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HomeMy WebLinkAboutCC RESO 8593 Authorizing the Mayor to Execute An Agreement - License Agreement with Area Television Antenna, Inc.RESOLUTION NO. 8593 RESOLUTION AUTHORIZING. MAYOR TO EXECUTE AN AGREEMENT BE IT RESOLVED by the City Council of the City of Natthnal City. .that the Mayor is hereby authorized and directed to execute, and the City Clerk is authorized and directed to attest that certain License Agreement between the City of National City and Area Television Antenna, Inc. ATTEST: PASSED AND ADOPTED thisf day of Ez CITY CLERK 1964. LICENSE. AGREEMENT. .The parties to this agreement are the City. of: National City, hereinafter referred. to as "City" and Area Tele vision Antenna, Inc., hereinafter referred to as "Grantee". Section 1: DEFINITIONS. .For the purpose ofthis license, the following terms, phrases, words, and their derivations shall have the meaning given herein. When'not inconsistentwith the context, words'used in the present tense include the future,.words in the .plural.number include the singular number, andwords in'the singular number.include the plural -number. Provisions -of this license shall be.con- strued in accordance with thelaws of the State of California. (a) "City": The City above named, a municipal.cor- poration of the State of California, in its present incorpora- ted form, or in any later reorganized,consolidated, enlarged or re -incorporated form. (b) "Council": The present governing body of the City or any future board constituting the legislative body.. of the City. (c) "License Property": All property owned stalled or used under authority of this license. (d) or which this ful successor with the City hereof. ."Grantee":. The person or corporation to, whom license is granted ..by the Council, and. the law or assignee thereof, and who or which has filed an acceptance referred to in Sections 3.and 13 (e) "Street":, The surface of, and the space above and, below anypublicstreet, road, highway, freeway, lane,c alley, court, sidewalk, parkway, or_drive, now or hereafter existing as such within the City. (f) "Community Antenna Television System" herein- after referred to as "CATV": Coaxial cables, wave guides;. or other conductors and equipment for providing television,..radio or other service by cable or through its facilities `as herein contemplated. (g) ."Subscribers":-. Any person or entity receiving for any purpose the. CATV service of the licensee herein. (h) "Total Gross Receipts".:: Any and all compensa- tion and other consideration in any form paid by the subscriber- to the grantee arising from the sale of said CATV service to customers within the corporate limits of the city; provided, however, that -only the regular periodical service charges,not including, any state or federal tax levied upon said service, shall be considered in computing said sum and that original installation charges, re -connection charges, and -charges for inspection, repair, or modification of installation shall not be considered in computing said sum. • XERO. COPY ria'R rI COPY • Section 2: FRANCHISE GRANT. The franchise'hereby granted by the .City authorizes`Area.Television'Antenna, Inc., ..grantee,.subject to the.provisions,herein.'containedto engage in the:business of..operating and. providing -.a CATV System in the.City, and for that purpose to.erect.,install, construct, repair,replace, reconstruct, maintain and retain in streets such poles, wires, cable, conductors, ducts, conduit;. vaults, manholes, amplifiers, appliances, attachments, and other prop- erty as may be necessary and appurtenant to the CATV.System; and, in -addition, so to use, operate and provide similar properties rented or leased from other persons, firms, or corporations, for such purpose. Section-3: DURATION OF GRANT: The .license'granted hereunder shall not become effective until the happening of following events: .'(a) The written acceptance hereof by the grantee accepting all of the terms and conditions of this license and agreeing to be bound thereby, delivered to the City in a form approved by the City Attorney. (b) The filing of surety bond or bonds with the City in a form satisfactoryto the City Attorney, if such bond shall be required under the terms hereof. (c) The Grantee filing with.the.City a'contract between. it and the. PacificTelephone.and Telegraph.Company, and/or the San, Diego Gas and Electric .Company, .or. such other or additional 'uti.lity.companies as may be necessary, wherein grantee is granted the right to use the facilities. of such utility or utilities in its operations, said contract to be ap- proved as to form by the City Attorney. The above items shall be filed with the City within ninety (90) days of the date of this license, at the option of the City, may be forfeited. This license shall expire twenty.(20) years after. the effective date hereof, unless sooner terminated by the City Council in the event the Council shall have found, after notice and hearing,, that: (a) the Grantee has failed to comply with any material provision hereof; or (b) any provision hereof has becomeinvalid or unenforceable, and the Council finds that such provision constitutes a consideration material to the grant of this franchise; provided, however, that the Grantee.shall be given at least thirty (30) days' notice of any termination.pro- ceedings. Section 4: FRANCHISE PAYMENTS.' The Grantee shall. pay to the City, during the life of. this...license,.and..at the times hereinafter specified, .a sum equal... to• two. percent.(2%) of the :_gross..annual.receipts. of, the. Grantee. as.hereinbefore„defined and :such.. paymentby the. Grantee to the Cityshall be in lieu..of..-any occupation. tax. The Grantee shall file with the City within ninety (90) days after the expiration of any calendar year during: which this license is in force, a verified statement showing in appro-• priate detail the total gross receipts,'as,defined herein,. of Grantee, its successors or assigns, during .the preceding calendar year. It shall be the duty of Grantee to pay to the City, within XERO COPY9' co, XERO1. COPYL XERO A COP Y .-fifteen (15) days after the time for filing such statements, the specifiedsum for the calendar..year covered by such state- ments,..:In' .any year, , or portion thereof during which payments under this:section.amount to less than One Hundred.Dollars ($100.00)-.Grantee ,agrees to pay the City the• minimum amount of One. Hundred Dollars ($100.00) The -City shall have the right of reasonable.inspec •tion of. the Grantee's records showing. its gross receipts. Section 5: LIMITATIONS OF GRANT. (a) No privilege or exemption is. granted or con ferred by this license except those specifically prescribed herein. (b) Any privilege claimed under this license by the Grantee, in any street shall besubordinate_.to.any.prior lawful occupancy:of:the streets, or other. public property. (c) This license is. a privilege to be held in per- sonal trust by the original Grantee.- I.t cannot it any event be transferred in part, and.it-is..not to be sold,. transferred, leased, assigned,, or disposed of as a.whole, either by forced _sale,.merger, consolidation, or otherwise, without.prior con- sent of the City expressed by Resolution,' -and then only.:under such conditions as may be therein prescribed; provided,. however, that no such c.onsent.shall:be required for any.transfer.,in.trust, mortgage, or.other.hypothecation-, as a whole, to secure an in debtedness..-- The said consent of -the -City may not be;arbitrar- ily.refused, provided, however.,..the.proposed assignee: must show financial responsibility and. must agreeto comply. with. the pro-. visions..of this agreement. (d) Time is. of the essence of this license. The Grantee shall not:be relieved:of.its obligation to. comply promptlywith any of its provisions by any failure of the City to enforce prompt compliance. (e) Any right or power in, or duty impressed upon, any officer, employee, department, or board of the City, is subject• to transfer -by the City ;to anyother officer, employee, depart- ment or Board of the City. (f) TheGrantee shall haveno recoursewhatsoever against the City. for any loss,. cost, expense, or damage, arising out of any provision or requirement of this license or its'en- forcement. (g) Grantee is subject to•all requirements of the City ordinances, rules,regulaticns, and specifications. of -the City, heretofore or hereafter enacted` or established,.including` but.not limited to, those concerning. street work, street.ex .cavations, use, removaland relocation:of property within .a street, and::other street work.. . (h) This licensedoes not.relieve.the Grantee of any obligation involved in obtaining pole space from any department of the City,the utility companies or from others maintaining poles in streets. Section 6: RIGHTS RESERVED TO CITY. (a) There is 'hereby reserved to the City every right and power which is required to be herein reserved or provided by XERO (' . COPY XERO) COPY any ordinance of the City, and the Grantee, by its acceptance of this license, 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, heretofore or hereafter enacted or estab- lished. (b) Neither the, granting of this license nor any of the provisions contained herein shall be construed to:prevent the City from granting any identical,..or similar, license to any person or ,corporation other than the Grantee, except, in areas where an area map has been submitted by Area Television Antenna, ..Inc., -and, approved by the City Council of the City of National City. Section 7.: TIME.OF PERFORMANCE. Installation of a CATV System shall be commenced within one hundred and eighty (180) days after the effective date of this license, and extensions and service pursued with due diligence thereafter. Failure to . so commence and diligently pursue to completion shall be grounds for termination of this license. Section 8: LOCATION OF LICENSE PROPERTIES. License property shall be constructed or installed in streets only at such locations and in such manner as shall be approved by the Superintendent of Streets, acting .in the exercise of reasonable. discretion. Construction or installation of license property in all other public places shall be subject.toapproval'of.and regulation by the City Council. Section 9: REMOVAL OR ABANDONMENT OF LICENSE PROPERTY.. (a) In the event that the use of any license property is discontinued for any reason for a continuous period of twelve (12) months or that license property has been installed in any street without complying with the.requirements of this license, or the license has been terminated, cancelled or has expired, the Grantec shall promptly remove from the. street all such prop- erty other than any which the. Superintendent of.Streets may.per- mit to be abandoned in place. In the event of any such removal, the Grantee shall promptly restore the street or other area from which such property has been removed to a condition satisfactory to the Superintendent of Streets. (b) License property to be abandoned in place -shall be abandoned insuch manner as the Superintendent of Streets_ shall prescribe.. Upon permanent -abandonment of.any license property inplace, the Grantee'shall submittto the Superintend- ent of Streets an instrument,, satisfactory to the City Attorney, transferring:to the -City the ownership of such property. - Section 10: CHANGES REQUIRED BY PUBLIC IMPROVEMENTS. The Grantee shall-, at -its expense,.protect,.;support, temporarily.,- . disconnect,. relocate in the same.,.street,-alley, or public.place, or'remove:from any.street, alley or public place,:any.,license property- when.required.by.the.Superintendent of Streets by..reason. oftraffic conditions, public safety, street.vacation,-freeway and street construction, ,change:orestablishment of street'grade, installation of sewers,drains, water pipes, power lines, signal lines, and tracks of anyother type of structures or improvements by governmental agencies when acting in governmental or pro-, prietary 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 license property in place, as provided -in Section 9. Section 11:. FAILURETO PERFORM STREET WORK. Upon failureof the Grantee.to:complete. any work:required bylaw or by the.provisions:of.this'license to be done in anystreet, within the;time prescribed and to,the satisfaction of the Super- intendent of Streets, the:Superintendent of Streets'may cause such work to.be.done and the Grantee. shall.pay.to the City the cost thereof in the itemizedamounts reported by the Superintend- ent of'Streets to the Grantee, within thirty (30) days after re- ceipt of such itemized report. Section 12: INDEMNIFICATION TO CITY. (a) Grantee agrees.that at all times during the ex- istence of this license it will maintain in force, furnish and file with the.City,-at'its own expense, .a general comrehensive liability insurancepolicy; in. protection of City,its boards, commissions, officers, agents and.employees, in a company auth- orized to do business in the State of California, and in form satisfactory to the City Attorney, protecting the City and said persons against liability for loss or damages for personal,in jury, death and property damage occasioned by the.operations of Grantee under this license, with minimum liabilitylimits, of $100,000 for personal injury or death of any one person, and $300,000 for personal injury or death of two or more persons in any one occurrence, and $50,000 for damage to property resulting from any one occurrence. (b) The policies mentioned_ in the foregoing paragraph shall.. containa provision that a,written.notice of any.cancel- lation or reduction -in coverage of said policy shall.be delivered to the City ten (10) days in ,advance of the.effective date there- of. If such insurance .i's provided in -either case by a policy .which also covers Grantee. or any other entity or person than those above named, then such.policy shall contain. the standard cross liability endorsement• Section 13: INSPECTION OF PROPERTY AND RECORDS. At all reasonable times, the Grantee shall.permit.any duly author- ized representative of the .City to examine all licenseproperty, together 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 treat of_the..operations,..affairs, transactions .or propertyof.the. Grantee with respect thereto. If .any. ,of. s.uch maps or.records are not kept. in .the City, or upon reasonable requestmade available in the City,: and if .the Council shall determine_that..an.examination..thereof isnecessary or appropriate, then all. travel.and.maintenance-expense necessar- ily incurred. in .making. such examination shall be. paid by the Grantee.. The Grantee shall prepare and furnish to the Superin- tendent of Streets at the times and,in.the form prescribed by the Superintendent of Streets, such reports, with respect to its operations, affairs,.transactions or property, as maybe reason- ably necessary or appropriate to the performance .of any.Of the duties of the City or any of its officers and employees in con- nection with this license. 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 System equipment installed or in use by Grantee in streets, alleys and public places of the City. The Grantee shall file with the Superintend= ent of Streets on or before the last day of March,of.each.year a current map or plat of maps drawn to scale,.to.be designated by the Superintendent of Streets, showing all CATV System equipment installed in streets, alleys and public places of the City during the previous year. XERO %COPY MISCELLAN OUS PROVISIONS (a) 'All notices herein registered mail addressed to TO THE CITY: City, Clerk 1243 National Avenue National City, California TO THE GRANTEE: Area Television Antenna, 409 W. Douglas Avenue El Cajon, California provided for shall be -pre - the parties as follows: With copy to: .'William W. Carstens -City Attorney 1243 National.Avenue - National City, California Inc. All matters herein provided to be be filed with the.City,Clerk. (b) The said CATV System shall: be installed and main- tained in accordance with the best accepted standards .of the :industry to the effect that the subscriber shall receive the best signal to his T.V. set. The provisions'df'this.subsection are a "material_ provision hereof" as these words are used in Section 3 (c) hereof. filed with the City (c)_ The Grantee of thislicense shall pay,.to the City a sum of money sufficient to reimburse it for -all, expenses in- curred by it in connection with the granting of this license; such payment to be made within thirty "(3) days after the,City shall furnish such Grantee with a. written statement of such ex- penses, (.d). The Grantee shall'not engage in the business of 'selling television or.other receivers which make use of signals transmitted by its system, or shall Grantee engage in 'the repair. of such receivers or the sale of parts for the same. , 1964. EXECUTED this _1ay Of ATTE City Clerk of the City of National City XERO COPY CITY OF NATIONAL CITY,'a Municipal Corporation; AREA TELEV,SION ANTENNA, INC. President-- XERO) COPY. ._..