HomeMy WebLinkAbout22102 1 ORDINANCE NO. 22,102
2
3 AN ORDINANCE TO GRANT A FRANCHISE TO UNITI FIBER,LLC,AS
4 A TELECOMMUNICATION AND FIBER OPTICS SERVICE PROVIDER;
5 TO PERMIT THE USE OF RIGHTS-OF-WAY AND AIRSPACE WITHIN
6 THE CORPORATE LIMITS OF THE CITY OF LITTLE ROCK,
7 ARKANSAS; TO RESERVE FOR BOTH PARTIES THE RIGHT TO SEEK
8 MODIFICATIONS OF THIS AGREEMENT AS MAY BE REQUIRED BY
9 CHANGES IN FEDERAL OR STATE LAW; TO DECLARE AN
10 EMERGENCY; AND FOR OTHER PURPOSES.
11
12 WHEREAS, Uniti Fiber, LLC ("Uniti"), is a Fiber Optic Telecommunications Network that intends
13 to provide fiber optic,cable telecommunications and other services,through a network for users within the
14 corporate limits of the City of Little Rock, Arkansas("the City"); and,
15 WHEREAS, in order to provide these services Uniti, like other such providers,will need access to the
16 streets, alleys, airways and other public rights-of-way within the corporate limits of the City;and,
17 WHEREAS,pursuant to the agreement that is incorporated in this ordinance the City is allowed, and
18 does,assess a Franchise Fee as a rental payment which Uniti agrees to pay.
19 NOW,THEREFORE,BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY
20 OF LITTLE ROCK,ARKANSAS:
21 Section 1. Uniti is hereby granted a Non-Exclusive Franchise to occupy City streets, alleys, airways
22 and other public rights-of-way within the corporate limits of the City,pursuant to Regulations and Statutes
23 of the Federal Government,the State of Arkansas,and the City.
24 Section 2. The terms and conditions of this franchise include the following:
25 UNITI FIBER LLC
26 TELECOMUNICATIONS NETWORK
27 FRANCHISE AGREEMENT
28
29 This Agreement is entered into this day of March, 2022, between the City of Little Rock,
30 Arkansas, a Municipal Corporation duly organized pursuant to the laws of the State of Arkansas,
31 and Uniti Fiber, LLC, a limited-liability corporation duly organized pursuant to the laws of the
32 State of Delaware,and authorized to do business in the State of Arkansas,
33
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1 WITNESSETH
2
3 WHEREAS, the City of Little Rock, Arkansas (the "City"), recognizes that
4 telecommunications services are essential to health, safety, welfare and economic development of
5 the businesses,residents and of the City; and,
6 WHEREAS, Uniti Fiber, LLC, a limited-liability corporation organized pursuant to the laws
7 of the State of Delaware (hereafter "the Company") and licensed to do business in the State of
8 Arkansas, has asked for a Franchise to use the public rights-of-way including, but not limited to,
9 streets,alleys,sidewalks and air rights(to the extent air rights are related to facilities attached to or
10 between poles) that belong to the City, to install conduit, fiber optic cable and a
11 Telecommunications Network that will facilitate the connection of businesses, residences and
12 public agencies located within the City to a Telecommunications Network; and,
13 WHEREAS, the parties agree that the Company is a utility with which a written Franchise
14 Agreement may be entered into pursuant to A.C.A. 14-200-101.
15 NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND
16 AGREEMENTS SET FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND
17 AGREE AS FOLLOWS:
18 DEFINITIONS
19
20 1. Event of Default. The events set forth in this Agreement that are a basis for the involuntary
21 termination of this Franchise.
22 2. Fiber Optic Telecommunications Network, Network or Telecommunications Network. The
23 Company's system of cables, wires, lines, towers, wave guides, optic fiber, microwave, laser
24 beams, and any associated converters, equipment, and facilities designed and constructed for
25 the purpose of producing,receiving,amplifying,or distributing,by audio,video,or other forms
26 of electronic signals, authorized telecommunications services to or from subscribers or
27 locations within or through the City.
28 3. Gross Revenue. All revenues,(excluding sales tax,extension,terminal equipment,toll,access,
29 yellow pages and miscellaneous equipment revenues) collected by the Company: for local
30 Intrastate Wireline Telecommunications Services provided by the Company and billed to its
31 end user customers,in both respects,within the corporate limits of the City and from operation
32 of the Company's Network installed pursuant to this Agreement. Notwithstanding the
33 foregoing definition, the term Gross Revenues shall not include the following: (I) those
34 revenues that the Company has received or will receive from another Telecommunications
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1 Service Provider and upon which the other telecommunications provider has paid,or will pay,
2 a Franchise Fee; and (2) revenues that the Company has received from its corporate parent,
3 subsidiary,or an affiliate.
4 4. Public Rights-of-Way or City Rights-of-Way. Streets, avenues, alleys, bridges, viaducts,
5 rights-of-way, easements, grounds and other similar public places owned or controlled by,
6 leased to or granted to the City.
7 SECTION 1
8 GRANT OF AUTHORITY
9 1.1 Grant of Franchise. The Company is hereby granted a Franchise (the "Franchise") to
10 occupy and use the public rights-of-way and airways within and belonging to the City in order to
11 construct, operate, maintain, upgrade, repair and remove a Telecommunications Network subject
12 to the terms and conditions of this agreement.
13 1.2 Term of Agreement. This Agreement shall commence on March , 2022, and shall
14 continue in force in accordance with A.C.A. § 14-200-103 or unless the Franchise is terminated by
15 abandonment or by agreement of the Parties. Upon expiration or termination of the Franchise,all
16 rights and obligations of the Company granted under this Agreement shall cease.
17 1.3 Nonexclusive Franchise.The Franchise is nonexclusive.Nothing in this Agreement shall
18 limit or otherwise restrict the right of the City to enter into agreements with other companies for
19 use of the City's rights-of-ways and airways.
20 1.4 Scope of Franchise. The scope of the Franchise awarded pursuant to this Agreement is
21 limited to the incorporated area of the City.The Parties agree that their entrance into this Agreement
22 is without prejudice to any positions they may have taken previously, or may take in the future, in
23 any legislative, regulatory, judicial, municipal, or other public forum addressing any matters,
24 including matters related to the same types of arrangements covered in this Agreement. This
25 Agreement does not give the Company any right to use or occupy any public right-of-way
26 controlled by a City utility unless agreed to by such utility.
27 1.5 Reservation of Authority. The City reserves the right to perform any necessary public
28 works or make any necessary public improvements to the City's rights-of-ways or airways(to the
29 extent airways are related to facilities attached to or between poles) during the term of this
30 Agreement. If, as a result of any action by the City,or by any action authorized by the City for the
31 benefit of the public good, re-location of any of the Company's conduit or other facilities is
32 required, such relocation shall be accomplished at the sole expense of the Company. Nothing in
33 this Franchise shall be deemed a waiver of the City's right to require the Company to comply with
34 all applicable zoning and other applicable regulatory ordinances or to pay any reasonable permit
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1 fees or to seek appropriate authorizations from the Company to perform any work in connection
2 with the Franchise. Should the City close,eliminate,or discontinue use of any public street during
3 the term of this Franchise, or any renewal term, this Franchise shall cease with respect to such
4 streets upon the date of final action by the City with respect to the closure, elimination, or
5 discontinuance of such streets.
6 1.6 Notice of Intention to Construct. The City has vested interest in assuring that any
7 disruption of the flow of traffic, or the digging or creation of a trench in any of the streets,be kept
8 to a minimum. In order to facilitate this interest,the City and the Company agree to the following:
9 1.6.1 Upon application by the Company for a Construction Permit to open the street, the
10 City shall provide notice to other utilities in accordance with applicable ordinances of the City.
11 During such time period provided the ordinance,the City shall withhold approval of any such
12 permits so that any other public utility that desires to do so will be allowed to ask to
13 simultaneously lay conduit, or other appropriate equipment, in any trench opened by the
14 Company. The Director of Public Works may extend time for emergency situations if another
15 public utility so desires. The Company will permit that public utility to simultaneously lay
16 conduit, or other appropriate equipment, in any trench opened by the Company provided: (i)
17 the other utility shares in the cost of opening and repairing the trench;(ii)the utility's desire to
18 so participate does not unnecessarily delay the Company's construction schedule.
19 1.6.2 The Company agrees that if, pursuant to a similar application from other public
20 utilities, it receives notice from the City of a request for a permit to open the streets, the
21 Company shall determine whether to participate in the opening of any trench by that utility and
22 shall participate in such a project pursuant to the terms of this Subsection.
23 1.6.3 For purposes of this Subsection, "public utility" means any of the following entities
24 operating within the City: gas provider; cable television company; electric service provider;
25 interexchange; long distance or Local Exchange Telecommunications Services provider; any
26 entity(including the State of Arkansas)operating a Fiber Optic Telecommunications Network
27 in the City, Little Rock Water Commission, Little Rock Sanitary Sewer Committee, and any
28 other entity laying pipes,cables,conduits,or wires on,over,or beneath City rights-of-way and
29 that have a Franchise from the City.
30 SECTION 2
31 CONSTRUCTION REQUIREMENTS
32 2.1 Quality. All work involved in the construction, operation, maintenance, repair, upgrade,
33 and removal of the Network that is permitted by this Franchise shall be performed in a safe,
34 thorough,reliable manner using materials of good and durable quality in accordance with generally
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1 accepted construction standards. If, at any time, it is determined by the City that any part of the
2 network is harmful to the health or safety of any person, then the Company shall at its own cost
3 and expense,promptly correct all such conditions. For purposes of this Subsection,promptly shall
4 mean twenty-four(24)hours, or a longer period of time if and only if additional time is granted in
5 writing by the Director of Public Works acting with the advice and consent of the City Manager.
6 2.2 Aesthetic Construction Requirements. Before the Company constructs, extends or
7 replaces its Network, except in the case of minor maintenance as may be defined by the City, it
8 shall file with the City's Director of Public Works a written work description, including scale
9 drawings, showing the Network's location and, if applicable, estimated depth of the facilities. The
10 plans will be reviewed by the Director of Public Works and any comments will be provided to the
11 Company within ten (10) business days. The City agrees to expedite its review when conditions
12 warrant. Before the Company repairs its Network, the Company shall give notice to the City's
13 Director of Public Works as to the time and location of the proposed repairs and obtain permits
1 4 required by the City Code. The Company will provide a thirty(30) day schedule of planned work
15 at the beginning of each month. When an emergency occurs, repairs shall be performed by the
16 Company and notice shall be given to the Director of Public Works within twenty-four(24)hours
17 following emergency repairs. Any construction project shall be completed within thirty (30)days
18 from the date that the Department of Public Works issues any necessary permits,provided that the
19 Director of Public Works may allow reasonable extensions due to weather or Acts of God,or other
20 reasonable circumstances that in the sole discretion of the Director of Public Works justifies an
21 extension of the project target completion date. If the City requires the Company to remove,alter,
22 change, adapt or conform its Network to enable any other person or entity to use, or to use with
23 greater convenience, the rights-of-way, or in connection with dedication or street buildout
24 requirements related to third party action,the Company shall be obligated to make such changes to
25 its Network only if said person or entity commits and post appropriate bond, if required by
26 Company, to reimburse the Company for any loss and expense which will be caused by or which
27 will arise out of such changes to the Company's Network.
28 2.3 No Liability to the Company.Neither the City nor its officers, employees,agent(except
29 independent contractors), attorneys, or consultants shall have any liability, except in the case of
30 intentional acts or omissions of the City, to the Company for any liability as a result of any
31 disruption or damages to the Network that occur as a result of or in connection with any protection,
32 breaking through, street cave-in, movement, removal, alteration, or relocation of any part of the
33 Network by or on behalf of the Company or the City in connection with any emergency public
34 work of any nature whatsoever, improvement, alteration of municipal structure, any change in the
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1 grade or line of any street,or the elimination,discontinuation,and closing of any street,as provided
2 for in this Agreement. Except, however,the City shall reasonably attempt to avoid any damage to
3 the Company's Network and shall,except in emergency situations,provide reasonable notice to the
4 Company so as to allow the Company to protect its Network.
5 2.4 New Construction or Extension of Facilities. Before the Company constructs new
6 Network facilities or extends existing Network facilities, or before it uses Network facilities that
7 were in existence in the City prior to the effective date of this Agreement, the Company shall, as
8 reasonably possible, provide to the City's Public Works Director its Network location data in
9 conformance with the City's standards.The City shall be notified of any extension of the network,
10 construction, including other preparation for the extension of conduit or any facilities within public
11 rights-of-way (not including lateral connections under sidewalks that do not interfere with the
12 normal flow of traffic on the City streets or public rights-of-way for which permits have been
13 issued).
14 SECTION 3
15 COMPENSATION TO THE CITY
16 3.1 Franchise Fees—Amount.The Company shall pay to the City Franchise Fees beginning
17 with the calendar year immediately following its generation of Gross Revenues, an amount equal
18 to 5%of Gross Revenues as defined in this Agreement. The rate shall be 5%unless or until agreed
19 otherwise between the parties or otherwise changed by law and shall be ratified annually by the
20 City as appropriate.
21 3.1.1 In addition to the Franchise Fee, the Company shall provide City, upon City's
22 request, the exclusive use of two (2) fiber pairs per each location where the Company shall,
23 after the date of this Franchise and incorporating Ordinance, install fiber optic facilities that
24 include at least ninety-six (96) fibers. Company shall have no obligation to provide City any
25 Optronics, electronics, power or other services or facilities in connection with such two (2)
26 fiber pairs. The Company shall have no obligation to provide the City with any fibers on the
27 pre-existing network or at any locations that existed pre-dating the date of this said Franchise,
28 but,rather only on new builds performed by the Company which take place on or after the date
29 of this said Franchise and incorporating ordinance. City's exclusive use of the two (2) fiber
30 pairs provided by the Company shall be limited solely to governmental functions and shall not
31 be used directly or indirectly or made available directly or indirectly for use by the public or
32 for compensation.
33 3.1.2 The payment of a Franchise Fee by the Company in no way limits the right of the
34 City to charge fees for any permits the Company is required to obtain for any construction
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1 project; nor does the payment of a franchise fee preclude the right of the City to assess a
2 reasonable Business License Cee.
3 3.2 Franchise Fees—Payment. All such payments of Franchise Fee required by this Section
4 shall be made quarterly and, in any event,no later than fifteen(15)days after March 31St;June 30th;
5 September 30th; and December 31St of each year.
6 3.3 Franchise Fee Payments Subject to Audit; Remedy for Underpayment.All Franchise
7 Fee payments shall be made pursuant to a form provided by and acceptable to the Finance Director
8 and Treasurer of the City. No acceptance of any Franchise Fee payment by the City shall be
9 construed as an accord and satisfaction that the amount paid is in fact the correct amount,nor shall
10 acceptance be deemed a release of any claim the City may have for further or additional sums
11 payable pursuant to this Franchise. All amounts paid shall be subject to audit and recomputation
12 by the City in accordance with the provisions of this Agreement.
13 3.4 Authority to Pass Franchise Fee Payments on to System End Users. To the extent
14 provided by lav,. the Company is permitted to collect any Franchise Fee assessed by the City from
15 its customers.
16 SECTION 4
17 OVERSIGHT AND REGULATION
18 4.1 The City's Right of Oversight. The City shall have the right to oversee and periodically
19 inspect the construction,operation,maintenance and upgrade of the Network,and all parts thereof,
20 in accordance with the provisions of this Franchise and applicable law. The City reserves the right
21 to adopt such rules, regulations, orders, or other directives governing the Company's construction
22 and maintenance of the Network as it shall find necessary or appropriate in the exercise of its Police
23 Power, and such other orders as the City shall find necessary or appropriate pursuant to and in
24 furtherance of the purposes of this Franchise. The Company,without waiving its right to appeal or
25 to seek a stay or injunctive relief, expressly agrees to comply with all rules, regulations, orders,or
26 other directives issued pursuant to this Section.No rule, regulation, order,or other directive issued
27 pursuant to this Section shall constitute an amendment to this Franchise.
28 4.2 Proprietary Information as Property of the Company. The City and the Company
29 recognize that in order to comply with all the terms and conditions of this Franchise it may, on
30 occasion, be necessary for the Company to provide the City access to certain proprietary
31 information.To the extent that such information is individually noted and marked"Proprietary" by
32 the Company,the City acknowledges that such information will always be considered to be in the
33 sole custody and control of the Company, that the information will only be reviewed by the City
34 and, that despite the immediate location of such material, the Company shall never be deemed to
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1 have provided it to the City for its possession and control nor to include such information as a part
2 of any public record. In the absence of a court order issued by a court of competent jurisdiction,or
3 a subpoena duly issued according to law, should any person request access to such information
4 solely upon the basis of State or Federal Freedom of Information Laws,the City shall immediately
5 return the information to the Company with notice of the request, shall refuse access to the records
6 to the requesting party,and shall complete any necessary review at the Company's office.
7 4.3 Financial Reports. The Company shall, subject to appropriate proprietary treatment and
8 protection,make available to the City not later than three(3)months after the end of the Company's
9 Annual Fiscal Periods with respect to the period just ended: a copy of the Company's appropriate
10 financial statements as necessary, which statements shall, unless otherwise agreed to by the City,
11 be certified by the Company's Chief Financial Officer in accordance with Generally Accepted
12 Accounting Principles;and a Statement of the Gross Revenues subject to Franchise Fees under this
13 Agreement and a calculation of fees due the City certified to be true and correct by the Company's
14 Chief Financial Officer. The parties shall mutually agree on the appropriate reporting format to be
15 utilized by the Company.
16 SECTION 5
17 RESTRICTIONS AGAINST ASSIGNMENTS AND OTHER TRANSFERS
18 5.1 Transfer of Franchise or Interest Therein. The Company may not, except to a wholly-
19 owned subsidiary or entity under common ownership to the Company, assign, sell, or transfer in
20 any manner, in whole or in part, its right,title or interest in any part of the Network. The Company
21 shall give notice to the City of any such assignment, sale,or transfer. The Company shall have the
22 right to mortgage or pledge a portion or all of the Network in order to secure financing of the
23 Company's operations obtained in the ordinary course of business of the Company.
24 Notwithstanding the foregoing, no mortgage or pledge entered into by the Company shall relieve
25 any person, including the Mortgagor or pledgor, of any of the terms and conditions of this
26 Agreement. Should any person, including the Company, default or otherwise be deemed in
27 violation of the terms of this Agreement, the City shall be permitted to exercise all its rights,
28 privileges,and remedies pursuant to this Agreement.
29 SECTION 6
30 SPECIFIC RIGHTS AND REMEDIES
31 6.1 Nonexclusive Remedies. The Company agrees that the City shall have the specific rights
32 and remedies set forth in this Agreement. These rights and remedies are in addition to and
33 cumulative with any and all other rights or remedies,express or implied,now,or hereafter available
34 to the City at law or in equity in order to enforce the provisions of this Franchise. Such rights and
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1 remedies shall not be exclusive, but each and every right and remedy specifically provided or
2 otherwise existing or given may be exercised from time to time and as often an in such order as
3 may be deemed expedient by the City. The exercise of any such right or remedy by the City shall
4 not release the Company from its obligations or any liability under this Franchise, except as
5 expressly provided for in this Franchise or as necessary to avoid duplicative recovery from or
6 payment by the Company or its Grantor.
7 6.2 Events of Default. The Company agrees that an Event of Default shall include, but shall
8 not be limited to, any of the following acts or failure to act by the Company or any Affiliated
9 Person:
10 6.2.1 Failure to obtain any applicable permits from the Department of Public Works of the
1 1 City before making material expansions to the Network.
12 6.2.2 Failure to supply insurance,bonds,or letters of credit as may be required by the City
13 to assure the proper completion of any restoration or repair performed pursuant to the
14 Franchise.
15 6.2.3 Failure to make any of the payments set forth in this Franchise.
16 6.2.4 Failure to pay any permit fees, or substantial failure to comply with any applicable
17 rules, regulations, orders, or directives of the City as set forth in this agreement.
18 6.2.5 Failure to materially comply with agreed construction and repair schedules.
19 6.2.6 Filing of bankruptcy.
20 6.3 City Action upon Occurrence of an Event of Default. Upon the occurrence of an Event
21 of Default under Section 6.2.1,6.2.4,or 6.2.5,the Company may be subjected to appropriate fines
22 or penalties as provided by the City and with respect to Events of Default specified in Section 6.2.2,
23 6.2.3 or 6.2.6,the City may, in accordance with the procedures provided for in this Franchise:
24 6.3.1 Require the Company to take such actions as necessary to cure the Event of Default;
25 or,
26 6.3.2 Seek money damages from the Company as compensation for such Event of Default
27 or revoke the Franchise by termination of the Agreement.
28 6.4 Procedure to follow upon Breach. The City shall exercise the rights set forth in this
29 Section in accordance with the following procedures:
30 6.4.1 The City Manager shall notify the Company, in writing, of an alleged Event of
31 Default.This written notice shall set forth with reasonable specificity the facts the City believes
32 are the basis for declaring that an Event of Default has occurred. The Company shall, within
33 thirty (30) business days of the date the notice is postmarked, or such additional time as the
34 City Manager may specify in the notice, cure the alleged Event of Default, or, in writing,
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1 present for review by the City Manager a reasonable time frame and method to cure the Event
2 of Default. The Company, in lieu of the cure of the Event of Default as set forth herein, may,
3 present written facts and arguments as to why the Company disagrees that an Event of Default
4 has occurred.
5 6.4.2 If the Company presents a written response that challenges whether an Event of
6 Default has occurred, the City Manager shall within ten (10) days review the submitted
7 materials and determine again whether an Event of Default has occurred. If the City Manager
8 reaffirms that an Event of Default has occurred, the Company shall be notified in writing of
9 this decision and shall,within thirty(30)days,cure the alleged Event of Default.
10 6.4.3 If the Company fails to cure the Event of Default so declared pursuant to this Section
1 I within the time permitted by the City Manager,the City Manager shall prepare a written report
12 to the City Board of Directors and recommend action to be taken.If the City Board of Directors,
13 after consideration of this report, agrees that and Event of Default has occurred, it may order
14 an appropriate remedy as set forth in Section 6.
15 6.5 Removal. In addition to the rights under this Section,the City,upon any termination,may,
16 at its sole discretion, direct the Company to remove, at the Company's sole cost and expense,any,
17 or all of the Network from all streets, rights-of-way and other public property within the City,
18 subject to the following:
19 6.5.1 The City may determine that removal of buried fiber optic cable or conduit, is
20 not necessary.
21 6.5.2 In removing any part of the Network,the Company shall refill and compact,at its
22 own expense, any excavation that shall be made by it and shall leave all streets and other
23 property in as good a condition as that prevailing prior to the Company's removal of the
24 Network.
25 6.5.3 The City shall have the right to inspect and approve the conditions of the streets and
26 public property after removal has occurred.
27 6.5.4 The removal shall commence within thirty (30) days of an order to remove issued
28 by the City Manager at the direction of the City Board of Directors.
29 6.5.5 Prior to the City's exercise of this right, the Company's mortgagees, pledgees, or
30 other persons providing financing to the Company shall have the right to cure the Company's
31 default under this agreement. The City acknowledges that its right to direct the Company to
32 remove the Network provided herein shall be subject and subordinate to the rights of the
33 Company's mortgagee,creditor,pledgee,or other person providing financing to the Company,
34 as described in the written documents evidencing the financing or the security therefore,
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1 provided that such mortgagee, creditor, pledgee, or other person providing financing to the
2 Company, complies with the terms and conditions of this Agreement.
3 6.6 Consent not to Waiver.The grant or waiver of any one or more of the consents required
4 by this Franchise shall not render unnecessary any subsequent consent, nor shall the grant of any
5 such consent constitute a waiver of any other rights of the City and/or the Company.
6 SECTION 7
7 SUBSEQUENT ACTION
8 7.1 Current Enforceability of A2reement. The City and the Company agree that the
9 execution of this Franchise and the terms and conditions are valid in their entirety.
10 7.2 Indemnification.The Company shall indemnify and hold harmless the City and all of its
11 officers, agents, and employees from all suits, actions, or claims of any character, style, and
12 description brought for or on account of any injuries or damages,including environmental damages,
13 disruption of services or death,received or sustained by any person or any property occasioned by,
14 arising out of, or in connection with the negligent acts or omissions of the Company regarding the
15 erection, construction, location, replacement, reconstruction, maintenance, repair, or operation of
16 the Company's Network,and the Company shall pay any judgments, interest,and costs which may
17 be obtained against the City arising out of such injury or damage. If the franchise granted by this
18 agreement is terminated or is not renewed,and the Company does not remove its facilities from the
19 right-of-way,the Company shall continue to indemnify and hold harmless pursuant to this section
20 as long as its facilities are located in the rights-of-way. The City at its option may defend any such
21 action and the parties shall cooperate in any such defense.
22 SECTION 8
23 MISCELLANEOUS
24 8.1 Controlling Law.This Franchise shall be determined according to the laws of the State of
25 Arkansas and venue and jurisdiction to challenge,contest,review,or otherwise subject its terms
26 and conditions to litigation,shall occur in Little Rock,Pulaski County,Arkansas, or in the United
27 States District Court for the Eastern District of Arkansas.
28 8.2 Captions. The captions given to various provisions of this Franchise are for purposes of
29 convenience only and are to have no impact upon the interpretation of any such provisions.
30 8.3 Entire A2reement. This Franchise, with its exhibits, comprises the entire agreement
31 between the City and the Company for purposes of this Franchise.
32 8.4 Burden of Proof. In any disagreement upon the terms and conditions of this Franchise,
33 the Company shall bear the burden of demonstrating its compliance with each term and condition
34 of this Franchise for all purposes.
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1 8.5 No Coercion. The Company and the City enter into this Franchise willingly and
2 without coercion, undue influence, or duress.
3 8.6 Multiple Originals. This Franchise may be executed in any number of copies and any
4 fully-executed copy of this Franchise shall be deemed an original for purposes of authentication or
5 presentation in evidence before any court or administrative tribunal.
6 8.7 Notice.Any notice or communication required in the administration of this ordinance shall
7 be sent by any method that assures overnight delivery and shall be addressed as follows:
8 If to the City:
9 (City Manager)
10 Office of the City Manager
11 500 West Markham Street,Room 203
12 Little Rock,Arkansas 72201
13 If to the Company:
14 Kelly A. McGriff
15 Vice President and Deputy General Counsel
16 Uniti Fiber, LLC
17 2101 Riverfront Drive, Suite A
18 Little Rock, AR 72202
19 kelly.mcgriff@uniti.com
20 SECTION 9
21 INSURANCE
22
23 9.1 Insurance. The Company shall maintain the following insurance coverages and the
24 respective policies thereof shall cover all risks related to and use the occupancy of the right-of-way
25 and all other risks associated with this Franchise Agreement:
26 9.1.1 Description of Insurance Coverage and Limits.
27 9.1.1.1 Commercial General Liability Insurance. Two Million Dollars
28 ($2,000,000.00) for each occurrence - coverage shall include the following: premises;
29 operations; independent contractors; products/completed operations; personal injury;
30 contractual liability; explosion/collapse/underground property damage. Insurance shall be
31 provided on an occurrence basis, be as comprehensive as the current Insurance Services
32 Office(ISO)Policy.
33 9.1.1.2 Automobile Liability Insurance. One Million Dollars($1,000,000.00)each
34 accident-coverage shall be on "any auto", including leased,hired,owned,non-owned and
35 borrowed vehicles.
36 9.1.1.3 Environmental Impairment Liability including Pollution Liability
37 Insurance. If it can reasonably be obtained in the amount of One Million Dollars
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1 ($1,000,000.00) each occurrence - this coverage is to be provided on an occurrence basis
2 and it shall include claims arising from gradual emission and sudden accidents. Clean-up
3 and defense costs shall be covered.
4 9.1.1.4 Workers' Compensation Insurance Statutory Limits. Employer's Liability
5 - minimum Five Hundred Thousand Dollars($500,000.00)for each accident/disease-each
6 employee/disease-policy limit.
7 9.1.2 Other Insurance Related Requirements.
8 9.1.2.1 The City shall be an additional insured, by endorsement, on applicable
9 insurance policies.
10 9.1.2.2 Applicable insurance policies shall be endorsed with a Waiver of Subrogation
11 in favor of the City.
12 9.1.2.3 Insurers shall be authorized to do business in the State of Arkansas, or
13 otherwise approved by the City, and such shall be acceptable to the City insofar as their
14 financial strength and solvency are concerned.
15 9.1.2.4 The City shall be notified within a minimum of thirty (30) days prior to the
16 insurer's action in the event of cancellation, non-renewal or material change coverage
17 regarding any policy providing insurance coverage required in this Agreement.
18 9.1.2.5 Full limits of insurance required in Subsection 9.1.1 of this Section shall be
19 available for claims arising out of this Agreement with the City.
20 9.1.2.6 Certificates of Insurance shall be provided by the Company to the City prior
21 to commencement of operations pursuant to this Franchise. Any failure on part of the City
22 to request such documentation shall not be construed as a waiver of insurance requirements
23 specified herein.
24 9.1.2.7 The City shall be entitled, upon reasonable request, to review the insurance
25 policies, including endorsements thereto and, at its discretion, to require proof of payment
26 for policy premiums.
27 9.1.2.8 The City reserves the right to revise insurance requirements specified herein
28 and require the Company to comply therewith within sixty (60) days of the City's official
29 notice of the revision.
30 9.1.2.9 The City shall not be responsible for paying the cost of insurance coverage
31 required herein.
32 9.1.2.10"Other insurance"as referenced in any policy of insurance providing coverages
33 required herein shall not apply to the City.
(Page 13 of 15]
1 9.1.2.11 The Company shall agree to either require its contractors to maintain the same
2 insurance coverages and limits thereof as specified herein or such coverage on the
3 Company's contractors shall be provided by the Company.
4 WHEREUPON,the City and the Company,acting through their Duly Authorized Officers and
5 pursuant to appropriate authority granted by their respective Boards of Directors,do hereby execute
6 this Agreement.
7 CITY OF LITTLE ROCK,ARKANSAS UNITI FIBER LLC
8
9 By: By:
10 Name: Name: Kelly A. McGriff
11 Title: City Manager Title: VP and Deputy General Counsel
12 Date: Date:
13 ATTEST: ATTEST:
14 By: By:
15 Section 3.Because both the Federal Government and the State of Arkansas have jurisdiction over issues
16 involved in this Franchise Agreement("the Agreement"),and either entity may bring about changes in the
17 laws, or in the regulations to enforce the laws, each party shall have the right to demand a review of the
18 terms of this Agreement upon its conclusion that there has been a change in the law; further, if necessary
19 to do so, and Uniti is not otherwise in default, the parties shall agree to such modification and, by
20 amendment to this ordinance, incorporate it as a part of this Agreement.
21 Section 4.Uniti and the City certify that each has had the opportunity to have this agreement reviewed
22 by respective counsel for their choice prior to execution, and that no term or provision of this Agreement
23 shall be interpreted against any party based upon how the Agreement was drafted, or by whom it was
24 drafted.
25 Section 5. Severability. In the event any title, section, paragraph, item, sentence, clause, phrase, or
26 word of this resolution is declared or adjudged to be invalid or unconstitutional, such declaration or
27 adjudication shall not affect the remaining portions of the resolution which shall remain in full force and
28 effect as if the portion so declared or adjudged invalid or unconstitutional was not originally a part of the
29 resolution.
30 Section 6. Repealer. All laws, ordinances, resolutions,or parts of the same,that are inconsistent with
31 the provisions of this resolution,are hereby repealed to the extent of such inconsistency.
32 Section 7. Emergency Clause. The ability to quickly and appropriately provide corporate citizens,
33 and residential citizens, the opportunity to use competitive Fiber Option Telecommunication and Cable
34 Services, especially since the City of North Little Rock,Arkansas, has already granted a Franchise to Uniti
[Page 14 of 151
1 in North Little Rock, Ark., Resolution No. 10,182 (December 27, 2021), and North Little Rock, Ark,
2 Ordinance No. 9,418 (December 27, 2021), is essential to the public health, safety and welfare; an
3 emergency is, therefore, declared to exist and this ordinance shall be in full force and effect from and after
4 the date of its passage.
5 PASSED: March 8,2022
6ATTES . APPROVED:
7 411044
8 -A1.7.,..,— a%pir---4.11C---
9 'us�a ,gley i y Clerk Frank Scott,Jr.,May
10 APPR I , D A 0 LEGAL FORM:
11
ei
12 / 1191'''''*" l '
13 Thomas M. Carpenter, City Att/rney
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