§ 1. Installation of the network.  

Latest version.
  • 1.1

    Permitted Installation. Wildflower may at Wildflower's sole cost and expense and during the term of this Agreement, locate, construct, place, attach, install, operate, use, control, repair, replace, upgrade, enhance and maintain the Facilities subject to the terms and conditions of this Agreement. Wildflower shall undertake and perform any work authorized by this Agreement in a skillful and workmanlike manner.


    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 ROW and/or on City property. Such approval review shall be made no later than forty-five days (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 Public ROW may require additional easements for underground fiber to connect to Network within the Public ROW. Such additional easements shall be located so as not to interfere with the City's use of its property. 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 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 Wildflower from the responsibility for, or the correction of, any errors, omissions or other mistakes that may be contained in the plans, specifications and/or permits. Wildflower shall be responsible for notifying the City and all other relevant parties immediately upon discovery of such omissions and/or errors and with obtaining any amendments for corrected City-approved permits, as may be necessary. Wildflower shall be responsible for all costs associated with the permitting process, including, but not limited to, repairs and replacement of City 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.


    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 unreasonably be withheld, conditioned or delayed.


    Construction Schedule. If requested by the City, at least ten (10) days prior to the installation of the Facilities, Wildflower 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 Wildflower authorized by Wildflower to access the City ROW and City owned property on Wildflower's behalf.


    Coordination of Work. Wildflower shall be responsible for coordination of work to avoid any interference with existing utilities, substructures, facilities and/or operations within the City's ROW. Wildflower shall be the City's point of contact and all communications shall be through Wildflower. Wildflower shall be solely responsible for communicating with Kansas One-Call.


    Inspection by City. The City shall have commercially reasonable access to inspect any work conducted by Wildflower during the installation, maintenance and/or repairs of the Facilities.


    Other Utility Providers. When necessary, Wildflower shall coordinate with other utility providers for other needed utility services. Wildflower 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.


    Existing Utility Poles. Wildflower 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 the proper exercise of the City's police powers, and in no instance shall Wildflower erect a new pole within an existing aerial pole line absent the City's prior authorization.


    Compliance with Laws. This Agreement is 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 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.


    Zoning Regulations. Zoning regulations shall not apply to installations within the Public ROW.


    Permits. Wildflower shall obtain all ministerial permits (the "Permits") and pay those fees associated therewith relating to the installation of the Network as currently allowed by Law.


    Encroachment Permits. Wildflower shall obtain any necessary encroachment permits from the City for the installation of the Network and for any other work within the City's ROW or other real property of the City, if required by the City's Municipal Code ("'Code").


    Building Permits. Wildflower shall obtain any necessary building permits from the City for the installation of the Network and for any other work within the City's ROW or other real property of the City, if required by the Code or State Law.


    Compliance with Permits. All work within the City's ROW or other real property of the City shall be performed in strict compliance with all applicable Permits and all applicable regulatory requirements.


    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 Wildflower 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.


    Placement of Facilities. Wildflower shall coordinate the placement of its Facilities in the Public ROW in a manner that minimizes adverse impact on public improvements, as reasonably determined by the City Engineer.


    New Streetlight Poles and other City Facilities. It is understood that Wildflower may build new streetlight poles or other such facilities required for the installation of the Facilities which would comply with all encroachment and building permits, applicable City, state and federal specifications, and Laws ("New Poles"). The Parties agree that in areas where there are existing poles, Wildflower will work with the owner of that existing pole to collocate the DAS 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.


    City Use of New Poles. The Parties understand and agree that 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 Wildflower's use of its Network or Facilities. Wildflower shall reasonably cooperate with the City when using the New Poles.


    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, Wildflower 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.


    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. Wildflower 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 Wildflower; 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 Wildflower seeks reimbursement for a third party either directly or through applicable insurance, the City shall assign to Wildflower any rights the City may have against such third party for such claim.


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


    5% Franchise Fee for all Gross Revenues. In consideration of this Franchise Agreement, Wildflower agrees to remit to the City a franchise fee of five percent (5%) of Gross Revenues ("Franchise Fee"). "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 Wildflower'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. Uncollectible and late charges shall not be included within gross revenues. Wildflower shall pay its Franchise Fee on the 15 th day of the second month following the month in which the Gross Revenue is received.


    DAS Facility Permit Fee. A one-time permit and license fee of $1,000.00 for each DAS Facility installed within the Public Right of Way of the City, up to 125 DAS Facilities shall be paid by Wildflower. After the 125 th 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. Wildflower shall pay the DAS Facility Permit Fee the 15 th day following the month after each DAS Facility is installed within the public ROW.


    Ministerial Application Fees. A one-time application fee to recover the City's costs associated with the review and approval of the installation of each Facility provided that such application fee reimburses the City for its reasonable, actual and verifiable costs of reviewing and approving the application to install the particular Facility. This application fee must be competitively neutral and may not be unreasonable or discriminatory.


    Accounting Matters. Wildflower 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 Wildflower'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 Wildflower to the fullest extent permitted by Law.


    Access to the Facilities.


    Wildflower Access to Facilities for Repair. Wildflower will be given reasonable access to each of the Facilities in the City ROW or City owned property 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, Wildflower 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.


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