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HomeMy WebLinkAbout1197 - Community Antenna Television System• s . r THS -aem 12/7/66 NO. — r AN ORDINANCE OF THE CITY OF NEWPORT BEACH GRANTING TO WARNER BROS. TV SERVICES, INC. A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE A COMMUNITY ANTENNA TELEVISION SYSTEM WITHIN SAID CITY The City Council of the City of Newport Beach does ordain as follows- SECTION 1. Definitions. Wherever in this ordinance the following words or phrases are used, they shall have the respective meanings assigned to them in the following definitions; and words or phrases not defined in this section which are defined in any franchise document shall have the same meaning in this ordinance assigned to them in such fran- chise document, unless the context in which they are used shall clearly indicate a different meaning: (a) "City" shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. (b) "Council" shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) "Person" shall mean any individual, firm, partner- ship, association, corporation, company or organization of any kind. (d) "Grantee" shall mean Warner Bros. TV Services, Inc., a Delaware corporation, its employees, agents, successors and assigns. (e) "CoWmunity Antenna Television System!' or "CATV System" shall mean a system of antennae, coaxial cables, wave guides, poles, wires, underground conduits, manholes and other conductors, equipment or facilities designed, constructed or used for the purpose of providing television, radio or other service by cable or through its facilities as herein contemplated. CATV shall not mean or include the transmission of any special program I • f ' • • or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as pay televisions (f) "Subscribers" shall mean any person or entity receiving for any purpose the CATV service of the Grantee herein. (g) "Gross Annual Receipts" shall mean any and all com- pensation in the form of gross rental and /or service receipts, including initial installation charges, received directly or in- directly from subscribers or users in payment for CATV services received within the City. Gross annual receipts shall not include any taxes on services furnished by the Grantee imposed directly on any sub- scriber or used by any city, state or other governmental unit and collected by the Grantee for such governmental unit. (h) "Franchise Area" shall mean the territory within the City throughout which Grantee shall be authorized to construct, maintain and operate its system and shall include any enlargements thereof and additions thereto. (i) "Franchise Documents" shall mean and shall include all of the following- (1) Article XIII of the Charter of the City of Newport Beach. (2) Chapter 5.44 of Title 5 of the Newport Beach Municipal Code as the same now exists or as it may hereafter be amended. (3) Any and all rules and regulations governing the operation of CATV Systems within the City of Newport Beach which are adopted by the City Council. (4) The written acceptance of CATV Franchise filed with the City by the Grantees (j) "Street" shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, 20 path, alley, court, sidewalk, parkway, or right of way whether or not improved, now or hereafter existing as such throughout the City. • SECTION 2. Grant of Franchise. There is hereby granted to Warner Bros. TV Services, Inc., a Delaware corporation, by the City a nonexclusive franchise to con- struct, erect, operate and maintain, in, upon, along, across, above, over and under the public streets, alleys, public ways and public places, now or in the future dedicated for public use in the City, poles, wires, cables, underground conduits, manholes and other tele- vision conductors, appurtenances and fixtures necessary or convenient for the maintenance and operation in the City of a community antenna television system to transmit television and FM radio signals, within the franchise area described as follows: All of the territory within the boundaries of the City of Newport Beach as such boundaries exist on the effective date of this ordinance, with the exception of the following ter- ritory- That portion of Blocks 51, 55, 56, 57, 92, 93, and 96 of • Irvine's Subdivision in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 1, Page 88 of Miscellaneous Record Maps in the office of the County Recorder of said County, described as follows: E Beginning at the West corner of said Block 96; thence Southeasterly along the Southwesterly line of said Block 96 to the Easterly corner of Tract No. 673 as per map recorded in Book 20, Pages 17 and 18 of Miscellaneous Maps, said corner being also an angle point in the boundary of the Harbor View Annexation to the City of Newport Beach as established by City Ordinance No. 896; thence Northeasterly along said boundary to an angle point in the boundary of Annex- ation No. 57 to the City of Newport Beach as estab- lished by Resolution No. 6203, dated August 9, 1965, of the City of Newport Beach Council and amended by Resolution No. 6247, dated November 8, 1965, said point being the Southwesterly terminus of that certain course described therein as 'North 44° 56' 20" East 114.30 feet "; thence generally Northeasterly and North- westerly along said boundary to the Easterly right of way line of MacArthur Boulevard, 100.00 feet wide as described in the deed recorded in Book 1047, Page 557 of Official Records; thence generally Northerly along said Easterly right of way line being also the boundary of Annexation No, 50 to the City of Newport 3. l '4 Beach as established by City Ordinance No. 999 to the Southeasterly line of said Block 56; thence South- westerly along said Southeasterly line being also said boundary of Annexation No. 50 to the Westerly right of way line of said MacArthur Boulevard; thence • Northerly along said Westerly right of way line being also the boundary of the Jamboree Road Annexation to the City of Newport Beach as established by City Ordinance No. 840 to the center line of Palisades Road, 80.00 feet wide, as described in the deed re- corded in Book 16779 Page 98 of Official Records; thence Westerly and Northwesterly along said center line to the center line of Jamboree Road, 132.00 feet wide, as described in the deed recorded in Book 6135, Page 155 of Official Records, thence generally South- westerly along said center line of Jamboree Road to the center line of State of California Highway Route ORA. 60 -B, 100.00 feet wide, as described in the deed recorded in Book 487, Page 3 of Official Records; thence Easterly along said State Highway center line to the Southwesterly line of said Block 55; thence Southeasterly along said Southwesterly line and the Southwesterly line of said Block 93 to the point of beginning. The CATV system herein franchised shall be used and operated solely and exclusively for the purposes expressly authorized by ordinance of the City of Newport Beach and no other purposes whatsoever. SECTION 3. Nonexclusive Grant. • The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use of said streets, alleys, public ways and places to any person at any time during the term of this franchise. SECTION 4. Term of Franchise. The term of this franchise shall be fifteen (15) years and shall commence at 12:01 P.M. on the effective date of this ordinance, provided that the Grantee has filed written notice of acceptance in accordance with the requirement of Section 10 of this ordinances SECTION 5. Inclusion of Franchise Documents. All of the franchise documents applicable to this fran- chise are hereby incorporated by reference and made a part of this ordinance. By acceptance of this franchise Grantee agrees 4. to be bound by all of the terms, provisions and conditions contained in said franchise documents. SECTION 6. Indemnification of the Cit • Grantee agrees that it shall indemnify and hold harmless the City, its officers, boards, commissions, agents and employees against and from any and all claims, demands, actions, suits, liabilities and judgments of every kind and nature and regardless of the merit of the same, arising out of or related to the exercise or enjoyment of this franchise by Grantee, including claims, demands, actions, suits, liabilities and judgments based upon copyright infringement; Grantee further agrees that it will reimburse City for any costs and expenses incurred by City in defending against any such claim or claims, including attor- neys' fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, travel and living expense; Grantee further agrees that upon demand of the City it will appear in and defend any and all suits, actions, or other legal proceedings • whether judicial, quasi - judicial, administrative, legislative, or otherwise, brought by third persons or duly constituted authori- ties against or affecting the City, its officers, boards, commis- sions, agents or employees and arising out of or pertaining to the exercise or enjoyment of such franchise, or the granting thereof by the City; the foregoing obligations shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other security required hereunder; provided that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, demand, action or suit for monetary damages without first giving the other ten (10) days' prior written notice of its intention to do so. SECTION 7. Right of City to Adopt Additional Rules and Regulations. The right is hereby reserved to the City to adopt, in 5. addition to the provisions contained in this ordinance and in any other applicable ordinances and resolutions, such additional regu- lations as it shall determine to be necessary or convenient in • the exercise of the police power. SECTION 8. Prohibited Activities of Grantee. Grantee shall be prohibited from directly or indirectly doing any of the following: (a) .Engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets, radios or other receiving apparatus, or any part or component thereof. (b) Providing any repair service to its subscribers, for a fee or otherwise, which extends beyond the connection of its service and the determination by Grantee of the quality of its signal to its subscribers. (c) Soliciting, referring, or causing or permitting the solicitation or referral of any subscriber to any specific named persons, firms or corporations engaged in any business which • Grantee is prohibited from engaging in by the provisions hereof. (d) Transmitting or presenting any programs or events for which a separate and distinct charge is made to the subscribers in the manner commonly known and referred to as "pay television ", and the Grantee shall not maintain or operate on any television set a coin box or any other device or means for the collection of money for individual programs. SECTION 9. Transfer of Franchise. This franchise shall not be sold, transferred, assigned, leased or otherwise disposed of in whole or in part by voluntary or involuntary sale, merger, consolidation, or otherwise, without the prior consent of the City Council expressed by resolution, and then upon such terms and conditions as the Council may pre- scribe. No sale, transfer or assignment shall be effective until M. the vendee, assignee or lessee has filed in the office of the City Clerk an instrument, duly executed and approved as to form and content by the City Attorney, reciting the fact of such transfer, • sale, assignment or lease, accepting the terms of the franchise, and agreeing to perform all the conditions thereof, including any additional conditions required by the City Council. SECTION 10. Acceptance of Franchise. This franchise shall not become effective for any pur- pose unless and until written acceptance thereof shall have been filed with the City Clerk; and such written acceptance shall be in form and substance as shall be prescribed by the City Attorney and shall be and operate as an acceptance of each and every term, condition and limitation contained herein, or otherwise specified by ordinance or resolution of the City Council. Said written acceptance shall be filed by the Grantee not later than 12:01 P.M. of the fifteenth (15th) day next following the date of the adoption by the Council of this ordinance; and, in default of • the filing of such written acceptance as herein required, Grantee shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance of any such Grantee shall not be re- ceived by the City Clerk, and such Grantee shall have no rights, remedies, or redress in the premises, unless and until the City Council shall, by resolution, determine that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose. SECTION 11. Acceptance Fee. The Grantee shall, upon the acceptance of this franchise, pay to the City, in consideration of the granting of this fran- chise, the sum of $2,000. SECTION 12. Annual Franchise Fee. • The Grantee shall pay annually to the City during the 7. 0 ►J • life of this franchise for the privilege of operating a CATV system under this franchise a sum equivalent to three per cent (3 %) of the annual gross receipts derived from its operations within the City. SECTION 13. Effective Date. This ordinance shall become effective 30 days from and after the date of its adoption; provided, however, that the fran- chise hereby granted shall not become effective unless and until the Grantee files written acceptance thereof in the manner specified in Section 10 of this ordinance and delivers to the City all bonds and insurance policies required to be furnished in accordance with the requirements of Chapter 5.44 of Title 5 of the Newport Beach Municipal Code, SECTION 14, Publication, This ordinance shall be published once in the official newspaper of the City. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 42.„ day of na+a:""n"V , 1966, and was adopted on the 2=1 day of ii�c�ra3troa- , 196, by the following vote, to wit: AYES, COUNCILMEN: :Caars:.rns. marto"U FoatlG. Swton NOES, COUNCILMEN: _ - ABSENT COUNCILMEN: t nr.lc�j8rezi�et A