1515D411 1
ORDINANCE NO, 1515 (#08 -14)
AN ORDINANCE PROVIDING A FRANCHISE AGREEMENT FOR FIBER OPTIC
CABLE, DATA MANAGEMENT, DIGITAL INFORMATION SERVICES, AND
ELECTRONIC TRANSMISSION COMMUNICATIONS SERVICES WITHIN THE
CITY WITH WINDSTREAM COMMUNICATIONS; PROVIDING FOR
COMPENSATION THROUGH FRANCHISE FEES PAYABLE TO THE CITY; AND,
FOR OTHER PURPOSES,
Whereas, Windstream Communications has been providing fiber optic cable and
electronic transmission communication services to residents of Jacksonville since 2012,
despite failure to establish a proper Franchise with the City. To resolve Windstream's
oversight, the City wishes to approve a non-exclusive Franchise to allow Windstream to
legally provide fiber optic cable, data management, digital information services, electronic
transmission communication services, and telecommunication services in the City
pursuant to a Franchise Agreement.
NOW, THEREFORE, BEITORDAINEDBYTHECITYCOUNCIL OF THE CITY
OF JACKSONVILLE, ARKANSAS, THAT:
SECTION ONE: Windstream Communications and its subsidiaries
known as Windstream NuVox Arkansas, Inc., McLeodUSA Telecommunications Services,
L.L.C., PaeTec Communications, Inc., Valor Telecommunications of Texas, L.L.C.,
Windstream Arkansas, L.L.C., and Windstream Communications, Inc., their successors or
assigns, are hereby granted by City a non-exclusive right to construct, erect, operate,
upgrade, and maintain along, across, above, in, over, under, upon, the public utility
Rights -of -Way, now laid out, dedicated, and all extensions thereof and additions thereto in
the City, for purposes of installation, maintenance, and operation of a fiber optics cable
and communications system for transmission to business and residential customers cable,
communications, data, internet, networking services and systems, and telecommunication
services, together with subscriber interaction required for the selection and use of such
services. The right to use and occupy said public utility Rights -of -Way shall not be
exclusive, and City reserves the right to grant similar use of such Rights of Way to any
other person(s) and/or entity(ies) at any time during the period of this Franchise.
SECTION TWO; Windstream Communications agrees to pay City a Five
Percent (5%) annual Franchise Fee since installation of their lines and equipment in City
Rights of Way in 2012 and through the term of the franchise period in exchange for the
use and benefit of City's Rights -of -Way for their cable, digital communication, and
networking and data management systems. Said payments shall be calculated based on
all monies (Gross Revenues) received by Windstream from its fiber optics cable and
Ordinance No 1515 (#08 -14)
Page Two
communications system for transmission to business and residential customers' cable,
communications, data, internet, and networking services and systems, together with
subscriber interaction required for the selection and use of such services within the City.
SECTION THREE: Windstream Communications agrees to pay City a Four
and 25/100 Percent (4.25%) annual Franchise Fee since installation of their lines and
equipment in City Rights of Way in 2012 and through the term of the franchise period in
exchange for the use and benefit of City's Rights -of -Way for their telecommunication
services. Said payments shall be calculated based on all monies (Gross Revenues)
received by Windstream from its communications system for transmission to business and
residential customers' telecommunications services and systems, together with subscriber
interaction required for the selection and use of said services within the City.
SECTION FOUR; The term of this franchise shall be for a period up to
and including December 31, 2019, together with options to renew said franchise for Four
(4) periods of Five (5) years each at the discretion of City and Windstream. This franchise
may be renewed in accordance with proper procedures as contain in 47 USC § 546, which
is incorporated herein by reference, and the Mayor and City Clerk are hereby authorized to
execute a Franchise Agreement containing like terms and conditions after approval of the
City Attorney as to such form and terms.
SECTION FIVE: Windstream agrees to hold City harmless from any and
all liability occasioned by operation of its fiber optic cable and electronic transmission
communication services, and Windstream shall keep in force sufficient liability insurance
[minimum required policy protection — Two Million Dollars ($2,000,000.00)] or as is
reasonably necessary to protect both Windstream and City. Windstream shall keep on
file with the City Clerk a current coverage certificate from an "A" rated liability insurance
company licensed to do business in the State of Arkansas.
SECTION SIX: In providing its fiber optics cable and communications
system for transmission to business and residential customers cable, communications,
data, internet, and networking services and systems to the citizens of Jacksonville,
Windstream, nor its employees, agents, representatives, contracts, subcontracts, or
consultants, shall discriminate or permit discrimination between or among any persons in
the availability area of fiber optic cable, electronic transmission communication services,
and telecommunication services.
Ordinance No 1515 (#08 -14)
Page Three
SECTION SEVEN; In the event City grants a franchise to another similar
provider to operate and maintain a fiber optic cable and electronic transmission
communication system within City to deliver the same or similar services to subscribers'
businesses and/or homes, that or any other provider will be subject to the same or similar
burdens, prerequisites, or obligations as are imposed on Windstream by local, state, and
federal laws.
SECTION EIGHT,• If, in City's judgment, Windstream is or may be in
violation or breach of any term or conditions of this Ordinance or the accompanying
Franchise Agreement pursuant hereto, City shall notify Windstream of the suspected
violation or breach. Upon notification, Windstream shall supply to City within Thirty (30)
days all applicable information and documentation as requested with respect to the
suspected breach or violation, together with such statement as it wishes in an effort to
explain or mitigate the violation or breach.
Should City not be satisfied with the information, documentation, or explanations of
Windstream, it may make a finding of a breach or violation and notify the provider of such
a finding. Thereafter, Windstream shall have a reasonable period of time (the "Cure
Period') as determined by City to take such steps as are necessary to cure the violation or
breach. If, at the breach violation of this Ordinance or Franchise Agreement pursuant
hereto, City shall schedule a hearing before the City Council for the purpose of making a
final determination as to whether a violation or breach exists. At the hearing,
Windstream or its representatives, the City, and/or members of the public may present
evidence relevant to the alleged violation or breach.
To the extent not inconsistent with State or Federal law, at the conclusion of the
hearing regarding this matter and appropriate deliberation thereof, the City Council shall
take such steps as deemed appropriate. Those steps may include, but are not limited by,
the follow:
a) Pursuing any of the remedies available to it as provided by this
Ordinance or the Franchise Agreement;
b) Directing the provider to take such steps as are necessary to cure the
violation or breach within a reasonable period or face forfeiture;
and/or,
c) Declaring a forfeiture of the Franchise and ordering the provider to
take such steps as are consistent or required by local, State, and/or
Federal law.
Ordinance No 1515 (#08 -14)
Page Four
SECTION NINE,• Should any section, clause, or provision of this
Ordinance or the Franchise Agreement pursuant thereto be declared invalid by a Court of
competent jurisdiction, such a ruling shall not affect the validity of the Ordinance as a
whole or any part thereof, other than the part so declared invalid.
SECTION TEN: This Ordinance shall take effect from after its date of
passage, pursuant to and under the authority of applicable law.
APPROVED AND ADOPTED THIS l At DA Y OFAUGUST, 2014.
CITY OFJACKSONVILLE, ARKANSAS