HomeMy WebLinkAboutOrdinance 5406 ORDINANCE NO. 5406
AN ORDINANCE TO AMEND ORDINANCE NO. 2990 OF MARCH 6, 1984
TO ACKNOWLEDGE THAT SOME FAYETTEVILLE CITIZENS AND
BUSINESSES ARE NOW WITHIN THE PRAIRIE GROVE TELEPHONE
COMPANY FRANCHISE AREA AND TO APPLY THE SAME FRANCHISE
FEE TO BOTH TELEPHONE COMPANIES, TO AMEND ORDINANCE NO.
4278 OF NOVEMBER 21, 2010 AND TO CODIFY THESE COMBINED
ORDINANCES
WHEREAS,the Fayetteville Board of Directors passed Ordinance No. 2892 on February
15, 1983 authorizing Southwestern Bell Telephone Company and its successors to continue to
operate in Fayetteville and use our public rights-of-way for its lines and charged a franchise fee
for such usage; and
WHEREAS, the Fayetteville Board of Directors passed Ordinance No. 2990 on March 6,
1984, which amended the first two sections of Ordinance No. 2892 and specified a franchise rate
of four percent (4%); and
WHEREAS, on November 21, 2010, the Fayetteville City Council passed Ordinance No.
4278, an eighteen page, complex telecommunications franchise fee application ordinance which
also set the franchise fee at four percent (4%); and
WHEREAS, after the City of Fayetteville's western annexation, our city limits extended
into the Prairie Grove Telephone Company's authorized service area such that we need to
authorize its use of rights-of-way and establish an identical franchise rate of four percent (4%)
for telephone services provided to those Fayetteville citizens and businesses.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends
Ordinance No. 2990 by deleting the first sentence of its Section 1 and enacting a replacement
sentence as follows:
"Section 1: AT&T and the Prairie Grove Telephone Company and
their successors and assigns are authorized to continue to operate their
telephone businesses and all businesses incidental to or connected with
Page 2
Ordinance No. 5406
the conducting of a telephone business and system within the City of
Fayetteville, Arkansas."
All of the remaining language of Section 1 remains unchanged except references to a singular
telephone company will now relate to both telephone companies.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby repeals
Ordinance No. 4278, but enacts substantial portions of it in the renamed Chapter 110:
Telecommunication Franchises and Billposting as shown on Exhibit A attached.
PASSED and APPROVED this 3`d day of May, 2011.
APPROVED: ATTEST:
By: —�By:
Mayor SONDRA E. SMITH, City Clerk/Treasurer
`N P, Tl2r,`
;FAYETTEVILLE;
EXHIBIT "A"
CHAPTER 110: TELECOMMUNICATION FRANCHISE AND BILLPOSTING
110.01 Billposting telecommunications provider or telecommunications
lessee and located in, under or over the Streets of the
(A) The posting of any bills, notices, or City and utilized in the provision of
advertisements of any kind whatever upon any telecommunications services.
electric light, telephone, or telegraph pole within the
limits of the city is hereby prohibited. "Telecommunications lessee" or "lessee" means
any person, firm, corporation, partnership, or other
(B) It shall be unlawful for any person to post, stick, business entity, including "resellers,' that provides
paint or otherwise attach (or cause to be posted, telecommunications services within the geographic
stuck, painted, or caused to be otherwise attached) boundaries of the City, including long-distance
any bill sign, notice, poster, or other advertisement to services that originate or terminate in the City, but
any building, fence, wall, vehicles, or other property, utilizing, purchasing or leasing a telecommunications
public or private, without first having obtained facility of a telecommunications provider or any
permission from the owner of such property. element thereof, whether through purchase, lease,
contract, interconnection agreement, or other
(Code 1965, §§13-2, 13-3; Ord. No. 241, 9-11-1908; Ord. business arrangement; provided that a person that
No.3773,§1,4-5-94;Code 1991,§110.01) owns its own telecommunications facilities in the City
and utilizes, purchases or leases telecommunications
110.02 Telecommunication Franchises facilities or elements thereof of other
telecommunications providers in the City shall be
(A) Definitions. As used in §110.02 the following classified as a telecommunications provider under the
terms of this Ordinance.
terms shall have the meanings set out:
"Telecommunications provider" or "provider"
"Applicant" means a telecommunications provider means any person, firm, corporation, partnership or
or telecommunications lessee that applies for a other business entity, other than the city,that provides
franchise or license pursuant to this Ordinance. telecommunications services within or without the
"Franchise fee" means compensation paid to the geographic boundaries of the City by utilizing its own
telecommunications facilities to provide
City by the telecommunications provider or lessee in telecommunications services.
exchange for the use of the City's streets to deliver
telecommunications services "Telecommunications services" or "services"
"Gross revenues" means all revenues from basic means any service delivering telecommunications by
a telecommunications provider or lessee that the
local service, excluding, among other things,
provider or lessee is authorized to provide under
extension, terminal equipment, toll, access, yellow
federal, state and local law, except that these terms
pages, and other miscellaneous equipment revenues do not include"cable service"as defined by the Cable
pursuant to Arkansas Code Ann. §14-200-101. Communications Policy Act of 1984, as amended by
"Person" means any individual, resident, citizens, the Telecommunications the Cable television Consumer Protection and
business firm, corporation, partnership, governmental Competition Act s 1992,ations Act cof 1996.
U.S.C. §521 et seq., and
agency, or institution.
" highways, "Transmission line" means a telecommunications
Streets" means all streets, roads, hi
9 y facility that is used solely for the purpose of
alleys, rights-of-way, public utility easements, public transmitting signals form one point to another point
property, public ways and air space over such streets, and does not include a line for the purpose of
roads, alleys, public rights-of-way, public utility delivering telecommunications services to any person
easements, public property and public ways located in the City.
within the geographic limits of the City.
"Telecommunications" means the transmission,
(B) Requirement of City's Consent.
between or among points specified by the user, of
information of the user's choosing without change in Every telecommunications provider and
the form or content of the information sent and telecommunications lessee that utilize a
received. telecommunications facility must obtain a franchise or
license from the City in accordance with §110.02 in
"Telecommunications facilities" or "facilities" order to provide telecommunications services. Prior
means all conduits, manholes, poles, antennas, to providing any telecommunications facility, or
transceivers, wires, cable (including fiber optic cable) utilizing any telecommunications facility, the provider
and appurtenances owned or utilized by a or lessee must agree in writing to comply with the
terms and conditions of this Ordinance and enter into franchise or license would prohibit or have the effect
a franchise agreement or license agreement. of prohibiting the ability of the Applicant to provide any
interstate or intrastate telecommunications services;
(C) Application Process. and
Any telecommunications provider or lessee (who j) any other factor relating to whether the grant of
has not yet been awarded a franchise such as AT&T a franchise or license impinges on the City's right to
and the Prairie Grove Telephone Company) seeking manage its Streets.
to utilize the Streets to provide telecommunications
service shall complete a brief application form (D) Franchise or License Agreement
approved by the Department of Transportation
Services. Such application form shall briefly describe 1. As a condition of the grant of a franchise or
the general nature of the service to be provided, the license, the provider or lessee shall enter into a
type of construction or use of the facilities required, franchise agreement or a license agreement with the
the name, address and telephone number of the City. A telecommunications provider shall enter into a
person or entity seeking to provide the service, and franchise agreement. A telecommunications lessee
the name, address and telephone number of an shall enter into a license agreement.
authorized representative of the person or entity.
2. The franchise agreement or license
1. The Applicant shall also provide evidence in a agreement shall contain such additional terms and
form satisfactory to the City that it has the financial, conditions as are not in conflict with the terms of this
legal and technical qualifications necessary to provide Ordinance as may be necessary and appropriate for
the service for which it seeks a fr4anchise or license. the particular circumstances of the provider or lessee
The provision of authorization from the Arkansas and its delivery of telecommunications services.
Public Service Commission shall be deemed
satisfactory evidence of these qualifications. (E) Construction Maintenance.
2. In considering whether to grant a franchise or 1. Construction Application. Prior to the
license or impose terms and conditions on the grant beginning construction, excluding routine
of a franchise or license, the City may consider, maintenance or emergency repair, of any
without limitation, the following factors to the extent telecommunications facility, the Telecommunications
not already considered by the Arkansas Public Company shall apply to the Department of
Service Commission: Transportation Services of the City for permission to
carry out construction activities in the City's Streets,
a) the Applicant's financial ability to pay the ands shall comply with all requirements of that
compensation and fees required by this Ordinance; department and all applicable ordinances or code
b) the Applicant's ability to construct and sections.
operate the telecommunications facilities it seeks to 2. Construction Plan. Prior to beginning
utilize; construction, as defined above, the Applicant shall
c) the Applicant's compliance with the terms submit a plan describing the proposed construction.
and conditions of federal, state and local law including The plan shall specify:
applicant's compliance in other jurisdictions in which it
operates; a) The design of any telecommunications
facilities to be construction or utilized;
d) the capacity of the Streets to b) A map showing the precise location of
accommodate the Applicant's proposed facilities; any telecommunications facility to be constructed or
e) the damage or disruption, if any, of public utilized and any appurtenant facilities such as poles,
or private facilities, improvements, or landscaping if a attachments, guy wires,and the like;
franchise or license is granted; c) A description of any agreements that
f) the public interest in minimizing the cost have been reached or are necessary with other
and disruption of construction in, on, under and above telecommunications providers or providers of other
the streets; utility services regarding use of existing facilities;
g) the effect of public health, safety or d) The timetable for completion of
welfare if a franchise or license is granted; construction, including any phases of construction;
h) the availability of alternate routes and/or e) Such other information as well provide
locations for the proposed facilities; the City with pertinent information relating to the
construction of the telecommunications facilities,
I) whether the imposition of certain terms including any pertinent information requested by the
and conditions or the failure to grant the requested City.
3. Prior Authority. Prior to beginning provider constructing a new transmission line or other
construction, the Applicant shall have received all facility, or expanding an existing line or facility, shall
necessary regulatory authority to construction a utilize existing facilities or place its facilities
telecommunications facility or provide underground. The owner of any existing facility shall
telecommunications service from the Arkansas Public to the extent permitted by law and consistent with any
Utilities Commission, the Federal Communications pole attachment regulations of the Public Service
Commission, or other appropriate state or federal Commission, the Federal Communications
agency. Evidence that it has received such regulatory Commission or other appropriate agency, permit the
authority shall be filed with the City. telecommunications provider to utilize its pole.
4. Standards of Construction. The method of 11. Movement of Facilities. A
construction, workmanship used, and materials telecommunications provider shall be required to
utilized in the construction shall conform to all temporarily disconnect or relocate any of its facilities
applicable federal, state and local statutes, rules, located in the Streets at its own expense when
regulations and ordinances. All work shall be required by the City by reason of traffic conditions,
performed in a safe, thorough, and reliable manner public safety, or the construction, installation or repair
using materials of good and durable quality so as not of any public road, highway, building, park or other
to create a hazard or dangerous conditions on the public project. The provider shall cooperate with any
Streets. If, at any time, it is determined by the City or other public utility authorized by the City to provide
any other agency or authority of competent utility service utilizing the City's Streets. If a private
jurisdiction that any telecommunications facility entity is required by City to modify or affect the
presents a danger to the public health, safety or Streets, that entity shall compensate the provider for
welfare, then the telecommunications provider or its costs for the disconnection or relocation of any of
lessee shall, at its own cost and expense, upon thirty the provider's facilities. Provider shall be notified by
(30) days advance written notice, at its own cost and said private entity as soon as practical of any plan
expense, promptly correct all such conditions. affecting provider's facilities.
5. Maintenance and Repair Any 12. Tree Trimming. A telecommunications
telecommunications facility constructed or utilized provider is authorized to trim trees in the City's
pursuant to a franchise or license shall be maintained Streets to the extent necessary to properly maintain
and repaired in accordance with the standards and its transmission line or other facility, but prior to major
under the terms and conditions set out in the trimming projects, it shall provide at least 24 hours'
preceding paragraph and such other terms and notice to the City. The City, at its option, may choose
conditions as shall appear in this Ordinance or the to supervise such tree trimming. Upon conclusion of
franchise agreement or license agreement. the tree trimming,the provider shall immediately clean
up and remove all debris.
6. Minimal Disruption. Construction,
maintenance and repair of the telecommunications 13. Curb Cuts. No provider shall make paving
facilities shall be conducted in such a manner as to cuts or curb cuts without the written consent of the
minimize any interference with or disruption of the Director of the Department of Transportation
City's Streets, traffic, residences, businesses and Services.
institutions. The provider shall at all times endeavor
to use trenchless technology in appropriate (F) Performance Bond.
circumstances.
1. Prior to the provision of service, the provider
7. Restoration. Any disturbance of the city's shall post a performance bond, satisfactory to the
Streets shall be repaired and restored by the City, in the City's favor to ensure faithful performance
telecommunications provider or lessee at its expense of the terms and provisions of the franchise
and to a condition at least as good as that prevailing agreement and any planned construction as
before the work causing such disturbance was designated to the construction plan the provider has
commenced. filed with the City pursuant to Section (E)(2). The
bond shall be equivalent to ten percent (10%) of the
S. Location of Facilities. New poles and other total cost of the construction as provided in the
new facilities shall be located to the extent feasible in construction plan, or $25,000.00, whichever is
such a way as to minimize their effect on the visual greater.
landscape and on other aesthetic considerations and
so as to minimize inconvenience. 2. In the event the provider fails to comply with
the U.D.C. or to complete the construction in a safe,
9. Burial of Transmission Lines. A timely, and competent manner, after notice and a
telecommunications provider shall place its reasonable opportunity to cure, the City may recover,
transmission line or other facilities underground where jointly and severally from the principal and surety of
feasible and desirable from an aesthetic perspective. the bond,any damages or loss suffered by the City as
a result, including the full amount of any
10. Co-location: Sharing of Pole Space. To compensation, indemnification or cost of removal or
the maximum extent feasible, a telecommunications abandonment or any property of the provider, plus a
reasonable allowance for attorneys'fees, up to the full H. Removal.
amount of the bond.
1. Within thirty (30) days following written
3. The City in its sole discretion may waive this notice from the City, any telecommunications
requirement of a bond upon provider demonstrating provider or other person that owns, controls or
sufficient financial resources or upon good cause maintains any obsolete or unusable
shown to the Director of the Department of telecommunications facility or related appurtenances
Transportation services. that the City determines is a visual blight or nuisance
to the public on, in, under or above the Streets shall,
G. Fees. at its own expense, remove such facilities and
appurtenances form the Streets.
Amount. In consideration of the City's grant of
authority to utilize the City's Streets for the provision 2. A telecommunications facility need not be
or lease of telecommunications services, the removed if renovation or restoration is planned within
telecommunications provider or lessee shall pay a a reasonable period of time by the
franchise fee to the City in the following amounts: telecommunications franchisee or licensee or if the
telecommunications facility is being utilized for
1. In the City. A telecommunications provider telecommunications services. In such case, prompt
or lessee who provides service to residents, written notice shall b provided to City specifying why
businesses or institutions in the City shall pay monthly such telecommunications should not be removed and
an amount equal of four percent (4%) of its Gross the specific time frame, if applicable, for any planned
Revenues within the corporate limits of the City during renovations or restoration.
the preceding month.
I. Transfer; Transfer of Control.
2. Outside the City. A telecommunications
provider who provides service solely to persons A grantee or transferee of a telecommunications
outside the geographic boundaries of the City by provider or licensee shall notify, at the same time it
utilizing a transmission line that uses City right-of-way applies to the Arkansas Public Service Commission
or streets shall pay the City a reasonable annual fee for a transfer or change of control, the City of
based upon an installation fee and charge per linear Fayetteville of: 1) its intent to be a
feet of transmission line that traverses the City or telecommunications provider or licensee; 2) its intent
based upon such other method as the City deems to comply with §110.02 Telecommunication
appropriate. Such a fee may be paid in a lump sum in Franchises; 3) its intent to promptly provide such
advance or in a combination of a lump sum plus information pertinent to the proposed transaction as
annual payment as the City deems fit; may reasonably be required by the City.
3. Calculation of Payments. All payments J. Existing Telecommunications Providers.
made to the City shall be accompanied by a
statement certified as true by an appropriate A telecommunications provider delivering service
employee of the provider or lessee explaining the in the City as of January 1, 2011, such as AT&T and
basis of the calculation on which the payment was the Prairie Grove Telephone Company need not apply
made. for a franchise and are deemed to hold a franchise in
conformity with §110.02. All previous franchise
4. Audit. Upon reasonable notice, the City shall ordinances are deemed superseded by this code
have the right to inspect and copy the section so that all existing or new telecommunication
telecommunications provider's or lessee's books and companies in Fayetteville must comply with all of the
records that are reasonable necessary for the City to terms of§110.02 upon its effective date.
determine compliance with Section G. 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.
5. Fees not a Tax. Unless otherwise
inconsistent with applicable law, the fees provided in
this Section G 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 form 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.
AGENDA REQUEST
FOR: COUNCIL MEETING OF MAY 3, 2011
FROM:
KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An Ordinance To Amend Ordinance No. 2990 Of March 6, 1984 To Acknowledge That Some
Fayetteville Citizens And Businesses Are Now Within The Prairie Grove Telephone Company
Franchise Area And To Apply The Same Franchise Fee To Both Telephone Companies, To
Amend Ordinance No. 4278 Of November 21, 2000 And To Codify These Combined
Ordinances
APPROVED FOR AGENDA:
a.
City Attorney Date
Finance Director Date
Chief of Staff Date
ayorjoidan Date
I IP04 =42 KCVD
t�
TayreeLvIIIIe Departmental Correspondence d7L
LEGAL
essfayetteville.org DEPARTMENT—
Kit Williams
CityAttorney
TO: Mayor Jordan Jason B.Kelley
y Assistant City Attorney
City Council
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director }
FROM: Kit Williams, City Attorney
DATE: March 10, 2011
RE: Applying a uniform franchise fee for all telephone companies providing
basic local exchange service to Fayetteville residents and businesses
For most of Fayetteville's history, we have been served by a single
telephone company, Southwestern Bell (now AT&T). Recently, however, our
westward annexations extended our corporate limits into the Prairie Grove
Telephone Company's service area. Therefore, to ensure equal treatment, we need
to pass an ordinance requiring the same 4% franchise fee from the Prairie Grove
Telephone Company serving Fayetteville customers as we do for AT&T which
serves the vast majority of Fayetteville customers.
A.C.A. §14-200-101 in the Municipal Authority Over Utilities chapter of
the Arkansas Code authorizes the City Council to impose a franchise fee of up to
4 t/a%. Since 1984, the City has charged 4% which now should be extended to the
Prairie Grove Telephone Company which we believe is now serving slightly less
than 100 customers within Fayetteville. That way all citizens and businesses in
Fayetteville will be treated equally.
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ORDINANCE NO.
AN ORDINANCE TO AMEND ORDINANCE NO. 2990 OF MARCH 6, 1984
TO ACKNOWLEDGE THAT SOME FAYETTEVILLE CITIZENS AND
BUSINESSES ARE NOW WITHIN THE PRAIRIE GROVE TELEPHONE
COMPANY FRANCHISE AREA AND TO APPLY THE SAME FRANCHISE
FEE TO BOTH TELEPHONE COMPANIES, TO AMEND ORDINANCE NO.
4278 OF NOVEMBER 21, 2000 AND TO CODIFY THESE COMBINED
ORDINANCES
WHEREAS, the Fayetteville Board of Directors passed Ordinance No. 2892 on February
15, 1983 authorizing Southwestern Bell Telephone Company and its successors to continue to
operate in Fayetteville and use our public rights-of-way for its lines and charged a franchise fee
for such usage; and
WHEREAS, the Fayetteville Board of Directors passed Ordinance No. 2990 on March 6,
1984, which amended the first two sections of Ordinance No. 2892 and specified a franchise rate
of four percent (4%); and
WHEREAS, on November 21, 2000, the Fayetteville City Council passed Ordinance No.
4278, an eighteen page, complex telecommunications franchise fee application ordinance which
also set the franchise fee at four percent(4%); and
WHEREAS, after the City of Fayetteville's western annexation, our city limits extended
into the Prairie Grove Telephone Company's authorized service area such that we need to
authorize its use of our rights-of-way and establish an identical franchise rate of four percent
(4%)for telephone services provided to those Fayetteville citizens and businesses.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends
Ordinance No. 2990 by deleting the first sentence of its Section 1 and enacting a replacement
sentence as follows:
"Section 1: AT&T and the Prairie Grove Telephone Company and
their successors and assigns are authorized to continue to operate their
telephone businesses and all businesses incidental to or connected with
the conducting of a telephone business and system within the City of
Fayetteville, Arkansas."
All of the remaining language of Section 1 remains unchanged except references to a singular
telephone company will now relate to both telephone companies.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby repeals
Ordinance No. 4278, but enacts substantial portions of it in the renamed Chapter 110:
Telecommunication Franchises and Billposting as shown on Exhibit A attached.
PASSED and APPROVED this 3rd day of May, 2011.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
EXHIBIT "A"
CHAPTER 110: TELECOMMUNICATION FRANCHISES AND BILLPOSTING
110.01 Billposting telecommunications provider or telecommunications
lessee and located in, under or over the Streets of the
(A) The posting of any bills, notices, or City and utilized in the provision of
advertisements of any kind whatever upon any telecommunications services.
electric light, telephone, or telegraph pole within the
limits of the city is hereby prohibited. "Telecommunications lessee" or "lessee" means
any person, firm, corporation, partnership, or other
(B) It shall be unlawful for any person to post, stick, business entity, including "resellers," that provides
paint or otherwise attach (or cause to be posted, telecommunications services within the geographic
stuck, painted, or caused to be otherwise attached) boundaries of Fayetteville, including long-distance
any bill sign, notice, poster, or othgr advertisement to services that originate or terminate in the City, but
any building, fence, wall, vehicles, or other property, utilizing, purchasing or leasing a telecommunications
public or private, without first having obtained facility of a telecommunications provider or any
permission from the owner of such property. element thereof, whether through purchase, lease,
contract, interconnection agreement, or other
(Code 1965, §§13-2, 13-3; Ord. No. 241, 9-11-1908; Ord. business arrangement; provided that a person that
No. 3773,§1,4-5-94;Code 1991,§110.01) owns its own telecommunications facilities in the City
and utilizes, purchases or leases telecommunications
110.02 Telecommunication Franchises facilities or elements thereof of other
telecommunications providers in the City shall be
(A) Definitions. As used in §110.02 the following classified as a telecommunications provider under the
terms of this section.
terms shall have the meanings set out:
"Telecommunications provider' or "provider'
"Applicant" means a telecommunications provider means any person, firm, corporation, partnership or
or telecommunications lessee that applies for a other business entity, other than the City of
franchise or license pursuant to this section. Fayetteville, that provides telecommunications
services within or without the geographic boundaries
"Franchise fee" means compensation paid to the of the City by utilizing its own telecommunications
City by the telecommunications provider or lessee in facilities to provide telecommunications services.
exchange for the use of the City's streets to deliver
telecommunications services "Telecommunications services" or "services"
"Gross revenues" means all revenues from basic means any service delivering telecommunications by
local service, excluding, among other things, a telecommunications provider or lessee that the
provider or lessee is authorized to provide under
extension, terminal equipment, toll, access, yellow federal, state and local law, except that these terms
pages, and other miscellaneous equipment revenues do not include"cable service"as defined by the Cable
pursuant to Arkansas Code Ann. §14-200-101. Communications Policy Act of 1984, as amended by
"Person" means an individual, resident, citizens, the Cable television Consumer Protection and
y Competition Act of 1992, 47 U.S.C. §521 et seq., the
business firm, corporation, partnership, governmental Telecommunications Act of 1996, and subsequent
agency,or institution. acts.
"Streets" means all streets, roads, highways, "Transmission line" means a telecommunications
alleys, rights-of-way, public utility easements, public facility that is used solely for the purpose of
property, public ways and air space over such streets, transmitting signals from one point to another point
roads, alleys, public rights-of-way, public utility and does not include a line for the purpose of
easements, public property and public ways located delivering telecommunications services to any person
within the geographic limits of Fayetteville. in Fayetteville.
"Telecommunications" means the transmission, (B) Requirement of City's Consent.
between or among points specified by the user, of
information of the users choosing without change in Every telecommunications provider and
the form or content of the information sent and
received. telecommunications lessee that utilize a
telecommunications facility must obtain a franchise or
"Telecommunications facilities" or "facilities" license from the City in accordance with §110.02 in
means all conduits, manholes, poles, antennas, order to provide telecommunications services. Prior
transceivers, wires, cable (including fiber optic cable) to providing any telecommunications facility, or
and appurtenances owned or utilized by a utilizing any telecommunications facility, the provider
or lessee must agree in writing to comply with the
terms and conditions of this section and enter into a
franchise agreement or license agreement.
(C) Application Process.
Any telecommunications provider or lessee (who
has not yet been awarded a franchise such as AT&T
and the Prairie Grove Telephone Company) seeking
to utilize the Streets to provide telecommunications
service shall complete a brief application form
approved by the Department of Transportation
Services. Such application form shall briefly describe
the general nature of the service to be provided, the
type of construction or use of the 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.
1. 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.
2. 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 or disruption, if any, of public
or private facilities, improvements, or landscaping if a
franchise or license is granted;
D 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;
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.
(D) Franchise or License Agreement.
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.
2. The franchise agreement or license
agreement shall contain such additional terms and
conditions as are not in conflict with the terms of this
section as may be necessary and appropriate for the
particular circumstances of the provider or lessee and
its delivery of telecommunications services.
(E) Construction Maintenance.
1. Construction Application. Prior to the
beginning construction, excluding routine
maintenance or emergency repair, of any
telecommunications facility, the Telecommunications
Company shall apply to the Department of
Transportation Services of the City for permission to
carry out construction activities in the City's Streets,
ands shall comply with all requirements of that
department and all applicable ordinances or code
sections.
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 construction 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;
e) Such other information as well provide
the City with pertinent information relating to the
construction of the telecommunications facilities,
including any pertinent information requested by the
City.
3. Prior Authority. Prior to beginning
construction, the Applicant shall have received all
necessary regulatory authority to construction a
telecommunications facility or provide
telecommunications service from the Arkansas Public
Utilities Commission, the Federal Communications
Commission, or other appropriate state or federal
agency. Evidence that it has received such regulatory
authority shall be filed with the City.
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 conditions 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, upon thirty (30) days advance written
notice, at its own cost and expense, promptly correct
all such conditions.
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 section or the
franchise agreement or license agreement.
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 endeavor
to use trenchless technology in appropriate
circumstances.
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 at least as good as that prevailing
before the work causing such disturbance was
commenced.
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.
9. Burial of Transmission Lines. A
telecommunications provider shall place its
transmission line or other facilities underground where
feasible and desirable from an aesthetic perspective.
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 existing facilities or place its facilities
underground. The owner of any existing 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.
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.
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 at least 24 hours'
notice to the Fayetteville Urban Forester. 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.
13. Curb Cuts. No provider shall make paving
cuts or curb cuts without the written consent of the
Director of the Department of Transportation
Services.
(F) Performance Bond.
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 to the construction plan the provider has
filed with the City pursuant to Section (E)(2). The
bond shall be equivalent to ten percent (10%) of the
total cost of the construction as provided in the
construction plan, or $25,000.00, whichever is
greater.
2. In the event the provider fails to comply with
the U.D.C. 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 or any property of the provider, plus a
reasonable allowance for attorneys' fees, up to the full
amount of the bond.
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
Transportation services.
(G) Fees.
In consideration of the City's grant of authority to
utilize the City's Streets for the provision or lease of
telecommunications services, the telecommunications
provider or lessee shall pay a franchise fee to the City
in the following amounts:
1. A telecommunications provider or lessee who
provides service to residents, businesses or
institutions in Fayetteville shall pay monthly an
amount equal of four percent (4%) of its Gross
Revenues within the corporate limits of the City during
the preceding month.
2. A telecommunications provider who provides
service solely to persons outside the geographic
boundaries of the City by utilizing a transmission line
that uses City right-of-way or Streets shall pay the
City a reasonable annual fee based upon an
installation fee and charge per linear feet 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 or monthly payments as the City deems fit;
3. 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.
4. Audit. Upon reasonable notice, the City shall
have the right to inspect and copy the
telecommunications provider's or lessee's books and
records that are reasonable necessary for the City to
determine compliance with this subsection. 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.
5. Fees not a Tax. Unless otherwise
inconsistent with applicable law, the fees provided in
this subsection 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.
(H) Removal.
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 the City determines is 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 form the Streets.
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 b provided to City specifying why
such telecommunications should not be removed and
the specific time frame, if applicable, for any planned
renovations or restoration.
(1) Transfer; Transfer of Control.
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
Fayetteville of: 1) its intent to be a
telecommunications provider or licensee within
Fayetteville; 2) its intent to comply with §110.02
Telecommunication Franchises, and; 3) its intent to
promptly provide such information pertinent to the
proposed transaction as may reasonably be required
by the City.
(J) Existing Telecommunications Providers.
As telecommunications providers delivering
service within Fayetteville as of January 1, 2011,
AT&T and the Prairie Grove Telephone Company
need not apply for a franchise and are deemed to
currently hold a franchise in conformity with §110.02.
All previous telecommunication franchise ordinances
are deemed superseded by this code section so that
all existing or new telecommunication companies in
Fayetteville must comply with all of the terms of
§110.02 upon its effective date.
ORDINANCE J& 2&
AN ORDINANCE AMENDING ORDINANCE 90. 2892 TO AMEND THE
TERMS AND CONDITIONS UNDER WHICH SOUTHWESTERN BELL
TELEPHONE COMPANY SHALL CONTINUE TO OPERATE ITS
TELEPHONE SYSTEM WITHIN THE CITY OF FAYETTEVILLE,
ARKANSAS, AND TO AMEND THE AMOUNT OF THE ANNUAL
PAYMENT MADE BY THE TELEPHONE COMPANY TO THE CITY.
BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF
FAYETTEVILLE, ARKANSAS: 92
Section 1. That Section 1 of Ordinance No.2=_is
hereby amended to read as follows: n
C 7
Section 1. The Southwestern Bell Telepho£i@.
Company, its successors and assigns (herein o
referred to as "telephone company") shall coAirfhue
to operate its telephone business and all business
incidental to or connected with the conducting:6f,
a telephone business and system in the City of
Fayetteville, Arkansas, (herein referred to as
"city"). The plant construction and appurtenances
used in or incidental to the giving of telephone
service and to the maintenance of a telephone
business and system by.the telephone company and
said city shall remain as now constructed, subject
to such changes as may be considered necessary by
the telephone company in the conduct of its
business and said telephone company shall continue
to exercise its right to place, remove, construct
and reconstruct, extend and maintain its said
plant and appurtenances as the business and purpose
for which it is or may be incorporated may from
time to time require, along, across, on, over,
through, above and under all the public streets,
avenues, roads,'highways and alleys within the
limits of said city as the same from time to time
may be established; provided, said streets, avenues,
roads, highways and alleys, as now laid out or as
hereafter established, shall not be obstructed
thereby, and the telephone company, at the telephone
company's own expense, shall relocate its facilities
upon written request from the city to remove or
prevent any such obstruction.
Section 2. That Section 2 of Ordinance No. 2892 is
hereby amen ed to read as follows:
1103 654
Section 2. Beginning in 1984, the telephone
company shall pay to the city for the period January 1,
1984, through December 31, 1984, inclusive, and there-
after for like periods an amount equal to 48 of the
access line billing within the corporate limits during
the preceeding year, or $137,048, whichever is greater.
Payments shall be in equal quarterly installments on
or before the last day of March, June, September and
December of each -year.
Section 3. The telephone company shall have ninety
(90) days from and after the passage and approval of this
ordinance to file its written acceptance of this ordinance
with the city clerk, and upon such acceptance being filed,
this ordinance shall be considered as taking effect and
being in force from and after the date of its passage and
approval by the mayor.
PASSED AND APPROVED this 6th day of
1984.
: APPROVED:
Mayor
yys�
BY•
C ty Clerk
CERTIFICATE OF RECORD_
March
STATE OF ARKANSAS )
SS.
Washington County
I, Alma L. Ko!I mayer, Circuit Clark and Ex-Offldo Recorder for.
Washington County, do hereby certify that the annexed o fore.
goinginstrumentwasfile forrecordinmytD�fficeonth ay.
of f- 1Xn TArclockN. and thesame Id_A
duly recorded Inys. \
Witness my hand and
Circuit Clerk and
1103 600
1: 3
ACCEPTANCE
WHEREAS; the City Council of the City of Fayetteville of Washington
County, Arkansas, did on the 6th day of March A.D. 19 84 , enact
an ordinance entitled: 2990
and
AN ORDINANCE AMENDING ORDINANCE No. 2892 TO AMEND THE TERMS AND CONDITIONS
UNDER WHICH SOUTHWESTERN BELL TELEPHONE COMPANY SHALL CONTIWE TO OPERATE
ITS TELEPHONE SYSTEM WITHIN THE CITY OF FAYETTEVILLE, ARKANSAS, AND TO AMEND
THE AMOUNT OF THE ANNUAL PAYMENT MADE BY THE TLEPHONE COMPANY TO THE CITY.
WHEREAS, said ordinance was on the 6th day of March A.D.
1984 , duly approved and signed by the Mayor of said City and the seal of
said City thereto affixed and attested by the City Clerk:
NOW; THEREFORE; in compliance with the terms of said ordinance so enacted,
approved and attested, the Southwestern Bell Telephone Company hereby accepts
said ordinance and files this its written acceptance with the City Clerk of said
City in his said office.
Dated this 3rd
Approved:
day of MaY , 19 84
SOUTHWESTERN BELL TELEPHONE COMPANY
rney President —Arkansas Division 1�
Accept//ante filed in the office of the City Clerk of
This �6{ day of A.D. 19ff
4 �✓
/ City elPrk
ORDINANCE NO. 4278
AN ORDINANCE PROVIDING FOR THE MANAGEMENT AND
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) of the 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
Page 2
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 terms shall have
the meanings set out:
2.1. "Applicant" means a telecommunications provider or telecommunications lessee
that applies fora franchise
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.
Page 3
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 defried 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 .,rom the City in accoruarcz�
with this Ordinance in order to provide telecommunications services. Prior to providing any
telecommunications facility, or utilizing any telecomnunications 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.
Page 4
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 alsc, rcvidcce':: i ;- ;a:ia:ac,ory to the Ci y 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) thedamageordisruption,ifany,ofpubiicorprivatefacilities, improvements,
or landscaping if a franchise or license is granted;
the public interest in minimizing the cost end aisrirnor, oFoonstruction in,
on, under and above the Streets;
g) the effect of public health. safer ^r .v-i,jr i Franchise or license is
granted;
Page 5
Ordinance No. 427g
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. Atelecommunit cations
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 iessee and its
delivery of telecommunications services.
Page 6
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 ofthe City forpermission 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 orutilized;
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
ronarit�.,n nc< of =v: ct�no iar�l+�i.+c
d) The timetable for completion of construction, including any phases of
construction;
e) 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 .krkansas Public Gtilities Commission, the
Page 7
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 dangerto thepublic 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 holes 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 olace 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 ma.x:mum extent feasible, a
telecommunications provider constructing a new transmission line or other facility, or
expanding an existing line or facility, shall utilize Cacilities. Tlie owner of any existing
Page 8
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 o f 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 Tom. 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 shall
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,
demfication, or cost of removal or
abandonment of any property of the provider, plus a reasonable ailow ante for attorneys' fees,
up to the full amount of the bond.
Page 9
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 ana
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;
e) A telecommunications lessee who delivers telecommunications services shall
pay the Cityfour percent (4%) of its annual Gross Revenues derived from the
delivery of telecommunications service within the Citv
10.2. Public Interest Obligations. If, as a condition of the ;rant of a franchise or a
Page 10
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 Pam. 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 he
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 sucii 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 taw.
Page 11
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 Ind ampioyees (collectively the "Indemnified ?arties''j Sctn
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 anyway 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 'void 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 Maims 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, :.ommissions, 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 ueeligent act or omission.
Page i2
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;
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 Cit•.
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 is anchise 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 Pnce Index iad cons.uMrs; 'or suer three (3) year
period.
Page 13
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 telecommutications 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;
Page 14
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. As a 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
Page 15
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.L 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 ofthe 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.
Page 18
Ordinance No. 4278
20.5. Severabilitv. 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:
Fred Hanna, Mayor
ATTEST:
By:
Heather Woodruff, City Clerk
FAYETTEVILLE CODE OF ORDINANCES
TITLE XI BUSINESS REGULATIONS
CHAPTER 110: ADVERTISING*
110.01 Billposting
(A) The posting of any bills, notices, or
advertisements of any kind whatever upon any
electric light, telephone, or telegraph pole within
the limits of the city is hereby prohibited.
(B) It shall be unlawful for any person to post, stick,
paint, or otherwise attach (or cause to be posted,
stuck, painted, or caused to be otherwise
attached) any bill sign, notice, poster, or other
advertisement to any building, fence, wall,
vehicles, or other property, public or private,
without first having obtained permission from the
owner of such property.
(Code 1965, §§13-2, 13-3; Ord. No. 241, 9-11-1908; Ord.
No. 3773, §1, 4-5-94; Code 1991. §110.01)
Cross reference(s)--Penalty, §10.99, Use of Radios,
Loudspeakers, etc., §96.06; Advertising Prohibited in Parks,
§97.087; Marking or Painting Advertising Matter on
Sidewalks, §98,05,
110.02-110.99 Reserved
CD110:3
NORTHWEST ARKANSAS
NEWSPAPERSLLc
Northwest Arkansas Democrat Gazette
The Morning News of Springdale
The Morning News of Rogers
Northwest Arkansas Times
Benton County Daily Record
212 North East Avenue, Fayetteville Arkansas 727011 PO Box 1607, 72702
PHONE: 479-571-6421
AFFIDAVIT OF PUBLICATION
RECEIVED
MAY 2 5 P011
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
I, Cathy Wiles, do solemnly swear that I am Legal Clerk of the Northwest
Arkansas Newspapers LLC. Printed and published in Washington & Benton
County, (Lowell), Arkansas and that from my own personal knowledge
and reference to the files of said publication, the advertisement of: City
of Fayetteville- Ordinance 5406
Published May 19, 2011
Publication Charge : $ 110.25
Signed:,��j----
Subscribed and sworn to before me
This (9day of AQ1 , 2011.
Notary Public ___'��Ql�
My Commission Expires: 1)w))..Q
Do not pay from Affidavit, an invoice will be sent
ORDINANCE NO. 6405 1 1
rORDINANi
H 6.I AMEND ONCIIaANCE NO. 2gg0I LE CITIZENS AND Bi �* r/�vl Ae 6, t0B4 TOACWNOWIFDOTrIi YG WrOME �NITI t PR4ii GROVE TE E9� ONEY FfaANCHISE ARFA ANP TO Af'PLV TFIE
Afl%AHSflSANCNLSE FEE TO SOTH TLLEPHONFIEBTOAMEND ORGINANCENO4ple OF 14OYEMRER 21, 2010 AND TOHESE COMBINED ORDNANCE5S.IIB Fxyxlte,i,El n! Meelur9pass,, OejonrAN0, 20I1P un FdA.MN 1&.710114�,9 $,i1lnYesl,n Ren Te'Al a COmpanY axt ds S1+CCe9snrs l0 vN nl�Y.ro to
bP""T FByei[8hY6 "J 1. aw Iw=YiC PON$ el -Way for 0R 1in09 end Chmv-4 a frvV2YA9
NO la wr61, �gA: End
WHEREAS, the FaY911avnb Elo d nl 0lrectaa passad OI'J+nylae No. a
1984. WNhd need the flildt,,fldIiOIGa OrdinantA 12682 mtlSWIM a
rele of lw pen:er4 (i And
WHEREAS, a,-NWw9ne1 21, 2010. the layenwie G1y C.Ino iOrdiNoti NO
4270. an elghteeA Pi e,^Plas ieIBWInRIl1110atnna 1renrAW fae appli[aflal nrdslaw�
WNch g1, 4111,9 ftar li 1i 91 le" ppeolet(i
WHEREAS, eft, the Of, aI FayeitnalN's westwe muieml,en. ae city nmim e%tendad Into
pemiraGOoli Te{eplians Compam'sau[m"vvll aerate area such lrat We PW 10 a0i
aye A9 USC of r4hlil Py end eet9ia' iel, an Id.OtC l 1F4nGhlse'ale 01 fear
IefB1V1C,}3A Mli Mi in ti FeyaltAllle UlvI ns erxl W9[B es
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEMLLE, ARRANSAS'
SeC60n 1, that Me Gly Comw�l of the ay of FaYelteviNo, Arkansas hereby amends
Ortlmence N0. 2990 by tleleln0 1Im first sentence of its S9 n t en J "cling a mi
ine<neantenr, AAlA!7 ,, , and 11i"Cebsw9
"5c01im 1' wej" 9x1 the 10 " n" : l tepi one Ganpsr Y
0<id as9Me a¢ a,MoM 01 to tenuaue to i 0eraie thdr ta!op01 " W9fi� a aM I'
lwenasees Ire:xlenla in 0i cauv,acbx7 vn1h tea mndncllixl nt a tele(i,nrm tN,.gh,en.4
end sys,em sntn4n ine City W Fz,,AI0 iIQ Arkansas'
NI et the renwinlixJ Ianguaga 015aC1ia1 1 rerrtailss uriU,angerl a%C9A1 r91rr0nCes to a SlrkJn4ir
Ni pxOpH '8.0 ralete 10 Win mlePh" Cttalarreg.
Secllen 2. Thal ina Oily Cnuro M the Gly el FnyaOb flt, ArhN[ns lipeby Ey repeals
etebo munl aSlon Flan his oe d837pn�n8 es N1awna 6t Aala:JUi 110:
PASSED win APPROVED li &d day o ATTEST011
APPROVVEO:
Dy""' 9� ITN, aa
ONORA E. SM lY eiWfreasamr
LIONELD JOROAN, MRY¢r
E�hii for ihfs MdlrialrA may W Nii In 11e 01Ti i the Cily adYJ7rAea�JrLY