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ORD NO 11-2011 CITY OF VAN BUREN, ARKANSAS ORDINANCE NO. t` -2011 BE IT ENACTED BY THE CITY COUNCIL, FOR THE CITY OF VAN BUREN, ARKANSAS, AN ORDINANCE TO BE ENTITLED. AN ORDINANCE GRANTING A LICENSE AUTHORIZING LIMITED USE OF PORTIONS OF THE CITY OF VAN BUREN, ARKANSAS'S RIGHTS -OF -WAY AND EASEMENTS TO KENTUCKY DATA LINK; PROVIDING FOR PAYMENT THEREOF; DECLARING AN EMERGENCY; AND FOR OTHER PURPOSES. WHEREAS, Kentucky Data Link (KDL), Inc. of Evansville, Indiana, desires to construct, maintain and operate two (2) private, high density polyethylene (HDPE) conduits containing a single fiber -optic cable within the City of Van Buren, Arkansas for its private use; and WHEREAS, The construction of said HDPE conduits necessitates the conduits entering and/or crossing certain portions of City rights -of -way and easements; and WHEREAS, The City Council of the City of Van Buren, Arkansas has determined that the construction, maintenance and operation of the subject HDPE conduits by KDL, Inc. is not contrary to the public interest or inherently inconsistent with the use of public rights -of -way or easements by the city or the public; and WHEREAS, The City is entitled to just and reasonable compensation from KDL, in the form of license fees, for their use of those portions of the City rights -of -way and easements; and WHEREAS, The parties agree that these information services are a telecommunications service and, therefore, a utility for which a written franchise agreement may be entered pursuant to Ark. Code Ann. 14- 200 -201 or pursuant to the rights of the City to control the subject public rights -of -way. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF VAN BUREN, ARKANSAS THE GRANTING OF A LICENSE AUTHORIZING LIMITED USE OF THE CITY OF VAN BUREN, ARKANSAS'S RIGHTS -OF -WAY AND EASEMENTS TO KENTUCKY DATA LINK; PROVIDING FOR PAYMENT THEREOF; DECLARING AN EMERGENCY; AND FOR OTHER PURPOSES: SECTION 1. The Kentucky Data Link, Incorporated, which is conducting or carrying on business in the City of Van Buren. Arkansas shall pay a franchise fee of One Thousand Nine Hundred Twenty Dollars ($1,920) for each year or part thereof this Franchise is in effect. The said amount will be paid by the Kentucky Data Link. Incorporated at the time of execution of this franchise. The annual franchise fee shall be due by the tenth day of each subsequent annual period. SECTION 2. Said One Thousand Nine Hundred Twenty Dollars ($1,920) shall be paid in lieu of all other taxes, licenses, charges, fees or impositions except general or special ad valorem taxes which might be lawfully imposed by the City. SECTION 3. As an incident to the privilege hereby taxed the Kentucky Data Link, Incorporated shall have the right to occupy present or future streets, highways. alleys. or other public ways of the aforesaid municipality for the purpose of carrying on its said business, subject to Ordinance 21 -1973. SECTION 4. Should any portion of this ordinance be Unconstitutional or invalid and so declared by a court of competent jurisdiction, then the remainder of this ordinance shall not be affected by such partial invalidity. SECTION 5. That due to the need to raise more revenue, and to have the same in effect April 1, 2011, an emergency therefore is declared and the Ordinance being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval. SECTION 6. The Mayor and City Clerk are hereby authorized by the City Council for the City of Van Buren to execute all documents, contracts, and agreements necessary to effectuate this Ordinance. IN WITNESS WHEREOF. the City of Van Buren, Arkansas, by its City Council, did pass, approve, and adopt, by a vote of 5 for and 0 against, the foregoing Ordinance at its Regular Meeting held on the 21st day of March 2011. 1 Robert D. Fr an, Ma o_ ATTESTED:' APPR• VE R A 0 FORM: t A .IIII� ta a s Barbie Curtis, City Clerk/Treasurer Candice Settle., City Attorney NON EXCLUSIVE FIBER OPTICS NETWORK FRANCHISE AGREEMENT This Agreement is entered into this day of March, 2011, between the City of Van Buren, Arkansas "the City a municipal corporation duly organized pursuant to the laws of the State of Arkansas, and Kentucky Data Link, Inc. of Evansville, Indiana (the "Franchisee a corporation authorized to do business in the State of Arkansas. WITNESSETH WHEREAS, the City recognizes that fiber optic telecommunications services for the purpose of providing information services is essential to the creation and maintenance of an information network within the City that can connect to the information superhighway; and WHEREAS, Franchisee, has requested a franchise to use the hereinafter specified public rights -of -way, which may include streets, alleys, sidewalks and public utility easements available for telecommunications purposes that belong to or controlled by the City or which are held in trust for the public by the City, hereinafter referred to as the "public rights -of- way," to install conduit or other cased fiber optic facilities that will facilitate the connection of businesses, residences and public agencies located within the City to an information network; and WHEREAS, the parties agree that these information services are a telecommunications service and, therefore, a utility for which a written franchise agreement may be entered pursuant to Ark. Code Ann. 14- 200 -101 or pursuant to the rights of the City to control the subject public rights -of -way; and -1- WHEREAS, the City intends to exercise the full scope of its municipal powers, including both its police power and contracting authority, to promote the public interest and to protect the health, safety and welfare of the citizens of the City. NOW. THEREFORE, IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS SET FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND AGREE AS FOLLOWS: Section 1. (a) Subject to the provision of this Ordinance, a non exclusive fiber optic franchise is hereby granted to Franchisee for the placement and maintenance of buried fiber optic communication cable in the public rights -of -way at the locations specified in Exhibit "A" hereto. (b) It is agreed by the parties that this franchise shall have a limited term commencing on March 2011 and shall expire on March, 2031 unless the Agreement is renewed by written agreement of the parties at least 120 days prior to the end of the primary term, or unless the Franchise is earlier terminated by abandonment or due to breach by the Franchisee. (c) The failure of the Franchisee to meet any of the terms of this Agreement shall constitute cause for termination of this franchise by the City. Any termination will be declared in writing by the Mayor and shall be subject to due process review by the City Council. (d) This franchise is nonexclusive and nothing in this Agreement shall limit or otherwise impact the right of the City to enter into other franchise agreements with other parties. (e) All references to the Mayor shall be deemed to refer to the Mayor or the -2- employees of the City designated by the Mayor to perform the referenced. function. Section 2. (a) All work involved in the construction, operation, maintenance, repair, upgrade, and removal of the fiber optic communication cable shall be performed by the Franchisee in a manner and using material in accordance with City standards as determined by the Mayor. Franchisee shall bore streets whenever possible. Where street cuts are unavoidable, as determined by the Mayor they shall be approved by the Mayor and performed in accordance with the City's Street Cut Ordinance. (b) Any construction project, including initial installation pursuant to this franchise, will be completed by the Franchisee within thirty (30) days from the date of commencement (if any City permit is necessary, the date of the permit shall be the "date of commencement provided the Mayor may allow reasonable extensions due to unexpected weather, acts of God or other reasonable circumstances that in the sole discretion of the Mayor justify an extension of the project target completion date. Failure to complete the project by the completion date will result in the assessment of liquidated damages in an amount determined in writing by the Mayor at the time the City issues any permit or authorizations for the construction project (or the sum of $100.00 per day if other sum is not so established). Section 3. The City shall have no responsibility for the maintenance of the said buried fiber optic communication cable. If the same is damaged so as to be inoperable in any manner, it shall be removed or abandoned by Franchisee, at Franchisee's sale cost and expense and in a manner meeting with the approval of the Mayor. -3- Section 4. Franchisee shall hold the City harmless from and indemnify the City from all expenses, losses, costs, causes of action and judgments, including legal fees and expenses, arising from the placement, maintenance, operation, repair, and removal of said fiber optic communication cable. Section 5. Franchisee shall be member of and shall conform to the requirements of the Arkansas One Call system for all purposes including field locations. of utilities prior to placement of the fiber optic communication cable and any maintenance or repair work thereto. Section 6. Franchisee shall place a Sixty Four Thousand Dollar ($64,000) performance bond with the City to cover the cost of repairs or other incidental costs to the City associated with service interruption to the City's utility facilities resulting from the installation of the initial fiber optic communications cable by Franchisee. A similar bond shall be required for subsequent construction projects utilizing the subject public rights -of -way. Section 7. Franchisee shall procure and maintain in effect the following insurance policies in amounts determined appropriate by the Mayor at the time of issuance of permits or authorizations for construction activities: Commercial General Liability insurance, Automobile Liability Insurance, Environmental Impairment Liability including Pollution Liability Insurance, and Workers Compensation Insurance. Section 8. (a) The Franchise fee in the amount of One Thousand Nine Hundred Twenty Dollars (1,920) for each year or part thereof this Franchise is in effect. -4- (b) The Franchise fee for the initial annual period shall be paid to the City at the time of execution of this franchise. The annual franchise fee shall be due by the tenth day of each subsequent annual period. The payment of the franchise fees in no way limits the right of the City to charge fees for any permits required for construction projects or any applicable taxes. Section 9. The Franchisee shall, at its expense, protect, support, temporarily disconnect, relocate or remove from the subject public rights -of -way any property of the Franchisee when required at the sole discretion of the City by reason of traffic conditions, public safety, street vacation, freeway and street construction, a change or establishment of street grade, installation or construction of sewers, drains, water pipes, or any other type of structures or improvements by the City; but, the Franchisee shall have the right of abandonment of its property, subject to prior written approval of the Mayor. If federal or state funds are available at no expense to the City (including actual cost or the cost of a pro -rata obligation of the City where a project is funded partially by the State or federal funds and partially by the City funds) for the purpose of defraying the costs to any utility company of any of the foregoing, such funds shall also be made available to the Franchisee if the federal or state regulations permit. Section 10. Neither the City nor its officers, employees, agents, attorneys, consultants or independent contractors shall have any liability to the Franchisee for any liability as a result of any disruption or damage to the Franchisee's network that occurs as a result of, or in connection with, any breaking through, movement, removal, alteration, or relocation of any part of the network by or on behalf of the Franchisee or -5- the City in connection with construction, relocation, improvement to, or alteration of any City structure, street or utility facility; except, however, the City shall reasonably attempt to avoid any damage to the Franchisee's network and shall, except in any emergency situation, provide reasonable notice to the Franchisee so as to allow the Franchisee to protect its network. Section 11. Any notice of communication required in the administration of this Agreement shall be sent by any method that ensures overnight delivery and shall be addressed as follows: Mayor City of Van Buren 1003 Broadway Van Buren, AR 72956 Notice to the Franchisee will be sent to: Windstream KDL, Inc. 3701 Communications Way Evensville, IN 47715 Attn: Senior Vice President Fiber Transport Services Or to such other address as the Franchisee and the City may, in writing, designate from time to time, provided that notice is accomplished by overnight delivery to only one designated person for the City or Franchisee. WHEREUPON, the City and Windstream KDL, Inc., acting through their duly authorized officers and pursuant to appropriate authority granted by their respective City Council, do hereby execute this Franchise. -6- CITY OF VAN BUREN, ARKANSAS WINDSTREAM, KDL, INC. By: By: Date: Date: ATTEST: ATTEST: Date: Date: State of Arkansas ss County of Crawford SUBDCRIBED and sworn to before me this day of My Commission Expires: Notary Public -7-