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164871 ORDINANCE NO. 16,487 531 2 3 4 AN ORDINANCE TO GRANT TO THE HOUSING 5 AUTHORITY OF THE CITY OF LITTLE 6 ROCK, ARKANSAS THE EXCLUSIVE 7 FRANCHISE, RIGHT AND PRIVILEGE TO 8 CONTROL, SUPERVISE AND OTHERWISE 9 EXERCISE JURISDICTION OVER THE 10 STREETS, ALLEYS, PUBLIC WAYS AND 11 PUBLIC PLACES NOW LAID OUT OR 12 DEDICATED, AND ALL EXTENSIONS 13 THEREOF, AND ADDITIONS THERETO, 14 LYING WITHIN PROJECTS AND PROPERTIES 15 OWNED AND OPERATED BY THE HOUSING 16 AUTHORITY OF THE CITY OF LITTLE 17 ROCK, ARKANSAS; FOR AN EMERGENCY 18 AND FOR OTHER PURPOSES. 19 20 WHEREAS, the City of Little Rock owns all rights -of -way 21 which traverse the properties owned and maintained by the Little 22 Rock Housing Authority; and 23 WHEREAS, in recent years, the City rights -of -way are at 24 times a gathering place for loitering and drug dealing. 25 WHEREAS, the legal status of the City rights -of -way have 26 made it difficult for the Little Rock Housing Authority to 27 exercise jurisdiction over the City rights -of -way within the 28 Housing Authority projects; and 29 WHEREAS, it is imperative that the Housing Authority gain 30 legal jurisdiction of said rights -of -way in order to maintain 31 effective control over the operation and maintenance of its 32 property; and 33 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF 34 THE CITY OF LITTLE ROCK: 35 SECTION 1. That the exclusive franchise, right and 36 privilege is hereby granted to the Housing Authority of the City OV7 FS 0 532 1 of Little Rock, Arkansas to control, supervise and otherwise 2 exercise jurisdiction over the streets, alleys, public ways and 3 public places now laid out or dedicated, and all extensions 4 thereof, and additions thereto lying within projects and 5 properties owned and operated by the Housing Authority of the 6 City of Little Rock, Arkansas. Said projects and properties are 7 described in a Dedication Deed filed November 19, 1929, Pulaski 8 Country Instrument No. 29 -55006 and Plat Book A -336 to A -343 in 9 the office of the Circuit Clerk of Pulaski County, Arkansas and 10 adopted by this ordinance. 11 Upon the condition that within sixty days after the date of 12 the passage of this ordinance, the grantee shall file with the 13 City Clerk its unconditional acceptance of this franchise and 14 promise to comply with and abide by its provisions, terms and 15 conditions. Such acceptance and promise shall be in writing duly 16 executed and sworn to, by or on behalf of the grantee before a 17 notary public or other officer authorized by law to administer 18 oaths, provided, however, that should the grantee fail to 19 provide with the latter prescribed filing of acceptance, the 20 grantee shall acquire no rights, privileges, or authority under 21 this exclusive franchises, whatever; further, the grantee shall 22 enter into a contract with the City in substantially the 23 following form: 24 This contract, made this day of 1993, 25 by and between the City of Little Rock, a municipal corporation 26 of the State of Arkansas, hereinafter referred to as "City", and 27 the Housing Authority of the City of Little Rock, Arkansas, 28 hereinafter referred to as "grantee "; 29 WITNESSETH That for and in consideration of the mutual undertaking of 30 31 the parties to this contract, the City and the grantee hereby 32 covenant and agree each with the other as follows: 33 1• Purpose. The purpose of this ordinance is to provide for 34 the grantee an exclusive franchise to control the City 35 36 [2] 533 • � 1 rights -of -way that traverse on and through properties which are 2 owned and operated by the grantee. 3 2. Definitions. 4 A. City Manager means the City Manager of Little Rock or its duly authorized representative. 5 6 B. City means the City of Little Rock; C. Board means the Board of Directors of the City 7 8 of Little Rock; D. Franchise means and includes any authorization 9 granted hereunder in terms of a franchise, 10 privilege, permit, license or otherwise to 11 obtain the exclusive jurisdiction over City 12 rights -of -way described herein. 13 E. Grantee means the person, firm or corporation to 14 whom or to which a franchise is granted by the 15 Board under this ordinance, or anyone who 16 succeeds said person, firm or corporation in 17 accordance with the provisions of this 18 franchise. 19 F. Streets means the surface space of streets, 20 avenues, highways, boulevards, bridges, tunnels, 21 alleys, public places, and any other 22 rights -of -way and easements within or belonging 23 to the City, and which lie within or adjacent to 24 properties owned and operated by the grantee, 25 and as further described herein. 26 3. Franchise required; duration; exclusivity. 2 7 7 A. The City shall require an exclusive franchise 2 for the jurisdiction of the streets so described 29 herein for the operation and control by the 30 grantee. No such rights shall be allowed without 31 a franchise. 32 B. The franchise shall be granted for a term of 15 33 years; thereafter the franchise may be renewed 34 35 36 [3) 33 promote the safety of the public using the 34 streets, alleys and other public places by the 35 36 (4] 534 M i • 0 1 f for terms of 10 years as provided in section 10 2 h hereof. 3 C C. T The franchise, rights and privileges herein 4 g granted are exclusive. 5 4 4. Use o of the streets. 6 A A. T The grantee shall have the right to exercise 7 c control over access to and use of the streets of 8 t the City, as described herein, as if the grantee 9 w was the owner in fee simple of all such streets. 10 B B. N Nothing in this section shall be construed to 11 r relieve the grantee from its obligation to pay 12 a any fees or rents for its use of the streets and facilities of the City, utility companies, or 13 f 14 o other legal entities. C. T The grantees shall not erect or install, move, 15 C alter, or change the location of any pole, 16 a tower, wire, conduit, subway, line, manhole, 17 t cable or equipment in any street, alley or other 18 c public place of the City or dig, cut or disturb 19 p any street, alley or other public place of the 20 a City unless prior written notice of its 21 C intention to do so is given to such department 22 i or agency of the City as shall have been or may 23 o be designated by the City Manager, or the Board 24 b of the City and permission in writing to do so 25 o is granted by such department or agency or such 26 i requirement is waived by such department or 27 r agency. Such permission shall be conditioned 28 a upon compliance with the terms, conditions, 29 u provisions and limitations of this franchise and 30 p with such other terms, provisions, conditions 31 w and limitations as will preserve, protect and 32 534 M i 0 r 535 1 City or by any other public utility or public 2 service corporation for their respective 3 purposes and functions. Such permission shall 4 also be conditioned upon such terms, conditions, 5 provisions and limitations as will preserve, 6 protect and promote the health, safety and 7 general welfare of the City, and its citizens 8 subject to the lawful exercise of the police 9 power. D. In the event the relocation, construction, 10 11 reconstruction, maintenance or repair by the 12 City of any of its streets, facilities or 13 services now or hereafter acquired and subject to this franchise, and including, but not 14 limited to, any street, alley or other public 15 16 place, sewer, electric, water, fire alarm, emergency communication or any part thereof, or 17 in the event access to any street, alley or 18 other public place to or from any property of 19 the City is required, and it is necessary to 20 move, alter or relocate, either permanently or 21 temporarily, any of the grantee's property or 22 equipment or any part thereof in the public 23 right -of -way in order for the City to relocate, 24 construct, reconstruct, maintain or repair any 25 such facility, service, street, alley or other 26 public place or in any such sewer or electric, 27 water, fire alarm, police communication or any 28 part thereof, or to obtain access to or from 29 such property, upon notice from the City, the 30 grantee will move, alter or relocate such 31 property or equipment, at its own costs and 32 expense; and should the grantee fail, refuse or 33 neglect to comply with such notice, such 34 35 36 153 • 0 1 property or equipment or part thereof may be 2 removed, altered or relocated by the City at the 3 cost of the grantee and the City shall not be 4 liable to the grantee for damages resulting from 5 such removal, alteration or relocation. 6 E. It is the intent of Grantee and the City that no 7 barriers will be erected that will endanger the 8 health, safety and general welfare of the 9 inhabitants of the projects. 10 S. Franchise fee. The grantee shall pay to the City in 11 consideration for the granting of the exclusive franchise to 12 use and control the public ways subject to the franchise, an 13 annual payment in lieu of taxes (PILOT). 14 The City shall use the franchise fee payments to assist 15 in funding the maintenance of the rights -of -way, the 16 responsibility for which has been retained herein by the 17 City. 18 6. Liability for damages. 19 A. The grantee shall pay and, by its acceptance of 20 this franchise, the grantee specifically agrees 21 that it will pay all damages and penalties which 22 the City may legally be required to pay as a 23 result of granting this exclusive franchise. 24 B. The grantee shall pay and, by its acceptance of 25 this franchise, the grantee specifically agrees 26 that it will pay all expenses incurred by the 27 City in defending itself with regard to all 28 damages and penalties mentioned in paragraph A 29 above. These expenses shall include all out of 30 pocket expenses, such as attorneys fees, and 31 shall also include the reasonable value of any 32 services rendered by the City Attorney or his 33 assistants or any City employee. 34 C. The grantee shall file with the City Clerk the 35 36 [61 536 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 7. insurance policies required by this section and evidence of payment of required premiums on or before the time of the execution of the franchise agreement and thereafter maintained in full force for the full time of the franchise and in effect at all times, at the expense of the grantee, a comprehensive liability insurance policy with the City of Little Rock named as an insured, written by a company authorized to do business in the State of Arkansas, in a form approved by the City Attorney, protecting the City against liability for loss, for personal injury and property damaged occasioned by the right conferred to the grantee, by this franchise, in the following minimum amounts: 1. $250,000 for property damage to any one person; 2. $500,000 for property damage in any one accident; 3. $500,000 for any personal injuries to any one person; 4. $1,000,000 for personal injuries in any one accident; 5. $1,000,000 for all other types of liability. Transfer of franchise: A. The exclusive franchise granted under this ordinance shall be a privilege to be held in personal trust by the grantee. It shall not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, merger, consolidation or otherwise or by forced or involuntary sale, without prior consent of the Board expressed by ordinance and then on only such conditions as may therein be prescribed. (71 537 M = = M = M M M M = = i 0 0 1 The City is hereby empowered to take legal or 2 equitable action to set aside, annul, revoke or 3 cancel the franchise, or the transfer of the 4 franchise, if said transfer is not made 5 according to the procedures set forth in this 6 ordinance. 7 B. Any sale, transfer or assignment shall be made 8 by a Bill of Sale or similar document, an 9 executed copy of which shall be filed with the 10 City Manager within 30 days after such sale, 11 transfer or assignment. The Board shall not 12 withhold its consent unreasonably, provided, 13 however, the proposed assignee agrees to comply 14 with all the provisions of this ordinance and 15 the franchise and must be able to provide proof 16 of financial responsibility as determined by the 17 Board. 18 C. The consent of the Board to any sale, transfer, 19 lease, trust, mortgage or other instrument of 20 hypothecation shall not constitute a waiver or 21 release of any of the rights of the City under 22 this ordinance and the franchise. 23 8. Foreclosure. Upon the foreclosure or other judicial 24 sale of all or a substantial part of the grantee's projects 25 or upon the termination of any lease covering all or a 26 substantial part of the grantee's projects, the grantee shall 27 notify the City Manager of such fact, and such notification 28 shall be treated as a notification that a change in control 29 of the grantee has taken place, and the provisions of Section 30 7 hereof, governing the consent of the City to such change 31 and control of the grantee shall apply. 32 9. Receivership_ The City shall have the right to cancel 33 this franchise 120 days after the appointment of a receiver, 34 or trustee, to take over and conduct business of the grantee, 35 36 18) 538 0 0 1 whether in receivership, reorganization, bankruptcy, or other 2 action or proceeding, unless such receivership or trusteeship 3 shall have been vacated prior to the expiration of said 120 4 days, or unless: 5 A. Within 120 days after his election or 6 appointment, such receiver or trustee shall have 7 fully complied with all the provisions of this 8 ordinance and remedied all defaults 9 thereunder; and 10 B. Said receiver or trustee, within said 120 days 11 shall have executed an agreement, consented to 12 by the Board and duly approved by the court 13 having jurisdiction of the premises, whereby 14 such receiver or trustee assumes and agrees to 15 be bound by each and every provision of this 16 ordinance and the franchise granted to the 17 original grantee. 18 10. Review and renewal: 19 A. The Board shall not hold any meeting involving 20 the review, renewal, cancellation or expiration 21 of the grantee's franchise unless the City 22 Manager has (1) advised the grantee in writing, 23 at least 30 days prior to such meeting, and as 24 to its time, place and purpose, and (2) 25 published a notice, at least once, 10 days 26 before the meeting, in a newspaper of general 27 circulation within the City. 28 B. It shall be the policy of the City to amend this 29 franchise upon application of the grantee, when 30 necessary in order to carry out the intent of 31 this franchise; provided, however, that this section shall not be construed to require the 32 33 City to make any amendment. 34 11. Cancellation and expiration. 35 36 (9] 539 0 M = M � � I 1 A. The City shall have the right to cancel the 2 franchise if the grantee fails to comply with 3 any material or substantial provision of this 4 ordinance, or amendments thereto, or of the 5 grant of the franchise or any reasonable order, 6 direction or permit issued by any City 7 department or agency pursuant to such material 8 and substantial provision, or any rule or 9 regulation promulgated by the City which is reasonable in light of, and consistent with, any 10 11 provision of this ordinance or the franchise, or if the grantee persistently fails to comply with 12 13 any provision of either, or any reasonable order, direction or permit. Cancellation shall 14 be by ordinance of the Board duly passed in 15 accordance with the following procedures: 16 1. The City Manager shall notify the grantee of 17 the alleged failure or persistent failure of 18 compliance and give the grantee a reasonable 19 opportunity to correct such failure or 20 persistent failure or to present facts and 21 argument and refutation of the alleged failure 22 or persistent failure. 23 2. If the City Manager then concludes that there 24 is a basis for cancellation of the franchise 25 pursuant to paragraph "A" of this section, he 26 shall notify the grantee thereof. 27 3. If within reasonable time the grantee does 28 not remedy or put an end to the alleged failure 29 or persistent failure, the Board, after a public 30 hearing on notice, may cancel the franchise if 31 it determines that such action is warranted 32 under paragraph "A" of this section. 33 C. Grantee shall not be declared in default or be 34 35 36 [10] 540 M= M M= M= M M M M M M 0 0 1 subjected to any sanction under any provision of 2 this ordinance or the franchise in any case in 3 which the performance of any such provision is 4 prevented for reasons beyond its control., 5 D. If all or part of the streets within the City 6 that are the subject of this franchise are 7 closed or discontinued as provided by statute, 8 then the franchise, and all rights and 9 privileges hereunder with respect to said 10 streets or any part thereof so closed or 11 discontinued, shall cease and terminate upon the 12 date of the passage of the ordinance closing and 13 discontinuing such streets and the grantee shall 14 not be entitled to damages from the City due to 15 the closing or discontinuance of such street. 16 13. Appeals. In the event the grantee questions the 17 reasonableness of any order, requirement, decision or other 18 action taken by the City Manager or shall be of the opinion 19 that the City Manager lacks authority to take such action, 20 the grantee shall be allowed to appeal the order, 21 requirement, decision or other action to the Board of 22 Directors. The notice of objection and request for an appeal 23 shall be made in writing to the City Clerk within two weeks 24 of the objectionable order, requirement, decision or other 25 action. 26 14. Sundry provisions. 27 A. Every direction, notice or order to be served 28 upon the grantee shall be delivered or sent by 29 registered mail to its office at 1000 Wolfe 30 Street, Little Rock, Arkansas 72202. Every 31 notice served upon the City shall be delivered 32 or sent by registered mail to the City Manager, 500 W. Markham Street, City Hall, Little Rock, 33 34 Arkansas 72201. 35 36 [11) 541 542 1 B. All provisions of this ordinance shall apply to 2 the grantee, its successors and assigns, as such 3 may be approved by the Board, in accordance with 4 the ordinance. 5 C. The rights granted by this ordinance are subject 6 to all franchises and permits heretofore or 7 hereafter granted by the Board to use the 8 streets of the City by other public utility or 9 public service corporations. It is not intended by the grant of this franchise to abridge the 10 11 exercise of the police power heretofore or 12 hereafter granted to the City by the laws of the 13 State of Arkansas. The grant of this franchise is subject to all ordinances and resolutions of 14 15 the Board of Directors of the City of Little 16 Rock as the same now exists or may be hereafter amended, revised or codified, and the lawful 17 18 exercise of any other power granted to the City 19 by the laws of this state. D. The specific mention of the materiality of any 20 of the provisions herein is not intended to be 21 exclusive of any others for the purpose of 22 determining whether any failure of compliance 23 hereunder is material and substantial. 24 E. If any particular section of this ordinance or 25 the particular application thereof, shall be 26 held invalid, the remaining provisions, and 27 their application, shall not be affected 28 thereby. 29 F. The grantee shall assume the cost of publication 30 of this ordinance and franchise as such 31 publication as required by law and such is 32 payable upon the grantee's filing of acceptance. 33 G. Whenever this ordinance or the franchise sets 34 35 36 [12] 542 M M M M M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 `al 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 • 543 forth any time for any act to be performed by or on behalf of the grantee, such time shall be deemed of the essence and the grantee's failure to perform within the time allotted shall, in all cases, be sufficient grounds for the City to invoke the remedies available under the terms and conditions of this ordinance and the franchise. IN FATNESS WHEREOF hereunto by its City Manager and its corporate seal to be hereto affixed and attested by its City Clerk and the grantee has caused its name to be subscribed hereunto by its chairman as of the day and year first above written. SECTION 2. Emergency clause. The need for the Housing Authority of the City of Little Rock to operate and control rights -of -ways contained within their projects and thereby maintain effective control over the operation and maintenance of its property is important to preserve the public health, safety and welfare. An.emergency is therefore declared to exist and this ordinance shall be in full force and effect from and after the date of its execution. PASSED: September 7 , 1993 ATTEST: [CI;KRR Robbie Hancock 6 t , / MR M _I l [13] APPROVED: ` IMAYWI Jim Dailey ll (See Ordinance #16,487) FRANCHISE AGREEMENT This contract, made this 9th day of September , 1993, by and between the City of Little Rock, a municipal corporation of the State of Arkansas, hereinafter referred to as "City ", and the Housing Authority of the City of Little Rock, Arkansas, hereinafter referred to as "grantee "; WITNESSETH That for and in consideration of the mutual undertaking of the parties to this contract, the City and the grantee hereby covenant and agree each with the other as follows: 1. Purpose. The purpose of this ordinance is to provide for the grantee an exclusive franchise to control the City rights -of -way that traverse on and through properties which are owned and operated by the grantee. 2. Definitions. A. City Manager means the City Manager of Little Rock or its duly authorized representative. B. City means the City of Little Rock; C. Board means the Board of Directors of the City of Little Rock; D. Franchise means and includes any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to obtain the exclusive jurisdiction over City rights -of -way described herein. E. Grantee means the person, firm or corporation to whom or to which a franchise is granted by the Board under this ordinance, or anyone who succeeds said person, firm or corporation in .1 M 4. accordance franchise. with the provisions of this F. Streets means the surface space of streets, avenues, highways, boulevards, bridges, tunnels, alleys, public places, and any other rights -of -way and easements within or belonging to the City, and which lie within or adjacent to properties owned and operated by the grantee, and as further described herein. Franchise required; duration; exclusivity. A. The City shall require an exclusive franchise for the jurisdiction of the streets so described herein for the operation and control by the grantee. No such rights shall be allowed without a franchise. B. The franchise shall be granted for a term of 15 years; thereafter the franchise may be renewed for terms of 10 years as provided in Section 10 hereof. C. The franchise, rights and privileges herein granted are exclusive. Use of the streets. A. The grantee shall have the right to exercise control over access to and use of the streets of the City, as described herein, as if the grantee was the owner in fee simple of all such streets. B. Nothing in this section shall be construed to relieve the grantee from its obligation to pay any fees or rents for its use of the streets and [ 2 ] facilities of the City, utility companies, or other legal entities. C. The grantees shall not erect or install, move, alter, or change the location of any pole, tower, wire, conduit, subway, line, manhole, cable or equipment in any street, alley or other public place of the City or dig, cut or disturb any street, alley or other public place of the City unless prior written notice of its intention to do so is given to such department or agency of the City as shall have been or may be designated by the City Manager, or the Board of the City and permission in writing to do so is granted by such department or agency or such requirement is waived by such department or agency. Such permission shall be conditioned upon compliance with the terms, conditions, provisions and limitations of this franchise and with such other terms, provisions, conditions and limitations as will preserve, protect and promote the safety of the public using the streets, alleys and other public places by the City or by any other public utility or public service corporation for their respective purposes and functions. Such permission shall also be conditioned upon such terms, conditions, provisions and limitations as will preserve, protect and promote the health, safety and general welfare of the City, and its citizens [ 3 ] 'C subject to the lawful exercise of the police power. D. In the event the relocation, construction, reconstruction, maintenance or repair by the City of any of its streets, facilities or services now or hereafter acquired and subject to this franchise, and including, but not limited to, any street, alley or other public place, sewer, electric, water, fire alarm, emergency communication or any part thereof, or in the event access to any street, alley or other public place to or from any property of the City is required, and it is necessary to move, alter or relocate, either permanently or temporarily, any of the grantee's property or equipment or any part thereof in the public right -of -way in order for the City to relocate, construct, reconstruct, maintain or repair any such facility, service, street, alley or other public place or in any such sewer or electric, water, fire alarm, police communication or any part thereof, or to obtain access to or from such property, upon notice from the City, the grantee will move, alter or relocate such property or equipment, at its own costs and expense; and should the grantee fail, refuse or neglect to comply with such notice, such property or equipment or part thereof may be removed, altered or relocated by the City at the [ 4 ] cost of the grantee and the City shall not be liable to the grantee for damages resulting from such removal, alteration or relocation. E. It is the intent of Grantee and the City that no barriers will be erected that will endanger the health, safety and general welfare of the inhabitants of the projects. 5. Franchise fee. The grantee shall pay to the City in consideration for the granting of the exclusive franchise to use and control the public ways subject to the franchise, an annual payment in lieu of taxes (PILOT). The City shall use the franchise fee payments to assist in funding the maintenance of the rights -of -way, the responsibility for which has been retained herein by the City. 6. Liability for damages. A. The grantee shall pay and, by its acceptance of this franchise, the grantee specifically agrees that it will pay all damages and penalties which the City may legally be required to pay as a result of granting this exclusive franchise. B. The grantee shall pay and, by its acceptance of this franchise, the grantee specifically agrees that it will pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in paragraph A above. These expenses shall include all out of pocket expenses, such as attorneys fees, and shall also include the reasonable value of any [5] 7. services rendered by the City Attorney or his assistants or any City employee. C. The grantee shall file with the City Clerk the insurance policies required by this section and evidence of payment of required premiums on or before the time of the execution of the franchise agreement and thereafter maintained in full force for the full time of the franchise and in effect at all times, at the expense of the grantee, a comprehensive liability insurance policy with the City of Little Rock named as an insured, written by a company authorized to do business in the State of Arkansas, in a form approved by the City Attorney, protecting the City against liability for loss, for personal injury and property damaged occasioned by the right conferred to the grantee, by this franchise, in the following minimum amounts: 1. $250,000 for property damage to any one person; 2. $500,000 for property damage in any one accident; 3. $500,000 for any personal injuries to any one person; 4. $1,000,000 for personal injuries in any one accident; 5. $1,000,000 for all other types of liability. Transfer of franchise: A. The exclusive franchise granted under this [6] ordinance shall be a privilege to be held in personal trust by the grantee. It shall not be assigned, transferred, sold or disposed of, in whole or in part, by voluntary sale, merger, consolidation or otherwise or by forced or involuntary sale, without prior consent of the Board expressed by ordinance and then on only such conditions as may therein be prescribed. The City is hereby empowered to take legal or equitable action to set aside, annul, revoke or cancel the franchise, or the transfer of the franchise, if said transfer is not made according to the procedures set forth in this ordinance. B. Any sale, transfer or assignment shall be made by a Bill of Sale or similar document, an executed copy of which shall be filed with the City Manager within 30 days after such sale, transfer or assignment. The Board shall not withhold its consent unreasonably, provided, however, the proposed assignee agrees to comply with all the provisions of this ordinance and the franchise and must be able to provide proof of financial responsibility as determined by the Board. C. The consent of the Board to any sale, transfer, lease, trust, mortgage or other instrument of hypothecation shall not constitute a waiver or release of any of the rights of the City under [7] this ordinance and the franchise. 8. Foreclosure. Upon the foreclosure or other judicial sale of all or a substantial part of the grantee's projects or upon the termination of any lease covering all or a substantial part of the grantee's projects, the grantee shall notify the City Manager of such fact, and such notification shall be treated as a notification that a change in control of the grantee has taken place, and the provisions of Section 7 hereof, governing the consent of the City to such change and control of the grantee shall apply. 9. Receivership. The City shall have the right to cancel this franchise 120 days after the appointment of a receiver, or trustee, to take over and conduct business of the grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless: A. Within 120 days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this ordinance and remedied all defaults thereunder; and B. Said receiver or trustee, within said 120 days shall have executed an agreement, consented to by the Board and duly approved by the court having jurisdiction of the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this ordinance and the franchise granted to the [8J original grantee. 10. Review and renewal: A. The Board shall not hold any meeting involving the review, renewal, cancellation or expiration of the grantee's franchise unless the City Manager has (1) advised the grantee in writing, at least 30 days prior to such meeting, and as to its time, place and purpose, and (2) published a notice, at least once, 10 days before the meeting, in a newspaper of general circulation within the City. B. It shall be the policy of the City to amend this franchise upon application of the grantee, when necessary in order to carry out the intent of this franchise; provided, however, that this section shall not be construed to require the City to make any amendment. 11. Cancellation and expiration. A. The City shall have the right to cancel the franchise if the grantee fails to comply with any material or substantial provision of this ordinance, or amendments thereto, or of the grant of the franchise or any reasonable order, direction or permit issued by any City department or agency pursuant to such material and substantial provision, or any rule or regulation promulgated by the City which is reasonable in light of, and consistent with, any provision of this ordinance or the franchise, or [9] C. if the grantee persistently fails to comply with any provision of either, or any reasonable order, direction or permit. Cancellation shall be by ordinance of the Board duly passed in accordance with the following procedures: 1. The City Manager shall notify the grantee of the alleged failure or persistent failure of compliance and give the grantee a reasonable opportunity to correct such failure or persistent failure or to present facts and argument and refutation of the alleged failure or persistent failure. 2. If the City Manager then concludes that there is a basis for cancellation of the franchise pursuant to paragraph "A" of this section, he shall notify the grantee thereof. 3. If within reasonable time the grantee does not remedy or put an end to the alleged failure or persistent failure, the Board, after a public hearing on notice, may cancel the franchise if it determines that such action is warranted under paragraph "A" of this section. Grantee shall not be declared in default or be subjected to any sanction under any provision of this ordinance or the franchise in any case in which the performance of any such provision is prevented for reasons beyond its control. If all or part of the streets within the City that are the subject of this franchise are [10] closed or discontinued as provided by statute, then the franchise, and all rights and privileges hereunder with respect to said streets or any part thereof so closed or discontinued, shall cease and terminate upon the date of the passage of the ordinance closing and discontinuing such streets and the grantee shall not be entitled to damages from the City due to the closing or discontinuance of such street. 13. Appeals. In the event the grantee questions the reasonableness of any order, requirement, decision or other action taken by the City Manager or shall be of the opinion that the City Manager lacks authority to take such action, the grantee shall be allowed to appeal the order, requirement, decision or other action to the Board of Directors. The notice of objection and request for an appeal shall be made in writing to the City Clerk within two weeks of the objectionable order, requirement, decision or other action. 14. Sundry provisions. A. Every direction, notice or order to be served upon the grantee shall be delivered or sent by registered mail to its office at 1000 Wolfe Street, Little Rock, Arkansas 72202. Every notice served upon the City shall be delivered or sent by registered mail to the City Manager, 500 W. Markham Street, City Hall, Little Rock, Arkansas 72201. B. All provisions of this ordinance shall apply to [11] the grantee, its successors and assigns, as such may be approved by the Board, in accordance with the ordinance. C. The rights granted by this ordinance are subject to all franchises and permits heretofore or hereafter granted by the Board to use the streets of the City by other public utility or public service corporations. It is not intended by the grant of this franchise to abridge the exercise of the police power heretofore or hereafter granted to the City by the laws of the State of Arkansas. The grant of this franchise is subject to all ordinances and resolutions of the Board of Directors of the City of Little Rock as the same now exists or may be hereafter amended, revised or codified, and the lawful exercise of any other power granted to the City by the laws of this state. D. The specific mention of the materiality of any of the provisions herein is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance hereunder is material and substantial. E. If any particular section of this ordinance or the particular application thereof, shall be held invalid, the remaining provisions, and their application, shall not be affected thereby. F. The grantee shall assume the cost of publication [12] of this ordinance and franchise as such publication as required by law and such is payable upon the grantee's filing of acceptance. G. Whenever this ordinance or the franchise sets forth any time for any act to be performed by or on behalf of the grantee, such time shall be deemed of the essence and the grantee's failure to perform within the time allotted shall, in all cases, be sufficient grounds for the City to invoke the remedies available under the terms and conditions of this ordinance and the franchise. ATTEST �4-7- Secre a ATTEST: aCitoy-4 er � LITTLE ROCK HOURSING AUTHORITY BOARD ChairMan CITY OF LITTLE ROCK, AFKANSAS By: %� 9 Mayo [13]