008 of 1993 - Granting to Electric Lightwave, Inc.0 93-1
0 93-3
SALT LAKE CITY ORDINANCE
No. 8 of 1993
(Granting to Electric Lightwave, Inc.
and its successors telecommunication franchise)
WHEREAS, Electric Lightwave, Inc. a Delaware 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, consisting of telecommunication lines and
cables, together with all necessary appurtenances; 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
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:
SECTION 1. Purpose. The purpose of this franchise
ordinance is to grant to Electric Lightwave, Inc. (herein
sometimes called "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 as
Exhibit "A" that is by this reference incorporated herein, as if
fully set forth herein.
SECTION 2. Short Title. The ordinance shall constitute the
Electric Lightwave Franchise Ordinance.
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 to construct, maintain and operate in,
under, along, over and across the present and future streets,
alleys, and rights -of -way in Salt Lake City, Utah (herein
sometimes called the "City"), telecommunication lines and cables,
together with all the necessary or desirable appurtenances
(including, but not limited to, underground conduits and
structures, poles, towers, wires and cables, for its own use) 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 does not grant to the Company the right,
privilege or authority to engage in community antenna (or cable)
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television business, although nothing herein contained shall
preclude the Company (1) from permitting those lawfully engaged
in such business to utilize 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 afore -described
franchise is for a period from and after the effective date of
this Ordinance and its acceptance by the Company, until January
1, 2008.
The Company shall pay all costs of publishing this
Ordinance.
SECTION 5. Acceptance by Company. Within thirty days after
the effective date of this Ordinance, the Company shall file an
unqualified acceptance of this Ordinance, in a form acceptable to
the City Attorney thereof in writing, 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.
6.1 Fee. The Company agrees to and will pay a fee equal to
six percentum (6%) of its Gross Revenue; provided, however that
any sums 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 Salt Lake City Code, or successor provisions,
shall be credited against the fee due hereunder. The fee or tax
(after taking into account all credits provided for herein and in
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the Franchise Agreement) shall be referred to herein as
"Franchise Fee." In the event the statutory limit imposed by
Section 11-26-1, Utah Code, or any successor provision, is
increased above six percentum (6%), the Company shall, upon
request of the City, enter into an amendment to 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 obligated to
pay a higher percentage of Gross Revenues derived from the sale
of telecommunication services than is paid by other fixed public
utilities within the City.
6.2 Definition: "Gross Revenue". 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
Salt Lake City. For purposes hereof, the term "telecommunication
services" shall not include any service which is subject to a
fee, tax or assessment that is regulated by federal statutory or
regulatory law.
SECTION 7. Rights Reserved to the City. Without limitation
upon the 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 this franchise within the City to others, under any
conditions acceptable to the City; or (c) Exercise any
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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
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 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 Council may after hearing determine that
such failure is of a material nature; and thereupon, after
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written notice given Company of such determination, 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 the date it receives
notice to remedy the conditions. After the expiration of
such six (6) months period and failure to correct such
conditions, the City may declare this 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 or the Company's customers, that is
fraudulent or in violation of a felony criminal statute of
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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.
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 ordinance adoption. The Company shall have
an opportunity at 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 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, except for Section 6 hereof and Article II of the
Franchise Agreement.
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10.2 Section 6 hereof and Article II of the Franchise
Agreement are essential to the adoption of this Ordinance and
should they be challenged by the Company, or determined to be
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; (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 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 the Franchise Ordinance or Agreement is
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terminated pursuant to paragraph 10.2 hereof or paragraph 21.2 of
the Franchise Agreement, the City grants to the Company a lease
according to the same terms and conditions as set 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 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.
SECTION 11. This ordinance shall take effect immediately
upon publication.
Passed by the City Council of Salt Lake City, Utah, this
C�°1
10 day of 64ArlaaM , 19 93 .
r
ATTEST:
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ACTW&
Transmitted to the Mayor on
gebru 16, 1993
Mayor's Action: _ Approved
ATTEST:
SWA:
2./1.0793
Bill No. 8 of 1993
Published February 20, 1993
N:\ATTY\ORDINA93\ELECLIGH.SWA
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Vetoed