HomeMy WebLinkAboutMarch 2001 - September 2002ORDINANCES
2002
NO. TITLE ADOP'T'ED
487 ORDINANCE AUTHORIZING AN AMENDMENT
TO THE CONTRACT BETWEEN THE CITY OF
MORRO BAY AND THE BOARD OF ADMINISTRATION
OF THE CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM (3% at 50 FULL FORMULA
FOR LOCAL POLICE MEMBERS ONLY) 04 -08 -02
488 ORDINANCE ADDING CHAPTER 14.75 TO THE CITY
OF MORRO BAY'S MUNICIPAL CODE REQUIRING
MANDATORY CONSTRUCTION AND DEMOLITION
DEBRIS RECYCLING PROGRAM 04 -22 -02
489 ORDINANCE ADOPTING AN AMENDMENT TO
SECTION 2.20.010 OF THE MORRO BAY
MUNICIPAL CODE (COUNCIL COMPENSATION) 06 -10 -02
490 ORDINANCE AMENDING CHAPTER 12.08 OF THE
MORRO BAY MUNICIPAL CODE "CITY TREE
REGULATIONS" 07 -22 -02
491 ORDINANCE AUTHORIZING AN AMENDMENT TO
THE CONTRACT BETWEEN THE CITY OF MORRO
BAY AND THE BOARD OF ADMINISTRATION OF
THE CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT
SYSTEM (MILITARY SERVICE CREDIT FOR RETIRED
PERSONS — POLICE) 08 -12 -02
492 ORDINANCE AMENDING SECTION 8.04.010 OF THE
MORRO BAY MUNICIPAL CODE (HEALTH CODE) 08 -26 -02
493 ORDINANCE AMENDING SECTION 17.68.070(L)
OF THE MORRO BAY MUNICIPAL CODE
(POLITICAL CAMPAIGN SIGNS) 09 -09 -02
494 VOID
NO.
ORDINANCES
TITLE
2001
485 ORDINANCE SUPERSEDING CHAPTER 5.30 OF THE
MORRO BAY MUNICIPAL CODE REGARDING CABLE
TELEVISION
ADOPTED
03- -26 -01
486 ORDINANCE ANNOUNCING FINDINGS AND ADOPTING
AMENDMENTS TO THE ZONING ORDINANCE TO
REGULATE DEVELOPMENT STANDARDS FOR BUILDING
SETBACKS AND LOT COVERAGE IN THE BEACH TRACTS 03 -26 -01
ORDINANCE NO. 493
AN ORDINANCE OF THE CITY OF MORRO BAY
AMENDING SECTION 17.68.070(L) OF CHAPTER 17.68
OF THE MORRO BAY MUNICIPAL CODE
(POLITICAL CAMPAIGN SIGNS)
THE CITY COUNCIL
CITY OF MORRO BAY, CALIFORNIA
The City Council of the City of Morro Bay does ordain Section 17.68.070(L) -
Exceptions to Political Campaign Signs be amended as follows:
WHEREAS, Section 17.68.070(L) of the Morro Bay Municipal Code governs the
City's codes related to political campaign signs; and
WHEREAS, the City of Morro Bay needs to update Section 17.68.070(L) to
ensure that it meets all constitutional requirements, while protecting the safety of its
citizens and enhance the City's aesthetics; and
WHEREAS, following the Public Hearing, and upon consideration of the
testimony of all persons, the City Council of the City of Morro Bay does ordain Section
17.68.070(L) - Exceptions to Political Campaign Signs be amended as follows:
Section 17.68.070(L): Political Campaign Signs.
L. Political Campaign Signs. Political campaign signs not to exceed
steerx sixty-four square feet in area per site shall be permitted only on
private property. Sj)jp� AB
-,44p,%-pefied net to exeeed days pfeeeding--aii
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INTRODUCED at the regular meeting of the City Council held on the26th day
of August 2002, by motion of
Peirce — and seconded by Peters
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Morro Pay, onthe 9th day ofseptembe4 2002 lay the following vote to wit:
AYES: Anderson, Peirce, Peters
NOES: Crotzer
ABSENT: Elliott
ABSTAIN: None
ON, MAYOR
ATTEST:
BRIDGETT�BAUER, CITY CLERK
APPROVED AS TO FORM:
ROBERT SCHULT2, 5Y ATTORNEY
ORDINANCE NO. 492
AN ORDINANCE OF THE CITY OF MORRO BAY
TO AMEND SECTION 8.04.010 OF CHAPTER 8.04 OF THE
MORRO BAY MUNICIPAL CODE
THE CITY COUNCIL
CITY OF MORRO BAY, CALIFORNIA
The City Council of the City of Morro Bay does ordain Section 8.04.010 —
Adoption of County Code be amended as follows:
WHEREAS, Section 8.04.010 of the Morro Bay Municipal Code adopts the San
Luis Obispo County Health Codes as its own; and
WHEREAS, the County of San Luis Obispo has recently amended its Health
Code; and
WHEREAS, the City of Morro Bay needs to amend Section 8.04.010 to reflect
the County's recent update; and
WHEREAS, following the Public Hearing, and upon consideration of the
testimony of all persons, the City Council of the City of Morro Bay does ordain Section
8.04.010 — Adoption of County Code be amended as follows:
Section 8.04.010: Adoption of County Code.
Title 8, Chapter 8.04, Sections 8.04.010 through 8.04.400, Health and
Sanitation Code, Food and Drink Establishments, as amended, being a
portion of the health code of the County of San Luis Obispo are approved
and adopted as the health code of the City of Morro Bay. All reference in
the county code to the health officer of the county and to the board of
supervisors shall refer to the health officer of the City of Morro Bay and
the City Council of Morro Bay.
INTRODUCED at the regular meeting of the City Council held on the 121x' day
of August 2002, by motion of Councilmember Elliott and seconded by Councilmember
Peirce.
Ordinance No. 492
Page Two
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Morro Bay, on the 26th day of August , 2002 by the following vote to wit:
AYES: Anderson, Elliott, Peirce, Peters
NOES: None
ABSENT: Crotzer
ABSTAIN: None
ATTEST:
BRIDGETVPAUER, CITY CLERK
WIVOWIMIGAM0113 M11KEUKE&VA
ROBERT SCHULTZ, C17,fTORNEY
ORDINANCE NO. 491
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF MORRO BAY AUTHORIZING AN AMENDMENT TO
THE CONTRACT BETWEEN THE CITY COUNCIL OF THE
CITY OF MORRO BAY AND THE BOARD OF ADMINISTRATION
OF THE CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM
(MILITARY SERVICE CREDIT FOR RETIRED PERSONS - POLICE)
THE CITY COUNCIL
City of Morro Bay, California
The City Council of the City of Morro Bay does ordain as follows:
Section 1.
That an amendment to the contract between the City Council of the City of Morro Bay and the
Board of Administration, California Public Employees' Retirement System is hereby authorized,
a copy of said amendment being attached hereto, marked Exhibit, and by such reference made a
part hereof as though herein set out in frill.
Section 2.
The Mayor of the City Council is hereby authorized, empowered, and directed to execute said
amendment for and on behalf of said Agency.
Section 3.
This Ordinance shall take effect 30 days after the date of its adoption, and prior to the expiration
of 10 days from the passage thereof shall be published at least once in the Sun - Bulletin, a
newspaper of general circulation, published and circulated in the City of Morro Bay and
thenceforth and thereafter the same shall be in full force and effect.
INTRODUCED at a meeting of the City Council of Morro Bay held on the 8th day of
July, 2002 by motion of Councihnember Crotzer , seconded by Councilmennber
Elliott
Ordinance No. 491
Page Two
PASSED AND ADOPTED on the 12th day of August, 2002 by the following vote:
AYES: Anderson, Crotzer, Elliott, Peirce, Peters
NOES: None
ABSENT: None
d
n, Mayor
ATTEST:
Bridgett BaQ-, City Clerk
APPROVED AS TO FORM:
Robert W. SChUltZ, C Attorney
CAPERS
California
Public Employees' Retirement System
EXHIBIT
.A �� \1 .�.�__�� IV.�.
Between the
Board of Administration
California Public Employees' Retirement System
and the
City Council
City of Morro Bay
The Board of Administration, California Public Employees' Retirement System, hereinafter
referred to as Board, and the governing body of the above public agency, hereinafter referred
to as Public Agency, having entered into a contract effective July 1, 1965, and witnessed
June 1, 1965, and as amended effective August 15, 1981, November 19, 1983, January 7,
1989, June 24, 1989, June 22, 1991, June 10, 1994, June 9, 1998, October 17, 1998, April
13, 2000 and June 22, 2002 which provides for participation of Public Agency in said System,
Board and Public Agency hereby agree as follows:
A. Paragraphs 1 through 14 are hereby stricken from said contract as executed effective
June 22, 2002, and hereby replaced by the following paragraphs numbered 1 through
14 inclusive:
All words and terms used herein which are defined in the Public Employees'
Retirement Law shall have the meaning as defined therein unless otherwise
specifically provided. "Normal retirement age" shall mean age 55 for local
miscellaneous members and age 50 for local safety members.
2. Public Agency shall participate in the Public Employees' Retirement System
from and after July 1, 1965 making its employees as hereinafter provided,
members of said System subject to all provisions of the Public Employees'
Retirement Law except such as apply only on election of a contracting agency
and are not provided for herein and to all amendments to said Law hereafter
enacted except those, which by express provisions thereof, apply only on the
election of a contracting agency.
PLEASE DO NOT SIGN "EXHIBIT ONLY "
3. Employees of Public Agency in the following classes shall become members of
said Retirement System except such in each such class as are excluded by law
or this agreement:
a. Local Fire Fighters (herein referred to as local safety members);
b. Local Police Officers (herein referred to as local safety members);
C. Employees other than local safety members (herein referred to as local
miscellaneous members).
4. In addition to the classes of employees excluded from membership by said
Retirement Law, the following classes of employees shall not become members
of said Retirement System:
a. ELECTED OFFICIALS;
b. APPOINTIVE COMMISSIONS; AND
C. PERSONS COMPENSATED ON AN HOURLY BASIS.
5. This contract shall be a continuation of the benefits of the contract of the Morro
Bay Fire District, hereinafter referred to as "Former Agency ", pursuant to
Section 20508 of the Government Code, Former Agency having ceased to exist
and succeeded by Public Agency on July 1, 1965. Public Agency, by this
contract, assumes the accumulated contributions and assets derived therefrom
and liability for prior and current service under Former Agency's contract with
respect to the Former Agency's employees. Legislation repealed Section
20508, Statutes of 1949, effective January 1, 1988.
6. The percentage of final compensation to be provided for each year of credited
prior and current service as a local miscellaneous member shall be determined
in accordance with Section 21354 of said Retirement Law (2% at age 55 Full).
7. The percentage of final compensation to be provided for each year of credited
prior and current service as a local fire member shall be determined in
accordance with Section 21362 of said Retirement Law (2% at age 50 Full).
8. The percentage of final compensation to be provided for each year of credited
prior and current service as a local police member shall be determined in
accordance with Section 21362.2 of said Retirement Law (3% at age 50 Full).
9. Public Agency elected and elects to be subject to the following optional
provisions:
a. Section 21573 (Third Level of 1959 Survivor Benefits) for local police
members only.
b. Section 20965 (Credit for Unused Sick Leave).
PLEASE DO NOT .LION "EXHIBIT ONLY"
C. Section 20042 (One -Year Final Compensation) for local safety members
only.
d. Section 21024 (Military Service Credit as Public Service), Statutes of
1976 for local police members and local miscellaneous members only.
e. Section 21574 (Fourth Level of 1959 Survivor Benefits) for local fire
members only.
Section 20423 ( "Local Safety Member" shall include Harbor or Port
Police Officers as described in Government Code Section 20423).
g. Section 21027 (Military Service Credit for Retired Persons) for local
police members only.
10. Public Agency, in accordance with Government Code Section 20790, ceased to
be an "employer" for purposes of Section 20834 effective on August 15, 1981.
Accumulated contributions of Public Agency shall be fixed and determined as
provided in Government Code Section 20834, and accumulated contributions
thereafter shall be held by the Board as provided in Government Code Section
20834.
11. Public Agency shall contribute to said Retirement System the contributions
determined by actuarial valuations of prior and future service liability with
respect to local miscellaneous members and local safety members of said
Retirement System.
12. Public Agency shall also contribute to said Retirement System as follows:
a. Contributions required per covered member on account of the 1959
Survivor Benefits provided under Section 21573 of said Retirement Law.
(Subject to annual change.) In addition, all assets and liabilities of Public
Agency and its employees shall be pooled in a single account, based on
term insurance rates, for survivors of all local police members.
b. Contributions required per covered member on account of the 1959
Survivor Benefits provided under Section 21574 of said Retirement Law.
(Subject to annual change.) In addition, all assets and liabilities of Public
Agency and its employees shall be pooled in a single account, based on
term insurance rates, for survivors of all local fire members.
C. A reasonable amount, as fixed by the Board, payable in one installment
within 60 days of date of contract to cover the costs of administering said
System as it affects the employees of Public Agency, not including the
costs of special valuations or of the periodic investigation and valuations
required by law.
d. A reasonable amount, as fixed by the Board, payable in one installment
as the occasions arise, to cover the costs of special valuations on
account of employees of Public Agency, and costs of the periodic
investigation and valuations required by law.
13. Contributions required of Public Agency and its employees shall be subject to
adjustment by Board on account of amendments to the Public Employees'
Retirement Law, and on account of the experience under the Retirement
System as determined by the periodic investigation and valuation required by
said Retirement Law.
14. Contributions required of Public Agency and its employees shall be paid by
Public Agency to the Retirement System within fifteen days after the end of the
period to which said contributions refer or as may be prescribed by Board
regulation. If more or less than the correct amount of contributions is paid for
any period, proper adjustment shall tie made in connection with subsequent
remittances. Adjustments on acco nKof errors in contributions required of any
employee may be made by dirayments between the employee and the
Board.
B. This amendment shalt be effertiv�0\
the day of�—.
BOARD OF ADMINISTRATIO \& CITY COUNCIL
PUBLIC EMPLOYEES' RF,° ENT SYSTEM CITY OF MORRO B 6
BY BY
KENNETH W. ZION, CHIEF PRE�S OFFICER
ACTUARIAL &IMPLOYER SERVICES DIVISION C
PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Witness Date
Attest:
Clerk
AMENDMENT
PERS- CON -702A (Rev. 8196)
ORDINANCE NO. 490
AN ORDINANCE OF THE CITY OF MORRO
BAY, CALIFORNIA AMENDING CHAPTER 12.08
OF THE MORRO BAY MUNICIPAL CODE
"CITY TREE REGULATIONS"
THE CITY COUNCIL
CITY OF MORRO BAY, CALIFORNIA
WHEREAS, the City Council adopted Ordinance No. 45 in 1966, the original City
Tree ordinance and amended said ordinance in 1995 and 1997; and
WHEREAS, the City Council held a public hearing on an appeal of a Planning
Commission's approval of a request to remove four city street trees from the public right of way;
and
WHEREAS, the City Council upheld the appeal and denied the request to remove the
four trees from the public right of way; and
WHEREAS, the City Council referred the City Tree Ordinance to the Public Works
Advisory Board (PWAB) and the Planning Commission with direction to amend the ordinance to
address the inconsistencies in the ordinance relative to the tree removal process; and
WHEREAS, the PWAB and the Planning Commission held hearings on the proposed
amendments and is recommending that Chapter 12.08 "City Tree Regulations" be amended; and
WHEREAS, the PWAB and the Planning Commission recommended amendments to
various sections of the City Tree Regulations relative to the provision of adequate public
noticing, specifying objective requirements to remove public trees, and adding a provision that
indicates that the protection of "private views" is not an appropriate finding to remove a public
tree; and
WHEREAS, City Council held a public hearing on May 28, 2002 and directed that
Ordinance No. 490 be scheduled for introduction at the regularly scheduled City Council
meeting of June 10, 2002,
NOW, THEREFORE, the City Council of the City of Morro Bay does hereby ordain
that Section 12.08 of the Morro Bay Municipal Code be amended as contained in "Exhibit A ",
and also attached is the Master Tree List contained in "Exhibit B."
Ordinance No. 490
Page Two
INTRODUCED at a regular meeting of the City Council of Morro Bay, held on the 8th
day of July, 2002, by motion of Councilmeniber Crotzer, seconded by Councilmember Peters.
PASSED AND ADOPTED on the 22nd day of July, 2002, by the following vote:
AYES: Anderson, Crotzer, Peters
NOES: Elliott, Peirce
ABSENT: None
&vM1"
Bridgett Ba�y r, City Clerk
APPROVED AS TO FORM:
City Attorney
Chapter 12.08
CITY TREE REGULATIONS
Sections:
12.08.010
Purpose.
12.08.020
Definitions.
12.08.030
Enforcing authority.
12.08.040
Master tree list.
12.08.050
Powers of director of public services.
12.08.060
Tree care, planting, removing and replacement.
12.08.070
Tree removal by city for cause.
12.08.080
Appeal of the determination of the director of public services.
12.08.090
Tree removal cost and replacement.
12.08.100
Replanting tree after removal.
12.08.110
Utility permit to trim, brace or remove trees.
12.08.120
Business permit to trim, brace or remove trees
12.08.130
Tree destruction or attachments prohibited.
12.08.140
Inspection by director of public services.
* For statutory provisions regarding municipal programs of street tree plantings, see Gov. code § 40401.
12.08.10 Purpose.
It is in the best interest of the city and of the citizens of Morro Bay that a
comprehensive plan for the planting and maintenance of trees in, on or within the public
right -of -way (RIW) within the city should be established. This chapter is adopted for the
purpose of developing and providing for such a plan and program, and for the purpose of
establishing rules and regulations relating to the planting, care and maintenance of such
trees. (Ord. 45 § 1 (part), 1966: prior code § 9501)
12.08.20 Definitions.
A. "Director of public services" means the director of public services of the city.
B. "Owner" includes the legal owner of real property fronting on any street of the
city, and any lessee of such owner.
C. "Person" means an individual, firm, an association, a corporation, a
copartnership, and the lessees, trustees, receivers, agents, servants and employees of any
such person.
D. "Planning commission" means the planning commission of the city.
E. "Public streets" or "streets" includes all roads, streets, avenues, boulevards,
alleys, parkways, sidewalks, walkways and public rights -of -way, or any portion thereof,
of the city.
F. "Drip line" is the shape drawn on the soil or ground surface around a tree
which is directly under its outermost branch tips, exclusive of the influence of mechanical
trimming. (Ord. 436 § 2 (part), 1994: Ord. 45 § I (part), 1966: prior code § 9502)
12.08.30 Enforcing authority.
The director of public services or his duly authorized representative shall be
charged with the enforcement of this chapter. (Ord. 45 § 1 (part), 1966: prior code §
9504)
12.08.040 Master tree list.
The planning commission is charged with the duty of determining the types and
species of trees suitable and desirable for planting within the city, and the areas in which
such trees shall be planted. Such determination shall be made by the planning
commission who may consult with those familiar with the subject of such plantings, such
as landscape architects, arborists, nurserymen and park executives. After such
determination has been made, the planning commission shall report its findings in writing
to the city council. When approved by the city council, said report, to be known as the
"Master Tree List," shall be placed on file in the office of the city clerk, and shall
thereafter be the official determination of the planning commission. Revisions or
changes in the Master Tree List may be made from time to time by the planning
commission, in the manner described in this section for the development, approval and
filing of the original Master Tree List.
All trees planted in the public rights- of-way of the city after the filing of the
original Master Tree List must be specified on the Master Tree List, unless a written
permit from the director of public services shall have first been obtained to deviate from
said list. Such permit may be granted by the director of public services upon the showing
of evidence that an alternate tree would best serve the public interest. (Ord. 225 § 50,
1982; Ord. 45 § 1 (part), 1966: prior code § 9505)
12.08.050 Powers of director of public services.
The director of public services, or his duly authorized representative, shall have
jurisdiction and control of the planting, setting out, location and placement of all trees in
the public rights-of-way of the city, and shall likewise have supervision, direction and
control of the care, trimming, removal, relocation and replacement thereof. (Ord. 45 § 1
(part), 1966: prior- code § 9506)
12.08.60 Tree care, planting, removing and replacement.
No person other than the director of public services or his duly authorized agent
or deputy shall cut, trim, prune, spray, brace, plant, move or remove, or replace any tree
in any public right-of-way (R/W) within the city, or shall cause the same to be done,
unless and until a written permit to do so shall have been first obtained fi•om the director
of public services. Any such permit may be declared void by the director of public
services if its terms are violated.
In addition to any measures allowable by the laws of the state of California, any
person, persons, corporations or similar parties which perform, direct or otherwise cause
to be performed, any trimming, cutting, pruning, spraying, moving or removing of any
tree, or portions thereof, within the public right -of -way, without having first obtained a
written permit from the director of public services, or failing to comply with any terms of
the permit, shall pay to the city a fee based upon tree valuation criteria established by the
International Society of Arboriculture (ISA). This fee shall be calculated by the director
of public services based upon the most current ISA criteria and shall further acknowledge
the environmental benefits afforded by the urban forest.
2
Any and all fees collected by the city from the enforcement of the requirements of
this section shall be deposited and used for the sole and exclusive purposes of
propagation, maintenance, and nurturing of trees within the public rights -of -way and
parks of the city. (Ord. 436 § 2 (part), 1994; Ord. 45 § 1 (part), 1966: prior code § 9507)
12.08.070 Tree removal by city for cause.
No tree shall be removed from a public right -of -way unless it interferes with the
necessary improvement of the public right -of -way, the installation of public utilities or is
A hazard to person or property outside the drip line of the tree at maturity, or creates such
a condition as to constitute a hazard or an impediment to the progress or vision of anyone
traveling on or within the public right -of -way, If, in the opinion of the director of public
services, a tree is determined to meet the above criteria, the tree shall be removed and a
new tree planted at the same location or in close proximity to the location where the tree
was removed. The replacement tree shall be of the type as specified in the Master Tree
List for that particular location, and the cost of removal and replacement shall be at the
expense of the city. Except in the case of an emergency as determined by the Director of
Public Services, no tree shall be trimmed or removed if there is evidence of nesting
raptors (a bird of prey) in the tree. The nesting season is generally February through
June. (Ord. 436 § 2 (pant), 1994: Ord. 45 § 1 (part), 1966: prior code § 9508)
12.08.080 Appeal of the determination of the director of public services.
Any person aggrieved by the determination of the director of public services may
file an appeal to the planning commission following the payment of the applicable fee. A
public hearing shall be held following public notice of property owners within 300 feet
per See.17/60.110. Said public notice shall also include posting of the subject tree(s)
with two placards that are clearly visible indicating the purpose, time, date and location
of the hearing.
The appellant shall submit a report prepared by a Certified Arborist or Landscape
Architect describing the condition of the tree(s) and the reason(s) for the removal of the
trees) from the public right of way. Trees shall not be removed solely for the
preservation of private views.
A tree(s) shall not be removed unless authorized by the proper review authority
within the scope of a construction project. Said removal shall be appropriately mitigated
on a not less than two -to -one tree replacement. Said tree(s) shall be maintained in a
healthy, live condition for a period of 5 (five) years.
Following the public hearing, the planning commission shall grant or deny the
appeal. The granting of the appeal by the planning commnission may be subject to
conditions deemed appropriate to mitigate the impacts to the community and
neighborhood due to the removal of the tree(s). Any person aggrieved by the decision of
the planning commission may file an appeal to the city council. The city council shall
then conduct a public hearing under the same provisions as stated above.
12.08.090 Tree removal cost and replacement.
In the event the planning commission or city council grants an appeal to remove a
tree(s) per Sec. 12.08.080, all costs of the removal shall be at the expense of the
appellant. All street surfaces, curbs, gutters, sidewalks and other public improvements
damaged by the removal of said tree(s) shall be repaired and/or replaced by the property
owner in a condition acceptable to the director of public services. The director may
require a performance bond in an amount sufficient to cover the costs of repair and
replacement of the public improvements per the adopted city standards.
12.08.100 Replanting tree after removal.
Any person removing a tree under the provisions of Sections 12.08.080 and
12.08.090 shall, at their own expense and within thirty days after such removal, plant
another tree of the type and species specified in the Master Tree List for such area in a
location designated by the director of public services. If such person fails to plant the
replacement tree or fails to comply with the requirements of the planning commission or
this section within the time specified, the director of public services may perform such
tasks as are required, and the cost thereof shall be assessed to such person. This remedy
is in addition to all other measures, including punitive measures, available to city arising
out of such noncompliance. (Ord. 436 § 2 (part), 1994: Ord. 45 § 1 (part), 1966: prior
code § 9511)
12.08.110 Utility permit to trim, brace or remove trees.
Any person doing business as a public utility subject to the jurisdiction of the
Public Utilities Commission of the state and any constituted public agency authorized to
provide, and providing utility service, shall be given a permit from the director of public
services valid for one year from the date of issuance, permitting such person to trim,
brace, remove or perform such other acts with respect to trees growing adjacent to the
public streets of the city, or which grow upon private property to the extent that they
encroach upon such public streets as may be necessary to comply with the safety
regulations of the commission and as may be necessary to maintain the safe operation of
its business. See Master Fee Schedule. (Ord. 225 § 52, 1982; Ord. 45 § 1 (part), 1966:
prior- code § 9512)
12.08.120 Business permit to trim, brace or remove trees.
No person shall be entitled to apply for a permit under Section 12.08.070 other
than an owner of property abutting the portion of the street upon which a tree is located
and on the same side of the centerline of the street as the tree which is the subject of the
permit application or a public utility. No person may perform any act pursuant to a
permit issued under Section 12,08. 070 except a person whose principal business is tree
surgery, trinuning or maintenance and who, in the opinion of the director of public
services, is qualified for such business, and who has obtained a permit to carry on such
business in the city from the director of public services. Prior to the issuance of such a
permit, a valid business license must be secured from the city clerk. Permits issued
pursuant to this section may be granted for a period of one year from the date of issuance.
See Master Fee Schedule. (Ord. 436 § 2 (part), 1994: Ord. 225 § 53, 1982; Ord. 45 § 1
(part), 1966: prior code § 9513)
12.08.130 Tree destruction or attachments proldbited.
It is unlawful for any person to break, injure, deface, mutilate, kill or destroy any
tree or set fire or permit any fire to burn where such fire or the heat thereof will injure
any portion of any tree in any public right -of -way in the city. Nor shall any person place,
apply, attach or keep attached to any such tree or to the guard or stake intended for the .
protection thereof any wire, sign, paint or any other substance, structure, thing or device
of any kind or nature whatsoever without having first obtained permission from the
4
Director of Public Services. See Master Fee Schedule. (Ord. 225 § 54, 1982; Ord. 45 § 1
(part), 1966: prior code § 9514)
12.08.140 Inspection by director of public services.
The director of public services may inspect any tree within or overhanging any
public right-of-way in the city to determine whether the same or any portion thereof is in
such a condition as to constitute a hazard or impediment to the progress or vision of
anyone traveling on such public street or within the public R/W. Any tree or part thereof
growing upon private property, but overhanging or interfering with the use of any street
that, in the opinion of the director of public services, endangers the life, health, safely, or
property of the public shall be declared a public nuisance. If the owner of such private
property does not correct or remove such nuisance within thirty days after receipt of
written notice thereof from the director of public services, he shall cause the nuisance to
be corrected or removed and the cost shall be assessed to such owner.
Nothing contained herein shall be deemed to impose any liability upon the city, its
officers, or employees, nor to relieve the owner of any private property from the duty to
keep any tree upon his property or under his control in such a condition as to prevent it
from constituting a public nuisance as defined in this chapter. (Ord. 45 § I. (part), 1966:
prior code § 9515)
ORDINANCE NO. 489
AN ORDINANCE OF THE CITY OF MORRO BAY
ADOPTING AN AMENDMENT TO SECTION 2.20.010 OF
CHAPTER 2 OF THE MORRO BAY MUNICIPAL CODE
THE CITY COUNCIL
CITY OF MORRO BAY, CALIFORNIA
WHEREAS, pursuant to Section 2.6.2 of the Morro Bay Council Policies and
Procedures, a Council Compensation Committee was appointed to propose
recommendations for an increase in Council compensation; and
WHEREAS,. after reviewing the Council Compensation Committee's
recommendations and the Councilinernber's roles and responsibilities, the Council
directed staff to prepare an amendment to Municipal Code Section 2.20.010 so that
Councilinember salary would be increased from $300.00 per month to $500.00 per.
month.
WHEREAS, following the Public Hearing, and upon consideration of the
testimony of all persons, both written and oral, the City Council of the City of Morro Bay
does ordain Section 2.20.0 10 — Mayor and Council Members be amended as follows:
Section 2.20.010: Mayor and Coun effin embers.
Each member of the city council and the mayor shall receive a salary of
three hundr-ed-do4ars five dollars per month. In addition to said
salary, any councilmember and the mayor may be reimbursed for actual
and necessary expenses incurred in the performance of official duties.
INTRODUCED at the regular meeting of the City Council held on the 28,11 day
of May 2002, by motion of Mayor Anderson and seconded by Councilmeniber Peirce.
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Morro Bay, on the 10"' day of June, 2002 by the following vote to wit:
AYES: Anderson, Elliott, Peirce, Peters
NOES: Crotzer
ABSENT: None
ABSTAIN: None
OP ER A&IkRSON, Mayor
ATTEST:
BRIDGET �BAUER, City Clerk
J
ORDINANCE 488
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MORRO BAY,
ADDING CHAPTER 14.75 TO THE CITY OF MORRO BAY'S MUNICIPAL CODE
REQUIRING MANDATORY CONSTRUCTION AND DEMOLITION DEBRIS
RECYCLING PROGRAM
THE CITY COUNCIL
City of Morro Bay, California
WHEREAS, AB 939 (California Integrated Waste Management Act) requires that each
local jurisdiction in the State divert 50% of discarded materials (base year 1990, state
methodology) from landfills by December 31, 2000; and
WHEREAS, SB 2202 clarifies that the requirement to meet the 50% diversion shall be
maintained beyond the year 2000; and
WHEREAS, every city and county in California could face fines up to $10,000 a day for
not meeting the above mandated goal; and
WHEREAS, reusing and recycling Construction and Demolition (C &D) debris is
essential to further the City's efforts to reduce waste and comply with AB 939 goals; and
WHEREAS, it is feasible to divert an average of at least fifty (50) percent of all C &D
debris from construction, demolition, and renovation projects, except in unusual circumstances;
and
WHEREAS, to ensure compliance with this Article and to ensure that those contractors
that comply with this Article are not placed at a competitive disadvantage, it is necessary to
impose a civil penalty for noncompliance of this Article.
BE IT ORDAINED by the Council of the City of Morro Bay as follows:
SECTION 1.
Chapter 14.75 is added to the Morro Bay Municipal Code to read as follows:
14.75.010 DEFINITIONS
A. "Applicant" means any individual, finn, limited liability company, association,
partnership, political subdivision, government agency, municipality, industry, public or private
corporation, or any other entity whatsoever who applies to the City for the applicable permits to
undertake any construction, demolition, or renovation project within the City, unless otherwise
specifically exempted by law.
B. "Compliance Official" means the Chief Building Official or his /her designee.
C. "Construction" means the building of any structure or any portion thereof including any
tenant improvements to an existing facility or structure.
D. "Construction and Demolition Debris" means used or discarded materials removed
from premises during construction or renovation of a structure resulting from construction,
remodeling, repair, or demolition operations on any pavement, house, commercial building, or
other structure.
E. "Conversion Rate" means the rate set forth in the standardized Conversion Rate Table
approved by the City pursuant to this Article for use in estimating the volume or weight of
materials identified in a RECYCLING PLAN.
T. "Covered Project" shall have the meaning set forth in 14.75.020 (A) of this Article.
G. "Deconstruction" means the systematic removal of usage items from a structure.
H. "Demolition" means the decimating, razing, ruining, tearing down or wrecking of any
facility, structure, pavement or building, whether in whole or in part, whether interior- or exterior.
I. "Divert" means to use material for any purpose other than disposal in a landfill.
J. "Diversion Requirement" means the diversion of at least fifty (50) percent by weight of
the total Construction and Demolition Debris generated by a Project via reuse or recycling,
unless the Applicant has been granted an Infeasible Exemption pursuant to 14.75.060 of this
Chapter, in which case the Diversion Requirement shall be the maximurn feasible diversion rate
established by the RECYCLING PLAN Compliance Official for the Project.
K. "Noncovered Project" shall have the meaning set forth in 14.75.020 (C) of this Article.
L. "Project" means any activity that requires an application for a building or demolition
permit or any similar permit from the City.
M. "Renovation" means any change, addition, or modification in an existing structure.
N. "Reuse" means further or repeated use of Construction or Demolition Debris.
O. "Salvage" means the controlled removal of Construction or Demolition Debris from a
permitted building or demolition site for the purpose of recycling, reuse or storage for later -
recycling or reuse.
P. "RECYCLING PLAN" means a completed RECYCLING PLAN form, approved by the
City for the purpose of compliance with this Article, submitted by the Applicant for any Covered
or Noncovered Project,
14.75.020 THRESHOLD FOR COVERED PROJECTS
A. Covered Projects: All construction and renovation projects within the City, the
valuation of which are, or are projected to be, greater than or equal to $50,000 (`Covered
Projects'), shall be required to divert at least fifty (50) percent of all project construction and
demolition debris in compliance with this Chapter. The cost of the project shall be the valuation
ascribed to the project by the Building Official. In addition, all demolition projects having a total
footage of more than 1,000 square feet shall be a Covered Project. Failure to comply with any of
the terms of this Chapter sliall subject the Project Applicant to the firll range of enforcement
mechanisms set forth in 14.75.050 (C) (3) and 14.75.060 below.
B. City- Sponsored Projects: All City - sponsored construction and renovation projects
within the City, the costs of which are, or are projected to be, greater than or equal to $50,000
(`Covered Projects') shall be required to divert at least fifty (50) percent of all project
construction and demolition debris in compliance with this Chapter. The cost of the project shall
be the valuation attributed to the permit issued by the Building Official. In addition, all
demolition projects having a total square footage of more than 1,000 shall be a Covered Project.
These City - sponsored Covered Projects shall submit a RECYCLING PLAN to the Compliance
Official prior to beginning any construction or demolition activities and shall be subject to all
applicable provisions of this Chapter with the exception of 14.75.050 (C) (3).
C. Non - covered Projects: Applicants for construction, demolition, and renovation projects
within the City whose permit valuations are less than $50,000 (`Non - covered Projects') shall be
encouraged to divert at least fifty (50) percent of all project - related construction and demolition
debris.
D. Compliance as a Condition of Approval: Compliance with the provisions of this
Chapter shall be listed as a condition of approval on any building or demolition permit issued for
a Covered Project.
14.75.030 SUBMISSION OF RECYCLING PLAN
A. RECYCLING PLAN Forins: Applicants for building or demolition permits involving
any Covered Project shall complete and submit a RECYCLING PLAN on a RECYCLING
PLAN form approved by the City for this purpose as part of the application packet for the
building or demolition permit. The completed RECYCLING PLAN shall indicate all of the
following:
1. The estimated volume or weight of project Construction and Demolition debris,
by materials type, to be generated;
2. The maximum volume or weight of such materials that can feasibly be diverted
via reuse or recycling;
3. The vendor or facility that the Applicant proposes to use to collect or receive that
material; and
4. The estimated volume or weight of Construction and Demolition debris that will
be landfrlled.
B. Calculating Volume and Weight of Debris: In estimating the volume or weight of
materials identified in the RECYCLING PLAN, the Applicant shall use the standardized
Conversion Rates approved by the City for this purpose.
C. Deconstruction: In preparing the RECYCLING PLAN, applicants for building or
demolition permits involving the removal of all or part of an existing structure shall deconstruct,
to the maximum extent feasible, and shall make the materials generated thereby available for
salvage.
14.75.040 REVIEW OF RECYCLING PLAN
A. Approval: Notwithstanding any other provision of this Code, no building or demolition
permit shall be issued for any Covered Project unless and until the RECYCLING PLAN
Compliance Official has approved the RECYCLING PLAN. Approval shall not be required,
however, where an emergency demolition is required to protect the public health, welfare or
safety as determined by the Chief Building Official. The RECYCLING PLAN compliance
Official shall only approve a RECYCLING PLAN if he or she first detennines that all of the
following conditions have been met:
1. The RECYCLING PLAN provides all of the information set forth in 14.75.030
(A) of this Chapter; and
2. The RECYCLING PLAN indicates that at least fifty (50) percent by weight of all
Construction and Demolition debris generated by the Project will be diverted.
If the RECYCLING PLAN Compliance Official determines that these conditions have been met,
he or she shall mark the RECYCLING PLAN `Approved', return a copy of the RECYCLING
PLAN to the Applicant, and notify the Building Department that the RECYCLING PLAN has
been approved.
B. Non - approval: If the RECYCLING PLAN Compliance Official determines that the
RECYCLING PLAN is incomplete or fails to indicate that at least fifty (50) percent by weight of
all Construction and Demolition debris generated by the Project will be reused or recycled, lie or
she shall either:
1. Return the RECYCLING PLAN to the Applicant marked `Denied', including a
statement of reasons, and so notify the Building Department; or
2. Return the RECYCLING PLAN to the Applicant marked `Further Explanation
Required'.
14.75.050 COMPLIANCE WITH RECYCLING PLAN
A. Documentation: Prior to receiving a Certificate of Occupancy for the project, the
Applicant shall submit to the RECYCLING PLAN Compliance Official documentation that the
Diversion Requirement for the Project has been met. The Diversion Requirement shall be that
the Applicant has diverted at least fifty (50) percent of the total Construction and Demolition
debris generated by the Project via reuse or recycling, unless the Applicant has been granted an
Infeasible Exemption pursuant to 14.75.060 of this Chapter, in which case the Diversion
Requirement shall be the maximum feasible diversion rate established by the RECYCLING
PLAN Compliance Official for the Project. This documentation shall include all of the
following:
1. Receipts from the vendor or facility which collected or received each material
showing the actual weight or volume of that material;
2. A copy of the previously approved RECYCLING PLAN for the Project adding
the actual volume or weight of each material diverted and landfilled;
1 Any additional information the Applicant believes is relevant to determining its
efforts to comply in good faith with this Chapter.
B. Weighing of Wastes: Applicants shall make reasonable efforts to ensure that all
Construction and Demolition debris diverted or landfrlled are measured and recorded using the
most accurate method of measurement available. To the extent practical, all Construction and
Demolition debris shall be weighed by measurement on scales. Such scales shall be in
compliance with all regulatory requirements for accuracy and maintenance. For Construction
and Demolition debris for which weighing is not practical due to small size or other
considerations, a volumetric measurement shall be used. For conversion of volumetric
measurements to weight, the Applicant shall use the standardized Conversion Rates approved by
the City for this purpose.
C. Determination of Compliance: The RECYCLING PLAN Compliance Official shall
review the information submitted under 14.75.050 (A) and determine whether the Applicant has
complied with the Diversion Requirement, as follows:
1. Full Compliance: If the RECYCLING PLAN Compliance Official determines
that the Applicant has fully complied with the Diversion Requirements applicable
to the Project, he or she shall approve the RECYCLING PLAN and inform. the
Building Division that a Certificate of Occupancy can be issued.
2. Substantial Compliance: If the RECYCLING PLAN Compliance Official
determines that the Diversion Requirement has not been achieved, fie or she shall
determine on a case -by -case basis whether the Applicant has made a good faith
effort and is in substantial compliance with this Chapter.
In making this determination, the RECYCLING PLAN Compliance Official shall
consider- the availability of markets for the Construction and Demolition debris
landfilled, the size of the Project, and /or the documented efforts of the Applicant
to divert Construction and Demolition debris. If the RECYCLING PLAN
Compliance Official determines that the Applicant has made a good faith effort to
comply with this Chapter and is in substantial compliance, lie or she shall approve
the RECYCLING PLAN and inform the Building Division that a Certificate of
Occupancy can be issued.
3. Noncompliance: If the RECYCLING PLAN Compliance Official determines
that the Applicant is not in substantial compliance with this Chapter, or if the
Applicant fails to submit the documentation required by 14.75.050 (A), then the
applicant shall pay a civil penalty as prescribed in 14.75.080 prior to the issuance
of a Certificate of Occupancy.
D. Falsification of Records: If the Applicant deliberately provides false or misleading data
to the City in violation of this Chapter, the Applicant may be subject to penalties in addition to
those specified in 14.75.080. In any civil enforcement action, administrative or judicial, the City
shall be entitled to recover its attorneys' fees and costs from an Applicant who is determined by
a court of competent jurisdiction to have violated this Chapter.
E. Final Approval: Prior to final approval by the Building Division all conditions of this
Chapter shall be met.
14.75.060 INFEASIBLE EXEMPTION
A. Application: If an Applicant for a Covered Project experiences unique circumstances
that the Applicant believes make it infeasible to comply with the Diversion Requirement, the
Applicant may apply for an exemption at the time that lie or she submits the RECYCLING
PLAN required under 14,75.030 (A) of this Chapter. The Applicant shall indicate on the
RECYCLING PLAN the maximum rate of diversion he or she believes is feasible for each
material and the specific circumstances that he or she believes make it infeasible to comply with
the Diversion Requirement.
B. Meeting with RECYCYLING PLAN Compliance Official: The RECYCLING PLAN
Compliance Official shall review the information supplied by the Applicant and may meet with
the Applicant to discuss possible ways of meeting the Diversion Requirement. Based on the
information supplied by the Applicant and, if applicable, San Luis Obispo County Integrated
Waste Management Authority staff or designee, the RECYCLING PLAN Compliance Official
shall determine whether- it is possible for the Applicant to meet the Diversion Requirement,
C. Granting of Exemption: If the RECYCLING plan Compliance Official determines that
it is infeasible for the Applicant to meet the Diversion Requirement due to unique circumstances,
lie or she shall determine the maximum feasible diversion rate for each material and shall
indicate this rate on the RECYCLING PLAN submitted by the Applicant. The RECYCLING
PLAN Compliance Official shall return a copy of the RECYCLING PLAN to the Applicant
marked `Approved for Infeasible Exemption' and shall notify the Building Division that the
RECYCLING PLAN has been approved,
D. Denial of Exemption: If the RECYCLING PLAN Compliance Official determines that
it is possible for the Applicant to meet the Diversion Requirement, he or she shall so inforttl the
Applicant in writing. The Applicant shall have 30 days to resubmit a RECYCLING PLAN form
in full compliance with 14.75.030 (A) of this Chapter. If the Applicant fails to resubmit the
RECYCLING PLAN, or if the resubmitted RECYCLING PLAN does not comply with
14.75.030 (A) of this Chapter, the RECYCLING PLAN Compliance Official shall deny the
RECYCLING PLAN in accordance with 14.75.040 (B) of this Chapter.
A. Contents of Appeals: An appeal of the Recycling Plan Compliance Official decision
may be made to the Public Services Director in writing not longer than ten (10) days after the
Compliance Official's decision. The decision of the Public Services Director shall be final. The
appellant must specifically state in the notice of appeal:
I. The name and address of the appellant and appellant's interest it) the decision;
2. The nature of the decision appealed froth and /or the conditions appealed from;
3. A clear, complete, but brief statement of the reasons why, in the opinion of the
appellant, the decision or the conditions imposed were unjustified or
inappropriate; and
4. The specific facts of the matter in sufficient detail to notify the City. The appeal
shall not be stated in generalities.
B. Acceptance of Appeal: An appeal shall not be accepted by the Public Services Director
unless it is complete.
14.75.080 CIVIL PENALTIES
A. Civil Penalty: If the RECYCLING PLAN Compliance Official, or on upon appeal, the
Public Services Director determines that an Applicant is in noncompliance as described in
14.75.050 (C) (3), the Applicant shall pay a civil penalty in the amount calculated as two (2)
percent of the total Project valuation. Until the civil penalty is paid, the Building Division may
withhold a Certificate of Occupancy. In order to Provide adequate education to applicants of this
Chapter and allow time for there to become fauniliar• with the necessary requirements,
enforcement of the civil penalty shall not occur until twelve (12) months after the effective date
of this Chapter.
B. Enforcement: The City Attorney is authorized to brine; a civil action in any court of
competent jurisdiction to recover such civil penalties for the City of Morro Bay.
14.75.090 SEVERABILITY
If any subdivision, paragraph, sentence, clause, or phrase of the this Chapter is, for any reason,
held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforcement of the remaining portions of this
Chapter, or any other provisions of the City's rules and regulations. It is the City's express intent
that each remaining portion would have been adopted irrespective of the fact that any one or
more subdivisions, paragraphs, sentences, clauses, or phrases be declared invalid or
unenforceable.
SECTION 2. A summary of this ordinance, approved by the City Attorney, together with the
names of the Council members voting for and agaiurst it, shall be published at least five days
prior to its final passage, in the Tribune, a newspaper published and circulated in this City. This
ordinance will go into effect at the expiration of thirty (30) days after its final passage.
INTRODUCED at a meeting of the City Council of Morro Bay held on the 25`" day of March.
2002 by motion of Councilmember Crotzer , seconded by Councihnenber Elliott
PASSED AND ADOPTED our the 22" `r day of April 2002 by the following vote;.
AYES: Anderson, Crotzer, Elliott,
NOES: None
ABSENT: None
ATTEST:
BRIDGET-bBAUER, City Clerk
APPROVED AS To F ILM:
ROBERT SCHULTZ, Attorney
Peirce, Peters
D ,R A IJERSOX, Mayor
ORDINANCE NO. 487
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF MORRO BAY AUTHORIZING AN AMENDMENT TO
THE CONTRACT BETWEEN THE CITY COUNCIL OF THE
CITY OF MORRO BAY AND THE BOARD OF ADMINISTRATION
OF THE CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM
(3% @ 50 FULL FORMULA FOR LOCAL POLICE MEMBERS ONLY)
THE CITY COUNCIL
City of Morro Bay, California
The City Council of the City of Morro Bay does ordain as follows:
Section 1.
That an amendment to the contract between the City Council of the City of Morro Bay and the
Board of Administration, California Public Employees' Retirement System is hereby authorized,
a copy of said amendment being attached hereto, marked Exhibit, and by such reference made a
part hereof as though Herein set out in frill.
Section 2.
The Mayor of the City Council is hereby authorized, empowered, and directed to execute said
amendment for and on behalf of said Agency.
Section 3.
This Ordinance shall take effect 30 days after the date of its adoption, and prior to the expiration
of 10 days from the passage thereof shall be published at least once in the Sun- Bulletin, a
newspaper of general circulation, published and circulated in the City of Morro Bay and
thenceforth and thereafter the same shall be in full force and effect.
INTRODUCED at a meeting of the City Council of Morro Bay held on the I Ith day of
March, 2002 by motion of Councilmember Elliott , seconded by Councilmember
Peirce
Ordinance No. 487
Page Two
PASSED AND ADOPTED on the 8th day of April, 2002 by the following vote:
AYES: Anderson, Crotzer, Elliott, Peirce and Peters
NOES: None
ABSENT: None
ATTEST:
BRIDGETT AUER, City Clerk
Ca1PERS
3 11
California
Public Employees' Retirement System
Between the
Board of Administration
EXHIBIT
California Public Employees' Retirement System
and the
City Council
City of Morro Bay
The Board of Administration, California Public Employees' Retirement System,
hereinafter referred to as Board, and the governing body of the above public agency,
hereinafter referred to as Public Agency, having entered into a contract effective
July 1, 1965, and witnessed June 1, 1965, and as amended effective August 15, 1981,
November 19, 1983, January 7, 1989, June 24, 1989, June 22, 1991, June 10, 1994,
June 9, 1998, October 17, 1998 and April 13, 2000 which provides for participation of
Public Agency in said System, Board and Public Agency hereby agree as follows:
A. Paragraphs 1 through 13 are hereby stricken from said contract as executed
effective April 13, 2000, and hereby replaced by the following paragraphs
numbered 1 through 14 inclusive:
All words and terms used herein which are defined in the Public
Employees' Retirement Law shall have the meaning as defined therein
unless otherwise specifically provided. "Normal retirement age" shall
mean age 55 for local miscellaneous members and age 50 for local safety
members.
2. Public Agency shall participate in the Public Employees' Retirement
System from and after July 1, 1965 making its employees as hereinafter
provided, members of said System subject to all provisions of the Public
Employees' Retirement Law except such as apply only on election of a
contracting agency and are not provided for herein and to all amendments
to said Law hereafter enacted except those, which by express provisions
thereof, apply only on the election of a contracting agency.
i.
PLEASE DO P "T SIGN t`EXHIBIT ONLY!
3. Employees of Public Agency in the following classes shall become
members of said Retirement System except such in each such class as
are excluded by law or this agreement:
a. Local Fire Fighters (herein referred to as local safety members);
b. Local Police Officers (herein referred to as local safety members);
C. Employees other than local safety members (herein referred to as
local miscellaneous members).
4. In addition to the classes of employees excluded from membership by
said Retirement Law, the following classes of employees shall not become
members of said Retirement System:
a. ELECTED OFFICIALS;
b. APPOINTIVE COMMISSIONS; AND
C. PERSONS COMPENSATED ON AN HOURLY BASIS.
5. This contract shall be a continuation of the benefits of the contract of the
Morro Bay Fire District, hereinafter referred to as "Former Agency"
pursuant to Section 20508 of the Government Code, Former Agency
having ceased to exist and succeeded by Public Agency on July 1, 1965.
Public Agency, by this contract, assumes the accumulated contributions
and assets derived therefrom and liability for prior and current service
under Former Agency's contract with respect to the Former Agency's
employees. Legislation repealed Section 20508, Statutes of 1949,
effective January 1, 1988.
6. The percentage of final compensation to be provided for each year of
credited prior and current service as a local miscellaneous member shall
be determined in accordance with Section 21354 of said Retirement Law
(2% at age 55 Full).
T. The percentage of final compensation to be provided for each year of
credited prior and current service as a local fire member shall be
determined in accordance with Section 21362 of said Retirement Law (2%
at age 50 Full).
8. The percentage of final compensation to be provided for each year of
credited prior and current service as a local police member shall be
determined in accordance with Section 21362.2 of said Retirement Law
(3% at age 50 Full).
PLEASE DO N�, SIGN "EXHIBIT ONLY„
9. Public Agency elected and elects to be subject to the following optional
provisions:
a. Section 21573 (Third Level of 1959 Survivor Benefits) for local
police members only.
b. Section 20965 (Credit for Unused Sick Leave).
C. Section 20042 (One -Year Final Compensation) for local safety
members only.
d. Section 21024 (Military Service Credit as Public Service), Statutes
of 1976 for local police members and local miscellaneous members
only.
e. Section 21574 (Fourth Level of 1959 Survivor Benefits) for local fire
members only.
f. Section 20423 ( "Local Safety Member" shall include Harbor or Port
Police Officers as described in Government Code Section 20423).
10. Public Agency, in accordance with Government Code Section 20790,
ceased to be an "employer" for purposes of Section 20834 effective on
August 15, 1981. Accumulated contributions of Public Agency shall be
fixed and determined as provided in Government Code Section 20834,
and accumulated contributions thereafter shall be held by the Board as
provided in Government Code Section 20834.
11. Public Agency shall contribute to said Retirement System the contributions
determined by actuarial valuations of prior and future service liability with
respect to local miscellaneous members and local safety members of said
Retirement System.
12. Public Agency shall also contribute to said Retirement System as follows:
a. Contributions required per covered member on account of the 1959
Survivor Benefits provided under Section 21573 of said Retirement
Law. (Subject to annual change.) In addition, all assets and
liabilities of Public Agency and its employees shall be pooled in a
single account, based on term. insurance rates, for survivors of all
local police members.
b. Contributions required per covered member on account of the 1959
Survivor Benefits provided under Section 21574 of said Retirement
Law. (Subject to annual change.) In addition, all assets and
liabilities of Public Agency and its employees shall be .pooled in a
single account, based on term insurance rates, for survivors of all
local fire members.
C. A reasonable amount, as fixed by the Board, payable in one
installment within 60 days of date of contract to cover the costs of
administering said System as it affects the employees of Public
Agency, not including the costs of special valuations or of the
periodic investigation and valuations required by law.
d. A reasonable amount, as fixed by the Board, payable in one
installment as the occasions arise, to cover the costs of special
valuations on account of employees of Public Agency, and costs of
the periodic investigation and valuations required by law.
13. Contributions required of Public Agency and its employees shall be
subject to adjustment by Board on account of amendments to the Public
Employees' Retirement Law, and on account of the experience under the
Retirement System as determined by the periodic investigation and
valuation required by said Retirement Law.
14. Contributions required of Public Agency and its employees shall be paid
by Public Agency to the Retirement System within fifteen days after the
end of the period to which said contributions refer or as may be prescribed
by Board regulation. If more or .less than the correct amount of
contributions is paid for any period, proper adjustment shall be made in
connection with subsequent remittances. Adjustments on account of
errors in contributions required of any employee may be made by direct
payments between the employee and the Board.
B. This amendment shall be effective on the day of ,
BOARD OF ADMINISTRATION ,11
PUBLIC EMPLOYEES' RETIRE YSTEM
. xo,
BY'���
KENNETH W. MARZ�ql�, CHIEF
ACTUARIAL & EM `DYER SERVICES DIVISION
PUBLIC EMPL ( - S' RETIREMENT SYSTEM
AMENDMENT
PERS- CON -702A (Rev. $196)
CITY COUNCIL
CITY OF MORRO BAY
BY
PRESIDING OFFICER
�y
Witness Date
Attest:
ClerK
�,`Z)
RESOLUTION NO. 18 -02
RESOLUTION OF INTENTION TO APPROVE
AN AMENDMENT TO THE CONTRACT BETWEEN THE
BOARD OF ADMINISTRATION
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
AND THE CITY COUNCIL, CITY O F MORRO BAY
THE CITY COUNCIL
City of Morro Bay, California
WHEREAS, the Public Employees' Retirement Law permits the participation of public agencies
and their employees in the Public Employees' Retirement System by, the execution of a contract, and sets
forth the procedure by which said public agencies may elect to subject themselves and their employees to
amendments to said Law; and
WHEREAS, one the steps in the procedures to amend this contract is the adoption. by the
governing body of the public agency of a resolution giving notice of its intention to approve an
amendment to said contract, which resolution shall contain a summary of the change proposed in said
contract; and
WHEREAS, the following is a statement of the proposed change:
To provide Section 21362.2 (3% @ 50 Full formula) for
local police members only.
NOW, THEREFORE BRIT RESOLVED that the governing body of the above agency does
hereby give notice of intention to approve an amendment to the contract between said public agency and
the Board of Administration of the Public Employees' Retirement System, a copy of said amendment
being attached hereto, as an "Exhibit" and by this reference made a part hereof.
PASSED AND ADOPTED by the Morro Bay City Council at a meeting thereof held this l lk�'
day of March, 2002, by the following vote:
AYES: Anderson, Crotzer, Elliott, Peirce, Peters
NOES: None
ABSENT: None
>� O G R ANDERSON, Mayor
ATTEST:
BRIDGET BAUER, City Clerk
ORDINANCE NO. 486
AN ORDINANCE OF THE CITY OF MORRO BAY ANNOUNCING FINDINGS AND ADOPTING
AMENDMENTS TO THE ZONING ORDINANCE TO REGULATE DEVELOPMENT STANDARDS
FOR BUILDING SETBACKS AND LOT COVERAGE IN THE BEACH TRACTS
THE CITY COUNCIL
City of Morro Bay, California
Case No. LCP /ZOA 03 -00
WHEREAS, the Planning Commission of the City of Morro Bay, on January 16, 2001 after a duly
noticed PUBLIC HEARING, did forward a recommendation, by adoption of Planning Commission Resolution
No. 01 -01 that the City Council amend Title 17 (Zoning Ordinance) to regulate development standards for the
rear yard setback and lot coverage in the Beach Tracts as contained in attached Exhibit "A "; and
WHEREAS, on the 26th day of February 2001, the City Council of the City of Morro Bay did hold
a duly noticed PUBLIC HEARING to consider the amendment regulating development standards for the
Beach Tracts as contained in attached Exhibit "A" and
WHEREAS, the Environmental Coordinator determined that the California Coastal Commission is
the lead agency for local coastal plan amendments for the purposes of the California Environmental Quality
Act; and
WHEREAS, following the PUBLIC HEARING, and upon consideration of the testimony of all
persons, both written and oral, the City Council accepted the Planning Commission recommendation and
approved the amendment based on the following findings:
1. The Zoning Ordinance Amendment proposal includes similar language, which was previously il% effect,
thus bringing many of the residences back into conformity with Section 17 of the MBMC.
2. The proposed Zoning Ordinance Amendment will not be injurious or detrimental to the health, safety,
comfort, general welfare or well being of the persons residing or working in the neighborhood.
NOW, THEREFORE. BE IT ORDAINED, by the City Council of the Citydf Mono Bay, California,
as follows:
SECTION 1: Title 17 of Morro Bay Municipal Code (Zoning Ordinance) is amended as contained in Exhibit
"A ", attached hereto and made a part of this ordinance:
SECTION 2: To implement the amendment adopted herein, the City Council of the City of Morro Bay,
California, hereby directs as follows:
1. That the above recitations are true and correct and constitute the findings of the Commission in this
matter; and,
3
2. The City Council of the City of Morro Bay hereby finds that the Local Coastal Program
Implementation Program (Zoning Ordinance) Amendments are in compliance with the intent, objectives, and
all applicable policies and provisions of the California Coastal Act; and
3. The amendments to title 17 shall take effect iinniediately upon certification by the California Coastal
Commission.
INTRODUCED at the regular rnecting of the City Council held on the 26" day of February 2001, by
motion of Crotzer and seconded by Peters
PASSED, APPROVED, AND ADOPTED, by the City Council of the City of Morro Bay, on the 26th day
of March 2001 by the following vote to wit:
AYES: Anderson, Crotzer, Elliott, Peirce, Peters
NOES:
None
ABSTAIN:
None
ABSENT:
None
Bridgett Bator, City Clerk
City of Morro Bay
ROBERT W. SCHUL
City Attorney
In
Exhibit A
Ordinance No. 486
Morro Bay Municipal Code Section 17.050 D is hereby amended to read as follows:
D. S.2A Overlay Zone Standards: The purpose of this overlay zone is to preserve the existing character of
physical development in the area within the jurisdiction of the city, west of Highway One, north of Azure
Street and south of tract 2110 (Toro Lane). Where this overlay zone fails to specify the location and type of
development permitted, the existing R -1 classification shall be deemed to contain the applicable definitions
and specifications. The following special standards apply to the S.2A overlay zone:
1. Minimum front yard setback, fifteen (15) feet, including garage.
2. Minimum interior side yard setback, five (5) feet.
3. Minimum exterior side yard setback (corner lot), fifteen feet (15), including garage.
less.
4. Maximum lot coverage permitted, fifty percent.
5. Minimum rear yard setback, five (5) feet.
6. Lot area less than three thousand five hundred square feet lot area, with a residence under one thousand
four hundred square feet, one car garage or car port permitted.
7. Dwelling height limit, fourteen feet for flat roofs and top of deck railing; provided, however, that for
peaked roofs (4 in 12 or greater pitch) and other architectural features, a height of up to seventeen feet
may be permitted.
5
City Council
City of Morro Bay AREA MAP
LCPIZOA 03 -00
RESOLUTION NO. 01-01
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MORRO BAY,
ANNOUNCING FINDINGS AND RECOMMENDING TO THE CITY COUNCIL APPROVAL OF
AMENDMENTS TO TITLE 17 (ZONING ORDINANCE) THE LOCAL COASTAL PLAN
IMPLEMENTATION DOCUMENT
THE PLANNING COMMISSION
City of Morro Bay, California
Case No. LCPIZOA 03 -00
:S
WHEREAS, the Planning Commission of the City of Morro Bay a held duly noticed public hearing
on January 16, 2001 to consider an amendment to title 17 (Zoning Ordinance), as shown in attachment "A"
attached hereto; and
WHEREAS, the Environmental Coordinator determined that the California Coastal Commission is
the lead Agency for the Local Coastal Plan Amendments for the purposes of the California Environmental
Quality Act; and
WHEREAS, following the public hearing, and consideration of the comments by all persons written
and oral, the Planning Commission did recommend approval of the amendment to the City Council, based on
the following findings:
1. The Zoning Ordinance Amendment proposal includes similar language, which was previously is effect,
thus bringing many of the residences back into conformity with Section 17 of the MBMC.
2. The proposed Zoning Ordinance Amendment will not be injurious or detrimental to the health, safety,
comfort, general welfare or well being of th6 persons residing or working in the neighborhood.
NOW, THEREFORE. BE IT RESOLVED, by the Planning Commission of the City if Morro Bay,
California, as follows:
1. That the above recitations are true and correct and constitute the findings of the Commission in this
matter; and,
2. That the Commission does hereby recommend approval of the amendment to Title 17, attached hereto
as Attachment "A" (amending section 17.40.050.D), to the City Council; and,
h
PC AGENDA NO. xq - D
DATE: I t D
ACTION:
PLANNING COMMISSION
,STAFF REPORT
DATE: January 16, 2001
TO: Planning Commission
FROM: Dan Long, Assistant Planner
SUBJECT: De Minimis Amendment to the Local Coastal Program (LCP) and Zoning Ordinance
LCP /ZOA 03 -00 (MBMC 17.40.050) — Modification and addition to the current standards
(S.2A).
RECOMMENDATION
Review the draft ordinance; open the public hearing and receive testimony; and approve
Resolution No. 01 -01, recommending the City Council to adopt the proposed amendment to the
Zoning Ordinance standards in the S.2A overlay district.
Background
In September of 2000, at a regularly scheduled public hearing a local resident gave comments
concerning the current standards of the S.2A standards in accordance with the previous standards
of the S.2A district. The Planning Commission directed staff to research the issue to determine
when the changes to the S.2A standards took place, specifically concerning the rear yard setback
and,lot coverage requirements.
It was discovered by staff that the Zoning Ordinance Amendment that changed the standards of
the S.2A district came as a result of an amendment to the overall Zoning Ordinance in 1994
(ZOA 05-91, GPA/LCP 03 -93). During this amendment many chapters in the Zoning Ordinance
were deleted, merged with other sections and /or had language added or deleted.
Discussion
After discussion with the Planning Commission and the City Council, staff was directed to
prepare the requested Zoning Ordinance Amendment to the S.2A standards concerning the rear
yard setbacks and lot coverage. The existing S.2A standards state and require the following:
S.2A Ot,erlay Zone Standai rls:
The purpose of the S.2A overlay zone is to preser�,e the existing character of physical
development in the area within the jurisdiction of the city, west of Highway One, north of Azure
Street. Where this overlay zone fails to specify the location and type of development perinitted,
the existing R -1 classification shall be deemed to contain the applicable definitions and
specifications. The following special standards apply to the S.2A overlay zone:
minimum), The second proposal is for the lot coverage to be 50 %. Regardless of the size of the
lot 50% shall be the maximum permitted. The last change is an overall location description,
which has been changed in order to clearly distinguish the S.2A district from Tract 2110 (North
Point subdivision/Toro Lane).
If approved the S.2A District standards would read as follows;
S.2A Overlay Zone Standards:
The purpose of this overlay zone is to preserve the existing character of physical development in
the area within the jurisdiction of the city, west of Highway One, north of Azure Street and south
of tract 2110 (Toro Lane). Where this overlay zone , fails to specify the location and type of
development permitted, the existing R -1 classification shall be deemed to contain the applicable
definitions and specifications. The following special standards apply to the S.2A overlay zone:
1. Minimum front yard setback, fifteen (15) feet, including garage.
2. Minimum interior side yard setback, five (5) feet.
3. Minimum exterior side yard setback (corner lot), fifteen feet (15), including garage.
4. Maximum lot coverage permitted, fifty percent.
5. Min hnttin rear yard setback, five (5) feet.
6. Lot area less than three thousand five hundred square feet lot area, with a residence under
one thousand four hundred square feet, one car garage or car port permitted.
7. Dwelling height limit, fourteen feet for flat roofs and top of deck railing; provided,
however, that for peaked roofs (4 in 12 or greater pitch) and other architectural features, a
height of up to seventeen feet may be permitted.
Conclusion
The 1994 Zoning Ordinance Amendment caused many residences in the S.2A District to become
legal non - conforming. Prior to the approval of ZOA 05- 91 /GPA/LCP 03 -93 in 1994, the
minimum setback requirement was 5 feet. As a result of the 1994 amendment, the minimum rear
yard setback became a 10% average depth of the lot with 6 feet minimum. The lot coverage was
also decreased for lots 4000 square feet or greater from 50% to 45 %. Previous to the 1994
amendment, there was no maximum lot size that defined the percentage of lot area that could be
developed.
As requested by the Planning Commission and City Council, the amendment allows many of the
residences to once again become conforming. This will not affect the character of the single -
family neighborhood because the amendments proposed were the standards a short time ago and
reflect the existing characteristics of the area's development. These amendments to the standards
maintain the quality of the neighborhood and allow many of the existing residences that were
developed under the pre 1994 standards to become conforming once again.
PASSED, APPROVED, AND ADOPTED, by the Planning Commission of the City of Morro Bay, on the
day of January 16, 2001, by the following vote to wit:
AYES:
NOES:
ABSENT:
Thad Baxley, Chairman
ATTEST:
Greig S. Cummings, Secretary to the Planning Commission
H.,
City of Morro Bay
PLANNING COMMISSION
MINUTES
Public Set vices Department, 590 Morro Bay Blvd, Morro Bay, Ca 93442, 805 - 772 -6261
Veteran's Memorial Building 209 Surf Street, Morro Bay
Regular Meeting Tuesday, January 16, 2001
Chairperson Thad Baxley
Commissioner John Barta Commissioner Don Doubledee
Commissioner Steve Carnes Commissioner Gary Ream
Greig S. Cummings, Secretary
I. CALL. TO ORDER:
Chairperson Baxley called the meeting to order at 6:00 p.m,
II. PLEDGE OF ALLEGIANCE:
Commissioner Barta led the meeting in the pledge of allegiance.
IIl. ROLL CALL:
PRESENT: Commissioners Ream, Carnes, Barta, Doubledee, and Chairperson Baxley
ABSENT: None
STAFF: Greig Cummings, Dan Long, and Cathy Weaver
IV. ACCEPTANCE OF AGENDA:
MOTION: Ream, Doubledee 2`1 to approve the Agenda as presented. Vote: 5 -0.
V. APPROVAL OF MINUTES: December 18, 2000, Baxley pointed out three corrections: 1) Page
3, Paragraph 4, first sentence, understand should read "understanding "; 2) Page 5, Paragraph 10,
last sentence, 4 -0 should read "4 -1 "; 3) Page 7, Paragraph 10, Barta should read "Doubledee."
Doubledee had a correction for Page 10, Paragraph 11, retrofitted should read "retrofit ". Barta
had one correction on Page 11, first line, the motion should read "to adopt the findings and
recommendations contained in the December 18, 2000, memorandum; and forward to the City
Council the memorandum together with the Commission recommendations as to suggested
findings and recommendations for the upcoming year."
MOTION: Barta, Doubledee 2nd, to approve the minutes with corrections. Vote: 5 -0.
VI. WRITTEN COMMUNICATIONS: Barta mentioned that he had received correspondence on
continuing education that he would share and the Planner's Institute was coming up May 21"
through the 23x.
VII. PRESENTATIONS: None
VIIL ORAL COMMUNICATIONS: None
Planning Commission
January 16, 2001
IX. FUTURE AGENDA ITEMS: None
X. CONSENT ACTIONSIENVIRONMENTAL REVIEW: None.
XI. PUBLIC HEARINGS:
A. CUP 62 -00: Site Locations: 1055 Morro Avenue. Applicant: City of Morro Bay.
Cummings requested that the Commission move to Item B due to presenting planner's
absence.
MOTION: Barta, Doubledee 2 ®a to move to Item B and return to Item A when the presenting planner
arrived. Vote: 5 -0.
Matt Everling entered the meeting at 6:10 P.M.
A. CUP 62 -00: Site Locations: 1055 Morro Avenue. Applicant: City of Morro Bay.
Everling gave an overview of his staff report stating the City of Morro Bay's Recreation
and Parks Department submitted a Conditional Use Permit application to convert an
existing 3,108 square -foot building into a new youth center. The property is located at the
northwest corner of Beach & Morro in the C- VSIR- 3IPDIS.4 /S.6 Zone; which allows
visitor- serving commercial uses with multi- family residential uses, Everling explained
that the purpose of the Planned Development Overlay Zone was to allow uses not
expressly permitted by the primary zone if it resulted in a better design or public benefit.
'therefore the Planning Commission had the authority to override the commercial- visitor
serving standards if they felt the youth center produced a public benefit.
Everling noted that the Sandpiper Motel had submitted a letter voicing numerous
objections to the project. Also, Mr. Andrew Hamp submitted a letter voicing his
concerns. The major concerns appeared to be noise, site becoming a "hang -out" or
loitering, parking and hours of operation.
Everling stated that staff recommended approval based on the findings for the
Conditional Use Permit along with the Conditions of Approval.
Barta asked about the parking calculation; was it common practice to tie the parking to
only a portion of the facility. Everling stated it was common practice to break down the
uses if they wouldn't be using the parking during the same time frames.
Doubledee asked which door would be used for the main entrance? Everling said it would
be off of Morro, the northeasterly portion of the building.
Barta questioned the condition that said only one assembly area could be used for a
public event. Everling said if the north assembly area was being used the other assembly
area would be off - limits for that event, or another event during that time period. Only one
could be used at a time. Barta said it was noted that the assembly area could be rented for
public events, where did that request come from? Everling said he would defer to Lueker
to answer that question. Barta asked if this facility was purchased with parking in -leu
fees? Everling said he didn't know the answer to that.
Planning Commission
January 16, 2001
Andrea Lucker, Recreation and Parks Director, gave a presentation detailing the history
of the quest for a City teen center and outlined how the subject site would be used.
Baxley asked if Lueker had any concerns with staff conditions and she responded no..
Barta asked about the suggestion for a fence on Morro Ave in the submitted letter and
what did Lucker think about that. She said she would like to start out using the facility as
is.
Ream asked about the more obvious suggestions in that letter, #2, 3, or 4. Leuker said
those were already being done at all city staffed facilities. He questioned how the
Recreation staff would supervise computer /internet use? Leuker responded that staff
would visually monitor computer use.
Carnes asked about weekend hours? Leuker said something like noon to G or so unless
there was a special evening event.
The public comments received were as follows:
Dannic Rodger Tope — objected to parking in -leu fees being used to purchase the facility
and felt a condition to mandate the money go back to the right fund be included.
Reba Winter — very involved with teen programs and stated no complaints had been
received from Community Center neighbors about prior teen activities.
Carrie Godscalk —representing Pricilla Coe of the Sandpiper Motel, commented that the
motel had been there for fifty years. They were supported by guests that wanted peace
and quiet. A lot of their clients at this time were cable workers who were sleeping during
the day and working at night. Noise is a major concern for them and they didn't think
locating a youth center across the street would allow them to continue making a living.
Dwight — stated he was in town on contract work staying at the Sandpiper Motel
and he didn't feel this was a good location for the center. A better location would be by
the library, park and community center.
Stevie Anderson — the community had existed without a youth center in the past. But, it
was a needed use and children are smart; if they want to be there they will abide by the
rules.
Stan House -- we have a great Recreation & Parks Department, we have a building we
can use, we have money from an outside source, and we have kids that are interested. We
should do it.
Linda Merril — she supports the use and feels the Recreation staff will be able to make
this a compatible use.
Annie Lynn — she thinks the teen center would be a really nice place to hang out or do
homework,
Emily House — she has talked to many teens at her school and they all feel we need a teen
center so that we can go and hang out, do homework, play pool, and have good times.
She doesn't feel there will be a lot of noise and it won't be disruptive to the community.
Nancy Johnson — she lives across Beach St from the teen center and thinks there is a
safety issue with too much traffic on Beach. She feels a stop sign on Beach is needed.
She also felt that locating the center in the middle of five motels would advertise the
center to youth from outside the community.
Barry Dorfman — he supports the youth center. He said it may not be the best location but
it is a chance to integrate the youth into the community. He urged the commission to
support the center.
Planning Commission
January 16, 2001
Oliver Borbet -- owns property on south side of center. He has no objection to helping
children, but he's hoping he won't have problems with the use.
Ream commented that they'd heard a lot of good discussion. He believes young people
will live up to expectations and he knows they will be good neighbors. He suggested a
snack bar or vending machines be located at the center so they don't have to go off -site.
A stop sign on Beach Street would be a good idea. It is a temporary use and a Conditional
Use Permit can be pulled if the use is not compatible with the neighborhood.
Carnes said he thought there had been nine comments for and three against the project,
along with some maybes. He was pleased with the community input. He would like to see
public review after project was in place and maybe public works should look at the need
for a stop sign on Beach St.
Barta planed to support the project but concerns raised needed to be addressed. He said
this is not the cleanest fit. A youth center, residential uses and motel uses could be a
tough match. He thinks a yearly review is necessary to address problems that occur. The
support of the project should be contingent on the pay back of the parking in -leu money.
He felt staff showed a lot of creativity in the parking calculations and they should keep
this parking fix in mind for other projects. Other items to address were hours of
operation, noise, no exterior activities, etc.
Doubledee commented that there was a teen center at one time but it wasn't utilized
much and was taken over by other uses that needed space. Then the Community Center
was built and provided space for teen programs; but, not enough space for the youth to
have space of their own. Since the project is limited to interior activities, it is a temporary
use, and hours could be limited he would support the project. He is concerned with the
parking in -leu fees being used to purchase the project and would like to add a condition
to repay that.
Baxley said he would support the project as conditioned, but added that hours of
operation should be limited to 8 or 9 PM on week nights, maybe 10 PM on weekends.
The stop sign question should be directed to public works.
MOTION: Barta, Baxley 2 to conditionally approve CUP 62 -00 in accordance with the Findings
included as Exhibit "A," adding the finding that the youth center use is incompatible with a parking lot
use; subject to the Conditions included as Exhibit B plus added conditions of 1) No skateboarding or
loitering; 2) Outside cleanup after each use; 3) Staff to be last to leave facility; 4) Temporary permit to be
acted upon annually by the Planning Commission at a properly noticed public he 5) No exterior
activities to be allowed; and 6) Hours of operation shall not extend beyond 10 PM; and the site
development plans dated October 11, 2000. Roll call vote: 5 -0.
Baxley called for a five- minute break.
B. CUP 22- OOICDP 48- 00R/MB 00 -112: Site Location: 540 Mimosa Street. Cummings
reported that the Commission had heard this request previously and it had been
continued. The Commission's concern at those meetings was primarily the drainage.
Cummings continued to describe the project and gave some background information. He
stated that the applicant had submitted a drainage plan. The City Engineer had reviewed
the plans and staff had amended conditions that would address concerns with grading,
drainage and erosion control.
4
Planning Commission
January 16, 2001
Carnes stated that the map appeared to be the same map they had reviewed before.
Cummings commented that it was very similar; but drainage along the retaining wall
goes into a catchment down at the bottom to a basin. The City Engineer was concerned
about the quantity of water going into the basin and it was noted that the City Engineer
was requesting the applicant use a 25 -year storm que which is in the amended condition
32.
Barta commented on the retaining walls, perpendicular to the property line, looks as if
they are on the adjacent property. Cummings stated the applicant could address that.
Stephen Frank, Engineer of Record on the tentative map phase, reported that he had done
a lot of work in San Luis Obispo for the applicant but was unfamiliar with Morro Bay's
standards and he was sorry for taking up three planning commission meetings. He said he
felt the conditions of approval covered the city's concerns with not having a detailed
grading and drainage plan in the very beginning of the planning process. Frank said he
had not received the amended conditions till just now but they concur with those findings
and conditions. He felt the forty something conditions of approval will insure that work
will be handled to the city's satisfaction or they won't have a project. He noted that they
also needed to comply with CalTrans requirements.
Carnes asked that the conditions be expanded to include off -site drainage. Ream said it
was time to leave it in the Engineer's hands. Barta asked how Carnes wanted to word the
expanded condition. Carnes explained that Condition 10 could be expanded to make sure
they look at off-site drainage and take care of it.
Cummings stated that the last line of Condition 10 would include "the plans shall also
address off -site drainage."
Barta questioned the issue of impact fees and the retrofit program? Cummings said that
the retrofit program ended but there are still impact fees. He said the Council did not
address the impact fees. Barta asked if someone came in tomorrow to pull a permit
without a retrofit package would they be able to. Cummings answered yes.
Doubledee said that the concerns had been addressed and he would support the project.
Baxley said he agreed.
MOTION: Carnes, Barta 2nd to adopt the Mitigated Negative Declaration for CUP 22- OOICDP 48-
00R/MB 00 -112, in accordance with the California Environmental Quality Act (CEQA) and adopt all
Findings. Roll call vote 5 -0.
MOTION: Carnes, Barta 2n1 to conditionally approve CUP 22- OO /CDP 48- OOR/MB 00 -112 subject to the
Findings and Conditions included as Exhibits A B C & D, Changes to the Conditions of Approval
recommend by the City Engineer -- handed out at the meeting, and the addition to Condition 10 discussed
above and the site development plans dated August 3, 2000. Roll call vote 5 -0
C. CUP 03- 00 /CDP 11 -OOR, Site Location: 911 Morro Bay Blvd. Cummings gave an
overview of the project stating the applicant proposes to remodel the existing Mobil
Service Station on the corner of Morro Bay Blvd and Quintana Road, A 928 sq. ft.
addition is proposed to be added to the original 1,740 sq. ft. building to accommodate a
Planning Commission
January 16, 2001
convenience store, for a total of 2,668 sq. ft. A 747 sq. ft. carwash will be installed that
utilizes recycled water. Six (6) new gasoline nozzles will be added to the service station
island. The applicant is also requesting the addition of 49.20 sq, ft. of additional signage.
The proposed hours of operation are 5 A.M. to 11. P.M. seven days a week. The applicant
will help fund improvements to the intersection.
Ream asked how much signage is available to applicant? Cummings said what was being
proposed was within the allowable square footage. Ream said there is a large sign with a
flying horse that is not mentioned in the staff report and he wanted to know if that had
been included in the calculations. Cummings said he would find out. Ream said the staff
report indicated a 21% increase in traffic, was that in general or only from the gas station.
Cummings said it was from the proposed expansion to the gas station.
Doubledee said he wasn't sure about whether the existing roof was to remain or be
reroofed as the color board showed a metal roof? Cummings answered that it was to be
replaced. Doubledee wanted to know what happens to the traffic impact fee money?
Cummings said it would go into the round -a -bout project at that location, funding was
expected from CalTrans and another gas station had also paid their fair share of costs for
the improvements. He explained that any project that increases traffic at that intersection
would have to pay a fair share cost of the improvements. Doubledee also asked about the
mention of MtBE detected on -site at this location, will that impact this project.
Cummings answered that it shouldn't impact this project but they will have to get that
cleared by the Water Quality Control Board.
Discussion followed concerning the placement of the car wash. A number of
commissioners were concerned about it being placed up fi•ont on the Quintana Road
frontage.
Tom Brajkovich, architect for the project, said they had looked at a number of
possibilities but this was the most efficient placement as it allowed the stacking of
vehicles behind the station. The large tree on the Quintana side will remain, along with
new landscaping, and screen the car wash from the street. It will also have a trellis and
outdoor seating.
John Stewart, of Stewart Petroleum, said the water usage for the car wash was state of the
art and only used about 10% of what would normally be used as the water is filtered and
reclaimed. He stated that he would work with the city on the redesign of the service club
sign.
Other issues discussed were: question of sign in right -of-way; paved area in back of
project not to be used for storage of cars; RV parking space not to be used for long term
parking; a six foot block wall between the station and mobile home park; training for
employees on alarms and/or MtBE questions; concrete curb a safety issue, applicant to
address; canopy to be 30 inches tall not 36; tourist information kiosk; and new service
club sign.
MOTION: Doubledee, Baxley 2 "a to adopt the Mitigated Negative Declaration for CUP 03- 00 /CDP 11-
OOR, in accordance with the California Environmental Quality Act (CEQA) and adopt all Findings. Roll
call vote 5 -0.
6
Planning Commission
January 16, 2001
MOTION: Doubledec, Baxley 2 ®a to conditionally approve CUP 03 -00 /CDP 11 -OOR subject to the
Findings and Conditions included as Exhibits A & B, and the site development plans dated December 19,
2000. The motion included the following conditions: The applicant will work with staff to reconstruct
service club signage; The applicant will work with the community promotions committee to construct a
tourist information kiosk in public space on -site; When property changes hands the new owner shall apply
for and obtain a conditional use permit; The applicant shall certify any existing or future MtBE site
contamination and it shall be remedied to the satisfaction of the City of Mono Bay. Roll call vote 5 -0
D. LCP /ZOA 03 -00: Site Location: Atascadero Beach Tract. Long gave an overview of
his staff report. S.2A standards were discussed with Long explaining that the amendment
mainly affected the rear yard setback and lot coverage. The new language includes the
following changes; the first is for the S.2A District to include a rear yard setback standard
(5 feet min.). The second change is the lot coverage to be 50% (no matter what size the
lot is). The last change is an overall location description, which has been changed in
order to clearly distinguish the S.2A district from Tract 2110 (North Point
subdivision/Toro Lane).
Ream commented that there was a typo in Resolution No. 01 -01, 6`h paragraph, it should
read "City of Morro Bay ".
Joe Woods wanted to encourage the commission to approve the Resolution. Art
Stansbury hoped they would vote in favor of this Resolution and he thanked them for
putting the ordinance back the way it used to be.
MOTION: Barta, Doubledee 2 °a to approve LCP /ZOA 03 -00 with correction. Roll call vote 5 -0.
E. SE 03 -98: Site Location: Downtown Morro Bay. Long gave an overview of his staff
report. He explained that on December 18'h, 2000, ten other sign exceptions were
approved; this one had to be continued due to a noticing error. He said there are no
changes from the previous ten adopted. This sign exception meets all of the requirements
and has the same conditions as the ones previously approved. He stated that one protest
letter was received from an adjacent business owner and was passed out to the
commissioners.
Ream asked why do we allow them to be placed up to 45 feet away from their own
businesses? It was pointed out that the intent was to give mid block businesses some
advertising frontage on cross streets. Doubledec questioned item six in the guidelines that
discussed material. The protest letter said the sign had blown over? Long said the subject
sign was very heavy and the wind that blew it over was not the usual. Carnes asked when
the new sign requirements were expected to be completed? Barta said they were working
on them and in response to Reams concerns these A -frame sign exceptions were
approved on an individual basis so businesses can't just place a sign in front of other
businesses. Barta said the new sign model would propose corner kiosks. Doubledee said
that if a safety issue came up the guidelines allowed staff to have the sign relocated or
removed. Discussion followed about getting approval from adjacent businesses before
placing off -site signs.
MOTION: Barta, Doubledee 2°1 to approve SE 03 -98 to be located on Monterey Street. Roll call vote 5 -0.
F. CUPI3 -98 /CDP 61-98R: Site Location: 560 Mimosa. Everling gave an overview of his
staff report explaining that this application was for one single family home. He reported
Planning Commission
January 16, 2001
that the original application was for the construction of twelve apartment units. The
property was then determined to be located within CA -SLO -165 archaeological site and a
significant amount of mitigation was recommended. Through this process the applicant
chose to significantly reduce the scale and scope of the proposal, which led to a revised
application submittal (June 2000) consisting of one single family residence. The home
will be placed on the far north end of the site and the majority of the cultural deposits will
remain intact on the site. Everling stated that based on the minimal development of the
site, along with the appropriate monitoring, and mitigation measures staff recommends
approval.
Baxley commented and Everling agreed that on page 8, under 19, paragraphs c & f
should be eliminated. Barta asked if the applicant could come back at a later time and
request approval of additional development? Everling said there was noting in this
approval to prevent that. Carnes asked how this project differed from the last Mimosa
project they approved. Baxley clarified that the two projects were developing their sites
differently. The last project was capping the entire site whereas this applicant was still
going to dig but just in a small area.
John Day, the applicant, stated that the house was being put next to the street more for
economic reasons than arch reasons. He then explained why he couldn't cap his lot like
the adjacent project. Day described his problems in getting approval for the apartment
project and stated he felt it was more political fallout rather than significant arch impacts.
The commission came to the consensus that they would support the project as proposed.
Baxley asked if Day had concerns with the conditions and he responded no.
MOTION: Doubledee, Carnes 2nd to adopt the Mitigated Negative Declaration for CUP 13- 98 /CDP 61-
98R. Roll call vote: 5 -0.
MOTION: Doubledee, Carnes 2nd to conditionally approve CUP 13- 981CDP 61 -98R with the Findings in
Exhibit A and Conditions included as Exhibit B and the site plan dated July 3, 2000. Roll call vote: 5 -0
G. SUP 03 -00: Site Location: 1290 Ernbarcadero Road. Barta stepped down due to his
residence being in proximity to the project. Everling gave an overview of his staff report
stating that this is a request to approve a Special Use Permit for maintenance dredging in
Morro Bay Harbor to remove sand that has accumulated adjacent to the Morro Bay
Power Plant cooling water intake structure. He stated that Duke Energy is requesting a
maintenance- dredging permit for up to 5 years. Within those 5 years Duke is proposing to
dredge the harbor a maximum of 3 times, with approximately 5,000 yards of sand each
time, for a total of 15,000 yards. Dredging will occur depending on the rate of sand
accumulation, and the volume of sand dredged up at each occurrence. Dredged sand will
be used for beach replenishment at one or both of two existing United States Army Corps
of Engineers (USACE) sand disposal sites located north and south of the dredging site.
The previously approved USACE surf disposal site, located up the beach to the north of
the subject site will be the primary site for the disposal of the sand. The work will be
performed with a cutterhead/suction dredge with a hydraulic pipeline. The second
disposal site is located in the near shore waters beyond the sand spit, and is proposed as
an alternative disposal site. The primary disposal site in the surf zone cannot be used
from March 1, 2001, to September 30, 2001, due to potential impacts on certain sensitive
species.
Plainiing Commission
January 16, 2001
The volume of sand is small and each dredging event will typically be completed within
several days. Due to the small volume of said, Duke is proposing to utilize dredging
equipment in the harbor that will be used by the City of Morro Bay. The City has plans to
dredge the harbor early this year under an existing permit. Duke has contacted the Harbor
Department with the intent to coordinate the City dredging project with the Duke project.
Integrating the two projects will reduce costs and potential environmental impacts
compared as if the projects were separate.
Everling mentioned that Condition 8 needed to be modified. It should read "Thirty days
before dredging the applicant shall provide the Director of the Wastewater Treatment
Plant" ... etc. Some concerns were mentioned, one that was resolved dealing with grain
size of the sand and a second concern with where the accumulated sand was coming
from. Everling hoped the applicant could answer that question for them. Staff
recommended approval, with the change to condition 8, based on the Resolution and the
conditions of approval.
Carnes asked what area the city was planning to dredge? Everting said he believed it was
the west side of the sand spit where the wind blows the sand into the harbor, in the
navigational channel. Doubledee asked about the schedule for the nesting of the snowy
plover? How will this affect the dredging? Everling wanted to defer that question to the
applicant.
MOTION: Baxley, Doubledee 2 "d to extend the meeting beyond 10 P.M. Vote: 5 -0.
Joe Stenger, with TRC (an environmental consulting firm) the agent for the applicant,
wanted to clarify that the three dredging events were the worst case scenario. The goal
was to have the permits in hand so the dredging could occur when the dredging
equipment was in the area for another job or jobs. He said it didn't look as if the project
could occur prior to March. He questioned the need for Condition 10, was that just a
typical condition because it wasn't applicable in this case? Everling responded that was
correct and he didn't see any need for that condition.
Carnes asked if the City would receive a copy of the final map after dredging to show the
new contours. Stenger said that could be provided when project was complete and
telemetry was done.
Henriette Groot, with the Coastal Alliance, the Alliance has a major concern with the
estuary. There has been a lot of debate on the sediment in the bay. We will miss an
opportunity to study the sediment in front of Duke, we need to know where that sediment
is coming from, and the whole issue needs to be studied. The staff report says that this is
exempt from the coastal plan because it is in the navigation channel. Figure 2 shows the
edge of the dredging area and it isn't in the navigation channel it is on private property
and as such should go to the Coastal Commission. She would like to hear from the City
Attorney on whether this is private property or in the navigation channel.
The consensus of the commission was that this was on going work to keep the bay clean.
It was noted that the Coastal Commission said the project was exempt from a Coastal
Development Permit.
MOTION: Carnes, Doubledee 2 " d to approve SUP 03 -00. Roll call vote: 4 -0
Planning Commission
January 16, 2001
Barta rejoined the meeting.
XII. OLD BUSINESS: None
XIII. NEW BUSINESS: Cummings reported that staff had met with a Geographical Information
Systems (GIS) firm. The firm is well known and Cal Poly students use it extensively. The cost is
pretty much in line with what the County had told us. Cost has come down a lot since the last
time the City looked at getting a system.
Everling said he had met with people from CalTrans and the SLO Council of Governments
regarding beautification money they were expecting. They went out in a van and looked at
different landscaping and enhancements along Highway One. They were interested in getting the
City's input on were the money would go in Morro Bay. It would be a future Agenda Item when
he had more information. Ream and Carnes asked that this be agendized for discussion in the near
future.
Baxley asked if Cummings had an update on the special Planning Commission meeting
tomorrow. It was noted that the meeting was to be held at the Community Center in the Multi -
Purpose Room, at 6:00 P.M., January 17, 2001.
Barta questioned how the PG & E tree problem was coming along. Cummings reported that staff
was working on the project but so far PG & E had not gone forward with compliance. He had told
them that it was to go to code enforcement and received a defensive letter back essentially saying
that the planting season was over.
ADJOURNMENT at 10:30 p.m. to the next regular meeting, Monday, February 5, 2001, at 6:00 p.m.
ATTEST:
Greig S. Cummings, Secretary
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Thad Baxley, Chairperson
S:\Planning\WIN WORDWINUTES 520011PCniln011601.doc
ORDINANCE NO. 485
AN ORDINANCE OF THE CITY OF MORRO BAY TO SUPERSEDE
CHAPTER 5.30 OF THE MORRO BAY MUNICIPAL CODE
REGARDING CABLE TELEVISION
THE CITY COUNCIL
CITY OF MORRO BAY, CALIFORNIA
The City Council of the City of Morro Bay does ordain as follows:
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1, That existing Ordinance No. 2-27 shall apply to any Cable System Franchise in force prior
to the effective date of this Ordinance.
2. That this Ordinance No. 485 is hereby enacted to apply to any Cable System Franchise
granted or renewcd subsequent to the effective date of this Ordinance.
Sections:
5.30.010 Authority
5.30.020 Findings
5.30.030 Short title
1. Intelit
11. Short Title
111. Definitions
5.30.040 Definitions generally
5.30.050 Basic cable service
5.30.060 Cable operator
5.30.070 Cable service
5.30.080 Cable system or system
5.30.090 Channel or cable channel
5.30.100 Council
5.30. 110 Franchise
5.30.120 Franchise agreement
5.30.130 Franchise fee
5,30.140 Grantee
5.30.150 Grantor or city
5.30.160 Gross annual cable service revenues
5.30.170 Installation
5.30.180 Person
5.30.190 Public, educational or government access facilities or PEG access facilities
5.30.200 Section
5.30.210 Service area or franchise area
5.30.220 Service tier
5.30.230 State
5.30.240 Street
5.30.250 Public way or public rights -of -way
5.30.250 Subscriber or customer or consumer
IV. Franchise Terms and Conditions
5.30.270
Franchise pursposes
5.30.280
Franchise required
5.30.290
Terrn of the franchise
5.30.300
Franchise territory
5.30.310
Federal or state jurisdiction
5.30.320
Franchise non - transferable
5.30.330
Geographical coverage
5.30.340
Nonexclusive franchise
5.30.350
Multiple franchises
5.30.360
Franchise modification
V. Franchise Applications and Renewal
5.30.370 Filing of applications
5.30.380 Applications - contents
5.30.390 Consideration of initial applications
5.30.400 Franchise renewal
VI, Minimum Consuiner Protection and Service Standards
5.30.410 Operational standards
5.30.420 Service standards
5.30.430 Billing and information standards
5.30.440 Verification of compliance with standards
5.30.450 Subscriber complaints and disputes
5.30.460 Other requirements
VIL Franchise Fee and Financial Requirements
5.30.470 Franchise fee
5.30.480 Franchise fee audit
5.30.490 Security fund
VIII. Construction Requirements
5.30.500 System construction
5.30.510 Multiple franchises
IX, Technical Standards
5.30.520 Applicable technical standards
5.30.530 Costs of technical assistance
X. Indemnification and Insurance Requirements
5.30.540 Hold harmless
5.30.550 Insurance
5.30.560 Records required
5.30.570 Annual reports
5.30.580 Opinion survey
5.30.590 Biannual review
5.30.600 Special review
XI. Records and Reports
XII. Review of System Performance
XIII. Franchise Violations
5.30.610 Remedies for violations
5.30.620 Procedure for remedying franchise violations
5.30.630 Grantor's power to revoke
5.30.640 Appeal of finding of revocation
XIV. Force Majeure; Grantee's Inability to Perform
XV. Abandonment or Removal of Franchise Property
5.30.650 Abandonment or removal
5.30.660 Restoration by grantor: reimbursement of costs
5.30.670 Extended operation and continuity of services
5.30.680 Receivership and foreclosure
XVI. Grantor and Subscriber Rights
5.30.690 Reservation of grantor rights
5.30.700 Waiver
5.30.710 Rights of individuals
XVII. Severability
I. Intent
5.30.010 Authority
The City of Morro Bay pursuant to applicable Federal and State law, is authorized to grant
one or more non- exclusive franchises to constiuct, operate, maintain and reconstruct Cable Systems
within the City limits.
5.30.020 Findings
The City Council finds that the development of Cable Systems has the potential of having
great benefit and impact upon the residents of the City. Because of the complex and rapidly
changing technology associated with Cable Systems, the City Council further finds that the public
convenience, safety and general welfare can best be served by establishing regulatory powers which
should be vested in the City or such Persons as the City may designate. It is the intent of this
Ordinance and subsequent amendments to provide for and specify the means to attain the best
possible Cable Service to the public and any Franchises issued pursuant to this Ordinance shall be
deemed to include this as an integral finding thereof, It is the further intent of this Ordinance to
establish regulatory provisions that permit the City to regulate Cable System Franchises to the extent
permitted by Federal and State law, including but not limited to the Federal Cable Communications
Policy Act of 1981, the Federal Cable Television Consumer Protection and Competition Act of
1992, the Federal Telecommunications Act of 1996, applicable Federal Communications
Commission regulations and applicable California law.
II. Short Title
5.30.030 Short title.
This Ordinance shall constitute the "Cable System Regulatory Ordinance" of the City of
Morro Bay and may be referred to as such.
III. Definitions
5.30.040 Definitions generally.
For the purposes ofthis Ordinance, the following terms, phrases, words and their derivations
shall have the meaning given herein. Words used in the present tense include the future, words in
the plural number include the singular number, and words in the singular number include the plural
number. Words not defined shall be given their common and ordinary meaning.
5.30.050 Basic cable service.
"Basic Cable Service" means any service tier which includes the retransmission of local
television broadcast signals.
5.30.060 Cable operator.
"Cable Operator" means any Person or group of Persons who:
A. Provides Cable Service over a Cable System and directly or through one (1) or more
affiliates owns a significant interest in such Cable System; or
B. Otherwise controls or is responsible for, through any arrangement, the management and
operation of such Cable System,
5.30.070 Cable service.
"Cable Service" means:
A. The one -way transmission to Subscribers of
1. video programming; or
2. other programming service; and
B. Subscriber interaction, if any, which is required for the selection or use of such video
programming or other programming service.
5.30.080 Cable system or system.
"Cable System" or "System," means a facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment that is designed to provide Cable
Service which includes video programming and which is provided to multiple Subscribers within
a community, but such term does not include.
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A. A facility that serves only to retransmit television signals of one (1) or more television
broadcast stations;
B. A facility that serves Subscribers without using any Public Rights -of -Way;
C. A facility of a common carrier which is subject, in whole or in part, to the provisions of
Title 11 of the Communications Act of 1934, as amended, except that such facility shall be
considered a Cable System (other than for the purposes of 47 USC 541) to the extent such facility
is used in the transmission of video programming directly to Subscribers; unless the extent of such
use is solely to provide interactive on- demand services;
D. An open video system that complies with 47 USC 573 (Section 653 of the
Communications Act of 1934); or
E. Any facilities of any electric utility used solely for operating its electric utility system.
5.30.090 Channel or cable channel.
"Channel" or "Cable Channel" means a portion of the electromagnetic frequency spectrum
which is used in a Cable System and which is capable of delivering a television channel as defined
by the Federal Communications Commission.
5.30.100 Council.
"Council" means the city council of the city of Morro Bay.
5.30.110 Franchise.
"Franchise" means an initial authorization, or renewal thereof, issued by the Council, whether
such authorization is designated as a franchise, permit, license, resolution, contract, certificate,
agreement, or otherwise, which authorizes the construction or operation of a Cable System. Any
such authorization, in whatever forin granted, shall not supersede the requirement to obtain any other
license or permit required for the privilege of transacting business within the City as required by the
other ordinances and laws of the City.
5.30.120 Franchise agreement.
"Franchise Agreement" means a fanchise grant ordinance or a contractual agreement,
containing the specific provisions of the Franchise granted, including references, specifications,
requirements and other related matters.
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5.30.130 Franchise fee.
"Franchise Fee" means any fee or assessment of any kind imposed by the City on a Grantee
as compensation for the Grantee's use of the Public Rights -of -Way for the provision of Cable
Service. The term "Franchise Fee" does not include:
A. Any tax, fee or assessment of general applicability (including any such tax, fee, or
assessment imposed on both utilities and Cable Operators or their services, but not including a tax,
fee or assessment which is unduly discriminatory against Cable Operators or Cable Subscribers);
B. Capital costs which are required by the Franchise to be incurred by Grantee for Public,
Educational, or Governmental Access Facilities;
C. Requirements or charges incidental to the awarding or enforcing of the Franchise,
including payments forbonds, security funds, letters of credit, insurance, indemnification, penalties,
or liquidated damages; or
D. Any fee imposed under Title 17, United States Code.
5.30.140 Grantee.
"Grantee" means any "Person" receiving a Franchise pursuant to this Ordinance and under
the granting Franchise ordinance or agreement, and its lawful successor, transferee or assignee.
5.30.150 Grantor or city.
"Grantor" or "City" means the City of Morro Bay as represented by the Council or any
delegate, acting within the lawful scope of its jurisdiction.
5.30.160 Gross annual cable service revenges.
"Gross Annual Cable Service Revenues" means the annual gross revenues received by a
Grantee from the operations of the Cable System within the City to provide Cable Service utilizing
the Public Rights- of-Way for which a Franchise is required, excluding refundable deposits, rebates
or credits, and any sales, excise or other taxes or charges imposed externally to the Franchise, and
collected for direct pass - through to local, State or Federal government.
5.30.170 Installation.
"Installation" means the connection of the System to Subscribers' terminals, and the provision
of service.
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5.30.180 Person.
"Person" as used in this code or in any ordinance or code adopted hereby, includes any
person, finn, association, organization, partnership, business trust, company or corporation, and any
municipal, political or govermnental corporation, district, body or agency, other than the city of
Morro Bay.
5.30.190 Public, educational or government access facilities or PEG access facilities.
"Public, Educational or Government Access Facilities" or "PEG Access Facilities" means
the total of the following:
and
A. Channel capacity designated for noncommercial public, educational, or government use;
B. Facilities and equipment for the use of such Channel capacity.
5.30.200 Section.
"Section" means any section, subsection or provision of this Ordinance.
5.30.210 Service area or franchise area.
"Service Area" or "Franchise Area" means the entire geographic area within the municipal
boundaries of the City as it is now constituted or may in the future be constituted, unless otherwise
specified in the Franchise.
5.30.220 Service tier.
"Service Tier" means a category of Cable Service or other services provided by a Cable
Operator and for which a separate rate is charged.
5.30.230 State.
"State" is the state of California.
5.30.240 Street.
"Street" includes all streets, highways, avenues, lanes, alleys, courts, places, squares,
sidewalks, parkways, curbs, or other public ways in the city which have been or may hereafter be
dedicated and open to public use, or such other public property as designated in any law of the state.
5.30.250 Public way or public rights -of -way.
"Public Way" or "Public Rights -of -Way" means each of the following which have been
dedicated to the public or are hereafter dedicated to the public and maintained under public authority
or by others and located within the Service Area: streets, roadways, highways, avenues, lanes,
alleys, sidewalks, casements, rights - of-way and similar public property.
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5.30.260 Subscriber or customer or consumer.
"Subscriber" or "Customer" or "Consumer" means any Person who or which elects to
subscribe to, for any purpose, Cable Service provided by the Grantee by means of or in connection
with the Cable Systern, and who pays the charges therefor.
1V. Franchise Terms and Conditions
5.30.270 Franchise purposes.
A Franchise granted by the City under the provisions of this Ordinance shall encompass the
following purposes:
A. To permit the Grantee to engage in the business of providing Cable Service, and such
other services as may be permitted by law which Grantee chooses to provide to Subscribers within
the designated Service Area.
S. To permit the Grantee to erect, install, construct, repair, rebuild, reconstruct, replace,
maintain, and retain, cable lines, related electronic equipment, supporting structures, appurtenances,
and other property in connection with the operation of the Cable System in, on, over, under, upon,
along and across streets or other public places within the designated Service Area.
C. To permit the Grantee to maintain and operate said Franchise properties for the
origination, reception, transmission, amplification, and distribution of television and radio signals
and for the delivery of Cable Services, and such other services as may be permitted by law.
D. To set forth the obligations of the Grantee under the Franchise.
5.30.280 Franchise required.
After the effective date of this Ordinance, it shall be unlawful for any Person to construct,
install or operate a Cable System in the City within any Public Way without a properly granted
Franchise awarded pursuant to the provisions of this Ordinance.
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5.30.290 Term of the franchise.
A. A Franchise granted hereunder shall be for a term established in the Franchise
Agreement, commencing on the Grantor's adoption of an ordinance or resolution authorizing the
Franchise.
B. A Franchise granted hereunder maybe renewed upon application by the Grantee pursuant
to the provisions of applicable State and Federal law,
5.30.300 Franchise territory.
Any Franchise shall be valid within all the municipal limits of the City, and within any area
added to the City during the term of the Franchise, unless othertivise specified in the Franchise
Agreement.
5.30.310 Federal or state jurisdiction.
This Ordinance shall be construed in a manner consistent with all applicable Federal and
State laws, and shall apply to all Franchises granted or renewed after the effective date of this
Ordinance to the extent permitted by applicable law.
5.30.320 Franchise non - transferable.
A. Grantee shall not sell, transfer, lease, assign or dispose of, in whole of in part, either by
forced or involuntary sale, of by ordinary sale, contract, consolidation or otherwise, the Franchise
of any of the rights or privileges therein granted, without the prior consent of the Council, which
consent shall not be unreasonably denied, withheld or delayed; provided, however, that the prior
consent of the Council shall not be required for an intracorporate or intracompany transfer from one
wholly -owned subsidiary to another wholly -owned subsidiary. Any attempt to sell, transfer, lease,
assign or otherwise dispose of the Franchise without the consent of the Council shall be null and
void, The granting of a security interest in any Grantee assets, or any mortgage or other
hypothecation of by assignment of any fight, title or interest in the Cable System in order to secure
indebtedness, shall not be considered a transfer for the purposes of this section.
B. The requirements of Subsection (a) shall apply to any change in control of Grantee. The
word "control" as used herein includes majority ownership, and actual working control in whatever
manner exercised. hi the event that Grantee is a corporation, prior consent of the Council shall be
required where ownership or control of more than twenty percent (20 %) of the voting stock of the
7
Grantee is acquired by a Person or group of Persons acting in concert, none of whom own or control
the voting stock of the Grantee as of the effective date of the Franchise, singularly or collectively.
C. Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of all
or a substantial part of the Franchise property of the Grantee or upon the termination of any lease
or interest covering all or a substantial part of said Franchise property. Such notification shall be
considered by Grantor as notice that a change in control of ownership of the Franchise has taken
place and the provisions under this Section governing the consent of Grantor to such change in
control of ownership shall apply.
D. For the purpose of dctermining whether it shall consent to such change, transfer, or
acquisition of control, Grantor may inquire into the qualifications of the prospective transferee or
controlling party, and Grantee shall assist Grantor in such inquiry. In seeking Grantor's consent to
any change of ownership or control, Grantee shall have the responsibility of insuring that the Grantee
and/or the proposed transferee complete an application in accordance with Federal Communications
Commission Form 394 or equivalent. Grantor may require Grantee to submit such additional
information as the Grantor may reasonably require to detennine that the proposed transferee
possesses the legal, technical and financial qualifications, or that Grantee is in compliance with all
substantive Franchise requirements. Said Grantor requests shall be made within thirty (30) business
days of receipt of the FCC Fonn 394 or equivalent. An application shall be submitted to Grantor
not less than one hundred twenty (120) days prior to the proposed date of transfer. If the legal,
technical and financial qualifications of the applicant are determined by the Grantor to be
satisfactory, and if Grantor determines that Grantee is in compliance with all substantive Franchise
requirements, the Grantor shall consent to the transfer of the Franchise. If the Grantor has not taken
action on the Grantee's request for transfer within one hundred twenty (120) days after receiving
FCC Form 394 or equivalent, Grantor's consent to such transfer shall be deemed given. The consent
of the Grantor to such transfer shall not be unreasonably denied or delayed. Grantor does not waive
any legal authority it may have to impose conditions on the transfer.
E. Any financial institution having a pledge of the Grantee or its assets for the advancement
of money for the construction and/or operation of the Franchise shall have the right to notify the
Grantor that it or its designee satisfactory to the Grantor shall take control of and operate the Cable
System, in the event of a Grantee default of its financial obligations. Further, said financial
institution shall also agree in writing to continue Cable Service and comply with all Franchise
requirements during the term the financial institution exercises control over the System.
F. Upon transfer, Grantee shall reimburse Grantor for Grantor's reasonable processing and
review expenses in connection with the transfer of the Franchise, including without limitation, costs
of administrative review, financial, legal and technical evaluation of the proposed transferee,
8
consultants (including technical and legal experts and all costs incurred by such experts), notice and
publication costs and document preparation expenses. Any such reimbursement shall not be charged
against any Franchise Fee due to Grantor during the tern of the Franchise.
5.30.330 Geographical coverage.
A. Grantee shall design, construct and maintain the Cable System to have the capability to
pass every residential dwelling unit in the Service Area, subject to any Service Area line extension
requirements of the Franchise Agreement.
B. After service has been established by activating trunk and /or distribution cables for any
Service Area, Grantee shall provide service to any requesting Subscriber within that Service Area
within thirty (30) days from the date of request, provided that the Grantee is able to secure all rights-
of-way necessary to extend service to such Subscriber within such thirty (30) day period on
reasonable terms and conditions.
5.30.340 Nonexclusive franchise.
Any Franchise granted pursuant to this Ordinance shall be nonexclusive. The Grantor
specifically reserves the right to grant, at any time, such additional Franchises for a Cable System,
as it deems appropriate, subject to applicable State and Federal law, provided that if the Grantor
grants an additional Franchise, then the material provisions of any such additional Franchise shall
be reasonably comparable to the terns and conditions contained in the initial Grantee's Franchise,
so that all Grantees are accorded competitively neutral and nondiscriminatory treatment.
5.30.350 Multiple franchises.
A. Grantor may grant any number of Franchises subject to applicable State or Federal law.
Grantor may limit the number of Franchises granted, based upon, but not necessarily limited to, the
requirements of applicable law and specific local considerations, such as:
1. The capacity of the Public Rights-of-Way to accommodate multiple cables in addition to
the cables, conduits and pipes of the utility Systems, such as electrical power, telephone, gas and
sewerage.
2. The benefits that may accrue to Subscribers as a result of Cable System competition, such
as lower rates and improved service.
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3. The disadvantages that may result from Cable System competition, such as the
requirement for multiple pedestals on residents' property, and the disruption arising from numerous
excavations of the Public Rights -of -Way.
B. Where electric and telephone utilities are to be placed underground in any new residential
housing developments, Grantor and the developer of such new residential housing shall give each
Grantee serving the Franchise Area within which the new residential housing development is located
at least ten (10) working days prior written notice of the date on which open trenching will be
available for the Grantce's installation of conduit, pedestals and vaults. On request of the Grantor
or developer, the Grantee shall provide specifications needed for trenching.
C. Grantor may require that any new entrant, non - incumbent Grantee be responsible for its
own underground trenching and the costs associated therewith, if, in Grantor's opinion, the Public
Rights -of -Way in any particular area cannot feasiblely and reasonably accommodate additional
cables.
5.30.350 Franchise modification.
The Grantee may be required to pay any costs incurred by the Grantor in processing a
Grantee request for Franchise modification, lease, hypothecation or trust of Franchise. Such costs
may include the costs incurred for hiring consultants to assist in evaluating the request. Such costs
shall be paid by the Grantee prior to final consideration of the request by the Grantor.
V. Franchise Applications and Renewal
5.30.370 Filing of applications.
Any Person desiring an initial Franchise for a Cable System shall file an application with the
City. A reasonable nonrefundable initial application fee established by the City shall accompany
the initial Franchise application to cover all validly documented reasonable costs associated with
processing and reviewing the application, including without limitation costs of administrative
review, financial, legal and technical evaluation of the applicant, consultants (including technical
and legal experts and all costs incurred by such experts), notice and publication requirements with
respect to the consideration of the application and document preparation expenses. In the event such
validly documented reasonable costs exceed the application fee, the selected applicant(s) shall pay
the difference to the City within thirty (30) days following receipt of an itemized statement of such
costs.
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5.30.380 Applications - contents.
An application for an initial Franchise for a Cable System shall contain, where applicable:
A. A statement as to the proposed Franchise and Service Area;
B. A resume of prior history of the applicant, including the expertise of applicant in the
Cable System field;
C. A list of the partners, general and limited, of the applicant, if a partnership, or the
percentage of stock owned or controlled by each stockholder, if a corporation;
D. A list of officers, directors and managing employees of the applicant, together with a
description of the background of each such Person;
E. The names and addresses of any parent or subsidiary of the applicant or any other
business entity owning or controlling the applicant in whole or in part, or owned or controlled in
whole or in part by the applicant;
F. A current financial statement of the applicant verified by a Certified Public Accountant
audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the City;
G. A proposed construction and set-vice schedule;
H. Any reasonable relevant additional information that the City deems applicable.
5.30.390 Consideration of initial applications.
A. Upon receipt of any application for an initial Franchise, the City Manager or a delegate
shall prepare a report and make recommendations respecting such application to the Council.
B. A public hearing shall be set prior to any initial Franchise grant, at a time and date
approved by the Council. Within sixty (60) days after the close of the hearing, the Council shall
make a decision based upon the evidence received at the hearing as to whether or not the initial
Franchise(s) should be granted, and, if granted, subject to what conditions. The Council may grant
one (1) or more Franchises, or may decline to grant any Franchise.
5.30.400 Franchise renewal.
Franchise renewals shall be in accordance with applicable law. Grantor and Grantee, by
mutual consent, may enter into renewal negotiations at any time during the term of the Franchise.
V1. Minimum Consumer Protection and Service Standards
5.30.410 Operational standards.
A. Except as otherwise provided in the Franchise Agreement, Grantee shall maintain the
necessary facilities, equipment and personnel to comply with the following Consumer protection and
service standards under normal conditions of operation:
1. Sufficient toll -free telephone line capacity during normal business hours to assure
telephone answer time by a Customer service representative, including wait time, shall not exceed
thirty (30) seconds; and callers needing to be transferred within Grantee's operation shall not be
required to wait more than thirty (30) seconds before being connected to a service representative.
Under normal operating conditions, a caller shall receive a busy signal less than three percent (3 %)
of the tinge.
2. Emergency toll -free telephone line capacity on a twenty-four (24) hour basis, including
weekends and holidays. After normal business hours, the telephone calls may be answered by a
service or an automated response system, including an answering machine. Calls received after
normal business hours must be responded to by a trained company representative on the next
business day. During periods when an answering service or machine is used, Grantee shall provide
on -call personnel who shall contact the answering service or machine, at a minimum, every four
hours to check on requests for service or complaints.
3. A conveniently located local business and service and/or payment office open during
normal business hours at least eight (8) hours daily, and at least four (4) hours weekly on evenings
or weekends, and adequately staffed to accept Subscriber payments and respond to service requests
and complaints. The Grantee may petition the Grantor to reduce its business hours if the extended
hours are not justified by Subscriber demand.
4. An emergency Systern maintenance and repair staff, capable of responding to and
repairing major System malfunction on a twenty -four (24) hour per day basis.
5. An installation staff, capable of installing service to any Subscriber requiring a Standard
Installation within seven (7) days after receipt of a request, in all areas where trunk and feeder cable
have been activated. "Standard Installations" shall be those that are located up to one hundred
twenty -five (125) feet fiom the existing distribution System, unless otherwise defined in any
Franchise Agreement.
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6. Grantee shall schedule, within a specified four (4) hour time period during normal
business hours, all appointments with Subscribers for installation of service, service calls and other
activities at the Subscriber location. Grantee may schedule installation and set-vice calls outside of
normal business hours for the express convenience of the Customer. Grantee shall not cancel an
appointment with a Customer after the close of business on the business day prior to the scheduled
appointment. If a Grantee representative is running late for an appointment with a Customer and will
not be able to keep the appointment as scheduled, the Customer shall be contacted as soon as
possible and the appointment rescheduled, as necessary, at a time which is convenient for the
Customer, and within reason.
B. The standards of paragraphs (a)(1) and (a)(2) above shall be met not less than ninety
percent (90 %) of the time measured on a quarterly basis. The standards of paragraphs (a)(4) -(6)
above shall be met not less than ninety -five percent (95 %) of the time measured on a quarterly basis.
C. Grantee shall not be required to acquire equipment or perform surveys to measure
compliance with the telephone answering standards above unless an historical record of complaints
indicates a clear failure to comply.
5.30.420 Service standards.
A. Grantee shall render efficient service, make repairs promptly, and interrupt set-vice only
for good cause and for the shortest time possible. Scheduled interruptions of an anticipated duration
of two (2) consecutive hours or longer, insofar as possible, shall be preceded by notice and shall
occur during a period of minimum use of the Cable System, preferably between midnight and six
A.M. (6:00 A.M.) local time.
B. The Grantee shall maintain a repair force of technicians not�rnally capable of responding
to Subscriber requests for set-vice within the following time frames:
1. For a System outage: Within two (2) hours, including weekends, of receiving Subscriber
calls or requests for service which by number identify a system outage of sound or picture of one (1)
or more channels, affecting at least ten percent (10 %) of the Subscribers of the System,
2. For an isolated outage: Within twenty-four (24) hours, including weekends, of receiving
requests for service identifying an isolated outage of sound or picture for one (1) or more channels
that affects three (3) or more Subscribers. On weekends, an outage affecting fewer than three (3)
Subscribers shall result in a set vice call no later than the next business day.
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3, For inferior signal quality: Within two (2) business days of receiving a request for service
identifying a problem concerning picture or sound quality.
C. In the event a service problem requires a visit to the Subscriber's residence, Grantee shall
be deemed to have responded to a request for service under the provisions of this Section when a
technician arrives at the service location and begins work on the problem. In the case of a Subscriber
not being home when the technician arrives, the technician shall leave written notification of arrival.
D. Grantee shall not charge for the repair or replacement of defective or malfunctioning
equipment provided by Grantee to Subscribers, unless the defect was caused by the Subscriber.
E. Unless excused, Grantee shall determine the nature of the problem within two (2) business
days of beginning work and resolve all Cable System related problems within five (S) business days
unless technically infeasible.
5.30.430 Billing and information standards.
A. Subscriber bills shall be clear, concise and understandable. Bills shall be fully itemized,
with itemizations including, but not limited to, basic and premium service charges and equipment
charges. Bills shall also clearly delineate all activity during the billing period, including optional
charges, rebates and credits.
B. In case of a billing dispute, the Grantee shall respond to a written complaint from a
Subscriber within thirty (30) days.
C. Upon request, Grantee shall provide credits or refunds to Subscribers whose service has
been interrupted for two (2) or more hours for interruption(s) beyond the reasonable control of the
Grantee.
Credits or refunds shall automatically be provided by Grantee on a pro rata basis to any Subscriber(s)
affected by interruption(s) of service for more than two (2) hours due to actions or outages under the
control of the Grantee, exclusive of scheduled repairs or maintenance that Grantee has provided
advance notice of to Subscribers. In cases where notice has been given to Subscribers and the
service interruption exceeds the period detailed in said notice, the provisions of this Section shall
apply.
In the event Grantee has improperly or inadvertently disconnected Cable Services to a Subscriber,
Grantee shall provide for restoration without charge to Subscriber within two (2) days of discovery
of disconnection. Grantee shall credit or provide refunds to any Subscriber improperly or
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inadvertently disconnected from receiving Cable Services for the period of tirne without Cable
Service.
All credits or refunds for service shall be issued no later than the customer's next billing cycle
following the determination that a credit is warranted. For Subscribers terminating service, refunds
shall be issued promptly, but no later than thirty (30) days after the return of any Grantee - supplied
equipment.
D. Grantee shall provide written information on each of the following areas (i) at the time
of the installation of Cable Service, (ii) at least annually to all Subscribers, and (iii) at any time upon
request:
1. Cable Services offered; and
2. Prices and options for programming services and conditions of subscription to
programming and other Cable Services; and
3. Installation and service maintenance policies; and
4. Instructions on how to use the Cable Service; and
5. Channel positions of programming carried on the System; and
6. Billing and complaint procedures, including the address and telephone number of the
Grantor office designated for dealing with cable - related issues.
E. Subscribers shall be notified of any changes in rates, programming services or channel
positions as soon as possible in writing and in accordance with State and Federal Law. Notice must
be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is
within the control of the Grantee. In addition, Grantee shall notify Subscribers thirty (30) days in
advance of any significant changes in the information required in paragraph 5.30.430D above.
5.30.440 Verification of compliance with standards.
A. Upon thirty (3 0) calendar- days prior written notice, Grantee shall respond to a request for
information made by Grantor regarding Grantee's compliance with any or all of the standards
required in Sections 5.30.410, 5.30,420 and 5.30.430 above. Grantee shall provide sufficient
documentation to permit Grantor to verify Grantee's compliance for the previous twenty -four (24)
month period. Grantee may request, and Grantor shall not unreasonably deny, a request for a
reasonable extension of time in which to produce such documentation.
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B. A repeated and verifiable pattern of non - compliance with the Consumer protection
standards of Sections 5.30.410 through 5.30.430 above, after Grantee's receipt of due notice and a
reasonable opportunity to cure, may be deemed a material breach of the Franchise Agreement.
C. In order to determine whether sufficient telephone lines are provided, the Grantor may
require, upon thirty (30) calendar days written notice, the Grantee to submit a report verifying the
adequacy of its telephone line capacity. If Grantee is unable to provide such a report, Grantor may
require that a busy study, traffic study or other study be conducted, at Grantee's expense, if any, by
the local telephone company. Should Grantee have its own telephone equipment which can report
on telephone line(s) usage, the Grantee may submit such report from its own system. The Grantor,
pursuant to Section 5.30.410 C of this Ordinance, may require Grantee to acquire equipment to
determine compliance with the telephone answering standards of this Section VI.
D. Should the Grantor determine that insufficient telephone lines or inadequate staff exists,
Grantee shall take necessary steps to ensure that adequate telephone lines and/or staffing are
available to permit Grantee to satisfy its obligations under this Ordinance and the Franchise.
Consideration shall be given for periods of promotional activities or outages. The monthly billing
period shall be considered as a normal, daily activity for purposes of determining the availability of
adequate telephone lines and /or staffing.
5.30.450 Subscriber complaints and disputes.
A. Grantee shall establish written procedures for receiving, acting upon and resolving
Subscriber complaints without intervention by the Grantor. The written procedures shall prescribe
the manner in which a Subscriber may submit a complaint either orally or in writing specifying the
Subscriber's grounds for dissatisfaction. Grantee shall file a copy of these procedures with Grantor.
The written procedures shall include a requirement that Grantee respond to any written complaint
fi-orn a Subscriber within thirty (30) days of receipt.
B. Upon prior written request, Grantor shall have the right to review Grantee's response to
any Subscriber complaints in order to determine Grantee's compliance with the Franchise
requirements, subject to the Subscriber's right to privacy.
C. Subject to applicable law, it shall be the right of all Subscribers to continue receiving
Cable Service insofar as their financial and other obligations to the Grantee are honored. In the event
that the Grantee elects to rebuild, modify, or sell the System, or the Grantor gives notice of intent
to terminate or not to renew the Franchise, the Grantee shall act so as to ensure that all Subscribers
receive Cable Service so long as the Franchise remains in force.
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D. In the event of a change of control of Grantee, or in the event a new operator acquires the
System, the original Grantee shall cooperate with the Grantor, new Grantee or operator in
maintaining continuity of service to all Subscribers. During such period, Grantee shall be entitled
to the revenues for any period during which it operates the Systern.
E. Grantee response to Subscriber complaints, as well as complaints made by Subscribers
to Grantor and provided by Grantor to Grantee, shall be initiated within one (1) business day of
receipt by Grantee. The resolution of Subscriber complaints shall be effected by Grantee not later
than three (3) business days after- receipt of the complaint. For complaints received by Grantor and
provided by Grantor to Grantee, Grantee shall notify Grantor of Grantee's progress in responding
to, and resolving, said complaints.
5.30.460 Other requirements.
A. In the event Grantee fails to operate the Systern for seven (7) consecutive days other than
for reasons beyond the control of Grantee, without prior approval or subsequent excuse of the
Grantor, the Grantor may, at its sole option, operate the System or designate an operator until such
time as Grantee restores service under conditions acceptable to the Grantor or a permanent operator
is selected. If the Grantor should fulfill this obligation for the Grantee, then during such period as
the Grantor fulfills such obligation, the Grantor shall be entitled to collect all revenues from the
System, and the Grantee shall reimburse the Grantor for all reasonable costs or damages in excess
of the revenues collected by Grantor that are the result of Grantee's failure to perform.
B. All officers, agents or employees of Grantee or its contractors or subcontractors who, in
the normal course of work come into contact with members of the public or who require entry onto
Subscribers' premises shall carry a photo - identification card. Grantee shall account for all
identification cards at all times. Every vehicle of the Grantee or its major subcontractors shall be
clearly identified as working for Grantee.
C. Additional service standards and standards governing Consumer protection and response
by Grantee to Subscriber complaints not otherwise provided for in this Ordinance may be established
in the Franchise Agreement or by separate ordinance. A verified and continuing pattern of
noncompliance may be deemed a material breach of the Franchise, provided that Grantee shall
receive due process, including prior written notification and a reasonable opportunity to cure, prior
to any sanction being imposed.
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VII. Franchise Fee and Financial Requirements
5.30.470 Franchise fee.
A. Following the issuance and acceptance of the Franchise, the Grantee shall pay to the
Grantor a Franchise Fee on Gross Annual Cable Service Revenues in the amount and at the times
set forth in the Franchise Agreement.
B. In the event that any Franchise Fee payment or payment of any adjustment to any
Franchise Fee is not made on or before the dates specified in the Franchise Agreement, Grantee shall
pay:
1. An interest charge, computed from such due date, at an annual rate equal to the highest
of the most recently published prime lending rate of any of the five (5) largest member banks of the
New York Clearing House Association, plus two percent (2 %) during the period for which payment
was due; and
2. If the payment is late by ninety (90) days or more, a sum of money equal to five percent
(5 %) of the amount due in order to defray those additional expenses and costs incurred by the
Grantor due to Grantee's delinquent payment.
C. In the event Grantee overpays its Franchise Fee, the Grantee shall notify the Grantor in
writing, and provide sufficient documentation to verify the alleged overpayment. Upon written
authorization by the Grantor, the Grantee may begin deducting the amount overpaid beginning with
the next Franchise Fee payment due frorn Grantee to Grantor, and Grantee may continue to deduct
the amount paid on subsequent Franchise Fee payments until the amount overpaid is fully
reimbursed to Grantee,
D. The Grantor, on an annual basis, shall be furnished a staternent within ninety (90) days
of the close of the calendar year, either audited and certified by an independent certified public
accountant or certified by an officer of the Grantee, reflecting the total amounts of gross revenues
and all payments, deductions and computations for the period covered by the payment.
E. Franchise fee payments shall be made in accordance with the schedule indicated in the
Franchise Agreement.
F. Except as otherwise provided by law, no acceptance of any payment by the Grantor shall
be construed as a release or as an accord and satisfaction of any claim the Grantor may have for
further or additional surns payable as a Franchise Fee under this Ordinance or for the performance
of any other obligation of the Grantee.
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5.30.480 Franchise fee audit.
Upon thirty (30) days prior written notice, Grantor shall have the right to conduct an
independent financial audit of Grantee's Gross Annual Cable Service Revenues and Franchise Fee
records, in accordance with Generally Accepted Accounting Procedures (GAAP), and if such audit
indicates a Franchise Fee underpayment of two percent (2 %) or more, the Grantee shall assume all
reasonable documented costs of such audit.
5.30.490 Security fund.
A. Grantor may require Grantee to provide a security fiend, in an amount and form
established in the Franchise Agreement. The amount of the security fund shall be established based
on the extent of the Grantee's obligations under the terms of the Franchise.
B. The security fund shall be available to Grantor to satisfy all claims, liens and/or- taxes due
Grantor from Grantee which arise by reason of construction, operation, or maintenance of the
System, and to satisfy any actual or liquidated damages arising out of a material breach of the
Franchise Agreement, subject to the procedures and amounts designated in the Franchise Agreement.
C. if the security fund is drawn upon by Grantor in accordance with the procedures
established in this Ordinance and the Franchise Agreement, Grantee shall cause the security fund to
be replenished to the original amount no later than thirty (30) days after receiving written
confirmation frorn the bank where such security fund is deposited that Grantor has made a draw
against the security fund. Failure to replenish the security fund shall be deemed a material breach
of the Franchise.
VIII. Construction Requirements
5.30.500 System construction.
A. Grantee shall not construct any Cable Systern facilities until Grantee has secured the
necessary permits fioni Grantor, or other responsible public agencies. The Grantee shall be subject
to all permit and bonding requirements applicable to contractors working within the Public Rights -
of -Way. No provision of this Ordinance or the Franchise Agreement shall be deemed a waiver of
the obligation of a Grantee to pay Grantor for the issuance of a permit.
B. In those areas of the City where transmission lines or distribution facilities of the public
utilities providing telephone and electric power service are underground, the Grantee likewise shall
construct, operate and maintain its transmission and distribution facilities underground.
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C. In those areas of the City where the Grantee's cables are located oil the above - ground
transmission or distribution facilities of the public and /or municipal utility providing telephone or
electric power service, and in the event that the facilities of both the telephone and electric power
utilities subsequently are placed underground, then the Grantee likewise shall reconstruct, operate
and maintain its transmission and distribution facilities underground, at Grantee's cost, provided,
however, that if Grantee is required by the Grantor to place any of Grantee's pre- existing above-
ground Cable System underground, the Grantee shall be allowed to recover from Subscribers such
reasonable and documented undergrounding costs in the manner prescribed by and in accordance
with Federal and State law and regulation. Certain of Grantee's existing equipment, such as
pedestals, amplifiers and power supplies, which normally are placed above ground, may continue
to remain in above - ground enclosures, unless otherwise provided in the Franchise Agreement.
D. Any changes in or extensions of any poles, anchors, wires, cables, conduits, vaults,
laterals or other fixtures and equipment (herein referred to as "Structures "), or the construction of
any additional Structures, in, upon, along, across, under or over the Streets, alleys and Public Ways
shall be made under the direction of Grantor's City Manager or the City Manager's designee, who
shall, if the proposed change, extension or construction conforms to the provisions hereof, issue
written permits therefor within thirty (30) days of receiving a complete permit application. The
height above public thoroughfares of all aerial wires shall conform to the requirements of the
California regulatory body having jurisdiction thereof.
1. All transmission and distribution structures, lines and equipment erected by the Grantee
shall be located so as not to interfere with the proper use of the Public Rights -of -Way, and to cause
minimum interference with the rights or reasonable convenience of property owners who adjoin any
of the said Public Rights-of-Way, and not to materially interfere with existing public and municipal
utility installations.
2. Upon issuance of a written finding by the Grantor that any property or improvement of
the Grantor in the Public Rights -of -Way is disturbed or damaged by the Grantee or any of its
contractors, agents or employees in connection with undertaking any and all work pursuant to the
rights granted to the Grantee pursuant to this Ordinance and the Franchise Agreement, the Grantee
shall promptly, at the Grantee's sole cost and expense, restore as nearly as practicable to at least their
former condition and to the Grantor's reasonable satisfaction said property or improvement which
was so disturbed or damaged. If such property or improvement becomes uneven, unsettled or
otherwise require additional restorative work, repair or replacement because of the initial disturbance
or damage to the property by the Grantee, then the Grantee, as soon as reasonably possible, shall,
promptly upon receipt of written notice fiom the Grantor and at the Grantee's sole cost and expense,
restore as nearly as practicable to at least their former condition and to the Grantor's reasonable
20
satisfaction said property or improvement which was disturbed or damaged. Any such restoration
by the Grantee shall be made in accordance with such materials and specifications as may, from time
to time, be established by the Grantor.
3. Prior to commencing any work on the System in the Public Rights -of -Way, the Grantee
shall obtain any and all permits, licenses and authorizations lawfully required for such work. If
emergency work on the System in the Public Right- of-Way is required, the Grantee shall with all
due diligence, seek to obtain any and all such required permits, licenses and authorizations within
seven (7) calendar days after commencing such emergency work.
4. There shall be no unreasonable or unnecessary obstruction of the Public Rights -of -Way
by the Grantee in connection with any of the work provided for herein. The Grantee shall maintain
any barriers, signs and warning signals during any work performed on or about the Public Rights-of-
Way or adjacent thereto as may be necessary to reasonably avoid injury or damage to life and
property.
5. If the Grantor lawfully elects to alter or change the grade or location of any Public Right -
of -Way, the Grantee shall, upon reasonable notice by the Grantor, and in a timely manner, remove,
relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at it
own expense. If, however, other similarly situated users of such Public Rights -of -Way are
compensated or reimbursed for any of the cost associated with the removal, relay or relocation of
any equipment or facilities, Grantee shall be entitled to compensation in kind.
6. The Grantee shall not place poles, conduits or other fixtures above or below ground where
the same will interfere with any gas, electric, telephone fixtures, water hydrants or other utility, and
all such poles, conduits or other fixtures placed in any street shall be so placed as to comply with all
ordinances of the Grantor.
7. In accordance with applicable law, the Grantee or any utility user of the Public Rights -of-
Way may be required by the Grantor to permit joint use of its poles and /or conduit located in the
Public Rights -of -Way, by any authorized user insofar as such joint use may be reasonably
practicable and upon payment of a reasonable rental fee for such usage. In the absence of agreement
regarding such joint use, each party shall be entitled to exercise any rights and defenses provided by
applicable law.
8. The Grantee, on request of any Person holding a moving permit issued by the Grantor,
shall temporarily raise or lower its wires or fixtures to pen-nit the moving of buildings. The expense
of such ternporary raising or lowering of wires or fixtures shall be paid by the Person requesting the
same, and the Grantee shall have the authority to require such payment in advance. The Grantee
21
shall be given not less than ten (10) business days prior written notice to arrange for the temporary
wire or equipment changes.
9. The Grantee shall have the authority to trim any trees or other natural growth overhanging
the Public Rights -of -Way so as to prevent the branches of such trees or other natural growth from
coming in contact with the Grantee's wires, cables and other equipment. The Grantor may require
all trimming of trees and natural growth to be done under its supervision and direction, at the
expense of the Grantee.
10. Grantee shall be subject to any and all requirements established by the Grantor with
regard to the location, either above ground or underground, as well as screening of Grantee's
facilities and equipment located in the Public Rights -of -Way. Such requirements may include, but
not be limited to, use of landscaping to screen pedestals and cabinets and requiring that construction
be flush with the natural grade of the surrounding area.
5.30.510 Multiple franchises.
A. Subject to applicable law, in the event that more than one (1) Franchise is awarded, the
Grantor reserves the right to limit the number of unused drop cables per residence.
B. The Grantor reserves the right to grant an encroaclunent permit to a Cable Franchisee
applicant to install conduit and/or cable in anticipation of the granting of a Franchise. Such
installations shall be at the applicant's risk, with no recourse against the Grantor in the event the
pending Franchise application is not granted. The Grantor may require an applicant to provide a
separate trench for its conduit and /or cable, at the applicant's cost.
C. If the Grantor authorizes or perinits another Cable System to operate within the municipal
limits of the City, it shall do so on conditions that such new Cable System entrant indemnify and
hold harmless the initial Grantee from and against all costs and expenses incurred in strengthening
poles, replacing poles, rearranging attaclnnents, placing underground facilities and all other costs
including those of the initial Grantee, the City and utilities, incident to inspections, make ready, and
construction of an additional Cable System in the Franchise Area; and the initial Grantee shall be
designated a third party beneficiary of such conditions as are incorporated into the authorization(s)
granted to such new entrant Cable System.
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IX. Technical Standards
5.30.520 Applicable technical standards.
A. The Grantee shall construct, install, operate and maintain its Cable System in a manner
consistent with all applicable laws, ordinances, construction standards, governmental requirements,
FCC technical standards, and any detailed standards set forth in its Franchise Agreement. In
addition, the Grantee shall provide to the Grantor, upon written request, a written report of the results
of the Grantee's periodic proof of performance tests conducted pursuant to FCC and Franchise
standards and guidelines.
B. Should the FCC no longer require proof of performance tests, the Grantee shall snake and
submit such equivalent proof of performance tests and reports in response to a written request from,
the Grantor. Such report shall be submitted to the Grantor within sixty (60) days of issuance of the
Grantor request.
C. Repeated and verified failure to maintain specified technical standards shall constitute
a material breach of the Franchise.
5.30.530 Costs of technical assistance.
The Grantee shall pay all reasonable costs actually incurred by the Grantor for obtaining any
technical assistance deemed necessary by the Grantor for independent verification of technical
compliance with applicable technical standards. The Grantee shall be obligated to pay for such
technical review not more frequently than once per any thirty -six (36) month period.
X. Indemnification and Insurance Requirements
5.30.540 Hold harmless.
Grantee shall indernnify, defend and hold Grantor, its officers, agents and employees
harmless from any liability, claims, damages, costs or expenses, to the extent provided in the
Franchise Agreement.
5.30.550 Insurance.
A. On or before commencement ofFranchise operations, the Grantee shall furnish to Grantor
Certificates of Insurance for liability, Workers' Compensation and property insurance, in the
coverage limits provided in the Franchise Agreement, from appropriately qualified insurance
23
companies, which shall be "admitted" in the State of California. The Certificates of Insurance shall
provide that the insurance is in force and will not be canceled or modified without thirty (30) days
prior written notice to Grantor. The Certificates of Insurance shall be in a form satisfactory to
Grantor. The Grantee shall maintain at its cost throughout the term of the Franchise, the insurance
required herein and in any Franchise Agreement:
B. The policy of liability insurance shall:
1. Name Grantor, its officers, agents and employees as additional insureds;
2. Indemnify all liability for personal and bodily injury, death and damage to property
arising from activities conducted and pre3nises used pursuant to this Ordinance by providing
coverage therefor, including but not limited to:
(a) Negligent acts or omissions of Grantee, and its agents, servants and employees,
committed in the conduct of Cable System operations, and /or
(b) Use of motor vehicles;
3. Provide a combined single limit for comprehensive general liability and comprehensive
automobile liability insurance in the amount provided for in the Franchise Agreement.
C. The policy of Workers' Compensation Insurance shall comply with the laws of the State
of California.
D. The policy of property insurance shall provide fire insurance with extended coverage on
the Cable System property used by Grantee in the conduct of Cable System operations in an amount
adequate to enable Grantee to resume Cable System operations following the occurrence of any risk
covered by this insurance.
expire;
The Certificates of Insurance shall indicate the following information:
(1) The policy number;
(2) The date upon which the policy will become effective and the date upon which it will
(3) The names of the primary insureds and any additional insured required by the Franchise
Agreement;
(d) The subject of the insurance;
(5) The type of coverage provided by the insurance; and
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(6) The amount or limit of coverage provided by the insurance.
If the Certificates of Insurance do not provide all of the above information, Grantor reserves
the right to inspect the relevant insurance policies.
E. The commencement of Franchise operations shall not begin until Grantee has complied
with the aforementioned provisions of this Section.
F. In the event Grantee fails to maintain any of the above- described policies in full force and
effect, Grantor shall, upon three (3) business days notice to Grantee, have the right to procure the
required insurance and recover the cost thereof from Grantee. Grantor shall also have the right to
suspend the Franchise during any period that Grantee fails to maintain said policies in full force and
effect. In order to account for increases in consumer prices, no more than once during any five (5)
year period, Grantor shall have the right to order Grantee to increase the amounts of the insurance
provided in the Franchise Agreement. Such order may be made by Grantor after conducting a duly
noticed public hearing. Increases in insurance coverage shall be based upon current prudent business
practices of like enterprises involving the same or similar risks.
XI. Records and Reports
5.30.560 Records required.
A. Grantee shall at all times maintain;
1. A written or computer - stored record of all service calls and interruptions or degradation
of service experienced for the preceding two (2) years, provided that such complaints result in or
require a service call, subject to the Subscriber's right of privacy.
2. A full and complete set of record drawings showing the locations of the Cable System
installed or in use in the City, exclusive of Subscriber service drops and equipment provided in
Subscriber's homes.
3. If requested by Grantor, a summary of service calls,. identifying the number, general
nature and disposition of such calls, on a monthly basis. A surnmary of such service calls shall be
submitted to the Grantor within thirty (30) days following any written request by Grantor, in a form
reasonably acceptable to the Grantor.
4. If requested by Grantor, a complaint record which shall contain a semi - annual (through
June 301 and December 3151) breakdown indicating the total number of complaints received for the
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preceding reporting period, and shall indicate the classifications of complaints as follows:
construction, billing, customer relations /service and miscellaneous.
5. A full and complete record of rates for Cable Services, such as programming services,
equipment, installations and other Subscriber charges. This information shall include, but not be
limited to, rates for the Basic Service Tier, Tiers of service beyond the Basic Tier, premium service,
pay - per -vie-,v services, late fees, additional outlets, converters, remote controls and any charges for
installation or service at the Subscriber premises.
B. The Grantor may impose requests for additional information, records and documents from
Grantee, provided they reasonably relate to the scope of the City's rights under this Ordinance or the
Grantee's Franchise Agreement.
C. Upon reasonable written notice, and during normal business hour's, Grantee shall permit
examination by any duly authorized representative of the Grantor of all:
1. Cable System property and facilities, together with any appurtenant property and facilities
of Grantee situated within the Service Area; and
2. All records relating to the operation of the Cable System, provided they are necessary to
enable the Grantor to carry out its regulatory responsibilities under this Ordinance or the Franchise
Agreement. Grantee shall have the right to be present at any such examination.
5.30.570 Annual reports.
A. Within one hundred twenty (120) days after the end of the calendar year, Grantee shall,
upon written request made within thirty (30) days of the close of the calendar year, submit a written
report to Grantor with respect to the preceding calendar year in a form approved by Grantor,
including, but not limited to, the following information:
1. A surnmary of the previous year's (or in the case of the initial reporting year, the initial
year's) activities in development of the Cable System, including but not limited to, Cable Services
begun or discontinued during the reporting year;
2. A list of Grantee's officers and members of its board of directors;
3. A list of stockholders or other equity investors holding five percent (5 %) or more of the
voting interest in Grantee;
4. An indication of any residences in Grantee's Service Area where service is not available,
and a schedule for providing service;
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S. Information as to
(a) the number of homes passed;
(b) total Subscribers; and
(c) the number of Basic and Pay Subscribers.
6. Any other information relevant to Franchise regulation which the Grantor shall reasonably
request, and which is relevant to its regulatory responsibilities.
B. Upon written request, Grantee shall submit to Grantor copies of all pleadings,
applications and reports submitted by Grantee to any Federal, State or local court, regulatory agency,
or other governmental body as well as copies of all decisions issued in response to such pleadings,
applications and reports, which are non - routine in nature and which will materially affect its Cable
System within the Franchise Area.
C. Information otherwise confidential by law and so designated by Grantee, which is
submitted to Grantor, shall be retained in confidence by Grantor and its authorized agents and shall
not be made available for public inspection. Notwithstanding the foregoing, Grantee shall have no
obligation to provide copies of documents to Grantor which contain trade secrets of Grantee or
which are otherwise of a confidential or proprietary nature to Grantee unless it receives satisfactory
assurances from Grantor that such information can and will be held in strictest confidence and
protected by the Grantor. To the extent possible, Grantee may provide Grantor with summaries of
any required documents or copies thereof with trade secrets and proprietary matters deleted
therefrom. The burden of proof shall be on Grantee to establish the confidential nature of any
information submitted, to the reasonable satisfaction of the Grantor.
D. If Grantee or its parent is publicly held, Grantee shall, upon written Grantor request,
submit a copy of Grantee's or Grantee's parent's publicly filed annual or quarterly financial statement
within forty -five (45) days of such a request.
E. Upon Grantor's written request, but no more than annually, Grantee shall submit to
Grantor a privacy report indicating the degree of compliance with the provisions contained in
Section 5.30.710C, D and F herein and all steps taken to assure that the privacy rights of individuals
have been protected.
F. All reports required under this Ordinance, except those required by law to be kept
confidential, shall be available for public inspection in the Grantor's offices during normal business
hours.
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G. All reports and records required to be delivered to Grantor under this Ordinance shall be
furnished at the sole expense of Grantee, except as otherwise provided in the Franchise Agreement.
H. The willful refusal, failure, or willful negligence of Grantee to file any of the reports
required as and when due under this Ordinance, may be deemed a material breach of the Franchise
Agreement if such reports are not provided to Grantor within sixty (60) days after written request
therefor, and may subject the Grantee to all remedies, legal or equitable, which are available to
Grantor under this Ordinance or the Franchise Agreement.
1. Any materially false or misleading statement or representation made knowingly and
willfully by the Grantee in any report required under this Ordinance or under the Franchise
Agreement may be deemed a material breach of the Franchise and may subject Grantee to all
remedies, legal or equitable, which are available to Grantor.
5.30.580 Opinion survey.
Upon written request of the Grantor, but not more than once every two (2) years, the Grantee
shall conduct a Subscriber satisfaction survey pertaining to quality of service, which may be
transmitted to Subscribers in Grantee's invoice for Cable Services. The results of such survey shall
be provided to the Grantor on a timely basis. The cost of such survey shall be borne by the Grantee.
XII. Review of System Performance
5.30.590 Biannual review.
A. Every two (2) years throughout the term of the Franchise, if reasonably requested by prior
written notice from the Grantor, Grantor and Grantee shall meet publicly to review System
performance and quality of service. The various reports required pursuant to this Ordinance, results
of technical performance tests, the record of Subscriber complaints and Grantee's response to those
complaints, and the information acquired in any Subscriber surveys, shall be utilized as the basis for
review. In addition, any Subscriber may submit comments or complaints during the review
meetings, either orally or in writing, and these shall be considered. Within thirty (30) days after the
conclusion of such a review meeting, Grantor may issue findings with respect to the Cable System's
Franchise compliance and quality of service.
B. If Grantor determines that Grantee is not in compliance with the requirements of this
Ordinance or the Grantee's Franchise Agreement, Grantor shall provide Grantee, in the form of
written findings, the specific details of each alleged noncompliance. Grantor may then direct
28
Grantee to correct the areas of noncompliance within a reasonable period of time, but not less than
thirty (30) days. Failure of the Grantee, after due notice, to:
or
1. Correct the area(s) of noncompliance within the period specified therefor; or
2. Commence compliance within such period and diligently achieve compliance thereafter;
3. Demonstrate that the allegations of noncompliance are incorrect;
shall be considered a material breach of the Franchise, and Grantor may exercise any remedy
within the scope of this Ordinance and the Franchise Agreement considered appropriate under the
circumstances.
5.30.600 Special review.
When there have been extensive complaints made or where there exists other demonstrative
evidence which, in the reasonable judgment of the Grantor, casts reasonable doubt on the reliability
or quality of Cable Service to the effect that the Grantee is not in compliance with the requirements
of this Ordinance or its Franchise, the Grantor shall have the right to compel the Grantee to test,
analyze and report on the performance of the Cable System in order to protect the public against
substandard Cable Service. Grantor may not compel Grantee to provide such tests or reports unless
and until Grantor has provided Grantee with at least thirty (30) days prior written notice of its
intention to exercise its rights under this Section Xll and has provided Grantee with an opportunity
to be heard prior to its exercise of such rights. Such test or tests shall be made and the report shall
be delivered to the Grantor no later than thirty (30) days after the Grantor notifies the Grantee in
writing that it is exercising such right, and shall be inade at Grantee's sole cost. Such report shall
include the following information: The nature of the complaints which precipitated the special tests,
what System component was tested, the equipment used and procedures employed in said testing,
the results of such tests, and the method by which such complaints were resolved. Any other
information pertinent to the special test shall be recorded.
XIII. Franchise Violations
5.30.610 Remedies for violations.
If Grantee fails to perform in a timely manner- any material obligation required by this
Ordinance or a Franchise granted hereunder, following reasonable written notice from the Grantor
29
and a reasonable opportunity to cure such nonperformance in accordance with the provisions of
Section XIII of this Ordinance and the Franchise, Grantor may at its option and in its sole discretion:
A. Cure the violation and recover the actual cost thereof fiom the security fund established
in the Franchise Agreement if such violation is not cured within thirty (30) days after written notice
to the Grantee of Grantor's intention to cure and draw upon the security fund;
B. Assess against Grantee liquidated damages in an amount set forth in the Franchise
Agreement for any such violations(s) if such violation is not cured, or if Grantee has not commenced
a cure, on a schedule reasonably acceptable to Grantor, within thirty (30) days after written notice
to the Grantee of Grantor's intention to assess liquidated damages. Such assessment may be
withdrawn from the security fund, and shall not constitute a waiver by Grantor of any other right or
remedy it may have under the Franchise or applicable law, including without limitation, its right to
recover from Grantee such additional damages, losses, costs and expenses, including actual
attorney's fees, as may have been suffered or incurred by Grantor by reason of or arising our of such
material breach of the Franchise.
5.30.620 Procedure for remedying franchise violations.
Prior to imposing any remedy or other sanction against Grantee specified in this Ordinance,
Grantor shall give Grantee notice and opportunity to be heard on the matter, in accordance with the
following procedures:
A. Grantor shall first notify Grantee of the alleged violation in writing by personal delivery
or registered or certified mail, and demand correction, or evidence of non - violation, within a
reasonable time, which shall not be less than fifteen (15) business days in the case of the failure of
the Grantee to pay any sum or other amount due the Grantor under this Ordinance or the Grantee's
Franchise and thirty (30) business days in all other cases. If Grantee fails to:
1. Correct the alleged violation within the time prescribed; or
2. Commence correction of the alleged violation within the tune prescribed and diligently
remedy such alleged violation thereafter; or
3. Provide evidence that there is no violation,
the Grantor shall then give, by personal delivery or registered or certified mail written notice
of not less than thirty (30) days of a public hearing to be held before the Council. Said notice small
set forth in detail each of the violations alleged to have occurred.
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B, Subsequent to the public hearing, the Council shall hear and consider all other relevant
evidence, and thereafter render findings and its decision.
C. If the Council finds that
1. The Grantee has corrected the alleged violation; or
2. The Grantee has diligently commenced correction of such alleged violation after notice
thereof and is diligently proceeding to fully remedy such alleged violation; or
3. No material violation has occurred,
the proceedings shall terminate and no penalty or other sanction shall be imposed.
D. If the Council finds that material violations exist and that Grantee:
1. Has not corrected the same in a satisfactory manner; or
2. Has not diligently commenced correction of such violation after notice thereof and is not
diligently proceeding to fully remedy such violation;
then the Council may impose one ( 1) or more of the remedies provided in this Ordinance and
the Franchise Agreement as it, in its discretion, deems appropriate under the circumstances.
5.30.630 Grantor's power to revoke.
A. Grantor may revoke any Franchise granted pursuant to this Ordinance and rescind all
rights and privileges associated with it in the following circumstances, each of which shall represent
a default by Grantee and a material breach under the Franchise:
1. If Grantee fails to perform any of its material obligations under this Ordinance or the
Franchise Agreement and continues such failure to perform after receipt of due notice and a
reasonable opportunity to cure;
2. If Grantee fails to provide or maintain in full force and effect the insurance coverage or
security fund as required in the Franchise Agreement;
3. If Grantee violates any order or ruling of any regulatory body having jurisdiction over the
Grantee relative to the Grantee's Franchise, unless such order or ruling is being contested by Grantee
in good faith in an appropriate proceeding;
a
4. If Grantee knowingly practices any material fraud or deceit upon Grantor;
5. If Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a
bankrupt.
B. After completing the procedures set forth in Section 5.30.620 above, the Grantor may
snake a forinal request before the Council that the Grantee's Franchise be revoked. The Council shall
cause to be served on the Grantee written notice of its intent to consider revoking Grantee's
Franchise. Such notice shall be served on Grantee at least sixty (60) days prior to the date of the
hearing on the issue. The notice shall contain the time and place of the hearing and shall be
published at least once in a newspaper of general circulation within the Franchise area ten (10) days
prior to the Bearing date.
C. The Council shall hear any Person(s) interested in the revocation and within ninety (90)
days after the date of the hearing shall make its determination, based on a preponderance of the
evidence, whether the Grantee has committed a material breach of the Franchise.
D. If the Grantor determines that the Grantee has committed a material breach, then the
Grantor may:
1. Declare the Franchise revoked and any security fund and bonds forfeited; or
2. If the material breach is curable by the Grantee, direct the Grantee to take appropriate
remedial action within the time and manner and under the terrors and conditions reasonably specified
by the Grantor.
The termination and forfeiture of the Grantee's Franchise shall in no way affect any right of
Grantor to pursue any remedy under the Franchise or any provision of law.
5.30.640 Appeal of finding of revocation.
The Grantee may appeal a finding of revocation made pursuant to Section 5.30.630 to an
appropriate court of jurisdiction, which shall have the power to review "de novo." Any such appeal
must be initiated by the Grantee within sixty (60) days of the issuance of the Grantor's decision to
revoke the Franchise.
32
XIV, Force Majeure; Grantee's Inability to Perform
In the event Grantee's performance of any of the terms, conditions or obligations required
by this Ordinance or a Franchise granted hereunder is prevented by a cause or event not within
Grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions
shall be imposed as a result thereof; provided, however, that such inability to perform shall not
relieve a Grantee from the obligations imposed by Section 5.30,430C. pertaining to refunds and
credits for interruptions in service. For the purpose of this Section, causes or events not within the
control of Grantee shall include without limitation acts of God, war, strikes, sabotage, riots or civil
disturbances, labor disputes, restraints imposed by order of a governmental agency or court,
explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and
fires, but shall not include financial inability of the Grantee to perforin or failure of the Grantee to
obtain any necessary permits or licenses from other governmental agencies or the right to use the
facilities of any public utility where such failure is due solely to the acts or omissions of Grantee,
or the failure of the Grantee to secure supplies, services or equipment necessary for the installation,
operation, maintenance or repair of the Cable System where the Grantee has failed to exercise
reasonable diligence to secure such supplies, services or equipment.
XV. Abandonment or Removal of Franchise Property
5.30.650 Abandonment or removal.
A. If the Grantee discontinues the use of any of its property within the Public Rights -of -Way
for a continuous period of twelve (12) months, such property shall be deemed to have been
abandoned by Grantee. Any part of the Cable System that is parallel or redundant to other parts of
the System and is intended for use only when needed as a backup for the System or a part thereof,
shall not be deemed to have been abandoned because of its lack of use.
B. Grantor, upon such reasonable terms as Grantor may lawfully impose, may give Grantee
permission to abandon, without removing, any System facility or equipment laid, directly
constructed, operated or maintained under the Franchise. Unless such permission is granted or
unless otherwise provided in this Ordinance, the Grantee shall remove all abandoned above - ground
facilities and equipment upon receipt of written notice from Grantor and shall restore to Grantor's
reasonable satisfaction any affected Public Right -of -Way to at least its former state at the time such
facilities and equipment were installed. In removing its plant, structures and equipment, Grantee
shall refill, at its own expense, any excavation that shall be made by it and shall leave all Public
Rights -of -Way in as good condition as that prevailing prior to such removal without materially
interfering with any electrical or telephone cable or other utility wires, poles, or attachments.
33
{' f
� 1
Grantor shall have the right to inspect and approve the condition of the Public Rights -of -Way,
cables, wires, attachments and poles prior to and after removal. The liability, indemnity and
insurance provisions of this Ordinance and the security fund as provided herein shall continue in full
force and effect during the period of removal and until full compliance by Grantee with the terms
and conditions of this Section 17.1.
C. Upon the approved abandonment of any Cable System property, the Grantee, if required
by the Grantor, shall submit to the Grantor an instrument, satisfactory in form to the Grantor,
transferring to the Grantor the ownership of the abandoned Cable System property.
D. At the expiration, without renewal or extension, of the term for which the Franchise is
granted, or upon its revocation, as provided herein, the Grantor shall have the right to require
Grantee to remove, at its own expense, all above - ground portions of the Cable System from all
streets and public ways within the Service Area within a reasonable period of time, which shall not
be less than one hundred eighty (180) days.
E. Notwithstanding anything to the contrary set forth in this Ordinance, the Grantee may
abandon any underground Cable System property in place so long as it does not materially interfere
with the use of the Public Rights- of-Way in -,vhich such property is located or with the use thereof
by any public utility or other Franchise bolder.
5.30.660 Restoration by grantor: reimbursement of costs.
Upon reasonable written notice and upon the failure of the Grantee to commence, pursue or
complete any work to be done in any Public Right -of -Way required by law or by the provisions of
this Ordinance or the Franchise Agreement, within the time prescribed and to the reasonable
satisfaction of the Grantor, the Grantor may cause the work to be commenced and /or completed. The
Grantor shall provide to the Grantee an itemized work order setting forth in detail the exact nature
of the work completed and the supplies used in such work. The Grantee shall pay to the Grantor the
reasonable costs for such work no later than thirty (30) days after receipt of the itemized work order.
5.30.670 Extended operation and continuity of services.
Upon expiration or revocation of the Franchise, the Grantor shall have the discretion to
permit Grantee to continue to operate the Cable System for an extended period of time. Grantee
shall continue to operate the System under the terms and conditions of this Ordinance and the
Franchise and to provide the regular Subscriber service and any and all of the Cable Services that
may be provided at that time, It shall be the right of all Subscribers to continue to receive all
available Cable Services provided that financial and other obligations to Grantee are honored. The
34
Grantee shall use reasonable efforts to provide continuous, uninterrupted service to its Subscribers,
including operation of the System during transition periods following Franchise expiration or
termination.
5.30.680 Receivership and foreclosure.
A. At the option of the Grantor and subject to applicable law, a Franchise granted hereunder
may be revoked one hundred twenty (120) days after appointment of a receiver(s) or trustee(s) to
take over and conduct the business of Grantee, whether in a receivership, reorganization, bankruptcy
or other action or proceeding, unless:
1. The receivership or trusteeship shall have been vacated within said one hundred twenty
(120) days; or
2. Such receivers or trustees within said one hundred twenty (120) days shall have remedied
all the defaults under the Franchise or provided a plan for the remedy of such defaults which is
satisfactory to the Grantor; or
3. Such receivers or trustees shall, within said one hundred twenty (120) days, have executed
an agreement duly approved by the court having jurisdiction whereby such receivers or trustees
assume and agree to be bound by each and every term, provision and limitation of the Franchise.
B. In the case of a foreclosure or other judicial sale of the Cable System, in whole or in part,
the Grantor may serve notice of revocation upon Grantee and the successful bidder at such sale, and
all rights and privileges of the Grantee hereunder shall be revoked thirty (30) days after service of
such notice, unless:
and
1. A transfer request has been submitted by Grantee for Grantor review; or
2. Grantor shall have approved the transfer of the Franchise, in the manner provided by law;
3. The successful bidder shall have covenanted and agreed with Grantor to assume and be
bound by all terms and conditions of the Franchise.
35
XV1. Grantor and Subscriber Rights
5.30.680 Reservation of grantor rights.
In addition to any rights specifically reserved to the Grantor by this Ordinance, the Grantor
reserves to itself every right and power which is required to be reserved by a provision of any
ordinance or under the Franchise.
5.30.690 Waiver.
A. The Grantor shall have the right to waive any provision of the Franchise, except those
required by Federal or State regulation, if the Grantor determines (1) that it is in the public interest
to do so, and (2) that the enforcement of such provision will impose an undue hardship on the
Grantee or on the Subscribers. To be effective, such waiver shall be evidenced by a statement in
writing signed by a duly authorized representative of the Grantor. Waiver of any provision in one
(1) instance shall not be deemed a waiver of such provision subsequent to such instance nor be
deemed a waiver of any other provision of the Franchise unless the statement so recites.
B. The Grantee shall not be excused from complying with any of the requirements of this
Ordinance or the Franchise Agreement by any failure of the Grantor on any one or more occasions
to require or seek compliance with any such terms or conditions.
5.30.700 Rights of individuals.
A. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers,
channel users, or general citizens on the basis of race, color, religion, national origin, age or sex.
Grantee shall comply at all times with all other applicable Federal, State and local laws and
regulations relating to nondiscrimination.
B. Grantee shall adhere to the applicable equal employment opportunity requirements of
Federal, State and local regulations, as now written or as amended from time to time.
C. Unless directed or conducted by an authorized law enforcement agency, which has
obtained all necessary permits, neither Grantee, nor any Person, or entity shall, without the
Subscriber's consent, tap, or arrange for the tapping, of any cable, line, signal input device, or
Subscriber outlet or receiver for any purpose except routine maintenance of the System, detection
of unauthorized service, polling with audience participation, or audience viewing surveys to support
advertising research regarding viewers where individual viewing behavior cannot be identified.
36
D. In the conduct of providing its Cable Services or in pursuit of any collateral commercial
enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a
Subscriber's or general citizen's right of privacy or other personal rights through the use of the
System as such rights are delineated or defined by applicable law. The Grantee shall not without
lawful court order or other applicable valid legal authority utilize the System's interactive two -way
equipment or capability, if such equipment or capability exists, for unauthorized personal
surveillance of any Subscriber or general citizen.
E. No cable line, wire amplifier, converter, or other piece of equipment owned by Grantee
shall be installed by Grantee in the Subscriber's premises, other than in appropriate easements,
without first securing any required consent. If a Subscriber requests service, permission to install
upon Subscriber's property shall be deemed granted.
F. The Grantee, or any of its agents or employees, shall not sell, or otherwise make available
to any party without consent of the Subscriber pursuant to State and Federal privacy laws:
1. Any list of the names and addresses of Subscribers containing the names and addresses
of Subscribers who request in writing to be removed from such list; and
2. Any list which identifies the viewing habits of individual Subscribers, without the prior
written consent of such Subscribers. This does not prohibit the Grantee from providing composite
ratings of Subscriber viewing to any party.
XVIL Severability
If any provision of this Ordinance is held by any court or by any Federal or State agency of
competent jurisdiction, to be invalid as conflicting with any Federal or State law, rule or regulation
now or hereafter in effect, or is held by such court or agency to be modified in any way in order to
conform to the requirements of any such law, rule or regulation, such provision shall be considered
a separate, distinct, and independent part of this Ordinance, and such holding shall not affect the
validity and enforceability of all other provisions hereof In the event that such law, rule or
regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision
thereof which had previously been held invalid or modified is no longer in conflict with such law,
rule or regulation, said provision shall thereupon return to full force and effect and shall thereafter
be binding on Grantor and Grantee, provided that Grantor shall give Grantee thirty (30) days written
notice of such change before requiring compliance with said provision or such longer period of time
as may be reasonably required for Grantee to comply with such provision.
37
INTRODUCED at a regular meeting of the City Council of Morro Bay, held on the 12th day
of March 2001 by motion of Councilmember Crotzer seconded by Councilmeniber
Elliott .
PAST AND ADOPTED on the 26 day of March — 2001, by the following vote:
AYES: Anderson, Crotzer, Elliott, Peirce, Peters
NOES: None
ABSENT: None
ATTEST:
BRIDGE'" BAUER, City Clerk
APPROVED AS TO FORM:
ROBERT SCHULT4'_)pity Attorney
38
'zlle01
l
RSID-aR ANDERSON, Mayor