14-10742 IdeaTek Telcom, LLC. Amended Franchise Agreement1
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Summary published in The Salina Journal on August 23, 2014.
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ORDINANCE NO. 14-10742
AN ORDINANCE AMENDING AND RESTATING ORDINANCE NUMBER 13-10712
TO AMEND IDEATEK TELCOM, LLC F/K/A WILDFLOWER
TELECOMMUNICATIONS, LLC'S EXISTING TELECOMMUNICATIONS
FRANCHISE.
WHEREAS, IdeaTek Telcom, LLC f/k/a Wildflower Telecommunications, LLC
("IdeaTek"), a wholly-owned subsidiary of IdeaTek Systems, Inc., a Kansas corporation, owns,
maintains, operates and/or controls, in accordance with regulations promulgated by the Federal
Communications Commission and the Kansas Corporation Commission (hereinafter "KCC"),
telecommunications networks serving IdeaTek's wireline customers through a fiber network and
other wireless carrier customers through fiber -fed distributed antenna system facilities. Such
facilities are in public rights-of-way ("ROW"), among other locations, in the state of Kansas.
WHEREAS, pursuant to Ordinance Number 13-10712, which was passed and
approved by the Governing Body on August 12, 2013, IdeaTek was granted a non-exclusive
contract franchise to provide local exchange service within the City of Salina, Kansas ("Existing
Franchise"); pursuant to the authority granted under the Existing Franchise, IdeaTek has
installed and constructed, and is currently operating, certain telecommunications facilities,
including a fiber network, in the City's ROW.
WHEREAS, IdeaTek desires to continue to operate and maintain its existing facilities
in the City's ROW, including the existing fiber network and future additions or modifications
thereto, for the purpose of providing "telecommunications services" in the capacity of a
"provider," as such terms are defined under K.S.A. 17-1902, which services shall include "local
exchange service," as defined in K.S.A. 12-2001 (collectively, the "IdeaTek Services").
WHEREAS, IdeaTek now requests an amendment to the Existing Franchise to grant
IdeaTek permission to install additional facilities and components of the fiber network,
including distributed antenna system facilities, for purposes of leasing, licensing, selling, or
otherwise conveying the facilities, or the capacity or bandwidth of such facilities, to one or more
third -party customers ("Customers"), who are presently under contract with IdeaTek and will
use the facilities to provide wireless telecommunications services directly to end users within the
corporate limits of the City of Salina, Kansas ("Infrastructure Services").
WHEREAS, some features of the expanded fiber network, including the distributed
antenna system facilities (collectively, the "Network") include, without limitation, antenna
nodes, poles, equipment cabinets, underground and above ground fiber optic cable, fiber
handholes and enclosures, fiber repeaters and related equipment, and will include other
equipment as technology evolves, in a configuration and at locations to be filed, identified and
approved through the City permit process ("Facility" or "Facilities").
WHEREAS, portions of a specific component of the Facilities, a distributed antenna
system ("DAS Facility" or "DAS Facilities"), may be located on streetlights, stand-alone poles,
third party utility poles, and other structures located on or within the ROW, to the extent
permitted under this ordinance, and will be connected to underground and above ground fiber
optic cable, fiber handholes and enclosures, fiber repeaters, and related equipment.
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WHEREAS, the Governing Body finds that IdeaTek meets all the lawful
requirements to obtain the requested amendment to the Existing Franchise, and therefore
approves IdeaTek's request to amend and restate the Existing Franchise to establish the terms
and conditions under which IdeaTek may access the City's ROW to locate, place, attach, install,
operate, use, control, repair, replace, upgrade, enhance and maintain the Facilities, including the
DAS Facilities, for the purposes of providing the IdeaTek Services and the Infrastructure
Services, SO NOW THEREFORE,
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF SALINA,
KANSAS:
SECTION 1
GRANT OF FRANCHISE
1.1 Grant of Non -Exclusive Franchise. IdeaTek is hereby granted a non-exclusive
contract franchise to locate, construct, place, attach, install, operate, use, control, repair, replace,
upgrade, enhance and maintain the Facilities in the ROW, at IdeaTek's sole cost and expense
and subject to the terms and conditions of this ordinance (the "Agreement"), for the purposes of:
(a) providing the IdeaTek Services within the City of Salina, Kansas, in the capacity of a
"provider" under K.S.A. 17-1902(a)(2); and (b) providing the Infrastructure Services to
IdeaTek's Customers, in the capacity of a "competitive infrastructure provider" under K.S.A.
17-1902(a)(4). For purposes of this Agreement, the term "ROW" 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.
1.2 Compliance with Laws. This Agreement is subject to the terms and
conditions of all applicable federal, state and local Laws and the Parties shall comply with any
such Laws in the exercise of their rights and performance of their obligations under this
Agreement. "Laws" or "Law" as used in this Agreement means any and all statutes,
constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits, approvals or
other applicable requirements of the City or other governmental entity or agency having joint or
several jurisdiction over any aspect of this Agreement or the Parties' activities under this
Agreement, whether now existing or hereafter adopted, including but not limited to the City's
right-of-way management ordinance ("ROW Ordinance") and the City's zoning and land use
laws ("Zoning Regulations") to the extent they are not inconsistent with state and federal law
regulating use of the ROW, and any related laws, rules, or regulations and amendments thereto
relating to the use and occupancy of the ROW.
1.3 Permits and Approvals. As a condition of this Agreement, IdeaTek is
required to obtain and is responsible for any necessary permit, license, certification, grant,
registration, and any other authorization or approval required by the City (collectively, the
"Permits and Approvals") relating to the installation, maintenance, and repair of the Facilities or
Network and for the use and occupancy of the ROW, including but not limited to all Permits and
Approvals required under the City's ROW Ordinance and Zoning Regulations. The City shall
process each valid and administratively complete application for requested Permits and
Approvals in accordance with the time requirements of applicable state and federal Laws, and
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shall not unreasonably or unlawfully withhold or delay any Permits and Approvals. Any
conditions or requirements attached to Permits and Approvals shall be in accordance with
federal, state, and local Laws.
SECTION 2
INSTALLATION OF THE NETWORK
2.1 Installation Specifications. The installation of the Facilities shall be made in
accordance with plans and specifications as may be approved by the City and after obtaining all
necessary Permits and Approvals. The location, depth of the fiber underground, and any other
requirements shall be approved in writing by the City prior to construction of the Facilities at
that specific location, approval of which shall not be unreasonably withheld, conditioned or
delayed. Approval of plans and specifications and the issuance of any Permits and Approvals by
the City shall not release IdeaTek from the responsibility for, or the correction of, any errors,
omissions or other mistakes that may be contained in the plans, specifications and/or Permits
and Approvals. IdeaTek shall be responsible for notifying the City and all other relevant parties
immediately upon discovery of such omissions and/or errors and with obtaining any
amendments for corrected City -approved permits, as may be necessary. IdeaTek shall be
responsible for all costs associated with the permitting process, including, but not limited to,
repairs and replacement of City ROW. IdeaTek shall undertake and perform any work
authorized by this Agreement in a skillful and workmanlike manner.
2.2 Compliance with Permits. All work within the City's ROW shall be
performed in compliance with all applicable Permits and Approvals, and all applicable
regulatory requirements.
2.3 Traffic Control. The installation of the Facilities shall be performed in accordance
with traffic control plans for temporary construction work that are approved by the City, which
approval shall not be unreasonably withheld, conditioned or delayed.
2.4 Construction Schedule. If requested by the City, at least ten (10) days prior to the
installation of the Facilities, IdeaTek shall deliver to the City a schedule for the proposed work
related to the construction of the Facilities, as well as a list of the names of all agents and
contractors authorized by IdeaTek to access the ROW on IdeaTek's behalf.
2.5 Coordination of Work. IdeaTek shall be responsible for coordination of work to
avoid any interference with existing utilities, substructures, facilities and/or operations within
the City's ROW. IdeaTek shall be the City's point of contact and all communications shall be
through IdeaTek. IdeaTek shall be solely responsible for communicating with Kansas One -Call.
2.6 Placement of Facilities. IdeaTek shall coordinate the placement of its
Facilities in the ROW in a manner that minimizes adverse impact on public improvements, as
reasonably determined by the City Engineer.
2.7 Existing Utility Poles. IdeaTek shall obtain a properly executed agreement with the
owner of any existing pole or structure, in addition to any required Permits and Approvals,
before attaching its Facilities to an existing utility pole or structure in the ROW.
2.8 New Streetlight Poles and other City Facilities. IdeaTek may build new
streetlight poles or other such facilities required for the installation of the Facilities in
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accordance with the City's ROW Ordinance, Zoning Regulations, and other applicable City,
state and federal specifications and Laws ("New Poles"). The City encourages the conservation
of the ROW by sharing of space by all utilities and ROW users. Accordingly, the Parties agree
that in areas where there are existing poles, IdeaTek will work with the owner of that existing
pole to collocate the DAS Facility, and IdeaTek will only pursue the installation of a new pole
when the existing pole owner is unwilling to reasonably allow such attachment or where such
attachment is unfeasible from a safety, technical, and engineering (structural and radio
frequency coverage) perspective.
2.8.1 City Use of New Poles. The Parties understand and agree that the City
may use any New Poles for City purposes, including but not limited to streetlights and other
lighting so long as such use does not interfere with IdeaTek's use of its Network or Facilities.
IdeaTek shall reasonably cooperate with the City when using the New Poles. Except for the
installation of the lights and ancillary equipment on or in the New Poles and/or as set forth in
Section 2.8.2 below, IdeaTek shall not be responsible for maintenance, repair, or replacement of
City -owned lights, light bulbs and equipment, or equipment owned by third parties authorized
by the City, on the New Poles.
2.8.2 Damage to New Poles. If a New Pole falls or is damaged such that
there is an imminent threat of harm to persons or property, then the City may cause the New
Pole to be removed to the side of the street or a location that City believes reasonably eliminates
the risk of such imminent threat of harm to persons or property. IdeaTek shall, after written
notice from the City that any New Pole has been damaged or removed, cause the New Pole to be
repaired or replaced within thirty (30) days after the City's written notice. The cost to repair
and/or replace any New Pole, including the replacement City streetlight, bulb and ancillary
equipment shall be paid by IdeaTek; provided, however, that if the New Pole is damaged or
destroyed by the City or a third party user that the City has given the right to use the New Pole,
then the City and/or its third party user shall pay the cost to repair and/or replace the New Pole.
To the extent that IdeaTek seeks reimbursement from a third party either directly or through
applicable insurance, the City shall assign to IdeaTek any rights the City may have against such
third party for such claim.
SECTION 3
COMPENSATION AND FEES
3.1 Franchise and Permit Fees. IdeaTek is solely responsible for the payment of
all lawful franchise and permit fees in connection with IdeaTek's performance under this
Agreement.
3.1.1 5% Franchise Fee for all Gross Revenues. In consideration of this
Franchise Agreement, IdeaTek agrees to remit to the City a franchise fee of five percent (5%) of
Gross Revenues ("Franchise Fee"). "Gross revenues" means and includes:
(1) All revenues derived from the Infrastructure Services, including
but not limited to RF telecommunications service revenue and any other operating revenue
derived from leasing, licensing, or otherwise selling or conveying the right to use IdeaTek's dark
fiber or other Facilities, and indefeasible rights of use ("IRU") fees; and
(2) With respect to the IdeaTek Services, only those revenues derived from
services provided within the corporate boundaries of the City which include: (A) Recurring local
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exchange service for business and residence which includes basic exchange service, touch tone,
optional calling features and measured local calls; (B) recurring local exchange access line
services for pay phone lines provided by a telecommunications local exchange service provider
to all pay phone service providers; (C) local directory assistance revenue; (D) line status
verification/busy interrupt revenue; (E) local operator assistance revenue; and (F) nonrecurring
local exchange service revenue which shall include customer service for installation of lines,
reconnection of service and charge for duplicate bills. All other revenues, including, but not
limited to, revenues from extended area service, the sale or lease of unbundled network
elements, nonregulated services, carrier and end user access, long distance, wireless
telecommunications services, lines providing only data service without voice services processed
by a telecommunications local exchange service provider, private line service arrangements,
internet, broadband and all other services not wholly local in nature are excluded from gross
revenues. Gross revenues shall be reduced by bad debt expenses that are attributable to Sections
(A) through (F) as referenced within this Section 3.1.1. Uncollectible and late charges shall not
be included within gross revenues.
3.1.2 Timing of Franchise Fee Payment. IdeaTek shall pay its Franchise Fee on
the 15'' day of the second month following the month in which the Gross Revenue is received.
3.1.3 Fees. IdeaTek shall pay to City all required fees and/or deposits to
recover the City's costs associated with the review and approval of all Permits and Approvals
and managing the ROW, and such other fees allowed by Law associated therewith, provided that
such fees and/or deposits reimburse the City for its reasonable, actual and verifiable costs of
managing the ROW, including but not limited to reviewing and approving the application(s) for
Permits and Approvals. These fees must be competitively neutral and may not be unreasonable
or discriminatory.
3.2 Accounting Matters. IdeaTek shall keep accurate books of account at its
principal office in Buhler, Kansas, or such other location of its choosing for the purpose of
determining the amounts due to the City under this Section 3. No more than once per year, the
City may inspect IdeaTek's books of account relative to the application of the franchise fees
required under Section 3. 1.1 of this Agreement any time during regular business hours on thirty
(30) days' prior written notice and may audit the books from time to time at the City's sole
expense, but in each case only to the extent necessary to confirm the accuracy of payments due
under Section 3.1. The City agrees to hold in confidence any non-public information it learns
from IdeaTek to the fullest extent permitted by Law.
SECTION 4
ACCESS TO FACILITIES
4.1. IdeaTek Access to Facilities for Repair. IdeaTek will be given reasonable
access to each of the Facilities in the City ROW for the purposes of routine installation, repair,
maintenance or removal of Facilities. If any such activities have the potential to result in an
interruption of the City's use of New Poles, IdeaTek shall provide the City with a minimum of
three (3) days prior written notice of such activities. Such activities shall, to the extent feasible,
be done with minimal impairment, interruption, or interference to City use of the New Poles.
4.2 City Observation and Inspection. The City shall have commercially reasonable
access to observe and inspect the Facilities, and any work conducted by IdeaTek during the
installation, maintenance and/or repairs of the Facilities.
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SECTION 5
TERM AND TERMINATION
5.1 Term. The initial term of this Agreement shall be for period beginning on the
effective date established by Section 15.3 below, and ending on December 31, 2016. Thereafter,
this Agreement shall automatically renew for additional consecutive one (1) year terms, unless:
(a) IdeaTek has terminated its use of all of the Network within the ROW pursuant to Section 5.2
below; or (b) the City notifies IdeaTek, on or before the July Is' preceding the expiration of the
current term, of its intent to renegotiate terms of the renewal as allowed by then applicable law
to be effective as of the January Is' commencement of the next renewal term. In relation to any
renegotiation of terms of renewal under (b) above, the City agrees that it will not terminate
IdeaTek's right under this Agreement to place Facilities in the ROW unless terms of this
Agreement are breached and/or local, state, or federal law permit. If a controversy arises
regarding any action or decision of the City under this Section 5.1, IdeaTek shall be entitled to
request non-binding mediation, and the City agrees to participate, in good faith, in the
mediation. The mediation shall be located in Salina, Kansas. Any request for mediation shall
be made in writing and delivered to the City within thirty (30) days of the City's action or
decision giving rise to the controversy. In recognition of the potential that a change in law may,
by its terms, not affect an existing franchise, the Parties agree and stipulate that any change in
law shall be deemed to be in effect as of its general effective date for purposes of any potential
renegotiation of terms of renewal under (b) above. Any such additional term under this Section
5.1 shall be deemed a continuation of this Agreement and not as a new contract franchise
ordinance or amendment. Under no circumstances shall this Agreement exceed twenty (20)
years from the effective date hereof.
5.2 Termination of Use. Notwithstanding Section 5.1 above, IdeaTek may
terminate its use of any or all of the Network by providing the City with ninety (90) days prior
written notice. In the event of any such termination, IdeaTek's payment obligations to the City
shall terminate simultaneously with the termination of use, provided IdeaTek removes its
Facilities and restores the ROW, as set forth in Section 6 and in accordance with applicable
Laws, prior to the termination date.
SECTION 6
REMOVAL AND RELOCATION
6.1 Removal Due to Public Project and Other Causes. Upon receipt of a
written demand from the City pursuant to this Section 6, IdeaTek, at its sole cost and expense,
shall remove and relocate any part of the Network constructed, installed, used and/or
maintained by IdeaTek under this Agreement, whenever the City reasonably determines that the
removal and/or relocation of any part of the Network is needed for any of the following
purposes: (a) due to any work proposed to be done by or on behalf of the City or any other
governmental agency, including but not limited to, any change of grade, alignment or width of
any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and
installation, construction, maintenance or operation of any underground or aboveground
facilities such as sewers, water mains, drains, storm drains, pipes, gas mains, poles, power lines,
telephone lines, cable television lines and tracks; (b) because any part of the Network is
interfering with or adversely affecting the proper operation of City -owned light poles, traffic
signals, or other City facilities; (c) the City is mandated by law, a court order or decision, or
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the federal or state government to take certain actions that will cause or require the removal
of the Facilities from the public right of way; or (d) to protect or preserve the public health,
safety and welfare. The City shall cooperate with IdeaTek in relocating any portion of the
Network removed pursuant to this Section 6.1 in a manner that allows IdeaTek to continue
providing service to its customers, including, but not limited to, expediting approval of any
necessary Permits and Approvals required for the relocation of that portion of the Network
relocated under this Section 6.1. No permitting or other fees may be charged by the City for a
removal occurring under this Section.
6.2 Removal Due to Termination. No later than ninety (90) days after expiration
or termination of this Agreement pursuant to the provisions of this Agreement, IdeaTek shall, at
its sole cost and expense, remove the Network or the terminated portion thereof and, if such
removal disturbs the locations or adjacent property (including City ROW or City real property),
restore the ROW, each Facility, and any adjacent property to its original condition, reasonable
wear and tear excepted, and further excepting landscaping and related irrigation equipment or
other aesthetic improvements made by IdeaTek to the Facility or adjacent property. For New
Poles, IdeaTek shall install a new streetlight or facility as directed by City's Public Works
Director, or his or her designee. Alternatively, the City may allow IdeaTek, in the City's sole
and absolute discretion, to abandon the Network, or any part thereof, in place and convey it to
the City.
6.3 Abandonment. In the event IdeaTek ceases to operate and abandons the
Network, or any part thereof, for a period of ninety (90) days or more, IdeaTek shall, at its sole
cost and expense and within the time period specified in Section 6.2, vacate and remove the
Network or the abandoned part thereof. If such removal disturbs the Facility or adjacent
property (including City ROW or City real property), IdeaTek shall also, at its sole cost and
expense, restore the ROW, each Facility, and any adjacent property to its original condition,
reasonable wear and tear excepted, and further excepting landscaping and related irrigation
equipment or other aesthetic improvements made by IdeaTek to the Facility or adjacent
property. Alternatively, the City may allow IdeaTek, in the City's sole and absolute discretion,
to abandon the Network, or any part thereof, in place and convey it to the City.
6.4 No Relocation Compensation. The parties understand and agree that neither
the City nor IdeaTek are entitled to compensation for any relocation of its Network that may be
required under Section 6.1. IdeaTek acknowledges that it is not entitled to relocation assistance
or any other compensation or benefits under the Uniform Relocation Assistance Act or any other
applicable provision of law upon termination of this Agreement.
SECTION 7
MAINTENANCE AND REPAIR
7.1 Electricity Use. IdeaTek shall pay for the electricity and other utilities
services it consumes in its operations at the rates charged by the servicing utility companies.
7.2 Maintenance and Repair. IdeaTek shall, at IdeaTek's sole cost and expense,
perform all maintenance and repairs reasonably needed to maintain the Network in good
condition and neat and orderly appearance, and in compliance with all applicable Laws. In the
event any part of the Network requires replacement because such part cannot be repaired,
IdeaTek shall, at IdeaTek's sole cost and expense, replace the irreparable part of the Network.
IdeaTek shall not cause rubbish, garbage or debris on or around its Network or the Facilities and
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shall not permit any rubbish, garbage or debris to accumulate on or around any enclosed areas
around the Facilities. If the City gives IdeaTek written notice of a failure by IdeaTek to maintain
the Facilities, IdeaTek shall use its best efforts to remedy such failure within forty-eight (48)
hours after receipt of such written notice.
7.3 Appearance. IdeaTek shall cooperate with the City and follow all legally
binding City policies and state and local ordinances with respect to aesthetics. The appearance
and placement of DAS Facilities must be aesthetically approved by the City, in a manner
consistent with other Permits and Approvals required under this Agreement.
7.4 Repair of ROW. IdeaTek shall be responsible for any damage, ordinary
wear and tear excepted, to street pavement, existing facilities and utilities, curbs, gutters,
sidewalks, landscaping, and all other public or private facilities, to the extent caused by
IdeaTek's construction, installation, maintenance, access, use, repair, replacement, relocation,
or removal of the Network in the City's ROW. IdeaTek shall promptly repair such damage
and restore the City's ROW and any affected adjacent property to a safe and satisfactory
condition to the City in accordance with the City's applicable street or ROW restoration
standards, or to the property owner if not the City. IdeaTek's obligations under this Section
7.4 shall survive for one (1) year past the completion of such reparation and restoration work
and return of the affected part of the City's ROW by IdeaTek to the City, or such longer
period as may be established by the City's ROW Ordinance or other applicable Laws.
7.5 Bond. IdeaTek shall provide a bond in an amount determined by the City to
represent the estimated cost of IdeaTek's obligations under Articles 3 and 4 of this Agreement,
which the City may require IdeaTek to increase from time to time to reflect the reasonable
estimated cost of performing such obligations, to secure performance of IdeaTek's obligations
under Sections 6 and 7, not to exceed $100,000.
SECTION 8
TAXES
8.1 Taxes. IdeaTek agrees that it will be solely responsible for the payment of
any and all applicable taxes, fees and assessments levied on its ownership, use and maintenance
of the Network and this Agreement. Pursuant to the Kansas Revenue and Taxation Code, the
City hereby advises, and IdeaTek recognizes and understands, that IdeaTek's use of the City's
ROW and/or the New Poles may create a possessory interest subject to real property taxation
and that IdeaTek may be subject to, and responsible for, the payment of real property taxes
levied on such interest. IdeaTek will cooperate with the Saline County Appraiser in providing
any information necessary for the Appraiser to make a property tax determination. IdeaTek
reserves the right to challenge any such assessment, and the City agrees to cooperate with
IdeaTek in connection with any such challenge.
SECTION 9
INDEMNIFICATION
9.1 Indemnity. IdeaTek shall indemnify, defend, and hold harmless the City,
its agents, representatives, officers, officials, employees and contractors, from and against
liability, claims, demands, losses, damages, fines, charges, penalties, administrative and
judicial proceedings and orders, judgments, and the costs and expenses incurred in connection
therewith, including reasonable attorneys' fees and costs of defense to the extent resulting
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from activities undertaken by IdeaTek pursuant to this Agreement, except to the extent arising
from or caused by the gross negligence or willful misconduct of the City, its agents,
representatives, officers, officials, employees or contractors. The City shall promptly notify
IdeaTek of any claim, action or proceeding covered by this Section 9.1.
9.2 Waiver of Claims. IdeaTek waives all claims, demands, causes of action,
and rights it may assert against the City on account of any loss, damage, or injury to any
portion of the Network, or any loss or degradation of the services provided by the Network
resulting from any event or occurrence except for any loss, damage, or injury to any portion
of the Network, or any loss or degradation of the services provided by the Network, resulting
from the gross negligence or willful misconduct of the City.
9.3 Limitation of City's Liability. The City will be liable, if at all, only for the
cost of repair to damaged portions of the Facilities arising from the gross negligence or
willful misconduct of the City, its employees, agents, or contractors. The City, its agents,
officers, employees, or contractors, shall not be liable for any damage from any cause
whatsoever to the Facilities, specifically including, without limitation, damage, if any,
resulting from the City's maintenance operations adjacent to the Facilities or from vandalism
or unauthorized use of the Facilities, except to the extent such damage is caused by the gross
negligence or willful misconduct of City, its agents, officers, employees or contractors. The
City will in no event be liable for indirect or consequential damages.
9.4 Limitation of IdeaTek's Liability. In no event shall IdeaTek be liable for
indirect or consequential damages in connection with or arising from this Agreement, or its
use of the Network, New Poles, and ROW.
SECTION 10
INSURANCE
10.1 Minimum Insurance Requirements. IdeaTek shall obtain and maintain, and
keep in full force and effect at its sole cost and expense for the duration of this Agreement,
insurance pursuant to the terms and conditions described in this Section.
10.1.1 General Liability. A policy or policies of Comprehensive General
Liability Insurance, with minimum limits of $2,000,000 combined single -limit per -occurrence
for bodily injury, personal injury, death, loss and property damage resulting from wrongful or
negligent acts by IdeaTek. If Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be twice the required occurrence limit.
10. 1.2 Automobile Liability. A policy or policies of Comprehensive Vehicle
Liability Insurance covering personal injury and property damage, with minimum limits of
$1,000,000 combined single -limit per -accident for bodily injury and property damage covering
any vehicle utilized by IdeaTek in performing the work covered by this Agreement
10. 1.3 Workers' Compensation and Employer's Liability. Workers'
compensation limits as required by the Labor Code, and Employer's Liability limits of
$1,000,000 per accident.
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10.2 Deductibles and Self -Insured Retentions. Any deductibles or self-insured
retentions shall not exceed $25,000; provided, however, if IdeaTek's insurance policy expressly
provides (i) that the insurer is required to pay covered claims with no deduction for all or any
part of IdeaTek's deductible, and (ii) insurer's obligation to pay covered claims is triggered
irrespective of whether or not the insured pays the deductible, then IdeaTek's deductible shall
not exceed $100,000 for Comprehensive General Liability Insurance, $100,000 for
Comprehensive Vehicle Liability Insurance and $250,000 for Workers' Compensation and
Employer's Liability coverage.
10.3 Other Insurance Provisions. The policies shall contain, or be endorsed to
contain, the following provisions:
10.3.1 General Liability and Automobile Liability Coverage.
(1) The City, and its agents, representatives, officers, officials, and
employees (the "Insureds") shall be named as additional insureds on all required insurance
policies, except for Workers' Compensation and Employer's Liability policies.
(2) IdeaTek's insurance coverage shall be primary insurance as respects
the Insureds with respect to the matters covered by this Agreement. Any insurance or self-
insurance maintained by the Insureds shall be in excess of IdeaTek's insurance and shall not
contribute with it.
(3) Any failure of IdeaTek to comply with reporting provisions of the
policies shall not affect coverage provided to the Insureds.
(4) IdeaTek's insurance shall apply separately to each of the Insureds
against whom a claim is made or suit is brought, except with respect to the limits of the insurer's
liability. Each of the Insureds is subject to all policy terms and conditions and has an obligation,
as an Insured, to report claims made against them to the insurance carrier.
10.3.2 Worker's Compensation and Employers Liability Coverage. The
insurer shall agree to waive all rights of subrogation against the Insureds for losses arising from
work performed by IdeaTek in the City's ROW.
10.3.3 All Coverages. Except for non-payment of premium, each insurance
policy required by this clause shall be endorsed to state that coverage shall not be cancelled or
reduced in coverage or limits by the insurer except after thirty (30) days' prior written notice has
been given to the City. If for any reason insurance coverage is canceled or reduced in coverage
or in limits, IdeaTek shall within two (2) business days of notice from the insurer, notify the
City by phone or fax of the changes to or cancellation of the policy and shall confirm such
notice via certified mail, return receipt requested.
10.4 Acceptability of Insurers. Insurance shall be placed with insurers with an
A.M. Best rating of no less than A -:VII.
10.5 Verification of Coverage. IdeaTek shall furnish the City with certificates of
insurance required by this Section 10. The certificates for each insurance policy are to be signed
by a person, either manually or electronically, authorized by that insurer to bind coverage on its
behalf. All certificates are to be received and approved by the City before work commences.
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10.6 Secondary Parties. In the event IdeaTek hires any subcontractors,
independent contractors or agents ("Secondary Parties") to locate, place, attach, install, operate,
use, control, replace, repair or maintain the Network, IdeaTek shall require the Secondary
Parties to obtain and maintain insurance commensurate to the work such Secondary Parties
perform.
SECTION 11
DEFAULT
11.1 Default.
11.1.1. Defined. A "Default" shall be deemed to have occurred under this
Agreement if a party fails to cure the breach of any term, condition, or covenant of this
Agreement within thirty (30) days after written notice from the other party specifying such
breach, provided that if the breach is of a nature that it cannot be cured within thirty (30)
days, a Default shall not have occurred so long as the breaching party has commenced to
cure within said time period and thereafter diligently pursues such cure to completion.
11.1.2. Remedies. Upon the occurrence of a Default, the non -defaulting
party may, subject to the terms of Section 9 (Limitation of Liability), terminate this
Agreement and pursue all remedies provided for in this Agreement and/or any remedies it
may have under applicable law or principles of equity relating to such breach.
11.2 No Waiver. A waiver by either party at any time of any of its rights as to
anything herein contained shall not be deemed to be a waiver of any breach of covenant or
other matter subsequently occurring.
11.3 Interest. If IdeaTek fails to make any payment under this Agreement when
due, such amounts shall accrue interest from the date such payment is due until paid,
including accrued interest, at an annual rate of ten percent (10%) or, if lower, the highest
percentage allowed by law.
SECTION 12
INTERFERENCE
12.1 Non -Interference with Non -Public Safety Communications Systems.
IdeaTek shall operate the Network in a manner that will not cause interference with City non-
public safety communications systems and to the services and facilities of other licensees or
lessees of City property located at or near the Facilities that were in operation prior to the
installation of the Network or that are in operation prior to any modifications IdeaTek may
make to the Network.
12.2 Non -Interference with Public Safety Communications Systems. IdeaTek's
Network and Facilities shall not cause interference with public safety communications
systems operated by City or any other public agency, regardless of the date such systems or
any components thereof have been placed in service. Nor shall IdeaTek's Network and
Facilities cause interference with the City's use of the New Poles for their intended purpose
as streetlights, traffic lights, and/or stand-alone light poles, as applicable.
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12.3 Correction of Interference. If such interference with the Facilities
described in Sections 12.1 or 12.2 occurs, IdeaTek shall, upon receipt of written notice
thereof from City, immediately commence commercially reasonable, diligent efforts to correct
or eliminate such interference. If such interference cannot be corrected by IdeaTek to the
reasonable satisfaction of City within the cure period set forth in the City's notice, which
notice shall not be less than thirty (30) days absent an emergency or danger to public health
and safety requiring shorter notice, such interference shall be deemed a material breach under
this Agreement and City may terminate this Agreement. Interference caused by actions of
IdeaTek's Customer(s) remains the responsibility of IdeaTek.
SECTION 13
MISCELLANEOUS PROVISIONS
13.1 Nonexclusive Use. IdeaTek acknowledges that this Agreement does not
provide IdeaTek with exclusive use of the City's ROW and that City retains the right to permit
other providers, persons, or entities to install equipment or devices in the City's ROW.
13.2 Notices. All notices which shall or may be given pursuant to this Agreement
shall be in writing and personally served or transmitted through first class United States mail, or
by express mail providing for overnight delivery, postage prepaid, to the following address or
such other address of which a party may give written notice:
City: City of Salina, Kansas
Attn: City Clerk
P.O. Box 736
Salina, Kansas 67402-0736
IdeaTek: IdeaTek Telcom, LLC
102 N. Main Street
Buhler, KS 67522
Attention: Daniel Friesen
With copies to:
C. Edward Watson
Foulston Siefkin
1551 N. Waterfront Pkwy, Suite 100
Wichita, KS 67228
cewatson(a)foulston.com
Such notice shall be deemed made when personally delivered; if mailed via first class U.S.
Mail, such notice shall be deemed made three (3) calendar days after the date of deposit in the
U.S. Mail; if mailed via express/overnight mail, such notice shall be deemed made two (2)
calendar days after the date of deposit in a designated overnight delivery mailbox or other like
facility. Actual notice shall be deemed adequate notice on the date actual notice occurred,
regardless of the method of service.
13.3 Reservation of Rights. In entering into this Agreement, neither the City's nor
IdeaTek'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 IdeaTek waive any rights, but instead expressly reserve any and
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all rights, remedies, and arguments the City or IdeaTek 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 IdeaTek entering into this Agreement.
13.4 Confidentiality. Information provided to the City under K.S.A. 12-2001 et
seq. shall be governed by confidentiality procedures in compliance with K.S.A. 45-215 and 66-
1220a, et seq., and amendments thereto.
13.5 Transfer/Assignment. If IdeaTek assigns, leases, enters into a franchise
license or concession agreement, changes ownership of the Network or voting control of
IdeaTek, or mortgages, encumbers, pledges, hypothecates or otherwise transfers any interest in
the Network or Facilities (including any transfer by operation of law of this Agreement or any
interest therein), IdeaTek will provide notice of the transfer within a reasonable time.
13.6 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, legal representatives, successors, assigns and
I transferees.
13.7 Entire Agreement; Modification; Waiver. This Agreement constitutes the
entire agreement between the parties relating to the subject matter hereof. All prior and
contemporaneous agreements, representations, negotiations, and understandings of the parties,
oral or written, relating to the subject matter hereof are merged into and superseded by this
Agreement. Any modification or amendment to this Agreement shall be of no force and effect
unless it is in writing and signed by the parties. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not
similar. No waiver or consent shall constitute a continuing waiver or consent or commit either
party to provide a waiver in the future except to the extent specifically set forth in writing. No
waiver shall be binding unless executed in writing by the party making the waiver.
13.8 Severability. If any one or more of the provisions of this Agreement shall be
held by a court of competent jurisdiction in a final judicial action to be void, voidable, or
unenforceable, such provision or provisions shall be deemed separable from the remaining
provisions of this Agreement and shall in no way affect the validity of the remaining portions of
this Agreement.
13.9 Governing Law. This Agreement shall be interpreted and enforced according
to, and the parties' rights and obligations governed by, the domestic law of the State of Kansas
or applicable federal law, without regard to laws regarding choice of applicable law. Any
proceeding or action to enforce this Agreement, or otherwise directly related to this Agreement
shall occur in the federal court with jurisdiction over Saline County or the state courts located in
Saline County, Kansas.
13.10 Survival of Terms. All of the terms and conditions in this Agreement related
to payment, removal due to termination or abandonment, indemnification, limits of City's
liability, attorneys' fees and waiver shall survive termination of this Agreement.
13.11 Captions and Paragraph Headings. Captions and paragraph headings used
herein are for convenience only. They are not a part of this Agreement and shall not be used in
construing this Agreement.
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13.12 Drafting. The parties agree that this Agreement is the project of joint
draftsmanship and that should any of the terms be determined by a court, or in any type of quasi-
judicial or other proceeding, to be vague, ambiguous and/or unintelligible, that the same
sentences, phrases, clauses or other wording or language of any kind shall not be construed
against the drafting party.
13.13 Execution in Counterparts. This Agreement may be executed in one or
more identical counterparts and all such counterparts together shall constitute a single
instrument for the purpose of the effectiveness of this Agreement.
13.14 Authority to Execute This Agreement. Each person or persons executing
this Agreement on behalf of a party, warrants and represents that he or she has the full right,
power, legal capacity and authority to execute this Agreement on behalf of such party and has
the authority to bind such party to the performance of its obligations under this Agreement
without the approval or consent of any other person or entity.
13.15 No Warranty by the City. The City makes no representations or warranties
regarding the suitability, condition or fitness of the locations for the installation, maintenance or
use of the New Poles or the Facilities.
13.16 Force Majeure. Each and every provision hereof shall be subject to acts of
God, fires, strikes, riots, floods, war and other disasters beyond IdeaTek's or the City's control.
13.17 Agreement Applicable Only to the Facilities and Network. This
Agreement shall not be construed to permit construction, installation, maintenance or use of any
facilities in the ROW or on any property other than the Facilities and Network as defined and
authorized herein.
13.18 No Abrogation of Legal Responsibilities. The Parties' execution of this
Agreement shall not abrogate, in any way, their respective responsibilities to comply with all
permitting requirements or to comply with all Laws with respect to their performance of the
activities permitted or obligations required under this Agreement.
13.19 Contractual Interpretation. In the interpretation and application of its rights
under this Agreement, the City will act in a reasonable, non-discriminatory, and competitively
neutral manner in compliance with all applicable federal, state, and local laws and regulations.
repealed.
SECTION 14
REPEALER
14.1 Repeal of Existing Franchise. Existing Ordinance No. 13-10712 is hereby
SECTION 15
IDEATEWS ACCEPTANCE; EFFECTIVE DATE
15.1 Acceptance of Terms. IdeaTek shall have thirty (30) days after the final
passage and approval of this ordinance to file with the City Clerk its acceptance, in writing, of
the provisions, terms and conditions of this ordinance, which acceptance shall be duly
acknowledged before an officer authorized by law to administer oaths; and when so accepted,
this ordinance and acceptance shall constitute a contract between the City and IdeaTek subject to
the provisions of the laws of the state of Kansas, and such contract shall be deemed effective on
the date of publication pursuant to Section 15.3 below.
15.2 Summary of Ordinance for Publication. Upon receipt of IdeaTek's written
acceptance of this ordinance, the City Clerk is directed to publish a summary of this ordinance
in the Salina Journal in the following format:
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Ordinance No. 14-10742 Summary
On August 18, 2014, the City of Salina, Kansas, passed Ordinance No. 14-10742.
The ordinance amends and restates Ordinance No. 13-10712 to amend IdeaTek
Telcom, LLC f/k/a Wildflower Telecommunications, LLC's existing
telecommunications franchise for purposes of additionally authorizing IdeaTek
Telcom, LLC to construct, operate, and maintain a distributed antenna system and
related facilities in the public right-of-way and prescribing the terms and conditions of
such authorization. A complete copy of the ordinance is available at www.salina-
ks.gov or in the office of the city clerk, 300 W. Ash Street, free of charge. This
summary is certified by the city attorney.
15.3 Effective Date of Ordinance. This ordinance shall take effect and be in full force
and after its passage by the governing body, receipt of IdeaTek's written acceptance of terms,
ublication of a summary thereof in the official newspaper of the City.
[SL]
ATTEST:
Sh d Wicks, CMC, City Clerk
ficatioXg,f Publication Summary:
tyA
Introduced: August 11, 2014
Adopted:_,,—Vrugust 18, 2014
Aaron K. Householter, Mayor
NOTIFICATION OF ACCEPTANCE OF FRANCHISE
To: Shandi Wicks, CMC, City Clerk
City of Salina
P.O. Box 736
Salina, KS 67402-0736
IdeaTek Telcom, LLC f/k/a Wildflower Telecommunications, LLC ("IdeaTek"), a wholly-
owned subsidiary of IdeaTek Systems, Inc., a Kansas corporation, hereby acknowledges its
acceptance of the provisions, terms, and conditions of Ordinance Number 14-10742 ("Ordinance"),
which was passed and approved by the Governing Body on August 18, 2014. IdeaTek acknowledges
and agrees that, upon publication of a summary of the Ordinance in the official newspaper, the
Ordinance shall constitute a valid contract franchise between the City of Salina, Kansas and IdeaTek,
subject to the provisions of the laws of the State of Kansas.
Dated: August 20 , 2014
IDEATEK TELCOM, LLC f/k/a WILDFLOWER
TELECOM ICATIONS, LLC
By:
Name: JZ
Davie P. Friesen
Title: President
STATE OF KANSAS, COUNTY OF 9,ex, O , SS:
This instrument was acknowledged efore me on August Z0, 2014, by
�am -i* e s e-- , as V cc -6; xc,-� of IdeaTek Telcom,
LLC f/k/a Wildflower Telecommunications, LLC.
LNOTARY PUBLIC - State;ofansas Notary Public
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