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HomeMy WebLinkAboutNS-934ORDINANCE NS-934 ADDING CHAPTER 4 TO ARTICLE VI OF THE SANTA ANA MUNICIPAL CODE TO PROVIDE FOR THE GRANTING OF FRANCHISES FOR COMMUNITY ANTENNA TELEVISION SYSTEMS AND FOR THE TEEMS, CONDITIONS, AND LIMITATIONS UNDER WHICH ANY SUCH SYSTEM SHALL OPERATE WITHIN THE CITY OF SANTA ANA, CALIFORNIA THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1: That in order to provide for the granting of franchises for Community Antenna Television Systems and for the terms, conditions, and limitations under which such systems shall operate within the City of Santa Ana, the Santa Ana Municipal Code is hereby amended by adding Chapter 4 to Article VI thereof to read in words and figures as follows: CHAPTER 4 -- FRANCHISES Part 1 -- Community Antenna Television Systems Section 6410. Definitions. For the purpose of this Part, the following words, terms, phrases, abbreviations, and the derivatives of any thereof shall have the meanings set forth herein. When not inconsistent with the context, words used in any particular tense, number, or gender include any other tense, number, and gender. The word "may" is permissive and not mandatory; the word "shall" is mandatory and not permissive: (a) "CATV" shall mean community antenna television system and shall include any and all systems, methods, facilities, and means wherein or whereby coaxial cables, wave guides, or other devices, equipment, or techniques are utilized, in whole or in part, for relaying or distributing television signals as a service or commodity as herein contemplated. "CATV" shall not include what is commonly referred to as ',pay TV." (b) "CITY" shall mean the City of Santa Ana as now or at any time delineated. (c) "CITY MANAGER" shall mean the City Manager of the City of Santa Ana, California. (d) "CITY COUNCIL" shall mean the City Council of the City of Santa Ana, California. (e) "FRANCHISE AREA" shall mean the territory in which Grantee shall be authorized to construct, maintain, and operate its system. (f) "GRANTEE" shall mean any person, firm, or corporation receiving the grant of any franchise hereunder and shall include any lawful successor to the interest of such person, firm, or corporation. (g) "STP~EET" shall mean the surface of and the space above and below any public water, thoroughfare, street, highway, way, hereditament, or other such interest or place in which there is public control or direction as to the use or occupancy thereof, which now or hereafter shall exist within the City. (h) "SUBSCRIBER" shall mean any person or other entity within the City receiving for any purpose any CATV service of any grantee. -1- Section 6411. Authority Granted by Franchise. (a) Any franchise granted pursuant to the provisions of this Part shall authorize and permit the Grantee to do the following: (1) Erect, install, construct, repair, replace, reconstruct, maintain, and retain in, on, over, under, across, and along any public street such poles, wire, cable, conductors, ducts, conduit, vaults, manholes, ampli- fiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; and so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms, or corporations, including, but not limited to, any public utility or other grantee of any franchise of this city; (2) Maintain and operate facilities and properties for the collection, transmission, conduction, amplification, conversion, and distribution of programs by use of electricity, micro-wave, or other energy source. (b) A franchise granted to provide service within the City shall authorize and permit the Grantee to solicit, sell, distribute, and make a charge to subscribers within the City for connection to the CATV system of Grantee, and shall authorize and permit the Grantee to pass over, across, or through any portion of the City in order to provide service outside the City. Section 6412. Franchise Requirements. In addition to any other franchise requirements hereunder, or made or adopted as herein provided, the following requirements shall apply to any franchise granted or renewed by the City Council under this Part. Section 6412.1. Franchise Payments; Operations Within City. The Grantee of any franchise to provide service within the City shall pay to the City, upon acceptance of such franchise, a fee certain in such amount as shall be approved by the City Council. In addition, for each period approved by the City Council, and at such times and in such manner as the City Council shall agree upon, the Grantee shall pay to the City, during the entire term of such franchise, one of the following sums as submitted in the Offer and Application for CATV Franchise and as ratified in the ordinance granting CATV franchise and franchise certificate, whichever is the greatest: (1) A fixed sum certain; or (2) A fixed percentage of the gross receipts of Grantee from subscribers within the City; or (3) A combination of (1) and (2) above. Any grantee traversing any portion of the City in order to provide service outside the City shall pay to the City such additional sums therefor at such times and in such manner as the City Council shall determine. Section 6412.2. Franchise Payments Not in Lieu of Taxes. Payments to the City by Grantee shall not be in lieu of any occupation, income, license, or property tax or similar levy, assessment, fee, or charge which would otherwise apply to and be payable by Grantee to the City, unless otherwise provided by ordinance. -2- Section 6412.3. Corporate Surety Bond Re City. Upon acceptance of such franchise, Grantee shall file with the Clerk of the Council, and shall thereafter during the entire term of such franchise maintain in full force and effect, a corporate surety bond or other adequate surety agreement in the principal amount and upon the conditions described in the specifications, for the benefit of the City. Section 6412.4. Corporate Surety Bond Re Subscribers. Upon acceptance of such franchise, Grantee shall file with the Clerk of the Council, and shall thereafter during the entire term of such franchise maintain in full force and effect, a corporate surety bond or other adequate surety agreement in the amount and upon the conditions described in the specifications, for the benefit of Subscribers. Section 6412.5. Comprehensive Liability Insurance. Upon acceptance of such franchise, Grantee shall file with the Clerk of the Council, and shall thereafter during the entire term of such franchise maintain in full force and effect, a general comprehensive liability policy of insurance providing coverage as described in the specifications. Section 6412.6. Construction, Installation, and Service Standards. (a) The City Council may from time to time establish and notify Grantee of reasonable standards governing the engineering, construction, installation, service, and maintenance of all CATV systems in the City, including bonding, grounding, clearances, cable and equipment attachments and installation, subscriber service drops, taps, connections, fuses, breakers, lightning arrestors, and other protective devices and facilities therefor. Grantee shall comply forthwith with such standards, upon notification. (b) The City shall have the right to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other facilities erected, controlled, or maintained exclusively by or for Grantee in any street, provided such use by City does not substantially interfere with the use by Grantee. (c) In the event the use of any part of the system of Grantee (1) is discontinued for any reason for a continuous period of one hundred and eighty (180) days without prior written notice to and approval by the City Manager, or (2) has been installed in any street or other area without complying with the requirements here- of, or (3) any franchise is terminated, cancelled, or shall expire, Grantee, at the option of the City and at the expense of Grantee and at no expense to the City, upon demand of the City Manager, shall promptly remove from any street or other area all property of Grantee, and Grantee shall promptly restore the street and other area from which such property has been removed to such condition as the Director of Public Works shall approve; provided, the City Manager may, upon written application therefor by Grantee, approve the abandonment of any ~f such property in place by Grantee and under such terms and conditions as the City Manager may prescribe; and upon abandonment of any such property in place, Grantee shall caused to be executed, acknowledged, and delivered to the City such instruments as the City Attorney shall prescribe and approve, transferring and conveying the ownership of such property to the City. -3- (d) Upon the failure, refusal, or neglect of Grantee to cause any work or other act required by law or hereunder to be completed properly in, over, on, or under any street within any time prescribed therefor, or upon notice given where no time is prescribed, the Director of Public Works may cause such work or other act to be completed in whole or in part, and, upon so doing, shall submit to Grantee an itemized statement of the costs thereof, and Grantee shall, within thirty (30) days after receipt of such statement, pay to the City the entire amount thereof. (e) Grantee shall be required to provide service to any person desiring to subscribe to such service in the City; provided, however, that the obligation of Grantee to provide service to isolated subscribers shall be subject to such terms and conditions as the City Council shall approve in the franchise of Grantee. (f) Unless otherwise provided in any given instance, where any time is prescribed herein for the doing or causing to be done of any act, the City Manager, for good cause, in writing, may extend any time so prescribed for two (2) additional periods of not to exceed ninety (90) days each. Section 6413. Franchise Limitations. In addition to any other franchise limitations hereunder or as herein provided, the following limitations shall apply to any franchise granted or renewed by the City Council under this Part. Section 6413.1. Nature of Franchise. Neither the granting of said franchise nor any of the provisions contained herein or in such franchise shall limit, abridge, diminish, alter, or affect the right, privilege, power, or authority of the City Council; and the City Council hereby reserves and preserves the right after the first two (2) full years to grant any identical or similar or different franchise to any person, firm, or corporation other than Grantee, either within or without the franchise area of any Grantee; provided that the City Council shall not grant any franchise hereunder containing any terms or conditions which shall be less favorable to the City, or more favorable to any Grantee, than the terms or conditions of any other franchise hereunder. Section 6413.2. Transfer of Franchise. No franchise granted hereunder shall be sold, transferred, leased, assigned, or otherwise disposed of, in whole or in part, voluntarily or involuntarily, without the prior consent of the City Council, and then only upon such terms and conditions as the City Council may prescribe. No purchaser, lessee, assignee, or recipient of any such sale, transfer, lease, or assignment, without such prior written consent of the City Council, will acquire any of the rights of the franchise holder. -4- Section 6413.3. Term of Franchise. No franchise granted or renewed by the City Council under this Part shall be for a term shorter than five (5) years, unless terminated prior to its expiration as herein provided; nor shall any such franchise granted or renewed be for an aggregate term in excess of twenty-five (25) years. Section 6413.4. No Recourse Aqainst City. Grantee shall have no recourse or remedy whatsoever against the city for any loss, cost, expense, or damage arising out of or with respect to any franchise hereunder, this Part, or the enforcement thereof. Section 6413.5. City Rules and Requlations. Grantee shall be subject to all ordinances, rules, regula- tions, and specifications of the City heretofore or hereafter established, including but not limited to those pertaining to works and activities in, on, over, under, and about streets. Section 6413.6. Prohibited Activities of Grantee. Grantee may not broadcast to subscribers any program or event for which broadcast a separate charge is made, whether by Grantee or any other person, firm, or corporation. The purpose of this provision is to preclude Grantee from engaging in that business commonly referred to as "Pay TV". Section 6414. Adoption of Rules and Regulations. At all times during the term of any franchise granted hereunder, the~City Council shall have the power to, and shall adopt and enforce, and Grantee shall conform to, rules and regulations governing and establishing reasonable standards of performance pertaining to the system of Grantee. Section 6414.1. Rates and Charqes. At the time of the granting of any franchise hereunder, the City Council shall approve and fix all rates and charges allowable to Grantee, including, but not limited to, all such rates and charges for installation of equipment; service charges for all classifications of service, including additional connections at one location; and any other rates or charges of Grantee to subscribers. No such rates or charges shall be changed at any time after the granting of a franchise, except by authority of the City Council, upon written request of the Grantee. Section 6414.2. Change of Rates or Charges: Hearing. Prior to authorizing the change of any rates or charges of Grantee to subscribers at any time after the grantingof any franchise, the City Council shall first pass a resolution of intention to do so, describing and stating any rates or charges sought to be changed and the reasons of the City Council therefor, fixing a day, hour, and place certain when and where any persons having any interest therein may appear before the City Council and -5- be heard, and directing the Clerk of the Council to cause said Resolution to be published at least once in a newspaper of general circulation within the City within fifteen (15) days of the passage thereof, and a copy thereof shall be mailed to any Grantee hereunder at least ten (10) days prior to the date specified for hearing thereon. At the time set for such hearing, or at any adjournment thereof, the City Council shall proceed to hear and pass on all presentations made before it, and the decision of the City Council thereon shall be final and conclusive. If the City Council shall find that the changing of any rates or charges of Grantee to subscribers will not be detrimental or injurious to the best interests and welfare of the subscribers and of the City, the City Council may, by resolution, authorize the change of any rates or charges of Grantee to subscribers as shall be deemed reasonable by the City Council; and such resolution shall thereupon become a part of any franchise granted hereunder and affectedthereby. Section 6414.3. Federal or State Jurisdiction. In the event the Federal Communications Commission, 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 jurisdiction by the city, the jurisdiction of the City shall 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 oblication of the Grantee under any franchise issued hereunder. In this respect, any and all minimum standards governing the operation 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 ~iparamount 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 hereby declared by the City and by any Grantee accepting any franchise hereunder to be contractual in nature and to be for the benefit 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 accepting 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. Section 6415. Offers and Applications for Franchise. All offers to construct, operate, or maintain any CATV system in this city and all applications for any franchise hereunder shall be filed with the Purchasing and Property Control Officer of the City of Santa Ana on a form approved by the City Manager. Each such offer and application shall set forth, contain, or be accompanied by, but not limited to, information required by the Instructions to Offeror-Applicant, other franchise documents, or by the City Manager. The City Manager, to make his recommenda- tions respecting such offers and applications, shall require the following: (a) Identity of Offeror-Applicant. (b) Organizational structure of Offeror-Applicant. (c) Operational plans of Offeror-Applicant. -6- (d) (e) Any other details, statements, information or references pertinent to the subject matter of such offer and application which shall be required or requested by the City Council or the City Manager or by any provisions of the Charter of the City of Santa Ana or the Santa Ana Municipal Code. An application fee in the sum of One Thousand Dollars ($1,000.), which shall be in the form of cash, certified or cashier's check, or money order, which shall apply toward the costs of studying, investigating, and otherwise processing such offer and application and which shall be in consideration thereof and not returnable or refundable in whole or in part; provided that any Offeror-Applicant who shall deliver to the Purchasing and Property Control Officer a written withdrawal of any offer and a cancella- tion of any application hereunder not later than the seventh (7th) day next following the day such offer and application is received by the Purchasing and Property Control Officer shall be entitled to have returned and refunded the sum of Seven Hundred and Fifty Dollars ($750.00), less any actual costs or expense incurred by the City by reason of such offer and application which shall exceed Two Hundred and Fifty Dollars ($250.00), the said Two Hundred and Fifty Dollars ($250.00) representing administrative expense in processing the application . Section 641B. CATV Franchise Procedure. (a) The City Council may, by advertisement or any other means, solicit and call for offers and applications for CATV franchises; may determine and fix any date upon or after which the same shall be received by the City, or the date before which the same must be received; or the date after which the same shall not be received; and may extend such date or dates and make any other determinations and specify any other times, terms, conditions, or limitations respecting the soliciting, calling for, making, and receiving of such offers and applications; provided, that the city Council shall not be required to solicit or call for such offers or applications and may receive or refuse to receive any of the same, solicited, called for, or otherwise, as the City Council may elect. (b) Offers and applications for franchise shall be prepared and submitted in the manner, time, and form as herein or otherwise provided within the franchise documents. SECTION 2: That this Ordinance shall take effect thirty (30) days from and after the date of its adoption. PASSED AND ADOPTED by the City Council of the City of Santa Ana at its regular meeting held on the 3rd day of September 1968. ATTE S T: CI~IR.K O~ ~I--I~ COUNCIl. MAYOR -7- STATE OF CALIFORNIA) COUNTY OF ORANGE ) CITY OF SANTA ANA ) SS I, DORIS M. BROWN, do hereby certify that I am the Clerk of the Council of the City of Santa Aha, California; that the foregoing Ordinance was introduced to said Council held on the 19%h day of ~, 1968, and was again considered by said Council at its regular meeting held on the ~rd day of Sep%ember , 1968, and was at said meeting passed and adopted by the following vote, to wit: AYES, COUNCILMEN: Herrin, Brooks~ Carlson, Griset, Thurman, McMichael NOES, COUNCILMEN: None ABSENT, COUNCILMEN: ~arke 1 CLERK OF THE COUNCIL -8-