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1973-209 .~.."""'t~ "- RESOLUTION NO. 73R-20~ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM DECLARING ITS INTENTION TO GRANT TO THETA. CABLE OF CALIFORNIA THE NON-EXCLUSIVE RIGHT, PRIVILEGE AND FRANCHISE TO LAY AND USE LINES, WIRES, COAXIAL CABLE AND APPURTENANCES FOR TRANSMITTING, RECEIVING, DISTRIBUTING AND SUPPLYING RADIO, TELEVISION, AND OTHER CABLE COMMUNICATION SERVICES ALONG, ACROSS AND UPON THE PUBLIC STREETS, WAYS, ALLEYS AND PLACES WITHIN SAID CITY OF ANAHEIM. existing mitted a suant to WHEREAS, Theta Cable of California, a corporation under the laws of the State of California, has sub- proposal to conduct a cable communication system pur- the provisions of a proposed franchise ordinance; and WHEREAS, Section 1401 of the Charter of the City of Anaheim requires that the City Council pass a resolution declar- ing its intention to grant a franchise affixing a place and date, when and where any person interested therein may object to the granting of said franchise; and WHEREAS, Section 1401 of the Charter of the City of Anaheim provides that said resolution also contain the terms and conditions upon which it is proposed to grant said franchise. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Anaheim that it does hereby declare its intention to grant to Theta Cable of California the non-exclusive right, privilege and franchise to lay and use lines, wires, coaxial cable and appurtenances for transmitting, receiving, disbribu- ting and supplying radio, television and other cable services across and upon the public streets, ways, alleys and places within the City of Anaheim. BE IT FURTHER RESOLVED that any person having an interest in or objecting to the granting of said franchise may be heard on the 26th day of June, 1973, at 1:30 o'clock P.M., or as soon thereafter as the matter may be heard. BE IT FURTHER RESOLVED that the City Council does hereby declare that it proposes to grant said franchise upon the following terms, conditions, and in the form as follows: .~ -1- ""'~'t AN ORDINANCE OF THE CITY OF ANAHEIM GRANTING THE NON-EXCLUSIVE RIGHT, PRIVILEGE AND FRAN- CHISE TO LAY AND USE LINES, WIRES, COAXIAL CABLE AND APPURTENANCES FOR TRANSMITTING, RECEIVING, DISTRIBUTING AND SUPPLYING RADIO, TELEVISION, AND OTHER CABLE COMMUNICATION SER- VICES ALONG, ACROSS AND UPON THE PUBLIC STREETS, W1\YS, ALLEYS, AND PLACES WITHIN SAID CITY OF ANAHEIM. THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS FOLLOWS: SECTION 1. FRANCHISE. A non-exclusive franchise is hereby granted to Theta Cable of California for the transmitting, receiving, distributing and supplying radio, television, and other cable communication services along, across and upon the public streets, ways, alleys, and places within said City of Anaheim. SECTION 2. RULES OF CONSTRUCTION. This ordinance shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this ordinance, the following provisions shall govern its inter- pretation and construction: (a) When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. (b) Time is of the essence of this ordinance. Grantee shall not be relieved of its obligation to comply promptly with any provision of this ordinance by any failure of City to enforce prompt compliance with any of its provisions. (c) Any right or power conferred, or duty imposed upon any officer, employee, department or board of City is sub- ject to transfer by operation of law to any other officer, employee, department or board of City. (d) Grantee shall have no recourse whatsoever against City for any loss, cost, expense or damage arising out of any provision or requirement of this ordinance or the enforcement thereof. "..,-.. (e) This ordinance does not relieve Grantee of any require- ment of the City Charter or of any ordinance, rule, re- gulation, or specification of City, including but not limited to, any requirement relating to street work, street excavation permits, undergrounding of utility facilities, including cable system facilities, or the use, removal or relocation of property in streets. (f) provisions of this ordinance shall be construed in accordance with Sections 1400, 1401, 1402, 1403, 1404, 1405, and 1406 of the Charter of the City of Anaheim. -2- SECTION 3. PURPOSE AND INTENT. ._" It is the purpose and intent of this ordinance to grant a franchise to engage in the business of operating a cable com- munication system in the City of Anaheim particularly described in Section 6 of this ordinance. It is the further purpose and intent of this ordinance that the Grantee of the franchise granted by this ordinance provide the citizens of the City of Anaheim the best possible community cable communication services consistent with the state of art and rates reasonable to both Grantee and its subscribers. SECTION 4. DEFINITIONS. Whenever in this ordinance the following words or phrases are used, they shall mean: (a) "City" shall mean the City of Anaheim, a municipal cor- poration in the State of California. (b) "Councilll shall mean the City Council of the City. (c) "Franchise" shall mean the right and authority granted by this ordinance to Grantee to construct, maintain and operate a cable communication system through use of the public streets, other public rights of way or public places in City. (d) "Franchise Property" shall mean all property owned, installed or used under authority of this ordinance by Grantee. (e) "Grantee" shall mean the person or entity to whom the franchise is granted by this ordinance and any lawful successor or assignee of the original Grantee. (f) "Street" shall mean the surface, the air space above the surface and the area below the surface of any public street, other public right of way or public place. (g) "Cable Communication System" referred to in this ordi- nance as "Cable Systemll shall mean the broadcast signal reception, processing, and signal generation facilities and the cable distribution system, as described in the Specifications for construction, operation and maintenance of the Cable Communication System for City of Anaheim. (h) "Subscriber" shall mean any person or entity receiving for any purpose the cable service of Grantee. ""....--.... (i) "Total Gross Receiptsll shall mean any and all compensa- tion and other consideration collected or received or in any manner gained or derived by Grantee from the opera- tion of its cable service within the corporate limits of the City of Anaheim as such corporate limits now exist or may be established hereafter. SECTION 5. APPLICATION FOR FRANCHISE. Application for a franchise hereunder shall be in writing, shall be accompanied by a non-refundable application fee -3- - of Five Hundred ($500.00) Dollars, shall be filed with the City Clerk for transmission to the City Council and shall contain the following information: (a) The name and address of the applicant. If the appli- cant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main officers, major stockholders and associates, and the names and addresses of parent and subsidiary companies. (b) A technical proposal in response to appropriate City rules, regulations or specifications for the construction, operation and maintenance of the cable system and a statement of cornpliance to the requirements of all provisions of said rules and regulations or specifi- cations or, as necessary, a listing of any exceptions, identified as to rule, regulation or paragraph in the specifications with recommended changes thereto. (c) A description, in detail, of the adequacy and feasibil- ity of the construction arrangements for the equipment or facilities proposed to be constructed, installed and maintained. (d) A statement or schedule setting forth the number of channels and all of the television or radio stations and other communication services proposed to be received, transmitted, conducted, relayed or otherwise conveyed over its system. (e) A statement or schedule in a form approved by the City Manager of proposed rates and charges to subscribers for installation and services, and a copy of proposed service agreement between the Grantee and its sub- scribers shall accornpany the application. (f) A copy of any contract, if existing, between the appli- cant and any public utility providing for the use of facilities of such public utility, such as poles, lines or conduits. (g) A statement setting forth all agreements and understand- ings, whether written, oral or implied, existing between the applicant and any person, firm or corpora- tion with respect to the proposed franchise or the proposed cable system operation. If a franchise is granted to a person, firm or corporation posing as a front or as the representative of another person, firm or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever. .- (h) A financial statement prepared by a certified public accountant, or person otherwise satisfactory to the Council, showing applicant's financial status and his financial ability to complete the construction and installation of the proposed cable system. -4- ~,.,.".. "- {i} The Council may at any time demand, and applicant shall provide, such supplementary, additional or other information as the Council may deem reasonably necessary to determine whether the requested franchise should be granted. SECTION 6. NATURE AND EXTENT OF GRANT. The franchise granted by this ordinance to Grantee con- stitutes authority to use the public streets, other public rights of way or public places in City, to engage in th.e business of operating a cable communication system, as defined herein, within the service area described in Section 7 of this ordinance subject to all of the terms and conditions contained in this ordinance. Pursuant to such authority, until lawfully revoked, Grantee may construct, maintain and operate wires, cables, poles, conduits, manholes or any other equipment which is a means of transmitting and receiving signals. Grantee shall not engage in the business of selling at retail, leasing, renting, repairing or servicing television sets or radios nor engage in the sale of parts for such equipment. When requested, Grantee shall receive and distribute signals from and to master stations of other (third party) com- munication service operators who are authorized by the City to offer such services within the City. Signal carriage shall be provided on cable system access channels by Grantee at uniform rates approved by the City. Equipment and installation required to bring the signals to and from the cable system master station and to condition such signals for application to the cable sys- tem shall be provided by the (third party) communication service operator. SECTION 7. TERRITORIAL AREA INVOLVED. This franchise relates to the present territorial limits of the City and to any area henceforth added thereto during the term of this franchise. SECTION 8. DURATION OF GRANT. (a) The franchise shall become effective on the thirtieth (30th) day after the passage of this ordinance, subject to the conditions contained in Section 27 hereof, provided prior to that date Grantee has filed with the City Clerk: (1) a written instrument addressed to the Council, accepting the franchise and agreeing to comply with all provisions of this ordinance; (2) a surety bond, cash deposit or deposit in any federal or State of California chartered bank or savings and loan association in accordance with the provisions of Section 19 of this ordinance. ,,,"'---" (b) The term of the franchise shall be fifteen (15) years commencing on the effective date of the franchise as pro- vided in paragraph (a) of this section; provided, that upon written notice given by City or Grantee to the other not less than one year prior to the fifteenth (15th) anniversary of the effective date, the terms and conditions of this ordinance may be subject to renewal and renegotiation, as provided in Sections 1400, 1401, 1402, 1403, 1404, 1405 and 1406 of the City Charter for a succeeding fifteen (15)-year term. Renegotiations shall be directed toward effecting alterations in the terms and conditions -5- -" of the franchise in order to reflect those technical and economic changes which have occurred during the interim period. If rene- gotiation prior to the end of the term of the franchise does not result in agreement between City and Grantee for continuance of the franchise for a succeeding fifteen (15)-year term, the fran- chise shall terminate without further action by City at the end of its first fifteen (lS)-year term. (c) In the event of purchase by tiLe Grantor, or a change of Grantee, the current Grantee shall cooperate with the City, or with a representative appointed by the Grantor to operate the System for a temporary period in maintaining continuity of service to all subscribers. SECTION 9. LIMITATIONS UPON GRANT. NO privilege or exemption is granted or conferred by this ordinance except those specifically prescribed in it. The franchise granted by this ordinance is subordinate to any existing public use or any existing franchise or lawful occupancy or any public highway, street, road or other public property for the purpose of erecting, operating and maintaining poles, lines, conduits, cables, gas pipelines and other necessary fixtures used in connection with the purpose of existing fran- chises or any extension of them. The franchise granted by this ordinance is a privilege personal to the original Grantee. It cannot in any event be sold, transferred, leased, assigned, or disposed of as a whole, or in part, or otherwise, without prior consent of City expressed by ordinance, and then only under such conditions as may be pre- scribed in the consenting ordinance; provided, however, that no such consent shall be required for any transfer in trust, mortgage, or other hypothecation, as a whole, to secure an indeb- tedness. In the event that Grantee is a corporation, prior approval of the City Council, expressed by ordinance, shall be required where ownership or control of more than thirty percent (30%) of the voting stock of Grantee is acquired by a person or group of persons acting in concert, none of whom already own or control thirty percent (30%) or more of the voting stock, singu- larly or collectively. Any such acquisition occurring without prior approval of the City Council shall constitute a failure to comply with a provision of this ordinance within the meaning of subparagraph (1) of paragraph (b) of Section 8 of this ordinance. SECTION 10. OPERATION OF SERVICE. ,- (a) Within thirty (30) days after acceptance of any franchise, the Grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having juriSdiction over the operation of cable television systems, or associated micro-wave transmission facilities. -6- r ~,,,-~ (b) Within ninety (90) days after obtaining all neces- sary permits, licenses and authorizations, including right of access to poles and conduits, Grantee shall commence construction and installation of the cable television system. (c) Within one hundred eighty (180) days after the commencement of construction and installation of the system, Grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with due reasonable diligence thereafter, so that service to the area covered by the franchise shall be provided within two and one-half (2-l/2) years. (d) Failure on the part of the Grantee to commence and diligently pursue each of the foregoing requirements and to com- plete each of the matters set forth herein, shall be grounds for termination of such franchise. By resolution, the Council, in its discretion, may extend the time for the commencement and completion of installation and construction for additional periods in the event the Grantee, acting in good faith, experiences delays by reason of circumstances beyond his control. By acceptance of the franchise granted hereunder, Grantee agrees that failure to comply with any time requirements referred to in subsections (a), (b) and (c), or as extended by the City Council, of this section will result in damage to the City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay; and Grantee therefore agrees that, in addition to any other damage suffered by City, he will pay to the City the sum of One Hundred Dollars ($100.00) per day for each and every day's delay beyond the time prescribed, plus authorized extensions thereof, for completion of any of the acts required to be done by this section. SECTION 11. REGULATION OF RATES AND SERVICES. The City Council shall have the power and right at all times for the duration of the franchise granted by this ordinance to require Grantee to conform to reasonable rules and regulations now or hereafter adopted by the City Council, including the power to regulate and establish reasonable rates and charges by Grantee for services rendered under this ordinance. The facilities used by the Grantee shall be capable of distributing color TV signals, and when the signals the Grantee distributes are received in color they shall be distributed in color. It is expressly agreed that services to be provided as described herein include use of a converter to be made available by Grantee at established rates. Grantee shall: ,,~ (a) Deliver TV signals which will produce a picture, whether in black and white or in color, that is undistorted, free from ghost images, and accompanied with proper sound on typical standard production television receiver sets in good repair in accord- ance with the standards set forth in the City rules, regulations or specifications of construction, operation and maintenance of the cable system as may be modified by mutual agreement between the City and the Grantee. -7- r''''''-''' (b) Provide, maintain and operate facilities which deliver signals of adequate strength to produce good pictures with good sound at all outlets without causing cross- modulation in the cables or interfering with other electrical or electronic systems, in accordance with the standards set forth by the City rules, regulations or specifications of construction, operation or main- tenance of the cable system. (c) Limit system failures to minimum time duration by loca- ting and correcting malfunctions promptly, but in no event longer than twenty-four (24) hours after occur- rence, irrespective of holidays or other non-business hours. (d) Upon complaint by a subscriber, make a demonstration satisfactory to the City Manager or designated staff that a signal is being delivered which is of sufficient strength and quality to meet the standards set forth in this paragraph and the City rules, regulations or specifications of construction, operation and mainten- ance of the cable system. (e) Render efficient service, making repairs promptly and interrupting service only for good cause and for the shortest time possible; such interruptions insofar as possible shall be preceded by notice given to sub- scribers twenty-four (24) hours in advance and shall occur during periods of minimum use of the system. (f) Maintain an office in the service area, which office shall be open during all the usual business hours, have a telephone number listed in the directories of the Pacific Telephone and Telegraph Company for Anaheim extended areas, and be so operated that com- plaints and requests for repairs or adjustments may be received at any time day or night, seven days a week. (g) Deliver not less than twenty (20) FM radio signals in accordance with the specifications of construction, operation and maintenance of the cable system. (h) Operate the cable system authorized by this ordinance twenty-four (24) hours per day, seven (7) days per week. SECTION 12. SPECIAL PROVISIONS. v..,.-.. Grantee shall provide the following facilities and ser- vices without cost to the City or to the schools located in Anaheim of any School District on a continuous basis: (a) A local studio with a capability for live and film color TV broadcasts and for TV recording and playback in color available to the City for a minimum of four (4) hours each week and available to the school systems for a minimum of eight (8) hours each week. Local station crews and equipment will be available for broadcast operations during reasonable business and evening hours. -8- .''"'1 .- (b) Mobile broadcast facilities capable of remote live color TV broadcast and recording including necessary crews shall be available to the City for a minimum of four (4) hours each week and available to the school system for a minimum of eight (8) hours each week. (c) In addition to the cable communication system service, at least five upstream video channels shall be dedicated to the City. The configuration and the input locations for upstream transmission shall be as specified in the performance specification section 7.l.i~ (d) All school structures, including schools and the administrative buildings, shall be connected to the Grantee's system. School programming within the capacity of the two-way channels, as described in the performance specification, will be transmitted to the Grantee's system and retransmitted to school users on one or more of the access channels. Grantee shall provide adequate channel capability to the public school system such that the present microwave educational broadcast equipment can be phased out within five years. One such channel shall be provided by the Grantee for educational purposes at no cost to the schools. Grantee shall provide three experimental educational channels during the five-year period at no charge to the public schools or to the City. Grantee shall provide one such channel to the City for municipal purposes at no cost to the City. If, after five years, the Federal Communications Com- mission or such agency authorized by law shall permit a charge on the five channels furnished by Grantee herewith, the City reserves the right to control and regulate the amount of said charge. (e) Grantee shall train, at its own expense, one City employee for TV program origination and coordination. (f) Installation of an emergency alert system in accordance with City rules, regulations or specifications of construction, operation and maintenance of the cable system. In case of any declared emergency or disaster, the Grantee shall, upon request of the Mayor or City Manager, make available immediately its facilities to the City for emergency use during the emergency or disaster period. (A declared emergency or disaster as used herein means such event as is described in Section 6.04.020 of the Anaheim Municipal Code [The City's Disaster Plan], but only when such event has been pro- claimed by the City Council, the Director of Disaster Services, the Governor or other competent authority). (g> The Grantee's cable distribution system shall be designed, constructed and equipped to initially carry television and access channels, as specified in City rules, regulations or specifications of construction! operation and maintenance of the cable system, and shall have a capacity of carrying the equivalent of six (6) television channels for transmittal of data. The cable distribution system shall also provide for transmission of return (upstream) television grade channels and capacity for data return channels in accordance with require- ..- -9- ,....,' ments of City rules, regulations or specifications of construction, operation and maintenance of the cable system. (h) Grantee shall provide for tie-in to cable systems constructed in adjacent communities tangent to City property lines. The headquarters for the tie-in system to provide said service shall be located within the City limits of the City of Anaheim. Such tie-in shall include necessary equipment to permit retrans- mission on the access channels specified by the City. (i) Srstem Maps and Layout. The Grantee shall have at all t1mes up-to-date route rnaps of suitable scale showing all transmitting and receiving pickup locations and the location of all amplifiers and trunk and distribution lines. Lines to individual home and business outlets within the public right of way shall be shown. Maps shall be annotated so that a failure or malfunction in the transmission lines and assorted equipment can be evaluated in terms of service area receiving less than full service. The scale of the maps shall be sufficient to clearly show details to include horizontal and ver- tical dimensions and in no event less than 1 inch = 100 feet. Grantee shall provide City current copies of said maps. At the beginning of construction and every six (6) rnonths after, Grantee shall indicate to the City its plans for installation and engineering during the next six (6) months. ,- (j) S stem Construction and E ui ment Standards. The system s a e 1nsta e an ma1nta1ned 1n accordance with standard good engineering practices and shall conform when applicable with the National Electrical Safety Code; Rules for Overhead Line Construction (General Order No. 95) of the California Public utilities Commission; Rules for Underground Construction of Lines (General Order No. l28); the California Administrative Code, Title 24, Part 3; the City of Anaheim Municipal Code; Federal Communications Commission Rules and Regulations Parts 15, 73, 74 and new Rules and Regulations as they become effective, and Electronic Industries Association Standards RS-2SQ-A. The equipment installed shall conform to the City rules, regulations or specifications of construction, opera- tion and maintenance of the cable system. (k) Preferential or Discriminator Practices Prohibited. The Grantee sha not, as to rates, c arges, serV1ce, services, facilities, rules, regulations, or in any other respect, make or grant any undue preference or advantage to any person, nor subject any person to any prejudice or disadvantage. (1) Flow-through of Refunds. If, during the term of this franchise, the Grantee receives refunds of any payments made for television or radio signals, and where the amounts represented by the refunds have been used to justify rates, it shall, without delay, notify the City Council, suggest a plan for flow-through of the refunds to its subscribers, and retain such funds pending order -10- of the Council. After considering the plan submitted by the Grantee, the Council shall order the flow-through of refunds to the Grantee's subscribers in a fair and equitable manner. (m) Subscriber Refunds on Termination of Service. If ser- vice to a subscriber of less than three years is termi- nated without good cause or because Grantee ceases to operate the cable system business authorized herein for any reason, except expiration of this franchise, Grantee shall refund to such subscriber an amount equal to the initial installation charges paid by him divided by 36 and rnultiplied by a number equal to 36 minus the number of months the subscriber has been on the system. en) Grantee shall provide a level of effort of one man commencing on the date of Certification of the Cable System by the Federal Communications Commission, such staffing and effort to be applied to the marketing and advertising of the cable services to the citizens of Anaheim. Co) Grantee agrees to provide to the City the service of one man on a continuous basis from the time of fran- chise award and for a remaining periOd of three years to assist in the development of Cable System experi- mentation concepts and proposals. The individual{s) assigned to this task shall be of professional level and familiar with technical, economic and operational aspects of Cable Television service. (p) Grantee agrees to furnish at its own expense qualified legal counsel to assist in obtaining a Certificate of Compliance from the Federal Communications Commission. SECTION 13. LOCATION OF PROPERTY OF GRANTEE. r"'~~' The Grantee shall make such arrangements to install the cable system with the owner of the property or easement where such cable system is to be located as may be appropriate. Grantee shall furnish City with evidence of such arrangements. All street work will require an excavation permit. Any poles, wires, cable lines, conduits or other properties of the Grantee to be constructed or installed in streets, alleys or other rights of way shall be so constructed or installed only at such locations and in such manner as shall be approved by the City acting in the exercise of its reasonable discretion. The Grantee must post a cash bond with the City in the sum of $2,000.00 during and until completion satisfactory to the City of said work and restoration of street and alleys. The Grantee shall not install or erect any facilities or apparatus in or on other public property, places, or rights-of-way, or within any privately-owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City, except those installed or erected upon public utility facilities now existing, without obtaining the prior written approval of the Director of Public Works or designated staff. -11- - In those areas and portions of the City where the trans- mission or distribution facilities of either the public utility providing telephone service or those of the utility providing elec- tric service are underground or hereafter may be placed underground, then the Grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities or other means of transmitting signals underground. For the purposes of this subsection, l1undergroundll shall include a partial underground system, e.g. streamlining. The City shall not in any manner be responsible for any costs incurred by the Grantee in placing Grantee's facilities underground. SECTION 14. INSTALLATION OF DISTRIBUTION SYSTEM. The entire distribution system of the Grantee, including poles, posts, wires, cables, appurtenances, and facilities, shall be located or relocated and so erected as not to interfere with travel over, in, on or under any public way and with reasonable ingress and egress to abutting property. SECTION 15. REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY. In the event that (1) the use of any franchise property is discontinued for any reason for a continuous period of twelve (12) months, (2) franchise property has been installed in any street or other dedicated public right of way without complying with the requirements of this ordinance, or the franchise has been terminated, cancelled or has expired, Grantee, at its expense, shall at the demand of the City remove promptly from the street all franchise property other than any which the Director of Public Works may permit to be abandoned in place. In the event of any such removal, Grantee shall promptly restore to a condition satisfactory to the Director of Public Works the street or other dedicated public right of way or other public places in City from which the franchise property has been removed. Franchise property to be abandoned in place shall be abandoned in the manner prescribed by the Director of Public Works. Upon permanent abandonment of any franchise property in place, Grantee shall submit to the City Manager an instrument, satisfactory in form to the City Attorney, transferring to City the ownership of the franchise property abandoned. SECTION 16. CHANGES REQUIRED BY PUBLIC D1PROVEMENTS. ~"~ Grantee shall, at its expense, protect, support, tempor- arily disconnect, relocate in the same street, alley, or public place, or remove from any street, alley or public place, any fran- chise property when required by the Director of Public Works by reason of traffic conditions, public safety, street vacation, free- way and street construction, change or establishment of street grade, installation of sewers, drains, and tracks or any other type of structures or improvements including but not limited to placing such structures and improvements underground by governmental agencies when acting in a governmental or proprietary capacity, or any other structures or public improvements; provided, however, that Grantee shall in all such cases have the privileges and be subject to the obligations to abandon franchise property in place, as provided in Section 15. -12- SECTION 17. FAILURE TO PERFORM STREET WORK. .- Upon failure of Grantee to commence, pursue or complete any work required by law or by the provisions of this ordinance to be done in any street, within the time prescribed and to the satis- faction of the Director of Public Works, the Director of Public Works may, at his option, cause such work to be done and the Grantee shall pay to the City the costs thereof in the itemized amounts reported by the Director of Public Works to Grantee, within thirty (30) days after receipt of such itemized report. SECTION 18. FRANCHISE FEE. Grantee shall pay to the City five percent (5%) of the total gross receipts derived from the use, occupation or possession of this franchise commencing 19 . Such fee shall be in addition to any or permit or fee charged provided for in this as follows: , other application franchise, payable The Grantee shall in all events pay to the City a m1nLffium franchise fee in the sum of Five Thousand Dollars ($5,000.00) upon the date of the award of this franchise, the sum of Seven Thousand Five Kundred Dollars ($7,500.00) on the expiration of the first year from the date of award of this franchise, and the sum of Ten Thousand Dollars ($10,000.00) upon the expiration of the second year of operation of this franchise. The above minimum payments shall be in advance of the calendar year from which they shall apply, and in the event the City share of the total gross receipts shall exceed the minimum franchise amounts, the City shall grant a credit to Grantee for said advance sums. Further, Grantee shall comply with the other proposals of its aforesaid application for franchise, unless any of such proposals conflict expressly with the provisions hereof. The Grantee shall file with the City, within forty-five (45) days after the expiration of each 90-day period during the time this franchise is in force, a financial statement of the estimated gross receipts of the preceding 90-day period. It shall be the duty of the Grantee to pay to the City, within fifteen (15) days after the time for filing such statement the sum hereinbefore prescribed or any unpaid balance thereof for such 90-day period covered by such statement. A year-end adjustment based on a financial statement prepared by a certified public accountant shall be submitted by Grantee and the amount due or the rebate authorized as a result thereof shall be paid by Grantee or City. - Grantee shall furnish the City, upon demand, such data as needed in accordance with generally accepted account- ing principals in the industry, or such other system as may be designated by the City or the F.C.C. The City shall have the right to inspect the Grantee's records showing the total gross receipts from which its franchise payments are computed and the right of audit and the recomputa- tion of any and all amounts paid under this franchise. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable under this franchise or for the performance of any other obligation hereunder. -13- "'~ Any neglect, omission or refusal of the Grantee to file said verified statement, or to pay said percentage in full, at the time or in the manner hereinbefore provided, which neglect, omission or refusal shall continue for more than fifteen (15) days following notice thereof to the Grantee from the City shall be grounds for the termination of this franchise as provided for in Section 22 hereof. SECTION 19. FAITHFUL PERFORMANCE BOND. Grantee shall, upon the award of this franchise, file an acceptable corporate surety bond in the amount of Two Hundred and Fifty Thousand Dollars ($250,000) for and during the course and period of the construction of the cable system as described in this ordinance. Thereafter, Grantee shall maintain in full force and effect a corporate surety bond in the amount of Twenty- Five Thousand Dollars ($25,000), and conditional that in the event Grantee shall fail to comply with anyone or more of the provisions of this ordinance, then there shall be recoverable jointly and severally from the principal and surety of such bond any damages suffered by City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of property as prescribed by this ordinance which may be in default, up to the full amount of the bond, the condition to be a continuing obligation for the duration of the franchise granted by this ordinance and thereafter until Grantee has liquidated all of its obligations with City that may have arisen from the acceptance of the franchise by Grantee or from its exercise of any privilege herein granted. In lieu of said bond Grantee may deposit cash with the City of Anaheim or in a federal or State of California bank or savings and loan association in the name of the City of Anaheim, but with interest reserved to the Grantee, on terms and conditions approved by the City Attorney. Neither the provisions of this section, and any bond accepted by the City pursuant thereto nor any damages recovered by City thereunder, nor any withdrawal from any cash deposit shall be construed to excuse faithful performance by Grantee or to limit the liability of Grantee under this ordinance or for damages, either to the full amount of the bond or otherwise. SECTION 20. LIABILITY AND INDEMNIFICATION. The Grantee shall pay all damages and penalties which the City may legally be required to pay as a result of passage of this ordinance. These damages or penalties shall include damages arising out of the installation, operation, or maintenance of the cable system authorized herein, whether or not any act or omission complained of is authorized, allowed, or prohibited by this ordinance. - The Grantee shall pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned above. The expenses shall include all out-of-pocket expenses, such as attorney fees, and shall also include the rea- sonable value of any services rendered by the City Attorney or his assistants or by any employees of the City. The Grantee shall maintain and pay for liability insur- ance insuring the City and the Grantee with regard to all damages charged against the City and/or the Grantee resulting from the installation, development, maintenance or expansion of the cable system authorized by this ordinance in the following amounts: -14- ,~ (I) Two Hundred Fifty Thousand ($250,000) Dollars for bodily injury or death to anyone person, with an aggregate limit for anyone occurrence of Five Hundred Thousand ($SOO,OOO) Dollars for bodily injury or death. (2) One Hundred Thousand ($100,000) Dollars property damage resulting from anyone accident. (3) Fifty Thousand ($50,000) Dollars for all other types of liability. The Grantee agrees not to oppose intervention by the City in any suit or proceeding to which the Grantee is a party. SECTION 21. INSPECTION OF PROPERTY AND RECORDS. At all reasonable times Grantee shall permit examination by any duly authorized representative of the City Manager, Direc- tor of Public Works or the City Auditor of all franchise property, together with any appurtenant property of Grantee situated within or without the City. Grantee shall also permit any duly author- ized representative of the City Manager, Director of Public Works or the City Auditor to examine and transcribe any and all maps and other records kept or maintained by Grantee or under its control concerning the operations, affairs, transactions or prop- erty of Grantee. If any of such maps or records are not kept in the City, or upon reasonable request made available in the City, and if the City Manager, Director of Public Works or the City Auditor shall determine that an examination of such maps or records is necessary or appropriate to the performance of any of their duties, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by Grantee. Grantee shall prepare and furnish to the City Manager, Director of Public Works or the City Auditor, at the times and in the form prescribed by the City Manager, Director of Public Works, or the City Auditor, such reports with respect to its operations, affairs, transactions or property as may be reasonably necessary or appropriate to the performance of any of the duties of the City Manager, Director of Public Works or the City Auditor in connection with this ordinance. Such reports may include, but are not limited to, a cornplete set of records and plans of all facilities as finally installed within the franchise service area. SECTION 22. TERMINATION. ..~ (a) The City may terminate any franchise granted pursuant to the provisions of this ordinance in the event of the willful failure, refusal or neglect by Grantee to do or comply with any material requirement or limitation contained in this ordinance, or any material rule or regulation of the Councilor City Manager validly adopted pursuant to this ordinance. (b) The City Manager may make written demand that the Grantee do or comply with any such requirement, limitation, term, condition, rule or regulation. If the failure, refusal or neglect of the Grantee continues for a period of thirty (30) days follow- ing such written demand, the City Manager may place his request for termination of the franchise upon the Council meeting agenda. The City Manager shall cause to be served upon such Grantee, at least ten (10) days prior to the date of such Council meeting, a written notice of his intent to request such termination, and the time and place of the meeting. -15- _......._~ - (c) The Council shall consider the request of the City Manager and shall hear any persons interested therein, and shall determine whether or not any failure, refusal or neglect by the Grantee was with just cause. (d) If such failure, refusal or neglect by the Grantee was with just cause, the Council shall direct the Grantee to comply within such time and manner and upon such terms and con- ditions as are reasonable. (e) If the Council shall determine such failure, refusal or neglect by the Grantee was without just cause, then the Council may pass its resolution declaring that the franchise of such Grantee shall be terminated and forfeited unless there be compliance by the Grantee within such period as the Council may fix. (f) The termination and forfeiture of any franchise shall in no way affect any of the rights of the City under the franchise or any provision of law. (g) In the event of any holding over after the expira- tion or other termination of any franchise granted hereunder, without the prior consent of the City, expressed by resolution, the Grantee shall pay to the City reasonable compensation and damages, of not less than one hundred percent (100%) of its total gross revenue during said period. (h) Any and all minimum standards governing the opera- tion 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, 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. SECTION 23. MISDE!-1EANORS . (a) It shall be unlawful for any person, firm or cor- poration to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable system within the City, for the purpose of taking or receiving television signals, radio signals, pictures, programs or sound. ....-. (b) It shall be unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable system within the City, for the purpose of enabling himself or others to receive any tele- vision signals, radio signal, picture, program or sound, without payment to the owner of said system. (c) It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cable wires or equipment used for distribution of television signals, radio signals, pictures, programs or sounds. (d) It shall be a misdemeanor punishable by a fine of not to exceed Five Hundred Dollars ($500.00), or by imprisonment -16- for not to exceed six (6) months, or both, for any person to violate any of the provisions of this section. ""....-..... SECTION 24. ACQUISITION. In the event the City wishes to acquire part or all of the cable system either by purchase or through the exercise of the right of eminent domain, City and Grantee will each appoint one appraiser to establish the value of the equipment to be acquired by City. The two appraisers will select a third appraiser who will be chair.man of the appraisal board. The board will by majority vote determine the value of the system to be acquired by City. This value will be final and binding on both City and Grantee and will be used as the purchase price of just compensa- tion in an eminent domain proceeding between City and Grantee. SECTION 25. FILINGS AND CO~~NlCATION WITH REGULATORY AGENCIES. Copies of all petitions, applications, reports and communications of all types submitted by Grantee to the Federal Communications Commission, Securities and Exchange Commission, California Public utilities Commission, or any other Federal or State regulatory commission or agency having jurisdiction over any matter affecting operation of Grantee's cable system shall be submitted simultaneously to the City by delivery to the City Clerk who shall advise interested City departments of such filing. A copy of each document filed with the City Clerk in accordance with this section shall be delivered to the City Attorney. SECTION 26. NEW DEVELOPMENTS. It shall be the policy of the City liberally to amend this franchise, upon application of the Grantee, when necessary to enable the Grantee to take advantage of any developments in the field of transmission of communication signals which will afford it an opportunity more effectively, efficiently, or economically to serve its customer. Provided, however, that this section shall not be construed to require the City to make any amendment or to prohibit it from unilaterally changing its policy stated herein. Grantee agrees to incorporate, as part of the cable system installed, advances in equipment and services provided to the citizens of Anaheim at the first possible opportunity, and in any event not later than the times when such advances are installed in other cable systems operated by Grantee. Such equip- ment and service shall include, but not be limited to, two-way access available to all subscribers, equipment to facilitate such two-way services at both headend and subscriber terminals, availa- bility of national or international transmission via communica- tions satellite, and other such advances. Such equipment and services shall be incorporated in the Anaheim Cable System without regard to the company, corporation or other agency involved in its development. .,""'-'" SECTION 27. CERTIFICATE OF COMPLIANCE. An express condition to the award of this franchise shall be the obtaining of a certificate of compliance from the Federal Communications Commission in accordance with the terms and conditions of this ordinance and applicable specifications -17- - without exception. The failure to secure such "Certificate" shall terminate this franchise or shall render the effective starting date hereunder, pursuant to Section 8 hereof, inapplicable until such "certificate" shall be awarded to Grantee. In the event a "Certificate" shall not be awarded within eighteen (18) months, the City shall elect one of the above options, and such election shall be binding on Grantee. SECTION 28. PUBLICATION OF COSTS. The Grantee shall assume the cost of publication of this franchise, as such publication is required by law and such is payable upon the Grantee's filing of acceptance of this franchise. SECTION 29. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or uncon- stitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof. SECTION 30. The City Clerk shall certify to the passage of this ordinance and shall cause the same to be printed once within fifteen (15) days after its adoption, in the Anaheim Bulletin, a newspaper of general circulation, printed, published and circu- lated in said City, and thirty (30) days from and after its final passage it shall take effect and be in full force. THE FOREGOING ORDINANCE is approved and signed by me this day of , 19 MAYOR OF THE CITY OF ANAHEIM ATTEST: CITY CLERK OF THE CITY OF ANAHEIM BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to publish this resolution within fifteen (15) days of its passage in the Anaheim Bulletin, a newspaper of general circulation, in the City of Anaheim, County of Orange, State of California. THE FOREGOING RESOLUTION is approved and signed by me this 29th day of May , 1973. ATTES'lI: DENE M. DAOUST, CITY CLERK ~~~;;K)~~ ~~~tL~~~yLt;; AN~I~Y .,...~"-" FAL:kw -18- STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) ".c.,~ I, DENE M. DAOUST, City Clerk of the City of Anaheim, do hereby certify that the foregoing Resolution No. 73R-20~ was passed and adopted at a regular meeting of the City Counc1l held on the 29th day of Mav , 19li-' by the following vote of the members thereof: AYES: COUNCILMEN: Stephenson, Sneegas, Pebley, Thom and Dutton NOES: COUNCILMEN: None ABSENT: COUNCILMEN: None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim approved and signed said Resolution on the 29th day of Mav , 19~. IN WITNESS WHEREOF, I have hereunto set rny hand and affixed the seal of the City of Anaheim this 29th day of May , 19...:l3-. DENE M. DAOUST, CITY CLERK C(~'"., ~r' ~tTY/~~;;;-~F );~~ ~~;~V~;-{~A1i~D? (SEAL) I, DENE M. DAOUST, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original of Resolution No. 73R-209 dw1y passed and adopted by the Anaheim City Council on May 29, 1973. DENE M. DAOUST, CITY CLERK /-~, ..... > ;i )/ ..' (f~ <'\ /' .'/ By c vC<"'71,"V /) 1 'c:~r,J' 1,.{--;r',C)- Dppnty City Clerk -