081 of 2005 - Granting to Qwest Broadband Services a cable television franchise •
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SALT LAKE CITY ORDINANCE
No. 81 of 2005
(Granting to Qwest Broadband Services, Inc.,
and its successors, a cable television franchise)
WHEREAS, Qwest Broadband Services, Inc., a Colorado corporation(the "Company")
desires to provide certain cable television services within Salt Lake City, Utah (the "City"), and
in connection therewith to establish a network in, under, along, over, across and through present
and future streets, alleys and rights-of-way of the City; and
WHEREAS, the City, in the exercise of its police power, ownership, use or rights over
and in the public rights-of-way, and pursuant to its other regulatory authority, believes it is in the
best interests of the public to provide to the Company, and its successors, a non-exclusive
franchise to operate its cable 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 interests of the residents of
the City,
NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah, as
follows:
SECTION 1. Short Title. This Ordinance shall be known as the Qwest Broadband
Services, Inc. Cable Television Franchise Ordinance.
SECTION 2. Defined Terms. The following terms shall have the following meanings
when used in this Ordinance. Any other capitalized terms used in this Ordinance and not
otherwise defined in this Section 2 shall have the meaning ascribed thereto in the Agreement (as
defined below).
Agreement shall mean the Cable Television Franchise Agreement, by and between the
City and the Company, a substantially final copy of which is attached hereto as Exhibit A, as
finally executed by the parties.
Authorized Area shall mean the entire area from time to time within the corporate limits
of the City.
Cable Services shall mean (a) the one-way transmission to all Subscribers of (i) video
programming, or (ii) other programming services, by which is meant information which the
Company makes available to all Subscribers generally; and
(b) Subscriber interaction, if any, which is required for the selection or use of such
video programming or other programming services.
Cable System or System shall mean both: A facility consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Services which is provided to multiple Subscribers within the
Authorized Area, but such term does not include (i) a facility that serves only to re-transmit the
television signals of one or more television broadcast stations; (ii) a facility that serves
Subscribers without using any public right of way; (iii) a facility of a common carrier which is
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subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as
amended, except that such a facility shall be considered a Cable System (other than for purposes
of Section 621(c) of such Act, 47 U.S.C. Section 541(c)) to the extent such facility is used in the
transmission of video programming directly to Subscribers, unless the extent of such use is solely
to provide interactive on-demand services; (iv) an open video system that complies with Section
653 of Title VI of the Communications Act of 1934, as amended; or (v) any facilities of any
electric utility used solely for operating its electric utility systems.
Cable Television Business shall mean the provision by the Company of Cable Services
solely by means of the Cable System.
Public Ways shall mean any present and future public rights-of-way, streets, highways,
alleys, viaducts, bridges, roads and lanes within the City(including the surface, subsurface and
airspace), which are owned by the City, or which have been dedicated to public use and which
are controlled and operated by the City. "Public Ways" shall also include public rights-of-way,
streets, highways, alleys, viaducts, bridges, roads and lanes within the City(including the surface,
subsurface and airspace) which are not owned by the City and have not been dedicated to the
public to the extent that despite such non-ownership and non-dedication, the City has the ability
to grant the rights set forth herein.
SECTION 3. Grant of Franchise. (a) There is hereby granted to the Company, and its
successors and assigns, in accordance with the terms and conditions of the Agreement, the right,
privilege, and franchise (collectively, the "Franchise"), to erect, construct, install, maintain and
operate in, under, along, over, across and through portions of the Public Ways, a Cable System to
provide Cable Services in the Authorized Area and to transact a Cable Television Business in
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such area. Upon the annexation of any territory to the City, all rights hereby granted, and the
Franchise, shall automatically extend to the territory so annexed, to the extent the City has
authority to so extend the Franchise. All facilities owned, maintained or operated by Company
within such annexed territory shall thereafter be subject to all of the terms and conditions of the
Agreement and this Ordinance.
(b) The Franchise and all rights granted hereunder are nonexclusive. The City
reserves the right to grant such other and future franchises as it deems appropriate. This
Ordinance does not establish any priority for the use of the Public Ways by the Company or by
any present or future franchisees or other permit holders. In the event of any dispute as to the
priority of use of the Public Ways, the first priority shall be to the public generally, the second
priority to the City in the performance of its various functions, and thereafter, as between the
Company and other franchisees and permit holders, as determined by the City in the exercise of
its powers, including the police power and other powers reserved to and conferred on it by the
State of Utah.
(c) This Ordinance is adopted, and the Franchise is granted, subject to all of the terms
and conditions of the Agreement, the substantially final form of which is attached hereto as
Exhibit A, and which is incorporated herein and made a part hereof as fully and completely as if
set forth herein. This Ordinance contains a summary of certain provisions of the Agreement.
Reference is hereby made to the Agreement for a full and complete description of such terms and
conditions. Any differences or discrepancies between this Ordinance and the Agreement shall be
resolved in favor of the Agreement.
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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, until November 1, 2020, plus any
extensions, subject to Section 8 hereof.
SECTION 5. Acceptance by Company. Within sixty (60) days after the effective date of
this Ordinance, the Company shall execute and deliver to the City Recorder of the City, a copy of
the Agreement. Such execution and delivery of the Agreement shall constitute the unqualified
acceptance by the Company of this Ordinance and the Franchise. Failure by the Company to
execute and deliver the Agreement as provided herein shall render this Ordinance and the rights
granted hereunder null and void.
SECTION 6. Consideration and Payment Dates.
(a) Franchise Fee. For and in consideration of the Franchise, and as fair and
reasonable compensation to City for the use by the Company of the Public Ways, the Company
shall pay the City throughout the term of the Franchise an annual amount equal to five percent
(5%) of the Company's Cable Gross Revenues (the "Franchise Fee"). Such payments shall be
made quarterly, and are due within forty-five (45) days after the end of each calendar quarter.
Each Franchise Fee payment shall be accompanied by a written report to the City, containing an
accurate statement in summarized form of the Company's Cable Gross Revenues and the
computation of the payment amount.
(b) Other Payments. The Franchise Fee is in addition to all sums which may be due
to the City under this Agreement, or for property taxes (real and personal), income taxes, license
fees, permit fees or other fees, taxes or charges which the City or any other governmental entity
may from time to time impose. It is agreed such other amounts do not constitute a Franchise Fee
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or any part thereof Without limiting the generality of the foregoing, Company shall pay: (i) the
City's cost of newspaper publication associated with adoption of this Ordinance, and (ii) an
administrative fee of $10,000 to reimburse Municipality for all costs and expenses associated
with the preparation and adoption of this Ordinance and the Agreement, payable upon the
effective date of this Ordinance.
(c) All sums not paid when due shall bear interest at the rate of ten percent (10%) per
annum computed monthly, or the highest lawful rate, whichever is less.
(d) The Company represents to the City that one of the purposes for entering into this
Agreement is to obtain authority to build a cable television network within the City to provide
cable service to customers within the City. The Company shall actively market cable services
and generate Cable Gross Revenue.
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 the Franchise within the City to others, 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. Early Termination or Revocation of Franchise. The City may terminate or
revoke the Franchise and all rights and privileges herein provided in accordance with Articles 9,
12 and 13 of the Agreement.
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SECTION 9. Chapters 5.20 and 5.21 of the Salt Lake City Code shall not apply to the
Franchise.
SECTION 10. This Ordinance shall take effect immediately upon publication of a
summary hereof, as certified by the City Recorder in accordance with Section 10-3-713, Utah
Code Annotated.
Passed by the City Council of Salt Lake City, Utah,this 17th day of November, 2005.
7eitiftk
CHAIRPER N
ATTEST:
CHIEF DEPUT CI ECJ ER �r' ;r�
Transmitted to the Mayor on November 18, 2005 •
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Mayor's Action: Approved Vetoed
MAYOR
ATTEST:
C.(441/.ert .,\_
I
CHIEF DEPUTYv RE ORDER
(SEAL) ( 1 /
(.
Bill No. 81 of 2005.
Published: December 7, 2005 .
1\n drives'BC6753\Qwest Cable Franchise\Qwest Cable Franchise Ordinance Final.doc
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EXHIBIT A
[Here attach form of Franchise Agreement.]
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