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Ab 0 �R° CERTIFICATE OF LIABILITY INSURANCE °' °tom PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES. DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. OCCLUSIONS AND CONDITIONS OF SUCH PPOODUM THIS CERTIFICATE 19 MWED AS A MATTER OF INFORMATION ONLY IIML2Q DAYS IlttrM NOTICE TO THE C®t WATB MOLDOI MMiEDTO M LBT. BUT Mutb USA. Roc 1575 Pioduml Rao NE, Sam 1200 Adialb, GA 10105 AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. POLICY tRlCTN! DATE suer [B171ATtON DATZ Ullm INSURERS AFFORDING COVERAGE GBlML LIABILITY NAIL B IIEaBI® INSUAM A: SIM Nauaml lmREatce company t 12831 i LNwneR t: Cm Fm¢iw. lrr Rf Cm Cotmmicart®a OnQp Canty, Lac 6705 Pmcb&= Dtmwoody Rood AdSAW GA 10.748 � IIIBURFA C' PEFISOML A ADV INJURY t INSURER D: M WRER E: t�MERALAOGREATE C. t VERAGEg OpVI AeMpEOATE LIMIT 44UEB PER: THE POLICIES OF! INSURANCE BEEN L9SUED TO THE INSURED NAM IN NOTWITHEITANDING ANY REQUIREMENT TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT MTN 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. OCCLUSIONS AND CONDITIONS OF SUCH POUCIE& AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAWS. alm IIML2Q DAYS IlttrM NOTICE TO THE C®t WATB MOLDOI MMiEDTO M LBT. BUT TYPE OF BOIMANCE POLICY Nublem POLICY tRlCTN! DATE suer [B171ATtON DATZ Ullm GBlML LIABILITY EACHOCCURENCE. t ❑ 1❑❑1'''11 UDB COMMERICAL DBHSRAL LIABILITY LJ❑ C MMDE. [3 OCCUR Rf i MID DIP Ww e.a Peen) t PEFISOML A ADV INJURY t t�MERALAOGREATE C. t OpVI AeMpEOATE LIMIT 44UEB PER: PRODUCTS - OMPRIP AGO t ❑ POLICY❑ PROJECT [I LOC s ❑ AVIOEOBLLE LIABILITY ❑ ANY µlip DOWNED 81 I IEadl OeaulwwLIMIT f ❑ ALL OWNED AUTOS SOEDULDD AUTOS BDDILY INJURY (Pw wo ) f I'❑❑�lI,_'�fj{ L�l HWED AIUTOS IL~J NONOWNED AUTOS BODILY IW URY (pw Qpyh f ❑ -- PROPERTY M AAOE (P. cmND f ❑ OARAOS YABBNY AUTO ONLY - EA ACCIDENT f ANY AUTO OTHER THAN a Act: f AUTO ONLY: A00. f El LYgBN A•WULLA UABLITY EN EACH OCCURRENCE $ AGDIEOATE f ❑ Do" ❑CLAMS MAN f ❑ DEDUCTGLE ❑ RET6RION E s f. T1=1ISRt COMPENUTIONAID tiBIOYow LIWTT ❑TORY WCSTATU ❑ ER EL EACH ACCIDENT f ANY PROPRIETOIVPARTNaFtfEXECU• THE OPPIOERAl1/61 H(CLUDEp9 EL DI6EASE -EA EMPLOYEE E ay..,a.nA. SPECIAL PROVaDNBO.I... E.LDBEASE- POLICY LIMIT E ®OHINI Me6AliswitY USUUA26199519 17/1!2009 l7N/2010 limitdliabillty silooDAM D6lCPWq MOP D/OUTIOIBII.LOCATIOIi l YE /Bait /EJLCLUSICl/ADDED BY EIOORtBIENT /tPECIAL PPANSiM Mw City d Newport Bead is Gated u an MddifimA imi and with Tespect to apammt with Cm Commlmad= dOrwW Canty, lnc Bty,an: «_Tti::.1..: 4: M1L— NdIFA9'.1- City ai Newpn Bead >HOULD ANY .OP THE ABOrE 061101301110 POMCIIRI BE CAICIELLED BEFORE THE SSD Nowpat Beam 110RATRON LATE TWOWDF. THE BB1Y1116tAPPOMM COVEIME WLL 9MMwOR TO Newport Bach. CA 92658 IIML2Q DAYS IlttrM NOTICE TO THE C®t WATB MOLDOI MMiEDTO M LBT. BUT PAIL1Sl TO 00 SOSMAU. WON MD MMIATIOM mI UAIIIIIIJ ALIT law UPON THE ITS AGEIttt OR RBPIL9EMf AUTHORIZED BEIImYMTAT NIN • 0 RECEIVED 20 JAN -9 AN 9- 22 MUTUAL INSURANCE COMPANY, LTD. UrCE OF THE CITY CLERK CITY OF t FOPORT BEACH CERTIFICATE OF INSURANCE INSURED: Cox Enterprises, Inc. Cox Communications Orange County, Inc. 6205 Peachtree Dunwoody Road Atlanta, GA 30348 CERTIFICATE ISSUED TO: City of Newport Beach 330 Newport Beach Newport Beach, CA 92658 TYPE OF POLICY LIMIT OF INSURANCE _ NUMBER _POLICY PERIOD LIABILITY Media Liability 1299 -06021 December 01 2008 to December 01, 2009 $1,000,000 DESCRIPTION OF OPERATIONS / SPECIAL CONDITIONS: The City of Newport Beach is listed as an additional insured with respect to agreement with Cox Communications Orange County, Inc. CANCELLATION: THIRTY DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER DATE: December 02, 2008 BY: Authorized RepresenteM V0. N,s I IM 5111, 1 Lunibnm I IM NX. N- rintida la Plow tiavi KnUm4, 20 \iio. ma Stwo. I I:,imli,m IIM 11. &vnv,1.; I Fl. (441) 292 76i i FAX (49 1) 11)5 7562 F.�ui:nl u,b.,i'3mic hm FILE REFERENCE FORM Full File Created New Folder _ Older File Exists Related Topic: See Below Additional File Contains Records Not Public, According to the Public Records Act Other f' Reason: W � Q,X vfM yVN D 1 C1al f� uv. Date: 3 PLEASE SEE Initials: — L`c.ble � �y 3t��` f�gseew� �k e•rr��� Ade -loh c- ©2002 Gladwell Governmental Services, Inc. (909) 337 -3516 forth RM -1 ACORD„ CERTIFICA` OF LIABILITY INSURAI PRODUCER THIS CERTIFICATE IS ia, Inc. ONLY AND CONFER: Sedgwick of Geox 9 HOLDER. THIS CERTI DATE (MMIDONY) 12/28/98 Suite 500, South Tower ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 3333 Peachtree Rd. NE TYPE Of INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION DATE M ATE 0 _ LIMITS A Atlanta, Georgia 30326 -1043 1/01/99 1 01./00 EACH OCCURRENCE INSURERS AFFORDING COVERAGE INSURED 'ENSURER A: Nat.iona.l Union Fire Ins:. Co- $PERSONAL &ADV INJURY INSURER B: American Home Assurance Co. —PA Cox Communications, Inc. wsuRERC: The Ins. Co.of The State of P.O. Box 105357 INSURER D: American Intern'l South Ins.C: Atlanta GA 30348 I INSURER E: Birmingham Fire Ins. Co. RMCA3.209614 1/01/99 RMCA3209615(TX) COVERAGES F Oualified Self Insured** IX 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 POLICY EFFECTIVE POLICY EXPIRATION DATE M ATE 0 _ LIMITS A GENERAL LIABILITY RMGL61224.47 1/01/99 1 01./00 EACH OCCURRENCE $ 500000 �XICOMMERCIALGENERALLIABILITY CLAIMS MADE i- OCCUR $ 500000 M EDAM0.GE(Any0netI.) MED EXP (Any.one person). $PERSONAL &ADV INJURY $ 500000 tlExcess ' of $50 000 Self Insured R tentioil GENERAL AGGREGATE $ 3000000 GGEEN'L AGGREGATE LIMIT APPLIES PER n POLICY �,PRa n LOC JECT f PRODUCTS- COMPIOP AGG $ - 500000 B AUTOMOBILE'LIABILITY B ANYAUTO RMCA3.209614 1/01/99 RMCA3209615(TX) 1 /01 /00'COMBINED. SINGLE LIMIT (Ea ecNpent) 1000000 $ IX ALL OWNED AUTOS SCHEDULED' AUTOS BODILY INJURY IPer $ HIRED AUTOS .NON -OWNED AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGO S ANY AUTO EXCESS: LIABILITY OCCUR h CLAIMS MADE EACH OCCURRENCE AGGREGATE S $ JIB DEDUCTIBLE $ $ RETENTION $ B C DI EI WORKERS COMPENSATION AND RMWC3472399(AOS) EMPLOYERS'LIABILITY RMWC3 "472400(FL) RMWC3472401(GA) 1 1 RMWC3472402(CA) RMVBC3472403(AZ,VA) 1./01../99 1/01/001 X ORY LIMITS. ER. E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYE S x1000000 _ S 1000000 EL DISEASE -POLICY LIMIT $ 1000000 F IEmpl. OTHER. Work. Comp.. & * Self Insured- LA /RIil Liab. 1/01/99 1/01/00 Statutory 1 $1000000 DESCRIPTION OF OPERATIONWLOCATIONS(VEHICLES EXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS COX COMMUNICATIONS ORANGE CO., SAN JUAN CAPISTRANO, CA CERT. HOLDER, ITS OFFICERS ,BOARDS,COMMISSIONS,AGENTS & EMPLOYEES ARE ADDITIONAL INSURED AS RESPECTS CABLE TV SYSTEM. SEDGWICK IS NOT LISTING EXCLUSIONS OR SPECIAL PROVISIONS. CITY OF NEWPORT BEACH ATTN: KEVIN MURPHY 3300 NEWPORT BLVD. PO BOX 1768 NEWPORT BEACH, CA 92.663 6ANL.CLLN I I V N SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATIONS OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESEWATJUP-7 ACORD'25S (7/97) 33- 44 , o ACORD P 1111011, I I - . I ..... . ...... . ACORD .. PRODUCER Sedgwick James of Ga. Inc. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Suite 500, South Tower ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 3333 Peachtree Rd. NE ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Atlanta, Georgia 30326 COMPANIES AFFORDING COVERAGE COMPANY A National Union Fire Insurance INSURED COMPANY B Insurance Co. State of PA, Cox Communications, Inc. COMPANY P. 0. Box 105357 C Birmingham Fire Insurance co. Atlanta GA 30348 COMPANY D Qualified Self Insured** ffamUM ON iz " w"Umm" PT", 7-777AMM i'_, " 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. I LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION. LIMITS DATE (MMIDDIYY) DATE (MMIDDNY) A "NERAL LIABILITY 1 RMGL1438029 1/01/97 1/01/98 GENERAL AGGREGATE __I $ 500000 1 XI COMMERCIAL GENERAL LIABILITY PRODUCTS - COMP/OP AGG� S 500000 LjL CLAIMS,MADE L Fv� OCCUR PERSONAL& AOV INJURY $ 566000 OWNER'S & CONTRACTORS PROT EACH OCCURRENCE $ 500000 FIRE DAMAGE $ 500000 X1 Excess of $500000 Self Insured Retention 1 MED EXP (Any one person) $ A AUTOMOBILE LIABILITY RMCA1439016 1/01/97! 1/01/98: A X ANY AUTO RMCA1439023 (TX) COMBINED SINGLE LIMIT $ 1000000 X� ALL OWNED AUTOS BODILY INJURY 7X SCHEDULED AUTOS (Per Person) _X HIRED AUTOS BODILY INJURY X NON-OWNED AUTOS (Per accident) $ till 91 PROPERTY DAMAGE $ GARAGE LIABILITY Cm rgv ONLY - EA ACCIDENT $ ANY AUTO CITY OF NEWPORT BEAC9 I OTHER THAN AUTO ONLY: EACH ACCIDENT $ Ali AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM AGGREGATE $ $ OTHER THAN UMBRELLA FORM C1WORKERS COMPENSATION, AND EMPLOYERS'LIABILM RMWC2177698 RMWC2177700(VA) 1 1/01/97: 1/01/981 i WC STATU- _TQRY LIMITS EL EACH ACCIDENT 1000000 C � THE PROPRIETOR/ X I INCL RMWC2177699(AZ) DISEASE_- POLICY LIMIT $ 1000000 L IF EL Al PARTNERS/EXECUTIVE RMWC2177701(CA) _DISEASE 'I OFFICERS ARE EXCLI EL DISEASE - EA EMPLOYEE $ 1000000 L DISEASE L) � OTHER I Self Insured** 1/01/97 1/01/98 1 Statutory ,Workers Comp & 1 500,000 Each Acc. !Employers Liability I500*000 Policy Limit 1 GA, RI 1 500,000 Each Employee DESCRIPTION OF OPERAMONSfLOCATIONSIVEHICLES/SPECIAL ITEMS COX COMMUNICATIONS ORANGE CO., SAN JUAN CAPISTRANO, CA CERT. HOLDER, ITS OFFICERS,BOARDS,COMMISSIONS,AGENTS & EMPLOYEES ARE ADDITIONAL INSURED AS RESPECTS CABLE TV SYSTEM. WMT�"' �111 5a SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF NEWPORT BEACH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL ATTN: KEVIN MURPHY 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 3300 NEWPORT BLVD. PO BOX 1768 BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY NEWPORT BEACH, CA 92663 OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPR S NTAT 0"0' T {{,�yp .4 33-55 N AI / /II�D® PROnucER -- Sedgwi ck James of Ga. , Inc. y Suite 500, South Tower y TE (b0.VDDlYY) DA � 1 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 3333 Peachtree Rd. NE ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANIES - AFFORDING. COVERAGE Atlanta, Georgia 30326 COMPANY A National Union Fire Insurance INSURED COMPANY B Insurance Co. Stat PA COMPANY Cox Communications, Inc. P. 0. Box 105357 C Birmin h Fire Insurance COMPANY Atlanta GA 30348 D uied q Se ## alif i.: 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. 7H TYPE OF INSURANCE POLICYNUMBER POLICY EFFECTNE DATE(MWDD)YY) POLICY EXPIRATION DATE(MIWDD/YY) LIMITS A GENERAL LABILITY RMGL1213880 1/01/96 1 /01 /97 GENERAL AGGREGATE $ X PRODUCTS - COMP /OP AGG COMMERCIAL GENERAL LIABILITY CLAIMS MADE OCCUR ^ I PERSONAL& ADV IN $ 5OQ EACH OCCURRENCE $ 500004_ OWNER'SB COMRACTOR'S PROT FIRE DAMAGE (My one fire) $ 500000 - X Excess of $50 MED EXP(Any one person) $ 000 Self Insured Retention A A AUTOMOBILELIABILITY ANY AUTO RMCA1352625 RMCA1352626 (TX) 1/01/96 1./01/97 COMBINED SINGLE LIMIT $ X X BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED'. AUTOS X X INJURY (Per accident) $ HIRED AUTOS . NON -OWNED AUTOS IBODILY X PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN AUTO ONLY: - ANY AUTO EACH ACCIDENT $ AGGREGATE $ EXCEBB LIABILITY EACH OCCURRENCE $ AGGREGATE $ UMBRELLA FORM, $ OTHER THAN UMBRELLA FORM B j WORKERS COMPENSATION AND RMWC 1361572 1/01/96 1 /01 /97 STATUTORY LIMITS - I EMPLOYERS:' LIABILITY RMWC 1361571 (TX) EACH ACCIDENT $ 1000000 C A THE PROPRIETOR/ INCL PARTNERSIEXECUTIVE OFFICERS ARE: EXCL RMWC 1361570 (VA) RMW RMWC 21 16223 (CA) RMW 2116224 ( 21 16225 ( Z) K) DISEASE - POLICY LIMIT $ I000000 DISEASE EACH EMPLOYEE 1 $ D OTHER Self Insured #'e 1/01/96 1/01/97 Statutory Workers Camp & 500,000 Each Acc. Employers Liabil ty 500,000 Policy Limit GA, FL, LA, & RI DESCRIPTION OF OPERATIONSILOCAnONSNEHICLESISPECIAL ITEMS COX COMMUNICATIONS ORANGE CO., SAN JUAN CAPISTRANO, CA CERT. HOLDER, ITS OFFICERS ,BOARDS,COMMISSIONS,AGENTS & EMPLOYEES ARE ADDITIONAL INSURED AS RESPECTS CABLE TV wSYSTEM. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF NEWPORT BEACH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL ATTN: KEVIN MURPHY _30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 3300 NEWPORT BLVD. PO BOX 1 768 BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY NEWPORT BEACH, CA 92663 OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE i 33 -55 i{ -n CV � ����n a r� PRODUCER Sedgwic k James of Ga. Inc. DA 'S k r. TE IMMND /YV) r T THIS CERTIFICATE IS ISSUED AS A MATTER OF ION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Suite 500, South Tower 3333 Peachtree Rd_ NE HOLDER. THIS CERTIFICATE DOES NOT AMEND, . EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANIES AFFORDING COVERAGE Atlanta, Georgia 30326 COMPANY A 1 I.Iniun —cirm ...._ �� INSURED COMPANY B State ^f PA Cox Communications, Inc. P. O. Box 105357 COMPANY Fire Insu anre Ce- ,_ gl,-.e om COMPANY D Atlanta GA 30348 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 LTR TYPE OF.INSURANCE POLICY NUMBER POLICYEFFECTIVE DATE(MWDD /YY) POUCY'EXPIRATKTN DATE(MMIDDIYY) LIMBS A GENERAL LIABILITY RMGL1210113 2/01/95 1/01/96 GENERAL AGGREGATE 1-500 PRODUCTS - COMPIOP AGG $ COMMERCIAL GENERAL LIABILITY CLAIMS MADE L.A_! OCCUR PERSONAL &ADV INJURY $ FAnOG EACH OCCURRENCE $ 5 OWNER'S& CONTRACTOR'S PROT FIRE DAMAGE (Any one fire) )'$ MED EXP (Any one person) $ A AUTOMOBILE LIABILITY RMCA1350485 2/01/95 1/01/96 COMBINED SINGLE LIMIT $ A ANY AUTO RMCA1350486 (TX) lononoo BODILY INJURY (Per, person) $ ALL OWNED AUTOS SCHEDULED AUTOS' BODILY INJURY (Per accident) $ HIRED AUTOS NON-OWNED. AUTOS V— PROPERTY DAMAGE $. GARAGE LIABILITY AUTOONLY EA ACCIDENT $. OTHER THAN AUTO ONLY: ANY AUTO EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE $ AGGREGATE $ UMBRELLA FORM $ OTHER THAN UMBRELLA FORM B WORKERS COMPENSATION AND EMPLOYERS'LIABILRY - RMWC0170869 RMWC0170867 (TX) RMW 2/01/95 0170868 ( 1/01/96' A ) STATUTORY LIMITS EACHACCIDENT $ DISEASE - POLICY LIMIT $ C . THE PROPRIETOR/ IPAE PROP IETOR/TIVE 1NCL RMWCO17OS66(VA)RMW 211.0931( Z) DISEASE -EACH EMPLOYEE $ OFFICERS ARE: EXCL D .OTHER Self Insured ## 1/01/95 1/01/96 Statutory Workers Comp & 500,000 Each Acc. Employers Liability 500,000 Policy Limit 500-000 Each Employee DESCRIPTION OF OPERA TIONSILOCATIONSNENICLESSPECIAL ITEMS TMCT OF ORANGE COUNTY =— CERTIFICATE HOLDER, ITS OFFICERS, BOARDS, COMMISIONS, AGENTS & EMPLOYEES ARE ADDITIONAL.INSUREDS ATIMA AS Q t SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF NEWPORT BEACH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL ATTN: KEVIN MURPHY 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 3300 NEWPORT BLVD. PO BOX 1 768 BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY NEWPORT BEACH, CA 92663 OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AIITHORRED REPRESENTATIVE 33 -55 v 1 5 Liberty Plaza 101 Barnes Road P.O. Box 5009 Wallingford, Connecticut 06492 -7509 Telephone: (203) 294 -1505 October 6, 1993 City of Newport Beach, Ca Office of City Manager Newport Beach, CA Attn: Kenneth J. Palino RE: THE PROVIDENCE JOURNAL r r" , ,t ,d j v y_iV Gc s, 1. Liberty Mutual previously issued you a certificate of insurance dated 8/18/93 as evidence of insurance coverage for The Providence Journal. Please be advised that effective 9/07/93 the certificate is null and void. Ve duly yours, �L' / -- Denise Fenn Authorized Representative DF /cros cc: The Providence Journal Company Liberty Mutual Insurance Group /Boston Equal Opportunity Employer Certificate of Insurance A THIS CATtFICATE IS ISSUED ASA MATTER OF INFORMATI LY AND CONFERS NO RIGHTS UPON YOU THE CERTIFICATE OR. THIS CERTIFICATE IS NOT AN INSURANCE POLICY AND DOES NOT AMEND, EXTEND, OR ALTER THE COVERAGE AFFORDED BY THE POLICIES LISTED BELOW. This is to Certify that COMMUNITY CABLEVISION/THE IRVINE CO. THE PROVIDENCE JOURNAL COMPANY 75 FOUNTAIN STREET PROVIDENCE, RI 02902 Name and '— address of Insured. r I Is, at the issue date 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 requitement, term or condition of any contract or other document with respect to which this Certificate may be issued. f TYPE OF POLICY I EXP. DATE POLICY NUMBER LIMIT OF LIABILITY WORKERS Liberty Mutual Y STATEMENT COVERAGE AFFORDED UNDER WC EMPLOYERS LIABILITY' tlodity Injury By Accident Each 500,000 Accident COMPENSATION f I ( j 1/01/94 WC1 -1 1J-029910-323 WC2- 111 -029910 -173 WC2- 111-029909 -063 LAW OF THE FOLLOWING STATES: MA CA AZ,CT,DE,DC,FL,GA,IL,IN, KY,MI,NM,NY,NC,SC,VA. Bodily Injury By Die 500,000 P Policy —1 I CITY OF NEWPORT BEACH, CA OFFICE OF CITY BWdy Injury By Disease ✓- HOLDER AUTHORIZED REPRESENTATIVE ATTN:.KENNETH J. PALING 500,000 Each Person { GENERAL LIABILITY WESTWOOD, MA General Aggregate - Other than Products/Completed operations ❑. OCCURRENCE OFFICE' Products/Completed Operations Aggregate LJ CLAIMS MADE RETRO DATE Bodily Injury and Property Damage Liability Per N/A ..Occurrence Personal and Advertising. Injury i Per Perw t Organ vat .on I Other Other AUTOMOBILE LIABILITY Each Accident - Single Limit B.I. and P.D. Combined E:) OWNED ❑ NON -OWNED NIA Each Person LJ HIRED Each Accident or Occurrence, � Each Accident or Occurrence j 'OTHER = N/A I � ADDITIONAL COMMENTS I THIS CERTIFICATE VOIDS AND SUPERCEDES CERTIFICATE DATED 6/18/93 I LOCATION OF OPERATIONS: CATV OPERATIONS i SPECIAL NOTICE -OHIO ANY PERSON WHO WITH INTENT TO DEFRAUD OR KNOWING THAT HE IS FACILITATING A FRAUD AGAINST AN INSURER SUBMITS AN APPLICATION OR FILES A CLAIM CONTAINING A FALSE OR DECEPTIVE Liberty Mutual Y STATEMENT IS GUILTY OF INSURANCE FRAUD Insurance. Gmup NOTICE OF CANCELLATION: (NOT APPLICABLE UNLESS .A NUMBER OF DAYS IS ENTERED BELOW.) BEFORE THE STATED EXPIRATION DATE THE COMPANY WILL NOT CANCEL OR REDUCE THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNTIL AT LEAST 30 DAYS NOTICE OF SUCH CANCELLATION HAS BEEN MAILED TO: —1 I CITY OF NEWPORT BEACH, CA OFFICE OF CITY ACH,ANAGER CERTIFICATE NEWPORT BEACH, CA /! //— l/�- 3'i "_ ✓� ✓- HOLDER AUTHORIZED REPRESENTATIVE ATTN:.KENNETH J. PALING 8118193 WESTWOOD, MA DATE ISSUED OFFICE' iio� PRODUCER ISSUE DATE (MWDO/YY) 0 udiud194 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND JOHNSON & HIGGINS OF CALIFORNIA CASUALTY DEPARTMENT CONFERSNO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT POLIC ES AMENDELOW. , E)CTEND OR ALTER THE COVERAGE AFFORDED BY THE B 2029 CENTURY PARK EAST, SUITE #2200 LOS ANGELES, CA 90067-3083 COMPANIES AFFORDING COVERAGE TEL: (310) 552-8700 77870-60-91 U COMPANY A LETTER INSURANCE COMPANY OF NORTH AMERICA COMPANY B LETTER NIA INSURED TIMES MIRROR COMPANY TIMES MIRROR CABLE TELEVISION OF COM LETTER PAN Y c SELF INSURED ORANGE COUNTY, INC.; DIMENSION CABLE SERVICES COMPANY LETTER D FEDERAL INSURANCE COMPANY 26181 AVENIDA AEROPUERTO SAN JUAN CAPISTRANO CA 92675 COMPANY E LETTER 10tw.0 0 NM�. ` ' . � THIS IS TO CERTIFY THAT THE POLICIES F 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 LTR TYPE OF INSURANCE I POLICY NUMBER POUCYEFFECT iVE DATE (MMIDDIM POUCYEXPIRATION DATE (MMIDD(YY) UNIT$ GENERAL UABIUTY #HDO-GI-519190-9 08/01194 08101/95 GENERAL AGGREGATE $ 2,000,000 X PRODUCTS-COMP/OP AGO. $ 4,000,000 A COMMERCIAL GENERAL LIABILITY 1 CLAIMS MADE r -XI OCCUR PERsoNAL & ADv. INJURY $ 2,ODO,000 EACH OCCURRENCE $ 2,000,000 OWNERS & CONTRACTORS PROT. FIRE DAMAGE (A .W we fire) S 1'ODO'000 MED.EXPENSE(Anymepomrf, $ 5.000 AUTOMOBILE LIABILITY ANY AUTO COMBINED .SINGLE OMIT $ BODILY INJURY (Per Person) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Pw amiderd) HIRED AUTOS NONOWNED AUTOS GARAGE UABIUTY PROPERTY DAMAGE $ EXCESS LIABILITY EACH OCCURRENCE $ AGGREGATE $ UMBRELLA FORM OTHER THAN UMBRELLA FORM WORKER'S COMPENSATION STATE OF CALIFORNIA 01101186 UNTIL tSTATUTORY UMITS 7 777 77 EACH ACCIDENT $ AND SELF INSURANCE CAN- DISEASEAK)UCY OMIT S EMPLOYERS'UASIUTY CERTIFICATE #1797-N CELLED DISEASE-EACH EMPLOYEE $ D OTHER #(94).7928 -9504 08101/94 08101/95 $10.ODO,000 EACH I EXCESS LIABILITY OCCURRENCE AGGREGATE DESCRIPTION OF OPEMTtGNS/LOCAnONSNEMICLF.S/SPECIAL ITEMS CERTIFICATE HOLDER, ITS OFFICERS, BOARDS, COMMISIONS, AGENTS AND EMPLOYEES ARE ADDITIONAL INSUREDS AS THEIR INTEREST(S) MAY APPEAR AS RESPECTS THE MAINTENANCE, OPERATION AND INSTALLATION OF CABLE TELEVISION SYSTEMS. 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: KEVIN MURPHY MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE CITY HALL LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR 3300 NEWPORT BLVD., POI BOX 1768 NEWPORT BEACH, CA 92663 LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHOTMD REPRESENTATIVE CertifiFEcate of Ipsurance TNIBCERTIFiCATE IS ISSUED ASA MATTER OF INFOOON ONLY ArFCONRS NO RIGHTSUPON YOU THE CE.RTIF #HOLDER THIS CERTIFICATE, IS NOT AN INSURANCE POLICV AND DOES NOT AMEND, EXTEND.OR ALTER L COVERAGE AFFORDED BY THE POLICIES LISTED BELOW. This is to Certify that COMMUNITY CABLEVISION/THE IRVINE CO. THE PROVIDENCE JOURNAL COMPANY 75 FOUNTAIN STREET PROVIDENCE, RI 02902 Name and f-- address of Insured. r , Is, at the issue date 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 OF POLICY EXP. DATE POLICY NUMBER LIMIT OF LIABILITY WORKERS COMPENSATION 1/01/94 WC1 -11J- 029910 -323 WC2 -111- 029910 -173 WC2 -111- 029909 -063 COVERAGE AFFORDED UNDER WC LAW OF THE FOLLOWING STATES: MA CA AZ,CT, DE, DC, FL,GA, IL, IN, KY,MI,NM,NY,NC,SC,VA EMPLOYERS LIABILITY Bodily Injury By Accident 500,000 Accident Bodily Injury By Disease Policy 500,000 Limit Bodily Injury By Disease 500,000 Each GENERAL LIABILITY General Aggregate - Other than Products/Completed Operations ❑ OCCURRENCE. Products /Completed Operations Aggregate ❑ CLAIMS MADE Bodily Injury and Property Damage Liability Per N/A Occurrence Personal and Advertising Injury Per Persord r Organ'aalion Other Other AUTOMOBILE LIABILITY Each Accident - Single Limit B. I. and P.D. Combined ❑ OWNED ❑ NON -OWNED N/A Each Person ❑ HIRED Each Accident or Occurrence I Each Accident or Occurrence OTHER N/A ADDITIONAL COMMENTS THIS CERTIFICATE VOIDS AND SUPERCEDES CERTIFICATE DATED 6 /18/93 LOCATION OF OPERATIONS: CATV OPERATIONS SPECIAL NOTICE -OHIO: ANY PERSON WHO, WITH INTENT TO DEFRAUD OR KNOWING THAT HE IS FACILITATING A FRAUD AGAINST AN INSURER, SUBMITS AN APPLICATION OR FILES A CLAIM CONTAINING A FALSE OR DECEPTIVE STATEMENT I$ GUILTY OF INSURANCE FRAUD. NOTICE OF CANCELLATION: (NOT APPLICABLE UNLESS A NUMBER OF DAYS IS ENTERED BELOW.) BEFORE THE STATED EXPIRATION DATE THE COMPANY WILL NOT CANCEL OR REDUCE THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNTIL AT LEAST 30 DAYS NOTICE OF SUCH CANCELLATION HAS BEEN MAILED TO: Liberty Mutual Insurance Group CITY OF NEWPORT BEACH, CA OFFICE OF CITY MANAGER CERTIFICATE NEWPORT BEACH; CA HOLDER AUTHORIZED REPRESENTATIVE ATTN: KENNETH J. PALING I I 8/18/93 WESTWOOD, MA L_ DATE ISSUED OFFICE Tra cen ticate is execu!ed by LIBERTY MUTUAL INSURANCE GROUP as respects such'msuraace as a aHorderl by Those COmpanles BS 772L ISSUE DATE (MM/DD/YY) Cr N. 'R74 I. E"...... 8/0S/93 PRODUCER 4 IHIS CERTIFICATE[$ ISSUED AS A MATTER Of INPURMAJIUN ONLY AND Marsh & McLennano Incorporated CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEN. D, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE One old Stone square POLICIES B Providence, RI 02903 COMPANIES AFFORDING COVERAGE COMPAY LETTER N A AETNA CASUALTY & SURETY CO. COMPANY S. IN S UREDCOMMUNITY CABLEVISIONZ THE IRVINE COMPfir The Providence Journal Company 75 Fountain Street COMPANY C LETTER Providence, RI 02902 COMPANY D LETTER COMPANY E LETTE R THIS IS TO CERTIFY THAT THEPOLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POUCY PERIOD INDICATED, NOTWITHSTANDING ANY REOUIREMENT. TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE 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 pOUCy EWcjw DATE (MM/DD/YY) POLICY EMRATION DATE (MM/DD/YY) LIMITS A A GIMERAL UABUN 07 GL 5006061 SUA 8/01/93 8/01/94 GENERAL AGGREGATE $ 2000000 PRODUCTS-COMP/OP AGG. 6 1000000 COMMERCIALGENERALUABILITY MADE FXJOOCUR. .1 '=CLAIMS PERSONAL & ADV. 11,1JURY S 1000000 EACH OCCURRENCE S 1000000 OWNERS .$ CONTRACTORS PROT. FIRE DAMAGE (Any � fire) 1000000 MED. EXPENSE (AM onepe ) 6 5000 A 'AUTOMOBLE LIABLITY D7 FJ 999173 SUA 8/01/93 8/01/94 COMBINED SINGLE X ANY AUTO LIMIT $ 1000000 BODILY INJURY $ ALL OWNED AUTOS SCHEDULED AUTOS (Per person) BODILY INJURY $ HRED AUTOS NON-OWNED AUTOS 4,k (Per aa:ldenq GARAGE LIABILITY j(;2 AUG In Au PROPERTY DAMAGE S EXCESS UIUSUTY CIRfz'iQK EACH OCCURRENCE $ AGGREGATE S MBRE LA FORM UMBRELLA CPIQ�F NE NO I BUI STATUTORY UNITS ""f*' OTHER THAN UMBRELLA FORM WORKEWS COLVENSAIM EACH ACCIDENT $ AND DISEASE -POLICY LIMIT $ DISEASE-EACH EMPLOYEE $ EMPLOYM LIABILITY OTHER DESCRIPTION OF OPEMTIONSADCATIONS/WHKMn/WECIAL,"WM CITY OF NEWPORT BEACH, CA IS ADDED AS ADDITIONAL INSURED WITH REGARDS TO NAMED INSUREDS ACTIVITIES AS RESPECTS CATV OPERATIONS. SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE o. CITY OF NEWPORT BEACH, CA EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO OFFICE OF CITY MANAGER MAIL3 -0 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE ATTN: KENNETH J PALINO s LEFT. BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBUGATION OR NEWPORT BEACH, CA LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTAIVIE .- , ®Marsh & McLennan, Incorporated • One Old Stone. Square Providence; RI 02903 -7104 Telephone 401 421 5530 Telefax 401 421 4761 MARSH & MCLENNAN August S, 1993 Re: CERTIFICATE OF INSURANCE PROVIDENCE JOURNAL COMPANY Enclosed please find a certificate of insurance for Providence Journal Company evidencing the renewal information for General Liability, Automobile Liability and /or Umbrella Liability. Should you have any questions regarding the enclosed, please feel free to call. Sincerely, �C: ane King ccount Assistant Enclosure cc: Mark Altieri, Providence Journal Company Certificate of Insurance O r CNV E"i JV Is IMF 1 Ft1P I-- This is to Certify that p afro COMMUNITY CABLEVISION /THE IRVINE COMPANY NThee F 2 4 i T lT THE PRO VIDENCE JOURNAL COMPANY NSTY cur MANGO VT L 75 FOUNTAIN STREET K64EWPORI Ell PROVIDENCE, RI 02902 d Lis, at'the issue bate of this certificate, insured by the Company under the polfcy(ies) listed belene by the listed policy(les) is subject to all their terms, exclusions: and conditions and is not altered by any requirement, term or condition of any contractor other document with respect to which this certificate may be issued. TYPE CERT. EXP. DATE* LIMIT OF E) CONTINUOUS POLICY OF POLICY ❑EXTENDED NUMBER LIABILITY POLICY TERM COVERAGE AFFORDED UNDER W C EMPLOYER'S LIABIL ITY LAW OFTNF FOLLOWING STATES. Bodily Injury By Amaenl WORKERS, 500, 0 D Ea. Ace 01/01/94 WC2- 111- 029910 -173 CA Bbmry Injury SyDcease COMPENSATION WC2- 111 - 029909 -063 AZ,CT,DE,DC,FL,GA,IL 500,000 Per Limn IN,KY,MI,NM,NY,NC,SC BQtldy glary By Doeese VA 500,000 Ea. Person Generai Aggregate -Other man ProaoctsrCoa:pleteo Operabons 2,000,0.00 Produco(Compleied Operations Aggregate 1,000,000 J Q Bodily ro)ury antl Propeiay Damage Gabany cc W 1,000,000 per occunenee z Cw7 El CLAIMS MADE Personal one Aavearsmg Injury 1, 000,000 per person/ Q J PFLPp poiE 08/01/93 TB1 -111- 029910 -082 o :ganumion Other C) W J 2 E OCCURRENCE O U SPECIAVEXCL. ENDORSEMENTS O H ®OWNED 1,000,000 Each Accurent- Swore Limit - B.Land P.D. Combined Each Person J 08/01/93 AS1 -111- 029910 -292 D ED QQ ® NON -OWNED AS1- 111 - 029910 -092 Each Acciden: Each Accident M ©HIRED AS1- 111 - 029910 -222 or Occurrence or Occurrence CC SPECIAL PROVISIONS: CITY OF NEWPORT BEACH, CA IS AN ADDITIONAL INSURED WITH THE i RESPECT TO COMMUNITY CABLEVISION /COPLEY COLONY OPERATIONS. 0 O LOCATION(S) OF OPERATIONS & JOB # (It Applicable) DESCRIPTION OF OPERATIONS: CATV OPERATIONS If the certificate expiration date is continuous or extended term, you will 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. SPECIAL NOTICE - OHIO: ANY PERSON WHO, WITH INTENT TO DEFRAUD OR KNOWING THAT HE IS FACILITATING A FRAUD AGAINST AN INSURER, SUBMITS AN APPLICATION OR FILES A CLAIM CONTAINING A FALSE OR DECEPTIVE STATEMENT IS GUILTY OF INSURANCE FRAUD. NOTICE OF CANCELLATION: THE COMPANY WILL NOT TERMINATE OR REDUCE THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNLESS 10 DAYS NOTICE OF SUCH TERMINATION OR REDUCTION HAS BEEN MAILED TO F_ CITY OF NEWPORT BEACH, CA OFFICE OF CITY MANAGER CERTIFICATE NEWPORT BEACH, CA HOLDER ATTN: KENNETH J. PALINO L Liberty.Mutuat Insurance Group I AUTHORIZED REPRESENTATIVE 11/19/92 Westwood, MA 02090 mm —I DATE ISSUED OFFICE "is ..cartts, e jecuteEL, rn l MUrJAUNSURANCE GROUP as'esliedS s.tcr nsura e as n atfordso by 'hose Compar-es BS171_ Tlansamenea . '' *Transamerica Insurance Company Insurance Services P.O:. Box 6300 Woodland Hills, CA 91365 F CITY OF NEWPORT BEACH ATTN: CITY CLERK 333 NEWPORT BLVD. NEWPORT, CA 92659 L NHEREAS, on or about the 5th cloy of November Insurance Company as Surety executed its Notice of Cancellation BOND No. 5240-76-43 P 664 860 990 J A.D. 1982 Non - Exclusive Franchise Transamerica Bond in the penal sum of Fifty Thousand ($9n nnn nnT_ on behalf of Community, Cablevision Company(Subsidiary 'of The .___ having on office of as Obligee, and Irvine , CA as principal, in favor of City of Newport Beach WHEREAS, said bond, by its terms, provides that the said Surety sholl have the right to terminate its suretyship thereunder by serving notice of its election so to do upon the said 06ligee, and WHEREAS, said Surety desires to take advantage of the terms of said bond and does hereby elect to terminate its liability n accordance with the provisions thereof. Notice is hereby given that the bond or policy-described above is hereby cancelled or terminated effective CANCELLATION OR TERMINATION DATE in accordance with its terms and conditions. Signed and sealed this 25th day of November A.D., Bond # 5240 76 43 IRVINE CO. Cert. Mail # P 664 860 990 (COMMUNITY CABLE COMPANY) Your notice of concellotion as set forth received. , A-D., 19 —. Dote: Dupli cote is to be returned to: Transamerica Insurance Company / cOMP MNV By arolyn Potes , Attorney-iii-Fact ACKNOWLEDGMENT We have arranged to concef said bond effective 3 do c: 568 1-73 TTransamerica Insurance Services P.O. BOX 6300. WOODLAND HILLS, CA 91365 (818) 596 =5762 Transcripts from the BY-Laws Transamer Insurance Company Authority Of Signers For Surety 1, the undersigned,. Secretary of TRANSAMERICA INSURANCE COMPANY, do hereby certify. That the following have been duty appointed Resident Officers or Attorneys -in -Fact of TRANSAMERICA INSURANCE COMPANY with full power and authority, for and on behalf of the Company as surety, to execute and deliver and affix the seal of the Company thereto, any and all bonds, undertakings, and any instrument given in connection therewith or pertaining thereto. and to bind TRANSAMERICA INSURANCE COMPANY thereby. 1 do further cefUty that the authority of the Resident. Officers or Attorneys -in -Fact, hereinafter listed, is in full force and effect. PLACE Woodland Hills, CA Woodland Hills, CA RESIDENT VICE' PRESIDENTS W.G. Freeman Carolyn Potes RESIDENT SECRETARIES W.G. Freeman Carolyn Potes ATTORNEYS IN FACT W.G. Freeman Carolyn Potes i do further -certify that the following transcript from Article VII of the By -taws of TRANSAMERICA. INSURANCE COMPANY is a just, . true and correct copy of the original thereof and is still in full force and effect: ARTICLE VII SECTION' 30. All policies, bonds, undertakings, certificates of insurance, cover notes, recognizances, contracts of indemnity, endorsements, stipulations, waivers, consents of suroties, se-Insurance acceptances or agreements, surety and co -surety obliga- tions and agreements, .underwriting undertakings, and all other instruments pertaining to the insurance business of the Corporation, shall be validly executed when signed on behalf of the Corporation by the Resident, any Vice President or by any other officer, . employee, agent orAttorneydn -Fact authorized to so sign by (i) the Board of Directors, (ii) the President, (ill) any Vice President, of (iv) any other person empowered by the Board of Directors, the President or any Vice Resident to give such authorization; pro- vided that all policies of insurance shall also bear the signature of. a Secretary, which may be a facsimile, and unless manually signed by the President or a Vice Resident, a facsimile signature of the Resident. A facsimile signature of a former officer shall be of the same validity as that of an existing officer. The affixing of the corporate seal shall not be necessary to the valid execution of any instrument, but any person authorized to execute or attest such instrument may affix the Corporation's seat thereto.. This certification is signed and seared by facsimile under and by the authority of the following resolution adopted by the Board of Directors of TRANSAMERICA INSURANCE COMPANY at meeting duly called and held on the 27th day of December, 1962: RESOLVED, that the .signature of the Secretary and the seal of the Company may be affixed to any Certificate . of appointment of Resident Officers or Attorneys -in -Fact by facsimile, and any such Certificate bearing such facsimile signature seal shall be valid and binding upon the Company when so affixed, and in the future, with respect to any bond, undertaking of contract of surety ship or any document or notice .pertaining thereto, . to which it is attached. Given under my hand and the seat of the Company, _ this 25th day of November 19 92 Sccr <cary 1723.A 12 -85 State of California County of Los Angeles ss.' On this 23rd day of October , in the year 1992 before me a Notary Public personally appeared Martha J. Chase personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument as the Attorney-in-Fact of Safeco Insurance Company of America r and acknowledged to me that he (she) subscribed the name of Safeco insurance Company of America thereto as surety, and W (her) own name as Attorney -in -Fact. I •� .ECO INSURANCE COMPANY OF AMERICA ERAL INSURANCE COMPANY OF AMERICA FIRST NATIONAL INSURANCE COMPANY `SAFEC® OF AMERICA HOME OFFICE: SAFECOPLAZA .SEATTLE, WASHINGTON 98185 Bond No.4151531 -3401 -002 Premiums $438..00 FRANCHISE BOND KNOW ALL MEN BY THESE PRESENTS: That we, COMMUNITY CABLEVISION COMPANY , a corporation incorporated under the laws of the State of California , as Principal and SAFECO INSURANCE COMPANY OF AMERICA, a corporation organized under the laws of the State of WASHINGTON., and authorized to transact the business of a surety in the State of CALIFORNIA , as Surety, are held and firmly bound unto the City AkXWt&k of NEWPORT BEACH , a municipal corporation in the State of CALIFORNIA , in the sum of ONE HUNDRED THOUSAND AND NOIIOO ($100.000.00) , lawful money of the United States, for which payment, well and truly to be made, we bind ourselves, jointly and severally, firmly be these presents. WHEREAS, this Bond Is executed to comply with the terms of the ordinance dated November 12, 1991. L;abLr,viaivN Uompany to within the City (B€rbugh' to transmit and distribute line - coaxial antenna system for television receivers Newport Beach nting a franchise to uu"muN"' use the public street and places electrical impulses through an open located within said City of NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if the Principal shall well and truly observe and fulfill each term and condition of the franchise granted by the above mentioned ordinance then this obligation shall be null and void. In case of any breach of condition of the above mentioned franchise', the amount thereof shall be recover- able from the Principal and Surety by said City $maosgh for all damages proximately re- sulting from the failure of the Principal to well and faithfully observe and perform any provision of said franchise or any provision of said ordinance. This Bond is Effective beginning October 1, 1992 and ;EYWi?fig continuous until nannPllP[l This Bond may be terminated or cancelled by the Surety by Thirty (30) days prior notice in writing from the Surety to Principal and to said City of Newport Beach , such notice to be given by certified mail. Such termi- nation 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 23rd day of October 19 92 COMMUNITY By Countersigned by: not required By= Chase COMPANY ley +' • POWER OsAFECO INSURANCE COMPANY OF AMERICA HOME OFFICE SAFECO PLAZA OF ATTORNEY SEATTLE, WASHINGTON 99185 SAFECO No. 4762 KNOW ALL BY THESE PRESENTS: That SAFECO INSURANCE COMPANY OF AMERICA. a Washington corporation, does hereby appoint - ---- ----- ------ MARTNA S. CHASE, Los Angeles, CA .------- -- ----- --- --- -- - - - - - -- its true and lawful attomey(s) -in -fact, with full authority to execute on behalf of the company fidelity and surety bonds or undertakings and other documents of a similar character issued by the company in the course of its business; and to bind SAFECO INSURANCE COMPANY OF AMERICA thereby as fully as if such instruments had been duly executed by its regularly elected officers at its home office.. IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA has executed and attested these presents this 25th day of CERTIFICATE Extract from the By -Laws of SAFECO INSURANCE COMPANY OF AMERICA: 1921 —. "Article V, Section 13. — FIDELITY AND SURETY BONDS ... the President, any Vice President, the Secretary, and any Assistant Vice. President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as attorneys -in -fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the company in the course of its business ... On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or undertaking of the company, the seal, or a facsimile.. thereof, may be impressed or affixed or in any other manner reproduced; provided; however, that the seal shall not be necessary to the validity of any such instrument or Undertaking." Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA adopted July 28, 1970. "On any certificate executed by the Secretary or an assistant secretary of the Company setting out,. (il The provisions of Article V, Section 13 of the By -Laws, and Iii) A copy of thee. power -of- attorney appointment, executed pursuant thereto, and .(iii). Certifying that said power -of- attorney appointments in full force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be a facsimile thereof" I, Boh A. Dickey, Secretary of SAFECO INSURANCE COMPANY OF AMERICA, do hereby certify that the foregoing extracts of the By -Laws and of a Resolution of the Board of Directors of this corporation, and of a Power of Attorney issued pursuant thereto, are true and correct, and that both the By -Laws, the Resolution and the Power of Attorney are still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this... 23rd day of October 19.92 S -1300 e5 3/86 POINTED IN U.S.A. ' State of California County of Los Angeles ss. On this 23rd day of October in the year 1992 before me a Notary Public personally appeared Martha J. Chase personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument as the Attorney -in -Fact of Safeco Insurance Company of America , and acknowledged tome that be (she) subscribed the name of Safeco Insurance Company of America thereto as surety, and (her) own name as Attorney -in -Fact. My Bond No. 4151531-3401-004 Premium: $750.00 Effective: October 1, 1992 ANOWALL BY THESE PRESENTS, That we, COMMUNITY CABLEVISION COMPANY as Principal, and the SAFECO; INSURANCE COMPANY OF AMERICA, a corporation organized under the laws of the State of Washington, and authorized to transact the business of surety in the State of CALIFORNIA as Surety, are held and firmly bound unto CITY OF NEWPORT BEACH in the just and full sum of FIFTY THOUSAND AND NO1100 Dollars($ 50,000.00 for which sum; well and truly to be paid, we bind ourselves, our heirs, executors, administrators, successors and assigns., jointly and severally; firmly by these presents. Sealed with our seals, and dated this 23rd day of October '1992 THE CONDITION OF THIS OBLLGAT IONIS SUCH, That, WHEREAS, the Principal desires to give the Obligee a bond issued in accordance with the City of Newport Beach Ordinances 91 -15, 1891 and 91-42, the bond's sole purpose being the protection of subscriber deposits; NOW, THEREFORE, If the said Community Cablevision Company shall comply in all respects with the subscriber protection guarantee in accordance with franchise agreement and City Ordinances 91 -15, 1891 and 91 -42 then this obligation to be void, otherwise, to remain in full force and effect. This bond may be canceled by the Surety by sending of notice in writing to the Obligee, stating when, not less i than thirty days thereafter, liability hereunder shall terminate as to subsequent acts or omissions or the PrincipaL. COMMUNITY CABLEVISION COMPANY (Seal) Principal By: QS (Seal) Curtis J Blankenbiller, VP & Cofftrg6pal m._ (Seal) f Principal SAFECO 4.e PANY O �ICA By ZZ A orn y -in -Fact S -1227 R211/84 / ,/ PRINTED IN U.S.A. i FECO INSURANCE COMPANY OF AMERICA - NERAL INSURANCE COMPANY OF AMERICA. FIRST NATIONAL INSURANCE COMPANY SAFECO OF AMERICA HOME OFFICE: SAFECO PLAZA SEATTLE, WASHINGTON 98185 Bond No. 4151531-3401-004 Premium: $750.00 Effective: October 1, 1992 ANOWALL BY THESE PRESENTS, That we, COMMUNITY CABLEVISION COMPANY as Principal, and the SAFECO; INSURANCE COMPANY OF AMERICA, a corporation organized under the laws of the State of Washington, and authorized to transact the business of surety in the State of CALIFORNIA as Surety, are held and firmly bound unto CITY OF NEWPORT BEACH in the just and full sum of FIFTY THOUSAND AND NO1100 Dollars($ 50,000.00 for which sum; well and truly to be paid, we bind ourselves, our heirs, executors, administrators, successors and assigns., jointly and severally; firmly by these presents. Sealed with our seals, and dated this 23rd day of October '1992 THE CONDITION OF THIS OBLLGAT IONIS SUCH, That, WHEREAS, the Principal desires to give the Obligee a bond issued in accordance with the City of Newport Beach Ordinances 91 -15, 1891 and 91-42, the bond's sole purpose being the protection of subscriber deposits; NOW, THEREFORE, If the said Community Cablevision Company shall comply in all respects with the subscriber protection guarantee in accordance with franchise agreement and City Ordinances 91 -15, 1891 and 91 -42 then this obligation to be void, otherwise, to remain in full force and effect. This bond may be canceled by the Surety by sending of notice in writing to the Obligee, stating when, not less i than thirty days thereafter, liability hereunder shall terminate as to subsequent acts or omissions or the PrincipaL. COMMUNITY CABLEVISION COMPANY (Seal) Principal By: QS (Seal) Curtis J Blankenbiller, VP & Cofftrg6pal m._ (Seal) f Principal SAFECO 4.e PANY O �ICA By ZZ A orn y -in -Fact S -1227 R211/84 / ,/ PRINTED IN U.S.A. i 1 r • POWER OSAFECO INSURANCE COMPANY OF AMERICA OF ATTORNEY HOME OFFICE SAFECO PLAZA SEATTLE, WASHINGTON 98185 SAFECO No. 4762 KNOW ALL BY THESE PRESENTS: That SAFECO INSURANCE COMPANY OF AMERICA, a Washington corporation, does hereby appoint -------- -------- MARTHA J. CHASE, Los Angeles,, CA.----------------------------- its true and lawful attorneys) -in -fact, with full authority to execute on behalf of the company fidelity and surety bonds or undertakings and other documents of a similar character issued by the company in the course of its business, and to bind SAFECO INSURANCE COMPANY OF AMERICA thereby as fully as if such instruments had been duly executed by its regularly elected officers at its home office. IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA has executed and attested these presents this 25th day of july , 1991 —. CERTIFICATE Extract from the By -Laws of SAFECO INSURANCE COMPANY OF AMERICA: "Article V, Section 13. — FIDELITY AND SURETY BONDS_ , . the President, any Vice President, the Secretary, and any Assistant Vice. President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as attorneys -in -fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the.. company in the course of its business. On any instrument making orevidencing such appointment, the signatures may be affixed by facsimile. On any .instrument conferring such authority or on any bond or undertaking of the company, the seal, or a facsimile thereof, may be Impressed or affixed or in any other manner reproduced;. provided,.. however, that the seal shall not be necessary to the validity of any such instrument or undertaking" Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA adopted July 26, 1970. "On any certificate executed by the Secretary or an assistant secretary of the Company setting out; (I) The provisions of Article V, Section 13 of the By-Laws, and in) A copy of the power -of- attorney, appointment, executed pursuant thereto, and (iii) Certifying that said power -of- attorney appointment is in full force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be -a facsimile. thereof." I, Boh A. Dickey, Secretary of SAFECO INSURANCE COMPANY OF AMERICA, do hereby certify that the foregoing extracts of the fay -Laws and of a Resolution of the Board of Directors of this corporation; and of a Power of Attorney issued pursuant thereto, are true and correct, and that both the By-Laws, the Resolution and the Power of Attorney are still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this 23rd October 1992 S-1300 R5 3/86 PRINTED IN U.S.A. Certificate of ,Insurance THIS CERTIFICATE IS ISSUED AS A MATTER OF INFOR TION ONLY AND CONFERS NO RIGHTS UPON YOU 'THE CERTIFI HOLDER. THIS CERTIFICATE IS NOT AN INSURANCE ' POLICY AND DOES NOT AMEND, EXTEND, OR At OVERAGE AFFORDED BY THE POLICIES LISTED BELOW. LIrF111 COMMUNITY CABLEVISION/ THR IRVINE COMPANY The Providence Journal Company 75 Fountain Street Providence, RI 02902 Name and LIBERTY Address of MUTUAL a Insured is, at the date 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 rasoact to which this cartifinate may ha issuad. IF THE CERTIFICATE EXPIRATION DATE IS CONTINUOUS' OR EXTENDED TERM, YOU WILL 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. SPECIAL NOTICE • OHIO: ANY PERSON WHO, WITH INTENT TO DEFRAUD OR KNOWING THAT HE IS FACILITATING A FRAUD AGAINST AN INSURER, SUBMITS AN APPLICATION OR FILES A.. CLAIM CONTAINING A FALSE OR DECEPTIVE STATEMENT IS GUILTY OF INSURANCE FRAUD. NOTICE OF CANCELLATION: (NOT APPLICABLE UNLESS A NUMBER OF DAYS IS ENTERED BELOW.) BEFORE THE STATED EXPIRATION DATE THE COMPANY WILL NOT Liberty Mutual CANCEL OR REDUCE THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNTIL Insurance Group . AT LEAST DAYS NOTICE OF SUCH CANCELLATION HAS BEEN MAILED TO,. CITY OF NEWPORT BEACH CERTIFICATE 3300 NEWPORT BLVD. HOLDER NEWPORT BEACH, CA 92659 -1768 D AT 7 -31 -92 WESTWOOD, NA This certificate is executed by LIBERTY MUTUAL INSURANCE GROUP as respects such insurance as is afforded by Those Companies BS 772R6 CERTIFICATE EXP. DATE TYPE OF POLICY nCONTINUOUS EXTENDED POLICY NUMBER LIMIT OF LIABILITY K] POLICY TERM WORKERS COMPENSATION 1/1/93 WC2- 111 - 029910 -172 WC2 -111- 029909 -062 COVERAGE AFFORDED UNDER WC LAW OF THE FOLLOWING STATES: CA S,CT,DE,DC,FL,CA,IL N,RY,MI,NM.,NY,NC,SC EMPLOYERS LIABILITY Ihr n ury By Aoddem Each 500,000 Aeddent Bodily Injury By Dueaze Ponq 500,000 Limit A SoliryIy: M'u ey Disease 50a %(7O Each Perean GENERAL LIABILITY General Ass ate - OCier than PloouctsiCompletea Operatiatp 2 , 000, 00 CLAIMS MADE �OOO .W had Operations Aggregate l I� �yy�I �ao� l .:ODU 'WUU Property Damage Liability Par OttAlRarke RETRO DATE Personal and Adv chirp Injury Par Perow [�pCCURRENCE 8/1/93 TEl -111- 029910 -082 Organization ref' Dom' AUTOMOBILE LIABILITY Each Accident - Single Umit- 1,000,000 B.I. and PD. Combined Each Parson [PWNED [IIGN -OWNED 8/l/93 AS1- 111 - 029910 -092 Each :Aaddentor Ocamence lip RED AS1- 111 - 029910 -222 Ear ¢pp®cidentorOcarren� OTHER CITY OF NEWPO T BEACH IS AN DITIONAT, INSURED THEIR INTERESTS: 2 +F++y2 %`Q t ADDITIONAL COMMENTSyppS.. IF THE CERTIFICATE EXPIRATION DATE IS CONTINUOUS' OR EXTENDED TERM, YOU WILL 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. SPECIAL NOTICE • OHIO: ANY PERSON WHO, WITH INTENT TO DEFRAUD OR KNOWING THAT HE IS FACILITATING A FRAUD AGAINST AN INSURER, SUBMITS AN APPLICATION OR FILES A.. CLAIM CONTAINING A FALSE OR DECEPTIVE STATEMENT IS GUILTY OF INSURANCE FRAUD. NOTICE OF CANCELLATION: (NOT APPLICABLE UNLESS A NUMBER OF DAYS IS ENTERED BELOW.) BEFORE THE STATED EXPIRATION DATE THE COMPANY WILL NOT Liberty Mutual CANCEL OR REDUCE THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNTIL Insurance Group . AT LEAST DAYS NOTICE OF SUCH CANCELLATION HAS BEEN MAILED TO,. CITY OF NEWPORT BEACH CERTIFICATE 3300 NEWPORT BLVD. HOLDER NEWPORT BEACH, CA 92659 -1768 D AT 7 -31 -92 WESTWOOD, NA This certificate is executed by LIBERTY MUTUAL INSURANCE GROUP as respects such insurance as is afforded by Those Companies BS 772R6 Certificate of Insurance THIS CERTIFICATE IS ISSUED ASA MATTER OF INFO N ONLY AND CONFERS NO RIGHTS UPON YOU THE CERTIFf OLDER. THIS CERTIFICATE IS NOT AN INSURANCE POUCYAND DOES NOT AMEND, EXTEND, OR ALTERT OVERAGE. AFFORDED BY THE POLICIES LISTED BELOW, This is to Certify that " iOMMUNITY CABLEVISION/ THE IRVINE COMPANY LIBERTY THE PROVIDENCE JOURNAL COMPANY o MUTUALm 75 FOUNTAIN STREET of PROVIDENCE, RI 02902 Iew�r d. is, at: the issue date of this certificate, insured by the Company under the policy(es) listed betow:'Tlh ASurance 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 contractor other document with respect to which this certificate may be issued. TYPE CERT. EXP.DATE* LIMIT OF ❑CONTINUOUS POLICY OF POLICY [D EXTENDED NUMBER LIABILITY 91 POLICY TERM COVERAGE AFFORDED UNDER W. C EMPLOYER'S LIABILITY LAW'OFTHE FOLLOWING: STATES; Bodily Injury By Accident 500,000 Ea,Aee: WORKERS' 1/1/93 C2 -11.1- 029910 -172 CA Bodily Injury By Disease :COMPENSATION C2 —ill- 029909 -062 CT,DE DC,FL,CG,IL, `'� � 500,000 PaLl:imil IN,KY,MI,NM,NY,NC,SC, Bodllylniury By Disease A 500,000 Ea. Person General Aggregale-Olher than Products /Completed Operations 2,000,000 ProductslCom feted Operations Aggregate 1,00000 J C Bodily injury and Properly Damage Llabnity cc LU 1,000,000 per occurrence W} El CLAIMS MADE Personal and Advertising Injury ei erson/ CJ RerROOar. 1 000 ,000 organization Omer Q m F3 a 8/1/93 B1 -111- 029910 -082 g OCCURRENCE O U SPECIAL/EXCL. ENDORSEMENTS UU Each Accident — Single ,Limit — B. I. and P.D. Combined p l Kl OWNED 1 -111- 029910 -292 Each Person Q.¢ KINON -OWNED 8/1/93 1 -111- 029910 -092Each FSSI-111-0,.29910-222 Acddent Each Accident 91 HIRED or Occurrence or Occurrence SPECIAL PROVI'.SIONS: CITY OF NEWPORT BEACH, CA. IS AN ADDITIONAL INSURED WITH THE RESPECT TO COMMUNITY CABLEVISI'ON/ COPLEY COLONY OPERATIONS. 2 0 O LOCATION(S) OF OPERATIONS & JOB .er (If Applicable) DESCRIPTION OF OPERATIONS CATV OPERATIONS `If the certificate expiration date is continuous or extended term, you will 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. SPECIAL NOTICE - OHIO: ANY PERSON WHO, WITH INTENT TO DEFRAUD OR KNOWING THAT HE IS FACILITATING A FRAUD AGAINST AN INSURER, SUBMITS AG APPLICATION OR FILES A CLAIM CONTAINING A FALSE OR DECEPTIVE STATEMENT IS GUILTY OF INSURANCE FRAUD. 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: Liberty Mutual CITY OF NEWPORT BEACH, CA �, n Insurance. Group .OFFICE. OF CITY 'MANAGER CERTIFICATE NEWPORT BEACH, CA AUTHORIZED RE_PRESEENTATIVE. HOLDER ATTN: KENNETH J. PALINO 8- .20 -92 WESTWOOD,MA L DATE ISSUES OFFICE This certificate is executed by LIBERTY MUTUAL INSURANCE GROUP as respects such insurance as is afforded by Those Companies SS 772L Certificate of Insurance THIS'CERTIF I CATE IS I IS UED ASA MATTER OF IN FON ONLY AND CONFERS NO RIGHTS UPON YOU THE CERTIFI *OLDER THIS CERTIFICATE YS NOT AN INSURANCE POLICY AND DOES NOT AMEND, EXTEND.ORALTER VERAGE AFFORDED BY THE POLICIES LISTED BELOW. This is to Certify that LIBERTY Fffi JOURNAL COMPANY � M LIBERTY 75 FODO'l� STN'S Name and ♦ -c address of YE09IDKIIIIIIIII Ell 02902 Insured. L J Is a! the issue - date of this certificate, insured by the Company undenhe oollcy(ies) listed below. The Insurance afforded by the listed policy(Jes) Is subject to all their terms exclusions anc conditions and is not altered oyariv reRwrem rlterm or conditiHn or any contract or other document with respect to. Which this certificate maybe issued. TYPE CERT.EXP.DATE' LIMIT OF ❑CONTINUOUS POLICY OF POLICY :1EXiENDEC NUMBER LIABILITY XPOLICYTERM COVERAGE AFFORDED UNDER WC EMPLOYER' S LIABILITY LAW OFTHE F„LLOWING- . STATES . Botllly Inluiy By Accld ©nt WORKERS' 111193 VC2- 111 - 029910 -172 CA 500.000 EaA °e, 'snarly 6m,uy By Disease V=- 111 - 029909 -062 Az.cT,DEsDCfnf ". II COMPENSATION 11�ICr,l [�NY,NC: f 500a000 anS.umil Bddily Irjay By Ciorae. VA 5O0,000 E. Person General Aegreaete 01fier than Products?Gompleled operations 2,000,000 Prod uduaCompec ed Operations Agpissed 1.000.000 J Bodily injury and Property Camaga LiabrLty W1 f OOO, 000 per ncamrence, Z ad h ❑ CLAIMS MADE Personal and Aayahismg Injury 1 000 OOO ,arpersont Q f f organ zatwri voTRG Dlrie, other m Uq wJ OCCURRENCE 8/1/92 YS1- 111 - 029910 -081 0 U SPECIAVEXCL_ rENYDORSEMENTS. f f Each Accident Singin hurnit —B. Land P.r). Combined ach Person DOWNED Dec ILXNON -OWNED 8/1/92 AS1- 111 - 029910 -091 QQ L4HIRED ABI -111- 029910 -221 or Accident or Occ,rreCCe or Occurrence or Occurrence SPECIAL PROVISIONS: CITY OF NEWPORT BEACH, CA IS AN ADDITIONAL INSURED WITH RESPECT G = TO COMMUNITY CABLEVISIONJCOPLY COLONY OPERATIONS O LObAi ICN(S) OF OPFRATONS AJOB # (I`Applicable) DESCRIPTION OF OPERATIONS'. CATV OPERATIONS 'If the certificate expiration date is continuous or extended term, you will 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. SPECIAL NOTICE- OHIO: ANY PERSON WHO. WITH INTENT TO DEFRAUD OR KNOWING THAT HE IS FACILITATING A FRAUD AGAINST AN INSURER, SUBMITS AN APPLICATION OR FILES A CLAIM CONTAINING A FALSE OR DECEPTIVE STATEMENT IS GUILTY OF INSURANCE FRAUD. NOTICE OF CANCELLATION: THE COMPANY WILL NOT TERMINATUFOOR REDUCE THE RENEWAL CERTIFICATE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNLESS DAYS NOTICE OF SUCH TERMINATION OR REDUCTION HAS BEEN MAILED TO: Liberty Mutual Insurance Group. F CITY OF NEWPORT BEACH, `CA CERTIFICATE QA�iw�RUT 'LLS- TA 'IESENTA�,•iivr�-- HOLDER JANUARY 1, 1992 WORCzsTn, MA DATE ISSUED. .OFFICE This certificate is executed by LIBERTY MUTUAL INSURANCEG ROUP be respects such inemence as is afforded ry Those Companies BS 7725 R4 Certificate of Insurance THIS CERTIFICATE IS SSUEC -S A MATTER OF IN On Oh 1 AND CONFE S NO RI I.TS UPON t OL HE ?'ffC _RTl ICA E(IS NOT AN INSURANCE . I POLICY AND DOES NO AMEND _XTENC N . OR ALTER IVER.GE AF, By H. PO:.I CI S.IS r r__OV __ This is to Certify t1tat LIBERTY Community Cablevision /Copley Colony p 7�� T PROVIDENCE JOURNAL COMPANY M V 1 VAL. 75 FOUNTAIN ST. Name and PROVIDENCE:; RI 02902 • 4( address of Incur eC Is. .ad he Issue bate of this cartroate insured by me Company Unger Ine notio'hesl listed balaa, I e s� a - oec' -, the listed Pcl¢yfi s) _ suolect 10 all their terms, exclusions and ConrLbons and k not alteretl by ary reou remerit. lerrn or common o' any cc .: ac o ^:ne, oocument with respect to ,nirm this certificate may be issued. I TYPE I I. CERT. EXP. DATE' I LIMIT OF C CONT1NVOUS ICY OL P L I 1 City of Newport Beach is additional insured but only as respects Community Cablevision / Copley Colony operations. - Or OPS I^N _ s JOS 1 a DESCRY. cl 1: ine. can It Kate exo�raft on. oat :s con iI n on US Ur ex:e one Iwm. yD L. y.1 be Rol ill e c GOrerana "_ Ier. !p, or I a c DIE sre :ore the Ca n if I Ca le rs Di a t ion - ^.2:e. However. yOL 'I nc. De -Q Ifle u:c LaI' ,'tE ee':h I1, Y __!�•a9E. _ - 1 Ihcr ha Vc'...t 1. NOTICE OF CANCELLATION: THE COMPANY WILL NOT TERMINATE OR REDUCE In.ur.in l.r•wp THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNLESS_._30, DAYS NOTICE OF SUCH TERMINATION OR REDUCTION HAS BEE:wMAILED TO- City of Newport Beach, CA �j �; P.O. Box 1768 /Z, oLDEa -. Necaport Beach, Ca 92659 1768 ^� - 8 -4 -89 WESTON, MA 02193 -2298 •. .♦ :mec 1.. !•� . I HS = 0• i ORDINANCE NO. 1196 AN ORDINANCE OF THE CITY OF NEWPORT BEACH GRANTING TO COMMUNITY CABLEVISION COMPANY A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE A COMMUNITY ANTENNA TELEVISION SYSTEM WITHIN SAID CITY The City Council of the City of Newport Beach does ordain as follows: SECTION 1. Definitions. Wherever in this ordinance the following words or phrases are used, they shall have'the respective meanings assigned to them in the following definitions; and words or phrases not defined in this section which are defined in any franchise document shall have the same meaning in this ordinance assigned to them in such fran- chise document, unless the context in which they are used shall clearly indicate a different meaning: (a) "City" shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. (b) "Council" shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) "Person" shall mean any individual, firm, partner- ship, association, corporation, company or organization of any kind. (d) "Grantee" shall mean the Community Cablevision Com- pany, a division of The Irvine Company, a West Virginia corporation, 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 esigned, 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 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 above and below any public street, road, highway, freeway, lane,. 2. CID 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 the Community Cablevision Company, a division of The Irvine Company, a West Virginia corpo- ration, 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: . 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 corner of said Block 96; thence Southeasterly along the Southwesterly line of said Block 96 to the Easterly corner of Tract No. 673 as per map recorded in Book 20, Pages 17 and 18 of Miscellaneous Maps, said corner being also an angle point in the boundary of the Harbor View Annexation to the City of Newport Beach as established by City Ordinance No. 896; thence Northeasterly along said boundary to an angle point in the boundary of Annex- ation No. 57 to the City of Newport Beach as estab- lished by Resolution No.. 6203, dated August 9, 1965, of the City of Newport Beach Council and amended by Resolution No. 6247, dated November 8, 1965, said point being the Southwesterly terminus of that certain course described therein as 'North 44° 56' 20" East 114.30 feet "; thence generally Northeasterly and North - westerly along said boundary to the Easterly right of way line of MacArthur Boulevard, 100.00 feet wide as described in the deed recorded in Book 1047, Page 557 of Official ..Records; thence generally Northerly along said Easterly right of way line being also the boundary of Annexation No. 50 to the City of Newport M 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 .of the City of Newport Beach and no other purposes whatsoever. SECTION 3'. Nonexclusive Grant. The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use of said streets, alleys, public ways and places to any person at any time during the term of this franchise. SECTION 4. Term of Franchise. The term of this franchise shall be fifteen (15) years and shall commence at 12:01 P.M. on the effective date of this ordinance, provided that the Grantee has filed written notice of acceptance in accordance with the requirement of Section 10 of this ordinance. SECTION 5. Inclusion of Franchise Documents. All of the franchise uu..:iltctli D 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. 4 9 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 agrees that it will reimburse City for any costs and expenses incurred by City in defending against any such claim or claims, including attor- neys' fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, travel and living expense; Grantee further agrees that upon demand of the City it will appear in and defend any and all suits, actions, or other legal proceedings whether judicial, quasi - judicial, administrative, legislative, or otherwise,, brought by third persons or duly constituted authori- ties against or affecting the City, its officers, boards, commis- sions, agents or employees and arising out of or pertaining to the exercise or enjoyment of such franchise, or the granting thereof by the City; the foregoing obligations shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other security required hereunder; provided that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, demand, action or suit for monetary damages without first giving the other ten (10) days' prior written notice of its intention to do so. SECTION 7. Right of City to Adopt Additional Rules and Regulations. The right is hereby reserved to the City to adopt, in 5. addition to the provisions contained in this ordinance and in any other applicable ordinances and resolutions, such additional regu- lations as it shall determine to be necessary or convenient in the exercise of the police power. SECTION 8. Prohibited Activities of Grantee. Grantee shall be prohibited from directly or indirectly doing any of the following: (a) Engaging in the business of selling at retail, leasing, renting, repairing or servicing of television sets, radios or other receiving apparatus, or any part or component thereof. (b) Providing any repair service to its subscribers, for a fee or otherwise, which extends beyond the connection of its service and the determination by Grantee of the quality of its signal to its subscribers. (c) Soliciting, referring, or causing or permitting, the solicitation or referral of any subscriber to any specific named persons, firms or corporations engaged in any business which Grantee is prohibited from engaging in by the provisions hereof. (d) Transmitting or presenting any programs or events for which a separate and distinct charge is made to the subscribers in the manner commonly known and referred to as "pay television ", and the Grantee shall not maintain or operate on any television set a coin box or any other device or means for the collection of money for individual programs. SECTION 9. Transfer of Franchise. This franchise shall not be sold, transferred, assigned, leased or otherwise disposed of in whole or in part by voluntary or involuntary sale, merger, consolidation, or otherwise, without the prior consent of the City Council expressed by resolution, and then upon such terms and conditions as the Council may pre- scribe. No sale, transfer or assignment shall be effective until 6. 1. the vendee, assignee or lessee has filed in the office of the City Clerk an instrument, duly executed and approved as to form and content by the City Attorney, reciting the fact of such transfer, sale, assignment or lease, accepting the terms of the franchise, and agreeing to perform all the conditions thereof, including any additional conditions required by the City Council. SECTION 10. Acceptance of Franchise. This franchise shall not become effective for any pur- pose unless and until written acceptance thereof shall have been filed with the City Clerk; and such written acceptance shall be in form and substance as shall be prescribed by the City Attorney and shall be and operate as an acceptance of each and every term, condition and limitation contained herein, or otherwise specified by ordinance or resolution of the City Council. Said written acceptance shall be filed by the Grantee not later than 12:01 P.M. of the fifteenth (15th) day next following the date of the adoption by the Council of this ordinance; and, in default of the filing of such written acceptance as herein required, Grantee shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance of any such Grantee shall not be re- ceived by the City Clerk, and such Grantee shall have no rights, remedies, or redress in the premises, unless and until the City Council shall, by resolution, determine that such acceptance be received or filed, and then upon such terms and conditions as the Council may impose. SECTION 11. Acceptance Fee. The Grantee shall, upon the acceptance of this franchise pay to the City, in consideration of the granting of this fran- chise, the sum of $2,000. SECTION 12. Annual Franchise Fee. The Grantee shall pay annually to the City during the 7. . • ! a life of this franchise for the privilege of operating a CATV system under this franchise a sum equivalent to three per cent (3 %) of the annual gross receipts derived from its operations within the City. SECTION 13. Effective Date This ordinance shall become effective 30 days from and . after the date of its adoption; provided, however, that the fran- chise hereby granted shall not become effective unless and until the Grantee files written acceptance thereof in the manner specified in Section 10 of this ordinance and delivers to the City all bonds and insurance policies required to be furnished in accordance with the requirements of Chapter 5.44 of Title 5'of the Newport Beach Municipal Code. SECTION 14. Publication. This ordinance shall be published once in the official newspaper of the City. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 12th day of December , 1966, and was adopted on the 27th day of December. , 196 6, by the following vote, to wit: AYES, COUNCILd•1EN: Parsons, Rogers, Marshall,, Forgit. Shelton NOES, COUNCILMEN: None ABSENT COUNCILMEN: Cook, Gruber ATTEST:� Actiag t C c MM Vice Mayor 8. AFFIDAVIT OF PUBOCATION NEWPORT HARBOR ENSIGN STATE OF CALIFORNIA County of Orange J I, ........ .ARVQ ... R HAA.k'A ...................... being first duly sworn, and on oath depose and say that I am the printer and publisher of the Newport Harbor Ensign, a weekly newspaper printed and published in the City of Newport Beach, County of Orange, State of California, and that........ LT. @.fir_ @.. No.v....1195 ...__ ..... --- .... _ ..................................... _ .. .......... .. ...... ......... .of which copy attached hereto is a true and complete copy; was printed and published in the regular issue(s) of said newspaper, and not in a supplement, ..;...1..:........ consecu- tive times: to-wit the issue(s) of (Signed).... ... Z) Subscribed and sworn to before me this.6t) day of - Januar.Y. ......... ., Is_67. I,I hsJG t E,sii,a.l'� a •'" Notary Public in and f4*the County of Orange, State of California. My COMMISSION EXPIRES NOV. 29, 1964 y $ 4 iz S7 ATE OF CALIFORNIA ll GQUNTY OF ORANGE jSS. CITY OF NEWPORT BEACH JJJJJJ 11 A LAGIOS Actin I . ........ ..... . LAU......R ... °-------. ----•• ---... .......................... ..-- - .....---.._......� City Clerk,. of the City of Newport Beach, California, do hereby certify that the foregoing.... Ordinance No - 1196 ._•._was duly and regularly adopted, passed, and approved by the City Council of the City of Newport Beach, California, at a regular meeting A said City Council held at the regular meeting place thereof, on the 27 th _ :day, of _December. 19661. by the following vote: AYES: COUNCILMEN ...... Rogers, Parsons, Marshall, Forgit, Shelton NOES: COUNCILMEN .....None ABSENT: COUNCILMEN. ... .-CF-rf r ..... Gook . Dated this 1Qth. .......... day of =- January_ . - - -- . - . _.:....... 14._67 .............. City Clerk of the. City of Newport Beech, ate of C.I&mia AFFIDAVIT OF PLISCATION • NEWPORT HARBOR ENSIGN STATE OF CALIFORNIA t County of Orange f I, ....... ARK0.. E. ... HAAr..A ...........:........... being first duly sworn, and on oath depose and say that I am the printer and publisher of the Newport Harbor Ensign, a weekly newspaper printed and published in the City of Newport Beach, County of Orange, State of California, and that ........ Ordinance- _No_.- ._1196 11 ............ ..._......................................................................... of which copy attached hereto is a true and complete copy, was printed and published in the regular issue(s) of said newspaper, and not in a supplement, ....... I ........ . consecu- tive times: to-wit the issue(s) of L e c,,.... 2 9.,., _.19;6 6 (Signed). O- S..s::.11 Subscribed and sworn to before me this._6t?? ... day of ........ Janu ary .............. 196 1.. Note Public in and foethe Coun y of Orange, State of California. h My COMMISSION E 11116 11V. 19, 1917 I" S:r# 9E OF CALIFORNIA l M ? i b_OAIY OF ORANGE }SS. �CIT)! OF NEWPORT BEACH JJJ LAURA LAGIOS Acting I. ...................... ....... :........................... .... ...... ..- ./City'Clerk of the City of Newport Beach, California, do hereby certify that the foregoing... Ordinance .............. No: 1196 ................... was duly and regularly adopted, passed, and approved by the City Council of the City of Newport Beach, California, at a regular meeting of said City Council held at the regular meeting place thereof, on the 27th ... ..... day, of ...... .... 19__66 by the following vote: AYES: COUNCILMEN.... ................... NOES: COUNCILMEN.... None ABSENT: COUNCILMEN ... ..C'ruber�... Cook .... ___.,, ........... Dated this 10th January Iq 67 ........ .......day of. -- ---- City Clerk of the City of Newport Beat fate of California 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 assiggoned to them in the following . defini- tions;and words or phrases not defined in this section which are defined in any franchise document shall have the same meaning in this ordinance as -. signed to them in such frau- chise document, unless the context in which they are used shall clearly indicate a differ- ent meaning. (a) "City" shall mean the City of Newport Beach in its Present incorporated form or to any later recognized, con- solidated, enlarged orreincor- porated form. (b) "Council "shall mean the resent governing body of the City, or any future board con - stitnti in the legislative body of the(::ity. (c) "Person" shall mean any indiyidnal, firm, partnership, association, corporation, com- pany or organization of any tnd. (d) "Grantee" shall mean the Community Cablevision Com- pany, a division of The Irvine Company, a West Virginia cor- poration, . its employees, agents, :successors andassigns. (e) "Community Antenna Television System" or CATV System" shall mean a system of antennae, coaxial cables, wave guides, .poles, wires, an. dergronnd conduits, manholes and other conductors, egnip- ment 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 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) "Snbscribers" shall mean any _person or entity .receiving for any purpose the CATV ser- vice,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 indirectly .from snbscribers or users in payment for CATV services - received within the City. Gross annual receipts shall not include any taxes on ser- vices fnmished by the Grantee imposed directly on any snb- scriber or used by any city, state or other governmental nuit 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 con- struct, maintain and operate its system and shall include any enlargements thereof and .additions t}iereto. 0) "Franchise Documents" shall mean and shall include all of the following: (1) Article .X111 of the Char. ter of the City of .Newport Beach. (2) Chapter 5.43 of 5 of the Newport Beach *pal Code as the same now exists or as it may hereafter be amended -. '(3) Any and all rules and re- gnlations governing the opera- tion 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, hi hway, freeway, lane, path, alley, court, sidewalk, parkway, or right of way whe- ther or not improved, now or hereafter existing as sack throughout the City. SECTION 2. Grant of Fmn. chise. There is hereby granted to the Community Cablevision Company, a division of The Irvine Company, a West Vir- ginia corporation, by the City a nonexelnsive 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 fntnre dedicated for pnblic use in the City, poles, wires, cables, under- ground conduits, manholes and other television conductors, appnrt enances and fixtures necessary or convenient for the maintenance and operation in the City of a community an- tenna television system to transmit television and FM radio signals, within the fran- chise area., described as fol- lows: That portion of Blocks 51, 55, 56, 57, 92. 93, and 96 of Irvine's Subdivision in the City of Newport Beach, Coun- ty of Orange, State of Cali- fornia, as per map recorded in Book. 1, Page 88 of Mis- cellaneons Record Maps in the office of the County Re- corder of said County, de- scribed as follows: Beginning at the West . comer of said Block 96; thence Southeasterly along the Southwesterly line of said Block 96 to the Easterly cor- ner of Tract No. 673 as per map recorded in Book 20, ljages 17 and 18 of Miscel- laneous Maps, said comer being also an angle point in the bonndary of the Harbor View Annexation to the City of Newport Beach as estab- lished by City Ordinance No. 896; thence Northeasterly along said boundary to an angle point in the bonndary of Annexation No. 57' to the City of Newport Beach as established try Resolution No. 6203, dated August 9, 1965, of the City of Newport by Resolution No. 6247, dated November 8, 1965,1said point being the,Sonthwesterly ter- minus of that certain coarse described therein as "North 440 56' 20" East 114.30 feet "; thence generally North- along said boundary to the Easterly ri t of way line. of MacArthur lonlevard, 100.00 feet wide as described in the deed recorded in Book 1047, Page 557 of Official Records; thence generally Northekly along said ;Easterly right of way line being . also the boundary of Annexation No. 50 to the City of Newport Beach . as established by City Ordinance No. 999 to the Southeasterly line of said Block 56; thence. Southwes- terly along said Southeasterly ordinance No. 1196 - page 1 line being also said botiaJary of Annexation No. 50 e. Westerly right of way of said MacArthur Boule.ard; thence Northerly along said Westerly right of way line being also the boundary of the Jamboree Road Annexa- tion to the City of Newport Beach as established by City Ordinance No. 840 to the cen- ter line.. of Palisades Road, 80.00 feet wide, as described in the deed recordedin 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 Rook 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 Southwes- terly line of said Block 55; thence Southeasterly along said Southwesterly line and the Southwesterly line of said Block 93 to the point of begiming The CATV system herein franchised shall be used an operated solely and exclusi- ve the purposes expressly authorized by ordinance of the City of Newport each and no other oses whatsoever.. SECTION 3. Nonexclusive The right to use and occupy an id .streets, alleys, public ways and places for the pur- poses 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 an yy time dur- ing the term of this hanchise,. SECTION 4. Tenn of Fron- chile. The term of this franchise shall be fifteen,05)years and shall commence at 12:01 P.M. on the effective date of this ordinance, provided that the Grantee has filed written no- tice of acceptance in accord - auce' with the requirement of Section 10 of this ordinance. SECTION 5, inclusion. of .Fran chase Documents. All of the franchise docu- ments applicable to this fran- chise are hereby incorporated by reference and made a pan T this ordinance. By accep- tance of this franchise Gran- tee 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. harmless the City, its officers, boards, commissions, agents and em- ployees against and from any and all claims, demands, ac- tions; suits, liabilities and judgments oflevery kind and nature and regardless of the merit of the same, arising out of or related to the exercise or eniovment of this franchise by ties and judgments based upon copyright infringement; Gran- tee further agrees that it will reimburse City for anyy costs and expenses incurred by Cityy in defending against anysuch claim or claims, including at- tomeys' fees, accountant fees, expert witness or consultant fees, court costs, per diem ex- pense, travel and living ex- pense; Grantee further agrees that upon demand of the City it will appear in and defend any and all suits, actions, or other legal proceedings. .rhe- ther 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 em- ployees and arising out of or pertaining to the exercise or enjoyment of such franchise, or the grantingthereof . by the City; the foregoing obligations shall exist and continuewith- out 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 assiggnnme t or lease, accept- ing the s of the franchise, and agrim to perform all the conditions thereof, including any additional conditions re- quired by the City Council. SECTION 10. Acceptance of Franchise. This franchise shall not be- come effective for any .purpose unless and until written ac- ceptance thereof shall.. have been filed with the City Clerki and such written ac cept ante shall be in form and substance as shall be pre- scribed by the City Attorney and shall be and operate asap acceptance of each and every term, condition and limitation contained .herein, or otherwise specified by ordinance or reso- lution 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 fol- lowing the date of the adop- tion by the Council of this or dinance; and, . in default of the filing of such written accep- tance as herein. required. Gran- tee shall be deemed to have rejected and repudiated the same; and thereafter, the ac- ceptance of any such Grantee Regulations, shall not be received by the The right is hereby .reserved Citp Clerk, and such Grantee to the City to adopt, in addi- shall have no rights, remedies, . tionto the provisions contained or redress in the premises,un- in this ordinance and in any less and until the City Coma- other applicable ordinances cil shall, by resolution, de- and resolutions,. such addi- termine that such acceptance tional regulations as it shall be received or filed, and then determine to he necessary or upon such terms and condi- convenient in the exercise ;aI tions as the Council may im- the police power. pose. 8, Prohibited Ac. tivities -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 ser- vice to its subscribers, for a fee or otherwise, which ex- tends beyond the.. connection of its service and the determi- nation by Grantee of the qual- ity of its signal to its sub- scribers. (c) Soliciting, remitting. or causing or permittingg the soli- citation or referral of any sub- scriber to any specific named persons, firms or corporations engaged in any business which Gran tee is prohibited from en- gslim fn by the provisions ereo (d) Transmitting or present- In programs or events for which a separate and distinct charge is made to the sub- scribers in the manner cone- monly known and referred to as "pay television.', and the Grantee shall not maintain or operate on any television set a coin box or my other device or means for the collection of This franchise shall not be sold, transferred, assigned, leased or otherwise disposed of in whole or in part b, or involuntary sale, mer ger, consolidation, or other wise., without the ..prior con- sent of the City Council ex- pres sed by resolution, . and then upon such terms and con - ditions as the Council may prescribe. No sale, transfer or assignment shall be effective until the vendee, assignee or lessee has filed in the office of the City Clerk an instru- ment, duly executed and ap- proved as to form and content by the City .Attorney, reciting the fact of such transfer, sale, SECTION 11. Acceptance Fee. The Grantee shall, upon the acceptance of this franchise, pay to the City, in considera- tion of the granting of this franchise, the sum of $2,000. SECTION 12. Annual Fron- chise Fee. The Grantee shall pay an- nually to the City during . the life of this franchise for the privilege of operating a CATV system under this franchise a sum equivalent to three per cent (3 %) of the annual gross receipts derived from its oper- ations within the City.. SECTION 13. Effective Dare. 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 Sec- tion 10 of this ordinance and delivers to the City all bonds and insurance policies requir- ed to be furnished in accor- dance with the reqquoirements of Chapter 5.44 of Title 5 of the Newport Beach Municipal Code. SECTION 14. Publication. This ordinance - .shall be pub- lished -once in the official newspaper of the City. This ordinance was intro- duced 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 the127th day of December, 1966, by the following vote, to wit: AYES, COUNCILMEN: Rogers, Persons, Marshall, Forgit, Shelton. NOES, COUNCILMEN: None. ABSPNT COUNCILMEN: Gru- ber, Cook. Doreen Marshall Mayor Pro -Tem ATTEST: Laura Lagios Acting City Clerk Publish: Dec. 29, 1966, in the Newport :Harbor Ensign ordinance ,.o. l.ly6 - Yage 2 6 0 ACCEPTANCE OF COXCOM, INCORPORATED NONEXCLUSIVE FRANCHISE WHEREAS, on August 8, 2006, the City Council of the City of Newport Beach adopted Ordinance No. 20 entitled an Ordinance of the City Council of the City of Newport Beach Granting a Nonexclusive Franchise to Provide Cable Television Services within the City of Newport Beach; and WHEREAS, the Charter of the City of Newport Beach, Section 1303, and Ordinance No. 20 provide that any franchise granted shall not become effective until written acceptance is filed by the Grantee with the City Clerk. The acceptance shall be filed within fifteen (15) days after the adoption of Ordinance No. 20 ; and WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise. NOW THEREFORE; CoxCom, Inc., a Delaware corporation, hereby accepts the grant of the Nonexclusive Franchise granted by Ordinance No. 20 and hereby agrees to comply with the provisions of the Newport Beach Charter, Chapter 5,44, Ordinance No. 20 and the Franchise Agreement in all its operations pursuant to the grant of the Franchise. DATE: August 14, 2006 O K ( O M FRANCH E BY: NAME: Thoma Leone EM CITY CLERKS'S VERIFICATION OF ACCEPTANCE I, LaVonne M. Harkless, City Clerk, certify that the above acceptance of Franchise was received by me on u1% 2006, at • CITY CLERK LIFO 11 0 FRANCHISE TO PROVIDE CABLE TELEVISION SERVICES BETWEEN THE CITY OF NEWPORT BEACH, CALIFORNIA AND COXCOM, INCORPORATED gTHIS AGREEMENT AND FRANCHISE (the "Franchise ") is made and entered into this m day ofUgil 2006, by and between CoxCom, Incorporated, a Delaware corporation dba Cox Commtimcatlons Orange County (hereinafter "Cox ") and the City of Newport Beach, California ( "City "). 1. Authority. This Franchise has been granted and approved pursuant to the provisions of Title 5, Business Licenses and Regulations, Chapter 5.44, Cable. Communications Franchise, of the Municipal Code of the City of Newport Beach ( "NBMC "). This Franchise is in the form of a nonexclusive franchise, contract and agreement. 2. Definitions. A. All terms used in this Franchise Agreement shall be as defined herein and in Title 5, Business Licenses and Regulations, Chapter 5.44, Cable Communications Franchise, of the NBMC. The provisions of the NBMC and the wordings, specifications, and requirements in this Franchise shall constitute the terms of a franchise as authorized in the NBMC in the form of an agreement to permit use of the public rights -of -way and to provide cable television services by Cox. For the purposes of this Franchise, the following words, terns, phrases, and their derivations have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, and words in the singular number include the plural number. "Complaint" means a dispute in which a Subscriber notifies Cox of an outage or degradation in picture quality, billing or other issue pertaining to the Subscriber's Cable Service which is not corrected during the initial telephone or service call. "Control" or "Controlling Interest" means actual working control in whatever manner exercised, including, without .limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of the Cable System or of Cox. A rebuttable presumption of the existence of Control or a Controlling, Interest shall arise from the beneficial ownership, directly or indirectly, by any Person or group of Persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of twenty percent (20 %). or more of any Person (which Person or group of Persons is referred to as "Controlling Person "), or being a party to a management contract to manage the Cable System in lieu of Cox. "Gross Annual Revenue" or "Gross Annual Receipts" or "Gross Receipts" means all revenue, as determined in accordance with Generally Accepted Accounting Principles, which is received, directly or indirectly, by Cox and by each Affiliated Person from or in connection with the distribution of any Cable Service, and any l • Cox -CNB Franchise Agreement Page 2 other Service which may, under now or then applicable federal law; be included in the Cable Act definition for the purpose of calculating and .collecting the maximum allowable franchise fee, for operation of the System, whether or not authorized by any Franchise, including, without limitation, leased or access channel revenues received, directly or indirectly, from or in connection with the distribution of any Cable Service. It is intended that all revenue collected by Cox from the provision of Cable Service over the System, whether or not authorized by the Franchise, be included in this definition. Gross Annual Revenue also specifically includes any revenue received, as reasonably determined from time to time by the City, through any means which is intended, to have the effect of avoiding the payment of compensation that would otherwise be paid to the City for the Franchise granted. Gross Annual Revenue also includes any bad debts recovered. Gross Annual Revenue also includes all advertising revenue which is received directly or indirectly by Cox or any Affiliated Person from or in connection with the distribution of any Service over the System or the provision of any Service - related activity in connection with the System. Gross Annual Revenue does not include: (i) the revenue of any Person to the extent that said revenue is also included in the Gross Annual Revenue of Cox; (ii) taxes imposed by law on Subscribers which Cox is obligated to collect, and (iii) amounts which must be excluded pursuant to applicable law. B. Terms Not 'Defined — Words, terms, or phrases not defined in the NBMC or herein shall first have the meaning as defined in the Cable Act, and then the special meanings or connotations used in any industry; business, trade, or profession where they commonly carry such special meanings. If those special meanings are not common, they will have the standard definitions as set forth in commonly used and accepted dictionaries of the English language. 3. Scope, of Franchise. A. Cox is authorized and obligated to construct; reconstruct, and operate the System within the public streets and rights -of -way. This authority includes the privilege to use Cox's cable television system in the Service Area, as defined in Section 14 below, (hereinafter the "System ") to provide Cable Service to customers in the Service Area located in all residential dwellings, commercial structures and industrial structures. B: This Franchise Agreement solely and exclusively creates, defines, and limits the legal rights and obligations between City and Cox and does not; in any way, obligate City to take any action, actions or ,refrain from 'taking any action; or actions, to or in relation to any third party. 4. Payments. Regular Percentage • Franchise Fee. From and after the Effective Date, Cox shall pay a Franchise Fee; in quarterly installments, in a sum equal to five percent (5 %) of the Gross Cox -CFB Franchise Agreement Page 3 Annual Revenue. The Franchise Fee shall be paid to the City within forty -five (45) days after the close of the calendar quarter. Cox expressly acknowledges and agrees that: A. Except for the payments expressly required by this Section 4, none of the payments or contributions made by, or the services, equipment, facilities, support, resources, or other activities required to be provided or performed by Cox pursuant to this Agreement are franchise fees chargeable against the compensable payments to be paid to City by Cox pursuant to this Section 4; and B. As applicable, except for the compensation payments expressly required by this Section, each of the payments or contributions made by, or the services; equipment, facilities, support, resources; or other activities to be provided by Cox; are voluntary and are not "franchise fees" within the meaning of the Cable Act (47 U.S.C. §542.(g)(2)); and C. The compensation payments due from Cox to City pursuant to this Section shall take precedence over all other payments, contributions, services, equipment; facilities, support, resources, or other activities to be paid or supplied by Cox pursuant to this Franchise; and D. The compensation and other payments to be made pursuant to this Franchise Agreement 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 Cox or any Affiliated Person shall be required to pay to the City or to any state or federal agency or authority, all of which shall be separate and distinct obligations of Cox and Affiliated Persons; and E. Neither Cox nor any Affiliated Person shall have or make any claim for any deduction or other credit of all or any part of the amount of the compensation or other payments to be made pursuant to this Franchise 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 Cox or any Affiliated Person is required to pay to City or other governmental agency; and F. Neither Cox nor any Affiliated Person shall apply or seek to apply all or any part of the amount of the compensation or other payments to be made pursuant to this Franchise 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, each of which shall be deemed to be separate and distinct obligations of Cox and Affiliated Persons; and G. Neither Cox nor any Affiliated Person shall 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 • Cox -CNB Franchise Agreement Page 4 utilities and cable operators or their services) as a deduction or other credit from or against any of the compensation or other payments to be made pursuant to this Franchise, each of which shall be deemed to be separate and distinct obligations of Cox and Affiliated Persons; and H. City acknowledges that, during the term of this Agreement, Cox may offer to its subscribers, at a discounted rate, a bundled or combined package of certain cable services that are subject to the franchise fee 'referenced above, in Section 4, and other services that are not subject to that fee. With regard to such bundled or combined services, the following provisions are applicable: During the term of this Agreement; if Cox offers to individual subscribers cable services subject to the franchise fee that are bundled or combined with non -cable services that are not subject to the franchise fee, then the revenue from those bundled or combined services must be allocated on the basis of proportionality, as follows: 1.. The percentage that the price for all bundled services is discounted from the established retail rates for the individual services, as those rates are advertised by Cox in its marketing materials or published rate cards, will be prorated across all services in the bundled package, subject to the adjustment referenced below in Section 4(H)(2). Cox shall provide the City with the all requested information regarding the charge for each individual service for any bundled package within ten (10) days of the City requesting this information. 2. The revenue derived by Cox from services that are subject to mandatory tariff rates imposed by the California Public Utilities Commission, or any similar governmental rate- setting authority, will be deducted from the aggregate revenue to determine the revenue that is subject to the franchise fee. By way of example, Cox may offer a bundle of voice, video, and data services for a flat fee of $75, where the aggregate retail rate of those services when purchased on an individual basis would equal $100. If there is no service in that bundled package subject to a mandated tariff rate, Cox would apply a 25 percent discount to each individual service. Thus, if the established retail rate for video service was then $50, Cox would recognize revenue in the amount of $37.50 and would pay a franchise fee on that amount. 3. Cox will not structure the pricing of any bundled or combined services so as to intentionally or unreasonably cause a reduction in the Gross Annual Revenue against which franchise the City may impose fees or other proportionately derived taxes, surcharges, or fees. 4. If City reasonably determines that Cox has unlawfully, inequitably, or contrary to Section 4(H) allocated Gross Annual Revenue between video services and non -video services in calculating franchise fee payments, Cox -CNB Franchise Agreement Page 5 then the parties will meet upon advance notice from the City to discuss the allocation methodology. ,If the parties cannot resolve the dispute within a reasonable period of time, then the parties will submit the matter to a mutually agreeable third party for non - binding mediation. The parties will share the cost of the mediation equally. If the mediation is not successful, or if the parties cannot mutually agree upon a mediator, then either party may file an action in a court of competent jurisdiction or pursue any other remedies available under the law or this Agreement. 1. If any franchise payment or recomputed amount is not made on or before the dates specified above in Section 4, Cox shall pay as additional compensation the greater of the following: 1: An interest charge, computed from the applicable due date, at an annual rate equal to the prevailing commercial prime interest rate in effect upon the due date, plus three percent (3 %). 2. In addition to any late payment made pursuant to this section, if a payment is late by sixty (60) days or more, Cox shall pay a sum of money equal to five percent (5 %) of the amount due in order to defray reasonable additional documented and itemized expenses and costs incurred by City as a result of such delinquent payment. 3. No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this Franchise, or for any other performance by Cox of an obligation hereunder. 4. Payments of compensation made by a Cox to the City pursuant to the provisions of this Franchise are in addition to, and exclusive of, any and all authorized taxes, business license fees, and other fees, levies, or assessments now in effect or subsequently adopted in accordance with state and federal law. Letter of Credit. A. Pursuant to Section 5.44.06.0(B)(1)(a) of the NBMC, within thirty (30) days of the Effective Date of this Franchise, Cox shall post an irrevocable standby Letter of Credit in the amount of ($17.25 per current subscriber but not less than One Hundred Thousand Dollars ($100,000). The Letter of Credit provider shall have, at a minimum, a credit rating of A issued by Moody's or Standard & Poor's. The letter of credit shall incorporate wording approved by City enabling City to draw such sums from time to time as the City may find necessary to satisfy any material default of Cox or to meet any payment due City under or in connection with the NBMC or this Franchise, upon ten (10) days' written notice to the Letter of Credit provider. The Letter of Credit shall provide in substance that, upon written notice by City of a material default or failure to make a payment due to ® Cox -CNB Franchise Agreement Page 6 City' under or in connection with the NBMC or this Franchise, City may draw upon the Letter of Credit without any offset, contingencies or conditions of any kind. This Letter of Credit shall provide that it may not be revoked or amended without City's prior written approval. Cox shall obtain prior approval by the City of the wording of the Letter of Credit, the form of the Letter of Credit, and the Letter of Credit provider. Such approval shall not be unreasonably withheld. B. The Letter of Credit requirement may, in the unilateral discretion of the City, be increased by up to three times its original amount if there is an assignment, transfer, and/or change of control of the Franchise and /or Cox. C. The Letter of Credit required by this Section satisfies the financial security requirements of this Franchise Agreement and is in lieu of a Security Fund or Faithful Performance. Bond pursuant to Section 5.44..060(B)(1)(a) of the NBMC. 6. Insurance. Within ten (10) days of the Effective Date of this Franchise, Cox, at its sole cost and expense, for the full term of this contract (and any extension thereof), shall obtain and maintain at minimum all of the following insurance coverage: A. Tunes of insurance and Minimum Limits. The coverage's required herein may be satisfied by any combination of specific liability and excess liability policies. 1. Workers' Compensation and Employers Liability Insurance in conformance with the laws of the State of California (not required if Cox has no employees). 2. Cox's vehicles, including owned, non -owned (e.g., owned by Cox's employees and used in the course and scope of employment), leased or hired vehicles, shall each be covered with Automobile Liability insurance in the minimum amount of two million dollars ($2,000,000) combined single limit per accident for bodily injury and property damage. 3. Cox shall obtain and maintain comprehensive or commercial General Liability Insurance coverage in the aggregate annual amount of two million five hundred thousand dollars ($2,500,000) combined single limit, including bodily injury, personal injury, and broad form property damage. Such insurance coverage shall include, without limitation: a. Contractual liability coverage adequate to meet Cox's indemnification obligations under this Contract; and b. A cross - liability clause. C. Cox shall obtain and maintain Slander /Libel/Defamation Liability Insurance in the aggregate annual amount of one million dollars ($1,000,000). ® Cox -CNB Franchise Agreement Page 7 B. All required Automobile Liability insurance and Comprehensive or Commercial General Liability Insurance shall contain the following endorsement as a part of each policy: "The City of Newport Beach is hereby added as an additional insured as respects the operations of the named insured pursuant to cable television franchise as granted by the City and said insurance shall specifically cover the acts and omissions of Cox and the acts and omissions of its employees, agents and subcontractors in the performance of work hereunder. C. Within thirty (30) days from Effective Date of this Franchise, Cox shall furnish proof to City that a satisfactory insurance policy for all insurance required by this Franchise so that the City can ensure that the insurance is in place. The insurance policies for vehicles shall be in effect prior to usage and the City may, from time to time, reasonably increase the required amount of said insurance so long as said increased coverage is reasonably available at reasonable prices. D. The insurance required of Cox pursuant to this Franchise shall be primary and no insurance held by City shall be called upon to contribute to a loss under this coverage. E. All insurance policies shall provide that in the event of material change, reduction, or cancellation or non - renewal by the insurance carrier for any reason, not less than thirty (30) days written notice will be given to City by registered mail of such intent to cancel, materially change, reduce or not renew the coverage. An authorized agent of such insurance carrier shall provide to City, on such schedule as is requested by City, a certification that all insurance premiums have been paid and all coverage's are in force. If for any reason Cox fails to obtain or keep any of such insurance in force, City may (but shall not be required to) obtain such insurance, in which event Cox shall promptly reimburse City its premium cost therefor plus interest at the City's portfolio rate until paid. F. All insurance shall be contracted through companies licensed to do business in California. G. Any deductible or self- insured retentions must be declared to and approved by City. At the option of City, insurer shall reduce or eliminate such deductible or self - insured retention as respects City, its officials, officers; employees and agents, or Cox shall procure a bond guaranteeing payment of losses and related investigations, claims, administration and defense expenses. 7. Defense and Satisfaction of Claims. A. Cox shall, at the sole cost and expense of Cox upon demand by City, defend City, its officers, boards, commissions or employees, in any and all suits, actions, or OCox -CNB Franchise Agreement Page 8 other legal proceedings, whether judicial, quasi . judicial, administrative, or otherwise arising out of the negligent or willful acts or omissions of Cox, its employees, subcontractors and agents. Where Cox is required to provide legal services to City under this paragraph, and chooses to utilize joint counsel, the parties shall make a good faith effort to cooperate and agree upon litigation strategy and implementation thereof. In the event that Cox's litigation strategy or choice of legal counsel create a conflict of interest, or result in inadequate representation to protect the City's interests and separate counsel is necessary for the representation of City, City may obtain separate legal counsel chosen by City at Cox's cost and expense provided, however, that if City obtains separate legal counsel as set forth above, Cox is only obligated to pay an hourly amount for legal services which does not exceed one hundred percent (100 %) of the highest hourly rate that City has paid for legal services within the twenty -four (24) month period prior to obtaining legal services as provided in this paragraph. City shall submit to Cox on regular basis statements for attorney's fees which shall be paid to City within sixty (60) days, of Cox's receipt of said statement. B. Cox shall cause to be paid and satisfied any judgment, decree, or order rendered, made, or issued against Cox, City, its officers, boards, commissions, or employees, and hold City harmless therefrom, arising out of Cox's negligent or willful acts or omissions in connection with the construction, operation, maintenance, or other activities in relation to Cox's cable television system including, but not limited to, damages arising out of copyright infringement, defamation, personal and property liability; and antitrust liability, whether or not said damages are compensatory or punitive, provided, however, Cox shall not be required pursuant to this paragraph to hold City harmless for actions relating to programming decisions outside of Cox's control. Such indemnity shall exist and continue without reference to the amount of any bond; policy of insurance, deposit, undertaking, or other assurance; provided, however, City may not enter into any compromise or settlement which imposes any obligation on Cox without Cox's consent, which consent shall not be unreasonably withheld, and Cox shall not make or enter into any compromise or settlement of any claim, demand, causes of action, suit, or other proceedings which settlement involves anything other than the payment of money by Cox without contribution by City, without first, obtaining the written consent of City, which consent shall not be unreasonably withheld. C. The indemnification provided pursuant to paragraphs 7(A) and 7(B) above shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in those paragraphs, regardless of whether or not City has prepared, supplied, or approved the plans and /or specifications for the operation or regardless of whether or not any insurance policies shall have been determined to be applicable to any of such damages or claims for damages. • *Cox-CNB Franchise Agreement Page 9 8. Liquidated Damages and Other Remedies. A. Damages for Violation of Technical Standards, Customer Service Standards and Other Violations. In addition to, and without limiting the damages for delays as specified in Section 4 of this Franchise, City may impose any of the other liquidated damages described below for the violations and in the amounts described below: Technical Standards violations. If more than ten percent (10 %) of the locations tested pursuant to FCC regulations fail to meet the FCC technical standards, City may impose liquidated damages in an amount equal to two hundred dollars ($200) per clay, if Cox does not cure the violation in accordance with Section 8(B)(1) below. 2. Customer Service, Violations. If Cox violates, in any material way, any of the customer service standards specified in the NBMC or this Franchise, City may impose liquidated damages in the amount of two hundred dollars ($200) per violation per day if Cox does not cure the violation in accordance with Section 8(B)(1) below. 3. Other Violations. For all violations and breaches specified in the Franchise or the NBMC, the City may impose liquidated damages in the amount of two hundred dollars ($200) per day if Cox does not cure the violation in accordance with Section 8(B)(1) below. 4. Reduction of Damages and Letter of Credit. If City does not impose any damages on Cox for delays in violation of technical standards, violation of customer service standards or for other violations in the four (4) year period which shall commence on the date which is sixty (60) days from the Effective, Date of this Franchise, after such four (4) year period, the penalties contained in Sections 8(A)(1) and 8(A)(2) above shall be reduced to one hundred fifty dollars ($150) per day per violation; and the letter of credit contained in Section 5 above shall be reduced to seventy -five percent (75 %) of the original amount thereof, provided however, that the original, penalties and the original amount of the letter of credit, as increased as allowed herein upon transfer, assignment or change of control, shall be immediately reinstated if (a) City imposes two (2) penalties on Cox in any twelve (12) month period, and/or (b) if Cox assigns, sells, leases or otherwise transfers this Franchise or control of the System. This entire, paragraph shall immediately cease to •Cox -CNB Franchise Agreement Page 10 have any force or effect if City imposes a penalty or penalties on Cox within the four (4) year period which commences sixty (60) days from the Effective Date of this Franchise Agreement. B. Payment of Damages. 1. Cure. In, the event that City has reason to believe that Cox has :failed to comply with any material provision of this Franchise or the NBMC and therefore desires to impose damages on Cox as stipulated above and/or in the NBMC City shall notify Cox in writing of the provision or provisions which City believes may be in default as well as the applicable cure period. Cox shall, upon receipt of said Notice: a. Cure the alleged violation within the cure period provided by the NBMC, or if no cure period is provided, within five (5) working days of said notice. In the event that Cox does not correct said violation within the applicable cure period, said liquidated damages may be imposed from the date of original violation; or b. Respond to City in writing during the cure period contesting City's assertion of violation and providing such information or documentation as may be necessary to support Cox's position and/or request an extension of the cure period. The decision to extend the cure period shall be within the sole discretion of the City; however such request for an extension of the cure period shall not be unreasonably withheld by City. 2. Appeal and Payment. In the event Cox fails to respond to said notice of violation, or to cure the violation within the applicable cure period, or provide an explanation for failure to cure acceptable to City, City or its designee shall schedule a hearing no sooner than ten (10) days after written notice to Cox of the expiration of the cure period and the scheduling of said hearing. Cox shall be provided an opportunity to be heard at such hearing, including the right to present evidence, cross - examine witnesses, and be represented by counsel. Within thirty (30) days after said hearing, City shall determine whether or not Cox is in violation and submit written findings of facts supporting such determination. The hearing described above may be conducted, at City's selection, either before the City Council or before an administrative officer or commission selected by the City Council. In the event that said hearing is not held before the City Council, Cox shall possess the right to appeal said determination to the City Council within ten (10) days of issuance of the statement of decision and findings of fact. The City Council shall decide said appeal pursuant to a hearing at which • •Cox -CNB Franchise Agreemeni Page /I Cox has an opportunity to be heard and the right to present evidence, examine witnesses and be represented by Counsel. Cox shall have the right to appeal the City Council's decision to a court of competent jurisdiction within ninety (90) days of any final decision by the City Council. In the event a court orders repayment of said liquidated damages from City to Cox, interest on such amounts shall be included at the rate paid by the Local Agency Investment Fund to the City for City Investments. All liquidated damages shall be due and owing thirty (30) days after the final decision by either the City Council or the hearing officer in the event of no appeal to the City Council. The aforesaid assessment may be levied directly against the letter of credit and collected by City thirty (30) days from date said damages are due and owing. Such assessment shall not constitute a waiver. by City of any other right or remedy it may have under the Franchise or under applicable law including, without limitation, its right to recover from Cox such additional damages, losses, costs and expenses, including reasonable attorneys' fees, as may have been suffered or incurred by City by reason of or arising out of such breach of the Franchise. Nothing in this paragraph is intended to waive, modify or otherwise affect Cox's rights under the NBMC, this Franchise, or any applicable 'law, except for the specific procedures expressly provided herein, including without limitation the right to judicial review of the legal rights and obligations of the parties with respect to each other; Cox's right to challenge the decision of City under applicable legal standards, and/or any issue of performance or breach by either party to this Franchise. C. Validity of Liquidated Damages. The parties acknowledge that it would be impractical or extremely difficult to fix actual damages in the case of Cox's default, and that the amount of damages specified above is a reasonable and complete estimate of City's damages. Cox recognizes that Cox's prompt development and offering of cable television service for which penalties can be imposed is of critical importance to City. City: (Initials D Sole Financial Remedy. Cox: y -Jh (Initials) No financial penalties will be applied pursuant to Ordinance or other similar document for the same offenses to which the liquidated damages apply. •Cox -CNN Franchise Agreement Page 12 Cox Support for Development of Technology and Programming. Cox shall provide the following support for the purpose of technology development and implementing non- commercial public, benefit uses of the Cable System. The provision of the support items listed herein shall be considered as binding commitments of Cox within the terms of this Franchise, and if not provided, shall subject Cox to applicable remedies and penalties for violations of the Franchise. Cox shall provide the following support: A. Channel Capacity Requirements. Cox Support for Public, Educational or Government Access "PEG Access" 1. Cox shall designate three (3) channels for the exclusive use of the City ( "PEG channels "). The PEG channels shall be under the exclusive management and editorial control of the City and shall not be shared with other cities. The City may designate a representative, such as a non - profit entity, to use and administer to said channels, with all of the attendant rights and obligations provided to the City hereunder. In the event Cox is required by federal law, regulations, or otherwise to change the channel number of a PEG channel, Cox shall provide thirty (30) days advance notice to the City and its customers. Should Cox desire to change the channel number of 'a PEG channel that is in use by a PEG user within the criteria set forth in Section 9(A)(2) for any other reason; Cox shall provide the City with the reason for change at least ninety (90) days prior to the proposed change, advertise the change to customers on its website; in at least three (3) bill messages prior to the change, and in a television spot announcement that Cox shall carry on its system for at least six weeks prior to the change. Cox shall also reimburse the City for its actual costs for reprinting any materials such as program guides or other promotional materials occasioned by the change in an amount not to exceed $7;500.00 for its costs of remarketing the channel. Cox shall make available additional PEG channels designated for use exclusively by the City pursuant to the following criteria: a. The initial governmental channels must be in use and programmed with non- commercial PEG programming, of which no more than ten (10) hours can be character generated programming, during at least 80% of the weekdays for at least 80 % of the time during any consecutive 6 -hour period for ten (10) consecutive weeks. b. The initial public and educational channel must be in use and programmed with non - commercial and at least 50 % locally produced programming, of which no more than ten (10) hours per week can be character - generated programming during at least 80% • *Cox -CNB Franchise Agreement Page 13 of the weekdays for at least 80 % of the time during any consecutive 6-hour period for ten (10) consecutive weeks. C. No more than 33 -1/3% of the aggregate hours utilized for PEG programming during such ten week period can represent repeat programming. d. Any additional PEG channel shall be made available within '180 days following the City's written request and verification of compliance with each of the foregoing conditions. e. Whenever such additional PEG channels but not the original three PEG channels, are programmed for less than ten (10) hours per day for six (6) days per week for a continuous period of not less than twelve (1.2) consecutive weeks,, the City may permit Cox to utilize, unused channel capacity on that channel under the following conditions: (i) Any request from Cox to use any fallow capacity designated for PEG Access must be submitted in writing to the City. (ii) The City shall approve the request from Cox to use fallow channel capacity if it finds that: (i) the utilization of the channel is as represented; (ii) Cox has not acted in violation of any of the provisions of the Franchise regarding utilization of the channel; and (iii) there are no special circumstances which would justify the denial or delay of implementation of the use of the channel. After approval, Cox may continue to utilize the channel for any other purposes it so chooses, consistent with the Franchise, until it is required to be designated for PEG purposes pursuant to the provisions hereof. (iii) Unless Cox receives written notice within one hundred and twenty (120) days that the City disapproves Cox's request, the City's approval shall be deemed granted. f. The maximum number of access channels which may be required under this Franchise shall be five (5:), subject to the City's right to exchange channels; as set forth herein. On six months notice to Cox, City may exchange each analog PEG channel for four (4) digitally compressed channels upon satisfaction of the following conditions: *Cox -CNB Franchise Agreement Page 14 (i) Cox provides digitally compressed channels which offer at least, as many services as are available by analog channels on the system; and (ii) Digital decompression terminal devices are installed in the homes of a least 50% of Cox's subscribers, and are used to receive Cox's services; and (iii) City provides six (6) months notice to Cox. (iv) City provides written waiver of any state or federal laws pertaining to requirements for the placement of such channels. As used in this section, a "digitally compressed channel" shall mean a data stream capable of delivering video programming on a basis comparable to the delivery of other digitally compressed video programming. The City shall have sole responsibility for the administration and programming of the Governmental channel(s) provided by Cox, including without limitation, the carriage of programming on the channel(s) to include trafficking of tapes and playback and the establishment and administration of all rules, regulations and procedures pertaining to the use and scheduling of the programming presented over the channel(s). The channel(s) shall be used for noncommercial, public, governmental or educational programming. In relation to the public access channel(s), Cox shall continue its current practices of providing studio facilities, equipment, trafficking of tapes; playback, for public access users in a quality and quantity generally consistent with that provided over the past franchise term. 4. City and Cox acknowledge that there are certain logistic and technical issues that remain unresolved as of the Effective Date due to the fact that two separate cable companies provide cable service in the City of Newport Beach and the City Hall main operation for PEG Channel(s) resides in the cable service area of another cable service provider. Cox agrees to work in good faith to resolve any logistic and technical issues to ensure seamless quality and continuity of PEG channel(s) access by the City's citizens including but not limited to: a. Allowing physical playout equipment and signal to remain at Cox's Rancho Santa Margarita facility or arranging for transfer of decks and racks in the City Hall area at a mutually agreeable location; b. Ensuring that signal transmission /reception mutual exchange across cable service boundaries is accomplished; and *oa -CNB Franchise Agreement Page 15 C. Ensuring continuation of transmission/reception across the two cable systems. B. A Grant in the amount of sixty dollars ($60.00) per Basic Service Tier subscriber ( "BST ") of Cox in the City as of the Effective Date ( "Threshold Subscribers ") shall be paid by Cox to be utilized for any capital or non- capital purposes (the "Initial Grant"). Said Initial Grant shall be paid by Cox within thirty (30) .days of the Effective Date of this Agreement. C. On January 1,2010; the City shall provide Cox with a list of newly constructed residential units which have been constructed in the City subsequent to the Effective Date, if any, (the "Construction List"). Within thirty (30) days of receipt of the Construction List, Cox shall determine and report in writing to the City the number of newly constructed units which are BST Subscribers as of that date (the "New Construction Subscriber List "). Cox shall also report to the City the number of BST Subscribers contained in the City other than those subscribers set forth on the New Construction Subscriber List (the "Continuing Subscribers "). Within ten (10) days thereafter, Cox shall pay to the City an additional grant (the "Additional Grant ") equal to the number of New Construction Subscribers, less the difference between Threshold Subscribers and Continuing Subscribers times $30.00 per subscriber. D. City and Cox agree that said Initial Grant and Additional Grant are neither franchise fees nor offsettable against franchise fees, irrespective of how they are expended, for the purposes of the Cable Act. City shall waive normal permit fees, but not inspection fees, for residential dwelling units; constructed subsequent to the Effective Date in new subdivisions where Cox installs its cable television plant in otherwise open trenches along with other utilities at the time of new subdivision construction. Other than the waiver of normal permit fees as provided above, Cox will comply with all other City requirements. E. In the event any dedication to PEG Programming required by this Franchise is deemed by a legislative body, administrative body, or court of competent jurisdiction to constitute a payment which must or may be offset against the franchise fee, City hereby reserves the right, but is not required to do so, to terminate said program and/or requirement so as to provide the maximum allowable franchise fee. Cox shall not offset any charge, of any kind, against a franchise fee or other payment due City without prior written consent of City. Nothing in this Franchise is intended, and shall be so construed, to confer any third party beneficiary rights on any party(s), and no rights are created by this Agreement other than rights in City and Cox. 10. Governmental and Institutional Drop Policy' Provision of Live Local Insertion Locations. A. Drops to City Facilities. IOCox -CNB Franchise Agreement Page 16 Within one hundred eighty (ISO) days of written notice provided by the City, Cox shall provide, without charge, up to four (4) cable drops, as determined by City; for all levels and all tiers of Cable Service, per building, excluding premiums and pay -per -view, a cable modem drop, and cable modem service (residential speed of up to 3 mbs) per drop for those buildings, institutions and facilities on Exhibit "A ", plus those buildings, institutions and facilities which are constructed subsequent to the Effective Date of this Franchise Agreement, as designated by City in writing. Except for a City Hall which shall be served irrespective of distance if it is located in the Service Area, existing or future which Cox shall construct at its sole expense, drops to all buildings, institutions and facilities which are constructed subsequent to the Effective Date of this Franchise Agreement shall be limited to 250 feet from the closest point to Cox's distribution system. In the event that requested drops exceed said distance, Cox shall determine the incremental cost beyond said distance and the City shall pay such incremental costs to Cox upon completion of construction. Cox shall not impose programming or other charges for any additional outlets within said buildings. Installation and maintenance of interior wiring of said building(s) beyond the four (4) drops per building shall be the responsibility of the building owner, provided that if Cox is requested to install such wiring, it will do so within a reasonable time at its actual cost of labor and materials. B. Live Insertion Locations. Within one hundred eighty (180) days of written notice provided by the City, Cox shall provide live insertion, points at the locations set forth on Exhibit "B" by way of fiber connection so that the City can insert and transmit audio, video, and digital programming from said site to Cox's headend for retransmission over one or more of the PEG Channels specified in Section 9(A) (collectively, the "Return Feeds"). The Return Feeds shall be constructed pursuant to technical standards mutually agreed upon by Cox and the City (the "Design Specifications "). The City shall possess no obligation to insert programming upon the Governmental Channel pursuant to Section 9(A) (3) until such time as the Return Feeds are constructed and activated pursuant to the Design Specifications. Within one hundred and twenty (120) days of the completion and activation of the Return Feed, any playback of local government programming or insertion of audio, data or other information on the Government Access channel shall be the sole responsibility of the City. 11. Services and Broad Categories of Video Proerammin . Cox should provide, at a minimum, the following broad categories of services and video programming: local broadcast, public affairs, satellite services, news, sports, cultural, foreign language programming, general entertainment, and children's. If any listed broad category of service or video programming shall become unavailable, or is commercially, impractical, or cannot be provided under existing FCC regulations, Cox should provide substitute programming of the same category if reasonably available. City may request Cox to cooperate with City in developing and distributing a printed PEG channel guide at a*Cox -CNB Franchise Agreement Page 17 City's cost. Said printed guide shall be of a_reasonable weight and size and could include, but is not limited to, a printed guide distributed through the bills, via direct mail, or included in local newspaper or Cox's printed guide, all at City's cost, if any; but shall not include advertising. If City requests Cox to distribute a printed guide through the bills, Cox shall comply so long as City produces said guide at its own cost for production and insertion and provides Cox sufficient advance notice and there is room for said guide in Cox's billing envelopes, and said guide does not take the place of other inserts desired by Cox. City shall have complete responsibility for the content of any information included in said guide. The payments by City referred to in this Section shall be limited to reimbursing Cox's actual incremental cost of providing and distributing the guide. 12. Minimum System Design and Capacity Requirements. A. Channel Capacity. The cable television system shall be constructed with hybrid fiber coax ( "HFC ") architecture and engineered to deliver signals at forward frequencies up to and including a minimum bandwidth of seven hundred and fifty (750) megahertz (MHz) on the Residential Network. The System will be engineered to allow simultaneous downstream delivery of no less than one hundred ten (110)' analog video channels' and shall be constructed pursuant to the specifications and routing described herein. B. Interactive Capacity and Services. The cable television system shall be two -way activated in all of the distribution plant. C. Minimum Design Criteria. In addition to the requirements of Section 12(A) -(B) above, minimum system construction requirements shall be as follows: 1. Cox shall at all times maintain equipment capable of providing standby power for the entirety of the cable system for a minimum of two hours. 2. Emergency Override System. a. Cox shall provide, install, activate, and maintain an emergency override system which includes audio override on all analog channels of Cox's system and character generated message capabilities on a designated channel, receivable only within the City. City shall be able to activate, provide audio programming, and terminate such emergency audio override via dial -up or dedicated telephone control upon system upgrade. City shall use the audio override and character generated system only in emergency situations, as declared by the City Council or the City *Cox -CNB Franchise Agreement Page 18 Manager when there is threat to the public welfare, health or safety. b. In addition to subsection (a) above, and in accordance with the provisions of FCC Rules and Regulations Part 11, Subpart D, Section 11.5(h)(1), and as such provisions may from time to time be amended, Cox shall install and maintain an Emergency Alert System (EAS). As allowed by FCC Order FCC 97 -338, Paragraph 33, Cox shall transmit all national, state, and local activations of the Federal EAS, utilizing the four -part message protocol specified in FCC Rules and Regulations Part 11, Subpart B, or successor protocols. This shall include such local and state -wide situations as may be designated to be an emergency by the Local Primary (LP), the State Primary (SP) and/or other authorities identified and defined within FCC Rules and Regulations, Part 11 or the Local and State Plans provided for under those rules. 3. Cox shall provide subscribers, upon request, with a parental control locking device or digital code or other means that permits inhibiting the viewing of parental designated channels. 4. All new underground trunk and distribution cables shall be in conduit. 5. Minimum Technical Standards for Forward (Downstream) and Reverse (Upstream) Directions. The minimum technical standards shall be those adopted by the FCC from time to time. To the extent that no FCC standards exist, the standards shall be those FCC technical standards in effect on the Effective Date; or, if none those established by City. 13. Universal Service. Cox shall design, construct and maintain the cable television system in such a manner as to pass by every existing single or multiple - family dwelling unit in the City and shall make the system available on an identical basis to all single or multiple family dwelling, units constructed during the term of this Franchise. For new construction in residential and industrial areas, Cox shall make the system available at the, same time as the units, residential, or otherwise, are constructed. Nothing herein shall preclude Cox from providing service to multi - family dwellings and other residential developments on a discounted bulk - billing basis. 14. System Extension. Policies. Description of Service Area(s). A. The service area shall constitute that portion of the City set forth on Exhibit "C" (the "Service Area "). • *Cox -CNB Franchise Agreement Page 19 B. All subscribers, residential, or otherwise, within one hundred twenty -five (125) feet from the closest public right -of -way or easement, shall be provided service for the standard installation fee. Subscribers located beyond one hundred twenty - five (125) feet from the closest public right -of -way or easement will be connected upon the payment of Cox's time and materials for that portion of the installation which exceeds one hundred twenty -five (125) feet. 15. Provision of Service. Unless the subscriber requests otherwise, Cox shall, deliver initial service within seven (7) business days after receipt of a subscriber order so long as the subscriber is within the existing Service Area. Service additions or deletions shall be made within twenty -four (24) hours of a subscriber request, unless additional terminal equipment is required, in which case Cox shall make such service change within seven (7) calendar days. Cox shall provide all subscribers, prior to the initiation of cable service and thereafter, with the ability to subscribe to only Basic Service. lb. Technical Standards Testing. A. Cox's cable television system shall be periodically tested by Cox, at Cox's sole expense, at the times, and pursuant to the procedures, described in the then applicable rules and regulations of the FCC or, if no such rules and regulations exist, in the manner prescribed in rules and regulations in effect on the Effective Date. B. Reimbursement of City Expenses. City shall bear all costs associated with its attendance, either directly or through an independent consultant, in the initial testing but not retesting procedure described herein except as provided below: 1. Upon written request by the City and based on a pattern of customer complaints to the City regarding system performance, Cox shall measure and report to City the number of service complaints, which related to customer dissatisfaction with the quality of the picture excluding partial or total system outages. The number of said complaints over the first twelve (12) month period after the Effective Date shall be divided by twelve (12) and constitute the "base year average monthly subscriber complaints" for the purposes of this paragraph. 2. At the conclusion of said twelve (12) month period, Cox shall calculate and report to City monthly the number of subscriber complaints relating to the quality of the picture ( "Monthly Subscriber Complaints "). Said information shall be provided to City within fifteen (15) working days_ of the last day of each calendar month. 3. So long as Monthly Subscriber Complaints, as defined herein, remain within twenty percent (20 %) of the base year average monthly subscriber complaints, as defined herein, City shall bear all costs relating to its *COX-CNB Franchise Agreement Page 20 participation in the technical standards testing process defined herein. However, if, for any given two (2) consecutive months or any three (3) nonconsecutive months in any six (6) month period, said Monthly Subscriber Complaints increase more than twenty percent (20 %) over the base year average Monthly Subscriber Complaints, Cox shall reimburse City for City's actual and reasonable cost of supervising and/or participating in the technical standards testing for a three (3) quarter period commencing upon the occurrence of the contingency(ies) provided herein if the unsupervised periodic testing; as defined herein; indicates that Cox's system during said period is operating in conformance with the technical performance standards provided by Section 12 hereof. Cox shall reimburse City for any and all costs incurred by it in monitoring Cox's technical standards testing for twelve (12) months subsequent to a determination by City that liquidated damages pursuant in Section 8(A)(2) may be imposed. 4. Subscriber Complaint Log: Cox shall maintain a written or computerized record of subscriber complaints including: loss of signal requiring a field visit, non- receipt of programming or services ordered, billing disputes, missed appointments, unsatisfactory performance of maintenance, malfunctioning signal traps on blocked channels; and unresolved or chronic technical problems. Said record shall indicate: a. Date and time of Subscriber complaints; b. Street name of complainant; C. Nature of complaint; d. Cox's action(s) to resolve complaint; and e. Date(s) and time(s) actions(s) taken. Said record shall be kept at Cox's local office for a period of two (2) years. A copy of said Subscriber complaint record shall be submitted by Cox to City within ten (10) working days following receipt of a written request by City. 5. To the extent that Cox maintains and provides Subscriber complaint information consistent with the above requirements, it shall be deemed to have maintained and provided sufficient Subscriber complaint information as required by this paragraph. 17. Equipment in Rights of Way. A. Design and construction requirements, permit and other fees, public and customer notifications, requirements for public communication, and other oversight requirements by City imposed on Cox shall be consistent to the extent legally • leCox -MB Franchise. Agreement Page 21 permissible and technically feasible, with those requirements imposed upon other users of the public rights -of -way and easements within the City. B The Cable System shall be constructed or installed in the City only after the express written approval of the City and only at such locations and in such manner, design, and size as shall be approved by the City. In granting such approvals, the City shall exercise reasonable discretion in accordance with applicable law. Upon Cox's written request, City staff shall meet and confer with Cox in order to develop a process for expediting City processing and approval of proposed Cable System installation of multiple "like- kind" facilities. C. The Cable System shall be placed underground or where all other utilities are located in all areas which are subject to the provisions of the NBMC unless otherwise approved by the City Engineer. Such approval shall not unreasonably be withheld. D. All construction or maintenance work shall be conducted in a good and workmanlike manner consistent with industry standards. Installation of new facilities shall occur, whenever practical, concurrent with the installation of subdivision public improvements. E. Upon its receipt of reasonable advance notice, not to be less than five (5) business days, Cox shall, at its own expense; protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of Cox when lawfully required by City by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Franchising Authority; but, Cox shall in all cases have the right of abandonment of its property. 18, Franchise Term. The term of this franchise shall commence upon its approval by the City Council (the "Effective Date "), and shall expire on April 1, 2011. At Cox's written election filed with the City no later than January 1, 2010, Cox may extend the Initial Term by seven (7) additional years so that the Franchise will expire on April 1, 2018. 19. Most Favored Nations Review. A. At any time and at City's request, Cox shall provide information on any Cable Services not being provided in the City which are being provided on an operational basis in systems operated by Cox, or any affiliate thereof in the States of California, Arizona and Nevada (the "Comparison Systems "). For purposes of this section, "operational basis" means that Cox has offered a Cable Service to all Subscribers in the Comparison Systems for at least six (6) months, but does not include Cable Services that are offered on a trial or test basis to a limited number of subscribers. • •Cox -CNB Franchise Agreement Page, 22 B. If Cox is providing Cable Services on an operational basis in any Comparison Systems; City may require Cox, and Cox shall comply, to provide said Cable Service(s) within one (1) year of the City's written request, and to upgrade its Cable System, if necessary, to provide said Cable Service. Further, City shall reasonably consider not requiring such service based upon information supplied by Cox but, after considering said information, may still require the provision of these Cable Services. C. After the Effective Date of the Franchise, if Cox, or any affiliate, parent, or subsidiary thereof, enters into any renewal, franchise extension, of a franchise or a new franchise to provide cable television service to any city located within Orange County or the County of Orange itself, within thirty (30) days thereof, Cox shall provide to the City a copy of the Other Franchise. D. In the event that the City concludes that the Other Franchise contains terms, conditions or provisions regarding Public, Educational or Government access (the "PEG Access Provision "), including, without limitation, the financial support thereof) or Cable System Technology (i.e., channel capacity, services offered, etc.) (hereinafter the "Technology Provision "), as originally contained therein or as modified that are more favorable than those contained in the Franchise, when considering the Franchise and its requirements as a whole, then the City may, at its sole discretion, require Cox to provide the more favorable PEG Access Provision and the more favorable. Technology Provision, or either of them; provided, however, (1) the City must notify Cox in writing of its election to require Cox to provide the more favorable provision within one hundred eighty (180) days of the City's receipt of the Other Franchise or the City shalt be deemed to have irrevocably declined to impose such requirement; and (2) any requirement imposed pursuant to this paragraph of the Franchise to incorporate the more favorable PEG Access Provision and the Technology Provision, or either of them, shall also include, upon Cox's identification and request, the imposition of any and all other terms or conditions in the Other Franchise which are more favorable to Cox than those contained in the Franchise when considering the Franchise and its requirements as a whole, (by way of example, if the Other Franchise contains a franchise fee less than the franchise fee in the Franchise or has a term longer than the term of the Franchise, then the Franchise shall be modified to include such more favorable terms to the City at the same time that the Franchise is modified to include the more favorable PEG Access Provision or the more favorable Technology Provision). E. Cox shall provide the same Cable Services to customers in the City as it provides to customers in communities served off the same headend as of the date of this Agreement. In the event Cox deploys new or different Cable Services as a result of a Cable System upgrade in one or more of the communities served off the same headend as of the date of this Agreement, then Cox shall deploy those new or different services within 24 months to customers in the City provided however Cox may request an extension for good cause and the City may or may not in its discretion consent to the extension. ecox -CNB Franchise Agreement Page 23 20. Construction Responsibility. Cox shall be responsible for the acts and omissions of its contractors, subcontractors and employees. Only authorized employees and /or agents of Cox shall apply for and be issued all necessary permits and building authorizations. Cox shall designate to City a construction manager who is an employee of Cox to be contacted regarding all cable construction, issues. 21. Compliance with Construction Standards. Cox shall not construct any portion, of its cable television system in City streets and rights -of -way without obtaining all necessary City building permits and paying in addition to, the franchise fee; all then applicable fees to the extent legally and practically feasible to be required of all users of the public rights -of -way and public utility easements and shall only construct said system in accordance with City standards for methods of construction in public rights -of -way. 22. Compliance with all Laws, City Orders and the NBMC. A. Cox shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Cox shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements. B. Cox shall promptly comply with all lawful City orders, resolutions and the NBMC related to Cox's operation of the System, including all lawful rate orders. Failure to so comply shall be considered a breach of this Franchise and shall subject Cox to (1) all liquidated, damages contained in this Franchise and the NBMC, and (2) all other actions, remedies and penalties available to City as a result of such failure to comply. C. hi accepting this Franchise, the Company agrees that the commitments indicated in Section 9 above are voluntarily entered into and shall not be charged against any Franchise Fees due the City during the term of the Franchise. The Company agrees to meet all of the commitments of Section 9 above, through the term of the Franchise. 23. Performance Audits. City may require, at its option, that performance audits of the System be conducted every two (2) years by an independent technical consultant selected and employed by City at its sole expense to verify that the System complies with all technical standards and other specifications of the Franchise. 24. 25 26. •Cox -CNB Franchise Agreement. Page 24 Franchise Construction. This Franchise shall be construed according to the internal laws of the State of California and all federal laws of the United States. Any action brought relating thereto must be brought exclusively in the state or federal courts located in Orange County, California. Notices. Any notice required to be given by this Agreement shall be presumed given five (5) days after deposit in the United States mail, properly addressed by certified mail and return receipt requested, as follows: To City: City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 With a COPY to: City Attorney City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 To Cox: Cox Com, Inc. Cox Communications Orange County 29947 Avenida de las Banderas Rancho Santa Margarita, CA 92688 Attn: Vice President, Government Affairs With a COPY to: CoxCom, Inc. Attn: Director, Government Affairs 1400 Lake Hearn Drive Atlanta, GA 30319 Pass-Through of Expenses. Cox will not separate out, line itemize, or surcharge the cost of the Initial Grants and the Additional Grants described in Section 9 or any other cost related to this Agreement (except the franchise fee) as a line item on City customer's cable bills. Additionally, Cox shall not impose rates and charges on subscribers which are higher for like -kind services or of packages of services than those imposed upon, subscribers in any of the cities of Mission Viejo, Laguna Hills, Tustin, Rancho Santa Margarita, and Aliso Viejo. •Cox -CNB Franchise Agreement Page 25 27. Possessory Interest. By accepting this Franchise, Cox acknowledges that notice is and was hereby given to Cox pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property pursuant to the authorization herein set forth may create a possessory interest which, may be subject to the payment of property levied upon such interest. Cox shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against Cox's right to possession, occupancy or use of any public property pursuant to any right of possession, occupancy or use created by this Franchise. Cox shall not be barred from challenging such try on any amounts assessed pursuant thereto. 28. Rates. City may, without amendment of this Franchise, regulate Cox's rates, charges, and prices to the maximum extent permitted by law. 29. Force Mai ear e. In the event Cox's performance of any of the terms, conditions, obligations or requirements of this Franchise is prevented or impaired due to any cause beyond its reasonable control and not reasonably foreseeable, such inability to perform shall be deemed to be excused, and no penalties or sanctions shall be imposed as a result thereof. Such causes beyond Cox's reasonable control and not reasonably foreseeable shall include, but not be limited to, any acts of God, civil emergencies, labor unrest, strikes inability to obtain access to an individual's property and any inability of Cox to secure all necessary permissions or permits to utilize necessary poles or conduits so long as Cox utilizes due diligence to timely obtain said permissions or permits. 30. Meet and Confer. Prior to exercising any rights of audit or inspection upon Cox pursuant to Chapter 5.44 of the NBMC, City and Cox shall reasonably attempt to meet and confer to achieve voluntary compliance. 31. Interpretation. The terms of this Franchise shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Franchise or any other rule of construction which might otherwise apply. 32. Successors and Assigns. All provisions of this Agreement shall apply to any lawful successors and assigns. • •Cox -CNB Franchise. Agreement Page 26 33. Severability. If any provision of this Agreement or the application of such provision to any circumstance is rendered unconstitutional or otherwise invalid by any law, ordinance; regulation or court of competent jurisdiction; the remainder of this Agreement or the application of the provision to other circumstances, shall not be affected thereby. 34. Rights Cumulative. The rights and remedies of the parties pursuant to this Franchise are cumulative, except as otherwise provided in this Franchise, and shall be in addition to and not in derogation of any other rights or remedies which the parties may have with respect to the subject matter of this Franchise. 35. No Waiver. A waiver of any right or remedy by a party at any one time shall not affect the exercise of said right or remedy or any other right or other remedy by such party at any other time. The failure of the City to take any action in the event of a material breach by Cox shall not be construed or otherwise be deemed to constitute a waiver of the right of the City to take such action at any other time in the event that said material breach has not been cured, or with respect to any other material breach by Cox. 36. Declaration of Invalidity. In the event that, after the Effective Date of this Franchise, any court, agency, commission, legislative body, or other authority of competent jurisdiction: (A) declares that this Franchise is invalid, in whole or in part; or (B) requires Cox either to: (1) perform any act which is inconsistent with any provision of this Franchise or (2) cease performing any act required by any provision of this Franchise, City shall reasonably determine whether said declaration or requirement has a material and adverse effect on this Franchise. When Cox intends to exercise its rights pursuant to such declaration or requirement, Cox shall so notify the City Manager's Office of said declaration or requirement. If the City determines that said declaration or requirement does have a material and adverse effect on this Franchise, then Cox shall then enter into good faith negotiations with the City to amend this Franchise to eliminate any inconsistency or conflict between said declaration or requirement and the provisions of this Franchise and to meet the original intent of the parties as the circumstances warrant. 37. Time of the Essence; Maintenance of Records. In determining whether Cox has substantially complied with the Franchise, the City and Cox agree that time is of the essence. As a result, Cox's failure to complete construction, extend service, seek approval of transfers, or provide information in a timely manner shall constitute substantial breaches of material terms of the Franchise. Maintenance of records and provision of reports in accordance with the Franchise is also an essential part of this Franchise Agreement. *Cox -CNB Franchise Agreement Page 27 38. Exhibits. Exhibits "A" through "C" are an integral part of this Agreement, and "these Exhibits are incorporated herein by reference. All references to this Agreement shall include all Exhibits. In recognition of the obligations stated in this Agreement, the parties have executed this Agreement on the date indicated above. APPROVED AS TO FORM: —4 ', r Aaron C. Harp, ` Assistant City Attorney for the City of Newport Beach ATTEST: aVonne Harkless, City Clerk CITY OF NEWPORT BEACH: A M�CO q Don Webb, Mayor for the City of Newport Beach COXCOM, INCORPORATED A Delaware corporation dba.Cox Communications Orange County By: — orpora Officer) Title: Region VP & General Manager Print Name: Thomaa H T none *Cox -CNB Franchise Agreement Page 28 EXHIBIT A Drops to City Public Buildings, institutions and Facilities 1. Central Library — 1000 Avocado Avenue 2. Police Department — 870 Santa Barbara Drive 3. Fire Station 3 — 868 Santa Barbara Drive 4. Fire Station 5/Corona del Mar Library — 410 & 420 Marigold Avenue 5. Fire Station 8 — 6502 Ridge Park Road 6. Big Canyon Reservoir — 3300 Pacific View Drive 7. Oasis Senior Center — 800 Marguerite Avenue 8. Grant Howald Park/Community Youth Center - 3000 Fifth Avenue 9. Newport Coast Community Center — NP Coast Drive & San Joaquin Rd 10. Between the Police Facility and Newport Coast Fire Station H. Andersen Elementary — 1900 Port Seabourne Way • •Cox-CNB Franchise Agreement Page 29 EXHIBIT B Live Local Insertion Locations 1. Police Department Emergency Operations Center 2. Central Library Friends Meeting Room 3. Oasis Senior Center Community Meeting Room 4. Newport Coast Community Center Meeting Room EXHIBIT C Cox Service Area V.. TV Franchise Areas - City of Nex poi¢ 6earh c S!E 10 r L f iv 8 vei �`k} rY 4 GtilxPmvi�lx C�a yy f *Cox -CNB Franchise Agreement Page 30 ✓j I [l TO: • 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT � r,h 0 C-0 't-30 1W - )-o Agenda Item No. 16 fN&D July 25, 2006 HONORABLE MAYOR AND MEMBERS OF THE CITY FROM: City Manager's Office Dave Kiff, Assistant City Manager 9491644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: CABLE TELEVISION: ORDINANCE 2006 -_ ADOPTI AGREEMENT WITH COX COMMUNICATIONS ISSUE: Should the City enact an ordinance that adopts a new Franchise Agreement with Cox Communications? RECOMMENDATION: 1. Introduce Ordinance No. 2006 -_ relating to the adoption of a Cable Communications Franchise Agreement with Cox Communications; 2. Pass to second reading on August 8, 2006. DISCUSSIOW As far back as 1966, the City of Newport Beach has had a Cable TV Ordinance and separate "franchise agreements" with two cable providers. Today, those providers are Cox Communications and Adelphia (see service areas on map below). The agreements have been extended several times: ADELPHIA FRANCHISE AGREEMENT • Agreement adopted December 1966 -15 -year term (to 1981). • Amended December 1970 - term reset again to 15 years (to 1986). • Amended April 1986 - term extended by fire years (to 1991) • Amended October 1991 - term extended to January 27, 2002. • Amended December 11, 2001 =- term extended to January 27, 2003. • Amended January 27, 2003 -- term extended to January 27, 2004 (now on holdover status) COX FRANCHISE AGREEMENT • • Agreement adopted December 1966 - 15'- yearterm (to 1981). Cox Commun *ns Franchise and Ordinance July 25, 2006 Page 2 • Amended November 1981 -term extended for 10 years (to 1991): • Amended October 1991 -term extended to January 27, 2002 • Amended December 11, 2001 -- term extended to January 27, 2003. • Amended January 27, 2003 -- term extended to January 27, 2004 (now on holdover status). rt� I [ � cable TVFran+ his Areas 4: ° Clt}- cF Nra �•ort Na"), ` 'S'k4pFio 7. IT- :7 yq� E r �r v Fl Pp tit HWS•rkmwna. - � � } rz` �' ?.t J . j11i15164i3 SAx t K`�r� .. r i Cw �0001NY(JIpTS \, ��" il 1 f .4oe tiM 9nar � � � Cry-A ••n •••• [ S i / 339'J S.ve v'nhlmBeMVV r •:: RercLcSv SNaYmLLCP 9'2.Y �� ��� � } f (919151FdBV i. % J #'of homes passed in Franchise Area 31,123 13,900 45,U2S # of cable N subscribers 16,978 10,100 27,078 % of homes passed that subscribe to 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 $ 1,101;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 • Cox Commune" Franchise and Ordinance July 25, 2006 Page 3 In May of 2004, the City adopted a new Cable Communications Franchises Ordinance (Chapter 5.44 of the NBMC). Since that time, the staff team (Bill Marticorena of Rutan and Tucker, Assistant City Attorney Aaron Harp, City Attorney Robin Clauson, Assistant City Manager Dave Kiff, and PIO Marilee Jackson) has worked to negotiate two new franchise agreements (which mirror each other) with Cox and Adelphia: Adelphia's bankruptcy filing and subsequent sale of Adelphia assets to Time Warner greatly complicated our discussions. Preparing for the franchise renewals, the City Council worked with us to amend or wholly re- vamp three different ordinances (Public Right -of -Way, Cable Communications Franchises, and Wireless Telecommunications) to lay a framework for the Agreements and for the overall industry's work in the area. Those tasks are complete. Generally, the negotiations with both Cox and Adelphia/Time Warner have centered around template agreements - 95 % of the template is a fairly standard version of the agreements that Mr. Marticorena's clients (cities and counties) have adopted in recent years. The remaining 5 % of the discussions have centered around: How many channels will be dedicated for Public Access, Educational and Government (PEG) -- now and in the future (in case our community programming grows). • How much money might be forthcoming for a one -time capital grant to enable us to install one -time projects like cameras in City Hall, a computer editing bay, and more. • How many remote City facilities will be hooked up with a network (called the "institutional" or "I -Nei" we talk about). • How much will the companies provide on an ongoing per subscriber to support community programming. Not surprisingly, areawide research shows that Cox and Adelphia have given a variety of capital grants, a variety of sums per subscriber, and different I -Net services to different municipalities. The City has been fairly aggressive in stressing that we know what other cities have received and that we expect similar treatment by our cable providers. Additional Background. In the 1960s, when the City of Newport Beach entered into two separate franchise agreements with companies that provide cable television service, cities across the nation had a significant amount of say in cable companies' operations, including: • Rates and rate increases; • Customer service standards; and • Channel selections and placement Cities were able to dictate these aspects of cable companies' operations because the cable companies used the public right -of -way to lay the cable "plant" (plant includes coaxial cable, boxes in the rights -of -way, connections to homes; etc).. Federal law has changed significantly since the City adopted its franchise agreements - and both Federal and State law will continue to affect us in the years to come. The changes, in part, took away almost all of cities' regulatory abilities relating to cable and moved them to the • Cox Commun,'oons Franchise and Ordinance July 25, 2006 Page 4 Federal Communications Commission (FCC or www.fcc.gov). Today, several different laws, . ordinances, and agreements direct our decisions about cable television. The Effect of Changes in Law. It's important to remind the Council and Newport Beach residents that: FCC regulates rates, not cities. The FCC alone has the power to regulate rates and channel selections, with the lone exception of rate regulation on the basic service tier of channels (typically Channels 2 -1.3 and PEG channels). Cities can only regulate basic tier rate increases if fully certified by the FCC to do so. Cable customers should note that cable companies rarely, if ever, raise the rates on this tier - much more frequent are rate increases on the larger (and unregulated) broadcast basic tier(Channels 14 -65 and up). Other tiers are generally unregulated. In March 1999, the FCC (generally) deemed many cable systems subject to "effective competition" from satellite dish services and removed almost all rate regulation from cable TV. Cable TV in Newport is not literally a monopoly. Cities like Newport Beach have non- exclusive franchise agreements. Any cable provider can come into the city limits, negotiate a franchise agreement, lay new cable, and compete directly with either Cox or Adelphia. Similarly, Cox can attempt to compete directly with Adelphia and vice- versa. But doing so requires significant investment in new cable "infrastructure, because each cable company owns the cable in the ground (and on poles). Very few companies anywhere in the nation "overbuild" other systems. Denial of renewal is extremely difficult and expensive. Cities cannot typically deny a cable provider an opportunity to renew an existing franchise agreement. Internet services are unregulated. Courts have ruled that the provision of Internet service over cable is not a cable - related service and therefore not subject to municipal regulation. Newport Beach can do very little to help cable customers interact with their Internet Service Providers (ISPs). Many more changes are expected. Legislation in both Sacramento and Washington propose "statewide" franchises for telephone and cable providers - these may supercede local agencies' franchise abilities and some or all franchise revenue. A note about the City Charter. The City Charter's section on franchises (Article XIII) requires the City Council to adopt franchises via ordinance and to hold a public hearing prior to granting a franchise. It also directs us to notice the public hearing in advance of considering a new franchise. This notice was provided at the Council's July 11th meeting. It limits all franchise terms to 25 years or less if a determinate term is stated. The Article allows indeterminate terms but specifies that the City may end the franchise and possess the franchisee's property if the franchisee is out of compliance with the franchise. agreement (Section 1302). Franchise Discussions. Since at least Fall 2000, the City has retained Mr. Marticorena to assist us in our telecommunications work. Mr. Marticorena has extensive experience in all phases of franchise renewals and ordinance amendments. Additionally, upon recommendation of the Telecom Committee, we hired Sue Buske of the Buske Group to conduct a statistically valid Cable Needs Assessment (CNA) to determine the community's desires and concerns regarding cable TV (for more information about the Assessment itself, see the Agenda Item from April 8, 2003 whereby the City Council formally accepted the Assessment). Cox CommunWns Franchise and Ordinance July 25, 2006 Page 5 . Given the problems with Adelphia (and generally no one there with whom to negotiate), we used the Assessment and the Statement of Minimum Goals to work with Cox on a new Franchise Agreement. A Franchise Agreement is separate and distinct from a new Cable Communications Ordinance as follows: • The Ordinance reflects the regulatory environment and practices that any cable provider must follow while doing business in the City. The Agreement(s) reflects specific permission to a specific, company to use the public right -of -way to operate a cable system. Included in the permission are negotiated terms by the company and the City as to adequate compensation paid to the City and its residents for the use of the right -of -way. Adequate compensation may include the 5% franchise fee, dedication of equipment; dedication of specific channels and support for Public, Educational, and Government (PEG) services, and more. The Proposed Franchise Agreement with Cox. The attached Franchise Agreement - which, as noted, must be adopted by Ordinance - has the following key provisions; TERM: Until April 1, 2011 -with an option to extend to April 1, 2018 FRANCHISE FEE: 5% LETTER OF CREDIT: $17.25 per subscriber BANDWIDTH At least 750 Mhz LOCAL OFFICE: Within 20 miles PEG SUPPORT: Initial grant of $60 /subscriber (roughly $660,000); and Additional grant of $30 /new subscriber over 2006's numbers in 2010. No ongoing PEG support PEG CHANNELS: Three immediately, up to 2 more if needed. OTHER' Drops provided to City facilities in Cox service area Undergrounding required Subscriber Complaint Log kept Technical Service standards met Assurance that changes to State or Federal law will not impact Capital Grant or Franchise Fee payments for the duration of the Franchise Term: More This tentative agreement with Cox compares to the negotiated settlement with Adelphia -Time Warner, via a proposed Memorandum of Understanding (MOU). The MOU twould be binding on Time Warner for ten years (until December 31, 2016) and includes the following benefits from Time Warner 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). Importantly, Cox asserts that Cox will not and has not agreed to ongoing PEG support - instead, Cox offers limited one -time capital grants (thus the higher number at $60 /subcriber than the below $28 /subcriber offered by the Time Warner MOU; 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. • Cox Communeons Franchise and Ordinance July 25, 2006 Page 6 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. Staff agrees with the proposed terms of the Cox Franchise Agreement and recommends that the Council approve the Cox FA by ordinance as required by the City Charter. 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 was noticed at the July 11th meeting, per City Charter Section 1310. Submitted by: )�� l Dave Assistant City Manager Attachments: Ordinance No. 2006 - Draft Franchise Agreement with Cox E • Cox CommuAns Franchise and Ordinance July 25, 2006 Page 7 ORDINANCE NO. 2006 - AN ORDINANCE OF THE CITY OF NEWPORT BEACH GRANTING TO COXCOM, INCORPORATED, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE A CABLE COMMUNICATIONS SYSTEM WITHIN THE CITY OF NEWPORT BEACH 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 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 or 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) "Cox" shall mean CoxCom, Incorporated, a Delaware Corporation, doing business as Cox Communications Orange County, its employees, agents, successors and assigns. (e) "Subscribers" shall mean any person or entity' receiving for any purpose the Cable Service of Cox herein. (f) "Franchise Area" shall mean the territory within the City throughout which Cox shall be authorized to construct, maintain and operate its system which is depicted on Exhibit A, which is incorporated herein by this reference, and shall include any enlargements thereof and additions thereto approved by the City in writing. (g) "Franchise Documents" shall mean and shall include all of the following: (1) Article XIII of the Charter of the City of Newport Beach. 7 Cox communl6ons Franchise and Ordinance July 25, 2006 Page 8 (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 Cable Systems within the City of Newport Beach which are adopted by the City Council. (4) The written acceptance of a Cable Communications Franchise filed with the City by Cox. (5) The Franchise Agreement approved by the Office of the City Attorney executed by the City and Cox. (i) "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. There is hereby granted to Cox 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 Cable System to transmit television and FM radio signals, within the franchise area depicted on Exhibit A. The Cable 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 initial term of this franchise shall commence upon its approval by the Council (the "Effective Date "), and shall expire on April 1, 2011, provided that Cox has filed written notice of acceptance and executed the franchise agreement in accordance with the requirement of Section 9 of this ordinance ( "Initial Term "). At Cox's written election filed with the City no later than January 1, 2010, Cox may extend the Initial Term by seven E Cox Communwns Franchise and Ordinance July 25, 2006 Page 9 (7) additional years so that the franchise will expire on April 1, 2018. 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, Cox agrees to be bound by all of the terms, provisions and conditions contained in said franchise documents. SECTION 6. _R�qht of City to Adopt Additional Rules and Reaulations. The right is hereby reserved to the City 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 the police power. SECTION 7. Prohibited Activities of Cox. Cox 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 Cox 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 Cox is prohibited from engaging in by the provisions hereof. SECTION 8. 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 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 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 transfers 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 Council. 9 Cox Communions Franchise and Ordinance July 25, 2006 Page 10 SECTION 9. Acceptance of Franchise. • This franchise shall not become effective for any purpose unless and until the franchise agreement is executed by Cox and the City and written acceptance of the franchise shall have been filed with the City Clerk. The franchise agreement and written acceptance of the franchise 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. An executed franchise agreement and written acceptance of the franchise shall be filed by Cox not later than 12:01 P.M. of the fifteenth (15th) day next following the date of the adoption by the Council of this ordinance; and; in default of the filing of an executed franchise agreement and written acceptance of the franchise as herein required, Cox shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance by Cox of the franchise shall not be received by the City Clerk and the City shall not execute the franchise agreement, and_ such Cox shall have no rights, remedies, or redress in the premises, unless and until the City Council shall, by resolution, 'determine that such written acceptance of the franchise be received and filed and that the franchise agreement be executed by the City, and then upon such terms and conditions as the Council may impose. SECTION 10. Annual Franchise Fee. Cox shall pay annually to the City during the life of this franchise for the privilege of operating a Cable System under this franchise the franchise fees and other payments set forth in the franchise agreement. SECTION 11. 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 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 12. The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption; provided, however, that the franchise hereby granted shall not become effective unless and until Cox files written acceptance thereof and executes and delivers the franchise agreement in the manner specified in Section 9 of this ordinance and delivers to the City all bonds and insurance • 10 • Cox CommunAwns Franchise and Ordinance July 25, 2006 Page 11 • policies required to be furnished in accordance with the requirements of Chapter 5.44 of the Newport Beach Municipal Code and /or the franchise agreement. SECTION 13. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 25th day of July, 2006, and adopted on the 8th day of August, 2006, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MA ATTEST: CITY CLERK 0 11 9 9 FRANCHISE TO PROVIDE CABLE TELEVISION SERVICES BETWEEN THE CITY OF NEWPORT BEACH, CALIFORNIA • AND COXCOM, INCORPORATED THIS AGREEMENT AND FRANCHISE (the "Franchise ") is made and entered into this _ day of 2006, by and between CoxCom, Incorporated, a Delaware corporation dba Cox Communications Orange County (hereinafter "Cox ") and the City of Newport Beach, California ( "City "). 1. Authority. This Franchise has been granted and approved pursuant to the provisions of Title 5, Business Licenses and Regulations, Chapter 5.44, Cable Communications Franchise; of the Municipal Code of the City of Newport Beach ("NBMC"). This Franchise is in the form of a nonexclusive franchise, contract and agreement. 2. Definitions. A. All terns used in this Franchise Agreement shall be as defined herein and in Title 5, Business Licenses and Regulations, Chapter 5.44, Cable Communications Franchise, of the NBMC. The provisions of the NBMC and the wordings; specifications; and requirements in this Franchise shall constitute the terms of a franchise as authorized in the NBMC in the form of an agreement to permit use of the public rights -of -way and to provide cable television services by Cox. For the purposes of this Franchise, the following words; terns; phrases; and their • derivations have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, and words in the singular number include the plural number. "Complaint" means a dispute in which a Subscriber notifies Cox of an outage or. degradation in picture quality, billing or other issue pertaining to the Subscriber's Cable Service which is not corrected during the initial telephone or service call. "Control" or "Controlling Interest" means actual working control in whatever manner exercised, including; without limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of the Cable System or of Cox. A rebuttable presumption of the existence of Control or a Controlling Interest shall arise from the beneficial ownership, directly or indirectly, by any Person or group of Persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of twenty percent (20 1/6) or more of any Person (which Person or group of Persons is referred to as "Controlling Person"), or being a party to a management contract to manage the Cable System in lieu of Cox. "Gross Annual Revenue" or "Gross Annual Receipts" or "Gross Receipts" means all revenue, as determined in accordance with Generally Accepted Accounting Principles, which is received, directly or indirectly, by Cox and by each Affiliated • Person from or in connection with the distribution of any Cable Service, and any IVA : Cox -CNB Franchise Agreement Page 2 other Service which may, under now or then applicable federal law, be included • in the Cable Act definition for the purpose of calculating and collecting the maximum allowable franchise fee for operation of the System whether or not authorized by any Franchise, including, without limitation, leased or access channel revenues received, directly or indirectly, from or in connection with the distribution of any Cable Service. It is intended that all revenue collected by Cox from the provision of Cable Service over the System, whether or not authorized by the Franchise, be included in this definition. Gross Annual Revenue also specifically includes any revenue received, as reasonably determined from time to time by the City, through any means which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the City for the Franchise granted. Gross Annual Revenue also includes any bad debts recovered. Gross Annual Revenue also includes all advertising revenue which is received directly or indirectly by Cox or any Affiliated Person from or in connection with the distribution of any Service over the System or the provision of any Service- related activity in connection with the System. Gross Annual Revenue does not include: (i) the revenue of any Person to the extent that said revenue is also included in the Gross Annual Revenue of Cox; (ii) taxes imposed by law on Subscribers which Cox is obligated to collect; and (iii) amounts which must be excluded pursuant to applicable law. B. Terms Not Defined _ Words, terms, or phrases not defined in the NBMC or herein shall first have the meaning as defined in the Cable Act, and then the • special meanings or connotations used in any industry, business; trade, or profession where they commonly carry such special meanings. If those special meanings are not common, they will have the standard definitions as set forth in commonly used and accepted dictionaries of the English language. 3. Scope of Franchise. A. Cox is authorized and obligated to construct, reconstruct, and operate the System within the public streets and rights -of -way. This authority includes the privilege to use Cox's cable television system in the Service Area, as defined in Section 14 below, (hereinafter the "System ") to provide Cable Service to customers in the Service Area located in all residential dwellings, commercial structures and industrial structures. B. This Franchise Agreement solely and exclusively creates, defines, and limits the legal rights and obligations between City and Cox and does not; in any way; obligate City to take any action; actions or refrain from taking any action, or actions, to or in relation to any third party. 4. Payments. Regular Percentage Franchise Fee. From and after the Effective Date, Cox shall pay a Franchise Fee, in quarterly installments, in a sum equal to five percent (5 %) of the Gross C� f� iJ 0 Cox -CNB Franchise Agreement Page 3 Annual Revenue. The Franchise Fee shall be paid to the City within forty -five (45) days after the close of the calendar quarter. Cox expressly acknowledges and agrees that: A. Except for the payments expressly required by this Section 4, none of the payments or contributions made by, or the services, equipment, facilities, support, resources, or other activities required to be provided or performed by Cox pursuant to this Agreement are franchise fees chargeable against the compensable payments to be paid'to City by Cox pursuant to this Section 4; and B. As applicable, except for the compensation payments expressly required by this Section, each of the payments or contributions made by, or the services, equipment, facilities, support, resources, or other activities to be provided by Cox, are voluntary and are not "franchise fees" within the meaning of the Cable Act (47 U.S.C. §542.(g)(2)); and C. The compensation payments due from Cox to City pursuant to this Section shall take precedence over all other payments, contributions, services, equipment, facilities, support, resources, or other activities to be paid or supplied by Cox pursuant to this Franchise; and D. '17te compensation and other payments to be made pursuant to this Franchise Agreement 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 Cox or any Affiliated Person shall be required to pay to the City or to any state or federal agency or authority, all of which shall be separate and distinct • obligations of Cox and Affiliated Persons; and E. Neither Cox nor any Affiliated Person shall have or make any claim for any deduction or other credit of all or any part of the amount of the compensation or other payments to be made pursuant to this Franchise 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 Cox or any Affiliated Person is required to pay to City or other governmental agency; and F. Neither Cox nor any Affiliated Person shall apply or seek to apply all or any part of the amount of the compensation or other payments to be made pursuant to this Franchise 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, each of which shall be deemed to be separate and distinct obligations of Cox and Affiliated Persons; and G. Neither Cox nor any Affiliated Person shall 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 • . Cox -CNB Franchise Agreement Page 4 utilities and cable operators or their services) as a deduction or other credit from • or against any of the compensation or other payments to be made pursuant to this Franchise, each of which shall be deemed to be separate and distinct obligations of Cox and Affiliated Persons; and H. City acknowledges that, during the term of this Agreement, Cox may offer to its subscribers, at a discounted rate, a bundled or combined package of certain cable services that are subject to the franchise fee referenced above in Section 4, and other services that are not subject to that fee. With regard to such bundled or combined services, the following provisions are applicable: During the term of this Agreement, if Cox offers to individual subscribers cable services subject to the franchise fee that are bundled or combined with non -cable services that are not subject to the franchise fee, then the revenue from those bundled or combined services must be allocated on the basis of proportionality, as follows: 1. The percentage that the price for all bundled services is discounted from the established retail rates for the individual services, as those rates are advertised by Cox in its marketing materials or published rate cards, will be prorated across all services in the bundled package, subject to the adjustment referenced below in Section 4(H)(2). Cox shall provide the City with the all requested information regarding the charge for each • individual service for any bundled package within ten (10) days of the City requesting this information. 2. The revenue derived by Cox from services that are subject to mandatory tariff rates imposed by the California Public Utilities Commission, or any similar governmental rate - setting authority, will be deducted from the aggregate revenue to determine the revenue that is subject to the franchise fee. By way of example, Cox may offer a bundle of voice, video, and data services for a flat fee of $75, where the aggregate retail rate of those services when purchased on an individual basis would equal $100. If there is no service in that bundled package subject to a mandated tariff rate, Cox would apply a 25 percent discount to each individual service. Thus, if the established retail rate for video service was then $50, Cox would recognize revenue in the amount of $37.50 and would pay a franchise fee on that amount. 3. Cox will not structure the pricing of any bundled or combined services so as to intentionally or unreasonably cause a reduction in the Gross Annual Revenue against which franchise the City may impose fees or other proportionately derived taxes, surcharges, or fees. 4. If City reasonably determines that Cox has unlawfully; inequitably, or contrary ao Section 4(I-1) allocated Gross Annual Revenue between video services and non -video services in calculating franchise fee payments, 0 Cox- CA?$FranchiseAgreement Page 5 then the parties will meet upon advance notice from the City to discuss the allocation methodology. If the parties cannot resolve the dispute within a • reasonable period of time, then the parties will submit the matter to a mutually agreeable third party for non - binding mediation. The parties will share the cost of the mediation equally. If the mediation is not successful, or if the parties cannot mutually agree upon a mediator, then either party may file an action in a court of competent jurisdiction or pursue any other remedies available under the law or this Agreement. I. If any franchise payment or recomputed amount is not made on or before the dates specified above in Section 4, Cox shall pay as additional compensation the greater of the following: 1. An interest charge, computed from the applicable due date, at an annual rate equal to the prevailing commercial prime interest rate in effect upon the due date, plus three percent (3 %). 2. In addition to any late payment made pursuant to this section, if a payment is late by sixty (60) days or more, Cox shall pay a sum of money equal to five percent (5 %) of the amount due in order to defray reasonable additional documented and itemized expenses and costs incurred by City as a result of such delinquent payment. 3. No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this Franchise, or for any other performance by Cox of an obligation hereunder. 4. Payments of compensation made by a Cox to the City pursuant to the provisions of this Franchise are in addition to, and exclusive of, any and all authorized taxes, business license fees, and other fees, levies, or assessments now in effect or subsequently adopted in accordance with state and federal law. 5. Letter of Credit. A. Pursuant to Section 5.44.060(B)(1)(a) of the NBMC, within thirty (30) days of the Effective Date of this Franchise; Cox shall post an irrevocable standby Letter of Credit in the amount of ($17.25 per current subscriber but not less than One Hundred Thousand Dollars ($100,000), The Letter of Credit provider shall have, at a minimum, a credit rating of A issued by Moody's or Standard & Poor's. The letter of credit shall incorporate wording approved by City enabling City to draw such sums from time to time as the City may find necessary to satisfy any material default of Cox or to meet any payment due City under or in connection with the NBMC or this Franchise, upon ten (10) days' written notice to the Letter of Credit provider. The Letter of Credit shall provide in :substance that, upon written notice by City of a material default or failure to make a payment due to • 0 Cox -CNB Franchise Agreement Page 6 City under or in connection with the NBMC or this Franchise, City may draw • upon the Letter of Credit without any offset, contingencies or conditions of any kind. This Letter of Credit shall provide that it may not be revoked or amended without City's prior written approval. Cox shall obtain prior approval by the City of the wording of the Letter of Credit, the form of the Letter of Credit, and the Letter of Credit provider. Such approval shall not be unreasonably withheld. B. The Letter of Credit requirement may, in the unilateral discretion of the City, be increased by up to three times its original amount if there is an assignment, transfer, and/or change of control of the Franchise and/or Cox. C. Uie Letter of Credit required by this Section satisfies the financial security requirements of this Franchise Agreement and is in lieu of a Security Fund or Faithful Performance Bond pursuant to Section 5.44.060(B)(1)(a) of the NBMC. b. Insurance. Within ten (10) days of the Effective Date of this Franchise, Cox, at its sole cost and expense, for the full 'term of this contract (and any extension thereof), shall obtain and maintain at minimum all of the following insurance coverage: A. Types of insurance and Minimum Limits. The coverage's required herein maybe satisfied by any combination of specific liability and excess liability policies. • 1. Workers' Compensation and Employers Liability Insurance in conformance with the laws of the State of California (not required if Cox has no employees). 2. Cox's vehicles, including owned, non -owned (e.g., owned by Cox's employees and used in the course and scope of employment), leased or hired vehicles, shall each be covered with Automobile Liability insurance in the minimum amount of two million dollars ($2,000,000) combined single limit per accident for bodily injury and property damage. 3. Cox shall obtain and maintain comprehensive or commercial General Liability Insurance coverage in the aggregate annual amount of two million five hundred thousand dollars ($2,500,000) combined single limit, including bodily injury, personal injury, and broad form property damage. Such insurance coverage shall include, without limitation: a. Contractual liability coverage adequate to meet Cox's indemnification obligations under this Contract; and b. Across- liability clause. C. Cox shall obtain and maintain SlanderlLibel Defamation Liability Insurance in the aggregate annual amount of one million dollars • ($1,000,000). 0 • • Cox -CNB Franchise Agreement Page 7 B. All required Automobile Liability insurance and Comprehensive or Commercial General Liability Insurance shall contain the following endorsement as a, part of • each policy: "The City of Newport Beach is hereby added as an additional insured as respects the operations of the named insured pursuant to cable television franchise as granted by the City and said insurance shall specifically cover the acts and omissions of Cox and the acts and omissions of its employees, agents and subcontractors in the performance of work hereunder." C. Within thirty (30) days from Effective Date of this Franchise, Cox shall furnish proof to City that a satisfactory insurance policy for all insurance required by this Franchise so that the City can ensure that the insurance is in place. The insurance policies for vehicles shall be in effect prior to usage and the City may, from time to time, reasonably increase the required amount of said insurance so long as said increased coverage is reasonably available at reasonable prices. D. The insurance required of Cox pursuant to this Franchise shall be primary and no insurance held by City shall be called upon to contribute to a loss under this coverage. E. All insurance policies shall provide that in the event of material change, reduction, or cancellation or non - renewal by the insurance carrier for any reason, • not less than thirty (30) days written notice will be given to City by registered mail of such intent to cancel, materially change, reduce or not renew the coverage. An authorized agent of such insurance carrier shall provide to City, on such schedule as is requested by City, a certification that all insurance premiums have been paid and all coverage's are in force. If for any reason Cox fails to obtain or keep any of such insurance in force, City may (but shall not be required to) obtain such insurance, in which event Cox shall promptly reimburse City its premium cost therefor plus interest at the City's portfolio rate until paid. F. All insurance shall be contracted through companies licensed to do business in California. G. Any deductible or self - insured retentions must be declared to and approved by City. At the option of City, insurer shall reduce or eliminate such deductible or self - insured retention as respects City, its officials officers, employees and agents; or Cox shall procure a bond guaranteeing payment of losses and related investigations, claims, administration and defense expenses. 7. Defense and Satisfaction of Claims. A. Cox shall, at the sole cost and expense of Cox, upon demand by City, defend City, . its officers, boards, commissions or employees, in any and all suits, actions, or • t� iCox -CNB Franchise .4 greement Page 8 other legal proceedings, whether judicial, quasi judicial, administrative, or ® otherwise arising out of the negligent or willful acts or omissions of Cox, its employees, subcontractors and agents. Where Cox is required to provide legal services to City under this paragraph, and chooses to utilize joint counsel, the parties shall make a good faith effort to cooperate and agree upon litigation strategy and implementation thereof. In the event that Cox's litigation strategy or choice of legal counsel create a conflict of interest, or result in inadequate representation to protect the City's interests and separate counsel is necessary for the representation of City, City may obtain separate legal counsel chosen by City at Cox's cost and expense provided, however, that if City obtains separate legal counsel as set forth above, Cox is only obligated to pay an hourly amount for legal services which does not exceed one hundred percent (100 %) of the highest hourly rate that City has paid for legal services within the twenty -four (24) month period prior to obtaining legal services as provided in this paragraph. City shall submit to Cox on regular basis statements for attorney's fees which shall be paid to City within sixty (60) days of Cox's receipt of said statement. B. Cox shall cause to be paid and satisfied any judgment, decree, or order rendered, made, or issued against Cox, City, its officers, boards, commissions, or employees, and hold City harmless therefrom, arising out of Cox's negligent or willful acts or omissions in connection with the construction; operation, maintenance, or other activities in relation to Cox's cable television system including, but not limited to, damages arising out of copyright infringement, • defamation, personal and property liability; and antitrust liability, whether or not said damages are compensatory or punitive; provided, however, Cox shall not be required pursuant to this paragraph to hold City harmless for actions relating to programming decisions outside of Cox's control. Such indemnity shall exist and continue without reference to the amount of any bond; policy of insurance, deposit, undertaking; or other assurance; provided, however; City may not enter into any compromise or settlement which imposes any obligation on Cox without Cox's consent, which consent shall not be unreasonably withheld, and Cox shall not make or enter into any compromise or settlement of any claim, demand, causes of action, suit, or other proceedings which settlement involves anything other than the payment of money by Cox without contribution by City, without first obtaining the written consent of City, which consent shall not be unreasonably withheld. C. The indemnification provided pursuant to paragraphs 7(A) and 7(B) above shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in those paragraphs, regardless of whether or not City has prepared, supplied, or approved the plans and/or specifications for the operation or regardless of whether or not any insurance policies shall have been determined to be applicable to any of such damages or claims for damages. • 6 0 Cox -CNB Franchise Agreement Page 9 8. Liquidated Damages and Other Remedies. A. Damages for Violation of Technical Standards Customer Service Standards and Other Violations. In addition to, and without limiting the damages for delays as specified in Section 4 of this Franchise, City may impose any of the other liquidated damages described below for the violations and in the amounts described below: 1. Technical Standards violations. If more than ten percent (,10 %) of the locations tested pursuant to FCC regulations fail to meet the FCC technical standards, City may impose liquidated damages in an amount equal to two hundred dollars ($200) per day, if Cox does not cure the violation in accordance with Section 8(B)(1) below. 2, Customer Service Violations. If Cox violates, in any material way, any of the customer service - standards specified in the NBMC or this Franchise, City may impose liquidated damages in the amount of two hundred dollars ($200) per violation per day if Cox does not cure the violation in accordance with Section 8(B)(1) below. 3. Other Violations. For all violations and breaches specified in the Franchise or the NBMC, the City may impose liquidated damages in the amount of two hundred dollars ($200) per day if Cox does not cure the violation in accordance with Section 8(B)(1) below. 4. Reduction of Damages and Letter of Credit. If City does not . impose any damages on Cox for delays in violation of technical standards, violation of customer service standards or for other violations in the four (4) year period which shall commence on the date which is sixty (60) days from the Effective Date of this Franchise, after such four (4) year period, the penalties contained in Sections 8(A)(1) and 8(A)(2) above shall be reduced to one hundred fifty dollars ($150) per day per violation, and the letter of credit contained in Section 5 above shall be reduced to seventy -five percent (75 %) of the original amount thereof, provided however, that the original, penalties and the original amount of the letter of credit, as increased as allowed herein upon transfer; assignment or change of control, shall be immediately reinstated if (a) City imposes two (2) penalties on Cox in any twelve (12) month period, and/or (b) if Cox assigns, sells, leases or otherwise transfers this Franchise or • control of the System. This entire paragraph shall immediately cease to • 0 Cox- CNBFranchise.Agreement Page 10 have any force or effect if City imposes a penalty or penalties on Cox within the four (4) year period which commences sixty (60) days from the Effective Date of this Franchise Agreement. B. Payment of Damages: Cure. In the event that City has reason to believe that Cox has failed to comply with any material provision of this Franchise or the NBMC and therefore desires to impose damages on Cox as stipulated above and /or in the NBMC City shall notify Cox in writing of the provision or provisions which City believes may be in default as well as the applicable cure period. Cox shall, upon receipt of said Notice: a. Cure the alleged violation within the cure period provided by the NBMC, or if no cure period is provided, within five (5) working days of said notice: In the event that Cox does not correct said violation within the applicable cure period, said liquidated damages may be imposed from the date of original violation; or b. Respond to City in writing during the cure period contesting City's assertion of violation and providing such information or documentation as may be necessary to support Cox's position and/or request an extension of the cure period. The decision to extend the cure period shall be within the sole discretion of the City; however such request for an extension of the cure period shall not be unreasonably withheld by City. 2. Appeal and Payment. In the event Cox fails to respond to said notice of violation, or to cure the violation within the applicable cure period, or provide an explanation for failure to cure acceptable -to City, City or its designee shall schedule a hearing no sooner than ten (10) days after written notice to Cox of the expiration of the cure period and the scheduling of said hearing. Cox shall be provided an opportunity to be heard at such hearing, including the right to present evidence, cross - examine witnesses; and be represented by counsel. Within thirty (30) days after said hearing, City shall determine whether or not Cox is in violation and submit written findings of facts supporting such determination. The hearing described above may be conducted, at City's selection, either before the City Council or before an administrative officer or commission selected by the City Council. In the event that said hearing is not held before the City Council, Cox shall possess the right to appeal said determination to the City Council within ten (10) days of issuance of the statement of decision and findings of fact. The City Council shall decide said appeal pursuant to a hearing at which *Cox -CNB Franchise Agreement Page 11 Cox has an opportunity to be heard and the right to present evidence, examine witnesses and be represented by Counsel. Cox shall have the • right to appeal the City Council's decision to a court of competent jurisdiction within ninety (90) days of any final decision by the City Council. In the event a court orders repayment of said liquidated damages from City to Cox, interest on such amounts shall be included at the rate paid by the Local Agency Investment Fund to the City for City Investments. All liquidated damages shall be due and owing thirty (30) days after the final decision by either the City Council or the hearing officer in the event of no appeal to the City Council. The aforesaid assessment may be levied directly against the letter of credit and collected by City thirty (30) days from date said damages are due and owing. Such assessment shall not constitute a waiver by City of any other right or remedy it may have under the Franchise or under applicable law including, without limitation, its right to recover from Cox such additional damages, losses; costs and expenses, including reasonable attorneys' fees, as may have been suffered or incurred by City by reason of or arising out of such breach of the Franchise. Nothing in this paragraph is intended to waive, modify or otherwise affect Cox's rights under the NBMC, this Franchise, or any applicable law; except for the specific procedures expressly provided herein, including without limitation the right to judicial review of the legal rights and obligations of the parties with respect to each other, Cox's right to challenge the decision of City under applicable legal standards, and/or any issue' of performance or breach by either party to this Franchise. C. Validity of Liquidated Damages. The parties acknowledge that it would be impractical or extremely difficult to fix actual damages in the case of Cox's default, and that the amount of damages specified above is a reasonable and complete estimate of City's damages. Cox recognizes that Cox's prompt development and offering of cable television service for which penalties can be imposed is of critical importance to City. City: Cox: (Initials) (Initials) D. Sole Financial Remedy. No financial penalties will be applied pursuant to Ordinance or other similar document for the same offenses to which the liquidated damages apply. u a2- • Cox -CNB Franchise Agreement Page 12 9. Cox Support for Development of Technology and Programming. Cox shall provide the following support for the purpose of technology development and implementing non - commercial public, benefit uses of the Cable System. The provision of the support items listed herein shall be considered as binding commitments of Cox within the terms of this Franchise, and if not provided, shall subject Cox to applicable remedies and penalties for violations of the Franchise. Cox shall provide the following support: A. Channel Capacity Requirements. Cox Support for Public, Educational or Government Access "PEG Access ": Cox shall designate three (3) channels for the exclusive use of the City ( "PEG channels "). The PEG channels shall be under the exclusive management and editorial control of the City and shall not be shared with other cities. The City may designate a representative, such as a non - profit entity, to use and administer to said channels, with all of the attendant rights and obligations provided to the City hereunder. In the event Cox is required by federal law, regulations; or otherwise to change the channel number of a PEG channel, Cox shall provide thirty (30) days advance notice to the City and its customers. Should Cox desire to change the channel number of a PEG channel that is in use by a PEG user within the criteria set forth in Section 9(A)(2) for any other reason, Cox shall provide the City with the reason for change at least ninety (90) days prior to the proposed change, advertise the change to customers on its website, in at least three (3) bill messages prior to the change, and in a television spot announcement that Cox shall carry on its system for at least six weeks prior to the change. Cox shall also reimburse the City for its actual costs for reprinting any materials such as program guides or other promotional materials occasioned by the change in an amount not to exceed $7;500.00 for its costs of remarketing the channel. 2. Cox shall make available additional PEG channels designated for use exclusively by the City pursuant to the following criteria: a. The initial governmental channels must be in use and programmed with non- commercial PEG programming, of which no more than ten (10) hours can be character generated programming, during at least 80% of the weekdays for at least 80 % of the time during any consecutive 6 -hour period for ten (10) consecutive weeks. b. The initial public and educational channel must be in use and programmed with non - commercial and at least 50% locally produced programming, of which no more than ten (10) hours per ® week can be character- generated programming during at least 80% 23 Cox -CNB Franchise Agreement Page 13 of the weekdays for at least 80% of the time during any consecutive 6 -hour period for ten (10) consecutive weeks. C. No more than 33 -1 /3% of the aggregate hours utilized for PEG programming during such ten week period can represent repeat programming, d. Any additional PEG channel shall be made available within 180 days following the City's written request and verification of compliance with each of the foregoing conditions.. e. Whenever such additional PEG channels but not the original three PEG channels, are programmed for less than ten (10) hours per day for six (6) days per week for a continuous period of not less than twelve (12) consecutive weeks, the City may permit Cox to utilize unused channel capacity on that channel under the following conditions: O Any request from Cox to use any fallow capacity designated for PEG Access must be submitted in writing to the City. (ii) The City shall approve the request from Cox to use fallow channel capacity if it finds that: (i) the utilization of the channel is as represented; (ii) Cox has not acted in violation of any of the provisions of the Franchise regarding utilization of the channel; and (iii) there are no special circumstances which would justify the denial or delay of implementation of the use of the channel. After approval, Cox may continue to utilize the channel for any other purposes it so chooses, consistent with the Franchise, until it is required to be designated for PEG purposes pursuant to the provisions hereof. (in) Unless Cox receives written notice within one hundred and twenty (120) days that the City disapproves Cox's request, the: City's approval shall be deemed granted. f. The maximum number of access under this Franchise shall be five exchange channels, as set forth Cox, City may exchange each digitally compressed channels u conditions: channels which may be required (5), subject to the City's right to herein. On six months notice to analog PEG channel for four (4) pon satisfaction of the following • 2a • Cox -CNB Franchise Agreement Page /4 (i) Cox provides digitally compressed channels which offer at • least as many services as are available by analog channels on the system; and (ii) Digital decompression terminal devices are installed in the homes of a least 50% of Cox's subscribers, and are used to receive Cox's services; and (iii) City provides six (6) months notice to Cox. (iv) City provides written waiver of any state or federal laws pertaining to requirements for the placement of such channels. As used in this section, a "digitally compressed channel" shall mean a data stream capable of delivering video programming on a basis comparable to the delivery of other digitally compressed video programming. 3. The City shall have sole responsibility for the administration and programming of the Governmental channel(s) provided by Cox, including without limitation, the carriage of programming on the channel(s) to include trafficking of tapes and playback and the establishment and administration of all rules, regulations and procedures pertaining to the use and scheduling of the programming presented over the channel(s). The channel(s) shall be used for noncommercial, public; governmental or educational programming. In relation to the public access channel(s), Cox shall continue its current practices of providing studio facilities, equipment, trafficking of tapes, playback, for public access users in a quality and quantity generally consistent with that provided over the past franchise term. 4. City and Cox acknowledge that there are certain logistic and technical issues that remain unresolved as of the Effective Date due to the fact that two separate cable companies provide cable service in the City of Newport Beach and the City Hall main operation for PEG Channel(s) resides in the cable service area of another cable service provider. Cox agrees to work in good faith to resolve any logistic and technical issues to ensure seamless quality and continuity of PEG channel(s) access by the City's citizens including but not limited to: a. Allowing physical playout equipment and signal to remain at Cox's Rancho Santa Margarita facility or arranging for transfer of decks and racks in the City Hall area at a mutually agreeable location; b. Ensuring that signal transmission/reception mutual exchange • across cable service boundaries is accomplished; and 25 u 0Cox- CNB,Franehise Agreement Page 15 C. Ensuring continuation of transmission/reception across the two cable systems. . B. A Grant in the amount of sixty dollars ($60.00) per Basic Service Tier subscriber ( "BST ") of Cox in the City as of the Effective Date ( "Threshold Subscribers ") shall be paid by Cox to be utilized for any capital or non - capital purposes (the "Initial Grant'). Said Initial Grant shall be paid by Cox within thirty (30) days of the Effective Date of this Agreement. C. On January 1, 2010, the City shall provide Cox with a list of newly constructed residential units which have been constructed in the City subsequent to the Effective Date, if any, (the "Construction List'). Within thirty (30) days of receipt of the Construction List, Cox shall determine and report in writing to the City the number of newly constructed units which are BST Subscribers as of that date (the "New Construction Subscriber List "). Cox shall also report to the City the number of BST Subscribers contained in the City other than those subscribers set forth on the New Construction Subscriber List (the "Continuing Subscribers "). Within ten ('10) days thereafter, Cox shall pay to the City an additional grant (the "Additional Grant") equal to the number of New Construction Subscribers, less the difference between Threshold Subscribers and Continuing Subscribers times $30.00 per subscriber. D. City and Cox agree that said Initial Grant and Additional Grant are neither franchise fees nor offsettable against franchise fees, irrespective of how they are • expended, for the purposes of the Cable Act. City shall waive normal permit fees, but not inspection fees, for residential dwelling units, constructed subsequent to the Effective Date in new subdivisions where Cox installs its cable television plant in otherwise open trenches along with other utilities at the time of new subdivision construction. Other than the waiver of normal permit fees as provided above, Cox will comply with all other City requirements. E. In the event any dedication to PEG Programming required by this Franchise is deemed by a legislative body, administrative body, or court of competent jurisdiction to constitute a payment which must or may be offset against the franchise fee, City hereby reserves the right, but is not required to do so, to terminate said program and/or requirement so as to provide the maximum allowable franchise fee. Cox shall not offset any charge,, of any kind, against a franchise fee or other payment due City without prior written consent of City.. Nothing in this Franchise is intended, and shall be so construed, to confer any third party beneficiary rights on any party(s), and no rights are created by this Agreement other than rights in City and Cox. 10. Governmental and Institutional Drop Policy; Provision of Live Local Insertion Locations. A. Drops to City Facilities. • Zv • . Cox -CNB Franchise Agreement Page 16 Within one hundred eighty (180) days of written notice provided by the City, Cox • shall provide, without charge, up to four (4) cable drops, as determined by City, for all levels and all tiers of Cable Service per building, excluding premiums and pay- per -view, a cable modem drop, and cable modem service (residential speed of up to 3 mbs) per drop for those buildings, institutions and facilities on Exhibit "A ", plus those buildings, institutions and facilities which are constructed subsequent to the Effective Date of this Franchise Agreement; as designated by City in writing. Except for a City Hall which shall be served irrespective of distance if it is located in the Service Area, existing or future, which Cox shall construct at its sole expense drops to all buildings, institutions and facilities which are constructed subsequent to the Effective Date of this Franchise Agreement shall be limited to 250 feet from the closest point to Cox's distribution, system. In the event that requested drops exceed said distance, Cox shall determine the incremental cost beyond said distance and the City shall pay such incremental costs to Cox upon completion of construction. Cox shall not impose programming or other charges for any additional outlets within said buildings. Installation and maintenance of interior wiring of said building(s) beyond the four (4)- drops per building shall be the responsibility of the building owner, provided that if Cox is requested to install such wiring, it will do so within a reasonable time at its actual cost of labor and materials. B. Live Insertion Locations. • Within one hundred eighty (180) days of written notice provided by the City, Cox shall provide live insertion points at the locations set forth on Exhibit `B" by way of fiber connection so that the City can insert and transmit audio, video, and digital programming from said site to Cox's headend for retransmission over one or more of the PEG Channels specified in Section 9(A) (collectively, the "Return Feeds "). The Return Feeds shall be constructed pursuant to technical standards mutually agreed upon by Cox and the City (the "Design Specifications"). The City shall possess no obligation to insert programming upon the Governmental Channel pursuant to Section 9(A) (3) until such time as the Return Feeds are constructed and activated pursuant to the Design Specifications. Within one hundred and twenty (120) days of the completion and activation of the Return Feed, any playback of local government programming or insertion of audio, data or other information on the Government Access channel shall be the sole responsibility of the City. 11. Services and Broad Categories of Video Programming. Cox should provide, at a minimum, the following broad categories of services and video programming: local broadcast, public affairs, satellite services, news, sports, cultural, foreign language programming, general entertainment, and children's. If any listed broad category of service or video programming shall become unavailable, or is commercially, impractical, or cannot be provided under existing FCC regulations, Cox should provide substitute programming of the same category if reasonably available. City may request ® Cox to cooperate with City in developing and distributing a printed PEG channel guide at �O 12. • Cox -CNB franchise Agreement Page 17 City's cost. Said printed guide shall be of a reasonable weight and size and could include, but is not limited to, a printed guide distributed through the bills, via direct mail, or included in local newspaper or Cox's printed guide, all at City's cost, if any, but shall not include advertising. If City requests Cox to distribute a printed guide through the bills; Cox shall comply so long as City produces said guide at its own cost for production and insertion and provides Cox sufficient advance notice and there is room for said guide in Cox's billing envelopes, and said guide does not take the place of other inserts desired by Cox. City shall have complete responsibility for the content of any information included in said guide. The payments by City referred to in this Section shall be limited to reimbursing Cox's actual incremental cost of providing and distributing the guide.. Minimum System Design and Capacity Requirements. A. Channel Capacity. The cable television system shall be constructed with hybrid fiber coax ( "HFC ") architecture and engineered to deliver signals at forward frequencies up to and including a minimum bandwidth of seven hundred and fifty (750) megahertz (MHz) on the Residential Network. The System will be engineered to allow simultaneous downstream delivery of no less than one hundred ten (I 10) analog video channels and shall be constructed pursuant to the specifications and routing described herein. & Interactive Capacity and Services. The cable television system shall be two -way activated in all of the distribution plant. C. Minimum Design Criteria. In addition to the requirements of Section 12(A) -(B) above, minimum system construction requirements shall be as follows:: 1. Cox shall at all times maintain equipment capable of providing standby power for the entirety of the cable system for a minimum of two hours. 2. Emergency Override System. a. Cox shall provide, install, activate, and maintain an emergency override system which includes audio override on all analog channels of Cox's system and character generated message capabilities on a designated channel, receivable only within the City. City shall be able to activate, provide audio programming, and terminate such emergency audio override via dial -up or dedicated telephone control upon system upgrade. City shall use the audio override and character generated system only in emergency situations, as declared by the City Council or the City • 0 • 0 Cox -CNB Franchise. Agreement' Page I8 Manager when there is threat to the public welfare, health or • safety. b. In addition to subsection (a) above; and in accordance with the provisions of FCC Rules and Regulations Part 11, Subpart D, Section 11.5(h)(1), and as such provisions may from time to time be amended, Cox shall install and maintain an Emergency Alert System (EAS). As allowed by FCC Order FCC 97 -338,; Paragraph 33, Cox shall transmit all national, state, and local activations of the Federal EAS, utilizing the four -part message protocol specified in FCC Rules and Regulations Part 11, Subpart B, or successor protocols. This shall include such local and state -wide situations as may be designated to be an emergency by the Local Primary (LP), the State Primary (SP) and/or other authorities identified and defined within FCC Rules and Regulations, Part 11 or the Local and State Plans provided for under those rules. 3. Cox shall provide subscribers, upon request, with a parental control locking device or digital code or other means that permits inhibiting the viewing of parental designated channels. 4. All new underground trunk and distribution cables shall be in conduit. 5. Minimum Technical Standards for Forward (Downstream) and Reverse • (Upstream) Directions. The minimum technical standards shall be those adopted by the FCC from time to time'. To the extent that no FCC standards exist, the standards shall be those FCC technical standards in effect on the Effective Date; or, if none, those established by City. 13. Universal Service. Cox shall design, construct and maintain the cable television system in such a manner as to pass by every existing single: or multiple - family dwelling unit in the City and shall make the system available on an identical basis to all single or multiple family dwelling units constructed during the term of this Franchise. For new construction in residential and industrial areas, Cox shall make the system available at the, same time as the units, residential, or otherwise, are constructed. Nothing herein shall preclude Cox from providing service to multi - family dwellings and other residential developments on a discounted bulk - billing basis. 14. System Extension Policies. Description of Service Area(s). A. The service area shall constitute that portion of the City set forth on Exhibit "C" • (the "Service Area "). 9h 15 16. • • Cox -CNB Franchise Agreement Page 19 B. All subscribers, residential, or otherwise, within one hundred twenty -five (125) feet from the closest public right -of -'way or easement, shall be provided service • for the standard installation fee. Subscribers located beyond one hundred twenty - five (125) feet from the closest public right -of -way or easement will be connected upon the payment of Cox's time and materials for that portion of the installation which exceeds one hundred twenty -five (125) feet. Provision of Service. Unless the subscriber requests otherwise, Cox shall deliver initial service within seven (7) business days after receipt of a subscriber order so long as the subscriber is within the existing Service Area. Service additions or deletions shall be made within twenty -four (24) hours of a subscriber request, unless additional terminal equipment is required, in which case Cox shall make such service change within seven (7) calendar days. Cox shall provide all subscribers, prior to the initiation of cable service and thereafter, with the ability to subscribe to only Basic Service. Technical Standards Testing. A. Cox's cable television system shall be periodically tested by Cox, at Cox's sole expense, at the times, and pursuant to the procedures, described in the then applicable rules and regulations of the FCC or, if no such rules and regulations exist, in the manner prescribed in rules and regulations in effect on the Effective Date. B. Reimbursement of City Expenses. City shall bear all costs associated with its • attendance, either directly or through an independent consultant, in the initial testing but not retesting procedure described herein except as provided below: 1. Upon written request by the City and based on a pattern of customer complaints to the City regarding system performance, Cox shall measure and report to City the number of service complaints, which related to customer dissatisfaction with the quality of the picture excluding partial or total system outages. The number of said complaints over the first twelve (12) month period after the Effective Date shall be divided by twelve (12) and constitute the "base year average monthly subscriber complaints for the purposes of this paragraph. 2. At the conclusion of said twelve (12) month period, Cox shall calculate and report to City monthly the number of subscriber complaints relating to the quality of the picture ( "Monthly Subscriber Complaints "). Said information shall be provided to City within fifteen (15) working days of the last day of each calendar month. 3. So long as Monthly Subscriber Complaints, as defined herein, remain within twenty percent (20 %) of the base year average monthly subscriber complaints, as defined herein; City shall bear all costs relating to its • 2O • •Cox -CNB Franchise Agreement Page 20 participation in the technical standards testing process defined herein. However, if, for any given two (2) consecutive months or any three (3) nonconsecutive months in any six (6) month period, said Monthly Subscriber Complaints increase more than twenty percent (20 %) over the base year average Monthly Subscriber Complaints, Cox shall reimburse City for City's actual and reasonable cost of supervising and /or participating in the technical standards testing for a three (3) quarter period commencing upon the occurrence of the contingency(ies) provided herein if the unsupervised periodic testing, as defined herein, indicates that Cox's system during said period is operating in conformance with the technical performance standards provided by Section 12 hereof. Cox shall reimburse City for any and all costs incurred by it in monitoring Cox's technical standards testing for twelve (12) months subsequent to a determination by City that liquidated damages pursuant in Section 8(A)(2) may be imposed. 4. Subscriber Complaint Log. Cox shall maintain a written or computerized record of subscriber complaints, including: loss of signal requiring a field visit, non- receipt of programming or services ordered, billing disputes, missed appointments, unsatisfactory performance of maintenance, malfunctioning signal traps on blocked channels, and unresolved or chronic technical problems. Said record shall indicate: a. Date and time of Subscriber complaints; b. Street name of complainant; C. Nature of complaint; d. Cox's action(s) to resolve complaint; and e. Date(s) and time(s) actions(s) taken. Said record shall be kept at Cox's local office for a period of two (2) years. A copy of said Subscriber complaint record shall be submitted by Cox to City within ten (10) working days following receipt of a written request by City. 5. To the extent that Cox maintains and provides Subscriber complaint information consistent with the above requirements; it shall be deemed to have maintained and provided sufficient Subscriber complaint information as required by this paragraph. 17. Equipment in Rights of Way. A. Design and construction requirements, permit and other fees, public and customer notifications, requirements for public communication, and other oversight requirements by City imposed on Cox shall be consistent to the extent legally s Cox -CNB Franchise. Agreement . Page 21 permissible and technically feasible, with those requirements imposed upon other users of the public rights -of -way and easements within the City. • B. The Cable System shall be constricted or installed in the City only after the express written approval of the City and only at such locations and in such manner, design, and size as shall be approved by the City. In granting such approvals, the City shall exercise reasonable discretion in accordance with applicable law. Upon Cox's written request, City staff shall meet and confer with Cox in order to develop a process for expediting City processing and approval of proposed Cable System installation of multiple "like- kind" facilities. C. The Cable System shall be placed underground or where all other utilities are located in all areas which are subject to the provisions of the NBMC unless otherwise approved by the City Engineer. Such approval shall not unreasonably be withheld. D. All construction or maintenance work shall be conducted in a good and workmanlike manner consistent with industry standards. Installation of new facilities shall occur, whenever practical, concurrent with the installation of subdivision public improvements. E. Upon its receipt of reasonable advance notice, not to be less than five (5) business days, Cox shall, at its own expense, protect; support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of Cox when lawfully required by City by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers; drains, gas or water pipes, or any other type of structures or improvements by the Franchising Authority; but, Cox shall in all cases have `the right of abandonment of its property. 18. Franchise Term. The term of this franchise shall commence upon its approval by the City Council (the "Effective Date "), and shall expire on April 1, 2011. At Cox's written election filed with the City no later than January 1 2010, Cox may extend the Initial Term by seven (7) additional years so that the Franchise will expire on April 1, 2018. 19. Most Favored Nations.Review. A. At any time and at City's request, Cox shall provide information on any Cable Services not being provided in the City which are being provided on an operational basis in systems operated by Cox, or any affiliate thereof in the States of California, Arizona and Nevada (the "Comparison Systems "). For purposes of this section, "operational basis means that Cox has offered a Cable Service to all Subscribers in the Comparison Systems for at least six (6) months, but does not include Cable Services that are offered on a trial or test basis to a limited number of subscribers. • 3ti • Cox -CN8 Franchise Agreement Page 22 B. If Cox is providing Cable Services on an operational basis in any Comparison Systems, City may require Cox, and Cox shall comply, to provide said Cable Service(s) within one (1) year of the City's written request, and to upgrade its Cable System, if necessary, to provide said Cable Service. Further, City shall reasonably consider not requiring such service based upon information supplied by Cox but, after considering said information, may still require the provision of these Cable Services. C. After the Effective Date of the Franchise, if Cox, or any affiliate, parent, or subsidiary thereof, enters into any renewal, franchise extension, of a franchise or a new franchise to provide cable television service to any city located within Orange County or the County of Orange itself, within thirty (30) days thereof, Cox shall provide to the City a copy of the Other Franchise. D. In the event that the City concludes that the Other Franchise contains terms, conditions or provisions regarding Public, Educational or Government access (the "PEG Access Provision "), including, without limitation, the financial support thereof) or Cable System Technology (i.e., channel capacity, services offered, etc.) (hereinafter the "Technology Provision "), as originally contained therein or as modified that are more favorable than those contained in the Franchise, when considering the Franchise and its requirements as a whole, then the City may, at its sole discretion, require Cox to provide the more favorable PEG Access Provision and the more favorable Technology Provision, or either of them; provided, however, (1) the City must notify Cox in writing of its election to require Cox to provide the more favorable provision within one hundred eighty (180) days of the City's receipt of the Other Franchise or the City shall be deemed to have irrevocably declined to impose such requirement; and (2) any requirement imposed pursuant to this paragraph of the Franchise to incorporate the more favorable PEG Access Provision and the Technology Provision; or either of them, shall also include, upon Cox's identification and request, the imposition of any and all other terms or conditions in the Other Franchise which are more favorable to Cox than those contained in the Franchise when considering the Franchise and its requirements as a whole, (by way of example, if the Other Franchise contains a franchise fee less than the franchise fee in the Franchise or has a term longer than the term of the Franchise, then the Franchise shall be modified to include such more favorable terms to the City at the same time that the Franchise is modified to include the more favorable PEG Access Provision or the more favorable Technology Provision). E. Cox shall provide the same Cable Services to customers in the City as it °provides to customers in communities served off the same headend as of the date of this Agreement. In the event Cox deploys new or different Cable Services as a result of a Cable System upgrade in one or more of the communities served off the same headend as of the date of this Agreement, then Cox shall deploy those new or different services within 24 months to customers in the City provided however Cox may request an extension for good cause and the City may or may not in its isdiscretion consent to the extension. 33 20.. 21. 22. 23. Construction Responsibility. • Cox -CNB Franchise Agreement Page 23 Cox shall be responsible for the acts and omissions of its contractors, subcontractors and employees. Only authorized employees and/or agents of Cox shall apply for and be issued all necessary permits and building authorizations. Cox shall designate to City a construction manager who is an employee of Cox to be contacted regarding all cable construction issues. Compliance with Construction Standards. Cox shall not construct any portion of its cable television system in City streets and rights -of -way without obtaining all necessary City building permits and paying in addition to, the franchise fee; all then applicable fees to the extent legally and practically feasible to be required of all users of the public rights -of -way and public utility easements and shall only construct said system in accordance with City standards for methods of construction in public rights -of -way: Compliance with all Laws, City Orders and the NBMC. A. Cox shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Cox shall conform to applicable City, county, state and federal laws; rules, regulations and permit requirements.. B. Cox shall promptly comply with all lawful City orders, resolutions and the NBMC related to Cox'-s operation of the System, including all lawful rate orders. Failure to so comply shall be considered a breach of this Franchise and shall subject Cox to (1) all liquidated damages- contained in this Franchise and the NBMC, and (2) all other actions; remedies and penalties available to City as a result of such failure to comply.. C. In accepting this Franchise, the Company agrees that the commitments indicated in Section 9 above are voluntarily entered into and shall not be charged against any Franchise Fees due the City during the term of the Franchise. The Company agrees to meet all of the commitments of Section 9 above, through the term of the Franchise. Performance Audits. City may require, at its option, that performance audits of the System be conducted every two (2) years by an independent technical consultant selected and employed by City at its sole expense to verify that the System complies with all technical standards and other specifications of the Franchise. • 3y • • Cox -CNB Franchise Agreement Page 24 24. Franchise Construction. This Franchise shall be construed according to the internal laws of the State of California and all federal laws of the United States. Any action brought relating thereto must be brought exclusively in the state or federal courts located in Orange County, California. 25.. Notices. Any notice required to be given by this Agreement shall be presumed given five (5) days after deposit in the United States mail, properly addressed by certified mail and return receipt requested, as follows: To City: City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 With a COPY to: City Attorney City of Newport Beach 3300 Newport Blvd, Newport Beach, CA 92663 To Cox: Cox Com, Inc; Cox Communications Orange County 29947 Avenida de las Banderas Rancho Santa Margarita, CA 92688 Attn: Vice President, Government Affairs With a COPY to: Coxcom; Inc. Attn: Director, Government Affairs 1400 Lake Hearn Drive Atlanta, GA 30319 26. Pass - Through of Expenses. Cox will not separate out, line itemize, or surcharge the cost of the Initial Grants and the Additional Grants described in Section 9 or any other cost related to this Agreement (except the franchise fee) as a line item on City customer's cable bills. Additionally, Cox shall not impose rates and charges on subscribers which are higher for like -kind services or of packages of services than those imposed upon subscribers in any of the cities of Mission Viejo, Laguna Hills, Tustin, Rancho Santa Margarita, and Aliso Viejo. 0 3� • • Cox -CN6 Franchise Agreement Page 25 27. Possessory Interest. By accepting this Franchise, Cox acknowledges that notice is and was hereby given to Cox pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property pursuant to the authorization herein set forth may create a possessory interest which may be subject to the payment of property taxes levied upon such interest.. Cox shall be solely liable for, and shall pay and discharge prior to delinquency; any and all possessory interest taxes or other taxes levied against Cox's right to possession, occupancy or use of any public property pursuant to any right of possession, occupancy or use created by this Franchise. Cox shall not be barred from challenging such try on any amounts assessed pursuant thereto. 28. Rates. City may, without amendment of this Franchise; regulate Cox's rates, charges, and prices to the maximum extent permitted by law. 29. Force Majeure: In the event Cox's performance of any of the terms, conditions, obligations or requirements of this Franchise is prevented or impaired due to any cause beyond its reasonable control and not reasonably foreseeable, such inability to perform shall be deemed to be excused, and no penalties or sanctions shall be imposed as a result thereof. Such causes beyond Cox's reasonable control and not reasonably foreseeable shall include, but not be limited to, any acts of God, civil emergencies, labor unrest, strikes, • inability to obtain access to an individual's property and any inability of Cox to secure all necessary permissions or permits to utilize necessary poles or conduits so long as Cox utilizes due diligence to timely obtain said permissions or permits. 30. Meet and Confer. Prior to exercising any rights of audit or inspection upon Cox pursuant to Chapter 5.44 of the NBMC, City and Cox shall reasonably attempt to meet and confer to achieve voluntary compliance. 31. lntemretation. The terms of this Franchise shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Franchise or any other rule of construction which might otherwise apply. 32. Successors and Assigns. All provisions of this Agreement shall apply to any lawful successors and assigns. • 3 ('� rCox -CNB Franchise Agreement Page 26 33, Severability. If any provision of this Agreement or the application of such provision to any circumstance is rendered unconstitutional or otherwise invalid by any law; ordinance, regulation or court of competent jurisdiction, the remainder of this Agreement or the application of the provision to other circumstances, shall not be affected thereby. 34. Rights Cumulative. The rights and remedies of the parties pursuant to this Franchise are cumulative, except as otherwise provided in this Franchise, and shall be in addition to and not in derogation of any other rights or remedies which the parties may have with respect to the subject matter of this Franchise. 35. No Waiver. A waiver of any right or remedy by a party at any onetime shall not affect the exercise of said right or remedy or any other right or other remedy by such party at any other time. The failure of the City to take any action in the event of a material breach by Cox shall not be construed or otherwise be deemed to constitute a waiver of the right of the City to take such action at any other time in the event that said material breach has not been cured, or with respect to any other material breach by Cox. 36. Declaration of Invalidity. ® In the event that, after the Effective Date of this Franchise, any court, agency, commission, legislative body, or other authority of competent jurisdiction: (A) declares that this Franchise is invalid, in whole or in part; or (B) requires Cox either to: (1) perform any act which is inconsistent with any provision of this Franchise or (2) cease performing any act required by any provision of this Franchise, City shall reasonably determine whether said declaration or requirement has a material and adverse effect on this Franchise. When Cox intends to exercise its rights pursuant to such declaration or requirement, Cox shall so notify the City Manager's Office of said declaration, or requirement. If the City determines that said declaration or requirement does have a material and adverse effect on this Franchise; then Cox shall then enter into good faith negotiations with the City to amend this Franchise to eliminate any inconsistency or conflict between said declaration or requirement and the provisions of this Franchise and to meet the original intent of the parties as the circumstances warrant. 37. Time of the Essence; Maintenance of Records. In determining whether Cox has substantially complied with the Franchise, the City and Cox agree that time is of the essence. As a.result, Cox's failure to complete construction, extend service, seek approval of transfers, or provide information in a timely manner shall constitute substantial breaches of material terms of the Franchise. Maintenance of records and provision of reports in accordance with the Franchise is also an essential part of this Franchise Agreement. 1 1) 0 38. Exhibits. • Cox -CNB Franchise agreement Page 27 Exhibits "A through "C" are an integral part of this Agreement and these Exhibits are incorporated herein by reference. All references to this Agreement shall include all Exhibits. In recognition of the obligations stated in this Agreement, the parties have executed this Agreement on the date indicated above. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACIL A Municipal Corporation Don Webb, Mayor for the City of Newport Beach COXCOM, INCORPORATED A Delaware corporation dba Cox Communications Orange County By: Title: (Corporate Officer) Print Name: By: (Financial Officer) Title: Print Name: LJ 10 • EXHIBIT A Wax-CM Franchise Agreement Page 28 Drops to City Public Buildings; Institutions and Facilities 1. Central Library —1000 Avocado Avenue 2. Police Department — 870 Santa Barbara Drive 3. Fire Station 3 — 868 Santa Barbara Drive 4. Fire Station 5 /Corona del Mar Library — 410 & 420 Marigold Avenue 5. Fire Station 8 — 6502 Ridge Park Road 6, Big Canyon Reservoir— 3300 Pacific View Drive 7. Oasis Senior Center — 800 Marguerite Avenue. 8. Grant Howald Park/Community Youth Center 3000 Fifth Avenue 9. Newport Coast Community Center — NP Coast Drive & San Joaquin Rd 10. Between the Police Facility and Newport Coast Fire Station 11. Andersen Elementary —1900 Port Seabourne Way 3 0 EXHIBPC B Live Local Insertion Locations 1 Police Department Emergency Operations Center 2. Central Library Friends Meeting Room 3, Oasis Senior Center Community Meeting Room 4. Newport Coast Community Center Meeting Room Cox -CNB Franchise Agreement Page 29 r • I �Cox-CNB Franchise Agreement Page 30 EXHIBIT C Cox Service Area Cable TV Franchise Areas; City of Newport ueod, i t R � lT bq �4 91 v {N %Fy � C'bk P—M, Co. ra a 4 ' � r r Al pr • • • CITY OF NEWPORT BEACH. 1`vt CITY COUNCIL STAFF REPORT �-35-Db Agenda Item No. S16 July 11, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 9491644 -3002 or dkiff@city.newport-beach.ca.us SUBJECT: CABLE TELEVISION: RESOLUTION NO. 2006- EXPRESSING THE CITY'S INTENT TO ADOPT A FRANCHISE AGREEMENT WITH COX COMMUNICATIONS ISSUE: Should the City prepare to adopt a Franchise Agreement with Cox Communications? • RECOMMENDATION: Adopt Resolution No. 2006 -_ expressing the City's intent to adopt a Cable Communications Franchise Agreement with Cox Communications during a public hearing. DISCUSSION: The City Charter (Section 1301 -see below) directs us to notice and conduct a public hearing in advance of considering a new franchise. Because City staff intends to bring to Council a draft Cable Communications Franchise Agreement (and its related ordinance) with Cox Communications on July 25', the action proposed in this staff report meets the requirements of Section 3101 relating to a Resolution of Intention for the public hearing. Section 1301. Resolution of Intention. Notice and Public Hearing. Before granting any franchise, the City 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 if 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 City Council and be heard thereon. It shall direct the City Clerk to publish said resolution at least once, within fifteen days of the passage thereof, In the official newspaper. Said notice shall be published at least ten days prior to the date of hearing: At the time set for the hearing the City Council shall proceed to hear and pass upon all • protests and its decision thereon shall be Anal and conclusive. Thereafter it may by ordinance grant the franchise on the terms and conditions specified in the resolution of • Resolution of Inta Cable Franchise Agreement July 11, 2006 Page 2 intention to giant the same, subject to the right of referendum of the people, or it may deny the same. if the City 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. 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 Kiff Assistant City Manager Attachments: Resolution 2006- • • Resolution of Intb* Cable Franchise Agreement July 11, 2006 Page 3 RESOLUTION NO. 2006- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO CONDUCT A PUBLIC HEARING TO CONSIDER THE GRANTING OF A NON - EXCLUSIVE CABLE SYSTEM FRANCHISE TO COXCOM INCORPORATED WHEREAS, the City Council finds and determines that providing cable service within the City is a vital public service and is a matter of great public concern because cable providers use the public right -of -way, provide Public, Educational, and Governmental ( "PEG ") access within the franchise area, and collect personal information regarding subscribers creating a need to protect the rights of subscribers; and, WHEREAS, non - exclusive franchises for use of the public right -of -way to provide cable services will promote the public health, safety, and welfare by promoting permanence and stability among those businesses wishing to provide such service and ® accountability to the City for compliance with current and future state and federal mandates; and, WHEREAS, pursuant to Article XIII of the City Charter and pursuant to Newport Beach Municipal Code section 5.44.030, the City is authorized to grant a franchise to provide cable service with private cable service providers; and, WHEREAS, CoxCom Incorporated ( "Cox ") has requested a non - exclusive franchise to provide cable service. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: A public hearing shall be conducted on July 25, 2006, at 7:00 p.m., or as soon thereafter as practical, in the City Council Chambers, 3300 Newport . Boulevard, Newport Beach, California, to consider the granting of a franchise to Cox pursuant to the following terns and conditions: a. Franchise effective date: The franchise will be effective upon approval of the City Council. ® b. Franchise fee: Five percent (5 %) of gross annual revenue. , •1 Resolution of In* Cable Franchise Agreement July 11, 2006' Page 4 c. Grant: Sixty dollars ($60.00) per basic service tier subscriber of Cox in the • City as of the effective date with an additional grant of thirty dollars ($30.00) per basic tier subscriber located in newly constructed units as of January 1, 2010. d. Term of Franchise: From the effective date to April 11 2011 with an option to extend the initial term for seven (7) years to April 1, 2018. e. PEG access: Three (3) PEG channels with the option to increase the number of channels up to five (5) PEG channels depending upon demand. f. Letter of credit: Seventeen dollars and twenty five cents ($17:25) per subscriber, but not less than one hundred thousand dollars ($100,000.00). g. Laws: Franchisee shall comply with all State, Federal laws and regulations, terms and conditions of the franchise agreement, and City Charter and Municipal Code. Section 2: The City proposes to offer a non- exclusive cable service franchise to is Cox which is presently licensed and permitted to conduct business in the City. Persons who have an interest in or objection to the proposed franchise may appear before the City Council and be heard on the date and time listed above. Section 3: This Resolution of Intention shall be published in the City's official newspaper within fifteen (15) days of its adoption and at least ten (10) days prior to July 25. 2006. ADOPTED this day of ATTEST: LaVonne Harkless, City Clerk 200_ Don Webb, Mayor • 0 Audlorz^d to Publish Advertisements of all kind, including public notices by De - of the Suprror Court of Orange Co>mty, California_ Nor A-6214. Seotember 29, 1961, and A- 24831 June 11, 1963. PROOF OF PUSLICA I ION STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. I am a principal clerk of the NEWPORT BEACH - COSTA MESA DAILY PILOT, a newspaper of general circulation; printed and published in the City of Costa Mesa, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published on the following dates: JULY 15,2006 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on JULY 1512006 at Costa Mesa, California. Signature RECEIVF0 006 JL 21 A91 I OFFICE OF THE CITY CLERK CITY OF NEWPORT BEACH a. Franchise e1Tec- tive date: The franchise 'u be effective upon PISOWTN)N NO. 20W67 w approval of the City A. RESOLUTION OF Council, THE CRY COUNCIL OF . b. Franchise tee: THE CITY NEWPORT Five percent (5 %) of REACH DECLARING ITS I gross annual revenue. INTENTION TO CON-1 c. Grant: Sixty basic DUCT A PUBLIC NEAR- tars ($60.00) per basic IRO TI CONSIDER THE I service tier subscriber GRANTING NON- of Cox in the City as of CABLE EXCLUSIVE SY effective date with TEM FRANCHISE TO O an an additional grant of RATED INCO RPO- thirty dollars ($30iber RATED per basic tier subscriber located in newly con - WHEREAS, the City structed units as of Jan - Council finds and deter. uary 1, 2010, mines that providing ca- d. Term of Fran ble service within the chise: From the effec- City is a vital public live date to April 11, service and is a matter 2011 with an option to of great public concern extend the initial term because cable providers for seven (7) years to use the public right of- April il 1, 2018. access: Three way. provide Public, Educational, and Gov- t the number option channels of channels els with ernmental ( "PEG ") ac- char within the tract u to five (5) PEG chan- chise area, and collect nets depending upon de- garsonafinformation re- mand. acinga subscribers ore- f. Letter of credit' sting r need to protect Seventeen dollars and the rights of sub- Iwenty five cents scribers; and. WHEREAS, non- ($17.25) per subscriber, exclusive e franc franchises for but not less than one use of the public right- hundred thousand dDl- of to ill promote cable tars .taws: Fran. services will Promote ll caws: Franchisee the public health, safe- shall comply with all and welfare pro- State, Federal laws and m mating permanence and regulations, terms and stability among those conditions of the fran- businesses wishing ce City agreement, and provide such service City Charter and Munici- and accountability to pal Code. the City for compliance Section 2: The City with current and future proposes to offer a non - state and federal. man- franchise to Cox which dates; and, WHEREAS, pursuant is presently licensed and permitted to conduct to Article of the City business in the City. Charter and pursuant to Newport Beach Mu Persons who, have an o pal Code section interest in or gqb)efran- 5.44.0ed the City is au- ch the y appear before these t to grant a fable chise mayouncil before shire to provide cable the City Council and be service with private ca- heard the data and ale service providers; time tito above. and, Section 9:This Res WHEREAS, CoxCom olution of Intention shall Incorporated ( "Cox ") be published in the has requested a non- City's official newspaper exclusive franchise to within fifteen (15) days provide cable service. of Its adoption and at NOW, THEREFORE, least ten (10) days prior the City Council of the to July 25, 2006. City of Newport Beach ADOPTED this 11th resolves as follows: day of July, 2006. Sactlon 1: A public hearing shall be con- Don Webb. MaXor ducted on July 25, 2006. ATTEST: at 7:00 p.m., or as soon LVonne Harkless. thereafter as practical, Oily Clerk in the City Council Published New Dort Chambers, 3300 New' Beach /Costa Mesa Gaily port Boulevard. Newport Pilot July 15, 2006 SD Beach. California, to - consider the granting of a franchise to Cox pur.i suant to the fallowing terns and conditions: - I��1JJ -�vab Q Cable Television The Next Season Newport Beach City Council Tuesday, July 25, 2006 • Adelphia (Time Warner) ■ City's negotiations with Adelphia/Time Warner resulted in the following on June 27, 2006: ■ A Consent to Transfer Agreement: . City consents to the transfer the Adelphia cable television franchise to Time Warner. • A Settlement & Mutual Release Agreement . Settles all past claims the City has against Adelphia and Time Warner, thus compensating the City $22,339.00. • A Memorandum of Understanding: • TERM: Binding on Time Warner through December 31, 2016; • FRANCHISE FEE = will maintain 5% fee; • Ongoing PEG Grant of $0.50 per subscriber per month (roughly $120,000 per year); • Initial PEG Grant of $28 /subscriber ($476,000 on a one -time basis); • Directs that the City and Time Warner negotiate a new Franchise Agreement by December 31, 2006. Cox Communications Proposed Franchise Agreement • TERM - to April 1, 2011 (Option to extend to April 1, 2018) • FRANCHISE FEE — 5 % • LOCAL OFFICE — within 20 miles • PEG SUPPORT: • Initial Capital Grant of $60 /subscriber (roughly $660,000); and • Additional Capital Grant of $30 /new subscriber over 2006's numbers in 2010; and • Capital Grants in lieu of ongoing PEG support • PEG CHANNELS — 3 immediately, up to 2 more if needed. ■ OTHER • Drops provided to City facilities in Cox service area. • Undergrounding required. • Subscriber Complaint Log kept. • Technical Service standards met. • Assurance that changes to State or Federal law will not impact Capital Grant or Franchise Fee payments for the duration of the Franchise Term. (4- 2- /W -200G CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. S16 July 11, 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 NO. 2006-_ EXPRESSING THE CITY'S INTENT TO ADOPT A FRANCHISE AGREEMENT WITH COX COMMUNICATIONS ISSUE: Should the City prepare to adopt a Franchise Agreement with Cox Communications? RECOMMENDATION: Adopt Resolution No. 2006 expressing the City's intent to adopt a Cable Communications Franchise Agreement with Cox Communications during a public hearing. DISCUSSION: The City Charter (Section 1301 - see below) directs us to notice and conduct a public hearing in advance of considering a new franchise. Because City staff intends to bring to Council a draft Cable Communications Franchise Agreement (and its related ordinance) with Cox Communications on July 250', the action proposed in this staff report meets the requirements of Section 3101 relating to a Resolution of Intention for the public hearing: Section 1301. Resolution of Intention: Notice and Public Hearing: Before granting any franchise, the City 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 City Council and be heard thereon. It shall direct the City Clerk to publish said resolution at least once; within fifteen days of the passage thereof, in the official newspaper. Said notice shall be published at least ten days prior to the date of hearing. At the time set for the hearing the City 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 Resolution of In Cable Franchise Agreement July 11, 2006 Page 2 intention to grant the same,, subject to the right of referendum of the people, or it may deny the same . if the City Council shall deteonine 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. 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 Kiff Assistant City Manager Attachments: Resolution 2006- Resolution of Int Cable Franchise Agreement July 11, 2006 Page 3 RESOLUTION NO. 2006- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO CONDUCT A PUBLIC HEARING TO CONSIDER THE GRANTING OF A NON - EXCLUSIVE CABLE SYSTEM FRANCHISE TO COXCOM INCORPORATED WHEREAS, the City Council finds and determines that providing cable service within the City is a vital public service and is a matter of great public concern because cable providers use the public right -of -way, provide Public, Educational, and Governmental ( "PEG ") access within the franchise area, and collect personal information regarding subscribers creating a need to protect the rights of subscribers; and, WHEREAS, non - exclusive franchises for use of the public right -of -way to provide cable services will promote the public health, safety, and welfare by promoting permanence and stability among those businesses wishing to provide such service and accountability to the City for compliance with current and future state and federal mandates; and, WHEREAS, pursuant to Article XIII of the City Charter and pursuant to Newport Beach Municipal Code section 5.44.030, the City is authorized to grant a franchise to provide cable service with private cable service providers; and, WHEREAS, CoxCom Incorporated ( "Cox ") has requested a non - exclusive franchise to provide cable service. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1 A public hearing shall be conducted on July 25, 2006, at 7:00 p.m., or as soon thereafter as practical, in the City Council Chambers, 3300 Newport Boulevard, Newport Beach, California, to consider the granting of a franchise to Cox pursuant to the following terns and conditions: a. Franchise effective date: The franchise will be effective upon approval of the City Council. b. Franchise fee: Five percent (5 %) of gross annual revenue. Resolution of In Cable Franchise Agreement July 11, 2006 Page 4 c. Grant. Sixty dollars ($60.00) per basic service tier subscriber of Cox in the City as of the effective date with an additional grant of thirty dollars ($30:00) per basic tier subscriber located in newly constructed units as of January 1, 2010. d. Term of Franchise: From the effective date to April 11, 2011 with an option to extend the initial term for seven (7) years to April 1, 2018. e. PEG access: Three (3) PEG channels with the option to increase the number of channels up to five (5) PEG channels depending upon demand. f. Letter of credit: Seventeen dollars and twenty five cents ($17.25) per subscriber, but not less than one hundred thousand dollars ($100,000.00). g. Laws: Franchisee shall comply with all State, Federal laws and regulations', terms and conditions of the franchise agreement, and City Charter and Municipal Code. Section 2: The City proposes to offer a non - exclusive cable service franchise to Cox which is presently licensed and permitted to conduct business in the City. Persons who have an interest in or objection to the proposed franchise may appear before the City Council and be heard on the date and time listed above. Section 3: This Resolution of Intention shall be published in the City's official newspaper within fifteen (15) days of its adoption and at least ten (10) days prior to July 25, 2006. ADOPTED this day of 200_ Don Webb, Mayor ATTEST: LaVonne Harkless, City Clerk a 0 E Agenda Item No. 3 June 27, 2006 (-N ) /�t3 k,)--I -6t- (0 a�W�RT CITY OF NEWPORT BEACH MEMORANDUM TO: Mayor Webb and Members of the City Council FROM: Dave Kiff, Assistant City Manager DATE: June 27, 2006 RE: Item #3 -- Franchise Agreement with Cox Communications lu, _ Please use this document as the proposed Franchise Agreement between Cox Communications and the City. The version in your staff report needs to be replaced with this version. I will be happy to outline the differences between the two on Tuesday — I don't believe them to be significant. Dave City Hail • 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768 . FRANCHISE TO PROVIDE CABLE TELEVISION SERVICES BETWEEN THE CITY OF NEWPORT BEACH, CALIFORNIA AND COX COM, INCORPORATED THIS AGREEMENT AND FRANCHISE (the "Franchise ") is made and entered into this day of 2006, by and between Cox Com, Incorporated, a Delaware corporation dba Cox Communications Orange County (hereinafter "Cox ") and the City of Newport Beach, California ( "City "). Authority. This Franchise has been granted and approved pursuant to the provisions of Title 5, Business Licenses and Regulations, Chapter 5.44, Cable Communications Franchise, of the Municipal Code of the City of Newport Beach ( "NBMC "). This Franchise is in the form of a nonexclusive franchise, contract and agreement. 2. Definitions. All terms used in this Franchise Agreement shall be as defined herein and in Title 5, Business Licenses and Regulations, Chapter 5.44; Cable Communications Franchise, of the NBMC. The provisions of the NBMC and the wordings, specifications, and requirements in this Franchise shall constitute the terns of a franchise as authorized in the NBMC in the form of an agreement to permit use of the public rights —of -way and to provide the cable television services by Cox. Words, terms, or phrases not defined in the NBMC or herein shall first have the meaning as defined in the Cable Act, and then the special meanings or connotations used in any industry, business, trade, or profession where they commonly carry such special meanings. If those special meanings are not common, they will have the standard definitions as set forth in commonly used and accepted dictionaries of the English language. 3. Scope of Franchise. A. Cox is authorized and obligated to construct, reconstruct, and operate the System within the public streets and rights -of -way. This authority includes the privilege to use Cox's cable television system in the Service Area, as defined in Section 14 below, (hereinafter the "System ") to provide Cable Service to customers in the Service Area located in all residential dwellings, commercial structures and industrial structures. B. This Franchise Agreement solely and exclusively creates, defines, and limits the legal rights and obligations between City and Cox and does not; in any way, obligate City to take any action, actions or refrain from taking any action; or actions, to or in relation to any third party. 2 L 0 Cox -CNB Franchise Agreement Page 2 4. Payments. Regular Percentage Franchise Fee. From and after the Effective Date, Cox shall pay a Franchise Fee, in quarterly installments, in a sum equal to five percent (5 %) of the Gross Annual Revenue. The Franchise Fee shall be paid to the City within forty -five (45) days after the close of the calendar quarter. In the event the Effective Date, as defined in Section 18 below, does not occur on the first day of a calendar quarter, then Cox shall pay the Franchise Fee for the fractional quarter based on a per diem basis within forty - fve (45) days after the close of the fractional calendar quarter. Cox expressly acknowledges and agrees that: A. Except for the payments expressly required by this Section 4, none of the payments or contributions made by, or the services, equipment, facilities, support, resources, or other activities required to be provided or performed by Cox pursuant to this Agreement are franchise fees chargeable against the compensable payments to be paid to City by Cox pursuant to this Section 4; and B. As applicable, except for the compensation - payments expressly required by this Section, each of the payments or contributions made by, or the services; equipment, facilities; support, resources; or other activities to be provided by Cox, are voluntary and are not "franchise fees" within the meaning of the Cable Act (47 U.S.C. §542.(g)(2)); and C. The compensation payments due from Cox to City pursuant to this Section shall take precedence over all other payments; contributions, services, equipment, facilities, support, resources, or other activities to be paid or supplied by Cox pursuant to this Franchise; and D. The compensation and other payments to be made pursuant to this Franchise Agreement 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 Cox or any Affiliated Person shall be required to pay to the City or to any state or federal agency or authority, all of which shall be separate and distinct obligations of Cox and Affiliated Persons; and E. Neither Cox nor any Affiliated Person shall have or make any claim for any deduction or other credit of all or any part of the amount of the compensation or other payments to be made pursuant to this Franchise 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 Cox or any Affiliated Person is required to pay to City or other governmental agency; and F. Neither Cox nor any Affiliated Person shall apply or seek to apply all or any part ' of the amount of the compensation or other payments to be made pursuant to this J • Cox -CNB Franchise Agreement Page 3 Franchise 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, each of which shall be deemed to be separate and distinct obligations of Cox and Affiliated Persons; and G. Neither Cox nor any Affiliated Person shall 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 any of the compensation or other payments to be made pursuant to this Franchise, each of which shall be deemed to be separate and distinct obligations of Cox and Affiliated Persons; and H. City acknowledges that, during the term of this Agreement, Cox may offer to its subscribers, at a discounted rate, a bundled or combined package of certain cable services that are subject to the franchise fee referenced above in Section 4, and other services that are not subject to that fee. With regard to such bundled or combined services, the following provisions are applicable: During the term of this Agreement, if Cox offers to individual subscribers cable services subject to the franchise fee that are bundled or combined with non -cable services that are not subject to the franchise fee, then the revenue from those bundled or combined services must be allocated on the basis of proportionality, as follows: The percentage that the price for all bundled services is discounted from the established retail rates for the individual services, as those rates are advertised by Cox in its marketing materials or published rate cards, will be prorated across all services in the bundled package; subject to the adjustment referenced below in Section 4(H)(2). Cox shall provide the City with the all requested information regarding the charge for each individual service for any bundled package within ten (10) days of the City requesting this information. 2. The revenue derived by Cox from services that are subject to mandatory tariff rates imposed by the California Public Utilities Commission, or any similar governmental rate- setting authority, will be deducted from the aggregate revenue to determine the revenue that is subject to the franchise fee. By way of example, Cox may offer a bundle of voice, video, and data services for a flat fee of $75, where the aggregate retail rate of those services when purchased on an individual basis would equal $100 if there is no service in that bundled package subject to a mandated tariff rate, Cox would apply a'25 percent discount to each individual service. Thus, if the established retail rate for video service was then $50, Cox would recognize revenue in the amount of $37.50 and would pay a franchise fee on that amount. ®Cox -CNB Franchise Agreement Page 4 3. Cox will not structure the pricing of any bundled or combined services so as to intentionally or unreasonably cause a reduction in the Gross Annual Revenue against which franchise the City may impose fees or other proportionately derived taxes surcharges; or fees. 4. If City reasonably determines that Cox has unlawfully, inequitably, or contrary to Section 4(H) allocated Gross Annual Revenue between video services and non -video services in calculating franchise fee payments, then the parties will meet upon advance notice from the City to discuss the allocation methodology. If the parties cannot resolve the dispute within a reasonable period of time, then the parties will submit the matter to a mutually agreeable third party for non - binding mediation. The parties will share the cost of the mediation equally. If the mediation is not successful, or if the parties cannot mutually agree upon a mediator, then either party may file an action in a court of competent jurisdiction or pursue any other remedies available under the law or this Agreement. If any franchise payment or recomputed amount is not made on or before the dates specified above in Section 4, Cox shall pay as additional compensation the greater of the following: An interest charge, computed from the applicable due date, at an annual rate equal to the prevailing commercial prime interest rate in effect upon the due date, plus three percent (3 %). 0 2. In addition to any late payment made pursuant to this section, if a payment is late by sixty (60) days or more, Cox shall pay a sum of money equal to five percent (5 %) of the amount due in order to defray reasonable additional documented and itemized expenses and costs incurred by City as a result of such delinquent payment. 3. No acceptance of any payment shall be construed as a release of; or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this Franchise, or for any other performance by Cox of an obligation hereunder. 4. Payments of compensation made by a Cox to the City pursuant to the provisions of this Franchise are in addition to, and exclusive of; any and all authorized taxes, business license fees, and other fees, levies, or assessments now in effect, or subsequently adopted in accordance with state and federal law. 5. Letter of Credit. A. Pursuant to Section 5.44.060(B)(1)(a) of the NBMC, within thirty (30) days of the Effective Date of this Franchise, Cox shall post an irrevocable standby Letter of Credit in the amount of ($17.25 per current subscriber but not less than One is • Cox-CNB Franchise Agreement Page S Hundred Thousand Dollars ($100,000). The Letter of Credit provider shall have, at a minimum; a credit rating of A issued by Moody's or Standard & Poor's. The letter of credit shall incorporate wording approved by City enabling City to draw such sums from time to time as the City may find necessary to satisfy any material default of Cox or to meet any payment due City under or in connection with the NBMC or this Franchise, upon ten (10) days' written notice to the Letter of Credit provider. The Letter of Credit shall provide in substance that, upon written notice by City of a material default or failure to make a payment due to City under or in connection with the NBMC or this Franchise, City may draw upon the Letter of Credit without any offset, contingencies or conditions of any kind. This Letter of Credit shall provide that it may not be revoked or amended without City's prior written approval. Cox shall obtain prior approval by the City of the wording of the Letter of Credit; the form of the Letter of Credit; and the Letter of Credit provider. Such approval shall not be unreasonably withheld. B. The Letter of Credit requirement may, in the unilateral discretion of the City, be increased by up to three times its original amount if there is an assignment, transfer, and /or change of control of the Franchise and/or the Cox. C. The Letter of Credit required by this Section satisfies the financial security requirements of this Franchise Agreement and is in lieu of a Security Fund or Faithful Performance Bond pursuant to Section 5.44.060(B)(1)(a) of the NBMC. 0 6. Insurance. Within ten (10) days of the Effective Date of this Franchise, Cox, at its sole cost and expense, for the full term of this contract (and any extension thereof), shall obtain and maintain at minimum all of the following insurance coverage: A. Types of insurance and Minimum Limits. The coverages required herein may be satisfied by any combination of specific liability and excess liability policies. I. Workers' Compensation and Employers Liability Insurance in conformance with the laws of the State of California (not required if Cox has no employees). 2. Cox's vehicles, including owned, non -owned (e.g., owned by Cox's employees and used in the course and scope of employment), leased or hired vehicles; shall each be covered with Automobile Liability insurance in the minimum amount of two million dollars ($2,000;000) combined single limit per accident for bodily injury and property damage. 3. Cox shall obtain and maintain comprehensive or commercial General Liability insurance coverage in the aggregate annual amount of two million five hundred thousand dollars ($2,500;000) combined single limit, including bodily injury, personal injury, and broad form property damage. Such insurance coverage shall include, without limitation: 1 ® • Cox -CN3 Franchise Agreement Page 6 a. Contractual liability coverage adequate to meet Cox's indemnification obligations under this Contract; and b. A cross - liability clause. C. Cox shall obtain and maintain Slander /Libel /Defamation Liability Insurance in the aggregate annual amount of one million dollars ($1,000,000). B. All required Automobile Liability insurance and Comprehensive or Commercial General Liability Insurance shall contain the following endorsement as a part of each policy: "The City of Newport Beach is hereby added as an additional insured as respects the operations of the named insured pursuant to cable television franchise as granted by the City and said insurance shall specifically cover the acts and omissions of Cox and the acts and omissions of its employees, agents and subcontractors in the performance of work hereunder." C. Within thirty (30) days from Effective Date of this Franchise, Cox shall furnish proof to City that a satisfactory insurance policy for all insurance required by this Franchise so that the City can ensure that the insurance is in place. The insurance policies for vehicles shall be in effect prior to usage and the City may, from time to time, reasonably increase the required amount of said insurance so long as said increased coverage is reasonably available at reasonable prices. D. The insurance required of Cox pursuant to this Franchise shall be primary and no insurance held by City shall be called upon to contribute to a loss under this coverage. E. All insurance policies shall provide that in the event of material change, reduction, or cancellation or non - renewal by the insurance carrier for any reason, not less than thirty (30) days written notice will be given to City by registered mail of such intent to cancel, materially change; reduce or not renew the coverage. An authorized agent of such insurance carrier shall provide to City, on such schedule as is requested by City, a certification that all insurance premiums have been paid and all coverages are in force. If for any reason Cox fails to obtain or keep any of such insurance in force, City may (but shall not be required to) obtain such insurance, in which event Cox shall promptly reimburse City its premium cost therefore plus interest at the City's portfolio rate until paid. F. All insurance shall be contracted through companies licensed to do business in California. G. Any deductible or self - insured retentions must be declared to and approved by City.. At the option of City; insurer shall reduce or eliminate such deductible or self - insured retention as respects City, its officials, officers, employees and I Cos -CAB Franchise Agreement Page 7 agents, or Cox shall procure a bond guaranteeing payment of losses and related investigations, claims; administration and defense expenses.. 7. Defense and Satisfaction of Claims. A. Cox shall; at the sole cost and expense of Cox, upon demand by City, defend City; its officers, boards, commissions or employees, in any and all suits, actions; or other legal proceedings, whether judicial, quasi judicial, administrative, or otherwise arising out of the negligent or willful acts or omissions of Cox, its employees, subcontractors and agents. Where Cox is required to provide legal services to City under this paragraph; and chooses to utilize joint counsel, the parties shall make a good faith effort to cooperate and agree upon litigation strategy and implementation thereof. In the event that Cox's litigation strategy or choice of legal counsel create a conflict of interest, or result in inadequate representation to protect the City's interests and separate: counsel is necessary for the representation of City, City may obtain separate legal counsel chosen by City at Cox's cost and expense provided, however, that if City obtains separate legal counsel as set forth above, Cox is only obligated to pay an hourly amount for legal services which does not exceed one hundred percent (100 %) of the highest hourly rate that City has paid for legal services within the twenty -four (24) month period prior to obtaining legal services as provided in this paragraph. City shall submit to Cox on a regular basis, statements for attorney's fees which shall be paid to City within sixty (60) days of Cox's receipt of said statement. B. Cox shall cause to be paid and satisfied any judgment, decree, or order rendered, made; or issued against Cox, City, its officers boards commissions, or employees; and hold City harmless therefrom, arising out of Cox's negligent or willful acts or omissions in connection with the construction, operation, maintenance, or other activities in relation to Cox's cable television system including, but not limited to, damages arising out of copyright infringement; defamation, personal and property liability; and antitrust liability, whether or not said damages are compensatory or punitive, provided, however, Cox shall not be required pursuant to this paragraph to hold City harmless for actions relating to programming decisions outside of Cox's control. Such indemnity shall exist and continue without reference to the amount of any bond; policy of insurance, deposit, undertaking, or other assurance; provided, however, City may not enter into any compromise or settlement which imposes any obligation on Cox without Cox's consent; which consent shall not be unreasonably withheld, and Cox shall not make or enter into any compromise or settlement of any claim, demand, causes of action, suit; or other proceedings which settlement involves anything other than the payment of money by Cox without contribution by City, without first obtaining the written consent of City, which consent shall not be unreasonably withheld. C. The indemnification provided pursuant to paragraphs 7(A) and 7(B) above shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in those paragraphs, regardless of F • ® Cox- CN3Franchise Agreement Page 8 whether or not City has prepared, supplied, or approved the plans and/or specifications for the operation or regardless of whether or not any insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 8. Liquidated. Damages and Other Remedies. A. Damages for Violation of Technical Standards, Customer Service Standards and Other Violations. In addition to, and without limiting the damages for delays as specified in Section 4 of this Franchise, City may impose any of the other liquidated damages described below for the violations and in the amounts described below: 1. Technical Standards violations. If more than ten percent (10 %) of the locations tested pursuant to FCC regulations fail to meet the FCC technical standards, City may impose liquidated damages in an amount equal to two hundred dollars ($200) per day, if Cox does not cure the violation in accordance with Section 8(B)(1) below. 2. Customer Service Violations. If Cox violates, in any material way, any of the customer service standards specified in the NBMC or this Franchise, City may impose liquidated damages in the amount of two hundred dollars ($200) per violation per day if Cox does not cure the violation in accordance with Section 8(B)(1) below. 3. Other Violations. For all violations and breaches specified in the Franchise or the NBMC, the City may impose liquidated damages in the amount of two hundred dollars ($200) per day if Cox does not cure the violation in accordance with Section 8(13)(1) below. 4. Reduction of Damages and Letter of Credit. If City does not impose any damages on Cox for delays in violation of technical standards, violation of customer service standards or for other violations in the four (4) year period which shall commence on the date which is sixty (60) days from the Effective Date of this ,Franchise, after such four (4) year period, the penalties contained in Sections 8(A)(1) and 8(A)(2) above shall be reduced to one hundred fifty dollars ($150) per day per violation, and the letter of credit contained in Section 5 above shall be reduced to seventy -five percent (75 %) of the original amount thereof; provided however, that the original, penalties and the original amount of to 0 Cox -CN6 Franchise Agreement Page 9 the letter of credit, as increased as allowed herein upon transfer, assignment or change of control, shall be immediately reinstated if (a) City imposes two (2) penalties on Cox in any twelve (12) month period, and /or (b) if Cox assigns; sells, leases or otherwise transfers this Franchise or control of the System. This entire paragraph shall immediately cease to have any force or effect if City imposes a penalty or penalties on Cox within the four. (4) year period which commences sixty (60) days from the Effective Date of this Franchise Agreement. B. Payment of Damages. 1. Cure. In the event that City has reason to believe that Cox has failed to comply with any material provision of this Franchise or the NBMC and therefore . desires to impose damages on Cox as stipulated above and /or in the NBMC, City shall notify Cox in writing of the provision or provisions which City believes may be in default as well as the applicable cure period. Cox shall, upon receipt of said Notice: a. Cure the alleged violation within the cure period provided by the NBMC, or if no cure period is provided, within five (5) working days of said notice. In the event that Cox does not correct said • violation within the applicable cure period, said liquidated damages may be imposed from the date of original violation; or b. Respond to City in writing during the cure period contesting City's assertion of violation and providing such information or documentation as may be necessary to support Cox's position and /or request an extension of the cure period. The decision to extend the cure period shall be within the sole discretion of the City. 2. Appeal and Payment. In the event Cox fails to respond to said notice of violation, or to cure the violation within the applicable cure period, or provide an explanation for failure to cure acceptable to City, City or its designee shall schedule a hearing no sooner than ten (10) days after written notice to Cox of the expiration of the cure period and the scheduling of said hearing. Cox shall be provided an opportunity to be heard at such hearing, including the right to present evidence, cross- examine witnesses, and be represented by counsel. Within thirty (30) days after said hearing, City shall determine whether or not Cox is in violation and submit written findings of facts supporting such determination. The hearing described above may be conducted, at City's selection, either before the City Council or before an administrative officer or commission selected by the City Council. In the C. • Cox -CNB Franchise Agreement Page 10 event that said hearing is not held before the City Council, Cox shall possess the right to appeal said determination to the City Council within ten (10) days of issuance of the statement of decision and findings of fact. The City Council shall decide said appeal pursuant to a hearing at which Cox has an opportunity to be heard and the right to present evidence, examine witnesses and be represented by Counsel. Cox shall have the right to appeal the City Council's decision to a court of competent jurisdiction within ninety (90) days of any final decision by the City Council. in the event a court orders repayment of said liquidated damages from City to Cox, interest on such amounts shall be included at the rate paid by the Local Agency Investment Fund to the City for City Investments. City's All liquidated damages shall be due and owing thirty (30) days after the final decision by either the City Council or the hearing officer in the event of no appeal to the City Council. The aforesaid assessment may be levied directly against the letter of credit and collected by City thirty (30) days' from date said damages are due and owing. Such assessment shall not constitute a waiver by City of any other right or remedy it may have under the Franchise or under applicable law including without limitation, its right to recover from Cox such additional damages, losses, costs and expenses, including reasonable attorneys' fees, as may have been suffered or incurred by City by reason of or arising out of such breach of the Franchise. Nothing in this paragraph is intended to waive, modify or otherwise affect Cox's rights under the NBMC, this Franchise, • or any applicable law, except for the specific procedures expressly provided herein, including without limitation the right to judicial review of the legal rights and obligations of the parties with respect to each other, Cox's right to challenge the decision of City under applicable legal standards, and any issue of performance or breach by either party to this Franchise. Validity of Liquidated Damages. The parties acknowledge that it would be impractical or extremely difficult to fix actual damages in the case of Cox's default, and that the amount of damages specified above is a reasonable and complete estimate of City's damages. Cox recognizes that Cox's prompt development and offering of cable television service for which penalties can be imposed is of critical importance to City. City: Cox: (initials) (initials) 0 v�, 0 D. Sole Financial Remedy. • Cox-CNB Franchise Agreement Page 11 No financial penalties will be applied pursuant to Ordinance or other similar document for the same offenses to which the liquidated damages apply. 9. Cox Support for Development of Technology and Programming. Cox shall provide the following support for the purpose of technology development and implementing non- commercial public, benefit uses of the Cable System. The provision of the support items listed herein shall be considered as binding commitments of Cox within the terms of this Franchise, and if not provided, shall subject Cox to applicable remedies and penalties for violations of the Franchise. Cox shall provide the following support: A. Channel Capacity Requirements. Cox Support for Public, Educational or Government Access "PEG Access" 1. Cox shall designate three (3) channels for the exclusive use of the City ( "PEG channels "). The PEG channels shall be under the exclusive management and editorial control of the City and shall not be shared with other cities. The City may designate -a representative, such as a non- profit entity, to use and administer to said channels, with all of the attendant rights and obligations provided to the City hereunder. In the event Cox is required by federal law, regulations, or otherwise to change the channel number of a PEG channel, Cox shall provide thirty (30) days advance notice to the City and its customers. Should Cox desire to change the channel number of a PEG channel that is in use by a PEG user within the criteria set forth in Section 9(A)(2)for any other reason, Cox shall provide the City with the reason for change at least ninety (90) days prior to the proposed change; advertise the change to customers on its website, in at least three (3) bill messages prior to the change, and in a television spot announcement that Cox shall carry on its system for at least six weeks prior to the change. Cox shall also reimburse the City for its actual costs for reprinting any materials such as program guides or other promotional materials occasioned by the change in an amount not to exceed $7,500.00 for its costs of remarketing the channel. 2. Cox shall make available additional PEG channels designated for use exclusively by the City pursuant to the following criteria: a. The initial governmental channels must be in use and programmed with non- commercial PEG programming, of which no more than ten (10) hours can be character generated programming, during at • least 80 % of the weekdays for at least 80% of the time during any consecutive 6 -hour period for ten (10) consecutive weeks. 0 • Cox -CNB Franchise Agreement Page 12 b. The initial public and educational channel must be in use and programmed with non - commercial and at least 50% locally produced programming, of which no more than ten (10) hours per week can be character- generated programming during at least 80% of the weekdays for at least 80% of the time during any consecutive 6 -hour period for ten (10) consecutive weeks. C. No more than 33 -1/3% of the aggregate hours utilized for PEG programming during such ten week period can represent repeat programming. d. Any additional PEG channel shall be made available within 180 days following the City's written request and verification of compliance with each of the foregoing conditions. e. Whenever such additional PEG channels but not the original three PEG channels, are programmed for less than ten (10) hours per day for six (6) days per week for a continuous period of not less than twelve (12) consecutive weeks, the City may permit Cox to utilize unused channel capacity on that channel under the following conditions: (i) Any request from Cox to use any fallow capacity designated for PEG Access must be submitted in writing to the City. (ii) The City shall approve the request from Cox to use fallow channel capacity if it finds that: (i) the utilization of the channel is as represented; (ii) Cox has not acted in violation of any of the provisions of the Franchise regarding utilization of the channel; and (iii) there are no special circumstances which would, justify the denial or delay of implementation of the use of the channel. After approval, Cox may continue to utilize the channel for any other purposes it so chooses, consistent with the Franchise, until it is required to be designated for PEG purposes pursuant to the provisions hereof. (iii) Unless Cox receives written notice within one hundred and twenty (120) days that the City disapproves Cox's request, the City's approval shall be deemed granted. f. The maximum number of access channels which may be required under this Franchise shall be five (5), subject to the City's right to exchange channels; as set forth herein. On six months notice to Cox, City may exchange each analog PEG channel for four (4) 4 • Cox -CNB Franchise Agreement Page 13 • digitally compressed channels upon satisfaction of the following conditions: (i) Cox provides digitally compressed channels which offer at least as many services as are available by analog channels on the system; and (ii) Digital decompression terminal devices are installed in the homes of a least 50 % of Cox's subscribers, and are used to receive Cox's services; and (iii) City provides six (6) months notice to Cox. (iv) City provides written waiver of any state or federal laws pertaining to requirements for the placement of such channels. As used in this section, a "digitally compressed channel shall mean a data stream capable of delivering video programming on a basis comparable to the delivery of other digitally compressed video programming. 3. The City shall have sole responsibility for the administration and programming of the Governmental channel(s) provided by Cox, including without limitation, the carriage of programming on the channel(s) to include trafficking of tapes and playback and the establishment and administration of all rules, regulations and procedures pertaining to the use and scheduling of the programming presented over the channel(s). The channel(s) shall be used for noncommercial, public, governmental or educational programming. In relation to the public access channel(s), Cox shall continue its current practices of providing studio facilities, equipment, trafficking of tapes, playback, for public access users in a quality and quantity generally consistent with that provided over the past franchise term. 4. City and Company acknowledge that there are certain logistic and technical issues that remain unresolved as of the Effective Date due to the fact that two separate cable companies provide cable service in the City of Newport Beach and the City Hall main operation for PEG Channel(s) resides in the cable service area of another cable service provider. Company agrees to work in good faith to resolve any logistic and technical issues to ensure seamless quality and continuity of PEG channel(s) access by the City's citizens including but not limited to O Allowing physical playout equipment and signal to remain at Company's Rancho Santa Margarita facility or arranging for transfer of decks and racks in the City Hall area at a mutually agreeable location; 6 rCox -.CN6 Franchise Agreement Page 14 (ii) Ensuring that signal transmission/reception mutual exchange across cable service boundaries is accomplished; and (iii) Ensuring continuation of transmission/reception across the two cable system. B. A Grant in the amount of sixty dollars ($60.00) per Basic Service Tier subscriber ( "BST ") of Cox in the City as of the Effective Date ( "Threshold Subscribers ") shall be paid by Cox to be utilized for any capital or non- capital purposes (the "Initial Grant "). Said Initial Grant shall be paid by Cox within thirty (30) days of the Effective Date of this Agreement. C. On January 1, 2010, the City shall provide Cox with a list of newly constructed residential units which have been constructed in the City subsequent to the Effective Date, if any, (the "Construction List "). Within thirty (30) days of receipt of the Construction List, Cox shall determine and report in writing to the City the number of newly constructed units which are BST Subscribers as of that date (the "New Construction Subscriber List')., Cox shall also report to the City the number of BST Subscribers contained in the City other than those subscribers set forth on the New Construction Subscriber List (the "Continuing Subscribers "). Within ten (10) days thereafter, Cox shall pay to the City an additional grant (the "Additional Grant') equal to the number of New Construction Subscribers, less the difference between Threshold Subscribers and Continuing Subscribers times $30.00 per subscriber. D. City and Cox agree that said Initial Grant and Additional Grant are neither franchise fees nor offsettable against franchise fees, irrespective of how they are expended, for the purposes of the Cable Act. City shall waive normal permit fees, but not inspection fees, for residential dwelling units, constructed subsequent to the Effective Date in new subdivisions where Cox installs its cable television plant in otherwise open trenches along with other utilities at the time of new subdivision construction. Other than the waiver of normal permit fees as provided above, Cox will comply with all other City requirements. E. In the event any dedication to PEG Programming required by this Franchise is deemed by a legislative body, administrative body, or court of competent jurisdiction to constitute a payment which must or may be offset against the franchise fee, City hereby reserves the right, but is not required to do so, to terminate said program and/or requirement so as to provide the maximum allowable franchise fee. Cox shall not offset any charge, of any kind, against a franchise fee or other payment due City without prior written consent of City. Nothing in this Franchise is intended, and shall be so construed, to confer any third party beneficiary rights on any party(s), and no rights are created by this Agreement other than rights in City and Cox. \l.9 • Cox-CAT Franchise Agreenvent Page 15 10. Governmental and hrstitutional Drop Policy; Provision of Live Local Insertion Locations. A. Drops to City Facilities. Within one hundred eighty (180) days of written notice provided by the City; Cox shall provide, without charge, up to four (4) cable drops, as determined by City, for all levels and all tiers of Cable Service per building, excluding premiums and pay -per -view; a cable modem drop; and cable modem service (residential speed of up to 3 mbs) per drop for those buildings, institutions and facilities on Exhibit "A ", plus those buildings, institutions and facilities which are constructed subsequent to the Effective Date of this Franchise Agreement, as designated by City in writing. Except for a City Hall which shall be served irrespective of distance if it is located in the Service Area, existing or future, which Cox shall construct at its sole expense, drops to all buildings institutions and facilities which are constructed subsequent to the Effective Date of this Franchise Agreement shall be limited to 250 feet from the closest point to Cox's distribution system. In the event that requested drops exceed said distance, Cox shall determine the incremental cost beyond said distance and the City shall pay such incremental costs to Cox upon completion of construction. Cox shall not impose programming or other charges for any additional outlets within said buildings. Installation and maintenance of interior wiring of said building(s) beyond the four (4) drops per building shall be the responsibility of the building owner, provided that if Cox is requested to install such wiring, it will do so within a reasonable time at its actual cost of labor and materials. B. Live Insertion Locations. Within one hundred eighty (180) days of written notice provided by the City, Cox shall provide live insertion points at the locations set forth on Exhibit "B" by way of fiber connection so that the City can insert and transmit audio, video, and digital programming from said site to Cox's headend for retransmission over one or more of the PEG Channels specified in Section 9(A) (collectively, the "Return Feeds"). The Return Feeds shall be constructed pursuant to technical standards mutually agreed upon by Cox and the City (the "Design Specifications "). The City shall possess no obligation to insert programming upon the Governmental Channel pursuant to Section 9(A)(3) until such time as the Return Feeds are constructed and activated pursuant to the Design Specifications. Within one hundred and twenty (120) days of the completion and activation of the Return Feed, any playback of local government programming or insertion of audio, data or other information on the Government Access channel shall be the sole responsibility of the City. 11. Services and Broad Categories of Video Programming. Cox should provide, at a minimum, the following broad categories of services and video programming: local broadcast, public affairs, satellite services, news, sports, cultural, foreign language programming, general entertainment, and children's. If any listed broad n • Cox -CNB Franchise Agreement Page 16 category of service or video programming shall become unavailable, or is commercially, impractical, or cannot be provided under existing FCC regulations, Cox should provide substitute programming of the same category if reasonably available. City may request Cox to cooperate with City in developing and distributing a printed PEG channel guide at City's cost. Said printed guide shall be of a reasonable weight and size and could include; but is not limited to, a printed guide distributed through the bills, via direct mail, or included in local newspaper or Cox's printed guide, all at City's cost, if any, but shall not include advertising. If City requests Cox to distribute a printed guide through the bills, Cox shall comply so long as City produces said guide at its own cost for production and insertion and provides Cox sufficient advance notice and there is room for said guide in Cox's billing envelopes, and said guide does not take the place of other inserts desired by Cox. City shall have complete responsibility for the content of any information included in said guide: The payments by City referred to in this Section shall be limited to reimbursing Cox's actual incremental cost of providing and distributing the guide. 12. Minimum System Design and Capacity Requirements. A. Channel Capacity. The cable television system shall be constructed with hybrid fiber coax ( "HFC ") architecture and engineered to deliver signals at forward frequencies up to and including a minimum bandwidth of seven hundred and fifty (750) megahertz (MHz) on the Residential Network. The System will be engineered to allow simultaneous downstream delivery of no less than one hundred ten (110) analog video channels and shall be constructed pursuant to the specifications and routing described herein. B. Interactive Capacity and Services. The cable television system shall be two -way activated in all of the distribution plant. C. Minimum Design Criteria. In addition to the requirements of Section 12(A) -(B) above, minimum system construction requirements shall be as follows: Cox shall at all times maintain equipment capable of providing standby power for the entirety of the cable system for a minimum of two hours. 2. Emergency Override System. a. Cox shall provide, install, activate, and maintain an emergency override system which includes audio override on all analog channels of Cox's system and character generated message capabilities on a designated channel, receivable only within the City. City shall be able to activate, provide audio programming, and terminate such emergency audio override via dial -up or t$ ® • Cox -CN6 Franchise Agreement Page 17 dedicated telephone control upon system upgrade. City shall use the audio override and character generated system only in emergency situations, as declared by the City Council or the City Manager when there is threat to the public welfare, health or safety. b. In addition to subsection (a) above, and in accordance with the provisions of FCC Rules and Regulations Part 11, Subpart D, Section 11.5(h)(1), and as such provisions may from time to time he amended, Cox shall install and maintain an Emergency Alert System (EAS). As allowed by FCC Order FCC 97 -338, Paragraph 33, Cox shall transmit all national, state, and local activations of the Federal EAS, utilizing the four -part message protocol specified in FCC Rules and Regulations Part 11, Subpart B, or successor protocols.. This shall include such local and state -wide situations as may be designated to be an emergency by the Local Primary (LP), the State Primary (SP) and /or other authorities identified and defined within FCC Rules and Regulations, Part 11 or the Local and State Plans provided for under those rules. 3. Cox shall provide subscribers, upon request, with a parental control locking device or digital code or other means that permits inhibiting the viewing of parental designated channels. 4. All new underground trunk and distribution cables shall be in conduit. 5. Minimum Technical Standards for Forward (Downstream) and Reverse (Upstream) Directions. The minimum technical standards shall be those adopted by the FCC from time to time. To the extent that no FCC standards exist, the standards shall be those FCC technical standards in effect on the Effective Date, or, if none, those established by City. 13. Universal Service. Cox shall design, construct and maintain the cable television system in such a manner as to pass by every existing single or multiple- family dwelling unit in the City and shall make the system available on an identical basis to all single or multiple family dwelling units constructed during the term of this Franchise. For new construction in residential, and industrial areas, Cox shall make the system available at the, same time as. the units, residential, or otherwise, are constructed. Nothing herein shall preclude Cox from providing service to multi- family dwellings and other residential developments on a discounted bulk - billing basis. 14. System Extension Policies. Description of Service.Area(s). �c� • • Cox -CNB Franchise Agreement Page 18 A. The service area shall constitute that portion of the City set forth on Exhibit "C" (the "Service Area"). B. All subscribers, residential, or otherwise, within one hundred twenty -five (125) feet from the closest public right -of -way or easement, shall be provided service for the standard installation fee. Subscribers located beyond one hundred twenty - five (125) feet from the closest public right -of -way or easement will be connected upon the payment of Cox's time and materials for that portion of the installation which exceeds one hundred twenty -five (125) feet. 15. Provision of Service. Unless the subscriber requests otherwise, Cox shall deliver initial service within seven (7) business days after receipt of a subscriber order so long as the subscriber is within the existing Service Area. Service additions or deletions shall be made within twenty -four (24) hours of a subscriber request, unless additional terminal equipment is required, in which case Cox shall make such service change within seven (7) calendar days. Cox shall provide all subscribers, prior to the initiation of cable service and thereafter, with the ability to subscribe to only Basic Service. 16. Technical Standards Testing. A. Cox's cable television system shall be periodically tested by Cox, at Cox's sole expense; at the times, and pursuant to the procedures, described in the then applicable rules and regulations of the FCC or, if no such rules and regulations exist, in the manner prescribed in rules and regulations in effect on the Effective Date. B. Reimbursement of City Expenses. City shall bear all costs associated with its attendance; either directly or through an independent consultant, in the initial testing but not retesting procedure described herein except as provided below: 1. Upon written request by the City and based on a pattern of customer complaints to the City regarding system performance, Cox shall measure . and report to City the number of service complaints; which related to customer dissatisfaction with the quality of the picture excluding partial or tonal system outages. The number of said complaints over a twelve (12) month period shall be divided by twelve (12) and constitute the "base year average monthly subscriber complaints" for the purposes of this paragraph. 2,. At the conclusion of said twelve (12) month period, Cox shall calculate and report to City monthly the number of subscriber complaints relating to the quality of the picture ( "Monthly Subscriber Complaints "). Said information shall be provided to City within fifteen (15) working days of the last day of each calendar month. 0 'ID ® Cox -CNB Franchise Agreement' Page 19 3. So long as Monthly Subscriber Complaints, as defined herein, remain within twenty percent (20 %) of the base year average monthly subscriber complaints, as defined herein, City shall bear all costs relating to its participation in the technical standards testing process defined herein. However, if, for any given two (2) consecutive months or any three (3) nonconsecutive months in any six (6) month period, said Monthly Subscriber Complaints increase more than twenty percent (20 %) over the base year average Monthly Subscriber Complaints, Cox shall reimburse City for City's actual and reasonable cost of supervising and/or participating in the technical standards testing for a three (3) quarter period commencing upon the occurrence of the contingency(ies) provided herein if the unsupervised periodic testing, as defined herein, indicates that Cox's system during said period is operating in conformance with the technical performance standards provided by Section 12 hereof; Cox shall reimburse City for any and all costs incurred by it in monitoring Cox's technical standards testing for twelve (12) months subsequent to a determination by City that liquidated damages pursuant in Section 10(3)(1) may be imposed. 4. Subscriber Complaint Log. Cox shall maintain a written or computerized record of subscriber complaints, including: loss of signal requiring a field visit, non- receipt of programming or services ordered, billing disputes, missed appointments, unsatisfactory performance of maintenance, malfunctioning signal traps on blocked channels, and unresolved or chronic technical problems. Said record shall indicate: a. Date and time of Subscriber complaints; b. Street name of complainant; C. Nature of complaint; d. Cox's action(s) to resolve complaint; and e. Date(s) and time(s) actions(s) taken. Said record shall be kept at Cox's local office for a period of two (2) years. A copy of said Subscriber complaint record shall be submitted by Cox to City within ten (10) working days following receipt of a written request by City. 5. To the extent that Cox maintains and provides Subscriber complaint information consistent with the above requirements, it shall be deemed to have maintained and provided sufficient Subscriber complaint information as required by this paragraph. ® • Cox -CN3 Franchise Agreement Page 20 17. Equipment in Rights of Way. 0 A. Design and construction requirements, permit and other fees, public and customers notifications, requirements for public communication; and other oversight requirements by City imposed on Cox shall be consistent to the extent legally permissible and technically feasible, with those requirements imposed upon other users of the public rights -of -way and easements within the City. B. The Cable System shall be constructed or installed in the City only after the express written approval of the City and only at such locations and in such manner, design, and size as shall be approved by the City. In granting such approvals, the City shall exercise reasonable discretion in accordance with applicable law. Upon Cox's written request, City staff shall meet and confer with Cox in order to develop a process for expediting City processing and approval of proposed Cable System installation of multiple "like-kind" facilities. C. The Cable System shall be placed underground or where all other utilities are located in all areas which are subject to the provisions of the NBMC unless otherwise approved by the City Engineer. Such approval shall not unreasonably be withheld. D. All construction or maintenance work shall be conducted in a good and workmanlike manner consistent with industry standards. Installation of new facilities shall occur, whenever practical, concurrent with the installation of subdivision public improvements. E. Upon its receipt of reasonable advance notice; not to be less than five (5) business days, Cox shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of Cox when lawfully required by City by reason of'trafflc conditions, public safety, street abandorunent, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes; or any other type of strictures or improvements by the Franchising Authority; but; the Cox shall in all cases have the right of abandonment of its property. 18. Franchise Term. The term of this franchise shall commence upon its approval by the City Council (the "Effective Date"), and shall expire on April 1, 2011. At Cox's written election :filed with the City no later than January 1, 2010, Cox may extend the Initial Term by seven (7) additional years so that the Franchise will expire on April 1, 2018. 19. Most Favored Nations Review. A. At any time and at City's request, Cox shall provide information on any Cable Services not being provided in the City which are being provided on an operational basis in systems operated by Cox, or any affiliate thereof in the States of California, Arizona and Nevada (the "Comparison Systems"). For purposes of ® Cox -CNB Franchise Agreement Page 21 this section, "operational basis" means that Cox has offered a Cable Service to all Subscribers in the Comparison Systems for at least six (6) months, but does not include Cable Services that are offered on a trial or test basis to a limited number of subscribers. B. If Cox is providing Cable Services on an operational basis in any Comparison Systems, City may require Cox, and Cox shall comply, to provide said Cable Service(s) within one (1) year of the City's written request, and to upgrade its Cable System, if necessary, to provide said Cable Service. Further, City shall reasonably consider not requiring such service based upon information supplied by Cox but, after considering said information, may still require the provision of these Cable Services. C. After the Effective Date of the Franchise, if Cox, or any affiliate, parent, or subsidiary thereof, enters into any renewal, franchise extension, of a franchise or a new franchise to provide cable television service to any city located within Orange County or the County of Orange itself, within thirty (30) days thereof, Cox shall provide to the City a copy of the Other Franchise. D. In the event that the City concludes that the Other Franchise contains terms, conditions or provisions regarding Public, Educational or Government access (the "PEG Access Provision "), including, without limitation, the financial support thereof) or Cable System Technology (i.e., chamiel capacity, services offered, etc.) (hereinafter the "Technology Provision"), as originally contained therein or as modified that are more favorable than those contained in the Franchise, when considering the Franchise and its requirements as a whole,, then the City may, at its sole discretion, require Cox to provide the more favorable PEG Access Provision and the more favorable Technology Provision; or either of them; provided, however, (1) the City must notify Cox in writing of its election to require Cox to provide the more favorable provision within one hundred eighty (180) days of the City's receipt of the Other Franchise or the City shall be deemed to have irrevocably declined to impose such requirement; and (2) any requirement imposed pursuant to this paragraph of the Franchise to incorporate the more favorable PEG Access Provision and the Technology Provision, or either of them, shall also include; upon Cox's identification and request, the imposition of any and all other terms or conditions in the Other Franchise which are more favorable to Cox than those contained in the Franchise when considering the Franchise and its requirements as awhole, (by way of example, if the Other Franchise contains a franchise fee less than the franchise fee in the Franchise or has a term longer than the terns of the Franchise, then the Franchise shall be modified to include such more favorable terms to the City at the same time that the Franchise is modified to include the more favorable PEG Access Provision or the more favorable Technology Provision). E. Cox shall provide the same Cable Services to customers in the City as it provides to customers in communities served off the same headend as of the date • of this Agreement. In the event Cox deploys new or different Cable Services as a result Cox -CNB Franchise Agreemeni Page 22 of a Cable System upgrade in one or more of the communities served off the same headend as of the date of this Agreement, then Cox shall deploy those new or different services within 24 months to customers in the City provided however Cox may request an extension for good cause and the City may or may not in its discretion consent to the extension. 20. Construction Responsibility. Cox shall be responsible for the acts and omissions of its contractors, subcontractors and employees. Only authorized employees and /or agents of Cox shall apply for and be issued all necessary permits and building authorizations. Cox shall designate to City a construction manager who is an employee of Cox to be contacted regarding all cable construction issues. 21. Compliance with Construction Standards. Cox shall not construct any portion of its cable television system in City streets and rights -of -way without obtaining all necessary City building permits and paying in addition to, the franchise fee, all then applicable fees to the extent legally and practically feasible to be required of all users of the public rights-of-way and public utility easements and shall only construct said system in accordance with City standards for methods of construction in public rights -of -way. 22. Compliance with all Laws and City Orders and the NBMC. A. Cox shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Cox shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements. B. Cox shall promptly comply with all lawful City orders, resolutions and the NBMC related to Cox's operation of the System, including all lawful rate orders. Failure to so comply shall be considered a breach of this Franchise and shall subject Cox to (1) all liquidated damages contained in this Franchise and the NBMC, and (2) all other actions, remedies and penalties available to City as a result of such. failure to comply. 23. City may require, at its option, that perfonnance audits of the System be conducted every two (2) years by an independent technical consultant selected and employed by City at its sole expense to verify that the System complies with all technical standards and other specifications of the Franchise. 24. Franchise Construction. This Franchise shall be construed according to the internal laws of the State of California and all federal laws of the United States. Any action brought relating thereto must be brought exclusively in the state or federal courts located in Orange County, California. 'l�f • 0 25.. Notices. 0 Cox -CNB Franchise Agreement Page 23 Any notice required to be given by this Agreement shall be presumed given five (5) days after deposit in the United States mail, properly addressed by certified mail and return receipt requested, as follows: To City: City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 With a COPY to: City Attorney City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 To Cox: Cox Com, Inc. Cox Communications Orange County 29947 Avenida de las Banderas Rancho Santa Margarita, CA 92688 Attn: Vice President, Government Affairs With a COPY to: Cox Com, Inc. Attn: Director, Government Affairs 1400 Lake Heam Drive Atlanta, GA 30319 26. Pass- Through of Expenses. Cox will not separate out, line itemize, or surcharge the cost of the Initial Grants and the Additional Grants described in Section 9 or any other cost related to this Agreement (except the franchise fee) as a line item on City customer's cable bills. Additionally; Cox shall not impose rates and charges on subscribers which are higher for like -kind services or of packages of services than those imposed upon subscribers in any of the cities of Mission Viejo, Laguna Hills, Tustin, Rancho Santa Margarita, and Aliso Viejo, 27. Possessory Interest. By accepting this Franchise, Cox acknowledges that notice is and was hereby given to Cox pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property pursuant to the authorization herein set forth may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Cox shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against Cox's right to possession, occupancy or use of any public property pursuant to any right of possession, occupancy or use created by this Franchise. Cox shall not be barred from challenging such try on any amounts assessed pursuant thereto. ;6 • Cox -CNU Franchise Agreenvent Page 24 28. Rates. City may, without amendment of this Franchise, regulate Cox's rates, charges, and prices to the maximum extent permitted by law. 29. Force Majeure. In the event Cox's performance of any of the terms, conditions, obligations or requirements of this Franchise is prevented or impaired due to any cause beyond its reasonable control and not reasonably foreseeable, such inability to perform shall be deemed to be excused, and no penalties or sanctions shall be imposed as a result thereof. Such causes beyond Cox's reasonable control and not reasonably foreseeable shall include, but not be limited to, any acts of God, civil emergencies, labor unrest, strikes, inability to obtain access to an individual's property and any inability of Cox to secureall necessary permissions or permits to utilize necessary poles or conduits so long as Cox utilizes due diligence to timely obtain said permissions or permits. 30. Meet and Confer. Prior to exercising any rights of audit or inspection upon Cox pursuant to Section 5.44.130 of the NBMC, City and Cox shall reasonably attempt to meet and confer to achieve voluntary compliance. 31. Interpretation. 0 The terms of this Franchise shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Franchise or any other rule of construction which might otherwise apply. In recognition of the obligations stated in this Agreement, the parties have executed this Agreement on the date indicated above. ATTEST: COX COM, INC. LaVonne Harkless, City Clerk Its: APPROVED AS TO FORM: CITY OF NEWPORT BRACH William M. Marticorena, Special Counsel Its: 11 • EXHIBIT A • Cox -CNB Franchise Agreement Page 25 Drops to City Public Buildings, Institutions and Facilities t. Central Library — 1000 Avocado Avenue 2. Police Department — 870 Santa Barbara Drive 3. Fire Station 3 — 868 Santa Barbara Drive 4. Fire Station 5 /Corona del Mar Library -410 & 420 Marigold Avenue 5. Fire Station 8 — 6502 Ridge Park Road 6. Big Canyon Reservoir -3300 Pacific View Drive 7. Oasis Senior Center -800 Marguerite Avenue 8. Grant Howald Park/Community Youth Center - 3000 Fifth Avenue 9. Newport Coast Community Center — NPCoast Drive& San Joaquin Rd 10. Between the Police Facility and Newport Coast Fire Station IL Andersen Elementary — 1900 Port Seaboume Way E 0 EXHIBIT B Live Local Insertion Locations I. Police Department Emergency Operations Center 2. Central Library Friends Meeting Room 3. Oasis Senior Center Community Meeting Room 4. Newport Coast Community Center Meeting. Room ® Cox -CNB Franchise Agreement Page 26 0 E y�• 1 I• JlI u • Cox -CN6 Franchise Agreement Page 27 EXHIBIT C Cox Service Area Cable TV Franchise Areas! 1 f 1 K N t y` A f �1. A 4 1 J 2 ) t 1 1 i)'_•1 V t/ � � � C >... E' r '�IA • • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 3 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: ORDINANCE 2006- ADOPTING A FRANCHISE AGREEMENT WITH COX COMMUNICATIONS . ISSUE: Should the City enact an ordinance that adopts a new Franchise Agreement with Cox Communications? RECOMMENDATION: 1. Introduce Ordinance No. 2006- relating to the adoption of a Cable Communications Franchise Agreement with Cox Communications; 2. Pass to second reading on July 11, 2006. DISCUSSION: As far back as 1966, the City of Newport Beach has had a Cable TV Ordinance and separate "franchise agreements" with two cable providers. Today, those providers are Cox Communications and Adelphia (see service areas on map below). The agreements have been extended several times: ADELPHIA FRANCHISE AGREEMENT • Agreement adopted December 1966 -15 -year term (to 1981). • Amended December 1970'- term reset again to 15 years (to 1986). • Amended April 1986 - term extended by five years (to 1991) • Amended October 1991 -term extended to January 27, 2002. • Amended December 11, 2001 -- term extended to January 27, 2003. • Amended January 27, 2003 -- term extended to January 27, 2004 (now on holdover status) COX FRANCHISE AGREEMENT • Agreement adopted December 1966 -15 -year term (to 1981). ® Cox Communictons Franchise and Ordinance June 27, 2006 Page 2 Amended November 1981 -term extended for 10 years (to 1991). Amended October 1991 -term extended to January 27, 2002 Amended December 11, 2001 — term extended to January 27, 2001 Amended January 27, 2003 --term extended to January 27, 2004 (now on holdover status). Cable F: able TV Fran hlse Aieax, /: ` , `•,.•f �y Cay of Nax j... L lie. h - - -- \ � � / P � ) CnFle Cony+any1 PdelpMa ms`s i !e // Fly,'^ i/� ri 1 S' y 1' 4, WAe 11' Mae� M If of homes passed in Franchise Area 31,123 13,900 45,023 # of cable N subscribers 16,978 10,1100 27,078 % of homes passed that subscribe to 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 $ 1,101,533 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 4'04) $: 411,480 $ 402,014 $ 81$,494 0 Cox CommunlL"btions Franchise and Ordinance June 27, 2006 Page 3 In May of 2004, the City adopted a new Cable Communications Franchises Ordinance (Chapter 5.44 of the NBMC). Since that time, the staff team (Bill Marticorena of Rutan and Tucker, Assistant City Attorney Aaron Harp (as well as City Attorney Robin Clauson), Assistant City Manager Dave Kiff, and PIO Marilee Jackson) has worked to negotiate two new franchise agreements (which mirror each other) with Cox and Adelphia. Adelphia's bankruptcy filing and subsequent sale of Adelphia assets to Time Warner greatly complicated our discussions. Preparing for the franchise renewals, the City Council worked with us to amend or wholly re- vamp three different ordinances (Public Right -of -Way, Cable Communications Franchises, and Wireless Telecommunications) to lay a framework for the Agreements and for the overall industry's work in the area. Those tasks are complete. Generally, the negotiations with both Cox and Adelphia/Time Warner have centered around template agreements - 95% of the template is a fairly standard version of the agreements that Mr. Marticorena's clients (cities and counties) have adopted in recent years. The remaining 5% of the discussions have centered around: How many channels will be dedicated for PEG -- now and in the future (in case our community programming grows). • How much money might be forthcoming for a one -time capital grant to enable us to install one -time projects like cameras in City Hall, a computer editing bay, and more. • How many remote City facilities will be hooked up with a network (called the "Institutional" or "I -Net" we talk about). • How much will the companies provide on an ongoing basis per subscriber to support community programming. Not surprisingly, areawide research shows that Cox and Adelphia have given a variety of capital grants, a variety of sums per subscriber, and different I -Net services to different municipalities. The City has been fairly aggressive in stressing that we know what other cities have received and that we expect similar treatment by our cable providers. Additional Background. In the 1960s, when the City of Newport Beach entered into two separate franchise agreements with companies that provide cable television service, cities across the nation had a significant amount of say in cable companies' operations, including: • Rates and rate increases; • Customer service standards; and • Channel selections and placement Cities were able to dictate these aspects of cable companies' operations because the cable companies used the public right -of -way to lay the cable "plant" (plant includes coaxial cable, boxes in the rights -of -way, connections to homes, etc). Federal law has changed significantly since the City adopted its franchise agreements - and both Federal and State law will continue to affect us in the years to come. The changes, in part, took away almost all of cities' regulatory abilities relating to cable and moved them to the Cox Communions Franchise and Ordinance June 27, 2006 Page 4 Federal Communications Commission (FCC or www.fcc.govl. Today, several different laws, ordinances, and agreements direct our decisions about cable television. The Effect of Changes in Law. It's important to remind the Council and Newport Beach residents that: • FCC regulates rates, not cities. The FCC alone has the power to regulate rates and channel selections, with the lone exception of rate regulation on the basic service tier of channels (typically Channels 2 -13 and PEG channels). Cities can only regulate basic tier rate increases if fully certified by the FCC to do so. Cable customers should note that cable companies rarely, if ever, raise the rates on this tier - much more frequent are rate increases on the larger (and unregulated) broadcastbasicher(Channels 14 -65 and up). • Other tiers are generally unregulated. In March 1999, the FCC (generally) deemed many cable systems subject to "effective competition" from satellite dish services and removed almost all rate regulation from cable TV. • Cable TV in Newport is not literally a monopoly. Cities like Newport Beach have non- exclusive franchise agreements. Any cable provider can come into the city limits, negotiate a franchise agreement, lay new cable, and compete directly with either Cox or Adelphia Similarly, Cox can attempt to compete directly with Adelphia and vice- versa. But doing so requires significant investment in new cable infrastructure, because each cable company owns the cable in the ground (and on poles). Very few companies anywhere in the nation "overbuild" other systems. • Denial of renewal is extremely difficult and expensive. Cities cannot typically deny a cable provider an opportunity to renew an existing franchise agreement. • Internet services are unregulated. Courts have ruled that the provision of Internet service over cable is not a cable - related service and therefore not subject to municipal regulation. Newport Beach can do very little to help cable customers interact with their Internet Service Providers (ISPs). • Many more changes are expected. Legislation in both Sacramento and Washington propose "statewide" franchises for telephone and cable providers - these may supercede local agencies' franchise abilities and some or all franchise revenue. A note about the City Charter. The City Charter's section on franchises (Article XIII) requires the City Council to adopt franchises via ordinance and to hold a public hearing prior to granting a franchise. It limits all franchise terms to 25 years or less if a determinate term is stated. The Article allows indeterminate terms but specifies that the City may end the franchise and possess the franchisee's property if the franchisee is out of compliance with the franchise agreement (Section 1302). Franchise Discussions. Since at least Fall 2000, the City has retained Mr. Marticorena to assist us in our telecommunications work. Mr. Marticorena has extensive experience in all phases of franchise renewals and ordinance amendments. Additionally, upon recommendation of the Telecom Committee, we hired Sue Buske of the Buske Group to conduct a statistically valid Cable Needs Assessment (CNA) to determine the community's desires and concerns regarding cable TV (for more information about the Assessment itself, see the Agenda Item from April 8, 2003 whereby the City Council formally accepted the Assessment). Given the problems with Adelphia (and generally no one there with whom to negotiate), we used the Assessment and the Statement of Minimum Goals to work with Cox on a new Franchise • Cox Commun9tions Franchise and Ordinance June 27, 2006 Page 5 Agreement. A Franchise Agreement is separate and distinct from a new Cable Communications Ordinance as follows: The Ordinance reflects the regulatory environment and practices that any cable provider must follow while doing business in the City. The Agreement(s) reflects specific permission to a specific company to use the public right -of -way to operate a cable system.. Included in the permission are negotiated terms by the company and the City as to adequate compensation paid to the City and its residents for the use of the right -of -way. Adequate compensation may include the 5 % franchise fee, dedication of equipment, dedication of specific channels and support for Public, Educational, and Government (PEG) services, and more. The Proposed Franchise Agreement with Cox. The attached Franchise Agreement - which, as noted, must be adopted by Ordinance - has the following key provisions: TERM: Until April 1, 2011 - with an option to extend to April 1, 2018 FRANCHISE FEE: 5% LETTER OF CREDIT;$17.25 per subscriber BANDWIDTH At least 750 Mhz LOCAL OFFICE` Within 20 miles PEG SUPPORT: Initial grant of $60 /subscriber (roughly $660,000); and Additional grant of $30 /new subscriber over 2006's numbers in 2010. No ongoing PEG support PEG CHANNELS: Three immediately, up to 2 more if needed. OTHER: Drops provided to City facilities in Cox service area Undergrounding required Subscriber Complaint Log kept Technical Service standards met Assurance that changes to State or Federal law will not impact Capital Grant or Franchise Fee payments for the duration of the Franchise Term. More This tentative agreement with Cox compares to the negotiated settlement with Adelphia -Time Warner, via a proposed Memorandum of Understanding (MOU). The'MOU twould be binding on Time Warner for ten years (until December 31, 2016) and includes the following benefits from Time Warner 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). Importantly, Cox asserts that Cox will not and has not agreed to ongoing PEG support instead, Cox offers limited one -time capital grants (thus the higher number at $60 /sub than the below $28 /sub offered by the Time Warner MOU; 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.. ® Cox Communiollons Franchise and Ordinance June 27, 2006 Page 6 Staff agrees with the proposed terms of the Cox Franchise Agreement and recommends that the Council approve the Cox FA by ordinance as required by the City Charter. 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 Kiff _ Assistant City Manager Attachments: Ordinance No. 2006 - Draft Franchise Agreement with Cox • Cox Commun(Ations Franchise and Ordinance June 27, 2006 Page 7 ORDINANCE NO. 2006 - AN ORDINANCE OF THE CITY OF NEWPORT BEACH GRANTING TO COXCOM, INCORPORATED, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE A CABLE COMMUNICATIONS SYSTEM WITHIN THE CITY OF NEWPORT BEACH 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 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. is (b) "Council' shall mean the present governing body or 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) "Cox" shall mean CoxCom, Incorporated, a Delaware Corporation, doing business as Cox Communications Orange County, its employees, agents, successors and assigns. (e) "Subscribers" shall mean any person or entity receiving for any purpose the Cable Service of Cox herein. (f) "Franchise Area' shall mean the territory within the City throughout which Cox shall be authorized to construct, maintain and operate its system which is depicted on Exhibit A, which is incorporated herein by this reference, and shall include any enlargements thereof and additions thereto approved by the City in writing. (g) "Franchise Documents" shall mean and shall include all of the following: (1) Article XII I of the Charter of the City of Newport Beach. Cox Communictions Franchise and Ordinance June 27, 2006 Page 8 (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 Cable Systems within the City of Newport Beach which are adopted by the City Council. (4) The written acceptance of a Cable Communications Franchise filed with the City by Cox. (5) The Franchise Agreement approved by the Office of the City Attorney executed by the City and Cox. (i) "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. There is hereby granted to Cox 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 Cable System to transmit television and FM radio signals, within the franchise area depicted on Exhibit A. The Cable 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 initial term of this franchise shall commence upon its approval by the Council (the "Effective Date "), and shall expire on April 1, 2011, provided that Cox has filed written notice of acceptance and executed the franchise agreement in accordance with the requirement of Section 9 of this ordinance ( "Initial Term "). At Cox's written election filed with the City no later than January 1, 2010, Cox may extend the Initial Term by seven M ® Cox CommunIt tions Franchise and Ordinance June 27, 2006 Page 9 (7) additional years so that the franchise will expire on April 1, 2018. 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, Cox agrees to be bound by all of the terms, provisions and conditions contained in said franchise documents. SECTION 6. Right of City to Adopt Additional Rules and Regulations. The right is hereby reserved to the City 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 the police power. SECTION 7. Prohibited Activities of Cox. Cox 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 Cox 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 Cox is prohibited from engaging in by the provisions hereof. SECTION 8. 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 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 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 transfers 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 Council. SECTION 9. Acceptance of Franchise. Cox Communications Franchise and Ordinance June 27, 2006 Page 10 0 This franchise shall not become effective for any purpose unless and until the franchise agreement is executed by Cox and the City and written acceptance of the franchise shall have been filed with the City Clerk. The franchise agreement and written acceptance of the franchise 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. An executed franchise agreement and written acceptance of the franchise shall be filed by Cox not later than 12:01 P.M. of the fifteenth (15th) day next following the date of the adoption by the Council of this ordinance; and, in default of the filing of an executed franchise agreement and written acceptance of the franchise as herein required, Cox shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance by Cox of the franchise shall not be received by the City Clerk and the City shall not execute the franchise agreement, and such Cox shall have no rights, remedies, or redress in the premises, unless and until the City Council shall, by resolution, determine that such written acceptance of the franchise be received and filed and that the franchise agreement be executed by the City, and then upon such terms and conditions as the Council may impose. SECTION 10. Annual Franchise Fee. Cox shall pay annually to the City during the life of this franchise for the privilege of operating a Cable System under this franchise the franchise fees and other payments set forth in the franchise agreement. SECTION 11: 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 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 12: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption; provided, however, that the franchise hereby granted shall not become effective unless and until Cox files written acceptance thereof and executes and delivers the franchise agreement in the manner specified in Section 9 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 the Newport Beach Municipal Code and/or the franchise agreement. SECTION 13: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 27th day of June, 2006, and adopted on the _ day of 2006, by the following vote, to wit:. 1111 0 AYES, COUNCILMEMBERS. NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MA ATTEST: CITY CLERK 0 11 Cox Communions Franchise and Ordinance June 27, 2006 Page 11 • 9 0 CABLE SYSTEM FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND COXCOM INCORPORATED 11 !3 0 0 TABLE OF CONTENTS SECTION 1 GRANT OF FRANCHISE 2 9 1.1 Authority 2 1.2 Franchise Term 2 1.3 Scope of Franchise 2 1.4 Conflict with Municipal Code 2 1.5 Definitions 3 SECTION 2 GENERAL REQUIREMENTS 3 2.1 Governing Requirements 3 2.2 Franchise Fee 3 2.3 Letter of Credit 8 2.4 Insurance 10 2.5 Defense and Satisfaction of Claims 14 2.6 Franchise Violations /Liquidated Damages and Other Remedies 16 SECTION 3 SERVICE AREA AND LINE EXTENSION POLICY 20 3.1 Franchise and Service Area 20 3.2 System Extension Policy 21 33 Provision of Service 21 3.4 Commercial Areas 22 SECTION 4 SYSTEM CONSTRUCTION 22 4.1 Emergency Override System for Analog and Digital Cable 22 4.2 Standby Power 22 4.3 Parental Control Lock 23 4.4 Status Monitoring 23 4.5 Technical Standards 23 SECTION 5 SERVICES AND PROGRAMMING 23 5.1 Services and Broad Categories of Video Programming 23 5.2 Minimum System Design and Capacity Requirements 24 5.3 Local Office 26 5.4 Services for the Disabled 26 SECTION 6 LOCAL CABLE ACCESS AND COX SUPPORT 27 6.1 Company Support for PEG Access 27 6.2 Governmental and Institutional Drop Policy; Provision of Live Local Insertion Locations 32 6.3 Compliance with Federal Law 34 SECTION 7 MISCELLANEOUS 34 7.1 Rate Regulation 34 7.2 Reporting Requirements 34 7.3 Technical Standards Testing 36 7.4 "Most Favored Nations" Review 37 7.5 Restrictions against Transfers 39 1 U 11 7.6 Use of the Public Right -of -Way 7.7 Construction Responsibility 7.8 Compliance with Construction Standards 7.9 Compliance with all Laws, City Orders and the Code 7.10 Choice of Law 7.11 Notices 7.12 Successors and Assigns 7.13 Separability 7.14 Possessory Interest 7.15 Meet and Confer 7.16 Rights Cumulative 7.17 No Waiver 7.18 Declaration of Invalidity 7.19 Time of the Essence; Maintenance of Records 7.20 Force Majeure 7.21 Interpretation 7,22 Exhibits EXHIBITS A. Service Area Map B. Drops to Public Buildings, Institutions and Facilities C. Live Local Insertion Locations 39 40 41 41 41 42 42 42 43 43 43 43 44 44 45 45 45 i5 • • AGREEMENT This FRANCHISE Agreement (the "Franchise" or "Agreement ") is made and entered into this day of July, 2006 at Newport Beach, California, by and between the City of Newport Beach, a municipal corporation of the State of California ( "City "), and CoxCom, Inc. ( "Company "). RECITALS City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Newport Beach. A. Company is incorporated under the laws of the State of Delaware and provides cable television services in cities throughout the State of California. B. Section 1300 et seq. of the Newport Beach City Charter authorizes the City to enter into franchise agreements for cable television services. C. In 2004, the City adopted Ordinance No. 2004 -8, which enacted Section 5.44 of the Newport Beach Municipal Code ( "Code "), outlining the duties and obligations for operating a cable television franchise in the City. D. Pursuant to this Agreement, City desires to authorize Company to provide non - exclusive cable services within the City. E. The City Council has determined that the grant of a non - exclusive franchise to Company to provide cable services is in the public interest. NOW THEREFORE, the City of Newport Beach hereby grants to Company a non - exclusive Franchise to operate a cable communications system to provide cable services in the City of Newport Beach in accordance with the provisions of Chapter 5.44 I b, ® • of the Code, subject to the terms and conditions set forth in this Agreement. SECTION 1 GRANT OF FRANCHISE 1.1 Authority This non - exclusive Franchise has been granted and approved pursuant to the provisions of the Charter of the City and Chapter 5.44, as amended, of the Code. This Franchise is in the form of a non- exclusive franchise, contract and agreement. 1.2 Franchise Term The term of this Franchise shall commence upon its approval by the City Council (the "Effective Date "), and shall expire on April 1, 2011, At Company's written election filed with the City no later than January 1, 2010, Company may extend the initial term by seven (7) additional years so that the Franchise will expire on April 1, 2018. 1.3 Scope of Franchise A. Company is authorized and obligated to construct; reconstruct, maintain and operate the System within the public streets and rights -of -way. This authority includes the privilege to use Company's cable television system in the Service Area, defined in Section 3.1 below, (hereinafter the "System ") to provide Cable Service to subscribers in the Service Area located in all residential dwellings, commercial structures, and industrial structures. B. This Franchise solely and exclusively creates, defines, and limits the legal rights and obligations between City and Company and does not, in any way, obligate the City to take any action, actions or refrain from taking any action, or actions, to or in relation to any third party. 1.4 Conflict with Municipal Code The provisions of Chapter 5.44 of the Code are hereby incorporated by reference as if set out in full, and form part of the terms and conditions of this Agreement. In the 2 l� • • event of a direct and clear conflict between the terms and conditions of this Agreement and the provisions of Chapter 5.44, this Agreement shall prevail. 1.5 Definitions The definitions contained in Chapter 5.44 of the Code are incorporated by reference as if fully set forth in this Agreement. Words, terms, or phrases not defined herein or in Chapter 5.44 of the Code shall first have the meaning as defined in the Cable Act, and then the special meanings or connotations used in any industry, business, trade, or profession where they commonly carry such special meanings. If those special meanings are not common, they will have the standard definitions as set forth in commonly used and accepted dictionaries of the English language. SECTION 2 GENERAL, REQUIREMENTS 2.1 Governing Requirements Company shall comply with all requirements of this Agreement, Chapter 5.44 of the Code and all applicable local, state and federal laws, statutes, ordinances, rules, regulations, and orders. 2.2 Franchise Fee A. Company shall pay to City an annual Franchise Fee of five percent (5 %) of Gross Annual Revenues, as that term is defined in Section 5.44.020 of the Code. If federal or state law permits an annual Franchise Fee of greater than five (5 %), the City shall be entitled to the maximum fee allowable by law. B. If federal or state law permits the Company to provide non -video Telecommunications Services to Subscribers (such as telephone communications) or other non -Cable System services through the facilities of the Cable System, and the City has the authority to collect either a Franchise Fee or an in- lieu -of- franchise fee payment on such services, then the Company shall pay a fee for revenues derived from 3 • • such services at the rate established in an ordinance and /or resolution adopted by the 0 City Council. C. Payments due the City shall be computed quarterly, and shall be paid within forty-five calendar (45) days after the close of each calendar quarter. The payment shall be accompanied by a report showing the basis for the computation and such other facts as may be required by the City to determine the accuracy of the payment. In the event the Effective Date does not occur on the first day of a calendar quarter, then Company shall pay the franchise fee for the fractional quarter based on a per diem basis, within forty -five (45) calendar days after the close the fractional calendar quarter. A final annual reconciliation, and payment if any, shall be delivered to City by Company within ninety calendar (90) days after the end of each calendar year. D. If any Franchise Fee payment or recomputed amount is not made on or before the dates specified above in Section 2.2 (C), Company shall pay as additional compensation the greater of the following: 1. An interest charge, computed from the applicable due date, at an annual rate equal to the prevailing commercial prime interest rate in effect upon the due date, plus three percent (3 %). 2. In addition to the interest charge on any late payment, if a payment is late by sixty (60) days or more, Company shall pay a sum of money equal to five percent (5 %) of the amount due in order to defray reasonable additional documented and itemized expenses and costs incurred by City as a result of such delinquent payment. E. No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this Franchise, or for any other performance 4 IC4 0 0 by Company of an obligation hereunder. All amounts shall be subject to audit at the times and in the manner authorized by Section 5.44.130 of the Code. F. Payments of compensation made by Company to the City under this Agreement are in addition to, and exclusive of, any and all authorized taxes, business license fees, and other fees, levies, or assessments now in effect or subsequently adopted in accordance with state and federal law. G. Except for the compensation payments expressly required by this Section, each of the payments or contributions made by, or the services, equipment, facilities, support, resources, or other activities required to be provided or performed by Company pursuant to this Agreement, are voluntary and are not "franchise fees" within the meaning of the Cable Act (47 U.S.C. §542.(g)(2)). H. The compensation payments due from Company to City pursuant to this Section shall take precedence over all other payments, contributions, services, equipment, facilities, support, resources, or other activities to be paid or supplied by Company pursuant to this Franchise. I. The compensation and other payments to be made pursuant to this Franchise Agreement 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 Company or any Affiliated Person shall be required to pay to City or to any state or federal agency or authority, all of which shall be separate and distinct obligations of Company and Affiliated Persons. J. Neither Company nor any Affiliated Person shall have or make any claim for any deduction or other credit of all or any part of the amount of the compensation or other payments to be made pursuant to this Franchise from or against 0 any City or other governmental taxes of general applicability (including any such tax, fee, 5 n!) 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 Company or any Affiliated Person is required to pay to City or other governmental agency. K. Neither Company nor any Affiliated Person shall apply or seek to apply all or any part of the amount of the compensation or other payments to be made pursuant to this Franchise 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, each of which shall be deemed to be separate and distinct obligations of Company and Affiliated Persons. L. Neither Company nor any Affiliated Person shall 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 any of the compensation or other payments to be made pursuant to this Franchise, each of which shall be deemed to be separate and distinct obligations of Company and Affiliated Persons. M. City acknowledges that, during the term of this Agreement, Company may offer to its subscribers, at a discounted rate, a bundled or combined package of certain cable services that are subject to the franchise fee referenced above, and other services that are not subject to the franchise fee. With regard to such bundled or combined services, the following provisions are applicable: During the term of this Agreement, if Company offers to individual subscribers cable services subject to the franchise fee that are bundled or combined with non -cable services that are not subject to the franchise fee, then the revenue from those bundled or combined services 3 �i 0 • must be allocated on the basis of proportionality, as follows: 1. The percentage that the price for all bundled services is 9 discounted from the established retail rates for the individual services, as those rates are advertised by Company in its marketing materials or published rate cards, will be prorated across all services in the bundled package, subject to the adjustment referenced below in Section 2.2(M)(2). By way of example, Company may offer a bundle of voice, video; and data services for a flat fee of Seventy -Five Dollars ($75.00), where the aggregate retail rate of those services when purchased on an individual basis would equal One Hundred Dollars ($100.00), If there is no service in that bundled package subject to a mandated tariff rate, Company would apply a twenty -five percent (25 %) discount to each individual service. Thus, if the established retail rate for video service was then Fifty Dollars ($50.00), Company would recognize revenue in the amount of Thirty -Seven Dollars and Fifty Cents ($37.50) and would pay a franchise fee on that amount. Company shall provide the City with any and all requested information and documents regarding the charge for each individual service for any bundled package within ten (10) days of the City requesting this information and documents. 2. The revenue derived by Company from cable services that are subject to mandatory tariff rates imposed by the California Public Utilities Commission, or any similar governmental rate - setting authority, will be deducted from the aggregate revenue to determine the revenue that is subject to the franchise fee_ 3. Company will not structure the pricing of any bundled or combined services so as to intentionally or unreasonably cause a reduction in the Gross Annual Revenue against which franchise the City may impose fees or other proportionately derived taxes, surcharges, or fees. 0 7 �ry 4. If City reasonably determines that Company has unlawfully, inequitably, or contrary to Section 2.2(M) allocated Gross Annual Revenue between video services and non -video services so as to reduce its franchise fee payment obligations, then the parties will meet within fifteen (15) calendar days, upon advance notice from the City, to discuss the allocation methodology. If the parties cannot resolve the dispute within a reasonable period of time, then the parties will submit the matter to a mutually agreeable third party for non - binding mediation. The parties will share the cost of the mediation equally. If the mediation is not successful, or if the parties cannot mutually agree upon a mediator, then either party may file an action in a court of competent jurisdiction in the County of Orange or pursue any other remedies available under the law or this Agreement. 2.3 Letter of Credit A. Within thirty (30) days of the Effective Date of this Agreement, Company shall post an irrevocable standby Letter of Credit to provide City with a security fund (hereinafter "Letter of Credit ") as security for the faithful performance by Company of all material provisions of this Agreement, in accordance with Section 5.44.060:13(1)(a) of the Code. B. The Letter of Credit shall be in the amount of Seventeen Dollars and Twenty -Five Cents ($17.25) per current Subscriber, but not less than One Hundred Thousand Dollars ($100,000.00). C. The Letter of Credit provider shall have and maintain, at a minimum, a credit rating of A issued by Moody's or Standard & Poor's. The letter of credit shall incorporate wording approved by the City Attorney enabling City to draw such sums from time to time as City may find necessary to satisfy any material default of Company or to meet any payment due City under or in connection with the Code or 0 ;Q3 this Franchise, upon ten (10) days' written notice to the Letter of Credit provider. The Letter of Credit shall provide in substance that, upon written notice by City of a material default or failure to make a payment due to City under or in connection with the Code or this Franchise; City may draw upon the Letter of Credit without any offset, contingencies or conditions of any. kind-This Letter of Credit shall provide that it may not be revoked or amended without City's prior written approval. Company shall obtain prior approval by the City Attorney of the wording of the Letter of Credit, the form of the Letter of Credit, and the Letter of Credit provider. Such approval shall not be unreasonably withheld. D. The Letter of Credit requirement may, in the unilateral discretion of City, be increased by up to three (3) times its original amount if there is an assignment, transfer, and /or Change of Control of the Franchise and /or the Company. E. The Letter of Credit may be assessed by City for those purposes specified in this Agreement and in Section 5.44 of the Code', in accordance with the 0 procedures set forth herein or in Section 5.44.060. B.1 of the Code. F. The rights reserved to the City with respect to the letter of Credit are in addition to all other rights of the City, and no action, proceeding or exercise of any right with respect to such Letter of Credit shall affect any other right the City may have. G. The Letter of Credit required by this Section satisfies the financial security requirements of this Franchise Agreement and is in lieu of a Security Fund required pursuant to Sections 5.44.060(B)(1)(a) and 13.20.130(A) of the Code; however, this satisfaction of security requirements does not apply to any rebuild, upgrade, and other substantial construction, for which additional requirements may be imposed by the City. Nothing herein shall be deemed a waiver of the normal permit and bonding requirements made of all contractors working within the City's rights -of -way. i Before performing such work, Company shall comply with Chapter 13.20 of the Code. w W 2.4 Insurance Company shall obtain, provide and maintain at its own expense during the duration of the Franchise, a policy or policies of liability insurance of the types and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Company shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by the City's Risk Manager. Current certification of insurance shall be kept on file with City's at all times during the term of the Franchise. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company authorized by the Insurance Commissioner to transact the business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Company shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for its employees in accordance with the laws of the State of California. In addition, Company shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non- renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar 10 r4ls i • days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Company. 2. Automobile Liability Coverage. Company shall maintain automobile insurance coverage covering bodily injury and property damage for all activities of Company arising out of or in connection with work to be performed under this Franchise, including coverage for any owned, hired, non -owned owned (e.g., owned by Company's employees and /or subcontractors and used in the course and scope of employment), or rented vehicles, in an amount not less than two million dollars ($2,000,000), combined single limit for each occurrence. 3. General Liability Coverage. Company shall obtain and maintain General Liability Insurance in an amount not less than two million five hundred thousand dollars ($2,500,000) per occurrence for bodily personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Franchise or the general aggregate limit shall be twice the required occurrence limit. This limit shall increase to three million dollars ($3,000,000) in year ten (10) of the Franchise. Such insurance coverage shall include, without limitation: a. Contractual liability coverage adequate to meet Company's indemnification obligations under this Contract; and b. A cross - liability clause. 4. Slander /Libel /Defamation Liability. Company shall obtain and maintain Slander /Libel /Defamation Liability Insurance in the aggregate annual amount of one million dollars ($1,000,000) with City of Newport Beach as additional insured_ 11 0 9 0 o^ E. Endorsements. With the exception of workers' compensation insurance coverage, each insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Company. 2 This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Company's operations under this Franchise. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. > 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. F. Proof of Insurance. Within thirty (30) calendar days from the Effective Date of this Franchise, Company shall furnish proof to City that satisfactory insurance policies for all insurance required by this Franchise are in place. The insurance policies for vehicles shall be in effect prior to usage. City may, from time to time, reasonably increase the required amount of insurance. 12 aO • • G. Notice of Change in Coverage. All insurance policies shall provide that in the event of material change, reduction, or cancellation or non - renewal by the insurance carrier for any reason, not less than thirty (30) calendar days written notice will be given to City by registered mail of such intent to cancel, materially change, reduce or not renew the coverage. An authorized agent of such insurance carrier shall provide to City, on such schedule as is requested by City, a certification that all insurance premiums have been paid and all coverage is in force. If for any reason Company fails to obtain or keep any of such insurance in force, City may (but shall not be required to) obtain such insurance, in which event Company shall promptly reimburse City its premium cost therefore plus interest at City's portfolio rate until paid. H. Timely Notice of Claims. Company shall give City prompt and timely, notice of claim made or suit instituted arising out of or resulting from Company's performance under this Franchise. I. Deductibles /Self- Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by City. At the option of City, Company shall reduce or eliminate such deductibles or self- insured retention as respects City, its officials, officers, employees and agents, or Company shall procure a bond guaranteeing payment of losses and related investigations, claims administration' and defense expenses. J. Indemnification for Insurance Coverage. Company hereby indemnifies City for any damage resulting to it from failure of either City or any subcontractor to take out and maintain such insurance. 13 0 2� • • K. Insurance Requirements under Chapter 13.20 (Public- Rights -of- Provision of the insurance as required herein shall be deemed to satisfy the insurance requirements required for permitting work in the City's public right -of -way under Chapter 13.20 of the Code, provided that all insurance policies provide coverage for such work. This subsection does not apply, however, to any rebuild, upgrade, or other substantial construction in the public right of way, for which the City may impose additional requirements. 2.5 Defense and Satisfaction of Claims A. Company shall, at its sole cost and expense, upon demand by City, defend City, its officers, boards, commissions, employees and/or agents, in any and all suits, actions, or other legal proceedings, whether judicial, quasi judicial, administrative, or otherwise arising out of the negligent or willful acts or omissions of Company, its employees, contractors, subcontractors and agents. Where Company is required to provide legal services to City under this paragraph, and chooses to utilize joint counsel, the parties shall make a good faith effort to cooperate and agree upon litigation strategy and implementation thereof. In the event that Company's litigation strategy or choice of legal counsel create a conflict of interest; or result in inadequate representation to protect City's interests and separate counsel is necessary for the representation of City, City may obtain separate legal counsel chosen by City at Company's cost and expense; provided, however, that if City obtains separate legal counsel as set forth above, Company is only obligated to pay an hourly amount for legal services which does not exceed one hundred percent (100 %) of the highest hourly rate that City has paid for legal services within the twenty -four (24) month period prior to obtaining legal services as provided in this paragraph. City shall submit statements for attorneys' fees to 14 2 0 • Company on a regular basis, which shall be paid to City within sixty (60) calendar days of Company's receipt of said statement. 0 B. Company shall cause to be paid and satisfied any judgment, decree, or order rendered, made, or issued against Company, City, its officers, boards, commissions, employees or agents, and hold City harmless there from, arising out of the negligent or willful acts or omissions of Company, its employees, contractors, subcontractors, agents, or representatives, in connection with the construction, operation, maintenance, repair, or other activities in relation to Company's cable system including, but not limited to, damages arising out of copyright infringement, defamation, personal injury and property damage liability, and antitrust liability, whether or not said damages are compensatory or punitive, provided, however, Company shall not be required pursuant to this paragraph to hold City harmless for actions relating to programming decisions outside of Company's control or City's use of the PEG Channels 0 required herein. Such indemnity shall exist and continue without reference to the amount of any bond, policy of insurance, deposit, undertaking, or other assurance; provided, however, City may not enter into any compromise or settlement which imposes any obligation on Company without Company's consent, which consent shall not be unreasonably withheld, and Company shall not make or enter into any compromise or settlement of any claim, demand, causes of action, suit, or other proceedings which settlement involves anything other than the payment of money by Company without contribution by City, without first obtaining the written consent of City, which consent shall not be unreasonably withheld. C. The indemnification provided pursuant to paragraphs 2.5(A) and 2.5(B) above shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in those paragraphs, regardless of 15 3D s • whether or not City has prepared, supplied, or approved the plans and /or specifications for the operation or regardless of whether or not any insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 2.6 Franchise Violations /Liquidated Damages and Other Remedies 0 In addition to, and without limiting the damages for delays as specified in Section 2.2 of this Franchise, City may impose liquidated damages as described below for the following violations and in the amounts described below, along with compliance, interest, and other financial remedies set forth in this Franchise or the Ordinance. 1. Technical Standards Violations. If more than ten percent (10 %) of the locations tested pursuant to FCC standards fail to meet the FCC technical standards, City may impose liquidated damages in an amount equal to Two Hundred Dollars ($200.00) per day, measured from the first day non - compliance is detected and continuing until the day FCC standards have been satisfied at each and every re- tested location, if Company does not cure the violation in accordance with Section 2.6(B)(1`) below. 2. Customer Service Violations. If Company violates, in any material way, any of the customer service standards specified in the Code or this Franchise, City may impose liquidated damages in the amount of Two Hundred Dollars ($200.00) per violation per day, measured from the date Company first received written notice of the violation, if Company does not cure the violation in accordance with Section 2.6(B)(1) below. 3. Other Violations. For all violations and breaches specified in this Franchise Agreement or the Code, City may impose liquidated damages in the amount of Two Hundred Dollars 16 �1 • s ($200.00) per day per violation, measured from the date Company first received written notice of the violation, if Company does not cure the violation in accordance with Section 2.6(B)(1) below. 4. Reduction of Damages and Security Fund /Letter of Credit. If City does not impose any liquidated damages on Company pursuant to this Section or Section 2.2 within four (4) years after the Effective Date, after such four (4) year period, the penalties contained in Sections 2.6(6)(1)(2)(3) above shall be reduced to one hundred and fifty dollars ($150) per day per violation. In addition, the Letter of Credit Required pursuant to Section 2.3 above shall be reduced to seventy -five percent (75 %) of the original amount. However, the original penalties and the original amount of the Letter of Credit (as increased as allowed herein upon transfer, assignment or change of control), shall be immediately reinstated if: (a) City imposes two (2) penalties on Company in any twelve (12) month period, and /or (b) if Company assigns, sells, leases or otherwise transfers this Franchise or control of the System. This entire paragraph shall immediately cease to have any force or effect if City imposes a penalty or penalties on Company within the four (4) year period that commences on the Effective Date of this Franchise. B. Payment of Damages. 1: Cure. In the event City has reason to believe that Company has failed to comply with any material provision of this Franchise or the Code and therefore desires to impose liquidated damages on Company as stipulated in Section 2.6 and in Section 5.44 of the Code, the City Manager, or his designee, shall notify Company in writing of the provision or provisions that City believes may be in default as well as the applicable cure period. Company shall, upon receipt of said Notice: 17 9'2 0 a. Cure the alleged violation within the cure period that is provided by the Code or if no cure period is provided, within five (5) working days of said notice. In the event that Company does not correct the violation within the applicable cure period, liquidated damages may be imposed from the applicable time set forth in Section 2.6(A); or b. Respond to the City in writing during the cure period contesting City's assertion of violation and providing such information or documentation as may be necessary to support Company's position and /or request an extension of the cure period. The decision to extend the cure period shall be within the sole discretion of the City. 2, Appeal and Payment. a. In the event Company fails to respond to the notice of violation, or to cure the violation within the applicable cure period, as may be extended in the sole discretion of the City, or provide an explanation for failure to cure acceptable to City, the City or its designee shall schedule a hearing no sooner than ten (10) working days after written notice to Company of the expiration of the cure period and the scheduling of the hearing. Company shall be provided an opportunity to be heard at such hearing, including the right to present evidence, cross - examine witnesses, and be represented by counsel. Within thirty (30) calendar days after such hearing, City shall determine whether or not Company is in violation and submit written findings of facts supporting such determination. b. The hearing described above may be conducted, at City's selection, either before the City Council or before an administrative officer or commission selected by the City Council. In the event that such hearing is not held before the City Council; Company shall possess the right to appeal to the City Council 18 a', • within ten (10) working days of issuance of the statement of decision and findings of fact. The City Council shall decide such appeal pursuant to a hearing at which Company 10 has an opportunity to be heard and the right to present evidence, examine witnesses and be represented by counsel. Company shall have the right to appeal City Council's decision to a court of competent jurisdiction within ninety (90) calendar days of any final decision by the City Council. In the event a court orders repayment of any liquidated damages imposed by City to Company, interest on such amounts shall be included at the rate paid by the Local Agency Investment Fund to the City for City Investments. C. All liquidated damages shall be due and owing thirty (30) calendar days after the final decision by either City Council or the hearing officer, in the event Company does not appeal to the City Council. Any liquidated damages assessed may be levied directly against the Letter of Credit and collected by the City thirty (30) calendar days from the date such damages are due. Assessment of liquidated damages shall not constitute a waiver by City of any other right or remedy it may have under the Franchise or under applicable law including, without Limitation, its right to recover additional damages, losses, costs and expenses, including reasonable attorneys' fees, the City may have suffered or incurred by reason of Company's breach of this Agreement. Nothing in this paragraph is intended to waive, modify or otherwise affect Company's rights under the Code, this Franchise, or any applicable law; except for the specific procedures expressly provided herein. No financial penalties will be applied pursuant to the Code, ordinance or other similar document for the same offenses which liquidated damages apply. 19 E q • i C. Validity of Liquidated Damages. The parties acknowledge that it would be impractical or extremely difficult to fix actual damages in the case of Company's default, and that the amount of liquidated damages specified above is a reasonable and complete estimate of City's damages. Company recognizes that Company's prompt development and offering of cable television service for which penalties can be imposed is of critical importance to the City. City: Company: (Initials) (Initials) D. Removal of Property. The City's right to require Company to remove its equipment and /or portions of its System as provided in Section 5.44 of the Code shall apply only if the Franchise is revoked, otherwise terminated prior to its expiration, or expires based upon a final and no longer appealable decision of the City not to renew the Franchise pursuant to the formal renewal provisions of the Cable Communications Policy Act of 1984, as amended (the "Cable Act "). SECTION 3 SERVICE AREA AND LINE EXTENSION POLICY 3.1 Franchise and Service Area Company shall design, construct and maintain the Cable System in such a manner to pass by every single or multiple -unit dwelling unit in the service area set forth on Exhibit A, including any and all territory immediately adjoining this area as may be annexed thereto, during the term of this Agreement ( "Service Area"). Company shall offer the full range of Cable Services to all residents of the Service Area and shall make the Cable System available on an identical basis to all dwelling units constructed during 20 36 the term of this Franchise. For new construction in residential, and industrial areas, Company shall make the system available at the, same time as the units, residential, or otherwise, are constructed. Nothing herein shall preclude Company from providing service to multi - family dwellings and other residential developments on a non- discriminatory, discounted, bulk- billing basis. 3.2 System Extension Policy All Subscribers within one hundred twenty -five (125) feet from the closest public right -of -way or easement, above ground or underground, shall be provided service for the standard installation fee. Subscribers located beyond one hundred twenty -five (125) feet from the closest public right -of -way or easement will be connected upon the payment of Company's fair and reasonable charges for time and materials for that portion of the installation which exceeds one hundred twenty -five (125) feet. Fair and reasonable charges shall be equal to the Company's actual cost of time and materials for the incremental portion of the installation beyond the footage limitation established above. 3.3 Provision of Service Unless the Subscriber requests otherwise, Company shall deliver initial service within seven (7) business days after receipt of a Subscriber order so long as the Subscriber is within the existing Service Area. Service additions or deletions shall be made within twenty -four (24) hours of a Subscriber's written or verbal request, unless additional terminal equipment is required, in which case the Company shall make such service change within seven (7) business days. The Company shall provide all Subscribers, prior to the initiation of cable service and thereafter, with the ability to subscribe to only Basic Service, which shall include local PEG channels. Failure to comply with this provision shall result in the assessment of liquidated damages as set 21 I • • forth in Section 2.6(A)(2) for non - compliance, incurred daily until Subscriber requests are completed. 3.4 Commercial Areas For areas of the City that are primarily commercial, the Company shall install appropriate conduit at any time that open utility trenches are available and the Company has received at least thirty (30) calendar days advance notice of the availability of the trenches. Residences in primarily commercial areas shall be provided with Cable Service upon request, at an installation fee equal to Company's actual costs of time and materials. SECTION 4 SYSTEM CONSTRUCTION 4.1 Emergency Override System for Analog and Digital Cable Company shall provide, install, activate, and maintain an emergency override system which includes audio override on all analog channels of Company's system and character generated message capabilities on designated PEG Channels, receivable only within the City area. The City shall be able to activate, provide audio programming, and terminate such emergency audio override on City designated channels via dial -up or dedicated telephone control upon system upgrade. City shall use the audio override and character generated system only in emergency situations, as declared by the City Council or the City Manager when there is a threat to the public welfare, health or safety. 4.2 Standby Power Upon the Effective Date of this Agreement, Company shall provide standby power generating capacity at the Cable System control center and at all hubs capable of providing at least two (2) hours of emergency supply. Company shall maintain standby power system supplies throughout the major trunk cable networks capable of providing 22 • emergency power within the standard limits of commercially available power supply units. 4.3 Parental Control Lock Company shall provide Subscribers, upon request, with a parental control locking device or digital code or other means that prevents the distribution of the video and audio portions of channels as designated by the Subscriber. 4.4 Status Monitoring Company shall provide an automatic status monitoring system or a functional equivalent when the Cable System has been activated for interactive service, provided that such status monitoring is technically and economically feasible to Company's satisfaction. 4.5 Technical Standards The Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards), as amended from time to time, shall apply, to the extent permitted by applicable law. SECTION 5 SERVICES AND PROGRAMMING 5.1 Services and Broad Categories of Video Programming The Company should provide, at a minimum, the following broad categories of services and video programming: local broadcast, public affairs, satellite services, news, sports, cultural, foreign language programming (to be cleared by Company as to the appropriateness of subject matter and content), general entertainment and children's programming. If any listed broad category of service or video programming shall become unavailable, or is commercially impractical, or cannot be provided under existing FCC regulations, Company should provide substitute programming of the same category if reasonably available. City may request Company to cooperate with City in 23 2� developing and distributing a printed PEG channel guide at City's cost. Said printed guide shall be of a reasonable weight and size and could include, but is not limited to, a printed guide distributed through the bills, via direct mail, or included in local newspaper or Company's printed guide, all at City's cost, if any, but shall not include advertising. If City requests Company to distribute a printed guide through the bills, Company shall comply so long as City produces said guide at its own cost for production and insertion and provides Company sufficient advance notice and there is room for said guide in Company's billing envelopes, and said guide does not take the place of other inserts desired by Company. City shall have complete responsibility for the content of any information included in said guide: The payments by City referred to in this Section shall be limited to reimbursing Company Company's actual incremental cost of providing and distributing the guide. 5.2 Minimum System Design and Capacity Requirements A. Minimum Design Criteria/ Channel Capacity. 1. Company shall operate a state -of- the -art Cable System designed to meet the needs of Newport Beach residents for the foreseeable future. 2. The Cable System shall be constructed with hybrid fiber coaxial ( "HFC ") architecture and engineered to deliver signals at forward frequencies up to and including a minimum bandwidth of Seven Hundred and Fifty (750) megahertz (MHz) on the Residential Network. 3. The System will be engineered to allow simultaneous downstream delivery of no less than one hundred ten (110) analog video channels delivered via fiber to node with each node serving no more than 500 households and 0 shall be constructed pursuant to the specifications and routing described herein. 24 2�1 • • B. Interactive Capacity and Services. The cable television system shall be two -way activated throughout the distribution plant. The two -way capability will allow for high -speed Internet service and "impulse" ordering of pay- per -view services, as well as accommodating telephony and video -on- demand services in the future. C. System Construction Requirements. In addition to the requirements of Sections 5.2(A) and 5.2(B) above, minimum system construction requirements shall be as follows: 1. Each analog video Channel requires Six Megahertz (6 MHz). However, through the use of digital Channels, Company has the ability of using existing technology to provide eight (8) to ten (10) video Channels in the same Six Megahertz (6 MHz) spectrum. 2. Company's Cable System standard shall use a "node plus four (4)" architecture, with a goal of no more than four (4) amplifiers used between the fiber node and homes. This design takes the fiber deeper into the Cable System so fewer homes are sharing the same fiber, resulting in more capacity to meet the individual needs of customers. Each node shall be designed to serve no more than Five Hundred (500) homes. 3. All nodes shall have standby power rated to provide a minimum of two (2) hours of operation in the event of a commercial power disruption. The headend will have standby power capable of providing two (2) hours of power in the event of a commercial power interruption. The Cable System forward (to Subscribers) bandwidth shall be a minimum of Fifty -Four to Eight Hundred Sixty Two Megahertz (54- 862 MHz). The reverse bandwidth (from Subscribers to Company) shall be a minimum of Five to Thirty Megahertz (5 -30 MHz). 25 40 • 4. Company shall provide a list of Node Locations and the number of homes served by each node. conduit. 5. All underground trunk and distribution cables shall be in 6. The minimum technical standards for forward (downstream) and reverse (upstream) directions shall be those adopted by the FCC from time to time. To the extent that no FCC technical standards exist, the standards shall be those FCC technical standards in effect on the Effective Date, or, if none, those established by the City. 5.3 Local Office Company shall maintain a local office located within twenty (20) miles of the City's boundary. This office may not be closed without the City Council's prior written consent. 5.4 Services for the Disabled Company shall provide the maximum services and equipment available for persons with disabilities as reasonably practical. Information regarding the facilities, equipment and ongoing services for disabled persons shall be kept updated and the Company shall promptly submit to the City Manager's Office notification of any deletions or additions to such information. Company shall also comply with FCC rules regarding closed- captioning and shall offer, at no charge to subscribers or the City, closed captioned programming on all channels providing such options. The Company shall also maintain TDD (or equivalent) equipment at the Company's local office that will allow such Subscribers to contact the Company for any reason related to the System. 26 a� 0 0 SECTION 6 LOCAL CABLE ACCESS AND COX SUPPORT 6.1 Company Support for PEG Access Company shall provide the following support for programming, technology development, and implementation of non- commercial Public, Educational, and Governmental ('PEG') access within the Franchise Area. Provision of the items listed herein shall be considered binding commitments of Company within the terms of this Franchise, and if not provided, shall subject Company to applicable remedies and penalties for violations of the Franchise. Company shall provide the following: A. Channel Capacity Requirements. Company Support for Public, Educational or Government Access 'PEG Access': 1. Company shall designate three (3) initial channels for the exclusive use of the City which number can be increased in accordance with Section 6.1(A)(2). The PEG channels shall be under the exclusive management and editorial control of the City and shall not be shared with other cities. The City may designate a representative, such as a non - profit entity; to use and administer said channels, with all of the attendant rights and obligations provided to the City hereunder. In the event Company is required by federal law, regulations, or otherwise to change the channel number of a PEG channel, Company shall provide thirty (30) calendar days advance notice to the City and its customers. Should Company desire to change the channel number of a PEG channel that is in use by a PEG user within the criteria set forth in Section 6.1(A)(2) for any other reason, Company shall provide the City with the reason for change at least ninety (90) calendar days prior to the proposed change, advertise the change to customers on its website, in at least three (3) bill messages prior to the change, and in a television spot announcement that Company shall carry on its system for at least six (6) weeks prior to the change. Company shall also reimburse the City for 27 L�2 its actual costs for reprinting any materials such as program guides or other promotional • materials occasioned by the change in an amount not to exceed Seven Thousand Five Hundred Dollars ($7,500.00) for its costs of remarketing the channel. 2. Company shall make available additional PEG channels designated for use exclusively by the City pursuant to the following criteria: a. The initial government channel must be in use and programmed with non - commercial PEG programming, of which no more than ten (10) hours can be character generated programming, during at least eighty percent (80 %) of the weekdays for at least eighty percent (80 %) of the time during any consecutive six (6) hour period for ten (10) consecutive weeks. b. The initial public and /or educational channels must be in use and programmed with non - commercial and at least fifty percent (50 %) locally 0 produced programming, of which no more than ten (10) hours per week can be character- generated programming during at least eighty percent (80 %) of the weekdays for at least eighty percent (80 %) of the time during any consecutive six (6) hour period for ten (10) consecutive weeks. C. No more than thirty -three and a third percent (33- 113%) of the aggregate hours utilized for PEG programming during such ten (10) week period can represent repeat programming. d. Any additional PEG channel shall be made available within one hundred and eighty (180) calendar days following the City's written request and verification of compliance with each of the foregoing conditions. e. Whenever such additional PEG channels but not the original three (3) PEG channels, are programmed for less than ten (10) hours per day for six (6) days per week for a continuous period of not less than twelve (12) 28 a • consecutive weeks, the City may permit Company to utilize unused channel capacity on that channel under the following conditions: (i) Any request from Company to use any fallow capacity designated for PEG Access must be submitted in writing to the City. (ii) The City shall approve the request from Company to use fallow channel capacity if it finds that: (1) the utilization of the channel is as represented; (2) Company has not acted in violation of any of the provisions of the Franchise regarding utilization of the channel; and (3) there are no special circumstances which would justify the denial or delay of implementation of the use of the channel. After approval, Company may continue to utilize the channel for any other purposes it so chooses, consistent with the Franchise, until it is required to be designated for PEG purposes pursuant to the provisions hereof. (iii) Unless Company receives written notice within 0 one hundred and twenty (120) calendar days that the City disapproves Company's request, the City's approval shall be deemed granted. f. The maximum number of access channels which may be required under this Franchise shall be five (5), subject to the City's right to exchange channels, as set forth herein. On six (6) months notice to Company, City may exchange each analog PEG channel for four (4) digitally compressed channels upon satisfaction of the following conditions: (i) Company provides digitally compressed channels which offer at least as many services as are available by analog channels on the system; and (ii) Digital decompression terminal devices are installed in the homes of a least fifty percent (50 %) of Company's subscribers, and are 29 � • • used to receive Company's services; and r(iii) City provides six (6) months notice to Company. (iv) City provides written waiver of any state or federal laws pertaining to requirements for the placement of such channels. As used in this section, a "digitally compressed channel" shall mean a data stream capable of delivering video programming on a basis comparable to the delivery of other digitally compressed video programming. 3. The City shall have sole responsibility for the administration and programming of the educational and government channel(s) provided by Company, including without limitation, the carriage of programming on the channel(s) to include trafficking of tapes and playback and the establishment and administration of all rules, regulations and procedures pertaining to the use and scheduling of the programming presented over the channel(s). The channel(s) shall be used for noncommercial, governmental or educational programming. In relation to the public access channel(s), Company shall continue its current practices of providing studio facilities, equipment, trafficking of tapes, playback, for public access users in a quality and quantity generally consistent with that provided over the past franchise term. 4. Company agrees that it will work with the City in good faith and will assist the City utilize the Company's existing relationships with educational institutions to provide programming on PEG channels. 5. City and Company acknowledge that there are certain logistic and technical issues that remain unresolved as of the Effective Date due to the fact that two separate cable companies provide cable service in the City of Newport Beach and the City Hall main operation for educational and government channel(s) 30 • resides in the cable service area of another cable service provider. Company agrees to work in good faith to resolve any logistic and technical issues to ensure seamless quality and continuity of educational and governmental channel(s) access by the City's citizens including but not limited to: (a) Allowing physical playout equipment and signal to remain at Company's Rancho Santa Margarita facility or arranging for transfer of decks and racks in the City Hall area at a mutually agreeable location; (b) Ensuring that signal transmission /reception mutual exchange across cable service boundaries is accomplished; and, (c) Ensuring continuation of transmission /reception across the two cable system. B. A Grant in the amount of sixty dollars ($60.00) per Basic Service Tier subscriber ( "BST ") of Company in the City as of the Effective Date ( "Threshold is Subscribers ") shall be paid by Company to be utilized for any capital or non- capital purposes (the "Initial Grant "). Said Initial Grant shall be paid by Company within thirty (30) calendar days of the Effective Date of this Agreement. C. On January 1, 2010, the City shall provide Company with a list of newly constructed residential units which have been constructed in the City subsequent to the Effective Date, if any, (the "Construction List "). Within thirty (30) calendar days of receipt of the Construction List, Company shall determine and report in writing to the City the number of newly constructed units which are BST Subscribers as of that date (the "New Construction Subscriber List "). Company shall also report to the City the number of BST Subscribers contained in the City other than those subscribers set forth on the New Construction Subscriber List (the "Continuing Subscribers "). Within ten (10) days thereafter, Company shall pay to the City an additional grant (the "Additional 31 0„j • Grant") equal to the number of New Construction Subscribers, less the difference between Threshold Subscribers and Continuing Subscribers times $30.00 per Subscriber. D. City and Company agree that said Initial Grant and Additional Grant are neither franchise fees nor off- settable against franchise fees, irrespective of how they are expended, for the purposes of the Cable Act. City shall waive normal permit fees, but not inspection fees, for residential dwelling units, constructed subsequent to the Effective Date in new subdivisions where Company installs its cable television plant in otherwise open trenches along with other utilities at the time of new subdivision construction.. Other than the waiver of normal permit fees as provided above, Company will comply with all other City requirements. E. In the event any dedication to PEG Programming required by this i Franchise is deemed by a legislative body, administrative body, or court of competent jurisdiction to constitute a payment which must or may be offset against the franchise fee, City hereby reserves the right, but is not required to do so, to terminate said program and/or requirement so as to provide the maximum allowable franchise flee. Company shall not offset any charge, of any kind, against a franchise fee or other payment due City without prior written consent of City. Nothing in this Franchise is intended, and shall be so construed, to confer any third party beneficiary rights on any party(s), and no rights are created by this Agreement other than rights in City and Company. 6.2 Governmental and Institutional Drop Policy; Provision of Live Local Insertion Locations. A. Drops to City Facilities. Within one hundred eighty (180) calendar days of written notice provided by the 32 41 City, Company shall provide, without charge, up to four (4) cable drops, as determined by City, for all levels and all tiers of Cable Service per building, excluding premiums and pay- per -view, a cable modem drop, and cable modem service (residential speed of up to 3 mbs) per drop for those buildings, institutions and facilities on Exhibit B', plus those buildings, institutions and facilities which are constructed subsequent to the Effective Date of this Franchise Agreement, as designated by City in writing. Except for a City Hall which shall be served irrespective of distance if it is located in the Service Area, existing or future, which Company shall construct at its sole expense, drops to all buildings, institutions and facilities which are constructed subsequent to the Effective Date of this Franchise Agreement shall be limited to two hundred (250) feet from the closest point to Company's distribution system. In the event that requested drops exceed said distance, Company shall determine the incremental cost beyond said distance and the City shall pay such incremental costs to Company upon completion of construction. Company shall not impose programming or other charges for any additional outlets within said buildings. Installation and maintenance of interior wiring of said building(s) beyond the four (4) drops per building shall be the responsibility of the building owner, provided that if Company is requested to install such wiring, it will do so within a reasonable time at its actual cost of labor and materials. B. Live Insertion Locations. Within one hundred eighty (180) calendar days of written notice provided by the City, Company shall provide live insertion points at the locations set forth on Exhibit C by way of fiber connection so that the City can insert and transmit audio, video, and digital programming from said site to Company's headend for retransmission over one or more of the PEG Channels specified in Section 6.1 (collectively, the "Return Feeds"). The Return Feeds shall be constructed pursuant to technical standards mutually agreed 33 u �. upon by Company and the City (the "Design Specifications "). The City shall possess no obligation to insert programming upon the Governmental Channel pursuant to Section 6.1 until such time as the Return Feeds are constructed and activated pursuant to the Design Specifications. Within one hundred and twenty (120) calendar days of the completion and activation of the Return Feed; any playback of local government programming or insertion of audio, data or other information on the PEG channel(s) shall be the sole responsibility of the City. 6.3 Compliance with Federal Law In accepting this Franchise, the Company agrees that the commitments indicated in Sections 6.1 and 6.2 above are voluntarily entered into and shall not be charged against any Franchise Fees due the City during the term of the Franchise. The Company agrees to meet all of the commitments of Section 6.1 and 6.2 above, through the term of the Franchise. SECTION 7 MISCELLANEOUS 7.1 Rate Regulation Company will not separate out, line itemize, or surcharge the cost of the Initial Grants and the Additional Grants described in Section 9 or any other cost related to this Agreement (except the franchise fee) as a line item on City customer's cable bills. Additionally, Company shall not impose rates and charges on subscribers which are higher for like -kind services or of packages of services than those imposed upon subscribers ° in any of the cities of Mission Viejo, Laguna Hills, Tustin, Rancho Santa Margarita, and Aliso Viejo. 7.2 Reporting Requirements A. Subscriber Complaint Record. Company shall maintain a written or computerized record of Subscriber complaints, including: loss of signal requiring a field 9M i 0 visit, non- receipt of programming or services ordered, billing disputes, missed appointments, unsatisfactory performance of maintenance, malfunctioning signal traps on blocked channels, and unresolved or chronic technical problems. Such record shall also include the following information: 1. Date and time of the Subscriber complaints; 2. Account number of complainant; 3. Nature of the complaint; 4. Action(s) taken to resolve each complaint; and, 5. Dates, time(s) and specific actions(s) taken. This record shall be kept at Company's local office for a period of two (2) years. A monthly subscriber complaint record containing the information set forth above and the total number of complaints for the month shall be submitted by Company to the City within ten (10) working days following the end of each month ( "Monthly Subscriber Complaints Report"). The number of total complaints over the first year of this Franchise shall be divided by twelve (12) and constitute the "base year average monthly subscriber complaints ". To the extent that the Company maintains and provides Subscriber complaint information consistent with the above requirements, it shall be deemed to have maintained and provided sufficient Subscriber complaint information as required by this paragraph. B. Technical Statistics Report. Company shall also maintain a written or computerized record of technical statistics including: headend outages planned of unplanned, system related outages planned or unplanned, drops added or disconnected, converter boxes distributed or returned, total truck rolls including no fault found, no access to premises, referred to other, beginning monthly subs, total monthly 35 connects and disconnects and ending monthly subs ( "Technical Statistics Report"). Company shall submit the Technical Statistics Report to the City within ten (10) working days following the end of each month, upon City's written request. 7.3 Technical Standards Testing A. Company's Cable System shall be tested biannually and at any time the Monthly Subscriber Complaints Report, as defined above, provides that the monthly subscriber complaints exceeds twenty percent (20 %) of the base year average for any given two (2) consecutive months or any three (3) nonconsecutive months in any six (6) month period. Company shall bear the sole cost and expense of all testing required by this Section and all testing shall be conducted pursuant to the procedures, described in the then - applicable rules and regulations of the FCC or, if no such rules and regulations exist, in the manner prescribed in the rules and regulations in effect on the Effective Date. B. City shall have the right to participate in Company's testing and to verify that the Cable System complies with all technical standards, including but not limited to, signal strength, and other specifications of this Franchise. Upon completion of testing, the Company and City shall meet to review the performance of the Cable System. Any reports, the records of performance audits and tests, and any opinion survey reports may be utilized as the basis for review. In addition, any Subscriber may submit complaints prior to or during the review meetings, either orally or in writing, and these shall also be considered. Within thirty (30) days after the conclusion of the review meetings, City shall issue findings with respect to the adequacy of System performance and quality of service. If areas of non - compliance are found, City may direct Company to correct the non- compliance within a reasonable period of time. If material non- compliance is determined to exist or if the City's participation in the testing or retesting 36 F,1 l was based on Monthly Subscriber Complaints, Company shall reimburse City for the costs of its participation in Company's testing or retesting. 7.4 "Most Favored Nations" Review A. At any time during the term of this Agreement, City may request, and Company shall provide, information on any Cable Services not being provided in the City, which are being provided on an operational basis in systems operated by the Company, or any affiliate thereof, in the states of California, Arizona and Nevada (the "Comparison Systems "). For purposes of this section, "operational basis" means that Company has offered a Cable Service to all Subscribers in the Comparison Systems for at least six (6) months. The term "operational basis" does not include Cable Services that are offered on a trial or test basis to a limited number of subscribers. Upon City request, Company shall promptly provide City with a copy of the Franchise Agreement(s) governing all Comparison Systems (hereinafter the "Other Franchise "). B. If Company is providing Cable Services on an operational basis in any Comparison Systems, the City may require Company to provide said Cable Service(s) within one ('1) year of City's written request, and to upgrade its Cable System, if necessary, to provide such Cable Service. C. After the Effective Date of the Franchise, if Company, or any affiliate, parent, or subsidiary thereof, enters into any renewal, franchise extension, of a franchise or a new franchise to provide cable television service to any city located within Orange County or the County of Orange itself, within thirty (30) calendar days thereof, Company shall provide to the City a copy of the Other Franchise. D. In the event that City concludes that the Other Franchise contains terms, conditions or provisions regarding Public, Educational or Government access ('PEG Access ") (the "PEG Access Provision "), including, without limitation, the financial 37 }y 0 0 support thereof or Cable System Technology (i.e., channel capacity, services offered, is etc.) (hereinafter the "Technology Provision ") that are more favorable than those contained in this Franchise Agreement, then City may, at its sole discretion, require Company to provide the more favorable PEG Access Provision and the more favorable Technology Provision, or either of them; provided, however, that: (1) the City must notify Company in writing of its election to require Company to provide the more favorable provision within one hundred eighty (180) calendar days of City's receipt of the Other Franchise or City shall be deemed to have irrevocably declined to impose such requirement; and (2) any requirement imposed pursuant to this paragraph of the Franchise to incorporate the more favorable PEG Access Provision and the Technology Provision, or either of them, shall also include, upon Company's identification and request, the imposition of any and all other terms or conditions in the Other Franchise which are more favorable to Company than those contained in this Franchise (by way of example, if the Other Franchise contains a franchise fee less than the franchise fee in this Franchise or has a term longer than the term of this Franchise, then the Franchise shall be modified to include such more favorable terms at the same time that the Franchise is modified to include the more favorable PEG Access Provision or the more favorable Technology Provision). E. Company shall provide the same Cable Services to its customers in the City as it provides to customers in communities served off the same headend, as of the date of this Agreement. In the event the Company deploys new or different Cable Services as a result of a Cable System upgrade in one or more of the communities served off the same headend as of the date of this Agreement, then the Company shall deploy those new or different services within six (6) months to its customers in the City; provided, however, that the Company may request an extension for good cause and the W J? City may or may not in its discretion consent to the extension. 7.5 Restrictions Against Transfers 0 A. Unless prohibited by federal law, neither the Franchise nor any rights or obligations of the Company in or pursuant to the Franchise, or the system shall be transferred in part or as a whole, by assignment, trust, mortgage, lease, sublease, pledge or other hypothecation, and shall not be sold, transferred, leased, assigned, or disposed of in part of as a whole, either by forced sale, merger, consolidation, or otherwise, nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any person, nor shall a transfer of control of the Company or the system occur, either by act of the Company, by operation of law or otherwise, in each case without the prior written consent of the City, which consent shall not be unreasonably withheld, and which shall be expressed by resolution and then only under the conditions as may be therein prescribed. B. Company shall reimburse City for the City's reasonable processing and review expenses in connection with a transfer of the Franchise or a change in Control of the Franchise, including without limitation, the cost of administrative review, financial, legal, and technical evaluation of the proposed transferee, notice and publication costs, and document preparation expenses up to a maximum of Thirty -Five Thousand Dollars ($35,000.00). 7.6 Use of the Public Right -of -Way A. Design and construction requirements, permit and other fees, public and customers' notifications, requirements for public communication, and other oversight requirements by City imposed on Company shall be consistent, to the extent legally permissible and technically feasible, with those ongoing requirements imposed upon other users of the public rights -of -way and easements within the City. 39 10 B. The Cable System shall be constructed or installed in City only after the express written approval of City and only at such locations and in such manner, design, and size as shall be approved by City. In granting such approvals, the City shall exercise reasonable discretion in accordance with applicable law. Upon Company's written request, City staff shall meet and confer with Company in order to develop a process for expediting City processing and approval of proposed Cable System installation of multiple 'like- kind" facilities. C. The Cable System shall be placed underground or in areas where other utilities are located underground unless otherwise approved by the City Engineer. Such approval shall not be unreasonably withheld. D. All construction or maintenance work shall be conducted in a good and workmanlike manner consistent with industry standards. Installation of new facilities shall occur, whenever practical, concurrent with the installation of subdivision public improvements. E. Upon its receipt of reasonable advance notice; but in any event not less than five (5) business days, the Company shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any of its property when lawfully required by City by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the City; but, the Company shall in all cases have the right of abandonment of its property. 7.7 Construction Responsibility The Company shall be responsible for the acts and omissions of its contractors, M subcontractors and employees. Only authorized employees of the Company shall apply for and be issued necessary permits and building authorizations. Company shall designate a construction manager, who the City may contact regarding all cable construction issues. 7.8 Compliance with Construction Standards Company shall not construct any portion of its cable television system in City streets and rights -of -way without obtaining all necessary permits and paying, in addition to the franchise fee, all then applicable fees required. Company must also comply with City standards for construction in the public right -of -way. 7.9 Compliance with all Laws, City Orders and the Code A. Company shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter 0 enacted. In addition, all work prepared by Company shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements. B. Company shall promptly comply with all lawful City orders, resolutions and the Code related to Company's operation of the System, including all lawful rate orders. Failure to do so shall be considered a breach of this Franchise and shall subject Company to: (1) all liquidated damages contained in this Franchise and the Code; and (2) all other actions, remedies and penalties available to City as a result of such failure to comply. 7.10 Choice of Law This Franchise shall be construed according to the internal laws of the State of California and all federal laws of the United States. Any action brought relating thereto must be brought exclusively in the state or federal courts located in or for Orange 41 qsr County, California. 7.11 Notices Any notice required to be given by this Agreement shall be presumed given five (5) calendar days after deposit in the United States mail, properly addressed by certified mail and return receipt requested, as follows: To City: City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 With a COPY to: City Attorney City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 To Company: CoxCom, Inc. Cox Communications, Orange County 29947 Avenida de las Banderas Rancho Santa Margarita, CA 92688 Attn: Vice President, Government Affairs With a COPY to CoxCom, Inc. Attn: Director, Government Affairs 1400 Lake Hearn Drive Atlanta, GA 30319 7.12 Successors and Assigns All provisions of this Agreement shall apply to any lawful successors and assigns. 7.13 Separability If any provision of this Agreement or the application of such provision to any circumstance is rendered unconstitutional or otherwise invalid by any law, ordinance, regulation or court of competent jurisdiction, the remainder of this Agreement or the 42 ,''1 application of the provision to other circumstances, shall not be affected thereby. 7.14 Possessory Interest By accepting this Franchise, the Company acknowledges that notice is and was hereby given to Company pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property pursuant to the authorization herein may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Company shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against Company's right to possession; occupancy or use of any public property pursuant to any right of possession, occupancy or use created by this Franchise. Company shall not be barred from challenging such try on any amounts assessed pursuant thereto. 7.15 Meet and Confer Prior to exercising any rights of enforcement against Company pursuant to Section 5.44 of the Code or this Agreement, the City and Company shall reasonably attempt to meet and confer to achieve voluntary compliance. 7.16 Rights Cumulative The rights and remedies of the parties pursuant to this Franchise are cumulative, except as otherwise provided in this franchise, and shall be in addition to and not in derogation of any other rights or remedies which the parties may have with respect to the subject matter of this Franchise. 7.17 No Waiver A waiver of any right or remedy by a party at any one time shall not affect the exercise of said right or remedy or any other right or other remedy by such party at any other time. The failure of the City to take any action in the event of a material breach by 43 • • the Company shall not be construed or otherwise be deemed to constitute a waiver of the right of the City to take such action at any other time in the event that said material breach has not been cured, or with respect to any other material breach by the Company. 7.18 Declaration of Invalidity In the event that, after the Effective Date of this Franchise, any court, agency, commission, legislative body, or other authority of competent jurisdiction: (A) declares that this Franchise is invalid, in whole or in part; or (B) requires the Company either to (1) perform any act which is inconsistent with any provision of this Franchise or (2) cease performing any act required by any provision of this Franchise, City shall reasonably determine whether said declaration or requirement has a material and adverse effect on this Franchise. When the Company intends to exercise its rights pursuant to such declaration or requirement, the Company shall so notify the City Manager's Office of said declaration or requirement. If the City determines that said declaration or requirement does have a material and adverse effect on this Franchise, then Company shall then enter into good faith negotiations with the City to amend this Franchise to eliminate any inconsistency or conflict between said declaration or requirement and the provisions of this Franchise and to meet the original intent of the parties as the circumstances warrant. 7.19 Time of the Essence; Maintenance of Records In determining whether Company has substantially complied with the Franchise, the City and Company agree that time is of the essence. As a result, the Company's failure to complete construction, extend service, seek approval of transfers, or provide information in a timely manner constitute substantial breaches of material terms of the Franchise. Maintenance of records and provision of reports in accordance with the �1 � Franchise is also an essential part of this Franchise Agreement. 7.20 Force Majeure The force majeure provisions of Section 5.44,140.1. of the Newport Beach Municipal Code shall apply. 7.21 Interpretation The terms of this Franchise shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Franchise or any other rule of construction that might otherwise apply. 7.22 Exhibits Exhibits "A" through "C" are an integral part of this Agreement and these Exhibits are incorporated herein by reference. All references to this Agreement shall include all Exhibits. [SIGNATURES ON FOLLOWING PAGE] 45 0 0 • i In recognition of the obligations stated in this Franchise, the parties have executed this Franchise on the date indicated above. APPROVED AS TO FORM AND CONTENT: Robin Clauson, City Attorney For the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk EXHIBITS CITY OF NEWPORT BEACH A Municipal Corporation By: Don Webb, Mayor for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: A. Service Area Map B. Drops to Public Buildings, Institutions and Facilities C. Live Local Insertion Locations 46 il' • • EXHIBIT A COMPANY SERVICE AREA (SEE ATTACHED CITY MAP) 47 0 0 EXHIBIT B Drops to City Public Buildings, Institutions and Facilities Cox Area 1. Central Library — 1000 Avocado Avenue 2. Police Department — 870 Santa Barbara Drive 3. Fire Station 3 — 868 Santa Barbara Drive 4. Fire Station 5 /Corona del Mar Library —410 & 420 Marigold Avenue 5. Fire Station 8 — 6502 Ridge Park Road 6. Big Canyon Reservoir — 3300 Pacific View Drive 7. Oasis Senior Center — 800 Marguerite Avenue 8. Grant Howald Park /Community Youth Center - 3000 Fifth Avenue 9. Newport Coast Community Center — NPCoast Drive & San Joaquin Rd 10. Andersen Elementary — 1900 Port Seabourne Way 0 s EXHIBIT C Live Local Insertion Locations Cox Area 1. Police Department Emergency Operations Center 2. Central Library Friends Meeting Room 3. Oasis Senior Center Community Meeting Room 4. Newport Coast Community Center Meeting Room 49 0 0 I- 0 FRANCHISE EXTENSION AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND COXCOM INCORPORATED This Franchise Extension Agreement is entered into between the City of Newport Beach and CoxCom, Incorporated, dba Cox Communications Orange County ( "Cox ") this 11fh Day of January, 2002, with regards to the following facts: RECITALS WHEREAS, by approving Ordinance No. 1196 and its later amendments within Ordinances No. 1891 and 91 -42, the City of Newport Beach entered into a cable television franchise agreement ( "Franchise Agreement ") with CoxCom, Incorporated (dba Cox Communications Orange County, a wholly -owned subsidiary of Cox Communications, Inc., a Delaware Corporation.) and its predecessor companies, Dimension Cablevision and Community Cablevision, on or about December 6, 1966. The Franchise Agreement will expire on January 27, 2002; and WHEREAS, City and Cox 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: 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, reiease 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. C42-) 6 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 OF NEWPORT BEACH City Attorney CITY OF NEWPORT BEACH: F:\users\cat\shared\da\Ag\CoxFranExtAgt.doc COXCOM, INCORPORATED d /b /a/ COX COMMUNICATIONS CRANGE COUNTY 2 July 9, 1999 Ms. Lavonne Harkless City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Dear Ms. Harkless: •� � Gil �s'�fi�:�GaP Q,��r�.�r 26181 Avenida Aeropuerto San Juan Capistrano, CA 92675 1 i. e ¢ • l••j (9491248 -8828 (949) 661 -7297 fax '99 JUL 15 A10:28 Or L ,t! y c Efts <, G' r i Ti F, 1;'R T 8E � %CH Cox COMMUNICATIONS As of June 14, 1999 L joined the Orange County management team. Prior to returning to Orange County, I was the Director of Government Relations at our corporate office in Atlanta. My experience includes 20 years in the cable industry and 18 years as a City employee for the City of Oakland, the last years of which were as Director of General Services. I am a native Californian, lived in Orange County from 1979 through 1995, and pleased to be returning home. I also want to let you know about the upcoming move to our new facility. Cox Communications will be relocating as of July 17, 1999. This move will help us consolidate several widespread offices and offer better service to our customers. Our new address will be: Cox Communications, Inc. 29947 Avenida De Las Banderas Rancho Santa Margarita, CA 92688 While our existing phone number, (949) 240 -8828, can, continue to be used to reach us, including the extension numbers you may have used in the past, we will have a new telephone number and extensions. A listing of the new main telephone number and the extensions for some of our key people is attached. You are invited to visit our new facility. We plan to have an open house, which I'll advise you of at a later date. However, if you prefer, I would be pleased to arrange an individual tour at your convenience. Sincerely, to rd Lkc J. aterman Vice President, Government Relations RJW: It Enclosure Cox Communications, Inc. Effective July 19, 1999 Main number (949) 546 -2000 Address: 29947 Avenida De Las Banderas Rancho Santa Margarita, CA 92688 Key contact personnel: V.P. & General Manager — Leo Brennan Administrative Asst. — Lupe Conner V.P. Government Relations — Dick Waterman V.P. Sales & Marketing /Public Affairs — Joe Rooney Consumer Affairs Specialist — Clarissa Alvarez Public Access Coordinator — Eric Winter V.P. Operations — Karen Kranick V.P. Business Operations — Dennis Stansfield V.P. Technical Operations — Len White V.P. Business Development — Kimberly Toonen V.P. Human Resources — Sharon Smith V.P. BroadBand Residential —'Rick Guerrero V.P..BroadBand Commercial — Dave Montierth Construction Manager — Mickey Miller Telephone Fax (949) 546 -2400 (949) 546 -3400 (949) 546 -2401 (949) 546 -3401 (949) 546 -2403 (949) 546-3403 .' (949) 546 -2500 (949) 546 -3500 (949) 546 -2306 (949) 546 -3306 (949) 546 -2183 (949) 546-3183:1 (949) 546 -2305 (949) 546 - 3305'x' (949) 546 -2411 (949) 546 -3411 (949) 546 -2800 (949) 546 -3800 (949) 546 -2600 (949) 546.3600 (949) 546 -2112 (949) 546 -3112 (949) 546 -2200 (949) 546 -3200 (949) 546 -2455 (949) 546 -3455 (949) 546 -2806 (949) 546 -3806 E ox COMMUNICATION'S ij RECEIVED '99 JUL -1 A 9 :59 OFFICE OF THE CITY CLERK CITY 9F VEWPORT BEACH WE ARE RELOCATING EFFECTIVE MID JULY 1999 Our new office will be located in beautiful Rancho Santa Margarita Cox Communications 29947 Avenida De Las Banderas Rancho Santa Margarita, CA 92688 Phone (949) 546.2000 www.cox.com/oc Date ILL[ L Tq Copies Sent To; Mayor ,-E1—CounCil Member ' p Manager Torney DATE: TO: FROM: SUBJECT: Agenda Item 19 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER March 10, 1997 Honorable Mayor and Members of the City Council Peggy Ducey, Assistant to the City Manager 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 T% 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 a 4 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. June 3, 1996 . Ms. Peggy Ducey Assistant to the City Manager City of Newport . Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Peggy: Cox. Communications, Inc. 26181 Avenida Aeropuerto San Juan Capistrano, CA 92675 (714) 240 -8820 r R4�0 n C ON ± COMMUNICATIONS A few months ago we met at your office to get acquainted and to discuss Cox Communications' current plans, as well as cable television issues in general. One item that we discussed was the possibility that Cox would be relocating its office and studio from the current location in the Newport Beach area. We have been evaluating the office situation during the past few months and have reached the conclusion that relocation makes good business sense and can still provide convenient access for our customers in Newport Beach. The purpose of this letter is to request that the City of Newport Beach consent to the closure of the Cox Communications office and studio at 1071 Camelback St. in Newport Beach. Prior to closure, we would notify our customers of the change and direct them to other convenient locations. Cox serves over 200,000 customer in Orange County. In order to provide convenient access, Cox has several locations where customers can stop in to make payments or conduct other business, two of which would be convenient for Newport Beach customers. We have an office on Morse Ave. in Irvine which is only 4 miles from the office on Camelback St. For customers who normally travel south from Newport Beach, there is a payment center in downtown Laguna Beach. Customers can make payments at either location; customers who need to return or pick up equipment would need to go to the Irvine location. Although nearly all of our customers make their payments by mail, and most equipment changes are made by Cox installers at the customer's home, I think that those customers who want to visit one of our offices would find the alternate locations nearly as convenient. • i Peggy Ducey June 3, 1996 Page 2 With regard to the studio, when Community Cablevision was acquired by Cox's predecessor, Dimension Cable, in 1992, the City of Newport Beach consented to the transfer of the franchise with a condition that a production studio similar to that operated by Community Cablevision be maintained in the City. I believe the concern was that the City might no longer have the ability to get a program on the air to Cox customers. As I'm sure you are aware, any program originating at City Hall and carried on Comcast's Channel 3 is also provided to Cox customers in Newport Beach on our Channel 3. Absent a studio in the Citv, we also have the ability to take our mobile production truck to any location in our service area to videotape a program. In fact, the studio on Camelback St. has not been used by anyone except Cox staff since 1992. Any customers wishing to produce a public access program have either borrowed the equipment we provide for remote use or have used the state -of -the -art studio at Rancho Santiago College which is located at Chapman Avenue and Jamboree Road. Considering these factors, the community would continue to be well- served without the Camelback St. studio. Our building on Camelback St. is currently underutilized and, of course, we need to reduce expenses wherever possible. However, I assure you that Cox has no intention of reducing the level of service provided to our customers or to the City. The world of telecommunications is experiencing dramatic change and Cox plans to be a leader through its innovative products and excellent service. Cox Communications is recognized in the cable industry as the leader in providing, outstanding service to customers. I appreciate your consideration of this request and would like to arrange a time when we can discuss any concerns you may have and the most effective way to proceed. You can reach me at (714) 240 -8828, ext. 517. I look forward to hearing from you soon. Sincerely, A 4 Mark F. Stucky Director, Public Affairs • • DATE: TO: FROM: SUBJECT: Agenda Item CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER AUG 12 August 12, 1996 Honorable Mayor and Members of the City Council Peggy Ducey, Assistant to the City Manager Cable Franchise Transfer BACKGROUND At the July 8th meeting, the City Council considered a resolution that would have formally approved the transfer of the cable franchise agreement from Times Mirror Cable (dba Dimension Cable) to Cox Communications Orange County, Inc. The resolution would have also eliminated the requirement that Cox operate a Newport Beach office and studio site. Attachment 1 is the July 8th agenda item. The City Council continued action on the item pending a report on the status of the 1995 City audit of cable franchise fees. The letter from MRC is attached, which explains the six audit findings. Of the findings, the first issue regarding advertising revenues from separate, but affiliated companies remained unresolved. The current cable franchise ordinance defines advertising revenue as included in the franchise fee calculation, but does not specifically address revenues generated from affiliate operations. It has been the City's position that these revenues should be included in the total revenue used to calculate franchise fees. Times Mirror Cable has contended that this is a separate company and not subject to the franchise agreement regulation. To resolve this issue, Cox and City representatives have proposed that 50% of the revenue from a separate but affiliated cable companies be used to calculate gross revenues. This language is included in Section 6 of the Resolution. RECOMMENDATION Adopt resolution approving the transfer of control from Dimension Cable to Cox Communications. F s UNIC #AL November 29, 1994 Mr. Glen Everroad Revenue Manager City of Newport Beach P.O. Box 1768 Newport Beach, CA 92659 Dear Mr. Everroad: IV FINANCIAL SERVICES • We have reviewed the records supporting the Cable Franchise Fees (Fees) paid by Times Mirror Cable Television dba Dimension Cable to the City of Newport Beach for the period from August 17, 1992 through June 30, 1994. Our review consisted of obtaining copies of the franchise agreement and franchise fee remittances from the City, discussing with cable staff the methods of recording revenue and preparing payments to the City, discussing and testing the method of recording advertising revenue, obtaining records from Dimension Media Services (DMS) to determine the amount of gross advertising revenue, tracing receipts from the daily cash receipts records to the franchise fee calculations, haphazardly selecting three streets within the City and tracing an address to • records indicating the revenues are reported to the City, and testing the mathematical accuracy of the reports used to support the franchise fee payments. The results of our review are discussed below. 1. According to Dimension staff, most advertising revenue is related to DMS, and Dimension Cable receives thirty percent of DMS budget or actual advertising revenues (whichever is higher). They assert that although DMS is a related company, it is a separate legal entity. Dimension Cable has been remitting Fees to the City based on the portion received from DMS plus the advertising revenues received directly by Dimension Cable (the amount "received" by Dimension Cable). We believe the gross advertising revenue of DMS should be included in,gross receipts for purposes of the franchise fee calculations. The franchise agreement defines Gross Annual Receipts to include "advertising fees' (NBMC 5.44.010(g)(2). We reviewed two invoices for advertising revenue recorded by DMS in December 1993; both invoices indicated they were from Times Mirror Cable Television and instructed the recipient to make checks payable to Times Mirror Cable Television. See Exhibit A. 2. We noted Dimension Cable did not include advertising revenue prior to December 1, 1992 in the franchise fee calculations. We calculate an underpayment of Fees in the amount of $1,196. See Exhibit A. • 580 WEST LAMBERT ROAD, SUITE K,BREA, CA 92621 -3912 PHONE. (714) 255 -1177, FAX: (714) Tn -loss Mr. Glen Everroad Dimension Letter November 29, 1994 Page 2 a3. According to Dimension staff, their computer system is not capable of providing a detail' listing of cash receipts from customers; the computer generates a report at the end of each month, but no testable detail can be generated. The billing system prints a reconciliation of accounts receivable by revenue type by starting with beginning accounts receivable adding bills and subtracting receipts. We were able to agree the reported cash received to the billing system reconciliation for one month, but we were unable to determine the completeness of the billing system reconciliation (see #4). We recommend the City require Dimension Cable to revise its computer system or consider a revision to the franchise agreement to base the Fees on billings instead of receipts. It is our understanding most franchises are based on amounts billed. Comcast was able to provide a testable detail of their receipts. 4. According to Dimension staff, receipts of Fees should be included in revenue for the franchise fee calculations. We reviewed the billing system reconciliation for one month and noted receipts did not appear to include Fees. Dimension staff assert Franchise Fees for basic service are not billed separately, but Franchise Fees for other services are billed separately. They also assert although Fees for other services are billed separately, Fees are commingled with cash receipts for those services, but they did not provide any evidence. We estimate franchise fees to be five percent of receipts. See Exhibit A. 5. According to Dimension staff, DMS consists of two companies identified as #5075 and #5076 in the general ledger, and #5075 is the company for Newport Beach. The General Ledger Allocation reports list #5076 as the media company for Newport Beach; according to Dimension staff, the General Ledger Allocation reports are wrong, but DMS staff were not aware of the error until we brought it their attention. 6. According to Dimension staff, Dimension Cable employees receive money from the LA Times for recommending Dimension Cable customers to the paper for its cable guide, but Dimension Cable receives no revenue because it is related to the LA Times. Comcast includes revenue from LA Times in their franchise fee calculations. 'Ole estimate Dimension Cable should have received the same amount per cable customer as Comcast. See Exhibit A. In connection with these procedures, no matters came to our attention that caused us to believe that the Fees paid by Dimension Cable should be adjusted except as noted above. Had we performed additional procedures, matters not indicated above might have come to our attention and would have been reported to you. Very truly yours, %'^- cc�..• ® Michael Matsumoto, Principal Quarter 3/92 4/92 1/93 2/93 3/93 4/93 1/94 2/94 EXHIBIT A Advertising 15.5% of Under- Under- DMS G/L Fee reported reported Revenue Calculation Revenue Fees 8,145 16,290 37,857 37,857 37,857 37,857 36,601 0 518 10,870 12,985 13,794 18,127 4,955 36,601 15,221 21,380 1,069 31,980 249,065 76,470 172,595 8,630 243,331 8,145 407 15,772 789 26,987 1,349 24,872 1,244 24,063 1,203 19,730 987 31,646 1;582 Franchise Fees Estimated Under- Franchise reported Fees Fees 12,248 612 33,618 1,681 34,222 1,711 34,374 1,719 33,178 1,659 32,087 1,604 31,624 1,581 1,599 12,166 Quarter 3/92 4/92 1/93 2/93 3/93 4/93 1/94 2/94 Total Under- Late 8,872 reported Payment 444 Fees Penalties Total 1,241 560 1,801 2,914 1,129 4,043 3,504 1,146 4,650 3;407 916 4,323 3,306 706 4,012 3,035 487 3,522 3,607 396 4,003 3,112 191 3,303 24,126 5,531 29,657 L A Times Estimated Under Times report Revenue Fees 4,436 222 8,872 444 8,872 444 8,872 444• 8,872 444 8,872 444 8,872 444 8,872 444 66,540 3,330 • is • f RESOLUTION NO. 96• A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE SALE AND TRANSFER OF CONTROL OF A CABLE TELEVISION FRANCHISE GRANTED TO DIMENSION CABLE TO COX COMMUNICATIONS ORANGE COUNTY; INC., SUBJECT TO CERTAIN CONDITIONS. WHEREAS, pursuant to Chapter 5.44 of the Municipal Code, the City Council adopted Ordinance 1196 on December 6, 1966 granting to Community Cablevison Company a franchise to operate CATV service; and WHEREAS, the City Council adopted Ordinance 91 -42 on November 12, 1991 extending the franchise granted by Ordinance 1196; and WHEREAS, the City Council adopted Ordinance, 92 -63 on August 10, 1992 transferring the franchise granted by Ordinance 1196 to Times Mirror Cable (dba Dimension Cable); and WHEREAS, Dimension Cable seeks to transfer control of such franchise to Cox Communications Orange County, Inc., a California Corporation; and WHEREAS, Chapter 5.44 of the Municipal Code requires prior consent by the City Council of such transfer and then only under such conditions as may be therein presented. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach hereby consents to the sale and transfer of control of the franchise granted by Ordinance 1196 and extended by Ordinance 91 -42 to Cox Communications Orange County, Inc., subject to the following conditions: 1. Cox Communications Orange County, Inc., shall comply with all provisions of Chapter 5.44 of the Municipal Code as now written or as may be amended from time to time. 2. Cox Communications Orange County, Inc., shall comply with all provisions of the franchise granted by City of Newport Beach Ordinance 1196 adopted December 6, 1966. 3. Cox Communications Orange County, Inc., shall comply with all provisions of Ordinance 91.42 adopted November 12, 1991. 4. Cox Communications Orange County, Inc., shall provide up to twenty (20) hours per month of video production services for non - profit public, educational or government groups for the purpose of producing access programming including cameras, camera person, editing, character generation; audio mixing and other post production services necessary to complete programming. 5. Cox Communications Orange County; Inc., shall continue to dedicate Channel 3 for exclusive Newport Beach community programming unless directed otherwise by the City Manager. 6. Cox Communications Orange County, Inc. ( "Cox') shall include in gross revenue reported to the City of Newport Beach ('City') for the purpose of calculating franchise fee payments, 50% of the gross revenues received by Cox, or any affiliate of Cox, directly related to the provision of cable service to subscribers in the City including revenues received from the sale of advertising on the cable system. 7. Cox Communications Orange County, Inc., shall execute the acceptance agreement attached hereto and made a part hereof. BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach hereby confirms unto Cox Communications Orange County, Inc., a California Corporation, that with respect to the franchise granted to Dimension Cable: I . The franchise was properly granted; 2. The franchise is currently in full force and effect and expires on January 27, 2002; 3. The franchise supersedes all other agreements between the City of Newport Beach and Dimension Cable; 4. The franchise and acceptance represents the entire understanding of the City of Newport Beach and Dimension Cable, and Dimension Cable has made no commitments and owes no obligation to the City of Newport Beach other than those specifically stated in the franchise; 5. The City Council of the City of Newport Beach has not been advised of any material noncompliance by Dimension Cable under the franchise as of the date hereof; and 6. The City Council of the City of Newport Beach has not been advised as of the date hereof of any known fact or circumstance which constitutes orwhich, with the passage of time or the giving of notice or both, would constitute a default or breach under the franchise, or would allow the City of Newport Beach to cancel or terminate the rights thereunder, except upon the expiration of the full term thereof or as otherwise provided in the franchise. ADOPTED this day of , 1996. MAYOR ATTEST: CITY CLERK • • 0 ! 0 Agenda Item — OFFICE OF THE CITY MANAGER CITY OF NEWPORT BEACH DATE: July 8, 1996 TO: Honorable Mayor and Members of the City Council FROM: Peggy Ducey, Assistant to City Manager SUBJECT: Cable Franchise Transfer BACKGROUND As a result of a merger in April, 1995, Cox Communications took over cable services from Times Mirror Cable, doing business as Dimension Cable Services. Their Newport Beach service area is generally east of Jamboree and north of 5th Avenue in Corona del Mar. The Municipal Code requires Council approval of any sale or transfer of a cable television franchise. However at the time of merger, the Council did • not approve the transfer. Cox has recently requested approval to close their local office and studio at 1071 Camelback Street. Operation of a local studio was a requirement for the previous franchisee. Since this is a modification is the current operating requirements, this would be an appropriate time for Council to formally approve the transfer of ownership as well as the current operating requirements for Cox Communications. Since the transfer, the City's experience with Cox Communications has been positive. They are very responsive to City requests for public access taping and broadcasting, and promptly handle customer complaints. Given their level of service, their customer responsiveness, and their cooperative attitude of working with the City, it is recommended that the Council approve the transfer. The attached resolution has the same conditions for Cox Communications as required for Dimension Cable, except for deleting the following condition: Cox Communications shall provide and operate within the corporate boundaries of the City of Newport Beach a television production studio similar to that provided by Community Cablevision unless this requirement is specifically waved by resolution of the City Council. ! 0 Cox feels that their current Newport Beach office and studio is underutilized, • averaging only four customers per day for equipment deliveries, and only about two customers per week for in- person payments. Given this low customer usage, Cox has proposed to move office operations to their Morse Avenue office in Irvine, which is four miles from the existing Newport Beach office. Customers wanting studio services can use the Rancho Santiago College studio that Cox operates. Given the close proximity of the Irvine office and access to a studio at Rancho Santiago College, it is recommended that Council approve the operating conditions modifications for Cox Communications. RECOMMENDATION Adopt resolution approving the transfer of control from Dimension Cable to Cox Communications, including deleting the requirement to operate a Newport Beach office and studio site. • • • June 3, 1996 Ms. Peggy Ducey Assistant to the City Manager City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Peggy: ® Cox Communicatom Inc. 26181 Avenida Awopueito . I San Juan Capistrano. CA 92675 'I--- - \ 1(W T f zz 1714) 2408828 0nag�G�n.....1966a C ON COMMUNICATIONS A few months ago we met at your office to get acquainted and to discuss Cox Communications' current plans, as well as cable television issues in general. One item that we discussed was the possibility that Cox would be relocating its office and studio from the current location in the Newport Beach area We have been evaluating the office situation during the past few months and have reached the conclusion that relocation makes good business sense and can still provide convenient access for our customers in Newport Beach. The purpose of this letter is to request that the City of Newport Beach consent to the closure of the Cox Communications office and studio at 1071 Camelback St. in Newport Beach. Prior to closure, we would notify our customers of the change and direct them to other convenient locations. Cox serves over 200,000 customers in Orange County. In-order to provide convenient access, Cox has several locations where customers can stop in to make payments or conduct other business, two of which would be convenient for Newport Beach customers. We have an office on Morse Ave. in Irvine which is only 4 miles from the office on Camelback St. For customers who normally travel south from Newport Beach, there is a payment center in downtown Laguna Beach. Customers can make payments at either location; customers who need to return or pick up equipment would need to go to the Irvine location. Although nearly all of our customers make their payments by mail, and most equipment changes are made by Cox installers at the customer's home, I think that those customers who want to visit one of our offices would find the alternate locations nearly as convenient. • • Peggy Ducey June 3, 1996 Page 2 With regard to the studio, when Community Cablevision was acquired by Cox's predecessor, Dimension Cable, in 1992, the City of Newport Beach consented to the transfer of the franchise with a condition that a production studio similar to that operated by Community Cablevision be maintained in the City. I believe the concern was that the City might no longer have the ability to get a program on the air to Cox customers. As I'm sure you are aware, any program originating at City Hall and carried on Comcast's Channel 3 is also provided to Cox customers in Newport Beach on our Channel 3. Absent a studio in the City, we also have the ability to take our mobile production truck to any location in our service area to videotape a program. In fact, the studio on Camelback St. has not been used by anyone except Cox staff since 1992. Any customers wishing to produce a public access program have either borrowed the equipment we provide for remote use or have used the state -of -the -art studio at Rancho Santiago College which is located at Chapman Avenue and Jamboree Road. Considering these factors, the community would continue to be well -served without the Camelback St studio. is Our building on Camelback St. is currently underutilized and, of course, we need to • reduce expenses wherever possible. However, I assure you that Cox has no intention of reducing the level of service provided to our customers or to the City. The world of telecommunications is experiencing dramatic change and Cox plans to be a leader through its innovative products and excellent service. Cox Communications is recognized in the cable industry as the leader in providing outstanding service to customers. I appreciate your consideration of this request and would like to arrange a time when we can discuss any concerns you may have and the most effective way to proceed. You can reach me at (714) 240 -8828, ext. 517. I look forward to hearing from you soon. Sincerely, Ala Mark F. Stucky Director, Public Affairs • • JUN LI '96 05 :'55PM COX COMMUNICATIONS June 21, 1996 Ms. Peggy Ducey Assistant to the City Manager City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Peggy: :ax Camnunrcauons..*nc. 2818. 4*maa aeroouero _a' :uan v' ,st vno. CA 9281E ;:.14C40-982e CO/ COMMUNICATIONS This letter is a follow -up to our telephone discussion about the closure of Cox's office on • Camelback Street in Newport Beach. You had asked for further information about the number of Newport Beach customers who visit that office. Our customer service representatives %to work at that location maintain a log of the number of customers who come into the office and the reasons for the visit. For the three month period from March through May, 1996, on the average, we have had four customers per day come into the office to pickup or return their cable converter box. During the same period we have had approximately two customers per week come into the office to pay their bill in cash. From this data I think you can see that the level of activity just does not support an office. As mentioned in my previous letter, I believe that the customers who need to >; isit one of our offices will find our other locations to be reasonably convenient. Thank you for your help with this matter. Please let me know if you have any concerns, or if you or the councihnembers would like any additional information. Sincerely, A Mark F. Stucky Director, Public Affairs i 0 RESOLUTION NO. 96• A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE SALE AND TRANSFER OF CONTROL OF A CABLE TELEVISION FRANCHISE GRANTED TO DIMENSION CABLE • TO COX COMMUNICATIONS SUBJECT TO CERTAIN CONDITIONS. WHEREAS, pursuant to Chapter 5.44 of the Municipal Code, the City Council adopted Ordinance 1196 on December 6, 1966 granting to Community - Cablevision Company a franchise to operate CATV service; and WHEREAS, the City Council adopted Ordinance 91.42 on November 12, 1991 extending the franchise granted by Ordinance 1196; and WHEREAS, the City Council adopted Ordinance 92 -83 on August 10, 1992 transferring the franchise granted by Ordinance 1196 to Times Mirror Cable (dba Dimension Cable); and WHEREAS, Dimension Cable seeks to transfer control of such franchise to Cox Communications, a California Corporation; and WHEREAS, Chapter 5;44 of the Municipal Code requires prior Consent by the City Council of such transfer and then only under such conditions as may be therein presented. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach hereby consents to the sale and transfer of control of the franchise granted by Ordinance 1196 and extended by Ordinance 91.42 to Cox Communications subject to the following conditions: 1. Cox Communications shall comply with all provisions of Chapter 5.44 of the Municipal Code as now written or as may be amended from time to time. 2. Cox Communications shall comply with all provisions of the franchise granted by City of Newport Beach Ordinance 1196 adopted December 6, 1966. 3. Cox Communications shall comply with all provisions of Ordinance 91-42• adopted November 12,1991. 4. Cox Communications shall provide up to twenty (20) hours per month of Video production services for non -profit public, educational or government groups for the purpose of producing access programming including cameras, camera person, editing, character generation, audio mixing and other post production services necessary to complete programming. S. Cox Communications shall continue to dedicate Channel 3 for exclusive Newport Beach community programming unless directed otherwise by the City Manager. 6. Cox Communications shall execute the acceptance agreement attached hereto and made a part hereof. BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach hereby confirms unto Cox Communications, a California Corporation, that with respect to the franchise granted to Dimension Cable: 1. The franchise was property granted; 2. The franchise is currently in full force and effect and expires on January 27, 2002; 3. The franchise supersedes all other agreements between the City of Newport Beach and Dimension Cable; 4. The franchise and acceptance represents the entire understanding of the City of Newport Beach and Dimension Cable, and Dimension Cattle has made no commitments and owes no obligation to the City of Newport Beach other than those specifically stated in the franchise; S. The City Council of the City of Newport Beach has not been advised of any material noncompliance by Dimension Cable under the franchise as of the date hereof; and 6. The City Council of the City of Newport Beach has not been advised as of the date hereof of any known fact or circumstance which constitutes or which, with the passage of time or the giving of notice or both', would constitute a default or breach under the franchise, or would allow the City of Newport Beach to cancel or terminate the rights thereunder, except upon the expiration of the full term thereof or as otherwise provided in the franchise. ADOPTED this day of , 1996. MAYOR ATTEST: • CITY CLERK • JUN 21 196 05:59PN COX — UNICATIONS i . Cox. Communications, Inc. 26181 Avenida Aeropuerto Sao Juan >Ca'oistrano. CA 92875 !7141 24aH828 CON COMMUNICATIONS June 21, 1996 Ms. Peggy Ducey Assistant to the City Manager City of Newport Beach 3300 Newport Blvd. P.O. Box 3768 Newport Beach, CA 92658 -8915 Dear Peggy: This letter is a follow -up to our telephone discussion about the closure of Cox's office of) Camelback Street in Newport Beach. You had asked for further information about the number of Newport Beach customers who visit that office. Our customer service representatives who work at that location maintain a lag of the number of customers who come into the office and the reasons for the visit. For the three month period from March through May, 1996, on the average, we have had four customers per day come into the office to pickup or return their Cable converter box. During the same period we have had approximately two customers per week come into, the office to pay their bill in cash. From this data I think you can see that the level of activity just does not support an office. As mentioned in my previous letter, I believe that the customers who need to visit one of our offices will find our other locations to be reasonably convenient. Thank you for your help with this matter. Please let me know if you have any concerns, or if you or the councilmembers would like any additional information. Sincerelly,,� A r Mark F. Stucky Director, Public Affairs r. RESOLUTION NO. 96- 64 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE SALE AND TRANSFER OF CONTROL OF A CABLE TELEVISION FRANCHISE GRANTED TO DIMENSION CABLE TO COX COMMUNICATIONS ORANGE COUNTY, INC., SUBJECT TO CERTAIN CONDITIONS. WHEREAS, pursuant to Chapter 5.44 of the Municipal Code, the City Council adopted Ordinance 1196 on December 6, 1966 granting to Community Cablevision Company a franchise to operate CATV service; and WHEREAS, the City Council adopted Ordinance 91 -42 on November 12, 1991, extending the franchise granted by Ordinance 1196; and WHEREAS, the City Council adopted Ordinance 92 -83 on August 10, 1992 transferring the franchise granted by Ordinance 1196 to Times Mirror Cable (dba Dimension Cable); and WHEREAS, Dimension Cable seeks to transfer control of such franchise to Cox Communications Orange County, Inc., a California Corporation; and WHEREAS, Chapter 5.44 of the Municipal Code requires prior consent by the City Council of such transfer and then only under such conditions as may be therein presented. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach hereby consents to the sale and transfer of control of the franchise granted by Ordinance 1196 and extended by Ordinance 91 -42 to Cox Communications Orange County, Inc., subject to the following conditions: 1. Cox Communications Orange County, Inc., shall comply with all provisions of Chapter 5.44 of the Municipal Code as now written or as may be amended from time to time. 2. Cox Communications Orange County, Inc., shall comply with all provisions of the franchise granted by City of Newport Beach Ordinance 1196 adopted December 6, 1966. 3. Cox Communications Orange County, Inc., shall comply with all provisions of Ordinance 91 -42 adopted November 12, 1991. 4, Cox Communications Orange County, Inc., shall provide up to twenty (20) hours per month of video production services for non - profit public, educational or government groups for the purpose of producing access programming including cameras, camera person, editing, character generation, audio mixing and other post production services necessary to complete programming. 5. Cox Communications Orange County, Inc., shall continue to dedicate Channel 3 for exclusive Newport Beach community programming unless directed otherwise by the City Manager. 6. Cox Communications Orange County, Inc. ( "Cox ") shall include in gross revenue reported to the City of Newport Beach ( "City ") for the purpose of calculating franchise fee payments, 50 % of the gross revenues received by Cox, or any affiliate of Cox, directly related to the provision of cable service to subscribers i,a the City including revenues received from the sale of advertising on the cable system. 7. Cox Communications Orange County, Inc., shall execute the acceptance agreement attached hereto and made a part hereof. BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach hereby confirms unto Cox Communications Orange County, Inc., a California Corporation, that with respect to the franchise granted to Dimension Cable: J ' The franchise was properly granted; 2. The franchise is currently in full force and effect and expires on January 27, 2002; 3. The franchise supersedes all other agreements between the City of Newport Beach and Dimension Cable; 4. The franchise and acceptance represents the entire understanding of the City of Newport Beach and Dimension Cable, and Dimension Cable has made no commitments and owes no obligation to the City of Newport Beach other than those specifically stated in the franchise; 5. The City Council of the City of Newport Beach has not been advised of any material noncompliance by Dimension Cable under the franchise as of the date hereof; and 6. The City Council of the City of Newport Beach has not been advised as of the date hereof of any known fact or circumstance which constitutes or which, with the passage of time or the giving of notice or both, would constitute a default or breach under the franchise, or would allow the City of Newport Beach to cancel or terminate the rights thereunder, except upon the expiration of the full term thereof or as otherwise provided in the franchise. ADOPTED this _ 12th day of August , 1996. ATTEST: CITY CLERK MAYOR .i, TO: FROM: SUBJECT ACTION: 0 �_ CITY COUNCIL AGENDA ITEM NO. 5 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER AUGUST 10, 1992 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER COiNlly WTY CABI EVJSiON L i V t r 1 VW' 0; •i 1! f.. AUG 1 G 199L 4�rA/.f �?Z -43 If desired, approve change in management company from Copley- Colony to Times Mirror Cable Television and Approve Resolution 92- consenting to the sale and transfer of the Community Cablevision franchise to Times Mirror Cable Television BACKGROUND: Community Cablevision serves that area of Newport Beach generally east of Jamboree and northerly of 5th Avenue in Corona del Mar. The Municipal Code requires City Council approval of any change in the management and of any sale or transfer of a cable television franchise. A subsidiary of the Irvine Company; Community Cablevision has been using Copley- Colony to manage the franchise but now wishes to employ Times Mirror Cable Television (TMCT) as the manager and eventually to sell the franchise to TMCT. Community Cablevision seeks Council approval of these changes. ANALYSIS: TMCT is a large company serving over 1.1 million CATV subscribers of which 131,000 are in Orange County. Doing business as Dimension Cable, TMCT serves mostly the south County area including Dana Point, Laguna Beach, Laguna Hills, Laguna Niguel, Lake Forest; Mission Viejo, San Clemente; San Juan Capistrano and unincorporated areas of the County. The acquisition of Community Cablevision will add approximately 42,000 subscribers from not only Newport Beach, but also Tustin, Irvine and Orange. TMCT is headquartered in Irvine, and intends to maintain the current Community Cable facility on Camelback. r 4�L> 0 0 Page 2 TMCT has a good reputation in Orange County. Cable administrators in the cities served by TMCT were contacted, and all spoke highly of the customer service, community programming and general cooperativeness of TMCT. A comparison between rates of the two companies is attached. Staff also asked TMCT a variety of questions to ascertain their plans and the responses are attached. RECOMMENDATION: No apparent reason exists to deny the request. TMCT is a capable, experienced and well recommended cable operator. The attached Resolution includes an acceptance agreement to insure continued compliance with all terms of the franchise. Lneth 4Je li no KJ D:mb Attachments Service COMPARISON OF RATES One .Star Basic Two Star:Basic Three Star Basic Additional 'Outlet - One Star Additional Outlet -Two Star Additional Outlet - Three Star HBO Cinemax Showtime The Movie Channel The Disney Channel SportsChannel LA American Movie Classics Bravo FM .Hook -up Pay Per View Movies Installation Rates. One Star Basic Expanded (Two & Three.Star)Basic Additional Outlet w /One Star Additional Outlet w /Two or Three Star Transfer Transfer w /Additional Outlets Transfer w /Additional Boxes AB Switch AB Switch at time of install VCR Hook -up Upgrade Relocating Existing Cable FM Hook -up C, J Comm Cable Dimension Rates Rates. $ 13.50 $ 13.95 21.70 21.08 24.45 24.08' 3.40 5.00 10.30 N/A 14.80 N/A 12.9.5 10.95 12.95 8.95 12.95 9.95 12.95 8.95 8.95 7.95 9.95 N/A 4.95 N/A 4.95 N/A 2.00 5.00 4.95 4.95 $ 15.00 $ 40..00 34.95 N/ 10.00 N/A 15.00 N/A 15.00 20.00 10.00 N/A 15.00 N/A 25.00 N/A 15.00 N/A 25.00 N/A 5.00 N/A 15.00 20.00 25.00 N/A " Times Mirror Ill Cable 'relevision July 7, 1992 Mr. Kenneth J. Delino Deputy City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Dear Ken: ri ic-EIV v ED JUL 1 DEPUTY �g92® c,'rr a � 84 ron71Y tH .6 Mailing P.O. Box 1939 1999 8 Irvine, CA 92113 -9398 Times Mirror Ca61e. Television 2481 2991 Morse Ave_ Imne CA U'114-6223 714 6,611 U6g6 I appreciate your prompt response to Don McNutt's letter and your desire to move quickly on the requests to approve the management agreement and transfer of franchise. The following is our response to the initial questions contained in your July 3, 1992 letter: 1. A listing of all jurisdictions with contact persons within Orange County where Times Mirror has a current CATV franchise. The following is a listing of all franchise jurisdictions in Orange County where Times Mirror Cable Television, Inc. (TMCT) subsidiaries operate: Jurisdiction Contact Person Title Telephone County of Orange Vicki Gray Cable TV Coordinator 571 -5523 Dana Point John Donlevy Asst to City Manager 248 -9890 Laguna Beach Ken Frank City Manager 497 -0704 Laguna Hills Donald White Dir of Admin Services 707 -2600 Laguna Niguel Tim Casey City Manager 362 -4300 Lake Forest Donald Pruyn Admin Services Dir 707 -5583 Mission Viejo Danian Hopp Asst to City Manager 582 -2489 San Clemente Myrna Erway City Clerk 361 -8301 San Juan Capistrano David Bentz Dir of Admin Services 493 -1171 Mr. Kenneth J. Delino July 7, 1992 Page Two 2. A description of your proposed management structure to serve Newport Beach. For example, who will my contact be and where will he or she be located? How will subscriber complaints received at City Hall be handled? We anticipate that the management structure will continue as it currently exists except for a change in the General Manager. Mark Stucky, whom you met in our meeting on June 17th, is currently working on the transition of Community Cablevision's management at their offices on Camelback Road in Newport Beach. We plan on Mark continuing as the General Manager after TMCT formally assumes management control on August 17, 1992. Until formal change in management control, any complaints received at City Hall would be handled in the same manner as in the past, which I assume is that they were referred to Pete Eliason. After TMCT assumes management control, the same process would be followed but Mark Stucky would be the contact person. A description of Times Mirror's capabilities to produce community programming. TMCT will be continuing the current level and type of programming performed by Community Cablevision in the past. In addition, we would be able to supplement such programming from our staff and studio in San Juan Capistrano. What are the plans of Times Mirror for the Community Cablevision facility on Camelback in Newport Beach? In particular, will Times Mirror continue to maintain the studio there? The facility on Camelback in Newport Beach will continue to be utilized as the main office for the cable system and we will also continue the studio at that location. Mr. Kenneth J. Delino July 7, 1992 Page Three 5. Will Times Mirror commit to the exclusive use of Channel 3 for Newport Beach community programming? Our understanding of Section 5.44.300 (b) of the Newport Beach Municipal Code is that a common channel number is to be designated by mutual agreement between all franchisees, or in the absence of agreement, by the City Manager. We presume that Comcast and Community Cablevision have agreed on channel 3 in the past and TMCT would continue channel 3 as the community channel. 6. What are the plans of Times Mirror for complying with the rebuild and upgrade requirements of the franchise and acceptance agreement? TMCT has carefully reviewed all requirements of the Newport Beach franchise, reviewed Community Cablevision's design for the rebuild and upgrade of the system, and fully intends to meet the City's requirements. I hope the above fully answers your questions, but please contact me for any clarifications or further questions. Sincerely, R c . Waterman Director, Government Affairs RJW:it SM �F .Y AP��tr7� r U._' 7T, March 24, 1995 Mr. Ken Delino Assistant City Manager City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92663 Re: Cable Television Franchise Dear Ken: C 01-VV C oY- Times Mirror Gable Television or Orange County, Inc. 26181 Avenida Aeropuerto San Juan Capistrano, CA 92675 -4899 Administration: 714 240 -8828 Fax: 714 661 -7297 The previously approved merger of the Times Mirror cable. operations into Cox Communications, Inc. was completed on February 1, 1995. The Grantee under this franchise is Community Cablevision Company which is a wholly owned subsidiary of Times Mirror Cable Television of Orange Countv, Inc. As part of an internal corporate reorganization designed to eliminate unnecessary corporations, the corporate name "Times Mirror Cable Television of Orange County, Inc." will be changed to "Cox Cable Orange County, Inc." on or about March 31, 1995. Community Cablevision Company will be merged into Cox Cable Orange County, Inc. in the next 30 -60 days. This merger is not a transfer or change of control of the franchise. The existing corporations that constitute the Grantee are now owned 100% by Cox Communications, Inc., as a result of the Cox - Times Mirror merger referred to above. Cox Cable Orange County, Inc., will also be owned 100% by Cox Communications, Inc. Therefore, it appears that no further approval on the City's part is required. The purpose of. this letter is to notify you of the change. Times Mirror W Cable Television 0 0 once you have had the opportunity to review this letter, I would appreciate it if you would acknowledge receipt of this letter by signing the attached copy in the space provided and returning it to me in the next ten days. If you have any questions, please be sure to call. Thank you very much for your assistance. Sincerely, Mark F. Stucky Director, Public Affairs • • The City of Newport Beach hereby acknowledges receipt of this letter and notice of the merger with no change of control. Bye Title: Date: ® Times Mirror Cable Television of Orange County, Inc. 26181 Avenida Aeropuerto San Juan Capistrano, CA 92675-4899 Administration; 714 240 -8828 Fax: 714 661-7297 March 24, 1995 Mr. Ken Delino Assistant City Manager City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92663 Re: Cable Television Franchise Dear Ken: The previously approved merger of the Times Mirror cable operations into Cox Communications, Inc. was completed on February 1, 1995. The Grantee under this franchise is Community Cablevision Company which is a wholly owned subsidiary of Times Mirror Cable Television of Orange County, Inc. As part of an internal corporate reorganization designed to eliminate unnecessary corporations, the corporate name "Times Mirror Cable Television of Orange County, Inc." will be changed to "Cox Cable Orange County, Inc." on or about March 31, 1995. Community Cablevision Company will be merged into Cox Cable Orange County, Inc. in the next 30 -60 days. This merger is not a transfer or change of control of the franchise. The existing corporations that constitute the Grantee are now owned 100% by Cox Communications, Inc., as a result of the Cox -Times Mirror merger referred to above. Cox Cable Orange County, Inc., will also be owned 100% by Cox Communications, Inc. Therefore, it appears that no further approval on the City's part is required. The purpose of this letter is to notify you of the change. " Times Mirror M Cable Television' Once you have had the opportunity to review this letter, I would appreciate it if you would acknowledge receipt of this letter by signing the attached copy in the space provided and returning it to me in the next ten days. If you have any questions, please be sure to call. Thank you very much for your assistance. Sincerely, Mark F. Stucky Director, Public Affairs The City of Newport Beach hereby acknowledges receipt of this letter and notice of the merger with no change of control. By: Title: Date: 6 6 ACCEPTANCE OF CATV FRANCHISE TO THE CITY OF NEWPORT BEACH, CALIFORNIA, AND TO THE HONORABLE CITY COUNCIL OF SAID CITY: Times Mirror Cable Television of Orange County, Inc. having been identified in City Council Resolution 92 - 83 as the transferee of control of the CATV franchise granted to Community Cablevision Company by City Council Ordinance No. 1196 adopted December 6, 1966, and extended by Ordinance 91 -42 adopted November 12, 1991, hereby accepts the transfer of said franchise together with all the terms and conditions contained in: a) City of Newport Beach Municipal Code Chapter 5.44 b) City of Newport Beach Ordinance '1196 c) City of Newport Beach Ordinance 91 -42 d) The Acceptance of CATV Franchise by Community Cablevision Company dated November 15, 1991 e) City Council Resolution 92 - 83 This acceptance becomes effective on the date Times Mirror Cable Television of Orange County, Inc. acquires a controlling interest in Community Cablevision Company. Dated: August 28, 1992 Times Mirror Cable Television of Orange County, Inc. (Seal of Corporation) By: �d,,.cc,Xs�isT�?Li // James H. Smith III Title(:/ Senior Vice President, Operations By Title: Rose H. Perez, Assistant Secretary Appr 9 ed as to form: Robert H. Burnham City Attorney CERTIFICATE OF CITY CLERK I hereby certify that the foregoing Acceptance of CATV Franchise was received by me at the hour of OCR o'clock 19/22 on the _ day of l�y� -) , 1992 City Clerk Wanda E. Raggio -- -'¢ • Commf miry CabWAsion City of Newport Beach 3300 Newport Boulevard Newport Beach„ CA 92660 Attention City Clerk Gentlemen: Pursuant to Section 5':44.055 of the Newport Beach Municipal Code and Ordinance No.. 1891 of the City of Newport. Beach, Community Cablevision Company (the "Company ") is hereby notifying the City of Newport Beach of its intent to change the existing manager of its cable television system from Copley /Colony, Inc. to Times Mirror Cable Television of Orange County, Inc. The Company currently expects to enter into a Management Agreement with Times Mirror Cable Television and to replace its existing manager on August 17, 1992. Please feel free to contact the undersigned with your questions and comments. Sincerely, COMMUNITY CABLEVI MN COMPAtr By. ` �..1��1ryrr-- .... NiWtl T,M Mc-215d 3 ?ai ?}cr ": fir, € =.ger o Atorney �.� Dir. :.^ry Dir. C' R Dir. :n Fi arii Dir Chief 4 . r..Dir P.0. Box 1, Newport Beach, . California 92658 • (714) 7202268 J. Donald S. McNutt , Pre ident une 17, 1992 N iii' CERTIFIED MAIL City of Newport Beach 3300 Newport Boulevard Newport Beach„ CA 92660 Attention City Clerk Gentlemen: Pursuant to Section 5':44.055 of the Newport Beach Municipal Code and Ordinance No.. 1891 of the City of Newport. Beach, Community Cablevision Company (the "Company ") is hereby notifying the City of Newport Beach of its intent to change the existing manager of its cable television system from Copley /Colony, Inc. to Times Mirror Cable Television of Orange County, Inc. The Company currently expects to enter into a Management Agreement with Times Mirror Cable Television and to replace its existing manager on August 17, 1992. Please feel free to contact the undersigned with your questions and comments. Sincerely, COMMUNITY CABLEVI MN COMPAtr By. ` �..1��1ryrr-- .... NiWtl T,M Mc-215d 3 ?ai ?}cr ": fir, € =.ger o Atorney �.� Dir. :.^ry Dir. C' R Dir. :n Fi arii Dir Chief 4 . r..Dir P.0. Box 1, Newport Beach, . California 92658 • (714) 7202268 �� � •� t u Y�n November 25, 1991 City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92658 z�tm ..» E'Y awE C17Y COlil Aide_ . CITY OF NEWPORT BEACH SFr, 1 1991 Re:Community Cablevision Dear Mayor Sansone and all Council Members, I don't know if I missed the hearing on this issue or not, but I decided to write you this letter when I heard the cable t.v. issue was being debated by you. I moved to Harbor View Hills last year from Eastbluff and had to involuntarily switch from Comcast to Community Cablevision. I own a 122 channel cable ready T.V. and do not subscribe to H.B.O. etc. I am completely dissat&fied with Community Cable- because they force me to have a box in order to get ESPN, Prime ticket, CNN, TNT, and more!! All of these channels are included with Comcast in the basic monthly fee which is less than Community's cost!!! If I choose to have a box at $12 or so per month extra, I then can not effectively use my VCR. What prompted me to write this letter was this past weekend when I had to go to a friends house, (who has basic Comcast service with no box), to watch the USC UCLA game on Prime Ticket because my cable company does not offer it unless you pay for a box. If there is any way to open up the cable in my area to Comcast or any other cable companies, I have no doubt that everyone would change over and Community would either go out of business or immediately provide competitive service. Community Cable is getting away with gouging the consumer because they have no competition, they can do whatever they want. The owners of that company must be getting very wealthy because they are stealing from us and we have no choice but to pay them! If there is any need to publicly testify before you, please let me know, I would be happy to do so. If I missed the opportunity please do whatever you can to help bring competition to the cable in our area. Thank you, Dane Hillyard 1228 Sandpoint Way Corona Del Mar, CA 92625 cc. President, Community Cablevision I6, C3 m0tn awager fxmrney ;it.IiH.��{..(• tn�y49d Mry 1Jf•• alt. a PO!ice tat ?�he�t �',' TO: FROM: SUBJECT: ACTION: 4 AGENDA ITEM NO. 4 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER SEPTEMBER 26, 1994 MAYOR AND CITY COUNCIL ASSISTANT CITY MANAGER CABLE T.V. REGULATION Review updated material. cinF"' o� 2 6 iGn APPROVED 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. (� z) { 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 J City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 cyo!;�PO, �99��► .,199`11 Re: Request for Additional Cable Television Programming. Dear Mayor Samsone: We have been residents of Orange County since 1967 and living in Newport Beach since 1984. Our ages are 51 and 40 and we have one daughter. From the very early inception of cable television in Orange County, we have been its subscribers and supporters. n: .J ii t. is. While, in our opinion, the cable television services are today of a reasonable quality overall, it defies any explanation or logic why Newport Beach has been deprived of the programs by the spanish- speaking station from Los Angeles K M E X 34 (UHF). We live practically on the tip of Mexico (the border is less than 100 miles away) and co -habit our city with mexican or mexican - american neighbors, employers and employees, teachers and students, doctors and patients. Yet, the local cable T.V. continues to ignore this f a c t of l i f e by depriving us of the spanish- speaking full -time programming of R M E X . Ironically, this is a disservice to the city of Newport Beach and its anglo- american residents, who deserve - and have the same right as the residents of other parts of Orange County - to improve their understanding of the mexican, mexican- american and hispanic culture, traditions and ways through the media of the cable television. Our neighbors believe exactly the same. We have contacted the Community Cable officials by phone in the past, alas to no avail. Because of the recently held hearings on the renewal of the contract between the City and the cable folks, we became aware that there is a promise to expand programming. For the sake of the reality around us in Newport Beach and in Orange County, we ask that you insist that the spanish- speaking K M E X (34) be included, soon. We also ask that the T B N channel be added to the cable, to bring us relief from the daily violence of other programs. Yours very truly, d • OF ICE•T E UNE' ENT TO: Richard A. Finn and Arlene Finn []Manayce _C_A"'10F 1909 Yacht Puritan WZIe* Newport Beach, California 92660 er4 (1_A I`'rna�or�.tie"�a 4 Novemb Mayor Phil Samsone City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 cyo!;�PO, �99��► .,199`11 Re: Request for Additional Cable Television Programming. Dear Mayor Samsone: We have been residents of Orange County since 1967 and living in Newport Beach since 1984. Our ages are 51 and 40 and we have one daughter. From the very early inception of cable television in Orange County, we have been its subscribers and supporters. n: .J ii t. is. While, in our opinion, the cable television services are today of a reasonable quality overall, it defies any explanation or logic why Newport Beach has been deprived of the programs by the spanish- speaking station from Los Angeles K M E X 34 (UHF). We live practically on the tip of Mexico (the border is less than 100 miles away) and co -habit our city with mexican or mexican - american neighbors, employers and employees, teachers and students, doctors and patients. Yet, the local cable T.V. continues to ignore this f a c t of l i f e by depriving us of the spanish- speaking full -time programming of R M E X . Ironically, this is a disservice to the city of Newport Beach and its anglo- american residents, who deserve - and have the same right as the residents of other parts of Orange County - to improve their understanding of the mexican, mexican- american and hispanic culture, traditions and ways through the media of the cable television. Our neighbors believe exactly the same. We have contacted the Community Cable officials by phone in the past, alas to no avail. Because of the recently held hearings on the renewal of the contract between the City and the cable folks, we became aware that there is a promise to expand programming. For the sake of the reality around us in Newport Beach and in Orange County, we ask that you insist that the spanish- speaking K M E X (34) be included, soon. We also ask that the T B N channel be added to the cable, to bring us relief from the daily violence of other programs. Yours very truly, d • a 1 ACCEPTANCE OF CATV FRANCHISE TO THE CITY OF NEWPORT BEACH, CALIFORNIA, AND TO THE HONORABLE CITY COUNCIL OF SAID CITY: Community Cablevision Company, a wholly owned subsidiary of The Irvine Company, a Michigan Corporation, being the person identified as the Grantee in Ordinance No. 91 -42, 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 seq). Community Cablevision accepts this franchise with the understanding and acknowledgement by the City that the term "standards of the industry" whenever it appears in Ordinance 91 -15 refers to those standards set forth by the Federal Communications Commission or its successor agency. Dated: // //S S /-i / Community a Division Michigan (Seal of Corporation) Cablevision Company, of The Irvine Company, Community Cablevision App ved as to form: ity Attorney CERTIFICATE OF CITY CLERK I hereby certify that the foregoing Acceptance of CATV Franchise was received by me at the hour of �.'/d..:o'clock ,,H•!�J on the /day of 1991. City Clerk /I i • • ORDINANCE NO. 91 -42 AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING A NON-EXCLUSIVE FRANCHISE WITH COMMUNITY CABLEVISION COMPANY 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 COMMUNITY CABLEVISION Company by Ordinance No. 1196 dated December 6, 1966 and renewed by the City by Ordinance No. 1891 dated November 23, 1981. . WHEREAS the existing franchise granted to COMMUNITY CABLEVISION Company 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 COMMUNITY CABLEVISION Company 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. 1196; NOW THEREFORE the City Council of the City of Newport Beach does ordain as follows: SECTION 1. Section 1 of Ordinance No. 1196 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) 'Grantee' shall mean COMMUNITY CABLEVISION Company, 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 COMMUNITY CABLEVISION Company 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, ` popes, 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. 1196 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. 1196 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. 1196 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. 1891 is hereby repealed and all other ordinances amending Ordinance. No. 1196 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: AYES, COUNCIL MEMBERS_ HEDGES, WATT, TURNER, SANSONE, HART, COX, PUMER NOES, COUNCIL MEMBERS_ NONE ABSENT COUNCIL MEMBER: NONE MAYOR G ' 5 PUBLIC NR ICES PUBLIC NOTICES I PUBI IC NOTICES_ I PUBLIC NOTICES RESOLUTION N 105 ' A RESOLUTION OF THE CITY COUNCIL OF THE CRY 4r`EWPORT BEACH DECLARING ITS INTENTION TO AMEND AND EXTEND THE TERM OF THE FRANCHISE: GRANTED TO COMCAST CABLEVISION AND COMMUNITY CABLEVISION AND SETTING FORTH THE DATE AND PLACE FOR PERSONS HAVING ANY INTEREST THEREIN TO APPEAR BEFORE THE CRY COUNCIL. WHEREAS, the Community Cablevision Company and the ComCast Cablevision Company have non-exclusive franchises to construct, maintain, and operate a community antennae television system within the City of Newport Beach; and WHEREAS, both these franchises expire January 27, 1992; and WHEREAS, Community Cablevision and ComCast Cablevlsion have requested extensions to the terms of their franchises. NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City of Newport Beach that such extensions and other amendments to the franchises of Community Cablevision and ComCast Cablevlslon as represented by the draft ordinances attached as Exhibits A and B to this Resolution (attached hereto and hereby made a part hereol) shall be considered by the City Council on November 12, 1991 at 7:00 P.M. or soon thereafter as practical in the City Council Chambers, 3300 Newport Boulevard, Newport Beach, California. NOW, THEREFORE, BE IT FURTHER RESOLVED by the City Council that any persons having any Interest therein or any objection to the granting thereof may appear before the Council and be heard thereon at the date and time above written. BE IT FURTHER RESOLVED that the City Clerk shall publish this Resolution at least once within fifteen (15) days of the passage hereof In the official newspaper of the City. ADOPTED THIS 28th day of October, 1991. ATTEST Wanda E. Reggio City Clerk ORDINANCE NO. 91 -42 ORDINANCE NO. 91 -43 Phil Sansone Mayor AN ORDINANCE OF THE CITY OF NEWPORT BEACH AMENDING A NON - EXCLUSIVE FRANCHISE WITH COMMUNITY CABLEVISION COMPANY AND COMCAST CABLEVISION TO CONSTRUCT, MAINTAIN AND OPERATE A COMMUNITY ANTENNA TELEVISION SYSTEM WITHIN THE CRY. p RECITALS THIS ORDINANCE is made with respect to the following: WHEREAS, City desires to amend the franchise originally granted by the City to COMMUNITY CABLEVISION Company by Ordinance No. 1196 dated December 6, 1966 and renewed by the City by Ordinance No. 1891 dated November 23, 1981. WHEREAS the existing franchise granted to COMMUNITY CABLEVISION Company 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 COMMUNITY CABLEVISION Company 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. 1196; NOW THEREFORE the City Council of the City of Newport Beach does ordain as follows: SECTION 1. Section 1 of Ordinance No. 1196 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) 'Grantee' shall mean COMMUNITY CABLEVISION Company, Its employees, agents, successors and assigns. (a) 'Grantee' shall mean COMCAST Cablevision, Its employees, agents, successros and assigns. (b)'Franchlse 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 CAN 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 Cablevlslon 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 ti Mures 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: "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. N J r Ll City Council Agenda Item No. s -1 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER OCTOBER 28, 1991 TO: MAYOR AND CITY COUNCIL FROM: DEPUTY CITY MANAGER SUBJECT: CATV C (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 • I r� Kenneth J. lino F� fit; "RECEIVED AFTER AGENDA PRINTED:" :z , i CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER OCTOBER 28, 1991 TO: MAYOR AND CITY COUNCIL FROM: DEPUTY CITY MANAGER SUBJECT: CATV'RATES At the request of Mayor Sansone, the attached history of CATV subscriber rates is provided. There are several "tiers" of service and various additional fees. Both companies offer basic 12 channel service - ComCast for $11.50 per month and Community for $13.50 per month. Costs of other services such as premium channels, additional outlets, and remotes have fluctuated over the years. However, the best measure of rates is the expanded, 40 channel service received by the majority of subscribers. KJD:mb Attachment f� - Ae mo Cable TV Rates For Expanded Service (39 -41 Channels) CPI Increase 1985 $11.50 - $14.95 - - 1986 $14.00 22% $15.95 7% 2.2% 1987 $16.50 18% $16.95 6% 4.8% 1988 $16.50 0% $17.95 6% 4.•5% 1989 $19.00 15% $20.70 15% 5.1% 1990 $20.95 10% $21.70 5% 5.7% 1991 $22,53* 7.5% - 4.0% 185 -191 +$11.03 96% +$6.75 45% 29.3% * includes 5% franchise fee r , City Council Agenda Item No x -3 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER NOVEMBER 12, 1991 TO: MAYOR AND CITY COUNCIL (112)- FROM: DEPUTY CITY MANAGER SUBJECT: CATV FRANCHISES ACTION: If desired, adopt Ordinances 1 -42 nd 91 -43 amending and extending the term of the franclhises 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. r 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. KJD:mb Attachments Kenneth J. Delino April 10, 1995 Mr. Kenneth Delino Assistant City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Mr. Delino: Cox Communications, Inc. 26181 Avenida Aeropuerto San Juan Capistrano, CA 92675 (714) 240 -8828 CO/ COMMUNICATIONS With the completion of our previously- announced merger with Cox Communications, Times Mirror Cable Television, doing business in Orange County as Dimension Cable Services, has officially changed our name to Cox Communications. Our Customer Service Representatives have begun answering the telephones as Cox Communications and all of the logos are in the process of being changed. Our customers have been notified of the change by means of a bill stuffer mailing, on -air information, and newpaper advertisements. Our employees at the same location will continue to answer the same telephone numbers. I_am enclosing some information about the new company. Although the name has changed to Cox Communications, our commitment remains to provide your constituents with the best possible customer service, programming, and innovative technology. As Cox Communications, we are pleased to . introduce the following service guarantees: appointments will be kept within the appointed 4 -hour window or the installation fee will be waived; in the case of a service call, we will provide a $20.00 credit for any missed appointment. The fiber optic system upgrade, begun in 1992, will continue with completion planned for 1997. It has been a pleasure to serve you in my capacity as Vice President and General Manager of Dimension Cable, and I am looking forward to working with you in the future. Please feel free to continue to contact me or my staff if we can be of help to you in any way. Sincerely, Y Leo W. Brennan i� kF1'J1995� Vice President and General Manager Y ga fiWON/w Cox Portfolio Domestic Cable International Cable 3.1 million customers in 40 clusters 100.00% SBC CableComms (U.K.) 50.00 % 147,000 customers in TWC Cable 50.00 % STOFA (Denmark) 50.00% Telecommunications and Technology Investments Sprint Alliance 15.00% StarSight Telecast 10.20 % Teleport Communications Group 30.10 % PrimeStar Partners 10.00% PCS Southern California MTA 100.00% ICTV 28.00% Domestic Programming International Programming Discovery Communications 24.60% Discovery International 24.60 % �. E! Entertainment 10.30 % UK Gold 35.00% Viewer's Choice 20.00 % UK Living 43.80% Arizona Sports Network 100.00 %o GEMS 50.00% Hi3/3 Cox Communications, Inc. Domestic Cable 1 C 0;/1 COMMUNICATIONS Cox Communications is a fully integrated, diversified broadband communications company with interests in domestic and international cable distribution systems, programming, telephony and technology. The stock of publicly- traded Cox Communications is 79 percent owned by Cox Enterprises, Inc., a pioneer in communications technologies for nearly 100 years, and the 12th largest U.S. media company. The remaining 21 percent, valued at approximately $932 million, is held by public shareholders. Cox is the nation's fourth - largest multiple system operator (MSO), with estimated annual revenues of $1.2 billion and cable systems reaching nearly 3.2 million customers nationwide. Cox Communications` portfolio includes domestic investments such as Discovery Communications, El Entertain- ment, Viewer's Choice, and Arizona Sports Network, and international investments such as U.K. Gold, U.K. Living, BBC Europe; the Spanish - language network, GEMS, and Australian Information Media. Tallephony and teft" Cox is upgrading its distribution platforms to deliver future services with the deployment of more fiber optics, advanced system architecture and improved customer electronics. Investments include -a 30 percent interest in . competitive access provider Teleport Communications Group; an alliance with Sprint, Tele- communications, Inc.. and Comcast to develop wired and wireless telephony services for residential and business markets under the Sprint brand name; and a 10 percent interest in PRIMESTAR, a direct to the home satellite distribution company. Other technology investments include ICTV, a partner in Cox's interactive television test; Telecorp Systems, which provides automated telephone response units; and ISD, which provides integrated billing services.. CaMMItmoat to Craiumn EW amuoeis Cox has been the industry leader in providing quality customer service since 1989, when the company first established service standards. Cox was the first cable company to be fully certified for providing quality service by the. National Cable Television Assocation, and has been awarded the industry's 'Customer is Key' award five times. In addition, Cox is dedicated to improving the communities it serves through volunteering, support of non- profit organizations, and sponsorship of community events. improving education through technology is a major public service initiative that includes free cable connection and service for all schools in our franchise areas; a local employee dedicated to helping teachers use technology in the classroom; and production of a national distance learning program, Students' View, each year. Maki 7= 0 4 ACCEPTANCE OF CATV FRANCHISE TO THE CITY OF NEWPORT BEACH, CALIFORNIA, AND TO THE HONORABLE CITY COUNCIL OF SAID CITY: Times Mirror Cable Television of Orange County, Inc. having been identified in City Council Resolution 92 - 83 as the transferee of control of the CATV franchise granted to Community Cablevision Company by City Council Ordinance No. 1196 adopted December 6, 1966, and extended by Ordinance 91 -42 adopted November 12, 1991, hereby accepts the transfer of said franchise together with all the terms and conditions contained in: a) City of Newport Beach Municipal Code Chapter 5.44 b) City of Newport Beach Ordinance 1196 c) City of Newport Beach Ordinance 91 -42 d) The Acceptance of CATV Franchise by Community Cablevision Company dated November 15, 1991 e) City Council Resolution 92 - 83 This acceptance becomes effective on the date Times Mirror Cable Television of Orange County, Inc. acquires a controlling interest in Community Cablevision Company. Dated: August 28, 1992 Times Mirror Cable Television of Orange County, Inc. i (Seal of Corporation) By: ,x - James H. Smith III Title: Senior Vice President, Operations Ll By. Title: Rose H. Perez, Assistant Secretary Approed as to form: Robert H. Burnham City Attorney CERTIFICATE OF CITY CLERK I hereby certify that the foregoing Acceptance of CATV Franchise was received by me at the hour of 0C o'clock on the _ 'Stt day of�yz'�J 1992 City Clerk 1 , Wanda E. Raggio 1. RESOLUTION NO. 92- 83 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE SALE AND TRANSFER OF CONTROL OF A CABLE TELEVISION FRANCHISE GRANTED TO THE COMMUNITY CABLEVISION COMPANY TO TIMES MIRROR CABLE TELEVISION SUBJECT TO CERTAIN CONDITIONS. WHEREAS, pursuant to Chapter 5.44 of the Municipal Code, the City Council adopted Ordinance 1196 on December 6, 1966 'granting to Community Cablevision Company a franchise to operate CATV service; and WHEREAS, the City Council adopted Ordinance 91 -42 on November 12, 1991 extending the franchise granted by Ordinance 1196. WHEREAS, Community Cablevision Company seeks to transfer control of such franchise to Times Mirror Cable Television of Orange County, Inc. a California Corporation (hereinafter TMCT; and WHEREAS, Chapter 5.44 of the Municipal Code requires prior consent by the City Council of such transfer and then only under such conditions as may be therein presented. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach hereby consents to the sale and transfer of control of the franchise granted by Ordinance 1196 and extended by Ordinance 91 -42 to TMCT subject to the following conditions: 1. TMCT shall comply with all provisions of Chapter 5.44 of the Municipal Code as now written or as may be amended from time to time. 2. TMCT shall comply with all provisions of the franchise granted by City of Newport Beach Ordinance 1196 adopted December 6, 1966. 3. TMCT shall comply with all provisions of Ordinance 91 -42 adopted November 12, 1991. 4. TMCT shall provide and operate within the corporate boundaries of the City of Newport Beach a television production studio similar to that provided by Community Cablevision unless this requirement is specifically waived by resolution of the City Council 5. TMCT shall provide up to twenty (20) hours per month of video production services for non - profit public, educational or government groups for the purpose of producing access programming including cameras, camera person, editing, character generation, audio mixing and other post production services necessary to complete programming. 6. TMCT shall continue to dedicate Channel 3 for exclusive Newport Beach community programming unless directed otherwise by the City Manager. 7. TMCT shall execute the acceptance agreement attached hereto and made a part hereof. BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach hereby confirms unto Times Mirror Cable Television of Orange County, Inc„ a California Corporation, that with respect to the franchise granted to Community Cablevision Company: 1. The franchise was properly granted; 2. The franchise is currently in full force and effect and expires on January 27, 2002; 3. The franchise supersedes all other agreements between the City of Newport Beach and Community Cablevision Company; I- 6 6 4. The franchise and acceptance represents the entire understanding of the City of Newport Beach and Community Cablevision Company; and Community Cablevision Company has made no commitments and owes no obligation to the City of Newport Beach other than those specifically stated in the franchise; 5. The City Council of the City of Newport Beach has not been advised of any material noncompliance by Community Cablevision Company under the franchise as of the date hereof; and 6. The City Council of the City of Newport Beach has not been advised as of the date hereof of any known fact or circumstance which constitutes or which, with the passage of time or the giving of notice or both, would constitute a default or breach under the franchise, or would allow the City of Newport Beach to cancel or terminate the rights thereunder, except upon the expiration of the full term thereof or as otherwise provided in the franchise. ADOPTED this loth day of August 1992. ATTEST: s 1. . r— o RESOLUTION NO, 96- 64 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE SALE AND TRANSFER OF CONTROL OF A GABLE TELEVISION FRANCHISE GRANTED TO DIMENSION CABLE TO COX COMMUNICATIONS ORANGE COUNTY, INC.; SUBJECT TO CERTAIN CONDITIONS. WHEREAS, pursuant to Chapter 5.44 of the Municipal Code, the City Council adopted Ordinance 1196 on December 6, 1966 granting to Community Cablevision Company a franchise to operate CATV service; and WHEREAS, the City Council adopted Ordinance 91 -42 on November 12, 1991 extending the franchise granted by Ordinance 1196; and WHEREAS, the City Council adopted Ordinance 92 -83 on August 10, 1992 transferring the franchise granted by Ordinance 1196 to Times Mirror Cable (dba Dimension Cable); and WHEREAS, Dimension Cable seeks to transfer control of such franchise to Cox Communications Orange County, Inc., a California Corporation; and WHEREAS, Chapter 5.44 of the Municipal Code requires prior consent by the City Council of such transfer and then only under such conditions as may be therein presented. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach hereby consents to the sale and transfer of control of the franchise granted by Ordinance 1196 and extended by Ordinance 91 -42 to Cox Communications Orange County, Inc., subject to the following conditions: 1. Cox Communications Orange County, Inc., shall comply with all provisions of Chapter 5.44 of the Municipal Code as now written or as may be amended from time to time. 2. Cox Communications Orange County, Inc., shall comply with all provisions of the franchise granted by City of Newport Beach Ordinance 1196 adopted December 6, 1966. 3. Cox Communications Orange County, Inc., shall comply with all provisions of Ordinance 91 -42 adopted November 12, 1991. 4. Cox Communications Orange County, Inc., shall provide up to twenty (20) hours per month of video production services for non - profit public, educational or government groups for the purpose of producing access programming including cameras, camera person, editing, character generation, audio mixing and other post production services necessary to complete programming. 5. Cox Communications Orange County, Inc., shall continue to dedicate Channel 3 for exclusive Newport Beach community programming unless directed otherwise by the City Manager. 6. Cox Communications Orange County, Inc. ( "Cox') shall include in gross revenue reported to the City of Newport Beach ( "City ") for the purpose of calculating franchise fee payments, 50% of the gross revenues received by Cox, or any affiliate of Cox, directly related to the provision of cable service to subscribers in the City including revenues received from the sale of advertising on the cable system. 7. Cox Communications Orange County, Inc., shall execute the acceptance agreement attached hereto and made a part hereof. BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach hereby confirms unto Cox Communications Orange County, Inc., a California Corporation, that with respect to the franchise granted to Dimension Cable: 1 I . The franchise was properly granted; 2. The franchise is currently in full force and effect and expires on January 27, 2002 3. The franchise supersedes all other agreements between the City of Newport Beach and Dimension Cable; 4. The franchise and acceptance represents the entire understanding of the City of Newport Beach and Dimension Cable, and Dimension Cable has made no commitments and owes no obligation to the City of Newport Beach other than those specifically stated in the franchise; 5. The City Council of the City of Newport Beach has not been advised of any material noncompliance by Dimension Cable under the franchise as of the date hereof; and 6. The City Council of the City of Newport Beach has not been advised as of the date hereof of any known fact or circumstance which constitutes or which, with the passage of time or the giving of notice or both, would constitute a default or breach under the franchise, or would allow the City of Newport Beach to cancel or terminate the rights thereunder, except upon the expiration of the full term thereof or as otherwise provided in the franchise. ADOPTED this 12th day of 29Rst , 1996. ATTEST: vlt m CITY CLERK )0 MAYOR ACCEPTANCE OF CATV FRANCHISE TO THE CITY OF NEWPORT BEACH, CALIFORNIA, AND TO THE HONORABLE CITY COUNCIL OF SAID CITY: Cox Communications Orange County, Inc., having been identified in City Council Resolution 96 -64 as the transferee of control of the CATV franchise granted to Dimension Cable Services (a subsidiary of Times Mirror Cable Television of Orange County, Inc.) by City Council Ordinance No. 92 -83 adopted August 10, 1992, hereby accepts the transfer of said franchise together with all the terms and conditions contained in: a) Newport Beach Municipal Code Chapter 5.44 b) City of Newport Beach Ordinance 1196 c) City of Newport Beach Ordinance 91 -42 d) The Acceptance of CAN Franchise by Community Cablevision Company dated November 15, 1991 e) The Acceptance of CATV Franchise by Times- Mirror Cable Television of Orange County Inc., dated August 10, 1992 f) City Council Resolution 92 -83 g) City Council Resolution 96 -64 This acceptance becomes effective on the date Cox Communications Orange County, Inc., acquires a controlling interest in Dimension Cable Services (a subsidiary of Times - Mirror Cable Television of Orange County, Inc.) (Seal of Corporation) ApproyAd as to form: Robert H. Burnham City Attorney CERTIFICATE OF CITY CLERK Dated: 2?4 1996 Cox Communications Orange County, Inc. Leo Brennan Title: Vice President and General Manager 0 Title: I hereby certify that the foregoing acceptance of CATV Franchise was received by me at the hour of Y °1Sa ,n o'clock on the _R,51 h day of ?'ti ir'mGr r' 1996. City Clerk LaVonne M. Harkless 9 DATE: TO: FROM: SUBJECT: Agenda Item 6 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER July 8, 1996 Honorable Mayor and Members of the City Council Peggy Ducey, Assistant to City ManagerQlo- Cable Franchise Transfer' BACKGROUND As a result of a merger in April, 1995, Cox Communications took over cable services from Times Mirror Cable, doing business as Dimension Cable Services. Their Newport Beach service area is generally east of Jamboree and north of 5th Avenue in. Corona del Mar. The Municipal. Code requires Council approval of any sale or transfer of a cable television franchise. However at the time of merger, the Council did not approve the transfer. Cox has recently requested approval to close their local office and studio at 1071 Camelback Street. Operation of a local studio was a requirement for the previous franchisee. Since this is a modification in the current operating requirements, this would be an appropriate time for Council to formally approve the transfer of ownership as well as the current operating requirements for Cox Communications. Since the transfer, the City's experience with Cox Communications has been positive. They are very responsive to City requests for public access taping and broadcasting, and promptly handle customer complaints. Given their level of service, their customer responsiveness, and their cooperative attitude of working with the City, it is recommended that the Council approve the transfer. The attached resolution has the same conditions for Cox Communications as required for Dimension Cable, except for deleting the following condition: "Cox Communications shall provide and operate within the corporate boundaries of the City of Newport Beach a television production studio similar to that provided by Community Cablevision unless this requirement is specifically waved by resolution of the City Council." Cox feels that their current Newport Beach office and studio is underutilized, t averaging only four customers per day for equipment deliveries, and only about two customers per week for in- person payments. Given this low customer usage, Cox has proposed to move office operations to their Morse Avenue office in Irvine, which is four miles from the existing Newport Beach office. Customers wanting studio services can use the Rancho Santiago College studio that Cox operates. Given the close proximity of the Irvine office and access to a studio at Rancho Santiago College, it is recommended that Council approve the operating conditions modifications for Cox Communications. RECOMMENDATION Adopt resolution approving the transfer of control from Dimension Cable to Cox Communications, including deleting the requirement to operate a Newport Beach office and studio site. E 0 • June 3, 1996 Ms. Peggy Ducey Assistant to the City Manager City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Peggy: Cox Communications. Inc. 261111 Avenida Aeropuerto San Juan Capistrano. CA 92675 G.D 17141240 -8828 s Np are / CO/ COMMUNICATIONS A few months ago we met at your office to get acquainted and to discuss Cox Communications' current plans, as well as cable television issues in general. One item that we discussed was the possibility that Cox would be relocating its office and studio from the current location in the Newport Beach area. We have been evaluating the office situation during the past few months and have reached the conclusion that relocation makes good business sense and can still provide convenient access for our customers in Newport Beach. The purpose of this letter is to request that the City of Newport Beach consent to the closure of the Cox Communications office and studio at 1071 Camelback St. in Newport Beach. Prior to closure, we would notify our customers of the change and direct them to other convenient locations. Cox serves over 200,000 customers in Orange County. In-order to provide convenient access, Cox has several locations where customers can stop in to make payments or conduct other business, two of which would be convenient for Newport Beach customers. We have an office on Morse Ave. in Irvine which is only 4 miles from the office on Camelback St. For customers who normally travel south from Newport Beach, there is a payment center in downtown Laguna Beach. Customers can make payments at either location; customers who need to return or pick up equipment would need to go to the Irvine location. Although nearly all of our customers make their payments by mail, and most equipment changes are made by Cox installers at the customer's home, I think that those customers who want to visit one of our offices would find the alternate locations nearly as convenient. 11 Peggy Ducey June 3, 1996 Page 2 With regard to the studio, when Community Cablevision was acquired by Cox's predecessor, Dimension Cable, in 1992, the City of Newport Beach consented to the transfer of the franchise with a condition that a production studio similar to that operated by Community Cablevision be maintained in the City. I believe the concern was that the City might no longer have the ability to get a program on the air to Cox customers. As I'm sure you are aware, any program originating at City Hall and carried on Comcast's Channel is also provided to Cox customers in Newport Beach on our, Channel 3. Absent a studio in the City, we also have the ability to take our mobile production truck to any location in our service area to videotape a program. In fact, the studio on Camelback St. has not been used by anyone except Cox staff since 1992. Any customers wishing to produce a public access program have either borrowed the equipment we provide for remote use or have used the state -of- the -art studio at Rancho Santiago College which is located at Chapman Avenue and Jamboree Road. Considering these factors, the community would continue to be well -served without the Camelback St. studio. Our building on Camelback St. is currently underutilized and, of course, we need to reduce expenses wherever possible. However, I assure you that Cox has no intention of reducing the level of service provided to our customers or to the City. The world of telecommunications is experiencing dramatic change and Cox plans to be a leader through its innovative products and excellent service. Cox Communications is recognized in the cable industry as the leader in providing outstanding service to customers. I appreciate your consideration of this request and would like to arrange a time when we can discuss any concerns you may have and the most effective way to proceed. You can reach me at (714) 240 -8828, ext. 517. I look forward to hearing from you soon. Sincerely, Ald Mark F. Stucky Director, Public Affairs r1 t`J 1�J JUNG 1 *96 05 :59PM COX aOMMUMICATIONS June 21, 1996 Ms. Peggy Ducey Assistant to the City Manager City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Peggy: Cot'imiunicalions, Inc. 2618' Acenioc A -raNefto ,,.-..,.uan Ca ;isYpnD. CA ?267E Coy, COMMUNICATIONS • This letter is a follow -up to our telephone discussion about the closure of Cox's office on Camelback Street in Newport Beach. You had asked for further information about the number of Newport Beach customers who visit that office. Our customer service representatives who work at that location; maintain a loz of the number of customers who come into the office and the reasons for the visit. For the &.ree month period from March through May, 1996, on the average, we have had four Customers per day come into the office to pickup or return their cable converter box. During the same period we have had approximately two customers per week come into the office to pay their bill in cash. From this data I think you can see that the level of activity just does not support an office. As mentioned in my previous letter, I believe that the customers who need to \ isit one of our offices will find our other locations to be reasonably convenient. Thank you for your help with this matter. Please let me know if you have airy concerns, or if you or the councilmembers would like any additional information. Sincerely,11U6 Mark F. Stucky Director, Public Affairs RESOLUTION NO. 96- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CONSENTING TO THE SALE AND TRANSFER OF CONTROL OF A CABLE TELEVISION FRANCHISE GRANTED TO DIMENSION CABLE TO COX COMMUNICATIONS SUBJECT TO CERTAIN CONDITIONS. WHEREAS, pursuant to Chapter 5.44 of the Municipal Code, the City Council adopted Ordinance 1196 on December 6, 1966 granting to Community Cablevision Company a franchise to operate CAN service; and WHEREAS, the City Council adopted Ordinance 91 -42 on November 12, 1991 extending the franchise granted by Ordinance 1196; and WHEREAS, the City Council adopted Ordinance 92 -83 on August 10, 1992 transferring the franchise granted by Ordinance 1196 to Times Mirror Cable (oba Dimension Cable); and WHEREAS, Dimension Cable seeks to transfer control of such franchise to Cox Communications, a California Corporation; and WHEREAS, Chapter 5.44 of the Municipal Code requires prior consent by the City Council of such transfer and then only under such conditions as may be therein presented. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach hereby consents to the sale and transfer of control of the franchise granted by Ordinance 1196 and extended by Ordinance 91 -42 to Cox Communications subject to the following conditions: 1. Cox Communications shall comply with all provisions. of Chapter 5.44 of the Municipal Code as now written or as may be amended from time to time, 2. Cox Communications shall comply with all provisions of the franchise granted by City of Newport Beach Ordinance 1196 adopted December 6, 1966. • 3. Cox Communications shall comply with all provisions of Ordinance 91.42 adopted November 12; 1991, 4. Cox Communications shall provide up to twenty (20) hours per month of video production services for non - profit public, educational or government groups for the purpose of producing access programming including cameras, camera person, editing, character generation, audio mixing and other post production services necessary to complete programming. 5. Cox Communications shall continue to dedicate Channel 3 for exclusive Newport Beach community programming unless directed otherwise by the City Manager. 6. Cox Communications shall execute the acceptance agreement attached hereto and made a part hereof. BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach hereby confirms unto Cox Communications, a California Corporations that with respect to the franchise granted to Dimension Cable: 1. The franchise was properly granted; 2. The franchise is currently in full force and effect and expires on January 27,2002; 3. The franchise supersedes all other agreements between the City of Newport Beach and Dimension Cable; 10 • 4. The franchise and acceptance represents the entire understanding of the City of Newport Beach and Dimension Cable, and Dimension Cable ,has made no commitments and owes no obligation to the City of Newport Beach other than those specifically stated in the franchise; 5. The City Council of the City of Newport Beach has not been advised of any material noncompliance by Dimension Cable under the franchise as of the date hereof; and 6. The City Council of the City of Newport Beach has not been advised as of the date hereof of any known fact or circumstance which constitutes or which, with the passage of time or the giving of notice or both, would constitute a default or breach under the franchise, or would allow the City of' Newport Beach to cancel or terminate the rights thereunder, except upon the expiration of the full term thereof or as otherwise provided in the franchise. ADOPTED this ATTEST: CITY CLERK day of , 1996. MAYOR ACCEPTANCE OF CATV FRANCHISE TO THE CITY OF NEWPORT BEACH, CALIFORNIA, AND TO THE HONORABLE CITY COUNCIL OF SAID CITY: Cox Communications, Inc., having been identified in City Council Resolution 96-_ as the transferee of control of the CATV franchise granted to Dimension Cable Services (a subsidiary of Times Mirror Cable Television of Orange County, Inc.) by City Council Ordinance No. 92 -83 adopted August 10, 1992, hereby accepts the transfer of said franchise together with.. all the terms and conditions contained in:. a) Newport Beach Municipal Code,Chapter5.44 b) City of Newport Beach Ordinance 1196 c) City of Newport . Beach Ordinance 91 -42 d) The Acceptance of CATV Franchise by Community Cablevision Company dated November 15, 1991 e) The Acceptance. of CATV Franchise by Times- Mirror Cable Television of Orange County Inc.; dated August 10, 1992 f) City Council Resolution 92 -83 g) City Council Resolution 96- This acceptance becomes effective on the date Cox Communications, Inc., acquires a controlling interest in Dimension Cable Services (a subsidiary of Times - Mirror Cable Television of Orange County; Inc.) (Seal of Corporation) Approved as to form: Robert H. Burnham City Attorney Dated: Cox Communications, Inc. By: Title: By: Title: CERTIFICATE OF CITY CLERK I hereby certify that the foregoing acceptance of CATV Franchise was received by me at the hour of o''clock. on the day of , 1996, City Clerk LaVonne M. Harkless r C 11 r� r E CABLE T.V. FRANCHISES CITY Anaheim Brea Buena Park Costa Mesa Cypress Dana Point Fountain Valley Fullerton Garden Grove Huntington Beach Irvine Laguna Beach Laguna Niguel La. Habra La Palma Los Alamitos Mission Viejo TERM 15 Years 15 Years 15 Years Indefinite 15 Years 15 Years 15 Years w/5 yr. extension 20 Years 15 Years Public Cable TV Authority (PCTV) 15 Years 15 Years 15 Years 15 Years 15 Years 15 Years 15 Years 15 Years 0 BEGIN /EXPIRE 1979 - 1994 1990 - 2005 1981 - 1996 1984 1991 1984 - 1999 1987 - 2002 1980 - 1995 1980 - 2000 1982 - 1997 Until 2004 1977 - 1992 1989 - 2004 1980 - 2000 1980 - 1995 1991 - 2006 1987 - 2002 1982 - 1997 1987 - 2002 • • 0 0 Page 2 CITY TERM BEGIN /EXPIRE Orange 15 Years 1979 - 1994 w /10 yr. renewal Placentia 15 Years 1984 - 1999 San Clemente 15 Years 1987 - 2002 San Juan Capistrano 25 Years 1968 - 1993 Santa Ana 15 Years 1982 - 1997 w/5 yr. extension Seal Beach 15 Years 1982 - 1997 Stanton Public Cable TV Until 2004 Authority (PCTV) Tustin 15 Years 1988 - 2003 15 Years 1986 - 2001 Villa Park 15 Years 1981 - 1996 Westminster PCTV Until 2004 Yorba Linda 10 Years 1991 - 2001 C-n!"IrtTl /y x713 7G OFFYCE OFT COMES SENT TO: nc I U�Cilm2� ❑mar,ager ; 9thcr Q N11 �9 t4, 7 C-I_VL [ okh (14-1 CA-Adz IrY UA- OFFICE OF THJ K�A'70R 0 L'. -/ 0--o:�4v_- _L_Z CMU SENT TO: Pik r I Tc District Kirsten H. Garwood, Student Trustee CHANCELLOR Alfred P. Fernandez. Ph.D. District Administration: 1370 Adams Avenue, Costa Mesa, California 92626 October 14, 1991 Honorable Phil Sansone Mayor of the City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Dear Mayor Sansone: As Chancellor of the Coast Community College District, I would like to endorse Comcast Cablevision's proposed 20 -year Master Lease for provision of cable casting services to the City of Newport Beach. It is our belief should Comcast obtain the 20 -year master lease, the number of channels available to residents of Newport Beach would be increased permitting viewing of the educational channel the Coast District now operates in Costa Mesa, Huntington Beach, Westminster, Garden Grove, and Fountain Valley. The Coast District cablecasts Monday through Thursday, 6:00 a.m. to 10:00 p.m., and Friday, Saturday, and Sunday, 8:00 a.m. to 4 :30p.m., from our state of the art cable station in Fountain Valley. Programming includes telecourses for college credit, local productions produced by Orange Coast and Coastline Community Colleges and other programs of educational interest produced by other educational organizations. Daily character generated updates on registrations, community service activities, and cultural and performing arts events are also cablecast about., the colleges in the District. Enclosed is a sample broadcast schedule for fall 1991: Thank you. JSincerely, Alfred P. Fernandez, Ph.D. Chancellor 0 FFICE0 T." AF /ch Enclosure cc: City Councit Members ORANGE COAST COLLEGE GOLDEN WEST COLLEGE, COASTLINE. COMMUNITY COLLEGE, KOCE -TV i EC vEd OCT 11 I991 CffYCLERK NEWFORl OF aj i 4`Y /S 4325660 H Human Resources ( (714) 432 -5620 , • Coast s ty E � 7 BOARD OF TRUSTEES .. Sherry L. Baum Community College Paul G. Berger Walter G. Howald. Nancy A. Pollard _ - Armando R. Ru,z District Kirsten H. Garwood, Student Trustee CHANCELLOR Alfred P. Fernandez. Ph.D. District Administration: 1370 Adams Avenue, Costa Mesa, California 92626 October 14, 1991 Honorable Phil Sansone Mayor of the City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Dear Mayor Sansone: As Chancellor of the Coast Community College District, I would like to endorse Comcast Cablevision's proposed 20 -year Master Lease for provision of cable casting services to the City of Newport Beach. It is our belief should Comcast obtain the 20 -year master lease, the number of channels available to residents of Newport Beach would be increased permitting viewing of the educational channel the Coast District now operates in Costa Mesa, Huntington Beach, Westminster, Garden Grove, and Fountain Valley. The Coast District cablecasts Monday through Thursday, 6:00 a.m. to 10:00 p.m., and Friday, Saturday, and Sunday, 8:00 a.m. to 4 :30p.m., from our state of the art cable station in Fountain Valley. Programming includes telecourses for college credit, local productions produced by Orange Coast and Coastline Community Colleges and other programs of educational interest produced by other educational organizations. Daily character generated updates on registrations, community service activities, and cultural and performing arts events are also cablecast about., the colleges in the District. Enclosed is a sample broadcast schedule for fall 1991: Thank you. JSincerely, Alfred P. Fernandez, Ph.D. Chancellor 0 FFICE0 T." AF /ch Enclosure cc: City Councit Members ORANGE COAST COLLEGE GOLDEN WEST COLLEGE, COASTLINE. COMMUNITY COLLEGE, KOCE -TV i EC vEd OCT 11 I991 CffYCLERK NEWFORl OF aj i 4`Y /S (71a) 432 -5707 Business Affairs j714) 432 -5745 Inlormalion Services (714) 4325665 Public (714) 432.5012 i2 char'.1W 1714) 432 -$813 Legal Services (714) 432 -5623 Purchzsno. (714) 4325750 •J Education Services (714) 4325184 Facs .::a (714) 432 5177 4325660 H Human Resources ( (714) 432 -5620 , Phys¢c FaC11: eS Pfa ng ( board of Trustees ( (714) 4 , P - - -- - .... ..........: COASTLINE OC KIsITY COLLEGE BROADCAST START DATE: 419/41.. • CABLE CHANNELS — BROADCAST SCHEDULE SFMBSTER: Fall 1991 TODA%"S DATE. lunay Y b SUI3DAYS WEEKDAYS /SA`lURDA DATES: I FRIDAY SATURDAY SUNDAY - _ :,QnxmenaY THURSDAY 6:30 A.n. ��•�..__ Intro to 7:00 A.M. 4C�dGro 7:30 6.M. Develo. M. 9 :30 A.M. Biolo i. Chin se Brush 10:00 A.H. Paint' U BI Cj• DT, PUB 11:00 A.M. Business 11:30 A.M. Writin Business C t NOON Law I I Intro to ` 12:30'P.M• Business'' intro to 1:00 P.H. Statistics PUB y 1:324• 2:00 P.H. 2.30 P.H. Humanities Western Civ 3:00 P.H. to 1550 13 o to can Intro to n-- - -` Goverment anent j'' Ps cholo Ghd Growth U.S. History ory L876 Develo eat to 1876 ? History Marriage 6 U.S. Histol Since 1871 ce 18761 Tamil Ern Astronom Intro to nav i's ( $ociolo cultural j Human kics Anthro 010 Brnlaqv intro to :r0 to Biolo Statistics :fetics shaud Chinese Brush Freehand 5getchln tchin `. Paintin ors 4_ o ANNOUNCiMENT human Business Arr NNbU O Business S anish I wish - I Writ £ nroanizat] to A5,CS 11ne Coastline .In Lead In r„ ;uituralj) thro: 010 Health !; ultural � thvo 010 Health ?' . History Intro to nce 1876 Astronom History Intro to 1876 Astronom 1' t .nee stern Civ intro to to 1550 Statisticalf, stern Civ Intro to 1550 Stags' to Bus'nesa Hums n Writin !. ECOlO human Business 3 Bus Owneran�P Mana ement Bus Ownershipt+ Hanavement 1:-� TIMES COASTLINE OOMMUNITY COLLEGE BROADCAST START rATE: 9j9/9I TODAY'S DATE: June 25, 1991 CABLE CHANNELS —,BROADCAST SCHEDULE WEEKDAYS/ SATURDAY & SUNRAY SEMESTER: Fall 1991 Man ement Marine Child Growt Marine Child GrwC ri�Cmble 4:00 P.M. Science I Develoomencil Science .t Development �i aeitS: vied DATES: Marriage & Marriage & 4:30 P.M.. cArrmnev SUNDAY TIMES MONDAY TU=Vftx 1.1 UOQJUr.a _...,.•,•••.•_ Intro to -- - - - - -- of lMin Organizatio 3 :30 P.M. Intro to Health Sociology Health Saciolo Man ement Marine Child Growt Marine Child GrwC ri�Cmble 4:00 P.M. Science I Develoomencil Science .t Development �i aeitS: vied Marriage & Marriage & 4:30 P.M.. Astronomy Family AatronomZ Family i t 5:00 P.M. PUBLICrANNJOJUNCEMENT {/.`} Q� 7ti� �c {,1 v!•C'_. Ci>o.5f- WoLfr. E'U.» (A6F' 5:30 P.H. PUBLIC ANNOUNCEMENT Freehand Freehand 6:00 P.M. Sketchi r Humanities Sketching ! Humanities' Chinese Brush Western Civ Chinese Brush Western Civ 6:30 P.M. Paintia to 1550 —.-Painting to 1550 IQ Organizatio Intro to Organizatto Intro to 7:00 P.H. Msas errant Astronom Man ement Astronow [ Marine Marine 7:30 P.H. S apish i Science Spanish I Science 1� U.S. History Intro to U.S. History Intro to 8 :00 P.M. to 1876 a Biolo ''. to 1876 Biolosy American Business American Business 8:30 P.M. Government ' Writin 1l Government Writin 9 :00 P.M. Ethics Business Law I Ecolo Business Law I U.S. History 2 U.S. History 1876��I 9:30 P.M. Ethics / Since 187613 Ecolo Sinee 1A �j���tAr f m7 1�' Lir'tj' Meet-.", a en !/� s e a�vl I f�/fJ 6az � YT Yf /nuyz UA 3,_.. } r RECEIVED U C1 g� ti. 1ZLW1t/t7- &,fC11 C/9 9 63 _ r r0-f A&f TA/G-__ /%c/ O/-- h(EQG -'- GY✓ iris', _/!c7✓�!?T__ �ci/id /n/St/G�I . - -- - - -- _ --- - /IST'°'�ON�ii.Gr `7�tr B�QO�iFr- �C�- ••�dE- .u- �^- rtE.- �..,.b9,p _ mss..._.- �'z�o� �tJ - 3G1' =� _..s�- .✓ �._../��r,. `` dJirgE reD _ Rxz _rq?!1'744) ,B6-AlrZ y e _a/c ec /sus /. za TTt� E`x7z --v,T oF, :r7- �✓ .rinlG- �✓ 7f� d 2pru. ,C. L7 . _ rl' � (XJI v & ^b 7-, s .70 .. 4cd9r/T- _ R7. y ?�f�'�I _ �e'. /� /•JG. QPE��'.5u �J . TfJE"- Bo�pd/syc� WiYS' ivr__ _ 1, v Fd2 S/� � �t'E h' FO/2, 7nlAA. .._ 7a K _. %✓ li��KCF3 *!EZ?E /pzcar 7V ttS6 /T 9eC_ F�Ty G 0A1-< o 7rO t�-3-60`°t` 777E 77 l ,4 /C oN 1-17(67 4:9 E6V ;0?10s. IVV'A/ /7- IWC-,V 7V /:ape T s 7 CDluTi�UG . �- ! ) 1107- e,/4A,7- T sc Avyr`/O E Jet �t ✓G N�.2r-/ Cs�cZ /fYGG /y S`J/nE /GCa2E�✓ r F�22 4'Lc- fkEcv�l�Gls/f�� cY I' rycVC4 � 5rq-1x-A!:5 A-Jo 71) 4,576 7f/c acv9,e0 //1tiC . ZT AS 7bbbbe ��fCe C ®NSIOC /fTdh/ TIJ�iT MS _- _:/ -�� r-lt�•�srl�__._. I, >�?vc�BEa2-- _wr�iv_�r w.as' _.. _ �°igy /��- �%✓c'72.__ ��.: _,�sr- r� _disc- _c�acc -_ � aE. _ _. sEhCT .. ,oil2rcr"c_y-- _7�fed.U�� /Yy C _/1E71�j!. _7�?�l/is /_o.✓.: _- _ - _ -.. _.!./UO QoX__02— �2?/?O/ 7�. >.. _._.T.__Asc / /o•✓?-.�✓U�_ tPZC_ /oTlf�?? __ _ _ _.. _ ..___ S Vic E3 /Of? aDT- r.��E-- s738[E. ,AT___lfic _ JF_/� lfuT, mew. - - 6j 4W#4729- !7 I7 ?Q ffT _.(lam C OirJE.. U/�!✓ �:._ -- - IVY .._.�� j z5 _,1� .. /nlFys _9�ce�n/G_ G✓iT�f-- /ybtO�N6 !� FUGL T /rVi �_ 7z54ITiyE_ iT/d^!,.. Z L /KV7 'ri a'' TiIE /3E` A60417- e0ft- ' 77hA7: vd sra,✓os �-re- �__-z' h`itcC� ff � T?J_ si�-_G.bt.+'•�l. �iyl$,PTA�✓T SCJ�TE'GTS .Z- !¢/t✓<-,. Orscd -5560 AAJO vbT�s TH&- oL/ way !°as�iete) TN6 r 7 "RECEIVED AFTER AGENDA PRINTED :" 1 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER OCTOBER 28, 1991 TO: MAYOR AND CITY COUNCIL FROM: DEPUTY CITY MANAGER SUBJECT: CATV RATES At the request of Mayor Sansone, the attached history of CATV subscriber rates is provided. There are several "tiers" of service and various additional fees. Both companies offer basic 12 channel service - ComCast for $11,50 per month and Community for $13.50 per month. Costs of other services such as premium channels, additional outlets, and remotes have fluctuated over the years.. However, the best measure of rates is the expanded, 40 channel service received by the majority of subscribers. KID:mb Attachment i - Ae mo r Cable TV Rates For Expanded Service (39 -41 Channels) Year ComCast Increase Community Increase CPI Increase' (LA -ANA) 1985 $11.50 - $14.95 - - • 1986 $14.00 22% $15.95 70 2.2% 1987 $16.50 18% $16.95 6% 4.8% 1988 $16.50 0% $17.95 6% 4.5% ' 1989 $19.00 15% $20.70 15% 5.1% 1990 $20.95 1.0% $21.7.0 5% 5.7% 1991 $22.53* 7.5% 4:0% '85 -'91 +$11.0:3 96% +$6.75 4.5% 29.3% * includes 5% franchise fee J Comcast Cablevision "RECEIVED AFTER AGENDA 1000 E. Santa Ana Boulevard rr Z Suite 220 PRINTED_ Santa Ana, CA 92701 714 285- ..2000 C October 23, 1991 The Honorable Phil Sansone Mayor City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Dear Mayor Sansone: C,,) 'w y L G � I would again like to askthat you support Staff's recommendation to extend the Newport Beach Franchise term to twenty years. This becomes a win, win, win situation for our customers, the City of Newport Beach and Comcast. A recent subscriber survey shows a tremendous interest by our subscribers in Comcast adding new cable channels. By providing a longer term extension, Comcast can invest the capital required to rebuild the system to 54 channels. This will also provide the City of Newport Beach Fire Department with a channel for training, as well as equipment to help produce its own training program. This ultimately provides for a better prepared Fire Department and cuts cost to the City. There has also been numerous requests by the educational community to get its own channel for K -12 as well as college courses. By upgrading the cable system, Comcast can better provide this type of programming. I appreciate your consideration in this very important matter and as always, look forward to your ongoing support: Thank you again. Best Regards, David Barford 4 Vice President and General Manager RECEIVED Comcast Cablevision of Orange County OCT 28 1991 Gtir rr! Epy, 01,% DB :bap N WPM ggrq I Ah „,U C1VLU nFrEa ac €N�+n ,...t - VEWPORT MESA Unified School District post office box 1368 • newport beach, california 92663 • (714) 760 -3200 October 24, 1991 JOHN W. NICOLL, Sbperintende t The Honorable Phil Sansone Mayor of Newport Beach City Hall 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 - 8915 Dear Mayor ne P This letter is to advise the City Council that the members of the Board of Education of Newport - Mesa Unified School District unanimously appreciate and support the efforts of trustee Jim de Boom regarding expansion of cable television service to the schools. Sincerelv. Sherry Loofbou President, Board A Celebration of Public Education Making A Difference For A Lifetime c E RESOLUTION NO. 91 -105 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO AMEND AND EXTEND THE TERM OF THE FRANCHISES GRANTED TO COMCAST CABLEVISION AND COMMUNITY CABLEVISION AND SETTING FORTH THE DATE AND PLACE FOR PERSONS HAVING ANY INTEREST THEREIN TO APPEAR BEFORE THE CITY COUNCIL. WHEREAS, the Community Cablevision Company and the ComCast Cablevision Company have non - exclusive franchises to construct, maintain, and operate a community antennae television system within the City of Newport Beach; and WHEREAS, both these franchises expire January 27, 1992; and WHEREAS, Community Cablevision and ComCast Cablevision have requested extensions to the terms of their franchises. NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City of Newport Beach that such extensions and other amendments to the franchises of Community Cablevision and ComCast Cablevision as represented by the draft ordinances attached as Exhibits A and B to this Resolution (attached hereto and hereby made a part hereof) shall be considered by the City Council on November 12, 1991 at 7:00 P.M. or soon thereafter as practical in the City Council Chambers, 3300 Newport Boulevard, Newport Beach, California, NOW, THEREFORE, BE IT FURTHER RESOLVED by the City Council that any persons having any interest therein or any objection to the granting thereof may appear before the Council and be heard thereon at the date and time above written. BE IT FURTHER RESOLVED that the City Clerk shall publish this Resolution at least once within fifteen (1.5) days of the passage hereof in the official newspaper of the City. ADOPTED THIS 28th day of October 1991. ATTEST W M ORDINANCE NO. 9 -1- 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 5.44.02 0 Franchise to Operate 5.44.030 Application for Franchise 5.44.033 Franchise Renewal 5.44.036 Application Fee 5.44.040 Duration of Franchise 5.44.050 Sale and Transfer 5.44.055 Approval of New Management Company 5.44.060 Limitations of Franchise 5.44.070 Rights Reserved to City 5.44.080 Surety Bonds 5.44.090 Protection of City Against Liability 5.44.100 Inspection of Property and Records 5.44.110 Rules and Regulations 5.44.120 Franchise Payment 5.44.130 Uses Permitted 5.44.140 Location of Grantee's Properties 5.44.150 Removal or Abandonment of Property of Grantee 5.44.160 Failure to Perform Street Work 5.44.170 Operational Standards 5.44.180 Technological Developments 5.44.190 System Compatibility and Connectability 5.44.200 Maintenance of Services 5.44.210 Subscriber Service office 5.44.220 Subscriber Service Procedures 5.44.230 Revealing Subscriber Lists 5.44.240 Regulation of Rates 5.44.250 Locking Devices to 'Permit Exercise of Parental Discretion 5.44.300 Public, Educational and Governmental Services 5.44.400 Miscellaneous Provisions 5.44.410 Effect of Annexations 5.44.420 Violations 5.44.430 Penalties 5.44.010 Definitions. For the purpose of this Chapter, the following terms, phrases, words and their derivatives shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. mandatory and not merely directory. 1 The word "shall" is always To the extent any conflict exists between these definitions and the definitions as set forth in other ordinances, these definitions will control. (a) The term "City" shall mean the City of Newport Beach in its present incorporated form or in any later recognized, consolidated, enlarged or reincorporated form. (b') The term "Council" shall mean the present governing body of the City, or any future board constituting the legislative body of the City. (c) The term "Person" shall mean any individual, firm, partnership, association, corporation, company or organization of any kind. (d) The term "Grantee" shall mean the person, firm or corporation to whom or which a franchise under this chapter is granted by the Council, and the lawful successor or assignee of said person, firm or corporation. (e) The term "Community Antenna Television System" or "CATV System" shall mean a system employing antennae, microwave, wires, wave guides, coaxial cables or other conductors, equipment or facilities designed, constructed or used for any or all of the following purposes: (1) collecting or amplifying local and distant broadcast television, satellite, microwave or radio signals and distributing and transmitting them; (2) transmitting original cable cast programming not received through television broadcast signals; (3) transmitting television pictures and video tape programs not received through broadcast television signals, whether or not encoded or processed to permit reception by only selected receivers; (4) transmitting or receiving two -way signals or transmissions; (5) providing data transfer capability in any shape or form, including that of a security system or a common carrier should CATV Systems ever be so defined by Federal rule or regulation; 2 (6) transmitting or receiving all, other signals whether digital, voice or audio visual. (f) The terms "Subscribers" or "Users" shall mean any person(s) or entity(ies) receiving, for any purpose, any service of the Grantee's community antenna television'system, including, but not limited to, the conventional cable television system service or re- transmission of television broadcast, satellite, microwave or radio signals, Grantee's original cablecasting, local government, education and public access channel cablecasting and other services such as leasing of channels, data and facsimile transmission and police, fire and similar public service communications. (g) The term "Gross Annual Receipts" shall mean any and all compensation and other consideration, in any form whatsoever, and any contributing grant or subsidy received directly or indirectly from the operation of the CATV system within the City of Newport Beach by Grantee from: (1) subscribers or users in payment for any CATV system services including television broadcast, satellite, microwave, or FM radio signals, reception or service received within the City or transmitted in any shape or form, from the City, for which local subscribers or users make payment, whether said signals, reception or service is included within basic service, expanded basic service, premium service, or pay- per -view service, as well as any installation or line extension charges therefor; (2) advertising fees; (3) any other compensation for utilization of or connection to the cable system of Grantee used within the City including the sale, rental or provision of any equipment, parts or add -ons to be used in connection with the CATV System; (4) notwithstanding the above, Gross Annual Receipts shall not include any taxes on services furnished by the Grantee and imposed directly or indirectly on any subscribers or users by any City, State or other governmental 3 unit or third party and collected by the Grantee on behalf of such entity. (h) The term "Franchise Area" shall, mean the territory within the City throughout which Grantee shall be authorized to construct, maintain and operate its system and shall include any enlargements thereof and additions thereto. (i) The term "Primary Franchise Area" shall mean the territory within the City throughout which Grantee shall be authorized to construct, maintain and operate its system and within which Grantee shall have an affirmative obligation to serve all applicants under Section 5.44.400(b) of this Chapter. 5.44.020 Franchise to Operate. A franchise to construct, operate, manage and maintain a community antenna television system within all or any portion of the incorporated area of the City of Newport Beach may be granted by the Council to any person, firm or corporation, whether operating under an existing franchise or not, offering to furnish, and actively manage and operate such system pursuant to the terms and provision of this chapter. Such a franchise shall, not be granted to any holding company or other entity not actively engaged in the operation of a CATV System; and the City reserves the right to grant a similar franchise to any person at any time. No provision of this chapter may be construed as to require the granting of a franchise when in the opinion of the Council it is in the public interest to restrict the number of Grantees to one or more or to refrain from granting any franchise at that time. 5.44.030 Application for Franchise. Application for a new franchise hereunder shall be filed with the City Clerk in a form approved by the City and shall contain the following information: (a) The name and address of applicant. (b) A general description of 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 constitute and form a part of the franchise as granted. (h) Prior to the granting of a franchise or a franchise renewal pursuant to this Chapter, the Council shall pass a resolution declaring its intention to grant the same, stating the name of the proposed Grantee, the character of the franchise and the terms and conditions upon which it is proposed to be granted. Such resolution shall fix and set forth the day, hour and place when and where any persons having any interest therein or any objection to the granting thereof may appear before the Council and be heard thereon. It shall direct the City Clerk to publish said resolution at least once within fifteen (15) days of the passage thereof in the official newspaper 5 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 conclusive. Thereafter it may by ordinance grant the franchise on the terms and conditions specified in the resolution of intention to grant same, subject to the right of referendum of the people, or it may deny the same. 'If the Council shall determine that changes should be made in the terms and conditions upon which the franchise is proposed to be granted,, a new resolution of intention shall be adopted and like proceedings had thereon. 5.44.033 Franchise Renewal. Any franchise granted under this Chapter is - renewable at the application in writing of the Grantee, its lawful successors or assignee for such period of time as the Council and the applicant may agree upon by negotiation. 5.44.036 Application Fee. Each application for a new franchise or a renewal shall be accompanied by an application fee in the sum of One Thousand Dollars ($1,000.00), which shall be used by the City to cover the costs of studying, investigating and processing such application. 5.44.040 Duration of Franchise. Any franchise, granted by the City Council pursuant to this Chapter, shall be for a term of not less than ten (10) years nor more than twenty -five (25) years following the date of acceptance of such franchise by the Grantee or renewal thereof, Any such franchise may be terminated prior to its date of expiration by the City Council in the event that said Council shall have found, that (a) the Grantee has failed to comply with any material provision of this Chapter, or has, by act or omission, violated any material term or condition of its franchise or permit issued under this Chapter; or (b) any provision of this Chapter has become invalid or unenforceable, and the Council further finds that such provision constitutes a consideration material to the grant of said franchise; or (c) the City acquires the CATV property of Grantee. 5.44.050 sale and Transfer. Any such franchise shall be a privilege to be held in trust by the original Grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, merger, consolidation or otherwise, without prior consent of the Council expressed by resolution, and then only under such conditions as may be therein prescribed. The proposed assignee must show financial responsibility, must demonstrate capability to operate successfully and must agree to comply with all provisions of this Chapter. No such consent shall be required for a transfer in trust', mortgage or other hypothecation as a whole, to secure an indebtedness. 5.44.055 Approval of New Management Company. Grantee shall not enter into any contract for the management of the cable system by a third party without prior consent of the Council by resolution which consent shall not unreasonably be withheld. Grantee shall notify City at least sixty days prior to any change in the managing entity including, but not limited to, changes resulting from an assignment of a management contract, the purchase of or change in control of the managing entity or the termination of or non- renewal of a management contract. The City Council shall approve or disapprove of such change within sixty (60) days of such notice unless extended by mutual consent of Grantor and Grantee. If the City Council fails to act within the prescribed time, such consent shall be deemed to have been granted. Grantee shall not enter into any contract for the management of the cable system by a third party in which Grantee relinquishes control, authority or responsibility for ultimate compliance with the terms of any franchise granted pursuant to this Chapter or in which Grantee relinquishes control, authority or responsibility for decision- making involving the capital budget, annual business plan, subscriber rate adjustments or replacement or termination of employment of key personnel. Grantee shall not enter into any contract for the management of the cable system by a third party unless such third party is experienced in the operation of cable systems, is financially sound, has technical expertise in cable television operations and is qualified to be a cable operator by generally 7 acceptable and reasonable industry standards. 5.44.060 Limitation of Franchise. • A. No privilege or exemption shall be granted or conferred by a franchise granted pursuant to this chapter except those specifically prescribed herein. B. The Grantee is subject to all requirements of the ordinances, rules, regulations, fees and specification of the City heretofore or hereafter enacted or reestablished, including, but not limited to, those concerning street work, street excavation, use, removal, and relocation of property within a street, and other street work. C. All transmission and distribution structures, lines and equipment of the Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places.. D. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Grantee shall, at its own cost and expense and in a manner approved by the Public Works Department of the City, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in as good condition as before said work was commenced and shall maintain the restoration in an approved condition for the duration of the franchise. E. The Grantee shall upon adequate and reasonable notice, at its expense, protect, support, temporarily disconnect, relocate or remove from any public street, alley or other public way, any property of the Grantee when required by the Director of Public works of the City by reason of traffic conditions, public . safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or any other E structures or public improvements; provided, however, the Grantee shall in all cases have the privileges and be subject to the obligations to abandon any property of the Grantee in place, as provided in section 5.44.150 hereof. F. Time shall be of the essence of any such franchise granted. The Grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this Chapter by failure of the City to enforce prompt compliance. G. Any right or power in, or duty impressed upon any officer, employee, department or board of the City shall be subject to transfer by the City to any other officer, employee, department or board of the City. H. The Grantee shall have no recourse whatsoever against the City for any loss, cost, expense or damage arising out of" any provisions or requirements of this Chapter or its enforcement to the extent permitted by applicable law. I. Any such franchise granted shall not relieve the Grantee of any obligation involved in obtaining pole space from any 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 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. 5.44.090 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 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 C Hundred Thousand Dollars ($100,000), renewable annually, and conditioned upon the faithful performance of Grantee, and upon the further condition that in the event Grantee shall fail to comply with any one or more of the provisions of this Chapter or of the franchise issued to the Grantee hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the City as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Grantee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond, said condition to be a continuing obligation for the duration of such franchise or any renewal thereof, and thereafter until the Grantee has liquidated all of its obligations with the City that may have arisen from the acceptance of said franchise by the Grantee or from its exercise of any privilege therein granted. The bond shall provide that thirty (30) days prior written notice of intention not to renew, cancellation, or material change, be given to the City. Neither the provisions of this section, nor any bond accepted by the City pursuant thereto, nor any damage recovered by the City thereunder, shall be constructed to excuse faithful performance by the Grantee or limit the liability of the Grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise. B. Bond For Protection Of Subscribers. The Grantee shall, concurrently with the filing of an acceptance of a franchise granted under this chapter, file with the City Clerk and shall thereafter during the entire term of such franchise maintain in full force and effect a corporate surety bond or other adequate surety agreement in a form approved by the City Attorney in the amount of Fifty Thousand Dollars ($50,000), conditioned that in the event such Grantee shall fail to comply with any provision of this Chapter, term or condition of its franchise, or any provision of any agreement or undertaking made between Grantee and any 11 subscriber, then there shall be recoverable jointly and severally from the principal and surety any damages or costs suffered or incurred by any subscriber as a result thereof, including reasonable attorneys' fees and costs of any action or proceeding; and said condition shall be. a continuing obligation during the entire term of such franchise and thereafter until Grantee shall have satisfied in Full any and all obligations to any subscriber which arise out of or pertain,to any such agreement or undertaking. 5.44.090 Protection of City Against Liability. A. Indemnification. The Grantee shall indemnify and hold harmless the City, its officers, boards, commissions, agents and employees against and from any and all claims, demands, actions; suits, liabilities, and judgments of every kind and nature and regardless of the merit of the same, arising out of or related to the exercise or enjoyment of any CATV franchise granted pursuant to the provisions of this Chapter, including claims, demands, actions, suits, liabilities and judgments based upon any infringement or violation or alleged violation of any copyright; and Grantee shall reimburse the City for any costs and expenses incurred by City in defending against any such claim or demand or action, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expense, travel and living expense; and�.Grantee shall upon demand of the City appear in and defend any ' and all suits, actions or other legal proceedings whether judicial, quasi- judicial, administrative or otherwise, brought by third persons or duly constituted authorities against or affecting the City, its officers, boards, commissions, agents or employees and arising out of or related to the exercise or enjoyment of such franchise, or the granting thereof' by the City; the foregoing obligation shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other security required hereunder; provided that neither Grantee nor City shall make or enter into any compromise or settlement of any claim, demand, action or suit without first giving the other ten (10) days prior 12 written notice of its intentions to do so. • B. Comprehensive Liability Insurance. Upon acceptance of such franchise the Grantee shall file with the City Clerk and shall thereafter during the entire term ,of'such franchise maintain in full force and effect, at its own expense, a general comprehensive liability insurance policy or policies which shall insure Grantee and .provide: primary coverage for the City, its officers, boards, commissions, agents and employees, against liability for loss or liability for personal injury, death, property damage, and copyright infringement occasioned by any activity or operation of Grantee under such franchise. Such policy or policies shall be issued by a company approved by the City Manager and shall be in form approved by the City Attorney, with minimum combined single limits of liability coverage in the amount of one Million Dollars ($1,000,000) . The policy or policies shall name the City, its officers, boards, commissions, agents and employees, an additional insured and shall contain a provision that a written notice of any cancellation, modification or reduction in coverage of said policy shall be delivered to the City Clerk thirty (30) days in advance of the effective date thereof. No franchise granted under this Chapter shall be effective unless and until each of the foregoing certificates of insurance as required in this subsection has been delivered to the City Clerk. 5.44.100 Inspection of Property and Records. A. At all reasonable times, and for purposes reasonably related to this chapter the Grantee shall permit any duly authorized representative of the City to examine all property of the Grantee, together with any appurtenant property of the Grantee situated within or without the City, and to examine and transcribe, subject to applicable law, any and all maps and other records kept or maintained by the Grantee or under its control which deal with the operations, affairs, transactions or property of the Grantee with respect thereto. If any of such maps or records are not kept in the City, or upon reasonable request, made available in the City, and if the City Manager shall determine that an examination 13 thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the Grantee. B. The Grantee shall prepare and furnish to the City Manager and /or the Director of 'Finance at the times and in the form prescribed by either of said officers, such reports with respect to its operations, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City or any of its officers in connection with the - franchise. 5.44.110 Rules and Regulations. A. The City Council is authorized to amend this Chapter to adopt additional rules and regulations governing the operation of CATV systems in the City and such rules and regulations shall apply to and shall govern the operations of the Grantee of any franchise granted pursuant to this Chapter. B. The City Manager of the City of Newport Beach is hereby authorized and empowered to adjust, settle, or compromise any controversy or charge arising from the operations of any Grantee under this Chapter, either on behalf of the City, the Grantee, or any subscriber, in the best interest of the public. Either the Grantee or any member of the public who may be dissatisfied with the decision of the City Manager may appeal the matter to the Council for hearing and determination. The Council may accept, reject or modify the decision of the City Manager, and the Council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any Grantee or from any provisions of this Chapter. C. Any controversy between Grantor and Grantee involving the construction or application of any of the terms, covenants, or conditions of this Chapter, shall, on written request of one party served on the other, be submitted to arbitration, and such, arbitrations shall comply with and be governed by the provisions of the California Arbitration Act, Section 1280 through 1294.2 of the California Code of Civil Procedure. 14 5.44.120 Franchise Payments. A. Acceptance Fee. The Grantee of any new or expanded primary franchise area granted pursuant to this Chapter shall pay to the City upon acceptance of such franchise a fee certain in an amount to be determined or approved by the City Council. B. Annual Franchise Fee. The Grantee of any franchise under this Chapter shall pay quarterly to the City during the life of such franchise a fixed percentage of the gross receipts of the Grantee derived from within the City. Such percentage shall be at least three percent (3 %) and shall be established by the City Council for the life of the franchise by specifying such percentage in the ordinance granting the franchise. Payment shall be due to the City forty -five (45) days after the expiration of each calendar quarter. The Grantee shall file with the City, within ninety (90) days after the expiration of any fiscal year during which such franchise in force, a financial statement prepared by a certified public accountant showing in detail the gross annual receipts, as defined herein, of Grantee, its successors and assigns, during the preceding fiscal year. In the event that the above payment is not received by the City within the specified time, Grantee shall pay to the City a penalty of one and one -half percent (1.550t) 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 performance of any obligation thereunder. 5.4.4.130 Uses Permitted. Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the Grantee to engage in the business of operating and providing a CATV system in the City of Newport Beach and for that purpose to erect, install, construct, operate, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public highway, street, alley, public way or public place, such poles, wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate and provide similar facilities on properties rented or leased from other persons, firms or corporations including, but not limited to, a public utility or other Grantee franchised or permitted to do business in the City of Newport Beach. The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable it to exercise its rights and perform its obligations under the franchise, and to insure an uninterrupted services to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or of the laws of the City of Newport Beach, the State of California of the United States of America. The Grantee shall have authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee, all trimming to be done under the supervision and direction of the City and at the expense of Grantee. 5.44.140 Location of Grantee's Properties. A. Any poles, wires, cable lines, conduits, or other properties of the Grantee to be constructed or installed in streets, alleys or other public places shall be so constructed or installed only at such locations and in such manner as shall be 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 cost to the City of Newport Beach. D. It is the additional policy of the City to limit the number and control the location of above ground CATV apparatus used in conjunction with underground cables consistent with the technical requirements for providing high quality CATV service. Grantees shall place all newly installed passive electronic apparatus such as taps, directional couplers and similar equipment in underground or flush mounted vaults. Grantees shall place all other apparatus in underground or flush mounted vaults whenever technologically and economically feasible. The Grantee shall coordinate with all affected property owners to locate all newly installed above ground apparatus to minimize inconvenience and disruption to residents. Any disputes or controversy between Grantees and property owners shall be resolved as provided in Section 5.44.110 of this chapter. Grantees also shall implement a program to retrofit or relocate such above ground apparatus upon the request of a property owner or subscriber but in no event shall Grantee be required to expend funds for this program in any one calendar year in excess of three percent (3 %) of the amount paid by Grantee in franchise fees for the previous calendar year. 17 5.44.150 Removal or Abandonment of Property of Grantee. A. In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of three (3:) months, or in the event such system or property has been installed in any street, alley or public place without complying with the requirements of its franchise or ordinance, or the franchise has been terminated, canceled or has expired, the Grantee shall promptly, upon being given thirty (30) days notice, remove from the streets, alleys or public places all such property and poles of such system other than any which the Director of Public Works may permit to be abandoned in such place. In the event of any such removal, the Grantee shall promptly restore the street, alley or other area from which such property has been removed, to a condition satisfactory to the Director of Public Works. B. Any property of the Grantee remaining in place ninety (90) days after the termination of the franchise shall be considered permanently abandoned. C. Any property of the Grantee to be abandoned in place shall be abandoned in such manner as the Director of Public Works' shall prescribe. Upon permanent abandonment of the property of the Grantee in place, the property shall become that of the City, and the Grantee shall submit to the City Council an instrument, to be approved by the City Attorney, transferring to the City the ownership of such property. 5.44.160 Failure to Perform Street Work. Upon failure of the Grantee to commence, pursue, or complete any work required by law or by the provisions of this Chapter or by its franchise to be done in any street, alley or other public places within the time prescribed, and to the satisfaction of the Director of Public Works, the City Manager may at his option cause such work to be done and the Grantee shall pay to the City the cost thereof in the itemized amounts reported by the City Manager to the Grantee within ten (10) days after receipt of such itemized report. 5.44.170 Operational Standards. The CATV system shall be installed and maintained in accordance with the highest and best E accepted standards of the industry to the effect that subscribers shall receive the highest possible service. 5.44.180 Technological Developments. A. It is the desire of the City that all CATV systems franchised to operate within the City shall maintain, operate and where feasible, modify the CATV system to ensure its performance in accordance with the highest and best accepted standards of the industry. B. Whenever the Grantee, in consultation with the City„ has determined that it is financially and technically feasible and appropriate within the context of local needs and demands, the Grantee shall provide technical improvements and modifications to ensure the operation of the CATV system in accordance with the highest and best accepted standards of the industry. Such improvements and modifications shall include, but not necessarily be limited to: 1. continued availability and enhancement of national or international, transmission capabilities via communications satellites; 2. enhancement and expansion of system channel capacity and programming; 3. improvement of public access and local programming capabilities; 4. maintenance and improvement of systems 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 0 1. whether there exists a reasonable subscriber demand for the proposed improvements or modifications; 2. whether the technology associated with the proposed improvements or modifications has been tested and proven reliable 3. whether the Grantee is financially and technically able to provide the proposed improvements or modifications; 4. whether the provision of the proposed improvements or modifications will allow the Grantee a reasonable return on its investment in such proposed improvements or modifications. D. In implementing the provisions of this Section, the City may, from time to time, request, and the Grantee shall provide, information relative to the feasibility or appropriateness of implementing specific system improvements or modifications deemed desirable by the City but Grantee shall not be required to incorporate technological developments into the CATV system which do not meet the provisions of Section 5.44.180(c) above. E. The Grantee shall provide the City with written notification of any major system improvements or modifications proposed for implementation within its respective franchise area. 5.44.190 system Compatibility and Connectability. A. It is the desire of the City that all CATV systems franchised to operate within the City shall be compatible and interconnectable with one another to provide simultaneous cable casts on the Community Channel. B. Within the Primary Franchise Area served, the Grantee shall negotiate the construction, operation and modification of its system to interconnect same with all other systems within the City for the purpose of sharing locally originated public and education programming. 5.44.200 Maintenance of Services. The Grantee shall, for the purposes of maintaining efficient and high quality service to CATV subscribers and excepting circumstances beyond the control of 20 the Grantee, comply with the following general regulations: (a) Grantee shall schedule major planned service interruptions during periods of minimum use of the system and shall notify subscribers of planned service interruptions via announcements transmitted on the Community Channel at least twenty- four (24) hours in advance; but in no event shall the requirement for notice delay the repair of degraded system operation. (b) Grantee shall maintain a toll free telephone number or numbers within the City, in good working order to provide prompt service to subscribers. Grantee shall provide telephone recorded announcement capability to announce system -wide service disruptions during the times when such disruptions occur. (c) Grantee shall, without charge, provide all subscriber services of its system to all public school buildings, City police and fire stations, City recreation centers and such other buildings owned or controlled by the City as the City Manager shall designate. Except however, that Grantee shall not be required to provide those premium and pay -per -view services to any building which would not otherwise be eligible to receive such services under the terms of Grantee's contracts with service affiliates. Such service shall consist of a drop connection to the exterior of the building or property involved and a connection to the interior of the building or property to .a television ;set if desired. (d) Grantee shall, upon the written request of the City Manager or designee, test, analyze, and report on the performance of a particular element or elements of the CATV system to resolve problems identified by excessive complaints or other evidence which, in the judgment of the City Manager, warrants a technical investigation to ensure that high quality CATV service is maintained. Grantee shall conduct the requested test or tests and furnish a written report to the City Manager no later than thirty (30) days after the Grantee has been formally requested to perform the subject test or tests. Such a report or reports shall P41 contain the following information: the nature of the event or events which precipitated the special test or tests; what system component or components were tested; the equipment used and procedures employed in said testing; the results of such tests; and the method in which any complaints were finally resolved. 5.44.210 subscriber service Office. The Grantee shall at all times during the term of a franchise granted pursuant to this Chapter maintain and operate an office located within the Primary Franchise Area to serve subscribers. Such office shall serve to receive subscriber payments, adjust subscriber billings, schedule maintenance and installation calls, dispense auxiliary equipment such as remote controls and converter boxes, order or delete subscriber services and provide all manner of services provided to subscribers by the Grantee. The location of this office shall be printed on all :subscriber statements of payment due. The office shall maintain regular business hours and such extended service hours as necessary to serve the needs of subscribers. 5.44.220 Subscriber service Procedures. A. Grantee shall insure that the toll free telephone number or numbers which are provided within the City, pursuant to this Chapter, are capable of the timely receipt of subscriber complaints on a twenty -four (24) hour, seven -day week basis. B. The Grantee shall, within twenty -four (24) hours fallowing the date of receipt of a subscriber complaint, take one of the following actions: 1. Correct the problem; 2. Determine the problem cannot be corrected within twenty -four (24) hours and schedule a service call to take place within forty -eight (48`) hours or on a mutually acceptable date; 3. Determine the problem is not cable - related and so inform the subscriber. C. Grantee shall maintain a written record listing the date and time of subscriber complaints, identifying the subscriber by name and residence address, and describing the nature of the 22 complaint as well as the nature and date of its resolution. The subject record is to be maintained at the Grantee's local office for a period of one (1,) year from the date of the complaint and is to be available for inspection during regular business hours by the City Manager or his designee subject to applicable law. D. The following remedies and penalties for inadequate or untimely service to subscribers of system installation delays are hereby established: 1. In the event that its service to any subscriber is interrupted for more than twenty -four (24) consecutive hours except for acts of God or other circumstances beyond Grantee's control and outside the system and except in circumstances for which prior approval of the interruption is obtained from the City Manager, Grantee shall provide a ten percent (10 %) rebate of the monthly fees to affected subscribers unless waived by subscriber. 2. In the event that its service to any subscriber is interrupted for more than forty -eight (48) or more consecutive hours, except for acts of God or other circumstances beyond Grantee's control and outside the system, and except in circumstances for which the prior approval of the interruption is obtained from the City Manager, Grantee shall provide a twenty percent (20 %) rebate of the monthly fees to affected subscribers unless waived by subscriber. 3. In the event that the system fails to meet any operational standards as defined in Section 5.44.170 for a full three (3) month period, Grantee shall reduce all subscribers' fees by twenty -five percent (25 %) until all performance standards are met, provided that the City Manager has noticed the Grantee in writing of its alleged non- compliance and the Grantee has failed within ninety (90) days to cure such non - compliance. E. If not satisfied with the Grantee's response to a service problem, a subscriber may file a written complaint with the City. The City Manager or designee shall resolve the problem 23 r pursuant to Section 5.44.010. F. If a subscriber files a complaint with the City regarding a service problem which is continual and persistent and which is determined to be preventable and within Grantee's control, and if the Grantee fails to correct the problem within a reasonable period of time, following written notice of the complaint by the City, the City may levy a penalty as provided for in Section 5.44.430 of this Chapter. 5.44,230 Revealing Subscriber Lists. The Grantee shall not reveal, or sell, or permit the release or sale of its subscriber list without the prior written consent of the subscriber; provided that Grantee may use its subscriber list as necessary for the construction, marketing, and maintenance of the Grantee's services and facilities authorized by a franchise, and the concomitant billing of subscribers for said services; and further, provided that consistent with applicable law, Grantor may use Grantee's subscribers list for the purpose of communication with subscribers in connection with matters relating to enforcement of this Chapter. 5.44.240 Regulation of Rates. The City Council shall review and approve all rates and charges for CATV services to the extent permitted by applicable state or federal statutes or regulations in effect or enacted at any time during the term of a franchise granted pursuant to this chapter. The Grantee shall provide the City with thirty (30) days prior written notification of any new rates or charges within its franchise area. 5.44.250 Locking Devices to Permit Exercise of Parental Discretion. Grantee shall make available to its subscribers, upon request and for a reasonable charge, locking devices to permit parental control over programming. 5.44.300 Public, Educational and Governmental Services, I't 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) re- broadcast of the regular meetings of the City Council, and such other local government and community affairs programs as may reasonably be designated by the City Manager not to exceed.20 hours per month. (d) Advertising announcements broadcast on the Community Channel shall promote primarily those persons and businesses maintaining an office or location within the jurisdictional boundaries of the City. Grantee may collect a fee for advertisements broadcast on the Community Channel. (e) At all times, in the absence of local origination programming on the Community Channel, Grantee shall cause to be broadcast by means of a character generator or other device, public announcements or local information as may be submitted or made available to Grantee or as may be designated from time to time by the City Manager. (f) All Grantees of a CATV 'franchise within the City, upon request of the City Manager, shall make available video equipment and production studio facilities for use by non - profit public, educational or governmental groups for the purpose of producing access programming. (g) A television monitor and video cassette recorder shall be installed and maintained in the City Council Chambers of the City of Newport Beach by the CATV systems franchised to operate within the City. The specifications for such equipment shall be prescribed by the City Manager. The cost shall be shared by the 25 Grantees in proportion to their number of subscribers within the City. (h) Every CATV system franchised to operate within the City shall provide an emergency audio override on all channels accessible from the City's Emergency Operations Center for the purpose of disseminating instructions to residents during a declared emergency. (i) Within one (1) year from the passage of this section, each CATV system franchised to operate within the City shall provide to every City fire station located within its primary franchise area, cable service to enable live reception of training and other programming originated or rebroadcast from the Central Net facility located in the City of Huntington Beach. Costs of providing such service shall be shared by the grantees in proportion to their number of subscribers within the City or in some other proportion mutually agreed to by grantees. The City Manager may grant extensions to the time limit imposed by this section upon submittal by grantees of acceptable evidence of extenuating circumstances and a good faith effort to comply with this section. 5.44.400 Miscellaneous Provisions. A. All matters herein provided to be filed with the City shall be filed with the City Clerk. B. No person, firm or corporation in the Primary Franchise Area of Grantee shall be arbitrarily refused service; provided, however, that Grantee shall not be required to provide service to any subscriber who does not pay the applicable construction, installation and monthly service charge. C. The City Council may, upon finding that extraordinary circumstances applying to the land, buildings or CATV system do exist, waive any or all of the requirements of this Chapter. 5.44.410 Effect of Annexations. A. In the event any new territory shall become annexed to the City, the City Council shall determine which Grantee or tz Grantees shall serve such new territory. B. In the event any portion of unincorporated territory covered by an existing franchise granted by the County of Orange is annexed to the City prior to the time that the Grantee of such County franchise has commenced installation of a CATV system within said territory; all rights acquired by' said Grantee under its County franchise shall terminate by operation of law as of the date on which the annexation to the City becomes effective. C. In the event any portion of unincorporated territory covered by an existing franchise granted by the County of Orange is annexed to the City after the Grantee thereof has commenced or completed construction and installation of a CATV system within said territory, the rights reserved under said franchise to the County of Orange or to any officer thereof shall inure to the benefit of the City of Newport Beach, and all regulatory provisions of this Ordinance and any other rules and regulations applicable to CATV systems operating within the City, whether then in effect or subsequently adopted, shall be applicable to and binding upon said Grantee. In addition, the Grantee shall be obligated to pay an annual franchise fee to the 'City based on the gross receipts derived from its operations within the annexed territory. 5.44.420 Violations. A. It shall be unlawful for any person, firm or corporation to make any unauthorized connection in physical contact with any part of a franchised CATV system within the City for the purpose of taking or receiving or enabling himself or others to receive any television signals, radio signals, pictures, programs or sound. B. It shall be unlawful for any person, without the consent of the Grantee, to willfully tamper with, remove, or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound. C. From and after the effective date of this Chapter, it shall be unlawful for any person to construct, install or maintain within any public street in the City or within any other 27 public property of the City or within any privately owned area within the City which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the City any equipment or facilities for distributing any television signals or radio signals through a CATV system unless a franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this Chapter and unless such franchise is in full force and effect. 5.44.430 Penalties. The Grantee shall pay a penalty of up to Ten Thousand Dollars ($10,000.00) for failure to comply with any section of this Chapter, provided that the City has notified the Grantee in writing of the alleged non - compliance and the Grantee fails to cure same within thirty (30) days or in the case of non- compliance, which because of its nature cannot be cured within thirty (30) days, fails to commence within such period and thereafter diligently pursue a cure.. Any such penalty shall be payable from the bond required by Section 5.44.080. The City Manager shall determine the extent of the penalty and shall immediately notify the Grantee of the penalty determination. The Grantee may formally object to the penalty by filing a written notice of objection with the City within thirty (30) days following notification by the City of the fine to be levied. I'f the Grantee so objects, a public hearing before an appointed hearing officer shall be held within thirty (30) days of the filing of the Grantee's written notice. Grantee shall be provided an opportunity to be heard at such hearing, including the right to present evidence, cross -exam witnesses and be represented by counsel. All penalties are due and owing thirty (30) days after a final decision by the hearing officer, whose decision shall be final. 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 9E attorneys' fees, as may have been suffered or incurred by Grantor by reason of or arising out of any failure to comply with the provisions of this Chapter. SECTION 2: That if any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 3: ordinance 1153 and all subsequent ordinances amending Chapter 5.44 are hereby repealed. SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this, ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. SECTION 5: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 11th day of March , 19 91, and adopted on the 25th day of March , 19 91, by the following vote, to wit: ATTE T: / J � l , ceY CITY CLERK AYES, COUNCILMEMBERS HEDGES, WATT, TURNER, SANSONE, HART, COX, PLUMMER NOES, COUNCILMEMBERS NONE ABSENT COUNCILMEMBERS NONE r MAYOR 29 TO: FROM: SUBJECT: i 0 CITY COUNCIL AGENDA ITEM NO. J -1 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER OCTOBER 14, 1991 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER CATV FRANCHISES OCT 14 1991 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, AND If desired, introduce for first reading Ordinance 917 amending and extending the term of the franchise granted to Community Cablevision, :►p 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. Page 2 0 The CATV companies have submitted evidence indicating they are or will soon be in compliance with all provisions of the new enabling ordinance adopted by the Council last March. the 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. K elino KJD:mb Attachments TO: FROM: SUBJECT: 0 0 CITY COUNCIL AGENDA ITEM NO. J -1 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER OCTOBER 14, 1991 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER CATV FRANCHISES OCT 14 in 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, .moo If desired, introduce for first reading Ordinance 91 -. amending and extending the term of the franchise granted to Community Cablevision, AND 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. 02)I , Y 6`f Page 2 Several other items including evidence of surety bonds, emergency audio override, fire station hookups and two -way franchise interconnect will be addressed prior to agendizing the franchise extension ordinance. The remaining major item is the length of the franchise term. The existing ordinance specifies a term of not less than ten nor more than twenty -five years for a new franchise or a renewal. The-City Council, when it choose from the "shopping list" in 1990, selected a ten year term. ANALYSIS: The two major considerations regarding term are amortization of investment and the regulatory environment.. When a large capital investment is made at the. - (beginning of a franchise, the term must be sufficient to amortize that investment. The initial position of staff was that a ten year term was sufficient because the cable companies have had adequate time to amortize their initial investments and that little new investment was required by the revised ordinance or the franchise extension. However, the cable companies, particularly COMCAST, responded that recent and planned upgrades require amortization periods longer than ten years. Furthermore, as an inducement to the City to lengthen the franchise term, both companies have offered in writing to expand capacity from 39 (Community) and 42 (COMCAST) channels to 54 channels. Cable company representatives will further explain their positions at the Study Session. Such additional investments or perhaps other contributions may reasonably be considered by the City Council as compensation for the granting of a longer and, therefore, more valuable . franchise. Coincidentally, since the passage of the ordinance in March, the Fire Department has noted that their use of it would seriously impact the Community Channel and that they would like to have an in- house . broadcasting capability. The uncertain regulatory environment is the second major consideration. In 1984, the federal government deregulated CATV to prohibit cities from regulating rates and to effectively prohibit cities from denying franchise renewals. (In some respects this makes franchise term a mute .point.) Various reregulation and increased competition proposals 'are under consideration including telephone company participation in the cable industry. A newspaper article and a letter from an activist further explaining this subject are on pages 1 -7 of the attachment. a, Page 3 Given this uncertain regulatory environment, longer franchises benefit the cable companies and shorter ones may benefit the City. However, the City's ordinance anticipated this and provides ample protection and flexibility to the City to accommodate any reregulation. Various sections of the ordinance allow the City to unilaterally amend the ordinance, grant additional franchises, and regulate rates as allowed by newly applicable state or federal. laws. RECOMMENDATION A longer franchise is valuable to the cable companies and the City should receive value in return. A 20 year franchise extension is recommended if, in return, the cable companies agree that within five (5) years capacity will be increased to 54 channels and that one of those channels will be dedicated for use by the Fire Department and that additional video equipment will be provided to the Fire Department to enable broadcasting from their City Hall offices to all fire stations. If the cable companies do not agree then a ten year term is recommended. Kenneth J. �Delino • COUNCIL AGENDA- WA4--s -fvS 4 i,j 404 u 111 Af s�,—;p -),u A 'S F zc. S' L-21 C,-(t21S-T14, 77 Date COPIESSWTQ: � Mavor --I vulmu� Attomey Bldg. DW, ' '751 j GenSem Pk :i PB&RDk c c 3 I Planning-& - 7 Police Clid e er6 4 -j P - W DW /o- / °/ -4/ - a, IRVINECO TEL No. 7202158 Oct 09,91 11 :22 P.02 Ga mwn1tyCaWevh*on k s`9'x tAFIEP ACU 1A J. Donald S. MONutt President October 9, 1991 BY FAX TRANSMITTAL Mr. Ken Delino CITY OF NEWPORT BEACH P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Ken: This is to request the postponement of the October 14, 1991 hearing regarding cable television franchise renewals. Based on feedback we have received from council members, we are considering changes to our proposal. sin rely, on McNutt DM. met P.O. Box I, NGwpuil Bench, GSIHOMia 92thd • (714) 72Pr2268 OCT- 09 -191 WED 14:53 ID: CAST TEL N0:714 -14 11062 P02 " D: "EI �AGENDA txmwat Oabkvlalon PRINTED:" 1000 E. Santa Ana Boulavaid Suite 220 Santa Ana, CA 92701. 714 Nrb 2000 �,✓. RECEIVED COMCAST OCT 9 ,1991 uCITY Of n PORT NEWPoR18fnry October 9, 1991 Mr. Kenneth J. Deiino Deputy City Manager City of Newport Beach 3340 Newport Boulevard Newport Beach, CA 92663 Dear Ken: Comcast would like to postpone the first reading of the CAN franchise extension to the October 28 meeting. We are currently conducting a programming survey of our Newport Beach customers and the results will not be complete until later next week. I feel the results of this survey Is Important information that I would share individually with the Coundimembers. Thank you for your Consideration of this matter. Best Regards, David Barford Vice President and General Manager Corncast Cablevislon of Orange County •:.:. 0 "RECEIVED At;Ep10A PRINTED:" 0 Date OA -- - -- ❑ Bl — - - -- ❑ Gffl tINL ❑ PB&ROk - a PoIiC9 Gldd - 7 "REC7T!TL- � i'RI�Faf3 " M o 71 �w B � 1b i1 OFFICE F 7k' Q GCi 9 s3 COPS sr, . 8 ❑Here^.• "Or "y� elet(c ... ?r ' P, rzs�a:�asting- `�JUctetiirl�.tnc :1F d's 11 1 eo F Z 0: October 4; 1991 The Honorable Phil Samsone Mayor of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Mayor Samsome: rn -iC+ "i W o : I(,TBA (�annel40TV 0,0832-2M I recently read in the Newport News that both cable companies (Comcast Cable and Community Cablevision ) are asking for an extension in their franchise agreement. They need this extension in order to upgrade their cable systems and add additional channels. They have represented that they will seriously consider adding KTBN and other additional channels to the cable systems in our city. KTBN is the flagship station for the Trinity Broadcasting Network (TBN). TBN is available to over 30 million cable and broadcast homes across America. Arbitron has reported TBN as the highest rated and most viewed religious network in our country. Many TBN viewers in our own city of Newport Beach are looking forward to the addition of TBN on both of our cable systems. As a longtime resident of Newport Beach, I encourage you to grant the extension to the cable companies franchise agreement as this will enable the cable companies to add TBN to their service. Thank you for your consideration in this matter. Sincere yours, OFFICE OF THE W-Y -1 Paul F. Crouch 9�i! President CenES SENT TO: - PFC:mt -Ila "'altoYneY / 'And I, if .'1 be UfJ e? :,Sr rp('+:!n the f.'([0 h, Will Craw ,W men unto me." 0 0 "RECEIVED FTE11 AGENDA PRINTED-. October 9, 1991 TO: Mayor Phil Samsone 3300 NewportBlvd. NewportBeach, Ca. 92663 FROM: Nadine E. Kirk 1721 Marlin way Newport Beach, Ca. 92660 "C RECEIVED OCT 10 1991 CIry CtERX kPoR BEMs{ I have been notified that the cable companies servicing our area are requesting extension of franchises to operate in NewportBeach. They have agreed to add more channels if extensions are permitted, including Trinity Broadcasting Network. I respectfully request that you grant the extensions (in order that we may receive TBN by cable.) Thank you for your consideration. FFITCE OF THE MAYbR --MS SENT TO: (L om ii�r:n L' 3r3 :i iV•Y Clem [�n¢r LJ Q 70 Maio 99% A Jp�Y �A J 11 Illi,ak AFFERAGENDA PRINTEV' z7A-1 ra 4 1? -?<r, W, Jr-*-Nanz . b. C7qmn=2 '7) J - 0. Sox 2424 dvzwpott Dwcfi, elifmi, 92663 ()Ivlql �47 '12 OFFICE or Tt 0 COMSSEWTO, EIVED 9 Ac u h VED ER AGEai"A I"NIN"i s NON`, OFFICE OF THE MAYOR CePI S SENT TO: ,—,Co ae�lman �l,M Sesger [}A lorn49 tJ rlMwwlol m 0 ✓� /rug •�ti� -' i /`� �''��'� �� f EIVED' T 9 1997 ► city ,yor Newport L lvw "RECEIVED R AGENDA ` PRINTED:" RECEIVED OCT 11 Ml cnv aesr� cire a� NEk'PURtBFACH. r� Judy Friedman ,J // 0 m Xz ij 6 '. PRINTED. . l r it,, i `L.c2 ?L.L `.J - - :rr,; a a Community Cablevision J. Donald S. McNutt President May 15, 1991 Mr. Ken Delino City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92660 Re: Cable Television Franchise Renewal Dear Ken: Please accept this letter as Community Cablevision Company's official request for a 25 year renewal of its cable television franchise. I am pleased to inform you that we are in full compliance with requirements of the City's revised CATS? Ordinance as outlined in your letter dated April 3, 1991. Community Cablevis'ion is proud of its relationship with Newport Beach and is committed to continue working with the City to provide its residents with the 'highest level of service possible. As requested, we have enclosed a map outlining our primary service area and the appropriate application fee of $1,000. Ken, we are ready to address any concerns you may have, including acceptance fees, and will provide further information you may request as we proceed. Sincerely, DMc:mb /MC -127 Enclosures P, 0 . Box I, Newport. Beach, California 92658 • (714) 7202268 TO: FROM: SUBJECT: 9 0 CITY COUNCIL AGENDA ITEM NO H- I CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER MARCH 25, 1991 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER REVISED CATV ORDINANCE ® ACTION: If desired, adopt Ordinance 91- amending Chapter 5.44 of the Newport Beach Municipal Code pertaining to Community Antenna Television. 2 5 1991 BACKGROUND: The two CATV franchises within the City held by Community Cablevision and COMCAST expire in 1992. In preparation for their renewal, the City Council in January, 1990 reviewed a "Shopping List' of items to be included in the new franchise. That Study Session report is recycled with this item. Negotiations with the CATV companies ended in January 1991 and the City Council revisited the subject on February 11, 1991 and reviewed the proposed ordinance on February 25th and March lath. With one minor exception the negotiations yielded agreement on all the items requested by the City Council. The exception involves interconnecting with the systems of surrounding cities to provided simultaneous broadcast of community events. Such a mandatory requirement was found to be potentially very expensive and • technologically difficult. In practice, the two CATV franchisees now provide such interconnects with Costa Mesa, Santa Ana, Tustin and Irvine. Only Huntington Beach's system will not be connected to Newport Beach's. (02) • Page 2 0 0 The sequence of events in this franchise renewal process is to first revise the ordinance to embody all the items to be included in the new franchise. The franchise document itself will be relatively simple and will include only a map of the franchise area, the term, the amount of the acceptance fee, and the franchise fee. A franchise renewal will not be granted until such time as the CATV companies are in compliance with the new ordinance. Several items of specific concern to the City Council are addressed below: Competition As explained in the attached recycled Study Session item, head -to -head competition is almost impossible. However, Newport Beach is uniquely fortunate in having two franchises whose areas overlap in some places. ® This ordinance proposes non - exclusive, City -wide franchises for both companies to promote competition. Rates and Reregulation The U.S. Congress is considering reregulating the cable industry including the setting of rates. The proposed ordinance provides for unilateral amendments by the City and for review of rates as permitted by applicable law in effect or adopted during the term of the franchise. Above Ground Apparatus Concerns relating to the installation of above ground pedestals and equipment boxes necessary for underground cables are addressed in Section 5.44.140D. (page 17). Such new apparatus is severely limited and that which is permitted requires coordination, with property owners and • the City Manager if necessary regarding its location. A remedial program to retrofit or relocate objectionable apparatus is included in the ordinance. It provides nearly $13,000 each year which could replace twenty (20) of the smaller pedmounts with flush mounted vaults ($300 each) and move ten (10) of the larger boxes ($700 each) annually. • • Page 3 Community Channel The ordinance establishes the Newport Beach Community Channel to focus almost entirely on events and activities within the City. It will modify the current programming on Channel 3 to include a community bulletin board via a character generator, locally originated shows, and local advertising. The Community Channel is intended to fill many of the needs to disseminate vital information to all households City -wide. General The proposed ordinance has been completely reformated and, much of the detail language regarding liability, administration has been revised to current- standards. available to address additional concerns of the City Council i Kenneth J. lino KJD:mb Attachment to read easier; enforcement and Staff will be and the public. • r TO: FROM: SUBJECT: BACKGROUND: • • STUDY SESSION ITEM NO. 5 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER JANUARY 81 1990 MAYOR AND CITY COUNCIL EXECUTIVE ASSISTANT CATV FRANCHISE RENEWAL Franchises for Community Antenna Television (CATV) • systems granted by the city expire in January 1992. This report will introduce the issues and choices regarding renewal of CATV franchises and will provide a basis for City Council direction to staff during the negotiations. CATV, commonly referred to as cable TV, serves most City residents, and the wide assortment of cable services is rapidly becoming a fixture in every day life. Approximately 64% of the City s dwelling units receive cable TV. Two companies, COMCAST and Community Cablevision, serve the City (see map next page). COMCAST passes approximately 271500 homes and serves approximately 16,000.. Community Cablevision (now managed by Copley- Colony) passes approximately 7,475 homes and serves 6,245. The programs and services offered on cable TV are shown on the channel lineups attached after the map. Franchise fees paid recently to the City's General Fund are as follows: YEAR COMCAST COMM CABLE TOTAL 1986 $168,592 $ 67,506 $236,398 1987 195,735 87,597 283,332 1988 225,21.5 103,513 328,728 1989 280,971 108,989 389,960 1990 299,960 123,451 423,.411 F , ry C„ ` . <I IN ' Q . r\ Az s ✓. c 3 ove laP'P lug 1.1 gsanct`is k b 1 Comm Cable Y! 4 gsanehlge W ti ■ Aseaf ✓. =i Is ..ex * ' X31A'K�� 3i !af 'W tiR� to. CO2LCA �,P" a t i r sd.F tt,lSe �a�'�= a «+ .,.-• ,° � V '� F sum .-'�'� `�� i - s ,•. �9� SFr eenee WgRAt}Cy�I$ � `sue, � � \y /� r� tt°9��;.. a. � S,� �,�i ,,:.f -i c . \� ✓" Yep NEWPOitT `. A'1.Q Cable TV has not been a major issue in the City. For a time, subscriber complaints of poor service by COMCAST was a pressing problem, but this largely subsided when the system was rebuilt. A spurt of complaints occurred in September and October of 1989, but subsided when COMCAST opened new subscriber service facilities in November. Recently, complaints addressed to the City average less than one per week. Local programming consists of the City Council meetings and periodic broadcasts of local events. Rate regulation formerly done by the City is now preempted by federal law. The City has largely focused its efforts on good picture quality and good customer service and let the cable companies provide services and programming in response to the market. REGULATORY ISSUES: The City derives its authority to franchise cable TV from the use of public right -of -way by transmission cables in the same manner as electrical and gas utilities. While utilities also pay franchise fees to the City, they are regulated by the Public Utilities Commission. In contrast, CATV companies are regulated primarily by local governments with some guidance from the Federal Communications Commission and Federal Legislation. The Federal Cable Communications Policy Act of 1984 (the Cable Act) essentially deregulated the cable TV industry and sharply limited the discretion of local governments. As discussed below, the Gable Act has made it difficult, if not impossible, for local governments to deny a franchise renewal. The Cable Act prohibits local control of subscription rates and limits franchise fees to no more than 5 %. Largely in response to a national outcry against high subscription rates, the federal legislature is considering deregulation of the industry. City staff will monitor the legis- lative process during the upcoming negotiations on franchise renewal. RENEWAL VERSUS OPEN BID The relative advantages of negotiating renewals with current franchisees are often compared to the perceived benefits derived from an open and competitive bid process. While open bidding is always an option if negotiations fail, staff believes that negotiat- ing a new agreement with the current franchisees is consistent with the intent of the Cable Act and may provide the best TV service to • the City. There are many reasons for this. First, the Cable Act makes denial of a request for franchise renewal very difficult and time consuming. A three year period is required for formal administrative hearings complete with witnesses, • tr'ans'cripts, etc. Specific findings are required, and adverse findings must be accompanied by evidence that demands by the City to cure any defects went unheeded by the cable TV company. Further- more, the cable TV company has the opportunity to appeal the City's decision in the courts. Such a process would be time consuming and expensive and likely would disrupt TV service to residents. Secondly, the large capital investments needed for a cable TV system hinder new entrants and create advantages to incum- bents. A new cable TV company is not likely to build a "side - by- side" system to compete with a well established franchisee for a limited base of subscribers. If an existing franchise is not renewed, the Cable Act provides that the City or the new franchisee must acquire the old system as a "going concern" thus raising the price above the mere cost of facilities and equipment. Also, current franchisees tend to be protective of their large investments and can use their capital base to provide expanded or lower cost service. Thirdly, the franchise renewal process provides an opportunity to promote competitiveness within this monopolistic industry. Staff will recommend that the two existing franchises overlap throughout the City in an "over build" fashion as now exists in only parts of the City (see map). Residents might then have the • opportunity to choose between competing systems. New entrants likely would find such competition prohibitive, but the incumbent franchisee's operating from a secure subscriber base may welcome it. Details of this concept remain to be worked out, but this is the direction recommended by staff. Lastly, the two existing franchisees historically have cooperated with the City and, at this point in time, seem receptive to negotiating renewals. Staff sees no benefit to jeopardizing this attitude. Community Cablevision has always provided exemplary service and very few subscriber complaints about it have reached City Hall. COMCAST, at one time, had severe service problems but in response to exhortations from the City completely rebuilt their system here. A recent spate of subscriber complaints has subsided since COMCAST opened their new customer service facility. In the opinion of staff, more is to be gained from negotiating new franchises with COMCAST and Community Cablevision then from any "open bid" process which may foster an adversarial process and interruptions to service. ALTERNATIVES AND OPTIONS: Despite federal deregulation, the City has many choices in the content of its cable TV franchises. A review of the literature -5- and the franchises of most Orange County cities reveals a variety isof provisions for consideration. Organized into four major categories, these options are listed on the attached pages in a "shopping list" format for the Council's review. This summary is intended to provide an introduction to the many available options and to provide the City Council with a convenient means to direct staff. KENNETH J. DELINO KJD:mb Attachments • -6- V • 0 SUBSCRIBER SERVICES These options pertain to installation, repairs,, complaints and provision of customer service. OPTION IN CURRENT FRANCHISE? STAFF RECOMMENDATION FOR NEW FRANCHISE CITY COUNCIL Toll Free Telephone Number Yes Include Include 24 -Hour Telephone Service Yes Include Include in Service Office with Franchise Area , No Include Include Deadlines for Service Response Yes Expand Expand Service Tc-heduling Guarantees No Include Include Saturday and Extended Hours Service Calls No Include Include Subscriber Rebates for Outa es /Poor Service No Include Include Fines or Continued Poor Service Yes 500) Increase to 10,000 Increase to 10,000 Periodic Performance Tests by Cit No Exclude Exclude Test upon'Demand by City Yes Include Include Privacy Guarantees and Data Collection Prohibitions No Include Include Require Parental Channel Loc " Yes Include Include f • f • • PUBLIC /EDUCATIONAL /G0MENTAL SERVICES These options provide for local origination programming and public access to cable channels. STAFF RECOMMENDATION OPTION CURRENT FRANCHISE FOR NEW FRANCHISE CITY COUNCIL Require One Community No Spec Ty the Same Channel Specify the Same Channel Program Channel (done informally) Number for both Franchises to Number for both Franchises to be Called the Newport Beach be Called the Newport Beach Communi Channel Community Channel Require Two to Five Community No Exc u e Exclude Channels Require City-Programmed No Provide Character Generator to Provide Character Generator to Information Channel be Programmed by City for be Programmed by City for Community Channel Community Channel Require Local News Show No Exclude Exclude Require Video Studio No Allow for Use of Existing Allow for Use of Existing Equipment/ Manpower Facilities /Equipment by Facilities/ Equipment by Community Groups and Provide Community Groups and Provide Assistance /Training as Assistance /Training as Required Required Require Live Broadcast or No Require One Live and One Require One Live and One Rebroadcast of (done informally) Rebroadcast of City Council Rebroadcast of City Council City Council' Meetings, Other Meetings and Broadcast Others Meetings and Broadcast Others Commission /Committee Upon Request of City Manager Upon Request of City Manager Meetings, and Other Community Events /Functions Require Free CATS? Service to: All City Buildings Yes Include Include All School Buildings No Exclude Include Other Buildings No Exclude Exclude Require Monitor in City Council Include Include Chambers Require Network to Link all City No Exclude Exclude Buildings Require Emergency Overri a on No Include Include all Channels MANAGEMENT AND ADMINISTRATION 1, E STAFF RECOMMENDATION OPTION CURRENT FRANCHISE? FOR NEW FRANCHISE CITY COUNCIL Franchise Administered by No Exclude Exclude Commission or Committee Franchise Administered by City Yes Continue Continue Manager Term 10 to 25 Years 10 Years 10 Years Franchise Fee 3°% to 5% 5% of Gross Receipts and 5% of Gross Receipts and Expand Definition Expand Definition Fees Paid Annually Quarterly Quarterl Late Fee 2% per Month on Unpaid 2% per Month on Unpaid 2% per Month on Unpaid Balance Balance Balance Acceptance Fee Per City Council $25,000 $25,000 Advance Fees No Exclude Exclude. Franc ise Area Non 'Exclusive but Specified by Non -exc ustve, expand of Non-exclusive. expand o Metes and Bounds Companies to Entire City Companies to Entire City Right to Purchase/Acquire No Exc u e Exclude System Upon Termination Approva o Trans er Yes Inc u e Include Approval o New Management No Include Include Company 1, E • • SERVICES AND PROGRAMMING These options deal with the technical specifications of the CATV system and the number and content of channels. • f� STAFF RECOMMENDATION OPTION IN CURRENT FRANCHISE? FOR NEW FRANCHISE CITY COUNCIL List Technical SpeciTications Yes Update per FCC Standards Update per FCC Standards S ec Number of Channels No Exclude Exclude Spec Stations to be Carried No Exclude Exclude Require Inter - Connect w /other As Financially and Technically Require Require Franchise within City and Feasible w /Neighboring Cities' Franchises Require Capability for. As Technology and Economics Continue Current Language Continue Current Language Data Transmission, Permit Electronic Mail', Remote Telemetry, FAX, Teleconferencing, Interactive Training, and Other Miscellaneous Innovations f� u L CITY COUNCIL, AGENDA ITEM NO. J -1 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER OCTOBER 14, 1991 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, me If desired, introduce for first reading Ordinance 91 -, amending and extending the term of the franchise granted to Community Cablevision, D 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. S -IUI)Y SESSION ITEM NO. s CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER SEPTEMBER 9, 1991 TO: MAYOR AND CITY COUNCIL FROM: DEPUTY CITY MANAGER SUBJECT: CATV FRANCHISE EXTENSIONS BACKGROUND: Both CATV franchises expire in January, 1992- During the past 20 months, the City Council and staff have negf tiated and in approved a new enabling ordinance and monitored CATV p preparation for granting franchise extensions. The one remaining item is to determine the term of these extensions. a is report for ill r ladirection the Council with the basic issues and provide on the length of the term. HISTORY: In January, 1990 the Council reviewed an extens ve it history and background report and also selected from a "shopping list" which it wished to be included in a new enabling ordinance. This original report is included on pages 11 -19 of the attachment. In March, 1991 the Council adopted the ordinance which included all the requested items. The staff report accompanying that ordinance is included on pages g -10 of the attachment. Since March, staff has worked with the CATV companies to insure compliance with the new ordinance. Of particular interest, the following • are complete: I. Initiation of the Community Channel. 2. Installation of a TV in the Council Chambers. 3. Payment of fees on a quarterly basis. 4. Initiation of a subscriber rebate system for service outages. • E 0 Page 2 Several other items including evidence of surety bonds, emergency audio override, fire station hookups and two -way franchise interconnect will be addressed prior to agendizing the franchise extension ordinance. The remaining major item is the length of the franchise term. The existing ordinance specifies a term of not less than ten nor more than twenty -five years for a new franchise or a renewal. The City Council, when it choose from the "shopping list" in 1990, selected a ten year term. ANALYSTS: The two major considerations regarding term are amortization of investment and the regulatory environment. When a large capital investment is made at the beginning of a franchise, the term must be sufficient to amortize that investment. The initial position of staff was that a ten year term was sufficient because the cable companies have had adequate time to amortize their initial investments and that little new investment was required by the revised ordinance or the franchise extension. However, the cable companies, particularly COMCAST, responded that recent and planned upgrades require amortization periods longer than ten years. Furthermore, as an inducement to the City to lengthen the franchise term, both companies have offered in writing to expand capacity from 39 (Community) and 42 (COMCAST) channels to 54 channels. Cable company representatives will further explain their positions at the Study Session. Such additional investments or perhaps other contributions may reasonably be considered by the . City Council as compensation for the granting of a longer and, therefore, more valuable franchise. Coincidentally, since the passage of the ordinance in March, the Fire Department has noted that their use of it would seriously impact the Community Channel and that they would like to have an in -house broadcasting capability. The uncertain regulatory environment is the second major consideration. In 1984, the federal government deregulated CATV to prohibit cities from- regulating rates and to effectively prohibit cities from denying franchise renewals. (In some , respects this males franchise term a mute point.) Various reregulation -and increased competition proposals are under consideration including telephone company participation in the cable industry. A newspaper article and a letter from an activist further explaining this subject are on pages 1 -7 of the attachment. 1 • Page 3 Given this uncertain regulatory environment, longer franchises benefit the cable companies and shorter ones may benefit the City. However, the City's ordinance anticipated this and provides ample protection and flexibility to the City to accommodate any reregulation. Various sections of the ordinance allow the City to unilaterally amend the ordinance, grant additional franchises, and regulate rates as allowed by newly applicable state or federal laws. all fire stations. If the cable companies do not agree RECOMMENDATION A longer franchise is valuable to the cable companies and the City should receive value in return. A 20 year franchise extension is recommended if, in return, the cable companies agree that within five (5) years capacity will be increased to 54 channels and that one of those channels will be dedicated • for use by the Fire Department and that additional video equipment will be provided to the Fire Department to enable broadcasting from their City Hall offices to all fire stations. If the cable companies do not agree then a ten year term is recommended. KJD:mb Kenneth J. elino • • TO: FROM: SUBJECT: ACTION: CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER JANUARY 22, 1990 MAYOR AND CITY COUNCIL EXECUTIVE ASSISTANT CATV FRANCHISE RENEWAL CITY COUNCIL AGENDA ITEM. NO. F -9(c) 17 ,. JAN 2 2 1`%% -�2 Gn- --- -°---� fir-• —�--�r If desired, approve in concept specific items to be included in new franchises. BACKGROUND: At the Study Session of January 8, 1990, the City Council reviewed a staff report outlining the major issues re- garding franchise renewal and reviewed the attached "shopping list" of specific items. After reviewing the staff recommendations the Council indicated their support of specific items as indicated in the column entitled "City Council ". Conceptual approval of these items at this time will enable staff to commence negotiations with the cable TV franchisees. Periodic reports regarding these negotiations will be placed on future Study Session Agendas. KJD:mb Attachment KENNETH DELINO i i • SUBSCRIBER SERVICES These options pertain to installation, repairs, complaints and provision of customer service. OPTION IN CURRENT FRANCHISE? STAFF RECOMMENDATION FOR NEW FRANCHISE CITY COUNCIL Toll Free Telephone Number Yes Include Include 24 -Hour Telephone Service Yes Include Include Service O ice within Franchise Area No Include Include Deadlines for Service Response Yes Expand Expand Service Schedulin Guarantees No Include Include Saturday and Extended Hours Service Calls No Include Include Subscriber Rebates or Outa es /Poor Service No Include Include Fines or Continued Poor Service Yes ($500) Increase to $10,000 Increase to $10,000 Periodic Performance Tests by City No Exclude Exclude Testing upon Demand by City Yes Include Include Privacy Guarantees and Data Collection Prohibitions No Inclu a Include Require Parental Channel Locks Yes Include include S. 0 PUBLIC /EDUCATIONAL /GOOMENTAL SERVICES 0 These options provide for local origination programming and public access to cable channels. 40 STAFF RECOMMENDATION OPTION CURRENT FRANCHISE FOR NEW FRANCHISE CITY COUNCIL Require One Community No Spec the Same Channel Specify the Same Channel Program Channel (done informally) Number for both Franchises to Number for both Franchises to be Called the Newport Beach be Called the Newport Beach Community Channel Community Channel Require Two to Five Community No Exclude Exclude Channels Require City- Programmed No Provide Character Generator to Provide Character Generator to Information Channel be Programmed by City for be Programmed by City for Community Channel Community Channel Require Local News Show No Exclude Exclude Require Video/Studio/ No Allow for Use of Existing Ailow Tor Use of Existing Equipment /Manpower Facilities/ Equipment by Facilities /Equipment by Community Groups and Provide Community Groups and Provide Assistance /Training as Assistance /Training as Required Required Require Live Broadcast or No Require One Live and One Require One Live and One Rebroadcast of (done informally) Rebroadcast of City Council Rebroadcast of City Council City Council Meetings, Other Meetings and Broadcast Others Meetings and Broadcast Others Commission /Committee Upon Request of City Manager Upon Request of City Manager Meetings, and Other Community Events /Functions Require Free CATV Service to; All City Buildings Yes Include Include All School Buildings No Exclude Include Other Buildings No Exclude Exclude Require Monitor in City Council Include Include Chambers Require Network to Link all City No Exclude Exclude Buildings Require Emergency Override on No Include Include all Channels 40 I MANAGEMENT AND ADMINISTRATION • 0 STAFF RECOMMENDATION OPTION CURRENT FRANCHISE? FOR NEW FRANCHISE CITY COUNCIL Franchise Administered by No Exclude Exclude Commission or Committee Franchise Administered by City Yes Continue Continue Manager Term 10 to 25 Years 10 Years ears Franchise Fee 3% to 5% 5% o Gross Receipts and Receipts and Expand Definition Definition Fees Paid Annuall Quarterl terl E2ep Late, Fee 2% per Month on Unpaid 2% per Month on Unpaid h on Unpaid Balance Balance nce Acc eptance Fee Per Ci Council 25,000 ,000 .Advance Fees No Exclude Exclude Franchise Area Non Exclusive but Specified by Non-exclusive, expan of Non-exclusive, expand of Metes and Bounds Companies to Entire City Companies to Entire city Right to Purchase Acquire No Exc u e Exc u e System Upon Termination Approva o 'I'ransier Yes include Include Approval of New Management No Include Include Company 0 i • SERVICES AND PROGRAMMING These options deal with the technical specifications of the CATV system and the number and content of channels. STAFF RECOMMENDATION OPTION IN CURRENT FRANCHISE? FOR NEW FRANCHISE CITY COUNCIL List Technical Specifications Yes Update per FCC Standards Update per FCC Standards S ec Number o Channels No Exclude' Exclu e Spec Stations to be Carried No Exclude Exclude Require Inter - Connect w /other As Financially and Technically Require Require Franchise within City and Feasible w /Neighboring Cities' Franchises Require Capability for As Technology and Economics Continue Current Language' Continue Current Language Data Transmission, Permit Electronic Mail, Remote Telemetry, FAX, Teleconferencing, Interactive Training, and Other Miscellaneous Innovations • • r� L J 6 6 City Council Agenda Item No F -i(a) CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER MARCH 11, 1991 TO: MAYOR AND CITY COUNCIL FROM: DEPUTY CITY MANAGER SUBJECT: REVISED CATV ORDINANCE ACTION. If desired, introduce for first amending Chapter 5.44 of the Code pertaining to Community ( q2)- reading Ordinance 91 Newport Beach Municipal Antenna Television. This ordinance is presented for first reading only. The ordinance has been revised from that presented at the last City Council meeting to reflect concerns of Mayor Sansone and Mayor Pro Tern Turner regarding the elimination of above ground apparatus. A full staff report will accompany this item at its second reading scheduled for March 25, 1991. KJD:mb Kenneth Delino 0 City Council Agenda p Item No ` —/ (C,) CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER FEBRUARY 25, 1991 FR 2 5 1991 TO: MAYOR AND CITY COUNCIL FROM: DEPUTY CITY MANAGER SUBJECT: REVISED CATV ORDINANCE ACTION :: If desired, introduce for first reading Ordinance 91- amending Chapter 5.44 of the Newport Beach Municipal Code pertaining to Community Antenna Television The ordinance is presented for first reading only. A full staff report will accompany this item at its second reading scheduled for March 11, 1991. J. ELINO KJD :mb