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HomeMy WebLinkAbout022976 ORD - 07/08/1997AN ORDINANCE GRANTING SOUTHWESTERN BELL TELEPHONE COMPANY, PURSUANT TO ARTICLE IX SECTION 2 OF THE CITY CHARTER, MUNICIPAL CONSENT FOR USE AND OCCUPANCY OF THE PUBLIC RIGHTS-OF-WAY FOR A PERIOD OF TWO YEARS COMMENCING 60 DAYS AFTER PASSAGE OF THIS ORDINANCE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI: SECTION 1. PURPOSE The purpose of this consent is to grant Southwestern Bell Telephone Company, "Grantee," a municipal consent to use the public rights-of-way to provide telecommunications services within Corpus Christi. SECTION 2. APPLICABILITY OF CITY COUNCIL POLICY This municipal consent is granted under Article IX, Section 2 of the City Charter and subject to the City Council Policy attached as Exhibit "A" (hereinafter "the Policy") with which Grantee agrees to comply. SECTION 3. COMPENSATION TO THE CITY (A) Grantee shall pay the City a municipal consent fee for the use and occupancy of the public rights-of-way, calculated in accordance with Section 11 of the Policy. (B) Grantee shall pay the municipal consent fee on a quarterly basis, in accordance with Section 12 of the Policy. (C) The City may request that Grantee provide non -monetary compensation in the form of facilities or services. Grantee shall receive an offset to its consent fee payments equal to the direct cost of service or facility provided under this subsection, in accordance with Section 11 of the Policy. (D) If the City Council adopts an alternative method of calculating the growth factor pursuant to Section 11(2)(d) of the Policy, the Grantee agrees to pay the City in accordance with the changed method. SECTION 4. TRANSFERS Grantee agrees to comply with Section 14 of the Policy relating to a transfer of a municipal consent. 7JRB0624.108 1l VI tIEQ • SECTION 5. CONSTRUCTION OBLIGATIONS Grantee agrees to comply with Section 17 of the Policy relating to construction obligations. SECTION 6. CONDITIONS OF RIGHTS-OF-WAY OCCUPANCY Grantee agrees to comply with Section 18 of the Policy relating to conditions of rights-of-way occupancy. SECTION 7. NOTICES (A) All notices to the City shall be in writing to: City Manager City of Corpus Christi P. 0. Box 9277 Corpus Christi, Texas 78469-9277 (B) All notices to Grantee shall be in writing to: Area Manager of External Affairs Southwestern Bell Telephone 406 N. Carancahua, Rm 141 Corpus Christi, Texas 78401 Telephone: (512) 881-7115 Fax: (512)880-3239 Fax: (512)881-2253 Any change in the address or telephone number of the Grantee or the City shall be furnished to the other 10 days before the change takes effect. SECTION 8. INSURANCE REQUIREMENTS (A) Grantee agrees to comply with Section 19 of the Policy relating to insurance requirements. (B) Grantee shall file with the City's Risk Management Director a copy of a certificate of self-insurance evidencing the following coverages: Type: Amount: Workers' Compensation: and Statutory Employer's Liability: 100,000/$500,000/$100,000 Commercial General (public) Liability - to include coverage for the following where the exposure exists: 7JRB0624.108 2 SECTION 9. Premises operations Independent contractors Products/completed operations Personal injury Contractual liability Explosion, collapse and underground property damage Combined single limit for bodily injury and property damage $10,000,000 per occurrence or its equivalent Comprehensive Automobile insurance coverage for loading and unloading hazards, for: (i) Owned/leased automobiles (ii) Non -owned automobiles (iii) Hired automobiles TERM Combined single limit for bodily injury and property damage $1,000,000 per occurrence or its equivalent This consent is granted for a term of two years beginning on the sixty-first day after passage. SECTION 10. TERMINATION This consent is subject to termination by the City Council, after notice and hearing, for Grantee's failure to comply with the terms of Article IX of the City Charter, the Policy, or this municipal consent. SECTION 11. SEVERABILITY The provisions of this ordinance are severable. If any provision of this ordinance or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this ordinance. SECTION 12. BONDS (A) To the extent not maintained by an affiliate, Grantee shall obtain and maintain and file with the City Clerk, a corporate surety bond with a surety company authorized to do business in the State of Texas and found acceptable by the City Attorney, in the amount of one hundred fifty thousand dollars ($150,000) to secure Grantee's performance of the obligations set forth in sections 5 and 6 of this municipal consent. Grantee shall provide this corporate surety bond within thirty (30) days of final passage of this municipal consent. (B) The rights reserved to the City with respect to the bond are in addition to all other rights of the City, whether reserved by this ordinance or authorized by law; and no action, proceeding or exercise of a right with respect to such bond shall affect any other rights the City may have. 7JRB0624.108 3 (C) The bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled by the surety nor any intention not to renew be exercised by the surety until sixty (60) days after receipt by the City, by registered mail, of written notice of such intent." SECTION 13. ACCEPTANCE BY GRANTEE Grantee shall file with the City Clerk a statement accepting the terms of this municipal consent. SECTION 14. This ordinance takes effect the sixty-first day after passage. 7JRB0624.108 4 That the foreg..ng ordinance was read for the first time and passed to its second reading on this the PA hday of j , 19 4 7 , by the following vote: Loyd Neal Jaime Capelo Melody Cooper Alex L. Garcia, Jr. Arnold Gonzales Betty Jean Longoria John Longoria Edward A. Martin Dr. David McNichols Thth) foregoing ordinance w s read for the second time and passed finally on this the of , , 19 (7 , by the following vote: Lo . Neal Betty Jean Longoria John Longoria Edward A. Martin Dr. David McNichols Jaime Capelo Melody Cooper Alex L. Garcia, Jr. Arnold Gonzales PASSED AND APPROVED, this the Orb day of ATTEST: , 1997. /day Armando Chapa, City Se .tary M YOR THE CITY OF CORPUS RISTI APPROVED THIS $ DAY OF 5.41/ , 1997: JAMES R. BRAY, JR., CITY ATTORNEY ,,A• 1Z i, 7JRB0624.108 5 A RESOLUTION ADOPTING A CITY COUNCIL POLICY GOVERNING CITY CONSENT UNDER ARTICLE IX, SECTION 2, OF THE CITY CHARTER FOR THE USE OF CITY RIGHTS-OF-WAY BY PROVIDERS OF CERTAIN TELECOMMUNICATIONS SERVICES . BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: The City Council hereby adopts the following policy governing City consent under Article IX, Section 2, of the City Charter for the use of City rights-of-way by providers of certain telecommunications services. §1 FINDINGS AND PURPOSE (A) The City Council makes the following findings: (1) It is in the public interest to promote competition in telecommunications services and the availability of broadband transmission services to all residences and businesses. (2) It is in the public interest for the City to exercise the historical right to control access of and to manage the City's rights-of-way and to obtain reasonable compensation for the use of City property. (3) This policy governing the use of the City's rights-of-way is authorized by the City Charter, Article 1175, V.A.C.S., and other state and federal law. (B) The purpose of this policy is to establish a competitively neutral policy for use of public rights-of-way for the provision of telecommunications services and to enable the City: (1) to permit non-discriminatory access to the public rights-of-way for providers of telecommunications services; and (2) to manage the public rights-of-way to minimize the effects and cost to the public of locating telecommunications facilities within the rights-of-way; (3) to obtain fair and reasonable compensation for the commercial use of public rights-of-way through collection of fees and charges; (4) to promote competition among telecommunications service providers and encourage the universal availability of modern telecommunications services to all residents and businesses of Corpus Christi; 7JRB0624.109 EXHIBIT A (5) to minimize congestion, inconvenience, visual blight and other adverse effects on the City's public rights-of-way; and (6) to encourage service providers to implement a plan to promote minority and women contractor participation in procurement related to the provision of telecommunication services. § 2 AUTHORITY; SCOPE (A) This policy shall be read consistently with Article IX of the Corpus Christi City Charter. (B) This policy applies to all telecommunications service providers under Title II of the Communications Act of 1934, as amended, (47 U.S.C. 201 et seq.) ("Title II") excluding services provided solely by means of a wireless transmission. No consent granted under this chapter authorizes the provision of any services not covered by Title II. Cable service and open video systems as defined in Title VI of the Communications Act of 1934 and any other content service are expressly excluded. (C) The right of a person to apply for or to use utility infrastructure shall be governed by rules developed by the City. The grant of a municipal consent under this chapter does not grant attachment rights or authorize the use of utility infrastructure. § 3 DEFINITIONS In this chapter: 1. Affiliate means a person who controls, is controlled by, or is under common control with a provider. Affiliate does not include a person who serves end use customers by means of a wireless transmission. There is a rebuttable presumption of control if a provider owns at least 25% of the affiliate' s stock or assets. 2. Direct Cost means all expenses of a provider for labor and materials associated with a specific activity or functions excluding overhead. 3. Finance Director means the Director of the Finance Department of the City, or the Director's designee. 4. Engineering Director means the Director of Engineering Services of the City, or that person's designee. 5. Line means each access line consisting of transmission facilities located between the end user customer's premises network interface within the city and the telecommunications provider's serving facilities, (these serving facilities include: central office facilities, distribution frame facilities or other similar facilities) that allow delivery of telecommunication services within the city; or each channel termination point or points of a non -switched telephone circuit dedicated for use between 7JRB0624.109 EXHIBIT A 2 specific locations within the city identified by an end user customer (commonly referred to as a private line). Interoffice -transport and other transmission facilities which do not terminate at the end use customers network interface device are not lines that would be separately identified for calculation of the municipal consent fee. 6. Municipal Consent means the right granted by ordinance to a person to use public rights-of-way to provide telecommunications services within the city to the public or to other providers. 7. Payment Year means August 1 through July 31 of a calendar year. 8. Person means an individual, corporation, association, or partnership. 9. Provider means a person that delivers telecommunications services within the city to the public and has been granted a certificate under Art. 1446c-0, Title III V.A.C.S. ("PURA 95") successor authorization required by the State of Texas. 10. Public Rights -of -Way means the surface, the air space above the surface, and the area below the surface of a public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, easement or similar property in which the City holds a property interest or exercises rights of management or control. 11. Telecommunications Network or Network means all facilities placed in the public rights-of-way and used to provide telecommunications services to the public. 12. Telecommunications Services means the providing or offering to the public for rent, sale, or lease, whether in exchange for money or other value, the transmissions between or among points identified by the user, of information of the user's choosing, including voice, video or data, without change in content of the information as sent and received, if the transmissions are accomplished through a Telecommunications Network or use of or access to the provider's Telecommunications Network by sale or lease or otherwise. Telecommunications services includes ancillary or adjunct switching services and signal conversions rendered as a function of underlying transmission services, but excludes long distance transmissions, inter LATA and intra LATA toll transmissions. Telecommunications services only includes Title II services and expressly excludes cable services or open video systems as defined in Title VI of the Communications Act of 1934, as amended, and other content services. 13. Utility Infrastructure means the City utilities distribution poles, transmission structures, ducts, transmission and distribution conduit, building entry conduit, utility tunnels, manholes, vaults, radio towers, other radio equipment, fiber optic cable capacity and active communications capacity, together with all appurtenant facilities. § 4 MUNICIPAL CONSENT REQUIRED 71RB0624.109 EXHIBIT A 3 (A) A provider may not deliver telecommunications services in the city by means of a network unless the person obtains a municipal consent. (B) The use of public rights-of-way for the delivery of any service not covered by this policy is subject to all other applicable city requirements. § 5 APPLICATION FOR MUNICIPAL CONSENT (A) A person must submit an application to the Finance Director to grant, renew, extend, amend, or transfer a municipal consent. (B) The application must be on a form prescribed by the Finance Director, and it must include the following: a description of the services to be provided; an outline of the applicant's proposed network, if any, and a description of the effect on the public rights-of-way, if any. (C) Each applicant shall submit a non-refundable application fee of $850 with the application. § 6 RECOMMENDATION ON APPLICATION The City Manager shall review an application submitted under this policy and recommend to the City Council that it grant or deny the application. The City Manager shall make the recommendation to the City Council no later than the 90th day after an application is filed. § 7 MUNICIPAL CONSENT ORDINANCE (A) If the City Manager finds that the application meets the requirements of this policy, the City Manager shall request the City Attorney to prepare a municipal consent ordinance for the City Council's consideration. (B) In addition to the requirements under Article IX of the City Charter, a municipal consent ordinance submitted to the City Council must include the following provisions: (1) a term of no more than seven years for the consent agreement, as requested by the applicant in the application; (2) a requirement that the provider comply with this policy; (3) a requirement that the provider's municipal consent is subject to termination by the City Council, after notice and hearing, for the provider's failure to comply with this policy or on a showing that the provider has breached the terms of the municipal consent; 7JRB0624.109 EXHIBIT A 4 (4) a provision that incorporates the requirement of Section 14; (5) a provision that incorporates the requirements of Sections 17, 18, and 19 of this policy, if applicable; and (6) a provision that allows for adjustments to the municipal consent fee calculation method with the agreement of the provider, if the fees set forth in this policy are changed by the City Council. § 8 PETITION FOR RECONSIDERATION The act of granting, amending, denying or terminating a municipal consent is a legislative function within the discretion of the City Council. A person whose application for a municipal consent is denied, is not considered by the City Council on or before the 45th day after the Director submits a recommendation under Section 6 of this policy, or whose municipal consent is terminated must petition the City Council for reconsideration before seeking judicial remedies. A petition is considered denied if the City Council does not act within 45 days after the petition is filed with the City Secretary. § 9 ADMINISTRATION AND ENFORCEMENT (A) The Finance Director shall administer this policy and enforce compliance with a municipal consent granted under this policy. (B) A provider shall report information that the Finance Director requires in the form and manner prescribed by the Finance Director relating to the use of public rights-of-way for the telecommunications services authorized by a municipal consent granted under this policy. (C) The Finance Director shall report to the City Council the Director's determination that a provider has failed to comply with this policy. § 10 APPLICABILITY (A) Sections 17, 18 and 19 of this policy apply only to a provider that owns or controls physical facilities in the rights-of-way. (B) Section 20 of this policy applies to a provider that has a property interest in a network. § 11 COMPENSATION TO CITY (A) To compensate the City for the use and occupancy of the public rights-of-way, a provider shall pay a municipal consent fee calculated as follows: (1) Municipal consent fee: 71RB0624.109 EXHIBIT A 5 (a) Following the effective date of this policy, a provider shall submit to the Finance Director within 45 days of the end of the quarter a certified statement, with the municipal consent fee payment under Section 12, indicating the number of lines used to provide telecommunications services at month end, for each month of the quarter, excluding any line leased by or used to deliver services by providers that remit municipal consent fees directly to the City. The statement shall be provided on a form prescribed by the Director. (b) For each month of the quarter a provider shall pay a municipal consent fee based on its number of lines calculated as follows: Monthly Amount Per Line or Per Channel Termination Point Commencing on Effective Date of the Policy Type of Customer Residential (excluding Lifeline and Tel -Assistance and private lines) $1.25 Business, including each channel termination point of a private line (2) Adjustments to municipal consent fee: Monthly Amount Per Line or Per Channel Termination Point Commencing on January 1, 1998 $1.75 $2.35 $2.85 (a) For each payment year, after the year of adoption of this policy, the municipal consent fee shall be determined by multiplying the previous year's line calculation amounts set forth in Subsection (A)(1) of this section by a growth factor. The growth factor is calculated by dividing the total of all the providers' aggregate revenue subject to the state telecommunications sales tax, under TEXAS TAX CODE ANN. §151.0103, for the twelve month period ending April 30 of the current year (payment year minus one) by the aggregate revenue subject to the state telecommunications sales tax for the twelve month period ending April 30 of the preceding year (payment year minus two years.) (b) A provider shall report to the Finance Director revenue subject to the state telecommunications sales tax with the City on June 15 of each year in a form prescribed by the Finance Director consistent with this section. (c) On or before July 1, the Finance Director shall notify each provider of the municipal consent fee applicable for the subsequent payment year. (d) In the event of a substantial change in services subject to the state telecommunications sales tax the City Council may adopt an alternative method of 7JRB0624.109 EXHIBIT A 6 calculating the growth factor to result in substantially the same aggregate fee amounts. (3) Non -monetary consideration: To the extent allowed by law, the City may require non -monetary consideration from each provider for the City's sole, non-commercial use. To the extent not expressly provided by applicable law, a provider may agree to furnish to the City non -monetary consideration in the form of network capacity, conduit or other infrastructure at the provider's direct cost. The Finance Director shall apply a credit or an offset for any non -monetary consideration received to the annual municipal consent fee. The Finance Director shall publicly disclose the form of non -monetary consideration and the credit amount. (B) A provider that does not own or operate a network and that demonstrates to the Finance Director that the lines it utilizes for resale of services from other providers are included in the other provider's fee calculation is not required to comply with the payment requirement of Section 11 (A)(1)(b). A provider excluded from payment requirements pursuant to this section shall report to the Finance Director changes in operation that may affect the availability of this payment option before the end of the quarter in which payment would otherwise be required. (C) A provider may pass through to customers the municipal consent fee on a prorata basis at its discretion, as permitted by state law. The fee calculation amounts set forth in Subsection (A) are established solely for the purpose of allocating the fee fairly among providers in the City. The amounts set forth are not intended to represent, nor does the City require or recommend, a charge on a per line or customer basis. § 12 FEE PAYMENTS (A) A provider shall remit the municipal consent fee on a quarterly basis together with the certified statement required in Section 11 (A) (1) (a) by wire transfer to an account designated by the Finance Director. (B) Payment shall be made on or before the 45th day following the close of each calendar quarter for which the payment is calculated. (C) The Finance Director may waive the requirement of the wire transfer. § 13 AUDITS (A) On 30 days notice to a provider the City may audit a provider at any time. The provider shall furnish information to demonstrate its compliance with the consent. (B) A provider shall keep complete and accurate books of accounts and records of business and operations in accordance with generally accepted accounting principles for a period of five years, which shall be the period for which the City can make claims for underpayments under a municipal 7112130624.109 EXHIBIT A 7 consent. If the Federal Communications Commission requires, a provider shall use the system of accounts and the forms of books, accounts, records, and memoranda prescribed in 47 CFR Part 32 or its successor. The Finance Director may require the keeping of additional records or accounts that are reasonably necessary for purposes of identifying, accounting for, and reporting the number of lines used to deliver telecommunication services. The City may examine the provider's books and records. (C) A provider shall make available to the City, for the City to examine, audit, review and copy, in Corpus Christi, on the Finance Director's reasonable written request, its books and records including papers, books, accounts, documents, maps, plans and other provider records pertaining to a municipal consent granted under this chapter. A provider shall fully cooperate in making records available and otherwise assist the City examiner, expressly excluding any records, documents or other writings the disclosure of which is prohibited by state or federal law, including the Electronic Communications Privacy Act, 18 U.S.C. §2701 et seq. § 14 TRANSFER (A) A provider may not transfer a municipal consent unless the City Council approves the transfer by ordinance. (B) A change in control of a provider is a transfer requiring City Council approval. A change of 25 percent or greater in the ownership of the provider establishes a rebuttable presumption of a change in control. (C) If a provider attempts to transfer or transfers the provider's municipal consent without approval of the City Council, the City Council may revoke the municipal consent. If a municipal consent is revolved, all rights of the provider under the consent end. (D) A provider may transfer, without City Council approval, the facilities in the right-of-way under a municipal consent to the provider's affiliate or to another provider who has a municipal consent under this policy. The provider transferring the facilities remains subject to all applicable obligations and provisions of the municipal consent unless the provider to which the facilities are transferred is also subject to these applicable obligations and provisions. The provider transferring must give written notice of the transfer to the Finance Director under the requirements of Section 15(D). § 15 NOTICES TO CITY (A) A provider shall notify the Finance Director in writing contemporaneously with the transmittal of all petitions, applications, written communications and reports submitted by the provider, to the Federal Communications, or their successor agencies relating to matters affecting both the use of public rights-of-way and the telecommunications services authorized by a municipal consent granted under this policy. A provider shall furnish the Finance Director copies of the documents upon request. It is not the Council's intent that failure to comply with this section 7JRB0624.109 EXHIBIT A 8 constitutes an automatic breach of a municipal consent. In case of a failure to comply, a provider shall have an additional 15 days to furnish the documents. (B) If a provider notifies the City of the confidential nature of information, the Finance Director shall maintain the confidentiality of the information to the extent permitted by law. Upon receipt by the City of requests for information designated by the provider as confidential the City shall notify the affected providers of the request by facsimile transmission. The City shall furnish providers with copies of Attorney General opinion requests it makes pertaining to the confidential information. (C) A provider shall submit to the City on an annual basis the amounts reported to the state Comptroller of Public Accounts regarding revenue subject to the state telecommunications sales tax in the city, as described in Section 11(A)(2)(a). (D) A provider shall give written notice to the City not later than 15 days before a transfer or change in operations that may affect the applicability of Sections 17, 18, 19, and 20 to the provider. § 16 CIRCUMVENTION OF FEE PROHIBITED A person may not circumvent payment of municipal consent fees or evade payment of fees by bartering, transfer of rights, or by any other means that result in undercounting a provider's number of lines. Capacity or services may be bartered if the imputed lines are reported in accordance with Section 11. § 17 CONSTRUCTION OBLIGATIONS (A) A provider is subject to the police powers of the City, other governmental powers, and the City's rights as a property owner under state and federal laws. A provider is subject to City requirements and federal and state rules in connection with the construction, expansion, reconstruction, maintenance or repair of facilities in the public rights-of-way. (B) A provider shall place certain facilities underground according to applicable City requirements. (C) At the City's request, a provider shall furnish the City accurate and complete information relating to the construction, reconstruction, removal, maintenance, operation and repair of facilities performed by the provider in the public rights-of-way. If any information furnished is erroneous as to the location of facilities, and reliance on this information results in construction delays or additional expenses, the provider who furnished the erroneous information shall be liable for the cost of delays and the additional expenses. (D) The construction, expansion, reconstruction, excavation, use, maintenance and operation of a provider's facilities and property are subject to applicable City requirements. (1) A provider shall perform excavations and other construction in the public rights-of-way in accordance with all applicable City requirements. A provider shall 7111E0624.109 EXHIBIT A 9 minimize interference with the use of public and private property and shall follow the construction directions given by the City. (2) When a provider completes construction work, a provider shall promptly restore the public rights-of-way to at least as good a condition as before the commencement of the work. A provider may excavate only for the construction, installation, expansion, repair, removal, and maintenance of the provider's facilities. (3) The City may require a provider to allow attachment of another provider's facilities to its poles and conduits, in accordance with the city charter, state and federal law. (4) A provider shall furnish the Engineering Director with construction plans and maps showing the routing of new construction at least 45 days before beginning construction that involves an alteration to the surface or subsurface of the public right-of-way. A provider may not begin construction until a permit has been approved in writing by the Engineering Director. New construction does not include minor alterations associated with normal customer hookup services. (5) A provider shall be a member of Texas One Call or similar agency as required by State law. (6) For construction that does not require a permit under (4), and which is primarily for maintenance operation or minor extension of existing facilities, the provider shall promptly notify the City's Special Services Engineer by fax (512/880-3501, or different number provided by the City) of the estimated time of commencement and completion of the alteration to the surface or subsurface. Notification shall be sequentially numbered on a form approved by the Engineering Director. During any construction, the provider shall be solely responsible to provide all vehicular and traffic safety measures reasonably necessary to protect persons and property in the area of the construction. (7) If the Engineering Director declares an emergency and requests the removal or abatement of facilities, by written notice, a provider shall remove or abate the provider's facilities by the deadline provided in the Engineering Director's request. A provider and the City shall cooperate to the extent possible to assure continuity of service. If a provider, after notice, fails or refuses to act, the City may remove or abate the facility, at the sole cost and expense of the provider, without paying compensation to the provider and without the City incurring liability for damages. (8) Except in an emergency, a provider may not excavate the pavement of a street or public right-of-way without first complying with City requirements. (9) Within 120 days of completion of each new segment of a provider's facilities, a provider shall supply the Engineering Director with a written statement that work authorized under the referenced City permit number has been completed and as -built drawings are on file at the provider's local office and are available for review and copying at no cost to the 7JRB0624.109 EXHIBIT A 10 City. A provider must obtain the City's approval before relocating the provider's facilities in the public rights-of-way. The City may not unreasonably withhold approval. A provider shall maintain at all times an updated map showing its network in the public rights-of-way, which map shall be available for inspection and copying by the Engineering Director. § 18 CONDITIONS OF RIGHTS-OF-WAY OCCUPANCY (A) In the exercise of governmental functions, the city has first priority over all other uses of the public rights-of-way. The City reserves the right to lay sewer, gas, water, electric and other pipe lines or cables and conduits, and to do underground and overhead work, and attachment, restructuring or changes in aerial facilities in, across, along, over or under a public street, alley or right-of-way occupied by a provider, and to change the curb, sidewalks or the grade of streets. (B) The Engineering Director shall assign priorities among competing uses of the public rights-of-way according to the order of completed permit applications. (C) If, during the term of a municipal consent, the City authorizes abutting landowners to occupy space under the surface of any public street, alley, or rights-of-way, the grant to an abutting landowner shall be subject to the rights of the provider. If the City closes or abandons a public rights-of-way that contains a portion of a provider's facilities, the City shall convey the land in the closed or abandoned public rights-of-way subject to the rights granted in the municipal consent. (D) If the City gives written notice, a provider shall, at the provider's expense, temporarily or permanently, remove, relocate, change or alter the position of provider's facilities that are in the public rights-of-way within 120 days. The City shall give notice whenever the City has determined that removal, relocation, change or alteration is reasonably necessary for the construction, operation, repair, maintenance or installation of a City or other governmental entity's public improvement in the public rights-of-way. This section shall not be construed to prevent a provider's recovery of the cost of relocation or removal from private third parties who initiate the request for relocation or removal or from governmental entities that have funds authorized for the payment of the relocation or removal costs. In the event of joint relocation projects, a provider shall be responsible for its proportionate share of the relocation costs. (E) During the term of its municipal consent, a provider may trim trees in or over the rights-of-way for the safe and reliable operation, use, and maintenance of its network. All tree trimming shall be performed in accordance with standards promulgated by the City. When ordered by the Engineering Director, tree trimming shall be done under the supervision of the City. (F) A provider shall temporarily remove, raise or lower its aerial facilities to permit the moving of houses or other bulky structures, if the Engineering Director gives written notice of no less than 48 hours. The expense of the temporary rearrangement shall be paid by the party or parties requesting and benefiting from the temporary rearrangement. The provider may require prepayment or prior posting of a bond from the party requesting the temporary move. § 19 INSURANCE REQUIREMENTS 71R130624.109 EXHIBIT A 11 (A) A provider shall obtain and maintain insurance in the amounts prescribed by the Finance Director with an insurance company licensed to do business in the State of Texas acceptable to the Finance Director throughout the term of a municipal consent granted under this policy. A provider shall furnish the Finance Director with proof of insurance at the time of filing the acceptance of a municipal consent. The City reserves the right to review the insurance requirements during the effective period of a municipal consent, and to reasonably adjust insurance coverage and limits when the Finance Director determines that changes in statutory law, court decisions, or the claims history of the industry or the provider require adjustment of the coverage. For purposes of this section, the City will accept certificates of self-insurance issued by the State of Texas providing the same coverage. (B) The Finance Director may, on request and at no cost to the City, receive copies of certificates of insurance evidencing the coverage required by this section. The Finance Director may request the deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, unless the policy provisions are established by a law or regulation binding the City, the provider, or the underwriter. If the Finance Director requests a deletion, revision or modification, a provider shall exercise reasonable efforts to pay for and to accomplish the change. (1) An insurance certificate shall contain the following required provisions: (a) name the City of Corpus Christi and its officers, employees, board members and elected representatives as additional insureds for all applicable coverage; (b) provide for 30 days notice to the City for cancellation, non -renewal, or material change; (c) provide that notice of claims shall be provided to the Finance Director by certified mail; and (d) provide that the terms of the municipal consent which impose obligations on the provider concerning liability, duty, and standard of care, including the indemnity section, are included in the policy and that the risks are insured within the policy terms and conditions. (C) A provider shall file and maintain proof of insurance with the Finance Director during the term of a municipal consent or an extension or renewal. An insurance certificate obtained in compliance with this section is subject to City approval. The City may require the certificate to be changed to reflect changing liability limits. A provider shall immediately advise the City Attorney of actual or potential litigation that may develop that would affect insurance coverage related to a municipal consent. (D) An insurer has no right of recovery against the City. The required insurance policies shall protect the provider and the City. The insurance shall be primary coverage for losses covered by the policies. 7JRB0624.109 EXHIBIT A 12 (E) The policy clause "Other Insurance" shall not apply to the City of Corpus Christi where the City is an insured under the policy. (F) The provider shall pay premiums and assessments. A company which issues an insurance policy has no recourse against the City for payment of a premium or assessment. Insurance policies obtained by a provider must provide that the issuing company waives all right of recovery by way of policy. § 20 INDEMNITY (A) PROVIDER agrees to INDEMNIFY AND HOLD CITY, ITS OFFICERS AND EMPLOYEES, HARMLESS against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney's fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to, personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought that may ARISE OUT OF OR BE OCCASIONED OR CAUSED BY PROVIDER'S NEGLIGENT ACT, ERROR, OR OMISSION OF PROVIDER, ANY AGENT, OFFICER, DIRECTOR, REPRESENTATIVE, EMPLOYEE, AFFILIATE OR SUBCONTRACTOR OF PROVIDER, AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS AND REPRESENTATIVES while in the exercise of or performance of the rights or duties under the Municipal Consent. The indemnity provided for in this paragraph shall not apply to any liability resulting from the negligence of City, its officers or employees, in instances where such negligence causes personal or bodily injury, death, or property damage. IN THE EVENT PROVIDER AND CITY ARE FOUND JOINTLY LIABLE BY A COURT OF COMPETENT JURISDICTION, LIABILITY SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other persons or entity. (B) Provider shall promptly advise the City, in writing of any claim or demand against the City or Provider known to Provider related to or arising out of Provider's activities under the Municipal Consent. § 21 RENEWAL OF MUNICIPAL CONSENT A provider shall request a renewal or a new consent by making written application to the Finance Director at least six months before the expiration of the consent. § 22 PRIVACY OF CUSTOMER INFORMATION A provider shall comply with state and federal law regarding privacy of customer information. 71IRB0624.109 EXHIBIT A 13 § 23 MINORITY-OWNED AND WOMEN -OWNED BUSINESSES CONTRACTING GOALS To the extent a provider has not implemented a company plan to promote minority and women -owned business enterprise participation in procurements related to the provision of telecommunication services, the provider shall develop and implement plans to establish a program. § 24 ANNEXATION; DISANNEXATION Within 30 days following the date of passage of any action affecting any disannexation or annexation, the Engineering Director shall notify providers of this action by furnishing to the providers maps of the affected area(s), showing the new boundaries of the City. The effective date for any change to the municipal consent fee for such area shall be the effective date of the imposition of local sales taxes as determined by the comptroller of public accounts. § 25 UNAUTHORIZED USE OF PUBLIC RIGHTS-OF-WAY The City Manager and City Attorney shall institute appropriate legal action to prevent any use of the public rights-of-way in violation of this policy, and obtain compensation therefor. 26. A person who has a telecommunications franchise on the effective date of this policy is exempt from the first application fee that would otherwise be required for an amendment, extension or renewal of the franchise. 27. This policy takes effect upon passage. ATTEST: City Secretary MAYOR THE CITY OF CORPUS CHRISTI APPROVED THIS THE DAY OF , 1997. JAMES R. BRAY JR., CITY ATTORNEY 7JRB0624.109 EXHIBIT A 14 Corpus Christi, Texas day of , 19 The above resolution was passed by the following vote: Loyd Neal Jaime Capelo Melody Cooper Alex L. Garcia, Jr. Arnold Gonzales Betty Jean Longoria John Longoria Edward A. Martin Dr. David McNichols 7JRB0624.109 EXHIBIT A 15 i State of Texas County of Nueces } } PUBLISHER'S AFFIDAVIT CITY OF CORPUS CHRISTI ss: Ad # 1390460 PO # Before me, the undersigned, a Notary Public, this day personally came Darrell G. Coleman, who being first duly sworn, according to law, says that he is Vice - President and Chief Financial Officer of the Corpus Christi Caller -Times, a daily newspaper published at Corpus Christi in said County and State, generally circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that the publication of, NOTICE OF PASSAGE OF ORDINANCE ON FIRST READING...GRATING A 60 -DAY FRANCHISE AND A TWO-YEAR FRANCHISE TO SOUTHWESTERN BELL TELEPHONE COMPANY which the annexed is a true copy, was inserted in the Corpus Christi Caller -Times on 15TH day(s) of JUNE, 1997. ONE (1) Time(s) $85.14 \\�NlE HARq.s� � �.. c) . ppY PUg;•• -G � tlt Ca d,- unto oagifir Vice -President and Chief Financial Officer Subscribed and sworn to before me this 23RD day(s) of June, 1997. Notary Public, Nueces County, Texas CONNIE HARALSON Print or Type Name of Notary Public My commission expires on 5/14/01.