HomeMy WebLinkAbout2010-048 Agreement KCPL Fiber Optic Line RESOLUTION NO. R-2010-048
A RESOLUTION APPROVING A POLE ATTACHMENT AGREEMENT WITH KANSAS CITY
POWER & LIGHT COMPANY FOR INSTALLATION OF A FIBER OPTIC LINE FROM CITY
HALL TO THE PUBLIC WORKS BUILDING.
WHEREAS, the Board of Aldermen have approved the installation of new telephone
system to connect all municipal facilities on the same system; and
WHEREAS, in connection with the installation of such system, it is necessary to install a
fiber optic line to connect the buildings, including the Public Works building located at 4200 NW
Riverside, the path to which is partially located within the L385 Levee critical zone; and
WHEREAS, installation of the fiber optic line will occur underground until a point where it
intersects with West Platte and then will be installed above ground; and
WHEREAS, it is in the best interest of the City to install such fiber optic line on utility
poles owned and maintained by Kansas City Power & Light ("KCPL"); and
WHEREAS, the parties desire to establish the rights and responsibilities of each with
respect to the utilization of such utility poles in the form of a Pole Attachment Agreement; and
WHEREAS, the Board of Aldermen find it is in the best interest of the City to approve the
Pole Attachment Agreement in substantially the same form as set forth in Exhibit "A" attached
hereto;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
THAT a Pole Attachment Agreement between Kansas City Power & Light Company and
the City of Riverside in substantially the same form as set forth in Exhibit "A" attached hereto is
hereby approved and authorized; and
FURTHER THAT the City Administrator, Mayor and/or Finance Director are hereby
authorized to execute all documents necessary to carry out the terms and conditions of such
contract and the City Clerk is authorized to attest thereto.
PASSED AND ADOPTED by,the Board of Aldermen and APPROVED by the Mayor of
the City of Riverside, Missouri, the %� day of August, 2010.
� , � ! l.�l�. a�CJj � /���
� ^ w Mayor Kathleen L. Rose
ATTEST: �
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City Cle�k Approved �,s to Form:
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Pla � "omps n, City Attorney
KCP�L~'
CABLE TELEVISION & TELECOMMUNICATIONS
POLE ATTACHMENT AGREEMENT
BETWEEN
KANSAS CITY POWER & LIGHT COMPANY
AND
CITY OF RIVERSIDE
,
I
POLE ATTACHMENT AGREEMENT
THIS POLE ATTACHMENT AGREEMENT ("Agreement ") is entered into this 1". day
of September, 2010, by and between K:�nsas City Power & Light Company ("KCP&L") and the
Cityof Riverside, Missouri, ("Attacher").
RF.CITALS
WHEREA5, Attacher intends to construct, maintain, own and operate a cable television
system and/or provide �elecommunications serviee; and
WHEREAS, for this purpose, Attacher desires access to the poles and rights-of-way
belonging to KCP&L (the "KCP&L Facilities") to attach, iustall, operate and/or maintain
communication wire and cabies and other associated equipment (the "Attacher Facilities"); and
WHEREAS, KCP&L is willing, to the extent it is lawfully obligated and lawfully able to
do so and subject to the terms and conditions set forth herein, to permit the attachment and
operation of Attacher Facilities in and on KCP&L Facilities.
AGREE:VIENT
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set
forth herein, the parties agree as follows:
Section 1. Scone
This Agreement governs all attachments of Attacher Facilities made to KCP&L
Facilities, with or without KCP&L's consent. As used herein, the term attachment includes any
overlashing of wire or cable to an existing wire or cable owned by Attacher and attached to
KCP&L Facilities. Attacher shall provide KCP&L within forty-five (45) days from the daCe the
Agreement is execuled a list, along with Attacber's maps, identifying the location of Attacher's
Facilities attached to KCP&L's Facilities and whether each Attacher Facility is an attachment by
a cable television system used solely to proe-ide cable service pursuant to 47 U.S.C. § 224(d) or
is an attachment used to provide telecommunications services pursuant to 47 U.S.C. § 224(e).
This Agreement is limited to the following geographic area: The city limits of Riverside,
ltissouri. Any changes to this geographic boundary must be agreed upon in writing and
signed by both parties. This agreement excludes poles with transmission lines es well as street
light poles.
Section 2. Term
The initial term of this Agreement shall commence on the date the Agreement is executed
and remain in effect for three (3) years. After the initial tenn, the AgreemenC shall remain in
effect until terminated by either party by giving ninety (90) days written notice to the other party.
Notwithstanding the foregoing, KCP&L mey terminate the Agreement by providing
Attacher with thirty (30) days wriuen notice if, at anytime, there is an Event of Default, as that
term is defined herein,
Section 3. Termination
3.1 Attacher Facilities
Within sixty (60) days of termination of the Agreement, Attacher shall prompdy remove
all Attacher Facilities from KCP&L Facilities. If Attacher fails or refuses to remove Attacher
Facilities within the sixty (60) days, KCP&L shall have the following options: (1) KCP&L may
remove and dispose of Attacher Facilities at Attacher's sole risk and responsibility, including
expenses incurred in removing and disposing of Attacher Facilities. (2) KCP&L may assume
ownership of all Attacber Facilities �ttached to KCP&L Facilities on an as is, where-is basis. If
KCP&L assumes ownership of Attacher Facilities, KCP&L shall give notice to Attacher. (3)
Attacher shall retain ownership and responsibility for Attacher Facilities, including rental and
any liability arising from the presence of Attacher Facilities.
In addition, if Attacher fails to remove Attacher Facilities within the time provided for in
this Agreemcnt, Attacher shall, within thirty (30) days of a written request from KCP&L,
provide KCP&L with copies of all documents and information perCaining in any way to Attacher
Facilities.
3.2 Outstanding Paymeots
Upon termination of the Agreement, Attacher shall pay KCP&L any and all sums due
and owing to KCP&L under tt�e tcrms of the Agreement; and, both parties understand and agree
that (i) any periodic payments due from Attacher to KCP&L shall be prorated as of the date of
terminalion, and (ii) in the event that this Agreement is terminated in part, the compensation
shall be reduced accordingly, In addition, Attacher shall make appropriate financial
arrangements, reasonably satisfactory to KCP&L, to provide for che cost of removal of all
affected Attacher Facilities.
This Section 3 shall survive lhe termination of this Agreement.
Section 4. Confidential Information
41 De�inition
The term "Contidential Information" shall mean all information or enhancements which
relate to past, present, and future research, development, and business activiries of KCP&L and
its affiliates, including the inventions, discoveries, formulas, processes, devices, methods,
compositions, eompilltions, system plans, flow charts, source codes, algorithms, procedures,
data, mdps of KCP&L facilities, and other proprietary information which may be oral, electronic
or written or may be an electronic copy ar embodiment of oral, electronic or written information
which Attacher, its Conlractors or Subcontractors, or any of their respective employees, may
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invent, create, construct, compile, develop, improve or receive in the course of business pursuant
to this Agreemcnt.
4.2 Exclusions
Confldential Infarmation shall not include:
a) Infarmation lawfully known to Attacher prior to this Agreement other than
through other work with or for KCP&L; or
b) Information that is publicly disclo�ed through no act of Attacher, its Contractors
or Subcontractors, or any of their respective employees, either prior or subseyuent
to KCP&L's disclosures of such information to Attacher.
4.3 Attacher's Obligations
During the term of this Agreement and thereafter, except as KCP&L may authorize in
writing, Attaeher shall and shall cau�e its employees, Contractars and Subcontractors to:
a) Treat and cause to be treated as confidential all Confidential Information;
b) If required by KCP&L, grant access to Confidential Information only to persons
who have signed KCP&L's Confidentiality Agreement, a copy of which is
attached hereto, including, but not limited to, Attacher, its Contractors and
Subconlractors, or any of their respecrive employees involved in the course of
business pursuant to this Agreement. Attacher's supervisory personnel needing
access to Confidentix] Information, its Contractors and Subcontractors (if any)
permitted to be involved in the course of business pursuant to this Agreement;
c) Use ConfidenUal Information only in connection with the course of business
pursuant to this Agreement;
d) Make copies of any tangible embodiment of Confidential Information only as
necessary in accorddnce with this Agreement;
e) Remove any tangible embodiment of Confidential Infarmation from the premises
of KCP&L only with the express written permission of KCP&L; and
fj Return any or all tangible embodiments of Con�dential Information to KCP&L
promptly following the request of KCP&L.
4.4 Disclosure Pursuant to Court Order
Notwithstanding the foregoing, Attacher may disclose Confidential Information to the
extent that disclosure is required by a court or other governmental agency of competent
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jurisdiction, provided that Attacher shall provide notice to KCP&L of the request for such
disclosure promptly upon receiving it.
4.5 Irreparable Harm
Attacher acknowledges that tY�e breach of any of the covenants contaiued in this Section
will result in irreparable harin and continuing damages to KCP&L and KCP&L's business, and
that KCP&L's remedy at law for any such breach or threatened breach would be inadequate.
Accordingly, in addiUon to such remedies as may be available to KCP&L at law or in equity in
the event of any such breach, any court of competentjurisdiction may issue an injunction (both
preliminary and permanent), wiChout bond, enjoining and restricting the breach of such
convenant, including, but not limitcd to, an injunction restraining Attacher from disclosing, in
whole or part, any Confidential Information. Attacher shall pay all of KCP&L's costs and
expenses, including reasonable attorney's fees and accountant's fees, incuned for enforcing such
covenants.
4.6 Ownership of Confidential Information
KCP&L shall be the owner of all Confidential Information that is developed, created,
conceived, reduced to practice, or authored by KCP&L.
This Section 4 shall survive the termin�tion of this Agreement.
Section 5. KCP&L Utilitv Oblieations
51 Supremacy
KCP&L has been granted the rights to construct, operate and maintain the KCP&L
Facilities under its eleetric utiliry franchises. This Agreement a�d the rights granted therein to
Attacher are subordinate to KCP&L's franchises, including but not limited to the installarion,
operation, repair and replacement of any and all KCP&L Facilities in a manner that will enable
KCP&L to fulfill its franchise obligations. Any actions or activities conducted by Attacher or
any failure to act by Attacher which, in the opinion of KCP&L, compromise KCP&L's
franchises or otherwise obstrucC, impair or negatively affect KCP&L's ability to fulfill its electric
utility obligations shall be deemed an Event of Default under this Agreement.
Nothing in this Agreement shall in any way restrict, modify, or alter KCP&L's sole and
absolute right to use KCP&L Facilities in a manner consistent with its electric utility business.
In addition, nothing contained herein shall be construed to compel KCP&L to acquire, construct,
retain or maintain any of the KCP&L Facilities or other equipment in any manner not required
by its electric utility franchises and electric utility business.
5.2 Reserved Space
KCP&L may reserve space and loading capacity on KCP&L Facilities for its future use
as set out in the KCP&L Distribution SysYem Infrastructure UCilization Plan ("Utilization Plan")
which may be amended from time to time by KCP&L. KCP&L may reclaim reserved space
identified by the Utilization Plan upon sixty (60) days written notice to Attacher. Attacher shall,
at its own expense, remove Attacher Facilities as requested by KCP&L. If Attacher desires to
have KCP&L expand the capacity of the subject KCP&L Facilities, at Attaeher's expense, in
order to accommodate Attacher in maintaining Attacher Faciliries, Attacher may submit a written
request to KCP&L and upon KCP&L's determination of the feasibiliry of such request, Attacher
and KCP&L may enter into a separate agreement.
Section 6. Franchise and Other Re ulatorv Requirements
� Attacher covenants to KCP&L that it will obtain and mlintain all the authority,
franchises, consents, easements, and/or rights-of-way from federal, state, municipal and any
other authorities necessary and required to construct, own and operate Attacher Facilities.
Attacher also covenants to KCP&L that it has obtained all neccssary consents, easements, and/or
rights-of-way from private property owners for the use of their rights-of-way. Attacher shall
provide KCP&L with a copy of any and all such franchises, consents, easements and/or rights-
of-way upon request.
In the event any franchise, license, permit, consent or easement held by Attacher is
revoked, or is herelfter denied to Attacher for any reason, in whole or in part, Attacher's rights
hereunder shall immediately terminate to such extent, and Attacher shall within a reasonable
amount of time remove such equipment from KCP&L's poles as may be required to comply with
revocation or denial. In such case KCP&L may, at it's option, terminate this Agreement in it's
entirety. Attacher must provide KCP&L written notice of revocation or denial of any franchise,
license, permit, consent or easement held by Attacher.
Section 7. New Attachments
7.1 Right to Attach
The right Co attach Attacher Facilities to KCP&L Facilities shall be nonexclusive and
nondiscriminatory. An Applicarion for attdchment will be reviewed and approved on a first-
come, first-served basis and subject to adequate surplus space bcing available far Attacher
Facilities. Furlhermore, the right to attach shall be subordinate to the provisions of any mortgage
indenture of KCY&L, and to all easements, rights, privileges, licenses, or grants of whatever
nature heretofore given by KCP&L or its predecessors in interest, which now exist and which
affeet the KCP&L Facilities such as but not limited to drainage rights, streets, roadways, other
communication facilities, underground conduits, sewers, manholes or pipes. Failure by Attacher
to obtain any necessary or additional rights, specific to attaching Attacher Facilities on KCP&L
Facilities, will be cause for KCP&L to deny Applications for attachments and/or require the
immediate removal of any attachments for which any necessary or addirional rights do not exist.
7.2 Applications and Make Ready
Attacher shall submit an Application in accordance with the procedures set out in
KCP&L's Construction Standards for each proposed Attacher Facility. The Application,
KCP&L Form No. 252H007 ("Application"), a copy of which is attached hereto, may be
amended from time to time by KCP&L. Under no circumstance my Attacher add new
attachments without a written permit from KCP&L.
Upon receipt of an Application from Attacher, KCP&L will review, at Attdcher's sole
expense, the Application to determine if the proposed Attacher Facilities comply with KCP&L's
Construction Standards controlling the joint use of KCP&L Facilities, which may be amended
from time to time and is attached hereto, the National Eleetrical Safety Code ("NESC"), and
other applicable safety codes. Attacher shall bc responsible for all costs associated with planning
and analysis work regarding proposed Attacher Facilities. KCP&L shall use its best efforts to
either approve or deny the Application within forty-five (45) days of receipt of the Application.
In the event that adequate surplus sp�ce is not available for Attacher Facilities, but such
space could be achieved by rearranging existing facilities thereon, KCP&L shall determine the
feasibility of such rearrangement in its review of the Application. If such rearrangement is
approved and involves KCP&L equipment, KCP�L shall do the work at the sole expense of
Attdcher. In the event that the make ready work requires a third party attached to KCP&L
Facilities to accommodate Attacher Faeilities by rearranging or transferring the third party's
eyuipment, KCP&L shall do the work at the sole expense of Attacher for each and every affected
third party. If a third party participates in, takes advantage of or otherwise benefits from the
make ready work, Attacher may charge the third party a pro rata portion of the make ready costs.
Attacher shall not attach any Attacher Facilities to KCP&L Facilities until the make ready work
is complete and approved by KCP&L as part of an inspection.
Attacher shall become a participating member of the National Joint Use Notification
System ("NJUNS") to facilitate required notices, including, but not limited to, any need to
modify or transfer facilities.
In the event adequate surplus spaee is not available and such space could not be created
by rearrangement of existing facilities thereon at Attacher's expense, then KCP&L reserves the
right to deny access for reasons of insufficient capacity pursuant to 47 U.S.C. � 224(�(2). If
A�tacher desires to have KCP&L expand the capacity of the subject KCP&L Facilities, at
Attacher's expense, to accommodate Attacher's request for attachment of new Attacher
Facilities, Attacher may submit a written request to KCP&L and upon KCP&L's de�ermination
of feasibility of such request, Attacher and KCP&L may enter into a separate agreemenc.
7.3 Access to KCP&L Facilities
Upon KCP&L's approval of Attacher's Application for Attachment, KCP&L shall permit
Attacher's employees, agents and contractors to enter KCP&L Facilities, as established by
KCPBcL, in order to attach, install, maintain and remove Attacher Facilities. Any and all such
access is conditioned on compliance by Attacher and its employees, agents and contractors with
all applicable rules and regulations for protecting worker safety in hazardous work environments
including, but not limited to, rules and regulations of KCP&L and the Occupational Safety and
Health Administration ("OSHA"). KCP&L shall have the right, but not the obligation, to
con�inuously monitor any and all such entry at Attacher's sole expense.
7.4 Installations
Attacher shall, at its own expense, design, engineer, attach, install and maintain Attacher
Facilities or procure and pay contract services to do any or all of these functions, and both parties
understand and agree that Attacher shall perform said functions in compliance with the
procedures set out in KCP&L's Constructio❑ Standards, which may be amended rrom time to
time, the National Electric Safety Code (NESC), and other applicable safety code�s. Attacher
einployees or contract services employed by Attacher who come in contact with KCY&L
Facilities for any puipose whatsoever shall have the appropriate level of training and expertise as
rcquired to perform the necessary wark. Attacher shall maintain a list of contractors which it
approves to perform work on Attacher's Attachments, which list shall be provided to KCP&L
and Attacher shall provide to KCP&L an updated list at any time there is a change in the
contractors approved to perform work on Attacher's Attachments.
Attacher shall install and maintain it's Facilities so as to not interfere with KCP&L usage
of poles. Interference shall solely be determined by KCP&L. Attacher specifically understands
that KCP&L poles must be safely climbable, and standards regarding climbing may change. At
the time of signing this contract KCP&L utilizes the Buckingham Manufacturer climber safety
devices and all installations must be compatible with this device.
7.5 Laws, Rules and Regulations
Attacher shall at all times install, maintain and remove Attacher Facilities in aeeordance
with the requirements and specifications of all applicable federal, state and local laws, ineluding
rules a�d regulations adopted pursuant thereto, including but not limited to OSHA, the NESC,
KCP&L's Construction St�lndards, as the same may be amended and updated from time to time,
as well as such other reasonably necessary rules as may be set forth from time to time by
KCP&L. Compliance to be determined at sole interpretation of KCP&L. If attacher is fou�d to
be out of compliance with KCP&L standards, at KCP&L sole discretion, attacher will either
remedy the compliance issue, or KCP&L will remedy the compliance issue and invoice attacher,
at sole option of KCP&L.
7.6 Inspection of Installations
KCP&L has the right, but not an obligation, to inspect any Attacber Facilities on KCP&L
Faeilities prior to and during installation, and to make periodic inspections of such At�acher
Facilities after installation. If KCP&L discovers that Attacher Facilities are not installed
according to the terms and conditions set out in this Agreement, then KCP&L has the right to
stop the work and require immediate action by Attacher to correct the installation. If Attacher
does not correct the installation KCP&L reserves the right to correct the installation at Attacher
expense. Any additional inspections conducted as part of efforts to monitor Attacher's
compfiance with the terms and condiuons se� out in this Agreement and all applicable safery
standards shall be conducted at Attache�'s sole expense. Any costs far inspections to count
attachments shall be shared as determined by KCP&L. If Attacher does not properly label
attachments KCP&L reserves the right to label the attachments at Attacher expense.
7.7 Overlashing
All overlashing, whether by the Attacher or a third party, shall be the responsibility of the
Attacher and shall be subject to the terms and conditions of this Agreement and all applicable
safety standards. Attacher shall provide KCP&L with forty-�ve (45) days advance notice for all �
overlashing. Attacher shall provide KCP&L with a statement from a Professional Engineer
certifying that the KCP&L Facilities affected by the Overlashing are cornpliant with all
applicable safety codes. Pursuant to currently existing FCC rules and regulations, overlashing
shall not increase Attacher's Annua] Attachment Fee; although, both parties understand and
agree that this condition is subject to change if the FCC's rules and regulations change or if this
Agrecment becomes subject to any state rules and regulations which permit KCP&L to increase
Attacher's Annual Attachment Fee due to overlashing.
7.8 Utility Services
Attacher may attach, install, maintain, operatc, repair, replace and remove, all at
Auacher's sole cost and expense, utilities reyuired to service Attacher Facilities attached to
KCY&L Facilities, with the exception that Attacher Facilities must be energized and de-
energized by KCP&L yualified personncl. Utiliry services installed by Attacher on KCP&L
Facilities shall meet all applicable federal, state, and local laws, statutes, regulations, ordinances,
rules and other requirements. Utility service by KCP&L shall be provided pursuant to KCP&L's
General Rules and Regulations in effect and on file from rime to time with the Commission.
Utitity service by KCP&L shall be metered.
7.9 Charges
All costs incurred by KCP&L in accommodating Attacher Faciliries under this Section
are recoverable from Attacher. The Attacher must pay said amount within thirty (30) days of
invoice date.
In the event Attacher disagrees with any amount charged by KCP&L pursuant to this
Agreement, Attacher has thircy (30) days to provide KCP&L with a detailed written objection to
said amount or Attacher will lose the right to challenge the charge in question. Attacher must
pay all undisputed amounts within thirty (30) days of invoice date. The parties agree Co work in
good faith to resolve any disputes concerning bills or invoices issued under this Agreement.
Section 8. Existina Attachments
8.1 Maintenance by KCP&L
KCP�L will not be requircd to provide notice for KCP&L Facilities modifications made
by reason of emergency or routine maintenance activiries but shall provide sixty (60) days
advance notice for non-routine maintenance. If Attacher uses the opportunity of KCP&L's
modificauons to a facility to benefit Attacher's Attachments, Attacher shall pay a pro rata share
of the modifleation eosts. Where KCP&L must replace or relocate KCP&L Faeilities and such
replacement ar relocation is not caused by the addition of a ncw Attachment, an emergency or
routine maintenance, KCP&L shall provide Attacher reasonable advance notice before
undertaking such replacement or relocation. Attacher shall transfer its Attachments within ten
(10) days of receiving notice that the new KCP&L Facilities are in place. If Attaeher does not
transfer its Attachments within such ten (10) days, then KCP&L may transfer Attacher's
Attachments at Attacher's expense. If KCP&L or another party is required co make a return trip
to remove KCP&L Facilities or perform other services as a result of Attacher's failure to transfer
its Attachments within the time period set forth herein, then Attacher shall reimburse KCP&L or
such third party for the cost incurred by such return trip.
Attacher shall become a participating member of the National Joint Use Notification
System ("NJUNS") to facilitate required notices, including, but not limited to, any need to
modify or transfer facilities.
ln the event that any modification results in excess capacity, KCP&L shall retain the
same as its exclusive property with all rights reserved.
8.2 Make Ready for Third Party
In the event that a third party applies to make attachment to KCP&L Facilities and such
attachment will require Attacher to rearrange or trai�sfer Attacher FaciliCies, Attacher shall be
required to accommodate the third party only after the third party has agreed to pay far the entire
expense thereby incurred. If Attacher participates in, takes advantage of or otherwise benefits
from the make ready work, Attacher will be required to pay its costs of rearrangement or transfer
and pay a pro rata portion of any make ready costs incurred by KCP&L.
8.3 Access to KCP&L Facilities and Requirements for Maintenance,
Modifications, Removals or Replacements by Attacher
Any and all access to KCP&L Facilities is conditioned on compliance by Attacher and its
employees, agents and contractors with all applicable rules and regulations for protecting worker
safety in hazardous work environments including, but not limiled to, rules and reguletions of
KCP&L and the Occupational Safety and Health Administration ("OSHA"). KCP&L shall have
the right, but not the obligation, to conrinuously monitor any and all such entry at Attacher's sole
expense. Upon KCP&L's receipt of Attacher's reasonable advance written documentation,
KCP&L shall permit Attacher's employees, agents and contractors to enter KCP&L Facilities, as
established by KCP&L, in order lo ettach, install, maintain and remove Attacher Facilities.
Attacher shall provide reasonable advance written notice of its intent to perform
maintenance on Attacher Facilities attached to KCP&L Facilities. Such notice shall include, but
not be limited to, the anticipated times and dates of entry and the nature of the work to be
performed. KCP&L shall prompdy review such notices and provide an appropriate response.
Attacher will from time to time need to modify, remove or replaee Attacher Facilities.
All costs associated to perform and complete said activities shall be at Attacher's expense.
Attacher shall submit to KCP&L an Application for proposed modifications, removals or
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replacements, including required infonnation For the proposed activity to dctermine if any �
modification, removal or rcplacement of Attacher Facilities may have a materill adverse effect
on KCP&L Facilities. KCP&L shall use its best efforts to either approve or deny the Application
within forty-five (45) days of receipt of the Application.
Attacher shall, at its own expense, install all Attacbments in a safe condition and maintain
the same in good repair, and any reasonable manner suitable to KCP&L so as not to conflict with
the use of said Pole by KCP&L or thud parties, or interfere with the use of facilities thereon or
which from time to time may be placed thereon. Attacher shall inspect its Attachments on a
routine basis, in accordance with �1ESC requirements and KCP&L Construction Standards, in
order to ensure compliance with the terms of this Agreement.
Any and all access to KCP&L Facilities, new or existing, is conditioned upon adequate
surplus space; therefore, both parties understand and agree that the status of adeyuate surplus
space may change at any time under the terms and conditions of this Agreement, for reasons
including, but not limited to, KCP&L's electric utility franchise agreement obligations, as well
as, civic projects requiring KCP&L to modify its Faeilities.
8.4 Emergency Contact Information
The parties' respective emergency phone numbers are as follows:
KCP&L: 816-654-1262
Attacher: 816-741-3993
Each party shall promptly notify the other of any changc in such party's emergeney
phone number.
8.5 Facilities Out of Service
At such time as Attacher Facilities no longer provide service, or are no longer
essential to Attacher in order to meet its current customer obligations, all such facilities
must be removed from KCP&L Facilities at Attacher's expense. Furthermore, any facilities
attached to KCP&L Facilities solely to serve Attacher Facilities that are no longer in service or
essential in order to meet Attacher's current cusCOmer obligations must be removed at Attacher's
expense. Attacher shall submit to KCP&L an Application for removal of Attacher Facilities,
including reyuired information for such removal.
Under no circumstance will Attacher leave unused Facilities on KCP&L poles or Rights
of Way. Attacher grants KCP&L the right to remove any unused Attacher equipment, cables,
power supplies or antennas of any type and dispose of such in any fashion KCP&L sees fit. If
any Attacher equipment, power, cableti, power supplies, or antennas do not have power
connected that will suitable proof of non use. Attacher will provide appropriate evidence of
system usage within 30 days of request of KCP&L for such evidence. Appropriate evidence to
be determined solely by KCP&L. If Attacher does not provide written evidence as requested that
shall be sufficient proof of non use.
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8.6 Damage
Attacher shall immediately notify KCP&L at 816-654-1262 of any damage to KCP&L
Facilipes arising out of the presence of Attacher Facilities or operations, followed by written
notification promptly thereafter to the Contract Administrator at the address provided in Section
15.7 of this Agreement In an emergency situaUon, Attacher shall comply with the notification
reyuirements set forth above, as well as, provide immediate notification by facsimile
transmission to the Contract Administrator as set forth in Section 15.7 of this Agreement.
KCP&L shall repair the damage to its Facilities and charge Attacher for the loaded cost of the
repairs. Attacher shall avoid any interference wiCh KCP&L facilities or operations.
8.7 Maps and Records
Attacher shall maintain accurate maps and records of Attacher Facilities attached to
KCP&L Facilities under this Agreement. Attacher shall provide KCP&L with information and
documents, including but not limited to, records and Attacher's maps identifying the loeation of
Attacher Facilities attached to KCP&L Facilities, and whether eaeh Attacher Facility is an
attachment by a cable television system used solely to provide cable service pursuant to 47
U.S.C. § 224(d) or is an attachment used ro provide telecommunications services pursuant to 47
U.S.C. § 224(e), within ten (]0) days of a request by KCP&L.
8.8 Charges
All costs incurred by KCP&L in accommodating Attacher Facilities under this Section
are recoverable from Attdcher. Attacher must pay said amount within thirty (30) days of invoice
date.
In the event Attacher disagrees with any amount charged by KCP&L pursuant to this
Agreement, Attacher has thirty (30) days to provide KCP&L with a detailed written objection to
said amount ar Attacher will lose the right to challcnge the charge in question. Attacher must
pay all undisputed amounts within thirty (30) days of invoice date. The parties agree to work in
good faith to resolve any disputes concerning bills or invoices issued under this Agreement.
Section 9. Fees
9.1 Compensation and Billing for Services
Attacher shall pay for the services performed by KCP&L. Such fees are for services
whose costs are not recovered through the Annual Rate defined in Section 9.3 below. There is
no limitation on thc amount of time, which may elapse between the provision of services and the
date of invoice far such services by KCP&L.
9.2 Status Veri�ication
To cause KCP&L to enter into this Agreement, Attacher has delivered to KCP&L a
statement certifying Attacher's status as either a"cable television system" or a
"telecommunications carrier" as those terms are used in the Pole Attachments Aet, 47 U,S.C.
§ 224. Such statement shall be verified by an officer of Attacher and supported by such
documents, information and other items as KCP&L may request. Following execution of the
Agreement, Attacher must provide KCP&L with another statement if there is a change in status.
9.3 Annual Attachment Fees
The term "Annual Rate" shall mean the annual charge in effcct for Attacher Facilities
attached to KCP&L Facilities as established and approved by the FCC, or any other federal or
state regulatory agency authorized to establish such rates, from time to time. The Annual Rates
in effect on tl�e date of this Agree�ment for "telecommuuications carriers" and "cable television
systems" as those terins are used in the Pole Attachments Act, 47 U.S.C. § 224, are $29.55 and
$1�.82, respectively. Unless otherwise determined by a regulatory agency to the contrary, the
parties stipulate that Attacher shall be assessed at the Annual Rate established for cable
television systems. KCP&L may recalculate and revise such rates and costs as set forth herein.
Additional Annual Rents will apply toward any additional boxes, brackets, and antennas, or other
apparatus owned, used or installed by Attacher.
9.4 Annual Fee Payment Cycle
Attacber shall be billed in advanec annually Yor each Attacher Facility aTtached during the
calendar year; although, both parties understand and agree that upon KCP&L's determination
and at any time during the term of this Agreement, KCP&L shall have lhe right, but not the
obligation, to bill Attacher in advance semi-annually for each Attacher Facility attached during
the calendar year. In the event Attacher is billed on a semi-annual basis, for Attacher Facilities
that are authorized during any part of the first six (6) months of the annual rental period, the
Annual Rate will be assessed for the entire annual rental period. Far Attacher Facilities
authorized during any part of the second six (6) months of the annual rental period, the Annual
Rate shall be reduced by fifty percent (50%) for that first annual rental period. KCP&L may
invoice Attacher for Attachments authorized during the annual rental period at any time after the
Appiication for such Attachment is approved. Payment of an invoice is due within thirty (30)
days of the date of the invoice. In the event Attacher disagrees with any amount chargetl by
KCP&L pursuant to this Agreement, Attacher has thirty (30) days to provide KCP&L with a
detailed written objection to said amount or Attacher will lose the right to challenge the charge in
question. Attacher must pay a11 undisputed amounts within �hirty (30) days of invoice date. The
parties agree to wark in good faith to resolve any disputes concerning bills ar invoices issued
under this Agreement.
9.5 Scheduled Audits
KCP&L may conduct field audits to verify the number of KCP&L Facilities to which
Attacher Facilities are attached, which includes the counting of Attacher Facilities and verifying
the classification of Attacher Facilities, not more than once in a�ry five (5) year period. Attacher
shall pay KCP&L for its pro rata share of all reasonable market based costs incurred by KCP&L
to conduct the audit. KCP&L shall give Attacher sixty (60) days advance notice of such audit
�. _ _ , - -
and provide Attacher with an opportunity to review and comment on KCPL's audit plan. If an
audit by KCP&L discloses a� understatement in the number of Attac�her Faciliries billed,
Attacher shall immediately pay to KCP&L any deficiency in past paymen�s of fees and other
amounts due KCP&L under this Agreement, plus late charges and interest as provide�l elsewhere
in this Agreement. Deficiencies in payments and other associated assessments shall be charged
back to the date of the most recent prior audit unless it can be shown that the deficiency precedes
that date.
9.6 Other Audits
KCP&L may conduct a field audit prior to the five (5) years elapsing after the previous
audit to verify the number of KCP&L Facilities to which Attacher Facilities xre attached.
Attacher shall have no obligacion to reimburse KCP&L for tt�e reasonable costs incurred by
KCP&L to conduct thc audit.
9.7 Unauthorized Attachment Fee
If Attacher Facilities are installed, but not authorized by KCP&L in accardance with the
terms of this Agreement, Attacher agrees to pay for any and all such unauthorized attachments a
penalty of five (5) times the Annual Rate or the Annual Rate multiplied by the number of years
since the last audit, whichever is great�er. The Annual Rates in effect on the date of this
Agreement for "telecommunications carriers" and "cable television systems" as those terms nre
used in the Pole Attachments Act, 47 U.S.C. § 224, are set forth in the Appendices to this
Agreement. KCP&L may recalculaCe and revise such rates and costs annually. Attacher agrees
to pay amounts owed under this Section within ten (10) days following receipt of written notice
by KCP&L. [n addition, Attacher shalf promptly, and in no event later than thirty (30) days
following wriuen notice by KCP&L, submit an Application far approval of' the unauthorized
attachment(s). Attacher shall be obligated to comply with the same Application procedures as
stated in Section 7.2 of this Agreement. The parties agree that KCP&L will not process pending
or additional Applications by Attacher until Attacher has paid all outstanding unauthorired
attachment penalties.
9.8 Taxes
Attacher shall reimburse KCP&L for any taxes, fees or other charges which KCP&L is
required or obligated to pay as a result of Attacher Facilities located on KCP&L Facilities or
services rendered by KCP&L to Attacher under this Agreement. KCP&L shall not allocate to
Attacher any o( KCP&L's present or future taxes, fees, charges or assessments for which
KCP&L would be liable regardless of Attachcr's use of KCP�L Facilities.
9.9 Late Charges
Attacher acknowledges that late payment of any fee or other amounts due to KCP&L
under this Agreement will cause KCP&L to incur certain administrative, processing dnd
accounting costs not otherwise contemplated by this Agreement, the exact amount of which will
be extremely difficult, if not impossible, to ascertain. If any fee or other amount due under this
��-_ _.,.,�,..:.._.,:Y...,.�...v.,�._._..._-,�, �- .
Agreement is not received by KCP&L within thirty (30) days after Attacher receives an invoice
from KCP&L, Attacher shal] pay to KCP&L a late charge, eyual to two percent (2%) of such
overdue amounts as a reasonable estimate of the administrative, processing and accounting costs
KCP&L will incur by reason of late payment by Attacher. Payment of such late charge shall in
no event excuse or cure any Event of Default under or breach of this Agreement by Attacher.
9.10 Interest
Attacher shall pay to KCP&L interest, compounded daily, at the rate of one and one half
percent (1'/z%) per month or the maximum rate permitted by applicab]e law, whichever is less,
on any fees or other amounts due hereunder, not paid to KCP&L when due under this
Agreement, from the date due until the date paid. Payment oP such interest shall not excuse or
cure any breach of or Event of Default under this Agreement by Attacher.
Section 10. Release. Indemnitv Hold Harmless and Limitation of Liabilitv
To the extent permitted by the laws of the State of Missouri, Attacher will be responsible
for its agents and employecs acts and omissions within the scope of their duties which cause
injury to persons or property. Nothing herein shall be deemed as a waiver of sovereign
immunity or any other defense available to Attacher or its agents ar employees. In connection
with all construction and maintenance activities, Attacher shall provide KCP&L with a
certificate of its liability insurance coverage as set forth in Section 11. In addition, Attacher
hereby releases KCP&L and all of its officers, agents and employees from any loss, damage,
liability or cost on account of damage to property and injuries, including death, to all persons,
including but not limited to, employees of Attacher and employees of KCP&L which may arise
out of, result from or in any manner be caused by or related to the attachment, installation,
maintenance, presence, use or removal of Attacher Facilides on KCP&L Facilities; on account of
loss or infringement of copyright, patent, trade secret or other intellectual property rights, libel,
slander or unauthorized use of information arising out of, resulting from or in any manncr caused
by the operauon or use of Attacher Facilities; on account of Attacher's failure to secure
necessary authority, franchises, consents and easements from federal, state and municipal
authorities and any necessary rights-of-way from owners of property; and on account of
infringement of patcnts with respect to the manufacture, use and operatioi� of Attacher Facilities
in combination with KCP&L Facilities or otherwise. Both parties understand and agree that the
obligations of this paragraph shall not apply to the extent such loss, damage, liability or cost was
caused by the negligence, intentional act or other fault attributable to solely KCP&L.
This Section 1a shall survive the termination of this Agreement.
Section 11. Insurance and Credit ReQUirements
ll.l Insurance and Credit Requirements
Attacher shall maintain in force throughout the term of this Agreement General Liability
insurance in the amount established by Section 537.610 RSMo, as amended, and shall name
KCP&L as an addiCional insured on such policy. At the time of execution of this agreement, the
�.�__... _
amount of' such insurance calculated by the Missouri Director of Insurance and published by the
Secretary of State in the Missouri Register is $2,509,186.40 for all claims arising out of a single
accident or occurrence and $376,378.00 far any one person in a single accident or occurrcnce.
In order to determine the creditworthiness of the Attacher, KCP&L may request tlie
Attacher's audited financial statements that are not consolidated with other entities ("Financial
Statements") and Attacher shall provide relevant audited Financial Statements on an annual
basis. Attacher shall furnish to KCP&L a cash deposit or Payment Bond ("Financial
Securement") in a form and amount sufficient to guarantee the payment of any sums which may
become due to KCP&L and payable by Attacher pursuant to this Agreement. Attacher's
Fi�ancial Statements may be a component in KCP&L's analysis and determination of a
sufficient Payment Bond or Irrevocable Letter of Credit amount. Absent of KCP&L's receipt of
Attacher's Financial Statements, and therefore impeding KCP&L's ability to perform adequate
risk assessment, KCP&L may require a larger Payment Bond. The initial cash deposit amount
required shall be $0, with a$0 Payment Bond, however the amount of cash deposit or
Payment Bond shall be modified, either upward or downward, at any time upon the
reasonable request of KCP&L. Attachcr shall, within 10 business days and prior to submitting
an Application to make attachment of any Attacher Facilities, deliver evidence setisfactory to
KCP&L of such Payment in a form and by an insurance compeny or financial institution
acceptable to KCP&L. Without limiting the faregoing, Attacher shall provide KCP&L with
evidence of annual renewal, not less than thirty (30) days of expiration, of existing Certificate of
Insurance, and Payment. Additionally, Attacher shall provide KCP&L with written notice of any
change in, cancellation of, or termination of insurance coverage and/or Financial Securement at
least thirty (30) days before such change, cancellarion or terminauon is effective. Attaeher shall
provide to KCP&L a Yayment Bond with original signatures, and Certificate of Insurance to
KCP&L at the following address:
Kansas City Power & Light Company
Resource Management, F&M
Atm: Contract Administrator
PO Box 418679
Kansas City, Missouri 64141-9679
11.2 Risk of Loss
Attacher shall be responsible for and shall bear any and all risk of loss, deterioration,
theft, vandalism or destruction of or damage to Attacher Facilities and anything used (or to be
used or consumed) in connection with the installation, maintenance or removal of Attacher
Facilities.
This Section 1 I sball survive the termination of this AgreemenC.
Section 12. Liens
Attacher must keep KCP&L Facilities free from any liens arising from any work
performed, materials furnished or obligations incurred by or at the request of Attacher. If any
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lien is fiLed against KCP&L Facilities as a result of the acts or omissions of Attacher, or
Attacher's employees, agents or coi�tractors, Attacher must discharge the lien or make
arrangements to otherwise remove the lien within thirty (30) days after Attacher receives written
notice that a lien has been filed. If Attacher fails to discharge or otherwise remove a lien within
the time provided, then in addition to any other right ar remedy of KCP&L, KCP&L may, at its
discretion, discharge or otherwise remove the lien. Attacher must pay on demand any amount
paid by KCP&L for the discharge or satisfaction of such lien, including reasonable attorneys'
fees and other assessments chargeable under the terms of this Agreement.
Section 13. Assienment and FinancinQ
13.1 Assignment
Neither this Agreement nar any interest in it shall be assigned or transferred by Attacher
without the prior wrilten consent of KCP&L. Any assignment in violation of this section, by
operation of law or otherwise, shall be void from the beginning. In any event, no assignmenl of
this Agreement shall relieve Attacher from any of its liabilities or obligations under this
Agreement. Subject to the foregoing restrictions on assignments without the prior written
consent of KCP&L, this Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by tbe successors and assigns of the respective parties hereto.
13.2 Financing Requirements
To finance the construction, operation and maintenance of the Attacher Facilities,
Attacher may enter into security agreements with lenders. Those lenders may require a first lien
seeurity interest in Attacher Facilities. To the extent reasonably necessary as requested by any
Attacher lender, KCP&L will comply with such lender's reyuests, including the assignment by
Attacher of this Agreement in form and substance acceptable to KCP&L, providing notice to the
lender in the event of an Attacher default under this Agreement and providing a thirty (30) day
right to cure (which cure period shall nin contemporaneously with any cure period provided to
Attacher herein) to the lender prior to termination. In the event of a sale under any securiry
agreement, or a taking of possession of the Attacher Facilities by thc security holder or other
person acting for or through the security holder under any financing agreement secured by
Attacher Facilities, then upon the hdppening of such events, KCP&L shall recognize as the
successar to Attacher hereunder the party who has assumed the rights and obligations of
Attacher. KCP&L reserves the right to approve such assignee or purchaser prior to any
assignment or purchase.
Section 14. Events of Default
14.1 Events of Default
Upon notice to Attacher and expiration of time to cure, KCP&L shall have the right t�o
terminate this Agreement if there is an Event of Default by Attacher. The following shall
constitute an Event of Default by Attacher:
� _.e
a. The failure to pay any and all fees and compensation to KCP&L within thirty (30)
days of invoice date, or as otherwise defined in the Charges and Annual Fee
Payment Sections of rhis Agreement; and, both parties understand and agree that
KCP&L has the sole right to declare when good faith resolution efforts between
KCP&L and Attacher are deemed exhaustive;
b. The breach of any material covenant or warranty made by provisions of this
Agreement;
c. The presence, use or maintenance of Attacher Facilities in eontravention of any
statute, regulation, ordinance, act of a government authority or contrary to the
terms of this Agreement;
d. The cancellaUon or revoeation of insurance policies required by this Agreement
without replacement of the c�overage afforded by such policies by an insurance
underwriter hdving a Bests rating equivalent to that of the previous underwriter;
e. The cancellation or revocation of the Payment Bond or Irrevocable Letter of
Credit required by this Agreement without replacement in a form and amount
satisfactory to KCP&L;
f. [f any federal, state or municipal authority revokes the authority, franchises,
consents or easements necessary for Attacher to construct or operate Attacher
Facilities;
g. A coun of competent jurisdiction issues an order preventing Attacher from
operating Attacher Facilities; or
h. Attacher becomes insolvent, makes an assigmncnt for the benefit of creditors or
becomes the subject of any petition or order in bankruptcy, whether voluntary or
involuntary, or in any other proceeding under any bankruptcy, insolvency or
receivership law.
14.2 Cure Period
With respect to any Event of Defauit by Attacher, KCP&L shall notify Attacher in
writing of the occurrence of a said Event of Default; although, both parties understand and agree
that Attacher shall be responsible for notifying KCP&L when an Event of Default as set foRh in
Section 14.1 (c), (d), (e), (fl, (g) and (h) has occurred. In such instance of any Event of Default, ��
Attacher shall cure any default within thirty (30) days of such notice, or if both parties agree that �
the cure of the default requires a period in excess of thirty (34) days, the Attacher shall �
commence, in good fdith, activities required Co effect a cure and diligently prosecute such
activities; although both parties understand and agree that in the event of a failure to pay fees and
compensation due, Attacher shall pay the amount due and any other assessments chargeable on
such outstanding amounts as required under this Agreement. Absent of KCP&L's agreement to
extend the stated cure period, if any Event oi' Default is not cured within thirty (30) days of such
notice, KCP&L shall have the right to suspend the review and processing of pending or new
Applications for Attachment, and with the exception of safety issues that require Attacher's
immediate action, suspend Attacher's access to KCP&L Facilities as described in the procedures
set out in this Agreement. Upon cure of any Event of Default, KCP&L shall resume the review
and processing of pending or new Applications for Attachment, and resume the process for
Attacher to access KCP&L Facilities as described in the procedures set out in this Agreement.
Section 15. Miscellaneous
15.1 Applicability of Communications Act
Attacher warrants and represents that this Agreement and Attacher's proposed
attachments to KCP&L Facilities are currently governed by the provisions of the Pole
Attachments Act, 47 U.S.C. § 224. If it should be determined by a court of competent
jurisdiction that Attacher, any of its attachments to KCP&L Faciliries, or this Agreement is not
governed by the Pole Attachments Act, 47 U.S.C. § 224 or are not governed by applicable state
law, should such state law be deemed controlling at some future time, KCP&L shall have the
right to terrninate this Agreement upon thirty (30) days written notice.
15.2 Waiver of Compliance
Failure of KCP&L to enforce or insist upon compliance with any of the terms or
conditions of this Agreement shall not constitute a waiver or relinquishment of any such terms ar
conditions. To the contrary, the same shall remain at all times in full force and effect.
15.3 Regulatory Approvals
Each party shall be authorized to submit this Agreement to the regul�tory agencies
having jurisdiction over such party and shall take such actions as may be reasonably required to
promptly satisfy any reyuired approvals or other actions by such agencies.
15.4 Modification uf Agreement
Any amendment to this Agreement must be in writing and signed by both parties.
15.5 Only Agreement
This agreement sets fonh the entire agreement of the parties and supersedes any and all
prior agreements with respect to the attachment of Attacher Facilities to KCP&L Facilities.
15.6 Severability
In lhe event that any term or provision of this Agreement is declared to be illegel, invalid
or unconstitutional, then that provision shall be deemed to be deleted. All other terms or
provisions of this Agreement shall remain at all times in full force and effect.
-
���I w�.'
�J.7 NOtICCS
Any notice from one parry to another under this Agreement shall be a written notice sent
by the United Sta�es mail, certified mail, with return receipt requested and postage prepaid, or by
a nationally recognized overnight courier (i.e. Federal Express), with proof of delivery. In an
emergency situation, notice may be provided by facsimile transmission followed by writren
notice as set forth above.
Nouce to Attacher Shall be addressed as follows:
City of Riverside
2950 N.W. Vivion Road
Riverside, MO 64150
Notice to KCP&L shall be addressed as tbllows:
Kansas City Power & Light Company
Resource Management, F&M
Attn: Contract Administrator
PO Box 418679
Kansas City, Missouri 64 1 41-9679
Each party may change its address or designated representative for purposes of this
section at any time by written notice to the other party.
15.8 Survival
All provisions of this Agreement, which may reasonably be interpreted or construed as
surviving the termination or cancellation of this Agreement, shall be deemed to do so.
15.9 Ownership
No use, however, extended, of KCP&L Facilities under this Agreement shall create or
vest in Attacher any ownership or property right in KCP&L Facilities.
15.10 Mutual Authorship
This Agreement shall be construed as if drafted jointly by the parties and no adverse
impacts shall be presumed by virtue of the authorship of any term or provision.
15.11 Examination of Records
Attacher shall promptly furnish KCP&L with such information related to Attacher
Facilities as may from time to time be requcsted by KCP&L. KCP&L shall have access �o and
the right to examine and copy all of Attacher's books, documents, papers and records related to
Attacher Fdcilities or this Agreement for three (3) years after the termination of this Agreement.
�
This Section 15.11 shall survive the term of this Agreement �'
15.12 Estoppel Certi�cates
KCP&L shall as reasonably reyuested, upon a written request from Attacher, execute,
acknowledge and deliver to Attacher or its designee a written statement certifying that this
Agreement is in full force and effect and unmodified and certifying the date to which the
compensation specified hereunder has been paid, and certifying thxt there are not, to KCP&L's
knowledge, any uncured defaulls on the part of Attacher hereunder or, specifying such defaults if
any are claimed.
15.13 Third Party Rights
Nothing herein contained shall be construed as eff'ecting or limiting the rights or
privileges previously conferred by KCP&L to a third party, by contract or otherwise, to use
KCP&L Facilities, and KCP&L shall have the right to continue to extend such rights or
privileges to others.
15.14 Headings
The headings of sections and paragraphs of this Agreement are for convenience of
reference only and are not intended to restrict, affect or be of any weight in the interpretation or
construction of the provisions of such sections or paragraphs.
15.15 Force Majeure
Except as may be expressly provided otherwise, neither party shall be liable to the other
for any failure of performance hereunder due to causes beyond its reasonable control, including:
(a) acts of God, fire, explosion, vandalism, stonn, or other similar occuirences, (b) national
emergencies, insurreetions, riots, acts of terrorism, or wars; or (c) strikes, lockouts, work
stoppage, or other labor difficulties. KCP&L shall not be IiabLe to Attacher for any failure of
performance hereunder that results from KCP&L's personnel or contractors being called upon to
assist another uCiliry with the restoration of core electric utility service during a farce majeure
event. To the extent practicable, the parties shall be prompt in restoring normal conditions,
establishing new schedules and resuming operations as soon as the force majeure event causing
the failure or dclay has ceased. Each party shall promptly notify the other party of any delay in
performance under this section and its effeet on performance required under this Agreement.
15.16 Af�liate Language
Each parties Customer's affiliates may directly purchase any of the goods orservices
available under �his Agreement at the saine terms and conditions contained herein. An "affiliate"
will be defined as any entity that direcfly or indirectly controls, is controlled by, or is in common
control with Customer.
16.0. Mediation. The parties shall attempt, in good faith, to resolve all disputes. All
disputes under this Agreement in the following manner:
(a) Fither party may notify (the "Notifying Party") the other of a dispute, controversy
or claim (the "Dispute") that is subject to resolution pursuant to this 5ection 16. Within
five (5) Business Days (as defined below) after such notice is given, the project or
account inanager for each party shall meet at KCP&L's office to attempt to resolve the
Dispute. If the parties do not resolve the Dispute within twenty (20) days thereafter, the
Dispute shall be submitted to confidential mediation prior to any party bcing entitled to
initiate formal proceedings against the other party with regard to the Dispute. The
� mediation shall be conducted in the Kansas City Metropolitan Area by the Center for
Yublic Resources Institute for Dispute Resolution ("CPR") under its then current
Mediation Procedure (the "Model Procedure"). All mediators shall be selected from the
CPR Panel of Neutrals unless the parties agree to a diff'erent mediator. The mediator's
fees shall be borne equally by the parties. Any resolution of the Dispute shall be in
writing and signed by the parties. If, after the good faith attempt of the parties to resolve
the Dispute, the Dispute is not resolved in accordance with �he Model Procedure, either
party may initiate formal proceedings against the other party with regard to the Dispute.
(b) Notwithstanding the faregoing, a party may iniriate formal proceedings with
regard to any dispute, controversy ar claim (i) in order to avoid the expiration of any
applicable statute of limitatio�s period; (ii) with respect to which injunctive relief is
available under this Agreement; ar(iii) which is the subject of, or related to, a pending
lawsuit or arbitration to which either KCP&L or the Auacher is a party and under which
KCP&L or the Attacher brings a third-party action or cross-claim against the other party
hereto.
17A Annual Updates
Attacher shall annually provide to KCP&L a complete and accurate Attacher Inf'ormation
Sheet. Attacher shall annually provide to KCP&L proof of Payment Bond validity.
18.0 Allowable Equipment
Any equipment must be agreed upon by KCP&L in written form and signed by both
parties.
19.0 No Interference
In the event that the installation or operation of Attacher Facilities, or any part thereof,
interfere with telephone, telegraph, radio or television receptio❑ or other regularly used
communication or signaling arrangements, upon notification thereof by KCP&L, Attacher shall
immediately proceed to eliminate, at its expense, the cause of such interference by altering,
rearranging, or changing the installation or operation of its system. If it is determined that such
interference has been caused by improper installation or operation of Attacher's Facilities, and
the determination was made by KCP&L at its expense, Attacher, when requested by KCP&L,
shall reimburse KCP&L far any expense in connection therewith.
20. No Property Rights
Nothing herein contained shall be construed to confer upon Attacher any property rights
in KCP&L's poles or other distribution facilities, ar to compel KCP&L to maintain said poles or
other distribution facilities longer than the business of KCP&L requires in the sole judgment of
KCP&L.
21. Governing Law
This agreement shall bc governed, construed and enforced in accordance with the laws of
the State of Missouri and Federal Communications Act of 1934, as amended including, without
limitation, the Telecommunications act of 1996. The parties hereby agree to the cxclusive
jurisdiction of, as may be appropriate, the Federal Communications Commission or any state or
federal court within the Stxte of Missouri for resolution of any matters in connection with the
interpretation, construction and enforcement of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
Kansas City Power & Light Company
Name: ��t: STr. V �C
Signature: C��,G, —�C�
Title: <�►.r;Y�qcr Az�r�N.S'�A'�k.
Date: i� -i$ -�o�C1
Approved as ro Legal Form
PJV II/03lIO
KCPL Iaa� Dept.
City of Riverside
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Name: L - �a C L
SignSdture: � � � �
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� e: VL�
Date: �"/�-����
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