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HomeMy WebLinkAboutORD FOR INTRODUCTION 02-16-88 ORDINANCES FOR INTRODUCTION . ,~ NO. 1 DATE: FEBRUAI{Y 9, 1988 ~ I TO: FROM: SUBJECT: WILLIAM HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT ENGINEERING DIVISION AMEND CITY ORDINANCE 992 AND APPROVE MERGER OF AMERICAN CABLESYSTEMS OF CALIFORNIA WITH CONTINENTAL GABLEVISION, INC. ,, J RECOMMENDATION: Request the Tustin City Council, at their regular meeting of February 16, 1988, 1) approve the merger of American Cablesystems of California with Continental Cablevision, Inc. which is governed' by City Ordinance 992; 2) M. O. that Ordinance 1002 have first reading by title only; and, 3) M. O. that Ordinance 1002 be introduced. BACKGROUND: In late January 1988, American Cablesystems of California requested the Tustin City _Council approve the merger of the CATV franchise from American Cablesystems of California to Continental Cablevision, Inc. Staff has investigated Continental Cablevision Inc. and found them acceptable. However, it is deemed desirable to amend the language in Ordinance 992 which governs the current franchise with American Cablesystems of California. Staff view these amendments as minor and in the best interest of the community. City At%orney Jim Rourke has drafted Ordinance 1002 to reflect the language amendments to Ordinance 992 as delineated below: Section 17 Bi-Directional Interconnect Capability "The system to be installed by Franchisee shall have bi-directional interconnect capabilities. Ail public schools and City's facilities in Franchisee's service area within City shall be interconnected at the request of the appropriate public agency. If such interconnection is a standard installation, the Franchisee will bear the cost of installation up to 50 feet and the public agency will bear any additional costs of Franchisee for the interconnection. If such 'interconnection is a non-standard installation, Franchisee will bear costs of such installation in an amount equal to the amount it would bear if the installation was standard and the public agency will bear any additional costs of the Franchisee for the interconnection. Ail equipment and staff required to access the system from the facilities will not be the responsibility of the Franchisee." Section 18 Subscriber Service and Complaint Procedures Paragraph 2 be Amended to: "The franchisee shall maintain a service repair force sufficient to respond within twenty-four (24) hours Monday through Friday and within forty-eight (48) hours during a week-end to any individual interruption of service and also a sufficient installation force to perform service installations within ten (10) working days. Service problems that are correctable from the headend station shall be r~medied within an eight (8) hour period." ParaRraph 3 to be Amended to: .... "The .telephone service shall transmit service interruption messages to the service repair force within two (2) hours of receipt of original call between 8:30 A.M. and 8:00 P.M. Monday through Friday and 8:30 A.M. until 5:00 P.M. Saturdays. Ail repair calls received after the designated transmittal time or on Sundays and legal holidays will be transmitted by 8:30 A.M. of the next work day. Paragraph 5 newly added: "At a minimum of once per year, all subscribers will be notified that any inquiries regarding cable television service may be directed to the City cable coordinator with a telephone number and address cited for such inquiries." Bob Ledendecker Director of Public Works/City Engineer Mo~--d~ Buckley - Administrative Assistant 3 9 10 11 12 13 14 15 16 17 ].8 19 2O 21 22 23 24 25 26 27 28 ORDINANCE NO. 1002 AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING THE FRANCHISE FOR A CABLE TELEVISION SYSTEM GRANTED TO CONTINENTAL CABLEVISION, INC., A CORPORATION The City Council of the City of Tustin, California, hereby ordains as follows: WHEREAS, Ordinance No. 905 adopted by the City Council of the City of Tustin on March 19, 1984, granted a nonrexclusive cable television franchise ("Franchise") to Conununicom of Tustin, a California corporation; and WHEREAS, Resolution No. 87-79 adopted by the City Council of the City of Tustin on July 6, 1987, approved the transfer of the Franchise to American Cablesystems of California, Inc., a California corporation ( "American" ); and . WHEREAS, American has requested approval to merge with Continental Cablevision, Inc., a corporation and the City Council of the City of Tustin has determined that it is also appropriate to amend various provisions of the Franchise. The City Council of the City of Tustin DOES ORDAIN AS FOLLOWS: 1. Authority' for Franchise. This amendment to the non-exclusive franchise for a cable television system is enacted pursuant to the authority provided in, and subject to all of the provisions, terms and conditions of Article 7, Chapter 4 of the Tustin City Code, Sections 7410, et seq. 2. Grant of Franchise. Pursuant to the provisions of Article 7, Chapter 4 of the Tustin City Code, the City Council of the City of Tustin hereby grants a non-exclusive Franchise to construct, operate and maintain a cable television system within those portions of the incorporated limits of the City of Tustin in which there is no exclusive Franchise in effect, to American as merged with Continental Cablevision, Inc., a corporation, with all the rights and privileges and subject to all of the terms and conditions of (a) said Article 7, Chapter 4, and (b) to the extent consistent with the terms and conditions of this Ordinance, Franchisee's Application entitled Request For Franchise Transfer From Communicom To American, dated March 24, 1987, and all supplements and amendments thereto accepted and approved by the City of Tustin, and (c) the terms and conditions provided herein. As of the effective .date hereof, this Franchise shall supercede and cancel in its entirety the existing Franchise granted pursuant to Ordinance Nos. 792 and 905, as amended, it being the intent of the parties that the parties' agreements respecting cable~ 9 10 11 12 15 16 17 18 19 2O 21 22 2~ 25 26 27 28 television service to the City of Tustin be merged and consolidated in this Franchise. Each, every and all of the conditions, requirements, limitations and obligations upon Franchisee as set forth in the Tustin City Code are hereby made a part of the Franchise granted herein. 3. Consent to Transfer. Pursuant to the provisions of Article 7, Chapter 4 of the Tustin City Code,. and Ordinance No. 905, the City of Tustin hereby approves the merger with Continental Cablevision, Inc., a corporation, and the transfer of the ownership of a non-exclusive franchise heretofore granted to American to American after its merger with Continental Cablevision, Inc. to construct, operate, and maintain a cable television system within the City of Tustin, together with all the rights and privileges and subject to all of the terms and conditions of (a) said Article 7, Chapter 4, as amended; and (b) to the terms and conditions provided herein (excluding any reference to Franchisee's proposal dated September 28, 1978). The transfer American as merged with Continental Cablevision shall become effective at such time as (1) Continental shall notify the City of Tustin, in writing, that it has merged with Continental and (2) American shall have filed with the City of Tustin its written acceptance of the terms and conditions of the Franchise, in accordance with the provisions of Section 13 hereof. 4. Term of Franchise. The term of this Franchise shall be for the period commencing on the effective date of this Ordinance as provided in Section 31 hereof, and terminating on July 6, 2002, subject to termination of the Franchise granted by this Ordinance as hereinafter provided. 5. Assignment or Transfer of Franchise. The Franchise granted herein shall be a privilege to be held in personal trust by American, a corporation. 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. 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 and must agree to comply with all provisions of the Franchise and Tustin City Code, and, provided further, that no such consent shall be required for transfer in trust, 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mortgage or other hypothecation, in whole or in part, to secure an indebtedness. Such consent shall not be withheld unreasonably. 6. Rates. Franchisee shall only impose rates consistent with the provisions of the Cable Communications Policy Act of 1984, and pertinent provisions of the California Government Code, and any supplements or amendments thereto, any successor legislation, and the regulations which are or will be promulgated under such legislation. Franchisee agrees to provide written notice to City and subscribers not less than sixty (60) days prior to said proposed rate increase. Further, City reserves the right to impose or regulate rates 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 communications systems, such authority is granted to 7. Definition of Gross Revenues. "Gross Revenues" shall mean all cash, credits, property of any kind or nature or other consideration derived directly or indirectly by the Franchisee, its affiliates, subsidiaries, and any other person or entity in which Franchisee has a financial interest or which has a financial interest in the Franchisee, arising from or attributable to operation of the cable teleVision system in the City of Tustin, as its corporate city 'limits now and/or hereafter may be constituted, including, but not limited to: A. Revenue from the subscriber network and institutional network (including Leased Access fees); B. Advertising revenues; C. Revenue from the use of studio facilities, production equipment and personnel; D. Revenue from installation, connection and reinstatement and the provision of subscriber and other services; E. The sale, exchange or cablecast of any- programming developed for Community Use or institutional users; F. Interconnection revenues. "Gross Revenues" shall not include: A. Any taxes on services furnished by the Franchisee which are imposed directly upon any subscriber or user by the United States, State of California or local agency and collected by the Franchisee on behalf of the 1 government; 2 B. Revenue received directly from th~ Franchisee by an affiliate, subsidiary or parent of the Franchisee or any 3 other person or entity in which the Franchisee has a financial interest or which has a financial interest in the· ~ Franchisee, when the revenue received has already been included and reported as Gross Revenues received by the 5il Franchisee. 6 8. Franchise Fees. For the use of the City streets I! and for the purposes of providing revenue with whiCh to 7 defray the cost of regulation arising out of issuance of the II Franchise and promoting, assisting and financing Community 8 Use Programming and other cable services of a public character, Franchisee shall pay franchise fees to the City 9 of Tustin in the amount of five percent (5%) of Gross Revenues. 10 The streets and other public rights-of-way to be used 11 by Franchisee in the operation of its system within the boundaries of the City of Tustin are valuable public 12 properties acquired and maintained by the City at great expense to its taxpayers, and the grant to the Franchise of 13 consent to use such streets and other public rights-of-way is a valuable property right without which the Franchisee' 14 would be required to invest substantial additional capital. Furthermore, the City will incur costs in administering the 15 Franchise in the public interest. Thus, in consideration of the granting and exercise of a Franchise to use the streets 16 and other public rights-of-way as herein defined, for the · operation of a cable television system, and to reimburse 17 City for costs incurred in administering this Franchise granted pursuant to this Ordinance, the Franchisee shall pay 18 the City the fees provided in this Ordinance. 19 Said franchise fees shall be paid quarterly not later than June 1, September 1, December 1 and March 1 for the 20 preceding three (3) month period ending, respectively, March 31, June 30, September 30 and December 31. Not later than · 21 March 1, the Franchisee shall file with the City Clerk of the City of Tustin an annual audit report by a Certified 22 Public Accountant approved by City, of the operations of Franchisee which identifies in detail the sources and 23 amounts of all Gross Revenues received by the Franchisee from all sources, both inside and outside City. On the date 24 of payment other than March 1, Franchisee shall file an unaudited report which identifies all Gross Revenues during 25 the period for which payment is made. 26 No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, 27 nor shall such acceptance of payment be construed as a release of any claim which the City of ~ustin may have for 4 1 6 7 8 9 10 11 12 lO 16 17 18 19 £0 27 28 further additional sums payable under the provisions of the Franchise. 9. Reimbursement of Ci%~ Expenses. The Franchisee shall pay to the Citq{ of Tustin 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 Franchisee. The Franchisee shall pay the amount of such statement to the City within thirty (30) days after receipt of such statement. The purpose of this Section is to reimburse City for the expenses incurred by the City of Tustin in preparing and enacting this Ordinance. 10. Future Laws. The City of Tustin 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 Section 7 above, constitutes a mater~al inducement to initiate a cable television program within ~he City of Tustin because the City of Tustin would not be willing to reduce or eliminate other public programs in order to make public funds available Qith which to defray the cost of administering and regulating the cable televi- sion program. Therefore, should any future law or regulation limit or prevent the City of Tustin from imposing a franchise fee in the amount provided for herein, the Franchisee 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 the Franchisee discretion to make the limitation or prohibition applicable or inapplicable, the Franchisee 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 or any other entity lawfully asserting jurisdiction for the regulation of cable communication systems, any provision or provisions of the Franchise are modified, amended, revoked, redeemed, or changed to result in what constitutes, in the view of either party to this Agreement, 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 Agreement. Should the parties be unable, within a reasonable time after conducting negotiations in good faith, to preserve said intentions, or, within a reasonable time after conducting negotiations in good faith, should the parties be unable to agree on modifications to the language of this Agreement, if any, City may elect to treat such 9 10 il 1§ 15 17 18 19 2O 21 22 23 24 25 25 27 28 failure as a cause for revocation of the Franchise. 11. Limitation of Uses. The cable television system herein franchised shall be used exclusively for the purposes expressly authorized by Article 7, Chapter 4 of the Tustin City Code and no other purpose whatsoever. 12. Establishment and Extension of Service. Upon the effective date of this Ordinance, Franchisee shall diligently proceed or continue to proceed to obtain all necessary permits and authorizations necessary to construct and operate cable television service and shall forthwith proceed or Franchisee shall diligently proceed or continue to proceed to obtain all necessary permits and authori- zations necessary to construct and operate cable television service and shall forthwith proceed or continue to proceed with construction and installation of the cable television system as specified and described in this Ordinance and Article 7, Chapter 4 of the Tustin City Code and approved by City of Tustin and~shall diligently and without delay carry all construction to full completion. 13. Acceptance of Franchise. Within thirty (30) days after the effective date of this Ordinance, Franchisee shall file with the City of Tustin 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 the Franchisee, shall be notarized and shall have attached thereto a certified copy of an order by the Board of Directors of American, authorizing and directling execution and filing of the Acceptance. An Acceptance which constitutes a qualified acceptance or places other limits or conditions therein shall be deemed to be a nullity. Upon the failure of the Franchisee 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 be not issued an outstanding cable television franchise in the City of Tustin to any of the companies or entities named in this Ordinance. Franchisee shall furnish and maintain all bonds and insurance policies required to be furnished pursuant to Tustin City Code and this Franchise. 14. Bonds. Upon the adoption of this Ordinance and the Acceptance of the Franchise by Franchisee as hereinabove provided, and in addition to satisfying all other requirements of the Tustin City Code, Franchisee shall deposit in a bank or savings and loan association in the City of Tustin the sum of One Hundred Thousand Dollars (Si00,000.00) in a joint account in the names of Franchisee and the City of Tustin, or shall file with the City Clerk and maintain in full force and effect a bond, approved by 6 9 lO 11 12 13 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 the City Attorney, in an equivalent amount. The passbook, certificate of deposit or surety bond shall be delivered to and held by the City of Tustin. The cash deposit sum, or the corporate surety bond shall be maintained during the period of construction of the cable television system within the City of Tustin as prescribed by this Ordinance. Upon full and final completion of the cable television system as prescribed in this Ordinance within the times prescribed in the Franchise, City shall deliver the said passbook, certificate of deposit or surety bond to Franchisee and execute any appropriate document releasing City's interest and rights therein to Franchisee. This release shall be Qontingent upon the full and faithful performance of the Franchisee of its obligations under this Ordinance. In the event that Franchisee shall fail to comply with any one or more of the provisions of the Franchise there shall be recoverable from the aforesaid sum or bond any and all damages or loss suffered by City as a a result thereof, including but not limited to the full amount of any compensa%ion, indemnification, cost of removal of abandoned property, staff costs in attempting to secure compliance, plus a ~easonable allowance for attorneys' fees and costs, up to the full amount of 'the aforesaid deposit. Re- linquishment of City's interests and rights in the aforesaid deposit shall also be conditiOned upon the deposit with City of a performance bond as provided in the following paragraph. Prior to relinquishment by City of any of its interests and rights in the deposit described in the preceding paragraph, Franchisee shall file with the City Clerk and shall thereafteer, annually, during the entire term of this Franchise, 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 (S50,000.00). The bond or agreement shall be so conditioned that in the event the Franchisee shall · fail to comply with any one or more of the provisions of the Tustin City Code or of the Franchise~ granted to Franchisee, 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 result thereof, including attorneys' fees and costs of any action or proceeding, and including the full amount of any compensation, indemnfication, 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 Franchisee shall have satisfied in full any and all obligations to City which shall arise out of or pertain to said Franchise. 15. Community Use. A. The Franchisee shall provide Community Use 1 2 3 5 6 7 8 9 10 !1 12 13 14 15 16 17 18 19 20 2]. 22 23 25 26 28 Channels and Community Use Programming in order to permit the community to design, produce and present programming of local interest and promote the educational, recreational and character-building opportunities of the viewing public. B. To meet its obligations under this Section 14, the Franchisee's obligations shall include the following: Franchisee shall initially provide one channel for municipal, educational, and public access purposes to be utilized on a time-shared basis by the Cit~ and the other entities or individuals served by the cable television sys- tem operated by the Franchisee until such time as such one channel is used full time during normal morning, afternoon, and evening viewing hours, at which time the Franchisee shall provide a second such channel to be utilized on the same basis, and when that channel is also used full time, th~ Franchisee shall provide a third such channel to be utilized ,on the same basis, which three channels shall be the total' maximum -number of channels which the Franchisee shall be required to provide for such municipal, educational and public access purposes. In order that the City and others may utilize the educational and municipal channels, the Franchisee will provide video and such other equipment and personnel as 'is necessary to broadcast on said channels, at Franchisee's costs. The sale of commercial time on said channels is allowed to offset Franchisee's costs of operation, and the management of program scheduling, and unused channel capacity shall be the responsibility of Fran- chisee; provided, however, that neither such sale nor such management shall unduly limit City's use of such channels. The Franchisee, at its expense, shall ope~ a studio in the City for video origination, which may be located in the same location as the Franchisee's local business office. The Franchisee shall keep open such studio thereafter for the remaining term of this Franchise. Franchisee shall furnish the studio, at its expense, with such equipment as the Franchisee determines, but at a minimum one color camera, a video recorder, adequate lighting and playback equipment. The Franchisee shall provide such reasonable staff and technical services as may be necessary for the studio, which shall be available for programming for the public access, educational access, and government access channe 1 ( s ). Use of these channels will be governed by the operating rules and procedures which are established by the Franchisee and which are subject to change, at the sole discretion of the Franchisee. A copy of all such rules and procedures shall be provided to the City. 16. Level of Service. Franchisee shall use its best efforts to maintain, operate and, where feasible, modify the CATV system toward the goal that its performance will be in 9 10 11 12 13 15 15 17 18 19 20 21 22 23 24 25 26 27 28 accordance with the highest and best accepted standards of the industry. 17. Bi-Directional Interconnect Capability. The system to be installed by Franchisee shall have bi- directional interconnect capabilities. Ail public schools and City's facilities in Franchisee's service area within City shall be interconnected at the request of the appropriate public agency. If such interconnection is a standard installation, the Franchisee will bear the cost of installation up to 50 feet and the public agency will bear any additional costs of Franchisee for the interconnection. If such interconnection is a non-standard installation, Franchisee will bear costs of such installation in an amount equal to the amount it would bear if the installation was standard and the public agency will bear any additional costs of the Franchisee for the interconnection. Ail equipment and staff required to access the system from the facilities will not be the responsibility of the Franchisee. 18. Subscriber Service and Complaint Procedures. The Franchisee shall have a .business and service office in the City to serve the Tustin cable television system.~ The Franchisee shall also open a billing collection office in the City which may be at the same location. The Franchisee will maintain sufficient service personnel and equipment in such location(s) for the Franchisee to be able to take action upon customer service calls in the manner specified herein. The local office~ including the 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; provided, however, that such hours may be lessened upon the prior written consent of the City Manager provided that local, non-toll telephone service is available during such time. The telephone service, shall transmit service interruption messages to the service repair force within two (2) hours of receipt of the original call between 8:30 a.m. and 8:00 p.m. Monday through Friday and 8:30 a.m. until 5:00 p.m. Saturdays. All repair calls received after these designated transmittal times or on Sundays and legal holidays shall be transmitted by 8:30 a.m. of the next work day. The Franchisee shall maintain a service repair force sufficient to respond within twenty-four (24) hours Monday through Friday and within forty-eight (48) hours during a weekend to any individual interruption of service and also a sufficient installation force to perform service installations within ten (10) working days. Service problems that are correctable from the headend station shall be remedied within an eight (8) hour period. 10 11 12 13 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 At a minimum of once per year, all subscribers will be notified that any inquiries regarding cable television service may be directed to the City cable coordinator with a telephone number and.address cited for such inquiries. The Franchisee shall keep a maintenance service log for a running three 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 Citq~. 19. Number of Channels. The cable television system installed pursuant to the Franchise granted herein shall consist of a one (1) cable subscriber network with a capacity of not less than fifty-four (54) channels. 20. Remedies. At the time of issuance of this Franchise, it is impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by Franchisee of its obligations under the Franchise. Without the provisions of this Section, the actual monetary damages for which the Franchisee would be liable, could greatly exceed bhe specified amount of liquidated damages. Therefore, the parties .have agreed, after good faith negotiations, to fix the amount of liquidated damages, in lieu of any other monetary damages recoverable by the Cit~ of Tustin, as provided in Paragraph 22. 21. Completion of Construction. The cable television system constructed pursuant to this Ordinance shall be fully and completely constructed so as to make service available in a timely manner to all occupied residential dwelling units within the City of Tustin provided that the Franchisee has been able to obtain reasonable access to all necessary easements and that the extension of service to such units is otherwise economically and technically feasible. 22. Liquidated Damages. If the City believes that the Franchisee is in material default under the terms of the Franchise, the City shall give written notice of such default to the Franchisee. The Franchisee shall have fourteen (14) days from receipt of such notice to cure the default or to agree in writing with the City upon a method and time that such default shall be cured. If the default is not cured within fourteen (14) days from the receipt of the notice, or, if such default is of a nature that reasonably requires longer than fourteen (14) days to cure, within such other reasonable time as is reasonably agreed to between the parties, the City Council of the City of Tustin may assess the Franchisee and the Franchisee shall be liable for liquidated damages in the sum of Five Hundred Dollars 10 10 I1 12 13 15 16 17 18 19 2O 21 22 23 .24 25 26 27 '28 ($500.00) for each calendar day on which the Franchisee is in such default, from and after the date Franchisee fails to cure the default. Notwithstanding anything to the contrary herein provided, such liquidated damages shall in no event ~xceed the sum of Fifty Thousand Dollars ($50,000.00) in the aggregate. 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 provision of the Franchise. 23. Alternative Remedies. Neither a 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 the City of Tustin 'to obtain judicial enforcement of the Franchisee's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity. 24. Termination of Franchise. The following material breaches of the obligations of the Franchisee under the Franchise shall constitute grounds for termination of'. the Franchise by the City Council of the City of Tustin: 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 ten (10) days written notice from the City; B. Any other act or omission by the Franchisee which materially violates the terms, conditions or requirements of the Franchise or any order, directive, rule or regulation issued thereunder and which is not corrected or remedied within thirty (30) calendar days following mailing to the Franchisee written notice of the violation or within such period beyond the thirty (30) calendar days, as is reasonable. C. Should the Franchise be terminated out of the provisions of this Section 23, any transfer of ownership shall be conditional upon payment of an equitable price for the Franchise to Franchisee for the Franchise, as set forth in Section 627 of the Cable Communications Act of 1984. 25. Limited Recourse. Franchisee shall have no recourse whatsoever against officers, agents or employees of the City of Tustin for any loss, cost, expense or damage arising out of or resulting from actions, or omissions to act, undertaken by such officers, agents or employees in good faith based upon the provisions of this Franchise, including, without limitation, the promulgation by such officers, agents or employees of rules, regulations, 11 .9 !0 11 12 14 15 16 17 18 19 2O 21 22 24 25 26 27 28 requirements or directives in furtherance of the provisions of this Franchise. 26. Non-Enforcement. The Franchisee 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 the City of Tustin or its officers, agents or employees to enforce prompt compliance. 27. Franchise as Contract. The Franchise shall be deemed to constitute a contract betwen the Franchisee and the City of Tustin. The Franchisee 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 pursuant to the provisions of this Franchise. The Franchise shall not be construed to constitute a contracct of adhesion. Ail terms, conditions and provisions of the contract shall be deemed to be embodied in the Franchise, and conflicts in terms, conditions or provisions of the Franchise shall be resolved as follows: A. The express terms of this Franchise shall prevail over conflicting or inconsistent provisions in Article 7, Chapter 4 of the Tustin City code; - B. The express terms of this Franchise shall prevail over conflicting or inconsistent provisions in either the application for the Franchise or the Certificate of acceptance of the Franchise. 28. Utility Poles. This Franchise shall not be deemed to expressly or impliedly authorize the Franchisee 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. 29. Indemnification; Liability Insurance. Franchisee agrees to and shall hold City and its officers, employees, agents and-representatives free, harmless and shall indemnify and defend them against and from any and all claims, demands, costs, liability to other kind or nature whatsoever arising out of or from the Franchise, any extension of any time limits contained in the Franchise, the failure to extend any time limit in the Franchise, out of the construction, operation, maintenance, program content, royalties or removal or abandonment of the CATV system by Franchisee. Franchisee shall procure and thereafter during the life of the Franchise shall maintain in full force and 12 10 11 12 13 iz~ 15 16 17 18 19 25 24 25 26 27 28 effect at Franchisee's sole cost and expense, general comprehensive liability insurance in an amount not less than One Million Dollars (Si,000,000.00) for injuries, including accidental death,, to two (2) or more persons and in an amount not less than Five Hundred Thousand Dollars ($500,000.00) for injuries, including accidental death to a~y person, and property damage liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000.00) resulting from any 'one occurrence, and City shall be named as an additional named insured in said insurance policy, with coverages to be included in the public liability and property damage policies of broad form contractual and broad form property damage with the further provision that said policies shall contain a provision that written notice of cancellation or material alteration of said policies shall be deliverd to City sixty (60) days in advance of the effective date of any such cancellation or material alteration. During the Period of construction, and at all times thereafter, Franchisee shall keep all improvements installed by it insured against loss or damage by fire, with extended coverage endorsement or its equivalent in amounts not less than ninety percent (90%) of the insurable value of the buildings, equipment and other improvements insured, with loss payable to Franchisee, any lenders of Franchisee which may have a security interest in the property comprised of the cable television system and City, in accordance with their respective interests therein. SO. Severability. The provisions of Section 1115 of the Tustin City Code shall not be applicable to the provisions of the Franchise. 31. Rescission of Prior Consent. The City Council of the City of Tustin hereby rescinds the consent granted by Section 32 of Ordinance No. 905 to the assignment of the Franchise to United Cable of Southern California, Ltd. 32. Effective Date of Ordinance. This Ordinance shall become effective thirty (30) days after its passage. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin, California, held on the day of , 1988. ATTEST: City Clerk JGR:se:R:02/10/88(374.se) ARW:se:R:02/12/88 Mayor 13 DATE February 16, 19843 ~ 'I nter.- C om TO: FROM: S UBJ ECT: WILLIAM A. HUSTON, CITY MANAGER MARY E. WYNN, CITY CLERK ORDINANCE NO. 1000 FOR ADOPTION RECOMItENDATION: M. O. - That Ordinance No. 1000 have second reading by title only. M. O. - That Ordinance No. 1000 be passed and adopted. {Roll Call .Vote) A~ENDA ITEM: ORDINANCE NO. 1000 -'AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING THE TUST[N CITY CODE RELATIVE TO COUNCIL COMPENSAT[ON BACKGROUND: Ordinance No. 1000 had first reading by title only and introduction at the. February 1, 1988, City Council meeting. MARY E. WYNN, CITY CLERK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16~ 18 19 20 21 22 23 24 25 26 27 ORDINANCE NO. 1000 AN ORDINANCE OF THE. CIT~ COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING THE TUSTIN CITY CODE RELATIVE TO COUNCIL COMPENSATION. · . The City Council of the City of Tustin does hereby ordain as follows: 1. Section 1303 of Chapter 3 of Article 1 of the Tustin City Code i$ hereby amended to read as follows: 1303 COMPENSATION OF MEMBERS Members of the City Council shall be paid and receive as compensation, a salary of Four Hundred and Forty Dollars ($440.00) per month. 2. This ordinance and the salary herein provided shall become in force and effect at the time any one or more members of the City Council becomes eligible for such salary increase by virtue of beginning a new term of office and shall thereupon apply to all members of the City Council. PASSSED AND ADOPTED at a regular meeting of the City Council of othe City of Tustin, California, held on the day of , 1988. MAYOR ATTEST: CITY CLERK JGR:se :D: 01/12/88 (238,p2)