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ORDINANCE 754A ORDINANCE NO. 754 AN ORDINANCE OF THE CITY OF EL SEGUNDO, CALIFORNIA, GRANTING TO THETA CABLE OF CALIFORNIA, A COMMUNITY ANTENNA TELEVI- SION FRANCHISE IN THE CITY OF EL SEGUNDO. WHEREAS, at its meeting duly and regularly held on Janu- ary 11 , 1971, the City Council of the City of E1 Segundo accepted the proposal of the Theta Cable of California for a community antenna television franchise within the City of E1 Segundo and said franchise was awarded to the Theta Cable of California; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EL SEGUNDO, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. A community antenna television franchise is here- by granted to the Theta Cable of California, more particularly as follows: ARTICLE I DEFINITIONS Section 1. 1 Unless it is apparent from the context that it has a different meaning, each of the following words and phrases has the mean- ing herein stated wherever it is used in the franchise, that is: CITY: The City of E1 Segundo of the State of California, in its governmental capacity; COUNCIL: The City Council of the City of El Segundo; FRANCHISE PROPERTY: All property retained by the Grantee in a street under authority of this franchise; GRANTEE: Theta Cable of California,or any person, firm or corporation to which it may thereafter be lawfully transferred and which has filed with the City Clerk an acceptance and bond referred to in Section 2. 3 and 6. 4 hereof; STREET: The surface of, and the space above and below any pub- lic street, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, other public place, other area under control of the City, or public utility ease- ment, now or hereafter existing as such within the City. 44 .,.. ARTICLE II FRANCHISE GRANT Section 2.1 NATURE AND EXTENT OF THE GRANT. The non- exclusive franchise hereby granted by the City is for the construction and operation of a community antenna television system and authorizes Theta Cable of California, subject to the provisions herein contained: (a) to erect, install, construct, replace, repair, reconstruct, maintain and retain: (1) television antenna, supporting structures and appurten- ances in such streets or other public places as may be authorized by the City Engineer, (2) television studios, and (3) poles, co -axial cable, conductors, amplifiers and appur- tenances in, along and across streets within the City within the service area designated in Section 2. 2 hereof. (b) to maintain and operate said franchise properties for the collec- tion, origination, transmission, amplification and distribution of electrical or radiant energy for television and radio reception; (c) to provide, use and operate similar properties rented or leased from other persons, firms or corporations for such purpose; (d) to engage in the business of the distribution and sale of such energy to subscribers within theCity within the service area designated in Sec- tion 2. 2 hereof; and (e) to sell advertising for use on television channels not used for the transmission of off - the -air television signals. Section 2.2 DESIGNATION OF SERVICE AREA. The service area referred to in Section 2. 1 hereof is the entire area of the City of El Segundo, and any area of the City hereafter annexed. Section 2. 3 DURATION OF GRANT. This franchise shall be effec- tive on the thirty -first (31) day after the publication of the enacting ordinance, provided the Grantee has filed with the City Clerk, within twenty (20) days after -2- such date of publication, a written instrument, addressed to the Council, accepting this franchise and agreeing to comply with all of the provisions hereof. The Grantee shall deposit with the City Clerk a $2, 500. 00 nonrefund- able application fee to cover costs of publication and processing this franchise. This franchise shall expire twenty (20) years after the effective date hereof and may be terminated by ordinance at an earlier date in the event: (a) the Grantee fails to comply with any provision hereof; or (b) any provision hereof becomes invalid or unenforceable and the Council expressly finds that such provision constituted a consideration material to the grant of this franchise; or (c) the City purchases the property of the Grantee; provided, how- ever, that the Grantee shall be given thirty (30) days notice of any termination proceedings. ARTICLE III CONSTRUCTION OF FRANCHISE Section 3.1 INTERPRETATION. Unless otherwise specifically prescribed herein the following provisions shall govern the interpretation and construction of this franchise: (a) The singular number includes the plural, and the plural num- ber includes the singular. (b) Time is of the essence of this franchise. The Grantee shall not be relieved of its obligation to promptly comply with any provision hereof by any failure of the City to enforce prompt compliance with the same or any other provision. (c) Any right or power conferred, or duty imposed upon any offi- cer, employee, department, or board of the City, is subject to transfer by operation of law to any other officer, employee, department or board of the city. (d) The Grantee shall waive all claims for any loss, cost, ex- pense or damage against the City arising out of any provision or require- ment of this franchise or the enforcement thereof. -3- (e) This franchise does not relieve the Grantee of any require- ment of any ordinance, rule, regulation or specification of the City, includ- ing, but not limited to, any requirement relating to street work, street exca- vation permits, or the use, removal or relocation of property in streets. (f) The granting of this franchise or any of the provisions con- tained herein shall not be construed to prevent the City from granting any identi- cal or similar franchise to any person, firm, or corporation other than the Grantee. Section 3.2 LIMITATIONS UPON GRANT. (a) No privilege or exemption is granted or conferred by this franchise except those specifically prescribed herein. (b) Any privilege claimed under this franchise by the Grantee in any street shall be subordinate to any prior lawful occupancy of the street. (c) This franchise is a privilege to be held in personal trust by the original Grantee. It cannot in any event be transferred in part, and it is not to be sold, transferred, leased, assigned, or disposed of as a whole, with- out prior consent of the City expressed by ordinance, and then only under condi- tions as may be therein prescribed; provided, however, that no such consent shall be required for any transfer in trust, mortgage, or other hypothecation, as a whole, to secure any indebtedness. (d) This franchise is granted upon the express condition that it does not authorize the transmission of any special program or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as "pay television. " (e) This franchise is granted in lieu of any power and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by Grantee, of or pertaining to the construction, operation, or maintenance of any community antenna television system in the City; and the acceptance of this franchise shall operate, as between the Grantee and the City, as an abandonment of any and all such rights, privileges, powers, immunities, and authorities within the City, to the effect that, as between Grantee and the City, any and all construction, operation, and maintenance by the Grantee of -4- i -4 i r) any community antenna television system in the City shall be and shall be deemed and construed in all instances and respects to be under and pursuant to this franchise, and not under or pursuant to any to any other right, privilege, power, immunity or authority whatsoever. Section 3. 3 RIGHTS RESERVED TO CITY. There is hereby pro- vided and reserved to the City every right and power which is required to be herein reserved and the Grantee by its acceptance of this franchise agrees to be bound thereby and to comply with any action or requirement of the City in its exercise of any such right or power. The City may exercise any governmental right or power necessary or convenient to carry out any of the terms or conditions contained herein. Neither the granting of this franchise nor any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the City. Section 3.4 ESTABLISHMENT AND ABANDONMENT OF SER- VICE. The Grantee shall have installed adequate community antenna television facilities to provide community antenna television service to all persons making a timely and bona fide request that the same be provided at any location within the service area described in Section 2.2 hereof, and Grantee shall furnish such service at such locations within twenty -four (24) months after the effec- tive date of this franchise, or within such reasonable extension thereof as may be prescribed by the Council. Failure of Grantee to comply with the time limits specified herein or to obtain an extension of time from the Council shall constitute an automatic expiration of this franchise. Among the grounds the Council shall consider in granting an extension is the failure of utility companies to release their poles to the Grantee for attachment of cable in a timely manner. After the Grantee shall have established service pursuant to this franchise in the service area, such service shall not be suspended or abandoned unless such suspension or abandonment be authorized by the Council. Whenever the Grantee shall file with the Council a written applica- tion alleging that public convenience and necessity no longer require that the -5- Grantee furnish service as authorized or required by, or pursuant to, this franchise, in any area, the Council shall, at a public hearing, take evidence upon that question and shall make a finding with respect thereto. Notice of such hearing shall be given by the Grantee to each subscriber in such area at least fifteen (15) days prior thereto. If the Council shall find that public con- venience and necessity no longer require that the Grantee furnish such ser- vice, then the Council shall, after hearing as provided herein, authorize sus- pension or abandonment of such service upon such reasonable terms and condi- tions as may be prescribed by the Council. Section 3. 5 RATES. The rates set forth in the written proposal to the Council, made by the Grantee, are hereby adopted. Section 3.6 REGULATION OF RATES AND SERVICE. The Coun- cil shall have the power to regulate rates and service and the Grantee by its acceptance of this franchise agrees to comply with every such order and regu- lation. ARTICLE IV STREET WORK Section 4.1 LOCATION OF FRANCHISE PROPERTIES. Fran- chise property shall be constructed or installed only at such locations as shall be approved by the City Engineer, acting in the exercise of a reasonable dis- cretion. Section 4.2 REMOVAL OR ABANDONMENT OF FRANCHISE PROPERTY. (a) In the event the use of any franchise property is permanently discontinued, or no franchise has been obtained therefor within twelve (12) months after any termination of this franchise, the Grantee shall promptly remove from the streets all property involved. (b) Franchise property to be abandoned in place shall be aban- doned in such manner as the City Engineer shall prescribe. Upon permanent abandonment of any franchise property in place, the Grantee shall submit to the City an instrument satisfactory to the City Attorney, transferring to the City the ownership of such property. .7' 1 Section 4.3 CHANGES REQUIRED BY PUBLIC IMPROVEMENTS. The Grantee shall, at its expense; protect, support, temporarily disconnect, relocate in the same street, or remove from any street any franchise property when required by the City Engineer by reason of traffic conditions, public safety, street vacation, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity; provided that Grantee shall in all such cases have the privileges and be under the obligations as to the abandonment of franchise property in place which are provided in Sec- tion 4. 2 hereof. Section 4.4 FAILURE TO PERFORM STREET WORK. Upon any failure of the Grantee to commence, pursue or complete any work required of it, by law or by the provisions of this franchise to be done in any street, the City, at its option and according to law, may cause such work to be done and the Grantee shall pay to the City the cost thereof in the itemized amounts re- ported by the City Engineer to the Grantee, within thirty (30) days after receipt of such itemized report. Section 4. 5 UNDERGROUND FACILITIES. Unless otherwise autho- rized by the Council in those areas and portions of the City where communica- tion lines are now underground, or may hereafter be placed underground, the Grantee shall likewise install or relocate its transmission and distribution lines underground. Subject to approval by the City Engineer, incidental appurten- ances such as amplifier boxes and pedestal mounted terminal boxes may be placed above ground, but shall be of such size and design and shall be so located as not to be unsightly or hazardous to the public. Section 4. 6 UTILITY POLES. Grantee shall not set new and addi- tional utility poles to be used exclusively for community antenna television purposes and shall not install community antenna television facilities on poles used exclusively for street lights. Section 4.7 UTILITY COMPANY AGREEMENTS. When any por- tion of the community antenna television system is to be installed on public utility poles and facilities, certified copies of the agreements for such joint -7- use of poles and facilities shall be filed with the City Clerk. ARTICLE V SERVICE TO SUBSCRIBERS Section 5.1 OPERATIONAL STANDARDS. The community antenna television system shall be installed and operated in accordance with the highest and best accepted standards of the industry to the effect that sub- scribers shall receive the best possible service. Such standards shall include adequate shielding, filtering and grounding at affected installations to elimin- ate interference from ham operator transmissions, aircraft and other inter- ference sources. Section 5.2 TELEPHONE SERVICE. Grantee shall maintain an office in the City or at a location which sul�d r- °ibers may call toll free for maintenance service. ARTICLE VI COMPENSATION AND GUARANTEE TO THE CITY Section 6.1 ANNUAL PAYMENTS TO THE CITY. (a) By its acceptance of this franchise, the Grantee agrees to pay to the City, annually, in lawful money of the United States five per cent (5 %) of the total gross receipts collected or received, including initial installation charges, reconnection charges, and charges for modification of service, or in any man- ner gained or derived by the Grantee in each calendar year, or portion there- of, during the term of this franchise, from the properties, operations, and business referred to in Section 2. 1 hereof. In the event the maximum fran- chise fee permitted by applicable law should be increased, the franchise fee contained herein shall automatically be changed to the new allowable rate. (b) Checks for all such payments shall be made payable to the City Treasurer. Annual payments shall be submitted to the City Clerk on or before March 1 of each year for the previous calendar year or portion thereof. (c) Each payment shall be accompanied by a statement in dupli- cate prepared by a certified public accountant or other person satisfactory to the Council verified by the Grantee or by a general officer or other duly autho- rized representative of the Grantee, showing in detail the total gross receipts IF:M and such other information as the Council may require from time to time that is material to a determination of the amount due. (d) The payment made to the City by the Grantee pursuant to this Section for any calendar year shall be in lieu of any license fee, or business tax, prescribed by the City for the same period, but only to the extent of such payment. (e) In every year except the year 1971 Grantee shall pay the City a minimum amount of $500. 00 for each year the franchise is in force. Section 6. 2 CITY USE OF FACILITIES. The City shall have the right, free of charge, of installing, maintaining and operating upon antenna towers and poles, or in underground ducts of the Grantee, antenna, amplifiers, co -axial cable, wire, fixtures and appurtenances necessary for a City com- munication system; such equipment to be installed, maintained and operated so as not to interfere with property or operations of Grantee. Section 6.3 PUBLIC LIABILITY AND PROPERTY DAMAGE IN- SURANCE. Grantee shall at all times maintain in full force and effect a policy of insurance in such form as the City Attorney may require, execu- ted by an insurance company authorized to write the required insurance and approved by the Insurance Commissioner of the State of California insuring the payment of any sums which the Grantee, or City, its officers, boards, commissioners, agents and employees may become obligated to pay by rea- son of any liability imposed upon them by law for damages because of bodily injury or death, or injury to or destruction of property that may result to any person or property arising out of the construction, operation or maintenance of any facilities pursuant to this franchise. The sums, payment of which shall be so insured shall be not less than: (a) for bodily injury to or death of one person, $200, 000; (b) for bodily injury to or death of more than one person in any one accident, $500, 000; (c) for loss or damage to property in any one accident, $50, 000. Such policy of insurance shall be filed with the City Clerk. Section 6.4 FAITHFUL PERFORMANCE BOND. The Grantee shall, within five (5) days after the award of this franchise, file with the City Clerk and at all times thereafter maintain in full force and effect, an acceptable corporate surety bond, in duplicate, in the amount of Twenty Five Thousand Dollars ($25, 000. 00), and conditioned that in the event the Grantee shall fail to comply with any one or more of the provisions of this franchise, then there shall be recoverable jointly and severally from the principal and surety of such bond, any damages suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of property as prescribed by Sections 4. 2, 6. 1 or 6. 5 hereof which may be in default, up to the full amount of the bond; said condition to be a continuing obligation for the duration of this franchise and thereafter until the Grantee has liquidated all of its obligations with the City that may have arisen from the acceptance of this franchise by the Grantee or from its exercise of any privilege herein granted. Neither the provisions of this Section 6. 4, any bond accepted by the City pursuant thereto, nor any damages recovered by the City there- under shall be construed to excuse faithful performance by the Grantee or to limit the liability of the Grantee under this franchise or for damages, either to the full amount of the bond or otherwise. Section 6. 5 INDEMNIFICATION TO CITY. The Grantee shall in- demnify the City, its officers, boards, commissions, agents, and employees, against all claims, demands, actions, suits and proceedings by others and against all liability to others, and against any loss, cost and expense result- ing therefrom, arising out of the exercise or enjoyment of this franchise, irrespective of the amount of the bond designated in Section 6. 4 hereof. Section 6.6 INSPECTION OF PROPERTY AND RECORDS. At all reasonable times, the Grantee shall permit any duly authorized representa- tive of the City to examine all franchise property, together with any appur- tenant property of the Grantee situated within or without the City, and to ex- amine and transcribe any and all maps and other records kept or maintained by the Grantee or under its control which treat any of the operations, affairs, -10- transactions or property of the Grantee with respect thereto. If any of such maps or records are not kept in the City, or upon reasonable request made available in the City, and if the Council shall determine that an examination thereof is necessary or appropriate to the performance of any of its duties, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the Grantee. The Grantee shall file with the Superintendent of Streets on or before the last day of March of each year a current set of maps drawn to scale of one hundred feet to an inch showing all community antenna television system equipment installed and in place in streets, alleys and public places of the City and shall file a corrected map within thirty (30) days after completing any change or modification in said system. The Grantee shall prepare and furnish to the City Council at the times and in the form prescribed by the City Council, such reports, with res- pect to its operations, affairs, transactions or property, as may be re ason- ably necessary or appropriate to the performance of any of the duties of the City in connection with this franchise. Section 6. 7 ACCEPTANCE. The franchise granted herein shall not become operative until the Grantee has filed its written acceptance of this franchise and all of the terms, conditions and restrictions imposed herein with the City Clerk and has deposited all bonds and made all payments required by this franchise. SECTION 2. That this ordinance shall become effective at mid- night on the thirtieth day from and after the date of the final passage and adoption thereof. SECTION 3. That the City Clerk shall certify to the passage and adoption of this ordinance; shall cause the same to be entered in the book of original ordinances of said city; shall make a minute of the passage and adop- tion thereof in the records of the meeting at which the same is passed and adopted; and shall, within fifteen days after the passage and adoption thereof, cause the same to be published once in the E1 Segundo Herald, a weekly news- -11- paper of general circulation, published and circulated within said City of El Segundo, and which is hereby designated for that purpose. PASSED, APPROVED and ADOPTED this 25th day of January, . 1971. ATTEST: City Clerk (SEAL) -12- MIT STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS CITY OF EL SEGUNDO ) I, , , , , JANE, A., RQW- -t , , , , , , , , , , , , , , City Clerk of the City of El Segundo, California, do hereby certify that the whole number of members of the City Council of the said City is five; that the foregoing ordinance, being Ordinance No. . . . . . is a full, true and correct original of Ordinance No. .754........ of the said City of El Segundo, California, entitled: "AN ORDINANCE OF THE CITY OF EL SEGUNDO, CALIFORNIA, GRANTING TO THETA CABLE OF CALIFORNIA, A COMMUNITY ANTENNA TELEVI- SION FRANCHISE IN THE CITY OF EL SEGUNDO."; which was duly passed and adopted by the said City Council, approved and signed by the Mayor of said City, and attested by the City Clerk of said City, all at a regular meeting of the said Council held on the .. ?5th.. day of .... J xwax'y ....... 19 -71 ....... and that the same was so passed and adopted by the following vote: AYES: Councilmen ..$pLjrx1er,. .Nagel xid. Maxax Slepbeus; . ............ ............................... NOES: Councilmen „ ........... . ABSENT: GQUnciluien. N. one ....................................... I do hereby further certify that pursuant to the provisions of Section 36933 of the Government Code of the State of California, that the foregoing Ordinance No. . A54 ... was duly and regularly published according to law and the order of the City Council of said City in the E1 Segundo Herald, a weekly newspaper of general circulation, printed, published and circulated within said City and that the same was so published therein on the following date, to wit: ..................... . it Clerk.of• the City•of•E1 Segundo,• California (SEAL) By........................ . ............ Deputy Affidavit of Publication STATE OF CAUWOZNU ) COUNTY OF LOB ANGZLEB) as CITY OF EL SZGUNDO ) -_ ---IT. an _- La___araoue- _----- being first duly sworn, deposes and says: That he is, and at all of the times hereinafter mentioned was, a citisen of the United States of America, over the age of eighteen years, and a resident of the County of Los Angeles, state of California; that he was. at, and during all of the time of the publication of the instrument hereunto attached the _ ........ _ - - - Princina_1 __.Clerk - - ...... _-- - - - -- -------- - - - - -- --- - - - - - Editor of EL SBOUNDO A$R;AM. a newspaper of general circulation. published and circulated weekly in the City of El Segundo, in said County and State; that said newspaper has been so published and circulated at regular intervals of one week for more than one year immediately preceding the publication of the instrument hereunto annexed; that said newspaper is, and was, at all of the times herein mentioned, s newspaper of general circulation within the meaning of Section 4480 of the Political Code of the State of California; that as provided by said section, said newspaper is published for the dissemination of local or telegraphic news and intelligence of a general character, having a bona fide subscription list of paying subscribers; that said newspaper is not and was not at any of the times herein referred to, devoted to the interests, or published for the entertainment or instruction of a particular class, profession, trade, calling, race or denomination, or for any number of such classes, pr ofeasions, trades, callings, race; or denominations, and that said newspaper is not devoted to or published for, nor was it at any of the tunes herein mentioned devoted to or published for the purpose, whether avowed or otherwise, of entertaining or instructing such classes, professions, trades, callings, races or denomin- ations, or any of such clrsses, professions, trades, callings, races or denominations. That the notice, order, ordinance, resolution or instrument hereunto attached on page ........... mumbered hereof in all respects, including subject matter, and size and arrangement of type, is a full true and correct copy of the said notice, ordinance, resolution or instrument, in words and figures exactly as published; that the same was set and printed in type not smaller than nonpareil and that the body of the same was preceded with words printed in black -face type not smaller than nonpareil, describing and expressing in general terms the purpose and character of the notice, order, ordinance, resolution or instrument intended to be published, as will appear from an inspection of She said annexed instru- ment; that the ......... Or.dnanc_Q. }O� 7.54 ...................................................... _... - .................. of which the annexed is a printed copy as hereinabove stated, was published and printed in said news- paper at least------ 3AP.P.. week IX by- _-_- --- QR_Q........... consecutive publication_...._.. commencing on the ------ 3 ............... day of _, _e hr, ar 'dry....................... A. D..19. 7.1, and ending on the ....... 3---..................... day of -- Feb _r.uar.Y ...... ---------- - .... .... A. D. 19- -_71., and as often during said time as said newspaper wss regu- larly issued, to -wit: _2_ eb. r_ uQxy.-_ 3.. L. ... 1 9. 2. 1.._.._.... ...... _ ......... - .............. .... - ...... —....................................... Subscribed and //sworn to before me this ......... day of -- ---- -- A. D. 19,7Z.... City clerk of the City of El Segundo, County Of Los Angeles, State of California. By........................................... ....... .. ................ --- -- -........ Deputy City Clerk ad said City.