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HomeMy WebLinkAbout2006-20 - Granting to Coxcom, Inc., a Nonexclusive Franchise to Construct, Maintain and Operate a Cable Communications System Within the City of Newport BeachORDINANCE NO. 2006 -20 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. (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 (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. 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 25th day of July, 2006, and adopted on the 8"' day of August, 2006, by the following vote, to wit: ffaw- AYES, COUNCILMEMBERS Curry, Selich, Rosansky, Ridgeway, Daigle, Mayor Webb NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS Nichols MAYOR r� e.�a rmm.w� r Exhibit A Service Area Cable TV Franchise Areas Gty w : ]ewFo 6 h STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2006 -20 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 8th day of August 2006, and that the same was so passed and adopted by the following vote, to wit: Ayes: Curry, Selich, Rosansky, Ridgeway, Daigle, Mayor Webb Noes: None Absent: Nichols Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 9th day of July 2006. (Seal) ity Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2006 -20 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: August 12, 2006. f In witness whereof, I have hereunto subscribed m/y�game this 69 day of 1 2006. �/l' 14s P ds City Clerk City of Newport Beach, California