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Ordinance Number 120ME ORDINANCE NO, 120 AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, GRANTING TO McRAE COMPANY, ITS SUCCESSOR AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, INSTALL, MAINTAIN AND OPERATE A SYSTEM OF POLES, WIRES, CONDUITS AND APPURTENANCES FOR A COMMUNITY ANTENNA TELEVISION AND FM TRANSMISSION SYSTEM IN, ALONG OR ACROSS, OVER OR UNDER THE PUBLIC STREETS, HIGHWAYS, ALLEYS, PUBLIC PROPERTIES, OR 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, andnon-exclusive franchise is hereby granted to McRae Company, its successors andassigns, 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 incor- porated limits 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 Grantoe 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 hereinabove 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, road 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 here Ifter 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" whenever used herein shall mean the City of San Juan 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 or privilege granted by this franchise. (e) ftAbandon" as used herein shall refer to any franchise which, for a continuous periof of one (1) year, is not usedby the Grantee to serve customers within the City of San Juan Capistrano. (f) Wherever the singular is usedherein it shall include the plural, and the plural shall include the singular. SECTION 4. This ordinance granting saidfranchise 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 accept- ance 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 establishing, 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 franchise 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 enjoyedonly 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 fran- chise granted hereunder to any Grantee. To clarify the nature of the franchise further, the service to be rendered shall meet the minimum requirements of zero (0) decibels at the set and shall be maintained at all times at a technical level comparable to and no less than the current development of the art in this area. The Grantee further proposes that to maintain its franchise it will make its service available to anyone within the corporate limits of the City of San Juan Capistrano at a time no later than two (2) years from the effective date of this ordinance, except in those areas where, P N in the opinion of the City Council, the remoteness of the area and the sparcity of the demand for service justifies a variance from suchrequirement. Grantee further represents that it will provide an acceptable picture upon any properly working television set to which the service is supplied. SECTION j. All franchise property to be constructed and operated under this franchise shall be built in a good andworkmanlike manner and of good material, and any and all poles or conduits laid, locatedor 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 fran- chise property, lines, poles and conduits, the Grantee shall make 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 saidexcavation, as well as to conform to the statutes of the State of California, and ordinances of the City of San Juan Capistrano, 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 maintainedto conform to existing installations; that is to say, where utilities normally carriedon poles are installed underground, then franchise property shall be installed under- ground in suitable conduitsi either independently or in conjunction with existing public utility conduits. In the event any area should change from overhead utili- ties 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 municipal corporation -. or county, and itstappropriate 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 Codi- fied Ordinances of the County of Orange, as they now exist or may hereafter be amended. All overhead facilities authorizedpursuant to this franchise shall be constructed in conformance with General Orders of the California Public Utilities Commission, and its rules and regulations now in effect, or any additions or amend- ments thereto, hereafter adopted. �3 SECTION 8. Grantee shall not sell, transfer or assign this franchise or any of the rights or privileges hereby grantedwithout 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 whichthis 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 in any such highway, street, alley, or other public places, or any portions thereof, any public improvement. If notice in writing is given to the Grantee thirty (30) days in advance of 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, streeti or alley to such extent, in such manner and for such period as shall be necessary to permit the per- formance of such work in an economical manner, and in accordance with the generally recognized engineering and construction methods, and to permit the maintenance, 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 andexpense 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 under- lying any highway, street or alley in which the Granthe's -franchise property is located, andin the event that the cost of such work as may be reasonably be requir- ed is increasedin 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 theordinance, shallbepromptly repairedby 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 approvedand a permit issuedby 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 loca- tion 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 andemployees, 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. SECTION 12. The wires, cables, poles, equipment, attachments, appurtenances and appliances constructed, erected.or maintained andoperated under this franchise shall be used for the.transmission of television and FN 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 lifeofthis franchise, shall keep on file with the Clerk oftheCity of San Juan Capistrano andmaintain in good standing a bond running, to -the, City of San Juan Capistrano from a duly qualified corporate surety in the penal sum ofOneThousand dollars ($1,000.00) and conditioned that such Granteeshallwell ard.truly -observe, fulfill and perform each term and con- dition 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 filedby the Grantee.with the City Clerk within five (5) days after this franchise is awarded. - SECTION 14. 0.The Grantee ;shall, during the-lifeof this franchise, pay to the City of San Juan Capistrano, in lawful money of the United States, two percent (2i,) 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 aftertheexpiration of the City's fiscal year, or fractional fiscal year, following theeffectivedate of this ordinance granting this franchise, and within three (3) months after the expiration of each and every fiscal year thereafter, a dulyverifiedstatement showing in detail the total gross receipts of said Grantee during the preceding fiscal year, arising from the use, operation or 85} 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 possession 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 Gr¢ntee from further use of the public streets, alleys, highways and public places of said City under 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 bids 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 times, during the term of the franchise, keep on file with the City Clerk, a correct mailing addressfor 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 binding 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. M PASSED, APPROVED and ADOPTED this 27th day of June, 1966. Mayor of the City of San Juan Capistrano ATTEST: City Clerk of the City of San Juan Capistrano _ STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, ERNEST A. THOMPSON, City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing and attached ordinance was finally passed, approved and adopted by the City Council of the City of San Juan Capistrano at the regular meeting thereof held on the 27th day of June, 1966. AYES: COUNCILMEN: DURNFORD, BATHGATE, FORSTER and OLIVARES NOES: COUNCILMEN: BUCHHEIM ABSENT: COUNCILMEN: NONE City Clerk of the City of San Juan Capistrano