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Resolution Number 66-1-24-2191 RESOLUTION NO. 66-1-24-2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO ORDERING PUBLICATION OF NOTICE INVITING BIDS FOR A NON-EXCLUSIVE FRANCHISE FOR THE CONSTRUCTION, INSTALLATION AND OPERATION OF TELEVISION RECEPTION AND TRANSMISSION SYSTEM WHEREAS, pursuant to Section 6001 et seq, of the Public Utilities Code and Section 53066 of the Government Code an application has been made to the City Council of the City of San Juan Capistrano, California, by The McRae Company for a non-exclusive franchise for the construction, operation and maintenance of a tele- vision reception and transmission system, along, over, under and across the public streets and highways within the incorporated limits of the City of San Juan Capistrano; and WHEREAS, the provisions of law relating to the granting of such franchise require a call for bids therefore; NOW, THEREFORE, BE IT RESOLVED AND ORDERED by the City Council of San Juan Capistrano that on Monday, the 9th day of May, 1966 at 7:30 PM at the Council Chambers of the City Hall, 31762 Camino Capistrano, San Juan Capistrano, California, be and it is hereby fixed as the time and place for the opening of sealed bids for said franchise. BE IT FURTHER RESOLVED AND ORDERED that the Clerk of this Council be and he is hereby authorized and directed to cause a Notice Inviting Bids for such franchise to be published in the Coastline Dispatch, a newspaper of general circulation, printed and published in the City of San Juan Capistrano, once each week for four successive weeks, beginning with the issue of the 6th day of April 1966. Full publication shall':be completed not less than twenty (20) nor more than thirty (30) days before the date herein set for the opening of the sealed bids. Said notice shall be substantially in the following form: NOTICE INVITING BIDS FOR A NON-EXCLUSIVE FRANCHISE FOR THE CONSTRUCTION, INSTALLATION AND OPERATION OF A TELE- VISION RECEPTION AND TRANSMISSION SYSTEM NOTICE IS HEREBY GIVEN that an application has been made to the City Council of the City of San Juan Capistrano, California, by The McRae Company, for a franchise as hereinafter described, and it is proposed by said City Council to offer for sale and grant by ordinance, to the highest bidder, a franchise on the terms and conditions hereinafter set forth. Said franchise is described, and will be granted substantially in the following terms: ORDINANCE NO. 19 AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, GRANTING TO (name of successful bidder), ITS SUCCESSOR AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, INSTALL, MAINTAIN AND OPERATE A SYSTEM OF POLES, WIRE, CONDUITS AND APPURTENANCES FOR A COMMUNITY ANTENNA TELEVISION AND FM TRANSMISSION SYSTEM IN, ALONG OR ACROSS, OVER OR UNDER THE PUBLIC EASEMENTS WITHIN SAID CITY OF SAN JUAN CAPISTRANO The City Council of the City of San Juan Capistrano, State of California, does ordain as follows: SECTION 1. The right, privilege, and non-exclusive franchise is hereby granted to (name of successful bidder), its successors and assigns, to construct, install, operate and maintain a television and FM reception and relay system, together with all wiring, poles and equipment necessary or convenient to transmit television and FM signals by coaxial cable, in, along or across, over or under the public streets, highways, alleys, public properties or public easements within the incorporated limites of the City of San Juan Capistrano, State of California; provided however, that no poles shall be erected or maintained in any public highway in which there then exists or is being erected a pole line or any public or private corporation or person engaged in service to the public as a public utility and which pole is reasonably available to the Grantee for use pursuant to a pole rental agreement; and provided further that no poles of either Grantee will be permitted which will parallel or duplicate existing pole lines of any such private or public corporation or person to which reference has been here- inabove made. The said franchise and privilege shall be subordinate to any public utility existing franchise or franchise hereinafter granted or lawful occupancy of any public highway, street, orad or other public property for the purpose of erecting, operating and maintaining poles, lines, conduits, cables, gas pipe lines and other necessary fixtures used in connection with the purpose of said existing franchise or franchises hereafter granted or any extension thereof. SECTION 2. The term of this franchise shall commence with the effective date hereof, and continue and remain in full force and effect for a term of twenty-five (25) years, or until such time as Grantee shall surrender or abandon the same, or until said franchise shall be forfeited for noncompliance by the possessor thereof with its terms. SECTION 3. (a) The word "Grantee" wherever used herein shall mean those to whom the non-exclusive franchise is granted under the terms and conditions of this ordinance, their employees, agents, successors and assigns. (b) The word "City" wherever used herein shall mean the City of San Juan 193 Capistrano, State of California, in its present form or in any later recognized, consolidated or enlarged form. (c) "Highways" wherever used herein shall mean and include public highways, streets, alleys, roads, ways or other public places, as the same now or hereafter may be dedicated to the City of San Juan Capistrano for street purposes in said City. (d) "Franchise property" as used herein shall mean all property constructed, installed, operated or maintained in any public street or highway or public place pursuant to any right of privilege granted by this franchise. (e) "Abandon" as used herein shall refer to any franchise which, for a continuous period of one (1) year, is not used by the Grantee to serve customers within the City of San Juan Capistrano. (f) Wherever the singular is used herein it shall include the plural, and the plural shall include the singular. SECTION 4. This ordinance granting said franchise shall take effect thirty (30) days after its passage as to each grantee, provided said grantee shall file with the Clerk of the City of San Juan Capistrano a written acceptance thereof within thirty (30) days after its passage. Failure to file such written acceptance and to comply with the bonding provisions hereinafter set forth within such time shall make the franchise void and of no effect as it effects such Grantee. Grantee shall, upon acceptance of the franchise, immediately commence work towards establi- shing, constructing, installing and maintaining such television transmission system and shall diligently prosecute the same to completion. Failure to do so shall work as a cancellation of the granchise granted hereunder and the loss of any investment made hereunder. Whether or not sufficient work is begun and whether or not the work is prosecuted with diligence shall be decided by the City Council after hearing thereon at which Grantee may be heard. This franchise and privilege is granted and shall be held and enjoyed only under the provisions prescribed by law and those contained in this ordinance. Failure to furnish the type of service as specified in its bid shall be further grounds for the cancellation of any franchise granted hereunder to any Grantee. SECTION 5. All franchise property to be constructed and operated under this franchise shall be built in a good and workmanlike manner and of good material, and any and all poles or conduits laid, located or maintained under said franchise shall be so placed as not to interfere with the use of said public highways for public purposes. In constructing, installing, repairing and maintaining the franchise property, lines, poles and conduits, the Grantee shall made and backfill all excavations in such manner and way as to leave the surface of the highways in as good condition as it was prior to said excavation, as well as to conform to the statutes of the State of California, and ordinances of the City of San Juan Capis- trano, including, but not limited to, Article 3, Division 3, Title 6 of the Codified Ordinances of the County of Orange as they now exist or may hereafter be amended. All franchise property shall be erected, installed and maintained to conform to existing installations; that is to say, where utilities normally carried on poles are installed underground, then franchise property shall be installed under- ground in suitable conduits, either independently or in conjunction with existing public utility conduits. In the event any area should change from overhead utilities to underground utilities, franchise properties shall, at the time of such change, be transferred, at the expense of Grantee, to such underground facilities. SECTION 6. Whenever any portion of the territory covered by this franchise shall be annexed to, or otherwise become a part of any municipal corporation, or of any other county, or of any other political subdivision of the State of California, the,rights reserved under this franchise to the City of San Juan Capistrano, or to any officer thereof shall inure to the benefits of such munici- pal corporation or county, and its appropriate officers. SECTION 7. If any construction, installation, or removal of franchise property is to be done within the public street or highway, the Grantee shall comply with the provisions of Sections 63.031 to 63.0329, inclusive, of the Codified Ordinances of the County of Orange, as they now exist or may hereafter be amended. All overheadfacilities authorized pursuant to this franchise shall be constructed in conformance with General Orders of the California Public Utili- ties Commission, and its rules and regulations now in effect, or any additions or amendments thereto, hereafter adopted. SECTION 8. Grantee shall not sell, transfer or assign this franchise or any of the rights or privileges hereby granted without the prior consent of the City Council, and except by a duly executed instrument in writing filed in the Office of the City Clerk of the City of San Juan Capistrano. SECTION 9• The City of San Juan Capistrano reserves the right to improve any highway, street, alley, or other public places, or any portions thereof, over and within which this franchise is granted, including the widening, change of grade, change of alignment, construction or reconstruction of such highway, street or alley, or portion thereof, and there is further reserved to the City of San Juan Capistrano, the right to construct, reconstruct, install, repair and maintain it any such highway, street, alley, or other public places, or any portions there- of', any public improvement. If notice in writing is given to the Grantee thirty (30) days in advance of 195 the fact that work is to be done pursuant to any right reserved above in the section, specifying the general nature of the work and the area in which the same is to be performed, then the Grantee shall do all things necessary to protect its franchise property during the progress of such work, and if necessary, the Grantee shall relocate its franchise property within the highway, street, or alley to such extent, in such manner and for such period as shall be necessary to permit the performance of such work in an economical manner, and in accordance with the generally recognized engineering and construction methods, and to permit the main- tenance, operation and use of such public improvement, highway, street, or alley so improved. All of such things to be done and work to be performed by the Grantee shall be at the sole cost and, expense of the Grantee. In the event that the City of San Juan Capistrano, or any public improvement or service district within the City of San Juan Capistrano, shall hereafter con- struct, install, reconstruct or repair any bridge or artificial support in or underlying any highway, street or alley in which the Grantee's franchise property is located, and in the event that the cost of such work as may be reasonably be required is increased in order to provide for the installation, maintenance or operation of Grantee's franchise property in or on the area covered by or underlain by said bridge or other artificial support, the Grantee shall pay to the City of San Juan Capistrano, or district doing such work the full amount of such increase of cost, upon completion of such construction, installation or repair. Any damage done directly or indirectly to any public street, highway, alley or public improvement by the Grantee, in exercising directly or indirectly any right, power or privilege under this franchise, or in performing any duty under or pursuant to the provisions of the ordinance, shall be promptly repaired by said Grantee at its sole cost and expense, to the complete satisfaction of the City. SECTION 10. No franchise property shall be installed, constructed, erected or operated until plans for same are approved and a permit issued by the City Engineer of the City of San Juan Capistrano. The Grantee shall comply with any instructions of the City Council or of said City Engineer with respect to the location or relocation of any of said franchise property, and shall coordinate the location or relocation of franchise property with said City Engineer. SECTION 11. The Grantee shall hold the City of San Juan Capistrano, its authorized officers, agents and employees, harmless from and against any and all liability or loss resulting from claims .for damages by any person arising out of the acts or omissions of the Grantee, its agents or employees in the performance of any work authorized hereunder. 196 SECTION 12. The wires, cables, poles, equipment, attachments, appurtenances and appliances constructed, erected or maintained and operated under this franchise shall be used for the transmission of television and FM signals from a Master Antenna System operated by the Grantee herein, and not for the transmission of signals or electrical impulses for a subscription television system. SECTION 13. The Grantee, during the life of this franchise, shall keep on file with the Clerk of the City of San Juan Capistrano and maintain in good stand- ing a bond running to the City of San Juan Capistrano from a duly qualified corpor- ate surety in the penal sum of One Thousand Dollars ($1,000.00) and conditioned that such 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, the whole amount of the penal sum herein named shall be deemed to be liquidated damages and shall be recoverable from the principal and sureties upon said bond. Said bond shall be filed by the Grantee with the City Clerk within five (5) days after this franchise is awarded. SECTION 14. The Grantee shall, during the life of this franchise, pay to the City of San Juan Capistrano, in lawful money of the United States, two per cent (2%) of the gross annual receipts of the Grantee arising from the use, operation, or possession of this franchise. Payment of the percentage of gross receipts shall begin at once on the granting of the franchise. The Grantee shall file with the City Clerk of the City of San Juan Capistrano within three (3) months after the expiration of the City's fiscal year, or fractional fiscal year, following the effective date of this ordinance granting this franchise, and within three (3) months after the expiration of each and every fiscal year thereafter, a duly verified statement showing in detail the total gross receipts of said Grantee during the preceding fiscal year, arising from the use, operation or possession of this franchise. Within fifteen (15) days after the time for filing the aforesaid statement, the Grantee shall pay to the City Treasurer of the City of San Juan Capistrano, in lawful money of the United States, the aforesaid two percent (2%) of its gross receipts arising from the use, operation or posses- sion of this franchise during said preceding fiscal year, or such fractional fiscal year. SECTION 15. Any neglect, failure or refusal to comply with any of the con- ditions of this franchise, which neglect, failure or refusal shall continue for more than fifteen (15) days following notice thereof to the Grantee from the City, shall work a forfeiture hereof, and the said City, by its City Council, may there- upon declare this franchise forfeited, and may exclude said Grantee from further use of the public streets, alleys, highways and public places of said City under 197 this franchise; and said Grantee shall thereupon surrender all rights in and to the same, and this franchise shall be deemed and shall remain null, void and of no effect. Said Grantee shall immediately remove all franchise property from the public streets, alleys, highways and public places of said City at Grantee's sole cost and expense. SECTION 16. Each of the Grantees shall not increase its customer rates and charges, as set forth in the respective vids of the Grantees, for a period of five (5) years from and after the effective date of the franchise. Thereafter, the terms and conditions of this franchise, or any of them, including said customer rates and charges, and fees due to the City from the Grantee of the franchise, may at any time during the life of the franchise be amended or modified by the City after notice to the Grantee and hearing thereon. Under this section the Grantee may request that changes be made, Grantee shall at all timed, during the term of the franchise, keep on file with the City Clerk, a correct mailing address for purposes of notice as herein provided. A notice deposited in the United States mail addressed to the Grantee, or his assignee, at the address on file, shall constitute sufficient notice for any purpose under the franchise. SECTION 17. The provisions of this franchise and all rights, obligations and duties hereunder shall inure to and be ginding upon the Grantee, its successors and assigns. SECTION 18. The City Clerk of the City of San Juan Capistrano shall certify to the adoption of the ordinance granting this franchise and shall, before the expiration of fifteen (15) days after the passage thereof, cause the same to be published once, with the names of the members of the City Council voting for and against the same in the Coastline Dispatch, a newspaper of general circulation printed and published in said City. NOTICE IS FURTHER GIVEN that each bidder shall specify in his bid, the following; 1. (a) If an individual, his full name, address and duration of residence at such address. (b) If a partnership, the full names and addresses of all the partners, and the duration of their residence at such addresses. (c) If a corporation, the name of the corporation and the location of its principle office, together with the names and addresses of the principle officers of such corporation. 2. That the bidder desires the requested franchise for a period of twenty- five (25) years, unless otherwise provided by the terms of the franchise as granted. 3. A general description of the City area for which service will be pro- vided, and the location of the master antenna or antennas proposed to be utilized in exercising the proposed franchise. 4. A schedule of the rates and charges bidder proposes to make to each customer, and the frequency of collection. 5. The amount the bidder proposes to pay the City of San Juan Capistrano as consideration for the grant of the franchise. Cash or a certified check in said amount payable to the City of San Juan Capistrano shall be included with each bid. 6. Such proposition, terms or conditions as bidder may desire to offer or _ receive the benefit from an addition to or in conflict with terms and conditions specified in this Notice. BIDDERS ARE FURTHER NOTIFIED that: 1. The award of this franchise may be made by the City Council on the basis of quality or service, rates to the subscribers, income to the City, exper- ience and financial responsibility of the applicant plus any other considerations that will safeguard the local public interest, pursuant to Section 53066 of the Government Code. 2. The City Council reserves the right of reject any and all bids or to waive any irregularities in any bid. 3. If the applicant does not bid for the franchise and the franchise is not awarded to any person, or if the franchise is awarded to the applicant and he fails to accept it, the applicant shall pay the entire cost of the publication of the Notice of Sale. The amount of money which he deposited shall first be applied, and, if insufficient, within thirty (30) days of notice thereof, the applicant shall pay the difference to the City. 4. If the franchise is awarded to a person other than the applicant, such Grantee shall pay all publication costs to the City, and upon such payment, the City shall refund to the applicant the amount which he deposited, minus such portion thereof, if any, already refunded to him. NOTICE IS FURTHER GIVEN that sealed bids in writing will be received for said franchise up to 7:30 o'clock PM on the 9th day of May, 1966, and at the time above mentioned in the office of the City Clerk of the City of San Juan Capistrano, any and all sealed bids will be opened; and that the franchise will be struck off, sold and awarded to the person, firm or corporation making the highest and best bid therefor; that at the time of the opening of the bids any person, firm or corporation, who to the satisfaction of the City Council is responsible, present or represented, may bid for the franchise a sum not less than ten per cent (10%) above the highest cash bid therefor, and the bid so made may be raised not less than ten per cent (10%) by any otherresponsible bidder and the bidding may so continue 199 until the franchise is finally struck off, sold, and awarded to the highest or best responsible bidder therefor in lawful money of the United States. Each sealed bid shall be accompanied with cash or a certified check payable to the Treasurer of the City of San Juan Capistrano, for the full amount of the bid, and no sealed bid shall be considered unless said cash or check is enclosed therewith. Any successful bidder shall deposit at least ten per cent (10%) of the amount of his bid with the City Clerk of the City of San Juan Capistrano before the franchise is struck off to him. I£ such a successful bidder fails to make the deposit immediately, his bid shall not be received, and is void, and the franchise shall then and there be again offered for sale to the next highest or best bidder, subject to the same conditions as above mentioned. This procedures shall be had until the franchise is struck off, sold and awarded to a bidder who makes the necessary deposit of at least ten per cent (10%) of the amount of his bid as pro- vided herein. Any successful bidder shall further deposit with the City Clerk of the City of San Juan Capistrano, within twenty four (24) hours of acceptance of his bid, the remaining ninety per cent (90%) of the amount thereof. If such bidder fails to deposit said remaining ninety per cent (90%) of his bid with said City Clerk within twenty-four (24) hours after its acceptance, the award to him of the franchise shall be set aside, the deposit made by him shall be forfeited, and no further proceedings for a sale of the franchise shall be had unless it is readvertised and man duan uapisLrano STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF SAN JUAN CAPISTRANO ) ss I, ERNEST A. THOMPSON, City Clerk of the City of San Juan Capistrano, hereby certify that the foregoing is a true and correct copy of a resolution of the City Council of said City numbered 66-1-24-2, adopted by the City Council of said City on the 24th day of January, 1966, and. was so passed and adopted by the following stated vote, to wit: AYES: COUNCILMEN: BATHGATE, BUCHHEIM, CHERMAK, OLIVARES and DURNFORD NOES: COUNCILMEN: NONE ABSENT: COUNCILMEN: NONE and was thereafter on said day signed and approved by the Mayor of said Cite Cit Clerk of the City of� San Juan Capistrano