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HomeMy WebLinkAbout2395 ORDINANCE NO. 2395 AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING A FRANCHISE TO SAN BERNARDINO COMMUNITY TELEVISION ANTENNA SYSTEM. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION ONE: DEFINITIONS. For the purposes of this ordinance, the following terms, phrases, words, and their deriva- tions shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. Provisions of this ordinance shall be construed in accordance with the Laws of the State of California. (a) "City": The City of San Bernardino, a municipal corporation of the State of California, in its present incor- porated form or in any later reorganized, consolidated, enlarged or reincorporated form. (b) "Council": The present governing body of the City or any future board constituting the legislative body of the City. (c) "Franchise Property": All property retained by the Grantee in a street under authority of this franchise. (d) "Grantee": The person or corporation to whom or which this franchise is granted by the Council, and the lawful successor or assignee thereof, and who or which has filed with the City an acceptance and bond, referred to in Sections 3 and 13. (e) "Street": The surface of, and the space above and below any public street, road, highway, freeway, lane, alley, court, sidewalk, parkway, drive or space allocated for public utility easements, now or hereafter existing as such within the City. -1- . ". .. ".. .- , - .' ':', . :"'", (f) ''Closed Circuit System": Coaxial cables, wave guides, other conductors or other closed channels for providing enter- taining, educational, informational or intelligence material, visual, audible or other, by radio frequency, electric impulses or radio frequency electromagnetic waves passing over, on, in or through such facilities, excluding any general broadcast of radiant energy, for consideration or as a public service to Subscribers, at the selection of the Grantee. (g) "Subscriber": Any person or entity receiving for any purpose Closed Circuit System signals or other Closed Circuit System transmission. (h) "Operating Licensee": Any person or entity, conduct- ing all or part of a Closed Circuit System under license of, or transfer from, the Grantee, pursuant to Section 6 (c). (i) ''Total Gross Receipts": Any and all compensation and other consideration in any form whatever and any contributing grant or subsidy received directly or indirectly by Grantee and its Operating Licensees from Subscribers in payment for Closed Circuit System signals or other Closed Circuit System trans- mission received within the City. Total Gross Receipts shall also include any and all revenue wherever or however derived, from any person or entity, whether located inside or outside of City, as consideration for the performance of advertising, plant protection or communication services or any other services of any type or nature whatever by the use of all or any part of a Closed Circuit System located within the City, other than serv- ices to such person or entity as a Subscriber. (1) For the purpose of determining Total Gross Receipts, compensation or other consideration re- ceived by an Operating Licensee of the Grantee shall be deemed to have been received by the Grantee. (2) For the purpose of computing that portion of Total Gross Receipts which is obtained as considera- -2- : . . :' tion for services other than to a person or en- tity as a Subscriber, any payment of compensation or other consideration received by the Grantee for such services shall be fairly and reasonably allocated by Grantee and shall be determined by the ratio that the revenue obtained for services from Subscribers within the City bears to the revenue obtained for services from Subscribers performed both inside and outside of the City by the use of all Closed Circuit Systems of the Grantee. (3) Total Gross Receipts shall not include any taxes on the services furnished by the Grantee imposed directly on Subscribers by any city, state or other governmental unit and collected by the Grantee for such governmental unit. Section 2. FRANCHISE GRANT. ,The franchise hereby granted by the City authorizes SAN BERNARDINO COMMUNITY TELEVISION AN- TENNA SYSTEM, subject to the provisions herein contained, to engage in the business of operating and providing a Closed Circuit System in the City, and for that purpose to erect, in- stall, construct, repair, replace, reconstruct, maintain and re- tain in streets such poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attach- ments, and other property as may be necessary and appurtenant to a Closed Circuit System; and, in addition, so to use, operate and provide similar properties rented or leased from other per- sons, firms, or corporations, for such purpose. Section 3. DURATION OF GRANT. This franchise shall be effective on the thirty-first (31st) day after the publication -3- . . ." ".. of this ordinance, provided the Grantee has paid to the City the sum of one hundred dollars ($100.00) and, has filed with the City, within twenty (20) days after such date of publica- tion, a written instrument, addressed to the Council, accept- ing this franchise and agreeing to comply with its provisions. This franchise shall expire twenty-five (25) years after the effective date hereof, unless sooner terminated by the City Council, in the event the Council shall have found, after notice and hearing, that: (a) the Grantee has failed to comply with any material provisions hereof; or (b) any provision hereof has become invalid or unenforceable, and the Council finds that such provision constitutes a consideration material to the grant of this franchise; provided, however, that the Grantee shall be given at least thirty (30) days' notice of any termination pro- ceedings. Section 4. FRANCHISE PAYMENTS. (a) By its acceptance of this franchise, the Grantee agrees to pay to the City, annually, in lawful money of the United States, two percent (2%) of the total gross receipts collected or received, or in any manner gained or derived in each calen- dar year, or portion thereof, during the term of this franchise, by the Grantee or its Operating Licensees from the properties, operations, and business referred to in Section 2. In any year, or portion thereof, during which payments under this section amount to less than five hundred dollars ($500.00), Grantee agrees to pay the City the minimum amount of five hundred dol- lars ($ 500.00) . (b) It is hereby found as a matter of fact, and it is mutually agreed by the City in enacting this ordinance and by the Grantee in accepting the franchise granted by it, that there is no feasible method available for determining the portion of the -4- . . . . ,. annual Total Gross Receipts of the Grantee which arises from the use, operation or possession of this franchise and the por- tion which is attributable to other sources. It is, accordingly, ordained and agreed that the portion of Grantee's annual Total Gross Receipts arising from sources other than the use, opera- tion and possession of this franchise is negligible and impos- sible to ascertain in any economical manner, and for that rea- son, Grantee's Total Gross Receipts shall be deemed to arise from the use, operation and possession of the franchise granted by this ordinance. (c) The payments required by this section shall be paid annually and be due on or before the last day of March of each succeeding year. Payments shall be accompanied by a duly veri- fied statement showing in detail the Total Gross Receipts re- ceived by Grantee during the preceding calendar year from the properties, operations, and business referred to in Section 2. The Grantee shall at all times maintain accurate and complete accounts of all revenue and income arising out of its opera- tions under this franchise. Grantee's books, accounts and rec- ords shall at all times be open to inspection and examination by authorized officers, agents and employees of the City and shall be kept in such form as to enable such authorized offi- cers, agents and employees to ascertain the amounts due the City and determine any other facts relative to operations under this franchise. The right is reserved to the City of audit and recomputation of any and all amounts paid under this franchise and no acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this franchise or for the performance of any other obligation thereunder. In the event of its holding over after expiration or other termination -5- ,. .. . . . of this franchise, the Grantee shall render compensation pursu- ant to the provisions of this franchise until the effective date of a new franchise. (d) Performance of the duty of rendering compensation under this franchise and of every other obligation thereunder shall not be excused by the fact that the Grantee or any of its operating Licensees may purchase, lease or utilize, under any ar- rangement whatsoever, any Closed Circuit System equipment or fa- cilities or any other equipment or facilities required by a Closed Circuit System from any public utility or other person or entity. The Grantee agrees that its obligations under this franchise, including the duty of payment of compensation there- under, shall apply to all such equipment and facilities so pur- chased, leased or utilized, whether such equipment or facili- ties constitute all or any part of the Closed Circuit System operated within the City by the Grantee or its Operating Licen- sees. Section 5. SURRENDER OF OTHER FRANCHISES. (a) By its acceptance of this franchise grant or of an as- signment thereof, the Grantee agrees that upon subsequent addi- tions of areas to the City either by annexation, consolidation or otherwise, all Closed Circuit System franchises of die Grantee in such areas are thereby surrendered; provided, however, that should this franchise be declared invalid or be rendered inoperative by a final judgment, decree or order of any court of competent jurisdiction, the franchises thereby surrendered shall thereafter have the Same force and effect as if such surrender had not occurred. (b) By its acceptance of this franchise grant or of an as- signment thereof, the Grantee agrees that any Closed Circuit Sys- tem facilities and appurtenances in streets, which are subse- quently acquired by the Grantee or which were authorized by -6- , . . . .. franchises surrendered pursuant to the provisions of this sec- tion, are thereupon authorized by and shall be subject to the provisions of this franchise. Section 6. LIMITATIONS ON GRANT. (a) No privilege or exemption is granted or conferred by this franchise except those specifically prescribed herein. (b) Any privilege claimed under this franchise by the Grantee in any street shall be subordinate to any prior lawful occupancy of the streets, or other public property. (c) This franchise is a privilege to be held in personal trust by the original Grantee. It cannot in any event be trans- ferred in part, and it is not to be sold, transferred, leased, assigned, or disposed of as a whole, either by forced sale, merger, consolidation, or otherwise, without prior consent of the City expressed by ordinance, and then only under such conditions as may be therein prescribed; provided, however that no such consent shall be required for any transfer in trust, mortgage, or other hypothecation, as a whole, to secure an indebtedness. Prior consent of the City expressed by ordinance shall be re- quired in the event the Grantee issues licenses for operations under this franchise to Operating Licensees and such licenses shall be subject to all the conditions prescribed in the ordi- nance granting consent and the provisions of this franchise. Nothing contained herein shall relieve the Grantee from any of its duties and obligations under this franchise. (d) Time is of the essence of this franchise. The Grantee shall not be relieved of its obligation to comply promptly with any of its provisions by any failure of the City to enforce prompt compliance. (e) P~y right or power in, or duty impressed upon, any officer, employee, department, or Board of the City, is subject -7- . . !' , ' to transfer by the City to any other officer, employee, depart- ment or Board of the City. (f) The Grantee shall have no recourse whatsoever against the City for any loss, cost, expense or damage, arising out of any provision or requirement of this franchise or its enforce- ment. (g) Grantee is subject to all requirements of the City Charter and of all ordinances, rules, regulations, and specifi- cations of the City, heretofore or hereafter enacted or estab- lished, including, but not limited to, those concerning street work, street excavations, use, removal and relocation of prop- erty within a street, and other street work. (h) This franchise does not relieve the Grantee of any obligation involved in obtaining pole space from any department of the City or from others maintaining poles in streets. Section 7. RIGHTS RESERVED TO CITY. (a) There is hereby reserved to the City every ri~~t and power which is required to be herein reserved or providE!d by any ordinance of the City, and the Grantee by its acceptance of this franchise agrees to be bound thereby and to comply with any ac- tion or requirement of the City in its exercise of any such right or power, heretofore or hereafter enacted or established. (b) Neither the granting of this franchise nor any of the provisions contained herein shall be construed to prevent the City from granting any identical, or similar, franchise to any person or corporation other than the Grantee. Section 8. TIME OF PERFORMANCE. Installation of a Closed Circuit System shall be commenced within two (2) years ,lfter the effective date of this franchise, and extensions and service, where practical, pursued with due diligence thereafter. Failure to so commence and offer service shall be grounds for termination -8- { ,. , . , ~ -, t, . ('. '. of this franchise. Section 9. LOCATION OF FRANCHISE PROPERTIES. Franchise property shall be constructed or installed in streets only at such locations and in such manner as shall be approved by the Superintendent of Streets, acting in the exercise of reasonable discretion. Construction or installation of franchise prop- erty in all other public places shall be subject to approval of and regulation by the City Council. Section 10. REMOVAL OR ABANDONMENT OF FRANCHISE P.ROPERTY. (a) In the event that the use of any franchise property is discontinued for any reason for a continuous period of twelve (12) months or that franchise property has been installed in any street without complying with the requirements of this fran- chise, the Grantee shall promptly remove from the street all such property other than any which the Street Superintendent may permit to be abandoned in place. In the event of any such removal, the Grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the Superintendent of Streets. (b) Franchise property to be abandoned in place shall be abandoned in such manner as the Superintendent of Streets shall prescribe. Upon permanent abandonment of any franchise prop- erty in place, the Grantee shall submit to the Superintendent of Streets an instrument, satisfactory to the City Attorney, transferring to the City the ownership of such property. Section 11. CHANGES REQUIRED BY PUBLIC IMPROVEMENTS. The Grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street, alley, or public place, or remove from any street, alley or public place, any franchise property when required by the Superintendent of Streets, by rea- son of traffic conditions, public safety, street vacati.on, free- way and street construction, change or establishment of street -9- . .. . ,,. . ~' , . ....,. ... ~ .. grade, installation of sewers, drains, water pipes, powe:r lines and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or propri- etary capacity, or any other structures or public improvements; provided, however, that Grantee shall in all such cases have the privileges and be subject to the obligation to abandon fran- chise property in place, as provided in Section 10. Section 12. FAILURE TO PERFORM STREET WORK. Upon failure of the Grantee to complete any work required by law or by the provisions of this franchise to be done in any street, within the time prescribed and, to the satisfaction of the Superintendent of Streets, the Superintendent of Streets .may cause such work to be done and the Grantee shall pay to the City the cost thereof in the itemized amounts reported by the Superintendent of Streets to the grantee, within thirty (30) days after receipt of such itemized report. Section 13. FAITHFUL PERFORMANCE BOND. (a) The Grantee shall, concurrently with the filing of an acceptance of award of this franchise, file with the COtmcil, and at all times thereafter maintain in full force and effect for the term of this franchise at its expense, a corporate surety bond, in a company approved by the chief administrative officer and in a form satisfactory to the City Attorney, in duplic~lte, in the amount of five thousand dollars ($5,000.00), renewable an- nually, and conditioned upon the faithful performance of Grantee and that in the event the Grantee shall fail to comply vlith any one or more of the provisions of this franchise, then tllere shall be recoverable jointly and severally from the principal and sure- ty of such bond, any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of pl:operty -10- . . . . . , . " ',' .... , , '.. . .~'. . . ..>. '." , ::1. as prescribed by this ordinance which may be in default, plus a reasonable allowance for Attorneys fees and costs, up to the full amount of the bond; said condition to be a continuing ob- ligation for the duration of this franchise and thereafter un- til the Grantee has liquidated all of its obligations wi.th the City that may have arisen from the acceptance of this franchise by the Grantee or from its exercise of any privilege herein granted. The bond shall provide that thirty (30) days prior wri.tten notice of intention not to renew, cancellation or mate- rial change be given to the City. (b) Neither the provisions of this section, any bond accept- ed by the City pursuant there'to, nor any damages recovered by the City thereunder shall be construed to excuse faithful perform- ance by the Grantee or limit the liability of the Grantee under this franchise or for damages, either to the full amoun1: of the bond or otherwise. Section 14. INDEMNIFICATION TO CITY. (a) Grantee agrees that at all times during the existence of this franchise it will maintain in force, furnish to the City a~/ and file with the Council, at its own expense, a general compre- hensive liability insurance policy, in protection of Cilty, its boards, commissions, officers. agents and employees. in a com- pany approved by the Chief Administrative Officer and Ul form satisfactory to the City Attorney. protecting the City and said persons against liability for loss or damages for personal in- jury. death and property damage occasioned by the opera;tions of Grantee under this franchise. with minimum liability lbnits of $500.000.00 for personal injury or death of anyone person and $1.000.000.00 for personal injury or death of two or more per- sons in anyone occurrence. and $50,000.00 for damage to property resulting from anyone occurrence. (b) The policies mentioned in the foregoing paragraph -11- '''-~-- ~ 1'rti.;; -' . , t . '. .p' " . :;,~. ":.. shall contain a provision that a written notice of any cancella- tion or reduction in coverage of said policy shall be delivered to the City ten (10) days in advance of the effective date there- of. If such insurance is provided in either case by a policy which also covers Grantee or any other entity or person than those above named, then such policy shall contain the standard cross-liability endorsement. Section 15. lliSPECTION OF PROPERTY AND RECORDS. At all reasonable times, the Grantee shall permit any duly-authorized representative of the City to examine all franchise property, together with any appurtenant property of the Grantee situated within or without the City, and to examine and transcribe any and all maps and other records kept or maintained by the Grantee or under its control which treat of the operations, affairs, transactions or property of the Grantee with respect thereto. Grantee, shall, after reasonable request, furnish to the Street Superintendent, copies of maps and records showing the e,xact location of all Closed Circuit System equipment installe,d, or in use, by Grantee, in streets, alleys and public places: of the City. Section 16. CONSTRUCTION. Grantee shall construct: and maintain System in accordance with General Order No. 95 of the Public Utilities Commission. Section 17. RATES. The Grantee shall, within thirty (30) days after the granting of this franchise file with the City Clerk its rate schedules, setting forth the amounts of all rates and charges presently made for all services to be rendeJ~ed by it, which are covered by this franchise. Thereafter, Grantee shall not increase its rate schedules without the consent of the City Council. Section 18. SEVERABILITY. If any section, subsection, -12- '-1~ sentence, clause or phrase of the ordinance is for any reason held illegal, invalid, or unconstitutional, such invalidity shall not affect the validity of the ordinance or any of the remaining portions thereof. The invalidity of any portion of this ordinance shall not abate, reduce or otherwise affect any consideration or other obligation required of the Grantee by this franchise. I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Common Council of the City of San Ber- nardino at a /~!::>~( 4~/ meeting thereof, held on the ,;"ry- L:?,?Zl day of1 ~---b<-~'-<f;J!"Cd:4f./ , 1961, by the following ( vote, to wit: AYES: CouJ'cilmen L",,--d'e ';d-/~~<;;z.~;"'f: ~-c'~74,r /)}L~~' l' ; NOES: /7.t 71..! -- ABSENT: ';;rZ-!--:FU- /li.J!r~ !j C'4.' ..P. . /. ~ City Clerk I The fo'regoing uri lance is hereby approved this,<7/..a.z:"day of "'1:;;L--Jf.d-ntk.{/ , jl. C"~.(, A - '#-.:<<<- ' '~~r 0 tei~ San Bernardino Approved as to form: ~~~ srt'Y ATTORNEY w., f ~ ; ,~ t~~ ';, p i:; '.. ''','''''~,:~ 'j( . _/~: _.~ lt', ie, l 'I ,,---J 7i<1..