5.05: Cable Non-Exclusive Franchise
Chapter 5.05
CABLE TV NON-EXCLUSIVE FRANCHISE
Sections:
5.05.010 Grant of Franchise
5.05.020 Definitions
5.05.030 Franchise area and term
5.05.040 Other Ordinances
5.05.050 Authority Over Non-Cable Services
5.05.060 Level Playing Field
5.05.070 Significance of franchise
5.05.080 Operation of franchise
5.05.090 Customer service
5.05.100 Extension of network and programming
5.05.110 Occupancy of street and public easements
5.05.120 Rights reserved to the City
5.05.130 Payments
5.05.140 Subscriber privacy
5.05.150 Acceptance of franchise
5.05.160 Termination of franchise
5.05.170 Liability and indemnification
Section 5.05.010 Grant of Franchise
This ordinance identifies and defines the terms and conditions by which a non-exclusive franchise may be granted to erect, construct, operate and maintain, upon, along, across, above, over and under the streets, alleys, easements, public ways and public places in Lindon City, Utah, any poles, wires, cables and other conductors and fixtures necessary for the interception, sale and distribution of television signals and other services. This ordinance shall be incorporated by reference in any agreement granting a franchise for cable services within the Lindon City.
Section 5.05.020 Definitions
For the purposes of this ordinance, the following terms, phrases and words and their derivatives shall have the meaning specified herein. When not inconsistent with the context, the words used in the present tense include the future and words in the singular number include words in the plural number.
1. "Additional, other programming service or optional service" means information that an Operator makes available to all Subscribers generally.
2. “Affiliate” when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person.
3. "Basic service" means the lowest priced tier of Cable Service that includes the retransmission of local broadcast television signals.
4. "Cable Act" means the Title VI of the Communications Act of 1934 as currently established or as hereafter modified or amended.
5. "Cable Franchise Ordinance" shall mean this ordinance as approved or modified by the City Council of Lindon City.
6. “Cable Services” shall mean (1) the one-way transmission to Subscribers of (a) video programming, or (b) other programming service, and (2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programing service.
7. "City" means Lindon City, Utah and such reorganized, consolidated, enlarged or reincorporated form as may exist during the term of a franchise. Any act to be performed by the City pursuant to this ordinance shall be deemed to be performed by authority of the City Council unless otherwise specifically designated or unless the City's City Council shall specifically designate other individuals or governmental agencies to perform such acts.
8. "FCC" means the Federal Communications Commission and any legally appointed or elected successors.
9. "Franchise" means an initial authorization, or renewal thereof issued by the City, whether such authorization is designated as a Franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the construction or operation of a Cable System and includes the agreement between the City and any person or entity which incorporates and implements the privileges and covenants of this Franchise Ordinance.
10. "May" is permissive.
11. "Network or Cable System" means the facilities, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designated to provide Cable Services which includes video programming and which is provided to multiple Subscribers within the Service Area and is authorized by this Franchise Ordinance.
12. "Operator" means any person or group of persons who provides Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such Cable System, or who otherwise controls or is responsible for, through any arrangement, the management and operation of such a Cable System.
13. "Person" means any individual, partnership, association, joint stock company, trust, or governmental entity.
14. "Gross Revenues" means all revenues in whatever form, from any source, directly received by the Operator or Affiliate of the Operator that would constitute a Cable Operator of the Cable System under the Cable Act, derived from the operation of the Cable System to provide Cable Services in any manner that requires use of the Public Ways in the Service Area. Gross Revenues shall include, but are not limited to, basic, expanded basic and pay service revenues, revenues from installation, rental of converters, the applicable percentage of the sale of local and regional advertising time, cable Internet services to the extent this service is considered to be a Cable Service as defined by law, and any leased access revenues.
Gross Revenues do not include any fees or taxes which are imposed directly or indirectly on any Subscriber by any governmental unit or agency, and which are collected by the Grantee on behalf of a governmental unit or agency. Gross Revenues do not include franchise fees, or revenue which cannot be collected by the Grantee and are identified as bad debt; provided, that if revenue previously representing bad debt is collected, this revenue shall be included in Gross Revenues for the collection period.
15. "Service area" shall mean all geographical areas within the incorporated portions of the City and any area hereinafter incorporated into the City.
16. "Shall" and "Must" are mandatory and not merely directory.
17. "State" means the State of Utah.
18. "Street or Public Way" shall mean such of the following which have been or hereafter will be dedicated to the public or rights-of-way not dedicated to the public which the City uses or rights-of-way dedicated for compatible uses and maintained under public authority and located within the service area: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, right-of-way and similar public ways and extensions and additions thereto, together with such other public property and areas that the City shall permit to be included within the definition of street from time to time which shall entitle the City and the Operator to the use thereof for the purpose of installing, operating, repairing, and maintaining the Cable System.
19. "Subscriber" shall mean any person who with the knowledge and permission of an Operator received either basic service or additional or optional service from the Operator.
Section 5.05.030 Franchise area and term
1. Franchise area. The franchise area shall include all of the service area.
2. Franchise term. A franchise may be granted for up to fifteen (15) years. The specific term of franchise together with the effective and expiration dates shall be specified in the franchise agreement.
Section 5.05.040 Other Ordinances
The Operator shall be subject to the terms of any lawfully adopted generally applicable local ordinance, to the extent that the provisions of the ordinance do not have the effect of limiting the benefits or expanding the obligations of the Operator that are granted by a Franchise. Neither the City nor the Operator may unilaterally alter the material rights and obligations set forth in a Franchise, provided however that the Operator agrees that it is subject to the lawful exercise of the police power of the City.
Section 5.05.050 Authority Over Non-Cable Services
To the extent allowed by law, the City shall retain the authority to regulate and receive compensation for Non-Cable Services. If the Operator is allowed by law and chooses to provide Non-Cable Services, the Operator and the City will negotiate the terms and fees in accordance with applicable law.
Section 5.05.060 Level Playing Field
The City shall not authorize or permit any Person providing video programming services to enter into the City’s Public Ways in any part of the Service Area on terms or conditions more favorable or less burdensome to such Person than those applied to an Operator pursuant to a Franchise, in order that one Operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law.
Section 5.05.070 Significance of franchise
1. Franchise non-exclusive. No franchise agreement shall be exclusive. The City reserves the right to grant a similar franchise to any person at any time in accordance with applicable law.
2. Authority granted. Execution of a franchise agreement between the City and an Operator shall grant to the Operator the right and privilege to construct, erect, operate, modify, and maintain in, upon, along, above, over and under the streets, alleys, easements (including all easements occupied by any utility operated by the City or any public easements which are occupied by utilities or other compatible uses), public ways and public places and on all poles or through such conduit as may exist, such towers, antennas, cable, electronic equipment, and other network appurtenances necessary for the operation of the network in the City; provided, however, that the exercise of such right and privilege shall not interfere with the use of such streets by the City and such others as designated by the City to use such streets and public ways, and provided that the exercise of such right and privilege shall not be in conflict with any ordinance, procedure, code or regulation of the City.
3. Consent prior to transfer of franchise. The franchise described herein is a privilege to be held for the benefit of the public. The franchise shall not be sold, transferred, leased, assigned or disposed of, including, but not limited to, by force or voluntary sale, merger, consolidation, receivership, foreclosure or other means without the express written consent of the City Council of the City; provided, however, that denial of such consent shall not be unreasonable, arbitrary or capricious. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the Operator in the Franchise or Cable System in order to secure indebtedness. Within thirty (30) days of receiving a request for transfer, the City shall notify the Operator in writing of any additional information it reasonably requires to determine the legal, financial and technical qualifications of the transferee. If the City has not taken action on the Operator’s request for transfer within one hundred twenty (120) days after receiving such request, consent by the City shall be deemed given. In no event shall a transfer of ownership be effective without a successor in interest becoming a signatory to the franchise agreement by providing the City written acceptance of all provisions of this Franchise ordinance in a form acceptable to the City. Failure to provide acceptable written acceptance shall be cause for revocation of the franchise.
4. Mortgage or pledge of network. Nothing in this ordinance shall be deemed to prohibit the mortgage or the pledge of any franchise granted pursuant to this Ordinance, or of the Network or any part thereof or a leasing by the Operator from another person of said Network or part thereof for financing purposes. However, any such mortgage, pledge or lease shall be subject to the rights of the City under this Ordinance and other applicable laws.
5. No right of property. Anything contained herein to the contrary notwithstanding, the award of any franchise shall not impart to any Operator any right of ownership of streets or City-owned property or ownership of easement.
6. Franchise binding. Upon execution of a franchise agreement, this ordinance shall be binding upon the Operator, its successors, lessees or assignees and the City. This ordinance shall be binding upon any entity which is controlled by, or under common control with, the Operator.
7. Compliance with laws, rules and regulations. The Operator, at its expense, shall comply with all laws, orders and regulations of federal, state and municipal authorities and with any direction of any public officer or officers pursuant to law who shall legally impose any regulations, orders or duties upon the Operator.
Section 5.05.080 Operation of the franchise
1. Operator rules and regulations. The Operator may adopt rules, regulations, terms, and conditions governing the conduct of its business as are reasonable necessary to enable the Operator to exercise its rights and perform its obligations under the franchise. Any such rules, regulations, terms and conditions shall be in compliance with this ordinance and with applicable state and federal laws, rules and regulations. Upon request by the City, copies of all rules, regulations, terms and conditions including subscriber agreements together with any amendments, additions, or deletions thereto, shall be kept currently on file with the city official designated to enforce provisions of the Franchise ordinance. Subscriber agreements shall give notice of the office or manager of the Operator to whom complaints shall be directed.
2. Transmission signals. The Operator shall be responsible for insuring that the Cable System is designed, installed and operated in a manner that is in compliance with the technical and performance standards of the FCC rules in Subpart K of Part 76 of Chapter I of Title 47 of the Code of Federal Regulations as revised or amended from time to time. The Operator shall maintain tests and records in accordance with these rules and shall provide access to such documentation to the City upon reasonable request; however, the City has no authority, pursuant to federal law, to enforce compliance with such standards.
3. Signal disruption. Excluding conditions beyond its control, the Operator shall respond to subscriber outage or poor signal reception as expediently as reasonably possible after receipt of any subscriber complaint, and in any event within twenty-four (24) hours after the disruption becomes known. Service and technical employees of the Operator shall be clearly identified as employees of the Operator. Repairs to the network shall be made with as little interruption of service as possible. When possible, planned interruptions shall be scheduled at times of minimum subscriber viewing.
4. Complaint file–and reports. The Operator shall keep an accurate and comprehensive file of all complaints regarding the cable communications system and the Operator’s actions in response to those complaints. The Operator shall also maintain a log and summary of all service interruptions. The files shall be available for inspection by the City during normal business hours provided such inspection does not conflict with the privacy provisions of the Cable Act and this Ordinance.
5. Notification of access to property. The Operator shall provide reasonable notice to subscribers and property owners before it enters upon or crosses any private property in order to access a public easement or right of way. For any type of construction, reasonable notice shall include personal contact with the owner or resident (at least 18 years of age) at least three (3) days prior to the access. If personal contact cannot be made, reasonable notice shall include mailing or posting the property with a description of the work to be done, the purpose of the work, the date and time of the work, and the authority under which the Operator may have access. All notices whether written or in person shall include a telephone number that individuals may call to ask questions or obtain additional information.
6. Restoration by Operator. The Operator shall repair, refill, replace and otherwise restore at its own expense any private or public property disrupted or managed as a result of excavation, construction, maintenance, or repair that may be caused by it and shall leave all ways and places in as reasonable good condition as that prevailing prior to the Operator’s activities without affecting any electrical or telephone cable, wire, or attachments and poles.
7. Restoration by City–Reimbursement of costs. In the event of a failure by the Operator to complete within a reasonable period of time any restoration work required by this ordinance, or any other work required by City ordinance, within the time established and to the satisfaction of the City, the City shall give the Operator, by registered mail, five (5) working days notice to correct the failure. If the failure is not corrected within the five (5) day period, the City may cause such work to be done and the Operator shall reimburse the City the costs thereof within thirty (30) days after receipt of an itemized list of such costs.
8. Notification of change in service. The Operator shall provide reasonable notice to subscribers and the City of any changes in service including but not limited to changes in available channels, tiers of service, and costs of services. Reasonable notice shall include printed notice to all subscribers and a letter to the City which details the change in service distributed at least thirty (30) days prior to the effective date of the change.
9. Rates. The Operator shall establish rates for its services and shall apply those rates uniformly to all subscribers in the service area. The Operator may conduct promotional campaigns in which its rates are discounted or waived, or offer bulk discounts for multiple dwelling units, hotels, motels, and similar institutions. The City may regulate rates to the extent now or hereafter permitted by applicable law.
10. Compliance, Books & Records. The Operator shall allow the City, upon thirty (30) days written notice, to review such of its books and records at the Operator’s business office, during normal business hours and on a nondisruptive basis, as is reasonably necessary to ensure compliance with the terms of this Ordinance and/or the Franchise. Such notice shall specifically reference the Section of the Ordinance and/or Franchise which is under review, so that the Operator may organize the necessary books and records for easy access by the City. Alternatively, if the books and records are not easily accessible at the local office of the Operator, the Operator may, at its sole option, choose to pay the reasonable travel costs of the City’s representative to view the books and records at the appropriate location. The Operator shall not be required to maintain any books and records for compliance purposes longer than three (3) years. Notwithstanding anything to the contrary set forth herein, the Operator shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature, nor disclose books or records of any affiliate which is not providing Cable Service in the Service Area. The City agrees to treat any information disclosed by the Operator as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof. The Operator shall not be required to provide Subscriber information in violation of Section 631 of the Cable Act.
11. Availability of reports to the public. Such reports as required under this ordinance must be available to the public in the office of the Operator during normal business hours.
12. Legal proceedings. Operator shall notify the City in writing of any actions, suits, proceedings, or investigations at law or in equity before or by a Court, public board or body, pending or threatened against or affecting Operator, wherein a decision, finding or ruling would have a materially adverse effect on the Operator’s ability to construct or operate the network.
Section 5.05.090 Customer service
1. The Operator will maintain a local, toll-free or collect call telephone access line which will be available to Subscribers twenty-four hours a day, seven days a week.
a. Trained representatives of the Operator will be available to respond to Subscriber telephone inquiries during Normal Business Hours.
b. After Normal Business Hours, an access line will be available to be answered by a service or an automated response system, including a phone answering system. Inquiries received after Normal Business Hours must be responded to by a trained representative of the Operator on the next business day.
2. Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, will not exceed thirty seconds when the connection is made. If the call needs to be transferred, transfer time will not exceed thirty seconds. These standards will be met no less than ninety percent of the time under Normal Operating Conditions, as measured by the Operator on a quarterly basis.
3. The Operator shall not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards set forth above unless a historical record of complaints indicates a clear failure to comply with the standards.
4. Under Normal Operating Conditions, the Subscriber will receive a busy signal less than three percent of the time.
5. Customer service center and bill payment locations will be open during Normal Business Hours and will be conveniently located.
6. Notice to subscribers. At the time of entering into an agreement to provide service, once a year thereafter and at any time upon request, the Operator shall provide each subscriber with written information concerning:
a. The procedures for making inquiries or complaints, including the name, address, and local telephone number of the employee or agent of the Operator to whom inquiries or complaints are to be directed, if applicable.
b. Credit for interrupted service, policies and practices.
c. The City official designated to be responsible for regulating the franchise, including the name and telephone number of the official.
d. The Operator’s business hours, legal holidays, telephone number, and procedures for responding to inquiries after normal business hours.
e. Products and services offered.
f. Prices and options for services and conditions of subscription to programming and other services.
g. Installation and service maintenance policies.
h. Instructions on how to use the service.
i. Channel positions of programming carried on the Cable System.
7. The costs associated with providing the annual notice shall be subject to the cost limitations of the 1984 Cable Act, or other applicable law.
Section 5.05.100 Extension of network and programming
1. Extension throughout service area. The Operator shall design and construct the cable communications system in such a manner as to pass by every single-family dwelling unit, multifamily dwelling unit, school, and public agency within the service area so long as it is financially and technically feasible. Service shall be extended to all properties where a minimum of ten (10) living units are occupied within a quarter linear mile of cable system. New construction shall be in accordance with an annual schedule accepted and approved by the City.
2. Non-discriminating service. Construction of the network shall be performed by the Operator in such a manner as to ensure that no group of potential subscribers is denied access to services because of the income level of the group or because of the relative cost of extending services into the particular area in which the group resides; provided however, that such extension may be denied based upon the density requirements stated above.
3. Service to public facilities. Upon request, the Operator shall provide one basic service outlet to all City buildings, fire houses, police stations, public or private schools, and libraries which are within the City and are passed by the Cable System. The Cable Service provided shall not be used for commercial purposes, and such outlets shall not be located in areas open to the public. The City shall take reasonable precautions to prevent any use of the Cable system in any manner that results in the inappropriate use thereof or any loss or damage to the Cable System. The City shall hold the Operator harmless from any and all liability or claims arising out of the provision and use of Cable Service required by this subsection. The Operator shall not be required to provide an outlet to such buildings where a non-standard installation is required, unless the City or building owner/occupant agrees to pay the incremental cost of any necessary Cable System extension and/or non-Standard Installation. An additional service outlet shall also be provided in each room or area where television reception is desired in any of the above-mentioned building, provided that the Operator shall be reimbursed its actual cost for labor and materials required in the installation of such service outlets which are additional to the main outlet, but no service or other charge will be made after installation.
4. Educational and governmental channels. The City shall have exclusive right to the use of dedicated channels for educational and governmental purposes, (the City Access Channels”). The Operator shall make available one channel to be used for educational and governmental cablecast programming. When first-run programming on the first City Access Channel occupies fifty percent of the hours between 11:00 a.m. and 11:00 p.m., for any twelve consecutive weeks, the City may request the use of one additional channel for the same purpose. The additional channel must maintain programming twenty-five percent (25%) of the hours between 11:00 a.m. and 11:00 p.m. for twelve consecutive weeks. If this level of programming is not maintained for any channel, that channel will return to the Operator for its use. The Operator also reserves the right to program the designated City Access Channel(2) during the hours not used by the City or other governmental entities. The channel(s) shall be shared with other municipalities receiving programming from the common headend receive site location. The City shall agree to indemnify, save and hold harmless the Operator from and against any liability resulting from the use of the aforementioned City Access Channel(s) by the City.
The City may require as part of a Franchise authorization that the Operator prospectively provide a “Capital Contribution,” paid annually during the remaining term of the Franchise, to be used specifically for educational and governmental access. The City shall give the Operator ninety (90) days notice of such a requirement. The amount of the Capital Contribution payable by the Operator to the City shall be designated in the Franchise. The City agrees that all amounts due to the City by the Operator as the Capital Contribution may be added to the price of cable services, prorated monthly, and collected from the Operator’s Subscribers as “external costs,” as such term is used in 47 C.F.R. 76.922. In addition, all amounts paid as the Capital Contribution may be separately stated on Subscriber’s bills as permitted in 47 C.F.R. 76.985. The Capital Contribution will be payable by Operator to the City after;
a. The approval of the City, if required to the inclusion of the Capital Contribution on Subscribers’ bills including any required approval pursuant to 47 C.F.R. 76.933;
b. Notice to Operator’s Subscribers of the inclusion; and
c. The collection of the Capital Contribution by the Operator from its subscribers. The “Capital Contributions” are not to be considered in the calculation of Franchise Fees pursuant to this Ordinance.
Section 5.05.110 Occupancy of street and public easements
1. Existing facilities. The Operator shall utilize existing poles, conduits, and other facilities whenever feasible and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public or private property until the written approval of the City is obtained.
2. Underground installation. The facilities of the Operator shall be installed underground to the fullest extent possible. In areas where either telephone or electric utility facilities are installed aerially at the time of construction of the Network the Operator may install its facilities aerially with the understanding that at such time as both telephone and electrical facilities are relocated underground, the Operator shall likewise place its facilities underground. Previously installed aerial cable shall be relocated with other utilities at the Operator’s cost when the other utilities convert from aerial to underground construction. Any streets or sidewalks damaged or disturbed in the construction or operation of Operator’s poles, cable and other installations shall be promptly repaired and restored by the Operator at its expense and to the reasonable satisfaction of the City.
3. Location and condition. The Operator shall locate all transmission lines, equipment, and structures so as to cause minimum interference with the rights and reasonable convenience of property owners. The Operator shall install and maintain its lines, equipment and structures in accordance with the requirements of the National Electrical Safety Code promulgated by the National Bureau of Standards and the National Electrical Code of the National Board of Fire Underwriters.
4. Excavation permits. The Operator shall not open or disturb the surface of any street, sidewalk, driveway, or public place for any purpose without first obtaining a permit of general applicability to do so from the City. In addition, where existing conduit or backyard easements are not available for underground installation, the Operator shall design the network in such a manner as to permit construction behind and parallel with street curbing, in parking strips, or under the sidewalks where available, with a minimum of street excavation.
5. Easements. Prior to the installation of any of Operator’s facilities in a parking strip or public utility easements by Operator, Operator shall provide advance written notification to any property owners on whose property the easement is located. Such advance notification shall be delivered at least two (2) days prior to installation of such facilities. Such notification shall set forth the date during which Operator may be installing facilities in the public utility easement, and shall provide a telephone number where property owners may call Operator pertaining to any questions or complaints concerning use of the public utility easement by Operator. Upon commencement of installation of facilities in a public utility easement, the Operator shall proceed diligently to complete that installation. No trenches or otherwise uncovered areas shall be left open longer than necessary to complete the installation.
6. Changes required by public improvements. The Operator shall at its expense, temporarily disconnect, relocate or remove from the street or other public place any property of the Operator when required by the City by reason of traffic conditions, public safety, street vacation, street construction, street repair, installation or repair of sewer drains, water pipes, or any other type of structure or improvement by public agencies. If the City elects to change the grade of any street or public way, or to vacate or otherwise alter the same, the Operator shall relocate its poles and other installations at Operator’s expense.
7. Protection of facilities. Nothing contained in this section shall relieve the City of any person, company or corporation from liability arising out of the failure to exercise reasonable care to avoid damaging the Operator’s facilities while performing work connected with grading, regrading, or changing the line of any street or public place or with the construction or reconstruction of any sewer or water system.
8. Requests for removal or change. The Operator shall, at the request of any person holding a building or moving permit, temporarily raise or lower its wires to permit the building or moving to proceed. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the action, and the Operator shall have the authority to require such payment in advance. The Operator shall be given no less than five (5) days written notice of any move contemplated to arrange for temporary wire changes.
9. Authority to trim trees. After receiving written consent from the City the Operator shall have the authority to trim trees, upon and overhanging streets, alleys, sidewalks, and other public places of the City so as to prevent the branches of such trees from coming into contact with the wires and cables of the Operator. Provided, however, that in the event of an emergency, no consent shall be necessary to remedy the emergency. The same requirements for notice that are specified for access to private property shall be required prior to trimming trees.
10. Restoration or reimbursements. In the event of disturbance of any street or private property by the Operator, the Operator shall, at its own expense and in a manner approved by the city or the owner, replace and restore such street or private property in as reasonable good a condition as before the work was done. All restoration work shall be guaranteed by the Operator for a period of one year to be free from material defects. In the event there is any problem with restoration work, the Operator shall, upon written notice from the City, repair the defect within fifteen (15) days (weather permitting) of receiving notice unless otherwise agreed upon by the City. In the event Operator fails to perform such replacement or restoration, the City shall have the right to do so at the sole expense of Operator.
11. Emergency removal of network. If in the case of fire or disaster in the City it shall become necessary in the reasonable judgement of the City to cut or move any of the wires, cables, amplifiers or other such appurtenances to the Network of the Operator, such cutting or moving may be completed after a reasonable attempt to contact the Operator has been made. Any repairs rendered necessary thereby shall be made by the Operator at its sole expense.
12. Alternate routing of network. In the event continued use of a street or other easement or right-of-way is denied to the Operator by the City, the Operator shall provide service to the effected subscribers over alternate routes within a reasonable period of time agreed upon by the City so long as it is financially and technically feasible to do so.
Section 5.05.120 Rights reserved to the City
1. Operator agrees to the City’s right. The City reserves such rights and powers, including the lawful exercise of police power, which under applicable Federal, State or City law or regulations, the City must reserve and maintain. The Operator agrees to comply with all rules and regulations now in effect or hereafter adopted by the City, the Federal Communications Commission, the State of Utah and the United States Government.
Section 5.05.130 Payments
1. Franchise fee. The Operator shall pay to the City on a quarterly basis, on or before April 30, July 30, October 31, and January 31 of each year, a percent of the total Gross Revenues (as defined in this Ordinance) of the Operator during the immediate past quarter together with a financial statement listing the gross receipts and revenues of the Operator during that quarter. The percent of total Gross Revenues shall equal the percent in the Franchise and shall be consistent with applicable law. Notwithstanding anything contained herein to the contrary and in the event that the City is authorized by federal law to either increase or decrease the maximum permissible franchise fee amount, then the City shall have the right to change the franchise fee amount, without the consent of the Operator, provided that the Operator has received at least ninety (90) days prior written notice from the City of such change.
2. Verification. All books and records showing the Gross Revenues of the Operator shall be open at all reasonable times to the inspection of the City or agent appointed by the City in order to insure compliance with the terms of this Ordinance and/or the Franchise.
3. Additional compensation. In any payment amount is not made on or before the dates specified, the Operator shall pay interest on the amount due at the prime rate as listed in the Wall Street Journal on the date that the payment was due, compounded daily, calculated from the date the payment was originally due until the date the City receives the payment. The acceptance of any payment by the City may not be construed as a release or as an accord and satisfaction of any claim the City may have for further and additional sums payable as a franchise fee under this ordinance or for the performance of any other obligation of the Operator.
4. Pass-through fees. Any Operator “Pass-through” or itemization of franchise fee costs on subscribers’ bills shall be in accordance with applicable law.
Section 5.05.140 Subscriber privacy
An Operator shall fully comply with any provisions regarding the privacy rights of Subscribers contained in federal, state, and local law.
Section 5.05.150 Acceptance of franchise
1. Effective date of franchise. A franchise, together with the rights, privileges and authority granted thereby, shall take effect and being forced immediately upon adoption of the franchise agreement by the City Council of the City, and compliance by the Operator with the following:
a. The Operator shall properly execute the franchise agreement.
b. The Operator shall establish the surety bond as required by this section if such bond is required.
c. The Operator shall file with the City a certificate of insurance as required by this section.
d. The Operator shall advise the City in writing of its local office and its address for mail and official notifications from the City.
2. Surety bond. The City may upon execution of the franchise agreement, require the Operator to provide an irrevocable, non-canceling surety bond to the sole benefit of the City in the amount of ten thousand dollars ($10,000.00). The surety bond shall be in a form approved by the City and shall be maintained throughout the term of the franchise. The surety company shall be authorized to transact surety business in the State of Utah. Multiple and partial drawings on the bond shall be permitted. The surety bond shall be established as security to the City for the faithful performance of the Operator of all the provisions of this Ordinance and compliance with all orders, permits, and directions of any agency of the City having jurisdiction over the Operator's acts or defaults under the franchise or any other provision of the City code. The bond shall also act as security to the City for the payment by the Operator of any claims, liens, and taxes due to the City that arise by reason of the construction, operation, or maintenance of the Network. No demands shall be made on the surety bond without providing the Operator opportunity to correct the default. Within thirty (30) days of notice that any amount has been demanded from the surety bond, the Operator shall restore the bond to the original amount.
3. Public liability insurance. Upon execution of the franchise agreement, the Operator shall provide proof of general comprehensive liability insurance coverage protecting the City against liability for loss or damage for personal injury, death, or property damage, occasioned by the operations of Operator under this ordinance in the amount of (a) $500,000.00 for bodily injury or death to any one person, within the limits, however, of $1,000,000.00 for bodily injury or death resulting from any one accident, (b) $500,000.00 for property damage resulting from any one accident, and (c) worker's compensation insurance coverage as may be required by the worker's compensation insurance and safety laws of the State of Utah and amendments thereto. The insurance policies referred to above shall contain an endorsement stating that the policies are extended to cover the liability assumed by the Operator under the terms of this ordinance and shall contain the following endorsements:
It is hereby understood and agreed that this policy may not be canceled nor the amount of coverage thereof reduced until thirty (30) days after receipt by Lindon City by registered mail of written notice of such intent to cancel or reduce the coverage.
4. Evidence of insurance filed with city. Certificates of insurance for all insurance policies shall be filed and maintained with the City during the term of the franchise or any renewal thereof. Certified copies of the insurance policies shall be provided to the City upon reasonable request.
5. Inducements–Not offered. The Operator, by acceptance of the franchise agreement, acknowledges that it has not been induced to accept the franchise by any understanding or promise or other statement, whether verbal or written, by or on behalf of the City concerning any term or condition of the franchise.
6. Operator accepts terms of the franchise. The Operator, by acceptance of the franchise agreement, acknowledges that it has thoroughly examined, is familiar with, and agrees to be bound by the terms of conditions of this ordinance.
Section 5.05.160 Termination of franchise
1. Termination of franchise. The Operator may, at its option, terminate the franchise and surrender all rights and privileges associated with the franchise upon filing with the City a written notification of its intent to terminate the franchise and surrender all rights thereunder. Any such termination shall not become effective for a period of ninety (90) days from the date on which the Operator files notifications with the City. Operator shall remain liable for any breach of the franchise notwithstanding said termination.
2. Termination by city. A franchise may be terminated by the City for any material violation of the franchise but only after a hearing before the City Council. Prior to setting a termination hearing, the Operator shall be given at least sixty (60) days notice by certified mail that the Operator has violated a material provision of the franchise and that the City Council will consider setting a termination hearing. The notice shall include a description of the violation which is grounds for conducting a termination hearing. In the event that the Operator has not cured the matter which constitutes a material violation of the franchise within the sixty (60) days notice period, or has not commenced, in the opinion of the City, reasonable and diligent efforts to cure the matter, the City Council may set a public hearing to determine whether or not the franchise should be terminated. The City shall provide thirty (30) days written notice to the Operator of the date and time of the termination hearing. The hearing shall be a full public proceeding affording due process. The City Council shall consider the evidence and determine whether or not the franchise should be terminated. The Operator may appeal such determination to an appropriate court, which shall have the power to review the decision of the City de novo. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the City.
3. Ownership of network. Upon termination of a franchise, the Operator shall retain ownership of the network and shall be entitled at its option and expense to transfer or abandon the network. Any transfer of franchise and any transfer of ownership of the network shall meet the conditions of section 4, paragraph D, the Cable Act, and other applicable law. Should Operator elect to remove the network, and/or any part thereof, upon termination of a franchise, Operator shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to Operator's removal of the network, without affecting any electrical or telephone cables, wires, or attachments, and poles after removal. The liability insurance and indemnity as provided herein shall continue in full force and effect during the period of removal and until substantial compliance by Operator with the terms and conditions of this subsection. In the event of a failure by Operator to complete any work required by this subsection or any other work required by this ordinance, the City may cause such work to be done and Operator shall reimburse the City the reasonable costs thereof within ninety (90) days after receipt of an itemized list of such costs.
Section 5.05.170 Liability and indemnification
1. Indemnification of City in franchise operation. The Operator shall fully indemnify, defend and hold harmless the City, its officers, boards, commissions, elected officials, agents, attorneys, representative, servants and employees against any and all costs, damages, expenses, claims, suits, actions, liabilities, and judgments for damages, including but not limited to, expenses for legal fees, whether suit be brought or not, whether meritorious or frivolous, and disbursements and liabilities incurred by the City and arising out of, directly or indirectly, or related to, the operation of the Operator's cable television system including but not by way of limitation in connection with the following:
a. Damage to persons or property, in any way arising out of or through the acts or omissions of the Operator, its servants, officials, agents, attorneys, representatives, or employees or to which the Operator's negligence or that of its servants, agents, officials, attorneys, representative, or employees shall in any way contribute;
b. Request for relief in connection with any programming carried on the operator's cable system arising out of any claim for invasion of the right of privacy; for defamation of any person, firm or corporation; for the infringement or violation of any copyright, trademark, trade name, service mark or patent; or of any other right of any person, firm, or corporation;
c. Any and all claims arising out of the Operator's failure to comply with the provisions of this Franchise ordinance or any Federal, State, or local law, ordinance, or regulation applicable to the Operator of the Network.
2. Defense of the City. If suit for which the Operator has agreed to indemnify the city as set forth in the preceding subsection is brought or threatened against the City, either independently or jointly with the operator, or with any other person or municipality; the Operator, upon timely written notice given by the City, shall defend the City at the cost of the Operator. No right of indemnification shall be effective until such notice and a copy of the suit or other action for which indemnification is sought is provided to the Operator. If final judgment is obtained against the City either independently or jointly with the Operator or any of the defendants, the Operator shall indemnify the City and pay such judgment with all costs and satisfy and discharge the same as against the City in accordance with this section.
3. Cooperation in defense of City. In the event that the City elects to invoke its right of indemnification as set forth in this Ordinance, the City will cooperate with the reasonable requests of Operator in defending the City against any and all claims for which indemnification is sought. The Operator shall be subrogated to all rights of the City and, in defending the City, shall be entitled to assert any defense to any third-party claim which the City would be entitled to assert. The City may, in its sole discretion, elect to conduct its own defense at its own expense by giving the Operator written notice of the City's intent to provide its own defense and, upon such election, the Operator shall have no further duty to indemnify the City for any costs or liabilities with respect to such claims.
4. Governmental immunity. The City is in no manner or means waiving any governmental immunity it may enjoy or any immunity for its agents, officials, servants, attorneys, representatives, and/or employees.
5. Notification of settlements. The Operator shall make no settlement in any matter identified above without the City's written consent which shall not be unreasonably withheld. Failure to inform the City of settlement shall constitute a breach of this Franchise ordinance and the city may seek any redress available to it against the Operator whether set forth in this Franchise ordinance or under any other municipal, state or federal laws, or common law. In the event that the City fails to accept any bonafide settlement offer which the Operator is willing to accept and pay as full settlement of any claim or claims for which it is required to indemnify the City, the Operator's indemnification liability to the City with respect to said claim or claims under this Ordinance shall be limited to the terms of the settlement offer and the Operator shall be excused from any further indemnification to, or incurring any additional costs on behalf of, the City with respect to said claim or claims.
6. Additional rights. All rights of the City pursuant to indemnification, insurance, surety bond, or performance bonds, as provided for by this Franchise ordinance, are in addition to all other rights the City may have under this Franchise Ordinance or any other Ordinance, rule, regulation, or law.
7. Exercise of rights. The City's or the Operator's exercise of or failure to exercise any rights pursuant to any section of this Franchise Ordinance shall not affect in any way the right of the City or the Operator subsequently to exercise any such rights or any other right of the City or the Operator under this Franchise Ordinance or any other ordinance, rule, regulation, or law.
8. Reasonable indemnification. It is the purpose of this section to provide reasonable indemnification to the City under the terms and conditions expressed and, in the event of a dispute, this section shall be construed (to the greatest extent permitted by law) to provide for the indemnification of the City by the Operator in accordance with its terms.
9. Validity of section. The provisions of this section shall not be dependent or conditioned upon the validity of this Franchise Ordinance or the validity of any of the procedures or agreements involved in the renewal of the franchise, but shall be and remain a binding right and obligation of the City and the Operator even if part or all of this Franchise Ordinance, or the grant or renewal of the franchise, is declared null and void in a legal or administrative proceeding. It is expressly the intent of the Operator and the City that the provisions of this section survive any such declaration and shall be a binding obligation of and inure to the benefit of the Operator and the City and their respective successors and assigns (if any) with respect to any claims arising out of or related to, directly or indirectly, the operation of the cable system.
10. An Operator shall not be held in default under, or in noncompliance with, the provisions of the Ordinance and/or Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of Operator to anticipate and control. This provision includes work delays caused by waiting for utility providers to service or monitor their utility poles to which the Operator’s Cable System is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary.
11. It is not the City’s intention to subject an Operator to penalties, fines, forfeitures or revocation of a Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on the Subscribers within the Service Area, or where strict performance would result in practical difficulties and hardship to the Operator which outweigh the benefit to be derived by the City and/or Subscribers.
12. If any section, subsection, sentence, clause, phrase, or word of this ordinance is for any reason held invalid by the FCC or unconstitutional by any court or competent jurisdiction, such section, subsection, sentence, clause, phrase, or word shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof or of this Ordinance. The Operator shall not be bound by the provisions of any ordinances which are inconsistent with the terms of this Franchise Ordinance.
(Ord. 2002-13, Repealed and Replaced, 06/04/2002; Prev. Ord. 14-94, 06/07/1994)
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