AN ORDINANCE WHEREBY THE VILLAGE OF CAPITAN GRANTS VALOR TELECOMMUNICATIONS
OF NEW MEXICO, LLC, AND ITS SUCCESSORS AND ASSIGNS, THE NON-EXCLUSIVE FRANCHISE,
LICENSE, RIGHT AND PRIVILEGE TO CONSTRUCT, ERECT, OPERATE AND MAINTAIN ITS
TELECOMMUNICATIONS BUSINESS WITHIN THE LIMITS OF THE VILLAGE OF CAPITAN
Preamble. It is the intent of the parties
that VALOR Telecommunications of New Mexico, LLC, duly authorized to do
business in the State of New Mexico, continue through this franchise to
construct, operate and maintain a telecommunications system in the of Village
of Capitan. The parties intend that the franchise incorporate the Village
of Capitan's lawful exercise of police power and be subject to the lawful
regulation by the New Mexico Public Regulatory Commission and the State
of New Mexico, and to the lawful applications of the Telecommunications Act
of 1996, 47 USC § 253. The parties further acknowledge that the granting
of this franchise results in legitimate costs of doing business for VALOR
which can be recovered from customers in the form of monthly municipal fees,
with such costs reflecting the expense of providing and maintaining the public
rights of way required to provide telecommunications and other essential
public services. It is in the best interests of the Village of Capitan, its
citizens and of VALOR Telecommunications of New Mexico, LLC that this franchise
shall be granted.
THEREFORE, BE IT ORDAINED by the Governing Body
of the Village of Capitan, State of New Mexico:
Section 1. Grant of Authority. The Village
of Capitan, hereinafter called the "Village", hereby grants to VALOR Telecommunications
of New Mexico, LLC, hereinafter called the "Company", its successors and
assigns, the non-exclusive franchise, license, right and privilege to construct,
erect, equip, lease, purchase, maintain and operate, in, upon, along, across,
above, over and under the streets, alleys, easements, public ways and public
places now in use or dedicated, and all extensions thereof, and additions
thereto, in said Village, its poles, anchors, guys, wires, cables, manholes,
microwave sites, underground conduits, appurtenances, fixtures, and other
telecommunications facilities necessary, proper or convenient for the maintenance
and operation in said Village of the Company's telecommunications business;
provided, however, that the Company shall locate all its transmission and
distribution structures, lines and equipment within the Village so as not
to unnecessarily obstruct the proper use of streets, alleys, public ways
and public places, and to cause minimum interference with the rights or reasonable
convenience of property owners who adjoin any of said streets, alleys, public
ways and public places.
Section 2. Company Liability. The Company
shall, at all times during the life of this franchise, be subject to all
lawful exercise of the police power by the Village as the Village now does
or may hereafter implement by its regulations, or by resolution or ordinance.
The Company shall save harmless and indemnify the Village from all loss sustained
by the Village on account of any suit, judgment, execution, claim or demand
whatsoever, resulting from negligence on the part of the Company in the
construction, maintenance or operation of its telecommunications system
in the Village. This indemnity does not apply to negligence attributable
to persons other than the Company and is not intended to create liability
for the benefit of third parties other than the Company and the Village.
It is agreed that the Village shall notify the Company's representative
in writing within ten days after the presentation of any claim or demand
either by suit or otherwise made against the Village on account of any activity
on the part of the Company specifically:
VALOR Telecom
New Mexico Director of Regulatory Affairs
and Chief Counsel
Coronado Bldg. North Entrance
141 East Palace Ave.
Santa Fe NM 87501
Section 3. Relocations. In the event
of any necessary change in the public roads, streets or highways for purposes
of their proper use, or in the grades of drains thereof which require that
the Company's telecommunications facilities must conform thereto, the Company
shall make any and all reasonable relocations of and changes to its facilities
as the Village may require. The Village shall give the Company written
notice at least 60 days prior to the commencement of the contemplated changes
to provide the Company time within which to make recommendations intended
to minimize its cost of resetting or, changing its facilities. The Village
shall consider the Company's recommendations before it requires the relocation
or changes in the Company's facilities. The Company shall bear the costs
of relocating, changing or removing its facilities for said changes, unless
the Company can properly obtain reimbursement for the costs from an entity
other than the Village.
The Company shall bear the cost for any and all changes made by the Company
for Company reasons in the location of its poles, wires, cables, and underground
conduits, manholes and other telecommunications facilities. Other than
as described herein, the person or entity requesting relocations of or
changes to the Company's facilities shall bear the cost thereof, specifically
including relocations and changes for aesthetic reasons.
Section 4. House Moving and Other Unusual
Uses. Any person or entity, hereinafter called Applicant, desiring
to move a building or other structure along, or to make any unusual use of,
the streets, alleys and public ways of the Village which shall interfere
with the poles, wires or facilities of the Company or the Village, shall
first give notice to the Company and the Village. The Applicant also shall
pay to the Company, and to the Village if its facilities also are affected,
a sum sufficient to cover the expense and damages incident to the cutting,
altering and moving of the wires or other facilities of the Company or the
Village, and the applicant shall present to the Village a receipt from the
Company showing the payment as a prerequisite for obtaining a permit as
required by the Village. Thereafter, upon applicant's presentation of said
permit, the Company shall within a reasonable time provide for and cut, alter
and move said wires and facilities as may be necessary to allow such moving
or other unusual use of the streets, alleys and public ways of the Village.
Section 5. Tree Trimming. The Village
hereby grants to the Company, its successors and assigns and lessees, the
right, privilege and permission to trim trees in and overhanging the streets,
alleys, public ways and public places of the Village, so as to prevent
the branches of such trees from interfering with the Company's telecommunications
operations and the provision of services, consistent with the Village's
regulation of this activity.
Section 6. Consideration. As further
consideration for this franchise, the Company shall pay to the Village, over
the term of this franchise, a total of $20,000 exclusive of all federal and
state excise taxes, as a fair and reasonable amount representing direct costs
of providing and maintaining public rights of way for the provision of VALOR
telecommunications services. The franchise payments shall be paid to the
Village in equal quarterly installments of $1,000. The payments made shall
be due on or before 30 days after the end of each quarter. The amounts paid
by VALOR to the Village under this Franchise shall be applied monthly as
a municipal fee on customer bills.
Section 7. Payment in Lieu of Other Taxes.
In consideration of the franchise payments provided for above, it is
expressly understood and agreed by the Company and the Village that these
payments shall be in lieu of any and all other franchise, license, occupation,
or other forms of excise or revenue taxes based upon or measured by the revenues,
employees, payroll, property, facilities or equipment of the Company, excepting,
however, the following which shall be referred to as the "excepted taxes":
general ad valorem property taxes, special assessments for local improvements
and sales or gross receipts taxes. The franchise payments shall continue,
only so long as the Company is not prohibited from making the payments by
any lawful authority having jurisdiction in the premises. Furthermore, if
the Village does levy, charge or collect or attempt to levy, charge or collect
any other franchise, license, occupation or other form of excise or revenue
taxes of the type above specified in this paragraph, other than excepted
taxes, the Company's obligation to make franchise payments shall be abated
to the extent such other taxes are levied, charged or collected by the Village.
Section 8. Annexations. The Village
or its planning/zoning administrative body shall notify the Company representative
of all proposed additions, annexations, subdivisions or incorporation of
new land areas into the Village. In determining the proposed telephone easements
or routings thereof, the Village or its planning/zoning administrative
body shall consider the Company's recommendations regarding their engineering
feasibility.
Section 9. Non-wavier of Other Rights.
It is expressly understood and agreed by and between the Village and the
Company that neither the grant nor acceptance of this franchise shall constitute
a waiver, either upon the part of the Company or the Village, of any rights
or claims had or made by either with respect to the occupancy of the streets,
alleys, public ways and public places of the Village, under the laws of
the Territory of New Mexico and under the Constitution and general statue
of the State of New Mexico, nor shall anything herein in anyway prejudice
or impair any rights or claims existing independently of this franchise of
the Village or the Company, or its predecessors, successors, assigns or lessees,
with respect to the construction, operation, and maintenance, either before
or after the life of this franchise of a telecommunications system in the
Village.
Section 10. Nondiscrimination. In the
event a competitor of the Company offers basic local exchange services
comparable to the Company's basic local exchange services to persons and/or
entities within the Village and the competitor's comparable services are
not subject to a franchise fee or in lieu of a fee or tax of at least comparable
to the franchise fee required pursuant to Section 6 herein, franchise fee
payments shall be suspended six months from the inception of service by
the competitor, and the Company will have no liability to the Village for
the franchise fee until such time as its competitor is subject to a franchise
fee or "in lieu of' fee or tax described in Section 6.
In the event the Village itself, or though any entity
under its control, offers basic local exchange services in competition
with the Company, the Village shall not impose any conditions upon the
Company to which the Village itself is not subject. Upon. the Village's
offer of basic local exchange services, any terms of this franchise to which
the Village itself is not subject will become null and void.
Section 11. Term of Franchise. The franchise
and rights herein granted shall continue in force and effect for a term
of five (5) years after the effective date of this franchise, Upon the expiration
of this term of franchise, the parties will continue to abide by its terms
that are legal while they negotiate a subsequent franchise.
Section 12. Franchise Authority. This
franchise is subject to the superior power of any governmental authority,
whether state or federal, having jurisdiction of the premises or exercising
regulatory jurisdiction over the Company.
Section 13. Effective Date. This Ordinance
shall become effective thirty (30) days after its enactment; provided that
the Company, within those thirty (30) days, shall have filed with the Village
Clerk of the Village an unconditional acceptance thereof Within ten (10)
days after the filing of the acceptance, the Village Clerk shall acknowledge
in writing the receipt of the Company's acceptance.
Section 14. Severability Clause. If
any section, subsection, sentence, clause, word or phrase of this ordinance
is for any reason held to be unconstitutional, illegal or otherwise invalid
by any court of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of the ordinance. The Village Trustees,
the Governing Body of the Village, hereby declares that it would have passed
this ordinance and each section, subsection, sentence, clause, word or phrase
thereof regardless of any one or more sections, subsections, sentences,
clauses, words or phrases being declared unconstitutional or otherwise invalid.
All ordinances and agreements or parts thereof in conflict with this ordinance
are hereby repealed.
PASSED, ADOPTED AND APPROVED THIS _____ day of
______________, 2002, at a regular meeting of the Village Trustees of
the Village of Capitan, State of New Mexico.
________________________________________________
Honorable
Mayor, Village of Capitan
ATTEST:
_________________________________________
Village Clerk
I __________________________
Village Clerk for the Village of Capitan, New Mexico, an incorporated Village,
hereby certify that the attached franchise ordinance is a true and correct
copy of the original document maintained in my office and of which I am
the custodian.
_____________________________________
Village Clerk
(SEAL)
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