Loading...
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 -Z- 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 -3- 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 -4- 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 -5- 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 -6- (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 -7- 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 -8- "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 -9- 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 -lO- 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 -ll- 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. -12- 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. -13- 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 -14- 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. -15- 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