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Home My WebLink About13 COX AGREEMENT 11-20-00AGENDA NO. 13 RI DRT MEETING DATE: NOVEMBER 20, 2000 TO: FROM: SUBJECT: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL CITY ATTORNEY COX AGREEMENT FOR PROGRAMMING SERVICES SUMMARY: In its negotiations with the City to renew its Cable Television Franchise, Cox has agreed to provide local programming services at no cost to the City or to Cox's subscribers, and staff is recommending that the Council authorize the Mayor to execute the Agreement on behalf of the City. RECOMMENDATION: Motion to approve the Agreement for Programming Services and authorize the Mayor to execute it on behalf of the City. FISCAL IMPACT: None. BACKGROUND: The attached Agreement for Programming Services provides that if the City renews Cox's franchise, Cox will produce the cablecasting of two local events per year for a period of five years. The City will have ninety days prior to an event in which to notify Cox which event the City designates for cablecasting under this agreement. The Federal Cable Act, as amended by the Telecommunications Act of 1996, authorizes Cox to deduct from franchise fees payments for operating costs relating to support public, edUcational and govemmental access required by a franchise. However, the Federal Communications Commission has opined that a cable operator may voluntarily provide such services without deducting operating costs from franchise fees so long as the services are not required by the franchise. This is the reason why Cox and the City propose to enter into the attached Agreement for Programming Services apart from the Cable Television Franchise renewal. ATTACHMENTS: Agreement ;TIN AGENDA CITY OF TUSTIN AGREEMENT FOR PROGRAMMING SERVICES THIS AGREEMENT is made and entered into this 20th day of November, 2000 by and between COXCOM, INC., a Delaware Corporation doing business as COX COMMUNICATIONS ORANGE COUNTY (hereinafter referred to as "COX") for the benefit of the CITY OF TUSTIN, a California municipal corporation (hereinafter referred to as "CITY") together referred to as "Parties." RECITALS WHEREAS, COX currently is maintaining and operating a Cable Television System covering about one-third of CITY's territory pursuant to a nonexclusive franchise granted by CITY, which expires June 2, 2001; and WHEREAS, COX and CITY are negotiating the renewal of COX's franchise for an additional term of 10 years with a five-year extension, plus an extension of the franchise territory to cover the entire CITY; and WHEREAS, COX has offered to provide local programming services pursuant to this Agreement at no cost to CITY or to COX's subscribers within CITY, as an additional benefit to CITY's residents and as an additional inducement for the foregoing franchise renewal terms and extended territory. NOW, THEREFORE, based on the mutual covenants and promises herein, the parties agree as follows: AGREEMENT 1. PROGRAMMING SERVICES AND TERM. Provided that COX's franchise is renewed, COX agrees to produce, or provide for the production of, at no cost to CITY the cablecasting on CITY's local channel of two (2) local events per year for a period of five (5) calendar years commencing on January 1, 2001 and ending December 31, 2005. Each programming year shall commence on January 1 of each year and end on December 31 of the same year for the full term hereof. CITY shall notify COX at least ninety (90) days in advance of each event CITY designates for cablecasting during each one-year period for the term of this Agreement. 2. BROADCASTING. CITY may require COX to broadcast each event within five (5) days of the event, to be broadcasted at least two (2) times per week for a period of two (2) weeks. 128113v l ~ ] '"' Programming Agreement 3. NO PASS-THROUGH TO SUBSCRIBERS. COX agrees that the cost of production services provided under this Agreement are not franchise fees. COX shall not separate out the cost related to the services hereunder as a line item on CITY customer's cable bills and charge customers for such services. 4. COPYRIGHT. CITY shall maintain the master copies of the productions provided for hereunder, and COX hereby assigns all copyrights and ownership rights to CITY of same. To the extent required, upon CITY's request, COX shall execute appropriate documents to assign to CITY the copyright to the productions provided for hereunder. Notwithstanding the foregoing, COX may appropriately edit the productions to reflect COX and all contributing parties as producers, directors and supporting personnel, associations or organizations, as the case may be. 5. EMPLOYEES/SUBCONTRACTORS. COX may utilize qualified employees or subcontractors to perform .any or all of its duties hereunder. COX shall assign only competent personnel to perform services pursuant to this Agreement. 6. INDEPENDENT CONTRACTOR. COX is acting as an independent contractor providing the services under this Agreement and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and COX. 7. NOTICE. All notices under this Agreement shall be in writing and shall be delivered by personal service or by certified or registered mail, postage prepaid, return receipt requested, of the parties. Any written notice to any of the parties required or permitted hereunder shall be deemed to have been duly given on the date of service if served personally or if served by facsimile transmission (with confirmation of receipt), or seventy-two (72) hours after-the mailing. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand or request sent. Notices of the parties shall be addressed as follows: To COX Cox Communications Orange County 29947 Avenida De Las Banderas Rancho, Santa Margarita, CA 92688 ATTN: General Manager Fax No: (949) 546-3403 With a copy to: Cox Communications, Inc. 1400 Lake Hearn Drive Atlanta, GA 30319 ATTN: Legal Department 128113vl Programming Agreement To CITY City of Tustin Attn.: City Clerk 300 Centennial Way Tustin, CA 92780-3767 Fax No. (714) 832-6382 Each party shall provide the other party with telephone and written notice of any change in address as soon as practicable. 8. INDEMNITY. COX shall defend, hold harmless, and indemnify CITY as to any and all claims, judgments, liabilities or damages for personal injuries and property damage directly arising out COX's performance under this Agreement, including by way of illustration but not limitation, any claim by any performer covered or included in the productions hereof. 9. NO THIRD-PARTY RIGHTS. The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation, or undertaking established.herein. 10. GOVERNING LAW/EXCLUSIVE VENUE. This Agreement shall be governed and construed in accordance with the laws of the State of California and exclusive 'venue shall be in the County of Orange, whether litigation ensues in State or Federal court. 11. SEVERABILITY. If any provision of this Agreement shall be determined to be contrary to law or unenforceable, the remaining provisions shall, at the option of the party who would have been benefited by such unenforceable provision, be severable and enforceable in accordance with their terms. 12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement amount the parties. No changes of, modification to, or additions to this Agreement shall be valid unless the same shall be in writing, signed by all parties hereto and made in accordance with the Provisions hereunder. 13. DEFAULT. In the event of either party's default hereunder, the other party shall have available all remedies at law or in equity not otherwise provided for herein, including by way of illustration but not limitation, suits for injunctive or declaratory relief, specific performance, relief in the nature of mandamus, or action for damages. All remedies, including the remedies specified in this Agreement, shall be cumulative and not exclusive of one another, and the exercise of any one or more of said remedies shall not constitute a waiver or election with respect to other available remedy. [SIGNATURE PAGE FOLLOWS] 128113vl -3- Programming Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY OF TUSTIN COXCOM, INC. Jeffery M. Thomas Mayor Leo Brennan V.P. & General Manager Attest: Pamela Stoker City clerk Approve as to form: Lois E. Jeffrey City Attorney 128113vl Pro~m'amming Agreement