Sec. 17-153. - Contents of franchise agreement.
The franchise agreement shall contain the following provisions:
NON-EXCLUSIVE FRANCHISE AGREEMENT
This non-exclusive Franchise Agreement ("Agreement") is made as of the ________day of ________, 2018, by and between the City of Charleston, South Carolina, (the "City"), and ("___________"), a limited liability company authorized to do business within the State of South Carolina, and being incorporated in the State of _______.
RECITALS
WHEREAS, ___________ is a limited liability company duly organized and existing under the laws of the State of _______, which has been issued a Certificate of Convenience and Necessity from the Public Service Commission of South Carolina; and
WHEREAS, ___________ desires to construct, install and maintain Facilities within certain portions of the Public Rights-of-Way in portions of the City of Charleston; and
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein, the City and ___________ agree as follows:
DEFINITIONS
"Fiber Optic Facilities" means approved fiber optic cables, conduits, converters, splice boxes, cabinets, handholes, manholes, vaults, equipment, drains, surface location markers, appurtenances, and related facilities to be located by in the Public Rights-of-Way of the City as defined below.
"Law" means any local, South Carolina or federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff, guideline, standards or other requirement, as amended, now in effect or subsequently enacted or issued during the term of this Agreement, including, but not limited to, the Communications Act of 1934, as amended by the Telecommunications Act of 1996, Pub. L. No. 104-104 § 101(a), 110 Stat. 70 codified at 47 U.S.C. § 151, et seq., and all orders, rules, tariffs, guidelines and regulations issued by the Federal Communications Commission or the governing state authority pursuant thereto as applicable, all laws regulations and rules of the South Carolina Department of Transportation, and all rules, regulations and guidelines issued by the City.
"Public Rights-of-Way" means the surface and the area across, in, over, along, upon and below the surface of the public streets, roads, sidewalks, lanes, courts, ways, alleys, and boulevards, but shall not include other public property used for parks, offices, libraries and other non-traffic, non-pedestrian purposes without the express written consent of the City.
"Small Cell Facilities" or "DAS Facilities" means equipment installed in the public rights-of-way, other than Fiber Optic Facilities, including but not limited to electronic equipment, optical converters, power amplifiers, radios, multiplexers, microcells, remote radio units, antennas, related fiber optic and coaxial cables, wires, meters, pedestals, power switches, and related equipment.
"Telecommunications Facilities" or "Facilities" means all facilities installed by to support the provision of Telecommunications Services, including Fiber Optic Facilities and Small Cell Facilities.
"Telecommunications Services" means all telecommunications services that may provide under Law.
CONSTRUCTION, MAINTENANCE AND OPERATION OF THE SYSTEM
1. Access. Subject to the provisions of this Agreement, and all applicable Law, the City hereby grants to the non-exclusive right to construct, install, maintain, locate, move, operate, place, protect, reconstruct, reinstall, relocate, remove and replace the Facilities in, under, and along all certain Public Rights-of-Way and only in the non-vehicular portions of the Rights-of-Way and as pursuant to permits issued pursuant to paragraphs 5 and 6 below.
2. Term. The term of this Agreement shall be for an initial period of five (5) years commencing on the date of the last signature placed on this Agreement. This Agreement shall automatically renew for two (2) additional five (5) year periods, unless gives ninety (90) days' notice of intent to terminate prior to the end of the applicable five (5) year period.
3. No Interference. Except as permitted by applicable Law or this Agreement, in the performance and exercise of its rights and obligations under this Agreement, shall not interfere in any manner with the existence and operation of any and all existing public and private Rights-of-Way, sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electric and telephone wires, electronics, cable televisions, and other telecommunications, utility and municipal property without the approval of the owner(s) of the affected property or properties.
4. No Property Interest. This Agreement is not a grant by the City of any fee simple or other property interest of any kind and is made subject and subordinate to the prior and continuing right of the City to use the Public Rights-of-Way for any purposes allowed by law, including but not limited to streets and sidewalks and for the purpose of laying, installing, maintaining, repairing, protecting, replacing and removing sanitary sewers, water mains, storm drains, gas mains, poles and for other municipal uses and with right of ingress and egress, along, over, across and in said Public Rights-of-Way.
5. Application for Fiber Optic Permits. Prior to installing any Fiber Optic Facilities, shall file an engineering permit for approval of all work proposed (covering and showing all Fiber Optic Facilities) and engineering permits seeking approval of each job (covering all details of all sections or phases of the installation of the Fiber Optic Facilities, including the location of all borings, the size, type and location of equipment, and all lines and their encasement) within the Public Rights-of-Way. ___________ shall furnish detailed plans of the work and other such information as required by the City of Charleston's Department of Public Service and shall pay all required permit and inspection fees prior to issuance of general job permits and phase or section permits in accordance with the rates and standards in effect at the time of payment. Improvements shall be constructed and installed in accordance with applicable Law and plans approved by the City.
___________ shall have obtained any other necessary permits from the South Carolina Department of Transportation, the County of Charleston, or any other governmental entity having jurisdiction over any applicable Rights-of-Way and provide copies of such permits to the City at the time of applying for the City general permit. Likewise, shall provide written certification that has permission from the owner of the pole in issue to attach to or otherwise modify it consistent with the plans and permit application(s) filed with the City.
6. Issuance of Permits. Upon execution of this Agreement, satisfaction of all applicable requirements and 's performance of the obligations in Section 5, the City will issue all permits necessary from the City to install 's Fiber Optic Facilities, in accordance with the City's standard permitting procedures.
7. DAS or Small Cell Permits. The parties agree that the installation of DAS or Small Cell Facilities shall be governed by a separate ordinance adopted by the City and generally applicable to all entities installing DAS or Small Cell Facilities in the public Rights-of-Way in the City. Prior to installing DAS or Small Cell Facilities, will first apply for and obtain all necessary permits or licensing agreements required by the City's Small Cell ordinances.
8. Manner of Construction. The construction, installation, operation, maintenance, and removal of its Facilities shall be accomplished without cost or expense to the City and in such a manner so as not to endanger persons or property, or unreasonably obstruct travel on the Public Rights-of-Way. In the event the use of any portion of the Facilities has been discontinued for a period of 180 consecutive days, such portion of the Facilities shall be deemed to have been abandoned and the City may execute against any required bonds to remove such Facilities and restore all locations as necessary. Any amount not covered by performance or other bonds shall be the sole responsibility of.
9. Condition of Facilities. ___________ agrees to keep its Facilities in compliance with the Law. ___________ shall inspect, on a periodic basis, their Facilities, and initiate repairs to any part of their Facilities not in compliance with the Law. If the City determines Facilities do not meet the requirements of this Ordinance, or any permits issued pursuant to this Ordinance, it shall provide thirty (30) days' notice before seeking the issuance of a summons.
10. Relocation for City Purposes. ___________ shall relocate, at ___________'s expense, unless otherwise provided for by Law, in cooperation with the City, any Facilities installed, used and maintained under this Agreement if and when made necessary by a City Public Works Project and/or the construction, maintenance or operation of any of the City's properties or facilities including without limitation, underground or above- ground facilities such as roads, sidewalks, water and sewer. The City will use its best efforts to identify any reasonable options for relocation, consistent with identification of the most cost- effective solution to the City for completion of a City Project.
11. Removal and Abandonment.
(a) Upon the expiration of this Agreement, ___________ agrees to promptly vacate and remove its Facilities at its own expense and restore all locations as required by the City, provided that the City's Director of the Department of Public Service may, at that time, agree in writing, upon the written request of ___________, to allow abandonment of some or all of its Facilities in place, if ___________ will transfer ownership of any abandoned Facilities to the City.
12. Undergrounding of Facilities Where Required.
(a) During any initial construction, ___________ shall place its Fiber Optic Facilities underground if required by the City pursuant to Law; provided, however, that if within the immediate area (determined on a block by block basis) other telecommunications and/or cable television companies have their facilities located above ground, shall have the option to place its Facilities above ground and later move the same underground when such other companies are required by the City to place their Facilities underground. After ___________ has installed any above ground Facilities, ___________ shall at ___________'s expense place its Facilities underground contemporaneously with any City required undergrounding of all telecommunications and cable television cables in the designated area.
13. Restoration of Public Rights-of-Way. After the construction, removal or relocation of any Facilities, ___________ shall, at its own cost, repair and return the Public Rights-of-Way to the same condition existing before such construction, removal, or relocation as determined by the City. shall be responsible for damage to street pavements, existing utilities, curbs, gutters, sidewalks and any other public or private property due to ___________'s installation, maintenance, repair or removal of its Fiber Optic Network Facilities in Public Rights-of-Way, and shall repair, replace, and restore in kind to the same or better condition, any damaged property at its sole expense.
COMPENSATION
14. Franchise/Consent Fee. ___________ shall pay the City an annual franchise/consent fee at the maximum rate presently or hereafter specified in § 58-9-2230 of the Code of Laws of South Carolina, commencing on _______, and on _______ of each year thereafter.
15. Business License Fee. ___________ shall pay the City an annual business license fee at the maximum rate specified in the City's business license ordinance, the first payment being due on or before January 31, 20___.
16. Nondiscriminatory Fees. Notwithstanding anything included in this Agreement to the contrary, in no event shall be required to pay any fee, charge, cost, expense or compensation, or be subject to any obligations that would be a violation of Law.
17. Other Fees. shall pay all permit, inspection and user fees to the City in accordance with Law, as well as any other taxes or fees allowed to be imposed by § 58-9-2230(C) of the Code of Laws of South Carolina.
GENERAL TERMS
18. Indemnification. ___________ agrees to indemnify, defend and hold harmless the City, its officers, employees and agents from and against any and all claims, demands, losses, damages, liabilities, fines, and penalties, excepting Acts of God, and all costs and expenses incurred in connection therewith, including reasonable attorneys' fees and costs of defense (collectively, the "Losses") arising out of this Agreement or any breach by ___________ of its obligations described in this Agreement or any careless, negligent or willful act or omission of ___________, its officers, employees and agents or its independent contractors, except to the extent any Losses arise from the willful misconduct or negligent acts or omissions of the City, its officers, employees or agents. This indemnification provision does not abrogate or waive any defense(s) available to the City under the South Carolina Tort Claims Act, S.C. Code Ann. § 15-78-10, et seq.
19. Insurance. shall procure and maintain for the duration of the Agreement with the City insurance against claims for injuries to persons or damages to property which may arise from or in connection with work performed by its agents, representatives, employees or subcontractors. The cost of such insurance shall be the responsibility of ___________.
a. General Liability—public liability, including premises, products and complete operations.
(1) Bodily injury liability | $1,000,000 each person $1,200,000 each occurrence
(2) Property damage liability | $1,200,000 each occurrence, or
(3) Bodily injury and property damage combined | $1,200,000 single limit
b. Comprehensive—Automobile Liability Insurance, including owned, non-owned and hired vehicles.
(1) Bodily injury liability | $1,000,000 each person $1,200,000 each occurrence
(2) Property damage liability | $1,200,000 each occurrence, or
(3) In lieu of (1) and (2) Bodily injury and property damage combined | $1,200,000 single limit
c. ___________ agrees that with respect to the above-required insurance as well as insurance of any contractor, subcontractor or agent, will contain the following required provisions.
(1) the City shall be named as additional insured, and
(2) thirty (30) days' notice shall be provided to the City prior to cancellation, except for non-payment of premium to any policy of insurance required by this Agreement.
d. Required policies are to contain, or be endorsed to contain, the following provisions:
___________'s insurance coverage shall be primary insurance with respect to the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees, or volunteers shall be in excess of ___________'s insurance and shall not be required to contribute. To accomplish this objective, the proceeding terms should be incorporated in the previously referenced additional insured endorsement.
e. Any deductibles or self-insured retentions larger than $25,000 must be reported to and approved by the City's Budget and Finance Department and corporation counsel.
f. Insurance must be placed with an approved insurance company with current Best's rating of A+, A, or A- and minimum Financial Size Category (FSC) of VIII or greater. Exceptions to this requirement must be approved in writing by the City's corporation counsel.
g. ___________ shall furnish the City with Certificates of Insurance noting the coverage and endorsements. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Required certificates and requested policies should be mailed to:
________________________________
________________________________
________________________________
________________________________
20. Construction Bond. Upon commencement of construction of the Facilities, ___________ shall deposit with the City a surety bond naming the City as an obligee in the amount of One Hundred Thousand Dollars ($100,000.00). ___________'s obligation to maintain the surety bond shall terminate thirty (30) days following completion of construction of the initial Facilities. The City may draw against the surety bond, up to its full face amount, for any loss or damage to or failure of completion of ___________'s Facilities within the Public Rights-of-Way utilized by ___________ during construction of the initial Facilities to the extent the City previously has not been otherwise compensated through a withdrawal from the surety bond or payment by ___________.
21. Force Majeure. In no event shall or the City have any claim or right against the other for any failure of performance if such failure is caused by or the result of causes beyond the reasonable control of the party having the duty of performance, including but not limited to: any Act of God, fire, flood or other natural catastrophe; any Law or other action of governmental authorities having civil or military jurisdiction; any national emergency, insurrection, riot or war, or any other similar occurrence (hereinafter, a "Force Majeure Event"). Delay in performance of an obligation under this Agreement shall be excused for the duration of the Force Majeure Event.
22. Assignment. Except as provided below, ___________ shall not assign this Agreement without the prior written consent of the City. Notwithstanding the foregoing, ___________ may assign this Agreement without City consent to any corporation that is controlled by ___________, that controls ___________ or that is under common control with ___________, provided that no assignment, with or without City consent, shall release ___________ from liability for all of the terms and conditions of this Agreement. ___________will provide the City with notice of any assignment.
23. Reservation of Rights. Both the City and ___________ reserve and may seek any and all remedies available at law. Neither the City nor ___________ shall be deemed to have waived any rights or remedies at law by virtue of executing this Agreement; provided, however, that ___________ expressly waives any rights, remedies, credits or set-offs available to it with respect to any payments to the City made within thirty (30) business days of the effective date of this Agreement. Notwithstanding anything to the contrary in this paragraph 22 or elsewhere in this Agreement, in no event shall either party be liable to the other party for any consequential or punitive damages arising out of or in connection with this Agreement.
24. Notices. All notices required or permitted to be given under this Agreement shall be in writing, addressed as set forth below, and shall be hand-delivered to the addressee, sent by Federal Express or similar overnight delivery service, or sent by U.S. Mail, certified restricted delivery with return receipt requested.
To the City: Mayor
City of Charleston
P.O. Box 304
Charleston, South Carolina 29403-0304
With Copy to: Corporation Counsel
City of Charleston
P.O. Box 304
Charleston, South Carolina 29402-0304
Director
Department of Public Service
2 George Street, Suite 2100
Charleston, SC 29401
To _______________: ________________________________
________________________________
________________________________
________________________________
With a copy (which shall not constitute legal notice) to:
________________________________
________________________________
________________________________
________________________________
25. Default. A party shall be in default of this Agreement if it breaches any term or condition hereof and fails to cure such breach within thirty (30) days after receipt of written notice , provided that if the breach is of such a nature that it cannot be cured within thirty (30) days, then a default shall not exist so long as the party has commenced the cure within thirty (30) days and is thereafter diligently pursuing the cure to completion. Upon a default, the non- defaulting party may exercise any and all available legal and/or equitable remedies. Notwithstanding the foregoing, the City may not terminate this Agreement pursuant to this paragraph unless the ___________ default involves a material breach of a provision hereof.
26. Conflicts of Law and Venue. This Agreement shall be governed by the laws of the State of South Carolina and the City of Charleston, provided that any such laws do not conflict with any applicable federal law. Federal law shall govern if a conflict of law arises. The venue for any dispute arising out of the Agreement shall be in the State of South Carolina, Charleston County, or in the federal court in the District of South Carolina, Charleston Division.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above-written, and shall be effective as of final adoption by the City.
WITNESS: | CITY OF CHARLESTON
_____ | By: _____
_____ | Mayor, City of Charleston
Date: | Date:
WITNESS:
_____
_____ | By: _____ Its: Date: _____
Date: _____
(Ord. No. 2018-114, § 3, 9-18-18)
