AN ORDINANCE AUTHORIZING AN AGREEMENT WITH SPRINT COMMUNICATIONS COMPANY L.P., FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING A FIBER OPTIC TRANSMISSION SYSTEM IN, UNDER, OVER AND ACROSS THE STREETS AND PUBLIC WAYS IN THE CITY OF HIAWATHA; REGULATING THE CONSTRUCTION WORK IN THE CITY IN THIS REGARD, PRESCRIBING THE RELATIONSHIP AND RELATIVE RIGHTS BETWEEN SPRINT COMMUNICATIONS COMPANY L.P., AND OTHERS WITH RESPECT TO CONSTRUCTION IN THE CITY AND LOCATION OF FACILITIES; REQUIRING CERTAIN RECORDS AND REPORTS; PROVIDING FOR INSPECTIONS; PROVIDING THE RIGHTS AND RESPONSIBILITIES OF THE CITY COMMISSION; PROVIDING FOR ENFORCEMENT OF THE AGREEMENT; PROVIDING INDEMNITY OF THE CITY AND ITS EMPLOYEES; SETTING FORTH THE TERM OF THE AGREEMENT AND PRESCRIBING MISCELLANEOUS REQUIREMENTS FOR ADMINISTRATION OF THE AGREEMENT; PROVIDING FOR TERMINATION OF THE AGREEMENT, PROVIDING FOR A PENALTY; REQUIRING CONFORMITY WITH CONSTITUTION, STATUTES, CHARTER AND CITY CODE; LENGTH OF AGREEMENT TERMS; PROVIDING AN EFFECTIVE DATE; PROVIDING VENUE AND PROVIDING FOR A SEVERABILITY CLAUSE.
WHEREAS, Sprint Communications Company L.P. ("Licensee") desires the use of certain public rights of way within the City of Hiawatha ("City") for the purposes set forth below pursuant to the provisions of the laws of the State of Kansas; and
WHEREAS, it is the position of the City that Licensee must obtain a license in order to use the public rights of way; and
WHEREAS, the City and Sprint entered into a License for the period commencing March 13, 2018 and expiring March 12, 2021 ("Prior License").
WHEREAS, City and Sprint wish to renegotiate and renew the Prior License.
WHEREAS, the City Commission determined that it is appropriate to enter into the following agreement with Licensee;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION FOR THE CITY OF HIAWATHA, KANSAS:
SECTION 1. PURPOSE
(a) The City and Licensee enter into this nonexclusive license agreement (this "License" or this "Ordinance") for the period commencing on March 13, 2021 and continuing for a period of three (3) years until March 12, 2024 ("Primary Term").
(b) Under this License, Licensee may acquire, erect, construct, replace, reconstruct, maintain, use and operate in the City a fiber optic transmission system in, across, over or under the Right of Way (as defined below), including facilities in connection with Licensee's System for the purpose of providing any telecommunications services authorized by law, regulation or certification, subject to this License.
(c) This License does not authorize Licensee to operate or provide in the City an open video system ("OVS"), enhanced services related to OVS, advanced video gateways, other related non programming OVS functions or similar types of services, gateways, platforms or functions, video common carriage services, "cable services," or "cable television services," as those terms may be defined from time to time under City ordinance, Kansas law, the Communications Act of 1934, as amended, the Cable Communications Policy Act of 1984 (47 U.S.C.A. 6 521, et seq., as amended) or recognized by the Federal Communications Commission or applicable rulings of the courts or FCC, or services regulated directly or indirectly by the Kansas Public Utility Commission (the "PUC") under the Kansas Public Utility Regulatory Act without first securing a franchise or other required authorization from the City.
SECTION 1.2 DEFINITIONS
"City" means the City of Hiawatha, Kansas.
"Facility" or "Facilities" includes but is not limited to all necessary or desirable underground conduits, manholes, and other structures or appurtenances.
"Licensee" shall mean Sprint Communications Company L.P., a Delaware limited partnership. "Right of Way" or rights of way means all streets, highways, alleys and public ways of the City. "System" means Licensee's transmission system.
"Written Notice" means written or electronic correspondence related to the Agreement, including but not limited to demands, requests, inquiries, or notifications sent from one party to the Agreement to another party to the Agreement. Written notice requiring a party to the Agreement to respond or take action shall be sent by certified mail and state a reasonable time for compliance.
SECTION 2. LICENSE AREA
This License shall extend to all of the rights of way of the 6 streets and alleys that the railroad right of way crosses within the City where the Licensee's interstate transmission facilities are located.
SECTION 3. CONSTRUCTION WORK - REGULATION BY CITY, UNDERGROUND CONDUIT USE BY CITY, JOINT USE OF TRENCH SPACE
(a) The work done by Licensee in connection with the construction, reconstruction, maintenance or repair of said System shall be subject to and governed by all pertinent laws, rules, regulations of the City and the State of Kansas that are applicable to inuring the work done does not unduly inconvenience the public in the use of the surface of the Right of Way.
(b) All excavations and other construction in the Right of Way shall be carried on as to interfere as little as practicable with the use of the Right of Way and with the use of private property. Excavations and other construction shall be in accordance with any lawful and reasonable direction given by or under the authority of the governing body of the City under the policy and regulatory powers of the City necessary to provide for public safety or convenience.
SECTION 4. CONSTRUCTION AND MAINTENANCE, EXCAVATION, EMERGENCY REPAIRS
(a) The City shall have the power to require Licensee to remove and abate any pole, wire, cable or other Facility that is imminently dangerous to life or property. If Licensee, after written notice, fails or refuses to comply, the City shall have the power to remove the same at the expense of the Licensee, except as due to the negligence or willful misconduct of the City. Licensee shall promptly restore all Rights of Ways excavated by Licensee to substantially the same condition as before such excavation to the reasonable satisfaction of the City. Prior to construction, Licensee shall submit engineering plans to the City for review and approval when such plans are for projects for proposed excavation, which plans must be in accordance with the terms of this License.
(b) Licensee shall comply with the provisions in this section within 120 days after receipt of written notice from the City.
(c) Nothing in this section shall prevent Licensee from performing any emergency work or repair of Licensee's facilities, or taking any action required under the circumstances, provided that Licensee notifies the City as soon as practicable after beginning the work, repair, or action.
SECTION 5. WORK BY OTHERS, CONSTRUCTION BY ABUTTING OWNERS, ALTERATION TO CONFORM WITH PUBLIC IMPROVEMENTS
(a) The City reserves the right to lay, and permit to be laid, sewer, gas, water and other pipe lines or cables and conduits, as well as drainage pipes and channels and streets and to do and permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the governing body of the City, in, across, along, over or under any Right of Way occupied by Licensee, and to change any curb or sidewalk or the grade of any street and to maintain all City facilities provided that such work is for the municipal purposes of the City. In permitting such work to be done, the City shall not be liable to Licensee for any damage so caused, unless due to the negligence or willful misconduct of the City, nor shall the City be liable to Licensee for any damages arising out of the performance by the City not willfully or negligently occasioned; provided, however, nothing herein shall relieve any other person or corporation from liability for damage to the Facilities or the System of Licensee. Nothing herein shall relieve any person of liability, including without limitation the City's contractors or subcontractors from liability for damage to the Facilities or the System of Company.
(b) Whenever by reason of changes in the grade or widening of a street or in the location or manner of constructing a water pipe, gas pipe, drainage channel, sewer, or other City-owned underground or aboveground Facilities, it is deemed necessary by the City to move, alter, change, adapt, or conform the underground or aboveground facilities of Licensee, Licensee shall make the alterations or changes, on alternative Right of Way provided by the City, as soon as practicable upon Licensee's receipt of written notice from the City without claim for reimbursement from the City.
(c) If the City requires Licensee to adapt or conform its Facilities, or in any way or manner to alter, relocate or change its property to enable any other corporation or person, except the City, to use, or to use with greater convenience, any right of way, street, alley, highway or public place, Licensee shall not be required to take any action required in this subsection prior to receipt of pre-payment for any potential loss or expense caused by or arising out of Licensee's compliance with this subsection.
SECTION 6. INDEMNITY AND INSURANCE
(a) Indemnity As a condition hereof, Licensee agrees and is bound to defend, indemnify and hold the City, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury (including death), or property damage, suffered by any person or persons, to the extent that may arise out of or be occasioned by Licensee's use, and maintenance of the Right of Way or Licensee's System within the Right of Way, from any act or omission of any representative, agent, customer and/or employee of Licensee, or by Licensee's breach of any of the terms or provisions of this License, or by any negligent or strictly liable act of omission of Licensee, its officers, agents, employees or subcontractors in the use, and maintenance of the Right of Way or Licensee's installations and improvements within the licensed premises; except that the indemnity provided for in this paragraph shall not apply to any liability to the extent resulting from the negligence or fault of the City, its officers, agents, representatives, employees or separate contractors, and in the event of joint and concurring negligence or fault of both Licensee and the City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Kansas, and without waiving any defenses of the parties under Kansas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity.
The City also agrees and is bound to defend, indemnify and hold Licensee, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damage is sought, suffered by any person or persons, to the extent that may arise out of or be occasioned by any negligent or strictly liable act of omission of the City, its officers, agents, employees or subcontractors in the City's administration, or enforcement of this License, except as otherwise specifically provided to the contrary elsewhere in this License.
The City or Licensee ("Indemnitee") must give the other party ("Indemnifying Party") written notice of the making of any claim or the commencement of any action, suit or other proceeding for which the Indemnifying Party could be liable for indemnification under this License. In all instances in which Indemnifying Party is required under this License to indemnify the Indemnitee, such indemnification obligations shall be expressly conditioned upon Indemnitee having the right to investigate, compromise and defend against such claims. Indemnitee shall cooperate with Indemnifying Party in the defense of any litigation by furnishing such information and indemnitee may request assistance in the disposition of such matter.
(b) Insurance Licensee shall procure and keep in full force and effect commercial general liability insurance coverage issued by an insurance company authorized and approved by the State of Kansas, acceptable to the City and issued in the standard form approved by the State Board of Insurance. The insured provisions of such policy must name the City, its officers and employees as additional insured protecting the City against claims for damages to persons or property as a result of or arising out of the use, operation, and maintenance by Licensee of the Right of Way and Licensee's Facilities in connection therewith and located therein. The commercial general liability coverage must provide combined single limits of liability for bodily injury and property damage of not less than $1,000,000 for each occurrence. The coverage must be on an "occurrence" basis and must include coverage for premises operations, independent contractors, products/completed operations, personal injury, contractual liability, and medical payments. Such insurance shall also include coverage for underground, explosion, and collapse hazards.
(1) Each policy shall include a cancellation provision in which the insurance company is required to notify Licensee and the City in writing not fewer than 30 days before canceling the insurance policy.
(2) Licensee shall carry said insurance at its expense and shall furnish the City a certificate of such insurance upon request. In the event said insurance should terminate during the Primary Term, or Licensee fails to furnish a certificate of insurance coverage in accordance with the specifications as required by this section, the City may in its sole discretion terminate this License, so long as Licensee has had written notice and a reasonable opportunity to cure.
SECTION 7. ADMINISTRATION OF LICENSE
(a) The City Administrator or his or her designee is the principal City officer responsible for the administration of this License and shall review the operations of Licensee in the Right of Way under this License.
(b) It shall be the right of the governing body of the City at all times to keep fully informed as to all matters in connection with or affecting the construction, reconstruction, maintenance, operation and repair of Licensee's Facilities in the Right of Way and the recording and reporting by Licensee of all material changes to such Facilities
SECTION 8. RECORDS
(a) Licensee shall keep complete and accurate maps and records of its Facilities under this License. This requirement may include records or maps, which are reasonably necessary for purposes of identifying, accounting for, and reporting changes in the System.
(b) The City may, at reasonable times and for reasonable purposes under this License, examine, verify or review the documents, maps, plans and other records of Licensee directly related to this License. Licensee shall make the above records available to City for review at the City's office located at 701 Oregon, Hiawatha, Kansas, within 90 days after receipt of written notice by City Administrator or designee. The City agrees to keep any information provided to it by Licensee under this License as confidential and shall treat such confidential information as the City treats its own confidential and proprietary information; however, this shall not include records or maps which are reasonably necessary for purposes of identifying, accounting for, and reporting changes in the System for the reason many others use the Rights of Way.
(c) The City may, at any time, make inquiries pertaining to this license relating to Licensee's operation of the System within the City. Licensee shall respond to such inquiries within 30 days after receipt of written notice.
(d) At the time of completion and any time Facilities have been changed, or upon written request of the City, Licensee shall file with the Director of Public Works, or City Administrator or designee, a corrected list of Facilities located in the public Right of Way, and an up-to-date map of the System, showing all Facilities newly installed, expended and removed during previous year, as well as those which are currently in use.
(e) Copies of all petitions, applications, communications and reports submitted by Licensee to the Federal Communications Commission or any other regulatory agency, in respect to any matters directly affecting the System located in whole or in part within the City pursuant to this License, shall be provided to the City upon written notice.
SECTION 9. VIOLATIONS
Upon receipt of evidence by the City Administrator that violations of this License are occurring, or have occurred, he/she shall at once cause an investigation to be made. If the City Administrator finds that such a violation exists or has occurred, he/she shall take appropriate steps to secure compliance with the terms of this License. Such steps shall include the provision of a written notice to Licensee detailing the alleged violation and permitting Licensee a reasonable opportunity (no less than thirty days upon receipt of written notice) to cure the violation.
Written notice shall be provided to Licensee no later than thirty (30) days upon any the following:
(1) Receipt of evidence by the City Administrator of all alleged violations of this License;
(2) Investigation by the City Administrator of violations of this License;
(3) Findings by the City Administrator of Licensee's past or current violations of this License.
SECTION 10. ASSIGNMENT OF AGREEMENT
The rights granted by this Ordinance inure to the benefit of Licensee. Licensee shall notify the City of any proposed transfer or assignment of these rights, and the City shall have 180 days to act upon or deny said assignment or transfer. If the City fails to render a final decision, in writing, in 180 days, said assignment or transfer shall be deemed approved. Any successor shall be required to fulfill all the obligations of Licensee; provided, however, that Licensee may assign this License to any of its subsidiaries, affiliates, or successor legal entities or any subsidiary, affiliate, or successor legal entity of Sprint Communications Company L.P. without consent, but with notice to City.
SECTION 11. ACCEPTANCE OF ORDINANCE
(a) Licensee shall, within thirty (30) days of acceptance of this ordinance, file in the Office of City Clerk, a written instrument signed and acknowledged by a duly authorized officer in substantially the following form:
To The City Commission of the City of Hiawatha
Licensee, acting by its undersigned official hereunto duly authorized, hereby accepts Ordinance No. 2094 authorizing this License with Licensee.
By:
Title:
Date:
Attest:
Executed this, the _ day of -----, 2021
(b) Upon filing of the acceptance, this Ordinance shall become effective. In the event such acceptance is not filed within thirty (30) days this ordinance shall terminate and become null and void.
(c) As a further condition precedent to this Ordinance becoming effective:
(1) Licensee shall send to the City Administrator or designee of the City, the name and address of the person Licensee designates to receive official notices from the City.
(2) Licensee shall send to the City Administrator or designee of the City, as-builts, or maps certified by a licensed engineer accurately identifying the location and the length of the Facility. Notwithstanding, in the event that the Facility is not built, this condition shall be waived, and Licensee shall send to the City proposed drawings of the location and length of the Facility; and not later than ninety (90) days after the completion of the construction of the Facility, Licensee shall send to the City Administrator or designee of the City as-builts, or maps certified by a licensed engineer accurately identifying the location and the length of the Facility
SECTION 12. TERMINATION OF AGREEMENT AND REMOVAL OF FACILITIES
(a) If Licensee fails to comply with the terms of this License, the City shall send two written notices to Licensee. Each notice must be at least 30 days apart. Thirty (30) days after Licensee's receipt of the second written notice of breach or default from the City, the City may order that this Ordinance shall become null and void and send a written notice of termination from the City, and the City may order the removal of any of Licensee's Facilities which are above the surface of the Rights of Way and if Licensee should refuse, the City may remove such Facilities at Licensee's expense.
(b) Upon Licensee's failure to cure a default as set forth in subparagraph (a) above, the City shall reserve and have the absolute right to terminate this License. The City shall upon such determination become immediately entitled to possession of the Right of Way without giving any notice and without the necessity of legal proceedings to obtain possession thereof, that any rentals paid in advance shall be returned to Licensee in proportion to the unexpired rental period; and in any event upon termination or cancellation by the City or Licensee, Licensee shall, unless otherwise agreed to by the City, remove any Facilities from the Right of Way at Licensee's expense. All work shall be done to the reasonable satisfaction of the City.
SECTION 13. CONFORMITY TO CONSTITUTION, STATUTES, CHARTER AND CITY CODE
This ordinance is passed subject to the provisions of the Constitution and the laws of the United States of America, the State of Kansas and the charter provisions of the City of Hiawatha and applicable sections of the Hiawatha City Code.
SECTION 14. USE OF PREMISES
Licensee is prohibited from using the Rights of Way in any manner which violates any applicable Federal, State or local laws, regulations, rules and orders, regardless of when they become or became effective, including without limitation, those relating to health, safety, noise, environmental protection waste disposal and water and air quality. Licensee shall provide reasonably satisfactory evidence of compliance upon the written request of the City. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or from the Rights of Way due to Licensee's use and occupancy thereof, and not due to any pre-existing condition, Licensee, at its expense, shall be obligated to clean up the affected Rights of Way to the reasonable satisfaction of the City and any other governmental body having jurisdiction thereover. The City may, at its option, clean the affected Rights of Way. If the City elects to do so, Licensee shall promptly pay to the City the reasonable cost of such cleanup upon receipt of bills therefor. Licensee agrees that the indemnity provisions contained in Section 6(a) herein shall be fully applicable to the requirements of this paragraph, in the event of Licensee's breach of this paragraph or as a result of any such discharge, leakage, spillage, emission or pollution arising out of Licensee's use of the licensed premises. Licensee must also obtain any and all necessary governmental licenses and permits necessary in order to use the Rights of Way and Facilities for Licensee's intended purpose.
SECTION 15. EFFECTIVE DATE
This Ordinance shall take effect immediately from and after acceptance and filing in accordance with the provisions of Section 11 of this Ordinance and after publication of the following summary in the official city newspaper:
Ordinance No 2094 Summary
On March 1, 2021, the City Commission passed Ordinance No. 2094. The Ordinance authorizes an agreement between the City of Hiawatha and Sprint Communications Company, LP, for the purpose of allowing the Company to build and maintain a fiber optic transmission system within the City; regulating construction within the City; defining the rights and responsibilities of both the City and the Company under the agreement; requiring certain records and reports; indemnifying the City and its employees; providing for administration of the agreement and termination of the agreement. A complete copy of the Ordinance can be found at www.cityofhiawatha.org or in the office of the City Clerk, 701 Oregon Street, free of charge. This summary is certified by the City's legal counsel.
SECTION 16. EXTENT OF AGREEMENT
This Ordinance embodies the complete agreement of the parties, and shall supersede all oral or written previous and contemporary agreements between the parties and relating to matters in this License, and except as otherwise provided in this License cannot be modified without written agreement of the City and Licensee to be attached to and made a part of this License.
SECTION 17. SEVERABILITY
The terms and provisions of this ordinance shall be deemed to be severable. If the validity of any section, subsection, sentence, clause or phrase of this ordinance should be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of any other section, subsection, sentence, clause or phrase of this ordinance. If any material term or provision of this ordinance is so declared invalid, the parties shall promptly begin negotiations for a replacement.
SECTION 18. VENUE
This License is performable in the State of Kansas and exclusive legal venue for any litigation arising under this License shall lie in Brown County, Kansas, and shall be governed by the laws of the State Kansas.
SECTION 19. WRITTEN NOTICE TO PARTIES
For the purposes of this License, written notice shall be sent to the following:
(a) Written notice to the City: City Administrator, 701 Oregon St., Hiawatha, KS 66434
(b) Written notice to Licensee: Sprint Communications Company L.P., ATTN: Manager, Sprint Real Estate, 6391 Sprint Parkway, MS: KSOPHT0101-Z2040, Overland Park, KS 66251
With a copy to:
Sprint Communications Company L.P. 12920 SE 38th Street
Bellevue, WA 98006
Attn: Managing Attorney, Real Estate
(03-01-2021)