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076 of 1987 - Granting Right to Construct to University of Utah 0 87-1 OR# INAL U 87-32 A% (mom SALT LAKE CITY ORDINANCE No . 76 of 1987 (Granting Right to Construct to University of Utah) AN ORDINANCE GRANTING TO UNIVERSITY OF UI'AH 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 REASEARCH INSTRUCTION, ADMINISTRATION, AND OTHER TELECOM- MUNICATION NEEDS. Be it ordained by the City Council of Salt Lake City, Utah: SECTION 1. Definitions. For purposes of this ordinance the following terms, phrases, words, abbreviations and their deriva- tions shall have the same meaning given herein . When not incon- sistent with the context, words used in the present tense include the future ; words in the plural number include singular number ; and words in the singular number include the plural . The word " shall" is always mandatory and not merely directory. A. "City" shall mean Salt Lake City Corporation, a municipal corporation of the State of Utah . B. "Mayor" shall mean the existing or succeeding chief administrative officer of the City, or his designate . C. "Council" shall mean the present legislative governing body of the City or any successor . D. "City Attorney" shall mean the chief legal officer of the City. E. "Director of Finance" shall mean the chief financial officer of the City. F. "Director of Public Works" shall mean the director of public works of the City. G. "Person" shall mean any person, firm , partnership, association , corporation , company or organization of any kind . H. "Grantee" shall mean the UNIVERSITY OF UrAH or any person who succeeds the Grantee in accordance with the provisions of this franchise . I. "University" shall mean the Grantee, including but not limited to , itscolleges , departments , research groups , service agencies, TV and radio stations, and Grantee' s operating subsidiary. J. "Gross receipts" shall mean all revenue derived directly or indirectly by Grantee fran third parties from operation or use of the system within the City, with no deductions whatsoever . K. "Street" shall mean the surface of and the space above and below any public street , road , highway, freeway, lane , path, public way , or place, alley , court, boulevard , parkway, drive or other easement now or hereafter held by the City, and described herein, for the purpose of public travel , and specified herein, which shall , within the the requirements hereof , entitle the Grantee hereunder to the use thereof for the purposes of -2- installing standard railroad tracks , spurs, or other trackage or facilities pertinent thereto . L. "System" shall mean the wires, cables, conduits, conductors , ducts, fibers , and other related property as may be ordinarily necessary and pertinent to the facilities installed hereunder by Grantee over or under City' s Streets . M. "Subscriber" shall mean a purchaser of any service delivered over or using the Grantee' s system. SECTION 2. Grant of franchise authority. City hereby creates the right, privilege , and franchise for Grantee to construct, operate, and maintain its system solely in the streets of Salt Lake City described in Exhibit "A" attached , subject to the conditions and restrictions as hereinafter provided . The term of the franchise shall be fifteen (15 ) years from the date this ordinance becomes effective. SECTION 3. Franchise Payments . A. Grantee herein shall pay annually to the City for the use of the designated streets and other related facilities of the City in the operation of its system , and for the municipal supervision thereof during the life of this franchise the greater of either : 1. The sum of ONE THOUSAND SEVEN HUNDRED AND SEVENTEEN DOLLARS, ( $1, 717. 00 ) , with the initial payment due and tendered within thirty ( 30) days from the effective date hereof. Thereafter, said payment shall be due on or before -3- dur ing the term hereof . This sum approximates the annual fair market rental value of that part of the said streets encumbered by the system hereunder . 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 Statistices 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 Oar 2 . To the extent Grantee ccmpe tes with Mountain Bell Telephone Company by providing intraexchange service within the Salt Lake City local calling area ( as defined by Moun- tain Bell' s tariff on file with the Utah Public Utilities Commission) or otherwise derives local exchange service revenues , as defined in Section 20-3-14( b) of Salt Lake City Ordinances, ( or any successor section thereto ) , from fur- nishing services from within Salt Lake City, Grantee shall pay City a sum of six percent ( 6% ) of the annual gross -4- receipts per annum of Grantee from all revenue received by providing such intraexchange or basic local exchange service. within ninety ( 90 ) days of January lst each year Grantee shall annually provide the City a certificate evidencing whether its said gross receipts from the pre- ceding year exceeded the approximate fair rental value of the property , as specified above , and if so , concurrent therewith pay the difference . B. Such annual payments shall be made to Salt Lake City Corporation and sent to City's Property Manager at 324 South State Street, Fifth Floor, 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 ( 3 0) days of whichever Due Date is applic- able above shall constitute breach of the terms of this franchise and constitute just cause for termination 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 the term, Grantee shall immediately submit to the City a financial statement prepared as before -5- required , showing the gross receipts of Grantee for the time elapsed since the last period for which Grantee has paid to the City the required percentage of gross annual receipts or rental , and Grantee shall pay to the City not later than thirty (30 ) days following the termination of the franchise , a like percentage of such gross receipts and/or any other sums legally due and owing to the City. D. The City shall have the right to inspect the Grantee' s records showing the gross receipts from which its franchise payments are computed and shall have the right of audit and reccmputation of any and all amounts paid under the 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 4. Indemnity. Grantee agrees to indemnify, save harmless and defend City, its agents and employees , harmless from and against all losses, claims, demands , actions, damages, costs, charges , and causes of action of every character , including attorney' s fees, based upon or arising out of or by reason of Grantee' s construction , installation , and maintenance of the system and the operation of the systerm herein authorized on the Streets set forth in Exhibit "A" hereof . -6- The parties hereto are both governmental entities as defined in the Governmental Immunity Act , and , as to third parties only, nothing therein may be construed as a waiver or abandonment of any rights or defenses otherwise available to the parties. This provision relates solely to the parties hereto and is of no effect in establishing any rights or privileges with respect to third parties. SECTION 5. Books and Records of Grantee . A. Grantee shall file with the City' s Directors of Public Works and Public Utilities a copy, true and accurate , of maps and/or plats of all existing and proposed installations of the system upon the said streets. These maps and plats shall conform to the requirements of the City' s Directors of Public Works and Public Utilities and shall be kept continuously up-to-date . B. All books and records of Grantee concerning the system shall be made available for inspection and audit by City' s Director of Finance or his designee within ten (10 ) days after any request for such inspection or audit shall be made. C. Copies of all rules, regulations, terms , and conditions established by Grantee for its operation under this franchise shall be filed with the City Attorney. SECTION 6. Conditions of Street Occupancy. A. All of the system installed 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 -7- rights and reasonable convenience of property owners who join any of said streets. The system shall be constructed and operated in canpliance with all City , state and national construction and electrical codes and shall be kept current with new codes as requi red . B. Except when absolutely necessary to service a subscriber and not simply because it shall be more convenient , economical , or profitible for Grantee to so operate , and then only when expressly permitted in writing by the City' s Director of Public Works under such conditions as he shall prescribe for the public welfare , 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 such terms and agree- ments 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 the con- struction, 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 shall have been set forth upon a plot or map showing the existing poles , streets , alleys , or highways within the city where such -8- installations are proposed and submitted in writing by Grantee to the City' s Director of Public Works and approved by that department in writing . Such approval or disapproval with the reasons therefor , shall be given in writing to Grantee within a reasonable period of time . D. Should the Grantee be 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, then in that event , before Grantee shall install or shall permit any other person to install for Grantee any of such property as part of said system in the street, the nature of such property shall be disclosed to the City' s Director of Public Works for his approval as to the need thereof and as to the location within the street and only installed under such conditions as he and the Director of Public Utilities shall prescribe concerning such location or installation. E. Whenever the City or State shall require the relocation or reinstallation of any property of Grantee in any of the streets of the city , it shall be the obligation of Grantee upon notice of such requirement to immediately remove and relocate or reinstall such property as may be reasonably necessary to meet the require- ments of the City or State. Such relocation, removal or rein- stallation by the Grantee shall be at the sole cost of Grantee . F. Whenever part or all of the system shall be located underground , it shall be the obligation of the Grantee to locate -9- or to cause its property to be located underground within such places , however it is the policy of the City to have the maximum amount, if not all , cable possible underground and the City may direct the Grantee to install cables underground when either electric or telephone lines exist underground . If the electric utilities or telephone utilities shall be located underground in any place within the city after Grantee shall have previously installed its property, nevertheless, Grantee shall at the same time or immediately thereafter remove and relocate its property also underground in such places. In areas of the city where utilities are underground , Grantee may locate certain equipment above ground upon a showing of necessity to and approval by the City' s Director of Public Works . If applicable, facilities of the Grantee placed underground at the property owner' s request in an area where electric utilties or telephone utilities are aerial shall be installed with the additional expense paid by the property owner. G. Grantee shall have the authority to trim trees over- hanging the streets of the city so as to prevent the branches of such trees from coming in contact with Grantee ' s wires and cable. All such trimming on City property shall be done under the direction of the City and at the expense of Grantee . H. In case of disturbance of any street caused by Grantee, the Grantee shall at its own cost and expense and in a manner, and subject to the approval by the City' s Director of Public -10- Works , replace and restore such street in as good a condition as before the work involving such distrubance was done. Prior to canmencing work in the public way , Grantee will make application for a permit to work in the public way fran the office of the City Engineer . Grantee will abide by all regulations and requirements of the City Engineer for such works . I. Grantee shall maintain , repair , and keep in good condi- tion , to the satisfaction of City Engineer , for a period of one year following such disturbance, all portions of a sidewalk or street disturbed by it or its agents . J. 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 Works . K. If at any time in case of fire or disaster 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 which are part of the system -11- 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. L. 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 the public having occasion to use the portion of the streets involved , or adjacent property. SECTION 7. Initial System Installation. Within thirty ( 30) days after the acceptance of this franchise , 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 8. Type and Capacity of Equipment to Be Installed . Grantee shall specify in its proposal the type and capacity of the equipment to be installed in and as part of the system , and Grantee shall advise the City' s Director of Public Works of any changes in this section of its proposal . No changes in the type and capacity of equipment to be installed shall be allowed unless such change is at least equal to or better than that proposed by Grantee in its application . -1 2- SECTION 9. Operation Standards. The system shall be in- stalled 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 10. Supervision by the City. A. Grantee shall construct , operate and maintain the system subject to direction fran 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. B. The system and all parts thereof shall be subject to the right of periodic inspection by the City. SECTION 11. Grantee' s Duty to Remove Its Properties from the Public Streets. A. Following Grantee' s commencement of service through and over its system, Grantee shall promptly remove from the public streets where its properties are located all or any part of the facilities so located when one or more of the following enumerated conditions occur : 1. Grantee ceases to operate the system for a continuous period of six (6) months fran the date of said cessation, 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 here inabove and hereinafter provided . -13- 3 . The franchise expires, is terminated or revoked pursuant to notice as provided herein . B. Grantee shall be entitled to receive notice in writing from the City setting forth one or more of the occurrences hereinabove enumerated or such other occurrence hereinbefore or hereinafter provided and shall have ninety ( 90 ) days from the date upon which said notice is received to remove such properties as here inabove required . SECTION 12. Operational Reports. Grantee shall furnish the City' s Director of Public Works 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 report to be made three ( 3 ) months after the construction commencement date . SECTION 13. Removal of Facilities Upon Request. Upon termination of service to any subscriber, Grantee shall pranptly 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 14. 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 15. Filing Communications with Regulatory Agencies. Copies of all petitions, applications and communications submitted -1 4- by the 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 16. Restrictions Against Assignment. The Grantee shall not assign , sell , lease or otherwise voluntarily or involuntarily transfer this franchise either in whole or in part without the prior written consent of City, which consent shall not be unreasonably withheld . SECTION 17. Revocation of Franchise . A. In addition to all of the rights and powers reserved or pertaining to the City, the City reserves as an additional and as a separate and distinct power the right to terminate the franchise and all rights and privileges of the Grantee hereunder in any of the fo l l owi ng events or for any of the following reasons : 1. Grantee shall by act or omission, voluntarily or involuntarily, violate any tern or condition of this ordinance and shall within thirty ( 30 ) days following written demand by the City to effect such campliance fail to do so . 2. Any provision of this ordinance shall be finally adjudged by a court of law invalid or unenforceable and the -1 5- City Council further finds that such provision constitutes at that time a consideration material to the continuance of the franchise herein granted . 3. Grantee becomes insolvent , unable , or unwilling to pay its debts or is adjudged a bankrupt or all or part of Grantee' s facilities should be sold under an instrument to secure a debt and are not redeemable by Grantee within thirty (30) days from said sale . 4. Grantee attempts to or does practice 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 effected unless or until the City Council shall have adopted an ordinance setting forth the cause and reasons for the revocaton and the effective date thereof . Such ordinance shall not be adopted without at least ten (10) days' notice prior thereof to Grantee and an opportunity for Grantee to be heard upon the proposed action of said proposed ordinance. In the event such an ordinance is adopted and said ordinance depends upon a finding of fact, such finding of fact as made by the City Council after the hearing if requested as provided for shall be conclusive. SECTION 18. 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, or expenses or damage arising out of the provisions -16- or requirements of the franchise or because of the enforcement thereof by the City nor for the failure of the City to have the authority to grant all or any part of the franchise . 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 obtain 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 here in . D. Grantee further acknowledges by acceptance of the fran- chise 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 terns 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 19. Failure of City to Enforce the Franchise . No Waiver of the Terms Thereof . Grantee shall not be excused from complying with any of terms and conditions of the franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions . -1 7- SECTION 20. Time is of Essence to this franchise . Whenever this franchise shall set forth any time for any act to be per- formed by or on behalf of the Grantee , such time shall be deemed of the essence and any failure of the Grantee to perform within time allotted shall always be sufficient grounds for the City to revoke the franchise . SECTION 21. Grantee May Contest Validity of Franchise and Termination . 1. This Agreement is based upon the history of good faith cooperation between Salt Lake City and the University of Utah that has characterized Research Park . However, in signing this Agreement, the Grantee does not waive its right to seek judicial or legislative clarification relative to the appropriateness of this franchise and the fees imposed in connection herewith . Furthermore, the Grantee does not waive any claims it may have to interests in land reserved to Grantee by operation of law or grant of dedication for public use , nor waive a claim that the use is , in fact, a public use. No provision herein or payment may be construed as an admission or evidence of any unauthorized activity by Grantee. However, Grantee agrees that in the event the fees contemplated hereunder are determined finally by a court or courts of appropriate jurisdiction to be inappropriate or unnecessary or that other restrictions herein are deemed to be inappropriate, Grantee hereby waives the right to seek -1 8- reimbursement for any of the funds or fees paid to City pr io r to such a decision . 2. Either party may cancel and terminate this Franchise Agreement at any time upon one year's prior written notice sent by certified mail to the other . SECTION 22. Rights Reserved to the City . A. 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 telecommuni- cation services under any conditons whatsoever acceptable to the City, notwithstanding the same might later be alleged to be more favorable than the rights granted herein . 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 23. Effective Date . This Ordinance shall take effect upon the date of its first publication . -1 9- Passed by the City Council of Salt Lake City , Utah, this 15th day of October. 1987. ATTEST: CITY ECO 7 R CHA 11 RMAN Transmitted to Mayor on 10/15187 Mayor's Action: XX Approved . Ve toed . ATTEST: CI Y ECO E MAYOR SEAL The foregoing franchise , upon its enactment, is acknowledged and accepted by University of Utah day of 1987. By Title : BiU 76 o6 1987 Pubtbsh.ed: 10124187 —20— S TA T E OF 5�tr CAC►clr� ) s s . County of ) On the day ofrr 1987, personally appeared before me Gt� L�'� / • ��/ ( and who being by me duly sworn, did say that they are the V- C @, Pie�s7{D and of UNIVERSITY OF UTAH, and that the foregoing instrument was signed in behalf of UNIVERSITY OF UTAH and said persons acknowledged to me that said UNIVERSITY OF UTAH executed the same . NOTARY PUBLIC, residing in Salt Lake County, Utah My Commission Expires: rc3 -21- ` EBll , All Description of Easements for a Franchise Agreement for Communications Conduit and Cable PARCEL "A" A strip of land 10 feet wide, the center line of which is described as follows: beginning at the southerly monument at the intersection of Wakara Way and Arapeen Drive called SLC-13 on the drawings thence North 11058132" East, 1851.523 feet to a point on the southwesterly boundary of the street right-of-way, said point being the point of beginning; thence North 22042'25" East, 27.85 feet to a point on the northwesterly boundary of the street right- of-way. Containing 277 square feet. PARCEL "B" A strip of land 10 feet wide, the center line of which is described as follows: beginning at the southerly monument at the intersection of Wakara Way and Arapeen Drive called SLC-13 on the drawings thence North 12057'26" East, 1825.35 feet to a point on the northerly boundary of the street right-of-way, said point being the point of beginning: thence South 58020'40" East 120. 17 feet; thence South 73 59'04" East 56.18 feet to intersection point "A"; thence North 48000'58" East, 25.00 feet to a point on the northeasterly boundary of the street right-of-way; thence beginning at intersection point "A" described above, South 27 35'39" West 80.42 feet to a point on the southeasterly boundary of the street right-of-way. Containing 2767 square feet. PARCEL "C" A strip of land 10 feet wide, the center line of which is described as follows: beginning at the southerly monument at the intersection of Wakara Way and Arapeen Drive called SLC-13 on the drawings thence North 32035'39" East, 1577.06 feet to a point on the northwesterly boundary of the street right-of-way, said point being the point of beginning; thence South 43041'17" East, 23.07 feet; thence South 40 58'13" East, 120.45 feet to intersection point "B"; thence South 37048'47" East 23.17 feet a point on the southwesterly boundary of the street right-of-way; thence beginning at intersection point "B" described above, South 48 46'12" West, 18.64 feet to a point on the southwesterly boundary of the street right-of-way. Containing 1902 square feet. PARCEL "D" A strip of land 10 feet wide, the center line of which is described as follows: beginning at the southerly monument at the intersection of Wakara Way and Arapeen Drive called SLC-13 on the drawings thence North 50018'07" East, 1498. 18 feet to a point on the southwesterly boundary of the street right-of-way; thence North 59057'07" East, 104.67 feet to a point the northeasterly boundary of the street right-of-way. Containing 1047 square feet. Page 2 Franchise Agreement Easement Description PARCEL "E" (Alternate) A strip of land 10 feet wide, the center line of which is described as follows: beginning at the southerly monument at the intersection of Wakara Way and Arapeen Drive called SLC-13 on the drawings thence North 40011118" East, 577.12 feet to a point on the easterly boundary of the street right-of-way which point is the point of beginning; thence South 41046'04" West, 91.40 feet; thence South 34 5l'24" West, 92.08 feet to a point on a 2124.05 foot: radius curve to the right; thence 164.60 feet along the arc of the curve (chord bearing South 37012'06" West) ; thence South 39025'17" West, 137.07 feet to a point on a 45.00 foot radius curve to the left; thence 65.58 feet along the arc of the curve (chord bearing South 8024145" West 62.43 feet) ; thence South 36046114" West, 97.764 feet to a point on the southerly boundary of the street right-of-way. Containing 6486 square feet. s y