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Compliance with construction codes.
(1) Construction practices shall be in accordance with all applicable provisions of the Occupational Safety and Health Act of 1970 and any amendments thereto as well as all applicable laws, rules and regulations of the state and the city, including but not limited to requirements of the city in regard to various electrical wiring necessary to the operation of city functions, including but not limited to traffic-control signalization, street lighting, fire lines and communications lines.
(2) All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the applicable provisions of the current editions of the National Electrical Safety Code as published by the Institute of Electrical and Electronics Engineers, the National Electrical Code of the National Fire Protection Association, and all state and local codes where applicable.
(3) Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the United States Department of Transportation and all other applicable laws, rules and regulations of the state and the city.
(Ord. No. 8522, § 1, 6-12-95)
As a condition of granting a license or franchise to a licensee or franchisee hereunder, the city may require that such licensee or franchisee agree to make available at no cost to the city such dark fibers and spares in any cable or bundle of fibers hung or emplaced by such licensee or franchisee as the city may reasonably need to satisfy municipal telecommunications requirements. The licensee or franchisee shall bring such fibers to a board, block, or pedestal such as to be readily accessible and usable by the city, as determined by the department of information services and at no cost to the city, unless otherwise provided in the terms of a specific license or franchise agreement. In addition, the license or franchise may specify that certain telecommunications services and other facilities be provided to the city at licensee's or franchisee's cost, or at a discount from established prices, or on a most favored nation basis.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 5, 7-10-95)
(a) Renewal. At any time between the last five and twelve months before expiration of its existing license or franchise, the licensee or franchisee, as the case may be, may apply to the city for continuation of its existing authority to occupy the city streets and other municipal rights-of-way. If the applicant shows to the satisfaction of the city that it is in compliance with the terms of its existing instrument, the city may grant a five-year extension of the existing authorization, subject to the right of either party to renegotiate fees, conditions, and terms of access and subject to the approval of the voters of the city in the case of a franchise.
(b) Termination.
(1) The mayor and council may terminate the license or franchise agreement in the event of the violation of any material provision of this chapter or of any rule or regulation promulgated pursuant thereto or of any applicable federal, state or local law, or the material breach, failure, refusal or neglect by the license or franchisee to perform its obligations under the terms and conditions of the license or franchise agreement, except when such violation, breach, failure, refusal or neglect is directly caused by any of the following:
a. Acts of God;
b. Riots;
c. Emergencies declared by the President of the United States of America, the governor of the state or the mayor.
(2) Criteria for termination shall include, but in no event be deemed exclusive or limited to the following:
a. Attempt to dispose of any of the facilities or property of the system to prevent the city from purchasing it, as provided for in this chapter;
b. Attempt to evade any material provision of this chapter or the license or franchise agreement;
c. The practice of any fraud or deceit upon the city or subscribers or users;
d. Failure to begin or complete system construction or system extension pursuant to this chapter and the license or franchise agreement;
e. Failure to provide and maintain the types of services, facilities, equipment or personnel provided for in the license or franchise agreement and this chapter;
f. Material misrepresentation of fact in the license or franchisee's proposal or in the execution of the license or franchise agreement or in any reports required to be filed pursuant to this chapter;
g. Failure to timely make payment of any moneys due the city pursuant to this chapter.
(3) After providing the licensee or franchisee with notice and an opportunity to be heard and in the event that the mayor and council determine that the licensee or franchisee, by its acts or omissions has given the city cause for termination of the license or franchise agreement, the mayor and council may instruct the city manager to make written demand upon the licensee or franchisee for full compliance. If the violation, breach, failure, refusal or neglect is not or cannot be remedied to the satisfaction of the mayor and council within thirty (30) days following such demand, if made, the mayor and council may exercise the following options:
a. Direct the licensee or franchisee to comply within such additional time, in such manner and upon such terms and conditions as the mayor and council may direct.
b. Declare the license or franchise agreement terminated and of no further force and effect.
(4) If the mayor and council declare the license or franchise agreement terminated, the city may pursue any remedies available to the city pursuant to this chapter, including but not limited to the options stated in paragraph (b) of section 7B-18 ("Renewal and Termination"), the license or franchise agreement, or any other remedy available to the city as provided by law.
(c) Dismantle. In the event that the city exercises its option to require the licensee or franchisee to dismantle the system, the licensee or franchisee shall, in an expeditious manner, at its own expense and at the direction of the city, restore any property, public or private, to the condition in which it existed prior to the erection or construction of the system, including any improvements made to such property subsequent to the construction of the system.
(d) Abandonment. In the event the license or franchise granted hereunder shall terminate without renewal or substitution, or the licensee or franchisee shall permanently abandon operations of its telecommunications facilities in the city, the city, at its election, may require the licensee or franchisee to remove some or all of its facilities hereunder or may exercise its right of purchase under section 7B-19 below. The city, however, shall be deemed to have a possessory interest in facilities provided by the licensee or franchisee under section 7B-17 above, which possessory interest shall not be disturbed by licensee or franchisee without the city's consent.
(Ord. No. 8522, § 1, 6-12-95)
(a) Rights to purchase. In the event the city terminates the license or franchise agreement pursuant to any provisions of this chapter, or in the event the licensee or franchisee permanently abandons operation of its facilities within the city in whole or in part, the city shall have the first option, directly or as an intermediary, to purchase the system. The city shall have ninety (90) days prior to the effective date of expiration or termination to notify the licensee or franchisee and the utility to whom the licensee's or franchisee's equipment is attached of the city's intent to exercise the option to purchase stated herein.
(b) Valuation. In the event of a termination of the license or franchise agreement by the city, the value of the system shall be solely based on the book value of the tangible assets of the system. Upon normal expiration of the license or franchise agreement the value of the system shall be solely based on the fair market value of the tangible assets of the system.
(1) "Book value" is defined as the original or historical cost of the assets less accumulated depreciation.
(2) No value shall be assigned to either the license or franchise itself, the license or franchise agreement or any right, privilege or expectancy arising out of the privilege to transact business under the license or franchise and the license or franchise agreement nor shall any value be assigned to goodwill or as a going concern.
(3) "Valuation" as referred to above shall be determined by audit of system assets pursuant to generally accepted auditing principles, and shall be performed by a certified public accounting firm selected by the city at the licensee or franchisee's expense. In the event of permanent abandonment of all or some of licensee or franchisee's facilities by the licensee or franchisee, such facilities shall be valued pro tanto at zero dollars for the purposes of this section.
(c) Date of valuation. The date of valuation shall be the effective date of expiration or termination of the license or franchise agreement or abandonment of the facilities.
(d) Transfer to city. Upon exercise of the city's option to purchase and written notice of such action by the city upon the licensee or franchisee, the licensee or franchisee shall, immediately upon payment of the purchase price by the city, transfer to the city possession and legal title to all system facilities and property, both real and personal, free from any and all liens and encumbrances not agreed to be assumed by the city in lieu of a portion of the purchase price; and the licensee or franchisee shall execute such warranty deeds or other instruments of conveyance to the city as shall be necessary to effectuate this transfer.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 6, 7-10-95)
(a) In the case of a foreclosure or other judicial sale or termination of lease of the plant, property or equipment of the licensee and franchisee, or any part thereof, or any rights under the license and franchise agreement, the licensee and franchisee shall serve written notice upon the city of any such event; and the city may serve written notice of termination upon the licensee and franchisee and the successful bidder at such sale, in which event the license and franchise and the license and franchise agreement and all rights and privileges of the licensee and franchisee thereunder shall cease and terminate thirty (30) days after service of such notice, unless:
(1) The mayor and council have approved the transfer of ownership of the license and franchise, in accordance with all pertinent provisions of section 7B-21 ("Transfers and Assignments"); and
(2) Such successful bidder shall have covenanted and agreed with the city, in writing in a form approved by the city attorney, to assume and be bound by all the terms and conditions of this chapter and the license and franchise agreement.
(b) The city shall have the right to terminate the license and franchise agreement one hundred twenty (120) days after the appointment of a receiver, or trustee, to take over and conduct the business of the licensee and franchisee, whether in receivership, reorganization, bankruptcy or other related action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of one hundred twenty (120) days, or unless:
(1) Within one hundred twenty (120) days after their election or appointment, such receiver or trustee shall have fully complied with all the provisions of this chapter and the license and franchise agreement, and remedied any and all defaults or breaches thereunder; and
(2) Such receiver or trustee, within one hundred twenty (120) days, shall have executed an agreement, in a form approved by the city Attorney and duly approved by the court having jurisdiction over the proceedings, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this chapter and the license or franchise agreement.
(c) Failure to comply with the provisions of paragraph (a) of this section shall be deemed an unauthorized transfer pursuant to the provisions of section 7B-21 ("Transfers and Assignments").
(Ord. No. 8522, § 1, 6-12-95)
(a) The licensee or franchisee shall not sell, transfer, assign, exchange or release, or permit the sale, transfer, assignment, exchange or release of more than three (3) percent of the ownership of the system or rights in the license or franchise agreement to a person (hereinafter "proposed transferee"), without the prior written authorization of the mayor and council. For purposes of this section, a merger or consolidation shall be deemed a transfer or assignment.
A secured debt financing arrangement in which the lender assumes the ownership position of the licensee, but not the operation of the licensee's system, shall not be deemed a transfer or assignment pursuant to this section. However, no such lender may subsequently take over operation of the system without the prior written authorization of the city obtained pursuant to this section.
(1) In seeking prior written authorization, the licensee or franchisee shall have the obligation:
a. To inform the city as to whether the proposed transferee, which, in the case of a corporation, shall include all officers, directors, employees and all persons having a legal or equitable interest of five (5) percent or more of its voting stock, or any of the proposed transferee's principals:
1. Has ever been convicted of a crime relating to fitness, trustworthiness or competence including any felony, or any misdemeanor involving moral turpitude, including, but not limited to, criminal fraud or deceit, or is presently under an indictment charging such a crime;
2. Has ever had a judgment in an action for fraud, deceit or misrepresentation entered against it, her, him or them by any court of competent jurisdiction; or
3. Has pending any legal claim or lawsuit arising out of or involving a fiber optics or cable communications system.
b. To establish to the satisfaction of the city the financial solvency of the proposed transferee by submitting all current financial information of the proposed transferee which the licensee or franchisee was required to submit in its proposal for the license or franchise agreement, and such other financial data as the city may request.
c. To establish to the satisfaction of the city that the proposed transferee has the experience and ability to fully comply with all provisions of this chapter and the license or franchise agreement and to effectively operate and maintain the system.
(2) The mayor and council specifically reserve the right to deny, restrict or condition authorization to transfer upon the criteria stated in this section and any other criteria the mayor and council determine to be necessary in the public interest.
(b) Any proposed transferee shall execute an agreement, in such form acceptable to the city attorney, that it will assume and be bound by all of the provisions, terms and conditions of this chapter, the license or franchise agreement, and any other conditions the mayor and council may have required in granting authorization.
(c) The occurrence of an unauthorized transfer or assignment may, at the option of the city, provide the mayor and council with cause to immediately terminate the license or franchise agreement and accelerate all of the obligations and rights as provided in section 7B-18 ("Renewal and Termination").
(d) From and after any occurrence constituting an unauthorized transfer or assignment, the licensee or franchisee shall not make, execute or enter into any deed, deed of trust, mortgage, contract, conditional sales contract or any loan, lease, pledge, security agreement, sale, pole agreement or any other agreement or hypothecation concerning any system facilities or property, whether real or personal, without the written approval of the mayor and council.
(e) Nothing in this section shall be deemed to prohibit the use of the licensee's property as collateral for security in regard to construction financing. However, any such financing arrangements shall be subject to all provisions of this chapter and the license or franchise agreement.
(f) No person at any time shall directly or indirectly hold more than one license or more than one franchise under this chapter. Any person holding two or more such instruments of authorization shall promptly surrender all but one such instrument to the department of information services or the city may declare any or all of them forfeited.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 7, 7-10-95)
(a) The licensee or franchisee shall indemnify, save harmless and defend the city, its mayor and council, appointed boards and commissions, officers and employees, individually and collectively from all fines, liens, suits, claims, demands, actions, costs of litigation, attorneys' fees, judgments or liability of any kind (including but not limited to libel, slander, invasion of privacy, unauthorized use of any trademark, trade name or service mark, copyright infringement, injury, death or damage to person or property) arising out of or in any way connected with the installation, construction, operation, maintenance or condition of the system. The licensee or franchisee shall assume all risks in the operation of the system and shall be solely responsible and answerable for any and all accidents or injuries to persons or property arising out of the performance of the license or franchise agreement. The amounts and types of insurance coverage requirements set forth in section 7B-23 ("Insurance") shall in no way be construed as limiting the scope of indemnity set forth in this section.
(b) Should any of licensee or franchisee's facilities installed pursuant to this chapter be damaged or destroyed by the city, its agents, employees, contractors or subcontractors, the licensee or franchisee shall repair or replace such facilities at its own expense and shall waive any right, claim, or action for damages or other available remedies which it may have against the city, its agents, employees, contractors or subcontractors, except as to intentional, willful, or malicious damage to licensee or franchisee's property by city employees acting outside the scope of their employment or by other parties acting without the express consent of the city.
(Ord. No. 8522, § 1, 6-12-95)
Prior to the commencement of any operation, excavation or construction pursuant to a license or franchise, the license or franchisee shall file with the city manager and maintain in full force and effect throughout the term of the license or franchise agreement insurance policies issued by an insurer duly authorized to conduct business in this state, insuring with respect to the installation, construction, operation and maintenance of the system as follows:
(1) Comprehensive general and automobile liability coverage including, but not limited to: (1) blanket contractual liability; (2) completed operations liability; (3) broad form property damage endorsement, including but not limited to coverage for explosion, collapse and underground hazard; and (4) automobile non-ownership liability. This insurance shall be written in the following minimum amounts:
a. For bodily injury, including death: $500,000.00 combined single limit;
b. Property damage: $500,000.00 combined single limit;
c. Comprehensive automobile liability; bodily injury: $500,000.00 combined single limit;
d. Excess umbrella liability in the minimum amount of $10,000,000.00.
(2) Workers' compensation coverage as required by the laws, rules and regulations of this state.
(3) All insurance policies required herein shall include the city as an additional named insured.
(4) With respect to the insurance required herein, the license or franchisee shall be solely responsible for all premiums due and payable.
(5) The insurance policies required by this section shall contain the following endorsement:
It is hereby understood and agreed that this policy of insurance may not be canceled by the insurer nor the intention not to renew be stated by the insurer until sixty (60) days after receipt by the city, by registered mail, of written notice of such intent to cancel or not to renew.
(6) All insurance policies required to be procured herein shall be in a form approved by the city risk manager, and no licensee or franchisee may initiate or begin construction until such approval has been granted.
(7) Licensee or franchisee shall require of all its contractors and subcontractors the same insurance coverage including worker's compensation insurance in the amounts required by state law.
(Ord. No. 8522, § 1, 6-12-95)
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