Appendix A. DEFINED TERMS
For purposes of the agreement to which this Appendix A is appended, the following terms, phrases, words, and their derivations shall have the meanings set forth herein, unless the context clearly indicates that another meaning is intended.
"Abandonment" means: (i) the cessation, by act or failure to act of the company of the provision of all, or substantially all, of the services then being provided over the system to subscribers or the franchising authority for 24 or more consecutive hours, except if due to an event beyond the control of the company; or (ii) the completion of any action described in section 8.1 or 8.2 of the agreement without the prior written consent of the franchising authority.
"Affiliated person" means each person who falls into one or more of the following categories: (i) each person having, directly or indirectly, a controlling interest in the company; (ii) each person in which the company has, directly or indirectly, a controlling interest; (iii) each officer, director, general partner, limited partner holding an interest of 25 percent or more, joint venturer or joint venture partner, of the company; and (iv) each person, directly or indirectly, controlling, controlled by, or under common control with, the company; provided that "affiliated person" shall in no event mean the franchising authority, the entity, if any, administering some or all of the access channels, any limited partner holding an interest of less than 25 percent of the company, or any creditor of the company solely by virtue of its status as a creditor and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, the company.
"Agreement" means the agreement to which this Appendix A is appended, together with all appendices attached thereto and all amendments or modifications thereto.
"Basic service" means any service tier which includes the retransmission of local television broadcast signals and any equipment or installation used in connection with basic service.
"Cable Act" means Title VI of the Communications Act of 1934, as amended, 47 U.S.C. 521 et seq.
"Communications system" means a "cable system" as defined in the Cable Act.
"Cable service" means: cable service as defined in the Cable Act.
"Channel" means a "channel" or "cable channel" as defined in the Cable Act.
"Company" means KNOLOGY of Columbus a corporation duly organized and validly existing under the laws of the State of Delaware, whose principal place of business is located at 1241 O. G. Skinner Drive, West Point, Georgia 31833.
"Control" or "controlling interest" means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of the system, the franchise or the company.
"FCC" means the Federal Communications Commission, its designee, or any successor thereto.
"Franchise area" means the territory embraced within the total area of Muscogee County, with the exception of Bibb City and Ft. Benning, as the same may be now or hereafter fixed and established by law, including any areas annexed by the franchising authority during the term of the franchise as determined by the franchising authority.
"Franchising authority" means Columbus Consolidated Government, or the City of Columbus, Georgia, or, as appropriate in the case of specific provisions of this agreement, any board, bureau, authority, agency, commission, department of, or any other entity of or acting on behalf of, Columbus Consolidated Government or the City of Columbus, Georgia, or any officer, official, employee, or agent thereof, any designee of any of the foregoing, or any successor thereto.
"Gross revenue" means all revenue, including advertising revenue, which is received, directly or indirectly, by the company, by any affiliated person, and any other person from or in connection with the distribution of any service on the system or the provision of any cable service related activity in connection with the system.
"Pay service" means any cable service offered on a per channel or per program basis.
"Person" means any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit, but shall not mean the franchising authority.
"Responsible franchising official" means the body, organization or official to whom the applicable rights or obligations have been delegated by the franchising authority pursuant to applicable law.
"Service" means any cable service only, including any basic service, including the provision of any equipment and any installation of equipment or facilities and monthly use thereof, whether originated by the company or any other person, which is offered to any person in conjunction with, or distributed over, the system, but does not include services other than cable service.
"Signal" means any transmission of radio frequency energy or of optical information.
"Streets" means the surface of, and the space above and below, any and all streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, docks, bulkheads, wharves, piers, public grounds and public places or waters within and belonging to the franchising authority and any other property within the franchise area to the extent to which there exist public easements or public rights-of-way.
"Subscriber" means any person lawfully receiving any service provided by the company by means of or in connection with the system, whether or not a fee is paid for such service.
"Subscriber network" means that portion of the system over which services are provided primarily to residential subscribers.
"System" means the communications system which is to be constructed, operated, maintained and upgraded, as necessary, by the company pursuant to this agreement, including, without limitation, all real property, all tangible and intangible personal property, buildings, offices, furniture, subscriber lists, cables, amplifiers and all other electronic devices used in connection therewith and all rights, contracts and understandings with regard to any matter related thereto.
LIGHTWAVE, L.L.C.
ORDINANCE NO. 01-9
AN ORDINANCE AUTHORIZING LIGHTWAVE, L.L.C., A LIMITED LIABILITY CORPORATION FORMED UNDER THE LAWS OF THE STATE OF ALABAMA AND DULY AUTHORIZED TO DO BUSINESS IN THE STATE OF GEORGIA, TO ENCROACH UPON THE PUBLIC RIGHT OF WAY IN CERTAIN STREETS, EASEMENTS AND PUBLIC WAYS OF COLUMBUS CONSOLIDATED GOVERNMENT (CITY) FOR THE PURPOSE OF OVERHEAD AND UNDERGROUND FIBER OPTIC CABLE UPON CERTAIN TERMS AND CONDITIONS FOR A PERIOD OF TEN YEARS.
WHEREAS, Lightwave, LLC, a limited liability corporation formed under the laws of the State of Alabama and duly authorized to do business in the State of Georgia is desirous of installing, constructing, operating, maintaining, using, repairing and removing overhead and underground fiber optic cable upon the public right of way in certain streets, easements and public ways of the City for the purpose of connecting the point of presence located in the City to points of presence located outside the City and for the purpose of providing Telecommunications to Telecommunications Carriers; and
WHEREAS, the City is willing to permit Lightwave, LLC to encroach upon the public right of way in certain streets, easements and public ways of the City as long as such use will not interfere with its own service requirements or the service requirements of others who are authorized to use the City's rights-of-way.
NOW, THEREFORE, THE COUNCIL OF COLUMBUS, GEORGIA HEREBY ORDAINS AS FOLLOWS:
§ 1.
That Lightwave, L.L.C., referred to as "Licensee", subject to the conditions set forth in § 6, is hereby granted a revocable license (the "License") authorizing Licensee to encroach upon the public Streets in certain Streets and alleys within the corporate boundaries of Columbus Consolidated Government (hereafter "City"), for the purpose of installing, constructing, operating, maintaining, using, repairing and removing overhead and underground fiber optic cable ("Cable"), shown as dashed lines (overhead) and solid lines (underground) on a plan prepared by Licensee, dated December 1, 2000, (the "Route"), a copy of which drawing is attached to this Ordinance as Attachment "1". The Cable shall consist of a single cylindrical Cable not exceeding one inch in diameter, if above ground, or of a cylindrical conduit not exceeding four inches in diameter, if under ground, and such Cable or conduit may contain up to 96 fiber optic Cables.
§ 2.
For purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings set forth in this Section, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number and words used in the singular number include the plural number.
"Affiliated Person" means each Person who falls into one or more of the following categories: (1) each Person having, directly or indirectly, a Controlling Interest in the Licensee; (2) each Person in which the Licensee has, directly or indirectly, a Controlling Interest; (3) each officer, director, joint venturer or joint venture partner, of the Licensee; and (4) each Person, directly or indirectly, controlling, controlled by, or under common Control with, the Licensee; provided that "Affiliated Person" shall in no event mean the City or any creditor of the Licensee solely by virtue of its status as a creditor and which is not otherwise an Affiliated Person by reason of owning a Controlling Interest in, being owned by, or being under common ownership, common management or common Control with, the Licensee.
"Cable Services" means "cable services" as defined in the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, and as may be further amended from time to time (the "Cable Act"), but does not include Telecommunications Services or Private Telecommunications Services. In the event that "cable services" is no longer defined in the Cable Act or the definition in the Cable Act otherwise becomes inapplicable, "Cable Services" shall mean "cable services" as defined in the Cable Act immediately prior to such term no longer being defined in the Cable Act or such definition otherwise becoming inapplicable.
"City" means the Columbus Consolidated Government or, as appropriate in the case of specific provisions of this Ordinance, any board, bureau, authority, agency, commission, department of, or any other entity of or acting on behalf of, the City or any officer, official, employee, or agent thereof, any designee of any of the foregoing, or any successor thereto.
"Control" or "Controlling Interest" means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the Licensee or the Telecommunications System in the Streets. A rebuttable presumption of the existence of Control or a Controlling Interest shall arise from the beneficial ownership, directly or indirectly, by any Person, or group of Persons acting in concert, of more than 25 percent of any Person (which Person or group of Persons is hereinafter referred to as "Controlling Person"). "Control" or "Controlling Interest" as used herein may be held simultaneously by more than one Person or group of Persons.
"Licensee" means Lightwave, L.L.C., an Interexchange Carrier providing services to other Telecommunications Carriers.
"Person" means any individual or any association, firm, partnership, joint venture, corporation or other legally recognized entity, whether for profit or not for profit, but shall not mean the City.
"Responsible City Official" means the body, organization or official to whom the applicable rights or obligations have been delegated by the City pursuant to applicable law.
"Streets" means the surface of, as well as the spaces above and below, any and all Streets, alleys, avenues, highways, bridges, tunnels, and any other public Streets of the City within the corporate limits of the City, as the same now exists or may be hereafter constructed, developed, extended or altered, and any location thereon, and any portion thereof.
"Telecommunications" means "telecommunications" as defined by 47 U.S.C. § 153(43) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, but shall not include Cable Services.
"Telecommunications Carrier" means "telecommunications carrier" as defined by 47 U.S.C. § 153(44) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996.
"Telecommunications Service" means "telecommunications service" as defined by 47 U.S.C. § 153(46) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, but shall not include Cable Services. In the event that "telecommunications service" is no longer defined in the Communications Act or the definition in the Communications Act otherwise becomes inapplicable, "Telecommunications Service" shall mean "telecommunications service" as defined in the Communications Act immediately prior to such term no longer being defined in the Communications Act or such definition otherwise becoming inapplicable.
"Telecommunications System" means the Cable in or along the Route over which Telecommunications is provided, in accordance with the limitations under Section 6 of this Ordinance.
§ 3.
The term of the License granted by this Ordinance commences February 6, 2001 ("Effective Date") and expires on February 6, 2011, unless the term (the "Term") is renewed as provided in Section 4, or is revoked as provided in Section 5, of this Ordinance.
§ 4.
The Licensee may submit a written petition to renew the term of the License, not later than three months nor more than nine months prior to the end of the term set forth in Section 3. The City is not obligated to renew the Term, and the Licensee has no right to a renewal of the License.
§ 5.
(a) The City, at its option and consistent with the terms and conditions of § 5(b) of this Ordinance, may terminate this License and revoke this Ordinance at any time, upon any breach by Licensee of the terms of this Ordinance.
(b)
The Responsible City Official shall notify Licensee, in writing, of any alleged breach of this Ordinance by Licensee, which notice shall specify the alleged act(s) of breach with reasonable particularity. Within 30 days after receipt of such notice or such longer period of time as the Responsible City Official may specify in such notice, Licensee shall, either: (i) cure such alleged act(s) of breach, or (ii) present facts and arguments in refutation or excuse of such alleged act(s) of breach, or (iii) state that such alleged act(s) of breach will be cured and set forth the method and time schedule for accomplishing such cure.
If the City Council reasonably determines that a material breach has occurred and that such breach is not excusable and has not been or will not be cured by Licensee in a manner and in accordance with a schedule reasonably satisfactory to the City, then the Responsible City Official shall prepare a written report which may recommend the action to be taken by the City Council. The Responsible City Official shall provide notice and a copy of such report to Licensee. In the event that the City Council determines that such a material breach has not occurred, or that such breach either has been or will be cured in a manner and in accordance with a schedule reasonably satisfactory to the City Council, or that such breach is excusable, such determination shall conclude the investigation.
If the City Council determines that such a material breach has occurred, and that such breach has not been and will not be cured in a manner and in accordance with a schedule reasonably satisfactory to the City Council, and that such breach is not excusable, then the City Council may, but shall not be obligated to, immediately terminate the License and this Ordinance.
In the event of any termination of the License, the Licensee, at the City's request and at the Licensee's own cost and expense, shall remove the Cable in the public Streets. The City shall have the right to establish reasonable terms and conditions for the removal of the Cable.
§ 6.
This Ordinance authorizes the Licensee to encroach upon the public Streets as set forth in § 1 subject to the following conditions: (1) Licensee shall use only the Route, as set forth in Attachment "1" to this Ordinance, and (2) the Telecommunications System in the City shall be used solely for the following purposes: (a) to connect the point of presence located in the City at 1620 B, Fifth Avenue ("City POP") to points of presence located outside of the City ("Remote POPs"); and (b) to provide Telecommunications to Telecommunications Carriers for the purpose of transmitting Telecommunications from the Remote POPs to the City POP or transmitting Telecommunications from the City POP to the Remote POPs. Except to the extent expressly permitted by the immediately preceding sentence, the Telecommunications System shall not be used to originate or terminate Telecommunications Services from any location in the City and this License shall not be interpreted to authorize the Licensee to use the Streets to originate or terminate any Telecommunications Services from or to any Person or location in the City. Nothing in this License shall be interpreted to authorize any partner or affiliate of Licensee or any other Person to use the Streets to originate or terminate any Telecommunications Services from or to any Person or location in the City, or to otherwise use the Streets for purposes of providing Telecommunications.
If the Licensee or the Telecommunications System fails to comply with the foregoing conditions in this Section 6, the City, in its sole discretion, may revoke and terminate the License as provided in Section 5 of this Ordinance; require the Licensee to obtain additional authorization from the City, including a Telecommunications franchise; and/or impose such other conditions or requirements permitted by applicable law or this Ordinance. If the Licensee or the Telecommunications System fails at any time to comply with each of the foregoing conditions in this Section 6, the Licensee shall promptly inform the City in writing.
§ 7.
The Licensee shall give the City 30 days advance written notice requesting any use of additional Streets within the City (other than the Route) and shall abide by any licensing or franchising requirements as specified by City ordinances.
§ 8.
The rights granted by this Ordinance to the Licensee are personal to the Licensee (as currently owned and Controlled). Such rights, the License granted by this Ordinance, and the Cable shall not be assigned or transferred, directly or indirectly, by a transfer of property, assets, Control or otherwise without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed.
§ 9.
The Licensee shall also be subject to the following specific conditions:
(a)
The Licensee, or any successor or assign, shall bear all costs incurred in connection with Licensee's installation, construction, maintenance, repair, operation and removal of its Cable.
(b)
The Licensee, on the Licensee's own behalf and on behalf of any successor or assign, shall acknowledge and assume all responsibility for the permitted use of the public Streets and for the installation, construction, maintenance, repair, operation and removal of the Cable, which shall be undertaken without risk or liability on the part of the City.
(c)
On an annual basis, Licensee shall pay $6.94 per linear foot (4,400 feet as of the Effective Date) for each foot of its Cable in the public Streets as of January 1 of each year. The first payment under this Ordinance shall be prorated from the Effective Date to the end of the first calendar year of the Term and shall be due within 30 days from the Effective Date. Payments in advance for each subsequent year shall be remitted by January 30. The per linear foot fee shall be adjusted annually based upon the percentage change in the United States Bureau of Labor Statistics Consumer Price Index (CPI) (all Urban Cities base) during the calendar year prior to the year in which the change in the annual per linear foot fee rate is to be made. If any payment required by this Ordinance is not actually received by the City on or before the due date, the Licensee shall pay interest thereon from the due date to the date paid at a rate of one percent per month, compounded daily, for the period of delinquency.
(d)
The Licensee shall furnish the City evidence of a public liability insurance contract, in a form reasonably acceptable to the City, in an amount of $1,000,000.00 combined single limit, naming the City and its officers, boards, commissions, councils, elected officials, agents and employees as additional insured. The foregoing minimum limitation shall not prohibit the Licensee from obtaining a liability insurance policy or policies in excess of such limitations, provided that the City, its officers, boards, commissions, councils, elected officials, agents and employees shall be named as additional insureds to the full extent of any limitation contained in any such policy or policies obtained by the Licensee.
(e)
The Licensee shall also require any of its contractors or sub-contractors to furnish the City evidence of a public liability and property damage insurance contract in an amount of $1,000,000.00 combined coverage for bodily injuries and property damage resulting from the contractor's activities with respect to the installation, construction, operation, maintenance, use, repair and removal of the Cable on behalf of Licensee. Such insurance shall name the City and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds.
(f)
The insurance policies required in this Section 9 shall be maintained by the Licensee its contractors or sub-contractors throughout the term of the License and such other period of time during which the Licensee operates or is engaged in the removal of its Cable from the City's Streets. Each such liability insurance policy shall contain an endorsement substantially in the form of the following:
It is hereby understood and agreed that this policy may not be canceled, nor the intention not to renew be stated, until 30 days after receipt by the City of a written notice of such intent to cancel or not to renew.
Prior to any such cancellation, the Licensee, its contractors or sub-contractors shall obtain and furnish to the City replacement insurance policies in a form reasonably acceptable to the City.
(g)
The legal liability of the Licensee to the City and any Person for any of the matters that are the subject of the liability insurance policies required by this Section 9, including, without limitation, the Licensee's indemnification obligations set forth in this Ordinance, shall not be limited by such insurance policies nor by the recovery of any amounts thereunder, except to the extent necessary to avoid duplicative recoveries from or payments by the Licensee.
(h)
To indemnify the City for any unreimbursed loss or damage to its Streets or any property of the City caused by the Licensee during construction, installation, operation, upgrade, repair, maintenance or removal of its Cable and to ensure the performance of the Licensee under this License, the Licensee shall arrange for a performance bond solely for the protection of the City, with a corporate surety or trust reasonably acceptable to the City and consistent with the terms and conditions contained in Attachment 2 of this License. A copy of the executed performance bond shall be delivered to the City by the Licensee on or before the Effective Date of this Ordinance.
§ 10.
The Licensee shall be responsible for any liability, including, without limitation, any liability of the City and any Person, including, without limitation, any officer, employee, agent, attorney, consultant and independent contractor of the City, arising out of or in connection with the Licensee's acts or omissions in connection with the construction, installation, operation, repair, maintenance or removal of the Cable by the Licensee, or the provision by the Licensee of Telecommunications Services through the Cable. The Licensee shall, at its own cost and expense, replace, repair or restore to as near as possible its prior condition, any property damaged in connection with the performance of any of the foregoing activities and shall pay any compensation and damages, finally adjudicated to be owed by Licensee pursuant to any claim against the Licensee as a result of any injury to or death of any Person occasioned by any act or failure to act of the Licensee, any Affiliated Person, or any officer, employee, agent or subcontractor thereof, in connection with Licensee's construction, installation, operation, repair, maintenance or removal of the Cable or the provision of Telecommunications Services through the Cable. Nothing in this Section 10 shall be interpreted to limit Licensee's indemnification obligations pursuant to this License. Nothing herein shall be deemed to limit any recovery to which a Person may otherwise be entitled.
§ 11.
The City, its officers, employees, agents, attorneys, consultants and independent contractors shall not be responsible for any acts or omissions of the Licensee, any Affiliated Person or any other non-City Affiliated Person, arising out of or in connection with Licensee's construction, installation, operation, upgrade, repair, maintenance or removal of the Cable or the provision of Telecommunications Services through the Cable. The City and its officers, employees, agents, attorneys, consultants and independent contractors shall have no liability to the Licensee, any Affiliated Person or any other Person for any special, incidental, consequential, punitive, or other damages as a result of the exercise of any right of the City pursuant to this Ordinance or applicable law.
§ 12.
Except to the extent caused by acts of willful misconduct or gross negligence by the City or its officers, employees, agents, attorneys, consultants and independent contractors, the Licensee shall defend, indemnify and hold harmless the City, its officers, employees, agents, attorneys, consultants and independent contractors from and against all liabilities, whether special, incidental, consequential or punitive, and all other damages, costs and expenses (including reasonable attorneys' fees) arising out of or in connection with the award of this License, Licensee's construction, installation, operation, repair, maintenance or removal of Cable or the provision of Telecommunications Services by Licensee through the Cable. The Licensee also shall cooperate with the City by providing such nonfinancial assistance as reasonably may be requested by the City in connection with any claim arising out of or in connection with the granting of the License.
§ 13.
The Licensee shall be responsible for assuring that all overhead cables meet the minimum ground clearance as required by all applicable codes and regulations.
§ 14.
The Licensee shall place its Cable underground where required by the City, County or State to do so and in any other locations where required by the City Engineer. Notwithstanding the foregoing, in the event during the Term the Licensee is granted the right by the City to place its Cable above ground along a particular portion of a Route where the cables of Telecommunications Carriers and utilities are also above ground and the Licensee actually installs its Cable above ground along such portion, the City may not later require the Company to place such Cable underground unless the City also requires other Telecommunications Carriers or utilities with cable along such portion of the Route to place their cables under ground.
§ 15.
Prior to construction, a final location plan for Licensee's Cable shall be submitted for approval by the City Engineer. The City Engineer shall be authorized to permit installation pursuant to such final location plan, or to require an alternate location for the Cable within the Route to avoid interference with other permitted uses of such Streets or to establish an appropriate width from curb for placement of the Cable for the use proposed.
§ 16.
The Licensee shall provide as-built drawings detailing the location of its conduits and manholes installed pursuant to the approval and authorization granted pursuant to Section 15.
§ 17.
Prior to the date this Ordinance is adopted, the Licensee shall (a) furnish the required insurance and bond forms and file a written statement, in a form reasonably satisfactory to the City Attorney, to the effect that the Licensee agrees to be bound by and to comply with all the terms and conditions set forth in this Ordinance and upon which this revocable License is granted, and (b) pay a $5,000.00 application fee and any permit fees required by the City.
§ 18.
All work involved in the construction, installation, operation, repair, maintenance and removal of the Cable shall be performed in a reasonably safe, thorough and reliable manner, using materials of good and durable quality. If it is reasonably determined by the City or any other agency or authority of competent jurisdiction, at any time, that the Cable is harmful to the health or safety of any Person, then the Licensee shall upon reasonable notice appropriate under the circumstances, at its own cost and expense, promptly correct all such harmful conditions.
§ 19.
Neither the City nor its officers, employees, agents, attorneys, consultants or independent contractors shall be responsible to the Licensee or any Affiliated Persons for any liability as a result of or in connection with the protection, breaking-through, movement, removal, alteration or relocation of any fiber optic Cable by or on behalf of the Licensee or the City in connection with any emergency, public work, public improvement, alteration of any municipal structure, any change in the grade or line of any public Streets, or the elimination, discontinuation and closing of any public Streets. The foregoing provision relieving the City from any liability pursuant to this Section shall not apply to acts of willful misconduct or to damages caused by violations by the City of Chapter 9 of Title 25 of the Official Code of Georgia Annotated, as now or hereafter amended, relating to notification prior to excavation near underground utilities. Nothing herein shall be deemed an admission by the City of liability nor be interpreted to waive any protection against liability under any law.
§ 20.
In connection with the construction, installation, operation, repair, maintenance or removal of the Cable, the Licensee shall not, except in an emergency, obstruct the sidewalks, streets, subways, railways, rivers or other traffic to, from or within the corporate limits of the City without the prior consent of the City. Cable of the Licensee in the public Streets shall be located so as to cause minimum interference with the lawful use of the public Streets and adjoining property by other Persons. The Licensee shall, to the extent not prevented by an emergency, operate the Cable so as not to interfere with other lawful, permitted uses of the public Streets. The Licensee shall, at its own cost and expense, undertake all reasonable and appropriate efforts to prevent accidents at its work sites, including the placement and maintenance of proper guards, fences, barricades, watchmen and suitable and sufficient lighting.
§ 21.
The City may, at any time and in accordance with applicable law, in case of fire, disaster or other emergency, as determined by the City in its reasonable sole discretion, cut or move the Cable as and to the extent necessary to contain or alleviate the harm threatened by the emergency at hand and/or to repair any damage to the Streets resulting therefrom, in which event the City shall not incur any liability to the Licensee or any Affiliated Person. The City shall use reasonable efforts under the circumstances if reasonably possible to consult with Licensee prior to any such cutting or movement of the Cable, and, if possible, Licensee shall be given the opportunity to perform such work itself. All costs to repair or replace such Cable shall be borne by the Licensee.
§ 22.
The City has the right to oversee, regulate and inspect the construction, installation, repair, maintenance and removal of the Cable in the Streets. The City reserves the right to adopt or issue, in accordance with applicable law, such rules, regulations, orders or other directives, governing the Licensee, the Cable or the Licensee's Telecommunications System as it shall find necessary or appropriate in the exercise of its police power or pursuant to and in furtherance of the purposes of this Ordinance.
§ 23.
Nothing in this Ordinance affects the right of the City to authorize any other Person to occupy and use the public Streets, including the streets and alleys set forth in the Attachment, to construct, install, operate, upgrade, repair, maintain and remove equipment used to provide any Telecommunications Services or Private Telecommunications Services, or to engage in any other activity in the public Streets. Nothing in this Ordinance affects the right of the City to occupy and use the public Streets to construct, install, operate, upgrade, repair, maintain and remove equipment used to provide any Telecommunications Services, or to engage in any other activity in the public Streets.
§ 24.
Nothing in this Ordinance abrogates the right of the City to perform any public works or public improvements. If Licensee's Cable materially interferes with the construction, installation, operation, maintenance, repair or removal of such public works or public improvements, the Licensee, at its own expense, shall, promptly after receipt of reasonable notice of such interference from the City, protect, alter or relocate such Cable, as reasonably directed by the City. If the Licensee refuses or neglects to so protect, alter or relocate said Cable, the City may break through, remove, alter or relocate the Cable without any liability to the Licensee, and the Licensee shall pay to the City the reasonable costs incurred in connection with such breaking through, removal, alteration or relocation. The City and its officers, employees, agents, attorneys, consultants and independent contractors shall not have any liability to the Licensee for any damage as a result of, or in connection with, such public works or public improvements. Nothing herein shall be deemed an admission of liability by the City nor be interpreted to waive any protection against liability under any law.
§ 25.
The Licensee shall obtain all necessary approvals, licenses, permits or other authorizations from the appropriate federal, state and local authorities to offer Telecommunications Services through the Cable, and shall, upon the City's request, submit evidence of such approvals to the City. The Licensee shall obtain all construction, building or other permits or approvals necessary before constructing, installing, operating, upgrading, repairing, maintaining or removing the Cable. Any fees that the City charges to the Licensee to issue permits or approvals shall not be offset against the compensation or other payments that Licensee is required to pay to the City pursuant to this Ordinance.
§ 26.
The Licensee shall comply with: (1) all applicable laws, rules, regulations, orders, writs, decrees and judgments (including, but not limited to, those of the FCC and any other federal, state agency or authority of competent jurisdiction); and (2) all local laws and all rules, regulations, orders, or other directives of the City issued pursuant to this Ordinance. The Licensee shall have the sole responsibility for obtaining all federal and state permits, licenses and other forms of approval or authorization necessary to construct, install, operate, repair, maintain and remove the Cable and provide Telecommunications Services therewith.
§ 27.
If any section, subsection, sentence, clause, phrase or other portion of this Ordinance is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.
§ 28.
Notices. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments, designations, or other direction or communication hereunder by any party to another shall be in writing and shall be sufficiently given and served upon the other party, immediately if delivered personally or by telex or telecopy (provided with respect to telex and telecopy that such transmissions are received on a business day during normal business hours), the second business day after dispatch if sent by express mail, and the fifth business day after dispatch if sent by first class mail, registered or certified, return receipt requested, postage prepaid, and addressed as follows:
CITY:
Office of the City Manager
Columbus Consolidated Government
P. O. Box 1340
Columbus, Georgia 31902-1340WITH A COPY TO:
Columbus Consolidated Government
Finance Department
Office of the Finance Director
PO Box 1340
Columbus, Georgia 31902-1340GRANTEE:
Lightwave L.L.C.
310 Longleaf Circle
Monroeville, Alabama 36461
Attn: Charles R. Wasden
Facsimile: 334-575-9070WITH A COPY TO:
Gerry, Friend & Sapronov, L.L.P.
Attn: Norman D. Gerry
Three Ravinia Drive, Suite 1450
Atlanta, Georgia 30346-2131ATTACHMENT 2
PERFORMANCE BOND
§ 1.
Amount. The initial Performance Bond shall be in the face amount of not less than $40,000.00. Such bond amount shall remain in effect throughout the Term of this License and for 90 days thereafter.
§ 2.
Withdrawals from the Performance Bond. The City may make withdrawals from the Performance Bond upon the occurrence of any final determination by the City's governing body pursuant to Section 5 hereof that a breach by Licensee has occurred and that such breach has not and will not be cured in a manner and in accordance with a schedule reasonably satisfactory to the City's governing body and that such breach is not excusable. Withdrawals from the Performance Bond shall not be deemed a cure of any default(s) that led to the withdrawal. Prior to making any withdrawals from the Performance Bond, the City will give Licensee at least seven business days advance written notice of its intent to make a withdrawal from the Performance Bond. The City's right to make withdrawals shall not be subject to Licensee's approval. The City may not seek recourse against the Performance Bond for any costs or damages for which the City has previously been compensated through a withdrawal from the Performance Bond or otherwise by Licensee if the result of the withdrawal is to compensate the City twice.
§ 3.
Notice of Withdrawals. The City shall notify Licensee in writing of the date and amount of any withdrawal. The withdrawal of amounts from the Performance Bond shall constitute a credit against the amount of the applicable liability of Licensee to the City, but only to the extent of said withdrawal.
§ 4.
Replenishment. Within 30 days after receipt of notice from the City that any amount has been withdrawn from the Performance Bond, Licensee shall restore the Performance Bond to the applicable amount specified in Section 1 of this Attachment 2. Provided however, if a court finally determines that said withdrawal by the City was improper, the City shall refund the improperly withdrawn amount to the Licensee in the event Licensee has replenished such amount to the Performance Bond. If the Licensee has not replenished such amount, the City shall refund the improperly drawn amount to company issuing the Performance Bond.
§ 5.
Form. The Performance Bond shall be in a form and content reasonably approved by the City and shall be furnished to the City on or before the Effective Date of this License. The Performance Bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled or not renewed by the surety until at least 60 days prior written notice to the City of surety's intention to cancel or not renew this bond."
§ 6.
Not a Limit on Liability. The obligation to perform and the liability of the License pursuant to this License shall not be limited by the City's acceptance of the Performance Bond required by this Attachment 2.