Loading...
HomeMy Public PortalAboutOrd. 1091~~ _ - ORDII7ANCE A'O. 1091 Atd ORDIP7ANCE OF THE CITY OF LYNja'OOD ADDING CHAPTER 10 TO THE CODE OF THE CITY OF LYNWOOD ESTABLISHING A PRO- CEDURE FOR THE GRANTING OF FRANCHYSES FOR CABLE TELEVISION SYSTEMS THE CITY COUNCIL OF TAE CITY OF LYNWOOD DOES ORDAIN AS FOLLOWS: SECTION I. Chapter 10 hereby is added to the Code of the City of Lynwood to read as follows: _ CHAPTER 10 COh1MUNITY ANTENiIA TELEVISION SYSTEMS SECTION 10-1 - Definitions= For the purposes of this chapter, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singu- lar number, and words in the singular number include the plural number: (a) "City" shall mean the City of Lynwood, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or re-incorporated form. (b) "City Engineer" shall mean the city engineer or any other person appointed to carry out any of the powers and duties assigned to the city engineer in this ordinance. (c) "City Manager" shall mean the city manager or any other person appointed to carry out any of the powers and duties assigned to the city manager in this ordinance. (d) "Council" shall mean the present governing body of the City of Lynwood or any future board constituting the legislative body of the City. (e) "Franchise" shall mean and include any authoriza- tion granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, operate and main- tain a cable television system within all or a specified area' in the City. Any such authorization, in whatever form granted, shall not mean and include any license or permit required for the privilege of transacting and carrying on a business within the City as required by other ordinances and laws of this City. (f) "Person" shall mean any natural person and all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, business or common law trusts, and societies. (g) "Grantee" shall mean the person, firm or corporation granted a franchise by the Council under this ordinance, and 'the lawful successor,-transferee or assignee of said person, firm or corporation. _ (h) "Street" shall mean the surface, the air space above the surface and the area below the surface of any public street, other public right of way or public place, including public utility easements. (i) "Property of Grantee" shall mean all property owned, installed, or used within the City by a Grantee in the conduct of a cable television system business under the authority of a franchise granted pursuant to this chapter. (j) "Subscriber" or "User" shall mean any person or entity receiving for any purpose any service of the Grantee's cable-television system including;-:.but not limited to, the conventional cable television system service of retransmission of television broadcast, radio signals, Grantee's original cablecasting, and the local government, education and public access channels; and other services, such as leasing of channels, data and facsimile_trahsmission, pay television, and police, fire and similar public service communication. (k) "Cable television system" and "CATV" for the purpose of this chapter, are terms describing a system employing antennae, micro-wave, wires, wave-guides, coaxial cables, or other conductors, equipment or facilities, design- ed, constructed or used for the purpose of: (1) collecting and amplifying local and distant broadcast television or radio signals and distributing and transmitting them; (2) transmitting original cablecast programming not received through television broadcast signals; (3) transmitting television pictures, film and video-tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers; . _. (4) transmitting and receiving all other signals: digital, voice and audio-visual; provided, however, that any of .the services, permitted here- under to be performed, as described above, shall be those performed by the Grantee for subscribers, as herein defined, in the operation of a cable television or CATV system fran- chised by the City and not otherwise. SECTION 10-2 - Franchise to install and operate. (a) A non-exclusive franchise to install, construct, operate, and maintain a cable television system on streets within all or a specific portion of the City may be granted by the Council to any person, whether or not operating under an existing franchise, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter. -2- No provision of this chapter may be deemed. or construed as to_sequire the granting of..a_franchise when in the opinion of the Council it is in the public interest to restrict the number of Grantees to one or more. (b) When and in the event that the Grantee of any franchise granted hereunder uses in his cable television system distribution channels furnished to the Grantee by a telephone company pursuant to tariff or contract on file with a regulatory body having jurisdiction and said Grantee makes no use of the streets independent of such telephone company-furnished facilities, said Grantee shall be required to comply with all of the provisions hereof as a "Licensee" and in such event whenever the term "Grantee" is used herein it shall be deemed to mean and include "Licensee". SECTION. 10.-3 - Cable television,service. (a) Basic Service. The cable television system permitted to be installed and operated hereunder shall: __ _.__ (1) be operationally capable of relaying to subscriber terminals those television and radio broadcast signals for .the carriage of which the Grantee is now or hereafter authorized by the Federal Communications Commission; (2) be constructed with the potential of two-way digital -signal transmission; (3) distribute color television signals which it receives in color; (4) provide at least one (1) channel, without charge, for exclusive use of the City; (5) provide at least one (1) channel each for educational and public access uses; (6) the operator of each such system shall make available all other unused channels, in ad- dition to those which are part of the system's activated channel capability, for the purposes specified in paragraphs (4) and (5): Provided, however, that in making available such additional channels the system operator shall be under no obligation to install converters. (b) Non-basic services. The cable television system permitted.to be installed and :operated hereunder, may also engage in the business of: (1) transmitting original cablecast programming not received through television broadcast signals; (2) transmitting television pictures, film and video-tape programs, not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers or subscribers; (3) transmitting and receiving all other signals: digital, voice and audio-visual. -3- (c) Subscriber complaints. In addition to other -service regulations adopted by the Council ,. and excepting circumstances beyond Grantee's control, such as natural disasters, riots and civil disturbances, and in providing the foregoing services, the Grantee shall: (1) limit system failures to minimum time duration by locating and correcting malfunctioning promptly, but in no event longer than twenty- four (24) hours after occurrence, irrespective of holidays or other non-business hours; (2) upon complaint by a subscriber, make a demon- stration satisfactory to the city engineer that a signal is being delivered which is of sufficient strength and quality to meet the ., - standards set forth in the regulations of the Federal Communications Commission, or in regulations hereafter adopted by the Council; (3) render efficient service, making repairs promptly and interrupting service only for good cause and for the shortest time possible. Planned interruptions, insofar as possible, shall be preceded by notice given to subscribers twenty-four (24) hours in advance and shall occur during periods of minimum use of the system; (4) maintain an office in the city or in-the general area, which office shall be open during all the usual business hours, with its telephone listed in directories of the tele- phone company serving the city, equipped with toll-free telephone service and be so operated that complaints and requests for repairs or adjustments may be received toll-free at any time, day or night, seven days a week; (5) maintain a written record, or "log", listing date of customer complaints, identifying the subscriber and describing the nature of the complaint, and when and what action was taken by Grantee in response thereto; said record shall be kept at Grantee's local office, for a period of five (5) years from the date when the system is first energized, and shall be available for inspection during regular business hours, without further notice or demand, by the city engineer. (d) Municipal service. (1) With respect to the local government channel; the Grantee shall provide,, at the request of the city engineer, and upon City reimbursement of Grantee's actual cost, use of Grantee's studio, equipment and technical services for production of live and video-tape municipal programs, subject to scheduling requirements of the Grantee; -4- (2) With respect fo the basic television services, the Grantee shall provide all subscriber services, and a tie-in connection, without cost, when the system passes such facilities and as designated by the Counc il, to (i) public schools and community colleges within the City, and (ii) buildings owned and controlled by the City, used for public purposes and not for residential use (fire and police stations excepted). (e) Compatibility and connectibility. -- - (1) It is .the desire of the City that all cable television systems franchised hereunder shall, insofar as financially and technically possible, be compatible one with another and with systems adjacent, to the City. (2) Wherever it is financially and technically _feasible, the Grantee shall so construct, operate and modify the system so as to tie the same into all other systems within and adjacent to the City. (f) Uses permitted. Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the Grantee to engage in the business of operating and providing a cable television system in the City, and for that purpose to install, construct, repair, replace, recon- struct, maintain and retain in, on, under, upon, across and along any street, such wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, and appliances, attachments, and other property as may be necessary and appurtenant to the cable television system; and, in addition, so to use, operate, and provide similar facilities or proper- ties rented or leased from other persons, firms or corpora- tions, including but not limited to any public utility or other Grantee franchised or permitted to do business in the City. SECTION 10-4. Franchise payments. (a) In consideration of the granting and exercise of a franchise to use the streets, as herein defined, for the operation of a cable television system, any Grantee shall pay to the City, during the life of the franchise, three (3) percent of the franchisee's gross revenues per year from all cable services in the City except that, to the extent that the Federal Communications Commission, in its Rules and Regulations, at some time in the future allows a City to raise the franchise fee to 5~ absent the showings currently required by Section 76.31 of the Rules and Regulations of the Federal Communications Commission, the City reserves the right to increase the franchise fee to a level of 5~. (b) The percentage payments shall be made in the manner, amounts and at times directed in said franchise or in a Council resolution fixing franchise fees and adopting rules for service and rate regulation: r5- (c) No acceptance of any payment shall be construed as a release or an accord and satisfaction of any claim the City may have for further or additional sums payable under this ordinance or for the performance of any other obligation hereunder. SECTION 10-5 - Franchise term: duration and termination (a) The franchise granted by the Council under this ordinance shall be for a term of fifteen (15) years from the date of its acceptance by the Grantee. (b) The City may terminate any franchise granted pursuant to the provisions of this ordinance in the event of the willful failure, refusal or neglect by Grantee to do or comply with any material requirement or limitation contained `in'fhis ordinance;'or any material rule or regulation of the Council or city engineer validly adopted pursuant to this ordinance. (c) -The city engineer may make written demand that the Grantee do or comply with any~such requirement, limitation, term, condition, rule or regulation. If the failure, refusal or neglect of the Grantee continues for a period of thirty (30) days following such written demand,. the city engineer may place his request for termination of the franchise upon the next regular Council meeting agenda. The city engineer shall cause to be served upon such Grantee, at least ten (10) days prior to the date of such Council meeting, a written notice of his intent to request such termination, and the time and place of the meeting, notice of which shall be published by the city clerk at least once ten (10) days before such meeting in a newspaper of general circulation within the city. (d) The Council shall consider the request of the city engineer and shall hear any persons interested therein, and shall determine, in its discretion, whether or not any failure, refusal or neglect by the Grantee was with just cause. (e) If such failure, refusal or neglect by the Grantee was with just cause, the Council shall direct the Grantee to comply within such time and manner and upon such terms and conditions as are reasonable. (f) If the Council shall determine such failure, refusal or neglect by the Grantee was without just cause, then the Council may, by resolution, declare that the franchise of such Grantee shall be terminated and forfeited unless there be compliance by the Grantee within such period as the Council may fix. (g) The termination and forfeiture of any franchise shall in no way effect any of the rights of the City under the franchise or any provision of law.- - (h) In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the prior consent of the City, expressed by resolution, the Grantee shall pay to the City reasonable compensation and damages, of not less than one hundred percent (100€) of its gross revenue during said period. -6- SECTION 10-6 - Applications for franchise. (a) Each application for a franchise to construct, operate, or maintain any cable television systems in this City shall be filed with the city clerk and shall contain or be accompanied by the following: (1) The name, address, and telephone number of the applicant; (2) A detailed statement of the corporate or other business entity organization of the applicant, including but not limited to, the following and to whatever extent required by the City: (i) The 'names,, residence and business addresses "' ~ of all officers", directors, and associates of the applicant. (ii) The names, residence and business addresses of all officers, persons and entities ' having, controlling, or being entitled to have or control of 58 or more of the '~ ownership of the applicant and the respective ownership share of each such person or entity. (iii) the names and addresses of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable television systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby. (iv) a detailed description of all previous experience of the applicant in providing cable television system service and in related or similar fields. (v) a detailed and complete financial state- ment of the applicant, prepared by a certified public accountant, for the fiscal year next preceding the date of the applica- tion hereunder, or a letter or other accept- able evidence in writing from a recognized lending institution or funding .source, addressed to both the applicant and the Council, setting forth the basis for a study performed by such lending institution ' or funding source, and a clear statement of its intent as a lending institution - or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the City, or a statement from -7- a.certifed ublic accountant certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed system in this City. (vi) a statement identifying, by place and date, any other cable television fran- chise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such system(s)- and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof. (b) A detailed description, of the proposed plan of operation of the applicant which shall include, but not be limited to, the following: (1) a detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire ~area to be served. (2) a statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges and service charges. (3) a detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant and that such standards of operations are in compliance with those contained in Title 47, Subpart K (Section 76.601 et seq.), of the Rules and Regulations of the r^ederal Com- munications Commission. (4) a copy of the form of any agreement, under- taking, or other instrument proposed to be entered into between the applicant and any subscriber. (5) a detailed statement setting forth in its entirety any and all agreements and under- takings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm, or corporation which materially .relate or pertain to or depend upon the application and the granting of the franchise. (c) A copy of any agreement covering the franchise area, if existing between the applicant and any public utility subject to regulation by the California Public Utilities Commission providing for the use of any facilities of the public utility, including but not limited to poles, lines, or conduits. Y -8- (d) Any other details, .statements, information or -references pertinent to the subject matter of such application which shall be required or requested by the Council, or by any provision of any other ordinance, rule or regulation of the City. (e) An application fee in the sum of $1,500.00 which shall be in the form of cash, certified or cashier's check, or money order, to pay the costs of studying, investigating and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part; provided, that any applicant who shall deliver to the City Clerk a written withdrawal of or cancel- lation of any application hereunder, not later than the seventh (7th) day next following the day such application is received by the City Clerk, shall be entitled to-have re- __..___.. _ ., turned. and refunded the sum_ofx$3,000.00.1ess any actual costs or expenses incurred by the City by reason of such application. (f) The Council may, by advertisement or any other means, solicit and call for applications for cable television system franchises, and may determine and fix any date upon or after which._the same shall be received 'by the City, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determinations and specify any other times, terms, conditions, or limitations respecting the soliciting, calling for,. making and receiving of such applications. The Grantee shall pay to the City a sum of money sufficient to reimburse if for all publication expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this ordinance. Such payment shall be made within thirty (30) days after the City furnishes the Grantee with a written statement of such expenses. (g) Upon receipt of any application for franchise, the Council shall refer the same to the city engineer who shall prepare a report and make his recommendations respecting such application, and cause the same to be completed and filed with the Council within thirty (30) days. (h) In making any determination hereunder as to any application the Council may give due consideration to the quality of the service proposed, rates to subscriber, income to the City, experience, character, background, and financial responsibility of any applicant, and its management and owners, technical and performance quality of equipment, willingness and ability to meet construction and physical requirements, and to abide by.policy conditions, franchise limitations and requirements, and any other considerations deemed pertinent by the Council for safeguarding the interests of the City and the public. The Council, in its discretion shall determine the award of any franchise on the basis of such considerations and without competitive bidding. _ __. __ ____ If the Council shall determine to reject such application, such determination shall be final and conclusive, and the same shall be deemed rejected. -9- (i) If the Council shall determine to further consider the application, the following shall be done: (1) .the Council shall decide and specify the. terms and conditions of any franchise to be granted hereunder and as herein provided; (2) the Council shall pass its resolution of intention to consider the granting of such a franchise, giving notice of receipt of the application, and describing the character of the franchise desired, stating the name of the proposed Grantee, the character of the franchise, the terms and conditions upon which such franchise is proposed to be granted, that copies of the proposed franchise may be obtained at the office of the City Clerk, `" - fixing and. setting forth a day, hour, and place certain when and where any persons having any interest therein or objection to the granting thereof may file written protests and appear before the Council and be heard, and directing the City Clerk to publish said resolution at least once within ten (10) days of the passage thereof in a newspaper in `general circulation within the City. (j) At the time set for the hearing, or at any adjournment thereof, the Council shall proceed to hear all written protests. Thereafter, the Council shall make one of the following determinations: (1) that such franchise be denied; or (2) that such terms and resolutio (3) that such the terms specified grant the franchise be granted upon the conditions as specified in the n of intention to grant the same; or franchise be granted, but upon and conditions different from those in the resolution cf intention to same. (k) If the Council shall determine that a franchise be denied such determination shall be expressed by resolution and shall be final and conclusive. Zf the Council shall determine that a franchise be granted upon the terms and conditions as specified in the resolution of intention to consider granting the same, such determination " ' shall be expressed by ordinance granting a franchise to the applicant. If the Council shall determine upon granting a franchise upon terms and conditions different from those specified in the resolution of intention to consider granting the same, then such determination shall be expressed by resolution adopted prior to granting a franchise by ordinance. SECTION 10-7. Deposits; bonds; indemnifications; insurance. (a) Performance Bond to City. -10- Upon being granted a franchise, and upon the filing of the acceptance required under Section 10-8 hereof, the Grantee shall file with the City Clerk and shall thereafter, annually, during the entire term of such franchise, maintain in full force and effect a corporate surety bond or other adequate surety agreement in such amount and kind a~ shall have been approved by the Council. The bond or agreement shall be so conditioned that in the event that Grantee shall fail to comply with any one or more of the provisions of this ordinance or of such franchise, then there shall be recoverable jointly and severally from the principal and surety any damages or loss, or costs suffered or incurred by the City as a result thereof, including attorneys' fees and costs of any action or proceeding, and including the full amount of any compensa- tion, indemnification, cost of removal or abandonment of any property or other costs which may be in default, up to the full principal amount of such bond. Said condition shall be r-a continuing obligation--during ahe-entire term of such franchise and thereafter until Grantee shall have satisfied in full any and all obligations to the .City which arise out of or pertain to said franchise: .Neither the provisions of this Section, nor any bond accepted by-the City pursuant hereto,-nor any damages recovered by the.City thereunder shall be construed to excuse faithful performance by the Grantee, or limit the liability of the Grantee under any franchise issued pursuant to this ordinance or for damages either to the full amount of the bond, or otherwise. (b) Performance Bond for Subscribers. Upon being granted a franchise, and 'upon filing of the acceptance required under Section 10-8 hereof, the Grantee shall file, annually, with the City Clerk and shall there- after during the entire term of such franchise maintain in full force and effect a corporate surety bond, or other adequate surety agreement, in the amount as shall have been approved by the Council. The bond or agreement shall be so conditioned that in the event such Grantee shall fail to comply with any one or more of the provisions of any agree- ment or undertaking made between Grantee and any subscriber, then there shall be recoverable jointly and severally from the principal and surety any damages or costs suffered or incurred by any subscriber as a result thereof, including reasonable attorneys' fees and costs of any action or pro- ceeding. Said condition shall be a continuing obligation during the entire term of such `franchise and thereafter until Grantee shall have satisfied in full any and all obligations to any subscriber which arise out of or pertain . to any such agreement or undertaking.• (c) Hold Harmless Agreement. Grantee shall indemnify and hold harmless the City, its officers, boards, commissions, agents and employees, against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including but not limited to damages to City property and damages arising out of copyright infringements, and damages arising out of any failure by Grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by Grantee's cable television system), costs or liabilities (including costs or liabilities of the City with -11- respect to its employees), of every kind and nature what- soever, including bu.t_not limited to damages for injury or death or damage to person or property, and regardless of the merit of any of the same, and against all liability to. others, and against any loss, cost, and expense resulting or arising out of any of the same, including any attorney fees, accountant fees, expert witness or corssultant fees, court costs, per diem expense, traveling and transportation expense, or other costs or expenses arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by Grantee, or the granting thereof by the City. (d) Defense of Litigation. Grantee shall at the sole risk and expense of Grantee, upon demand of the City, made by and through the City Attorney, appear in and defend any and_,_all suits, actions,_ or other "' legal proceedings; whether .judicaIy quasi-judicial, admin- istrative,,legislative, or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting the City;-:it's officers, boards, commis- sions, agents, or employees,. and. arising out of or pertain- ing to the exercise or the enjoyment of such franchise or the granting thereof by the City. Grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against Grantee, the City, its officers, boards, commissions, agents, or employees in any of these premises; and 'such indemnity shall exist and con- tinue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither Grantee nor City shall make or enter into any compro- mise or settlement of any claim, demand, cause of action, action, suit, or other proceeding, without first obtaining the written consent of the other. (e) Insurance Required. Upon being granted a franchise, and upon the filing of the acceptance required under Section 10-8 hereof, the Grantee shall file with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect at its own cost and expense each of the following policies of insurance: (1) General Comprehensive Liability Insurance in the amount of One Million Dollars ($1,000,000 together with Eodily Injury Liability Insurance in an amount not less than Five Hundred Thousand Dollars ($500,000.) for injuries including accidental death, to any one person, and subject to the same limit for each person in an amount not less than One Million Dollars ($1,000,000.) on account of any one occurrence, and Property Damage Limit Insurance in an amount not less than One Million Dollars ($1,000,000.) resulting from any one occurrence; provided, however, as follows: (i) the City shall be named as an additional insured. in any of said insurance policies; and )~ -12- (ii) where such insurance is provided by a policy .which also covers Grantee or any other entity or person, it shall contain the standard cross-liability endorsement. SECTION 10-8 - Acceptance of the Franchise. (a) No franchise granted under this ordinance shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk. Written acceptance, which shall be in the form anc substance approved by the City Attorney, shall also be and operate as an acceptance of each and every term and con- dition and limitation contained in this ordinance, or in such franchise, or otherwise specified as herein provided. (b) The written acceptance shall be filed_by the ':. Grantee not later than 12:O1;o'clock P.M. of the fortieth (40th) day next following the"effective date of the ordinance granting such franchise. (c) In default of the filing of such written acceptance as herein-required, the Grantee shall"be deemed to have re- jected and repudiated the franchise. Thereafter, the accept- ance of the Grantee shall not be received nor filed by the City Clerk. The Grantee shall have no rights, remedies, or redress in the premises, unless and until the Council, by resolution, shall determine that such acceptance be received or filed, and then upon_ such terms and conditions as the Council may impose. (d) In any, case, and in any instance, all rights, remedies and redress in these premises which may or shall be available to the City, shall at all times be available to the City, and shall be preserved and maintained and shall continuously exist in and to the City, and shall not be in any manner or means modified, abridged, altered, restricted, or impaired by reason of any of these premises, or otherwise. (e) Any franchise granted and accepted under this ordinance shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by the Grantee, of or pertaining to the construction, operation, or maintenance of any cable television systems in.the City. SECTION 10-9 Limitations of.Franchise. (a) Every franchise granted under this chapter shall be non-exclusive. ~.. ...,. (b) No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those specifically prescribed herein. , (c) Any privilege claimed under any such franchise by the Grantee in any_-street or other public property shall be subordinate to any prior lawful occupancy to the streets or other public property. (d) Any such franchise shall be a privilege to be held in personal trust by the original Grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, -13- or by voluntary sale, merger, consolidation or otherwise, without prior consent of the Council expressed .by resolution, and. then only under such conditions as'may therein be prescribed. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within thirty (30) days after any such transfer or assignment. The said con- sent of the Council may not be unreasonably refused; pro- vided, however, the proposed assignee must show financial responsibility as determined by the Council and must agree to comply with all provisions of this ordinance; and provi- ded, further, that no such consent shall be required for a transfer in trust, mortgage, or other hypothecation, in whole or in part, to secure an indebtedness, except that when such hypothecation shall exceed 50~ of the market value of the property used by the franchisee in the conduct of the -...... cable_television system, prior-consent of the Council shall be required for such a transfer.< Such consent shall not be withheld unreasonably. In the event that Grantee is a.corporation, prior approval of the.City Council, expressed. by ordinance, shall be requir- ed where there is an actual change in control or where ownership of more than 50~ of the voting stock of Grantee is acquired by a person or group of persons acting in concert, none of whom already own 50$ or more of the voting stock, singly or collectively. Any such acquisition occurring without prior approval of the City Council shall constitute a failure to comply with a provision of this ordinance within the meaning of Section 10-5 of this ordinance. (e) Time shall be of the essence of any such franchise granted hereunder. The Grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this ordinance by any failure of the City to enforce prompt compliance. (f) Any right or power in or duty impressed upon, any officer, employee, department, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City. (g) .The Grantee shall have no recourse whatsoever against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this ordinance or of any franchise issued hereunder or because of its enforcement. (h) The Grantee shall be subject to all requirements of City laws; rules, regulations, and specifications hereto- fore or hereafter enacted or established. (i) Any such franchise granted shall not relieve the Grantee of any obligations involved in obtaining pole or conduit space from any department of the City, utility company, or from others maintaining utilities in streets. (j) Any franchise granted hereunder, shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by Grantee, or any successor to any interest of Grantee, of -14- or pertaining to the construction, operation, or maintenance of any cable aelevision system in the City;. and the.accept- ance of any franchise hereunder shall operate, as between Grantee and the City, as an abandonment of any and all of such rights, privileges, powers, immunities, and authorities within the City, to the effect that, as between Grantee and the City, and all construction, operation and maintenance by any Grantee of any cable television system in the City shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to said franchise, and not hereunder or pursuant to any other right, privilege, power, immunity, or authority whatsoever. SECTIOtd 10-10 Rights reserved to the City. The City reserves the power to adopt and enforce require- --.,,;.;. _., ments.:and regulations,on any.-.or_.a11 of the following matters, if .and when deemed necessary and. proper in the public inter- est in the discretion of the City Council and is consistent with Rules and Regulations of the Federal Communications ..Commission: _- -. (a) Procedures for the periodic fixing of reasonable rates and service charges to be charged to' subscribers by Grantee, and provisions for the enforcement thereof. (b) Operational standards pertaining to the quality of audio-visual reception by subscribers. (c) Channel capacity requirements. (d) Requirements for carriage of specified television signals, radio signals, and supplementary signal carriage services. (e) Requirements for the provision of equipment and channels for local production and presentation of cablecast programs, and regulations pertaining thereto. (f) Requirements and regulations pertaining to minimum service requirements and fair business practices by the Grantee. (g) Public safety requirements pertaining to the installation and use of all CATV equipment. (h) Procedures for the investigation and resolution of all complaints by subscribers regarding Grantee's CATV operations, including implementation thereof by designated City officers, employees, br=agents. (i) There is hereby reserved to the City every right and power which-is required to be herein reserved or provid- ed by any law and the Grantee, by its acceptance of the franchise, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or power, heretofore or hereafter enacted or estab- lished. (j) Nothing herein shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the Grantee, either by -15- purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted, and nothing herein contained shall be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's right of eminent domain. (k) Neither the granting of any franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City. (1) The Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this ordinance and may determine any question of fact which may arise during the existence of any franchise granted _ _ hereunder. The city manager, with the approval of the City Attorney, is'hereby'authorized.and:empowered to adjust, settle, or compromise any controversy or charge arising from -the operations of any Grantee under this ordinance, either on behalf of the City, the .Grantee, or any subscriber, in the best interest of the public. Either the Grantee or any member of the public who may be.dissatisfied with the deci- sion of the city 'manager may appeal the matter to the Council for hearing anti-determination. The Council may accept, reject or modify the decision of the city manager, and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of the Grantee or from any provision of this ordinance. SECTION 10-11 Council to adopt"rules and regulations. (a) Standards of Operation (1) Prior to receiving any applications for franchises, the Council may adopt rules, regulations and standards governing the operation of cable television systems in the City. Such rules, regulations and standards shall apply to and shall govern the opera- tions of the Grantee of any franchise here- under, and are expressly declared a part of any franchise hereunder. (2) Rules, regulations and standards not adopted prior to receiving any application for a franchise shall be adopted by the Council at the first regular meeting 'of the Council next following the effective date of this chapter, by resolution which shall become effective upon adoption and shall be applicable to any application for a franchise previously received. (3) The standards adopted pursuant to these procedures shall be exclusively in those areas not either expressly or impliedly preempted by the Federal Communications - - Commission at the time of adoption. (4) Provided the same do not materially alter the content of the £ranchise without consent of the Grantee, the Council may at any time adopt new rules or regulations or standards, or may amend, modify, delete, or -16- otherwise change its respective rules or regulations or standards previously adopted, in the following manner: The Council shall pass its resolution of intention stating or describing the rules or regulations or standards to be adopted, amended, modified, deleted, or otherwise changed, and fixing and setting forth a day, hour, and place certain when and where any persons having any interest therein or objection thereto may appear before the Council and be heard. Such resolution shall direct the City Clerk to publish the same at least once within ten (10) days of the pass- age thereof in a newspaper of general circula- tion within the City, and to mail- a copy of the same to any Grantee or applicant for a franchise, not more than thirty (30) days nor less than fifteen (15) days prior to the time fixed for hearing thereon. At the time set for such hearing, or at any adjournment thereof, the Council shall proceed ~to hear and pass upon such 'comments as may be presented. Thereafter the Council, by its resolution, may adopt, amend, modify, delete, or otherwise changeits respective rules, regulations and standards. Such determina- tion by the Council shall be final and con- clusive. Any rule or regulation or standard as adopt- ed., amended, modified, deleted, or otherwise changed by the Council shall become effective upon the tenth (10th) day following the adoption of such resolution, unless a longer period shall be otherwise provided in such resolution. (b) Rates (1) Prior to granting any franchise hereunder the Council, by resolution, shall establish 'and fix all rates and charges for the Basic Service, herein defined, allowable to Grantee, such as: (i) charges for installation; (ii) subscriber rates; except the rates for pay television; (iii) service charges for separate classifications of service (e.g., additional connections, etc.) Once established, such rates or charges shall not be changed at any time after granting of a franchise, except after due notice and hearing as provided herein. -17- (2) Rates and charges for services, other than the Basic Service, shall also be ap- proved by the Council by resolution, after due notice and hearing as provided. (3) In connection with an1~ proposed change of any rates or charges of Grantee to sub- scribers initiated by Grantee, or the approv- al of rates for additional services, at any time after the granting of a franchise, the City Council may direct the City D4anager of the City to conduct a preliminary investigation, in the form he deems suitable, into the matter. The city clerk shall prepare and file with the Council a written report of the investigation, his findings, and an opinion _ _ _ _ __ containing his recommendations and the reasons • -.. .._ therefor. Upon .receipt of the report the City Council may determine to hold a public hearing on the application and shall pass a resolution of intention to hold such a hearing, describing and stating any rates or charges to be charged, the reasons of the Council therefor, fixing and setting forth a day, -hour, and place certain when and where any persons having an interest therein may appear before the Council and be heard. Such resolution shall direct the City Clerk to publish the same resolution at least once within ten (10) days of the passage thereof in a newspaper of general circulation within the City. The City Clerk also shall cause a copy of such resolution to be mailed to the Grantee at least ten (10) days prior to the date specified for hearing thereon. At the time set for any further hearing, or at any adjournment thereof, the Council sl-,all proceed to hear the matter. At the conclusion of the public hearing, if the Council determines to do so, the Council shall find that the changing of any rates or charges of Grantee to subscribers will be fair to the system operator and not detri- mental or injurious to the best interests and welfare of the subscribers and users, and of the City, then the Council, by resolution, shall authorize the change of rates or charges of Grantee to subscribers and users as determined. Such resolution shall thereupon become and shall be a part of any franchise granted hereunder and affected thereby. (4) Neither the Council nor the Grantee shall, as to rates, charges, service, service facilities, rules, regulations,- or in any other respect; make or grant any preference or advantage to any person nor subject any person to prejudice or disadvantage. -18- SECTION 10-12 Permits and construction. (a) Within thirty (30) days after acceptance of any franchise, the Grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business including, but not limited to, any utility joint use attachment agreements, micro-wave carrier licenses and any other permits, licenses and authorizations to be granted by duly constituted regula- tory agencies having jurisdiction over the operation of the cable television systems, or associated micro-wave trans- mission facilities. In connection therewith, copies of all petitions, applica- tions and communications submitted by the Grantee to the Federal Communications Commission, Securities and Exchange ..Commission, or any other federal or state regulatory commis- Sion or agency having jurisdiction :in .respect to any matters affecting Grantee's cable television operations, shall also be submitted simultaneously to .the city. engineer. '-' (b) Within ninety (90) days after obtaining all neces- - sary permits, licenses and authorizations, including right of access to poles and conduits, Grantee shall commence construction aiid installation of the cable television system. (c) Within one hundred eighty (180) days after the commencement of construction and installation of the system, Grantee shall proceed to render service to subscribers, and the completion of the installation and construction shall be pursued with reasonable diligence th"ereafter, so that service to all of the areas designated and scheduled on the map .and plan of construction made part of,the franchise shall be provided as set forth therein. (d) Grantee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on a privately-owned property unless and until first securing the written approval of the city engineer. Whenever Grantee shall not utilize existing poles, conduits and other facilities, or whenever existing conduits and - other facilities shall be located beneath the surface of the streets, or whenever the City shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the street's in any area or throughout the City, in the exercise of its police power or ...pursuant to the terms hereof; .upon reasonable notice to Grantee, any such conduits or other facilities of Grantee shall be constructed, installed; placed, or replaced beneath the surface of the streets. Any construction, installation, placement, replacement, or changes which may be so required shall be made at the expense of Grantee, whose costs shall be determined as in the case of public utilities. (e) The City shall have the right, free of charge, to make additional use, for any public or municipal purpose -19- whether governmental or or other similar fac' prOprietar exclusivel 1lities erected of any pO1eS. conduits, use by City by ornotr Grantee controlled y does interfereln any street °r maintained with the Provided such (f) In those use by Grantee or distribution areas of the rov' honcilities of the1resphere the transmission pnderding telep e, communication andeCtive' likew~seund or hereafter are electrp~blic utilities transmissionll construct Placed under services are and operate ground, the Grantee term "under distribution and maintain all ground shall facilities under of his system; rovided, include a partial gr°und. The of the p that under city engineer upon obtaining the writtenrOUnd S2on and distribution amplifiers in the approval housings upon the lines may be Grantee's trans surface of the placed mis- ground. 1n appropriate ,, (g) The Grantee temporarily disconnectat his expense shall Grantee when relocate; or remove protect, support is re . in the opinion of_the any Property of~ quired by reason of traffic city engineer street vacation, freewa conditions the same „ __ _ establishment Y or street Public safety, . water °f street grade.., construction, change or drains installation facilities pipes, power line of sewers, tracks ~ S14na1 line, transportation improvements °r any other types of structure or governmental or governmental agencies whether actin ture °r a pYOPrietary capacity, or an 4 in a or public improvement, includin Y other movement of buildin s g but not struc- an g urban renewal and limited to y general program under which the Tedevelopment cause all such City shall undertakeato of the pTOPerties to be located beneath the ground. The Grantee shall in~all cases have surface privilege, subject to the correspondin the abandon any property of Grantee in g obligations, to . idothing hereunder shall be deemed aptakin as herein provided. of Grantee, and Grantee shall be entitledg of the reason of anythin Property g hereunder, to no surcharge by to cause anpon the failure, refusal, or neglect of Grantee to be y work or other act required by law or hereunder properly completed in, on, over, or under any street within any time prescribed therefor, or upon notice given, where no time is prescribed, the city engineer may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to Grantee an itemized state- ment of the costs thereof. The Grantee shall, within thirty (30) days after receipt of such statement, pay to the City 'the entire amount thereof. . (i) In the event that, (1) the use of any part of the system of Grantee is discontinued for any reason for a continuous period of thirty (30) days, without prior written notice to and approval by the City; or (Z) any part of such system has been installed in any street or other area without complying with the requirements hereof; or -20- (3) any franchise shall be or shall ex ire terminated, cancelled, the option of then the Grantee Grantee the City, and shall, at and at no at the expense of upon demand expense to the City, and of the City, promptly remove from any streeandoGrantee area all property of Grantee the street or other shall promptly restore property has been area from which such as the cit removed to such condition y engineer shall approve, thereouncil may, upon written application of anYoofbsuchantee, approve the abandonment and Property in place b • - -.-. under such y Grantee :..,,: -- _~ _ Council - terms and conditions ....... .... an mal' Prescribe, p o as the y 'such propert P n abandonment of •- cause to be executed place, Grantee shall :delivered to the acknowledged, and as the Cit City such instruments - - approve y Attorney shall prescribe and transferring and conveying the ownership of such property to the City, SECTION 10-13 Technical Standards. (a) The performance of Grantee's cable television system shall meet the technical standards as set Section 76.605 or any successor section Communication Commissions forth in exist from time to time, of the Federal and Rules;, as those standards may ance with thenrequirementsnofcSectionrmance tests in accord- section of the Federal Communication Comm ission`snRulesCeasor these requirements may apply or be extended from time to time. SECTION 10-14 Miscellaneous Provisions, (a) A franchise granted to provide service within the City shall be authorized and permit the Grantee to solicit, sell, distribute, and make a charge to subscribers within the City for connection to-the cable television system of Grantee, and shall also authorize and permit the Grantee to traverse any portion of the City in order to provide service outside the City, (b) A franchise, easement, license or other permit granted to anyone other than-the Grantee to traverse any portion of the City in order to provide service outside the City shall not authorize nor permit said person to-solicit, sell, distribute, or make any charge to subscribers within the City nor to render any service or connect any subscriber within the City to the cable television service system of Grantee. (c) No franchise granted under this ordinance shall ever be given any value by any Court or other authority, public or private, in any proceeding of any nature or char- acter, wherein or whereby the City shall be a party or affected therein or thereby, -21- other (d) Grantee shall b the °rdinances, rules e subject City heretofore Tegulations o all pr°visions of `he limited to those or hereafter ado and specifica over, under Pertainin ted, includin t~Ons of and g to worksp about streets, and activities but not Any privile 1n' °n. to this ge claimed under an shall °rdinance in Y franchise be subordinate any street or other granted pursuant streets or othe tO anY Prior Public property r public property. la~'ful occu Grantee Pancy of the also shall be laws of the State of Cal iforniao the provisions g ral ineanaPPlicable to the exercise or as hereafter of ens y franchise granted °f anY privile amended, not limited to those under this ge contained and about Pertainin ordinance, includin State highways, g to works and activitiesgibut (e) Grantee shell be prohibited indirectly doing any of the from directly or following; ~1) engaging in the business of selling at retail, leasing, renting, repairing or ser- vicing of television sets or radios; (2) imposing a fee or charge for any service or repair to subscriber-owned receiving devices except for the connection of its service or for the determination by Grantee of the quality of its signal to the recipients thereof. (3) soliciting, referring, or causing or permit- ting the solicitation or referral of any sub- scriber to persons engaged in any business herein prohibited to be engaged in by Grantee. (4) providing information concerning the viewing patterns of identifiable individual sub- scribers to any person, group or organization for any purpose. (f) If the Federal Communications Commission or the Public Utilities Commission of the State of California or any other Federal or State body or agency shall now or here- after exercise any paramount jurisdiction over the subject matter of any franchise granted under this ordinance, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City the jurisdiction of the City shall cease and no longer exist. (g) When not otherwise prescribed herein, all matters herein required to be filed with the City shall be filed with the City Clerk. (h) No person, firm or corporation within the service area of the Grantee, and where trunk lines are in place, shall be refused service; provided, however, that the Grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or service charge. -22- (i) Before providing cable television service to any subscriber, the Grantee shall provide a written notice to the subscriber substantially as follows: "Subscriber is hereby notified that in providing cable television service the Grantee is making use of public rights-of-way within the City of Lynwood and that the continued use of such rights-of-way is in no way guaranteed. In the event the continued use of such rights-of-way is denied to Grantee for any reason, Grantee will make every reasonable effort to provide service over alternate routes. By accepting cable television service, subscriber agrees he will make no claim nor undertake any action against the City of Lynwood, its officers, or its employees if the service to be provided hereunder is interrupted or ..discontinued." __... ___ ~._........_. __ ___ (j.),_.The .form .of_ the Grantee;'s contract with the subscriber shall also be subject to approval: of: the City. _ ___ _ SECTIOII 10-15...Equa1 opportanitc:.employment and affirma- _tive.action plan. , In the carrying out of-the construction, maintenance and operation of the cable television system, the Grantee shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, or national origin. The Grantee shall take affirmative action to ensure that applicants are employed, and that employees are treated. during employment, without regard. to their race, creed, color, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of com- pensation, and selection of training, including apprenticeship. The Grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause. The Grantee shall, in all solicitations, or advertisements -. _ for employees placed by or::on behalf .of the Grantee, state _..:.-:._. _that_.all.qualified_applicants.shall.receive consideration ..for employment without regard to'.:race, creed, color, sex, or national origin. ......, ..:............_ :....,., .. . The..Grantee, shall incorporate the "foregoing requirements in all of its contracts for work relative to construction, maintenance and operation of the cable television system, other than contracts for standard commercial supplies or raw materials, and shall require all of its contractors for such work to incorporate such requirements in all subcontracts for such work. SECTION 10-16 Violations (a) From and after the effective date of this ordinance, it shall be unlawful for any person to construct, install or maintain within any public street in the City, or within any -23- other public property of the City, or within any privately- owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative. subdivision map approved by the City, any equipment or facilities for distributing any television signals or radio signals through 'a cable television system, unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this ordinance, and unless such franchise is in full force and effect. (b) It shall be unlawful for any person, firm or corporation to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable television system within this City for the purpose of enabling himself or others to receive or use any. television signal, radio signal, picture, program or sound, without payment to the owner of said system. (c) It shall be unlawful for any person, without the consent of the owner, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. _ SECTION II. Severability Zf any section, subsection, sentence, clause or phrase o£ this ordinance is for any 'reason .held illegal, invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The Council hereby declares that it would have passed this ordinance and each section, sub-section, sentence, clause and phrase hereof, irrespective of the fact that any one or more sections, sub-sections sentences, clauses, or phrases be declared illegal, invalid or unconstitutional. The invalidity of any portion of this ordinance shall not abate, reduce or otherwise affect any consideration or other obligation required of the Grantee of any franchise"granted hereunder. SECTION IZI. Effective Date This ordinance shall become effective thirty (30) days from and after its passage. SECTION IV. The City 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 cir- culated in the City of Lynwood. First read at a regular meeting of the City Council of said City held on the 4th day of , 1979, and finally ordered published at a regu ar meeting of said Council held on the hr.n day of FAy,r„ary , 19 ~{l -24- AYES: COUNCILMEN BYORK, GREEN, HIGGINS, ROWE, MORRIS. NOES: COUNCILMEN NONE. , ABSENT: COUNCILMEN NONE. ~_ ~~~ Mayor,~City of Lynwood ' ATTEST: -~-- - ~ ~~ /,r.~~6 / l . City Clerk, City of Lynwood -25- STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss. I, the undersigned, City Clerk of the City of Lynwood, do hereby certify~Oy'~ tadopbedebysthetCityaCoun~ileof they of Ordinance No. y City of Lynwood, and that same was passed on the date and the vote therein stated. Dated this ~_ day of FPbru~rv 1480 `/ LAUREYIE COFFE~ Y City Clerk, City of Lynwood SEAL T