065 of 1995 - Granting to Questar InfoComm, Inc., and its successors, a telecommunication franchise0 95-1
C 95-246
SALT LAKE CITY ORDINANCE
No. 65 of 1995
(Granting to Questar InfoComm, Inc.,
and its successors, a telecommunication franchise)
WHEREAS, Questar InfoComm, Inc., a Utah corporation (the
"Company") desires to provide certain telecommunication services
within Salt Lake City, Utah (the "City"), and in connection
therewith to establish a network in, under, along, over and
across present and future streets, alleys and rights -of -way of
the City, such network consisting of fiber-optic, copper or other
telecommunication lines and cables, together with all necessary
and desirable appurtenances (including without limitation
underground and above -ground conduits and structures, poles,
towers, wire and cable); and
WHEREAS, the City, in the exercise of its police power,
ownership or use rights over and in the public rights -of -way, and
pursuant to its other regulatory authority, believes it is in the
best interest of the public to provide to the Company, and its
successors, a non-exclusive franchise to operate its business
within the City; and
WHEREAS, the City and the Company propose to enter into a
Franchise Agreement, the substantially final form of which has
been presented to the City Council at the meeting at which this
Ordinance is being considered for adoption; and
WHEREAS, the City desires to approve the execution and
delivery of such Franchise Agreement and to otherwise take all
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actions necessary to grant the referenced franchise to the
Company; and
WHEREAS, the City believes this Ordinance to be in the best
interest of the citizens of Salt Lake City,
NOW, THEREFORE, be it ordained by the City Council of Salt
Lake City, Utah, as follows:
SECTION 1. Purpose: Approval of Franchise Agreement . The
purpose of this Franchise Ordinance is to grant to the Company,
and its successors and assigns, a non-exclusive right to use the
public streets, alleys and rights -of -way, for its business
purposes, under the constraints and for the compensation
enumerated in the Franchise Agreement attached hereto as Exhibit
A, and by this reference incorporated herein, as if fully set
forth herein (the "Franchise Agreement"). The Franchise
Agreement is hereby approved in substantially the form attached
hereto as Exhibit A, with such changes thereto as shall be
approved by the Mayor, the execution thereof by the Mayor to
constitute conclusive evidence of such approval. The Mayor is
hereby authorized and directed to execute and deliver, and the
Chief Deputy City Recorder is hereby authorized to attest and
countersign, the Franchise Agreement.
SECTION 2. Short Title. This Ordinance shall constitute
the Questar InfoComm, Inc., Franchise Ordinance.
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SECTION 3. Franchise Description. There is hereby granted
to the Company, and its successors and assigns, in accordance
with the terms and conditions of the Franchise Agreement, the
right, privilege, and franchise (collectively, the "Franchise"),
to construct, maintain and operate in, under, along, over and
across the present and future streets, alleys, and rights -of -way
in the City, fiber-optic, copper or other telecommunication lines
and cables, together with all necessary and desirable
appurtenances (including without limitation underground and
above -ground conduits and structures, poles, towers, wire and
cable), for the purpose of supplying telecommunication services
to the City, the inhabitants thereof and persons and corporations
beyond the limits thereof, for telecommunication purposes.
This Franchise Ordinance does not grant to the Company the
right, privilege or authority to engage in community antenna (or
cable) television business, although nothing herein contained
shall preclude the Company (1) from permitting those lawfully
engaged in such business to utilize the Company's facilities
within the City for such purposes, or (2) from providing such
service, if appropriate authority, including a franchise from the
City, is obtained.
SECTION 4. Term. The term of the Franchise is for a
period from and after the effective date of this Ordinance and
its acceptance by the Company, through December 31, 2010.
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SECTION 5. Acceptance by Company. Within thirty (30) days
after the effective date of this Ordinance, the Company shall
file an unqualified acceptance of this Ordinance, in a form
approved by the City Attorney, with the City Recorder of Salt
Lake City; otherwise, this Ordinance and the rights granted
hereunder shall be null and void.
SECTION 6. Consideration and Payment Dates. For each
calendar year during which the Franchise is in effect, the
Company shall pay to the City for the Franchise a franchise fee
(the "Franchise Fee"), equal to the greater of either:
(a) The sum of Five Thousand Dollars ($5,000);
provided, however, that the Franchise Fee payable for calendar
year 1995 shall be prorated on a monthly basis and payable only
for the months or portions thereof during such calendar year for
which the Franchise Agreement is in effect, and provided further
that there shall be credited against the Franchise Fee payable
for calendar year 1995 all amounts paid by the Company pursuant
to the terms of that certain Limited Franchise Agreement, dated
May 9, 1995, between the City and the Company. The initial
payment shall be due and payable concurrent with the execution
and delivery of the Franchise Agreement. Thereafter, the
Franchise Fee shall be due on or before January 1 of each year,
and shall be considered payment in advance for use of the
Franchise for the next succeeding calendar year. On each payment
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date, the Franchise Fee payment shall be increased or decreased
by the same percentage increase or decrease, if any, in the
Consumer Price Index herein specified for the twelve-month period
ending the day preceding the payment date on which such payment
is due. The Consumer Price Index unit for this purpose shall be
the U.S. City Average Geographic Index for the components
including "all urban consumers" based on "all items" as published
for the month of May of each year by the Bureau of Labor
Statistics of the federal government. If publication of said
Consumer Price Index should cease, such annual percentage
increase shall be determined by reference to such similar index
as shall replace it, or as agreed upon by the parties.
OR
(b) An amount equal to six percent (6%) per annum of the
Company's Gross Revenue; provided, however, that any sum paid by
the Company as a gross receipts based Business Occupation Revenue
Tax under the provisions of Section 5.04.170 et seq. of the City
Code, or successor provisions, shall be credited against any fee
due under this Section 6(b). In the event the statutory limit on
gross receipts based taxes or other charges imposed by Section
11-26-1, Utah Code, or any successor provision, is increased
above six percent (6%), the Company shall, at the request of the
City, enter into an amendment to this Franchise Ordinance and the
Franchise Agreement increasing the Franchise Fee to the level
requested by the City, but not to exceed the increased statutory
limit; provided, however, in no event shall the Company be
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obligated to pay a higher percentage of Gross Revenue than is
paid by other fixed public utilities within the City. Any annual
payments made to the City pursuant to Section 6(a) hereof shall
be credited against sums calculated pursuant to this Section
6(b). The term "Gross Revenue" as used herein is any revenue of
the Company derived from the sale of its telecommunication
services to its customers within the City, without regard to the
billing address of the customer, to the extent such services
utilize the above -referenced fiber-optic, copper or other cable,
except that Gross Revenue shall not include revenue derived by
the Company from services provided to its parent, subsidiaries of
its parent, or affiliated companies of the Company.
SECTION 7. Rights Reserved to the City. Without limiting
any rights that the City might otherwise have, the City expressly
reserves the following rights, powers and authorities to: (a)
exercise its governmental powers now or hereafter to the full
extent that such powers may be vested in or granted to the City;
(b) grant additional franchises to the same property covered by
the Franchise within the City to others, under any conditions
acceptable to the City; or (c) exercise any other rights, powers,
or duties required or authorized, under the Constitution of the
State of Utah, the law of Utah, or the City ordinances.
SECTION 8. Extension of City Limits. Upon the annexation
of any territory to the City, the right and Franchise hereby
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granted shall extend to the territory so annexed to the extent
the City has authority. All facilities owned, maintained, or
operated by the Company located within, under, or over streets,
alleys and rights -of -way of the territory so annexed shall
thereafter be subject to all terms hereof.
SECTION 9. Early Termination or Revocation of Franchise.
9.1 The City may terminate or revoke the Franchise and all
rights and privileges herein provided for any of the following
reasons:
(a) The Company fails to make timely payments of the
Franchise Fee as required hereunder and under Article II of
the Franchise Agreement and does not correct such failure
within ten working days after written notice by the City of
such failure;
(b) The Company, by act or omission, materially
violates a duty or obligation herein set forth or set forth
in the Franchise Agreement in any particular within the
Company's control, and with respect to which redress is not
otherwise herein provided. In such event, the City, acting
by or through its City Council, may after hearing determine
that such failure is of a material nature; and thereupon,
after written notice given to the Company of such
determination, the Company shall, within thirty (30) days of
such notice, commence efforts to remedy the conditions
identified in the notice, and will have six (6) months from
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the date it receives notice to remedy the conditions. After
the expiration of such six (6) month period and failure to
correct such conditions, the City may declare the Franchise
forfeited, and thereupon the Company shall have no further
rights or authority hereunder; provided, however, that any
such declaration of forfeiture shall be subject to judicial
review as provided by law, and provided further that in the
event such failure is of such nature that it cannot be
reasonably corrected within the six (6) months time provided
above, the City shall provide additional time for the
reasonable correction of such alleged failure;
(c) The Company becomes insolvent, unable or unwilling
to pay its debts, is adjudged bankrupt, or all or part of
its facilities should be sold under an instrument to secure
a debt and is not redeemed by the Company within thirty (30)
days; or
(d) In furtherance of the Company policy or through
acts or omissions done within the scope and course of
employment, a director or officer of the Company knowingly
engages in conduct or makes a material misrepresentation
with or to the City, that is fraudulent or in violation of a
felony criminal statute of the State of Utah.
9.2 Nothing contained herein shall be deemed to preclude
the Company from pursuing any legal or equitable rights or
remedies it may have to challenge the action of the City.
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No Franchise revocation or termination may be effected until
the City Council shall first adopt an ordinance terminating the
Franchise and setting forth the reasons therefor, following not
less than thirty (30) days prior written notice to the Company of
the proposed date of the ordinance adoption. The Company shall
have an opportunity on said ordinance adoption date to be heard
upon the proposed termination.
SECTION 10. Severability.
10.1. If any section, sentence, paragraph, term or
provision of the Franchise Agreement or this Franchise Ordinance
is for any reason determined to be or rendered illegal, invalid,
or superseded by other lawful authority including any state or
federal, legislative, regulatory or administrative authority
having jurisdiction thereof or determined to be unconstitutional,
illegal or invalid by any court of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent
provision and such determination shall have no effect on the
validity of any other section, sentence, paragraph, term or
provision hereof, all of which will remain in full force and
effect for the term of the Franchise or any renewal or renewals
thereof,
Franchise
10.2
Agreement
except for Section 6 hereof and Article II of the
Agreement.
Section 6 hereof and Article II of the Franchise
are essential to the adoption of this Ordinance and
should they be challenged by the Company, or determined to be
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illegal, invalid, unconstitutional or superseded, in whole or in
part, the entire Franchise shall be voided and terminated,
subject to the following: (a) In the event of a judicial,
regulatory or administrative determination that Section 6 hereof
or Article II of the Franchise Agreement is illegal, invalid,
unconstitutional or superseded, such termination shall be
effective as of the date of a final appealable order, unless
otherwise agreed upon by the City and the Company; or (b) in the
event of any legislative action that renders Section 6 hereof or
Article II of the Franchise Agreement unconstitutional, illegal,
invalid or superseded, such termination shall be effective as of
the effective date of such legislative action.
10.3 Notwithstanding the foregoing, if the City stipulates
in writing to judicial, administrative or regulatory action that
seeks a determination that Section 6 hereof or Article II of the
Franchise Agreement is invalid, illegal, superseded or
unconstitutional, then a determination that Section 6 hereof or
Article II of the Franchise Agreement is invalid, illegal,
unconstitutional or superseded shall have no effect on the
validity or effectiveness of any other section, sentence,
paragraph, term or provision of the Franchise, which shall remain
in full force and effect.
10.4 In the event this Franchise Ordinance or the Franchise
Agreement is terminated pursuant to paragraph 10.2 hereof or
paragraph 19.2 of the Franchise Agreement, the City grants to the
Company a lease according to the same terms and conditions as set
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forth in the Franchise Agreement. Accordingly, the Company shall
pay, as fair market rental value, the same amounts, at the same
times, required for the payment of the Franchise Fee pursuant to
Section 6 hereof and Article II of the Franchise Agreement and
shall be bound by all other terms and conditions contained
herein; provided, however, that in no event will the Company be
obligated to pay a higher percentage of revenues derived from the
sale of telecommunication services within the City than is paid
by other fixed public utilities serving within the City.
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SECTION 11. This ordinance shall take effect immediately
upon publication. The Company shall pay all costs of publishing
this Ordinance.
Passed by the City Council of Salt Lake City, Utah, this
5th day of 5e.ptember , 1995
C IRF.3`SON
ATTEST AND COUNTERSIGN:
--
Transmitted to the Mayor on 5epternber 5, 1996
Mayor's Action:
ATTEST:
J(IP fi �diit
Y RL'CORDER
MAYOR
/'
�.P�t-4:f .iiDe L 1_
l
Bi11 No. 65 of 1995
Published: September 12, 1995
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ACCENOWLFT)CMFNT AND ACCEPTANCE
Questar InfoComm, Inc., a Utah corporation, in satisfaction
of Section 5 of the Franchise Ordinance to which this acceptance
is attached, does hereby acknowledge and accept the terms and
conditions of such Franchise Ordinance.
Dated:
Approved as to form:
Assistant City Attorney
g:\ordina95\questar2. ceb
QUESTAR INFOCOM, INC.,
a Utah corporation
By
Its
O G:i`,IAL_ DOCUMENT
PROFE'?TY Ct SALT LAKE
13 CITY 1:ECO D'i_R'S OFFICE
451 50. STATE RM. 415
SALT LAKE CITY, UTAH 84111