CHAPTER 13.08. - TELECOMMUNICATIONS; USE OF RIGHTS-OF-WAY; FRANCHISE

Sec. 13.08.010. - Definitions.#

For the purposes of this franchise, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.

Affiliate means the entity which owns or controls, is owned or controlled by, or is under common ownership with the franchisee.

City means the City of Kamas, Utah.

Communication(s) service shall mean any telecommunications services, telecommunications capacity, or dark fiber, provided by the franchisee using its communication system or facilities, either directly or as a carrier for its subsidiaries, affiliates, or any other person engaged in communication service, including but not limited to, the transmission of voice, data, or other electronic information, facsimile reproduction, burglar alarm monitoring, meter reading, and home shopping, or other subsequently developed technology that carries an electronic signal over fiber optic cable or copper cable. Communication service shall also include non-switched, dedicated, and private line, high capacity fiber optic transmission services to firms, businesses, or institutions within the city.

Communication system or facilities shall mean the franchisee's fiber optic and/or copper cable system constructed and operated within the city's public ways and shall include all cables, wires, fibers, conduits, ducts, pedestals, and any associated converter, equipment, or other facilities within the city's public ways designed and constructed for the purpose of providing communication service.

FCC means the Federal Communications Commission, or any successor governmental entity hereto.

Franchise shall mean the initial authorization, or renewal thereof granted by the city, through this ordinance or subsequently adopted ordinance, which authorizes construction and operation of the franchisee's communication system and associated facilities for the purpose of offering communications service.

Franchisee means All West Communications, Inc., a Utah corporation, or the lawful successor, transferee, assignee, or affiliate thereof.

Person means an individual, partnership association, joint stock company, trust, corporation, or governmental entity.

Public way shall mean the surface of and any space above or below any public street, highway, freeway, bridge, path, alley, court, boulevard, sidewalk, parkway, lane, drive, circle, or any other public right-of-way including, but not limited to, public utility easements, utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon, now or hereafter held by the city in the service area which shall entitle the city and the franchisee the use thereof for the purpose of installing, operating, repairing, and maintaining the communications system. Public way shall also mean any easement now or hereafter held by the city within the service area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way which within their proper use and meaning, entitle the city and the franchisee the use thereof for the purposes of installing or transmitting the franchisee's communications service over wires, cables, conductors, amplifiers, appliances, attachments, and other property as may be ordinarily and necessarily pertinent to the communications system.

Service area means the present municipal boundaries of the city and shall include any additions thereto by annexation or other legal means.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.020. - Authority granted.#

The city hereby grants to the franchisee its heirs, successors, legal representatives, affiliates and assigns, subject to the terms and conditions hereinafter set forth, the right, privilege and authority to utilize the public ways of the city for construction and operation of the franchisee's communications system and to acquire, construct, operate, maintain, replace, use, install, remove, repair, reconstruct, inspect, sell, lease, transfer, or to otherwise utilize in any lawful manner, all necessary equipment and facilities thereto for the franchisee's communications system, and to provide communications service.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.030. - Construction permits required.#

1.

Prior to site specific location and installation of any portion of its communications system within a public way, the franchisee shall apply for and obtain a construction permit and pay all fees pursuant to the ordinances and resolutions of the city presently existing or as amended from time to time. All other codes and ordinances of the franchising authority that pertain to such construction shall be complied with.

2.

Unless otherwise provided in said permit, the franchisee shall give the city at least 48 hours' notice of the franchisee's intent to commence work in the public ways. The franchisee shall file plans or maps with the city showing the proposed location of its communication facilities and pay all duly established permit and inspection fees associated with the processing of the permit. In no case shall any work commence within any public way without said permit except as otherwise provided in this franchise.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.040. - Grant limited to occupation.#

Nothing contained herein shall be construed to grant or convey any right, title, or interest in the public ways of the city to the franchisee nor shall anything contained herein constitute a warranty of title.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.050. - Term of franchise.#

The first term of this franchise shall be for a period of 30 years from the date of acceptance as set forth herein, and will continue thereafter on a year to year basis unless either party provides written notice to the other party 120 days notice of its intent to renegotiate the terms and conditions of this franchise. At the end of that term, additional terms and extensions will be negotiated upon terms and conditions deemed reasonable to both the city and the franchisee.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.060. - Nonexclusive grant.#

This franchise shall not in any manner prevent the city from entering into other similar agreements or granting other or further franchises in, under, on, across, over, through, along or below any of said public ways of the city. However, the city shall not permit any such future franchisee to physically interfere with the franchisee's communication facilities. In the event that such physical interference or disruption occurs, the city engineer may assist the franchisee and such subsequent franchisee in resolving the dispute. Further, this franchise shall in no way prevent or prohibit the city from using any of its public ways or affect its jurisdiction over them or any part of them, and the city shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of the same as the city may deem fit, including the dedication, establishment, maintenance, and improvement of all new public ways all in compliance with this franchise.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.070. - Maps and records.#

After construction is complete, the franchisee shall provide the city with accurate copies of as-built plans and maps in a form and content prescribed by the city engineer. These plans and maps shall be provided at no cost to the city and shall include hard copies and digital copies in a format specified by the city engineer.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.080. - Work in public ways.#

1.

During any period of relocation, construction, or maintenance, all surface structures, if any, shall be erected and used in such places and positions within said public ways and other public properties so as to interfere as little as possible with the free passage of traffic and the free use of adjoining property.

The franchisee shall, at all times, post and maintain proper barricades and comply with all applicable safety regulations during such period of construction as required by the ordinances of the city or the laws of the State of Utah.

2.

The franchisee shall cooperate with the city and all other persons with authority from the city to occupy and use the public ways of the city in coordinating construction activities and joint trenching projects. By March 1st of each calendar year, the franchisee shall provide the city with a schedule of its proposed construction activities in, around, or that may affect the public ways of the city. The franchisee shall also meet with the city and other grantees, franchisees, permittees, and other users of the public ways of the city annually or as determined by the city to schedule and coordinate construction activities.

The public works director shall coordinate all construction locations, activities and schedules to minimize public inconvenience, disruption, or damage to the public ways of the city.

3.

If either the city or the franchisee shall at any time after the installation of the facilities plan to make excavations in an area covered by this franchise and as described in this section, the party planning such excavation shall afford the other upon receipt of written request to do so an opportunity to share such an excavation provided that: (1) such joint use shall not unreasonably delay the work of the party causing the excavation to be made or unreasonably increase its costs; (2) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and (3) either party may deny such request for safety reasons or if their respective uses of the trench are incompatible.

4.

If the city should at any time after the installation of the facilities need the facilities moved for purposes of the city constructing, installing, maintaining, repairing or upgrading any public infrastructure of the city the franchisee shall bear all cost of the removal and replacement of the facilities. Except in cases of emergencies the city shall give the franchisee 45 days' notice of the city's need to have the facilities moved.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.090. - Restoration after construction.#

The franchisee shall, after the installation, construction, relocation, maintenance, removal or repair of its communication facilities within the public ways restore the surface of said public ways and any other city-owned property that may be disturbed by the work to at least the same condition the public way or city-owned property was in immediately prior to any such installation, construction, relocation, maintenance or repair, reasonable wear and tear excepted. The franchisee agrees to promptly complete all restoration work and to promptly repair any damage caused by such work to the public ways or other affected area at its sole cost and expense according to the time and terms specified in the construction permit issued by the city in accordance with the applicable ordinances of the city.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.100. - Emergency work permit waiver.#

In the event of any emergency in which any of the franchisees' communication facilities located in, above, or under any public way break, are damaged, or if the franchisee's construction area is otherwise in such a condition as to immediately endanger the property, life, health, or safety of any individual, the franchisee shall immediately take proper emergency measures to repair its facilities, to cure or remedy the dangerous conditions for the protection of property, life, health, or safety of individuals without first applying for and obtaining a permit as required by this franchise. However, this shall not relieve the franchisee from the requirement of notifying the city of the emergency work and obtaining any permits necessary for this purpose after the emergency work. The franchisee shall notify the city by telephone immediately upon learning of the emergency and shall apply for all required permits not later than the second succeeding day during which the City Hall is open for business.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.110. - Dangerous conditions.#

Whenever construction, installation or excavation of the communication facilities authorized by this franchise has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining public way, street, or public place, or endangers the public street, utilities or city-owned property, the city engineer may reasonably request the franchisee to take action to protect the public, adjacent public places, city-owned property, streets, utilities and public ways. Such action may include compliance within a prescribed time. In the event that the franchisee fails or refuses to promptly take the actions directed by the city or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, the city may enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, utilities, public ways to maintain the lateral support thereof or actions regarded as necessary safety precautions and the franchisee shall be liable to the city for the reasonable costs thereof.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.120. - Nonliability of city for act of franchisee.#

The city shall not at any time become liable or responsible to any person, firm, corporation, or individual for any damage, injury, including loss of life or loss by reason of the activities of franchisee under this franchise, and franchisee hereby indemnifies the city and holds it harmless against all such liabilities, loss, cost, damage, or expense which may be incurred by the city by reason of the exercise or arising out of the implementations of this franchise.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.130. - Insurance.#

The franchisee shall procure and maintain insurance against claims for injuries to persons or damages to the property which may arise from, or in connection with the exercise of the rights, privileges, and authority granted hereunder to the franchisee, its agents, representatives, or employees. The franchisee shall provide to the city for its inspection an insurance certificate naming the city as an additional insured as its respective interests may appear prior to the commencement of any work or installation of any facilities pursuant to this franchise. Such insurance certificate shall evidence: 1.

Comprehensive general liability insurance written on an occurrence basis, including contractual liability coverage with limits inclusive of umbrella or excess liability coverage of not less than: (1) $2,000,000.00 for bodily injury or death to each person; and (2) $3,000,000.00 for property damages resulting from any one accident.

2.

Automobile liability for owned, non-owned, and hired vehicles with a limit inclusive of umbrella or excess liability coverage of $300,000.00 for each person and $500,000.00 for each accident.

3.

Workers' compensation within statutory limits.

The liability insurance policies required by this section shall be maintained by the franchisee throughout the term of this franchise and such other period of time during which the franchisee is operating without a franchise hereunder, or is engaged in the removal of its communication system. Payment of deductibles and self-insured retentions shall be the sole responsibility of the franchisee. The insurance certificate required by this section shall contain a clause stating that the coverage shall apply separately to each insured against whom a claim is made or suit is brought except with respect to the limits of the insurer's liability. The franchisee's insurance shall be primary insurance with respect to the city. any insurance maintained by the city, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the franchisee's insurance and shall not contribute with it.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.140. - Abandonment and removal of the franchisee's communication facilities.#

Upon the expiration or termination of the rights granted under this franchise, the franchisee shall either, at franchisee's sole option, remove all of its communication facilities from the public ways of the city within 90 days or abandon the facilities in place. Upon permanent abandonment and franchisee's agreements to transfer ownership of the communication facilities to the city, the franchisee shall submit to the city a proposal and instruments for transferring ownership to the city. Any such facilities which are not permitted to be abandoned in place which are not removed within one year of receipt of said notice shall automatically become the property of the city.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.150. - Modifications.#

The city and the franchisee hereby reserve the right to alter, amend, or modify the terms and conditions of this franchise upon the written agreement of both parties to such alteration, amendment or modification. Said modifications shall be approved by the city by ordinance and accepted by the franchisee consistent with this section.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.160. - Forfeiture and revocation.#

1.

This franchise may be terminated for failure by franchisee to comply with the material provisions hereof and other provisions of the city ordinances.

2.

If the city has reason to believe that the franchisee is in violation of this franchise or other provisions of the city ordinances, the following procedures shall be followed by the city:

a.

The city shall provide the franchisee with a detailed, written notice by certified mail detailing the violation, the steps necessary to cure such violation, and the time period within which the violation must be cured. Within 30 days thereafter, franchisee shall respond demonstrating that no violation occurred, that any problem has been corrected, or with a proposal to correct the problem within a specified period of time.

b.

Franchisee may request an extension of time to cure an alleged violation if construction is suspended or delayed by the city or where unusual weather, natural consequences, extraordinary acts of third parties, or other circumstances which are reasonably beyond the control of the franchisee delay progress, provided that the franchisee has not, through its own actions or inactions, contributed to the delay.

c.

If said response is not satisfactory to the city, the city may declare the franchisee to be in default with written notice by certified mail to franchisee. Within ten business days after notice to franchisee, franchisee may deliver to the city a request for a hearing before the city council. If no such request is received, the city may declare the franchise terminated for cause.

d.

If franchisee files a timely written request for hearing, such hearing shall be held within 30 days after the city's receipt of the request therefor. Such hearing shall be open to the public and franchisee and other interested parties may offer written and/or oral evidence explaining or mitigating such alleged noncompliance. Within ten days after the hearing, the city council on the basis of the record will make the determination as to whether there is cause for termination and whether the franchise will be terminated. The city council may, in its sole discretion, fix an additional time period to cure violations. If the deficiency has not been cured at the expiration of any additional time period, or if the city council does not grant any additional period, the city council may, by resolution, declare the franchise to be terminated.

e.

If franchisee appeals revocation and termination, such revocation may be held in abeyance pending judicial review by a court of competent jurisdiction provided the franchisee is otherwise in compliance with this franchise.

3.

Franchisee shall not be deemed to be in default failure, violation or noncompliance with any provision of this franchise where performance was rendered impossible due to an act of God, fire, flood, storm, or other element or casualty, theft, war, disaster, strike, lockout, boycott, prevailing war, or war preparation, or bona fide legal proceedings, beyond the control of the franchisee.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.170. - City ordinances and regulations.#

Nothing herein shall be deemed to direct or restrict the city's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this franchise, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public and including adopting a municipal telecommunication license tax under U.C.A. § 10-1-401 et seq. The city shall have the authority at all times to control by appropriate regulations the locations, elevation, manner or construction and maintenance of facilities by the franchisee and the franchisee shall promptly conform with all such regulations unless compliance would cause the franchisee to violate other requirements of the law.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.180. - Survival.#

All of the provisions, conditions and requirements of this franchise shall be in addition to any and all other obligations and liabilities the franchisee may have to the city at common law by statute or by contract. The provisions, conditions and requirements of KMC 13.08.080, Work in Public Ways; KMC 13.08.090, Restoration after Construction; KMC 13.08.110, Dangerous Conditions; KMC 13.08.120, Nonliability of City for Acts of Franchisee; KMC 13.08.130, Insurance; KMC 13.08.140, Abandonment and Removal of the Franchisee's Communication Facilities; shall survive the expiration or termination of this franchise and any renewals or extensions thereof and remain effective until such time as the franchisee removes its communication facilities from the public ways, transfers ownership of said facilities to a third party, or abandons said system in place as provided herein. All of the provisions, conditions, regulations and requirements contained in this franchise shall further be binding upon the heirs, successors, executors, administrators, legal representatives, and assigns of the franchisee and all privileges as well as all obligations and liabilities of the franchisee shall inure to its heirs, successors and assigns equally as if they were specifically mentioned wherever the franchisee is named herein.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.190. - Severability.#

If any section, sentence, clause or phrase of this franchise shall be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this franchise.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.200. - Assignment.#

This agreement may not be assigned or transferred without prior written notice to the city except that the franchisee may freely assign this franchise without notice in whole or in part to a parent, subsidiary, or affiliated corporation or as part of any corporate financing, reorganization, or refinancing. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such notice shall not be required unless and until the secured party elects to realize upon the collateral.

Franchisee may, without the prior written notice to the city: (1) lease the facilities or any portion thereof to another; (2) grant an indefeasible right of user interest in the facilities or any portion thereof to another; or (3) offer to provide capacity or band width in its facilities to another, provided that franchisee at all times retains exclusive control over such facilities and remains responsible for locating, servicing, repairing, relocating, or removing its facilities pursuant to the terms and conditions of this franchise.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.210. - Notice.#

Any notice or information required or permitted to be given to the parties under this franchise may be sent to the following addresses unless otherwise specified: City:

Kamas City

170 N. Main

Kamas, Utah 84036

Franchisee:

All West Communications, Inc.

50 West 100 North

Kamas, Utah 84036 Attn: CEO

Notice shall be deemed given upon receipt in the case of personal delivery three days after deposit in the U.S. mail in the case of regular mail, or next day in the case of overnight delivery.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.220. - Entire franchise.#

This franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon approval and acceptance of this franchise. Provided further that the city and the franchisee reserve all rights they may have under the law to the maximum extent possible and neither the city nor the franchisee shall be deemed to have waived any rights they may have or may acquire in the future by entering into this franchise.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.230. - Attorney's fees.#

If any suit or other action is instituted in connection with any controversy arising under this franchise, the prevailing party shall be entitled to recover all of its costs and expenses including such sum as the court may judge reasonable for attorney's fees.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.240. - Governing law/venue.#

This franchise shall be governed by and construed in accordance with the laws of the State of Utah. The venue and jurisdiction over any dispute related to this franchise shall be with the Utah State Court in the county in which the city is located, or with respect to any federal question, with the United States District Court for the District of Utah in Salt Lake City.

(Ord. 2015-04, 11/10/2015)

Sec. 13.08.250. - Acceptance.#

Within 60 days after the passage and approval of this ordinance, this franchise shall be accepted by the franchisee by its filing with the city clerk an unconditional written acceptance thereof. Failure of the franchisee to so accept this franchise within said period of time shall be deemed a rejection thereof and the rights and privileges herein granted shall after the expiration of the 60-day period, absolutely cease unless the time period is extended by ordinance duly passed for that purpose.

(Ord. 2015-04, 11/10/2015)