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098 of 1993 - Granting Right to Construct to0 93-41 0 93-1 SALT LAKE CITY ORDINANCE No. 98 of 1993 (Granting Right to Construct to Huish Detergents Inc.) AN ORDINANCE GRANTING A FRANCHISE TO HUISH DETERGENTS INC., A UTAH CORPORATION AUTHORIZED TO AND DOING BUSINESS IN THE STATE OF UTAH, ITS SUCCESSORS AND ASSIGNS, THE RIGHT AND PRIVILEGE TO CONSTRUCT, ERECT, OPERATE, AND MAINTAIN OVER AND UNDER THE FOLLOWING -DESCRIBED CITY STREETS, ALLEYS AND PUBLIC WAYS, WIRES, CABLES, AND UNDERGROUND CONDUITS, IN CONNECTION WITH ITS BUSINESS. Be it ordained by the City Council of Salt Lake City, Utah: SECTION 1. Grant of Franchise Authority. City, as Grantor, hereby grants a franchise to Huish Detergents Inc., hereinafter Grantee, to construct, operate, and maintain a telephone and/or telecommuni-cations system in the streets of Salt Lake City, as described in Exhibit "A" attached, subject to the conditions and restrictions as hereinafter provided. The franchise shall expire on December 31,2005. SECTION 2. Franchise Payments. A. Grantee herein shall annually pay to the City for the Franchise the greater of either: 1. The sum of THREE HUNDRED FIFTY AND NO/100--DOLLARS ($350.00) with the initial payment due and tendered concurrent herewith. Thereafter, said payment shall be due on or before the anniversary date hereof. On each successive anniversary date, hereinafter "Due Date", the annual franchise payment shall be increased by the same percentage increase, if any, in the Consumer Price Index herein specified for the preceding twelve month period ending the last day of December. 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 said month 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 2. To the extent Grantee competes with U. S. West by providing telephone service within Salt Lake City or otherwise derives revenue from telephone service, as defined in Section 5.04.170, Salt Lake City Code, Grantee shall pay City a sum of six percent (6%) of its annual gross revenues, as defined in Section 5.04.170, Salt Lake City Code. In the event that such services are not provided or do not exceed the sum set forth in subparagraph A. hereof annually, Grantee shall pay the sum set forth therein annually, which amount approximates the fair market rental value of the property. Grantee shall annually provide the City a certificate evidencing whether its revenue from the preceding year exceeded the approximate fair rental value of the property, as specified above. B. Such annual payments shall be made to Salt Lake City Corporation and sent to City's Property Manager at City and 2 County Building, Second Floor, Room 245, Salt Lake City, Utah 84111, unless notified of change of address in writing by the City. All payments shall be made annually on or before said Due Date. A delinquency penalty charge of ten percent (10%) of the annual payment shall be assessed on any payment not received by the City by the Due Date. Failure to make the annual payment and penalty charges within thirty (30) days of whichever Due Date is applicable above shall constitute breach of the terms of this Ordinance and constitute just cause for repeal hereof prior to the expiration of the current term, and such unpaid amount shall bear interest until paid at the rate of an additional ten percent (10%) per annum until paid. C. In the event the franchise should be terminated or forfeited prior to the end of its term, Grantee shall immediately submit to the City a financial statement showing the gross revenues of Grantee for the time elapsed since the last period for which Grantee has paid to the City the annual payment, and Grantee shall pay to the City not later than thirty (30) days following the termination of the franchise, any other sums legally due and owing to the City. D. Grantee shall annually submit to City, at the same time as its franchise payment is remitted, a certificate signed by a corporate officer of Grantee verifying that Grantee has not provided telephone service in Salt Lake City during the previous year. If Grantee has provided telephone service the certificate shall so indicate. Said certificate shall have attached thereto an auditor's statement showing the gross revenues from such 3 telephones service. In such event, the City shall have the right, but is not required, to inspect the Grantee's records showing the gross revenues from which its franchise payments may be computed and shall have the right of audit and recomputation of any and all amounts paid under the franchise. Failure to make such a report of telephone service shall be grounds for termi- nation of this franchise. No acceptance of any payment by the City shall be construed as a release of or an accord or satisfaction of any claim the City might have for further or additional sums payable under the terms of this ordinance or for any other performance or obligation of Grantee hereunder. SECTION 3. Insurance. A. At all times during the term of this franchise, Grantee shall obtain, pay all premiums for general comprehensive public liability insurance policy indemnifying, defending, and saving harmless Grantee, its officers, boards, commissions, agents, or employees, with the City as an additional named insured, from any and all claims by any person whatsoever on account of injury to or death of a person or persons occasioned by the operations of Grantee under this franchise with a minimum liability of $250,000 per personal injury or death of any one person and $500,000 for personal injury or death of any two or more persons in any one occurrence and $100,000 for property damage in any one occurrence, or $1,000,000 aggregate. B. The Grantee shall file with the City Director of Management Services, concurrent with the issuance of this franchise, a certificate of insurance verifying said coverage. 4 Such insurance as provided for in this section shall be kept in full force and effect by Grantee during the existence of and until after the removal of all poles, wires, cables, underground conduits, manholes, and other conductors and fixtures incident to the maintenance and operation of the system as defined in the franchise. C. All of the foregoing insurance contracts shall be in a form satisfactory to the City Attorney and shall be issued and maintained by companies authorized to do business in the State of Utah and acceptable to the City's Director of Management Services. The certificates shall require thirty (30) days' written notice of any cancellation to both the City and Grantee herein. SECTION 4. Guarantee Bond. A. Grantee shall, concurrent with this issuance of this franchise, execute to the City with good and sufficient securities, a guarantee bond to be approved by the City Attorney in the sum of TWO THOUSAND SEVEN HUNDRED FIFTY AND NO/100 DOLLARS ($2,750.00), or tender a cash bond in said amount, conditioned upon the faithful performance and discharge of the obligations imposed by this ordinance from the date thereof and remain in force and effect during the life of this franchise. Specifically, said guarantee bond or cash bond shall provide sufficient funds for the removal or relocation of the Grantee's facilities in the event of Grantee's noncompliance with this ordinance. B. The Grantee shall pay all premiums chargeable for the bond and shall keep the same in force and effect at all times 5 throughout the term of the franchise and until the removal of all poles, wires, cables, underground conduits, manholes, and other conductors and fixtures incident to the maintenance and operation of the system. C. The amount of the bond shall be subject to review and reasonable adjustment by the City. D. The bond shall contain a provision that it shall not be terminated or otherwise allowed to expire prior to thirty (30) days without prior written notice to the City. E. The bond shall be in a form satisfactory to the City Attorney, and a duplicate copy of it, along with written evidence of payment of the required premiums, shall be filed with the City's Director of Management Services during the term of the franchise. SECTION 5. Indemnity. Grantee shall at its sole cost and expense fully indemnify, defend, and save harmless the City, its officers, agent, and employees against any and all claims, suits, actions, liability, and judgments for damage, including City's attorney's fees, arising out of the Grantee's acts, omissions or the operation of the Grantee's business under this franchise. These damages or penalties shall include but shall not be limited to damages arising out of installation, operation or maintenance of the system authorized herein, whether or not any act or omission complained of is authorized, allowed, or prohibited by the franchise. SECTION 6. Books and Records of Grantee. A. Grantee shall file with the City's Directors of Public Services and Public 6 Utilities a copy, true and accurate, of maps and/or plats of all existing and proposed installations upon the streets. These maps and plats shall conform to the requirements of the City's Directors of Public Services and Public Utilities and shall be kept continuously up-to-date. B. All books and records of Grantee concerning its operation in connection with or related to its said tele- communication system shall be made available for inspection and audit by City's Director of Management Services or his designate within ten (10) days after any request for such inspection or audit shall be made. SECTION 7. Conditions of Street Occupancy. A. All structures, lines, and equipment erected by Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, and to cause minimum interference with the rights and reasonable convenience of property owners who join any of said streets. The system shall be constructed and operated in compliance with all City, State and national construction and electrical codes and shall be kept current with new codes as required. B. Except when necessary to service a subscriber and subject to the written approval and conditions, of the City's Director of Public Services, Grantee shall not erect, authorize, or permit others to erect any poles or facilities within the streets of the City for the conduct of its system but shall use the existing poles and other equipment of the appropriate electrical power and telephone and other utility companies under 7 such terms and agreements as the Grantee negotiates with these companies. The City shall cooperate with Grantee in negotiating and obtaining permission to use such facilities. C. No poles, cables, equipment, or wires for construction, maintenance and operation of the system shall be installed or the installation thereof commenced on any existing pole within the City until the proposed location, specifications and manner of installation of such cables, equipment, and wires are set forth upon a plot or map showing the existing poles, streets, alleys, or highways where such installations are proposed. The plot or map shall be submitted to the Director of Public Services and approved within a reasonable time in writing. Such approval shall not be unreasonably withheld. D. If Grantee is required, in the conduct of its business, to locate property within the streets of the City other than property which may be attached to utility poles, the nature of such property shall be disclosed to the Directors of Public Services and Public Utilities for approval as to the need thereof and as to the location within the street. The installation shall be made under such conditions as the Directors of Public Services and Public Utilities shall prescribe. E. Whenever the City or State shall require the relocation or reinstallation of any property of the Grantee in any of the streets of the City, Grantee shall, upon notice of such requirement, immediately remove and relocate or reinstall such property as may be reasonably necessary to meet the requirements of City or State. Such relocation, removal or reinstallation by 8 Grantee shall be at the sole cost of Grantee. City will cooperate with Grantee in said relocation by providing alternate space if reasonably available. F. If all the electric and telephone utilities in an area are located underground, it shall be the obligation of the Grantee to locate its property underground; however it is the policy of the City to have cable underground, when reasonably possible, and the City may direct Grantee to install cables underground when either electric or telephone lines exist underground. If electric utilities or telephone utilities are located underground in any place within the City after Grantee has installed its property, Grantee shall thereafter remove and relocate its property underground in such places. Where utilities are underground, Grantee may locate certain equipment above ground upon a showing of necessity and with written approval from the Director of Public Service. G. Grantee may trim trees overhanging the streets of the City to prevent the branches of such trees from coming in contact with the Grantee's wires and cable. All trimming on City property shall be done under the direction of the City Urban Forester and at the expense of Grantee. H. In case of disturbance of any public property by Grantee, the Grantee shall, at its own cost and expense and in a manner approved by the City's Director of Public Services, repair such public property in as good a condition as before such disturbance. Prior to commencing work, Grantee shall make application for a permit to work in the public way from the 9 office of the City Engineer. Grantee will abide by all regulations and requirements of the City Engineer for such works. Grantee shall maintain, repair, and keep in good condition, to the satisfaction of City Engineer, for a period of one year following such repair. I. Grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of such building. The expense of such temporary removal or raising or lowering of the wires shall be paid by the person requesting the same and Grantee shall have the authority to require such payment in advance. Grantee shall be given not less than forty eight (48) hours advance notice to arrange for such temporary wire changes. In the event of a disagreement between Grantee and a holder of a permit, such disagreement will be resolved by the City's Director of Public Services. J. If at any time, in case of fire, flood, earthquake or other emergency in the City, it shall become necessary in the judgment of the Mayor or the chief of the Fire Department to cut or move any of the wire cables, appliances or other fixtures of Grantee, this may be done and the repairs thereby rendered necessary shall be made by Grantee, at its own cost and expense and without charge against the City. K. Grantee's work, while in progress, shall be properly protected at all times with suitable barricades, flags, lights, flares, or other devices as are reasonably required by City regulation or ordinance or state law to protect all members of 10 the public having occasion to use the portion of the streets involved, or adjacent property. SECTION 8. System Installation. Within thirty (30) days after the acceptance of the franchise, the Grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including but not limited to any utility joint use agreements, and any other permits and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of the system. SECTION 9. Type of Equipment to Be Installed. Grantee shall specify in its proposal the type and capacity of the equipment to be installed and Grantee shall advise the Director of Public Services of any changes in this section of its proposal. No changes in the type and capacity of equipment shall be allowed unless such change is at least equal to or better than that proposed by Grantee in its application. SECTION 10. Operation Standards. The system shall be installed and maintained in accordance with the highest accepted standards of the industry to the end that the subscriber may receive the highest and most desirable form of service. SECTION 11. Supervision by the City. A. Grantee shall construct, operate and maintain the system subject to direction from all of the authorities of the City who have jurisdiction in such matters and in strict compliance with all laws, ordinances, and departmental rules and regulations. 11 B. The system and all parts thereof shall be subject to the right of periodic inspection by the City. SECTION 12. Grantee's Duty to Remove Its Properties from the Public Streets. A. Grantee shall promptly remove from the public streets all or any part of the facilities when one or more of the following conditions occur: 1. Grantee ceases to operate the system for a continuous period of six (6) months except when the cessation of service is a direct result of a natural or man-made disaster; 2. Grantee fails to construct said system as hereinabove and hereinafter provided; or 3. The franchise is terminated or revoked pursuant to notice as provided herein. B. Grantee shall receive notice, in writing from the City, setting forth one or more of the occurrences and shall have ninety (90) days from the date upon which said notice is received to remove such properties. C. Grantee, at the option of the City, may abandon any underground facilities in place, subject to the reasonable requirements of the Director of Public Services. In such an event, the abandoned system shall become the property of the City and Grantee shall have no further responsibilities or obligations concerning these facilities. SECTION 13. Operational Reports. Grantee shall furnish the Director of Public Services with progress reports indicating in detail the area of construction of the system. Such periodic reports. shall be furnished at three-month intervals, the first 12 report to be made three (3) months after the construction commencement date. SECTION 14. Removal of Facilities Upon Request. Upon termination of service to any subscriber, Grantee shall promptly remove all of its facilities and equipment from the premises of such subscriber upon his written request. Such removal shall be at no cost to the subscriber. SECTION 15. Compliance with State and Federal Laws. The Grantee shall at all times comply with all applicable laws and ordinances of the City, the State of Utah, and the federal government or any administrative agency thereof. SECTION 16. Filing Communications with Regulatory Agencies. Copies of all petitions, applications and communications submitted by Grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matter affecting operation, as it specifically applies to the City, shall also be submitted simultaneously to the City by filing the same with the City Attorney. SECTION 17. Restrictions Against Assignment. A. This franchise shall not be assigned or transferred either in whole or in part or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any person either by the act of Grantee or by operation of law without the prior written consent of the City, which consent shall not be withheld unreasonably. The granting, giving, or waiving of any one or 13 more of such consents shall not render unnecessary any subsequent consent or consents. B. Consent or approval of the City to any assignment, lease, transfer, sublease, or mortgage of the franchise shall not constitute a waiver or release of the rights of the City in and to the streets. C. Nothing in this section shall be deemed to prohibit a mortgage or pledge of the system equipment of any part thereof or a leasing by Grantee from another person of said system equipment or part thereof for financing purposes or otherwise. Any such mortgage, pledge, or lease shall be made only with the prior approval of the City and shall be subject and subordinate to the rights of the City under this ordinance of applicable law. SECTION 18. Revocation of Franchise. A. In addition to all of the rights and powers reserved or pertaining to City, the City reserves, as an additional and as a separate and distinct power, the right to terminate the franchise for any of the following reasons: 1. Grantee shall, by act or omission, violate any material term or condition of this ordinance and shall within thirty (30) days following written demand by the City, fail to correct the violation; 2. Any provision of this ordinance shall be finally adjudged by a court of law invalid or unenforceable and the City Council further finds that such provision constitutes a material consideration to the continuance of the franchise herein granted; 14 3. Grantee becomes insolvent, unable, or unwilling to pay its debts or is adjudged a bankrupt or all or part of Grantee's facilities are sold under an instrument to secure a debt and are not redeemable by Grantee within thirty (30) days from said sale; or 4. Grantee attempts to or practices any fraud or deceit in its conduct or relations under the franchise with the City or subscribers or potential subscribers. B. No revocation shall be effective unless or until the City Council adopts an ordinance setting forth the cause for the revocation and the effective date thereof. Such ordinance shall not be adopted without thirty (30) days written notice to Grantee and an opportunity for Grantee to be heard upon the proposed ordinance. If an ordinance is adopted and the ordinance depends upon a finding of fact, such finding of fact, as made by the City Council, shall be conclusive. C. The Grantee shall not be declared in default or be subject to any sanction under any provision of this ordinance in any case in which performance of any such provision is prevented for reasons totally beyond its control. SECTION 19. Grantee to Have No Recourse. A. Except as expressly provided in this franchise, Grantee herein shall have no recourse whatsoever against the City for any loss, cost, expense or damage arising out of the provisions or requirements of the franchise or because of the enforcement thereof by the City nor for the failure of the City to have authority to grant all or any part of the franchise. 15 B. Grantee expressly acknowledges that upon accepting a franchise, it does so relying upon its own investigation and understanding of the power and authority of the City to grant the franchise. C. Grantee, by acceptance of the franchise, acknowledges that it has not been induced to enter into the franchise by any understanding or promise or other statement whether verbal or written by or on behalf of the City or by any other third person concerning any term or condition of the franchise not expressed herein. D. Grantee further acknowledges by acceptance of the franchise that it has carefully read the terms and conditions hereof and is willing to and does accept all of the risks of the meaning of such terms and conditions and agrees that in the event of any ambiguity therein or in the event of any other dispute over the meaning thereof, the same shall be construed strictly against the Grantee and in favor of the City. SECTION 20. Failure of City to Enforce the Franchise. No Waiver of the Terms Thereof. Grantee shall not be excused from complying with any of the terms and conditions of the franchise by any failure of City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. SECTION 21. Time is of Essence to this Agreement. Whenever this franchise shall set forth any time for any act to be performed by or on behalf of Grantee, such time shall be deemed of the essence and any failure of the Grantee to perform within 16 time allotted shall be sufficient grounds for the City to revoke the franchise. SECTION 22. Grantee Will Not Contest Validity of Franchise. The Grantee agrees by the acceptance of the franchise that it will not assert, in any claim or preceding, that any condition or term of the franchise is unreasonable, arbitrary, or void or that the City did not have the power or authority to make such term or condition. SECTION 23. Rights Reserved to the City. Without limitation upon the rights which the City might otherwise have, the City does hereby expressly reserve the following rights, powers and authorities: 1. To exercise its governmental powers now or hereafter to the full extent that such powers may be vested in or granted to the City; 2. To grant additional franchises within the City to other persons for the conduct of telephone and telecommunication services; and 3. To exercise any other rights powers, or duties required or authorized, the City under the Constitution of the State of Utah, the laws of Utah, or the City Ordinances. SECTION 24. Extension of City Limits. Upon annexation of any territory to the City, the franchise shall not extend to the territory so annexed to the extent City has authority; and all facilities owned, maintained, or operated by the Grantee located within, under, or over streets of the territory so annexed shall thereafter be subject to all terms thereof. 17 SECTION 25. Effective Date and Acceptance by Grantee. This Ordinance shall take effect upon the date of its first publica- tion, provided however, Grantee shall file with the City Recorder, within ten (10) days from the date of execution of this Ordinance by the City Council, its written acceptance of this Franchise. If Grantee fails to file such acceptance, this Ordinance shall be null and void. Passed by the City Council of Salt Lake City, Utah, this 14t ATTE . ..• I F DER day of Transmitted to Mayor on December , 1993. December 14, 1993 ••.�tion: XXX Approved. 4Vetoed. Published: December 25, 1993 Garth\Word\Huieh-Fr.Ord v1 '7L^q',r 18 STATE OF UTAH :ss. County of Salt Lake ) On 1.:22-Carivetat /'{off /99 , personally appeared before me DEEDEE CORRADINI and s,/� KU' , who, being by me duly sworn, did say that they are the MAYOR and CHIEF DEPUTY RECORDER, respectively, of SALT LAKE CITY CORPORATION, a municipal corporation of the State of ah, and said persons acknowledged to me that said co orat' n e My Commission Expires: NOTARY PUBLIC STATE OF UTAH Ay Commission ou 111 SCOT C. CRANDALL 451 South State Street 1415 , S,Salt lake City, UW1 $4111 GL TARY PUB IC, residing in Salt Lake County, Utah 19 .faaaaaaaaar#r.7t",Saar„ a#aamaawarmmw#rgtammvtecmaanaaaawaaaaaaa#ea#a#atms ,.a#.aara#aaaa#aau,wrssu#aas-_a waansrsssyae+r,c.ntianax,a ae ',..-MMiaar5932#311a#aa.7. 1Ia�9: .Iammasa.#aaa!mnewn.a.aaar' ._..awaaaa aaaae.:xw... .Qema#u aoaawa#aauaausrmmol,7•3a«:u #am#a##aa#aaeFlore.,':.41aaa'w,ommrP6.::mammamaSaammum Am3 ftvaz aR#zca re'^p 3'. Tt �l :':n> a#aaaaaB#Ya#ammma• . 9aaaa#aaaam msss itlXa#S�Xi +J 8 tRs3�•:a. .,.. aanawaamae•sm�Mrnlsomme_wwaa#s--cv_=.._t... __•az"�, �; - _. _ _ ___ aye aa#aaraaman -'dJnR BINGHAM ENGINEERING 5160 Wley Post Way, Salt Lake City Utah 84116, 801 532-2520, 801 328-3381 FAX EXHIBIT "A" HUISH DETERGENT INC. CABLE EASEMENTS 3600 WEST STREET A 20.00 foot wide easement for the purpose of construction and maintenance of underground facilities, being 10.00 feet on each side of the following described centerline: Beginning at a point South 0°09'56" West 660.88 feet, along the monument line, and South 89°50'04" East 30.00 feet from the monument marking the intersection of 3600 West and 1820 South Streets, Centennial Industrial Park Phase 1, said point being on the easterly right-of-way line of said 3600 West Street, and running thence South 88°44'37" West 60.02 feet to the westerly right-of-way line of said 3600 West Street and being the point of terminus. 1820 SOUTH STREET A 20.00 foot wide easement for the purpose of construction and maintenance of underground facilities, being 10.00 feet on each side of the following described centerline: Beginning at a point South 89°50'04" East 324.23 feet, along the monument line, and South 0°09'56" West 30.00 feet from the monument marking the intersection of 3600 West and 1820 South Streets, Centennial Industrial Park Phase 1, said point being on the southerly right-of-way line of said 1820 South Street and running thence North 1 ° 14' 10" East 48.32 feet; thence South 89°50'04" East 60.00 feet; thence North 0°09'56" East 11.69 to the northerly right-of-way line of said 1820 South Street and being the point of terminus. CERTIFICATE OF ACCEPTANCE Ordinance No. of 1993 as adopted by the Salt Lake City, Utah, City Council is hereby accepted by Huish Detergents, Inc. on this day of , 1993. HUISH DETERGENTS, INC. BY: Attest: I:\GarthlWord\Huish-ac.ack DATE CERTIFICATE OF VERIFICATION I hereby verify that Huish Detergents, Inc. has not provided local exchange telephone service in Salt Lake City, Utah during the previous year. HUISH DETERGENTS, INC. DATE BY: Attest: I:\GarthlWord\Huish-vr.ack CERTIFICATE OF ACCEPTANCE Ordinance No. of 1993 as adopted by the Salt Lake City, Utah, City Council' s hereby accepted by Huish Detergents, Inc. on this /7 day of perd?m/ r' , 1993. HUISH DETERGENTS, INC. 4;//r(4e: DAT BY: .5'? F 414/W/i Attest: I:\GarthlWord\Huish-ac.ack CERTIFICATE OF VERIFICATION I hereby verify that Huish Detergents, Inc. has not provided local exchange telephone service in Salt Lake City, Utah during the previous year. HUISH DETERGENTS, INC. /2�7y4 DATE BY: e►lo-e4-e, 7-2R,df,A.4-4.07 Attest: I:\GarthlWord\Huish-vr.ack