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1960RESOLUTION NO ~ ~ ~ A RESOLUTION APPROVING A LICENSE AGREEMENT BETWEEN THE CITY OF WEST MEMPHIS AND KENTUCKY DATA LINK, INC., TO CONSTRUCT, INSTALL AND MAINTAIN AN ABOVE GROUND AND UNDERGROUND FIBER OPTIC CABLE NETWORK IN CERTAIN CITY RIGHT-OF-WAYS FOR THE PURPOSE OF CONNECTING THE SCHOOLS AND FACILITIES OF THE WEST MEMPHIS SCHOOL DISTRICT, AND FOR OTHER PURPOSES. WHEREAS, the West Memphis School District and Kentucky Data Link, Inc., (KDL) desire to construct, install, and maintain a fiber optic cable network to connect the schools and facilities of the West Memphis School District; and WHEREAS, the network will consist of both above ground fiber optic cable, subject to a pole attachment agreement, and underground fiber optic cable being installed within certain City of West Memphis right-of--ways pursuant to the terms and conditions of a License Agreement between the City of West Memphis and KDL; and WHEREAS, the City Council finds that the License Agreement is in the best interests of the City of West Memphis and its citizens and should be approved; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST MEMPHIS, ARKANSAS, THAT the License Agreement between the City of West Memphis and Kentucky Data Link, Inc., is hereby approved and the Mayor and City Clerk are hereby authorized to execute said License Agreement on behalf of the City of West Memphis. ADOPTED this 3 day of y ~' t=- , 2010. WILLIAM H. JOHN ON, MAYOR ATTEST: PHILLIP PA CLERK SPONSORED BY: LICENSE AGREEMENT Rp T4r-d THIS AGREEMENT executed on the ~~ of ~' 2010 by and between the City of West Memphis, an Arkansas municipality ("City"} and KENTUCKY DATA LINK, INC, ("KDL"). WITNESSETH: WHEREAS, KDL is a facilities based service provider constructing ftber optic networks and delivering communications services to customers; WHEREAS, KDL requests that the City grant a license to construct, install, and maintain a fiber optic cable system both above-ground and under-ground ("Network"), and deliver services using the Network in certain City rights of way ("ROW") as more clearly depicted on any written requests submitted hereunder; WHEREAS, KDL acknowledges, warrants and affirms to the City that KDL is a retailer of telecommunications services under Arkansas State law and that this Agreement does regulate the act or privilege of originating or receiving telecommunications in the City; WHEREAS, the City finds that the encroachment of the Network in the ROW will not be a detriment to said -ROW and as such will serve the public use and convenience by providing a network to connect the schools and facilities of the West Memphis School District; WHEREAS, the City is willing to grant a license and permits to KDL for the installation, construction, maintenance and use of the Network in the City ROW under certain conditions and restrictions as stated below; and WHEREAS, KDL agrees to abide by those conditions and restrictions in exchange for the City granting said license. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which acknowledged by tl~e City and the mutual covenants contained herein, the City and KDL agree as follows: 1. The City grants to KDL and KDL does hereby accept a license to construct, install, maintain and use a Network subject to all the terms and conditions of this Agreement. KDL specifically states that it is 1 not currently registered with the FCC, or any state regulatory body, as a CATV provider. Should KDL decide to enter the CATV market in West Memphis, Arkansas, it will provide prior written notice to the City and the parties shall renegotiate the terms of this Agreement, including any applicable franchise agreement. 2. All plans and specifications for construction and installation of the Network shall be submitted and approved by the Director of Public Works or his designee and the City Engineer prior to the commencement of any construction and or installation whatsoever. All construction, installation, maintenance, and use shall be done pursuant to all the laws and regulations of the City, State of Arkansas, and any other governmental unit or agency applicable thereto, as amended from time to time. KDL acknowledges that a pole attachment agreement will govern any above ground construction or installation on City owned poles. 3. KDL understands and agrees that all work done hereunder in the ROW shall be performed in a good and workman-like manner subject to the approval of the City and that the costs and expenses of the location of facilities in the ROW will be paid by KDL. The terms of Exhibit A are hereby incorporated by reference. 4. The Network shall at all times remain the property of KDL and, except to the extent caused by the City's negligence or willful misconduct, the City shall not be responsible for the repair or continued maintenance of the Network. The parties hereto agree that nothing contained in this Agreement shall be deemed a waiver of any statutory immunity or other defenses. 5. This Agreement shall not give rise to any right of ownership in the City ROW to KDL. The City ROW shall continue to be a public property held by the City in trust for the general public. 6. The KDL Network shall be constructed, installed, maintained, used, and removed so as not to interfere with either the public use of the City ROW or the rights of abutting and adjoining land owners. Except as prohibited by state or federal law, upon the City's reasonable request, KDL must, at KDL's expense, with due regard to seasonal working conditions, remove and relocate its Network in the ROW when necessary if the City requests such removal and relocation for the public health safety and welfare, a public works project, or when necessary to prevent interference with the safety and convenience of ordinary travel over the ROW. In the event the City reimburses any carrier for the costs associated with said relocation, KDL shall also be entitled to reimbursement for the costs of its relocation. 1f the City 2 makes such a relocation request on behalf of or for the benefit of another utility, said utility shall be responsible for reimbursing KDL for any costs and expenses related to said request. 7 The City criay reject, revoke, suspend, or modify this Agreement and require KDL to remove the Network in the affected portions of the ROW at KDL's own expense after providing KDL with a 60 day notice and a reasonable opportunity to cure under the following circumstances: (a) KDL is not in full compliance with the material requirements of this Agreement or state or federal law; (b) KDL has failed to maintain required bonds and or insurance as required by the Agreement or has failed to secure required licenses registrations and authorizations required by the City; and (c) KDL engaged in proposed activity which was contrary to the public health, safety, welfare, or specific purpose of this Agreement. 8. KDL agrees to indemnify and hold the City its officers, officials, employees and agents harmless against any and all third party claims, causes of action, liabilities or expenses, including judgments, costs and damages, and including any costs incurred by the City: (a) directly arising out of any damage to tangible property or personal injuries caused by KDL, KDL's agents or the Network; and/or (b) any material breach of this Agreement by KDL. 9. KDL understands and agrees that the City, public utilities and/or-cable television companies, and their successors and assigns, may also have, or may obtain, certain rights in, over, under, upon, or across the City ROW and that the said license shall be subject to those granted rights. I (). Any notice, request, demand or other communication made in connection with this Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery, if delivered to the persons identified below in person, by courier service or by facsimile copy (with original copy mailed the same day in accordance with the provisions of this Paragraph), or five (5) business days after mailing if mailed by certified mail, postage prepaid, return receipt requested, addressed as follows: If to tl~e City: City of West Memphis, Arkansas 205 South Redding West Memphis, Arkansas 72303 3 With a copy to: City of West Memphis, Arkansas David Peeples, City Attorney 205 South Redding West Memphis, Arkansas 72303 If to Owner: Kentucky Data Link, Inc. 3701 Communications Way Evansville, IN 47715 ATTN: President With a copy to: Kentucky Data Link, Inc. 8829 Bond Street Overland Park, KS 6b214 ATTN: Legal Department 12. The initial term of this Agreement shall be Ten (l0) years commencing on the date that this Agreement is executed and terminating at midnight on the last day of the month in which the tenth annual anniversary of the Commencement Date shall have occurred. (a) KDL shall have the right to extend this Agreement for two (2) additional ten (10) year terms (each a "Renewal Term"). Each Renewal Term shall be on the same terms and conditions set forth herein unless the parties agree otherwise. (b) This Agreement shall automatically renew for each Renewal Term unless KDL notifies the City of its intention not to renew this Agreement at least one hundred eighty (180) days prior to the expiration of the term or the Renewal Term. In such case the City may require that KDL remove any and all equipment or property remaining in or about any City ROW or Property aid to restore the area consistent with City specifications. 13. Tliis Agreement shall be binding upo~1 and inure to the benefit of the respective successors and assigns of the parties hereto. KDL shall provide notice of any successors in interests to the City at least sixty (60} days prior to any change in such interest. A copy of this Agreement shall be recorded, at the expense of the KDL. 14. If any term of this Agreement is fou~~d to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. The parties intend that 4 the provisions of this Agreement been forced to the fullest extent permitted by applicable law. Accordingly, the parties shall agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. 1.5. KDL shall carry and keep and maintain in force and effect throughout the term of this Agreement, a policy or policies of insurance, the limits of such policy or policies to be in the amount of not less than $1,000,000.00 per occurrence in respect of injury to persons and in the amount of not less than $2,000,000.00 per occurrence in respect of property damage and destruction in form and substance satisfactory to City, at KDL's sole cost and expense, insuring both the City and KDL against all claims, demands or actions arising out of or in connection with: (a) KDL's maintenance and use of the ROW; and (b) KDL's liability assumed under this Agreement. All such policies shall be procured from a company or companies approved to do business in Arkansas, and certificates of all such insurance required hereunder shall be given by KDL to City prior to the commencement date of this Agreement along with evidence that the premiums have been paid for such policies. Not less than fifteen (l5) days prior to the expiration date of any such policies, the renewals thereof (bearing notations evidencing the payment of renewal premiums) shall be delivered to City. Such policies shall further provide that not less than thirty (30) days written notice shall be given to City before such policy may be canceled or changed to reduce the insurance coverage provided thereby. l-(. KDL has examined and knows the condition of the ROW and his received the same in good order and repair, AS-IS, WHERE-IS and acknowledges that no representations as to the condition and repair thereof' have been made by City, prior to or at the execution of this Agreement that are not herein expressed. 1 i. KDL will not permit any mechanic's lien or liens to be placed upon the ROW during the term hereof, and in case of the filing of such lien, KDL will promptly pa}~ same or with the prior written consent of the City, KDL may post a bond or indemnity in an amount sufficient to protect KDL and the ROW and indemnify, defend and hold City harmless from any third party liability for any amount claimed in said lien. If'default in payment thereof shall continue for thirty (30) days after written notice thereof from City to KDI., City shall have the right and privilege at City's option of paying the same or any portion thereof without inquiry as to the validity thereof, and any amounts so paid, including expenses and interest, shall be so much additional indebtedness hereunder due from KDL to City and shall be repaid to City immediately on rendition of bill therefor. 5 1N WI"INESS WHEREOF, we have hereunto set our hands and seals the day and year first above written. ATTEST: City of West Memphis, ARKANSAS City Clerk ~ EXHIBIT A 1. For any excavation within 2 feet of a curb or pavement, KDL will use flowable fill to backfill the excavated area. 2. All vac-locate test holes will be back filled with flowable fill unless instructed otherwise by the city. 3. KDL will make every effort to physically locate any nearby utilities prior to commencing construction or excavation work in the city right-of--way. 4. KDL acknowledges that the depth its fiber must be constructed at will be determined by the city in its reasonable discretion. 5. KDL will be responsible for repairing city or other utility lines if it is determined they were damaged by KDL while it was worki~ig to place KDL fiber. NOTWITHSTANDING the foregoing, KDL shall not be obligated to repair any 3'~d party facilities if said facilities are not properly located by and registered with Arkansas' One Call. 6. KDL fiber will be placed in inner duct and a locate wire will be used. 7. KDL will advise the City of its NOC telephone numbers in case of any future emergencies or issues. 8. The City may have an inspector on hand and/or have the work inspected upon completion of work. 9. KDL agrees to relocate its fiber, at its expense, if a relocation reasonably becomes necessary due to any road widening or other municipal improvement projects. l 0. KDL agrees that for any drainage ditch with the potential of being dredged, KDL must be 48" below the bottom of the drainage ditch. KDL will work with the City Utility Department prior to placing its facilities to ensure compliance with this provision. 7