HomeMy WebLinkAbout2709
J.
2
3
4
5
ORDINANCE NO..2. 7 ()C/
~ .
AN ORDINANCE OF THE CITY OF SAN BERNARDINO GRANTING A
FRANCHISE TO To V. RECEPTORS, INC.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTION ONE: DEFINITIONS. For the purposes of this
6 ordinance, the following terms, phrases, words, and their deri-
7 vations shall have the meaning given herein. When not inconsistent
8 with the context, words used in the present tense include the
9 future, words in the plural number include the singular number,
10 and words in the singular number include the plural number.
11 Provisions of this ordinance shall be construed in accordance
12 with the Laws of the State of California
13
(a) "City": The City of San Bernardino, a municipal
14 corporation of the State of California, in its present incorporated
15 form or in any later reorganized, consolidated, enlarged or re-
16 incorporated form.
17
(b) "Council": The present governing body of the City
18 or any future board constituting the legislative body of the City.
19
(c) "Franchise Property": All property retained by the
20 Grantee in a street under authority of this franchise.
21
(d) "Grantee": The person or corporation to whom or
22 which this franchise is granted by the Council, and the lawful
23
24
25
26
27
28
29
30
.31
32
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, space or places allocated for
public utility easements or licenses, now or hereafter existing
as such within the City.
(f) "Closed Circuit System": Coaxial cables. wave guides,
other conductors or other closed channels for providing,enter-
ta~ning, educational, informational or intelligence material,
30
.31
32
1 visual, audible or other, by radio frequency, electric impulses or
2 radio frequency electromagnetic waves passing over, on, in or
3 through such facilities, excluding any general broadcast of
4 radiant energy, for consideration or as a public service to sub-
5 scribers, at the selection of the Grantee.
6
(g) "Subscriber": Any person or entity receiving for
7 any purpose Closed Circuit System signals or other Closed Circuit
8 System transmission.
9
(h) "Operating Licensee": Any person or entity, conducting
10 all or part of a Closed Circuit System under license of, or trans-
11 fer from, the Grantee, pursuant to Section 6 (c).
12
(i) "Total Gross Receipts": Any and all compensation and
13 other consideration in any form whatever and any contributing
14 grant or subsidy received directly or indirectly by Grantee and
15 its Operating Licensees from Subscribers in payment for Closed
16 Circuit System signals or other Closed Circuit System transmission
17 received from the area served by the antenna or other facilities
18 erected within the City. Total Gross Receipts shall also include
19 any and all revenue wherever or however derived, from any person
20
21
22
23
24
25
26
27
28
29
or entity, whether located inside or outside of City, as consider-
ation 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 the Closed
Circuit System served by the antenna.
(1) For the purpose of determining Total Gross
Receipts, compensation or other consideration
received by an Operating Licensee of the Grantee
shall be deemed to have been received by the Grantee.
(2) 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
-2-
1 governmental unit and collected by the Grantee
2 for such governmental unit.
3 (j) "License": Unless otherwise stated shall mean that
4 license granted to Grantee herein for its use of City property as
5 therein provided, and any succeeding license so granted.
6 SECTION TWO: FRANCHISE GRANT. The franchise hereby
7 granted by the City authorizes T. V. RECEPTORS, INC., a California
8 Corporation, subject to the provisions herein contained and
9 further subject to the revocable license and Conditional Develop-
10 ment Permit No. ~48 granted to Grantee, to erect, install, main-
11 tain, repair, replace and retain in streets such wires, cables,
12 conduits, and other property as may be necessary and appurtenant
13 to a Closed Circuit System to serve the existing unincorporated
14 area presently outside the City from a television antenna within
15 a fenced enclosure to be erected at a location designated by City
16 in Perris Hill Park; and, in addition, so to use, operate and
17 provide similar properties rented or leased from other persons,
18 firms, or corporations for such purpose.
19 SECTION THREE: DURATION OF GRANT. This franchise shall
20 be effective on the Thirty-first (31st) day after the publication
21 of this ordinance, provided the Grantee has paid to the City the
22 sum of One Hundred Dollars ($100.00) and, has filed with the City,
23 within twenty (20) days after such date of publication, a written
24 instrument, addressed to the Council, accepting this franchise
25 and agreeing to comply with its provisions.
26 This franchise shall expire twenty-five (25) years after
27 the effective date hereof, unless sooner terminated by the City
28 Council, in the event the Council shall have found, after notice
29 and hearing, that: (a) the Grantee has failed to comply with
30 any material provisions hereof; or (b) any provision hereof has
.31 become invalid or unenforceable, and the Council finds that such
32 provision constitutes a consideration material to the grant of
-3-
~ this franchise; provided, however, that the Grantee shall be
2 given at least thirty (30) days' notice of any termination
3 proceedings.
4 SECTION FOUR: FRANCHISE PAYMENT.
5 (a) By its acceptance of this franchise, the Grantee
6 agrees to pay to the City, annually, in lawful money of the United
7 States, two percent (2%) of the total gross receipts collected or
8 received, or in any manner gained or derived in each calendar
9 year, or portion thereof, during the term of this franchise, by
10 the Grantee or its Operating Licensees from the properties,
11 operations, and business referred to in Section Two. In any year
12 or portion thereof, during which payments under this section
13 amount to less than five hundred dollars ($500.00), Grantee
14 agrees to pay the City the minimum amount of five hundred dollars
15 ($500.00).
16 (b) The payments required by this section shall be paid
17 annually and be due on or before the last day of March of each
18 succeeding year. Payments shall be accompanied by a duly
19 verified statement showing in detail the Total Gross Receipts
20 received by Grantee during the preceding calendar year from the
21 . . db' f d . S . Tw
propert~es, operat~ons, an us~ness re erre to ~n ect~on o.
22 The Grantee shall at all times maintain accurate and complete
23 accounts of all revenue and income arising out of its operations
24 under this franchise. Grantee's books, accounts and records
25 shall at all times be open to inspection and examination by
26 authorized officers, agents and employees of the City and shall
27 be kept in such form to enable such authorized officers,
as
28 agents and emp loyees ascertain the amounts due the City and
to
29
30
.31
32
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
-4-
1 and no acceptance of any payment shall be construed as a release
2 or as an accord and satisfaction of any claim the City may have
3 for further or additional sums payable under this franchise or
4 for the performance of any other obligation thereunder. In the
5 event of its holding over after expiration or other termination
6 of this franchise, the Grantee shall render compensation pursuant
7 to the provisions of this franchise until the effective date of
8 a new franchise.
9
(c) Performance of the duty of rendering compensation
10 under this franchise and of every other obligation thereunder
11 shall not be excused by the fact that the Grantee or any of its
12 operating Licensees may purchase, lease or utilize, under any
13 arrangement whatsoever, any Closed Circuit System equipment or
14 facilities or any other equipment or facilities required by a
15 Closed Circuit System from any public utility or other person or
16 entity. The Grantee agrees that its obligations under this
17 franchise, including the duty of payment of compensation there-
18 under, shall apply to all such equipment and facilities so
19 purchased, leased or utilized, to serve the area specified in
20 Section Two.
21 SECTION FIVE: SURRENDER OF WIlER FRANCHISES 0
22 (a) By its acceptance of this franchise grant or of an
23 assignment thereof, the Grantee agrees that upon subsequent
24 additions of areas to the City either by annexation, consoli-
25 dation or otherwise, all Closed Circuit System franchises of the
26 Grantee in such areas are thereby surrendered; provided, however,
27 that should this franchise be declared invalid or be rendered
28 inoperative by a final judgment, decree or order of any court
29 of competent jurisdiction, the franchises thereby surrendered
30 shall thereafter have the same force and effect as if such
.31 surrender had not occurred.
32 (b) By its acceptance of this franchise grant or of an
-5-
1 assignment thereof, the Grantee agrees that any Closed Circuit
2 System facilities and appurtenances in streets, which are sub-
3 sequently acquired by the Grantee or which were authorized by
4 franchises surrendered pursuant to the provisions of this
5 section, are thereupon authorized by and shall be subject to
6 the provisions of this franchise.
7 SECTION SIX. LIMITATIONS ON GRANT.
8 (a) No privilege or exemption is granted or conferred by
9 this franchise except those specifically prescribed herein.
10 (b) Any privilege claimed under this franchise by the
11 Grantee in any street shall be subordinate to any prior lawful
12 occupancy of the streets, or other public property.
13 (c) This franchise is a privilege to be held in personal
14 trust by the original Grantee. It cannot in any event be trans-
15 ferred in part, and it is not to be sold, transferred, leased,
16 assigned, or disposed of as a whole, either by forced sale,
17 merger, consolidation, or otherwise, without prior consent of
18 the City expressed by ordinance, and then only under such con-
19 ditions as may be therein prescribed; provided, however, that no
20 such consent shall be required for any transfer in trust, mort-
21 gage, or other hypothecation, as a whole, to secure an indebted-
22 ness. Prior consent of the City expressed by ordinance shall
23 be required in the event the Grantee issues licenses for operations
24 under this franchise to Operating Licensees and such licenses
25 shall be subject to all the conditions prescribed in the ordin-
26 ance granting consent and the provisions of this franchise.
27 Nothing contained herein shall relieve the Grantee from any of
28 its duties and obligations under this franchise.
29 (d) Time is of the essence of this franchise. The
30 Grantee shall not be relieved of its obligation to comply
-31 promptly with any of its provisions by any failure of the City
32 Do enforce prompt compliance.
-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
.31
32
(e) Any right or power in, or duty impressed upon, any
officer, employee, department, or Board of the City, is subject
to transfer by the City to any other officer, employee, department
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 enforcement.
(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
property 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.
(i) The Grantee shall not serve any Subscribers in the prese t
boundaries of City excepting public agencies or schools which may
be served by the Closed Circuit System provided that no contact
or installation charge or monthly or other service charge is
made to such public agency or school.
SECTION SEVEN. RIGHTS RESERVED TO CITY.
(a) There is hereby reserved to the City every right and
power which is required to be herein reserved or provided 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
action 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
p~rson or corporation other than the Grantee.
-7-
1 SECTION EIGlIT. TIME OF PERFORMANCE. Installation of a
2 Closed Circuit System shall be commenced within two (2) years
3 after the effective date of this franchise, and extensions and
4 service, where practical, pursued with due diligence thereafter.
5 Failure to so commence and offer service shall be grounds for
6 termination of this franchise.
7 SECTION NINE. LOCATION OF FRANCHISE PROPERTIES. Franchise
8 property shall be constructed or installed in streets only at
9 such locations and in such manner as shall be approved by the
10 Superintendent of Streets, acting in the exercise of reasonable
11 discretion. Location, construction, installation and maintenance
12 of the antenna, fencing and appurtenances thereto upon the City's
13 Perris Hill Park area shall be subject to and in conformity with
14 the detailed plans attached to the aforementioned License and
15 Conditional Development Permit No. 348. Location, construction
16 or installation of franchise property in all other public places
17 shall be subject to approval of and regulation by the City
18 Council; provided, however, that any such poles shall not be
19 erected or maintained on any streets in which there then exists,
20 or is being erected, a pole line of any public or private
21 corporation or person engaged in service to the public as a
22 public utility, and which pole line is reasonably available to
23 the Grantee for use pursuant to a pole line contact rental
24 agreement.
25 SECTION TEN: REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY.
26 (a) In the event that the use of any franchise property
27 is discontinued for any reason for a continuous period of
28 twelve (12) months or that franchise property has been installed
29 in any street without complying with the requirements of this
30 franchise, the Grantee shall promptly remove from the street all
.31 such property other than any which the Street Superintendent may
32 p~rmit to be abandoned in place. In the event of any such
-8-
24
25
26
27
28
29
30
.31
32
1 removal, the Grantee shall promptly restore the street or other
2 area from which such property has been removed to a condition
3 satisfactory to the Superintendent of Streets.
4
(b) Franchise property to be abandoned in place shall be
5 abandoned in such manner as the Superintendent of Streets
6 shall prescribe. Upon permanent abandonment of any franchise
7 property in place, the Grantee shall submit to the Superintendent
8 of Streets an instrument, satisfactory to the City Attorney,
9 transferring to the City the ownership of such property.
10
SECTION ELEVEN: CHANGES REQUIRED BY PUBLIC IMPROVEMENTS.
11 The Grantee shall, at its expense, protect, support, temporarily
12 disconnect, relocate in the same street, alley, or public place,
13 or remove from any street, alley or public place, any franchise
14 property when required by the Superintendent of Streets, by
15 reason of traffic conditions, public safety, street vacation,
16 freeway and street construction, change or establishment of
17 street grade, installation of sewers, drains, water pipes, power
18 lines and tracks or any other type of structures or improvements
19 by governmental agencies when acting in a governmental or proprie-
20 tary capacity, or any other structures or public improvements;
21 provided, however, that Grantee shall in all such cases have
22 the privileges and be subject to the obligation to abandon
23 franchise property in place, as provided in Section 10.
SECTION TWELVE: FAIWRE 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 the Water Department and €he Superintendent of
.
Streets, the Superintendent of the Water Department or 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 the Water
-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
~1
32
Department or the Superintendent of Streets to the Grantee,
within thirty (30) days after receipt of such itemized report.
SECTION THIRTEEN. FAITHFUL PERFORMANCE BOND.
(a) The Grantee shall, concurrently with the filing of
an acceptance of award of this franchise, file with the Council,
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 duplicate,
in the amount of five thousand dollars ($5,000.00), renewable
annually, and conditioned upon the faithful performance of
Grantee and that in the event the Grantee shall fail to comply
with anyone or more of the provisions of this franchise, then
there shall be recoverable jointly and severally from the
principal and surety 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 property 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 obligation for the duration of this
franchise and thereafter until the Grantee has liquidated all
of its obligations with the City that may have arisen from
the acleptance of this franchise by the Grantee or from its
exercise of any privilege herein granted. The bond shall
provide that thirty (30) days prior written notice of intention
not to renew, cancellation or material change be given to the
City.
(b) Neither the provisions of this section, any bond
accepted by the City pursuant thereto, nor any damages recovered
by the City thereunder shall be construed to excuse faithful
p~rformance by the Grantee or limit the liability of the Grantee
-10-
1
2
:3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
.31
32
under this franchise or for damages, either to the full amount of
the bond or otherwise.
SECTION FOURTEEN: 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
and file with the Council, at its own expense, a general
comprehensive liability insurance policy, in protection of City,
its boards, commissions, officers, agents and employees, in a
company approved by the Chief Administrative Officer and in
form satisfactory to the City Attorney, protecting the City
and said persons against liability for loss or damages for
personal injury, death and property damage occasioned by the
operations of Grantee under this franchise, with minimum
liability limits 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 persons in anyone occurrence, and $50,000.00
for damage to property resulting from anyone occurrence.
(b) The policies mentioned in the foregoing paragraph
shall contain a provision that a written notice of any
cancellation or reduction in coverage of said policy shall be
delivered to the City ten (10) days in advance of the effective
date thereof. If such insurance is provided in either case by
a policy which also covers Grantee of any other entity or person
than those above named, then such policy shall contain the
standard cross-liability endorsement.
SECTION FIFTEEN: INSPECTION 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,
-11-
21
22
23
24
25
26
27
28
29
30
.31
32
1 transactions or property of the Grantee with respect thereto.
2 Grantee, shall, after reasonable request, furnish to the Street
3 Superintendent, copies of maps and records showing the exact loca-
4 tion of all Closed Circuit System equipment installed, or in use,
5 by Grantee, in streets, alleys and public places of the City.
6
SECTION SIXTEEN. CONSTRUCTION. Grantee shall construct
7 and maintain System in accordance with General Order No. 95
8 of the Public Utilities Commission.
9
SECTION SEVENTEEN. RATES. The Grantee shall, within
10 thirty (30) days after the granting of this franchise file with
11 the City Clerk its rate schedules, setting forth the amounts of
12 all rates and charges presently made for all services to be
13 rendered by it, which are covered by this franchise. Thereafter,
14 Grantee shall not increase its rate schedules without the consent
15 of the City Council.
16
SECTION EIGHTEEN. SEVERABILITY. If any section, sub-
17 section, sentence, clause or phrase of the ordinance is for any
18 reason held illegal, invalid, or unconstitutional, such invalidity
19 shall not affect the validity of the ordinance or any of the
20 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
Bernardino at a-?J. A-P/J-U/..1 ALAN~tl)meeting thereof,
~~. ?
held on the~...,t day of ''In--?J'''~~A,/ ,1965, by the
following vote, to wit~
AYES: Councilmen~J~~ /h.";"-<l /Z'~~
'7 .
NOES: 7/$>-U J .
ABSENT: ~~~LflLAutM..) ~"......... .J'jit"L;...
.
.
lfb~
-12-
cr~/
C~ty er
1
2 of
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
.31
32
The foregoing Ordinance is hereby approved this ~7/niday
~~APthv , 1965.
f
~eg~
Mayor 0 the ~ity 0 an e nardino
0-
:'~
,~~~j~/
(J