18152I ORDINANCENO. 18,152 752
2 AN ORDINANCE TO GRANT A FRANCHISE TO CAPROCK
TELECOMMUNICATIONS CORP., AS A
3 TELECOMMUNICATIONS SERVICES PROVIDER WITHIN THE
CITY OF LITTLE ROCK, ARKANSAS; PERMITTING USE OF CITY
4 RIGHTS -OF -WAY AND AIRSPACE; DECLARING AN
EMERGENCY; AND FOR OTHER PURPOSES
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6 WHEREAS, the City has been requested by CapRock Telecommunications Corp. to grant it a
7 franchise to use the public streets, rights -of -way and airspace to construct and maintain a
8 telecommunications network; and
9 WHEREAS, the City is willing to grant CapRock Telecommunications Corp. a franchise
10 agreement for the use of the public streets and rights -of -way.
11 NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE
12 CITY OF LITTLE ROCK, ARKANSAS:
13 SECTION 1. The City approves and grants a franchise agreement to CapRock
14 Telecommunications Corp. ( "CapRock "), pursuant to the terms and conditions of the agreement set forth
15 in the Franchise Agreement attached as Exhibit A to this ordinance, to use the public streets and
16 rights -of -way for purposes of constructing and maintaining a telecommunications system within the
17 corporate limits of the City of Little Rock, Arkansas.
18 SECTION 2. In addition to any other covenants set forth in Exhibit A, CapRock agrees to pay
19 the City annually a franchise fee described in the Franchise Agreement, for use of the public streets and
20 right -of -way. These fees shall be calculated in accordance with the terms and conditions set forth in the
21 Franchise Agreement.
22 SECTION 3. The term of this franchise agreement shall be for an unlimited period and shall
23 commence on January 1, 2000, provided that CapRock complies with all terms and conditions and
24 obtains all necessary permits required by the City necessary for such work.
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26 Passed: December 7, 1999
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Attest:
kn 1 L, Ae A�COei
bbie Hancock —
y Clerk
proved as to Form:
comas M. Carpenter
y Attorney
App�roAV,ed:
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Jim Da71e�
Mayo
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THIS Agreement is entered into this day of
754
1999, between
the City of Little Rock, Arkansas ( "City ") a municipal corporation duly organized pursuant to the
laws of the State of Arkansas, and CapRock Telecommunications Corp_ ( "Company ") a corporation
duly organized pursuant to the laws of the State of Texas and authorized to do business in the State
of Arkansas,
WITNESSETH
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, CapRock Telecommunications Corp., a corporation organized pursuant to
the laws of the State of Texas (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 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;
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NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND
AGREEMENTS SET FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND
AGREE AS FOLLOWS:
DEFINITIONS
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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 Company for local
intrastate 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 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
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or will pay a franchise fee, (2) revenues that the Company has received from its c W?ate parent,
subsidiary, or an affiliate, and (3) unrecovered bad debts written off of the Company's books after
diligent, unsuccessful efforts to collect.
4. Public Rights -of -Way or City Rights -of -Way - Streets, avenues, alleys, bridges, viaducts,
rights -of -way, easements, grounds and other public places owned or controlled by, leased to or
granted to the City.
5. Rights -of -Way - Any public street, roadway, highway, alley or other City property
now or hereafter subject to this jurisdiction and regulation of the City, as provided by the laws of the
State of Arkansas, and any later amendments thereof.
SECTION 1
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 City in order to
construct, operate, maintain, upgrade, repair and remove a Telecommunications Network subject
to the terms and conditions of this agreement.
1.2 Term of Agreement. This Agreement shall commence thirty days from the date the
Litrtle Rock Board of Directors passes an ordinance approving the Franchise and shall continue in
force in accordance with A.C.A. § 14- 200 -103 or until 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.
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1.3 Nonexclusive Franchise. The Franchise is nonexclusive. Except as expressly provided
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herein, nothing in this Agreement shall limit or otherwise restrict the right of the City td drlt7r into
similar 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 or other public forum addressing any matters, including
matters related to the same types of arrangements covered in this Agreement. This Franchise shall
not give the Company any right to use any property or public rights -of -way controlled by a City
utility unless agreed to by such utility
1.5 Omitted
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 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, relocation of any of the Company's conduit or other facilities
is required, such relocation shall be accomplished at the sole expense of 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 Company 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. 75-6
In all cases where the Company is required to relocate, change the route of or reposition its
poles, lines, or conduits, the City shall give at least thirty (30) days advance written notice to the
Company specifying the new location, route or position of the poles, lines, or conduits involved;
provided, however that the Company shall be entitled to be paid for its cost and expenses of any
relocation, raising or lowering of its wires as required by the City, (pursuant to this Section or
Section 2.31 only if such expenses or costs are reimbursable or payable to the governmental agency
or subdivision of either, whether directly or indirectly, but nothing herein shall impose any obligation
of the City to pay such costs and expenses except to the extent it actually receives funds from the
State of Arkansas, United States or any governmental agency or subdivision of either, for the
reimbursement of payment of such expenses.
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. During such time not to exceed 20 days from the date of
application, 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 do so
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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.
(b) The Company agrees that if, pursuant to a similar application from other public 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 gas provider, cable television
company, electric service provider, interexchange, long distance or local exchange
telecommunications services provider, any company providing a fiber optic telecommunications
network, 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, and in compliance with all of the applicable ordinances of the City
and laws and regulations of any governmental entitity having jurisdiction. 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
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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, if applicable, estimated depth of the
facilities. The plans will be reviewed by the Director of Public Works and any comments will be
provided 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 completion date.
If the City requires the Company to remove, alter, change, adapt or conform its Network to
enable any other person or entity, except the City, to use, or to use with greater convenience, the
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rights -of -way, 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 Comnanv. Neither the City nor its officers, employees, agent,
attorneys, consultants or independent contractors shall have any liability, except in the case of
intentional acts or omissions or negligence 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, 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 emergency public work
of any nature whatsoever, improvement, 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. Except, however, the City shall reasonably attempt to avoid any damage to
Company's Network and shall provide reasonable notice to Company so as to allow Company to
protect its Network.
2.4 New Construction or Extension of Facilities. Before 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 City's standards. The City shall be notified of any extension of the network,
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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 City streets or public rights -of -way for which permits have been issued). Except
however, the City shall reasonably attempt to avoid any damage to the Company's Network and
shall, except in any emergency situation, provide reasonable notice to the Company so as to allow
the Company to protect its network.
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 the Payment Start Date, an amount equal to
five percent (5 %) of Gross Revenue as defined in this Agreement.
(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.
3.3 Service to Governmental and Institutional Facilities. In addition to any
Franchise Fee collected pursuant to Section 3.1 of this Franchise, the Company shall provide the
fiber and facilities to the governmental and institutional facilities as set forth in Exhibit B.
The Company shall provide to the City without charge, and solely for City's noncommercial
telecommunications purposes, two (2) dark fiber pair in all of the ducted and conduit facilities
within the City limits, with sufficient space for necessary joints, upon written request by the City.
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Additionally, the Company shall provide adequate space on all non- ducted facilities constructed
on, over, or within rights -of -way, for the City to attach transmission media for the City's
noncommercial use.
In the case of new construction of the network, the Company, at its sole cost and
expense, shall provide to the City for noncommercial municipal purposes two (2) dark fiber pair
throughout the portion of the Network used for transmission purposes, as required by the City
and suitable for the City's stated needs. In addition, the Company shall provide lateral lines
connecting the City's locations to the Network as required by the City and any necessary facilities
to accomplish the interconnection of City telecommunications services at Company's cost to be
reimbursed by the City. Building Entrance Facilities may be constructed to facilitate the City's use
of the two dark fiber, however, the cost of construction of such building entrance facilities shall be
borne by the City.
Based upon specifications provided by the Company, the City reserves the right to obtain
bids from vendors, other than Company and other franchisees.
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 Subiect to Audit• Remedy for UnderpaymvnA. 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
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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 Authority 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 its
customers.
SECTION 4
OVERSIGHT AND REGULATION
4.1 Cm'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 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 appropriate pursuant to and in
furtherance of the purposes of this Franchise. The Company expressly agrees to comply with all
lawful 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 PropeM of 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.
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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. Nothing in this Franchise should be
considered to mean that in the event it is necessary for purposes of litigation, state or federal public
finance laws, or otherwise, for the City to publish such information, the City is waiving any right to
request publication or to comply with any appropriate order, statute, regulation, subpoena or request
for publication of such material.
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 subject to Franchise fees under this
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Agreement and a calculation of fees due the City certified to be true and correct by the Company's
Chief Financial officer.
SECTION 5
RESTRICTIONS AGAINST ASSIGNMENTS AND OTHER TRANSFERS
5.1 Transfer of Franchise or Interest Therein. The Company may assign, sell, or transfer
in any manner, in whole or in part, its right, title or interest in any part of the Network, provided that
the Company shall give notice to the City and provided that the assignee is duly authorized by the
state to own and operate the Network. 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 operations 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 specifically provided or
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otherwise existing or given may be exercised from time to time and as often and in such order 2la�
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 ExPnts 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.
6.3 City Action Upgn Occurrence of an Event of Default. Upon the occurrence of an
Event of Default, the City may, in accordance with the procedures provided for in this Franchise, the
City may:
(a) Require the Company to take such actions as necessary to cure the Event of
Default; or
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(b) Seek money damages from the Company as compensation for such Event of / /Default:
or
(c) As a last measure only, revoke the Franchise by termination of this Agreement.
6A 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
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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 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. 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 financing to the
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Company, as described in the written documents evidencing the financing or the security
therefor, 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
7.1 Current 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. Company 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
grossly negligent acts or omissions of the Company regarding the erection, construction, location,
replacement, reconstruction, maintenance, repair, or operation of Company's Network, and Company
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
Company does not remove its facilities from the right -of -way, Company shall continue to indemnify
and hold harmless pursuant to this section as long as its facilities are located in the rights -of -way.
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SECTION 8 771
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.
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.
8.5 No Coercion. The Company and City enter into this Franchise willingly and without
coercion, undue influence or duress.
8.6 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.
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
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500 West Markham
Little Rock, Arkansas 72201
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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 Company shall be to:
CapRock Telecommunications Corp.
Legal Department
15601 Dallas Parkway, Suite 700
Dallas, Texas 75248
or to such other address as Company 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
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
1. Commercial General Liability Insurance - Two Million Dollars ($2,000,000) for each
occurrence - coverage shall include the following: premises, operations, independent contractors,
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products/completed operations, personal injury, contractual liability, explosion /collapse /undergc'od4
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 -owned 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 - 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.
4. Workers' Compensation Insurance Statutory Limits - Employer's Liability - minimum Five
Hundred Thousand dollars ($500,000) for each accident /disease -each 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.
VIE
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E
."
5. Full limits of insurance required in Subsection (a) of this section shall be available ?or
claims arising out of this agreement with the City.
6. Certificates of insurance shall be provided by 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.
8. The City reserves the right to revise insurance requirements specified herein and require
Company to comply therewith within sixty (60) days of the City's official notice of the revision.
herein.
9. The City shall not be responsible for paying the cost of insurance coverage required
10. "Other insurance" as referenced in any policy of insurance providing coverages required
herein shall not apply to the City.
11. 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.
WHEREUPON, the City and the Company, acting through their duly authorized officers
and pursuant to appropriate authority granted by their respective Boards of Directors, do hereby
execute this Agreement.
21
CITY OF LITTLE ROCK, ARKANSAS
By:
Date: _
ATTEST:
Date:
22
CAPROCK
TELECOMMUNICATIONS
CORP.
Rv-
Date:
7 `l u
• i
CORPORATE ACKNOWLEDGMENT
77-
STATE OF ARKANSAS )
)SS
COUNTY OF PULASKI )
BE IT REMEMBERED, that on this day before the undersigned, a Notary Public
within and for the County aforesaid, duly commissioned and acting, appeared in
person and to
me well known, who stated that they were the and
of the corporation executing this instrument, and were duly
authorized in their respective capacities to execute the foregoing instrument for the name
and behalf of said corporation, and further stated that they had executed the same for the
consideration and purposes therein mentioned and set forth.
WITNESS my hand and seal as such Notary Public on this day of
. 1999.
MY COMMISSION EXPIRES:
23
NOTARY PUBLIC
i
CITY ACKNOWLEDGMENT
0
1 notary public in and
for said county in the state aforesaid, do hereby certify that Cy Carney, personally known
to me to be the City Manager of the City of Little Rock, Arkansas, appeared before me this
day in person and severally acknowledged that as such City Manager, he signed and sealed
the said instrument and caused the seal of said City of Little Rock to be affixed thereto
pursuant to the authority of the Board of Directors of the City of Little Rock, Arkansas, as
to their free and voluntary act and deed of said City of Little Rock, Arkansas, for the uses
and purposes therein set forth.
Given. under my hand and notarial seal this day of
-1999.
My Commission Expires:
24
Notary Public