HomeMy WebLinkAboutO-1861ORDINANCE NO. 1861
AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO FIBER UTILITY
NETWORK INC. D/B/A ALABAMA FIBER NETWORK, ITS SUCCESSORS AND
ASSIGNS ("FRANCHISEE") FOR THE PURPOSE OFCONSTRUCTING AND
MAINTAINING A FIBER-OPTIC INFRASTRUCTURE NETWORK WITHIN THE
PUBLIC RIGHTS -OF -WAY WITHIN THE CITY OF FAIRHOPE, ALABAMA
WHEREAS, the City of Fairhope, Alabama ( "Municipality" or "City") has jurisdiction
over the use of public rights -of -way in the City in which it now or hereafter holds any property
interest, including, but not limited to public streets, roadways, highways, bridges, land paths,
boulevards, avenues, lanes, alleys, sidewalks, circles, drives, public easements, public utility
easements, dedicated utility strips, and rights -of -way dedicated for compatible uses now or
hereafter held by City (but excluding City parks or recreation areas)("Public ROW'); and
WHEREAS, ("the Franchisee") desires to construct install, maintain, operate, and control
a fiber optic infrastructure network in Public ROW ("Network") for the purpose of offering
communications services ("Services'), including broadband Internet access service as defined in
47 C.F.R. § 8.I(b) ("Broadband Internet Services") and Voice over Internet Protocol services,
but excluding multichannel video programming services over a cable system that would be subject
to a cable franchise to residents and businesses in the City ("Customers"); and
WHEREAS, the Franchisee has requested a franchise from the City in order to construct
and maintain a fiber-optic infrastructure network within the corporate limits of the City; and
WHEREAS, the City Council wishes to accommodate the Franchisee's request and grant
a franchise to allow Franchisee to construct and maintain a fiber-optic infrastructure network in
accordance with the terms and conditions contained herein.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCILOFTHE CITY
OF FAIRHOPE, ALABAMA, AS FOLLOWS:
DEFINED TERMS
A. "Broadband Services' means the transmission of information using optical fiber including
without limitation intemet services.
B. "City" means the City of Fairhope, Alabama.
C_ "Code" means the City of Fairhope, Alabama Municipal Code of Ordinances, as may from
time to time be amended.
D. "Franchisee" means Fiber Utility Network, Inc. d/b/a/ Alabama Fiber Network and its
successors and assigns.
E. "Governing Body" or "City Council" means the City Council of the City of Fairhope,
Alabama.
"Gross Revenues" means all local revenue, in whatever form and from all sources,
determined in accordance with generally accepted accounting principles that is received or
accrued by Franchisee from Franchisee's provision of Broadband services within the City
with a deduction for Franchisee's uncollectible accounts, but without deduction for
operating expenses, accruals, or any other expenditure.
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Notwithstanding the foregoing, Gross Revenue shall not include any taxes on Broadband
services furnished by Franchisee that are imposed by any City, state, or other governmental
unit and collected by Franchisee for such governmental unit.
G. "Network Facilities" means equipment and facilities that may include fiber optic cables,
lines, wires, or strands; conduits, vaults, access manholes and handholes; electronic
equipment; power generators; batteries; pedestals; boxes; cabinets; vaults; and other
similar facilities
H. "Person" means any natural or corporate person, business association or other business
entity including, but not limited to, a partnership, sole proprietorship, political subdivision,
public or private agency of any kind, utility, successoror assign of any of the foregoing, or
any other legal entity.
"Use Fee" means the fee paid by the Franchisee to the City for locating, maintaining and
operating Network Facilities in the Rights -of -Way for theprovision of Broadband Services.
AGREEMENT
In consideration of the mutual promises made below, the City and Franchisee agree as follows:
1. Permission to Use and Occuuv.
1.1 Permission to Use and Occuov Public ROW. Municipality grants Franchisee
permission to use and occupy the Public ROW (the "License"j for the purpose of
constructing, installing, repairing, maintaining, operating, and if necessary,
removing the Network and the related Network Facilities (the "Work"). This
Agreement and the License do not authorize Franchisee to use any property other
than the Public ROW as agreed herein. Franchisee's use of any other Municipality
property, including poles and conduits, will be, subject to mutual agreement,
governed under a separate written agreement regarding that use.
1.2 Subiect to State of Alabama and Local Law. This Agreement and the License are
subject to Municipality's valid authority under the State of Alabama (at times,
herein "State") and local laws as they exist now or may be amended from time -to -
time, and subject to the conditions set forth in this Agreement.
1.3 Subiect to Municipalitv's Rieht to Use Public ROW. This Agreement and the
License are subject and subordinate to Municipality's prior and continuing right to
use the Public ROW, including constructing, installing, operating, maintaining,
repairing, or removing sewers, water pipes, storm drains, gas pipes, utility poles,
overhead and underground electric lines and related facilities, and other public
utility and municipal uses.
1.4 Subiect to Pre -Existing Proaertv Interests. Municipality's grant of the License is
subject to all valid pre-existing easements, restrictions, conditions, covenants,
encumbrances, claims of title or other property interests that may affect the Public
ROW. Franchisee will obtain at its own cost and expense any permission or rights
as may be necessary to accommodate such pre-existing property interests.
1.5 No Grant of Property Interest, The License does not grant or convey any property
interest.
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1.6 Non -Exclusive. The rights granted to Franchisee pursuant to this Agreement are
non-exclusive. Municipality expressly reserves the right to grant licenses, permits,
franchises, privileges or other rights to any other individual, corporation,
partnership, limited liability company, trust, joint stock company, business trust,
unincorporated association, joint venture, governmental authority or other entity of
any nature whatsoever ("Person'), as well as the right in its own name as a
municipality, to use the Public ROW for similar or different purposes allowed
Franchisee under this Agreement. This Agreement does not establish any priority
forthe use of the Public ROW by Franchisee or by any present or future franchisees
or other permit holders. In the event of any dispute as to the priority of use of the
Public ROW the first priority shall be to the public generally, the second priority to
Municipality in the performance of its various functions, and thereafter, as between
Franchisee and other franchisees and permit holders, as determined by Municipality
in the exercise of its reasonable powers, including the police power and other
powers reserved to and conferred on it by the State of Alabama consistent with the
rights granted to Franchisee pursuant to this Agreement.
1.7 Backuo Power, Franchisee shall not use a permanent or semi -permanent internal
combustion engine (such as a gasoline or natural gas -powered electric generator) to
provide backup power at any point or points on the Network Facilities without
Municipality's prior written approval. Such approval may be granted subject to
conditions, such as relating to testing times (e.g., not in the middle of the night),
screening, noise levels, and temperature and safe discharge of hot exhaust gasses.
Municipality hereby grants Franchisee approval to use backup power generating
devices, including devices with permanent or semipermanent internal combustion
engines, at i is network huts ices and inside buildings oron land owned by Franchisee
subject to the specific conditions provided for in the network but leases entered into
between Franchisee and Municipality for the use of land owned by Municipality,
and any applicable building code requirements.
1.8 Limitation on Use Riahts. Nothing in this Agreement shall be construed as requiring
Franchisee to alter the manner in which Franchisee attaches equipment to the poles,
if any poles are allowed by Municipality, or alter the manner in which it operates
and maintains its equipment.
2. Franchisee's Obligations
ions..
2.1 Individual Permits Reouired. Franchisee will obtain Municipality's approval of
required individual encroachment, construction, repair and maintenance of the
Network Facilities and othernecessary permits before placing its Network Facilities
in the Public ROW or other property of Municipality as authorized. Franchisee will
pay all lawful permit, processing, field marking, engineering, and inspection fees
associated with the issuance of individual permits by Municipality.
2.2 Franchisee's Sole Cost and Exoense. Franchisee will perform the Work at its sole
cost and expense.
2.3 Comoliance with Laws. Franchisee will comply with all applicable federal, state
and local laws, regulations and ordinances when performing the Work. Franchisee
shall comply in all respects with all applicable codes. Franchisee will place its
Network Facilities in conformance with the required permits, plans, and drawings
approved by Municipality.
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2.4 Reasonable Care. Franchisee will exercise reasonable care when performing the
Work and will use commonly accepted practices and equipment to minimize the
risks of personal injury, property damage, soil erosion, and pollution of surface or
groundwater.
2.5 No Nuisance. Franchisee will maintain its Network Facilities in good and safe
condition so that its Network Facilities do not cause a public nuisance.
2.6 No Burden on Public ROW. Minimum interference. Franchisee shall not erect,
install, construct, repair, replace or maintain the Network Facilities in such a fashion
as to unduly burden the present or future use of the Public ROW. The Network
Facilities shall be erected and maintained by Franchisee so as to cause the minimum
interference with the use of the Public ROW and with the rights or reasonable
convenience of property owners who adjoin any of the Public ROW. Additionally,
prior to entering onto private property or right-of-way to construct, operate, or
repair its System, Franchisee shall take photographs of the location of the area to
be disturbed and also give the person residing on or using the property adequate
notice that it intends to work on the property, a description of the work it intends to
perform, and a name and phone number the person can call to protest or seek
modification of the work. Work shall be done in a manner that causes the least
interference with the rights and reasonable convenience of property owners,
residents, and users. A door hanger detailing the aforementioned information and
attached to the front door of the premises at least forty-eight (48) hours prior to
commencement is required. Also, temporary signage listing the name of the
company contracting installation and contact information thereforshall be installed
at the entrance to any road that leads to the work area. Such signage must be placed
at least forty-eight (48) hours prior to commencement of work and must include
print at least 6-inches in height in order to be easily seen from the road. The location
of Network Facilities within, on, over, under, across or through the Public ROW
shall, in all cases, be subject to prior Municipality approval through the applicable
permitting process.
2.7 Limitation on Franchise Riehts. Except as may otherwise be agreed upon in writing
by Municipality and Franchisee, the rights granted to Franchisee herein do not
include the right to (i) excavate in, occupy or use any Municipality park,
recreational areas or other Municipality property other than the Public ROW, or (ii)
attach or locate any Network Facilities to or on, or otherwise utilize any of, any
Municipality -owned property or facilities or structures other than Public ROW,
including without limitation light poles, towers, buildings andtrees. The use of such
Municipality -owned property or facilities by Franchisee shall be considered by
Municipality on a case -by -case basis and may be subject to payment of additional
compensation to Municipality. Similarly, the rights granted herein by Municipality
to Franchisee do not include the right to situate any Network Facilities on poles or
other property owned by entities other than Municipality and situated in the Public
ROW. It shall be the responsibility of Franchisee to negotiate any pole -attachment
agreements or similar agreements with the owners ofsuch poles or facilities, and to
pay to such owners any required compensation.
2.8 Preconstruction Meetings. Franchisee shall attend all reasonably necessary
preconstruction meetings as mutually agreed with Municipality.
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2.9 Restoration of Property. Franchisee shall restore and replace at its sole cost and
expense, in a manner reasonably approved by Municipality, any public or private
property, real orpersonal, orportion of the Public ROW, that is disturbed, damaged
or injured by the construction, operation, maintenance or removal of the Network
Facilities to at least as good condition as that which existed prior to the disturbance
if such damage is directly caused by Franchisee's Work and no other Person (other
than Franchisee's personnel, employees, agents, contractors, subcontractors or
Affiliates) is responsible for the damage (e.g., where a Person other than Franchisee
fails to accurately or timely locate its underground facilities as required by
applicable law). Franchisee's obligation in this subsection shall be limited by, and
consistent with, any applicable seasonal or other restrictions on construction or
restoration work. Franchisee's restoration work shall start promptly but not more
than thirty (30) days from Franchisee being notified of the problem in question.
Upon the failure of Franchisee to effect such repair or restoration, Municipality may
charge a penalty of One Hundred and No/100 Dollars ($100.00) per day for each
day, such failure continues or Municipality may perform the necessary work, and
Franchisee shall promptly reimburse Municipality for Municipality's actual,
reasonable, and documented costs in connection with such repair or restoration plus
twenty percent (20%).
2.10 Emergency Notification, Franchisee shall provide Municipality throughout the
Term of the Franchise with a twenty-four (24) hour emergency telephone number
at which a representative of Franchisee (not voicemail or a recording) can be
accessed in the event of an Emergency.
2.11 Duty to Undereround. It is the policy of Municipality to have lines and cables
placed underground to the greatest extent reasonably practicable, as determined by
the Municipality. In furtherance of this policy. Franchisee agrees that it shall place
its constructed lines and cables underground to the extent reasonably practicable,
as determined by the Municipality, provided however the Franchisee's network but
sites may be above ground.
2.12 Discontinuance and Removal of the Network Facilities. Upon the revocation,
termination, or expiration of this Agreement, unless an extension is granted by
Municipality in its discretion. Franchisee shall discontinue the provision of Services
and all rights of Franchisee to use the Public ROW for the provision of Services
shall cease. Franchisee, at the direction of Municipality, shall remove any portion
of the Network Facilities and restore such Public ROW and other affected property
in accordance with Section 2.9 hereof within the Public ROW. Alternatively, if
mutually agreed by Franchisee and Municipality, such Network Facilities may be
abandoned in place or transferred to Municipality. This Section 2.12 shall not apply
to facilities constructed and owned by the Franchisee or an Affiliate of Franchisee,
where such facilities are used by Franchisee or such Affiliate to lawfully provide
other services. No surety on any right-of-way bond ("ROW Bond") nor any letter
of credit shall be discharged until Municipality hascertified to Franchisee in writing
that the Network Facilities has been dismantled, removed, and all other property
restored, to the satisfaction of Municipality.
2.13 Tree Trimmini, Franchisee may trim trees upon and overhanging the Public ROW
so as to prevent the branches of such trees from coming into contact with the
Network Facilities. Franchisee shall minimize the trimming of trees to trimming
only those trees that are essential to maintain the integrity of the Network Facilities.
Except in emergencies, (i) all trimming of trees in the Public ROW or on Municipal
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property shall have the prior approval of Municipality and shall be done under the
direction of the Municipality's horticulturist, or in the event that office is vacant, the
Municipality's Public Works director, and (ii) all trimming of trees on private
property shall require the consent of the property owner. All trimming shall be done
at the expense of Franchisee. Franchisee is responsible for the removal and disposal
of any limbs and debris from their tree trimming operation.
2.14 Location of Facilities. Franchisee shall keep accurate, complete, and current maps
and records of the Network Facilities and all Franchisee facilities and, subject to
applicable confidentiality provisions, shall make available electronic copies of such
maps and records to Municipality, as set forth below.
2.14.1 Franchisee shall furnish "as -built" maps and records to Municipality in
electronic, ESRI-compatible format (or in another mapping format mutually agreed
to by the Parties). Franchisee shall provide Municipality copies of any new or
revised "as -built" or comparable drawings as and if they are generated for portions
of the Network Facilities located within Municipality and will provide them to
Municipality upon reasonable request and on a mutually -agreed timetable (e.g.,
piecemeal following the closure of each permit, or all at once after all the Work is
complete), subject to applicable confidentiality protections. Upon request by
Municipality in an emergency, Franchisee, as soon as reasonably practicable, shall
inform Municipality of any changes from such maps and records previously
supplied and shall mark up any maps provided by Municipality so as to show the
location of the Network Facilities.
2.14.2 The "as built" maps shall include at a minimum all Network Facilities
located in a given segment, and facility routings and shall be drawn to scale.
2.14.3 Municipality agrees that Franchisee may provide route maps rather than the
as -built maps specified above. "Route maps" means "as -built" maps with only the
following information removed: information on the number of lines, whether the
lines are copper or fiber and the nature of any electronics. Concrete pads for
pedestals and enclosures for equipment or pedestals shall be shown on Route maps.
2.15 Utility Notification Proeram. Franchisee shall comply with applicable state and
local utility location and notification laws.
2.16 lnsoection by Municinaiity. Network Facilities shall be subject to inspection by
Municipality to the extent reasonably requested by Municipality and reasonably
necessary to assure compliance by Franchisee with the terms of this Agreement.
Municipality shall inspect Network Facilities at reasonable, mutually agreed upon
times and upon reasonable notice to Franchisee; provided, however, the inspection
shall not interrupt or interfere with any services provided by Franchisee.
2,17 Franchise Fee. As consideration for the use of the City's Public ROW as set forth
in this Agreement, the Franchisee shall pay the City a Use Fee of five percent (5%)
of its Gross Revenues collected by the Franchisee during each calendar year of
operation under this agreement based on unaudited financials. The Franchisee will
pay the Use Fee collected from its Customers for the Broadband Services annually,
within forty-five (45) days of the close of Franchisee's fiscal year, which ends
December 31. Each Use Fee payment shall be accompanied by a certified report
from a representative of the Franchisee, which shows the basis for the computation
of all recurring monthly Broadband Service charges from the provision of
Broadband Services to Persons located within the City limits during the
Ordinance No. 1861
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Franchisee's fiscal year for which such payment is made. In the event that the Use
Fee payment is not actually received by the City on or before the applicable due
date set forth in this section or is underpaid, Franchisee shall pay in addition to the
Use Fee payment, or sum due, interest from the due date at the state legal interest
rate of 8% annually (Alabama Code § 8.8.I). If the Franchisee does not provide
Broadband Services to Customer(s) within the municipal boundaries of the City,
then the Franchisee shall pay the City annually (190) per linear foot for the use of
the City's Public ROW once the fiber is lit and carrying traffic commercially. All
amounts paid shall be subject to audit and recomputation by City and acceptance of
any payment shall not be construed as an accord that the amount paid is in fact the
correct amount. In the event the City should conduct a review of Franchisee's books
and records and such review indicates a Use Fee underpayment of five percent (5%)
or more during the entire period reviewed, the Franchisee shall assume all
reasonabledocumented costs of such audit, and pay same upon demand by the City_
All documents pertaining to financial matters, which may be the subject of an audit
by the City, shalt be retained by the Franchisee for a minimum period of six (6)
years. For failure to provide data, documents, reports or information or to cooperate
with Municipality during an audit as provided herein, the penalty shall be Two
Hundred Fifty and No/100 Dollars ($250.00) per day for each day, or part thereof,
such failure occurs or continues.
3. Munici alltv's Obii ag tip
3.1 Fmereencv Removal or Relocation by Municinality. in the event of a public
emergency that creates an imminent threat to the health, safety, or property of
Municipality or its residents, Municipality may remove or relocate the applicable
portions of the Network Facilities without prior notice to Franchisee. Municipality
will, however, make best efforts to provide prior notice to Franchisee before making
an emergency removal or relocation. In any event, Municipality will promptly
provide to Franchisee a written description of any emergency removals or
relocations of Franchisee's Network Facilities. Franchisee will reimburse
Municipality for its actual, reasonable, and documented costs or expenses incurred
for any such work performed by Municipality, the direct cause of which was
Franchisee's construction, installation, operation, maintenance, repair, or removal
of its Network Facilities.
3.2 Relocation to Accommodate Governmental Purposes. If Franchisee's then- existing
Network Facilities would interfere with Municipality's planned use of the Public
ROW or other Municipality property for a legiti mate noncommercial governmental
purpose, such as the construction, installation, repair, maintenance, or operation of
a new water, sewer, or storm drain line, or a public road, curb, gutter, sidewalk,
park, or recreational facility, or in the event the affected Public ROW is lawfully
vacated, eliminated, discontinued, or closed by the Municipality, Franchisee will,
upon written notice from Municipality, relocate its Network Facilities at
Franchisee's own expense to such other location or locations in the Public ROW as
may be mutually agreed by the parties, taking into account the needs of the
Municipality's governmental purpose and Franchisee's interest in maintaining the
integrity and stability of its Network. Franchisee will relocate its Network Facilities
within a commercially reasonable period of time agreed to by the parties, taking
into account the urgency of the need for relocation, the difficulty of the relocation,
and other relevant facts and circumstances, except that Municipality may not
require Franchisee to relocate or remove its Network Facilities with less than ninety
(90) days' notice. Upon the failure of Franchisee to relocate any Network Facilities
Ordinance No. 1861
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within a reasonable period of time in accordance with this subsection, Municipality
may effect such relocation, and Franchisee shall promptly reimburse Municipality
for all actual, reasonable, and documented costs and expenses incurred by
Municipality in connection with such relocation.
3.3 Relocation to Accommodate Non -Governmental Purposes. If Franchisee's then -
existing Network Facilities would interfere with (a) Municipality's planned use of
the Public ROW for a non -governmental (e.g,, commercial) purpose, or (b) a third-
party's use of the Public ROW, Franchisee will not be required to relocate its
Network Facilities.
3.4 Non -Discrimination. Any agreements between Municipality and Franchisee that
provide Franchisee access to public infrastructure, poles, conduits, assets, and
Public ROW will be available to other network operators that offer broadband
Internet access services, on rates, terms, and conditions that are as favorable as
those Municipality provides Franchisee for the same access.
4. Contractors and Subcontractors.
4.1 Use of Contractors and Subcontractors. Franchisee may retain contractors and
subcontractors to perform the Work on Franchisee's behalf.
4.2 Contractors to be Licensed. Franchisee's contractors and subcontractors used for
the Work will be properly licensed under applicable law, regulations and
ordinances.
4.3 Authorized Individuals. Franchisee's contractors and subcontractors may submit
individual permit applications to Municipality on Franchisee's behalf, so long as
the permit applications are signed by individuals that Franchisee has authorized to
act on its behalf via a letter of authorization provided to Municipality in the fort
attached as Exhibit A ("Authorized Individuals"). Municipality will accept for
review permit applications under this Agreement submitted and signed by
Authorized Individuals, and will treat those applications as if they had been
submitted by Franchisee under this Agreement.
5. Defense and Indemnitv.
5.1 Indemnification. Franchisee shall indemnify, defend, and hold harmless
Municipality, and governmental subdivisions thereof, and its respective City
Council members, officers, boards, commissions, attorneys, agents, and employees
(hereinafter referred to as "Indemnitees"), from and against any and all liability,
obligation, damages, penalties, claims, costs, charges, losses and expenses
(including, without limitation, reasonable fees and expenses of attorneys) arising
from any third -party claim of personal injury or property damage that may be
imposed upon, incurred by or be asserted against the lndemnitees by reason of any
negligent act or omission of Franchisee, its personnel, employees, agents,
contractors, subcontractors or affiliates, which may arise out of (i) the construction,
installation, operation, maintenance or condition of the Network Facilities, or (ii)
the Franchisee's failure to comply with any applicable Federal, State or local statute,
ordinance or regulation ("Third Party Legal Proceeding"). Franchisee's
indemnification obligation shall riot extend to liability to the extent caused by the
negligence or willful misconduct by any Indemnitee or any other third party (to the
extent such third parties are not Franchisee personnel, employees, agents,
contractors, subcontractors or affiliates as described above in this Section 3.1).
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5.2 Assumotion of Risk. Franchisee undertakes and assumes for its officers, agents,
contractors and subcontractors and employees, all risk of dangerous conditions, if
any, on or about any Municipality -owned or controlled property, including Public
ROWs.
5.3 Defense of indemnitees. In the event any Third Party Legal Proceeding shall be
brought against the Indemnitees upon written notice from Municipality in
accordance with Section 5.4 hereof. Franchisee shall, at Franchisee's sole cost and
expense, assume sole control of the indemnified portion of the Third Party Legal
Proceeding, subject to the following: (i) Municipality may appoint its own non -
controlling counsel, at its own expense, and (ii) any settlement requiring
Municipality to admit liability, pay money, or take (or refrain from taking) any
action, will require Municipality's prior written consent, not to he unreasonably
withheld, conditioned, or delayed.
5.4 Notice. C000eration and Expenses. Municipality must give Franchisee written
notice of any Third -Party Legal Proceeding not later than twenty (20) days after
Municipality becomes aware of the Third -Party Legal Proceeding. Municipality
shall reasonably cooperate with Franchisee inthe defense ofthe Third -Party Legal
Proceeding and nothing herein shall be construed to prevent Municipality from
appointing its own noncontrolling counsel at Municipality's sole cost and expense.
6. ROW Bond. Within thirty (30) days of the Effective Date, Franchisee shall provide
Municipality with, and shall maintain, a ROW Bond from a surety company in the
amount of One Hundred Thousand Dollars ($100,000) and in a form reasonably
acceptable to Municipality, as security for the faithful performance by Franchisee of the
provisions of this Agreement.
6.1 The rights provided Municipality by this Section and its bond are in addition to all
other rights of Municipality whether reserved by this Agreement or authorized by
law, and no action, proceeding or exercise of a right with respect to such bond or
guarantee shall affect any other rights Municipality may have, except that
Municipality shall not he entitled to multiple remedies for the same violation.
Insurance.
7.1 Franchisee will carry and maintain:
7.1.1 Commercial General Liability (CGL) insurance, with policy limits not less
than $2,000,000 in aggregate and $2,000,000 for each occurrence covering bodily
injury and property damage with the following features: (a) CGL primary insurance
endorsement, and (b) CGL policy will include an endorsement which names
Municipality, its employees, and officers as additional insureds.
7.1.2 Workers' Compensation insurance with policy limits not less than the
Municipality's requirements.
7.2 All insurance certificates, endorsements, coverage verifications and other items
required pursuant to this Agreement will be provided to the City Clerk with
Franchisee's acceptance of this Franchise. Franchisee shall annually provide
Municipality with a certificate of insurance evidencing such coverage. Failure to
obtain and maintain any insurance policy required by this Section shall be deemed
a material breach of this Agreement and shall he grounds for termination of this
Agreement and the Franchise.
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7.3 Contractors. Franchisee's contractors and subcontractors working in the Public
ROW shall carry in full force and effect commercial general liability, automobile
liability and workers' compensation and employer's liability insurance
commensurate with the scope of their work. In the alternative, Franchisee, at its
expense, may provide such coverages for any or all its contractors or subcontractors
(such as by adding them to Franchisee policies). Franchisee's contractors and
subcontractors shall provide Municipality with certificates of insurance evidencing
such coverage when applying for permits to work in the Public ROW.
7.4 Insurance Primarv. Franchisee's insurance coverage shall be primary insurance
with respect to Municipality, its officers, agents, employees, elected and appointed
officials, departments, boards, and commissions (collectively "them"), but only for
actions of Franchisee and for whom Franchisee is responsible. Any insurance or
self-insurance maintained by any of them shall be in excess of Franchisee's
insurance and shall not contribute to it (where "insurance or self- insurance
maintained by any of them" includes any contract or agreement providing any type
of indemnification or defense obligation provided to, or for the benefit of them,
from any source, and includes any self-insurance program or policy, or self -insured
retention or deductible by, for or on behalf of them).
9. Term. This Agreement is effective on the later of (a) the date the last party to sign
executes this Agreement and (b) the date on which any implementing ordinance becomes
effective in accordance with its terms and State law ("Effective Date"). This Agreement
will expire automatically on the tenth ( loth) anniversary of the Effective Date ("Original
Term"), unless earlier terminated in accordance with the provisions herein.
9. Termination.
9.1 Termination by Municipality. Municipality may terminate this Agreement if
Franchisee is in material breach of the Agreement, provided that Municipality must
first provide Franchisee written notice of the breach and not less than ninety (90)
days to cure, unless the cure cannot be reasonably accomplished in that time period,
in which case the Municipality may in its discretion grant Franchisee additional
time upon the request of Franchisee, provided that Franchisee must commence its
efforts to cure within that time period and the cure period will continue as long as
such diligent efforts continue, provided further if such period is anticipated to, or
does, extend more that ninety (90) days, it shall be in the sole discretion of the
Municipality whether to grant such cure extension beyond ninety (90) days. No
termination under this subsection will be effective until the relevant cure period has
expired.
9.2 Termination by Franchisee. Franchisee may terminate this Agreement for
convenience upon ninety (90) days' written notice to Municipality. Franchisee may
not abandon its Network or any portion thereof without compensating City for
damages resulting from the abandonment, including all costs incident to removal of
the Fiber Optic Infrastructure Network.
10, Assl2nment. Except as set forth below, neither parry may assign or transfer its rights or
obligations under this Agreement, in whole or part, to a third party, without the written
consent of the other party. Any agreed upon assignee will take the place of the assigning
party, and the assigning party will be released from all of its rights and obligations upon
such assignment.
Ordinance No. 1861
Page -11-
10.1 Following any assignment of this Agreement to an Affiliate, Franchisee will remain
responsible for such Affiliate's performance under the terms of this Agreement. For
purposes of this Section, (a) "Affiliate" means any Person that now or in the future,
directly or indirectly controls, is controlled with or by, or is under common control
with Franchisee; and (b) "control" means, with respect to: (i) a U.S. corporation,
the ownership, directly or indirectly, of fifty percent (50%) or more of the voting
power to elect directors thereof, or (ii) a non-U.S. corporation, if the voting power
to elect directors thereof is less than fifty percent (50%), the maximum amount
allowed by applicable law; and (iii) any other Person, fifty percent (50%) or more
ownership interest in said Person, or the power to direct the management of such
Person.
11. Notice. Every notice or response required by this Agreement to be served upon the City
or the Franchisee shall he in writing and shall be deemed to have been duly given to the
required party three (3) business days after having been posted in a properly sealed and
correctly addressed envelope when hand delivered or sent by certified or registered mail,
postage prepaid as follows:
The notices or responses to the City shall be addressed as follows:
City of Fairhope, Alabama
ATTN: MAYOR
161 North Section Street
City of Fairhope, Alabama 36532
The notices or responses to the Franchisee shall be addressed as follows:
Fiber Utility Network, Inc. d/b/a Alabama Fiber Network
103 Jesse Samuel Hunt Blvd.
Suite 203
Prattville, Alabama 36066
Attn: President
The City and the Franchisee may designate such other address or addresses from time to
time by giving written notice to the other party as set forth in this section.
12. General Provisions
12.1 Franchise Records. Franchisee shall prepare and maintain any records or reports
that are required of it by federal, State, or local law. Municipality shall have the
right to obtain, in the format kept by Franchisee in the ordinary course of business,
copies of such records and reports as appropriate and reasonably necessary to
determine whether Franchisee is in compliance with this Agreement. Franchisee
reserves the right to object to any request made under this Section as unnecessary,
unreasonable, or inappropriate under the circumstances and to seek appropriate
confidentiality protections for any information to be produced to Municipality.
12.2 Entire Franchise, This Agreement, including the Exhibits attached hereto, contains
the entire agreement between the parties and all prior franchises, negotiations and
agreements relating to the Network Facilities or provision of Broadband Services
are merged herein and hereby superseded.
Ordinance No. IA61
Page -12-
12.3 Conferences. As may be mutually agreed upon between the parties from time to
time, the parties hereby agree to meet at reasonable times on reasonable notice to
discuss any aspect of this Agreement, the provision of Broadband Services or the
Network Facilities during the Term hereof.
12.4 Governing law, This Agreement shall be deemed to have been made and shall be
construed and interpreted in accordance with the law of the State of Alabama. Each
party to this Agreement hereby irrevocably agrees that any legal action or
proceeding arising out of or related to this Agreement or any of the agreements or
transactions contemplated hereby shall be brought to the Circuit Court of Baldwin
County, Alabama and hereby expressly submits to the personal jurisdiction and
venue of such courts for the purposes thereof and expressly waives any claim of
improper venue and any claim that such courts are an inconvenient forum.
12.5 Waiver of Comnliance, No failure by either party to insist upon the strict
performance of any covenant, agreement, term or condition of this Agreement, or
to exercise any right, term or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or such covenant, agreement, term or
condition. No waiver of any breach shall affect or alter this Agreement, but each
and every covenant, agreement, term, or condition ofthisAgreement shall continue
in full force and effect with respect to any other then existing or subsequent breach
thereof. Municipality may waive any obligation of Franchisee under this
Agreement, in whole or in part, at any time, but such waiver must be in writing, and
signed by the Municipality's Mayor or designee.
12.6 Independent Contractor Relationship, The relationship of Franchisee to
Municipality is and shall continue to be an independent contractual relationship,
and no liability or benefits, such as worker's compensation, pension rights or
liabilities, insurance rights or liabilities or other provisions or liabilities, arising out
of or related to a contract for hire or employer/employee relationship, shall arise or
accrue to either party or either party's agents or employees as a result of the
performance of this Agreement, unless expressly stated in this Agreement.
12.7 Severabilitv. If any section, paragraph, or provision of this Agreement shall be held
to be invalid or unenforceable for any reason, the invalidity or unenforceability of
such section, paragraph, or provision shall not affect any of the remaining
provisions of this Agreement.
12.8 Captions. All captions are for convenience of use and have no substantive effect.
12.9 Franchise Accepted. Franchisee further acknowledges by execution and delivery of
thisAgreement that it has carefully read the terms and conditions of this Agreement
and the Ordinance and accepts the obligations imposed hereby and thereby
regardless of whether such obligations are contained in this Agreement or the
Ordinance, or both.
12.10 Binding Agreement. Subject to Section 2.3, the parties agree that this Agreement
complies with State and Federal law as of the Effective Date and agree to be bound
by the provisions hereof during the full term hereof, except that the parties also
agree to recognize and be bound by any change in any State or Federal law, even if
such law materially affects the terms of this Agreement.
Ordinance No. 1861
Page -13
12.11 Other Covenants. Franchisee for itself and its Affiliates covenants that Franchisee
and its Affiliates shall not bring or support, directly or indirectly, any suit, claim, or
proceeding (judicial or administrative) challenging any term of this Agreement or
contending that Municipality or Franchisee did not have the authority to impose or
agree to such terms.
12.12 Reserved Riehts. Municipality reserves all rights and powers under (i) its police
powers and (ii) powers conferred by Federal, State, or local law of which
Municipality may not legally and contractually divest itself. In particular,
Municipality reserves the right to alter, amend or repeal its municipal code as it
determines shall be conducive to the health, safety and welfare of the public, or
otherwise in the public interest; provided that any such alteration, amendment or
repeal shall be applicable to all similarly situated franchisees of the Municipality,
in such a manner and to such an extent so as not top lace Franchisee at a material
competitive disadvantage. In the event the municipal code or other applicable local
law is amended in a manner that would materially alter Franchisee's rights and
obligations under this Agreement, the Municipality will provide Franchisee with
reasonable advance notice of such pending amendment and, upon written request
of Franchisee, negotiate in good faith to modify this Agreement to ameliorate any
adverse effects such amended municipal code provisions would have on
Franchisee's performance under this Agreement. Municipality agrees that by
accepting this Agreement, Franchisee has not waived its right to object to the
application to it of actions by Municipality pursuant to its reserved rights or police
powers.
12.13 City Representative. The Mayor or designee as provided in writing by the Mayor
to the Franchisee (the "City Representative"), shall be Municipality's representative
for all purposes of this Agreement. Except where City Council action is required by
this Agreement or by law, all decisions, judgments, approvals, requests, notices or
other actions of Municipality required or permitted under this Agreement shall be
made, obtained, issued or delivered or otherwise effected on behalf of Municipality
by the Mayor, or designee.
12.14 Authority. Franchisee represents, covenants and warrants to Municipality as of the
Effective Date that: (a) Franchisee is duly constituted, in good standing and
qualified to do business in the State of Alabama, (b) Franchisee will file when due
all forms, reports, flees and other documents necessary to comply with applicable
laws, and (c) the signatories signing on behalf of Franchisee have the requisite
authority to bind Franchisee pursuant to Franchisee's organizational documents.
12.15 Publication, This Franchise shall be published in accordance with applicable local
and state law and Grantee, shall pay the reasonable cost of any required publication
of this Franchise.
12.16 Acceptance. Franchisee's acceptance of this Agreement shall be in writing in a
form approved by the City attorney and shall be accompanied by delivery of a
check, approved by the City, in the amount of Four Thousand Dollars ($4,000.00)
made payable to the City of Fairhope, Alabama and shall serve to recover expenses
incurred by the City in the granting of this Franchise.
SIGNATURE PAGE TO FOLLOW
ADOPTED AND APPROVED THIS 23RD DAY OF MARCH, 2026
Ordinance No.
Page -14-
CITY OF FAIRHOPE, ALABAMA
BY:
Ja s Reid Conyer, /
Ti e: Council President
ATTEST:
i
4.nks,M C
FIBER UTILITY NETWORK, INC.
BY:
Terry Metze
Title: Chief Executive Officer
EXHIBIT A
FORM OF LETTER OF AUTHORIZATION
Alabama Fiber Network.
382 Leavcll Circle Suite C
Montgomery, Alabama 36117
City of Fairhope
Attn: Mayor
P.U. Drawer 429
City of Fairhope, AL 36533
Dear Mayor Sullivan:
In accordance with Section 4.3 of the Broadband Services Franchise Agreement dated
between City of Fairhope, Alabama and Alabama Fiber Network, hereby designates the
following Authorized Individuals (as that term is defined in the Agreement), who may submit
and sign permit applications on behalf of the Franchisee.
1 . Mike Wise, VP Operations & Construction
2. Tina Stewart, Sr. Director of Project Management
3. Sheryl Kilgore, CFO
4. Terry Metze, CEO
This authorization may be withdrawn or amended and superseded by a written amendment to this
Letter of Authorization, which will be effective 24 hours after receipt by the Municipality.
Kind regards,
Terry Metze., CEO
Alabama Fiber Network
Fairhope AL - Alabama Fiber Network Draft
Document 2-3-26
Final Audit Report 2026-02-20
Created: 2026-02-20
By: Tina Stewart (tstewart@alabamafibernetwork.com)
Status: Signed
Transaction ID: CBJCHBCAABAAgpclFz2xcPK8fXxv1_CpWYhluUo8iiWM
"Fairhope AL - Alabama Fiber Network Draft Document 2-3-26"
History
Document created by Tina Stewart (tstewart@alabamafibernetwork.com)
2026-02-20 - 3:38:36 PM GMT
P+ Document emailed to Terry Metze (tmetze@alabamafibernetwork.com) for signature
2026-02-20 - 3:38:41 PM GMT
Email viewed by Terry Metze (tmetze@alabamafibernetwork.com)
2026-02-20 - 3:52:26 PM GMT
d, Document e-signed by Terry Metze (tmetze@alabamafibernetwork.com)
Signature Date: 2026-02-20 - 3:53:22 PM GMT - Time Source: server
Agreement completed.
2026-02-20 - 3:53:22 PM GMT
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