20748 1 ORDINANCE NO. 20,748
2
3 AN ORDINANCE TO GRANT A FRANCHISE TO OCCUPY PUBLIC
4 RIGHTS-OF-WAY AND PROVIDE TELECOMMUNICATIONS
5 SERVICES BY UNITE PRIVATE NETWORKS, LLC; TO SET FORTH
6 THE TERMS AND CONDITIONS FOR THE USE AND RENTAL OF SUCH
7 RIGHT-OF-WAY; AND FOR OTHER PURPOSES.
8
9 WHEREAS, the Little Rock School District has received a grant to install fiber connections between
10 various schools located within the corporate limits of the City of Little Rock, Arkansas; and,
11 WHEREAS, Unite Private Networks("Unite") is under contract with the Little Rock School District
12 to install these services pursuant to this program; and,
13 WHEREAS, it is important to set forth the terms and conditions for the use of the public rights-of-way
14 pursuant to a franchise agreement between Unite and the City;
15 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY
16 OF LITTLE ROCK,ARKANSAS:
17 Section 1. Authority to Execute Franchise. The Mayor, City Manager and City Clerk, are
18 authorized to take all steps necessary to execute a franchise agreement in substantially the form set forth
19 within this ordinance, as approved by the City Attorney, to Unite Private Networks, headquartered in
20 Kearney,Missouri,to provide telecommunication fiber optic services particularly to the Little Rock School
21 District, and for any other purposes permitted by local, state or federal law.
22 Section 2. Definitions. For the purposes of the Agreement set forth in this ordinance, the following
23 words and phrases shall have the meaning given herein. When not inconsistent within the context, words
24 used in the present tense include the future tense and words in the single number include the plural number.
25 The word"shall" is always mandatory, and not merely directory.
26 (a) "City"- means the City of Little Rock, Arkansas.
27 (b) "Facilities" - means telephone and telecommunication lines, conduits, manholes, ducts,wires,
28 cables, pipes, poles, towers, vaults, appliances, optic fiber, and all equipment used to provide
29 Telecommunication Services.
30 (c) "Grantee"-means Unite Private Networks,LLC,a telecommunications local exchange service
31 provider, providing local exchange service within the City. References to Grantee shall also
32 include,as appropriate, any and all successors and assigns.
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1 (d) "Public Improvement" - means any existing or contemplated facility, building, or Capital
2 Improvement Project, owned, occupied or used by the City, including without limitation streets,
3 alleys, sidewalks, sewer, water, drainage, Rights-of-Way improvements, and Public Projects.
4 (e) "Public Project" - means any project, or that portion thereof, planned, undertaken or financed
5 through the City or any governmental entity for construction,reconstruction,maintenance,or repair
6 of Public Improvements, or for any other purpose of a public nature or in the public interest. In
7 designating a project as a Public Project,the City shall use reasonable discretion.
8 (f) "Public Right-of-Way"-means only the area of real property in which the City has a dedicated
9 or acquired right-of-way interest in the real property. It shall include the area on, below or above
10 the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated
11 or acquired as right-of-way. The term does not include the airwaves above a right-of-way with
12 regard to wireless telecommunications or other non-wire telecommunications or broadcast service,
13 easements obtained by utilities or private easements in platted subdivisions or tracts.
14 (g) "Private Development Project" - means a project, or that portion thereof, planned, undertaken
15 or financed by a non-governmental third-party that is primarily for the benefit and use of the third
16 party.As used herein,the term Private Development Project does not include any project or portion
17 that is a Public Project.
18 (h) "Telecommunication Services" - means providing the means of transmission, between or
19 among points specified by the user, of information of the user's choosing, without change in the
20 form or content of the information as sent and received.
21 Section 3. Basic Grant of Franchise.
22 (a) There is hereby granted nonexclusive license to construct, maintain, extend and operate its
23 Facilities along, across, upon or under any Public Right-of-way for the purpose of supplying
24 Telecommunication Services to the consumers or recipients of such service located within the corporate
25 boundaries of the City, for the term of this Agreement, subject to the terms and conditions of this
26 Agreement.
27 (b) The grant of this Agreement by the City shall not convey title, equitable or legal, in the Public
28 Right-of-way, and shall give only the right to occupy the Public Right-of-Way, for the purposes and
29 for the period stated in this Agreement. This Agreement does not:
30 (I) Grant the right to use Facilities or any other property, telecommunications related or
31 otherwise, owned or controlled by the City or a third-party, without the consent of such party;
32 (2) Grant the authority to construct, maintain or operate any Facility or related appurtenance
33 on property owned by the City outside of the Public Right-of-Way, specifically including, but
34 not limited to, parkland property, City Hall property or public works facility property; or
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1 (3) Excuse Grantee from obtaining appropriate access or attachment agreements before
2 locating its Facilities on the Facilities owned or controlled by the City or a third-party.
3 (c) As a condition of this grant, Grantee is required to obtain and is responsible for any necessary
4 permit, license, certification, grant, registration or any other authorization required by any appropriate
5 governmental entity.Grantee shall also comply with all applicable laws,statutes and/or City regulations
6 (including, but not limited to those relating to the construction and use of the Public Right-of-Way or
7 other public property).
8 (d) This authority to occupy the Public Right-of-Way shall be granted in a competitively neutral
9 and nondiscriminatory basis and not in conflict with State or Federal Law.
10 Section 4.Use of Public Right-of-Way.
11 (a) Grantee shall have the right to construct, maintain and operate its Facilities along,across, upon
12 and under the Public Right-of-Way. Such Facilities shall be so constructed and maintained as not to
13 obstruct or hinder the usual travel or public safety on such public ways or obstruct the legal use by other
14 utilities.
15 (b) Grantee's use of the Public Right-of-way shall always be subject and subordinate to the
16 reasonable public health, safety and welfare requirements and regulations of the City. The City may
17 exercise its home rule powers in its administration and regulation related to the management of the
18 Public Right-of-Way; provided that any such exercise must be competitively neutral and may not be
19 unreasonable or discriminatory.Grantee shall be subject to all applicable laws and statutes,and/or rules,
20 regulations, policies, resolutions and ordinances adopted by the City, relating to the construction and
21 use of the Public Right-of-Way.
22 (c) Further, Grantee shall comply with the following:
23 (1) Grantee's use of the Public Right-of-Way shall in all matters be subordinate to the City's
24 use or occupation of the Public Right-of-Way. Without limitation of its rights, the City
25 expressly reserves the right to exercise its governmental powers now and hereafter vested
26 or granted in the City.Grantee shall coordinate the installation of its Facilities in the Public
27 Right-of-way in a manner which minimizes adverse impact on Public Improvements, as
28 reasonably determined by the City. Where installation is not otherwise regulated, the
29 Facilities shall be placed with adequate clearance from such Public Improvements so as
30 not to impact or be impacted by such Public Improvement as defined in the City's Engi-
31 neering Design Standards and Construction Specifications.
32 (2) All earth, materials, sidewalks, paving, crossings, utilities, Public Improvements, or
33 improvements of any kind located within the Public Right-of-Way damaged or removed
34 by Grantee in its activities under this Agreement shall be fully repaired or replaced
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1 promptly by Grantee without cost to the City to the reasonable satisfaction of the City;
2 however,when such activity is a joint project of utilities or franchise holders,the expenses
3 thereof shall be prorated among the participants, and to the reasonable satisfaction of the
4 City in accordance with the ordinances and regulations of the City pertaining thereto.
5 Nothing in this Agreement shall require Grantee to repair or replace any materials, trees,
6 flowers, shrubs, landscaping or structures that interfere with Grantee's access to any of its
7 Facilities located in a utility easement. Any excavation,back filling,repair and restoration,
8 and all other work performed in the rights-of-way shall be done in conformance with the
9 City's Engineering Design Standards and Construction Specifications, as promulgated by
10 the City Engineer. The City Engineer has the authority to inspect the repair or replacement
11 of the damage,and if necessary,to require Grantee to do the additional necessary work.At
12 the time of any inspection, the City Engineer may order the immediate cessation of any
13 work, which poses a serious threat to the life, health, safety, or wellbeing of the public.
14 Notice of the unsatisfactory restoration and the deficiencies found will be provided to
15 Grantee and a reasonable time not to exceed thirty(30)days will be provided to allow for
16 the deficiencies to be corrected.
17 (3) Except in the event of an emergency, as reasonably determined by Grantee, Grantee shall
18 comply with all laws, rules, regulations, policies, resolutions, or ordinances now or
19 hereinafter adopted or promulgated by the City relating to any construction,reconstruction,
20 repair, or relocation of Facilities which would require any street closure which reduces
21 traffic flow.Notwithstanding the foregoing exception all work, including emergency work
22 performed in the traveled way or which in any way impacts vehicular or pedestrian traffic
23 shall be properly signed, barricaded, and otherwise protected.
24 (4) Grantee shall maintain and file with the City updated maps,in such form as may be required
25 by the City Engineer, providing the location and sufficient detail of all existing and new
26 facilities in the Public Right-of-Way, and such other related information as may be
27 reasonably required by the City Engineer of all users of the rights-of-way. Such maps shall
28 be updated and kept current with the City.
29 (5) Grantee shall be responsible for its costs that are directly associated with its installation,
30 maintenance, repair, operation, use, and replacement of its Facilities within the Public
31 Right-of-Way. Grantee shall be responsible for its own costs incurred removing or
32 relocating its Facilities when required by the City due to City requirements relating to
33 maintenance and use of the Public Right-of-Way for government purposes, as part of a
34 Public Project consistent with the City utility relocation policy in effect at the time.
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1 (6) Grantee shall take adequate measures to protect and defend its Facilities in the Public
2 Right-of-Way from harm or damage. If Grantee fails to accurately locate Facilities when
3 requested, it shall have no claim for costs or damages against the City.
4 (7) At a minimum, and without limitation, Grantee shall comply with all building and zoning
5 codes currently or hereafter in force in the City.
6 (8) Grantee shall comply with all technical and zoning standards governing construction,
7 reconstruction, installation, operation, testing, use, maintenance, and dismantling of the
8 Facilities in the Public Right-of-Way,as required by present and future Federal, State,and
9 City Laws and Regulations.
10 (9) Permission is hereby granted to the Grantee to trim trees upon and overhanging the right-
11 of-way. For routine trimming operations, customers shall be contacted at least one (1)-
12 week in advance by either personal contact or by informational door hanger.
13 (10) Grantee shall provide the City, free of any charge, four(4) dark fiber pair to be used by
14 the City for public purposes in connection with its operations("City Fibers").
15 (i) City's use of City Fibers shall be limited to City and other political subdivisions or
16 other public entities affiliated with the City("City Entities"). Except to City Entities,
17 City may not assign, lease,or allow any other party the right to use the City Fibers,the
18 cable, or system without Grantee's express consent. Any other use the City Fibers by
19 City shall be grounds for Grantee to reclaim the City Fibers.
20 (ii) Legal title to Grantee's facilities including the fiber optic communications system,
21 including fiber and cable sheathing and any bridge attachments, conduits, brackets,
22 insulators, fixtures, guy wires, anchors, splice boxes, fiber distribution centers, and
23 other hardware needed or used to fasten or support the cable shall be held by Grantee.
24 Neither anything contained in this Franchise, nor any use, however extended, of the
25 City Fibers, nor any placement of City's facilities on or in the private network, shall
26 create or vest(or be construed as creating or vesting) in City any right,title or interest
27 in or to any real or personal property owned by Grantee other than the rights contained
28 in this Franchise for the City Fibers.
29 (iii)Grantee, at the City's cost, shall perform all splicing, maintenance, and repairs to
30 the City Fibers. Cost to the City shall be the actual invoice cost for such splicing,
31 maintenance, and repairs plus 10%. Grantee shall provide actual documentation for
32 splicing, maintenance, and repair which shall be included with the invoice to the City.
33 (11) If Grantee leases fiber to private entities,the City may assess a franchise fee in accordance
34 with Arkansas Statute for revenues realized by Grantee. Any franchise fee charged to
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1 Grantee shall not exceed 4.25%of all revenues subject to the City franchise fee. The City
2 understands and acknowledges that Grantee will pass through all franchise fees assessed
3 by the City to all applicable Grantee customers.
4 Section 5.Indemnity and Hold Harmless Requirements.
5 (1) Unite shall indemnify, defend and hold harmless(the"Indemnifying Party")the City, its directors,
6 officers, employees, representatives, members, partners, trustees and affiliates (collectively the
7 "Indemnified Party")from and against any and all costs, liabilities, losses and expenses(including,but not
8 limited, reasonable attorneys' fees) resulting from any claim, demand, suit, action,judgment, loss or pro-
9 ceeding brought against the Indemnified Party for:
10 (a) personal injury including death;
11 (b)the damage to any personal or real property;
12 (c)any unauthorized use of the facilities of the Indemnified Party; or
13 (d) a violation of any United States intellectual property right including patents, copyrights,
14 trademarks, or service marks all of which must be established under United States Law, arising
15 directly or indirectly from the negligence or intentional acts or omissions of the Indemnifying Party
16 or its directors,officers,employees, contractors, representatives or agents. If Grantee and the City
17 are found jointly liable by a court of competent jurisdiction, liability shall be apportioned
18 comparatively in accordance with the laws of the state of Missouri without, however, waiving any
19 governmental immunity available to the City under State Law and without waiving any defenses
20 of the parties under State or Federal Law.
21 (2) During any construction phase, Grantee shall have in place commercial, general liability, and au-
22 tomobile liability insurance in amounts acceptable to the City.
23 Section 6. Reservation of Rights.
24 (a) The City specifically reserves its right and authority as a customer of Grantee and as a public
25 entity with responsibilities towards its citizens, to participate to the full extent allowed by law in
26 proceedings concerning Grantee's rates and services to ensure the rendering of efficient
27 Telecommunications Service and any other services at reasonable rates, and the maintenance of
28 Grantee's property in good repair.
29 (b) In entering into this Agreement, neither the City's nor Grantee's present or future legal rights,
30 positions, claims, assertions or arguments before any administrative agency or court of law are in
31 any way prejudiced or waived. By entering into this Agreement,neither the City nor Grantee waive
32 any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or
33 Grantee may have at law or equity, without limitation,to argue, assert, and/or take any position as
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1 to the legality or appropriateness of any present or future laws, non-franchise ordinances and/or
2 rulings.
3 Section 7. Failure to Enforce. The failure of either the City or the Grantee to insist in any one or
4 more instances upon the strict performance of any one or more of the terms or provisions of this Agreement
5 shall not be construed as a waiver or relinquishment for the future of any such term or provision, and the
6 same shall continue in full force and effect. No waiver or relinquishment shall be deemed to have been
7 made by the City or the Grantee unless said waiver or relinquishment is in writing and signed by both the
8 City and the Grantee.
9 Section 8. Term and Termination Date.
10 (a) This Agreement shall be effective for a term of ten (10) years from the effective date of this
11 Agreement. Thereafter,this Agreement will renew for additional five (5)-year terms, unless either
12 party notifies the other party of its intent to terminate or renegotiate the Agreement at least 180
13 days before the termination of the then current term. The additional term shall be deemed a
14 continuation of this Agreement and not as a new franchise or amendment.
15 (b) Upon written request of either the City or Grantee,this Agreement shall be renegotiated at any
16 time in accordance with the requirements of State Law upon any of the following events: changes
17 in Federal, State,or local laws,regulations,or orders that materially affect any rights or obligations
18 of either the City or Grantee.
19 (c) In the event the parties are actively negotiating in good faith a new agreement or an amendment
20 to this Agreement upon the termination date of this Agreement, the parties by written mutual
21 agreement may extend the termination date of this Agreement to allow for further negotiations.
22 Such extension period shall be deemed a continuation of this Agreement and not as a new franchise
23 license or amendment.
24 Section 9. Point of Contact and Notices. Unite shall at all times maintain with the City a local point
25 of contact who shall be available at all times to act on behalf of Grantee in the event of an emergency.
26 Grantee shall provide the City with said local contact's name, address, telephone number, fax number and
27 e-mail address. Emergency notice by Grantee to the City may be made by telephone to the City Clerk or
28 the Public Works Department Director. All other notices between the parties shall be in writing and shall
29 be made by personal delivery, depositing such notice in the U.S. Mail, Certified Mail, return receipt
30 requested,or by facsimile.Any notice served by U.S. Mail or Certified Mail,return receipt requested, shall
31 be deemed delivered five(5)calendar days after the date of such deposit in the U.S. Mail unless otherwise
32 provided. Any notice given by facsimile is deemed received by the next business day. "Business day" for
33 purposes of this section shall mean Monday through Friday, City and/or Grantee observed holidays ex-
34 cepted.
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1 If to City: Office of the City Manager
2 500 West Markham Street, 2nd Floor
3 Little Rock, Arkansas 72201
4 (501)371-4510
5 If to Unite: Unite Private Networks, LLC
6 Attn: Matthew Van Hoesen
7 950 West 92 Highway, Suite 203
8 Kearney, MO 64060
9 (913)957-8203
10 Section 10. Transfer and Assignment.This Agreement is granted solely to the Grantee and shall not
11 be transferred or assigned without the prior written approval of the City which shall be in accordance with
12 applicable law; provided that such transfer or assignment may occur without written consent of the City to
13 a wholly owned parent or subsidiary, between wholly owned subsidiaries, or to an entity acquiring all or
14 substantially all of Grantee's assets, upon notice to the City.
15 Section 11. Acceptance of Terms. Grantee shall have sixty (60) days after the final passage and
16 approval of this Agreement to file with the City Clerk its acceptance in writing of the provisions,terms and
17 conditions of this Agreement,which acceptance shall be duly acknowledged before some officer authorized
18 by law to administer oaths;and when so accepted,this Agreement and acceptance shall constitute a contract
19 between the City and Grantee subject to the provisions of the laws of the State of Missouri, and such
20 contract shall be deemed effective on the date Grantee files acceptance with the City.
21 Section 12. Force Majeure. Each and every provision hereof shall be reasonably subject to acts of
22 God, fires, strikes, riots, floods, war and other disasters beyond Grantee's or the City's control.
23 This FRANCHISE is entered into as of the day of 2013.
GRANTEE CITY
By: By:
Title: Title:
24 Section 5. Severability. In the event any section, subsection, subdivision, paragraph, subparagraph,
25 item, sentence, clause, phrase, or word of this ordinance is declared or adjudged to be invalid or
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1 unconstitutional, such declaration or adjudication shall not affect the remaining provisions of this
2 ordinance, as if such invalid or unconstitutional provision were not originally a part of this ordinance.
3 Section 6. Repealer. All ordinances, resolutions, bylaws, and other matters inconsistent with this
4 ordinance are hereby repealed to the extent of such inconsistency.
5 PASSED: July 9,2013
6 ATTEST: APPROVED:
/ / / / /
8 QQ ---....,\
9 Susan a 1'y,CI Clerk Mark Stodola,Mayor
10 APPR V 0 LEGAL FORM:
11
12 `�97.2.'7) ail 0.4,4‘7f
13 Thomas M. Carpenter,City Attc{yney
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