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NO. 17,275
AN ORDINANCE TO GRANT A FRANCHISE TO THE
STATE OF ARKANSAS TO OPERATE FIBER OPTIC
TELECOMMUNICATIONS EQUIPMENT IN THE STREETS
OF THE CITY OF LITTLE ROCK, ARKANSAS; AND
FOR OTHER PURPOSES.
WHEREAS, the State of Arkansas ( "State ") has requested a
franchise across city streets to connect fiber optics
telecommunications technology between various State agencies;
and
WHEREAS, the City of Little Rock wishes to accommodate this
request while protecting the public health, safety and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF
THE CITY OF LITTLE ROCK, ARKANSAS:
Section 1. The City grants a franchise for a period of 20
years to the State of Arkansas to use City. rights -of -way for
fiber optic telecommunications technology in the area set forth
in Exhibit A to this ordinance, subject to terms and conditions
as those substantially set forth in Exhibit .B to this ordinance.
PASSED: September 17, 1996
ATTEST:
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APPROVED AS TO FORM:
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CITY ATTORNEY
APPROVED:
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(EXHIBIT "A" - Ord. #17,275)
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M Mir M
(Exhibit .B - Ord. #17,275)
A FRANCHISE AGREEMENT BETWEEN
THE CITY OF LITTLE ROCK, ARKANSAS
AND THE STATE OF ARKANSAS
625
THIS Agreement is entered into this day of September,
1996, between the City of Little Rock, Arkansas, and the State
of Arkansas, acting through the Department of Computer Services.
W I T N E S S E T H
WHEREAS, the City of Little Rock, Arkansas, (hereafter "the
City "), recognizes the need of the State of Arkansas ( "State ")
to connect certain of its agencies with fiber optic
communications capability, and
WHEREAS, both the City and the State want to enter into an
agreement that fulfills the governmental needs of each entity,
but does not unfairly treat proprietary telecommunications
entities located within the City, and
WHEREAS, the parties agree that information services are
telecommunications services and, therefore, are utility for
which a written franchise agreement must be entered, and
WHEREAS, the City intends to exercise the full scope of its
municipal powers, including both its police power and
contracting authority, as well as the authority to control its
streets, to promote the public interest and to protect the
public health, safety and welfare,
NOW, THEREFORE, IN CONSIDERATION OF THE CONVENANTS AND
AGREEMENTS SET FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND
AGREE AS FOLLOWS:
DEFINITIONS 1. Gross Revenues -- shall mean all revenues
(exclusive of sales tax) collected by the State from operation
of the State's Network installed pursuant to this Agreement, and
any related services provided by the State within the corporate
limits of the City, including, but not limited to:
. • s
a. all intrastate telecommunications services revenues
charged on a flat rate basis; 626
b. all intrastate telecommunications services charged on a
usage sensitive or mileage basis;
C. all revenues from intrastate installation service
charges;
d. all revenues from intrastate connection or disconnection
fees;
e. all revenues from penalties or charges to intrastate
customers for checks returned from banks, net of back costs
paid;
f. all revenues from equipment sold or rented to intrastate
customers upon customer premises;
g. all revenues from any authorized intrastate rental of
conduit space;
h. all revenues from intrastate charges for access to local
and long distance networks;
i. all revenues from authorized rentals of any portion of
Company's intrastate Network, including plant, facilities, or
capacity leased to others;
j. all other revenues collected by Company from business
pursued within the City;
k. recoveries of intrastate bad debts previously written
off and revenues from the sale or assignment of bad debts.
Unrecovered bad debts charged off after diligent, unsuccessful
efforts to collect are excludable from Gross Revenues;
1. all intrastate revenues from enhanced data service;
M. all intrastate interconnect revenues from interexchange
carriers;
E
n. all revenues derived from intrastate co- location
connection fees; and 627
o. all revenues from intrastate subsidiary companies
derived from use of fiber optic network.
Notwithstanding the foregoing definition, the term Gross
Revenues shall not include interconnection services paid to a
basic local exchange carrier if that carrier has paid a
franchise fee on the collection of such revenues from the State;
further, the term Gross Revenues shall not include any of the
above listed items if the revenues received for those items are
budgeted amounts set forth in the public budget of a State
controlled agency or entity.
Network -- means the State's system of cables, wires,
lines, towers, wave guides, optic fiber, microwave, laser beams,
and any associated converters, equipment, or facilities designed
and constructed for the purpose of producing, receiving,
amplifying, or distributing, by audio, video, or other forms of
electronic signals.
2. Fiber Optic Telecommunications Network or Network -
shall mean the State's system, of cables, wires, lines, towers,
wave guides, optic fiber, microwave, laser beams, and any
associated converters, equipment, of facilities designed and
constructed for the purpose of producing, receiving, amplifying,
or distributing, by audio, video, or other forms of electronic
signals, Authorized Telecommunications Services to or from
subscribers or locations within the City. No portion of the
Fiber Optic Telecommunications Network shall constitute all or
any portion of a cable television system except with the prior
written consent of the City.
3
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3. Event of Default - The events set forth in Section 8.2
and other parts of this Franchise agreement that may be the
basis for the involuntary termination of this Franchise. 628
4. Authorized Telecommunications Services - includes
intrastate (a) services interconnecting interexchange carriers
for the purpose of voice or data transmission; (b) services
connecting interexchange carriers or competitive carriers to
telephone companies providing local exchange services for the
purpose of voice or data transmission; (c) services connecting
interexchange carriers to any entity, other than another
interexchange carrier, or telephone company providing local
exchange services, for the purpose of voice or data
transmission; (d) service providing private line point to point
service for end users for voice and data transmission; (e)
nonentertainment video, videoconferencing, or point to point
private line service; or (f) any intrastate or interstate
telecommunication services regulated by the Arkansas Public
Service Commission (PSC) which the PSC or the Federal
Communications Commission (FCC) has authorized the State to
provide, if the State has provided advance notice of same to
City, provided that this service is not basic local exchange
carrier service unless authorized by the appropriate state or
federal agency.
SECTION 1
GRANT OF AUTHORITY
1.1 Grant of Franchise. The State is hereby granted a
franchise ( "the Franchise ") to occupy and use the streets and
airways within and belonging to the City in order to construct,
operate, maintain, upgrade, repair and remove a Fiber Optic
4
•
Telecommunications Network, subject to the terms and conditions
of this agreement.
629
1.2 Term of Agreement. This agreement shall commence on
October 1, 1996, and shall expire on December 31, 2016. If this
term is ever deemed an unfair competition advantage over other
private telecommunication industries as prohibited by federal or
state law, then this term shall be made the same as that granted
by the City to private telecommunications providers. Upon
expiration or termination of the Franchise, all rights of the
State shall cease. The City recognizes that once a Franchise is
granted, the City shall not limit as to time the State's right
to use the streets and public. rights -of -way unless the State
engages in misuse or nonuse, the State is determined not to be a
public utility, or, the state, the PSC, the FCC, or any other
branch or agency of the federal government, establishes a time
limit for such use or amends the law relating to this issue and
establishes or permits a time limit.
1.3 Nonexclusive Franchise. The Franchise is nonexclusive.
Nothing in this agreement shall limit or otherwise impact the
right of the City to enter into similar agreements with other
companies for use of the City's streets and airways.
1.4 Scope of Franchise. For purposes of initial
construction, the scope of the Franchise awarded pursuant to
this agreement is limited to the area and locations noted on
Exhibit A to this agreement. Any extension, construction, or
other preparation for the extension of conduit or any facilities
within the streets of public rights -of -way (not including
lateral connections under sidewalks that do not interfere with
the normal flow of traffic on City streets or public
5
� s
rights -of -way for which permits have been issued), other than
that set forth in Exhibit A is prohibited unless there has been
an appropriate award of permits by the Department of Public
Works the issuance of which, pursuant to the terms of Section 630
1.7 and in the sole discretion of the Director of Public Works,
may be reasonably delayed.
1.5 Reservation of Authority. The City reserves the right
to perform any public works or make any public improvements to
the City's streets or airways during the term of this Agreement.
If, as a result of any action by the City, or by any action
authorized by the City for the benefit of the public good,
location of any of the State's conduit or other facilities is
required, such relocation shall be accomplished at the sole
expense of the State. Nothing in this Franchise shall be deemed
a waiver of the City's right to require the State to comply with
all zoning and other regulatory ordinances or to pay any
reasonable permit fees or to seek appropriate authorizations
from the State to perform any work in connection with the
Franchise Should the City close, eliminate, or discontinue use
of any public street during the term of this Franchise, or any
renewal term, this Franchise shall cease with respect to such
streets upon the date of final action by the City with respect
to the closure, elimination or discontinuance of such streets.
1.7 Agreement for Reasonable Moratoria. The State and the
City recognize that from time to time it may be necessary for
the City to impose reasonable moratoria on construction projects
that would otherwise be authorized by this Franchise. The State
agrees that the City has the right to impose such moratoria and
further agrees that it will waive the right to challenge the
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legality of any moratorium the City imposes for a reasonable
period of time in order to accomplish or facilitate any public
purpose or, a purpose of particular importance to the City as
determined by the Mayor, the Board of Directors, the City 631
Manager, or the Director of Public Works. The City acknowledges
that a moratorium is a unique power that the government should
exercise only on limited occasions because of a legitimate
governmental need or objective and, that with the exception of
undue hardship or emergency situations, as determined by the
City, a moratorium must be applied equally to all persons
impacted by its terms and conditions.
1.8 Notice of Intention to Construct. The City has a vested
interest in assuring that any disruption of the flow of traffic,
or the digging or creation of a trench in any of the streets, be
kept to a minimum. In order to facilitate this interest, and to
avoid requiring the State to share conduit with any other
utility, the City and the State agree to the following:
(a) The State will provide thirty (30) days notice to other
utilities in the City of its interest in seeking construction
permits to open the street before it applies for any such
permits. Further, with the exception of emergency situations, as
determined in the sole discretion of the Director of Public
Works, the State acknowledges that the City shall withhold
approval of any such permits to open any City street for a
period of ten (10) business days during which time any other
public utility that desires to do so will be allowed to ask to
simultaneously lay conduit, or other appropriate equipment, in
any trench opened by the State. If another public utility so
desires, the State will permit that public utility to do so
7
provided: (i) the other utility shares in the cost of opening
and repairing the trench; (ii) the utility's desire to so
participate does not unnecessarily delay the States construction
63
schedule.
(b) The State agrees that if, pursuant to a similar
requirement for other public utilities, it receives notice from
any other public utility of a request for a permit to open the
streets, the State shall determine whether to participate in the
opening of any trench by that utility and shall participate in
such a project pursuant to the terms of this subsection.
(c) Failure to comply with the provisions of this
subsection, or any applicable City ordinances, may, in the sole
discretion of the City: (i) be the basis for the City to
require that the State perform more extensive restoration work
than otherwise anticipated by such a permit and (ii) may result
in the State being assessed an additional premium on any permit
fee.
(d) For purposes of this subsection, "public utility" means
Arkansas Louisiana Gas Company, Arkansas Power & Light Co.
(Entergy), Southwestern Bell Telephone Company, Comcast (or
another other cable television company), any interexchange
carrier for long distance telecommunications services, any
company providing a Fiber optic Telecommunications Network,
Little Rock Water Commission, or Little Rock Sanitary Sewer
Committee.
SECTION 2.
CONSTRUCTION REQUIREMENTS
2.1 Ouality. All work involved in the construction,
operation, maintenance, repair, upgrade, and removal of the
9
i
Network that is permitted by this Franchise shall be performed
in a safe, thorough, reliable manner using materials of good and
durable quality in accordance with City Standards as determined 633
by the City Department of Public Works. If, at any time, it is
determined by the City that any part of the Network is harmful
to the health or safety of any person, then the State shall at
its own cost and expense, promptly correct all such conditions.
For purposes of this subsection, promptly shall mean twenty -four
(24) hours, or a longer period of time if and only if additional
time is granted in writing by the Director of Public Works
acting with the advice and consent of the City Manager.
2.2 Aesthetic Construction Requirements. Before the company
constructs, extends or replaces its Network, it shall file with
the City's Director of Public Works a written work description,
including scale drawings, showing the Network's location and
estimated depth of the facilities. The plans will be reviewed by
the Director of Public Works and any comments will be provided
to the State within ten (10) business days. The City agrees to
expedite its review when conditions warrant. Before the State
repairs its existing Network the State shall give notice to the
City's Director of Public Works as to the time and location of
the proposed repairs and obtain any and all permits required by
the City. State will provide a thirty (30) day advanced schedule
of planned work at the beginning of each month. Daily work
schedules shall be provided to City by 8:30 a.m. of each work
day. When an emergency occurs, repairs shall be performed by the
State and notice shall be given to the Director of Public Works
within twenty -four (24) hours following emergency repairs.
Any construction project shall be completed within thirty
9
(30) days from the date that the Department of Public Works
issues any necessary permits, provided that the Director of
Public Works may allow reasonable extension due to weather or 634
Acts of God, or other reasonable circumstances that in the sole
discretion of the Director of Public Works justifies an
extension of the project target completion date.
If construction is not completed by the project target
completion date permitted by the City, the State shall pay
liquidated damages to the City in an amount determined by the
Director of Public Works at the time the City issues permits for
the construction project. The City and the State agree that the
State's failure to abide by the schedule for a project
subsection will result in damages that will be impracticable or
difficult to ascertain. The State agrees to pay the City these
liquidated damages for its failure to complete construction,
modification, or relocation of any facilities, conduit or any
other matter allowed pursuant to a permit granted by the
Department of Public Works, provided the amount shall not exceed
One Hundred ($100.00) dollars per day for the first thirty (30)
days after the project target completion date; Five Hundred
($500.00) dollars per day for the next thirty (30) days after
the project target completion date; and, thereafter, Seven
Hundred and Fifty ($750.00) dollars per day for each day after
the project target completion date.
If the project target completion date is not met after
sixty (60) days and the Board of Directors has not passed a
resolution forgiving the delay, the City may, in its sole
discretion contract with another party to complete the
construction, pursuant to the State's specifications, provided
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M = El m M Man r
that this work will be accomplished at the sole expense of the
State.
In permitting such work to be done, the City shall not be
liable to the State for any damages so caused, nor shall the 635
City be liable to the State for any damages arising out of the
performance of said work by the City's licensees, invitees, or
franchisees; provided, however, nothing herein shall relieve
any other person or corporation from liability for damage to the
State's Network.
If the City requires the State to remove, alter, change,
adapt or conform its Network to enable any other person, except
the City or any person franchised by the City prior to the
enactment of this Ordinance, to use, or to use with greater
convenience, the rights -of -way, the State shall be obligated to
make such changes to its Network only if said person undertakes
with solvent bond to reimburse the State for any loss and
expense which will be caused by or which will arise out of such
changes to the State's Network. The City shall not be liable for
any reimbursement, loss, or expense which is caused by or which
arises out of such changes to the States's Network.
2.3 No Liability to the State
Neither the City nor its officers, employees, agents, attorneys,
consultants or independent contractors shall have any liability
to the State for any liability as a result of any disruption or
damages to the Network that occur as a result of or in
connection with any protection, breaking through, movement,
removal, alteration, or relocation of any part of the Network by
or on behalf of the State or the City in connection with any
emergency, public work of any nature whatsoever, improvement,
11
636
alteration of municipal structure, any change in the grade or
line of any street, or the elimination, discontinuation, and
closing of any street, as provided for in this Agreement.
2.4 Map of Network. Before the State constructs new Network
facilities or extends existing Network facilities, or before it
uses Network facilities that were in existence in the City prior
to the effective date of this franchise agreement, the State
shall provide to the City's Public Works Director its fiber
optics location data in conformance with City's standards. Such
data shall adhere to City's level standards and pen assignments.
The City shall provide electronic base data to allow for
accurate matching of street names and rights -of -way lines in
TekniCAD -TDS, AutoCAD DXF, Intergraph or IGES formats on 1.2MB,
1.44MB, or QIC mini tape media [or equivalent format compatible
with City's requirements), but in any event, shall be in a
magnetic media format that is compatible with the City
Geographic Information System (said format to be approved by the
City prior to submittal). The data shall be returned to City in
the same format in which it was provided.
SECTION 3
FEES AND CHARGES
3.1 Reservation of the City's Authority to Regulate Fees and
Charges. To the extent that the City is, or may in the future
become, entitled to set fees and charges for the services
provided pursuant to this Franchise, the City reserves the right
to regulate the rates, fees, charges, deposits and associated
terms and conditions for any service provided pursuant to this
Franchise to the fullest extent permitted by applicable law.
M
SECTION 4
FEES AND CHARGES
4.1 Reservation of the Cit9 /s Authority to Regulate Fees and
Charges. To the extent that the City is, or may in the future 637
become, entitled to set fees and charges for the services
provided pursuant to this Franchise, the City reserves the right
to regulate the rates, fees, charges, deposits and associated
terms and conditions for any service provided pursuant to this
Franchise to the fullest extent permitted by applicable law.
SECTION 5
COMPENSATION TO THE CITY
I
5.1 Franchise Fees -- Amount. If the State engages inn the
sale of products that meets our definition of Gross Revenue, (a)
The State shall pay to the City franchise fees in an amount
equal to five percent (5 %) of Gross Revenue. Except for the
payments expressly required in this Section 5.1, none of the
payments, contributions of services, equipment, facilities,
support, resources, or other activities to be provided or
performed by the State pursuant to this Franchise shall be
chargeable against the compensation payments to be made pursuant
to this Section 5.1, nor shall any of them be treated as a part
of the compensation to be paid pursuant to this Section 5.1. If
the foregoing sentence is held invalid, the compensation
payments shall take precedence over all other payments,
contributions, services, equipment, facilities, support,
resources, or other activities to be paid or supplied by the
State pursuant to this Franchise.
(b) In the event it is determined that the City cannot
assess a franchise fee based upon the State's Gross Revenues,
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then an annual fee based upon a flat fee of Three ($3.00)
dollars per linear foot shall be paid by the State in accordance 638
with the terms of this agreement.
(c) The payment of a franchise fee by the State in no way
limits the right of the City to charge fees for any permits the
State is required to obtain for any construction project; nor
does the payment of a franchise fee preclude the right of the
City to assess a reasonable occupation tax.
5.2 Franchise Fees -- Payment. All such payments of
franchise fees required by this Section 5.2 shall be made
quarterly and, in any event, no later than fifteen (15) days
after: March 31; June 30; September 30; December 31.
5.3 Authority to Pass Franchise Fee Payments on to System
Users. To the extent provided by law, the State is permitted to
pass any franchise fee assessed by the City through to all its
customers, other than the governmental or institutional
customers referred to in Section 3.3.
5.4 Nature of Franchise Fee Payments. The City and the
State agree that the compensation and other payments to be made
pursuant to this Franchise are not a tax and are not in the
nature of a tax, but are in addition to any and all taxes of
general applicability or other fees or charges which the State
shall be required to pay to the City or to any other
governmental authority, and the State shall not have or make any
claim for any deduction or other credit of all or any part of
the amount of the compensation or other payments made pursuant
to this Franchise, on the one hand, from or against any state or
other governmental taxes of general applicability or other fees
or charges which the State is required to pay to the City or
14
other governmental agency on the other hand, or vice versa.
SECTION 6 639
OVERSIGHT AND REGULATION
6.1 city's Right of Oversight. The City shall have the
right to oversee, regulate, and periodically inspect the
construction, operation, maintenance and upgrade of the Network,
and all parts thereof, in accordance with the provisions of this
Franchise and applicable law. The City reserves the right to
adopt such rules, regulations, orders, or other directives
governing the State's operation and maintenance of the Network
as it shall find necessary or appropriate in the exercise of its
police power, and such other orders as the City shall find
necessary or appropriate pursuant to and in furtherance of the
purposes of this Franchise. The State expressly agrees to comply
with all lawful rules, regulations, orders, or other directives
issued pursuant to this Section 5.1. No rule, regulation, order,
or other directive issued pursuant to this Section 5.1 shall
constitute an amendment to this Franchise.
SECTION 7
RESTRICTIONS AGAINST ASSIGNMENTS AND OTHER TRANSFERS
7.1 Transfer of Franchise or Interest Therein. Neither the
Franchise, nor any rights or obligations of the State provided
under this Franchise, or any guaranty of the performance of the
State's obligations pursuant to the terms of this Franchise, nor
all of its right, title or interest in any part of the Network,
shall be assigned, sold, or transferred in any manner, in whole
or in part, to any private non governmental ore entity person
without the prior written consent of the City Board of Directors
(acting through an appropriate and duly authorized resolution or
15
640
ordinance), provided that the City shall not unreasonably
withhold such consent. The State shall have the right to
mortgage or pledge a portion or all of the Network in order to
secure financing of the State's operations obtained in the
ordinary course of business of the State. Notwithstanding the
foregoing, no mortgage or pledge entered into by the State shall
relieve any person, including the Mortgagor or pledgor, of any
of the terms and conditions of this agreement. Should any
person, including the State, default or otherwise be deemed in
violation of the terms of this agreement, the City shall be
permitted to exercise all its rights, privileges and remedies
pursuant to this agreement. To assure compliance with this
subsection, the State shall provide the City with written
evidence that any mortgagor, creditor, pledgor, or other person
providing financing to the State, acknowledges this obligation
and agrees to fulfill the terms and conditions of this agreement
should the State default.
SECTION 8
SPECIFIC RIGHTS AND REMEDIES
8.1 Nonexclusive Remedies. The State agrees that the City
shall have the specific rights and remedies set forth in this
Section 8. These rights and remedies are in addition to and
cumulative with any and all other rights or remedies, existing
or implied, now or hereafter available to the City at law or in
equity in order to enforce the provisions of this Franchise.
Such rights and remedies shall not be exclusive, but each and
every right and remedy specifically provided or otherwise
existing or given many be exercised from time to time and as
often and in such order as may be deemed expedient by the City.
16
•
The exercise of one or more rights or remedies shall not be
deemed a waiver of or acquiescence to any default. The exercis%41
of any such right or remedy by the City shall not release the
State from its obligations or any liability under this
Franchise, except as expressly provided for in this Franchise or
as necessary to avoid duplicative recovery from or payment by
the State or its Guarantor.
8.2 Events of Default. The State agrees that an Event of
Default shall include, but shall not be limited to, any of the
following acts or failure to act by the State or any Affiliated
Person:
(a) Failure to obtain any applicable permits from the
Department of Public Works of the City before making expansions
to the Network described in Exhibit A to this Franchise.
(b) Failure to comply with the terms of Section 8 which
limits the assignment of the Franchise, or transfer of control
of the Franchise.
(c) Failure to supply insurance, bonds, or letters of
credit as may be required by the City to assure the proper
completion of any construction performed pursuant to the
Franchise.
(d) Failure to make any of the payments set forth in
Section 8 of this Franchise.
(e) Failure to pay any permit fees, or substantial failure
to comply with any rules, regulations, orders or directives of
the City as set forth in this agreement.
(f) Substantial or repeated failure to comply with Section
8 concerning Oversight and Regulation.
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8.3 City Action Upon Occurrence of an Event of Default.
Upon the occurrence of an Event of Default, then, in accordance
with the procedures provided for in this Franchise, the City6 4 2
may:
(a) Require the State to take such actions as the City
deems are appropriate; or
(b) Seek money damages from the State as compensation for
such Event of Default; or
(c) Accelerate the expiration of the term of this Franchise
by decreasing the term of the Franchise as set forth in Section
1; the extent of such acceleration shall be determined by the
City and may include any period of time, but not less than six
(6) months; or
(d) As a last measure only, revoke the Franchise by
termination of this agreement.
8.4 Procedure to Follow Upon Breach. The City shall
exercise the rights set forth in this Section in accordance with
the following procedures:
(a) The City Manager shall notify the State, in writing, of
an alleged Event of Default. This written notice shall set forth
with reasonable specificity the facts the City believes are the
basis for declaring that an Event of Default has occurred. The
State shall, within fifteen (15) business days of the date the
notice is postmarked, or such additional time as the City
Manager may specify in the notice, cure the alleged Event of
Default, or, in writing, present for review by the City Manager
a reasonable time frame and method to cure the Event of Default.
The State, in lieu of the cure of the Event of Default as set
forth herein, may, in writing, present facts and arguments as to
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why the State disagrees that an Event of Default has occurred.
(b) If the State presents a written response that
challenges whether an Event of Default has occurred, the City 643
Manager shall within ten (10) days review the submitted
materials and determine again whether an Event of Default has
occurred. If the City Manager reaffirms that an Event of Default
has occurred, the State shall be notified in writing of this
decision and shall, within fifteen (15) days, cure the alleged
Event of Default.
(c) If the State fails to cure the Event of Default so
declared pursuant to this Section within the time permitted by
the City Manager, the City Manager shall prepare a written
report to the City Board of Directors and recommend action to be
taken. If the City Board of Directors, after consideration of
this report, agrees that an Event of Default has occurred, it
may order an appropriate remedy as set forth in Section 8.3.
(d) Notwithstanding the foregoing, or any other part of
this Franchise, the failure of the State to comply with the
consent requirements of Section 8 may result in the immediate
termination of this Franchise.
8.5 Removal. In addition to the rights under this Section,
the City, upon any termination, may, at its sole discretion,
direct the State to remove, at the States sole cost and
expense, any or all of the Network from all streets,
right -of -way and other public property within the City, subject
to the following:
(a) The City may determine that removal of buried fiber
optic cable, or conduit, is not necessary;
(b) In removing any part of the Network, the State shall
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refill and compact, at its own expense, any excavation that
shall be made by it and shall leave all streets and other
property in as good a condition as that prevailing prior to the
State's removal of the Network;
(c) The City shall have the right to inspect and approve 644
the conditions of the streets and public property after removal
has occurred;
(d) The removal shall commence within thirty (30) days of
an order to remove being issued by the City Manager at the
direction of the City Board of Directors.
(e) The company shall be responsible for all necessary
repairs, relocations of the facility, and maintenance of the
street area in the same manner and degree as if the facility
were in active use, and the State shall retain all liability.
8.6 Other Provisions. The City and the company shall
negotiate in good faith all other terms and conditions of any
acquisition or transfer of the Network by the City, provided
that the City shall not assume the requirements of any
collective bargaining agreements that have been entered into by
the State.
8.7 Consent not a Waiver. The grant or waiver of any one or
more of the consents required by this Franchise shall not render
unnecessary any subsequent consent, nor shall the grant of any
such consent constitute a waiver of any other rights of the
City.
SECTION 9
SUBSEQUENT ACTION
9.1 Current Enforceability of Agreement. The City and the
State and any Affiliated Person agree by the execution of this
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•
Franchise that the terms and conditions are valid in their
entirety and hereby waive and relinquish, to the maximum extent
permitted by any applicable law, any and all rights they have or
may have had at any time or in any manner subsequently acquire,
in law or in equity, to assert in any manner at any time or in 645
any forum that this Franchise, or the process or procedures
pursuant to which this Franchise was entered into and granted,
are not consistent with applicable law.
9.2 Procedure if City's Abilities are Enhanced. The State
and the City agree that if the City's abilities to set terms and
conditions are enhanced as the result of state or federal law,
the City, at its sole option, may choose to reopen the
negotiations on relevant terms and conditions of this Franchise
at the time these abilities are applicable.
9.3 Indemnification. The State shall indemnify and hold
harmless the City and all of its officers, agents, and employees
from all suits, actions, or claims of any character, style, and
description brought for or on account of any injuries or
damages, including death, received or sustained by any person or
any property occasioned by, arising out of, or in connection
with the erection, construction, location, replacement,
reconstruction, maintenance, repair, or operation of the State's
Network, and the State shall pay any judgments, interest, and
costs which may be obtained against City arising out of such
injury or damage. If the franchise granted by this agreement is
terminated or is not renewed, and the State does not remove its
facilities from the right -of -way, the State shall continue to
indemnify and hold harmless pursuant to this section as long as
its facilities are located in the rights -of -way, and for said
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purpose, this section shall survive the franchise.
SECTION 10
MISCELLANEOUS 646
10.1 Controlling Law. This Franchise shall be determined
according to the laws of the State of Arkansas and venue and
jurisdiction to challenge, contest, review, or otherwise subject
its terms and conditions to litigation, shall occur in Little
Rock, Pulaski County, Arkansas, or in the United States District
Court for the Eastern District of Arkansas.
10.2 Captions. The captions given to various provisions of
this Franchise are for purposes of convenience only and are to
have no impact upon the interpretation of any such provisions.
10.3 Entire Agreement. This Franchise, with its exhibits,
comprises the entire agreement between the City and the State
for purposes of this Franchise.
10.4 Burden of Proof. In any disagreement upon the terms
and conditions of this Franchise, the State shall bear the
burden of demonstrating its compliance with each term and
condition of this Franchise for all purposes.
10.5 No Coercion. The State enters into this Franchise
willingly and without coercion, undue influence or duress. The
State has reviewed each and every obligation, term and condition
of this Franchise and hereby certifies that none of the
obligations, terms or conditions imposed upon it by this
Franchise are commercially impracticable.
10.6 System is Economically and Technically Feasible and
Viable. The State, after thoroughly considering all foreseeable
economic and business risks, currently believes that the
provision of all such services, facilities and equipment as
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required for this Franchise is economically and technically
feasible during the term of this Franchise.
10.7 The State Shall Not Discriminate In Employment. The
State shall comply in all respects with all applicable local,
state and federal employment laws during the term of this 47
Franchise.
10.8 Multiple originals. This Franchise may be executed in
any number of copies and any fully executed copy of this
Franchise shall be deemed an original for purposes of
authentication or presentation in evidence before any court or
administrative tribunal.
10.9 Notice. Any notice or communication required in the
administration of this ordinance shall be sent by any method
that assures overnight delivery and shall be addressed as
follows:
City Manager
City of Little Rock
500 West Markham
Little Rock, Arkansas 72201
with a. complementary copy the delivery of which is not
required in order for notice to be accomplished to:
City Attorney
City of Little Rock
City Hall: Room 310
500 West Markham
Little Rock, Arkansas 72201
Notice to State will be to:
Ken Hall, Director
Arkansas Department of Computer Services
P.O. Box 3155
Little Rock, AR 72203
or to such other address as State and City may, in writing,
designate from time to time provided that notice is accomplished
by overnight delivery to only one (1) designated person for
OA]
either the City or the State.
SECTION 11
BOND AND INSURANCE
The State shall agree to either require its contractors to
maintain the same insurance coverages and limits thereof as
specified herein or such coverage on the State's contractor 4 8
shall be provided by the State.
WHEREUPON, the City and the State, acting through their
duly authorized officers and pursuant to appropriate authority
granted by their respective Board of Directors, do hereby
execute this Franchise.
CITY OF LITTLE ROCK, ARKANSAS STATE OF ARKANSAS
By: By:
Date: Date:
ATTEST:
Date:
State of Arkansas)
ATTEST:
Date:
ss
County of Pulaski)
SUBSCRIBED and sworn to before me this day of
September, 1996.
My Commission Expires:
(Seal)
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Notary Public