HomeMy WebLinkAbout1978-03-21; City Council; 5207-4; Awarding Cable TV Frachise to Daniel's Cablevision33
^
CITY OF CARLSBAD
Initial:
AGENDA BILL NO. 5207 Supplement # 4 Dept. Hd.
DATE: March 21, 1978 C. Atty.
DEPARTMENT: Public Works - Utilities & Maintenance
Subiecf AWARDING CABLE TV FRANCHISE TO
DANIEL'S CABLEVISION
Statement of the Matter
Council awarded a Cable TV franchise to Daniel's Properties effective November 19,
1977. Subsequent corporate reorganization and refinancing by Daniel's has resulted
in the formation of Daniel's Cablevision to operate the Carlsbad franchise. This
necessitates certain Council approvals and the reissuance of the franchise in the
name of Daniel 's Cablevision. It should be noted that Daniel's Properties and Daniel's
Cablevision are separate corporations, although the officers of both corporations are
the same. A memorandum from the Director of Utilities & Maintenance and supporting
correspondence is contained in Exhibit "A".
Exhibits
A. Memorandum from the Director of Utilities & Maintenance to the City Manager
dated March 13, 1978.
B. Resolution No. SS^I which extends the period for Daniel's Properties to
accept the franchise December 29, 1977 to March 31, 1978.
C. Resolution No. .X^,^ which approves the acceptance of the franchise by
Daniel's Properties.
D. Resolution No. S3 which approves the assignment of the franchise by
Daniel's Properties to Daniel's Cablevision.
E. Resolution No. 53$* which approves the acceptance of the franchise by
Daniel's Cablevision.
Recommendation
If Council concurs with staff recommendations, adopt Resolution
No. " Ho'Jtl^L-' and No
Council action
3-21-78 Resolutions No. 5341, 5342, 5343 and 5344 were adopted, as
recommended by staff.
''March 13, 1978 78~51
MEMORANDUM
TO: City Manager
FROM: Director of Utilities & Maintenance
SUBJECT: Franchise for Daniel's Cablevision
Council awarded a Cable TV franchise to Daniel's Properties at their
meeting of October 4, 1977 - effective date of this franchise was
November 19, 1977. Daniel's was required to formally accept the
franchise within 40 days or by December 29, 1977, in accordance with
our ordinance. The franchise was accepted by Daniel's Cablevision
on December 29 by letter (not the form approved by the City Attorney).
The proper acceptance form was completed after telephonic notification
and was received on January 3, 1978. It is considered that the accept-
ance substantially met the requirements of the City's ordinance. However,
acceptance was in the name of Daniel's Cablevision instead of Daniel's
Properties to whom the franchise was awarded.
Daniel's Cablevision, a Delaware Corporation authorized by the Secretary
of State to do business in California, was formed after the award of the
City of Carlsbad franchise by Daniel's for the purpose of operating the
Carlsbad franchise and other operations in Southern California. ACSI,
the original Cable TV consultant, was retained in early January to review
Daniel's Cablevision and to make recommendations as to awarding the fran-
chise to that Corporation. ACSI responded to the City on February 8, 1978
with the recommendation that the franchise be awarded to Daniel's Cablevision.
The basis for this recommendation, recognizing that Daniel's Cablevision is
not a subsidiary of Daniel's Properties but a separate corporate entity,
was that Daniel's Cablevision is licensed by the Secretary of State and
appropriate insurance and financial guarantees have been made in it's own
name. It should be noted that the officers of both corporations are the
same. The ACSI recommendation is attached as Tab "A".
Daniel's Properties was advised early in the process, that there were
problems associated with the acceptance in the name of Daniel's Cable-
vision. They have been most cooperative and have provided appropriate
documentation to rectify the matter. It is considered that the following
steps are necessary in order that the franchise may be awarded in accordance
with the ordinance:
1. Daniel's Properties must request extension of the acceptance
period (from December 29, 1977 to March 31, 1978).
2. Daniel's Properties must accept the franchise.
Daniel's Cablevision (continued) -2- March 13, 1978
3. Daniel's Properties must assign the franchise to Daniel's
Cablevision.
4. Daniel's Cablevision must accept the franchise and be in full
compliance with the ordinance as pertains to insurance, bonding
and hold harmless agreements. It should be noted that all four
actions require Council approval. Documents supporting these
required actions are contained as Tab B, C, D, and E.
Based on the consultants recommendation and the documentation provided by
Daniel's Properties and Daniel's Cablevision, it is recommended that Daniel's
Cablevision be awarded the Cable TV franchise originally awarded to Daniel's
Properties. Resolutions supporting these actions will be prepared for Council
approval.
As a matter of information, Daniel's Cablevision is proceeding with arrangements
to begin operations as soon as possible. They have completed negotiations with
Mr. Allen Kelly for the head-end location; have applied for FCC certification;
are expecting delivery of material to complete installation of the Seaport
development (they will buy the signal from La Costa Cable for this part of their
operation); have negotiated with and expect to finalize the purchase of Carlsbad
Palisades community system within thirty days; will commence negotiations for
the community antenna systems for Tiburon and Alta Mira. It is their intent
to operate the community antenna systems as they presently exist until such time
as their facilities to receive and distribute signal is installed.
W. GREER
Director of Utilities & Maintenance
Attachments
RWG:pag
PLANNING, DESIGN AND
MANAGEMENT CONSULTING SERVICES
February 8, 1978
Mr. Roger Greer
Director of Utilities & Maintenance
City of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008
Dear Mr. Greer:
ACS I recommends that the CATV Franchise be awarded to Daniels Cablevision,
Inc. (DCI).
Our initial recommendation was to award the Franchise to Daniels Properties,
Inc. (DPI), in whose name financial statements were submitted in the appli-
cation. The natural assumption was that the not inconsiderable resources of DPI
were to back the Carlsbad effort.
However, during this time DPI went through a major refinancing effort whose
initial terms did not include Carlsbad because the franchise recommendation
had not been made at that time.
Daniels Cablevision, Inc., was then incorporated to be the vehicle through
which Carlsbad would be built. It is not a subsidiary of DPI, nor does it
have any connection with DPI at this point. There is nothing to prevent future
merger or association, but that is mere speculation.
ACS I has verified that DCI is licensed by the Secretary of State to do business
in California and has thus satisfied all legal requirements. Further, DCI has
appropriate insurance and financing guarantees issued in its own name.
It is this last point that, in our opinion, makes the case a valid one. A feature
of every corporation is that liability of the Owner is limited to contributed
capital. Even if DCI were a wholly owned subsidiary of DPI, it still would
have the feature of limited liability. Hence, it is a critical point that DCI
have adequate guarantees in its own right.
3OOO SAND HILL ROAD, MENLO PARK, CALIFORNIA 94O25 (415) 854-YO3O
Mr. Roger Greer
February 8, 1978
Page 2
After discussions with appropriate DPI personnel, examination of submitted
documents, and independent verification, ACSI is of the opinion that
granting the Franchise to Daniels Cablevision, Inc., is in the best interest
of the City of Carlsbad.
Very
Guinn O. Leverett
Senior Consultant
GOL/ma
1
2
3
4
5
6
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 5341
A RESOLUTION OF THE CITY OF CARLSBAD, CALIFORNIA,
EXTENDING THE PERIOD FOR ACCEPTING THE FRANCHISE
AWARDED TO DANIEL'S PROPERTIES FROM FORTY DAYS TO
ONE HUNDRED AND THIRTY-TWO DAYS AND SETTING THE
TIME LIMIT FOR WRITTEN ACCEPTANCE TO BE NO LATER
THAN 12:01 p.m.. MARCH 31, 1978.
WHEREAS, in accordance with the procedures of Chapter 5.28.130 (b)
of the .Carlsbad Municipal Code, the fortieth day for acceptance of the
Cable TV franchise by Daniel's Properties was 12:01 p.m. of December 29,
1977; and
WHEREAS, Daniel's Properties has requested of the City Council of
the City of Carlsbad that the period of acceptance be extended to
March 31, 1978, a period of 92 days in excess of the original 40 days
provided by Chapter 5.28.130 (b) of the Carlsbad Municipal Code, in order
for the applicant to accomplish certain reorganization and refinancing
objectives and; .
WHEREAS, it is in the public interest of the City of Carlsbad to
extend this acceptance period;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad as follows:
1. The above recitations are true and correct.
2. Pursuant to Section 5.28.130(c) the Council extend the
acceptance period by ninety-two days to 12:01 p.m. on March
31, 1978 and impose no additional terms or conditions to this
acceptance.
XXX
XXX
XXX
XXX
PASSED, APPROVED AND ADOPTED at a regular meeting of the
Carlsbad City Council held on the 21st day of March 1978
by the following vote, to wit:
AYES:
NOES:
ABSENT: None
Councilmen Packard, Skotnicki, Anear and
Councilwoman Casler
None
8
c
10
11
12
RONALD C. PACKARD, Mayor
ATTEST:
E. ADAMS, CTtfy Clerk
(SEAL)
\15-
16
17
18
19
20
21
22
23
24
25
26
27
28 -2-
RESOLUTION NO. 5342
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, APPROVING THE ACCEPTANCE
OF THE CABLE TV FRANCHISE BY DANIEL'S PROPERTIES,
INC. PURSUANT TO CHAPTER 5.28.130(a) OF THE
CARLSBAD MUNICIPAL CODE.
WHEREAS, the City Council of the City of Carlsbad approved the
extension of the period for acceptance of the Cable TV franchise by
Daniel's Properties from forty to one hundred thirty-two days by
Resolution No. 5341 ; and
WHEREAS, Daniel's Properties has submitted an agreement in the form
and substance approved by the City Attorney accepting the franchise within
the approved time frame;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad as follows:
1. The above recitations are true and correct.
2. Pursuant to Chapter 5.28.130 of the Carlsbad Municipal Code
acceptance of the Cable TV franchise by Daniel's Properties,
Inc. is approved.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad
City Council held on the21st day of March . 1978 by the following
vote, to wit:
AYES:
NOES:
ABSENT:
ATTEST:
Councilmen Packard, Skotnicki, Anear and
Councilwoman Casler
None
None
DONALD C. PACKARD, Mayor
MAMJAR'ET E
(SEAL)
\ ' 1
DAMS, City Clerk
1 RESOLUTION NO. 5343
2 A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING
3 THE ASSIGNMENT OF THE CABLE TV FRANCHISE
FROM DANIEL'S PROPERTIES, INC. TO DANIEL'S
4 CABLEVISION, INC. PURSUANT TO SECTION
5.28.140(d) OF THE CARLSBAD MUNICIPAL CODE.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WHEREAS, in accordance with the provisions of Section 5.28.140(d)
of the Carlsbad Municipal Code Daniel's Properties, Inc. has requested
approval of the assignment of the Cable TV franchise from Daniel's
'roperties, Inc. to Daniel's Cablevision, Inc.; and
WHEREAS, the assignment is considered to meet the requirement for
xtraordinary circumstances for approving the assignment due to corporate
reorganization and refinancing; and
WHEREAS, Daniel's Cablevision, a corporation licensed to do business
n the State of California is considered to be capable of fulfilling all
if the obligations accepted by the original franchisee, and;
WHEREAS, Daniel's Properties, Inc. has provided an assignment of
'ranchise to Daniel's Cablevision, Inc. for the amount of ten dollars
ind other valuable considerations,
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
arlsbad as follows:
1. That the above recitations are true and correct.
2. Pursuant to Section 5.28.140(d) of the Carlsbad Municipal Code
the City Council of the City of Carlsbad recognizes the unusual circumstances
)f and approves the assignment of the Cable TV franchise from Daniel's
roperties, Inc. to Daniel's Cablevision, Inc.
XXX
XXX
XXX
1
2
3
4
5
6
7
8
9
10
11
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad
City Council held on the 21stday of March , 1978 by the following
vote, to wit:
AYES:
NOES:
ABSENT: None
Councilmen Packard, Skotnicki, Anear and
Councilwoman Casler
None
RONALD C. PACKARD, Mayor
ATTEST:
MARGARET/E. ADAMS, Crty Clerk
-.•/•'
' \ ' '
(SEAL) ;
-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
RESOLUTION NO. 5344
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, APPROVING THE ACCEPTANCE
OF THE CABLE TV FRANCHISE BY DANIEL'S CABLEVISION,
INC. PURSUANT TO SECTION 5.28.130(a) OF THE CARLSBAD
MUNICIPAL CODE.
WHEREAS, the City Council of the City of Carlsbad approved the
assignment by Daniel's Properties, Inc. of the Cable TV franchise granted
to them by Ordinance Number 6058 to Daniel's Cablevision, Inc.; and
WHEREAS, Daniel's Cablevision has submitted an agreement in the form
and substance approved by the City Attorney accepting the franchise within
the approved time frame;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad as follows:
1. The above recitations are true and correct.
2. Pursuant to Chapter 5.28.130 of the Carlsbad Municipal Code
acceptance of the Cable TV franchise by Daniel's Cablevision,- '
Inc. is approved.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad
City Council held on the 21st day of March , 1978 by the following
vote, to wit:
AYES: Councilmen Packard, Skotnicki, Anear and
Councilwoman Casler
NOES: None
ABSENT: None
RONALD C. PACKARD, Mayor
ATTEST:
E. ADAMS, City Clerk
M
(SEAL)
'
March 6, 1978
City of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008
Attention: Mr. Roger Greer
Re: Ordinance No. 6058
Gentlemen:
Pursuant to the provisions of Chapter 5.28 (Ordinance
No. 6055) of the Carlsbad Municipal Code, the City Council
of the City of Carlsbad granted a cable television franchise
or franchises (the -"Franchise") to La Costa Community Antenna
Systems, Inc. and Daniels Properties, Inc. ("DPI"). DPI was
named as one of said Grantees as a matter of convenience and
currently intends, and has intended, to transfer and assign ^
its rights under and interests in and to the Franchise1; Ac-
cordingly, DPI has not heretofore accepted the Franchise.
By the terms of the Franchise (and pursuant to the said
Ordinance No. 6055, as amended by Ordinance No. 6057), the
Franchise must be accepted in writing by the Grantees named
therein. Specifically, Ordinance No. 6055 (as amended as
aforesaid) requires written acceptance not later than
12:01 p.m. of the 40th day following the effective date of
the Franchise.
The purpose of this letter is to request an extension
of time during which DPI may accept the Franchise. It is
respectfully requested that the period of time during which DPI,
as one of the Grantees named in the Franchise, may accept the
same pursuant to and in accordance with the terms thereof and
in accordance with Ordinance No. 6055, as amended as aforesaid,
be extended to end at 12:01 p.m., March 31, 1978.
Very truly .yours,
Accepted and agreed to this £ I day of
CITY OF CARLSBAD
DANIELS PROPERTIES INC. | 293O EAST 3RD AVENUE1 | DENVER, COLORADO 802O6 |'aO3 321-755O
AGREEMENT
AN AGREEMENT BY Daniels Properties, Inc. accepting
the franchise granted by Ordinance No. 6058, adopted by
the City Council of the City of Carlsbad, California, on
October 18, 1977.
RECITALS
WHEREAS, the City of Carlsbad, after public hearing,
adopted Ordinance No. 6058 on October 18, 1977, to grant to
Daniels Properties, Inc., a nonexclusive franchise for a cable
television service in certain designated areas of the City
of Carlsbad; and
WHEREAS, said Ordinance No. 6058 set the terms and
conditions of said franchise, including the incorporation by
reference of all of the provisions of Chapter 5.28 of the
Carlsbad Municipal Code (Ordinance No. 6055, as amended by
Ordinance No. 6057); and
WHEREAS, said Ordinance provides that the franchise
is not effective until the franchisee has filed a written
acceptance of the grant with the City Clerk, which accepts
each and every term and condition and limitation contained
in Chapter 5.28 of the Carlsbad Municipal Code or said
Ordinance; and
WHEREAS, the franchisee is required by said Ordinance
and Chapter 5.28 to agree to hold the City harmless and to file
a surety bond with the City Clerk;
NOW, THEREFORE, BE IT RESOLVED that Daniels Properties,
Inc. agrees as follows:
1. That all of the above recitations are true and
correct as set forth above and are, and shall be, a part of
this agreement.
2. That by the execution of this agreement, Daniels
Properties, Inc. hereby makes its written acceptance of the
franchise granted by Ordinance No. 6058, in accordance with
the provisions of said Ordinance and Chapter 5.28 of the
Carlsbad Municipal Code.
3. That Daniels Properties, Inc., the franchisee of the
above-referenced franchise, hereby accepts every term, con-
dition and limitation contained in said franchise or in
Chapter 5.28 of the Carlsbad Municipal Code (Ordinance
No. 6055, as amended by .Ordinance No. 6057) and hereby agrees
to fulfill the same as franchisee thereunder. That franchisee
also agrees to be bound by and comply with and do all the
things required by the provisions of that franchise and
Chapter 5.28 of the Carlsbad Municipal Code as it now exists,
or as it may be hereafter amended.
4. That Daniels Properties, Inc. intends to transfer
the said transfer with the prior consent of the City and will
cause its assignee to submit for approval the assignee's bond
in the amount of $100,000.00.
5. That the franchisee hereby agrees to indemnify and
hold harmless the City, its officers, boards, commissions,
agents and employees against, and from any and all claims,
demands, causes of action, actions, suits, proceedings,
damages (including but not limited to damages to city property
and damages arising out of copyright infringements, and damages
arising out of any failure by franchisee to secure consents
from the owners, authorized distributors or licensees of
programs to be delivered by franchisee's cable television
system), costs or liabilities (including costs or liabilities
of the City with respect to its employees) of every kind and
nature whatsoever, including but not limited to damages for
injury or death or damage to person or property, regardless
of the merit of any of the same, including reasonable attorney
fees, reasonable accountant fees, reasonable expert witness
or consultant fees, court costs, reasonable per diem expense,
traveling and transportation expense or other provable and
reasonable costs or expense arising out of or pertaining to the
exercise or the enjoyment of the franchise granted to
Daniels Properties, Inc. by Ordinance No. 6058 or the granting
thereof by the City.
-2-
DATED:
John Saeman
President
STATE OF COLORADO
CITY AND
COUNTY OP DENVER
The above and
sworn/tcxJaefore me/ this
197/T
SS.
Danie 1 s^Properti e s , Inc.
~"'~"'>ftf
•••• • (?/~) , Witness my hand and official seal.
' "'' ', -V MY commission expires ;
subscribed and
Notary Public
•nil"''1'"
APPROVED AS TO FORM:
City Attorney
CERTIFICATE OF CITY CLERK
I hereby certify that the foregoing acceptance of
franchise was received by me at f'. 0O aviff./p.m. on the
(day of ,
E. Adamsf, City Clerk
-3-
March 6f 1978
City of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008
Attention: Mr. Roger Greer
Re: Franchise Granted by Ordinance No. 6058
Gentlemen:
Daniels Properties, Inc. ("DPI") is one of the Grantees
named in the referenced franchise (the "Franchise"). As such,
DPI has heretofore accepted the Franchise. DPI now desires to
transfer and assign.all of its right, title and interest in and
to the Franchise to Daniels Cablevision, Inc., a Delaware cor-
poration qualified to do business in California.
The purpose of this letter is to request consent as neces-
sary to effectuate a transfer of all of DPI's right, title and
interest in and to the Franchise to the said Daniels Cable-
vision, Inc. This request is made pursuant to the applicable
provisions of the Franchise including Section 5.28.140(d) of
Ordinance No. 6055, as amended by Ordinance No. 6057.
Enclosed are the following in support of the within
request:
1. An instrument of assignment wherein DPI assigns,
transfers and conveys all of its right, title and interest
in and to the Franchise to Daniels Cablevision, Inc. and
Daniels Cablevision, Inc. accepts all of the obligations,
liabilities and duties of DPI under and pursuant to the
Franchise.
2. An instrument accepting the Franchise signed by
Daniels Cablevision, Inc.
Very/?truly yours,
Jonn Saeman
President
Consented to this day of ' " _ , 197_.
CITY OF CARLSBAD
By :
DANIELS PROPERTIES INC. | 293O EAST 3 RD AVENUE | DENVER, COLORADO 802O6 | 3O3 321-755O
V'T
ASSIGNMENT OF FRANCHISE
*
IN CONSIDERATION OF TEN DOLLARS AND OTHER GOOD AND
VALUABLE CONSIDERATION in hand paid to the undersigned,
Daniels Properties, Inc. (the "Assignor"), a Delaware cor-
poration, the receipt and sufficiency of which is hereby
acknowledged, by Daniels Cablevision, Inc. (the "Assignee"),
a Delaware corporation, does by these presents grant, bargain,
sell, transfer, assign and set over unto Assignee, its successors
and assigns, all of Assignor's right, title and interest in and
to the Franchise or Franchises granted to Assignor pursuant to
Ordinance No. 6058 passed and adopted by the City Council of
the City of Carlsbad, California, on October 18, 1977 (a copy
of which Ordinance and other City of Carlsbad ordinances af-
fecting said Franchise or Franchises are annexed hereto and
made a part hereof for all purposes), together with any and all
interests of Assignor in and to rights arising out of or
incidental to said Franchise or Franchises for the operation
of Community Antenna Television Systems in or in the vicinity
of the City of Carlsbad, California.
. TO HAVE AND TO HOLD all and singular the above-described
rights, title, interests, powers and instruments, together with
UWTOall of the rights and privileges belonging thereto and- to the
said Assignee, its successors and assigns.
And Assignor covenants that it is a grantee under and
pursuant to the said Franchise or Franchises with full power,
right and authority to grant, transfer and assign the said
rights, title, interests, powers and instruments. Assignor and
Assignee acknowledge that it is necessary and desirable to
obtain the consent of the City of Carlsbad to the within transfer,
assignment and conveyance and to that end will use their mutual
best -efforts to acquire and effectuate such consent. Nevertheless,
as between Assignor and Assignee, the parties hereto expressly
agree that the within transfer, assignment and conveyance shall
be effective as of the date hereof. Further, Assignor agrees
to provide the City of Carlsbad, California, with Assignor's
written acceptance of the said Franchise or Franchises contingent
upon the acceptance hereof by Assignee.
IN WITNESS WHEREOF, this Assignment is executed this
of /si^z^ , 197^
DANIELS PROPERTIES, INC., a
Delaware corporation, Assignor
STATE OF COLORADO
CITY AND
COUNTY OF DENVER
./dbhn Saeman; President
) SS.
of
The above and foregoing Assignment of Franchisje^was sub-
scribed-~airdv sworn to before me this ^^S^day of
Daniels^iPiroperties, Inc., a Delaware corporation.
.,,.•,.,_ Witness my hand and official seal.
"••/•*,) My commission expires rff/
Public 1
ACCEPTED AND AGREED TO this
^;
DANIELS CABLEVISION, INC., a
Delaware corporation, Assignee
STATE OF COLORADO
CITY AND
COUNTY OF DENVER
B
x-OtsfTf) Scieman; President
) SS.
The above and f^oregoing was subscribed and swo
ine this *7^-^—day—of^/l/LSt^L^—— »
before
_
of Daniels Cablevision, Inc. ,
a Delaware corporation.
Witness my hand and official seal
My commission
£7Notary Public
-2-
C
1
2
3
4
5
6
7
8
9
10
11
13
' 14
CO
8 15
CO
I 16
O
§ "
§" 18 J
£>
; 20
21
22
23
24
25
26
27
28
ORDINANCE NO.' 6055
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD,' CALIFORNIA, AMENDING
TITLE 5 OF THE CARLSBAD MUNICIPAL CODE
BY THE ADDITION OF CHAPTER 5.28 TO ESTAB-
LISH A PROCEDURE FOR THE GRANTING OF FRAN-CHISES FOR CABLE TELEVISION SYSTEMS IN
THE CITY OF CARLSBAD. • "
The City Council of the City of Carlsbad, California, does
ordain as follows
SECTION 1: That Title 5 of the Carlsbad Municipal Code
is amended by the addition of Chapter 5.28^to,read as follows:
Sections:
"Chapter 5.28
CABLE TELEVISION
5.28.010 Definitions.
5.28.020 Franchise to install and operate.
5.281030 Cable television service.
5.28.040 Franchise payments.
5.28.050 Franchise term: duration, extension, termination
5.28.060 Foreclosure. '•
5.28.070 Receivership.
5.28.080 Applications for franchise: t
5.28.090 Bonds required.
5.28.100 Hold harmless agreement..
5.28.110 Defense of litigation.
5.28.120 Insurance required.
5.28.130 Acceptance of the franchise. '
5.28.140 Limitations of franchise.
5.28.150 Rights reserved to the City.
5.28.160 Standards of operation.
5.28.170 Rates. " " .
5.28.180 Accounting standards.
5.28.190 Annual financial report.
5.28.200 Permits and construction.
5.28.210 Additional franchise provisions.
5.28.220 Equal opportunity employment and affirmative
action plan.
5.28.230 Inadequate service - remedies.
5.28.240 Violations. • ...
5.28.250 Serverability.
• AGREEMENT •;
AN AGREEMENT BY Daniels Cable vis ion, Inc. accepting
the franchise granted by Ordinance No. 6058, adopted by
the City Council of the City of Carlsbad, California, on
October 18, 1977. . .
"• RECITALS
WHEREAS, the City of Carlsbad, after public hearing,
adopted Ordinance No. 6058 on October 18, 1977, to grant to
Daniels Properties, Inc., a nonexclusive franchise for a cable
television service in certain designated areas of the City
of Carlsbad; and .
WHEREAS, said Ordinance No. 6058 set the terms and
conditions of said franchise, including the incorporation by
reference of all of the provisions of Chapter 5.28 of the
Carlsbad Municipal Code (Ordinance No. 6055, as amended by
Ordinance No. 6057); and . ' .-
WHEREAS, said Ordinance provides that the franchise
is not effective until the franchisee has .filed a written
acceptance of the grant with the City Clerk, which accepts
each and every term and condition and limitation contained
in Chapter 5.28 of the Carlsbad Municipal Code or said
Ordinance; and
WHEREAS, the franchisee is required by said Ordinance
and Chapter 5.28 to agree to hold the City harmless and to file
a surety bond with the City Clerk;
NOW, THEREFORE, BE IT RESOLVED that Daniels Cahlevision,
Inc. agrees as follows:
1. That all of the above recitations are true and
correct as set forth above and are, and shall be, a part of
* * •
this agreement.
•
2. That by the execution of this agreement, Daniels
Cablevision,Inc. hereby makes its written acceptance of the
franchise granted by Ordinance No. 6058, in accordance with
the provisions of said Ordinance and Chapter 5.28 of the
Carlsbad Municipal Code.
• 3. That Daniels Cablevision,Ihc., the franchisee of the
above-referenced franchise, hereby accepts every term, con-
dition and limitation contained in said franchise or in
Chapter 5.28 of the Carlsbad Municipal Code (Ordinance
No. 6055, as amended by Ordinance No. 6057) and hereby agrees
to fulfill the same as franchisee thereunder. That franchisee
also agrees to be bound by and comply with and do all the
things required by the provisions of that franchise and
Chapter 5.28 of the Carlsbad Municipal Code as it now exists,
or as it may be hereafter amended.
4. That Daniels Cablevision, Inc. hereby submits for
approval its bond in the amount of $100,000.00.
5* That the franchisee hereby agrees to indemnify and.
hold harmless the City, its officers, boards, commissions,
agents and employees against, and from any and all claims,.
demands, causes of action, actions, suits, proceedings,
damages (including but not limited to damages to city property
and damages arising out of copyright infringements, and damages
arising out of any failure by franchisee to secure consents
from the owners, authorized distributors or licensees of
programs to be delivered by franchisee's cable television
system), costs or liabilities (including costs or liabilities
of the city with respect to its employees) of every kind and
nature whatsoever, including but not limited to damages for
injury or death or damage to person or property, regardless
of the merit of any of the same, including reasonable attorney
fees, reasonable accountant fees, reasonable expert witness
or consultant fees, court costs, reasonable per diem expense,
traveling and transportation expense or other provable and
reasonable costs or expense arising out of or pertaining to the
exercise or the enjoyment of the franchise granted to
Daniels Cablevision,Inc. by Ordinance No. 6058 or the granting
> " •' • * •
thereof by the City. ... ... '.» •
DATED:
John Saeman
President
STATE OF COLORADO
CITY AND
COUNTY OF DENVER
SS
'
The above and foregoing Agreement was subscribed and
sworn/tq^before me this •*? '#*- day ofr^^sL^*^*—* ' ,
&of
Daniels <£sElevision, Inc.,7"%, ' • '
./^.Witness my hand and official seal.
i>S \ VMy commission expires
APPROVED TO FORM:
VJTncent F. Biondo,
City Attorney
Notary Public
CERTIFICATE OF CITY CLERK
I hereby certify that the foregoing acceptance of
franchise was received by me at '.PO a^a-./p.m. on the
day of
MargarexE. Adams,cCity Clerk
-3-
Before the
FEDERAL COMMUNICATIONS COMMISSIO
Washington, D. C. 20554
In re Application of )
)
DANIELS CABLEVISION, INC. ) CAC No. 12559
Operator of a cable television ) Code No. CA0764
sys.tem at Carlsbad/ California )
)
For Certificate of Compliance )
for a new cable television )
system )
OBJECTION TO APPLICATION
Midwest Television, Inc., licensee of television
station KFMB-TV, San Diego, California, hereby objects to
the above-captioned application of Daniels Cablevision, Inc.
("Daniels"), for Certificate of Compliance for a new cable
television system at Carlsbad, California.
Carlsbad is within the 35-mile zone of San Diego,
* * f
California, which is the 51st-ranked television market in
Section 76.51 of the Commission's Rules. Daniels may, there-
fore, carry only those signals permitted under Section 73.63,
pertaining to CATV systems in the second-fifty major tele-
vision markets, and signals which may be "grandfathered"
under Section 76.65.
The application asserts that Daniels should be
authorized to carry the signal of KGOF, Channel 56, Anaheim,
pursuant to Section 76.61(e)(5) of the Rules as incorporated
in Section 76.63(a), which permits carriage of UHF stations
whose Grade B contour encompass the cable community unit as
"local" signals.
KGOF is an unconstructed station. Its construction
permit was granted in 1975. Daniels has not shown that the
predicted Grade B contour for the station's presently
- 2 -
authorized facilities — when computed according to present
prediction techniques adopted in Docket 16004, etc., 53 FCC
2d 855 (1975) — encompasses any part of the cable community
unit. In determining whether a station is a "local" station
under Section 76.61(e) (5), "contours based on the new predic-
tion methods are determinative," Report and Order in Docket
20496, 6.4 FCC 218, 226 (1977), and the burden of establish-
ing the location of the KGOF contour is on Daniels. Id.
Moreover, an application (BMPCT-7719) is presently
pending to change the authorized transmitter location/ power
and effective antenna height of KGOF. The Exhibit to that
application showing the predicted Grade A and B contours
for KGOF with the modified facilities, i.e., the facilities
with which KGOF will operate when it is constructed, shows
that the Grade B contour will fall more than 10 miles short of
Carlsbad. The map is attached hereto as KFMB-TV's Exhibit I.
Thus carriage of KGOF is not authorized under Section 76.61
(e)(5) as incorporated in Section 76.63(a).
Nor is the carriage of KGOF authorized under any
other rule. Presumably KGOF will be an independent station;
Daniels is already authorized to provide subscribers at
Carlsbad with more than the full complement of independent
signals permitted on a CATV system in one of the second-fifty
major television markets. The fact that some of those distant
independent signals may be grandfathered for carriage in
Carlsbad does not mean that once the full complement of signals
and the quota, of additional "bonus" distant independent signals
- 3 -
the system is permitted to carry under Section 76.63
base been filled, the CATV can add additional distant in-
dependents without seeking and justifying a waiver of the
Rules. -/
For the foregoing reasons, the above-captioned
application for Certificate of Compliance for a new CATV
system at Carlsbad, California should be DENIED.
RESPECTFULLY SUBMITTED,
MIDWEST TELEVISION, INC.
(KFMB-TV)
By
Michael S, Home-
Geoffrey ^entley
•Covington 4/Burling"
888 16th'Street, N. W.
Washington, D. C. 20006
Its Attorneys
Prepared March 22, 1978
for filing on or before
March 30, 1978
I/ In several cases the Commission has held that §76.61(b),
o~r its smaller television market counterpart, §76.59(b),
controls the number of distant independent signals permitted,
even though one or more of the independent signals is carried
pursuant to the grandfathering provisions of §76.65 and not
pursuant to §76.61(a). See, T-C Industries, Inc., 61 FCC 2d
462, 38 RR 2d 1031 (1976); Tower Communications, Inc., 53 FCC
2d 397, 33 RR 2d 1663 (1975); State TV Cable, 46 FCC 2d 1190,
30 RR 2d 338 (1974).
KFMB-^V'S EXHIBIT I
'IQRANGE COUNTV
HUNTINCtON 6EACH
[GRADE Br
PROPOSED COVERAGE
1019 FT ABOVE AVERAGE TERRAIN
5000 KW MAXIMUM POWERHAMMETT ft EDISON. INC.
CONSULTING ENGINE ERS
SAN FRANCISCO
STATION KGOF
CHANNEL 56
ANAHEIM. CALIFORNIA
...v UUrLIUMIL KFMB-TV's EXHIBIT I
r'CC Form J01
February 1977
Section I
proved by GAO
u-I80227(R0174)
UNITED STATE* OF AMERICA
FEDERAL COMMUNICATIONS COMMISSION
Application for Author! ly to Construct a Now Broadcast
Station or Make Chang** In on Existing Broadcast Station
INSTRUCTIONS
A. This form Is to be used In applying for authority to construct • new
standard, commercial FM, or television broadcast station or to Jnalce " ^
changes in existing broadcast stations. This form consists a/ this part,
Section I, snd the following sections: ... '••** ""
Section II, Legal Qualifleatlona of Broadcast Applicant
Section III, Financial Qualifications of Broadcast Appltcan
Section IV-A, Statement of Program Service of Broa*j»s) .
(AM-FM) - 01-V
Section IV-B, Stntement of Program Service of Broadcast Applicant(TV) • i p,.c.
Stnndard Broadcast Engineering Date
FM Broadcast Engineering Data _. Q^
Television Broadcast Engineering Data
Antenna and Site Information
Equal Employment Opportunity Program
Section V-A.
Section V-8,
Section V-C,
Section V-G,
Section Vl^
1. Prepare'three copies of this form and all exhibits. Sign one copy of
Section I. Prepare one additional copy (a total of four) of Section V-O
md associated exhibits, and one additional copy a total of four) of Sec-
ion V-C and associated exhibits. File all the above with Federal Com-
unlcallonrlCommlsslon. Washington. D.C. 205S4. A SEPARATE AND
COMPLETE APPLICATION (IN TRIPLICATE) MUST BE FILED FOR
EACH AM STATION, EACH FM STATION, AND EACH TV STATION.
C Number exhibits serially In the space provided In the body of the
form and list each exhibit In the space provided on page 2 of this Sec-
tion. Show date of preparation of each exhibit, antenna pattern, and
map, and show date when each photograph was taken.
3. The name of the applicant stated In Section I hereof shall be the
exact corporate name. It • corporation; If a partnership, the names of alt
partners and the name under which the partnership doea business; if sn
unincorporated association, the name of an executive officer, hla office,
and the name of the association. In other Sections of the form the name
alone will be sufficient for Identification of the applicant.
E. Information called for by this application which is already on file
with the Commission (except thai called tor In Section fff which la more
than 90 days old and In Section V-C) need not be reflled in this applica-
tion provided (1) the Information Is now on file In another application or
FCC Form filed by or on behalf of this applicant; (2) the Information Is
Identified FULLY by reference to the file number (If any) the FCC form
number, and the filing date of the application or other form containing the
information'and the page or paragraph referred to, and (3) after making
the reference, the applicant atates: "No change since date of filing."
Any such reference will be considered to Incorporate into this application
jrll information, confidential or otherwise, contained In the application or
other form referred la. The incorporated application or other form wilt
thereafter. In Its entirety, be open to the public. (See Section 1.526 of
the Commission's Rules and Regulations, "Records to be maintained
locally for public Inspection by applicants, permittees, and licensees.")
F. This application shall be personally signed by the applicant, if the
applicant is an Individual; by one of the partners, if the applicant Is a
partnership; by an officer, If the applicant is a corporation; by a member
who la sn officer. If the applicant Is an unincorporated association; by
such duly elected or appointed officials as may be competent to do so
under the lawa of the applicable jurisdiction, the applicant Is an eligi-
ble government entity; or by the applicant's attorney In caae of the
applicant's physical disability or of his absence from, the United States.
The attorney shall. In the event he signs for the applicant, separately
set forth the reason why the application is not signed by the applicant.
In addition. If any matter Is stated on the basis of the attorney's belief
only (rather than his knowledge), he shall separately set forth his rea-
sons for believing that such statements are true.
G. Before filling out this application, the applicant should familiarize
himself with the Communications Act of 1934. as amended. Parts I, 2,
17. and 73 of the Commission's Rules and Regulations.
H. BE SURE ALL NECESSARY INFORMATION IS FURNISHED AND
ALL PARAGRAPHS ARE FULLY ANSWERED. IF ANY PORTIONS OF
THE APPLICATION ARE NOT APPLICABLE. SPECIFICALLY SO
STATE. DEFECTIVE OR INCOMPLETE APPLICATIONS MAY BB
RETURNED WITHOUT CONSIDERATION.
F0i< CO SSI ON U5t ONLY
File Me.
1. Name of applicant (S«e Instruction O)
Golden Orange Broadcasting Co., Inc.
Street Address
6531 Westminster Avenue
City
Westminster
State
CA
XtP Code
92683
Name and address of person t? whom communications should be
sent, if different from item 1
Name
Calvin Brack
Street Address
6531 Westminster Avenue
City
Westminster CA
ZIP Code
92683
3(a). Purpose of sppllcatloi (Put "X" In appropriate box)
(TNew Station [V^Major change), in existing
station facilities.
l~~l Minor change In existing
station facilities.
(fc). If this application Is for a change In existing facilities, complete
Section I plus sny other Sections necesssry to show all substan-
tial changes in information previously filed with the Commission,
and Indicate below the Sections completed snd filed with this.
application.
x
Section II
Section III
Section IV-A
Section IV-B
X
Section V-A
Section V-B
Section V-C
Section V-G
Section VI
4. Requested facilities
Type of station (as Standard, FM. Television)
Television
Hours of operation
Unlimited X
Daytime only
Limited
Sharing with(Specify Stations)Other(Specify)
Station location
CityAnaheim,State
California
5. In the space below refer to Information already on file|with the Com-
mission which. In accordance with Instruction E, may'b* Incorpor-ated in this application by proper reference.
File or Form No. snd Dale
>
Section No.Paragraph No.
(All previous editions of this form are cancelled..)
COUNTY OF SAN DIEGO
STATE OF CALIFORNIA
AFFIDAVIT
Robert L. Myers, being first duly sworn, deposes
and says:
1. I am Vice-President and General Manager of
KFMB-TV, San Diego, California.
2. I have read the foregoing "Objection to
Application" relating to CATV in Carlsbad, California.
3. Except as to matters of which official notice
may be taken or which are supported by other sources, I
have personal knowledge of the facts stated in that plead-
ing and.those facts are true and correct to the best of my
personal knowledge and belief
Robert L. Myers
Subscribed and sworn to before me, a Notary
Public, this 3.% day of March, 1978.
My Commission expires;
TmmmmmiiitiiiiiiimimiluilumiiiiiimiiiimiiiiiiiiimMmimiiiiiiiiiiminiiiii
OFFICIAL SEAL |
J. M. BRADLEY |
NOTARY PUBLIC CALIFORNIA |
PRINCIPAL OFFICE IN |
SAN OIEGO COUNTY !
My Commission Expires Dec. 26, 1981 |
uiiiMniniiMiMiuuiiiiiiiiiiiiijtiiniuiiiiiiiiiiiuoiiitMiiiHiiiiiiniiHiiiiiimmiiimiiiiimiiiiitit
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of March,
1978, I have caused copies of the foregoing "OBJECTION TO
APPLICATION" to be mailed, postage prepaid, to the following:
Warren C. Zwicky, Esq.
Storer Broadcasting Company
1220 - 19th Street, N.W.
Washington, D. C. 20036
(counsel for KCST-TV)
Koteen & Burt
The Connecticut Building
1150 Connecticut Avenue, N.W.
Washington, D.C. 20036
(counsel for KGTV)
Norman E. Jorgenson, Esq.
1926 Eye Street, N.W.
Washington, D. C. 20006
(counsel for KJOG-TV
and KPBS-TV)
Haley, Bader & Potts
1739 M Street, N.W.
Suite 700
Washington, D. C. 20036
(counsel for XETV)
Station XEWT-TV
Televisora de Calimex, S.A.,
Post Office Box 44-K
San Ysidro, California 92073
McKenna, Wilkinson & Kittner
1150 - 17th Street, N.W.
Washington, D. C. 20036
(counsel for KABC-TV
and KMEX-TV)
Cole, Zylstra & Raywid
2011 Eye Street N.W.
Washington, D. C. 20006
(counsel for applicant)
Hogan & Hartson
811 Connecticut Ave. N.W.
Washington, D.C. 20006
(counsel for KCOP)
Pierson, Ball & Dowd
1000 Ring Building
Washington, D. C. 20036
(counsel for KHJ-TV)
Cohn & Marks
1920 L Street, N.W.
Washington, D. C. 20036
(counsel for KLCS)
Station KNBC
National Broadcasting Co.
3000 W. Alameda Avenue
Burbank, California 91523
Station KNXT
CBS, Inc.
6121 Sunset Blvd
Los Angeles, California
Dow, Lohnes & Albertson
1225 Connecticut Avenue, N.W.
Suite 500
Washington, D. C. .20036
(counsel for KTLA and KSCI)
Thomas J. Dougherty, Esq.
Metromedia, Inc.
5151 Wisconsin Avenue, N.W.
Washington, D.C. 20016
(counsel for KTTV)
Cahill, Kaswell & Nerenbery
2030 M Street, N. W.
Washington, D. C. 20036
(counsel for KBSC-TV)
James A Gammon, Esq.
1925 K Street, N.W.
Washington, D. C. 20006
(counsel for KLXA-TV)
Cohen & Berfield
1129 - 20th Street, N.W.
Washington, D.C. 20036
(counsel for KHOF-TV)
- 2 -
Arent, Fox, Kintner
Plotkin & Kahn
1815 H Street, N.W.
Washington, D. C. 20036
(counsel for KVST-TV)
City Council
City of Carlsbad
Carlsbad, California 92008
Superintendent of Schools
City of Carlsbad
Carlsbad, California 92008
Assistant Chief
Department of General Services
Communications Division
2025 - 19th Street
Sacramento, California 95818