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HomeMy Public PortalAboutORD-CC-1990-05ORDINANCE # 90-05 AN ORDINANCE GRANTING A NONEXCLUSIVE FRANCHISE TO WENTRONICS, INC., A NEW MEXICO CORPORATION, ITS SUCCESSOR AND ASSIGNS, TO BUILD, CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF MOAB AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTING OF THIS FRANCHISE. BE IT ORDAINED BY THE PEOPLE OF THE CITY OF MOAB: SECTION 1 This Ordinance is granted after a full, open, and public hearing upon prior notice and opportunity of all interested parties to be heard and upon careful consideration of Wentronics, Inc. dba Town TV's qualifications, including its legal, character, financial and technical qualifications. SECTION 2 For the purpose of this Ordinance, the following terms, phrases and words shall have the meaning given herein. When not inconsistent with context, words used in the present tense include the future, words in the plural include the singular, and vice versa. The word "shall" is always mandatory: (A) "City" is the City of Moab, a municipal corporation under the laws of the State of Utah. (B) "Grantee" is Wentronics, Inc., a corporation organized and existing under the laws of the State of New Mexico, and it is the grantee of rights under this franchise. (C) "Council" is the City Council of the City of Moab, Utah or its designated representative. (D) "Federal Communications Commission" or "FCC" is the present federal agency of that name as constituted by the Communications Act of 1934, or any successor agency created by 1 the United States Congress. (E) "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. (F) "Old Gross Subscriber revenues," shall include any and all compensation or receipts within the corporate limits of the City of Moab as defined in prior Moab City Ordinance #3-75 from recurring monthly service charges in connection with basic subscriber services including the carriage of broadcast signals and Federal Communication Commission mandated non -broadcast services, but shall not include any refunds, credits or uncollectible account adjustments made to subscribers or any taxes imposed on the services furnished by Grantee. Nor shall it include revenue from "auxiliary" services which include, but are not limited to, advertising, leased channels and pay-cable. "Old Gross Subscriber revenues" shall mean only the above described revenues from "Basic Cable Only" (Channels 2 through 13). (G) "Augmented Gross Subscriber revenues" shall include any and all subscriber revenue derived from subscribers within the corporate limits of the City of Moab, Utah as now defined or hereafter defined from recurring monthly service charges in connection with regular subscriber services, but shall not include any refunds, credits or uncollectible account adjustments made to subscribers or any taxes imposed on the services furnished by Grantee. Nor shall it include revenue received from local or national advertising, non recurring installation fees, shopping channels and leased channels. (H) "Regular subscriber services" shall include the carriage of broadcast signals and FCC mandated non -broadcast services and shall include all channel delivery including channels above and in addition to the "Basic Channels (2 through 13) and specifically including all pay channels. SECTION 3 There is hereby granted by the City to the Grantee the right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over or under the streets, alleys, easements, public ways and public places now laid out or dedicated and all extensions thereof and additions thereto in the City, all poles, wires, cables, underground conduits, manholes 2 and other conductors and fixtures necessary for the maintenance and operation in the City of a cable television system for the transmitting of television signals and other lawful services or signals either separately or upon or in conjunction with any public utility maintaining the same in the City with all the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this franchise and grant shall and does hereby include the right in, over, under and upon the streets, sidewalks, alleys, easements and public grounds and places in the City to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to provide cable television signals and other lawful services and the right to make connections to subscribers and the right to repair, replace, enlarge, and extend said lines, equipment and connections. The right herein granted for the purpose herein set forth shall not be exclusive, and the City reserves the right to grant a similar use of said streets, alleys, easements, public ways and places to any person at any time during the period of this franchise. SECTION 4 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 and to such reasonable regulations as the City shall hereafter by ordinance provide. The Grantee shall save the City harmless from all loss sustained by the City on account of any suit, judgment, execution, claim or demand whatsoever resulting from negligence on the part of the Grantee in the construction, operation or maintenance of its television system in the City, and for this purpose the Grantee shall carry property damage and public liability insurance in some responsible insurance company or companies qualified to do business in the State of Utah. The amounts of such insurance to be carried are $500,000.00 per occurrence, combined single limit bodily injury and property damage liability. The City shall notify the Grantee 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 as aforesaid on the part of the Grantee. SECTION 5 The Grantee shall maintain a business office or a toll -free telephone listing in the City for the purpose of receiving 3 inquiries and complaints from its customers. The business hours of the office shall be from 8:00 a.m. to 5:00 p.m. with telephone answering service available 24 hours per day 7 days per week. The Grantee shall investigate all complaints within three (3) working days of their receipt and shall in good faith attempt to resolve them swiftly and equitably. SECTION 6 (A) All structures, lines and equipment erected by the Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, easements and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners, and the Grantee shall comply with all reasonable, proper and lawful ordinances of the City now and hereafter in force. Existing poles, posts and other such structures of the electric power system of the City or of any telephone company or other public utility shall be made available to the Grantee for leasing or licensing at reasonable terms and shall be used to the extent practicable in order to minimize interference with travel. (B) In case of any disturbances of pavement, sidewalk, driveway or other surfaces, the Grantee shall at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway or surface so disturbed in as good condition as before said work was commenced. (C) In the event that at any time during the period of this franchise the City shall lawfully elect to alter or change any street, alley, easement or other public way requiring the relocation of the facilities of the Grantee, then in such event the Grantee, upon reasonable notice by the City, shall remove, relay and relocate the same at its own expense, provided that where federal funds are available for such relocation, pursuant to law, Grantee shall not be required to pay the cost. (D) The Grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its lines to permit the moving of the buildings. The expense of such temporary removal shall be paid by the person requesting the same, and the Grantee shall have the authority to require such payment in advance. 4 (E) All poles, lines, structures and other facilities of the Grantee in, on, over and under the streets, sidewalks, alleys, easements and public grounds or places of the City shall be kept by the Grantee at all times in a safe and substantial condition. (F) The Grantee shall have the authority to trim trees upon and overhanging all streets, alleys, easements, sidewalks and public places of the City so as to prevent the branches of such trees from coming into contact with the facilities of Grantee. (G) Should any construction be necessary for Grantee to provide the cable television service contemplated under this franchise, a significant portion of such reconstruction (at least 20Z ) shall be accomplished within one (1) year after the effective date of this Ordinance, or, if FCC certification is required prior to implementation of the cable television service contemplated under this franchise, within one (1) year of the effective date of the grant by the FCC of the necessary certification. Thereafter, Grantee shall equitably and reasonably proceed to complete the necessary construction at a rate of not less than 20Z per year of the total construction contemplated. SECTION 7 The charges made for regular subscriber service shall be fair and reasonable and provide a fair return to the Grantee. The rates for installation of equipment and regular subscriber services shall be as set forth below: (A) Residential Subscribers: Monthly service rate per month $12.55 Additional outlet 1.75 Install - aerial 40.00 Reconnect 30.00 Transfer 30.00 Reconnect (senior citizen) 20.00 Transfer (senior citizen) 20.00 Install - aerial (senior citizen) 25.00 Install - underground 45.00 5 Install - underground (senior citizen) (B) Commercial Subscribers No. Units 1-10 11-20 21-30 31-40 41-50 51-60 61-70 71-80 81-90 91-100 30.00 Per Unit $4.15 4.10 4.05 4.00 3.90 3.80 3.70 3.60 3.50 3.40 (C) No increase in rates charged for installation of equipment and regular subscriber services as specified in the preceding paragraphs shall be made effective except as authorized by the City Council within ninety (90) days after notice of such increase by Grantee and after a full, open and public proceeding upon prior notice and opportunity of all interested parties to be heard; except that in the event that the City Council fails to approve or disapprove the rate increase within the 90-dayperiod, such increase shall be deemed approved and shall be effective at the end of the 90-day notice period. (D) Rates for services other than installation of equipment and regular subscriber services shall be established by the Grantee pursuant to the rules of the Federal Communications Commission. SECTION 8 This franchise is governed by and subject to all applicable rules, technical standards and regulations of the Federal Communications Commission, specifically including Part 76 and all subsequent amendments or additions, to said standards, regulations and laws, and by the laws of the State of Utah. Proof of performance tests shall be on file at the_ office of Town Television, $9 North Main Street, Moab, Utah and subject to Council inspection during normalbusiness hours. Should there be any modifications of the provisions of Section 76.31 of the Rules 6 and Regulations of the Federal Communications Commission which must be incorporated into this franchise, the City and the Grantee agree that such incorporation shall be accomplished within one (1) year after the effective date of the FCC's adoption of the modification, or upon renewal of this franchise, whichever occurs first. However, the right is hereby reserved to the City to adopt, in addition to the provisions herein contained and existing, applicable ordinances, such additional ordinances as it shall find necessary in the exercise of its police power, provided that such regulations shall be reasonable and not in conflict with the rights herein granted, the laws of the State of Utah, the laws of the United States of America, or the rules of the Federal Communications Commission. SECTION 9 This franchise shall take effect and be in full force from and after the final passage hereof, subject to acceptance by the Grantee as herein provided, and the same shall continue in full force and effect for a term of fifteen (15) years beginning with the date of such acceptance. Provided, however, that should FCC certification be necessary prior to implementation of the cable television service contemplated under this franchise, then the term shall begin upon the effective date of the grant by the FCC of the necessary certification. Grantee shall have the option to request renewal of this franchise for an additional period not to exceed fifteen (15) years. Should Grantee desire to exercise this option, it shall so notify the City, in writing, not less than six (6) months prior to expiration of this franchise. Upon exercise of this option by Grantee, the City shall conduct a full, open, and public renewal proceeding upon prior notice and opportunity of all interested parties to be heard. The City may consider the performance of Grantee under this franchise and any other factors deemed relevant in determining whether to renew this franchise. If this franchise is renewed by the City, all of the terms and provisions contained herein shall be controlling during the renewal period except to the extent that said terms and provisions are modified by the City or unless this franchise is superseded by a new franchise. 7 SECTION 10 If the Grantee shall fail to comply with all applicable rules, technical standards and regulations of the Federal Communications Commission required by Section 8 or violate any of the terms, conditions or provisions of this franchise, or if the Grantee shall fail to comply with any reasonable provision of any ordinance of the City regulating the use by the Grantee of the streets, alleys, easements or public ways of the City and should the Grantee continue to violate the same for a period of thirty (30) days after the Grantee shall have been notified in writing by the City to desist from such violation so specified, then the City shall have the right to cancel and terminate this franchise as fully and effectively as if it had never been granted an annul all the rights and privileges granted by this franchise, provided, however, that nothing herein contained shall in any way restrict or limit Grantee from obtaining a judicial review of the City's order. SECTION 11 The Grantee may surrender this franchise at any time upon filing with the City Clerk of the City a written notice of its intention to do so at least six (6) months before the surrender date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations, duties and liabilities of the Grantee shall terminate. SECTION 12 If this franchise is cancelled by the Council by reason of the Company's default, that part of the system located in the streets shall, at the election of the City, become the property of the City at a cost not to exceed its then fair market value (i.e. cost less accumulated depreciation) according to generally accepted appraisal principles, with a reduction for any damages incurred by the City in connection with such cancellation. Such fair market value if not agreed upon, shall be determined by arbitration but shall not include any valuation based upon this franchise. Damages incurred by the City shall include, without limitation, any payment made by the City pursuant to a resolution of the Board authorizing or directing another person to operate the system for a temporary period until a franchise therefore is granted. 8 SECTION 13 If this franchise terminates by expiration of its term, the purchase price to the City for the system shall be its then fair value as determined by arbitration beginning within six (6) months prior to expiration. SECTION 14 All of the rights and privileges and all of the obligations, duties, and liabilities created by this franchise shall pass to and be binding upon the successors of the City and the successors and assigns of the Grantee, and the same shall not be assigned or transferred without the written approval of the City Council, which approval shall not be unreasonably withheld; provided, however, that this section shall not prevent the assignment of the franchise by the Grantee as security for debt without such approval. SECTION 15 In consideration of the terms of this franchise, the Grantee agrees to pay to the City at the Company's expense for the period from April 1, 1990 through December 31, 1990, a sum of money equal to one and one-half percent (1 1/2%) of the Grantee's "Old Gross Subscriber Revenue" per year. Said payment shall be due on or before J-anuary 31, 1991. Commencing January 1, 1991 through March 31, 1995, Grantee agrees to pay to the City at the Company's expense a sum of money equal to two percent (2%) of the "Augmented Gross Subscriber Revenue" per year. Such amount shall be paid one half (1/2) at the end of each semi-annual period. The semi-annual amount shall be due the last day of June and the last day of December of each year and each semi-annual payment shall be paid within thirty (30) days thereafter. Commencing April 1, 1995 through March 31, 2005, Grantee agrees to pay to the City at the Company's expense a sum of money equal to three percent (3%) of the "Augmented Gross Subscriber Revenue" per year. Such amount shall be paid one half (1/2) at the end of each semi-annual period. The semi-annual amount shall be due the last day of June and the last day of December of each year and each semi-annual payment shall be paid within thirty (30) days thereafter. 9 SECTION 16 As a condition of this franchise, the Grantee agrees that it will not engage in the business of sales or repair of television receivers owned by its subscribers, nor will it be responsible for the operating condition of said receivers. SECTION 17 This Ordinance when accepted by the Grantee shall be and become a valid and binding contract between the City and the Grantee, but this Ordinance shall be void unless the Grantee shall, within ninety (90) days after the final passage of this Ordinance, file with the City Clerk of the City a written acceptance of this Ordinance and the franchise herein granted, agreeing that it will comply with all the provisions and conditions hereof and that it will refrain from doing all things prohibited by this Ordinance. SECTION 18 If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any federal or state court or administrative agency of competent jurisdiction, specifically including the Federal Communications Commission, such portion shall be deemed a separate, distinct and independent provision, and such holdings shall not affect the validity of the remaining portions hereof. DONE IN OPEN COUNCIL this 29th day of March 1990. ATTEST: andra E. Beauregard Acting Recorder of Moab City 10 homas A. Stocks, Mayor of Moab City , A.D.,