AN ORDINANCE OF THE CITY OF WELLSVILLE, KANSAS GRANTING JMZ CORPORATION, DOING BUSINESS AS KWIKOM COMMUNICATIONS, A KANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, A TELECOMMUNICATIONS FRANCHISE AND PRESCRIBING THE TERMS OF SAID GRANT AND RELATING THERETO.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF WELLSVILLE, KANSAS:
RECITALS
A. JMZ owns, maintains, operates
and/or controls, in accordance with any applicable regulations promulgated by
the Federal Communications Commission and the Kansas Corporation Commission,
telecommunications networks serving JMZ’s customers through advanced fiber
facilities and other wireless carrier customers through fiber-fed facilities.
B. JMZ seeks to enter the City’s
public right-of-way, as defined in Section 12-201 of Article 2 of Chapter XII
of the Wellsville City Code, (“PROW”) to install, maintain and operate a fiber
optic network (the “Network”), so that JMZ and/or its customers (the “Customers”)
may provide data, telecommunications and other services to the enterprises,
residents and visitors of the City and others (the “Services”).
C. Some features of 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 and
identified, and subject to the City’s review and approval, through the City
permit process (“Facility” or “Facilities”).
D. Certain systems of JMZ which
are specific parts or types of the Facilities may, subject to appropriate
authorizations from owners and City’s review and approval, be located on
streetlights, stand-alone poles, thirty party utility poles, and other
structures located on or within the PROW as permitted under this Agreement.
E. JMZ desires to obtain from
City as permitted by law, and City is willing to grant JMZ as required by law,
the right to access the PROW to locate, place, attach, install, bury
underground, operate, use, control, repair, replace, upgrade, enhance and
maintain the Facilities in a manner consistent with this Agreement and Article
2 of Chapter XII of the Wellsville City Code.
In consideration of the Recitals set forth above, the terms and conditions of this Agreement and other valuable consideration, the adequacy of which is hereby acknowledged, the parties agree as follows:
SECTION 1 – INSTALLATION OF THE NETWORK
1.1 Permitted Installation. JMZ
may at JMZ’s sole cost and expense and during the term of the Agreement,
locate, construct, place, attach, install, bury underground, operate, use,
control, repair, replace, upgrade, enhance and maintain the Facilities subject
to the terms and conditions of Article 2 of Chapter XII of the Wellsville City
Code and this Agreement. JMZ shall
undertake and perform work authorized by this Agreement in a skillful and
workmanlike manner.
1.1.1 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 for all work in the PROW and/or, if separately authorized by
the City, on City property. Such
approval review shall be made no later than forty-five (45) days from
application date, and under exceptional circumstances the time may be extended
an additional forty-five (45) days upon agreement of the Parties. The Parties understand and agree that
Facilities outside of the PROW may require additional easements for underground
fiber to connect to Network within PROW.
Such additional easements shall be located so as not to interfere with
the City’s use of its property. For each
installation of Facilities, JMZ shall provide to the City plans,
specifications, a construction work breakdown, and anticipated construction time
frames for the installation of Facilities no later than forty-five (45) days
prior to the planned start of the installation. JMZ shall, at the written
request of the City, attend a planning session regarding any installation
proposed by JMZ. 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 the specific location,
approval of which shall not be unreasonably withheld, conditioned or
delayed. Approval of plans and
specifications and the issuance of any permits by the City shall not release
JMZ from the responsibility for, or the correction of, any errors or omissions
that may be contained in the plans, specifications or permits. JMZ shall be responsible for notifying the
City and all other relevant parties immediately upon discovery of such errors
or omissions and obtaining any amendments for corrected City-approved permits
as may be necessary. JMZ shall be
responsible for all costs associated with the permitting process, including,
but not limited to, repairs and replacement of the PROW. Such permits and approval requirements
detailed in this section shall not be unreasonably withheld, conditioned or
delayed by the City and any conditions or requirements shall be in accordance
with federal, state, and local laws.
1.1.2 Temporary Construction. The installation of the Facilities shall be
performed in accordance with Article 2 of Chapter XII of the Wellsville City
Code and traffic control plans for temporary construction work that are
approved by the City, which approval shall not be unreasonably withheld,
conditioned or delayed.
1.1.3 Construction Schedule.
If requested by the City, at least ten (10) days prior to the
installation of the Facilities, JMZ 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 JMZ agents and contractors authorized to access the PROW
and, if applicable, City owned property on JMZ’s behalf.
1.1.4 Coordination of Work.
JMZ shall be responsible for coordination of work to avoid any
interference with existing utilities, substructures, facilities and/or
operations within the PROW. JMZ shall be
the City’s point of contact and all communications shall be through JMZ. JMZ shall be solely responsible for
communication with Kansas One-Call.
1.1.5 Inspection by City.
The City shall have commercially reasonable access to inspect any work
conducted by JMZ during the installation, maintenance and/or repairs of the
Facilities.
1.1.6 Other Utility Providers.
When necessary, JMZ shall coordinate with other utility providers
for other needed utility services. JMZ
and the City will reasonably cooperate with the other utilities providers
regarding the location of any meter, pole, and other apparatuses required for
each Site.
1.1.7 Existing Utility Poles.
JMZ may attach its Facilities to an existing third-party utility pole
pursuant to an agreement with the third-party utility pole owner, provided,
however that any necessary replacement of the pole in order to accommodate the
attachment shall be subject to the proper exercise of the City’s police powers,
and in no instance shall JMZ erect a new pole within an existing aerial pole
line absent the City’s prior authorization.
1.1.8 Compliance with Law.
This Agreement is subject to the terms and conditions of all applicable
federal, state and local laws, regulations and ordinances (“Laws”).
1.2.1 Zoning Regulations. Zoning regulations shall not apply to installations within the PROW.
1.2.3 Permits. JMZ shall obtain any necessary encroachment permits from the City for the installation of the Network and for any other work within the PROW or other real property of the City, as required by Article 2 of Chapter XII of the Wellsville City Code and as authorized by State Law, including K.S.A. 17-1902(n), as amended.
1.3 Compliance with Permits. All work within the PROW or other real property of the City shall be performed in strict compliance with all applicable permits and all applicable regulatory requirements.
1.4 Placement of JMZ Facilities. JMZ shall coordinate the placement of its Facilities in the PROW in a manner that minimizes adverse impact on public improvements, as reasonably determined by the City Engineer and/or City Building Inspector.
1.5 New Streetlight Poles and Existing Streetlight Poles. JMZ may build new streetlight poles or other such facilities in the PROW required for the installation of the Facilities, subject to review and approval by the City, and in conformance with all encroachment and building permits, applicable City, state and federal specifications, and requirements (“New Poles”). In areas where there are existing poles, JMZ will work with the owner of that existing pole to collocate the Facility, but only when the pole owner is willing to allow such attachment and where such attachment is feasible from a safety, technical, and engineering (structural and radio frequency coverage) perspective.
1.5.1 City Use of New Poles. 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 JMZ’s use of its Network or Facilities. JMZ shall reasonably cooperate with the City when using the New Poles.
1.5.2 City-Owned Lights. Except for the installation of the lights and ancillary equipment on or in the New Poles and/or as set forth in section 1.5.3 below, JMZ 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.
1.5.3 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 such imminent threat or harm to persons or property. JMZ 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 JMZ; 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 JMZ seeks reimbursement from a third party either directly or through applicable insurance, the City shall assign JMZ any rights the City may have against such thirty party for such claims.
1.7 Access to the Facilities. The City shall allow JMZ reasonable access to each of the Facilities in the PROW or City owned property for purposes of installation, repair, maintenance or removal of Facilities. If any such maintenance activities have the potential to result in an interruption of any City services, JMZ shall provide the City with a minimum of three (3) days prior notice of such maintenance activities. Such maintenance activities shall, to the extent feasible, be done with minimal impairment, interruption, or interference to City services. JMZ shall allow a representative of the City to observe any repair, maintenance or removal work that affects City services.
SECTION 2 – TERM AND TERMINATION
2.1 Term. This Agreement shall be effective for an initial term of five (5) years from the effective date of this ordinance. This Agreement will automatically renew for additional five (5) year terms thereafter unless either party notifies the other party of its intent to non-renew at least ninety (90) days prior to termination of the then current term. The additional term(s) shall be deemed a continuation of this ordinance and not as a new ordinance or amendment. Under no circumstances shall this ordinance exceed twenty (20) years from the effective date of the franchise ordinance. At the conclusion of the twenty (20) year period the parties agree to negotiate a new franchise in good faith in the event JMZ is still providing services hereunder.
2.2 90 Day Remedy Period. If the Agreement is breached by JMZ, then the provisions of Section 8 (Default) shall govern the parties hereto.
2.3 Termination of Use. Notwithstanding Section 2.1 above, JMZ may terminate its use of any or all of the Network by providing the City with ninety (90) days prior written notice, and in such event, JMZ’s payment obligations to the City shall terminate simultaneously with the termination of use.
SECTION 3 – REMOVAL AND RELOCATION
3.1 Removal due to Public Project. Upon
receipt of a written demand from the City pursuant to this Section 3, JMZ, at
its sole cost and expense, shall remove and relocate any part of the Network
constructed, installed, used and/or maintained by JMZ under this Agreement,
whenever the City reasonably determines that removal and/or relocation 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 used 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 or
operations; or (c) to protect or preserve the public health and safety. The City shall cooperate with JMZ in
relocating any portion of the Network removed pursuant to this Section 3.1 in a
manner that allows JMZ to continue providing service to Customers, including,
but not limited to, expediting approval of any necessary permits required for
the relocation of that portion of the Network relocated under this Section 3.1. No permitting or other fees may be charged by
the City for a removal occurring under this Section.
3.2 Removal Due to Termination. No
later than one-hundred and eighty (180) days after termination of this
Agreement, JMZ shall, at its sole cost and expense, remove the Network or the
terminated portion thereof. If such removal disturbs adjacent property, the P
ROW, City facilities, or City real property, then JMZ shall restore each such
property or facilities to their original condition, reasonable wear and tear
excepted, and further excepting landscaping and related irrigation equipment,
or other aesthetic improvements made by JMZ to the facilities or adjacent
property, or as otherwise required by the City.
For New Poles, JMZ shall install a new streetlight or facility as
directed by City’s Public Works Director, or his or her designee. Alternatively, JMZ shall abandon the Network,
or any part thereof, in place and convey it to the City if either the City or
JMZ elects to do so.
3.3 Abandonment. In the event JMZ ceases to operate and abandons the Network, or any part thereof, for a period of ninety (90) days or more, then JMZ shall, at its sole cost and expense and within the time period specified in Section 3.2, vacate and remove the Network or the abandoned part thereof. If such removal disturbs adjacent property, the PROW, City facilities, or City real property, then JMZ shall restore each such property or facilities to their original condition, reasonable wear and tear excepted, and further excepting landscaping and related irrigation equipment, or other aesthetic improvements made by JMZ to the facilities or adjacent property, or as otherwise required by the City. For New Poles, JMZ shall install a new streetlight or facility as directed by City’s Public Works Director, or his or her designee. Alternatively, JMZ shall abandon the Network, or any part thereof, in place and convey it to the City if either the City or JMZ elects to do so.
3.4 No Relocation Compensation. The City and JMZ are not entitled to compensation for any relocation of its Network that may be required under Section 3.1. JMZ 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 4 – MAINTENANCE AND REPAIR
4.1 Electricity Use. JMZ shall pay for the electricity and other utility services it consumes in its operations at the rate charged by the servicing utility company.
4.2 Maintenance and Repair. JMZ shall, at JMZ’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, then JMZ shall, at JMZ’s sole cost and expense, replace the irreparable part of the Network. JMZ shall not cause rubbish, garbage or debris on or around its Network or the Facilities and shall not permit rubbish, garbage or debris to accumulate on or around any enclosed areas around the Facilities. If the City gives JMZ written notice of a failure by JMZ to maintain the Facilities, JMZ shall use its best efforts to remedy such failure within forty-eight (48) hours after receipt of such written notice.
4.3 Appearance. JMZ shall cooperate with the City on all issues of aesthetics and appearance. JMZ shall follow all legally binding City policies, state and local ordinances with respect to aesthetics, including but not limited to, historic site and/or locations of significant importance. All locations of systems must be aesthetically approved by the City in a manner consistent with other approvals
4.4 Repair of PROW. JMZ 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 JMZ’s construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of the Network in the PROW. JMZ shall promptly repair such damage and return the PROW and any affected adjacent property to a safe and satisfactory condition to the City in accordance with the City’s applicable street restoration standards. JMZ’s obligations under this Section 4.4 shall survive for one (1) year past the completion of such reparation and restoration work and return of the affected part of the PROW by JMZ to the City.
SECTION 5 – TAXES
5.1 Taxes. JMZ is responsible for payment of any taxes, fees and assessments levied on its ownership, use and maintenance of the Network. Pursuant to K.S.A. 79-5a01 et. seq of the Kansas Revenue and Taxation Code, the City hereby advises, and JMZ recognizes and understands, that JMZ’s use of the PROW, the New Poles, and/or other non-PROW City property and facilities may create a possessory interest subject to real property taxation and that JMZ may be subject to, and responsible for, the payment of real property taxes levied on such interest. JMZ will cooperate with the Johnson County Assessor in providing any information necessary for the Assessor to make a property tax determination. JMZ reserves the right to challenge any such assessment, and the City agrees to cooperate with JMZ in connection with any such challenge.
SECTION 6- INDEMINFICATION
6.1 Indemnity. JMZ shall indemnify, defend, and hold harmless the City, its council members, officers and employees, agents, 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 from activities undertaken by JMZ pursuant to this Agreement, except to the extent arising from or caused by the negligence or willful misconduct of the City, its council members, officers, employees, agents or contractors. The City shall promptly notify JMZ of any claim, action or proceeding covered by this Section 6.1.
6.2 Waiver of Claims. JMZ 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 resulting from the gross negligence or willful misconduct of the City, its council members, officers, employees, agents or contractors.
6.3 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 negligence or willful misconduct of City, its employees, agents, or contractors. The City, its council members, officers, employees, agents 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 negligence or willful misconduct of City, its council members, officers, employees, agents or contractors. The City will in no event be liable for indirect or other unforeseeable damages (including, but not limited to, punitive, emotional, or exemplary damages).
6.4 Limitation of JMZ’s
Liability. In no event shall JMZ be
liable for indirect or other unforeseeable damages (including, but not limited
to, punitive, emotional, or exemplary damages) in connection with or arising
from this Agreement, or its use of the Network, New Poles, and PROW or other
City real property.
SECTION 7 – INSURANCE
7.1 Minimum Insurance Requirements. JMZ shall obtain and maintain at its sole cost and expense for the duration of this Agreement insurance pursuant to the terms and conditions described in this Section.
a. Comprehensive General Liability Insurance, with minimum limits of $2,000,000 combined per occurrence for bodily injury, personal injury, death, loss and property damage resulting from JMZ’s wrongful or negligent acts.
b. 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 JMZ in performing the work covered by this Agreement.
c. Workers’ compensation limits as required by Kansas law, and Employer’s Liability limits of $1,000,000 per accident.
7.2 Other Insurance Provisions. The
insurance policies shall contain, or be endorsed to contain, the following
provisions:
a. General Liability and Automobile Liability Coverage.
The City, and its elected and appointed council members, board members, commissioners, officers and officials (the “Insureds”) shall be named as additional insureds on all required insurance policies, except for Workers’ Compensation and Employers’ Liability policies.
JMZ’s insurance coverage shall be primary insurance with respect to the matters covered by this Agreement. Any insurance or self-insurance maintained by the Insureds shall be in excess of JMZ’s insurance and shall not contribute with it.
Any failure of JMZ to comply with reporting provisions of the policies shall not affect coverage provided to the Insureds.
JMZ’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.
b. Workers’ 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 JMZ in the PROW.
c. 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, JMZ shall within two
(2) business days of receipt 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.
7.3 Verification of Coverage. JMZ shall furnish the City with certificates
of insurance required by this Section 7.
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.
7.4 Secondary Parties. In the event JMZ hires any
subcontractors, independent contractors or agents (“Secondary Parties”) to
locate, place, attach, install, operate, use, control, replace, repair or
maintain the Network, JMZ shall require the Secondary Parties to obtain and
maintain insurance commensurate to the work such Secondary Parties perform.
SECTION 8 – DEFAULT
8.1.1 Defined. A “Default” shall be deemed to have occurred under this Agreement if a party fails to cure a breach of this Agreement within thirty (30) days after written notice specifying such breach, provided that if the breach is of 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.
Remedies.
Upon the failure of a party to
timely cure any breach after notice thereof from the other party and expiration
of the above cure periods, then the non-defaulting party may, subject to the
terms of Section 6.3 (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.
8.2 City Termination Right. In addition to the remedies set forth in Section 8.1.2, the City shall have the right to terminate this Agreement if (i) the City is mandated by law, a final court order or decision, or 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 (ii) if any licenses that JMZ may be required to hold to perform its obligations under this Agreement are terminated, revoked, expired, or otherwise abandoned. Such termination rights shall be subject to any legally authorized right of JMZ to just compensation, if any, for any taking of a protected property right.
8.3 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 matters subsequently occurring.
SECTION 9 – INTERFERENCE
9.1 Non-Interference with Non-Public Safety Communications
Systems. JMZ 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 JMZ may make to the Network.
9.2 Non-Interference with Public Safety Communications Systems. JMZ’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 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.
9.3 Correction of Interference. If interference with the Facilities described in Sections 9.1 and 9.2 should occur, JMZ shall, upon receipt of written notice thereof from the City, immediately commence commercially reasonable, diligent efforts to correct or eliminate such interference. If such interference cannot be corrected by JMZ to the reasonable satisfaction of City within the cure period set forth in the City’s notice, which period shall not be less than ninety (90) days, such interference shall be deemed a material breach under this Agreement and City may terminate this Agreement. Interference caused by actions of JMZ’s Customers remain the responsibility of JMZ. If the interference is an emergency or a danger to public health and safety, the City shall be entitled to require correction in a time period necessary to avoid the emergency or public health and safety issue.
SECTION 10 – MISCELLANEOUS PROVISIONS
10.1 Nonexclusive Use. JMZ acknowledges that this Agreement does not provide JMZ with exclusive use of the PROW or any municipal facility and that City retains the right to permit other providers of communications services to install equipment or devices in the PROW and on municipal facilities. The parties specifically agree that all such franchises issued to telecommunications providers shall be competitively neutral and not unreasonable or discriminatory in nature.
10.2 Most Favored Nation. All of the benefits and terms granted by the City herein are at least as favorable as the benefits and terms granted by the City to any future franchisee of the PROW engaged in the same or similar business described in this Agreement. Should the City enter into any subsequent agreement of any kind no matter what nomenclature is attached with any other franchisee during the term of this Agreement, which other agreement provides for benefits or terms more favorable than those contained herein, then this Agreement shall be deemed to be modified effective as of the date of such more favorable agreement to provide JMZ with those more favorable benefits and terms. The City shall notify JMZ promptly of the existence of such more favorable benefits and terms and JMZ shall have the right to receive the more favorable benefits and terms immediately. If requested in writing by JMZ, the City shall amend this Agreement to contain the more favorable benefits, terms and conditions.
10.3 Notices. All notices pursuant to this Agreement shall be in writing and sent by E-mail and by mailing a copy first class postage prepaid or by personal delivery to the following address or such other address of which a party may give by written notice:
City: The City of Wellsville, Kansas
ATTN: City Clerk
411 Main St
PO Box 455
Wellsville, KS 66092
Phone: 785-883-2296
E-mail: cityclerk@cityofwellsvilleks.com
JMZ: JMZ Corporation,
dba KwiKom Communications
ATTEN: Zachery Peres, Vice
President
800 W Miller Rd, Iola, Kansas 66749
Phone: 1-620-365-7782
x100
E-mail: zperes@kwikom.com
with a copy to Kurt F. Kluin
Attorney at Law
P.O. Box G, Chanute,
Kansas 66720
Phone: 1-620-431-1601
E-mail: kurtk@kluinlaw.com
Notice sent as provided herein shall be deemed given on the date of the
E-mail. Actual notice shall be deemed
adequate notice on the date actual notice occurred, regardless of the method of
service.
10.4 Sublease/Assignment. If JMZ
assigns, sublets, enters into a franchise license or concession agreement, or
changes ownership of the Network, then JMZ will provide notice of a transfer
within a reasonable time.
10.5 Binding Effect. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, legal representatives, successor, assigns and
transferees.
10.6 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 of 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 provisions, 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.
10.7 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.
10.8 Governing Law. This
Agreement shall be interpreted and enforced according to, and the parties’
rights and obligations governed by the law of the State of Kansas or applicable
federal law. Any proceeding or action to
enforce this Agreement, or otherwise directly related to this Agreement, shall
occur in the District Court of Franklin County, Kansas.
10.9 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.
10.10 Captions and Paragraph Headings.
Captions and paragraph headings used herein are for convenience only
and shall not be used in construing this Agreement.
10.11 Drafting. This
Agreement is the project of joint draftsmanship and nothing herein shall be
construed against a drafting party.
10.12 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.
10.13 Authority to Execute This Agreement.
Each person 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 authority
to bind such party to the performance of its obligations under this Agreement
without further approval or consent of any other person or entity.
10.14 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 Facilities.
10.15 No Abrogation of Legal Responsibilities. The City’s execution of this Agreement
shall not abrogate, in any way, JMZ’s responsibility to comply with all
permitting requirements or to comply with all laws with respect to its
performance of the activities permitted under this Agreement.
10.16 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.
10.17 Effective Date of Ordinance. This Ordinance shall be effective upon its final passage and publication as required by law.
(07-11-2018)