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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. - 13 - 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 - 14 - Mayor t::