Telecommunications Provider Right-of-Way Use Agreement TELECOMMUNICATIONS PROVIDER
RIGHT-OF-WAY USE AGREEMENT
This Telecommunications Provider Right-of-Way Use Agreement ("Agreement") is made
this f y day of July, 2014, by and between the CITY OF SALINA, KANSAS, a Kansas
municipal corporation (the "City"), and KANSAS FIBER NETWORK, LLC, a Kansas limited
liability company("KFN").
RECITALS
A. KFN is an entity authorized by the Kansas Corporation Commission to provide
telecommunications services within the State of Kansas, and has requested permission to install
private underground fiber optic cabling and related facilities for exclusively data transmission in the
City's public right-of-way.
B. Pursuant to K.S.A. 17-1902, KFN is authorized to construct, maintain, and operate
its telecommunications facilities within the City's public right-of-way, subject to the City's
reasonable regulations related to the public health, safety, and welfare.
C. KFN does not presently intend to use the proposed facilities or public right-of-way
for the provision of any services for which a franchise is required by the City, including but not
limited to "cable services," "open video system services," "local exchange services," or
"competitive infrastructure provider services."
D. The City has found it to be in the public interest to grant permission to KFN to
install the underground fiber optic cabling and related facilities in the right-of-way, subject to the
terms and conditions outlined below.
THE PARTIES THEREFORE AGREE:
1. Definitions. For the purpose of this Agreement, the following words and
phrases and their derivations shall have the following meanings:
"Public right-of-way" means only the area of real property in which the City has a
dedicated or acquired right-of-way interest in the real property. It shall include the area
on, below or above the present and future streets, alleys, avenues, roads, highways,
parkways or boulevards dedicated or acquired as right-of-way. The term does not include
the airwaves above a right-of-way with regard to wireless telecommunications or other
nonwire telecommunications or broadcast service, easements obtained by utilities or
private easements in platted subdivisions or tracts.
"Telecommunications services" means providing the means of transmission, between or
among points specified by the user, of information of the user's choosing, without change
in the form or content of the information as sent and received.
2. Grant. Subject to the terms and conditions of this Agreement, including but not
limited to the franchise obligations set forth in Section 3 below, KFN is hereby granted the non-
exclusive right to install, maintain, and use a private underground data transmission fiber optic
system and related appurtenances (the "Facilities") within the City's public right-of-way, for the
purpose of providing telecommunications services.
3. Franchise. KFN acknowledges and agrees that this Agreement is not a franchise
agreement under K.S.A. 12-2001 et seq., and KFN must obtain a franchise, at the City's
discretion and in accordance with applicable law, before KFN may use the public right-of-way
for the provision of any telecommunications services for which a franchise may be required by
the City, including but not limited to "cable services" (as defined by 47 U.S.C. § 522(6); "open
video system services" (without payment of fees permitted by 47 U.S.C. § 573(c)(2)(B)), "local
exchange services" (as defined in K.S.A. 12-2001(c)(7)), or "competitive infrastructure provider
services" (as defined in K.S.A. 17-1902(a)(4)); or for the provision of any telecommunications
services for which the City receives a "gross revenues" fee under the terms of any franchise
between the City and another telecommunications provider, but subject to KFN's right to
challenge in good faith any such franchise requirement. If KFN is required by law or this
Section 3 to enter into a contract franchise ordinance with the City, the parties agree to act in
good faith in promptly negotiating a contract franchise ordinance.
4. Term. The initial term of this Agreement shall be for a period beginning on the
date of this Agreement, and ending June 30, 2019. Thereafter, this Agreement will automatically
renew for additional one (1) year terms, unless either party notifies the other party of its intent to
terminate the Agreement at least ninety (90) days before the expiration of the then current term.
Any such additional term shall be deemed a continuation of this Agreement on the same terms
and conditions.
5. Compliance with Law and Other City Regulations.
A. The authority of KFN to use and occupy the public right-of-way shall
always be subject and subordinate to the reasonable public health, safety, and welfare
requirements and regulations of the City. The City may exercise its home rule powers in
its administration and regulation related to the management of the public right-of-way,
provided that any such exercise must be competitively neutral and may not be unreasonable or
discriminatory. KFN shall be subject to all applicable laws and statutes, and all rules,
regulations, policies, resolutions and ordinances now or hereafter adopted by the City.
B. As a condition of this Agreement, KFN is required to obtain and is
responsible for any necessary permit, license, certification, grant, registration or any other
authorization required by any appropriate governmental entity, including, but not limited to,
the City, the Federal Communications Commission (FCC) or the Kansas Corporation
Commission (KCC). KFN shall also comply with all applicable laws, statutes and city
ordinances, resolutions, and regulations (including but not limited to those relating to the
construction in and use of the public right-of-way). The forgoing compliance obligations shall
be subject to KFN's right to challenge in good faith such laws, statutes, and city ordinances,
resolutions, and regulations.
6. Use of the Public Right-of-Way.
A. Pursuant to K.S.A. 17-1902, and amendments thereto, and subject to the
provisions of this Agreement, KFN shall have the right to construct, maintain and operate its
facilities along, across, upon and under the public right-of-way. Such facilities shall be so
constructed and maintained so as not to obstruct or hinder the usual travel or public safety on
such public ways or obstruct the legal use by other utilities. All installations of KFN's facilities
under hard surfaces shall be installed via the boring method, unless otherwise agreed by the City
upon KFN's showing of undue hardship. For purposes of this requirement, the term "hard
surfaces" shall mean concrete, asphalt, or any other hard surface with similar structural
characteristics, including but not limited to streets, sidewalks, and driveways.
B. KFN and its contractor shall coordinate the placement of the facilities in a
manner which minimizes adverse impact on public improvements, as reasonably determined by the
City. Where placement is not otherwise regulated, the facilities shall be placed with adequate
clearance from such public improvements so as not to impact or be impacted by the public
improvements. Because of the number of public utility facilities located along the right-of-way,
KFN and its contractor shall stake the route to confirm the horizontal location and vertical elevation
of the water, sanitary sewer and storm sewer lines along the route, and obtain the City's approval of
such horizontal and vertical locations prior to beginning installation of any facilities. Except as
otherwise approved by the City, which approval shall not be unreasonably withheld, KFN shall
install the facilities a minimum of five (5) horizontal feet and two (2) vertical feet away from water,
sanitary and storm sewer lines along the route.
C. All of the materials, plans, and installation of the facilities shall be approved
by or as directed by the City and in accordance with any other approved specifications for
performing work in the public right-of-way. Prior to construction, reconstruction, or relocation of
any facilities in the public right-of-way, KFN shall, at its own cost and expense, prepare and deliver
to the City for approval, plans and specifications of the proposed installation. Such approval shall
not be unreasonably withheld,delayed, or conditioned.
D. KFN shall keep and maintain accurate records and as-built drawings
depicting accurate horizontal and vertical locations of the facilities as constructed or reconstructed
in the public right-of-way, which shall be made available to the City upon request. All points of the
facilities shall be horizontally located from street centerline, or section or quarter section lines or
corners. Vertical locations or all points of facilities shall consist of elevations in either City datum
or United States Geological Survey datum.
E. Nothing in this Agreement shall be interpreted as granting KFN the
authority to construct, maintain or operate any facility or related appurtenance on property
owned by the City outside of the public right-of-way.
F. KFN shall participate in the Kansas One Call utility location program with
respect to all of its facilities in the public right-of-way.
7. Limitation on Use of Portion of Right-of-Way. The City shall have the
authority to prohibit the use or occupation of a specific portion of public right-of-way by KFN
due to a reasonable public interest necessitated by public health, safety and welfare so long as
the authority is exercised in a competitively neutral manner and is not unreasonable or
discriminatory. A reasonable public interest shall include but not be limited to the following:
A. The prohibition is based upon a recommendation of the city engineer, is
related to public health, safety and welfare, and is nondiscriminatory among providers, including
incumbent providers;
B. KFN has rejected a reasonable, competitively neutral and
nondiscriminatory justification offered by the City for requiring an alternate method or alternate
route that will result in neither unreasonable additional installation expense nor a diminution of
service quality;
C. The City reasonably determines, after affording KFN reasonable notice
and an opportunity to be heard, that a denial is necessary to protect the public health and
safety and is imposed on a competitively neutral and nondiscriminatory basis; or
D. The specific portion of the public right-of-way for which KFN seeks
use and occupancy is environmentally sensitive as defined by state or federal law or lies within
a previously designated historic district as defined by local, state or federal law.
8. Repair of Damage to Right-of-Way. KFN shall repair all damage to the
public right-of-way caused by the activities of KFN, or of any agent, affiliate, employee, or
subcontractor of KFN, while occupying, installing, repairing or maintaining facilities in the
public right-of-way and return the right-of-way to its functional equivalence before the damage
pursuant to the reasonable requirements and specifications of the City. If KFN fails to make the
repairs required by the City, the City may make those repairs and charge KFN the costs of those
repairs. If the City incurs damages as a result of a violation of this subsection,then the City shall
have a cause of action against KFN for violation of this subsection, and may recover its
damages, including reasonable attorney fees, if KFN is found liable by a court of competent
jurisdiction.
9. Fees. Within fifteen (15) days of the effective date of this Agreement, KFN shall
pay to the City a one-time application fee of $1,500.00. The parties agree that such fee
reimburses the City for its reasonable and actual costs of reviewing and approving this
Agreement. In addition, pursuant to K.S.A. 17-1902(n), and amendments thereto, the City may
assess any of the following fees against KFN for use and occupancy of the public right-of-
way, provided that such fees reimburse the City for its reasonable, actual and verifiable costs
of managing the public right-of-way, and are imposed on all such providers in a
nondiscriminatory and competitively neutral manner:
A. A permit fee in connection with issuing each construction permit to set
fixtures in the public right-of-way within the City, to compensate the City for issuing,
processing and verifying the permit application.
B. An excavation fee for each street or pavement cut to recover the costs
associated with construction and repair activity of KFN, its assigns, contractors and
subcontractors with the exception of construction and repair activity required pursuant to
subsection (1) of K.S.A. 17-1902 related to construction and maintenance activities directly
related to improvements for the health, safety and welfare of the public; provided, however,
imposition of such excavation fee must be based upon a regional specific or other appropriate
study establishing the basis for such costs which takes into account the life of the city street
prior to the construction or repair activity and the remaining life of the city street. Such
excavation fee is expressly limited to activity that results in an actual street or pavement cut.
C. Inspection fees to recover all reasonable costs associated with the City's
inspection of the work of KFN, its assigns, contractors, and/or subcontractors in the right-of-
way.
D. Repair and restoration costs associated with repairing and restoring the
public right-of-way because of damage caused by KFN, its assigns, contractors, and/or
subcontractors in the right-of-way.
10. Indemnification and Hold Harmless.
A. It shall be the responsibility of KFN to take adequate measures to protect
and defend its facilities in the public right-of-way from harm or damage. If KFN fails to
accurately or timely locate facilities when requested, in accordance with the Kansas
Underground Utility Damage Prevention Act, K.S.A. 66-1801 et seq., it shall have no claim for
costs or damages against the City and its authorized contractors unless such parties are
responsible for the harm or damage caused by their gross negligence or intentional conduct. The
City and its authorized contractors shall be responsible to take reasonable precautionary
measures including calling for utility locations and observing marker posts when working near
KFN's facilities.
B. KFN shall indemnify and hold the City and its officers and employees
harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees
(including reasonable attorney fees and costs of defense), proceedings, actions, demands, causes
of action, liability and suits of any kind and nature, including personal or bodily injury (including
death), property damage or other harm for which recovery of damages is sought, to the extent
that it is found by a court of competent jurisdiction to be caused by the negligence of KFN, any
agent, officer, director, representative, employee, affiliate or subcontractor of KFN, or its
respective officers, agents, employees, directors or representatives, while installing, repairing or
maintaining facilities in the public right-of-way.
C. The indemnity provided by this subsection does not apply to any liability
resulting from the negligence of the City, its officers, employees, contractors or subcontractors.
If KFN and the City are found jointly liable by a court of competent jurisdiction, liability
shall be apportioned comparatively in accordance with the laws of the State of Kansas
without, however, waiving any governmental immunity available to the City under state law
and without waiving any defenses of the parties under state or federal law. This section is solely
for the benefit of the City and KFN and does not create or grant any rights, contractual or
otherwise,to any other person or entity.
11. Insurance and Performance Bond.
A. During the term of this Agreement, KFN shall obtain and maintain
insurance coverage at its sole expense, with financially reputable insurers that are licensed to do
business in the State of Kansas. If KFN elects to use the services of an affiliated captive
insurance company for this purpose, that company shall possess a certificate of authority from
the Kansas Insurance Commissioner. KFN shall provide not less than the following insurance:
i. Workers' compensation as required by the laws of the State of Kansas,
with an employers' liability limit equal to the amount required by law.
ii. Commercial general liability, including coverage for contractual liability
and completed operations liability, on an occurrence basis and not a claims
made basis, with an aggregate limit of not less than Two Million Dollars
($2,000,000.00) combined single limit per occurrence for bodily injury,
personal injury, and property damage liability. The City shall be included
as an additional insured with respect to liability arising from KFN's
operations under this Agreement.
B. KFN shall, as a material condition of this Agreement, prior to the
commencement of any work in the public right-of-way, deliver to the City a certificate of
insurance or evidence of self-insurance, satisfactory in form and content to the City, evidencing
that the above insurance is in force. KFN shall timely notify the City if the insurance is
cancelled or materially changed with respect to areas and entities covered. KFN shall make
available to the City on request the policy declarations page and a certified copy of the policy in
effect, so that limitations and exclusions can be evaluated for appropriateness of overall
coverage.
C. KFN shall, as a material condition of this Agreement, prior to the
commencement of any work in the public right-of-way, deliver to the City a performance bond in
the amount of$50,000.00, payable to the City to ensure the appropriate and timely performance
in the construction and maintenance of facilities located in the public right-of-way. The required
performance bond must be with a good and sufficient surety, authorized to transact business in
the State of Kansas, and satisfactory to the City in form and substance.
12. Notification of Claims. KFN or the City shall promptly advise the other in
writing of any known claim or demand against KFN or the City related to or arising out of KFN's
activities in a public right-of-way.
13. Removal or Relocation of Facilities. If requested by the City, in order to
accomplish construction and maintenance activities directly related to improvements for the
health, safety, and welfare of the public, KFN shall remove its facilities from the public right-
of-way or shall relocate or adjust its facilities within the public right-of-way at no cost to the
City. Such relocation or adjustment shall be completed as soon as reasonably possible within
the time set forth in any request by the City for such relocation or adjustment. Any damages
suffered by the City or its contractors as a result of KFN's failure to timely relocate or adjust its
facilities shall be borne by KFN.
14. Termination. In the event of KFN's breach of this Agreement, the City shall
terminate this Agreement in accordance with the following procedure. The City
e the right to terns a g g p >
shall first serve a written notice upon KFN, setting forth in detail the nature of the breach, and
KFN shall have thirty (30) days thereafter to cure such breach. If the breach remains uncured at
the end of the thirty (30) day period, the City may terminate this Agreement by serving written
notice upon KFN.
15. Transfer and Assignment. This Agreement shall be assignable only to a
telecommunications provider which holds a current and valid certificate of convenience and
authority from the Kansas Corporation Commission, and any such assignment shall be
preconditioned upon the City receiving written notice of the assignment (including notice of the
name and address of the assignee and contact information) and a copy of the assignee's current
certificate of convenience and authority no later than seven (7) days prior to the effective date of
the assignment. Any attempted assignment of this Agreement without satisfying the
requirements of this section shall be void.
16. Reservation of Rights. In entering into this Agreement, neither the City's nor
KFN's present or future legal rights, positions, claims, assertions or arguments before any
administrative agency or court of law are in any way prejudiced or waived. By entering into the
Agreement, neither the City nor KFN waive any rights, but instead expressly reserve any and all
rights, remedies, and arguments the City or KFN may have at law or equity, without limitation,
to argue, assert, and/or take any position as to the legality or appropriateness of this Agreement
or any present or future laws, ordinances, and/or rulings which may be the basis for the City and
KFN entering into this Agreement.
17. Notices. KFN shall at all times maintain on file with the City a point of contact;
or a telephone number that allows the City to reach an authorized person, who shall be available
at all times to act on behalf of KFN in the event of an emergency. Emergency notice by KFN to
the City may be made by telephone to the City Clerk or the Public Works Director. All other
notices between the parties shall be in writing and shall be made by personal delivery, or by
depositing such notice in the.U.S. Mail or Certified Mail, return receipt requested. Any notice
shall be deemed delivered five (5) calendar days after the date of such deposit in the U.S. Mail
unless otherwise provided. "Business day" for purposes of this section shall mean Monday
through Friday, City-observed holidays excepted.
City: KFN:
City Clerk Kansas Fiber Network
City of Salina, Kansas Attn: Steven Dorf, President and CEO
P.O. Box 736 121 N. Mead, Ste 200
Salina, KS 67402-0736 Wichita, KS 67202
18. Failure to Enforce. The failure of either party to enforce and remedy any
noncompliance with the terms and conditions of this Agreement shall not constitute a waiver of
rights nor a waiver of the other party's obligations as provided herein.
19. Severability. If any clause, sentence, or section of this Agreement shall be held
to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the
remainder, as a whole or any part hereof, other than the part declared invalid.
20. Force Majeure. Each and every provision hereof shall be subject to acts of God,
fires, strikes, riots, floods, war and other disasters beyond KFN's or the City's control.
21. Applicable Law. This Agreement is made under and in conformity with the
laws of the State of Kansas.
EXECUTED the day and year first above stated.
CITY OF S• . ,KANSAS
By:
Aaron . Householter,Mayor
ATTEST:
lei AIM
Sh di Wicks, CMC, City Clerk
KANSAS FI: ' '.' '': `Y"' C
By: . A.
Name: .SIIM j.
Title: AiQtS/}E.v r/lam- '_
ACKNOWLEDGEMENTS
STATE OF KANSAS, COUNTY OF SALINE, SS: /
This instrument was acknowledged before me on /1 , 2014 by Aaron K.
Householter as Mayor and by Shandi Wicks as ' C'I�rk of Salina, K sas.
dXl_.., - (I
Notary Public
CATHY BOLL
agifl Notary Public-State of Kan
My Appt.Expires e- z0-
STATE OF KANSAS, COUNTY OF SPo i'c-� ; SS:
This instrument was acknowledged before me on July 2-/s-C- , 2014 by
SL`eveA Do y-S as sio�-e i,`e of Kansas Fiber
Netwo,rk T i C
ESTHER JANSSEN 1.; *-1 9 Z e. a e.-"7"Th
Notary Public-State of K nsas Notary Public
My Apot.Expires y7/67/