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HomeMy WebLinkAbout1983-01-18; City Council; 6935-3; Approving Articales of Incorportion and By-Laws,-- CITi OF CARLSBAD - AGENDA BILL 4B#- 6935-3 TITLE MTG. 1-18-83 DEPT. UTL COMMUNITY CABLE TELEVISION (. APPROVING ARTICLES OF INCORPORATION AND BY-LAWS FOR THE FOUNDATION FOR CARLSBAD DEPT. HD CITY AITY@'f CITY MGR.~ RECOMMENDED ACTION: Adopt Resolution No. ?/a / approving Articles of Incorporation and By-Laws for the Foundation for Carlsbad Community Cable Television and direct staff to solicit for interested community residents to be nominated to the Board of Directors. ITEM EXPLANATION: Council approved an agreement with Carlsbad Cablevision and La Costa Community Antenna System for the development of a non-profit foundation to further the public access of cable television. The operators have submitted Articles of Incorporation and By-Laws for this foundation. Essential elements of these documents are as follows : 1. Operators contribute 1% of basic service revenues to the foundation (received from and after June 1, 1982) 2. Board of Directors is a seven-member board. Two members to be appointed by the operators and five members to be appointed by the City Council. Term of the Directors to be two years and serve without compensation. FISCAL IMPACT: No direct impact, however, it is anticipated that city staff will provide administrative support to the Foundation during organization and for such time as is required by the Council and the Board of Directors. EXHIBITS : A. Resolution No. ?/ 2. / B. Articles of Incorporation C. By-Laws D. Agreement of April 21, 1982 7 I 1 2 3 4 5 6 7 8 9 10 11 12 13 ' 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 7121 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE ARTICLES OF INCORPORATION AND THE COMMUNITY CABLE TELEVISION BY-LAWS FOR THE FOUNDATION FOR CARLSBAD WHEREAS, the City of Carlsbad entered into an agreement with Carlsbad :ablevision and La Costa Community Antenna System on April 21, 1982 to 2stablish a Foundation for Carlsbad Community Cable Television; and, WHEREAS, the agreement specifies that the Council will approve the irticles of Incorporation and the By-Laws for the Foundation for Carlsbad 2ommunity Cable Television; and, 1 WHEREAS, Carlsbad Cablevision and La Costa Community Antenne System have submitted for approval the Articles of Incorporation and the By-Laws for the 7oundation for Carlsbad Community Cable Television; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of zarlsbad as follows: 1. The Articles of Incorporation and the By-Laws for the Foundation for 2arlsbad Community Cable Television, a copy of which is on file with the City Xerk, and incorporated herein by reference, is hereby approved. PASSED, APPROVED AND ADOPTED at a regular meeti.ng of the Carlsbad City Zouncil held the day of , 1983, by the following vote, to wit: AYES: Council I.lembers Casler, Lewis, Kulchin, Chick and Prescott NOES: None ABSENT : None !TTEST : 1LE'l'HA L. RAUTENKRANZ, City Clerk [SEAL,) J. &A%/ MARY H. &ASLER, Mayor ARTICLES OF INCORPORATION OF FOUNDATION FOR CARLSBAD COMMUNITY CABLE TELEVISION A Nonprofit Public Benefit Corporation ARTICLE I The name of this Corporation is FOUNDATION FOR CARLSBAD COMMUNITY CABLE TELEVISION. - ARTICLE I1 i A. This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized exclusively for charitable purposes under the Nonprofit Benefit Corporation Law of the State of California. B. This Corporation is organized and will be oper- ated ir) accordance with Section 53066.1 of the California Government Code, as amended and effective January 1, 1983, for the specific purposes of encouraging, promoting and pro- viding: (1) Instructions and training for individuals, groups, entities and agencies interested in using the community ser- vice cable television channels available within the city limits of the City of Carlsbad, California; (2) the nondiscriminatory employment and promotion of other opportunities for minorities and women in the cable television industry; (3) public in- formation on the effective use of cable television community service channels; and (4) other activities in furtherance of promoting community access to and community programming of the community service cable television channels available within the city limits of the City of Carlsbad, California. Further, the Corporation may engage in any and all other ac- tivities that further and are consistent with the charitable purposes of this Corporation. 3 . ARTICLE I11 The name in the State of California of this Corpora- tion's initial agent for service of process is: HARRIGAN, RUFF & OSBORNE, A PROFESSIONAL CORPORATION. ARTICLE IV A. This Corporation is organized and will be oper- ated exclusively for charitable purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1954 and within the meaning of Section 23701(d) of the California Reve- nue and Taxation Code. B. The Corporation shall not conduct or carry on any activities not permitted to be conducted or carried on by an organization excempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code, or an organi- zation the contributions to which are deductible under Sec- tions 170, 642, 2055, or 2522 of the Internal Revenue Code. C. No part of the net earnings of the Corporation shall inure to the benefit of any director or officer of the Corporation or any private individual whatsoever (except that reasonable compensation may be paid for, and reimbursement i may be made for reasonable expenses incurred in connection with services rendered to or for the Corporation in further- ance one or more of its objects and purposes. No director or officer of the Corporation or any private person whatsoever shall be entitled to share in the distribution of any of the corporate assets on dissolution of the Corporation. - ' .D. No substantial part of the Corporation's ac- tivities shall be devoted to the carrying on of propaganda or otherwise attempting to influence legislation, and the Corpo- ration shall not participate or intervene in (including the publication or distribution of statements) any political cam- paign on behalf of any candidate for public office. ARTICLE V Notwithstanding any other provision of these Articles of Incorporation, if the Corporation is at any time a private foundation as that term is defined in Section 509 of the In- ternal Revenue Code, the following provisions shall apply: -2- . A. The Corporation shall distribute its income for each taxable year at such time and in such a manner as not to subject the Corporation to the tax on undistributed income imposed by Section 4942 of the Internal Revenue Code. B. The Corporation shall not engage in any act of . self-dealing, as defined in Section 4941(d) of the Internal Revenue Code. C. The Corporation shall not retain any excess business holdings, as defined in Section 4943(c) of the In- ternal Revenue Code. D. The Corporation shall not make any investments in such a manner as to subject it to tax under Section 4944 of the Internal Revenue Code. E. The Corporation shall not make any taxable ex- penditures, as defined in Section 4945(d) of the Internal Revenue Code. ARTICLE VI - The Corporation shall have no members, and the Cor- poration shall have no capital stock. i ARTICLE VI1 The Corporation shall make its services, facilities, and programs available to all persons regardless of race, color, creed, national origin, sex, or handicap, and the Cor- poratiofi shall not discriminate in any way against any person on the basis of race, color, creed, national origin, sex or handicap. ARTICLE VI11 The property of this Corporation is irrevocably dedicated to charitable purposes and no part of the net income or assets of this Corporation shall ever inure to the benefit of any director, officer or member thereof or to the benefit of any private person. Upon the dissolution or winding up of the Corporation, its assets remaining after payment, or provi- sion for payment, of all debts and liabilities of this provi- sion for payment, of all debts and liabilities of this Corpo- ration shall be distributed to a nonprofit fund, foundation or corporation which is organized and operated exclusively -3- .- for charitable purposes and which has established its tax exempt status under Section 501(c)(3) of the Internal Revenue Code. Dated: TONY ACONE Sole Incorporator I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. TONY ACONE Sole Incorporator ART1 (A) - 4- BYLAWS OF FOUNDATION FOR CARLSBAD COMMUNITY CABLE TELEVISION A California Nonprofit Public Benefit Corporation ARTICLE I OFFICES Section 1. Principal Office. The Board of Directors shall fix the location of the principal executive office of the corporation at any place within the City of Carlsbad, in the State of California, or at such other location as the Board of Directors may from time to time determine. - i Section 2. Other Offices. The Board of Directors may at any time establish branch or subordinate offices at any place or places within the State of California. %- ARTICLE I1 BOARD OF DIRECTORS Section 1. Powers. Subject to the provisions of the California Nonprofit Public Benefit Corporation Law and any limitations in the articles of incorporation and these Bylaws, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors. Each Director shall exercise such powers and other- wise perform such duties in good faith, in the manner such Director believes to be in the best interests of the corpora- tion, and with such care, including reasonable-inquiry, using ordinary prudence, as a person in a like position would use 7 under similar circumstances, in accordance with Section 5231 of the California Nonprofit Public Benefit Corporation Law. Section 2. Number of Directors. The authorized number of Directors shall be seven ' (7) until changed by a duly adopted amendment to this bylaw adopted by the unanimous vote or unanimous written consent of the Directors. Section 3. Oualification of Directors. Five (5) of the Directors shall be elected or ap- pointed by a majority vote of the members of the City Council of the City of Carlsbad, and the five (5) persons so selected shall reflect the diversity of the population of the City of Carlsbad and shall include persons representing nongovernmental user groups and governmental user groups of community service cable television channels. The remaining two (2) Directors shall be selected by a majority vote of all of the cable television operators who are operating within the City of Carlsbad, and the two (2) persons so selected shall be knowledgeable in cable tele- vision and shall have some familiarity with community service cable televi si on programming. - i Section 4. Election of Directors and Tenure of Office. Directors who satisfy the qualifications set forth in Section 3 of this Article I1 shall be elected to serve for staggered two (2) year terms, or until their successors are elected4,an'd have qualified. Except that with regard to the first Board of Directors, three (3) of the Directors elected by the City Council of the City of Carlsbad shall be elected to serve for an initial period of one (1) year, and such ini- tial term of office shall expire on January 31, 1984. The remaining two (2) Directors elected by the City Council of the City of Carlsbad and the two (2) Directors elected by the cable television operators shall serve for an initial period of two (2) years, and such initial term of office shall expire on January 31, 1985. Thereafter, Directors shall be elected on Febru- ary 1st of each year, to fill the vacancies then occurring, with the first such election to be scheduled for February 1, 1984. -2- Section 5. Removal of Directors. Any individual Director, or the entire Board of Di- rectors, may be removed at any time from office, with or with- out cause, as provided in Sections 5221, 5222 and 5223 of the California Corporations Code; provided that any Director to .be removed without cause may only be removed with the unani- mous written consent of the persons entitled to elect the Di- rector in question, as required by Section 5222(f) of the California Corporations Code. Section 6. Vacancies. Vacancies in the Board of Directors shall be filled by the vote of the persons entitled to elect the Director whose position has been vacated in accordance with Section 3 of this Article 11. Each Director so elected shall hold office for the balance of the term of such position, and until a suc- cessor has been elected and qualified. A vacancy or vacancies in the Board of Directors shall be deemed to exist in the event of the death, resigna- tion, or removal of any Director, or if the authorized number of Directors is increased. - Any Director may resign effective upon giving writ- e ten notice to the chairman of the Board, the president, the secretary, or the Board of Directors, unless the notice spe- cifies a later time for that resignation to become effective. If the resignation of a Director is effective at a future time, the Board of Directors may elect a successor to take office when the resignation becomes effective. 4. No reduction of the authorized number of Directors shall have the effect of removing any Director before that Director's term of office expires. Section 7. Place and Manner of Meetings. Regular meetings of the Board of Directors may be held at any place within or outside the City of Carlsbad, California that has been designated from time to time by reso- lution of the Board. In the absence of such a designation, regular meetings shall be held at the principal executive office of the corporation. Special meetings of the Board shall be held at any place within or outside the City of Carlsbad, California that has been designated in the notice of the meeting or, if not stated in the notice or there is no notice, at the principal executive office of the corporation. -3- .. c-. .. . Any meeting, regular or special, may be held by con- ference telephone or similar communication equipment, so long as all Directors participating in the meeting can hear one another, and all such Directors shall be deemed to be present in person at the meeting. Section 8. Annual Meeting. The annual meeting of the Directors shall be held, each year, at the time and on the day set forth below: Time of Meeting: Date of Meeting: or at such other date and time as may be fixed by the Board of Directors; provided however, that such date shall not be later than fifteen (15) months after (i) the organization of the corporation, or (ii) the last annual meeting of Directors. If this day shall be a legal holiday, then the meeting shall be held on the next succeeding business day, at the same hour. At the annual meeting, the Directors shall consider reports of the affairs of the corporation and transact such other business as may properly be brought before the meeting. - Section 9. Other Regular Meetings. Other regular meetings of the Board of Directors shall be held without call at such time as shall from time to time be fixed by resolution of the Board of Directors. Such regular meetings may be held without notice. i Section 10. Special Meetings. Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the chairman of the Board or the president or any vice president or the secretary or any two (2) Directors. +bL Notice of the time and place of special meetings shall be delivered personally or by telephone to each Director or sent by first class mail or telegram, charges prepaid, addressed to each Director at that Director's address as it is shown on the records of the corporation. In case the no- tice is mailed, it shall be deposited in the United States mail at least four (4) days before the time of the holding of the meeting. In case the notice is delivered personally, or by telephone or telegram, it shall be delivered personally, or by telephone or to the telegraph company at least forty- eight (48) hours before the time of the holding of the meet- ing. Any oral notice given personally or by telephone may be -4- rc-. communicated either to the Director or to a person at the office of the Director who the person giving the notice has reason to believe will promptly communicate it to the Direc- tor. The notice need not specify the purpose of the meeting nor the place if the meeting is to be held at the principal executive office of the corporation. Section 11. Waiver of Notice. When all of the Directors are present at any Direc- tors' meeting, however called or noticed, and either (i) sign a written consent thereto on the records of such meeting, or, (ii) if a majority of the Directors are present and if those not present sign a waiver of notice of such meeting or a con- sent to holding the meeting or an approval of the minutes thereof, whether prior to or after the holding of such meet- ing, which said waiver, consent or approval shall be filed with the corporate records or made a part of the minutes of the meeting held pursuant thereto, or, (iii) if a Director attends a meeting without notice but without protesting, prior thereto or at its commencement, the lack of notice to him, then the transactions thereof are as valid as if had at a meeting regularly called and noticed. Section 12. - Directors Acting by Unanimous Written Consent. i Any action required or permitted to be taken by the Board of Directors may be taken without a meeting and with the same force and effect as if taken by a unanimous vote of Directors, if authorized by a writing signed individually or collectively by all members of the Board. Such consent shall be filed with the regular minutes of the Board. +* Section 13. ouorum. A majority of the authorized number of Directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 14 of this Article 11; provided however, that such quorum may not be less than two (2) Directors unless the authorized number of Directors is one (l), in which case one (1) Director constitutes a quorum. Every act or decision done or made by a majority of the Direc€ors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Direc- tors, subject to the provisions of Section 5234 of the Corpo- rations Code of California (as to approval of contracts or transactions between this Corporation and another corporation in which a Director is involved) and Section 5238 of that Code (as to indemnification of Directors). A meeting at which a -5- quorum is initially present may continue to transact business notwithstanding the withdrawal of Directors, if any action taken is approved by at least a majority of the required quorum for that meeting. Section 14. Adjournment. A majority of the Directors present, whether or not a quorum is present, may adjourn any Directors' meeting to another time and place. Notice of the time and place of hold- ing an adjourned meeting need not be given to absent Directors if the time and place be fixed at the meeting adjourned. If the meeting is adjourned for more than twenty-four (24) hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the Direc- tors who were not present at the time of the adjournment. Section 15. Compensation of Directors. Directors, as such, shall not receive any stated salary for their services, but by resolution of the Eoard a fixed sum and expense of attendance, if any, may be allowed for attendance at each regular and special meeting of the Board; provided that nothing herein contained shall be con- strued to preclude any Director from serving the corporation in any other capacity and receiving compensation therefor. - i Section 16. Conflicts of Interest. No contracts or other transaction between the Corpo- ration and one or more of its Directors or any other corpo- ration, firm, association or entity in which one or more of its Directors are Directors or Officers or are financially interesk shall be either void or voidable solely because of such relationship or interest or solely because such Directors are present at the meeting of the Board or' Directors or a com- mittee thereof which authorizes, approves or ratifies such contract or transaction or solely because their votes are counted for such purpose if: (a) The fact of such relationship or interest is disclosed or known to the Board of Directors or committee which authorizes, approves or ratifies the contract or trans- action by a vote or consent sufficient for the purpose without counting the votes or consents of such interested Directors; and (b) The contract or transaction is fair and reasonable to the Corporation. -6- c Common or interested Directors shall not be counted in deter- mining the presence of a quorum at a meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. ARTICLE I11 COMMITTEES Section 1. Committees of Directors. The Board of Directors may, by resolution adopted by a majority of the authorized number of Directors, desig- nate one or more committees, each consisting of two (2) or more Directors, to serve at the pleasure of the Board. The Board may also, by resolution adopted by a majority of the authorized number of Directors, designate one (1) or more Directors as alternate members of any committee, who may re- place any absent member at any meeting of the committee. Any committee, to the extent provided in the resolution of the Board, shall have all the authority of the Board, except with respect to: - (a) The approval of any action which is con- trary to the Nonprofit Public Benefit Corporation Law of Cali- i fornia, or is inconsistent with the charitable purposes of this Corporation; (b) The filling of vacancies on the Board of Directors or in any committee; (c) The fixing of compensation of the Direc- tors for\serving on the Board or on any committee; (d) The amendment or repeal of Bylaws or the adoption of new Bylaws; (e) The amendment or repeal of any resolution of the Board of Directors which by its express terms is not so amendable or repealable; or (f) The appointment of any other committees of the Board of Directors or the members of these committees. Section 2. Budget and Finance Committee. The Board of Directors may, by a resolution adopted by a majority of the entire Board of Directors, establish a Budget and Finance Committee, which shall consist of the -7- Chief Financial Officer, who shall be the Chairman of such Committee, and two (2) additional members of the Board of Directors, who shall be designated by the entire Board of Directors at its annual meeting. The Budget and Finance Com- mittee shall have the responsibility for formulating recommen- dations to the entire Eoard of Directors concerning the general financial policies of the Corporation, for reviewing the an- nual budget of the Corporation for recommending approval of such budget to the entire Board of Directors and for such other duties of a similar nature as may be assigned to it. Section 3. Meetings and Action of Committees. Meetings and action of committees shall be governed by, and held and taken in accordance with, the provisions of Article I1 of these Bylaws, Sections 7 (Place and Manner of Meetings), 9 (Other Regular Meetings), 10 (Special Meetings), 11 (Waiver of Notice), 12 (Directors Acting by Unanimous Writ- ten Consent), 13 (ouorum), and 14 (Adjournment), with such changes in the context of these Bylaws as are necessary to substitute the committee and its members for the Board of Di- rectors and its members, except that the time of regular meet- ings of committees may be determined either by resolution of the Board of Directors or by resolution of the committee; spe- cia1 meetings of committees may also be called by resolution of the Board of Directors; and notice of special meetings of i committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board of Directors may adopt rules for the government of any committee not inconsistent with the provisions of these Bylaws. - ARTICLE IV OFFICERS Section 1. Officers. The officers of the corporation shall be a presi- dent, or chief executive officer, a secretary, and a chief financial officer. The corporation may also have, at the dis- cretion of the Board of Directors, a chairman of the Board, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article IV. Any number of offices may be held by the same person. -8- Section 2. Election. The officers of the corporation, except such offi- cers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article shall be chosen an- nually by the Board of Directors, and each shall hold his ' office until he shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and qualified. Section 3. Subordinate Officers. The Board of Directors may appoint, and may empower the president to appoint, such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the Bylaws or as the Board of Directors may from time to time determine. Section 4. Removal and Resignation of Officers. Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board of Directors, at any regu- lar or special meeting of the Board, or, except in case of an officer chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors. - Any officer may resign at any time by giving writ- ten notice to the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified .in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party. Section 5. Vacancies. A vacancy in any office because of death, resigna- tion, removal, disqualification or any other cause shall be filled in the manner prescribed in the Bylaws for regular appointments to such office - Section 6. Chairman of the Board. The chairman of the Board, if such an officer be elected, shall, if present, preside at meetings of the Board of Directors and exercise and perform such other powers and -9- duties as may be from time to time assigned to him by the Board of Directors or prescribed by the Bylaws. If there is no president, the chairman of the Board shall in addition be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 7 of this Article IV. Section 7. President/Chief Executive Officer. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the chairman of the Board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall, sub- ject to the control of the Board of Directors, have general supervision, direction and control of the business and offi- cers of the corporation. He shall preside at all meetings of the Board of Directors, in the absence of the chairman of the Board, or if there be none. He shall be ex officio a member of all the standing committees, including the executive com- mittee, if any, and shall have the general powers and duties of management usually vested in the office of president of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the Bylaws. - - Section 8. Vice President. i In the absence or disability of the president, the vice presidents, in order of their rank as fixed by the Board of Directors, or if not ranked, the vice president designated by the Board of Directors, shall perform all the duties of the president, and when so acting shall have all the powers of, and be subject to, all the restrictions upon, the presi- dent. The vice presidents shall have such other powers and performisuch other duties as from time to time may be pre- scribed for them respectively by the Board of Directors or the Bylaws. Section 9. Secretary. The secretary shall keep or cause to be kept, at the principal executive office and such other place as the Board may order, a book of minutes of all meetings of share- holders, the Board, and its committees, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at Board and committee meetings, the number of shares present or represented at shareholders' meetings, and the pro- ceedings thereof. The secretary shall keep, or cause to be kept, a copy of the Bylaws of the corporation at the principal executive office or business office in accordance with Section -10- 5160 of the California Nonprofit Public Benefit Corporation Law. The secretary shall give, or cause to be given, no- tice of all the meetings of the Directors and of any committees thereof required by these Bylaws or by law to be given, shall keep the seal of the corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board. Section 10. Chief Financial Officer. This officer shall keep and maintain, or cause to be kept and maintained in accordance with generally accepted accounting principles, adequate and correct accounts of the properties and business transactions of the corporation, in- cluding accounts of its assets, liabilities, receipts, dis- bursements, gains, losses, capital, earnings (or surplus) and shares. The books of account shall at all reasonable times be open to inspection by any Director. The chief financial officer shall deposit all moneys and other valuables in the name and to the credit of the cor- poration with such depositaries as may be designated by the Board of Directors. He shall disburse the funds of the corpo- ration as may be ordered by the Board of Directors, shall render to the president and Directors, whenever they request it, an account of all of his transactions as chief financial officer and of the financial condition of the corporation, and shall have other powers and perform such other duties as may be prescribed by the Board of Directors or by the Bylaws. - ARTICLE V <. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS The corporation shall, to the maximum extent per- mitted by Section 5238 of the California Nonprofit Public Benefit Corporation Law, indemnify each of its agents against expenses, judgments, fines, settlements and other amounts ac- tually and reasonably incurred in connection with any proceed- ing arising by reason of the fact any such person is or was an agent of the corporation. For purposes of this Section, an "agent" of the corporation includes any person who is or was a Director, officer, employee, or other agent of the cor- poration, or is or was serving at the request of the corpora- tion as a Director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other en- terprise, or was a Director, officer, employee, or agent of a -11- . corporation which was a predecessor corporation of the corpo- ration or of another enterprise at the request of such prede- cessor corporation. In order to meet any of its obligations under this Section, the corporation may purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such whether or not this corporation would have the power to indem- nify the agent against that liability under the provisions of this Article. Notwithstanding any other provision of these Bylaws to the contrary, the Corporation shall not make any payment which would give rise to any liability for taxes or penalties under Chapter 42 of the Internal Revenue Code of 1954, if the Corporation is at such time a private foundation. ARTICLE VI PAYMENTS MADE TO OFFICERS, DIRECTORS OR OTHER EMPLOYEES Section 1. Reimbursement to Corporation of Amounts Disallowed by Internal Revenue Service. Any payments heretofore or hereafter made to or for a Director, officer or other employee of the corporation such as salary, commission, bonus, interest, rent, loans, advances, entertainment expenses incurred, or any other expenses deemed personal rather than corporate, which are disallowed in whole or in part as a deductible expense by the Internal Revenue Service*or' Franchise Tax Board, shall be reimbursed by such person to the corporation to the full extent of such disallow- ance. Section 2. Duty to Enforce Payment. It shall be the duty of the Directors, as a Board, to enforce payment of each such amount disallowed. In lieu of payment by such person, subject to the determination of the Directors, proportionate amounts may be withheld from his future compensation payments until the amount owed to the cor- porationhas been recovered. -12- ARTICLE VI1 CORPORATE RECORDS AND REPORTS Section 1. Records. The corporation shall maintain, in accordance with generally accepted accounting principles, adequate and correct accounts, books and records of its business and properties and shall maintain minutes of the proceedings of the Board of Directors. All of such books, records and accounts shall be kept at its principal executive office in the State of Cali- fornia, as fixed by the Board of Directors from time to time. Section 2. Inspection of Books and Records. All books and records provided for in Section 6320 of the California Corporations Code shall be open to inspec- tion of the Directors from time to time and in the manner pro- vided in said Section 6310 through 6313. Section 3. Certification and Inspection of Eylaws. - The original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the secretary, shall be kept at the corporation's principal executive office and shall be open to inspection by the Directors of the Corpo- ration, at all reasonable times during office hours, as pro- vided in Section 5160 of the Corporations Code. Section 4. Checks, Drafts, Etc. * All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name 6f or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors. Section 5. Authority to Execute Contracts. The Board of Directors, except as otherwise provided in the Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instru- ment in the name of and on behalf of the corporation. Such authority may be general or confined to specific instances. Unless so authorized by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or agreement, or to pledge -13- its credit, or to render it liable for any purpose or to any amount, except as provided in Section 5214 of the Corporations Code. Section 6. Annual Report to Directors. The annual report to Directors referred to in Sec- tions 6321(a) and (e) of the California Corporations Code shall be prepared and distributed within one hundred twenty (120) days of the close of the Corporation's fiscal year. Section 7. Financial Statements. A copy of any annual financial statement and any income statement of the corporation for each quarterly period of each fiscal year, and any accompanying balance sheet of the corporation as of the end of each such period, that has been prepared by the corporation shall be kept on file in the principal executive office of the corporation for twelve (12) months and each such statement shall be exhibited at all rea- sonable times to any Director demanding an examination of any such statement or a copy shall be mailed to any such Director. The Directors shall have such rights to review the financial statements of the corporation at the principal executive office of the corporation at reasonable times or to receive a copy of such statements, as provided in Section 6334 of the California Corporation Code. - The quarterly income statements and balance sheets referred to in this Section shall be accompanied by the re- port, if any, of any independent accountants engaged by the corporation or the certificate of an authorized officer of the corporation that the financial statements were prepared without audit from the books and records of the corporation. Section 8. Annual Statement of General Information. Within ninety (90) days after the date of incorpora- tion and annually thereafter, the officers of this corporation shall prepare and file with the California Secretary of State a statement setting forth the information as requested by and in compliance with Section 6210 of the California Corporations Code. -14- ARTICLE VI I I FISCAL YEAR The initial fiscal year of this Corporation shall commence on , 1982, and shall end on Thereafter, the fiscal year of the Corporation shall begin on and shall end on of each year. ARTICLE IX PROPERTY OF CORPORATION Section 1. Property Used Exclusively for Charitable PurDoses. During the existence of this Corporation the assets and property of this Corporation, including all personal prop- erty and all real property wherever situated, shall be irrev- ocably dedicated, held, used and applied exclusively to promote and further the general charitable purposes and objectives of this Corporation, as set forth in its Articles of Incorpora- tion. No real property owned by the Corporation shall be conveyed or encumbered except by authority of a two-thirds (2/3) majority vote of the Board of Directors of the Corpora- tion. Any such conveyance or encumbrance shall be executed by the President of the Corporation in its name, and such in- strument shall be duly attested and sealed by the Secretary of the Corporation. * Section 2. Distribution of Assets Upon Di ssolution. The assets and property of this Corporation are ir- revocably dedicated to charitable purposes, and no part of the net income or assets shall ever inure to the benefit of any private person. Upon the dissolution and winding up of the Corporation, its assets remaining after payment, or provi- sion for payment, of all debts and liabilities of the Corpo- ration shall be distributed to a nonprofit fund, foundation or corporation which is organized and operated exclusively for charitable purposes, and which has been granted tax exempt status under Section 501(c)(3) of the Internal Revenue Code of 1954; provided that such distribution shall also comply with the provisions of Section 6715 and 6716 of the California Nonprofit Public Benefit Corporation Law pertaining to distri- butions of assets held under trust or subject to conditions imposed by donors or grantors. -15- ARTICLE X AMENDMENT TO BYLAWS Section 1. By Directors. Except as otherwise provided in these Bylaws, the Board of Directors may, by a vote of two-thirds (2/3) of the full Board, amend or repeal any of these Bylaws, or may adopt additional Bylaws; except that these Bylaws may not be amended, altered or modified in any manner which would alter the gen- eral charitable purposes of this Corporation or which would jeopardize the tax exempt status of this Corporation as a charitable organization under Section 501(c)(3) ofthe Internal Revenue Code and Section 23701(d) of the California Revenue and Taxation Code. Section 2. Record of Amendments. Whenever an amendment or new bylaw is adopted, it shall be copied in the book of Bylaws with the original By- laws, in the appropriate place. If any bylaw is repealed, the fact of repeal with the date of the meeting at which the repeal was enacted or written assent was filed shall be stated in said book. -$ ARTICLE XI MISCELLANEOUS Section 1. Construction and Definitions. 4, Unless the context otherwise requires, the general provisions, rules of construction, and definitions contained in the General Provisions of the California Corporations Code and in the California Nonprofit Public Benefit Corporation Law shall govern the construction of these Bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, the masculine gender includes the feminine and neuter genders, and the term "person" includes both a corporation and a natu- ral person. Section 2. Representation of Shares of Other CorDorations - The president, chairman of the Board, or any other officer or officers authorized by the Board or the president are each authorized to vote, represent, and exercise on behalf -16- of the corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of the corporation. The authority herein granted may be exer- cised either by any such officer in person or by any other person authorized so to do by proxy or power of attorney duly executed by said officer. Section 3. Seal. The corporate seal shall be circular in form, and shall have inscribed thereon the name of the corporation, the date of its incorporation, and the word "California". -17- 23 L CERTIFICATE OF ADOPTION OF BYLAWS OF A California Corporation Action by Incorporator The undersigned Incorporator of the above named cor- poration hereby adopts the same as the Bylaws of said coi-pora- tion. EXECUTED this day of , 19 . TONY ACONE, Sole Incorporator Certificate bv Secretarv I DO HEREBY CERTIFY AS FOLLOWS: That I am the duly elected, qualified and acting Secretary of the above named corporation; that the foregoing Bylaws were adopted as the Bylaws of said corporation on the date set forth above by the Incorporator of said corporation. - s IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal this day of r 19-- , Secretary % Certificate by Secretary of Adoption by Vote THIS IS TO CERTIFY: That I am the duly elected, qualified and acting Secretary of the above named corporation and that the above and foregoing code of Bylaws was submitted to the Directors at the first meeting held on the date set forth in the Bylaws and recorded in the minutes thereof and was ratified by the Board of Directors. IN WITNESS WHEREOF, I have hereunto set my hand this day of r 19-- , Secretary BLAWS (A) -18- AGREEMENT AN AGREEMENT by Carlsbad Cablevision, A Limited Partnership and La Costa Community Antenna System, Inc. ("Operators") and the City of Carlsbad, A Municipal Corporation (''Cityt') for community based CATV programming. RECITALS WHEREAS, Operators in a memorandum dated February 8, 1982 offered to pay 1% of their basic cable service revenues to a non profit foundation to provide community based CATV programing provided City acted favorably on a rate deregulation ordinance; and WHEREAS, the City at a public meeting held March 23, 1982, by motion duly made and seconded directed preparation of an ordinance amending the Carlsbad Municipal Code where by the Operators rates and charges to subscribers for basic service of delivery of CATV signals would be deregulated; and WHEREAS, one of the considerations for the action by City was the offer by the Operators; and WHEREAS, the City has requested that Operators confirm its commitment to form the Foundation and participate (financially and otherwise) therein by making this Agreement; c ,. r , *: ' - , ... .- t- 'C NOW, THEREFORE, operators agree as follows: 1. That all of the above recitals are true and shall be a part of this Agreement. 2. That each Operator hereby agrees to pay to the Foundation one percent of Operator's annual gross revenues derived from its basic cable television service within the City of Carlsbad, such amounts to be paid quarterly commencing September, 1982. 3. Operators will take all steps necessary to establish a "Carlsbad Foundation for Community Access Television". The Foundation will be governed by a board of trustees'approved by the City Council. 4. The Foundation shall be structured so as to permit funds to be received from any legitimate source for the propagation of community access programing in Carlsbad 5. Operators agree to pay the Foundation one percent of Grantee's annual gross revenues derived from its basic cable television service within the City of Carlsbad received from and after June 1, 1982. Payments will be made quarterly with the first payment due on September, 1982. Any payments due prior to formation of the Foundation shall be placed in an interest .bearing trust account by Operators to be held for and paid over to the Foundation when it is formed. 6. Operators shall submit the bylaws.and operating rules of the Foundation to the City Council for approval. '. '_. I- --' 7. The Foundation shall be organized and maintained in form and substance reasonably satisfactory to the City and the Operators. 8. Either Operator may elect to cancel their participation in this agreement and terminate its obligation to pay a percentage of its revenues from basic cable television service to the foundation in the event the City rescinds or terminates the right of Operator to place into effect rate increases under the provisions of Section 5.28.175 of Title 5, Chapter 5.28 of the Carlsbad Municipal Code. DATE : APRK 2\. 1982 Citv of Carlsbad La Costa Community Antenna System, Inc. U W