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Ordinance 759 ORDINANCE NO. 759 AN ORDINANCE OF THE CITY OF GILROY AMENDING THE GILROY CITY CODE BY ADOPTING AND ADDING THERETO CHAPTER 24-A, ENTITLED "COMMUNITY ANTENNA TELEVISION SYSTEMS"; PROHIBITING THE ESTABLISHMENT, OPERATION OR CONDUCT OF THE BUSINESS OF DIS- TRIBUTING TO ANY PEOPLE IN THE CITY ANY TELEVISION OR RADIO SIGNALS BY MEANS OF ANY COMMUNITY ANTENNA TELEVISION SYSTEM UNLESS A FRANCHISE THEREFOR IS OBTAINED FROM THE CITY; PROHIBITING THE CONSTRUCTION, INSTALLATION OR MAINTENANCE OF ANY COMMUNITY ANTENNA TELEVISION SYSTEM EQUIPMENT OR FACILI- TIES IN ANY PUBLIC STREET, PUBLIC PLACE OR PROPOSED PUBLIC STREET IN THE CITY UNLESS A FRANCHISE THEREFOR IS OBTAINED FROM THE CITY; PROVIDING FOR THE GRANTING OF. AND PRESCRIB- ING A PROCEDURE FOR THE GRANTING OF, NON-EXCLUSIVE FRAN- CHISES FOR SAID PURPOSES BY THE CITY, SUBJECT TO VARIOUS TERMS, REGULATIONS AND CONDITIONS; PROVIDING FOR THE REGU- LATION OF RATES AND SERVICE; PROHIBITING THE UNAUTHORIZED CONNECTION TO ANY COMMUNITY ANTENNA TELEVISION SYSTEM FOR THE PURPOSE OF TAKING ANY SIGNAL OR IMPULSE THEREFROM WITH- OUT PAYMENT THEREFOR; PROHIBITING THE UNAUTHORIZED TAMPER- ING, DAMAGING OR REMOVAL OF ANY PORTION OF ANY SUCH SYSTEM; ESTABLISHING VARIOUS TERMS, REGULATIONS. REQUIREMENTS AND CONDITIONS WHICH MUST BE COMPLIED WITH BY ANY PERSON ESTAB- LISHING, OPERATING OR CONDUCTING A COMMUNITY ANTENNA TELE- VISION SYSTEM; AND OTHERWISE REGULATING AND RELATING TO COMMUNITY ANTENNA TELEVISION SYSTEMS. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF GILROY: The Gilroy City Code is hereby amended by adopting and adding thereto the following Chapter 24A, to wit: Chapter 24A Community Antenna Television Systems. Article I. In General Sec. 24A-l. General. For purposes of this Chapter, certain words, phrases and terms used in this Chapter and hereinafter defined in t his Part shal I be deemed to have the meanings specified in this Part unless it is apparent from the text that a different meaning is intended. Sec. 24A-2. "CATV" Defined. "CATV" means a community antenna television system as hereinafter defined. Sec. 24A-3. "Community Antenna Television SystemJ1 Defined. "Community Antenna Television SystemJ1 means a system of antenna, coaxial cables, wires, wave guides, or other conductors, equipment or facilities designed, constructed or used for the purpose of receiving television or radio signals of all programs broadcast or transmitted by one or more television or radio stations and conduct- ing and distributing all said signals, either amplified or not, to television or radio receiving sets of persons subscribing to such service, In return for certain compensation for all such programs as distinguished from certain compen- sation for each separate program. A "Community Antenna televisIon system" shall not be deemed to include "pay television" as such term is hereinafter defined. 759 - 1 - Sec. 2lt.A-4. "Pay Televisionll Defined. IlPay Televisionll means a system of coaxial cables, wires, wave guides, or other conductors, equipment or facilities designed, constructed or used for the purpose of broadcasting, conducting, distri- buting or transmitting television signals of certain television programs of one or more television stations, as distinguished from all programs of such stations, to television receiving sets of persons subscribing to such service, or for the purpose of unscrambling and making clearly discernible on the screens of television receiving sets of persons subscribing to such service certain television programs of one or more television stations, in return for certain compensation for each such special program. Sec. 24A-5. IIF.H.II Defined. L. IIF.M.II means frequency modulation radio transmission. Sec. 24A-6.. IIGross Annual Receiptsll Defined. IIGross annual receiptsll means any and all compensation and other consideration, in any fonm whatsoever, and any contributing grant or subsidy, received directly or indirectly by a grantee from subscribers or users of a CATV system in payment for television or radio signals or service received with the City from such CATV system, excluding installation fees and line extension fees. Gross annual receipts shall not include any taxes on services furnished by the grantee imposed directly on any user or subscriber by any City, State or other governmental unit and collected by the grantee for such governmental unit. Sec. 24A-7.. IlGranteell Defined. "Granteell means the person to whom or which a franchise is granted by the Council pursuant to the provisions of this Chapter, and the lawful successor or assignee thereof. Sec. 2l~_8. "Property of G,ranteell Defined. "Property of grantee" means all property owned, installed or used by a grantee in the conduct of a CATV bus- iness in the City. Sec.. 24A-9. IlService Area" Defined. "Service area" means the area in which grantee is permitted to provide subscribers with CATV service pursuant to a franchise granted under the provisions of this Chapter. Sec. 24A-10. "Street" Defined. IlStreetll means the surface of, and the space above and below, a public street, road, highway, freeway, lane, alley, court, sidewalk, easement, parkway or drive now or hereafter existing as such with the City.. Sec. 24A-ll. IISubscrl ber" Def i ned. IISubscr i ber" means any pe rson receiving for any purpose any CATV service provided by a grantee. - 2 - Article 2. General Provisions Sec. 24A-12. Purpose of Chapter. It is hereby declared and determined that the business of establishing and/or operating a CATV system for the purpose of supplying any persons in the City of Gilroy with television signals or radio signals by means of such CATV system, or the establishing or carrying on of any business within the City of Gilroy which is designed to or does furnish any CATV services to the inhabitants of the said City, is in the nature of a public utility and, as such, should be regulated by the City. Also, the use of any public street or public property, or of any area proposed to be a public street, for any of the above purposes is of great concern to the City and should be regulated by the City. It is the purpose of this Chapter to provide such regulation. Sec. 24A-13. Activities Which Are Unlawful Unless Authorized By City Franchise. It shall be unlawful for any person to establish, operate or to carry on the business of distributing to any persons in this City any television signals or radio signals by means of a community antenna television system unless a fran- chise therefor has first been obtained pursuant to the provisions of this Chapter, and unless such franchise Is In full force and effect. It shall also be unlawful for any person to construct, install or maintain within any public street in the City. or within any other public property of the City, or within any privately-owned area within 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, any equipment or facilities for distributing any television signals or radio signals through a community antenna television system, unless a franchise authorizing such use of such street or pro- perty or area has first been obtained pursuant to the provisions of this Chapter, and unless such franchise is in full force and effect. Sec. 24A-14. Authority of Council to Grant Franchises. Whenever it deems such to be for the public good, the Council, subject to other provisions of this Chapter, may and is hereby empowered to grant, by ordinance, to any person, whether operating under an existing franchise or not, a non-exclusive franchise to operate or carryon the business of distributing to people in the City, or to people in a certain area or areas in the City, television signals or radio signals by means of a community antenna television system, and/or to construct, install or maintain within specified public streets in the City, or within other specified public pro- pertyof the City, or, subject to approval of the owner of such private area, with- in any privately-owned area in the City which has not yet become a public street - 3 - but which is designated or delineated as a proposed public street on any tentative subdivision map which has been approved by the City, any equipment or facilities for distributing television signals or radio signals by means of a community antenna system. Sec. 24A-IS. Terms and Conditions. All franchises issued hereunder shall be non-exclusive. No provision of this Chapter shall be deemed to require restrict- ing the number of franchises to one or any particular number; and no provisions of this Chapter shall be deemed to prohibit or prevent the Council from refusing to grant any franchise or franchises If and whenever It finds or believes that the grant of any such franchise or franchises is not for the public good. All franchises shall be subject to terms and conditions specified in the Code of the City of Gilroy and to terms and conditions specified in this Chapter. Also, in granting any franchise, the Council may prescribe such other and addition- al terms and conditions, not in conflict with said Code or this Chapter, whether governmental or contractual in character, as In the judgment of the Council are in the public interest or as the people, by initiative, indicate they desire to have so imposed. Article 3. Procedure for Grant of Franchise Sec. 24A-16. Filins. All applications for franchises under the provisions of this Chapter shall be in writing, and shall be filed in the office of the City Clerk. Sec. 24A-17. Contents. Each application for a franchise shall contain the following information: (a) The name and address of the applicant. If the applicant is a partner- ship, the name and address of each partner shall also be set forth. If the appli- cant Is a corporation, the application shall also state the names and addresses of Its directors, main offices, major stockholders and associates, and the names and addresses of parent and subsidiary companies. (b) A statement of the type of franchise applied for, and a general description of what applicant proposes to do pursuant to the requested franchise. (c) A statement and description of the CATV system proposed to be construct- ed, installed, maintained or operated by the applicant; the proposed location of such system and its various components; the manner In which applicant proposes to construct, Install, maintain and operate the same; and, particularly, the extent and manner in shich existing or future poles or other facilities of other public utilities will be used for such system. - 4 - (d) A description, in detail, of the public streets, public places and proposed public streets within which applicant proposes or seeks authority to construct, install or maintain any CATV equipment or facilities; a detail des- cription of the equipment or facilities proposed to be constructed, installed or maintained therein; and the proposed specific location thereof. (e) A map specifically showing and delineating the proposed service area or areas within which applicant proposes to provide people of the City with CATV services and for which a franchise is requested. (f) A financial statement prepared by a certifIed public accountant, or otherwise satisfactory to the Council, showing applicant's financial status and hIs financial ability to complete the construction and Installation of his proposed CATV system. (g) A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation with respect to the proposed franchise or the proposed CATV operation. If a franchise is granted to a person, finm, group or corporation posing as a front or as the representative of another person, finn, group 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. The Council may at any time demand, and applicant shall provide, such supplementary, additional or other infonmation as the Council may deem reasonably necessary to detenmine whether the requested franchise should be granted. Sec. 24A-18. Resolution Giving Notice of Application and of Time and Place of Hearing Thereon. Upon receiving an application for a franchise under the provisions of this Chapter, the City Clerk shall present the same to the Council at Its next regular meeting. The Council shall thereupon, or within a reasonable time thereafter, pass a resolution giving notice of the application and of the time and place of a public hearing thereon. The resolution shall give notice that an application has been filed for a CATV franchIse under and pursuant to the provisions of this Chapter, shall refer to the application on file in the office of the City Clerk for full information respecting such application, and shall contain a notice of the time and place the Council will hear persons desiring to be heard in favor of or in opposition to the granting of a franchise to appli- cant. Sec. 24A-19. Date of Hearing; Publication of Resolution. The hearing on an application for a franchise shall be held not earlier than the fourteenth (14th) - 5 - day immediately following the date of adoption of the resolution giving notice of the application. The City Clerk shall cause the resolution giving notice of the application and of the time and place of hearing thereon to be published in a news- peper of general circulation In the City at least twice, the first publication to be not later than the tenth (10th) day immediately preceding the date of hearing. See. 24A-20. Hearing of Application. At the hearing on an application for a franchise, the Council shall give all persons desiring to be heard a reasonable opportunity to present evidence or to be otherwise heard in favor of or in opposi- tion to the granting of a franchise to the applicant. At such hearing, the Council may demand such additional infonnation as it may deem relevant and necessary. The hearing may be continued or adjourned, from time to time, to a stated time and place without the giving of further notice. Sec. 24 A-21. Council's Decision of Application. Upon conclusion of the hearing on the application for a franchise, or within a reasonable time thereafter, the Council shall render Its decision thereon. If it deems such action to be for the public good, it may refuse to grant the requested franchise, or it may, by ordinance, grant the same, or It may, by ordinance, grant such other CATV franchise as it may deem to be for the public good, subject to such terms, conditions, rules, regulations, restrictions end limitations, governmental or contractual in nature, as it may deem advisable to protect individual subscribers to the services of the CATV system, to preserve the rights, interests and liability of the City in its streets and public places, and to otherwise protect the interests of the City and its people. In making its decision, the Council may consider whether the applicant is qualified, or better qualified than others, to render prompt and efficient CATV service to subscribers; equality of service; rates to the subscriber; income to the City; experience and financial responsibility of the applicant; and any other consideration that will safeguard the CityJs public interest. The CATV franchise granted by the Council to the applicant need not be identical to or the same as that requested by applicant, but may vary or be differ- ent therefrom. For example, the rights or privileges granted thereby may be less or more limited than those requested by applicant. No franchise shall be granted except by ordinance. No franchise shall become effective unless and until all things required by the provisions of Part 4 of this Chapter have been done and completed. - 6 - Article 4. Conditions Precedent to Effectiveness of Franchise Sec. 24A-22. General. No franchise granted pursuant to the provisions of this Chapter shall become effective unless and until the ordinance granting the same has become effective and, in addition, unless and until all things required of the grantee by the provisions of this Part 4, all of such things being hereby declared to be conditions precedent, are done and completed. In the event any of such things are not done and completed in the time and manner required, the Council may declare the franchise null and void. Sec. 24A-23. Acceptance of Franchise, and Agreement to Comply. Within twenty-five (25) days after the effective date of the ordinance awarding a fran- chise, or within such extended period of time as the Council in its discretion may authorize, the successful applicant or grantee shall file with the City Clerk his written acceptance, in form satisfactory to the City Attorney, of the franchise, together with his agreement to be bound by and to comply with and to do ell things required of him by applicable provisions of the City's Charter, provisions of this Chapter and provisions of the franchise. Such acceptance and agreement shall be acknowledged by the successful applicant before a notary public, and shall in form and content be satisfactory to and approved by the City Attorney. Sec. 2L~-24. Faithful Performance Bond. Within twenty-five (25) days from and after the effective date of the ordinance awarding the franchise, or within such extended period of time as the Council in its discretion may authorize, the grantee shall file with the City Clerk, and at all times thereafter maintain in full force and effect, an acceptable corporate surety bond, in duplicate, in the amount of Fifth Thousand ($50,000.00) Dollars, effective for the entire term of the franchise, and conditioned that in the event the grantee shall fail to comply with and do all things required of him by applicable provisions of the City's Charter, by provisions of this Chapter, or by provisions of the franchise, then there shall be recoverable by the City, jointly and severally from the principal and surety of such bond, any damages suffered by the City as a result thereof, including but not limited to the full amount of any franchise fee, compensation, indemnification, or cost of removal or abandonment of property, owing by grantee to City pursuant to the provisions of this Chapter or of said franchise, for which grantee may be in default, up to the full amount of the bond, said condition to be a continuing obligation for the duration of the franchise and thereafter until the grantee has liquidated and satisfied all of its obligations to the City that may have arisen from the acceptance of said franchise by the grantee or from the - 7 · exercIse of any privilege herein grented. Neither the provisions of thIs section nor any bond accepted by the City pursuant thereto, nor the recovery by City of eny damages shalt be construed to excuse faithful perfonmence by the grantee of ell obligations which he may have under this Chapter or under said franchise, nor excuse or limit grantee's liability for any damages, either to the full amount of the bond or otherwise. The above mentioned bond shall be In form satIsfactory to and approved by the City Attorney. Sec. 24A-25. Public Liability Insurance. WithIn twenty-five (25) days from and after the effective date of the ordinance awarding the franchise, or within such extended period of time as the Council in its discretion may authorize, the Grantee shall furnish and file with the City Clerk, and at all times thereafter maintain in full force and effect, at grantee's sole cost and expense, a general comprehensive insurance policy. In a company authorized to do business in the State of California, said policy to be in fonm satisfactory to the City Attorney, protecting the City, its Boards, commissions, officer. agents and employees, from and against any and all loss, damages or liability for damages, and from all suits or actions, for or because of bodily injury, death and property damage occasioned by operations or omissions of grantee under said franchise. Both bodily injury liability coverage and property damage liability coverage must be on an occurrence basis; and saId policy shall provide that the Insurance afforded to the City, its boards, commIssions. officers, agents and employees, shall be pri- mary insurance to the full limits of liability stated in the declarations, and if City, its boards, commissions, officers, agents or employees, have other insurance against a loss covered by said policy that other insurance shall be excess insur _ ance only. Said policy of insurance shall provide coverage in the following minimum amounts: For bodily injury liability $250,000 per each person, and $500,000 per each occurrence; for property damage liability $500,000 on account of on anyone occurrence. The policy mentioned in the foregoing paragraph 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 insurance is provided by a policy which also covers grantee or any entity or person other than those above named, then such policy shall contain a standard cross-liability endorsement. - 8 - Sec. 24A-26. Public Utility Contracts. Within one hundred eighty (180) days from and after the effective date of the ordinance awarding the franchise, or within such extended period of time as the Council in its discretion may authorize, the grantee shall file with the City Clerk copies of all contracts which it may have with all public utility companies, Including but not limited to the Pacific Telephone and Telegraph Company and the Pacific Gas and Electric Company, whereby grantee is granted any right to use any of the property, equip- ment or facilities of such utility or utilities In the conduct of any operations pursuant to the franchise awarded to said grantee. Article 5. Conditions, limitations. Reservations, Restrictions and Requlations. Sec. 24A-27. Term of Franchise. Any franchise granted under the provisions of this Chapter shall be for such term as the Council may specify; excepting, however, that no franchise shall be granted for a term in excess of twenty-five (25) years from and after the effective date of the ordinance which grants the same. Sec. 24A-28. Right of Council to Terminate Franchise Before End of Term. The Council shall have the right to terminate any franchise granted pursuant to the provisions of this Chapter If it finds, after public hearing following not less than fifteen (15) days notice to grantee, that: (a) Grantee has failed to comply with, or to do anything required of him ~y, applicable provisions of the City's Code, provisions of this Chapter or pro- ~isions of the franchise; or that grantee has violated any term, condition or pro- visions of said Code, Chapter or franchise or of any permit issued pursuant there- to; or (b) Any provision of this Chapter beCbffies or is delcared to be inValid and the Council expressly finds that such provisIon constitutes a material consid- eratlon to the grant or continuance of said franchise; or (c) The City acquires the CATV system property of grantee. Sec. 24A-29. Restricted Use of CATV System. The CATV system authorized by any franchise granted under the provisions of this Chapter shall be used solely and exclusively for the purpose or purposes expressly authorized by the franchise, and for no other purpose. Sec. 24A-30. limited Rights and Prlvileges of Grantee. no right, privilege or exemption is granted or conferred to, or otherwise acquired by, a grantee of a franchise awarded pursuant to this Chapter except those expressly and specifically - 9 - granted to him in and by the franchise. Sec. 24A-31. Franchise Subordinate to Public Utility Franchises. All franchises granted under the provisions of this Chapter are and shall be subordin- ate to any existing public utility franchises, any public utility franchises here- after granted, or any lawful occupancy of any public highway, street, easement, road or other public property for the purpose of erecting poles, lines, conduits, cables, pipelines and other necessary fixtures and appurtenances where the same are used in connection with the purposes of the existing public utility franchise or any public utility franchises hereafter granted or any extension thereof. Sec. 24A-32. Franchise Subordinate to Public Use of Public Property. All franchise granted under the provisions of this Chapter, and all rights and privil- eges granted thereby, are and shall be subordinate to the right of City, and of the general public, to use and occupy, and any occupancy by them of, any public street or public property for municipal or public purposes, including but not limited to occupancy or use of such streets and property for the traffic purposes, and for poles, lines, conduits, cables, pipelines and other municipal or public uses or purposes. Sec. 24A-33. Restrictions on Assignments or Transfers. Any franchise granted pursuant to this Chapter is a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned, or disposed of, either in whole orin part, either by forced sale, merger, c~nsolidation or otherwise, without the prior consent of the Council expressed by o,rdinance, and then only 'under such conditions and terms as may be prescribed b'y the Council; provided, however, that no such consent shall be required for any transfer in trust, mortgage orother hypothecation, as a whole, to secure an indebtedness. No sale, transfer, lease, assignment or other disposition shall relieve a grantee from any of its duties and obligations under such franchise. Sec. 24A-34. Time of Essence. Time is and shall be of the essence of any franchise granted under this Chapter. The grantee shall comply, and shall not be relieved of his obligation to comply, promptly with each and every provisions of this Chapter and of the franchise. He shall not be deemed relieved of such obli- gation by or because of the failure of the City to enforce prompt compliance. Sec. 24A-35. Rights, P~ers and Duties of City Officers or Employees to be Transferable. Any right, or power, or duty given to or impressed upon any officers. employee, department. or board of the City shall be subject to transfer by the City to any other officer, employee, department or board of the City. - 10 - Sec. 24A-36. No Recourse Against City for Loss. The grantee shall nave no recourse whatsoever against the City, its officers, employees or agents for any loss, cost, expense or damage, arising out of any provision or requirement of this Chapter or of any franchise issued under such Chapter, or because of its enforcement. Sec. 24A-37. Grantee.s Rights Subje~t to Applicable City Requirements. Grantee and all rights granted to him under this Chapter shall be subject to all applicable requirements of the City's Municipal Code and of all ordinances, rules, regulations and specifications of the City, heretofore or hereafter enacted or established, including, but not limited to, those concerning street work, street excavation, use, removal and relocation of property with a street, and other street worl<, and Grantee shall comply wi th the same. Sec. 24A-38. Grantee Not Relieved of Other Obligations. tlothing in this Chapter, or in any franchise granted under this Chapter, shall be deemed to give any grantee of any such franchise any right to occupy or use any poles, conduits, cables or any other property, owned by the City or any public or private person or body, situate within any street or in any other place, without obtaining special penmission therefor from the owner thereof or without paying such consideration or assuming such obligations therefor, or complying with such conditions, limitations, tenms and restrictions, as the owner thereof may impose or require, except to the extent the franchise may expressly, clearly and specifically give such right with respect to specified property owned by the City. Sec. 24A-39. Franchise to be Non-Exclusive. Any franchise granted under the provisions of this Chapter shall be non-exclusive, and neither the granting of such a franchise nor any of the provisions contained therein shall prevent the City from granting any identical, similar or different franchise to any person other than grantee for all or any areas of the City. Sec. 24A-40. Indemnification of City. The grantee shall indemnify, and shall agree to indemnify, the City, its officers and employees, against all claims, demands, actions, suits and proceedings by others, and against all liability to others, and against any loss, cost and expense resulting therefrom, including reasonable attorney.s fees, arising out of or resulting from the exercise or enJoy- ment of any franchise or any act or omission of grantee with respect thereto, irrespective of the amount of the comprehensive liability insurance policy required hereunder. Sec. 24A-41. Operational Standard~. Any CATV system installed by Grantee - 11 - pursuant to any franchise shall be installed and ma'nta'ned In accordance with the highest and best accepted standards of the industry so that subscribers shall receive the highest possible quality service. The grantee shall furnish and maintain such adequate, efficIent, just and reasonable service, instrumentalities, equipment, and facilities as are necessary to promote the safety, health, comfort and convenience of its subscribers, employ- ees and the public. The Council shall have the right and power to establish such minimum standards as it may deem advisable for the above purposes, and grantee shall comply with them. Sec. 24A-42. Inspection of Pnoperty and Records. At all reasonable times, the grantee shall permit any duly authorized representative of the City Engineer and/or the Director of Finance to examine all franchised property, togeth~r with any appurtenant property of the grantee situated within or without the City, and to examine and transcribe any and all maps and other records kept or maintained by the grantee or under its control which involves ~G operations, affairs, trans- actions, or property of the grantee with respect thereto. If any of s~ch maps or records are not kept in the City, then upon request, they shall be made available in the City. The grantee shall, at all times, make and keep in the City full and complete plans, maps and records showing the exact location of all CATV equipment installed or in use by grantee in the streets, alleys and public places of the City. Sec. 24A-43. Reports to City Officers. The grantee shall prepare and furnish to the City Engineer and Director of Finance and City Auditor at the ti mes and in the form prescribed by either of said officers, such reports with re~pect to its operations, affairs, transactions or property, as may be reasonably neces- sary or appropriate to the performance of any of the rights, functions or duties of the City or any of its officers in connection with the franchise. Sec. 24A-44. Annual Maps to City Engineer. The grantee shall file with the City Engineer on or before the last day of March of each year, a current map or set of maps drawn to a scale to be designated by said City Engineer, showing all CATV system equipment installed in the streets, alleys and public places of the City during the previous year. Sec. 24A-45. Property in Streets or Other Public Places; Location. Pro- perty of the grantee shall be constructed or installed in streets only at such locations and in such manner as shall be approved by the City Engineer of the City - 12 - of Gilroy, acting in the exercise of reasonable discretion. Construction or in- stallation of property of grantee in all other public places shall be subject to prior approval of and regulation of the City Council. Sec. 24A-46. Property In Streets and Public Places; Removal in Case of Abandonment or in Case of Tenminatfon of Franchise. In the event the franchise has been cancelled or terminated for any reason, or in the event the City Council finds and determines that the use of any property of grantee has been abandoned for a period of six (6) months, or In the event any property of grantee has been Installed in any street or other public place without complying with the require- ments of this Chapter or the franchise granted by the City, then such property of grantee shall be promptly removed, other than that which the Council may permit to be abandoned In place. In the event of any such removal, the grantee shall promp- tly restore the street or other area from which the property has been removed to a condition satisfactory to the City Engineer. Property of grantee to be abandoned in place shall be abandoned in such manner as the City Engineer shall prescribe. Upon permanent abandonment of any such property in place, the grantee shall submit to the City Administrator an instrument, satisfactory to the City Attorney, transferring to the City the owner- ship of such property. Sec. 24A-47. When Facilities Must Be UnderQround. In those areas or por- tions of the City where the transmission or distribution facilities of the public utility companies providing telephone service and electrical service are under- ground, or are hereafter required to be placed underground by the City, the gran- tee shall likewise construct, operate and maintain all transmission and distribu- tion facilities underground. Amplifiers on the transmission and distribution lines may be located In appropriate metal, concrete boxes or vaults, or other materials approved by common usuage as prescribed by the City Engineer. Sec. 24A-48. ChanQes Required By Public Improvements. The grantee shall, at its own expenses, protect, support, temporarily disconnect, relocate in the same street, alley or public property or place, or remove from any street, alley or public property or place, any of its property when required by the City Engine- er by reason of traffic conditions, public safety, street vacation, freeway or street constructions, street widening, change or establishment of street grade, Installation of sewers, drains, water pipes, power lines, signal lines, and tracks, or any other type of structures or Improvements by City or other governmental agencies when acting In a governmental or proprietary capacity, or any other structures or public improvements. - 13 - Upon failure of the grantee to commence, pursue or complete any work re- quired by law or by the provisions of this Chapter or by any franchise to be done in any street, public place or public property, within the time prescribed and to the satisfaction of the City Engineer, the City Engineer may, at his option, cause such work to be done and the grantee shall pay to the City the costs thereof within thirty (30) days after receipt of an itemized report of such costs from the City Engineer. Sec. 24A-49. Street Occup4ncy. In addition to other requirements of this Chapter, the grantee of any franchise granted under the provisions of this Chapter shall do all things required of him by the following provisions and otherwise comply with the following provisions: (a) ~. All distribution and other structures, lines, equipment and pro- perty erected or placed by the grantee within the City shall be so located as to cause no interference with proper use of streets, alleys and other public ways and property, and to cause no interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways or property. (b) Restoration. If grantee disturbs any pavement, sidewalk, driveway or other surfacing or other Improvements within any streets, alleys or other public ways or other public property. the grantee shall, at its own cost and expense, replace and restore all paving, sidewalk, driveway or other surfacing or other improvements disturbed, in as good condition as before said work was commenced, and to the satisfaction of the City Engineer. (c) Relocation. If at any time during the term of such franchise the City shall elect to alter, change the grade of, or construct any street, alley or other public way, or any public property, the grantee, upon reasonable notice by the City, shall remove and relocate its structures, lines and equipment, at its own cost and expense, to the extent the City deems such to be reasonably necessary for the above purpose. (d) Temporary Removal. The grantee shall, at the request of any person who holds a building moving permit issued by the City, temporarily remove, raise or lower its wires to permit the moving of buildings. The expense of such tempor- ary removal, raising or lowering of wires shall be paid by the person requesting the same. Sec. 24A-50. Rights Reserved to City. There is hereby reserved to the City every right and power which is required to be herein reserved or the exercise of which is provided for by any provision of any lawful ordinance or resolution of the City heretofore or hereafter enacted, and the grantee by Its acceptance _ lh _ of any franchise agrees to be bound thereby and to comply with any action or requirement of the City in its exercise of any such right or power. Sec. 24A-51. Franchise No Bar to Exercise of Governmental Right or Power. Neither the granting of any franchise, nor any provision thereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City. Sec. 2l~-52. Power of City to Amend Chapter. The power to amend any section of part of this Chapter so as to require additional or greater standards of construction, operation, maintenance or otherwise, on the part of the grantee, is hereby expressly reserved to City. Sec. 24A-53. Controversies. Etc. The City Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this Chapter and may determine any question of fact which may arise during the existence of any franchise issued under the provisions of this Chapter. The City Administrator is hereby authorized and empowered to ag ust, settle, or compromise any controversy or charge arising from the operations of any grantee under this Chapter, either on behalf of the City, the grantee, or any subscriber, in the best interest of the public. Either the grantee or any member of the public who may be dissatisfied with the decision of the City Administrator may appeal the matter to the Council for hearing and detenmination. The Council may accept, reject or modify the decision of the City Administrator and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this Chapter. Sec. 24A-53. Compliance with Council Oders, ete. Every grantee shall obey ~nd comply with every order, direction, rule, resolution or ordinance made or prescribed by the Council. Sec. 24A-54. Notices. Etc. All notices required by the provisions of this Chapter, or of any franchise, to be given by City, or by its Councilor any officer, employee or agent of the City, to the grantee or any of his assigns or successors, and all other notices which City may give pursuant to this Chapter or any franchise, may be personally served, or may be given by ordinary United States mail, postage prepaid, addressed to grantee at his office in Gilroy, the address of which shall be filed by grantee with the City Clerk, or at the address given in the franchise. All notices required by the provisions of this Chapter, or of any franchise, to be given by grantee to the City, and all other notices which grantee may give to City pursuant to this Chapter or of any franchise granted thereunder, shall be personally delivered to the City Clerk in his office at the City Hall of City, - 15 - or may be given by ordinary United States mail, postage prepaid, addressed to City, care of the City Clerk, City Hall, No. 10 So. Rosanna Street, Gilroy, California. All documents and papers required to be filed with City shalt be filed with the City Clerk in City's City Hall. Article 6. CATV Rates and Service Sec. 24~55. Establishment of Service - Time. Grantee shall proceed, within a reasonable time from the effective date of the ordinance granting the frenchise, to obtain all necessary permits, contracts and authorizations which are required in the conduct of its business, including public utility joint use agree- ments and any microwave carrier license, or other licenses granted or required by duly constituted regulatory agencies having jurisdiction over such facilities. Further, grantee shall commence the work of construction of facilities required to be Installed to comply with the franchise within a reasonable time subsequent to the obtaining of all necessary permits and authorizations. The completion of the installation shall be pursued with reasonable diligence so that service to all subscribers within each service area for which grantee has a franchise shall be provided or be available within such reasonable time as is set forth in said franchise. If the necessary penmits, contracts, agreements and licenses have not been secured within eighteen (18) months from the effective date of the ordinance, the City shall have the right to terminate the franchise, after holding a public hearing and determining that the public interest requires that the franchise be terminated. If the Council determines, at said hearing, that the public interest would not be served by the cancellation of said franchise, and that with reasonable diligence on the part of grantee, such permits, contracts, agreements and licenses can be obtained within a further period speCified by the Council, said franchise may be extended for such additional period. Failure on the part of grantee to commence end diligently pursue each of the foregoing requirements and to complete each of the matters set forth herein, shall be grounds for tenmination of such franchise. Delays beyond the control of grantee shall be taken into consideration by the Council. but shall not prevent a cancellation or termination If the Council detenmines that the public interest so requires. After the grantee shall have established service pursuant to this Chapter, such service shall not be suspended or abandoned unless such suspension or aban- donment be authorized by resolution of the City Council. A finding by the City _ 1~ _ Council of an unauthorized suspension or abandonment for a period of more than ten (10) days shall constitute cause for revocation of the franchise. Sec. 24A-56. Rates and Service Subject to Council Regulation. The City Council shall have the power to regulate and fix just and reasonable rates, services and all manner of service charges, and to that end may hold hearings from time to time for the purpose of determining and fixing such rates, services, and service charges. When so determined and fixed by the City Council, any charge, fee, rate or toll charged by any grantee in excess of the amount fixed by the City Council shall be unlawful. The grantee shall be subject to all authority now or hereafter possessed by the City relating to the fixing of reasonable and just rates, service fees and services of all kinds for the Services rendered by grantee. Sec. 24A-57. Rules of Grantee to be Just and Reasonable. All rules made by any grantee affecting or pertaining to its charges or services to the public shall be just and reasonable. No grantee shall charge different rates to subscribers within the same class of service, nor shall there be any difference in the services, facilities or in any other respect between subscribers within the same class. Sec. 24A-58. Ho Preferential Treatment. No grantee shall make or grant any preference to any corporation or person as to rates, charges, services, facil- ities, rebates, or in any other respect, or subject any corporation, or person to any prejudice or disadvantage. Sec. 2L~A-59. rlo Charge to Exceed that Fixed by City. tlo grantee shall charge any amount greater than that set forth in the ordinance granting the fran- chise or incorporated therein, or as determined and fixed by the City from time to time. Sec. 24A-60. Schedules of Rates and Charges. and Rules. to be Filed with City Clerk. The grantee shall, at all times, keep on file with the City Clerk, as a public record, a complete and current schedule of its rates, services and all manner of service charges, as well as a current set of Its rules and regula- tions relating to its operations and services. Sec. 24A-61. Rates, Charges, Rules Ineffective Until Approved by Council. No schedule of rates, charges, services or method of operation relating to the public shall be effective unless and until they have been filed with the City and approved by the City Council. - 17 - Sec. 24A.62. Office in City for Maintenance Service. The grantee shall maintain an office In the City so that CATV maintenance shall be promptly available to subscribers upon telephone request. Said office shall be open and full main- tenance service shall be available during all hours that grantee is furnishing or supplying signals to subscribers. Sec. 24A-63. Nlnlmum Signals Required. Grantee shall furnish or supply to subscribers through the CATV system no less than the following television and radio signals: Channel 11 from the San Jose area. Channels 2, 4. 5, 7 and 9 from the San Francisco area. Channel 8 from the Salinas area. Ten FM stations. Grantee shall transmit both color and black and white picture signals and sound signals from the foregoing television and radio stations during all hours that said stations are on the air. Sec. 24A-64. No Sale or Repair Busin esse The grantee shall not engage in the business of selling television or other receivers which make use of the signals transmitted through the CATV system, nor shall the grantee engage in the repair of such receivers or sale of parts for the same. Sec. 24A-65. line Extension Charges. Any line extension charge made by grantee shall first be submitted to the City Council and approval obtained, provided, however, that such charges shall not be approved or allowed if they are to be made in any areas where the number of occupied houses is greater than fifty (50) per mile of line, nor shall any such charge be approved unless the grantee files with the City. at the same time, a rate schedule showing that such line extension charges will be recieved by grantee and credited to the account of the subscriber making the same and that an allowance of not less than fifty (5~~) per cent of the regular monthly charge shall be made for the benefit of such sub- scriber against said line extension charge until the whole thereof has been repaid by grantee. No line extension charge shall be made which is greater than the actual cost to grantee of the time and materials involved. Sec. 24A-66. limitation on Charges for Repairs. Etc. No charge shall be made to any subscriber by reason of the maintenance, repair, removal or replacement of any property of grantee, unless the same was caused by the deliberate act of said subscriber. · 18-.,. Sec. 24A-67. limitation of Denial of Service. No person, firm or corpor- ation in the service area of grantee shell be refused service unless the providing of such service would not, in the opinion of the City Council, be In the public interest; provided, however, that grantee shall not be required to provide service to any subscriber who does not pay the regular connection fee or the regular monthly service charge. Sec. 24A-68. Authorized Charges. The grantee may make a charge to sub- scribers for connection to its CATV system, and a single fixed monthly charge for its service to subscribers. Such charges proposed to be made shall be set forth in the application filed with the City Council and may not thereafter be increased, except with the prior approval of the Council. Additional charges may be made for additional service connections to grantee's system, and for monthly service to additional receivers belonging to subscriber, provided the same were set out in the application of grantee prior to the time the franchise was awarded by the City. No charges shall be made by grantee other than those specifically authorized In this Chapter. Sec. 24A-69. Council Investigations; Rates, Etc. The Council may, upon hearing, Lnvestigate a single rate, classification, rule contract or practice, or any number thereof, or the entire schedule of rates, classifications, rules, contracts and practices on any thereof, of any grantee, and may establish new rates, classifications, rules, contracts or prectices or schedule or schedules in lieu thereof. Rates charged by the grantee or established by the Council for service hereunder shall be fair and reasonable, and designed to meet all necessary costs of said service including a fair rate of return on the net valuation of the grantee's properties devoted thereto under efficient and economical management. Article 7. Annual Franchise Fee Sec. 24A-70. Amount of Fee. Any grantee granted a franchise pursuant to the provisions of this Chapter, shall pay to the City, during the life of such franchise, and at the times herein specified, a sum of money equal to three (3%) percent to the total gross receipts collected or received by the grantee or in any manner gained or derived by the grantee in any calendar year orportion thereof from the properties, operations and business for which he has been granted fran- chise under theprovisions of this Chapter, provided, that no such payment need be made for the one hundred eighty (180) days Immediately following the effective date of the ordinance granting the franchise. - 19 - Sec. 21~A-71. Hhere Payable. The franchise fee shall be paid to the City by delivery of the same to the City's 01 rector of Finance. Sec. 24A-72. When Payable. Franchise fee payments shall be made quarterly. Within thirty (30) days from and after the end of each quarter of each calendar year, grantee shall pay to City the franchise fee for the immediately preceding quarter year. Sec. 24A-73. Statements. Each payment shall be accompanied by a statement, In duplicate, verified by grantee, or by a general officer or other duly authorized representative of the grantee, showing in such form and detail as the City's Dir- ector of Finance may require from time to time, the facts material to a determin- ation of the amount due. Sec. 24A-74. Books and Records. The grantee shall at all times maintain accurate and complete accounts of all revenue and income arising out its operations under said franchise. Grantee's books, accounts, and record shalt at all times be open to inspection and examination by authorized officers, agents and employees of theCity, and shall be kept in such fonm as to enable such authorized officers, agents and employees to ascertain the amounts of money due the City and to deter- mine such other facts as may be necessary to determine whether or not grantee is complying with the terms of said franchise. The right is reserved to the City of audit and recomputation of any and all amounts paid by grantee and no accept- ance of any payment shall be construed as a release or as an accord and satisfac- tion of any claim the City may have for further or additonal sums payable under such franchise or for theperformanoe of any other obligation thereunder. In the event of any holding over after expiration or other termination of said fran- chise, without the consent of the City, the grantee shall pay to the City a reason- able compensation and damages, of not less than One Hundred (IO~k) percent of Its gross perfits during said period. Sec. 24A-75. In Lieu of Other License Fees. The payment made to the City by the grantee pursuant to this Chapter for any calendar year shall be In lieu of any license fee or business license tax prescribed by the City for the same period. but only to the extent of such payment. Attlcle 8. Miscellaneous See. 24A-76. Unauthorized Connection with CATV Signals. It shall be un- lawfull for any person, firm or corporation to make any unauthorized connection in physical contact with any part of a franchise CATV system within this City for - 20 - the purpose of taking or receiving television signals, radio signals, pictures, pro91' ams, or sound. Sec. 24A-77. Unauthorized Taking of CATV Signals. It shall be unlawful for any person, finm or corporation to make any unauthorized connection In physical contact with any part of a franchised CATV system within this City for the, purpose of enabling himself or others to receive any television signal, radio signal, pic- ture, program or sound, wi thout payment to the owner of said system. See. 24A-78. Unauthorized Tam~ering with CATV System. It shall be unlaw- ful for any person, without the consent of the owner, to wilfully tamper with, remove or Injure any cables. wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. Sec. 24A-79. Severability of Provisions. If any section, sub-section, sentence, clause or phrase or portion of this Chapter is for any reason held ille- gal, invalid or unconstitutional by the decision of any court of competent juris- diction, such decision shall not affect the validity of the remaining portions of this Chapter. The Council of this City hereby declares that it would have adopted this Chapter and each section, sub-section, sentence, elause, phrase or portion thereof, irrespective of the fact that anyone or more sections, sub-sections, sentences, clauses, phrases or portions be declared invalid, or unconstitutional. This Ordinance was introduced at a regular session of the City Council and ordered published by title and summary at a regular meeting of saId Council held on the 18th day of October, 1965, and finally adopted at a regular meeting of said Council on the 1st day of November, 1965, by the following vote: AYES COUNCIL MEMBERS: Allemand,Duffin,Eckard,G00drich,Quartiroli ,Went- worth, and Petersen. NOES COUNCIL NEMBERS: None ABSENT COUNCIL MEMBERS: None Approved: ...-;:;:-; /_ C---~NN;5~. P~{~RSE~~ Mayor r2' Attest:; 4u'JM'#.J t. "'"" t.d ~ SUSAN~E E. PAYNE City Clerk - 21 - , , I, SUSANNE E. PAYNE , City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 759 Is an original ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 1st day of November, 19 65 , at wh i ch meet i ng a quorum was present. I further certify that the said ordinance has been pub- lished in accordance with the charter of the City of Gilroy. IN WITNESS WHEREOF, I have hereunto set my hand and af- fixed the official seal of the City of Gilroy, this 2nd day of November cO