HomeMy Public PortalAboutORD 59_Telecable_1981ORDINANCE #
AN ORDINANCE GRANTING TO UPPER VALLEY TELECABLE COMPANY,
ITS SUCCESSORS AND ASSIGNS, THE RIGHT AND PRIVILEGE TO
CONTRUCT, ERECT, OPERATE AND MAINTAIN OVER AND UNDER THE
STREET, ALLEYS AND PUBLIC WAYS OF THE CITY, WIRES, CABLES
AND UNDERGROUND CONDUITS, AND TO CONDUCT AND OPERATE A
COMMUNITY ANTENNA TELEVISION SYSTEM IN THE CITY, AND
PROVIDING THE TERMS, CONDITIONS AND REGULATIONS THERETO.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF IONA,
IDAHO:
Section 1. Definitions.
For the purpose of this ordinance, the following terms,
phrases and words shall have the following meaning given herein
whenever it is used in this franchise:
(a) "City" is the City of Iona, Idaho.
(b) "Community antenna television system" hereinafter
referred to as "CATV System" or "System", means a system of
coaxial cables or other electrical conductors and equipment
used or to be used primarily to receive television or radio
signals directly.or indirectly and transmit them to subscribers
for a fee.
(c) "Grantee" is Upper Valley Telecable Company, an Idaho
corporation, or its successors or assigns, in accordance with
the provisions of this franchise.
Section 2. Grant of Authority.
There is hereby granted to Grantee, and its heirs,
successors and assigns, for a period of thirty (30) years from
and after the effective date of this ordinance, the
nonexclusive right and privilege to construct, erect, operate
repair, replace, reconstruct, and maintain in, upon, along,
across, above, under and over the streets, alleys, public ways
and public places now or hereafter laid out or dedicated, and
Rohl UPPER VALLEY TELECABLJ
all extensions thereof and additions thereto, in Iona, Idaho,
poles, wires, coaxial and other cables, underground conduits,
vaults, ducts, amplifiers, appliances, attachments, and such
other conductors and fixtures as are necessary or proper for
the maintenance and operation in the City of a CATV system; to
provide, use and operate similar properties rented or leased
from other persons, firms or corporations for such purposes,
including, but not limited to, any public utility or other
grantee franchised or permitted to do business in the City; and
to engage in the business of the distribution and sale of
electrical or radiant energy for television and radio reception
within the City limits of the City of Iona as they now are and
as they may become. The right herein granted shall not be
exclusive.
Section 3. Commencement and Completion ofFranchise
Construction.
A11 work and construction required to erect and construct
a CATV system in accordance with the terms and conditions of
this ordinance shall be diligently executed and pursued in
order that a CATV system at and within the City shall have been
constructed, installed and erected within a period not to
exceed one (1) year from the date of the final passage of this
ordinance, unless such commencement or completion time shall be
extended by the Council of the City by resolution for good
cause shown, and if no so completed within such time this
franchise shall be forfeited. The Grantee shall also be
required to complete the installation, construction and
erection of a CATV system in areas subsequently annexed to the
City in the manner and time agreed upon by and between the
Grantee and the City. The Grantee prior to any act of
construction or work, shall obtain a•nd file with the City Clerk
all licenses, permits and other authorities, federal, city and
state, as may be applicable for . the operation of a community or
a CATV system and a microwave facility, pole line agreements
and all other legal requirements for the installation, erection
and construction of said system.
Section 4. Construction and Maintenance Requirements.
Grantee shall construct and maintain its CATV System at
all times in compliance with all rules, regulations, codes and
ordinances in any way applicable to its construction and
maintenance program. Grantee shall construct, maintain and
operate its CATV system so as to cause the least possible
inconvenience to the general public. All excavation shall be
properly guarded and protected and shall be replaced and the
surface restored in good condition promptly after the
completion of the work. Grantee shall comply with all
excavation ordinance requirements of the City. The Grantee
shall at all times employ ordinary care and shall install and
maintain and use commonly accepted methods and devices for
preventing failures and accidents which are likely to cause
damage, injuries or nuisances to the public.
No poles or other fixtures shall be placed where the same
will interfere with any gas lamp, telephone poles, electric
light poles, water hydrants, water mains or sewer mains, gas
lines, or with the usual travel on any public ways; provided,
however, that the City shall furnish Grantee with intormation
showing the location of underground utilities; and provided
further, that underground conduits, cables and other facilities
shall be located and constructed in such a manner as to not
interfere with the facilities of the City or any public utility
operating by virtue of any prior ordinance adopted by the City
or otherwise. The City shall be furnished with complete
drawings of any construction pursuant to the provisions of this
ordinance. The Grantee, in the construction and operation of
the System, shall perform his work in such a manner as to give
the least inconvenience to the inhabitants of the City and the
public generally, and shall repair at Grantee's expense all
pavement, sidewalks and curbing disturbed or damaged by Grantee
in its construction or maintenance operations.
The City shall have the right to inspect all construction
or installation work performed subject to the provisions of
.this ordinance as it shall find necessary to insure compliance
with the terms of this franchise.
Any franchise granted under this ordinance shall not
relieve the Grantee of the obligation of placing underground
those facilities placed within the confines of newly developed
subdivisions or in those areas presently served by underground
facilities. Grantee shall abide by subdivision requirements as
well as City requirements in regard to the installation of such
service facilities.
Section 5. Extent of System Coverage.
The Grantee shall furnish to the City and its inhabitants
a CATV system comparable to that rendered by other modern and .
efficient CATV systems operated within the State of Idaho, and
that will not interfere with or adversely affect existing
television or radio reception through individually owned
receiving antennas. The Grantee shall initially provide
service without discrimination toall who request the same
within those areas of the City covered by the system; provided,
however, that nothing herein contained shall prohibit or
restrict the Grantee from temporarily reducing or waiving
installation, relocation or moving charges or rates for
business promotion purposes. The Grantee agrees to initially
construct and erect a CATV system in all areas of the City
where it is economically feasible. The Grantee shall be
required to extend the same grade of nondiscriminatory service
offering to all other areas within the future corporate limits
of the City where economically feasible. The question of
economic feasibility may be determined by the Council upon
proper hearing; provided, however, that extension of service
into a given area shall be deemed economically feasible if
.Grantee's cost in extending coverage into such area does not
exceed the anticipated revenue to be received from said area
over a period of three years. In the event a period in excess
of three years would be required to recover said costs, the
extension coverage shall be deemed economically unfeasible.
Nothing in this paragraph contained shall prohibit the Grantee
from entering into agreements with subscribers in a designated
area for an increased installation fee or subscription rate in
an amount sufficient to cause the extension of coverage to be
economically feasible under the guide lines heretofore stated.
Section 6. Liability and Insurance.
It is expressly understood and agreed by and between the
Grantee and the City, that the Grantee shall hold the City
harmless from all loss sustained by the City on account of
suit, judgment or execution, claim or demand whatsoever
resulting from negligence on the part of the Grantee in the
construction, operation or maintenance of its system in the
City or which the City might legally be required to pay as the
result ofany action on the part of the Grantee arising out of
the installation, operation or maintenance of the CATV System
authorized herein, whether or not any act or omission
complained of is authorized, allowed or prohibited. The City
shall notify the Grantee's representatives in the City within
thirty (30) days after the presentation of any claim or demand,
either by suit or otherwise made against the City on account of
any negligence or conduct as aforesaid on the part of the
Grantee. Said hold harmless agreement shall extend to and
include all out-of-pocket expenses and attorney's fees and
costs incurred by the City in defending or resisting any such
action.
The Grantee shall maintain, and by its acceptance of this
franchise, specifically agrees that it will maintain throughout
the term of this franchise, liability insurance insuring both
the City and the Grantee with regard to all damages mentioned
in the paragraph above in the minimum amount o f :
(a) $200,000 for property damage in aggregate.
(b) $750,000 for personal injury in aggregate.
A11 such policies shall be kept in full force at all times
during the term of this franchise; provided, however, that no
insurer shall cancel such policies without giving notice
thereof to the Grantee and the City, through the Mayor of said
City, in accordance with the laws of the State of Idaho and the
terms of said policy, and provided further that the Grantee may
at any time substitute the policies of another qualified
insurance company of equal coverage for the policy then on file
with. said City.
The insurance policy obtained by the Grantee in compliance
with this section must be approved by the City Council and a
facsimile of such insurance policies and bond, or other
adequate proof, along with written evidence of payment of
required premiums, shall be filed and maintained with the City
Clerk during the term of this franchise.
Section 7. Maintenance Requirements.
(a) The Grantee shall have the authority to trim trees
upon and overhanging streets, alleys, sidewalks and public
places of the City so as to prevent the branches of such trees
from coming into contact with the wires and cables of the
Grantee; provided, however, upon failure of Grantee to trim the
trees such trimming may be done by the City, or under its
supervision and direction, at the expense of the Grantee.
(b) The Grantee shall, upon request of any person holding
a building moving permit issued by the City, temporarily raise
or lower its wires to permit the moving of the buildings
covered by such a permit. The expense of such temporary
removal, raising or lowering of wires, shall be paid by the
person requesting the same, and the Grantee shall have the
authority to require such payment in advance. The Grantee
shall be given not less than 48 hours advance notice to arrange
for such temporary wire changes. .
(c) In the event that any time during the period of the
operation of the system the City shall lawfully elect to alter
or change the grade of any street, alley or other public way,
the Grantee, upon reasonable notice by the City, shall remove,
re -lay and relocate its poles, wires, cables, underground
conduits, manholes and other fixtures at its own expense.
(d) The City shall have the right to require the Grantee,
at Grantee's expense, to protect, support, temporarily
disconnect, relocate or remove from the public way any property
of the Grantee by reason of traffic conditions, public safety,
street or freeway construction or vacation, installation: of
sewers, drains, water pipes, power or communication lines,
tracks or other types of structures, or improvements by
governmental agencies or any other structures of public
improvement.
(e) The City shall have the right to require removal at
Grantee's expense of any part of the Grantee's system that has
been placed in the public's way for any of the following causes:
i. That such property has been installed without
complying with the conditions of the franchise
or this ordinance;
ii. That the franchise has been terminated,
cancelled or has expired.
(f) In the event of removal of any plant structure,
works, pipes, mains, conduits, cables, poles or wires for any
reason, the City requires that the Grantee, at its own expense,
shall refill any excavation that may be made and shall leave
the public way in as good condition as that prevailing to said
removal of equipment or appurtenances. The City may permit
certain properties of the Grantee otherwise required to be
removed to be abandoned in place. In such case, abandonment
shall be accomplished in such manner as the Council may
prescribe and the Grantee shall submit to the City an
instrument, satisfactory to the City Attorney, transferring the
ownership of such property to the City.
(g) In the event of any emergency or disaster, the
Grantee shall, upon the request of the City Council, make
available its facilities to the City for emergency use during
any emergency or disaster.
(h) The Grantee shall render efficient service, make
repairs promptly, interrupt service only for good cause and for
the shortest possible time. Such interruptions, insofar:as
possible, shall be preceded by notice and shall occur during
periods of minimum use of the system.
(i) Grantee shall maintain an office in Idaho Falls,
Idaho, which shall be open during all usual business hours,
have a listed telephone, and be so operated that complaints and
requests for repairs or adjustments be received at any
reasonable time.
(j) Upon the failure of the Grantee to complete any work
required by this section above, or any other work required by
this franchise ordinance, or as the result of the abandonment
.or termination of the franchise, or by any law or city
ordinances within the time established and to the satisfaction
of the City, the City may cause such work to be done and the
Grantee shall pay to the City the reasonable cost thereof
within thirty (30) days after receipt of an itemized list of
the cost.
Section 8. Records and Reports.
The City shall have access at all reasonable
of the Grantee's plans, engineering, statistical,
hours to all
customer and
service records relating to the property in the operation of
the Grantee, and to all other
the terms of this franchise.
records required to be kept under
An annual summary report showing
gross revenues received by the Grantee from its operations in
the City during the preceding fiscal yeat,
the City shall request with respect to
expenses related to the Grantee's services
information as
properties and
and such other
within the City shall be submitted to the City Clerk on or
before the 3lst day of March following the calendar year for
which such report is covered. At the end of December of each
year in which construction takes place a map shall be filled
with the City showing the areas of the City presently being
served by the Grantee and such other information as shall be
required by the City.
Section 9. Compliance with Applicable Laws and Ordinances.
The Grantee shall at all times during the life of this
franchise be subject to all lawful exercise of the police power
of the City. The Grantee shall, at all times during the term
of this franchise, be subject to all laws, ordinances and
regulations duly adopted by any federal, state or municipal
agency having lawful jurisdiction over the business conducted
,by the Grantee. Nothing in this ordinance shall be construed,
however, as granting or giving to the City any power to
regulate the business or affairs of this Grantee, except as
expressly otherwise stated herein, as a common carrier, public
utility or otherwise; it being the intention of the Mayor and
City Council of the City and of the Grantee, that the City does
not purport to exercise any regulatory functions upon the
business or activities of the Grantee other than such powers
and authorities as have heretofore been conferred upon the City
by law.
Section 10. Compensation to the City..
As a consideration for this franchise, the Grantee agrees
to pay the following sums to the treasurer of the City:
A4Lm__equal to three percent (3%) of the gross
service receipt.s7received by Upper Valley Telecable
Company, Inc., from customers situate in the City of
Iona for the calendar year 1981 and all subsequent
years, or $100.00 whichever amount is the greater.
Checks for all such payments shall be made payable to the
City Treasurer, and shall be submitted to the City Treasurer on
or before April 1 of each year for the previous calendar year
or portion thereof. Each payment shall be accompanied by a
statement,, in duplicate, verified by the Grantee or by a
general officer or other duly authorized representative of 'the
Grantee, showing in such formand detail as the City Auditor
may require from time to time the facts material to a
determination of the amounts due. The auditor o.0 the City
shall determine the accuracy of the payment computation and if
he finds any errors shall report the same to the Grantee for
correction. The records of the Grantee reflecting the
information relevant in determining revenues described in this
paragraph shall be available for inspection by the City Council
.or its duly authorized representative at all reasonable hours
and upon reasonable notice. The payments described in this
section shall be in lieu of any and all other franchise,
occupation, privilege, license, wire, instrument, excise,
revenue or any other tax, except ad valorem property taxes and
special improvement assessments lawfully levied by the county
or other subdivision of the State of Idaho, pursuant to law,
and except for any pole rentals, which pole rentals shall be
determined and covered by a separate pole -use agreement.
Section 11. Rates.
The rates and charges .for television g radio and other
electrical signals distributed by the Grantee shall be fair and
reasonable. Grantee shall file a schedule of its rates with
the City Clerk of the City and shall make no adjustments or
changes in rates until sixty (60) days after the filing of a
new rate schedule with the City Clerk at which time such rates
shall become effective. All customers service contracts and
subscriptions for service shall be in writing, which contract
shall clearly express the term of the contract, the rates to be
charged, the installation fees and all other terms and
provisions relevant to such contract. Sample copies of all
contracts in use by Grantee shall be promptly filed with the
City Clerk of the City before being used within the City limits.
Section 12. Forfeiture of Franchise.
This franchise may he terminated and cancelled at any time
for failure of the Grantee to comply with the terms and
conditions hereof. Such termination and cancellation shall be
by ordinance duly adopted -after sixty (60) days notice to the
Grantee by certified mail of such intent to terminate and
cancel and after public hearing at which the Grantee has been
.given an opportunity to be heard before the City Council. In
the event of cancellation or termination, the Grantee shall, at
its own expense, forthwith remove all of its construction and
equipment from, in, upon, along, across, above, over and under
the streets, alleys, highways, public ways and public places at
and within the City, and restore the said streets, alleys,
highways, public ways and public places in a good condition
acceptable to the City, reasonable wear and tear excepted.
Section 13. New Developments.
It shall be the policy of the City liberally to amend this
franchise, upon application of the Grantee, when necessary to
enable the Grantee to take advantage of any developments in the
field of transmission of television and radio signals which
afford it an opportunity more effectively, efficiently or
economically to serve its customers.
Section 14. Miscellaneous.
Any franchise granted hereunder shall be a privilege to be
held in trust by the original Grantee. Said franchise cannot
in any event be sold, transferred, leased, assigned or disposed
of in whole or in part, either by force or voluntary sale,
merger, consolidation or any other means without the prior
consent of the City expressed by Council resolution, and then
only such conditions as the Council may establish; provided,
however, that the Council shall not unreasonably withhold its
consent or impose any unreasonable conditions.
Time shall be of.ithe essence of any franchise gra•nted
hereunder. The Grantee shall not b•e relieved of its
obligations to comply promptly with the provisions of this
ordinance, or by any failure of the City to enforce prompt
compliance.
Any privilege in the public way granted by a franchise
issued under this ordinance shall be subordinate to any prior
lawful occupancy of said public way.
No privilege or exemption except those specifically
conferred by any franchise granted under this ordinance shall
be given or implied.
The Grantee agrees not to oppose intervention by the City
in any suit or proceeding to which the Grantee is a party.
The franchise granted hereunder shall permit Grantee to do
whatever other community antenna television systems similarly
situated are permitted to do by the Federal Communications
Commission or other duly authorized federal, state or municipal
authority.
The Grantee shall prohibit its officers, agents and
employees from attempting to direct the subscribers to deal
with any particular firm or person in regard to sale, service,.
rental, or leasing of television receivers, radio receivers or
television or radio receiver parts or accessories.
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Section 15. Severability.
If any section, subsection, sentence, clause or any
portion of this ordinance is found to be invalid and
unconstitutional by any court of competent jurisdiction,such
portion shall be deemed a separate, distinct and independent
provision, on which action shall not affect the validity of the
remaining portions of this ordinance.
Section 16. Inclusion of Application Provision.
The rate schedule and schedule of signals to be furnished
customers furnished by Grantee to City in connection with
Grantee's application for this franchise are and they sall be
integrated in and a part of this franchise ordinance and are
included herein by reference and shall be fully binding upon
the Grantee.
Section 17. Repealer.
A11 ordinances or portions of ordinances in conflict with
the provisions of this ordinance are hereby repealed.
Section 18. Effective Date.
This ordinance shall take effect ane be in force from and
after its passage, approval and publicatipn as provided by law.
PASSED BY THE CITY COUNCIL of Iona Tdaho, this day
of , 1981.
APPROVED BY THE MAYOR of Iona, Idaho, this day of
, 1981.
ATTEST:
City Clerk
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Mayor
t::