HomeMy WebLinkAboutORD NO 2518ORDINANC[ NO. 2518 NEW SE~.i~S
AN
ORDINANCE OF THE CITY OF BAKERSF!ELD GRANTING TH£ NONEXCLUSiVE
RIGHT, PRIVILEGE AND FRANCHISE TO LAY A~D US~ LINES, WIRES,
COAXIAL CABL~ AND APPURTENANC£S FOR TRANSMITTING, DiSTRIBUT-
iNG AND SUPPLYING RADIO AND TELEVISION ANTENNA SERVICE ALONG,
ACROSS AND UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES
WITHIN A DESIGNATED SERVICE AR£A OF SAID CiTY OF BAKERSFIELD.
BE IT ORDAINED, by :he Council of the City of Bakersfield,
as follows:
Section l.
DEFINITIONS.
Unless it is apparent from the context that it has a different
meaning, e~¢h of the following terms, phrases, words ~nd their
derivations shall have the meaning Biven herein wherever it is
u~ed in this franchise:
(~) "City": The City above named, a municipal corporation
duly organized and existinB under and by virtue of the laws of
the State of California.
(b) "Council": The Council of the City of Bakersfield as
established in the Charter of the City of Bakersfield.
(c) "Franchise Property": All property owned, installed
or used under authority of this franchise by the Grantee.
(d) "Grantee": The corporation to which this franchise
is Branted by the Council, and the lawful successor or assignee
thereof, and which has filed with the City the .acceptance referred
to in Section 2(a) hereof.
(e) "Street": The surface of, and the space above and
below any public street, road, highway, freeway, lane, alley,
court, sidewalk, parkway or drive now or hereafter existinB as
such within the City.
(f) "Community Antenna Television System", hereinafter
referred to as "CATV": The system of conductors and equipment,.
including but not limited to antenna, microwave receptors, trans-
mitters, amplifiers, coaxial cable and related facilities utilized
for the purpose of providing to customers video and/or aural sig-
nals or other programming, data or impulses by cable or through
such facilities.
(g} "Subscribers": Any person or entity receiving for
any purpose the CATV service of Grantee herein.
{h} "Franchise Area": The area within which Grantee is.
permitted to serve subscribers under the provisions of this fran-
chise.
(i) "Operating Licensec": Any person or entity conducting
all or part of a Community Antenna Television System under license
of, or transfer from the Grantee.
(j) "Total Gross Receipts": Any and all compensation rec-
eived by the Grantee and its Operating Licensees attributable to
the operation of CATV service within the corporate limits of the
City of Bakersfield.
(k) "CATV Service": The furnishing of video and/or aural
signals or other programming, data or impulses over, through or
by ~m~eans of a CATV system.
Section Z,
NATURE AND EXTENT OF GRANT.
(~) The franchise hereby granted by the City authorizes
WARNER CABLE CORP., Grantee, to engage in the business of
operating and providing a CATV System within the city limits of
the City of Bakersfield as such limits now exist or may be here-
after established.
(b) Notwithstanding that the Grantee shall hold a valid,
subsi~Lln9 franchise from the County of Kern, which authorizes
the operation of a CATV system by the Grantee in areas in which
either now are a part of or may hereafter become a part of the
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City, the rights of the Grantee as to its operations in all
portions of the City shall, from and after the effective date
hereof, be governed by this franchise rather than the franchise
heretofore granted by the County of Kern.
{c) in the exercise of its rights under the franchise
hereby granted, the Grantee may do all things reasonably necessary
to the installation and operation of its CATV System not prohi-
bited hereunder or by law, including but not limited to the
following:
1. To erect, install, construct, replace, repair,
reconstruct, maintain and retain; either on supporting
structures or underground;
a. television antenna, supporting structures and
appurtenances in such streets or other public
places as may be authorized by the Director of
Public Works, and
b. poles, wires, cable, coaxial cable, conductors,
ducts, conduit, vaults, manholes, amplifiers,
appliances, attachments, and other property as
may be necessary and appurtenant to the CATV
System, within, under,
and other areas within
designated herein and,
along and across streets
the franchise area
in addition, so to use,
operate and provide similar properties rented or
leased from other persons, firms or corporations
for such purpose; and
2. To maintain and operate said franchise properties
for the collection, transmission, amplification and distri-
bution of electrical or radiant energy for television and
radio reception; and
3. To provide,
rented or leased from
for such purpose; and
4. To engage in
sale
use and operate similar properties
other persons, firms or corporations
the business of the distribution and
of such energy to subscribers within the city limits
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of the City of Bakersfield as they now are and as they
may become.
{d) The Grantee shall not engage directly or indirectly
in the business of selling, leasing or renting television or
other receivers which make use of signals transmitted by its
system, nor sh&11 the Grantee engage in the repair of such
receivers or the sale of parts for the same, except as may be
necessary to provide its programming and its other services
to its subscribers and to maintain normal system operations.
If the Grantee is a corporation, partnership, or other assoc-
iation of natural persons, this prohibition shall likewise
upply to the officers and directors of the Grantee, to general
and lil~lited partners of any partnership Grantee, and to any
person or combination of persons who own, hold or control more
than 5% of the corporate stock or other evidence of ownership
of the Grantee, and shall likewise apply to any affiliated
or subsidiary corporation owned or controlled by the Grantee
or by its officers, directors or stockholders, and shall like-
wise apply to any corporation or entity which acts in the
capacity of a holding company or controlling company of the
Grantee.
(e) Grantee shall deliver to its subscribers within
the franchise area such signals as may be required froin time
~o ti~le by the rules and regulations of the Federa') Communi-
cations Co~)lmission.
{f) All signals delivered by Grantee to its subscribers
within the franchise area shall be of at least as high a quality
as m~y be required from time to time by the rules and regulations
of the Federal Communications Comn~ission.
Section 3.
DURATION OF GRANT.
(~) This franchise
(31st)
shall be effective on
day after the enactment of this ordinance,
the thirty-first
provided the
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Grantee has filed with the City Clerk within twenty (20) days
after such date of en&ctment a written instrument, addressed
to the Council, accepting this franchise and agreeing to comply
with all of the provisions hereof.
(b} The term of this franchise shall be eighteen (18) years
commencing on the effective date hereof.
(c) Grantee shall have the right to apply for renewal
of its franchise for an additional period of seventeen (17)
years froin and after the expiration of the original term herein
set forth, upon the same terms and conditions as herein contained,
by written notice to the City, given not less than ninety (90)
days and not more than one-hundred eighty (180) days before the
expiration of such original
unless the City shall find,
subsequent full due process
default under the terms hereof
its ability to provide service
required.
term. Such renewal shall be granted
after thirty (30) days notice and a
hearing, that the Grantee is in
in a manner that materially affects
to its subscribers as hereby
(d) This franchise may be terminated
by the City Council in the event the Council shall
after thirty (30} days notice and a subsequent full
herring, that:
1. The Grantee fails to comply with any
in whole or in part
have found,
due process
material
provision hereof and has not made a
CO~)ply within the thirty {30) day notice
2. The City purchases the property
as provided by law.
reasonable attempt to
period; or
of the Grantee,
Section 4.
iNTERPRETATION.
Unless otherwise specifically prescribed herein, the
following provisions shall govern the interpretation and
construction of this franchise;
{a) When not inconsistent with the context, words used
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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 provision hereof by any failure of the City to enforce prompt
compliance with the same or any other provision.
{c) Any right or power conferred, or duty imposed upon
any officer, employee,
to transfer by operation of law to any other
department or board of the City.
(d} The Grantee shall have no recourse
the City for any
any provision or
merit thereof.
(e) This
requirement of
department or board of the City is subject
officer, employee,
whatsoever against
loss, cost, expense or damage arising out of
requirement of this franchise or the enforce-
franchise does not relieve the Grantee of any
the City Charter or of any ordinance, rule.
re~ulation or specification of the
limited to, any requirement relating to
excavation permits, or the use, removal
erty in streets.
City, including but not
street work, street
or relocation of prop-
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 existing non-CATV franchise or lawful occupancy of any
public highway~ street, road or other public propur~y for the
purpose of erecting, operating and maintaining poles, lines,
conduits, cables, gas pipe lines and other necessary
used in connection with the purpose of said existing
franchise or franchises or any extension thereof.
fixtures
non-CATV
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(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,
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.
Section 6.
RIGHTS RESERVED TO CITY.
(a) There is hereby provided
and reserved to the City
every right and power which is required to be herein reserved
or provided by any provision of any ordinance of the City which
is not inconsistent with the terms hereof or which is required
to be herein reserved or provided by any provision of the
Charter of the City. 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
uxurcise of any governmental right or power of the City.
(c) This franchise shall be nonexclusive and neither the
~ronting of this franchise nor any of the provisions contained
herein shall prevent the City from granting any identical or
similar franchise to any person or corporation other than the
Grontee, eith-~ withi~ or without the desigmated ~rud.
Section 7.
SERVICE TO BE PROVIDED.
(~) The Grantee shall, by this
franchise,
be authorized
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to provide CATV service within the franchise area. The Grantee
shall provide such service in all parts of the franchise area
presently served by it and, subject to the conditions hereafter
set forth, in all other parts of the franchise area in which no
CATV service is available from any other~¢ATV operator and in
which no CATV system is then being installed.
(b) The Grantee shall provide CATV service to those
portions of the franchise area which do not otherwise have CATV
service available and in which no such system is then being
installed as follows;
I. As to any portion of the franchise area in which
dwelling units exist or are proposed to be constructed and which
contiguous to a portion of the franchise area in which the
Grantee has installed its facilities, the Grantee shall extend
its facilities into such contiguous area so as to provide service
to its residents thereof as soon as reasonably possible.
2. As to any portion of the franchise area in which
dwelling units exist or are proposed to be constructed and which
not contiguous to any portion of the franchise area in which
the Grantee has installed its
its facilities into such area
after it is determined by the
facilities, Grantee shall extend
as soon as reasonably possible
Grantee that there are at least
one-hundred thirty (130) actual or proposed dwelling units in
such portion of the franchise area for each mile between the
boundary of such area and the boundary of the portion of the
franchise area in which the Grantee has previously installed its
facilities, if such extension of facilities is to be accomplished
by underground installation, or eighty (80) actual or proposed
dwelling units for each such mile if such extension of facilities
is to be accomplished by a~ial installation. Such measurement
shall be by the shortest route by which the facilities of the
Grantee can legally be installed between the two portions of
the franchise area.
3. As used herein, a dwelling unit shall be deemed
is
is
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"proposed" at such time as the area in which such units are to
be situated has been legally parcelled or subdivided and physically
improved by the installation of streets and utilities and the
developer of such area has given to the Grantee contractual
assurance that within two (2) years from such time, residential
or commercial structures will, in fact, be constructed upon at
least 60% of the parcels or lots so improved.
4. Nothing herein contained shall prohibit the Grantee
and any other party from contracting for the installation of
the facilities of the Grantee at a time or in an area as to which
Grantee is not then required to install its facilities or provide
service hereunder.
(c) Any conductors and equipment installed by the Grantee
after the effective date hereof, in any part of the franchise area
not previously served by the Grantee, shall utilize components
having the capability of delivering not less than thirty-five (35)
channels of video signals when coupled with a suitable converter
at the subscriber terminal.
(d) Consistent with the economic requirements and capabilities
of the Grantee which are attributable to its CATV system situated
within the franchise area, the Grantee shall use reasonable efforts
to provide in that portion of its system existing as of the effective
date hereof, such additional or replacement components as will ulti-
mately provide to Grantees entire CATV systems situated within the
franchise area, the capability of delivering not less than thirty-
five (35) channels of video signals when coupled with a suitable
converter at the subscriber terminal. In determining the nature,
extent and timing of the installation of such components, consid-
eration shall be given to the availability of programming, the
extent of subscriber demand, the cost to the Grantee and its sub-
.scribers
art.
(e)
capable
of delivering additional channels and the state of the
At any time after the Grantee has installed components
of providing, when coupled with a suitable converter
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at the subscriber terminal,
of video signals throughout
the franchise area and from
not less than thirty-five (35) channels
its entire CATV system situated within
time to time thereafter, the City
Council may require
available primarily
available primarily
channel so required
that the Grantee make one (1) such channel
for educational use and one (1) such channel
for public access. To the extent that any
is not utilized for the specified purpose,
it may be utilized by the Grantee for commercial
action by the City Council to require such channel
shall be by adoption of an appropriate regulation
Section 9 hereof.
purposes. Any
or channels
pursuant to
Section 8.
ABANDONMENT OF SERVICE.
(a) After the Grantee shall have established service pur-
suant to this franchise in any part of the franchise area, such
service shall not be suspended or abandoned unless such suspension
or abandonment be authorized by the City Council.
(b) 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
to any designated portion of the franchise area as authorized by,
or pursuant to this franchise, 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 be given by
the Grantee to each subscriber in such designated portion of
the franchise 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 reasonable terms and conditions as may be
City Council.
such service upon
prescribed by the
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Section 9.
REGULATION
The City Council
for the duration of
to reasonable rules
including the power
and charges by
shall have the power and right at all times
this franchise, to require Grantee to conform
and regulations adopted by the City Council
to regulate and establish reasonable rates
Grantee for services rendered under this franchise
and to establish reasonable rules and regulations governing tech-
nical performance of the system and the operational practices of
the Grantee, provided the same are not in conflict with any law,
rule or regulation of the State of California or the United States
or any regulatory agency thereof. The establishment of such rules
and regulations shall be discretionary with the City Council. The
City Council shall, directly or through its administrative per-
sonnel, consult with the Grantee before adopting any such rule or
regulation. Unless agreed to in writing by the Grantee, rules and
regulations shall be adopted only upon a finding by the City
Council that the public interest, convenience and necessity re-
quires such rule or regulation, such
a public hearing held after at least
the Grantee.
finding being adopted after
thirty (30 days notice to
Section lO.
LOCATION OF FRANCHISE PROPERTY.
Franchise property shall be contructed or
at such location and in such manner as shall
the Director of Public Works, acting in the
able discretion.
installed only
be approved by
exercise of reason-
Section ll.
REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY.
(a) In the event that the use of any franchise
is discontinued for any reason for a continuous period
twelve (12) months or that franchise property has been
property
of
installed
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in any street without complying with the material
of this franchise, or the franchise has
celled or has expired, the Grantee shall
the street all such property other than
requirements
been terminated, can-
promptly remove from
any which the City
Manager 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 Director of Public Works.
(b) Franchise property to be abandoned in place shall
be abandoned in such manner as the City Manager shall prescribe.
Upon permanent abandonment of any franchise property in place,
the Grantee shall submit to the City 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 own 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 Manager 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 types of
structures or improvements by governmental agencies when
acting in a governmental or proprietary capacity, or any other
st~-uctur:~ or public improvements; provided, however, that
Grantee shall, in all such cases, have the privileges and
be subject to the obligations to abandon franchise property
in place, as provided in Section ll hereof.
Section 13.
FAILURE TO PERFORM STREET WORK.
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Upon failure of the
any work required by law
and 12 hereof to be done
Grantee to commence, pursue or complete
or by the provisions of Sections ll
in any street, within the time pre-
scribed and to the satisfaction of the City Manager, the City
Manager 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 Manager to the Grantee, within
thirty (30) days after receipt of such itemized report.
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
three percent (3%) of the total gross receipts collected or
received by the Grantee in each calendar year, or portion
thereof, during the term of this franchise, from the furnish-
ing of CATV service within the franchise area.
(b} Checks for all such payments shall be made payable
to the City Treasurer, and shall be submitted to the City
Treasurer on or before April 1 of each year for the previous
calendar year or portion thereof.
{c} Each payment shall be accompanied by a statement, in
duplicate, verified by the Grantee or by a general officer or
other duly authorized representative of the Grantee, showing
in such
time to
due.
(d)
form and detail as the City Auditor may require from
time the facts material to a determination of the amount
license, fee or business tax prescribed by the City for the
period, but only to the extent of such payment.
The payment made to the City by the Grantee pursuant
suction for any calenOar year shall be in lieu of any
same
Section 15.
INDEMNIFICATION TO CITY.
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Grantee shall:
(a) Hold the City harmless of and from any and all
liabilities, claims, actions, lawsuits, causes of action and
actions before administrative or judicial tribunals of any kind
whatever arising out of any and all activities of Grantee under-
taken by it pursuant to this franchise; and
(b) Indemnify the City in full for any and all sums paid out
by the City in response to any and all liabilities, claims, etc. as
above set forth, including but not limited to, sums paid out by
said City for damages, costs of Court and attorneys fees; and
(c) Implement the foregoing in part by delivering to the
City a certificate of general public liability insurance speci-
fically including automotive vehicle coverage designating the
City, its officers, agents and employees as additional named
insureds with coverage in the amount of $500,000.00 per person,
$1,000,000.00 per occurrence and $100,000.00 property damage.
Said certificate shall be delivered to the City prior to the
commencement of any work or activity whatever under or pursuant
to this franchise. Said certificate shall further specifically
state that the coverage
and employees evidenced
coverage as to the City,
less of any other coverage, or lack
or inure to the City, its officers,
provided the City, its officers, agents
by that certificate shall be primary
its officers, agents and employees regard-
of it, which may be held by
agents or employees.
Section 16.
INSPECTION OF PROPERTY AND RECORDS.
(a) At all reasonable times the Grantee shall permit any
duly ~,~=d representative of the City Manager to ..... ~
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
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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, or upon reasonable request made
available in the City, and if the City Manager or City Attorney
shall determine that an examination thereof is necessary or
appropriate to the performance of any of his duties, then all
travel and maintenance expense necessarily incurred in making
such examination shall be paid by the Grantee.
(b) The Grantee shall prepare and furnish to the City
Manager, at the times and in the form prescribed by the City
Manager, such reports with respect to its operations, affairs,
transactions or property as may be reasonably necessary or
appropriate to the performance of any of the duties of the
City Manager
may include, but are not
records and plans of all
franchise service area.
in connection with this
limited to,
facilities
franchise. Such reports
a complete set of as-built
installed within the
Section 17.
AUTHORITY FOR GRANT.
Notwithstanding any
this franchise
Charter of the
other provisions contained herein,
is granted solely and exclusively under the
City of Bakersfield and under no other authority.
Section 18.
PUBLIC SERVICE DROPS.
The Grantee shall provide, free of charge, on basic
CATV video service drop and basic CATV video service for
each public and non-profit private school, city police and fire
station, city recreation center, and other municipal building
designated by the City Council, provided that such locations
are passed by transmission cable of the Grantee maintained for
the service of paying subscribers.
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Section 19.
This ordinance shall be posted in accordance with the City
Charter provisions and shall become effective thirty (30) days
from and after the date of its passage.
.......... o0o ..........
I HEREBY CERTIFY that the foregoing Ordinance was passed
and adopted by the Council of the City of Bakersfield at a regular
meeting thereof held on the 29th day of August , 1979, by
the following vote:
CIT ficio Clerk of the
Council of the Ci~cy of Bakersfield
APPROVFO this 29t~/day of August
M~OP of ~be City of Bakersfield
, 1979
APPROVED as to form:
CITY ATTORNEY of the ~y of Bakersfield
Affihav ! of osting ( rh uanres
STATE OF CAL1FORN1A, f
County of Kelq~ ss.
H. E. BERGEN, being duly sworn, deposes and says:
That he is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and
that or~ ...........................~..u...g..u..~.~...~.~ ....................................................................19_~?... he posted on the Bulletin Board
at the City Hall, a full, true and correct copy of an ordinance passed by the Council of said City
at a meeting thereof duly held on ......... .~.~g...u....s....t......~.~.~ ..........................................., 19....~..~, which ordinance
was numbered... 251.8 ................. New Series, and entitled:
AN ORDINANCE OF THE CITY OF BAKERSFIELD GRANTING
THE NONEXCLUSIVE RIGHT, PRIVILEGE AND FRANCHISE
TO LAY AND USE LINE, WIRES, COAXIAL CABLE AND
APPURTENANCES FOR TRANSMITTING, DISTRIBUTING
AND SUPPLYING RADIO AND TELEVISION ANTENNA
SERVICE ALONG, ACROSS AND UPON THE PUBLIC STREETS,
WAYS, ALLEYS AND PLACES WITHIN A DESIGNATED
SERVICE AREA OF SAID CITY OF BAKERSFIELD.
Subscribed and sworn to before me this
3.Q~.. day of . A:L~.QPST ............. 19..7.9