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HomeMy Public PortalAboutOrd. 1253ORDINANCE N0. 1253 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LYNWOOD AMENDING ORDINANCE NOS. 1134 AND 1149 WHICH GRANTED AND ESTABLISHED TERMS FOR A CABLE TELEVISION FRANCHISE THE CITY COUNCIL OF THE CITY OF LYNWOOD DOES ORDAIN AS FOLLOWS: SECTION 1. Recitals. The City Council of the City of Lynwood finds, determines and declares: (a) The City Council previously enacted Ordinance No. 1134, which granted a non-exclusive franchise for a cable television system in the City to California Cable- systems, Inc.; and (b) The said Ordinance No. 1134 was subsequently amended by Ordinance No. 1149, which modified the initial terms and conditions of the franchise; and (c) As the result of negotiations based upon actual operating results as well as future projections, the City of Lynwood desires to make certain further amendments to the franchise terms and conditions in an effort to insure .the future viability of cable service for the residents of the City. SECTION 2. Section 5.5 of Ordinance No. 1134 "Faithful Performance Bond" is hereby amended to read as follows: "5.5 Faithful Performance Bond. Upon the effec- tive date o t e Franchise, as amended, Grantee shall furnish proof of the posting of a faithful performance bond, which may be a corporate surety bond, running to the Grantor, in the penal sum of $150,000. The faithful performance bond shall be in a form approved by the City Attorney. Upon demonstration by Grantee to the satis- faction of Grantor, pursuant to the procedure that follows, that all the construction to be undertaken in the City pursuant to the Franchise Agreement has in fact been completed and the system is fully operational, the bond shall be reduced to a sum of $60,000. Such bond for a sum of $60,000 shall be maintained by the Grantee throughout the term of this Franchise. As prerequisites to the reduction of the performance bond to $60,000, Grantee shall within 180 days from the effective date of this Ordinance, demon- , strate to the reasonable satisfaction of Grantor that: (a) Good faith efforts have been made to obtain owner permission for the wiring of all multiple units in the City; and (b) All multiple units, for which permission to enter and wire has been obtained, have been wired; and (c) Within 90 days all governmental buildings for which service has been requested will be provided cable drops and service per the Grantee's franchise proposal. All governmental buildings will be provided service within 90 days of request for such service; and (d) All residential units, other than multiple units for which the owner has not granted permission to enter and wire, are capable of receiving cable service. Where Grantee claims that circumstances beyond its control delay or prohibit service to isolated pockets of homes, it shall present a specific plan for the offering of service to these homes prior to any reduction in the performanr_e bond." SECTION 3. Section 7.4 of Ordinance No. 1134 is hereby amended to read as follows: "7.4 Capacity for Interactive Residential Services. Grantee shall provide, in the initial system configuration, the capacity for interactive residential services including, but not limited to, security alarm monitoring, home shopping, energy management, home banking, teletext, information access and retrieval, subscriber polling, video games and one-way or inter- active education. All customer equipment necessary for such services, such as addressable interactive converters, home terminals and home detectors, shall be provided to subscribers by Grantee in accordance with established and uniform rate schedules. Grantee shall not be required to activate the interactive residential capability until December 24, 1985. At that time, Grantor may continue to delay the activation of interactive services if it determines that activation is not technically or economically feasible. If Grantor determines that activation of interactive services is both technically and economically feasible, it may require activation after December 24, 1985." SECTION 4. Section 7.5 of Ordinance No. 1134 is hereby amended to read as follows: "7.5 Capacity for Institutional Services. Grantee shall provide, in the initial system configuration, the capacity for one-way and interactive institutional communications services including, but not limited to, video, voice and data communications. The system shall have the capacity to provide a full range of channeliza- tion and multiplexing options to meet the needs of the broadest spectrum of institutional users. The system shall provide all features reasonably necessary to main- tain message privacy and security, which may include, but is not limited to, addressable taps and converters, data encryption and signal scrambling. Grantee shall provide and maintain all Grantee provided customers-premises equipment necessary to interface with the cable communications system at a cost to be determined by Grantee. Equipment commercially available and not directly linked to the cable system, such as data terminals, video cameras and microphones, may be supplied by Grantee or, provided no harm is caused or results to the cable communications system, by the cable system user. Grantee shall not be required to activate the insititutional services, nor build the institutional network until December 24, 1985. At that time, Grantor may require construction and activation of the originally proposed network or acceptable alternatives if it determines that the construction and operation of an institutional network are techinically and economi- cally feasible as well as in accordance with the regula- tions of the Public Utilities Commission and the Federal Communications Commission. When Grantor reviews the economic and technical feasibility of the institutional network, it shall give due consideration to any alterna- tive proposals Grantee may wish to make for delivery of institutional services, including, but not limited to, the delivery of these services on the residential network. Grantor may also continue to authorize delay in construction of the institutional network if it determines that such delay is warranted due to a lack of technical or economic feasibility." SECTION 5. Section 15 of Ordinance No. 1134 is hereby deleted in its entirety and replaced with the following: "15.1 Grantor, in compliance with the Cable Communications Policy Act of 1984 and California law governing eminent domain and upon payment of fair market value, may condemn the Franchise, property and plant of Grantee." SECTION 6. Section 5 of Ordinance No. 1134 is amended by adding a new Section 5.10 to read as follows: "5.10 Periodic Reports. During such time as Grantor allows Grantee to reduce its support for local programming pursuant to Section 9.2(e) hereof, or to defer construction of a single trunk institutional network and/or provision of activated bidirectional 3 communications on the residential network, Grantor shall have the right to require Grantee to provide additional information. At a minimum, Grantee shall provide to Grantor: (a) Grantee's marketing plan for Fiscal Year 1985 by no later than thirty (30) days after the adoption of this Ordinance. (b) In July 1985, Grantee shall provide a mid-year financial status report. (c) Grantee shall submit within four months of the close of every one of its fiscal years, an annual report to Grantor. Said report shall include an audited finan- cial statement of Rogers Cablesystems of California, Inc. Said report shall also include financial state- ments of the system serving Downey, Bell Gardens, Lynwood, Paramount and Santa Fe Springs. The local system financials need not be audited but shall be prepared by the same accounting firm which prepares the audited financial statements for Rogers Cablesystems of California, Inc." SECTION 7. Until December 31, 1985, Section 9.2 of Ordinance No. 1134 is suspended and replaced in the interim with the following language: "9.2 Grantee Support for Local Programmi~. Grantee shall provide support for local programming, as a minimum: (a) Reasonable, scheduled use of all cablecasting access facilities by non-commercial, tax-exempt organizations at no charge. (b) Payment to Grantor or a non-profit corporation to be designated by Grantor the total sum of 4% of Grantee's gross revenues received and attributable to Lynwood in calendar year 1984, plus the sum of $20,000. 4% of gross revenues + $20,000 = Total Due Grantor Said sum shall be paid on or before June 30, 1985. This represents a temporary reduction in Grantee's local programming support payments, pursuant to Section 9.2 hereof, otherwise due for 1985. Said funds are specifically provided in full satisfaction of capital and operating requirements for local programming for the calendar year 1985, provided, however, that nothing in 4 this Agreement shall relieve Grantee of the requirement to make the scheduled local programming payment as required on or about December 24, 1985 as required in Section 9.2 of Ordinance No. 1134, as amended by Ordinance No. 1149. Unless the Grantor and Grantee agree on an extension of these revised franchise terms, Section 9.2 as adopted by Ordinance No. 1134 shall again become effective January 1, 1986. SECTION 8. This Ordinance amending and adding to Ordinance No. 1134 of the City of Lynwood is enacted in light of the current financial situation of the Grantee, Rogers Cablesystems of California, Inc., and in reliance on the integrity and ability of its parent Rogers U.S. Cablesystems, Inc. to perform pursuant to this Ordinance. Accordingly, this Ordinance may be immediately repealed, at Grantor's option, should Grantee assign its rights, duties and obliga- tions under the Franchise to any other person or entity. Assignment shall be deemed to include, but not be limited to, (1) the transfer or sale of any stock of Grantee from Rogers U.S. Cablesystems, Inc. to any third party, (2) the assign- ment of the assets of Grantee, including this Franchise, to any third party, or (3) the merger, dissolution, consolida- tion, or other reorganization of Grantee, including the crea- tion of any limited partnership. SECTION 9. The Federal "Cable Communications Policy Act of 198 c4 ontains several provisions treating cable television system franchises in effect on the date of the Federal Act differently than franchises granted after the Federal Act. By enacting this Ordinance, which amends and adds to Ordinance No. 1134 of the City of Lynwood, neither Grantor nor Grantee intend that the Franchise be construed as a new Franchise outside of the scope of the "grandfather" clauses of the Federal Act. SECTION 10. The Grantee and its Parent Corporation shall, within sixty (60) days after passage of this Ordinance, file in the office of the City Clerk a written acceptance of this Ordinance executed by Grantee and its Parent Corporation, in a form approved by the City Attorney. The Parent Corporation, by executing and filing the Acceptance, guarantees performance by Grantee of all Grantee's obligations hereunder and agrees to perform those obligations on Grantee's behalf, if so ordered by Grantor, in the event Grantee for any reason which is within its control or reasonably foreseeable fails to perform them. The Acceptance shall include a provision stating that the Grantee and its Parent Corporation recognize that this Ordinance does not affect the status of the Franchise as a preexisting franchise within the meaning of the Federal "Cable Communica- tions Policy Act of 1984" and further stating that the Grantee and its Parent Corporation shall not contend other- wise in any judicial or administrative proceeding. Failure of Grantee and its Parent Corporation to accept the Franchise 5 as provided herein shall cause this Ordinance to become null and void. SECTION 11. TheCity Clerk is hereby ordered and directed to certify to the passage of this ordinance and to cause the same to be published once in the Lynwood Press, a newspaper of general circulation, printed, published and circulated in the City of Lynwood. First read at a regular meeting of the City Council of said City held on the 7th day of May 1985, and finally ordered published at a regular meeting of said Council held on the 21st day of May , 1985. AYES: COUNCILMEN HENNING, MORRIS, ROWE, BYORK NOES: NONE ABSENT: COUNCILMAN THOMPSON . /'y-~'' ~'~ 6~~"'~ OHN D. BYOB , Mayor City of Lynwood ATTEST: ANDREA L. HOOPER; City Cker~~ City of Lynwood APPROVED AS TO FORM: ~ -~.~ E. KURT YEAGER„City torney SECOND REVISED FRANCHISE AGREEMENT AND ACCEPTANCE OF TERMS AND CONDITIONS WHEREAS, the City of Lynwood, a California municipal corporation (the "Grantor"), by action of its governing body, adopted Ordinance No. 1134, a Cable Television Franchise Ordinance (the "Ordinance"), granting to California Cable- systems, Inc., a California corporation (now known as Rogers Cablesystems of California, Inc.) (the "Grantee"), a non- exclusive franchise to construct, operate and maintain a cable communications system (the "System") within the City; and WHEREAS, Grantor and Grantee have previously entered into a Franchise Agreement and Acceptance of Terms and Conditions and a First Revised Franchise Agreement and Acceptance of Terms and Conditions; and WHEREAS, the parties now desire to further amend the Franchise Agreement in a joint effort to insure the future viability of cable service to the residents of Lynwood; NOW, THEREFORE, Grantor and Grantee do hereby mutually covenant and agree to the following amendments to the Franchise Agreement and Acceptance: 1. This Second Revised Franchise Agreement and Acceptance of Terms and Conditions contains revisions to the terms and conditions of an existing franchise granted by the City of Lynwood. The parties do not intend to create a new franchise by agreeing to the following revised terms and conditions. 2. Grantee and its Parent Corporation, by execution of this Second Revised Franchise Agreement, accept and agree to be bound by each and every term, condition and provision of Ordinance No. 1134, as amended by Ordinances No. 1149 and true and correct copies of which are attached as Exhibits "A", "B" and "C", respectively and incorporated herein by this reference. 3. The Parent Corporation of Grantee, ROGERS U.S. CABLESYSTEMS, INC., by execution of this Agreement and Acceptance, guarantees performance by Grantee of all Grantee's obligations pursuant to Ordinance No. 1134, as amended by Ordinances No. 1149 and and the Second Revised Franchise Agreement and Acceptance. ROGERS U.S. CABLESYSTEMS, INC., as Parent Corporation of Grantee, agrees to perform any such obligation on Grantee's behalf, if so ordered by Grantor, in the event Grantee fails to perform such obligation. 4. For calendar year 1985, Grantee shall pay to the City of Lynwood or a non-profit corporation to be designated by the City, the total sum of 4% of Grantee's gross revenues received and attributable to Lynwood in calendar year 1984, plus the sum of $20,000. 4% of gross revenues + 520.00 = Total Due Grantor Said sum shall be paid on or before June 30, 1985. This represents a temporary reduction in Grantee's local programming support payments otherwise due for 1985. Said 2 funds are specifically provided in full satisfaction of capital and operating requirements for local programming for the calendar year 1985, provided, however, that nothing in this Agreement shall relieve Grantee of the requirement to make the scheduled local programming payment as required on or about December 24, 1985 as required in Section 9.2 of Ordinance No. 1134, as amended by Ordinance No. 1149. 5. For the period January 1, 1985 through December 31, 1985, the cities of Bell Gardens, Lynwood, Paramount and Santa Fe Springs hereby contract with Rogers Cablesystems of California, Inc. for the provision of local origination programming and assistance to public access programming in these cities. The total joint commitment from the cities is in the amount of $55,000 for the calendar year 1985. Said amount is payable as follows: $27,500.00 Covering January 1, 1985 through June 30, 1985 due on or before June 30, 1985 $27,500.00 Covering July 1, 1985 through December 31, 1985 due September 1, 1985 The cities agree to share this joint cost based upon their respective percentages of households (potential) in the System: 24.2% Bell Gardens 36.3% Lynwood 28.6% Paramount 10.9% Santa Fe Springs For the foregoing $55,000 per year, Grantee agrees to: 3 (a) Keep the Downey studio open and accessible and for "overflow" access, subject to reasonable advanced scheduling. (b) Keep the Lynwood studio available and staffed pursuant to a schedule to be mutually agreed upon, with a technician capable of assisting those persons wishing to utilize the Lynwood facility. (c) Provide normal maintenance for the existing access equipment and mobile van. City participation would be required for any major upgrading or replacement of access equipment. (d) The mobile van will be kept available for potential access users subject to reasonable advanced scheduling and supervision. (e) Continue local origination programming of general interest to the cities at a level to be determined by Grantee. 6. The cities agree that they will make individual production and payment arrangements with Grantee for local origination projects that they wish Grantee to undertake in their cities. 7. The Access Coordinator Agreement between the parties is terminated, effective December 31, 1984. Upon the delivery of proper documentation to support the Access Coordinator invoicing by Grantee, Grantor agrees to pay said invoice within thirty (30) days of the execution thereof. 8. Prior to this Agreement Grantee paid to Grantor $235,248 pursuant to Section 9.2 of Ordinance No. 1149 for 4 the first and second years of the Cable Television Franchise. Grantee and its Parent Corporation hereby agree to release and waive any past, present or future claims, causes of action or rights they now have or which may hereafter accrue on account of or in any way arising out of the manner in which the Grantor has utilized or will utilize this $235,248 plus any interest accrued thereon. 9. This Agreement shall be effective only for the period January 1, 1985 through and including December 31, 1985. The Agreement may be extended from year to year by the written consent of both parties. DATED: (D _~~ _~ ~ ROGERS CABLESYSTEMS OF CALIFO NIA, INC. By ~ ~ .i -- ""~^'l DATED: (p -/©- 8~" DATED : S- ~ --l ~:r' ATTEST: Title ~'`~y~ Q... \ ROGERS .S. CABL~STE S~C. By \J J Title ~~Q.S ~ 17.C rte, \ CITY LYNWO~OD~~ MAYOR CITY ,CLERK ~~ 5 '. ' , . STATE OF CALIFORPJIA ) ss. COUPIT`f OF LOS A~~;G~L~S ) i, the und2rsicned, City Clem a. the City o-' Lynwoar,', and 2X-OTT~1C10 Cl°r!<. ~]r the COUnCII Oi~ Shcd C7tJ, d0 hereoy Certi'y thgt th? agave is a true and correct copy ar Ordinance ~~o. _ 1253__adopt2d ~y the City Ccuncii a-" the City n," Lynwaad, and that the same was passed ar, the date and b;i the vct2 therein stated. Dated this 24tSz day Of May lc:Qr, Ig~~L) C~f~T,~~~-~~~ ` `''' -~ • C ~ ty C i 2r!t , Ci tyior Lynsvaod