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HomeMy WebLinkAbout91-15 - Amending Chapter 5.44 of the Newport Beach Municipal Code Pertaining to Community Antenna TelevisionNO. 91- 15 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING CHAPTER 5.44 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO COMMUNITY ANTENNA TELEVISION. •The City Council of the City of Newport Beach does hereby ordain as follows: SECTION 1: Chapter 5.44 of the Newport Beach Municipal Code is amended to read: Sections: 5.44.010 Definitions 5.44.020 Franchise to Operate 5.44.030 Application for Franchise 5.44.033 Franchise Renewal 5.44.036 Application Fee 5.44.040 Duration of Franchise 5.44.050 Sale and Transfer 5.44.055 Approval of New Management Company 5.44.060 Limitations of Franchise 5.44.070 Rights Reserved to City 5.44.080 Surety Bonds 5.44.090 Protection of City Against Liability 5.44.100 Inspection of Property and Records 5.44.110 Rules and Regulations 5.44.120 Franchise Payment 5.44.130 Uses Permitted 5.44.140 Location of Grantee's Properties 5.44.150 Removal or Abandonment of Property of Grantee 5.44.160 Failure to Perform Street Work 5.44.170 Operational Standards 5.44.180 Technological Developments 5.44.190 System Compatibility and Connectability 5.44.200 Maintenance of Services 5.44.210 Subscriber Service Office 5.44.220 Subscriber Service Procedures 5.44.230 Revealing Subscriber Lists 5.44.240 Regulation of Rates 5.44.250 Locking Devices to Permit Exercise of Parental Discretion 5.44.300 Public, Educational and Governmental Services 5.44.400 Miscellaneous Provisions 5.44.410 Effect of Annexations 5.44.420 Violations 5.44.430 Penalties 5.44.010 Definitions. For the purpose of this Chapter, the following terms, phrases, words and their derivatives shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. To the extent any conflict 1 exists between these definitions and the definitions as set forth in other ordinances, these definitions will control. (a) The term "City" shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. •(b) The term "Council" shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) The term "Person" shall mean any individual, firm, partnership, association, corporation, company or organization of any kind. (d) The term "Grantee" shall mean the person, firm or corporation to whom or which a franchise under this chapter is granted by the Council, and the lawful successor or assignee of said person, firm or corporation. (e) The term "Community Antenna Television System" or "CATV System" shall mean a system employing antennae, microwave, wires, wave guides, coaxial cables or other conductors, equipment • or facilities designed, constructed or used for any or all of the following purposes: (1) collecting or amplifying local and distant broadcast television, satellite, microwave or radio signals and distributing and transmitting them; (2) transmitting original cable cast programming not received through television broadcast signals; (3) transmitting television pictures 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 or receiving two -way signals or transmissions; (5) providing data transfer capability in any shape or form, including that of a security system or a common carrier should CATV Systems ever be so defined by Federal rule or regulation; 2 (6) transmitting or receiving all other signals whether digital, voice or audio visual. (f) The terms "Subscribers" or "Users" shall mean any person(s) or entity(ies) receiving, for any purpose, any service of the Grantee's community antenna television system, including, but •not limited to, the conventional cable television system service or re- transmission of television broadcast, satellite, microwave or radio signals, Grantee's original cablecasting, local government, education and public access channel cablecasting and other services such as leasing of channels, data and facsimile transmission and police, fire and similar public service communications. (g) The term "Gross Annual Receipts" shall mean any and all compensation and other consideration, in any form whatsoever, and any contributing grant or subsidy received directly or indirectly from the operation of the CATV system within the City of Newport Beach by Grantee from: (1) subscribers or users in payment for any CATV system services including television broadcast, satellite, • microwave, or FM radio signals, reception or service received within the City or transmitted in any shape or form, from the City, for which local subscribers or users make payment, whether said signals, reception or service is included within basic service, expanded basic service, premium service, or pay - per -view service, as well as any installation or line extension charges therefor; (2) advertising fees; (3) any other compensation for utilization of or connection to the cable system of Grantee used within the City including the sale, rental or provision of any equipment, parts or add -ons to be used in connection with the CATV System; (4) notwithstanding the above, Gross Annual Receipts shall not include any taxes on services furnished by the Grantee and imposed directly or indirectly on any subscribers or users by any City, State or other governmental 9 unit or third party and collected by the Grantee on behalf of such entity. (h) The term "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) The term "Primary Franchise Area" shall mean the territory within the City throughout which Grantee shall be authorized to construct, maintain and operate its system and within which Grantee shall have an affirmative obligation to serve all applicants under Section 5.44.400(b) of this Chapter. 5.44.020 Franchise to Operate. A franchise to construct, operate, manage and maintain a community antenna television system within all or any portion of the incorporated area of the City of Newport Beach may be granted by the Council to any person, firm or corporation, whether operating under an existing franchise or not, offering to furnish, and actively manage and operate such system pursuant to the terms and provision of this chapter. Such a • franchise shall not be granted to any holding company or other entity not actively engaged in the operation of a CATV System, and the City reserves the right to grant a similar franchise to any person at any time. No provision of this chapter may be construed as to require 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 or to refrain from granting any franchise at that time. 5.44.030 Application for Franchise. Application for a new franchise hereunder shall be filed with the City Clerk in a form approved by the City and shall contain the following information: (a) The name and address of applicant. (b) A general description of applicants proposed CATV operation, including a tentative map of areas to be served. (c) A statement or schedule in a form approved by the City of proposed rates and charges to subscribers for installation and services, and a copy of proposed service agreement between the 4 Grantee and its subscribers shall accompany the application. (d) A copy of any contract or permit, if existing, between the applicant and any public utility providing for the use of facilities of such public utility, such as poles, lines, or conduits. •(e) A statement of the organization of applicant, including the names and addresses of its officers, directors and associates, and also including the names of subsidiary companies with a listing of other areas being served by CATV or similar systems. If a franchise is granted to a person, firm, group or corporation posing as a front or representative for another person, firm, group, or corporation, and such information is not disclosed in the original application, such franchise may be revoked by the City Council. (f) Applicant shall also furnish a financial statement as to the company's or corporation's financial ability to complete installation and operation of the CATV system. (g) Upon consideration of any such application, the City • Council may grant a franchise for CATV to such applicant as may appear from said application to be in its opinion qualified to render proper and efficient CATV service to television viewers and subscribers in the City. If favorably considered, the application submitted shall constitute and form a part of the franchise as granted. (h) Prior to the granting of a franchise or a franchise renewal pursuant to this Chapter, the Council shall pass a resolution declaring its intention to grant the same, stating the name of the proposed Grantee, the character of the franchise and the terms and conditions upon which it is proposed to be granted. Such resolution shall fix and set forth the day, hour and place when and where any persons having any interest therein or any objection to the granting thereof may appear before the Council and be heard thereon. It shall direct the City Clerk to publish said resolution at least once within fifteen (15) days of the passage thereof in the official newspaper. Said notice shall be published 5 at least ten (10) days prior to the date of hearing. At the time set for the hearing the Council shall proceed to hear and pass upon all protests and its decision thereon shall be final and conclusive. Thereafter it may by ordinance grant the franchise on the terms and conditions specified in the resolution of intention •to grant same, subject to the right of referendum of the people, or it may deny the same. If the Council shall determine that changes should be made in the terms and conditions upon which the franchise is proposed to be granted, a new resolution of intention shall be adopted and like proceedings had thereon. 5.44.033 Franchise Renewal. Any franchise granted under this Chapter is renewable at the application in writing of the Grantee, its lawful successors or assignee for such period of time as the Council and the applicant may agree upon by negotiation. 5.44.036 Application Fee. Each application for a new franchise or a renewal shall be accompanied by an application fee in the sum of one Thousand Dollars ($1,000.00), which shall be used by the City to cover the costs of studying, investigating and • processing such application. 5.44.040 Duration of Franchise. Any franchise, granted by the City Council pursuant to this Chapter, shall be for a term of not less than ten (10) years nor more than twenty -five (25) years following the date of acceptance of such franchise by the Grantee or renewal thereof. Any such franchise may be terminated prior to its date of expiration by the City Council in the event that said Council shall have found, that (a) the Grantee has failed to comply with any material provision of this Chapter, or has, by act or omission, violated any material term or condition of its franchise or permit issued under this Chapter; or (b) any provision of this Chapter has become invalid or unenforceable, and the Council further finds that such provision constitutes a consideration material to the grant of said franchise; or (c) the City acquires the CATV property of Grantee. 5.44.050 sale and Transfer. Any such franchise shall be a privilege to be held in trust by the original Grantee. It cannot 0 in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, merger, consolidation or otherwise, without prior consent of the Council expressed by resolution, and then only under such conditions as may be therein prescribed. The proposed assignee must show financial •responsibility, must demonstrate capability to operate successfully and must agree to comply with all provisions of this Chapter. No such consent shall be required for a transfer in trust, mortgage or other hypothecation as a whole, to secure an indebtedness. 5.44.055 Approval of New Management Company. Grantee shall not enter into any contract for the management of the cable system by a third party without prior consent of the Council by resolution which consent shall not unreasonably be withheld. Grantee shall notify City at least sixty days prior to any change in the managing entity including, but not limited to, changes resulting from an assignment of a management contract, the purchase of or change in control of the managing entity or the termination of or non - renewal of a management contract. The City Council shall approve or • disapprove of such change within sixty (60) days of such notice unless extended by mutual consent of Grantor and Grantee. If the City Council fails to act within the prescribed time, such consent shall be deemed to have been granted. Grantee shall not enter into any contract for the management of the cable system by a third party in which Grantee relinquishes control, authority or responsibility for ultimate compliance with the terms of any franchise granted pursuant to this Chapter or in which Grantee relinquishes control, authority or responsibility for decision - making involving the capital budget, annual business plan, subscriber rate adjustments or replacement or termination of employment of key personnel. Grantee shall not enter into any contract for the management of the cable system by a third party unless such third party is experienced in the operation of cable systems, is financially sound, has technical expertise in cable television operations and is qualified to be a cable operator by generally 7 acceptable and reasonable industry standards. 5.44.060 Limitation of Franchise. A. No privilege or exemption shall be granted or conferred by a franchise granted pursuant to this chapter except those specifically prescribed herein. B. The Grantee is subject to all requirements of the • ordinances, rules, regulations, fees and specification of the City heretofore or hereafter enacted or reestablished, including, but not limited to, those concerning street work, street excavation, use, removal, and relocation of property within a street, and other street work. C. All transmission and distribution structures, lines and equipment of the Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. • D. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Grantee shall, at its own cost and expense and in a manner approved by the Public Works Department of the City, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in as good condition as before said work was commenced and shall maintain the restoration in an approved condition for the duration of the franchise. E. The Grantee shall upon adequate and reasonable notice, at its expense, protect, support, temporarily disconnect, relocate or remove from any public street, alley or other public way, any property of the Grantee when required by the Director of Public Works of the City by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or any other 0 structures or public improvements; provided, however, the Grantee shall in all cases have the privileges and be subject to the obligations to abandon any property of the Grantee in place, as provided in Section 5.44.150 hereof. F. Time shall be of the essence of any such franchise •granted. The Grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this Chapter by failure of the City to enforce prompt compliance. G. 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. H. The Grantee shall have no recourse whatsoever against the City for any loss, cost, expense or damage arising out of any provisions or requirements of this Chapter or its enforcement to the extent permitted by applicable law. I. Any such franchise granted shall not relieve the Grantee of any obligation involved in obtaining pole space from any isdepartment of the City, utility company, or from others maintaining poles 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 by any successor to any interest of Grantee, or pertaining to the construction, operation, or maintenance of any CATV System in the City; and the acceptance 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, any and all construction, operation and maintenance by any Grantee of any CATV 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 under or pursuant to any other right, privilege, power, immunity or authority whatsoever, in lieu of all of which is and shall be 9 granted any franchise hereunder. 5.44.070 Rights Reserved to the City. A. No franchise granted under this Chapter in any way impairs or affects the right of the City to acquire the property of the Grantee by purchase or condemnation. •B. No franchise granted under this Chapter shall ever be given any value before any court or other public authority in any proceeding of any character in excess of the cost to the Grantee of the necessary publication and any other sum paid by it to the City therefor at the time of acquisition. C. There is hereby reserved to the City every right and power which is required to be herein reserved or provided by any ordinance or resolution of the City, and the Grantee, by its acceptance of any 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 established. D. Neither the granting of a franchise hereunder nor isany of the provisions contained herein shall be construed to prevent the City from granting any identical, or similar, franchise to any other person, firm or corporation, either within or without the designated area of the franchise. E. The City Council may do all things which are necessary and convenient in the exercise of its jurisdiction under this Chapter and may determine any question of fact which may arise during the existence of any franchise issued under the provisions of this Chapter. 5.44.080 Surety Bonds. A. Bond For Protection Of City. The Grantee shall, concurrently with the filing of an acceptance of award of the franchise granted under this Chapter, file with the City Clerk and at all times thereafter maintain in full force and effect for the term of such franchise or renewal thereof, at Grantee's sole expense, a corporate surety bond in a company approved by, and in a form to be approved by, the City Manager in the amount of One 0 we] Hundred Thousand Dollars ($100,000), renewable annually, and conditioned upon the faithful performance of Grantee, and upon the further condition that in the event Grantee shall fail to comply with any one or more of the provisions of this Chapter or of the franchise issued to the Grantee hereunder, there shall be • recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Grantee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond, said condition to be a continuing obligation for the duration of such franchise or any renewal thereof, and thereafter until the Grantee has liquidated all of its obligations with the City that may have arisen from the acceptance of said franchise by the Grantee or from its exercise of any privilege therein granted. The bond shall provide that thirty (30) days prior written notice of intention not to renew, cancellation, • or material change, be given to the City. Neither the provisions of this section, nor any bond accepted by the City pursuant thereto, nor any damage recovered by the City thereunder, shall be constructed to excuse faithful performance by the Grantee or limit the liability of the Grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise. B. Bond For Protection Of Subscribers. The Grantee shall, concurrently with the filing of an acceptance of a franchise granted under this chapter, file with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a corporate surety bond or other adequate surety agreement in a form approved by the City Attorney in the amount of Fifty Thousand Dollars ($50,000), conditioned that in the event such Grantee shall fail to comply with any provision of this Chapter, term or condition of its franchise, or any provision of any agreement or undertaking made between Grantee and any lei 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 proceeding; and 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. 5.44.090 Protection of City Against Liability. A. Indemnification. The Grantee 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 any CATV franchise granted pursuant to the provisions of this Chapter, including claims, demands, actions, suits, liabilities and judgments based upon any infringement or violation or alleged violation of any copyright; • and Grantee shall reimburse the City for any costs and expenses incurred by City in defending against any such claim or demand or action, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, travel and living expense; and Grantee shall upon demand of the City appear in and defend any and all suits, actions or other legal proceedings whether judicial, quasi- judicial, administrative or otherwise, brought by third persons or duly constituted authorities against or affecting the City, its officers, boards, commissions, agents or employees and arising out of or related to the exercise or enjoyment of such franchise, or the granting thereof by the City; the foregoing obligation 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 without first giving the other ten (10) days prior 12 written notice of its intentions to do so. B. Comprehensive Liability Insurance. Upon acceptance of such franchise 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 expense, a general •comprehensive liability insurance policy or policies which shall insure Grantee and provide primary coverage for the City, its officers, boards, commissions, agents and employees, against liability for loss or liability for personal injury, death, property damage, and copyright infringement occasioned by any activity or operation of Grantee under such franchise. Such policy or policies shall be issued by a company approved by the City Manager and shall be in form approved by the City Attorney, with minimum combined single limits of liability coverage in the amount of one Million Dollars ($1,000,000). The policy or policies shall name the City, its officers, boards, commissions, agents and employees, an additional insured and shall contain a provision that a written notice of any cancellation, modification or reduction in • coverage of said policy shall be delivered to the City Clerk thirty (30) days in advance of the effective date thereof. No franchise granted under this Chapter shall be effective unless and until each of the foregoing certificates of insurance as required in this subsection has been delivered to the City Clerk. 5.44.100 Inspection of Property and Records. A. At all reasonable times, and for purposes reasonably related to this chapter the Grantee shall permit any duly authorized representative of the City to examine all property of the Grantee, together with any appurtenant property of the Grantee situated within or without the City, and to examine and transcribe, subject to applicable law, any and all maps and other records kept or maintained by the Grantee or under its control which deal with the operations, affairs, 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 City Manager shall determine that an examination 13 thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the Grantee. B. The Grantee shall prepare and furnish to the City Manager and /or the Director of Finance at the times and in the form prescribed by either of said officers, such reports with respect to its operations, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City or any of its officers in connection with the franchise. 5.44.110 Rules and Regulations. A. The City Council is authorized to amend this Chapter to adopt additional rules and regulations governing the operation of CATV systems in the City and such rules and regulations shall apply to and shall govern the operations of the Grantee of any franchise granted pursuant to this Chapter. B. The City Manager of the City of Newport Beach is hereby authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any Grantee under this Chapter, 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 decision of the City Manager may appeal the matter to the Council for hearing and 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 any Grantee or from any provisions of this Chapter. C. Any controversy between Grantor and Grantee involving the construction or application of any of the terms, covenants, or conditions of this Chapter, shall, on written request of one party served on the other, be submitted to arbitration, and such arbitrations shall comply with and be governed by the provisions of the California Arbitration Act, Section 1280 through 1294.2 of the California Code of Civil Procedure. 14 V 5.44.120 Franchise Payments. A. Acceptance Fee. The Grantee of any new or expanded primary franchise area granted pursuant to this Chapter shall pay to the City upon acceptance of such franchise a fee certain in an amount to be determined or approved by the City Council. B. Annual Franchise Fee. The Grantee of any franchise • under this Chapter shall pay quarterly to the City during the life of such franchise a fixed percentage of the gross receipts of the Grantee derived from within the City. Such percentage shall be at least three percent (3 %) and shall be established by the City Council for the life of the franchise by specifying such percentage in the ordinance granting the franchise. Payment shall be due to the City forty -five (45) days after the expiration of each calendar quarter. The Grantee shall file with the City, within ninety (90) days after the expiration of any fiscal year during which such franchise in force, a financial statement prepared by a certified public accountant showing in detail the gross annual receipts, as • defined herein, of Grantee, its successors and assigns, during the preceding fiscal year. In the event that the above payment is not received by the City within the specified time, Grantee shall pay to the City a penalty of one and one -half percent (1.5 %) per month on the unpaid balance in addition thereto. In any year or portion thereof commencing at the conclusion of the first year that service is provided during which payments to Grantee for installation and services amount to less than Fifteen Hundred Dollars ($1,500) per month, Grantee shall pay to the City a minimum amount of Twenty -Five Dollars ($25) per month. isThe right is reserved to the City of audit and recomputation of any and all amounts paid under this Chapter, and no acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further additional sums payable under this Chapter or for the 15 performance of any obligation thereunder. 5.44.130 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 CATV system in the City of Newport Beach and for that purpose to erect, install, construct, operate, repair, replace, reconstruct, maintain • and retain in, on, over, under, upon, across and along any public highway, street, alley, public way or public place, such poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate and provide similar facilities on properties rented or leased from other persons, firms or corporations including, but not limited to, a public utility or other Grantee franchised or permitted to do business in the City of Newport Beach. The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable it to • exercise its rights and perform its obligations under the franchise, and to insure an uninterrupted services to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or of the laws of the City of Newport Beach, the State of California of the United States of America. The Grantee shall have authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee, all trimming to be done under the supervision and direction of the City and at the expense of Grantee. 5.44.140 Location of Grantee's Properties. A. Any poles, wires, cable lines, conduits, or other properties of the Grantee to be constructed or installed in streets, alleys or other public places shall be so constructed or installed only at such locations and in such manner as shall be 11V approved by the Director of Public Works of the City acting in the exercise of his reasonable discretion. B. The Grantee shall not install or erect any poles, facilities or apparatus on public property or rights -of -way within the City, except those installed or erected upon public utility •facilities now existing, without written approval of the Director of Public Works of the City. C. It is the policy of the City to promote undergrounding of utility distribution facilities whenever and wherever feasible. In those areas and portions of the City where both the transmission and distribution facilities of the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the Grantee shall likewise construct, operate, and maintain all of its transmission and distribution facilities underground at no cost to the City of Newport Beach. D. It is the additional policy of the City to limit the number and control the location of above ground CATV apparatus used • in conjunction with underground cables consistent with the technical requirements for providing high quality CATV service. Grantees shall place all newly installed passive electronic apparatus such as taps, directional couplers and similar equipment in underground or flush mounted vaults. Grantees shall place all other apparatus in underground or flush mounted vaults whenever technologically and economically feasible. The Grantee shall coordinate with all affected property owners to locate all newly installed above ground apparatus to minimize inconvenience and disruption to residents. Any disputes or controversy between Grantees and property owners shall be resolved as provided in Section 5.44.110 of this chapter. Grantees also shall implement a program to retrofit or relocate such above ground apparatus upon the request of a property owner or subscriber but in no event shall Grantee be required to expend funds for this program in any one calendar year in excess of three percent (3 %) of the amount paid by Grantee in franchise fees for the previous calendar year. 17 5.44.150 Removal or Abandonment of Property of Grantee. A. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of three (3) months, or in the event such system or property has been installed in any street, alley or public place without complying •with the requirements of its franchise or ordinance, or the franchise has been terminated, canceled or has expired, the Grantee shall promptly, upon being given thirty (30) days notice, remove from the streets, alleys or public places all such property and poles of such system other than any which the Director of Public Works may permit to be abandoned in such place. In the event of any such removal, the Grantee shall promptly restore the street, alley or other area from which such property has been removed, to a condition satisfactory to the Director of Public Works. B. Any property of the Grantee remaining in place ninety (90) days after the termination of the franchise shall be considered permanently abandoned. C. Any property of the Grantee to be abandoned in place • shall be abandoned in such manner as the Director of Public Works shall prescribe. Upon permanent abandonment of the property of the Grantee in place, the property shall become that of the City, and the Grantee shall submit to the City Council an instrument, to be approved by the City Attorney, transferring to the City the ownership of such property. 5.44.160 Failure to Perform Street Work. Upon failure of the Grantee to commence, pursue, or complete any work required by law or by the provisions of this Chapter or by its franchise to be done in any street, alley or other public places within the time prescribed, and to the satisfaction of the Director of Public Works, the City Manager may at his option cause such work to be done and the Grantee shall pay to the City the cost thereof in the itemized amounts reported by the City Manager to the Grantee within ten (10) days after receipt of such itemized report. 5.44.170 operational Standards. The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that subscribers shall receive the highest possible service. 5.44.180 Technological Developments. A. It is the desire of the City that all CATV systems franchised to operate within the City shall maintain, operate and •where feasible, modify the CATV system to ensure its performance in accordance with the highest and best accepted standards of the industry. B. Whenever the Grantee, in consultation with the City, has determined that it is financially and technically feasible and appropriate within the context of local needs and demands, the Grantee shall provide technical improvements and modifications to ensure the operation of the CATV system in accordance with the highest and best accepted standards of the industry. Such improvements and modifications shall include, but not necessarily be limited to: 1. continued availability and enhancement of national or international transmission capabilities via • communications satellites; 2. enhancement and expansion of system channel capacity and programming; 3. improvement of public access and local programming capabilities; 4. maintenance and improvement of system's physical plant in accordance with the highest and best accepted CATV industry practices and FCC regulations; 5. implementation of two -way, interactive capability; 6, provision of security systems; 7, application of technologies such as fiber Is optics or other such advances in the CATV field. C. In making determinations relative to the financial and technical feasibility or appropriateness of specific system improvements or modifications, the following factors shall be considered: L7 1. whether there exists a reasonable subscriber demand for the proposed improvements or modifications; 2. whether the technology associated with the proposed improvements or modifications has been tested and proven reliable; 3. whether the Grantee is financially and • technically able to provide the proposed improvements or modifications; 4. whether the provision of the proposed improvements or modifications will allow the Grantee a reasonable return on its investment in such proposed improvements or modifications. D. In implementing the provisions of this Section, the City may, from time to time, request, and the Grantee shall provide, information relative to the feasibility or appropriateness of implementing specific system improvements or modifications deemed desirable by the City but Grantee shall not be required to incorporate technological developments into the CATV system which • do not meet the provisions of Section 5.44.180(c) above. E. The Grantee shall provide the City with written notification of any major system improvements or modifications proposed for implementation within its respective franchise area. 5.44.190 System Compatibility and Connectability. A. It is the desire of the City that all CATV systems franchised to operate within the City shall be compatible and interconnectable with one another to provide simultaneous cable casts on the Community Channel. B. Within the Primary Franchise Area served, the Grantee shall negotiate the construction, operation and modification of its system to interconnect same with all other systems within the City for the purpose of sharing locally originated public and education programming. 5.44.200 Maintenance of Services. The Grantee shall, for the purposes of maintaining efficient and high quality service to CATV subscribers and excepting circumstances beyond the control of 20 the Grantee, comply with the following general regulations: (a) Grantee shall schedule major planned service interruptions during periods of minimum use of the system and shall notify subscribers of planned service interruptions via announcements transmitted on the Community Channel at least twenty- four (24) hours in advance; but in no event shall the requirement • for notice delay the repair of degraded system operation. (b) Grantee shall maintain a toll free telephone number or numbers within the City, in good working order to provide prompt service to subscribers. Grantee shall provide telephone recorded announcement capability to announce system -wide service disruptions during the times when such disruptions occur. (c) Grantee shall, without charge, provide all subscriber services of its system to all public school buildings, City police and fire stations, City recreation centers and such other buildings owned or controlled by the City as the City Manager shall designate. Except however, that Grantee shall not be required to provide those premium and pay - per -view services to any • building which would not otherwise be eligible to receive such services under the terms of Grantee's contracts with service affiliates. Such service shall consist of a drop connection to the exterior of the building or property involved and a connection to the interior of the building or property to a television set if desired. (d) Grantee shall, upon the written request of the City Manager or designee, test, analyze, and report on the performance of a particular element or elements of the CATV system to resolve problems identified by excessive complaints or other evidence which, in the judgment of the City Manager, warrants a technical investigation to ensure that high quality CATV service is maintained. Grantee shall conduct the requested test or tests and furnish a written report to the City Manager no later than thirty (30) days after the Grantee has been formally requested to perform the subject test or tests. Such a report or reports shall 0.11 contain the following information: the nature of the event or events which precipitated the special test or tests; what system component or components were tested; the equipment used and procedures employed in said testing; the results of such tests; and the method in which any complaints were finally resolved. • 5.44.210 Subscriber Service Office. The Grantee shall at all times during the term of a franchise granted pursuant to this Chapter maintain and operate an office located within the Primary Franchise Area to serve subscribers. Such office shall serve to receive subscriber payments, adjust subscriber billings, schedule maintenance and installation calls, dispense auxiliary equipment such as remote controls and converter boxes, order or delete subscriber services and provide all manner of services provided to subscribers by the Grantee. The location of this office shall be printed on all subscriber statements of payment due. The office shall maintain regular business hours and such extended service hours as necessary to serve the needs of subscribers. 5.44.220 Subscriber Service Procedures. • A. Grantee shall insure that the toll free telephone number or numbers which are provided within the City, pursuant to this Chapter, are capable of the timely receipt of subscriber complaints on a twenty -four (24) hour, seven -day week basis. B. The Grantee shall, within twenty -four (24) hours following the date of receipt of a subscriber complaint, take one of the following actions: 1. Correct the problem; 2. Determine the problem cannot be corrected within twenty -four (24) hours and schedule a service call to take place within forty -eight (48) hours or on a mutually acceptable date; 3. Determine the problem is not cable - related and so inform the subscriber. C. Grantee shall maintain a written record listing the date and time of subscriber complaints, identifying the subscriber by name and residence address, and describing the nature of the 22 complaint as well as the nature and date of its resolution. The subject record is to be maintained at the Grantee's local office for a period of one (1) year from the date of the complaint and is to be available for inspection during regular business hours by the City Manager or his designee subject to applicable law. D. The following remedies and penalties for inadequate • or untimely service to subscribers of system installation delays are hereby established: 1. In the event that its service to any subscriber is interrupted for more than twenty -four (24) consecutive hours except for acts of God or other circumstances beyond Grantee's control and outside the system and except in circumstances for which prior approval of the interruption is obtained from the City Manager, Grantee shall provide a ten percent (10 %) rebate of the monthly fees to affected subscribers unless waived by subscriber. 2. In the event that its service to any subscriber is interrupted for more than forty -eight (48) or more • consecutive hours, except for acts of God or other circumstances beyond Grantee's control and outside the system, and except in circumstances for which the prior approval of the interruption is obtained from the City Manager, Grantee shall provide a twenty percent (20 %) rebate of the monthly fees to affected subscribers unless waived by subscriber. 3. In the event that the system fails to meet any operational standards as defined in Section 5.44.170 for a full three (3) month period, Grantee shall reduce all subscribers' fees by twenty -five percent (25 %) until all performance standards are met, provided that the City Manager has noticed the Grantee in writing of its alleged non- compliance and the Grantee has failed within ninety (90) days to cure such non - compliance. E. If not satisfied with the Grantee's response to a service problem, a subscriber may file a written complaint with the City. The City Manager or designee shall resolve the problem 23 pursuant to Section 5.44.010. F. If a subscriber files a complaint with the City regarding a service problem which is continual and persistent and which is determined to be preventable and within Grantee's control, and if the Grantee fails to correct the problem within a reasonable •period of time, following written notice of the complaint by the City, the City may levy a penalty as provided for in Section 5.44.430 of this Chapter. 5.44.230 Revealing Subscriber Lists. The Grantee shall not reveal, or sell, or permit the release or sale of its subscriber list without the prior written consent of the subscriber; provided that Grantee may use its subscriber list as necessary for the construction, marketing, and maintenance of the Grantee's services and facilities authorized by a franchise, and the concomitant billing of subscribers for said services; and further, provided that consistent with applicable law, Grantor may use Grantee's subscribers list for the purpose of communication with subscribers in connection with matters relating to enforcement of this Chapter. • 5.44.240 Regulation of Rates. The City Council shall review and approve all rates and charges for CATV services to the extent permitted by applicable state or federal statutes or regulations in effect or enacted at any time during the term of a franchise granted pursuant to this chapter. The Grantee shall provide the City with thirty (30) days prior written notification of any new rates or charges within its franchise area. 5.44.250 Locking Devices to Permit Exercise of Parental Discretion. Grantee shall make available to its subscribers, upon request and for a reasonable charge, locking devices to permit parental control over programming. is 5.44.300 Public, Educational and Governmental Services. It is the desire of the City to promote local origination programming and to utilize cable services to enhance the delivery of municipal services. (a) Every CATV systems franchised to operate within the 24 City shall maintain and operate a community program channel for the cable casting or re -cable casting of community interest programming only. (b) The channel shall be titled the "Newport Beach Community Channel" and shall be cable cast on the same channel number in all CATV systems franchised within the City. The channel is number shall be designated by mutual agreement between all franchises or in the absence of such agreement by the City Manager. (c) Programming on the Community Channel shall include live broadcasts of all regular meetings of the Newport Beach City Council, at least one (1) re- broadcast of the regular meetings of the City Council, and such other local government and community affairs programs as may reasonably be designated by the City Manager not to exceed 20 hours per month. (d) Advertising announcements broadcast on the Community Channel shall promote primarily those persons and businesses maintaining an office or location within the jurisdictional boundaries of the City. Grantee may collect a fee for • advertisements broadcast on the Community Channel. (e) At all times, in the absence of local origination programming on the Community Channel, Grantee shall cause to be broadcast by means of a character generator or other device, public announcements or local information as may be submitted or made available to Grantee or as may be designated from time to time by the City Manager. (f) All Grantees of a CATV franchise within the City, upon request of the City Manager, shall make available video equipment and production studio facilities for use by non - profit public, educational or governmental groups for the purpose of producing access programming. (g) A television monitor and video cassette recorder shall be installed and maintained in the City Council Chambers of the City of Newport Beach by the CATV systems franchised to operate within the City. The specifications for such equipment shall be prescribed by the City Manager. The cost shall be shared by the 25 Grantees in proportion to their number of subscribers within the City. (h) Every CATV system franchised to operate within the City shall provide an emergency audio override on all channels accessible from the City's Emergency Operations Center for the purpose of disseminating instructions to residents during a • declared emergency. (i) Within one (1) year from the passage of this section, each CATV system franchised to operate within the City shall provide to every City fire station located within its primary franchise area, cable service to enable live reception of training and other programming originated or rebroadcast from the Central Net facility located in the City of Huntington Beach. Costs of providing such service shall be shared by the grantees in proportion to their number of subscribers within the City or in some other proportion mutually agreed to by grantees. The City Manager may grant extensions to the time limit imposed by this section upon submittal by grantees of acceptable evidence of • extenuating circumstances and a good faith effort to comply with this section. 5.44.400 Miscellaneous Provisions. A. All matters herein provided to be filed with the City shall be filed with the City Clerk. B. No person, firm or corporation in the Primary Franchise Area of Grantee shall be arbitrarily refused service; provided, however, that Grantee shall not be required to provide service to any subscriber who does not pay the applicable construction, installation and monthly service charge. C. The City Council may, upon finding that extraordinary circumstances applying to the land, buildings or CATV system do exist, waive any or all of the requirements of this Chapter. 5.44.410 Effect of Annexations. A. In the event any new territory shall become annexed to the City, the City Council shall determine which Grantee or 26 Grantees shall serve such new territory. B. In the event any portion of unincorporated territory covered by an existing franchise granted by the County of Orange is annexed to the City prior to the time that the Grantee of such County franchise has commenced installation of a CATV system within said territory, all rights acquired by said Grantee under its • County franchise shall terminate by operation of law as of the date on which the annexation to the City becomes effective. C. In the event any portion of unincorporated territory covered by an existing franchise granted by the County of Orange is annexed to the City after the Grantee thereof has commenced or completed construction and installation of a CATV system within said territory, the rights reserved under said franchise to the County of Orange or to any officer thereof shall inure to the benefit of the City of Newport Beach, and all regulatory provisions of this Ordinance and any other rules and regulations applicable to CATV systems operating within the City, whether then in effect or subsequently adopted, shall be applicable to and binding upon said • Grantee. In addition, the Grantee shall be obligated to pay an annual franchise fee to the City based on the gross receipts derived from its operations within the annexed territory. 5.44.420 Violations. A. It shall be unlawful for any person, firm or corporation to make any unauthorized connection in physical contact with any part of a franchised CATV system within the City for the purpose of taking or receiving or enabling himself or others to receive any television signals, radio signals, pictures, programs or sound. B. It shall be unlawful for any person, without the consent of the Grantee, to willfully tamper with, remove, or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. C. From and after the effective date of this Chapter, it shall be unlawful for any person to construct, install or maintain within any public street in the City or within any other 27 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 CATV system unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this Chapter and unless such franchise is in full force and effect. 5.44.430 Penalties. The Grantee shall pay a penalty of up to Ten Thousand Dollars ($10,000.00) for failure to comply with any section of this Chapter, provided that the City has notified the Grantee in writing of the alleged non - compliance and the Grantee fails to cure same within thirty (30) days or in the case of non- compliance, which because of its nature cannot be cured within thirty (30) days, fails to commence within such period and thereafter diligently pursue a cure. Any such penalty shall be payable from the bond required by Section 5.44.080, The City • Manager shall determine the extent of the penalty and shall immediately notify the Grantee of the penalty determination. The Grantee may formally object to the penalty by filing a written notice of objection with the City within thirty (30) days following notification by the City of the fine to be levied. If the Grantee so objects, a public hearing before an appointed hearing officer shall be held within thirty (30) days of the filing of the Grantee's written notice. Grantee shall be provided an opportunity to be heard at such hearing, including the right to present evidence, cross -exam witnesses and be represented by counsel. All penalties are due and owing thirty (30) days after a final decision by the hearing officer, whose decision shall be final. isSuch assessment shall not constitute a waiver by the Grantor of any other right or remedy it may have under the Franchise Agreement or under applicable law including, without limitation, its right to recover from Grantee such additional damages, losses, costs and expenses, including reasonable 28 attorneys' fees, as may have been suffered or incurred by Grantor by reason of or arising out of any failure to comply with the provisions of this Chapter. SECTION 2: That if any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 3: Ordinance 1153 and all subsequent ordinances amending Chapter 5.44 are hereby repealed. SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its • adoption. SECTION 5: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 11th day of March , 19 91, and adopted on the 25th day of March , 19 91, by the following vote, to wit: ATTE T_�: -/ CITY CLERK AYES, COUNCILMEMBERS HEDGES, WATT, TURNER, SANSONE, HART, COX, PLUMMER NOES, COUNCILMEMBERS NONE ABSENT COUNCILMEMBERS NONE MAYOR