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I ORDINANCE NO. 18,508
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3 AN ORDINANCE AMENDING THE CONSOLIDATION AGREEMENT
4 PROVIDING FOR THE CONSOLIDATION OF THE LITTLE ROCK AND
5 NORTH LITTLE ROCK WATER SYSTEMS; AUTHORIZING THE CITIES OF
6 LITTLE ROCK AND NORTH LITTLE ROCK TO CREATE A PUBLIC BODY
7 CORPORATE AND POLITIC UNDER THE CONSOLIDATED
8 WATERWORKS AUTHORIZATION ACT FOR THE PURPOSE OF OWNING
9 AND OPERATING A CONSOLIDATED WATER SYSTEM; GRANTING A
10 FRANCHISE TO THE CONSOLIDATED WATER SYSTEM FOR USE OF THE
11 CITY'S RIGHTS -OF -WAY AND SETTING A FRANCHISE FEE THEREFOR;
12 AUTHORIZING THE CONSOLIDATION OF THE LITTLE ROCK AND
13 NORTH LITTLE ROCK WATER SYSTEMS PURSUANT TO THE
14 CONSOLIDATION AGREEMENT; RESTRUCTURING THE BOARD OF
15 COMMISSIONERS OF THE LITTLE ROCK MUNICIPAL WATER WORKS;
16 DECLARING AN EMERGENCY; AND FOR OTHER PURPOSES.
17 WHEREAS, the City passed Little Rock, Ark., Ordinance No. 18,410 (January 8, 2001),
18 which authorized an interlocal agreement with the City of North Little Rock, Arkansas, to
19 consolidate the respective municipal water utilities ( "Consolidation Agreement, "), and
20 WHEREAS, the 83rd Arkansas General Assembly enacted, and Governor Mike Huckabee
21 signed into law, Act 982 of 2001 which expressly permits the type of Consolidation Agreement
22 and merger of water utilities contemplated by the City, and which having passed with an
23 emergency clause becomes effective on June 30, 2001, and
24 WHEREAS, work has continued to accomplish the consolidation of these utilities into a
25 single consolidated service provider known as Central Arkansas Water, and
26 WHEREAS, it is important to set out the initial terms of a franchise between the City of
27 Little Rock, Arkansas, and Central Arkansas Water, and to approve other documents that will
28 assist in finalizing this historic merger,
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1 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE
2 CITY OF LITTLE ROCK, ARKANSAS:
3 Section 1. Amendment of Consolidation Agreement. The First Amendment to
4 Consolidation Agreement (the "First Amendment "), which First Amendment amends the
5 Consolidation Agreement, dated as of March 5, 2001, by and among the City of Little Rock,
6 Arkansas, the City of North Little Rock, Arkansas, the Board of Commissioners of the Little
7 Rock Municipal Water Works and the Board of Commissioners of the North Little Rock Water
8 Department (the "Consolidation Agreement') to change the name of the Consolidated Entity
9 described therein to "Central Arkansas Water" or such other name as is chosen by the Interim
10 Board created under the Consolidation Agreement, is hereby approved in substantially the
11 form attached as Exhibit A to this Ordinance. The Mayor is hereby authorized and directed to
12 execute, acknowledge and deliver the First Amendment in substantially the form of Exhibit A,
13 with such changes or corrections as do not materially alter the substance thereof, and the City
14 Clerk is hereby authorized and directed to attest the same and to affix the seal of the City
15 thereto. Such changes or corrections to the First Amendment may be approved by the officials
16 of the City executing such document, their execution and delivery to constitute conclusive
17 evidence of such approval.
18 Section 2. Authorization to Create a Public Body Corporate and Politic. The City of Little
19 Rock, Arkansas hereby approves and authorizes the creation of "Central Arkansas Water" as a
20 public body corporate and politic under the Consolidated Waterworks Authorization Act, Act
21 982 of the 83rd Arkansas General Assembly, for the purpose of owning and operating the
22 consolidated water system contemplated by the Consolidation Agreement. The Articles of
23 Incorporation for such public body corporate and politic are hereby approved in substantially
24 the form attached as Exhibit B to this Ordinance. The Mayor is hereby authorized and directed
25 to execute, acknowledge, and deliver for filing with the Arkansas Secretary of State's office the
26 Articles of Incorporation in substantially the form attached as Exhibit B, with such changes or
27 corrections (including, if necessary, changes in the name of the public body corporate and
28 politic) as do not materially alter the substance thereof, and the City Clerk is hereby authorized
29 and directed to attest the same and to affix the seal of the City thereto. Such changes or
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1 corrections to the Articles of Incorporation may be approved by the officials of the City
2 executing such document, their execution and delivery to constitute conclusive evidence of such
3 approval.
4 Section 3. Approval of Franchise Agreement. The Franchise Agreement by and between
5 the City of Little Rock and Central Arkansas Water (the "Franchise Agreement "), setting forth
6 certain terms and conditions with respect to the use by Central Arkansas Water of the streets,
7 alleys, rights -of -way, easements and other real properties of the City of Little Rock, is hereby
8 approved in substantially the form attached as Exhibit C to this Ordinance. The Mayor is
9 hereby authorized and directed to execute, acknowledge and deliver the Franchise Agreement
10 in substantially the form of Exhibit C, with such changes or corrections as do not materially
11 alter the substance thereof, and the City Clerk is hereby authorized and directed to attest the
12 same and to affix the seal of the City thereto. Such changes or corrections to the Franchise
13 Agreement may be approved by the officials of the City executing such document, their
14 execution and delivery to constitute conclusive evidence of such approval. It is further
15 understood that notwithstanding any provision of this Franchise Agreement, Central Arkansas
16 Water is bound by all other terms and conditions contained in any City ordinances, as may be
17 amended, which establish utility relocation policies, policies for repair of streets opened by the
18 utility to install or repair new facilities, and all other City ordinances which may be applicable
19 to use of the public rights -of -way and public places.
20 Section 4. Setting of Franchise Fee. Pursuant to the authority contained in the
21 Consolidated Waterworks Authorization Act and Section 5.02 of the Consolidation Agreement,
22 the City hereby determines that an annual franchise fee, equal to six and nine- tenths percent
23 (6.9 %) of Central Arkansas Water's operating revenues that are attributable to gross income
24 from water sales to customers located within the City during the applicable fiscal year (the
25 "Franchise Fee "), shall be imposed upon Central Arkansas Water as compensation for the
26 franchise granted by the Franchise Agreement. The Franchise Fee shall be payable to the City in
27 monthly installments, each such installment being due not less than thirty (30) days following
28 the end of the month to which it applies. Installments of the Franchise Fee may be remitted on
29 an estimated basis, subject to periodic reconciliation, on such terms as may be acceptable to the
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1 City's Finance Director and Treasurer. The Franchise Fee shall continue in effect during the
2 term of the Franchise Agreement, unless revised or repealed by subsequent ordinance.
3 Section 5. Authorization of Officials and Officers to Consolidate Water Systems. The City
4 hereby authorizes and directs the Mayor, City Manager, and City Clerk to execute and deliver
5 such deeds, easements, bills of sale, assignments, licenses, franchise agreements, and other
6 agreements, documents and instruments, and to take such actions, as shall in the opinion of the
7 official or officer so acting be necessary or desirable in effecting the consolidation of the Little
8 Rock and North Little Rock water systems as contemplated by the Consolidation Agreement
9 and otherwise carrying out the City's obligations under the Consolidation Agreement, The
10 authorization contained herein shall survive the effective time of the consolidation of the Little
11 Rock and North Little Rock water systems, and shall at all times thereafter constitute full
12 authority for the Mayor, City Manager, and City Clerk to execute and deliver such additional
13 deeds, easements, bills of sale, assignments, licenses, franchise agreements, and other
14 agreements, documents and instruments, and to take such further actions, following the
15 effective time of the consolidation of the Little Rock and North Little Rock water systems, as
16 shall in the opinion of the official or officer so acting be necessary or desirable to further or
17 complete the consolidation of the Little Rock and North Little Rock water systems as
18 contemplated by the Consolidation Agreement.
19 Section 6. Restructuring of Board of Commissioners of the Little Rock Municipal Water Works.
20 Effective at midnight on June 30, 2001 (or such other time as the consolidation of the Little Rock
21 and North Little Rock water systems pursuant to the Consolidation Agreement shall become
22 effective), the membership of the Board of Commissioners of the Little Rock Municipal Water
23 Works shall be reduced to three (3) members from five (5) members, and two (2) of the existing
24 members of such Board of Commissioners (as decided by agreement among the existing
25 members, or if they are unable to agree, by lot) shall thereupon resign. Thereafter, the Board of
26 Commissioners of the Little Rock Municipal Water Works shall continue in existence for the
27 purposes of administering, investing and distributing any trust funds that remain under its
28 control, and for taking such other actions as shall be necessary or desirable in winding up the
29 affairs of the Little Rock Municipal Water Works. The Board of Commissioners of the Little
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I Rock Municipal Water Works shall, unless earlier dissolved by action of this Board of Directors,
2 be dissolved upon its certification to the Mayor and City Manager that (i) all funds under the
3 Board of Commissioners' control have been expended or otherwise provided for in accordance
4 with the terms of any applicable trust instrument, and (ii) all other actions necessary or
5 desirable in winding up the affairs of the Little Rock Municipal Water Works have been taken
6 and completed.
7 Section 7. Severability. The provisions of this Ordinance are hereby declared to be
8 separable and, if any provision shall for any reason be held illegal or invalid, such holding shall
9 not affect the validity of the remainder of the Ordinance.
10 Section 8. Repealer. All ordinances and parts of ordinances in conflict herewith are
I1 hereby repealed to the extent of such conflict.
12 Section 9. Emergency Clause. It is hereby ascertained and declared that the consolidation
13 of the water systems of the Cities of Little Rock and North Little Rock must be accomplished as
14 soon as possible in order to make the water system adequate for the needs of the City and its
15 inhabitants, without which the life, health, safety and welfare thereof are jeopardized, and that
16 the taking of the actions authorized by this Ordinance are necessary for the accomplishment
17 thereof. It is, therefore, declared that an emergency exists and this Ordinance being necessary
18 for the immediate preservation of the public peace, health and safety shall take effect and be in
19 force from and after its passage.
20 PASSED: June 12, 2001
21 ATTEST: APPROVED:
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24 Nan y Woo , City Clerk Ji alley, Mayor
25 APPROVED AS TO LEGAL FORM:
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28 Thomas M. Carpenter, C Attorney
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I Exhibit A
2
3 FIRST AMENDMENT TO
4 CONSOLIDATION AGREEMENT
5 This FIRST AMENDMENT TO CONSOLIDATION AGREEMENT ( "First
6 Amendment ") is entered into as of the _ day of , 2001, by and between the CITY OF
7 LITTLE ROCK, ARKANSAS ( "Little Rock "), and the CITY OF NORTH LITTLE ROCK,
8 ARKANSAS ( "North Little Rock "), for purposes of amending the Consolidation Agreement,
9 dated March 5, 2001 (the "Consolidation Agreement "), by and among Little Rock, North Little
10 Rock, the Board of Commissioners of the Little Rock Municipal Water Works (the "LR
I1 Commission "), and the Board of Commissioners of the North Little Rock Water Department (the
12 "NLR Commission').
13 Recitals
14 The Consolidation Agreement provides, in Section 8.01 thereof, that it may be amended,
15 subject to certain conditions as set forth therein, by mutual agreement of Little Rock and North
16 Little Rock.
17 The parties to the Consolidation Agreement desire to change the name of the
18 "Consolidated Entity" described therein to "Central Arkansas Water" or, if such name shall not be
19 available for use by the Consolidated Entity, such other name as shall be selected by the Interim
20 Board or the Consolidated Commission created under the Consolidation Agreement.
21 Little Rock and North Little Rock have, by their Board of Directors and City Council,
22 respectively, adopted substantively identical ordinances providing for the amendment of the
23 Consolidation Agreement as set forth in this First Amendment.
24 NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
25 contained, Little Rock and North Little Rock agree as follows:
26 Section 1. Amendment of Section 2.03. The final sentence of Section 2.03 of the
27 Consolidation Agreement is hereby deleted and the following inserted in lieu thereof:
28 "The Consolidated Entity shall be known as Central Arkansas Water, or such other
29 name as shall from time to time be selected by the Interim Board (prior to creation
30 of the Consolidated Entity) or the Consolidated Commission (following creation of
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1 the Consolidated Entity). The Interim Board or the Consolidated Commission, as
2 appropriate, shall have full authority, without necessity of further action by Little
3 Rock, North Little Rock or any other party to the Consolidation Agreement, to take
4 all actions necessary (including, without limitation, the filing of articles of
5 incorporation or amended articles of incorporation with the Arkansas Secretary of
6 State) or desirable to effect any change in the name of the Consolidated Entity."
7 Section 2. Conforming Amendments. References in the Consolidation Agreement to
8 'Regional Water System of Central Arkansas" shall hereafter be deemed references to "Central
9 Arkansas Water" or such other name of the Consolidated Entity as shall at the time be in effect.
10 IN WITNESS WHEREOF, Little Rock and North Little Rock have executed this First
11 Amendment to Consolidation Agreement as of the day and year first above written.
12 CITY OF LITTLE ROCK, ARKANSAS
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15 Jim D i y, Mayor
16 CITY OF NORTH LITTLE ROCK, ARKANSAS
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I Exhibit B
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3 ARTICLES OF INCORPORATION
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6 CENTRAL ARKANSAS WATER
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8 Pursuant to Act 982 of the 83rd General Assembly
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10 The City of Little Rock, Arkansas and the City of North Little Rock, Arkansas hereby
11 request that a public body corporate and politic be created under the Consolidated Waterworks
12 Authorization Act, Act 982 of the 83rd General Assembly of the State of Arkansas (the "Act "),
13 and state the following in applying for issuance of a certificate of incorporation under the Act:
14 FIRST: The name of the public body corporate and politic shall be "Central Arkansas
15 Water ".
16 SECOND: The participating public agencies creating the public body corporate and
17 politic are the City of Little Rock, Arkansas ( "Little Rock ") and the City of North Little Rock,
18 Arkansas ( "North Little Rock').
19 THIRD: The number of commissioners of the public body corporate and politic shall be
20 seven (7), of which four (4) commissioners shall be residents of Little Rock and three (3)
21 commissioners shall be residents of North Little Rock.
22 FOURTH: The commissioners of the public body corporate and politic shall initially
23 consist of four (4) commissioners chosen by the Board of Commissioners of the Little Rock
24 Municipal Water Works, and three (3) commissioners chosen by the Board of Commissioners of
25 the North Little Rock Water Department, all such initial commissioners being subject to
26 confirmation by the Little Rock Board of Directors and the North Little Rock City Council.
27 Thereafter, vacancies on the public body corporate and politic's board of commissioners shall be
28 filled by a vote of the remaining members of such board of commissioners, subject to confirmation
29 by the Little Rock Board of Directors and the North Little Rock City Council.
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1 FIFTH: Each commissioner shall be entitled to one (1) vote in all matters coming before
2 the board of commissioners of the public body corporate and politic.
3 SIXTH: Amendment of these articles of incorporation shall be effected in accordance
4 with the provisions of the Act and, additionally, in accordance with such procedures (if any) as
5 shall from time to time be contained in the interlocal agreement in effect between Little Rock
6 and North Little Rock pertaining to the public body corporate and politic; provided, however,
7 that no amendment to Paragraphs Third, Fourth or Fifth of these articles of incorporation shall
8 be effected without approval of Little Rock and North Little Rock.
9 SEVENTH: These articles of incorporation shall become effective at midnight on
10 June 30, 2001.
11 IN WITNESS WHEREOF, the undersigned Mayors of Little Rock and North Little Rock,
12 being duly authorized officials of Little Rock and North Little Rock, respectively, and acting for
13 the purpose of forming a public body corporate and politic pursuant to the Consolidated
14 Waterworks Authorization Act, do make this application as of the 30th day of June, 2001.
Is CITY OF LITTLE ROCK, ARKANSAS
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Jim D ' ey, Mayor
CITY OF NORTH LITTLE ROCK, ARKANSAS
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I Exhibit C
2
3 FRANCHISE AGREEMENT
4
5 This FRANCHISE AGREEMENT is entered into effective as of midnight on the 30 "' of
6 June, 2001, between the CITY OF LITTLE ROCK, ARKANSAS, a duly incorporated city of the
7 first class under the laws of the State of Arkansas (the "City "), and CENTRAL ARKANSAS
8 WATER, an Arkansas public body politic and corporate created under the Consolidated
9 Waterworks Authorization Act, Act 982 of the 83rd General Assembly of the State of Arkansas
10 ( "CAW" and, together with the City, the "Parties ").
11 WITNESSETH
12 WHEREAS, the City, the City of North Little Rock, Arkansas ( "North Little Rock "), the
13 Board of Commissioners of the Little Rock Municipal Water Works and the Board of
14 Commissioners of the North Little Rock Water Department have entered into a Consolidation
15 Agreement, dated March 5, 2001 (the "Consolidation Agreement'), for the purpose of
16 consolidating the Little Rock and North Little Rock water systems; and
17 WHEREAS, the City and North Little Rock have created CAW under the Consolidation
18 Agreement and the Consolidated Waterworks Authorization Act for the purpose of owning and
19 operating the consolidated water system; and
20 WHEREAS, CAW has requested from the City a franchise to use public rights -of -way
21 for the purposes of providing a water distribution system to serve customers both within the
22 City and beyond the City's incorporated area;
23 NOW, THEREFORE, in consideration of the premises and other good and valuable
24 consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows:
25 SECTION 1
26 GRANT OF AUTHORITY
27 1.1 Grant of Franchise. CAW is hereby granted a franchise (the "Franchise ") to
28 occupy and use the streets, avenues, alleys, bridges, viaducts, rights -of -way, easements,
29 grounds and other similar public places within and owned or controlled by, leased to or
EXHIBrr C: PAGE 1 OF 9 [Page 10 of 181
I granted to the City (collectively, the "City Rights -of- Way ") in order to construct, operate,
2 extend, upgrade, replace, repair, maintain and remove a system of mains, pipelines, hydrants,
3 meters, valves, standpipes, storage tanks, storage basins, pumping stations, intakes, wells,
4 reservoirs, lakes, watercourses, pumps, purification plants, filtration plants, and related
5 improvements, equipment and facilities as may be necessary or advisable for the proper and
6 efficient distribution of water to customers or locations, whether within or beyond the City's
7 incorporated area (the "Distribution System "), pursuant to the terms and conditions of this
8 Agreement.
9 1.2 Term of Agreement. This Agreement shall be effective as of midnight on June
10 30, 2001, and shall thereafter continue in force indefinitely, unless the Franchise is terminated by
11 agreement of the Parties, the Consolidation Agreement between the City and the City of North
12 Little Rock is terminated, or the Franchise is abandoned by CAW.
13 1.3 Nonexclusive Franchise. The Franchise is nonexclusive. Nothing in this
14 Agreement shall limit or otherwise restrict the right of the City to enter into agreements with
15 other persons or entities for use of the City Rights -of -Way.
16 1.4 Scope of Franchise. The Franchise is limited to the incorporated area of the City
17 and any other properties owned by the City upon which CAW Distribution System facilities are
18 located as the same exists from time to time during the term of this Agreement; provided,
19 however, that (i) nothing herein shall limit the Distribution System to serving only the
20 incorporated area of the City, it being the intention of the Parties that the Distribution System
21 may have as one of its purposes the distribution of water to customers located beyond the
22 incorporated area of the City, and (ii) with respect to any areas annexed by or otherwise added
23 to the City after the effective date of this Agreement ( "Annexed Areas "), all rights accruing to or
24 held by CAW with respect to easements, rights -of -way and other real properties or real
25 property interests in such Annexed Areas prior to annexation shall survive annexation, and the
26 rights and obligations of the Parties under this Agreement shall be subject to such prior rights.
27 1.5 City's Reservation of Authority. The City reserves the right to perform any
28 necessary public works or make any necessary public improvements to the City Rights -of -Way
29 during the term of this Agreement. If, as a result of any action by or authorized by the City that
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I the City deems by ordinance to be a benefit to the public good, relocation of any of CAW's
2 Distribution System is required, and such relocation shall be accomplished without cost to the
3 City. Nothing in this Agreement shall be deemed a waiver of the City's right to require CAW to
4 comply with all applicable zoning and other applicable regulatory ordinances or to pay any
5 reasonable permit fees or to seek appropriate authorizations from the City to perform any work
6 in connection with the Distribution System. The City reserves the right to close, eliminate or
7 discontinue use of any part of a City Right -of -Way during the term of this Agreement. The City
8 shall provide CAW notice of all requests to close, eliminate, or discontinue use of any part of a
9 City Right -of -Way. If CAW is using such Right -of -Way at the time of its proposed closure,
10 elimination or discontinuance, CAW shall have the right to request and receive from the City
11 the reservation of an easement, license or other right to continue any pre- existing use of such
12 Right -of -Way in the ordinance that authorizes such Right -of -Way abandonment.
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SECTION 2
CONSTRUCTION REQUIREMENTS
15 2.1 Applicable Standards. Any construction, extension, replacement, upgrade,
16 maintenance, repair or removal of the Distribution System undertaken by CAW in any City
17 Rights -of -Way shall be performed in accordance with applicable laws, including, without
18 limitation, applicable ordinances and regulations of the City as the same are or have been
19 interpreted and applied by the City's Director of Public Works and other public authorities. It is
20 the intention of the Parties that any prior understandings and agreements between CAW's
21 predecessor, the Little Rock Municipal Water Works, and the City with respect to construction
22 practices and procedures shall continue to remain in effect, unless modified or revoked by the
23 City
24 2.2 Changes to Accommodate Other Users. If the City requires CAW to remove,
25 alter, change, adapt or conform its Distribution System to enable any public utility or other
26 person or entity to use, or to use with greater convenience, the City Rights -of -Way, or in
27 connection with dedication or street build -out requirements related to third -party action, none
28 of which is deemed by the City to benefit the public good, then CAW shall be obligated to make
29 such changes to its Distribution System only if such public utility or person or entity commits
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1 and posts appropriate bond, if required by CAW, to reimburse CAW for any loss and expense
2 which will be caused by or which will arise out of such changes to CAW's Distribution System.
3 The City shall not be liable for any reimbursement, loss, or expense which is caused by or which
4 arises out of such changes to CAW's Distribution System.
5 SECTION 3
6 COMPENSATION TO THE CITY
7 3.1 Franchise Fees- Amount. CAW shall pay to the City such franchise fees, based
8 upon a percentage of the operating revenues that are attributable to gross income from water
9 sales within the City as set out in an appropriate City ordinance which establishes the
10 percentage as set by the City from time to time, subject to any limitations on franchise fees set
II forth in the Consolidation Agreement or otherwise by applicable law. The payment of a
12 franchise fee by CAW in no way limits the right of the City to charge reasonable fees for any
13 permits CAW is required to obtain for any construction project. The said franchise fees shall be
14 made in addition to applicable local sales taxes and payments in lieu of taxes, to the extent
15 permitted by the Consolidated Waterworks Authorization Act, Act 982 of the 83rd General
16 Assembly of the State of Arkansas, as that act may from time to time be amended.
17 3.2 Franchise Fees - Payment. All payments of franchise fees shall be made on such
18 schedule (but not more frequently than monthly) as the City sets and, if no schedule of
19 payments is otherwise set, shall be made not later than ninety (90) days after the end of each of
20 CAW's fiscal years.
21 3.3 Statement of Franchise Fee Computation. Each payment of franchise fees
22 required by this Section shall be accompanied by a statement (in form and content reasonably
23 acceptable to the Finance Director and Treasurer of the City) setting forth in reasonable detail
24 the calculation of franchise fees due the City, which statement shall be certified to be true and
25 correct by CAW's Director of Finance. In cases where franchise fees are payable based upon
26 revenues or other factors that are not known at the time payment is required, such franchise
27 fees shall be based upon reasonable estimates, and the basis for such estimates shall be
28 disclosed in the statement provided by CAW's Director of Finance. In the event that franchise
29 fees are required to be paid in installments during CAW's fiscal year or on an estimated basis,
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1 such payments are subject to adjustment, up or down, based upon CAW's year -end audited
2 financial statements, with any underpayment of franchise fees for such fiscal year being paid
3 with the installment due first following the end of the fiscal year and any overpayment of
4 franchise fees for such fiscal year being applied to reduce the franchise fee installments due in
5 the subsequent fiscal year.
6 3.4 Franchise Fee Payments Subject to Audit. No acceptance of any franchise fee
7 payment by the City shall be construed as an accord and satisfaction that the amount paid is in
8 fact the correct amount, nor shall acceptance be deemed a release of any claim the City may
9 have for further or additional sums payable pursuant to this Agreement. All amounts paid as
10 franchise fees shall be subject to audit and recomputation by the City in accordance with the
11 provisions of this Agreement and the Consolidation Agreement.
12 3.5 Authority to Pass Franchise Fee Payments on to End Users. To the extent
13 provided by law, CAW is permitted to pass through to and collect from its customers any
14 franchise fees assessed by the City.
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SECTION 4
SPECIFIC RIGHTS AND REMEDIES
17 4.1 Nonexclusive Remedies. Any rights and remedies of the Parties under this
18 Agreement are in addition to and cumulative with any and all other rights or remedies, express
19 or implied, now or hereafter available to them at law or in equity in order to enforce the
20 provisions of this Agreement. Such rights and remedies shall not be exclusive, but each and
21 every right and remedy specifically provided or otherwise existing or given may be exercised
22 from time to time and as often and in such order as may be deemed expedient by the
23 appropriate Party. The exercise of one or more rights or remedies shall not be deemed a waiver
24 of or acquiescence to any breach or default. The exercise of any such right or remedy by a Party
25 shall not release the other Party from its obligations or any liability under this Agreement,
26 except as expressly provided for in this Agreement or as necessary to avoid duplicative
27 recovery or payment.
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1 4.2 Procedure to Follow Upon Breach. A Party's exercise of the remedies set forth
2 in or permitted by this Section shall be subject to its compliance first with the following
3 procedures:
4 (a) If a Party (the "Alleging Party ") believes the other (the "Breaching Party") to be
5 in breach of an obligation under this Agreement, it shall notify the Breaching Party, in writing,
6 of an alleged breach. This written notice shall set forth with reasonable specificity the facts the
7 Alleging Party believes are the basis for declaring that a breach has occurred. The Breaching
8 Party shall, within thirty (30) business days of the date the notice is postmarked, cure the
9 alleged breach, or, in writing, present for review by the Alleging Party a reasonable time frame
10 and method to cure the breach. The Breaching Party, in lieu of curing the alleged breach as set
I1 forth herein, may present written facts and arguments as to why the Breaching Party disagrees
12 that a breach has occurred.
13 (b) If the Breaching Party presents a written response that challenges whether a
14 breach has occurred, the Alleging Party shall within ten (10) days review the submitted
15 materials and determine again whether a breach has occurred. If the Alleging Party reaffirms
16 that a breach has occurred, the Breaching Party shall be notified in writing of this decision and
17 shall, within thirty (30) days, cure the alleged breach.
18 (c) If the Breaching Party fails to cure the breach so declared pursuant to this Section
19 within the time permitted by paragraphs (a) and (b) above, the Alleging Party may pursue any
20 appropriate remedy set forth in or permitted by Section 4.
21 4.3 Remedies. Upon the occurrence of a breach of an obligation under this
22 Agreement and, following the Alleging Party's compliance with the notice and cure procedures
23 set forth in this Agreement, the continuance of such breach, the Alleging Party may pursue any
24 remedy available to it, whether set forth in this Agreement or otherwise available at law or in
25 equity. In no event will the rate of the franchise fee assessed pursuant to this Agreement be
26 considered a matter that CAW can allege is a breach of this Agreement.
27 4.4 Mortgagee's Right to Perform. Any mortgagee, pledgee or other person
28 providing financing to CAW shall have the right to cure CAW's breach of an obligation under
29 this Agreement. The City acknowledges that its right to the remedies provided in this
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1 Agreement shall be subject and subordinate to the rights of CAW's mortgagees, creditors,
2 pledgees, or other persons providing financing to CAW, as described in the written documents
3 evidencing the financing or the security therefor, provided that such mortgagees, creditors,
4 pledgees, or other persons providing financing to CAW comply with the terms and conditions
5 of this Agreement,
6 4.5 Consent Not a Waiver. The grant or waiver of any one or more of the consents
7 required by this Agreement shall not render unnecessary any subsequent consent, nor shall the
8 grant of any such consent constitute a waiver of any other rights of the City and /or CAW.
9 SECTION 5
10 LIABILITY LIMITATION; INDEMNIFICATION
11 5.1 Limited Liability to CAW. Neither the City nor its officers or employees shall
12 have any liability, except in the case of intentional acts or omissions of the City, to CAW for any
13 liability as a result of any disruption or damages to the Distribution System that occur as a
14 result of or in connection with any protection, breaking through, street cave -in, movement,
15 removal, alteration, or relocation of any part of the Distribution System by or on behalf of CAW
16 or the City in connection with any emergency public work of any nature whatsoever,
17 improvement, alteration of municipal structure, any change in the grade or line of any street, or
18 the elimination, discontinuation, and closing of any street; provided, however, the City shall
19 reasonably attempt to avoid any damage to CAW's Distribution System and shall, except in
20 emergency situations, provide reasonable notice to CAW so as to allow CAW to protect its
21 Distribution System.
22 5.2 Indemnification. CAW shall indemnify and hold harmless the City and its
23 officers and employees from all suits, actions, or claims of any character, style, and description
24 brought for or on account of any injuries or damages, including environmental damages,
25 disruption of services or death, received or sustained by any person or any property occasioned
26 by, arising out of, or in connection with the intentional or negligent acts or omissions of CAW
27 regarding the erection, construction, location, replacement, reconstruction, maintenance, repair,
28 or operation of CAW's Distribution System, and CAW shall pay any judgments, interest, and
29 costs which may be obtained against the City arising out of such injury or damage; provided,
ExtuBrr C' PAGE 7OF9 [Page 16 of 181
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1 however, that nothing contained herein shall be construed to waive the City's or CAW's
2 governmental immunity under applicable Arkansas law. The City at its option may defend any
3 such action and the Parties shall cooperate in any such defense.
4 SECTION 6
5 MISCELLANEOUS
6 6.1 Captions. The captions given to various provisions of this Agreement are for
7 purposes of convenience only and are to have no impact upon the interpretation of any such
8 provisions.
9 6.2 Amendment. This Agreement may be amended only in a writing signed by both
10 Parties.
11
12
13
14
15
16
17
18
19
20
6.3 Multiple Originals. This Agreement may be executed in any number of copies
and any fully executed copy of this Agreement shall be deemed an original for purposes of
authentication or presentation in evidence before any court or administrative tribunal.
6.4 Notice. Any notice or communication to the City required in the administration
of this Agreement 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
21 with a copy to:
22 City Attorney
23 City of Little Rock
24 City Hall: Room 310
25 500 West Markham
26 Little Rock, Arkansas 72201
27 Notice to CAW will be to:
28 Chief Executive Officer
29 [ADDRESS]
30 Little Rock, Arkansas
31 //
32
EXRIBrr L': PAGE 8 OF 9
[Page 17 of 181
0 •
1 with a copy to:
2 Kathlyn Graves, Esq.
3 Wright, Lindsey & Jennings LLP
4 200 West Capitol Avenue, Suite 2200
5 Little Rock, Arkansas 72201
6 or to such other address as CAW and the City may, in writing, designate from time to time.
7 6.5 No Third -Party Beneficiaries. No person, firm or corporation other than the
8 Parties shall have any rights under this Agreement or the provisions contained herein.
9 6.6 Controlling Law. This Agreement shall be governed by and interpreted
10 according to the laws of the State of Arkansas and venue and jurisdiction to challenge, contest,
11 review, or otherwise subject its terms and conditions to litigation, shall occur in Little Rock,
12 Pulaski County, Arkansas, or in the United States District Court for the Eastern District of
13 Arkansas.
14 IN WITNESS WHEREOF, the City and CAW have duly executed this Franchise Agreement
15 effective as of the date and year first above written.
16 / /CITY OF LITTLE ROCK, ARKANSAS CENTRAL ARKANSAS WATER
17
18 By:
19 Vim Dailey, Mayor
20
21 ATTEST:
22
23 By:
24 11 ancy W od, City Clerk
25
26
27
28
29
30
31
.................. Name
ATTEST:
go
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