13353I
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RESOLUTION NO. 13,353
3 A RESOLUTION TO GRANT A FRANCHISE TO THE BOARD OF TRUS-
4 TEES OF THE UNIVERSITY OF ARKANSAS TO USE THE PUBLIC
5 STREETS AND RIGHTS -OF -WAY FOR THE UNIVERSITY OF ARKAN-
6 SAS FOR MEDICAL SCIENCES TO PROVIDE NONEXCLUSIVE FIBER
7 OPTICS FOR UNIVERSITY CAMPUSES; AND FOR OTHER PURPOSES.
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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 Univer-
11 sity of Arkansas Medical Sciences (DAMS) campus; and,
12 WHEREAS, pursuant to Little Rock, Ark., Resolution No. 13,030 (September 15, 2009), the City
13 has already granted the Board of Trustees a franchise for use by the Arkansas Research and Educational
14 Optical Network ( "ARE -ON ") to bring the latest and fastest research and educational information to Uni-
15 versity campuses located within the City of Little Rock, Arkansas; and,
16 WHEREAS, this additional franchise with UAMS will provide the City with access, at no cost, to
17 four (4) pairs of dark fiber through the area of use by UAMS;
18 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY
19 OF LITTLE ROCK, ARKANSAS:
20 Section 1. The Mayor, City Manager and City Clerk, are authorized to execute the franchise agree -
21 ment attached as Exhibit A to this Resolution.
22 Section 2. Pursuant to this agreement, the City grants a nonexclusive franchise to the use of certain
23 public rights -of -way, and public properties, as noted in the map attached in Exhibit B.
24 Section 3. Severability. In the event any title, section, paragraph, item, sentence, clause, phrase,
25 or word of this resolution is declared or adjudged to be invalid or unconstitutional, such declaration or
26 adjudication shall not affect the remaining portions of the resolution which shall remain in full force and
27 effect as if the portion so declared or adjudged invalid or unconstitutional were not originally a part of the
28 resolution.
29 Section 4. Repealer. All laws and parts of laws inconsistent with the provisions of this resolution
30 are hereby repealed to the extent of such inconsistency, provided that this resolution shall be deemed an
31 amendment to Little Rock, Ark., Resolution No. 13,030 (September 15, 2009), to the extent that the Ar-
32 kansas Research and Educational Online Network (ARE -ON) considers this to be a part of the previous
33 franchise granted by the City.
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ADOPTED: August 2, 2011
ATTEST: APPROVED: /
19 u an n ley, City Clerk Mark Stodola, Mayor
AP AS TO LEGAL FORM:
Thomas M. Carpent r, City torney
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I H
2 EXHIBIT A
3 Franchise Agreement between the City of Little Rock and the Board of Trustees of the University
4 of Arkansas on behalf of the University of Arkansas for Medical Sciences
5 NON - EXCLUSIVE
6 FIBER OPTICS NETWORK FRANCHISE AGREEMENT
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8 This Agreement is entered into this day of , 2011, between the City of Little Rock, Arkan-
9 sas ( "the City"), a municipal corporation duly organized pursuant to the laws of the State of Arkansas, and Board of
10 Trustees of the University of Arkansas, acting for and on behalf of the University of Arkansas for Medical Sciences
11 (the "Franchisee ").
12 WITNESSETH
13 WHEREAS, the City recognizes that Franchisee is extending UAMS fiber optic local area network (LAN)
14 backbone from its Primary Data Center to its Disaster Recovery Data Center, a portion of which fiber is intended to
15 run through the City; and
16 WHEREAS, Franchisee has requested a franchise to use the hereinafter specified public rights -of -way,
17 which may include streets, alleys, sidewalks and public utility easements available for telecommunications purposes
18 that belong to or are controlled by the City or which are held in trust for the public by the City, hereinafter referred
19 to as the "public rights -of- way," to install conduit, fiber and other fiber optic facilities that will facilitate the connec-
20 tion of UAMS campus components located within the City to the UAMS network; and
21 WHEREAS, the parties recognize the City's right to control access to the subject public rights -of -way;
22 NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS SET
23 FORTH BELOW, THE PARTIES DO HEREBY CONTRACT AND AGREE AS FOLLOWS:
24 Section 1.
25 (a) Subject to the provision of this Ordinance, a non - exclusive fiber optic franchise is hereby granted to
26 Franchisee, and its successors and assigns, for the placement, operation and maintenance of fiber optic communica-
27 tion cable in the public rights -of -way and public grounds and places at the locations specified in Exhibit "A" hereto.
28 (b) It is agreed by the parties that this franchise shall commence on and shall continue
29 until Franchise is terminated by mutual agreement of the parties, abandonment, or due to breach by the Franchisee.
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1 (c) The material and substantial failure of the Franchisee to meet the terms of this Agreement, following
2 notice and reasonable opportunity to cure, shall constitute cause for termination of this franchise by the City. Any
3 termination will be declared in writing by the City Manager and shall be subject to appeal to the City Board. In the
4 event of termination, Franchisee shall have a reasonable period of time, not less than one hundred and eighty (180)
5 days, to terminate its operation of the fiber optic cable and facilities.
6 (d) This franchise is nonexclusive and nothing in this Agreement shall limit or otherwise impact the right
7 of the City to enter into other franchise agreements with other parties.
8 (e) Except with respect to termination of the Agreement, all references to the City Manager shall be
9 deemed to refer to the City Manager or the employees of the City designated by the City Manager to perform the
10 referenced function.
11 Section 2.
12 (a) All work involved in the construction, operation, maintenance, repair, upgrade, and removal of the fi-
13 ber optic communication cable shall be performed by the Franchisee in a manner and using material in accordance
14 with generally applicable City standards and methods, including with respect to public notice. Franchisee will de-
15 sign routes, to the extent feasible, using underground (rather than aerial) location of fiber and facilities. Franchisee
16 shall bore streets whenever possible. Where street cuts are unavoidable, they shall be performed in accordance with
17 generally applicable City standards.
18 (b) All underground installations of fiber optic cable shall be no less than (3) three feet below grade and no less
19 than (2) two feet below the elevation of drainage pipes or drainage ditches.
20 (c) Any damage to streets, sidewalks, driveways, curbs, gutters or other infrastructure taking place due to
21 placement of fiber optic cable shall be repaired by Franchisee or Franchisee's contractor at their expense.
22 Section 3. The City shall have no responsibility for the maintenance of the said fiber optic communica-
23 tion cable. If the same is damaged so as to be inoperable in any manner, it shall be removed or abandoned by Fran -
24 chisee, at Franchisee's sole cost and expense and in a manner meeting with the reasonable approval of the City
25 Manager. Permission is granted to Franchisee to trim trees upon and overhanging streets, alleys, sidewalks and pub -
26 lic places of said City so as to prevent the branches of such trees from coming in contact with any wires and cables
27 of Franchisee, all the said trimming to be done under supervision and direction of any City officials to whom said
28 duties have been or may be delegated.
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I Section 4. To the extent permitted by law, Franchisee (or Franchisee's contractor) shall be responsible
2 for all expenses, losses, costs, causes of action and judgments, including legal fees and expenses, arising from the
3 placement, maintenance, operation, repair and removal of said fiber optic communication cable pursuant to this
4 agreement, provided, however, Franchisee reserves its right to assert in good faith all claims and defenses available
5 to it in any appropriate forum and provided, further, that nothing in this Agreement shall be deemed or construed as
6 a waiver of sovereign immunity.
7 Section 5. Franchisee shall be member of and shall conform to the requirements of the Arkansas One
8 Call system, or its successor, for purposes of field locations of utilities prior to placement of the fiber optic commu-
9 nication cable and any maintenance or repair work thereto. Franchisee shall issue to the City Manager, or his desig-
10 nated agent, a written notice of anticipated schedule of initial installation of the Franchisee's system. Except in an
11 emergency situation, Franchisee shall provide reasonable advance notice to the City, typically through Arkansas
12 One Call, of maintenance activity regarding the Franchisee's system.
13 Section 6. Franchisee is self - insured as a sovereign entity of the State of Arkansas.. Franchisee's con -
14 tractor shall procure and maintain in effect at all times of the contractor's work within the City of Little Rock a pol-
15 icy or policies of commercial general liability insurance with minimum coverage of $1 million per occurrence.
16 Section 7. In consideration of the public purposes of Franchisee, the benefits to UAMS, and the City of
17 the project, and Franchisee's recognition of its obligations to the City under this Agreement, no fees shall be charged
18 for this Franchise; likewise, no licenses, charges or impositions shall be imposed by the City.
19 Section 8. The Franchisee shall, at its expense, protect, support, temporarily disconnect, relocate or re-
20 move from the subject public rights -of -way any property of the Franchisee when required at the reasonable discre-
21 tion of the City by reason of traffic conditions, public safety, street vacation, freeway and street construction, a
22 change or establishment of street grade, installation or construction of sewers, drains, water pipes, or any other type
23 of structures or improvements by the City; but, the Franchisee shall have the right of abandonment of its property,
24 subject to prior written approval of the City Manager. If federal or state funds are available at no expense to the City
25 for the purpose of defraying the costs to any utility company of any of the foregoing, such funds shall also be made
26 available to the Franchisee if the federal or state regulations permit. Should City seek to relocate any aerial fiber or
27 facilities to an underground location, Franchisee shall cooperate with such relocation in good faith, provided that
28 City shall pay for any such relocation to the extent funds are reasonably available for such project.
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Section 9. Neither the City nor its officers, employees, agents, attorneys, consultants or independent con-
tractors shall have any liability to the Franchisee for any liability as a result of any disruption or damage to the Fran-
chisee's network that occurs as a result of, or in connection with, any breaking through, movement, removal, altera-
tion, or relocation of any part of the network by or on behalf of the Franchisee or the City in connection with con-
struction, 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 emer-
gency situation, provide reasonable notice, typically through Arkansas One -Call, to the Franchisee so as to allow
the Franchisee to protect its network.
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:
University of Arkansas for Medical Sciences
Attn: Rhonda Jorden, Assistant Vice Chancellor for Information Technology
4301 West Markham, Slot 757
Little Rock, AR 72205
RLJorden @uams.edu
501- 603 -1401
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.
Section 11. The parties agree that City does not seek to exercise regulatory authority over the services pro-
vided by Franchisee or the fees charged for such services, and nothing in this Agreement authorizes City to exercise
such authority. Furthermore, the parties agree that nothing in this Agreement shall be deemed or construed to indi-
cate that UAMS 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 pursu-
ant to this Agreement, Franchisee shall install and provide to the City four (4) dark fiber pairs solely for City's non-
commercial 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 allocate 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 permit-
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I ted to attach lateral connections to the dark fiber pairs at such locations as reasonably permitted by Franchisee and as
2 reasonably necessary in order to connect the fiber pairs to City's facilities. Any such lateral fiber and connections
3 shall be at the sole cost and expense of City, although Franchisee may, in its sole discretion, determine whether to
4 purchase and install or have its contractor purchase and install the laterals, with such costs fully reimbursed by City,
5 or permit City and/or City's contractor, at City's sole cost and expense, to undertake such purchasing and installa-
6 tion consistent with standards established by Franchisee and subject to Franchisee's oversight and approval. If City
7 proposes a lateral and Franchisee determines that such a lateral would also be beneficial for purposes of Franchisee,
8 in its sole discretion, Franchisee will work, in good faith, to determine a mutually acceptable arrangement for shar-
9 ing of costs for the lateral. The cost of lighting the four fiber pairs shall be borne by the City. This section does not
10 entitle City to any rights granted to Franchisee through separate licenses, permits, agreements or easements that
11 Franchisee may have with any third party. If any of the four fiber pairs are damaged, or are required to be relocated,
12 then Franchisee shall undertake (or contract to undertake) the necessary repair or relocation, provided, however, that
13 any costs of repair or relocation of the fiber pairs, other than repair or relocation due to actions of Franchisee, shall
14 be reimbursed to Franchisee by City.
15 Section 13. The parties agree to the following general terms and conditions:
16 A. This agreement shall be governed by the laws of the State of Arkansas, without regard to its choice of law
17 principles.
18 B. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining
19 order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any
20 and all claims, disputes or controversies arising under, out of, or in connection with the Agreement which the parties
21 shall be unable to resolve within sixty (60) days shall be mediated in good faith. The party raising such dispute shall
22 promptly advise the other party of such claim, dispute or controversy in a writing which describes in reasonable de-
23 tail the nature of such dispute. By no later than fifteen (15) business days after recipient has received such notice of
24 dispute, each party shall have selected for itself a representative who shall have the authority to bind such party, and
25 shall additionally have advised the other party in writing of the name and title of such representative. By no later
26 than thirty (30) business days after such notice of dispute, the party against whom the dispute shall be raised shall
27 select a mediation firm and such representatives shall schedule a date with such firm for a mediation hearing. The
28 parties shall enter into good faith mediation and shall share the costs equally. If the representatives of the parties
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1 have not been able to resolve the dispute within thirty (30) business days after such mediation hearing, the parties
2 shall have the right to pursue any other remedies legally available to resolve such dispute. The State of Arkansas
3 shall be the sole and exclusive venue for any litigation or proceeding that may arise out of or in connection with this
4 contract. Notwithstanding the foregoing, nothing in this Article shall be construed to waive any rights or immunities
5 of either party to the Agreement.
6 C. The relationship of the parties to this Agreement is that of independent contractors, and nothing in this
7 Agreement should be construed to create any agency, joint venture, or partnership relationship between the parties.
8 D. This Agreement may be executed concurrently in one or more counterparts, each of which shall be an
9 original, but all of which together shall constitute one and the same instrument.
10 E. This Agreement, and any amendments, shall only be approved by authorized representatives of the parties
11 in writing.
12 F. Excused Performance. In the event that the performance of any terms or provisions of this Agreement
13 shall be delayed or prevented because of compliance with any law, decree, or order of any governmental agency or
14 authority, either local, state, or federal, or because of riots, war, acts of terrorism, public disturbances, unavailability
15 of materials meeting the required standards, strikes, lockouts, differences with workmen, fires, floods, Acts of God,
16 or any other reason whatsoever which is not within the control of the party whose performance is interfered with and
17 which, by the exercise of reasonable diligence, such party is unable to prevent (the foregoing collectively referred to
18 as "Excused Performance "), the party so interfered with may at its option suspend, without liability, the performance
19 of its obligations during the period such cause continues, and extend any due date or deadline for performance by
20 the period of such delay, but in no event shall such delay exceed six (6) months.
21 G. Time Is Of The Essence: Vendor and University agree that time is of the essence in all respects con -
22 cerning this contract and performance hereunder.
23 WHEREUPON, the City and Franchisee, acting through their duly authorized officers and pursuant to ap-
24 propriate authority granted by their respective Board of Directors, do hereby execute this Franchise.
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4 CITY OF LITTLE ROCK, ARKANSAS
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13 By:
14 Mark Stodola, Mayor
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16 Date:
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19 By:
20 Bruce T. Moore, City Manager
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24 ATTEST:
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27 Susan Langley, City Clerk
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29 Date:
30 //
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BOARD OF TRUSTEES OF THE UNIVERSITY
OF ARKANSAS, ACTING FOR AND ON BE-
HALF OF THE UNIVERSITY OF ARKANSAS,
FAYETTEVILLE, SPECIFICALLY THE ARKAN-
SAS RESEARCH AND EDUCATION OPTICAL
NETWORK, A CONSORTIUM OF ARKANSAS'S
PUBLIC FOUR -YEAR UNIVERSITIES
Date:
ATTEST:
Date:
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EXHIBIT "B"
(See map attached)
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