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HomeMy WebLinkAbout14 COX COMM RENEWAL 01-16-01AGENDA RE DRT NO. 14 01-16-01 MEETING DATE' JANUARY 16, 2001 TO: WILLIAM A. HUSTON, CITY MANAGER FROM' OFFICE OF THE CITY CLERK SUBJECT' ORDINANCE NO. 1228- COX COMMUNICATIONS FRANCHISE RENEWAL SUMMARY The Cox Communications Cable Television Franchise Agreement expires on June 30, 2001. After .completing the franchise review and proposal process, staff is requesting that the City Council approve the renewal of the cable television franchise for Cox Communications. RECOMMENDATION Have second reading by title only and adoption of Ordinance No. 1228 (roll call vote). BACKGROUND The following Ordinance No. 1228 had first reading by title only and introduction at the January 2, 2001 City Council meeting' ORDINANCE NO. 1228 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, RENEWING A FRANCHISE FOR A CABLE TELEVISION SYSTEM GRANTED TO COXCOM, INC., DBA COX COMMUNICATIONS, ORANGE COUNTY 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 ORDINANCE NO. 1228 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, RENEWING A FRANCHISE FOR A CABLE TELEVISION SYSTEM GRANTED TO COXCOM, INC., DBA COX COMMUNICATIONS ORANGE COUNTY. WHEREAS, the City is authorized to grant, renew and deny franchises for the 6 installation, operation and maintenance of Cable Television Service within the City's boundaries by virtue of federal and state statutes and court rulings, by the City's police 7 , by its authority over its public rights of way and by other City powers and authority; and WHEREAS, CoxCom, Inc., doing business as, Cox Communications Orange County (hereinafter, "Grantee"), is currently maintaining and operating a Cable Television System in the City of Tustin pursuant to a franchise granted by the City; and WHEREAS Grantee agrees to comply with the applicable provisions of Tustin City Code, Sec.. 7410 et seq., as amended and the provisions of the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and by the Telecommunication Act of 1996, 47 U.S.C. §§ 521 et seq. (the Cable Act); and WHEREAS, the City finds that Grantee has substantially complied with the material terms of its existing Franchise and with applicable law; and WHEREAS, the quality of Grantee's Cable Television Service, including signal quality, response to consumer complaints and billing practices, has been reasonable in light of community needs;, and WHEREAS, Grantee has the financial, legal and technical ability to provide the services, facilities and equipment as set forth in this Ordinance granting a Franchise renewal; and WHEREAS, the terms and conditions of this ordinance granting a franchise renewal are reasonable to meet the future cable related needs and interests of the community, taking into account the cost of meeting such needs and interests. NOW THEREFORE, the City Council of the City of Tustin, California, does hereby ordain as follows: 1. Grant of Franchise Renewal. a. The City hereby grants Grantee pursuant to the terms and non-exclusive Franchise for'a Cable a Cable Television System Franchise renewal to conditions of this Franchise. This renewal of a Television System (hereinafter the "Franchise")is 10' 11 .12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 issued pursuant to the authority provided in Tustin City Code, § 7410 et seq., (hereinafter the "Enabling Ordinance") and the Cable Act. All of the provisions of the Enabling Ordinance are incorporated herein by this reference, as if set forth in full. The Enabling Ordinance and this Franchise contain the terms and conditions of the Franchise and shall supersede all prior Franchises granted to Grantee on the effective date of this Franchise. To the extent the provisions of the Enabling Ordinance are inconsistent with those of this Franchise, the provisions of this Franchise shall prevail. b. Grantee shall be subject to future City ordinances and City code amendments relative to its operations in the city. c. Assignment or Transfer of Franchise. The Franchise granted herein shall be a privilege to be held in personal trust by 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; or by voluntary sale, merger, consolidation or otherwise, without prior consent of the City Council of the City of Tustin expressed by Resolution, and then only under such conditions as may therein be prescribed, consistent with applicable law. Any such transfer or assignment shall be made only by an instrument in writing, such as a bill of sale, or similar document, duly executed copy of which shall be filed in the Office of the City Clerk within thirty (30) days after any such transfer or assignment. Any proposed assignee must show responsibility and capability as determined by the City Council, consistent with applicable law, and must agree to comply with all provisions of the Franchise and Tustin City Code. However, no such consent shall be required for transfer in trust, mortgage, or other hypothecation, in whole or in .part, to secure indebtedness. Provided, further, that Grantee may transfer the Cable Television System and any related assets, including this Franchise, to an entity which controls, is controlled by, or is under common control with Grantee, provided Grantee shall give at least thirty (30) days prior written notice of any such transfer to the .City. The consent required herein shall not be withheld unreasonably. 2. Franchise Area. The Franchise Area for this Franchise shall be all property within the boundaries of the City of Tustin as of the effective date of the Franchise, and as the boundaries may change during the Franchise period through annexation, subject to the following conditions' a. Grantee shall not be required to overbuild areas already served by another multi-channel video provider. b. In the event Grantee elects to overbuild areas already served by another multi- channel video provider, Grantee shall be subject to the procedures established under Section 53066.3 of the California Government Code, as applicable at the time Grantee submits its application, plans and specifications required under the Enabling Ordinance and this Franchise. c. In the event of annexation of new territory to the City, the City Council may determine at a public hearing the grantee or grantees, if any, that will serve such new territory. -2- I 3. Term of Franchise. Notwithstanding Section 7414.a. of the Tustin City Code, the term of this Franchise shall be for a period of ten (10) years, commencing on February 2 16, 2001, and expiring February 17, 2011 subject to a five (5) year extension provided that the City has found that Grantee has met the material terms and conditions of this Franchise 3 during the prior ten-year term. Nothing herein shall be construed to limit the City's right to 4 terminate this Franchise as hereinafter provided. 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 5 4. Franchise Fees. a. Fee. As of the effective date of this Franchise, the franchise fee shall be in an amount not to exceed five percent (5%) of Grantee's Gross Receipts. b. For purposes of this section, "Gross Receipts" is any and all compensation, in whatever form, grant, subsidy, exchange, or otherwise, directly or indirectly received by Grantee, not including any taxes or services furnished by the grantee imposed directly on any subscriber or user by a city, county, state or other governmental unit, and collected by ' the Grantee for such entity. However, "Gross Receipts" shall not include bad debt, any revenues other than from the provision of Cable Television Service from the operation of the Cable Television System, or amounts that may be excluded pursuant to applicable law. c. Time of Payment. The franchise fee shall be payable forty-five (45) days after the close of each quarter of Grantee's fiscal year ("billing cycle"). d. Grantee acknowledges that franchise fees are necessary to defray the City's costs associated with Grantee's use of City streets and for the purposes of providing revenue with which to defray the cost of regulation arising out of issuance of the Franchise. The streets and other public rights-of-way to be used by Grantee in the operation of its cable television system within the boundaries of the City are valuable public properties acquired and maintained by the City at great expense to its taxpayers, and the grant to the Grantee of consent t° use such streets and other public rights-of-way is a valuable property right without which Grantee would be required to invest substantial additional capital. Furthermore, the City will incur costs in administering the Franchise in the public interest. Thus, in consideration of the granting and exercising of a Franchise to uSe the streets and other public rights-of-way as herein defined, for the operation of a cable television system, and to reimburse City for costs incurred in administering this Franchise granted pursuant to this Ordinance, Grantee shall pay the City the fees provided in this Ordinance. e. No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the City may have for further additional sums payable under the provisions of the Franchise. -3- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 '5. Reimbursement of City Expenses. Grantee shall pay to City an amount equal to the legal expenses incurred by the City in preparing, revising, negotiating and enacting this Ordinance and matters directly related thereto. The City shall prepare a statement aggregating such cost and send such statement to the Grantee. In no event, however, shall such aggregate amount exceed One Thousand Five Hundred Dollars ($1,500.00). The Grantee shall pay the amount of such statement to the City within thirty (30) days thereafter. The purpose of this Section is to reimburse City for the expenses incurred by City in preparing and enacting this Ordinance. 6. Establishment and Extension of Cable Television Service. Grantee shall not be required to extend or offer Cable Television Service to any Unit .in excess of 150 feet when overhead and 50 feet when underground from Grantee's existing Cable Television System facilities or if the exte,nsion of Cable Television Service to a Subscriber would result in Cable Television System construction in an area less than 20 homes per mile of Cable Television System Plant without additional cost recovery based on the time and materials required from the Person(s) requesting the line extension. Upon receipt of a request by said Person(s) Grantee shall provide a written estimate of costs to extend Cable Television Service to the property in question within thirty (30) days. 7. Rates. Grantee shall impose rates consistent with the provisions of the Cable Act, and pertinent provisions of the California Government Code, any supplements or amendments thereto, any successor legislation, and the regulations which are or will be promulgated under such legislation. Grantee shall advise City of its rates and of any changes thereto' as soon as such rates or changes are established. , Cable Television System Design and performance Requirements. a. Cable Television System Capacity. Grantee shall provide a minimum carriage capacity of 750 MHz. Each Channel delivered to the Subscriber shall meet all Federal Communication CommiSsion (FCC) standards and rules. Grantee shall use its best efforts to maintain, operate, and, where, in Grantee's opinion, is technically and economically feasible, modify the Cable Television System towards the goal that its performance will be in accordance with the highest and best accepted standards of the industry. b. Minimum Services. Grantee shall make available a minimum of seventy-five (75) channels, provided that Grantee may utilize alternative technologies (including compression or servers) to deliver such channels. C, Permits, Plans and Specifications Required. (1) Prior to performing any work in, upon, above, beneath, or across any public right-of-way, Grantee shall first obtain all necessary or required permits, agreements, or approvals from the City and all other governmental entities with jurisdiction over the work or public right-of-way, including by way of example but not limitation, any or all of the following: -4- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 (a) Encroachment permits for street work, street excavation, use, removal and relocation of property within a street, and other street work, (b) Design review of above ground cabinets pursuant to Ordinance No. 1213, codified at Part 6 of Chapter 2 of Article 7 of the Tustin City Code, (c) Permits or agreements for occupying any other property of the City to which access is not specifically granted by the Franchise, including, without limitation, permits and licenses for placing devices on or in poles, conduits, or other structures or facilities owned by the City or other governmental entity. (2) All plans for work in, upon, above, beneath, or across the public right-of- way shall be engineered to a scale of not less than 1":4' and shall include the proposed location of the work, Grantee's existing facility locations, construction timetables, equipment specifications, and design performance criteria. Grantee shall make reasonable efforts to avoid negative aesthetic impacts. (3) Grantee's System. Grantee shall maintain in its business office, and make available to the City for its review, upon request, maps, using standard industry designations, that at a minimum disclose (a) cable routes, (b)locations and identifications of aerial and above and below ground appurtenances (such as risers, vaults, pedestals and power supplies) and (c) physical locations and identifications of system components, including but not limited to cables and active and passive electronics and the electrical values of its taps, splitters or directional couplers. Since such maps may be proprietary and confidential, copies will not be provided to the City. Where such plans and specifications are not in compliance with zoning ordinances, traffic safety' standards, and .other applicable ordinances, codes, regulations, determi'nations and ratings, Grantee shall modify-or revise such .plans and specifications so as to achieve such compliance. At the request of the City, Grantee shall reasonably relocate facilities within technical design constraints where such relocation will not result in additional cost to Grantee. d. Two-Way Capability. Any Cable Television System that Grantee shall choose to design for two-way capability shall be designed so as to permit the future implementation of upstream signal carriage without requiring modifications to its design. The Cable Television System shall also be capable of ensuring that noncommercial, educational and governmental ("EG") Programming can be distributed on the subscriber network. -5- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 (1) Two-way Cable Television Services for Subscribers shall be offered to Subscribers following satisfaction of each of the following conditions: (i) the offering of such t.wo-way Cable Television Services is permissible under applicable federal and state laws, ordinances, rules and regulations, (ii) Grantee has secured all certificates, licenses, authorizations and approvals from federal and state agencies necessary for the offering of such Cable Television Services, provided, however, that Grantee shall seek to obtain such approvals in a diligent and timely manner (iii) Cable Television System Subscribers and/or potential Cable Television System Subscribers have a demonstrable interest in subscribing to such two-way Cable Television Services, together with a demonstrable willingness to pay a reasonable rate for such Cable Television Services, in each case as evidenced by at least one statistically significant survey, provided, however, that upon the reasonable written request of the City it shall be Grantee's burden to demonstrate to the City's reasonable satisfaction that such Subscriber interest is insufficient and (iv) the investment necessary to implement such two-way capability can be reasonably expected .to be recovered from the incremental revenue anticipated from the provision of such Cable Television Services, together with a reasonable rate of return,, over a period of time which is reasonable and customary in the cable television industry for such investments. e. Home Subscriber Terminal Equipment -- Addressable, User Friendly. Pay-Per- View Capability. Grantee shall offer some form of addressable or alternative technology which is commercially available, in use by other comparable Cable Television Systems operated by Grantee or an affiliate of Grantee, and easy to use. Said equipment and Cable Television System shall be designed to eliminate Subscriber confusion in their attempts to utilize cable-ready television sets, VCR's Cable Television System Converters and remote control units. Addressable Subscriber Terminal equipment shall (i) permit Grantee to change the level of those Cable Television Services secured by such addressable technology promptly at the Subscriber's request, and (ii) permit a Subscriber to order single events (such as first run movies, sporting events, etc.). Grantee may use alternative technology '~o secure Premium Services and/or the delivery of individual events from time to time over the term of the Franchise. f. Parental Control. Grantee shall provide a parental control option, trap or other device to Subscribers requesting the capability of removing objectionable video Programming from any Cable Television Service or any Premium or Pay-Per-View Channel that is scrambled or otherwise withheld from any Subscriber. Grantee may charge for any such devices. g. Stereo Availability. Grantee shall offer and make available stereo audio as part of the video and audio signals delivered to Subscribers, provided that those signals are available for reception as stereo audio signals at Grantee's Headend or other signal processing point. -6- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 I h. Emergency Override System. Grantee shall provide, install, activate, and maintain an emergency override Cable Television System which includes audio override on 2 all Channels of Grantee's Cable Television System where such override is legally 3 permissible, and character generated message capabilities on a designated Channel. City shall be able to activate, provide audio programming, and terminate such emergency audio 4 override on City designated Channels via dial-up or dedicated telephone control upon Cable Television System upgrade. City shall use the audio override and character generated Cable 5' Television System only in emergency situations, as declared by the City Council or City Manager, when there is a threat to the'public welfare, health, or safety. 7 i. Standby Power. Grantee shall provide standby power generating capacity during utility power outages at its Cable Television System control center and at all 8 Headends. Upon activation of each phase of a rebuilt Cable Television System, Grantee shall maintain standby power Cable Television' System supplies at each fiber optic node. , Grantee Support for EG Access and Local Origination. a. Grantee shall designate Channel capacity on the Basic Cable Television Service tier for educational and governmental ("EG") programming and for Local Origination programming. Grantee shall initially designate three (3) Channels; one (1) Education Channel; one (1) Government Channel, and one (1) Local Origination Channel. b. In the event Grantee is required by federal law or regulations to change the Channel number of an EG Channel, Grantee shall provide thirty (30) days advance notice to the City and its customers. Should Grantee desire to change the Channel number for any other reason, Grantee shall notify the' City of such change and the reason for the change at least sixty (60) days before the proposed change. c. Whenever programming, whether of performances, notices or any other broadcast content, of any EG Channel occupies less than ten (10) hours of programming per day for six (6) days per week for a continuous period of not less than twelve (12) consecutive weeks, the City shall permit Grantee to utilize unused Channel capacity of that Channel under the following conditions: (1) Any request from Grantee to use any fallow capacity designated for a EG Channel must be submitted in writing to the City. (2) The City shall approve the request from Grantee to use fallow Channel capacity if it finds that: (i) the utilization of the Channel is as represented; (ii) Grantee 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. If the City fails to act on Grantee's request within thirty (30) days, it shall be deemed approved. After approval, Grantee may continue to utilize the Channel for any other purpose it so chooses, consistent with the Franchise, until the City reasonably determines that all or a part of such Channel is needed for EG Programming. -7- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 (3) Should the City reasonably determine that all or part of such Channel is needed for EG Programming, the City may require Grantee to fully or partially relinquish Grantee's use of said Channel provided that Grantee shall be given not less than sixty (60) days notice to relinquish same. d. The EG Channels shall be under the exclusive management and editorial control of the City. The City shall have sole responsibility for the Programming of the EG Channel(s) provided by Grantee, including without limitation, th'e carriage of Programming on the Channel(s) 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 solely for non-commercial, governmental or educational Programming. The City may designate a representative, such as an access corporation, to use and administer said Channels, with ali of the attendant rights and obligations provided to the City hereunder. e. Grantee shall provide an adequate Local Origination access production studio equipped with sufficient portable and stationary equipment so as to allow production of videotaped and live Programming. The Local Origination studio shall be located and operated within thirty (30) miles of the City. Grantee shall operate and manage the Local Origination Channel, and shall have editorial control over all Programming on the Local Origination Channel. f. Grantee shall provide, at the request of the City and without charge, Drops to existing educational and governmental buildings, institutions and facilities located within Grantee's service area. A Drop shall be provided within six (6) months after the effective date of this Franchise for existing public educational, libraries and governmental facilities and to all existing and future public educational and governmental facilities when Grantee's Cable Television System Plant passes the public facility. Interior wiring of said buildings shall be the responsibility of the building owner, provided that if Grantee is requested to install such wiring, it will do so within a reasonable time at its actual cost of labor and materials and shall invoice the requesting agency. Grantee shall also provide to institutions and facilities so serviced free access to the Basic Service Tier and, if requested by the City, one free connection and free monthly charges for Internet access service for the 'term of the Franchise. Exact placement and request for installation of Drops shall be determined by the institutions involved and shall be designed, to the extent practicable, to minimize construction costs to Grantee. The implementation of the Drop policy shall not require or allow an offset against the franchise fee. g. Equipment. -8- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 (1) Within ninety (90) days of the effective date of this franchise, Grantee shall provide equipment to the City, or its cash equivalent at the City's sole option, to enable the insertion of live or taped programming at City Hall onto the EG channels provided by Grantee. In addition, Grantee shall provide equipment to enable the production of local video programming. Grantee shall provide up to $100,000 for the equipment specified in this Section. Such equipment shall be owned and maintained by the City. Grantee shall be obligated to initially provide training in the utilization of this equipment and to replace said equipment during the term of the franchise should it become obsolete or inoperable. (2) City and Grantee agree that the cost of equipment provided under this section are not franchise fees. Grantee will not separate out the cost related to the equipment provided under this section as a line item on City customer's cable bills. 10. Bonds and Insurance Coverage. a. Performance Bond to City. During the term. of this Franchise, Grantee shall file with the City Clerk and maintain in full force and effect a corporate surety bond or other adequate surety agreement approved by the City Attorney in the amount of Fifty Thousand Dollars ($50,000.00). The bond or agreement shall be so conditioned that in the event Grantee shall fail to comply with any one or more of the provisions of the Tustin City Code or of the Franchise granted to Grantee, then there shall be recoverable jointly and severally from the principal and surety, any damages or loss, or costs suffered or incurred by the City as a result thereof, including reasonable attorneys' fees and costs of any action or proceeding, and including the full amount of any compensation, indemnification, costs of removal or abandonment of any property or other costs which may be in default, up to the full principal amount of such bond.. Said condition shall be a continuing obligation during the entire term of the Franchise and thereafter until Grantee shall have satisfied in full any and all obligations to City, which shall arise out of or pertain to, said Grantee. The surety shall be licensed in California and maintain a Best's Key Ratinq Guide'(latest edition) Financial Size category of VII or better and shall be rated Grade "A" or better. b. Insurance. Grantee, at its sole cost and expense, for the full term of the Franchise (and any extension thereof), shall obtain and maintain at minimum all of the following insurance coverage: (1) Types of Insurance and Minimum Limits. The coverage required herein may be satisfied by any combination of specific liability and excess liability policies. (i) Workers Compensation and Employee Liability Insurance conformance with the laws of the State of California for the statutory limits. in -9- 10 11 12 13 14 15 16 17 18 19 2O 21. 22 23 24 25 26 27. 28 (ii) Grantee's vehicles, including owned, non-owned (e.g. owned by Grantee'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 One Million Dollars ($1,000,000.00) combined single limit per accident for bodily injury and property damage. (iii) . Grantee shall obtain and maintain comprehensive or commercial General Liability .Insurance coverage and shall include, but not be limited to, coverage for premises operation, explosion and collapse hazard, underground hazards, contractual insurance, broad., form property damage, independent contractors, and personal injury liability. The limit of such insurance shall be at least One Million Dollars ($1,000,000.00) combined single limit liability for personal injury and property damage. (iv) Grantee shall obtain and maintain Broadcaster's Errors and Omissions Liability' Insurance in the aggregate annual amount of Five Hundred Thousand Dollars ($500,000.00). (v) City may, by resolution, from time to time, reasonably increase said insurance to the amounts which other contractors operating within the public right-of-way in a manner similar to Grantee and operating in the jurisdiction of City are required to provide so long as said increased coverage is reasonably available. (2) The City and its officers and employees shall be named as additionally insured by endorsement (except for broadcaster's liability coverage and workers compensation) at no cost to the City. (3) Within forty-five (45) days from the effective date of this' Franchise, Grantee shall furnish proof to the City that satisfactory policies of insurance described above are in place issued by companies licensed in California rated Grade "A" or better and Class VII or better by the latest edition of Best.'s Key Rating Guide. (4) Ail insurance policies shall provide that in the event of material change, reduction, cancellation, or non-renewal by the insurance carrier for any reason, not less than thirty (30) days notice will be given to the City by registered mail of one (1) copy of a written notice of such intent to cancel or not to renew the coverage. An authorized agent of such insurance carrier shall provide to the City, on such schedule as is reasonably requested by the City, a certification that ali insurance premiums have been paid and all coverage are in force, if for any reason Grantee fails to obtain or keep my of such insurance in force, the City may, but shall not be required to, obtain such insurance, in which event Grantee shall promptly reimburse the City premium cost therefor plus one and one-half percent (1 1/2%) monthly interest thereon until paid. -10- 10. 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 11. Customer Service. 2 a. Grantee shall meet the customer service standards adopted by the Federal Communications Commission (FCC), the State of California, and any additional standard 3 mutually agreed upon between Grantee and the City. b. in addition, to the extent that FCC or State regulations do not already so provide, ' (1) Grantee shall maintain sufficient service personnel and equipment for Grantee to be able to take action upon customer service calls in the manner specified herein. Grantee's service office shall be open to receive inquiries or complaints for Subscribers during normal business hours, and in no case less than 9'00 a.m. to 5'00 p.m., Monday to Friday, excluding legal holidays, and shall have local, non-toll telephone service for subscribers in the Franchise area during such times; provided, however, that such hours may be lessened upon the prior written consent of the City Manager provided that local, non-toll telephone service continues to be available during such times; and (2) Grantee shall maintain a service repair force sufficient to respond within a reasonable time to any individual interruption of service and also a sufficient installation force to minimize the delay for service installation. Any service complaint from subscribers will be investigated and acted upon as soon as possible; and (3) Grantee shall provide a telephOne answering system to receive all construction and service complaints. The telephone number of the local office shall be listed in. the telephone directories serving Tustin. The telephone service shall be operable and shall possess sufficient capacity to accept complaints twenty-four (24) hours a day, seven (7) days a week; and (4) Grantee shall keep a maintenance service log running a three (3) year period, which will indicate the nature of each service complaint, its location, the date and time it was received, the disposition of said complaint, and the time and date thereof. This log shall be made available for periodic inspection by the City. Grantee shall 'provide a copy of this log within ten (10) days of the written request of the City. 12. Indemnification. a. Grantee shall indemnify and hold harmless City from all damages, penalties, ments and liability of any kind, and defend all claims, actions or causes of action arising as a result of Grantee's operation of the Cable Television System, regardless whether any act or omission complained of is authorized, allowed, or prohibited by the Franchise, to the extent such damages, penalties, judgments, claims, actions or causes of action arise out of or are caused by the act or omission of Grantee, its officers, employees, or agents. Upon demand of City, made by and through the City Manager, Grantee shall appear in and defend City, its officers, employees and agents in any legal action, whether judicial, administrative or otherwise, with respect to which City is entitled to indemnification hereunder. -11- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 b. City agrees to indemnify, and hold harmless Grantee, its affiliates and their respective officers, directors, employees and shareholders from and against any and all damages penalties, judgments and liability of any ki.nd, and defend all claims, actions or cause of action arising as a result of the use of the EG access Channels. This indemnity shall not apply with respect to any Programming provided by Grantee and which is carried on the EG Channels. 13. Periodic Review of Performance and Quality of Service. a. At' City's sole option, City may hold a public hearing at which Grantee shall be present and shall participate, to review the performance and' quality of Cable Television Service of the Cable Television System. The reports required herein regarding Subscriber Complaints, the records of performance tests and the opinion survey report shall be utilized as the basis for review. In addition, any Subscriber may submit comments .or Complaints during the review meetings, either orally or in writing, and these shall be considered. b. Within thirty (30) days after the conclusion of the public hearing, City may issue a report with respect to Cable Television System performance and quality of Cable Television Service. If any noncompliance with the Franchise is found, City may direct Grantee to correct the noncompliance within a reasonable period of time in accordance with the provisions of the Enabling Ordinance. c. Failure of Grantee, after due notice and opportunity to cure, as set forth in the Enabling Ordinance, to correct the noncompliance shall be considered a breach of.the Franchise, and City may, at its sole discretion, exercise any remedy within the scope of this Franchise considered appropriate. 14. Privacy. As of the effective date of this Franchise, Grantee shall not market mailing lists with names and addresses of subscribers unless Grantee has provided Subscribers with notice and an opportunity to delete his or her name from the mailing list. 15. No Recourse Against City. Grantee acknowledges that City would not have granted this Franchise if it were to be liable for monetary damages for any act' performed in granting it. In general, City and Grantee may pursue any remedy at law or equity available, including but not limited to specific performance, for the breach of any provision of this Franchise, except that City, its officials, boards, commissions, agents and employees, shall not be liable in monetary damages to Grantee, or to any successor in interest of Grantee, or to any other Person, and Grantee covenants not to sue for monetary damages or claim any monetary damages based upon any act or omission by the City, its officials, boards, commissions, agents and employees, in the course of reviewing and approving this Franchise or in the process of granting this Franchise. -12- 1 16. Undergrounding and Co-location. In all areas of the City where all electric utility and communications facilities are underground, the Grantee shall place its cables and 2 distribution equipment.underground. When a~'~ existing aerial utilities in any City area are converted to underground construction, such that both electric and communications utilities 3 are underground, the Grantee shall replace aerial facilities with underground facilities 4 concurrently and in cooperation with similar programs of the telephone and power utilities, provided that Grantee is given reasonable notice and access to the telephone and power 5 utilities' facilities at the time such are placed underground. All underground wires or cable of Grantee shall be placed in conduits or other materials approved by the Director of Public 6 Works. Amplifiers in Grantee's transmission and distribution lines may be placed in 7 appropriate pedestals provided that approval has been obtained from the Director of Public Works before excavation. Where conduit facilities are available and co-location of Grantee's 8 Cable Television System facilities with the facilities of other public utility providers is feasible, the City may require Grantee to"co-iocate Grantee's Cable Television System facilities with 9 such other public utility providers in such available conduit facilities. 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 17. Acceptance_. Within thirty (30) days after the effective date of this Ordinance, Grantee shall file with City its written, unconditional, non-contingent acceptance of the Franchise granted by this Ordinance and its agreement to be bound by and comply with all the requirements hereof. The acceptance shall be signed by a person duly authorized to act on behalf of Grantee, shall be notarized, and shall have attached thereto a certified copy of an order by the Board of Directors of Grantee authorizing and directing execution and filing of the acceptance. An acceptance that constitutes a qualified acceptance or places other limits or-conditions therein shall be deemed to be a nullity. Upon the failure of Grantee to file its unconditional, non-contingent acceptance of the Franchise subject to all its terms and conditions within the time period specified above, the Franchise shall be of no further force or effect and there will not be issued an outstanding cable television franchise in City to any of the companies or entities named in this Ordinance. Grantee shall furnish and maintain all bonds and insurance policies required to be furnished pursuant to the Tustin City Code and this Franchise. 18. Severability. If any Section or provision of this Franchise or any ordinance, law, or document incorporated herein by reference is held by a court of competent jurisdiction to be invalid, unconstitutional or unenforceable, such holding shall be confined in its operation to the Section or provision directly involved in the controversy in which such holding shall have been rendered and shall not in any way affect the validity of any other Section or provision hereof. Under such a circumstance, Grantee shall, upon the City's request, meet and confer with the City to consider amendments to the Franchise to meet the original intent of the parties, as the circumstances warrant and unless prohibited by law; provided, however, that Grantee, in its sole and exclusive discretion, is not required to enter an agreement with the City concerning such an amendment. 'Both the City and Grantee agree to be bound by all terms and conditions of this Franchise except as may be finally determined to be unenforceable by a Court of competent and appropriate jurisdiction with proper venue over this Franchise, provided that the City or Grantee need not comply with any term or condition of this Franchise or the Enabling Ordinance which it is contesting in good faith by appropriate proceedings. -13- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 19. More Favorable Conditions. 2 a. In the event City grants another Franchise for Cable Television Service, subsequent to the effective date of this Franchise, which, in the opinion of Grantee, contains 3 material terms or conditions more favorable or less burdensome than those contained in this 4 Franchise, Grantee shall have the right to require that this Franchise be amended to incorporate such more favorable or less burdensome terms or conditions in this Franchise. 5 Upon written request of Grantee, the City and Grantee shall discuss in good faith such amendments as may be required to this Franchise. For purposes of this Section, the phrase 6 "material terms or conditions" includes, but is not limited to: term of Franchise; area covered 7 by the Franchise; Franchise Fees; Cable Television System capacity measured in MHz; number of EG Channels; grants or equipment provided by Grantee to City and public 8 schools, DroPs provided by Grantee at City public buildings and public schools; liquidated damages, insurance, and performance bonds. b. Should Grantee enter into an agreement or franchise with another municipality of the same size or smaller than the City in the Los Angeles Metropolitan Statistical Area which agreement or franchise contains financial or service benefits for such municipality or agency or their constituents which, taken as a whole and balanced with the other terms of such agreement as franchise, are in the City's judgment superior to those in this Franchise (collectively "Superior Franchises"), the City shall have the right to require that Grantee modify this Franchise to incorporate the same or substantially similar superior benefits and such other terms. The benefits of such Superior Franchises shall be made available to the City retroactive to the date that Grantee entered into such Superior Franchises with another municipality. Grantee agrees in each case to give the City written notice within forty-five (45) days after Grantee executes any such'Superior Franchise. 20. Future Laws. City does not have or expect in the foreseeable future to receive sufficient funds with which to defray the costs of administering and regulating the cable television franchise within the City. The ability to finance such costs through franchise fees, pursuant to the provisions of this Franchise, constitutes a material inducement to initiate a cable television program within Tu.stin and to extend the existing Franchise, because City would not be willing to reduce or eliminate other public programs in order to make public funds available with which to defray the cost of administering and regulating the cable television program. Therefore, should any futu.re law or regulation limit or prevent City from imposing a franchise fee in the amount provided for herein, Grantee shall make a good faith effort to obtain any possible waiver or permission to pay the full amounts provided for herein, and to the extent such future law or regulation permits Grantee discretion to make the limitation or prohibition applicable or inapplicable, Grantee shall elect to make the limitation or prohibition inapplicable. If, as a result of any acts of the Federal Communications Commission, the United States Congress, any state or federal court, or any other entity lawfully asserting jurisdiction for the regulation of cable communication systems, any provision or provisions of this Franchise is modified, amended, revoked, redeemed, or changed to result in what constitutes, in the view of City or Grantee, material changes in the provisions and circumstances of the Franchise, the parties shall diligently pursue, in good faith, a reasonable means to preserve the intentions of the parties as expressed in this Franchise. -14- 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 1 21. Remedies. At the time of issuance of this Franchise, it is impractical to reasonably ascertain the total extent of monetary damages that may be incurred as a result 2 of the breach by Grantee of its obligations under the Franchise. Without the provisions of 3 this section, the actual monetary damages for which the Grantee would be liable, could greatly exceed the specified amount of liquidated damages. Therefore, the parties have 4 agreed, after good faith negotiations, to fix the amount of liquidated damages, in lieu of any other monetary damages recoverable by City, as provided herein. If Grantee is in material 5 default under the terms of the Franchise, City shall give written notice of such default to Grantee. Grantee shall have thirty (30) days from receipt of such notice to cure the material 6 default or to agree in writing with City upon a method and time that such default shall be 7 cured. If the material default is not cured within thirty (30) days from the receipt of the notice, or, if such material default is of a nature that reasonably requires longer than thirty (30) days 8 to cure, within such other reasonable time as is reasonably agreed to between the parties, the City Council of City may assess Grantee and Grantee shall be liable for liquidated 9 damages in the sum of Two Hundred Dollars ($200.00) for each calendar day'on which the Grantee is in such material default, from and after the date Grantee fails to cure the material default. Said liquidated damage sum shall be severally applicable to each calendar day of delay in compliance with the provisions of construction 'and separately applicable for each calendar day of delay complying with any other provisions of the Franchise. Notwithstanding anything to the contrary herein provided, such liquidated damages shall in no event exceed the sum of One Hundred Thousand Dollars ($100,000.00) in the aggregate. 22. Alternative Remedies. Neither the termination of the Franchise nor liquidated damages shall be deemed to be the exclusive remedy for breach of the Franchise. Neither the right to assess liquidated damages nor the assessment of liquidated damages shall be deemed to bar or otherwise limit the right of City to obtain judicial enforcement of Grantee's obligations by means at law or in equity. 23. Termination of Franchise for Cause. The following material breaches Of the obligations of Grantee under the Franchise shall constitute grounds for termination of the Franchise by the City Council pursuant to the provisions of the Enabling Ordinance. a. The willful failure to make any payments required under the Franchise and/or to provide City with required information in a timely manner as provided in the Franchise from and after thirty (30) days' written notice from the CitY of Tustin. b. Any other act or omission by Grantee which materially violates the terms, conditions or requirements of the Enabling Ordinance or this Franchise or any order, directive, rule or regulation issued thereunder, and which is not cured within thirty (30) calendar days following mailing to the Grantee written notice of the violation or within such period beyond the thirty (30) calendar days as is reasonable. c. Should the Franchise be terminated as provided herein, any resulting transfer of ownership shall be conditional upon payment of an equitable price for the Franchise to the Grantee for the Franchise, as set forth in the Cable Act, 47 U.S.C. § 537. -15- 4 10 11 12 13 14 15 16 17 18' 19 2O 21 22 23 24 25 26 27 28 24. Termination for Non-Renewal. If renewal of the Franchise is denied, or if termination results from the operation of Section 23 hereof, and City acquires ownership of the cable television system or effects a transfer of ownership to another party, any such acquisition or transfer of ownership shall be conditional upon payment of the fair market value of the Franchise, as set forth in the Cable Act, 47 U.S.C. § 537. 25. Non-Enforcement. Grantee shall not be relieved of any obligation to comply with any of the provisions of the Franchise or any rule, regulation, requirement or directive promulgated thereunder by reason of any failure of City or its officers, agents or emPloyees to enforce prompt compliance. 26. Franchise as Contract. The Franchise shall be deemed to constitute a contract between Grantee and City. Grantee shall be deemed to have contractually committed itself to comply with the terms, conditions and provisions of the Franchise, and with all rules, orders, regulations and determinations applicable to the Franchise which are issued, promulgated or made pur. suant to the provisions of this Franchise. The Franchise shall not be construed to constitute a contract of adhesion. 27. Utility Pole. This Franchise shall not be deemed to expressly or impliedly authorize Grantee to utilize poles owned by the Southern California Edison Company, Pacific Bell or any other public or private utility which are located within the streets, without the express consent of such utility. 28. Force Majeure. Any time limits provided for either party's performance hereunder shall be extended for and throughout such additional period of time as such performance is prevented or delayed due to strikes, lockouts, acts of government beyond the party's reasonable control, acts of God, wars, riots, insurroction or abnormal force of elements or other causes beyond the party's reasonable control; provided, however, that in no event shall any such extension be deemed to have occurred unless (a) the party whose performance is delayed shall have [liven prompt notice to the other party of the occurronce of the event of delay; and (b) tho applicable period or poriods of time within which such other party may exercise its rights hereunder shall be commensurately extended. -16- 29. Effective Date of Ordinance. (30) .days after its passage. This Ordinance shall become effective thirty PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin, California, held on the day of~, 2000. ATTEST: Mayor City Clerk 10 11 12 13 14 15 16 17 18 STATE OF CALIFORNIA ) COUNTY OF ORANGE )§§ CITY OF TUSTIN. ) PAMELA STOKER, City Clerk of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1228 was duly and regularly introduced and read at a regular meeting of the City Council held on the day of ~, 2000, and was given its second reading and duly passed and adopted at a regular meeting held on the day of ~, 2000, by the following vote' AYES: NOES' ABSENT: COUNCILPERSONS' COUNCILPERSONS' COUNCILPERSONS' 19 2O 21 22 23 PAMELA STOKER City Clerk City of Tustin, California 24 25 26 27 28 -17-