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3 ORDINANCE NO. 17,799
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5 AN ORDINANCE TO GRANT A FRANCHISE TO LYNCSTAR
6 INTEGRATED COMMUNICATIONS, LLC AS A CABLE SYSTEM
7 PROVIDER WITHIN THE CITY OF LITTLE ROCK, ARKANSAS;
8 PERMITTING USE OF CITY RIGHTS -OF -WAY AND AIRSPACE;
9 DECLARING AN EMERGENCY; AND FOR OTHER PURPOSES
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11 WHEREAS, the City has been requested by LyncStar Integrated Comminications, LLC
12 (" LyncStae) to grant it a franchise to use the public streets, rights -of -way and airspace to construct
13 and maintain a Cable System to connect two apartment buildings to its service; and
14 WHEREAS, the City is willing to grant LyncStar a franchise agreement for the use of the
15 limited portion of public streets and rights -of -way.
16 NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF
17 THE CITY OF LITTLE ROCK, ARKANSAS:
18 SECTION 1. The City approves and grants a franchise agreement to LyncStar, pursuant
19 to the terms and conditions in substantially the form of the Franchise Agreement attached as
20 Attachment "A" to this ordinance, to use the public streets and rights -of -way for purposes of
21 constructing and maintaining a Cable System within the corporate limits of the City of Little Rock,
22 Arkansas.
23 SECTION 2. In addition to any other covenants set forth in Attachment 'W', LyncStar
24 agrees to pay the City annually a franchise fee described in the Agreement, for use of the public
25 streets and right -of -way. These fees are to be calculated in accordance with the terms and conditions
26 set forth in the Franchise Agreement.
27 SECTION 3. The term of this franchise agreement shall commence on August 15, 1998 and
28 shall extend for a period of ten (10) years and, provided that LyncStar complies with all terms and
29 conditions and obtains all necessary permits required by the City necessary for such work.
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1 PASSED: August 18, 1998
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4 ATTEST:
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8 ROBBIE HANCOCK
9 CITY CLERK
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12 APPROVED AS TO FORM:
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16 THOMAS M. CARPENTERJ
17 CITY ATTORNEY
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APPROVED:
JIM AILEY
MAYOR
'LA O4
• • Attachment "A"
FRANCHISE AGREEMENT TO USE PUBLIC RIGHT -OF -WAY _
BETWEEN THE CITY OF LITTLE ROCK ARKANSAS
AND LYNCSTAR INTEGRATED COMMUNICATIONS, LLC'
THIS AGREEMENT executed as of the day of , 1998 (the "execution
date "), by and between the City of Little Rock Arkansas (hereinafter referred to as the
"Franchising Authority "), and LyncStar Integrated Communications, LLC, a limited liability
corporation duly organized under the laws of the state of Colorado and authorized to do business
under the laws of the state of Arkansas, whose principal place of business is located at 6900 West
Jefferson Avenue, Suite 175, Lakewood, Colorado 80235 (hereinafter referred to as the
"Company "). For the purposes of this agreement unless otherwise defined in this agreement or
unless the context clearly indicates that another meaning is intended, the capitalized terms,
phrases, words, and their derivations used in this agreement shall have the meaning set for in
Appendix A.
WITNESSETH:
WHEREAS, LyncStar Integrated Communications, a Colorado LLC, desires to use the
Streets of the City to connect two apartment buildings with Cable Service: and
WHEREAS, the Board of Directors of the Franchising Authority determines that the
granting of a franchise to the Company under the terms and conditions stated herein is
appropriate; and
WHEREAS, the Franchising Authority intends to exercise the full scope of its municipal
powers, including both its police power and contracting authority, to promote the public interest
and to protect the health, safety and welfare of the citizens of the City of Little Rock, Arkansas.
NOW, THEREFORE, in considerations of the foregoing recitals which recitals are hereby
made a part of this agreement, the mutual covenants and agreements contained herein and other
valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the parties
covenant and agree as follows.
SECTION 1
GRANT OF AUTHORITY
1.1 Grant of Franchise. The Company is hereby granted a franchise ( the "Franchise ")
to occupy and use the Streets within the Franchise Area in order to construct, operate, maintain,
upgrade, repair and remove the System and provide Services through this System subject to the
terms and conditions of this Agreement. Nothing herein shall be interpreted to authorize the
Company to provide noncable services through the Cable System. The Franchise only authorizes
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the Company to provide cable service and does not authorize any other service. The Company
shall obtain a separate franchise or other authorization requirement by the Franchising Authority
to provide noncable services in the City through the cable system or otherwise to the extent such
a franchise or authorization is permitted pursuant to applicable federal, state or local law,
regulation or ordinance.
1.2. Term of Franchise. The franchise shall commence as of , 1998, (the
"Effective Date ") and shall expire on unless the franchise is renewed or extended as
permitted herein or unless such expiration date is sooner terminated pursuant to this agreement
by (I) the revocation of the Franchise as provided in section 3.4, or (ii) an abandonment. Upon
termination of the Franchise all rights of the Company in the Franchise shall cease, and the rights
of the Franchising Authority and the Company to the System or any part thereof shall be
determined as provided in section 6.
1.3. Renewal, Subject to Section 626 of the Cable Act (46 U.S.C. § 546) the
Franchising Authority reserves the right to grant or deny renewal of the Franchise.
1.4. Nonexclusive Franchise. The Franchise is nonexclusive. Nothing in this Agreement
shall affect the right of the franchising Authority to grant to any person, or itself, a franchise,
consent, or right to occupy an use the Streets, or any part thereof, for the construction, operation,
or maintenance of all or any part of a Cable System within the Franchise Area or for any other
purpose.
1.5. Reservation of Authority. Nothing in this Agreement shall (I) abrogate the right
of the Franchising Authority to perform any public works or public improvements of any
description, (ii) be construed as a waiver of any codes or ordinances of the Franchising Authority
or of the Franchising Authority's right to require the Company or any Person utilizing the System
to secure the appropriate permits to authorizations for such use, or (iii) be construed as a waiver
or release of the rights of the Franchising Authority in and to the Streets. In the event that all or
part of the Streets within the Franchise Area are eliminated, discontinued and closed, the
Franchise shall cease with respect to such Streets upon the effective date of the final action of the
Franchising Authority with respect thereto.
1.6. "tea" ion of Cable Service - New Franchise Agreemen. Attached to this Franchise
agreement is a copy of the Agreement between the Franchising Authority and Comcast
Cablevision of Little Rock, Inc., for provision of Cable Service by Comcast within the City. The
Agreement is attached hereto and marked Appendix C. If at any time in the future the Company
expands its Cable Service within the City to the point that it is deemed to provide effective
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competition to Comcast or to any other cable provider, the Company shall enter into a new
franchise agreement with the Franchising Authority consistent with the terms and conditions as
included in the attached Comcast Franchise.
SECTION 2
THE SYSTEM
2.1. The System and Its Operations
2.1.1. General O ]lei aim . The Company shall construct, operate, maintain, and
upgrade the System as provided in this Agreement. Without limiting the foregoing, the System
shall have the characteristics, shall meet the technical performance and testing requirements and
shall be constructed pursuant to the terms, schedule and sequence set forth below and in
Appendix D.
2.2. Construction I;gquirements
2.2.1 General. The Company shall comply with each of the terms set forth in this
Section 2.2 and Appendix D in connection with all work involved in the construction, operation,
maintenance, repair, upgrade, and removal of the System, in addition to any other requirements
or procedures specified by the Franchising Authority that are related to the use of the Streets and
are generally applicable to other Persons using the Streets.
2.2.2. Quality. All work involved in the construction, operation, maintenance,
repair, upgrade, and removal of the System shall be performed in a safe, thorough and reliable
manner using materials of good and durable quality. If, at any time, it is determined by the
Franchising Authority or any other agency or authority of competent jurisdiction that any part of
the System, including, without limitation, any means used to distribute Signals over or within the
System, 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.
2.2.3. No Liability to Compaa y or Affiliated Persons. Neither the Franchising
Authority nor its officers, employees, agents, attorneys, consultants or independent contractors
shall have any liability to the Company or any Affiliated Person for any liability as a result of or
in connection with the protection, breaking through, movement, removal, alteration, or relocation
of any part of the System by the Company pursuant to the request of the Franchising Authority or
in connection with any emergency, public work, public improvement, alteration of any municipal
structure, any change in the grade or line of any Street, or the elimination, discontinuation, and
closing of any Street, as provided in this Agreement.
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2.2.4. Conditions of Street occupancy. All transmission and distribution structures,
poles, lines and equipment installed or erected by the Company pursuant to the terms hereof shall
be so located as to cause a minimum of interference with the proper use of the Streets and with
the rights and reasonable convenience of abutting property owners.
2.3. Relocation at &quest of Franchising Authority. Upon its receipt of reasonable
advance notice, not to be less than five (5) business days, the Company shall, at its own expense,
protect, support, temporarily disconnect, relocate within the Streets, or remove from the Streets,
any property of the Company when lawfully required by Franchising Authority by reason of traffic
conditions, public safety, street abandonment, street construction, change or establishment of
street grades, installation of sewers, drains, gas or water pipes, or any other type of structure or
improvements caused by the Franchising Authority; but the Company shall in all events have the
right of abandonment of its property.
2.4 No Liabilijy to Company or Affiliated Persons. Neither the Franchising Authority
nor its officers, employees, agents, attorneys, consultants or independent contractors shall have
any liability to the Company or any Affiliated Person for any liability as a result of or in
connection with the protection, breaking through, movement, removal, alteration or relocation
of any part of the System by the Company pursuant to the request of the franchising Authority or
in connection with any emergency, public work, public improvement, alteration of any municipal
structure, and any change in the grade or line of any Street, or the elimination, discontinuation or
closing of any Street.
2.5 Interconnection. The Company shall construct, operate, maintain and upgrade the
System such that it is capable of transmitting and receiving signals to and from any other Cable
System in the state of Arkansas. With respect to connection with other Cable Systems, the
Company shall negotiate in good faith the costs to be incurred by the Company and any cost
sharing arrangements with the Cable Systems to be connected to the Company's Cable System,
in particular, but not limited to, the provision of public, educational and governmental ("PE(7)
access channels to the Subscribers of the Company.
SECTION 3
COMPENSATION AND OTHER PAYMENTS
3.1. Compensation to the Franchising Authority. As compensation for the Franchise,
the Company shall pay, or cause to be paid, to the Franchising Authority the amounts set forth in
this section 3.
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3.1.1. Franchise Fees - Amount. As compensation for the Franchise the Company
shall pay to the Franchising Authority an amount equal to five percent (5 0/0) of Gross Revenue
derived from the operation of the System to provide Services. Except for the payments expressly
required by Section 3.1, none of the payments or contributions made by, or the Services,
equipment, facilities, support, resources, or other activities to be provided or performed by the
Company at the direction of the Franchising Authority or otherwise pursuant to this agreement,
or otherwise in connection with the construction, operation maintenance or upgrade of the
System, are franchise fees chargeable against the compensation payments to be paid to the
Franchising Authority by the Company pursuant to section 3. 1, nor shall any of them be treated
as part of the compensation to be paid to the Franchising Authority pursuant to section 3.1. If the
foregoing sentence for any reason is held invalid, the compensation payments due from the
Company to the Franchising Authority pursuant to section 3.1 shall take precedence over all other
payments, contributions, Services, equipment, facilities, support, resources, or other activities to
be paid or supplied by the Company pursuant to this agreement.
3.1.2. Franchise Fees -- Pgyment. All such payments of franchise fees shall be
made on a quarterly basis and shall be remitted simultaneously with the submission of the
Company's quarterly report required pursuant to Section 3.1.3.
3.1.3. Coml2aW To Submit Franchise Fee Report. The Company shall submit to
the Franchising Authority a report, in such form and containing such detail as the Franchising
Authority deems appropriate in order to determine the Company's compliance with this Section,
not later than thirty (30) days after the date of the last day of each March, June, September, and
December throughout the term of this Agreement setting forth the Gross Revenue for the quarter
ending on said last day.
3.1.4. Franchise Fee Payments Subject to Audit- Remedy for Underoayment.
Except as otherwise provided by law, no acceptance of any franchise fee payment by the
Franchising Authority shall be construed as an accord and satisfaction that the amount paid is in
fact the correct amount or a release of any claim that the Franchising Authority may have for
further or additional sums payable under this Agreement, and all amounts paid shall be subject
to audit and recomputation by the Franchising Authority for a three -year period from the date of
payment after which period such payment shall be considered final.
If, as a result of such audit or any other review, the Franchising Authority determines that
the Company has underpaid its fees in any twelve (12) month period by ten percent (10 %) or
more, then, except in the case of a good faith dispute by the Company, the Company shall make
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full payment of the relevant obligation and reimburse the Franchising Authority for all of the
reasonable costs associated with the audit or review.
3.15. CompaM To Deduct and Pay Franchise Fee on Amounts Collected for Third
Parties. If the Company collects from Subscribers any amounts to be paid to any Person for the
provision of Services on the System that fall within the definition of Gross Revenue, the Company
shall deduct the same percentage from such amounts as to the then applicable franchise fee
percentage pursuant to Section 3.1.1. and include such deducted amounts in its payment to the
Franchising Authority pursuant to this section and include such payments in its report pursuant
to Section 3.1.3.
3.1.6. Company To Require Third Parties To Pay on Amounts Collected from
Subscribers. If any Person other than the Company directly collects such amounts from
Subscribers that would constitute the Gross Revenue if received directly by the Company, the
Company shall include in its contact, or other arrangement with such Person, a provision (which
must be approved in advance by the Franchising Authority) which provides that such Person shall
remit to the Franchising Authority on a quarterly basis an amount equal to the same percentage
of such amounts collected from Subscribers as the then - applicable franchise fee percentage
pursuant to Section 3.1.1, and that the Franchising Authority may enforce such provision directly
against such Person.
3.2 Pa5mPnts Nol To Be Set Off Against Taxes or Vice Versa. The parties agree that
the compensation and other payments to be made pursuant to this Section 6 and any other
provision of this Agreement are not a tax and are not in the nature of tax and are in addition to
any and all taxes of general applicability or other fees or charges ( including any fees or charges
which may be imposed on the Company for the use of poles, conduits or similar facilities that may
be owned or controlled by the Franchising Authority) which the Company or any Affiliated Person
shall be required to pay to the Franchising Authority or to any other governmental authority, and
neither the Company nor any Affiliated Person shall 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 to be made
pursuant to this agreement, on the one hand, from or against any Franchising Authority or other
governmental taxes of general applicability or other fees or charges with the Company or any
Affiliated Person is required to pay to the Franchising Authority or other governmental agency
on the other hand, or vice versa.
3.3. Interest on Late Payments. If any payment required by this agreement is not
actually received by the Franchising Authority on or before the applicable date fixed in this
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agreement or by the Franchising Authority, the Company shall pay interest thereon, from the due
date of the date period, at a rate equal to three (3) percent interest per annum above the Federal
Reserve discount rate at the time of this agreement, or as otherwise provided by Article 19,
Section 13 of the state of Arkansas Constitution.
3.4, Continuing Obligation. In the event the Company continues to operate all or any
part of the System after the term of this agreement, then the provisions of this agreement shall
apply and the Company shall continue to comply with all applicable provisions of this agreement,
including, without limitation, all compensation and other payment provisions of this agreement,
throughout the period of such continued operation, provided that any such continued operation
shall in no way be construed as a renewal or other extension of this agreement or the Franchise,
except to the extent an extension is for purpose of compliance with Section 626 of the Cable Act.
3.5. More Favorable Franchise Terms. If the Franchising Authority grants to any third
party one or more franchises (hereinafter called "Additional Cable Franchise ") for the purpose
of constructing or operating a Cable System or providing Cable Service to any part of the
Franchise Area, which contains terms more favorable to such third party in any regard, then the
Company may request that the Franchising Authority make a determination consistent with the
provision of section 1.6 of the Comcast Franchise (Appendix Q.
In the event the Company agrees to pay a franchise fee to any City in the state of Arkansas
at a rate higher than provided for in this agreement, the Company shall disclose such fact to the
Franchising Authority and the Franchising Authority may require such higher payment paid to it
under this Franchise upon ninety (90) days written notice to Company after disclosure or
discovery of the higher fee payment.
SECTION 4
OVERSIGHT AND REGULATION
4.1. Franchising Authority's of Oversieht. The Franchising Authority shall have
the right to oversee, regulate, and periodically inspect the construction, operation, maintenance
and upgrade of the System, and all parties thereof, in accordance with the provisions of this
agreement and applicable law. Consistent with applicable law, the Franchising Authority may
adopt or issue such rules, regulations, orders, or other directives governing the Company or the
System as it shall find necessary or appropriate in the exercise of the Franchising Authority's
police power, and such other orders as the Franchising Authority shall find necessary or
appropriate pursuant to and in furtherance of the terms of this agreement, and the Company
expressly agrees to comply with all such lawful rules, regulations, orders or other directives,
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provided that such rules, regulations, orders, or other directives are not materially in conflict with
the Company's rights set forth herein. Nothing herein shall be interpreted to grant the Franchising
Authority any right to adopt any rules, regulations, orders or other directives it does not otherwise
have the right to adopt under applicable statute, rule, regulation or ordinance.
4.2. Franchising Authority's Righla of Inspection and Audit Right of Incpection-
('eeneral. The Franchising Authority or its designated representatives, shall have the right to
inspect or examine during normal hours of operation and upon three (3) days written notice to the
Company, all documents, records and other information which pertain to the Company or any
Affiliated Person with respect to the System, and which enable the Franchising Authority to
determine the Company's compliance with this Agreement or to otherwise perform its regulatory
responsibilities under this Agreement. All such documents, record, and other information shall
be made available within the Franchise Area in order to facilitate said inspection, examination,
or audit, as provided in this Section 4.5. Further, during normal hours of operation and upon three
(3) days written notice to the Company, the Franchise Authority or its designated representatives
may inspect and examine any other aspect of the System, including facilities and equipment
thereof. The Company shall have the right to be present during any inspection pursuant to this
section
4.3. Company. to Provide Copies to City Manager and City Attomev. The Company
shall provide a copy of all documents, records, rate filings or other information required to be
submitted to the Franchising Authority pursuant to this agreement or applicable law or regulation
to the City Manager and to the City Attorney at the addresses and in the manner set forth in
section 7.5.
SECTION 5
RESTRICTIONS AGAINST ASSIGNMENTS AND OTHER TRANSFERS
5.1 Transfer of Franchise Agreement or Sy them. Neither the Franchise, nor any rights
or obligations of the Company in the System or pursuant to this Agreement, or any part of the
capacity of the System, shall be encumbered, assigned, sold, transferred, pledged, leased, sublet,
or mortgaged in any manner, in whole or in part, to any person, nor shall title therein, either legal
or equitable, or any right or interest therein, pass to or vest in any Person, either by act of the
Company or any Affiliated Person, by act of any Person holding control of or any interest in the
Company or in the System or the Franchise, by operation of law, or otherwise, without the prior
written consent of the Franchising Authority, provided that the law Franchising Authority shall
consider any such action in accordance with applicable law and its usual procedural rules.
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5.2. Consent Not A Waiver. The grant or waiver of any one or more such consents
shall not render unnecessary any subsequent consent, nor shall the grant of any such consent
constitute a waiver of any other rights of the Franchising Authority.
SECTION 6
SPECIFIC RIGHTS AND REMEDIES
6.1. Nonexclusive. The Company agrees that the Franchising Authority shall have the
specific rights and remedies set forth in this section 6. 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 Franchising Authority at law or in equity in order to enforce the provisions of this
Agreement, except that nothing herein shall be interpreted to permit the Franchising Authority to
exercise such rights and remedies in a manner that permits duplicate recovery from or payments
by the Company. Such rights and remedies shall not be exclusive, but each and every right and
remedy specifically provided or otherwise existing or given may be exercised from time to time
and as often as in such order as may be deemed expedient by the Franchising Authority. The
exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise
at the same time or thereafter any other right or remedy nor shall nay such delay or omission be
construed to be a waiver of or acquiescence to any default. The exercise of any such right or
remedy by the Franchising Authority shall not release the Company from its obligations or any
liability under this agreement, except as expressly provided for in this agreement or as necessary
to avoid duplicate recovery from or payments by the Company.
6.2 Events of Default
6.2.1 Grounds. The Company agrees that an Event of Default shall include, but
shall not be limited to, any of the following acts or failures to act by the Company or any
Affiliated Person:
6.2.1 (I) any substantial failure to comply with any material provisions of this
agreement which is not cured within thirty (30) days after notice pursuant to this section;
6.2.1 (ii) the condemnation by a public authority other than the Franchising
Authority, or sale or dedication under threat or in lieu of condemnation, of all or a substantial part
of the System, the effect of which would materially fiustrate or impede the ability of the Company
to carry out is obligations, and the purpose of this Agreement.
6.2.1(iii) In the event that: (A) the Company shall suspend or discontinue its
business, shall make an assignment for the benefit of creditors, shall fail to pay its debts generally
as they become due, shall become insolvent (however such insolvency may be evidenced), shall
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be adjudicated insolvent, shall petition or apply to any tribunal for, or consent to, the appointment
of, or taking possession by, a receiver, custodian, liquidator, trustee or similar official pursuant
to federal, state, or local laws, ordinances or regulations of or for it or any substantial part of its
property or assets, including all or any part of the System; or (B) a writ or warrant of attachment,
execution, distraint, levy possession or any similar process shall be issued by any tribunal against
all or any material part of the Company's property or assets which is not discharged by the
Company within 90 days; or (c) any creditor of the Company petitions or applies to any tribunal
for the appointment of, or taking possession by, trustee, receiver, custodian, liquidator or similar
official for the Company or of any substantial parts of the assets of the Company under the laws
of any jurisdiction, whether now or hereinafter in effect, and an order, judgment or decree is
entered appointing any such trustee, receiver, custodian, liquidator or similar official, or
approving the petition in any such proceedings which is not rescinded within 120 days; or (D) any
order, judgment or decree is entered in any proceedings against the Company decreeing the
voluntary or involuntary dissolution of the Company.
6.3. Termination. In the event of any termination of this agreement, the Franchising
Authority may: (I) direct the Company to operate the System on behalf of the Franchising
Authority pursuant to the provisions of this agreement, for a period of up to ninety (90) days,
during which time the Company shall be entitled to the revenues from the System; (ii) if the
Company does not agree to operate the system for the period set forth in this section, authorize
any other Person to operate the System on behalf of the Franchising Authority or otherwise upon
such terms and conditions as are equitable to the Franchising Authority and the Company; or (iii)
order the Company to cease all construction and operational activities in a prompt and
workmanlike manner.
6.4. Franchising Authority's Right to Order Removal 9r To Acquire or Effect a
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6.4.1 Removal. In addition to its rights under Section 6.3, upon any termination,
the Board of Directors, may, in its sole discretion, but shall not be obligated to, direct the
Company to remove, at the Company's sole cost and expense, all or any portion of the System
from all Streets and other public property within the Franchise Area, subject to the following:
(1) this provision shall not apply to buried cable which the Franchising Authority
determines should not be removed:
(ii) in removing the System, or part thereof, 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
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property in as good condition as that prevailing prior to the Company's removal of the System and
without leaving altering or disturbing in any way any electric, telephone or other utility cables,
wires or attachments (except to the extent such affecting, altering, or disturbing is permitted by
an agreement between the Company and the applicable utility;
(iii) the Franchising Authority shall have the right to inspect and approve the
condition of such Streets and public property after removal;
(iv) the liability insurance and indemnity provisions of this agreement shall remain
in full force and effect during the entire period of removal and associated repair of all Streets and
other public property;
(v) removal shall be commenced within thirty (30) days of the removal order by
the Franchising Authority and shall be completed within ninety (90) days thereafter including all
associated repair of all Streets and other public property;
SECTION 7
MISCELLANEOUS
7.1 Police Powers. The Franchising Authority expressly reserves the right to exercise
the full scope of its municipal powers, including both is police power and contracting authority,
to promote the public interest and to protect the health, safety, and welfare of the citizens of the
City of Little Rock.
7.2. Con rolling Authorities. This Agreement is made with the understanding that its
provisions are controlled by the Cable Act, other federal laws, state laws, and all local laws,
ordinances, and regulations. Where this agreement conflicts with a provision of applicable
federal, state, or local laws, ordinance, or regulation, this agreement shall prevail to the extent
permitted by law.
7.3. Appendigp, . The Appendices to this agreement attached hereto, and all portions
thereof and exhibits thereto, are, except as otherwise specified in such Appendices or unless
otherwise set forth herein, incorporated herein by reference and expressly made a part of this
agreement.
7.4. Entire Asueemr, nt. This agreement, including all Appendices, embodies the entire
understanding and agreement of the Franchising Authority and the Company with respect to the
subject matter hereof and merges and supersedes all prior representations, agreements, and
understandings, whether oral or written, between the Franchising Authority and the Company
with respect to the subject matter hereof, including, without limitation, all oral statements or
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representations by any official, employee, agent, attorney, consultant or independent contractor
of the Franchising Authority or the Company.
7.5. Notices. All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments, designations, or other direction or
communication hereunder by any part to another shall be in writing and shall be sufficiently given
and served upon the other party, immediately if delivered personally or by telex or telecopy
(provided with respect to telex and telecopy that such transmissions are received on a business
day during normal business hours), the first business day after dispatch if sent by express mail,
and the second business day after dispatch if sent by first class mail, registered or certified, return
receipt requested, postage prepaid, and addressed as follows:
THE FRANCHISING AUTHORITY:
City Manager
City of Little Rock
City Hall
500 West Markham
Little Rock, Arkansas 72201 -1400
with a copy to
City Attorney
City of Little Rock
City Hall
500 West Markham
Little Rock, Arkansas 72201 -1400
THE COMPANY:
James P. Honiotes, Vice President
LyncStar Integrated Communications, LLC
6900 West Jefferson Ave., Suite 175
Lakewood, Colorado 80235
(303) 716 -8833
(303) 716 -8810 FAX
7.6. Licenses and Permits. The Company has duly secured all necessary and material
permits and licenses in connection with the design, construction, operation, maintenance, upgrade
or repair of the System, or any part thereof, from, and has filed all required and material
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registrations, applications, reports and other documents with the FCC and if applicable, public
utilities commissions, telephone companies and other entities exercising jurisdiction over the
provision of cable services or the construction of delivery systems therefor. Further, no event has
occurred which could (I) result in the revocation of termination of any material license or
authorization, or (ii) materially and adversely affect any rights of the Company. No event has
occurred which permits, or after notice or lapse of time or both would permit, revocation or
termination of any such license or which materially and adversely affects, or so far as the
Company can now foresee, will materially and adversely affect the System or part thereof The
Company has obtained all leases, easements and equipment rental or other agreements necessary
for the maintenance and operation of the System as now conducted.
7.7 Insurance
7.7.1 Specifications. Throughout the terms of this Agreement, the Company shall,
at its own cost and expense, maintain a liability insurance policy or policies, in a form acceptable
to the Franchising Authority, together with evidence acceptable to the Franchising Authority
demonstrating that the premiums for said policy or policies have been paid. Such policy or
policies shall be issued by companies duly licensed to do business in the State of Arkansas and
acceptable to the Franchising Authority. Such companies must carry a rating by Best of not less
than "A ". Such policy or policies shall insure (I) the Company and (ii) the Franchise Authority
and its officers, boards, commissions, councils, elected officials, agents and employees (through
appropriate and endorsements if necessary) against each and every form of liability of the
Company referred to in this Agreement in the minimum combined amount of Three Million
Dollars ($3,000,000) for bodily injury and property damage. The foregoing minimum limitation
shall not prohibit the Company from obtaining a liability insurance policy or policies in excess
of such limitations, provided that the Franchising Authority, its officers, boards, commissions,
councils, elected officials, agents, and employees shall be named as additional insured to the full
extent of any limitation contained in any such policy or policies obtained by the Company.
7.8. Severabilitv. If any section, sentence, clause, phrase, or other portion of this
Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity
of the remaining portions hereof, which other portions shall continue in full force and effect.
7.9. No Agency. The Company shall conduct the work to be performed pursuant to this
agreement as an independent contractor and not as an agent of the Franchising Authority.
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7. 10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted transferees and assigns.
7.11. Governing Law. This Agreement shall be deemed to be executed in the City of
Little Rock, State of Arkansas, and shall be governed in all respects, including validity,
interpretation and effect, and construed in accordance with, the laws of the State of Arkansas, as
applicable to contracts entered into and to be performed entirely within the State.
7.12.1. Co m _oanv. The Company shall be responsible for any liability, including,
without limitation, any liability of the Franchising Authority or any Person, including, without
limitation, any officer, employee, agent, attorney, consultant and independent contractor of the
Franchising Authority, arising out of or in connection with the construction, operation,
maintenance, repair, upgrade or removal of the System, any activity or function associated with
the production or distribution of any Service over the System, except any Service provided by the
Franchising Authority, or the distribution of any Service over the System, except any Service
provided by the Franchising Authority. The Company shall, at its own cost and expense, replace,
repair, or restore any damaged property to its prior condition and shall pay appropriate
compensation in the event of any injury to or death of any individual Person occasioned by any
act or failure to act of the Company, any Affiliated Person, or any officer, employee, agent or
subcontractor thereof, in connection with the construction, operation, maintenance, repair,
upgrade or removal of the System.
7.12.2. Franchisin thori ty. The Franchising Authority, its officers, employees,
agents, attorneys, consultants and independent contractors shall not be liable for any liability of
the Company, any Affiliated Person or any other Person, arising out of or in connection with the
construction, operation, maintenance, repair, upgrade or removal of the System, any activity or
function associated with the production or distribution of any Service over the System, or the
distribution of any Service over the System.
7.13. indemnification of the Franchising Authority. The Company and each Affiliated
Person shall: (i) defend, indemnify, and hold harmless the Franchising Authority, its officers,
employees, agents, attorneys, consultants and independent contractors from and against all
liabilities, special, incidental, consequential, punitive, and all other damage, cost, and expense
( including reasonable attorney's fees) arising out of or in connection with: (a) the construction,
operation, maintenance, repair, upgrade or removal of, or any other action or event with respect
to, the System or any activity or function associated with the production or distribution of any
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Service over the System, except any Service provided by the Franchising Authority; or (b) the
distribution of any Service over the System, except any Service provided by the Franchising
Authority; and (ii) cooperate with the Franchising Authority, by providing such nonfinancial
assistance as may be requested by the Franchising Authority. The Company and each Affiliated
Person also shall cooperate with the Franchising Authority by providing such nonfinancial
assistance as may be requested by the Franchising Authority and any financial assistance on which
the Company and Franchising Authority specifically agree, in connection with any claim arising
out of or in connection with the negotiation or award of this Agreement and Franchise.
7.14, Modification. Except as otherwise provided in this Agreement, any Appendix to
this Agreement, or applicable law, no provision of this Agreement nor any Appendix to this
Agreement, shall be amended or otherwise modified, in whole or in part, except by an instrument,
in writing, duly executed by the Franchising Authority and the Company, which amendment shall
be authorized on behalf of the Franchising Authority through the adoption of an appropriate
resolution or order by the Franchising Authority, as required by applicable law.
M
FRANCHISING AUTHORITY
JIM DAILEY
Title: MAYOR OF CITY OF LITTLE ROCK
Date:
THE COMPANY
By:
JIM HONIOTES
Date:
15
VICE PRESIDENT, OPERATIONS
LyncStar Integrated Communications, LLC
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