MO Network Alliance AgreementTELECOMMUNICATIONS PROVIDER
RIGHT-OF-WAY USE AGREEMENT
This Telecommunications Provider Right-of-Way Use Agreement ("Agreement") is made
this 3rd day of May, 2021, by and between the CITY OF SALINA, KANSAS, a Kansas municipal
corporation (the "City "), and MISSOURI NETWORK ALLIANCE, LLC, a Missouri limited
liability company, d/b/a Bluebird Network ("Bluebird").
RECITALS
A. Bluebird 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. Bluebird 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. Bluebird 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. In addition, Bluebird does not presently intend to use the proposed facilities or
public right-of-way in the capacity of a "wireless services provider" or a "wireless infrastructure
provider," as defined in K.S.A. 66-2019, and amendments thereto.
E. The City has found it to be in the public interest to grant permission to Bluebird 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, Bluebird is hereby granted the non-
exclusive right to install , maintain , and use a private underground data transmission fiber optic
system and related appurtenances (the "Fac iliti es") within the City 's public right-of-way , for the
purpose of providing telecommunications services.
3. Franchise or Other Agreements Required. Bluebird acknowledges and agrees
that this Agreement is not a franchise agreement under K.S.A. 12-2001 et seq ., and Bluebird
must obtain a franchise , at the City's discretion and in accordance with applicable law, before
Bluebird 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 4 7 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-
200 l ( c )(7)), or "competitive infrastructure provider services" (as defined in K .S.A . l 7-
l 902(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 Bluebird's right to challenge in good faith any such
franchise requirement. In addition , Bluebird acknowledges and agrees that it will not use the
Facilities or public right-of-way in the capacity of a "wireless services provider" or a "wireless
infrastructure provider," as defined in K.S.A. 66-20 I 9 , and amendments thereto , and Bluebird must
obtain a master license agreement, or such other agreement(s) or authorizations as may be
required by the City , at the City's discretion and in accordance with applicable law, before
Bluebird may use the public right-of-way in the capacity of a "wireless services provider" or a
"wireless infrastructure provider," as defined in K.S .A. 66-2019 , and amendments thereto , but
subject to Bluebird's right to challenge in good faith any such requirement. Prior to using the
public right-of-way for the provision of any services for which Bluebird is required by law or
this Section 3 to enter into a contract franchise ordinance or a different or add iti onal agreement
with the City, Bluebird shall notify the City , in writing, of such additional proposed services, and
the parties agree to act in good faith in promptly negotiating a contract franchise ordinance or
such additional or different agreement. If Bluebird uses the public right-of-way for the provision
of any services in violation of this Section 3 , Bluebird agrees to immediately pay to the City, on
demand , an amount equal to the total fees or compensation that should have been paid to the
City , at franchise rates no higher than levied against other applicable services providers, but for
Bluebird's violation of this Section, plus a sum equivalent to the statutory rate of interest on all
unpaid amounts.
4. Term. The initial term of this Agreement shall be for a period beginning on the
date of this Agreement, and ending April 30 , 2031. 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 six (6) months 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.
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5. Compliance with Law and Other City Regulations.
A. The authority of Bluebird 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. Bluebird 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, Bluebird 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). Bluebird shall also comply with all applicable laws , statutes and city
ordinances , resolutions , and regulations , whether now existing or hereafter adopted ,
including but not limited to the City 's ordinance for managing the use and occupancy of the
public right-of-way, codified at Salina Code Sec . 35-291 et seq. and amendments thereto . The
forgoing compliance obligations shall be subject to Bluebird '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, Bluebird 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 Bluebird 's
Facilities under hard surfaces shall be installed via the boring method, unless otherwise agreed
by the City upon Bluebird '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. Bluebird 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 ,
Bluebird and its contractor shall stake the route and 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 ,
Bluebird shall install the Facilities a minimum of five (5) horizontal feet and two (2) vertical feet
away from water, sanitary and storm sewer lines , where possible along the route.
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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, Bluebird 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. Bluebird 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 Bluebird 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. Bluebird shall participate in the Kansas One Call utility location program
with respect to all of its Facilities in the public right-of-way.
G. Bluebird is responsible for ensuring that all contractors and subcontractors
comply with the requirements of this Agreement when performing work on behalf of Bluebird ,
and Bluebird shall be jointly and severally responsible for any acts or omissions of its contractors
or their subcontractors.
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
Bluebird 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. Bluebird 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 Bluebird 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
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D. The specific portion of the public right-of-way for which Bluebird
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. Bluebird shall repair all damage to the
public right-of-way caused by the activities of Bluebird , or of any agent, affiliate , employee, or
subcontractor of Bluebird, 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 Bluebird fails to make
the repairs required by the City , the City may make those repairs and charge Bluebird 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 Bluebird for violation of this subsection, and may
recover its damages, including reasonable attorney fees , if Bluebird is found liable by a court of
competent jurisdiction.
9. Fees. Pursuant to K.S.A . l 7-l 902(n), and amendments thereto, the City may
assess any of the following fees against Bluebird 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 Bluebird , its assigns , contractors and
subcontractors with the exception of construction and repair activity required pursuant to
subsection (I) 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 Bluebird, 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 Bluebird, its assigns , contractors , and/or
subcontractors in the right-of-way.
10. Indemnification and Hold Harmless.
A. It shall be the responsibility of Bluebird to take adequate measures to
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protect and defend its Facilities in the public right-of-way from harm or damage. If Bluebird 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 s eq., 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
Bluebird's Facilities.
B. Bluebird shall indemnify and hold the City and its officers and employees
harmless against any and all claims, lawsuits , judgments, costs, liens , losse s, 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 Bluebird ,
any agent, officer, director, representative , employee, affiliate or subcontractor of Bluebird , 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 Bluebird 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 Bluebird 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, Bluebird 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 Bluebird 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. Bluebird shall provide not less than the following
insurance:
1. Workers ' compensation as required by the laws of the State of Kansas,
with an employers ' liability limit equal to the amount required by law.
11. 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 Bluebird 's
operations under this Agreement.
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B. Bluebird 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. Bluebird shall timely notify the City if the insurance is
cancelled or materially changed with respect to areas and entities covered. Bluebird 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. Bluebird 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. Bluebird or the City shall promptly advise the other in
writing of any known claim or demand against Bluebird or the City related to or arising out of
Bluebird 's activities in a public right-of-way .
13. Removal or Relocation of Facilities for Public Improvement Projects. 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 , Bluebird 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
Bluebird 's failure to timely relocate or adjust its Facilities shall be borne by Bluebird.
14. Termination. In the event of Bluebird 's breach of this Agreement, the City shall
have the right to terminate this Agreement in accordance with the following procedure. The City
shall first serve a written notice upon Bluebird , setting forth in detail the nature of the breach ,
and Bluebird 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 Bluebird.
15. Removal Due to Termination or Abandonment. Following the termination of
this Agreement for any reason, or in the event Bluebird ceases to operate and abandons any
Facilities, Bluebird shall within one hundred twenty (120) days , remove such Facilities from the
public right-of-way and restore the public right-of-way in as good condition as it was at the time
of Bluebird's entry thereon.
16. Transfer and Assignment. This Agreement shall be assignable only upon the
prior written consent of the City or to a telecommunications provider which holds a current and
valid certificate of convenience and authority from the Kansas Corporation Commission, and any
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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.
17. Reservation of Rights. In entering into this Agreement, neither the City 's nor
Bluebird'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 Bluebird waive any rights , but instead expressly reserve any and
all rights , remedies, and arguments the City or Bluebird 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 Bluebird entering into this Agreement.
18. Notices. Bluebird 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 Bluebird in the event of an emergency. Emergency
notice by Bluebird 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:
City Clerk
City of Salina, Kansas
P.O. Box 736
Salina, KS 67402-0736
Bluebird:
Bluebird Network
Attn: Chief Executive Officer
2005 W. Broadway, Building A, Suite 215
Columbia, MO 65203
With a copy to:
Bluebird Network
Attn: Director, Business Development
800 NW Chipman Road , Suite 5750
Lee 's Summit, MO 64063
19. 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.
20. 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.
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21. Force Majeure. Each and every provision hereof shall be subject to acts of God,
fires , strikes, riots , floods , war and other disasters beyond Bluebird 's or the City's control.
22. 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.
ATTEST:
MISSOURI NETWORK ALLIANCE, LLC
d/b/a BLUEBIRD TWORK
By:
Name: Michael C. Morey
Title: President and C.E.O.
ACKNOWLEDGEMENTS
STATE OF KANSAS, COUNTY OF SALINE, SS:
This instrument was acknowledged before me on n'l 'lAf [ g , 202 l by Michael D.
Schrage as City Manager and by JoV~na A. Rutherford as City Cerk of Salina, Kansas.
A • CYNTHIA S. WOLFF
m.iliill Notary Public • State of Kansas
My Appl. Expire s / o -• d.O
STATE OF MISSOURI , COUNTY OF ~· W\.....l~ , SS:
This instrument was acknowledged before me on {Y\4.....c 1 , 2021 by Michael C.
Morey as President and C.E.O. of Missouri Network Alliance, LLC, a Missouri limited liability
company.
VIRGINIA L WOOD
NOTARY PUBLIC-NOTARY SEAL
STATE OF MISSOURI
MY COMMISSION EXPIRES NOVEMBER B 2024 ST. LOUIS COUNTY '
COMMISSION #12395867
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