VERIZON WIRELESS (VAW) LLC D/B/A VERIZON WIRELESS ORDINANCE NO. 50-612  


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  • AN ORDINANCE OF THE CITY OF WICHITA, KANSAS, GRANTING TO VERIZON WIRELESS (VAW) LLC D/B/A VERIZON WIRELESS, A DELAWARE LIMITED LIABILITY COMPANY, ITS SUCCESSORS AND ASSIGNS, A CONTRACT FRANCHISE AND MUNICIPAL STRUCTURE USE AGREEMENT AND PRESCRIBING THE TERMS OF SAID GRANT AND RELATING THERETO.

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

    This Contract Franchise and Municipal Structure Use Agreement ("Agreement") is entered into as of 11/21, 2017 ("Effective Date") by and between the City of Wichita, a municipal corporation (the "City"), and Verizon Wireless (VAW) LLC d/b/a Verizon Wireless ("Verizon").

    RECITALS

    A.

    Verizon Wireless (VAW) LLC d/b/a Verizon Wireless is a Wireless Services Provider regulated by the Federal Communications Commission (FCC).

    B.

    Verizon seeks to enter the City's Public Rights-of-Way (the "ROW"), and other real property of the City, to install, maintain and operate certain Equipment, Ground Equipment, and New Poles so that Verizon may provide Telecommunications Services to its customers.

    C.

    Equipment may be located on Municipal Structures, Ground Equipment may be located within the ROW adjacent to third-party utility poles and other structures located within the ROW, and New Poles may be installed in the ROW, as permitted under this Agreement and applicable Laws.

    D.

    Verizon desires to obtain from City, as permitted by law, and City is willing to grant to Verizon, as required by law, the right to access the ROW to locate, place, attach, install, operate, use, control, repair, replace, upgrade, enhance and maintain its Equipment, Ground Equipment, and New Poles in a manner consistent this Agreement.

    In consideration of the Recitals set forth above, the terms and conditions of this Agreement and other valuable consideration, the adequacy of which is hereby acknowledged, the parties agree as follows:

    SECTION 1-A
    DEFINITIONS

    For the purposes of this Agreement the following words and phrases shall have the meaning given herein.

    a.

    "Commenced Installation" shall mean the date that Verizon commences to install its Equipment, or any expansion thereof, in the City's ROW.

    b.

    "Equipment" means the equipment cabinets, antennae, utilities and fiber optic cables, wires, and related equipment, whether referred to singly or collectively, to be installed and operated by Verizon under a particular Supplement and that comprise a Small Cell installation. "Equipment" does not include "Ground Equipment", as defined below.

    c.

    "Ground Equipment" means the equipment cabinets, utilities, and related equipment, whether referred to singly or collectively, to be installed on the ground within the ROW as part of an attachment of a Wireless Facility to a pole or structure owned and/or operated by third parties.

    d.

    "Laws" means any and all laws, regulations, ordinances, resolutions, judicial decisions, rules, permits and approvals applicable to the subject matter of this Agreement. This Agreement does not limit any rights Verizon may have in accordance with Laws to install its own poles in the ROW or to attach Verizon's Wireless Facilities to third-party poles located in the ROW. This Agreement shall in no way limit or waive either party's present or future rights under Laws. If, after the date of this Agreement, the rights or obligations of either party are materially preempted or superseded by changes in Laws, the parties agree to amend this Agreement to reflect the change in Laws.

    e.

    "Municipal Structures" means Poles, lighting fixtures, electroliers, or other structures owned and/or leased by the City and located within the ROW, and may refer to such structures in the singular or plural, as appropriate to the context in which used.

    f.

    "Network" or collectively "Networks" means the telecommunications network operated by Verizon, and located within the Public Rights-of-Way, to serve its customers.

    g.

    "New Pole(s)" means a pole, or other "wireless support structure" as that term is defined in K.S.A. § 66-2019(b)(21) and amendments thereto, owned or operated by Verizon.

    h.

    "Poles" means any utility and/or lighting poles that are owned and/or leased by the City.

    i.

    "Public Rights-of-Way" or "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 easements obtained by utilities or private easements in platted subdivisions or tracts. The term also does not include infrastructure located within the Public Rights-of-Way owned by the City or other third-parties, such as Poles, ducts or conduits.

    j.

    "Small Cell" means the Equipment at a particular location that comprises part of the Network.

    k.

    "Supplement" shall mean each separate agreement, entered into between the City and Verizon with regard to specific Small Cell installations, the form of which shall be in substantially the same form as attached hereto as Exhibit A, which shall be subject to the terms and conditions of this Agreement.

    l.

    "Telecommunications Services" has the same meaning as that term is defined in the United States Code, 47 U.S.C. § 153(53), or any other use authorized by and licensed to Verizon by the FCC, including, without limitation, Wireless Services.

    m.

    "Wireless Facility" or "Wireless Facilities" has the same meaning as that term is defined under K.S.A. § 66-2019(b)(18) and amendments thereto.

    n.

    "Wireless Services" has the same meaning as that term is defined under K.S.A. § 66-2019(b)(19) and amendments thereto.

    o.

    "Wireless Services Provider" means a provider of Wireless Services as defined in K.S.A. § 66-2019(b)(24) and amendments thereto.

    SECTION 1
    INSTALLATION OF THE NETWORK

    1.

    1 Permitted Installation. Verizon may, at Verizon'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 Equipment, Ground Equipment, and New Poles subject to the terms and conditions of this Agreement. Verizon shall undertake and perform any work authorized by this Agreement in a skillful and workmanlike manner.

    1.1.1 Installation Specifications. The installation of Equipment, Ground Equipment, and New Poles shall be made in accordance with plans and specifications as may be approved by the City, such approval not to be unreasonably withheld, conditioned, or delayed, 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, unless applicable Laws require a shorter approval period. The location, depth of the fiber underground in the ROW, and any other requirements, shall be approved in writing by the City prior to construction of Equipment, Ground Equipment or New Poles at each 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 Verizon 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. Verizon shall be responsible for notifying the City immediately upon discovery of such omissions and/or errors and with obtaining any amendments for corrected City-approved permits, as may be necessary. Verizon shall be responsible for all duly enacted and lawfully imposed costs associated with the permitting process, including, but not limited to, repairs and replacement of the affected ROW. Such Permits and approval requirements detailed in this section shall not be unreasonably withheld, conditioned or delayed by the City, and any such conditions or requirements shall be in applicable Laws. Attachment to Municipal Structures must follow the procedures utilized in Section 5.

    1.1.2 Temporary Construction. If the installation of Verizon's Equipment, Ground Equipment, and New Poles will require Verizon to obstruct or otherwise interfere with the portion of the ROW designated for vehicular traffic, then such installation 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.

    1.1.3 Construction Schedule. If requested by the City, at least ten (10) days prior to the installation of Equipment, Ground Equipment, and New Poles, Verizon shall deliver to the City a schedule for the proposed work related to the construction of same, as well as a list of the names of all agents and contractors of Verizon authorized by Verizon to access the City ROW and City owned property on Verizon's behalf.

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

    1.1.5 Inspection by City. The City shall have commercially reasonable access to inspect any work conducted by Verizon during the installation, maintenance and/or repairs of Equipment, Ground Equipment, and New Poles.

    1.1.6 Other Utility Providers. When necessary, Verizon shall coordinate with other utility providers for other needed utility services and, subject to the provisions of Section 4.1, Verizon and the City will reasonably cooperate with the other utility providers regarding the location of any meter, pole, and other apparatuses required for each Small Cell installation.

    1.1.7 Existing Utility Poles. If Verizon attaches a Wireless Facility to an existing utility pole pursuant to a properly executed agreement with the pole owner, 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 Verizon erect a New Pole within an existing aerial pole line absent the City's prior authorization, as determined by the City in accordance with applicable Laws.

    1.2 Compliance with Laws. This Agreement is subject to the terms and conditions of all applicable Laws and the parties shall comply with any such Laws in the exercise of their rights and performance of their obligations under this Agreement.

    1.2.1 Zoning Regulations. Zoning regulations shall not apply to installations of Equipment, Ground Equipment, and New Poles within the ROW.

    1.3 Permits. Verizon shall obtain all necessary ministerial permits required by any appropriate governmental entity, including the City, including, without limitation, any encroachment or building permits (the "Permits"), and shall pay those fees associated therewith relating to the installation of the Network as currently allowed by Law. For each Small Cell (or group of associated Small Cells) installed in the ROW, Verizon will pay to the City a one-time application fee to recover the City's costs associated with the review and approval of the installation of each Small Cell, provided that such application fee is established as the amount necessary to reimburse the City for its reasonable, actual and verifiable costs of reviewing and approving the application to install the particular Small Cell.

    1.3.1 Intentionally Omitted.

    1.3.2 Intentionally Omitted.

    1.3.3 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 Laws.

    1.3.4 Intentionally Omitted.

    1.4 Placement of Equipment, Ground Equipment and New Poles. Verizon shall coordinate the placement of its Equipment, Ground Equipment, and New Poles in the ROW in a manner that minimizes adverse impact on public improvements, as reasonably determined by the City.

    1.4.1 Pole Height. The height of any New Pole (defined in Section 1.5) should not exceed forty (40) feet above ground level unless specifically authorized by the City, or unless otherwise allowed by applicable Laws.

    1.5 New Poles. It is understood that Verizon may build New Poles or other wireless support structures required for the installation of its "wireless facilities" (as that term is defined under K.S.A. § 66-2019(b)(18) and amendments thereto) which would comply with applicable Laws ("New Poles").

    1.5.1 Intentionally Omitted.

    1.5.2 Intentionally Omitted.

    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 and/or property. Verizon shall, after written notice is received by Verizon from the City that any New Pole has been damaged or removed, cause the New Pole to be repaired, removed, and/or replaced within thirty (30) days after the City's written notice is received by Verizon. The cost to repair, remove and/or replace any New Pole shall be paid by Verizon; provided, however, that if the New Pole is damaged or destroyed by the City, then the City shall pay the cost to repair, remove, and/or replace the New Pole. To the extent that Verizon seeks reimbursement for damages caused by a third party, either directly or through applicable insurance, the City shall assign to Verizon any rights the City may have against such third party for such claim.

    1.6 Compensation to the City. Verizon is solely responsible for the payment of all lawful Permit fees and other applicable charges in connection with Verizon's performance under this Agreement. Unless previously paid, within sixty (60) days of the Effective Date, Verizon shall pay to the City a one-time, non-refundable, application fee of Five-Thousand Dollars ($5,000.00) in accordance with Wichita City Code 3.93.260, with said one-time application fee serving as a means to allow the City to recover its reasonable costs associated with the review and administration of this Agreement. This one-time application fee only applies to this Agreement, and is not required for any Supplement, or application for a Supplement, entered into under this Agreement.

    1.6.1 Attachment Fees. As compensation to City for use of the Municipal Structures, Verizon shall, at the commencement of each Supplement Term (as defined in Section 2.2 herein), pay to the City, on an annual basis during the Supplement Term, an attachment fee equal to $100.00 for each attachment of a Small Cell to a Municipal Structure (including all related Equipment placed on the ground near the Municipal Structure) ("Attachment Fee").

    1.6.2 New Pole Fee. Verizon shall pay to the City, on an annual basis during the Agreement Term, upon invoicing by the City in the manner provided for in Section 1.6.5, the amount of $125.00 per year for each New Pole that it installs in the ROW ("New Pole Fee"). Any New Pole Fee shall commence upon the date that the City issues the final Permit required for the construction of the corresponding New Pole.

    1.6.3 ROW Ground Space Fee. As compensation to City for use of the ROW where Verizon is not utilizing Municipal Structures or installing a New Pole, but Verizon requires the placement of Ground Equipment, Verizon shall pay to the City, on an annual basis during the Agreement Term, upon invoicing by the City in the manner provided for in Section 1.6.5, a fee in the amount of $100.00 per third-party pole or other structure upon which Verizon has attached a Small Cell (the "ROW Ground Space Fee"). The amount of the ROW Ground Space Fee is intended to approximate the City's cost to manage access to the ROW and to reflect Verizon's limited use of the ROW for its Ground Equipment. Any ROW Ground Space Fee shall commence upon the date that the City issues the final Permit required for the construction of the corresponding Ground Equipment.

    1.6.4 Payment of Annual Attachment Fees. Verizon shall make the first payment of the annual Attachment Fee under any Supplement within ninety (90) days of the Acknowledgement (as defined in Section 2.2 herein). Thereafter, the annual Attachment Fee shall be paid in advance on or before each annual anniversary of the Commencement Date during the Supplement Term (each as defined in Section 2.2 herein).

    1.6.5 Payment of New Pole Fees and ROW Ground Space Fees. Verizon shall pay the full undisputed amount of any invoice it receives from the City for New Pole Fees and ROW Ground Space Fees within forty-five (45) days after the City delivers the invoice to Verizon, with supporting documentation reasonably necessary to substantiate the amount invoiced.

    1.6.6 Payment Procedures. All Attachment Fees, New Pole Fees, and ROW Ground Space Fees shall be paid by check made payable to City and mailed or delivered to City at the address provided in Section 10.3. The address for the delivery of payments may be changed at any time by City upon 45 days' prior written notice to Verizon. Mailed payments shall be deemed paid upon the date such payment is officially postmarked by the United States Postal Service. Notwithstanding the foregoing, upon agreement by the parties, Verizon may pay any one or more of such fees by electronic funds transfer and, in such event, City agrees to provide to Verizon bank routing information for such purpose.

    1.6.7 Taxes. Verizon 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. Pursuant to Section 79-5(a)(26) of the Kansas Revenue and Taxation Code, the City hereby advises, and Verizon recognizes and understands, that Verizon's use of the City's ROW and Municipal Structures may create a possessory interest subject to real property taxation and that Verizon may be subject to, and responsible for, the payment of real property taxes levied on such interest. Verizon will cooperate with the Sedgwick County Assessor in providing any information necessary for the Assessor to make a property tax determination. Verizon reserves the right to challenge any such assessment, and the City agrees to cooperate with Verizon in connection with any such challenge.

    1.6.8 Fee Documentation. For any party to whom annual Attachment Fees, New Pole Fees, and ROW Ground Space Fees payments are to be made, the City or any successor-in-interest of the City hereby agrees to provide to Verizon (i) a completed, current version of Internal Revenue Service Form W-9, or equivalent; (ii) complete and fully executed state and local withholding forms, if required; and (iii) other documentation to verify the City's or such other party's right to receive payment of such fees as is reasonably requested by Verizon. Such fees shall accrue in accordance with this Agreement, but Verizon shall have no obligation to deliver fee payments until the requested documentation has been received by Verizon. Upon receipt of the requested documentation, Verizon shall deliver the accrued fee payments as directed by the City.

    1.7 Access to the Equipment, Ground Equipment and New Poles.

    1.7.1 Verizon Access to Equipment for Repair. Verizon will be given reasonable access to each of the Municipal Structures and the ROW for the purposes of routine installation, repair, maintenance or removal of its Equipment, Ground Equipment, and New Poles. If any such maintenance activities have the potential to result in an interruption of any City services at the Municipal Structure, Verizon shall provide the City with a minimum of three (3) days prior written notice of such activities. Such activities shall, to the extent feasible, be done with minimal impairment, interruption, or interference to City services. Notwithstanding the forgoing, Verizon shall have reasonable, unfettered 24/7 access to the ROW, 365 days a year.

    1.7.2 City Observation. At City's request, Verizon shall allow a representative of the City to observe any installation, repair, maintenance or removal work performed at the Municipal Structure and/or in the ROW.

    SECTION 2
    TERM AND TERMINATION

    2.1 Term. This Agreement shall be effective as of the Effective Date, as defined in the preamble to this Agreement, and shall continue for ten (10) years thereafter ("Initial Term"). Thereafter, this Agreement shall automatically renew for three (3) additional 5-year terms ("Renewal Terms") unless Verizon notifies the City of its intent to terminate the Agreement at least 90 days prior to the end of the then-current term. The Initial Term and all Renewal Terms shall be collectively referred to herein as the "Agreement Term." In no event shall the City be permitted to terminate Verizon's right under this Agreement, or any Supplement, to place Equipment, Ground Equipment, and New Poles in the ROW unless material terms of the Agreement are breached, and Verizon fails to cure such breach within the applicable cure period. Notwithstanding anything herein, after the expiration or termination of this Agreement, its terms and conditions shall survive and govern with respect to all remaining Ground Equipment and/or New Poles as long as such Ground Equipment and/or New Poles remain in use, until their respective termination.

    2.2 Supplement Term. The initial term for each particular Supplement shall commence the first day of the month following the date Verizon has Commenced Installation of its Equipment at a particular location under a Supplement (the "Commencement Date") and shall be for an initial term of ten (10) years (the "Supplement Initial Term"). The City and Verizon shall acknowledge in writing the Commencement Date (the "Acknowledgment"). Each Supplement shall automatically be extended for three (3) successive five (5) year renewal terms (each, a "Supplement Renewal Term") unless Verizon notifies the City in writing of Verizon's intent not to renew the Supplement at least thirty (30) days prior to the expiration of the then-current term. The Supplement Initial Term and all Supplement Renewal Terms shall be collectively referred to herein as the "Supplement Term." Notwithstanding anything herein, after the expiration or termination of this Agreement, its terms and conditions shall survive and govern with respect to each remaining Supplement in effect until its respective expiration or termination.

    2.3 Extension of Termination Date. In the event the parties are actively negotiating in good faith a new agreement to replace this Agreement, or an amendment to extend the Agreement Term, the parties by written mutual agreement may extend the termination date of this Agreement to allow for further negotiations. Such extension period shall be deemed a continuation of this current Agreement and not as a new agreement.

    2.4 Termination of Use. Notwithstanding Section 2.1 above, Verizon may terminate its use of any or all of the Municipal Structures and/or the ROW by providing written notice to the City in the manner provided in Section 10.3. In the event of any such termination, Verizon's payment obligations to the City shall terminate simultaneously with the specified date of such termination, provided Verizon removes its Equipment, Ground Equipment, and New Poles, and restores the Municipal Structure and/or ROW, as set forth in Section 3, below, and in the Wireless Ordinance, prior to the specified termination date.

    SECTION 3
    REMOVAL AND RELOCATION

    3.1 Removal Due to Public Project. Pursuant to K.S.A. § 66-2019 and amendments thereto, Verizon shall relocate its Equipment, Ground Equipment, and New Poles, at no cost to City, within the time set forth in the City's written request provided that the City provides a minimum of 180 days advance written notice, unless circumstances beyond the City's control require a shorter period of advance notice, whenever the City reasonably determines that the relocation of such Equipment, Ground Equipment, and New Poles are needed for any of the following purposes: (a) due to any work proposed to be done by or on behalf of the City or any other governmental agency, including but not limited to, any change of grade, alignment or width of any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and installation, construction, maintenance or operation of any underground or aboveground facility such as sewers, water mains, drains, storm drains, pipes, gas mains, poles, power lines, telephone lines, cable television lines and tracks; (b) because any part of the Network is interfering with or adversely affecting the proper operation of Poles, traffic signals, or other City facility; or (c) to protect or preserve the public health and safety. The City shall cooperate with Verizon in relocating any Equipment, Ground Equipment, and New Poles removed pursuant to this Section 3.1 in a manner that allows Verizon to continue providing service to its customers, including, but not limited to, expediting approval of any necessary Permits required for the relocation of any Equipment, Ground Equipment, and New Poles relocated under this Section 3.1, and/or placing a temporary communications facility in a location as mutually approved by the parties.

    3.2 Removal Due to Termination. No later than ninety (90) days after termination of this Agreement, or Supplement hereunder, pursuant to the provisions of this Agreement, Verizon shall, at its sole cost and expense, remove the applicable Equipment, Ground Equipment, and New Poles and, if such removal disturbs the Municipal Structure, ROW, and/or City real property, restore each Municipal Structure, ROW, or City real property to its original condition, reasonable wear and tear and damage by casualty excepted, and further excepting landscaping and related irrigation equipment, or other aesthetic improvements made by Verizon to the Municipal Structure, adjacent City ROW, and/or City real property. Alternatively, the City may allow Verizon, 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 Verizon ceases to operate a Small Cell and abandons the Small Cell for a period of ninety (90) consecutive days or more, the Small Cell shall be deemed abandoned after 30 days written notice to Verizon. In the event that Verizon has not reinstated use of the Small Cell, or provided the City with written notice confirming the Small Cell is not abandoned, within said 30-day notice period, Verizon shall, at its sole cost and expense, vacate and remove the abandoned Small Cell within 180 days from the date the Small Cell is deemed abandoned. If such removal disturbs the Municipal Structure, adjacent ROW, and/or City real property, Verizon shall also, at its sole cost and expense, restore the Municipal Structure, ROW or City real property as required by Section 3.2 of this Agreement. Alternatively, the City may allow Verizon, in the City's sole and absolute discretion, to abandon the Small Cell, 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 Verizon are entitled to compensation for any removal and/or relocation of Verizon's Equipment, Ground Equipment, and New Poles due to public projects that may be required under Section 3.1. If relocation is for private benefit, Verizon is not responsible for the cost of the relocation to the extent of such private benefit and Verizon shall not be obligated to commence relocation until receipt of funds for such relocation. Verizon acknowledges that Verizon is not entitled to relocation assistance or any other compensation or benefits under the Uniform Relocation Assistance Act or any other applicable provision of law upon termination of this Agreement.

    SECTION 4
    POWER, MAINTENANCE AND REPAIR

    4.1 Power. Verizon's power consumption may be metered, sub-metered, or unmetered at any specific Municipal Structure site as mutually determined by the parties in consideration of the requirements of the local utility provider for each Municipal Structure site.

    4.1.1 Metered Service. If Verizon's power consumption is metered or sub-metered and billed directly by the utility to Verizon, Verizon shall pay the utility directly for its power consumption. If not billed directly by the utility, all invoices for power consumption shall be sent by the City to Verizon at M/S 3846, P.O. Box 2375, Spokane, WA 99210-2375, or sent by electronic delivery by email to livebills@ecova.com, or such other physical or email address as directed by Verizon in writing, and Verizon shall pay the City within thirty (30) days after receipt of such invoice. Such invoices shall be delivered to Verizon no less frequently than annually, and shall indicate the usage amount upon which the invoice is based and the method used for determining the usage (whether based on an actual sub-meter readings or an average consumption if unmetered). All invoices for power consumption shall be sent by the City to Verizon within ninety (90) days following the conclusion of the calendar year (the "Invoice Period") in which the utility provider's invoices for power consumption were received by the City, and shall be accompanied by copies of such invoices, documentation of the sub-meter readings, or the City's determination of Verizon's average consumption for such calendar year. If the City fails to deliver an invoice for power consumption, with the required supporting documentation, to Verizon within the Invoice Period for any Supplement, the City waives any right to collect any payment from Verizon for such costs for the calendar year at issue.

    4.1.2 Unmetered Service. In the event that Verizon's power consumption for a particular Municipal Structure site cannot be metered or sub-metered, the charges for such power consumption shall be addressed in the applicable Supplement.

    4.1.3 Back Up Power. Verizon shall be permitted at any time during the Agreement Term or the applicable Supplement Term, to install, maintain and/or provide access to and use of, as necessary (during any power interruption at any Municipal Structure site, Ground Equipment site, or New Pole sites), a temporary emergency power source, and all related appurtenances within or adjacent to such site to the extent the City has the authority to permit the installation of a temporary emergency power source. Such temporary emergency power installation and power sources shall be in compliance with all applicable Laws. Notwithstanding the foregoing, no interruption or discontinuance of such electrical power will render the City liable to Verizon for damages or relieve Verizon of any of its obligations hereunder, except to the extent it results from the negligence or willful misconduct of the City.

    4.2 Maintenance and Repair. Verizon shall, at Verizon's sole cost and expense, perform all maintenance and repairs reasonably needed to maintain its Small Cells in good condition and neat and orderly appearance, and in compliance with all applicable Laws. In the event any part of a Small Cell requires replacement because such part cannot be repaired, Verizon shall, at Verizon's sole cost and expense, replace the irreparable part of its Small Cell. Verizon shall not cause rubbish, garbage or debris on or around its Network or the Small Cells and shall not permit any rubbish, garbage or debris to accumulate on or around in any enclosed areas around the Small Cells. If the City gives Verizon written notice of a failure by Verizon to maintain its Small Cells, Verizon shall use commercially reasonable efforts to remedy such failure within forty-eight (48) hours after receipt of such written notice.

    4.3 Appearance. Verizon shall reasonably cooperate with the City on all issues of aesthetics and appearance. Verizon shall follow all legally binding City policies, state and local ordinances with respect to aesthetics. This includes, but is not limited to, historic site and/or locations of significant importance, in areas such as Downtown, Old Town and College Hill.

    4.4 Repair of ROW. Verizon shall be responsible for any damage, ordinary wear and tear and damage by casualty excepted, to street pavement, existing facilities and utilities, curbs, gutters, sidewalks, landscaping, and all other public or private facilities, to the extent caused by Verizon's construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of its Small Cells in the City's ROW. The City's pavement cut contractor shall promptly repair such damage and return the City's ROW to a safe and satisfactory condition in accordance with the City's applicable street restoration standards. The City shall charge Verizon for the actual costs incurred by the City in performing such repair work. Upon the receipt of a demand for payment by the City, Verizon shall, within thirty (30) days of such receipt, reimburse the City for such costs. Verizon shall promptly repair any damage to property adjacent to the ROW, to the extent caused by Verizon's construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of its Small Cells in the City's ROW, to the reasonable satisfaction of the City or adjacent property owner, as applicable. Verizon's obligations under this Section 4.4 shall survive for 45 days past the completion of such reparation and restoration work and return of the affected part of the City's ROW by Verizon to the City.

    4.5 Bond. Verizon shall, prior to the commencement of any work under this Agreement, deliver to the City a performance bond in the amount of $50,000, payable to the City to ensure the appropriate and timely performance in the installation, removal, relocation, maintenance, and repair of Equipment, Ground Equipment, and New Poles located in the ROW. The required performance bond must be with good and sufficient sureties, issued by a surety company authorized to transact business in the State of Kansas, and reasonably satisfactory to the City Attorney in form and substance.

    SECTION 5
    ATTACHMENT TO
    MUNICIPAL STRUCTURES

    5.1 Verizon will submit to the authorized representative of the City a proposed design for all proposed Equipment installations on Municipal Structures that will include the Equipment and Municipal Structures Verizon proposes to use. All approved Equipment installations shall be included as part of the applicable Supplement.

    (a)

    In addition to attachments to Municipal Structures in the manner provided for under this Agreement, Verizon may, in its sole discretion, install its Wireless Facilities on other poles in the ROW that are lawfully owned and operated by third-parties, pursuant to an agreement with any such third-parties, or on its New Poles that are installed pursuant to the requirements of applicable Laws.

    (b)

    Subject to the requirements, conditions and approvals required by this Agreement and applicable Laws, the City hereby authorizes, consents, and permits Verizon to enter upon the ROW and to locate, place, attach, install, operate, maintain, control, remove, reattach, reinstall, relocate, and replace Equipment in or on identified Municipal Structures (including, at Verizon's sole discretion, in or on its New Poles or other structures, or poles or other wireless support structures owned by third-parties) for the purposes of operating the Equipment and providing Telecommunications Services.

    (c)

    To reduce the disruption to Municipal Structures, Verizon may power its Equipment by using the power sources that service the existing Municipal Structure and its components. The power used by Verizon's Equipment shall be determined on an individual site-by-site basis. All electrical work and installations related to the power sharing authorized by this Subsection 5.1(c) shall be performed by a licensed contractor that is approved by the City, and in a manner that is approved by the City. Verizon shall make all requests for power sharing arrangements pursuant to this Subsection 5.1(c) in advance and in writing. Verizon shall reimburse the City, as provided in Section 4.1.2, for the increased power costs that the City incurs as a result of any power sharing authorized by this Subsection 5.1(c).

    (d)

    An application for the attachment of Equipment to Municipal Structures may only be denied for reasons reasonably related to capacity, safety, reliability or engineering concerns, or if the proposed attachment would violate applicable Laws of general applicability related to building codes, electrical codes, or related standards, or the requirements of this Agreement. Except as otherwise provided for by applicable Laws, no denial shall be based upon the size, quantity, shape, color, weight, configuration, or other physical properties of Verizon's Equipment, except that Equipment must conform as closely as practicable with the design and color of the Municipal Structure. The City shall document the basis for any denial, including the specific provisions of the Laws on which the denial was based (if applicable), and send the documentation to the Verizon on or before the day that it denies an application. Verizon may cure any deficiencies identified by the City and resubmit an application with thirty (30) days of the date of any denial without paying an additional application fee. The City shall approve or deny any resubmitted application within the earliest timeframe prescribed by applicable Laws.

    (e)

    If Verizon selects a Municipal Structure that is structurally inadequate to accommodate Equipment, Verizon may at its sole cost and expense replace the Municipal Structure (a "Replacement Structure") with one that is acceptable to and approved by the City and dedicate such Replacement Structure to the City.

    (f)

    Verizon shall install both remote and manual shut-off switches at each Municipal Structure on which it has installed Equipment such that the applicable Equipment at such Municipal Structure can be safely and immediately powered off by City's personnel when necessary. In the event of an emergency or to protect the public health or safety, prior to the City accessing or performing any work on a Municipal Structure on which Verizon has installed Equipment, the City may require Verizon to deactivate or power down such Equipment if any of the City's employees or agents must move closer to the Equipment than the recommended one foot minimum distance. In such case, the City will contact Verizon at the contact telephone number referenced in Section 9.3 herein to request the Equipment be powered down or deactivated. If Verizon fails to power down or deactivate the Equipment, the City's personnel may utilize the manual shut off switch to power off Verizon's Equipment, provided such personnel immediately notify Verizon at the contact telephone number referenced in Section 9.3 herein.

    SECTION 6
    INDEMNIFICATION

    6.1 Indemnity. Subject to Section 7 of this Agreement, Verizon shall indemnify, defend, and hold harmless the City, its councilmembers, 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 Verizon pursuant to this Agreement, except to the extent resulting from or caused by the negligence or willful misconduct of the City, its council members, officers, employees, agents, or contractors. The City shall promptly notify Verizon, in writing, of any claim, action or proceeding covered by this Section 6.1.

    6.2 Limitation of Liability. Except for indemnification pursuant to Section 6.1 above, or a violation of law, neither party shall be liable to the other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.

    SECTION 7
    INSURANCE

    7.1 Commercial General Liability. Verizon shall obtain and maintain, at all times during the term of this Agreement, Commercial General Liability insurance with a limit of $1,000,000 per occurrence for bodily injury (including death) and property damage and $2,000,000 general aggregate including premises-operations, contractual liability, personal injury and products completed operations; and Commercial Automobile Liability insurance covering all owned non-owned and hired vehicles with a limit of $1,000,000 each accident for bodily injury and property damage. The Commercial General Liability insurance policy shall include the City, its councilmembers, officers, and employees as additional insured as their interests may appear under this Agreement as respects any covered liability arising out of Verizon's performance of work under this Agreement. Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein. Upon receipt of notice from its insurer, Verizon shall use commercially reasonable efforts to provide the City with thirty (30) days prior written notice of cancellation. Verizon shall be responsible for notifying the City of such change or cancellation.

    7.2 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Agreement, Verizon shall file with the City the required certificate(s) of insurance with blanket additional insured endorsements, which shall state the following:

    (a)

    the policy number; name of insurance company; name and address of the agent or authorized representative; name and address of insured; project name; policy expiration date; and specific coverage amounts;

    (b)

    that Verizon's Commercial General Liability insurance policy is primary as respects any other valid or collectible insurance that the City may possess, including any self-insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance; and

    (c)

    that Verizon's Commercial General Liability insurance policy waives any right of recovery the insurance company may have against the City.

    The certificate(s) of insurance with endorsements and notices shall be mailed to the City at the address specified in Section 10.3 below.

    7.3 Workers' Compensation Insurance. Verizon shall obtain and maintain at all times during the term of this Agreement statutory workers' compensation and employer's liability insurance in an amount of One Million Dollars ($1,000,000) each accident/disease/policy limit and shall furnish the City with a certificate showing proof of such coverage.

    7.4 Insurer Criteria. Any insurance provider of Verizon shall be authorized or permitted to do business in the State of Kansas and shall carry a minimum rating assigned by A.M. Best & Company's Key Rating Guide of "A-" Overall and a Financial Size Category of "VII."

    (a)

    Severability of Interest. "Severability of interest" or "separation of insureds" clauses shall be made a part of the Commercial General Liability and Commercial Automobile Liability policies.

    SECTION 8
    DEFAULT

    8.1 Default.

    8.1.1 Defined. A "Default" shall be deemed to have occurred under this Agreement, or any Supplement hereunder, if a party fails to cure a breach of any condition or obligation imposed hereunder 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 thirty (30) day 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 6.2 (Limitation of Liability), terminate this Agreement, or any Supplement hereunder, 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; provided, however, that if a Default by Verizon relates to one or more Small Cells, but not the entire Network, then the City's remedies under Section 8.1.2 shall be limited to the specific Supplement(s) covering such Small Cells, and if a Default by Verizon relates to one or more locations in the ROW occupied by Ground Equipment and/or New Poles, but not the entire Network, then the City's remedies under Section 8.1.2 shall be limited to the ROW locations permitted by the City for such Ground Equipment and/or New Poles.

    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, or any Supplement hereunder, 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 Verizon's Equipment, Ground Equipment, and New Poles from the Public Right-of-Way, or (ii) if Verizon's FCC licenses required for the operation of its Network are terminated, revoked, expired, or otherwise abandoned, and Verizon has not commenced actions to seek the reinstatement or replacement of such FCC licenses. Such termination rights shall be subject to Verizon'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 the City does not receive payment for any amount owed under this Agreement within forty-five (45) days after it delivers written notice of non-payment to Verizon, Verizon shall pay interest to the City, at an annual rate of ten percent (10%), on the amount due.

    SECTION 9
    INTERFERENCE

    9.1 Non-Interference with Non-Public Safety Communications Systems. Verizon shall operate its Equipment in a manner that will not cause harmful interference which is measurable in accordance with the then-existing industry standards to any City non-public safety communications systems, or to the communications facilities of other licensees or lessees of City property located at or near the Equipment that were in operation prior to the installation of such Equipment, or that are in operation prior to any modifications Verizon may make to such Equipment. The City agrees that after Verizon has attached Equipment to a specific Municipal Structure, the City and/or any other tenants, licensees, or Municipal Structure users who currently have or in the future take possession of space on the same Municipal Structure will be permitted to install only such equipment that is of the type and frequency which will not cause harmful interference which is measurable in accordance with then-existing industry standards to the then-existing Equipment of Verizon.

    9.2 Non-Interference with Public Safety Communications Systems. Verizon's Equipment 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 Verizon's Equipment cause interference with the City's use of its streetlights, traffic lights, and/or stand-alone light poles.

    9.3 Correction of Interference. If interference as described in Sections 9.1 and 9.2 occurs, and after the City has notified Verizon of such interference by a written communication and a call to Verizon's Network Operations Center ("NOC") (at (800) 264-6620/(800) 621-2622), Verizon will take all commercially reasonable steps necessary to correct and eliminate the interference including, but not limited to, at Verizon's option, powering down the Equipment causing the interference and later powering up such Equipment for intermittent testing. With regard to interference with public safety communications systems operated by the City or any other public agency, if Verizon is unable or refuses to eliminate such interference within 30 days of notice to Verizon's NOC (or such shorter time as may be specified in the written notice in the event of an emergency or danger to public health and safety requiring such shorter notice), the City may terminate Verizon's use of or right to use the Municipal Structure upon which such interfering Equipment is located, and Verizon shall promptly remove the Equipment from the Municipal Structure.

    SECTION 10
    MISCELLANEOUS PROVISIONS

    10.1 Nonexclusive Use. Verizon acknowledges that this Agreement does not provide Verizon with exclusive use of the City's ROW or any Municipal Structures 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 Structures.

    10.2 Intentionally Omitted.

    10.3 Notices. All notices which shall or may be given pursuant to this Agreement or any Supplement 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 :
    Jennifer Magana
    City Attorney
    455 N. Main, 13th Fl.
    Wichita, KS 67202
    jmagana@wichita.gov
    Verizon: Verizon Wireless (VAW) LLC
    d/b/a Verizon Wireless
    Attn: Network Real Estate
    180 Washington Valley Road
    Bedminster, New Jersey 07921

     

    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) 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) days after the date of deposit in a designated overnight delivery mailbox or other like facility.

    10.4 Sublease/Assignment. This Agreement may be assigned by Verizon without any approval or consent of the City to Verizon's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of Verizon's assets in the market defined by the FCC in which the ROW is located by reason of a merger, acquisition or other business reorganization; provided, however, that such assignee is bound by all of the terms and conditions of this Agreement. As to other parties, this Agreement may not be sold or assigned by Verizon without the written consent of the City, which shall not be unreasonably withheld, conditioned or delayed. In the event of any transfer or assignment of this Agreement, Verizon shall timely notify the City of the successor entity, provide an emergency point of contact for the successor entity, and advise the City of the effective date of the transfer or assignment. If Verizon assigns or sublets any interest in its Equipment, Ground Equipment, and New Poles, whether or not the City's consent is required, Verizon will provide notice of the transfer within a reasonable time.

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

    10.6 Entire Agreement; Modification; Waiver. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof. All prior and contemporaneous agreements, representations, negotiations, and understandings of the parties, oral or written, relating to the subject matter hereof are merged into and superseded by this Agreement. Any modification 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.

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

    10.8 Governing Law. This Agreement shall be interpreted and enforced according to, and the parties' rights and obligations governed by, the 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, Kansas, or the state courts located in Sedgwick County, Kansas.

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

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

    10.11 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.

    10.12 Intentionally Omitted.

    10.13 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.

    10.14 No Warranty by the City. The City makes no representations or warranties regarding the suitability, condition or fitness of the Municipal Structures for the installation, maintenance or use of the Small Cells.

    10.15 Agreement Applicable Only to the Municipal Structures. This Agreement shall not be construed to permit the construction, installation, maintenance or use of Equipment on any property other than the Municipal Structures, except as explicitly provided herein.

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

    10.17 Contractual Interpretation. In the interpretation and application of its rights under this Agreement, the City will act in a reasonable, non-discriminatory, and competitively neutral manner in compliance with all applicable federal, state, and local laws and regulations.

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

    10.19 Public Records. Verizon acknowledges that information submitted to the City may be open to public inspection and disclosure under the provisions of Kansas' Open Records Act, codified at K.S.A. § 45-215 through § 45-223. Verizon may identify information, such as trade secrets, proprietary financial records, customer information or technical information, submitted to the City as confidential. Verizon shall prominently mark any information for which it claims confidentiality with the word "Confidential" on each page of such information prior to submitting such information to the City. The City shall treat any information so marked as confidential until the City receives any request for disclosure of such information. The City shall provide Verizon with written notice of the request, including a copy of the request, to Verizon at Verizon Wireless - West Territory, Attention: Real Estate Manager, 10740 Nall Ave., Suite 400, Overland Park, Kansas 66211, within three (3) working days of receiving the request. Verizon shall then provide a written response to the City within three (3) working days, by either authorizing the disclosure or advising of its election to seek a protective order. If Verizon chooses to seek an appropriate protective order, the City will refrain from disclosing such information (unless legally compelled to do so) until the request for a protective order is resolved, and will then comply with any validly-issued protective order. The City retains the final discretion to determine whether to release the requested confidential information, in accordance with applicable Laws.

    [Signatures Begin on Following Page]

    EXECUTED to be effective as of the last date shown below.

    CITY:

    City of Wichita, Kansas

    By:  /s/ Jeff Longwell  

    Name: Jeff Longwell

    Title: Mayor

    Date: 11-21-17

    [City Seal]

    Approved as to Form

    By:  /s/ Jennifer Magaña  
       City Attorney

    Date: 11-6-2017

    GRANTEE:

    Verizon Wireless (VAW) LLC
    d/b/a Verizon Wireless

    By:  /s/ Rick Goldschmidt  

    Name: Rick Goldschmidt

    Title: Director Network Field Engineering

    Date: 10/20/17

    EXHIBIT A

    FORM OF SUPPLEMENT (FOR ATTACHMENT TO MUNICIPAL STRUCTURES)

    SUPPLEMENT

    This Supplement ("Supplement"), made this 21 st day of Nov., 2017 ("Supplement Effective Date") between the City of Wichita, a political subdivision of the State of Kansas, hereinafter designated "City", and Verizon Wireless (VAW) LLC d/b/a Verizon Wireless, with its principal offices at c/o Verizon Wireless, One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920, hereinafter designated "Verizon":

    1.  Supplement . This is a Supplement as referenced in that certain Contract Franchise and Municipal Structure Use Agreement between City and Verizon, dated ______________, ____ ("Agreement"). All of the terms and conditions of the Agreement are incorporated hereby by reference and made a part hereof without the necessity of repeating or attaching the Agreement. In the event of a contradiction, modification or inconsistency between the terms of the Agreement and this Supplement, the terms of this Supplement shall govern. Capitalized terms used in this Supplement shall have the same meaning described for them in the Agreement, unless otherwise indicated herein.

    2.  Project Description and Locations . Verizon shall have the right to install, construct, operate, repair and replace one or more Small Cells on the Municipal Structures in the ROW as further described in Attachment 1 attached hereto.

    3.  Equipment . The Small Cells to be installed on the Municipal Structures are described in Attachment 1 attached hereto.

    4.  Term . The Supplement Term of this Supplement shall be as set forth in Section 2.2 of the Agreement.

    5.  Commencement Date . The first day of the month following the date Verizon has Commenced Installation of its Equipment on the Municipal Structures, as evidenced by the Acknowledgement required under Section 2.2 of the Agreement.

    6.  Fees . The annual Attachment Fees for the Supplement Term shall be $100.00 per Equipment, or group of associated Equipment, as determined in accordance with Section 1.6.1 of the Agreement.

    7.  Power Consumption . [Verizon's power consumption for its Equipment shall be metered or sub-metered and billed to Verizon as provided in Section 4.1 of the Agreement.]

    [City and Verizon acknowledge that power consumption for the Equipment sites covered by this Supplement cannot be metered or sub-metered, and that Verizon will power the Equipment using power sources that service the Municipal Structures. Verizon shall pay the City for the increased power costs at a rate of $_____ per Equipment, per year (the "Power Charge"). The annual Power Charge shall commence and be payable concurrently with the Annual Attachment Fee payable pursuant to Section 6 of this Supplement.]

    8.  Approvals/Fiber . It is understood and agreed that Verizon's ability to use the Municipal Structures is contingent upon its obtaining all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or Local authorities, as well as satisfactory fiber optic cable and electrical connections which will permit Verizon's use of the Municipal Structures as set forth above. In the event that (i) any of such applications for such Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued to Verizon is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority; (iii) Verizon determines that any of such Governmental Approvals may not be obtained in a timely manner; (iv) Verizon determines that it will be unable to obtain in a satisfactory manner, or maintain any fiber or power connection; or (v) Verizon determines that one or more of the Municipal Structures is no longer technically compatible for its use, Verizon shall have the right to: (1) terminate this Supplement; or (2) terminate the applicable Small Cells sites under this Supplement. Notice of Verizon's exercise of its right to terminate shall be given to the City in writing as required by Section 10.3 of the Agreement, and shall be effective upon the mailing of such notice by Verizon, or upon such later date as designated by the City. All fees paid to said termination date shall be retained by the City. Upon termination of the Supplement in its entirety, this Supplement shall be of no further force or effect except to the extent of the representations, warranties and indemnities made by each party to the other hereunder. Otherwise, Verizon shall have no further obligations for the payment of fees to the City.

    9.  Miscellaneous . [to be deleted if not applicable]

    [Signature Page Follows]

    EXECUTED to be effective as of the last date shown below.

    CITY:

    City of Wichita, Kansas

    By:  /s/ Jeff Longwell    

    Name: Jeff Longwell

    Title: Mayor

    Date: 11-21-17

    VERIZON:

    Verizon Wireless (VAW) LLC
    d/b/a Verizon Wireless

    By:_________________________

    Name:______________________

    Title:_______________________

    Date:_______________________

(Ord. No. 50-612, 11-21-17)