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HomeMy WebLinkAboutTime Warner New York Cable LLCSETTLEMENT AGREEMENT AND RELEASE 1. PARTIES This Settlement. Agreement and Release ( "SETTLEMENT AGREEMENT ") dated October k3, 2008 is entered into between and among TIME WARNER NY CABLE LLC ( "TWC ") and the CITY OF NEWPORT BEACH ( "CITY "). TWC and CITY may be collectively referred herein to as the "PARTIES." 2. RECITALS 2.1 TWC operates, among other things, arcable television system in the CITY. TWC is to pay the CITY a franchise fee of five percent of its gross annual receipts ( "FEES ") from its operation of such cable television system. 2.2 In an audit report dated April 29, 2008, the CITY'S auditor, Communications Support Group, Inc., determined that TWC had failed to pay the CITY approximately $45,354 of FEES during the period August 1, 2006 through December 31, 2007 (the "AUDIT "). 2.3 The CITY was billed $15,930.38 for the :costs of the AUDIT ( "COSTS "). 2.4 TWC disputes the amounts claimed in the AUDIT and the COSTS. 2.5 At this time, the PARTIES desire to resolve the disputes raised in connection with the AUDIT and COSTS and enter into this SETTLEMENT AGREEMENT to finally, fully and comprehensively settle such disputes and all claims for fees, damages, interest, extra costs, compensation or penalties of any nature whatsoever that are in any way related to TWC's obligations to pay FEES or COSTS to CITY for the period August 1, 2006 through December 31, 2007. 3. CONSIDERATION 3.1 In exchange for the waivers and releases set forth herein, TWC shall pay the CITY a settlement payment in the amount of $30,642,19 in the form of a check made payable to the "City of Newport Beach" and mailed to the CITY c/o William M. Marticorena, Rutan &° Tucker LLP, 611 Anton Boulevard, Fourteenth Floor, Costa Mesa, California 92628 -1950 within twenty (20) business days of the EFFECTIVE DATE as defined herein. This Agreement shall be effective as of the date the last party signs the SETTLEMENT AGREEMENT ( "EFFECTIVE DATE "). 3.2 In exchange for the settlement payment provided for herein and for the mutual releases and waivers made herein, the PARTIES, on each of their own behalf and on behalf Of their respective representatives; successors, and assigns (collectively, the "RELEASING PARTIES "), hereby release, acquit, and forever discharge each other and the RELEASING PARTIES' respective predecessors, successors, assigns, affiliated companies, related companies, subsidiaries, parents, agents, officers, employees; representatives, members, directors, owners, insurers, attorneys, and all persons and CA6ocuments and SettingsT008530\Local I of 6 Settingffemporary Intemet Files \OLKASettlment Agmt. 100108.DOC entities acting by, through, under, or in concert with any of them, and each of them, from any and all claims; charges, complaints, contracts, understandings, liabilities; obligations, promises, benefits, agreements, controversies, costs, losses, debts, expenses, damages, actions, causes of action, suits, rights, and demands of any nature whatsoever; known or unknown, suspected or unsuspected, which the RELEASING PARTIES now have relating to or arising, out of any act, omission, occurrence, condition, event; transaction,_ or thing which was done, omitted to be done, occurred or was in effect arising from the FEES for the period August. 1, 2006 through December 31, 2007, including any claim for damages, interest, extra costs, compensation or penalties related to such FEES, the AUDIT, COSTS or any matters related to or arising out of the AUDIT (hereinafter "CLAIMS "), without regard to whether these CLAIMS arise under the federal, state or local constitutions, statutes, rules or regulations or the common law. The RELEASING PARTIES expressly acknowledge that the CLAIMS forever barred by this SETTLEMENT AGREEMENT specifically include, but are not limited to, claims based upon failure to pay FEES for the period August 1, 2006 through December 31, 2007, the AUDIT or COSTS. 4. UNKNOWN CLAIMS Each of the PARTIES to this SETTLEMENT AGREEMENT acknowledges and agrees that the releases contained in this SETTLEMENT AGREEMENT are special 'releases and that section 1542 of the Civil Code is not applicable. If and to the extent it should be determined that the releases contained in this SETTLEMENT AGREEMENT are not special releases, contrary to the patties' acknowledged intention, each party specifically waives the benefit of the provisions of section 1542 of the Civil Code of the State of California, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 5. REPRESENTATIONS AND WARRANTIES Each of the PARTIES to this SETTLEMENT AGREEMENT represents and warrants to, and agrees with, each other party as follows: 5.1 Advice of Counsel: Each of the PARTIES has received independent legal advice from its attorney(s) with respect tothe advisability of making -the settlement provided for herein and with respect to the advisability of executing this SETTLEMENT AGREEMENT or by their own choosing elected not to do so. The PARTIES acknowledge that they have read this SETTLEMENT AGREEMENT; that they have had this SETTLEMENT AGREEMENT fully explained to them by their counsel or have had CADocumenLc and SettingsT,008530 \Local 2 of 6 SeningsUemporaiy Internet Fi1es \0LK4 \Settlmeni Agmt 100108.DOC such opportunity to do so; and that they are fully aware of the contents of this SETTLEMENT AGREEMENT and of its legal effect. 5.2 No Fraud in Inducement: None of the PARTIES (nor any officer, agent, employee, representative or attorney of or for any party) has made any statement or representation or failed to make any statement or representation to any other party regarding any fact relied upon in entering into this SETTLEMENT AGREEMENT, and neither party relies upon any statement, representation, omission or promise of any other, party in executing this SETTLEMENT AGREEMENT; or in making the payments and /or releases provided for herein, except as expressly stated in this SETTLEMENT AGREEMENT. 5.3 Independent Investigation: Each of the PARTIES to this SETTLEMENT AGREEMENT has made such investigation of the facts pertaining to this SETTLEMENT AGREEMENT and all the matters pertaining thereto as it deems necessary. 5.4 Authority; Each party represents to the other that it has the right to enter into this SETTLEMENT AGREEMENT, and that it is not violating the terns or conditions of any other agreement to which it is a party or by which it is bound by entering into this SETTLEMENT AGREEMENT. The PARTIES represent that they will obtain all necessary approvals to execute this SETTLEMENT AGREEMENT. It is further represented and agreed that the individuals signing this SETTLEMENT AGREEMENT on behalf of the respective PARTIES have actual authority to execute this SETTLEMENT AGREEMENT and, by doing so, bind the party on whose behalf this SETTLEMENT AGREEMENT has been signed. 5.5 Mistake Waived: In entering into this SETTLEMENT AGREEMENT, each of the PARTIES assumes the risk of any misrepresentation, concealment or mistake. If any party should subsequently discover that any fact relied upon by it in entering into this SETTLEMENT AGREEMENT was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including without limitation on the generality of the foregoing any alleged right or claim to set aside or rescind this SETTLEMENT AGREEMENT. This SETTLEMENT AGREEMENT is intended to be, and is, final and binding between the PARTIES, regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law or any other circumstance whatsoever. 5.6 Later Discovery: The PARTIES are aware that they may hereafter discover claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the PARTIES that all PARTIES fully, finally and forever settle and release all such matters, and all claims relative thereto, which do now exist, may exist or have previously existed against each of the PARTIES hereto. In furtherance of such intention, the releases given here shall be, and remain; in effect as full and complete releases of all such C:0pcuments and Settings \E008530 .ocal 3 of 6 Settingsuemporary Internet Files \OLK4 \Settlment Agmt 1 "00108.DOC matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 5.7 Ownership of Claims: Each of the PARTIES represents and warrants as a material term of this SETTLEMENT AGREEMENT that it has not heretofore assigned, transferred, released or granted, or purported to assign, transfer, release or grant, any of the claims disposed of by this SETTLEMENT AGREEMENT, In executing this SETTLEMENT AGREEMENT, each of the PARTIES further warrants and represents that none of the claims released by it hereunder will in the future be assigned, conveyed or transferred in any fashion to any other person and/or entity. 5.8 Indemnification: Each of the PARTIES agrees to indemnify, defend and hold harmless the other party and /or their respective employees and agents, from and against any and all claims, damages or liabilities sustained by them as a direct result of the violation or breach of the covenants, warranties and representations undertaken pursuant to the provisions of this SETTLEMENT AGREEMENT. 5.9 Future Cooperation: Each of the PARTIES will execute all such further and additional documents as shall be reasonable, convenient, necessary or desirable to carry out the provisions of this SETTLEMENT AGREEMENT. 6. MISCFLLANEOUS PROVISIONS 6,1 No Admission: Nothing contained herein shall be construed as an admission by any of the PARTIES of any liability of any kind. Each of the PARTIES denies any liability in connection with any claim and intends hereby solely to avoid litigation. 6.2 Governing Law: This SETTLEMENT AGREEMENT has been executed and delivered within the State of California, and the rights and obligations of the PARTIES shall be construed and enforced in accordance with, and governed by, the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this SETTLEMENT AGREEMENT shall be instituted in the Superior Court of the County of Los Angeles State of California, or any other appropriate court in such county. 6.3 Attorneys Fees' and Costs: Except as provided herein, all attorneys' fees and costs incurred through the EFFECTIVE DATE of this SETTLEMENT AGREEMENT shall be borne by the respective PARTIES, and each party agrees to waive any claim, or claims, against any of the other party for the reimbursement of all, or any portion of, said fees or costs. However, should any legal action be required to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which the party may be entitled. 6.4 Full Integration: This SETTLEMENT AGREEMENT is the entire agreement between the PARTIES with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and discussions. CADocuments and SettingsTO08530\Local 4 Of 6. Settings \Temporary Internet Fi1es \OLK4 \Sett1rn=t Agmt 1:00108.DOC This SETTLEMENT AGREEMENT may be amended only by a further agreement in writing, signed by the PARTIES hereto. 6.5. Continuing Benefit: This SETTLEMENT AGREEMENT is binding upon and shall inure to the benefit of each of the PARTIES. 6.6 Joint Drafting: Each party agrees that it has cooperated in the drafting and preparation of this SETTLEMENT AGREEMENT. Hence, in any construction to be made of this SETTLEMENT AGREEMENT, the PARTIES' agree that same shall not be construed against any party. 6.7 Severability: In the event that any term, covenant; condition, provision or agreement contained in this SETTLEMENT AGREEMENT is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such term, covenant, condition, provision or agreement shall in no way affect any other term, covenant, condition, provision or agreement, and the remainder of this SETTLEMENT AGREEMENT shall still be in full force and effect. 6.8 Titles: The titles included in this SETTLEMENT AGREEMENT are for reference only and are not part of its terms, nor do they in any way modify the terms of this SETTLEMENT AGREEMENT. 6.9 Counterparts: This SETTLEMENT AGREEMENT may be executed in counterparts and by facsimile, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original and, when taken together with other signed counterparts, shall constitute one SETTLEMENT AGREEMENT, 'which shall be binding upon and effective as to all PARTIES. 6.10 Notice: Any and all notices given to any party under this SETTLEMENT AGREEMENT shall be given as provided in this paragraph. All notices given to either party shall be made by certified or registered United States mail, or personal delivery, at the noticing party's discretion, and addressed to the PARTIES as set forth below. Notices shall be deemed, for all purposes, to have been given on the date of personal service or three (3) consecutive calendar days following deposit of the same in the United States mail. As to TWC: Time Warner Cable 3430 E. Mira Loma Avenue Anaheim, California 92806 Attn: Division President With a copy to: Time Warner Cable 1500 Auto Center Drive Ontario, California 91761 Attn: Vice President — Community and Government Affairs CADocuments and Settings \E008530\Local 5 of 6 Settings \Temporary Internet Files \0LK4\Setdment Agnit 100 I 08.DOC As to CITY: City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Attn: City Manager With a copy to: Rutan & Tucker LLP 611 Anton Boulevard Fourteenth Floor Costa Mesa, California 92628 -1950 Attn: William M. Marticorena, Esq. WHEREFORE, the Parties hereto have read all of the foregoing, understand the same and agree to all of the provisions contained herein. DATED: M \( I 0 Y DATED: ATTEST: By: City Clerk TIME WARNER NY CABLE LLC By: ire 5 Its: CITY OF NEWPORT BEACH Its: [END OF SIGNATURES] C'Doci➢nents and Settings \P.008530U,ocal, 6 of 6 settings\Temporary Internet Files \0LK4\SettIn ent'Agrat 100108.DOC AGREEMENT RELATING TO THE CONSENT OF THE CITY OF NEWPORT BEACH TO THE TRANSFER OF THE FRANCHISE AGREEMENT HELD BY ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC TO TIME WARNER NY CABLE LLC This Agreement (the "Transfer Agreement ") is entered into this 27th day of June; 2006; between and among the City of Newport Beach ( "City "), Adelphia Cablevision of Newport Beach, LLC ( "Adelphia- Newport"), Adelphia Communications Corporation ( "Adelphia "), Time Warner NY Cable LLC ( "TWNY" or "Franchisee ") and Time Warner Cable Inc. ( "Time Warner Cable "). WHEREAS, the City enacted Chapter 5.44 (the "Ordinance ") for the purpose of establishing a procedure for the granting of franchises for cable television systems; and WHEREAS, Warner Bros. TV Services, Inc. was granted a franchise dated January 27, 1967 by the City pursuant to Ordinance No. 1197, as amended by Ordinance Nos. 1365, 86 -17 and 91 -43, to construct, improve, operate and maintain a cable television system within the City (the "System ") as more particularly defined therein (the "Franchise Agreement "); and WHEREAS, the Franchise Agreement was transferred from Warner Bros. TV Services, Inc. to Pacific Cable Services, Inc. pursuant to an Agreement dated April 22, 1968 and approved by Resolution No. 6759; and WHEREAS', the Franchise Agreement was transferred from Pacific Cable Services, Inc. to Newport Beach Cablevision,, Inc. pursuant to an Agreement dated March 10, 1969 and approved by Resolution No. 6945; and WHEREAS, the Franchise Agreement was transferred from Newport Beach Cablevision, Inc. to Teleprompter Corp. pursuant to an Agreement dated March 8. 1971 and approved by Resolution No. 7379; and WHEREAS, the Franchise Agreement was transferred pursuant to the merger of Teleprompter Corp. with a subsidiary of Westinghouse Electric Corp. pursuant to an Agreement approved by Resolution No. 10019; and WHEREAS, the Franchise Agreement was transferred pursuant to the reorganization of Teleprompter Corp. into Group W Cable, Inc. pursuant to an Agreement dated April 12, 1982 and approved by Resolution No. 82 -51; and WHEREAS, the Franchise Agreement was transferred pursuant to the reorganization of Group W Cable, Inc. into Comcast Cable Communications, Inc.. pursuant to an Agreement dated March 24, 1986 and approved by Resolution No. 86 -22; and WHEREAS, the Franchise Agreement was transferred pursuant to the sale of Group W to Comcast Corp. with Comcast Cablevision of California as operator pursuant to an Agreement dated April 14, 1986 and approved by Resolution No. 86 -25, and 1 L \17004MSignaNre W menUVewpop Beach \Newport Beach Tra fer Agmement Final Ofi 1206DOC • i WHEREAS, the Franchise Agreement was assigned from Comcast Cablevision of California to Comcast Cablevision of Newport Beach, Inc., pursuant to an Agreement dated November 12, 1991 and approved by Ordinance No.91 -43; and WHEREAS, the Franchise Agreement was transferred from Comcast Cablevision of Newport Beach, Inc. to Adelphia- Newport, an indirect subsidiary of Adelphia, pursuant to an agreement dated October 31, 2000, whereby Comcast Cablevision of Newport Beach, Inc. was converted to a limited liability corporation ( "LLC") and its LLC interests were acquired by Ft. Myers Acquisition Limited Partnership, a wholly owned indirect subsidiary. of Adelphia;, and WHEREAS, pursuant to an Asset Purchase Agreement dated April 20, 2005 between Adelphia and TWNY, the System and the Franchise Agreement are to be transferred to TWNY, an indirect subsidiary of Time Warner Cable (the "Proposed Transaction"); and WHEREAS, on June 14, 2005, TWNY and Adelphia- Newport filed FCC Form 394 (the "Application ") describing the Proposed Transaction; and WHEREAS, the City Council of the City has reviewed the Proposed Transaction, as well as all relevant documents, staff reports and recommendations, the operation of the System and compliance with the Franchise Agreement and applicable law; and WHEREAS, the Proposed Transaction with respect to the System cannot go forth without written consent of the City; and WHEREAS, the City has identified certain compliance issues and Adelphia- Newport has indicated its willingness to resolve these issues and therefore, Adelphia- Newport and the City have entered into a separate Settlement and Mutual Release Agreement dated as of June 27, 2006 (the "Settlement Agreement "), and WHEREAS, based upon the evidence presented to the City Council, it has determined that it would be in the public interest to approve the Proposed Transaction. NOW, THEREFORE, it is agreed by and between the parties as follows: 1. The City Council of the City hereby gives its consent and approval to the Proposed Transaction whereby the Franchise Agreement and the System, including all of the assets thereof, shall be acquired and held by the Franchisee with the performance of all obligations pursuant to the Franchise Agreement, the Ordinance and this Transfer Agreement guaranteed by Time Warner Cable upon closing of the Proposed Transaction. 2. The granting of the consent to the Proposed Transaction, or the consents described in Paragraph 1 above, do not surrender or waive the right of the City to approve any subsequent change not described herein in the ownership of the Franchise Agreement or the ownership or control of the Franchisee, and the Franchisee agrees to comply with all requirements in the Franchise Agreement governing any franchise transfers and any material change, amendment, or modification of the ownership of the Franchisee and/or change in control of the Franchisee. 3. By executing this Transfer Agreement, the City and the Franchisee agree and acknowledge that this Transfer Agreement and consent resolution is not a new franchise 2 L\710"Mignaiure: Wo mems\Nmpon 9cachWmv n Beach Transfu Agreement Final W206DOC • agreement, the granting of a franchise, or the renewal of the existing franchise, but rather is exclusively an agreement to transfer the Franchise Agreement and this Transfer Agreement neither affects nor prejudices in any way the City's rights nor the Franchisee's rights thereunder, and that compliance with the Franchise Agreement as it exists as of the date of this Transfer Agreement, and assuming the economic impact, or lack thereof, of federal, state and local statutes and administrative regulations existing as of the date of this Transfer Agreement, is neither commercially impracticable as the term is used in Section 625 of the Cable Communications Policy Act of 1984 and/or the Cable Television Consumer Protection and Competition Act of 1992 (collectively the "Cable Act ") nor economically infeasible upon closing of the Proposed Transaction based upon (i) any and all debt service incurred, or to be incurred, by the Franchisee, or any related entity, to directly or indirectly finance the Proposed Transaction or (ii) any return on equity investment made, or to be made, by the Franchisee or any related entity, based upon the equity portion of the financing provided for the Proposed Transaction. 4. The Franchisee agrees. and. acknowledges that from and after the closing of the Proposed Transaction, it accepts the Franchise Agreement, the Ordinance and this Transfer Agreement, including the Memorandum of Understanding being entered into pursuant to this Transfer Agreement (collectively, the "Legal Documents"), to be legally sufficient, valid, and binding and agrees to accept and abide by the same without condition or reservation. To the extent that the City or the Franchisee, or any related person or entity, challenges the validity or interpretation, or seeks the enforcement, of said above-listed Legal Documents in the future in any administrative proceeding or court of law, such a challenge or enforcement action shall be subject to all defenses which would have been available to the City or the Franchisee had Adelphia- Newport or Adelphia or any related person or entity, brought said challenge(s) including, but not limited to, waiver, estoppel, consent; unclean hands and accord and satisfaction, as well as any and all defenses independently available to the City or the Franchisee. 5. Any material violation of this Transfer Agreement shall be deemed to be a violation of the Franchise Agreement. 6. The City hereby gives notice that the Proposed Transaction may create a taxable possessory interest upon which Franchisee may be liable for the payment of certain taxes. The Franchisee acknowledges that this section constitutes valid notice for the purpose of Revenue and Taxation Code Section 107.6. 7. By executing this Transfer Agreement, the Franchisee hereby accepts, from and after the closing of the Proposed Transaction, all the terms and conditions of the City's Charter, the Legal Documents, and any final non - appealable lawful orders or directives of any administrative agency relating to the Franchise Agreement or the System including, but not limited to, the Federal Communications Commission, and the Franchisee represents and warrants that it has examined the requirements of the Charter and the Legal Documents, as well as the applicable federal; state, or local laws or regulations, and agrees to abide by all the terms and conditions thereof. The Franchisee shall, among other things, assume all rate refund obligations and franchise fee liability, both actual and contingent relating to the System. 8. Franchisee represents and warrants that the current level of local operations as required by the Legal Documents in the areas of customer service, maintenance, and PEG support shall be maintained or exceeded. 3 191710 \048\Signau m MzumenuWewpon Bea<hW ewponBeach Transfer Agreement Final W2".1)OC i i 9. This Transfer Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. The parties' agree that this Transfer Agreement will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile signature shall be treated in all respects as having the same effect as an original signature. 10. As an express condition of the effectiveness of the approvals contained herein, Time Warner Cable shall guarantee the financial and operational performance of the Franchisee pursuant to the Legal Documents pursuant to the written guaranty attached as Exhibit A (the "Time Warner Guaranty"). 11, Subject to paragraph 16 hereinbelow, this Transfer Agreement shall be deemed effective upon execution by all parties (the "Effective Date ") so long as this Transfer Agreement and the Time Warner Guaranty have been executed and returned to the City, and all payments required by this Transfer Agreement have been made pursuant to paragraph 15 hereinbelow. If these conditions have not been satisfied as set forth herein, the approving resolution shall become null and void,.ab initio, and the shall be Proposed Transaction deemed disapproved for good cause as of January 17, 2006. 12. Franchisee represents that any letter of credit, insurance and bonding required by the Franchise Agreement and Ordinance have been obtained, and that there will be no gaps in required coverages or liabilities'. Franchisee will continue to maintain any letter of credit and bonds that it was required to maintain under the Franchise Agreement notwithstanding the Proposed Transaction. 13. Franchisee agrees to defend, indemnify and hold the City harmless against any loss, claim; damage, liability or expense (including, without limitation, reasonable attorney's fees) arising out of this Transfer Agreement and/or incurred as a result of any representation or warranty made by any party in the Application or in connection with the City's review of the Proposed Transaction which proves to be untrue or inaccurate in any material respect. In the event the City receives any such notice of a loss, claim, damage; liability or expense, the City shall promptly notify the Franchisee which shall; at the sole discretion of the City, assume sole and direct responsibility for defending against any such loss, claim, damage, liability or expense. 14. Any consent given by the City in this Transfer Agreement and in any resolution approving the Proposed Transaction is not an affirmation that Adelphia- Newport or any predecessor in interest is in compliance with, or previously complied with the Franchise Agreement, Nothing herein shall limit or prevent the City from utilizing any material breaches or defaults committed prior to the Effective Date if discovered after the Effective Date in any renewal proceeding or other proceeding relating to the Franchise Agreement if such material breaches or defaults are not cured by Franchisee within a reasonable time after receipt of notice thereof from the City. Any consent is made without prejudice to, or waiver of the City's right to obtain full remedy for any past non - compliance. Any consent given by the City in this Transfer Agreement and any resolution approving this Transfer Agreement is not a finding that after the Proposed Transaction the Franchisee will be financially, technically or legally qualified, and no inference will be drawn, positively or negatively, as aresult of the absence of a finding on this issue. Any consent is therefore made without prejudice to, or waiver of, the City's right to fully investigate and consider the cable operator's financial, technical and legal qualifications and any other relevant considerations during any proceeding including by way of example and not 4 1: \1710 \04MSignatwe Do.aa,,We nRehWe rt Bach Trana&r Agmanmt Final 061206.DOC • limitation, any future transfer or renewal proceeding. Without limiting the foregoing, any approval of the Proposed Transaction is not a finding, representation, or commitment, expressed or implied, that any statutory renewal rights exist in relation to the Franchise Agreement; that the renewal application filed by any prior franchisee survives the Proposed Transaction; that the Franchise Agreement will be renewed or extended (and approval shall not create an obligation to renew or extend the Franchise Agreement); that the Franchisee is "financially, technically or legally" qualified to hold a renewed franchise; or that any other renewal issue that may arise with respect to Franchisee's past performance or future cable- related needs and interests will be resolved in a manner favorable to the Franchisee. The provisions of this paragraph shall not be modified or limited by the provisions of the Settlement Agreement. 15. Within ten (10) business days of the latest to occur of: (i) final approval of the Proposed Transaction by the City Council; (ii) approval of the Settlement Agreement by the Bankruptcy Court presiding over Adelphia's pending bankruptcy cases; or (iii) Adelphia- Newport's receipt of a fully executed copy of the Settlement Agreement, Adelphia- Newport, ,or its designee, shall pay to the City the amount of $22,339 (the "Payment "), but, in any event, no more than ninety (90) days from the date of final approval by the City Council, provided Adelphia- Newport has received a fully executed copy of this Transfer Agreement and the Settlement Agreement no later than ten (10) business days prior to the end of such ninety (90)' day period. The Payment is paid in, and only in, complete satisfaction of all matters addressed in the Settlement Agreement. The City hereby delegates to the Office of the City Attorney all necessary authority to finalize the Settlement Agreement. In regard to said Payment, the parties expressly agree and covenant as follows: A. The Payment is within the exclusions from the term "franchise fee" set forth in 47 U.S.C. § 542(g)(2); and B. The Payment shall not be deemed to be in the nature of a tax, and shall be in addition to any and all taxes of general applicability or other fees or charges which the Franchisee shall be required to pay to the City or to any state or federal agency or authority; and C. The Franchisee shall not have or make any claim or any deduction or other credit of all or any part of the amount of the Payment to be made pursuant to this Transfer Agreement from or against any City or other governmental taxes of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee; or assessment which is unduly discriminatory against cable operators or cable subscribers or income taxes) or other fees • or charges which the Franchisee is required to pay to the City or other governmental agency; and D. The Franchisee shall not apply or seek to apply all or any part of the amount of the Payment to be made pursuant to this Transfer Agreement as a deduction or other credit from or against any City or other government taxes of general applicability (other than income taxes) or other fees • or charges; and E. The Franchisee shall not apply or seek to apply all or any part of the amount of any City or other government taxes or other fees or charges of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services) as a deduction or other credit from or against the Payment to be made pursuant to this Transfer Agreement; and 5 1 U710\04 OgnawrelDawmentANe n.BenchWewp rt Beach Transfer AgnementFinal M IN6.DOC 0 F. In regard to the Payment made to the City pursuant to this Transfer Agreement, the Franchisee, or any affiliated party, will not pass through, externalize, or otherwise attempt to add the costs of the Payment to any regulated rate. 16. The City and Franchisee shall enter into a Memorandum of Understanding ( "MOU ") in the form attached hereto as Exhibit B. In the event the Proposed Transaction does not close by December 31, 2006, then the MOU shall be void and of no force or effect, this Transfer Agreement shall also be void ab initio and of no force or effect, and the consent to the Proposed Transactions shall be deemed disapproved for good cause as of January 24, 2006. CITY OF NEWPORT BEACH, a municipal Corporation �✓ '% V^ ���� By Its: Mayor ADELPHIA CABLEVISION OF NEWPORT BEACH,LLC a Delaware limited liability company By: Ft. Myers Cablevision, LLC, a Delaware limited liability company, Its Sole Member, By: Ft. Myers Acquisition Limited Partnership, a Delaware limited partnership Its Sole Member, By: Olympus Communications, L.P., a Delaware limited partnership, Its General Partner, By: ACC Operations, Inc. a Delaware corporation Its Managing General Partner 6 1: \1710\04MianweDo mentANewpn Bw6c Ne n 8each1'rwfa Agr .M Fi.1051206.DOC • • ADELPHIA COMMUNICATIONS CORPORATION ,_ ,, _% TIME WARNER NY CABLE LLC Its: TIME WARNER CABLE INC. Its: APPROVED AS TO FORM: 7 L \I7f%04Mignaiure Dnnumeats\ Ne wport BeacMNmpon Beach Transfer Agrt mentpitla1061206DOC ® 0 ADELPHIA COMMUNICATIONS CORPORATION LIM HUM :tl N Y CABLE LLC I l � TIME WARNER CABLE INC. Lo Its: APPROVED AS TO FORM: By Its: 7 I:\I]IO \U4tl \Jig�eture Do�vmc�bWewpon BeachlNewport Beech Transfer: Agreement Fiea1 MIM.DOC E EXHIBIT A TIME WARNER CABLE INC. GUARANTY GUARANTY, dated as of June 27, 2006, made by TIME WARNER CABLE INC., a Delaware corporation ( "Time Warner Cable" or "Guarantor'), in favor of the City of Newport Beach, California (`Beneficiary "). WHEREAS, in accordance with the relevant provisions of the City of Newport Beach Municipal Code, the Beneficiary, pursuant to action by the City Council on June 27, 2006, has approved the assignment of the Franchise (the "Franchise ") granted by Ordinance No. 1197 (the "Franchise Agreement ") from Adelphia Cablevision of Newport Beach, LLC ( "Adelphia- Newport") to Time Warner NY Cable LLC ( "TWNY" or "Transferee "), an indirect subsidiary of Time Warner Cable. WHEREAS, the City's approval was conditioned, among other things, on Guarantor unconditionally guaranteeing the performance of TWNY under the Franchise Agreement, the "Agreement Relating to the Consent of the City of Newport. Beach to the Transfer of the Franchise Agreement held by Adelphia Cablevision of Newport Beach, LLC to Time Warner NY Cable LLC" (the "2006 Transfer Agreement "), and the Memorandum of Understanding entered into pursuant to the 2006 Transfer Agreement (collectively, the "Legal Documents "); and WHEREAS, upon closing of the transaction approved by the 2006" Transfer Agreement, Guarantor will have a substantial interest in the cable system and the Franchise, as well as in the management and control ofTWNY and in the Legal Documents. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce Beneficiary to consent to the transfer of the EXHIBIT A -I- 11111M0481SignaWn, -0cuaanUNMNp Be hWe n Beach TnMfer Agreement Fina1061206.DM • 0 Franchise Agreement issued by Beneficiary and currently held by Adelphia- Newport to TWNY, in accordance with the Federal Communications Commission Form 394 filed by TWNY, Guarantor agrees as follows: 1. Interpretive Provisions. (a) The words "hereof," "herein" and "hereunder" and words of similar import, when used in this Guaranty, shall refer to this Guaranty as a whole and not to any particular provision of this Guaranty, and section and paragraph references are to this Guaranty unless otherwise specified. (b) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. 2. Guaran . (a) From and after the close of the transfer, Guarantor unconditionally and irrevocably guarantees to Beneficiary the timely and complete performance of all obligations of the Transferee under the Legal, Documents (the "Guaranteed Obligations"). The Guaranty is an irrevocable, absolute, continuing guarantee of payment and performance, and not a guarantee of collection. If the Transferee fails to pay any of its monetary Guaranteed Obligations in full when due in accordance with the terms of the Legal Documents, Guarantor will promptly pay the same to Beneficiary or procure payment of same to Beneficiary. Anything herein to the contrary notwithstanding, Guarantor shall be entitled to assert as a defense hereunder any defense that is or would be available to the Transferee under the Legal Documents or otherwise. (b) This Guaranty shall remain in full force and effect for so long as the Transferee, or its successors or assigns, are providing services over the cable system in the City under the Franchise Agreement; provided, however, that this Guaranty shall terminate upon EXHIBIT A -2- 1 \1710 \04a \Signature Do.me.UW.w AeeachWe nReach T..fwA,rva.M Fina1061206.DOC • ! the earliest to occur of. (i) performance in full of all Guaranteed Obligations at a time when no additional Guaranteed Obligations remain outstanding or will accrue to the Transferee under the Franchise Agreement, or (ii) any direct or indirect transfer of the Franchise from Transferee to, or direct or indirect acquisition (whether pursuant to a sale of assets or stock or other equity interests, merger or otherwise) of Transferee or any successor thereto by any other person or entity, a majority of whose equity and voting interests are not beneficially owned and controlled, directly or indirectly, by Guarantor, provided that any such direct or indirect transfer is subject to any terms and conditions as may be imposed by the City in connection with the transfer approval process required by the Legal Documents. Upon termination of this Guaranty in accordance with this Section 2(b), all contingent liability of Guarantor in respect hereof shall cease and Guarantor shall remain liable solely for Guaranteed Obligations accrued prior to the date of such termination. 3. Waiver. Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by Beneficiary upon this Guaranty or acceptance of this Guaranty. Guarantor waives diligence, presentment, protest and demand for payment to the Transferee or Guarantor with respect to the Guaranteed Obligations; provided, however, that Guarantor shall be furnished with a copy of any notice of or relating to default under the Franchise to which the Transferee is entitled or which is served upon the Transferee at the same time such notice is sent to or served upon the Transferee. 4. Representations and Warranties. Each of Guarantor and Beneficiary represents and warrants that: (i) the execution, delivery and performance by it of this Guaranty is within its corporate, limited liability company or other powers, have been duly authorized by all necessary corporate, limited liability company or other action, and do not contravene any law, order, decree or other governmental restriction binding on or affecting it, and (ii) no EXHIBIT A -3- M1710\ 048 \SiBpature DocumentsWewport Bnch\Newp d Beach Trnmfer Agreement Fin[ DOC • 0 authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution; delivery and performance by it of this Guaranty, except as may have been obtained or made, other than, in the case of clauses (i) and (ii), contraventions or lack of authorization, approval, notice; filing or other action that would not, individually or in the aggregate, impair or delay in any material respect such party's ability to perform its obligations hereunder. 5. Binding Effect: This Guaranty, when executed and delivered by both Beneficiary and Guarantor, will constitute a valid and legally binding obligation of Guarantor, enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency or other similar laws applicable to creditors' rights generally and by equitable principles (whether enforcement is sought in equity or at law). 6. Notices. All notices, requests, demands, approvals, consents and other communications hereunder shall be in writing and shall be deemed to have been duly given and made if served by personal delivery upon the party for whom it is intended or delivered by registered or certified mail, return receipt requested, or if sent by telecopier, provided that the telecopy is promptly confirmed by telephone confirmation thereof, to the party at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such party: To Guarantor and Transferee: Time Warner Cable Inc. 290 Harbor Drive Stamford, CT 06902 -6732' Telephone: (203) 328 -0631 Telecopy: (203) 328 -4094 Attention: General Counsel EXHIBIT A -4- 1: \1710\NMignatu I aaenlsWewport Beach\N w n.Beach Tr fa, Agreement Final M12M.WC • To Beneficiary: City of Newport Beach Telecopy: Attention: City Clerk With Copy to: City Manager City of Newport Beach Telecopy: • 7. Integration. This Guaranty represents the agreement of Guarantor with respect . to the subject matter hereof and there are no promises or representations by Guarantor or Beneficiary relative to the subject matter hereof other than those expressly set forth herein. 8. Amendments in Writing. None of the terms or provisions of this Guaranty may be waived, amended, supplemented or otherwise modified except by a written instrument executed by Guarantor and Beneficiary, provided that any right, power or privilege of Beneficiary arising under this Guaranty may be waived by Beneficiary in a letter or agreement executed by Beneficiary. 9. Section Headings. The section headings used in this Guaranty are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. 10, No Assignment or Benefit to Third Parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon anyone other than Guarantor and Beneficiary and their respective permitted assigns, any rights or remedies under or by reason of this Guaranty. EXHIBIT A -5- - \1]10\ 048 \Signature Ducumenu\Ne 411e h \Naa,an Bann Transfer Agemment Final 061206.WC 0 • 11. Expenses. All costs and expenses incurred in connection with this Guaranty and the transactions contemplated hereby shall be borne by the party incurring such costs and expenses. 12. Counterparts. This Guaranty may be executed by Guarantor and Beneficiary on separate counterparts (including by facsimile transmission); and all of said counterparts taken together shall be deemed to constitute one and the same instrument. 13. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly executed and delivered by its duly authorized officer as of the day and year first above written. TIME WARNER CABLE INC,. Name: Title: CITY OF NEWPORT BEACH, a municipal corporation By: Its: Mayor EXHIBIT A -6- 1: \1710 \068 \Slgnaninap umcnu\ n"on HeachWe n Desch Transfer Agru a Final 061206.10 • r EXHIBIT B MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF NEWPORT BEACH, CALIFORNIA AND TIME WARNER NY CABLE LLC RELATING TO THE TERMS AND CONDITIONS UPON WHICH THE EXISTING CABLE TELEVISION FRANCHISE WILL BE RENEWED This Memorandum of Understanding (the "MOU ") constitutes a valid and binding contractual agreement between the City of Newport Beach, California (the "City "), a California municipal corporation organized and existing under the State of California, on the one hand, and Time Warner NY Cable LLC ( "Franchisee "), on the other, upon acquisition. of the franchise currently held by Adelphia Cablevision of Newport Beach, LLC (the "Franchise "), and is dated as of June 27, 2006. The MOU shall constitute a valid and binding obligation of the parties, enforceable through the laws of contract, and is hereby deemed by the parties to be consistent and enforceable under all relevant provisions of federal and state law. The parties agree and acknowledge that the City has accepted and relied upon the Franchisee's voluntary execution of this MOU in partial consideration of its approval of the Proposed Transactions, as that term is defined in the "Agreement Relating to the Consent of the City of Newport Beach to the Transfer of the Franchise Agreement Held by Adelphia Cablevision of Newport Beach, LLC to Time Warner NY Cable LLC" ( "Transfer Agreement "). Section 1. Franchise Term. Franchise term of ten (10) years to terminate December 31, 2016; such term to commence December 31, 2006 unless the parties hereto agree in writing otherwise. EXHIBIT B -1- • Section 2. PEG Support. The Franchisee shall provide funding for public, educational and governmental ( "PEG ") access as follows; (a) The Franchisee shall pay the City an initial PEG Access grant ( "Initial PEG Access Grant") by no later than January 31, 2007 the sum of which shall equal the number of Franchisee's cable television subscribers who pay for the basic service tier ( "BST') of cable television service residing in the City ( "Subscriber ") as of December 31, 2006 multiplied by $28.00: By way of example, if there are 1500 such Subscribers on December 31, 2006, the payment would be $42,000 ($28'x 1500). The obligations incurred pursuant to this Section (a) shall be deemed to be incurred on December 31, 2006, unless the parties hereto agree in writing otherwise. (b) Commencing January 1, 2007, Franchisee shall provide a monthly PEG giant (the "Ongoing PEG Grant ") of $.50 per Subscriber per month. With respect to bulk accounts, Franchisee shall pay such $50 based on an equivalent subscriber account (total bulk revenues divided by the published BST rate). The Ongoing PEG Grant set forth herein is in lieu of and replaces any PEG Access Support (as such term is defined hereinbelow) obligations in the Franchise or otherwise as of January 1, 2007. (c) Upon request, the City shall provide Franchisee with an annual accounting of the expenditures of both the Initial PEG Access Grant and the Ongoing PEG Grant (collectively, the "PEG Grants ") provided for herein to ensure such grants are used for PEG access capital and non - capital purposes. If Franchisee believes the City has EXHIBIT B -2- ® • failed to demonstrate compliance with the foregoing requirement, Franchisee shall provide the City, within thirty (30) days of receipt of an annual accounting, notice of its objections to the use of the PEG Grants, or either of them. The parties shall thereafter meet at the reasonable request of either party to address the objections identified by Franchisee. If Franchisee reasonably concludes that the City has expended the PEG Grants, or either of them, in a manner inconsistent with the limitations imposed herein, the Franchisee may, after thirty (30) days notice to the City advise the City of its intention to implement a credit on its next regularly scheduled franchise fee payment in the amount of any expenditure inconsistent with PEG access purposes. If the City disputes Franchisee's allegation(s) and the City commences a franchise violation against Franchisee, then Franchisee shall pay the City the disputed amounts and the City shall hold the disputed monies in a separate interest bearing account until a final order is issued by a court of competent jurisdiction and all appeals are exhausted. Any monies, including interest on such monies, so held by the City shall be distributed in accordance with such final order (after exhaustion of any and all appeals) or as the City and Franchisee may agree., (d) The Ongoing PEG Grant shall continue throughout the duration of the Franchise unless otherwise directed in writing by the City. Subject to the provisions of paragraph (c) hereof, the Initial PEG Grant and the Ongoing PEG Grant may be used for equipment, facilities, and ongoing staffing and non - capital support for both one -way video PEG access services and two -way interactive PEG access services (collectively, "PEG Access Support"), at the City's sole discretion without offset or recoupment to the EXHIBIT B -3- • i franchise fee or any other payment due the City. The Ongoing PEG Grant shall be paid to the City on a quarterly basis. (e) The Franchisee agrees that the commitments indicated in this Section 2 shall not be charged against any franchise fees due the City during the term of the Franchise. The Franchisee agrees to meet all of the commitments of Section 2 through the term of the Franchise. (f) The City specifically reserves the right to grant, at any time, such additional franchises for a cable television system or authorizations which include the right to transmit video programming over closed transmission paths in the City ( "Additional Franchise"), as it deems appropriate, subject to applicable state and federal law, provided that if the City grants an Additional Franchise, then, unless expressly prohibited by taw, such Additional Franchise shall, when taken as a whole, contain no more favorable or less burdensome terms and conditions than those contained herein; provided, however, all franchises, including an Additional Franchise, shall be subject to the same material financial obligations (i.e., franchise fee payments and PEG Access Support obligations). Upfront PEG access capital grant obligations will be calculated on a pro -rata basis based on the term of the new franchise compared to that term granted hereunder. Monthly per customer PEG access grant payments will be based on the Franchisee's current obligation at the time that any additional franchise is awarded. 1. In the event the City elects to grant an Additional Franchise as provided in paragraph (f) hereof, the City will notify Franchisee in writing at least EXHIBITS -4- sixty (60) days in advance of granting such Additional Franchise, with a copy of the proposed Additional Franchise. 2. Within thirty (30) days after receipt, Franchisee may give written notice to the City that the proposed Additional Franchise is inconsistent with (f) above ( "Notice of Inconsistency "). 3. In the event Franchisee provides the City with a Notice of Inconsistency, the City shall, prior to granting the Additional Franchise, notify Franchisee of the City's determination related to Franchisee's Notice of Inconsistency. 4. If the City determines that the terms of an Additional Franchise are more favorable or less burdensome than those imposed upon Franchisee, then the City shall: (a) Make such modifications as it deems necessary to ensure that the terms of the Additional Franchise are no more favorable or less burdensome than those imposed upon Franchisee; or (b) Modify the terms and requirements of Franchisee's Franchise as mutually agreed to by the parties. Section 3. Franchise Renewal Agreement. (a) The parties shall negotiate in good faith for the purposes of development and mutual execution of a franchise renewal agreement (the "Renewal EXHIBIT B -5- • i Agreement ") including the terms and conditions hereof. The parties shall meet and confer as appropriate and necessary for the purposes of achieving this result. (b) If the parties are not able to mutually agree to a Renewal Agreement containing terms and conditions acceptable to all parties on or before December 31, 2006 (the "Negotiation Period "), the Franchise shall be, as of December 31, 2006, reinstated if expired and extended as modified by the terms and conditions of this MOU for a period specified in Section 1 hereof (the "Franchise Extension "). If the Franchise Extension occurs, the existing terms and conditions of the Franchise shall remain in effect except those terms and conditions of the Franchise shall be deemed amended and superseded to the extent inconsistent with the terms and conditions of this MOU. In the event of any conflict between the express provisions of the Franchise and this MOU, the MOU shall govern. In the event of any ambiguity regarding the joint interpretation of the Franchise and the MOU, the Franchise shall be interpreted in such a manner as to effectuate the terms and conditions of the MOU to the maximum extent possible. All provisions of the Franchise which are not affected by the MOU shall remain in full force and effect. (c) This MOU shall be effective upon its approval by the City Council; provided, however, if the Proposed Transaction (as that term is defined in the r Transfer Agreement) does not close by December 31, 2006, then this MOU shall be void and of no further force or effect. TIME WARNER NY CABLE LLC am Its: CITY OF NEWPORT BEACH, CALIFORNIA By: Its: Mayor Dated: Dated: ,Tune 27, 2 00 6 EXHIBIT B -7- 0 LI SETTLEMENT AND MUTUAL RELEASE AGREEMENT This Settlement and Mutual Release Agreement (the "Agreement") is made and entered into this 27th day of June, 2006, by and between the City of Newport Beach, California ("City") and Adelphia Cablevision of Newport Beach, LLC, a Delaware limited liability company ( "Adelphia- Newport"). A. The City Council of the City of Newport Beach, California granted a franchise to a predecessor of Adelphia- Newport, under the ownership and control of Adelphia Communications Corporation ( "ACC "), to construct, improve, operate and maintain a cable television system within the City (the "System ") pursuant to a Franchise Agreement dated January 27, 1967 and Ordinance No. 1197, as amended by Ordinance Nos. 1365, 86 -17 and 91- 43 ( "Franchise Agreement ") and Chapter 5.44 of the Municipal Code of Newport Beach ( "Ordinance "). The Franchise Agreement and Ordinance are referred to collectively herein as the "Franchise ". B. ACC, Adelphia -Orange and certain of their affiliates (collectively, the "Debtors ") are debtors in possession under title 11 of the United States Code (the "Bankruptcy Code "). The Debtors' chapter 11 cases are being jointly administered under case number 02 -41729 (REG) and are pending in the United States Bankruptcy Court of the Southern District of New York (the `Bankruptcy Court"). C. Pursuant to an Asset Purchase Agreement dated April 20, 2005 between ACC and Time Warner NY Cable LLC ( "TWNY "), the System and the Franchise Agreement are to be transferred to TWNY, an indirect subsidiary of Time Warner Cable (the "Transfer "). D. The Debtors served a Notice of Proposed Retention, Assumption and/or Assignment of Agreements and Proposed Cure Amounts on the City on December 15, 2005 (the "Cure Notice ") and the City filed its objection to such notice on January 13, 2006 (the "Objection "). E. The City has reviewed Adelphia- Newport's compliance with its commitments under the Franchise (the "Compliance Review"). The Compliance Review identified certain areas of alleged non - compliance. F. The City has filed duplicate proofs of claim, Claim Numbers 4003 and 18276, against the Debtors in the Bankruptcy Courtin the amount of $7,339.25 each (the "Proofs of Claim"). G. Both parties reserve all rights they may have with respect to the validity and enforceability of the Franchise. H. The City and the Debtors (collectively, the "Parties ") now desire to settle all existing claims related to Adelphia- Newport `s alleged past non - compliance with the Franchise; including, but not limited to, the specific issues identified in the Compliance Review (the "Franchise Review Claims "). The Parties now enter into this Agreement according to the terms set forth below. L \Ii101048VSignanue Documentv\N.P. B.h \Ne nU.a S%tl..., Agreement Fina1060 W.DOC • • AGREEMENT 1. Payment to the City. Adelphia- Newport shall pay the City the sum of Twenty Two Thousand Three Hundred Thirty -Nine Dollars ($22;339.00) (the "Settlement Amount") on or before the date that is ten (10) business days after the Effective Date (as that term is defined in Section 19 below), provided Adelphia- Newport has received a fully executed copy of this Agreement and the Transfer Agreement (as defined in Section 3 below). In the event the Settlement Amount is not timely paid to the City, this Agreement shall be null and void. 2. Assumption/Assianment of Franchise. The City agrees that timely payment of the Settlement Amount.shall be deemed to satisfy any claims the City may have against the Debtors, including, but not limited to, claims for amounts owed pursuant to the Compliance Review, claims asserted in the Objection, amounts asserted as owing in the Proofs of Claim; claims related to and arising under the Franchise, and that any defaults identified by the Compliance Review, asserted in the Objection or arising under the Franchise, and arising as of the date hereof, shall be deemed cured under section 365(b) of the Bankruptcy Code. 3. Transfer. If the City fails to adopt an Agreement approving the Transfer of the Franchise Agreement, in a form corresponding, in all material respects, to the draft Transfer Agreement attached as Exhibit A (the "Transfer Agreement"); neither the City nor Adelphia - Newport is bound by this Agreement and it shall have no operative force and effect. 4. Release by the City. Upon receipt of the Settlement Amount, the City shall fully and forever waive and release all of its claims (as such term is defined in section 101 (5) of title I 1 of the United States Code) against the Debtors, their affiliates, officers, directors; shareholders, partners; agents, contractors, employees, attorneys, predecessors, sureties, successors and assigns, whether known or unknown, monetary or non - monetary, as they may. exist on the date hereof (the "Released Claims "); provided, however, that the releases set forth in this section 4 shall not apply to any claims (a) arising after the date hereof, (b) to pay the Settlement Amount, (c) related to the duty to indemnify the City from third party claims, (d) related to the duty to restore property that is damaged, (e) relating to required activities with respect to the public rights -of -way arising after the date hereof, or (f) for taxes (collectively, the "Preserved Claims "), regardless of when such claims arose, but in no event shall such claims be allowed or paid if contrary to an order of the Bankruptcy Court in the Debtors' chapter 11 cases. The Released Claims include, but are not limited to, claims arising from any and all alleged or actual breaches of the Franchise, the Franchise Review Claims, or claims identified in the Objection and any and all related regulatory costs, including all legal, accounting, technical, and inspection costs arising prior to the date hereof. Upon payment of the Settlement Amount, all Released Claims shall be automatically released, deemed disallowed and expunged, the Objection shall be deemed withdrawn and the Proofs of Claims shall be deemed disallowed and expunged. The treatment of the Proofs of Claim described herein shall be set forth in a proposed order to be presented to the Bankruptcy Court for approval. 5.. Release by the Debtors. Upon release of the City's claims against the Debtors as provided in Section 4 of this Agreement, the Debtors shall fully and forever waive and release all of their claims (as such term is defined in section 101(5) of the Bankruptcy Code) against the City and its representatives, officers, agents, and employees and their predecessors, successors and assigns, which are related to, or arising from the Franchise and the Compliance Review, whether known or unknown, monetary or non - monetary, as they may exist on the date hereof; 1: \171M04MSignatum Wo mrot WmpaHeachwetwon Beach Smltment AgeemgntFhm )W0906.DOC • ! provided, however, that the releases set forth in this section 5 shall not apply to any Preserved Claims or other claims arising after the date hereof. 6. Effect on Franchise Renewal. This agreement neither expands nor contracts the rights of Adelphia- Newport under 47 U.S.C. § 546(a) -(g). 7.. Inapplicability of Civil Code &1542. Each of the Parties to this Agreement acknowledges and agrees that the releases contained in this Agreement are special releases and that § 1542 of the Civil Code of the State of California is not applicable. If and to the extent it should be determined that the releases contained in this Agreement are not special releases, contrary to the Parties' acknowledged intention and agreement, each Party specifically waives the benefit of the provisions of §1542 of the Civil Code of the State of California, which provides as follows :: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 8. No Admission of Liability. Each Party acknowledges and agrees that this Agreement accomplishes the compromise of disputed claims and is not intended to constitute an admission of liability, wrongdoing or error on the part of any Party or their respective employees, agents, attorneys, representatives, or parent, subsidiary or affiliated companies. Any liability, wrongdoing or error is expressly denied by each Party to this Agreement. 9. Waiver of Unknown Claims. Each Party hereby acknowledges that such Party is aware that such Party may later discover facts in addition to or different from those which such Party now knows or believes to be true with respect to the subject matter of this Agreement and that it is such Party's intention, notwithstanding, to fully, finally and forever, settle and release all of the claims released by this Agreement, known or unknown, suspected or unsuspected, which now exist, may exist or previously existed between the Parties. In furtherance of such intention, the releases given in this Agreement shall be and shall remain in effect as a full and complete release with respect to the claims identified above, notwithstanding the discovery or existence of any such additional or different facts. The Parties further accept and assume the risk that such facts may turn out to be different from the facts now known or believed to be true by the Parties and agree that the releases given in this Agreement shall remain in all respects effective and shall not be subject to termination or rescission by reason of any such difference in fact. 10. Authority. Subject to paragraph 20 of this Agreement, each person executing this Agreement on behalf of a corporation or other legal entity warrants that he or she holds the position indicated beneath his or her signature and that he or she has been duly authorized by said corporation or other legal entity to execute this Agreement on its behalf. 11. Independent Advice. Each Party to this Agreement acknowledges and agrees that such Party has been represented throughout the negotiation and documentation of this Agreement by attorneys of the Party's choice and has been advised by such attorneys with respect to this G\VIW4&SSignanureD cumnnmWewpun BaachlNe nBench Saibmen[ Agreement Final 060906,DOC • i Agreement and the effect of the releases given in this Agreement. Each Party to this Agreement further acknowledges and agrees that such Party has read this Agreement, knows the contents of this Agreement and, in executing this Agreement, has relied solely on the Party's own judgment, belief and knowledge, and the advice and recommendations of the Party's attorneys concerning this Agreement, and has not been induced to enter into this Agreement by any representation or statement of any other party not expressly contained in this Agreement. 12 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties to this Agreement and their respective affiliates, agents, representatives, successors and assigns. 13. Integration. This Agreement and the Transfer Agreement set forth the entire agreement between the Parties with respect to the settlement and release of claims specified herein. All agreements, covenants, representations and warranties, express or implied, oral or written, of the Parties with regard to the subject matter addressed herein are contained in this Agreement and the agreements referred to herein, including the Transfer Agreement. In the event of a conflict between the terms of this Agreement and the terms of the Transfer Agreement, the terms of this Agreement shall control. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any Party to any other Party. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to the subject matter hereof are waived, merged in this Agreement and superseded by it. 14. Additional Agreement. In addition to the Agreement to be delivered as provided in this Agreement, each of the Parties agrees to execute and deliver such additional agreements and take such other action as may be reasonably required to carry out the terms of this Agreement. 15. Waiver. No breach of any provision of this Agreement can be waived unless in writing and mutually agreed upon by the affected Parties. Waiver of any one breach of this Agreement shall not be deemed to be a waiver of any other breach of that or any other provision of this Agreement. 16. Modification and Amendment. No modification or amendment of any of the terms or provisions of this Agreement shall be binding upon any Party to this Agreement unless made in writing and signed by all Parties or by a duly authorized representative or agent of such Parties. 17. No Construction. No Party to this Agreement or such Party's attorney shall be deemed to be the drafter of this Agreement for purposes of interpreting or construing any of the provisions of this Agreement. This Agreement shall be interpreted in accordance with the fair meaning of its language and not strictly for or against any of the Parties to this Agreement. 18. Execution in Counterparts. This Agreement may be executed in any number of copies by the Parties to this Agreement on separate counterparts • and will become effective upon signature by all Parties upon one or more of such identical counterparts. 19. Effective Date. This Agreement shall be effective upon the latest to occur of: (a) Bankruptcy Court approval ofthis Agreement; (b) Debtors' receipt of a fully executed copy of 4 IM710 \048 \Signalum ibcu nen%QNew,x n Beach \Newpon Beach Sntkmem Agreement Final 060 .DOC 0 • this Agreement; and (c) final approval of the Transfer Agreement by the City Council and Mayor of the City ( "Effective Date "). 20. Bankruptcy Court Approval. This Agreement is subject to approval by the Bankruptcy Court presiding over the Debtors' pending bankruptcy cases. Such Bankruptcy Court approval may be obtained pursuant to settlement procedures previously approved by the Bankruptcy Court. The Debtors shall not be obligated to pay the Settlement Amount unless and until the Bankruptcy Court approves this Agreement. In the event that the Bankruptcy Court does not approve this Agreement within forty -five (45) days of final approval by the City Council: (a) nothing contained herein shall be deemed to be .a waiver of any claims or an admission of liability by any Party hereto; and (b) this Agreement shall be null and void, and all rights of the Parties prior to this Agreement shall be preserved. 2.1. Payment. As to any and all payments made to the City pursuant to this Agreement (collectively, the "Payment "), the parties agree as follows: A. The Payment is within the exclusions from the term "franchise fee" set forth in Section 622(g) (2) of the Cable Act (47 U.S.C. section 542(g) (2)); and B. The Payment shall not be deemed to be in the nature of :a tax, and shall be in addition to any and all taxes of general applicability or other fees or charges which Adelphia- Newport shall be required to pay to the City or to any state or federal agency or authority; and C. Adelphia- Newport shall not have or make any claim or any deduction or other credit of all or any part of the amount of the Payment to be made pursuant to this Agreement from or against any City or other governmental taxes of general applicability (including any such tax, fee; or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers or income taxes) or other fees or charges which Adelphia- Newport is required to pay to the City or other governmental agency; and D. Adelphia- Newport shall not apply or seek to apply all or any part of the amount of the Payment to be made pursuant to this Agreement as a deduction or other credit from or against any City or other government taxes of general applicability (other than income taxes) or other fees or charges; and E. Adelphia- Newport shall not apply or seek to apply all or any part of the amount of any City or other government taxes or other fees or charges of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services) as a deduction or other credit from or against the Payment to be made pursuant to this Agreement; and F. Adelphia- Newport or any affiliated party will not pass through, externalize, or otherwise attempt to add the costs of the Payment to any regulated rate. Adelphia- Newport shall bear the full economic burden of the Payment. LMIM04MSignatureD cumenxWewp nBeach \Nmvp g h Setlement Agmament Fiml 0bg .DOC ! 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written. CITY OF NEWPORT BEACH Am—;,;­1 ---t;— I� APPROVED AS TO FORM: L-2 Its:. ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC, a Delaware limited liability company, By: Ft. Myers Cablevision, LLC, a Delaware limited liability company, Its Sole Member, By: Ft. Myers Acquisition Limited Partnership, a Delaware limited partnership, Its Sole Member, By: Olympus Communications, L.P., a Delaware limited partnership, Its General Partner; By: ACC Operations, Inc. a Delaware corporation, Its Managing General Partner, By: Its U gip' &'�!�-x Chi [ \1]IOW481.Signhture D.e.n W\N. nDeech \Newport Burch Setikment Agree..tFim106(1906WC. 4 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF NEWPORT BEACH, CALIFORNIA AND TIME WARNER NY CABLE LLC RELATING TO THE TERMS AND CONDITIONS UPON WHICH THE EXISTING CABLE TELEVISION FRANCHISE WILL BE RENEWED This Memorandum of Understanding (the "MOU ") constitutes a valid and binding contractual agreement between the City of Newport Beach, California (the "City"), a California municipal corporation organized and existing under the State of California, on the one hand, and Time Warner NY Cable LLC ( "Franchisee "), on the other, upon acquisition of the franchise currently held by Adelphia Cablevision of Newport. Beach, LLC (the "Franchise "), and is dated as of June 27, 2006. The MOU shall constitute a valid and binding obligation of the parties, enforceable through the laws of contract, and is hereby deemed by the parties to be consistent and enforceable under all relevant provisions of federal and state law. The parties agree and acknowledge that the City has accepted and relied upon the Franchisee's voluntary execution of this MOU in partial consideration of its approval of the Proposed Transactions, as that term is defined in the "Agreement Relating to the Consent of the City of Newport Beach to the Transfer of the Franchise Agreement Held by Adelphia Cablevision of Newport Beach, LLC to Time Warner NY Cable LLC" ( "Transfer Agreement "). Section 1. Franchise Term. Franchise term of ten (10) years to terminate December 31, 2016; such term to commence December 31, 2006 unless the parties hereto agree in writing otherwise. 1:\I7I0 \0 "igwureD cumenuWmpon Br hWmp ft Rc=h MOU. Fine1061206.doc • • Section 2. PEG Support. The Franchisee shall provide funding for public, educational and governmental ( "PEG ") access as follows: (a) The Franchisee shall pay the City an initial PEG Access grant ( "Initial PEG Access Grant") by no later than January 31, 2007, the sum of which shall equal the number of Franchisee's cable television subscribers who pay for the basic service tier (`BST ") of cable television service residing in the City ( "Subscriber ") as of December 31, 2006 multiplied by $28.00. By way of example, if there are 1500 such Subscribers on December 31, 2006, the payment would be $42,000 ($28 x 1500). The obligations incurred pursuant to this Section (a) shall be deemed to be incurred on December 31, 2006, unless the parties hereto agree in writing otherwise. (b) Commencing January 1, 2007, Franchisee shall provide a monthly PEG grant (the "Ongoing PEG Grant ") of $.50 per Subscriber per month. With respect to bulk accounts, Franchisee shall pay such $.50 based on an equivalent subscriber account (total bulk revenues divided by the published BST rate). The Ongoing PEG Grant set forth herein is in lieu of and replaces any PEG Access Support (as such terms defined hereinbelow) obligations in the Franchise or otherwise as of January 1, 2007. (c) Upon request, the City shall provide Franchisee with an annual accounting of the expenditures of both the Initial PEG Access Grant and the Ongoing PEG Grant (collectively, the "PEG Grants ") provided for herein to ensure such grants are used for PEG access capital and non - capital purposes, If Franchisee believes the City has failed to demonstrate compliance with the foregoing requirement, Franchisee shall 2 1: \I710\NMigaawre Mcurnenu \Newport BeachWm,x n Beach MOU Final Nl Mi Eoc 0 • provide the City, within thirty (30) days of receipt of an annual accounting, notice of its objections to the use of the PEG Grants, or either of them. The parties shall thereafter meet at the reasonable request of either party to address the objections identified by Franchisee. If Franchisee reasonably concludes that the City has expended the PEG Grants, or either of them, in a manner inconsistent with the limitations' imposed herein, the Franchisee may, after thirty (30) days notice to the City advise the City of its intention to implement a credit on its next regularly scheduled franchise fee payment in the amount of any expenditure inconsistent with PEG access purposes. If the City disputes Franchisee's allegation(s) and the City commences a franchise violation against Franchisee, then Franchisee shall pay the City the disputed amounts and the City shall hold the disputed monies in.a separate interest bearing account until a final order is issued by a court of competent jurisdiction and all appeals are exhausted. Any monies, including interest on such monies, so held by the City shall be distributed in accordance with such final order (after exhaustion of any and all appeals) or as the City and Franchisee may agree. (d) The Ongoing PEG Grant shall continue throughout the duration of the Franchise unless otherwise directed in writing by the City. Subject to the provisions of paragraph (c) hereof, the Initial PEG Grant and the Ongoing PEG Grant may be used for equipment, facilities, and ongoing staffing and non - capital support for both one -way video PEG access services and two -way interactive PEG access services (collectively, "PEG Access Support"), at the City's sole discretion without offset or recoupment to the franchise fee or any other payment due the City. The Ongoing PEG Grant shall be paid to the City on a quarterly basis. BMOW S \Signature OowmenUWewpon BeachWewpon Beach MOU Final 061206.doc (e) The Franchisee agrees that the commitments indicated in this Section 2 shallnot be charged against any franchise fees due the City during the term of the Franchise. The Franchisee agrees to meet all of the commitments of Section 2 through the term of the Franchise. (f) The City specifically reserves the right to grant, at any time, such additional franchises for a cable television system or authorizationis which include the right to transmit video programming over closed transmission paths in the City ( "Additional Franchise "), as it deems appropriate, subject to applicable state and federal law, provided that if the City grants an Additional Franchise; then, unless expressly prohibited by law, such Additional Franchise shall, when taken as a whole, contain no more favorable or less burdensome terms and conditions than those contained herein; provided, however, all franchises, including an Additional Franchise, shall be subject to the same material financial obligations (i.e., franchise fee payments and PEG Access Support obligations).. Upfront PEG access capital grant obligations will be calculated on a pro -rata basis based on the term of the new franchise compared to that term granted hereunder. Monthly per customer PEG access grant payments will be based on the Franchisee's current obligation at the time that any additional franchise is awarded. In the event the City elects to grant an Additional Franchise as provided in paragraph (f) hereof, the City will notify Franchisee in writing at least sixty (60) days in advance of granting such Additional Franchise, with a copy of the proposed Additional Franchise. 4 1:\ 101010481Signwmie .DocumenbWeviport Beach \Newport Beedt.MOU Pina1061206Aoc 0 0 2. Within thirty (30) days after receipt, Franchisee may give written notice to the City that the proposed Additional Franchise is inconsistent with (f) above ( "Notice of Inconsistency "). 3. In the event Franchisee provides the City with allotice of Inconsistency, the City shall, prior to granting the Additional Franchise, notify Franchisee of the City's determination related to Franchisee's Notice of Inconsistency. 4. If the City determines that the terms of an Additional Franchise are more favorable or less burdensome than those imposed upon Franchisee, then the City shall: (a) Make such modifications as it deems necessary to ensure that the terms of the Additional Franchise are no more favorable or less burdensome than those imposed upon Franchisee; or (b) Modify the terms and requirements of Franchisee's Franchise as mutually agreed to by the parties. Section 3. Franchise Renewal Agreement. (a) The parties shall negotiate in good faith for the purposes of development and mutual execution of a franchise renewal agreement (the "Renewal Agreement ") including the terms and conditions hereof. The parties shall meet and confer as appropriate and necessary for the purposes of achieving this result. I\I MMMSigutump cumeclsWewp nBeach \Newport Beach MOU Final W2M.doc 0 • (b) If the parties are not able to mutually agree to a Renewal Agreement containing terms and conditions acceptable to all parties on or before December 31, 2006 (the "Negotiation Period "), the Franchise shall be, as of December 31, 2006, reinstated if expired and extended as modified by the terns and conditions of this MOU for a period specified in Section 1 hereof (the "Franchise Extension "). If the Franchise Extension occurs, the existing terms and conditions of the Franchise shall remain in effect except those terms and conditions of the Franchise shall be deemed amended and superseded to the extent inconsistent with the terms and conditions of this MOU. In the event of any conflict between the express provisions of the Franchise and this MOU, the MOU shall govern. In the event of any ambiguity regarding the joint interpretation of the Franchise and the MOU; the Franchise shall be interpreted in such, a manner as to effectuate the terms and conditions of the MOU to the maximum extent possible. All provisions of the Franchise which are not affected by the MOU shall remain in full force and effect. (c) This MOU shall be effective upon its approval by the City Council; provided, however, if the Proposed Transaction (as that term is defined in the Transfer Agreement) does not close by December 31, 2006; then this MOU shall be void and of no further force or effect. TIME WARNER NY CABLE LLC By: w. Its: CVP, y1 , s Dated: S CITY OF NEWPORT BEACH, CALIFORNIA By: .. 9 Its: M Dated: June 27 2006 I 9 I 710 \W \Sigremre DocumemsWewpon BemhCJe . Beach MOU Fiaal O 12064 Ll CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 10 June 27, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: CABLE TELEVISION RESOLUTION 2006 -_, MEMORANDUM OF UNDERSTANDING, SETTLEMENT AND MUTUAL RELEASE AGREEMENT, AND CONSENT TO TRANSFER AGREEMENT RELATING TO TIME WARNER AND ADELPHIA ISSUE: Should the City accept a negotiated settlement agreement with Time Warner and Adelphia and further consent to a transfer of the Adelphia cable television franchise to Time Warner? RECOMMENDATION: Adopt Resolution 2006 - consenting to a transfer of a franchise for cable television from Adelphia to Time Warner; and 2. Authorize the Mayor or the City Manager to execute any documents relating to the transfer, including but not limited to a Memorandum of Understanding, a Settlement and Mutual Release Agreement, and a Consent to Transfer Agreement. DISCUSSION: Adelphia has held a franchise to operate a cable system in about 60 % of the community for the past several years. Prior to Adelphia's arrival, Comcast held the franchise over the same territory. Cox Communications holds a franchise for the roughly 40 % of the City not served by Adelphia. Recent data on how many subscribers each company has in Newport Beach is on the next page. In 2002, Adelphia filed for bankruptcy. In April of 2005, TWI and Comcast agreed to acquire Adelphia for $17.6 billion through a deal with Adelphia's creditors. In June 2005, the FCC received a submittal by TWI and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves • Resolution Relating Adelphia -Time Warner Transfer June 27, 2006 Page 2 the companies' (in our case, TWI, because TWI will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent to approve the Application whereby TWI would takeover the Franchise that Adelphia holds. City Concerns in Late 2005 and Early 2006. To approve the Transfer, the applicant must demonstrate, among other things, that it is a legally, technically, and financially qualified applicant. To properly analyze the financial qualifications, it is important to look at, among other things, the personal wealth of the Proposed Transferee, the economic reasonableness of the transaction to determine whether the transaction will impose unreasonable financial burdens upon the purchaser, the borrowing capacity of the Proposed Transferee, and financial obligations of the Proposed Transferee. This is important because if the applicant is unqualified, it could result in material rate increases beyond that associated with normal operation of a cable system, reduction in service quality based upon cost cutting and expense minimalization, a combination thereof, a premature sale of the system, or financial insolvency. As part of the City's analysis of the proposed Transfer, the City tendered numerous information requests to the parties submitting the Application (the "Applicants ") relating to the legal, technical, and financial qualifications of the Proposed Transferee, and the potential impact on rates and services. As a result of the City's concerns about not receiving the material it requested, the City Council adopted Resolution 2006 -7 on January 24, 2006 that rejected (and a separate resolution [2006 -8] that conditionally approved) the Adelphia to Time Warner transfer. For more information about the rejection decision; see the 1 -24 -2006 staff report associated with these two resolutions (look for these on the City's website at www. city. newport- beach.ca.us). 0 Newport Beach Cable Fact Sheet ',Subgcdber Information Adelphla Cox Total # of homes passed in Franchise Area 31,123 13,900 45,023 # of cable N subscribers 16,978 10,100 27,078 %q of homes passed that subscribe to cable 55% 73% 60% _ p -- 1999 (Calendar Year) $ 656,558 $ 266,671 $ 923,229 2000 $ 722,714 $ 280,602 $ 1,003,316 2001 $ 705,709 $ 395,824 $ 1,101,533 2002 $ 714,762 '$ 394,732 $ 1,109,494 2003 $ 640,330 $ 470,404 $ 1,110,734 2004 $ 766,343 $ 494,411 $ 1,260,753 -- 2005 (to date, Includes 4th 0'04) $ 411,480 $ 402,014 $ 813,494 City Concerns in Late 2005 and Early 2006. To approve the Transfer, the applicant must demonstrate, among other things, that it is a legally, technically, and financially qualified applicant. To properly analyze the financial qualifications, it is important to look at, among other things, the personal wealth of the Proposed Transferee, the economic reasonableness of the transaction to determine whether the transaction will impose unreasonable financial burdens upon the purchaser, the borrowing capacity of the Proposed Transferee, and financial obligations of the Proposed Transferee. This is important because if the applicant is unqualified, it could result in material rate increases beyond that associated with normal operation of a cable system, reduction in service quality based upon cost cutting and expense minimalization, a combination thereof, a premature sale of the system, or financial insolvency. As part of the City's analysis of the proposed Transfer, the City tendered numerous information requests to the parties submitting the Application (the "Applicants ") relating to the legal, technical, and financial qualifications of the Proposed Transferee, and the potential impact on rates and services. As a result of the City's concerns about not receiving the material it requested, the City Council adopted Resolution 2006 -7 on January 24, 2006 that rejected (and a separate resolution [2006 -8] that conditionally approved) the Adelphia to Time Warner transfer. For more information about the rejection decision; see the 1 -24 -2006 staff report associated with these two resolutions (look for these on the City's website at www. city. newport- beach.ca.us). 0 ® Resolution Relating Adelphia -Time Warner Transfer June 27, 2006 Page 3 Negotiations & Result. After months of negotiations with Time Warner and Adelphia, the City's special counsel on this issue, Bill Marticorena of Rutan and Tucker, now recommends the City's approval of the transfer. The negotiations have resulted in: 1 — A Memorandum of Understanding (MOU) that would be binding on Time Warner for ten years (until December 31, 2016) and that includes the following benefits for the City and its residents: For support of Public, Educational, and Government (PEG) programming, an Ongoing PEG Grant of $0.50 per subscriber per month (roughly $120,000 per year); An Initial PEG Access Grant of $28.00 per subscriber (roughly $476,000 on a one -time basis); and Maintenance of current 5 % franchise fee. The MOU also directs that the City and Time Warner negotiate a new Franchise Agreement with the goal of completing the Agreement by December 31, 2006. 2 — A Settlement and Mutual Release Agreement that settles all past claims the City has against Adelphia and Time Warner, thus compensating the City $22,339.00. 3 - A Consent to Transfer Agreement that offers the City's consent to the transfer of the current Adelphia cable television franchise to Time Warner. This Agreement is not a new Franchise Agreement. Each of these documents is attached to this staff report. Committee Action: This item came to Council before staff had the opportunity to convene the Media & Communications Committee, but we have discussed the recommended actions with the Council Members who serve on the Committee. Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave Ki Assistant City Manager Attachments: Resolution 2006 - , including the • Consent to Transfer Agreement (this Agreement includes an Exhibit A [TW Guaranty] and an Exhibit B — the Memorandum of Understanding) • Settlement and Mutual .Release Agreement (Exhibit C to this staff report) Resolution Relating toTdelphia -Time Warner Transfer June 27, 2006 Page 4 RESOLUTION 2006- 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA CONSENTING TO THE TRANSFER OF A FRANCHISE FOR CABLE TELEVISION TO TIME WARNER CABLE WHEREAS, the City Council of the City of Newport Beach, California granted a franchise to a predecessor of Adelphia Cablevision of Newport Beach, LLC ( "Adelphia- Newport"), under the ownership and control of Adelphia Communications Corporation ('Adelphia "), to construct, improve, operate and maintain a cable television system within the City (the "System ") pursuant to a Franchise Agreement dated January 27, 1967 pursuant to Ordinance No. 1197 as amended by Ordinance Nos. 1365, 86 -17 and 91-43 ( "Franchise Agreement ") and Chapter 5.44 of the Municipal Code of Newport Beach ( "Ordinance "). The Franchise Agreement and Ordinance are referred to collectively herein as the "Franchise;" and WHEREAS, pursuant to an Exchange Agreement between Time Warner Cable Inc. ( "Time Warner Cable "), Adelphia and certain related entities, dated as of April 20, 2005, Adelphia- Newport will assign the Franchise to Time Warner NY Cable LLC, ( "TWNY" or "Franchisee "), and TWNY will become an indirect subsidiary of, and will do business as, Time Warner Cable (the "Proposed Transaction"); and WHEREAS, Adelphia- Newport and Time Warner Cable have filed FCC Form 394 (the "Transfer Application ") describing the Proposed Transaction; and WHEREAS, the City and Adelphia- Newport have agreed to settle claims by the City arising from the performance by Adelphia- Newport under the terms and conditions of the Franchise pursuant to a Settlement and Mutual Release Agreement between the parties dated as of June , 2006 (the "Settlement Agreement "); and WHEREAS, under the Federal Cable Act, the City has 120 days after receiving a request for approval of a transfer of a franchise accompanied by an FCC Form 394 to approve or deny the transfer, unless the City and requesting party agree to an extension; and WHEREAS, Adelphia- Newport; Time Warner Cable and the City agreed to various extensions to the City's action on approval or denial of the transfer request; and WHEREAS, on January 24, 2006, the City adopted Resolution No. 2006 -7 rejecting and denying without prejudice the Transfer Application relative to the transfer of the cable television franchise for the reasons stated in Resolution No.2006 -7; and WHEREAS, after extensive negotiations between the parties, the City, Adelphia - Newport, Adelphia, TWNY and Time Warner Cable have agreed in principle to the terms and conditions of a Transfer Agreement (the "Transfer Agreement "), which is attached hereto as Exhibit A; a Memorandum of Understanding, dated as of June 27, 2006 (the "MOU ") attached hereto as Exhibit B; and a Settlement and Mutual Release Agreement, dated as of June 27, 2006 (the "Settlement Agreement ") (collectively, the "Transfer Documents "); and 4 Resolution Relating to A"tlelphia -Time Warner Transfer June 27, 2006 Page 5 WHEREAS, the Transfer Documents establish the terms and conditions under which the Franchisee will accept the Franchise Agreement and the City will approve the transfer of the Franchise Agreement, as described above and in the Transfer Documents; and WHEREAS, for the reasons stated in the staff report submitted to the City Council, the City is willing to approve the Transfer Documents and the transfer of the Franchise Agreement, so long as the rights and interests of the public and the City are protected; and WHEREAS, the City finds that the rights and interests of the public and the City are protected under the terms and conditions of the Transfer Documents. NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City Council does hereby consent, as said consent is contemplated by the provisions of the Franchise, to the Proposed Transaction. Section 2. The City Council does hereby approve the terms and conditions of that certain "Agreement Relating to the Consent of the City of Newport Beach to the Transfer of the Franchise Agreement held by Adelphia Cablevision of Newport County, LLC, to Time Warner NY Cable LLC (the "Transfer Agreement ") attached as Exhibit A. Section 3. The City Council does hereby approve the terms and conditions of the Memorandum of Understanding; dated as of June 27, 2006, attached as Exhibit B. Section 4. The City Council does hereby approve the terms and conditions of the Settlement and Mutual Release Agreement, dated as of June 27, 2006, Section 5. If the conditions set forth in Section 15 of the Transfer Agreement are not satisfied within the times set forth therein, the approvals contained herein shall be voidable at the sole discretion of the City. If the City Council voids the approvals contained herein based upon the failure to timely satisfy the conditions in Section 15 of the Transfer Agreement, the approvals shall be deemed void ab initio and the Transfer Application shall be deemed denied as of January 24, 2006. Section 6. To the extent that this Resolution conflicts with Resolution No. 2006 -7 passed on or about January 24, 2006, this Resolution is effective and supersedes Resolution No. 2006 -7. Section 7. The Mayor, the Mayor Pro Tem, the City Manager, the Assistant City Manager, the City Attorney, and Special Counsel, or their designees, are hereby authorized and instructed to deliver executed copies of the Transfer Documents, and each of them, to the parties thereto, and to perform such other tasks and prepare such other documents as are necessary to implement the Transfer Documents. Section 8. If any one or combination of Adelphia, Adelphia- Newport, TWNY and /or Time Warner Cable does not execute the Transfer Documents within thirty (30) days of the adoption of this Resolution, the City's consent to the transfer of the Franchise, as contemplated hereunder, is hereby deemed to be denied as of January 24, 2006, Section 9. This Resolution shall take effect immediately. Resolution Relating to telphia -Time Warner Transfer June 27, 2006 Page 6 PASSED', ADOPTED, AND APPROVED this 27th day of June, 2006. Don Webb MAYOR OF THE CITY OF NEWPORT BEACH ATTEST: LaVonne Harkless CITY CLERK OF THE CITY OF NEWPORT BEACH APPROVED AS TO FORM: Rutan & Tucker, LLP William M. Marticorena, Special Counsel STATE OF CALIFORNIA ) COUNTY OF ) SS CITY OF NEWPORT BEACH ) L, LaVonne Harkless, City Clerk of the City of Newport Beach, California, DO HEREBY CERTIFY that the forgoing resolution was adopted by the City Council of said City at a regular meeting of said City Council held on the 27`h day of June, 2006, and that it was so adopted by called vote as follows: AYES: NOES` ABSENT: City Clerk 11 0 Resolution Relating to delphia -Time Warner Transfer June 27, 2006 Page 7 EXHIBIT A AGREEMENT RELATING TO THE CONSENT OF THE CITY OF NEWPORT BEACH TO THE TRANSFER OF THE FRANCHISE AGREEMENT HELD BY ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC TO TIME WARNER NY CABLE LLC This Agreement (the `Transfer Agreement ") is entered into this 27`h day of June, 2006, between and among the City of Newport Beach ( "City "), Adelphia Cablevision of Newport Beach, LLC ( "Adelphia- Newport"), Adelphia Communications Corporation ( "Adelphia "),, Time Warner NY Cable LLC ('TWNY" or "Franchisee ") and Time Warner Cable Inc. ('Time Warner Cable "). WHEREAS, the City enacted Chapter 5.44 (the "Ordinance ") for the purpose of establishing a procedure for the granting of franchises for cable television systems; and WHEREAS, Warner Bros. TV Services, Inc. was granted a franchise dated January 27, 1967 by the City pursuant to Ordinance No. 1197, as amended by Ordinance Nos. 1365, 86 -17 and 91 -43, to construct, improve, operate and maintain a cable television system within the City (the "System ") as more particularly defined therein (the "Franchise Agreement "); and WHEREAS. the Franchise Agreement was transferred from Warner Bros. TV Services, Inc. to Pacific Cable Services, Inc. pursuant to an Aareement dated April 22, 1968 and approved by Resolution No. 6759: and WHEREAS. the Franchise Aareement was transferred from Pacific Cable Services. Inc. to Newport Beach Cablevision, Inc. pursuant to an Agreement dated March 10, 1969 and approved by Resolution No. 6945; and WHEREAS, the Franchise Agreement was transferred from Newport Beach Cablevision; Inc; to Teleprompter Corp. pursuant to an Aareement dated March 8, 1971 and approved by Resolution No. 7379; and WHEREAS, the Franchise Agreement was transferred pursuant to the merger of Teleprompter Corp. with a subsidiary of Westinghouse Electric Corp. pursuant to an Agreement approved by Resolution No. 10019; and WHEREAS, the Franchise Agreement was transferred pursuant to the reorganization of Teleprompter Corp. into Group W Cable, Inc. pursuant to an Aareement dated April 12, 1982 and approved by Resolution' No. 82 -51; and WHEREAS, the Franchise Agreement was transferred pursuant to the reorganization of Group W Cable, Inc. into Comcast. Cable Communications, Inc. pursuant to an Agreement dated March 24, 1986 and approved by Resolution No. 86 -22: and WHEREAS, the Franchise Aareement was transferred pursuant to the sale of Group W to Comcast Corp. with Comcast Cablevision of California as operator pursuant to an Agreement dated April 14, 1986 and approved by Resolution No. 86 -25; and Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 8 WHEREAS, the Franchise Agreement was assigned from Comcast Cablevision of California to Comcast Cablevision of Newport Beach, Inc., pursuant to an Agreement dated November 12, 1991 and approved by Ordinance No91 -43; and WHEREAS, the Franchise Agreement was transferred from Comcast Cablevision of Newport Beach, Inc. to Adelphia- Newport, an indirect subsidiary of Adelphia, pursuant to an agreement dated October 31 2000, whereby Comcast Cablevision of Newport Beach, Inc. was converted to a limited liability corporation ( "LLC ") and its LLC interests were acquired by Ft. Myers Acquisition Limited Partnership, a wholly owned indirect subsidiary of Adelphia; and WHEREAS, pursuant to an Asset Purchase Agreement dated April 20, 2005 between Adelphia and TWNY, the System and the Franchise Agreement are to be transferred to TWNY, an indirect subsidiary of Time Warner Cable (the "Proposed Transaction "); and WHEREAS, on June 14, 2005, TWNY and Adelphia - Newport filed FCC Form 394 (the "Application ") describing the Proposed Transaction; and WHEREAS, the City Council of the City has reviewed the Proposed Transaction, as well as all relevant documents, staff reports and recommendations, the operation of the System and compliance with the Franchise Agreement and applicable law; and WHEREAS, the Proposed Transaction with respect to the System cannot go forth without written consent of the City;, and WHEREAS, the City has identified certain compliance issues and Adelphia- Newport has indicated its willingness to resolve these issues and therefore, Adelphia- Newport and the City have entered into a separate Settlement and Mutual Release Agreement dated as of June 27, 2006 (the "Settlement Agreement'), and WHEREAS, based upon the evidence presented to the City Council, it has determined that it would be in the public interest to approve the Proposed Transaction. NOW, THEREFORE, it is agreed by and between the parties as follows: 1. The City Council of the City hereby gives its consent and approval to the Proposed Transaction whereby the Franchise Agreement and the System, including all of the assets thereof, shall be acquired and held by the Franchisee with the performance of all obligations pursuant to the Franchise Agreement, the Ordinance and this Transfer Agreement guaranteed by Time Warner Cable upon closing of the Proposed Transaction. 2. The granting of the consent to the Proposed Transaction, or the consents described in Paragraph 1 above, do not surrender or waive the right of the City to approve any subsequent change not described herein in the ownership of the Franchise Agreement or the ownership or control of the Franchisee, and the Franchisee agrees to comply with all requirements in the Franchise Agreement governing any franchise transfers and any material change, amendment, or modification of the ownership of the Franchisee and/or change in control of the Franchisee. 3. By executing this Transfer Agreement, the City and the Franchisee agree and acknowledge that this Transfer Agreement and consent resolution is not a new franchise 0 ® Resolution Relating` Adelphia -Time Warner Transfer June 27, 2006 Page 9 agreement, the granting of a franchise, or the renewal of the existing franchise, but rather is exclusively an agreement to transfer the Franchise Agreement and this Transfer Agreement neither affects nor prejudices in any way the City's rights nor the Franchisee's rights thereunder, and that compliance with the Franchise Agreement as it exists as of the date of this Transfer Agreement, and assuming the economic impact, or lack thereof, of federal, state and local statutes and administrative regulations existing as of the date of this Transfer Agreement, is neither commercially impracticable as the term is used in Section 625 of the Cable Communications Policy Act of 1984 and /or the Cable Television Consumer Protection and Competition Act of 1992 (collectively the "Cable Act ") nor economically infeasible upon closing of the Proposed Transaction based upon (i) any and all debt service incurred, or to be incurred, by the Franchisee, or any related entity, to directly or indirectly finance the Proposed Transaction or (ii) any return on equity investment made, or to be made, by the Franchisee or any related entity, based upon the equity portion of the financing provided for the Proposed Transaction. 4. The Franchisee agrees and acknowledges that from and after the closing of the Proposed Transaction, it accepts the Franchise Agreement, the Ordinance and this Transfer Agreement, including the Memorandum of Understanding being entered into pursuant to this Transfer Agreement. (collectively, the "Legal Documents "), to be legally sufficient, valid, and binding and agrees to accept and abide by the same without condition or reservation. To the extent that the City or the Franchisee, or any related person or entity, challenges the validity or interpretation, or seeks the enforcement, of said above- listed Legal Documents in the future in any administrative proceeding or court of law, such a challenge or enforcement action shall be subject to all defenses which would have been available to the City or the Franchisee had Adel phia-Newport or Adelphia or any related person or entity, brought said challenge(s) including, but not, limited to, waiver, estoppel, consent, unclean hands and accord and satisfaction, as well as any and all defenses independently available to the City or the Franchisee. 5. Any material violation of this Transfer Agreement shall be deemed to be a violation of the Franchise Agreement, 6. The City hereby gives notice that the Proposed Transaction may create a taxable possessory interest upon which Franchisee may be liable for the payment of certain taxes. The Franchisee acknowledges that this section constitutes valid notice for the purpose of Revenue and Taxation Code Section 107.6. 7. By executing this Transfer Agreement, the Franchisee hereby accepts, from and after the closing of the Proposed Transaction, all the terms and conditions of the City's Charter, the Legal Documents, and any final non - appealable lawful orders or directives of any administrative agency relating to the Franchise Agreement or the System including, but not limited to, the Federal Communications Commission, and the Franchisee represents and warrants that it has examined the requirements of the Charter and the Legal Documents, as well as the applicable federal, state, or local laws or regulations, and agrees to abide by all the terms and conditions thereof. The Franchisee shall, among other things, assume all rate refund obligations and franchise fee liability, both actual and contingent, relating to the System. Resolution Relating toltelphia -Time Warner Transfer June 27, 2006 Page '10 8. Franchisee represents and warrants that the current level of local operations as required by the Legal Documents in the areas of customer service, maintenance, and PEG support shall be maintained or exceeded. 9. This Transfer Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. The parties agree that this Transfer Agreement will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile signature shall be treated in all respects as having the same effect as an original signature. 10. As an express condition of the effectiveness of the approvals contained herein, Time Warner Cable shall guarantee the financial and operational performance of the Franchisee pursuant to the Legal Documents pursuant to the written guaranty attached as Exhibit A (the "Time Warner Guaranty "). 11. Subject to paragraph 17 herein below, this Transfer Agreement shall be deemed effective upon execution by all parties (the "Effective Date ") so long as this Transfer Agreement and the Time Warner Guaranty have been executed and returned to the City, and all payments required by this Transfer Agreement have been made pursuant to paragraph 15 herein below. If these conditions have not been satisfied as set forth herein, the approving resolution shall become null and void, ab initio, and the shall be Proposed Transaction deemed disapproved for good cause as of January 17, 2006. 1.2. Franchisee represents that any letter of credit, insurance and bonding required by the Franchise Agreement and Ordinance have been obtained, and that there will be no gaps in required coverages or liabilities. Franchisee will continue to maintain any letter of credit and bonds that it was required to maintain under the Franchise Agreement notwithstanding the Proposed Transaction. 13. Franchisee agrees to defend, indemnify and hold the City harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorney's fees) arising out of this Transfer Agreement and /or incurred as a result of any representation or warranty made by any party in the Application or in connection with the City's review of the Proposed Transaction which proves to be untrue or inaccurate in any material respect. In the event the City receives any such notice of a loss, claim, damage, liability or expense, the City shall promptly notify the Franchisee which shall, at the sole discretion of the City, assume sole and direct responsibility for defending against any such loss, claim, damage, liability or expense. 14. Any consent given by the City in this Transfer Agreement and in any resolution approving the Proposed Transaction is not an affirmation that Adelphia- Newport or any predecessor in interest is in compliance with, or previously complied with the Franchise Agreement. Nothing herein shall limit or prevent the City from utilizing any material breaches or defaults committed prior to the Effective Date if discovered after the Effective Date in any renewal proceeding or other proceeding relating to the Franchise Agreement if such material breaches or defaults are not cured by Franchisee within a reasonable time after receipt of notice thereof from the City. Any consent is made without prejudice to, or waiver of, the City's right to obtain full remedy for any past non - compliance. Any consent given by the City in this Transfer Agreement and any resolution approving this Transfer Agreement is not a finding that after the Proposed Transaction the Franchisee will be financially, technically or legally qualified, and no 1111 0 .n Resolution Relating to elphia -Time Warner Transfer June 27, 2006 Page 11 inference will be drawn, positively or negatively, as a result of the absence of a finding on this issue. Any consent is therefore made without prejudice to, or waiver of, the City's right to fully investigate and consider the cable operator's financial, technical and legal qualifications and any other relevant considerations during any proceeding including by way of example and not limitation, any future transfer or renewal proceeding. Without limiting the foregoing, any approval of the Proposed Transaction is not a finding, representation, or commitment, expressed or implied, that any statutory renewal rights exist in relation to the Franchise Agreement; that the renewal application filed by any prior franchisee survives the Proposed Transaction; that the Franchise Agreement will be renewed or extended (and approval shall not create an obligation to renew or extend the Franchise Agreement); that the Franchisee is "financially, technically or legally" qualified to hold a renewed franchise; or that any other renewal issue that may arise with respect to Franchisee's past performance or future cable - related needs and interests will be resolved in a manner favorable to the Franchisee. The provisions of this paragraph shall not be modified or limited by the provisions of the Settlement Agreement 15. Within ten (10) business days of the latest to occur of: (i) final approval of the Proposed Transaction by the City Council; (ii) approval of the Settlement Agreement by the Bankruptcy Court presiding over Adelphia's pending bankruptcy cases; or (iii) Adelphia- Newport's receipt of a fully executed copy of the Settlement Agreement, Adel phia-N ewport, or its designee, shall pay to the City the amount of $22,339 (the "Payment "), but, in any event, no more than ninety (90) days from the date of final approval by the City Council, provided Adelphia- Newport has received a fully executed copy of this Transfer Agreement and the Settlement Agreement no later than ten (10) business days prior to the end of such ninety (90) day period. The Payment is paid in, and only in, complete satisfaction of all matters addressed in the Settlement Agreement. The City hereby delegates to the Office of the City Attorney all necessary authority to finalize the Settlement Agreement. In regard to said Payment, the parties expressly agree and covenant as follows: A. The Payment is within the exclusions from the term "franchise fee" set forth in 47 U.S.C. § 542(g)(2); and S. The Payment shall not be deemed to be in the nature of a tax, and shall be in addition to any and all taxes of general applicability or other fees or charges which the Franchisee shall be required to pay to the City or to any state or federal agency or authority; and C. The Franchisee shall not have or make any claim or any deduction or other credit of all or any part of the amount of the Payment to be made pursuant to this Transfer Agreement from or against any City or other governmental taxes of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee; or assessment which is unduly discriminatory against cable operators or cable subscribers or income taxes) or other fees or charges which the Franchisee is required to pay to the City or other governmental agency; and D. The Franchisee shall not apply or seek to apply all or any part of the amount of the Payment to be made pursuant to this Transfer Agreement as a deduction or other credit from or against any City or other government taxes of general applicability (other than isincome taxes) or other fees or charges; and 11 ® Resolution Relating tofelphia -Time Warner Transfer June 27, 2006 Page 12 E. The Franchisee shall not apply or seek to apply all or any part of the amount of any City or other government taxes or other fees or charges of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services) as a deduction or other credit from or against the Payment to be made pursuant to this Transfer Agreement; and F. In regard to the Payment made to the City pursuant to this Transfer Agreement, the Franchisee, or any affiliated party, will not pass through, externalize, or otherwise attempt to add the costs of the Payment to any regulated rate. 16. The City and Franchisee shall enter into a Memorandum of Understanding ( "MOU ") in the form attached hereto as Exhibit B. In the event the Proposed Transaction does not close by December 31, 2006, then the MOU shall be void and of no force or effect, this Transfer Agreement shall also be void ab initio and of no force or effect, and the consent to the Proposed Transactions shall be deemed disapproved for good cause as of January 24, 2006. CITY OF NEWPORT BEACH, a municipal Corporation 0 ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC a Delaware limited liability company By: Ft. Myers Cablevision, LLC., a Delaware limited liability company, Its Sole Member, By: Ft. Myers Acquisition Limited Partnership, a Delaware limited partnership Its Sole Member, By: Olympus Communications, L.P a Delaware limited partnership, Its General Partner, By: ACC Operations, Inc. a Delaware corporation Its Managing General Partner Its: 12 •. 0 E 0 APPROVED AS TO FORM: E Im 0 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 13 ADELPHIA COMMUNICATIONS CORPORATION in Its: TIME WARNER NY CABLE LLC Its: TIME WARNER CABLE INC. In Its: 13 .J Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 14 EXHIBIT A (to Exhibit A) TIME WARNER CABLE INC. GUARANTY GUARANTY, dated as of , made by TIME WARNER CABLE INC., a Delaware corporation ( "Time Warner Cable" or "Guarantor "), in favor of the City of Newport Beach, California ( "Beneficiary").. WHEREAS, in accordance with the relevant provisions of the City of Newport Beach Municipal Code, the Beneficiary, pursuant to action by the City Council on June 27, 2006, has approved the assignment of the Franchise (the "Franchise ") granted by Ordinance No. 1197 (the "Franchise Agreement ") from Adelphia Cablevision of Newport Beach, LLC ("Adelphia-Newport") to Time Warner NY Cable LLC ( "TWNY" or "Transferee "), an indirect subsidiary of Time Warner Cable. WHEREAS, the City's approval was conditioned, among other things, on Guarantor unconditionally guaranteeing the performance of TWNY under the Franchise Agreement, the "Agreement Relating to the Consent of the City of Newport Beach to the Transfer of the Franchise Agreement held by Adelphia Cablevision of Newport Beach, LLC to Time Warner NY Cable LLC" (the "2006 Transfer Agreement "), and the Memorandum of Understanding entered into pursuant to the 2006 Transfer Agreement (collectively, the "Legal Documents "); and WHEREAS, upon closing of the transaction approved by the 2006 Transfer Agreement, Guarantor will have a substantial interest in the cable system and the Franchise, as well as in the management and control of TWNY and in the Legal Documents. 14 9. E • • Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 15 NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce Beneficiary to consent to the transfer of the Franchise Agreement issued by Beneficiary and currently held by Adelphia- Newport to TWNY, in accordance with the Federal Communications Commission Form 394 filed by TWNY, Guarantor agrees as follows: 1. Interpretive Provisions. (a) The words "hereof," "herein" and "hereunder" and words of similar import, when used in this Guaranty, shall refer to this Guaranty as a whole and not.to any particular provision of this Guaranty, and section and paragraph references are to this Guaranty unless otherwise specified. (b) The meanings given to terms defined herein shalt be equally applicable to both the singular and plural forms of such terms. 2. Guaran . (a) From and after the close of the transfer, Guarantor "Guaranteed Obligations "). The Guaranty is an irrevocable, absolute; continuing guarantee of payment and performance, and not a guarantee of collection.. If the Transferee fails to pay any of its monetary Guaranteed Obligations in full when due in accordance with the terms of the Legal Documents, Guarantor will promptly pay the same to Beneficiary or procure payment of same to Beneficiary. Anything herein to the contrary notwithstanding, Guarantor shall be entitled to assert as a defense hereunder any defense that is or would be available to the Transferee under the Legal Documents or otherwise. (b) This Guaranty shall remain in full force and effect for so long as the Transferee, or its successors or assigns, are providing services over the cable system in the City under the Franchise Agreement; provided, however, that this 15 unconditionally and irrevocably guarantees to Beneficiary the timely and complete performance of all obligations of the Transferee under the Legal Documents (the "Guaranteed Obligations "). The Guaranty is an irrevocable, absolute; continuing guarantee of payment and performance, and not a guarantee of collection.. If the Transferee fails to pay any of its monetary Guaranteed Obligations in full when due in accordance with the terms of the Legal Documents, Guarantor will promptly pay the same to Beneficiary or procure payment of same to Beneficiary. Anything herein to the contrary notwithstanding, Guarantor shall be entitled to assert as a defense hereunder any defense that is or would be available to the Transferee under the Legal Documents or otherwise. (b) This Guaranty shall remain in full force and effect for so long as the Transferee, or its successors or assigns, are providing services over the cable system in the City under the Franchise Agreement; provided, however, that this 15 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 16 Guaranty shall terminate upon the earliest to occur of (i) performance in full of all Guaranteed Obligations at a time when no additional Guaranteed Obligations remain outstanding or will accrue to the Transferee under the Franchise Agreement, or (ii) any direct or indirect transfer of the Franchise from Transferee to, or direct or indirect acquisition (whether pursuant to a sale of assets or stock or other equity interests, merger or otherwise) of Transferee or any successor thereto by any other person or entity, a majority of whose equity and voting interests are not beneficially owned and controlled, directly or indirectly, by Guarantor, provided that any such direct or indirect transfer is subject to any terms and conditions as may be imposed by the City in connection with the transfer approval process required by the Legal Documents. Upon termination of this Guaranty in accordance with this Section 2(b), all contingent liability of Guarantor in respect hereof shall cease and Guarantor shall remain liable solely for Guaranteed Obligations accrued prior to the date of such termination. 3. Waiver. Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by Beneficiary upon this Guaranty or acceptance of this Guaranty. Guarantor waives diligence, presentment, protest and demand for payment to the Transferee or Guarantor with respect to the Guaranteed Obligations; provided, however, that Guarantor shall be furnished with a copy of any notice of or relating to default under the Franchise to which the Transferee is entitled or which is served upon the Transferee at the same time such notice is sent to or served upon the Transferee. 4. Representations and Warranties. Each of Guarantor and Beneficiary represents and warrants that: (i) the execution, delivery and performance by it of this 16> • Resolution Relating to Adelphia-Time Warner Transfer June 27, 2006 Page 17 Guaranty is within its corporate, limited liability company or other powers, have been duly authorized by all necessary corporate, limited liability company or other action, and do not contravene any law, order, decree or other governmental restriction binding on or affecting it, and (ii) no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by it of this Guaranty, except as may have been obtained or made, other than, in the case of clauses (i) and (ii), contraventions or lack of authorization, approval, notice, filing or other action that would not, individually or in the aggregate, impair or delay in any material respect such party's ability to perform its obligations hereunder. 5. Bindinq Effect. This Guaranty, when executed and delivered by both Beneficiary and Guarantor, will constitute a valid and legally binding obligation of Guarantor, enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency or other similar laws applicable to creditors' rights generally and by equitable principles (whether enforcement is sought in equity or at law). 6 Notices. All notices, requests, demands, approvals, consents and other communications' hereunder shall be in writing and shall be deemed to have been duly given and made if served by personal delivery upon the party for whom it is intended or delivered by registered or certified mail, return receipt requested, or if sent by telecopier, provided that the telecopy is promptly confirmed by telephone confirmation thereof, to the party at the address set forth below, or such other address as may be designated in I* writing hereafter, in the same manner, by such party: 17 • Resolution Relating tolelphia -Time Warner Transfer June 27, 2006 Page 18 To Guarantor and Transferee: Time Warner Cable Inc. 290 Harbor Drive Stamford, CT 06902 -6732 Telephone: (203) 328 -0631 Telecopy: (203) 328 -4094 Attention: General Counsel To Beneficiary: City of Newport Beach Newport Beach City Hall 3300 Newport Boulevard Newport Beach, California 92663 Telecopy: 949- 644 -3020 Attention: City Manager With Cop Coto:. City of Newport Beach Newport Beach City Hall 3300 Newport Boulevard Newport Beach, California 92663 Telecopy: 949 -644 -3139 Attention City Attorney 7. Integration. This Guaranty represents the agreement of Guarantor with respect to the subject matter hereof and there are no promises or representations by Guarantor or Beneficiary relative to the subject matter hereof other than those expressly set forth herein. 8. Amendments in Writing. None of the terms or provisions of this Guaranty may be waived, amended, supplemented or otherwise modified except by a written instrument executed by Guarantor and Beneficiary, provided that any right, power or privilege of Beneficiary arising under this Guaranty may be waived by Beneficiary in a letter or agreement executed by Beneficiary. IU 11 1] I Resolution Relating to9elphia -Time Warner Transfer June 27, 2006 Page 19 9. Section Headings. The section headings used in this Guaranty are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. 10. No Assignment or Benefit to Third Parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon anyone other than Guarantor and Beneficiary and their respective permitted assigns, any rights or remedies under or by reason of this Guaranty. 11. Expenses'. All costs and expenses incurred in connection with this Guaranty and the transactions contemplated hereby shall be borne by the party incurring such costs and expenses. 12. Counterparts, This Guaranty may be executed by Guarantor and Beneficiary on separate counterparts (including by facsimile transmission); and all of said counterparts taken together shall be deemed to constitute one and the same instrument. 13. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. 11 19 rResolution Relating to 4delphia -Time Warner Transfer June 27, 2006 Page 20 IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly executed and delivered by its duly authorized officer as of the day and year first above written. TIME WARNER CABLE INC. Name: Title: CITY OF NEWPORT BEACH, a municipal corporation A �7 0 0 0 ® Resolution Relating todelphia -Time Warner Transfer June 27, 2006 Page 21 EXHIBIT B (to Exhibit A) MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF NEWPORT BEACH, CALIFORNIA AND TIME WARNER NY CABLE LLC RELATING TO THE TERMS AND CONDITIONS UPON WHICH THE EXISTING CABLE TELEVISION FRANCHISE WILL BE RENEWED This Memorandum of Understanding (the "MOU ") constitutes a valid and binding contractual agreement between the City of Newport Beach, California (the "City "), a California municipal corporation organized and existing under the State of California, on the one hand, and Time Warner NY Cable LLC ( "Franchisee "), on the other, upon acquisition of the franchise currently held by Adelphia Cablevision of Newport Beach, LLC (the "Franchise "), and is dated as of June , 2006. The MOU shall constitute a valid and binding obligation of the parties, enforceable through the laws of contract, and is hereby deemed by the parties to be consistent and enforceable under all relevant provisions of federal and state law. The parties agree and acknowledge that the City has accepted and relied upon the Franchisee's voluntary execution of this MOU in partial consideration of its approval of the Proposed Transactions, as that term is defined in the Transfer Agreement Relating to the Consent of the City of Newport Beach to the Transfer of the Franchise Agreement Held by Adelphia Cablevision of Newport Beach, LLC to Time Warner NY Cable LLC ( "Transfer Agreement "). Section 1. Franchise Term. Franchise term of ten (10) years to terminate December 31, 2016; such term to commence December 31, 2006 unless the parties hereto agree in writing otherwise. Section 2. PEG Support. The Franchisee shall provide funding for public, educational and governmental ( "PEG ") access as follows: 21 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 22 (a) The Franchisee shall pay the City an initial PEG Access grant ( "Initial PEG Access Grant ") by no later than January 31, 2007, the sum of which shall equal the number of Franchisee's cable television subscribers who pay for the basic service tier ('BST') of cable television service residing in the City ( "Subscriber") as of December 31, 2006 multiplied by $28.00. By way of example, if there are 1500 such Subscribers on December 31, 2006, the payment would be $42,000 ($28 x 1500). The obligations incurred pursuant to this Section (a) shall be deemed to be incurred on December 31, 2006, unless the parties hereto agree in writing otherwise. (b) Commencing January 1, 2007, Franchisee shall provide a monthly PEG grant (the "Ongoing PEG Grant ") of $.50 per Subscriber per month. With respect to bulk accounts, Franchisee shall pay such $.50 based on an equivalent subscriber account (total bulk revenues divided by the published BST rate). The Ongoing PEG Grant set forth herein is in lieu of and replaces any PEG Access Support (as such term is defined hereinbelow) obligations in the Franchise or otherwise as of January 1; 2007. (c) Upon request, the City shall provide Franchisee with an annual accounting of the expenditures of both the initial PEG Access Grant and the Ongoing PEG Grant (collectively, the "PEG Grants ") provided for herein to ensure such grants are used for PEG access capital and non- capital purposes, If Franchisee believes the City has failed to demonstrate compliance with the foregoing requirement, Franchisee shall provide the City, within thirty (30) days of receipt of an annual accounting, notice of its objections to the use of the PEG Grants, or either of them. The parties shall thereafter meet at the reasonable request of either party to address the objections identified by Franchisee. If Franchisee reasonably concludes that the City has expended the PEG Grants, or either of them, in a manner inconsistent with the limitations imposed herein, the Franchisee may, after thirty (30) days notice > 22 Resolution Relating tofeiphia -Time Warner Transfer June 27, 2006 Page 23 to the City advise the City of its 'intention to implement a credit on its next regularly scheduled franchise fee payment in the amount of any expenditure inconsistent with PEG access purposes. If the City disputes Franchisee's allegation(s) and the City commences a franchise violation against Franchisee, then Franchisee shall pay the City the disputed amounts and the City shall hold the disputed monies in a separate interest bearing account until a final order is issued by a court of competent jurisdiction and all appeals are exhausted Any monies, including interest on such monies, so held by the City shall be distributed in accordance with such final order (after exhaustion of any and all appeals) or as the City and Franchisee may agree. (d) The Ongoing PEG Grant shall continue throughout the duration of the Franchise unless otherwise directed in writing by the City. Subject to the provisions of paragraph (c) hereof, the Initial PEG Grant and the Ongoing PEG Grant may be used for equipment, facilities, and ongoing staffing and non- capital support for both one -way video PEG access services and two -way interactive PEG access services (collectively, "PEG Access Support"), at the City's sole discretion without offset or recoupment to the franchise fee or any other payment due the City. The Ongoing PEG Grant shall be paid to the City on a quarterly basis. (e) The Franchisee agrees that the commitments indicated in this Section 2 shall not be charged against any franchise fees due the City during the term of the Franchise. The Franchisee agrees to meet all of the commitments of Section 2 through the term of the Franchise. (f) The City specifically reserves the right to grant, at any time, such additional franchises for a cable television system or authorizations which include the right to transmit video programming over closed transmission paths in the City ( "Additional Franchise"), 23 Resolution Relating to• 1phia -Time Warner Transfer June 27, 2006 Page 24 as it deems appropriate, subject to applicable state and federal law, provided that if the City grants an Additional Franchise, then, unless expressly prohibited by law, such Additional Franchise shall, when taken as a whole, contain no more favorable or less burdensome terms and conditions than those contained herein; provided, however; all franchises, including an Additional Franchise, shall be subject to the same material financial obligations (i.e., franchise fee payments and PEG Access Support obligations), Upfront PEG access capital grant obligations will be calculated on a pro -rata basis based on the term of the new franchise compared to that term granted hereunder. Monthly per customer PEG access grant payments will be based on the Franchisee's current obligation at the time that any additional franchise is awarded. 1. In the event the City elects to grant an Additional Franchise as provided in paragraph (f) hereof, the City will notify Franchisee in writing at least sixty (60) days in advance of granting such Additional Franchise, with a copy of the proposed Additional Franchise. 2. Within thirty (30) days after receipt, Franchisee may give written notice to the City that the proposed Additional Franchise is inconsistent with (f) above ( "Notice of Inconsistency"). 3. In the event Franchisee provides the City with a Notice of Inconsistency; the City shall, prior to granting the Additional Franchise, notify Franchisee of the City's determination related to Franchisee's Notice of Inconsistency. 4. If the City determines that the terms of an Additional Franchise are more favorable or less burdensome than those imposed upon Franchisee, then the City shall: (a) Make such modifications as it deems necessary to ensure that the terms of the Additional Franchise are no more favorable or less burdensome than those imposed upon Franchisee; or 24 i.__J 0 11 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 25 (b) Modify the terms and requirements of Franchisee's Franchise as mutually agreed to by the parties. Section 3. Franchise Renewal Agreement. (a) The parties shall negotiate in good faith for the purposes of development and mutual execution of a franchise renewal agreement (the "Renewal Agreement ") including the terms and conditions hereof. The parties shall meet and confer as appropriate and necessary for the purposes of achieving this result. (b) If the parties are not able to mutually agree to a Renewal Agreement containing terms and conditions acceptable to all parties on or before December 31, 2006 (the "Negotiation Period "), the Franchise shall be, as of December 31, 2006, reinstated if expired and extended as modified by the terms and conditions of this MOU for a period specified in Section 1 hereof (the "Franchise Extension'). If the Franchise Extension occurs, the existing terms and conditions of the Franchise shall remain in effect except those terms and conditions of the Franchise shall be deemed amended and superseded to the extent inconsistent with the terms and conditions of this MOU_ In the event of any conflict between the express provisions of the Franchise and this MOU, the MOU shall govern. In the event of any ambiguity regarding the joint interpretation of the Franchise and the MOU, the Franchise shall be interpreted in such a manner as to effectuate the terms and conditions of the MOU to the maximum extent possible. All provisions of the Franchise which are not affected by the MOU shall remain in full force and effect. (c) This MOU shall be effective upon its approval by the City Council; provided, however, if the Proposed Transaction (as that term is defined in the Transfer 25 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 26 Agreement) does not close by December 31, 2006, then this MOU shall be void and of no further force or effect. TIME WARNER NY CABLE LLC M Its: CITY OF NEWPORT BEACH; CALIFORNIA 0 Its: Dated: Dated: 26 0 0 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 27 EXHIBIT B MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF NEWPORT BEACH, CALIFORNIA AND TIME WARNER NY CABLE LLC RELATING TO THE TERMS AND CONDITIONS UPON WHICH THE EXISTING CABLE TELEVISION FRANCHISE WILL BE RENEWED This Memorandum of Understanding (the WOU ") constitutes a valid and binding contractual agreement between the City of Newport Beach, California (the "City "), a California municipal corporation organized and existing under the State of California, on the one hand, and Time Warner NY Cable LLC ( "Franchisee "), on the other, upon acquisition of the franchise currently held by Adelphia Cablevision of Newport Beach, LLC (the "Franchise "), and is dated as of June , 2006. The MOU. shall constitute a valid and binding obligation of the parties, enforceable through the laws of contract, and is hereby deemed by the parties to be consistent and enforceable under all relevant provisions of federal and state law. The parties agree and acknowledge that the City has accepted and relied upon the Franchisee's voluntary execution of this MOU in partial consideration of its approval of the Proposed Transactions, as that term is defined in the Transfer Agreement Relating to the Consent of the City of Newport Beach to the Transfer of the Franchise Agreement Held by Adelphia Cablevision of Newport Beach, LLC to Time Warner NY Cable LLC (`Transfer Agreement'). Section 1. Franchise Term. Franchise term of ten (10) years to terminate December 31, 2016; such term to commence December 31, 2006 unless the parties hereto agree in writing otherwise. Section 2. PEG Support. The Franchisee shall provide funding for public, educational and governmental ( "PEG ") access as follows: 27 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 28 (g) The Franchisee shall pay the City an initial PEG Access grant ( "Initial 9 PEG Access Grant ") by no later than January 31, 2007, the sum of which shall equal the number of Franchisee's cable television subscribers who pay for the basic service tier ( "BST ") of cable television service residing in the City ( "Subscriber ") as of December 31„ 2006 multiplied by $28.00. By way of example, if there are 1500 such Subscribers on December 31, 2006, the payment would be $42,000 ($28 x 1500). The obligations incurred pursuant to this Section (a) shall be deemed to be incurred on December 31, 2006, unless the parties hereto agree in writing otherwise. (h) Commencing January 1, 2007, Franchisee shall provide a monthly PEG grant (the "Ongoing PEG Grant ") of $.50 per Subscriber per month. With respect to bulk accounts, Franchisee shall pay such $.50 based on an equivalent subscriber account (total bulk revenues divided by the published BST rate). The Ongoing PEG Grant set forth herein is in lieu of and replaces any PEG Access Support (as such term is defined hereinbelow) obligations in the Franchise or otherwise as of January 1, 2007. 0) Upon request, the City shall provide Franchisee with an annual accounting of the expenditures of both the Initial PEG Access Grant and the Ongoing PEG Grant (collectively, the "PEG Grants ") provided for herein to ensure such grants are used for PEG access capital and non - capital purposes. If Franchisee believes the City has failed to demonstrate compliance with the foregoing requirement, Franchisee shall provide the City, within thirty (30) days of receipt of an annual accounting, notice of its objections to the use of the PEG Grants, or either of them. The parties shall thereafter meet at the reasonable request of either party to address the objections identified by Franchisee. If Franchisee reasonably concludes that the City has expended the PEG Grants, or either of them, in a manner inconsistent with the limitations imposed herein, the Franchisee may, after thirty (30) days notice 023 • • Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 29 to the City advise the City of its intention to implement a credit on its next regularly scheduled franchise fee payment in the amount of any expenditure inconsistent with PEG access purposes. If the City disputes Franchisee's allegation(s) and the City commences a franchise violation against Franchisee, then Franchisee shall pay the City the disputed amounts and the City shall hold the disputed monies in a separate interest bearing account until a final order is issued by a court of competent jurisdiction and all appeals are exhausted. Any monies, including interest on such monies, so held by the City shall be distributed in accordance with such final order (after exhaustion of any and all appeals) or as the City and Franchisee may agree. 0) The Ongoing PEG Grant shall continue throughout the duration of the Franchise unless otherwise directed in writing by the City. Subject to the provisions of paragraph (c) hereof, the Initial PEG Grant and the Ongoing PEG Grant may be used for equipment, facilities, and ongoing staffing and non- capital support for both one -way video PEG access services and two -way interactive PEG access services (collectively, "PEG Access Support"), at the City's sole discretion without offset or recoupment to the franchise fee or any other payment due the City. The Ongoing PEG Grant shall be paid to the City on a quarterly basis. (k) The Franchisee agrees that the commitments indicated in this Section 2 shall not be charged against any franchise fees due the City during the term of the Franchise. The Franchisee agrees to meet all of the commitments of Section 2 through the term of the Franchise. (1) The City specifically reserves the right to grant, at any time, such additional franchises for a cable television system or authorizations which include the right to transmit video programming over closed transmission paths in the City ( "Additional Franchise "), 29 Resolution Relating to .4delphia -Time Warner Transfer June 27, 2006 Page 30 as it deems appropriate, subject to applicable state and federal law, provided that if the City grants an Additional Franchise, then, unless expressly prohibited by law, such Additional Franchise shall, when taken as a whole, contain no more favorable or less burdensome terms and conditions than those contained herein; provided, however, all franchises, including an Additional Franchise, shall be subject to the same material financial obligations (.e., franchise fee payments and PEG Access Support obligations). Upfront PEG access capital grant obligations will be calculated on a pro -rata basis based on the term of the new franchise compared to that term granted hereunder. Monthly per customer PEG access grant payments will be based on the Franchisee's current obligation at the time that any additional franchise is awarded. 1. In the event the City elects to grant an Additional Franchise as provided in paragraph (f) hereof, the City will notify Franchisee in writing at least sixty (60) days in advance of granting such Additional Franchise, with a copy of the proposed Additional Franchise, 2. Within thirty (30) days after receipt, Franchisee may give written notice to the City that the proposed Additional Franchise is inconsistent with (f) above ( "Notice of Inconsistency') 3. In the event Franchisee provides the City with a Notice of Inconsistency, the City shall, prior to granting the Additional Franchise, notify Franchisee of the City's determination related to Franchisee's Notice of Inconsistency. 4. If the City determines that the terms of an Additional Franchise are more favorable or less burdensome than those imposed upon Franchisee, then the City shall: (a) Make such modifications as it deems necessary to ensure that the terms of the Additional Franchise are no more favorable or less burdensome than those imposed upon Franchisee; or W 0 ® Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 31 (b) Modify the terms and requirements of Franchisee's Franchise as mutually agreed to by the parties. Section 3. Franchise Renewal Agreement. (d) The parties shall negotiate in good faith for the purposes of development and mutual execution of a franchise renewal agreement (the "Renewal Agreement ") including the terms and conditions hereof. The parties shall meet and confer as appropriate and necessary for the purposes of achieving this result. (e) If the parties are not able to mutually agree to a Renewal Agreement containing terms and conditions acceptable to all parties on or before December 31, 2006 (the "Negotiation Period"), the Franchise shall be, as of December 31, 2006, reinstated if expired and extended as modified by the terms and conditions of this MOU for a period specified in Section 1 hereof (the "Franchise Extension "). If the Franchise Extension occurs; the existing terms and conditions of the Franchise shall remain in effect except those terms and conditions of the Franchise shall be deemed amended and superseded to the extent inconsistent with the terms and conditions of this MOU. In the event of any conflict between the express provisions of the Franchise and this MOU, the MOU shall govern. In the event of any ambiguity regarding the joint interpretation of the Franchise and the MOU, the Franchise shall be interpreted in such a manner as to effectuate the terms and conditions of the MOU to the maximum extent possible. All provisions of the Franchise which are not affected by the MOU shall remain in full force and effect. (f) This MOU shall be effective upon its approval by the City Council; provided, however, if the Proposed Transaction (as that term is defined in the Transfer 31 • Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 32 Agreement) does not close by December 31, 2006, then this MOU shall be void and of no further force or effect. TIME WARNER NY CABLE LLC By: CITY OF NEWPORT BEACH, CALIFORNIA Its: Its: Dated: Dated: 32 0 0 • Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 33 EXHIBIT C SETTLEMENT AND MUTUAL RELEASE AGREEMENT This Settlement and Mutual Release Agreement (the "Agreement ") is made and entered into this 27th day of June, 2006; by and between the City of Newport Beach, California ( "City ") and Adelphia Cablevision of Newport Beach, LLC, a Delaware limited liability company ( "Adelphia- Newport")'. A. The City Council of the City of Newport Beach, California granted a franchise to a predecessor of Adelphia- Newport, under the ownership and control of Adelphia Communications Corporation ( "ACC "), to construct, improve, operate and maintain a cable television system within the City (the "System ") pursuant to a Franchise Agreement dated January 27, 1967 and Ordinance No. 1197, as amended by Ordinance Nos. 1365, 86 -17 and 91 -43 ( "Franchise Agreement ") and Chapter 5.44 of the Municipal Code of Newport Beach ( "Ordinance "). The Franchise Agreement and Ordinance are referred to collectively herein as the "Franchise ". B. ACC, Adelphia - Orange and certain of their affiliates (collectively, the "Debtors ") are debtors in possession under title 11 of the United States Code (the "Bankruptcy Code "). The Debtors' chapter 11 cases are being jointly administered under case number 02 -41729 (REG) and are pending in the United States Bankruptcy Court of the Southern District of New York (the "Bankruptcy Court"). C. Pursuant to an Asset Purchase Agreement dated April 20, 2005 between ACC and Time Warner NY Cable LLC ( "TWNY "), the System and the Franchise Agreement are to be transferred to TWNY, an indirect subsidiary of Time Warner Cable (the "Transfer"). D. The Debtors served a Notice of Proposed Retention, Assumption and /or Assignment of Agreements and Proposed Cure Amounts on the City on December 15, 2005 (the "Cure Notice ") and the City filed its objection to such notice on January 13, 2006 (the "Objection "). E. The City has reviewed Adelphia- Newport's compliance with its commitments under the Franchise (the "Compliance Review "). The Compliance Review identified certain areas of alleged non - compliance. F. The City has filed duplicate proofs of claim, Claim Numbers 4003 and 18276, against the Debtors in the Bankruptcy Court in the amount of $7,339.25 each (the "Proofs of Claim "). G. Both parties reserve all rights they may have with respect to the validity and enforceability of the Franchise. H. The City and the Debtors (collectively, the "Parties ") now desire to settle all existing claims related to Adelphia - Newport 's alleged past non - compliance with the 33 • Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 34 Franchise, including, but not limited to, the specific issues identified in the Compliance Review (the "Franchise Review Claims "). The Parties now enter into this Agreement according to the terms set forth below. AGREEMENT 1. Payment to the City. Adelphia- Newport shall pay the City the sum of Twenty Two Thousand Three Hundred Thirty -Nine Dollars ($22,339.00) (the "Settlement Amount ") on or before the date that is ten (10) business days after the Effective Date (as that term is defined in Section 19 below), provided Adel ph ia-Newport has received a fully executed copy of this Agreement and the Transfer Agreement (as defined in Section 3 below). In the event the Settlement Amount is not timely paid to the City, this Agreement shall be null and void. 2. Assumption /Assignment of Franchise The City agrees that timely payment of the Settlement Amount shall be deemed to satisfy any claims the City may have against the Debtors, including, but not limited to, claims for amounts owed pursuant to the Compliance Review, claims asserted in the Objection, amounts asserted as owing in the Proofs of Claim, claims related to and arising under the Franchise, and that any defaults identified by the Compliance Review, asserted in the Objection or arising under the Franchise, and arising as of the date hereof, shall be deemed cured under section 365(b) of the Bankruptcy Code. 3. Transfer. If the City fails to adopt an Agreement approving the Transfer of the Franchise Agreement, in a form corresponding, in all material respects, to the draft Transfer Agreement attached as Exhibit A (the "Transfer Agreement "), neither the City nor Adelphia- Newport is bound by this Agreement and it shall have no operative force and effect. 4. Release by the City. Upon receipt of the Settlement Amount, the City shall fully and forever waive and release all of its claims (as such term is defined in section 101(5) of title 11 of the United States Code) against the Debtors, their affiliates, officers, directors, shareholders, partners, agents, contractors, employees, attorneys, predecessors, sureties, successors and assigns, whether known or unknown, monetary or non - monetary, as they may exist on the date hereof (the "Released Claims "); provided, however, that the releases set forth in this section 4 shall not apply to any claims (a) arising after the date hereof, (b) to pay the Settlement Amount, (c) related to the duty to indemnify the City from third party claims, (d) related to the duty to restore property that is damaged, (e) relating to required activities with respect to the public rights -of -way arising after the date hereof, or (f) for taxes (collectively, the "Preserved Claims "), regardless of when such claims arose, but in no event shall such claims be allowed or paid if contrary to an order of the Bankruptcy Court in the Debtors' chapter 11 cases. The Released Claims include, but are not limited to, claims arising from any and all alleged or actual breaches of the Franchise, the Franchise Review Claims, or claims identified in the Objection and any and all related regulatory costs, including all legal, accounting, technical, and inspection costs arising prior to the date hereof. Upon payment of the Settlement Amount, all Released Claims shall be automatically released, deemed disallowed and expunged, the Objection shall be deemed withdrawn 34 Resolution Relating to Adelphia -Time Warner Transfer June 27; 2006 Page 35 rand the Proofs of Claims shall be deemed disallowed and expunged. The treatment of the Proofs of Claim described herein shall be set forth in a proposed order to be presented to the Bankruptcy Court for approval. 5. Release by the Debtors. Upon release of the City's claims against the Debtors as provided in Section 4 of this Agreement, the Debtors shall fully and forever waive and release all of their claims (as such term is defined in section 101(5) of the Bankruptcy Code) against the City and its representatives, officers, agents, and employees and their predecessors, successors and assigns, which are related to, or arising from the Franchise and the Compliance Review, whether known or unknown, monetary or non- monetary, as they may exist on the date hereof; provided, however, that the releases set forth in this section 5 shall not apply to any Preserved Claims or other claims arising after the date hereof. 6. Effect on Franchise Renewal. This agreement neither expands nor contracts the rights of Adelphia- Newport under 47 U.S.C. § 546(a) -(g): 7. Inapplicability of Civil Code §1542. Each of the Parties to this Agreement acknowledges and agrees that the releases contained in this Agreement are special releases and that § 1542 of the Civil Code of the State of California is not applicable. If and to the extent it should be determined that the releases contained in this Agreement are not special releases, contrary to the Parties' acknowledged intention and agreement, each Party specifically waives the benefit of the provisions of §1542 of the Civil Code of the State of California, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 8. No Admission of Liability. Each Party acknowledges and agrees that this Agreement accomplishes the compromise of disputed claims and is not intended to constitute an admission of liability, wrongdoing or error on the part of any Party or their respective employees, agents, attorneys, representatives, or parent, subsidiary or affiliated companies. Any liability, wrongdoing or error is expressly denied by each Party to this Agreement. 9. Waiver of Unknown Claims. Each Party hereby acknowledges that such Party is aware that such Party may later discover facts in addition to or different from those which such Party now knows or believes to be true with respect to the subject matter of this Agreement and that it is such Party's intention, notwithstanding, to fully, finally and forever, settle and release all of the claims released by this Agreement, known or unknown, suspected or unsuspected, which now exist, may exist or previously existed between the Parties. In furtherance of such intention, the releases given in this Agreement shall be and shall remain in effect as a full and complete release with respect to the claims identified above, notwithstanding the discovery or existence of any such additional or different facts. The Parties further accept and 35 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 36 assume the risk that such facts may turn out to be different from the facts now known or believed to be true by the Parties and agree that the releases given in this Agreement shall remain in all respects effective and shall not be subject to termination or rescission by reason of any such difference in fact. 10, Authority: Subject to paragraph 20 of this Agreement, each person executing this Agreement on behalf of a corporation or other legal entity warrants that he or she holds the position indicated beneath his or her signature and that he or she has been duly authorized by said corporation or other legal entity to execute this Agreement on its behalf. 11. Independent Advice. Each Party to this Agreement acknowledges and agrees that such Party has been represented throughout the negotiation and documentation of this Agreement by attorneys of the Party's choice and has been advised by such attorneys with respect to this Agreement and the effect of the releases given in this Agreement. Each Party to this Agreement further acknowledges and agrees that such Party has read this Agreement, knows the contents of this Agreement and, in executing this Agreement, has relied solely on the Party's own judgment, belief and knowledge, and the advice and recommendations of the Party's attorneys concerning this Agreement, and has not been induced to enter into this Agreement by any representation or statement of any other party not expressly contained in this Agreement. 12. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties to this Agreement and their respective affiliates, agents, representatives, successors and assigns. 13. Integration. This Agreement and the Transfer Agreement set forth the entire agreement between the Parties with respect to the settlement and release of claims specified herein. All agreements, covenants, representations and warranties, express or implied, oral or written, of the Parties with regard to the subject matter addressed herein are contained in this Agreement and the agreements referred to herein, including the Transfer Agreement. In the event of a conflict between the terms of this Agreement and the terms of the Transfer Agreement, the terms of this Agreement shall control. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any Party to any other Party. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to the subject matter hereof are waived, merged in this Agreement and superseded by it. 14, Additional Agreement. In addition to the Agreement to be delivered as provided in this Agreement, each of the Parties agrees to execute and deliver such additional agreements and take such other action as may be reasonably required to carry out the terms of this Agreement. 15. Waiver. No breach of any provision of this Agreement can be waived unless in writing and mutually agreed upon by the affected Parties. Waiver of any one 36 • Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 37 breach of this Agreement shall not be deemed to be a waiver of any other breach of that or any other provision of this Agreement. 16. Modification and Amendment. No modification or amendment of any of the terms or provisions of this Agreement shall be binding upon any Party to this Agreement unless made in writing and signed by all Parties or by a duly authorized representative or agent of such Parties. 17. No Construction. No Party to this Agreement or such Party's attorney shall be deemed to be the drafter of this Agreement for purposes of interpreting or construing any of the provisions of this Agreement. This Agreement shall be interpreted in accordance with the fair meaning of its language and not strictly for or against any of the Parties to this Agreement. 18. Execution in Counterparts. This Agreement may be executed in any number of copies by the Parties to this Agreement on separate counterparts and will become effective upon signature by all Parties upon one or more of such identical counterparts. 19. Effective Date. This Agreement shall be effective upon the latest to occur of: (a) Bankruptcy Court approval of this Agreement; (b) Debtors' receipt of a fully executed copy of this Agreement; and (c) final approval of the Transfer Agreement by the City Council and Mayor of the City ( "Effective Date "). 20. Bankruptcy Court Approval. This Agreement is subject to approval by the Bankruptcy Court presiding over the Debtors' pending bankruptcy cases. Such Bankruptcy Court approval may be obtained pursuant to settlement procedures previously approved by the Bankruptcy Court. The Debtors shall not be obligated to pay the Settlement Amount unless and until the Bankruptcy Court approves this Agreement. In the event that the Bankruptcy Court does not approve this Agreement within forty -five (45) days of final approval by the City Council: (a) nothing contained herein shall be deemed to be a waiver of any claims or an admission of liability by any Party hereto; and (b) this Agreement shall be null and void, and all rights of the Parties prior to this Agreement shall be preserved. 21. Payment. As to any and all payments made to the City pursuant to this Agreement (collectively, the "Payment "), the parties agree as follows: A. The Payment is within the exclusions' from the term "franchise fee" set forth in Section 622(g) (2) of the Cable Act (47 U.S.C. section 542(8) (2)); and B. The Payment shall not be deemed to be in the nature of a tax, and shall be in addition to any and all taxes of general applicability or other fees or charges which Adelphia- Newport shall be required to pay to the City or to any state or federal agency or authority; and 37 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006 Page 38 C. Adel phia-Newport shall not have or make any claim or any deduction or other credit of all or any part of the amount of the Payment to be made pursuant to this Agreement from or against any City or other governmental taxes of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers or income taxes) or other fees or charges which Adel phia- Newport is required to pay to the City or other governmental agency; and D. Adel phia-Newport shall not apply or seek to apply all or any part of the amount of the Payment to be made pursuant to this Agreement as a deduction or other credit from or against any City or other government taxes of general applicability (other than income taxes) or other fees or charges; and E. Adelphia- Newport shall not apply or seek to apply all or any part of the amount of any City or other government taxes or other fees or charges of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services) as a deduction or other credit from or against the Payment to be made pursuant to this Agreement; and F. Adel phia-Newport or any affiliated party will not pass through, externalize, or otherwise attempt to add the costs of the Payment to any regulated rate. Adel phia-Newport shall bear the full economic burden of the Payment. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written. CITY OF NEWPORT BEACH A municipal corporation M Its: APPROVED AS TO FORM: Its: M 0 0 Resolution Relating to Adelphia -Time Warner Transfer June 27, 2006' Page 39 ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC, a Delaware limited liability company, By: Ft. Myers Cablevision, LLC,, a Delaware limited liability company, Its Sole Member, By: Ft. Myers Acquisition Limited Partnership, a Delaware limited partnership, Its Sole Member, By: Olympus Communications, L.P., a Delaware limited partnership, Its General Partner, By: ACC Operations, Inc. a Delaware corporation, Its Managing General Partner, 9 Its: 0 39 (Lid -/too �� to CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No, 17 January 24, 2006 Eif 1 Y \ice " r- TO: HONORABLE MAYOR AND MEMBERS OF THE CITY C 'U JAIv';��+ FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: CABLE TELEVISION: RESOLUTIONS OFFERING REJECTION AND DENIAL WITHOUT PREJUDICE AND CONDITIONAL APPROVAL OF AN APPLICATION TO TRANSFER A CABLE TV FRANCHISE HELD NOW BY ADELPHIA TO EITHER TIME WARNER OR COMCAST ISSUE: • Should the City reject and deny without prejudice the transfer of the Newport Beach cable television franchise now held by Adelphia to Time Warner or Comcast? If not, should the City conditionally approve the transfer to Time Warner or Comcast if certain obligations are met by Adelphia or Time Warner or Comcast? RECOMMENDATION: Adopt the following two resolutions: Resolution 2006 -_ rejecting and denying without prejudice the transfer of the Newport Beach cable television franchise now held by Adelphia to Time Warner; and 2. Resolution 2006 - conditionally approving the transfer of the Newport Beach cable television franchise now held by Adelphia to Time Warner or Comcast. DISCUSSION: Background: Adelphia has held a franchise to operate a cable system in about 60% of the community for the past several years. Prior to Adelphia's arrival, Comcast held the franchise over the same territory. Cox Communications holds a franchise for the roughly 40% of the City not served by Adelphia. The most recent data on how many subscribers each company has in Newport Beach is as follows: • Resolution Relating to Adephia -Time Warner Transfer January 24, 2006 Page 2 E In 2002, Adelphia filed for bankruptcy. In April of 2005, TWI and Comcast agreed to acquire Adelphia for $17.6 billion through a deal with Adelphia's creditors. In June 2005, the FCC received a submittal by TWI and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, TWI, because TWI will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent to approve the Application whereby TWI would takeover the Franchise that Adelphia holds. Legal, Technical and Financial Qualifications To approve the Transfer, the applicant must demonstrate, among other things, that it is a legally, technically, and financially qualified applicant. To properly analyze the financial qualifications, it is important to look at, among other things, the personal wealth of the Proposed Transferee, the economic reasonableness of the transaction to determine whether the transaction will impose unreasonable financial burdens upon the purchaser, the borrowing capacity of the Proposed Transferee, and financial obligations of the Proposed Transferee. This is important because if the applicant is unqualified; it could result in material rate increases beyond that associated with normal operation of a cable system, reduction in service quality based upon cost cutting and expense minimalization, a combination thereof, a premature sale of the system, or financial insolvency. As part of the City's analysis of the proposed Transfer, the City tendered numerous information requests to the parties submitting the Application (the "Applicants ") relating to the legal, technical, and financial qualifications of the Proposed Transferee, and the potential impact on rates and services.. As set forth in detail in the Resolution and the Newport Beach Cable Fact Sheet r Subscriber information •- Totai #ofcable drops in Franchise Area 31,123 13,900 45,023 #of cable TV subscribers 16;978 10,100 27,078 % of cable drops who take cable 55% 73 % 60% - e -- 1999 (Calendar Year) $ 656,558 $ 266,671 $ 923;229 - -2000: $ 722,714 $ 280,602 $ 1,003,316 --2001 $ 705,709 $ 395,824 $ 1,101,533 - -2002 $ 714,762 $ 394,732 $. 1,109,494 --2003 $ 640,330 $ 470,404 $ 1,110,734 --2004 $ 766.,343 $ 494,411 $! 1,260,753 -- 2005 (to date. includes 4th Q'04) $ 411,480 $ 402,014 $ 813,494 In 2002, Adelphia filed for bankruptcy. In April of 2005, TWI and Comcast agreed to acquire Adelphia for $17.6 billion through a deal with Adelphia's creditors. In June 2005, the FCC received a submittal by TWI and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, TWI, because TWI will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent to approve the Application whereby TWI would takeover the Franchise that Adelphia holds. Legal, Technical and Financial Qualifications To approve the Transfer, the applicant must demonstrate, among other things, that it is a legally, technically, and financially qualified applicant. To properly analyze the financial qualifications, it is important to look at, among other things, the personal wealth of the Proposed Transferee, the economic reasonableness of the transaction to determine whether the transaction will impose unreasonable financial burdens upon the purchaser, the borrowing capacity of the Proposed Transferee, and financial obligations of the Proposed Transferee. This is important because if the applicant is unqualified; it could result in material rate increases beyond that associated with normal operation of a cable system, reduction in service quality based upon cost cutting and expense minimalization, a combination thereof, a premature sale of the system, or financial insolvency. As part of the City's analysis of the proposed Transfer, the City tendered numerous information requests to the parties submitting the Application (the "Applicants ") relating to the legal, technical, and financial qualifications of the Proposed Transferee, and the potential impact on rates and services.. As set forth in detail in the Resolution and the 0 • Resolution Relating to Adpihia -Time Warner Transfer January 24, 2006 Page 3 documents which constitute the Administrative Record, which will be available at the City Council meeting and in the City Clerk's Office, the Applicants unreasonably delayed, refused and failed to provide a material portion of the requested information. Specifically, in regards to the transactional documents, the exhibits and schedules to the transactional documents were not provided to the City until November 11, 2005. To obtain these documents, representatives of the City had to spend literally months attempting to negotiate an appropriate Non- Disclosure Agreement which complied with relevant state law and provided for the disclosure of the requested documents upon terms and conditions such that they could be utilized by the City Council in terms of making a final decision.. For months, the Applicants proposed to provide disclosure upon terms and conditions which either failed to comply with relevant state law, provided the documents upon a basis which rendered them unusable in the deliberative process, or hinged their provision upon contortions of the attorney- client privilege which exceeded its legitimate scope and potentially conflicted with public policy. As a result, some of the requested documents, but certainly not all of them, were provided 140 days into the process and without sufficient time to have them fully integrated into the due diligence analysis. Similarly, in regards to financial disclosures, it was not until relatively late into the due diligence process that the Applicants offered to provide a written guaranty of Time Warner Cable, Inc. ( "TWC "). The vast majority of the financial disclosure was not provided at the TWC level but rather at the TWI level, the ultimate parent. At this point in time, no audited financial data has been provided specifically relating to TWC, although revenue and cost allocations are contained in the filings of TWI. The financial condition of TWC is rendered more problematic by the public announcements as to the intended reorganization of TWC through the spin off of the interests held by Comcast therein and the intended IPO relating to that entity. Given the fact that the vast majority of the financial disclosure has been provided at the TWI level and further given the fact that the corporate and financial structure of TWC appears to be a moving target at this point in time, it cannot be safely concluded without additional analysis that TWC constitutes a legally and financially sufficient guarantor within the meaning of the applicable franchise ordinance and franchise agreement. Additionally, the existence of the SEC Settlement and the Deferred Prosecution Agreement, and the circumstances surrounding its entry, create serious doubts and concerns regarding the legal, financial and technical qualifications of the Proposed Transferee, and /or TWUTWC. This is a cause for concern because the alleged commission of illegal acts, including without limitation alleged security fraud by Adelphia caused, or materially contributed to, the Adelphia Bankruptcy and all of the negative impacts upon subscribers and local franchising authorities that flowed therefrom. In addition, the City has recently learned that TWI has recently agreed to a $2.65 Billion settlement of certain private civil claims (In Re AOL Time Warner, Inc. Securities and ERISA Litigation (MDL Docket 1500, 02 -Civ -5575 (SWK)). • Resolution Relating to Adep, ia -Time Warner Transfer January 24, 2006 Page 4 The existence of the Deferred Prosecution Agreement, and the circumstances surrounding its entry, provides a strong and independent basis for rejection of the Transfer absent the provision; which provision has not been provided as of this date, of assurances that the type of acts and omissions which allegedly occurred in relation to the SEC Litigation and the Deferred Prosecution will not repeat on a going forward basis and that the SEC Settlement Agreement and the Deferred Prosecution Agreement themselves, and their implementation, will not materially hinder the operational and financial status of TWI and its subsidiaries. Because the Applicant has failed to demonstrate that it is a legally, technically and financially qualified applicant and for the reasons set forth in the Resolution, counsel for the City, Mr. William M. Marticorena or Rutan and Tucker has advised the City that it should reject and deny the Application without prejudice. The basis for Mr. Marticorena's recommendation is set forth in detail in the attached Resolution, the Administrative Record which will be available for review at the City Council meeting, and the Final Report by Front Range Consulting, Inc. and Ashpaugh & Sculco, CPAs, PLC, regarding the proposed Transfer from Adelphia Communications Corporation and Comcast Cable Communications, Inc. to Time Warner Cable which is attached hereto. In addition to the denial, staff believes that the Council may wish to "conditionally approve" the transfer if certain goals are met. Doing so would clearly show Adelphia and Time Warner the good faith of the City by showing the companies what they need to accomplish with the City before we will approve the transfer. Outright denial is important now to protect our rights, and the conditional approval can be used to encourage Time Warner and Adelphia towards a resolution of our issues. Mr. Marticorena has advised some of his clients to take this course of action. Committee Action: None. Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: — )�� Dave tiff v Assistant City Manager Attachments: Draft Resolutions (Denial and Conditional Approval) Final Report by Front Range Consulting, Inc and Ashpaugh & Sculco, CPAs, PLC. 11 1 J is • Resolution Relating to Ad*ia -Time Warner Transfer January 24, 2006 Page 5 ATTACHMENT A — DENIAL RESOLUTION RESOLUTION NO. 2006 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA REJECTING AND DENYING WITHOUT PREJUDICE A FCC FORM 394 RELATING TO THE TRANSFER OF THE CABLE TELEVISION FRANCHISE, AND /OR CONTROL THEREOF, TO AN ENTITY CONTROLLED BY TIME WARNER INC. OR COMCAST CABLE COMMUNICATIONS, INC. WHEREAS, the City of Newport Beach (the "City ") has received a FCC Form 394 (the "Application ") requesting consent of the City Council to the assignment of the cable television franchise, or control thereof, (the "Franchise ") granted to an entity currently controlled by Adelphia Communications Corporation ( "Adelphia ") [Comcast Cable Communications, Inc. ( "Comcast ")] (the "Franchisee "), to an entity (the "Proposed Transferee ") ultimately controlled by Time Warner Inc. ( "TWI ") or Comcast (the "Transfer "); WHEREAS, City has tendered numerous information requests to the parties submitting the Application (the "Applicants ") relating to, among other things, the legal, technical, and financial qualifications of the Proposed Transferee, and the potential impact on rates and services; and WHEREAS, the Applicants have failed or refused to timely provide requested information in relation to, among other things, the following issues: (1) Complete and accurate copies of the relevant transactional documents, including all exhibits and schedules thereto, which are necessary for the City to exercise its legislative authority in reviewing the Transfer; (2) The provision of financial disclosure relating specifically to that entity or entities which will possess a legally enforceable obligation to comply with franchise obligations; (3) The provision of requested information relating to how the Transfer will potentially impact cable services including, without limitation, how will the operational changes be implemented in Southern California, how call center operations will be handled, if and how local offices will be merged or reorganized; how and when will local construction and equipment needs be financed and prioritized, what will be the rollout schedule for new services, and other issues which relate directly to the day -to -day operations of the Proposed Transferee; • Resolution Relating to Adepita -Time Warner Transfer January 24, 2006 Page 6 (4) The potential impact of the Settlement Agreement between the Securities and Exchange Commission ( "SEC ") and TWI and the Deferred Prosecution Agreement between TWI and the Department of Justice ( "DOX) upon Proposed Transferee's legal technical, and financial qualifications and the continued viability of TWI and /or TWC and their affiliates and subsidiaries; and WHEREAS, the Applicants unreasonably delayed or refused or failed to provide a material portion of the requested information; and WHEREAS, the City has reviewed the FCC Form 394, all supplemental information submitted in relation thereto, as well as information compiled in any compliance audit, and the various Staff reports and related documents; and WHEREAS, the following documents, without limitation, are deemed to be incorporated into the Administrative Record relating hereto: (1) Letter of William M. Marticorena to Sheila R. Willard and Gary Matz dated June 29, 2005; (2) Letter of Sheila R. Willard to William M. Marticorena dated July 12, 2005; (3) Letter of Gary Matz to William M. Marticorena dated July 12, 2005; (4) Letter of William M. Marticorena to Sheila R. Willard and Gary Matz dated July 29, 2005; (5) Letter of Gary Matz to William M. Marticorena dated August 12, 2005; (6) Letter of Gary Matz to William M. Marticorena dated August 19, 2005; (7) Letter of Gary Matz to William M. Marticorena dated August 19, 2005; (8) Letter of William M. Marticorena to Sheila R. Willard and Gary Matz dated August 22, 2005; (9) Letter of William M. Marticorena to Sheila R. Willard and Gary Matz dated August 25, 2005; (10) Letter of Gary Matz to William M. Marticorena dated September 27, 2005; (11) Letter of William M. Marticorena to Gary Matz dated September 27, 2005; (12) Letter of Sheila R. Willard to William M. Marticorena dated September 30, 2005; (13) Letter of Gary R. Matz to William M. Marticorena dated October 7, 2005; 0 11 • Resolution Relating to AdPhia -Time Warner Transfer January 24, 2006 Page 7 (14) Letter of William M. Marticorena to Gary Matz dated October 12, 2005; (15) Letter of Gary R. Matz to William M. Marticorena dated October 28, 2005; (16) Letter of Gary Matz to William M. Marticorena dated November 14, 2005; (17) Letter of Kristy Hennessey to Mary Morales dated November 15, 2005 (PCTA); and (18) Final Report by Front Range Consulting, Inc. and Ashpaugh & Sculco, CPAs, PLC, Regarding the Proposed Transfers of the Cable System from Adelphia Communications Corporation and Comcast Cable Communications, Inc. to Time Warner Cable; and WHEREAS, all of the information provided by the Applicants including, without limitation, the Applications; the transactional documents, numerous SEC disclosure documents, and other information provided to the City and retained in the files of the City, its attorneys and /or consultants, is hereby incorporated by reference into the Administrative Record and is available upon request; and WHEREAS, the Franchise Agreement has expired as of this date without renewal, is extension, or otherwise; and WHEREAS, the expiration of the Franchise Agreement was not a result of the City stalling, frustrating, or otherwise interfering with the orderly process for renewal under Section 546 of the Cable Communications Policy Act of 1984, as amended (the "Cable Act ") to the detriment and prejudice of the Cable Operator; and WHEREAS, the Cable Operator possesses no statutory rights pursuant to Section 537 of the Cable Act, or otherwise, given the expired and extinguished nature of the Franchise Agreement ( Comcast of California 1, Inc., et al. v. City of Walnut Creek, California, Order Denying Plaintiffs' Motion for Preliminary Injunction, p.p.s. 10 -13 (N.D.Cai., Case No. C05 -00824 (WHA) (2005)); and WHEREAS, the City has determined that it would not be in the public interest in the exercise of its legislative discretion to approve the Transfer at this point in time and has determined that it would be in the public interest to disapprove the Transfer without prejudice subject to potential future and further consideration. NOW, THEREFORE, the City Council of the City of Newport Beach does hereby resolve as follows: SECTION 1: The Application for approval of the Transfer is hereby rejected and denied without prejudice for one, or more, or all of the following reasons: • Resolution Relating to Adelpiia -Time Warner Transfer January 24; 2006 Page 8 0 A. Failure to timely provide "additional information required by the terms of the Franchise Agreement or applicable state or local law." B. Failure to timely provide other requested additional information. C. Failure on the part of the Applicant to timely cooperate with Staff, its attorneys and consultants, in performing due diligence relating to the Application, the legal, technical, and financial qualifications of the Proposed Transferee and /or the impact of the transaction upon cable television rates and /or services. D. Failure to demonstrate the legal, technical and financial qualifications of the Transferee. E. Failure to provide a written financial guarantee, acceptable as to form and substance by the City Manager, of the legal entity(s) for which financial disclosure was provided in the Application of and /or additional filings. F. Due to the specific circumstances that exist in this matter, the unconditional grant of a franchise transfer during the "renewal window', or subsequent to the expiration of the franchise, destroy$ or significantly impedes the proper operation of the renewal provisions of Section 626 of the Cable Act and results in the inability of the City to consider, for the purposes of renewal, the operating history of the existing franchisee. The unconditional grant of a franchise transfer at this point in time during the "renewal window ", as established by Section 626 of the Cable Act, circumvents its legislative intent; terminates the ability of the City to consider, as envisioned by the statute, the operating history of the existing franchisee, the existing franchisee's compliance or lack thereof, with applicable law, and the legal, technical and financial qualifications of the existing franchisee, which is the entity which filed the application for renewal pursuant to Section 626 and thus invoked the protections and burdens of Section 626 of the Cable Act. G. The approval of the Transfer would not be in the public interest. H. The expired and extinguished nature of the Franchise Agreement eliminates any right on the part of the Applicants to require the approval of the Transfer pursuant to Section 537 of the Cable Act, or otherwise, and the approval of a transfer of an expired and extinguished franchise at this point in time based upon the facts set forth in the record, without any commitment as to renewal, extension, or otherwise on the part of the Applicants, will create a significant risk to the City based upon the uncertain nature of the Cable Operator's continued occupancy of the public rights -of -way and operation of the cable system. (See, Comcast of California I, Inc. v. City of Walnut Creek, California, Id. at p. 14). SECTION 2. The Recitals above are hereby declared to be true, accurate, and correct. u • Resolution Relating to AdIphia -Time Warner Transfer January 24, 2006 Page 9 SECTION 3. The Proposed Transferee has failed to demonstrate that it is a legally, technically and financially qualified applicant for the following reasons: A. The burden of proof is upon the Proposed Transferee to demonstrate its legal, technical, and financial qualifications to assume control of the Franchise and the Franchisee. B. The Proposed Transferee has failed to present any business plan or other documents indicating its short-term and long -term intent as to how it will operate the cable television system and how it intends to achieve an acceptable and reasonable return of and on its investment. C. The City has attempted to carefully review the financial qualifications of the Proposed Transferee. In order to determine the qualifications of a buyer for a cable television system, or a series of cable television systems, it is necessary to not only review the personal wealth, or lack thereof, of the individual or entity assuming control of the franchise operations, but it is also necessary to evaluate the economic reasonableness of the transaction to determine whether the transaction will impose unreasonable financial burdens upon the purchaser which could result in material rate increases beyond that associated with normal ® operation of a cable system, reduction in service quality based upon cost cutting and expense minimalization, a combination thereof, a premature sale of the system, or financial insolvency. The lack of financial qualifications on the part of the Proposed Transferee can impose significant and serious financial consequences upon the City and its subscribers. The Proposed Transferee has failed to provide the necessary information to perform this critical analysis. D. The individual wealth of a Proposed Transferee, corporate or personal, is only the starting point for the financial qualification analysis. Obviously, if the Proposed Transferee does not possess sufficient cash or borrowing capacity to acquire necessary proceeds to close the transaction, financial unsuitability is established. In addition, if the Proposed Transferee does not possess sufficient, financial resources, by way of cash or reasonable and customary borrowing capacity, to operate the system, meet current and long -term liabilities when due including,, but not limited to, capital expenditure requirements, financial unsuitability is the logical conclusion. However, even in the case of a Proposed Transferee which possesses sufficient cash to close the transaction and operate the system consistent with franchise requirements, there are circumstances under which a buyer or Proposed Transferee may assume such financial obligations that render it financially impossible for that buyer, absent massive influxes of additional capital, to operate that cable television system in a manner which pays current and long -term liabilities, covers debt service, and provides a reasonable and adequate return of and on equity investment. 0 ® Resolution Relating to Adelia -Time Warner Transfer January 24, 2006 Page 10 E. In this particular case, all, or substantially all, of the independently- audited financial information provided by the Applicants in relation to the Transfer has been provided at the TWI level. Information relating to TWC has, in whole or at least material part, constituted allocations of parent -level information without independent verification. In addition, the Applicants have informed the City, as well as the financial community as a whole, that they intend to implement a material restructuring of TWC which will involve, based upon information provided by. the Applicants, the redemption of an eighteen percent (18 %) interest held by Cmcast, through an FCC - mandated trust and the creation of a new publicly- traded company in which TWI will retain an approximate 84% ownership interest and 90% of the voting interest. Little if any information has been provided regarding the financial and legal structure of TWC subsequent to its restructuring and thus significant uncertainty exists as to whether or not any disclosure provided in relation to TWC, independently audited or otherwise, will survive the restructuring. In addition, and without limitation, the Applicants have refused to guaranty post- closing, certain indices of financial health, or lack thereof, including the amount of debt, debt -to- equity ratios, and other important financial indicators and predictors of financial health. Thus, without said guarantees, information provided "as of closing," although relevant, is not necessarily indicative of long -range financial structuring, especially in light of announced changes in the ownership and financial structure of TWC. The Applicants have further failed to provide meaningful assurance to the City that the financial commitments made "as of closing" will carry forward in the future. In fact, the Applicants have even refused to guaranty that the Franchise will end up in the hands of a TWI affiliate. As a practical matter, it is relatively commonplace over the past several years for major cable operators to significantly increase their debt load or otherwise modify "at closing conditions," as times moves on. For example, and without limitation, the amount of debt ultimately incurred by Adelphia, for both legitimate and allegedly illegitimate purposes, significantly exceeded the debt as of the day of closing of the transfer of the cable system to Adelphia. F. The existence of the SEC Settlement and the Deferred Prosecution Agreement, and the circumstances surrounding its entry, create serious doubts and concerns regarding the legal, financial and technical qualifications of the Proposed Transferee, and /or TWI/TWC. First, it must be noted that the alleged commission of illegal acts, including without limitation security fraud by Adelphia cause, or materially contributed to, the Adelphia Bankruptcy and all of the negative impacts upon subscribers and local franchising authorities that flowed therefrom. The existence of the Deferred Prosecution Agreement, and the circumstances surrounding its entry, provides a strong and independent basis for rejection of the Transfer absent the provision, which provision has not been provided as of this date, of assurances that the type of acts and omissions which allegedly occurred in relation to the SEC Litigation and the Deferred Prosecution • Resolution Relating to Ad#hia -Time Warner Transfer January 24, 2006 Page 11 will not repeat on a going forward basis and that the SEC Settlement Agreement and the Deferred Prosecution Agreement themselves, and their implementation, will not materially hinder the operational and financial status of TWI and its subsidiaries. Any allegation that these settlements are irrelevant to this Transfer based upon the fact that entry is between TWI, the parent entity, and the SEC /DOJ is simply wrong for several reasons. First, TWI possesses a controlling interest in both TWC and the Proposed Transferee and thus its operating history, its management philosophy, its compliance, or lack thereof, with applicable law, directly speaks to its going forward control of the Proposed Transferee and this cable franchise and system. Second, the Deferred Prosecution Agreement does directly involve the operation of TWI's cable subsidiary since several of the agreements which have been earmarked for review by the Independent Monitor appointed by the DOJ involve programming agreements relating to the cable division. The fact that these programming agreements have been earmarked for further scrutiny casts doubt upon the operating history of the cable division and directly brings into analytical focus its prior compliance with applicable law and its legal, financial and technical qualifications. At a minimum, it is reasonable to defer approval of the Transfer until the Independent Monitor has concluded its examination as to whether or not TWI's cable division had committed prohibited and /or unlawful acts in relation to ® programming and other contracts directly related to the operation of its cable systems. G. The Applicants have failed to provide evidence denying the existence of the various risks described above or demonstrating the potential benefits to the City and subscribers which might justify the incurrence of the risks described above. H. Given the risks associated with the Transfer, as identified above, it will not be in the public interest for the City to unconditionally approve the Transfer at this time. This disapproval of the Transfer contained herein is without prejudice and may be reconsidered by the City Council when and if the Applicants are able to present evidence demonstrating the Proposed Transferee's technical and financial suitability and the lack of a negative impact on rates and /or services. I. The Applicants have asked the City to determine the legal, technical, and financial qualifications for the Transfer based primarily upon the legal, technical, and financial qualifications of the proposed parent entity. The Applicants have failed to present sufficient information to the City sustaining, if otherwise sustainable, a finding of legal, technical, and financial qualifications other than in relation to TWI and /or TWC. More specifically, and without limitation, absent the financial qualifications of TWI as set forth in the FCC Form 394, the Applicants could make no reasonable argument whatsoever for a finding of financial qualification. Notwithstanding the Applicants' reliance upon the financial disclosure of the parent entity, the City has been informed by authorized attorneys for the Applicants that no transfer agreement can include TWI as an • Resolution Relating to Adepa -Time Wamer Transfer January 24, 2006 Page 12 obligated party thereto. A guaranty from TWC is certainly more substantial but not without its own problems as explained above. It is reasonable to conclude that the proposed parent entity is not willing to commit the assets set forth in the FCC Form 394 to franchise obligations and thus the use of the financial qualifications of the proposed parent entity is inappropriate since those assets are not pledged or otherwise made legally available for the performance of franchise obligations. Thus, based upon the express refusal of the proposed parent entity to commit the financial resources identified in the FCC Form 394, or any specific portion thereof, to performance of franchise obligations, the Proposed Transferee is hereby found not to possess the financial qualifications to control the Franchise. SECTION 4. The Franchisee, which is currently controlled by Adelph'ia, has filed an application for renewal pursuant to Section 626 of the Cable Act. By invoking the benefits and burdens of the renewal provisions of the Cable Act, the Franchisee has initiated a statutorily- created process whereby its operating history throughout the franchise term constitutes the relevant operating history for the purposes of consideration in the renewal process. Both the express language and legislative intent of Section 626 of the Cable Act rewards those cable operators who have, throughout their franchise term, complied with franchise requirements, complied with applicable law, and possess the legal, technical, and financial qualifications for renewal. On the • other hand, the same statutory scheme potentially penalizes those franchisees who fail to meet one or more of these statutory criteria. The unconditional grant of a transfer potentially eliminates the ability of the City to consider the relevant operating history of Adelphia and thus destroys or materially impedes the proper operation of the renewal provisions of the Cable Act. The unconditional approval of the Transfer at this point in time would, in essence, make a mockery of the renewal provisions of Section 626 and encourage the going forward "laundering" of franchises and franchisees which have failed to comply with the renewal criteria set forth in the Cable Act through late -term sales. Although the Franchisee was not required to invoke the benefits and burdens of Section 626 in seeking renewal of its franchise, having made that election, the statutory scheme can only be properly implemented through a completion of that process with the existing Franchisee. SECTION 5. A transfer of the Franchise, transfer of actual or managerial control of the Franchise, and /or transfer of control of the Franchisee, shall be deemed a material breach of the Franchise. SECTION 6. The decision pursuant to this Resolution shall, without further action of the City Council, constitute an act of the Franchising Authority within the meaning of 47 C.F.R. § 76.502 and a "final decision" of the City Council within the meaning of §§ 617(e) of the Cable Television Consumer Protection and Competition Act of 1992, Pub_ L.No, 103 -385, 106 Stat. 1477 (1992). • Resolution Relating to Ac#hia -Time Warner Transfer January 24, 2006 Page 93 0 SECTION 7. This denial, disapproval, and rejection issued pursuant to the authority of this Resolution shall be deemed "without prejudice" to the ability of the Applicant to file another FCC Form 394 relating to the same or a different transaction. However, nothing herein shall limit the authority of the City Council, or their written designee, to reject any subsequent FCC Form 394 based upon the same grounds set forth in the written notice of denial or such other grounds as might exist in relation to said future FCC Form 394. PASSED and ADOPTED by the City Council of the City of Newport Beach, at a regular meeting held on the day of 2006. ATTEST: LaVonne Harkless, City Clerk of the City of Newport Beach 0 Don Webb, Mayor Resolution Relating to Adeflia -Time Warner Transfer January 24, 2006 Page 14 ATTACHMENT B — CONDITIONAL APPROVAL RESOLUTION RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA CONDITIONALLY APPROVING A TRANSFER OF THE CABLE TELEVISION FRANCHISE, AND /OR CONTROL THEREOF, TO AN ENTITY CONTROLLED BY TIME WARNER INC. WHEREAS, the City of Newport Beach (the "City ") has received a FCC Form 394 (the "Application ") requesting consent of the City Council to the assignment of the cable television franchise, or control thereof, (the "Franchise Agreement ") granted to an entity (the "Franchisee ") currently controlled by Adelphia Communications Corporation ( "Adelphia "), to an entity (the "Proposed Transferee ") ultimately controlled by Time Warner Inc. ( "TWI ") (the "Transfer'); WHEREAS, the Franchise Agreement has expired as of this date without renewal, extension, or otherwise; WHEREAS, the expiration of the Franchise Agreement was not a result of the City stalling, frustrating, or otherwise interfering with the orderly process for renewal under Section 546 of the Cable Communications Policy Act of 1984, as amended (the "Cable Act") to the detriment and prejudice of the cable operator; WHEREAS, the cable operator possesses no statutory rights pursuant to Section 537 of the Cable Act, or otherwise, to require the approval of the Transfer (Comcast of California I, Inc., et al. v. City of Walnut Creek, California, Order Denying Plaintiffs' Motion for Preliminary Injunction, pps 10 -13 (N.D. Cal., Case No. C05 -00824 (WHA) (2005)); WHEREAS, the City Council has denied without prejudice the Application for the reasons set forth in Resolution No. (the "Denial Resolution "); WHEREAS, it is the intent of the City Council that the Denial Resolution remain in full force and effect until each and every one of the contingencies set forth as conditions precedent to this Resolution have been satisfied or until this Resolution has lapsed by its own terms; WHEREAS, although the state of the record as of this date does not justify, in the legislative discretion of the City Council, the unconditional approval of the Transfer, the satisfaction of certain mitigating conditions as set forth herein would cause the public interest to be served through the approval of the Transfer; and • C� • Resolution Relating to Acphia -Time Warner Transfer January 24, 2006 Page 15 0 WHEREAS, the City Council has determined that it would be in the public interest in the exercise of its legislative discretion to conditionally approve the Transfer at this point in time if certain terms and conditions, as more specifically set forth herein, are satisfied. NOW, THEREFORE, the City Council of the City of Newport Beach does hereby resolve as follows: Section 1. The Recitals are hereby deemed to be true, correct and accurate. Section 2. The Application is hereby conditionally approved on the date that the City Attorney issues a "Certificate of Closing" as defined in Section 3. Until such time as the Certificate of Closing is issued, or if the Certificate of Closing is never issued prior to the lapsing of this Resolution, the Denial Resolution shall, at all times, remain in full force and effect. Section 3. The City Attorney shall issue a written Certificate of Closing ( "Certificate of Closing ") certifying that each and every of the following conditions have been fully and completely satisfied within five (5) business days of their complete satisfaction: (A) The approval of a franchise renewal agreement by the City Council, its execution by the City Council and the cable operator identified therein, and the delivery of the executed franchise renewal agreement, along with an acceptance thereof', in a form acceptable to the City Attorney, to the City Clerk. (B) The execution and delivery by the cable operator of a Settlement Agreement, approved as to substance and form by the City Manager and the City Attorney, which settles all outstanding monetary disputes relating, directly or indirectly, to the cable system, and the payment of any sums identified as settlement payments therein. (C) The execution and delivery of a financial guaranty, approved as to substance and form by the City Attorney, of Time Warner Inc. ( "TWI ") guarantying the performance of all current and future franchise obligations. (D) The execution and delivery of an operational transition plan, approved as to substance and form by the City Manager and the City Attorney, which contains, among other things, agreed upon customer service standards, employee staffing levels, the number and location of call centers, and other operational requirements which, in the opinion of the City Manager, are necessary to ensure that the quality of cable service does not decline based upon the transfer of the cable system to the Proposed Transferee. 0 • Resolution Relating to Adea -Time Warner Transfer January 24, 2006 Page 16 (E) The execution and delivery of a Change of Control Agreement, approved as to substance and form by the City Manager and the City Attorney, specifying the terms and conditions upon which the Proposed Transferee will accept the documents establishing the legal relationship between the City and the Proposed Transferee in relation to the cable system. (F) The delivery of a written report of the Independent Monitor and /or Independent Examiner, as those two terms are used within the meaning of the Settlement Agreement between the Securities and Exchange Commission and TWI (the "SEC Settlement'), or such other neutral individual or entity unaffiliated with TWI, or any related entity, as approved by the City Manager, stating, in these words or words of equivalent substance, that after a review of the "three cable programming affiliation agreements with related advertising elements," as that phrase is utilized within the meaning of the SEC Settlement, that the cable division of TWI did not commit any violation of law, criminal, civil, or otherwise, in relation to those agreements. Section 4. Upon the issuance of a Certificate of Closing by the City Manager, the approval set forth herein shall become valid and binding. Otherwise, the terms and conditions of the Denial Resolution shall remain in full force and effect. Section 5. Unless a Certificate of Closing is issued by the City Manager within one hundred eighty (180) days of the adoption of this Resolution, the approval set forth herein shall lapse and this Resolution shall be deemed void ab initio without force and effect. PASSED AND ADOPTED by the City Council of the City of Newport Beach at a regular meeting held on the _day of 2006. ATTEST: City Clerk of the City of Newport Beach (42,11,00-;wou) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. S30 u�t3itNlA �0 lL 0V g January 10, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 ordkiff @city.newport- beach.ca.us SUBJECT: REJECTION AND DENIAL WITHOUT PREJUDICE OF AN APPLICATION TO THE TRANSFER ADELPHIA'S FRANCHISE TO EITHER TIME WARNER OR COMCAST ISSUE: Should the City reject and deny without prejudice a Federal Communications Commission ( "FCC ") Form 3.94 ( "Application ") requesting consent of the City Council to the assignment of the cable television franchise, or control thereof, (the "Franchise') granted to an entity currently controlled by Adelphia Communications Corporation ( "Adelphia ") [Comcast Cable Communications, Inc. ( "Comcast ")] (the "Franchisee "), to an unspecified entity ( "Proposed Transferee ") to be ultimately controlled by Time Warner, Inc. ( "TW I ") or Comcast (the "Transfer"). RECOMMENDATION: Adopt the attached Resolution rejecting and denying the Application without prejudice. DISCUSSION: Background: Adelphia has held a franchise to operate a cable system in about 60% of the community for the past several years. Prior to Adelphia's arrival, Comcast held the franchise over the same territory. Cox Communications holds a franchise for the roughly 40% of the City not served by Adelphia. The most recent data on how many subscribers each company has in Newport Beach is as follows:_ 0 0 Resolution Relating to Adelphia -Time Warner Transfer January 10, 2006 Page 2 In 2002, Adelphia filed for bankruptcy. In April of 2005, TWI and Comcast agreed to acquire Adelphia for $17.6 billion through a deal with Adelphia's creditors. In June 2005, the FCC received a submittal by TWI and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, TWI, because TWI will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent to approve the Application whereby TWI would takeover the Franchise that Adelphia holds. Legal, Technical and Financial Qualifications To approve the Transfer, the applicant must demonstrate, among other things, that it is a legally, technically, and financially qualified applicant. To properly analyze the financial qualifications, it is important to look at, among other things, the personal wealth of the Proposed Transferee, the economic reasonableness of the transaction to determine whether the transaction will impose unreasonable financial burdens upon the purchaser, the borrowing capacity of the Proposed Transferee, and financial obligations of the Proposed Transferee. This is important because if the applicant is unqualified, it could result in material rate increases beyond that associated with normal operation of a cable system, reduction in service quality based upon' cost cutting and expense minimalization, a combination thereof, a premature sale of the system, or financial insolvency. As part of the City's analysis of the proposed Transfer, the City tendered numerous information requests to the parties submitting the Application (the "Applicants ") relating to the legal, technical, and financial qualifications of the Proposed Transferee, and the potential impact on rates and services. As set forth in detail in the Resolution and the documents which constitute the Administrative Record, which will be available at the Newport Beach Cable Fact Sheet 00 Subscriber o . Adelphia Total # of cable drops in Franchise Area 31,123 13,900 45,023 # of cable N subscribers 16,978 10,100 27,078 % of cable drops who take cable 55% 73% 60% Franchise Fee Revenue to City Adelphia —1999 (Calendar Year) $ 656,558 $ 266;671 $ 923,229 —2000 $ 722,714 $ 280,602 $ 1,003,316 - -2001 $ 705,709 $ 395,824 $ 1,101,533 —2002 $ 714,762 $ 394,732 $ 1,109,494 —2003 $ 640,330 $ 470;404 $ 1;110,734 —2004 $ 766,343 $ 494,411 $ 1,260,753 — 2005 (to date, includes 4th 0 `04) $ 411,480 $ 402,014 $ 813,494 In 2002, Adelphia filed for bankruptcy. In April of 2005, TWI and Comcast agreed to acquire Adelphia for $17.6 billion through a deal with Adelphia's creditors. In June 2005, the FCC received a submittal by TWI and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, TWI, because TWI will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent to approve the Application whereby TWI would takeover the Franchise that Adelphia holds. Legal, Technical and Financial Qualifications To approve the Transfer, the applicant must demonstrate, among other things, that it is a legally, technically, and financially qualified applicant. To properly analyze the financial qualifications, it is important to look at, among other things, the personal wealth of the Proposed Transferee, the economic reasonableness of the transaction to determine whether the transaction will impose unreasonable financial burdens upon the purchaser, the borrowing capacity of the Proposed Transferee, and financial obligations of the Proposed Transferee. This is important because if the applicant is unqualified, it could result in material rate increases beyond that associated with normal operation of a cable system, reduction in service quality based upon' cost cutting and expense minimalization, a combination thereof, a premature sale of the system, or financial insolvency. As part of the City's analysis of the proposed Transfer, the City tendered numerous information requests to the parties submitting the Application (the "Applicants ") relating to the legal, technical, and financial qualifications of the Proposed Transferee, and the potential impact on rates and services. As set forth in detail in the Resolution and the documents which constitute the Administrative Record, which will be available at the • i Resolution Relating to Adelphia -Time Warner Transfer January 10, 2006 Page 3 City Council meeting, the Applicants unreasonably delayed, refused and failed to provide a material portion of the requested information. Specifically, in regards to the transactional documents, the exhibits and schedules to the transactional documents were not provided to the City until November 11, 2005. To obtain these documents, representatives of the City had to spend literally months attempting to negotiate an appropriate Non- Disclosure Agreement which complied with relevant state law and provided for the disclosure of the requested documents upon terms and conditions such that they could be utilized by the City Council in terms of making a final decision. For months, the Applicants proposed to provide disclosure upon terms and conditions which either failed to comply with relevant state law, provided the documents upon a basis which rendered them unusable in the deliberative process, or hinged their provision upon contortions of the attorney- client privilege which exceeded its legitimate scope and potentially conflicted with public policy. As a result, some of the requested documents, but certainly not all of them, were provided 140 days into the process and without sufficient time to have them fully integrated into the due diligence analysis. Similarly, in regards to financial disclosures, it was not until relatively late into the due diligence process that the Applicants offered to provide a written guaranty of Time Warner Cable, Inc. ( "TWC "). The vast majority of the financial disclosure was not provided at the TWC level but rather at the TWI level, the ultimate parent. At this point in time, no audited financial data has been provided specifically relating to TWC, although revenue and cost allocations are contained in the filings of TWI. The financial condition of TWC is rendered more problematic by the public announcements as to the intended reorganization of TWC through the spin off of the interests held by Comcast therein and the intended IPO relating to that entity. Given the fact that the vast majority of the financial disclosure has been provided at the TWI level and further given the fact that the corporate and financial structure of TWC appears to be a moving target at this point in time, it cannot be safely concluded without additional analysis that TWC constitutes a legally and financially sufficient guarantor within the meaning of the applicable franchise ordinance and franchise agreement. Additionally, the existence of the SEC Settlement and the Deferred Prosecution Agreement, and the circumstances surrounding its entry, create serious doubts and concerns regarding the legal, financial and technical qualifications of the Proposed Transferee, and /or TWI/TWC. This is a cause for concern because the alleged commission of illegal acts, including without limitation alleged security fraud by Adelphia caused, or materially contributed to, the Adelphia Bankruptcy and all of the negative impacts upon subscribers and local franchising authorities that flowed therefrom. In addition, the City has recently learned that TWI has recently agreed to a $2.65 Billion settlement of certain private civil claims (in Re AOL Time Warner, Inc. Securities and ERISA Litigation (MDL Docket 1500, 02 -Civ -5575 (SWK)). • • Resolution Relating to Adelphia -Time Warner Transfer January 10, 2006 Page 4 The existence of the Deferred Prosecution Agreement, and the circumstances surrounding its entry, provides a strong and independent basis for rejection of the Transfer absent the provision, which provision has not been provided as of this date, of assurances that the type of acts and omissions which allegedly occurred in relation to the SEC Litigation and the Deferred Prosecution will not repeat on a going forward basis and that the SEC Settlement Agreement and the Deferred Prosecution Agreement themselves, and their implementation, will not materially hinder the operational and financial status of TWI and its subsidiaries. Because the Applicant has failed to demonstrate that it is a legally, technically and financially qualified applicant and for the reasons set forth in the Resolution, counsel for the City, Mr. William M. Marticorena, has advised the City that it should reject and deny the Application without prejudice. The basis for Mr. Marticorena's recommendation is set forth in detail in the attached Resolution, the Administrative Record which will be available, for review at the City Council meeting, and the Final Report by Front Range Consulting, Inc. and Ashpaugh & Scuico, CPAs, PLC, regarding the proposed Transfer from Adelphia Communications Corporation and Comcast Cable Communications, Inc. to Time Warner Cable which is attached hereto. Committee Action: None. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave K' Assistafit City Manager Attachment: Resolution No. Final Report by Front Range Consulting, Inc. and Ashpaugh & Sculoo, CPAs, PLC. F: \users \cat \sha red\ StaffReports \AdelphiaTransfer01.05.06.doc RESOLUTION NO. 2006- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA REJECTING AND DENYING WITHOUT PREJUDICE A FCC FORM 394 RELATING TO THE TRANSFER- OF THE CABLE TELEVISION FRANCHISE, AND /OR CONTROL THEREOF, TO AN ENTITY CONTROLLED BY TIME WARNER INC. OR COMCAST CABLE COMMUNICATIONS, INC. WHEREAS, the City of Newport Beach (the "City ") has received a FCC Form 394 (the "Application ") requesting consent of the City Council to the assignment of the cable television franchise, or control thereof, (the "Franchise ") granted to an entity currently controlled by Adelphia Communications Corporation ( "Adelphia ") [Comcast Cable Communications, Inc. ( "Comcast")] (the "Franchisee "), to an entity (the "Proposed Transferee ") ultimately controlled by Time Warner Inc. ( "TWI ") or Comcast (the "Transfer"); WHEREAS, City has tendered numerous information requests to the parties submitting the Application (the "Applicants ") relating to, among other things, the legal, technical, and financial qualifications of the Proposed Transferee, and the potential impact on rates and services; and WHEREAS, the Applicants have failed or refused to timely provide requested information in relation to, among other things, the following issues: (1) Complete and accurate copies of the relevant transactional documents, including all exhibits and schedules thereto, which are necessary for the City to exercise its legislative authority in reviewing the Transfer; (2) The provision of financial disclosure relating specifically to that entity or entities which will possess a legally enforceable obligation to comply with franchise obligations; (3) The provision of requested information relating to how the Transfer will potentially impact cable services including, without limitation, how will the operational changes be implemented in Southern California, how call center operations will be handled, if and how local offices will be merged or reorganized, how and when will local construction and equipment needs be financed and prioritized, what will be the rollout schedule for new services, and other issues which relate directly to the day -to -day operations of the Proposed Transferee; (4) The potential impact of the Settlement Agreement between the Securities and Exchange Commission ( "SEC ") and TWI and the Deferred Prosecution Agreement between TWI and the Department of Justice ( "DOJ") upon Proposed Transferee's legal technical, and financial qualifications and the continued viability of TWI and /or TWC and their affiliates and subsidiaries; and • WHEREAS, the Applicants unreasonably delayed or refused or failed to provide a material portion of the requested information; and WHEREAS, the City has reviewed the FCC Form 394, all supplemental information submitted in relation thereto, as well as information compiled in any compliance audit, and the various Staff reports and related documents; and WHEREAS, the following documents, without limitation, are deemed to be incorporated into the Administrative Record relating hereto: (1) Letter of William M. Marticorena to Sheila R. Willard and Gary Matz dated June 29, 2005; (2) Letter of Sheila R. Willard to William M. Marticorena dated July 12, 2005; (3) Letter of Gary Matz to William M. Marticorena dated July 12, 2005; (4) Letter of William M. Marticorena to Sheila R. Willard and Gary Matz dated July 29, 2005; (5) Letter of Gary Matz to William M. Marticorena dated August 12, 2005; (6) Letter of Gary Matz to William M. Marticorena dated August 19, 2005; (7) Letter of Gary Matz to William M. Marticorena dated August 19, 2005; (8) Letter of William M. Marticorena to Sheila R. Willard and Gary Matz dated August 22, 2005; (9) Letter of William M. Marticorena to Sheila R. Willard and Gary Matz dated August 25, 2005; (10) Letter of Gary Matz to William M. Marticorena dated September 27, 2005; (11) Letter of William M. Marticorena to Gary Matz dated September 27, 2005; (12) Letter of Sheila R. Willard to William M. Marticorena dated September 30, 2005; (13) Letter of Gary R. Matz to William M. Marticorena dated October 7, 2005; (14) Letter of William M. Marticorena to Gary Matz dated October 12, 2005; (15) Letter of Gary R..Matz to William M. Marticorena dated October 28, 2005; (16) Letter of Gary Matz to William M. Marticorena dated November 14, 2005; (17) Letter of Kristy Hennessey to Mary Morales dated November 15, 2005 (PCTA); and (18) Final Report by Front Range Consulting, Inc. and Ashpaugh & Sculco, CPAs, PLC, Regarding the Proposed Transfers of the Cable .System from Adelphia -2- /„ 9 • Communications Corporation and Comcast Cable Communications, Inc. to Time Warner Cable; and WHEREAS, all of the information provided by the Applicants including, without limitation, the Applications, the transactional documents, numerous SEC disclosure documents, and other information provided to the City and retained in the files of the City, its attorneys and /or consultants, is hereby incorporated by reference into the Administrative Record and is available upon request; and WHEREAS, the Franchise Agreement has expired as of this date without renewal, extension, or otherwise; and WHEREAS, the expiration of the Franchise Agreement was not a result of the City stalling, frustrating, or otherwise interfering with the orderly process for renewal under Section 546 of the Cable Communications Policy Act of 1984, as amended (the "Cable Act ") to the detriment and prejudice of the Cable Operator; and WHEREAS, the Cable Operator possesses no statutory rights pursuant to Section 537 of the Cable Act, or otherwise, given the expired and extinguished nature of the Franchise Agreement ( Comcast of California /, Inc., et aL v. City of Walnut Creek, California, Order Denying Plaintiffs' Motion for Preliminary Injunction, p.p.s. 10 -13 (N.D.Cal., Case No. C05 -00824 (WHA) (2005)); and WHEREAS, the City has determined that it would not be in the public interest in the exercise of its legislative discretion to approve the Transfer at this point in time and has determined that it would be in the public interest to disapprove the Transfer without prejudice subject to potential future and further consideration. NOW, THEREFORE, the City Council of the City of Newport Beach does hereby resolve as follows: SECTION 1: The Application for approval of the Transfer is hereby rejected and denied without prejudice for one, or more, or all of the following reasons: A. Failure to timely provide "additional information required by the terms of the Franchise Agreement or applicable state or local law." B. Failure to timely provide other requested additional information. C. Failure on the part of the Applicant to timely cooperate with Staff, its attorneys and consultants, in performing due diligence relating to the Application, the legal, technical, and financial qualifications of the Proposed Transferee and /or the impact of the transaction upon cable television rates and /or services.. D. Failure to demonstrate the legal, technical and financial qualifications of the Transferee. E. Failure to provide a written financial guarantee, acceptable as to form and substance by the City Manager, of the legal entity(s) for which financial disclosure was provided in the Application of and /or additional filings. -3- 17 ! • F. Due to the specific circumstances that exist in this matter, the unconditional grant of a franchise, transfer during the "renewal window ", or subsequent to the expiration of the franchise, destroys or significantly impedes the proper operation of the renewal provisions of Section 626 of the Cable Act and results in the inability of the City to consider, for the purposes of renewal, the operating history of the existing franchisee. The unconditional grant of a franchise transfer at this point in time during the "renewal window ", as established by Section 626 of the Cable Act, circumvents its legislative intent, terminates the ability of the City to consider, as envisioned by the statute, the operating history, of the existing franchisee, the existing franchisee's compliance or lack thereof, with applicable law, and the legal, technical and financial qualifications of the existing franchisee, which is the entity which filed the application for renewal pursuant to Section 626 and thus invoked the protections and burdens of Section 626 of the Cable Act. G. The approval of the Transfer would not be in the public interest. H. The expired and extinguished nature of the Franchise Agreement eliminates any right on the part of the Applicants to require the approval of the Transfer pursuant to Section 537 of the Cable Act, or otherwise, and the approval of a transfer of an expired and extinguished franchise at this point in time based upon the facts set forth in the record, without any commitment as to renewal, extension, or otherwise on the part of the Applicants, will create a significant risk to the City based upon the uncertain nature of the Cable Operator's continued occupancy of the public rights -of -way and operation of the cable system. (See; Comcast of California 1; Inc. v, City of Walnut Creek, California, Id. at p. 14). SECTION 2. The Recitals above are hereby declared to be true, accurate, and correct. SECTION 3. The Proposed Transferee has failed to demonstrate that it is a legally, technically and financially qualified applicant for the following reasons: A. The burden of proof is upon the Proposed Transferee to demonstrate its legal, technical, and financial qualifications to assume control of the Franchise and the Franchisee. B. The Proposed Transferee has failed to present any business plan or other documents indicating its short -term and long -term intent as to how it will operate the cable television system and how it intends to achieve an acceptable and reasonable return of and on its investment. C. The City has attempted to carefully review the financial qualifications of the Proposed Transferee. In order to determine the qualifications of a buyer for a cable television system, or a series of cable television systems, it is necessary to not only review the personal wealth, or lack thereof, of the individual or entity assuming control of the franchise operations, but it is also necessary to evaluate the economic reasonableness of the transaction to determine whether the transaction will impose, unreasonable financial burdens upon the purchaser which could result in material rate increases beyond that associated with normal operation of a cable system, reduction in service quality based upon cost cutting 13 a • • and expense minimalization, a combination thereof, a premature sale of the system, or financial insolvency. The lack of financial qualifications on the part of the Proposed Transferee can impose significant and serious financial consequences upon the City and its subscribers. The Proposed Transferee has failed to provide the necessary information to perform this critical analysis. D. The individual wealth of a Proposed Transferee, corporate or personal, is only the starting point for the financial qualification analysis. Obviously, if the Proposed Transferee does not possess sufficient cash or borrowing capacity to acquire necessary proceeds to close the transaction, financial unsuitability is established. In addition, if the Proposed Transferee does not possess sufficient financial resources, by way of cash or reasonable, and customary borrowing capacity, to operate the system, meet current and long -term liabilities when due including, but not limited to, capital expenditure requirements, financial unsuitability is the logical conclusion. However, even in the case of a Proposed Transferee which possesses sufficient cash to close the transaction and operate' the system consistent with franchise requirements, there are circumstances under which a buyer or Proposed Transferee may assume such financial obligations that render it financially impossible for that buyer, absent massive influxes of additional capital, to operate that cable television system in a manner which pays current and long -term liabilities, covers debt service, and provides a reasonable and adequate return of and on equity investment. E. In this particular case, ail, or substantially all, of the independently- audited financial information provided by the Applicants in relation to the Transfer has been provided at the TWI level. Information relating to TWC has, in whole or at least material part, constituted allocations of parent -level information without independent verification. In addition, the Applicants have informed the City, as well as the financial community as a whole, that they intend to implement a material restructuring of TWC which will involve, based upon information provided by the Applicants, the redemption of an eighteen percent (18 %) interest held by Comcast, through an FCC - mandated trust and the creation of a new publicly- traded company in which TWI will retain an approximate 84% ownership interest and 90% of the voting interest. Little if any information has been provided regarding the financial and legal structure of TWC subsequent to its restructuring and thus significant uncertainty exists as to whether or not any disclosure provided in relation to TWC, independently audited or otherwise, will survive the restructuring. In addition, and without limitation, the Applicants have refused to guaranty post- closing, certain indices of financial health, or lack thereof, including the amount of debt, debt -to- equity ratios, and other important financial indicators and predictors of financial health. Thus, without said guarantees, information provided "as of closing," although relevant, is not necessarily indicative of long -range financial structuring, especially in light of announced changes in the ownership and financial structure of TWC. The Applicants have further failed to provide meaningful assurance to the City that the financial commitments made "as of closing" will carry forward in the future. In fact, the Applicants have even refused to guaranty that the Franchise will end up in the hands of a TWI affiliate. As a practical matter, it is relatively commonplace over the past several years for major cable operators to significantly increase -5- 9 0 their debt load or otherwise modify "at closing conditions," as times moves on. For example, and without limitation, the amount of debt ultimately incurred by Adelphia, for both legitimate and allegedly illegitimate purposes, significantly exceeded the debt as of the day of closing of the transfer of the cable system to Adelphia. F. The existence of the SEC Settlement and the Deferred Prosecution Agreement, and the circumstances surrounding its entry, create serious doubts and concerns regarding the legal, financial and technical qualifications of the Proposed Transferee, and /or TWI/TWC. First, it must be noted that the alleged commission of illegal acts, including without limitation security fraud by Adelphia cause, or materially contributed to, the Adelphia Bankruptcy and all of the negative impacts upon subscribers and local franchising authorities that flowed therefrom. The existence of the Deferred Prosecution Agreement, and the circumstances surrounding its entry, provides a strong and independent basis for rejection of the Transfer absent the provision, which provision has not been provided as of this date, of assurances that the type of acts and omissions which allegedly occurred in relation to the SEC Litigation and the Deferred Prosecution will not repeat on a going forward basis and that the SEC Settlement Agreement and the Deferred Prosecution Agreement themselves, and their implementation, will not materially hinder the operational and financial status of TWI and its subsidiaries. Any allegation that these settlements are irrelevant to this Transfer based upon the fact that entry is between TWI, the parent entity, and the SEC /DOJ is simply wrong for several reasons. First, TWI possesses a controlling interest in both TWC and the Proposed Transferee and thus its operating history, its management philosophy, its compliance, or lack thereof, with applicable law, directly speaks to its going forward control of the Proposed Transferee and this cable franchise and system. Second, the Deferred Prosecution Agreement does directly involve the operation of TWI's cable subsidiary since several of the agreements which have been earmarked for review by the Independent Monitor appointed by the DOJ involve programming agreements relating to the cable division. The fact that these programming agreements have been earmarked for further scrutiny casts doubt upon the operating history of the cable division and directly brings into analytical focus its prior compliance with applicable law and its legal, financial and technical qualifications. At a minimum, it is reasonable to defer approval of the Transfer until the Independent Monitor has concluded its examination as to whether or not TWI's cable division had committed prohibited and /or unlawful acts in relation to programming and other contracts directly related to the operation of its cable systems. G. The Applicants have failed to provide evidence denying the existence of the various risks described above or demonstrating the potential benefits to the City and subscribers which might justify the incurrence of the risks described above. H. Given the risks associated with the Transfer, as identified above, it will not be in the public interest for the City to unconditionally approve the Transfer at this time. This disapproval of the Transfer contained herein is without prejudice and may be reconsidered by the City Council when and if the Applicants are able to H. 0 • i present evidence demonstrating the Proposed Transferee's technical and financial suitability and the lack of a negative impact on rates and /or services. I. The Applicants have asked the City to determine the legal, technical, and financial qualifications for the Transfer based primarily upon the legal, technical, and financial qualifications of the proposed parent entity. The Applicants have failed to present sufficient information to the City sustaining, if otherwise sustainable, a finding of legal, technical; and financial qualifications other than in relation to TWI and /or TWC. More specifically, and without limitation, absent the financial qualifications of TWI as set forth in the FCC Form 394, the Applicants could make no reasonable argument whatsoever for a finding of financial qualification. Notwithstanding the Applicants' reliance upon the financial disclosure of the parent entity, the City has been informed by authorized attorneys for the Applicants that no transfer agreement can include TWI as an obligated party thereto. A guaranty from TWC is certainly more substantial but not without its own problems as explained above. It is reasonable to conclude that the proposed parent entity is not willing to commit the assets set forth in the FCC Form 394 to franchise obligations and thus the use of the financial qualifications of the proposed parent entity is inappropriate since those assets are not pledged or otherwise made legally available for the performance of franchise obligations. Thus, based upon the express refusal of the proposed parent entity to commit the financial resources identified in the FCC Form 394, or any specific portion thereof, to performance of franchise obligations, the Proposed Transferee is hereby found not to possess the financial qualifications to control the Franchise. SECTION 4. The Franchisee, which is currently controlled by Adelphia, has filed an application for renewal pursuant to Section 626 of the Cable Act. By invoking the benefits and burdens of the renewal provisions of the Cable Act, the Franchisee has initiated a statutorily- created process whereby its operating history throughout the franchise term constitutes the relevant operating history for the purposes of consideration in the renewal process. Both the express language and legislative intent of Section 626 of the Cable Act rewards those cable operators who have, throughout their franchise term, complied with franchise requirements, complied with applicable law, and possess the legal, technical, and financial qualifications for renewal. On the other hand, the same statutory scheme potentially penalizes those franchisees who fail to meet one or more of these statutory criteria. The unconditional grant of a transfer potentially eliminates the ability of the City to consider the relevant operating history of Adelphia and thus destroys or materially impedes the proper operation of the renewal provisions of the Cable Act. The unconditional approval of the Transfer at this point in time would, in essence, make a mockery of the renewal provisions of Section 626 and encourage the going forward "laundering" of franchises and franchisees which have failed to comply with the renewal criteria set forth in the Cable Act through late -term sales. Although the Franchisee was not required to invoke the benefits and burdens of Section 626 in seeking renewal of its franchise, having made that election, the statutory scheme can only be properly implemented through a completion of that process with the existing Franchisee. 7! • SECTION 5. A transfer of the Franchise, transfer of actual or managerial control of the Franchise, and /or transfer of control of the Franchisee, shall be deemed a material breach of the Franchise. SECTION 6. The decision pursuant to this Resolution shall, without further action of the City Council, constitute an act of the Franchising Authority within the meaning of 47 C.F.R. § 76.502 and a "final decision" of the City Council within the meaning of §§ 617(e) of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L.No. 103 -385, 106 Stat. 1477 (1992). SECTION 7. This denial, disapproval, and rejection issued pursuant to the authority of this Resolution shall be deemed "without prejudice" to the ability of the Applicant to file another FCC Form 394 relating to the same or a different transaction. However, nothing herein shall limit the authority of the City Council, or their written designee, to reject any subsequent FCC Form 394 based upon the same grounds set forth in the written notice of denial or such other grounds as might exist in relation to said future FCC Form 394. PASSED and ADOPTED by the City Council of the City of Newport Beach, at a regular meeting held on the day of 2006. Don Webb, Mayor ATTEST: LaVonne Harkless, City Clerk of the City of Newport Beach F:\users\cat\shared\Resolution\AdelphiaTransfer0l.05.06.doc !2 Final Report C Front Range Consulting, Inc. Ashpaugh & Sculco, CPAs, PLC Regarding the Proposed Transfers of the Cable System From Adelphia Communications Corporation Comcast Cable Communications, Inc. Ire Time Warner Cable December 1. 2005 FRONT RANGE CONSULTING, INC 4152 Bell Mountain Drive Castle Rock, CO 80104 ASHPAUGH & SCULCO, CPAS, PLC 1133 Louisiana Avenue, Suite 106 Winter Park, FL 32789 13 This is the report of Front Range Consulting, Inc. ( "FRC ") and Ashpaugh & Sculco, CPAs, PLC ( "A &S ") (collectively "Consultants ") concerning the proposed transfer of cable franchises of Adelphia Communications Corporation ( "Adelphia ") and Comcast Cable Communications, Inc ( "Comcast") to Time Warner Cable, Inc, ( "Time Warner Cable"): As part of the transfer process, Rutan & Tucker, LLP ( "Rutan ") has retained the Consultants for certain of their clients. The Rutan clients have been notified by Adelphia, Comcast and Time Warner that it has the opportunity to review the transaction and to approve or deny the transfer application. Time Warner Cable submitted the transfer request to the Rutan clients by filing FCC Form 394s by a cover letter dated June 10, 2005.' The Adelphia and Comcast franchises and the assets comprising the cable television systems operating in the designated franchise areas will be transferred to Time Warner NY Cable LLC ( "TW NY "), which will he a wholly owned subsidiary of Time Warner Cable. Time Warner Cable currently is a wholly owned subsidiary of Time Warner, Inc. ( "TWI "). As a component of this transaction, TWI will spin off Time Warner Cable as a separate company, but TWI will maintain ownership of approximately 84 % of the common stock according to the filed 394s. Approximately 16% of the common stock will be owned by creditors of Adelphia. It should be noted that different scenarios of this arrangement have been made public by many interested parties since the filing. It is unknown how or what the ultimate arrangement may be. Under the Cable Act and other applicable law, the Rutan clients are authorized to review the financial, legal, technical and other relevant and appropriate qualifications of the new transferee, TW NY; and the impact the transfer would have on subscriber rates and services, if approved. This report addresses the financial qualifications of TW NY and Time Warner Cable and the impact the proposed transfer would have on subscriber rates and services. I, Report Synopsis The Consultants have not been able to prepare a unique analysis of the financial qualifications of TW NY or Time Warner Cable based on the complete lack of any relevant financial information on either of these two entities, even though relevant financial data was requested. Neither of these two entities currently operates or controls any cable franchises in the magnitude it is proposing after the transfer and therefore neither entity has any historical financial data and historical information that would be relevant 2 Time Warner Cable was asked to supply historical and projected financial data bn both of these new entities and as of the date of this report, neither has supplied any specific and relevant data even though it is clear that Time Warner Cable has sufficient historical to prepare a projection of cash flow for the acquired systems and the new company under this transaction. Without any specific financial data, the Consultants cannot conclude that either TW NY or Time Warner Cable possesses the required financial qualifications to hold the current 'FCC Form 394s were provided to local franchise authorities ( "LFAs ") on or about June 15, 2005. Time Warner Cable has been notified by some ofthe LFAs that the transfer application was incomplete. z'The. transfer will result in Time Warner Cable absorbing properties of Adelphia and Comcast and transferring some Time Warner Cable and Adelphia properties to Comcast. The ultimate makeup of Time Warner Cable and TW NY is not reflected in any of the historical financial data. FRONT RANGE CONSULTING, INC. AND ASHPAUGH & SCULCO, CPAs, PLC Page 2. of i l !y franchise. The Consultants recommend that the Rutan clients should consider one of the three options detailed below with regards to the proposed transfer: • Deny without prejudice the transfer of the current . franchise to TW NY and Time Warner Cable based on the lack of any specific and relevant financial information for a reasonable planning horizon on the new franchisee • Approve the transfer of the current franchises to TW NY and Time Warner Cable with a specific guarantee by TWI of the performance of all of the prior, current and future financial requirements set forth in the franchise agreement; or • Secure an extension of time for the Rutan clients to require TW NY and Time Warner Cable to respond to the financial information requests such that a full and complete analysis of the financial qualifications may be prepared. Time Warner Cable would need to agree to an extension of the 120 -day review period set forth in federal law. II. Summary of the Proposed Transaction The proposed transaction whereby the current franchisee will be transferred to TW NY, a wholly owned subsidiary of Time Warner Cable, is just part of a much larger and complicated transaction between Time Warner, Inc., Comcast and Adelphia. Adelphia filed for bankruptcy protection in June 25, 2002 as a result of significant financial fraud by management of Adelphia. Adelphia has proposed a Plan of Reorganization 3 whereby the assets of Adelphia will be sold to Time Warner Cable and Comcast. Time Warner Cable and Comcast have also agreed that they would swap systems across the country as part of the agreement to purchase the assets of Adelphia. The Adelphia purchase is contingent on approval of the Bankruptcy Court. Included in the purchase agreement with Adelphia, Time Warner Cable has also agreed to purchase all of the systems Comcast was supposed to purchase from Adelphia to the extent Comcast is unable to secure the necessary governmental approvals. The system swap agreements between Time Warner Cable and Comcast appear to be contingent on the approval of the Adelphia/Time Warner Cable /Comcast agreement but Time Warner Cable and Comcast have an option to proceed with the swap agreement notwithstanding the Adelphia agreements not being consummated. The proposed transfers of each of the individual franchises from Adelphia to TW NY, from Adelphia to Comcast and between Time Warner Cable and Comcast are the small individual portions of the much larger deal between Adelphia, Time Warner Cable and Comcast. The proposal is for all of the Adelphia purchases and the system swaps to occur essentially simultaneously after Bankruptcy Court approval. It is unclear when this will occur and if the approvals are not consummated as planned will any or all of the contingent transactions still take place. Adelphia and Comcast need to transfer the current franchise 'to a new holding company, TW NY. TW NY will be the franchisee and a wholly owned subsidiary of Time Warner Cable. It appears that TW NY will only exist on paper and not have any real cable operations. While TWI and Time Warner Cable have many years of experience in cable operations, these 3 The 4" Plan of Reorganization, which is the latest, was filed on November 8, 2005. This plan was amended. by Adelphia on November 15, 2005 and on November 21, 2005. FRONT RANGE CONSULTING, INC. AND ASHPAUGH & SCULCO, CPAs, PLC Page 3 of I I 0.. •; entities have no apparent financial history and will be operating the cable systems without the benefit of the financial backing of TWI, one of the largest corporations in the world. Time Warner Cable will have approximately 15 million subscribers included in many different franchises across the nation. The Consultants conclude that the Rutan clients do not have the ability to assess the financial viability of Time Warner Cable absent the financial data requested. III. Summary of the - Adelphia Plan of Reorganization On June 24, 2005, Adelphia Communications Corporation, et al., filed its Second Amended Joint Plan of Reorganization ( "Plan of Reorganization "). This Plan of Reorganization details the purchase agreements by both Time Warner, Inc. ( "TW Adelphia Acquisition ") and Comcast ( "Comcast Adelphia Acquisition ") whereby Time Warner Cable and Comcast will acquire substantially all ofAdelphia's U.S. assets and assume certain liabilities. Under the purchase agreements, Adelphia will receive approximately $12.7 billion in cash and approximately sixteen percent (16%) of the stock in a new publicly traded entity, Time Warner Cable, Inc. From the information provided, it appears that some of the Rutan clients are part of the Purchase Agreement. Adelphia's Plan of Reorganization is subject to a confirmation process with the bankruptcy Court including a vote by the creditors of Adelphia. The Plan of Reorganization is subject to many conditions. The proposed Disclosure Statement submitted by Adelphia contains the following description of the conditions. The Sale Transaction Closing is subject to the satisfaction or waiver of conditions customary to transactions of this type, including, among others, (1) receipt of applicable regulatory approvals, including the consent of the Federal Communications Commission (the "FCC ") to the transfer of licenses and any applicable approvals of local franchising authorities ( "LEAs ") to the change in ownership of the cable: systems operated by the .Company to the extent not preempted by section 365 of the Bankruptcy Code, (2) expiration or termination of the applicable waiting period under the Hart- Scott- Rodino Antitrust Improvements Act of 1976; as amended (the "HSR Act "), (3) the offer and sale of the shares of Time Warner Cable Class A. Common Stock to be issued in the Sale Transaction having been exempted from registration pursuant to an order of the Bankruptcy Court confirming the :Plan or ano- action .letter li om the staff of the SEC, or a registration statement covering the offer and sale of such shares having . been declared effective, (4) the Time Warner Cable. Class A. Common Stock to be issued in the Sale Transaction being freely tradable and not subject to resale restrictions, except in certain circumstances, (5) approval of the shares of Time Warner Cable Class A Common Stock to be issued in the transaction for listing on the NYSE,. (6) entry by the Bankruptcy Court of a .final order confirming the Plan and, contemporaneously with the Sale Transaction Closing, consummation of the Plan,. (7) satisfactory settlement by ACC of the claims and causes of actions brought by the SEC and the investigations by the DoJ, (8) the absence of any material adverse effect with respect to (a) Time Wamer Cable's business and (b) certain Specified Businesses (without taking into consideration any loss of subscribers by the Company's business (or the results thereof) already reflected in the projections specified in the Purchase Agreements or the related purchase price adjustment), (9) the number of eligible basic subscribers (as the term is used in the Purchase Agreements) served by the Specified Businesses, each as specified in the Purchase Agreements and comprised of cable systems, as of specified date prior to the Sale Transaction Closing: not being below an agreed upon threshold, (10) the absence of an actual change in law, or proposed change in law that has a reasonable possibility of being enacted, that would . adversely affect the tax treatment accorded to the Sale. Transaction with respect to TW NY, (11) a filing of election under Section 754 of the Intemal Revenue Code of FRONT RANGE CONSULTING, INC. AND ASHPAUGH & SCULCO, CPAS, PLC Page 4 of 11 1. 1986, as amended (the "Tax Code "), by each of Century-TCI California Communications, L.P., Pamassos Communications, L.P. and Western NY Cablevision L.P. (collectively, the "Century- TCI / Pamassos J Vs ") and (12) the provision of certain audited and unaudited: financial information by ACC. Subject to the Expanded Transaction, the closing under each Purchase Agreement is also conditioned on a contemporaneous closing under the other Purchase Agreement. (Disclosure. Statement, page 48) The original expectation of the confirmation by the Bankruptcy Court was anticipated at the end of 2005 with a closing in early 2006. The Disclosure Statement now contains an expected closing "during the first half of 2006." In the draft Disclosure Statement release November 21, 2005, Adelphia included a new potential risk condition in its disclosure. Specifically Adelphia states: The potential appointment of a chapter I I trustee pursuant to the request by the ad hoc committee of Arahova noteholders (the " Arahova Noteholder's Committee "), or a request by another party in interest, which may lead to a default under the Extended DIP Facility, may prevent consummation of the Sales Transaction and would give TW NY and Comcast the right to terminate the Purchase Agreements. (Fourth Amended Disclosure Statement released November 21, 2005, page xi) This new disclosure underscores the difficulty presented to local franchising authorities when asked to approve the transfer before the final details of the transaction are known and previously undisclosed, undefined risks are revealed. Further complicating the transaction is the inclusion in the Plan of Reorganization of the "Expanded Transaction Letter Agreement." This agreement allows Time Warner Cable to purchase all of the assets that Comcast was originally slated to purchase to the extent Comcast is unable to secure all of the necessary "FCC or applicable antitrust regulatory approvals." The number of the significant approvals and conditions included within the Plan of Reorganization makes it impossible to foresee what the final transactions will ultimately look like. The Purchase Agreement under which many of the assets will be valued contains the following conditions: The Purchase Agreements include certain customary conditions to the Sale Transaction Closing, including, among other things, the following: • the Bankruptcy Court must enter a confirmation order, which order must be a final order in "full force and effect, and the Plan must be effective in accordance with its terns; • all conditions precedent to consummation of the Plan must be satisfied or waived and the Plan must be consummated substantially contemporaneously with the Sale Transaction Closing; • settlements that impose no liability (including risk of criminal prosecution) on any Specified Business or owner thereof must be reached with the SEC and DoJ; subject to the Bankruptcy Court and District Court orders: approving such settlements becoming final orders,. ACC, TW NY and Comcast have agreed that this condition will be deemed satisfied; • the waiting periods under the HSR Act must expire or be terminated; • no law, order,judgment or decree prohibiting the transactions contemplated by the Purchase Agreements may be in effect; • all necessary approvals that are required pursuant to the.. Purchase Agreements must be obtained by ACC, TW NY and Comcast, as applicable; and FRONT RANGE CONSULTING, INC. AND ASHPAUGH & SCULCO, CPAs, PLC Page 5 of I I A • except in die case of the Expanded Transaction; the closing of the transactions under each of the Purchase Agreements must occur simultaneously. (Disclosure Statement pages 249 -250) IV. Time Warner, Inc. — Comcast, Exchange & Redemption Agreements As part of the agreement by Time Warner and Comcast to jointly acquire the systems from Adelphia, Comcast and Time Warner have entered into five other agreements: • Exchange Agreement; • Time Warner Cable Redemption Agreement; • TWE Redemption Agreement; • Time Warner Cable Failsafe Agreement; and • Time Warner Cable Alternate Failsafe Agreement. Exchange Agreement The Exchange Agreement anticipates Time Warner Cable will transfer cable systems comprising approximately 2.48 million subscribers to Comcast and Comcast will transfer cable systems comprising approximately 2.35 million subscribers to Time Warner Cable. Some of the systems being transferred between Time Warner Cable and Comcast are systems that are currently owned or operated by Adelphia. Therefore, the Exchange Agreement is contingent on the closing of the Adelphia Plan of Reorganization. From the information provided, it appears that some of the Rutan clients are part of the Exchange Agreement. The Disclosure statement lists the conditions of the Time Warner Cable Redemption Agreement. Those being: j Condidons Pursuant to the Exchange Agreement, each party's obligation to consummate the Exchanges is subject to the satisfaction or waiver, where permissible, of anumber of customary closing conditions, including the following conditions: • the Sale Transaction Closing; • the representations and warranties of the other party regarding valid organization and qualification to do business, corporate authority, third party consents mid approvals, absence of conflicts, transactions with affiliates and finder's fees, certain matters with respect to the subsidiaries being transferred in the Exchanges, and absence of undisclosed agreements regarding the Sale Transaction (such representations, the "Exchange Class I Representations ") being true and correct in all material respects, and all other representations and warranties being true and correct (without giving effect to any materiality qualifiers) except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as defined in the Exchange Agreement); • the obligations, agreements and covenants of the other party being performed in all material respects; • no provision of any applicable law or orders of any governmental entity of competent jurisdiction being in effect that has the effect of making the Exchanges illegal or otherwise . restrains or prohibits the consummation of the Exchanges or requires separation or divestiture by such party of a significant portion of the assets to be acquired by such party in the Exchanges or otherwise materially and adversely affects the cable systems to be acquired by such party in the Exchanges, and the absence of litigation by certain governmental entities seeking such an effect; FRONT RANGE CONSULTING, INC. AND ASHPAUGH & SCULCO,. CPAs, PLC Page 6 of I I 0 El • expiration or termination of any waiting period (and any extension thereof) applicable to the consummation of the Exchanges under the HSR Act; • third party consents; including franchise consents, that are required under the Exchange Agreement being obtained; and • delivery by each of Comcast and Time Warner Cable of certain financial information required. under Form 8 -K of the Exchange Act. (Disclosure Statement, page 262) Additionally, the Exchange Agreement requires that Comcast secure consent to transfer from at least 90% of the Comcast systems being transferred to Time Warner Cable. This requirement is set forth in Section 7.2 0) of the Exchange Agreement which states: 0) Franchise Required Consents. The aggregate number of Individual Subscribers sewed by the Comcast Transferred Systems in the Service Areas that are, as of the Closing, Transferable Service Areas shall beat least 90% of the Individual Subscribers served by the Comcast Transferred Systems at such time (the "Comcast Required Threshold "); provided that if any portion of the Comcast Transferred Systems containing active headends is not within such Transferable Service Areas as of the Closing, then any other portion of the Comcast Transferred Systems served by such headends shall . be deemed not to be included in such Transferable Service Areas. Time Warner Cable Redemption Agreement The Time Warner Cable Redemption Agreement essentially transfers cable systems comprising 587,000 subscribers of Time Warner Cable and $1.9 billion in cash to Comcast in return for Comcast's 17.9% interest in Time Warner Cable Class A Common Stock. The legal entity that will hold the cable systems comprising the 587,000 subscribers will be a Comcast entity called Cable Holdco II. TWE Redemption Agreement The TWE Redemption Agreement is similar to the Time Warner Cable Redemption Agreement in that Time Warner is redeeming the 4.7 % interest Comcast currently has in Time Warner Entertainment Company, L.P. ( "TWE ") by transferring cable systems comprising approximately 168,000 subscribers and cash in the amount of $133 million. The conditions as detailed above for the Time Warner Cable Redemption Agreement are similar in the TWE Redemption Agreement. Time Warner Cable Failsafe and Alternate Failsafe Agreements Time Warner and Comcast have provided alternate agreements whereby Time Warner can re- acquire 23.8% of the 16.7% of the Class A Common Stock of Time Warner Cable owned by Comcast. Either agreement allows Time Warner Cable to transfer cable systems with approximately 148,000 subscribers and a cash payment of $422 million to Comcast. If both the Time Warner Cable and the TWE Redemption Agreements are terminated; the Time Warner Cable Failsafe Agreement would occur. If only the Time Warner Cable Redemption Agreement is terminated, then the Alternate Failsafe Agreement would occur. Because Time Warner Cable and Comcast have not provided the schedules listing the systems that will be transferred under either of these two agreements, the Consultants cannot ascertain the impact. V. Summary of the FCC Form 394 Filed Time Warner Cable delivered to the Rutan clients letters dated June 10, 2005 transmitting the required FCC Form 394. FCC Form 394 is a five (5) page form providing an "Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television FRONT RANGE CONSULTING; INC. AND ASHPAUGH &rSCULCO, CPAs, PLC Page 7 of I 1 �ti Franchise." The form is general in nature allowing for a general description of the proposed transaction with a detailed description and other materials to be provided in exhibits attached to the Form 394. Time Warner Cable attached additional pages of printed materials and approximately 50 megabytes of computer generated exhibits. The computer generated exhibits contain many of the purchase, exchange and redemption agreements underlying the Adelphia — Time Warner — Comcast transaction. (While the documents were attached Comcast did not attach the exhibits and schedules to those agreements). Time Warner Cable also included publicly available financial data on TWI and Comcast (2004 10K, 1s` Q 2005 IOQ and selected 8Ks). For a variety of reasons, certain of the Rutan clients have concluded that the Form 394s were incomplete, and informed Time Warner Cable, Adelphia and Comcast of this fact. Time Warner Cable responded disputing the incompleteness of the filing and proving very limited additional information. The requested financial support was not provided. VI. Requests for Information Time Warner Cable was requested to provide additional information with regards to the proposed transaction. The first request was sent on June 29, 2005 from Rutan to both Comcast and Time Warner. Time Warner Cable and Comcast responded with a letter dated July 12, 2005. Rutan also delivered addition requests for information subsequent to June 29, 2005. Time Warner Cable was requested to provide specific information regarding the "Opinions of the Financial Advisors; date April 19, 2005" in request H (6) in the June 29, 2005 request. Time Warner Cable responded in the letter of July 12 by stating: These opinions are not publicly available, and TWC's agreements with its financial advisors prohibit TWC from sharing the opinions with third parties without first obtaining the consent of those financial. advisors. TWC will seek to obtain such consents and; if such consents are obtained, will make the opinions available for your review at its offices, . pursuant to a signed confidentiality agreement. The November 21„ 2005 Disclosure Statement prepared by Adelphia clearly identifies the steps taken by TWC's M &A Advisors in presenting the valuation of the 16% equity being transferred to the Adelphia creditors. It is clear from that review, that the M &A Advisors prepared a discounted cash flow analysis of the Pro Forma TWC. This effort appears to have been completed by the M &A Advisors in April 2005. (See attachment A). It is precisely this estimated. Pro Forma TWC financial information that was sought by the Consultants.. Instead of providing this information for review, TWC prevented Rutan's clients the opportunity to evaluate the financial picture of TWC after this proposed acquisition and exchange of cable systems throughout the country. Time Warner Cable submitted with the FCC Form 344 a copy of the TWI SEC Form 10 -K for 2004 and the TWI SEC Form 10 -Q for the first quarter of 2005. Time Warner Cable has provided no financial projections of any sort with the filing or in response to either of these two requests for information. However, the information disclosed' in the CD provided with the Form 394 indicated that Time Warner Cable has presented a projected cash flow analysis to its investors and credit reporting agencies. Time Warner Cable has been unwilling to provide any projected information with regards to the "new" Time Warner Cable, Inc.. after the proposed acquisitions and transfers. FRONT RANGE CONSULTING, INC. Am ASHPAUGH & SCULCO, CPAS, PLC Page 8 of 1. t �i 0 9 Rutan has also provided the Consultants with copies of documents redacted from the purchase and exchange agreements.° While these documents are subject to a specific confidentiality and non- disclosure agreement, the confidential information provided does not come close to allowing the Consultants to make any reasonable projection of the anticipated earnings, balance sheet and cash flow positions of Time Warner Cable, Inc. after the proposed transactions. From the confidential information provided, the Consultants seriously question whether the Time Warner M &A Advisors could have made any projection over planning horizon based on this limited information. In summary, Time Warner Cable has not provided any significantly detailed financial projections or historical financial data for TW NY after the proposed transaction or for Time Warner Cable as the company will be after the transactions yet it is apparent that Time Warner Cable has provided such information to its Board of Directors and investors.5 VII. Financial Analysis A financial analysis of any proposed transfer or assignment is critical in order to assure the franchising authority that the new owner /operator of'the franchise is financially qualified to take over the franchise operation from the previous owner. The financial qualifications of the current franchisee were a significant consideration in the awarding of the franchise. The FCC Form 394 is supposed to facilitate this review by requiring the proposed transferee to provide historical financial information sufficient to prove that the transferee will be able to meet its financial obligations. The proposed transfer contemplated by this FCC Form 394 is extremely complicated and subject to a number of complex transaction all interdependent on each other. For example, the proposed Time Warner Cable Redemption Agreement is conditioned on the approval of the Adelphia Plan of Reorganization; yet the proposed Plan of Reorganization was not filed nor was it available when the FCC Form 394 was sent to the City. In addition, the submitted FCC Form 394 did little to explain the precise make -up of the new entity, TW NY or Time Warner Cable and the financial qualifications.6 Further, Adelphia has filed two significant amendments to the Plan of Reorganization since the Form 394 was filed. Time Warner Cable has refused to provide any financial forecasts or historical financial data. Based on the responses to the requests for information and the listing, of the excluded exhibits to the Time Warner Cable Redemption Agreement; the Consultants believe that Time Warner Cable could have provided at least some historical and budgeted financial data. (See Section IV above). Time Warner Cable has provided a summarized financial pro- forma statement in the Fourth Disclosure Statement but that is only for the year 2004 and does not project any costs associated with franchise commitments over a reasonable planning horizon. ° The Consultants were provided informadonbate stamped TW 00001 through TW 00.1.35. s The Consultants are aware that in other reviews of the Time Warner Form 394 related to this transaction with Adelphia, that Time Warner has refused to provide a ten year projection of an income statement, balance sheet and cash flow statement for the new Time Warner Cable, Inc. 6. It has been asserted that the filed FCC Form 394 was incomplete and therefore the federal 120-day review period has not yet. begun. This report does, not in any way waive that position but attempts to review the financial qualifications of based on the limited data submitted. FRONT. RANGE CONSULTING, INC. nNo ASPIPAUGH & SCULCO, CPAs, PLC Page 9 of 11 Interestingly enough, Time Warner Cable is projecting that its percentage of debt will increase from 29.9% to 43% as a result of this transaction.7 Increasing the debt leverage of a company increase the risk of the entity as it increases the level of fixed costs that must be recovered by the entity. Analysis Time Warner Cable has provided historical financial data on Time Warner Cable as a wholly -owned subsidiary of TWI in its 2004 Form 10 -K which provides little or no relevant information on the financial qualification the new entity of TW NY or of the separate company of Time Warner Cable from this transaction. Time Warner Cable has refused to provide the operating and capital budgets for 2006 of the entities. Time Warner Cable was also asked to provide all analyses of the viability of this transaction by both internal and external organizations. It is very common for companies to have independent analyses of a large transaction of this type for presentation to its Board of Directors in considering the approval of the transaction. These analyses will typically project income statements and cash flow projection over a reasonable planning horizon showing the effects of the transaction on the current organization. Time Warner Cable refused to provide this type of information. This refused information would again be helpful in assessing the financial viability of the proposed franchisee and the financial ramifications of the proposed transaction. It is clear that these projections should exist. The Consultants believe it to be unreasonable for Time Warner Cable to suggest that the Historical financial operation is sufficient given that a material portion of Time Warner Cable's existing cable systems will be transferred to Comcast, a material portion of Comcast's cable systems will be transferred to Time Warner Cable and the Adelphia systems will need to be absorbed into Time Warner Cable. Furthermore, while Time Warner Cable is suggesting its overall financial structure is sufficient to prove its "financial qualifications," it is appears to be unwilling to provide a financial guarantee such as a bond or a line of credit. Essentially Time Warner Cable is asking that the LFAs "trust us" with regards to the financial qualifications. Time Warner Cable continues to suggest throughout its responses to data requests that it has sufficient financial experience and financial strength to operate all of its franchises! However, the LFAs have been asked to approve a transfer of the franchise to a new entity which has no separate financial history and an undefined management structure. In summary, the Consultants have been prevented from preparing any financial analysis of either TW NY or Time Warner Cable because of Time Warner Cable's refusal to provide underlying financial projections, analyses and assumptions. The Consultants believe that there could be significant financial risk with regards to TW NY and Time Warner Cable because these entities will be operating a new entity without the financial backing ofTWI. Rate Impacts ' See page 290 of the 4" Plan of Reorganization filed on November 8, 2005 and amended by Adelphia on November 15,;2005. 8 See response to H (6) discussed above. FRONT RANGE CONSULTING, INC. avo ASHPAUGH & SCULCO, CPAS, PLC Page 10 of I I 0 The Consultants cannot conclude, based on the limited financial data provide, that subscriber rates will not be adversely impacted by this transaction. For example, in the regulated equipment and installation rates, Time Warner Cable has used national and regional "equipment averaging" methodology. To the extent Time Warner Cable will be adding systems in high cost areas or that require significant financial investment in new technologies and exchanging systems in low cost areas, the equipment rates are likely to rise. Asset costs for the systems being acquired are also significant in determining the regulated equipment rates. To the extent Time Warner Cable is acquiring systems with higher then average asset values for converters (either based on the age of the equipment or valuation changes), service vehicles, or maintenance facilities, equipment rates and installation charges will also likely rise. VIH. Recommendations The Consultants recommend that the Rutan clients consider one of the following three alternatives: A. Deny without prejudice the transfer of the current franchise to TW NY and Time Warner Cable based on the lack of any specific and relevant financial information for a reasonable planning horizon on the new franchisee; B. Approve the transfer of the current franchise to TW NY and Time Warner Cable with a specific guarantee by TWI of the performance of all of the prior, current and future financial requirements set forth in the franchise agreement; or C. Secure an extension of time for the LFA to require TW NY and Time Warner Cable to respond to the financial information requests such that a full and complete analysis of the financial qualifications may be prepared. Time Warner Cable would need to . agree to an extension of the 120 -day review period set forth in federal law. The Consultants make these recommendations based on the complete failure by Time Warner Cable to provide any reasonable financial data on TW NY or Time Warner Cable. To the extent Option B is selected, the approval must also be conditioned on the current Adelphia Plan of Reorganization. To the extent the Plan of Reorganization changes in any material way, the Rutan clients must reserve its right to withdraw its approval. FRONT RANGE CONSULTING, INC. AND ASFIPAUGH & SCULCO, CPAs, PLC Page I1 of I 1 i • X.VALUATION OF TWC EQUITY A. INTRODUCTION Under the Purchase Agreements, except in the case of the Expanded. Transaction,. the Company will receive as consideration, subject to adjustment, approximately $12.7 billion in cash and such number of shares of TWC Class .A Common Stock that, subject to the TWC Equity Securities Exceptions, will represent 16% of the outstanding equity securities of TWC as of the Sale Transaction Closing on a fully diluted basis. The TW Purchase Agreement does not contain any guarantee of the value of the TWC: Class A Common Stock. The Purchase Agreements do permit the Company not to effect the Sale Transaction Closing if, with respect.. to the TW Purchase. Agreement, either there has been a Parent Material Adverse Event or if TW NY is unable to make the TW Representation Bring -Down or the Buyer Covenant Bring -Down. To assist the Board in determining the estimated value of the shares of TWC Class A Common Stock to be received by the Debtors' constituents pursuant to the Sale Transaction, as contemplated by the Plan, the Board requested that the M&A Advisors, as part of their overall engagement; undertake an analysis of die estimated equity value of TWC; after giving effect to the Sale Transaction and the TWC /Comcast Transactions (for purposes of this Section.. X, "Valuation of TWC .Equity" only; TWC, after giving such effect, "Pro Forma TWC "). The M &A Advisors completed their analysis on April 5, 2005 and reviewed . their analysis with the Board at a meeting held. on April 9, 2005 to evaluate the Sale Transaction and the TWC /Comcast Transactions. As described below, the M&A Advisors subsequently updated their analysis, as of April 1.9, 2005, for presentation to the Board on April 20, 2005 prior to the Board's approval of the Sale Transaction. Distributions under the Plan are based on the Deemed Value of the TWC Class A Common Stock, which may greater or less than any valuation of Pro Forma TWC as ofthe Confirmation Date, or as of the Effective Date, or the actual trading value of the TWC Class A Common Stock when it begins to trade or at any time thereafter. Thus, the Debtors have not updated the valuation contained in this Disclosure Statement. Constituents whose recoveries include TWC Class A Common Stock bear the risk that the actual value of the recoveries they receive will be materially different than the Estunated Recoveries in respect of their claims included in this Disclosure . Statement. In conducting their analysis, the ltil &A Advisors, among other things: (I) reviewed certain publicly available business and historical financial information relating to TWC, the Company and Comcast; (2) reviewed certain internal fmancial information and other data relating: to the business and financial prospects of TWC, the Company and Comcast; (3) reviewed certain financial projections (including estimated synergies) for Pro Forma TWC (the "Financial Projections "), prepared by management. of TWC, and reviewed by management of the Company; (4) reviewed the projected tax attributes resulting from the Sale Transaction and the TWC /Comcast Transactions that Pro Forma TWC expects to realize, as provided by management of TWC; (5) conducted discussions with members of TWC's senior management concerning the business acrd financial prospects of TWC and Pro Forma TWC; (6) conducted discussions with members of the Company's . senior management concerning the business and financial prospects of the Company and Pro Fora TWC; (7) reviewed publicly available financial and stock market data with respect to.. certain other publicly traded companies in lines of business the M &A. Advisors . believed to be comparable in certain respects to Pro Forma TWC's businesses; and (8) conducted such other financial studies, analyses and investigations, and considered such other information, as the M &A Advisors deemed necessary or appropriate. The estimated equity value of Pro Forma TWC set forth in this section represents a hypothetical valuation of Pro Forma. TWC, assuming the consummation of the Sale Transaction and the TWC /Comcast Transactions and that Pro Forma TWC continues as an operating business, based on the valuation methodologies described below. The estimated equity value of Pro Forma TWC set forth in ibis section does not purport to constitute an appraisal or necessarily reflect the actual market value .. that might be realized through a sale or liquidation. of Pro Forma TWC, its securities or its assets, which value may be significantly higher or lower than the estimate set forth in this section.. In addition, the estimated equity value of. Pro :Forma TWC set forth in this section is not necessarily indicative of the prices at which the TWC Class A. Common Stock may trade at any time, . which prices may be significantly higher or lower than implied by such estimate. The market prices of the TWC Class A Common Stock will depend upon, among other things, prevailing interest rates, conditions in the financial markets, the investment decisions of the Company's prepetition creditors receiving shares of TWC Class A Common Stock under the Plan 364 14 • • (some of whom may prefer to sell these shares rather than hold them on a long -term basis) and other factors that generally influence the prices of securities. There can be no assurance as to the trading market, . if any, that may be available in the future with respect to the TWC Class A Common Stock. The M &A Advisors' estimate of the equity value of Pro Forma TWC was based upon, . among other assumptions,. Pro Forma. TWC achieving the Financial Projections. The future results of Pro Forma TWC will depend upon various factors, many of which are beyond the control or knowledge of TWC and the Company, and consequently, are inherently difficult to project.. The financial results reflected in the Financial Projections are based on the assumption of the successful combination of certain cable: systems of TWC; the Company and Comcast, as well as the realization of estimated synergies;.. and, thus, are materially different from the historical results of operations of TWC. In addition, the Financial Projections were prepared by management of TWC based upon information available at the time of preparation. Subsequent to the April 9, 2005 and April 20, 2005. presentations by the M &A Advisors to the Board as described in this section, the Financial Projections were refined by TWC as part of its updated business plan, which reflected updated information . provided by Company management regarding the Adelphia Acquired Systems; such financial' projections, as so refined, are set forth. in Section IX, titled "TWC Projections." The .Company views the Projections included in this Disclosure Statement as not materially different from those used by the M &A Advisors in their analyses. Pro Forma TWC's actual future results may differ materially from the Financial Projections, and such differences may affect the equity value of Pro Forma TWC. Therefore the estimated equity value. of Pro Forma TWC set forth in this section is inherently subject to substantial uncertainty: Accordingly, none of the Company, TWC, the M &A Advisors or any other person . makes any representation that the estimated equity value of ProTorma'1VC is indicative of the actual equity value of Pro Forma TWC or the prices at which the'FWC Class A Common Stock may trade at any time, which may be significantly higher or lower than the estimates contained in this section. TheM &A Advisors' analysis described below addresses the estimated equity value of Pro Forma TWC and does not address any other aspect of the Sale. Transaction and the TWC /Comeast Transactions,. the Plan or any other transactions. The M &A Advisors' estimated equity value of Pro Forma TWC does not constitute a recommendation to any holder of Claims or Equity Interests unto how such holder should vote or otherwise act with respect to the Plan or any other transaction. The estimated equity value. of Pro Forma TWC set .. forth in this section does not constitute an opinion as to fairness: from a. financial point of view to any person of the consideration to be received by such person under the Plan or of the terms and provisions of the Plan. As part of their respective investment banking business, each of the M &A Advisors is regularly engaged in evaluating businesses and their securities is connection with mergers and acquisitions, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements, restructurings and reorganizations and valuations for estate, corporate and other purposes. In the ordinary course of business, each of the M &A. Advisors and their successors and affiliates may trade, and may in the future trade, for their own accounts and the accounts of their customers, securities of Time Warner, TWC, Comeast and, except as restricted under their respective engagement letters from trading for their own account, of ACC and its subsidiaries and, accordingly, may at any time hold long or short positions in such securities. B. METHODOLOGY' In preparing their valuation, the M &A Advisors performed a variety of financial analyses and considered a variety of factors. The following is a brief summary of the material financial analyses performed by the M &A Advisors, which consisted of (1) an analysis of the market value and trading multiples of selected publicly traded companies in lines of business the M &A Advisors believed to be comparable in certain respects to Pro Forma TWC's businesses, which will include those cable systems of TWC; the Company and Comcast to be included in Pro Forma TWC; and (2) a discounted cash flow analysis to estimate the present value of Pro Forma TWC's projected future unlevered, after -tax cash flows available to debt and equity investors based on the Financial Projections. This summary does not purport to be a complete description of the analyses performed and factors considered by the M &A Advisors. The preparation of a valuation analysis is a complex analytical process involving various judgmental determinations as to the most appropriate and relevant methods . of financial analysis and the application 365 _w 0 0 of those methods to particular facts: and circumstances, and such analyses and judgments are not readily susceptible to summary description. The M &A Advisors believe that their analyses of Pro FormaTWC must be considered as a whole and that .selecting portions of their analyses, without considering: all of their analyses and all 'parts 'thereof, could create a misleading or incomplete . view of the processes underlying the M &A Advisors' conclusions. The M &A Advisors did not draw, in isolation, conclusions from or with regard.. to any one analysis or factor, nor did the M&A. Advisors place any particular reliance or weight on any individual analysis. Rather, the M &A Advisors arrived at their views based on all the analyses undertaken by them assessed as awhole. Each M&A Advisor is separately responsible for its own analyses and estimated valuation, and neither M &A Advisor is responsible for any action or omission of the other M &A. Advisor. For purposes of the M &A Advisors' financial analyses, the equity value of Pro Forma TWC was calculated as the estimated consolidated enterprise value of the cable operations of Pro Forma TWC (including the estimated value of synergies) plus the value of unconsolidated assets and the estimated value of tax attributes to be realized by TWC as a result of the Sale Transaction and the TWC /Comcast Transactions, less book value of estimated net indebtedness and of preferred stock, less minority interests. At the Company's direction, the M &A Advisors calculated the equity value of Pro Forma TWC assuming no discount in respect of any trading anomalies attributable to the possibility that initial holders are not necessarily: the natural long - term - holders or other supply/demand imbalances on the TWC Class A Common Stock to be received by the Debtors' prepetition creditors . under the Plan. SeleeteaPubliely Traded Companies Analysis. The M &A Advisors analyzed the enterprise value and trading multiples of selected publicly held companies in lines of business the M &A Advisors believed to be comparable in certain respects to Pro Forma TWC's businesses, which will include those cable systems of TWC, the Company and Comcast to be included in Pro Forma TWC. The companies selected for this analysis were: Comcast, Charter Communications, Cablevision Systems, Insight Communications and Mediacom Communications. In calculating the enterprise values of the above compares, the M &A Advisors adjusted such enterprise values .. where necessary by subtracting the estimated value of non -cable assets to arrive at a cable asset value C'_C V" ). The M &A Advisors then calculated the CAV of the selected companies as a multiple of certain historical and projected financial and operational data of such companies such as cable EBITDA and basic subscribers. The M &A Advisors then analyzed those multiples and considered them in deriving a range ofmultiples appropriate for each of the TWC Company and Comcast cable systems. comprising Pro Forma TWC, taking into consideration the different attributes of each. Based on the derived multiples, . a range of CAVs for Pro Forma TWC was calculated factoring in the relative size of the cable system contributions to Pro Forma TWC of TWC, the Company and Comcast In. arriving at a range of enterprise values for Pro Forma TWC, the M &A Advisors separately factored in a range of estimated values for the estimated synergies and tax attributes as provided by TWC management. The projected financial and operational data for Pro Forma TWC's businesses were based on the Financial Projections, and the projected financial and operational data for the selected companies were based on publicly available research analyst reports and other publicly available information. Although the selected companies were used for comparison purposes, no selected company is either identical or directly comparable to the businesses. of Pro Forma TWC. Accordingly, the M &A Advisors' comparison of the selected companies to Pro Forma TWC and analysis of the results of such comparisons was not purely mathematical, but instead necessarily involved complex considerations and judgments coneerningdifferences in financial , and operating characteristics and other factors that could affect the relative values of the selected companies and of Pro Forma. TWC. Discounted Cash Flow Analysis. The M &A Advisors performed a discounted cash flow analysis for Pro Forma TWC to estimate the present value of the projected future unlevered, after -tax cash flows based on the Financial Projections. The present value range of the projected future unlevered;. after-tax cash flows was calculated as the sum of the present value of Pro Forma TWC's cash flows through the final year projected in the Financial Projections (the "terminal year') and the present value of its estimated terminal value at the end of the terminal year. 366 S1 +� s For the purpose of calculating Pro Forma TWC's terminal value at the end of the terminal year, the M &A .Advisors applied a.range of EBITDA multiples to the projected terminal. year EBITDA. The M &A Advisors then applied .. a range of discount rates to the alter -tax cash flows described above and the range of terminal values at the end of the terminal year of: Pro ,Forma TWC to arrive at a range of present values for those cash flows and the terminal values. 'The discoumed cash flow analysis also involves complex considerations and judgments concerning terminal year EBITDA multiples mid discount rates. While tax attributes were not included in the Financial Projections and, thus; were not reflected in the consolidated enterprise value of the cable operations of Pro Forma TWC derived from the discounted cash flow analysis, the M &A Advisors also factored in a range of estimated values of the projected tax attributes provided by TWC management in order to calculate the equity value of Pro Forma TWC based on the discounted cash flow analysis.. C. ESTIMATED EQUITY VALUE OF PRO FORMA TFVC In comnection with the M&A Advisors' analysis, with the Company's consent,. the M&A. Advisors did not assume any responsibility for - independent verificatiou of any of the information provided to the M&A .Advisors, publicly available to the M&A Advisors or otherwise reviewed .. by the M&A Advisors, and the M&A Advisors . relied,: with the Company's consent, on such information being complete and accurate in all material respects. The M &A Advisors further assumed; at the Company's direction; that the Financial Projections were reasonably prepared on a basis reflecting the best currently available estimates and judgments (including regarding projected synergies and tax attributes) of the Company's and TWC's senior management as to the future perfo ;mane of Pro Forma TWC. In addition, with the Company's consent, the M&A Advisors did not assume . any responsibility for independently evaluating theacbievability of the financial Projections or the reasonableness of the assumptions upon which they were based, did not conduct a physical inspection of the properties, facilities and products of TWC; the Company or Comcast, and did not make any independent evaluation or appraisal of any of the assets or liabilities (contingent or otherwise) of TWC, the Company and Comcast. The M &A Advisors also assumed; with the Company's consent, the following (as to which the M &A Advisors made no representation): • Pro Forma TWC will achieve the Financial Projections;: • the Sale Transaction and the TWClComcasfTransactions are consummated as described in the Plan; • Pro Forma TWC's capitalization will be as set forth in the Financial Projections;. • the projected tat attributes of Pro Forma TWC shall be as provided to the M&A Advisors by TWC's management; • Pro Forma TWC will 'be able to obtain all future financings on the terms mid at the times necessary to achieve the Financial Projections;.. • Pro Forma TWC will not engage in any material asset sales or other strategic: transactions, and no material asset sales or strategic transactions are required to meet Pro Forms TWC's ongoing cash requirements or to achieve the Financial Projections; • all governmental, regulatory or other consents and approvals necessary for the consummation of the Sale Transaction and the TWC /Comcast Transactions will be obtained without any material adverse effect on Pro Forma TWC; • there will ootbe any material change, from the date of valuation, in the business, condition (financial or otherwise), results of operations, assets, liabilities or prospects of Pro Forma TWC other than as reflected.' in the Financial Projections; and 367 a • there will not be any material, change, from the date of valuation, in economic, market, financial and other conditions. Based on the M &A Advisors' estimated equity value of Pro Forma TWC the Company asked the M &A Advisors to calculate an estimated equity value for 16% of Pro Forma TWC. For the purposes of preparing an estimated equity value for 16% of Pro Forma TWC, the M &A Advisors assumed; with the Company's. consent, (i) no premium or discount for the minority position represented by the 16% interest or the inferior per share voting rights of the TWC Class A Common.: Stock relative to the TWC Class B Common Stock and (ii) that 16% of the equity securities of Pro Forma. TWC would be issued to the Debtors' constituents pursuant to the TW Adelphia Acquisition, notwithstanding that such equity interest is subject to dilution due to the TWC Equity Securities Exceptions. Based upon the review and analyses described'. in this section and subject to the assumptions, limitations and qualifications described herein, at a. meeting of the Board held on April 9,2005 to evaluate the Sale Transaction and the'TWC(Conacast Transactions, the M &A Advisors advised the Board that the M &A Advisors' view was that the .midpoint of the range of estimated equity values: for 16 % of Pro Forma TWC would be $4.985 . billion as of April 5, 2005. At the request of the Company; the M &A Advisors updated their April 5, 2005 valuation of the equity of Pro Forma TWC as a result of :a decline in the daily trading prices of several publicly traded cable companies subsequent to that date. Based on such updated review and analyses as described in this section and subject to the assumptions, limitations and qualifications described herein, dre M &A Advisors advised the Board on April 20, 2005 that their view was that the midpoint of the range of estimated equity values for 16% of Pro Forma TWC would be $3.802 . billion as of April 19, 2005. The Board discussed the updated range and analyses. At the conclusion of the April 20, 2005 meeting, the Board approved the execution of the Purchase Agreements. The $4.96 billion valuation midpoint for 16% of Pro Forma TWC set forth in the TW Purchase Agreement reflects an agreement between the patties to the TW Purchase Agreement as to the midpoint of the range of estimated values, which midpoint was to beset forth in this Disclosure Statement. The Company believes that fluctuations of such magnitude in trading prices of cable companies are typical. The range of estimated equity values of Pro Forma TWC was necessarily based on economic, market, fmaneW and other conditions as they existed . on, and on the information available to the:M &A Advisors as of, the date of the respective analyses. Although . developments subsequent to the analyses may have affected or may affect the.M &A Advisors' analyses and views, the M &A Advisors did not and do not have any obligation to update, revise or reaffinn their estimate. 368 nh (41-) IQo-Zpos �£ ._.,_PITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. i g 3 September 13, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Resolution 2005 -_ Authorizing the City Manager to Reject Documents relating to the Transfer of Adelphia's Franchise to either Time Warner or Comcast ISSUE: How should the City best protect the community's interest as the pending transfer of cable assets from Adelphia to Time Warner (or Comcast) unfolds? RECOMMENDATION: Adopt Resolution 2005- authorizing the City Manager (or a City staff member designated by the City Manager) to reject one or more Federal Communications Commission (FCC) forms relating to the transfer of one of the City's cable franchises. DISCUSSION: Background: Adelphia Communications has held a franchise to operate a cable system in about 60% of the community for the past several years. Previous to Adelphia's arrival, Comcast held the franchise over the same territory. The City's franchises are non - exclusive, meaning that any cable company can request a franchise agreement, enter the Newport Beach market, build a cable system, and solicit customers. This kind of direct competition between cable companies for the same customers is rare, because of the large initial investment required to lay a cable system alongside an existing system. Remember that the "plant" in the ground is the property of each cable system - it's not city nor public property. i` J Resolution Relatin -OAdelphia -Time Warner Transfer . September 13, 2005 Page 2 Cox communications holds a franchise for the roughly 40% of the city not served by Adelphia. Here is our most recent data on how many subscribers each company has in Newport Beach: In April of 2005, Time Warner Inc. and Comcast Corp. agreed to acquire Adelphia Communications Corp. for $17.6 billion through a deal with Adelphia's creditors. Adelphia, based in Colorado, was one of the largest U.S. cable operators, with more than 5.3 million customers in 31 states. In 2002, the company filed for bankruptcy. In 2004, Adelphia founder and CEO John Rigas and son (and CFO) Timothy Rigas were convicted of fraud and other charges. Adelphia is now run by a management team led by Chairman and CEO William Schleyer, a longtime cable executive. In June 2005, the Federal Communications Commission (www.fcc.gov) received a submittal by Time Warner and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, Time Warner, because TW will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent (via what's called a Form 394) to approve the Adelphia to Time Warner switch and to allow Time Warner to step into the current franchise agreement that Adelphia holds. For your information, the current franchise agreements with both Adelphia and Cox have expired, and the agreements are on "holdover" status. Our special cable counsel (Bill Marticorena of Rutan and Tucker) has advised the City to seek renewal under the City's terms when the ultimate buyer of Adelphia has taken title to Adelphia's assets. Months ago, the Telecommunications Committee and the City Council prepared and approved a document that serves as the City's negotiating platform, provided that there is an entity with which to negotiate franchise renewals. Newport : °. ch Ca b s Sheet Subscriber e •45,023 # of cable drops in Franchise Area 31,123 13,900 # of cable N subscribers 16,978 10,100 27,078 % of cable drops who take cattle 55% 73% 60% NERMITIMM ;rMevenue to City Adelphla Cox Total - -1999 (Calendar Year) $ 656,558 $ 266,671 $ 923,229 --2000 $ 722,714 $ 280,602 $ 1,003,316 - -2001 $ 705,709 $ 395,824 $ 1,101,533 --2002 $ 714,762 $ 394,732 $ 1,109,494 --2003 $ 640,330 $ 470,404 $ 1,110,734 --2004 $ 766,343 $ 494,411 $ 1,260,753 -- 2005 (to date, includes 41h Q'04) $ 411,480 $ 402,014 $ 813,494 In April of 2005, Time Warner Inc. and Comcast Corp. agreed to acquire Adelphia Communications Corp. for $17.6 billion through a deal with Adelphia's creditors. Adelphia, based in Colorado, was one of the largest U.S. cable operators, with more than 5.3 million customers in 31 states. In 2002, the company filed for bankruptcy. In 2004, Adelphia founder and CEO John Rigas and son (and CFO) Timothy Rigas were convicted of fraud and other charges. Adelphia is now run by a management team led by Chairman and CEO William Schleyer, a longtime cable executive. In June 2005, the Federal Communications Commission (www.fcc.gov) received a submittal by Time Warner and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, Time Warner, because TW will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent (via what's called a Form 394) to approve the Adelphia to Time Warner switch and to allow Time Warner to step into the current franchise agreement that Adelphia holds. For your information, the current franchise agreements with both Adelphia and Cox have expired, and the agreements are on "holdover" status. Our special cable counsel (Bill Marticorena of Rutan and Tucker) has advised the City to seek renewal under the City's terms when the ultimate buyer of Adelphia has taken title to Adelphia's assets. Months ago, the Telecommunications Committee and the City Council prepared and approved a document that serves as the City's negotiating platform, provided that there is an entity with which to negotiate franchise renewals. Resolution Relating Odelphia -Time Warner Transfer September 13, 2005 Page 3 Mr. Marticorena has also advised us to adopt the attached resolution. The resolution allows the City Manager or his staff designee to respond directly to the issues presented in the Form 394 and to reject all or certain aspects of the Time Warner to Adelphia transfer if the City Manager, upon obtaining input from the Telecommunication Committee, believes that documents, actions, or facts associated with the proposed transfer raise concerns. Committee Action: None. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave Ki Assists ty Manager Attachment: Resolution 2005- I* Resolution RelatinoAdelphia -Time Warner Transfer September 13, 2005 Page 4' 0 RESOLUTION 2005- A RESOLUTION OF THE CITY COUNCIL OF THE CITY NEWPORT BEACH, CALIFORNIA DELEGATING AUTHORITY TO THE CITY MANAGER TO REJECT ONE OR MORE FCC FORMS 394 RELATING TO THE TRANSFER OF THE CABLE TELEVISION FRANCHISE, AND /OR CONTROL THEREOF, TO AN ENTITY CONTROLLED BY TIME WARNER CABLE OR COMCAST CORPORATION WHEREAS, the City of Newport Beach (the "City') has received one or more FCC Forms 394 (collectively, the "Application ") requesting consent of the City Council to the assignment of the Cable Television Franchise granted to Adelphia Communications (the "Franchisee "), or control thereof, to an entity ultimately controlled by Time Warner Cable or Comcast Corporation WHEREAS, the City Council of the City has determined that the public interest is served by delegating to the City Manager, or a City staff member individual designated by the City Manager in writing and with the consultation of the Telecommunications Committee, the authority to deny and reject some or all of the Application without prejudice for certain reasons and upon certain grounds. NOW, THEREFORE, the City Council of the City of Newport Beach', California, does hereby resolve as follows: Section 1: The City Manager, or a City staff member so designated by the City Manager, is hereby delegated the authority to reject the Application, or any portion thereof, without prejudice for one or more of the following reasons Failure to timely provide information required by the terms of the Franchise Agreement or applicable state or local law; 2. Failure to timely provide any other requested additional information necessary to analyze the proposed transfer for compliance with or the transferee's ability to comply with the City's Franchise Agreement and Cable Ordinance; 3. Failure on the part of the Applicant to timely cooperate with Staff, its attorneys and consultants, in performing due diligence relating to the Application, the legal, technical, and financial qualifications of the proposed Transferee and /or the impact of the transaction upon cable television rates and/or services; 4. Failure to timely cure any outstanding breach of franchise prior to or as an express condition of approval of the transaction in a manner acceptable to the City Manager; 5, Failure to timely execute and deliver a Transfer Agreement acceptable as to form and substance by the City Attorney; Resolution Relating0delphia -Time Warner Transfer September 13, 2005 Page 5 0 6. Failure to demonstrate the legal, technical and financial qualifications of the Transferee; Failure to provide a written financial guarantee, acceptable as to form and substance by the City Manager, of the legal entity(s) for which financial disclosure was provided in the Application of and /or additional filings; and 8. Filing FCC Forms 394 providing for potentially different Transferees. If the City Manager, or his or her staff designee, determines that a rejection of all or parts of the Application is in the best interest of the city's subscribers, the City Manager shall present findings to the Telecommunications Committee and seek the Committee's advice in this regard. Section 2. The decision of the City Manager, pursuant to the authority delegated and provided by this Resolution, shall be made in writing and shall be deemed, without further action of the City Council, to constitute an act of the Franchising Authority within the meaning of 47 C.F.R. § 76.502 and a "final decision" of the City Council within the meaning of §§ 617(e) of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L.No. 103 -385, 106 Stat. 1477 (1992). Section 3. Any denial, disapproval, or rejection issued pursuant to the authority of this Resolution shall be deemed "without prejudice" to the ability of the Applicant to file another FCC Form 394 relating to the same or a different transaction. However, nothing herein shall limit the authority of the City Council, the City Manager, or the City staff member so designated by the City Manager, to reject any subsequent FCC Form 394 based upon the same grounds set forth in the written notice of denial or such other grounds as might exist in relation to said future FCC Form 394. PASSED and ADOPTED by the City Council of the City of Newport Beach at a regular meeting held on the 13th Day of September, 2005. ATTEST: LaVonne Harkless City Clerk of the City of Newport Beach 0 Signed: JOHN HEFFERNAN Mayor of Newport Beach V , i a COUNCIL A Na L3 -l3­015 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 3 August 23, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Resolution 2005 - Authorizing the City Manager to Reject Documents relating to the Transfer of Adelphia's Franchise to either Time Warner or Comcast ISSUE: How should the City best protect the community's interest as the pending transfer of cable assets from Adelphia to Time Warner (or Comcast) unfolds? RECOMMENDATION Adopt Resolution 2005 authorizing the City Manager (or his designee) to reject one or more Federal Communications Commission (FCC) forms relating to the transfer of one of the City's cable franchises. DISCUSSION: Background: Adelphia Communications has held a franchise to operate a cable system in about 60 %v of the community for the past several years. Previous to Adelphia's arrival, Comcast held the franchise over the same territory. The City's franchises are non - exclusive, meaning that any cable company can request a franchise agreement, enter the Newport Beach market, build a cable system, and solicit customers. This kind of direct competition between cable companies for the same customers is rare, because of the large initial investment required to lay a cable system alongside an existing system. Remember that the "plant" in the ground is the property of each cable system - it's not city nor public property. Resolution Relating26 Adelphia -Time Warner Transfer August 23, 2005 Page 2 Cox communications holds a franchise for the roughly 40% of the city not served by Adelphia. Here is our most recent data on how many subscribers each company has in Newport Beach: # of cattle drops in Franchise Area # of cable TV subscribers % of cable drops who take cable 31,123. 13,900 45,023 16,978 10,100 27,078 55 % 73% 60% -- 1999 (Calendar Year) $ 656,558 $ 266,671 $ 923,229 --2000 $ 722,714 $ 280,602 $ 1,003,316 - -2001 $ 705,709 $ 395,824 $ 1,101;533 - -2002 $ 714,762 $ 394,732 $ 1,109,494 - -2003 $ 640,330 $ 470,404 $ 1,110,734 --2004 $ 766,343 $ 494,411 $ 1,260,753 -- 2005 (to date, includes 4th Q'04) $ 411;480 $ 402,014 $ 813,494 In April of 2005, Time Warner Inc. and Comcast Corp. agreed to acquire Adelphia Communications Corp. for $17.6 billion through a deal with Adelphia's creditors. Adelphia, based in Colorado, was one of the largest U.S. cable operators, with more than 5.3 million customers in 31 states. In 2002, the company filed for bankruptcy. In 2004, Adelphia founder and CEO John Rigas and son (and CFO) Timothy Rigas were convicted of fraud and other charges. Adelphia is now run by a management team led by Chairman and CEO William Schleyer, a longtime cable executive. In June 2005, the Federal Communications Commission (www.fcc.gov) received a submittal by Time Warner and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, Time Warner, because TW will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent (via what's called a Form 394) to approve the Adelphia to Time Warner switch and to allow Time Warner to step into the current franchise agreement that Adelphia holds. For your information, the current franchise agreements with both Adelphia and Cox have expired, and the agreements are on "holdover" status. Our special cable counsel (Bill Marticorena of Rutan and Tucker) has advised the City to seek renewal under the City's terms when the ultimate buyer of Adelphia has taken title to Adelphia's assets. Months ago, the Telecommunications Committee and the City Council prepared and approved a document that serves as the City's negotiating platform, provided that there is an entity with which to negotiate franchise renewals. I Resolution Relating9delphia -Time Warner Transfer August 23, 2005 Page 3 Mr. Marticorena has also advised us to adopt the attached resolution. The resolution allows the City Manager or Mr. Marticorena to respond directly to the issues presented in the Form 394 and to reject all or certain aspects of the Time Warner to Adelphia transfer if Marticorena believes that documents, actions, or facts associated with the proposed transfer raise concerns. Committee Action: None. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave 'f Assistant City Manager Attachments; Resolution 2005 - Document from the FCC Website regarding transfers 3 • Resolution RelatingfAdelphia -Time Warner Transfer t August 23, 2005 Page 4 RESOLUTION 2005- A RESOLUTION OF THE CITY COUNCIL OF THE CITY NEWPORT BEACH,. CALIFORNIA DELEGATING AUTHORITY TO THE CITY MANAGER TO REJECT ONE OR MORE FCC FORMS 394 RELATING TO THE TRANSFER OF THE CABLE TELEVISION FRANCHISE, AND /OR CONTROL THEREOF, TO AN ENTITY CONTROLLED BY TIME WARNER CABLE OR COMCAST CORPORATION WHEREAS, the City of Newport Beach (the "City ") has received one or more FCC Forms 394 (collectively, the "Application') requesting consent of the City Council to the assignment of the Cable Television Franchise granted to Adelphia Communications (the "Franchisee "), or control thereof, to an entity ultimately controlled by Time Warner Cable or Comcast Corporation; WHEREAS, the City Council of the City has determined that the public interest is served by delegating to the City Manager, or said individual designated by the City Manager in writing, the authority to deny and reject the Application without prejudice for certain reasons and upon certain grounds. NOW, THEREFORE, the City Council of the City of Newport Beach, California, does hereby resolve as follows: Section 1: The City Manager, or his /her written designee, is hereby delegated the authority to reject, the Application, or any portion thereof, without prejudice for one or more of the following reasons: 1. Failure to timely provide any "additional information required by the terms of the Franchise Agreement or applicable state or local law "; 2. Failure to timely provide any other requested additional information; 3. Failure on the part of the Applicant to timely cooperate with Staff, its attorneys and consultants, in performing due diligence relating to the Application, the legal, technical, and financial qualifications of the proposed Transferee and /or the impact of the transaction upon cable television rates and /or services; 4. Failure to timely cure any outstanding breach of franchise prior to or as an express condition of approval of the transaction in a manner acceptable to the City Manager; 5. Failure to timely execute. and deliver a Transfer Agreement acceptable as to form and substance by the City Manager; y Resolution Relating 9delphia- Time Warner Transfer August 23, 2005 Page 5 6. Failure to demonstrate the legal, technical and financial qualifications of the Transferee; 7. Failure to provide a written financial guarantee, acceptable as to form and substance by the City Manager, of the legal entity(s) for which financial disclosure was provided in the Application of and /or additional filings; and 8. Filing FCC Forms 394 providing for potentially different Transferees. Section 2. The decision of the City Manager, pursuant to the authority delegated and provided by this Resolution, shall be made in writing and shall be deemed, without further action of the City Council, to constitute an act of the Franchising Authority within the meaning of 47 C.F.R. § 76.502 and a "final decision" of the City Council within the meaning of §§ 617(e) of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 103 -385, 106 Stat. 1477 (1992). Section 3. Any denial, disapproval, or rejection issued pursuant to the authority of this Resolution shall be deemed "without prejudice" to the ability of the Applicant to file another FCC Form 394 relating to the same or a different transaction. However, nothing herein shall limit the authority of the City Council, the City Manager, or his /her written designee, to reject any subsequent FCC Form 394 based upon the same grounds set forth in the written notice of denial or such other grounds as might exist in relation to said future FCC Form 394. PASSED and ADOPTED by the City Council of the City of Newport Beach at a regular meeting held on the 23`d day of August, 2005. Signed: JOHN HEFFERNAN Mayor of Newport Beach ATTEST: LaVonne Harkless City Clerk of the City of Newport Beach 5 PUBLIC NOTICE Federal Communications Commission News Media lnformation2021418 -0500 44512 In St., S.W. Internet: http :li w .fcc.gov Washington, D.C. 20554 TTY: 1-088-035.5322 DA 05 -1591 Released: June 2, 2005 MEDIA BUREAU ACTION ADELPH[A COMMUNICATIONS CORPORATION, DEBTOR -IN- POSSESSION, TIME WARNER INC'. AND COMCAST CORPORATION SEEK APPROVAL TO TRANSFER CONTROL AND /Ott ASSIGN FCC AUTHORIZATIONS AND LICENSES :NIB Docket No. 05 -192 PLEADING CYCLE ESTABLISHED Comments /Petitions Due: July 5, 2005 Responses /Oppositions to Petitions Due:. July 20,2005 On May 15, 2005, Adelphia Communications Corporation (" Adelphia'), Time Warner Inc. ( "Time Warner ") and Comcast Corporation ( "Comcast "). (collectively. "Applicants ") submitted joint applications to the Commission seeking consentto transfer control of and /or assign various Commission licenses and authorizations pursuant to Section 214 and 310(d) of the Communications Act of 1934.' The proposed license transfers and assign nents are associated with a series of transactions ( "Transactions ") that when completed will effectuate the sale of certain cable systems and assets of Adelphia and its affiliates and related entities to subsidiaries or affiliates of Time Warner; the sale of certain cable systems and assets of Adelphia to subsidiaries or affiliates of Comcast; the exchange of certain cable systems and assets between affiliates or subsidiaries of Time Warner and Comcast and the redemption ofComcast's ' See 47 U.S.C. §§ 214, 310(d); Applications for Consent to the Assignment and /or Transfer of Control of Licenses, Adelphia Communications Corporation; Assignors, to 'Time Warner Cable Inc., Assignees; Adelphia Communications Corporation, Assignors and Transferors, to Comcast Corporation, Assignees and Transferees; Comcast. Corporation, Transferor, to Time Warner Inc., Transferee; Time Warner Inc., Transferor, to Comcast Corporation. Transferee, Applications and Public Interest Statement ( "Application"), M6 Docket No. 05 -192 (filed May 18. 2005). • • interest in Time Warner Cable Inc. ("Time Warner Cable") and Time Warner Entertainment Company, L.P. ( "TWE "),z The proposed Transactions involve a series of agreements whereby Time Warner Cable and Conncast separately will acquire various cable systems that, in the aggregate, comprise substantially all of the domestic cable systems owned or managed by Adelphia for a total of $12.7 billion in cash. Adelphia provides cable service to approximately five million subscribers; making it the fifth largest cable television company and the seventh largest multichannel video programming distributor ( "MVPD ") in the United States, Comcast is the nation's largest MVPD and will remain so upon completion of the Transactions. Today, Comcast stales that it serves approximately 26.1 million subscribers in 35 states and the District of Columbia, or 23.2 %ofMVPD subscribers nationwide .4 Time Warner Cable states that it owns or manages cable systems serving 13.1 million cable subscribers in 27 states, making it the nation's second largest cable operator and third largest MVPD.S As part o f t he initial phase of the overall transaction, in accordance with separate purchase agreements, Time Warner NY Cable (TWNY), a wholly- :owned subsidiary of Time Warner Cable; and Comcast will each acquire ..a portion of substantially all of the cable systems owned or operated by Adelphia (the "Adelphia transactions'). Time Warner Cable will pay $9.2 billion in cash and issue comnnon shames totaling 1.6% of Time Warner Cable's outstanding common equity to Adelphia stakeholders. Comcast will pay $3.5 billion in cash. Each of the Adelphia transactions is conditioned upon contemporaneous consummation of the other. The Adelphia transactions are not dependent oil the occurrence ofthe additional system swaps and redemption transactions between Time Warner Cable and Comcast. Upon consummation of the Adelphia transactions, Time Warner Cable and Conncastwill exchange certain cable systems owned by affiliates of Time Warner or Comcast, respectively, together with certain cable systems to be acquired in the Adelphia transactions. In the exchange transactions, Time Warner Cable will receive. current Comcast systems located in or around Los Angeles, California; Cleveland,, Ohio; and Dallas, Texas, and systems currently owned by Century -TCI California Communications; L.P., in the Los Angeles area, and by Parnassus Communications, L.P. and Wester Cablevision, L.P., in Ohio and western New York. Comcast will receive Time Warner's current cable systcims serving portions of Philadelphia, Pennsylvania and certain systems currently owned by Adelphia located in California, Colorado, Connecticut, Florida, Georgia, Kentucky, Massachusetts, Maryland,, ' A complete list of the licenses and authorizations held by Adelphia, Time Warner and Conncastand subject to the tiled applications is set forth in the Attachment and Appendix. ' Adelphia`s subscriber count includes subscribers served by sevemljoint ventures with Comcast: the Century-TCI Joint Vetilui,e and the Pai'nassos Joint Ventures. Adelphia also serves subscribers through joint Ventures with Tele- Media Corporation of Delaware. Conncast estimates there are 92.6 million MVPD subscribers nationwide (citing Kagan Media Money, April 26, 2005, at 7). Approximately 21_5 million subscribers are served by Comcast's wholly owned systems; approximately 4,6 million are served by systems owned jointly by Comcast and other cable operators. These include systems jointly owned with Time Warner, which serve approximately 1.5 million subscribers. `This total includes subscribers served by systems owned jointly with other cable operators, including systems co- owned with Conncast that serve 1.5 million subscribers, and systems owned jointly with the Time Warner Enteraimient-Advance/Newhouse Partnership( "TWE -AM "). TWE -A/N owns systems serving 5,1 million subscribers, of which systems serving 2.9 million subscribers are managed by Time Warner. The remaining 2.2 million TWE' -A /N subscribers are served by systems managed by Bright. House Networks, an affiliate of Advance/Newhouse. These systems are attributable to Time Wainer Cable. 7 • • North Carolina, New Hampshire, New York, Pennsylvania, Tennessee, Virginia, Vermont, Washington and West Virginia. Also upon consummation of the Adelphia transactions, Time Warner Cable and Comcasl will execute two Redemption Agreements. First, Time Warner Cable will redeein Coincast's 17.9% equity interest in Time Warner Cable; currently held in an FCC - mandated trust, in exchange for 100% of the common stock of a Time Warner Cable subsidiary that ultimately will own various cable systems, plus approximately $1.9 billion in cash and.600,000 subscribers. Second, TWE will redeem Comcast's 4.7% limited partnership . interest in TWE in exchange for approximately $133 million in cash, 150,000 subscribers, and 100% of the membership interests of a limited liability company that will own various Time Wainer Cable systems. Finally; upon consummation of the Adelphia transactions, certain FCC licenses held by Adelphia . will be assigned (or control transferred) to Comcasl, its subsidiaries or affiliates, and other Adelphia FCC licenses will be assigned to subsidiaries or affiliates of Time Warner Cable. In addition, upon consummation of the Time Warner /Comcast exchange agreements, control of certain . subsidiaries or affiliates of Time Warner Cable or Comcast, respectively, holding FCC licenses (including certain FCC licenses acquired from Adelphia), will be transferred from Time Warner to Comcasl or from Comcasl to Time Warner. Upon consummation of the redemption agreements between Comcast and Time Warner Cable.and TWE, certain FCC licenses will be assigned first to a newly formed Time Warner Cable sribsidiary on a pro forma basis, and then control of the new entity will be transferred from Time Warner to Comcast. "file Applications seek consent for those: various assignments and /or transfers of control. Conicast slates that upon completion of the Transactions, it will serve approximately 26.3 million subscribers. or 28.9% of M VPD subscribers.6 Time Warner Cable states that, as a result of the Transactions, will add 3.5 million basic video subscribers, in total serving 16.6 million basic subscribers nationally, or 17.9% of MVPD subscribers. Time Warner Cable expects to emerge as tile second largest MVPD in the United Slates. Also, upon completion of the Transactions, Time Warner Cable will become a publicly traded company, Time Warner will hold 84 % of the common stock and 91 % of the voting control ofTime Warner Cable. Adelphia stakeholders collectively will hold the remaining 16% of common stock of Time Warner Cable. EX PARTE STATUS OF THIS PROCEEDING Because this proceeding involves broad public policy issues, the proceeding will be seated as "permit but disclose" for purposes of the Commission's ee parse rules. Seegeneraffi, 47 C.F.R. §§ 1.1200- 1.1216. Should circumstances warrant, this proceeding orally related proceeding may be designated as restricted. Asa result of the permit- but - disclose status oflhis proceeding, ezpurre presentations will be governed by the procedures set forth in Section 1.1206`of the Commission's rules applicable to non- restricted proceedings.7 'Approximately 233 million of these subscribers will be served by wholly owned systems, and 3.5 million will be served . by systems ownedjointly with others. Although Comcast expects to add approximately 1.8 million wholly owned subscribers through the Transactions, its total numberof subscribers served through jointly owned systems will decrease by approximately 1.1 million, fora net increase of 680,000 subscribers, or 0.73% of 1J VPD subscribers. ' An es poric presentation is any communication (spoken or written) directed to the merits or outcome of a. proceeding made to a Commissioner, a Commissioner's assistant, or other decision - making staff member, that; if written, is not served on other parties to the proceeding or, if oral, is made without an opportunity for all parties to be present See 47 C.F.R. § 1.1201. v cry • • Parties making oral ex pane presentations are directed to the Commission's statement re- emphasizing the public's responsibility in permit -but- disclose proceedings and are reminded that memoranda summarizing the presentation must contain the presentation's substance and not merely list the subjects discussed s More than a one- or two - sentence description of the views and arguments presented is generally required.' We urge parties to use ECFS to file exparlesubtnissions.10 GENERAL INFORMATION The applications for transfer of control of the licenses and authorizations referenced herein, upon initial review, have been accepted for filing. The Commission reserves the right to return any application if, upon further examination, it is determined to be defective and not in conformance with the Commission's rules, regulations, or policies interested parties must file comments or, petitions to deny no later than July 5, 2005. Persons and entities that File comments or petitions to deny become parties to the proceeding. They may participate fully in the proceeding, including seeking access to any confidential information that may be filed under a protective order, seeking reconsideration of decisions, and filing appeals of afinal decision to the courts. Responses or oppositions to such pleadings must be tiled no later than July 20, 2005. All filings concerning matters referenced in this Public Notice should refer to MB Docket No. 05 -192, as well as the specific file numbers of the individual applications or other matters to which the filings pertain (unless the Rings pertain to all applications). Under the Commission's current procedures for the submission of filings and other documents, submissions in this matter may be filed electronically (i.e., through ECFS) or by hand delivery to the Commission's Massachusetts Avenue location. If filed by ECFS, comments shall be sent as an electronic file via the Internet to littp, : / /Nvww.fcc.gov /e- file /ecfs.litml. fit completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket number. Parties may also submit an electronic comment by Internet'e -mail. To get filing instructions fore -mail comments, commenters should send all e -marl to ecfsa)fce.eov, and should include the following words in the body of the message, "get form<your e -mail address >. " A sample form and directions will be sent in reply. If filed by paper, . the original and four copies of each filing must be filed by hand or messenger delivery, by commercial overnight courier, or by first -class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). 'The Commission's contractor, Natek, inc., will receive hand- delivered or messenger- delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, N.E., Suite 110, Washington, D.C. '20002, The filing Hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service a' .See Commission ErnphasLes the Public's Responsibilities in Permil- Brit- Disclose Proceedings, Public Notice, FCC 00 -358, 15 FCC Red 1.9945 (2000). °.Sce. 47 C.F.R. § 1.1:206(b)(2), as revised. Other rules pertaining to oral and written presentations are set forth in .Section 1.1206(b) as well. 0 See "General Information' section. 3 0 • I -.. Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first -class snail; Express Mail, and Priority Mail should be addressed to 445 12'" Street; S.W., Washington, D.C. 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. In addition, one copy of each pleading most be sent to each of the following: 1. The Commission's duplicating contractor, Best Copy and Printing, Inc.,. Portals 11, 445 12 °' Street, S.W., Room CY -13402, Washington, DC 20554, telephone 1 -800- 378 -3160, or via e-mail at www.bcoiweb.com; 2. Barbara Esbin, Media Bureau, Room 3 -C458, e -mail, Barbara.Esbin @fce,gov.1 1 3. Tracy Waldon, Media Bureau, Room 3 -C488; e -mail Tracy.Waldon @fcc.gov. 4. Royce. Sherlock, Media Bureau, Room 2 -C360; e -mail Royce.Sherlock @fcc.gov. 5. Marcia Glauberman, Media Bureau, Room 2 -C264; e -mail Marcia.Glauberman @fcc.gov. 6. Julie Salovaara, Media Bureau, Room 2 -C262; e -mail Jnlie.Salovaara @fcc.gov. 7. Wayne McKee, Media Bureau, Room 4 -C737; e -mail Wayne. McKee @fcc.gov. 8. Jim Bind. Office of General Counsel, Room 8 -C824; e -mail James.Bird @fcc.gov. 9. Jeff Tobias. Wireless Telecommunications Bureau, Room 3-A432; c-mail Jeff.Tobi,-ts@fcc.gov. 10. JoAnn Lueanik, International Bureau.. Rootil6-A660;e-iiiaiiJoAnti.Lticanik@fcc.gov. I.I. Kimberly Jackson, Wire line Competition Bureau, Room 5 -C142; e -mail Kimberly.Jackson @fcc.gov. Copies of the applications and any subsequently filed documents in this matter may be obtained from Best Copy and Printing, Inc., Portals II, 445 12 °i Street, SW, Room CY -B402, Washington, D.C. 20554, telephone 1- 800 -378 -3160, or via -e -mail www.bcoiweb.cont: The applications and any associated, :documents are also available for public inspection and copying during normal reference room hours at the following Commission office: FCC Reference Information Center, 445 12 "i Street, S.W.; Room CY -A257, Washington, D.C. 20554. The applications are also available electronically through the Commission's ECFS, which may be accessed on the Commission's Internet website at http:www.fcc.gov. Additional information regarding the transaction will be available on the FCC's Office of General Counsel's . website, hup:www.fcc.gov/ogc, which will contain a fully indexed, unofficial listing and electronic copies of all materials in this docket. Alternate formats of this public notice (computer diskette, large print, audio recording, and Braille) are available to persons with disabilities by contacting Brian Millin at (202) 41.8 -7426 (voice), (202) 418 -7365 (TTY), or send an e-mail to access(a Icc.gov. For further information, contact Barbara Esbin, (202) 418 -7200, Royce Sherlock, (202) 418 - 2330, or Julie Salovaara, (202) 418 -0783. Press inquiries should be directed to Rebecca Fisher, (202) 418 -2359, of the Media Bureau. TTY: (202) 418 - 7172 or (888) 835 -5322. -FCC- " The street address for all Commission staff is 445 1.2" Street, S.W., Washington, D.C. 20554. 0 0 j i 100.2056) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 3 August 23, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport - beach.ca.us SUBJECT: Resolution 2005 - Authorizing the City Manager to Reject Documents relating to the Transfer of Adelphia's Franchise to either Time Warner or Comcast ISSUE: How should the City best protect the community's interest as the pending transfer of cable assets from Adelphia to Time Warner (or Comcast) unfolds? RECOMMENDATION: Adopt Resolution 2005- authorizing the City Manager (or his designee) to reject one or more Federal Communications Commission (FCC) forms relating to the transfer of one of the City's cable franchises. DISCUSSION: Background: Adelphia Communications has held a franchise to operate a cable system in about 60% of the community for the past several years. Previous to Adelphia's arrival, Comcast held the franchise over the same territory. The City's franchises are non - exclusive, meaning that any cable company can request a franchise agreement, enter the Newport Beach market, build a cable system, and solicit customers. This kind of direct competition between cable companies for the same customers is rare, because of the large initial investment required to lay a cable system alongside an existing system. Remember that the "plant" in the ground is the property of each cable system - it's not city nor public property. Resolution RelatingOAdelphia- Time Warner Transfer August 23, 2005 Page 2 Cox communications holds a franchise for the roughly 40 %e of the city not served by Adelphia. Here is our most recent data on how many subscribers each company has in Newport Beach: In April of 2005, Time Warner Inc. and Comcast Corp. agreed to acquire Adelphia Communications Corp. for $17.6 billion through a deal with Adelphia's creditors. Adelphia, based in Colorado, was one of the largest U.S. cable operators, with more than 5.3 million customers in 31 states, In 2002, the company filed for bankruptcy. In 2004, Adelphia founder and CEO John Rigas and son (and CFO) Timothy Rigas were convicted of fraud and other charges. Adelphia is now run by a management team led by Chairman and CEO William Schleyer, a longtime cable executive. In June 2005, the Federal Communications Commission (www.fcc.gov) received a submittal by Time Warner and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, Time Warner, because TW will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent (via what's called a Form 394) to approve the Adelphia to Time Warner switch and to allow Time Warnerto step into the current franchise agreement that Adelphia holds. For your information, the current franchise agreements with both Adelphia and Cox have expired, and the agreements are on "holdover' status. Our special cable counsel (Bill Marticorena of Rutan and Tucker) has advised the City to seek renewal under the City's terms when the ultimate buyer of Adelphia has taken title to Adelphia's assets. Months ago, 'the Telecommunications Committee and the City Council prepared and approved a document that serves as the City's negotiating platform, provided that there is an entity with which to negotiate franchise renewals. I Newport Beach Cable* Sheet August 11 # of cable drops in Franchise Area 31,123 13,900 45,023 # of cable TV subscribers 16,978 10,100 27,078 % of cable drops who take cable 55 % 73% 60% -- 1999 (Calendar Year) $ 656,558 $ 266,671 $ 923,229 - -2000 $ 722,714 $ 280,602 $ 1,003,316 -- 2001 '$ 705,709 $ 395,824 $ 1,1.01,533 - -2002 $ 714,762 $ 394,732 $ 1,109,494 - -2003 $ 640,330 $ 470,404 $ 1,110;734 --2004 $ 766,343 $ 494,411 $ 1,260,753 -- 2005 (to dale, includes 40? Q'04) $ 411;480 $ 402,014 $ 813,494 In April of 2005, Time Warner Inc. and Comcast Corp. agreed to acquire Adelphia Communications Corp. for $17.6 billion through a deal with Adelphia's creditors. Adelphia, based in Colorado, was one of the largest U.S. cable operators, with more than 5.3 million customers in 31 states, In 2002, the company filed for bankruptcy. In 2004, Adelphia founder and CEO John Rigas and son (and CFO) Timothy Rigas were convicted of fraud and other charges. Adelphia is now run by a management team led by Chairman and CEO William Schleyer, a longtime cable executive. In June 2005, the Federal Communications Commission (www.fcc.gov) received a submittal by Time Warner and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case, Time Warner, because TW will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent (via what's called a Form 394) to approve the Adelphia to Time Warner switch and to allow Time Warnerto step into the current franchise agreement that Adelphia holds. For your information, the current franchise agreements with both Adelphia and Cox have expired, and the agreements are on "holdover' status. Our special cable counsel (Bill Marticorena of Rutan and Tucker) has advised the City to seek renewal under the City's terms when the ultimate buyer of Adelphia has taken title to Adelphia's assets. Months ago, 'the Telecommunications Committee and the City Council prepared and approved a document that serves as the City's negotiating platform, provided that there is an entity with which to negotiate franchise renewals. I ® Resolution Relating to4elphia -Time Warner Transfer August 23; 2005 Page 3 Mr. Marticorena has also advised us to adopt the attached resolution. The resolution allows the City Manager or Mr. Marticorena to respond directly to the issues presented in the Form 394 and to reject all or certain aspects of the Time Warner to Adelphia transfer if Marticorena believes that documents, actions, or facts associated with the proposed transfer raise concerns. Committee Action: None. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave 'f Assistant City Manager Attachments: Resolution 2005 - Document from the FCC Website regarding transfers 3 Resolution RelatingOAdelphia- Time Warner Transfer August 23, 2005 Page 4 RESOLUTION 2005= A RESOLUTION OF THE CITY COUNCIL OF THE CITY NEWPORT BEACH, CALIFORNIA DELEGATING AUTHORITY TO THE CITY MANAGER TO REJECT ONE OR MORE FCC FORMS 394 RELATING TO THE TRANSFER OF THE CABLE TELEVISION FRANCHISE, AND /OR CONTROL THEREOF, TO AN ENTITY CONTROLLED BY TIME WARNER CABLE OR COMCAST CORPORATION WHEREAS, the City of Newport Beach (the "City') has received one or more FCC Forms 394 (collectively, the "Application ") requesting consent of the City Council to the assignment of the Cable Television Franchise granted to Adelphia Communications (the "Franchisee "), or control thereof, to an entity ultimately controlled by Time Warner Cable or Comcast Corporation; WHEREAS, the City Council of the City has determined that the public interest is served by delegating to the City Manager, or said individual designated by the City Manager in writing, the authority to deny and reject the Application without prejudice for certain reasons and upon certain grounds. NOW, THEREFORE, the City Council of the City of Newport Beach, California, does hereby resolve as follows: Section 1: The City Manager, or his /her written designee, is hereby delegated the authority to reject the Application, or any portion thereof, without prejudice for one or more of the following reasons: 1. Failure to timely provide any "additional information required by the terms of the Franchise Agreement or applicable state or local law "; 2. Failure to timely provide any other requested additional information; 3. Failure on the part of the Applicant to timely cooperate with Staff, its attorneys and consultants, in performing due diligence relating to the Application, the legal, technical, and financial qualifications of the proposed Transferee and /or the impact of the transaction upon cable television rates and /or services; 4. Failure to timely cure any outstanding breach of franchise prior to or as an express condition of approval of the transaction in a manner acceptable to the City Manager; 5. Failure to timely execute. and deliver a Transfer Agreement acceptable as to form and substance by the City Manager; `7 Y • Resolution Relating toelphia- Time Warner Transfer August 23, 2005 Page 5 6. Failure to demonstrate the legal, technical and financial qualifications of the Transferee; 7. Failure to provide a written financial guarantee, acceptable as to form and substance by the City Manager, of the legal entity(s) for which financial disclosure was provided in the Application of and /or additional filings; and 8. Filing FCC Forms 394 providing for potentially different Transferees. Section 2. The decision of the City Manager, pursuant to the authority delegated and provided by this Resolution, shall be made in writing and shall be deemed, without further action of the City Council, to constitute an act of the Franchising Authority within the meaning of 47 C.F.R. § 76.502 and a "final decision" of the City Council within the meaning of §§ 617(e) of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 103 -385, 106 Stat. 1477 (1992). Section 3. Any denial, disapproval, or rejection issued pursuant to the authority of this Resolution shall be deemed "without prejudice" to the ability of the Applicant to file another FCC Form 394 relating to the same or a different transaction. However, nothing herein shall limit the authority of the City Council, the City Manager, or his /her written designee, to reject any subsequent FCC Form 394 based upon the same grounds set forth in the written notice of denial or such other grounds as might exist in relation to said future FCC Form 394. PASSED and ADOPTED by the City Council of the City of Newport Beach at a regular meeting held on the 23`d day of August, 2005. Signed: JOHN HEFFERNAN Mayor of Newport Beach ATTEST: LaVonne Harkless City Clerk of the City of Newport Beach J 0 0 PUBLIC NOTICE Federal Communications Commission 445 12th St., S.W. Washington, D.C. 20554 MEDIA BUREAU ACTION News Media Information 2021418 -0500 Internet: http:llwww:fcc.gov TTY: 1- 888 - 875 -5722 DA 05 -1591 Released: June 2, 2005 ADELPHIA COMMUNICATIONS CORPORATION, DEBTOR -IN- POSSESSION, TIME WARNER INC. AND COMCAST CORPORATION SEEK APPROVAL TO TRANSFER CONTROL AND /OR ASSIGN FCC AUTHORIZATIONS AND LICENSES M13 Docket No. 05 -192 PLEADING CYCLE ESTABLISHED Comments /Petitions Due: July 5, 2005 Responses /Oppositions to Petitions Due: July 20, 2005 On May 18; 2005, Adelphia Communications Corporation ( "'Adelphia "), Time Warner Inc. ( "Time Warner') and Comcast Corporation ( "Comcast ") (collectively, "Applicants ") submitted joint applications to the Commission seeking consent to transfer control of and /or assign various Commission licenses and authorizations pursuant to Section 214 and 310(d) of the Communications Act of 1934.' The proposed license transfers and assignments are associated with a'series of transactions ( "Transactions ") that when completed will effectuate the sale of certain cable systems and assets of Adelphia and its affiliates and related entities to subsidiaries or affiliates of Time Warner; the sale of certain cable systems and assets of Adelphia to subsidiaries or affiliates ofComeast; the exchange of certain cable systems and assets between affiliates or subsidiaries of Time Warner and Comcast; and the redemption ofComcast's 1 See 47 U.S.C. §§ 214,310(d); Applications for Consent to the Assignment andior Transfer of Control of Licenses, Adelphia Communications Corporation, Assignors, to Time Warner Cable Inc., Assignees; Adelphia 'Communications Corporation, Assignors and Transferors, to Comcast Corporation, Assignees and Transferees; Comcast Corporation, Transferor; to Time Warner Inc., Transferee; Time Warner Inc„ Transferor, to Comcast Corporation. Transferee,. Applications and Public Interest Statement ( "Application "), M13 Docket No. 05-192 (flied May 18, 2005). interest in Time Warner Cable Inc. ( "Toile Warner Cable ") and Time Warner Entertainment Company, L.P. ( "TWE ").' The proposed Transactions involve a series of agreements whereby Time Warner Cable and Conncast separately will acquire various cable systems that, in the aggregate, comprise substantially all of the domestic cable systems owned or managed by Adelphia for a total of$12.7 billion in cash. Adelphia provides cable service to approximately five million subscribers, making it the fifth largest cable television company and the seventh largest multichannel video programming distributor ( "MVPD ") in the United States.' Comcast is the nation's largest MVPD and will remain so upon completion ofthe Transactions. Today, Comcast states that it serves approximately 26.1 million subscribers in 35 states and the District of Columbia, or 28.2% of MVPD subscribers nationwide.' Time Warner Cable states that it owns or manages cable systems serving 13.1 million cable subscribers in 27 states, making it the nation's second largest cable operator and third largest MVPD.S As part ofthe initial phase of the overall transaction, in accordance with separate purchase agreements, Time Warner NY Cable (TWNY), a wholly -owned subsidiary of Time Warner Cable„ and Comcast will each acquire a portion of substantially all ofthe cable systems owned or operated by Adelphia (the "Adelphia transactions "). Time Warner Cable will pay $9.2 billion in cash and issue common shares totaling 16% of Time Wanner Cable's outstanding common equity to Adelphia stakeholders. Comcast will pay $3.5 billion in cash. Each of the Adelphia transactions is conditioned upon contemporaneous consummation of the other. The Adelphia transactions are not dependent on the occurrence ofthe additional system swaps and redemption transactions between Time.. Warner Cable and Conncast. Upon consummation ofthe Adelphia transactions, Time Warner Cable and Comcast will exchange certain cable systems owned by affiliates of Time Warner or Comcast, respectively, together with certain cable systems to be acquired in the Adelphia transactions. In the exchange transactions; Time Warner Cable will receive current Comcast systems located in or around Los Angeles, California; Cleveland', Ohio; and Dallas, Texas, and systems currently owned by Century -TC1 California Communications, L.P., in the Los Angeles area, and by Parnassus Communications,. L.P. and Western Cablevision, L.P., in Ohio and western New York. Comcast will receive Time Warner's current cable . systems serving portions of Philadelphia, Pennsylvania and certain systems currently owned by Adelphia located in California, Colorado, Connecticut, Florida, Georgia, Kentucky, Massachusetts, Maryland, z A complete list of the licenses and authorizations field by Adelphia, Time Warner and Comcast and subject to the filed applications inset forth in the Attachment and Appendix. Adelphia's subscriber: count: includes subscribers, served by several joint ventures with Comcast: the Century-TCI Joint Venture and the Parnassus Joint Ventures. Adelphia also serves: subscribers through joint ventures with Tele- Media Corporation of Delaware. Comcast estimates there are 92.6 million MVPD subscribers nationwide (citing Kagan Media Money, April 26, 2005, at 7). Approximately 21.5 million subscribers are served by Comcast's wholly owned systems; approximately 4.6 million are served by systems owned jointly by Comcast and other cable operators. These include systems jointly owned with Time Warner. which serve approximately 1.5 million subscribers. This total includes subscribers served by systems owned jointly with other cable operators, including systems co- owned. with Comcast that serve 1,5 million Subscribers, and systems ownedjointly with the Time Warner Entertainnneuit- AdvancelNewhouse Partnership ( "TWE -AM "). TWE -A(N owns systems serving 5.1 million subscribers, of which systems serving 2.9 million subscribers are managed by Time Warner. The rennaining 2:2 mil lion TWE -A!N subscribers are served by systems managed by Bright House Networks,.. an affil iateof Advance/Newhouse. These systems are attributable to Time Warner Cable. 7 • • North Carolina, New Ilampshire, New York, . Pennsylvania, Tennessee, Virginia, Vermont, Washington and West Virginia. Also upon consummation of the Adelphia transactions, Time Warner Cable and Comcast will execute two Redemption Agreements. First, Time Warner Cable will redeem Comcast's 17.9% equity interest in Time Warner Cable, currently held in an FCC- mandated trust, in exchange for 100% of the common stock of a Time Warner Cable subsidiary that ultimately will own various cable systems, .plus approximately $1.9 billion in cash and.600,000 subscribers. Second, TWE will redeem Comcast's 4.7% limited partnership interest in TWE in exchange for approximately $133 million in cash, 150;000 subscribers and 100% ofthe membership' interests of a Limited Liability company that will own various Time Warner Cable systems. Finally, upon consummation of the Adelphia transactions, certain FCC licenses held by Adelphia will be assigned (or control transferred) to Comcast, its subsidiaries or affiliates, and other Adelphia FCC licenses will be assigned to subsidiaries or affiliates of Time Warner Cable. In addition, upon consummation ofthe Time Warner /Comcast exchange agreements. control of certain subsidiaries or affiliates of Time Warner Cable or Comcast, respectively, holding FCC licenses (including certain FCC licenses acquired from Adelphia), will be transferred From Time Warner to Comcasl or from Comcast to Time Warner. Upon consummation ofthe redemption agreements between Comcast and Tinie Warner Cable and TWF., certain FCC licenses will be assigned First to a newly formed Time Warner Cable subsidiary on a pro;[oiaua basis, and then control of the new entity will be transferred from Time Wainer to Comcast- The Applications seek consent for those various assignments and/or transfers of control. Comcast states that upon completion of the Transactions, it will serve approximately 26,8 million subscribers, or 28,9% of MVPD subscribers e Time Warner Cable slates that, as a result of the Transactions, will add 3.5 million basic video subscribers. in total serving 16.6 million basic subscribers nationally, or 17.9 % of MVPD subscribers. Time Warner Cable expects to emerge as the second largest MVPD in the United States. Also, upon completion of the Transactions; Time Warner Cable will become a publicly traded company. Time Warner will hold 84% of the common stock and 91% of the voting control of Time Warner Cable. Adelphia stakeholders collectively will hold the remaining 16% of common stock of Time. Warner Cable. CX PARTC STATUS OF THIS PROCEEDING Because this proceeding involves broad public policy issues, the proceeding will be treated as "permit but disclose" for purposes ofthe Commission's ex parlerules. Seegenerally 47 C.F.R. §§ 1.1200 - L7216. Should circumstances warrant, this proceeding or any related proceeding may be designated as restricted. As a result ofthe pennit- but- disclose status of this proceedings expartepresentations will be governed by the procedures set forth in Section 1'1206 of the Commission's rides applicable to non- restricted proceedings. Approximately 23.3 million ofthesesubscribers will beserved by wholly owned systems, and 3.5 million will be served by systems owned jointly with others. Although Comcast expects to add approximately 1.8 million wholly owned subscribers through the Transactions, its total number of subscribers set ved. through jointly owned systems will decrease by approximately I::1 million, fora net increase of 680,OOO subscribers, or 0.73 % of MVPD subscribers. ' An ex pine presentation is any communication (spoken or written) directed to the merits or outcome of a proceeding -made to a Commissioner, a Commissioner's assistant, or oilier decision - making staff member; that, if written, is not served on other parties to the proceeding or, if oral, is made without an opportunity for all parties to be present. See 47 C.F.R. § 1.1201. ,'i Parties making oral ea paste presentations are directed to the Commission's statement re- emphasizing the public's responsibility in permit- but - disclose proceedings and are reminded that memoranda summarizing the presentation must contain the presentation's substance and not merely list the subjects discussed.' More than a one - or two- sentence description of the views and arguments presented is generally required.° We urge parties to use ECFS to file ex parte submissions.10 GENERAL INFORMATION The applications for transfer of control of the licenses and authorizations referenced herein, upon initial review,: have been accepted for filing. The Commission reserves the right to return any application if, upon further examination, it is determined to be defective and not in conformance with the Commission's rules, regulations, or policies. Interested parties must file comments or petitions to deny no later than July 5. 2005. Persons and entities that file comments or petitions to deny become parties to the proceeding. They may participate fully in the proceeding, including seeking access to any confidential information that may be filed under a protective order, seeking reconsideration of decisions, and filing appeals of a final decision to the courts. Responses or oppositions to such pleadings must be filed no later than July 20, 2005. All filings concerning matters referenced in this Public Notice should refer to MB Docket No. 05 -192, as well as the specific file numbers of the individual applications or other matters to which the filings pertain (unless the filings pertain to all applications). Under the Commission's current procedures for the submission of filings and other documents, submissions in this Gutter may be filed electronically (i.e., through ECFS) or by hand delivery to the Commission's Massachusetts Avenue location. If filed by ECFS, continents shall be sent as an electronic file via the Internet to hllpi:/ /www.fcc.gov /e- file/ecfs.litntl. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e -mail comments, commenters should send an e-mail to ecfs @fcc.gov; and should include the following words in the body of the message, "get forni<your e-mail address >." A sample form and directions will be sent in reply. If filed by paper, the original and four copies of each filing must be filed by hand or messenger delivery, by commercial overnight courier, or by first -class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger - delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue. N.E., Suite 1 10, Washington, D.C. 20002. The filing hours at this location are 5:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber hands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service 9 See Commission Ewpbasices the Public's Responsibilities in Permit -But-. .Disclose Proceeclings, Public Notice, FCC 00- 358,.15 FCC Red 19945 (2000): See 47 C.F.R. § 1.1206(b)(2), as revised. Other rules pertaining to oral and written presentations are set Section 1.1206(b) as well. 0 See "General Information" section. • Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first -class mail, Express Mail, and Priority Mail should be addressed to 445 12 °' Street, S.W., Washington, D.C. 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. In addition, one copy of each pleading must be sent to each of the following: 1. The Commission's duplicating contractor, Best Copy and Printing, Inc., Portals 11, 445 12't' Street, S.W., Room CY -13402, Washington, DC 20554,. telephone 1 -.800- 378 -3160, or via ,e -mail at www.bcoiweb.com; 2. Barbara Esbin, Media Bureau, Room 3 -0458, e -mail, Barbara.Esl)ln @fcc.gov." 3. Tracy Waldon, Media Bureau Room 3 -C488; e -mail Tracy.Waldon @icc,gov. 4. Royce Sherlock, Media Bureau, Room 2 -C360; e -mail Royce.Sherlock@fec.gov. 5. Marcia Glaubernian, Media Bureau, Room 2 -C264; e -snail Marcia.Giaubeionan @fcegov. 6. Julie Salovaina, Media Bureau, Room 2 -C262; e-mail Julie.Salovaara @fcc.gov. 7. Wayne McKee, Media, Bureau, Room 4- C737,; e -mail Wayne.McKee @fcc.gov. 8. Jim Bird. Office of General Counsel, Room 8 -C824; a -mail James.Bird @fcc.gov. 9. Jeff "robins, Wireless Telecommunications Bureau. Room 3 -A432; e -mail Jeff."fobias @fcc.gov. 10. JoAnn Lucanik. International Bureau, Room 6 -A660; e -mail JoAnn.Lucanik @fcagov.. 1.1. Kimberly Jackson, Wireline Competition Bureau, Room 5 -CI42; e -mail Kimberly.Jackson @fcc.gov. Copies of the applications and any subsequently tiled documents in this matter may be obtained from Best Copy and Printing Inc., Portals 11, 445 12 °i Street, SW, Room CY -13402, Washington, D.C. 20554, telephone 1- 800 - 378 - 3160, or via -e -mail www.bcuiweb.com. The applications and any associated documents are also available for public inspection and copying during normal reference room hours at the following Commission office: FCC Reference Information Center, 445 12 °i Street, S.W., Room CY -A257, Washington, D.C. 20554. The applications are also available electronically through the Commission's ECFS, which may be accessed on the Commission's Internet website at http:www >fcc.gov. Additional information regarding the transaction will be available on the FCC's Office of General Counsel's website, http:www.fcc.gov /ogc, which will contain a fully indexed, unofficial listing and electronic copies of all materials in this docket. Alternate formats of this public notice (computer diskette, large print, audio recording, and Braille) are available to persons with disabilities by contacting Brian Millin at (202) 418 -7426 (voice), (202) 418 -7365 (TTY), or send an e -mail to access(c)fcc.sov. For further information, contact Barbara Esbin, (202) 418 -7200, Royce Sherlock, (202) 418 -2330, or Julie Salovaara, (202) 418 -0783. Press inquiries should be directed to Rebecca. Fisher, (202) 418 -2359, of the Media Bureau. TTY: (202) 418 -7172 or (888) 835 -5322. -FCC- The street address for all Commission staff is 445 12 °i Street; S.W.; Washington, D.C. 20554. E • ! CLA a-/ loo -0,005) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 17 October 25, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COU W FROM: City Manager's Office QC a i l Dave Kiff, Assistant City Manager 9491644 -3002 or dkiff @city.newport- beach.ca,us SUBJECT: Repeal of Resolution 2005 -48 authorizing the City Manager to Reject Documents relating to the Transfer of Adelphia's Franchise to either Time Warner or Comcast ISSUE: Should the City Council reconsider its September 13, 2005 decision to adopt a resolution (Resolution 2005 -48) authorizing the City Manager or his designee to reject documents relating to the proposed transfer of Adelphia's cable television franchise to Time Warner or Comcast? RECOMMENDATION: Repeal Resolution 2005 -48. DISCUSSION: Background: Adelphia Communications has held a franchise to operate a cable system in about 60% of the community for the past several years. Previous to Adelphia's arrival, Comcast held the franchise over the same territory. The City's franchises are non - exclusive, meaning that any cable company can request a franchise agreement, enter the Newport Beach market, build a cable system, and solicit customers. This kind of direct competition between cable companies for the same customers is rare, because of the large initial investment required to lay a cable system alongside an existing system. Remember that the "plant" in the ground is the property of each cable system - it's not city nor public property. • Resolution Relating to0elphia -Time Warner Transfer October 25, 2005 Page 2 Cox communications holds a franchise for the roughly 40% of the city not served by Adelphia. Here is our most recent data on how many subscribers each company has in Newport Beach: In April of 2005, Time Warner Inc. and Comcast Corp. agreed to acquire Adelphia Communications Corp. for $17.6 billion through a deal with Adelphia's creditors. Adelphia, based in Colorado, was one of the largest U.S. cable operators, with more than 5.3 million customers in 31 states. In 2002, the company filed for bankruptcy. In 2004, Adelphia founder and CEO John Rigas and son (and CFO) Timothy Rigas were convicted of fraud and other charges. Adelphia is now run by a management team led by Chairman and CEO William Schleyer, a longtime cable executive. In June 2005, the Federal Communications Commission (www.fcc.gov) received a submittal by Time Warner and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case; Time Warner, because TW will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent (via what's called a Form 394) to approve the Adelphia to Time Warner switch and to allow Time Warner to step into the current franchise agreement that Adelphia holds. For your information, the current franchise agreements with both Adelphia and Cox have expired, and the agreements are on "holdover" status. Our special cable counsel (Bill Marticorena of Rutan and Tucker) has advised the City to seek renewal under the City's terms when the ultimate buyer of Adelphia has taken title to Adelphia's assets. Months ago; the Telecommunications Committee and the City Council prepared and approved a document that serves as the City's negotiating platform, provided that there is an entity with which to negotiate franchise renewals. 0 Newport Beach d , Fact Sheet August2OO5 Subscriber Total # of cable drops in Franchise Area 31,123 13,900 45,023 # of cable TV subscribers 16,978 10;100 27,078 % of cable drops who take cable 55% 73% 60 % Franchise Fee Revenue to City Adelphia Cox Total -- 1999. (Calendar Year) $ 656,558 $ 266;671 $ 923,229 --2000 $ 722,714 $ 280,602 $ 1,003,316 --2001 $ 705,709 $ 395,824 $ 1,101,533 --2002 $ 714,762 $ 394,732 $ 1,109,494 --2003 $ 640,330 $ 470;404 $ 1,110,734 --2004 $ 766,343 $ 494;411 $ 1,260,753 -- 2005 (to date, includes 4th Q '04) $ 411,480 $ 402,014 $ 813,494 In April of 2005, Time Warner Inc. and Comcast Corp. agreed to acquire Adelphia Communications Corp. for $17.6 billion through a deal with Adelphia's creditors. Adelphia, based in Colorado, was one of the largest U.S. cable operators, with more than 5.3 million customers in 31 states. In 2002, the company filed for bankruptcy. In 2004, Adelphia founder and CEO John Rigas and son (and CFO) Timothy Rigas were convicted of fraud and other charges. Adelphia is now run by a management team led by Chairman and CEO William Schleyer, a longtime cable executive. In June 2005, the Federal Communications Commission (www.fcc.gov) received a submittal by Time Warner and Comcast to jointly acquire (and transfer associated licenses and documents from) Adelphia. Part of the FCC process involves the companies' (in our case; Time Warner, because TW will take over Adelphia's west coast systems and Comcast will take its east coast systems) asking our consent (via what's called a Form 394) to approve the Adelphia to Time Warner switch and to allow Time Warner to step into the current franchise agreement that Adelphia holds. For your information, the current franchise agreements with both Adelphia and Cox have expired, and the agreements are on "holdover" status. Our special cable counsel (Bill Marticorena of Rutan and Tucker) has advised the City to seek renewal under the City's terms when the ultimate buyer of Adelphia has taken title to Adelphia's assets. Months ago; the Telecommunications Committee and the City Council prepared and approved a document that serves as the City's negotiating platform, provided that there is an entity with which to negotiate franchise renewals. 0 is Resolution Relating tPdelphia -Time Warner Transfer October 25, 2005 Page 3 Mr. Marticorena has also advised us to' adopt the attached resolution. The resolution allows the City Manager or his staff designee to respond directly to the issues presented in the Form 394 and to reject all or certain aspects of the Time Warner to Adelphia transfer if the City Manager, upon obtaining input from the Telecommunication Committee, believes that documents, actions, or facts associated with the. proposed transfer raise concerns. Council Member Daigle has asked that the City Council reconsider the September 13, 2005 adoption of this resolution. Ms. Daigle believes that the resolution grants a power to city staff that the council should retain. Committee Action: None. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: m A - Dave Ci Assistant City Manager Attachment: Resolution 2005 -48 • RESOLUTION NO. 2005- 48 A RESOLUTION OF THE CITY COUNCIL OF THE CITY NEWPORT BEACH, CALIFORNIA DELEGATING AUTHORITY TO THE CITY MANAGER TO REJECT ONE OR MORE FCC FORMS 394 RELATING TO THE TRANSFER OF THE CABLE TELEVISION FRANCHISE, AND /OR CONTROL THEREOF, TO AN ENTITY CONTROLLED BY TIME WARNER CABLE. OR COMCAST CORPORATION WHEREAS, the City of Newport Beach (the "City ") has received one or more FCC Forms 394 (collectively, the "Application ") requesting consent of the City Council to the assignment of the Cable Television Franchise granted to Adelphia Communications (the "franchisee "), or control thereof, to an entity ultimately controlled by Time Warner Cable or Comcast Corporation; WHEREAS, the City Council of the City has determined that the public interest is served by delegating to the City Manager, or a City staff member individual designated by the City Manager in writing and with the consultation of the Telecommunications Committee, the authority to deny and reject some or all of the Application without prejudice for certain reasons and upon certain grounds. NOW, THEREFORE, the City Council of the City of Newport Beach, California, does hereby resolve as follows: Section 1: The City Manager, or a City staff member so designated by the City Manager, is hereby delegated the authority to reject the Application, or any portion thereof, without prejudice for one or more of the following reasons: 1. Failure to timely provide information required by the terms of the Franchise Agreement or applicable state or local law; 2. Failure to timely provide any other requested additional information necessary to analyze the proposed transfer for compliance with or the transferee's ability to comply with the City's Franchise Agreement and Cable Ordinance; 3. Failure on the part of the Applicant to timely cooperate with Staff, its attorneys and consultants, in performing due diligence relating to the Application, the legal, technical, and financial qualifications of the proposed Transferee and /or the impact of the transaction upon cable television rates and /or services; 4. Failure to timely cure any outstanding breach of franchise prior to or as an express condition of approval of the transaction in a manner acceptable to the City Manager; Ll t� 0 5. Failure to timely execute and deliver a Transfer Agreement acceptable as to form and substance by the City Attorney; 6. Failure to demonstrate the legal, technical and financial qualifications of the Transferee; Failure to provide a written financial guarantee, acceptable as to form and substance by the City Manager, of the legal entity(s) for which financial disclosure was provided in the Application of and/or additional filings; and 8. Filing FCC Forms 394 providing for potentially different Transferees. If the City Manager, or his or her staff designee, determines that a rejection of all or parts of the Application is in the best interest of the city's subscribers, the City Manager shall present findings to the Telecommunications Committee and seek the Committee's advice in this regard. Section 2. The decision of the City Manager, pursuant to the authority delegated and provided by this Resolution, shall be made in writing and shall be deemed, without further action of the City Council, to constitute an act of the Franchising Authority within the meaning of 47 C.F.R. § 76.502 and a "final decision" of the City Council within the meaning of §§ 617(e) of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L.No. 103 -385, 106 Stat. 1477 (1992). Section 3. Any denial, disapproval, or rejection issued pursuant to the authority of this Resolution shall be deemed "without prejudice" to the ability of the Applicant to file another FCC Form 394 relating to the same or a different transaction. However, nothing herein shall limit the authority of the City Council, the City Manager, or the City staff member so designated by the City Manager, to reject any subsequent FCC Form 394 based upon the same grounds set forth in the written notice of denial or such other grounds as might exist in relation to said future FCC Form 394. PASSED and ADOPTED by the City Council of the City of Newport Beach at a regular meeting held on the 13`" day of September, 2005. ATTEST: ALI r Ma Uo • f LION May 25, 2004 Aon Commercial Surety Services One Liberty Place Philadelphia, PA 19103 SUBJECT: Adelphia Communications Corporation — New Travelers Replacement Bond In order to ensure compliance with applicable surety requirements, we have enclosed a rider that changes the effective date on the recently received Travelers Casualty and Surety Company of America bond from June 20' to June 16'h, 2004. We understand that Hanover Insurance Company sent cancellation notice in conjunction with Adelphia's old program and this rider coincides with the terns on that cancellation notice. We also appreciate your prompt execution and return of the required release previously sent with the original bond. Receipt of this release by the end of June is greatly appreciated. Should you have any questions or concerns, please don't hesitate to give me a call at (215) 255- 1721. Sincerely, Aon Commercial Surety Services Mary C. O'Leary Director, Surety Operations Aon Surety Fax: 215- 255 -1978 RIDER To be attached to and form part of: Bond Number 104310707 dated 6/24/2004 issued by the TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA in the amount of $50;000.00 on behalf of ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC (Principal) and in favor of CITY OF NEWPORT BEACH (Obligee) Now therefore, it is agreed that in consideration of the premium charged, the attached bond shall be amended as follows: The Effective Date shall be amended: FROM: 6/24/2004 TO: 6/16/2004 It is further understood and agreed that all other terms and conditions of this bond shall remain unchanged. This Rider is to be effective this 16`h day of June, 2004. Signed, Sealed & Dated this 251h day of May, 2004. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELEMhCASUALTY AND SURETY COMPANY OF RICA TRWLERS CASUALTY AND SURETY COMP FARMINGTON CASUALTY COMPANY Hartford, Connecticut 06183-9062 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S) -IN-FACT KNOW ALL PERSONS BY THESE PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, corporations duly organized under the laws of the State of Connecticut, and having their principal offices in the City of Hartford, County of Hartford, State of Connecticut; (hereinafter the "Companies ") hath made, constituted and appointed, and do by these presents make, constitute and appoint: Darella White, Richard G. Dicciany Richard A. Jacobus, Neil C. Donovan, Mary C. O'Leary, Douglas R. Wheeler, Annette M. Leuschner, Maureen McNeill, of Philadelphia, Pennsylvania, their true and lawful Attorney(s) -in -Fact, with full power and authority hereby conferred to sign, execute and acknowledge, at any place within the United States, the following instrument(s): by his/her sole signature and act, any and all bonds, recognizances, contracts of indemnity; and other writings, obligatory in the nature of abond, recognizance, or conditional undertaking and any and all consents incident thereto and to bind the Companies, thereby as fully and to the same extent as if the same were signed by the duly authorized officers of the Companies, and all the acts of said Attorney(s) -in -Fact, pursuant to the authority herein given, are hereby ratified and confirmed. This appointment is made under and by authority of the following Standing, Resolutions of said Companies, which Resolutions are now in full force and effect: VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President,. the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant.. Secretary may appoint Attomeys -in -Fact and Agents to act for and on behalf of the company and may give such appointee such authority as his or her certificate of authority may prescribe to .sign with the Company's name and seal with the Company's seal bonds,.recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her. VOTED :. That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed, in the office of the Secretary. VOTED: That any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking - shall be valid and binding upon the Company when (a) signed by the President, my Vice Chairman, any Executive Vice President any Senior Vice President or any Vice President any Second Vice President the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal, if required) by one or more Attomeys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority. This Power of Attorney and Certificate of Authority is signed and sealed by facsimile (mechanical or printed) under and by authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, which Resolution is nowin full force and effect: VOTED: That the signature of each of the following officers: President any Executive Vice President any Senior Vice President, any Vice President any Assistant Vice President any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident. Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in' the nature thereof, and any such power rof attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal ..shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. Revised (01 -03) Standard Travelers IMPORTANT DISCLOSURE NOTICE OF TERRORISM INSURANCE COVERAGE On November 26, 2002, President Bush signed into .law the Terrorism Risk Insurance Act of 2002 (the "Act"). The Act establishes a short -term program under which the Federal Government will share in the payment of covered losses caused by certain acts of international terrorism. We are providing you with this notice to inform you of the key features of the Act, and to let you know what effect, if any, the Act will have on your premium. Under the Act, insurers are required to provide coverage for certain losses caused by international acts of terrorism as defined in the Act. The Act further provides that the Federal Government will pay a share of such losses. Specifically, the Federal Government will pay 90% of the amount of covered losses caused by certain acts of terrorism which is in excess of Travelers' statutorily established deductible for that year. The Act` also caps the amount of terrorism - related losses for which the Federal Government or an insurer can be responsible . at $100,000,000,000.00, provided that the insurer has met its deductible. _ Please note that passage of the Act does not result in any change in coverage under the attached policy or bond (or the policy or bond being quoted). Please also note that no separate additional Premium charge has been made for the terrorism coverage required by the Act. The premium charge that is al ocable to such coverage is inseparable from and imbedded in your overall Premium, and is no more than one percent of your premium. • • K= May 25, 2004 Aon Commercial Surety Services One Liberty Place Philadelphia, PA 19103 SUBJECT: Adelphia Communications Corporation —New Travelers Replacement Bond In order to ensure compliance with applicable surety requirements, we have enclosed a rider that changes the effective date on the recently received Travelers Casualty and Surety Company of America bond from June 24h to June 16th, 2004. We understand that Hanover Insurance Company sent cancellation notice in conjunction with Adelphia's old program and this rider coincides with the terms on that cancellation notice. We also appreciate your prompt execution and return of the required release previously sent with the original bond. Receipt of this release by the end of June is greatly appreciated. Should you have any questions or concerns, please don't hesitate to give me a call at (2'15) 255- 1721. Sincerely, Aon Commercial Surety Services 1 Mary C. O'Leary Director, Surety' Operations Aon Surety Fax: 215 -2'55 -1978 0 0 RIDER To be attached to and form part of'. Bond Number 104310706 dated 6/24/2004 issued by the TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA in the amount of $100,000.00 on behalf of ADELPHI A CABLEVISION OF NEWPORT BEACH, LLC (Principal) and in favor of CITY OF NEWPORT BEACH (Obligee) Now therefore, it is agreed that in consideration of the premium charged, the attached bond shall be amended as follows: The Effective Date shall be amended: FROM: 6/24/2004 TO: 6/16/2004 It is further understood and agreed that all other terms and conditions of this bond shall remain unchanged. This Rider is to be effective this 16th day of June, 2004. Signed, Sealed & Dated this 251h day of May, 2004. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELS CASUALTY AND SURETY COMPANY OF A ERICA - TR LERS CASUALTY AND SURETY COMPAi ARNDNGTON CASUALTY COMPANY Hartford, Connecticut 06193 -9062 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S) -IN -FACT KNOW ALL PERSONS BY THESE PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, corporations duly organized under the laws of the State of Connecticut, and having their principal offices in the City of Hartford, County of Hartford, State of Connecticut, (hereinafter the "Companies ") hath made, constituted and appointed, and do by these presents make; constitute and appoint: Darella White, Richard G. Dieciani, Richard A. Jacobus, Neil C. Donovan, Mary C. O'Leary, Douglas R Wheeler, Annette_IVL Leugchner, Maureen McNeill, of Philadelphia, Pennsylvania, their true and lawful Attorney(s) -in -Fact, with full power and authority hereby conferred to sign, execute and acknowledge, at any place within the United States, the following instrument(s): by his/her sole signature and act, any and all hands, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto and to bind the Companies, thereby as fully and to the same extent as if the same were signed by the duly authorized officers of the Companies; and all the acts of said Attomey(s) -in -Fact, pursuant to the authority herein given, are hereby ratified and confirmed. This appointment is made under and by authority of the following Standing Resolutions of said Companies, which Resolutions, are now in full force and effect: VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer; any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-iii-Fact and Agents to act for and on behalf of the company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's.. name and seal with the Company's seal bonds, recognizances, contracts of indemnity; and other writings obligatory in the nature of a bond, recognizance; or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her. VOTED: That the Chairman, the President; any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, . provided that each such delegation is in writing and copy thereof is filed in the office of the Secretary. VOTED: That any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal, if requited) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed' in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority. This Power of Attorney and Certificate of Authority is signed and sealed by facsimile (mechanical or printed) under and by authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON, CASUALTY COMPANY, which Resolution is now in full force and effects VOTED: That the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attomeys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof,: and any such power of attorney or certificate bearing such facsimile signature of facsimile seal shall be valid and binding upon the Company and say such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. Revised (01 -03) Standard • Travelers IMPORTANT DISCLOSURE NOTICE OF TERRORISM INSURANCE COVERAGE On November 26, 2002, President Bush signed into law law the Terrorism Risk Insurance Act of 2002 (the "Act'). The Act establishes a short -term program under which the Federal Government will share in the payment of covered losses caused by certain acts of international terrorism. We are providing you with ..this notice to inform you of the key features of the Act, and to let you know what effect, if any, the Act will have on your premium. Under the Act, insurers are required to provide coverage for certain losses caused by international acts of terrorism as defined in the Act. The Act further provides that the Federal Government will pay . a share of such losses. Specifically, the. Federal Government will pay 90% of the amount of covered losses caused by certain acts of terrorism which is in excess of Travelers' statutorily established deductible for that year. The Act` also caps the amount of terrorism- related losses for which the Federal Government or an insurer can be responsible at $100,000,000,000.00, provided that the insurer has 'met its deductible. Please note that passage of the Act does not result in any change in coverage under the attached policy or, bond (or the policy or bond being quoted). Please also note that no separate additional premium charge has been made for the terrorism coverage required by the Act. The premium charge that is allocable to such coverage is inseparable from and imbedded in your overall premium, and is no more than one percent of your premium. 421! ALLMERICA FINANCIAL"� HANOVERINSURANCE® HANO VER INSURANCE COMPANY 7130 Glen Forest Drive, Suite 400 a Richmond, VA 23226 NOTICE OF CANCELLATION City of Newport Beach P.O. Box 1768 BLR- 1679236 Newport Beach, CA 92658 WHEREAS, on or about the 21st day of March 2001, The Hanover Insurance Company as Surety, executed its bond in the penalty of Fifty Thousand 00/100 Dollars ($50.000.00) on behalf of Adelphia Cablevision of Newport Beach, LLC of Main at Water Street. Coudersport, PA 15279 as Principal, in favor of City of Newport Beach as Obligee, (Nature of Risk) CA TVFranchise Bond WHEREAS, said bond, by its terms, provides that the said Surety shall have the right to terminate its obligations thereunder by serving notice of its election so to do upon the said Obligee, and WHEREAS, said Surety desires to take advantage of the terms of said bond and elects to terminate its lability in accordance with the provisions thereof. NOW, THEREFORE, . The Hanover Insurance Company shall at the expiration. of jkktE (30) days after receipt of this notice be released and forever discharged from any and all liability for all known and unknown claims, which the Obligee may assert against the Surety, under the above- referenced bond. Signed and dated this 17th of Mav, 2004. HANO VER INSURANCE COMPANY Donna M. Lipscombe cc: Adelphia Communications Franey Muha Alliantlnsurance Services 44n ALLMERICA FINANCIAL®® HANOVER INSURANCE® w...1 t .. HANOVER INSURANCE COMPANY 7130 Glen Forest Drive, Suite 400 N, Richmond, VA 23226 NOTICE OF CANCELLATION City of Newport Beach P.O. Box 1768 BLR- 1679237 Newport Beach, CA 92658 WHEREAS, on or about the 21st day of March 2001, The Hanover Insurance Company as Surety. executed its bond in the penalty of One Hundred Thousand 00/100 Dollars ($100,000.00) on behalfofAdelphia Cablevision of Newport Beach: LLC of Main at Water Street, Coudersport, PA 15279 as Principal, in favor of City of Newport Beach as Obligee, (Nature of Risk) CA TV Franchise Bond WHEREAS, said bond, by its terms, provides that the said Surety shall have the right to terminate its obligations thereunder by serving notice of its election so to do upon the said Obligee; and WHEREAS, said Surety desires to take advantage of the terms of said bond and elects to terminate its liability in accordance with the provisions thereof. NOW THEREFORE, The Hanover Insurance Company shall at the expiration of Thirty LLOLdays after receipt of this notice be released and forever discharged from any and all liability for all known and unknown claims, which the Obligee may assert against the Surety, under the above- referenced bond. Signed and dated this 17th of Mav, 2004: HANOVER INSURANCE COMPANY Donna M Lipscomb cc: Adelphia Communications Franey Muha Allant Insurance Services ECEIf<flEn it Aon Commercial Surety Services One Liberty Place Philadelphia, PA 19103 SUBJECT: Adelphia Letter dated 4/16/04 — Filing of new surety bond In accordance with the letter sent to you on or about April I6'h, 2004 from our client, Adelphia, we hereby submit for filing the attached Travelers Casualty and Surety Company of America bond. This bond replaces and exonerates the existing Hanover Insurance Company bond currently on file. Also enclosed, please find a release document which requires an acceptance signature. 'Please returned the signed document to Aon at your earliest convenience; a self - addressed envelope has been included for your use. If a bond is no longer required, please also return the original Travelers Casualty and Surety Company of America bond in the enclosed envelope with the signed release. Thank you in advance for your prompt attention to this matter. if you should have any questions or if I may be of further assistance, please do not hesitate to call me at 215- 255 - 1721. Sincerely, Aon Commercial Surety Services Mary C. O'Leary Director, Surety Operations Aon Surety Fax: 215 -255 -1978 SURETY BOND RELEASE TO THE HANOVER INSURANCE COMPANY WHEREAS, The Hanover Insurance Company ("Hanover "), as surety, issued Bond No. 1679236, dated 3 /21/2001, on behalf of ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC, as principal, in favor of CITY OF NEWPORT BEACH', as obligee ("Obligee"), in the current amount of $50,000 (said bond as same may have been thereafter amended by rider or otherwise hereinafter referred to as the "Existing Bond "); and WHEREAS, Obligee has accepted a bond issued by another surety in replacement of the Existing Bond; or, upon expiration of the Existing Bond; has accepted a new bond issued by another surety; or has otherwise determined that it no longer desires to retain any rights or protections under the Existing Bond; and NOW, THEREFORE, Obligee hereby releases and forever discharges, Hanover, its affiliates, subsidiaries, successors and assigns; as surety, of any and all claims; demands and liabilities of any kind or nature whatsoever, in law or in equity, whether known or unknown, contingent or liquidated, monetary or otherwise, and no matter when accruing, which Obligee ever had, now has or which it or its successors or assigns hereafter can, shall or may have under the Existing Bond and /or arising out of or related to the agreements or obligations referred to in the Existing Bond. Obligee waives any notice of cancellation, termination or other notice of any kind; whether set forth in the Existing Bond; under statute or regulation, or otherwise. By signing below, the individual executing this Release on behalf of Obligee represents and warrants that he/she is duly authorized by the Obligee to bind Obligee to all of the terms and conditions of this Surety Bond Release. DATED this %� day of 5 uM 12004. S E of ) ss. COUNTY of \ 1 CITY OF NEWPORT BEACH By. �" Namel D VE KIFF Title: USSISTANT CITY MANAGER a On this _day of ; 00 ,before me personally appeared who is known to me, and acknowle a me on this day; that being informed of the contents of the foregoing Surety Bond Release, that he /she to said instrument voluntarily, and that he/she is duly authorized to execute said instrument on behalf o e. IN WITNESS WHEREOF, I have hereunto set my hand an ed my OFFICIAL SEAL the day and year first above written. (Signature of Notary Public) Notary Public, residing at My commission expires 0 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of b+i't,.,^ On �5v'vtc 5 1 9,)09 before me, oab ! � rma a orcwa fe.g.: •Jere ooe. Notaty.PUbF personally appeared 1) C.0 Q- kL' CA I HY FISHER Commission #7341009 € ..� Notary Public- Califomia Orange county My Conmi. Bpres Feb 21 , 2 00 Ns'M'j M signagsl personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(o whose name(36 is re subscribed to the within instrument and acknowledged to me that hG she/they executed the same in is. er /their lhorized capacity(i); and that by is /. er/their signature on the Instrument the person0g), or the entity upon behalf of which the person( acted, executed the instrument. IT SS my hand and o� I seal. Bgaal a1 e1aryP„pn� 1 ' OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document Ls�-�t'kj Document Date: 3VV'�� ' r )'l) "LA Number of Pages: t Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual • Corporate Officer — Title(s): • Partner — ❑ Limited ❑ General • Attorney -in -Fact • Trustee • Guardian or Conservator • Other: Signer RIs TTHUMBPRINT OR SIGNEn, 01999 National Notary Aaso r0iG - W3 ce Soto Ave.,. P.O. Boti 2402 - Civ..;M. CA 913132402 www.naiionalnolaty org PmC. W, W7 Re vr.. Cell Toll Free 1E 76 6927 • FRANCHISE BOND Bond Number 104310707 • TNVeier3 Casualty and Surety Company of America One Tower Square, Hartford, CT 06183 KNOW ALL MEN BY THESE PRESENTS, That, we, ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC as Principal, and Travelers Casual and Surety Company of America, a corporation of the State of Connecticut, as Surety; are held and firmly bound unto CITY OF NEWPORT BEACH;POBOX 1768, Newport Beach, CA 92658 as Obligee, in the sum of Fifty Thousand and 001100 Dollars, ($_.50,000.00 ) lawful money of the United States of America, to be paid unto said Obligee, its successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the above bound Principal has entered into a written agreement dated , with the Obligee, which grants a Franchise to the Principal for use of its public streets and places to transmit and distribute electrical impulses through an open tine - coaxial antenna system located therein. Principal has agreed to faithfully perform and observe and fulfill all terms and conditions of said Franchise agreement referred to above and said agreement is hereby made a part of this bond with like force and effect as if herein set forth in length. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the above named Principal, its successors or assigns, does and shall well and truly observe; perform and fulfill its obligation as set forth in the above mentioned Franchise agreement, for which a bond must be posted, then the above obligation to be void; otherwise to remain in full force and effect. The bond is subject, however, to the following express conditions: FIRST: That in the event of a default on the part of the Principal, its successors or assigns, a written statement of such default with full details thereof shall be given to Surety promptly, and in any event, within thirty (30) days after the Obligee shall learn of such default, such notice to be delivered. to Surety at its Home Office in Hartford, Connecticut by registered. mail. SECOND: That no claim, suit or action under this bond by reason of any such default shall be brought against Surety unless asserted or commenced Within (12) twelvemonths after the effective date of any termination or cancellation of this bond. THIRD: That this bond' may be terminated or canceled by Surety by 30 days prior notice in writing to Principal and to Obligee, such notice to be given by certified mail. Such termination or cancellation shall not affect any liability incurred or accrued under this bond prior to the effective date of such termination or cancellation The liability of the Surety shall be limited to the amount set forth above and is not cumulative. FOURTH:' That no right of action shall accrue under this bond to or for the use of any person other than the Obligee, and its successors and assigns. FIFTH: That this bond replaces Hanover Bond # 1679236 , including all past, present & future liability. Having accepted this bond, the Obligee hereby releases and forever discharges the Hanover Insurance Company, its affiliates, successors and assigns, as Surety; of any and all liability and /or obligation under Bond # 1679236 that the Obligee has now or may obtain in the future on any claim it has asserted in the past or may in the future assert under said bond, whether said claim be known or unknown', whether monetary or otherwise, and whether under contract or otherwise. IN WITNESS WHEREOF, the above bound Principal and the above bound Surety have hereunto set their hands and seals on the 24th day of June , 2004 ADELPHIA CABLEVISION OF NEWPORT BEACH. LLC By: 17ZAO /:�F� — Christine Morris, Vice president and Treasurer Travelers Casualty and Surety Company of America By: Gar , A � Susan A. Welsh , Attomey -in -Fact TRAVORS CASUALTY AND hURETY COMPANY AMERICA TRAVELERS CASUALTY AND SURETY COMPANY FARMINGTON CASUALTY COMa°ANY Hartford, Connecticut 06153 -9062 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEYS) -IN -FACT KNOW ALL PERSONS BY TI:ESE . PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY. corporations duly organizedunder the laws of the State of Connecticut; and having their principal offices in the City of Hartford, County of Hartford, State of Connecticut, (hereinafter the "Companies ") bath made, constituted and appointed, and do by these presents make, constitute and appoint Thomas J. Joslin, Karen Daniel, Kathleen J. Mailes, Linda Iser, Sandra Martinez, Susan A. Welsh, Susan J. Preiksa, Geoffrey E. Heekin, Marcia K Cesafsky, Daniel R. Smith, Patricia M. Doyle, of Chicago / Glenview, Illinois, their true and lawfid Attomey(s) -in -Fact, with full power and authority hereby conferred to sign, execute and acknowledge, at any place within the United States, the following instrument(s): by his/her sole signature and act, any and all bonds, recognizances, contracts of indemnity,. and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto and to bind the Companies, thereby as fully and to the same extent as if the same were signed by-the duly authorized officers of the Companies, and all the acts of said Attomey(s) -in -Fact, pursuant to the, authority herein,given, are hereby ratified and confirmed, This appointment is made under and by authority of the following Standing Resolutions of said Companies, which Resolutions are now in full force and effect: VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attomeys -in -Fact and Agents to act for and on behalf of the company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the dature of bond, . recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her. VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary. VOTED: That any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed. (under seal, if required) by one or more Attomeys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority. This Power of Attorney and Certificate of Authority is signed and. seabed by facsimile (mechanical or printed) under and by authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA,, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, which Resolution is now in full force and effect: VOTED: That the signature of each of the following officers: President, any Executive- Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attomeys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate beating such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so •executed and certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. E gave M 0 IMPORTANT DISCLOSURE NOTICE OF TERRORISM INSURANCE COVERAGE On November 26, 2002, President Bush signed into law the Terrorism Risk Insurance Act of 2002 (the "Act "). The Act establishes a short -term program under which the Federal Government will share in the payment of covered losses caused by certain acts of international terrorism. We are providing you with this notice to inform you of the key features of the Act, and to let you know what effect, if any, the Act will have on your premium. Under the Act, insurers are required to provide coverage for certain losses caused by international acts of terrorism as defined in the Act. The Act further provides that the Federal Government will pay a share of such losses. Specifically, the Federal Government will pay 90 % of the amount of covered losses caused by certain acts of terrorism which is in excess of Travelers' statutorily established deductible for that year. The Act also caps the amount of terrorism - related losses for which the Federal Government or an insurer can be responsible at $100,000,000,000.00, provided that the insurer has met its deductible. Please note that passage of the Act does not result in any change in coverage under the attached policy or bond (or the policy or bond being quoted). Please also note that no separate additional premium charge has been made for the terrorism coverage required by the Act. The premium charge that is allocable to such coverage is inseparable from and imbedded in your overall premium, and is no more than one percent of your premium. 0 41 ATTACHMENT TO SURETY BOND Attachment A Christine Morris has signed the foregoing bond in her capacity. as Vice President and Treasurer of the corporate entity holding an ownership interest in the principal. LION -,p? MAY24 D Aon Commercial Surety Services One Liberty Place Philadelphia, PA 19103 SUBJECT: Adelphia Letter dated 4/16/04 — Filing of new surety bond In accordance with the letter sent to you on or about April 16`h, 2004 from our client, Adelphia, we hereby submit for filing the attached Travelers Casualty and Surety Company of America bond. This bond replaces and exonerates the existing Hanover Insurance Company bond currently on file. Also enclosed, please find arelease document which requires an acceptance signature. Please returned the signed document to Aon at your earliest convenience; a,self- addressed envelope has been included for your use. If a bond is no longer required, please also return the original Travelers Casualty and Surety Company of America bond in the enclosed envelope with the signed release. Thank you in advance for your prompt attention to this matter. If you should have any questions or if I may be of further assistance, please do not hesitate to call me at 215 - 255 -1721. Sincerely, Aon Commercial Surety Services Mary C. O'Leary Director, Surety Operations Aon Surety Fax: 21.5- 255 -1978 SURETY BOND RELEASE TO THE HANOVER INSURANCE COMPANY WHEREAS, The Hanover Insurance Company ( "Hanover"), as surety, issued Bond No. 1679237, dated 3/21/2001, on behalf of ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC, as principal, in favor of CITY OF NEWPORT BEACH, as obligee ( "Obligee "), in the current amount of $100,000 (said bond as same may have been thereafter amended by rider or otherwise hereinafter referred to as the "Existing Bond "); and WHEREAS, Obligee has accepted a bond issued by another surety in replacement of the Existing. Bond; or, upon expiration of the Existing Bond, has accepted a new bond issued by another surety; or has otherwise determined that it no longer desires to retain any rights or protections under the Existing Bond; and NOW, THEREFORE, Obligee hereby releases and forever discharges, Hanover, its affiliates, subsidiaries, successors and assigns, as surety, of any and all claims, demands and liabilities of any kind or nature whatsoever, in law or in equity, whether known or unknown, contingent or liquidated, monetary or otherwise, and no matter when accruing, which Obligee ever had, now has or which it or its successors or assigns hereafter can, shall or may have under the Existing Bond and/or arising out of or related to the agreements or obligations referred to in the Existing Bond. Obligee waives any notice of cancellation, termination or other notice of any kind; whether set forth in the Existing Bond, under statute or regulation, or otherwise. By signing below, the individual executing this Release on behalf of Obligee represents and warrants that he/she is duly authorized by the Obligee to bind Obligee to all of the terms and conditions of this Surety Bond Release.. DATED this Z�l day of �{w e 2004. kstwll: ) ss.. CITY OF NEWPORT BEACH Byi c Names AVE RIFF Tit1eASSISTANT CITY MANACFR COUNTY of r ��� �J� I IJ V J ��� • ` On this day of Nh before m personally appeared 9P tS who is known to me, and ore me on this day, that being informed of the contents of the foregoing Surety Bond Rec ed said instrument voluntarily, and that he /she is duly authorized to execute said instrument on beh Obligee. IN WITNESS WHEREOF, I have hereunto set my ha d f ed my OFFICIAL SEAL the day and year first above written. (Signature of Notary Notary Public, residing at My commission expires • CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of 'l_\ OnJ� beforeme, Date ,..1 � � Name eM iNe of 0lricer (e.g.,'Jane Noe. Noury PuDM1C�� personally appeared CATHY FISHER Commission 11341 W9 i Notary Public - Califomis Orange County 0MYCorr". Expires Feb2i,2006 personally known to me O proved to me on the basis of satisfactory evidence to be the person("g whose name(} is re subscribed to the within instrument and acknowledged to me the he he /they executed the same in his er /their uthorized capacity(i4), and that by his er /their signatureN on the instrument the person(, or the entity upon behalf of which the person(` acted, executed the instrument. MTNESS my hand and official seal. s"J.. o d NOlary PUWic OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons reying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type. of Document: �'- Document Date: �t^^ Number of Pages: Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top olthu bW. ❑ Corporates Officer — Title(s): 11 Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator 0 Other: Signer Is Representing: S T1 0 .1999 Na W Notary A6 afion - 9350 4 Som Ave.. P0,Box 2402 . Cb Ss h. CA 91313 -2402 - w .nalbmn ougv g Prod W. 5907 Ra M., Call T.11 Free 1 89Q876S 27 • FRANCHISE BOND Bond Number 104310706 Travelers Ce sualty and Surety Company of America One Tower Square, Hartford, CT 06183 KNOW ALL MEN BY THESE PRESENTS, That, we, ADELPHIA CABLEVISION OF NEWPORT BEACH; LLC as Principal, and Travelers Casualty and Suretv Company of America, a corporation of the State of Connecticut, as Surety, are held and firmly bound. unto CITY OF NEWPORT BEACH, PO BOX 1768, Newport Beach, CA 92658 as Obligee, in the sum of One Hundred Thousand and 00/100 Dollars, ($ 100,000.00 ) lawful money of the United States of America, to be paid unto said Obligee, its successors and assigns, jointly and severally, firmly by these presents. WHEREAS', the above bound Principal has entered into a written agreement dated , with the Obligee, which grants a Franchise to the Principal for use of its public streets and places to transmit and distribute . electrical impulses through an open line - coaxial antenna system located therein. Principal has agreed to faithfully perform and observe and fulfill all terms and conditions of said Franchise agreement referred to above and said agreement is hereby made a part of this bond with like force and effect as if herein set forth in length. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the above named Principal, its successors or assigns, does and shall well and truly observe, perform and fulfill its obligation as set forth in the above mentioned Franchise .agreement, for which a bond must be posted, then the above obligation to be void; otherwise to remain in full force and effect. The bond is subject, however, to the following express conditions: FIRST:. That in the event of a. default on the part of the Principal, its successors or assigns, a written statement of such default with full details thereof shall be given to Surety promptly, and in any event, within thirty (30) days after the Obligee shall learn of such default, such notice to be delivered to Surety at its Home Office in Hartford, Connecticut by registered mail. SECOND: That no claim, suit or action under this bond by reason of any such default shall be brought against Surety unless asserted or commenced within (12) twelve months after the effective date of any termination or cancellation of this bond. THIRD: That this bond may be terminated or canceled by Surety by 30 days prior notice in writing to Principal and to Obligee, such notice to be given by certified mail. Such termination or cancellation shall not affect any liability incurred or accrued under this bond prior to the effective date of such termination or cancellation. The liability of the Surety shall be limited to the amount set forth above and is not cumulative. FOURTH: That no right of action shall accrue under this bond to or for the use of any person other than the Obligee, and its successors and assigns. FIFTH: That this bond replaces Hanover Bond # 1679237 , including all past, present & future liability. Having accepted this bond, the Obligee hereby releases and forever discharges the Hanover Insurance. Company,' its affiliates; successors and assigns, as Surety, of any and all liability and /or obligation under Bond # 1679237 that the Obligee has now or may obtain in the future on any claim it has asserted in the past or may in the future assert under said bond, whether said claim be known or unknown, whether monetary or otherwise, and whether under contract or otherwise. IN WITNESS WHEREOF, the above bound Principal and the above bound Surety have hereunto set their hands and seats on the 24th day of June , 2004 . ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC BY C Christine Morris, Vice President and TreaRM Travelers Casualty and Surety Company of America By: Q.6�,,.� 0, ( epi "C' Susan A. Welsh , Attorney -in -Fact TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELERS CASUALTY AND SURETY COMPANY FARMINGTON CASUALTY COMPANY Hartford, Connecticut 06183-062 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S)-]N-FACT KNOW ALL PERSONS BY THIESS .PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY; corporations duly organized under the laws of the State of Connecticut, and having their principal offices in the City of Hartford, County of Hartford, State of Connecticut,. (hereinafter the "Companies') path made, constituted and appointed, and do by these presents make, constitute and appoint: Thomas J. Joslin, Karen Daniel, Kathleen J. Mailes, Linda Iser, Sandra Martinez, Susan A. Welsh„ Susan J. Preiksa, Geoffrey E. Heekin, Marcia K. Cesafsky, Daniel R. Smith, Patricia M. Doyle, of Chicago / Glenview, Illinois, their true and lawful Attorney(s)-in-Fact, with full power and authority hereby conferred to sign, execute and acknowledge, at anyplace within the United States, the following instrument(s): by his/her sole signature and act, any and all bonds, recogaizances, contracts of indemnity,_and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto and to bind the Companies, thereby as fully and to the same extent as if the same were.signed by -the duly authorized officers of the Companies, and all the acts of said Attomey(s) -in -Fact, pursuant to the authority herein given, are. hereby ratified and confirmed, - , This appointment is made under and by authority of the following Standing Resolutions of said Companies, which Resolutions are now in full force and effect: i VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attomeys -in -Fact and Agents to act for and on behalf of the company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds,.recognizances, contracts of indemnity, and other writings obligatory in,. the nature of abond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her. VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President.. or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and acopy thereof is filed in the office of the Secretary. VOTED: That any bond, recognizance; contract of indemnity, or writing obligatory in the nature of bond, recognizance; or conditional undertaking shall he valid, and binding upon the Company when (a) signed by the President, any Vice Chairman; any Executive Vice President, any Senior Vice. President .. or any Vice President, any Second Vice President, the 'treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and seated with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal, if required) by one or more Attomeys -in -Fact and Agents pursuant .. to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a. written delegation of authority. This Power of Attorney and Certificate of Authority is signed and sealed by facsimile (mechanical or printed) under and by authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, which Resolution is now in full force and effect. VOTED: That the signature of each of the following officers; President,: my Executive- Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary; and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident. Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting . bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature. or facsimile seal shall be valid .:and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company, in the future with respect . to any bond or undertaking to which it is attached. !� —mo Travelers' IMPORTANT DISCLOSURE NOTICE OF TERRORISM INSURANCE COVERAGE On November 26, 2002, President Bush signed into law the Terrorism Risk Insurance Act of 2002 (the "Act "). The Act establishes a short-term program under which the Federal Government will share in the payment of covered losses caused by certain acts of international terrorism. We are providing you with this notice to inform you of the key features of the Act, and to let you know what effect, if any, the Act will have on your premium. Under the Act, insurers are required to provide coverage for certain losses caused by international acts of terrorism as defined in the Act. The Act further provides that the Federal Government will pay a share of such losses. Specifically, the Federal Government will pay 90% of the amount of covered losses caused by certain acts of terrorism which is in excess of Travelers' statutorily established deductible for that year. The Act also caps the amount of terrorism- related losses for which the Federal Government or an insurer can be responsible at $100,000,000,000.00, provided that the insurer has met its deductible.' Please note that passage of the Act does not result in any change in coverage under the attached policy or bond (or the policy or bond being quoted). Please also note that no separate additional premium charge has been made for the terrorism coverage required by the Act. The premium charge that is allocable to such coverage is inseparable from and imbedded in your overall premium, and is no more than one percent of your premium. ATTACHMENT TO SURETY BOND Attachment A Christine Morris has signed the foregoing bond in her capacity as Vice President and Treasurer of the corporate entity.holding an ownership interest in the principal. 10 OVER INSURANCE COMPA Vi.- ^ 7130 Glen Forest Drive, Suite 400 z V! E C E! y t, D Richmond, VA 23226 ACE � C NDING TIME FOR C�AND ELLATION� ' - 16 GF'FiCE OF THr CITY tiLERt CI r .fir °.1V4` qT BEACH BY FIRST CLASS MAIL City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 Bond No.: BLR- 1679237 You were previously sent a notice of cancellation stating that the bond issued by Hanover Insurance Company securing the CATV Franchise Bond agreement with Adelphia Communications Corporation or its subsidiary and/or affiliate would be cancelled Thirty (30) days after the date of such notice. Adelphia and certain of its subsidiaries and affiliates are now debtors in Chapter ] l proceedings pending in the Southern District of New York. Adelphia contests the manner in which the notice was given as well as the effectiveness of the notice of cancellation. Hanover and Adelphia are engaged in negotiations aimed at resolving the question of the cancellation of the bond and at attempting to reach agreement about keeping the bond in effect. Accordingly, Hanover has agreed to extend the time for cancellation pursuant to the cancellation notice until September 13, 2002. With respect to any liability accrued, the bond remains in effect until that date. You will receive further notice if an agreement is reached to keep the bond in place or if the bankruptcy court otherwise determines that the cancellation notice is not effective. Signed and dated this 1" day of August, 2002. ( --- N OVER INSURANCE COMPANY Deborah D. Allen l Date ( `0� cc: Adelphia Communications Corporation Franey, Parr & Muha, Inc. 72071 v Copies Sent To: ❑ Mayor ❑ Council Member ,,ErManager orney ('I iPnt# - '�IFR74 ADELNEWP ACORQ. CERTIFICA OF LIABILITY INSURONCE POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED By PAID CLAIMS. 06 /12 /02 PRODUCER Wharton /Lyon & Lyon 101 S. Livingston Avenue Livingston, NJ 07039 [GENERAL LIABILITY THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGqHQT�Sg UPON THE CERTIFICATE ALTER HOLDER. AFFOH Bt L�li 7P , S BELOW. 05/16/03 EACH OCCURRENCE 973 99.2 -5775 FIRE DAMAGE(AnY One fire) INSURERS AFFORDING COVERAGE INSURED Adelphia Cablevision of Newport Beach, LLC Main @ Water Street Coudersport, PA 16915 '.$1 000 OUO INSURERA, INSURERS: Royal InsurantN 3 _ Liberty Mutual INSURER C: INSURER D: 911 r?C; Pr THE CITY CLERK 3F . i:4 BEACH INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POUCV PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED By THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED By PAID CLAIMS. NSR TYPE'OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS L R DATE MMIDDNY DATE • [GENERAL LIABILITY IP2TS465832 105/16/02 05/16/03 EACH OCCURRENCE $1 000, 000 FIRE DAMAGE(AnY One fire) JCr COMM ERCIAL GENERAL. LIABILITY '.$1 000 OUO CLAIMS MADE FxIOCCUR MED EXP(Ary One person) $10 000 PERSONAL & ADV INJURY _ S11 000. 000 GENERAL AGGREGATE $2 000, 000 GEN'L AGGREGATE LIM IT APPLIES PER: PRODUCTS +COMP/OP AGE $2 000 000 PO- POLICY D JET I X LOC • AUTOMOBILE LIABILITY % ANY AUTO P2TS465831 05/16/02 05/16,/03 COMBINED SINGLE LIMB (Eaamdem) Sl, GOO, OOO BODILY INJURY (Perpmon) '$ ALL OWNED AUTOS I SCHEDULED AUTOS BODILY INJURY (Per accident) X-1 1 HIRED AUTOS JC. : NON-OWNED AUTOS $ _ PROPERTY DAMAGE (Peraccident) $ 1 GARAGE LIABILITY AUTO ONLY , EA ACCIDENT S OTHER THAN EA ACC ANY AUTO S AUTO ONLY: AGG $ • EXCESS LIABILITY 'TH1641.004429 -012 05/16/02 xJ OCCUR n CLAIMS MADE 05/16/03 EACH OCCURRENCE $10 000 00_ AGGREGATE $1-0,00-0,00C $ DEDUCTIBLE $ 7L RETENTION $1 0, 000 • WORKERS COMPENSATION ONAND IP2 TC467018 05/16/02105/16/03 , EMPLOYERS' LIABILITY all states' WCSTATU OTW 7C y E.L. EACH ACCIDENT E1,0001000 IexC California E.L. DISEASE,EAEMPLOVEE Sl GOO, OOO I S l 000,000 E.L. DISEASE POLICY LIMB OTHER DESCRIPTION OF OPERATIONS ILOCATIONSNEHICLEStEXCLUSIONS ADDED BY ENDORSEMENIXPECIAL PROVISIONS Certholder included as additional insured for general liability ATIMA.. City of Newport Beach Attn: City Clerk P.O. Box 1768 Newport Beach, CA 92658 M103655 SHOULD ANVOFTHE ABOVE D ESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 64 _.DAYS WRITTEN NOTICETOTHE CERTIFICATE HOLD ER NAM ED TOTHE LEFT, BUT FAILURE TO DO SOSHALL IM POSE NO OBLIGATION OR LIABILITY OF ANY HIND UPON TH E INSURER.ITS AGENTS OR GHL 0 ACORD CORPORATION IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. AC0RD25- S(7/97).2 of 2 #S108265/M103655 E POLICY NUMBER P2TS465832 Royal Ins Co of America Insured: Adelphia Communications Corp Its subsidiaries and affiliates COMMERCIAL GENERAL LIABILITY CG 2010 03 97 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. e e • I IV Wow# ' q M-W#jrXqrjVWj, TWg M IDIe 1 ' e -90-LSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Iclr Name of Person or Organization: City of Newport Beach 3300 Newport Beach Blvd Newport Beach, CA 92658 -8925 (If no entry appears above, informatice required to Mete this endorsement will be shown in the Declarations as applicable to this endorsement.) Who is An Insured (Section 11) is amended to include as an inslned the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured. 44�r s�,' Ainhorized,Representative Date CG 2010 08 97 Page 1 of 1 Copyright, Insurance Services Office, Inc., 1996 Client #: 36874 ADELNEWP ACORQ CERTIFICA* OF LIABILITY INSU NCE COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR DATE Wharton /Lyon & Lyon 101 S. Livingston Avenue Livingston, NJ 07039 P LI V EFFECTIVE DATE MMIO THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE ALTER THEHCOVERAGE AR B T LCES BELOW. LIMITS A 973 992-5775 P2TS4.65832 INSURERS AFFORDING COVERAGE INSURED Adelphia Cablevision of Newport Beach, LLC Main @ Water Street Coudersport, PA 16915 EACH OCCURRENCE INSURERA: Royal Ins!4 c FIREDAMAGE(Mycnefim) INSURER B: Liberty Mutual' ' MEDEXP(AOyonepeMm) INSURER C: PERSONAL & ADV INJURY THE CITY NSURERC. GLCH C11Y'�'PC INSURER C. + s2,000, 000 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER P LI V EFFECTIVE DATE MMIO POLICY EXPIRATION DATE W N LIMITS A L LIABILITY MERCIAL GENERAL LIABILITY CLAIMS MADE LNJ OCCUR PGEN'L P2TS4.65832 05/16/02 05/16/03 EACH OCCURRENCE S1,000, 090 FIREDAMAGE(Mycnefim) $1 000 0.00 MEDEXP(AOyonepeMm) $10,00.0 PERSONAL & ADV INJURY $1,000, 000 GREGATE LIM ITAP PLIES PER: ICY 0 PEo- X LOC. GENERAL AGGREGATE s2,000, 000 PRODUCTS - COMPIOPAGG $2 OOO 000 AUTOMOBILE • X X 'X LIABILITY ANY AUTO ALL .OWNED AUTOS SCHEDULED AUTOS HIREDAUTOS NON- OWNEDAUTOS P2TS465831 05/16/02 05/16/03 COMBINED SINGLE LIMIT (Ea accident) $1 , 000,000 BODILY INJURY I(Par Person) $ BODILY INJURY (P"McImm) I$ PROPERTY' DAMAGE (Per ecciderrt) $. - GARAGE LIABILITY ANY AUTO AUTO ONLY • EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGO $ $ B EXCESS X UABIUTY OCCUR 0 CLAIMS MADE DEDUCTIBLE RETENTION $1 O O O O TH1641004429 -012 05/16/02 05/16/03 EACHOCCURRENCE $10,000,00 AGGREGATE $101000100( $ X $ A WORKERS COMPENSATION AND 'P2TC46701 -8 EMPLOVERS'DABILITY ',all States :eXc California j 05/1.6/02 05/16/03 lTnAY TA 71 DTH- E.L EACH ACCIDENT $1,000,000 E.L DISEASE- AEMPLOVEE$1 000,000 E.L DISEASE POLICY LIMIT $1 OOO 000 OTHER i I DESCRIPTION OF OPERATIONS /LOCAnONSNEMCLEMXCLUSIONS.ADDED BY ENDORSEMENTISPECIAL PROVISIONS Certholder included as additional insured for general liability ATIMA. SHOULD ANVOFTHE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORETHE EXPIRATION City of Newport Beach DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TOMAIL 6.O —DAYS WRITTEN Attn: City Clerk NOTICE TOTHE CERTIFICATE HOLDERNAMED TOTHE LEFT, BUTFAILURE TO DO BOSHALL P.O. BOX 1765 IM POSE NO OBLIGATION OR LIABILITY OF ANY ION D UPON THE INSURERJTS AGENTS OR Newport Beach, CA 92658 REPRESENTATIVES. 657/M103655 C'T�� /., % KXS IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing Insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORO2e- S(7/97)2 of 2 #S103657/M103655 r � " RECEIVED RIDER rot SEP 14 P2 56 OFFICE OF THE CITY CLERK CITY OF NEWPORT BEACH To be attached to and form a part of Bond No. 1679237 On behalf of Comcast Cablevision of Newport Beach, LLC dba Adelphia In favor of City of Newport Beach dated the 21st day of March , 2001. It is agreed that Effective March 21, 2001 the PrindpaYs name is amended to read: Adelphia Cablevision of Newport Beach, LLC Provided, however, that the liability of the Surety under the attached bond, and under the attached bond as changed by this rider, shall not be cumulative. All other conditions, agreements and limitations remain unchanged. Signed, sealed and dated this 27th day of ARrr_l 2001. 010 � ' �. with an inceptiorTdate after THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CERTIFIED COPY KNOW ALL MEN BY THESE PRESENTS. That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire do hereby constitute and appoint William G. Franey, Kenneth W. Roberts, John R. Muha, It, Brenda L. Patterson, Shirley A. Harkins, Michael S. Olive, Jeri L. Murrow and/or David R. Summerall of Capitol Heights, MD and each is a true and lawful Attomey(s)-min -fact to sign, execute, seal, acknowledge and deliver for, and on its behalf, and as its act and deed, at any place within the United States, or, if the following fine be filled in, orgy within the area therein designated any and all bonds, recognizanoes, undertakings, contracts of indemnity or other writings obligatory in the nature thereof; as follows: - Any such obligations in the United States, In any amount - And said companies hereby ratify and confirm all and whatsoever said Attorney(s) in -fact may lawfully do in the premises by virtue of these presents. These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which resolutions are stilt m effect -RESOLVED, That the President or any Vice President, in conjunction with any Assistant Vice President be and they we hereby authorized and empowered to appoint Attomeysdn -fact of the Company, in Its name and as as ads, to execute and acknowledge for and on Its behalf as Surely any and all bonds, recognizances, contracts of Indemnity, waivers of citation and all otherwdfmgs obligatory in the nature thereof, with power to attach thereto the sea] of the Company. Any such wri ings so executed by such Attomeys4n -fad shall . be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company In their own proper persons! (Adopted October 7, 1981 - The Hanover insurance. Company, Adopted April 14, 1962 - Massachusetts Bay Insurance Company) THE 14ANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY have Caused h their respective corporate seats, duty attested by a Vice President and an Assistant Vice Presigetl, Hris -4th day INSURANCE COMPANY 1972 Vice BAY TH LTN OF MASSACHUSETTS ) U COUNTY OF WORCESTER On this 4th day o f.1011111 rr �kli ry, re me came the above named Vice President and Assistant Vice President of The Hanover insurance Company end Id'115sQh g nos Company, to me personally known to be the Individuals and officers described herein, and acknowledged t,eaeais ing Instrument are the corporate seals of The Hanover Insurance Company and Massachusetts Bay Insuranc `.QZgQ2rry Kgjgy :the said corporate seals and their sign ures as officers were duly affixed and subscribed to said instrument b r�i}rga)!Al h aid Corporations. 1 BLXC' *1Z y (9ea1) off. -- ° Notary Pubfic ° » °'ttps My Commission Expires November 260 2004 1, the undersigned As�{ iittrresident of The Hanover Insurance Company and Massachusetts. Bay Insurance Company, hereby certify that the above and foregoing is a full; true and correct copy of the Original Power of Attorney issued by said Companies, and do hereby further certify that the said Powers of Attorney are still in force and effect. This Certificate may signed by facsimile under and by authority of the following resolution of the Board of Directors of The Hanover Insurance Company and Massachusetts Bay Insurance Company. 'RESOLVED. That any and all Powers of Attorney and Ceri fied.Copies of such Powers of Attorney and certification in respect thereto, granted and executed by the President or any Vice President in conjunction with any Assistant Vice President of the Company, shall be binding on the Company to the same extent as if all signatures therein were manually affixed, even though one or more of any such signatures thereon may be facsimile.' (Adopted October 7, 1981 - The Hanover Insurance Company, Adopted. April 14, 1982 - Massachusehs Bay Insurance Company) GIVEN under my hand and the seats of said Companies,. at Worcester, Massachusetts, this 27 day of April 120 Ol ---THE NOVER URANCE COMPANY MASS U3fNSURAri10EANY v! • RECEIVED RIDER 'Ol SEP 14 P2 56 OFFICE OF THE CITY CLERK CITY OF NEWPORT REACH To be attached to and form a part of Bond No. 1678952 On behalf of Comcast Cablevision of Newport Beach, LLC dba Adelphia Communications In favor of City of Newport Beach dated the la day of lanuaa 2001. It is agreed that: Effective February 15, 2001 the principal's name is amended to read: Adelphia Cablevision of Newport Beach, LLC Provided, however, that the liability of the Surety under the attached bond, and under the attached bond as changed by this rider, shall not be cumulative. All other conditions, agreements and limitations remain unchanged. Signed, sealed and dated this 27th day of fta 2001. Adelphia Cablevision of Newport Beach LLC Princa Power of Attomey mav1Wbe used to execute any bond THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CERTIFIED COPY KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire do hereby constitute and appoint William G. Franey, Kenneth W. Roberts, John R. Muha,11, Brenda L. Patterson, Shirley A. Harkins, Michael S. Olive, Jeri L Murrow and/or David R. Summerall of Capitol Heights, MD and each is a true and lawful Attomey(s) in -fact to sign, execute, 'seal, acknowledge and deliver for, and on its behalf, and as Its act and deed, at any place within the United States, or, If the following line be filled in, only within the area therein designated any and all bonds,. recognizanoes, undertakings, contracts of Indemnity or other writings obligatory in the nature thereof, as follows:' -Any such obligations in the United States, in any amount - And said companies hereby ratify and confirm all and whatsoever said Attorney(s)-min-fact may lawfully do in the premises by virtue of these presents. These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which resolutions are still in effect. 'RESOLVED. That the President or any Vice President, in conjunction with any Assistant Vice President, be an they are hereby autho&ed and empowered to appoint Attomeys4ri -fad of the Company, in its name and as its acts, to execute and acknowledge for and on behalf as Surety any and all bonds, iecognizances, contracts of indemnity, waivers of citation ant all other writings obligatory in the nature thereof, with power to attach thereto the seal of the Company. Any such writings so executed by such Attomeys4n4ad shall be as binding upon the Company as if they had been duty executed and acknowledged by the regularly elected officers of the Company in their own proper persons.' (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1982 - Massachusetts Bay Insurance Company) THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY have caused h their respective corporate seals, duly attested by a Vice President and an Assistant Vice Presi fti ,this 4th day me came ft above named Vice President and Assistant Vice President of The Hanover insurance Company, to me personafly known to be the individuals and officers described herein, and ceding instrument are the corporate seals of The Hanover Insurance Company and Massachusetts at the said corporate seals and their signatures as officers were duly affixed and subscribed to said aid Corporation. I My Commission Expires Novernber26, 2004 I, the undersigned Asb4309jK §idem of The Hanover Insurance Company and Massachusetts Bay Insurance Company, hereby certify that the above and foregoing is a full, true and correct copy of the Original Power of Attorney issued by said Companies, and do hereby further certify that the said Powers of Attorney are still in force and effect. This Certificate may be signed: by facsimile under and by authority of the following resolution of the Board of Directors of The Hanover insurance Company and Massachusetts Bay Insurance Company. 'RESOLVED, That any and an Powers of Attorney and Certified Copies of such Powers of Attorney and certification in respect thereto, granted and executed by the President or any Vice President in conjunction with any Assistant Vice President of the Company, shall be binding on the Company to the same extent as if an signatures therein were manually affixed, even though one or more of any such signatures thereon may be facsimile.' (Adopted October 7, 1981 - The Hanover insurance Company; Adopted April 14, 1982. Massachusetts Bay insurance Company) GIVEN under my hand and the seals of said Companies, at Worcester, Massachusetts, this 27 day of April 20 01 - ' -7H '.NOVERf URANCECOMPANY MASS USE SAY INSURANCE COMPANY A.ccisfanf Virp Prpridpnl a v:.... n..... :,r.. T • ` O RECEIVED rot SEP 14 P2 56 RIDER OFFICE OF THE CITY CLERK CITY Of NEWPORT BEACH To be attached to and form a part of Bond No. 1679236 On behalf of Comcast Cablevision of Newport Beach, LLC dba Adelphia In favor of City of _Newport Beach dated the 21st day of March • 2001. It is agreed that: Effective March 21, 2001 the Principal's name is amended to read: Adelphia Cablevisiorf of Newport Beach, LLC Provided, however, that the liability of the Surety under the attached bond, and under the attached bond as changed by this rider, shall not be cumulative. All other conditions, agreements and limitations remain unchanged. Signed sealed and dated this 27th day of Avril, 2001. The Hanover Insurance Compgan_y Q Ij This Power of Attorney mavWbe used to execute any bond with THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CERTIFIED COPY KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire do hereby constitute and appoint William G. Franey, Kenneth W. Roberts, John R. Muha,11,.Brenda L Patterson, Shirley A. Harkins, . Michael S. Olive, Jeri L. Murrowand /or David R. Summerall of Capitol Heights, MD and each is a true and lawful Aftomey(s )-in4act to sign, execute, seal, acknowledge and deliver for, and on its behalf, and as Its act and deed, at any place within the United States, or, if the following line be filled in, only within the area therein designated any and all bonds, recognizances, undertakings, contracts of indemnity or other writings obligatory in the nature thereof, as follows: - Any such obligations In the United States„ in amount - And said companies hereby ratify and confine all and whatsoever said Attomey(s)min -fad may lawfully do in the premises by virtue of these presents. These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which resolutions are still in effect: "RESOLVED, That the President or any Vice President, in conjunction with any Assistant Vice President, be and they are hereby authorized and empowered to appoint Attomeysin -fact of the Company, in its name and as its ads, to execute and acmowledge for and on its behalf as Surety arty and all bonds, teeognizances, contracts of indemnity, waivers : of citation and all other writings obligatory in the nature thereof, with power to attach thereto the seal of the Company. Any such writings so executed by such Attomeys4n4act shall be as binding upon the Company as'rfthey had been duly executed and acknowledged by the regularly elected officers of the Company in their own proper persons.' (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1982 - Massachusetts Bay Insurance Company) THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY have caused h their respective corporate seats, duly attested by a Vice President and an Assistant Vice Pres¢",,,Uris 4th day MMANK THM11111111111MEALTH OF MASSACHUSETTS J 1"1141W V COUNTY OF WORCESTER ) as. ttiilllfl - On this 4th day� �o�(,� -ru-Kary•-, fore me came the above named Vice President and Assistant Vice President of The Hanover Insurance Company and '�Oib�Y°41pMy, nee Company, to me personally known to be the individuals and officers described herein, and acknowledged t ,5fsals affizEd, ceding instrument are the corporate seals of The Hanover Insurance Company and Massachusetts Bay Instrranbr nM�yKejp at the said corporate seals and their signatures as officers were duly affixed and subscribed to said instrument `�i i74 id Corporations I y (Sgal) •�k $ Notary Public ipN"v',nuup''��� >�RN My Commission Expires November 26, 2094 I, the undersigned 'As�{4$>3tgsytles�`ident of The Hanover Insurance Company and Massachusetts Bay Insurance Company, hereby certify that the above and foregoing is a full, true and correct copy of the Original Power of Attorney issued by said Companies, and do hereby further certify that the said Powers of Attorney are still in force and effect,. This Certificate may signed by facsimile under and by authority. of the following resolution of the Board of Directors of The Hanover Insurance Company and Massachusetts Bay Insurance Company. 'RESOLVED, That any and all Powers of Attorney and Certified Copies of such Powers of Attorney and certification in respell thereto, ,granted and executed by the President or any Vice President in conjunction with any Assistant Vice Pmsidentof the Company, shall be binding on the Company to the same extent as if all signatures therein were manually affixed, even though one or more of any such signatures thereon may be facsimile." (Adopted October 7, 1981 - The Hanover Insurance Company;. Adopted April 14, 1982 - Massachusetts Bay insurance Company) GIVEN under my hand and the seals of said Companies, at Worcester, Massachusetts, this 27 day of April , 20 Ol --'THE ANOVER URANCE COMPANY MASS USETT4;I3AY INSURANCE COMPANY Assistant Vice President Client # - 3Fi874 A➢ELNEWP ACORU CERTIFICA ". _: OF LIABILITY GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE Fx]OCCUR INSUF. NICE 05/21 01 PRODUCER Wharton /Lyon & Lyon 101 S. Livingston Avenue g EACH OCCURRENCE THIS CERTIFICATE ONLY HOLDER. ALTER IS ISSUED AS A MATTER OF INFORMATION AND CONFERS NO RIGHTS UPON THE CERTIFICATE THIS CERTIFICATE DOES NOT AMEND, EXTEND OR THE COVERAGE AFFORDED BY THE POLICIES BELOW. Livingston, NJ 07039 MED EXP(Any one person) Is 10 000 PERSONAL & ADV INJURY 973 992 -5775 x 218 C LucasBate INSURERS AFFORDING COVERAGE INSURED Adelphia Cablevision of Newport Beach, LLC Main @ Water Street Coudersport, PA 16915 GEN% AGGREGATE IT APPLIES PER: POLICY PR0. X LOC SECT INSURER A: Royal Ins Co of America INSURERS: Royal Indemnity Co INSURERC: Liberty Mutual INSURER D:. PTT464040 INSURER E: 05/16/02 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THEPOLICV PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES: AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED By PAID CLAIMS. LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY fYY) LIMBS • GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE Fx]OCCUR PTV464039 05/16/01 05/16/02 EACH OCCURRENCE $1., 000,000 RRE GAM AGE (Any one lire) $1 0.00 0.00 MED EXP(Any one person) Is 10 000 PERSONAL & ADV INJURY $1 000, 000 GENERAL AGGREGATE $2 000 000 GEN% AGGREGATE IT APPLIES PER: POLICY PR0. X LOC SECT PRODUCE. OOMPIOP AGO $2 000 000 • AUTOMOBRELUIBIUTY X ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS PTT464040 05/16/01 05/16/02 COMBINED E1fINGLELIMIT $1, 000, 000 BODILY INJURY (Pwpgmi ) $. X BODILY INJURY (Per mdderM) $ X PROPERTY DAMAGE (Per eccidem) $ GARAGE LIABILITY ANY AUTO AUTO ONLY -EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AOG $ $ C' EXCESS LIABILITY OCCUR � CLAIMS MADE DEDUCTIBLE RETENTION s25,000 TH1641004429 05/16/01 05/16/02 EACH OCCURRENCE $10,000,00( X AGGREGATE $10 000, 00 $ X $ B. WORKERS COMPENSATION AND EMPLOYERS' UABIUTY OR & WI only RT0464037 RTC464038 05/16./0 '1 -05/16/02 OT WC STATU- H- X y IMI ER E.L. EACH ACCIDENT $110001 000 E.LDISEASE - EAEMPLOYEE $1 000 OOO E.L. DISEASE - POLICY LIMIT $1 000 000 OTHER DESCRIPTION OF OPERATK)NSAACATIONSIVEHICLE &EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS Certholder included as additional insured for general liability ATIMA. City of Newport Beach Attn: City Clerk P.O. Box 1768 Newport Beach, CA 92658 ACORD25- S(7197)1 of 2 #S85076/M85074 LD ANVOFTH E ABOVE D ESCRIBED POLICiESBECANCELLED BEFORE THE EXPIRATION THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 6.0._ DAYS WRITTEN E TOTHE CERTIFICATE HOLDER NAMED TOTHE LEFT, BUT FAILURE TO DO SOSHALL iE NO OBLIGATION OR LIABILITY OF ANY KIND UPON TH E INSUREMITS AGENTS OR RXV 9 ACORD CORPORATION 1988 ( IiPnI-U- '�rA74 ( rV7WDF3RAr ACORD CERTIFICAS OF LIABILITY INSUFONCE 03/23/01 PRODUCER Wharton /Lyon & Lyon THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMA71ON ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 101 S. Livingston Avenue g Livingston, NJ 07039 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. LIABILITY 973 992 -5775 INSURERS AFFORDING COVERAGE INSURED Comcast Cablevision of Newport Beach dba Adelphia Main @ Water Street Coudersport, PA 16915 INSURER#: American Home Assurance INSURERS: Ins Co State of Pennsylvania INSURERC:Illinois National Ins Co INSURERD: National Union Fire Ins INSURER E: [-I &]T /4-Ie1H*1 THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. NSR TypE OF INSURANCE POUCV NUMBER PO ICYEFFECTI POLICY EXPIRATION LIMITS DATE WD DATE M D • GENERAL LIABILITY RMGL 612 3 513 101/01/01 05/16/01 EACH OCCURRENCE $1 0 0 0 , 0 0 0 X _ FIREDAMAGE (Any onefi*) $1, 000, 000 COMMERCIAL GENERAL LIABILITY CLAIMS MADE �J OCCUR MED EXP (Any one person) S 10 '000 PERSONAL B ADV INJURY .$1 000,000 GENERAL AGGREGATE $2 000,000 GEN'L AGGREGATE Lim IT APPLIES PER: PRODUCTS- COMP /OP AGO 82 000,000 POLICY PR T X LOC • AUTOMOBILE X UABIUTY ANY AUTO RMCA5347874 all states ex Texas 01 /01 /01 05/16/01 COMBINED SINGLE LIMIT (Eeaccidem) $1, 000, 000 $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per person) $ X X HIRED AUTOS NON -OWNED AUTOS BODILY INJURY (Per ecadeM) $ PROPERTY DAMAGE (Per xddeM) 'GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA AOC AUTO ONLY: AGG S. ANY AUTO $ D EXCESS X LIABILITY OCCUR CLAIMS MADE BE7396305 01/01/01 05116101 EACH OCCURRENCE $10, 000, 00 AGGREGATE $10,000,00( $ DEDUCTIBLE S RETENTION $ A A B C WORKERS COMPENSATION AND 5274803 states exc: EMPLOYERS' LIABILITY 5274804 CA Only AR,FL,MA,TN,VA, _ 5274505 NY, WI '5274806 01 /01 /01 05/16/01 X T CSTAn,- OE - E:L. EACH ACCIDENT $1 OOO OOO E.L. DISEASE - EA EMPLOYEE $1 000, 000 E.L. DISEASE - POUCYUMR $1 000,000 OTHER DESCRIPTION OF OPERATIONS /LOCATIONSNENCLE&EXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS Certholder included as additional insured for general liability ATIMA. City of Newport Beach Attn: City Clerk P.O. Box 1768 Newport Beack, CA 92658 SHOULD ANYOFTHE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF. THE ISSUING INSURER WILL ENDEAVOR TO MAIL 9 0 DAYSWRITTEN NOTICETOTHE CERTIFICATE HOLDER NAMED TOTHE LEFT, BUTFAILURE TO DOSO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURERJTS AGENTS OR r IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. Astatement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD25-S(7/97)2 of 2 #S77441/M77393 The Hanover Insurance Companies FRANCHISE BOND Bond No.: 1679236 KNOW ALL MEN BY THESE PRESENTS, THAT Comcast Cablevision of Newport Beach, LLC dba Adelphia, as Principal, and X Tn E HANOVER INSURANCE COMPANY, a corporation of the State of NEW HAMPSH RE, 13 MAssACHVsEws BAY INSURANCE CowANY, a corporation of the State of NEW HAMPSMRE, having its executive office in WORCESTER, MASSACHUSETTS, as Surety, are held and firmly bound unto City of Newport Beach, P.O. Box 1768. Newport Beach, CA 92658, hereinafter referred to as Obligee, in the penal sum of lFWrY THOUSAND and 00 /100 DOLLARS ($50,000.00 ) for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, fimily by these presents, the liability of the Surety being limited to said penal sum regardless of the number of years this bond remains in force or is renewed, of the number of premiums that shall be payable or paid, the number of Subscribers to the system and/or legal fees which may be required and incurred. WHEREAS, the Obligee has granted a franchise to Principal to use the public streets and places within its Municipality to transmit and distribute electrical impulses through an open line - coaxial antenna system for television receivers located within said City of Newport Beach. NOW THEREFORE, the condition of this obligation is such, that if the above bound Principal shall faithfully perform, well and truly observe and fulfill their terms and conditions of the franchise, then this obligation shall be null and void; otherwise it shall remain in full force and effect until cancelled. PROVIDED, HOWEVER, it shall be a condition precedent to any right of recovery hereunder, that in the event of any default on the part of the Principal, a written statement of the particular facts showing the date and nature of such default shall be immediately delivered to the Surety by registered mail at its Home Office at 100 NORTH PARKwAY, WORCESTER, MASSACHUSETTS 01605. AND PROVIDED FURTHER that no action, suit or proceeding shall be had or maintained against the Surety on this instrument unless sane be brought or instituted and process served upon the surety within twelve (12) months after an act of breach or cancellation of this bond or termination of said franchise, whichever occurs first. This Bond may be terminated or canceled by Surety by giving thirty (30) days prior notice in writing from Surety to Principal and said Obligee, such notice to be given by certified mail. Such termination shall not affect any liability incurred or accrued under this Bond prior to the effective date of such termination or cancellation. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this 20 day of March. 2001. WITNESS: NAME APPROVED AND ACCEPTED BY: Obligee Title Date Comcast Cablevision of Newport Beach. L dba Adelvhia PRtNCIP BY: VV Cr rWt ,wo-P, eP J�[F.nfn.JFa� JatFnF.w�EeJ TITLE 1JLE wf ri6r ' This Power ofAtt =v may not be used to execute anv bond with111111fnception date after 214/2002 THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CERTIFIED COPY KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire do hereby constitute and appoint William G. Franey. Kenneth W. Roberts, John R. Muha. IL Brenda L Patterson. Shirley A. Harktr>s. Michael S. Olive. Jeri L Murrow andfor David R. Summerall of Capitol Heights. MD and each is a true and lawfulAttomey(s) -in -fad to sign. execute, seal. acknowledge and deliver for, and on its behalf, and as its ad and deed. at any place within: the United States, or, if the following line be tilled.. in, only within the area therein designated , any and all bonds, recognizances. undertakings, contracts of indemnity or other writings obligatory in the nature thereof, as .follows: Any such obligations in the United States. In any amount - And said companies hereby ratify and confine all and whatsoever said Attomey(sHn -fact may lawfully do in the premises by virtue of these presents. These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which resolutions are still in effect: 'RESOLVED, That the President or any Vice President, in conjunction with any Assistant Vice President, be and they are hereby authored and empowered to appoint Attomeys- in-fad of.the Company, in. its name and as ft acts. to execute and acknowledge for and on efts behalf as Surety any and all bonds, redogni anees, contracts of indemnity, . waivers of citation and all other writings obligatory in the nature thereof, with power to attach thereto the seal of the Company. Any such writings so executed by such Attomeys-in -fad shall be as binding upon the Company as if they had been duty executed and acknowledged by the regularly elected officers of the Company in their own proper persons.' (Adopted October 7. 1981 - The Hanover Insurance CompaW/. Adopted April 14. I9S2 - - Massachusetts Bay Insurance Company) THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE. COMPANY have caused 1 their respective corporate seals, duly attested by a Vice President and an Assistant Mee Presidgrg, tl)isdth day On this 4th day o(0INr7-- - -. - efore me came the above named Vice President and Assistant Vice President of The Hanover Insurance Company and J* g nce Company, to me personally known to be the individuals and officers descried herein. and acknowledged t ads affixEd,t. ng instrument are the corporaffisears ofThe Hanover Insurance Company Massachusetts Bay insurance:Ld<apany X at the said corporate. seals and their signatures as officers were duly attired and subscribed to said instrumentb apt d�rp6 `aid Corporations. 2- s it a PfJ BL��'' ��r (2ZIL A Notary Public °"'��pSE.( ���` My Commission Expires November 26, 2004 . 1, the undersign i ent of The Hanover Insurance Company and Massachusetts Bay Insurance Company, hereby certify that the above and foregoing is a full, true and correct copy of the Original Power of Attorney issued by said Companies, and do hereby further certify that the said Powers . of Attorney are still in force and effect This Certificate may be signed by facsimile under and by authority of the following resolution ofthe Board of Directors of The Hanover Insurance Company and Massachusetts Bay Insurance Company. "RESOLVED, That any and aft Powers of Attorney and Certified Copies of such Powers of Attorney and certification in rasped thereto, granted and executed by the President or any Vice President in conjunction with any Assistant Vice President of the Company, shall be binding on the Company to the same extent as if all signatures therein were manually affixed. even though one or more of any such signatures thereon may be facsimile.' (Adopted October 7, 1981 - The Hanover Insurance Company, Adopted April 14, 1982 - Massachusetts Say Insurance Company) GIVEN under my hand and the seals of said Companies, at Worcester, Massachusetts, this 2lstday of March 20 Ol r THE - NOVER I SURANCE COMPANY MASS HUS BAY INSURANCE COMPANY Assistant Vice President Assistant Vice Presidenit� The Hanover Insurance Companies FRANCHISE BOND Bond No.: 1679237 KNOW ALL MEN BY THESE PRESENTS, THAT Comcast Cablevision of Newport Beach, LLC dba Adelphia, as Principal, and * THE HANOVER INSURANCE COMPANY, a corporation of the State of NEW HAMPSHIRE, ❑ MASSACHUSETTS BAY INSURANCE COMPANY, a corporation of the State of NEW HAMPSHIRE, having its executive office in WORCESTER, MASSACHUSETTS, as Surety, are held and firmly bound unto Citv of Newoorl Beach,_P.O. Boa 1768, Newport Beach. CA 92658, hereinafter referred to as Obligee, in the penal sum of ONE HUNDRED THOUSAND and 00 /100 DOLLARS ($100,000.00) for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents, the liability of the Surety being limited to said penal sum regardless of the number of years this bond remains in force or is renewed, of the number of premiums that shall be payable or paid, the number of Subscribers to the system and/or legal fees which may be required and incurred. WHEREAS, the Obligee has granted a franchise to Principal to use the public streets and places within its Municipality to transmit and distribute electrical impulses through an open line- coaxial antenna system for television receivers located within said City of Newport Beach. NOW THEREFORE, the condition of this obligation is such, that if the above bound Principal shall faithfully perform, well and truly observe and fulfill their terms and conditions of the franchise, then this obligation shall be null and void; otherwise it shall remain in full force and effect until cancelled. PROVIDED, HOWEVER, it shall be a condition precedent to any right of recovery hereunder, that in the event of any default on the part of the Principal, a written statement of the particular facts slowing the date and nature of such default shall be immediately delivered to the Surety by registered mail at its Home Office at 100 NORTH WORCESTER, MASSACHUSETTS 01605. AND PROVIDED FURTHER that no action, suit or proceeding shall be had or maintained against the Surety on this instrument unless same be brought or instituted and process served upon the surety within twelve (12) months after an act of breach or cancellation of this bond or termination of said franchise, whichever occurs first. This Bond may be terminated or canceled by Surety by giving thirty (30) days prior notice in writing from Surety to Principal and said Obligee, such notice to be given by certified mail. Such termination shall not affect any liability incurred or accrued under this Bond prior to the effective date of such termination or cancellation. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of March. 2001. WITNESS: NAME APPROVED AND ACCEPTED BY: Obligee Title Date Comcast Cablevision of Newport Beach. LLC dba Adeel hin PRINCIP BY: V/'d�Ldd�CQt,Y% VP o.P we Mf /�6f� Jatf mfnOf�r.�J Jy offnfw.Qft% TITLE -r&.f rnE,+AEL This Power of AttolTmay not be used to execute any bond with ariNIFeption date after THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CERTIFIED COPY KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS SAY INSURANCE COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire do hereby constitute and appoint William G. Franey, Kenneth W. Roberts, John R. Muha, 11, Brenda L Patterson, Shirley A. Harkins, Michael S. Olive, Jeri L Murrow andfor David R. Summerall of Capitol Heights, MD and each is a true and lawful Attomey(s)1n -fact to sign, execute, seat, acknowledge and deliver for, and on its behalf, and as its act and deed at any place within the United States, or, if the following line be filled in, only within the area therein .designated any and all bonds, recognizances, undertakings, contracts of indemnity or other writings obligatory in the nature thereof, as follows; Any such obligations in the United States, in any amount - And said companies hereby ratify and confirm all and whatsoever said Attomey(s)- in-fact may lawfully do in the premises by virtue of these presents. These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which resolutions are still in effect 'RESOLVED, That the President or any Vice President, in conjunction with any Assistant Vice President, be and they are hereby authored and empowered to appoint Attomeys -in -fact of the Company, in its name and as its acts, to execute and acknowledge for and an Its behaff as Surety any and all bonds, recogn¢ances, contracts of Indemnity, waivers of citation and all other writings obligatory in the nature thereof, with power to attach thereto the seat of the Company. Any such writings so executed by such Attomeys -in -tact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company in their own proper persons.' (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1982 - Massachusetts Bay Insurance Company) )F, THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY have caused with their respective corporate seals, duly attested by a Vice President and an Assistant Vice Preside6 fh{s 4th day r ' ►:1� • �� tW y �� . ,••.•n•• ar ssistant Vice President Assistant Vice Presi ��aa" TH F1tLTH OF MASSACHUSETTS ) COUNTY OF WORCESTER ) SS. ff111111 On this 4th day o(,�Nd ry, 'etore me came the above named Vice President and Assistant Vice President of The Hanover Insurance Company and Ira nce Company, to me personalty known to be the individuals and officers described herein, and acknowledged &Rvea)s ceding instrument are the corporate seals of The Hanover Insurance Company and Massachusetts Bay Insuran p yyrJ'w� t the said corporate seals and their sigMm"o s officers were duly affixed and subscribed to said instrument b i ctfl r" Corporations. m % PU * S (ft-al) ; ,t Notary Public W�i�,,yq�°'�"'ps�,�c�e���� My Commission Expires November 26, 2004 I, the undersigned nt of The Hanover Insurance Company and Massachusetts Bay Insurance Company, hereby certify that the above and foregoing is a full, true and correct copy of the Original Power of Attorney issued by said Companies; and do hereby further certify that the said Powers of Attorney are still in force and effect This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of The Hanover Insurance Company and Massachusetts Bay Insurance Company. 'RESOLVED, That any and all Powers of Attorney and Certified Copies of such Powers of Attorney and certification in respect thereto, granted and executed by the President or any Vice President in conjunction with any Assistant Vice President of the Company, shall be binding on the Company to the same extent as if all signatures therein were manually affixed, even though one or more of any such signatures thereon may be facsimile.' (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1982 - Massachusetts Bay Insurance Company) GIVEN under my hand and the seals of said Companies, at Worcester, Massachusetts, this 21stday of March 20 Ol —"THE AANOVER LURANCE COMPANY MASS -HUSE BAY INSURANCE COMPANY Assistant Vice President Assistant Vice Preside fv . "%�•> IWON The Hanover Insurance Companies POLE ATTACHMENT BOND Bond No.: 1678952 KNOW ALL MEN BY THESE PRESENTS, THAT Comrast Cahlevisipn of Newport Reach, i LC dhe Adelphia Communications, as Principal, and X THE HANOVER INSURANCE COMPANY, a corporation of the State of NEW HAMPSHIRE, 13 MASSACHUSETTS BAY INSURANCE COMPANY, a. corporation of the State of NEW HAMPSHIRE, having its executive office in WORCESTER, MASSACHUSETTS, as Surety, are held and firmly bound unto 0ty of NPwnort Reach Attn• Ken Delana Asst (iqr Alanger_ P.C)_ Box 1768; Newport Reach, CA 92658, hereinafter referred to as Obligee, in the penal sum of FIFTY THOUSAND and O0/11111 DOLLARS ($50.,006 -00 ) for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents, the liability of the Surety being limited to said penal sum regardless of the number of years this bond remains in force or is renewed, of the number of premiums that shall be payable or paid, the number of Subscribers to the system and/or legal fees which may be required and incurred. WHEREAS, Principal has entered into a written agreement with the Obligee for the use of its poles in connection with the furnishing of telecommunications services, which agreement sets forth the terms and conditions which govern the use of such poles, which agreement is hereby specifically referred to and made part hereof, with like force and effect as if herein at length set forth. NOW THEREFORE, the condition of this obligation is such, that if the above bound Principal shall perform in accordance with the aforesaid agreement, then this obligation shall be void, otherwise to remain in frill force and effect unless cancelled or terminated as set forth below. This bond may be terminated or cancelled by Surety by giving thirty (30) days prior notice in writing from Surety to Principal and said Obligee, such notice to be given by certified mail. Such termination or cancellation shall not affect any liability incurred or accrued under this Bond prior to the effective date of such termination or cancellation. AND PROVIDED FURTHER that no action, suit or proceeding shall be had or maintained against the Surety on this instrument unless the same be brought or instituted and process served upon the Surety within twelve months after cancellation of this bond as set forth in the preceding paragraph. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this L" day of January, 20D1. WITNESS: 1�, 9 E r r: : r� rr Ifni u i rr� Power of AttomdMv not be used to an inaMon date after THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CERTIFIED COPY KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire do hereby constitute and appoint William G. Franey, Kenneth W. Roberts, John R. Muha, II, Brenda L Patterson, Shirley A. Harkins, . Michael S. Olive, Jeri L Murrow and/or David R. Summerall of Capitol Heights, MD and each is a true and lawful Attomey(s )-in -fad to sign, execute, seal, acknowledge and deliver for, and on its behalf, and as its ad and deed, at any within the United States, or, if the following line be filled in, only within the area therein designated 11 any and all bonds, recognizances, undertakings, contracts of indemnity or other writings obligatory in the nature thereof, as follows: -.Any such obligations In the United States, in any amount - And said companies hereby ratify and confirm all and whatsoever said Altomey(s)4n -tact may lawfully do in the premises by value of these presents. These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which resolutions are still in effect 'RESOLVED, That the President or any Vice President, in conjunction with any Assistant Vice . President, be and they am hereby authorized and empowered to appoint Attomeysin -fact of the Company, in hs name and as its ads, to execute and acknowledge for and on its behalf as Surety any and all bonds, recogn¢ances, contracts of indemnity, waivers of citation ant all other writings Obligatory in the mature thereof, with power to attach thereto the seat of the Company. Any such writings so executed by such Apomeys w Acct shall be as binding upon the Company as 9 they had been duty executed and acknowledged by the regularly alerted officers of the Company in their own proper persons:' (Adopted October 7, 1981 - The Hanover insurance Company, Adopted April 14, 1982 - Massachusetts Bay Insurance Company) On this 4th day oi re me came-the above named Vice President and Assistant Vice President of The Harmer Insurance Company and No rue Company, to me personally known to be the individuals and officers described herein, and acknowledged t ,W@s BffaEdd ceding instrument are the corporate seals of The Hanover insurance Company and Massachusetts Bayinsuran ny. Yom, al the said corporate seals and their signatures as officers were duly affixed and 'subscribed to said instrument b�frq''rjptl irecm rn td Corporations. k /7 m '. P'U L iii "*Z �/ S (Sgal)UB . A Nofary PubNc .. � . .. v AN My Commission Expires November 26, 2004 1, the undersigned ,�� 4As 8' 09 ident of The Hanover Insurance Company and Massachusetts Say Insurance Company, hereby certify that the above and foregoing is a full, true and correct copy of the Original Power of Attorney issued by sold Companies, and do hereby further certify 'that the said Powers of Attorney are still in force and effect. This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of The Hanover Insurance Company and Massachusetts Bay Insurance Company. 'RESOLVED, That any and all Powers of Attorney and Certified Copies of such Powers of Attorney and certification in respect thereto, granted and executed by the President or any Vice President in conjunction with any Assistant Vice President of the Company, shall be binding on the Company to the same extent as 9 all signatures therein were manually affixed, even though one or more of any such signatures thereon may be facsimile.' (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1962 - Massachusetts Bay Insurance Company) GIVEN under my hand and the seats of said Companies, at Worcester. Massachusetts, this 1St day of January 2001 --'HE NOVER URANCECOMPANY MAS USE BAY INSURANCE COMPANY l Assistant Vice President A.ecicta t w a c n�rae 4.r FRANCHISE EXTENSION AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH w AND ADELPHIA CABLE COMMUNICATIONS This Franchise Extension Agreement is entered into between the City of Newport Beach and Century-TCI California LP, dba Adelphia Cable Communications ( "Adelphia ") this 11" Day of January, 2002, with regards to the following facts: RECITALS WHEREAS, by approving Ordinance No. 1197 and its later amendments within Ordinances No 1365 and 91 -43, the City of Newport Beach entered into a cable television franchise agreement (`Franchise Agreement') with Adelphia Cable Communications and its predecessor companies; Comcast Cablevision, Newport Beach Cablevision Incorporated, and Warner Brothers 'TV Service, Incorporated on or about December 7, 1966. The Franchise Agreement will expire on January 27, 2002; and WHEREAS, City and Adelphia desire to extend the Franchise Agreement for one year to allow for additional time for negotiations to consider the renewal of the Franchise Agreement. NOW THEREFORE, the Parties agree as follows: 1. The Franchise Agreement shall be extended to January 27, 2003. During said extension, the terms and conditions of the current Franchise Agreement shall remain in full force and effect without modification. 2. Both parties hereby reserve all rights under applicable provisions of the Cable Communications Policy Act of 1984 (The "Cable Act "), including without limitation Sections 626 and 635. Nothing herein shall be deemed or construed as a waiver, release or surrender of any right that either party may have under the Cable Act or any applicable law. Nothing herein shall waive, release or otherwise relieve the Operator, or any predecessor thereof, from any Franchise Agreement breaches or violations, if any exist, or other violations of law, if any, and the grant of this Franchise Agreement extension shall not be utilized by the operator for any purpose other than to extend, and document the extension, of the Franchise Agreement through January 27, 2003. 1 0 IN WITNESS WHEREOF, the parties hereto have caused this franchise Extension Agreement to be executed in duplicate on the date and year first written herein. APPROVED AS TO FORM: CITY O NEWPORT BEACH City Attorney CITY OF NEWPORT BEACH: F:\users\cat\shared\da\Ag\AdelphiaExtFranAgt.doc CENTURY -TCI CALIFORNIA L.P. d /b /a/ ADELPHIA CABLE COMMUNICATIONS 2 0 Comcast 1830 E. Warner Ave. ' Santa Ana, CA 92705 ' (714) 3382027 July 12, 2000 Hello Everyone! It is with a great deal of enthusiasm and appreciation for your support that I announce my promotion to Comcast Public Affairs Manager. Please keep the enclosed business card for future reference should you need help regarding community affairs or to discuss how Comcast may be of assistance in furthering our ongoing local partnerships. Again, my sincere thanks for your help during the past five years. I look forward to working with you on many more projects in the future. Sincerely, Marilee Jackson Public Affairs Manager enclosure Date lg' copies Sent Ta grjo n cii Member Manager ❑ Attorney ❑ - Q —�`�- ❑ Y 4 4.9 ®Q m f a' In to CQ G U U% U 8 � Q N Npp Wa n E CO � w g -' M a o n cr, �. � 4' m nth �x • Before The FEDERAL COMMUNICATIONS C, Washington, DC 20554 In re: ) PAXSON LOS ANGELES LICENSE, INC. ) Must -Carry Complaint Concerning Carriage of Television Station ) KPXN(TV), San Bernardino, California on Cable Systems Served by ) Comcast Cablevision To: Chief, Cable Services Bureau D CSR - 5347 -M CONSENT MOTION FOR EXTENSION OF TIME EGE1 V E '99 JAN 29 A9:57 Date / `F L Copies Sent To: ❑ Mayor ❑Council Member - � ";tanager /` "tto�ney O Comcast Cablevision ( "Cable Operator') by its attorneys, hereby submits this Motion seeking a brief extension of time to Monday, February 1, 1999, to file its Opposition to the Must -Carry Complaint ( "Complaint ") filed by Paxson Los Angeles License; Inc. ( "Paxson "), licensee of KPXN(TV), San Bernardino, California, in the above- captioned proceeding. The Opposition would otherwise be due today. Good cause exists for granting this request, as it will enable Cable Operator to submit a complete and accurate filing, so that the Commission can proceed with an appropriate record before it. Moreover, the public will not be prejudiced by this brief delay, and counsel for KPXN(TV) has, in fact, consented to the requested extension. Moreover, the parties have had discussions regarding carriage by Cable Operator of KPXN(TV)'s signal in the communities at issue. The parties are optimistic that the dispute can ultimately be resolved without further burdening the Commission. 87644.1 Accordingly, it is respectfully requested that the Commission grant this Motion and allow Cable Operator until February 1, 1999, to file its Opposition to KPXN(TV)'s Complaint. C January 25, 1999 Respectfully submitted, Comcast Cablevision W. Giroux COLE, RAYWID & BRAVERMAN, L.L.P. 1919 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006 (202) 659 -9750 Its Attorney 97641,1 2 • CERTIFICATE OF SERV JCE I, Stacy Smith, hereby certify that a true and correct copy of the foregoing document was sent via first- class, postage prepaid mail on this 25th day of January, 1999 to the following: City of Rancho Cucamonga City of Loma Linda City Clerk's Office City Clerks Office P.O. Box 807 25541 Barton Road Rancho Cucamonga, CA 91729 Loma Linda, CA 29354 City of Fontana City of Ontario City Clerk's Office City Clerk's Office 8353 Siena Avenue 303 East B Street Fontana, CA 92335 Ontario, CA 91764 City of Fullerton City of Santa Ana City Clerk's Office City Clerk's Office 303 West Commonwealth Avenue P.O. Box 1988 Fullerton, CA 92832 Santa Ana, CA 92701 City of Buena Park City of Seal Beach City Clerk's Office City Clerk's Office 6650 Beach Blvd. 211 8th Street Buena Park, CA 90622 -5009 Seal Beach, CA 90740 City of Placentia City of Newport Beach City Clerk's Office City Clerk's Office 4018 East Chapman Blvd. 3300 Newport Blvd. Placentia, CA 29870 Newport Beach, CA 92658 City of Grand Terrace Orange County City Clerk's Office County Clerk's Office 22795 Barton Road 12 Civic Center Plaza Grand Terrace, CA 92313 Santa Ana, CA 92701 City of Highland KOCE -TV City Clerks Office Mel Rogers, President & General Manager 27215 Baseline Drive 15751 Gothard Street, Box 2476 Highland, CA 92346 Huntington Beach, CA 92647 City of San Bernadino KABC -TV City Clerk's Office Arnold J. Kleiner, President & Gen, Mgr. P.O. Box 1318 4151 Prospect Avenue San Bemadino, CA 92401 Hollywood, CA 90027 • 0 KCBS -TV KMEX -TV John M. Culliton, VP & Gen. Mgr. Augustine Martinez, General Manager 6121 Sunset Blvd. 6701 Center Drive W Los Angeles, CA 90028 Hollywood, CA 90045 KCOP KNBC Rick Feldman, President & Gen. Mgr: Carole Black, President & Gen. Mgr. 915 N. La Brea Avenue 3000 W. Alameda Avenue Hollywood, CA 90038 Burbank, CA 91523 City of Upland KTTV City Clerk's Office Diana Vargas, President & Gen. Mgr. P.O. Box 460 1999 S. Bundy Drive Upland, CA 91785 Los Angeles, CA 90025 City of Montclair KSCI City Clerk's Office Ray Beindorf, President & CEO 5111 Benito Street 12401 W. Olympic Blvd. Montclair, CA 91763 Los Angeles, CA 90064 San Bemadino County KTBN -TV County Clerk's Office Paul F. Crouch, President & Founder 222 West Hospitality Lane 2442 Michelle Road San Bemadino, CA 92415 Tustin, CA 92680 Attn: FBN KRCA KDOC -TV Stephen Fouce, President Calvin Brack, Chief Executive Officer 1813 Victory Place 1802.1 Cowan Burbank, CA 91504 Irvine, CA 92614 -6023 KTLA KVEA John E. Reardon, VP & Gen. Mgr. Michael Martinez, General Manager 5800 Sunset Blvd. 1139 Grand Central Avenue Los Angeles, CA 90028 Glendale, CA 91201 KHSC KCAL -TV Bart Pearce, Station Mgr. Don Corsini, VP & General Manager 3833 Ebony St. 5515 Melrose Avenue Ontario, CA 91761 Hollywood, CA 90038 KVCR KCET Thomas Little, General Manager Al Jerome, President & San Diego State University Chief Exec. Officer San Diego, CA 92182 4401 Sunset Blvd. Los Angeles, CA 90027 11 KWHY =TV Burt 1. Harris Chief Executive Officer 5545 Sunset Blvd. Los Angeles, CA 90028 Wayne Johnsen Wiley, Rein & Fielding 1776 K Street, N.W. Washington, DC 20006 Stacy Smith 0 F-e Ppc5T fuet� c c�r cks I A46 Inv I 3.2,.5j i 0 0 i I � s �• s ® - /j ✓� ✓/ L JJ/LP J'r /vr '� � 5r N .L3 }Z663 yo '1�4:5A✓ /0-3 - - X12 YL V C -W) 110 3S�- u B �1- 9z� k rq4 GG w Zi`(D j SG'SM� C�f�J. \f (3 �IiC6 33rD nCCe A-i S 3 3 ZCOJFQ7-Ze a67 z �{ da �T ti - <�+ o- �3 z z, 2e %z ate'' 1673 - 1-7 �f- 61757 - -6a-Y9 -{vim+ N D aY\ tii-6d z i r,� ate► ,� a�� �+ , .��;r�. 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C,�h,7 Qnj (A/ 0&4� vt� 7 7� a —Ll 7e-3 1f -7( 7 / L/ 7( �, %t¢ -6E4 -7)4- 6 75-- 7D33 LO tit 4-Al I !J-D 6 17 ZS. 2—.6f erL—Yl,� -7 --7 -7 I " �#d LTO- S-bq -70,0 41- - -- ------ 31. ?3 k.'p ,7a -at ���1 -f A tt, � L e::, VS- - <D Yo 7 c cm 67s--9633 D Sr q a✓ C, D lyl I Tu 5 co m 6cN-?,3'4S- 2-Co - -2 -? 12- 76 -6ft, -L o (::) -t ---a- �- ---- 5 (,(I. C/ -Z .lq CIT 43, IJ,6 C jqkIl fft�,Lt,12 w6 c Ko )U4-irP71ye,,-" C- ,:,,Dl - A c 0 i 7 y tilo+ cnu-}rD Avim �7_ Jo► rn - - -- � e �a f CAS ca Z -- -- Cc� 01 - - - - - -- 5(�.. �n gz62S- �� _ _ _ �!"� `� 1 � • amt, _atc2, c� fay pl �d a)j a Vii' Co v2 C" M ga�aa j C, �l � 9 ��/ ,sue, z7�r (f D41 9ZC�r Tut 1 7 �r' M Agenda Item 19 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER Y DATE: March 10, 1997 TO: Honorable Mayor and Members of the City Council FROM: Peggy Ducey, Assistant to the City Manager SUBJECT: Cable Rate Regulation BACKGROUND At the January 28th City Council meeting, Councilmember Edwards requested a staff report regarding the City's authority over cable rate regulation. DISCUSSION Since 1984 when Congress adopted the first Cable Act, the Federal Communications Commission (FCC) was assigned as the primary authority regulating cable television services, including rate regulation. Initially, the 1984 Cable Act deregulated cable rates, but dramatic increases in cable rates forced Congress to amend the Cable Act in 1992 to reinstate some limited rate regulation. Between 1992 and 1996, local governments and the FCC shared responsibilities for cable rate regulation. Local governments, if they chose to certify with the FCC, could regulate cable rates for basic tier services, which include access to the major television channels and very limited public access channels. If a City chose not to certify, basic tier regulation fell to the FCC. Newport Beach chose not to certify, and left basic tier rate review to the FCC. Currently, only about 7% of the total Newport Beach cable subscribers have basic tier services. Under the 1992. Cable Act amendment, the FCC was assigned sole authority for rate regulation over expanded tier services, which include not only the major channels, but some cable channels such as CNN, etc. Optional cable services, such as pay per view, or special movie channels are not regulated at all by federal law. Last year, cable regulation was incorporated into the Telecommunications Act of 1996. The Act regulates every aspect of the electronic communications industry, including local and long distance telephone service, cable, radio and television broadcast, etc. The Act removes regulatory barriers between all types of electronic communications, so that telecommunication companies can now provide a wide variety of services. The Act also loosens, and in some instances eliminates, cable rate regulation. The Telecommunications Act regulates cable service with the following new provisions: • Local governments are still responsible for basic tier regulation and the FCC is responsible for expanded tier services, but only for a limited time and under specific circumstances. • Cable rates are no longer regulated in communities where there is "effective cable competition ". Effective competition is defined to include any community where a local telephone company or its affiliate offers video programming services comparable to that provided by an unaffiliated cable operator in the area. Newport Beach has not had competing cable providers. However, beginning next quarter, Pacific Bell will offer wireless cable service in Orange and Los Angeles counties. This service triggers the end of cable rate regulation for most cable services in Orange County. • For communities that do not have cable competition, effective March, 1999, expanded tier cable services are no longer subject to rate regulation, even if there is no effective competition in the affected community. • Under the previous Cable Act, cable subscribers filed rate complaints directly with the FCC. Under the new Act, local government acts as the clearinghouse for complaints that are then forwarded to the FCC. The City still does not have oversight or evaluation authority over rate complaints. Our only responsibility is to compile the complaint information and package it for submission to the FCC. Comcast has increased its rates twice since the Telecommuncations Act was passed. When rates were increased in May, the FCC had not published implementation rules for the new Telecommunications Act, and FCC staff directed the City to collect rate complaint forms and forward those forms to the FCC. The FCC has now completed draft implementation rules that outline rate complaint procedures for the City to follow. If we receive more than one written complaint on a specific rate increase, the City requests the rate increase justification from the local cable provider. Upon receipt of this information, the City forwards the rate justification package to the FCC for review. The City does not provide any rate analysis or "approval' of the new rates, but only acts as an intermediary between the subscriber complainant and the FCC. The FCC must issue its ruling within ninety days. 0 0 Per these new complaint procedures, City staff has requested the necessary information from Comcast for their rate increases and will forward this information to the FCC for action. The City will forward that written decision to all residents who filed a rate complaint with the City. RECOMMENDATION Receive and file. AGENDA ITEM NO.4 CITY OF NEWPORT BEACH arroFN OFFICE OF THE CITY MANAGER s SFP ' 6 SEPTEMBER 26, 1994 APPROVED TO: MAYOR AND CITY COUNCIL FROM: ASSISTANT CITY MANAGER SUBJECT: CABLE T.V. REGULATION ACTION: Review updated material BACKGROUND: At the last meeting, Councilmember Sansone requested an update on this subject which was last reviewed in September 1993. At that time staff •discussed the shortcomings of the federal legislation re- regulating the CATV industry. The new legislation promised rate controls but resulted only in nominal regulation of a small portion of the channel line up and only according to narrow FCC rules. Staff explained that the City would need to hire specialized consultants to audit the very complicated rate calculations submitted to the FCC by the cable companies. Staff discussed the downsides of the City becoming involved in this almost farcical process, and the City Council agreed to postpone action pending evaluation of the experiences of other cities. REGULATION UPDATE: According to FCC regulations, Newport Beach can only regulate one of its two CATV companies. Dimension Cable does not have a large enough "penetration rate" to warrant a finding of "no effective competition ". This is significant, because south county cities served by Dimension have jointly funded a consultant whose findings indicate that Dimension has been over charging. Regardless, Newport Beach has no recourse under the intricate FCC rules. Regarding COMCAST, the efforts of other cities served by them are summarized below: • Buena Park - certified to regulate, hired a consultant who found no discrepancies, currently negotiating franchise renewal. Fullerton - certified to regulate, hired a consultant, no findings yet but outstanding issues relate only to converter boxes. Placentia - Not certified to regulate. Santa Ana - Insufficient market penetration, ineligible to regulate. Seal Beach - Certified to regulate, contemplating hiring a consultant. (q, Z, 0 0 Page 2 As of July 1, 1994, COMCAST's rates for Basic Service in Newport Beach are their lowest in Orange County. The Finance Department is conducting a separate audit of our CATV franchises to assure payment of adequate franchise fees. Staff continues to stay abreast of re- regulation issues and the next county -wide conference is scheduled for October 3, 1994. DISCUSSION: As yet there is no evidence that becoming certified and auditing rates would result in the City gaining rate roll -backs for its subscribers. While some cities have applied for reductions, none have been granted, and the CAN companies have several administrative procedures to exhaust under the FCC guidelines. Because the COMCAST system in Newport Beach is a stand alone operation, a separate consultant would need to be retained at a cost of $5,000 to $10,000. RECOMMENDATION: Direct staff to continue monitoring this issue, to report to the • Council periodically or immediately if developments indicate that City actions could convey real benefits to Newport Beach residents. KenneAJ lin o KJD:mb y THE AETNA'CASUL1„TY AND SURETY COMPANY • HarIM, Connecticut 06115 UFE &CasuacrY KNOW ALL MEN BY THESE PRE,SEM, 'Mat W,Cnmrast Cablev;sion of Newport Beach Inc. as Principal and THE AEl A CASUALTY AND S[]RM Y OO1v1PANY, a Capwation organized and mstmg Mdw the laws ofthe State ofCmwcticut, licensed to dDbusiness in the SOM ofMinas mdO femia, etal., v its HC= Of located at 151 F=iVm Ate, Hart[rnd, C oix ectiaU 06156, as Solely, ate hddand tinily bWWUDhD -Mv of Newport Beach the SUmof Fifty Thousand and 00 /100 ($50,000.00) ,aSOl7l1g8eav tx>r r AuS„ lawf& ul momYof the UmdSomofAmaica, forthepaymentofwhichsumiheld11cpP landdleSuxeybdndthmmdves, d & Suoo== and assigns, jointly and wveaally, my by m Imo• or and rra,lamisalon Or community antenna television signals as outlined in Pole Ag,reeml dated September 12, 1966 NOW, THEREFORE, THE CJONDMON OF THE BOND IS SUCK that if the Principal shall Con�dy with and Perf= its cUigationsina cordaUCew11l1Pole Apreement dated September 12, 19666 thi / dien s obligation shall be void, othw*m to remain in full fare and effect TM BOND is exearted by the Principal and 51nety and argxad by the Obligee subject to the fdbmog omia>,s: 1. Regardless Of the main of mmuls issued extending the tramof this Bond, the liability of the Surety shall W be amiAative and in no event shall the aggrVPte lik tyof the SDtety excess thesMof$ 50,000.00 11: .I 4:n � 1: 1 ..1 .110' ,I 11 .111 ,' •l: 1 ,1 b:: 11 1 A J: 1. :1 : /'1.1 .1: 1' 1' b •J I: 1 IL" 1:111" / II- �T ' -" .111 _4116 11 .61 ? 4: 1� II: :.1:11 1. bK.- .Ip g11H 1: I' II 4. •Y. 1: li:all L'J, I 1. '" 1:41 bC11Y141:b:1 II 111'1111 1 1 11' II "11' .11'1 .111 f411U11a1/1 / II' s1'11 The effective date of this bond is October 1. 1993 SIGNED, SEALEDANDDATM tbiS Tenth dayof October _ 1994 . Replaces Continental Insurance Comcast Cablevision of Newport Beach, Inc. Company Bond #3362900M213 iPrinppal� Dated October 7, 1990 BY:I COUNTERSIGNED ) 4 BY 4 BY: Douglas R. Hite T1Faa .0.330) ED. 10-76 CAI. 431850 PRINTED IN V.S.A. 1 THE AETNA CASUALTY AND SURETY COMPANY Hartford Connecticut 06168 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(SHN -FACT KNOW ALLMENSY THESEPRESENTS, THATTHEAETNACASUALTYANDSLMETYCOMPANY, enrpotttknddiyorgankadmdortM kwsof the Slate of Connecticut. and having Ila principal clan In the City of Hanford, County, of Hartkrd, Slate of Conrnctlad hash made, constituted and oppoiid and does by Ihete presents make, constitute and appoint Douglas R. Rite, Kelly A. Goldmann * of Arlington,VA , Its the and lawful Altarmyt sl• In• FaW with tall Power end auBadlY herabyconfermd to scam mocuto and acknowledge, at any place within Its United Slates, or, D the following floe be (Bled 0% within the eras Nero dealt?- naiad , the following Inerrumomtaln 11Yhilga1' wla Signature and sat, any sndalibonda, rncognhawas.conhacs of Indemnity. and okharvnkingaokte4etoryin the nahRe of a band, rengnlwft% or conditioning undertaking and any and ollmosents Imidwls thoselo and to bkhd THE AETNA CASUALTY AND SURETY COMPANY. Unreby a fully and to the same "lent as if the allow wan signed by the duty sulhorkedodkanof THEAETNACASUALTYANUSURETYCOMPANY, and oil the acts of tothaaethedtYheroto Rival. Oro hereby ra1111ed and confirmed This appointment is made under and by audgrity of the foaowbg Standing Resolutions of said Company. which Resolution, ere now In fug force and offach VOTED: That each of the fallowing oldcen: Ciulmonam Vke Ctnatrmen. President. Any Executive Vitro Pno ldonLMyGrvrq.Exacudva: Any Senior Vial Pnsident.AnY Vial Prosidmt,Any Assistant Vke Rasident.Any Secretsry•A rvAwlotont Secretary. maYfrom done to firm, appolntReddenl Vice Pnaldonts, Resident Assistant Secretaries. Altameysdn.Fect. and Agents le 00 for aid on behed of the Company and may give any such eppoinlea such authority w his cerilRaota of euDhorily may Pnascribe to sign with Cho Compamh name and Met with the Compam/a most bands, reaognixancee.contrada al Indemnity, and otirer wdllnBS obligatory In the nature of a bond. recognizance, wcondidwalundanaking, and SAY of said ofacen a the Board of Oirealow may at any time normal any Such appointee and revoke Cho Povmr end authority ghren him "her. VOTED:Thal any bond, recognirence.conlrecl of Indemnity. orwrhinp obilgnkryln the nature of a band. mocagnkarae ,arcondBlolalundarakmg shad be vadd and binding upon the Company when lot signed by the Chairman, Cho Vice Cheirmem the Comthlm4 an ExaMNa Vim President e Group EaocWva. • Sealer Vice Resident. a Vice President, an Assistant Vice President or by a Rwldenl Visa Pnstdant. puwuwl to the power P1'aacrlbod in the conineale of authority of such Resident Via Resldenl. and duty walled and noted with the ComPatv/e Slid by 8 Secrefry W Assispm Secretary or by a Residom Assistant Sean dery,punuenl to IM power Prescribed In tile aniflcetaw MVCOFhyw Ruch flesidentAssistant Secretary: or (b) duly executed 11111001' o L11 required) by now or moreAtkmeye4ro -Fad pursuant le the powar proscribed In Wsw Chair cenincaa or cenfficolsa of authority. TWsPovnrof Allomey and Carnikele of Authority to signed andwaladby loalmlls under and bywthwhyalthe kltowigStandlog Itsnkfkn voted by the Board of Directors of THE AETNA CASUALTYAND SURETY COMPANY which eenkMan [s now In dud lam and afleatn VOTEDn That the sigraWn of each of the fol owiia offCSFIC Chairman. Vim Chairman, President Any Examthm Vice President. Any group Executive, Any Senior Vice Praldanl.AnYVie Pnsidant.AnyAseitlonl VkeRasidem.Any Secretary, Any Assislsnt Soo etuy,$ndtho eoslafthe ComPanY may be affixed by ISMknU* to MY power el womeyor to enYcenlgala relating thereto appointing Bwldem VW Residents, Resident nature IharCol. and any suck Pawar 01 attorney OFM(IM eto bowing Ruch tawlmRe signithom or tepimite seat shall be valid and binding Upon tire Company and my such power n exawledo ldcarnflodbysuchlacsimita signature and fsafmileseel shall beveddand binding upontheComoany in the future with nspecl to Any bond OF undertaking to which It Is attached. IN WITNESS WHEREOF. THE AETNA CASUALTYAND SURETY COMPANY has caused this tnsinment to be signadbyIts- •VfwPrwidml. and its corporate awl to be hereto affixed tins 22nd'ey of August '19 94 TREAMW CASUALTjfI S ETYCOMPANY San of Connecticut : By so. tinkrd w. flaw .Thump County of Honlnd • Vise Pnsid On Ibis 22nq�y of August 79 94 before M- o Personally came GEORGE W. THOMPSON to me known, who being by me duly mom. did capon and say: that ha/so to - Via Prwldant of THE AETNA CASUALTY AND SURETY COMPANY, the aanperaliw described in end wllih oneauted the alxwn Instrument; that ha/sin knows the seat of Sold MFPwetkmthat the aeataf laulto the said Instrument is such carparek 8004 odd that he/she "=led the said Instrument on behalf of the corporation by authority or Natter office under Una Standing Resolutions lheroof• ;era. •{.aka /I1' '4•ahe . w^r.i My a ohnmbslonexpWSAUpusr eL IM Ndary wane Oorathy l- Mend CERTIFICATE L the undongm,d. 8"olery of THE AETNA CASUALTY AND SURETY COMPANY. a Hock corporation of the State at connections, 00 HEREBY CERTIFY that the foregoing and attached Power at Attorney and Coralkate of Authaft remain$ In full torte and flat not been revoked: and fwlhwmorO, that the Standing RwoWltans at the Board of Dbecton, as all tanh In Cho Cergfiate of Authority, em, now In force. Signed and Seatedof the Items 0Rrmof the Company. In the City of Hanford. Slei of Comecrkul. Dated this loth deyol October :7994 1 By S-192 1-I'(10013,93) � 101 9 • �•'jerr, 1♦581.RT.81C THE XTNA CAS M-1101 0 Ha ` l'Anne TY AND SURETY COMPANY cticut 06195 UIE &CASUw_mv IMWALLhMBYTii6MBVESENP$,'Ibatvve Comcast Cablevision of Newport Beach, Inc. as humpal and THE AEINA CASUALTY AND SUREfY oOMPANY, a oatpo ahm wed and emsWV Under the laws of the State of Ctn we &ua licensed to do business indr States of Iil®ois and Q ifamia, etas., wide its Mme Office located at 151 FaznvVon Awe, Hadmd, Connectied 06156, as &zety, aye held and findy bounduaw City of Newport Beach ag indr SUm0fOnr Hundred Thousand and 00/100 ($100,000-OUT— )L� laV;" lu rr- 1 n- III? l Wr, :, 1 ua w. r n- n n:1 r. � u•r � In u- ' .i Y e 1` III .I11 I 7 111' 1 II:S' I::C:1'A %eve s, the Obligee has autlimized the PrincWtouse poles and other facilities owned and mintainaA ho tPenh9iuee for the nnrnose of maitainine wires thereon for the Agreement dated March 'L9, 19/:1. NOW, TAE, THE OONDMONOFTHE perk m its Obligahm m awordauoe WWL) anchi this obligation sball be void, of mvL;e to remain in IS g= ![tl ✓. .n1 tiit =�. l?"cipai om#yvAdiand dim I :•1 11 a.:r II :1 70W, Ma 11. u. .111 • 1 : .n1 .II :1:1 1 n - C 7 r 1 II - II I In' 11'1 fill 0 1. "'Y.111 :. 1 IL" 11111: 1 :1 "� :1 811:111 Ir' II" I: 111 11 :9'11 II" .1• 1 II" `I: .t. 1.1 1' Y n1 :1 .111 1 11 - :.1'. .IK II" •'i9 -L11' .P / II" � I: "Y:. V 16 1. II' Jll 11: J I I. - 1 .1 .II• Il •III "Y. I 11::11 L•J. Xrl., i :111 .i +. I' f 1 _fill II II" 1.111' 1 Ir- 1111 ":- .III I 'J116 1 :.1 II` ii'11 .1. I:'. - .III Iti 11 1 %I II :- 'r 1. 11:: 1111�"A .1• IM '" I::1 •1'1111:11:1 � 11 - II I'1'IN 1.- -I:dl I. 1 1❑ 1111 1 •. -. SIGNED, SFAUD AND DAimtlusTenth day pfOctober 1994 Replaces Continental Insurance Comcast Cablevision of Newport Beach, Inc. Company Bond #336290OM216 (Plinctpal) Dated October 7, 1990 BY ��� COUNTERSIGNED �1 BY N BY I• a II 1 I ..Y .(L-5M ED. 10.76 CAT. 431850 PRINTED IN U.S.A. THE AETNA AND SURETY B OMPANY artrd, Connect POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(Si-IN -FACT KNDW ALLMEN SYTHESEPRESENTS. THATTHEAETNACASUALTYAND SURL'rYCOMPANY. acorpmaliondulywganked underthe laws i Staleof ConeWhad, end . having its principal opium In IM City of Hartland. County of Hanford. Slate of Connecticut, bath mada. cooadkuhn appeintad end does. by Dtese presents make, cpmlfrute and appoint Douglas R. Hite, RellyA. Goldmann of Arlington,VA .im true end fawfutAtiorneyla)-lMFact. with full power end authority hereby nxunlerred to agrt execute and @cknowledge. It @ay ploca within the Unite: Slated, or.. If the fallowing lint be figad In, within the me them dedg. aided . the following fndrum@ndsh by hImMer sole signature and act any, and alt bands. PooOgNraMewcOtibWSOI Wammty, and other writhigoobtfoatory lathe nature of a bard, recognimmue or conditional undertaking end any and aR consents frcidsnls thereto and to bind THE AETNA CASUALTY AND SURETY COMPANY, thereby as fully and to the same extent do 0 die same avers dgmd by the duty sulhakedof RcerecITHEAETNACASUALTYANDSURETYCOMPANY, andad the note olsddAllomoyls l•bvFeotpt rwml to Ilia author0yhordn glyee, an hereby ratified and confirmed Thre appointment Is made under and by Authority of Bee following Standing Hesofutione of amid Company. which Revolutions am nmyfn lull force end effect VOTER That each at the following 'otifmrm:.Chairman. Vice Cheirmsn, Presider Vice Presdent. Any Vice Prealdsm.AnyAseictanl Vito President Any Sacristan Via. Presidents. Resident Assistant Boundaries. Allorneys-lo -Fact, end Agana appointee such authority as his cartfficete of authnrky may prescribe to sign w recognbances. conitectsof Indemnity. and olherwriting$ obligatory In the ran esitl ofgem or the Board of Directors may at any time remove any much oppol VOTED: That any bond. rsoognkanca. contract of Indemnity, or wridng obllgato shag be valid and binding upon the Company vdien lo) stoned by the Chabms Group Executive. aSeem Vice .Presf font a Vice President. on Assistant t Vba Proscribed In the cedmmle of authority of much Resident Vin President and d Assistant Seaelery mby a Resident Assistant Secretary. pumu mlto the power Any Executive Vice of a bond nnognl:enee.or coeldowl undertaking• end u and revoke the power and suthodly given him or her. or condidond undanaking by a Resident Vice Preshlanf. Pursuant to the power nd sealed with the Company'@ @eel by a Secretary or the certificate of Authority Of such ReeidentAssistant "Otto the power proscribed In bb or that cerdficate This Power of Attorney end tedi fumt@ of AulhwhyIs signed and Added bylesdmiM under and by dothmllYof the following Standing Resolution . voted by the Board at Directors of THE.AETNA CASUALTY AND SURETY COMPANY which flualullon Is now te fug form and offset, VOTED, Thor the signature of each of gin following officers: Cho Executive. Any .So nlor Vin President Any Vin ProsldeM.AnyAnh Company may he @axed by feeYmibr to srry power Of attorney mh Assistant Sombutes orAtlomeys- In -Fsul for purpose only olemec nature tiwraOL and any such power at attorney or catllicate beerin Company end any such power xoamcuted and eentOedby much fact fa Ilia future with respect to any bond or undertaking to which It In Chebmen, Prashienl. Any Executive Vlee President Any Group Resident Wev Presidents. Resident and otherwritings oblige lorry In the shell be wild and binding won the IN WITNESS WHEREOF. THE AETNA CASUALTY AND SURETY COMPANY has caused this Instrument to he signed by its. -VleaPnsident and Ka corporate mad to he hereto allied this 22nddOy Of August '19 94 THE AS CASUALTY-A SU f.7YCOMPANY e Sti Y le of Connectleul es.1Contenl Vies Presider County of Hartford On this aanip,yor August •19 94,beforeme personally came GEORGE W.THOMPSONIOma knovm,wbo, being by me duly sworn. did depose and say: thin hafshe In - Vim peaefd eat of THE AETNA CASUALTY AND SURETY COMPANY. the corporation described In end which emouled the above instrument; that behM knows the seal of said corpureanrthat the seal affixed to the sold impumam is such corporate out; and dial he/she exemnled the said Instrument on befell of the corporation by authority of hisArsr office under din Standing Resclullopa Ilimof. .� t MY rmunlwbn agnp "31.faN Nd@ry Poado P Dorothy L Mare CERTIFICATE L the undersigned. boundary of THE AETNA CASUALTY AND SURETY COMPANY. a stock emponllon of the State ofConnectbd, 00 HEREBY CERTIFY that the foregoing and attached Power of Attmrtey and CorBlka:e of Authority rem@Ine In fug torn end hen not been revoked; and fwlharmma. that the Standing Rasolulfone of the Board of Directors. As met faith In the Cariiflwle of Authority. are now In form. 519111811 and Seale at die time 010= of the Company. In the City of Mordant Elate of Connecticut, Dated this 10th day of October .-1994 w t Bl 1 .S•1931•FffA113A31 "� M#1fT1 P- SINYWr issibf.81t =Wle THE IETNA CAS A&LTY AND SURETY COMPANY Ha , Connecticut06115 UFE &CASL)ALTY :_f ► D a : 10088717094085 KMWA ILLN IEIBYUESEPRESENrS,Tbatm,Comcast Cablevision of Newport Beach Inc. as Principal and THE AEM CASUALTY AND SURETY ODWANY, a corporation agmimd and :=stag udertbe Ims of the State of Cemiacdc ut, licmSed to do hdress intbe States of Illinois and C fmda, etal., with - its How Office located at 151 Farmirguin Avemz, Hartford, Conrediart 06156, as Sleety, are held a� firmly boundunto City of Newport Beach as Obligee in die snmofOnr Hundred Thousand and 00 /100 ($100,0,00.00) 1. . . - " - - __ - bOId.ARS, kwfw 1134 other facilities owned and Agreement dated March 29, 1973. NOW, THEREFORE, THE ORNDMON OF THE BOND IS SUOti, that if the Priricipatl 000#y with and perform is obligations' inaecotdarIce WWranchise Agreemengated -ch 29 > then this obligation sball be void, otherwise to remain m fiill force and effect. THIS BOND is executed by the Principal and SIvety and by the Obligee subject to the following 00iXitions: 1. Regardless of the mmilier of renw als issued extending the term of this Bock, the liability of the Slrrety shall not be tam lative and in no event shall tbeaggregate liability of the &tretyexcess the surnof$ 0^,n00 nn " � 1 � 11' 91 / :i 1111:1 � 111 :111 .• 1 .,41 1.1'1 I :n 11; •. - I 'L M :1 11: I, 1 I %, 1 ..1 ,Ilse" 1 .IIA y 1 e KN1 I✓A . !,: p I> :J 1.1 ." 1 e` •JII 1 II: 1 % 1 li . "1 • J •JIIA a :ee •v: P I ..e 1.1 1. eI. IJ :I III 16 1 .� •Y. I' H::II 1 •J, 1` 1.. I:al e:11111." t.e:1 • 11 L. IUI. e e 1• 11:" 11 1 1 1 .1 1 � 111 1: 1. 1 1 1 :e 11 Tle effective e, of this bond 0 nber 1. 1993 SIGNED, SEALED AM DATED thisTenth day of October 1994 Replaces Continental Insurance Comcast Cablevision of Newport Beach, Inc. Company Bond 013362900ME16 Dated October. 7, 1990 COUNTERSIGNED BY ri/�CI BY: Douglas K. Hite Afforney_ffi,Fact .(L-530) ED; 18.76. CAT. 4318s0. PRINTED 'IN- U.S.A. THE AETNA CASUALTY AND SURETY COMPANY Hartford, Connecllcut 06156 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEYS► -IN -FACT Slate of Conn icdcul, and having Its pi appointed, and does by Ihoaepresent: Douglas R. Hite, Kelly A. Goldmann * of Arlington /VA ,lU two and lawful Allorney(Ndn• Fat, with full power and authority Hereby conferred to sign, calcitic end ecknowladoo, at any plats within the United Steles, or, If the following line be filled in, within the area there desig• naiad ,Ilia following Inswmentle): by hisAier cola 619naluro and Bel, any and all bonds, recognkancaa, contracts of Mdamnity, and ollur writings obligatory In the nature al a bond, . recognlrance, or conditional undorlaking and any and all consents Incidents thereto and to bind THE AETNA CASUALTY AND SURETY COMPANY, thereby oe fully and to (he came extent as Is the same were signed by the duty authorized clikert0l THEAETNACASUALTYANDSUIIETYCOMPANY ,and alllhooctaoleeidAnorneytsGlmFocLlwtwent tolhoautharzymmIn given, are hereby retitled and confirmed: This appointment Is made undo, and by authority of ilia fotlowino Standing Resolutions of said Campeny,wldch Resolutions are navy In full fora, and effect. for end on Wait of tho.Company and Company's name and sell with the Con said afflcars or the Beard of Olrecloro may at any time remove any such appointee and revoke This PowerufAttorney andCertllieale of Authority Is signed and tested byfa olmilo under and byeulhorliy of the following Standing Resolution ,mmd by 111eBOard of Olreelon of THE AETNA CASUALTY AND SURETY COMPANY which Rasolugon'1, now bt foil far,. and ollacb VOTED: That the signetwo of each of the following orficori: Chairman, Vko Chairman, Ptasidem, Any Executive Vice Preaidam, Any.Gtoup Executive; Any Salvor VIM Praaidont, Any Vice President. AnyAsilelant Vim President. AnySOaatary, Any Assistant Slattery. and the seal of the Company may be affixed by loadings to any "war of attorney or to any certificate fall tino 11,01410 appointing Resident Vim Pmsldents, Rasldent As&talent Secretaries of Allorn eya•In -Fact (at purposes only of exaculing and aliesling bonds and undoneklno sand other willing a obligatory In the nature thereof, and any such Power 0fattorney or carllficate batting Such fa shidlo oignature or facslmllo seal shag be valid and binding upon The Company and a ny such power so axe" lad and mrtgted bysuehdacolmllo signature and lacslmlla coal shall be valid and binding upon Ilia Company In ilia future with respect to any band or ondeneklnDto which It G attached. IN WITNESS IN) IEREOF.THE AETNA CASUALTY AND SURETY COMPANY has caused IN a Instrument to be cloned by lie, •Vk,Prasldont. and its corporate Baal to be here,, elibmil Oda 22ndday of August .I9 94 TIIEAETN CASUAL TyJI 6 EfY COMPANY 5181, of Connecticut : '�asP°P BY as. l lonfortl '',,, , Gaor Thamp o County of llonford , Vice Proildan- On this 22nq,, of August .19 94, balaromeparsonallymine GEORGE W. THOMPSON IOmoknown, who, using by me duty sworn, did depose and say: that he/she is • Vice Prasldant of THE AETNA CASUALTY AND SURM COMPANY,the corpota(ion described In and which exautad the above Instrument; (hat he/she knowtthe seal of said cmporallon; that the coal claxecitu the cold Inslrumant is such corporate seat: and that he/she executed the cold Insltumant on behalf of the corporation by authority of his/her office under Iha Standing resolutions thereof. ` 1+erase //l 1X/ ilr. I. M eommlasbnu rasA Y a vevar al, 1998 tropry PuWk CERTIFICATE Dorothy L Mani Lthaundarslgned, oaS elery cif THE AETNA CASUALTY AND SURETY COMPANY, a mock corporation of Iho State ofConnenlwL 00 HERESY CERTIFY that the foregoing, and attached Power of Attorney and Cartillwo of Authority tentative In full to= and has not boon_ revoked: and lurthalmora. that the Stending,Resolutions of the Bowd of Dmaors;�s setfonh in the C"Iff"ta ofAdthorlly,are now In tome. Signed and Scaled at ilia Noma. Gill of the Company, In file CliyofHM ford, State of Connecticut. Dated this lath dayof October :1994 r�e $ a y..�,� .1931•FIM) (3.93) ` bolon R..Swjwr, Assts t . r i 0 BOND NO. 1166CS Contractors' Surety Company (a California Company) 6404 Wilshire Blvd. #850, Los Angeles, California 9004 8-5510 POLE ATTACHMENT BOND THIS IS TO CERTIFY THAT: Comcast Cablevision of Newport Beach, Inc. , as Principal, and CONTRACTORS' SURETY COMPANY, a corporation organized under the laws of the State of California, and authorized to transact business in the State of C'glifolmia as Surety, are held and firmly bound unto (hereinafter called owner) in the sum of 55,000 anti OOn 00 lawful money of the United States, for which payment, well and truly to be made, we bind ourselves, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a written agreement with the owner for the use of its poles in connection with the furnishing of television cable antenna service, which agreement sets forth the terms and conditions which govern the use of such poles, which agreement is hereby specifically referred to and made part hereof, with like force and effect as if herein at length set forth. NOW, THEREFORE, the condition of this obligation is such, that if the above bound Principal shall pay all sums which become due to the Obligee under aforesaid agreement, including rentals, inspections, pole replacements, pole removals, transfers, rearrangements, and any other work performed by the terms of the arrangement; and also including the removal of attachments upon termination of the agreement, then this obligation shall be void, otherwise to remain in full force and effect. This Bond may be terminated or cancelled by Surety by giving Thirty (30) days prior notice in writing from Surety to Principal and said Obligee. such notice to be given by certified mail. Such termination or cancellation shall not affect any liability incurred or accrued under this Bond prior to the effective date of such termination or cancellation. Signed, sealed and dated this 5th day of August , l9 93 County of Orange Orange, California ATTN: Patricia Bigger 14 Civic Center Plaza P.O. Box 4106 Satna Ana, CA 92702 -4106 Agreement Date 9 /30/81 Comcast Cablevision of Newport Beach, Inc. BY: CONTRACTORS' SURE Y COMPANY% BY: FM 19- 1189 -CSC (10191) W- 21x0.10191 -SM CO C 1 ORS9 SURETY 1 1 COWA 1 e Office - 6406 Wilshire Boulevard, Suite Los Angeles, California, 90048, (213) 653 -4058 POWER OF ATTORNEY N2 . _ 0286 - CS KNOWN ALL MEN BY THESE. PRESENTS: That, CONTRACTORS' SURETYCOMPANY, by Erik Rhulen, its Vice - President, in pursuance of authority granted by Resolution of its Board of Directors by unanimous written consent, on the I Sth day of November, 1991, which said Resolution has not been amended or rescinded and of which the following is a true, full and complete copy: "RESOLVED: That the President or any Vice- President may from time to time appoint Attorneys -in -Fact to represent and act for and on behalf of the Company, and either the President or any Vice - President, the Board of Directors or Executive Committee may at any time remove such Attorney's in -Fact and revoke the Power of Attorney given him or her, and be it further "RESOLVED:. That the Attomeys -in -Fact may be given full power to execute for and in the name of and on behalfof the Company any and all bonds and undertakings as the business of the Company may require, and any such bonds or undertakings executed by any such Attorney- in- Fact shall be as binding upon the Company as if signed by the President or any Vice- President and sealed and attested by the Secretary." does hereby nominate, constitute and appoint BILL K. WEBB BRENDA F. COLLIS its true and lawful Attorney -in -Fact, to make, execute, seal and deliver for and on its behalf, as surety, and as its act and deed: Contract; license, and Disciplinary Bonds in an amount not to exceed $650,000. IN WITNESS WHEREOF the said Vice - President has hereunto subscribed his name and affixed the corporate seal of the said CONTRACTORS? SURETY COMPANY, this 24th day of January AD, 1992 tows awr�i CONTRACTORS' SURETY COMPANY "^ ^, By :, — ^.. Erik Rhulen, Vice- president. STATE OF CALIFORNIA COUNTY OF LOS ANGELES) On this 24th day of January A.D., 19 92 before the subscriber, a Notary Public of the State of California,. in and for the County of Los Angeles, duty commissioned and qualified, came the above named Vice- President, of CONTRACTORS' SURETY COMPANY, to me personally known to be the individual and officer described herein and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me duty sworn; deposeth and saith, that he is the . said officer of the Corporation aforesaid, and that the seal mixed to the preceding instrument is the Corporate Seal of the said Corporation, and t hat the said Corporate Seal and his signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official Seal, at the City of Los Angeles, the day and year first above written, OifLitCA tsEAL PILAR AND£TA jr NOTARY CAMOnNU /1 (SEAL.) OSA CO E iN { / LOSAk COUNTY 2 By i I pi 04 LN Cwmis&W DO=J* 23,1993 Notary Public Pq I, the undersigned, Marvin L Tepper, Secretary of CONTRACTORS' SURETY COMPANY, do hereby certify that the original POWER OF ATTORNEY, of which the foregoing is a full, true and correct copy, is in full force and effect IN WITNESS WHEREOF, I have hereunto subscribed my name as Marvin L. Tepper, Secretary, and affixed the Corporate Seal of the Corporation this 5th day of Aug uat 19.9_3. gyspuq�� `s FM 19- 5002 -CS (3192)"' Marvin L Tepper, Secretary CO CTORS9 SURETY COMPANY 6404 Wilshire Boulevard, Suite 850 Los Angeles, California 90048 -5510 Financial Statement as of December 31, 1992 I certify that the below listed officers were duly elected by the Board of Directors of Contractors' Surety Company and continue to hold the office set opposite their names. OFFICERS WALTER A. RHULEN ........ ............................... President ERIK J. RHULEN ....... ............................... Vice President JOSEPH P. LOUGHLIN .. .... ............................... Secretary DAVID E. CAMPBELL . ............................... Vice President DENNIS F. PLANTE ................. ...................... Treasurer I further certify that the following Financial Statement of the Company Is true, as taken from the books of the Company as of December 31, 1992: ASSETS Bonds .................. ............................... $9:472,691 Common stocks_ ......... ............................... 899,522 Dash on hand and on deposit ......................... 1,121,804 Premiums and agents' balances 5.623 in course of collection .............................. 89,678 Electronic data processing equipment .................. 32,747 Aggregate write -Ins for assets other than 34.889 invested assets .................................... . 7,308 Interest dividends and real estate $5,380,358 income due and accrued ............................ 142,138 Federal Income Tax Recoverable ...................... 136,131 TOTAL ADMITTED ASSETS ....................... $11,902,019 LIABILITIES AND POLICYHOLDER'S SURPLUS Losses ............... ............................... 1,768,688 Loss adjustment expenses ............................ 606,652 Other expenses ....... ............................... 40.387 Taxes, licenses and fees .............................. 5.623 Unearned premiums ... ............................... 2,549.488 Amounts withheld or retained by Company for account of others ............................... 34.889 Payable to parent, subsidiaries and affiliates ............ 374.631 TOTAL LIABILITIES .............................. $5,380,358 Capital paid -up ......... ............................... 2.600,000 Paid -in and contributed surplus ........................ 1,176,730 Unassigned funds (surplus) ............................ 2,744.931 Total policyholder's surplus ......................... 6,521,661 TOTAL LIABILITIES 8 POLICYHOLDER'S SURPLUS ..................... $11,902,019 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of the Company this 20th day of September, 1993. CORPORATE SEAL FFB °, vogar °60 JUgY 35a '=2 .,,, "t WALTER A ULEN, President STATE OF NEW YORK COUNTY OF SULLIVAN ss.: On this 20th day of September 1993, before the subscriber, a Notary Publ is of the State of New York in and for the County of Sullivan, duly commissioned and qualified. came WALTER A. RHULEN of CONTRACTORS' SURETY COMPANY to me personally known to be the individual and officer described herein, and who executed the preceding instrument; and acknowledged the execution of the same, and being by me duly sworn, deposed and said, that he is the officer of the Company aforesaid. and that the seal affixed to the preceding instrumentisthe Corporate Seal of the Dompany, and the Corporate Seal and signature as an officer were duly affixed and subscribed to thesaid instrument by the authority and direction of the Corporation, and thatthe resolution of the Company, referred to in the preceding instrument, is now in force. IN TESTIMONY WHEREOF, I have hereunto set my hand. and affixed my official seal at Rock Hill, New York. the day and year above written. "t1NE l NOTARIAL SEAL eu'NpTggr��^: `�vr.'�uBl.1G10 p +: w,ov;pi:�,r' L L-Ct3 Jo"k-k- CHRISTINE I. LANE Notary Public of New York. Sullivan County Clerk's No. 1996 Commission Expires May 2, 1994 CSC /FS (5/93) W- 6167 - 6193 -1M ...: mv. h :... try... .. .. %>: yx:: n::;: } j: isi:^ ii'. �..:. n::.:. n :::... .............:..............Y.• �$�- 12/05/94 gg PFANKHEII THIS ERTIFl TE IS ISSUED AS A MATTER Of INFORMATION Marsh i 1[cLennan, IACOrpOlat @d 600 Grant Street DOES NOT AMEND, D(TEND ON ALTER n HE COVERAGE AFFORDED BY THE POLICIES BELOW. Suite 5500 Pittsburgh, PA 15219 COMPANIES AFFORDING COVERAGE KAREN A WEAVER L'ErrER A SENTRY INSURANCE A MUTUAL CO ANY LL£flERR 8 HOME INSURANCE COMPANY COMCAST CABLEVISION OF NEWPORT BEACH C 1500 MARKET STREET PHILADELPHIA, PA 19102 -2148 -� LETTER D ' COMPANY E rIIY ! iP.K LETTER THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT I OTHER nnCU EPT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY HE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TEAMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. o LTRI TYPE OF RMURANOE POLICY NUMBER �YEF POLICY E PWATIOII DATE (MW/OD^ Uml A OBIERAL LIABILITY 0- 02461 -15 12/01/94 12/01/95 GEHEPA AWC -MTB SNLI '$ PRODUCTS-COAi/OP AGO, f 1000000 Y. GBAEPMLu lfY GAM MADE ®oOCUR. PERSOHAL L 104SAY s 1000000 EACH OCCURRENCE f 1000000 OWNEITS&.CONTRACTOFS PROT. I DAMAGE Ill Pe. 4.I f 100000 MED. EIFENSE W7 I f 5000 A AUi01A0BILE QTY ANY AM 0- 02461 -13 12/01/94 12/01/95 COMBINED Ill .LIMIT i 1000000 BODILY BLURY (Per P. I f ALL OWNED AUTOS scHEDAam Amos HSED AUTOS NOI40YJ1ED AI/I'08 BODILY OLAIRY (P.r accM.rA) f PROPERTY GIMME f. GATMLE LIABILITY B E7CE&sIIAB&RY KUL 1718180 12/01/94 12/01/95 EACH OCCURRENCE . 5000000 AGGREGATE f 5000000 YUTASITE114 FORM MIAMMEM X STATUTORY UMITS „,. OTHER TTMN ULNA FORM - A A_ WONN"CORWOMIoN 0- 02461 -12 0- 02961 -10 12/01/94 12/01/94 12/01/95 12/01/35 IA�a $ 500000 AM DISEASE-POLICY UMM s 500000 01^^•-' -EACH EMPLOYEE f 500000 ®nOVOW LIMIRM OTTER DE CIIIIIIII OF OPERA710NyTOCATONi/YEM UN/weam 11Ba CERTIFICATE HOLDER 18 ADDED AS ADDITIONAL INSURED BUT ONLY AS RESPECTS OPERATIONS -OF THE NAMED INSURED. SHOULD ANY OF HE ABOVE DESCRIBED POLICIES. BE CANCELLED BEFORE THE CITY OV' NEWPORT SMACK EXPIRATION DATE THEREOF. THE ISSUING. COMPANY WILL ENDEAVOR TO ATTN f )USN DELANA MAIL DAYS WRITTEN NOTICE TO 771E CERTIFICATE HOLDER iLN1ED TO THE ASST CITY MANAGER LEFT. BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR P 0 BOX 1768 LIABILITY OF ANY KIND. UPON THE COMPANX I ITS AGENTS OR REPRESENTATIVE& NEWPORT BEACH, CA 9.2658 AnngRIMREPPEOINTAWA Imm °DATE 4"/DD/M rP��St af3. <.,,. ����� �; ���.. 12/05/94 PROlKx R HI CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND Marsh E McLennan, Incorporated 600 Grant Street Spite 5500 CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Pittsburgh, PA 15219 COMPANIES AFFORDING COVERAGE KAREN A WEAVER COMPANY LETTER A SENTRY INSURANCE A MUTUAL CO COMPANY B HOME INSURANCE COMPANY MIM/REB CONCAST CABLEVISION OF SANTA ANA C #� 1500 MARKET STREET PHILADELPHIA, PA 19102 -2148 UEr�rERw D DEC 9 11I4 LUK . COMPANY .LETTER E .p.' ........: .. ... �. ,.b ...:iz+i .,E.,:, EP ,... .:.. ,,, ...:.. THIS IS 70 CERTIFY THAT THEE OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDH:AIEU, NUI WITHSTANDINU ANY RtOUIREMENT, TERM OR CONOI I ION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE: ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS. AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR TYPE OF immumufE POLICY NUMBER � �MMMiDD� POLICY /YYI LIMIs • 0DOMUmm^Y 0-02461 -15 12/01/94 12/01/95 GEMERALAOG(EWTE Peu 8 ammwa& GENERAL LWBLBY PRODUCTS-GOMPAF AGG 6 1000000 4AAM8 MADE ®OCCUR. PERSONAL A AOV. KIM S 1000000 EACH OCCURRENCE S 1000000 OWNER'S & CONTRACTOR'S PRUT. FIRE DAMAGE V q o PT.) P 100000 NED. E)MSE (AV m.A ) 6 5000 • - AUTOMOI UE IMBMRY ANY AUTO 0- 02461 -13 12/01/94 12/01/95 COMBINED SINGLE UNIT S 1000000 8 BODILY INJURY F- awl S ALL OWNED AUTOS SCHEDULED AUTOS HEED AUTOS NON-OWNED AUTOS GODLY INJURY IPK AOWO^U ! GARAGE LIABILITY PTUX�RTY DAMAGE S B Emm weam KUL 1718180 12/01/94 12/01/95 EACH OCCURRENCE S 5000000 AGGREGATE S 5000000 g UMSRE A FORM < "d; :... •.. �, ; ¢ :.. .. . OTHER THAN UMBRELLA FORM A A WORIERSCOMIOIMTIW AM 0- 02461 -12 0- 02461 -10 12/01/94 12/01/94 12/01/95 12/01/95 % STAMoRYUMRS EACH ACCIDENT P 500000 DIWASE -POUCY UNIT M 500000 BMP<oYERe LIAaLIIY DISEASE -EACH EMPLOYEE i 500000 OVER DESCRPTMON OF OPFRAT0NSA0CARpp/YMp9sjv%C K Ras CERTIFICATE HOLDER IS ADDED AS ADDITIONAL INSURED BUT ONLY AS RESPECTS OPERATIONS OF THE NAMED INSURED. N .. _.- s: "s Fa :: i "s . 5� N >. SHOULD ANY OF THE AIXN/E DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY Or NEWPORT BEACH ATTN s KZN DELAMA .. EXPIRATION DATE THEREOF. THE ISSUING COMPANY WILL ENDEAVOR TO MAIL --" DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE ASST CITY MANAGER LEFT, BUT FAILURE. TO MAIL SUCH NOTICE SMALL IMPOSE NO OBLIGATION OR P 0 BOX 1768 LUBIUTY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVE& NEWPORT REACH, CA. 92658 a AUTHOR& REPRESENTATIVE i H . ' maUEDATE.(La�oO/rn s �s« . , �' ... 12/02/93 PRODUCER THIS CERTIFICATE 15 ISSUED MATTER Of INFORMATION Marsh & McLennan, Incorporated 600 Grant Street Suite 5500 CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Pittsburgh, PA 15219 COMPANIES AFFORDING COVERAGE KAREN A WEAVER COMPANY LETTER A SENTRY INSURANCE A MUTUAL CO COMPANY LETTER B HOME INSURANCE COMPANY - - INSURED COMCAST CABLEVISION OF SANTA ANA COMPANY LETTER C 1234 MARKET STREET PHILADELPHIA, PA 19107 -3723 q LET�AR D _1 LEETTTERE"Y E a THIS ISM CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED A90'E,F R IE PO R INDICATED, NOTWITHSTANDING ANY REOUIREMENT,. TERM OR CONOITION OF ANY CONTRACT OR OTHER DOCUIYENT ^J:TT C Y I2 YS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJEC S, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 00 7A TYPE OF INSURANCE POLICY NUMBER PODGY EFFEGTNE DATE POVDD^ POLICY EXPIRATION DATE (MM/DDfM MRS A GENERAL emu^ 0- 02461 -15 12/01/93 12/01/94 GENER& AGGREGATE S'oil .COMMERCIAL GENERAL LIABILITY C MADE ®OCOUR. WAS B PRODUCTS•COAPXF AGO, S 1000000 PERSONAL S ADV. MUURY 6 1000000 OWNER'S .& CONTRACTORS PROT. EACH OCCURRENCE $ 1000000 FIRE DANIME (Any an era) $ 100000 WED. EXPENSE (Arty errprAm) S 5000 A A A °T°MoeILELMeu'Y ANY ALM 0- 02461 -13 0- 02461 -14 12/01/93 12/01/93 12/01/94 12/01/94 ODNIBINED MOLE uMR 6 I000000 x BODILY IN.RJR1' ref P"�) 6 ALL OWNED AUTO* SCHEDULED AUTOS BODILY INJURY For a'wd4M) S HIRED AUTOS NON-OWNED AUTOS GARAGE LIABLITY PROPERTY DAMAGE $ B E)CCE88LMUM HUL1718160 12/01/93 12/01/94 EACH OCCURRENCE 6 5000000 AGGREGATE $ 5000000 g UMBRHIA FORM OTHER THAN UMBRELLA FORM A A A WOKEFMCOMPENSATION �aarERFD7uwIY 0- 02461 -11 90- 03461 -12 0- 02461 -10 12/01/93 12/01/93 12/01/93 12/01/94 12/01/74 12/01/94 srarurDRruMrs DAu I ACCIDENT $ 500000 DSEASE-POLICY uMrr $ 500000 DISEASE -EACH EMPLOYE S S 500000 OTHER DE9CRP71W1 OF OEPATICNIVLOCATIOR /KNCIES/SPECIAL HEMS CERTIFICATE HOLDER IS ADDED AS ADDITIONAL INSURED UNDER POLICY NO 90-02461-05 BUT ONLY AS RESPECTS WORK PERFORMED BY THE NAMED INSURED :........:..:..,'.. ,.......: . :� .. ....xC`.c. • .x .. '. � gars,sd� ............_:._:. C: <:r;:,s�u' :S.::zz.:. ., ... to SHOULD. ANY OF THE ABOVE. DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF NEWPORT BEACH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO ATTN.- KEN DELANA MAIL 3 0 DAYS WRITTEN NOTICE TOTHE CERTIFICATE HOLDER NAMED TO THE ASST CITY MANAGER E >:; LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR P O BOX 1768 N'i LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. NEWPORT BEACH, CA 92658 R544MENTATM 3§ i ^! .....Y r .. . • x MSIIE BATE (MM/DDIYY) 12/02/93 r,.: .< .... PRODUCER THIS CERTIFICATE E TTE INFORMATION ONLY AND Marsh 6 McLennan, incorporated CERTIFICATE ,EEXTENDORALTER 'Grant DOES NOTAMEND HECOVERAAGEAFFORD HE 600 Street POUCIESBELOW. Suite 5500 Pittsburgh, PA 15219 COMPANIES AFFORDING COVERAGE KAREN A WEAVER LETTER S INY A SENTRY INSURANCE A MUTUAL CO INSURED � B HONE INSURANCE COMP n, CONCAST CABLEVISION OF NEWPORT c' BEACH LETTER ANY C 1234 MARKET STREET cow~ n To 0 PHILADELPHIA, PA 19107 -3723 LETTER D 0OMPANr LETTER E : THIS IS TO CERTIFY THAT THE Pq.IgES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOfI THL� ..,AGY PE1110D INDICATED, NOTWITHSTANDING ANY REOUIR�NT, TERM OR CONOITIOlN OF A:iY CGh7RACT OR OTHER DOCUMENT WITH REM -g" TO. WHICH CERTIFICATE MAY BE.ISSUED OR MAY PERTAIN,. THE INSURANCE AFFORDED BY THE POLICIES: DESCRIBED HEREIN IS SUBJECT EXCLUSIONS AND CONDITIONS SUCH POLICIES. 'LIMITS SHOWN MAY HAVE BEEN REDUCED PAID CLAMS. N CO LTR TYPE OF NSURMICE POLICY NUMBER POLICY EFFECTRAS DATE (MM/DDNY( DATE (MM/DD/YY( DOTS A Q8fim LwBIN'T 0- 02461 -15 12/01/93 12/01/94 QUERAL AGGREGATE SKL1 S COMMERCIAL GENERAL UABLRY PRODUCT3CDMP /OP AGM E 1000000 CLAMS MADE ®OCCUR. PERSONAL & ACV. INJURY S 1000000 EACH OCCURRENCE 8 1000000 OWNER'S & CONTRACTORS:PROT. FIRE DAMAGE (Ary om fire) $ 100000 RED. EXPENSE.(ArW ar,ep rsmo S 5000 A AUTOMOBILE UNAM 0- 02461 -13 12/01/93 12/01/94 COMSINED SINGLE s A ANY AUTO 0- 02461 -14 12/01/93 12/01/94 UNIT s a000000 BODILY INJURY _ ALL OWNED AUTOS SCHEDULED AUTOS For Ie —) BOON INJURY HIRED AUTOS NON -MNED AUTOS Per ticaMaM) PROPERTY DAMAGE $ GARAGE LIABILITY B fixam HUL1718160 12/01/93 12/01/94 EACH OCCURRENCE S 5000000 AGGREGATE S 5000000 1[ UMBRELLA FORM OTYER THAN UMBRELLA FORM A WORKEWS COMPENSAIRON 0- 02461 -11 12/01/93 12/01/94 X I STATUTORY UNITS EACHAcOrlllirT c 500000 A 0- 02461 -12 12/01/93 12/01/94 A 0- 02461 -10 12/01/93 12/01/94 DISEASE-POUCY UNIT a 500000 avLOV�DAeILlry DISEASE-EACH EMPLOYEE $ 500000 OTHER DESCRIPTION OF OPNN7nMSAOCAT®IS/1EH E8 /BPECML now CERTIFICATE HOLDER IS ADDED AS ADDITIONAL INSURED BUT ONLY AS RESPECTS OPERATIONS OF THE NAMED INSURED. •_.... ..'.. �.$'...' .: aa, Q........:. k<.. kl..:. ..... : Ra. �:: �: fk.::..f >; SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF NEWPORT BEACH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO ATTN i KEN DELANA MAIL _3.0 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE ASST CITY NANAGER 3s: LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL. IMPOSE NO OBUGATION OR P O BOX 1768 i' LIABILITY OF ANY KIND UPON TYPE COMPANY, ITS AGENTS OR REPRESENTATIVES. NEWPORT BEACH, CA 92658 '. AUTHORRED REPRESENTATNE ter• '1t11S L- k-RILVILA'1'h Lb A kt:FAChM"r Ut lTih& CEWIFICNEE 16SUhM] E;ARLdE2 TH15 YEAR N19CESSTTA'I D BY A CHANGE OF POLICY TERMS. .p` a aw e ,c %�� 1i ""'E"`{`L',•' Rb ISSUE DWE e°Ll §: . <:.;��, • P/DD fie. �.`' mru,w a NICE 12 09 92 M / / PR000CER THIS ER 15 ISSUED AS AMATTER Of INFORMATION ONLY AND Marsh 6 McLennan, Incorporated CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE 600 Brant street POLICIESSELOW. suite SSOO Pittsburgh, PA 15219 COMPANIES AFFORDING COVERAGE KAREN A WEAVER ANY LEETTTTEER A SENTRY INSURANCE A MUTUAL CO LETTER 8 UNITED ,ST BIkE, INS CO , wufm COMCAST CABLEVISION OF SANTA ANA COMPANY LETTER C 1234 MARKET STREET PHILADELPHIA, PA 19107 -3723 COMPANY LETTER D D COMPANY E G('Ul7ChT LNANA LETTER Gfq cRT or THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO ED NAMED. THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT yt'[ SPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCR RF,IS$ TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID C T" TYPE OF INSURANCE POUCY NUMBER D� POLICY O�YfMM/DDm) IN18 A GENERAL um^ 0- 02461 -15 12/01/92 '12/01/93 GENERAL AGGREGATE X111 $ PRODUCT &COMP /OP AGG. $ 1000000 NMLEAQAL GENERAL OABLRy CWMS MADE ®OOCUR. PERSONAL A ADV. RUIRY $ 1000000 EACH OCCURRENCE % 1000000 OWNER'S& CONTRACTOR% PROT. FIRE IXoMGE. Wry am vre) $ 100000 MED. EXPENSE (AN cnaP�) %' 5000 A AUTOMOSIE UlwMUIY 0- 02461 -13 12/01/92 12/01/93 cOmBm SINGLE a A Y ANY AUTO 0- 02461 -14 12/01/92 12/01/93 uMrr 1obb0oo BODILY SLAW ALL OWNED AUTOS SCHEOAID AUTOS GODLY RLA/RY S HIRED AUTOS NO OWNED AUTOS (Per aalderd) PROPERTY D4M4C$ ; GARAGE UASIUT'! B EweassuAeem 235688953 3/31/92 12/01/93 EACHOCCURRENGE 6 5000000 AGGREGATE $ 5000000 $ UMBRELLA FORM OTHER THAN UMBRELLA FORM A W01113R'B COMPENOMION 0- 02461 -11 12/01/92 12/01/93 STATUTORY LIMITS EACHA009)ENT 6 500060 A 0- 02461 -32 12/01/92 12/01/93 A- AND 0- 02461 -10 12/01/92 12/01/93 1 DI%EASE•POUCYUMrr 6 500000 DISEASE-EACH EMPLOYE 6 500000 OTHER OEBtli710N OF OPER&MONNSAOrAlWK i/WROMESAPEOML RFJAS CERTIFICATE HOLDER IS ADDED AS ADDITIONAL INSURED UNDER POLICY NO 90- 02463 -05 BUT ONLY AS RESPECTS WORK PERFORMED BY THE NAMED INSURED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF NEWPORT BEACH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO ATTN t KEN DBLAMA MAIL --30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE ASST CITY MANAGER LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR P O BOX 1768 LIABILITY OF ANY KIND UPON THE COMPANY ITS AGENT'S OR REPRESENTATIVES. NEWPORT BEACH, CA 9265E AUTNORM!ED REP ATNE :s Y' 6 �� v 1Y115 I,.Gt -LkILII Ib A lit:k'LA(:1?MhYYI' OF THE UERXIF1017E ISSUED EARLIER 'MIS YEAR MCESSITATED BY A CRAB OF POLICY MM. a A��1�i ®• ' � . '" NBUE DATE l6M/noM'1 12/09/92 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND Marsh i McLennan, Incorporated CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE: AFFORDED BY THE 600 Grant Street POLICIES BELOW. Suite 5500 Pittsburgh, PA 15219 COMPANIES AFFORDING COVERAGE KAREN A WEAVER LconPM A SENTRY INSURANCE A MUTUAL CO COMPANY LErmzR B UNITED S7KTES FIRE INS CO INSURED CONCAST CABLEVISION OF NEWPORT BEACH COMPANY LEr C 1234 MARKET STREET PHILADELPHIA, PA 19107 -3723 V�r D DEC 17 1992wt COMPANY E DEPUTY CHIT LETTER CITY Of NEWPdW1 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE 1 U ED rALL CY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CUNIAACT OR OT11 I HICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIB TRIMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID C O LTR HYPE OP NSIIRMNIE POLICY NUMBER DATE ) OLIEYI�%W/YY) LAM A BISIEry UNNU Y 0- 02461 -15 12/01/92 12/01/93 GENERAL AGATE BNil PRODUCTSLOMP/GP AGG. B 1000000 $ COMMERCIAL GENERA. L eaurY CIAIMS.MADE ®OCCUR. PERSONAL &ADV. RUBY f 1000000 EACH OCCURRENCE 6 1000000 OWNERS & CONTRACTORS PROT. FIRE DMAI (Airy arro fire) 6 100000 MED. EXPENSE (Any o eperm) 6 5000 A AIITOMOBSE LMBNY 0- 02461 -13 12/01/92 12/01/93 COMBINED SD,13E A 8 AwAUTO 0- 02461 -14 12/01/92 12/01/93 UNIT 6 l000000 BOCLY WARY 6 ALL OWNED AUTOS SCHEDL ED AUTOS POF Pe1BOn) BODLY III 6 HIRED AUTOS NON-OWNED AUTOS (Per accNenQ PROPERTY DAMAGE 6 GARAGE UABIRY B Eommummm 235688953 3/31/92 12/01/93 ECHOCCURRENLE 6 5000000 AGGREGATE 6 5000000 g UMBRELLA FORM IWAINEREMNAIANUM OTHER THAN UMBRELLA FORM A WOHIER'SCOR943MIM 0- 02461 -11 12/01/92 12/01/93 X I STATUTORYuMITB A 0- 42461 -12 12/31/92 12/01/93 55TY.IA=x -Nr 6 500000 A 0- 02461 -10 12/01/92 12/01/93 DISEASE - POLICY LIMIT 6 500000 DISEASE-EACH M fILOYBE $ 500000 IaPLOE1L LDiMeam OTHER OESCRPMN OF OPERATIONS AOCATIONS /fiEHI C ES/6PECML news CERTIFICATE HOLDER IS ADDED AS ADDITIONAL INSURED BUT ONLY AS RESPECTS OPERATIONS OF THE NAMED INSURED. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF NEWPORT BEACH '� EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO AT= z KEN DELANA >; ^; MAIL --10DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE ASST CITY MANAGER LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR P O BOX 1768 LIABILITY OF ANY'IQND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. NEWPORT 3EACE, CA 92658 ` AUTHORIZED REP THE K 1` 6 : I.I A G O J i,v . ISSUE DATE (MMIODNY) INSUR ANCE V J i 3/30/92 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND Marsh & McLennan Incorporated CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DES EXTEND OR ALTER THE COVERAGE AFFORDED BY THE 600 Grant Street POLICIES BELOW.' Suite 5500 COMPANIES AFFORDING COVERAGE Pittsburgh, PA 15219 KAREN A WEAVER COMPANY A LETTER SENTRY INSURANCE A MUTUAL CO _. .-. . COMPANY B INSURED LETTER UNITED STATES FIRE INS CO COMCAST CABLEVISION OF NEWPORT COMPANY C BEACH LETTER 1234 MARKET STREET COMPANY PHILADELPHIA, PA 19107 -3723 LETTER D COMPANY E LETTER ..,�' e:.:., .. ... THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED. HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS ILIA POLICY (MM /DDIYY) DATE IMMIDDIYY) • GENERAL LIABILITY 90- 02461 -05 3/31/92 12/01/93 GENERAL AGGREGATE Nil X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP /OP ABU. $ 1000000 CLAIMS MADE X OCCUR. PERSONAL &ADV. INJURY $ 1000000 OWNER'S& CONTRACTOR'S PROT. EACH OCCURRENCE S 1000000 FIRE DAMAGE (Any one tire) S 100000_ MED. EXPENSE (Any Una Parson) S 5b66_ 0 0 0 • AUTOMOBILE LIABILITY 90- 02461 -03 3/31/92 12/01/93 COMBINED SINGLE X ANY AUTO LIMIT $ 1000000 ' ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) HIRED AUTOS .. , BODILY INJURY S NON-OWNED AUTOS (Per accident) .X GARAGE LIABILITY PROPERTY DAMAGE S • EXCESS LIABILITY 5235688953 3/31/92 12/01/93 EACH OCCURRENCE S 5000000 X UMBRELLA FORM AGGREGATE $ 5000000 OTHER THAN UMBRELLA FORM • 90702461 -02 3/31/92 3/31/93 STATUTORY LIMITS WORKER'S COMPENSATION EACH ACCIDENT S 500000 AND ' DISEASE — POLICY LIMIT S 500000 EMPLOYERS' LIABILITY DISEASE —EACH EMPLOYEE S 500000 OTHER DESCRIPTION OF OPERATIONS ILOCATIONSIVEHICLESISPECIAL ITEMS CERTIFICATE HOLDER IS ADDED AS ADDITIONAL INSURED BUT ONLY AS RESPECTS OPERATIONS OF THE NAMED INSURED. OANCECILATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF NEWPORT BEACH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO ATTN : KEN DELANA MAIL —2-0 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE ASST CITY MANAGER LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR P O BOX 1768 - LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. NEWPORT BEACH, CA 92658 ' AUTHORIZED REPRESENTATIVE 4 PAGE: 1 OF 1 '— w PAGE: 1 OF 1— `� "St � u �CjE _ 20'G 1 ISSUE DATE 1M / 91. 3 0 3/30/92 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND Marsh & McLennan Incorporated CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE 600 Grant Street POLICIES BELOW. Suite 5500 Pittsburgh, PA 15219 COMPANIES AFFORDING COVERAGE KAREN A WEAVER COMPANY A LETTER SENTRY INSURANCE A MUTUAL CO COMPANY B INSURED LETTER UNITED STATES FIRE INS CO COMCAST CABLEVISION OF COMPANY C SANTA ANA LETTER 1234 MARKET STREET COMPANY D PHILADELPHIA, PA 19107 -3723 LETTER COMPANY E LETTER THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER LTR POLICY EFFECTIVE POLICY EXPIRATION LIMITS DATE(MMIDDIYV) DATE(MM /DDIYY) • GENERAL LIABILITY 90- 02461 -05 3/31/92 12/01/.93 GENERAL AGGREGATE Nil X. 1 COMMERCIAL. GENERAL LIABILITY PRODUCTS-COMP /OP AGO. $ 1000000 CLAIMS MADE X OCCUR. PERSONAL. &ADV. INJURY $ 1600000 ,OWNER'S& CONTRACTOR'S PROT. EACH OCCURRENCE 5 1000000 FIRE DAMAGE (Any one fire) $ 100000 MED. EXPENSE (Anyone Person) $ 5000 • AUTOMOBILE LIABILITY 90- 02461 -03' 3/31/92 12 01 93 COMBINED SINGLE X ANY AUTO LIMIT $ 1000000 ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) . ., . HIRED AUTOS BODILY INJURY $ NON-OWNED AUTOS (Par accident) X. GARAGE LIABILITY PROPERTY DAMAGE $ • EXCESS LIABILITY 5235688953 3/31/92 12/01/93 EACH OCCURRENCE $ 500000.0 X UMBRELLA FORM AGGREGATE $ 55000000 OTHER THAN UMBRELLA FORM • 90-02461-02 3/ 31 / 9 2 3/31/93 STATUTORY LIMITS WORKER'S COMPENSATION EACH $ 500000 AND ACCIDENT DISEASE — POLICY LIMIT $ 500000 EMPLOYERS' LIABILITY ' DISEASE —EACH EMPLOYEE $ 500000 OTHER DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLeMPECIAL ITEMS CERTIFICATE HOLDER IS'-ADDED AS ADDITIONAL INSURED UNDER POLICY NO 90- 02461 -05 BUT ONLY AS 'RESPECTS WORK PERFORMED BY THE NAMED INSURED xOmAdAft o,.:�ER. ./ K ..•: . ,'a: CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CI CITY OF NEWPORT BEACH CITY: EXPIR TIPN DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO KEN DELANA MAIL _ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE ASST CITY MANAGER LEFT. BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR P O BOX 1768 LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES, NEWPORT BEACH, CA 92658 AUTHORIZED REPRESENTATI r• PAGE: 1 OF 1— `� Certificate of Insurance THIS CE AT IT ICATE IS ISSUED AS A MATTER OF INrTION ONLY AND CONFERS NO RIGHTS UPON YOU THE CERI �E HOLDER. THIS CERTIFICATE IS NOT AN INSURANCE POLICY AND DOES NOT AMEND. EXTEND. OR ALTO COVERAGE AFFORDED BY THE POLICIES LISTED BELOW. This is to Certify that LIBERTY COMCAST CABLEVISION OF NEWPORT BEACH, INC. I Name and MUTUAL. 901 W. 16th Street Ti address of Newport Beach, CA 90740 Insured. L J is. at The issue date of this certificate, insured by the Company under the policy(ies) listed below. The insurance afforded by the listed pglicy(ies) . is subject to All their terms, exclusions and conditions and is not altered by any requirement term or condition of any contractor other documenl with respect to which this certificate may be issued.. TYPE CERT.EXP,DATE' LIMIT OF ❑ CONTINUOUS POLICY OF POLICY ❑ EXTENDED NUMBER LIABILITY 12 POLICY TERM COVERAGE AFFORDED UNDER W.C. EMPLOYER'S LIABILITY LAW OF THE FOLLOWING STATES: Bodily Injury By Amidem WORKERS' 3/31/91 WC2- 131 - 09$944 -010 AL CT FL IL IN KY Ea. ACC. Botllly I jn�0 , 000 ' I MD MI MS NJ PA TN COMPENSATION Ea. Parsec 3/31/91 WC2- 131 - 098944 -150 CA Bodily Injury By Disease 50 $ 500 , 000. Pol. Limn General Aggregale -Other than ProducWComPleted Operations 3/31/91 TBl- 131 - 098944 -020 $2,000,000. ProducwCompteled Operallons Aggregsle $1,000,000. Bodily Injury and Properly Damage Liability J w$1,000,000. ❑CLAIMS per occurrence Z MADE Personal and Adverlising injury UI } C7 F- I per peraell 1 OOO 000. ergawalean RETRO DATE m Other L —1 II-pp 13 OCCURRENCE 0 U v SPECIALIEXCL. ENDORSEMENTS } ®OWNED 3/31/91 AS1- 131 - 098944 -300 $ 1 000 000. EACH ACCIDENT- SINGLE LIMIT.B.I. AND P.D. COMBINED EACH PERSON $ EACH ACCIDENT EACH ACCIDENT i- L NON -OWNED 3/31/91 AS1 -131- 098944 -040 ® I 7 HIRED $ OR OCCURRENCE I $ OR OCCURRENCE oc Umbrella 3/31/91 THl- 131 - 098944 -030 $5,000,000. Per Occurrence LU J: Excess $5,000,000. General Aggregate 0 Liability $5,000,000. Products /Comp. Op. Aggregate LOCATION(S) OF OPERATIONS & JOB N (It Applicable) DESCRIPTION OF OPERATIONS: All Locations /All Operations If the certificate expiration date is continuous or extended term, you wit be notified it coverage is terminated or reduced before The i:edifli: ale expiration date. However, you will not be notified annually of the continuation of coverage. Liberty Mutual NOTICE OF CANCELLATION: THE COMPANY WILL NOT TERMINATE OR REDUCE Insurance [croup THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNLESS -30_ DAYS NOTICE OF SUCH TERMINATION OR REDUCTION HAS BEEN MAILED TO: City Bo Newport Beach a'ls CERTIFICATE P.O.. Box 1768 (/�( HOLDER -� Newport Beach, CA 92658 AUTHORIZED REPRESENTATIVE Ken Delano, Ass't City Manager 3/31/90 Bala Cynwyd, PA 19004 L DATE ISSUED OFFICE INS camrlcale Is ecn:01e0 by LIBERTY MUTUAL IN$UnANCC GROUP as resprcissirch insoranco ae m alrorded by ThosoCmnpameo SS772S R2 Certificate of Insurance THIS CERTIFICATE IS ISSUED ASA MATTER OF INF TION ONLY ANDCONKERSNO RIGHTS UPON YOU THE I; Ell HOLDER. THIS CERTIFICATE IS NOT AN INSURANCE POLICY AND DOES NOT AMEND. EXTEND. OR ALTE,. COVERAGE AFFORDED BY THE POLICIES LISTED BELOW. This is to Certify that LIBERTY F COMCAST CABLEVISION OF NEWPORT BEACH, INC. MUTUAL. 901 W. 16th Street Name address s of of Newport Beach, CA 90740 Insured. L is, at the issue dale of this certificate, insured by the Company under the policy(ies) listed below. The insurance afforded by the listed policy(ies) is subject to all their terms. exclusions and conditions and is not altered by any requirement, term or condition of any contract or other document with respect to which this certificate may be issued. TYPE CERT.EXP.DATE' LIMIT OF ❑ CONTINUOUS POLICY OF POLICY EXTENDED NUMBER LIABILITY f❑ r.,R POLICY TERM NL COVERAGE AFFORDED UNDER W.C. EMPLOYERS LIABILITY . LAW OF THE FOLLOWING STATES: Bodily cowry By Accident WORKERS' 3/31/91 WC2- 131 - 098944 -010 AL CT FL IL IN KY Ea. Ace. BatlCOMPENSATION =8D MD MI MS NJ PA TN 11 DDO,DOO, CA Ea. Person 3/31/91 WC2- 131 - 098944 -150 CA Bodily Injury By Disease $ 500,000. Pol. Limit General Aggregate-Other than ProductslCompleted Operations 3/31/91 TBl-131- 098944 -020 $2,000,000. Pu ducodCompleted Oyerelions Aggregate $11000 000. Bodily Injury and Properly Damage Liability J Q W ❑CLAIMS MADE $1,000,000. per occurrence Personal and Adverlramg injury Lu aerao oA.e W} 0 r per pareard 1 000 000. organization Q m Other UQ WJ L OCCURRENCE i O U r SPECIAIJE %CL. ENDORSEMENTS Y ®OWNED 3/31/91 AS1- 131 - 098944 -300 $ 1 OOO OOO.EACH ACCIDENT-SINGLE LIMIT -8.1. AND P.D.COMBINED $ EACH PERSON O� 7m ®NON-0WNED 3/31/91 AS1- 131 - 098944 -040 Q:Q ® EACH ACCIDENT EACH ACCIDENT 1 HIRED $ OR OCCURRENCE $ OR OCCURRENCE Umbrella 3/31/91 TH1- 131 - 098944 -030 $5,000,000. Per Occurrence 1¢ X Excess $5,000,000. General Aggregate 0 Liability $5,000,000. Products /Comp. Op. Aggregate LOCATION($) OF OPERATIONS 8 Joe a 411 Applicable) DESCRIPTION OF OPERATIONS: All Locations All Operations R ilia cermicam expiration Gate is continuous or extended term, you wil be notified If coverage is terminated or reduced before the certificate expiration dale. However, you will not be notified annually of the continuation of coverage. NOTICE OF CANCELLATION: THE COMPANY WILL NOT TERMINATE OR REDUCE Liberty Mutual THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNLESS. 30L— DAYS Insurance Group NOTICE OF SUCH TERMINATION OR REDUCTION. HAS BEEN MAILED TO: City of Newport Beach W% a^2l A���/ CERTIFICATE P.O. Box 176$ �J C/�( HOLDER —+ Newport .Beach, CA 92658 AUTHORIZED REPRESENTATIVE Ken Delano, Ass't City Manager 3/31/90 Bala Cynwyd, PA 19004 L. J DATE ISSUED OFFICE This tarlihcata is 9 <"ItW by LIBERTY MU rUAL INSURANCE GROUP B9 189Pepis such Insurance as is afforded by Those Companies BS772S R2 Certificate of Insurance T141S CERTIFICATE IS ISSUED AS A MATTER OF INFO f*N ONLY AND CON, CRS NO RIGHTS UPON YOU THE CERTIFI OLDER THIS CERTIFICATE IS NOT AN INSURANCE POLICY AND DOES NOI AMEND. EXTEND, 08 At TER OVERAGEAFFOROED BY THE POLICIES LISTED BELOW. This is to Certify that LIBERTY F Comcast Cablevision of Santa Ana, Inc. MUT UAL 1.400 North Main Street Name and Santa Ana, CA 92701 a address of Insured. L is, at the Issue date of this certificate. insured by the Company under the policy(as) listed below. The insurance afforded by the listed policy(ies) is subject to all their terms. exclusions and conditions and is not altered: by any requirement, term or Condition Of any Contract or other document with respect to which this Certificate may be issued. TYPE CERT.EXP.DATE' LIMIT OF ❑ CONTINUOUS POLICY OF POLICY EXTENDED NUMBER LIABILITY I❑ UL POLICY TERM COVERAGE AFFORDED UNDER W.C. EMPLOYER'S LIABILITY LAW OF THE FOLLOWING STATES: Bodily Injury ByAccidunt WORKERS' 3/31/91 WC2 -131- 098944 -010 AL CT FL IL IN KY Ea. A C. MD MS MS NJ PA. TN R°dlylnI60000. COMPENSATION Ea. Person Bodilyl 50 By Disease 3/31/91 WC2- 131 - 098944 -150 CA $ 500,000_ Pol. Lead! General Aggregate -other than Prod,esslCompleted Operations 3/31/91 TBl- 131 - 098944 -020 $2,000,000. ProductsrCompleted Operations Aggregate . 1. 000 0.00. Bodily Injury and Property Damage Liability J CE $1,000,000. per occurrence U Lz ❑CLAIMS MADE Personal and Adwmsmg In,ay ou (5� i per mrsoal $1,000,000. orgadiiabdn pEIRO pAIE JJ Q ro Other UQ_ LU L� OCCURRENCE g O U tl SPECIALlE %CL. ENDORSEMENTS > OWNED 3/31/91 AS1 -131- 098944 -300 $ 1 EACH ACCIDENT-SINGLE LIMIT -B.I. AND P.D. COMBINED $ •.EACH PERSON EACH ACCIDENT EACH ACCIDENT Ot 0 m ® NON -OWNED 3/31/91 AS1- 131 - 098944 -040 Q.Q 7 r� HIRED $ OR OCCURRENCE $ OR OCCURRENCE C Umbrella 3/31/91 TH1- 131 - 098944 -030 $5,000,000. Per Occurrence = Excess $5,000,000. General Aggregate o Liability $5,000,000. Products /Comp. Op. Aggregate LOCATION(S) OF OPERATIONS R JOB (II Applicable). DESCRIPTION OF OPERATIONS: ' If the certificate expiration date: is continuous or extended term, you wil be notified if coverage is terminated or reduced before the certificate expiration date. However, you will not be notified annually of the continuation of coverage. - — — Liberty Mutual NOTICE OF CANCELLATION: THE COMPANY WILL NOT TERMINATE OR REDUCE Additional Insured: InsuranceGmup THE . INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNLESS- .30 _ DAYS City of Newport Beach NOTICE OF SUCH TERMINATION OR REDUCTION HAS BEEN MAILED TO: City of Newport Beach Attn: B. Brown CERTIFICATE P.O., Box 1768 AUTHORIZED REPRESENTATIVE HOLDER -+ Nweport Beach CA 92658 -8915 3/31./90 _Bala Cynwyd., PA 19004 J DATE ISSUED OFFICE L_ This cedilicaf Iswended'by LIBERTY MUTUAL INSURANCE GROUP as respects such Imurance as is afforded by Those colripame5 13ST72S R2 r� L Marsh & McLennan. Incorporated 600 Grant Street, Suite 5500 Pittsburgh, PA 15 219 -288 5 Telephone 412 288 8800 Telefax 412 288 8884 March 28, 1991 City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn: B. Brown RE: Comcast Cablevision of Santa Ana, Inc. To Whom Tt. Mav Concern, 0 MARSH & MCLENNAN In accordance with your request, enclosed please find a Certifi- cate of Insurance issued on the above captioned. We trust you will find the encicsure to be in order. Should you have any questions in regard to this certificate, please do not hesitate to contact our office. Very truly yours, Karen A. Weaver Account Administrator COMZ1989.SHL cc: Ms. Kathleen Coupe Risk Administrator Comcast Corporation Mr. Daniel Revai Account Executive - National Accounts Sentry Insurance Company Ms. Lynn Spadacene Excess Department United States Fire Insurance Company Y �e�a"��a�►a' 7 1 'I ppR$ 1g91�.M V 1 c ",,� Cm NEWLli C , ' OCCURRENCE B Umbrella 523563597 -9 03/31/91: 03/31/921 s & OTHER THAN UMBRELLA FORM 51000 5,000 90- 02461 -01 ........ R STATUTORY . WORKER'S COMPENSATION (All States Except A P ) � $ 50�_ (EACH ACCIDENT) A AND 90- 02461 -02 03/31/91 03/31/92 -$ MO­ (DISEASE-POLICY LIMIn EMPLOYERS'LIABILRT (California Only) $ 500 (DISEASE -EACH EMPLOYE OTHER DESCRIPTION OF OPERATIONS / OCATIONSIVENICLES/SPECIAL ITEMS City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn: B. Brown CER �- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE g:. EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 3_11 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR 'y LIABILITY OF ANY KIND UPON THE COMPANY. ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTA7I)IG� THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED Z FO PERIOD ISSUE DATE (MM1OD1YY) ',,- ' . REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOWIT CT TO CH THIS .;; ;'•. _r�.:. .. .03/28/91. PRODUCER THIS CERTIFICATE I5 ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID ...........CO k NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND. MARSH & MCLENNAN, INC. EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW 600 Grant Street _._._...._.._..._ --- _,.___._..... .. . Suite 5500 .E .. ... I ... .... GENERAL LIABILITY COMPANIES AFFORDING COVERAGE Pittsburgh, PA 15219 2, 000 ....._..... R ; COMMERCIAL GENERAL LIABILITY COMPANY 03/31/91 03/31/92 PRODUCTS•COMPIOPS AGGREGATE &,1.,_000,... LETTER A .............. Sentry Insurance Company ......: .. ............................... _... ....__.. . :. COMPANY B INSURED LETTER North Insurance River Insuran COO an Co ®cast Corporation, et al. ;........_ _ ..... _ .._ _. _ _ _ (See Attached List of Named Insured) COMPAN LETTER Y C FIRE DAMAGE (Any one fire) : & 1234 Market Street COMPANY D y~ Philadelphia, PA 19107 -3723 LETTER ....... ..... ..... 5 COMPANY.:) LETTER Ell ® ..P "S_ ' OCCURRENCE B Umbrella 523563597 -9 03/31/91: 03/31/921 s & OTHER THAN UMBRELLA FORM 51000 5,000 90- 02461 -01 ........ R STATUTORY . WORKER'S COMPENSATION (All States Except A P ) � $ 50�_ (EACH ACCIDENT) A AND 90- 02461 -02 03/31/91 03/31/92 -$ MO­ (DISEASE-POLICY LIMIn EMPLOYERS'LIABILRT (California Only) $ 500 (DISEASE -EACH EMPLOYE OTHER DESCRIPTION OF OPERATIONS / OCATIONSIVENICLES/SPECIAL ITEMS City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn: B. Brown CER �- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE g:. EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 3_11 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR 'y LIABILITY OF ANY KIND UPON THE COMPANY. ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTA7I)IG� THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED Z FO PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOWIT CT TO CH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED S T TO A TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID ...........CO k ETR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION. T DATE (MMIDDM) , DATE (MMIDDNY) ' .E .. ... I ... .... GENERAL LIABILITY ......- .- . . .. ._.._._.... ... — ."- "- __.-- .�....__.... .. .. _ ` : GENERAL AGGREGATE ; S 2, 000 . R ; COMMERCIAL GENERAL LIABILITY 90- 02461 -05 03/31/91 03/31/92 PRODUCTS•COMPIOPS AGGREGATE &,1.,_000,... A _ CLAIMS MADE R OCCUR. . PERSONAL & ADVERTISING INJURY • $ . OWNER'S & CONTRACTOR'S PROT. :EACH OCCURRENCE : S 1 E_QQQ FIRE DAMAGE (Any one fire) : & 100 . ........ .. .__ .,._ _ .. ....�.. i MEDICAL )PE BE (Anyone PeWA)j $ ___-_ — _._________.. 11___..x. ....... ..... ..... 5 AUTOMOBILE LIABILITY , COMBINED ..X ANY AUTO ' GIMIT $ 1 , OOO R ALL OWNED AUTOS 02461 -03 BODILY `R SCHEDULED AUTOS /90- (All States Except !INJURY . & (Per Pawn) i... ' . A.. R . HIRED AUTOS TR) ..... =BODILY ..: ' ' R ` NON -OWNED AUTOS 90- 02461 -04 INJURY 03/31/91 03/31/92 _ (Per accident) $ 'GARAGE LIABILITY (Texas Only) :PROPERTY: ' .DAMAGE S - EXCESS LIABILITY EACH AGGREGATE ' OCCURRENCE B Umbrella 523563597 -9 03/31/91: 03/31/921 s & OTHER THAN UMBRELLA FORM 51000 5,000 90- 02461 -01 ........ R STATUTORY . WORKER'S COMPENSATION (All States Except A P ) � $ 50�_ (EACH ACCIDENT) A AND 90- 02461 -02 03/31/91 03/31/92 -$ MO­ (DISEASE-POLICY LIMIn EMPLOYERS'LIABILRT (California Only) $ 500 (DISEASE -EACH EMPLOYE OTHER DESCRIPTION OF OPERATIONS / OCATIONSIVENICLES/SPECIAL ITEMS City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn: B. Brown CER �- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE g:. EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 3_11 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR 'y LIABILITY OF ANY KIND UPON THE COMPANY. ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTA7I)IG� N • • COMCAST CORPORATION ET AL LIST OF ADDITIONAL INSUREDS American Cable Systems, Inc. CAT Partnership D /B /A Pine Belt Cable Cell South of New Jersey, Inc. c/o Comcast Corp. Cellular One Comcast Cable Corporation (MI) Comcast Cable Investors, Inc. Comcast Cablevision Corp. of California Comcast Cablevision Corp. of Mobile, Inc Comcast Cablevision Corporation Comcast Cablevision Corporation (MI) Comcast Cablevision Corporation (PA) Comcast Cablevision Investors, L.P. Comcast Cablevision of Baltimore County Comcast Cablevision of Boca Raton Comcast Cablevision of Central Orange Comcast Cablevision of Danbury, Inc. Comcast Cablevision of Dothan, Inc. Comcast Cablevision of Flint Comcast Cablevision of Hartford County Comcast Cablevision of Hopewell Valley, Inc. Comcast Cablevision of Huntsville, Inc Comcast Cablevision of Indiana, L.P. Comcast Cablevision of Indianaplois, Inc. Comcast Cablevision of Inland Valley, Inc. Comcast Cablevision of Lawrence, Inc. Comcast Cablevision of Lompoc, Inc. Comcast Cablevision of Macomb County, Inc. Comcast Cablevision of Marianna, Inc. Comcast Cablevision of Maryland, L.P. Comcast Cablevision of Mercer County Inc. Comcast Cablevision of Middletown, Inc. Comcast Cablevision of Montgomery County, Inc Comcast Cablevision of Mt. Clemens, A Partnership Comcast Cablevision of Newport Beach, Inc. Comcast Cablevision of North Orange, Inc. Comcast. Cablevision of Paducah, Inc. Comcast Cablevision of Panama City Comcast Cablevision of Perry, Inc. Comcast Cablevision of Philadelphia, L.P. Comcast Cablevision of Quincy, Inc. Comcast Cablevision of San Bernardino, Inc. Comcast Cablevision of Santa Ana, Inc. Comcast Cablevision of Santa Maria, Inc. Comcast Cablevision of Seal Beach, Inc. Comcast Cablevision of Shelby, Inc. Comcast Cablevision of Simi Valley, Inc. Comcast Cablevision of Sterling Heights, Inc. Comcast Cablevision of Tallahassee, Inc. Comcast Cablevision of The Inland Valley, Inc. Comcast Cablevision Comcast Cablevision Comcast Cablevision Comcast Cablevision Comcast Cablevision Comcast Corporation Comcast Corporation of The Shoals of The Southeast of Tuscaloosa of Utica, Inc. of West Palm Beach, Inc. #2916 c/o Comcast Corporation Comcast Financial Corporation Comcast Holdings, Inc. Comcast Mgt Corp dba Comcast Cablevision of Warren Comcast Satellite Communications, Inc. Comcast Sound Communications, Inc Garden State Cablevision LP Greater Philadelphia Cable Interconnect Greater Philadelphia Cable c/o Comcast Corporation Grosse Point Cable, Inc. Laurel Community Antenna System, Long Branch Cellular Telep. Co., Multiview Cable Corporation New Brunswick Cellular Telephone TV Selection System, Inc Wilmington Cellular Teleph. Co., Inc. c/o Comcast Corp. Company c/o Comcast Corp. 0 0 Notice of Cancellation /Reinstatement Insurance. Company of North America CIGNA Insurance Company CIGNA Property & Casualty Insurance Company Pacific Employers Insurance Company CIGNA Fire Underwriters Insurance Company Century Indemnity Company Indemnity Insurance Company of North America Atlantic Employers Insurance Company CIGNAewnpw,bs P.O. Box 13549 November 1, 1990 Philadelphia, Pa. 19101 CITY OF NEWPORT BEACH NEWPORT BEACH CA 92601 We hereby cancel our Bond No. K92988478 issued to TELEPROMPTER CORP. on 10/7/85, in accordance with the terms and conditions of the Bond. You will, therefore, please take notice that as of 12:01 a.m., Standard Time, on the 7TH day of OCTOBER, 1990, the said Bond will terminate and cease to be in force, unless sooner terminated by you. We hereby reinstate our Bond - - -- issued to - - - -. Such reinstatement to be effective THIS BOND HAS BEEN REPLACED BY CONTINENTAL INSURANCE COMPANY. BOND NUMBER BND3362900 -M -216. INSURANCE COMPANY OF NORTH AMERICA DARLENE HODGES, AttorneyAn Fact Principal TELEPROMPTER CORP. GROUP W CABLE INC. 50 WEST 44TH ST. NEW YORK NY 10017 Agent FRANK B HALL S CO OF NY WALL STREET PLAZA NEW YORK NY 10005 Iw a: P " .Company instirance of North Aftwica 2 4 2 3 "0 A E . .Knovit a0 inon by. the" presents; That R/BURANCE COMPANY OF NOWVH AMERICA, a corporation tff the Commonweagh W P@AJinyhi81119, having'i!a P+tl!Fipab office In'the Oty of Philadelphia; Pennsylvania, purausot•to'the following Resolution, adopted by the Board of Otreotars of xile said Company on,pecember 6; 1983. to "witc " NEsmVm Tnei patitiult b A pI 118 and art erm ay -Lsaa. Me rgllaWlab Aaye ailed pOWm the aaadethe,: br ON 6rawr *F Weals. andanakbaa, reebyaiza . t 800 and Pthar t+l r+w�Me F /ie} at, M' 8anlo vta ProaWaat; ylae PreagnL *6,Avaa ad Me *4dideat; a any M fflay bFand. ?e weds Iw abd d? »•ha, n „W iM e.NPMM Nr a1 #A bums. lead 1�1+WApe. eP �paaaCaendamNinmename maraW tin sibu robe'atMSmd ails aebeeteryby lbi CarPdrNa9wetary. ar AhPl ASNfleaCaP6rtln 8tGeeAp, and Me ,aM alM6bnPaara cad Minh: an8'that tin ptdarde *a,s .ny"Pnmdea.dar v"Pritlidwa warty MbitM Ma ft"deadNY eppead,aM QythbMa 9M'9nN+01hoar191eEtsd cr ' ' ep9aelNW W ma eanpenk. sad AaatMYa+n'Faat in ee'awunq.4naW W iM saebueva ut W asy1, +FUaOe as bNW a1 n» CaTPSY end beAht dN daU al tin CemPdM 1hanM tal ' Aay atxn artaed saaaoMln (7I 7M egaMwa:W tin Prwpsn /d 9ah aerw enkw dthe dme.iG aid At.4,a:M:Paet.luofev..aPl rt� oetnb ar away eup4e a ax,'L9`,`'R. eme Gw*m wd;in!,Ytleidvndr.ew at an. eeape^r aab..av taU d'etlteraa M My! Av!ba (a) Ti. ""a” Ones Ra"'A" does _iml ipaasa any *011 bad" 6raaad by Padded a al tae awdd al'taraaae wepwo an Jp»�R' fpBB, May lk. t(76 sad March P9. 197r': dose tteretry nominate, constdnte:and.apPV nt GpgN. T W,; ELLIOTT, BRENDA .,§ ...FAITS , . OBSN J. REED., JOYCE SINGER, DIANE BELL, THOMAS C. MOORE, LAURA WHITE, DAVID R. HOOVER,.DARLENE HODGES; and STEFANO, all,of the City'of Philadelphia, State of Pennsylvania ------ - - - - -- `- - - - - -- Y_ •. 'a (A .X W � 7 m � U a O� � O qm � o O m e O � m C tD 0 3 ty p> ®C Z .each individually it there be more than one named. Its true and lawful attorney-in-fact, to make, execute, seat and deliver on its behalf, and as its act and deed eny.end all bonds, undertakings, recognizances, contracts and other writings In the nature thereof. And the execution of such writings in pursuance of these presents, shall be as binding upon said "Company, as fully and "amply as if they had been duty executed and acknowledged by the regularly efected officers of the Company. at its principal office. IN WITNESS.. WHEREOF, the said R, E. Giveans, Vice- President, has hereunto subscribed his name and affixed the corporate seal of the said INSURANCE COMPANY OF NORTH AMERICA this 4th. .day of May 1990 INSURANCE COMPANY OF NORTH AMERICA by 0'._ COMMONWEALTH.OF PENNSYLVANIA R. E. GiVEANS. vice Presalenl COUNTY OF "h1 111 LPHIA ' sa :• . On 445 4th ay of May ; :A,O. 1940 -. before me, a Notary Public of the Commonwealth of Pennsylvania in en9;for the County of, m0fadIphfa,,qam9 R: E.- Gmeans, V,ice•PresWent of the INSURANCE COMPANY OF NORTH AMERICA to me personally known to be theindividualland officer who executed the pr0¢4ding'in6trument, and he acknowledged that hsexecutid the seme,,and that the seal affixed t6 the preCadiA9 tllatrumeat in. the corporate seal.of said Company; that the said corporater seaVanid his signature,were duly affixed W the lauthorily and dirracHon,pl ft said corpbration, and that Resolution, adapted by f4ei ftd•ot�Oltectore of said Company, referred to in the preceding alerrensenl to now is force. WHEREOF. I have baFeul+ta set myhand•and af8x1 &jny'offIoW b6atM the e-6, Ptifladetole the day and year fir91 af�ve• t ii��'. i NOTARIAL SEAIn 7 OF JUL'A ANNA ROHAM Philadelphta Philad 1v Commissicn'Expiro: !, t�� ��ii�� ed fi `et of INSURANCE COMPANY Of "RTH.AMEAICA, which the foregwy t +1Ytl l�l It olind correct copy, is in4ufl force and eRect;'.•.' . In witness whereof; I have a subscribed my name as Secretary, day_ 91 • TtgS POWER`OF ATTORNEY MAY NOT 8E," TO aP,Cy>;E;xpYiBO 8643,372 Ptd in U.S.A.' aby. 6aftMytkalthe origln ;KPOWEPIOFAFTOANEY, of ftixeit A seat pyre. Carporaf.on, Mtis t J), adrelary - SEP- 19 -'90 WED 15:08 ID:COMCAST TEL NO:714- 285 -2014 #1340 P01 Cartlflcate of Insurance THIS CERTIFICATE 0 ISSUED AS A MATTER OF WrOAMATION ONLY AND CONFERS NO RIGHTS UPON YOU THE CERTIrt WE HOLDER. Title CERTIVIOATE IS NOT AN M76URANCE AOLIOY ANO DOES NOT AMEND. PX1P No, OR ALTER THE GOVERADE AFFORDED BY THE POLIGIES LIATEP BELOW. This Is to Certify that LIBERTY COMCAST CABLEVISION OF NEWPORT BEACH, INC. MU 1 u�L' and 901 W. 16th Street Namesof K address of Newport Beach, CA 90740 Inured. L J K at the Issue date at WE ca llfowle, insured by the ComDanY Under the Paley (les) listed below. The Insurance Afforded by the hadd pWicytiesl is subject to ail theirterma. aneluston9 and conditions and IS not filleted by any ro4unameal Tenn or condition of any cor l or other document with respeatto which thla Certificate may be leeuod. TYPE OF POLICY CERT. EXP. DATE' ❑ CONTINUOUS ❑ EXTENDED Q1 POLICY TERM POLICY NUMBER LIMCONTINUOUS OF LIABILITY COVERAGE AFFORDED UNDER W.C. LAW Of THE FOLLOWING STATES: EMPLOYER'S LIABILITY baay Injury SYA=Wem WORKERS' 3/31/91 WC2- 131 - 098944 -010 AL CT FL IL IN KY MD M1 MS NJ PA TN q6n nan- Co. A" e� epdnyryor80y00D. 5 COMPENSATION e fie. pmean 3/31/91 WC2. 131 - 098944 -150 CA SddIb /NUN Br DiaAAA& 500 000. Pal. umit 00e9ra1 0Cpre11aN•Orner men PNauelerCampwtea renone 3/31/91 TB1 -131- 098944 -020 $2,000,000, Pr9d99l9/C9m919t99 0000/1119119 Ae11reaete 1 J Dedlly injury aria Preperiv DMn6pA LUbngy UR(I ❑ 1 dH o0outl9no� PiganAl And Adradimli IM.N CLAIMS MADE MIT" MT W_ fey �rAH� 01,000,000. aroenlmeN. Other I3000UnnCNOC U SPECIAUEKCL. ENDORSEMENTS ®OWNED 3/31/91 ASI-131-0911944-300 $ 1 olgo, 0OQ, EACH ACCIDENT SINGLE LIMIT.S.t. AND P.D. COMBINEb B EACH PERSON EACH ACCIDENT $ OR OCCURRENCE EACH ACCIDENT S OR OCCURRENCE 'C ANON -OWNED ® HIRED 3/31/91 AS1 -131- 098944 -040 cc Umbrella 3/31/91 TH1- 131 - 098944 -030 $5,000,000. Per Occurrence Excess $5 $000,000. General Aggregate o Liability $5!000$000. Products /Comp. Op. Aggregate LOOATION(S) OF OPERATIONS & JOB d (If Applicable) DESCRIPTION OF OPERATIONS: 1 Locations/All 9perations rl le,W....... eaHRauvH umu Iu continuous or extended term. you wit Do nonce D coverage is terminated or reduced before the certificate expiration date. However. you will not be notified annually of the continuation of coverage. NOTICE OF CANCELLATION: THE COMPANY WILL NOT TERMINATE OR REDUCE THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNLESS_ 30 DAYS NOTICE OF SUCH TERMINATION OR REDUCTION HAS BEEN MAILED TO: hlborty Mt tual Raulnu de coup City Of Newport Beach CEATIFICATE P 0 _ HOLDER _.o ewport Beach$ CA 92658 AUTHORIZED REPRESENTATIVE Ken Delano, Aes't City Manager - 3/31/90 Bala Cynwyd, FA 19004 L J DATEISSUED Of# fib 9elllfkMab ea999md by LIBERTY MUTUaL INSURANCEOROUP se rea9ecm inianowurance as IS afforded by These C.AMPart.. —•— 8S772S Lag C9 F�- h d GC O e �r 0 n E c Q - z t^ v 3� v j t Q � LLJ W O C .A Z 0 LU Cry LU v W tz W W Ct Z L'J LIST OF FRANCHISEE'S /DOCUMENTS FRANCHISEE NAME AUTHORITY DATE Warner Bros. T.V. Ordinance 1197 12/07/66 Services, Inc. Pacific Cable EXPIRATION DATE 1/26/82 Services, Inc. Resolution 6759 4/22/68 1/26/82 Newport Beach Cablevision, Inc. Resolution 6945 3/10/69 1/26/82 Newport Beach Cablevision, Inc. Ordinance 1365 12/14/70 1/26/92 *Teleprompter Corp. Resolution 7379 3/29/71 1/26/92 *Westinghouse Broadcasting Resolution 10019 4/13/81 1/26/92 *COMCAST Resolution 86 -25 4/14/86 1/26/92 Note: The information above relates to the progression of franchisees from Warner Bros. T.V. to present operators of the franchise. *Designates that Teleprompter merged with Westinghouse; and COMCAST is an affiliate of Westinghouse Broadcasting. r n .'.�'� TO: FROM: rl City Council Agenda Item No H -3 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER NOVEMBER 129 1991 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER SUBJECT: CATV FRANCHISES i lffG ACTION: If desired, adopt Ordinances 91 -42 and 91 -43 amending and extending the term of the franchises granted to Community Cablevision and ComCast Cablevision. BACKGROUND: In January 1990, the City Council approved a "shopping list" of items to be included in the new CATV franchises. These included a ten (10) year franchise term. Negotiations since then have yielded every one of the 31 items requested by the Council, and these are embodied in the enabling ordinance approved in March 1991. The one remaining issue is length of franchise term. To induce the City Council to grant an extension longer than 10 years, the CATV companies offered additional channels and expanded video capabilities for the Fire Department. At the last meeting, the Council considered granting 10 year franchise extensions, or 20 year extensions with the added inducements. During testimony, a need for an educational channel was discussed and the cable companies indicated that one could be provided within two (2) years with some adjustments to the current 40 channel system. Council Member Cox made a motion to grant a 15 year extension including the offered inducements plus an educational channel. Council Member Hart made a substitute motion, which passed, to amend that motion only to change the term from 15 years to 10 years and to request additional rate information. During the discussion amendments were made to accelerate the time frames for the provisions of additional services. Page 2 The attached ordinances provide for the following: 1. A ten -year franchise extension. 2. Within two years, provision of a dedicated educational channel, a dedicated fire channel, and additional video equipment to enable fire department broadcasts. 3. Within five years, expansion of the system from approximately 40 channels to at least 54 channels. The CATV companies have been requested to provide the information desired by Council Member Hart. Kenneth Delino KJD:mb Attachments ORDINANCE NO. 91 -43 11 AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING A NON-EXCLUSIVE FRANCHISE WITH COMCAST CABLEVISION TO CONSTRUCT, MAINTAIN AND OPERATE A COMMUNITY ANTENNA TELEVISION SYSTEM WITHIN THE CITY RECITALS THIS ORDINANCE is made with respect to the following: WHEREAS, City desires to amend the franchise originally granted by the City to Warner Brothers, TV Services, Incorporated by Ordinance No. 1197 dated December 7, 1966 subsequently transferred to Newport Beach Cablevision Incorporated and amended December 14, 1970 by Ordinance No. 1365 and ultimately transferred to COMCAST Cablevision by City Council Resolution No. 86 -25 dated April 14, 1986; and WHEREAS, the existing franchise granted to COMCAST Cablevision provides that the City may unilaterally amend its ordinances governing the granting of such franchises; and WHEREAS, City desires to amend the franchise granted to COMCAST Cablevision to reference certain amendments to the ordinances of the City enabling the granting of such franchises; and WHEREAS, City desires to extend the term of the franchise originally granted by Ordinance No. 1197; NOW THEREFORE, the City Council of the City of Newport Beach does ordain as follows: SECTION]. Section 1 of Ordinance No. 1197 is hereby amended to read as follows: "SECTION 1. Definitions. Wherever in this ordinance the following words or phrases are used, they shall have the respective meanings assigned to them in the following definitions; and words or phrases not defined in this section which are defined in any franchise document shall have the same meaning in this ordinance assigned to them in such franchise document, unless the context in which they are used shall clearly indicate a different meaning: 0 (a) 'Grantee' shall mean COMCAST Cablevision, its employees, agents, successors and assigns. (b) 'Franchise Documents` shall mean and shall include all of the following: (1) Article XIII of the Charter of the City of Newport Beach. (2) Chapter 5.44 of Title 5 of the Newport Beach Municipal Code as the same now exists or as it may hereafter be amended. (3) The written acceptance of CATV Franchise filed with the City by the Grantee. (c) 'Street' shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, or right of way whether or not improved, now or hereafter existing as such throughout the City." "SECTION 2. Grant of Franchise. (a) There is hereby granted to COMCAST Cablevision , by the City a nonexclusive franchise to construct, erect, operate and maintain, in, upon, along, across, above, over and under the public streets, alleys, public ways and public places, now or in the future dedicated for public use in the City, poles, wires, cables, underground conduits, manholes and other television conductors, appurtenances and fixtures necessary or convenient for the maintenance and operation in the City of a community antenna television system to transmit television and FM radio signals, within all of the territory within the boundaries of the City of Newport Beach as such boundaries exist on the effective date of this ordinance or as may exist during the term of this franchise. (b) The Primary Franchise Area as defined by Chapter 5.44 of Title 5 of the Newport Beach Municipal Code is described on the map attached as Exhibit A and hereby made a part hereof. SECTION 3. Section 4 of Ordinance No. 1197 is amended to read as follows: 2 "SECTION 4. Term of Franchise. (a) This franchise commenced January 27, 1967 and shall terminate on January 27, 2002. SECTION 4. Section 8 of Ordinance No. 1197 is amended to read as follows: "SECTION 8. Prohibited Activities of Grantee. Grantee shall be prohibited from directly or indirectly doing any of the following: (a) Engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets, radios or other receiving apparatus, or any part or component thereof. (b) Providing any repair service to its subscribers, for a fee or otherwise, which extends beyond the connection of its service and the determination by Grantee of the quality of its signal to its subscribers. (c) Soliciting, referring, or causing or permitting -the solicitation or referral of any subscriber to any specific named persons, firms or corporations engaged in any business which Grantee is prohibited from engaging in by the provisions hereof." SECTION 5. Section 12 of Ordinance No. '1197 is amended to read as follows: "SECTION 12. Annual Franchise Fee. The Grantee shall pay annually to the City during the life of this franchise for the privilege of operating a CATV system under this franchise a sum equivalent to five percent (5 %) of the Gross Annual Receipts from its operations within the City. Such fees shall be paid on a quarterly basis." 3 SECTION 6. Additional Conditions Grantee shall, as a condition of this franchise, provide the following: (a) On or before January 27, 1994, a dedicated educational access channel, a dedicated fire department channel and a video camera, scrambling equipment, and cable connection to the Fire Department to enable cablecasts from the Fire Department Headquarters located at City Hall to all fire stations operated by the City. The specifications for this equipment shall be prescribed by the City Manager and the costs thereof shall be shared by all CATV grantees in proportion to their number of subscribers within the City. (b) On or before January 27, 1997, modifications to its CATV System to enable the transmission of fifty -four (54) or more television channels to its subscribers. SECTION 7. This ordinance shall be published once in the official newspaper of the City, and the same shall become effective° 30 days from and after the date of its adoption; provided, however, that the amendments to the franchise hereby approved shall not become effective unless and until the Grantee files written acceptance thereof in the manner specified in Section 7 of this ordinance and delivers to the City all bonds and insurance policies required to be furnished- in accordance with the requirements of Chapter 5.44 of Title 5 of the Newport Beach Municipal Code. SECTION 8. Acceptance of Franchise. This franchise shall not become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk; and such written acceptance shall be in form and substance as shall be prescribed by the City Attorney and shall be and operate as an acceptance of each and every term, condition and limitation contained herein, or otherwise specified by ordinance or resolution of the City Council. Said written acceptance shall be filed by the Grantee not later than 12:01 P.M. of the fifteenth (15th) day 4 next following the date of the adoption by the Council of this ordinance; and, in default of the filing of such written acceptance as herein required, Grantee shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance of any such Grantee shall not be received by the City Clerk, and such Grantee shall have no rights, remedies, or redress in the premises, unless and until the City Council shall, by resolution, determine that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose. SECTION 9. Ordinance No. 1365 is hereby repealed and all other ordinances amending Ordinance No. 1197 are hereby repealed. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 28th day of October 1991, and was adopted on the 12th day of November 1991, by the following vote, to wit: ATTESTv AYES, COUNCIL MEMBERS: HEDGES, WATr, TURNER, SANSONE, HART, COX, PLUMMER NOES, COUNCIL MEMBERSL NONE ABSENT COUNCIL MEMBER: NONE MAYOR ACCEPTANCE OF CATV FRANCHISE TO THE CITY OF NEWPORT BEACH, CALIFORNIA, AND TO THE HONORABLE CITY COUNCIL OF SAID CITY: COMCAST Cablevision of Newport Beach, Inc. being the person identified as the Grantee in Ordinance No. 91 -43, duly adopted by the City Council of the City of Newport Beach on the twelfth day of November, 1991, hereby accepts the amendment to CATV franchise therein granted together with all of the terms and conditions contained in City of Newport Beach Ordinance 91 -15 and hereby acknowledges that the franchise extension thus accepted does not constitute a franchise granted after enactment of Public Law 98- 549 (47USC531 et 1M). COMCAST accepts this franchise with the understanding and acknowledgement by the City that Section 5.44.170 in Ordinance 91 -15 refers to those technical standards set forth by the Federal Communications Commission or its successor agency. Dated: .2„7 111l COMCAST Cablevision of Newport Beach, Inc. (Seal of Corporation) Un Tithe: COMCAST Cablevision By: Title: COMCAST Cablevision Ap ved as to form: A City Attorney CERTIFICATE OF CITY CLERK I hereby certify that the foregoing Acceptance Franchise was received by me at the hour of o'clock on the `day of 11 1991. City Clerk: a.� O gt/FOVLr' of CATV Y 9 542 Santa Ana Avenue Newport Beach, Ca 92663 November 12, 1991 The Honorable Evelyn Hart r ?1z Newport Beach City Council Newport Beach, California Dear Mrs. Hart: I'm sorry to be so late in sending you my comments. I didn't realize the city council would meet on Tuesday of this week with a Monday holiday; thought I had until next Monday. I hope you will give consideration to some of the following items when thinking about a renewal of the contract for cable television with COMCAST: a. They indicate they intend to scramble their signal to their Santa subscribers in the very near future; when will they do the same to us? We will then have to have decoder boxes even if we have cableready television sets. b. Why did they discontinue itemizing their monthly bills? It is very difficult, or impossible, to know for what one is being charged. c. The program of what is on what channel is available through the local newspaper and requires considerable interpretation to discern what is on COMCAST. What does our $30. to $40. per month buy? d. Of the forty -one channels carried to us in Newport Beach, nine are premium channels (and not very good ones at that), at least one is a channel that does nothing but sell merchandise, and I don't know how many more are devoted entirely to commercial purposes. e. They say they need a long term renewal to enable them to expand their service and the number of channels carried. Is the percentage of pay channels (about 25 %) going to remain the same? How will these additional channels be selected. What input is available to the poor consumer? I would like to see something like Bravo or Gala or AMC as a choice for a premium channel. What about KMEX? Do we really live in Southern California and have a cable channel that only carries a Spanish language channel as a preliminary to its Spice Hits or adults only channel (and doesn't even publicize that channel in its programming). COMCAST does not even carry the Learning Channel or something similar from Orange County. f. Has a study been done of what comparable cable companies provide? Does this company, COMCAST, provide the best service possible in terms of service and stations provided? I do wonder what the fee must be in a place like Fullerton or Placentia where as far as I can figure according to the TV schedule in the L.A. Times they receive 69 channels. These are just a few of the thoughts that come to my mind about the renewal of the contract with COMCAST. Thanks very much for considering them. Yours truly, Joan E. McCauley TO FROM: SUBJECT: ZI City Council Agenda Item No. z -1 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER OCTOBER 28, 1991 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER CATV (4) This item is recycled from the previous Council meeting. In response to Council Member Hart, the attached list shows the CATV franchise terms for all Orange County cities. Also, a list of all complaints during the past year for each CATV company is available in my office for review. KJD:mb It L KenneAJIino 1 s CITY COUNCIL AGENDA ITEM NO. J -1 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER OCTOBER 14, 1991 OCT 1 41991 TO: MAYOR AND CITY COUNCIL FROM: DEPUTY CITY MANAGER SUBJECT: CATV FRANCHISES ACTION: If desired, approve Resolution 91- declaring the intention of the City Council to adopt ordinances amending and extending the term of the franchises granted to Community Cablevision and ComCast Cablevision, MED If desired, introduce for first reading Ordinance 917 amending and extending the term of the franchise granted to Community Cablevision; 1 If desired, introduce for first reading Ordinance 91- amending and extending the term of the franchise granted to ComCast Cablevision. BACKGROUND: This action culminates the two year'process of negotiating extensions to the existing franchises which expire in January, 1992. This item was revisited at the Study Session of September 9th, and that recycled staff report is attached. (7 The CATV soon be in adopted by 6 J i, r companies have submitted evidence indicating they are or will compliance with all provisions of the new enabling ordinance the Council last March. RECOMMENDATION: As discussed at the Study Session, the length of the franchise extension is the one remaining issue. Staff recommends that the term be twenty (20) years on the condition that within five (5) years, the systems be expanded to 54 channels and that certain video equipment be granted to the Fire Department. The attached Resolution and Ordinances have been drafted to reflect that recommendation. Kenneth J, elino KJD:mb Attachments OREC = AGENDA PRINTED-"- C/ C' ED rZJ JI Tom and Anne Richards 270 Cagney Lane, #107 Newport Beach, CA 92683 °ED SEPITYt�RKg91 N2t?n , FEAC ! • % 'A 11.A .6,- 1ML 2 $ C', °' amcgaaa p ❑ ❑pppppp DEBORAH SPERBERG 2a s� tollil '1$4 Kzx S(Y. Sc,v -a A C4l cc W a Co�'c"Mss4 ate - ev-Z%CA 4txA a wi' e ILL sev v kcrs, eat, 4a eov.44uv k c�o `f4A bli:c. We da VLV+ 4.-c1 W bvR- �, 2 -TV Se-jts .:.� eNm i kc , (OUNUL AUNDA "t+wv NA 4 ap+L` - W'*x 014 die � 809 SFAWARD ROAD CORONA DEI. MAR, CAIAFORNIA 82625 ,�-o *-� ,j E 9i F c A9 JA C�a q-O`z:,7 %14 -741- 64-m4 -. * 24, ,Ijti 2 41991 4� Et cr Rt %�) �All I �> /%AL)jj- tzf57 r-WDCJ,4-C- DIEX A I �> /%AL)jj- tzf57 r-WDCJ,4-C- LL Div. OC, T 0 Dif A T'l 1 4-- e>2 o,j e, LL Div. OC, T 0 Dif 0 M 4y (? - `D�scc�7CCt My ee z l 146 �( Iu r s �a M &ic, Skae4 c is L 3 T .eaaq s . ��d eaom r-r' 2 ,OG L- r r-k r-M-0 ,VLy IR90 - REcd c.nenc;�-j 6�4. " Ls�nr��o S€¢�ccE PA%A 19 R (D Af'?« 1Go0 ict t>l S t ,4 c) fcJ2 pfnor+E Cq�cS CaMdo.ST. �Z1hJ � UC IJO rcEC�pTr o�J LtL rte- c�c� ,�c�.�P'Tt ,�j �irJ �7 .1 HAJ E GAS ro eSol So.v. bF TGi �' cixC.9 �t c S �r�s'�' a'3�.rt•- µ4�ric �� �'w�va� �c C,2��f i c»!3� ue- "� . CoP►g c)e N.j CerTEV s oN7 tit el E� ACr-, . U�1C2C1A3E3 �� ao�l� P2 5,-ZOr� f1J TL1bS� y� osCAA�`'� IticYt6 �S X10 eC -COQi iaN oe Z �EC q.� �'4I�S -/ s Gw 4I 4o • a. CCNI-4A s,- ,s�o� T° IS`07 r ( 234 S. Ma s 5 , Sa%m+ At-+A G ct a-7�07 Z14 -54A 64-84- =AMst� a r ^ y z 8c rZ VK y �� AC�rtAcl�T o� �?zfnn Tfi� t►J Gy'DEV�7' of �a �"�l f'� Ems' +o - 1::;2V,< cD.�2 AtJ APoLO&e( � \ L beLAI 4 S Qom' Ufa ,� "f(nC- C l"q C©\5"4t� L. M� GAF =si- t�J G7� '>ocv'- Q VA L� Ac?1�� O - � o --�E &oC4CCC- two ,,OA& sd f3� No7- f4 wd(z� CUSTOMER SERVICE CALL (714) 542 -6222 AUTOMATED ACCT BALANCE (714)285-2060 15 007 0060626 5/06 5/06 JUNE 01, 1991 1 JUNE 30, 1991 1 ON RECEIPT PREVIOUS BALANCE 22.52 MDNTHLY SERVICE 21.45 BASIC - ADJUSTMENT 1.01 CR LIMITED SERVICE - ADJUSTMENT 1.05 CR FRANCHISE FEE 0.97 * *AMOUNT DUE ** 742.88 * * X X * * X * * * * 9E X * * <-.Zd,an j THE BALANCE ON YOUR ACCOUNT IS NOW PAST DUE. IF PAYMENT IS' NOT RECEIVED IN THE NEXT 10 DAYS. YOUR ACCOUNT WILL BE SUBJECT TO A $10 LATE FEE. r __ - -� PAYMENTS RECENED AFTER MAY 22 ARE NO7 WCLUDEO W THIS STATEMENT 22.52 0.00 1 21.45 2.06 0.0 0 0.97 I $42.88 nN 'AMOUNT FOLLOWL0 BY A (Cli) IS A (Aitill (1L A (iI bil -! /%N(,I: 111 ANY DISCREPANCIES ON THIS BILL MUST BE REPORTED WITHIN 30 DAYS )(X * * * )E* *X * ** * *X *** *ORDER DIAL-A -HIT MOVIES*** * * **** ** * *X** *X ** X * * *** *MOST MOVIES $4.95 EXCEPT CH 39 MOVIES ARE 85.95 *x * * **** ** 1- 800 -885 -3737 CH 37 ** ** 1 -800- 885 -3838 CH 38 ** ** 1-800- 885 -3939 CH 39 ** SEE CHANNEL 36 FOR DAILY SCHEDULES PREVIEW AND ORDERING INSTRUCTIONS X COMCA'3T COMCAST CABLEVISION OF ORANGE CNTY 1000 E SANTA ANA BLVD.SANTA ANA,,CA 92701 -3916 DATE MAY 22, 1901 ACCT.x 15 007 0060626 USE ENCLOSED ENVELOPE AND MAKE PAYMENT TO COMCAST CABLEVISION P.O. BOX 10017 VAN NUYS, CA 91410 -0017 826415007006062600042887 Cali ',. COMCAST tr tt, qo-A -o CM D7 22 7742.88 ON RECEIPT . ._ IIIIInIIILlllllihllu 8264 1500 4578 JERRY BERN 208 36TH ST NEWPORT BEACH CA 92663-3117 ��� 0 T7A,,4 4: 2 S 5 -2 0(4- 6 May 1991 To: Cancast Cablevision Attn: Jim Bequette , Vice President David Barford , General Manager Mary , Custamer Service Supervisor From: Jerry Henn Act. # 15 007 0060626 Per my conversation this AM with Mary please have your field man put my equipment on the side of my house back the way they found it when they disconnected it for no reason on Friday last. It should have the correct screws on the plate and tightened in such a way as to compress the watertight gasket behind the plate. White silicone seal (or silver) should be used around the cable where it goes through the plate. A credit should be issued for two days of non - reception. This vignette is just one more of Ccrcasts screw ups over the past few years; as has been documented in my letters to your company, no reception, poor reception and on and on. Once again I must also complain about the poor quality of the AUDIO transmissions of the Newport Beach City Council meetings. There is a 60 cycle hum present most of the time, and makes listening hard. The enclosed clipping might be of interest to you. LCT7-�y T'o �,�,sT a.S3oJt i(���i �ecJ A-3o.r, (�G LF 4V . UOS - Sot'X'C- W A}yv.ok -k F c— F3A'-st C CAS3 LE c�tJ — (jvT 1�tosTfPc�c cticc� c?2�1 Q 17A �jlt�J 4---- ,y Free y needed for. ' � • I It all began with our elected officials rocking most of us to steep with the old "the- public- needs - protection" ploy. Protection from making choices, protection from the "dog -eat -dog" battle of business in its efforts to supply a better product or service at a better price. The same faulty logic that would not confine Costa Mesa to one supermarket chain, or one oil company to operate all of the town's gas stations, was used to make sure that vFe can have only one TV cable company. The reasoning thatwas used to break up AT&T so we could h rye Choi in our iii: v you How far s enforce the was our we and are exercising . their control over? Don't pooh pooh? Keep in mind what can happen to you if your planter has some hemp growing in it. You can say goodbye to your car, your boat, your house, your family can be on the street and you in jail (if there is room). All of this and your planter couldn't impact any politician's career. You start something tike a competing TV cable company that might fail to value televising City Council meetings ad nauseum and you could be in real trouble. But seriously, folks. How about the lousy cable TV service and the escalating charges? How about the fact that every other electronic system such as sound with laser discs, PCs getting cheaper and more powerful, telephones with voice mail, cellular, etc. are all going honkers with hreak-throueh after. break- through? How i up and available programing will be expanded for less money. A neat effect of the potential for competition is the effect that it can {and } probably will) have on our present supplierst of TV cable service. They will do their best t to shape up and try to make sure that a competitor won't even bother to come to town. Competitors will most likely show up. There are just too many goodies to tempt ul with, once these potential suppliers find out there is a free market for their marvels. There have been some court decisions th t supposedly undid this monopoly situation. i And if you inquire about becoming a i competing TV programing provider, you will hear` Yes." Keep listening. it still adds up tp no. ., t. Predictions were grade that arrogance in i oricina,•and service were. inevitable because �- cvr vn hra rF a - o 15: rR r: eatsd ibr t itnSSI comp Ns. mhavra law thasonttaws TVf ; f to ar�ek He esreitirrc skw ` st Be`aet cabal o tyl. e el rf ttie 4ab)an m�' s bask -and be ready €oi ' I totdl. r� have anx systertnfiis(f s n mad€ yols` f tea whn understand the I R bte tl . nC and shove avai}ab!`e:., n .k�.w' �, . , Ct wiH certainly be sup acid chettpet, A hani a Costa Mesa resident, i .g d•' 1 rnmen6s' o to or we won`t huy is. And gmbably w t" -. the -&. m oPrhe Libertarian Party of -y franchised even. itiyoiye cable}, H}g wr ens wilt sharpen Orange r., `'" ".jtrL o"t° September 29, 1987 Jerry Bern 2m8 36th Street Newport Beach' Ca, 92663 Mr" Ken Qelino Office of the City Manager P.O. Box 1768 Newport Beach, Ca. 9'2656 Dear Mr" Delinu: Once again I must write to you about Comcast Cablevision. Attached is mu letter to Mr. Kezar. These rate increases are waxy may out of line" Over 40% increase in one year? I realize rates and program selection are not something in which our City gets involved, but maybe there is an answer somewhere. y/ If I raised prices to my customers as flat out Of business, but as Comcast � the other cable company. Where du we go from here? Sincerelg, Jerry Bern & I mould be can't 90 to I ` . ,'S' eptember 29, 1987 ��pr Jerry Bern 208 36th St" Newport Beach, Ca. 92663 L-A Thomas Kezar' General Manager Comcast Cablevisign 1400 North Main Street y �� ^ Santa Ana, Ca" 92701 � Mr, Kezar: \ Thinking that the bill dated ugust 22 that received from your company was in error as to the amount, I called Comcast for an explanation of the additional $5°00 charge, The lady told me there was a price increase" Not taking that too kindly, I stopped by your offices and spoke with your Ms. Gruss mhol told me there was indeed a price increase. I expressed mu displeasure of this because; 1. This increase represents a 19% price rise" 2. Just last October you imposed a whopping 23% price, hike" 3. I was not informed of this Price increase until T received the September bill on August 25^ Everyone has Price hikes, but to raise prices over 40% in one year when one is a monopoly is banditry" I have previously expressed my displeasure to you of former price increases, and for your selection of services that I am Pyin8 for but have no use and that I feel have no value" I am enclosing a cheque for $28"00, and now that I have been properly notified of this latest price increase will pay the higher amount next time" T feel even the charge of $28"00 for two months is too steep. I should 90 out and bug a good antenna for $29^00 and put an end to this! What about retired or people on fixed incomes ? I am expressing my displeasure of this to Mr. Delino, the Newport Beach City Manager, and am also writing The Newport Beach City Council and asking for a Public discussion of this rate matter" Sincerely, Jerry Bern � / 0 Comcast Cablevision 1000 E. Santa Ana Boulevard Suite 220 Santa Ana, CA 92701 (714) 285 -2000 COMC14$T May 16, 1991 Mr. Kenneth J. De.lino Deputy City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Dear Ken: 0 This letter shall serve as Comcast Cablevision's formal request to renew the cable franchise for the City of Newport Beach. Please find enclosed the application fee of $1O00.00,. along with a map depicting the primary franchise area served by Comcast. Comcast feels a 25 year franchise would be most beneficial to all parties concerned. I look forward to finalizing any outstanding issues and complete the renewal of our cable franchise. Best Regards, Fly/ /.,1ti/ David Barford Vice President and Comcast Cablevision DB:bap Enclosure General Manager of Orange County (WHOL AL-40A 147.2 GALAXY DRIVE NEWPORT BEACH, April 3, 1991 Mayor Phil Sansone & City 3300 Newport Boulevard Newport Beach, CA 92663 APR Re: 6:aatc .Cxtaie - laeevsaon - k&asasag iai n Honorable Mayor Sansone & City Council Members: cirr j99j nn. fRN As a long time resident of Newport Beach I was very surprised to learn this afternoon that the City does not monitor, supervise or police its franchisees, specifically Comcast.Cable. Due to CC &Rs in our neighborhood, and perhaps City regulations as well, we are unable to install a television antenna and are forced to subscribe to Comcast Cable TV, a company with a literal monopoly on this service in the City of Newport Beach. I will not comment on cable television fees other than to offer that they are outrageous and continually increasing, however, that is not the subject of this letter. At approximately 9 :00pm on the night of April 1st during Easter vacation one of our four young children was flipping from one TV channel to another. When I walked into the room I was asked to explain what was being shown on, I believe, Channel 39. while this channel was distorted, I suppose for viewers such as ourselves who do not subscribe to that specific channel„ there were clearly identifiable and explicit po- nographic, scenes visible to anyone viewing it, including our children. In .addi- tion, there was no jamming of the audio at all, the grunts, groans and pornographic dialogue was crystal- clear to anyone listening, including our children. I am no prude and maintain a philosophy of "live and let live" as long as the preferences of others are not imposed upon my family. However, I do believe that the same moral and ethical trust that we place in the hands of our elected officials should be extended to any City "franchisee" maintaining a monopoly on any service, particularly cable TV which, is in most every Y ome -:irk " av community. g SAN t/7 NK � 5 11 I am deeply disturbed by this invasion of our privacy and most disappointed that there is apparently no existing vehicle within our City to govern, supervise and police such a sensitive and influential medium as cable television. while I usually support less governmental control at all levels, this is one area in which I strongly believe more governmental authority is demanded. Your time and review of this letter is appreciated. Very truly yours, j� 4 hfA 114 AUM' William R. Patton WRP:mhs Telephone; 714 - 474 -2000 Telefax: 714 - 474 -7664 M 1 ORDINANCE NO. 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 Subscribe'r 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 1 To the extent any conflict i 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 "Commu4 7ty 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; 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,j'nder an existing franchise or not, offering to furnish, and actively manage and opera,t�e 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 applicant's 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 constithte 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) drays 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 grantedy 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 at4the 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 ITccompanied by an application fee in the sum of one Thousand .Dollars ($1,0:00.00), 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 acbeptance 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 materiai 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 by the original Grantee. It Cannot P 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 contr'bt,. 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. 5.44.050 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. i 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 z' *asonable 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 E3 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 permified -by applicable law. I. Any such franchise granted shall not+.relieve the Grantee of any obligation involved in obtaining pole space from any department 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 x,. 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, her *tofore or hereafter enacted or established. r.; D. Neither the granting of a franchise hereunder nor any 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 IM', 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 10 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 T 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 tha� thirty (30) days prior written notice of intenz6.ion 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 s`0.• 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 11 0 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 fyll 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 anq, 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 Cha�ter, 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 . M 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 i 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,1�oards, 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;. K' 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 q erations of the Grantee of any franchise granted pursuant to ths 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 Managet 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 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. e, 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. The 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 L" 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 shol have the authority to promulgate such rules, regulations, terms and, conditions governtng 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 Grantees 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 16 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 colt to the City of Newport Beach. D. It is the additional policy of the Cityrxo 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 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 (3'0) 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 te'ination 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 m accepted standards of the industry to the effect that subscribers shall receive the highest possible service. 5.44.180 ,echnological 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 of 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 improvemeA 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 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: 19 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 r improvements or modifications. 1;. 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 systR improvements or modifications deemed desirable by the City but Grantee shall not b8: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. M� 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. 5.44.209 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 0 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 control? -,pd by the City as the City Manager shall designate, Except however, that Grantee shall not be r.; 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. 21 Such a report or reports shall 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. 5,4.4.210 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 busine4f hours and such extended service hours as necessary to serve the needs of subscriber,. 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 Grantees 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+�y subscriber. 2. In the event that its service to.fny 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 C 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 applicalA16 law, Grantor may use Grantee's subscribers list- for the purpose of communication wi•i<h 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. 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 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) rer - 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 mutual lRagreed 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 0 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 night's 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`Iules and regulations applicable to CATV systems operating within the .City, whether theu;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 MA 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 %ommence 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 (3'0) days after "a final decision by the hearing officer, whose decision shall be final. Such 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 n 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 thisl)brdinance, The City Clerk shall cause the same to be published once in the off- icia,l;; 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_21, by the following vote, to wit: AYES, COUNCILMEMBERS HEDGES, WATT, ATTEAZT: CITY CLERK TURNER, SANSONE, HART, COX, PLUMMER NOES, COUNCILMEMBERS NONE: ABSENT COUNCILMEMBERS NONE' r MAYOR M xa. 17 July 12, 1990 City Council/Mayor City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 cCI AU ����s N0__F -4 �c0 .. :.' 0 �On' As a resident of Corona del Mar I have no choice but to be a subscriber to Comcast Cablevision for my cable services. This would be fine, except they provide poor service at a premium price. I believe it is in order to address my complaints to you, as well as to them. They do not appear to have adequate personnel to accommodate the number of inquiries: I have never called for a service representative and had a wait less than five minutes; more often is is in excess of ten minutes. Even with a total loss of cable reception I must wait a minimum of a day or two before a service technician can visit. If the remote control or the box malfunctions I must take it too the service center myself, though I pay dearly for the rental of such units. I grit my teeth each time I pay the cable bill, as I consider it an outrage to pay $5 a month for each additional cable hookup, and $5 a month for a remote control. For this, I would expect exemplary service. Particularly in Newport Beach, where we expect and receive top services for the privilege of residing here. Thank you. Sincerel Cynthia Mulcah i. ✓ r, i r Grp' N■ S ;x WTOt ® (OU t1L AGENDA P10 - 9 Vicki Zimmerman jull 9 19M 2115 Santiago Drive Newport Beach, CA 92660 -3839 714/548- 3051 - home 714/432 -5725 - work vL Ze 4 June 21471990 RECEIVED JUN 25 big CM Cam To the Mayor and city council xEweo�it e of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 To TAbom It May Concern: I am outraged to learn that Newport Beach has an agreement with Cable which prevents the airing of free public access programs in the cities of Newport Beach and Corona del Mar. To add insult to injury, it was further explained to me that if I want to watch a cable access show, a lease agreement must be bought for $75 per half hour. This is ludicrous and I ask you to reconsider this point when making your next agreement with Commcast or any other cable monopoly when the contract is up for renewal in 1993. I find it highly elitist that Newport Beach would make such an arrangement with Commeast to deny citizens from free cable access. Ccamrast freely shows a wide variety of cable programs in other cities. Why would you implement such an agreement and create a disservice to the people of Newport Beach and Corona del Mar? I look forward to your explanation. t o Vicki Zimmerman P,.S -. d am interested in seeing . "Spectrum News" which was profiled in the May 20, 1990 Orange County edition of the "Los Angeles Times" newspaper. (calendar section). 4 7 a JTTa ,r sg. v Dir. DEr.. i , t "min ihr. p PCEice r, 61 e O`�s�� (42I a 17? Coot e r 4 C )'Tq eA h,c,q y' 5 1 r s ADA /qin 14 lVvTlllj —10 coA1o4.Rt)i bavrrlit Jvr✓iev of k:r afT7'jKO 0 '-;,,Iors, cvewy 014f CA 4,9 d for ar 3Jr,S, 6-croee SoMtione rhe 7- rh d,4,v s �t/ a eo.4 zr r l do, i J, AWr k&a4 a _Z_ _L dkk L c cl Fro m 1Jm -6-, 3 ed, b ul hVA'j !QW. 7a 'k-,eqav In" .1' S AlrWI-171 -e J 4t'YOIW L jy r-. 74,rP'e 1,41014, Ty 4,7.' Srrille e hhi,,r brrl, rz 64 Lolve7%r tt I/C i r- Jzez11ee .,(/l, Ale4loel_lTege P*,l ewo 4 -C,4 I/ 6'F 4 z;14d (014,ble e'�, �Ilht 4"qhfeqj7-, RECEIVED FH 16 1990 CffV CLERK CITY Of M�MQT pr.rlw W. R awk sw3fol A%" Sw* 0 BY THE CITY COUNCIL CITY OF NEWPORT BEACH FEB 1 21990 AJ W� 01 /30190 Newport Beach City Council 3300 Newport Beach Blvd Newport Beach, CA 92663 Dear Sirs; )?ECEIVEID FEB 1 1990 an e K & ry This letter is to inform you that the customer services of Q t,'4Mb1* F are sadly deficient. The last time I had to call their offices I was on hold for 29 minuets. This is totally unacceptable. Please make sure that this issue is u addressed before you renew their contract. TM t r,. #nen t , €u�i�1iR• Uif. i r 6, CC whie1 Dire 115 SiA�y, Brad Barre 431 Canal St Newport Beach, CA 92663 714- 646 -1822 ORDINANCE No. 86 -17 AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING ORDINANCE No. 1197 TO EXTEND THE AREA OF A NON - EXCLUSIVE FRANCHISE WITH GROUP W CABLE TV COMPANY TO CONSTRUCT, MAINTAIN AND OPERATE A COMMUNITY ANTENNA TELEVISION SYSTEM WITHIN THE CITY. The City Council of the City of Newport Beach does ordain as follows: SECTION 1. Amendments. Ordinance No. 1197, an ordinance of the City of Newport Beach granting a non - exclusive franchise to Group W Cable TV Company to construct, maintain, and operate a community antenna television system within said city, adopted by the City Council on the 27th day of December, 1966, is amended so as too, add to theA,-' description of the franchise area appearing in Section 2 "Grant of Franchise" of Ordinance No. 1197 the description that is attached hereto as Exhibit "A." SECTION 2. Acceptance of Franchise. This franchise shall not become effective, for any purpose, unless and until written acceptance thereof shall have - been filed with the City Clerk; and such written acceptance shall be in form and substance as shall be prescribed by the City Attorney and shall be and operate as an acceptance of each and every term, condition and limitation contained herein, or otherwise specified by ordinance or resolution of the City Council. Said written acceptance. shall be filed by the Grantee not later than 12:01 P.M. of the fifteenth (15th) day next following the date of the adop- tion by the City Council of the ordinance; and, if the filing of such written acceptance by any such Grantee shall not be received by the City Clerk, then such Grantee shall have no rights, remedies or redress in the premises, unless and until the City Council shall, by resolution, determine that such acceptance be received or filed, and, then, upon such terms and conditions as the City Council may impose. 0 0 SECTION 3. Acceptance Fee The Grantee shall, upon the acceptance of this franchise, pay to the City of Newport Beach, in consideration of the granting of this franchise, the sum of $2,500.00 as and for an Acceptance Fee. SECTION 4. Effective Date. This ordinance shall become effective 30 days from and after the date of its adoption; provided, however, that the franchise hereby granted shall not become effective unless and until the Grantee files written acceptance thereof in the manner specified in Section 2 of this ordinance and delivers such accept- ance in accordance with the requirements of Chapter 5.44 of Title 5 of the Newport Beach Municipal Code. SECTION 5. Publication. This ordinance shall be published once in the official newspaper of the City. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 9th day of June 1986, and was adopted on the 23rd day of June 1986, by the following vote, to wit: AYES, COUNCIL MEMBERS: Agee, Cox, Hart, Heather, Maurer, Plummer, Strauss NOES, C ABSENT ATT ST: CITY CLERK r 1 GWD %cg October 30, 1985 OANGE COUNTY REORGANIZATIOS:O. 85 i EXHIBIT 'A', PAGE 1 OF 2 �j LEGAL DESCRIPTION OF 1 'I ANNEXATION OF BAYVIEW PROJECT TO THE CITY OF NEWPORT BEACH 2 All of that certain parcel of land situate in unincorporated r 3 territory of the County of Orange, State of California, being a l.< 4'. portion of Block 51 of Irvine's Subdivision as shown on a map 5 recorded in Book 1, Page 88 of Miscellaneous Record Maps, 6 Records of said County, said parcel being more particularly 7 described as follows: 8 9 Beginning at the most easterly corner of Lot 147 of said Block 10 51, said corner also being the most easterly corner of Tract 11 No. 1499, as per map recorded in Book 44, Page 47 of 12 Miscellaneous Maps, Records of said County; thence along the 13 northeasterly line of said Block 51, S 490 21' 45" E 1275.93 to 14 an intersection with the northwesterly line of "Acacia Street 15 Annex" per City of Newport Beach Ordinance Number 837; thence 16 along said northwesterly line S 400 38' 15" W 1266.69 feet to a 17 point on the 2000 foot radius curve in 'the southerly line of 18 the deed to Newport Harbor Union High School District recorded 19 July 1, 1965 in Book 7578, Page. 670, of Official Records of 20 said County, a radial line to said point bears N 00 27' 40" E; 21 thence westerly along said curve and southerly line through a 22 central angle of 120 20' 35" a distance of 430.85 feet to the 23 most easterly corner of that certain parcel of land described 24 as "Servient Tenament" in Exhibit "B" of a deed recorded April 25 22, 1975 in Book 11382, Page 1898 of Official Records of said 26 County, a radial to said corner bears N 110 52' 55" W; thence 27 along the southerly line of said deed S 570 46' 05" W 77.81 28 feet; thence S 640 53' 40" W 161.27 feet; thence 29 S 640 271, 03" W 181.82 feet; thence S 670 01' 41" W 381.32 30 feet; thence S 750 13' 58" W 102.44 feet.; thence 31 S 120 39' 46" W, 17.73 feet to the beginning of a non— tangent 32 urve concave northerly and having a radius of 1562.00 feet, a EXHIBIT "A" I- M. ORAJC'�"­CIDUNTY :REORGANIZATION O. 85 .=' EXHIBIT '.A' , PAGE 2 , 2 LEGAL' 'DESCRIPTZGN 0 4 ANN57tATIfl;7 BAYVZEd ?ROJECrO THE 'C t OF- NEWPORT BEACH i 1 radial to said point bears S 300 22' 27" E thence westerly g along said curve through a central angle of 90 20' 53" a 3 ( distance of 254.85 feet to a point on the southeasterly 4 prolongation of the southwesterly boundary Of Tract 1501, as 5 per map recorded in Book 50, Page 16 of Miscellaneous Maps, 6 Records of said County; said line also being the northeasterly 7 line of the south one quarter of said Block 51 and the 8 northeasterly line of the "Upper Buy Anns;:ation" per City of 9 Newport Beach Ordinance Number 748; thence along said line 10 N 490 2'1' 54" W 494.39 feet to the southerly corner of said 11 tract, said corner also being the southerly corner of said Lot 12 147; thence along the southeasterly line of said Lot 147, 13 N 400 37' 27n E 2640.31 feet to the point of beginning. 14 15 EXCEPTING from the hereinabove described parcel, that portion 16 offered for dedication and accepted by the County of Orange by 17 Instrument No. 85- 138036 and Instrument -No. 85- 138037 both of 18 Official Records of said County. 19 20 The hereinabove described parcel contains - acres of land, more or less. 21 Attached hereto and made a part hereof is a plat designated as 22 Exhibit 'B'. n 23 This proposal does meet the approval of the- Orange County Surveyor's Office. 24 C. R. Nelson, County Surveyor 25 r. 26 Deputy County Surveyor 27 Date_ 28 29 30 31 I 32 �5 =s. -a JA Er H 3 ±7 b tr i1 to UNINCORPORATED I� cy J TR . 1501 DRY — 11 A C) — 1601 11 J ) - A0 y'r Z�- in �{ A Zr CD�Xi1 qtr sac x�n {m A LINE LpT = SLOCK 51 RVINM9 CUO PER M.R. Ql^•W Je:. R ° lsf"v , //J L 2Sa.65 / A--�N- I% OlfY� Oq ,Ozmtw M.F.Z' 7P05'50'G Ia52' --pp•S gl'S3'00 °L` 209.67' N66 °12100 °G IICi.00' Olt cxrri - �t�@� N7F °1 \ Lws c p.R It381J11§99 _TT' N 64° 99'40.1= !^o1.ZT' �� NS'1 °�•A��E � / i Oq 4 y 9 as nse2ireae --' Q n 6 TlIo )�� 5'LYLINE or Or- cej4w�v 9y z oR.asTar� z0 -• g NWLY LANE `Dr -Arj 5 REST AMAP -,° CctV CF tic- WFC*LT FtiZ ACC ORD. 631. �A s a TERRI i O Y ELA CLit. fc%"#W5 i+ X H O \ ^V V 'Q rA= 4' r Ar O tJ Bi to A Z 0 rA UL �3 n ur y tJBt "t2'saa2tr�J t' �m to zz SO 14 IZZA no �l w '$ N 40i, \SH iS "E 12tdo.c8t� O f cu Ra to PGROR. Z G7 M 0 O Y k w to O 0 L7 b z H ra 7 '3 H p O 06 CA • • 159- 1000 -1 GWD /cg October 30, 1985 ORANGE COUNTY REORGANIZATION NO. 85 EXHIBIT 'A', PAGE 1 OF 2 LEGAL DESCRIPTION OF , ANNEXATION OF BAYVIEW PROJECT TO THE CITY OF NEWPORT BEACH 2 All of that certain parcel of land situate in unincorporated 3 territory of the County of Orange, State of California, being a 4 portion of Block 51 of Irvine's Subdivision as shown on a map 5 recorded in Book 1, Page 88 of Miscellaneous Record Maps, 6 Records of said County, said parcel being more particularly 7 described as follows: 8 9 Beginning at the most easterly corner of Lot 147 of said Block 10 51, said corner also being the most easterly corner of Tract 11 No. 14990 as per map recorded in Book 44, Page 47 of 12 Miscellaneous Maps, Records of said County; thence along the 13 northeasterly line of said Block 51, S 490 21' 45" E 1275.93 to 14 an intersection with the northwesterly line of "Acacia Street 15 Annex" per City of Newport Beach Ordinance Number 837; thence 16 along said northwesterly line S 400 38' 15" W 1266.69 feet to a 17 point on the 2000 foot radius curve in 'the southerly line of 18 the deed to Newport Harbor Union High School District recorded 19 July 1, 1965 in Book. 7578, Page 670, of Official Records of 20 said County, a radial line to said point bears N 00 27' 40" E; 21 thence westerly along said curve and southerly line through a 22 central angle of 120 20' 35" a distance of 430.85 feet to the s 23 most easterly corner of that certain parcel of land described 24 as "Servient. Tenament" in Exhibit "B" of a deed recorded April 25 22, 1975 i'n Book 11382, Page 1898 of Official Records of said 26 County, a radial to said corner bears N 11c '52' 55" W; thence 27 along the southerly line of said deed S 570 46' 05" W 77.81 28 feet; thence S 640 53' 40" W 161.27 feet; thence 29 S 640 27' 03" W 181.82 feet; thence S 670 01' 41" W 381.32 30 feet; thence S 750 13' 58" W 102.44 feet; thence 31 120 39' 46" W, 17.73 feet to the beginning of a non- tangent 32 urve concave northerly and having a radius of 1562.00 feet, a O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 RANGE COUNTY REORGANIZATI NO. 85 EXHIBIT 'A', PAGE 2 Or LEGAL DESCRIPTION OF ANNEXATION OF BAYVIEW PROJECT TO THE CITY OF NEWPORT BEACH radial to said point bears S 300 22' 27' E; thence westerly along said curve through a central angle of 90 20' 53" a distance of 254.85 feet to a point on the southeasterly prolongation of the southwesterly boundary of Tract 1501, as per map recorded in Book 50, Page 16 of Miscellaneous Maps, Records of said County; said line also being the northeasterly line of the south one quarter of said Block 51 and the northeasterly line of the •Upper Bay Annexation• per City of Newport Beach Ordinance Number 748; thence along said line N 490 21' 540 W 494.39 feet to the southerly corner of said tract, said corner also being the southerly corner of said Lot 14,7; thence along the southeasterly line of said Lot 147, N 400 37' 27" E 2640.31 feet to the point of beginning. EXCEPTING from the hereinabove described parcel, that portion offered for dedication and accepted by the County of Orange by Instrument No. 85- 138036 and Instrument .No. 85- 138037 both of Official Records of said County. The hereinabove described parcel contains _ acres of land, more or less. Attached hereto and made a part hereof is a plat designated as Exhibit °B'. This proposal does .meet the approval of the Orange County Surveyor's Office. C. R. Nelson, County Surveyor e, By_r__"', Deputy ounty Surveyor sw'Lf TR. 1501 A° .(m Nn PZ{ j n: Jml ® �i zmz: y 6Xm yl � win n A • �iJ J 1501 -f lf1( UN0 LL7T 161 BLOCK. 01 pMNW "PER M.R p.9'2C se IC`s` L . Wers `W 107.62' 71°06` DO• C 10162' C Op ®q9. . ..� wesew'00'G R& alb kq @ 26'62'WW 418661 5�L-f Lima 0A.11°j9 /Ahlb N64.•'5sf"C 16157' 4y 9q � N51 T 05 C / \�• ,�� C'LYCOR Nh � (- r99 arc i18e2/to99- -n.�•, t��j. L*M (� aR.7xrp/v�o --� NWLY LINT: ��A J60 V 4 TERRI i JRY 0 y n i1rg'g b. X Y H 14 O z O 1 O to 0 x tv r m 4 to g S m x o'r, 8@ m o y. x y . x no O z "- zi 0 i z 0D tA a tie0 A L RESOLUTION No. 86 -25 tip t A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE SATE OF GROUP 'W CABLE, INC. PURSUANT TO SECTION 5.44.060(g) OF THE NEWPORT BEACH MUNICIPAL CODE AND REPEALING RESOLUTION No. 86 -22. WHEREAS, Group W Cable, Inc. ( "Group S: ") is the owner of the cable television system serving Newport Beach, California; and WHEREAS, all of the stock of Group W is currently owned by Westinghouse Broadcasting and Cable, Inc. ( "Westinghouse "); and WHEREAS, Westinghouse has entered into an agreement to sell the stock of Group W to American Television and Communications Corporation; Century Southwest Cable Television, Inc.; Comcast Corporation; Daniels & Associates, Inc.; and TCI Holdings, Inc. (or their designated affiliates or assignees); and WHEREAS, pursuant to this transaction, it is proposed that Comcast Cablevision of California ("Comcast") will become the cable television operator in Newport Beach; and WHEREAS, Section 5.44.060(g) of the Newport Beach Municipal Code provides that a cable television franchise can- not be sold, transferred or otherwise disposed of, in whole or in part, by sale, merger, consolidation or otherwise, without the prior consent of the City Council, expressed by resolution; and WHEREAS, Group W and Comcast have requested the City Council of the City of Newport Beach to consent to these trans - actions,.as set forth in the attached letters dated February 19, 1986 and March 3, 1986, attached hereto and marked Exhibit "A" and incorporated herein asp though fully set forth at length; and WHEREAS, the City Council finds and determines that the proposed transactions are in the best interests of the City of Newport Beach. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach, that pursuant to Section 5.44.060(g) of the Newport Beach Municipal Code, the City Council hereby consents to the subject transactions. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to send a certified copy of this Res- olution to COMCAST CABLEVIS ?ON OF CALIFORNIA, evidencing the City of Newport Beach's prior consent to these transactions. . BE IT FURTHER RESOLVED, that Resolution No. 86 -22 is hereby repealed. ADOPTED this 14th day of April 1986 s ATTEST: city Clerk 0 e, .. RESOLUTION No, 86 -22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE REORGANIZA- TION OF GROUP W CABLE, INC. PURSUANT TO SECTION 5.44.060 (g) OF THE NEWPORT BEACH MUNICIPAL CODE. WHEREAS, Group W Cable, Inc., now a part of Westing- house Broadcasting and Cable Corporation, plans to'reorganize; and WHEREAS, Section 5.44.060 (g) of the Newport Beach Municipal Code provides that a cable television franchise can- not be sold, transferred or otherwise disposed of, in whole or in part, by sale, merger, consolidation or otherwide, without the prior consent of the City Council, expressed by resolution; and WHEREAS, COMCAST has requested the City Council of the City of Newport 'Beach to consent to the reorganization, as set forth in the attached correspondence dated March 3, 1986, attached hereto and marked Exhibit "A" and incorporated herein as though fully set forth at length; and WHEREAS, the City Council finds and determines that the reorganization into COMCAST CABLE COMMUNICATIONS, INC., a parent 3� company, is in the best interests of the City of Newport Beach. NOW', THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach, that pursuant to Section 5 .144.060 (g) of the Newport Beach Municipal Code, the City Council hereby consents to subject reorganization. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to send a certified copy of this Resolu- tion to COMCAST CABLE COMMUNICATIONS, INC., evidencing the City of Newport Beach's prior consent to the merger. ADOPTED this 24th day of March , 1986 ATTEST: o i City Clerk OESOLUTION No. 86 -22 . . A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE REORGANIZA- TION OF GROUP W CABLE, INC. PURSUANT TO SECTION 5.44.060 (g) OF THE NEWPORT BEACH MUNICIPAL CODE. WHEREAS, Group 'W Cable, Inc., now a part of Westing- house Broadcasting and Cable Corporation, plans to reorganize; and WHEREAS, Section 5.44.060 (g) of the Newport Beach Municipal Code provides that a cable television franchise can- not be sold, transferred or otherwise disposed of, in whole or in part, by sale, merger, consolidation or otherwide, without the prior consent of the City Council, expressed by resolution; and WHEREAS, COMCAST has requested the City Council of the City of Newport Beach to consent to the reorganization, as set forth in the attached correspondence dated March 3, 1986, attached hereto and marked Exhibit "A" and incorporated herein as though fully set forth at length; and WHEREAS, the City Council finds and determines that the reorganization into COMCAST CABLE COMMUNICATIONS, INC., a parent company, is in the best interests of the City of Newport Beach. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach, that pursuant to Section 5.44.060 (g) of the Newport Beach Municipal Code, the City Council hereby consents to subject reorganization. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to send a certified copy of this Resolu- tion to COMCAST CABLE COMMUNICATIONS, INC., evidencing the City of Newport Beach's prior consent to the merger. ADOPTED this ATTEST: City Clerk Mayor of March . 1986 RESOLUTION No. 86 -22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE REORGANIZA- TION OF GROUP W CABLE, INC. PURSUANT TO SECTION 5.44.060 (g) OF THE NEWPORT BEACH MUNICIPAL CODE. WHEREAS, Group W Cable, Inc., now a part of Westing- house Broadcasting and Cable Corporation, plans to reorganize; and WHEREAS, Section 5.44.060 ('g) of the Newport Beach Municipal Code provides that a cable television franchise can- not be sold, transferred or otherwise disposed of, in whole or in part, by sale, merger, consolidation or otherwide, without the prior consent of the City Council, expressed by resolution; and WHEREAS, COMCAST has requested the City Council of the City of Newport Beach to consent to the - reorganization, as set forth in the attached correspondence dated March 3, 1986, attached hereto and marked Exhibit "A" and incorporated herein as though fully set forth at length; and WHEREAS, the City Council finds and determines that the reorganization into COMCAST CABLE COMMUNICATIONS, INC., a parent company, is in the best interests of the City of Newport Beach. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach, that pursuant to Section 5.44.060 (g) of tKe Newport Beach Municipal Code, the City Council hereby consents to subject reorganization. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to send a certified copy of this Resolu- tion to COMCAST CABLE COMMUNICATIONS, INC., evidencing the City of Newport Beach's prior consent to the merger. ADOPTED this ATTEST: i City Clerk ORDINANCE NO. 85 -22 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTION 5.44..035 OF THE NEWPORT BEACH MUNICIPAL CODE DEREGULATING RATES AND CHARGES FOR COWUNITY ANTENNA TELEVISION SECTION 1. The City Council of the City of Newport Beach finds and declares as follows: The City Council of the City grants franchises within the City for the operation of Community Antenna Television (CATV) services. The City Council is enabled by the Terms of the Franchises and by Section 5.44.060 of the Municipal Code to amend the ordinances governing such franchises. The Federal Cable Communications Policy Act of 1984 prohibits any franchising authority from regulating the rates for CATV service after December 29, 1988,. The City Council has determined that the public good shall be .served by the exercise of the police .power to amend the Municipal Code to include sections regarding the Regulation of Rates and Service relating to CATV. SECTION 2. The City Council DOES ORDAIN as follows: Section 5.44 -.035 of the Newport Beac,"unicipal Co e is hereby amended to read as follows: -I - 5.44.03'S�'. REGULATION OF RATES AND SERVICE (a) The ''City Council shall, at all times and from time to time during the term of any franchise granted hereunder, have the power to and shall adopt and enforce and Grantee shall conform to rules and regulations of the Council governing and establishing reasonable rules, regulations and standards of performance pertaining to the system of Grantee. �(b) The rates and charges for those services included under the definition "Non Basic Services" and "Basic Subscriber Services" as defined herein shall not require City Council review and approval. The Grantee shall, however, provide the City with sixty (60) days' prior written notification of any new rates or charges associated with "Non Basic Services" or "Basic Subscriber Services" to be provided within its franchise area. SECTION 3. This Ordinance shall be published ace in the official newspaper of the City, and the same s'hll be effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular mee":ng of the City Council of the City of Newport Beach held on the 2thda of August , 1985, and was adopted on the 26th day of Auust , 1985 by the following vote: ATTEST City Clerk AYES, COUNCIUV MBERS NOES, COU•NC'ILMEMBERS ABSENT COUNCILMEMBERS yor -2- members thereof by other members or officers thereof, voluntarily and without remuneration for making such solicitations', or if the solicitations are in the form of collections or contributions, or if the solicitations are I in the forms of collections or contributions at the regular assemblies of services of any such established person. (Ord. 1 171 § I (part), 1966). , 5.41.230 Religious Solicitation — Houdy Restriction. No person shall' solicit contributions for any religious purpose in any residential area of the city at a time other than between ten a.m. and nine p.m. on any day except Sunday and at any time except between the hours of twelve noon and nine p.m. on Sundays. (Ord. 1171 § I (part), 1966). 5.41.240 Religious Solicitations — Investigation of Affairs of Person Soliciting for Religious Purposes. The City Manager is authorized to investi- gate the affairs of any person soliciting for religious purposes under a certi- ficate issued under Section 5.4 1.2120 and to make public his written findings of any of said persons. Said persons shall make available to the City Manager, or to any representative designated by the City Manager in writing for such specific purpose, all books, records, or other information reasonably neces- sary to enable the City Manager to fully and fairly inform the public of all facts necessary to a full understanding, by the public of the work and methods of operation of such persons: provided that five (5) days before the public release of any findings under this section the City Manage must r.-St serve a copy of said findings upon the person investigated, and at the time of the release of his findings he must release a copy of any written statement said person may file with the City Manager in explanation, denial, or con- firmation of said findings. (Ord. 1 171 § I (part). 1966). N gtNGH Chapter 5.44 COMMUNITY ANTENNA TELEVISION Sections: 5.44.010 5.44.020 5.44.030 5:44.03 5 5.44.040 5.44.050 5.44,060 5.44.070 ,-5.44.071 5.44,072 5.44.073 5.44.080 5.44.090 Definitions. Franchise to Operate. Uses Permitted. Regulation of Rates and Service. Duration of Franchise. Franchise Payment. Limitations of Franchise. Rights Reserved to the City. Maintenance of Services. Subscriber Complaint Procedures. Penalties. Permits, Installation and Service. Location of Grantee's Properties. 120 -1 (Ne%vpoR. Beach 8 -34) 5.44.100 5.44.110 5.44.120 5.44.130 5.44.140 5.44.150 .,/5.44.151 ,5:44.152 5.44.160 5.44,165 5.44.170 5.44.172 5.44.173 5.44,175 5.44. 180 ,5.44.185 5.44.190 Removal or Abandonment of Property of Grantee. Failure to Perform Street Work. Surety Bonds. Protection of City Against Liability. Inspection of Property and Records. Operational Standards. Technological Developments. System Compatibility and Connectability. Miscellaneous Provisions. Adoption of Rules and Regulations by the City Council. Application for Franchise. Application Fee. Effect of Annexations. Effect of Preemption. Franchise Renewal. Locking Devices to Permit Exercise of Parental Discretion. Violations. 5.44.010 Definitions. For the purpose of this Chapter, the following terms, phrases, words and their derivatives shall have the meaning given here- in. 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 exists between these definitions and the definitions as set forth in other ordinances, these definitions will control. (a) CITY. 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) COUNCIL. The term "Council' shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) PERSON. The term "Person" shall mean any individual, firm, partnership, association, corporation, company or organization of any kind. (d) GRANTEE. 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) COMMUNITY ANTENNA TELEVISION SYSTEM. The term "Community Antenna Television System" or "CATV System" shall mean a system employing antennae, microwave, wires, waveguides, 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; (Newport Beach 8.84) 120 -2 i "' (2) transmitting original cablecast programming not received through television broadcast signals; (3) transmitting television pictures, film and video tape pa, =a ., i ❑:. received through broadcast television signals whether or not encoded or 120 -2a (Newport Beach 8 -84) � COMMUNITY ANTENNA TELEVISION 5.44.810 processed to permit boo by only selected (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; (6) transmitting or receiving all other signals whether digital, voice or audio visual. (f) SUBSCRIBERS or USERS. The terms "Subscribers" or "Users" shall mean any purmo(dn«uodty(iou) receiving, for any purpose, any service nf the Grantee's community antenna television system, including, but not limited to, the conventional cable television system service of retransmission 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 transmissions and police, fire and similar public service communications. (g) GROSS ANNUAL RECEIPTS. The term "Gross Annual Receipts" obuD zoouo any and all cozUpe�fis8tipu and other consideration, in any form vvbutsoorcz, and any contributing grant or subsidy received directly nr in- directly byGzuuteuir000: (l) subscribers orusuzsbupu ot for any CATl( system services including television broadcast, satellite, microwave, orFM -radio signals, reception or service received within the City oT transmitted ioany shape or form, from the City, for n/biub local subscribers or users make payment, whether said signals, reception or service is included within the terms "Basic Subscriber Services" or "Non Basic Services" as said terms may be defined in the Municipal Code, uo well as any installation or line extension charges therefor; (2) any other cnooDousubno for utilization of or connection to the property of Grantee used within the City, including the sale, rental or provi- sion ofuoyugoipeouut,purtouzudd~onotohouoodi000uuectinoo/itbtbo CATl/system; (3) notwithstanding the above, Gross Annual Receipts shall not include any taxes nn services furnished hy the Grantee and imposed directly Vuany subscribers nr users by any City, State nr other governmental unit and collected by the Grantee for such governmental unit. (h) BASIC SUBSCRIBER SERVICES. The term "Basic Subscriber Sorviues" ubu]l zuouo and include the delivery, by the Gruotoo^ tn all sub- scribers p/itbiutbo confines uf its franchise area of: (l) all signals ufuvo/-(bu`uiz`toleridno broadcast, pursuant LnFCC license, or all those over-the-air-signals which are received and transmitted in the community without the aid ofu cable television system 0zsimilar apparatus: (2) all satellite signals received and transmitted io the community hy the Grantee uoof the effective date of this Soctioo' ' (3) all 'satellite signals received and transmitted inthe community after the effective dare nf this ^Section, with the exception nf those included under (wewpon Beach 2-82) � Section 5.44.010(i) of "Non Basic Services" as defined herein; (4) all public, local education, local government, local origination and ` public access channels and signals; (S) other channels, signals, (including microwave) programs and. ser- vices, provided by the Grantee as part of the Basic Subscriber Service package. (i) NON BASIC SERVICES. The term "Non Basic Services" shall mean and include channels, signals, programs and services not provided. as part of the "Basic Subscriber Services" package, as defined herein above. These shall include: (1) pay or subscription television as defined by the FCC and radio services supplied by the Grantee; (2) satellite or microwave signals which are offered to subscribers as optional-tiered services for a separate fee or charge and which are inde- pendent of those satellite or microwave signals provided as part of the ".Basic Subscriber Services" package as defined herein; (3) advertising or commercial messages; (4) equipment and appurtenances representing technological develop- ments and enhancements in the field which the Grantee may, from time to time, make available to subscribers, provided that subscribers have the option of not acquiring said additional equipment or appurtenances and fur - ther, provided that the exercise of the option not to purchase shall, in no way, affect a subscriber's existing service or preclude him from receiving "Basic Subscriber Services" as defined herein. (j) FRANCHISE AREA. 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 enlarge- ments thereof and additions thereto. (Ord. 1890' § 1 (part), 1981: Ord. 1178 § 1, 1966: Ord, 1153 § 6950, 1966). 5.44.020 Franchise to Operate. A franchise to construct, operate 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 S "a existing franchise or not, offering to furnish and provide such system pursu- ant to the terms and provisions of this chapter. Such a franchise shall not be exclusive, 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. (Ord. 1 153 § 6951, 1966). 5.44.030 Uses Permitted. Any franchise granted pursuant to the provi- sions 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, (Newport Beach: 2 -82) 102-4 COMMUNITY ANTENNA TELEVISION 5.44.035 " 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 appur- tenant 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, regula- tions, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable it to exercise its rights and perform its obliga- tions under the franchise, and to insure an uninterrupted service 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 wives and cables of grantee; all trimming to be done under the supervision and direction of the City and at the expense of grantee. (Ord. 1 178 § 2, 1966: Ord. 1153 § 6952, 1966). 5.44.035 Regulation of Rates and Service. (a) The City Council shall, at all times and from time -to -time during the term of any franchise granted hereunder, have the power to and shall adopt and enforce and Grantee shall conform to rules and regulations of the Council governing and establishing reasonable rules, regulations and standards of performance pertaining to the system of Grantee. r. — (b) The City Council shall establish or approve all subscriber, installa- tion and other incidental rates and charges for "Basic Subscriber Services" as defined herein, and no such rates or charges shall be changed, at any time except by authority of the Council and upon written request of the Grantee; provided, that prior to authorizing the change of any rates or charges of Grantee to Subscribers, at any time after the granting of such franchise, the r Council shall first pass its resolution of intention to do so, describing and stating any rates or charges to be changed, the reasons of the Council there- for, fixing a day; hour and place certain when and where any persons having any inerest therein may appear before the 'Council and be heard and directing the City Clerk to publish said resolution at least once, within fifteen (IS) days of the passage thereof. The City Clerk shall cause such resolution to be published in a newspaper of general circulation within the City, and the same shall be published and a copy thereof shall be mailed to any Grantee hereunder at least ten (10) days prior to the date specified for hearing thereon. At the time set for such hearing, or at any adjournment thereof, the Council shall proceed to hear and pass on all presentations 120 -5 (Newport Beach 2.82) 5:44:040- 5.44.050 BUSINESS LICENSES AND REGULATIONS made before and the decision of the Council thereon shall be final and conclusive. If thhe.Council shall find that the changing of any rates or ;' . of Grantee to Subscribers will not be detrimental or injurious to the best interests and welfare of the subscribers and of the City, then the Council' ` may, by resolution, authorize the change of any rates or charges of Grantee to Subscribers as shall be deemed reasonable by the Council in the premises; and such resolution shall thereupon become and shall be a part of any fran- chise granted hereunder and, affected thereby.' . (c) The rates and charges for those services included under the- defini- tion "Non Basic Services" as defined herein shall not require City Council review and approval. The Grantee shall, however, provide the City with 60 -day prior written notification of any new rates or charges associated. with Non Basic Services -to be provided within its franchise area. (Ord. 1890 § 1 (part),'1981,: Grid. 1178 § 3, 1966). 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, after thirty (30) days' notice of proposed termination and public hearing, that (a) the grantee has failed to comply with any provision of this Chapter, or has, by act or omission, violated any 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. (Ord. 1364 § 1; 1970: Ord. 1171 § 4, 1966: Ord. 1153 § 6953, 1966). 5.44.050 Franchise Payment. (a) ACCEPTANCE FEE. The grantee of any franchise 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 annually to the City during the life of such franchise a fixed percentage of the gross receipts of the grantee derived from subscribers 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. The grantee shall file with the City, within thirty (30) days after the expiration of any calendar year during which such franchise is 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 calendar year. It shall, be the duty of grantee to pay to the City, within ten (10) days after the time for filing such (Newport Beach 2-82) 12.0 -6 . , A.r. - COMMUNITY ANTENNA TELEVISION 5.44.060 i { statement, any unpaid balance for the calendar year covered by such I statement. In the event that the above payment is not received by the City within the specked time, grantee shall pay to the City a penalty of two percent (2 17o) 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 ($1500) per month, grantee shall pay to the City a minimum amount of Twenty -five Dollars ($25) per month. The 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 or additional sums payable under this chapter or for the performance of any obligation thereunder. In the event of any holding over after expiration or other termination of said franchise without the consent of the City, the grantee shall pay to the City damages of not less than twenty percent (20 17b) of its gross profits during said period. (Ord. 1178 § 5, 1966: Ord. 1153' § 6954,1.966). 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 specifications of the City heretofore or 'hereafter enacted or established, 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 with .i 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, 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 1'20-6a (Newport Beach 2-82) b. 5.44.060 BUSINESS LICENSES AND REGULATIONS vacation, freeway and street construction, change or estihls's : - < .c +' grade, installation of sewers, drains, water pipes, power lines, en , ne S, unu tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or any other 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 15.44. 100 hereof. t COMMUNITY ANTENNA TELEVISION 5.44.060 (f) Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments, alterations or installations, the grantee shall do so at such time as will cause the least amount of incon- venience to its customers, and unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to its cus- tomers. (g) Any such franchise shall be a privilege to be held in trust by the original grantee. It cannot 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 grantee shall file with the Council within thirty (30) days after any sale, transfer, assignment, or lease of the franchise or any part thereof, or any of the riglits or privileges granted thereby, written evidence of the transaction certified to by the grantee or its duly authorized officers. The proposed assignee must show financial responsi- bility 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. (h) 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. (i) Any right or power in, or duty impressed upon any officer, em- ployee, 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: 0) The grantee shall have no recourse whatsoever against the City for any loss, cost, expense or damage arising out of any provisions or require- ments of this chapter or its enforcement. (k) Any such franchise granted shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the City, utility company, or from others maintaining poles in streets. (1) Any franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, pos- sessed, controlled, or exercisable by grantee, or by any successor to any interest of grantee, of 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 granted any franchise hereunder. (Ord. 1153 § 6955; April 11, 1966). 12) 0--7 (Newport Beach 8.84) 1 r 9 Ci `i t COMMUNITY ANTENNA TELEVISION 5.44.060 (f) Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments, alterations or installations, the grantee shall do so at such time as will cause the least amount of incon- venience to its customers, and unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to its cus- tomers. (g) Any such franchise shall be a privilege to be held in trust by the original grantee. It cannot 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 grantee shall file with the Council within thirty (30) days after any sale, transfer, assignment, or lease of the franchise or any part thereof, or any of the riglits or privileges granted thereby, written evidence of the transaction certified to by the grantee or its duly authorized officers. The proposed assignee must show financial responsi- bility 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. (h) 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. (i) Any right or power in, or duty impressed upon any officer, em- ployee, 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: 0) The grantee shall have no recourse whatsoever against the City for any loss, cost, expense or damage arising out of any provisions or require- ments of this chapter or its enforcement. (k) Any such franchise granted shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the City, utility company, or from others maintaining poles in streets. (1) Any franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, pos- sessed, controlled, or exercisable by grantee, or by any successor to any interest of grantee, of 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 granted any franchise hereunder. (Ord. 1153 § 6955; April 11, 1966). 12) 0--7 (Newport Beach 8.84) 5.44.070 - 5.44.071 BUSINESS LICENSES AND REGULATIONS' 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 any 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 con- venient in the exercise of its jurisdiction under this chapter and may deter- mine any question of fact which may arise during the existence of any franchise issued under the provisions of this chapter. 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. (Ord. 1153 § 6956: April 11, 1966). 5.44.071 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 the Grantee, comply with the following general regulations: (a) Grantee shall schedule planned service interruptions during periods of minimum use of the system and shall notify subscribers of planned service interruptions via announcements transmitted on the public access /local origination 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 the tollfree telephone number or numbers which are provided within the City, pursuant to this Chapter, in good working order and shall provide telephone recorded announcement (Newport Beach 8 -84) 120-8 Wk COMMUNITY ANTENNA TELEVISION 5.44.072 capability to announce system -wide service disruptions during the times when such disruptions occur. (c) Grantee, shall limit system malfunctions to no more than twenty - four (24) consecutive hours duration from the time the-malfunction is discovered or a subscriber complaint is received pursuant to Section 5.44- .072 of this Chapter. (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 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. (Ord. 84 -5 § 2 (part), 1984). 5.44.072 Subscriber complaint procedures. (a) Grantee shall insure that the tollfree 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 per 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 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 three (3) years from the date of the complaint and is to be available for inspection during regular business hours by the City Manager or his designee. (d) if not satisfied with the Grantee's response, a subscriber may file a written complaint with the City. (e) If a subscriber files a complaint with the City regarding a service problem 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 120 -8a (Newport Beach 8-84) levy a penalty as provided for in Section 5.44.073 of this Chapter. (Ord- 84-5 § 2 (part), 1984). 5.44.073 Penalties; The Grantee shall pay a penalty of up to five hun- dred dollars (S500.00) for failure to comply with any section of this , Chapter. The City Council shall determine the extent of the penalty within thirty (30) days of receiving a written report from the City Manager. The Grantee shall immediately be notified of the Council's penalty determina- tion. The Grantee may formally object to the penalty by filing a written notice of objection with the City within thirty (30) days following notifica- tion by the City of the fine to be levied. If the Grantee so objects; the Grantee and the City shall conduct arbitration in accordance with the rules of the American Arbitration Association. Said arbitration shall be scheduled as soon as possible following receipt of the Grantee's objection. The decision of the arbitrator shall be final and binding. (Ord. 84 -5 § ? (part), 1984). 5.44.080 Permits, stallation and Service. (a) Within thirty (30) days after acceptance of any franchise the,grantee shall proceed with due dili- gence to obtain all necessary permits and authorizations which are required in the conduct of its business; including but not limited to any utility joint use attachment agreements, in I rarowave carrier licenses, and any other permits, licenses, and authorizatiohs,,to be granted by duly constituted regulatory agencies having jurisdiction o er the operation of CATV systems. or their associated microwave transmission facilities (Newport Beach 8.84) 120 -8b COMMUNITY ANTENNA, TELEVISION 5.44.090 - 5.44:100 (b) Within ninety ('90) days after obtaining all necessary permits; licenses and authorizations, grantee shall commence construction and in- stallation of the CATV system. (c) Within one hundred eighty (180) days after the commencement of construction and installation of the system, grantee shall proceed to under service to subscribers, and the completion or the construction and installation shall be pursued with reasonably diligence to the cnd that service shall be made avililublc to all potential :subscribers throughout the untirc franchise aura within such time and upon such conditions as shall be determined by the City Council. (d) Failure to du any of the foregoing shall be grounds for termina- tion of the franchise. (c) The City 'Manager may extend the time for obtaining necessary permits and authorizal ions and for beginning construction and installation for additional periods in the event the grantee, acting in good faith, expe- riences delays by reason of circumstances beyond his control. (Ord. 1178 s 6; September 12, 1966: prior Ord. 1153 ; 6957; April 11, 1966). 5.44.090 Location of Grantee's Properties. (a) Any poles, wires, cable lines, conduits, or other properties of the grantee to be constructed or in- stalled in streets, alleys or other public places shall be so constructed or installed only at such locations and in such manner as shall be approved by the Director of Public Works of the City acting in the vxcrcisc of his reasonable discretion. (h) The grantee shall not. install tic creel. any facili(ics cnr apparuus on public property or rights -of -way within Ihr (✓.city,,c-,crpt thirst, installed rn' cr•tx:ted upon public utility racilities now t :xisling. without. written ap- proval of the 1)i rector of Public Works of the City. (c) In thosc aicas and porlioos of Ilic City whew both the transmis- sion and dih(ribulion I•acilities of ihv public n(ilily providing telephone service and those of Ihr 1111M..y I)MViding vlretrii' st-rvicv vac underground or hereafter pray be plavvd undi- rgrounit.. then the granter shall likewise constrilet, oprraty. and arntintlin all of itx transmission and distribution facililies undert'n ouud. Amplifiers in grantee's transmission and distribu- tion lines may be in appropriaLc housings upon the sm•face or the ground as approval by Ihr Dirrclor of Public Winks of the City. (Ord. 1153 6958; April 11, 1966). 5. 14.100 Removal or Ab ndomm-nY of Prolwfly of Granter. (a) In the event that the use of any part of the CATV system is discontinued for any reason for a continuous pvrtod or three (3) months. or in the event siich system or property has bovn installed in any stares., alley or public place without complyinn with the rcriuirvnleuts of its franchise or ordi- nance. or the ft:uuchise has bran t(-rrninowd. cancelled or has expired, the grantee shalt promptly, upon being given thirty (30) flays' notice, remove 1'20 -9. /[Stwpnrp lmnch 11715/66) 5.44. 110 --- 5.44.120 BUSINESS LICENSES AND REGULATIONS 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 L 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. The City Manager may extend such time not to exceed an additional thirty (30) days. (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. (Ord. 1153 6959: April 11, 1966). 5.44.110 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 satis- faction 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. (Ord: 1153 S 6960; April 11, 1966). 5.44.120 Surety Rands. (a) BOND FOR PROTECTION OF CITY. The grantee shall, concurrently with the filing of an accepance of award T%-L of the franchise granted under this chapter, file with thClerk 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 Attorney, in the amount of one 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 dam- ages or loss suffered by the City as a result thereof. including the full amount of any compensation, indemnification, or cost of removal or aban- doumant 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 or the bond. said condition to be a continuing obliga- (KCW N,rt R.-ach 11/15166) 120 -10 COMMUNITY ANTENNA TELEVISION 5.44.130 tion for the duration of such franchise or any renewal thereof, and there- after 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 pro- vide 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 pro- vision of any agreement or undertaking made between grantee and any 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 attorney's 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 sub- scriber which arise out of or pertain to any such agreement or under- taking. (Ord. 1178 § 7; September 12, 1966: prior Ord. 1153 § 6961; April 11,1966). 5.44.130 Prote(ttion of City Against Liability. (a) INDEMNIFICA- TION. 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 or this chapter, including claims, de- mands, actions, suits. liabilities and :judgments based upon any infringe- ment or violation or alleged violation of any copyright; and Grantee shall reimburse the City for any costs and expenses incurred by City in de- fending against any such claim or demand or action, including any attor- ney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, travel and living expense; and Grantee shall upon de- mand of the City appear in and defend any and all suits, actions or other 120 -11 (Newport Beach 1/15/67) 5.44.140 BUSINESS LICENSES AND REGULATIONS legal proceedings whether judicial, quasi - judicial, administrative or other- wise, 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 fran- chise, 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 written notice of its intentions to do so. (b) COMPREHENSIVE LIABILITY INSURANCE. Upon accept- ance of such franchise the Grantee shall file with the City Clerk and shall thereafter during the entire term or 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 pri- mary 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 a form approved by the City Attorney, with minimum combined single limits of liability coverage in the amount of one million dollars ($1000,- 000). The policy or policies shall name the City, its officers, boards, commissions, agents and employees, as additional insured and shall con- tain 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 policies of insurance as required in this subsection has been delivered to the City Clerk. (Ord. 1193 1; December 27, 1966: prior Ord. 1153'z 6962; April 11,1966). 5.44.140 Inspection of Property and Records. (a), At all reasonable times, the grantee shall permit any duly authorized representative of the City to examine all property of the grantee, together with any appurte- nant property of the grantee situated within or without the City, and to examine and transcribe any and all maps and other records kept or main- tained 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 deter- mine that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such ex- amination shall be paid bo the grantee, 120 -12 (N#wporn Rrnrh 1/16167) COMMUNITY ANTENNA TELEVISION 5.44.150 - 5.44.151 (b) The grantee shall prepare and furnish to the'tity Manager and /or the Director of Finance at the 'times and in the form prescribed by either of said office such reports with respect to its operations, affairs, trans- actions or prop y, as may be reasonably necessary or appropriate to the performance of an} ,pf the rights, functions`or duties of the City or any of its officers in connect en with the franchise. (c) The grantee shall, at all times; make and keep in the City full and complete plans and records showing the exact location of all CATV system equipment installed or in use"in streets, alleys and public places in the City. The grantee shall file with the -D rector of Public Works, on or before the last day in March of each year,!a current set of maps drawn to scale showing all CATV system equipment installed a" d,in place in streets, alleys and other public places of the Gity during the previous year. (Ord, 1153 § 6963, 1966). 5.44.150 Operational Standards, The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the eff t that subscribers shall receive the highest possible service. The following minimum standards shall be required: (a) The system shall be installed using all band equipment capable of passing the entire VHF and FM spectrum, and it shall have the further capa- bility of converting UHF for distribution to subscribers on the VHF band. (b) The system, as installed, shall be capable of passing standard color TV signals without the introduction of material degradation on color fidelity and intelligence. (c) The system and all equipment shall be designed and rated for 24 -hour per day continuous operation. (d) The system shall provide a signal level of 2000 microvolts at the input terminals of each TV receiver. (e) The signal to noise ratio shall be not less than 46 decibels. (f) Hum modulation of the picture signal shall be less than five per- 64 cent (5 %). (g) The system shall use components having a VSWR of 1.4 or less. (Ord. 1198 § 2, 1966: Ord. 1 178 § 8, 1966: Ord. 1153 § 6950, 1966). 5.44.151 Technological Developmehts. (a) It is the desire of the City that all CATV systems franchised to operate within the City shall main- tain, 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 deter - mined 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 sys- tem in accordance with the highest and best accepted standards of the indus- try. Such improvements and modifications shall include, but not necessarily be limited to: 120 -13 (Newport Beach 2 -82) 5.44.152 BUSINESS LICENSES AND REGULATIONS (1) continued availability and enhancement of national or international transmission capabilities via communications satellites; (2) enhancement and expansion of system channat programming; (3) improvement of public access and local programming capabilities; 4C'4 __ (4) maintenance and improvement of system's physical plant in accor- dance 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 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 modifica- tions the following factors shall be considered: (1) whether there exists a reasonable subscriber demand for the pro- posed improvements or modifications; (2) whether the technology associated with the proposed improve- ments 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 modifica- tions 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 improve- ments or modifications deemed desirable by the City but Grantee shall not be required to incorporate technological developments into the CATV sys- tem which do not meet the provisions of Section 5.44.15l(c) above. (e) The Grantee shall provide the City with written notification of any system improvements or modifications proposed for implementation within its respective franchise area: (f) Any controversy between the parties hereto involving the construc- tion or application of any of the terms, covenants, or conditions of this Section, shall, on written request of one party served on the other, be sub- mitted to arbitration, and such arbitration shall comply with and be governed by the provisions of the California Arbitration Act, Sections 1280 through 1294.2 of the California Code of Civil Procedure. (Ord. 1890 § 2 (part), 1981). 5.44152 System Compatibility and Connectibility. (a) It is the desire of the City that all CATV systems franchised to operate within the City shall be compatible and interconnectible with one another and with systems in _. adjacent cities.. (b) When it is ;financially and technically feasible, within the area (Newport Beach 2.82) 120-14 COMMUNITY ANTENNA TELEVISION 5.44160 - 5.44.165 served, the Grantee shall negotiate the construction, operation and modifica- tion of its system to interconnect same with all other systems within and adjacent to the City for the purpose of sharing locally originated public and educational programming. (Ord. 1840 § 2 (part), 1981). 5.44.160 Miscellaneous Provisions. (a) All matters herein provided to be filed with the City shall be filed with the City Clerk. (b) The rate schedule for any connection fee or monthly service' charge, or charge thereto, to subscribers must have written approval of the City Council. (c) The grantee must pay to the City a sum of money sufficient to reimburse it for expenses incurred by it in publishing legal notice and ordi- nances in connection with the granting of a franchise pursuant to the provi- sions of this chapter; such payment to be made within thirty (30) days after the City shall furnish such grantee with a written statement of such expense. (d) The grantee shall maintain a toll free telephone number within the City of Newport Beach so that CATV maintenance service shall be promptly available to subscribers. (e) No person, firm or corporation in the existing service 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 connection fee or the applicable monthly service charge. (f) The City Council may, upon finding that extraordinary circum- stances applying to the land, buildings or CATV system do exist, waive any or all of the requirements of this chapter. (g) Any CATV system existing in the City prior to the adoption of this chapter shall, within sixty (60) days after the effective date of this chapter make application for a franchise. Said system may continue its existing operations, but may not enlarge or expand same without first _ secur - ing a franchise from the City. (h) 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. Such service shall consist of a drop connection to the exterior of the building or property involved and a con- nection to the interior of the building or property to a television set if de- sired. (Ord. 1178 § 9, 1966: Ord. 1153 § 6950, 1960). 5.44.165 Adoption of Rules and Regulations by the City Council. (a) POWER TO ADOPT RULES AND REGULATIONS. The City Council is authorized to adopt rules and regulations consistent with the provisions of this chapter 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 the provisions of this chapter. (b) PROCEDURE FOR ADOPTING RULES AND REGULATIONS. The City Council may adopt rules or regulations or amend, modify, delete 120-15 (Newport Beach 2.82). -4 r: _. (h) Prior to the granting of a franchise 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 grant- ing 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 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 pro- tests 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. (i) Any franchise issued pursuant to this chapter shall include the following conditions: The CATV system franchise herein, shall be used and operated solely and exclusively for the purpose expressly authorized by ordinance of the City of Newport Beach and no other purpose whatsoever. The inclusion of the foregoing statement in any such franchise shall not be deemed to limit the authority of the City to include any other reason- able condition, limitation or restriction which it may deem necessary to impose in connection with such franchise pursuant to the authority conferred by this chapter. (Ord. 1 153 § 6966, 1966). 5.44.172 Application Fee. Each application 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 process- ing such application. (Ord. 1 178 § 11, 1966). 5.44.173 Effect of Annexations. (a) In the event any new territory shall become annexed to the City, the City Council shall determine which grantee or 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 120 -17 (Newport Beach 2.52) 5.44.175- 5.44.185 BUSINESS LICENSES AND REGULATIONS 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 sub - sequently adopted, shall be applicable to and binding upon said grantee. In addition,, the grantee shall be obligated to pay annually to the City three percent (37o) of the gross receipts derived from its operations within the annexed territory. (Ord. 1890 § 1 (part), 1981; Ord. 1198 § 3, 1966: Ord. 1118 § 12, 1966). 5.44.175 . Effect of Preemption. In the event the Federal Communica- tions Commission or the Public Utilities Commission of the State of Califor- nia or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any franchise hereunder, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City, the jurisdiction of the City shall, to the extent so preempted or precluded, cease and no longer exist; provided, however, that the preemption or preclusion of the exercise by the City of any of its police power shall not diminish, impair, alter, or affect any con- tractual benefit to the City nor any contractual obligation of the grantee under any franchise issued hereunder; and in this respect, any and all mini- mum standards governing the operation of grantee and any and all maxi- mum rates, ratios, and charges specified herein or in any franchise issued hereunder, existing now and at any time in the future, including such time as any paramount jurisdiction shall preempt or preclude that of the City, and any and all rights, powers, privileges, and authorities of the City, to deter- mine, establish, or fix any of the same, are each and all hereby declared by the City and by any grantee accepting any franchise hereunder to be con- tractual in nature and to be for the benefit of the City and all subscribers situated therein, and the agreement of grantee to accept and conform to such standards, rates, ratios, and charges is hereby ddcared by the City and by any grantee accepting any franchise hereunder to e of the most material and essential consideration for the granting of such franchise, in the absence of which, in whole or in part, the City would not grant such franchise. (Ord. 1890 § 1 (part), 1981; Ord. 1178 § 13, 1966). 5.44.180 Franchise Renewal. Any franchise granted under this chapter is renewable at the application of the grantee, its lawful successors or assignee for such period of time as the Council and the applicant may agree upon by negotiation. (Ord. 1 153 § 6697, 1966). 5.44,185 Locking Devices to Permit Exercise of Parental Discretion. (a) Grantee shall make available to its subscribers, upon request and for a reasonable charge, locking devices to permit parental control over program- ming. (Ord. 1890 § 2 (part), 1981.) (Newport Beach 2 -82) 120 -18 MOTION PICTURE, T.V. PRODUCTIONS 5.44.190 5.44.190 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 Sir, gnals, radio signals, pictures, programs or sound. (b) It shall be unlawful for any person, without the consent of the owner, to wilfully 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 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. (Ord. 1 153 § 6968, 1966). 120 -18a (Newport Beach 2 -82) Chapter 5.46 REGULATION OF MOTION PICTURE AND TELEVISION PRODUCTIONS ON PUBLIC PROPERTY Sections: 5.46.010 Permit Required. 5.46.020 Exceptions. 5.46.030 Application for Permit. 5.46.040 Issuance of Permit. 5.46.050 Notice of Approval or Disapproval. 5.46.060 Appeal. 5.46.070 Cost of Additional City Services. 5.46.080 Bond and Insurance. 120 -18a (Newport Beach 2 -82) 5,46.010-5.46.030 BUSINESS LICENSES AND REGULATIONS 5.46.010 Permit Required. No person shall We an . y public pr , op— facility for the purpose of taking motion pictures or television pictures without first applying for and receiving a permit therefor from the City Manager or his authorized representative. (Ord. 1262 § I (part), 1968). a 5.46.020 - Exceptions. The provisions of this chapter shall not apply to amateur photographers or, to reporters, photographers or cameramen in the employ of a newspaper, news service, radio broadcasting station, television station or similar entity engaged in on-the-spot broadcasting, reporting or photographing of news concerning those, persons, scenes or occurrences which are in the news or of a general public interest. (Ord. 1262 § 1 (part), 1968). 5.46.030 Application for Permi t. -Any person desiring to use any public property or facility for the purpose of taking motion pictures or television pictures shall, not less than fourteen (14) days before the date on which such person desires to conduct such activity, file an application for a permit with the City Manager, on a form furnished by the City. The City Manager may in his discretion waive the requirement that applications be filed fourteen (14) days prior to the date on which the activity is to be conducted. The application shall be verified and shall set forth the following information: (a) The name, address and telephone number of the person wishing to conduct such activity. I (b) The name, address and telephone number of the person who will be in charge of the activity and be responsible for its conduct. (c) The date or dates and hours when such activity is to be conducted. (d) The approximate time when such activity will begin and end. (e) The location or locations within the City where such activity will take place. (f) The approximate number of persons who will engage in such activity. (g) A list of major equipment to be used, including but not limited to trucks, buses, limousines and cameras. (h) A general statement of the character or nature of the proposed activity. Said application shall be accompanied by an application fee as established by Resolution of the City Council. Applicants who maintain a permanent place of business in the City shall not be required to pay more than the application fee as established by Resolution of the City Council during the period they continue to maintain said place of business, but they shall be required to file an application for each separate filming activity. If said permit is approved, it shall not be necessary for the permittee to obtain a City business license in order to carry on the activities authorized by said permit, unless such permittee maintains a permanent place of business within the City, The permittee shall pay to the City a fee as established by I RESOLUTION NO.. /00/ A•RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT 'BEACH CONSENTING TO THE MERGER OF TELEPROMPTER CORPORATION AND A SUBSIDIARY OF WESTINGHOUSE BROADCASTING'PURSUANT TO SECTION 5.44.060(g) NEWPORT BEACH MUNICIPAL CODE WHEREAS, Westinghouse Broadcasting Company, Inc., a subsidiary of Westinghouse Electric Corporation, plans to acquire control of Teleprompter Corporation by merger; and WHEREAS, Section 5.44.060(g) of the Newport Beach Municipal Code provides that a cable television franchisee cannot be sold, transferred or otherwise disposed of in whole or in part, by sale, merger, consolidation or otherwise, without the prior consent of the City Council expressed by resolution; and WHEREAS, Teleprompter Corporation has requested the City Council to consent to the merger of Teleprompter Corporation with Westinghouse Broadcasting Company, Inc.; and WHEREAS, the City Council finds and determines that the merger of Teleprompter Corporation with Westinghouse Broadcasting Company, Inc., a subsidiary of Westinghouse Electric Corporation, is in the best interests of the'.City; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that pursuant to Section 5.44.060(g) of the Newport Beach Municipal Code, the Council hereby consents to the merger of Teleprompter Corporation with Westinghouse Broadcasting Company, Inc. 1 BE IT FURTHER RESOLVED that the City Clerk.is hereby authorized and directed to to send a certified copy of this Resolution to Teleprompter Corporation evidencing the City's prior consent to the merger. ADOPTED this day of Mayor ATTEST: City Clerk 041381 HRC /pr RESOLUTION NO. ^'* A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO HOLD A PUBLIC HEARING TO CONSIDER A REQUEST BY COMMUNITY CABLEVISION COMPANY FOR A RATE INCREASE IN THE FEES AND CHARGES FOR CABLE ANTENNA TELEVISION SERVICE WHEREAS, on October 24, 1978 the City Council of the City of Newport Beach adopted its Resolution No. 9450 establishing a rate schedule which Community Cablevision Company could charge its subscribers within its service area within the City of Newport Beach; and WHEREAS, Community Cablevision Company has submitted a request for a rate incresse in the monthly cable antenna television service fee and other charges, which are set forth in attachment "A "; and WHEREAS, Section 5.44.035 of the Newport Beach Municipal Code provides that prior to authorizing the change of any rates or charges by the holder of a Community Antenna Television Franchise, the City Council shall first adopt a Resolution of Intention to do so, and fix a time for a public hearing to consider said proposed change, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that a public hearing to consider a request by Community Cablevision Company for a rate increase in the monthly cable antenna television service fee and other charges as set forth in attachment "A" will be held on the 23rd day of Pdarch, 1981, at the hour of 7:3.0 p.m., in the Council Chambers located at City I1al.l, 3300 Newport Boulevard, Newport Beach, California. BE IT FURTHER RESOLVED the City ,Clerk is hereby directed and authorized to publish this Resolution of Intention at least once within fifteen (15) days following its adoption and mail a copy of said Resolution to each holder of a Community Antenna Television Franchise within the City of Newport Beach. ADOPTED this 1,� day of2'l. ✓�✓ , 1981. Mayor ATTEST: C 'tyy Clerk CERTWC A8 ATRUE AND CORRECT COPY Cid CLM OF THE C1.Y OF WWBORT BEACH PATE pr 030581 nstallation $10.00 0 0 EXISTING 12- CITANNEL SERVICE Monthly Monthly (Association) $10.00 $6.70 I Additional Outlets $2.00 The 12 -- channel rate structure currently in effect will not change and the subscribers to this service will not be forced into the new 26- channel offering so long as they are subscribers prior to May 1, 1981 and-do not change their residence. PROPOSED 26- CHANNEL SERVICE, RATE STRUCTURE Yearly Equip. Montly Additional Installation Charge Monthly (Association) Outlets $34.95 $25.00 $10.95 Not $5.00 Available The 26- channel rate structure is to become effective on May 1, 1981. ATTACHMENT "A" RESOLUTION NO. 82 -51 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE REORGANIZA- TION OF TELEPROMPTER CORPORATION PURSUANT TO SECTION. 5.44.060 (g) OF THE NEWPORT BEACH MUNICIPAL CODE WHEREAS, Teleprompter Corporation, now a part of Westinghouse Broadcasting Corporation, plans to reorganize; and WHEREAS; Section 5.44.060 (g) of the Newport Beach Municipal Code provides that a cable television franchisee cannot be sold, transferred or otherwise disposed of, in whole or in part, by sale, merger, consolidation or otherwise, without the prior consent of the City Council, expressed by resolution; and WHEREAS, Teleprompter Corporation has requested the City Council of the City of Newport Beach to consent to the reorganization, as set forth in the attached correspondence dated March 12, 1982, attached hereto and marked Exhibit "A" and incorporated herein as though fully set forth at length; and WHEREAS, the City Council finds and determines that the reorganization into Group Westinghouse Cable, Inc., a parent company, is in the best interests of the City of Newport Beach. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach, that pursuant to Section 5.44.060 (g) of the Newport Beach Municipal Code, the City Council hereby consents to subject reorganization. BE IT FURTHER RESOLVED - that the City Clerk is hereby authorized and directed to send a certified 'copy of this Resolu- tion to Teleprompter Corporation, evidencing the City of Newport Beach's prior consent to the merger. ADOPTED this 12th day of April ,. 1982. ljet, it. :t gt-2n_ L i City Clerk ep Mayor CH2TIFpTRUE „4__N000 COPY �TY// CifY CLERK OF THE CITY OF NEWPORT RGCN DATEr_ Please retain this copy for Y' files. ...: J RESOLUTION NO. J 60 1 14 1 1 ',, t . :A RESOLUTION OF THE CITY COUNC_'', OF NEWPORT BEACH AMENDING. RESOLUTION N0: 8614 APPROVING NEW COMPLETION SCHEDULES FOR TELE- PROMPTER CORPORATION AND DECLARING THE INTENT OF THE CITY COUNCIL TO GRANT NO FURTHER TIMES EXTENSIONS OF COMPLETION SCHEDULES WHEREAS, Telepromter Corporation was granted cable television franchise in the City of Newport Beach by Resolution No. 7379 adopted by the City Council of the City of Newport Beach on March 8, 1971; and WHEREAS, a schedule of construction and installation of Teleprompter cable facilities within the City of Newport Beach was .adopted pursuant to Resolution No. 8614 on October 28, 1975; and WHEREAS, Teleprompter by letter dated June 27, 1979, has requested a modification of the schedules for installation of facilities as set forth in said Resolution, No. 8614; and WHEREAS, the City Council agrees that,after review of the request of Teleprompter, the request is reasonable under the circumstances; and WHEREAS, the City Council has determined that it intends to grant no future time extensions to Teleprompter to install facilities pursuant to the cable television. franchise,' NOW; THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach as follows: 1. The schedules for completion of construction and installation of the complete system of Teleprompter within the City of Newport Beach, as originally set forth by Resolution No, 8614, is hereby amended and the construction and installa- tion of the remainder of the system of Teleprompter shall be completed as follows: r i (c) Balboa Island (d) Lido Isle- (e) Bay :Isle. &Linda Isle (f) Eastbluff and Bluffs COKPLETION DATE February 28'., 1980 February 28, 1980 December 31, 1980 December 31, 1981 2. The man attached to Resolution No. 8614 which delineated said areas is incorporated herein by this reference. 3. Teleprompter agrees to abide by the schedules of completion of facilities .established herein and hereby acknowledges its consent thereto by signing the original of this resolution which is on-file with the City Clerk of the City of Newport" Beach. 4,. Teleprompter further agrees to submit to the City Council an annual status and progress report of construction and installation of the system, consistent with Resolution No. 8614. The next report due from Teleprompter to the City Council will be on December 1, 1979. .. BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach finds that no more time extensions are appropriate or are warranted to Teleprompter, . and further declares that if said schedules are not met by Teleprompter, the City Council may initiate hearings to terminate the franchise of Teleprompter within the City of Newport Beach. ADOPTED this /Q /% day of 1979 ATTEST: City Clerk � Teleprompter hereby grants its consent to the rules and regulations for the completion and installation of the remainder of the Teleprompter system in the City of Newport Beach as established by this resolution. �J Auth .ire re3 ion of Telepronte�r Corporation 6.0 RESOLUTION NO. 7303 A RESOLUTION OF THE CITY COUNCIL OF THE 4! OF NEWPORT BEACH APPROVING AN INCREASE IN TP$' RATE SCHEDULE. FOR CABLE ANTENNA, TELEVISION SERVICE TO INCLUDE CUSTOM. INSTALLATIONS 1 1 WHEREAS, on April 22,. 1968, the City Council of the City of Newport Beach adopted Resolution No. 6760 which established the rates which Newport Beach Community Cablevision, Inc.., shall . charge its subscribers; and WHEREAS, by Resolution No. 7296; adopted October 12, 1970, the City Council declared its intention to hold a public hearing, in accordance with Section 5.44.03.5 of the Newport Beach Municipal Code, to consider the request of Newport Beach Community Cablevision, Inc., for an increase in the rates charged for custom installations of cable antenna television service; and WHEREAS, on November 9, 1970, a public hearing was held at which time it was determined that.it.was fair and equitable, and in the best interests of the public, to grant the above request for an increase in installation fee; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport. Beach that: 1. The following .Rate Schedule, listing the rates for community antenna television .services which Newport Beach Community Cablevision, Inc., shall charge its subscribers, is hereby ..approved: -1- r . s* I r RATE SCHEDULE FOR CATV SERVICES A. Schedule of Residential Subscribet Charges Single family dwelling units and - multiple dwelling units in which each unit is connected separately) Installation Monthly TV Service Charges Fees First TV set $14.95 $6:5'0 Each additional set 5.00 1.75 (The above installation charges will be waived for the first 90 days after service is available in an area) FM Service (Together with TV service) _Each set 5.00 1.00 (The above installation charges will be waived for the.first 90 days after service is available in an area) (Without TV service) Each set 9.95 4.25 Each additional set 5.00 1.00 Reconnection (If discontinued for reasons other than move to new residence) 10.00 - Move to New Residence Cable previously installed at location 5.00 No previous installation at location 9.95 Relocation of Connections Within Home .First set 9.95 Each additional set 5.00 -- Custom Installations (Defined as being (1) a length $2.00 per foot -- greater than 35 feet., or (21 where (in addition boring or cutting asphalt or to basic concrete is required) installation charge) with a maximum charge of $75. -2- 'r RATE SCHEDULE FOR CATV SERVICES (continued) B. Schedule. of Commercial Subscriber Charges (includes garden apartments, apartment houses, motels,. hotels and other commercial establishments) -TV and /or FM Service .First set , Second through 20th set Twenty -first through 49th set Forty -first set and above (Where no charge indicated above, it is'assumed building already has internal distribution system.; otherwise, .installation cost will be charged on time and material basis). Custom Installations (Defined as being [1] a. length greater than 35 feet, or [2) where boring or cutting asphalt or concrete is required) Public Service (Including all schools; public libraries, police and fire stations, and hospitals) ATTEST: City Clerk Installation Charges $14.95 $2.00 per foot (in addition to basic installation charge) with a maximum charge o£.. $75. Monthly Fees $6.50 3.00 2.00 1.00 (No charge for the instal- lation of the first outlet in each public building. All additional outlets will be installed at a. charge for time and materials, only. Once connected, service will be provided free of charge to all outlets in all public buildings) 2_. Resolution No. 6760 is hereby rescinded. ADOPTED this 9th day of November, 1970. Mayor -3- THS:adw 11/12/70 ORDINANCE NO. 1890 AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING SECTIONS OF TITLE 5; CHAPTER 5.44, OF THE NEWPORT BEACH MUNICIPAL CODE ENTITLED "COMMUNITY ANTENNA TELEVISION" The City Council of the City of Newport Beach does ordain as follows: SECTION 1. The following sections of Newport Beach Municipal Code are hereby amended to read as follows: Sections: 5.44.010 Definitions. 5.44.020 Franchise to Operate. 5.44.03`0 Uses Permitted. 5.44.035 Regulation of Rates and Service. 5.44.040 Duration of Franchise. 5.44.050 Franchise Payment. 5.44.060 Limitations of Franchise. 5.44.070 Rights Reserved to City. 5.44.080 Permits, Installation and Service. 5.44.090 Location of Grantee's Properties. 5.44.100 Removal or Abandonment of Property of Grantee. 5.44.110 Failure to Perform Street Work. 5.44.120 Surety Bonds. 5.44.130 Protection of City Against Liability. 5.44.140 Inspection of Property and Records. 5.44.150 Operational Standards. 5.44.151 Technological Developments. 5.44.152 System Compatibility and Conr,ectibility. 5.44.160 Miscellaneous Provisions. 5.44.165 Adoption of Rules and Regular-ions by the City Council. 5.44.170 Application for Franchise. 5.44.172 Application Fee. 5,44.173 Affect of Annexation. 5.44.175 Affect of Preemption. 5.44.180 Franchise Renewal. • a • 5.44.185 Locking Devices to Permit Exercise of Parental Discretion. 5.44.190 Violations. 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 exists between these definitions and the definitions as set forth in other ordinances, these definitions will control. (a) CITY. 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) COUNCIL. The term "Council" shall mean the present governing body of the City, or any future board constitu- ting the legislative body of the City. (c) PERSON. The term "Person" shall mean any indivi- dual, firm, partnership, association, corporation, company or organization of any kind. (d) GRANTEE. 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) COMMUNITY ANTENNA TELEVISION SYSTEM. The term "Community Antenna Television System" or "CATV System" shall mean a system employing antennae, microwave, wires, waveguides, 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 cablecast programming not received through television broadcast signals; -2- 0 (3) transmitting television pictures, film and video tape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers; or transmissions; (4) transmitting or receiving two -way signals (S) 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; (6) transmitting or receiving all other signals whether digital, voice or audio visual. (f) SUBSCRIBERS or USERS. 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 tele- vision system, including, but not limited to, the conventional cable television system service of retransmission of television broadcast, satellite, microwave or radio signals, Grantee's original cablecasting, local government, education and public access channel cabelcasting and other services such as leasing of channels, data and facsimile transmissions and police, fire and similar public service communications. (g) GROSS ANNUAL RECEIPTS. The term "Gross Annual Receipts" shall mean any and all compensation and other considera- tion, in any form whatsoever, and any contributing grant or subsidy received directly or indirectly by Grantee from: (1) subscribers or users in payment for any CATV system services including television broadcast, satellite, micro- wave, 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 the terms "Basic Subscriber Services" or "Non Basic Services" as said terms may be.defined in the Municipal Code, as well as any installation or line extension charges therefor "; -3- • (2) any other compensation for utilization of or connection to the property 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; (3) notwithstanding the above, Gross Annual Receipts shall not include any taxes on services furnished by the Grantee and imposed directly on any subscribers or users by any City, State or other governmental unit and collected by the Grantee for such governmental unit. (h) BASIC SUBSCRIBER SERVICES. The term "Basic Subscriber Services" shall mean and include the delivery, by the Grantee, to all subscribers within the confines of its franchise area of: (1) all signals of over- the -air- television broadcast, pursuant to FCC license, or all those over- the - air - signals which are received and transmitted in the community without the aid of a cable television system or similar apparatus; (2) all satellite signals received and transmitted in the community by the Grantee as of the effective date of this Section; (3) all satellite signals received and trans- mitted in the community after the effective date of this Section, with the exception of those included under Section 5.44.010(1) of "Non Basic Services" as defined herein; (4) all public, local education, local govern- ment, local origination and public access channels and signals; (5) other channels, signals, (including micro- wave) programs and services, provided by the Grantee as part of the Basic Subscriber Service package. (i) NON BASIC SERVICES. The term "Non Basic Services" shall mean and include channels, signals, programs and services not provided as part of the "Basic Subscriber Services" package, as defined herein above. These shall include: (1) pay or subscription television as defined by the FCC and radio services supplied by the Grantee; -4- • • (2) satellite or microwave signals which are offered to subscribers as optional - tiered services for a separate fee or charge and which are independent of those satellite or microwave signals provided as part of the "Basic Subscriber Services" package as defined herein; (3) advertising or commercial messages, (4) equipment and appurtenances representing technological developments and enhancements in the field which the Grantee may, from time to.time, make available to subscribers, provided that subscribers have the option of not acquiring said additional equipment or appurtenances and further, provided that the exercise of the option not to purchase shall, in no way, affect a subscriber's existing service or preclude him from receiving "Basic Subscriber Services" as defined herein. (j) FRANCHISE AREA. 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. 5.44.035 Regulation of Rates and Service. (a) The City Council shall, at all times and from time- to -time during the term of any franchise granted hereunder, have the power to and shall adopt and enforce and Grantee shall conform to rules and regulations of the Council governing and establishing reasonable rules, regulations and standards of performance pertaining to the system of Grantee. (b) The City Council shall establish or approve all subscriber, installation and other incidental rates and charges for "Basic Subscriber Services ".as defined herein, and no such rates or charges shall be changed at any time except by authority of the Council and upon written request of the Grantee; provided, that prior to authorizing the change of any rates or charges of Grantee to Subscribers, at any time after the granting of such franchise, the Council shall first pass its resolution of intention to do so, describing and stating any rates or charges to be changed, the reasons of the Council therefor, fixing a day, hour and place certain when and where any persons having any interest therein may -5- appear before the Council and be heard and directing the City Clerk to publish said resolution at least once, within fifteen (15) days of the passage thereof. The City Clerk shall cause such resolution to be published in a newspaper of general circulation within the City, and the same shall be published and a copy thereof shall be mailed to any Grantee hereunder at least ten (10) days prior to the date specified for hearing thereon. At the time set for such hearing, or at any adjournment thereof, the Council shall proceed to hear.and pass on all presentations made before it, and the decision of the Council thereon shall be final and con- clusive. If the Council shall find that the changing of any rates or charges of Grantee to Subscribers will not be detrimental or injurious to the best interests and welfare of the subscribers and of the City, then the Council may, by resolution, authorize the change of any rates or charges of Grantee to Subscribers as shall be deemed reasonable by the Council in the premises; and such resolution shall thereupon become and shall be apart of any franchise granted hereunder and affected thereby. (e) The rates and charges for those services included under the definition "Non Basic Services" as defined herein shall not require City Council review and approval. The Grantee shall, however, provide the City with 60 -day prior written notification of any new rates or charges associated with Non.Basic Services to be provided within its franchise area. SECTION 2. The following Sections are hereby added to Chapter 5.44 of the Municipal Code: 5.44.151 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 G[� • 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 improve- ments 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 pro- gramming capabilities; (4) maintenance and improvement of system's physical plant in accordance with the highest and best accepted CATV industry practices and FCC regulations; bility; (5) implementation of two -way,, interactive capa- (6) provision of security systems; (7) application of technologies such as fiber 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: (1) whether'there exists a reasonable subscriber demand for the proposed improvements or modifications; (2) whether the technology asscciated 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 improve- ments or modifications will allow the Grantee a reasonable return on its investment in such proposed improvements or modifications. -7 11 0 (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 5.44.151 (c) above. (e) The Grantee shall provide the City with written notification of any system improvements or modifications proposed for implementation within its respective franchise area. (f) Any controversy between the parties hereto in- volving the construction or application of any of the terms, covenants, or conditions of this Section, shall, on written request of one party served on the other, be submitted to arbitration, and such arbitration shall comply with and be governed by the provisions of the California Arbitration Act, Sections 1280 through 1294.2 of the California Code of Civil Procedure. 5.44.152 System Compatability and Connectibility, (a) It is the desire of the City that all GATV systems franchised to operate within the City shall be compatible and interconnectible with one another and with systems in adjacent cities. (b) When it is financially and technically feasible, within the area served, the Grantee shall negotiate the construction, operation and modification of its system to interconnect same with all other systems within and adjacent to the City for the purpose of sharing locally originated public and educational programming. 5.44.185 Locking Devices to Permit Exercise of Parental ,Discretion. (a) Grantee shall make available to its subscribers, upon request and for a reasonable charge, locking devices to permit parental control over programming. SECTION 4. This ordinance shall be published once in the official newspaper of the City and same shall be effective thirty (30) days after the date of its adoption. me • • This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 9th day of November 1981, and was adopted on the day of NOV 23 1981, by the following vote, to wit: AYES, COUNCILMEMBERS: Cox, Hummel, Heather, Strauss, Maurer and Plummer NOES, COaICILMEMBERS: ABSENT COUNCILMEMBERS: MAYOR ATTEST': CITY CLERK CSRTIFIED AS A TRUE AN� CORRECT COPY CIiY CLERK OF THE Cr jl OF•14FWPORT •BGCM OAiH NOV 2 4 1981 r- 1 V RESOLUTION NO. 8706 N, A t2LSOLUTION Or THE CITY COUNCIL Or NrOPORT B-ACH APPROVING A RAT tTELEE ROMPTER OF NEWPORT BEACH II4 FEEFOR CABLE ANTENNA TELEVISION r OF THE CITY , INCREASE BY� THE MONTHLY SERVICE . WHEREAS, on November 9, 1970, the City Council of the City of Newport Beach adopted Resolution No. 7303 estab- lishing a rate schedule for cable antenna television service; and WHEREAS, Teleprompter of Newport' Beach has submitted a request for a Two Dollar ($2.00) rate increase in the monthly .cable antenna television service fee; and WHEREAS, by Resolution No. 8643 adopted November 24, 1975,; the City Council declared its intention to hold a public hearing, in accordance with Section 5.44 .035 of the Newport Beach Municipal Code, to consider the request of Teleprompter. of Newport Beach for an increase in the monthly fee for cable antenna television service; and WHEREAS, on February 23,,1976, a public hearing was:' held at which time it was determined that it was fair and equitable, and in the best interests of the subscribers and the public to grant the subject request for a rate increase'in the monthly cable antenna television service fee from. Six Dollars and Fifty Cents ($6'.50) to Eight Dollars and Fifty. Cents ($8.50)., NOW, THEREFORE, BE IT RESOLVED that the Newport Beach City Council hereby approves a Two Dollars ($2.0'0) rate increase in the monthly fee for cable antenna television service from Six Dollars and Fifty Cents ($ -6.50) to Eight Dollars tend Fifty -1- 9 6 RESOLUTION NO -. 8643 t1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO HOLD A PUBLIC HEARING TO CONSIDER A REQUEST BY TELEPROMPTER OF NEWPORT BEACH FOR A RATE INCREASE IN THE MONTHLY FEES FOR CABLE ANTENNA 'TELEVISION SERVICE WHEREAS, on November 9, 1970, the City Council of the City of Newport Beach adopted Resolution No. 7303 establishing a rate schedule which TelePrompTer's predecessor in interest could charge its subscribers; and. WHEREAS, TelePrompTer of Newport Beach has submitted' a request for a Two Dollar ($2.00) rate increase in the monthly cable antenna television service fee; and WHEREAS, Section 5.44.035 of the Newport Beach Municipal Code provides that prior to authorizing the change of any rates or charges by the holder of a Community Antenna Television Franchise, the City Council shall first adopt a Resolution of Intention to do so, and fix a time for a public hearing to consider said proposed change; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that a public hearing to consider a request by TelePrompTer of Newport Beach for a rate increase in the monthly cable antenna television service fee from Six Dollars and Fifty Cents ($6'.50) to Eight Dollars and Fifty Cents ($8.50) will be held on the 26th day of January, 1976, at the hour of 7:30 P.M. in the Council Chambers located at City Hall, 3300 Newport Boulevard, Newport Beach, California.. BE IT FURTHER RESOLVED that the City Clerk is directed to publish this Resolution of Intention at least once within fifteen (15) days following its adoption and to mail a copy of 11/25/75 said Resolution to each holder of a Community Antenna Television Franchise within the City of Newport_Beach. ATTEST: City'Clerk ADOPTED this 24th day of November , 1975 DDO:yz 11/19/75 9 0 r NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing regarding the request by TelePrompTer of Newport Beach for a rate increase in the monthly fees for cable antenna television service. NOTICE IS HEREBY FURTHER GIVEN that the said public hearing will be held on the 26th day of January , 1976 , at the hour of 7:30 P.M. in the Council Chambers of the City Hall of the City of Newport Beach, California, at which time and place any and all persons interested may appear and be heard thereon. i r2Ct^ � Laura Lagios City Clerk City of Newport Beach RESOLUTION NO. 8614 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADOPTING RULES AND REGULATIONS ESTABLISHING A CONSTRUCTION AND INSTALLATION SCHEDULE FOR TELEPROMPTER CORPORATION CABLE TELEVISION FRANCHISE PURSUANT TO SECTION 5.44.035(a) OF THE NEWPORT BEACH MUNICIPAL CODE. WHEREAS, TelePrompTer Corporation was granted a n cable television franchise in the City of Newport Beach by Resolution No. 7379 of the City of Newport Beach on March 8, 1971; and WHEREAS, the City Council of the City of Newport Beach desires to establish rules and regula ,Gions governing and establishing reasonable rules and regulations and standards of performance pertaining to the system, of TelePrompTer pursuant to Section 5.44.035(a) of the Newport Beach Municipal Code; and WHEREAS, TelePrompTer has submitted to the City Council a proposed schedule of construction and installation of the complete system of TelePrompTer; and WHEREAS, the City Council determines that it is in the best interest of the City to accept said schedule and establish said schedule as the rules and regulations and standards of performance of the system pertaining to TelePrompTer NOW', THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach as follows: 1. The hereinafter following schedule of construction and installation is hereby established as the rules and regula- tions of the City Council governing the construction and installation of the remainder of the system of TelePrompTer which is as follows: COMPLETION DATE. (a.) Leadership homes Nov. 1976 (b) Balboa Peninsula Dec. 1977 (c) Balboa Island Oct. 1978 (d) Lido Isle Sept. 1979 (e) Bay isle & Linda Isle Dec. 1980 (f) East Bluff & Bluffs Dec.. 1981 ACCEPTANCE OF COM-t-MUNITY ANTEFINA TELEVISION FRANCHISE WHEREAS, on the 27th day of December, 1966, the City Council of the City of Newport Beach adopted Ordinance No. 1197, entitled.. "An.Ordinance of the City, of Newport Beach Granting to Warner Bros. TV Services Inc. a. Nonexclusive Franchise to Construct, Maintain and Operate a Community Antenna Television System Within Said City "; ad WEEREAB, said CBTV franchise -was subsequently trans- ferred to Newport .Beach Cablevision, Inc. in accordance with the provisions of Resolution No.. 6945 adopted by the City Council on. March 10, 1969; and WHEREAS, on the 8th day of March, 1971, the City Council of the City of Newport Beach adopted Resolution No. 7.379, entitled. "A Resolution of the City Council of the City of Newport Beach Approving the Transfer of a Community Antenna Franchise from Newport Beach Cablevision, Inc. to TelePrompTer Corporation"; and WHEREAS, said.. Resolution. No. 7379 provided that the transfer of the CPTV franchise would not become effective until a written acceptance thereof had been filed with the City C..1erk by the transferee, TelePrompTer Corporation; and WB'EREaS,. TelePrompTer Corporation wishes to accept the transfer of said CATV franchise; NOW, THEREFORE, TelePronpTer Corporation hereby accepts the transfer of the CATV franchise originally granted to Warner Bros. TV Services,. Inc., by Ordinance. No. 1197,as subsequently amended, subject to the provisions of Resolution'No. 7379 whereby the City Council of the City of Newport Beach approved the transfer of said -1- ranchicc to .. :.....: CzJ.!_._.._cn, Inc. 197 I L PROAPTER CORPORATION Bj. (corporate seal) C_. T.I?:iCA^_E OF CITY CLERX I hereby c;_rtify that tho foregoing Acceptance of Community Antenna Television Franchise was received by me at the hour of o'c_oc m. on the day of 1971. City Cler:a TI :aaw 3/16/71 I 1.i RESOLUTION NO. 7 7 9 V rMK A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING TIM TRANSFER OF A CO.LHUNITY ANTENNA TELEVISION FRANCHISE FROM NEWPORT BEACH CABLEVISION, INC., TO TELEPROMPTER CORPORATION WHEREAS, there has been presented to the City Council a request for transfer of the community antenna television franchise held by Newport Beach Cablevision.,_:..Inc., to TelePrompTer Corporation; and WHEREAS, after holding a public hearing for the purpose of considering whether such proposed transfer would be in the public interest, the City Council hereby finds and determines that TelePrompTer Corporation has established its financial responsibility and ability to assume the obligations required by the.franchise heretofore granted to Newport Beach Cablevision, Inc.; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach, as follows: - 1. The transfer of the franchise.held by Newport Beach Cablevision, Inc. to TelePrompTer Corporation is hereby approved on behalf of the City.of Newport Beach,.subject to the filing with the Citv Clerk of written acceptance of said transfer on behalf of TelePrompTer Corporation;- 2. The foregoing approval of the transfer of said franchise is subject to the following.conditions: (a) This transfer shall not become effective for any purpose unless and until written acceptance thereof shall have been filed by the transferee with the City Clerk; and'such written acceptance shall be in- the form and substance as shall be prescribed by the City Attorney, and shall be. and shall operate as an acceptance of each and every term and condition contained in Ordinance No. 1197, Ordinance No. 1365 and in Chapter.5.44 of the Newport Beach Municipal Code, entitled "Community Antenna Television ". Said j 1 written acceptance shall be filed not later than 12:01 P.M. of the 30th day next following the date of the adoption by the Council of this resolution; and, in default of the filing of such written acceptance as herein required, the transferee shall be deemed to have rejected and repudiated the same; and thereafter the acceptance of the transferee shall not be received by the City Clerk and the transferee shall have no rights, remedies or redress in the premises, unless and until the City Council shall, by resolution, determine that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose. (b) Payment to the City of a transfer fee of One Thousand Dollars ($1,000) by the transferee. (c) Transferee agrees'that the City, acting through its Public Works Director, may impose a reasonable inspection fee to cover the.cost of inspection and supervision of any work done by transferee on or in any public street, alley, sidewalk or other public property, if in his discretion the Public Works Director determines that such inspection is necessary (d) The provisions of Section 5.44.090 of the Newport Beach Municipal Code shall be controlling with respect to the location and construction of any and all facilities of the transferee in streets, alleys or other public places within the City, it being expressly agreed that no new poles will be permitted unless the Public Works Director determines that existing public utility poles are unsuitable or unavailable for use by transferee. (e) The completion of the construction and installa- tion of community antenna television facilities in order to provide service to all potential subscribers throughout the entire franchise area shall-be completed within a time schedule, subject to the ^� approval of the City Council. -2- 0 (f) Transferee agrees to maintain current "as built" maps of the system on file in the office of the Public Works Director and at a Newport Beach office of the transferee where such records shall be open for public inspection during normal business hours. (g) Transferee shall file with the City`Clerk, subject to approval as to form and,.-content by,the City Attorney, all required bonds and insurance policies before this transfer shall become effective., Upon approval of the required.bonds and insurance policies by the City Attorney, Foote, Cone & Belding and Newport Beach Cablevision, Inc., shall be released from the aforesaid requirements and the City Attorney is hereby authorized to execute any necessary documents to effectuate said release. (h) Transferee agrees to comply with its obligation under subsection (h) of Section 5.44.160 of the Newport Beach Municipal -Code to furnish service free of, charge to public buildings within a reasonable construction time schedule, subject to the approval of the City Manager. (i) . Transferee agrees to abide by the schedule of fees and charges heretofore approved by the City Council. ADOPTED this 8th day.of March, 1971. ATTEST: City Clerk ,Mayor 3- .. 3/4/71 J RESOLUTION NO. 7; 3 8 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE SUCCESS BROADCASTING COMPANY TO ALLOW TELEPROMPTER CORPORATION TO USE EXISTING FACILITIES OF NEWPORT BEACH CABLEVISION, INC., LOCATED ON CITY -OWNED PROPERTY UNDER LICENSE TO SUCCESS BROADCASTING COMPANY WHEREAS, pursuant. to Resolution. No. 6874 the City Council authorized the execution of a license agreement between the City of Newport, Beach and Success Broadcasting Company, dated October 1, 1968, for the use by Success Broadcasting Company of certain City -owned property on the south side of 16th Street westerly of Monrovia Avenue; and WHEREAS, .Section 4 of said agreement provides, "Licensee may allow the Newport Beach Cablevision Company to use its existing facilities on the City property "; and WHEREAS, Newport Beach Cablevision, Inc., has sold its community antenna television franchise to TelePrompTer Corporation; and WHEREAS, the City Council has approved the transfer of said franchise from .Newport. Beach. Cablevision, Inc., to TelePrompTer Corporation; and WHEREAS, TelePrompTer Corporation has requested the City Council and Success Broadcasting Company to authorize it to use the existing facilities of Newport Beach Cablevision, Inc., located on the 'above described City property; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach, as follows: 1. Success Broadcasting Company is hereby authorized to allow TelePrompTer corporation to use the existing facilities cz Newport. Beach Cablevision, Inc., located on the above described City -owned property;: PROVIDED, however, that any physical expansion.. of the existing facilities u�:ed by Newport Beach Cablevision, Inc.,. -1- N `, on said City property shall be subject,to the prior approval of the City Council; ADOPTED this -Sth day of March, 1971., ATTEST: City Clerk Maybf " THS: mh -2 3/4/71 n"SOLUTIO ^r No. .7 3 7 3 A R SOLUTION CT T*= CITY CCrJ.•iCIL OF T'rM CITY OF NEWPORT BEAC:S DFCI =:RZM ITS 1=21 TION To FOLD A PUBLIC =_ -.ARI :G PC . T'. PUR?OSZ: OF CONSIDERING Taw T,ZA: ?Ss ER OF A COSL'iJ2ITY ANT -MMA TELEVISION F.UUdCHISE FROf NUWPORT BELCH CABLEVIS.ION, INC.. TO TELEPROMPTER C0RPORATION WHER IAS, there has been presented to the City Council a request for transfer of the community antenna television franchise held by Newport Beach Cablevision, 'Inc., to TelePrompTer Corporation; and . WEER°AS, the City Council desires to hold a public hearing on the question of whether or not said franchise 'should be transferred; NOW, =- EF0.4E, BE IT RESOLVED by the City Council of the City of Newport Beach, as follows. SEC'-^IO'; 1. A public hearing shall be held at the hour of 700 p.m. on the 22nd day of February, 1971, in the City Council Chambers, City Hall, 3300 Newport Boulevard, Newport Beach, California, for the purpose of cc,- derinq the adoption by the City Council of a. resolution approvi,-19 the proposed transfer of the community antenna television franchise presently held by Newport Beach Cablevision, Inc„ to TelePrcnpTer Corporation. SECTIO'. 2. The City Cleric. :is directed to publish this resolution once in the official newspaper of the City within ten days following its adoption, and to cause acopy hereon to be mailed to all ccra = unity antenna television franchise grantees. SECTZOP: 3.. At the time fixed for hearing, the City Council shall proceed to hear and pass upon such evidence, ...sti -ony and objections as may be presented; thereafter, the -1- City Council, by resolution, may approve the proposed transfer of said franchise. ADOPTED this 8th day of Felsuan7, 1971.. ATTEST: i City Clerk �. L�Z Mayor = na ✓` ORDINANCE NO.. S I G 4 AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING SECTION 5.44,040 OFCHAPTER. 5.44 OF THE NEWPbRT-BEAC:t=CIPAL CODE RELATING TO THE DURATION OF COMMUNITY ANTENNA. TELEVISION FRANCHISES The City Council of the City of Newport Beach does ordain as follows.: SECTION 1. Section 5.44.040 of Chapter 5.44 of the Newport Beach Municipal Code is hereby amended to read as follows ;.. "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, after thirty (30) days' notice of proposed termination and public hearing, that (a) the grantee has failed to comply with any provision of this Chapter, or has, . by act or omission, violated any 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 ac g:ires the CATV property of grantee." SECTION 2. This ordinance shall be published once in the official newspaper of the City, and the same shall be is ef--ective. 30 days after the date of its adoption. %) This ordinance was introduced at a regular meeting of -1- the City Council of the City of Newport Beach held on the 13'1 day of 1970, and adopted on the day of 1970, by the following to wit: ATTEST: City Clerk AYES, COLINICIIuNJEN: Mcl=is, Ky-rda, Rogers, Hirth, Croul, Dostal, Parsons NOES, COUNCIUMEN: None ABSENT COUNCILMEN Mayor -2- TFS::nh 11/19/70 ACCEPTANCE OF VAENDED FRAICEISE TO THE CITY OF NEWPORT BEACH, CALIFOR:UA, AND TO Tr—.. - SCYOP.ArBU MAYOR ADM MEMBERS OF THE COU_ICIL OF M- IE CI7Z OF 77EWPORT BEACH: i7E:TPORT BEACH CABLEVIS70N, 'IiIC.,. being the corporation identified as the successor grantee of Warner Bros. TB Se vic ?s Inc., under Ordinance No. 1197 enacted by the City Council of .e .City of "er000rt Beach on the 27th day of Decemoer, 1965, hereby accenta the amended community antenna television franchi >> in accordance_ with the terns and provisions of Ordinance No. enacted by the said City Council on the 14th day of Decembar; 1970. Dated: Oo:_ oration) By: CERTIFICA' 2 OF C="1 C:., RK I hereby certify that the foregoing acceptance of tta amended CATV franchise was received by me at the hour of on the day of 1 .971. C- -tv Clerk t - tt" I tL' RESOLUTION NO. A RESOLUTION OF THE CITY COUNCI: OF T!L CITY or NEWPORT BEACH DECLARING ITS INT;HTION TO HOLD A pUBLIC HEARING TO CONSIDER A PRJYOSAL BY THE NEWPORT''BEAGH CABLEVISION COMPANY, ,Ezc,, FOR AN INCREASE. IN THE I_`7STA'LLATION FEkls FOR CABLE'jjrf..NNA TELEVISION SZR`IICE WHBREAS, on April 22, 1968. t2°e Cir.y enancil of th_ city of Newport Beach adopted Resolution NO. 675o hich e3t.bli3h,ed the rates which 9ewport Beach- Community Cab1a=v.i;ion, Inc.. .sh�Ll charge its .subscribers; and W83AEA5, the city Council has r8c:.1v..rd a r• -"Ja =t for approval of an increase in the install -sticn fe•a for custom installations to provide for a charge of $2 per foot in �dditicn to the hasic installation charge of $L4.95, with the tot.ol in:•t -+11 a- tion charge not to exceed $75; and ;�I✓I,U. said proposed incrersa . in the in stall =ition lass which may be charged would apply to cuatorjs in,tall. I.-tions which are defined as being (1) a length greater th4a 35 feet, or (2) where boring or cutting asphalt or concrete is r= ?ui:edf and WHER8A8, section 5.44.035 of the Newporc Beach Municipal Code provides that prior to authori,.ing the eh..nge of any rates . or charges by the holder of the Community Antenna Television Franchise, the Council shall first adopt a .Resolution of Intontici to do so, and fix a time for public hearing for consideration of said mattarr -MCN, T%EBZ70M, BE IS RESOLVED by the 'City Council o: the city of 36wport Beachi That a public hearing to consider the r3caest of :;Ovport Bead: - .. _•' •:�� in the rates charged for cssstca in3tallation3 shall uo of maysmber. 1970, at the hour of 7:39 p.m., is the Council -I- ai Ii i . I L . -) - Chamber3 locAt-�d at City F'�' !'P'qn I Beach, C:.Jifornia; 2. The City Clerk is directed to oat. t:a.� Resolution of Intention at least once within 15 dvs it. tlopticn and to mail a copy of said PEzolutiOn to �-;Cr "Q1. C;m=wllty Antanna Television Franchi3e With L" the. C4t/ 0� 1'ft'+ O-t ADOPTED this -12th day of Cctobe.r, AT %M3 Ts city Cler)t -2- ORDINANCE NO. 1 2 G 5 AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING ORDINANCE NO. 1197 WHICH r�R,aY17` A NON - EXCLUSIVE .FRANCHISE TO CONSTFQ'_' MAINTAIN AND OPERATE A COMMUNITY ANTENNA TELEVISION SYSTEM TO WARNER BROS. TV SERVICES, INC.:, A PREDECESSOR OF NEWPORT BEACH CABLEVISION, INC., THE EXISTING FRANCHISE HOLDER The City Council of the City of Newport Beach .. does ordain as follows; SECTION 1. Section -1 of Ordinance No_ 1197 is hereby .amended to read as follows: "SECTION 1. Definitions. - Wherever in this ordinance the following words or phrases are used, they shall have the respective meanings assigned to them in the following definitions; and words or phrases not defined in this section which are defined in any franchise document shall have the same meaning in this ordinance assigned to them in such franchise . document, unless the context in which they are used shall clearly indicate a different meaning: (a) 'City' shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. (b) 'Council' shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) 'Person' shall mean any .individual, firm, partnership, association, corporation, company or organization of any kind. (d) 'Grantee' shall mean Newport Beach Cablevision,. Inc., its employees, agents, successors and assigns. (e) 'Community Antenna Television System' or -1- 'CATV System' shall mean system of antennae, coaxial cables, wave guides, poles, wires, underground conduits, manholes and other conductors, equipment or facilities designed, constructed or used for the purpose of providing television.., radio or other service, by cable or through its facilities as herein contemplated. CATV shall not mean or include they transmission of any special program or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as 'pay television.' (f) 'Subscribers' shall mean-any person or entity receiving for any purpose the CATV service of the Grantee herein. (g). 'Gross Annual Receipts' shall mean any and all compensation in the .form of gross rental and /or service receipts, with the exception of initial installation charges, received directly or indirectly from subscribers or users in payment for CATV services and shall also include all revenues received for advertising. Gross :annual receipts shall not include any taxes on services furnished by the Grantee imposed directly on any subscriber or used by any city, state or other govern- mental unit . and collected by the Grantee for such governmental: unit. (h) 'Franchise Area' shall mean the territory within the City throughout which Grantee shall be authorized to construct, maintain and operate its system and shall include any enlargements thereof and additions thereto. (i) 'Franchise Documents' shall mean and shall include all of the following:: (1) Article XIII of the Charter of the City of Newport Beach.. -2- 1] 11 (2) Chapter 5.44 of Title 5 of the Newport Beach. Municipal Code as the same now exists or as it may hereafter be amended.. (3) Any and all rules and regulations governing the operation of CATV Systems within the City of Newport Beach which are adopted by the City Council. (4) The written acceptance of CATV Franchise filed with the City by the Grantee. (j') 'Street' shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, or right of way whether or not improved, now or hereafter existing as such throughout the City," SECTION 2. Section 4 of Ordinance No. 1197 is amended to read as follows: "SECTION 4. Term of Franchise The term of this franchise shall be twenty -five (25) years, commencing on January 27, 1967." SECTION 3. Section 12 of Ordinance No. 1197 is amended to read as follows: "SECTION 12. Annual Franchise 'Fee The Grantee shall pay annually to the City during the life of this franchise for the privilege of operating a CATV system under this franchise the following percentages of gross receipts: Gross Receipts Percentage Payable On the first $200,000 3 %' On the next $100,000 3 -1/2% On the next $100,000 41/ ' On the next $100,000: 4 -1/2% in excess of $500,000 5% SECTION 4. This ordinance shall be published once in the official newspaper of the City, and the same shall be -3- f � • effective 30 days after the date of its adoption:. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Bea4i t'a c;z; day of ;��,.�<-- :.�;.� 1970, and was adopted on the day of /,_� s ,„ b� r , 1970, by the following vote, to wit; ATTEST: City Clerk. D, tM ... ..... ...... , AYES, COUNCILMEN: McInnis, Kymla, Rogers, Hirth, Croul, Dostal, Parsons NOES, COUNCILMEN: None ABSENT COUNCILMEN: None Mayor Imfl J. THS :mh 11/19/70 J FRANCHISE REQUIREMENTS NEWPORT BEACH SEC. 5.44.030 USES PERMITTED INCLUDING TREE TRIMMING IF :NEEDED. SEC. 5.44.035 RATE REGULATION - NO LONGER APPLIES SEC. 5.44.040 DURATION OF FRANCHISE - COUNCIL CAN REVOKE AFTER 30 DAYS NOTICE AND PUBLIC HEARING IF WE FAIL TO COMPLY WITH ANY PROVISIONS OR VIOLATED ANY TERMS OF THE CONTRACT. SEC. 5.44.050 FRANCHISE PAYMENTS. SET FEE ANNUALLY (WITHIN 30 DAYS OF EXPIRATION OF CALENDAR YEAR) WE ARE TO PROVIDE A FINANCIAL STATEMENT BY A CERT. PUBLIC ACCOUNTANT SHOWING GROSS ANNUAL RECEIPTS, 'AS DEFINED HEREIN. WE MUST 'PAY THE CITY WITHIN 10 DAYS AFTER THE TIME FOR FILING SUCH STATEMENT ANY UNPAID BALANCE FOR THE CALENDAR YEAR COVERED BY THE STATEMENT. IF ABOVE PAYMENT IS NOT RECEIVED WE WILL PAY A 2$ PENALTY -PER MONTH ON THE UNPAID BALANCE. ? ?IF PAYMENT FOR INCTALL AND SERVICE IS LESS THAT $1500.00 WE AGREE TO PAY $25.00 PER MONTH ?? THE CITY HAS THE RIGHT TO REAUDIT AND RECOMPUTE ANY AMOUNTS PAID - NO ACCEPTANCE OF PAYMENT SHALL BE CONSTRUED AS A RELEASE. ? ? ?20% DAMAGES FOR NON PAYMENT ?? ?? SEC. 544.050 WE ARE SUBJECT TO ALL REQUIREMENTS OF THE ORDINANCES, RULES REGUALTIONS FEES AND SPECIFICATIONS OF THE CITY ALL DISTRIBUTIONS STRUCTURES TO CAUSE MINIMUM INTERFERENCE. WE REPAIR ANY DAMAGE TO SIDEWALKS ETC TO SATISFACTION OF PUBLIC WORKS DEPT. i WE WILL AT OUR EXPENSE MOVE CABLE WHEN REQUESTED BY PUBLIC WORKS FOR STREET IMPROVEMENT ETC. WHEN NECESSARY TO TEMPORARILY INTERRUPT SERVICE IT WILL BE AT A TIME THAT WILL CAUSE THE LEAST AMOUNT OF INCONVENEINCE TO COUSTOMERS. - GIVE REASONABLE NOTICE WHEN POSSIBLE. CANNOT CHANGE OWNERSHIP ETC. WITHOUT RESOLUTION ADOPTED BY CITY COUNCIL. WE HAVE NO RECOURSE AGAINST CITY FOR ANY LOSS, COST, EXPENSE OR DAMAGE WE HAVE TO GET POLE RENTAL AGREEMENTS ETC. REMOVAL OF EQUIPMENT UPON FRANCHISE TERMINATION ? ?? SEC. 5.44.120 SURETY BOND $100,000.00 RENEWABLE ANNUALLY? ?? BOND FOR PROTECTION OF SUBSCRIBERS $50,000.00 FOR LIFE OF FRANCHISE SEC. 5.44.130 INDEMNIFICATION: COMPREHENSIVE LIABILITY INSURANCE'! SEC. 5.44.140 INSPECTION OF RECORDS WE ALLOW INSPCECTION OF PROPERTY, MAPS, RECORDS, WE INCURR COSTS INVOLVED WITH EXAMINATION IF NOT AVAILABLE. REPORTS ON OPERATIONS ETC. TO CITY MANAGER PLANS AND RECORDS OF LOCATION OF CATV SYSTEM EQUIPMENT FILE WITH DIRECTOR OF PUBLIC WORKS EACH YEAR BY END OF MARCH A CURRENT SET OF MAPS DRAWN TO SCALE SHOWING ALL CATV SYSTEM EQUIPMENT INSTALLED AND INPLACE IN STREETS,A LLEYS AND OTHER PUBLIC PLACES DURING THE PREVIOUS YEAR. SEC. 5.44.150 OPERATIONAL STANDARDS SEE ATTACHED REQUIREMENTS TO PROVIDE SERVICE PROVIDING SUB PAYS APPLICABLE FEES. ETC: PROVIDE SERVICE WITHOUT CHARGE TO ALLL PUBLIC SCHOOL BUILDINGS, CITY POLICE AND FIRE STATIONS, CITY RECREATION CENTERS AND THOSE OTHER CITY OWNED BUILDINGS DESIGNATED BY THE CITY MANAGER. SEC. 5.44.165 ADOPTION OF RULES AND REGUALTIONS - DOES THIS STILL APPLY? SEC. 5.44.185 PROVIDE LOCKING DEVICES TO PERMIT PARENTAL CONTROL (FOR A REASONABLE CHARGE ?) 5.44.040 - 5.44.050 BUSINESS LICENSES AND REGULATIONS made before it, and the decision of the Council thereon shall be final and conclusive. If the Council shall find that the changing of any rates or charges > of Grantee to Subscribers will not be detrimental or injurious to the best interests and welfare of the subscribers and of the City, then the Council may, by resolution, authorize the change of any rates or charges of Grantee to Subscribers as shall be deemed reasonable by the Council in the premises; and such resolution shall thereupon become and shall be a part of any fran- chise granted hereunder and affected thereby. (c) The rates and charges for those services included ides, the defini- tion "Non Basic Services" as defined herein shall not require City Council review and approval. The Grantee shall, however, provide the City with 60 -day prior written notification of any new rates or charges associated with Non Basic Services to be provided within its franchise area. (Ord. 1890 § 1 (part), 1981: Ord. 1178 § 3, 1966). 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 (2 5) 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, after thirty (30) days' notice of proposed termination and public hearing, that (a) the grantee has failed to comply with any provision of this Chapter, or has, by act or omission, violated any 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. (Ord. 1364 § 'l, 1970: Ord. 1171 § 4, 1966: Ord. 1153 § 6953, 5.44.050 Franchise Payment. (a) ACCEPTANCE FEE. The grantee of any franchise 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 annually to the City during the life of such franchise a fixed percentage of the gross receipts of the grantee derived from subscribers 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. The grantee shall file with the City,(within thirty (30) days after the expiration of any calenda)year during which such franchise is 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 calendar year. It shall be the duty of grantee to pay to the City, within ten (10) days after the time for filing such (Newport Beach 2 -82) 120-6 . A/z WPO4?T '8EAC{4 ' P4 V9,0) COMMUNITY ANTENNA TELEVISION 5.44.060 statement, any unpaid balance for the calendar year covered -o statement. In the event that the above payment is not received by the City within the spegified time, grantee shall pay to the City a penalty of two percent (2%) per month on the unpaid balance in addition thereto. In any year or portion thereof commencing at. the conclusion of the fast year that service is provided during which payments to grantee for installation and services amount to less than Fifteen Hundred- Dollars ($1500) per month, grantee shall pay to the City a minirrium amount of Twenty -five Dollars ($25) per month. The right is reserved to the City of audit and re.computation 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 or additional sums payable under this chapter or for the performance of any obligation thereunder. In the event of any holding over after expiration or other termination of said franchise, without the consent of the City, the grantee shall' pay to the City damages of not less than twenty percent (20 %) of its gross profits during said period. (Ord. 1178 § 5, 1966: Ord. '1153 § 6954, 1966). 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 specifications of the City heretofore' or hereafter enacted or established, 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, 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 120-6a (Newport Beach >2•82) • � Ass1Gr ^fr•,ti~r WHEREAS, Newport Beach C'ablevision, California corporation ( "Newport"), is the successor to Pacific Cable Services, Inc., a Delaware corporation ( "Paci.fic "), as (1) the licensee under a certain License, Lease and Agrecmant, dated July 5, 1967, by and between Golden Rain Foundation, a California corporation ( "Colden Pain "), and Pacific, whereby Golden Fain granted to Pacific 25- year.irrcvoc"-ble licenses to construct and operate a CATV system in the area knmm as Seal P finch Leisure World aV. .(2) the lessee under a certain Lease, dated Septcvber 8, 1967, betacen. Golccn Rain and Pacific, whereby Gold= Rain leased to Pacific, for a total amount of $15,000, subject to adjuctr: art as therein provided., certain described property in Seal Beach, California; and VMLEREAS, by a certain Purchase Agreement, dated December 31, 1170, by and between Teleprompter_ Corporaticn, a Few York Corporation ("TeleD1 "Oi^�ter "), and I.7el )ort "Purchase Agreement"), 'Neav ort agreed to sell to Telepra:.:pter, and Telepro.n)ter acreed to purchase, at the closing, all of the assets, good will and biusincss of r;ei po t, cx- -cpt certain r r• assets therein listed, and Teleprompter agreed to assume at,thc closing all liabilities and obligations of Newport under the franchises, leases and other agreements set forth in a. certain exhibit to the Purchase Agreement, including the License, Lease and Agrecinent and the Lease described in the first preamble hereto; NOW) THEREFORE, subject to and conditioned upor the closing of the Purchase Agreement, Newport hereby ssigns to Teleprompter all of its rights, interest, liabilities and obligations under the said License, Lease and Agreement and under the said Lease from and after the date of closing of said Purchase Agreement. Dated: NEUTPOP,T BEACH CABLEVISIO\, INC. By ASSMIPTION Subject to and conditioned upon the closing of the Purchase Agreement, Teleprompter hereby (1) assumes all of Nex•;port's rights, interest, liabilities and obligations .o. o under the License, Lease and Agreement and under the Lease described in the foregoing Assignment from and after the date of closing of said Purchase Agreement, (2) agrees that, from and after said date, it will fully comply with all terms and conditions of said License, Lease and Agreement and said Lease which, by the terms thereof, apply to the respective licensee and lessee thereunder and (3) further agrees that it wil not increase the charges to residents of Seal Beach Leisure World, as provided for in said License, Lease and Agreement, except in accordance therewith. Dated: TELEPPUZPTER COnMIAT?ON Y t CONSENT TO ASSIG? ENT AND ASS "LT ;. 1. T0:•I Subject to and conditioned upon the closing of the Purchase Agreement, Golden Fain hereby consents to the assi:gn- went by Newport to Teleprompter and the assumption by Tele- prompter of all of i:ewport`s rights, interest, liabilities and obligations under the License, Lease and Agreement and under. the Lease described in the foregoing Assignment and agrees to look solely to Teleprompter for performance of the terms and conditions of said License, Lease and Agreement and of said Lease from and after the date of closing of said Purchase Agreement. Dated: GOLDIEN PIAIN FOUNDATION By ' U CONSENT OF FEDERAL DEPAPT'•w NT OF HO'JS ?1':G A';D UP " '" D V7,T 000 -,_- NT Subject to and conditioned upon the closing of the aforementioned Purchase Agreement, the Federal Department of Housing and Urban Development hereby consents to the assign- ment to and assumption by Teleprompter Corporation at the closing thereof of all the rights, privileges, duties and obligation's under the Lease described in the foregoing Assignment from and after the date of said closing. Dated: FEDP ^.T DP'_' .PT:ISNT. OF HOUSIING AND URBAN D >VELO131.11'iT , 0 i,ltle) e 1- moLuTIO I I-jo. F. 9 4 5 A r,ESOLUTION 07 THE CITY COUNCIL OF 1.1E CIrZ OF ,UEUPLMT BEACH A1'?-ROVLNG THE M.N iSFER OF A GJ ?�.Ji1I?". ttgTE7,% i?iA ` rUVI5ION P CT ?Irl .. L„ Sr ICES; J IC., TO NI MRO .s HIACH C- ULiVISIONS LIC. 1-RO ., ', on the 77th slay of December, 1966, the City Cal-mc3 of the City of 'Newoo;.t teach adopted Ozdi.rance No. 1197, entitled "AN 02OI2WICE OF THE CIU OF hV -WP0RT BEACH GRANTING To WA NMR BROS. TV SERVICES, INC._ A NONE CLJSra n' i:Icmn To CONSTRUCT, MALN —LAiN AND OPEFL-AtTE A C01d4IMITY ail? -MA TELE IISION SyST,xi WITHIN SAID CITY " ;. and i�"r MEAS, on April 22, 1908, the City Council adopted Resolution tin. 0759 whereby the Council approved the transfer of said communi`y „antenna television franchise from Warner Bros. T,7 Service30 Inc., to Faelf.c Cable services, Inc,; and :y'. AS, the City Council has received a request for transf -ar of the co=unity antenna television franchise held by ?acif?c Cable Sarvices, Inc,, to i-�wport beach Cablevision, Inc.; and ?,7i EA5, after consideration of zd-ia fequested transfer, the City Co=cil has detaraiued. that the - proposed transferee is financially responsible•an(! thaC' there is no objection to the approval 0= the proposed transfer;:.. IrQTd, 'i y3F-3RE,..._BE IT RESOLV D. by'the ui tv Council. of . tne City of dewoort Beach that the transfer of the .franchise held bY Pacific Cable Ser--rices, Inc,., to Newport Beaca Cable-vision, 'a ixeraby approved on behalf of the City of -Y— Wp ort Beach. -s,Xoj:.SCt to the filLn with tiu'a City Cleric of written acizentance .. of soil 'raysfer on behalf of ;7awport Beach CnbleTision, 'sic. ADOMED this _! e f I, d3 Of Pyt C. ;ayc r THS :mh 317169 THS :mec 4/26/68 \4l� \ ACCEPTANCE OF COMMUNITY ANTENNA TELEVISION FRANCHISE WHEREAS, on the 27th day of December, 1966, the City Council adopted Ordinance No. 1197 entitled: "An Ordinance . of the City of Newport Beach Granting to Warner Bros. TV Services, Inc. a Nonexclusive Franchise to Construct, Maintain and Operate a Community Antenna Television System Within Said City "; and WHEREAS; on the 22nd day of April, 1968, the City Council of the City of Newport Beach adopted Resolution No. 6759 ✓ entitled "A Resolution of the City Council of the City of Newport Beach Approving the Transfer of Community Antenna Television .Franchise From Warner Bros. TV Services, Inc., to Pacific Cable Services, Inc. "; and WHEREAS, said resolution provided that the transfer of the CATV franchise would not become effective until a written acceptance thereof had been filed by the transferee, Pacific Cable Services, Inc., with the City Clerk; and WHEREAS, Pacific Cable Services, Inc., wishes to accept the transfer of said CATV franchise; NOW, THEREFORE, Pacific Cable Services, Inc., hereby accepts the transfer of the CATV franchise originally granted to Warner Bros. TV Services, Inc., by Ordinance No. 1197, subject . to the provisions of Resolution No. 6759 whereby the City Council of the City of Newport Beach approved the transfer of said franchise. Dated: /O , 1968. (Corporate Seal) I hereby certify that the foregoing Acceptance of Commu- nity Antenna Television Franchise was received by me at the hour of o'clock _ M. on the day of 1968. City Clerk Al RESOLUTION WHEREAS, on the 22nd day of April, 1968, the City Council of the City of Newport Beach adopted Resolution. No. 6759, entitled "Resolution of the City Council of the City of Newport Beach approving the transfer of a Community Antenna Television ` Franchise from Warner Bros.. T. V. Services., Inc. to Pacific. Cable Services, Inc. ", and WHEREAS, said resolution provided that the transfer of the CA.TV franchise would not become effective until a Written. Acceptance thereof is filed by Pacific Cattle Services, Inc. with the City Clerk of the City of Newport Beach, and WHEREAS, it is in the best, interests of Pacific Cable Service..s, Inc. to accept the transfer of said CATV franchise; NOW, THEREFORE, BE IT RESOLVED: That the transfer be accepted by Pacific. Cable Services, Inc. and that the president and secretary be and they hereby are authorized to execute said form Acceptance and any other documents necessary to accom- plish said transfer, and that said Acceptance with a certified copy of the resolution hereof be transmitted to the City Clerk of Newport. Beach, California. CERTIFICATE OF SECRETARY I, the undersigned; do hereby certify: That I am the duly elected and acting secretary of PACIFIC CABLE SERVICES, INC. , and that the foregoing: resolution, comprising one page, was duly passed at a meeting.. of the Board of Diredtors thereof duly held on, the lst day of May., 1968, becretary,.� r N 6J­ THS;me- 4%19/68 RESOLUTION NO, C/ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APP OVING THE TRANSFER OF A COIRIU -- NITY ANTENNA TELEVISION FRANCHISE FROM WARNER BROS. TV SERVICES, INC., TO PACIFIC CABLE — SERVICES, INC,� - S WHEREAS, on the 27th day of- December, 1966, the City Council adopted ordinance No, 1197 entitlea„ . "An Ordinance of the City of Newport Beach Granting to Warner Bros, /TV Services, Inc, a Nonexclusive Franchise to.,Construct, Maintain and Operate a Community Antenna Television System Within Said City" and SJHEREAS,,on the 25th day of 'March, 1968, the City Council held a public hearing for the purpose of considering: 1. Whether the CATV franchise originally granted to Warner Bros, TV Services, Inc., should be terminated in accordance with the provisions of Chapter 5.44 of the Newport beach Municipal Code, entitled "Community Antenna Television " -' and 2. Whether the transfer of the CATV fran- chise from Warner Bros, TV Services, Inc., to Pacific Cable Services; Inc,, should be approved', and WHEREAS, said Hearin- was continued until the 8th day of April, 1968, at which time the City Council, after hearing evidence, closed said hearing and determined that the proposed transferee was financially responsible and that it would be in the public interest to.approve the proposed transfer of said franchise from Warner Bros; TV Services, inc,, to Pacific Cable Services, Inc.; NOW, THEREFORE, BE TT RESOLVED by the City Council of the City of Newport Beach as follows: 1, . The transfer of the franchise originally granted to Warner Bros. TV Services, Inc,, by Ordinance No. 1197 to Pacific Cable Services, Inc., is hereby approved 2.. The proposed acquisition of Pacific Cable Ser- vices, Inc., by Newport Beach Cablevision, Inc.; and the proposed. f F exercise of said franchise by Pacific Cable Services, Inc., as a wholly owned subsidiary -of Newport Beach Cablevision, Inc.., is approved. 3, The foregoing approvals are subject to the fol- lowing conditions; A. Pacific Cable Services.. Inc.,, agrees that an express condition of the approval by the City Council of this transfer is that prior approval of the City Council shall be required where ownership or control-of more.than 30% of the right of control of Pacific Cable Services, Inc., is acquired by a person or group of persons ;acting in con - cert, none of whom own or control 30% or more of such right of control, singularly or collectively. By its ac- ceptance of this franchise, Pacific Cable Services, Inc., agrees that any such change in ownership occurring without prior approval of the City Council shall constitute a violation of this franchise by Pacific Cable Services, Inc. B. This transfer shall not become effective for any purpose unless and until ;,mitten acceptance thereof shall have been filed. by the transferee with the City 'Clerk; and such written acceptance shall be in form and substance as shall be prescribed by the City Attorney and shall be and shall operate as an acceptance of each and every term and condition contained in Ordinance No, 1197 and in Chapter 5,44 of the Newport Beach Municipal Code entitled "Community Antenna Television ". Said written acceptance shall be filed not later than 12.01 P.M. of the thirtieth (30th) day next following the date of the adoption by the Council of this resolution,; and, in default of the filing of such written acceptance as herein required, the transferee shall be deemed to have -rejected and repudiated the same; 17 1f °'lC.: a. �'wY £, °'lC.: a. uas of of 'th and tv olvas; to; r"I addition tol the f renabiae: docum this bond ,and aamply-vith any"vcmo:ar or. of any'.. other'City'.6 shall be recoverable- cipal" and . Sure ty, t any.: Obligoe mwtarvsult.�of shall JU*IUdsL &ttorneyj im-and shall include timiJecat,of row, costs which may be .in 4 this bond I �/,­.,*Ad ' 0 ,this% 4 during the 6ntire = tsjam rrinqiv. l. R% bV* L jh&jLjj;.84 to QbLi&**.*hich arise stanch time as Prinail Pied any and all such I Under this bODA shallA 'Judgment'bt entered reasonablo-Attormay which Prixinivsl�snd 0 Em Imi r 0 - i t a c C too land -cost'#! C ;fall; °sffio�mt Act or abandoarunt8 ti on svcb"francblsi; find ^in' full,-,am `of brvortaln' q uas of of 'th and tv olvas; to; r"I addition tol the f renabiae: docum this bond ,and aamply-vith any"vcmo:ar or. of any'.. other'City'.6 shall be recoverable- cipal" and . Sure ty, t any.: Obligoe mwtarvsult.�of shall JU*IUdsL &ttorneyj im-and shall include timiJecat,of row, costs which may be .in 4 this bond I �/,­.,*Ad ' 0 ,this% 4 during the 6ntire = tsjam rrinqiv. l. R% bV* L jh&jLjj;.84 to QbLi&**.*hich arise stanch time as Prinail Pied any and all such I Under this bODA shallA 'Judgment'bt entered reasonablo-Attormay which Prixinivsl�snd 0 Em Imi r 0 - i t a c C too land -cost'#! C ;fall; °sffio�mt Act or abandoarunt8 ti on svcb"francblsi; find ^in' full,-,am `of brvortaln' -C-1 �31 bo aii " 0 "1 0 pr o ce QL. oro � a r eWgf e r dL in o q — "7 "OlerveA 0 State, � ;ZZ— ofta r, 10 me Ito mect and.k. -bo­f�be Pe Zeia' na fl+�TT'TWITy'J"S '(Tm,w•'p "M .9^ a ,ate- f��`�•T'. *- 4, {.: ._�� THS:mec + 4/19/68 ` RESOLUTION NO. 6760 O A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING 'ra PROPOSED RATES AND CHARGES TO SUBSCRIBERS OF PACIFIC CABLE SERVICES, INC. WHEREAS, on the 27th day of December, 1966, the City Council adopted Ordinance No. 1197 entitled.;. "An Ordinance of �. the City of Newport Beach Granting.to Warner Bros. TV Services, t Inc. a Nonexclusive Franchise to Construct, Maintain and Operate a Community Antenna Television System Within Said City"; and WHEREAS, on the 22nd day of April, 1968, the City } Council of the City of Newport Beach adopted Resolution No. entitled ^A Resolution of the City Council of the City of Newport Beach Approving the Transfer of a Community Antenna Television Franchise From Warner Bros. TV Services, Inc:, i 1 to Pacific Cable Services, Inc.; and WHEREAS Section 5.44,035 of the Newport Beach Municipal Code provides that at the time of the granting of any community 1 antenna television franchise "the. City Council shall establish or a approve all rates and charges allowable to grantee ...< ^; and WHEREAS, Pacific Cable Services, Inc., has submitted a proposed rate schedule to the City Council which the Council I ..finds acceptable; I, NOW, THEREFORE, BE IT RESOLVED that the following Rate 1( Schedule for CATV Services proposed by Pacific Cable Services, Inc.., is hereby approved by the City Council.. RATE SCHEDULE FOR CATV SERVICES A. Schedule of Residential Subscriber Charges (Single gamily Dwelling units ant .multiple dwelling units in which each unit is con- nected separately.) Installation Monthly Charges Fees TV Service First st TV et $14.95 $6.50 Each additional set 5.00 1.75 (The above installation charges will be waived for the first 90 days after service is available in an area.) �t x. e s • 11 t P Installation Monthly Charges Fees FM Service Toget er with TV Service Each set $5..00 (The above installation charge will be waived for the first 90 days after service is available in an area.) Without TV Service 9 -.95 4.25 Each additional set 5.00 1.00 Reconnection (if discontinued for reasonsother than move - --- to new residence) 10.00 Move to New Residence Cable previously installed t at location 5.00 - - -- tf No previous installation i at location 9.95 - - -- Relocation of Connections Within Home - - -- rst set 9.95 Each additional set 5.00 ,) B. Schedule of Commercial Subscriber Charges E� _c ues gar en apartments, apartxent houses, motels, hotels and other com- mercial establishments.) installation Monthly Charges Fees TV and /or FM Service First set $14.95 $6.50 Second through twentieth fi set no charge 3.00 Twenty -first through !�.. fortieth set no charge 2,.00 Forty - first. set and above no charge 1.00 (Where no charge indicated above, it is assumed building already has internal distribution system; otherwise, instal- lation cost will be charged on time and material basis.) Public Service Including ail schools, (No charge for the instal - public libraries, police lation of the first outlet and fire stations, and in each public building. hospitals All additional outlets will be installed at a charge for time and materials, only. once connected, service will be provided free of charge to all outlets in all public buildings_) ADOPTED this 22nd day of Apx- -1 1968. ATTEST• i ^� �Q Mayors ty ert 2. ACCEPTANCE OF CATV FRANCHISE TO THE CITY OF NEWPORT BEACH, CALIFORNIA, AND TO,- THE HONORABLE CITY COUNCIL OF SAID CITY: Warner Bros. TAT Services,„ Inc., a Delaware corporation, being the person identified as the Grantee in Ordinance No. 1197, duly adopted by the City Council of the City of Newport Beach on the 27th day of December, 1966, hereby accepts the CATV franchise therein granted, together with all of the terms and conditions thereof, subject to the action of the City Council with reference thereto at its regularly scheduled meeting on December 27, 1966 and with particular reference to the moratorium for establish - ment of rates and construction schedules. Dated: meal of corporation January 10, 1967 Warner Bros. TV Services, Inc., a Delaware_ corporation, By R. Frost Vice - President & General Manager CERTIFICATE OF CITY CLERK I hereby certify that the foregoing Acceptance of CATV Franchise was received by me at the hour of _Y— o' clock �• M. on the f ,. day of U, 190'7. t City Clerk P 1 y .. • Cook -"-7, 4 COMMUNITY ANTENNA TELEVISION 5.41.230.41.2 members thereof by other members or officers thereof, voluntapil'y al without remuneration for making such solicitations; or if the redcitatio are in the form of collections or contributions, or if the solicitations a in the forms of collections or contributions at the regula<t assemblies services of any such established person. (Ord: 1171"1 1(part) Ju 25,1966). 5.41.230 Religious Solicitation — Hourly ction. No person sh; solicit contributions for any religious purp in any residential area the city at a time other than between to m. and nine p.m. on any dz except Sunday and at any time except tween the hours of twelve noc and nine p.m. on Sundays. (Ord. 11 1 1 (part); July 25, 1966). 5.41.240 Religious Solicitatio Investigation of Affairs of Persc Soliciting for Religions Purpo . The City Manager is authorized to i, vestigate the affairs of any rson soliciting for religious purposes undo a certificate issued under ection 5.41.220 and to make public his writtc findings of any of said rsons. Said persons shall make available to tl City Manager, or to y representative designated by the City Manager writing for such s ific purpose, all books, records, or other informatic reasonably nece to enable the City Manager to fully and fairly i:.foc the public of facts necessary to a full understanding by the public c the work an methods of operation of such persons; provided that fiN (5) da }x.�ore the public release of any findings under this section tl City Merger must first serve a copy of said findings upon the post investi ated, and at the time of the release of his findings he must relew a copy of any written statement said person may file with the City Ila, ago in explanation, denial, or confirmation of said findings. (Ord 117 JA (part); July 25, 1966). . Chapter 5.44 120 -1 cN..aoet aw iLirr r COMMUNITY ANTENNA TELEVISION Sections: - 5.44.010 Definitions. 5.44.020 Franchise to Operate.. 5.44.030 Uses Permitted. 5.44.035 Regulation of Rates and Service. 5.44.040 Duration of Franchise. 5.44.050 Franchise Payment. 5.44.060 Limitations of Franchise. 5.44.070 Rights Reserved to the City. 5.44.080 Permits, Installation and Service. 5.44.090 Location of Grantee's Properties. 5.44100 Removal or Abandonment of Property of Grantee. 5.44.110 Failure to Perform Street Work. 120 -1 cN..aoet aw iLirr r 5.44.010 5.44.120 5.44.130 5.44.140 5.44.150 5.44.160 5.44.165 5.44.170 5.44.172 5.44.173 5.44.175 5.44.150 5.44.190 BUSINESS LICENSES AND REGULATIONS Surety Bonds. Protection of City Against Liability. Inspection of Property and Records. Operational Standards. Miscellaneous Provisions. Adoption of Rules and Regulations by the City Council. Application for Franchise. Application Fee. Effect of Annexations. Effect of Preemption. Franchise Renewal. Violations. 5.44.010 Definitions. For the purpose of this chapter, the following terms, phrases, words and their derivations 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. (a) CITY. The term "City" shall mean the City of Newport Beach in present incorporated form or in any later recognized, consolidated, enlarged or reincorporated for,.i. (b) :COUNCIL. The term "Council' shall mean, the present govern- ing body of the City, or any future board constituting the legislative body of the City. (c) PERSON. The term "person" shall mean any individual, firm, partnership, association, corporation, company or organization of any kind. (d) GRANTEE. 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) COMMUNITY ANTENNA TELEVISION. The term "Communi- ty Antenna Television System" or "CATV" system shall mean a system of antennae, coaxial cables, wave guides, poles, wires, underground conduits, manholes and other conductors, equipment or facilities designed, con- structed or used for the purpose of providing television, radio or other service by cable or through its facilities as herein contemplated. CATV' shall not mean or include the transmission of any special program or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as pay television.' (f) SUBSCRIBERS. The term. "subscribers" shall mean any person or entity receiving for any purpose the CATV service of the grantee herein. (g) GROSS A.r'NUAL RECEIPTS. The term "gross annual receipts" 120 -2 trev'"M Beech amen i k COMMUNITY ANTENNA TELEVISION 5.44.020- 5.44.030 shall mean any and all compensation in the form of service receipts, including initial installation charges, indirectly from subscribers or users in payment for ceived within the City. gross rental and /or' received directly or CATV services rem Gross annual receipts shall not include any taxes on services furnished by the grantee imposed directly on any subscriber or used by any city, state or other governmental unit and collected by the grantee for such governmental unit. (h) FRANCHISE AREA. 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 enlarge- ments thereof and additions thereto. (Ord. 1178 a 1; September 12, 1966; prior Ord. 1153 § 6950; April 11, 1966). 5.44.020 franchise to Opcmte. A franchise to construct, operate 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 provide such system pursuant to the terms and provisions of this chapter. Such a franchise shall not be exclusive, 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. (Ord. 1153 6 6951; April 11, 1966). 5.44.030 Uses Permitted. Any franchise granted pursuant to the pro- visions of this chapter shall authorize and permit the grantee to en ne 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, ;:pon. across and along any public highway, street, alley, public way or puoiic place, such poles, wires, cable, conductors, ducts, conduits, vaults, man- holes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and in addition, So :o use, operate and provide similar facilities on properties rented or leaSCd from other persons, firms or corporations including, but not limited :a. a public utility or other grantee franchised or permitted to do business m the City of Newport Beach. The grantee shall have the authority to promulgate such rules. r. lations, terms and conditions governing the conduct of its business as sra.; be reasonably necessary to enable it to exercise its rights and perfor= ;<s obligations under the franchise, and to insure an uninterrupted serv:ae to each and all of its customers; provided, however, that such rules, ree :.a- 120-3 (Newport s..0 ur.►:r»> 5.43.035 BUSINESS LICENSES AND REGULATIONS tions, terms and conditions shall not be in conflict with the provisions hereof or of the laws of tic 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 direc- tion of the City and at the expense of grantee. (Ord. 1178 ¢ 2; September 12,1966: Ord. 1153 § 6952; April 11, 1966). 5.3 4.035 Regulatiou of Rates and Service. (a) The City Council shall at all 'mss and from time to time during the term of any franchise granted hereun have the power to and shall adopt and enforce, and,girantee shall conf in to, rules and regulations of the Council governing estab- lishing yeas able rules, regulations, and standards of perf ce per tailing to the s ter of grantee. (b) At the ti a of the granting of any franchise reunder, the City Council shall estab ' h or approve all rates and arges, allowable to grantee, including but of limited to all such rates nd charges for installa- tion of equipment, sery a charges for all classifications of service, in- eluding additional conncc ions at one location and any other rates or ` charges of grantee to subsc 'hers; and no-'such rates or charges shall be changed at any time after the ranting yf�a franchise, except by authority of the Council, and upon writt regpest of the grantee; provided, that prior to authorizing the change o aiiy rates or charges of grantee to sub- scribers, at any time after the gra g of such franchise, the Council shall first pass its resolution of intention" o do so, describing and stating any rates or charges to be changed; the re ons of the Council therefor, fixing a day, hour and place cert4a when a where any persons havi g any interest therein may appear' before the. ncil and be heard and directing the City Clerk to publish said resolution at east once, within fifteen (15) days of the passage thgr'eof. The City Clerk all cause such resolution to be published in a neVpaper of general circulate within the City, and the same shall be published and a copy thereof shall mailed to any grantee hereunder at leasf ten (10) days prior to the dat specified for hearing thereon. At the' time set for such hearing, or at any 'ournment thereof. the Council skill proceed to hear and pass on all present' 'ons made before it, and thc�ccision of the Council thereon shall' be fins nd conclusive. If the Council shall find that the changing of any rates charges of grantee" to subscribers will not be detrimental or injurious to a best in teresfs and welfare of the subscribers and of the City, then Council r9al, by resolution, authorize the change of any rates or charges of grantee .fo subscribers as shall be deemed reasonable by the Council in the prem- ises; and such resolution shall thereupon become and shall be a part of 120-4 COMMUNITY ANTENNA TELEVISION 5.44.035 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, amplifier;, appliances, attachments and other property as may be necessary and appur- tenant 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, regula- tions, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable it to exercise its rights and perform its obliga- tions under the franchise, and to insure an uninterrupted service 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. (Ord. 1178 § 2, 1966: Ord. 1153 § 6952, 1966). 5.44.035 Regulation of Rates and Service. (a) The City Council shall, at all times and from time to time during the term of any franchise granted hereunder, have the power to and shall adopt and enforce and Grantee shall conform to rules and regulations of the Council governing and establishing reasonable rules, regulations and standards. of performance pertaining to the system of Grantee. (b) The rates and charges for those services included under the defmi- tion "Non Basic Services" and "Basic Subscriber Services" as defined herein shall not require City Council review and approval. The Grantee shall, . however, provide the City with sixty (60) days' prior written notification of any new rates or charges associated with "Non Basic Services" or `Basic Subscriber Services" to be provided within its franchise area. (Ord. 85 -22 § 2, 1985: Ord. 1890 § I (part), 1981: Ord. 1178 § 3, 1966). 120-5 (Newport Beach 10.85) COMMUNITY ANTENNA TELEVISION 5.44.040- 5.44.050 any franchise granted hereunder and affected thereby. (Ord. 1178 i 3; September 12, 1966) x: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 (20) years following the date Fe gt- ance of such franchise by the grantee or renewal 'thereof. ch franchise may be terminated prior to its date of expiration b ity Council in the event that said Council shall have found, afte irty (30) days' notice'ef proposed termination and public hearin that (a) the grantee has f iled to comply with any provision of th" chapter, or has, by act or omiss n, violated any term or condition of i ranchise or permit issued under this hapter; or (b) any provision of chapter has become invalid or unenfor eable, and the Council further f' ds that such provision constitutes a consi ration material to the gran f said franchise; or (c) the City acquires the CATV property of grant . (Ord. 1171 3 4; Septem- ber 12,1966: prior Ord. 153 3 6953; April 11 966). 5.44.050 Franchise P ent. (a) of any franchise granted rsuant to upon acceptance of such fr hise a fi mined or approved by the City ouncV (b) ANNUAL FRANCHISI der this chapter shall pay annc franchise a fixed percentage o from subscribers within the ty percent 3e and shall be stat e ranchise'by specifyin such franchise. EPTANCE FEE. The grantee >s chapter shall pay to the City certain in an amount to be deter- E. The grantee of any franchise un- to the City during the life of such ross receipts of the grantee derived •h percentage shall be at least three an11by the City Council for the life of ge in the ordinance granting the The grantee shall a with the City, hir expiration of any call year during wht h a financial stateme prepared by a certifie in detail the gross nual receipts, as defined cessors and assi a, during the preceding cal( duty of grantee pay to the City, within ten ( filing such sta ment, any unpaid balance for by such state ent. thirty (30) days after the such franchise is in force, public accountant showing erein, of grantee, its suc- n ar year. It shall be th 10 days after the time for the alendar year covered In the ent that the above payment is not receive$ by the City wit h.n the specifi d time, grantee shall pay to the City a pen y of two percent (27r) pe month on the unpaid balance in addition thereto. In ny year or portion thereof commencing at the co elusion , f :he first car that service is provided during which payments }o graira inst lation and services amount to less than Fifteen Hundred D..::ary ($ ) per month, grantee shall pay to the City a minimum amour.; of enty -five Dollars ($25) per month. if' ( (Nespon BWh 1I u. ") • 5.44.060 BUSINESS LICENSES AND REGULATIONS' The right is reserved to the City of audit and recomputation of any and all amounts paid under this chapter, and no acceptance of any pay- ment shall be construed as a .elease or as an accord art - .atisfactinn of any claim the City may have for further or additioaai : s. w �,a�:,;'.,- uo,aez this chapter or for the performance of any obligation thereunder. In the event of any holding over after expiration or other termination of said franchise, without the consent of the City, the grantee shall pay to the City damages of not less than twenty percent (20%.) of its gross profits during said period. (Ord. 1178 F 5; September 12, 1966: prior Ord. 1153 ,.§ 6954; April 11, 1966). 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 specifications of the City heretofore or here- after enacted or established, 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 reason- able 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, 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 rr.•; sired 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 gov- ernmental agencies when acting in a governmental or proprietary capacity, or any other structures or public improvements; provided, however, the grantee shall in all cases have the privileges and be subject to the obliga- tions to abandon any property of the grantee in place, as provided in Sec- tion 15.44.100 hereof. 120-6 (Newport Beath 11115166) COMMUNITY ANTENNA TELEVISION 5.44.060 (f) Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments, alterations or installations, the grantee shall do so at such time as will cause the least amount of incon- venience to its customers, and unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to its cus- tomers. (g) Any such franchise shall be a privilege to be held in trust by the original grantee: It cannot in any event be sold, transferred, leased, as- signed or disposed of, in whole or in part, either by forced or involuntary sale, merger, consolidation or otherwise, without prior consent of the Coun- cil expressed by resolution, and then only under such conditions as may ba therein prescribed. The grantee shall file with the Council within thirty (30) days after any sale, transfer.%assignment, or lease of the franchise or any part thereof, or any of the rights or privileges granted thereby, written evidence of the transaction certified to by the grantee or its duly authorized officers. The proposed assignee must show financial responsi- bility and must agree to comply with-10 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. (h) 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. U) Any right or power in, or duty impressed upon any officer, em- ployee, 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. (j) 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. (k) Any such franchise granted shall not relieve the grantee of any obligation involved is obtaining pole space from any department of the City, utility company, or from others maintaining poles in streets. (1) Any franchise granted hereunder shall be in lieu of any and all other rights, privileges. powers, immunities, and authorities owned, pos- sessed, controlled, or exercisable by grantee, or by any successor to any interest of grantee, of or pertaining to the construction, operatics. , r 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, immuni;;,�s, and authorities within the City, to the effect that, as between grantc.. .oa d the City, any and all construction, operation and maintenance by .,;.y grantee of any CATV system in the City shall be, and shall be d r.:.; d and construed in all instances and respects to be under and purs:p;.c rn said franchise, and not under or pursuant to any other right, pric ;:, tir. 120 -7 (Newport Reach f: 1 w) 0 i 5.1.1.070 - 5.44.080 BUSINESS LICENSES AND REGULATIONS power, immunity, or authority whatsoever, in lieu of all of which is and shall be granted any franchise hereunder'. (Ord. 1153 $ 6955; April 11, 1966). 144.1110 Rights Rewwrved to the City. (a) No frai,:).wt 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 resolu- tion 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 any 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. 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 adiust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provisions of this chapter. (Ord. 1153 § 6956; April 11, 1966). 5.44.080 Permits, Installation and Service. (a) Within thirty (30) days after acceptance of any franchise the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business," including but not limited to any utility joint use attachment agreements, microwave carrier licenses; and any other permits, licenses, and authorizations to be granted by duly con- stituted regulatory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities. 120-8 (Newport Bw h 11/151") • .® COMMUNITY ANTENNA TELEVISION 5.44.090 - 5.44.100 ® (b) Within ninety (00) days after obtaining all necessary permits, licenses and authorizations, grantee shall commence construction and in- stallation of the CATV system. (c) Within one hundred eighty (180) days after the commencement of construction and installation of the system, grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence to the end that service shall be made available to all potential subscribers throughout the entire franchise area within such time and upon such conditions as shall be determined by the City Council. (d) Failure to do any of the foregoing shall be grounds for termina- tion of the franchise. (c) The City Manager may extend the time for obtaining necessary permits and authorizations and for beginning construction and installation for additional periods in the event the grantee, acting in good faith, expe- riences delays by reason of circumstances beyond his control. (Ord. 1178 3 6; September 12, 1966: prior Ord. 1153 3 6957; April 11, 1966). 5.44.090 Location of Grantee's Properties. (a) Any pales, wires, cable lines, conduits, or other properties of the grantee to be constructed or in- stalled in streets, alleys or other public places shall be so constructed or installed only at such locations and in such manner as shall be 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 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 ap- proval of the Director of Public Works of the City. (c) In those areas and portions of the City where both the transmis- sion and distribution facilities of the public utility providing telepiurne service and those of the utility providing electric service are undergmun.d or hereafter may be placed underground, then the grantee shall I:K,w+. construct, operate, and maintain all of its transmission and distr:b% ;.m facilities underground. Amplifiers in grantee's transmission and d:,• .:.::- tion lines may be in appropriate housings upon the surface of the .:A as approved by the Director of Public Works of the City. (Ord. 1 ::Z > 6958; April 11, 1966). 5.44.100 Removal or Abandonment of Property of Grantee. (a event that the use of any part of the CATV system is discontrr.: : any reason for a continuous period of three (3) months, or in t::. ® such system or property has been installed in any street, alley or , r c place without complying with the requirements of its franchise nance, or the franchise has been terminated, cancelled or has exp:r-,. grantee shall promptly, upon being given thirty (30) days' notice. rr:... ve 120-9 (Newport 8�i:: J »1 0 0 5.44.110—,5.41.120 BUSINESS LICENSES AND REGULATIONS 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. The City Manager may extend such time not to exceed an additional thirty (30) days. (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. (Ord. 1153 6959; April 11, 1966). 5.44.110 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 satis- faction 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. (Ord. 1153 S 6960; April 11, 1966). 5.44.120 Surety Bonds. (a) BOND FOR PROTECTION OF CITY. The grantee shall, concurrently with the filing of an accepance 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 Attorney, in the amount of one 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 grantrn hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any dam- ages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or aban- donment 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 obliga- 120 -10 (Newport Bush 11116166) s 0 COMMUNITY ANTENNA TELEVISION 5.44.130 ® tion for the duration of such franchise or any renewal thereof, and there - after 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 pro- vide 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 pro- vision of any agreement or undertaking made between grantee and any 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 attorney's fees and costs of any action or proceeding; and said condition shall be a continuing obligation during the entire term bf such franchise and thereafter until grantee shall have satisfied in full any and all obligations' to any sub- scriber which arise out of or pertain to any such agreement or under- taking. (Ord. 1178 x 7; September 12, 1966: prior Ord. 1153 a 6961; April 11,1966). 5.44.130 Protretion of City Against Liability. (a) INDEMNIFICA- TION. The Grantee shall indemnify and hold harmless the Cite. 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. an:c. out of or related to the exercise or enjoyment of any CATV. franchise granted pursuant to the provisions of this chapter, including claims. de- mands, actions, suits, liabilities and judgments based upon any infr.hc- ment or violation or alleged violation of any copyright; and Grantee shall reimburse the City for any costs and expenses incurred by City in de- fending against any such claim or demand or action, including any at: or- ney fees, accountant fees, expert witness or consultant fees, court cvszs. per diem expense, travel and living expense; and Grantee shall upon de- mand of the City appear in and defend any and all suits, actions or other 120-11 4 (Newport He ch . 1 0 5.44.140 BUSINESS LICENSES AND REGULATIONS legal proceedings whether judicial, quasi- judicial, administrative or other- wise, 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 frar- chise, 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 written notice of its intentions to do so. (b) COMPREHENSIVE LIABILITY INSURANCE.. Upon accept- ance 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 pri- mary coverage for the City, its officers, boards, commissions, agents and emL:oyces, 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 a 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, as additional insured and shall con- tain 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 policies of insurance as required in this subsection has been delivered to the City Clerk.. (Ord. 1198 4 1; December 27, 1966: prior Ord. 1153 ; 6962; April 11, 1066). 5.44.140 in lmetion of Property and Records. (a) At all reasonable times, the grantee shall permit any duly authorized representative of the City to examine all property of the grantee, together with any appurte- nant property of the grantee situated within or without the City, and to examine and transcribe any and all maps and other records kept or main- tained 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 :raps or records are not kept in the City, or upon reasonable request made available in the City, and if the City Manager shall deter- mine that an examination thereof is necessary or appropriate, then all travel and maintenance °xpense necessarily incurred in making such ex- amination shall be paid by the grantee. 120 -12 (NeWPOM Heath 1/16167) COMMUNITY ANTENNA TELEVISION 5:44.150—.5.44.160 (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. (c) The grantee shall, at all times, make and keep in the City full and complete plans and records showing the exact location of all CATV system equipment installed or in use in streets, alleys and public places in the City. The grantee shall file with the Director of Public Works, on or before the last day in March of each year, a current set of maps drawn to scale showing all CATV system equipment installed and in place in streets, alleys and other public places of the City-during the previous year. (Ord. n53 a 6963; April 11, 1966). 5.44.150 Operational Standards. The CATV system shall be installed and maintained in accordance with the highest and best accepted stand- ards of the industry to the effect that subscribers shall receive the highest possible service. The following minimum standards shall be required: (a) The system shall be installed using all band equipment capable ® of passing the entire VHF and FM spectrum, and it shall have the further capability of converting UHF for distribution to subscribers on the VHF band. (b) The system, as installed, shall be capable of passing standard color TV signals without the introduction of material degradation on color fidelity and intelligence. (c) The system and all equipment shall be designed and rated for 24 -hour per day continuous operation. (d) The system shall provide a. signal level of 2000 microvolts at the input terminals of each TV receiver. (e) The signal to noise ratio shall be not less than 46 decibels. (f) Hum modulation of the picture signal shall be less than five per- cent (5%p). (g) The system shall use components having a VSWR of IA or less. (Ord. 1198 : 2; December 27, 1966: prior Ord. 1178 3 8; September 12, 1966: Ord. 115316950; April 11, 1966). 5.44.160 111iscallaneous Provisions. ..(a) All matters herein provided to be filed with the City shall be filed with the City Clerk. (b) The rate schedule for any connection fee or monthly service charge, or charge thereto, to subscribers must have written approval of the City Council. (c) The grantee must pay to the City a sum of money sufficient to reimburse it for expenses incurred by it in publishing legal notice and ordinances in connection with the granting of a franchise pursuant to the 120 -13 (Newport aewN i tiS:C) 0 0 144.165 BUSINESS LICENSES AND REGULATIONS provisions of this chapter; such payment to be made within thirty (30) days after the City shall furnish such grantee with a written statement of such expense. (d) The grantee shall maintain a toll ° free telephone number within the City of Newport Beach so that CATV maintenance promptly available to subscribers. (e) No person, firm or corporation in the existing service 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 connection fee or the applicable monthly serv- ice charge, (f) The City Council may, upon finding that extraordinary circum- stances applying to the land, buildings or CATV system do exist, waive any or all of the requirements of this chapter. (g) Any CATV system existing in the City prior to the adoption of this chapter shall, within sixty (60) days after the effective date of this chapter make application for a franchise. Said system may continue its existing operations, but may not enlarge or expand same without first securing a franchise from the City. (h) 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. 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. (Ord. 1178 a 9; September 12, 1966: prior Ord. 1153 16950; April U, 1960). 5.44.165 Adoption: of Rules and Regulations by the City Council. (a) POWER TO ADOPT RULES AND REGULATIONS. The City Council is authorized to adopt rules and regulations consistent with the provisions of this chapter 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 the provisions of this chapter. (b) PROCEDURE FOR ADOPTING RULES AND REGULATIONS. The City Council may adopt rules or regulations or amend, modify, delete or otherwise change such rules and regulations previously adopted in the following manner: 1. The City Council shall pass a resolution of intention describing the rules or regulations to be adopted, amended, modified, deleted or otherwise changed and set a day, hour and place for public hearing. Such resolution shall direct the City Clerk to publish the same at least once within fifteen (15) days of the passage thereof. 120-14 (Newport Beach MUM • 0 COMMUNITY ANTENNA TELEVISION 5.44.170 • 2. The City Clerk shall cause such resolution to be published at least once in the official newspaper of the City and shall cause a copy of same to be mailed or delivered to any grantee not less than ten (10) days prior to the time fixed for hearing thereon, 3. At the time for public hearing or at any adjournment thereof, the City Council shall proceed to hear and pass upon such evidence, comments and objections as may be presented. Thereafter, the City Council, by its resolution, may adopt, amend, modify, delete, or otherwise change said rules and regulations. (Ord. 1178 § 10; September 12, 1566). 5.44.170 Application for Franchise. Application for a franchise here- under 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 applicant's 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 pro- posed rates and charges to subscribers for installation and services, and a copy of proposed service agreement between the grantee and its sub- scribers shall accompany the application. (d) A copy of any contract or permit, if existing, between the appli- cant 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 com- pany's or corporation's financial ability to complete installation and opera- tion 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 favor- ably considered, the application submitted shall constitute and form a part of the franchise as granted. Q (h) Prior to the granting of a franchise pursuant to this chapter. the Council shall pass a resolution declaring its intention to grant :.tie 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 120 -15 (Newport B4 h L Wtn 0 • 5.44.172- 5.44.173 -BUSINESS LICENSES AND REGULATIONS granted. Stich 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 there- on. 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 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 con- clusive. Thereafter it may by ordinance grant the franchise on the terms and conditions specified in the resolution of intention to grant same, sub- ject 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. (i) Any franchise issued pursuant to this chapter shall include the following conditions: The CATV system franchise herein, shall be used and operated solely and exclusively for the purpose expressly authorized by ordinance of the City of Newport Beach and no other purpose whatsoever. The inclusion of the foregoing statement in any such franchise shall not be deemed to limit the authority of the City to include any other e reasonable condition; limitation or restriction which it may deem necessary to impose in connection with such franchise pursuant to the authority conferred by this chapter. (Ord. 1153 5 6966; April 11, 1966). 5.44.172 Application Fee. Each application 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. (Ord. 1178 ; 11; September 12, 1966). 5.44.173 Effect of Annexations. (a) In the event any new territory shall become annexed to the City, the City Council shall determine which grantee or 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 re- 120-16 OUNPOK se"h 1/15 /M U 0 COMMUNITY ANTENNA TELEVISION 5.44.175 served 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 regula- tions 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 annually to the City three per cent (3%) of the gross receipts derived from its operations within the annexed territory. (Ord. 1198 13 -, Decem- ber 27, 1966: prior Ord. 1178 1 12; September 12, 1966). 5.44.175 Effect of Preemption. In the event the Federal Communica- tions Commission or the Public Utilities Commission of the State of Cali- fornia or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of any fran- chise hereunder, then to the extent such jurisdiction shall preempt or preclude the exercise of like jurisdiction by the City, the jurisdiction of the City shall, to the extent so preempted or precluded, cease and no longer exist; provided, however, that the preemption or preclusion of the exercise by the City of any of its police power shall not diminish, impair, alter, or affect any contractual benefit to the City nor any contractual obligation of the grantee under any franchise issued hereunder; and in this respect, any and all minimum standards governing the operation of grantee and any and all maximum rates, ratios, and charges specified herein or in any franchise issued hereunder, existing now and at any time in the future, including such time as any paramount jurisdiction shall pre- empt or preclude that of the City, and any and all rights, powers, priv- ileges, and authorities of the City, to determine, establish, or fix any of the same, are each and all hereby declared by the City and by any grantee accepting any franchise hereunder to be contractual in nature and to be for the benefit of the City and all subscribers situated therein, and the agreement of grantee to accept and conform to such standards, rates. 120.16a oxc.von B. h va,.Cn ratios, and charges is hereby declared by, the City and by any grantee ac- cepting any franchise hereunder to be of the most material and essential consideration for the granting of such franchise, in the absence of wWc­ In whole or In part, the City would not grant such franchise. (Ord. 1178 1 13; September 12, IM). 5ALI30 Fftachiss Resswal. Any franchise granted under this chapter is renewable at the application of the grantee, its lawful successors or W signse for such period of time as the Council and the applicant may agree upon by negotiation. (Ord. 11W I SM; April 11, IM) - ii. LM Vlokdons. (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 this 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 owner, to wilfully tamper with, remove or injure any cables, Wires or equip- ment used for distribution of television signals, radio signals, pictures, pro- grame or sound. (c) From and after the effective date of this chapter, it shall be un- lawful for any person to construct, install or maintain within any public street in the City or within any other public property of the City or within any privately owned area within, the City which has not Yet become & public street but is designated, or delineated an a proposed public street on any tentative subdivision map approved by the My any equipment or facil- ities for distributing any television signals or radio signals through a CATV system Unless IL franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions Of this cbjLpter and graces such franchise, in in fun force and effect. (Ord. I= 6968; April 11, 1966). Sections: 5.46.010 5.46.OW 5.4&030 5.46-040 5.45.050 Chapter 5.46 REGULATION Permfit Required. Zzoeptions. Application for Permit: Issuance Of Permit. Notice of Approval or Disapproval. 120-17 'yC T tl C. M.I. -M. ILL, THS:aem 12/20/66 RESOLUTION NO_ 6488 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO HOLD A PUBLIC HEARING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF CERTAIN RULES AND REGULATIONS GOVERNING THE OPERATION OF COMMUNITY ANTENNA TELEVISION SYSTEMS WITHIN THE CITY WHEREAS, Section 5.44.165 of the Newport Beach Municipal Code relating to community antenna television systems provides that the City Council may adopt rules and regulations consistent.with the provisions of Chapter 5'..44 of the Municipal Code and that such rules and regulations shall apply to and shall .govern the operations of the grantee of any community antenna television franchise; and WHEREAS, the City Council has considered a report dated November 8, 1966 prepared by Lebell Consulting Engineers & Scientists concerning community antenna television service in the City of New- port Beach; and WHEREAS,. the City Council desires to adopt .. certain recom- mendations contained in said report and to incorporate the same as a part of the rules and regulations applicable . to the operations of community antenna television systems in the City; NOW, THEREFORE, ..BE.IT RESOLVED as follows* if A public hearing shall be held on the 9th day of ;r 1967, in the City Council Chambers, City Hall, 3300 West Newport Boulevard, Newport Beach, California, for the purpose of consider- ing the adoption by the City Council of the following proposed rules and regulations concerning the operations of community antenna television systems within the City of Newport Beach: Rule 1. Customer Complaint Procedure The grantee of any CATV franchise that provides service to subscribers within the City shall establish procedures which insure prompt determination of the cause of reception problems brought to the attention of the grantee by subscriber complaints.. Any such grantee shall have primary responsibility for taking S appropriate corrective action whenever faulty or defective performance is detected in any part of the system between the antenna to a subscriber's television receiver. A grantee shall not refer a subscriber to his local television repair service upon first receiving a complaint unless it cleza�m;e appears that the cause of the reception problem is attrib- utable to the subscriber's television receiver. Rule 2. Interference with CATV Reception by Ambient Signals If a subscriber experiences interference caused by ambient signals after connection of his television receiver with a CATV system operating under a City Zranchise, the grantee of such franchise shall be obligated either to provide technical cor- rective measures to eliminate the interference or to discon- nect the television receiver and refund the installation costs to the subscriber. Rule 3. CATV System Performance. Monitoring In order to insure maintenance of required operating standards each grantee of a CATV franchise shall perform or . cause to be performed the following tests and shall furnish the City Manager with certified written reports of the results: (1) Monthly Tests The following tests shall be performed at .five sep- arated geographical points within the franchise area: (a) :Signal strength At the input to the matching transformer of the television receiver (75 ohm impedance), the signal level shall be measured at the picture carrier mid - frequency of each television channel with a field strength meter (Jerrold Model 704 -B or equal).. The signal level for each channel shall be a minimum of 1000 microvolts. (b) Visual Degradation An appropriate test pattern from a test gener- ator shall be inserted at the antenna output and the picture on the television receiver shall be checked 2. visually for ringing, smear, s treaking, hum, reflections, loss of resolution or contrast and beats from spurious or adjacent channel signals. (2) Semi - Annual Tests The following tests shall be conducted at the sub- .scriber end of all system trunk lines to provide a comar_- hensive test of whether the system is continuing to meet ' original standards., (a) Discribution system frequency response, By means of a wide band sweep generator (Jerrold Model 900 -B or equal), a broad band signal covering. the VHF television band shall be inserted at the input to the first system trunk amplifier with a signal amplitude level equal to the average levels .introduced when fed from the antenna through the head end signal processing equipment. With a broad band detector (Jerrold Model D Series or equal) and oscilloscope, the frequency response at the subscriber end of any trunk .line shall be checked. The frequency response shall be within ± 3db. (b) Signal to noise ratio At the input to each television channel head end signal.. processor, .a continuous wave signal shall be inserted with one (1) millivolt RMS amplitude at each , channel picture frequency. The signal level at the end of any trunk line shall then be checked with a Field Strength Meter tuned to each mid- channel picture carrier in turn. Then, with no input signal, the field strength test shall be repeated. During the test no channel must produce a difference in readings between signal and no signal conditions of less than 46 decibels. (c) AC (hum) modulation At the input to each television channel head end signal processor, a CW signal with an amplitude equal to the average antenna output operating level. and a frequency 3. II equal to the picture carrier shall be inserted. Then, by means of an RF detector and oscilloscope used at the subscriber end . of any trunk line, the average DC level shall be checked. The peak to peak variation of the dis- played signal must be less than five percent (5%) of the DC level. (d) Inter - channel distortion While all other channels are operating normally, the antenna output from one channel shall be disconnected and an unmodulated RF signal at the carrier frequency shall be substituted in that channel input. A blank white pic- ture must appear on the screen of any television receiver or monitor turned to said channel, with no visible nter- ference components. This test shall be repeated for each channel in ! turn. The full costs of the foregoing tests shall- be borne by i the franchise grantees for their respective systems, including I I reimbursement to the City for the cosy of providing an inspector I' of the City's choice to witness the conducting of the tests. If deviations from the required standards are disclosed by the tests, the grantee shall take immediate action to correct I any such deviations and complete the corrective measures within ten (1'0) days unless additional time is allowed by the City Managerpur- suant to a written request from grantee. II: The City Clerk s directed to publish this resolution once in the official newspaper of the City within fifteen (15) days followings its adoption and to cause a copy hereof to be mailed to all franchise grantees and applicants for franchises at least ten (10) j days prior to the time fixed for hearing thereon. III f At the time fixed for hearing the City Council shall 4. j proceed to hear and pass upon such.evidence, comments and objec- tions as may be presented.. Thereafter., the City Council, by resolu- tion, may proceed to adopt said rules and regulations in the form proposed herein or in such modified form as the Council may deem desirable. ADOPTED this 27th day of December 1966 vice Mayor ATTEST! t ity'Cle 5. ORDINANCE NO. 1197 / (as amended by Ordinance No. 1365 and Ordinance No, 86 -17) AN ORDINANCE OF THE CITY OF NEWPORT BEACH GRANTING TO WARNER BROS, TV SERVICES, INC. A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE A COMMUNITY ANTENNA SYSTEM WITHIN CITY. The City council of the City of Newport Beach does ordain as follows: SECTION 1. Definitions. Wherever in this ordinance the following words or phrases are used, they shall have the respective meanings assigned to them in the following definitions; and words or phrases not defined in this section which are defined in any franchise document shall have the same meaning in this ordinance assigned to then in such franchise document, unless the context in which they are used shall clearly indicate a different meaning: (a) "City" shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. (b) "Council" shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) "Person" shall mean any individual, firm, partnership, association, corporation, company or organization of any kind. (d) "Grantee" shall mean Newport Beach Cablevision, Inc., its employees, agents, successors and assigns. (e). "Community Antenna Television System" or "CATV System" shall mean a system of antennae, coaxial cables, wave guides, poles, wires, underground conduits, manholes and other conductors, equipment or facilities designed, constructed or used for the purpose of providing television, radio or other service by cable or through its facilities as herein contemplated. CATV shall not mean or include the transmission of any special program • 9 or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as pay television. (f) "Subscribers" shall mean any person or entity receiving for any purpose the CATV service of the Grantee herein. (g) "Gross Annual Receipts" shall mean any and all compensation in the form of gross rental and /or service receipts, with the exception of initial installation charges, received directly or indirectly from subscribers or users in payment for CATV services and shall also include all revenues received for advertising. Gross annual receipts shall not include any taxes on services furnished by the Grantee imposed directly on any subscriber or used by any city, state or other governmental unit and collected by the Grantee for such governmental unit. (h) "Franchise Area" shall mean the territory within the City throughout which Grantee shall be authorized to construct, maintain and operate its system and shall include any enlargement thereof and additions thereto. (i) "Franchise Documents" shall mean and shall include all of the following: Newport Beach. (1) Article XIII of the Charger of the City of (2) Chapter 5.44 of Title 5 of the Newport Beach Municipal Code as the same now exists or as it may hereafter be amended. (3) Any and all rules and regulations governing the operation of CATV Systems within the City of Newport Beach which are adopted by the City Council. (4) The written acceptance of CATV Franchise filed with the City by the Grantee. (j) "Street" shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, 2 • 9 path, alley, court, sidewalk, parkway, or right of way whether or not improved, now or hereafter existing as such throughout the City. SECTION 2. Grant of Franchise. There is hereby granted to Warner Bros. TV Services, Inc., a Delaware corporation, by the City a nonexclusive franchise to construct, erect, operate and maintain, in„ upon, along, across, above, over and under the public streets, alleys, public ways and public places, now or in the future dedicated for public use in the City, poles, wires, cables, underground conduits, manholes and other television conductors, appurtenances and fixtures necessary or convenient for the maintenance and operation in the City of a community antenna television system to transmit television and FM radio signals, within the franchise area described as follows: All of the territory within the boundaries of the City of Newport Beach as such boundaries exist on the effective date of the ordinance, with the exception of the following territory: That portion of Blocks 51, 55, 56, 57, 92, 93, and 96 of Irvine's subdivision in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 1, Page 8`8 of Miscellaneous Record Maps in the office of the County Recorder of said County, described as follows: Beginning at the West corner of said Block 96; thence Southeasterly along the Southwesterly line of said Block 96 to the Easterly corner of Tract No. 673 as per map recorded in Book 20, Pages 17 and 18 of Miscellaneous Maps, said corner being also an angle point in the boundary of the Harbor View Annexation to the City of Newport Beach as established by City Ordinance No. 896; thence Northeasterly along said boundary to an angle point in the boundary of Annexation No. 57 to the City of Newport Beach as established by Resolution No. 6203, dated August 9, 1965, of the City of Newport Beach Council and amended by Resolution No. 6247, dated November 8, 1965, said point being the Southwesterly terminus of that certain course described therein as "North 440 56' 20" East 114.30 feet "; thence generally Northeasterly and Northwesterly along said boundary to the Easterly right of way line of MacArthur Boulevard, 100.00 feet wide as described in the deed recorded in Book 1047, Page 557 of Official Records; thence generally Northerly along said Easterly right of way line being also the boundary of Annexation No. 50 to the City of Newport 3 • • Beach as established by City ordinance No. 999 to the Southeasterly line of said Block 56; thence Southwesterly along said Southeasterly line being also said boundary of the Annexation No. 50 to the Westerly right of way line of said MacArthur Boulevard; thence Northerly along said Westerly right of way line being also the boundary of the Jamboree Road Annexation to the City of Newport Beach as established by City Ordinance No. 840 to the center line of Palisades Road, 80.00 feet wide, as described in the deed recorded in Book 1677, Page 98 of Official Records; thence Westerly and Northwesterly along said center line to the center line of Jamboree Road, 132.00 feet wide, as described in the deed recorded in Book 6135, Page 155 of Official Records; thence generally Southwesterly along said center line of Jamboree Road to the center line of State of California Highway Route ORA. 60 -B, 100.00 feet wide, as described in the deed recorded in Book 487, Page 3 of Official Records; thence Easterly along said State Highway center line to the Southwesterly line of said Block 55; thence Southeasterly along said Southwesterly line and the Southwesterly line of said Block 93 to the point of beginning. The CATV system herein franchised shall be used and operated solely and exclusively for the purposes expressly authorized by ordinance of the City of Newport Beach and no other purposes whatsoever. All of that certain parcel of land situated) in unincorporated territory of the County of Orange, State of California, being a portion of Block 51 of Irvine's Subdivision as shown on a map recorded in Book 1, Page 88 of Miscellaneous Record Maps, Records of said County, said parcel being more particularly described as follows: Beginning at the most easterly corner of Lot 147 of said Block 51, said corner also being the most easterly corner of Tract No. 1499, as per map recorded in Book 44, Page 47 of Miscellaneous Maps, Records of said County; thence along the northeasterly line of said Block 51, S 49 21' 45" E 1275.93 to an intersection with the northwesterly line of "Acacia Street Annex" per City of Newport Beach Ordinance Number 837; thence along said northwesterly line S 40 38' 15" W 1266.69 feet to a point on the 2000 foot radious curve in the southerly line of the deed to Newport Harbor Union High School District recorded July 1, 1965 in Book 7578, Page 670, of Official. Records of said County, a radial line to said point bears N -0 27' 40" E;. thence westerly along said curve and southerly line through a central angle of 12 20' 35" a distance of 430.85 feet to the most easterly corner of that certain parcel of land described as "Servient Tenament" in Exhibit "B" of a deed 4 9 recorded April 22, 1975 in Book 11382, Page 1598 of Official Records of said County, a radial to said corner bears N 11 52' 55" W; thence along the southerly line of said deed 3 57 46' 05" W 77.81 feet; thence S 64 53' 40" W 161.27 feet; thence S 64 27' 03" W 181.82 feet; thence S 67 011•4.1" W 381..32 feet; thence S 75 13' 58" W 102.44 feet; thence S 12 39' 46" W, 17.73 feet to the beginning of a non - tangent curve concave northerly and having a radius of 1562.00 feet, a radial to said point bears S 30 22' 27" E; thence westerly along said curve through a central angle of 9 20' 53" a distance of 254.85 feet to a point on the southeasterly prolongation of the southwesterly boundary of Tract 1501, as per map recorded in Book 50, Page 16 of Miscellaneous Maps, Records of said County; said line also being the northeasterly line of the south one quarter of said Block 51 and the northeasterly line of the "Upper Bay Annexation" per City of Newport Beach Ordinance Number 748; thence along said line N 49 21' 54" W 494.39 feet to the southerly corner of said tract, said corner also being the southerly corner of said Lot 147; thence along the southeasterly line of said Lot 147, N 40 37" 27" E 2640.31 feet to the point of beginning. EXCEPTING from the hereinabove described parcel, that portion offered for dedication and accepted by the County of Orange by Instrument No. 85- 138036 and Instrument No. 85- 138037 both of Official Records of said County. (As amended by Ordinance No. 86- 17.) SECTION 3. Nonexclusive Grant. The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use of said streets, alleys, public ways and places to any person at any time during the term of this franchise. SECTION 4. Term of Franchise. The term of this franchise shall be twenty -five (25) years, commencing on January 27, 1967. 5 • • SECTION 5. Inclusion of Franchise Documents. All of the franchise documents applicable to this franchise are hereby incorporated by reference and made a part of this ordinance. By acceptance of this franchise Grantee agrees (Page 4 Continued) to be bound by all of the terms, provisions and conditions contained in said franchise documents. SECTION 6,. Indemnification of the City. Grantee agrees that it shall indemnify and hold harmless the City, its officers, boards, commissions, agents and employees against and from any and all claims, demands, actions, suits, liabilities and judgments of every kind and nature and regardless of the merit of the same, arising out of or related to the exercise or enjoyment of this franchise by Grantee, including claims, demands, actions, suits, liabilities and judgments based upon copyright infringement; Grantee further afire; =_s that it will reimburse City for any costs and expenses incurred by City in defending against any such claim or claims, including attorneys, fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, travel and living expense; Grantee further agrees that upon demand of the City it will appear in and defend any and all suits, actions, or other legal proceedings whether judicial, quasi - judicial, administrative, legislative, or otherwise, brought by third persons or duly constituted authorities against or affecting the City, its officers, boards, commissions, agents or employees and arising out of or pertaining to the exercise or enjoyment of such franchise, or the granting thereof by the City; the foregoing obligations shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other security required hereunder; provided that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, demand, action or suit for monetary damages without first giving the other ten ('10) days prior written notice of its intention to do so. 5 • SECTION 7. Right of City to Adopt Additional Rules and Regulations. The right is hereby reserved to the City to adopt, in (Page 5 Continued) addition to the provisions contained in this ordinance and in any other applicable ordinances and resolutions, such additional regulations as it shall determine to be necessary or convenient in the exercise of the police power. SECTION 8. Prohibited Activities of Grantee. Grantee shall be prohibited from directly or indirectly doing any of the following: (a) Engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets, radios, and other receiving apparatus, or any part or component thereof. (b) Providing any repair service to its subscribers, for a fee or otherwise, which extends beyond the connection of its service and the determination' by Grantee of the quality of its signal to its subscribers. (c) Soliciting, referring, or causing or permitting the solicitation or referral of any subscriber to any specific named persons, firms or corporations engaged in by the provisions hereof. (d) Transmitting or presenting any programs or events for which a separate and distinct charge is made to the subscribers in the manner commonly known and referred to as "pay television" and the Grantee shall not maintain or operate on any television set a coin box or any other device or means for the collection of money for individual programs. SECTION 9. Transfer of Franchise. This franchise shall not be sold, transferred, assigned, leased or otherwise disposed of in whole or in part by voluntary or involuntary sale, merger, consolidation, or otherwise, without the prior consent of the City Council expressed by resolution, and then upon such terms and conditions as the Council may prescribe. No sale, transfer or assignment shall be effective until R the vendee, assignee or lessee has filed in the office of the City Clerk an instrument, duly executed and approved as to form and content by the.City Attorney, reciting the fact of such transfer, sale, assignment or lease, accepting the terms of the franchise, and agreeing to perform all the conditions thereof, including any additional conditions required by the City Council. SECTION 10. Acceptance of Franchise. This franchise shall not become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk; and such written acceptance shall be in form and substance as shall be prescribed by the City Attorney and shall be and operate as an acceptance of each and every term, condition and limitation contained herein, or otherwise specified by ordinance or resolution of the City Council. Said written acceptance shall be filed by the Grantee not later than 12:01 P.M. of the fifteenth ('15) day next following the date of the adoption by the Council of this ordinance; and, in default of the filing of such written acceptance as herein required, Grantee shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance of any such Grantee shall not be received by the City Clerk, and such Grantee shall have no rights, remedies, or redress in the premises, unless and until the City Council shall, by resolution, determine that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose. SECTION 11. Acceptance Fee. The Grantee shall, upon the acceptance of this franchise, pay to the City, in consideration of the granting of this franchise, the sum of $2,000. SECTION 12. Annual Franchise Fee. The Grantee shall pay annually to the City during the VA life of this franchise for the privilege of operating a CATV system under this franchise the following percentage of gross receipts: Gross Receipts On the first $200,000 On the next $100,000 On the next $100,000 On the next $100,000 In excess of $500,000 Percentage Payable 3% 3-1/2% 4% 0 4 -1 /2g 5% SECTION 13. Effective Date. This ordinance shall become effective 30 days from and after the date of its adoption; provided, however, that the franchise hereby granted shall not become effective unless and until the Grantee files written acceptance thereof in the manner specified in Section to of this ordinance and delivers to the City all bonds and insurance policies required to be furnished in accordance with the requirements of Chapter 5.44 of Title 5 of the Newport Beach Municipal Code. SECTION 14. Publication. This ordinance shall be published once in the official newspaper of the City. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 12th day of December, 1966, and was adopted on the 27th day of December, 1966, by the following vote, to wit: ATTEST: AYES, COUNCILMEN: NOES`, COUNCILMEN: Parsons, Rogers, Forgit, Shelton None ABSENT COUNCILMEN: Cook, Gruber City Clerk M Mayor Marshall t Or 1w, OZ GT'N OP NMIM, .. �,(O k 7 .)"US. TV S!- RVICES TO CONSTRUCT, VAINT.Ull AND r 11-M1,11INZ ci;tl "'T.Ty sysl-T I - hO Ci'"_­ C.Ikjr jc ' of chn City of i +cwpo-t crdain as follows. SECT1.0,-41 1. De f i n. i t-. Uherc,;ar in this ordinance the fnllo-zjinG i7r ;1re LIIS,am d3 thcY 51-all have the r­�Pective meanings assignel tziem in the definitions; and cords or phrases not in, this section are - defined in any fra-chise ., the same -mean4ng in this ordinanc assigned to thv-n in siu.-h fran- chis2 document, unless the context in w1nich they arc used ill clearly indicate a different meanin.,- (a) "City" shall an the City of Newporr Eaach in its Present incorporated foram or in any Later recogmized, con...-Olida.ted, enlarged or reincorporated form. (b J' "Cou-cii" sh-all meen the present governing 1moody of the City, or any futurl. board cans-titutingg the i-agisi-ative body of the City. (c) "Person" Shall mean any individ:_,al, firm, partner- ship, associa L4 0r corporatJon, cormpany or orga.nIzation of any 11cind. (d" "Grantee_" -hall m2an Bros-. TV-Services, Inc.,' a Delaware corpora _i,.n, its em-Dloyei-as, agents. suc­essor3 and assigns, Antenna Television Svstemll or "CATV Sj,sLc-"1" shall_ a slyste-m of ante-nae, con..�,ia.l cables, wave Bli J-des, .1 s, und_---,;::�u aI nd coneuits, Mn 0 s and o`"er 7: - or facilities dcsign�_d, constructed cr- Used conductors, e:7-- .7.D for the providing telrwiszion- radia or oth,�r service by c.a1j_!,_- or its facilitics as harf,.i.n. conLi-a-mplat2d. CAW shall not moi-an f"r inclutej.-_ the transmiiL sion of -.-iv S >cial - p r,,- g r a ra t lC-r* whi.C1 �O tile :r in Elie co=,only kro-,M and r,,--EOrreI to �,-- -..ay !Vision. ( f ) " S-.;i-- sc ri!,-ers " shall mcna any person or cri --i 2iving fOl: P .I-pc:se the CATV service of the Orcentee Cu). --rcss Annu=al R cc eipt:s" shall mie.an and :;ation in tiie :.Cl fo of gross rental and/or service C A - A�,,( luting y t — rec-2i ad C-ctlK fro-'i 0- users in paN,Ypent for CATV Ser-11-1, C eS G L —LL ca—,, ••�- -+�..e .l.ii..a -. G`..0.:_ µ l'.,.Q_. .� C' 1.1 i'..,. .., c:�f. �e r c l._..t C C� c -'. 1... IA7' ' Gross �-nn-�a receipts shall not inclueE any ta;-.es on vices 'Urni Y -- �, - L.,le Gran Lee imccsed dir�ctlly on aro, s;-b- -iber or used by ay c; rv, S I - n I t:�Dte --- other gcvt:r--,e-.,tal un'-f.t and lected by the Grantee for s-ech governmental um.4t. (h) "Fr=chise Areall shall me ;r the territory wit"In the :YL'nr(-'u8bC-ut Granzae shall be authcrized to,com- truct, Lntain and cperate in, system . and shall include any enlargements arcof aind a('MID-ions theretc. Shall mear. and shall 4-n—elude I of the follcqing: Article XIII of the Charter of the City of 5,4-t- of Title 5 of the Neu-po::t 7z--.=,ch s me now exists cr as it may herea-fter be :2Y Any and all rules and regulations governing LI nf CST V SY-sram.s wiLhin the City of Newport -�ieach �-.o-IoptEe- L-y ti-,e City Ccuncil, Cif accc -t7j -e of CATV filed City by Line. Gr,--atec. Shall mean rhie sur.face of -and the s-, ace ,ublic str�:ut read. highway, ftcot-.:ay Inne, /•,� rr LlUj'. C Jli'�, ..'1 (lt?i..i L11IC ,. (: t. l:Fl� , .. i:l Sl ?�. O[ t. J Q7: r , ..arc :{"t.r1t CuCT? `% 2 Glr:' lt: cf_c ranr.hise. d to mi?arner. Pros. TV c e;, Inc., � S h• ^rrby vr. €i'1l'`, , o; m lion by t.h- Cit. non .`;c1',! i �e fry- to cozl ' ..- City . ab �Ve and `ttaintain� Inn llpOn� may: ='�r., C. •.:�:>, :> ib:1 =C amid 1 nd-- th;: public. st :.r•2?tS', alleys, r r+ or in t.7e fi u dedicated for ubl.ic t:se ces, no rs. d dices 2 wires C�il ,eC , underground c:op.duic.sy 5 , on COn.'Ci +_ .. ^.':.s appl^rtenarces and fixtures necesTar`_ ^_Gill "P- n1.Cllt a c antenna and cp rat ,C.t in. she City - -� Cc1eV 1510: :;� 5 "t?^.: to trfia ^ ^. ?'.)li.t tel and t t radio ^e franchise area described as folloias All of the territo.; 4aithin the bcundaries of the C ity of ye�.7or t Beach as such boundaries eais:, or. the 2 is °c` -va date of this ordinance, with the exception Cf the r o - ' .. y� ter- ritor-4 y e The a t ortion of Blocks 51y 555 56y 57 92s 93, an" 96 of IrV1n. P_ ' g Sl;•,',7div lS lO In l:N;a Clty Of T+�C�Tp JYt r" <_C}, cbU.t'y Of ora.n;°, State Of Cali.fc -Mia, as p2 ,-,;p recorded in 1a fir Look: 1., page E3 Of Misc-11ancOmlS�P.eC. ?..d T�,pr '-'i- t OF��7.1OwS° GctixTt d?�c_d. , ° of �'�e cou ^.ty ?eecrd x of said V. Block 96 tC:ance Pe iinir.z at %ise wes- c0 nL Of said !� O Of sa3� CO �.t'09.6 °Ply along tNl£< 50i m"',i SofYTr c�. ^1'.O 67.3 as filac;c :35 to the Easterly co.._ r of r 20 Da��s 17 and 1S of Dar sn r_coY1 d 'i x Lock , �bei.n.g also an an le T`AGCL1.1 reous Baps , said ctc�x-ae� ° 7 poi".-- ? the bout dart/ of the Faro ^r V V QSi 1° Htl'O'.1 t0 '' ul >y Of )3 °aC :1 as eSL'2b11 °_ :.i_eCi Cyr C1t`7 Oid .:a ' Rq" ; thence 1tortheaste_ly aloe -sue Said `•,O. uengle PDiP.t In the boundary Of S:'?..P :.�,:. an ar., - 57 to tx e City of tiewp t: Beach a.n est�b No. dated August 9, 1965. Reso UtIon o. 6203, g' ... i �._tj' Or i'_S:ipGl't' Beach Council and a'ten&lr-' }' 6247 dated November 8, 1965, said 1C the S'ot,th.:esterly ter lie xs of that q m L}G° 56' 20'' East c�u 4. - `.Crload !:herein a 5 north thence �en.xa.11.y Northeasterly and North- l,F alon b said boundary to tl:e r.as _'e.r' y runt. of r ? ?ou1�ard 1.00 00 feet x- ;de „,a. ?, o rfa.c r.Lhur r a, c �c� in the deed recor'i?(1 in fiC 1047, _c1c12.� Re J_ tl.exxc.e ;enn' ally P?ortN >m' y 5 , 1 . :Ln� a�so %aster.ly x :L�hi_ 0 :f ay 1. :n of Aun ^_ : :atio_n T.to> .50 to t:he City of 3. t iknch as asLablisheJ by City Ordinacce No, 999 to tho SaqAyasterly line A said Mck 563 thvzce 5outh- WSMAV along Said SOULWStelly line being also said bowndery o;' i\nitc-xaricn i�t %. O to th•a rjj�h!: of way line of said Mc Arrhur Boulevard; thznco Noctherly along said Westerly right M way 07c being Aso the boundary of the Jamboree Rand Annexation t* At City of: %w1wort Beach as establishal hw City Ordinnoce No. 840 to the ce-r-.ter linc-,. of Mad. 30.00 feet wide, as dcscr.-Lbed in th -re- cor6:.--..j in Book 1677, Page 98 of Official thanns Westerly and Northwesterly along said :snler line no the ccncer line A jambDree Road, 132.10 feet wide, as described in the do-3d ra:ccrdad in �-,1353 Page 155 cf Official Records, thence generally South- w3sterly along said center line of .7,zcrb*r;--..e to the center line of State of Cal.iforni%-t '-''.cwte C . 60-B, i0O.00 feet Ada, as dcscribe-d in dead recorded in Book 487, Page 3 of Official aerds; thence Easterly along said State HigWay cerise= ns line to the Southwesterly line of said 111cric 59; Atrice Southeasterly along said Soutlhy.aoscerly lliz-,e :he Scuchwesterly line of said Block 93 to the point of beginnAg, CATV systain herein franchised shall he used and , .---rated solely exclusively for the purposes expressly authorized by ordinance nhe City of Neypert Reach and no other purposes whate-cever. SECTIGN J. Nonexclusive Granit Th right is use ard o cupy said streets, alleys, and places for the purposes herein set forth shall not b: 1 :`!Usive' and the City raierves the right to grant a similar use said streets, alleys,, ppublic -,.7ays and places to any person at r7 cima during the term of this franchise. SECTION 4. Term of Frar6hise. The term of this franchise shall be years c : i.-,, S r. c a at 12�V. P.M. on the ef)-r-ective date c.•f this z that the Grantee has filed written notice j 'LOccaptanww in accordance with the requirement of Section 10 AM ordiwance. TIMION 5. inclusion or Franchise DocumEnm --- — — ------ of the frar.chise. docutricnt-s applicable to this fran- -70 are by incorporated by refererae and maje a part _of uriivn�ns. Ey acceptance of this franc-hise Gra-,-'L-iCe agrees 1: 4. • 0 ;ic1 by all of the provisLo.-l'; an�,, conditiu:l�; COEA,�;��"n SECTION 6. In d enin i. f ir tion OE Lh C4_ %,, Grantee agrees that it shell hold its officers, jo:13ds cor. -miss o - :Idl e M plcl!(es 411d from ,:ny and all claims, demands, -2:;!­,:.-.,1S) suits) ...�4t,'cs and judgments of every kind and and re�ardlcss •erit of the same, arising _s) . _ng, out of or re I-- _-,i6 to tie r artchlse by incl -- ling �:sa or enjoyment of this f demands, actions, suits, lial-M-4-ties a� ju'd--. ents based -yright infringement; Grantee further L==_ees Ellat it -a-7.burse City for any costs and expenses :Incurred by City a.7ainst any such claim or claims, 47.cluding attor- fees, accountant fees, expert witness or cor:sultlant fees, costs, per diem e::per.se, travel and living e.-,pense, Grant:cc acre es that upon demand of the City it appear in and anv and all suits, actions, or odder legal procee'_' _Czrer JUZL -*ical, quasi- Judicial, administrativc, legislative, or brought by third persons or duly constituted au-11-:ori- ac�-_-nst or affecting the Cit-) i ts off commis- icez-, boards agents or em?lovees and ar,isi-tc out of or Pertaining to -_::excise or enjoyalent of such -franchise, or the granting by the City; the forcLoi-1-g obligations shall ex-ist and aF withcut reference to or limitation by the amount of any Policy of insurance, deposit, undertaking or other securit, d hereunder; provided that neither crantea nor City she!' 3r enter into any compromise or settlement o7 any claim, 1rst giving .4) action or suit for monetary d_-mages witl.h . out L L fi-1 L '0zher ten (10) days' prior written notice of its intention SECTION 7. Right of City to Adopt 4,:,ditiO11,13. ':ales The right is hereby -eserved to t`:-_e City to adopt, z': k a u c nY'.isinns cbnta_nud in this rr ordinance ordinances and LCSOlLI.L "d.On3, SLiCh YC.�Lt- ...� i.G > a detcrrti.ne -to be itccrssary or con< c:':'.e-t' in of 1)OliCa power. $ECLlUc +. SJ. Prohibited t1C.t.1C,'.l l:l @.S (i1 c'ran ". -e shall be prohibited f. roin dir.ecely or " -=ctiy _ anY of she f.olowi.ng: ;) E^gaffing in the business of se1.i;.T)g a rePairi.no or servicing of televisoa s radios >ccz_iv: -:g apparatus, or any Part or crr_:._..E ^.t (e) pro =i.ding any repair service to its subs:- c`. iP.0 OY Cdf17.C11.. ('.l'tendS beyond Lh2 e0".:1HCt_G ^:. Ot itS :.; -.ce. and t!-_;1 determination. by Grantee of thLe cL2' :it,17 c�= its -.7 to its subscT;be_s. , (G) CO.1.iC it inj, Tefe7:Tln-, OT causing OT pe= --'`ft= =5 the is prohibited from enga.girg in by the.. provisions hereof.. (c) ranS>'.)_ttin g or Presenting any programs or events a seT)arate and distinct charge is made to the subscribers r <roniv - -own and re'c_ = -'I Ted to as "p' `e1: v1SlOnity �.' C n-ee Shall not maintain or operate on any television 8 CGi i b ^':: or any o`her device or rneans the Collecti.On Of -_•. ..G- _. _atl._ D1 �t cfflo 7 'r :sfeT of Fl-an�h ,e nc':_sc. shall not be sold, transfer-ea, d_s -osed of in whole or in a'L b^ -_ r P r - :•�G1 s.a l.e, riergeT., consolidation:; or Otl)E.1'C-71Sey -without " -Ju _.. _.'ant of the City Council expressed by 1esC��i Lion., a a ^_n L' �Uch ter'1S and conditions as t11C COUn'�li; may Ple- - 1: %l:. 01 arii�'. it ;dent 511x1.1 be el. {G'G't =.Vl� until ��r:ns or corporations c-l�uped in any mousiness ,•:ni:ch ^_. t�it0i. Or r2ie"Tcl of any slbsC L "lb eT t0 :i:.y specific named . t ss c ' 1 nPfinl.• cif Citv i�1 1.L:. J: c..V iii2i 1. :... -;1 tl',.. - 211 l.l?strumcnIC, 'L! I.y cSccu!ed and approved 'a& to fo'.r.IIl G "1 i)y the City ^.ttorney, recit'ing the f't!ct of such >9 "° the terms of !' "he ✓: � -e� 8..`:Sl �Ctll�IlC Or _.�._o �., accepting � _. R.'1:_cing to p _arm all the conditions thereof, inclu,l ;: l or.c" conditi -c-ns required by the City Council. SECTION 10. Acceotanc.e of Franchise... This _! se s all not become effective for any _ Pose unless zinc! ?'.tii Wrltt Cn acceptance thereof si;.ali 1`1av = iileCi D:lth the C_:..- CiP'. ?• and $111411 1' ?r ltten aCC'eptal ?C +3 si': = -_ in form and sobs as shall be prescribed by the City _ ttz=ney zn.d shall be and as an acceptance of each and every te-' ,. cOndltlOn and '.4 `.2i�10i contained herein, or otherwise :.7 fl"'1= i + °<a. oy ordinance or re:aoluticn of the City Council. Said crti •s' acceptance shall be failed by the Grantee not later t1:an 12 °01 ?.3f, of file fif ee., (15th) day next following ti ° date of tl:e aGO,)ti on by the Ciouncl l CL this ordin:- ,.ihce; gild, il n defaL'It c ii ce Minim of s'o.ch, written acceptance a.$ herein required, G ra n te.e s ^a 11 be do ^d ro ?1a- -e re!ec ed and repudiated the sclae, and �h C,rea f t er, the acc27t:ance of any Such Grantee Shall not be re- �el'ved by th•= City Clerk, and such Grantee shall have no r1 s, =e'e liCs _ or ^.i. 'ss3 in. the premises, Unless and until. the City �Oztnc .I 31-'all. by _3soll "ion, determine that such acceptance be 'C,C= \'8 c r 4 1 7.11d _h -a u-on Such terms and con(Htions as ;ne C.c.r.cil � � ^ -ce>t2nce Fee. Sl1^ll, u7oon the acceptance or this franc'.^.ise, 7Ry to the flit" i': co^siC:-ration of the granting of this fran- c',;se_ tit^ sup! r- 000. hn uni Franchise, Pce. The :. __e steal. pay annually to the City darn_ the 7. I 0./- t . Ll.l1 1A i1C 11 S. OL' ' le h]'1 . jV} CgC O p ', O Cr",ll" r -I_ .\1 ull.%C1. this 1 .:._.._}ILSL ot.,,.— ���:i3 -kaf 1- �.CZ1IIVt- �.0.._ t -h-` .<^:.._p`� AS V. A_. .\ 0 f h ♦..� < lJ.. ( // _ I V, 1 e r� - ),I.oL- tf e- anrnl_11� C; s� l.ecc�.pts derived from its ops aLicr tha City. SECTIOal 13. Effc._tive Pate. This ordnance shall become effective 30 days fr __tor the date of i.ts adoption; provided, however, that the :ran lice hereby granted shall not beco-me effective unless and un_._1 Crnnte2 files v: teen 4cce -ptance thereof in the ina -,Iner -- reified in Section 10 of this ordinance and deliver; to t`_,? _ tp all bonds z:_d insurance policies required to e f %rnzs'_ in accordance lrit_h the requirements of Chapter 5.44 of Title 5 Qf ;: e N2 Tort Beach Municipal Code. SECTION; l4. Publication. This ordinance shall be pi'bli:shed once is the r:e•,rspFper of the City". This ordinance was introduced at a regular *eeti.ng of City Council of ttic City of Nesport Beach heirs cn the of , 1966, and was adopted on the �a of ,._- .._: , 196 !., by the following vote, to -_t: AYES, COUNCIT_?EN: ? F �,.:, ': c,� - - ;•:a,_? NO 'S, COUINCIUIENI: I :-.._ � ABSENT COMCCIUMN: _ =r �lertl Vice mayoi: R, ORDINANCE NO. !L�7 - / AN ORDINANCE OF THE CITY OF NEWPORT BEACH GRANTING TO WARNER BROS. TV SERVICES, INC. A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE A COMMUNITY ANTENNA TELEVISION'SYSTEM WITHIN SAID CITY The City Council of the City of Newport Beach does ordain as follows: SECTION 1. Definitions. Wherever in this ordinance the following words or phrases are used, they shall have the respective meanings assigned to them in the following definitions; and words or phrases not defined in this section which are defined in any franchise document shall have the same meaning in this ordinance assigned to them in such . fran- chise document, unless the context in which they are used shall clearly indicate a different meaning: (a) "City" shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. (b) "Council11 shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) "Person" shall mean any individual, firm, partner- ship, association, corporation, company or organization of any kind: (d) "Grantee" shall mean Warner Bros. TV Services, Inc., a Delaware corporation, its employees, agents, successors and assigns. (e) "Community Antenna Television System" or 8°CATV System" shall mean a system of antennae, coaxial cables, wave guides, poles, wires, underground conduits, manholes and other conductors, equipment or facilities designed, constructed or used for the purpose of providing television, radio or other service by cable or through its facilities as herein contemplated. CATV shall not mean or include the transmission of any special program �J 0 or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as pay television. (f) "Subscribers" shall mean any person or entity receiving for any purpose the CATV service of the Grantee herein. (g) "Gross Annual Receipts" shall mean any and all com- pensation in the form of gross rental and /or service receipts, including initial installation charges -, received directly or in- directly from subscribers or users in payment for CATV services received within the City, Gross annual receipts shall not include any taxes on services furnished by the Grantee imposed directly on any sub- scriber or used by any city, state or other governmental unit and collected by the Grantee for such governmental unit. (h) "Franchise Area" shall mean the territory within the City throughout which Grantee shall be authorized to construct, maintain and operate its system and shall include any enlargements thereof and additions thereto. (i) "Franchise Documents" shall mean and shall include all of the following- (1) Article XIII of the Charter of the City of Newport Beach. (2) Chapter 5.44 of Title 5 of the Newport Beach Municipal Code as the same now exists or as it may hereafter be amended. (3) Any and all rules and regulations governing the operation of CATV Systems within the City of Newport Beach which are adopted by the City Council. (4) The written acceptance of CATV Franchise filed with the City by the Grantee. (j) "Street" shall mean the surface of and the space and below any public street, road, highway, freeway, lane, 2 path, alley, court, sidewalk, parkway, or right of way whether or not improved, now or hereafter existing as such throughout the City. SECTION 2. Grant of Franchise. There is hereby granted to Warner Bros. TV Services, Inc., a Delaware corporation, by the City a nonexclusive franchise to con- struct, erect, operate and maintain, in, upon, along, across, above, over and under the public streets, alleys, public ways and public places, now or in the future dedicated for public use in the City, poles, wires, cables, underground conduits, manholes and other tele- vision conductors, appurtenances and fixtures necessary or convenient for the maintenance and operation in the City of a community antenna television system to transmit television and FM radio signals, within the franchise area described as follows: All of the territory within the boundaries of the City of Newport Beach as such boundaries exist on the effective date of this ordinance, with the exception of the following ter- ritory- That portion of Blocks 51, 55, 56, 57, 92, 93, and 96 of Irvine's Subdivision in the City of Newport Beach, County of Orange, 'State of California, as per map recorded in Book 1, Page 88 of Miscellaneous Record Maps in the office of the County Recorder of said County, described as follows: Beginning at the West comer of said Block 96; thence Southeasterly along the Southwesterly line of said Block 96 to the 'Easterly corner of Tract No. 673 as per map recorded in Book 20, Pages 17 and 18 of Miscellaneous Maps, said comer being also an angle point in the boundary of the Harbor View Annexation to the City of Newport Beach as established by City Ordinance No. 896; thence Northeasterly along said boundary to an angle point in the boundary of Annex- ation No. 57 to the City of Newport Beach as estab- lished by Resolution No. 6203, dated August 9, 1965, of the City of Newport Beach Council and amended by Resolution No. 6247, dated November 8, 1965, said point being the Southwesterly terminus of that certain course described therein as 'North 44® 56' 20" East 114.30 feet "; thence generally Northeasterly and North- westerly along said boundary to the Easterly right of way line of MacArthur Boulevard, 100.00 feet wide as described in the deed recorded in Book 1047, Page 557 "of Official` Records; thence generally Northerly along said Easterly right of way line being also the boundary of Annexation No. 50 to the City of Newport 3. Beach as established by City Ordinance No. 999 to the Southeasterly line of said Block 56, thence South- westerly along said Southeasterly line being also said boundary of Annexation No. 50 to the Westerly right of way line of said MacArthur Boulevard; thence Northerly along said Westerly right of way line being also the boundary of the Jamboree Road Annexation to the City of Newport Beach as established by City Ordinance No. 840 to the center line of Palisades Road, 80.00 feet wide, as described in the deed re- corded in Book.1677, Page 98 of Official Records, thence Westerly and Northwesterly along said center line to the center line of Jamboree Road, 132.00 feet wide, as described in the deed recorded in Book 6135, Page 155 of Official Records, thence generally South- westerly along said center line of Jamboree Road to the center line of State of California Highway Route ORA. 60 -B, 100.00 feet wide, as described in the deed recorded in Book 487, Page 3 of Official Records; thence Easterly along said State Highway center line to the Southwesterly line of said Block 55; thence Southeasterly along said Southwesterly line and the Southwesterly line of said Block 93 to the point of beginning„ The CATV system herein franchised shall be used and operated solely and exclusively for the purposes expressly authorized by ordinance the City of Newport Beach and no other purposes whatsoever. SECTION 3. Nonexclusive Grant, The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use said streets, alleys, public ways and places to any person at time during the term of this franchise. SECTION 4. Term of Franchise, The term of this franchise shall be fifteen (15) years and shall commence at 12:01 P.M, on the effective date of this ordinance, provided that the Grantee has filed written notice Of acceptance in accordance with the requirement of Section 10 of this ordinance. SECTION 5. Inclusion of Franchise Documents. All of the franchise documents applicable to this fran- chise are hereby incorporated by reference and made a part of this ordinance. By acceptance of this franchise Grantee agrees 4. be bound by all of the terms, provisions and conditions contained said franchise documents. SECTION 6. Indemnification of the City. Grantee agrees that it shall indemnify and hold harmless 41 he City, its officers, boards, commissions, agents and employees t and from any and all claims, demands, actions, suits, ties and judgments of every kind and nature and regardless the merit of the same, arising out of or related to the or enjoyment of this franchise by Grantee, including ims, demands, actions, suits, liabilities and judgments based copyright infringement; Grantee further agrees that it will reimburse City for any costs and expenses incurred by City in defending against any such claim or claims, including attor- neys' fees, accountant fees, expert witness or consultant fees, costs, per diem expense, travel and living expense; Grantee further agrees that upon demand of the City it will appear in and defend any and all suits, actions, or other legal proceedings whether judicial, quasi - judicial, administrative, legislative, or otherwise, brought by third persons or duly constituted authori- against or affecting the City, its officers, boards, commis- sions,, agents or employees and arising out of or pertaining to the exercise or enjoyment of such franchise, or the granting thereof by the City; the foregoing obligations shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other security required hereunder; provided that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, demand, action or suit for monetary damages without first giving the other ten (10) .days' prior written notice of its intention to do so. SECTION 7. Right of City to Adopt Additional Rules and Regulations. The right is hereby reserved to the City to adopt, in 5. dition to the provisions contained in this ordinance and in any other applicable ordinances and resolutions, such additional regu- ions as it shall determine to be necessary or convenient in ire exercise of the police power. SECTION 8. Prohibited Activities of Grantee. Grantee shall be prohibited from directly or indirectly 2$ any of the following: (a) Engaging in the business of selling at retail, sing, renting, repairing or servicing of television sets, radios other receiving apparatus, or any part or component thereof. (b) Providing any repair service to its subscribers, a fee or otherwise, which extends beyond the connection of its Vice and the determination by Grantee of the quality of its gnal to its subscribers. (c) Soliciting, referring, or causing or permitting the licitation or referral of any subscriber to any specific named rsons, firms or corporations engaged in any business which antee is prohibited from engaging in by the provisions hereof. (d) Transmitting or presenting any programs or events which a separate and distinct charge is made to the subscribers the manner commonly known and referred to as "pay television ", d the Grantee shall not maintain or operate on any television e or means for the collection of t a coin box or any other devic for individual programs. SECTION 9. Transfer of Franchise. This franchise shall not be sold, transferred, assigned, sed or otherwise disposed of in whole or in part by voluntary involuntary sale, merger, consolidation, or otherwise, without prior consent of the City Council expressed by resolution, I [ then upon such terms, and conditions as the Council may pre - 1be. No sale, transfer or assignment shall be effective until 6. 1: vendee, assignee or lessee has filed in the office of the City -k an instrument, duly executed and approved as to form and :ent by the City Attorney, reciting the fact of such transfer, assignment or lease, accepting the terms of the franchise, agreeing to perform all the conditions thereof, including any additional conditions required by the City Council. SECTION 10. Acceptance of Franchise. This franchise shall not become effective for any pur- unless and until written acceptance thereof shall have been with the City Clerk; and such written acceptance shall be form and substance as shall be prescribed by the City Attorney and shall be and operate as an acceptance of each and every term, and limitation contained herein, or otherwise specified by ordinance or resolution of the City Council. Said written shall be filed by the Grantee not later than 12:01 .M. of the fifteenth (15th) day next following the date of the adoption by the Council of this ordinance; and, in default of filing of such written acceptance as herein required, Grantee 11 be deemed to have rejected and repudiated the same; and j.hereafter, the acceptance of any such Grantee shall not be re- eiived by the City Clerk, and such Grantee shall have no rights, remedies, or redress in the premises, unless and until the City Council shall, by resolution, determine that such acceptance be d or filed, and then upon such terms and conditions as the Council may impose. SECTION 11. Acceptance Fee. The Grantee shall, upon the acceptance of this franchise, pay to the City, in consideration of the granting of this fran- e, the sum of $2,000. SECTION 12. Annual Franchise Fee. The Grantee shall pay annually to the City during the 7. , . - 1 of this franchise for the privilege of operating a CATV m under this franchise a sum equivalent to three per cent of the annual gross receipts derived from its operations the City. SECTION 13. Effective Date. This ordinance shall become effective 30 days from and r the date of its adoption; provided, however, that the fran- e hereby granted shall not become effective unless and until Grantee files written acceptance thereof in the manner ified in Section 10 of this ordinance and delivers to the all bonds and insurance policies required to be furnished in accordance with the requirements of Chapter 5.44 of Title 5 of Newport Beach Municipal Code. SECTION 14. Publication. This ordinance shall be published once in the official of the City. This ordinance was introduced at a regular meeting of City Council of the City of Newport Beach held on the ._--&M of Do -ember , 1966, and was adopted on the 2& of D--b,a__, 196_A, by the following vote, to AYES, COUNCILMEN: ftra"s. logerr. MaraMU rarxik sholtaa NOES, COUNCILMEN: ,a ABSENT COUNCILMEN: c....k_ chi: ATTEST: urty ,r Q3�Qp ice , , or ,, �V'� e— - ;Mayor