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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)
(a) Within thirty (30) days after written notification of the award of a license or franchise by the city, the selected applicant shall deposit with the finance director of the city, and maintain on deposit throughout the term of the license or franchise agreement, a security deposit in the sum of fifty thousand dollars ($50,000.00) in cash or in the form of a letter of credit, bond, or alternative form of security acceptable to the city as security for the faithful performance by the licensee or franchisee of all provisions of this chapter and the license or franchise agreement and compliance with all orders, permits and directions of any agency or department of the city having jurisdiction over the licensee's or franchisee's operations.
(b) Within fifteen (15) days after written notice to the licensee or franchisee by the city that the city has withdrawn any amount or taken other steps to draw upon the security in the security deposit, the licensee or franchisee shall deposit or pay to the finance director a sum of money or other alternative form of security sufficient to restore such security deposit to the original amount of fifty thousand dollars ($50,000.00).
(c) If the licensee or franchisee fails to pay the city any moneys due within the time fixed in this chapter or the license or franchise agreement; or fails after ten (10) days' written notice to pay to the city any taxes due and unpaid; or fails to repay to the city within ten (10) days' written notice any damages, penalties, costs or expenses which the city may be compelled to pay by reason of any act, omission or default of the licensee or franchisee; or fails, after ten (10) days' written notice, to comply with any provision of this chapter or the license or franchise agreement which the city reasonably determines can be remedied or partially cured by an expenditure or calling of the security within the security deposit, the finance director may immediately withdraw or call the amount thereof, with interest and any penalties, from the security deposit. Upon such withdrawal, the finance director shall in writing notify the licensee or franchisee of the amount and date thereof. In the event the security deposit is insufficient to pay the city for any compensation, damage, penalties, costs or expenses owing to the city pursuant to this chapter or the license or franchise agreement, the performance bond may be drawn upon by the city for any amount due the city over and above the amount held in the security deposit.
(d) The security deposit, including any interest that may have accrued, shall become the property of the city in the event that a license or franchise agreement is terminated by the city by reason of a violation of this chapter or breach of the license or franchise agreement pursuant to the provisions of section 7B-18 ("Renewal and Termination").
(e) Upon application to the city, the licensee or franchisee shall be entitled to the return of all moneys or other form of security remaining in the security deposit, including accrued interest, at the expiration of the license or franchise agreement or any renewal thereof, provided there is then no outstanding default or moneys owing on the part of the licensee or franchisee to the city.
(f) The rights reserved to the city with respect to the security deposit are in addition to all other rights of the city, whether reserved by the license or franchise, this chapter or authorized by law; and no action, proceeding or exercise of a right with respect to such security deposit shall affect any other right the city may have.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 9, 7-10-95)
(a) Unless a license or franchise provides otherwise, as compensation for the rights and privileges herein conferred, licensee/franchisee shall pay to the city each calendar quarter during the term of this agreement a quarterly payment equal to five (5) percent of the total quarterly gross receipts (as defined below) received by the licensee/franchisee for services provided to customers within the corporate limits of the city from the provision of competitive telecommunications service within the city. During the initial fifteen (15) month buildout period or until licensee's/franchisee's core system is operational, the minimum fee payable hereunder shall be not less than three thousand dollars ($3,000.00) per quarter for the first four (4) quarters following execution of this agreement, and ten thousand dollars ($10,000.00) per quarter for every quarter thereafter. The quarterly payments required by this section shall be due and payable not later than noon of 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 at noon on the last preceding business day prior to the last day of the month. The compensation set forth in this subsection (a) shall be exclusive of, and in addition to, any application fees or election costs or other costs established by the Code, chapter 7B, and all special assessments and taxes of whatever nature, including, but not limited to, business privilege, and ad valorem taxes. Notwith-standing the foregoing sentence, all license or franchise fees paid by licensee or franchisee pursuant to this section shall be credited towards the payment of the public utility tax levied pursuant to article III of chapter 19 of this Code. In the event any quarterly payment is not timely made, licensee/franchisee shall pay a late payment penalty of the greater of: (i) one hundred dollar ($100.00) per day or (ii) simple interest at ten (10) percent annual percentage rate of the total amount past due. As used in this section, gross revenues shall be as defined in section 7B-2, "gross annual revenues" of this chapter.
(b) Payment of money under this section shall not in any way limit or inhibit any of the privileges or rights of the city under any license or franchise or otherwise.
(c) Licensee/franchisee shall file annually with the city finance director, no later than four (4) months after the end of the licensee/franchisee's fiscal year, a statement of revenues (for that year) attributable to the operations of the licensee/franchisee's network within the city pursuant to this agreement. This statement shall present, in a form prescribed or approved by the city, a detailed breakdown of gross revenues and uncollectible accounts for the fiscal year. This statement shall be audited at no cost to the city by a certified public accountant chosen by licensee/franchisee 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 licensee/franchisee shall reimburse the city for reasonable costs of such additional audit as determined by the city in the event the audit determines that additional revenues are due and owing to the city.
(d) Any transactions which have the effect of circumventing payment of required license or franchise fees and/or evasion of payment of license or franchise fees by noncollection or nonreporting of gross receipts, bartering, or any other means which evade the actual collection of revenues for business pursued by licensee/franchisee are prohibited.
(e) For the purpose of securing to the city the payments of license or franchise fees that may be owed, the city may require a licensee/franchisee to provide city with a bond, letter of credit or other evidence of security agreeable to city approximating the amount of license or franchise fees to be paid by licensee/franchisee for a two (2) year period. In the event of any default by licensee/franchisee in the payment of required license or franchise fees, such security shall be reviewed by city and a greater level of security agreed to and established for the remainder of the term of the license or franchise.
(f) For the further purpose of securing to the city the license or franchise fee payments that may be owed, the city shall have a lien and the same shall be a charge upon all of the property, estate, and effects of the licensee or franchisee, whatsoever, real, personal, or mixed, provided, however, that such lien shall remain inchoate until notice of default has been given by the city to the licensee or franchisee pursuant to section 7B-18 of this chapter, the licensee or franchisee has failed to take appropriate steps to remedy the default, and the city has filed an appropriate civil action to enforce such lien. Such lien shall be subordinate to any mortgage or deed of trust securing any bona fide indebtedness. The foregoing does not limit the city's rights to enforce the terms of a license and franchise as otherwise provided in chapter 7B of the Code.
(g) Nothing in this section shall be interpreted to require payment of any fee, or agreement to any franchise or license fee that the city is prohibited from enforcing under A.R.S. § 9-582.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 10, 7-10-95; Ord. No. 9911, 11-10-03)
Notwithstanding the provisions of section 7B-26, licensees for long distance competitive- access service who do not meet the twenty (20) linear mile limitation contained in section 7B-36 of this chapter but who connect only to interstate telecommunication carrier points of presence and to no other connection within the city may, as an alternative to the license fees specified in section 7B-26, pay a fee for each linear foot of installation within city rights-of-way on a basis determined by the mayor and council at the time of the granting of the license.
(Ord. No. 9444, § 1, 8-7-00; Ord. No. 10317, § 1, 9-12-06)
(a) Without limitation upon the rights which the city might otherwise have, the city does hereby expressly reserve the following rights, powers and authorities:
(1) To exercise its governmental powers now or hereafter to the full extent that such powers may be vested in or granted to the city.
(2) To determine any question of fact relating to the meaning, terms, obligations or other aspects of this chapter and the license or franchise agreement.
(3) To grant multiple nonexclusive licenses or franchises within the city to other persons for the operation of systems pursuant to this chapter.
(4) To inspect and supervise all construction or installation work performed by the licensee or franchisee.
(b) The city hereby expressly reserves the right to amend any section or part of this chapter for any reason determined to be desirable or necessary by the mayor and council in the exercise of its legislative powers, including, but not limited to, new developments in the state of the technology of the communications industry and changes in federal or state laws, rules or regulations, provided that any such amendments are reasonable. Such amendments shall be adopted only after a public hearing where the licensee or franchisee shall have received written notice at least thirty (30) days prior to the hearing and is provided an opportunity to be heard.
(c) Nothing in this chapter shall be deemed or construed to impair or affect the right of the city to exercise its power of eminent domain to acquire the property of the licensee or franchisee at a fair and just value, which shall not include any amount for the license or franchise itself or any privilege thereunder.
(d) The city reserves the right, during the term of the license or franchise agreement, to install and utilize, upon the pole attachments and conduits of the licensee or franchisee, any wire or pole fixtures required for municipal purposes, without cost to the city so long as such installation and utilization does not interfere with the operation of the system. If such utilization causes the utility to whom the licensee's or franchisee's equipment is attached to incur costs or expenses, the licensee or franchisee shall bear all such costs actually incurred by such utility.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 11, 7-10-95)
The licensee or franchisee shall not deny service, access or otherwise discriminate against subscribers, users or any resident of the city. In this regard, the licensee or franchisee shall comply with the human relations provisions of this Code, section 17-21, incorporated herein by this reference. The licensee or franchisee shall strictly adhere to the equal employment opportunity requirements of the FCC. The licensee or franchisee shall comply at all times with all other applicable federal, state and City laws, rules and regulations, and all executive and administrative orders relating to nondiscrimination.
(Ord. No. 8522, § 1, 6-12-95)
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