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HomeMy WebLinkAbout17501M M M M M • ORDINANCE NO. 17,501 • AN ORDINANCE TO GRANT A FRANCHISE TO ALLTEL COMMUNICATIONS, INC., AS A TELECOMMUNICATIONS SERVICES PROVIDER WITHIN THE CITY OF LITTLE ROCK, 389 ARKANSAS; PERMITTING USE OF CITY RIGHTS -OF -WAY AND AIRSPACE; DECLARING AN EMERGENCY; AND FOR OTHER PURPOSES WHEREAS, the City has been requested by ALLTEL Communications, Inc. to grant it a franchise to use the public streets, rights -of -way and airspace to construct and maintain a telecommunications network; and WHEREAS, the City is willing to grant ALLTEL Communications, Inc. a franchise agreement for the use of the public streets and rights -of -way. NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS: SECTION 1. The City approves and grants a franchise agreement to ALLTEL Communications, Inc. ( "ACI" ), pursuant to the terms and conditions of the agreement set forth in the Franchise agreement attached to this ordinance, to use the public streets and rights -of -way for purposes of constructing and maintaining a telecommunications system within the corporate limits of the City of Little Rock, Arkansas. SECTION 2. In addition to any other covenants set forth in Exhibit A, ALLTEL Communications, Inc., agrees to pay the City annually a franchise fee described in the Agreement, for use of the public streets and right -of -way. These fees are to be calculated in accordance with the terms and conditions set forth in the Franchise Agreement. SECTION 3. The term of this franchise agreement shall be for an unlimited period and shall commence on June 4, 1997, provided that ALLTEL Communications, Inc. complies with all terms and conditions *btains all necessary permits required *e City necessary for such work. PASSED: June 3, 1997 ATTEST: o9 D o , Ql awtzz ROBBIE HANCOCK CITY CLERK APPROVED AS TO FORM: THOMAS M. CARPENTE CITY ATTORNEY -2- APPROVED: JIM ILEY MAYOR F. 390. i n L 221 E. Capitol Little Rock, Arkansas 72202 501/376-2903 Fax: 501/376-3541 or 501/688-1463 391 June 19, 1997 Ms. Robbie Hancock City Clerk City Hall Markham & Broadway Little Rock, Arkansas 72201 Re: City of. Little Rock Ordinance— NO17501;,,, An-Ordinance to Grant a Franchise to ALLTEL Communications, Inc. as a Telecommunications Services Provider within the City of Little Rock, Arkansas; Permitting Use of City right - of -way and Airspace; Declaring an Emergency; and for Other Purposes dated June 3, 1997 Dear Ms. Hancock: Prior to the adoption of the captioned ordinance on June 3, 1997, it was my understanding that Alltel would give a separate letter confirming that Alltel claims no right under this agreement to installation of any of its facilities on Little Rock Wastewater Utility's Treatment Plant or pump station properties. However, that letter from Alltel's attorney has not been received despite my request for the letter. This letter is to confirm that the intention of the captioned ordinance is that Alltel has no rights under this agreement to installation of any of its.facilities on Little Rock Wastewater's Treatment Plant, or pump station properties and please — attach —this — letter— to -the ordinance as a part thereof for future - reference to avoid any dispute or misunderstanding on this issue (such as which occurred earlier this year on LRWU's sewer easement on the river near Rebsamen Park). c' .v Ms. Robbie Hancock June 19, 1997 Page 2 392 By copy of this letter to Steve Rowell and Laura Gilson, attorneys' for Alltel, as well as Tom Carpenter, City Attorney, I am advising them of this request, and I am further confirming the telephone conversation to that effect which I had with Tom Carpenter on June 3, 1997, while Steve Rowell was in Tom Carpenter's office prior to the City Board meeting in which the captioned ordinance was adopted, as indicated in my letter of that date, a copy of which is attached hereto. Please telephone me at (501)688 -1403 if we need to discuss this matter further. Y r tru Don F. milton General Counsel DFH /bc Enclosure CC: Steve Rowell Laura Gilson Tom Carpenter Reggie Corbett Thad Luther Steve Giles M 1=11 M Little Roc• 221 E. capitol Wastewater ® Little Rock, Arkansas 72202 501/376-2903 Utility Fax: 501/376 -3541 or 501/688 -1463 June 4, 1997 VIA FAX WITH ORIGINAL TO FOLLOW BY U.S. MAIL Mr. Tom Carpenter City Attorney City of Little Rock City Hall 500 West Markham Little Rock, Arkansas 72201 Fax: 371 -4675 Ms. Laura Gilson Legal Department ALLTEL Communications, Inc. P. O. Box 2177 Little Rock, Arkansas 72203 Fax: 661 -5489 Re: ALLTEL Communications, Inc. Telecommunications Network Franchise Agreement Ordinance on Board Agenda for June 3, 1997 Dear Laura and Tom: It was my understanding after our telephone conversation yesterday that we had agreed to add the following sentence at the end of the last paragraph ending at the top of page 6 of the captioned agreement /ordinance: "This agreement does not give the Company any rights to any property or public rights -of -way controlled by a city utility unless agreed to by such utility." 393 A copy of my notes for that page are enclosed for your quick reference. If for any reason any of this language was not included, please telephone me at 688 -1403. Reggie Corbitt was concerned that "any property" may have been omitted and since we discussed that very point in our r 1 Mr. Tom Carpenter Ms. Laura Gilson June 4, 1997 Page 2 telephone conversation, I wanted to be certain there is no misunderstanding and that reference was in fact included since other property occupied and used by the Utility includes two wastewater treatment plants and pump stations throughout the City. AnF.'tHamilton ruly, General Counsel DFH /bc Cc: Reggie A. Corbitt Thad Luther Robbie Hancock (Fax: 371 -4498) 394 P.S. Since dictating this letter, I have discussed this matter with Tom Carpenter over the telephone to confirm the deletion of the reference to "any property" with the understanding ALLTEL would give a separate letter to the same effect confirming that ALLTEL claims no rights under this agreement to installation of its facilities on LRWU's treatment plant properties or pump stations,_ in which_event_I_am_requesting Mrs. Hancock to file a copy of that letter with the ordinance for ease of future reference. "into this Agreement is without prejudice to any positions they may take in the future, in any legislative, regulatory, judicial, mun J 5/14/97-11 T y have taken previously, o j` addressing any matters, including matters related to the same types of this Agreement is op 1.5" Renegotiation of Terms The City is currently in �s or other public forum 395 covered in process of developing telecommunications ordinance with input from telecommunications providers. Upon passage of r-� an ordinance that is consistent with applicable laws, the City and the Company agree to renegotiate any terms of this Agreement which are inconsistent with the new ordinance. The Company expressly reserves the right to oppose the adoption of any ordinances and the enforcement of any ordinance includin, but not limited to, the right to appeal to a court of proper jurisdiction- 1.6 Reservatiou 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 (to the extent airways are related to facilities attached to or between poles) 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, re- location of any of the Cooppany's conduit or other facilities is required, such relocation shall be accomplished at the sole expense of the Company. Nothing in this Franchise shall be deemed a waiver of the City s right to require the Company to comply with all applicable zoning and other applicable regulatory ordinances or to pay any reasonable permit fees or to seek appropriate authorizations from the Company to perform any work in connection with the Franchise. Should the City close, eliminate, or discontinue use of any r public street during the term of this Franchise, or any renewal term, this Franchise shall cease w w w w w w w w w w OLTEL COMMUNICATIONS, IN(* TELECOMMUNICATIONS NETWORK FRANCHISE AGREEMENT w w w w w EXHIBIT -A 017,501) THIS Agreement is entered into this 4th day of June, 1997, between the City of Little Rock, Arkansas, a municipal corporation duly organized pursuant to the laws of the State of Arkansas, and ALLTEL Communications, Inc., a corporation duly organized pursuant to the laws of the State of Delaware, 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, ALLTEL Communications, Inc., a corporation organized pursuant to the laws of the State of Delaware (hereafter "the Company ") and licensed to do business in the State of Arkansas, has asked for a franchise to use the public rights -of -way including, but not limited to, streets, alleys, sidewalks, and air rights (to the extent air rights are related to facilities attached to or between poles) that belong to the City, to install conduit, fiber optic cable and a telecommunications network that will facilitate the connection of businesses, residences and public agencies located within the City to a telecommunications network; and WHEREAS, the parties agree that the Company is a utility with which a written franchise agreement may be entered into pursuant to A.C.A. 14- 200 -101; NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS SET FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND AGREE AS FOLLOWS: -3- .s31DI; • DEFINITIONS • 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. J. Gross Revenues - All revenues, (excluding sales tax, extension, terminal equipment, toll, access, yellow pages and miscellaneous equipment revenues) collected by the Company: for local intrastate wireline telecommunications services provided by the Company and billed to its end user customers, in both respects, within the corporate limits of the City and from operation of the Company's Network installed pursuant to this Agreement. Notwithstanding the foregoing definition, the term Gross Revenues shall not include the following: (1) those revenues that the Company has received or will receive from another telecommunications service provider and upon which the other telecommunications provider has paid or will pay a franchise fee, and (2) revenues that the Company has received from its corporate parent, subsidiary, or an affiliate. 4. Public Rights -of -Way or City Rights -of -Way - Streets, avenues, alleys, bridges, viaducts, rights -of -way, easements, grounds and other similar public places owned or controlled by, leased to or granted to the City. -4- 397 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 on June 4, 1997, and shall continue in force in accordance with A.C.A. § 14- 200 -103 or unless the Franchise is terminated by abandonment or by agreement of the Parties. Upon expiration or termination of the Franchise, all rights and obligations of the Company granted under this Agreement shall cease. 1.3 Nonexclusive Franchise. The Franchise is nonexclusive. Nothing in this Agreement shall limit or otherwise restrict the right of the City to enter into agreements with other companies for use of the City's rights -of -ways and airways. 1.4 Scope of Franchise. The scope of the Franchise awarded pursuant to this Agreement is limited to the incorporated area of the City. The Parties agree that their entrance into this Agreement is without prejudice to any positions they may have taken previously, or may take in the future, in any legislative, regulatory, judicial, municipal, or other public forum addressing any matters, including matters related to the same types of arrangements covered in this Agreement. This Agreement does not give the Company any right to use or occupy any public right- of -way controlled by a city utility unless agreed to by such utility. 1.5 Renegotiation of Terms The City is currently in the process of developing a telecommunications ordinance with input from telecommunications providers. Upon passage of an ordinance that is consistent with applicable laws, the City and the Company agree to -5- W. • renegotiate any terms offs Agreement which are inconsistent the new ordinance. The Company expressly reserves the right to oppose the adoption of any ordinances and the enforcement of any ordinance including, but not limited to, the right to appeal to a court of 399 proper jurisdiction. 1.6 Reservation of Authority. The City reserves the right to perform any necessary public works or make any necessary public improvements to the City's rights -of -ways or airways (to the extent airways are related to facilities attached to or between poles) 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, re- location of any of the Company's conduit or other facilities is required, such relocation shall be accomplished at the sole expense of the Company. Nothing in this Franchise shall be deemed a waiver of the City's right to require the Company to comply with all applicable zoning and other applicable regulatory ordinances or to pay any reasonable permit fees or to seek appropriate authorizations from the 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. 1.7 Notice of Intention to Construct. The City has a vested interest in assuring that any disruption of the flow of traffic, or the digging or creation of a trench in any of the streets, be kept to a minimum. In order to facilitate this interest, the City and the Company agree to the following: (a) Upon application by the Company for a construction permit to open the street, the City shall provide notice to other utilities in accordance with applicable ordinances of the City. During such time period provided by Ordinance, the City shall withhold approval of any such M permits so that any otopublic utility that desires to do sooill be allowed to ask to simultaneously lay conduit, or other appropriate equipment, in any trench opened by the 400 Company. The Director of Public Works may extend time for emergency situations if another public utility so desires. The Company will permit that public utility to simultaneously lay conduit, or other appropriate equipment, in any trench opened by the Company provided: (i) the other utility shares in the cost of opening and repairing the trench; (ii) the utility's desire to so participate does not unnecessarily delay the Company's construction schedule. (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 of the following entities operating within the City: gas provider, cable television company, electric service provider, interexchange, long distance or local exchange telecommunications services provider, any entity (including the State of Arkansas) operating a fiber optic telecommunications network in the City, Little Rock Water Commission, Little Rock Sanitary Sewer Committee, and any other entity laying pipes, cables, conduits, or wires on, over, or beneath City rights -of -way and that have a franchise from the City. SECTION 2. CONSTRUCTION REQUIREMENTS 2.1 Quality. All work involved in the construction, operation, maintenance, repair, upgrade, and removal of the Network that is permitted by this Franchise shall be performed in a safe, thorough, reliable manner using materials of good and durable quality in accordance with 7- generally accepted constson standards. If, at any time, it is desined by the City that any 401 part of the Network is harmful to the health or safety of any person, then the Company shall at its own cost and expense, promptly correct all such conditions. For purposes of this subsection, promptly shall mean twenty-four (24) hours, or a longer period of time if and only if additional time is granted in writing by the Director of Public Works acting with the advice and consent of the City Manager. 2.2 Aesthetic Construction Requirements. Before the Company constructs, extends or replaces its Network, except in the case of minor maintenance as may be defined by the City, it shall file with the City's Director of Public Works a written work description, including scale drawings, showing the Network's location and, if applicable, estimated depth of the facilities. 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. Sa If the City require0e Company to remove, alter, change, a%t or conform its Network to enable any other person or entity, to use, or to use with greater convenience, the s rights -of -way, or in connection with dedication or street buildout requirements related to third party action, the Company shall be obligated to make such changes to its Network only if said person or entity commits and post appropriate bond, if required by the Company, to reimburse the Company for any loss and expense which will be caused by or which will arise out of such changes to the Company's Network. The City shall not be liable for any reimbursement, loss, or expense which is caused by or which arises out of such changes to the Company's Network. 2.3 No Liabilitv to the Comnanv. Neither the City nor its officers, employees, agent (except independent contractors), attorneys, or consultants shall have any liability, except in the case of intentional acts or omissions of the City, to the Company for any liability as a result of any disruption or damages to the Network that occur as a result of or in connection with any protection, breaking through, street cave -in, movement, removal, alteration, or relocation of any part of the Network by or on behalf of the Company or the City in connection with any 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 the Company's Network and shall, except in emergency situations, provide reasonable notice to the Company so as to allow the Company to protect its Network. 2.4 New Construction or Extension of Facilities. Before the Company constructs new Network facilities or extends existing Network facilities, or before it uses Network facilities.that were in existence in the City prior to the effective date of this Agreement, the Company shall, as reasonably possible, provide to the City's Public Works Director its Network location data in In network, construction, including other preparation for the extension of conduit or any facilities within public rights -of -way (not including lateral connections under sidewalks that do not interfere with the normal flow of traffic on the City streets or public rights -of -way for which 403 permits have been issued). SECTION 3 COMPENSATION TO THE CITY 3.1 Franchise Fees -- Amount. (a) The Company shall pay to the City franchise fees beginning with the calendar year immediately following its generation of Gross Revenues, an amount equal to five percent (5 %) of Gross Revenues as defined in this Agreement. The rate shall be five percent (5 %) unless or until agreed otherwise between the parties or otherwise changed by law, and shall be ratified annually by the City as appropriate. In addition to the franchise fee, Company shall provide City, upon City's request, the exclusive use of two (2) fiber pairs per each location where Company has installed fiber optic facilities that include at least 96 fibers. Company shall have no obligation to provide City any optronics, electronics, power or other services or facilities in connection with such two fiber pairs. City's exclusive use of the two (2) fiber pairs provided by Company shall be limited solely to governmental functions and shall not be used directly or indirectly or made available directly or indirectly for use by the public or for compensation. (b) The payment of a franchise fee by the Company in no way limits the right of the City to charge fees for any permits the Company is required to obtain for any construction project; nor does the payment of a franchise fee preclude the right of the City to assess a reasonable business license fee. -to- conformance with the Cio standards. The City shall be notifi0of any extension of the network, construction, including other preparation for the extension of conduit or any facilities within public rights -of -way (not including lateral connections under sidewalks that do not interfere with the normal flow of traffic on the City streets or public rights -of -way for which 403 permits have been issued). SECTION 3 COMPENSATION TO THE CITY 3.1 Franchise Fees -- Amount. (a) The Company shall pay to the City franchise fees beginning with the calendar year immediately following its generation of Gross Revenues, an amount equal to five percent (5 %) of Gross Revenues as defined in this Agreement. The rate shall be five percent (5 %) unless or until agreed otherwise between the parties or otherwise changed by law, and shall be ratified annually by the City as appropriate. In addition to the franchise fee, Company shall provide City, upon City's request, the exclusive use of two (2) fiber pairs per each location where Company has installed fiber optic facilities that include at least 96 fibers. Company shall have no obligation to provide City any optronics, electronics, power or other services or facilities in connection with such two fiber pairs. City's exclusive use of the two (2) fiber pairs provided by Company shall be limited solely to governmental functions and shall not be used directly or indirectly or made available directly or indirectly for use by the public or for compensation. (b) The payment of a franchise fee by the Company in no way limits the right of the City to charge fees for any permits the Company is required to obtain for any construction project; nor does the payment of a franchise fee preclude the right of the City to assess a reasonable business license fee. -to- Section shall be made quarterly and, in any event, no later than fifteen (15) days after: March 31; 404 June 30; September 30; and December 31 of each year. 3.3 Franchise Fee Payments Subject to Audit; Remedy for Underpavment. All franchise fee payments shall be made pursuant to a form provided by and acceptable to the Finance Director and Treasurer of the City. No acceptance of any franchise fee payment by the City shall be construed as an accord and satisfaction that the amount paid is in fact the correct' amount, nor shall acceptance be deemed a release of any claim the City may have for further or additional sums payable pursuant to this Franchise. All amounts paid shall be subject to audit and recomputation by the City in accordance with the provisions of this Agreement. 3.4 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 The City's Rieht of Oversieht. 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, without waiving its right to appeal or to seek a stay or injunctive relief, expressly 0 3.2 Franchise FO- Payment. All such payments of fraise fees required by this Section shall be made quarterly and, in any event, no later than fifteen (15) days after: March 31; 404 June 30; September 30; and December 31 of each year. 3.3 Franchise Fee Payments Subject to Audit; Remedy for Underpavment. All franchise fee payments shall be made pursuant to a form provided by and acceptable to the Finance Director and Treasurer of the City. No acceptance of any franchise fee payment by the City shall be construed as an accord and satisfaction that the amount paid is in fact the correct' amount, nor shall acceptance be deemed a release of any claim the City may have for further or additional sums payable pursuant to this Franchise. All amounts paid shall be subject to audit and recomputation by the City in accordance with the provisions of this Agreement. 3.4 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 The City's Rieht of Oversieht. 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, without waiving its right to appeal or to seek a stay or injunctive relief, expressly M agrees to comply with aleles, regulations, orders, or other dire6es issued pursuant to this Section. No rule, regulation, order, or other directive issued pursuant to this Section shall constitute an amendment to this Franchise. 405 4.2 Proprietary Information as Property of the Company. The City and the Company recognize that in order to comply with all the terms and conditions of this Franchise it may, on occasion, be necessary for the Company to provide the City access to certain proprietary information. To the extent that such information is individually noted and marked "Proprietary" by the Company, the City acknowledges that such information will always be considered to be in the sole custody and control of the Company, that the information will only be reviewed by the City and, that despite the immediate location of such material, the Company shall never be deemed to have provided it to the City for its possession and control nor to include such information as a part of any public record. In the absence of a court order issued by a court of competent jurisdiction, or a subpoena duly issued according to law, should any person request access to such information solely upon the basis of state or federal freedom of information laws, the City shall immediately return the information to the Company with notice of the request, shall refuse access to the records to the requesting party, and shall complete any necessary review at the Company's office. 4.3 Financial Reports. The Company shall, subject to appropriate proprietary treatment and protection, make available to the City not later than three (3) months after the end of the Company's annual fiscal periods with respect to the period just ended: a copy of the Company's appropriate financial statements as necessary, which statements shall, unless otherwise agreed to by the City, be certified by the Company's Chief Financial Officer in accordance with generally accepted accounting principles; and a statement of the gross revenues subject to Franchise fees under this Agreement and a calculation of fees due the City certified to -12- be true and correct by thOompany's Chief Financial officer. ThWies shall mutually agree on the appropriate reporting format to be utilized by the Company. 406 SECTION 5 RESTRICTIONS AGAINST ASSIGNMENTS AND OTHER TRANSFERS 5.1 Transfer of Franchise or Interest Therein. The Company may not, except to a wholly owned subsidiary or entity under common ownership to Company, assign, sell, or transfer in any manner, in whole or in part, its right, title or interest in any part of the Network. The Company shall give notice to the City of any such assignment, sale or transfer. The Company shall have the right to mortgage or pledge a portion or all of the Network in order to secure financing of the Company's 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 -13- provided or otherwise ex4kg or given may be exercised from tin*o time and as often and in such order as may be deemed expedient by the City. The exercise of one or more rights or remedies shall not be deemed a waiver of or acquiescence to any default. The exercise of any such right or remedy by the City shall not release the Company from its obligations or any liability under this Franchise, except as expressly provided for in this Franchise or as necessary to avoid duplicative recovery from or payment by the Company or its Guarantor. 6.2 Events of Default. The Company agrees that an Event of Default shall include, but shall not be limited to, any of the following acts or failure to act by the Company or any Affiliated Person: (a) Failure to obtain any applicable permits from the Department of Public Works of the City before making material expansions to the Network. (b) Failure to supply insurance, bonds, or letters of credit as may be required by the City to assure the proper completion of any restoration or repair performed pursuant to the Franchise. (c) Failure to make any of the payments set forth in this Franchise. (d) Failure to pay any permit fees, or substantial failure to comply with any applicable rules, regulations, orders or directives of the City as set forth in this agreement. (e) Failure to materially comply with agreed construction and repair schedules. (f) Filing of bankruptcy. 6.3 City Action Upon Occurrence of an Event of Default. Upon the occurrence of an Event of Default under Section 6.2(a), (d), or (e) Company may be subjected to appropriate fines or penalties as provided by the City and with respect to Events of Default specified in Section 6.2(b), (c) or (f), the City may, in accordance with the procedures provided for in this Franchise: SEE or M (a) Require the Aany to take such actions as necessaryoure the Event of Default; 408 (b) Seek money damages from the Company as compensation for such Event of Default: or revoke the Franchise by termination of this Agreement. 6.4 Procedure to Follow Upon Breach. The City shall exercise the rights set forth in this Section in accordance with the following procedures: a) The City Manager shall notify the Company, in writing, of an alleged Event of Default. This written notice shall set forth with reasonable specificity the facts the City believes are the basis for declaring that an Event of Default has occurred. The. Company shall, within thirty (30) business days of the date the notice is postmarked, or such additional time as the City Manager may specify in the notice, cure the alleged Event of Default, or, in writing, present for review by the City Manager a reasonable time frame and method to cure the Event of Default. The Company, in lieu of the cure of the Event of Default as set forth herein, may, present written facts and arguments as to why the Company disagrees that an Event of Default has occurred. (b) If the Company presents a written response that challenges whether an Event of Default has occurred, the City Manager shall within ten (10) days review the submitted materials and determine again whether an Event of Default has occurred. If the City Manager reaffirms that an Event of Default has occurred, the Company shall be notified in writing of this decision and shall, within thirty (30) days, cure the alleged Event of Default. (c) If the Company fails to cure the Event of Default so declared pursuant to this Section within the time permitted by the City Manager, the City Manager shall prepare a written report to the City Board of Directors and recommend action to be taken. If the City -15- Board of Directorsoer consideration of this report, agrees *t an Event of Default has 409 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. The City acknowledges that its right to direct the Company to remove the Network provided herein shall be subject and subordinate to the rights of the Company's mortgagee, creditor, pledgee, or other person providing financing to the 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. -16- 6.6 Consent notoaiver. The grant or waiver of any4k or more of the consents required by this Franchise shall not render unnecessary any subsequent consent, nor shall the 10 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. The 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 environmental damages, disruption of services or death, received or sustained by any person or any property occasioned by, arising out of, or in connection with the negligent acts or omissions of the Company regarding the erection, construction, location, replacement, reconstruction, maintenance, repair, or operation of the Company's Network, and the Company shall pay any judgments, interest, and costs which may be obtained against the City arising out of such injury or damage. If the franchise granted by this agreement is terminated or is not renewed, and the Company does not remove its facilities from the right -of -way, the Company shall continue to indemnify and hold harmless pursuant to this section as long as its facilities are located in the rights -of -way. The City at its option may defend any such action and the parties shall cooperate in any such defense. 17- M M M M • SECTION 8 MISCELLANEOUS 8.1 Controlling Law. This Franchise shall be determined according to the laws of the State of Arkansas and venue and jurisdiction to challenge, contest, review, or otherwise subject its terms and conditions to litigation, shall occur in Little Rock, Pulaski County, Arkansas, or in the United States District Court for the Eastern District of Arkansas. 8.2 Captions The captions given to various provisions of this Franchise are for purposes of convenience only and are to have no impact upon the interpretation of any such provisions. 8.3 Entire Agreement. This Franchise, with its exhibits, comprises the entire agreement between the City and the Company for purposes of this Franchise. 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 the 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 500 West Markham Little Rock, Arkansas 72201 -18- 411 i with a complementary copy the delivery of which is not required in order for notice to be accomplished to: City Attorney City of Little Rock City Hall: Room 310 500 West Markham Little Rock, Arkansas 72201 Notice to the Company will be to: 412 President Arkansas Telecommunications Operations ALLTEL One Allied Drive Little Rock, Arkansas 72202 with a complementary copy the delivery of which is not required in order for notice to be accomplished to: Legal Department ALLTEL One Allied Drive Little Rock, Arkansas 72202 or to such other address as the Company and the City may, in writing, designate from time to time provided that notice is accomplished by overnight delivery to only one (1) designated person for either the City or the Company. MIMMINK INSURANCE M 9.1 Insurance. *Company shall maintain the followingosurance coverages and the respective policies thereof shall cover all risks related to the use and occupancy of the right -of- �1; 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, products /completed operations, personal injury, contractual liability, explosion/collapse /underground property damage. Insurance shall be provided on an occurrence basis, be as comprehensive as the current Insurance Services Office (ISO) policy 2. Automobile Liability Insurance One Million dollars ($1,000,000) each accident - coverage shall be on "any auto ", including leased, hired, owned, non -owned and borrowed vehicles. I 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. -20- 413 3. Insurers shall authorized to do business in the Stoof Arkansas, or otherwise approved by the City, and such shall be acceptable to the City insofar as their financial strength 414 and solvency are concerned. 4. The City shall be notified within a minimum of thirty (30) days prior to the insurer's action in the event of cancellation, non - renewal or material change coverage regarding any policy providing insurance coverage required in this agreement. 5. Full limits of insurance required in Subsection (a) of this section shall be available for claims arising out of this agreement with the City. 6. Certificates of insurance shall be provided by the Company to the City prior to commencement of operations pursuant to this franchise. Any failure on part of the City to request such documentation shall not be construed as a waiver of insurance requirements specified herein. 7. The City shall be entitled, upon reasonable request, to review the insurance policies including endorsements thereto and, at its discretion, to require proof of payment for policy premiums. 8. The City reserves the right to revise insurance requirements specified herein and require the Company to comply therewith within sixty (60) days of the City's official notice of the revision. 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. _21_ 11. The Companohall agree to either require its controors 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. 415 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. CITY OF LITTLE ROCK, ARKANSAS ALLTEL COMMUNICATIONS, INC.. By: Date: ATTEST: By: Date: \IepalWn'tlM1 yemnuUnnoa W By: _ Date ATTEST: By: Date: State of Arkansas) ) ss. County of Pulaski) SUBSCRIBED and sworn to before me this _ day of My Commission Expires: -22- Notary Public 11. The Compaeliall agree to either require its cont.ors 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. 416 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. CITY OF LITTLE ROCK, ARKANSAS By: V Omit, yor Jim Dailee Date: % ��� I ATTEST: By < ?,Q 44Z-i 1'i,— City Clerk Robbie Hancock Date: 4"1&& / 0. 1997 u.ynA.ar�omw.irucc ea State of Arkansas) ) ss. County of Pulaski) ALLTEL COMMUNICATIONS, INC. By: Date: ATTEST: By: Date: SUBSCRIBED and swom to before me this _ day of My Commission Expires: .11). Notary Public