§ 10. Miscellaneous provisions.

Latest version.
  • 10.1

    Nonexclusive Use. Wildflower acknowledges that this Agreement does not provide Wildflower with exclusive use of the City's ROW or any municipal facility and that City retains the right to permit other providers of communications services to install equipment or devices in the City's ROW and on municipal facilities.


    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 public 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 Wildflower with those more favorable benefits and terms. The City shall notify Wildflower promptly of the existence of such more favorable benefits and terms and Wildflower shall have the right to receive the more favorable benefits and terms immediately. If requested in writing by Wildflower, the City shall amend this Franchise Agreement to contain the more favorable terms and conditions.


    Most-Favored Municipality. Should Wildflower 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 Wildflower modify this Franchise Agreement to incorporate the same or substantially similar superior benefits.


    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: City of Wichita

    455 N. Main

    Wichita, KS 67202

    Attention: City Clerk

    With a copy to:

    Arline Sokolowski

    Deputy City Attorney

    455 N. Main, 13 th Fl.

    Wichita, KS 67202


    Wildflower: Wildflower Networks, LLC

    102 N. Main Street

    Buhler, KS 67522

    Attention: Daniel Friesen

    With copies to:

    Harvey Sorensen

    Foulston Siefkin

    1551 N. Waterfront Pkwy, Suite 100

    Wichita, KS 67228


    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.


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


    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.


    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.


    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.


    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.


    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.


    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.


    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.


    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.


    Authority to Execute This Agreement. Each person or persons 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 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.


    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.


    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.


    No Abrogation of Legal Responsibilities. The City's execution of this Agreement shall not abrogate, in any way, Wildflower'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.


    Contractual Interpretation. In the interpretation and application of its rights under this Franchise 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.


    Effective Date of Ordinance. This Ordinance shall be effective upon its final passage and publication as required by law.

    IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in the introductory clause.

    City of Wichita, a municipal corporation Wildflower Telecommunications, LLC
    By: ___________
    Carl Brewer - Mayor
    By: ___________
    Name: ___________
    Title: ___________
    By: ___________
    Name: ___________
    City Clerk
    Title: ___________
    By: ___________
    Gary E. Rebenstorf
    City Attorney and Director of Law
    By: ___________
    Name: ___________
    Attorney for Wildflower Telecommunications, LLC