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ORDINANCE NO. 17,532
AN ORDINANCE TO GRANT A FRANCHISE TO ENTERGY LOCAL
FIBER COMPANY AS A TELECOMMUNICATIONS SERVICES
PROVIDER WITHIN THE CITY OF LITTLE ROCK, ARKANSAS;
PERMITTING USE OF CITY RIGHTS -OF -WAY AND AIRSPACE; AND
FOR OTHER PURPOSES.
WHEREAS, the city has been requested by Entergy Local Fiber Company to grant it a
franchise to use the public streets, rights -of -way and airspace to construct and maintain a
telecommunications network; and
WHEREAS, the City is willing to grant Entergy Local Fiber Company a franchise
agreement for the use of the public streets and rights -of -way.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF
THE CITY OF LITTLE ROCK, ARKANSAS:
SECTION 1. The City approves and grants a franchise agreement to Entergy Local Fiber
Company ("the Company ") pursuant to the terms and conditions of the agreement set forth in the
Franchise Agreement attached to this ordinance, to use the public streets and rights -of -way for
purposes of constructing and maintaining a telecommunications system within the corporate limits
of the City of Little Rock, Arkansas.
SECTION 2. In addition to any other covenants set forth in Exhibit A, Entergy Local Fiber
Company agrees to pay the City annually a franchise fee described in the Agreement, for use of the
public streets and right -of -way. These fees are to be calculated in accordance with the terms and
conditions set forth in the Franchise Agreement.
SECTION 3. The term of this franchise agreement shall be for an unlimited period
and shall commence on July 18, 1997, provided that Entergy Local Fiber Company complies with all
terms and conditions and obtains all necessary permits required by the City necessary for such work.
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PASSED: July 15, 1997
ATTEST:
(a .. h . Md az . l
CITY CLERK
APPROVED AS TO FORM:
g`,Pao,� V.1 .
THOMAS M. CARPENTER
CITY ATTORNEY
APPROVED: �'� ® ®®���� /��^�
Jol
AILEY jl MXY
OR
TELECOMMUNICATIONS NETWORK
FRANCHISE AGREEMENT
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DRAFT 6/25/97
503
THIS Agreement is entered into this day of 1997 between the City
of Little Rock, Arkansas, a municipal corporation duly organized pursuant to the laws of the
State of Arkansas, and Entergy Local Fiber Company, a division of Entergy Technology Holding
Company, a corporation duly organized pursuant to the laws of the State of Delaware, and
authorized to do business in the State of Arkansas,
WHEREAS, the City of Little Rock, Arkansas (the "City ") recognizes that
telecommunications services are essential to health, safety, welfare and economic development
of the businesses, residents and of the City; and
WHEREAS, Entergy Local Fiber Company, a division of Entergy Technology Holding
Company, a corporation organized pursuant to the laws of the State of Delaware (hereafter "the
Company ") and licensed to do business in the State of Arkansas, has asked for a franchise to use
the public rights -of -way including, but not limited to, streets, alleys, sidewalks, and air rights (to
the extent air rights are related to facilities attached to or between poles) that belong to the City,
to install conduit, fiber optic cable and a telecommunications network that will facilitate the
connection of businesses, residences and public agencies located within the City to a
telecommunications network; and
WHEREAS, the parties agree that the Company is a utility with which a written
franchise agreement may be entered into pursuant to A.C.A. 14- 200 -101;
NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND
AGREEMENTS SET FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND
AGREE AS FOLLOWS:
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DEFINITIONS 504
1. Event of Default - The events set forth in this Agreement that are a basis for the
involuntary termination of this Franchise.
2. Fiber Optic Telecommunications Network, Network or Telecommunications
Network - The Company's system of cables, wires, lines, towers, wave guides, optic fiber,
microwave, laser beams, and any associated converters, equipment, and 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 or through the City.
3. Gross Revenues - All revenues, (excluding sales tax, extension, terminal
equipment, toll, access, yellow pages and miscellaneous equipment revenues) collected by the
Company: for local intrastate wireline telecommunications services provided by the Company
and billed to its end user customers, in both respects, within the corporate limits of the City and
from operation of the Company's Network installed pursuant to this Agreement.
Notwithstanding the foregoing definition, the term Gross Revenues shall not include the
following: (1) those revenues that the Company has received or will receive from another
telecommunications service provider and upon which the other telecommunications provider has
paid or will pay a franchise fee, and (2) revenues that the Company has received from its
corporate parent, subsidiary, or an affiliate.
4. Public Rights -of -Way or City Rights -of -Way - Streets, avenues, alleys, bridges,
viaducts, rights -of -way, easements, grounds and other similar public places owned or controlled
by, leased to or granted to the City.
SECTION I
GRANT OF AUTHORITY
1.1 Grant of Franchise. The Company is hereby granted a franchise (the
"Franchise ") to occupy and use the public rights -of -way and airways within and belonging to the
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City in order to construct, operate, maintain, upgrade, repair and remove a Telecommunications
Network subject to the terms and conditions of this agreement. 505
1.2 Term of Agreement. This Agreement shall commence on 1997,
and shall continue in force in accordance with A.C.A. § 14- 200 -103 or unless the Franchise is
terminated by abandonment or by agreement of the Parties. Upon expiration or termination of
the Franchise, all rights and obligations of the Company granted under this Agreement shall
cease.
1.3 Nonexclusive Franchise. The Franchise is nonexclusive. Nothing in this
Agreement shall limit or otherwise restrict the right of the City to enter into agreements with
other companies for use of the City's rights -of -ways and airways.
1.4 Scope of Franchise. The scope of the Franchise awarded pursuant to this
Agreement is limited to the incorporated area of the City. The Parties agree that their entrance
into this Agreement is without prejudice to any positions they may have taken previously, or may
take in the future, in any legislative, regulatory, judicial, municipal, or other public forum
addressing any matters, including matters related to the same types of arrangements covered in
this Agreement.
This Agreement does not give the Company any right to use or occupy any public right-
of -way controlled by a city utility unless agreed to by such utility.
1.5 Renegotiation of Terms. The City is currently in the process of developing a
telecommunications ordinance with input from telecommunications providers. Upon passage of
an ordinance that is consistent with applicable laws, the City and the Company agree to
renegotiate any terms of this Agreement which are inconsistent with the new ordinance. The
Company expressly reserves the right to oppose the adoption of any ordinances and the
enforcement of any ordinance including, but not limited to, the right to appeal to a court of
proper jurisdiction.
1.6 Reservation of Authority. The City reserves the right to perform any necessary
public works or make any necessary public improvements to the City's rights -of -ways or airways
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(to the extent airways are related to facilities attached to or between poles) during the term of this 506
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, re- location of any of the Company's conduit or other facilities is
required, such relocation shall be accomplished at the sole expense of the Company. Nothing in
this Franchise shall be deemed a waiver of the City's right to require the Company to comply
with all applicable zoning and other applicable regulatory ordinances or to pay any reasonable
permit fees or to seek appropriate authorizations from the City 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 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, the City and the Company agree to the
following:
(a) Upon application by the Company for a construction permit to open the street, the
City shall provide notice to other utilities in accordance with applicable ordinances of the
City. During such time period provided by Ordinance, the City shall withhold approval
of any such permits so that 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 Company. The Director of Public Works may extend time for emergency
situations if another public utility so desires. The Company will permit that public utility
to simultaneously lay conduit, or other appropriate equipment, in any trench opened by
the Company 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
Company's construction schedule.
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(b) The Company agrees that if, pursuant to a similar application from other public 507
utilities, it receives notice from the City of a request for a permit to open the streets, the
Company 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) For purposes of this subsection, "public utility" means any of the following
entities operating within the City: gas provider, cable television company, electric
service provider, interexchange, long distance or local exchange telecommunications
services provider, any entity (including the State of Arkansas) operating a fiber optic
telecommunications network in the City, Little Rock Water Commission, Little Rock
Sanitary Sewer Committee, and any other entity laying pipes, cables, conduits, or wires
on, over, or beneath City rights -of -way and that have a franchise from the City.
SECTION 2
CONSTRUCTION REQUIREMENTS
2.1 Quality. All work involved in the construction, operation, maintenance, repair,
upgrade, and removal of the 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
generally accepted construction standards. 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 Company 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 Con5t1:uctIOn Requirements. Before the Company constructs, extends
or replaces its Network, except in the case of minor maintenance as may be defined by the City,
it shall file with the City's Director of Public Works a written work description, including scale
drawings, showing the Network's location and, if applicable, estimated depth of the facilities.
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• • DRAFT 6/25/97
The plans will be reviewed by the Director of Public Works and any comments will be provided 508
to the Company within ten (10) business days. The City agrees to expedite its review when
conditions warrant. Before the Company repairs its Network, the Company shall give notice to
the City's Director of Public Works as to the time and location of the proposed repairs and obtain
permits required by the City Code. The Company will provide a thirty (30) day schedule of
planned work at the beginning of each month. When an emergency occurs, repairs shall be
performed by the Company 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 (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 extensions due to weather or 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 complete date.
If the City requires the Company to remove, alter, change, adapt or conform its Network
to enable any other person or entity, to use, or to use with greater convenience, the rights -of -way,
or in connection with dedication or street buildout requirements related to third party action, the
Company shall be obligated to make such changes to its Network only if said person or entity
commits and post appropriate bond, if required by the Company, to reimburse the Company for
any loss and expense which will be caused by or which will arise out of such changes to the
Company'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 Company's Network.
2.3 No Liability to the Company. Neither the City nor its officers, employees, agent
(except independent contractors), attorneys, or consultants shall have any liability, except in the
case of intentional acts or omissions of the City, to the Company 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, street cave -in, movement, removal, alteration, or relocation of any
part of the Network by or on behalf of the Company or the City in connection with any
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0 0 DRAFT 6/25/97
emergency public work of any nature whatsoever, improvement, alteration of municipal 509
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. Except, however, the City shall
reasonably attempt to avoid any damage to the Company's Network and shall, except in
emergency situations, provide reasonable notice to the Company so as to allow the Company to
protect its Network.
2.4 New Construction or Extension of Facilities. Before the Company 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 Agreement, the Company
shall, as reasonably possible, provide to the City's Public Works Director its Network location
data in conformance with the City's standards. The City shall be notified of any extension of the
network, construction, including other preparation for the extension of conduit or any facilities
within public rights -of -way (not including lateral connections under sidewalks that do not
interfere with the normal flow of traffic on the City streets or public rights -of -way for which
permits have been issued).
SECTION 3
COMPENSATION TO THE CITY
3.1 Franchise Fees -- Amount. (a) The Company shall pay to the City franchise fees
beginning with the calendar year immediately following its generation of Gross Revenues, an
amount equal to five percent (5 %) of Gross Revenues as defined in this Agreement. The rate
shall be five percent (5 %) unless or until agreed otherwise between the parties or otherwise
changed by law, and shall be ratified annually by the City as appropriate. In addition to the
franchise fee, Company shall provide City, upon City's request, the exclusive use of two (2) fiber
pairs per each location where Company has installed fiber optic facilities that include at least 96
fibers. Company shall have no obligation to provide City any optronics, electronics, power or
other services or facilities in connection with such two fiber pairs. City's exclusive use of the
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• DRAFT' 6/25/97
two (2) fiber pairs provided by Company shall be limited solely to governmental functions and
shall not be used directly or indirectly or made available directly or indirectly for use by the
510
public or for compensation.
(b) The payment of a franchise fee by the Company in no way limits the right of the City
to charge fees for any permits the Company 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 business license fee.
3.2 Franchise Fees -- Payment. All such payments of franchise fees required by
this Section shall be made quarterly and, in any event, no later than fifteen (15) days after:
March 31; June 30; September 30; and December 31 of each year.
3.3 Franchise Fee Payments Subject to Audit; Remedy for Underpayment. All
franchise fee payments shall be made pursuant to a form provided by and acceptable to the
Finance Director and Treasurer of the City. No acceptance of any franchise fee payment by the
City shall be construed as an accord and satisfaction that the amount paid is in fact the correct
amount, nor shall acceptance be deemed a release of any claim the City may have for further or
additional sums payable pursuant to this Franchise. All amounts paid shall be subject to audit and
recomputation by the City in accordance with the provisions of this Agreement.
3.4 Author y to Pass Franchise Fee Payments on to System End Users. To the
extent provided by law, the Company is permitted to collect any franchise fee assessed by the
City from customers.
SECTION 4
OVERSIGHT AND REGULATION
4.1 The City's Right of Oversight. The City shall have the right to oversee 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
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• • DRAFT' 6/25/97
Company's construction 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 511
appropriate pursuant to and in furtherance of the purposes of this Franchise. The Company,
without waiving its right to appeal or to seek a stay or injunctive relief, expressly agrees to
comply with all rules, regulations, orders, or other directives issued pursuant to this Section. No
rule, regulation, order, or other directive issued pursuant to this Section shall constitute an
amendment to this Franchise.
4.2 Proprietary Information as Proper of the Company. The City and the
Company recognize that in order to comply with all the terms and conditions of this Franchise it
may, on occasion, be necessary for the Company to provide the City access to certain proprietary
information. To the extent that such information is individually noted and marked "Proprietary"
by the Company, the City acknowledges that such information will always be considered to be in
the sole custody and control of the Company, that the information will only be reviewed by the
City and, that despite the immediate location of such material, the Company shall never be
deemed to have provided it to the City for its possession and control nor to include such
information as a part of any public record. In the absence of a court order issued by a court of
competent jurisdiction, or a subpoena duly issued according to law, should any person request
access to such information solely upon the basis of state or federal freedom of information laws,
the City shall immediately return the information to the Company with notice of the request,
shall refuse access to the records to the requesting party, and shall complete any necessary
review at the Company's office.
4.3 Financial Reports. The Company shall, subject to appropriate proprietary
treatment and protection, make available to the City not later than three (3) months after the end
of the Company's annual fiscal periods with respect to the period just ended: a copy of the
Company's appropriate financial statements as necessary, which statements shall, unless
otherwise agreed to by the City, be certified by the Company's Chief Financial Officer in
accordance with generally accepted accounting principles; and a statement of the gross revenues
• • DRAFT 6/25/97
subject to Franchise fees under this Agreement and a calculation of fees due the City certified to
be true and correct by the Company's Chief Financial officer. The parties shall mutually agree on °5 1 Z
the appropriate reporting format to be utilized by the Company.
SECTION 5
RESTRICTIONS AGAINST ASSIGNMENTS AND OTHER TRANSFERS
5.1 Transfer of Franchise or Interest Therein. The Company may not, except to a
wholly owned subsidiary or entity under common ownership to Company, assign, sell, or
transfer in any manner, in whole or in part, its right, title or interest in any part of the Network
without the prior written consent of the City Board of Directors (acting through an appropriate
and duly authorized resolution or ordinance), provided that the City shall not unreasonably
withhold such consent. The Company shall give notice to the City of any such assignment, sale
or transfer. The Company shall have the right to mortgage or pledge a portion or all of the
Network in order to secure financing of the Company's operation obtained in the ordinary course
of business of the Company. Notwithstanding the foregoing, no mortgage or pledge entered into
by the Company shall relieve any person, including the Mortgagor or pledgor, of any of the terms
and conditions of this Agreement. Should any person, including the Company, 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.
SECTION 6
SPECIFIC RIGHTS AND REMEDIES
6.1 Nonexclusive Remedies. The Company agrees that the City shall have the
specific rights and remedies set forth in this Agreement. These rights and remedies are in
addition to and cumulative with any and all other rights or remedies, express 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
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specifically provided or otherwise existing or given may be exercised from time to time and as 513
often and in such order as may be deemed expedient by the City. The exercise of one or more
rights or remedies shall not be deemed a waiver of or acquiescence to any default. The exercise
of any such right or remedy by the City shall not release the Company 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 Company or its Guarantor.
6.2 Events of Default. The Company 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 Company or any
Affiliated Person:
(a) Failure to obtain any applicable permits from the Department of Public Works of
the City before making material expansions to the Network.
(b) Failure to supply insurance, bonds, or letters of credit as may be required by the
City to assure the proper completion of any restoration or repair performed pursuant to
the Franchise.
(c) Failure to make any of the payments set forth in this Franchise.
(d) Failure to pay any permit fees, or substantial failure to comply with any
applicable rules, regulations, orders or directives of the City as set forth in this agreement.
(e) Failure to materially comply with agreed construction and repair schedules.
(f) Filing of bankruptcy.
6.3 City Action Upon Occurrence of an Event of Default. Upon the occurrence of
an Event of Default under Section 6.2(a), (d), or (e) Company may be subjected to appropriate
fines or penalties as provided by the City and with respect to Events of Default specified in
Section 6.2(b), (c) or (f), the City may, in accordance with the procedures provided for in this
Franchise:
(a) Require the Company to take such actions as necessary to cure the Event of
Default; or
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DRAFT 6/25/97
(b) Seek money damages from the Company as compensation for such Event of 514
Default: or revoke the Franchise by termination of this Agreement.
6.4 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 Company, 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 Company
shall, within thirty (30) 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 Company, in lieu of the cure of the Event of
Default as set forth herein, may, present written facts and arguments as to why the
Company disagrees that an Event of Default has occurred.
(b) If the Company presents a written response that challenges whether an Event of
Default has occurred, the City 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 Company shall be notified
in writing of this decision and shall, within thirty (30) days, cure the alleged Event of
Default.
(c) If the Company 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 6.
6.5 Removal. In addition to the rights under this Section, the City, upon any
termination, may, at its sole discretion, direct the Company to remove, at the Company's sole
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cost and expense, any or all of the Network from all streets, rights -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 Company shall 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 Company's removal of the
Network;
(c) The City shall have the right to inspect and approve 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 issued
by the City Manager at the direction of the City Board of Directors.
(e) Prior to the City's exercise of this right, the Company's mortgagees, pledgees or
other persons providing financing to the Company shall have the right to cure the
Company's default under this agreement. The City acknowledges that its right to direct
the Company to remove the Network provided herein shall be subject and subordinate to
the rights of the Company's mortgagee, creditor, pledgee, or other person providing
515
financing to the Company, as described in the written documents evidencing the
financing or the security therefore, provided that such mortgagee, creditor, pledgee, or
other person providing financing to the Company complies with the terms and conditions
of this agreement.
6.6. 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 and/or the Company.
SECTION 7
SUBSEQUENT ACTION
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7.1 Cu"ent Enforceability of Agreement. The City and the Company agree that
the execution of this Franchise and the terms and conditions are valid in their entirety.
7.2 Indemnification. The Company shall indemnify and hold harmless the City and5 16
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 environmental
damages, disruption of services or death, received or sustained by any person or any property
occasioned by, arising out of, or in connection with the negligent acts or omissions of the
Company regarding the erection, construction, location, replacement, reconstruction,
maintenance, repair, or operation of the Company's Network, and the Company shall pay any
judgments, interest, and costs which may be obtained against the City arising out of such injury
or damage. If the franchise granted by this agreement is terminated or is not renewed, and the
Company does not remove its facilities from the right -of -way, the Company shall continue to
indemnify and hold harmless pursuant to this section as long as its facilities are located in the
rights -of -way. The City at its option may defend any such action and the parties shall cooperate
in any such defense.
SECTION 8
MISCELLANEOUS
8.1 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.
8.2 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.
8.3 Entire Agreement. This Franchise, with its exhibits, comprises the entire
agreement between the City and the Company for purposes of this Franchise.
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8.4 Burden of Proof. In any disagreement upon the terms and conditions of this
Franchise, the Company shall bear the burden of demonstrating its compliance with each term
and condition of this Franchise for all purposes. `5
8.5 No Coercion. The Company and the City enter into this Franchise willingly and
without coercion, undue influence or duress.
8.6 Multiple a Originals. The 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.
8.7 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 the Company will be to
John A. Brayman, President and CEO
Entergy Local Fiber Company, a division of
Entergy Technology Holding Company
Three Financial Centre
900 S. Shackleford Rd. Suite 210
Little Rock, Arkansas 72212
with a complementary copy the delivery of which is not required in order for notice to be
accomplished to:
15
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t•
t•:
Stephen T. Refsell, Vice President and General Counsel
Entergy Local Fiber Company, a division of
Entergy Technology Holding Company
Three Financial Centre
900 S. Shackleford Rd. Suite 210
Little Rock, Arkansas 72212
DRAFT' 6/25/97
or to such other address as the Company and the City may, in writing, designate from
time to time provided that notice is accomplished by overnight delivery to only one (1)
designated person for either the City or the Company.
SECTION 9
INSURANCE
9.1 Insurance. The Company shall maintain the following insurance coverages and
the respective policies thereof shall cover all risks related to the use and occupancy of the right -
of -way and all other risks associated with this franchise agreement:
(a) Description of Insurance Coverages and Limits
I. Commercial General Liability Insurance - Two Million Dollars ($2,000,000) for
each occurrence - coverage shall include the following: premises, operations, independent
contractors, products /completed operations, personal injury, contractual liability,
explosion/collapse /underground property damage. Insurance shall be provided on an occurrence
basis, be as comprehensive as the current Insurance Services Office (ISO) policy.
2. Automobile Liability Insurance One Million dollars ($1,000,000) each accident -
coverage shall be on "any auto', including leased, hired, owned, non -owed and borrowed
vehicles.
3. Environmental Impairment Liability including Pollution Liability Insurance if it
can reasonably be obtained in the amount of One Million dollars $1,000,000 each occurrence -
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this coverage is to be provided on an occurrence basis and it shall include claims arising from
gradual emissions and sudden accidents. Clean-up and defense costs shall be covered.
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4. Workers' Compensation Insurance Statutory Limits - Employer's Liability - 519
minimum Five Hundred Thousand dollars ($500,000) for each accident/disease -
employee /disease - policy limit.
(b) Other Insurance Related Requirements
1. The City shall be an additional insured, by endorsement, on applicable insurance
policies.
2. Applicable insurance policies shall each be endorsed with a waiver of subrogation
in favor of the City.
3. Insurers shall be authorized to do business in the State of Arkansas, or otherwise
approved by the City, and such shall be acceptable to the City insofar as their financial strength
and solvency are concerned.
4. The City shall be notified within a minimum of thirty (30) days prior to the
insurer's action in the event of cancellation, non - renewal or material change coverage regarding
any policy providing insurance coverage required in this agreement.
5. Full limits of insurance required in Subsection (a) of this section shall be available
for claims arising out of this agreement with the City.
6. Certificates of insurance shall be provided by the Company to the City prior to
commencement of operations pursuant to this franchise. Any failure on part of the City to request
such documentation shall not be construed as a waiver of insurance requirements specified
herein.
7. The City shall be entitled, upon reasonable request, to review the insurance
policies including endorsements thereto and, at its discretion, to require proof of payment for
policy premiums.
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8. The City reserves the right to revise insurance requirements specified herein and
require the Company to comply therewith within sixty (60) days of the City's official notice of
the revision. 520
9. The City shall not be responsible for paying the cost of insurance coverage
required herein.
10. "Other insurance" as referenced in any policy of insurance providing coverages
required herein shall not apply to the City.
11. The Company shall agree to either require its contractors to maintain the same
insurance coverages and limits thereof as specified herein or such coverage on the Company's
contractors shall be provided by the Company.
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DRAFr 6/25/97
WHEREUPON, the City and the Company, acting through their duly authorized officers
I
and pursuant to appropriate authority granted by their respective Boards of Directors, do hereby
execute this Agreement,
CITY OF LITTLE ROCK, ARKANSAS ENTERGY LOCAL FIBER COMPANY 521
a division of
Entergy Technology Holding Company
By: By:
Date: Date:
ATTEST:
By:
Date:
ATTEST:
By:
Date:
State of Arkansas )
ss.
County of Pulaski )
SUBSCRIBED and sworn to before me this
My Commission Expires:
4079802.1
19
day of
Notary Public