HomeMy WebLinkAbout022580 ORD - 05/21/1996AN ORDINANCE
AN ORDINANCE GRANTING TO CSW COMMUNICATIONS, INC. A
NON-EXCLUSIVE ONE-YEAR 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 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,CSW Communications, Inc. (Sometimes referred to as "CSWC") 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, CSWC 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 CSW COMMUNICATIONS, INC., (hereinafter "Grantee"), pursuant to Article
IX of the Charter of the City of Corpus Christi, to construct, maintain and operate in, over, under and
across those portions of public rights-of-way in the City of Corpus Christi, Texas (hereinafter, 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 1 year, to
commence upon the 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 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
MICROFILMEti
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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 losses,
claims, suits, demands, expenses, subrogations, attorney'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 the Grantee by this franchise.
SECTION 5. FEES. (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 $5000.00 due and payable upon acceptance of 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 $3000.00 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
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by Grantee in the operation of its telecommunications 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 the 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 for the
first four quarters following acceptance of this ordinance, and $10,000 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 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 receipts" 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 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,
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8. all revenues from authorized rental of conduit space,
9. 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 the 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 Comptroller, no later than 4 months after the end of the Grantee's fiscal year, a statement of
revenues (for that year) attributable to the operations of the 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 more 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, 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 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 holders of franchises similar to this
franchise.
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(b) 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.
(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.
(i) 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 the Grantee.
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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 the 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 the Grantee for any damages related to such work, nor shall the City be
liable to the 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 the 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 the Grantee described herein. In the event that the City plans to close or
abandon any right-of-way which contains any existing Grantee facilities, 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 the 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 Grantees 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 the Grantee,
the 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 from such right-of-way. If the
City requires the 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 the 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, the Grantee has not, prior to the beginning of construction by the City, relocated its affected
facilities within the rights-of-way after being afforded a reasonable length of time to do so as
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determined by the City's Director of Engineering (sometimes also referred to herein as 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 the Grantee with reasonable notice of failure to act and request
relocation. If the Grantee continues to delay, the City's Director of Engineering or other designee
and the Grantee's Division Manager over outside plant engineering and construction will jointly
review the relocation request in an 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's Director of Engineering or other designee shall provide not Tess than five (5) days
written notice to the Grantee's Division Manager over outside plant engineering and construction
advising the 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, the Grantee continues to delay,
the City shall have the right to effect relocation of the affected facilities and the Grantee shall
reimburse the City for all costs of such relocation. The City shall not be liable to the 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 Engineering determines that it is necessary
to prevent disruption of a City project. Such relocation will be accomplished by means of temporary
construction and in a manner which will not unreasonably disrupt telecommunications services. The
City shall make every effort to coordinate with the Grantee prior to such necessary relocations and
will not attempt to relocate such facilities until the City has exhausted the foregoing procedures. The
Grantee shall ultimately be responsible for the final permanent relocation of the Grantee's facilities.
(b) The Grantee, at its sole cost and expense, shall provide to the City for noncommercial
intergovernmental purposes four pair (eight strands), of single mode fiber (dark) in each cable
installed by the Grantee throughout the portion of the backbone network used for transmission
purposes. The Grantee shall promptly provide to the City OTDR reports upon request by the City.
In addition, the Grantee shall provide at the 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 Director of
Engineering, and 2) any necessary facilities to accomplish the interconnection of City
telecommunications services.
(c) In addition to lateral lines provided pursuant to subsection (b), the Grantee shall
construct laterals, up to 100 feet at Grantee's expense, to connect five City buildings to the backbone
network. The 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.
The City will provide at its expense the necessary multiplex and terminal equipment at City
sites to allow the City to access the Grantee's network. The City shall have the right to connect
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directly to the Grantee's network in any manner technologically feasible so long as the City's use of
its fibers do not interfere with Grantees 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 the Grantee's
network.
The equipment installed at the City's facilities shall be integrated into the Grantee's network
monitoring and control system, and the Grantee shall report all failures of the network or equipment
affecting the City telecommunication traffic to the designated City representative. In 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 cavy traffic, the 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.
In the event that 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.
(d) Where 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.
(e) The City reserves the right to obtain bids from vendors, other than Grantee and other
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, operate, lease, maintain, repair and replace the telecommunications
facilities in a manner that will not unreasonably interfere with use of the streets, alleys, or any public
property or other public ways ("Public Way"). Should the owner of existing poles place their
facilities underground, Grantee shall do likewise.
(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 or other property of the City damaged by any of the operations of the 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 City Engineer a written work description, including
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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
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 City Engineer. Before Grantee
performs any maintenance repairs, replacement or removal of facilities, Grantee shall give at least
thirty (30) days notice to City Engineer as to the time and location of the proposed construction,
repairs or replacement. Daily work schedules shall be provided to 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
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 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 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 appropriate 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.
(f) 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 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
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City Engineer may require a Surface Correction Bond, and Grantee agrees to provide such bond with
terms and conditions in the amount required by City Engineer. Public Way and other surfaces for a
period of two years from the date of completion of same. 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 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
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 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 City and in such manner as is found reasonably necessary by
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 City Engineer approves of some other type or fill or material. Grantee
shall notify 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, 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 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.
(1) 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, 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 City Engineer.
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(n) Upon completion of the construction, extension or replacement of the telecommunications
system for which a construction permit 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) 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. City Engineer may perform regulatory inspections of any facility from time
to time as he may deem appropriate for the safety of the public. 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 for 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 construction
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 involve new construction. The franchise fee shall be paid in lieu of any permit or regulatory
fees that would otherwise be required to be paid to 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.
(r) Grantee agrees to commence construction of the initial backbone of its fiberoptic system
within 12 months from the date of this franchise ordinance and complete such initial phase within two
years from the date of this franchise ordinance.
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 alter City Council has acted on such request. In the event the Grantee sells, assigns, transfers,
12
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 the 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 or to any
subsidiary of Grantee, 50% or more of the outstanding voting securities of which are owned, directly
or indirectly, by Grantee.
SECTION 10. RIGHT-OF-WAY CLOSURE. 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 limits. 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 franchise 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. NOTICE. 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
CSW Communications, Inc.
1705 Capital of Texas Highway, Suite 400
Austin, Texas 78746
or to such other persons or addresses as Grantee and the City may by written notice designate from
time to time.
SECTION 13. VIOLATIONS. (a) Upon evidence received by the City that any violation
of this franchise 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 finds 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 authored by law, including
13
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. In 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 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
14
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 City
of such notice. Upon such termination of this franchise, all rights and obligations of Grantee and 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 City or by action of City in accordance with its rights set forth in
subparagraph (a) above of this Section 14, City shall have the option of purchasing all facilities placed
within the public right of way by Grantee pursuant hereto, and upon City's exercise of such option,
all such facilities shall be and become the property of 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
occ—ions 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 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. 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.
15
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 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) The Grantee shall notify the Director of
Engineering 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. The
Grantee shall notify the Director of Engineering 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) The Grantee shall not permit any other telecommunications service provider to attach to
Grantee's poles, ducts, conduits, fiber optic cable, coaxial cable, wire, or other transmission media,
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 become null and void
unless Grantee's written acceptance in accord with Section 20 hereof shall be filed with the City Clerk
within thirty days from and after its effective date.
SECTION 25. SUCCESSOR FRANCHISES. In the event that the City approves one or
more additional franchises for Grantee to succeed this franchise, all payments and consideration
provided by Grantee under this franchise shall be credited to such successor franchise for the term
covered by this franchise.
PASSED AND APPROVED THIS 7---1 DAY OF
CITY OF CORPS CHRISTI
By:
City Secretary
1996.
Mayor
APPROVED AS TO FORM:
ACCEPTANCE
16
Accepted this c U, day of R2(t 1 , 1996, by CSW Communications, Inc., Grantee.
CSW COMMUNICATIONS, INC.
BY:
ITS: TYti &-"A c.i9 1 N9 DI r -e CRY—
STATE OF
COUNTY OF /rEaLs
This instrument was acknowledged before me on this 619d day of 1996, by
£,'/iiRm l7?arrcXO the V;ffr7'or , of CSW CO CATIONS, INC., a
corporation, on behalf of said corporation, Notary Public, State of —2-47„t; .
MELISSA L. CASTRO
Notary Public, State of Texas
My Commission Expires
OCT. 11, 1999
That the forego'ng ordinance was read for the first time and passed to its second reading on this the
23 day of riA , 19 (1,(et , by the following vote:
Mary Rhodes _at_ Betty Jean Longoria /�(tv)
Dr.Jack Best D John Longoria ataal l 0-
Betty Black __1, t , Edward A. Martin tti. \�L
Melody Cooper 4y -y- Dr. David McNichols
Tony Heldenfels RtfjiL1 f
That the foregoing ordinance wasAead for the second time and passed finally on this the 1 day
��ll (,I L, by the following vote:
Betty Jean Longoria ai,i 0
Dr.Jack Best art John Longoria A1 -v ;
Betty Black Lv
Edward A. Martin
Melody Cooper Dr. David McNichols A , C
Tony Heldenfels
PASSED AND APPROVED, this the 21 day of M., l 19 dl i' .
J
ATTEST:
Mary Rhodes (t-1
City Secretary MAYOR
TITY OF CORPUS CHRISTI
APPROVED: 2 1 DAY OF Pia , 19 q
JAMES R. BRAY, JR., CITY ATTORNEY
By d'tAJ
i�• J
City it
\forms\046
PUBLISHER'S AFFIDAVIT
State of Texas, } CITY OF CORPUS CHRISTI
County of Nueces } ss: Ad # 638606
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. 022580
& 022581 which the annexed is a true copy, was published in the Corpus Christi Caller -Times
on the 26TH day(s) of MAY. 1996.
ONE (1) Time(s)
$ 85.10
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7.t;
Vice -President and Chief Financial Officer
Subscribed and sworn to before me this 3RD day of
,TUNE. 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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EXHIBIT "A"
CITY OF CORPUS CHRISTI
TELECOMMUNICATIONS FRANCHISE FEE PAYMENT FORM
IN ACCORDANCE WITH ORDINANCE NO.
CORPUS CHRISTI, TEXAS
I. 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.
(al Total Gross Receipts' (as defined in Section 5 of The Franchise) received this
calendar quarter are $ X 5% =
(Period includes 199 to 199_3
lb) Fees due from receipts derived from Customers outside the City served by
Grantee's network or facilities should be computed as follows:
Total mileaoe of eetwork/facilities lathe City
Total mileage of network/facilides in the Clty +
mileage of additional facilities outside the City
X s (revenue outside the City)
X 596=$
Total Due City: (a) + Ib) an $
*Attached is a detailed ),sting of revenue in accordance with the FCC Chart of
Account 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 bean 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 -
11. Annual Administrative Fee: The Annual Administrative Fee of $
is due on each anniversary date.
STATE OF TEXAS
COUNTY OF
1
1
1
BEFORE ME, the undersigned authority, on this day personae* appeared
stated that he is who being by me duiy.sworn on his oath
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 Paymem Form is
true and COMM 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 terms of this Franchise {and knows of no Person that is using or
plan to use any Public Way in a manner that would necessitate auch Person to acquire
a franchise from the Cityj
NOTARY PUBLIC, STATE OF TEXAS
SWORN AND SUBSCRIBED before me on
NOTARY PUBLIC. STATE OF TEXS
This Is a form only and is not meant .to alter, change, modify - — - or interpret the Franchise.
OAWPDOCS1108555100011FORM001.CAW11106851659
-2-
Period Ending:
Franchisee:
ATTACHED 70 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 5.089) 47 CFR Part 32
Nstvvork Access Services Revenue
(5080 - 5084)
Long Distance Revenue
(5010 - 51691
Miscellaneous Revenues
(5230 - 5270)
Non Regulated Revenues
(5280)
Uncollectible
TOTAL
Franchise Fee (Ql S% of Gross Revenue
This is a "government record" as that term is defined in TEX. PENAL CODE ANN. i
37.01 (Vernon, 19551-
•1Prepare a separate sheet on revenues out of the City.)
O AWPDOCS\108555t00011FORMOOI . CAWS 1106951731
EXHIBIT B
Dear
This Company's Franchise with the City of Corpus Christi in Section 22 provides:
(a) The Grantee shall notify the Director of Engineering 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. The Grantee shall notify the Director of
Engineering 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) The Grantee shall not permit any other telecommunications service provider to attach
to Grantee's poles, ducts, conduits, fiber optic cable, coaxial cable, wire, or other
transmission media, 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.
Sincerely,