HomeMy WebLinkAbout022551 ORD - 04/23/1996Multi -Year
AN ORDINANCE
AN ORDINANCE GRANTING TO AMERICAN COMMUNICATIONS
SERVICES OF CORPUS CHRISTI, INC. A NON-EXCLUSIVE
FRANCHISE TO CONSTRUCT, MAINTAIN, AND OPERATE IN
DESIGNATED PORTIONS OF PUBLIC RIGHTS-OF-WAY
TELECOMMUNICATION FACILITIES FOR THE PURPOSE OF
PROVIDING SERVICES WITHIN THE CITY AND FUTURE ADDITIONS
THERETO.
WHEREAS, the City of Corpus Christi, Texas (hereinafter the "City") has the authority
to manage control and receive compensation for the use of all public rights of ways within the
City under state law and under its City charter; and
WHEREAS, the City has the authority to establish requirements and conditions to
safeguard the rights of its citizens and to maintain the integrity and conditions of public rights
of ways; and
WHEREAS, American Communications Services of Corpus Christi, Inc. (sometimes
referred to as "ACSI") has requested a franchise from the City to use the City's rights of ways
to provide telecommunication services; and
WHEREAS, as a condition of receiving this franchise, ACSI has agreed to the above
mentioned "Whereas" clauses and to abide by the conditions and requirements as set forth herein
and by the City's current and future policies, ordinances and regulations regarding the use of
its rights of ways, and by the provisions regarding the use of its public rights of ways, such
agreement being evidenced by their formal acceptance of the franchise.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CORPUS CHRISTI:
SECTION 1. GRANT OF NON-EXCLUSIVE FRANCHISE. A non-exclusive
franchise is hereby granted to AMERICAN COMMUNICATIONS SERVICES OF CORPUS
CHRISTI, INC., (hereinafter "Grantee"), pursuant to Article IX of the Charter of the City, to
construct, maintain and operate in, over, under and across those portions of public rights-of-way
in the City, telecommunication facilities within the City and future additions thereto, for the
purpose of providing telecommunication services. The duration of such franchise shall be a
period of 7 years, to commence 60 days following passage and approval of this Ordinance by
the City Council; provided that, nothing in this Ordinance shall be construed as granting to
Grantee an exclusive franchise for the purposes herein set forth. When used herein, the term
"facilities" shall mean all or any part of a network of fiberoptic telecommunication cables and
all related property including conduit, carrier pipe, cable fibers, repeaters, power sources, and
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other attachments and appurtenances necessary for fiberoptic communication, and located within
the City's right-of-way.
SECTION 2. GENERAL TERMS. Grantee, for the duration of this franchise and the
purposes hereinabove expressed, shall have the privilege to construct, operate and maintain
underground conduits, subways and vaults, and place wires and cables therein and to make any
and all necessary excavations therefor, in, over, under and across all or any of the portions of
streets, alleys, avenues and public ways of the City, and to utilize, with permission of the
affected utility companies, their facilities within public rights-of-way including poles, for the
purpose of providing telecommunication services within the City, to be exercised in such manner
only, however, as to offer the least interference with the public use of said streets, alleys,
avenues and public ways, and Grantee shall be subject to and shall comply with all laws, charter
provisions and ordinances of the City and shall be further subject to and shall comply with all
rules, regulations and other restrictions of the City. For purposes of Chapter 49 of the Code
of Ordinances concerning Streets and Sidewalks, Grantee shall be deemed to be a public utility
company with all the privileges and obligations therein stated. The granting of this franchise
shall not prohibit the City from granting other non-exclusive franchises or otherwise allowing
or making other uses of the City's rights-of-way.
SECTION 3. AUTHORIZATION. Grantee shall not provide services directly regulated
by the Texas Public Utility Commission (the "PUC") under the Public Utility Regulatory Act
unless authorized by the PUC. Grantee shall not provide, nor allow another to use its facilities
to provide, in an area subject to the jurisdiction of the City, cable services or operate a cable
system as defined in the Cable Communications Policy Act of 1984 (47 U.S.C.A. §521, et seq.
as amended) or as recognized by the Federal Communications Commission (the "FCC") without
first obtaining a separate cable franchise from the City.
SECTION 4. INDEMNIFICATION. Grantee hereby agrees to indemnify, defend and
save harmless the City, its mayor and council members, appointed boards and commissions,
officials, officers, employees, attorneys and insurance carriers, individually and collectively,
from all tosses, claims, suits, demands, expenses, subrogations, attomey's fees, or actions of
any kind and nature resulting from personal injury to any person, including employees of
Grantee, or of any contractor or subcontractor employed by Grantee, (including bodily injury
and death) or damages to any property, arising or alleged to have arisen out of the acts of
Grantee, its contractors, subcontractors, officers, agents and employees while exercising any of
the rights or privileges granted by this franchise. The amount and type of insurance coverage
requirements set forth herein will in no way be construed as limiting the scope of indemnity in
this paragraph. Grantee further agrees and shall have the right to appear, defend, indemnify and
hold harmless the City in any action, claim or suit challenging the grant of or any of the rights
conferred upon Grantee by this franchise.
SECTION 5. FFFS. (a) Acceptance Fee and Transfer Fee: As the City has incurred
certain administrative cost in processing this franchise application, Grantee agrees to pay a
processing and acceptance fee to the City in the $5,000.00 due and payable upon acceptance of
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the Ordinance by Grantee, a processing and acceptance fee of $10,000.00 shall also be due and
payable upon any transfer, sale or assignment of this franchise in accordance with Section 9.
(b) Annual Administrative Fee: As the City will incur ongoing cost in the administering
of this franchise, Grantee further agrees to pay an annual administrative fee to the City of
$3,000.00 due and payable on each anniversary date from the effective date of this ordinance
during the term of this franchise.
(c) Annual Franchise Fee: For the reasons that the public streets, alleys, and rights of
ways to be used by Grantee in the operation of its telecomuunications system and in the placing
of its facilities within the boundary of the City, are valuable public properties, acquired and
maintained by the City at great expenses to its taxpayers, and because the grant to Grantee of
the non-exclusive right to use said public streets, alleys and public rights of ways, is a valuable
property right, Grantee agrees to pay the City as compensation during each year of this
Ordinance, an annual franchise fee as described herein.
(d) Amount of Franchise Fee: As compensation for the rights and privileges herein
conferred, Grantee shall pay to the City each calendar quarter during the term of this franchise
a quarterly payment equal to five percent (5 %) of the total quarterly gross receipts (as defined
below) received by Grantee for services provided to customers within the corporate limits of the
City, and within the City's industrial districts as defined in Texas Local Government Code §
42.044, from the operation of Grantee's telecommunication network within the City, but not less
than $3,000.00 for the first four quarters following acceptance of this ordinance, and $10,000.00
for every quarter thereafter. This quarterly payment required by this ordinance shall be due and
payable not later than the last day of the month following the quarter for which payment is due.
If the last day of the month following the quarter for which payment is due falls on a weekend
or holiday, then the payment is due on the next business day following the last day of the month.
The compensation set forth in this Section shall be exclusive of, and in addition to, any
Construction Permit Fees for new construction as described herein in Section 8 and all special
assessments and taxes of whatever nature, including, but not limited to, ad valorem taxes. In
the event any quarterly payment is not timely made. Grantee shall pay a late payment penalty
of the greater of: (i) $100.00 or (ii) simple interest at ten percent (10%) annual percentage rate
of the total amount past due. As used in this Section, gross receipts shall mean all revenues
derived directly or indirectly by Grantee from the operation of Grantee's telecommunications
network installed pursuant to this franchise and all revenues derived by Grantee, directly or
indirectly, from the telecommunications services provided in whole or in part by means of
Grantee's telecommunications network or by way of Grantee's facilities. "Gross receipt" shall
also include a proportionate share of revenues derived from customers outside the City's limits
served by means of the telecommunications network or facilities of Grantee. Such proportionate
share shall be determined dividing the total mileage of the telecommunications network or
facilities of grantee in the city by the sum of the total telecommunications network or facilities
mileage of Grantee in the City and the mileage of additional facilities of Grantee outside the City
necessary to serve its customers outside the City. "Gross receipts" shall not include the revenue
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uncollected from customers. Without limiting the foregoing, gross receipts by way of example,
shall include, but not be limited to the following:
1. all telecommunications service revenues charged on a flat rate basis,
2. all telecommunications services charged on a usage sensitive or mileage basis,
3. all revenues from installation service charges,
4. all revenues from connection or disconnection fees,
5. all revenues from penalties or charges to customers for checks returned from
banks, net of bank costs paid,
6. all revenues from equipment sold or rented to customer upon customer premises,
7. all revenues from local and a proportion of long distance full rate service,
8. all revenues from authorized rental of conduit space,
S. all revenues from charges for access to local and a proportion of long distance
networks,
10. all revenues from any leases or sub -leases of any portion of Grantee's network,
including plant, facilities, or capacity leased to others for cable television services
or any other purpose,
11. all other revenues collected by Grantee from business pursued within the City,
12. all recoveries of bad debts previously written off and revenues from the sale or
assignment of bad debts, and
13. franchise fees.
Quarterly payments shall be accompanied by a statement, certified by an officer of
Grantee, that sets forth the gross receipts for the quarter and the fee paid.
Payment of money under this Section shall not in any way limit or inhibit any of the
privileges or rights of the City whether under this franchise or otherwise. Grantee shall file
annually with the City's Director of Finance, no later than 4 months after the end of Grantee's
fiscal year, a statement of revenues (for that year) attributable to the operations of Grantee's
network within the City pursuant to this franchise ordinance. This statement shall present in a
form prescribed or approved by the City for use by all holders of franchises similar to this
franchise, a detailed breakdown of gross revenues and uncollectible accounts for the fiscal year
in substantially the form as attached in Exhibit A. This statement shall be audited at no cost to
the City by a certified public accountant chosen by Grantee whose report shall accompany the
statement. The City may cause an additional audit to be performed by an auditor selected by
the City not mote frequently than every third year and Grantee shall reimburse the city for
reasonable costs of such additional audit as determined by the City. Any transactions which
have the effect of circumventing payment of required franchise fees and/or evasion of payment
of franchise fees by non -collection or non -reporting of gross receipts, bartering, or any other
means which evade the actual collection of revenues for business pursued by Grantee are
prohibited.
SECTION 6. INSURANCE. (a) Grantee shall obtain and maintain in full force and
effect throughout the term of this franchise ordinance, and any extension or renewal thereof,
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insurance with an insurance company licensed to do business in the State of Texas, and
acceptable to the City. The insurance shall be issued in the standard form approved by the State
Board of Insurance. Grantee shall provide the City with proof of such insurance so required at
the time of filing the acceptance of franchise, as required herein. The City reserves the right
to review these insurance requirements during the effective period of the franchise ordinance,
and any extension or renewal thereof, and subject to the proviso next following, to adjust
insurance coverages and their limits when deemed necessary and prudent by the City in the
exercise of reasonable judgment based upon changes in statutory law, court decisions or the
claims history of the industry or of Grantee; provided any such adjustment may be made by the
City only if such adjustment is made effective to all hciders of franchises similar to this
franchise.
(h) Subject to Grantee's right to maintain reasonable deductibles and self-insured
retention, the insurance policy required by this section shall provide that the insurer will defend
against all claims and lawsuits which arise and pay any final judgment of a court of competent
jurisdiction against the City, or Grantee or the agents, servants, officers or employees of either
for damages or injuries resulting from the acts of Grantee, or Grantee's agents, servants, or
employees pursuant to this franchise. The maximum amount recoverable under such policy shall
be not less than $250,000 for each person and $500,000 for each single occurrence for bodily
injury or death and $100,000 for each single occurrence for injury to or destruction of property.
(c) The City shall be entitled, upon request and without expense, to receive copies of
the policies and all endorsements thereto. The City may make any reasonable requests for
deletion, revision or modification of particular policy terms, conditions, limitations or
exclusions, which are necessary for the policy to provide the coverage required in this Section
6, except where policy provisions are established by law or regulation binding upon either city
or Grantee or upon the underwriter for any of such policies. Upon request for deletion, revision
or modification by the City, Grantee shall exercise reasonable efforts to accomplish the changes
in policy coverages, and shall pay the cost thereof.
(d) Grantee agrees that with respect to the above required insurance, all insurance
contracts will contain the following required provisions:
(i) The City and its officers, employees, board members and elected
representatives shall be named as an additional insured (as the interests of each may
appear) as to all applicable coverage;
(ii) Contracts shall provide for thirty days notice to the City prior to cancellation,
revocation, non -renewal, or material change;
(iii) Notice required by this section shall be delivered to the City Secretary by
certified mail; and
(iv) All provisions of the franchise ordinance, as amended, concerning liability,
duty, and standard of care, including the indemnity, of this franchise ordinance, shall be
underwritten by contractual coverage sufficient to include such obligations within
applicable policies.
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(e) Insurers shall have no right of recovery against the City, it being the intention that
the insurance policies shall protect Grantee and the City and shall be primary coverage for all
losses covered by the policies.
(f) The policy clause "Other Insurance" shall not apply to the City to the extent the City
is an insured on the policy.
(g) Companies issuing the insurance policies shall have no recourse against the City for
payment of any premiums or assessments which are the sole risk of Grantee.
SECTION 7. RELOCATION AND CITY USE OF GRANTEE FACILITIES. (a)(1) As
a further consideration for the granting of this franchise, Grantee, in conjunction with the
requirements of any City project shall at its sole expense make such relocations of its facilities
within City rights-of-way or take other steps as may be necessary to facilitate such City project.
Such relocations shall be under the same terms and conditions as the initial installation allowed
pursuant to this franchise.
(2) The City reserves the right to lay, and permit to be laid, sewer, gas, water, and
other pipe lines or cables and conduits, including telecommunications and cable television lines,
and to do and permit to be done any underground and overhead work that may be deemed
necessary or proper by the City, in, across, along, over, or under any right-of-way occupied by
Grantee, and to change any curb or sidewalk or the grade of any street. In performing or
permitting such work to be done, the City shall not be liable to Grantee for any damages related
to such work, nor shall the City be liable to Grantee for any damages not proximately caused
by the City's sole negligence, provided, however, nothing herein shall relieve any other person
or corporation from liability for damage to facilities of Grantee.
(3) In the event that the City authorizes abutting landowners to occupy space under the
surface of any street, alley, highway, or public place, such grant to an abutting landowner shall
be subject to the rights of Grantee described herein. In the event that the City plans to close or
abandon any right-of-way which contains any existing Grantee facilities, the City shall (1) give
notice of the date the city council is to consider the closure or abandonment, (2) if requested by
Grantee, reserve a continuing right for Grantee's facilities, and (3) make any subsequent
conveyance of land involved in the closure or abandonment subject to the specific right of
continued occupancy by Grantee or require the beneficiaries of the closure or abandonment to
pay the costs associated with relocation of Grantee's facilities to alternate acceptable locations.
(4) Whenever it shall be necessary to require Grantee to alter, change, adapt, or conform
its facilities within the right-of-way, such alterations or changes shall be made promptly, with
consideration given to the magnitude of such alterations or changes, without claim for
reimbursement or damages against the City. If any such requirements impose a financial
hardship upon Grantee, Grantee shall have the right to present alternative proposals to the City,
and the City shall give due consideration to any such alternative proposals. It is understood and
further provided, however, that the City shall not require Grantee to remove its facilities entirely
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from such right-of-way. If the City requires Grantee to adapt or conform its facilities to enable
any other entity or person, except the City, to use, or to use with greater convenience, or rights-
of-way, Grantee shall not be required to make any such changes until such other entity or person
shall reimburse or make arrangements satisfactory to Grantee to reimburse Grantee for any loss
and expense caused by or arising out of such change; provided, however, that the City shall
never be liable for such reimbursement.
(5) For public improvement projects where, after notification that facility relocation is
required, Grantee has not, prior to the beginning of construction by the City, relocated its
affected facilities within the rights-of-way after being afforaed a reasonable length of time to do
so as determined by the City Engineer, or other designee of the city Manager, giving
consideration. to the scope of the facility relocation, and when such delays are not caused by
actions of the City, the following procedure will be followed. The City shall provide Grantee
with reasonable notice of Failure to act and request relocation. If Grantee continues to delay,
the City Engineer or other designee and Grantee's P°vision Manager over outside plant
engineering and construction will jointly review the relocation request in ar_ expeditious manner
to establish a mutually acceptable completion date for the relocation. If the grantee continues
to delay or does not meet the revised completion date, the City Engineer or other designee shall
provide not less than five (5) days written notice to Grantee's Division Manager over outside
plant engineering and construction advising Grantee of the City's intent to effect the relocation
of the affected facilities. If after expiration of the written notice required by the preceding
sentence, Grantee continues to delay, the City shall have the right to effect relocation of the
affected facilities and Grant": shall reimburse the City for all costs of such relocation. The City
shall not be liable to Grantee for any damage to such facilities unless proximately caused by the
City's gross negligence, and shall not be liable in any event for any consequential damages
relating to service interruptions. Such relocation by the City will be performed only when the
Director of Public Works determines that it is necessary to prevent disruption of a City project.
Such relocation will be accomplisher', by means c` temporary construction and in a manner which
will not unreasonably disrupt telecommunications services. The City shall make every effort to
coordinate with Grantee prior to such necessary relocations and will not attempt to relocate such
facilities until the City has exhausted the foregoing procedures. Grantee shall ultimately be
responsible for the final permanent relocation of Grantee's facilities.
(b) Grantee, at its sole cost and expense, shall provide to the City for noncommercial
intergovernmental purposes four pail (eight strands), of single mode fiber (dark) in each cable
installed by Grantee throughout the portion of the backbone network used for transmission
purposes. Grantee shall promptly provide to the City OTDR reports upon request by the City.
In addition, Grantee shall provide at Grantee's cost to be reimbursed by the City, 1) lateral lines
connecting the City's locations to the backbone network as required by the City's Director, and
2) any necessary facilities to accomplish the interconnection of the City telecommunications
services.
(c) In addition to lateral lines provided pursuant to subsection (b), Grantee shall
construct laterals, up to 100 feet at Grantee's expense, to connect five City buildings to the
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backbone network. Grantee is required to provide such lateral connections within a reasonable
time of request. Such City buildings must be identified in writing. The City shall reimburse
Grantee for all costs incurred by Grantee attributable to that portion of such lateral lines
constructed beyond 100 feet of Grantee's network. In addition, Grantee shall splice the City's
dark fibers to the backbone network, and terminate same into a fiber patch panel provided by
Grantee at each of the five City sites.
(d) The City will provide at its expense the necessary multiplex and terminal equipment
at City sites to allow the City to access Grantee's network. The City shall have the right to
connect directly to Grantee's network in any manner technologically feasible so long as the
City's use of its fibers do not interfere with Grantee's use of the remainder of the facilities. The
City shall also have the right to interface the City's microwave system for transport across and
delivery on Grantee's network.
(e) The equipment installed at the City's facilities shall be integrated into Grantee's
network monitoring and control system, and Grantee shall report all failures of the network or
equipment affecting the City telecommunication traffic to the designated City representative.
'n the event of an equipment or network failure (other than failure caused by an act of God) that
affects the City's telecommunication traffic or ability to carry traffic, Grantee shall (a) report
the outage to the City within one hour, and (b) use its best efforts to restore service to the City
at the same time it restores service to its other customers.
(f) L, the event :hat Grantee is not able to notify the City or restore the services within
these time lines, this will not be a basis for forfeiture or termination of the Franchise under
Sections 13 or 14. Grantee shall not be responsible for any direct or indirect or consequential
costs or damages of the City relating to the failure of the free services, equipment and fiber
provided to the City by Grantee under this Agreement, and in consideration; for these free
services, fiber and equipment the City does hereby expressly release Grantee from all such costs
and damages.
(g) Whet the City Council finds that use of the facilities by another governmental
agency serves the public purpose, the City may make facilities reserved for the City available
to such agency on terms and conditions not inconsistent herewith.
(h) The City reserves the right to obtain bids from vendors, other than Grantee and ether
franchisees.
SECTION 8, USE OF CITY PROPERTY.
(a) All facilities shall be underground unless placed on existing poles of another utility.
Grantee shall lay, construct, t)erate, lease, maintain, repair and replace the telecommunications
facilities in a manner that wil'. not unreasonably interfere with use of the streets, alleys, or any
public property or other public ways ("Fublic Way"). Should the owner of existing poles place
their facilities underground, G-antee shall do likewise.
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(b) Grantee shall at its own expense repair, to the satisfaction of the City, all City -owned
water lines, storm and sanitary sewer lines, service lines, water meters, streets, sidewalks,
curbs, gutters cr other property of the City damaged by any of the operations of Grantee, its
contractors, subcontractors, employees, agents or assigns engaged in pursuant to this franchise.
(c) Before Grantee constructs, extends or replaces the telecommunications facilities in
any Public Way, it shall apply for and acquire a construction permit and pay all fees associated
with same in accordance with this Section 8, and file with the City Engineer a written work
description, including scale drawings, showing the facility's location (or proposed location) and
estimated depth of the facilities (existing and proposed). Such drawings and specifications shall
be prepared, executed and sealed by a registered professional engineer. Such drawings and
specifications will be reviewed by the City Engineer and any comments will be provided to
Grantee within thirty (30) days. Grantee agrees to make any changes to the drawings and
specifications requested by the City Engineer. Before Grantee performs any maintenance
repairs, replacement or removal of facilities, Grantee shall give at least thirty (30) days notice
to the City Engineer as to the time and location of the proposed construction, repairs or
replacement. Daily work schedules shall be provided to the City Engineer by 8:30 a.m. each
day any construction, repair or replacement of facility by Grantee is performed. When an
emergency occurs that involves the facilities, repairs shall be performed by Grantee and notice
shall be given to the City Engineer within twenty-four (24) hours following initiation of such
emergency repairs. Approval of all non -emergency construction, repair and replacement of the
facilities must be obtained prior to such construction, repair and replacement, unless otherwise
provided. Such approval shall not be unreasonably withheld or delayed. Approval by the City
Engineer shall constitute full authority for the issuance of permits.
(d) All work in the Public Way and other surfaces will be performed in accordance with
the City specifications and regulations for Street and Storm Drainage & Street Paving
Construction and be subject to regulation, control and direction of the City Engineer. All work
done in connection with the laying, construction, operation, maintenance, repairing and
replacement of the facilities, in whole or in part, shall be in compliance with all applicable laws,
ordinances, rules and regulations of the City, County, the State of Texas, and the United States.
(e) Grantee shall belong to the same underground utility locating system as the City.
Prior to beginning any excavation trenching or digging using powered equipment or hand tools
which may damage existing underground facilities, Grantee shall contact all appropriat.
underground utility coordinating systems and determine if there are any facilities in the vicinity
of the proposed activities. If physical contact is made with another facility during any
excavation, trenching or digging, the owner of that facility must be notified for inspection and
repairs prior to Grantee continuing work. Grantee shall promptly respond to requests for line
locations generated from other franchised or City -owned utilities.
(1) When Grantee performs or causes to be performed any work on any Public Way, or
so closely adjacent thereto as to create hazards for the public or themselves, Grantee, its
employees, agents or its contractor, shall provide construction and maintenance signs and
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sufficient barricades and flagmen at work sites to protect the public, equipment and workmen.
The application of such traffic control devices shall be consistent with the standards and
provisions of the latest addition to the Texas Manual on Uniform Traffic Control Devices.
Appropriate warning lights shall be used at all construction and maintenance zones where one
or more traffic lanes are being obstructed during nighttime conditions.
(g) Grantee shall repair, clean up and restore the Public Way and other surfaces
disturbed during the construction and repair of its facilities and shall warrant the repairs and
restoration of such Public Way and other surfaces for a period of two years from the date of
completion of same. The City Engineer may require a Surface Correction Bond, and Grantee
agrees to provide such bond with terms and conditions and in the amount required by the City
Engineer. Such repairs, clean up and restoration shall return the Public Way and other disturbed
surfaces to substantially the same condition they were in before Grantee's work began. The
determination that the Public Way and other surfaces have been returned to substantially the
same condition shall be made by the City Engineer.
(h) Grantee shall refill, and repave any cut in any pavement. All excavations made by
Grantee in any portion of a Public Way for the purpose of constructing, operating, maintaining,
repairing, replacement or removing a facility, or any part thereof, shall be in accordance with
City standards. If, after refilling such excavation, the earth within the excavated area settles so
as to leave a depression, Grantee may be required to make further necessary fills from time to
time as ordered by the City Engineer. Grantee shall repair all portions of any Public Way
across, along, over, above or under which a facility is laid and place the same in as good a state
of repair and condition as they were in at the time the construction repair, or removal was
commenced. Such repairs shall be to the satisfaction of the City Engineer.
(i) Repair to the Public Way or other City property necessitated by any activity of
Grantee shall be made by Grantee at no cost to the City and in such manner as is found
reasonably necessary by the City Engineer.
(j) Any excavation in any portion of a Public Way shall be replaced with materials of
the same kind as those removed unless the City Engineer approves of some other type or fill or
material. Grantee shall notify the City Engineer before commencing at any time excavation in
any portion of any Public Way, and shall not wholly close any Public Way, but shall at all times
maintain a route of travel along and within any roadway that is within a Public Way, except that
in cases of emergency, the City Engineer may authorize a temporary closing of any Public Way
or sidewalk in order to take care of any break, leakage or other public safety risk if, in the
opinion of the City Engineer, such closing is necessary to protect the safety of the public.
(k) If Grantee fails to commence or thereafter to diligently prosecute any repair, refilling
or other work required under this franchise the City may cause the work to be done at the
expense of Grantee and may recover all such expense from Grantee together with all costs and
reasonable attorney fees.
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(1) The City shall have the power at any time to order and require Grantee to remove
or abate any facility that is dangerous to life or property, and in the event Grantee fails or
refuses to comply after reasonable notice, the City shall have the power to remove or abate such
facility at the expense of Grantee, all without compensation or liability for damages to Grantee.
(m) Grantee shall coordinate all such construction, repair or replacement with the City
Engineer.
(n) Upon completion of the construction, extension or replacement of the
telecommunications system for which a construction penatt has been acquired, Grantee shall
provide the City as -built drawings within 60 days. Accuracy of as -built drawings shall meet a
survey level of accuracy of 1 foot to 50,000 feet. The drawings shall also be supplied in DXF
computer file format with the location tied to one nearby GPS (Global Positioning System) City
Monument. If the total length of the construction extension or replacement exceeds 1,000 feet
in length within the City, it shall be tied to at least two GPS City Monuments.
(o) The City Engineer shall have the power to make such other reasonable rules and
regulations for the placement and manner of such facilities as he may deem appropriate for the
protection of the public and the Public Ways and to avoid unreasonable interference with other
uses or contemplated uses of the Public Ways. The City Engineer may perform regulatory
inspections of any facility from time to time as he may deezn appropriate for the safety of the
public. The City Engineer shall give five days prior written notice to franchise as to the time
and date of any such inspections. Grantee shall have the right to have a representative present
during such inspection.
(p) When submitting an application tor a construction permit as provided in this Section
8, Grantee agrees to pay the permit fees provided herein. Such permit fees are in addition to
the franchise fees stipulated in Section 8 and are non-refundable. Each application for a
:onstruction permit shall be accompanied by a non-refundable drawing and specification review
fee of a minimum of $200.00 plus $0.20 per linear foot for lengths in excess of 1,000 linear feet
("Construction Permit Fee"). This Construction Permit Fee is only required for new
construction and encroachments and for renewals, extensions or amendment of existing permits,
and is not required for review of plans associated with routine maintenance or repair of existing
facilities when such repairs or maintenance do not iz.volve new construction. The franchise fee
snail be paid in lieu of any permit or regulatory fees that would otherwise be required to be paid
to the City, except the Construction Permit Fee.
(q) No construction permit shall be granted to Grantee unless and until all fees due and
payable pursuant to this franchise have been paid in full, including any fees due and payable for
such construction permit.
(q) Grantee agrees to commence construction of the initial backbone of its fiberoptic
system within twelve (12) months from the date of this franchise ordinance and complete such
initial phase within two (2) years from the date of this franchise ordinance.
12
SECTION 9. NON -ASSIGNMENT. The rights granted by this franchise shall not be
assigned to any other entity without the express prior written consent of the City which shall not
be unreasonably withheld. A written request for consent to such assignment must be filed with
the City, and any required consent shall be evidenced by an ordinance of the City that fully
recites the terms and conditions, if any, upon which consent is given. The City will not proceed
with its options under Section 14 hereof, and no forfeiture of this franchise pursuant to Section
13 or Section 14 shall become effective or be enforced, after Grantee has filed a written request
for consent to assignment until after the City Council has acted on such request. In the event
Grantee sells, assigns, transfers, conveys or otherwise disposes of any of its rights or its interests
under this franchise ordinance, in violation of this requirement to obtain prior consent, the City
may, pursuant to Section 13, revoke this franchise for default, in which event all rights and
interests of Grantee shall cease and no purported sale, assignment, transfer or conveyance shall
be effective. The foregoing assignment and transfer provisions shall not apply to an assignment
to any parent company of Grantee cr to any subsidiary of Grantee, 50% or more cf the
outstanding voting securities of which are owned, directly or indirectly, by Grantee.
SECTION 10. ABANDONMENT OF RIGHT OF WAY. In the event that the City
closes or abandons any public right-of-way which contains any existing facilities of Grantee, any
conveyance of land containing such closed or abandoned street, alley, highway or public place
shall be subject to the rights of Grantee described in this franchise.
SECTION 11. INFORMATION. The City shall have the right to be kept fully
informed as to matters pertaining in any way to Grantee's exercise of its privileges under this
franchise, including operation, construction, excavation, installation, maintenance and repair of
facilities installed within the City iimits. Grantee shall keep complete and accurate maps,
construction drawings and specifications describing the location of facilities installed within the
City. Maps, construction drawings and specifications kept by Grantee in accordance with this
franchise shall provide for separate and specific identification of those facilities of the system
that are located in the public rights-of-way. Any and all maps, construction drawings and
specifications required by this f. anchise shall be kept and maintained within the City limits. The
City shall have the right to inspect and copy such maps, construction drawings and specifications
and Grantee shall fully cooperate in making available its maps, construction drawings and
specifications for inspection.
SECTION 12. NOTICES.Any notice or communication required in the administration
of this franchise shall be sent overnight delivery or certified mail as follows:
City of Corpus Christi
1201 Leopard Street
P. O. Box 9277
Corpus Christi, Texas 78469
Attn: City Manager
13
Notice to Grantee will be sent to:
Ms. Riley M. Murphy
Executive Vice President
Legal and Regulatory Affairs
American Communications Services, Inc.
131 National Business Parkway, Suite 100
Annapolis Junction, Maryland 20701
cc: John D. Bell
Wood, Boykin & Wolter, P.C.
615 Upper North Broadway, Suite 1100
Corpus Christi, Texas 78477
or to such other persons or addresses as Grantee and the City may by written notice designate
from time to time.
SECTION 13. DEFAULT. (a) Upon evidence received by the City that any violation
of this franchiEe ordinance, any City Charter provisions or any ordinances lawfully regulating
Grantee in the construction and operation of its network is occurring, or has occurred, the City
shall cause an Investigation to be made. If the City fmds that such a violation exists or has
occurred, Grantee shall take appropriate steps to cure such violation. Should Grantee fail to
comply, alter reasonable notice and opportunity to cure, then the City may take any action
authorized by law, including forfeiture of this franchise and a suit in court to compel
compliance. If, in any such proceeding, default is finally established, Grantee shall be required
to pay to the City the reasonable expenses incurred in the prosecution of such suit and all the
City's damages and costs, but Grantee shall be allowed, either by the court in the judgment of
forfeiture or by order of the City Council, a reasonable time thereafter, as fixed by such
judgment or order, to correct the default and pay such expense, damages and costs as it may be
adjudged to pay; and if Grantee does so correct and so pay within such time, forfeiture shall not
become effective nor be enforced.
(b) The City is entitled to obtain such injunctive relief as is necessary to halt any conduct
by Grantee in violation of this franchise agreement or Ordinance, and to such other regulatory
and court ordered relief as the City may prove itself entitled. L^ the event the City proves itself
entitled to injunctive or such other relief, Grantee shall pay all costs for such regulatory or court
proceedings, including all attorneys' fees, expert witnesses, and other expenses incurred by the
City in investigation and prosecution of the action.
SECTION 14. FORFEITURE AND TERMINATION. (a) In addition to all other
rights and powers retained by the City under this franchise ordinance, the City reserves the right
to forfeit and terminate this franchise ordinance, and all rights and privileges of Grantee
hereunder shall cease in the event of substantial breach, subject to reasonable notice and
14
opportunity to cure as described in Section 13.A substantial breach by Grantee shall include, but
shall not be limited to, the following:
(i) Grantee's violation of any material provision of the franchise ordinance or any
material rule, order, regulation or determination of the City made pursuant to this
franchise ordinance;
(ii) Grantee's failure to properly compensate the City as required in this franchise
ordinance;
(iii) Grantee's attempt to evade any material provision of the franchise or to
practice any fraud or deceit upon the City or upon Grantee's end-user customers or
interexchange carriers;
(iv) Grantee's sale, transfer, conveyance or assignment of any of the rights and
privileges granted pursuant to this franchise ordinance in violation of Section 9;
(v) Grantee's failure to respond to or comply with the City's requests for reports
and other information as to which Grantee is obligated under the terms of this franchise
to respond to or comply with.
(vi) Grantee's failure to operate its network for six months during any twelve
month period after it has been become operational.
(b) The foregoing shall not constitute a substantial breach if the violation occurs without
the fault of Grantee or occurs as a result of circumstances beyond its control. Grantee shall not
be excused by mere economic hardship, nor misfeasance or malfeasance of its directors, officers
or employees.
(c) At any time during the term of this franchise, Grantee may terminate this franchise
upon giving the City 90 days prior written notice of Grantee's election to terminate,
accompanied by payment in cash to the City of an amount equal to the product of the minimum
quarterly payment then pertaining under Section 5 of this franchise multiplied by four (4).
Notice and payment having been so made by Grantee, this franchise shall terminate on the
ninetieth day following the delivery to the City of such notice. Upon such termination of this
franchise, all rights and obligations of Grantee and the City under this franchise shall terminate
and this franchise shall be of no further force or effect, and Grantee shall be entitled and
required to abandon its facilities in place, without further responsibility or liability therefor.
(d) Upon the expiration of the term of this franchise, or upon its sooner termination by
the joint agreement of grantee and the City or by action of the City in accordance with its rights
set forth in subparagraph (a) above of this Section 14, the City shall have the option of
purchasing all facilities placed within the public right of way by Grantee pursuant hereto, and
upon the City's exercise of such option, all such facilities shall be and become the property of
T
15
the City subject to and upon payment to Grantee of the then fair market value thereof as
determined by a panel of qualified appraisers one of whom shall be selected by each party and
the third by the two so selected. At its sole option, in lieu of acquiring the facilities, the City
may order Grantee, at no cost to the City, to remove its facilities from the public right-of-way
and restore the surface to its original condition or, upon a finding by city Council that the public
interest so requires, allow Grantee to abandon its facilities in place.
SECTION 15. FAILURE TO ENFORCE. Grantee shall not be excused from complying
with any of the terms and conditions of this franchise by any failure of the City on one or more
actions to enforce compliance with such terms and conditions.
SECTION 16. POLICE POWERS. Grantee shall comply with all applicable general
laws and ordinances enacted by the City pursuant to its police powers.
SECTION 17. INTERPRETATION. Interpretation of this franchise and the rights and
duties created hereunder shall be pursuant to the Constitution and laws of the State of Texas and
the Charter and ordinances of the City.
SECTION 18. SEVERABILITY. The provisions of this franchise are severable and
if any provision, sentence, clause, section or part thereof shall be held illegal, invalid, or
unconstitutional or inapplicable to any person or circumstance, such illegality, invalidity,
unconstitutionality or inapplicability shall not affect or impair any of the remaining provisions,
sentences, clauses, sections or parts of this franchise or their application to other persons and
circumstances.
SECTION 19. MODIFICATIONS. All terms and conditions of this franchise are
contained herein and any modifications shall be in writing and approved by ordinance except as
otherwise expressly provided herein.
SECTION 20. ACCEPTANCE. Grantee shall, within thirty (30) days alter the effective
date of this franchise ordinance, file in the office of the City Secretary, a written instrument
accepting this franchise ordinance and all terms and conditions thereof, signed and acknowledged
by its proper officers in a form acceptable to the City. Grantee shall not commence
construction, operation or activation of its network until providing the City with the insurance
and acceptance required herein.
SECTION 21. PREEMPTION. No provision of this franchise or ordinance shall be
deemed void or unenforceable as a result of state or federal preemption unless and until so
determined by a final, non -appealable order of a state or federal agency or court.
SECTION 22. INTERCONNECTIONS. (a) Grantee shall notify the City Engineer at
least thirty (30) days prior to Grantee's interconnection to or use of the telecommunications
network or right of way of any other telecommunications service provider. Use or
interconnection with an unfranchised telecommunications service provider is prohibited. Grantee
16
shall notify the City Engineer at least thirty (30) days prior to any telecommunications service
provider interconnecting to or using Grantee's facilities or telecommunications network. Use
of Grantee's facilities or telecommunications network by an unfranchised telecommunications
provider is prohibited.
(b) Grantee shall not permit any other telecommunications service provider to attach to
Grantee's poles, ducts, conduits, or to otherwise use Grantee's right of way until such
telecommunications service provider has first obtained a franchise for such attachment or use
from the City. Grantee shall notify such customers of these requirements by letter substantially
similar to Exhibit B attached hereto.
SECTION 23. PUBLICATION. Grantee shall pay all costs of publication of notice of
this Ordinance as required by the City Charter.
SECTION 24. EFFECTIVE DATE. This franchise ordinance shall take effect sixty
(60) days following its final adoption by the City Council, but shall become null and void unless
Grantee's written acceptance in accord with Section 20 hereof shall be filed with the City
Secretary within thirty days from and after its effective date.
PASSED AND APPROVED THIS 23 DAY OF %hl I , 1996.
CITY OF CORPUS CHRISTI
City Secretary
APPROVED AS TO FORM:
Ji&r'1
City A rney
Com^ c
Mayor '�
17
ACCEPTANCE
Accepted this / 9 day of yt,664-�z9--- , 1996, by American Communications
Services of Corpus Christi, Inc., Grantee.
AMERICAN COMMUNICATIONS SERVICES OF CORPUS CHRISTI, INC.
BY:
Its: E\ S4 ram*. t
STATE OF
0
COUNTY OF (-lLv&e_. 6L e)
This instrument was acknowledged before me on this I 41 day of kU4.kQLk.-- , 1996,
by [L, j e 1 M M uvptti j the Fa/ Sar,ve fn-��r , of American Communication Services
of Corpus Christi, I1ic., corporation, on behalf & said corporation.
F:\11 WGMT.9641CSI.090-11
thaiLeto
-Notary Public, of
MICHELLE D. SHINE
Notary Public. State of Maryland
°unified in Anne Arundel County
Commission Expires July 21. 1999
EXHIBIT "A"
CITY OF CORPUS CHRISTI
TELECOMMUNICATIONS FRANCHISE FEE PAYMENT FORM
IN ACCORDANCE WITH ORDINANCE NO.
AMERICAN COMMUNICATION SERVICES OF CORPUS CHRISTI, TEXAS
1. Franchise Fee: The Franchise Fee is due quarterly, but not later than the last
day of the month or next business day if that is a holiday, following the quarter
for which the payment is due.
la) Total Groan Receipts- (as defined in Section 5 at me Franchise) received this
calendar quarter are $ X 596 = $
(Period includes 199_ to _, 199 )
(b) Fees due from receipts derived from customers outside the City served by
Grantee's network or facilities should be computed as follows:
Total 'release of network/facilities in the City
Total mileage of network/facilities in the City +
mileage of additional facilities outside the City
X 5 (revenue outside the City)
X 596=:
Total Due City: (a) + (b) = $
'Attached Is a detailed listing of revenue in accordance with the FCC Chart of
Accounts by revenue accounts and records sent to State Comptroller's Office on
telecommunications sales tax evidencing revenue collected in Corpus Christi. In the
event of any revenue, any customer or any accounts have been excluded or exempted,
those revenues, those accounts and the names of those customers shall be listed in
detail, 'together with a detailed explanation of the exclusion.
-1-
Il. Annual Admnlstrative Fee: The Annual Administrative Fee of S
is due on each anniversary date.
STATE OF TEXAS
COUNTY OF BEXAR
BEFORE ME, the undersigned authority, on this day personally appeared
Who being by me duly sworn on his oath
stated that he is of
the
Franchisee named and referred to Within this Franchise; that he is fully competent and
authorized to give this affidavit and that the attached Franchise Fee Payment Form is
true and correct and in accordance with the requirement in Section 5 of the Franchise
that he is personally familiar with, and has reviewed recently: that Franchisee has fully
complied with the tertns of This Franchise (and knows of no Person that is using or
plan to use any Public Way in a manner that would necessitate such Person to acquire
a franchise from the City.)
NOTARY PUBLIC, STATE OF TEXAS
SWORN AND SUBSCRIBED before me on
NOTARY PUBLIC, STATE OF TEXAS
• This Is a form only and is not meant to alter, change, modify or interpret the Franchise.
0:IWPDOCS1108555100011F0 RM001.CAAW11106951659
-2-
Period Ending:
Franchisee:
ATTACHED TO FRANCHISE FEE PAYMENT FORM
Revenues in City of Corpus Christi (Report should be filed separately for Franchisee
and each agent and assign).*
Local Service Revenue
(5.000 to 5.069) 47 CFR Part 32
Network Access Services Revenue
(5080 - 5084)
Long Distance Revenue
(5010 - 5169)
Miscellaneous Revenues
(5230 - 5270)
Non Regulated Revenues
(5280)
Uncollectible
TOTAL
Franchise Fee @ 5% of Gross Revenue
This is a "government record' as that term is defined in TEX. PENAL CODE ANN. *
37.01 (Vernon, 1995)_
*(Prepare a separate sheet on revenues out of the City.)
0:1WPDOCS1106555100011FORM001. CAW11106951731
T
That the foregoing ordinance was read for the first time and passed to its second reading on this the
26 day of , 19 C 47 , by the following vote:
Mary Rhodes
Dr.Jack Best
Betty Black
Melody Cooper
Tony Heldenfels
Betty Jean Longoria
John Longoria
Edward A. Martin
Dr. David McNichols
That the, $oregoing ordinance was red for the second time and passed finally on this the 23 day
of (,"l,I , 19 9 , by the following vote:
Mary Rhodes
Dr.Jack Best
Betty Black
Melody Cooper
Tony Heldenfels
PASSED AND APPROVED, this the 23 day of
ATTEST:
Betty Jean Longoria
John Longoria
Edward A. Martin
Dr. David McNichols
APPROVED: 2 3 DAY OF At r 1 , 19 I (, :
JAMES R. BRAY, JR., CITY ATTORNEY
\forms\046
anc-
19 qip.
ITY OF CORPUS CHRISTI
PUBLISHER'S AFFIDAVIT
State of Texas, } CITY OF CORPUS CHRISTI
County of Nueces } ss: Ad # 532056
PO #
Before me, the undersigned, a Notary Public, this day personally came Darrell G. Coleman,
wh; !;eing 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 Patrick), Victoria, and Webb
Counties, and that the publication of NOTICE OF PASSAGE OF ORDINANCE ON FIRST
READING...GRANTING A ONE-YEAR FRANCHISE AND A SEVEN-YEAR FRANCHISE
TO THE FOLLOWING COMPANIES: 1) AMERICAN COMMUNICATION SERVICES OF
CORPUS CHRISTI. INC: AND 2) KMC SOUTHEAST CORP. which the annexed is a true
copy, was published in the Corpus Christi Caller -Times on the 31ST day(s) of MARCH. 1996.
ONE (1) Time(s)
$ 142.45
Cr • H!t R,9 "
l '
'V: A CI, .• 0
•"-
/et
Vice -President and Chief Financial Officer
Subscribed and sworn to before me this 24TH day of
APRIL. 1996.
'/6l AL -4
Notary Public, Nueces County, Texas
CONNIE HARALSON
Print or Type Name of Notary Public
My commission expires on 5/14/97.
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State of Texas, }
County of Nueces }
PUBLISHER'S AFFIDAVIT
CITY OF CORPUS CHRISTI
ss: Ad # 584517
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 NOS. 022550,
022551. 022552. AND 022553 which the annexed is a true copy, was published in the Corpus
Christi Caller -Timet on the 28TH day(s) of APRIL. 1996..
ONE (1) Time(s)
$ 92.50
,001111111111,,,,
Ykit, tso -,,
tsnot oi
Vice -President and Chief Financial Officer
Subscribed and sworn to before me this 8TH day of
MAY. 1996.
Notary Public, Nueces County, Texas
CONNIE HARALSON
Print or Type Name of Notary Public
My commission expires on 5/14/97.
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