Chapter 12.40 FRANCHISE – TELECOMMUNICATIONS

For purposes of this chapter the following terms, phrases, words, and their derivatives shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended. Words used in the present tense may include the future tense, words in the single number may include the plural number, words in the plural number may include the singular. The words “shall” and “will” are mandatory, and “may” is permissive. Words not defined shall be given their common and ordinary meaning.

“Application” means the process by which a provider submits a request and indicates a desire to be granted a franchise to utilize the rights-of-way of all, or a part, of the city. An application includes all written documentation, verbal statements and representations, in whatever form or forum, made by a provider to the city concerning: the construction of a telecommunications system over, under, on or through the rights-of-way; the telecommunications services proposed to be provided in the city by a provider; and any other matter pertaining to a proposed system or service.

“City” means Naples City, Utah.

“Completion date” means the date that a provider begins providing services to customers in the city.

“Construction costs” means all costs of constructing a system, including make ready costs, other than engineering fees, attorneys or accountants fees, or other consulting fees.

“Control” or “controlling interest” means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the system or of a provider. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person, or group of persons acting in concert, of more than 25 percent of any provider (which person or group of persons is hereinafter referred to as “controlling person”). “Control” or “controlling interest” as used herein may be held simultaneously by more than one person or group of persons.

“FCC” means the Federal Communications Commission, or any successor thereto.

“Franchise” means the rights and obligation extended by the city to a provider to own, lease, construct, maintain, use or operate a system in the rights-of-way within the boundaries of the city. Any such authorization, in whatever form granted, shall not mean or include: (a) any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city; (b) any other permit, agreement or authorization required in connection with operations on rights-of-way or public property including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the city or a private entity, or for excavating or performing other work in or along the rights-of-way.

“Franchise agreement” means a contract entered into in accordance with the provisions of this chapter between the city and a franchisee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.

“Gross revenue” includes all revenues of a provider that may be included as gross revenue within the meaning of Title 11, Chapter 26, Utah Code Annotated 1953, as amended, and Title 10, Chapter 1, Section 401 et seq, Utah Code Annotated 1953.

“Infrastructure provider” means a person providing to another, for the purpose of providing telecommunication services to customers, all or part of the necessary system which uses the rights-of-way.

“Open video service” means any video programming services provided to any person through the use of rights-of-way, by a provider that is certified by the FCC to operate an open video system pursuant to Section 651 et seq. of the Telecommunications Act (to be codified at 47 U.S.C. Title VI, Part V), regardless of the system used.

“Open video system” means the system of cables, wires, lines, towers, wave guides, optic fiber, microwave, laser beams, and any associated converters, equipment, or facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing open video services to or from subscribers or locations within the city.

“Operator” means any person who provides service over a telecommunications system and directly or through one or more persons owns a controlling interest in such system, or who otherwise controls or is responsible for the operation of such a system.

“Ordinance” or “telecommunications ordinance” means this chapter concerning the granting of franchises in and by the city for the construction, ownership, operation, use or maintenance of a telecommunications system.

“Person” includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

“Personal wireless services facilities” has the same meaning as provided in Section 704 of the Act (47 U.S.C. Section 332(c)(7)(C)), which includes what is commonly known as cellular and PCS services that do not install any system or portion of a system in the rights-of-way.

“Provider” means an operator, infrastructure provider, resaler, or system lessee.

“PSC” means the Public Service Commission, or any successor hereto.

“Resaler” refers to any person that provides local exchange service over a system for which a separate charge is made, where that person does not own or lease the underlying system used for the transmission.

“Rights-of-way” means the surface of and the space above and below any public street, sidewalk, alley, or other public way of any type whatsoever, now or hereafter existing as such within the city, but shall not include city electric utility easements and rights-of-way until a separate joint facilities (pole attachment) agreement is entered into by the city and provider. City may have easements and rights-of-way that may be prescriptive in nature. Nothing in this chapter or in any franchise agreement shall “surcharge the easement or right-of-way,” or be implied to in any way grant or extend the permission or right to use an easement or right-of-way beyond those rights the city has acquired. Easements and rights-of-way may also be subject to third party prior or after-acquired interests and each franchise applicant and provider shall be responsible to examine each individual easement and right-of-way before using the easement or right-of-way. The city shall have no duty or obligation to defend any interest in any easement or right-of-way and providers shall remain solely responsible to make any necessary legal arrangements required as a result of other persons claiming an interest in the city easement or right-of-way.

“Signal” means any transmission or reception of electronic, electrical, light or laser or radio frequency energy or optical information in either analog or digital format.

“System lessee” refers to any person that leases a system or a specific portion of a system to provide services.

“Telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing (e.g., data, video, and voice), without change in the form or content of the information sent and received.

“Telecommunications system” or “system” means all conduits, manholes, poles, antennas, transceivers, amplifiers and all other electronic devices, equipment, wire and appurtenances owned, leased, or used by a provider, located in the rights-of-way and utilized in the provision of services, including fully digital or analog, voice, data and video imaging and other enhanced telecommunications services. Telecommunications system or systems also includes an open video system.

“Telecommunications service(s)” or “services” means any telecommunications services provided by a provider within the city that the provider is authorized to provide under federal, state and local law, and any equipment and/or facilities required for and integrated with the services provided within the city, except that these terms do not include “cable service” as defined in the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C. Section 521 et seq.), and the Telecommunications Act of 1996. Telecommunications service or services also includes an open video system.

“Wire” means fiber optic telecommunications cable, wire, coaxial cable, or other transmission medium that may be used in lieu thereof for similar purposes. [Ord. 09-117 § 3.16.010, 2009.]

12.40.020 Declaration of finding and intent.

(1) Findings Regarding Rights-of-Way. The city council of Naples City, Utah, finds that the rights-of-way within Naples City (hereinafter “city”): (a) are critical to the travel and transport of persons and property in the business and social life of the city; (b) are intended for public uses and must be managed and controlled consistent with that intent; (c) can be partially occupied by the facilities of utilities and other public service entities delivering utility and public services rendered for profit, to the enhancement of the health, welfare, and general economic well-being of the city and its citizens; and (d) are a unique and physically limited resource requiring proper management to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience to and negative effects upon the public from such facilities’ construction, placement, relocation, and maintenance in the rights-of-way.

(2) Finding Regarding Compensation. The city finds that the city should receive fair and reasonable compensation for use of the rights-of-way.

(3) Finding Regarding Local Concern. The city finds that while telecommunications systems are in part an extension of interstate commerce, their operations also involve rights-of-way, municipal franchising, and vital business and community service, which are of local concern.

(4) Finding Regarding Promotion of Telecommunications Services. The city finds that it is in the best interests of its taxpayers and citizens to promote the rapid development of telecommunications services, on a nondiscriminatory basis, responsive to community and public interest, and to assure availability for municipal, educational and community services.

(5) Findings Regarding Franchise Standards. The city finds that it is in the interests of the public to franchise and to establish standards for franchising providers in a manner that:

(a) Fairly and reasonably compensates the city on a competitively neutral and nondiscriminatory basis as provided herein;

(b) Encourages competition by establishing terms and conditions under which providers may use the rights-of-way to serve the public;

(c) Fully protects the public interests and the city from any harm that may flow from such commercial use of rights-of-way;

(d) Protects the police powers and rights-of-way management authority of the city, in a manner consistent with federal and state law;

(e) Otherwise protects the public interests in the development and use of the city infrastructure;

(f) Protects the public’s investment in improvements in the rights-of-way; and

(g) Ensures that no barriers to entry of telecommunications providers are created and that such franchising is accomplished in a manner that does not prohibit or have the effect of prohibiting telecommunication services, within the meaning of the Telecommunications Act of 1996 (“Act”) (United States P.L. No. 104-104).

(6) Power to Manage Rights-of-Way. The city adopts this chapter pursuant to its power to manage the rights-of-way, pursuant to common law, the Utah Constitution and statutory authority, and receive fair and reasonable compensation for the use of rights-of-way by providers as expressly set forth by Section 253 of the Act. [Ord. 09-117 § 3.16.020, 2009.]

12.40.030 Scope of chapter.

This chapter shall provide the basic local scheme for providers of telecommunications services and systems that require the use of the rights-of-way, including providers of both the system and service, those providers of the system only, and those providers who do not build the system but who only provide services. This chapter shall apply to all future providers and to all providers in the city prior to the effective date of the ordinance codified in this chapter, whether operating with or without a franchise as set forth in Section 5 of Ordinance 98-80. [Ord. 09-117 § 3.16.030, 2009.]

12.40.040 Excluded activity.

(1) Cable TV. This chapter shall not apply to cable television operators otherwise regulated by Chapter 12.45 NCC, Franchise – Cable Communications.

(2) Wireless Services. This chapter shall not apply to personal wireless service facilities.

(3) Provisions Applicable to Excluded Providers. Providers excused by other law that prohibits the city from requiring a franchise shall not be required to obtain a franchise, but all of the requirements imposed by this chapter through the exercise of the city’s police power and not preempted by other law shall be applicable.

(4) Interconnection of Facilities Owned by Single Business. The requirement of obtaining a telecommunications franchise shall not apply to a business that only desires to cross or use city rights-of-way to interconnect its own facilities, wholly located within city limits, if the mayor finds:

(a) That the business will use city rights-of-way only to interconnect its own facilities;

(b) The entity agrees to enter into a written license agreement with the city wherein the entity agrees to:

(i) Assume all costs (including city oversight and inspection costs) associated with construction and maintenance of the telecommunications facilities, including all costs associated with the complete restoration of the city right-of-way after construction (or removal) of the telecommunications facilities in the city right-of-way;

(ii) Assume all liability arising from the construction, installation, maintenance, repair, use, operation, and/or removal of the telecommunication facilities and indemnify, defend and hold city harmless from any such liability; and

(iii) Pay a reasonable license fee for use of right-of-way based on comparable revenues received by the city from its telecommunications franchisees.

(5) Nothing herein shall give the entity the right to use city facilities or poles, the use of which shall be governed by the license agreement. [Ord. 09-117 § 3.16.040, 2009.]

12.40.050 Franchise required.

(1) Nonexclusive Franchise. The city is empowered and authorized to issue nonexclusive franchises governing the installation, construction, and maintenance of systems in the city’s rights-of-way, in accordance with the provisions of this chapter. The franchise is granted through a franchise agreement entered into between the city and provider.

(2) Every provider must obtain a franchise. Except to the extent preempted by federal or state law, as ultimately interpreted by a court of competent jurisdiction, including any appeals, every provider must obtain a franchise prior to constructing a telecommunications system or providing telecommunications services using the rights-of-way, and every provider must obtain a franchise before constructing an open video system or providing open video services via an open video system. Any open video system or service shall be subject to the customer service and consumer protection provisions applicable to the cable TV companies to the extent the city is not preempted or permitted as ultimately interpreted by a court of competent jurisdiction, including any appeals. The fact that particular telecommunications systems may be used for multiple purposes does not obviate the need to obtain a franchise for other purposes. By way of illustration and not limitation, a cable operator of a cable system must obtain a cable franchise, and, should it intend to provide telecommunications services over the same system, must also obtain a telecommunications franchise.

(3) Nature of Grant. A franchise shall not convey title, equitable or legal, in the rights-of-way. A franchise is only the right to occupy rights-of-way on a nonexclusive basis for the limited purposes and for the limited period stated in the franchise; the right may not be subdivided, assigned, or subleased. A franchise does not excuse a provider from obtaining appropriate access or pole attachment agreements before collocating its system on the property of others, including the city’s property. This section shall not be construed to prohibit a provider from leasing conduit to another provider, so long as the lessee has obtained a franchise. [Ord. 09-117 § 3.16.050, 2009.]

12.40.060 Construction permits required.

(1) Prior to site specific location and installation of any portion of its communications system within a public way, a franchisee shall apply for and obtain a construction permit pursuant to the ordinances of the city presently existing or as amended from time to time and pay any fees required by applicable ordinances.

(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 submit all duly required permits associated with the construction. In no case shall any work commence within any public way without said permit except as otherwise provided in this franchise.

(3) Franchisee shall comply with any moratorium requirements the city places on any newly constructed or refurbished roadway unless specifically otherwise authorized by the city. [Ord. 09-117 § 3.16.060, 2009.]

12.40.070 Term of franchise.

The initial term of a franchise shall be for a period of up to 15 years from the date of acceptance as set forth herein, and may be renewed thereafter for successive five-year terms if either party provides written notice to the other party 120 days before the end of the initial term or any renewal term of its intent to extend and renegotiate the terms and conditions of the franchise. At the end of that term, additional terms and extensions may be negotiated upon terms and conditions reasonably acceptable to both the city and the franchisee. [Ord. 09-117 § 3.16.070, 2009.]

12.40.080 Nonexclusive grant.

The grant of a 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 exercise reasonable care to avoid permitting any such future franchisee from physically or electronically interfering with the prior 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. In no event shall the city be financially liable for any interference resulting from the actions of another franchisee. A 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 chapter. Furthermore, if the city requires the relocation, modification, change, raising, lowering, or any alteration of a franchisee’s equipment such relocation, modification, change, raising, lowering, or any alteration shall be done at the franchisee’s expense, less any amounts the city receives from the state of Utah for such relocation purposes, within 90 days of receiving notice from the city. [Ord. 09-117 § 3.16.080, 2009.]

12.40.090 Maps and records.

After each project 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 IT specialist; however, in no event shall franchisee be obligated to provide proprietary information pertaining to the communication system, which includes, but is not limited to, information relating to the capacities, functionalities, and limitations of the communication system. 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 IT specialist. [Ord. 09-117 § 3.16.090, 2009.]

12.40.100 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 January 31st of each calendar year, during the term of a franchise, 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 open trenching construction activities. The city engineer 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: (a) such joint use shall not unreasonably delay the work of the party causing the excavation to be made or unreasonably increase its costs; (b) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and (c) either party may deny such request for safety reasons or if their respective uses of the trench are incompatible. [Ord. 09-117 § 3.16.100, 2009.]

12.40.110 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 the greater of the then current adopted city ordinance or engineering standard; or 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. Except as stated herein, the franchisee shall promptly complete all restoration work and 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. 09-117 § 3.16.110, 2009.]

12.40.120 Emergency work permit waiver.

In the event of any emergency in which any of the franchisee’s 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. 09-117 § 3.16.120, 2009.]

12.40.130 Dangerous conditions.

Whenever construction, installation or excavation of the communication facilities authorized by a 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, and 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. 09-117 § 3.16.130, 2009.]

12.40.140 Nonliability of city for acts 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 a franchise, and franchisee shall indemnify the city and hold 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 its franchise. [Ord. 09-117 § 3.16.140, 2009.]

12.40.150 Insurance.

The franchisee shall have a continuing duty to 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. On or before the first day of January of each and every year, the franchisee shall provide to the city for its records an insurance certificate relative to subsections (1) and (2) of this section 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 at a minimum insurance in an amount equal to or greater than the then existing governmental immunity caps as per the Governmental Immunity Act, Title 63G, Chapter 7, Utah Code Annotated 1953, as is currently in effect or as may be from time to time amended by the Utah State Legislature. At the time the ordinance codified in this chapter is adopted the following insurance coverage amounts will be sufficient:

(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:

(a) Two million dollars for bodily injury or death to each person; and

(b) Two million dollars for property damages resulting from any one accident.

(2) Automobile liability for owned, nonowned, and hired vehicles with a limit inclusive of umbrella or excess liability coverage of $2,000,000 for each person and $2,000,000 for each accident.

The liability insurance policies required by this section shall be maintained by the franchisee throughout the term of a 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 (a) 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, and (b) show the city as an additional insured. 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.

(3) Workers’ compensation within statutory limits. [Ord. 09-117 § 3.16.150, 2009.]

12.40.160 Abandonment and removal of the franchisee’s communication facilities.

Upon the expiration or termination of the rights granted under this chapter, the franchisee shall remove all of its aerial and other above-ground communication facilities from the public ways of the city within 180 days or post a cash bond or letter of credit in an amount based on the city engineer’s estimate designed to pay for the removal of franchisee’s above-ground facilities. At the city’s option it may, in lieu of removal requestor, allow franchisee to transfer the facilities to city. [Ord. 09-117 § 3.16.160, 2009.]

12.40.170 Modification.

The city and the franchisee reserve the right to alter, amend, or modify the terms and conditions of a 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. 09-117 § 3.16.170, 2009.]

12.40.180 Forfeiture and revocation.

(1) A franchise may be terminated for failure by franchisee to comply with the material provisions hereof, or other provisions of the city ordinances, or the franchise agreement.

(2) If the city has reason to believe that the franchisee is in violation of a 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 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 the time specified by the city.

(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 or no response is made, the city may declare the franchisee to be in default with written notice by certified mail to franchisee. Within 10 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 10 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.

(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. 09-117 § 3.16.180, 2009.]

12.40.190 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 the levy of taxes or fees upon the franchisee in accordance with state and federal law. 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. 09-117 § 3.16.190, 2009.]

12.40.200 Franchise fees and taxes.

This chapter and the franchise agreement is subject to the Utah Municipal Telecommunications License Tax Act, Title 10, Chapter 1, Sections 401 through 410, Utah Code Annotated 1953, as amended, enrolled at the time this agreement is signed or as may be amended (the “Telecommunications License Tax Act”). Franchisee shall pay the city’s municipal telecommunications license tax on such communications services that are subject to, and at the rate established in, the Telecommunications License Tax Act from time to time. Franchisee shall pay the city’s municipal telecommunications license tax at the rate of three and one-half percent of the gross receipts from telecommunications service attributed to the municipality or such higher rate as may be allowed by state law. Said tax shall be paid through the Utah State Tax Commission.

The city shall have access to any and all of the franchisee’s business records upon reasonable notice for the purpose of auditing compliance with the above tax provisions. [Ord. 09-117 § 3.16.200, 2009.]

12.40.210 Extension of system.

Extensions of the communications system and costs associated therewith shall be subject to, and governed by, Utah, the Commission’s Rules and in the franchisee’s tariffs on file with the Commission.

Whenever the franchisee receives a request for services from a subscriber in a contiguous unserved area where there are at least 10 residents within 1,320 cable bearing strand feet (one-quarter mile) from the portion of the franchisee’s trunk or distribution line which is to be extended, it shall extend its system to such subscribers at no cost to said subscribers for the system extension, other than the published standard installation fees charged to all subscribers. If the provider determines that it cannot provide such service, it shall notify the city of such determination in writing detailing the reasons why such service cannot be provided. Such notification shall be presented to the city council for their review and final determination. [Ord. 09-117 § 3.16.210, 2009.]

12.40.220 Survival.

All of the provisions, conditions and requirements of any franchise granted 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 NCC 12.40.060, Construction permits required; 12.40.100, Work in public ways; 12.40.110, Restoration after construction; 12.40.130, Dangerous conditions; 12.40.140, Nonliability of city for acts of franchisee; 12.40.150, Insurance; and 12.40.160, 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 or transfers ownership of said facilities to a third party.

All of the provisions, conditions, regulations and requirements contained in this chapter or a 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. 09-117 § 3.16.220, 2009.]

12.40.230 Severability.

If any section, sentence, clause or phrase of this chapter 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. 09-117 § 3.16.230, 2009.]

12.40.240 Assignment.

A franchise agreement may not be assigned or transferred without prior written consent from the city; said consent shall not be unreasonably withheld. Franchisee may freely assign this franchise in whole or in part to a parent, subsidiary, or affiliated corporation or as part of any corporate financing, reorganization, or refinancing. All assignments of a franchise and special grant must be in writing and a copy thereof filed in the office of the city recorder before any such assignment or transfer will be recognized by the city.

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 bandwidth 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. 09-117 § 3.16.240, 2009.]

12.40.250 Notice.

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

City:

Naples City c/o City Manager

1420 East 2850 South

Naples, UT 84078

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. 09-117 § 3.16.250, 2009.]

12.40.260 Entire franchise.

The franchise agreement, consistent with this chapter, constitutes the entire understanding and agreement between the parties as to the subject matter therein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon approval and acceptance of a 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. 09-117 § 3.16.260, 2009.]

12.40.270 Attorney’s fees.

If any suit or other action is instituted in connection with any controversy arising under a 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. 09-117 § 3.16.270, 2009.]

12.40.280 Governing law/venue.

This chapter 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 Uintah County, Utah, or with respect to any federal question, with the United States District Court for the District of Utah in Salt Lake City. [Ord. 09-117 § 3.16.280, 2009.]

12.40.290 Criminal penalties.

(1) Any violation or failure to abide by, and comply with, any provision or requirement of this chapter shall be a violation of the Naples City Code and shall be punished as a class B misdemeanor unless otherwise provided by state law. Each day that a violation continues shall be a separate and additional offense.

(2) In addition to those criminal and civil remedies provided by state and federal law, it shall be a misdemeanor for any person to create or make use of any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise with any part of a provider’s telecommunication system without the express consent of the provider. Further, without the express consent of the provider, it shall be a misdemeanor for any person to tamper with, remove, or injure any property, equipment, or part of the provider’s telecommunications system or any means of receiving cable telecommunication service or other services provided thereto. [Ord. 09-117 § 3.16.290, 2009.]