Loading...
HomeMy WebLinkAboutCC Resolution 3161RESOLUTION NO. � ` &-./ RESOLUTION OF THE COUNCIL OF THE CITY OF SAN RAFAEL PROVIDING FOR THE GRANTING OF ENCROACHMENT PERMITS FOR COMMUNITY ANTENNA TELEVISION SYSTEMS IN THE CITY OF SAN RAFAEL AND PROVIDING TERMS AND CONDITIONS FOR SUCH ENCROACHMENTS AND OPERATION OF COMMUNITY ANTENNA TELE- VISION SYSTEMS. THE COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES AS FOLLOWS: Section 1. GRANT OF ENCROACHMENT PERMIT: An encroachment permit may be granted to any qualified person, firm, or corporation desiring to operate a community antenna television system in the City of San Rafael. Section 2. DEFINITIONS: For the purpose of this Resolution the following terms, phrases, words and their derivations shall have the meaning given herein: (a) "CITY": The City of San Rafael, a municipal corporation of the State of California, in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. (b) "COUNCIL": The present governing body of the City or any future board constituting the legislative body of.the City. (c) "LICENSEE": The person, corporation, or entity to whom or which an encroachment permit under this Resolution is granted by the City Council and the lawful successor or assignee of said person, corporation, or entity. (d) "STREET": The surface of, and the space above and be- low any public street, road, highway, freeway, lane, alley, way, court, sidewalk, parkway or drive, now or hereafter existing as such within the City. (e) "COMMUNITY ANTENNA TELEVISION SYSTEM": Hereinafter re- ferred to as "CATV": Coaxial cables, wave guides or other conductors and equipment for providing television and audio service by cable or through its facilities as herein contemplated. CATV shall not mean or include the transmission of any special program or event in the manner commonly known and referred to as "Pay television" transmission. (f) "SUBSCRIBERS": Any person or entity using or receiving for any purpose the CATV service of the licensee herein. (g) "ENCROACHMENT PERMIT": A nonexclusive and revocable (at any time) consent of the City of San Rafael to encroach on a public street. Section 3. USES PERMITTED BY LICENSEE: (a) Subject to the restrictions herein provided and the ordinances and laws of the City of San Rafael and all other political subdivisions, any encroachment permit granted pursuant to the pro- visions of this Resolution shall authorize and permit the licensee to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, such poles, wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to a CATV system; and, in addi- tion, so to use, operate and provide similar facilities or proper- ties rented or leased from a public utility franchised or permitted to do business in the City of San Rafael. (b) Licensee may make a charge to subscribers for connection to its CATV system, and a fixed periodic charge for transmission to them only of television and audio programs received free by the public generally at the same time from regularly licensed stations. No charge may be made to subscribers for any other transmissions directed to them. Section 4. DURATION AND TERMINATION OF ENCROACHMENT PERMIT: (a) The duration of such encroachment permit shall be at will, and may be terminated or revoked by City without cause at any time. Section 5. LIMITATIONS OF ENCROACHMENT PERMIT: (a) Any encroachment permit granted under this Resolution shall be nonexclusive. -2- (b) No privilege or exemption shall be granted or conferred by any encroachment permit granted under this Resolution except those specifically prescribed herein. (c) Any privilege claimed under such encroachment permit by the licensee in any street or other public property shall be sub- ordinate to all of City's rights in its streets and any prior lawful occupancy of the streets, or other public property. (d) Any such encroachment permit shall be a privilege to be held in personal trust by the original licensee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior consent of the City Council expressed by Resolution, and then only under such conditions as may be therein prescribed. Should the grantee be adjudicated a bankrupt, or become insolvent, or seek the benefits of any law now or hereafter in effect during the term of the encroachment permit for the financial relief of debtors, the Council may, at its election, immediately terminate all rights granted by the encroachment permit. (e) Time shall be of the essence of any encroachment permit granted under this Resolution. The licensee shall not be relieved of its obligation to comply promptly with any of the provisions of this Resolution, or by any failure of the City to enforce prompt compliance. (f) Any right or power in, or duty impressed upon, any officer, employee, department or board of the City hereunder is subject to transfer by the City to any other officer, employee, department or board of the City. (g) The licensee shall have no recourse whatsoever against the City for any loss, cost, expense or damage, arising out of any provision or requirement of this Resolution or the Resolution granting -3- an encroachment permit or their enforcement or for any governmental or proprietary act of City. (h) Licensee is subject to all requirements of the ordinances, rules, regulations and specifications of the City heretofore or hereafter enacted or established, including but not limited to, those concerning business licenses, street work, street excavations, use, removal and relocation of property within a street, and other street work. (i) Any encroachment permit granted under this Resolution or the Resolution granting the encroachment permit shall not relieve the licensee of any obligation involved in obtaining pole space from any department of the City, the utility companies, or from others maintaining poles in streets. (j) Any encroachment permit granted under this Resolution or the Resolution granting the encroachment permit shall not relieve the licensee of any obligation to obtain the necessary consents from any person or entity that may own the fee underlying any street embraced in any encroachment permit. (k) No encroachment permit granted hereunder shall in any way or to any extent impair or affect the rights of the City to acquire the property of the licensee either by purchase or by exer- cising the right of eminent domain, nor shall any encroachment permit granted hereunder ever be given any value before any court or other public authority in any proceedings of any character wherein City is attempting to acquire licensee's property. Upon the termination or revocation of the encroachment permit, City, at its election, and upon the payment in cash, currency of the United States of America of a fair valuation therefor, may purchase and take over to itself the property and plant of the licensee in its entirety; but in no case shall the value of the encroachment permit granted here- under be considered or taken into account in fixing such valuation. -4- (1) The licensee shall have no recourse whatsoever against the City, its boards, commissions, officers, agents, employees and/or contractors, for any loss, cost, expense, or damage done to licensee's property through negligence. Section 6. RIGHTS RESERVED TO THE CITY: (a) There is hereby reserved to the City every right and power which is required to be herein reserved or provided by the Charter and/or any ordinance of the City, and the licensee, by its acceptance of this encroachment permit, agrees to be bound thereby, and to comply with any action or requirement of the City in its exer- cise of any such right or power, heretofore or hereafter enacted or established. (b) In connection with the issuance of any encroachment permit hereunder, the City Council may impose such restrictions, conditions and limitations as it deems to be in the public interest. Section 7. PERMITS AND AUTHORIZATIONS: The licensee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, and to commence construction of its facilities and to render service to its subscribers. Section 8. LOCATION OF LICENSEE'S PROPERTIES: (a) Any poles, wires, cable lines, conduits or other proper- ties of licensee to be constructed or installed in streets, shall be so constructed or installed only at such locations and in such manner as shall be approved in writing by the Superintendent of Streets of the City acting in the exercise of his reasonable discretion. (b) The licensee shall not install or erect any facilities or apparatus on public property or rights-of-way within the City without first obtaining written approval of the Superintendent of Streets of the City in advance. (c) In those areas and portions of the City where either -5- the transmission and distribution facilities of the public utility providing telephone service, or those of the utility providing electric service, are underground or hereafter may be placed under- ground, then the licensee shall likewise construct, operate and maintain all of its transmission and distribution facilities under- ground. Amplifiers in licensee's transmission and distribution lines may be in concrete boxes or vaults upon the surface of the ground. (d) Construction or installation of licensee's cable lines or conduits in all other public places, owned or controlled by the City, shall be subject to approval of and regulation by the City Council in advance. (e) Construction or installation of licensee's cable lines or conduits on all private property shall be with the consent of the property owner and shall not be in violation of any ordinance or law of City or any other political subdivision. Section 9.- REMOVAL OR ABANDONMENT OF PROPERTY OF LICENSEE: (a) In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of twelve (12) months, or in the event such system or property has been in- stalled. in any street or public place without complying with the requirements of this Resolution, the Resolution granting the en- croachment permit, or the encroachment permit, or the encroachment permit has been terminated or revoked, the licensee shall promptly remove from the streets or public places all such property and poles of such system, other than any which the Superintendent of Streets may permit in writing to be abandoned in place. In the event of any such removal, the licensee shall promptly restore the street or other area from which such property has been removed, to a condition satisfactory to the Superintendent of Streets. (b) Any property of the licensee remaining in place ninety (90) days after the termination or revocation of the encroachment Sm permit shall be considered permanently abandoned. The Superintendent of Streets may extend this time not to exceed an additional ninety (90) days. (c) Any property of the licensee abandoned in place, shall be abandoned in such manner as the Superintendent of Streets shall prescribe. Upon permanent abandonment of the property of the licensee in place, and acceptance by City, the property becomes that of the City and the licensee shall submit to the Superintendent of Streets an instrument, to be approved by the City Attorney, trans- ferring to the City the ownership of such property. Section 10. CHANGES REQUIRED BY PUBLIC IMPROVEMENTS: The licensee shall immediately, or within the time required by the City's Superintendent of Streets, at licensee's expense, protect, support, temporarily disconnect, relocate in the same street, alley or public place, any property of the licensee when required by the Superintendent of Streets by reason of traffic conditions, public safety, street vacation, freeway and street construction, mainten- ance or repair of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or any other structures or public improvements. Section 11. FAILURE TO PERFORM STREET WORK: (a) Upon failure of the licensee to complete any work re- quired by law, the City's Superintendent of Streets, or by the pro- visions of this Resolution or the Resolution granting the encroach- ment permit, or the encroachment permit, to be done in any street or property embraced in the encroachment permit to be issued hereunder, within the time prescribed, and to the satisfaction of the Superin- tendent of Streets, the Superintendent of Streets may cause such work to be done, and the licensee shall pay to the City the cost thereof in the itemized amounts reported by the Superintendent of Streets to the licensee, within thirty (30) days after receipt of such itemized report. -7- Section 12. CONTRACT TO GUARANTY PERFORMANCE AND FAITHFUL PERFORMANCE BOND: (a) The licensee shall, concurrently with the filing of an application for encroachment permit, enter into a contract with City that licensee: (1) Takes the encroachment permit subject to all of the, terms and conditions of this Resolution, the Resolution of the City Council granting the encroachment permit, and the encroachment permit; and (2) Will fully and faithfully perform all of the terms and conditions of this Resolution, the Resolution granting the en- croachment permit, and the encroachment permit; and (3) Upon licensee's default, shall pay City any and all damages or loss suffered. by City as a result of such default, includ- ing (but not limited to) the full amount of any compensation, indem- nification, or cost of removal or abandonment of any property of licensee, plus a reasonable allowance for attorney's fees and costs. (b) The licensee shall, concurrently with the filing of and acceptance of award of any encroachment permit granted under this Resolution, file with the City Clerk, and at all times thereafter maintain in full force and effect, at licensee's sole expense, a corporate surety bond, in a company approved by and in a form to be approved by the City Attorney, in the amount of $10,000.00 and conditioned upon the faithful performance of the licensee of the contract mentioned in Section 12(a), this Resolution, the Resolution granting the encroachment permit, and the encroachment permit, and that in the event licensee shall fail to comply with any one or more of the provisions of said contract, this Resolution, or the Resolution of the City Council granting such encroachment permit, or the en- croachment permit granted, that there shall be recoverable, jointly and severally, from the principal and surety of such bond, any damages or loss suffered by the City as a result therefrom, including the full amount of any compensation, indemnification, or cost of In removal or abandonment of any property of the licensee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond; said condition to be a continuing obligation for the duration of such encroachment permit and thereafter until the licensee has liquidated and performed in full all of its obligations with the City that may have arisen from the acceptance of such encroachment permit by the licensee or from its exercise of any privilege herein granted. The bond shall provide that it shall continue in full force and effect indefinitely, and that it will not be cancelled or modified without first giving City sixty (60) days written notice of intention to cancel or modify. (c) Neither the provisions of this section, any bond accepted by the City pursuant thereto, nor any damages recovered by the City thereunder shall be construed to excuse faithful performance by the licensee or limit the liability of the licensee under the encroach- ment permit or for damages, either to the full amount of the bond or otherwise. Section 13. INDEMNIFICATION OF THE CITY: (a) Until such time as licensee has liquidated and performed in full all of its obligations hereunder, licensee shall maintain in full force and effect and furnish to City and file with City, at licensee's sole cost and expense, a general comprehensive liability insurance policy, in protection of City, its boards, commissions, officers, agents and employees, in a company authorized to do business in the State of California and approved by the City Manager and in a form approved by the City Attorney, protecting the City and said persons against liability for loss or damages for personal injury, death and property damage occasioned by the operations of licensee under such encroachment permit with minimum liability limits of Three Hundred Thousand Dollars ($300,000.00) for personal injury or death of any one person, and Five Hundred Thousand Dollars ($500,000.00) for personal injury or death of two or more persons in any one occurrence, and Fifty Thousand Dollars (50,000.00) for damage to property resulting from any one occurrence. (b) The policies mentioned in this section shall name the City of San Rafael, its boards, commissions, officers, agents and employees as additional insureds, and shall contain a provision that a written notice of any cancellation or reduction in coverage of said policy shall be delivered to the City not less than ten (10) days in advance of the effective date thereof. If such insur- ance is provided in either case by a policy which also covers licensee or any other entity or person than those above named, then such policy shall contain the standard cross -liability endorsement. (c) No encroachment permit granted under this Resolution shall be effective unless and until each of the foregoing policies of insurance as required in this section and the contract and bond required by Section 12 have been delivered to the City. (d) By accepting an encroachment permit the licensee agrees to indemnify and save and hold harmless the City of San Rafael, its boards, commissions, officers, agents and employees, from any and all claims, costs, demands, suits, loss, expenses, or other detriment or liability, including attorney's fees, arising from or out of the operation of the licensee's business or under the encroachment permit, or on account of any failure of, or defect in, the service rendered by the licensee to its subscribers, from any cause whatsoever. The licensee agrees that in all written contracts made between itself and its subscribers a clause shall be inserted to the effect that no municipal corporation or other political subdivision having juris- diction over the licensee or the licensee's properties is responsible or answerable for any default or omission of the licensee, or for any interruption or interference with the service of the licensee, from any cause whatsoever. -10- Section 14: INSPECTION OF PROPERTY AND RECORDS: At all reasonable times, the licensee shall permit any duly authorized representative of the City to examine all property of the licensee, together with any appurtenant property of the licensee situated within or without the City, and to examine and transcribe any and all maps and other records kept or maintained by the licensee or under its control which deal with the operations, affairs, transactions or property of the licensee with respect thereto. The licensee shall, at all times, make and keep in the City, full and complete plans and records showing the exact location of all CATV system equipment in- stalled or in use in streets, alleys and public places in the City. The licensee shall file with the Superintendent of Streets, on or before the last day in March of each year, a current map or set of maps drawn to scale to be designated by the Superintendent of Streets, showing all CATV system equipment installed in streets, alleys and public places of the City during the previous year. Section 15. MISCELLANEOUS PROVISIONS: (a) All notices herein provided for shall be prepaid regis- tered or certified mail addressed to the parties as follows: To the City: City Clerk, City Hall, San Rafael, California; with a copy to the City Manager, City Hall, San Rafael, California; To the licensee: as provided in any application for an encroachment permit. All matters herein provided to be filed with the City shall be filed with the City Clerk. (b) Licensee shall submit to the City the form of its service agreement between the licensee and its subscribers. (c) The licensee shall pay to the City a sum of money suffici- ent to reimburse it for all expenses incurred by it in connection with the granting of an encroachment permit pursuant to the provisions of this Resolution, such payment to be made within thirty (30) days after City shall furnish such licensee with a written statement of such expense. -11- (d) The licensee shall not engage directly or indirectly in the business of selling television or other receivers which make use of signals transmitted by its system, nor shall the licensee engage in the repair of such receivers or the sale of parts for the same. If the licensee is a corporation, partnership, or other association of natural persons, this prohibition shall likewise apply to the officers and directors of the licensee, to the general and limited partner of any partnership licensee, and to any person or combination of persons who own, hold, or control more than five per cent (5%) of the corporate stock or other evidence of ownership of the licensee, and shall likewise apply to any affiliated or subsidi- ary corporation owned or controlled by the licensee or by its officers, directors, or stockholders, and shall likewise apply to any corpora- tion or entity which acts in the capacity of a holding company or controlling company of the licensee. (e) The licensee shall not impose on or make any charge to any subscriber for the transmission of any television broadcast which is not received at the same time free of charge by the public generally from regularly licensed channels and broadcasting stations. (f) Nothing granted hereunder shall be construed as a license to distribute services commonly known as `Pay TV." No company, cor- poration or association may directly or indirectly, install, maintain or operate on any television set a coin'box or any other device or means for collection of money for individual programs. Section 16. APPLICATION FOR ENCROACBMENT PERMIT: (a) Application for an encroachment permit hereunder shall be filed with the City Clerk in a form approved by the City and shall contain the following information: (1) The name and address of applicant. (2) A general description of applicant's proposed CATV operation, including map of areas served. -12- (3) Plans and specifications of all proposed installations. (4) A copy of the proposed service agreement between the licensee and its subscribers shall accompany the application. (5) A copy of any contract or contracts, if existing, between applicant and any public utility providing for use of facili- ties of such public utility, such as poles, lines or conduits. (6) A statement of the corporate organization of applicant, including the names and addresses of its officers, directors and associates, and also including the names of subsidiary companies with a listing of other areas being served by CATV or similar systems. (7) Applicant shall also furnish a financial statement prepared by a certified public accountant as to the licensee's finan- cial ability to complete installation and operation of the CATV system. (b) Upon consideration of any such application, the City Council may grant an encroachment permit to such applicant as may appear from said application to be in its opinion best qualified to render proper and efficient CATV service to television viewers and subscribers in the City of San Rafael. The Council's decision in the selection will be final. (c) A statement setting forth all agreements and understand- ings, whether written, oral or implied, existing between the applicant and any person, firm, group or corporation with respect to the en- croachment permit and the proposed operations shall accompany the application. If an encroachment permit is granted to a person, firm, group or corporation posing as a front or representative for another person, firm, group or corporation and such information is not dis- closed in the original application, or if any information furnished on or with the application is false, such encroachment permit shall be revoked automatically. Section 17. USE OF UTILITY POLES AND FACILITIES: (a) When any portion of the CATV system is to be installed -13- on public utility poles and facilities, certified copies of the agreements for such joint use of poles and facilities shall be filed with the City Clerk of the City of San Rafael. Regulations which concern CATV and which are imposed upon utility companies by the Public Utilities Commission shall also be filed with the City Clerk and shall apply to the licensee. Section 18. COMPLIANCE WITH REQUIREMENTS: No license issued hereunder shall become effective until all the requirements of this Resolution are fully met, including the filing with the City Clerk of the contract, bond and certificates of insurance required herein. Section 19. RESOLUTION OF CITY COUNCIL: The City Council shall authorize the said encroachment permit by resolution and it may prescribe in such resolution such rules and regulations as it deems advisable. Section 20. SEVERABILITY: If any section, subsection, sen- tence, clause or phrase of this Resolution is for any reason held illegal, invalid, or unconstitutional, such holding shall not affect the validity of this Resolution or of any of the remaining portions thereof, or any portion of the contract hereinabove mentioned. I hereby certify that the foregoing Resolution was duly and regularly adopted by the City Council of the City of San Rafael, a municipal corporation of the State of California, at a regular meet- ing thereof, held on the 7 day of --T9 6�,, by the following vote, to wit: AYES: Councilmen ppy, Saar, Barbler, Jenson, and Mayor McInnh NOES: Councilmen ABSENT: Councilmen "'MORGAN MORGAN t ti. W. L. MORGAN, City Clerk -14- . C. CORNWELL — a Deputy City Clerk