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HomeMy WebLinkAbout2864ORDINANCE NO. 2864 AN ORDINANCE OF THE CITY OF SAN BERNAijjrNic.. Nt} D' ;~, A FRANCHISE TO T. V. RECEPTORS, INC. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 4 BERNARDINO DO ORDAIN AS FOLLOWS: SECTION ONE: DEFINITIONS. For the purposes of this 6 ordinance, the following terms, phrases, words, and their deriva- 7 tions 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 incor- 15 porated form or in any later reorganized, consolidated, enlarged 16 or reincorporated 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 ~ 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 successor or assignee thereof, and who or which has filed with ~ the City an acceptance and bond, referred to in Sections 3 and 25 13. 29 (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. 26 27 28 30 31 (f) "Closed Circuit System": Coaxial cables, wave 32 ~uides, other conductors or other closed channels for providing . / 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 entertaining, 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 Granteeeo (g) "Subscriber": Any person or entity receiving for any purpose Closed Circuit System signals or other Closed Circuit System transmissiono (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)o (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 Cityo 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 Subscribero (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 Granteeo (2) For the purpose of computing that portion of Total Gross Receipts which is obtained as consideration -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 W 21 22 23 ~ 25 U 27 ~ ~ W 31 32 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 TWO. FRANCHISE GRANT. The franchise hereby granted by the City authorizes T. V. RECEPTORS. INC., 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, install, construct, repair, replace, reconstruct, maintain and retain in streets such poles, wires, cable, conductors, ducts, conduits, vaults, man- holes, amplifiers, appliances, attachments, 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 persons, firms, or corporations, for such purpose. SECTION THREE. DURATION OF GRANT. This franchise shall be effective on the thirty-first (31st) day after the publication -3- 1 2 of this ordinance, provided the Qrantee 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 sooaer terminated by the City Council, in the event the Couacil shall have found, after notice and hearing, that: (a) the iraatee has failed to comply with any material provisioas hereof; or (b) aay provision hereof has become invalid or unenforceable, and the Council finds that such provision cOllstitutes a consideratioa material to the graat of this franchise; provided, however, that the 8raatee shall be givea at least thirty (30) days' notice of any termination proceedings. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 SECTION FOUR: FRANClISE PAlMENl'S. (a) By its acceptance of this franchise, the irantee agrees to pay to the City, annually, in lawful DlOaey of the United States, three percent (37.) of the total gross receipts collected or received, or in any manner gained or derived in each calea- dar year, or portion thereof, during the term of this franchise, by the ~rantee or its Operating Licensees from the properties, operations, and business referred to in Section Two. In any year, or portion thereof, during which payments under this section amount to less than five hundred dollars ($500.00), Qrantee agrees to pay the City the minimum amount of five hundred dollars ($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 ~rantee in accepting the franchise granted by it, that there is no feasible method available for determining the portion of the 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 . -4- 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 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 Two. 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- 1 of this franchise, the Grantee shall render compensation pursu- 2 ant to the provisions of this franchise until the effective date 3 of a new franchise. 4 (d) Performance of the duty of rendering compensation 5 under this franchise and of every other obligation thereunder 6 shall not be excused by the fact that the Grantee or any of its 7 operating Licensees may purchase, lease or utilize, under any ar- 8 rangement whatsoever, any Closed Circuit System equipment or fa- 9 ci1ities or any other equipment or facilities required by a 10 Closed Circuit System from any public utility or other person 11 or entity. The Grantee agrees that its obligations under this 12 franchise, including the duty of payment of compensation there- 13 under, shall apply to all such equipment and facilities so pur- 14 chased, leased or utilized, whether such equipment or faci1i- 15 ties constitute all or any part of the Closed Circuit System 16 operated within the City by the Grantee or its Operating 17 Licensees. 18 SECTION FIVE. SURRENDER OF OTHER FRANCHISES. 19 (a) By its acceptance of this franchise grant or of an as- ~ signment thereof, the Grantee agrees that upon subsequent addi- 21 tions of areas to the City either by annexation, consolidation 22 or otherwise, all Closed Circuit System franchises of the 23 Grantee in such areas are thereby surrendered; provided, however, ~ that should this franchise be declared invalid or be rendered 25 inoperative by a final judgment, decree or order of any court of 26 competent jurisdiction, the franchises thereby surrendered shall 27 thereafter have the same force and effect as if such surrender 28 had not occurred. ~ (b) By its acceptance of this franchise grant or of an as- ~ signment thereof, the Grantee agrees that any Closed Circuit 31 System facilities and appurtenances in streets, which are subse- 32 ~uent1y acquired by the Grantee or which were authorized by -6- 1 2 3 4 5 franchises surrendered pursuant to the provisions of this section. are thereupon authorized by and shall be subject to the provisions of this franchise. SECTION SIX: LIMITATIONS ON QRANr. (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 ~y the original ~rantee. 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 required in the event th e 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 ~rantee 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) Any right or power in. or duty impressed upon, any officer. employee, department, or Board of the City. is subject 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 . ~7- 1 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 10s8. 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 established including. but not liDited 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 maint'ining poles in streets. 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 siDilar. franchise to any person or corporation other than the Grantee. SECTION EI<;HT: TIME OF PERFORMANCE. Installation of a Closed Circuit System shall be commenced within two (2) years after the effective date of this franchise. and extenaions and service. where practical. pursued with due diligence thereafter. Failure to so commence and offer serVice shall be grounds for termination of this franchise. 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 . -8.. , . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 SECTION NINE: 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 property in all other public places shall be subject to approval of and regulation by the City Council. Grantee shall not provide service to any person, firm or corporation within the City if service is then immediately avail- able to such person, firm or corporation pursuant to another and different franchise granted by City. Service shall be deemed to be immediately available to a person, firm or corporation if, at the time grantee desires to provide service to such person, firm or corporation, there exists a transmission line belonging to an entity franchised by grantor, along a property line, or a street or alley adjoining a property line, of the property to which service is sought to be established by grantee; except, however, that in the event the entity owning the line along, or adjoining, the property line of the property to which grantee seeks to establish service fails to provide such service within thirty (30) days after receiving written notice, sent by registered or certi- fied mail, requesting such service, the grantee may provide such service. 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 SECTION TEN: REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY. (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 franchise, the Grantee shall promptly remove from the street all such property other than any which the Street Superintendent may per- mit to be abandoned in place. In the event of any such removal, the Grantee shall promptly restore the street or other area from wh}ch such property has been removed to a condition satisfactory to the Superintendent of Streets. -9- r 1 2 3 4 5 6 7 8 9 10 11 i , 12 . , ,I 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 ] (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 property in place, the Qrantee shall submit to the Superintendent of Streets an instrument, satisfactory to the City Attorney, transferring to the City the ownership of such property. SECTION ELEVEN: alANGES 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 reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or any other structures or public improve- ments; provided, however, that Grantee shall in all such cases have the privileges and be subject to the obligation to abandon franchise property in place, as provided in Section Ten. SECTION TWELVE: 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 TIlIRTEEN: FAITHFUL PERFORMANCE BOND. (a) The Qrantee shall, concurrently with the filing of an acceptance of award of this franchise, file with the Council, and -10- .,. 1 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 acbinistrative 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 (;rantee and that in the event the (;rantee 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 sur.ty of such bond, any damages or lo.s suffered by the City AI a re.ult thereof, including the full _ount of any compensation. indellmification, or cost of removal or abandonment of property a. prescribed by this ordinance which may be in default, plus a rea.onable allowance for Attorneys fees and costs, up to' the full amount of the bond; said condition to be a continuing obligatien for the duration of this franchise and thereafter until the ~antee has liquidated all of its obligations with the City that may have arisen from the acceptance of this freehiee by the ~antee or from its exercise of any privilege herein granted. 'lbe bond shall provide that thirty (30) days' prior writteri 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 . performance by the ~antee or limit the liability of the (;rantee under this franchise or for damages, either to the full amount of the bond or otherwise. SECTION FOURTEEN: INlEMlID'ICATION TO CITY. (a) ~antee agrees that at all times during the existence of this franchise it will maintain in force, furnish to the City 8Dd file with the Council, at its own expense, a general 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 -11- 1 2 3 4 5 6 7 8 9 comprehensive liability insurance policy, in protection of City, its boards, commissions, officers, agents and emplo,ees, in a company approved by the Chief Adainistrative Officer and in form satisfactory to the City Attorney, protecting the City and said persons against liability for loss or d~.ges for personal iaj ury , death and property damage occasioned by the operations of Grantee under this franchise, with minim\ID liability limits of five hundred thousand dollars ($500,000.00) for personal injury or death of anyone person and one million dollars ($l,OOOpOOO.OO) for personal injury or death of two or more persoas in oy one occurrence, and fifty thousand dollars ($50,000.00) for damage to property resulting from anyone occurrence. (b) '!'he policies mentioned ill. the foregoing paragraph shall contain a provision that a written notice of any caneellaa tion 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 Grotee or any other entity or person than those above n_ed, then such policy shall contain the standard cross-liability endorsement. SEClION FIrTEEN: IlfSPEClION or PROPERTY AND RECORm. At all reasonable times, the Grantee shall permit any duly-authorized represeatative of the City to examine all franchise property, together with any appurtenant property of the Grantee situated within or without the City, and to ex_ine and transcribe any and all maps and other records kept or maintained by the Grantee or under its control which.'~eat 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 exact location of all Closed Circuit System equipment installed, or :i.n use, by Grantee, in streets, alleys and public places of the City. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 '. -12- 1 SECTION SIXTEEN: CONSTRUCTION. ~ante. shall construct and maintain System in accordance with General Order No. 95 of the PUblic Utilities CQRBission. SECTION SEVENTEEN: RATES. The (;rantee 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 rendered by it, which are covered by this franchise. Thereafter, Qrantee shall not increase its rate schedules without the consent of the City Council. SECfION EIwu!ft: SEVERABILITY. If any section, subsection, sentence, clause or phrase of the ordinance is for any reason held illegal, invalid, or unconstitutional, such invalidity shall not affect tbe 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 ~antee by this franchise. I IlEUBY CERTIFY that the foreloing Ordiaance was duly adopted by the Mayor and COIDOIl CoUllcil of the City of San Ber" nardino at a ,~~./ meeting thereof, held on the c-?O..aC day of 772'-,,....,~/48<) . 1967 by the following vote, to wit: AYES: COUDC ilmen 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NOES: ABSENT: ~)':;V ) 26 27 ~tJc1; ~AA/ Ordinance is hereby approved this 01/4/ , 1967. day 0 28 29 The for~goil1g /kv-8M.-/~ -;:- 30 31 32 ~ ~ 'iJ:~' -~ Mayor 0 e C ty or an rnar Approved as to form: (!ij.~ City At orney .