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130302009065516 ReceYved: 9i'2812009 :32:43 ANI Recorded: Q9128120039 09:49 :39 AM FHed Recorded 'sr: Of Records of PAT 'BRIU PULASKI q O NTY C.�RCiiMCOU s'TY CLERK 1 RESOLUTION N $5 °' 2 3 A RESOLUTION TO GRANT A FRANCHISE TO THE BOARD OF TRUSTEES OF 4 THE UNIVERSITY OF ARKANSAS TO USE THE PUBLIC STREETS AND 5 RIGHTS OF WAY FOR THE ARKANSAS RESEARCH AND EDUCATIONAL OP- 6 TICAL NETWORK (ARE -ON) TO PROVIDE NONEXCLUSIVE FIBER OPTICS 7 FOR UNIVERSITY CAMPUSES; AND FOR OTHER PURPOSES. 8 9 WHEREAS, the Board of Trustees of the University of Arkansas has requested the use of City 10 rights -of -way and public properties for the placement of a fiber optic system to be utilized by the Arkan- 11 sas Research and Educational Optical Network ( "ARE -ON ") to bring the latest and fastest research and 12 educational information to University campuses located within the City of Little Rock, Arkansas; 13 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY 14 OF LITTLE ROCK, ARKANSAS: 15 Section 1. The Mayor, City Manager, and City Clerk, are authorized to execute the franchise agree - 16 ment attached as Exhibit A to this Resolution. 17 Section 2. Pursuant to this agreement, the City grants a nonexclusive franchise to the use of certain 18 public rights -of -way, and public properties, as noted in the map attached in Exhibit A. 19 Section 3. Severabilaty. In the event any title, section, paragraph, item, sentence, clause, phrase, 20 or word of this resolution is declared or adjudged to be invalid or unconstitutional, such declaration or 21 adjudication shall not affect the remaining portions of the resolution which shall remain in full force and 22 effect as if the portion so declared or adjudged invalid or unconstitutional was not originally a part of the 23 resolution. 24 Section 4. Repealer. All laws and parts of laws inconsistent with the provisions of this resolution 25 are hereby repealed to the extent of such inconsistency. 26 ADOPTED: September 15, 2009 27 ATTEST: 28 29 A� '�. 30 ?usan L�ng1 Acting City Clerk 31 32 APPROVED AS TO LEGAL FORM: 33 34 _ 35 Thomas M. Carpenter, City Attorney [PAGE 1 OF 101 Resolution to grant franchise to ARE -ON r r APPROVED: Mark Stodola, Mayor daje�e\tnnni�����(J w a .o 1. I EXHIBIT A 2 Franchise Agreement between the City of Little Rock and the Board of Trustees of the University 3 of Arkansas on behalf of the Arkansas Research and Educational Optical Network 6 NON - EXCLUSIVE 7 FIBER OPTICS NETWORK FRANCHISE AGREEMENT 8 9 This Agreement is entered into this 15"' day of September, 2009, between the City of Little Rock, 10 Arkansas ( "the City "), a municipal corporation duly organized pursuant to the laws of the State of Arkan- 11 sas, and Board of Trustees of the University of Arkansas, acting for and on behalf of the University of 12 Arkansas, Fayetteville, specifically the Arkansas Research and Education Optical Network (ARE -ON), a 13 consortium of Arkansas's public four -year universities (the "Franchisee "). 14 WITNESSETH 15 WHEREAS, the City recognizes that Franchisee is creating a statewide high speed fiber optic 16 network designed to connect to regional and national fiber optic networks and enhance the research, edu- 17 cation, and public service capacity of the state's public four -year institutions of higher education, includ- Is ing the University of Arkansas at Little Rock (UALR), as well as the University of Arkansas for Medical 19 Sciences (DAMS), a portion of which fiber is intended to run through the City; and 20 WHEREAS, Franchisee has requested a franchise to use the hereinafter specified public rights -of- 21 way, which may include streets, alleys, sidewalks and public utility easements available for telecommuni- 22 cations purposes that belong to or are controlled by the City or which are held in trust for the public by 23 the City, hereinafter referred to as the "public rights -of- way," to install conduit, fiber and other fiber optic 24 facilities that will facilitate the connection of UALR and DAMS campus components located within the 25 City to the statewide network; and 26 WHEREAS, the parties recognize the City's right to control access to the subject public rights -of- 27 way. 28 NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS 29 SET FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND AGREE AS FOLLOWS: [PAGE 2 OF 10] Resolution to grant franchise to ARE -ON i Section 1. (a) Subject to the provision of this Ordinance, a non - exclusive fiber ptic franchise is 2 hereby granted to Franchisee, and its successors and assigns, for the placement, operation and mainte- 3 nance of fiber optic communication cable in the public rights -of -way and public grounds and places at the 4 locations specified in Exhibit "A" hereto. 5 (b) It is agreed by the parties that this franchise shall commence on September 15, 2009, and 6 shall continue until Franchise is terminated by mutual agreement of the parties, abandonment or due to 7 breach by the Franchisee. 8 (c) The material and substantial failure of the Franchisee to meet the terms of this Agreement, 9 following notice and reasonable opportunity to cure, shall constitute cause for termination of this fran- 10 chise by the City. Any termination will be declared in writing by the City Manager and shall be subject to 11 appeal to the City Board. In the event of termination, Franchisee shall have a reasonable period of time, 12 not less than one hundred and eighty (180) days, to terminate its operation of the fiber optic cable and 13 facilities. 14 (d) This franchise is nonexclusive and nothing in this Agreement shall limit or otherwise impact 15 the right of the City to enter into other franchise agreements with other parties. 16 (e) Except with respect to termination of the Agreement, all references to the City Manager shall 17 be deemed to refer to the City Manager or the employees of the City designated by the City Manager to 18 perform the referenced function. 19 Section 2. (a) All work involved in the construction, operation, maintenance, repair, upgrade, 20 and removal of the fiber optic communication cable shall be performed by the Franchisee in a manner and 21 using material in accordance with generally applicable City standards and methods, including with respect 22 to public notice. Franchisee will design routes, to the extent feasible, using underground (rather than ae- 23 rial) location of fiber and facilities. Franchisee shall bore streets whenever possible. Where street cuts 24 are unavoidable, they shall be performed in accordance with generally applicable City standards. 25 (b) All underground installations of fiber optic cable shall be no less than (3) three feet below grade 26 and no less than (2) two feet below the elevation of drainage pipes or drainage ditches. [PAGE 3 OF 101 Resolution to grant franchise to ARE -ON I (c) Any damage to streets, sidewalks, driveways, curbs, gutters or other infrastructure taking place 2 due to placement of fiber optic cable shall be repaired by Franchisee or Franchisee's contractor at their 3 expense. 4 Section 3. The City shall have no responsibility for the maintenance of the said fiber optic com- 5 munication cable. If the same is damaged so as to be inoperable in any manner, it shall be removed or 6 abandoned by Franchisee, at Franchisee's sole cost and expense and in a manner meeting with the reason- 7 able approval of the City Manager. Permission is granted to Franchisee to trim trees upon and overhang - 8 ing streets, alleys, sidewalks and public places of said City so as to prevent the branches of such trees 9 from coming in contact with any wires and cables of Franchisee, all the said trimming to be done under 10 supervision and direction of any City officials to whom said duties have been or may be delegated. 11 Section 4. To the extent permitted by law, Franchisee (or Franchisee's contractor) shall be re- 12 sponsible for all expenses, losses, costs, causes of action and judgments, including legal fees and ex- 13 penses, arising from the placement, maintenance, operation, repair and removal of said fiber optic com- 14 munication cable pursuant to this agreement, provided, however, Franchisee reserves its right to assert in 15 good faith all claims and defenses available to it in any appropriate forum and provided, further, that 16 nothing in this Agreement shall be deemed or construed as a waiver of sovereign immunity. 17 Section 5. Franchisee shall be member of and shall conform to the requirements of the Arkansas 18 One Call system, or its successor, for purposes of field locations of utilities prior to placement of the fi- 19 ber optic communication cable and any maintenance or repair work thereto. Franchisee shall issue to the 20 City Manager, or his designated agent, a written notice of anticipated schedule of initial installation of the 21 Franchisee's system. Except in an emergency situation, Franchisee shall provide reasonable advance no- 22 tice to the City, typically through Arkansas One Call, of maintenance activity regarding the Franchisee's 23 system. 24 Section 6. Franchisee is self - insured through its member institutions. Franchisee's contractor 25 shall procure and maintain in effect at all times of the contractor's work within the City of Little Rock a [PAGE 4 OF 10] Resolution to grant franchise to ARE -ON I policy or policies of commercial general liability insurance with minimum coverage of $ 1 million per 2 occurrence. 3 Section 7. In consideration of the public purposes of Franchisee, the benefits to UALR, DAMS, 4 and the City of the project, and Franchisee's recognition of its obligations to the City under this Agree- s ment, no fees shall be charged for this Franchise; likewise, no licenses, charges or impositions shall be 6 imposed by the City. 7 Section 8. The Franchisee shall, at its expense, protect, support, temporarily disconnect, relocate 8 or remove from the subject public rights -of -way any property of the Franchisee when required at the rea- 9 sonable discretion of the City by reason of traffic conditions, public safety, street vacation, freeway and 10 street construction, a change or establishment of street grade, installation or construction of sewers, 11 drains, water pipes, or any other type of structures or improvements by the City; but, the Franchisee shall 12 have the right of abandonment of its property, subject to prior written approval of the City Manager. If 13 federal or state funds are available at no expense to the City for the purpose of defraying the costs to any 14 utility company of any of the foregoing, such funds shall also be made available to the Franchisee if the 15 federal or state regulations permit. Should City seek to relocate any aerial fiber or facilities to an under - 16 ground location, Franchisee shall cooperate with such relocation in good faith, provided that City shall 17 pay for any such relocation to the extent funds are reasonably available for such project. 18 Section 9. Neither the City nor its officers, employees, agents, attorneys, consultants or inde- 19 pendent contractors shall have any liability to the Franchisee for any liability as a result of any disruption 20 or damage to the Franchisee's network that occurs as a result of, or in connection with, any breaking 21 through, movement, removal, alteration, or relocation of any part of the network by or on behalf of the 22 Franchisee or the City in connection with construction, relocation, improvement to, or alteration of any 23 City structure, street or utility facility; except, however, the City shall reasonably attempt to avoid any 24 damage to the Franchisee's network and shall, except in any emergency situation, provide reasonable no- 25 tice, typically through Arkansas One -Call, to the Franchisee so as to allow the Franchisee to protect its 26 network. [PAGE 5 OF 101 Resolution to grant franchise to ARE -ON I N 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Section 10. 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: City Manager City of Little Rock Little Rock City Hall 500 West Markham Little Rock, AR 72201 Notice to the Franchisee will be sent to: Arkansas Research and Education Optical Network Attn: David Merrifield, Chief Technology Officer 155 Razorback Rd, ADSB 220 Fayetteville, AR 72701 or to such other address as the Franchisee and the City may, in writing, designate from time to time, pro- vided that notice is accomplished by overnight delivery to only one designated person for the City or Franchisee. Section 11. The parties agree that City does not seek to exercise regulatory authority over the services provided by Franchisee or the fees charged for such services, and nothing in this Agreement au- thorizes City to exercise such authority. Furthermore, the parties agree that nothing in this Agreement shall be deemed or construed to indicate that ARE -ON constitutes a public utility pursuant to A.C.A. 14- 200 -101 et seq. or 23 -1 -101 et seq. Section 12. With regard to any dark fiber paths newly constructed by Franchisee within the City limits pursuant to this Agreement, Franchisee shall install and provide to the City four (4) dark fiber pairs solely for City's noncommercial telecommunications purposes. Consistent with this provision, City may allocate use of the fiber to other public or private non - profit entities for public purposes, but shall not al- locate use of the fiber for commercial use. The cost of the fiber, conduit and initial installation shall be borne by Franchisee. In addition, City shall be permitted to attach lateral connections to the dark fiber pairs at such locations as reasonably permitted by Franchisee and as reasonably necessary in order to con- nect the fiber pairs to City's facilities. Any such lateral fiber and connections shall be at the sole cost and expense of City, although Franchisee may, in its sole discretion, determine whether to purchase and install Resolution to grant franchise to ARE -ON [PAGE 6 OF 101 1 or have its contractor purchase and install the laterals, with such costs fully reimbursed by City, or permit 2 City and/or City's contractor, at City's sole cost and expense, to undertake such purchasing and installa- 3 tion consistent with standards established by Franchisee and subject to Franchisee's oversight and ap- 4 proval. If City proposes a lateral and Franchisee determines that such a lateral would also be beneficial 5 for purposes of Franchisee, in its sole discretion, Franchisee will work, in good faith, to determine a mu- 6 tually acceptable arrangement for sharing of costs for the lateral. This section does not entitle City to any 7 rights granted to Franchisee through separate licenses, permits, agreements or easements that Franchisee 8 may have with any third party. If any of the four fiber pairs are damaged, or are required to be relocated, 9 then Franchisee shall undertake (or contract to undertake) the necessary repair or relocation, provided, 10 however, that any costs of repair or relocation of the fiber pairs, other than repair or relocation due to ac- 11 tions of Franchisee, shall be reimbursed to Franchisee by City. 12 Section 13. The parties agree to the following general terms and conditions: 13 A. This agreement shall be governed by the laws of the State of Arkansas, without regard to its 14 choice of law principles. 15 B. Except for the right of either party to apply to a court of competent jurisdiction for a temporary 16 restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent 17 irreparable harm, any and all claims, disputes or controversies arising under, out of, or in connection with 18 the Agreement which the parties shall be unable to resolve within sixty (60) days shall be mediated in 19 good faith. The party raising such dispute shall promptly advise the other party of such claim, dispute or 20 controversy in a writing which describes in reasonable detail the nature of such dispute. By not later than 21 fifteen (15) business days after recipient has received such notice of dispute, each party shall have se- 22 lected for itself a representative who shall have the authority to bind such party, and shall additionally 23 have advised the other party in writing of the name and title of such representative. By not later than 24 thirty (30) business days after such notice of dispute, the party against whom the dispute shall be raised 25 shall select a mediation firm and such representatives shall schedule a date with such firm for a mediation 26 hearing. The parties shall enter into good faith mediation and shall share the costs equally. If the repre- [PAGE 7 OF 101 Resolution to grant franchise to ARE -ON I sentatives of the parties have not been able to resolve the dispute within thirty (30) business days after 2 such mediation hearing, the parties shall have the right to pursue any other remedies legally available to 3 resolve such dispute. The State of Arkansas shall be the sole and exclusive venue for any litigation or 4 proceeding that may arise out of or in connection with this contract. Notwithstanding the foregoing, noth- 5 ing in this Article shall be construed to waive any rights or immunities of either party to the Agreement. 6 C. The relationship of the parties to this Agreement is that of independent contractors, and noth - 7 ing in this Agreement should be construed to create any agency, joint venture, or partnership relationship 8 between the parties. 9 D. This Agreement may be executed concurrently in one or more counterparts, each of which 10 shall be an original, but all of which together shall constitute one and the same instrument. 11 E. This Agreement, and any amendments, shall only be approved by authorized representatives of 12 the parties in writing. 13 F. Excused Performance. In the event that the performance of any terms or provisions of this 14 Agreement shall be delayed or prevented because of compliance with any law, decree, or order of any 15 governmental agency or authority, either local, state, or federal, or because of riots, war, acts of terrorism, 16 public disturbances, unavailability of materials meeting the required standards, strikes, lockouts, differ - 17 ences with workmen, fires, floods, Acts of God, or any other reason whatsoever which is not within the 18 control of the party whose performance is interfered with and which, by the exercise of reasonable dili- 19 gence, such party is unable to prevent (the foregoing collectively referred to as 'Excused Performance "), 20 the party so interfered with may at its option suspend, without liability, the performance of its obligations 21 during the period such cause continues, and extend any due date or deadline for performance by the pe- 22 riod of such delay, but in no event shall such delay exceed six (6) months. 23 G. Time Is Of The Essence: Vendor and University agree that time is of the essence in all re- 24 spects concerning this contract and performance hereunder. [PAGE 8 OF 10] Resolution to grant franchise to ARE -ON I WHEREUPON, the City and Franchisee, acting through their duly authorized officers and pursu- 2 ant to appropriate authority granted by their respective Board of Directors, do hereby execute this Fran- 3 chise. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 CITY OF LITTLE ROCK, ARKANSAS By: Mark Stodola, Mayor Date: By: Bruce T. Moore, City Manager ATTEST: Susan Langley, City Clerk BOARD OF TRUSTEES OF THE UNIVERSITY OF ARKANSAS, ACTING FOR AND ON BEHALF OF THE UNIVERSITY OF ARKANSAS, FAYETTE- VILLE, SPECIFICALLY THE ARKANSAS RE- SEARCH AND EDUCATION OPTICAL NETWORK, A CONSORTIUM OF ARKANSAS' PUBLIC FOUR - YEAR UNIVERSITIES, Date: ATTEST: Date: Date: Resolution to grant franchise to ARE -ON [PAGE 9 OF 101 I MAP OF FRANCHISE AREA 3 (SEE FOLLOWING PAGES) [PAGE 10 OF 101 Resolution to grant franchise to ARE-ON