05-10-2023 Nex-Tech ROW AgreementRIGHT-OF-WAY USE AGREEMENT
This Right-of-Way Use Agreement ("Agreement") is made this _ff}__/Aoay of May, 2023
("Effective Date"), by and between the CITY OF SALINA, KANSAS , a Kansas municipal
corporation (the "City"), and NEX-TECH, LLC , a Kansas limited liability company
("PROVIDER").
RECITALS
A. Provider is an entity that provides telecommunications services within the State of
Kansas.
B. Pursuant to Ordinance Number 16-10825 , which was passed and approved by the
Governing Body on March 14 , 2016 , Provider 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 , Provider has installed and constructed, and
is currently operating, certain telecommunications facilities , including a fiber network, in the
City's public right-of-way, for the purpose of providing "local exchange services."
C. Provider has now requested permission to install and operate additional fiber optic
cabling and related facilities for data transmission in the City's public right-of-way for the purpose
of providing IP-enabled service and VoIP (as defined below).
D. Provider 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.
E. Provider does not presently intend to use the proposed new facilities or public right-
of-way for the provision of any services for which any additional franchise or other authorization
is required by the City, including but not limited to "cable services ," "open video system services,"
"video services," or "competitive infrastructure provider services."
F. In addition, Provider 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.
G. The City has found it to be in the public interest to grant permission to Provider to
construct, maintain, and operate the fiber optic cabling and related facilities in the public 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:
"IP-enabled service" means any service, capability , functionality , or application using an
internet protocol (IP) that enables an end user to send or receive a voice , data or video
communication in an IP format.
"Public right-of-way" means , for purposes of this agreement: (a) 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 ; and (b) public
utility easements.
"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.
"VoIP" is any service that : (A) uses an internet protocol (IP) to enable real-time , two-way
voice communication that originates from , or terminates at , the user 's location in an IP; (B)
utilizes a broadband connection from the user's location; and (C) permits a user to receive
a call that originates on the public switched telephone network (PSTN) and to terminate a
call to the PSTN.
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, Provider is hereby granted the
non-exclusive right to construct, maintain, and operate fiber optic cabling and related facilities and
appurtenances (the "Facilities") within the City's public right-of-way, for the exclusive purpose of
providing IP-enabled service and VoIP.
3. Franchise or Other Agreements Required. Provider acknowledges and agrees
that this Agreement is not a franchise agreement under K.S.A. 12-2001 et seq., and Provider must
obtain a franchise at the City's discretion and in accordance with applicable law, or otherwise
comply with the Existing Franchise (with respect to provision of"local exchange services"), before
Provider may use the public right-of-way for the provision of any telecommunications services for
which a franchise or other authorization 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)), "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 receipts" or other fee under the terms of any franchise between the City and another
telecommunications provider, but subject to Provider's right to challenge in good faith any such
franchise requirement. Notwithstanding the foregoing , the parties acknowledge and agree that
Provider is currently authorized to provide "local exchange services" pursuant to the Existing
Franchise, subject to Provider's compliance with the terms and conditions of the Existing
Franchise , including payment of the applicable franchise or "gross receipts" fee. In addition,
Provider acknowledges and agrees that it will not use the Facilities or public right-of-way in the
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capacity of a "wireless services provider" or a "wireless infrastructure provider," as defined in
K.S .A. 66-2019 , and amendments thereto , and Provider 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 Provider 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 Provider 's right to challenge in good faith
any such requirement. In addition, Provider acknowledges and agrees that it will not use the
Facilities or public right-of-way in the capacity of a "video services provider" as defined in K .S.A.
12-2022, and amendments thereto , and Provider must provide the City with notice, and execute an
agreement with the City, pursuant to K.S.A. 12-2024, and amendments thereto , before Provider
may provide "video service" within the City's jurisdiction, but subject to Provider'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 Provider is required by law or this Section 3 to enter into a
contract franchise ordinance or a different or additional agreement with the City, Provider 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 or authorization. If Provider uses the public right-of-way for the provision of any
services in violation of this Section 3 , Provider 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 rates
no higher than levied against other applicable services providers, but for Provider'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 of ten (10) years,
beginning on the Effective Date. 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 .
5. Compliance with Law and Other City Regulations.
A. The authority of Provider 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. Provider 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, Provider is required to obtain and is
responsible for complying with 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). Provider 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,
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codified at Salina Code Sec . 35-291 , et se q. and amendments thereto. For purposes of this
Agreement, Provider acknowledges and agrees that the foregoing compliance obligations shall
extend and apply to all installations within a public utility easement. Further, the forgoing
compliance obligations shall be subject to Provider's right to challenge in good faith such laws ,
statutes , and city ordinances , resolutions , and regulations. Nothing in this Agreement is intended
or shall be construed to abrogate or waive any requirements or conditions imposed by any other
applicable law or regulation, including the requirements of Salina Code Sec. 35-291 , et se q., and
amendments thereto.
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, Provider 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 Provider 's Facilities
under hard surfaces shall be installed via the boring method, unless otherwise agreed by the City
upon Provider '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. Provider 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 , Provider and it s
contractor shall , at the discretion of the City , 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 , Provider 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 .
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 , Provider shall , at its own cost and expense, prepare
and deliver to the City for approval , plans and specifications of the proposed installation, and
obtain any and all permits required by applicable law, including but not limited to a right-of-way
permit pursuant to Salina Code Sec. 35-291 et seq. and amendments thereto.
D . Provider 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
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or comers . 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 Provider the
authority to construct, maintain or operate an y facility or related appurtenance on property owned
by the City outside of the public right-of-way.
F. Provider shall participate in the Kansas 811 utility location program with
respect to all of its Facilities in the public right-of-way.
G. Provider is responsible for ensuring that all contractors and subcontractors
comply with the requirements of this Agreement when performing work on behalf of Provider,
and Provider 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 Provider due to a
reasonable public interest necessitated b y 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. Provider 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 Provider 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 Provider 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. Provider shall repair all damage to the public
right-of-way caused by the activities of Provider, or of any agent, affiliate , employee , or
subcontractor of Provider, 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 Provider fails to make
the repairs required by the City, the City may make those repairs and charge Provider 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 Provider for violation of this subsection, and may recover its
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damages , including reasonable attorney fees , if Provider is found liable by a court of competent
jurisdiction.
9. Fees. Pursuant to K .S.A. 17-1902(n), and amendments thereto, the City may assess
any of the following fees against Provider 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 Provider, its assigns , contractors and
subcontractors with the exception of construction and repair activity required pursuant to
subsection (1) of K. S.A. 1 7-1902 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 Provider, 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 Provider, its assigns , contractors , and/or
subcontractors in the right-of-way.
10. Indemnification and Hold Harmless.
A. It shall be the responsibility of Provider to take adequate measures to protect
and defend its Facilities in the public right-of-way from harm or damage. If Provider 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 Provider's Facilities.
B. Provider 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
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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 Provider, any
agent, officer, director, representative, employee, affiliate or subcontractor of Provider, 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
Provider 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 Provider 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, Provider 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 Provider 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. Provider 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 Provider's
operations under this Agreement.
B. Provider 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. Provider shall timely notify the City if the insurance is cancelled or
materially changed with respect to areas and entities covered. Provider 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. Provider 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 and
maintenance 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-
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of-way and the faithful performance of the provisions , terms , and conditions of Salina Code Sec.
35-291 et s eq. and amendments thereto. The required performance and maintenance 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. Provider or the City shall promptly advise the other in
writing of any known claim or demand against Provider or the City related to or arising out of
Provider '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 , Provider 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 Provider 's failure to
timely relocate or adjust its Facilities shall be borne by Provider.
14. Termination. In the event of Provider '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 Provider, setting forth in detail the nature of the breach, and
Provider 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 Provider.
15. Removal Due to Termination or Abandonment. Following the termination of
this Agreement for any reason , or in the event Provider ceases to operate and abandons any
Facilities, Provider 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 Provider 's entry thereon.
16. Transfer and Assignment. Except as otherwise authorized under applicable law,
this Agreement shall be assignable only upon the prior written consent of the City. 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
Provider '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 Provider waive any rights , but instead expressly reserve any and
all rights , remedies , and arguments the City or Provider 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 Provider entering into this Agreement.
18. Notices. Provider 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
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at all times to act on behalf of Provider in the event of an emergency. Emergency notice by
Provider 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 b y 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 holiday s excepted.
City:
City Clerk
City of Salina, Kansas
P.O. Box 736
Salina, KS 67402-0736
Provider:
Nex-Tech, LLC
Attn: --------
P.O. Box 188
Lenora, KS 67645
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 .
21. Force Majeure. Each and every provision hereof shall be subject to acts of God ,
fires, strikes , riots , floods, war and other disasters beyond Provider'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 .
By:
Narne :--/---~~~=...!.-=--3~--=---~!L!'...!~~:-::---,~..--:-
Title:
9
ACKNOWLEDGEMENTS
STATE OF KANSAS, COUNTY OF SALINE, SS:
This instrument was acknowledged before me on ~ /O , 2023 by Michael D.
Schrage as City Manager and by Jo Vonna A. Rutherford as Ci)llerk of Salina, Kansas.
A. NIKKI GODING
lfllll1 Notary Publ ic -Sta of ansas
My App!. Expires j
STATE OF /{8-NsAs , COUNTY OF 6 l}LJdE-, SS:
This instrument was acknowledged before me on ~~ g
rfl,·thael .::;-: f>o!/oc.L as th,-., { Oj>.irnt'trf O _' J
a Kansas limited liability company.
JOVONNA A. RUTHERFORD
My Appointment Expires
April26,2024
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by