HomeMy WebLinkAbout0778ORDINANCE NO. 778 (1978 Series)
AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO PROVIDING
FOR THE GRANTING OF FRANCHISES FOR COMMUNITY ANTENNA
TELEVISION SYSTEMS IN THE CITY; PROVIDING TERMS AND
CONDITIONS FOR THE OPERATION OF SUCH COMMUNITY ANTENNA
TELEVISION SYSTEMS AND FEES THEREFOR; AND REPEALING
ORDINANCES NO. 244 AND 288.
BE IT ORDAINED by the Council of the City of San Luis Obispo as follows:
SECTION 1. A nonexclusive franchise to construct, operate and maintain
a community antenna television system in the City of San Luis Obispo may be
granted by the City Council to any person, firm or corporation offering to
furnish and provide such system under and pursuant to the terms and provisions
of this ordinance.
SECTION 2. DEFINITIONS: For the purpose of this ordinance, the
following terms, phrases, words and their derivations shall have the meaning
given herein:
(a) "CITY ": The City above named, a municipal corporation of the
State of California, in its present incorporated form or in any later
recognized, consolidated, enlarged or reincorporated form.
(b) "COUNCIL ": The present governing body of the City or any
future board constituting the legislative body of the City.
(c) "COMMUNITY ANTENNA TELEVISION SYSTEM ": Hereinafter referred
to as "CATV ", coaxial cables, wave guides, or other conductors and
equipment for providing television service by cable or through its
facilities as herein contemplated. CATV shall not mean or include
the transmission of any special program or event in the manner com-
monly known and referred to as "pay television" transmission.
(d) "GRANTEE ": The persons or corporations to whom or which a
franchise under this ordinance is granted by the City Council and
the lawful successor or assigns of said persons or corporations.
(e) "GROSS ANNUAL RECEIPTS ": Any and all compensation and other
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Ordinance No. 778 . (1978 Series)
consideration in any form paid by the subscriber or sponsor to the
Grantee arising from the sale of said CATV services to customers
within the corporate limits of the city.
Gross Annual Receipts shall not include any taxes on the services
furnished by the Grantee imposed directly on any user or subscriber
by.any city, state or other government unit and collected by the
Grantee for such governmental unit.
(f) "LOCAL STATIONS ": A television broadcasting station whose
principal city coverage (77 dbu) includes the City of San Luis Obispo.
The principal city coverage shall be determined by measurements made
in accordance with Section 73.686 (S.73.686) of the Rules and Regulations
(R.R.) of the Federal Communications Commission (F.C.C.).
(g) "STREET ": The surface of, and the space above and below,
any public street, road, highway, freeway, lane, alley, court, side-
walk, parkway, or drive, now or hereafter existing as such within the
city.
(h) "SUBSCRIBERS ": Any person or entity receiving for any purpose
the CATV service of the Grantee herein.
SECTION 3. USES PERMITTED BY GRANTEE: Any nonexclusive franchise
granted pursuant to the provisions of this ordinance shall authorize and permit
the Grantee to engage in the business of operating and providing a CATV system
in the City of San Luis Obispo and for that purpose to erect, install, construct,
repair, replace, reconstruct, maintain and retain in, on, over, under, upon,
across and along any public street or highway, such poles, wires, cables,con-
ductors, ducts, conduits,vaults, manholes, amplifiers, appliances, attachments,
and other property as may be necessary and appurtenant to the CATV system; and
in addition, so,to use, operate and provide similar facilities or properties
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Ordinance No. 778 (1978 Series)
rented or leased from a public utility franchised or permitted to do business
in the City of San Luis Obispo.
The Grantee may make a charge to subscribers for connection to its
CATV system and a fixed monthly charge as filed and approved as herein pro-
vided, for transmission to them only of television programs received free by
the public generally and /or closed circuit educational TV.
SECTION 4. DURATION OF FRANCHISE: No franchise, granted by the City
Council under this ordinance, shall be for a term longer than fifteen (15)
years following the date of acceptance of such franchise by the Grantee or
the renewal thereof. Any such franchise may be terminated prior to its date
of expiration by the City Council in the event that said council shall have
found, after notice and public hearing, that (a) Grantee has failed to comply
with any provision of this ordinance, 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 has become invalid or unenforceable,
and the council further finds that such provision constitutes a consideration
material to the grant of said franchise.; provided, however, that the Grantee
shall be given at least thirty (30) days notice of any proposed termination
proceedings.
SECTION S. FRANCHISE PAYMENT: Any Grantee granted a franchise under
this ordinance shall pay to the City, during the life of such franchise, and
at the times hereinafter specified, a sum equal to a percentage of the monthly
total gross receipts of the Grantee based upon proposals to be received by the
council, and such payment by the Grantee to the City shall be in lieu of any
occupation tax, license tax or similar levy, and shall be paid monthly within
ten (10) days after the end of each month. If the monthly payment based on
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the percentage of the monthly total gross receipts of the Grantee amounts to
less than $100.00 per month, then Grantee shall pay the City the minimum amount
of $100.00 per month.
The Grantee shall file with the City, within thirty (30) days after
the expiration of any calendar year during which such franchise is in force,
a financial statement prepared by a certified public accountant showing in
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 fifteen (15) days after the time for filing
such statements, any unpaid balance for the calendar year covered by such
statements.
The City shall have the right of inspection of all of the Grantee's
records pertaining to Grantee's operations within the City of San Luis Obispo.
SECTION 6. LIMITATIONS OF FRANCHISE:
(a) Franchise granted under this ordinance shall be nonexclusive.
(b) No privilege or exemption shall be granted or conferred by
any franchise granted under this ordinance except those specifically prescribed
herein.
(c) Any privilege claimed under such franchise by the Grantee in
any street, or other public property, shall be subordinate to any prior lawful
occupancy of the streets, or other public property.
(d) Any such franchise shall be 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, in whole or in part,, either by forced or
involuntary sale, or by voluntary sale, merger, consolidation or otherwise,
without prior consent of the City Council of the City expressed by resolution,
and then only under such conditions as may be therein prescribed. The said
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Ordinance No. 778 _ (1978 Series)
consent of the City may not be arbitrarily refused; provided, however, the
proposed assignee must show financial responsibility and must agree to comply
with all provisions of this ordinance; and provided, further, that no such
consent shall be required for a transfer in trust mortgage or other hypothe-
cation as a whole, to secure an indebtedness.
(e) The Grantee shall have no recourse whatsoever against the City
for any loss, cost, expense, or damage, arising out of any provisions or
requirements of this ordinance or its enforcement.
(f) The Grantee is subject to all requirements of the City
ordinances, rules, regulations and specifications of the City heretofore or
hereafter enacted or established, including, but not limited to, those con-
cerning street work, street excavations, use, removal and relocation of
property within a street, and other street work.
SECTION 7. RIGHTS RESERVED TO THE CITY: There is hereby reserved to
the City every right and power which is required to be herein reserved or
provided by any ordinance of the City, and the Grantee, by its acceptance
of any franchise, agrees to be bound thereby and to comply with any action or
requirements of the City in its exercise of such right or power, heretofore
or hereafter enacted or established. However, every proposal shall include
complete CATV service in the entire area within the City limits.
SECTION 8. PERMITS AND AUTHORIZATIONS: The Grantee shall proceed
with due diligence to obtain or maintain all necessary permits and authoriza-
tions which are required in the conduct of its business, including utility
joint use attachment agreements, and microwave carrier licenses to be granted
by duly constituted regulatory agencies having jurisdiction over the operation
of CATV systems, or their associated microwave transmission facilities. Further,
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Ordinance No. 778 . (1978 Series)
the Grantee shall commence the installation within ninety (90) days subsequent
to the obtaining of all the necessary permits and authorizations, and shall
proceed to render service to subscribers within sixty (60).days following
the commencement of installation of the system. The completion of the installa-
tion shall be pursued with reasonable diligence thereafter, so that service to
all areas designated on the map accompanying the application for franchise,
as provided in Section 19 hereof, shall be provided within twelve (12) months
from the date that service was first rendered, provided that the council may,
upon request of the applicant, grant an extension of time if the council
determines such request is justified. Failure to do any of the foregoing shall
be grounds for termination of franchise.
SECTION 9. LOCATION OF GRANTEE'S PROPERTIES:
(a) Any poles, wires, cable lines, conduits or other properties
of the Grantee to be constructed or installed in streets, shall be so con-
structed or installed only at such locations and in such manner as shall be
approved by the Community Development Director of the City acting in the
exercise of his reasonable discretion.
(b) The Grantee shall not install or erect any facilities or
apparatus on public property or rights -of -way within the City (except those
installed or erected upon public utility facilities now existing), without
written approval of the Community Development Director of the City.
(c) In those areas and portions of the City where either the
transmission.and distribution facilities of the public utility providing tele-
phone service, or those of the utility providing electric service, are under-
ground or hereafter may be placed underground, then the Grantee shall likewise
construct, operate and maintain all of its transmission and distribution
facilities underground. Amplifiers in Grantee's transmission and distribution
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Ordinance No. 778 (1978 Series)
lines may be in concrete boxes or vaults upon the surface of the ground.
SECTION 10. REMOVAL OR ABANDONMENT OF PROPERTY OF GRANTEE:
(a) In the event that the use of any part of the CATV system is
discontinued for any reason for a continuous period of twelve (12) months, or
in the event such system or property has been installed in any street or public
place without complying with the requirements of its franchise, or the franchise
has been termined, cancelled or has expired, the Grantee shall promptly, upon
being given notice, remove from the streets or public places all such property
and poles or such system other than any which the Community Development Director
may permit to be abandoned in such 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 Community Develop-
ment Director.
SECTION 11. CHANGE REQUIRED BY PUBLIC IMPROVEMENT: The Grantee shall,
at its expense, protect, support, temporarily disconnect, relocate in the same
street, alley or public place, or remove from the street, alley or public place,
any property of the Grantee when required by the Community Development Director
by reason of traffic conditions, public safety, street vacation, freeway and
street construction, 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 governmental agencies when acting in a
governmental or proprietary capacity, or any other structures or public
improvements; provided, however, the Grantee shall in all such cases have the
privileges and be subject to the obligations to abandon any property of the
Grantee in place, as provided in Section 10 hereof.
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Ordinance No. 778 (1978 Series)
SECTION 12. FAILURE TO PERFORM STREET WORK: Upon failure of the Grantee
to complete any work required by law or by the provisions of this ordinance to
be done in any street, within the time prescribed, and to the satisfaction of
the Director of Public Services, the Director may cause such work to be done
and the Grantee shall pay to the City the cost thereof in the itemized amounts
reported by the Director of Public Services to the Grantee, within thirty (30)
days after receipt of such itemized report.
SECTION 13. FAITHFUL PERFORMANCE BOND:
(a) The Grantee shall, concurrently with the filing of and acceptance
of award of any franchise granted under this ordinance, file with the City Clerk,
and yearly thereafter maintain in full force and effect for the term of such
franchise, at Grantee's sole expense, a corporate surety bond in a company
approved by, and in a form to be approved by, the City Attorney, in the amount
of $25,000.00, renewable annually, and conditioned upon the faithful performance
of Grantee, and upon the further condition that in the event Grantee shall fail
to comply with any one or more of the provisions of this ordinance, or of any
franchise issued to the Grantee hereunder, there shall be recoverable jointly
and severally from the principal and surety of such bond any damages or loss
suffered by the City as a result thereof, including the full amount of any com-
pensation, indemnification, or cost of removal or abandonment of any property
of the Grantee as prescribed hereby which may be in default, plus a reasonable
allowance for attorney's fees and costs, up to the full amount of the bond;
said condition to be a continuing obligation for the duration of such franchise
and thereafter until the Grantee has liquidated all of its obligations with
the City that may have arisen from the acceptance of said franchise by the
Grantee or from its exercise of any privilege therein granted. The bond
shall provide that thirty (30) days prior written notice of intention not to
renew, cancellation, or material change, be given to the City.
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Ordinance No. 778 (1978 Series)
(b) Neither the provisions of this section, any bond accepted by
the City pursuant thereto, nor any damages recovered by the City thereunder,
shall be construed to excuse faithful performance by the Grantee or limit the
liability of the Grantee under any franchise issued hereunder or for damages,
either in the full amount of the bond or otherwise.
SECTION 14. PENAL BOND:
(a) Grantee shall, concurrently with the filing of and acceptance
of award of any franchise granted under this ordinance, file with the City
Clerk, and yearly thereafter maintain in full force and effect, until the
council determines that the Grantee has provided service to all areas of the
City of San Luis Obispo in accordance with such franchise, a penal bond in
the amount of $10,000.00, in a company approved by, and in a form to be
approved by the City Attorney, payable to the City of San Luis Obispo if
the council, after public hearing and thirty (30) days notice to the Grantee
of the council's intention to hold such public hearing, determines that the
Grantee has failed in any material manner to provide service to all areas of
the city in accordance with said franchise.
(b) Upon such determination by the council as set forth in para-
graph (a) above, the full amount of said bond shall be paid to the City as a
penal amount in addition to any damages recoverable by the City.
SECTION 15. INDEMNIFICATION OF THE CITY:
(a) The Grantee shall, at all times during the existence of any
franchise issued hereunder, maintain in full force and effect, furnish to the
City, and file with the Council of the City of San Luis Obispo at Grantee's
cost and expense, a general comprehensive liability insurance policy, in
protection of the City of San Luis Obispo, its officers, boards, commissions,
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Ordinance No. 778
(1978 Series)
agents and employees, in a company approved by the City Administrative Officer
and in a form satisfactory to the City Attorney, protecting the City and all
persons against liability for loss or damage for personal injury, death, and
property damage, occasioned by the operations of Grantee under such franchise,
with minimum liability limits in the amount of One Million Dollars ($1,000,000.00).
(b) The policies mentioned in the foregoing paragraph shall name
the City of San Luis Obispo, its officers, boards, commissions, agents and
employees,. as additional insured and shall contain a provision that a written
notice of any cancellation or reduction in coverage of said policy shall be
delivered to the City thirty (30) days in advance of the effective date thereof;
if such insurance is 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.
(c) No franchise granted under this ordinance shall be effective
unless and until each of the foregoing policies of insurance as required in
this section have been delivered to the City.
SECTION 16. INSPECTION OF PROPERTY AND RECORDS: At all reasonable
times, the Grantee shall permit any duly authorized representative of the City
to examine all property of the Grantee, together with any appurtenant property
of the Grantee situated within or without the City, and to examine and tran-
scribe any and all maps and other records kept or maintained by the Grantee or
under its control which deal with the operation, affairs, transactions or
property of the Grantee with respect thereof. The Grantee shall, at all times,
make and keep in the city full and complete plans and records showing the exact
location of all CATV system equipment installed or in use in streets, alleys
and public places in the city. The Grantee shall file with the Community
Development Director, on or before the last day in March of each year, a
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Ordinance No. 778 (1978 Series)
current map or set of maps drawn to scale to be designated by the Community
Development Director, showing all CATV system equipment installed in streets,
alleys and public places of the City during the previous year.
SECTION 17. OPERATIONAL STANDARDS: The CATV system shall be installed
and maintained in accordance with the highest and best accepted standards of
the industry to the effect that subscribers shall receive the highest possible
service. In determining the satisfactory extent of such standards the following
will apply:
(a) The system shall be installed using all -band equipment capable
of passing the entire VHF and FM spectrum, and it shall have the further capa-
bility of converting UHF for distribution to subscribers on the VHF band.
(b) The system, as installed, shall be capable of passing standard
color TV signals without the introduction of noticeable effects on color fidelity
and intelligence.
(c) The system and all equipment shall be designed and rated for
24- hour - per -day continuous operation.
decibels.
(d) The system signal -to -noise ratio shall be not less than 46
(e) Hum modulation of picture signal shall be less than 5 %.
(f) The system shall use components having VSWR of 1.4 or less.
(g) Each CATV subscriber shall receive a minimum signal strength
of One Thousand (1,000) microvolts as measured at the antenna terminals of the
television set. The pick -up signal will be located at a point to insure maximum
efficiency for picking up the television signals to be distributed. The picture
should be free of ghosting, multi -path and man -made interference. Methods of
measuring above standards, where necessary, will be established by the City Council.
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Ordinance No. 778
(1978 Series)
(h) In the event the council determines that the quality of service
being rendered by the Grantee is not equal to comparable systems delivering
service in the State of California, the Grantee, upon written notice from
the council, shall, with due diligence do whatever is necessary to bring its
service up to such standards.
SECTION 18. MISCELLANEOUS PROVISIONS:
(a) All matters herein provided to be filed with the City shall
be filed with the City Clerk.
(b) If Grantee should fail to operate its system for a period of
two (2) years from the date such service begins, the subscribers who have paid
installation charges shall be entitled to a refund of the installation charges
less 1 /24th of each charge for each month elapsing from the time service was
first started to that subscriber and during wich time service was available
to him. Grantee'shall maintain in a trust fund, subject to approval of City,
an amount sufficient to pay that portion of the refund provided for in this
Section.
(c) The rate schedule for any service agreement or increase thereto
to subscribers must have written approval of the City Council
(d) The Grantee shall pay to the City a sum of money sufficient
to reimburse it for expense incurred by it in publishing legal notice and
ordinances in connection with the granting of a franchise pursuant to the
provisions of the ordinance; such payment to be made within thirty (30) days
after the City shall furnish such Grantee with a written statement of such
expense.
(e) The Grantee shall maintain an office within the city limits
of the City of San Luis Obispo so that CATV maintenance service shall be
promptly available to subscribers upon telephone request between the hours
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Ordinance No. 778 (1978 Series)
of 9:00 A.M. and 6:00 P.M. of each day that Grantee is transmitting signals
to subscribers.
(f) The Grantee shall not engage in the business of selling tele-
vision or other receivers which make use of signals transmitted by its system,
nor shall the Grantee engage in the repair of such receivers or the sale of
parts for the same.
(g) The said CATV system operated by the Grantee shall deliver
adequate television signals from at least six (6) television stations in
addition to Channel 6, Channel 3 and any channel installed in the San Luis
Obispo or Santa Maria area. The application shall set forth the television
stations to be delivered.
(1) When it occurs that there is simultaneous duplication of
the program being broadcast by a local station which is duly licensed
by the Federal Communications Commission and authorized to furnish free
television service to the area within the city limits of San Luis Obispo,
and when such programs being duplicated are identical, as to time and
program content, then for that period of time as such duplication
exists, the signals of the outlying station shall not be transmitted
to subscribers of the CATV system and only those signals broadcast by
the local station shall be used by the Grantee to provide service to
its subscribers.
(h) If Grantee provides any FM stations or stereo background
music from outside the primary service area, then the Grantee must also carry
local FM stations.
(i) The Grantee shall cooperate with the San Luis Obispo School
Board in providing educational television service when available to this area.
(j) There shall be no noticeable degradation of any picture signal
received by the CATV system.
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Ordinance No. 778 (1978 Series)
(k) The provisions of this ordinance shall apply to any franchise
agreement heretofore or hereafter awarded.
SECTION 19, APPLICATION FOR FRANCHISE:
(a) Application for a franchise hereunder shall be filed with the
City Clerk in a form approved by the City and shall contain the following infor-
mation:
(i) The name and address of applicant.
(ii) A general description of applicant's proposed CATV
operation, including map of areas to be served.
(iii) A statement or schedule in a form approved by the City
of proposed rates and charges to subscribers for installation and
services, and a copy of proposed service agreement between the Grantee
and its subscribers shall accompany the application. For unusual
circumstances, such as underground cable required, or more than 150
feet of distance from cable to connection of service to subscribers,
an additional installation charge over that normally charged for
installation as specified in the applicant's proposal may be charged,
with easements to be supplied by subscribers at no charge. For remote,
relatively inaccessible subscribers within the City, service will be
made available on the basis of cost of materials, labor and easements
if required. The applicant shall set forth the standards for determining
such remote areas.
(iv) A statement of the corporate organization of applicant,
including the names and addresses of its officers, directors and
associates and also including the names of subsidiary companies with
a listing of other areas being served by CATV or similar systems.
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Ordinance No. 778 (1978 Series)
(v) A statement setting forth all agreements and understandings,
whether written, oral or implied, existing between the applicant and any
person, firm, group or corporation with respect to the franchise and
the proposed operations. If a franchise is granted to a person, firm,
group or corporation posing as a front or representative for another
person, firm, group or corporation, and such information is not dis-
closed in the original application, such franchise shall be revoked
automatically, and the council shall consider awarding the franchise
to another qualified applicant.
(vi) Applicant shall also furnish a financial statement pre-
pared by a certified public accountant as to the company's or corpora-
tion's financial ability to complete installation and operation of the
CATV system.
(vii) A statement of proposed percentage franchise payment to
the City referred to in Section 5 of this ordinance.
(b) Upon consideration of any such application, the City Council
may grant a franchise for CATV to such applicant as may appear from said appli-
cation to be in its opinion best qualified to render proper and efficient CATV
service to television viewers and subscribers in the City of San Luis Obispo.
The council's decision in the selection will be final.
(c) Any franchise issued pursuant to this ordinance shall include
the following conditions:
"The CATV system herein franchised shall be used and
operated solely and exclusively for the purpose expressly autho-
rized by ordinance of the City of San Luis Obispo, and no other
purpose whatsoever."
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Ordinance No. 778 - (1978 Series)
The inclusion of the foregoing statement in any such franchise
shall not be deemed to limit the authority of the City Council to include any
other reasonable condition, limitation or restriction which it may deem neces-
sary to impose in connection with such franchise pursuant to the authority
conferred by this ordinance.
SECTION 20. Ordinance No. 244 (1962 Series) and Ordinance No. 288 (1964
Series) are hereby repealed.
SECTION 21. This ordinance, together with the ayes and noes, shall be
published once in full, at least three days before its final passage, in the
Telegram- Tribune, a newspaper published and circulated in said city, and the
same shall go into effect at the expiration of thirty (30) days after its
final passage.
INTRODUCED AND PASSED TO PRINT this Sth day of September , 1978,
on motion of Councilman Dunin seconded by Councilman Petterson , and
on the following roll call vote:
AYES: Councilmen Dunin, Jorgensen, Petterson, Settle, and Mayor Schwartz
NOES: None
ABSENT: None
ATTEST:
er J. H. Fitzpatrick
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!
. (
ordinance No, 778
Approved as to orm:
City Attorney
(1978 Series)
Approved as to content:
Directof of Public Services
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ORDINANCE NO. 778
FINALLY PASSED this 19th day of September 1978 ,
on motion of Councilman Jorgensen seconded by
Councilman Petterson on the following roll call vote:
AYES: Councilmen Dunin, Jorgensen, Petterson,'Settle and Mayor Schwartz
NOES: None
ABSENT: None
ATTEST:
itzpatrick, CITY CLERK
ORDINANCE NO. 778 (1978 Series)
AN ORDINANCE OF THE CITY OF SAN LUIS OBISPO PROVIDING
FOR THE GRANTING OF FRANCHISES FOR COMMUNITY ANTENNA
TELEVISION SYSTEMS IN THE CITY; PROVIDING TERMS AND
CONDITIONS FOR THE OPERATION OF SUCH COMMUNITY ANTENNA
TELEVISION SYSTEMS AND FEES THEREFOR; AND REPEALING
ORDINANCES NO. 244 AND 288.
I i
BE IT ORDAINED by the Council of the City of San Luis Obispo as follows:
SECTION 1. A nonexclusive franchise to construct, operate and maintain
a community antenna television system in the City of San Luis Obispo may be
granted by the City Council to any person, firm or corporation offering to
furnish and provide such system under and pursuant to the terms and provisions
of this ordinance.
SECTION 2. DEFINITIONS: For the purpose of this ordinance, the
following terms, phrases, words and their derivations shall have the meaning
given herein:
(a) "CITY": The City above named, a municipal corporation of the
State of California, in its present incorporated form or in any later
recognized, consolidated, enlarged or reincorporated form.
(b) "COUNCIL ": The present governing body of the City or any
future board constituting the legislative body of the City.
(c) "COMMUNITY ANTENNA TELEVISION SYSTEM ": Hereinafter referred
to as ""CATV"", coaxial cables, wave guides, or other conductors and
equipment for providing television service by cable or through its
facilities as herein contemplated. CATV shall not mean or include
the transmission of any special program or event in the manner com-
monly known and referred to as "pay television " transmission.
(d) "GRANTEE ": The persons or corporations to whom or which a
franchise under this ordinance is granted by the City Council and
the lawful successor or assigns of said persons or corporations.
(e) "GROSS ANNUAL RECEIPTS " -. Any and all compensation and other
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Ordinance No. 778
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consideration in any form paid by the subscriber or sponsor to the
Grantee arising from the sale of said CATV services to customers
within the corporate limits of the city.
Gross Annual Receipts shall not include any taxes on the services
furnished by the Grantee imposed directly on any user or subscriber
by any city, state or other government unit and collected by the
Grantee for such governmental unit.
(f) "LOCAL STATIONS ": A television broadcasting station whose
principal city coverage (77 dbu) includes the City of San Luis Obispo.
The principal city coverage shall be determined by measurements made
in accordance with Section 73.686 (S.73.686) of the Rules and Regulations
(R.R.) of the Federal Communications Commission (F.C.C.).
(g) "STREET ": The surface of, and the space above and below,
any public street, road, highway, freeway, lane, alley, court, side-
walk, parkway, or drive, now or hereafter existing as such within the
city.
(h) "SUBSCRIBERS ": Any person or entity receiving for any purpose
the CATV service of the Grantee herein.
SECTION 3. USES PERMITTED BY GRANTEE: Any nonexclusive franchise
granted pursuant to the provisions of this ordinance shall authorize and permit
the Grantee to engage in the business of operating and providing a CATV system
u
in the City of San Luis Obispo and for that purpose to erect, install, construct,
repair, replace, reconstruct, maintain and retain in, on, over, under, upon,
across and along any public street or highway, such poles, wires, cables,con-
ductors, ducts, conduits,vaults, manholes, amplifiers, appliances, attachments,
and other property as may be necessary and appurtenant to the CATV system; and
in addition, so to use, operate and provide similar facilities or properties
AG:ktm -2- 8/25/78
Ordinance No. 778 (1978 Series)
rented or leased from a public utility franchised or permitted to do business
in the City of San Luis Obispo.
The Grantee may make a charge to subscribers for connection to its
CATV system and a fixed monthly charge as filed and approved as herein pro-
vided, for transmission to them only of television programs received free by
the public generally and /or closed circuit educational TV.
SECTION 4. DURATION OF FRANCHISE: No franchise, granted by the City
Council under this ordinance, shall be for a term longer than fifteen (15)
years following the date of acceptance of such franchise by the Grantee or
the renewal thereof. Any such franchise may be terminated prior to its date
of expiration by the City Council in the event that said council shall have
found, after notice and public hearing, that (a) Grantee has failed to comply
with any provision of this ordinance, 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 has become invalid or unenforceable,
and the council .further finds that such provision constitutes a consideration
material to the grant of said franchise; provided, however, that the Grantee
shall be given at least thirty (30) days notice of any proposed termination
proceedings.
SECTION 5. FRANCHISE PAYMENT: Any Grantee granted a franchise under
this ordinance shall pay to the City, during the life of such franchise, and
at the times hereinafter specified, a sum equal to a percentage of the monthly
total gross receipts of the Grantee based upon proposals, to be received by the
council, and such payment.by the Grantee to the City shall be in lieu of any
occupation tax, license tax or similar levy, and shall be paid monthly within
ten (10) days after the end of each month. If the monthly payment based on
AG :ktm -3- 8/25/78
Ordinance No. 778 (1978 Series)
the percentage of the monthly total gross receipts of the Grantee amounts to
less than $100.00 per month, then Grantee shall pay the City the minimum amount
of $100.00 per month.
The Grantee shall file with the City, within thirty (30) days after
the expiration of any calendar year during which such franchise is in force,
a financial statement prepared by a certified public accountant showing in
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 fifteen (1S) days after the time for filing
such statements, any unpaid balance for the calendar year covered by such
statements.
The City shall have the right of inspection of all of the Grantee's
records pertaining to Grantee's operations within the City of San Luis Obispo.
SECTION 6. LIMITATIONS OF FRANCHISE:
(a) Franchise granted under this ordinance shall be nonexclusive.
(b) No privilege or exemption shall be granted or conferred by
any franchise granted under this ordinance except those specifically prescribed
herein.
(c) Any privilege claimed under such franchise by the Grantee in
any street, or other public property, shall be subordinate to any prior lawful
occupancy of the streets, or other public property.
(d) Any such franchise shall be 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, in whole or in part, either by forced or
involuntary sale, or by voluntary sale, merger, consolidation or otherwise,
without prior consent of the City Council of the City expressed by resolution,
and then only under such conditions as may be therein prescribed. The said
AG:ktm -4- 8/23/78
Ordinance No. 778 (1978 Series)
consent of the City may not be arbitrarily refused; provided, however, the
proposed assignee must show financial responsibility and must agree to comply
with all provisions of this ordinance; and provided, further, that no such
consent shall be required for a transfer in trust mortgage or other hypothe-
cation as a whole, to secure an indebtedness.
(e) The Grantee shall have no recourse whatsoever against the City
for any loss, cost, expense, or damage, arising out of any provisions or
requirements of this ordinance or its enforcement.
(f) The Grantee is subject to all requirements of the City
ordinances, rules, regulations and specifications of the City heretofore or
hereafter enacted or established, including, but not limited to, those con-
cerning street work, street excavations, use, removal and relocation of
property within a street, and other street work.
SECTION 7. RIGHTS RESERVED TO THE CITY: There is hereby reserved to
the City every right and power which is required to be herein reserved or
provided by any ordinance of the City, and the Grantee, by its acceptance
of any franchise, agrees to be bound thereby and to comply with any action or
requirements of the City in its exercise of such right or power, heretofore
or hereafter enacted or established. However, every proposal shall include
complete CATV service in the entire area within the City limits.
SECTION 8. PERMITS AND AUTHORIZATIONS: The Grantee shall proceed
with due diligence to obtain or maintain all necessary permits and authoriza-
tions which are required in the conduct of its business, including utility
joint use attachment agreements, and microwave carrier licenses to be granted
by duly constituted regulatory agencies having jurisdiction over the operation
of CATV systems,, or their associated microwave transmission facilities. Further,
AG:ktm -5- 8/25/78
Ordinance No. 778 (1978 Series)
the Grantee shall commence the installation within ninety (90) days subsequent
to the obtaining of all the necessary permits and authorizations, and shall
proceed to render service to subscribers within sixty (60) days following
the commencement of installation of the system. The completion of the installa-
tion shall be pursued with reasonable diligence thereafter, so that service to
all areas designated on the map accompanying the application for franchise,
as provided in Section 19 hereof, shall be provided within twelve (12) months
from the date that service was first rendered, provided that the council may,
upon request of the applicant, grant an extension of time if the council
determines such request is justified. Failure to do any of the foregoing shall
be grounds for termination of franchise.
SECTION 9. LOCATION OF GRANTEE'S PROPERTIES:
(a) Any poles, wires, cable lines, conduits or other properties
of the Grantee to be constructed or installed in streets, shall be so con-
structed or installed only at such locations and in such manner as shall be
approved by the Community Development Director of the City acting in the
exercise of his reasonable discretion.
(b) The Grantee shall not install or erect any facilities or
apparatus- on public property or rights -of -way within the City (except those
installed or erected upon public utility facilities now existing), without
written approval of the Community Development Director of the City.
(c) In those areas and portions of the City where either the
transmission and distribution facilities of the public utility providing tele-
phone service, or those of the utility providing electric service, are under-
ground or hereafter may be placed underground, then the Grantee shall likewise
construct, operate and maintain all of its transmission and distribution
facilities underground. Amplifiers in Grantee's transmission and distribution
AG:ktm -6- 8/25/78
Ordinance No. 778 (1978 Series)
lines may be in concrete boxes or vaults upon the surface of the ground.
SECTION 10. REMOVAL OR ABANDONMENT OF PROPERTY OF GRANTEE:
(a) In the event that the use of any part of the CATV system is
discontinued for any reason for a continuous period of twelve (12) months, or
in the event such system or property has been installed in any street or public
place without complying with the requirements of its franchise, or the franchise .
has been termined, cancelled or has expired, the Grantee shall promptly, upon
being given notice, remove from the streets or public places all such property
and poles or such system other than any which the Community Development Director
may permit to be abandoned in such 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 Community Develop-
ment Director.
SECTION 11. CHANGE REQUIRED BY PUBLIC IMPROVEMENT: The Grantee shall,
at its expense, protect,.support, temporarily disconnect, relocate in the same
street, alley or public place, or remove from the street, alley or public place,
any property of the Grantee when required by the Community Development Director
by reason of traffic conditions, public safety, street vacation, freeway and
street construction, 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 governmental agencies when acting in a
governmental or proprietary capacity, or any other structures or public
improvements; provided, however, the Grantee shall in all such cases have the
privileges and be subject to the obligations to abandon any property of the
Grantee in place, as provided in Section 10 hereof.
AG :ktm -7- 8/25/78
Ordinance No. 778 (1978 Series)
SECTION 12. FAILURE TO PERFORM STREET WORK: Upon failure of the Grantee
to complete any work required by law or by the provisions of this ordinance to
be done in any street, within the time prescribed, and to the satisfaction of
the Director of Public Services, the Director may cause such work to be done
and the Grantee shall pay to the City the cost thereof in the itemized amounts
reported by the Director of Public Services to the Grantee, within thirty (30)
days after receipt of such itemized report.
SECTION 13. FAITHFUL PERFORMANCE BOND:
(a) The Grantee shall, concurrently with the filing of and acceptance
of award of any franchise granted under this ordinance, file with the City Clerk,
and yearly thereafter maintain in full force and effect for the term of such
franchise., at Grantee's sole expense, a corporate surety bond in a company
approved by, and in a form to be approved by, the City Attorney, in the amount
of $25,000.00, renewable annually, and conditioned upon the faithful performance
of Grantee, and upon the further condition that in the event Grantee shall fail
to comply with any one or more of the provisions of this ordinance, or of any
franchise issued to the Grantee hereunder, there shall be recoverable jointly
and severally from the principal and surety of such bond any damages or loss
suffered by the City as a result thereof, including the full amount of any com-
pensation, indemnification, or cost of removal or abandonment of any property
of the Grantee as prescribed hereby which may be in default, plus a reasonable
allowance for attorney's fees and costs, up to the full amount of the bond;
said condition to be a continuing obligation for the duration of such franchise
and thereafter until the Grantee has liquidated all of its obligations with
the City that may have arisen from the acceptance of said franchise by the
Grantee or from its exercise of any privilege therein granted. The bond
shall provide that thirty (30) days prior written notice of intention not to
renew, cancellation, or material change, be given to the City.
AG:ktm -8- 8/25/78
Ordinance No. 778
(1978 Series)
(b) Neither the provisions of this section, any bond accepted by
the City pursuant thereto, nor any damages recovered by the City thereunder,
shall be construed to excuse faithful performance by the Grantee or limit the
liability of the Grantee under any franchise issued hereunder or for damages,
either in the full amount of the bond or otherwise.
SECTION 14. PENAL BOND:
(a) Grantee shall, concurrently with the filing of and acceptance
of award of any franchise granted under this ordinance, file with the City
Clerk, and yearly thereafter maintain in full force and effect, until the
council determines that the Grantee has provided service to all areas of the
City of San Luis Obispo in accordance with such franchise, a penal bond in
the amount of $10,000.00,:in a company approved by, and in a form to be
approved by.� the City Attorney, payable to the City of San Luis Obispo if
the council, after public hearing and thirty (30) days notice to the Grantee
of the council's intention to hold such public hearing, determines that the
Grantee has failed in any material manner to provide service to all areas of
the city in accordance with said franchise.
(b) Upon such determination by the council as set forth in para-
graph (a) above, the full amount of said bond shall be paid to the City as a
penal amount in addition to any damages recoverable by the City.
SECTION 15. INDEMNIFICATION OF THE CITY:
(a) The Grantee shall, at all times during the existence of any
franchise issued hereunder, maintain in full force and effect, furnish to the
City, and file with the Council of the City of San Luis Obispo at Grantee's
cost and expense, a general comprehensive liability insurance policy, in
protection of the City of San Luis Obispo, its officers, boards, commissions,
AG:ktm -9- 8/25/78
Ordinance No.
778 (1978 Series)
agents and employees, in a company approved by the City Administrative Officer
and in a form satisfactory to the City Attorney, protecting the City and all
persons against liability for loss or damage for personal injury, death, and
property damage, occasioned by the operations of Grantee under such franchise,
with minimum liability limits in the amount of One Million Dollars ($1,000,000.00).
(b) The policies mentioned in the foregoing paragraph shall name
the City of San Luis Obispo, its officers, boards, commissions, agents and
employees, as additional insured and shall contain a provision that a written
notice of any cancellation or reduction in coverage of said policy shall be
delivered to the City thirty (30) days in advance of the effective date thereof;
if such insurance is 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.
(c) No franchise granted under this ordinance shall be effective
unless and until each of the foregoing policies of insurance as required in
this section have been delivered to the City.
SECTION 16. INSPECTION OF PROPERTY AND RECORDS: At all reasonable
times, the Grantee shall permit any duly authorized representative of the City
to examine all property of the Grantee, together with any appurtenant property
of the Grantee situated within or without the City, and to examine and tran-
scribe any and all maps and other records kept or maintained by the Grantee or
under its control which deal with the operation, affairs, transactions or
property of the Grantee with respect thereof. The Grantee shall, at all times,
make and keep in the city full and complete plans and records showing the exact
location of all CATV system equipment installed or in use in streets, alleys
and public places in the city. The Grantee shall file with the Community
Development Director, on or before the last day in March of each year., a
AG:ktm -10- 1 8/25%78
Ordinance No. 778 (1978 Series)
current map or set of maps drawn to scale to be designated by the Community ,
Development Director, showing all CATV system equipment installed in streets,
alleys and public places of the City during the previous year.
SECTION 17. OPERATIONAL STANDARDS: The CATV system shall be installed
and maintained in accordance with the highest and best accepted standards of
the industry to the effect that subscribers shall receive the highest possible
service. In determining the satisfactory extent of such standards the following
will apply:
(a) The system shall be installed using all -band equipment capable
of passing the entire VHF and FM spectrum, and it shall have the further capa-
bility of converting UHF for distribution to subscribers on the VHF band.
(b) The system, as installed, shall be capable of passing standard
color TV signals without the introduction of noticeable effects on color fidelity
and intelligence.
(c) The system and all equipment shall be designed and rated for
24- hour - per -day continuous operation.
decibels.
(d) The system signal -to -noise ratio shall be not less than 46
(e) Hum modulation of picture signal shall be less than 50.
(f) The system shall use components having VSWR of 1.4 or less.
(g) Each CATV subscriber shall receive a minimum signal strength
of One Thousand. (1,000) microvolts as measured at the antenna terminals of the
television set. The pick -up signal will be located at a point to insure maximum
efficiency for picking up the television signals to be distributed. The picture
should be free of ghosting, multi -path and man -made interference. Methods of
measuring above standards, where necessary, will be established by the City Council.
AG:ktm -11 8/25/78
Ordinance No. 778
(1978 Series)
(h) In the event the council determines that the quality of service
being rendered by the Grantee is not equal to comparable systems delivering
service in the State of California, the Grantee, upon written notice from
the council, shall, with due diligence do whatever is necessary to bring its
service up to such standards.
SECTION 18. MISCELLANEOUS PROVISIONS:
(a) All matters herein provided to be filed with the City shall
be filed with the City Clerk.
(b) If Grantee should fail to operate its system for a period of
two (2) years from the date such service begins, the subscribers who have paid
installation charges shall be entitled to a refund of the installation charges
less 1 /24th of each charge for each month elapsing from the time service was
first started to that subscriber and during wich time service was available
to him. Grantee shall maintain in a trust fund, subject to approval of City,
an amount sufficient to pay that portion of the refund provided for in this
Section.
(c) The rate schedule for any service agreement or increase thereto
to subscribers must have written approval of the City Council
(d) The Grantee shall pay to the City a sum of money sufficient
to reimburse it for expense incurred by it in publishing legal notice and
ordinances in connection with the granting of a franchise pursuant to the
provisions of the ordinance; such payment to be made within thirty (30) days
after the City shall furnish such Grantee with a written statement of such
expense.
(e) The Grantee shall maintain an office within the city limits
of the City of San Luis Obispo so that CATV maintenance service shall be
promptly available to subscribers upon telephone request between the hours
AG:ktm -12- 8/25/78
Ordinance No. 778
(1978 Series)
of 9:00 A.M. and 6:00 P.M. of each day that Grantee is transmitting signals
to subscribers.
(f) The Grantee shall not engage in the business of selling tele-
vision or other receivers which make use of signals transmitted by its system,
nor shall the Grantee engage in the repair of such receivers or the sale of
parts for the same.
(g) The said CATV system operated by the Grantee shall deliver
adequate television signals from at least six (6) television stations in
addition to Channel 6, Channel 3 and any channel installed in the San Luis
Obispo or Santa Maria area. The application shall set forth the television
stations to be delivered.
(1) When it occurs that there is simultaneous duplication of
the program being broadcast by a local station which is duly licensed
by the Federal Communications Commission and authorized to furnish free
television service to the area within the city limits of San Luis Obispo,
and when such programs being duplicated are identical, as to time and
program content, then for that period of time as such duplication
exists, the signals of the outlying station shall not be transmitted
to subscribers of the CATV system and only those signals broadcast by
the local station shall be used by the Grantee to provide service to
its subscribers.
(h) If Grantee provides any FM stations or stereo background
music from outside the primary service area, then the Grantee must also carry
local FM stations.
(i) The Grantee shall cooperate with the San Luis Obispo School
Board in providing educational television service when available to this area.
(j) There shall be no noticeable degradation of any picture signal
received by the CATV system.
AG:ktm -13- 8/•25/78
Ordinance No. 778
(1978 Series)
(k) The provisions of this ordinance shall apply to any franchise
agreement heretofore or hereafter awarded.
SECTTON 19, APPLICATION FOR FRANCHISE:
(a) Application for a franchise hereunder shall be filed with the
City Clerk in a form approved by the City and shall contain the following infor-
mation:
(i) The name and address of applicant.
(ii) A general description of applicant's proposed CATV
operation, including map of areas to be served.
(iii) A statement or schedule in a form approved by the City
of proposed rates and charges to subscribers for installation and
services, and a copy of proposed service agreement between the Grantee
and its subscribers shall accompany the application. For unusual
circumstances, such as underground cable required, or more than 150
feet of distance from cable to connection of service to subscribers,
an additional installation charge over that normally charged for
installation as specified in the applicant's proposal may be charged,
with easements to be supplied by subscribers at no charge. For remote,
relatively inaccessible subscribers within the City, service will be
made available on the basis of cost of materials, labor and easements
if required. The applicant shall set forth the standards for determining
such remote areas.
(iv) A statement of the corporate organization of applicant,
including the names and addresses of its officers, directors and
associates and also including the names of subsidiary companies with
a listing of other areas being served by CATV or similar systems.
AG:ktm -14- 8/25/78
Ordinance No. 778 (1978 Series)
(v) A statement setting forth all agreements and understandings,
whether written, oral or implied, existing between the applicant and any
person, firm, group or corporation with respect to the franchise and
the proposed operations. If a franchise is granted to a person, firm,
group or corporation posing as a front or representative for another
person, firm, group or corporation, and such information is not dis-
closed in the original application, such franchise shall be revoked
automatically, and the council shall consider awarding the franchise
to another qualified applicant.
(vi) Applicant shall also furnish a financial statement pre-
pared by a certified public accountant as to the company's or corpora-
tion's financial ability to complete installation and operation of the
CATV system.
(vii) A statement of proposed percentage franchise payment to
the City referred to in Section 5 of this ordinance.
(b) Upon consideration of any such application, the City Council
may grant a franchise for CATV to such applicant as may appear from said appli-
cation to be in its opinion best qualified to render proper and efficient CATV
service to television viewers and subscribers in the City of San Luis Obispo.
The council's decision in the selection will be final.
(c) Any franchise issued pursuant to this ordinance shall include
the following conditions:
"The CATV system herein franchised shall be used and
operated solely and exclusively for the purpose expressly autho-
rized by ordinance of the City of San Luis Obispo, and no other
purpose whatsoever."
AG:ktm -15- 8/25/78
Ordinance No. 778 (1978 Series)
The inclusion of the foregoing statement in any such franchise
shall not be deemed to limit the authority of the City Council to include any
other reasonable condition, limitation or restriction which it may deem neces-
sary to impose in connection with such franchise pursuant to the authority
conferred by this ordinance.
SECTION 20. Ordinance No. 244 (1962 Series) and Ordinance No. 288 (1964
Series) are hereby repealed.
SECTION 21. This ordinance, together with the ayes and noes, shall be
published once in full, at least three days before its final passage, in the
Telegram- Tribune, a newspaper published and circulated in said city, and the
same shall go into effect at the expiration of thirty (30) days after its
final passage.
INTRODUCED AND PASSED TO PRINT this 5th day of September , 1978,
on motion of Councilman Dunin seconded by Councilman Petterson and
on the following roll call vote:
AYES: Councilmen Dunin, Jorgensen, Petterson, Settle, and Mayor Schwartz
NOES: None
ABSENT: None
ATTEST:
TI-erR-J.- H. Fitzpatrick
AG:ktm -16- 8/25/78
Ordinance No. 778
Approved as to orm:
t
City Attorney
Approved as to content:
City Administrative Nficer
birectof of Public Services
Commun
I
finance Dire
(1978 Series)
elonmefit Director
AG:ktm -17- 8/25/78
ORDINANCE NO. 778
FINALLY PASSED this 19th day of September 1978 ,
on motion of Councilman Jorgensen seconded by
Councilman Petterson on the following roll call vote:
AYES: Councilmen Dunin, Jorgensen, Petterson, Settle and Mayor Schwartz
NOES: None
ABSENT: None
ATTEST:
r-
itzpatrick, CITY CLERK