HomeMy WebLinkAboutConsent Calendar #8 7-6-87TO:
FROH:
SUBJECT:
WILLIAH A~. HUSTON, CITY Iw~NAGER
MAJ~Y E. ,WYNN, CITY CLERK
RESOLUTION NO. 87-79 - CABLE TELEVISION FRANCHISE
RECO~NOATION:
M. O. - That Resolution No. 87-79 be passed and adopted.
AGENDA ITi~!:
RESOLUTIO~ NO. 87-79 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, DECLARING ITS INTENTION TO TRANSFER A NON-EXCLUSIVE
FRANCHISE FOR A CABLE TELEVISION SYSTEM FROM COMMUNICOM OF TUSTIN, A
CALIFORNIA CORPORATION, TO AMERICAN CABLESYSTEM OF CALIFORNIA, INC., A
CALIFORNIA CORPORATION AND TO AMEND THE FRANCHISE FOR A CABLE TELEVISION
SYSTEM
Upon adoption of Resolution No. 87-79, a Public Hearing on the proposed
transfer and amendment of the Franchise for the Cable Television System will
be set for hearing on July 20, 1987, at 7:00 p.m.
MARY E. WY~, CITY ~ERK
1 RI~OI, U~ION NO. 87-79
2
3 A R~-~OnUTION O~ TH~ CI~Y COUNCI~ O~ TH~ CIT~ OF
· U~N~ ~I~IA~ ~D~CL~IRG I~S IN~RN~ION
4 ~SFER A NON-EXCLUSX~ FR~ISE ~R A ~BLE
TELEVISION SYSTE~ FRO~ COM~UNI~ OF TUSTIN~ A
5 ~I~ ~R~TION, ~ AM~I~ ~YS~ OF
~I~ INC.~ A ~I~ ~~TION ~D ~
6 AM~ ~E ~ISE ~R A ~E T~SION SY~E~
7 The City Council of the City of Tustin, California, does
hereby resolve as follows:
8
1. On March 19, 1984, the City Council of the City of
9 Tustin granted a non-exclusive ~ble television franchise purs~nt
to Ordinance No. 905 on March 19, 1984, to Commun~com of Tust~n, a
10 C~ifornia corporation purs~nt to Ordinance No. 905.
11 2. The City Co~cil has re~ived a r~uest to transfer the
non-exclusive franchise for a ~ble tel~ision ~stem from Communa-
l2 ~m of ~t~n, a ~lifornia cor~ration ("Comm~com'), to ~e~n
~blesystems of C~forn~a, Inc., a C~ifornia cor~ration ("~er~-
13 can") and to amend various provisions of the franchise.
14 3. The City Council has considered the proposed transfer
of the non-exclusive fran~ise for a cable television system from
15 Commun~com to American purs~nt to the authority provi~d in, and
all of ~e pr~isions, terms and conditions of Article 7, Chapter 4
16 of the Tustin City Code, Sections 7410, ~t ~.
17 4. The re~rt and recommendation of the City Manager has
~en filed with the City
18
5. The City Co~cil intends, pursuant to the provisions of
19 ~apter 4, ~ticle 7 of the Tustin City Code, to approve the trans-
fer and the amendment of certain provisions of the non-exclusive
20 ~ble television system franchise from Commun~com to American on
the terms and conditions as set forth in the Ordinances of the C~ty
21 of Tustin, and the proposed amended franchise attached hereto as
E~ibit "A" and in~r~rated herein by this reference.
22
6. ~e pro~sed amended franchise set forth in Exhibit
23 proposes to provide cable television service to all properties
within those portions of the incorporated limits of the C~ty of
24 Tust~n in which there is no exclusive fran~ise in effect within a
fifteen (15) year period following approval and authorization to
25 proceed.
26 7. Ame=Ican shall im~se rates consistent with the pr~i-
sions of ~e ~ble Communications Act of 1984, pertinent pr~isions
27 of the Tust~n Municipal Code, as well as pertinent provisions of
the California Government Code, and supplements or amendments
28 thereto, any successor legislation, an~ the regulations which are
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or will be promulgated under such legislation.
8. Copies of the proposed amended franchise may be ob-
tained at the office of the City Clerk of the City of Tustin.
9. That on July 20., 1987, at. 7=00 P.M., in the Council
Chambers of 'the City of Tustin, 300 Centennial Way, Tustin, Cali-
fornia, is hereby fixed as the time and place for a hearing on the
proposed transfer and amendment of the franchise. At such hearing
any persons having an interest or objection' to the transfer and
amendment of such franchise may appear and be heard.
10. The City Clerk is directed to publish this Resolution
at least once within ten (10) days of its passage in T_he TMst_in
PASSED AND ADOPTED at a regular meeting of the City Council
of the City'of Tustin, 'California, held on the day of
...... , 1987.
~ayoz
ATTEST
City Cle£k
(C218)
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EXHIBIT "A"
0P, DINANCE NO.
AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA,
AMENDING THE FRANCHISE FOR A CABLE TELEVISION SYSTEM
GRANTED TO AMERICAN CABLESYSTEMS OF CALIFORNIA, INC.,
A CALIFORNIA CORPORATION
The City Council of the City of Tustin, C~lifornia, hereby
ordains as follows:
WHEREAS, Ordinance No. 905 adopted by the City Council of
the City of Tustin on March 19, 1984, granted a non-exclusive cable
television franchise ("Franchise") to Communicom of Tustin, a Cali-
fornia corporation; and
WHEREAS, Resolution No. 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 Cali-
fornia corporation ("American"); and
WHEREAS, American has requested and the City Council of the
City of Tustin has determined that it is appropriate to amend
various provisions of the Franchise.
The City Council of the City of Tustin DOES ORDAIN AS FOL-
LOWS:
1. Authority for Franchise. This amendment to the non-
exclusive franchise for a cable television system is enacted pur-
suant to the autho.rity provided in, and 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 Cable-
systems of California, Inc., a California corporation, with all the
rights and privileges and subject to all of the terms and condi-
tions of (a) said Article 7, Chapter 4, and (b) to the extent
consistent with the terms and conditions of this Ordinance, Fran-
chisee'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 effec-
tive 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 television service to the
City of Tustin be merged and consolidated in this Franchise.
Each, every and all of the conditions, requirements, limita-
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tions 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 transfer to American of
the ownership of a non-exclusive franchise heretofore granted to
Communicom 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 to American shall
become effective at such time as (1) American shall notify the City
of Tustin, in writing, that it has acquired the assets of Communi-
com; 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. Upon the
filing of the written acceptance of the Franchise by American,
Communicom shall be released from all obligations and liabilities
under the Franchise.
4. Term of Franchise. The term of this Franchise shall be
for a period of fifteen (15) years, commencing on the effective
date of this Ordinance as provided in Section 31 hereof, subject to
termination of the Franchise granted by this Ordinance as herein-
after provided.
5. Assiqnment or Transfer of Franchise. The Franchise
granted herein shall be a privilege to be held in personal trust by
American. 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, mortgage or other hypothecation,
in whole or in part, to secure an indebtedness. Such consent shall
not be withheld unreasonably.
6. Rates. Franchisee shall imposerates 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 legis-
lation. 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 rates
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if, as a result of any acts of the Federal Communications Commis-
sion, 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 City.
7. Definition'of~ross 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 inter-
est 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=
Ae
Be
Revenue from the subscriber network and institutional
network (including Leased Access fees);
Advertising. revenues;
Revenue from the use of studio facilities, production
equipment and personnel;
Revenue from ~nstallation, connection and reinstatement
and the provision of subscriber and other services;
The sale, exchange or cablecast of any programming
developed for Community Use or institutional users;
Interconnection revenues.
"Gross Revenues" shall not include:
Am
Bm
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 govern-
ment;
Revenue received directly from the Franchisee by an
affiliate, subsidiary or parent of the Franchisee or
any 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 al-
ready been included and reported as Gross Revenues
received by the Franchisee.
8. Franchise Fees. For the use of the City streets and
for the purposes of prOViding revenue with which to defray the cost
of regulation arising out of issuance of the Franchise and pro-
moting, assisting and financing Community Use Programming and other
cable services of a public character, Franchisee shall pay fran-
chise fees to the City of Tustin in the amount of five percent (5%)
of Gross Revenues.
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The streets and other public rights-Of-way to be used by
Franchisee in the operation of its system within the boundaries of
the City of Tustin are valuable public properties acquired and
maintained by the City at great expense to its taxpayers, and the
grant to the Franchise of consent to use such streets and other
public rights-of-way isa valuable property right without which the
Franchisee would be required to invest substantial additional capi-
tal. Furthermore, the City will incur costs in administering the
Franchise in the public interest. Thus, in consideration of the
granting and exercise 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 Frs-chise granted pursuant to this Ordinance,
the Franchisee shall pay the City the fees provided in this Ordi-
nance.
Said franchise fees shall be paid quarterly not later than
June 1, September 1, December 1 and March 1 for the preceding three
(3) month period ending, respectively, March 31, June 30, September
30 and December 31. Not later than March 1, the Franchisee shall
file with the City Clerk of the City of Tustin an annual audit
report by a Certified Public Accountant approved by City, of the
operations of Franchisee.which identifies in detail the sources and
amounts of all Gross Revenues received by the Franchisee from all
sources, both inside and outside City. On the date of payment
other than March 1, Franchisee shall file an unaudited report which
identifies all Gross Revenues during the period for which payment
is made.
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 of Tustin may have for further additional sums
payable under the provisions of the Franchise.
9. Reimbursement of City Expenses. The Franchisee shall
pay to the City of Tustin an amount equal to the legal expenses
incurred by the City in preparing, revising, negotiating and en-
acting 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 Bot 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 material inducement to initiate a cable
television program within the City of Tustin because the City of
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Tustin 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 televi-
sion program.
Therefore, should ahy 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 unsble, within a reasonable time after con-
ducting 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 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 ef-
fective date of this Ordinance, 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 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 construc-
tion 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 dili-
gently 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 ac-
ceptance of the Franchise granted by this Ordinance and its agree-
ment 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
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Directors of American, authorizing and directling execution and
filing Acceptance. An Acceptance which constitutes a qualified
acceptance or places other limits or conditions therein shall be
deemed to be a nullity. Upon the f~ilure of the Franchisee to file
its unconditional, non-contingent Acceptance of the Franchise sub-
ject to all its terms and conditions within the time period speci-
fied above, the Franchise shall be of no further force or effect
and there will be not issued an outstanding cable television fran-
chise 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 ($100,000.00) 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 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 prescribd 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 Fran-
chisee. This release shall be contingent upon the full and faith-
ful 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 compensation, indemnification,
cost of removal of abandoned property, staff costs~in attempting to
secure compliance, plus a reasonable 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 de-
posit 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, Fran-
chisee shall file with the City Clerk and shall thereafteer, an-
nually, 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 ($50,000.00). 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 re-
6
1 covetable jointly and severally from the principal and surety, any
damages or loss, or costs suffered or incurred by the City as
2 result thereof, including attorneys' fees and costs of any action
or proceeding, and including the full amount of any compensation,
3 indemnfication, costs of removal or abandonment of any property or
other costs which maybe in default, up to the full principal
4 amount of such bond. Said condition shall be a continuing obliga-
tion during the entire term of the Franchise and thereafter until
5 Franchisee shall have satisfied in full any and all obligations to
City which shall arise out of or pertain to said Franchise.
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15. Co~,,nitv Use.
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A. The Franchisee shall provide Community Use Channels and
8 Community Use Programming in order to permit the community to
design, produce and present programming of local interest and
9 promote the educational, recreational and character-building oppor-
tunities of the viewing public.
10
B. To meet its obligations under this Section 14, the
11 Franchisee's obligations shall include the following:
12 Franchisee shall initially provide one chan-
nel for municipal, educational, and public access
13 purposes to be utilized on a time-shared basis by
the City and the other entities or individuals
14 served by the cable television system operated by
the Franchisee until such time as such one channel
15 is used full time during normal morning, after-
noon, and evening viewing hours, at which time the
16 Franchisee shall provide a second such channel to
be utilized on the same basis, and when that
17 channel is also used full time, the Franchisee
shall provide a third such channel to be utilized
18 on the same basis, which three channels shall be
the total maximum number of channels which the
19 Franchisee shall be required to provide for such
municipal, educational and public access purposes.
20 In order that the City and others may utilize the
educational'and municipal channels, the Franchisee
21 will provide video and such other equipment and
personnel as is necessary to broadcast on said
22 channels, at Franchisee's costs. The sale of
commercial time on said channels is allowed to
23 offset Franchisee's costs of operation, and the
management of program scheduling, and unused chan-
24 nel capacity shall be the responsibility of Fran-
chisee; provided, however, that neither such sale
.. 25 nor such management shall unduly limit City's use
of such channels.
26
The Franchisee, at its expense, shall open a studio in the
27 City for video origination, which may be located in the same loca-
tion as the Franchisee's local business office. The Franchisee
28 shall keep open such studio thereafter for the remaining term of
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· this Franchise. Franchisee shall furnish the studio, at its ex-
pense, 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 channel(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 Fran-
chisee. A copy of all such rules and procedures shall be provided
to the City.
16. 'Level of Service. Franchisee shall use its best ef-
forts to maintain, operate and, where feasible, modify the CATV
system toward the goal that its performance will be in 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. New schools and City facilities in Franchisee~s
service area within City.shall be interconnected when it is techni-
cally and financially feasible to do so, at no cost to City, so
long as said schools and facilities are within 50 feet of an ex-
isting access point. Schools and City facilities in existence as
of the effective date of this Ordinance, in Franchisee~s service
area within City shall be interconnected when it is technically and
financially feasible to do so, at no cost to City. 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 Franchisee shall maintain a service repair force suffi-
cient to respond within a reasonable time to any individual inter-
ruption of service and also a sufficient installation force to
minimize delay for service installation. Any service complaiint
from subscribers will be investigated and acted upon as soon as
possible. Those service problems that are correctible from the
headend station shall be remedied within an eight (8) hour period.
8
1 The Franchisee shall provide a telephone answering system
with a local toll free number to receive all construction and
2 service complaints. The telephone number of the local office shall
be listed in the telephone directories serving City. The telephone
3 service shall be operable ~o accept complaints twenty-four (24)
hours a day, seven (7) days a week.
4
The Franchisee shall keep a maintenance service log for a
5 running three year period which will indicate'the nature of each
service complaint, its location, the date and time it was received,
6 the disposition of said complaint and the time and date thereof.
This log shall be 'made available for periodic inspection by the
7 City.
8 19. 'Number of Channels. The cable television system in-
stalled pursuant to the Franchise granted herein shall consist of a
9 one (1) cable subscriber network with a capacity of not less than
fifty-four (54)~ channels.
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20. Remedies. At the time of issuance of this Franchise,
ll it is impractical to reasonably ascertain the total extent of
damages which may be incurred as a result of the breach by Fran-
12 chisee of its obligations, under the Franchise.
13 Without the provisions of this Section, the actual monetary
damages for which the Franchisee would be liable, could greatly
14 exceed the specified amount of liquidated damages. Therefore, the
parties have agreed, after good faith negotiations, to fix the
15 amount of liquidated damages, in lieu of any other monetary damages
recoverable by the City of Tustin, as provided in Paragraph 22.
16
21. Completion of Construction. The cable television sys-
17 tem constructed pursuant to this Ordinance shall be fully and
completely constructed so as to make service available in a timely
18
manner to all occupied residential dwelling units within the City
of Tustin provided that the Franchisee has been able to obtain
19 reasonable access to all necessary easements and that the extension
of service to such units is otherwise economically and technically
20 feasible.
21 22. Liquidated Damages. If the City believes that the Fran-
chisee is in material default under the terms of the Franchise, the
22 City shall give written notice of such default to the Franchisee.
The Franchisee shall have fourteen (14) days from receipt of such
23 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
24 default is not cured within fourteen (14) days from the receipt of
the notice, or, if such default is of a nature that reasonably
25 requires longer than fourteen (14) days to cure, within such other
reasonable time as is reasonably agreed to between the parties, the
26 City Council of the City of Tustin may assess the Franchisee and
the Franchisee shall be liable for liquidated damages in the sum of
27 Five Hundred Dollars ($500.00) for each calendar day on which the
Franchisee is in such default, from and after the date Franchisee
28 fails to cure the default. Notwithstanding anything to the con-
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trary herein provided, such liquidated damages shall in no event
exceed the sum of Fifty Thousand Dollars ($50,000.00) in the aggre-
gate. 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~exclu-
sire 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 obliga-
tions 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 Franch%se 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 reason-
able.
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. No-Recourse Auainst City. Franchisee shall have no
recourse whatsoever against the City of Tustin or its officers,
agents, or employees for any loss, costs, expense or damage arising
out of or resulting from any provision or requirement of the Fran-
chise or any rule, regulation, requirement or directive promulgated
thereunder, or because of the enforcement of any provision of the
Franchise or any rule, regulation, requirement or directive promul-
gated thereunder, or in the event any provision of the Franchise or
any rule, regulation, requirement or directive promulgated there-
under is determined to be invalid.
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 promul-
10
1- gated thereunder by reason of any failure of the City of Tustin or
its officers, agents or employees to enforce prompt compliance.
2
27. Franchise as Contract. The Franchise shall be deemed
3 to constitute a contract b.etwen the Franchisee and the City of
Tustin. The Franchisee shall be deemed to have contractually
4 committed itself to comply with the terms, conditions and provi-
sions of the Franchise, and with all rules, orders, regulations and
5 determinations applicable to the Franchise which are issued, pro-
mulgated or made pursuant to the provisions of this Franchise. The
6 Franchise shall not be construed to constitute a contracct of
adhesion.
7
All ~erms, conditions and provisions of the contract shall
8 be deemed to be embodied in the Franchise, and conflicts in terms,
conditions or provisions of the Franchise shall be resolved as
9 follows:
10 A. The express terms of this Franchise shall prevail
over conflicting or inconsistent provisions in Article 7,
11 Chapter 4 of the Tustin City code~
12 B. The express terms of this Franchise shall prevail
over conflicting or inconsistent provisions in either the
13 application for the Franchise or the certificate of accep-
tance of the Franchise.
14
28. Utility Poles. This Franchise shall not be deemed to
15 expressly or impliedly authorize the.Franchisee to utilize poles
owned by the Southern California Edison Company, Pacific Bell or
16 any other public or private utility which are located within the
streets, without the express consent of such utility.
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29. Indemnification; Liability Insurance. Franchisee
18 agrees to and shall hold City and its officers, employees, agents
and representatives free, harmless and shall indemnify and defend
19 them against and from any and all claims, demands, costs, liability
to other kind or nature whatsoever arising out of or from the
20 Franchise, any extension of any time limits contained in the Fran-
chise, the failure to extend any time limit in the Franchise, out
21 of the construction, operation, maintenance, program content,
royalties or removal or abandonment of the CATV system by Fran-
22 chisee.
23 Franchisee shall procure and thereafter during the life of
the Franchise shall maintain in full force and effect at Fran-
24 chisee's sole cost and expense, general comprehensive liability
insurance in an amount not less than One Million Dollars
· 25 ($1,000,000.00) for injuries, including accidental death, to two
(2) or more persons and in an amount not less than Five Hundred
26 Thousand Dollars ($500,000.00) for injuries, including accidental
death to any person, and property damage liability insurance in an
27 amount not less than Five Hundred Thousand Dollars ($500,000.00)
resulting from any one occurrence, and City shall be named as an
28 additional named insured in said insurance policy, with coverages
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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 c6nstruction, and at all times there-
after, 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.
30. Severabilit¥. 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
, 1987.
Mayor
ATTEST:
City Clerk
ARW:SDA:cj :R.- 06/30/87 (C219)
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