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