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2018-28RESOLUTION 2018-28 COUNCIL MEMBER ANDERSEN INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS, Nebraska Telcom, LLC, has requested permission of the City of Blair for the installation, construction and maintenance of buried and non -buried fiber optic cable within the City of Blair right -of- ways, and WHEREAS, pursuant to Nebraska Revised Statutes, Section 86-704 and Chapter 8 of the Blair Municipal Code, Nebraska Telcom, LLC, requests permission from the City of Blair for a permit to install the aforementioned fiber optic cable in City of Blair right-of-ways; WHEREAS, the fiber optic network will be owned, operated and maintained by Nebraska Telcom, LLC, and its affiliates, will be responsible for all costs associated with relocation of the fiber optic cable at the request of the City of Blair if the fiber network conflicts with City of Blair projects within the City of Blair right-of-ways and will comply with all requested calls for locates; WHEREAS, a Permit Agreement between the City of Blair, Nebraska, and Nebraska Telcom, LLC has been prepared and presented to the City Council, a copy of which Agreement is attached hereto, marked Exhibit "A" and by this reference made a part hereof, and WHEREAS, the terms and conditions thereof are acceptable to the municipality. NOW, THEREFORE, BE IT RESOLVED that said Agreement referred to hereinabove is hereby adopted and accepted by the City of Blair and the Mayor and City Clerk are hereby authorized and directed to execute same on behalf of the municipality. COUNCIL MEMBER ANDERSEN MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER JENSEN. UPON ROLL CALL, COUNCIL MEMBERS SHEPARD, STEWART, HANSEN, WILLIS, WOLFF, ANDERSEN, JENSEN AND HALL VOTING "AYE", AND COUNCIL MEMBERS NONE VOTING "NAY", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 23rd DAY OF OCTOBER, 2018. CITY OF BLAIR, NEBRASKA BY JA REALPH, MA R ATTEST: BRENDAWHEELER, CITY CLERK (SEAL) STATE OF NEBRASKA ) ) :ss: WASHINGTON COUNTY ) BRENDA WHEELER, hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and adopted at a regular meeting of the Mayor and City Council of said City held on the 23rd day of October, 2018. 1 BRENDA WHEELER, CITY CLERK NONEXCLUSIVE TELECOMMUNICATIONS FRANCIIISE AGREEMENT THIS NONEXCLUSIVE TELECOMMUNICA'T'IONS 'FRANCHISE AGREEMENT is entered. into this 23 day of 6c 66 er 20 Ig, by And between the City of Blair, Nebraska, a municipal corporation. of the State of Nebraska (the "City" or "Franchisor"), and- Cox nd Cox Nebraska Telcom� LLC (the "Franchisee"); Each of City and Franchisee may be referred to herein Individually as a "Party" and collectively as the "Parties." WHEREAS, Cox Nebraska. Telconi, LLC has requested the nonexclusive right to. use aird occupy the City's streets and Public Rights -of -Way (as hereinafter defined) at its own risk for the purposes of constructing, installing; and maintaining. facilities for telecommunication services within die City; 'and WHEREAS, the Public. Rights -of -Way are a valuable public resource that have required and will continue to require substantial investment by the City; and WHEREAS, the City has the authority to grant Franchises.and other authorizations for the use and.occupancy of the Public Rights -of -Way and to regulate the use -and occupancy of the same so as to minimize inconvenience and disruption to the public, provide for the orderly and efficient use of the Public Rights -of -Way now and in the future, to preserve adequate capacity for existing and future uses 'of the Public Rights -of -Way, and. to obtain fair and reasonable compensation for the use of the Public Rights.,�of Way; and, WHEREAS, the City is agreeable io allowing Cox Nebraska Telcom, LLC and its affiliates to use the City's streets and Public Rights -of -Way, subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, the City hereby grants the Franchise to Franchisee subject to the following terns and conditions: SECTION 1; DEFINITIONS The following terms, as used in this Agreement, have the following meanings, with all terms defined in the singular to have the correldtive meaning when used in the plural and vice versa; 1.1 "Telecommunication" shall have the meaning given to it in the Nebraska Revised Statutes, Chapter 86, 1.2 "Agreement" means this Nonexclusive Toled orh nunications Franchise Agreen*nt. 1.3 "Cable Services" means "cable services" as defined in Section 602(6) of the Communications Act of 1934, as anxencled by. the Cable Communications. Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, and as maybe. further amended from time to time (the "Cable Act"). 1.4 "City" means the City of Blair, Nebraska. 1.5 "City, Code" means the Code of the City of Blair,. Nebraska, 2013, as amended, and as it may be.further amended from time to time. 1.6 "Law of Nebraska" means the Nebraska Revised. Statutes,. as amended, and, as it may be further amended from time to tine. 1.7 "Communications Act".means the Communications Act of 1934, as amended by the Cable, Communications Policy Act of 1984, the. Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, and as it may be further amended from time to time... 1.8 "Construction" means the installation, construction, relocation; removal; and material expansion of any Facilities. 1.9 "Director" shall mean the director of the City's Department of Public Works or the. Director's designee. 1.10 "Effective Date" means OC106--6 23 , 20 (9, 1.11 '`Emergency" means a sudden or unexpected occurrence involving a clear 'and imminent danger; demanding immediate action to prevent or mitigate loss of, or damage to, life; health, property, or essential telecommunicatiotis services: 1.12 "Facilities" means the tangible cornpo6ents of the Telecommunications System, including without limitation all cables, optical fiber, lines, wires, conduit, access manholes, switches, pedestals, boxes and other similar equipment and devices that are placed or maintained by the Franchisee within the Public Rights -o -r Ajay in accordance with permits issued by the City and used for purposes permitted by this Agreement, 1.1.3 "FCC" or "Federal Communications Comi-nission" means the Federal administrative agency, or lawful successor, authorized to regulate and oversee telCCOM lunications carriers, services and providers on.a national level 1,14 "Franchise" means the non-exclusive and revocable authorization granted pursuant to this Agreement to occupy and use the Public Rightsrof-W4y. 1.15 "Franchisee" means Cox Nebraska Telcom, LLC a Delaware limited liability company, and its lawful successors, transferees, affiliates and assigns.. 1,16 "Franchise Area" means the portion of the Public Rights -of -Way generally depicted on Exhibit A attached hereto and that may be amended fi•otn time to time. 1.17 "Maintenance" shall mean the rnaintenance,- repair, replacement (including upgrades and non -material expansion) and removal of Facilities. 1.18 "Person" role art individual, corporation, partnership, association, trust or any other entity or organization, including a governmental or political subdivision, including the City, or an agency or instrumentality thereof 1.19 "Place and Maintain" oil "Placement and Maintenance" means to place, install, construct; maintain, locate, move, operate, protect, reconstruct; reinstall, repair; relocate, replace. or remove Facilities in connection with the Telecommunications system.. 1.20 "PROW Use. Fee" means the, Public Rights -of -Way Use Fee as defined by Nebraska Revised Statute, §86-704 , or its successor provision as the same may be amended or recodified from time to time. 121 "Public Riglits-of-Way" means the surface and area across, in, over, along, upon, and below the surface of the public highways, roads, streets, avenues, lanes, alleys, curbs, sidewalks, bridges, courts, viaducts, overpasses; underpasses, or other real property, including unimproved surfaces, now or hereafter owned by or under the jurisdiction and control of the City for the purpose of public- travel, communications, alarm, street lighting., power distribution, water or sewer service or other public use, whether present or future, to the extent of the City's right, title,, interest or authority to grant a franchise to occupy and use such areas, The term Public Rights -of Way excludes private property and private casements. Public Rights -of -Way does not include the airways above a right-of-way used for broadcast, cellular mobile radio service, satellite or other wireless services. 1.22 "Public Works Project" or "Public Improvements" include, without limitation, the erection, construction, realignment, paving or repaving, reconstruction, repair, upgrade, replacement; installation, maintenance, removal, widening, or other related work on any public street or Public Rights -of -Way, the construction, maintenance, or recpiistruction of any water, sanitary sewer, storm sewer, force main,. drainage or communications facility of the City, or any other improvement to public property of any kind or nature performed by or on behalf of the City of Blair or other governinental entity: 1,23 "Structures" includes buildings, signs, fences, tanks, poles, lines, fixtures, facilities, and any other tangible property or appurtenances of the City. 1.24 "Telecommunications Services" means the providing or offering for rent, sale o.• lease, or in exchange for other value received, the transmittal of signals, including but not limited to, voice, data, image, irrformatiori, services, graphic or video or other progranirning hiformation, except cable television service,. between or among points by wire; lines, cable, fiber optics, circuits, laser or infrared, microwave, radio, satellite or other telecpmrnunications facilities. The term "Telecommunicatioils Services" shall not include Cable Services. 1.25 "Telecominunicatiorrs System" means the Facilities, real property (including interests in real property), and all other tangible and intangible. personal property, of Franchisee located in, on, over or under the Public Rights -of --Way, 1.26 "Term." has the meaning.set forth in this Agreement. SECTION 2, GRANT OF AUTHORITY 2,1 Grant of Franchise: Subject to the terms and conditions of this Agreement and all applicable provisions of federal, state, and local law, the City hereby grants to the Franchisee the, non-exclusive right to Place and Maintain Facilities within the Franchise Area for the sole purpose of providing Telecommunications Services. The Franchise does not grant authority to the Franchisee to Place and Maintain Facilities on private property. Franchisee shall be solely responsible for obtaining any consents from State agencies or private parties to the extent that its operations effect state or private property. Except as may be required by state or federal law, the Franchisee acknowledges that it is not authorized to sub -franchise, lease, sublease,. assign, or otherwise allow any Person the right to Place and Maintain Facilities in the Public Rights -of -Way or to otherWise use the sante for any purpose. 2.2 Scope of Franchise. The Franchise authorizes the Franchisee to Place and Maintain a Telecommunications System as necessary to provide Telecommunications Services and data services. This Franchise does not grant authority to, the Franchisee to provide Cable Service or any other category of service within the City. Franchisee shall Have the right to provide additional communications services (in addition to Telecommunications Services but not including Cable Services), provided that the City reserves the right, in its sole discretion, to require a separate authorization for any such other services, to the extent consistent with state and federal law. The use of the Public Rights -of Way by the Franchisee for any other purpose is strictly prohibited. 2.3 Nonexclusive Franchise.. Nothing in this Agreement affects the right of the City to grant any other Person a Franchise to occupy and use the Public Rights -of -Way for the purpose of providing,. Telecommunications Services, or to engage in any other activity in the Public Rights -of -Way. 2A Right of City to Use. Public Rights -Of --W U, Nothing in this Agreement affects the might of the City to occupy or use the Public Rights -of -Way iii any fashion. 2.5 Use of City Structures. This Franchise. does not grant to the Franchisee the right to use City -owned Structures. The terms and conditions of the Franchisee's use of any City -owned_ Structure shall be set forth in a separate ordinance, agreement, lease or other document, as appropriate. SECTION 3; TEAM 3.1 Term of Franchise. The term of the Franchise commences on the Effective Date and shall expire ten (10) years from the Effective Date (the "Expiration Date" ), unless the Franchise is otherwise terminated by mutual agreement or as provided in this Agreement. The period of time that the Franchise is in effect is referred to as the "Term," Provided that the Franchisee is not then in default under the terms of this Agreement, the Franchisee may submit a written request to enter into a new Agreement at least six (6). months in advance of the Expiration Date; however, .any such new agreement will be subject to City Council approval. 3.2 Removal of Facilities. Upon the termination or expiration of this Agreement or if any portion of the Franchisee's Facilities is abandoned, Franchisee shall remove its Facilities at its own expense; provided, however, that if the City directs Franchisee in writing, the Franchisee may abandon some or all of the Facilities in place, and such Facilities shall become the property of the City upon their abandonment. If Franchisee fails to remove its Facilities within thirty (30) days after abandonment or termination, except those Facilities abandoned in place at the direction of; or with the. consent of, the City, the City may cause such Facilities to be removed, without furtIYer notice, and charge the cost of removal to the Franchisee, which shall pay such costs within thirty (30) days of the demand to do so. The City may collect -.such costs, expenses and attorneys' fees as debts owed to the City by bringing action in any court of competent jurisdiction. The City may also place a lien on the Franchisee's property in an amount equal to all such costs; expenses, and legal fees associated with collection efforts. SECTION 4: COMPLIANCE WITH ALL LAWS 4.1 Compliance with Daws. Franchisee shall at all time during. the Term of this Agreement comply with all applicable federal, state, and Iocal laws.; ordinances, rules, and regulations. The Franchiseeshall comply with all orders or other directives of the City 'issued pursuant to this Agreement or with respect to the City's management of its Public Rights-of-Way, subject to applicable law, including, without limitation, Nebraska Revised Statutes, Chapter 86,. and the City Code of`Blair, Chapter 8, as the same may be amended or recodif ed from time to time. The City has the right to. oversee, regulate and inspect the installatioil, upgrade; construction, repair, maintenance, relocation, and removal of Facilities in the Public Rights-of-Way in accordance with the provisions of this Agreement and applicable law, The City reserves the right to adopt or issue such rules, regulations, orders or other directives governing the Franchisee or Facilities as it shall find necessary or appropriate in the lawful exercise of its police power, -and such other lawful,orders as the City shall find necessary or appropriate relating to management of the Public Rights-of-Way. No. rule, regulation, order or other directive issued pursuant to this Section shall constitute an ariiendment to this Agreement, 4.2 Regulatory. Approvals, The Franchisee shall obtain all necessary approvals from the appropriate federal and state authorities to offer Telecommunications Services by means of the Facilities, and shall, upon the City's request, submit evidence of such approvals to the City. In the event that Franchisee receives notice that it is no longer a certificated provider of Telecommunications Services; the Franchisee shall promptly notify the City of the same. 43 Use of Franchisee's Facilities. The Franchisee and the City may enter into pole attachment, joint -use, or conduit lease agreements regarding the use of Franchisee Facilities. Franchisee shall not charge the City for any Franchisee Facilities being utilized by the City for traffic signaling, lighting, police, fire or any other public safety purposes as of the Effective Date, SLcrtoN 5; CONSTRUCTION, LOCATION, RELOCATION, AND REMOVAL OF FACILITIES 5.1 Permittina. All Construction and Maintenance in the Public Rights -of -Way by the Franchisee small be subject to the City's generally applicable, non-discriminatory permit requirements, and Franchisee shall comply with all generally applicable, non-discriminatory requirements established by the City, including the payment of permitting fees and the posting of required bonds. The City of Mair requires compliance with required bonds as stated in the Blair City Code. Franchisee shall, at the time it applies for a Right of Way permit; submit to the Director the accompatiyii�g information which (a) shall identify the specific location within each Public Rights=of V4tay in which the proposed Construction and/or Maintenance is to take place, (b) shall describe the Facilities to be installed in each Public Rights -of --Way and the Construction techniques to be used in accomplishing the installation, (c) shall provide any required traffic control plan that shall be reviewed and approved by the Director, (d) shall shite, as to each Public Right -of -Way, the dates on which the proposed Construction and/or Maintenance is to commence ,and when the proposed Construction and/or Maintenance is anticipated to be completed, (e) shall verify that Franchisee_ has obtained, or. will obtain prior to commencing the Construction and/or Maintenance, approval of the placement of the Facilities and any rcgtured permits from any other entity (not including departments or agencies of the City) whose approval is required by law; and (f) shall provide other reasonable information the. Director reasonably requests: Except in the cases of emergencies, the Franchisee shall not move, materially alter, materially change, relocate, remove, or extend any of its Telecommunications System in any Public Rights -of -Way unless prior permit app 1 i c at i on of its intention to do so is given to the City and a pe-pe is issued to do so is granted by the City. Such permission shall be conditioned upon compliance with the terms and conditions of this Agreement, with such other terms and conditions as will preserve, protect and promote the safety of the public using the Public Rights -of -Way, and as will prevent undue interference with or obstruction of the use of the Public Rights-of=Way by the public, the City or by; any other public utility or public-service corporation for their respective purposes and functions. Such work. by Grantee shall also bea coordinated with the City's annual paving program through the Department of Public Works. The Director shall have the discretion, which is to be reasonably exercised, to determine the tinging of the proposed Construction and/or Maintenance, taking into account the dates requested by the Franchisee_ and other planned arid/or on- going construction work in the affected Public Rights -of -Way, 5.2 Emergencies. During emergency situations, the Franchisee. may take all. reasonable measures to restore service and alter its Facilities as necessary to ensure the safety of the residents of the City. As soon as practicable, the Franchisee shall notify the Director or their designee of any emergency necessitating an obstruction. Franchisee shall coordinate its activities iti responding to the emergency with the Director or his or her designee. 5.� Location of Facilities. Franchisee agrees that Construction and/or Maintenance of Facilities in the Public Rights-o&Way shall be � done in such locations and in such a manner so as -not to interfere with the construction, location, and maintenance of existing sewer, water, drainage, electrical, gas, traffic signal, street light and other utilities and conduits in the Public Rights-of�Way, or with the public safety and, to the fullest extent possible, with the convenience of persons using the Public Rights -of -Way, Construction and Maintenance performed by the Franchisee dial/, to the maximum degree feasible, be coordinated with any construction or maintenance being simultaneously undertaken at the same location by another provider of tel ecoanmunications or of cable service or by a provider of utilities. Unless otherwise directed by the City, the Graritee's facilities shall be constructed, installed and located, at their sole expense, as follows: (a) Grantee shall install its copper and/or fiber optic cables within an existing underground duct. .Or conduit whenever excess capacity exists within such utility facility,. so long as Grantee, by so doing, would not be required to relinquish ownership and. control of its facilities to the owner of the duct or conduit, and so long as Grantee determines such installation to be the most economically feasible option available: (b) Grantee may not install utility poles in the public right-of-way, In addition, Grantee may install its Telecommunications facilities on existing or replacement utility poles to the extent that space is available thereon, with 'the approval of the. City. (c) Grantee shall comply, at its sole expense; with all generally applicable, non-discriminatory requirements regarding the placement of its Facilities underground as required by this Agreement and the City in accordance with Blair City Code Chapter 8, or its successor provision, as the same may be amended and recodified from time to time. Notwithstanding the foregoing, the City shall have the right to specifically designate the location of the Franchisee's Facilities with reference to City facilities including, without limitation, sewer and water mains, drainage facilities, fiber optic cable, signal poles and lines and other City services as well as with reference to other facilities including, without limitation, public telephone utilities, public electric utilities, cable television utilities, and railway communication and power lines, in such a manner so as to protect the public safety and public and private property. Failure by the City to so designate does not relieve the Franchisee of its responsibilities in matters of public safety as provided in this Agreement. 5.4 Excavations. The City requires. that written permits; in any and all cases except emergeheies, be obtained by Grantee whenever it becomes necessary for Grantee to excavate in the Public Rights -of -Way in order to install, construct, maintain or extend the Telecommunications system. Such permits may be made applicable to any and all types of excavations in the Public Rights -of -Way, as prescribed by City, and City may establish a fee for each excavation made in a public way by a Grantee. Such permits may require the particular part or point of the Public Rights -of -Way where construction or excavation is to be conducted, the length of time in which such permit shall authorize such work to be done and the hours of each day during which such work shall be undertaken. A single permit maybe issued for multiple excavations to be made in Public Rights -of Vay, provided, however, any public, way opening fee established by City shall Apply to each excavation made in Public Rights -of - Way of the City. Exceptions to the requirement for a written: permit inay be allowed in cases of Onergcncies 'involving public safety or restoration of service. In the ease of emergency excavations made in the Public Rights-of- Way ights-ofWay without permit, Grantee shall attempt to notify the Director- of Public. Works or his designee immediately to obtain appropriate guidance and Authority; however, in the event Grantee. is unableto make such contact after making a diligent attempt to do so, Grantee may make a report of each such excavation to the City within two (') working days and pay such fee as may be. established by City for excavations in Public Rights -of -Way by Grantee. Any permit applications and inspections related to repair of excavations shall be promptly acted upon by the City so as not to unreasonably delay Grantee in efficiently discharging -its public service obligation 5.5 Protection/Restoration of Public Rights -of -Way In connection with the Construction and Maintenance of Facilities by Franchisee, the Franchisee shall, at its own cost and .expense, protect the Public Rights -of -Ways and any City -owned Structures thereon, there under or there over, and shall obtain the prior approval of the City, pursuant, to this Agreement, before altering_ the Public Rights -of -Way or any such Structures. Any such alteration shall be made by the Franchisee, at its sole cost and. expense, in a manner prescribed by the City to protect the Public Rights -of -Way and any City -owned Structures thereon. If, in the course of Construction or Maintenance or otherwiso dealing with any of the Facilities, Franchisee damages any pavement, street, alley, sidewalk, sewer, water or other pipe, in or adjacent to the Public Rights -of --Way, or any other public property, real or personal, belonging or dedicated to the City, Franchisee shall promptly repair the same to its preekisting condition at its own cost and expense. If winter weather conditions or the availability of materials delay permanent pavement restoration, the Franchisee shall 'Make an acceptable temporary patch. When weather conditions permit or materials become available, the Franchisee shall mare permanent restoration as noted above. Franchisee shall also maintain such temporary patches until a permanent repair is completed. Should Franchisee fail to repair, replace and restore in kind, the said damaged property in a manner as may be reasonably specified by the City and to the reasonable satisfaction of the City, after thirty (30) days' written notice, the City may cause such necessary repairs to be made. Upon completion of the work, the City shall provide the Franchisee with written notice of the work- it has performed, and also shall provide the Franchisee witli a statement of the reasonable costs the City incurred in performing the work. Any costs assessed upon the Franchisee pursuant to this. Section shall be paid to the City within thirty (30) days of the Franchisee's receipt of the City's statement of costs incurred. The City may collect the costs incurred from the' Franchisee,including without limitation exercising the City's rights to draw on bonds and letters of credit. The City .may collect such costs, and any expenses and attorneys' fees incurred in collecting such casts, as debts awed to the City, by bringing an action in any court of cornpetenf jurisdiction or- in any inanner allowed by law. The City may impose a lien on the Franchisee's property in an amount equal to all such costs, experises31 and legal fees associated with its collections efforts. Notwithstanding the foregoing, if the Director determines, in his sole discretion consistent with applicable law, that the damage threatens the public health or safety, the City may commence the repair of the damage and assess its costs upon Franchisee in the manner set forth herein without regard for the notice requirement set forth in this Section; however, prior to con-irnencing such repair work, the City shall make reasonable effort to provide. Franchisee with telephonic notice and an opportunity to immediately repair the damage itself. The Franchisee shall repave or resurface the Public nights -of` Ways in accordance with the then -current standards set forth by the Director if theme are any street cuts. or other disturbances of the 'surface of the Public Rights -of: Way as a. result of any Construction or Maintenance by the Franchisee under this Agreement. The Franchisee shall warrant for one (1) year; commencing on the date the work is approved by the City, that any such replacement: or repair required by this Section (excluding trees, grass and other plantings) confoimis to written City specifications and requirements made available to the Franchisee. All trees, landscaping and grounds removed, damaged or disturbed as a result of the Construction or Maintenance of the. Franchisee's Facilities shalt be replaced or restored, as nearly as may be practicable, to the condition existing prior to the performance of work. All restoration wont shall be in accordance with landscape plans approved by the City, Promptly after installation, repair 'or extension of the Tel econimunications system or any portion thereof or any pavement cut by Grantee in any public way of the City, the incidental trenches or. excavations shall be refilled by Grantee in a manner acceptable to the Director of Public Works. Pavement, sidewalks, curbs, ;utters or any other portions of Public Ri_htswof Way damaged, disturbed or destroyed by such work shall be promptly restored and replaced with like materials to. their former condition by Grantee at its own expense; however, where it is necessary, and if authorized by the City, in order to achieve the former conditions; Grantee shall use materials whose type, specification and quantities exceed or are different from those used in the installation, then. Grantee at its own. expense shall provide such different materials: Where.a cut or disturbance is. made in a section of sidewalk or paving, rather than replacing only the area actually cut, Grantee shall replace the ftill width of the existing sidewalk or appropriate sections of paving as determined by the Director of Public Works and the full length of the section or sections cut, a section being defined as that -area marked by expansion Joints or scoring or as determined by the Director of Public Works in accordance with the City's Right -of -Way Excavation & Restoration Manual and Blair City Code. Grantee shall maintain, repair and keep in good condition for a period of .oii (1) year following such disturbance all portions of Public Rights -of -Way disturbed by Grantee, to the extent that such maintenance and repair is necessary because of defective workmanship or materials supplied by Grantee. 5.6 _Weather/Other Conditions. If weather or other conditions do not permit the complete restoration required by this Section, the Grantee shall temporarily restore the affected Public Rights�of-Way or property. Such temporary restoration shall be at the Grantee's sole expense and the Grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. 53 Safes Precautions: Grantee shall not open, disturb or obstruct, at any one. time, any more of the Public Rights -of -Way than reasonably may be necessary to enable it to proceed in laying or repairing its Telecommunications system. Grantee shall not permit any Public -Rights -of Way so opened, disturbed or obstructed by it in the installation, construction., repair or extension of its Telecommunications system to remain open or the public way disturbed or obstructed for a longer period of time than reasonably shall be necessary. Franchisee shall maintain, in good and.safe condition all Facilities it places within Public Rights -of -Ways' The franchises shall, at its own cost and expense, undertake to prevent accidents at its work sites in, at or on the Public Rights -of -Way including without limitation,the placing and maintenance of suitable s i g n s, barricades, signals, flags; flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such Public. Rights of Way or other property. Grantee shall comply 4vith all federal, _state, and local laws and regulations, including. without limitation. the flagging requirements of the Nebraska Department of Transportation, 5.8 Relocation. Relocation or Removal of Facilities, Nothing in this Agreement shall be construed to abrogate or limit the right of. the City to perform any public works. or public improvements. If any of Franchisees Facilities interfere with the construction, operation, maintenance, repair: or removal of such public works or public improvements, within thirty ('30) days after written notice by the City, or after such other period of time as may be agreed upon in writing by the City and Franchisee, Franchisee shall, at its own expense protect, alter, remove or relocate its Facilities as directed by the City. The Franchisee shall, on the request of any Penson holding a lawful permit issued by the City or from the City for a beautification project, protect,. support, raise, lower, temporarily disconnect, relocate in or remove from the Public Rights of Way as necessary any property of the' Franchisee, provided the expense of such is paid by any such Person benefiiing.from the relocation and the Franchisee is give reasonable advance written notice to prepare for such changes. The Franchisee may require such payment in advance. For purposes of this subsection, "reasonable, advance written notice" shall be no less than ten (10) business days in the event of a temporary relocationi and no less than one hunidred twenty (120) days for a permanent relocation. If funds are available from any source to any person using the Public Rights of Way for the purpose of defraying the, cost of any of the foregoing, the: City shall reirriburse the Franchisee in the same manner in which other Persons affected by the: relocation are reimbursed. If the funds are controlled by another governmental entity, the City shall make application for such funds on behalf of the City or shall assist. the Franchisee ii1 making such reimbursement application request. The City shall not be liable to the Franchisee for any damages resulting from such removal, alteration, relocation, or protection. if the Franchisee -faits to so protect, alter, remove or relocate its Facilities within such period, the City may break- through, reakthrough, remove, alter or relocate the Franchisee's Facilities without any liability to the City, and the Franchisee shall pay to the City the costs incurred in connection with such breaking through, removal, alteration, or relocation. The Franchisee shall also reimburse the City for or bear any additional cost actually incurred by the City as a result of the Franchisee's failure to comply with the City's request to protect, alter, remove, or relocate. its Facilities under this Agreement. The City may collect such costs, as debts owed to the City, by bringing action in any court of competent jurisdiction or by exercising the City's rights to draw on bonds or letters of credit, or in any other lawful manner, individually or in combination. The City may impose a lien on the property of the Franchisee in an amount equal to such costs; expenses, and legal fees associated with collection efforts. 5,9 Quality, All work involved in the Placement and Maintenance of Facilities shall be,performed in a safe, thorough and reliable manner in accordance with industry, professional, state and federal mandated standards and. using materials of good and durable quality. If; at any time, it is determined by the City or any other agency or authority of competent jurisdiction that any Facilities violate any health or safety lav or regulation, then the Franichisee shall, at its own cost and expense, promptly correct all such conditions. 5.10 No Obstruction, Franchisee shall not obstruct traffic to any street, road, or other Public, Rights -of -Way within the corporate limits of the City without the prior consent of the City. Facilities of the Franchisee in the Public Rights -of -Way shall be located so as to cause minimal interference with any use of the Public Rights- of-Way ights- ofWay and.adjoining property. 5.11 Tree TrininiinR, The Franchisee may trim trees that overhang a public right-of- way so as to prevent. the branches of such trees from conning in contact with Franchisee Facilities. IIo.wever, no tree trimming by Franchisee may take place except pursuant to a tree trimmingg plan that has been reviewed and approved by the City. SECTION 6.: REPORTS AND RECORDS 6.1 Re orts. At the request of the City, and subject to the terms of Subsection 6.3, the Franchisee shall submit to the City;. within a reasonable period of time, such information, as maintained in the. ordinary course of business, as the City may treasonably require to verify compliance with the terms of this Agreement. 6.2 Books and Records. To the extent reasonably necessary to determine the Frarichisee's compliance with this. Agreement or to carry out the City's authority to manage. the Public Rights-of:Way, throughout the 'Perin, the Franchiseo shall make available to the City for inspection within thirty (30) business days' notice to the Franchisee, such complete and accurate books of account, records, documents and other information as the City may reasonably need with respect to the Facilities; including, without limitation, books. of account, records, documents and other information adequate to enable the Franchisee to demonstrate, at all times throughout the Tenn that it is, and has been, in compliance with the tennis of this Agreement. If such books, records, docuinents and other information are located outside the corporate Habits of the City, the Franchisee shall provide copies of the. necessary books, records, documents and other information for inspection at a Franchisee location within a fifty (50) mile radius of the City, or the Franchisee shall pay the reasonable travel costs and expenses of the representatives designated by the City to examine such books, records, documents and other information in a location outside a. fifty (50) mile radius of the City. 6.3 Treatment of Proprietary Information. Access by the City to any of the documents; records or other information covered by this Agreement shall not be denied by the. Franchisee on grounds that such documbi—its, records or information are alleged by the Franchisee to contain Proprietary Information. If any information eeque*Sted by the City is- considered to be proprietary by the Franchisee, the Franchisee shall notify the City of the same and the City will make every effort to keep said infornnation confidential to the extent permitted by the Nebraska Freedom of Information Act or any other successor statute or lacy, as the same may be amended or recodified from time to time. For purposes of this Agreement, "Proprietary Information" means that portion of documents; records or other information which is in the possession of the Franchisee. which is not generally available to the public and which the Franchisee desires to protect against untrestricted disclosure or competitive use. The protections offered to the Franchisee by this Section shall not apply to documents, records or other information which: (a) are made public or become available to the public other than through a disclosure by the City; (b) are already in the possession of the City prior to the Effective Date; (c) are received from a third. party without resttiction;, (d) are independently developed by the City; or (e) are disclosed pursuant to a valid court order or applicable law. SECTION 7: LIABILITY AND INSURANCE 7:1 Insurance Specifications. Througliout the term, the Franchisee shall, at its own expense, maintain a liability insurance policy or policiesi together with evidence acceptable to the City demonstrating, through a certificate of insurance, that the Franchisee is maintaining the insurance- required by this Section. Such policy or policies shall be -issued by companies duly authorized or permitted to do business in the State of Nebraska, and shall meet the following requirements: a) The City of Blair, its officers and officials, employees, agents and voluinteers shall be. added as "additional insured" as their interests may appear. This provision does not apply to Professional Liability or Workers' Compensation/Employers' Liability; b) The Franchisee's insurance shall be primary over any applicable insurance or self-insurance maintained by the Franchisor; c) Franchisee shall provide thirty (30) days written notice. to the Franchisor before any cancellation, suspension; or void of coverage in whole or part, where such provision is reasonable; d) All coverage for subcontractors of the Franchisee shall be subject to all of the requirements stated herein; e) Failure to comply with any reporting provisions of the policy(s) shall not affect coverage provided the City, its' officers/officials, agents, employees'and volunteers; f) The Franchisee shall Furnish the Franchisor with all certificates of insurance. All insurance shall be placed :with insurers maintaining an A.M. Best rating of no less than an A:VII. If the A.M. Best rating is less than A:VII, approval must bereceived from the City's Disk Officer; and h) All coverage designated herein shall be- as broad as the Insurance Services Office (180) forms filed for use with the State of Nebraska. 7.2 Coverage Types and Limits. Franchisee. shall obtain and maintain throughout the. Terni the following insurance coverage: a) Comprehensive Commercial general liability insurance in an amount Rot less than $1,000,000 combined single limit coverage with $2,000,000 general aggregate coverage, $2,000,000 ongoing operations, products/completed operations aggregates and $1,000,000 per person for personal Injury covering all premises and operations including independent contractors and sub -contractors; b) Nebraska statutory workers' compensation coverage, including Nebraska benefits and employers' liability with limits of $100,000 bodily injury each accident, $100,006 bodily injury disease each employee;$500,000 bodily injury disease policy limit. The general aggregate limits shall apply to' all Facilities and activities under this Franchise.. Franchisor shall be named an additional insured on the liability policy; c) Automobile liability with a minimum limit of $1,000,000 combined single limit and $5000 for medical expense to cover all vehicles owned, used, or Hired by the Franchisee, his agents, representatives, employees or subcontractors; and d) Excess of uurnbrella liability coverage with a minimum limit of $2,000,000. 7.3 Instu'ance — Maintenance. The liability insurance policies required above shall be maintained by the Franchisee throughout the Term and such other period of time during which the Franchisee operates. or is engaged in the removal of Facilities. Within thirty (30) days after the date of cancellation of insurance, the Franchisee shall obtain and furnish to the City a certificate of insurance evidencing replacement of the insurance required by this Agreement. Such certificate shall show Continuous insurance coverage from the date of cancellation of prior insurance forward. 7.4 Increased Insurance Coverage. In the event of any changed circumstances following the Effective bate related to the activities of the Franchisee in the Public Rights -of -Ways, which in affect the risks associated with the activities of the Franchisee permitted or authorized by the City, after consulting with the Franchisee, may. alter the minimum limitation of liability - insurance - policy or policies or other evidence of insurance. 7.5 Indemnification. Franchisee shall, at its sole cost and expense, fully indemnify, Mead and hold harmless the City; and all of its officers_, officials, employe" and agents from and against any and all losses and any and all claims, suits, actions,. causes of action, damages, liability, expenses (including court costs and attorneys' fees) and judgments for damages or other relief arising out of the installation, construction, operation, maintenance, relocation, repair; or removal of the Franchisee's Facilities; including but not limited to any claim fot, bodily injury of for property damage. This indemrifflication provision does not extend to instances of negligence or witlful misconduct by the City, and all, of its .o..ffieers, officials,. employees and agents. The indemnity obligation of the Franchisee under this Section shall include, but is not, limited to, providing legal representation and otherwise defending the City and City officers, einployees and agents against any claim, suit, or action covered by this indemnification. The City shall. provide the Franchisee with prompt notice of any loss, clan , suit or action covered by this indemnification. In addition, the Franchisee shall protect, indernnify, and hold. harmless,: the City, its officers, agents, and employees from any and all demands for fees, claims, suits, actions, causes of action, or judgments based on the- alleged infringement or. violation of any patent, invention, article, arrangement, or other apparatus that may be used in the performance of ally work or activity arising out of the use of any. Telecommunications Facilities or the provision of Telecommunications Services. If a suit or action for which the City or its officers, employees and agents are entitled to be indemnified and held harm less pursuant to this Section shall be brought against the City or one or more of its officers, employees or agents, either individually or jointly with the Franchisee, the Franchisee shall defend, indemnify and hold harmless the City and the sued officers, employees and agents at the sole cost and expense of the Franchisee, The City shall promptly provide the Franchisee with written notice of the commencement of any such suit or action, The Franchisee shall conduct the defense of such suit or action. The City may also participate in this defense directly, at its own expense, if a final judgment is obtained against the City or one or more of its officers; employees or agents in a suit or action, either independently or jointly with Franchisee, for which the City and its officers, employees and agents are entitled to be indemnified and held harmless under this Section, Franchisee shall pay every judgment; including all costs. and attorneys' fees, entered against the City and any of its officers, employees and agents. The Franchisee: shall be entitled to settle a claim brought in a suit or action for which the City and its officers, employees and agents are entitled to be indemnified and held harmless under this Section, provided that the franchisee must obtain the prior written approval of the City for any settlement of such claims against the City, which approval shall not be unreasonably withheld or unreasonably delayed. The indemnities in this Section shall survive the expiration of or earlier teimination of this Agreement for a -period of five (5) }rears. 7,6 Liability not Limited. The legal liability of the Franchiseeto the City and any Person for any bf the matters that are the subject of the liability insurance policies or other evidence of insurance- required above, including, without limitation;. the Franchisee indemnification obligations as set forth in this Agreement, shall not be limited by such insurance policies nor by the recovery of any amounts: thereunder, except to the extent necessary to avoid duplicative recovery from or payment -by Franchisee, 7:7 Liability. of City. Neither the City nor -its officials:, employees, agents, attorneys, consultants or independent contractors shall be responsible to the Franchisee for any liability as a resultof or in connection with the protection, breaking through; movement, removal,, alteration,, or relocation of any- Facilities by or on behalf of the Franchisee or the City in accordance with this Agreement or in connection with any emergency related to the health and safety of tlie public. The City and its officers, employees and agents shall have no liability to the Franchisee, any Affiliated Person or any other Person for any other damages as a result of the exercise of any right of the City pursuant to this Agreement or applicable law, the rights of the City to approve or disapprove the grant, termination, amendment, renewal or transfer of the Franchise, or to otherwise modify all or any part of this Agreement or the Franchise. The City, Its officers, employees and agents shall not be responsible for any liability of the Franchisee, any Affiliated Person or any other Person, arising out of or in connection with acts or Omissions of the Franchisee or any officer, employee, agent or subcontractor thereof, in the Construction or Maintenance of Facilities or the provision of services by means of the Facilities. However, nothing in this Section shall waive -any rights that the Franchisee otherwise has against the City for any willful misconduct or grossly negligent acts or omissions of the City. 7.8 Liability of Franchisee. The Franchisee shall be responsible for any liability, including, without limitation, any liability of the City and any officer, employee or agent of the City, arising out of or in connection with acts or omissions of the Franchisee or any officer, employee, agent or subcontractor thereof, in the installation, upgrade, construction, repair, maintenance and removal of Facilities or the provision of services by means of the Facilities. The Franchisee shall at its own cost and expense, replace, repair or restore any of the City's damaged property to its prior condition if such damage is caused by any act or failure. to. act of the Franchisee or any officer, employee, agent or subcontractor thereof, in connection with the Construction or Maintenance of Facilities. or the provision of services by means of the Facilities. 7.9 Consequential Damages: Notwithstanding any other provision contained in this Agreement, in no event shall either party be liable for any special, incidental, consequential, indirect, or exemplary damages. SECTION 9. TRANSFERS 9:1 Change in Control or Transfer of Tel econiniunications System; The Franchisee shall not assign, transfer, lease, or sell any of the rights and privileges- granted hereunder without the prior written consent 'of'the City, lig the event -that (i) a.,o ange in. Control of the Franchisee, or (ii) a -transfer of the rights and interests of the Franchisee in all or a portion of the Telecommunications System' is proposed by the Franchisee after the Effective Date, the Franchisee- shall provide notice to the City, within thirty (30) days ,after any filing with the Nebraska State Corporation Commission or applicable agency seeking consent to such proposed transaction. The notice shall identify the Person that will acquire Control of the Franchisee, or that will acquire the rights, interests or obligations of the franchisee in all or a portion of the Telecommunications System. The Person acquiring Control of the Franchisee or acquiring the rights, interests or- obligations of the Franchisee in all or a portion of the Telecommunications System shall be required to enter into a license agreemobt or franchise agreeincnt with the City granting such Person the. right to occupy the Public Rights -of -'Way, The Franchisee's failure to notify the City of a change in Control of the Franchisee or of the Franchisee's transfer of its rights and interests in all or a portion of the ToJecominunicatioiis System to another Person shall constitute a material breach of this Agreement. For purposes of this Section, "Control" means ownership of (iffy percent or more of the voting stock of the Franchisee, or the actual ,exercise of any substantial influence over the policies and actions of the. Franchisee. The prior consent. or the City shall not be required with respect to intra, corporate transfers, of reorganizations between or among wholly owned or controlled subsidiaries of the Company, affiliates, or any Persons; directly or indirectly, controlling or controlled by, or wider common control with, the Company 9.2 Permitted. Encumbrances. Nothing, in this Section shall be deemed to prohibit any assignment; pledge, lease, sublease, mortgage; or other transfer of all or any part of the Facilities or any right or interest therein, for financing purposes, provided that the City's rights under this Agreement are 'in no way adversely affected or diminished. The consent of the City small not be required with. respect to any transfer to, or taking of possession by, any banking or lending institution which is a secured creditor of the Franchisee of all or any pant of the Telecommunications System pursuant to the rights of such secured creditor pursuant to the laws of the State of Nebraska, provided further that the City's rights udder this Agreement are in no way adversely affected or diminished, SECTION 10; TERMINATION 10.1 Termination Events, The City, at its. option,.may terminate.. this Agreement upon any material breach of this Agreement by the Franchisee that is not cured within thirty (33 0) days after the Franchisee receives notice from the City, or such longer period of time as may be reasonable under the circumstances, provided the. cure is commenced within the thirty (30) day period after notice from the City and the Franchisee is proceeding with due diligence to complete such cure, A material breach shall include, but shall not be limited. to, the. following: (a) the condemnation by a public authority, other than the City, or sale or dedication under threat or in lieu of conde1.nination, of all or.substantially all of the Facilities,. the effect of which would materially frustrate or impede the ability of the Franchisee. to carry out its obligations and the purposes of this Agreement, if the Franchisee fails to. demonstrate to the reasonable satisfaction of the City, within the thirty (30) day notice period provided above,' that such condemnation, sale or dedication would not materially frustrate or impede such ability of the Franchisee; (b) any denial, forfeiture or revocation by any federal, state or local governmental authority having regulatory jurisdiction over the Franchisee of any material authorization required by law or the expiration without renewal of any such authorization, and such events, either individually or in the aggregate, have an adverse effect on the installation, upgrade, construction, repair, maintenance or removal of the Facilities, and the Franchisee fails to take steps, within the thirty (30) day notice period provided above, to obtain or restore such authorization; and to diligently pursue such steps; (c) any failure of the Franchisee to maintain the insurance required by this Agreement; (d) any failure of the Franchisee to maintain any form of surety required by this Agreement; (e) any failure of the Franchisee to comply with the transfer notice set forth in Section 9 of this Agreement; (f) any failure of the franchisee to -comply with any material provision of this Agreement; (g) any abandoiiment of the entire Telecominquicatiotis System; and (h) any persistent failure of the Franchisee, after notice and an opportunity to cure with respect to substantially all such failures of the Franchisee, to comply with any term, condition or provision of this Agreement or any other ordinance, law, regulation, rule or' order of the City relating to management of the Public Rights - of -Way in connection with installation, upgrade, construction, repair, maintenance and removal of Facilities. 10,2 Rights Upon Termination. Upon termination of the Agreement, the City shall have the right to direct the Franchisee to remove all or any portion of the Facilities from the Public Rights -of -Way, at Franchisee's sole cost and expense. The City shall allow the Franchisee to abandon certain underground facilities in place if the City determines that removal of Facilitieswould cause an unreasonable disruption to the public Rights -of -Way. Reinovai of Facilities shall be -in accordancewith Section 5 of this Agreement. SECTION 11. ADDITIONAL PROVISIONS' 11:1 Delays and. Failures Beyond Control of a Party.. Notwithstanding any other Provision of This Agreement, a Party shall not be liable for delay in performance of, or failure to perform, in whale or in part, its obligations pursuant to this Agreement due to strike; war or act of war (Whether an actual declaration of war is made or not), insurrection; riot,. strike or labor unct rest, aof public enemy, accident, fire, flood or other act of God, terrorism, sabotage or. other events, where the Party has exercised ail due care in the prevention thereof, to the extent that such causes or other events are beyond. the reasonable control of the Panty, and such causes or events are not the result of the fault or negligence of the Party, If such delay in performance or failure to perform affects only part of a Party's capacity to perform, such Party shall perform to the maximum extent it is able to do so and shall take all steps within its power to correct such cause(§). The Parties agree that in correcting such cause(s), they shall take all reasonable steps to do so in as expeditious a manner as possible. 11.2 Notices. All notices, statements; demands, requests, consents, approvals, authorizations, offers, agreements, appointments,. designations, or other'directi6h or communication hereunder by any party to another shall be in writing sent to the following address: City: City Administrator City of BIair 218 S. 1611' Street Blair; NB 68008 AND Director, Department of Public Works City of Blair 218 S. 1611' Street Blair, NC 68008 ' With a copy to. City Attorney City of Blair 1762 Washington Street, Suite 104 Blair, NB 6800$ Franchisee; Cox Communications.Omaha, L.L.C. 11505 W. Dodge Road Omaha; NE 68154- Attn: Percy Dirk With Copy to: Cox Communications, Inc: 6305B Peachtree -Dunwoody Road Atlanta, GA 30328 Attn: Legal Department 11.3 Additional Representations and Warranties. In addition to the representations, warranties and covenants of the Franchisee to the City set forth elsewhere in this Agreement; the Franchisee represents and warrants to the City and covenants and agrees (which representations, warranties; coveriants. and agreements shall not be affected or waived by any inspection or examination made by or on behalf of the. City) that, as of the Effective Date: (a)Organization, Standing. Power, Authorization and Enforceability. The Franchisee is a Limited Liability Corporation duly organized, validly existing and in good -standing innder the, laws of the Commonwealth of Virginia and is duly authorized to do business in the State of Nebraska and the City of Blair. The Franchiseo has all requisite power and authority to own or lease its properties :and assets, to conduct its businesses as currently conducted and to execute, deliver and perform this Agreement and all other agreements entered into or delivered in connection with or as contemplated hereby; and if it is conducting business in another Jurlsdlctlon, it is in good standing as a foreign corporation in each jurisdiction. in which it conducts business. (b) Authorization, The execution, delivery and performance of this Agreement and all other agreeMents entered into in connection with the transactions. contemplated hereby have been duly, legally and validly authorized by all necessary action on the part of the Franchisee and its Cuarantor(s), and this Agreement. and all other agreements entered into in connection with the transactions. contemplated hereby Have been duly executed and delivered by the Franchisee and constitute (or upon execution and delivery will constitute) the valid and binding obligations of the Franchisee and are enforceable (or upon execution and delivery will be enforceable) in accordance with their respective terms. (e) Consent. No consent, approval or -authorization of, or declaration or filing With, any public, governmental or other authority (including; without limitation, the FCC or any other federal agency or any state, country, or municipal agency; authority, -commission or council, and, if applicable; public- utility commissions, telephone companies and outer entities) on the part of the Franchisee is required for the valid execution and. delivery of this Agreenient or aniy other agreement or instrument executed. or delivered in connection herewith: (d) No Coercion; Full Disclosure. The Franchisee enters into this- Agteement willingly and without coercion, undue influence or duress. In addition; the Franchisee has not entered into this Agreeinent with the intent to, act contrary to the provisions herein. (e) Accuracy of Written Information. Without. limiting tho specific language of any other representation arid, warranty herein, all information furnished by the Franchisee to the City in writing in connection with this Agreement, by authorized offlcers of the. Franchisee, is accurate and complete in all material respects, end includes all material facts "required. to be stated therein and does not contain any untrue statement of a material fact or omit any material fact necessary to make the statements therein not misleading, and the Franchisee has not misrepresented or omitted material facts in its negotiations with the City. (f) Compliance with Law. The Franchisee is in compliance with all laws, ordinances,, rdinances, decrees mid governmental rules and regulations applicable to the installation, upgrade; construction, repair, maintenance and removal of the TelecOffimunications System in the Public Rights -of -Way and is a certificated provider of local exchange telephone service in the State of Nebraska. (e)Litigation,, Investigations, Except as. disclosed in writing to the City prior to the execution of this Agreement, there is no civil, criminal, administrative, arbitration or other proceeding, investigation or claim, pending or threatened against the Franchisee, at lave or in equity, or before any foreign, federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, including, without limitation, matters involving the granting of a temporary or perinanent injunction against the Franchisee that, if granted, would have a material adverse effect on the ability of the Franchisee to.. comply wifli dais Agreement or to take any action to be taken by the Franchisee pursuant to this Agreement, 11.4 Franchises and Permits. The Franchisee shall secure all necessary permits and licenses in connection with the installation; upgrade, construction, repair, maintenance, relocation, and removal of Facilities and is a certificated provider of local exchange telephone service in the State of Nebraska. Iii the event that. the Franchisee receives notice or becomes aware that it is no longer a certificated provider of local exchange services, the Franchisee shall provide to the City notice of such event, 11.5 binding Effect: This Agreement shall be binding upon and, inure.to the benefit of the City and the Franchisee and their respective siuccessors and perinitted transferees and assigns.- 11.6 Headiii s� , Other Terris, The headings contained in. this Agreement are to facilitate reference only; do not. form a part of this Agreement, and shall not in any way affdct the construction oir interpretation Hereof Terms such as "hereby", "herein", "hereof, "hereinafter", "hereulider". and "hereto" refer to this Agrdernent as. a whole and hot to the particular sentence. or paragraph whgre they appear, unless the context otherwise requires. Any reference to "alis Section" refers to the Section as a whole and not to the particular sentence, subsection,. or paragraph in which they appear, unless the. context otherwise requires._ The term "rmy" is permissive; the terms "shall" and "will" are mandatory, notmerely directive. All references to any gender shall be deemed to include all others, as the context may require. Terms used in the plural include. the singular, and vice versa; unless the context otherwise requires. 11.7 No Third Party Beneficiary RiQl�.. Nothing in this Franchise is intended to interfere with any tariffs-, contracts or other arrangements Between the Franchisee and a third party, or to create any third party beneficiary rights. 1.1.8 Entire Agreement. This Agreement embodies the entire understanding and agreement of the City and the Franchisee with respect to the subject matter hereof and inerges and supersedes all prior representations, agreements and understandings, whether oral or written, between the City and Franchisee with respect to the subject matter hereof, including, Without. limitation, all prior drafts of this Agreement and any and all written or oral statements or representations by any official, employee, agent, attorney, consultant or independent contractor of the City or the Franchisee. 11,9 Abilih, to Perform. In the event the City reasonably identifies a material risk that the franchisee will be unable to perform its material obligations under this Agreement, including the installation, upgrade, construction, repair, maintenance, relocation, and removal of the Facilities, the City may request, and the Franchisee shall. provide to the City, a report addressing such platters and containing such detail and substance to demonstrate that it can perform, on a thhely basis, all material obligations pursuant to this Agreement. The Franchisee shall supplement any such report as the City may reasonably request. 11.10 Condition of Facilities. All Facilities will be maintained in good repair and condition throughout the Term, to the extent necessary to avoid damaging the Public Rights -of Way. 11.11 No Waiver, Cumulative Remedies. No. failure on the part of the City or the Franchisee to exercise, and no delay in exercising,, any right hereunder shall operate as a waiver thereof; .nor shall any single or partial exercise of any such right preclude any other right, all subject to the conditions and limitations established in this Agreement. The rights and remedies provided Herein are cuibulative and not exclusive of any remedies provided by law, and nothing contained in this Agreement shall impair any of the rights'of the City or the Franehisee. tinder applicable law, subject in each case to the terms and conditions of this Agreement. A waiver of atiy right or remedy by the City or the Franchisee at any one time shall not affect the exercise of such right or remedy or any other right or other remedy by the City or. the Franchisee, at. any.other time. In order for any waiver of the. City or the Franchisee to be effective, it must be in writing, 11.12 Survival. All representations and warranties contained in this Agreement shall survive the Term. The Franchisee acknowledges that certain of the. obligatioris to be performed under this Agreement are to be performed after the Franchise terminates or expires. 11,13 Controlling Law and Venue; Franchisee hereby agrees and submits itself 'to a court of competent jurisdiction in the City of Blair, Nebraska or to the United States District Court for Nebraska, and further agrees that this Agreement is governed by the laws of the Nebraska or any applicable federal laws and that all claims, disputes and other matters shall be decided only by such courts according to the laws. of the Nebraska or any applicable federal laws or by any regulatory body with jurisdiction, including the FCC. The Agreement shall be interpreted as if it were mutually drafted by the Parties. 11.14 Severability. Should any provision of this Franchise be held to be invalid, illegal or unenforceable by a. court of competent jurisdiction or by a decision of the Federal Communications Commission, that .fact shall not affect or invalidate any other provision, which shall remain in full force and effect, If the terms of this Franchise are materially altered due to changes in governing law; then the parties shall negotiate in good faith to reconstitute this Franchise in "I way consistent with then -applicable law in a form that, to, the maximum extent possible, is consistent with the original intent of the Parties and preserves the benefits bargained For by each Party. 11.15 Amendment. This Fraochise may not be modified, changed or amended except by a written instrument executed by the Parties. 11.16 Counterparts. This Franchiser may be execrated in two or more counterparts; each of which shall be deemed an original, .but all of which together shall constitute one and the same instrument, A facsimile or scanned signature may substitute for and have the same legal effect as an original signature, and that any cops` of this executed Franchise made by photocopy, -facsimile or scanner shall be considered an original. SIGNATURE PAGES. FOLLOW ATTEST: City Clerk CITY: CITY OF GLAIR, NEBRASKA Jai -8 Realph oPBlair Mayor FRANCHISEE: Its: Olftak EXHIBIT A