HomeMy WebLinkAboutOrdinance 4278 ORDINANCE NO, 4278
AN ORDINANCE PROVIDING FOR THEMANAGEMENT7M
PRESERVATION OF THE CITY'S RIGHTS-OF-WAY AND
PUBLIC PLACES WITH RESPECT TO
TELECOMMUNICATIONS SERVICES; PROVIDING FOR
TERMS AND CONDITIONS UNDER WHICH
TELECOMMUNICATIONS PROVIDERS AND LESSEES MAY
OCCUPY THE CITY' S RIGHTS-OF-WAY AND PUBLIC
PLACES; PROVIDING FOR COMPENSATION TO THE CITY
ON A COMPETITIVELY NEUTRAL AND NON-
DISCRIMINATORY BASIS ; CREATING AN OFFENSE AND
PROVIDING PENALTIES.
WHEREAS, the provisions of telecommunications services has become an essential part of
modem life that can significantly enhance the quality of life for the City's residents, businesses and
institutions; and
WHEREAS, the City's rights-of-way and public places are valuable assets to the City and
its residents, businesses and institutions; and
WHEREAS, the City has invested and will continue to invest substantial public monies in
the acquisition, construction and maintenance of public rights-of-way and public places; and
WHEREAS, grant of permission to a private entity to use public rights-of-way and public
places is a valuable property right that eliminates the necessity for the private entity to invest
substantial capital; and
WHEREAS, the City is entitled to fair and reasonable compensation from a
telecommunications provider who utilizes the City's public rights-of-way and public places for the
delivery of its services; and
WHEREAS, the United States Congress has recently adopted the Telecommunications Act
of 1996 (the "Act"), which substantially amended the telecommunications law of the United States;
and
WHEREAS, Section 253(a) ofthe Act provides that no local regulation or legal requirement
may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service; and
WHEREAS, Section 253(c) of the Act provides that nothing in the Act affects-the authority
of a State or local government to manage the public rights-of-way or to require fair and reasonable
compensation from telecommunications providers, on a competitively neutral and nondiscriminatory
basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is
publicly disclosed; and
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Ordinance No. 4278
WHEREAS, it is in the best interests of the City and its residents, businesses and
institutions, to establish rules and regulations that encourage the provision of telecommunications
services, encourage telecommunications competition, treat telecommunications providers on a
competitively neutral and nondiscriminatory basis, preserve and protect the City's rights-of-way and
public places, secure fair and reasonable compensation for the private use ofthe City's rights-of-way
and public places, and take such other necessary steps to responsibly protect the public health, safety
and welfare;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF FAYETTEVILLE,
ARKANSAS, THAT:
Section 1 . TITLE. This Ordinance shall be known as "The City of Fayetteville
Telecommunications Ordinance".
Section 2. DEFINITIONS. As used in this Ordinance, the following terns shall have
the meanings set out:
2. 1 . "Applicant" means atelecommunications provider or telecommunications lessee
that applies for a franchise or license pursuant to this Ordinance.
2.2. "Franchise fee" means compensation paid to the City by the telecommunications
provider or lessee in exchange for the use of the City's streets to deliver telecommunications
services.
2.3. "Gross revenues" means all revenues from basic local service, excluding, among
other things, extension, terminal equipment, toll, access, yellow pages, and other
miscellaneous equipment revenues, consistent with Arkansas Code Ann. § 14-200- 101
(a)(1 )(E).
2.4. "Person" means any individual, resident, citizen, business, firm, corporation,
partnership, governmental agency, or institution.
2.5 . "Streets" means all streets, roads, highways, alleys, rights-of-way, public utility
easements, public property, public ways and air space over such streets, roads, alleys, public
rights-of-way, public utility easements, public property and public ways located within the
geographic limits of the City.
2.6. "Telecommunications" means the transmission, between or among points
specified by the user, of information of the user's choosing without change in the form or
content of the information sent and received.
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Ordinance No. 4278
2.7. "Telecommunications facilities" or "facilities" means all conduits, manholes,
poles, antennas, transceivers, wires, cable (including fiber optic cable) and appurtenances
owned or utilized by a telecommunications provider or telecommunications lessee and
located in, under or over the Streets of the City and utilized in the provision of
telecommunications services.
2.8. "Telecommunications lessee" or "lessee" means any person, firm, corporation,
partnership, or other business entity, including "resellers," that provides telecommunications
services within the geographic boundaries of the City, including long-distance services that
originate or terminate in the City, by utilizing, purchasing or leasing a telecommunications
facility of a telecommunications provider or any element thereof, whether through purchase,
lease, contract, interconnection agreement, or other business arrangement; provided that a
person that owns its own telecommunications facilities in the City and utilizes, purchases or
leases telecommunications facilities or elements thereof of other telecommunications
providers in the City shall be classified as a telecommunications provider under the terms
of this Ordinance.
2.9. "Telecommunications provider" or "provider" means any person, firm,
corporation, partnership or other business entity, other than the City, that provides
telecommunications services within or without the geographic boundaries of the City by
utilizing its own telecommunications facilities to provide telecommunications services.
2. 10. "Telecommunications services" or "services" means any service delivering
telecommunications by a telecommunications provider or lessee that the provider or lessee
is authorized to provide under federal, state and local law, except that these terms do not
include "cable service" as defined in the Cable Communications Policy Act of 1984, as
amended by the Cable Television Consumer Protection and Competition Act of 1992, 47
U.S.C. § 521 et seq., and the Telecommunications Act of 1996.
2. 11 . "Transmission line" means a telecommunications facility that is used solely
for the purpose of transmitting signals from one point to another point and does not include
a line for the purpose of delivering telecommunications services to any person in the City.
Section 3. REQUIREMENT OF CITY'S CONSENT.
3. 1 . Every telecommunications provider and telecommunications lessee that utilizes
a telecommunications facility must obtain a franchise or license from the City in accordance
with this Ordinance in order to provide telecommunications services. Prior to providing any
telecommunications facility, or utilizing any telecommunications facility, the provider or
lessee must agree in writing to comply with the terms and conditions of this Ordinance and
enter into a franchise agreement or license agreement.
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Ordinance No. 4278
Section 4. APPLICATION PROCESS.
4. 1 . Any telecommunications provider or lessee seeking to utilize the Streets to
provide telecommunications service (the "Applicant") shall complete a brief application form
approved by the Department of Public Works. Such application form shall briefly describe
the general nature of the service to be provided, the type of construction or use of facilities
required, the name, address and telephone number of the person or entity seeking to provide
the service, and the name, address and telephone number of an authorized representative of
the person or entity.
4.2. The Applicant shall also provide evidence in a form satisfactory to the City that
it has the financial, legal and technical qualifications necessary to provide the service for
which it seeks a franchise or license. The provision of authorization from the Arkansas
Public Service Commission shall be deemed satisfactory evidence of these qualifications.
4.3. In considering whether to grant a franchise or license or impose terms and
conditions on the grant of a franchise or license, the City may consider, without limitation,
the following factors to the extent not already considered by the Arkansas Public Service
Commission:
a) the Applicant's financial ability to pay the compensation and fees required
by this Ordinance;
b) the Applicant's ability to construct and operate the telecommunications
facilities it seeks to utilize;
C) the Applicant's compliance with the terms and conditions of federal, state and
local law including applicant's compliance in other jurisdictions in which it
operates;
d) the capacity of the Streets to accommodate the Applicant's proposed
facilities;
e) the damage ordisruption, if any, ofpublic orprivate facilities, improvements,
or landscaping if a franchise or license is granted;
f) the public interest in minimizing the cost and disruption of construction in,
on, under and above the Streets;
g) the effect of public health, safety or welfare if a franchise or license is
granted;
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Ordinance No. 4978
h) the availability of alternate routes and/or locations for the proposed facilities;
i) whether the imposition of certain terms and conditions or the failure to grant
the requested franchise or license would prohibit or have the effect of
prohibiting the ability of the Applicant to provide any interstate or intrastate
telecommunications services; and
j) any other factor relating to whether the grant of a franchise or license
impinges on the City's right to manage its Streets.
4.4. An Applicant for a telecommunications franchise or license shall submit with
its Application a fee in the amount of $ 150.00 in partial compensation to the City for
processing the Application.
4.5 . If the City approves the Application, the provider or lessee shall reimburse the
City for any reasonable costs and expenses, including attorney's fees, incurred by the City,
which are not already covered by the Application fee required in Section 4.4 of this
Ordinance, to review and evaluate the Application and prepare and negotiate a franchise
agreement or license agreement with the provider or lessee, and including the costs of any
publication of an ordinance as provided in Section 5 .
4.6. All Applications and/or amendments to franchise agreements shall be forwarded
by the City of Fayetteville Telecommunications Board for their advice, if any, prior to City
approval.
4.7. Fees, costs and expenses imposed by City on a telecommunications provider or
lessee shall, only to the extent specifically required by applicable law including the
regulations of the Arkansas Public Service Commission, be credited toward the Franchise
fee imposed on the telecommunications provider or lessee.
Section 5 . FRANCHISE OR LICENSE AGREEMENT.
5 . 1 . As a condition of the grant of a franchise or license, the provider or lessee shall
enter into a franchise agreement or a license agreement with the City. A telecommunications
provider shall enter into a franchise agreement. A telecommunications lessee shall enter into
a license agreement.
5 .2. The franchise agreement or license agreement shall contain such additional
terms and conditions as are not in conflict with the terms of this Ordinance as may be
necessary and appropriate for the particular circumstances of the provider or lessee and its
delivery of telecommunications services.
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Ordinance No. 4278
5.3 . The franchise agreement or license agreement shall be adopted as an ordinance
by the City prior to the initiation of any construction or the delivery of any service.
5 .4. A franchise agreement may be amended from time to time upon agreement of
the City and the provider or lessee.
5 .5. It is not the policy or intention of the City in this Ordinance to prohibit the
provision of telecommunications service within the City but rather to protect the City' s
interests in the Streets.
Section 6. CONSTRUCTION MAINTENANCE.
6. 1 . Construction Application. Prior to the beginning construction, excluding routine
maintenance or emergency repair, of any telecommunications facility, the Applicant shall
apply to the Department of Public Works of the City for permission to carry out construction
activities in the City's Streets, and shall comply with all requirements of that department or
any other ordinance or code applicable hereto.
6.2. Construction Plan. Prior to beginning construction, as defined above, the
Applicant shall submit a plan describing the proposed construction. The plan shall specify:
a) The design of any telecommunications facilities to be constructed or utilized;
b) A map showing the precise location of any telecommunications facility to be
constructed or utilized and any appurtenant facilities such as poles,
attachments, guy wires, and the like;
C) A description of any agreements that have been reached or are necessary with
other telecommunications providers or providers of other utility services
regarding use of existing facilities;
d) The timetable for completion of construction, including any phases of
construction;
C) Such other information as will provide the City with pertinent information
relating to the construction of the telecommunications facilities, including
any pertinent information requested by the City.
6.3. Prior Authority. Prior to beginning construction, the Applicant shall have
received all necessary regulatory authority to construct a telecommunications facility or
provide telecommunications service from the Arkansas Public Utilities Commission, the
(LI
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Ordinance No. 4278
Federal Communications Commission, or other appropriate state or federal agency.
Evidence that it has received such regulatory authority shall be filed with the City.
6.4. Standards of Construction. The method of construction, workmanship used,
and materials utilized in the construction shall conform to all applicable federal, state and
local statutes, rules, regulations and ordinances. All work shall be performed in a safe,
thorough, and reliable manner using materials of good and durable quality so as not to create
a hazard or dangerous condition on the Streets. If, at any time, it is determined by the City
or any other agency or authority of competent jurisdiction that any telecommunications
facility presents a danger to the public health, safety or welfare, then the telecommunications
provider or lessee shall, at its own cost and expense, upon thirty (30) days advance written
notice, at its own cost and expense, promptly correct all such conditions.
6.5 . Maintenance and Repair. Any telecommunications facility constructed or
utilized pursuant to a franchise or license shall be maintained and repaired in accordance
with the standards and under the terms and conditions set out in the preceding paragraph and
such other terms and conditions as shall appear in this Ordinance or the franchise agreement
or license agreement.
6.6. Minimal Disruption. Construction, maintenance and repair of the
telecommunications facilities shall be conducted in such a manner as to minimize any
interference with or disruption of the City's Streets, traffic, residences, businesses and
institutions. The provider shall at all times endeaver to use trenchless technology in
appropriate circumstances.
6.7. Restoration. Any disturbance of the City's Streets shall be repaired and restored
by the telecommunications provider or lessee at its expense and to a condition as good as that
prevailing before the work causing such disturbance was commenced.
6.8. Location of Facilities. New poles and other new facilities shall be located to
the extent feasible in such a way as to minimize their effect on the visual landscape and on
other aesthetic considerations and so as to minimize inconvenience.
6.9. Burial of Transmission Lines. A telecommunications provider shall place its
transmission line or other facilities underground in certain areas designed by the City
Council, but only if existing utility providers maintaining line or facilities in the same areas
have or will be required by the City to place their lines or facilities underground.
6. 10. Co-location: Sharing of Pole Space. To the maximum extent feasible, a
telecommunications provider constructing a new transmission line or other facility, or
expanding an existing line or facility, shall utilize facilities. The owner of any existing
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Ordinance No. 4278
facility shall to the extent permitted by law and consistent with any pole attachment
regulations of the Public Service Commission, the Federal Communications Commission or
other appropriate agency, permit the telecommunications provider to utilize its pole.
6. 11 . Movement of Facilities. A telecommunications provider shall be required to
temporarily disconnect or relocate any of its facilities located in the Streets at its own
expense when required by the City by reason of traffic conditions; public safety; or the
construction, installation or repair of any public road, highway, building, park or other public
project. The provider shall cooperate with any other public utility authorized by the City to
provide utility service utilizing the City's Streets. If a private entity is required by City to
modify or affect the Streets, that entity shall compensate the provider for its costs for the
disconnection or relocation of any of the provider's facilities. Provider shall be notified by
said private entity as soon as practical of any plan affecting provider's facilities.
6. 12. Tree Trimming. A telecommunications provider is authorized to trim trees in
the City's Streets to the extent necessary to properly maintain its transmission line or other
facility, but prior to major trimming projects, it shall provide 24 hours' notice to the City.
The City, at its option, may choose to supervise such tree trimming. Upon conclusion of the
tree trimming, the provider shall immediately clean up and remove all debris.
6. 13 . Curb Cuts. No provider shall make paving cuts or curb cuts without the
written consent of the Director of the Department of Public Works.
Section 7. PERFORMANCE BOND.
7. 1 . Prior to the provision of service, the provider shall post a performance bond,
satisfactory to the City, in the City's favor to ensure faithful performance of the terms and
provisions of the franchise agreement and any planned construction as designated in the
construction plan the provider has filed with the City pursuant to Section 6.2. The bond shal l
be equivalent to ten (10%) percent of the total cost of the construction as provided in the
construction plan, or $100,000, whichever is greater.
7.2. In the event the provider fails to comply with this Ordinance or the franchise
agreement, or to complete the construction in a safe, timely, and competent manner, after
notice and a reasonable opportunity to cure, the City may recover,jointly and severally from
the principal and surety of the bond, any damages or loss suffered by the City as a result,
including the full amount of any compensation, indemnification, or cost of removal or
abandonment of any property of the provider, plus a reasonable allowance for attorneys' fees,
up to the full amount of the bond.
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Ordinance No. 4278
7.3 . The City in its sole discretion may waive this requirement of a bond upon
provider demonstrating sufficient financial resources or upon good cause shown to the
Director of the Department of Public Works.
Section 8. TERM OF FRANCHISE FOR PROVIDERS.
8. 1 . Unless otherwise specified in a franchise agreement, a telecommunications
franchise shall be for a term of no less than five (5) years and no more than twenty (20)
years.
Section 9. TERM OF LICENSE FOR LESSEES OR RESELLERS.
9. 1 . Unless otherwise specified in a license, a telecommunications license shall be
for a term of no less than five (5) years and no more than twenty (20) years.
Section 10. FEES.
10. 1 . Amount. Inconsideration of the City's grant of authority to utilize the City's
Streets for the provision or lease of telecommunications services and for other good and
valuable consideration, the telecommunications provider or lessee shall pay a franchise fee
or license fee to the City in the following amounts:
a) A telecommunications provider who provides service to residents, businesses
or institutions in the City shall pay an amount equal to four percent (4%) of
its annual Gross Revenues within the corporate limits of the City during the
preceding year. Payments shall be in equal quarterly installments on or
before the last day of March, June, September and December of each year;
b) A telecommunications provider who provides service solely to persons
outside the geographic boundaries of the City by utilizing a transmission line
shall pay the City a reasonable annual fee based upon an installation fee and
charge per linear foot of transmission line that traverses the City or based
upon such other method as the City deems appropriate. Such a fee may be
paid in a lump sum in advance, or in a combination of a lump sum plus
annual payment as the City deems fit;
C) A telecommunications lessee who delivers telecommunications services shall
pay the City four percent (4%) of its annual Gross Revenues derived from the
delivery of telecommunications service within the City.
10.2. Public Interest Oblieations. If, as a condition of the grant of a franchise or a
e'
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Ordinance N04278
license, the City negotiates with a telecommunications provider or lessee regarding certain
conditions or requirements in the public interest as provided in Section 15 of this Ordinance,
the City shall, if requested of a telecommunications provider, provide a credit against the fee
based upon the percentage of Gross Revenues it would otherwise require in compensation
so that the total compensation paid to the City is no more than the equivalent of that which
would be required under Section 10. 1 hereof. Any such conditions or requirements will be
the result of negotiations between the City and a telecommunications provider or licensee.
10.3. Time of Payment. All fees due and owing shall be paid on a quarterly basis
on or before the last day of March, June, September and December of each year.
10.4. Late Payment. In the event that any payment is not actually received by the
City on or before the date due under this Ordinance, interest thereon shall accrue from such
date until received at the rate of ten percent ( 10%) per annum.
10.5 . Calculation of Payments. All payments made to the City shall be
accompanied by a statement certified as true by an appropriate employee of the provider or
lessee explaining the basis of the calculation on which the payment was made.
10.6. Payments. Payments shall be made by certified check to the City of
Fayetteville, c/o City Treasurer, 113 West Mountain, Room 309, Fayetteville, Arkansas
72701 or by wire transfer to an account of the City designated in writing by the City
Treasurer.
10.7. Public Disclosure. The payment of any fee under this Section 10 shall be
publicly disclosed.
10.8. Audit. Upon reasonable notice, the City shall have the right to inspect and
copy the telecommunications providers or lessee's books and records that are reasonably
necessary for the City to determine compliance with this Section 10. A telecommunications
provider or lessee shall maintain sufficient financial records governing its operation in the
City to allow the determination of Gross Revenues and to otherwise document accurate
payment of fees. To the extent permitted under the Arkansas Freedom of Information Act,
the City shall maintain the confidentiality of such records.
10.9. Fees not a Tax. Unless otherwise inconsistent with applicable law, the fees
provided in this Section 10 are not taxes and are separate from, and in addition to, any and
all federal, state, local and city taxes as may be levied, imposed or due from a
telecommunications provider or lessee, its customers or subscribers, or on account of the
lease, sale, delivery or transmission of telecommunications services; provided that no fee
imposed by this section shall be imposed in violation of state or federal law.
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Ordinance No. 4278
Section 11 . INDEMNIFICATION.
11 . 1 . Asa condition of the grant of a franchise or license, the telecommunications
provider or lessee shall agree to indemnify, defend and hold harmless the City, its officers,
boards, commissions, agents and employees (collectively the "Indemnified Parties") from
and against any and all lawsuits, claims, causes of action, actions, liabilities, demands,
damages, judgments, settlements, disability, losses, expenses (including attorneys' fees and
disbursements of counsel) and costs of any nature that any of the Indemnified Parties may
at any time suffer, sustain or incur arising out of, based upon or in any way connected with
the provider' s or lessee's operations, the exercise of the franchise or license herein granted
or the breach by the provider or lessee of its obligations under this Ordinance and the
franchise agreement or license and/or based upon or in any way connected with the activities
of the provider or lessee, or their subcontractors, employees and agents. The provider or
lessee shall be solely responsible for and shall indemnify, defend and hold the Indemnified
Parties harmless from and against any and all .matters relative to payment of the providers
or lessee's employees, including compliance with Social Security and withholding
requirements.
11 .2. The indemnification obligations of the provider or lessee set forth in this
Ordinance are not limited in any way by the amount or type of damages or compensation
payable by or for the provider or lessee under Worker's Compensation, disability or other
employee benefit acts, acceptance of insurance certificates required under any franchise
agreement or license, if any, or the terms, applicability or limitations of any insurance held
by the provider or lessee.
11 .3 . The City does not, and shall not, waive any rights against the provider or
lessee which it may have by reason of the indemnification provided for in this Ordinance
because of the acceptance by the City, or the deposit with the City by provider or lessee, of
any of the insurance policies described in this Ordinance.
11 .4. The indemnification of the City by a provider or lessee provided for in this
Ordinance shall apply to all damages and claims for damages of any kind suffered by reason
of any of the provider's or lessee's operations referred to in this Ordinance regardless of
whether or not such insurance policies shall have been determined to be applicable to any
such damages or claims for damages.
11 .5. A provider or lessee shall not be required to indemnify the City for negligence
or misconduct on the part the City or its officials, boards, commissions, agents, or
employees, provided that the provider or lessee shall be responsible for its proportionate
share, if any, of any damages or claims resulting from any negligent act or omission.
e
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Ordinance No. 4278
Section 12. INSURANCE.
12. 1 . Asa condition of the grant of any franchise under this Ordinance, the provider
shall, at its sole expense, take out and maintain during the term of the franchise public
liability insurance with a company licensed to do business in the State of Arkansas with a
rating by A.M. Best & Co. of not less than "A" that shall protect the provider, the City and
their officials, officers, directors, employees and agents from claims which may arise from
operations under the franchise, whether such operations be by the provider or a lessee, or its
officials, officers, directors, employees and agents or any subcontractors of the provider or
a lessee. This liability insurance shall include, but shall not be limited to, protection against
claims rising from bodily and personal injury and damage to property, resulting from
provider's or lessee's vehicles, products and operations. The amount of insurance for single
limit coverage applying to bodily and personal injury and property damage shall not be less
than Two Million Dollars ($2,000,000.00). The following endorsements shall be attached
to the liability policy:
a) The policy shall provide coverage on an "occurrence" basis;
b) The policy shall cover personal injury as well as bodily injury;
C) The policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the carrier's standard
endorsement as to bodily injuries, personal injuries and property damage;
d) Broad form property damage liability shall be afforded;
e) The City shall be named as an additional insured on the policy;
f) An endorsement shall be provided which states that the coverage is primary
insurance and that no other insurance maintained by the City will be called
upon to contribute to a loss under this coverage.
g) Standard form of cross-liability shall be afforded; and
h) An endorsement stating that the policy shall not be canceled without thirty
(30) days notice of such cancellation given to the City.
12.2. In any franchise granted pursuant to this Ordinance, the City shall reserve the
right to adjust the insurance limit coverage requirements of the franchise no more often than
once every three (3) years. Any such adjustment by the City will be no greater than the
increase in the Arkansas Consumer Price Index (all consumers) for such three (3) year
period.
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Ordinance No. 4278
12.3. Provider or lessee shall submit to City documentation of the required
insurance, including a certificate of insurance signed by the insurance agent and companies
named, as well as all properly executed endorsements.
12.4. A telecommunications franchisee or licensee may elect to self insure to
provide the insurance coverage required hereunder provided the licensee, upon request,
submits to the City copies of its certificates of self-insurance and of its most recent audited
financial statements showing self-insurance reserves or other assets sufficient to pay
judgments equal to the limits set forth above. A telecommunications franchisee or licensee
shall also provide to the City documentation evidencing its process for reviewing and paying
claims. The City shall be protected by such self-insurance to the same extent as an additional
insured on a policy issued by an insurance company. If, during the term of a franchisee or
licensee, granted hereunder, a self-insurance program ceases, or a franchisee's or licensee's
assets or reserves are no longer sufficient to comply with the above coverage requirements,
the licensee/franchisee shall immediately notify the City of such lapse of coverage and shall
obtain commercial insurance in accordance with the above requirements within thirty (30)
days following such notice.
Section 13. RENEWAL.
13.1. A telecommunications provider or lessee that seeks to renew its franchise or
license granted by the City pursuant to this Ordinance shall submit an application of renewal
to the City no less that 180 days before expiration of its franchise or license. The Applicant
shall provide such necessary information to show that it meets the requirements for renewal
set out in this Section 13.2.
13.2. In considering whether to grant a renewal request, the City shall consider
whether the telecommunications provider or licensee:
a) if applicable, continues to have the financial, legal and technical ability to
provide telecommunications services to the City's residents, businesses and
institutions;
b) has complied with the terms of this Ordinance and its franchise or license
agreement;
c) has promptly cured any violation of this Ordinance or breach of its franchise
or license agreement;
d) has fully and
promptly
paid any
franchise fees
or other compensation
required by the
City and
any taxes
imposed by the
State or the City;
O
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Ordinance No. 4278
e) agrees to meet any special needs or interests determined by the City and to
be imposed by the City in a competitively neutral and nondiscriminatory
way; and
f) has cooperated with the City in carrying out the terms and conditions of this
Ordinance and the franchise or license agreement and has provided such
pertinent information as the City has requested throughout the term of the
agreement.
The City shall also consider any other matter that is relevant to the renewal
of the franchise or license.
13.3. To the extent no inconsistent with state law, the City reserves the right to
refuse to renew any franchise for any reason, provided that the City shall comply with
Section 253 of the Telecommunications Act of 1996.
13.4. If it chooses not to renew the franchise or license, the City shall first provide
the telecommunications provider or lessee with an opportunity to be heard before the City
Council and city shall thereafter issue a written decision stating its reasons for non -renewal.
Section 14. REMOVAL.
14.1. Within thirty (30) days following written notice from the City, any
telecommunications provider or other person that owns, controls or maintains any obsolete
or unusable telecommunications facility or related appurtenances that create a visual blight
or nuisance to the public on, in, under or above the Streets shall, at its own expense, remove
such facilities and appurtenances from the Streets.
14.2. A telecommunications facility need not be removed if renovation or
restoration is planned within a reasonable period of time by the telecommunications
franchisee or licensee or if the telecommunications facility is being utilized for
telecommunications services. In such case, prompt written notice shall be provided to City
specifying why such telecommunications facility should not be removed and the specific
time frame, if applicable, for any planned renovations or restoration.
Section 15. PUBLIC INTEREST OBLIGATIONS.
15.1. Asa condition of granting a franchise or license under this Ordinance, the City
may negotiate with a provider regarding the provisioning of certain payments, in -kind
contributions, provisions of capacity for utilization by the City, educational institutions or
other public entities, or to undertake other activities or make available other facilities for the
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Ordinance No. 4278
purpose of enhancing the health, welfare or safety of the City and its residents, businesses
and institutions.
15.2.
If the City and provider or lessee agree to some or all of the conditions of
Section 15.1,
the City shall disclose such
conditions publicly.
Section 16. TRANSFER; TRANSFER OF CONTROL.
16.1. A grantee or transferee of a telecommunications provider or licensee shall
notify, at the same time it applies to the Arkansas Public Service Commission for a transfer
or change of control, the City of: 1) its intent to be a telecommunications provider or
licensee; 2) its intent to comply with this Ordinance; 3) to enter into a franchise agreement
with the City and shall within twenty (20) days of request by the City, provide such
information pertinent to the proposed transaction as may reasonably be required by the City.
16.2. To the extent not inconsistent with state law, failure to obtain the approval of
the City Council as required by this Section 16 may be deemed a forfeiture of the applicable
franchise or license by the City Council.
Section 17. EXISTING TELECOMMUNICATIONS PROVIDERS.
17.1. A telecommunications provider delivering service in the City as of the effective
date of this Ordinance who previously has been awarded a franchise or license may continue
to operate according to the terms of the franchise or license it has been awarded. Upon
completion, expiration or termination of such a franchise or license, the telecommunications
provider promptly shall comply with the terms of this Ordinance.
17.2. Any telecommunications provider or lessee who as of the effective date of this
Ordinance is delivering service without a franchise or license shall submit an application
pursuant to Section 4 of this Ordinance with 90 days of the effective date. The provider or
lessee shall also submit a written statement indicating that it comply with the terms and
conditions of this Ordinance while its Application is pending and that it shall pay all
appropriate fees retroactive to the effective date.
Section 18. FORFEITURE.
18.1. If, in the City's judgment, a telecommunications provider or lessee is or may
be in violation or breach of any term or condition of this Ordinance or franchise or license
agreement pursuant hereto, the City shall notify the provider or lessee of the suspected
violation or breach. Upon notification, the provider or lessee shall supply to the City within
30 days all information and documentation the City requests with respect to the suspected
Page 16
Ordinance No. 4278
violation or breach and shall make such statement to the City as it wishes in an effort to
explain or mitigate the violation or breach.
18.2. If the City is not satisfied with the information, documentation and explanation
of the provider or lessee, it may make a finding of a breach or violation and notify the
provider or lessee of such finding. Thereafter, the provider or lessee shall have a reasonable
period of time (the "Cure Period") as determined by the City to take such steps as are
necessary to cure the violation or breach.
18.3. If, at the conclusion of the Cure Period, the City determines that there remains
a breach or violation of this Ordinance or franchise or license agreement pursuant hereto, the
City shall schedule a hearing before the City Council or a duly authorized committee or
representative of the Council for the purpose of making a final determination as to whether
a violation or breach exists. At the hearing, the provider or lessee, representatives of the
City, and the public may present evidence relevant to the alleged violation or breach.
18.4. To the extent not inconsistent with state law, at the conclusion of the hearing,
or within 14 days thereafter, the City Council shall take such steps as it deems appropriate,
including one or more of the following:
a) pursuing any of the remedies available to it as provided in Section 19 of this
Ordinance;
b) ordering the provider or lessee to take such steps as are necessary to cure the
violation or breach on pain of forfeiture;
c) declaring a forfeiture of the franchise or violation of the terms of the license
and ordering the provider to take such steps as are consistent with state law.
18.5. If the provider or lessee is dissatisfied with the decision of the City, it may seek
relief to the Arkansas Public Service Commission, it applicable, or in Washington county
Circuit Court or federal court of competent jurisdiction.
Section 19. ENFORCEMENT; PENALTIES.
19.1. A violation of any provision of this Ordinance relating to the health or safety
of citizens of the City shall be a misdemeanor, subject to a fine of not more than $500 for
each offense and punishable by not more than 12 months in jail. If the provider or lessee is
a corporation and is convicted of a misdemeanor, it shall be subject to a fine as provided in
Section 10.99 of the City of Fayetteville, Arkansas Code of Ordinances.
Page 17
Ordinance No. 4278
19.2. A violation of any provision of this Ordinance shall be a separate and distinct
offense and shall subject the offender to a civil penalty in the amount of $500 for each day
the violation continues. The City may recover such penalty in a civil action in a court of
competent jurisdiction if the offender does not pay the penalty within twenty (20) days of the
time the offender has been cited for the violation.
19.3. The City
may seek
injunctive
relief or abatement orders in a court of
competent jurisdiction to
enforce the
provisions
of this Ordinance.
19.4. The City may pursue any of the remedies in Sections 18 or 19 of this
Ordinance separately or in conjunction with one another.
Section 20. GENERAL PROVISIONS.
20.1. Captions. The captions to sections throughout this Ordinance are intended
solely to facilitate reading and shall not affect the meaning or interpretation of this
Ordinance.
20.2. No recourse against the City. Without limiting such immunities as the City
or any other person may have under applicable law, a telecommunications provider or lessee
awarded a franchise or license under this Ordinance shall have no recourse whatsoever
against the City or its officials, members, boards, commissions, agents or employees for any
loss, cost, expense, liability or damage arising out of any action undertaken or not undertaken
pursuant to any provision or requirement of this Ordinance or because of the enforcement
of this Ordinance or the City's exercise of its authority pursuant to this Ordinance, or other
applicable law, unless such recourse is expressly authorized by statute, this Ordinance or
other ordinance. Nothing in this Section 20.2 shall limit a telecommunications provider's
right to challenge the validity or enforceability of of any provisions contained in this
Ordinance.
20.3. Force Maieure. In the event a telecommunications providers or lessee's
performance of any terms, conditions, obligations or requirements of this Ordinance is
prevented or impaired due to any cause beyond its reasonable control, such inability to
perform shall be deemed to be excused for the period of such inability and no penalties or
sanctions shall be imposed as a result thereof, provided that the provider or lessee has
notified the City in writing within ten (10) days of its discovery of the occurrence of such an
event. Such causes beyond the provider's or lessee's reasonable control shall include, but
shall not be limited to, acts of God, civil emergencies and labor unrest or strikes.
20.4. Non -waiver of remedies. The failure of the City to take any action to enforce
any violation or breach of this Ordinance shall be deemed a waiver of its right to
subsequently enforce any identical or similar violation or breach.
S
u
•
Page 18
Ordinance No. 4278
20.5. Severability. If any portion of this Ordinance is declared invalid by any court,
agency, commission, legislative body, or other authority of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent portion, and such declaration
shall not affect the validity of the remaining portions hereof, which remaining portions shall
continue in force and effect.
20.6. Notices and Filings. All notices required by this Ordinance to be provided to
the City shall be provided in writing to the Fayetteville City Clerk. All filings shall be made
with the City Clerk unless otherwise provided in this Ordinance.
PASSED AND APPROVED this 21" day of the November , 2000.
APPROVED:
By://V//4/
Fred Hanna, Mayor
ATTEST:
By:
Heather Woodruff, City Clerk
e S
NAME OF FILE:
CROSS REFERENCE:
Fz7
Date
Contents of File Initials
/f alt . 1i2 %S?
_
0/1
NQRTI-IW EST,AARI(ANS aS •DI{.FIONRECEIVED
.� JAN 19 2001
Arkathas De m�o&at �_s � Grp t
nrkan�as,, ,,G,�jf -Newpapur ACCTG. DEPT.
D,
•
AFFIDAYIT OF PUBLICATION
/
1, /l'
that I am
a -f
Democrat -Gazette Newspaper, primal and
, do solemnly swear
of the Arkansas
ished at Lowell,
Arkansas and that from my own personal knowledge and
reference to the tiles of said publication the advertisement of
Was inserted in the regular editions on
ic, aooi
Publication Charge %'7, £ %
Purchase Order //
Subscribed and sworn
— day of
before me this
2001.
Public
My commission expires —
OFFICIAL SEAL
• CAROLYN COAKLEY
Notary Public - Arkansas
Washington County
P.O. BOX 1607.21' N. LAST i\VLiNUL • FAY l:i'I"1'I VILER, AIt KA NS AS 72701 • 501-.11_'-I-iOn
14F • MONDAY, JANUARY 15, 2001 � Arkansas. Democrat 70 'mitt •
ta�1t axes trlmu� I Nodrss i4 altdeS x200
shat be inequal quarts installmentsdamage; mmonications der or lessees REQUEST FOR PR ALS
rry son injuries end DrtpuM 9 D The Pulaski Canty T CoalNon is
on or before the last day of March, June, dl Broad form property damage liability may be in violas or breach of any seeking proposals to qualified i di -
September and December of each shall be afforded; t rte or Contlhon this Ordinance or victuals or firms for the ovfsion of ser-
yyeear, b) A olacommunimijons provider who e) The City shall be named as an addi- I dories or license, agreement pursu- vices for Te Preg ntio Preven
banal insured on the poll vet hereto, the City fhall notify the pro- Support Se for n mothers re -
provides service solely to persons at- q Ni endorsement shall) be provided bider or lessee of the suspected vi la- tumirto to tech I. Y are invited to
side the geographic boundaries of the which states that the coverage s prima- tin or breach. Updn notification, the submit propos4ii ordance with I
City Uoyy uh Bing a transmission line shall ry insurance and that no other Insur- Povider or lessee shall supply to the the terms and t is outlined here -
pay the City a reasonable annual fee an maintained by the City will be dJpry� within 30 days all information and in. You should review the ate- h
based upon an installation fee and called upon to contdbute to a loss under JJJ��x�r%umentation the City requests with no alined in N lication to assure I
charge per linear foot of transmission this coverage; p'95pea to the suspedetl violation or a clear understen in and complete re-
line that traverses the City or based gg) Standard form of cross -liability shall each and shall make such statement son.
to ( uestetl inlorma- , L
upon such other method as the City be afforded; and t'the City as it wishes;in an effort to ex- on. All proposaIs�s Id be submitted
deems appropiate. Such a fee may be h) Ni endorsement statlng that the pDoll- Pain or mitigate the violation or breach. to the TEA CoalI 's Administration
paid in a lump sum in advance, or in a ty shall not be canceled without tlhidy 1rB.2, If the Ciry is not satisfied with the 523 South Louisiana Street-
combnaton of a lump sum dots annual (30) days notke of such Cancellation i formation, documentation and expa- Suite 405, little k, AR 72201, re-
payment as the G yr Lms fit; give to the City. ,nation of the provider fr lessee, it may Coved no later tit 5 P.M. local time • �
c A telecamnunhrations lessee who 12.2. In any franchise grated pursuant and
a finding of a br or violation January 23, 2a1. -
delaers talecanmunkatons services to this Ordinance, the Ciry shalreserve noti N the provider lessee of such All questions re ding this proposal
shag pay the City Out percent Of its the right to adjust the insurance cover- finding. hereafter, the rovider or l- should be diheae to Robbie Ingle; . -
annual Gross Revenues demvefrom age requirements of the franchise no see shall have a reasonable period of 501-374-1977 or x 374-1682. Appli-
the delivery of telecommunicatiahs more often than once every three (3) time (the 'Cure Period ).as determined cations may be ' ad up at the
service within the City. years. Any such adjustment by the Ciry by the City to take shhCth steps as are AdminisbabI 0 Monday through
10.2. Public Interest Obligations. If, as will be no greater than the increase in necessary to are try9g violation or Friday, 9 a.m. to pm. Please contact
a condton of the gram of a franchise or the Arkansas Consumer Price Index 1 reach. Robbie Ingle to a ge delivery of cop-
a license, the City negotiates with a (all consumers) for won three (3) year .3. If, at the condo of the Cure Iication
teleammunicaIahs provider a lessee period. f edod, the City date es that there p Acceptance of request for proposal'
regarding certain conditions or require 12.3. Provider or lessee shall submit to mains a breach or vi lUon of this Or- issued.by the P ki County TEA Coa-
meets in the public interest as provided City documentation of the required in manse or franchise ot cense agree -
in titian, as hndicat by the submission of
Section 15 of this Ordinance, the City surance, Including a certrmate of Insur- ant pursuant hereto, a City shall roposal by sponge, will bind the
shat, wired d a telecommunica- once signed by the insurance agent chedule a hearing ore he city responder to terms and Conditions '•
gins r, provide a Crean against and canpaies named, as well as all ,oundl or a duly autho end committee herein set fortexcept as specifically
the fee based upon the percentage of Dropedy executed endorsements. r representative of the until for the qualified In addendum sued in
Gross Revenues it would otherwise re 12.4. A telecommunications franchi- pugwse of making a fit determine- connection the with. Any alleged oral I
quire In Compensation se that the total see or licensee may elect to self insure on as to whether a viola on or beach agreement a an ement made by a -
compensebon paid to the city is no to provide the insurance coverage rot- exists. At the hearing, the provider or responder wi agent of the Pulaski
more than the equivalent of mat which quired hereunder provided the icons- I65sea representatives of the City, and County TEA litionr an aaggant of its
world be required under Becton 10.1 ee,,upon request, submits to the City le public may preset evidence rate- fiscal agentwi be disregard haa.
hereof. My such conditions or require- copies of its certificates d sell-inwr- i 0 I ,�„ Tk:n f----
mss will he the result of negotiations
ante and of its most recent audited fi- Pulaski noun TEA Coalition to awed
between the City and a telecommuni- nandal statements showing self-Insur- state law, at the conclusion f the hear- a contract, y and costs incurred in
cations provider or license, ante reserves or other asses sufficient ing, or within 14 days thereafter, the the preparath I of a proposal or to pro -
103. Time of Payment. All fees due and to pay judgments equal to the limits set City Council shall take such steps as it area contfor services. The Po- "
owing shall be paid on a UUuaaemy basis forthmissewor licen ee shell alsotions more of ems a pfrPowin ; inducting one or the nAgFit Ioki County
T t or rejeclt any a all pro -
n reserves
on or before the last day d March, June, vide to the City documentation evi- a pursuing a of the remedies avail- posels recei as a result of this re
year. and December of each a�p g ovi
year tlendng ith process for reviewing ad le to it as provided in Section 19 ofa this 4oast or to ca I in pea or in is entirety
10.1. Late Payment In the event that paying claims. The City shall be pro- Ordinance; this proposal 0 is in the best interest of "h
payment is not actually received by tatted by such self-insurance to the b) ortleing the provider or lessee to the Pulaskiny TFA Coalition as
dCay on or before the date due under same extent as an additional insured take such steps as are necessary to its clients.
this Ordinarce, Interest thereon shall on a Policy ssued by an insurance can- are the violation or breach on pen of 2010675f
name ham such date until received at panny. If, doing the term of a franchisee forfeiture;
the rated ten percent (IO%) per an- or licensee, granted hereunder, a self- c) declaring a forfeiture of the franchise TRUSTEE'S N T7�E OF DEFAULT
man - insurance program ceases, or a fran- or violation of the terms of the license AND INTENTION TO SELL
10.5. Calculation of Payments. Al pay- chisees or licensee's assets or re and ordering the provider to take such YOU MAY LOSE YOU ROPER-.
ments made to to city shall be aaom- serves are no longer sufficient to can- steps as are consistent with state law. TY IF YOU DO NOT TAK panled by a statement certified as We ply with the above coverage require- 18.5. If the provider or lessee is dissat- ATE ACTION.
y an appropriate employee of the pro-'- meets, the licensee/franchisee shall isfied with the decision of the City, it may IF YOUR PROPERTY SOLD,
vider or Pessee explaining the basis of immediately notify the City of such seek relief to the Arkansas Public Ser- YOU WILL REMAIN LIAR FOR ANY -
the calculation on which the payment lapse of coverage and shall obtain cam- vice Commission, it applicabe, or in DEFICIENCY AND AN A ION FOR ..
was mace. merohal insurance in accordance with Washington County Cirat Cart or COLLECTION MAY BE BROUGHT'.
10.6. Payments. Payments shall be the above requirements within thirty federal cart of competent f'udsdictio. AGAINST YOU.
made by certified check to the City of 130) days follovag such notice, Section 19. ENFORCEMENT; PEN- NOTICE IS HE EBY Cl EN that on
Fayetteville, do City Treasurer, 113 Sabo 13. RENEWAL ALTIES. January 22, 2001, at or bout 12:00
West Mountain, Room 309, Fay- 13.1. A telecommunications provider 19.1. A violation of an 9 Provision of this P.M., the followirt8 red I any will be
etewlfe, Arkansas 72701 a by wire or lessee that seeks to renew its Iran- Ordinance relating totthe health or safe- sold at the BRETON ounty Court-
trander to an account of the City desig- chise or license granted by the City pur- ty of citizens of the City shall be a misde- house to the h' bid r for cash:
rated in wolfing by the Ciry Treasurer. suant to this Ordinance shall submit an meanor, subject to a fine of not more Part of the 114 of a NE 1/4 of: -
10.7. Public isdosure. The payment application of renewal to the City no than $500 for each offense and punish- Section 34, Township I North, Range
of any fee under this Sewn 10 shill be less that 160 days before expiration of able by not more than 12 months in jail. 33 West, described as eginning at a' , ,
publcty disclosed its franchise or license. The Applicant If the provider or lessee is a corporation point 625 feet Noah 001 rtes 02 min"
10.8. Audit. Upon reasonably notica, shall provide such necessary in orma- and is convicted of a misdemeanor, a urns 26 seconds West a SE comer ,.
the City shat have the right to inspect on
to show that it meets the require- shall be subject to a fine as pprovided in of the said SE 114 of E 1/4; thence •.
and copy the telecommunications pro- meats for renewal set out in this Section Section 10.99 of the City 0$ Fayetteville, South 89 degrees 57 r notes 34 sec
vides or lessee's books and records 13.2. Afrcansas Code of Ordinances. onds West 1320.03 is thence North
that are reasonably necessary for the 13.2. In considering whether to grant a 19.2. A violation of any provision of this 00 degrees W mint 49 seconds
City to determine compliance with this renewal request the City shall Consider Ordinance shall be a separate and dis- West 317.61 feet; then North 89 de- `,
Section 10. A telecommunications pro- whether the lelecommunicatons pro- tinct offense and shall subject the of- gross 50 minutes 02 seconds Eastvi•.
eer or lessee shall maintain sufficient eider or licensee; fender to a civil penalty in the amount of 1320.54 feet, Hence S tit 00 rees
financial records gomaintain
ng its opera- a) if applicable, continues to have the fi- $500 for each day the violation onhtin- 02 minutes 26 secon East 320.51
ton in the City to allow the determine- martial, Iegal and technical ability to Lies. The City may recover such penalty fast to the Plane of inning. Subject
S of Gross Revenues and to other- provide teleommunicatons services in a civil action in a court of competent to the rghi of way of a my road on the
wise document accurate payment of to the City residents, businesses and jurisdiction if the offender does not pay East side there
fats. To the extent permited under the instwtions; I the penalty in twenty (20) days of the More commonly j wit as: 10683
Arkansas Freedom of Information Act, b) has complied with the terms of this time the offender has been cited for the WhnminAha m, Gentry, 72734
the City shag maintain the confidentia0- Ordinance and its franchise or license violation. On September 10 1997, Rolland' -
ry of such records. agreement; 19.3. The City may seek injuncive relief Balli, and Panda Bal xecaed a deed
10.9. Fees not a Tax. Unless otherwise c) has promptly cured an violation of or abatement orders in a tan of tan- of trust in favor of A Mortgage Corn-
-
Inconsistent with applicable law, the this Ordinance or breach otits franchise patent ludsdktion to enforce the provi- pay which was duty rtled on Sep
foes provided in this 'onto are not or license agreement shone o this Ordinance. tom 17, 1997, a Cok 1997, Page..
taxes and are separate from, and in ad- dl has fully and promptly paid any fran- 19.4. The City may pursue any of the 079901 in the real state records of
6tion to, any an all federal, state, local choSO fees or other compensation re- remedies in section l B or 19 of this Or- BENTON County, AF The owner(s) of
and dry taxes as may be levied, im- quired by the City and any taxes im- dinance separately or in conjunction the property have de- Iled by failing to
posed or sue from a telecommunira- posed by the State or the Cry; with one another. make the monthly pa ants when ore..
lions provider or lessee, its customers a) agrees to meet icyy speaal needs or Section 20. GENERAL PROVISIONS. The sale held pursi nt to this Notice.
a tau nbors, or on aaad of the interests determined by the City and to 20.1 Captions. The captions to sec- may be rescinded a he Trustee's op-
base, sale, delivery or transmission of be imposed by the City in a competitive lions throughout this Ordinance are In- tion at any time.
tetea sale delivery
services; Drovid- ly neutral and nodscnminatory way; tended solely to facilitate reading and WILSON & ASS dATES, P.L.L.C..,
ad that no It imposed by this section and shag not affect the meaning or interpre 1521 Merrill Hive, Suite D-220 �•
snail be imposed in violation of state or 0 has cooperated with the City in carry- ation of this Ordinance. Little R Arkansas 72211
federal law, ing at the terns and conditions of this 20.2. No recourse against the City. (507) 219-9388
Section 11. INDEMNIFICATION Ordinance and the franchise or license Without limiting such immunities as the 19802591/567-9096
11.1. As a condition of the grant of a agreement and has provided such per- City or any other person may have un-
hadhise or license, to telecommuni- bnenl information as the City ryryas re- der applicable law, a tetecommtrnuce• TRUSTEE'S OTI E OF DEFAULT
cations provider or lessee shall agree to quested thtoughoul the terms- thetor,; provider or lessee awarded a ran- AND INT TI TO SELL
Indemnify, defend and hold harmless agreement , chise or license under this Ordinance YOU MAY L E 'OUR PROPER -
the City, its officers, boards, terms- The CiN shall also consider any other shall have no recourse whatsoever TY IF YOU DO TAKE IMMEDI"
sions, agents and employees (stile- mater that's relevant to the renewal of against the City or its officials, mein- ATE ACTION.
Ivey the 9ndemofi Pa, es from the franchise or license. bers, boards, commissions, agents a IF YOUR P PERTY IS SOLD,
and against any and all lawsuits, 13.3. To the extent no inconsistent with employees for any toss, cast, expense, YOU WILL REk& N LIABLE FOR ANY .•
daims, causes of action, actions, liabili- state law, the City reserves the right to lion undedamage
aaken oraundertakenout of ypur- DEFICIENCY
Y BECTION FOR
BROUGHT
ties, demands, damages, judgments, refuse to renew any franchise for airy suapt to any oor not or requirement nt of
settlements, disability, losses, expens-. reason, provided vtlat the C'r shall P< AGAINST YOU.
es pncludng attorneys' fees end ifs- coin with Section 253 of the Tele- this -Ordinance or because of thP en- NOTICE IS H EBY GIVEN that on
hursemes of ctunseq and costs of fomament of this Ordinance or the JamuTI 2 at or about 12:00
communications Act of 1996. City's exercise of its authority pursuant P M. the fallowi real property will be
any nature that any of the Indemnified 13.4. If it chooses not e renew the Iran- to this Ordinance, or other applicable
parties may at any time suffer, sustain chime or license, the City shall first pro- law unless such recourse is expressly hold t the BE i County Coun-
or incur arising at of, based upon, or in vide the telecommunications provider law, unless
stature, this Ordinance or rasa to the high t bider for cash: .
any way Co netted with the providers or lessee with a opportunity to be Lot 5, Black Avondale Second. " k
or lessees operations, the exercise of heard before the City Coumdl and city other ordinance. Nothing in this Section ton Msion, Bell Vista Village,. Ba-
the franchise a license hereingranted20.2 Shall limit a telecommunications validity
ton County, Arks as, as Shown in Plat
shall thereafter issue a written derision providers tight to challenge he validly ty'
or the breach by Ne provider or lessee stating its reasons for non -renewal. Record D, Page 4.
of its obligations under this Ordinance Section 14, REMOVAL or enforceability of any provisions Co- More common) known as: 9 Pease
tamed in this Ordinance.
and the franchise agreement or license 141. Within thirty (30) days following Drive, Bella Vista R 72714
and/or based upon or in any way Con- written notice from the City, any tale 20.3. Force Maieure. In the event a tale Om October 1 19Nic98, Timothy ed
netted with the acWities of the provider communications provider or other per- communications providers or lessee's a dead and Ka R. Nichols executed
or lessee, or their subcontractors, em- son that owns, controls or maintains performance of any terms, f thOconditions, a deed of trust avor of First Greens -
and agents. The provider or any obsolete or unusable telecommu- noorhigma is pier requirements ir o mofthisd08d'o boron Home Equi ; Inc. which was dory `
s shall be solely rend and
for nkatons facility or related appuRe p n recorded on Oct r 21, 1998, at Book
and shall indemnify, defend atl holdan rouse beyond its reasonable con- 1998 P e 112 In the real estate
y. not mats that create a visual blight or nui- trot, such in Iliry to puma m shall be records of BE N County, AR. The
the Indemnified Pelves harmless from sonce to the public on, in, under or dosmed to be excused for the period of owner s) of the eM have defaulted
and against anend all matters relative above the Streets shall, at its own ex- such inability and no penalties or Sanc-
to payment d the providers or lessee's parse, remove such facilities and cop- lions shall be imposed as a result there- ty lai mg tom a the monthly pay'
employees, including compliance with purtenances from he Streets. ments when due.
Social Starry and withholding re 142 A leleo the facility of provided that the provider or lessee The sale held rsuant to this Notice
Social Se.has notified the City in wrting within ten ma be rescind the Trustee's cp-
11.2. The indemnification icagon obligators rnyeSjgetpnbe planed within a reason -
Ord
days of its n vent.very of the occur
ses ton at arry time.
of the provider or lessee set forth In this able period of time by the telecgmmunF re yo of such an event. Such causes W LS 52 8 SOCIATES, PD-220
Ordinarnce are not limited in any way by canof2nc�hisae or Iicensea or if the beyond the providers a lessee's rea- 1521 M " I Drove, Suite D-220
the amount or of dame es or can- telecommunications fall' is rein uti- sonable control shall include, but shall Use , Arkansas 72211 ,,
nsetion pay 1ryyppeBe or for a provider 9 not be limned to, acts of God, civil enter- (501) p19-g3$g
pen alit try tit P I'¢etl for telecommunications so sodas and labor unrest or stokes.
a lessee under Worker's Compensa- In such case, prompt written notice g198028IXI169-
Ion, dsablli or other employee bane p 20.4 No -waiver takeof remedies. The fail-
ry shall be provided to I ionsf specifying why Lire ot Ne CityN to any action to an-
al acts, acceptance of insurance cal such telecommunications lachluly farce any violation or breach of this Or- TRUSTEE'S P E OF DEFAULT
cotes required under any franchise shall not be removed and the speddinance shall be deemed a waiver of its AND INTl TION TO SELL
PROPER -
agreement a license, 9 ay, or the time frame, if applicable, for any right to subsequently enforce any den- YOU MAY L E YOUR PROPER.
tents, applicability a limitations of any tanned renovations or restoration. TY IF YOU NOT TAKE IMMEDb
. Insurance held the provider or lel- v licalor&milarvblationorbreah. .h
by 4ectbn 15. PUBLIC INTEREST OBLi- 205 Severabiliry. If any portion of this ATE ACTION.
see. CATIONS. Ordinate is declared invalid by any IF YOUR OPERTY IS SOLD..
11.3. The City does not, and shall not, 15.1. Asa condition of grating a Imo- court, agency, commission, legislative YOU WILL RE IN LIABLE FOR ANY
waive any Sts against the provider or chse or license under phis Ordinance, or other authority of Coin dent DEFICIENCY D AN ACTION FOR
lase which it may have W reason of the City may negotiate with a provider urisdiction, such portion shall be COLLECTION MAY BE BROUGHT
the indemnification provide for In this regarding the provisioning of certain deemed a separate, distinct and rode- AGAINST YO
Ordinance because of the acceplawe payments, in -kind contributions, pry- ender rton, and such declaration NOTICE IS 1, at GIVEN that on
by the City, or the deposit with the City abets d capacity for utilization by the BY
shat notafect the validity of the re Janua 22, 1, at or about 12:00
by provider or lessee, of any of the in- City, education instihtions or other maiming portions hereof, which remain- P.M., the IOII no real property will be
wrenco policies described in this Ord- gu lk; entities, or to undertake other to- ingportions shat contlnue in force and sold at the I TON County Court-
nance. tvibes or make available ether facilities X house to the hi set bidder for cash:
11.4. The indemnification of the City by for the purpose of enhancing the 20.6 Notices and Filings. NI micas rot A Pan of the I 1/4 ofthe SW 1/4 and--.
a provider or lessee pprovided for in this heath, welfare or safety of the Ciry and quired by this Ordinance to be provided a part d the S 114 of the NW 114, all in •,
Ordinance shag appy to all damages is residents, businesses and instil- to the City shall be prodded in writing to Section 14, To ishlg 20 North, Range
and claims for damages of any kind tad- tons. the Fayeteville Ciryry Cleric. All filings 29 West Ben Canty, Arkansas, '
sred by reason of any of the providers 15 2. If the City and provider or asses shall he made with tfie GN Clerk unless described as f sus: Commending at
a lessee's operations referre to in his agree to some or all of the condl6as of otherwise provided in his Ordinance. the SW Comer tie NW 1/4 of the SW
Ordinance regardless of whether or not ;::ion 15.1, the City shall disdcee Passed and Approved this 21st day of 1/4 of said S (14; thence South 89
such insurance policies shall have such conditions Wblidw. the November, 2070. degrees 08 mu his 40 secondsEast
been determined to be applicable to 16. 16. TRANSFER; TRANSFER Approved:By1Fred Hanna;Maya 999.99 feet; th ce'Noll degrees anysuchdamages or claims for dam- OF CONTROL • - Attest: By: Heather Woodruff, City 14 minutes 10 s rifts West, along the
a 1.5. A prov der or lessee shill not bo 16.1. A grantee or transferee of a tale- Cleri Wester line of E 114 ofthe sold NW
communicatons provider or licensee January 15, 2001 1/4 d tlhe SW 1320.00 feet to the
required to indemnity the City for negli- shall notify, at the same time it appliesto JanuaL NW Comer they f and the point of be-
gence our misconduct on the part tie the Arkansan Public Service Canmis- ginning, thence 88 degrees 25
Ciry or its officials, boards, commis- Sion for a transfer or change of control, minutes 50 seo Is West 46A.97 feet
dons, agents, or employees, provided the City of: 1)its intent to be a telecom- PUBLIC NOTICE thence North 07 egran 01 minutes 40 -
that the provider or lessee shall be re municabons provider or licensee; 2) its APPUCAT N FOR FREE seconds West 170.68 lid, thence
sponsible for its proportionate share, it intent to comp wit this Ordinance; 3) UTILITY CO ECTIONS FOR North 01 degri 12 minutes 30 sec -
any, deny damages or claims resulting to enter into a franchise agreement with COLLEGE STA HON SUBURBAN onds West 2 feet, thence North
from any neggliggent act or omission. the Citryy and shall within twenty (20) SEWER ROVEMENT 81 dec.39
5 minutes 40 seconds
Section 12.INSURANCE days of request by the City, provide DIST CT #243 East 344.39 fen thence South 28 de -
12.1. As a condition of the grant of any such information pertinent to the pro- FUND BYA ONOCIC SAS MUNITY roes 36 min es 30 seconds East
franchise under hthis Ordinance, the posed transaction as may reasonably AND 437.69 feet, t nce South 89 tlegreos
provider shall, at its sole expense, take be required by the City. DEVELOPME PROGRAM AND 28 minutes 5 seconds West 115.00 .
cot and maintain during the term of the 16.2. To the extant not inconsistent with PULAS COUNTY feet to the poin f beginning.
franchise public Iiaairy insurance with state law, failure to obtain the approval Representatives of Pulaski Canty µore comm I known as: 12344
a company licensed to do business in of the Cnv Council as required by this are requesting a� Iicatons from area Cavewad Ro iRogers, AR 72756
the State of Arkansas with a rating by Section I ma9 be deemed a iodation residents a for IS
war connections to on May 28 199 John Peterson,
A.M. Bed 8 Co. of not less than 'A that of the apulBabe franchise or license by the College Steti i Suburban Sewer and Rosemai Peterson executed a
shall protect the provider, the City and the City Cquncil. Improvement 01st #243. Funding of dead of trust ii favor of WMC Mortgage
their officials, officers, directors, em- Section 17. EXISTING TELECOMMU- connections for al ncomeeligible resit- Corporation v ich was duty recorded .
poyees and agents from claims which NICATIONS PROVIDERS, dents is being pro led by an Arkansas on June 4, 1118, at Book 1998, Page
may arse from operations under the 17.1. A telecommunications provider Community and Economic Develop- 058795 in th real estate records of
franchise, whether such operations be delivering service in the City as of the ef- ment Program gr BENTON Co , AR. The owner(s) of
by the provider or a lessee, or its obi- festive date of this Ordinance who pDre- Representatives ill be available at: the property h e defaulted by failing to
oats, officers, directors, emplooyyees viousy has been awarded a lrendhse College Station C is Center on Janu- make the man y payments when due.
and agents or any subcontractors d the or license may carious to operate a- Cry 19, 2001 at 6:C PM to accept appt- The sale het pursuant to this Notice
provider or lessee. This liabliry insur- cording to the terms of the franchise or cations. If you c not be present ban may be rescir ad at the Trustee's cop- -,
ante shall include, but shag not be limit- license it has been awarded. Upon cause of ph9s timing ties, pease tion at an9 tint
ad to, protection against claims rising completion, ex oration or termination of call Vow SYime at 907-2470 se WILSON ASSOCIATES, P.L.LC,
from bodily and personal inury and such a franchise or license, the tale- that special a rt gements can be 1521 errill Drive, Suite D-220
damage to popery, resusng Irom pro- communice6ons provider promptly made to deliver an plication. L e Rock, Arkansas1) 72211
vltler's or lessees vehkde, products shall campy with the terms of this Ord- In order to lease have she Iloywinr application, ortnatio
arid operations. The amount of incur- nance. p 9 1980286f(398-200047
ante br singla limit coverage applying 17.2. Any telecommunications gravid reedy: TRUSTEE'S NOTICE OF DEFAULT
to bodily end personal injury and prof er or lessee who as of the aHedive date I. Social Sec ry all household
and AND INTENTION TO SELL
ea datnge shall not be less than Two of this Ordinance is delivering service sources of incom or household tic
Mi ion Dal lam ($2,000,000). The fo- without a franchise or license shall sub- spats.
lowing endorsements shall be attached mit an application pursuant to Section 4 2. Property ta receipt indicating
to the liability poi : of this Ordinance with 90 days of he ef- property ownrshi (n you own proper- BUY IT.
a) The shall provide coverage on fecNe date. The provider or lessee y).
m 'occurrence' bais; shall also submit a written statement in- 3. If stn -employ copies of most re- S E t1IL IT.
b) The policy shall cove personal injury dicating that it Compy with the terms centy prepared 1 forth to verify in -
as well es booby hit1ury; and conditions of this Ordinance while Come.NI T
c) The psobIcy shall cover blanket c m- its Application is pending and that it If Yyou have ques s conceming alt-
- bectual liab'gry subject to the standard shall pay all appropdate fees retroac- gibil'dy for the pr ram, pease call
unpivtyersal exclusion of contractual Iia- We to the effective date. Vance Simelton at g -2470.
enoorrsemenntas to bodily Injuries, par-., 181 onIf,tin FORFEITURE
e City's judgment, a tale- 1997130