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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 AG:ktm 8/25/78 n �70 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 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 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 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 (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 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- 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 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. 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. 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. AG:ktm -14- 8/25/78 l 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 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 AG:ktm -16- 8/25/78 ----�-- - — ' ----' - ----' -------7�- - —' --- ! . ( ordinance No, 778 Approved as to orm: City Attorney (1978 Series) Approved as to content: Directof of Public Services AG:ktm -17- 8/2G/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: 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 AG:ktm 8/25/78 r) 77Q 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 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