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HomeMy WebLinkAbout1891 - Renewing a Non-Exclusive Franchise with Community Cablevision Company to Construct, Maintain and Operate a Community Antenna Television System within said CityORDINANCE NO. 1891 AN ORDINANCE OF THE CITY OF NEWPORT BEACH RENEWING A NON - EXCLUSIVE FRANCHISE WITH COMMUNITY CABLEVISION COMPANY 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 docu- ment 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) "Community Antenna Television Systems" 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; (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 (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. (b) "Grantee" shall mean the Community Cablevision Company, a wholly -owned subsidiary of The Irvine Company, a • Michigan corporation, its employees, agents, successors and assigns. (c) "Gross Annual Receipts" shall mean any and all compensation and other consideration, in any form whatsoever, and any contributing grant or subsidy received directly or indirectly by Grantee from: (1) subscribers or users in payment for any CATV system services, including television broadcast, satellite, microwave, or FM radio signals, reception or service received within the City or transmitted in any shape or form from the City for which local subscribers or users make payment, whether said signals, reception or service is included within the terms "Basic Subscriber Services" or "lion Basic Services ", as said terms may be defined in the Municipal Code, as well as any installation or line • extension charges therefor; (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. (d) "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; -2- (3) Any and all rules and regulations govern- ing 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. SECTION 2. Grant of Franchise. There is hereby granted to the Community Cablevision Company, a wholly -owned subsidiary of The Irvine Company, a Michigan corporation, by the City of Newport Beach, 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, man- holes and other television conductors, appurtenances and fixtures necessary or convenient for the maintenance and operation in the City of Newport Beach, of a community antenna television system to transmit television, FM radio and other signals within the franchise area described as follows: • "That portion of Blocks 51, 550 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 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 Annexa- tion 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 Southerwesterly 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 Annexa- tion No. 50 to the City of Newport Beach as established by City Ordinance No. 999 to the Southeasterly line of said Block 56; thence Southwesterly along said South- easterly line being also said boundary of Annexation No. 50 to the Westerly right of way line of said MacArthur Boulevard; thence Northerly along said -3- • • J 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 61350 Page 155 of Official Records, thence generally South- westerly along said center line of Jamboree Road to the center line of State of California Highway Route ORA. 60 -B, 100.00 feet wide, as described in the deed recorded in Book 487, Page 3 of Official Records; thence Easterly along said State Highway center line to the Southwesterly line of said Block 55; thence Southeasterly along said Southwesterly line and the Southwesterly line of said Block 93 to the point of beginning." The CATV system herein franchised shall be used and.operated solely and exclusively for the purposes expressly authorized by ordinance of the City of Newport Beach and.no other purposes whatsoever. SECTION 3. Nonexclusive Grant. The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use of said streets, alleys, public ways and places to any person, at any time, during the term of this franchise. SECTION 4. Term of Franchise. The term of this franchise shall.be ten C10) years, commencing on January 27, 1982, 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 franchise are hereby incorporated by reference and made a part of this ordinance. By acceptance of this franchiseo'Grantee agrees 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 harm- less the City, its officers, boards, commissions, agents and employees against and from any and all claims, demands, actions, -4- suits, liabilities and judgements of every kind and nature and regardless of the merit of same arising out of or related to the exercise or enjoyment of this franchise by Grantee, including claims, demands, actions, suits, liabilities and judgements based upon copyright infringement, except those resulting from the sole • negligence or willful misconduct of the City; 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 attorneys' fees, accountant's fees, expert witness or consultant's fees, court costs, per diem expenses, travel and living expenses; 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. SECTION 7. Right of City to Adopt Additional Rules and Regulations. The right is hereby reserved to the City of Newport Beach to adopt, in 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 its police power. SECTION 8. Prohibited Activities of Grantee. • Grantee shall be prohibited from directly or indirectly doing any of the following. -5- (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 and maintenance for 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 specifically named persons, firms or corporations engaged in any business which Grantee is prohibited from engaging in by the provisions hereof. 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 of the • City of Newport Beach, expressed by resolution, and then ,upon such terms and conditions as the City Council may prescribe. No sale, transfer, assignment or lease shall be effective unless and until the vendee transferee, 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 sale, transfer, 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 inform and substance as shall be prescribed by the City Attorney and shall be and operate as an acceptance of each and every term, condition and limitation contained herein, or otherwise specified by ordinance or resolution of the City Council.. Said written acceptance shall be filed by the Grantee not later than 12:01 P.M. of the fifteenth (15th) day next following the date of the adoption by the City Council of the ordinance; and, if default of 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. SECTION 11. 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'$2,000.00 as and for an Acceptance Fee. SECTION 12. Annual Franchise Fee. The Grantee shall pay annually to the City of Newport Beach, 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 derived from all • of its cable services in the community, including but not limited to, pay T.V., premium services and advertising. Furthermore, Grantee agrees to support any application the City of Newport Beach may make to the Federal Communication Commission for a waiver of any franchise fee limitation which would permit retention of the five percent(5 %) fee. 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 10 of this ordinance and delivers such acceptance in accordance with the requirements of Chapter ..5.44 of Ti.tle.5 of the Newport Beach Municipal Code. • SECTION 14. Publication. This ordinance shall be published once in the official newspaper of the City. -7- 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 23rd day of November , 1981, by the following vote, to wit: AYES, COUNCILMEMBERS: Cox, Heather, Hummel, Strauss, Plummer, Maurer NOES, COUNCILMEMBERS: None ABSENT COUNCILMEMBERS: Hart ATTEST: • i %%��'♦✓_' / %1i /G CITY CLERK • i