AN ORDINANCE OF THE CITY OF HAYSVILLE, KANSAS, GRANTING TO, FRANCHISEE, ITS SUCCESSORS AND ASSIGNS, A DISTRIBUTED ANTENNA SYSTEMS (DAS) FACILITY FRANCHISE AND PRESCRIBING THE TERMS OF SAID GRANT AND RELATING THERETO.

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF HAYSVILLE, KANSAS:

This Franchise Agreement (“Agreement”) is entered into as of DATE (“Effective Date”) by and between the City of Haysville, a municipal corporation (the “City”), arid Zayo Group, LLC (“Franchisee”), a Kansas corporation.

ARTICLE 1 GRANT OF FRANCHISE

1.1  Grant of Franchise and Permitted Installation. Zayo is granted a nonexclusive franchise to, and may, at Zayo’s sole cost and expense and during the term of and subject to the conditions of this ordinance (“Agreement”), locate, construct, place, attach, install, operate, use, control, repair, replace, upgrade, enhance and maintain the Facilities for the purposes of: (a) providing the Zayo Services within the City in the capacity of a “provider” under K.S.A. 17-1902(a)(2); and (b) providing the Infrastructure Services to Zayo’s Customers, in the capacity of a “competitive infrastructure provider” under K.S.A. 171902(a)(4). Zayo shall undertake and perform any 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 approved by the City and after obtaining all necessary permits for all work in the Right of Way (ROW). The City shall process each valid and administratively complete application for requested permits and approvals within thirty (30) days from the 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 ROW may require additional easements from third parties for underground fiber to connect to Network within the ROW. All additional easements, and costs associated therewith, shall be the sole responsibility of Zayo. Zayo shall also be solely responsible for obtaining any and all permits and/or approvals for the portion of its Facilities located outside the ROW, including any zoning approvals, if applicable. The location, depth of the fiber underground, and any other requirements shall be approved in writing by the City prior to construction of the Facilities at that specific location. Approval of plans and specifications and the issuance of any permits by the City shall not release Zayo from the responsibility for, or the connection of, any errors, omissions or other mistakes that may be contained in the plans, specifications and/or permits. Zayo shall be responsible for notifying the City and all other relevant patties immediately upon discovery of such omissions and/or errors and with obtaining any amendments for connected City-approved permits, as may be necessary. Zayo shall be responsible for all costs associated with the permitting process, including, but not limited to, repairs and replacement of ROW. 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 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. At least ten (10) days prior to the installation of the Facilities, Zayo shall deliver to the City a schedule for the proposed work related to the construction of the Facilities, as well as a list of the names of all agents and contractors of Zayo authorized by Zayo to access the ROW on Zayo’s behalf.

1.1.4  Coordination of Work. Zayo shall be responsible for coordination of work to avoid any interference with existing utilities, substructures, facilities and/or operations of the City or other utilities within the ROW. Zayo shall at all times maintain with the City a local point of contact who shall be available at all times to act on behalf of Zayo in the event of an emergency Zayo shall provide the City with said local contact’s name, address, telephone number, fax number and e-mail address. Emergency notice by Zayo to the City may be made by telephone to the City Clerk or the City Engineer. Zayo shall be solely responsible for communicating with Kansas One-Call.

1.1.5  Inspection by City. The City shall have reasonable access to inspect any work conducted by Zayo during the installation, maintenance and/or repairs of the Facilities. Said inspection(s) shall be made by the City Engineer and/or his/her authorized representative.

1.1.6  Other Utility Providers. When necessary, and at its sole cost and expense, Zayo shall coordinate with other utility providers for other needed utility services. Zayo and the City will reasonably cooperate with the other utility providers regarding the location of any meter, pole, and other apparatuses required for each Site.

1.1.7  Existing Utility Poles. Zayo may attach its Facilities to an existing utility pole pursuant to a properly executed agreement with the pole owner, provided, however, that any necessary replacement of the pole in order to accommodate the attachment shall be subject to Law and the proper exercise of the City’s police powers, and in no instance shall Zayo erect a new pole within an existing aerial pole line absent the City’s prior authorization.

1.2  Compliance with Laws. Notwithstanding anything contained herein to the contrary, this Agreement, and each provision hereof, are subject to the terms and conditions of all applicable federal, state and local Laws and the Parties shall comply with any such Laws in the exercise of their rights and performance of their obligations under this Agreement. “Laws” or “Law” as used in this Agreement means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits, approvals or other applicable requirements of the City, including but not limited to, ordinances and regulations of the City relating to the use and occupancy of the ROW, or other governmental entity or agency having joint or several jurisdiction over the Parties’ activities under this Agreement or having jurisdiction that is applicable to any aspect of this Agreement that are in force on the Effective Date and as they may be enacted, issued or amended during the term of this Agreement.

1.2.1  Definitions. For purposes of this Agreement most terms shall be defined within the City’s Wireless Telecommunications Facilities Siting Regulations or Code, except the following words and phrases shall have the following meanings:

Access line shall mean, and be limited to, retail billed and collected residential lines; business lines; ISDN lines; PBX trunks and simulated exchange access lines provided by a central office based switching arrangement where all stations served by such simulated exchange access lines are used by a single customer of the provider of such arrangement. “Access line” may not be construed to include interoffice transport or other transmission media that do not terminate at an end user customer’s premises, or to permit duplicate or multiple assessment of access line rates on the provision of a single service or on the multiple communications paths derived from a billed and collected access line. “Access line” shall not include the following: wireless telecommunications services, the sale or lease of unbundled loop facilities, special access services, lines providing only data services without voice services processed by a telecommunications local exchange service provider or private line service arrangements.

Access line count means the number of access lines serving consumers within the corporate boundaries of the city on the last day of each month.

Access line fee means the fee determined by the city, up to a maximum as set out in K.S.A. 12-2001 (Supplemental 2002) and amendments thereto, to be used by Franchisee in calculating the amount of access line remittance.

Access line remittance means the amount to be paid by Franchisee to the city, the total of which is calculated by multiplying the access line fee, as determined by the city, by the number of access lines served by Franchisee as a telecommunications local exchange service provider within the city for each month in that calendar quarter.

Cable service is defined as set forth in 47 U.S.C. Section 522(6), and amendments thereto.

City means the City of Haysville, Kansas.

Competitive infrastructure provider means an entity which leases, sells or otherwise conveys facilities located in the right-of-way, or the capacity or bandwidth of such facilities for use in the provision of telecommunications services, internet services, or other intrastate or interstate traffic, but does not itself provide services directly to end users within the corporate limits of the city.

Distributed antenna system (“DAS”) facility or facilities means certain components of the network consisting of distributed antenna systems which may be located on existing or new streetlights, stand-alone poles, third party utility poles, and other structures located on or within the ROW as permitted under this contract franchise ordinance, and which will be connected to underground and aboveground fiber optic cable, fiber hand-holes and enclosures, fiber repeaters and related equipment.

Facility or facilities means any portion or component of the network located in, along, over, upon, under, or through the public right-of-way.

Franchise fee means the fees established under this article for each grant of access to the public rights-of-way.

Local exchange service means local switched telecommunications service within any local exchange service area approved by the state corporation commission, regardless of the medium by which the local telecommunications service is provided. The term local exchange service shall not include wireless communication services.

Network means the franchisee’s fiber network and distributed antenna system facilities, including the antenna nodes, poles, equipment cabinets, underground and aboveground fiber optic cable, wires, lines, fiber hand-holes and enclosures, fiber repeaters and related equipment and appurtenance, and similar facilities and appurtenances, designed, constructed or occupied for the purpose of producing, receiving, amplifying or distributing telecommunications service to or from locations within the city.

Law(s) means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits, approvals or other applicable requirements of the city or other governmental entity or agency having joint or several jurisdiction over any aspect of this contract franchise agreement or the parties’ activities hereunder, whether now existing or hereafter adopted, including, but not limited to, a city right-of-way management ordinance and the city’s zoning and land use laws to the extent they are not inconsistent with state and federal law regulating use of the public rights-of-way, and any related laws, rules, or regulations and amendments thereto relating to the use and occupancy of the public rights-of-way.

Provider means a local exchange carrier as defined in subsection (h) of K.S.A. 66-1, 187, and amendments thereto, or a telecommunications carrier as defined in subsection (m) of K.S.A. 66-1, 187, and amendments thereto, or a video service provider as defined in K.S.A. 12-2022, and amendments thereto.

Public right(s)-of-way (“ROW”) means only the area of real property in which the city has a dedicated or acquired right-of-way interest in the real property. It shall include the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications or other non-wire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.

Telecommunications service(s) 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.

1.2.2  Zoning Regulations. Zoning regulations and any additional Telecommunications Regulations adopted by the City shall apply to the Networks or installations which are the subject of this Agreement.

1.3  Permits. Zayo shall obtain all ministerial permits (the “Permits”) and pay those fees associated therewith relating to the installation of the Network as currently required and allowed by Law.

1.3.1  Right of Way Permits. Zayo shall obtain any necessary right of way permits from the City for the installation of the Network and for any other work within the ROW and shall pay all applicable fees associated therewith.

1.3.2  Building Permits. Zayo shall obtain any necessary building permits from the City for the installation of the Network and for any other work within the ROW, and shall pay all applicable fees associated therewith. In particular, separate permits shall be required for electric service for each location of the Facilities requiring such service.

1.3.3  Compliance with Permits. All work within the ROW shall be performed in strict compliance with all applicable Permits and Law.

1.3.4  Fee Increases. If prior to the second anniversary of the date hereof, the City increases the permitting fees described in the Sections above, and if with respect to all similarly situated franchisee license agreements executed by the City in such 2-year period the franchisee or licensee is subject to a similar fee provision, then Zayo will pay to the City the increased fees as if the increased fee schedule had been in effect as of the date hereof upon being billed therefor by the City.

1.4  Placement of Facilities. Zayo shall coordinate the placement of its Facilities in the ROW in a manner that minimizes adverse impact on public improvements, as reasonably determined by the City, and in accordance with Law.

1.5  New Stand-Alone Poles and Related Facilities. It is understood that in connection with the DAS Facilities, Zayo may build new stand-alone poles approximating the size of standard street light or utility poles, including ancillary equipment for connection of antennae located on new stand-alone poles to utilities and fiber optic cable, which would comply with all right of way and building permits applicable to utility providers in the City, Law and the provisions of Section 4.3 hereof (“New Poles”). The Parties agree that in areas where there are existing street light poles, utility poles and similar structures, Zayo will use its best efforts to work with the owner of that existing pole or structure to collocate the DAS Facility but only when the pole or structure 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 Stand-Alone Poles. The Parties understand and agree that at no cost . to the City, 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 Zayo’s use of its Network or Facilities. Zayo 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, Zayo 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 the risk of such imminent threat of harm to persons or property. Zayo 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 Zayo; 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 Zayo seeks reimbursement for a third party either directly or through applicable insurance, the City shall assign to Zayo any rights the City may have against such third party for such claim.

1.6  Franchise and Permit Fees. Zayo is solely responsible for the payment of all lawful franchise and permit fees in connection with Zayo’s performance under this Agreement.

1.6.1  Franchise Fees.

(a)   Zayo Services. In consideration of this Franchise Agreement for Zayo Services, Zayo agrees to remit to the City a franchise fee of five percent (5%) of Gross Revenues. “Gross Revenues” means only those revenues derived from services provided within the corporate boundaries of the City which include: (A) recurring local exchange service for business and residence which includes basic exchange service, touch tone, optional calling features and measured local calls; (B) recurring local exchange access line services for pay phone lines provided by a telecommunications local exchange service provider to all pay phone service providers; (C) local directory assistance revenue; (D) line status verification/busy interrupt revenue; (E) local operator assistance revenue; (F) nonrecurring local exchange service revenue which shall include customer service for installation of lines, reconnection of service and charge for duplicate bills; and (G) RF telecommunications service revenue or any other operating revenue derived from leasing Zayo’s dark fiber and indefeasible rights of use “IRU” fees. All other revenues, including, but not limited to, revenues from extended area service, the sale or lease of unbundled network elements, nonregulated services, carrier and end user access, long distance, wireless telecommunications services, lines providing only data service without voice services processed by a telecommunications local exchange service provider, private line service arrangements, internet, broadband and all other services not wholly local in nature are excluded from gross revenues. Gross revenues shall be reduced by bad debt expenses that are attributable to Sections (A) through (G) as referenced within this Section 1.6.1.

(b)   Uncollectible and late charges shall not be included within IRU Revenues or Gross Revenues.

(c)   Zayo shall pay the franchise fees described in subparagraphs (a) and (b) above (each a “Franchise Fee”) on the 15th day of the month following each calendar quarter in which the IRU Revenues and Gross Revenues are received.

1.6.2  DAS Facility License Fee. In addition to all fees required by Law and this Agreement, a one-time permit and license fee of $1,000.00 for each DAS Facility installed within the ROW of the City, up to 40 DAS Facilities shall be paid by Zayo. After the 40th installation, the fee will be the then current fee charged by the City for similar access, with a minimum fee of $1,000.00 for each Facility. Zayo shall pay the DAS Facility Permit Fee the 15th day following the month after each DAS Facility is installed within the ROW.

1.6.3  ROW Fees. In accordance with Law, Zayo shall pay the City such fees required by the City in connection with use of the ROW, including such fees as required by the City ordinances and established by City resolutions, governing the use of the ROW. These fees must be competitively neutral and may not be unreasonable or discriminatory.

1.6.4  Accounting Matters. Zayo shall keep accurate books of account at its principal office in Buhler, Kansas, or such other location of its choosing for the purpose of determining the amounts due to the City under § 1.6 above. No more than once per year, the City may inspect Zayo’s books of account relative to the application of the franchise fees required under subsection 1.6.1 of this Agreement any time during regular business hours on thirty (30) days’ prior written notice and may audit the books from time to time at the City’s sole expense, but in each case only to the extent necessary to confirm the accuracy of payments due under § 1.6- 1.7 above. The City agrees to hold in confidence any non-public information it learns from Zayo to the fullest extent permitted by Law.

1.6.5  Application Fee. Upon execution and approval of this Agreement, Zayo shall pay to the City a one-time application fee in the sum of $2,000 to recover the City’s costs associated with the review and approval of this Agreement. The City certifies that such fee constitutes reimbursement to the City for its reasonable, actual and verifiable costs of reviewing and approving this Agreement.

1.7  Access to the Facilities.

1.7.1  Zayo Access to Facilities for Repair. Zayo will be given reasonable access to each of the Facilities in the ROW for the purposes of routine installation, repair, maintenance or removal of Facilities. If any such maintenance activities have the potential to result in an interruption of any City services at the Facility, Zayo shall provide the City with a minimum of three (3) days prior written notice of such maintenance activities. Such maintenance activities shall, to the extent feasible, be done with minimal impairment, interruption, or interference to City services.

1.7.2  City Observation. Zayo shall allow a representative of the City to observe any repair, maintenance or removal work performed at the Facilities.

ARTICLE 2 TERM AND TERMINATION

2.1  Term. This Franchise Agreement shall be effective from the effective date for three (3) years thereafter. Thereafter, this Agreement shall automatically renew for successive terms of three (3) years unless written notice is given by either Zayo or the City to the other one hundred twenty (120) days or more prior to the expiration of the initial term, or any successive term, of its intention to terminate the same at the expiration of the then current term. In no event, shall the City be permitted to terminate Zayo’s right under this Agreement to place Facilities in the ROW unless terms of the Agreement are breached and/or local, state, or federal law permit.

2.2  90-Day Remedy Period. If the Agreement is breached by Zayo, then Zayo shall have no more than ninety (90) days from written notice from the City of the breach to either remedy the breach or remove its equipment and restore the Facilities, as set forth in Article 3, below. If Zayo fails to remedy the breach or remove its equipment during said ninety (90) day period, Zayo shall forfeit all rights, privileges and franchise granted herein, and the City may recover from Zayo all unpaid amounts due to the City hereunder, as well as costs incurred by the City in enforcing this Agreement, including costs of removal and restoration required in Article 3 below.

2.3  Termination of Use. Notwithstanding Section 2.1 above, Zayo may terminate its use of any part or the entire Network by providing the City with ninety (90) days prior written notice. In the event of any such termination, Zayo’s payment obligations to the City shall terminate simultaneously with the termination of use, provided Zayo removes its equipment and restores the Facilities, as set forth in Article 3 prior to the termination date.

ARTICLE 3 REMOVAL AND RELOCATION

3.1  Removal Due to Public Project. Upon receipt of a written demand from the City portion of the Network removed pursuant to this Section 3 .1 in a manner that allows Zayo to continue providing service to its 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 and relocation occurring under this Section.

3.2  Removal Due to Termination. No later than ninety (90) days after termination of this Agreement pursuant to the provisions of this Agreement, Zayo shall, at its sole cost and expense, remove the Network or the terminated portion thereof and, if such removal disturbs the locations or adjacent property (including ROW or City real property), restore each Facility and its adjacent property to its original condition, reasonable wear and tear excepted, and further excepting landscaping and related irrigation equipment, or other aesthetic improvements made by Zayo to the Facility or adjacent property, or as otherwise required by the City. For New Poles, Zayo shall install a new streetlight or facility as directed by City Engineer, or his or her designee. Alternatively, the City may allow Zayo, in the City’s sole and absolute discretion, to abandon the Network, or any part thereof, in place and convey it to the City.

3.3  Abandonment. In the event Zayo ceases to operate and. abandons the Network, or any part thereof, for a period of ninety (90) days or more, Zayo 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. Failure to remove may be addressed in conformance with the City’s nuisance abatement procedures. If such removal disturbs the Facility or adjacent property (including ROW or City real property), Zayo shall also, at its sole cost and expense, restore the Facility or adjacent property to its original condition, reasonable wear and tear excepted, and further excepting landscaping and related irrigation equipment, or other aesthetic improvements made by Zayo to the Facility or adjacent property. Alternatively, the City may allow Zayo, in the City’s sole and absolute discretion, to abandon the Network, or any part thereof, in place and convey it to the City.

3.4  No Relocation Compensation. The parties understand and agree that neither the City nor Zayo is entitled to compensation for any relocation of its Network that may be required under Section 3.1. Zayo acknowledges that Zayo 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 for cause.

ARTICLE 4 MAINTENANCE AND REPAIR

4.1  Electricity Use. Zayo be solely responsible for and shall pay for the electricity and other utilities services it consumes in its operations at the rate charged by the servicing utility company. If Zayo collocates any Facility on any street light or utility poles of the City or leased by the City from a utility company, Zayo shall, at its sole expense, provide separate utility service and/or metering to such Facility.

4.2  Maintenance and Repair. Zayo shall, at Zayo’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, Zayo shall, at Zayo’s sole cost and expense, replace the irreparable part of the Network. Zayo shall not cause rubbish, garbage or debris on or around its Network or the Facilities and shall not permit any rubbish, garbage or debris to accumulate on or around in any enclosed areas around the Facilities. If the City gives Zayo written notice of a failure by Zayo to maintain the Facilities, Zayo shall use its best efforts to remedy such failure within forty-eight ( 48) hours after receipt of such written notice.

4.3  Appearance. Zayo shall cooperate with the City on all issues of aesthetics and appearance. Zayo shall follow all legally binding City policies, state and local ordinances with respect to aesthetics. All locations of DAS Facilities must be aesthetically approved by the City Manager or his or her designee, such approval not to be unreasonably withheld.

4.4  Repair of ROW. Zayo 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 Zayo’s construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of the Network in the ROW. Zayo shall promptly repair such damage and return the ROW and any affected adjacent property to a safe and satisfactory condition to the City in accordance with the City’s applicable street restoration standards or to the property owner if not the City. Zayo’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 ROW by Zayo to the City.

4.5  Bond. Zayo shall provide a bond in an amount determined by the City to represent the estimated cost of Zayo’s obligations under Sections 3 and 4 of this Agreement, which the City may require Zayo to increase from time to time to reflect the reasonable estimated cost of performing such obligations, to secure performance of Zayo’s obligations under Sections 3 and 4, not to exceed $10,000.

ARTICLE 5 TAXES

5.1  Taxes. Zayo agrees that it will be solely responsible for the payment of any and all applicable taxes, fees and assessments levied on its ownership, use and maintenance of the Network and this Agreement. Pursuant to the Kansas Revenue and Taxation Code, the City hereby advises, and Zayo recognizes and understands, that Zayo’s use of the ROW and/or the New Poles may create a possessory interest subject to real property taxation and that Zayo may be subject to, and responsible for, the payment of real property taxes levied on such interest. Zayo will cooperate with the Sedgwick County Assessor in providing any information necessary for the Assessor to make a property tax determination. Zayo reserves the right to challenge any such assessment, and the City agrees to cooperate with Zayo in connection with any such challenge.

ARTICLE 6 INDEMNIFICATION

6.1  Indemnity. Zayo shall indemnify, defend, and hold harmless the City, its Council members, officers, 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 Zayo pursuant to this Agreement, except to the extent arising from or caused by the gross negligence or willful misconduct of the City, its councilmembers, officers, employees, agents, or contractors. The City shall promptly notify Zayo of any claim, action or proceeding covered by this Section 6.1.

6.2  Waiver of Claims. Zayo waives all claims, demands, causes of action, and rights it may assert against the City on account of any loss, damage, or injury to any portion of the Network, or any loss or degradation of the services provided by the Network resulting from any event or occurrence except for any loss, damage, or injury to any portion of the Network, or any loss or degradation of the services provided by the Network resulting from the gross negligence or willful misconduct of the City.

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 agents, officers, employees, or contractors, shall not be liable for any damage from any cause whatsoever to the Facilities, specifically including, without limitation, damage, if any, resulting from the City’s maintenance operations adjacent to the Facilities or from vandalism or unauthorized use of the Facilities, except to the extent such damage is caused by the gross negligence or willful misconduct of City, its agents, officers, employees or contractors. The City will in no event be liable for indirect, punitive or consequential damages. Nothing in the Agreement shall be deemed to affect the rights, privileges and immunities of the City as set forth in the Kansas Tort Claims Act,

6.4  Limitation of Zayo’s Liability. In no event shall Zayo be liable for Indirect, punitive or consequential damages in connection with or arising from this Agreement, or its use of the Network, New Poles, and ROW.

ARTICLE 7 INSURANCE

7.1  Minimum Insurance Requirements. Zayo 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 Article.

(a)   Minimum Insurance. Zayo shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:

(i)    General Liability: A policy or policies of Comprehensive General Liability Insurance, with minimum limits of $2,000,000 combined single-limit per-occurrence for bodily injury, personal injury, death, loss and property damage resulting from wrongful or negligent acts by Zayo. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

(ii)   Automobile Liability: A policy or policies of Comprehensive Vehicle Liability Insurance covering personal injury and property damage, with minimum limits of $1,000,000 combined single-limit per-accident for bodily injury and property damage covering any vehicle utilized by Zayo in performing the work covered by this Agreement

(iii)  Workers’ Compensation and Employer’s Liability: Workers’ compensation limits as required by the Labor Code, and Employer’s Liability limits of $1,000,000 per accident.

(b)   Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions shall not exceed $25,000; provided, however, if Zayo’s insurance policy expressly provides (i) that the insurer is required to pay covered claims with no deduction for all or any part of the Zayo’s deductible, and (ii) insurer’s obligation to pay covered claims is triggered irrespective of whether or not the insured pays the deductible, then Zayo’s deductible shall not exceed $100,000 for Comprehensive General Liability Insurance, $100,000 for Comprehensive Vehicle Liability Insurance and $250,000 for Workers’ Compensation and Employer’s Liability coverage.

(c)   Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the following provisions:

(i)    General Liability and Automobile Liability Coverage.

(1)   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 Employer’s Liability policies.

(2)   Zayo’s insurance coverage shall be primary insurance as respects the Insureds with respect to the matters covered by this Agreement. Any insurance or self insurance maintained by the Insureds shall be in excess of Zayo’s insurance and shall not contribute with it.

(3)   Any failure of Zayo to comply with reporting provisions of the policies shall not affect coverage provided to the Insureds.

(ii)   Zayo’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. Worker’s Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Insureds for losses arising from work performed by Zayo in the ROW.

(iii)  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, Zayo shall within two (2) business days of notice from the insurer, notify the City by phone or fax of the changes to or cancellation of the policy and shall confirm such notice via certified mail, return receipt requested.

(d)   Acceptability of Insurers. Insurance shall be placed with insurers with an AM. Best rating of no less than A-VII.

(e)   Verification of Coverage. Zayo shall furnish the City with certificates of insurance required by this Article 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.

(f)   Secondary Parties. In the event Zayo hires any subcontractors, independent contractors or agents (“Secondary Parties”) to locate, place, attach, install, operate, use, control, replace, repair or maintain the Network, Zayo shall require the Secondary Parties to obtain and maintain insurance commensurate to the work such Secondary Parties perform.

ARTICLE 8 DEFAULT

8.1  Default.

8.1.1  Defined. A “Default” shall be deemed to have occurred under this Agreement if a party fails to cure such within thirty (30) days after written notice specifying such breach, provided that if the breach is of a nature that it cannot be cured within thirty (30) days, a default shall not have occurred so long as the breaching party has commenced to cure within said time period and thereafter diligently pursues such cure to completion.

8.1.2  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 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 ROW: or (ii) if Zayo’s licenses are terminated, revoked, expired, or otherwise abandoned. Such termination rights shall be subject to Zayo’s rights 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 matter subsequently occurring.

8.4  Interest. If Zayo fails to make any payment under this Agreement when due, such amounts shall accrue interest from the date such payment is due until paid, including accrued interest, at an annual rate of ten percent (10%) or, if lower, the highest percentage allowed by law.

ARTICLE 9 INTERFERENCE

9.1  Non-Interference with Non-Public Safety Communications Systems. Zayo 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 Zayo may make to the Network.

9.2  Non-Interference with Public Safety Communications Systems. Zayo’s Network and Facilities shall not cause interference with public safety communications systems operated by City or any other public agency regardless of the date such systems or any components thereof have been placed in service. Nor shall Zayo’s Network and Facilities cause interference with the City’s use of the New Poles for their intended purpose as streetlights, traffic lights, and/or stand-alone light poles.

9.3  Correction of Interference. If such interference with the Facilities described in Sections 9.1 and 9.2 occur, Zayo shall, upon receipt of written notice thereof from City, immediately commence commercially reasonable, diligent, efforts to correct or eliminate such interference. If such interference cannot be corrected by-Zayo to the reasonable satisfaction of City within the cure period set forth for in the City’s notice, which notice shall not be less than 30 days absent an emergency or danger to public health and safety requiring shorter notice, such interference shall be deemed a material breach under this Agreement and City may terminate this Agreement. Interference caused by actions of Zayo’s Customer(s) remain the responsibility of Zayo.

ARTICLE 10 MISCELLANEOUS PROVISIONS

10.1  City Property. Except for rights granted herein for use of the ROW, nothing contained herein shall be deemed to grant to Zayo any right, easement or license to use any real or personal property of the City. Any such use, if requested and granted, shall be governed by separate agreement between the City and Zayo in form and content acceptable to each, in their sole and absolute discretion.

10.2  Nonexclusive Use. Zayo acknowledges that this Agreement does not provide Zayo with exclusive use of the ROW and that City retains the right to permit other providers of communications services to install equipment or devices in the ROW.

10.3  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 ROW engaged in the same or similar business described in this Franchise Agreement. Should the City enter into any subsequent agreement of any kind no matter what nomenclature is attached thereto with any other franchisee during the term of this Franchise Agreement, which Agreement provides for benefits or terms more favorable than those contained in this Franchise Agreement, then this Franchise Agreement shall be deemed to be modified effective as of the date of such more favorable agreement to provide Zayo with those more favorable benefits and terms. The City shall notify Zayo promptly of the existence of such more favorable benefits and terms and Zayo shall have the right to receive the more favorable benefits and terms immediately. If requested in writing by Zayo, the City shall amend this Franchise Agreement to contain the more favorable terms and conditions.

10.3.1  Most-Favored Municipality. Should Zayo after the Parties’ execution and delivery of this Agreement enter into a franchise agreement with another municipality of the same size or smaller than the City in this State, which agreement contains financial benefits for such municipality which, taken as a whole and balanced with the other terms of such agreement, are in the City’s opinion substantially superior to those in this Franchise Agreement, the City shall have the right to require that Zayo modify this Franchise Agreement to incorporate the same or substantially similar superior benefits.

10.4  Notices. All notices which shall or may be given pursuant to this Agreement shall be in writing and served by (1) electronic mail; and (2) personally served or transmitted through first class United States mail, or by express mail providing for overnight delivery, postage prepaid, to the following address or such other address of which a party may give written notice:

City:                                                              Zayo:

City of Haysville, Kansas                               Zayo

Attn: City Clerk                                             Attn : General Counsel, ZPI

200 W. Grand Ave.                                        1805 29th Street

Haysville, KS 67060                                      Boulder, CO 80301

Such notice shall be deemed made when personally delivered; if mailed via first class U.S. Mail, such notice shall be deemed made three (3) calendar days after the date of deposit in the U.S. Mail; if mailed via express/overnight mail, such notice shall be deemed made two (2) calendar days after the date of deposit in a designated overnight delivery mailbox or other like facility. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

10.5  Sublease/Assignment. If Zaya assigns, sublets, enters into a franchise license or concession agreement, changes ownership of the Network or voting control of Zayo, mortgage, encumber, pledge, hypothecate or other transfer (including any transfer by operation of law this Agreement or any interest therein) Zayo will provide notice of a transfer within a reasonable time.

10.6  Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, successors, assigns and transferees.

10.7  Entire Agreement; Modification; Waiver. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof. All prior and contemporaneous agreements, representations, negotiations, and understandings of the parties, oral or written, relating to the subject matter hereof are merged into and superseded by this Agreement. Any modification or amendment to this Agreement shall be of no force and effect unless it is in writing and signed by the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit either party to provide a waiver in the future except to the extent specifically set forth in writing. No waiver shall be binding unless executed in writing by the party making the waiver.

10.8  Severability. If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision or provisions shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement.

10.9  Governing Law. This Agreement shall be interpreted and enforced according to, and the parties’ rights and obligations governed by, the domestic law of the State of Kansas or applicable federal law, without regard to laws regarding choice of applicable law. Any proceeding or action to enforce this Agreement, or otherwise directly related to this Agreement shall occur in the federal court with jurisdiction over Sedgwick County or the state courts located in Sedgwick County, Kansas.

10.10  Survival of Terms. All of the terms and conditions in this Agreement related to payment, removal due to termination or abandonment, indemnification, limits of City’s liability, attorneys’ fees and waiver shall survive termination of this Agreement.

10.11  Captions and Paragraph Headings. Captions and paragraph headings used herein are for convenience only. They are not a part of this Agreement and shall not be used in construing this Agreement.

10.12  Drafting. The parties agree that this Agreement is the project of joint draftsmanship and that should any of the terms be determined by a court, or in any type of quasi-judicial or other proceeding, to be vague, ambiguous and/or unintelligible, that the same sentences, phrases, clauses or other wording or language of any kind shall not be construed against the drafting party.

10.13  Execution in Counterparts. This Agreement may be executed in one or more identical counterparts and all such counterparts together shall constitute a single instrument for the purpose of the effectiveness of this Agreement.

10.14  Authority to Execute This Agreement. Each person or persons executing this Agreement and acceptance on behalf of a party, warrants and represents that he or she has the full right, power, legal capacity and authority to execute this Agreement on behalf of such party and has the authority to bind such party to the performance of its obligations under this Agreement without the approval or consent of any other person or entity.

10.15  No Warranty by the City. The City makes no representations or warranties regarding the suitability, condition or fitness of the locations for the installation, maintenance or use of the New Poles or the Facilities.

10.16  Agreement Applicable Only to the Facilities. This Agreement shall not be construed to permit construction, installation, maintenance or use of Facilities on any property other than the Facilities.

10.17  No Abrogation of Legal Responsibilities. The City’s execution of this Agreement shall not abrogate, in any way, Zayo’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.

10.18  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 Law.

ARTICLE 11 ZAYO’S ACCEPTANCE; EFFECTIVE DATE

11.1  Acceptance of Terms. Zayo shall have thirty (30) days after the passage and approval of this ordinance to file with the City Clerk its acceptance, in writing, of the provisions, terms and conditions of this ordinance, which acceptance shall be duly acknowledged before an officer authorized by law to administer oaths; and when so accepted, this ordinance and acceptance shall constitute a contract between the City and Zayo subject to the provisions of the laws of the state of Kansas, and such contract shall be deemed effective on the date of publication.

(11-09-2015)