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HomeMy WebLinkAboutORD 3190 ORDINANCE NO. 319 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, ISSUING A NON-EXCLUSIVE LICENSE TO CONSTRUCT, OPERATE AND MAINTAIN A TELEVISION ANTENNA CABLE SERVICE WHEREAS, the City Council of the City of Palm Desert, California, has received from William Bone, doing business as Sunrise Company, an application for the issuance of a non-exclusive two (2) year license to construct, operate and maintain a television antenna cable service within certain areas in the City of Palm Desert, in accordance with the ordinances of the City of Palm Desert. WHEREAS, the City has conducted extensive study and research concerning the matter of adopting a new enabling ordinance providing for the establishment and granting of franchises or privileges for the construction, maintenance and operation of cable communication, or cable television T systems and further providing for the continuing regulation and administration of these franchises and the activities relative to them and is presently considering a draft of such an ordinance. WHEREAS, Sunrise Company has begun construction on the parcels of property as to which the application for a franchise applies and desires to secure an interim franchise agreement pursuant to City Council Resolution 81-157, which franchise will be later rewritten to conform (1) to the enabling ordinance ultimately adopted by the City, and (2) to the terms and conditions which shall control any and all other cable television franchise agreements of cable operators operating under the jurisdiction of the City, it being the intent and purpose of the City to create parity amongst all such cable operators after passage of the new enabling ordinance. NOW, THEREFORE, the City Council of the City of Palm Desert, California DOES HEREBY ORDAIN as follows: -1- w SECTION 1: That the City Council determines and does hereby order the issuance of a license to William Bone, doing business as Sunrise Company, in the following form: "A NON-EXCLUSIVE INTERIM LICENSE OF THE CITY OF PALM DESERT, TO CONSTRUCT, OPERATE AND MAINTAIN A TELEVISION ANTENNA CABLE SERVICE IN, UNDER AND ACROSS AN AREA AND PUBLIC ROADS AS THEY NOW OR MAY HEREAFTER EXIST IN THE INCORPORATED CITY OF PALM DESERT." �. (1) A non-exclusive interim license is hereby granted to William Bone, doing business as Sunrise Company, hereinafter called "Licensee", to and including November 1, 1984, from the date hereof, to construct, operate and maintain a television antenna cable service along, under and cross the public roads and in the area as it now or may hereafter exist within the incorporated boundaries of the City of Palm Desert, and more particularly described as follows: Parr i-1 1 The Southeast quarter of the northwest quarter of Section 10, Township 5 South, Range 6 East, San Bernardino Meridian, in the City of Palm Desert, County of Riverside, State of California, as shown by the United States Government Survey. Assessor's Parcel No. 619-06-1. PArrPl 9- The Northeast quarter of the Northwest quarter of Section 10, Township 5 South, Range 6 East, San Bernardino Meridian, in the City of Palm Desert, County of Riverside, State of California. EXCEPT the Northerly 44.00 feet conveyed to the County of Riverside, by deed filed for record April 7, 1958, as Instrument No. 25037 Assessor's Parcel No. 619-06-2. PArrP1 *1- The West half of the Northwest quarter of Section 10, Township 5 South, Range 6 East, San Bernardino f Meridian, in the City of Palm Desert, County of Riverside, State of California. EXCEPT the Northerly 44.00 feet conveyed to the County of Riverside by deed filed for record April 7, 1958, as Instrument No. 73928. Assessor's Parcel No. 619-06-3. Parcel 4• The Northeast quarter of Section 10, Township 5 South, Range 6 East, San Bernardino Meridian, in the City of Palm Desert, County of Riverside, State of California. -2- EXCEPT the Northerly 44.00 feet thereof as granted to the County of Riverside in Deeds recorded March 31, 1958, as Instrument No. 23191 and recorded April 7, 1958, as Instrument No. 25038. Assessor's Parcel No. 619-06-4. Parcel 5: The East half of the West half of the Northeast quarter of Section 9, Township 5 South, Range 6 East, San Bernardino Meridian, in the City of Palm Desert, County of Riverside, State of California. Assessor's Parcel No. 621-23-05. Parcel 6: The Northeast quarter of Section 9, Township 5 South, Ranee 6 East, San Bernardino Base and Meridian, in the City of Palm Desert, County of Riverside, State of California. EXCEPTING the West one-half thereof; ALSO EXCEPTING therefrom the Northerly 44.00 feet thereof as conveyed to the County of Riverside by Deed recorded April 7, 1958, in Book 2250 page 555 of Official Records of Riverside County, California; ALSO EXCEPTING therefrom the Easterly 44.00 feet thereof as conveyed to the County of Riverside by Deed recorded August 6, 1962, as Instrument No. 73925 of Official Records of Riverside County, f California. Assessor's Parcel No. 621-23-06. Parcel 10: The West half of the West half of the Northeast quarter of Section 9, Township 5 South, Range 6 East, San Bernardino Base and Meridian, in the City of Palm Desert, County of Riverside, State of California. EXCEPTING therefrom the North 55.00 feet thereof as conveyed to the County of Riverside by Deed recorded April 7, 1958, as Instrument No. 25029 and October 12, 1972, as Instrument No. 136515, both of Official Records of Riverside County, California. Assessor's Parcel No. 621-23-010. Parcel 11: if The East half of the East half of the Northwest quarter of Section 9, Township 5 South, Range 6 East, San Bernardino Base and Meridian, as shown by United States Government Survey approved July '-' 15, 1956; EXCEPTING therefrom the North 55.00 feet thereof as conveyed to the County of Riverside by Deed recorded April 7, 1958, as Instrument No. 25029 and October 12, 1972, as Instrument No. 136515, both of Official Records of Riverside County, California. Assessor's Parcel No. 621-23-011. -3- Parrrcl 1 7 - The West 4 of the East 1 of the Northwest 4 of Section 9, Township 5 South, Range 6 East, San Bernardino Base and Meridian, except the Northerly 44 feet thereof as conveyed to the County of Riverside. and such public roads as shall be necessary to construct and operate said service in and upon said parcels, for a transmitting and distributing electrical impulses and signals to produce reproductions of sights and sounds for television or radio and other communication purposes. (a) "Public roads" as used in this license means for any public highway, road, street, lane, alley, court, sidewalk, parkway, or easement therefor, dedicated or offered for dedication to the City of Palm Desert. (2) Licensee shall: (a) Construct, install and maintain all equipment and facilities in accordance with all requirements of the City, and shall make no installation or excavation, in, on or over any road under City's jurisdiction without first obtaining an encroachment permit pursuant to any City regulations dealing with excavation and encroachments. In any State highway, Licensee shall abide by all provisions of State laws and regulations relating to the construction, location and maintenance of such equipment and facilities. In any area of the City where existing pole lines of a public utility company are reasonably available for use by Licensee pursuant to a pole attachment agreement with the public utility company, Licensee shall not erect any poles for the purpose of installing its operating equipment. (b ) Pay to the City on demand the cost of all repairs to public property made necessary by any of its operations, together with maintaining insurance protecting the City against any damage to said public property. (c) Indemnify and hold the City, its officers, and employees harmless from all liability for damages resulting from all operations under this license. -4- (d) Remove, relocate or place underground at its own expense, any equipment and facilities installed under this license, if the City determines that it is necessary for construction of a new road, change of grade, alignment or width of any existing road, or the construction, use or maintenance of any bridge, subway, viaduct or other public work, or the use of any public property, or the construction, maintenance or relocation of any installation of a public utility operating under a franchise. (e) Take out and maintain public liability insurance satisfactory to the City to protect Licensee and the City, its officers and employees, against the loss from liability imposed by law for damages on account of bodily injury, including death resulting therefrom, and property damage, suffered or alleged to be suffered by any person or persons whatsoever resulting directly or indirectly from any {- act or omission of Licensee or any person acting under Licensee's control or direction. The insurance shall be kept in force during the term of this license in the amounts of not less than $250,000.00 for one person injured in one accident and not less than $500,000.00 for more than one person injured in one accident, and not less than $50,000.00 property damage. Proof of insurance shall be filed with the City Clerk of the City of Palm Desert. (f) Participate in negotiations with the City Manager, in cooperation with the City Attorney, to rewrite a franchise agreement at such time as the new cable television enabling ordinance is adopted by the City and franchise agreements pursuant to such enabling ordinance are negotiated with other cable operators operating under the `-' jurisdiction of the City. (3) In any area of the City where either the transmission and distribution facilities of a public utility providing telephone service or a utility providing electric service are underground or hereafter may be placed underground, then the Licensee shall also place or relocate -5- all of its transmission amplification and distribution facilities underground, at no cost to the City. Nothing contained herein shall prevent the Licensee from charging or obtaining compensation for placing lines underground from the public right-of-way to the structure involved. (4) Licensee, in making its service available shall not discriminate for or against any suppliers of television sets, and in those areas where service is made available, Licensee shall provide service to all applicants in the order of receipt of orders therefor, so far as possible. (5) The County, State, City or public agency may construct, repair or maintain any existing road, or portion thereof, or other public facility in which Licensee's equipment and facilities have been constructed or installed, and may remove any such road or other public improvement. Upon 30 days' notice being given to the Licensee of the work, and area in which it is to be performed, the Licensee shall do all things necessary to protect its property during the progress of the work and, if ordered by the governmental agency performing such work, Licensee shall disconnect, remove or relocate its property in such manner as shall be required to permit the performance of the work, and the maintenance, operation and use of the road or public improvement. Any private easements acquired by Licensee for the construction and installation of the equipment and facilities shall be construed to be subordinate to the rights of the City, presently existing or hereafter acquired, for future road construction or reconstruction. Ail of such things to be done and work to be performed shall be at the sole cost and expense of Licensee. (6) If the State, County, City or public agency shall acquire the property of the Licensee, either by purchase or through the right of eminent domain, the Licensee shall not be assigned any value, before any court or other public authority, in excess of the sum paid by the -6- Licensee to the City at the time of the issuance of the license. (7) Licensee shall submit to the City Council a schedule showing all its rates and charges for services rendered to customers under this license. No charge shall be made except in accordance with the schedule submitted to, • and not disapproved by, the City. If the City Council .J disapproves Licensee's rate schedule, it shall set a rate hearing on its regular calendar as soon as reasonably possible thereafter, and give notice to Licensee of the hearing. Licensee shall attend the hearing fully prepared to give specific and detailed information regarding its capital investment, expenses of operation, income, equipment, amortization schedule, and all other information necessary for a determination of fair and just rates for services rendered. The City shall allow and provide for a fair and reasonable return upon investment to the Licensee. In the event the California Public Utilities Commission assumes jurisdiction over the operation and rates of the Licensee, then the authority of the City to approve charges shall cease. Upon submission to the Council by the Licensee of a request for consideration of a rate increase, the Licensee shall pay a fee of $100.00. (8) This license shall not be construed to impose upon the City any duty or obligation to construct, repair or maintain any road in which Licensee's property is located. (9) Licensee shall pay to the City of Palm Desert, in addition to any business license that may hereafter be adopted, the sums set forth hereinafter of the gross subscriber revenue derived from the operation of Licensee's television antenna cable service in Palm Desert: n Two percent (2%) of the gross subscriber revenue drive from the operation of Licensee's television antenna cable service in Palm Desert from the date of first receipt of revenue for a period of two years thereafter. Any change thereafter in the rate shall be negotiated -7- 1 between the parties hereto reflected by a resolution of the City Council of the City of Palm Desert. Gross subscriber revenues shall be those revenues derived from the supplying of basic subscriber entertainment services, that is, the installation fees, connection and reconnection fees and fees for basic 4 a entertainment cable benefits, including the transmission of t_ broadcast signals and access and origination channels, if any. Licensee shall estimate quarterly the gross subscriber revenue for the year and shall pay an estimated amount based on said quarterly estimate to said City within 30 days after the expiration of each calendar quarter following the issuance of this license. No later than ninety (90) days after the expiration of each calendar year, a statement certified by an officer of Licensee showing the total gross receipts of the licensee during the preceding year derived from Licensee's cable service business shall be filed with the City of Palm Desert and within 14 days thereafter Licensee shall forward to the City of Palm Desert any necessary amount to equal to adjusted payment for the year. (10) The television cable service to be constructed, operated and maintained under this license shall have the minimum capabilities from inception as detailed in Licensee's proposal to the City of Palm Desert, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein as if set forth at length. (11) Licensee shall form or cause to be formed, an organizational maintenance unit with personnel of sufficient numbers and technological capability and with full financial abilities to operate and maintain the television antenna i cable service herein provided for, in such a manner, and to i- such standards as to be satisfactory to the subscribers of said service and to the City. Nothing herein shall be construed to prevent Licensee from contracting with an organization, agency, or business, for the purpose of said operation and maintenance, provided such contract shall first be submitted to City for its approval. The responsibility of the Licensee for continuing operation and maintenance of the service shall run with the term for which this license is granted and may not be traded, given, sold, transferred or assigned in whole or in part, to others in any manner other than as herein provided. "Standards -- satisfactory to the subscribers --- and the City" shall include but not necessarily be limited to: a) In -home installation and full operation within three working days (excluding Sundays) of a request for'service. b) Field response to service complaints within 24 hours of receipt of complaint. Subscriber may have lodged complaint either by telephone or in writing. c) Correction of service malfunctions within two working' days (excluding Sundays) of receipt of complaint. d) Requirement that Licensee's maintenance unit stock an adequate inventory of all system parts which can reasonably be expected to require replacement under condition of malfunction. Time required to order such parts or to repair parts shall not be recognized as a justifiable reason for a delay in restoring a subscriber's service. (12) This franchise may be terminated prior to its date of expiration by the City Council in the event that said Council shall have found after thirty days' notice of proposed termination and public hearing, that (a) the Licensee has failed to comply with any provision of this ordinance or any reasonable technical standards adopted by the City to assure adequate service, or has, by act or omission violated any term or condition of any franchise or permit issued under this ordinance; or (b) any provision of this ordinance become invalid or unenforceable, and the City Council further finds that such provision constitutes a consideration material to the grant -of said franchise; or consideration material to the grant of said franchise; or (c) the City acquires the CVTV property of Licensee. (13) Licensee shall file an approved corporate„ surety bond or letter of credit, in favor of the City in the penal sum of $80,000.00, conditioned that Licensee shall well and truly perform every term and any condition hereof and in case of any breach of condition, the whole amount of the penal sum shall be taken and deemed to be liquidated damages and shall be recoverable from the principal and surety upon said bond. The bond shall be filed with the City Clerk within ten (10) days after issuance of this license. A cash deposit in the same amount may be made in lieu of said bond. This license shall not be effective until Licensee has filed an approved bond. f (14) This license is issued pursuant to California jGovernment Code, Section 53066; and is not exclusive. The l same shall not be transferable without prior approval of the City Council of the City of Palm Desert, except to a nominee corporation in which licensee is the majority shareholder, nor may the Licensee sell or transfer its equipment or operation to another or transfer more than 50% of the stock of the corporation to any other individual, partnership or other entity. All rights, obligations and duties are binding on the Licensee, its successors and assigns. SECTION 2: The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert and the same shall be in full force and effect thirty (30) days after its adoption. -10- PASSED, APPROVED and ADOPTED this 14th day of October 1982, by the following vote: AYES: McPherson, Newbrander, Puluqi & Wilson NOES None -11- ORDINANCE N L9 1 Licensee hereby accepts and agrees to faithfully perform and abide by all the terms and conditions of this license and understands that this license is not effective until an approved surety bond has been fil Dated: NO v Q &", bQ �- �9 , 1982 WEETAM BONE, ing busingss as SUNRISE COMPANY -12-