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Ordinance Number 149167 ORDINANCE NO. 149 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO,GRANTING A NON-EXCLUSIVE FRANCHISE FOR THE INSTALLA- TION AND MAINTENANCE OF A CABLE -TELEVISION RECEPTION SYSTEM AND ESTABLISHING REGU- LATIONS AND RATES IN CONNECTION THEREWITH 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 Times-Mirror TV Cable Company, 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 ease- ments within the incorporated limits of the City of San Juan Capis- trano, 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 hereinabove made. The said franchise and privilege shall be subordinate to any public utility existing franchise or franchise hereinafter granted or lawful nocupancy of any public highway, street, road or other. public property for the purpose of erecting, operating and maintain- ing poles, lines,sconduits, cables, gas pipe lines and other necess- ary 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 non-compliance by the possessor thereof with its terms. Ib8 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 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 signular 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 daysafterits passage as to each grantee, provided said grantee shall file with the Clerk of the City of San Juan Capis- trano 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 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 cancell- ation of the franchise granted hereunder and the loss of any invest- ment 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 169 in this ordinance. Failure to furnish the type of service as speci- fied 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 oper- ated 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 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 said excavation, 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 maintained to conform to existing. installation, that is to say, where utilities normally carried on poles are installed underground, then franchise property shall be installed underground in suitable conduits, either independently or in conjunction with existing public utilijry conduits. In the event any area should change from overhead utilities to under- ground utilities, franchise properties shall, at the time of such change, be transferred, at the expense of Grantee, to such under- ground 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 poli- tical 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 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 overhead facilities 170 authorized pursuant to this franchise shall be constructed in con- formance with General Orders of the California Public Utilities 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, con- struction or reconstruction of such highway, street or alley, or portion thereof, and there is further reserved to theCity 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 pro- perty duringtheprogress 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 aneconomical manner,and -in fccordance 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 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 construct, 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 required is 1'71 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 com- pletion 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 privilegeunderthis fran- chise, 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, construc- ted, 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 Capis- trano, 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 auth- orized hereunder. 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 standing a bond running to the City of San Juan Capistrano from a duly qualified corporate surety in the penal sum of One Thousand Dollars ($1,000.00) and conditioned that such Grantee 1"7 a shall well and 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 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 or the sum of $1,200.00 per year, whichever is the greater. Payment of the fees herein set forth 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 possession of this franchise during said preceding fiscal year, or such fract- ional fiscal yefLr, or the sum of $1,200.00 (or its fractional amount), whichever is the greater. SECTION 15. Any neglect, failure or refusal to comply with any of the conditions of this franchise, which neglect, failure or refusal shall continue for more than fifteen (15) days following notice there- of to the Grantee from the City, shall work a forfeiture hereof, and the said City, by its City Council, may thereupon declare this fran- chise forfeited, and may exclude said Grantee from further use of the public streets, alleys, highways and public places of said City under this—franchise; and said Grantee shalomthereupon surrender all rights in and to the same, and this franchise shall be deemed and 173 shall remain null, void and of no effect. Said Grantee shall immedi- ately 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 cus- tomer rates and charges, as set forth in the respective bids of the Grantees, for a period of five (5) years from and after the effect- ive 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 Granteedof 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 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 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 fran- chise 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. PASSED, APPROVED and ADOPTED this 23rd day of December, 1968. mayor o Me ulty or San Juan Capistrano ATTEST``:.. eputy City Clerk of t e uIty of San Juan Capistrano 174 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, LEONTINE M. VALLAVANTI, Deputy City Clerk of the City of San Juan Capistrano, California, do hereby certify that the attached and foregoing ordinance was duly and regularly adopted by ,the said City Council at a regular meeting thereof held on the 23rd day of December, 1968, and passed by the following vote, to wit: -- AYES: COUNCILMEN: BATHGATE, DURNFORD, FORSTER, OLIVARES and CHERMAK NOES: COUNCILMEN: NONE - ABSENT: COUNCILMEN: NONE eputy 4 City Clerk