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(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)
Performance bond. Within thirty (30) days after written notification of the award of a license or franchise by the city, the selected applicant shall file with the city a performance bond for the benefit of the city in the amount of one million dollars ($1,000,000.00) to be effective upon the execution of the license or franchise agreement and conditioned that in the event that the licensee or franchisee fails to comply with any provision of this chapter, the license or franchise agreement or other law applicable to the license or franchise, then there shall be recoverable jointly and severally from the principals and surety any and all damages or costs suffered or incurred by the city, including but not limited to attorney's fees and costs of any action or proceeding, and including the full amount of any compensation, indemnification, cost of removal or abandonment of any property or other costs due and owing the city up to the full principal amount of such bond. The performance bond shall be maintained in full as a continuing obligation during the period of network construction for licensee/franchisee's core network. The performance bond shall be issued by a surety company authorized to do business in this state and shall be in a form approved by the city attorney.
(1) The performance bond shall contain the following endorsement:
It is hereby understood and agreed that this bond may not be canceled by the surety nor the intention not to renew be stated by the surety until sixty (60) days after receipt by the city of Tucson, by registered mail, of written notice of such intent to cancel or not to renew.
(2) None of the provisions of this section or section 7B-25 ("Security Deposit"), nor any damages recovered by the city thereunder, shall be construed to excuse the faithful performance by or limit the liability of the licensee or franchisee.
(3) Upon application to the city, the licensee or franchisee shall be entitled to the return of the performance bond at the expiration of the license or franchise agreement or any renewal thereof, provided there is then no outstanding default or moneys due the city by the licensee or franchisee, and subject to license or franchisee's obligation to remove abandoned facilities under section. 7B-18 above.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 8, 7-10-95)
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