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
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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;
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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:
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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
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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
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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