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HomeMy WebLinkAbout597 Community Antenna Television System~u ORDINANCE N0. 597 AN ORDINANCE OF THE CITY OF UKIAH GRANTING P FRANCHISE TO SPANISH MOUNTAIN TELEVISION COMPANY, ITS SUCCESSORS AND ASSIGNS TO OPERATE AND MAINTAIN P COMMUNITY PNTENNA TELEVISION SYSTEM IN THE CITY: SETTING FORTH CONDITIONS P,000MPANYING THE GRANT OF FRANCHISE, PROVIDING FOR CITY REGULATION AND USE OF SUCH SYSTEM; PRESCRIBING PENALTIES FOR VIOLATION OF THE FRPNCFIISE PROVISIONS;RENUMBERING SECTION 1900 OF THE UKIAH CITY CODE AS SECTION 1860; RE- PEALING FORMER PRTICLE 2 OF CHAPTER 11 OF THE UKIAH CITY CODE; ADOPTING NEW ENACTMENT AS ARTICLE 2 of chapter 11 CF THE UKIAH CITY CODE ENTITLED "COMMUNITY ANTENNA TELEVISICN FRANCHISE"~ REPEALING PRIOR CONFLICTING ORDINANCES The City Council of the City of Ukiah does hereby ORDAIN: SECTION 1. RENUMBERING SECTICN 1900 OF THE UKIAH CITY CODE AS SECTION 1860. Section 1y00 of the Ukiah City Code entitled "Granting Franchise fo California Northwestern Railway Company" is hereby renumbered Section 1860 of said Code. SECTION 2. REPEALING FORMER PRTICLE 2 OF CHAPTER 11 OF THE UKIAH CITY CODE, Prticle 2 of Chapter 11 of the Ukiah City Code entitled "Television Service Franchise" is repealed upon the operative date of this Ordinance. SECTION 3. ADOPTION OF NEW ARTICLE 2 OF CHAPTER 11 OF THE UKIAH CITY CODE ENTITLED "COMMUNITY ANTENNA TELEVISION FRANCHISE." Article 2 of Chapter 11 of the Ukiah City Code is hereby adopted to read as follows: "ARTICLE 2 - COMMUNITY ANTENNA TELEVISION FRANCHISE". Section 1870 - Title: This Article shall be known as and may be cited as the "City of Ukiah Community Antenna Television Franchise Ordinance." (Ordinance No. 597, Sec. 3, adopted 1968). Section 1871 - Definitions: For the purposes of this Article, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatary and not merely directory. (1) "City" is the City of Ukiah (2) "Council" is the City Council of the City of Ukiah (3) "Community antenna television system", hereinafter referred to as "CATV System" or "system", means a system of coaxial cables or other electrical conduct- ors and equipment used or to be used primarily to receive television or radio signals directly or indirect- ly off-the-air and transmit them to subscribers fora fee. (4) "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. (5) "Grantee" is SPANISH MOUNTAIN TELEVISION COMPANY or anyone who succeeds SPANISH MOUNTAIN TELEVISION COMPANY, IN ACCORDANCE WITH THE PROVISIONS OF THIS FRANCHISE. (Ordinance No. 597, Sec. 3 adopted 1968). ~1 Section 1872 - Grant of Nonexclusive Authority. (a) There is hereby granted by the City to the grantee the right and privilege to construct, erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways, and public places now laid out or dedicated, and all extensions thereof, and additions thereto, in the City, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in the City of a CATV System for the inter- -- ception, sale and distribution of television and radio signals. (b) The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive and the City reserves the right to use or grant a similar use of said street, alleys, public ways and places, to any person at any time during the period of this Franchise. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1873 - Compliance with Applicable Laws and Ordinances. The grantee shall, at all times during the life of this Franchise, be subject to all lawful exercise of the police power by the City and to such reasonable regulation as the City shall hereafter provide. (Ordinance No. 597, Sec. 3 adopted 1868). S-action 1874 - Territorial Area Involved. This Franchise related to the present territorial limits of the City and to any area henceforth added thereto during the term of this Franchise. (Ordinance No. 597, S:~c. 3, adopted 1968). Section 1875 - Liability and Indemnification. (a) The grantee shall pay and by its acceptance of this Franchise the grantee specifically agrees that it will pay all damages and penalties which the City may legally be required to pay as a result of granting this Franchise. These damages or penalties shall include,but shall not be limited to, damages arising out of copyright infringements and all other damages arising out of the installation, operation, or maintenance of the CATV System authorized herein, whether or not any act or omission complained of is authorized, allowed, or prohibited by this Franchise. (b) The grantee shall remove or relocate, without expense to the City any facilities installed, used or maintained under this license if and when made necessary by any lawful change of grade, alignment or width of any public street, way, alley, or place, including the construction of any public work by the City. (c) The grantee shall pay and by its acceptance of this Franchise specifically agrees that it will pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in subsection (a) above. These expenses shall include all out-of-pocket expenses, such as attorney fees, and shall also include the reasonable value of any services rendered by the City Attorney or his assistants or any employees of the City. (d) The grantee shall maintain, and by its acceptance of this Franchise specifically agrees that it will maintain throughout the term of this Franchise liability insurance insuring the City and the grantee with regard to all damages mentioned in subparagraph (a) above in the minimum amounts of: (1) $200,000.00 for bodily injury or death to any one person, within the limit, however, of $500,000.00 for bodily injury or death resulting from any one accident. < <~ .~ .. (2) $50,000.00 for property damage resulting from any one accident, (3) $50,000.00 for the infringement of copyrights, and (4) $50,000.00 for all other types of liability (e) The grantee shall maintain, and by its acceptance of this Franchise specifically agrees that it will maintain throughout the term of this Franchise a faithful performance bond running to the City with at least two good and sufficient sureties approved by the City, in the penal sum of $50,000.00 conditioned that the grantee shall well and truly observe, fulfill, and perform each term and condition of this franchise and that in case of any breach of condition of the bond, the amount thereof shall be recoverable from the principal and sureties thereof by the City for all damages proximately resulting from the failure of the grantee to well and faithfully observe and perform any provision of this Franchise. (f) The insurance policy and bond obtained by the grantee in compliance with this section must be approved by the City Council and such insurance policy and bond, along with written evidence of payment of required premiums, shall be filed and maintained with the City Clerk of the City of Ukiah during the term of this Franchise. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1876 - Pay TV; limitations: The grantee is specifically barred from delivering television signals, direct- ly or indirectly, from any pay-television source except with the written consent of the City Council of City and then only in compliance with such terms, conditions, regulations and charges as the City may at such time impose. Any charges made by the City for any pay-television shall be in addition to any franchise or other payment required pursuant to this Article. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1877 - Color TV: The facilities used by the grantee shall be capable of distributing color TV signals, and when the signals the grantee distributes are received in color, they shall be distributed in color where technically feasible. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1878 - Signal Quality Requirements: The grantee shall: (1) Produce a picture, whether in black and white or in color, that is undistorted, free from ghost images, and accompanied with proper sound on typical standard production TV sets in good repair, and as good as the state of the art allows; (2) Transmit signals of adequate strength to produce good pictures with good sound at all outlets without causing cross-modulation in the cables or interfering with other electrical or electronic systems; (3) Except when prevented by causes or conditions beyond its control or temporary interruption of service from any cause, the grantee shall have available on atl its trunk lines a one thousand (1,000) microvolt signal with a minimum noise ratio of twenty to one (20-1). (4) Limit failures to a minimum by locating and correcting malfunctions promptly, but in no event longer than 24 hours after notice; ex- cepting in cases of major breakdowns, fires or floods beyond the control of grantee, repairs shall be made by grantee as promptly as possible but shall not be limited to 24 hours to effect repairs. (5) Demonstrate by instruments and otherwise to subscribers that a signal of adequate strength and quality is being delivered. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1879 - Operation and maintenance of System: (a) The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur ~3 -, tJ !J during periods of minimum use of the system. (b) The grantee shall maintain an office in the City, which shall be open during all usual business hours, have a listed telephone and be so operated that complaints and requests for repairs or adjustments may be received at any time. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1880 - Carriage of Signals: The grantee shall receive and distribute television and radio signals which are disseminated to the general public without charge by broadcasting stations licensed by the Federal Communications Commission, and shall dis- tribute no other signals except that the grantee may distribute weather in- formation, time, and programs originating locally of local news, local information, and of local interest. All FCC regulations shall be complied with regarding the carriage of the programing of any existing or future television broadcasting station which covers the City of Ukiah in its principal broadcasting area. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1881 - Program Alteration. All programs of broadcasting stations carried by the grantee shall be carried in their entirety as received, with announcements and advertisements and without additions. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1882 - Service to Schools. The grantee shall provide service to public school locations and teach- ing stations within the City for educational purposes upon reluest by the City and at no cost to it or to the public school system. The grantee may at its election provide similar services without cost to private schools, including parochial or other religious schools. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1883 - Emergency Use of Facilities. In the case of any emergency or disaster, the grantee shall, upon request of the City Council, make available its facilities to the City for emergency use during the emergency or disaster period. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1884 - Other Business Activities. (a) Neither the grantee hereunder nor any shareholder of the grantee shall engage in the business of selling, repairing or installing television receivers, radio receivers, or accessories for such receivers within the City of Ukiah during the term of this Franchise and the grantee shall not allow any of its shareholders to so en- gage in any such business. (b) This Franchise authorizes only the operation of a CATV system as provided for herein, and does not take the place of any other franchise, license, or permit which might be required by law of the grantee. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1885 - Safety Requirements. (a) The grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public. (b) The grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with the requirements of all applicable General Construction order of the California Public Utilities Commission and all applicable ordinances of the City of ~~ Ukiah relating to electrical construction and in such manner that they will not interfere with any installations of the City or of a public utility serving the City. (c) All structures and all times, equipment, and connections in, over, under, and upon the streets, sidewalks, alleys and public ways or places of the city, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition, and in good order and repair. (d) The grantee shall maintain a force of one or more resident agents or employees at all times and shall have sufficient em- ployees to provide safe, adequate, and prompt service for its facilities. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1886 - New Developments. It shall be the policy of the City liberally to amend this Franchise upon application of the grantee, when necessary to enable the grantee to take advantage of any developments in the field of transmission of tele- vision and radio signals which will afford it an opportunity more effective- ly, efficiently, or economically to serve its customers. Provided, however, that this Section shall not be construed to require the City to make any amendment or to prohibit it from unilaterally changing its policy stated herein. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1887 - Conditions on Street Occupancy. All transmissions and distribution structures, lines, and equipment erected by the grantee within the City shall be so located as to cause minimum interference with the proper use of street, alleys, and other pub- lic ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who join any of the said streets, alley or other public ways and places. (b) In case of disturbance of any street, sidewalk, alley, public way, or paved area, the grantee shall, at its own cost and expense and in a manner approved by the Director of Public Works replace and restore such street, sidewalk, alley, public way, or paved area in as good a condition as before the work involving such disturbance was done. (c) If at any time during the period of this Franchise the City shall lawfully elect to alter or change the location or grade of any street, sidewalk, alley, or other public way, the grantee, upon reasonable notice by the City, shall remove, relay, and relocate its wires, cables, underground conduits, manholes, and other fixtures at its own expense. (d) Flny fixture placed in any public way by the licensee shall be placed in such a manner as not to interfere with the usual travel on such public way. (e) The grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes. (f) The grantee shall have the authority with the approval of the Director of Public Works to trim trees upon and overhanging streets, alleys, sidewalks, and public ways and places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, except that at the option of the City such trimming may be done by it or under its supervision and direction at the expense of the grantee. ., ~, .)i) (g) In all sections of the City where the cables, wires, or other like facilities of public utilities are placed underground, the grantee shall place its cables, wires or other like facilities underground to the maximum extent that existing technology reason- ably permits the grantee to do so. Such undergrounding of grantee's facilities shall be at grantee's sole expense. (Ordinance No. 597, Sec. 3, adopted 1968). Section 188E - Preferential or Discriminatory Practices Prohibited. The grantee shall not, as to rates, charges, service, services facilities, rules, regulations, or in any other respect, make or grant any undue pre- ference or advantage to any person, nor subject any person to any prejudice or disadvantage. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1889 - Removal of Facilities Upon Request. Upon termination of service to any subscriber, the grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request. (Ordinance No. 597, Sec. 3, adopted 1968) Section 1890 - Transfer of Franchise. The grantee shall not transfer this Franchise to another person without prior approval of the City by ordinance. (Ordinance No. 597, S'c. 3, adopted 1868). Section 1891 - Filings and Communications with Regulatory Agencies. Copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency _. having jurisdiction in respect to any matters affecting CATV operations authorized pursuant to this franchise, shall also be submitted simultaneously to the City Council. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1892 - City Rights in Franchise. (a) The right is hereby reserved to the City or the City Council to adopt, in addition to the provisions contained herein and in exist- ing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power; provided that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the rights herein granted. (b) The City shall have the right to inspect the books, records, maps, plans, income tax returns, and other like materials of the grantee at any time during normal business hours. (c) At the expiration of the term for which this Franchise is granted, or upon its termination and cancellation, as provided for herein, the City shall have the right to require the grantee to remove at its own expense all portions of the CATV system from all public wags within the City. (Ordire nce No. 597, Sec. 3, Adopted 1968). Section 1893 - Maps, Plats, and Reports. (a) The grantee shall file with the City true and accurate maps or plats of all existing and proposed installations. (b) The grantee shall file annually with the City Clerk not later than sixty days after the end of the grantee's fiscal year, a copy of its report to its stockholders (if it prepares such a report), an income statement applicable to its operations during the preceding 12 months period, a balance sheet, and a statement of its properties 3fi devoted to CATV operations, by categories, giving its investment in such properties on the basis or original cost, less applicable depreciation. These reports shall be prepared or approved by a certified public accountant and there shall be submitted along with them such other reasonable information as the City Council shall request with respect to the grantee's properties and expenses related to its CATV operations within the City. (ordinance No. 597, Sec. 3 adopted 1968). Section 1894 - Payment to the City. The grantee shall pay to the City annually on or before the 1st day of July of each year, a franchise fee equal to Two percent (2%) of the annual gross operating revenues taken in and received by it on all retail sales of television signals within the City during the preceding 12 months, for the use of this franchise. This payment shall be in addition to any other tax, license or payment owed to the City by the grantee. The percentage rate upon which the franchise fee is based shall be adjusted upwards, but not downwards, to reflect any increase in the total number of paid subscribers using grantee's service at any one time. If the total number of subscribers reaches any of the following higher levels the percentage rate shall increase for that year an d shall remain at that rate until increased further, but shall not thereafter be reduced: Number of Subscribers Percentage of Gross Annual Revenues Used Under 2,499 2,500 to 2,999 3,000 to 3,499 3,500 and over 2% 3% 4% 5% In the event of annexation by the City of Ukiah of areas which are not presently within the corporate limits of the City, both the gross re- ceipts from such area and the number of subscribers in such area shall be counted in computing the amount of franchise fee owed by grantee to City, regardless of whether or not grantee has previously had or continues to have a franchise from any other governmental body to operate in such area. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1895 - Forfeiture of Franchise. (a) In addition to all other rights and powers pertaining to the City by virtue of this Franchise or otherwise, the City reserves the right to terminate and cancel this Franchise and all rights and privileges of the grantee hereunder in the event that the grantee: (1) Violates any provision of this Franchise or any rule, order or determination of the City or City Council made pursuant to this Franchise, except where such violation, other than of Section 1895 (2), is without fault or through excusable neglect; (2) Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt;f ' (3) prtactiPctes a°ny ~f dau~ncYr odecehit pupon st~h°e c p y;t air Franchise o r (b) Such termination and cancellation shall be by ordinance duly adopted after 30 days notice to the grantee and shall in no way affect any of the City's rights under this Franchise or any provision of law. In the event that such termination and cancellation depends upon a finding of fact, such finding of fact as made by the City Council or its representative shall be conclusive. Provided, however, that before this Franchise may be terminated and cancell- ed under this Section, the grantee must be provided with an oppor- tunity to be heard before the City Council. (Ordinance No. 597, Sec. 3 adopted 1868). ~~- > Section 1896 - City's Right of Intervention. The grantee agrees not to oppose intervention by the City in any suit or proceeding to which the grantee is a party. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1897 - Further Agreement and Waiver by Grantee. The grantee agrees to abide by all provisions of this Franchise, and further agrees that it will not at any future time set up as against the City or the City Council the claim that the provisions of this Franchise are unreasonable, arbitrary, or void. (Ordinance No. 597, Sec. 3, adopted 1868). Section 1898 - Duration and acceptance of Franchise. (a) This Franchise and the rights, privileges, and authority hereby granted shall take effect and be in force from and after final passage hereof, as provided by law, and shall continue in force and effect fora term of fifteen (15) years, provided that within 20 days after the date of the pass- age of this ordinance the grantee shall file with the City Clerk its uncondi- tional acceptance of this Franchise and promise to comply with and abide by all its provisions, terms, and conditions. Such acceptance and promise shall be in writing duly executed and sworn to, by or on behalf of the grantee before a notary public or other officer authorized by law to administer oaths. (b) Should the grantee fail to comply with subsection (a) above, it shall acquire no rights, privileges, or authority under this Franchise whatever. (Ordinance No. 597, Sec. 3, adopted 1968). Section 1899 - Erection, Removal, and Common User of Poles. (a) No poles or other wire-holding structures shall be erected by the grantee. (b) Where poles or other wire-holding structures already existing for use in serving the City are available for use by the Grantee, but it does not make arrangements for such use, the City Council may require the grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the grantee are just and reasonable. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1900 - Number of Channels. The grantee's cable distribution system shall be capable of carrying at least 12 television channels. Further, the grantee shall make available upon the request of the City Council one channel for educational TV and one channel for any other non-commercial service for the benefit of the inhabitants of the City. (Ordinance No. 597, Sec. 3 adopted 1968) Section 1901 - Rates. (a) The rates and charges for television and radio signals distributed hereunder shall be fair and reasonable and no higher than necessary to meet all costs of service (assuming efficient and economical management), including a fair return on the original cost, less depreciation, of the properties devoted to such service (without regard to any subsequent sale or transfer price or cost of such properties.) (b) The City Council shall have the power, authority, and right to cause the grantee's rates and charges to conform to the provisions of subsection (a) hereof, and for this purpose, it may deny increases or order reductions in such rates and charges when it determines that in the absence of such action on its part, the grantee's rates and charges or pro posed.ircreased rates and charges will not conform to the said subsection (a). ~5 (c) By its acceptance of this Franchise the grantee specifi- cally grants and agrees that its rates and charges to its subscribers for television and radio signals shall be fair and reasonable and no higher than necessary to meet all its necessary costs of service (assuming efficient and ec~~nomical management), including a fair re- turn on the original costs, less depreciation, of its properties devoted to such service (without regard to any subsequent sale or transfer price or cost of such properties). (d) By its acceptance of this Franchise the grantee further specifically grants and agrees that the City Council shall have the power, authority, and right to cause the grantee's rates and charges to conform to the provisions of subsection (c) hereof, and for this purpose the Council may deny increases or order reductions in such rates and charges when it determines that in the absence of such action on its part, the grantee's rates and charges or proposed in- creased rates and charges will not conform to the said subsection (c). (e) however, no action shall be taken by the City Council with respect to the grantee's rates under this Section until the grantee has been given reasonable notice thereof and an opportunity to be heard by the Council with regard thereto. (f) The rates and charges authorized for service under this Franchise and shall be those set forth in the Resolution approving Schedules of T.V. Rates and Charges to be adopted at the time of adoption of this Ordinance and the same may be changed by resolution, any time after hearing. (g) If in the future, the State of California regulates the rates of the grantee for the service provided for in this Franchise to the exclusion of regulation by the City this Section shall be of no effect during such state regulation to the extent of any conflict therewith. (Ordinance No. 597, Sec. 3 adopted 1968). Section 1902 - Publication of Costs. The grantee shall assume the cost of publication of this Franchise as such publication is required by law and such is payable upon the grantee's filing of acceptance of this Franchise. SECTION 4. SEPARABILITY. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the re manning portions hereof. SECTION 5• ORDINANCES REPEALED. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. These are: Ordinance No. 466 and former Article 2 Television Service Franchise, of Chapter I1 of Division 1 of the City of Ukiah City Code, Sections 1910 through 1920 inclusive. SECTION 6. PUBLICATION; EFFECTIVE DATE. This Ordinance shall be published in the Ukiah Daily Journal as pre- scribed by law. It shall become effective 30 days from and after its adoption. PASSED AND ADOPTED this 1st day of May, 1968 by the following votes: .) :~ AYES: Councilmen Henderson, Crook, Norgard, Hill, and Mayor Scotto. NOES: None ABSENT: None s/ Donald K. Scotto MAYOR ATTEST: s/ Hattie M. Tillotson CITY CLERK CERTIFICATION I, Hattie M. Tillotson, City Clerk of the City of Ukiah and ex officio clerk of the City Council, do hereby certify the foregoing to be a true copy of Ordinance No. 597 adopted by th said City Council at a regular meeting thereof on the %.~f day of _i~ 19~. City Clerk of the City of Ukiah, California