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HomeMy WebLinkAbout1339 ORDINANCE NO. 1339 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING ARTICLE VII OF THE ARCADIA MUNICIPAL CODE BY ADDING THERETO A NEW CHAPTER 7 ENTITLED "COMMUNITY ANTENNA TELEVISION FRANCHISES." THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. That Article VII of the Arcadia Municipal Code is hereby amended. by adding thereto a new Chapter 7 entitled "Com- munity Antenna Television Franchises," the same to read as follows: ARTICLE VII. CHAPTER 7. PART 1. PUBLIC WORKS COMMUNITY ANTENNA TELEVISION FRANCHISES DEFINITIONS 7711. DEFINITIONS. For the purposes of this Chapter, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. 7711.1. CITY. "City" shall mean the City of Arcadia, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, en- larged or re-incorporated form. 7711.2. COUNCIL. "Council" shall mean the present governing bOdy of the City or any future board constituting the legislative body of the City. 7711.3. FRANCHISE. "Franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privi- lege, permit, license or otherwise to construct, operate and main- tain a Community Antenna Television system in the City. Any such authorization, in whatever term granted, shall not mean and include any license or permit required for the privilege of transacting and -1- ( a) 1339 carrying on a business within the City in accordance with the pre- ceding Chapters of this Article. ~711.4. GRANTEE. "Grantee" shall mean the person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the Council under this Chapter, and the lawful succes- sor, transferee or assignee of said person, firm or corporation. '711.5. STREET. "Street" shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, or drive, now or here- after existing as such within the City. 1711.6. PROPERTY OF GRANTEE. "Property of grantee" shall mean all property owned, installed or used by grantee in the conduct of a CATV bus~ness in the City under the authority of a franchise granted pursuant to this Chapter. 1>711.7. CATV. "CATV" shall mean a community antenna tele- vision system as hereinafter defined. ~711.7.1. COMMUNITY ANTENNA TELEVISION SYSTEM. "Community Antenna Telev~s:ton System" shall mean a system of antenna, coaxial cables, wires, wave guides, or other conductors, equipment or facil- ities designed, constructed or used for the purpose of providing television or FM radio service by cable or through its facilities as herein contemplated. CATV shall not mean or include the transmission of any special program or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as "pay television." '711.8. SUBSCRIBER. "Subscriber" shall mean any person or entity receiving for any purpose the CATV service of a grantee. ~ ------7'-'{;711.9. GROSS ANNUAL RECEIPTS. "Gross Annual Receipts" .s,....L. .0- 13"3 shall mean any and all compensation and other consideration in any form whatever, :tncluding all installation and line extension -2- 1339 charges, and any contributing grant or subsidy received directly or indirectly by a grantee from subscribers or users in payment for television or FM radio signals or service received within the City. Gross Annual Receipts shall not include any taxes on services fur- nished by the grantee imposed directly on any subscriber or user by any city, state or other governmental unit and collected by the grantee for such governmental unit. PART 2. PROCEDURES. ~721. PROCEDURES ESTABLISHED. Pursuant to Section 1400 of the Arcadia City Charter, and subject to the provisions of Article XIV of said Charter, the method of procedure in granting franchises for CATV was hereby established. ~721.1. APPLICATION FOR FRANCHISE. Application for a franchise hereunder shall be in writing, shall be filed with the City Clerk, and shall contain the information specified in the following subsections. ~721.1.1. SAME. NAME AND ADDRESS. The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main offices, major stockholders and associates, and the names and addresses of parent and subsidiary companies. '72l.1.2. SAME. STATEMENT. A statement and description of the CATV system proposed to be constructed, installed, main- tained or operated by the applicant; the proposed location of such system and its various components; the manner in which applicant proposes to construct, install, maintain and operate the same; and, particularly, the extent and manner in which existing or future poles or other facilities of other public utilities will be used for such system. -3- 1339 ~721.1.3. SAME. DESCRIPTION OF SYSTEM. A description, in detail, of the public streets, public places and proposed public streets within which applicant proposes or seeks authority to con- struct, install or maintain any CATV equipment or facilities; a detailed description of the equipment or facilities proposed to be constructed, installed or maintained therein; and the proposed spe- cific location thereof. '721.1.4. SAME. MAP OF PROPOSED AREA. A map specifi- cally showing and delineating the proposed service area or areas within which applicant proposes to provide CATV services and for which a franchise is requested. ~721.1.5. SAME. SCHEDULE OF RATES. A statement or sched- ule in a form approved by the City Manager of proposed rates and charges to subscribers for installation and services, and a copy of proposed service agreement between the grantee and its subscribers shall accompany the application. For unusual circumstances, such as underground cable required, or more than one hundred fifty (150) feet of distance from cable to connection of service to subscribers, an additional installation charge over that normally charged for installation as specified in the applicant's proposal may be charged, with easements to be supplied by subscribers. For remote, relatively inaccessible subscribers within the City, service may be made available on the basis of cost of materials, labor, and ease- ments if required by the grantee. ~721.1.6. SAME. CONTRACT. A copy of any contract, if existing, between the applicant and any public utility providing for the use of facilities of such public utility, such as poles, lines, or conduits. When any portion of the CATV system is to be installed on public utility poles and facilities, certified copies of the agreements for such joint use of poles and facilities shall be riled with the City Clerk. -4- 1339 ~721.l.. 7. SAME. AGREEMENTS. A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation with respect to the proposed franchise or the proposed CATV operation. If a franchise ls granted to a person, firm or corporation posing as a front or as the representative of another person, firm or corpora- tion, and such lnformation is not disclosed in the original applica- tion, such franchise shall be deemed void and of no force and effect whatsoever. 1>721.1.8. SAME. FINANCIAL STATEMENT. A financial state- ment prepared by a certified public accountant, or person otherwise satisfactory to the Council, showing applicant's financial status and his financial ability to complete the construction and installa- tion of the proposed CATV system. .)~ ~~ .7'15721.1.9. SAME. OTHER INFORMATION. The Council may at ~time demand, and applicant shall provide, such supplementary, ~ additional or other information as the Council may deem resonably necessary to determine whether the requested franchise should be ,granted. ~ )~~721.1.10. SAME. DECISION. Upon consideration of any ~ @_lo~'3 such application, the Council may refuse to grant the requested franchise or the Council may by ordinance grant a franchise for a CATV system to any such applicant as may appear from said applica- tion to be in its opinion best qualified to render proper and effi- cient CATV service to television viewers and subscribers in the City. The Council's decision in the matter shall be final. If favorably considered, the application submitted shall constitute and form part of the franchise as granted. -5- 1339 1721.2. FRANCHISE RENEWAL. Any franchise granted under this Chapter is renewable at the application of the grantee, in the same manner and upon the same terms and conditions as required herein for obta:ining the original franchise, except those which' are by their terms expressly inapplicable; provided, however, that the Council may at :its option waive compliance with any or all of the requirements of Section ~721.l and its subsections. ~72l.3. EFFECTIVE DATE OF FRANCHISE. No franchise granted pursuant to the provisions of this Chapter shall become effective unless and until the ordinance granting same has become effective and, in addition, unless and until all things required in this Section and Sections ~735.2, ,%735.2.1, ~735.2.2, ~735.3, 1i735.3.1 and '$735.3.2 hereafter are done and completed, all of such things being hereby declared to be conditions precedent to the effectiveness of any such franchise granted hereunder. In the event any of such things are not done and completed in the time and manner required, the Council may declare the franchise null and void. 1,1>721.3.1. SAME. ACCEPTANCE BY GRANTEE. Within twenty- five (25) days after the effective date of the ordinance awarding a franchise, or w:ithin such extended period of time as the Council in its discretion may authorize, the grantee shall file with the City Clerk his written acceptance, in form satisfactory to the City Attorney, of the franchise, together with the bond and insurance policies required by Sections 1>735.2, ~735.2.1, ';i5735.2.2, ';i5735.3, ~735.3.1 and ~735.3.2 hereafter, respectively, and his agreement to be bound by and to comply with and to do all things required of him by the provisions of this Chapter and the franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public, and shall in form and content be satisfactory to and approved by the City Attorney. -6- 1339 '721.4. MISCELLANEOUS PROVISIONS. FILING. When not otherwise prescribed herein, all matters herein required to be filed with the City shall be filed with the City Clerk. 1721.4.1. SAME. PAYMENT. The grantee shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a fran- chise pursuant to the provisions of this Chapter. Such payment shall be made within thirty (30) days after the City furnishes the grantee with a written statement of such expenses by delivery of same to the City Treasurer. '721.4.2. SAME. SERVICE. No person, firm or corporation in the existing service area of the grantee shall be arbitrarily refused service; provided, however, that the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge. ~721.5. AMENDMENT OF REGULATIONS. RESOLUTION OF INTENT. The City Council shall pass a resolution of intention describing the rules or regulations to be adopted, amended, modified, deleted or otherwise changed and set a day, hour and place for public hearing. Such resolution shall direct the City Clerk to publish the same at least once within fifteen (15) days of the passage thereof. ~721.5.1. SAME. NOTICE. The City Clerk shall cause such resolution to be published at least once in the official news- paper of the City and shall cause a copy of same to be mailed or delivered to any grantee not less than ten days prior to the time fixed for hearing thereon. ~721.5.2. SAME. DECISION. At the time for pUblic hearing or at any adjournment thereof, the City Council shall -7- 1339 proceed to hear and pass upon such evidence, comments and objections as may be presented. Thereafter, the City Council, by its resolu- tion, may adopt, amend, modify, delete, or otherwise change said rules and regulations. PART 3. STANDARD TERMS AND CONDITIONS. ~731. TERMS AND CONDITIONS. Pursuant to Section 1400 of the Arcadia City Charter, the following terms and conditions shall apply to every grant of franchise pursuant to this Chapter, whether or not expressly so stated in the ordinance granting any such fran- chise. The tenns and conditions specified in this Part shall be in addition to any terms and conditions specified in any ordinance granting a franchise pursuant to this Chapter. ~731.l. EXCLUSIVE USE OF TELEPHONE FACILITIES. When and in the event that the grantee of any franchise granted hereunder constructs, operates and'maintains a CATV system exclusively through telephone company facilities constructed, operated and maintained pursuant to a state-granted telephone franchise and offers satis- factory proof that in no event during the life of such franchise shall the grantee make any use of the_streets independently of such tele- phone company facilities, said grantee shall be required to comply with all of the provisions hereof as a "licensee" and in such event whenever the term "grantee" is used herein it shall be deemed to mean and include"licensee." ~731.2. FRANCHISE TO OPERATE. A nonexclusive franchise to construct, operate and maintain a CATV system within all or any portion of the City may be granted by the Council to any person, firm or corporation, whether operating under an existing franchise or not, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this Chapter. No provision -8- 1339 of this Chapter may be deemed or construed as to require the grant- ing of a franchise when in the opinion of the Council it is in the public interest to restrict the number of grantees to one or more. ~731.2.1. SAME. USES PERMITTED BY GRANTEE. Any fran- chise granted pursuant to the provisions of this Chapter shall authorize and permit the grantee to engage in the business of operating and providing a CATV system in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; and in addition" so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms or corpora- tions, including but not limited to any public utility or other grantee franchised or permitted to do business in the City. ~731.2.2. SAME. CHARGES. No franchise granted hereunder shall be construed as a franchise, permit or license to transmit any special program or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as "pay television," and no grantee shall directly or indirectly install, maintain or operate on any television set a coin box or any other device or means for collection of money for individual programs. ~731.~~.2.1. SAME. SAME. INSTALLATION. The grantee may make a charge to subscribers for installation or connection to its CATV system and a fixed monthly charge as filed and approved as herein provided. No increase in the rates and charges to subscribers, as set forth in the schedule filed and approved with grantee's appli- cation, may be rrlade without the prior approval of the Council ex- pressed by Ordinance. -9- 1339 ~731.2.3. SAME. LIMITATIONS OF FRANCHISE. Any fran- chise granted under this Chapter shall be nonexclusive. ~73l.2.3.l. SAME. SAME. EXEMPTION. No privilege or exemption shall be granted or conferred by any franchise granted under this Chapter except those specifically prescribed herein. ~73l.2.3.2. SAME. SAME. PRIVILEGE. Any privilege claimed under any such franchise by the grantee in any street or other public property shall be subordinate to any prior lawful occu- pancy of the streets or other public property. 1731.2.3.3. SAME. SAME. TRANSFER. Any such franchise shall be a priv:llege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without the prior consent of the Council expressed by resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, a duly executed copy of which shall be filed in the office of the City Clerk within thirty (30) days after any such transfer or assignment. The said consent of the'Council may not be arbitrarily refused; provided, however, the proposed assignee must establish financial responsibility to the satisfaction of the City Council, and must agree to comply with all provisions of this Chapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage or other hypothecation as a ,whole, to secure an indebtedness. ~731.2.3.4. SAME. SAME. TIME. Time shall be of the essence of any such franchise granted hereunder. The grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this Chapter or by any failure of the City to enforce prompt compliance. -10- 1339 ~731.;~.3.5. SAME. SAME. TRANSFER OF DUTIES. Any right or power in, or duty impressed upon, any officer, employee, depart- ment, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City. 1731.2.3.6. SAME. SAME. RECOURSE. The grantee shall have no recourse whatsoever against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this Chapter or of any franchise issued hereunder or because of its enforcement. 1731.2.3.7. SAME. SAME. SUBJECT TO REQUIREMENTS. The grantee shall be subject to all requirements of City. ordinances, rules, regulations and specifications heretofore or hereafter enacted or established. 1731.2.3.8. SAME. SAME. OBLIGATION. Any such franchise granted shall not relieve the grantee of any obligation invol~ed in obtaining pole space from any department of the City, utility com- pany, or from others maintaining poles in streets. 1I731.~!. 3.9. SAME. SAME. IN LIEU OF OTHER RIGHTS. Any franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, pos- sessed, controlled, or exercisable by grantee, or any successor to any interest of grantee, of or pertaining to the construction, operation, or maintenance of any CATV system in the City; and the acceptance of any franchise hereunder shall operate, as between grantee and the City, as an abandonment of any and all of such rights, privileges, powers, immunities, and authorities within the City, to the effect that, as between grantee and the City, any and all construction, operation and maintenance by any grantee of any CATV system in the City shall be, and shall be deemed and construed -ll- l339 in all instances and respects to be, under and pursuant to said franchise, and not under or pursuant to any other right, privilege, power, immunity, or authority whatsoever. ~731.2.3.10. SAME. SAME. CONDITION. Any franchise granted pursuant to this Chapter shall include the following condition: "The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by Ordinance of the City of Arcadia and no other purpose whatsoever." Inclusion of the foregoing statement in any such franchise shall not be deemed to limit the authority of the City to include any other reasonable condition, limitation or restriction which it may deem necessary to impose in connection with such franchise pur- suant to the authority conferred by this Chapter. ~731.2.4. SAME. DURATION OF FRANCHISE. No franchise granted by the Council under this Chapter shall be for a term longer than ten (10) years following the date of acceptance of such fran- chise by the grantee or the renewal thereof. ~731.;? . 5 . SAME. TERMINATION OF FRANCHISE. Any such franchise granted hereunder may be terminated prior to its date of expiration by the Council in the event that said Council shall have found, after a public hearing duly held after thirty (30) days' notice of any proposed termination any of the conditions in the following subsections. ~731.2.5.1. SAME. SAME. FAILURE TO COMPLY. The grantee has failed to comply with any provision of this Chapter, or has, by act or omission, violated any term or condition of any franchise or permit issued hereunder. -12- 1339 15731. ~~. 5.2. SAME. SAME. INVALID PROVISIONS. Any pro- vision of this Chapter has become invalid or unenforceable and the Council further finds that such provision constitutes a considera- tion material to the grant of said franchise. 1731. ~~. 5 .3. SAME. SAME. CITY ACQUISITION. The City acquires the CA~~ system property of the grantee. 1731. ~~. 6. SAME. FRANCHISE PAYMENTS. Any grantee granted a franchise under this Chapter shall pay to five of such franchise, a sum equal to 'bt.IiI:ll.ll.llper the City, 5% cent (~) during the life of the gross annual receipts of the grantee. Such payment by the grantee to the City shall be made annually, or as otherwise provided in the grantee's franchise, by delivery of the same to the City Treasurer. ~t-&,-7'731.~~.6.1. SAME. SAME. FINANCIAL STATEMENT. The ~<9-m3 grantee shall flle with the City, within thirty (30) days after the expiration of any city fiscal year or portion thereof during which such franchise ls in force, a financial statement prepared by a cer- tified public accountant, showing in detail the gross annual receipts, as defined hereln, of grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the City, within ten (10) days after the time for filing such statements, the sum hereinabove prescribed or any unpaid balance thereof for the calendar year or portion thereof covered by such statements. 1>731. ~~. 6.2. SAME. SAME. INSPECTION BY CITY. The City shall have the right to inspect the grantee's records showing the gross receipts from which its franchise payments are computed and the right of audit and recomputation of any and all amounts paid under this Chapter. 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 Chapter or for the performance of any other obligation hereunder. -13- 1339 '731.2.6.3. SAME. SAME. HOLD-OVER COMPENSATION. In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the consent of the City, the grantee shall pay to the City reasonable compensation and damages. ~731.3. VIOLATIONS. No person shall establish, operate or carryon the business of distributing to any persons in this City any television signals or radio signals by means of a CATV system unless a franchise therefor has first been obtained pursuant to the provisions of this Chapter, and unless such franchise is in full force and effect. 1J731.3.1. SAME. CONSTRUCTION. No person shall construct, install or maintain within any public street in the City, or within any other public property of the City, or within any privately-owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tenta- tive subdivision map approved by the City, any equipment or facili- ties for distributing any television signals or radio signals through a CATV system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this Chapter, and unless such franchise is in full force and effect. '731.3.2. SAME. UNAUTHORIZED CONNECTIONS PROHIBITED. No person, firm or corporation shall make any unauthorized con- nection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this City for the purpose .of taking or receiving television signals, radio signals, pictures, programs, or sound. ~731.3.3. SAME. INTERCEPTION PROHIBITED. No person, firm or corporation shall make any unauthorized connection. whether physicallY, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this City for the purpose of enabling himself or others to receive any television sig- nal, radio signal, picture, program or sound, without payment to the owner of said system. -14- 1339 ~731.3.4. SAME. INTERFERENCE PROHIBITED. No person, without the consent of the owner, shall wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs cr sound. 1731.4. RIGHTS RESERVED TO CITY. EMINENT DOMAIN. Nothing herein shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing herein contained shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the City's right of eminent domain. ~731.4.1. SAME. POLICE POWER. 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 any franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exer- cise of such rights or power, heretofore or hereafter enac ted or- established. ~731.4.2. SAME. DUPLICATE FRANCHISES. Neither the granting of any franchise hereunder nor any of the provisions con- tained herein shall be construed to prevent the City from granting any identical, or similar, franchise to any other person, firm or corporation, within all or any portion of the City. 13731.4.3. SAME. IMPROVED STANDARDS. There is hereby reserved to the City the power to amend any section or part of this Chapter so as to require additional or greater standards of con- struction, operation, maintenance or otherwise, on the part of the grantee. -15- 1339 15731.4.4. SAME. NON-WAIVER. Neither the granting of any franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City. ~731.4.5. SAME. SETTLEMENT OF DISPUTES. The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this Chapter and may determine any ques- tion of fact which may arise during the existence of any franchise granted hereunder. The City Manager is hereby authorized and em- powered to adjust, settle, or compromise any controversy or charge arising from the operations of any grantee under this Chapter, either on behalf of the City, the grantee, or any subscriber, in the best interest of the public. Either the grantee or any member of the public who may be dissatisfied with the decision of the City Manager may appeal the matter to Council for hearing and determination. The Council may accept, reject or modify the decision of the City Manager, and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this Chapter. '731.4.6. SAME. ADOPTION OF RULES AND REGULATIONS. The City Council may adopt additional rules and regulations consistent with the provisions of this Chapter governing the operation of CATV systems in the City and such rules and regulations shall apply to and shall govern the operations of the grantee of any franchise granted pursuant to the provisions of this Chapter. ~731.4.6.1. SAME. SAME. METHOD OF AMENDING. Pursuant to the provisions of Part 2 of this Chapter, the City Council may adopt rules or regulations or amend, modify, delete or otherwise change such rules and regulations previously adopted. -16- 1339 13731.5. EFFECT OF ANNEXATIONS. In the event any new territory shall be annexed to the City which is contiguous to only one franchise area in the City, such new territory shall become, by operation of law, a part of said franchise area immediately upon the completion of such annexation. In the event any new territory shall become annexed to the City which is contiguous to more than one franchise area in the City or is not contiguous to any franchise area, then the City Council shall determine which grantee or grantees shall serve such new territory, or whether such area may be made available to a new grantee. 1731.6. EFFECT OF PREEMPTION. In the event the Federal Communications Commission or the Public Utilities Commission of the State of California or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise hereunder, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdic- tion by the City, the jurisdiction of the City shall, to the extent so preempted or precluded, cease and no longer exist; provided, however, that the preemption or preClusion of the exercise by the City of any of :its police power shall not diminish, impair, alter or affect any contractual benefit to the City nor any contractual obligation of the grantee under any franchise issued hereunder; and in this respect, any and all minimum standards governing the opera- tion of grantee and any and all maximum rates, ratios, and charges specified herein or in any franchise issued hereunder, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the City, and any and all rights, powers, privileges and authorities of the City to determine, establish, or fix any of the same, are each and all -17- 1339 hereby declared by the City and by any grantee accepting any fran- chise hereunder to be contractual in nature and to be for the bene- fit of the City and all subscribers situated therein, and the agree- ment of grantee to accept and conform to such standards, rates, ratios, and charges is hereby declared by the City and by any grantee accept- ing any franchise hereunder to be of the most material and essential consideration for the granting of such franchise, in the absence of which, in whole or in part, the City would not grant such franchise. ~731.7. LOCAL OFFICE. The grantee shall maintain an office within the City limits or at a location which subscribers may call without incurring added message or toll charges so that CATV maintenance service shall be promptly available to subscribers. ~731.7.1. REPORTS. The grantee shall prepare and furnish to the Director of Public Works and the City Controller at the times and in the form prescribed by either of said officers, 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 rights, functions or duties of the City or any of its officers in connection with the franchise. ~731.7.2. PLANS. The grantee shall at all times make and keep in the City full and complete plans and records showing the exact location of all CATV system equipment installed or in use in streets and other public places in the City. ~731.7.3. MAPS. The grantee shall file with the Director of Public Works on or before the last day in June of each year, a current map or set of maps drawn to scale, showing all CATV system equipment installed and in place in streets and other public places of the City to the satisfaction of the Director of Public Works. -18- 1339 ~732. PERMITS. DEADLINE. Within sixty (60) days after acceptance of any franchise the grantee shall proceed with due dili- gence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, permits and approval of general architecture for buildings and other above-ground structures on private property, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly consti- tuted regulatory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities. 1732.1. CONSTRUCTION DEADLINE. Within ninety (90) days after obtaining all necessary permits, licenses and authorizations, grantee shall commence construction and installation of the CATV system. 1732.2. SERVICE DEADLINE. Within ninety (90) days after the commencement of construction and installation of the system, grantee shall proceed to render service to subscribers, and the com- pletion of the construction and installation shall be pursued with reasonable diligence thereafter, so that service to all areas desig- nated on the map accompanying the application for franchise, as pro- ~721.1 and its subsections vided in Section / hereof, shall be provided within one (1) year from the date that service was first provided. ~732.3. FAILURE TO CONSTRUCT. Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth herein, shall be grounds for termination of such franchise, under and pur- s~ant to the terms of Sections ~731.2.4, ~731.2.5, ~731.2.5.1, ~731.2.5.2 and~731.2.5.3 hereof; provided, however, that the Council in its discretion may extend the time for the commencement and com- pletion of construction and installation for additional periods in -19- 1339 the event the grantee, acting in good faith, experiences del'ays by reason of circumstances beyond his control. 7733. LOCATION OF GRANTEE'S PROPERTY. Any poles, wires, cable lines, conduits or other properties of the grantee to be con- structed or installed in the streets, shall be so constructed or installed only at such locations and in such manner as shall be ap- proved by the Director of Public Works acting in the exercise of his reasonable discretion; provided, however, that any such poles may not be erected or maintained in any public highway in which there exists or is being erected a pole line of any public or private corporation or person engaged in service to the public as an electric or telephone public utility and which pole line is in the opinion of the Director of Public Works reasonably available to the grantee (CATV Company) for use pursuant to a pole contract rental agreement. 7733.1. SAME. PUBLIC STREETS. The grantee shall not install or erect any facilities or apparatus in or on other public property, places or rights-of-way, or within any privately-owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any ten- tative subdivision map approved by the City, except those installed or erected upon public utility facilities now existing without ob- taining the prior written approval of the Director of Public Works. 7733.2. SAME. PUBLIC UTILITIES. All transmission and distribution facilities of the grantee shall be constructed and main- tained underground; provided, however, that if both electric and telephone utilities are currently served from overhead facilities, grantee may, subject to Section 7733 hereof, also construct or lease overhead facilities. In such event, whenever either an electric or a telephone utility relocates its facilities underground, grantee shall likewise relocate its facilities underground, notwithstanding any joint pole agreement or lease agreement with a utility which may remain overhead. For the purpose of this section, "underground" shall include a partially underground system, e.g. streamlining. -20- (a) 1339 Where complete undergrounding is unfeasible, in the opinion of the Director of Public Works, amplifiers and distribution pedestals in grantee's transmission and distribution lines may be placed in ap- propriate housings upon the surface of the ground, in the manner approved by the D:Lrector of Public Works. 7733.3. ZONING REQUIREMENTS. Nothing in the franchise approval shall preclude the necessity for the applicant to obtain any Conditional Use Permit, Variance, or other planning approval as contained within Article IX of this Code, for base antenna site or other major equipment locations. 7734. REMOVAL OF GRANTEE'S PROPERTY. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of six (6) months, or in the event such sys- tem or property has been installed in any street or public place without complying with the requirements of grantee's franchise or this Chapter, or the franchise has been terminated, cancelled or has expired, the grantee shall promptly, upon being given ten (10) days' notice, remove from the streets or public places all such property and poles of such system other than any which the Director of Public Works may permit to be abandoned in place. In the event of such re- moval, 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. 7734.1. SAME. ABANDONMENT. Any property of the gran tee remaining in plaCE! thirty (30) days after the termination or expira- tion of the franchise shall be considered permanently abandoned. The Director of Public Works may extend such time not to exceed an additional thirty (30) days. 7734.2. SAME. METHOD OF ABANDONMENT. Any property of the grantee to be abandoned in place shall be abandoned in such man- ner as the Director of Public Works shall prescribe. Upon perma- nent abandonment of the property of the grantee in place, the prop- erty shall become that of the City, unless grantee is a licensee -21- ( a) 1339 under a utility joint use agreement with an electric or telephone utility under which title to all property covered by the agreement is vested in or reverts to the utility and the grantee shall submit to the Director of Public Works an instrument in writing, to be ap- proved by the City Attorney, transferring to the City the ownership of such property. 7735. CHANGES REQUIRED BY PUBLIC IMPROVEMENTS. The grantee shall, at its expense, protect, support, temporarily dis- connect, relocate in the same street or other public place, or re- move from the street, street right-of-way or other public place, any property of the grantee when required by the Director of Public Works by reason of traffic conditions, public safety, street vaca- tion, 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 public agencies; provided, however, that the grantee shall in all such cases have the privileges and be subject to the obligations to abandon any property of the grantee in place, as pro- vided in Sections 7734, 7734.1 and 7734.2 hereof. 7735.1. FAILURE TO PERFORM STREET WORK. Upon failure of the grantee to commence, pursue, or complete any work required by law or by the provisions of this Chapter or by its franchise to be done in any street or other public place, within the time prescribed, and to the satisfaction of the Director of Public Works, the Director of Public Works 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 Director of Public Works to the grantee within thirty (30) days after receipt of such itemized report. 7735.2. FAITHFUL PERFORMANCE BOND. The grantee shall, con- currently with the filing of an acceptance of award of any franchise -22- (a) 1339 granted under this Chapter, file with the City Clerk, and at all times thereafter maintain in full force and effect for the term of such fran- chise or any renewal thereof, at grantee's sole expense, a corporate surety bond in a company and in a form approved by the City Attorney, in the amount of not less than Fifteen Thousand Dollars ($15,000), renewable annually, and conditioned upon the faithful performance of grantee, and upon the further condition that in the event grantee shall fail to comply with anyone or more of the provisions of this Chapter, or of any franchise issued to the grantee hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the City as a result thereof, in- cluding the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond; said condition to be a continuing obligation for the duration of such franchise and any renewal thereof and thereafter until the grantee has liquidated all of its obli- gations with the City that may have arisen from the acceptance of said franchise or renewal by the grantee or from its exercise of any privi- lege therein granted. The bond shall provide that thirty (30) days' prior written notice of intention not to renew, cancellation, or material change, be given to the City. Failure on the part of the grantee to continuously maintain the required bond in full force and effect shall be grounds for termination of such franchise, under and pursuant to the terms of Sections ~731.2.4, 1!i731.2.5, "731.2.5.1, ~731.2.5.2 and ~731.2.5.3 hereof. ~735.2.1. SAME. AMOUNT. Said bond furnished by grantee shall, in all cases, be in an amount proportionate to the value and extensiveness of the grantee's facilities in the City. The amount of -23- 1339 the bond shall be subject to annual review by the City which may, at its discretion, increase the amount if it is deemed necessary to so do for reasonable protection of the City. ~735.2.2. SAME. LIABILITY UNLIMITED. Neither the provisions of the preceding sections, nor any bond accepted by the City pursuant hereto, nor any damages recovered by the City thereunder, shall be con- strued to excuse falthful performance by the grantee or limit the lia- bility of the grantee under any franchise issued hereunder or for damages, either to the full a~ount of the bond or otherwise. ~735.3. INDEMNIFIC~TION OF CITY. The grantee shall, concur- rently with the filing of an acceptance of award of any franchise granted under this Chapter, agree to assume full liability for all injury (in- cluding death) to persons or damage to property in any way arising out of, in connection with or resulting from any of grantee's acts or omis- sions, and to defend and hold the City free and harmless, without limit, from any and all claims, demands and suits for injury (including death) to persons or damage to property in any way arising out of, in connection with or resulting from any of grantee's acts or omissions. '735.3.1. SAME. PUBLIC LIABILITY INSURANCE. The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this Chapter, furnish to the City and file with the City Clerk, and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a liability insurance policy in the amount of Five Hundred Thousand Dollars ($500,000), in a company approved by the City Manager and in a form satisfactory to the City Attorney, indemnifying and saving harmless the City, its officers and employees from and against any and all claims, demands, actions, suits, and proceedings by others, against all liability to others, including but not limited to any liability for -24- 1339 damages by reason of or arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's CATV system, and against any loss, cost, expense and damages resulting therefrom, including reasonable attorney's fees, arising out of the exercise or enjoyment of its franchise, irrespective of the amount of the comprehensive liability insurance policy required hereunder. '735.3.2. SAME. PROPERTY DAMAGE INSURANCE. The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this Chapter, furnish to the City and file with the City Clerk, and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and ex- pense, a general comprehensive liability insurance pOlicy, in protection of the City, its officers, boards, commissions, agents and employees, in a company approved by the City Manager and a form satisfactory to the City Attorney, protecting the City and all persons against liability for loss or damage for personal injury, death and property damage, occasioned by the operations of grantee under such franchise, with minimum liability limits of Three Hundred Thousand Dollars ($300,000) for personal injury or death of anyone person and Five Hundred Thousand Dollars ($500,000) for personal injury or death of two or more persons in anyone occurrence, and Two Hundred Thousand Dollars ($200,000) for damage to property re- sulting from anyone occurrence. '735.3.3. SAME. POLICY DEPOSIT. The policies mentioned in the foregoing paragraph shall name the City, its officers, boards, com- missions, agents and employees, as additional insured and shall contain a provision that a written notice of cancellation or reduction in cover- age of said policy shall be delivered to the City ten (10) days in advance of the effective date thereof; if such insurance is provided by -25- 1339 a policy which also covers grantee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. $735.4. INSPECTION OF PROPERTY AND RECORDS. At all reason- able times, the grantee shall permit any duly authorized representative of the City to examine all property of the grantee, 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 deal with the opera- tions, affairs, transactions or property of the grantee with respect to its franchise. If any such maps or records are not kept in the City, or upon reasonable request made available in the City, and if the Council shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the grantee. '735.5. OPERATIONAL STANDARDS. The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that subscribers shall receive the highest possible service. In determining the satisfactory extent of such standards the following shall be considered: 15735.5.1. SAME. UHF. That the system be installed using all band equipment capable of passing the entire VHF and FM spectrum, and that it have the further.ca~ability of converting UHF for distribution to subscribers on the VHF band. ~735.5.2. SAME. COLOR. That the system, as installed, be capable of passing standard color TV signals without the introduction of material degradation on color fidelity and intelligence. ~735.5.3. SAME. 24-HOUR OPERATION. That the system and all equipment be designed and rated for 24-hour per day continuous operation. -26- 1339 1735.5.4. SAME. SIGNAL LEVEL. That the system provides a nominal signal level of 2000 microvolts at the input terminals of each TV recei ver. ~735.5.5. SAME. NOISE RATIO. That the system signal-to- noise ratio is not less than 40 decibels. ~735.5.6. SAME. HUM MODULATION. That hum modulation of the picture signal is less than 5%. ~735.5.7. SAME. COMPONENTS. That the system use components having a VSWR of 1.4 or less. SECTION 2. The City Clerk shall certify to the adoption of this Ordinance. I HEREBY CERTIFY that the foregoing ordinance was adopted at a regular meeting of the City Council of the City of Arcadia held on the 7th day of March , 1967, by the affirmative vote of at least three Councilmen, to wit: AYES: Councilmen Arth, Butterworth, Hage and Forman NOES: None ABSENT: Councilman con~j~L City Clerk of the City of Arcadia SIGNED AND APPROVED this March ~:lL City Clerk ( SEAL) -27- 1339