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
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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
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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
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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.
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(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
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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
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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.
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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.
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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.
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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
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homas A. Stocks,
Mayor of Moab City
, A.D.,