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HomeMy WebLinkAboutReso 1964-3320RESOLUTION NO. 3320 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA OF INTENTION TO GRANT FRANCHISE FOR COMMUNITY TELEVISION AERIAL SERVICE TO AREA TELEVISION ANTENNA, INCORPORATED The City of Chula Vista does hereby resolve as follows: 1. The City Council hereby gives notice of its intention to grant a franchise to AREA TELEVISION ANTENNA, INCORPORATED for communication facility consisting of television antenna service to residents of the City of Chula Vista. 2. Such franchise will be granted upon the terms and conditions as set forth in the proposal attached hereto, marked Exhibit "A" and incorporated herein by this reference thereto. 3. Tuesday, the 17th day of March, 1964, in the Council Chamber of the City of Chula Vista at the hour of 7:00 P.M. is set as the day, hour and place when and where any persons having any interest therein or any objection to the granting thereof may appear before the City Council and be heard thereon. 4. The City Clerk shall publish this Resolution at least once in the official newspaper at least ten days prior to the date of hearing. ' ~. ADOPTED AND APPROVED by the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA, this 1$th day of February , 19~, b~- the following vote, to-wit: AYES: COUNCILMEN McMains, McAllister, Menzel, DeGraaf NAYES: COUNCILMEN None ABSENT: COUNCILMEN Smith r ,~ ; s- Mayor of the City of la Vista r ATTEST ~, mac.-c.~-c,z. - ~ ~~~ Cit Clerk y STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, KENNETH P. CAMPBELL, City Clerk of the City of Chula Vista, California, DO HEREBY CERTIFY that the above and foregoing is a full, tnue and correct copy of , and that the same has not been amended or repealed. DATED; City Clerk EXHIBIT "A" SECTION 1. DEFINITIONS. Unless it is apparent from the context that it has a different meaning, each of the following terms, phrases, words, and their derivations shall have the meaning given herein wherever it is used in this franchise. (a) "City": The City above named, a municipal corporation of the State of California, in its present incorporated form, or in any later reorganized, consolidated, enlarged or re- incorporated 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 owned, installed, or used 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(a) and 15 hereof. (e) "Street": The surface of, and the space above and be- low any public street, road, highway, freeztay, lane, alley, court, sidewalk, parkway, or drive, now or hereafter exist- ing as such within the City. (f) "Community Antenna Television System", hereinafter referred to as 'CATV': Coaxial cables, wave guides, or other conductors and other conductors and equipment for providing television, radio or other service by cable or through its facilities as herein contemplated. CATV applies only to the transmission of general broadcast programs. CATV does not include the transmission of paid television programs, and the transmission of said paid television programs is here- by specifically excluded from this franchise ordinance. (g) "Subscribers": Any person or entity receiving for any purpose the CATV service of Grantee herein. (h) "Operating Licensee": Any person or entity conduct- ing all or part of a Community Antenna Television System under license of, or transfer from the Grantee pursuant to Section 5(c). (i) "Total Gross Receipts": Any and all compensation and other consideration received directly by the Grantee and its Operating Licensees from the operation of its CATV service within the corporate limits of the City of Chula Vista as such corporate limits now exist or may be here- after established. FRANCHISE GRANT SECTION 2. NATURE AND F~CTENT OF GRANT. The Franchise hereby granted by the City authorizes Area Television Antenna, Inc., Grantee, to engage in the business of operating and providing a CATV System within the City subject to the following provisions herein contained: (a) To erect, install, construct, replace, repair, recon- struct, maintain and retain, (1) television antenna, supporting structures and appurtenances in such streets or other public places as may be authorized by the City Engineer, and (2) poles, wires, cable, coaxial cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appli- ances, attachments, and other property as may be neces- sary and appurtenant to the CATV System, in, along and across streets within the City, and, in addition, so to use, operate and provide similar properties rented or leased from other persons, firms, or corporations, for such purpose; and (b) To maintain and operate said franchise properties for the collection, transmission, amplification and distribution of electrical or radiant energy for television and radio re- ception; and (c) To provide, use and operate similar properties rented or leased from other persons, firms or corporations for such purpose; and (d) To engage in the business of the distribution and sale of such energy to subscribers within the City. SECTION 3. DURATION OF GRANT. (a) This franchise shall be effective on the thirtieth (30) day after the adoption of this ordinance, provided the Grantee has filed with the City Clerk, within twenty (20) days after such effective date, a written instrument, addressed to the Council, accepting this franchise and agreeing to comply with all of the provisions hereof. (b) This franchise shall expire thirty (30) 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: (1) the Grantee fails to comply with any provision hereof; (2) any provision hereof becomes invalid or unenforce- able and the Council expressly finds that such provision constituted 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 proceedings. (3) the City purchases the property of the Grantee. (c) The franchise granted hereunder shall not become ef- fective until the happening of the following events: (1) the written acceptance hereof by the Grantee accepting all of the terms and conditions of this franchise and agreeing to be bound thereby, delivered to the City Clerk in a form approved by the City At- torney. (2) the filing of surety bond or bonds and insurance policies with the City Clerk as required by Section 15 and Section 16 of this franchise, in the amount specified therein, and in a form satisfactory to the City Attorney. Failure of Grantee to comply with the conditions precedent as stated hereinabove in Section 3(c) within twenty (20) days after such effective date shall, at the option of the City, cause this franchise to be forfeited. (d) The Grantee shall file with the City Clerk any contract between it and the Pacific Telephone and Telegraph Company, the San Diego Gas & Electric Company, or such other or additional utility com- panies wherein Grantee is granted the right to use the facilities of such utility or utilities in its operations. CONSTRUCTION OF FRANCHISE SECTION 4. INTERPRETATION. Unleas otherwise specifically prescribed herein the following provisions shall govern the interpretation and construc- tion of this franchise: (a) 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. (b) Time is of the essence of this franchise. The Grantee shall not be relieved of its obligation to promptly comply with any pro- vision hereof by any failure of the City to enforce prompt compli- ance with the same or any other provision. (c) Any right or power conferred, or duty imposed upon any officer, employee, department, or board of the City, is subject to transfer by operation of law to any other officer, employee, department or board of the City. (d) The Grantee shall have no recourse whatsoever against the City for any loss, cost, expense, or damage, arising out of any provi- sion or requirement of this franchise or the enforcement thereof. (e) This franchise does not relieve the Grantee of any requirement of the City or of any ordinance, rule, regulation or specification of the City, including, but not limited to, any requirement relat- ing to street work, street excavation permits, or the use, removal or relocation of property in streets. SECTION 5. LIMITATIONS UPON GRANT. (a) No privilege or exemption is granted or conferred by this franchise except those specifically prescribed herein. (b) The said franchise and privilege shall be subordinate to any public utility existing franchise or franchise hereafter granted or lawful occupancy of any public highway, street, road or other pub- lic property for the purpose of erecting, operating and maintaining poles, lines, conduits, cables, gas pipe lines and other necessary fixtures used in connection with the purpose of said existing fran- chise or franchises or franchises hereafter granted or any exten- sion thereof. (c) This franchise is a privilege to be held in personal trust by the original Grantee. It cannot in any event be transferred in part, and it is not to be sold, transferred, leased, assigned, or disposed of as a whole, either by forced sale, merger, consolida- tion, 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 re- quired for any transfer in trust, mortgage, or other hypothecation, as a whole, to secure an indebtedness. SECTION 6. RIGHTS RESERVID TO CITY. (a) There is hereby provided and reserved to the City every right and power which is required to be herein reserved or pro- vided by any provision of any ordinance or resolution 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. (b) Neither the granting of this franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City. (c) This franchise shall be non-exclusive and neither the grant- ing of this franchise nor any of the provisions contained herein shall prevent the City from granting any identical or similar fran- chise to any person or corporation other than the Grantee, within the City or any part thereof. SECTION 7. ESTABLISHMENT OF SERVICE. Installation of a CATV System shall be commenced within one hundred and eighty (180) days after the effec- tive date of this franchise, and extensions and service pursued with due diligence thereafter. Failure to so commence and diligently pursue to com- pletion shall be grounds for termination of this franchise. SECTION 8. ABANDONMENT OF SERVICE. (a) After the Grantee shall have established service pursuant to this franchise in the franchise area, such service shall not be suspended or abandoned unless such suspension or abandonment be authorized by the City Council. (b) The Grantee shall not refuse to accept any subscriber in the franchise area unless it would not be in the public interest for the Grantee to furnish service to such subscriber. (c) Whenever the Grantee shall file with the City Council a written application alleging that public interest, convenience and necessity no longer require that the Grantee furnish service as authorized or required by, or pursuant to this franchise, in any service area, the City Council shall, at a public hearing, take evidence upon that question and shall make a finding with respect thereto. Notice of such hearing shall ire given by the Grantee to each subscriber in such area at least fifteen (15) days prior thereto. If the City Council shall find that public interest, convenience and necessity no longer require that the Grantee furnish such service, then the City Council shall, after hearing as provided herein, authorize suspension or abandonment of such service upon such reasonable terms and conditions as may be prescribed by the City Council. SECTION 9. REGULATION OF RATES AND SERVICE. (a) The City Council shall have the power to regulate and fix just and reasonable rates and service to the extent and in the manner as now or hereafter provided in the City Ordinances, and the Grantee by its acceptance of this franchise agrees to comply with and be subject to all authority now or hereafter possessed by the City, or any other regulatory body having competent juris- diction to fix just, reasonable and compensatory television sig- nal distribution rates. (b) The said CATV System shall be installed and maintained in accordance with the best accepted standards of the industry. The provisions of this subsection are a "material provision hereof" as these words are used in Section 3(b) (2) hereof. STREET WORK SECTION 10. LOCATION OF FRANCHISE PROPERTY. Franchise property shall be constructed or installed only at such locations and in such manner as shall be approved by the City Engineer, acting in the exercise of reasonable discre- tion. SECTION 11. REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY. (a) In the event that the use of any franchise property is discon- tinued 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, or the franchise has been terminated, cancelled or has expired, the Grantee shall promptly remove from the street all such property other than any which the City Engineer 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 City Engineer. (b) Franchise property to be abandoned in place shall be abandoned in such manner as the City Engineer shall prescribe. Upon permanent abandonment of any franchise property in place, the Grantee shall submit to the Chief Administrative Officer an instrument, satisfactory to the City Attorney, transferring to the City the ownership of such property. SECTION 12. 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 City Engineer 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, signal lines, and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or pro- prietary capacity, or any other structures or public improvements, provided, however, that Grantee shall in all such cases have the privileges and be sub- ject to the obligations to abandon franchise property in place, as provided in Section 8. SECTION 13. FAILURE TO PERFORM STREET vJORK. Upon failure of the Grantee to commence, pursue or complete any work required by law or by the provisions of this franchise to be done in any street, within the time pre- scribed and to the satisfaction of the City Engineer, the City Engineer may, at his option, cause such work to be done and the Grantee shall pay to the City the cost thereof in the itemized amounts reported by the City Engineer to the Grantee, within thirty (30) days after receipt of such itemized report. COMPENSATION AND GUARANTEE TO THE CITY SECTION 14. ANNUAL PAYMENTS TO THE CITY. (a) By its acceptance of this franchise, the Grantee agrees to pay to the City, annually, in lawful money of the United States, two per- cent (2%) of the total gross receipts collected or received, or in any manner gained or derived by the Grantee in each calendar year, or portion thereof, during the term of this franchise, from the prop- erties, operations, and business referred to in Section ~ hereof. (b) Checks ;for all such payments shall be made payable to the Finance Officer, and shall be submitted to him on or before March 1 of each year for the previous calendar year or portion thereof. (c) Each payment shall be accompanied by a statement, in duplicate, uerified by the Grantee or by a general officer or other duly auth- orized representative of the Grantee, showing in such form and detail as the Chief Administrative Officer may require from time to time the facts material to a determination of the amount due. (d) The payment made to the City by the Grantee pursuant to this Section for any calendar year shall be in lieu of any license, fee or business tax, prescribed by the City for the same period, but only to the extent of such payment. SECTION 15. FAITHFUL PE1tFORMANCE BOND. The Grantee shall, within five (5) days after the award of this franchise, file with the City Clerk, and at times thereafter maintain in full force and effect, an acceptable corporate surety bond, in duplicate, in the amount of FIVE THOUSAND DOLLARS ($5,000.00) effective for the entire term of this franchise, and conditioned that in the event the Grantee shall fail to comply with any one 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 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 Sections 14, 16 or 11 hereof which may be in default, 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 acceptance of this franchise by the Grantee or from its exercise of any privilege herein granted. Neither the provisions of this Section 15, 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 Grantee or to limit the liability of the Grantee under this franchise or for damages, either to the full amount of the bond or otherwise. SECTION 16. INDEI~INIFICATION TO CITY. (a) The Grantee shall indemnify the City, its officers and its em- ployees, against all claims, demands, actions, suits and proceedings by others and against all liability to others, and against any loss, cost and expense resulting therefrom, including reasonable attorneys' fees, arising out of the exercise or enjoyment of this franchise, ir- respective of the amount of the bond designated in Section 15 hereof and irrespective of the amount of the comprehensive liability insur- ance policy required hereunder. (b) Grantee agrees that at all times during the existence of this license it will maintain in force, furnish and file with the City, at its own expense, a general comprehensive liability insurance policy, in protection of City, its boards, commissions, officers, agents and employees, in a company authorized to do business in the State of California, 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 license, with minimum lia- bility limits of $100,000.00 for personal injury or death of any one person, and $300,000.00 for personal injury or death of two or more persons in any one occurrence, and $50,000.00 for damage to property resulting from any one occurrence. (c) 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 pro- vided 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. i ~ SECTION 17. INSPECTION OF PROPERTY AND RECORDS. (a) At all reasonable times, the Grantee shall permit any duly authorized representative of the City Engineer and/or the City Finance Officer 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. If any of such maps or records are not kept in the City, then upon request, they shall be made avail- able in the City. (b) The Grantee shall prepare and furnish to the City Engineer and/or the City Finance Officer, at the times and in the form pre- scribed by the City Engineer and/or the City Finance Officer, such reports, with respect to its operations, affairs, transactions or property, as may be reasonably necessary or appropriate to the per- formance of any of the duties of the City Engineer and/or the City Finance Officer in connection with this franchise. Such reports may include, but are not limited to, a complete set of as-built records and plans of all facilities installed within the City. SECTION 18. MISCELLANEOUS PROVISIONS. (a) All notices herein provided for shall be prepaid registered mail addressed to the parties as follows: TO THE CITY: The City Clerk City Hall Chula Vista, California TO THE GRANTEE: Area Television Antenna, Inc., c/o Lee Druckman 409 West Douglas Avenue E1 Cajon, California (b) The Grantee of this license shall pay to the money sufficient to reimburse it for all expenses connection with the granting of this license such $250.00; such payment shall be made within thirty the City shall furnish such Grantee with a writtei such expenses. City a sum of incurred by it in sum not to exceed (30) days after a statement of SECTION 19. This Ordinance shall be effective thirty (30) days after its adoption and the City Clerk shall certify to the adoption of this Ordi- nance and cause it to be published at least once in the Chula Vista Star-News within fifteen (15) days after its adoption.