HomeMy WebLinkAboutORD FOR ADOPTION 01-03-84 )INANCES FOR ADOPTION
NO. 1
1-3-84
AGENDA ITE]~:
ORDINANCE NO. 902
AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING THE FRAN-
CHISE FOR A CABLE TELEVISION SYSTEM GRANTED TO SIX STAR CABLEVISION
OF TUSTIN, INC. AND APPROVING THE TRANSFER OF OWNERSHIP FROM SIX STAR
CABLEVISION OF TUSTIN, INC. TO UNITED CABLE OF SOUTHERN CALIFORNIA,
LTD.
BACKGROUND:
Ordinance No. 902 had first reading by title only and introduction at
the December 19, 1983, regular meeting.
RECO~I~NDATION:
M. O~ - That Ordinance No. 902 have second reading by title only.
M. O. - That Ordinance No. 902 be passed and adopted. (Roll Call Vote)
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ORDINANCE NO. 902
AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA,
AMENDING THE FRANCHISE FOR A CABLE TELEVISION
SYSTEM GRANTED TO SIX STAR CABLEVISION OF TUSTIN,
INC. AND APPROVING THE TRANSFER OF OWNERSHIP FROM
SIX STAR CABLEVISION OF TUSTIN, INC. TO UNITED
CABLE OF SOUTHERN CALIFORNIA, LTD.
The City Council of the City of Tustin, California, hereby
ordains as follows:
WHEREAS, Ordinance NO. 792 adopted by the City Council
of the city of Tustin on February 5, 1979, granted a non-exclusive
cable television franchise to Six Star Cablevision of Tustin, Inc.,
a corporation; and
WHEREAS, Ordinance No. 813 adopted by the City Council
of the City of Tustin on November 5, 1979, amended said Franchise;
and
WHEREAS, Resolution No. 81-10 adopted by the City
Council of the City of T~ti~ on February 2, 1981, approved the
transfer of certain interests, in Six Star Cablevision of Tustin,
Inc., a corporation; and
WHEREAS,' the six Star Cablevision of Tustin, Inc. has
requested that the City of Tustin approve the changes in ownership
set forth below:
a. The acquisition by communiCom of all the interests
of the limited partners of Six Star Cablevision
Associates, Ltd., a New Jersey limited partnership, in
Six Star Nielson Cablevision, a California general
partnership.
b. The dissolution of Six Star Nielson Cablevision, a
California general partnership.
c. The transfer of all of the shares of Six Star
Cablevision of Tustin, Inc., a corporation, to
CommuniCom, a California corporation.
d. The change of name of Six Star Neilson Cablevision
of Tustin, Inco, a California corporation, to "Communi-
Com of Tustin", a California corporation.
e. The net result and effect of the aforesaid changes
to be that the Franchisee would be Co~ununiCom of
Tustin, Inc., a California corporation, all of the
shares of which will be solely owned by CommuniCom, a
California corporation, all of the shares of which will
be solely owned by Nielson Enterprises, Inc., a
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2 WHEREAS, CommuniCom, a California corporation, has entered
or will enter into, an Agreement of Purchase and Sale with united
3 Cable of Southern California, Ltd., a limited partnership formed
under the laws of the State of Colorado, and pursuant to such
4 Agreement CommuniCom will sell either all of its properties and
assets or its stock to United Cable of Southern California, Ltd.;
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Delaware corporation; and
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WHEREAS, CommuniCom has requested approval by the City of
Tustin to the transfer of ownership of the Franchise to United
Cable of Southern California, Ltd.; and
WHEREAS, representatives of the City of Tustin and
CommuniCom and united Cable of Southern California, Ltd. have
conferred and have concluded that it would be in the mutual best
interests of the City of Tustin and Franchisee to amend the Fran-
chise as hereinafter provided; and
WHEREAS, the City of Tustin is willing to approve the tran-
sfer of ownership of the Franchise to CommuniCom and if the stock
or assets of CommuniCom are acquired by United Cable of Southern
California, Ltd., the transfer of the Franchise to United Cable of
Southern California, Ltd. in accordance with the terms of this
amended Franchise.
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 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 a non-exclusive fran-
chise 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, is
hereby granted to CommuniCom of Tustin, Inc., a California corpora-
tion and upon compliance with the provisions of Section 32 of this
Ordinance, there is hereby granted to UNITED CABLE OF SOUTHERN
CALIFORNIA, LTD., a Colorado limited partnership, hereinafter
referred to as the "Franchisee", 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 predecessor's applica-
tion, dated November 3, 1978, and all supplements and amendments
thereto accepted and approved by the City of Tustin, and (c) the
terms and conditions provided herein.
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.
1 3. Term of Franchise. The term of this Franchise shall be
for a period of twelve (12) years, commencing on the effective date
2 of this ordinance as provided in Section 31 hereof, subject to
termination of the Franchise granted by this ordinance as
.3 hereinafter provided.
4 4. Assignment or Transfer of Franchise. The Franchise
granted herein shall be a privilege to be held in personal trust by
5 CommuniCom of Tustin, Inc., or subject to Section 32 hereof by
United Cable of Southern California, Ltd., a Colorado limited
6 partnership. It cannot in any event be sold, transferred, leased,
assigned or disposed of in whole or in part, either by forced or
7 involuntary sale, or by voluntary sale, merger, consolidation or
otherwise, without prior consent of the City Council of the City of
8 Tustin expressed by resolution, and then only under such conditions
as may therein be prescribed. Any such transfer or assignment
9 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
10 filed in the office of the City Clerk within thirty (30) days after
any such transfer or assignment. Any proposed assignee must show
11 responsibility and capability as determined by the City Council and
must agree to comply with all provisions of the Franchise and
12 Tustin City Code, and, provided further, that no such consent shall
be required for transfer in-trust, mortgage or other hypothecation,
13 in whole or in part, to secure an indebtedness. Such consent sha%l
not be withheld unreasonably.
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Further, inasmuch as Franchisee is a limited partnership
15 whose general partner is UCTC of Southern California, Inc., prior
approval of the City Council, expressed by resolution, shall be
16 required where there is an actual change in control or where owner-
ship of more than ten percent (10%) of the voting stock of the
17] general partner is acquired by a person or group of persons acting
in concert, none of whom already own fifty percent (50%) or more of
18 the voting stock, singly or collectively. Any such acquisition
occurring without prior approval of the City Council shall consti-
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tute a failure to comply with the provisions of this Franchise.
Nothing herein shall restrict the transferability of the interests
of limitd partners in United Cable of Southern California, Ltd.
5. Rates. Pursuant to Article 7, Chapter 4 the
following schedule of rates and charges is hereby approved:
A. INSTALLATION CHARGES
Definition - Standard Installation
A standard installation shall include
installations of aerial drop cable with
fittings up to 150 feet from the cable
television distribution system directly to
the customer's television set.
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A. overhead
(1)
(2)
1 to 150 feet -
Over 150 feet -
$15.00
$15.00 + $1.00
per foot over
150 feet
Be
Underground - A WRITTEN ESTIMATE
FORM MUST BE PROVIDED SUBSCRIBER
(1) Ail
$15.00 + $2.00
per linear foot
of underground
(2)
If subscriber
provides trench,
repaying, back-
filling and
planting
$15.00 up to
150 feet,
$1.75 per
linear foot
of under-
ground in
excess of 150
feet
Additional Outlets and Channel Selectors
A. Additional outlets or channel
selectors - $15.00
B. If separate structures are
involved, 2.A or 2.B applies
4. Installation of House Amplifier
A. If ordered and installed separately
- $15.00
B. If installed at time of first
outlet or any other work is performed on the
premises for which a charge is authorized -
$7.5O
5. Relocation Charge
The charge shall be $15.00 for each
relocated outlet or relocated channel
selector. The charge shall be $7.50 if
relocation is done with other work.
6. Reconnect Charge - $10.00
The $10.00 charge shall apply only when
the Franchisee has previously served the
premises and facilities are in place but
service was disconnected, or in the case of
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apartments, condominiums or townhouses when
service is in place and an individual unit is
connected to the system non-concurrently with
the installation of the system in the
building. This charge also applies to hookup
of individual units on bulk rate of
agreement.
7. Apartments, Hotels, Motels,
Condominiums, Townhouses and Non-Residences
A. Actual estimated cost with written
agreement.
Be
Schools and City-Owned Facilities
Same as provided in Section 5.A.2. hereof.
9. Subscriber Liability for Loss or Damage
to Equipment o__r Facilities
A. Subscribers will be charged for the
loss or damage of any equipment furnished by
Franchisee. ~
B. Franchisee may collect and hold
without the payment of interest a $25.00
deposit as security for each channel
selector.
SERVICE CHARGES:
The charges in this subsection are for
service on all carried UHF and VHF channels
including local origination.
1.
Monthly Rate - Residence
A. First Outlet
B. Additional Outlet
C®
Channel Selectors
In-house Amplifiers
(five or more outlets)
$7.50
$1.50 each
$1.50 each
$4.50 each
Reduced rates would be negotiated with
individual Owners or Leaseholders in
proportion to the number of units involved.
2. Apartment Units, Hotels, Motels,
Condominiums, Townhouses and Non-Residences
on One Billing for All Units Monthly Rate
1 3. Pay Channels
1 pay channel
2 pay channels
3 pay channels
$11.50 per month
$10.00 each per month
$ 9.00 each per month
4 Fees for additional and/or special services shall be as
approved from time to time by resolution of the City Council.
5 Franchisee may charge its subscribers and users less, but not more
than the rates and charges in accordance with the foregoing
6 schedule.
7 Franchisee may increase such rates and charges as
hereinafter provided. Franchisee shall notify the City of Tustin,
8 in writing, of a proposed increase in such rates and charges. The
increase shall be effective sixty (60) days after the City of
9 Tustin has received written notice of such increase, unless prior
to such date the city council of the City of Tustin shall by
10 resolution set the matter for hearing at a meeting of the city
council. If a hearing is set, the City Council shall act to
11 approve, modify or disapprove such increase within sixty (60) days
after the matter is set for hearing. At such hearing, the Fran-
12 chisee may present evidence with respect to the proposed increase
in rates and charges. If th'e city council adopts a resolution
13 setting the proposed increase in rates and charges for hearing, no
rate, charge, service, contract, practice or .rule shall be changed
14 so as to result in an increase in such rates and charges until said
hearing is held and the city council of the City of Tustin has
15 approved such increase in the rates and charges.
16 6. Definition of Gross Revenues. "Gross Revenues" shall
mean all cash, credits, property of any kind or nature or other
17 consideration derived directly or indirectly by the Franchisee, its
affiliates, subsidiaries, and any other person or entity in which
18 Franchisee has a financial interest or which has a financial
interest in the Franchisee, arising from or attributable to
19 operation of the cable television system in the City of Tustin, as
its corporate city limits now and/or hereafter may be.constituted,
20 including, but not limited to:
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a. Revenue from the subscriber network and insti-
tutional network (including Leased Access fees).
b. Advertising revenues.
c. Revenue from the use of studio facilities,
production equipment and personnel.
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d. Revenue from installation, connection and
reinstatement and the provision of subscriber and other
services.
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e. The sale, exchange or cablecast of any programming
developed for Community Use or institutional users.
Interconnection revenues.
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"Gross Revenues" shall include, valued at retail price
levels, the value of any goods, services or other remuneration in
non-monetary form received by the Franchisee or others described
above in consideration for performance by the Franchisee or others
described above of any advertising or other service in connection
with the cable television system.
"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
government.
b. Revenue received directly from the Franchisee by an
affiliate, subsidiary or parent of the Fran6hisee 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
already been included and reported Gross Revenue as
received by the ~ranchisee.
7. 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
promoting, assisting and financing Community Use Programming and
other cable services of a public character, Franchisee shall pay
franchise fees in the amounts prescribed below. The City of Tustin
shall cooperate with the Franchisee in filing with the Federal
Communications Commission and fully supporting a request permitting
payment of the amounts prescribed below.
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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
20 maintained by the City at great expense to its taxpayers, and the
grant to the Franchisee of consent to use such streets and other
21 public rights-of-way is a valuable property right without which the
Franchisee 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 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 Franchise granted pursuant to this ordinance,
the Franchisee shall pay the City the fees provided in this Ordi-
nance.
During the term of the Franchise, the Franchisee shall pay
to City of Tustin an amount equal to five percent (5%) per year of
the Franchisee's annual Gross Revenues.
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Said fees shall be paid semi-annually not later than August
1 and February 1 for the preceding six (6) month period ending,
respectively, June 30 and December 31. Not later than the date of
each required payment, the Franchisee shall file with the City
Clerk of the City of Tustin an 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 out-
side City, during the period for which payment is made.
It is the intent of the City of Tustin to utilize substan-
tial amounts or all of franchise fees imposed hereunder to defray
the cost of local administration of the Franchise, to support the
development and maximum utilization of all community service and
government access channels and to generally encourage development
and use of the cable system to full utilization of potential.
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.
8. Reimbursement o~ City Expenses. After the effective
13 date of this Ordinance, the Franchisee shall pay to the City of
Tustin an amount equal to the cost incurred by the City in
preparing and enacting this ordinance. Such cost includes legal
expenses, City administrative staff expenses and publication
expenses. 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.said statement.
The purpose of this Section is to reimburse City for the
cost incurred by the City of Tustin in preparing and enacting this
ordinance.
9. Future Laws. The City of Tustin does not have or
20 expect in the forseeable future to receive sufficient funds with
which to defray the costs of administering and regulating the cable
21 television franchise within the City. The ability to finance such
costs through franchise fees pursuant to the provisions of Sections
22 7 above, constitutes a material inducement to initiate a cable
television program within the City of Tustin because the City of
23 Tustin would not be willing to reduce or eliminate other public
programs in order to make public funds available with which to
24 defray the cost of administering and regulating the cable
television program.
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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 nevertheless pay
the City of Tustin the same amounts at the same times as are
prescribed by Sections 7 above. The Franchisee shall make a good
faith effort to obtain any possible waiver or permission to pay the
1 full amounts provided for herein, and to the extent such future law
or regulation permits the Franchisee discretion to make the limita-
2 tion or prohibition applicable or inapplicable, the Franchisee
shall elect to make the limitation or prohibition inapplicable.
3 The City of Tustin may, in addition to any other remedies available
to it, treat any reduction of payments as a failure of considera-
4 tion for the Franchise awarded pursuant to this ordinance and may
terminate the Franchise. If, as a result of any acts of the
5 Federal Communications Commission, the United States Congress or
any other entity lawfully asserting jurisdiction for the regulation
6 of cable communication systems, any provision or provisions of this
Franchise as modified, amended, revoked, redeemed, or changed to
7 result in what constitutes, in the view of the City of Tustin,
material changes in the provisions and circumstances of the Fran-
8 chise so granted, the City may elect to (a) amend the Franchise and
all such parts related to such material change, or if said amend-
9 ment is not acceptable to the Franchise~ (b) treat such material
change as a cause for revocation of the Franchise.
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The failure of the City of Tustin to receive the fees
prescribed hereinabove shall be deemed to constitute a substantial
and material failure to comply with the Franchise.
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10. 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
14 other purpose whatsoever.
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11. Establishment and Extension of Service:
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a. 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
continue to proceed with construction and installation
of the cable television system as specified and
described in this Ordinance and Article VII, Chapter 4
of the Tustin City Code and approved by City of Tustin
and shall diligently and without delay carry all con-
struction to full completion.
22 b. Service will commence within 60 days of the effec-
tive date of this Ordinance.
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24 12. Acceptance of Franchise. Within thirty (30) days after
ii the effective date of this ordinance, Franchisee shall file with
I~ the City of Tustin its written, unconditional, non-contingent ac-
25/ ceptance of the Franchise granted by this Ordinance and its agree-
ment to be bound by and comply with all the requirements hereof.
26 The Acceptance shall be signed by a person duly authorized to act
on behalf of the Franchisee, shall be notarized and shall have
27 attached thereto a certified copy of an order by the Board of
Directors of CommuniCom of Tustin, Inc. authorizing and directing
28 execution and filing of the Acceptance, provided, however, that
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1 such acceptance is subject to Section 32 hereof. An Acceptance
which constitutes a qualified acceptance or places other limits or
2 conditions therein shall be deemed to be a nullity. Upon the
failure of~the Franchisee to file its unconditional, non-contingent
3 Acceptance of the Franchise subject to all its terms and conditions
within the time period specified above, the Franchise shall be of
4 no further force or effect and there will be not issued 'and
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 re-
quired to be furnished pursuant to Tustin City Code and this Fran-
chise.
13. 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 Fifty Thousand Dollars
($50,000.00) 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 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
13 during the period o~ construction of the cable television system
within the City of Tustin as prescribed in the Franchise granted by
14 this ordinance. Upon full and final completion of the cable
television system as prescribed in the Franchise granted by this
15 ordinance within the times prescribed in the Franchise, City shall
deliver the said passbook, certificate of deposit or surety bond to
16 Franchisee and execute any appropriate document releasing City's
interest and rights therein to Franchisee. This release shall be
17 contingent upon the full and faithful performance of the Franchisee
of its obligations under the Franchise granted by this ordinance.
18 In the event that Franchisee shall fail to comply with any one or
more of the provisions of the Franchise granted by this ordinance
19 there shall be recoverable from the aforesaid sum or bond any and
all damages or loss suffered by City as a result thereof, including
20 but not limited to the full amount of any compensation, indemnifi-
cation, cost of removal of abandoned property, staff costs in
21 attempting to secure compliance, plus a reasonable allowance for
attorneys' fees and costs, up to the full amount of the aforesaid
22 deposit. Relinquishment of City's interests and rights in the
aforesaid deposit shall also be conditioned upon the deposit with
23 City of a performance bond as provided in the following paragraph.
24 Prior to relinquishment by City of any of its interests and
rights in the deposit described in the preceding paragraph,
25 Franchisee shall file with the City Clerk and shall thereafter,
annually, during the entire term of the Franchise, maintain in full
26 force and effect a corporate surety bond or other adequate surety
agreement approved by the City Attorney in the amount of Fifty
27 Thousand Dollars ($50,000.00). The bond or agreement shall be so
conditioned that in the event the Franchisee shall fail to comply
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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 a
result thereof, including 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 Franchisee shall have satisfied in full any and all
obligations to City which shall arise out of or pertain to said
Franchise.
14. Community Use.
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, 9 A. The Franchisee shall provide Community Use Chan-
nels and Community Use Programming in order to permit the community
10 to design, produce and present programming of local interest and
promote the educational, recreational and character-building oppor-
11 tunities of the viewing public. Community Use, Community Use
Programming and Community Use Channels shall include use, pro-
12 gramming and channels for purposes of non-commercial cablecast
presented by or on behalf o~ the Franchisee~ the City of Tustin,
13 individuals and local community non-profit organizations, which
consist of topics of special interest to the Tustin community or
14 elements thereof, includin~ matters of a political, governmental,
social, religious, educational, cultural, artistic, health-
15 oriented, ethnic, economic, recreational, charitable and philan-
thropic nature, significant part of such programming having been
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locally produced. "Non-commercial" means:
(1) That the content of such programming shall not be
for the purpose of either directly or indirectly
selling any product or service for private gain; and
(2) That the programming shall not be associated with
or interrupted during presentation by commercial
advertising or announcements presented for the purpose
of selling products or services for private gain.
B. To meet its obligations under this Section 14, the
Franchisee's obligations shall include, providing 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 City and the
other entities or individuals served by the cable
television system 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, the Franchisee
shall provide a third such channel to be utilized on
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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 chan-
nels, the Franchisee will provide video and such other
equipment and personnel as is necessary to broadcast on
said channels, at Franchisee's cost.
15. Level of Service and Local Origination. It is the
intent of the City that the Franchisee shall provide as soon as it
is financially feasible a cable television system which at all
times during the Franchise period is equal to the then current
state of the art.
Franchisee shall provide local origination programming as
soon as it is financially feasible to do so as determined by the
City Council in the reasonable exercise of its discretion.
16. -Bi-Directional Interconnect Capability. The system to
be installed by Franchisee shall have bi-diretional interconnect
capabilities and shall be interconnected when technically and
financially feasible to do so as determined by the City Council in
the reasonable exercise of i'ts discretion.
17. Number of Channels. The cable television system
14 installed pursuant to the Franchise granted herein shall consist of
a one (1) cable subscriber network. As soon as it is financially
15 feasible as determined by the City Council in the reasonable
exercise of its discretion, the Franchisee shall add a one (1)
16 cable institutional network. Each of the two (2) cables shall have
a capacity of not less than fifty-two (52) channels.
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18. Remedies. At the time of issuance of this Franchise,
18 it is impractical to reasonably ascertain the total extent of
damages which may be incurred as a result of the breach by
19 Franchisee of its obligations under the Franchise. The factors
relating to the impracticality of ascertaining damages include, but
20 are not limited to, the following:
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a. The fact that: (i) the primary damage resulting
from breaches by the Franchisee of the schedules for
construction of extension of the cable television
system and provision for services will be to members Of
the public who are denied services'or denied quality or
reliable service; (ii) such breaches cause
inconvenience, anxiety, frustration and deprivation of
the benefits of the Franchise to individual members of
the general public in subjective ways and in varying
degrees of intensity which are incapable of measurement
in precise monetary terms; (iii) that services might be
available through the cable television system which are
both necessary and available at substantially lower
costs than alternative services, and the monetary loss
resulting from denial of services or denial of quality
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or reliable services is impossible to calculate in
precise monetary terms, and (iv) the termination of a
Franchise for such breaches, and other remedies are, at
best, means a future correction and not remedies which
make the public whole for past breaches;
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b. The fact that the failure of the Franchisee to make
timely reports will make it difficult in ways which are
not measurable for the City of Tustin to administer the
construction schedule, delay initiation of enforcement
proceedings and impede compliance with the periods
allowed for construction; and
c. The fact of the failure of the Franchisee to file
timely annual reports will deny information necessary
to enable the City of Tustin to expeditiously,
effectively and efficiently administer the Franchise
and exercise its regulatory powers in relation thereto
for the promotion and protection of the public
convenience, health, safety, and welfare.
Without the provisions of this Section, the actual damages for
12 which the Franchisee would be liable, could greatly exceed the
specified amount of liquidated damages. Therefore, the provisions
13 herein for liquidated damages are of benefit to the Franchisee.
14' 19. Liquidated Damages. In its sole discretion, the City
Council of the City of Tustin may assess Franchisee and the
15 Franchisee shall be liable for liquidated damages in the sum of
Five Hundred Dollars ($500.00) for each calendar day on which the
16 Franchisee is in breach and for each material breach of the
provisions of the Franchise. Said liquidated damage sum shall be
17 severally applicable to each calendar day of delay in compliance
with the provisions of construction and separately applicable for
18 each calendar day of delay complying with any other provision of
I the Franchise.
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20. Reduction of Term. In addition to the foregoing
liquidated damages, in its sole discretion, the City Council of the
City of Tustin may reduce the term of the Franchise one (1)
calendar month for each cumulative thirty (30) calendar days in
excess of the first thirty (30) calendar days the Franchisee is in
breach of any of the material provisions of the Franchise.
21. Alternative Remedies. Neither a reduction of the term
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
nor the right to reduce or reduction of the term of the Franchise
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, other than monetary
damages.
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22. Termination of Franchise. The following material
breaches of the obligatiohs 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.
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b. Any other act or omission by the Franchisee which
materially violates the terms, conditions or
requirements of ~he Franchise or any order, directive,
rule or regulati6n issued thereunder and which is not
corrected or remedied within thirty (30) calendar days
following mailing to the Franchise written notice of
the violation or within such period beyond the thirty
(30) calendar days as is reasonable.
23. City's Right to Operate System. In the event the
Franchisee fails 'to operate its cable television system for seven
(7) consecutive days without prior approval by the City Council of
the City of Tustin and for reasons which are not beyond the
Franchisee's control, the Council through its officers, agents,
employees or contractors may, at its option, enter upon the
premises of the Franchisee, occupy such premises and property
14 constituting the cable television system, and operate the system
until such time as the Franchisee presents proof satisfactory to the
I5 City Council that it is ready, willing and able to renew operation
of the system. In operating the system, the City or its contractor
16 shall be vested with the powers of a receiver, and shall be
authorized to contract in the name of the Franchisee, incur
17 expenses in the name of the Franchisee, and take any and all other
actions necessary to enable it to effectuate the purposes of this
18 Section. The costs incurred by the City in undertaking such
operation shall be a charge against the assets of the Franchisee,
19 and the City or its contractor shall be authorized to reimburse
itself for the costs incurred from revenues received during the
20 period of operation.
21 24. No Recourse Against City. Franchisee shall have no
recourse whatsoever against the City of Tustin or its officers,
22 agents, or employees for any loss, costs, expense or damage arising
out of or resulting from any provision or requirement of the
23 Franchise or any rule, regulation, requirement or directive
promulgated thereunder, or because of the enforcement of any
24 provision of the Franchise or any rule, regulation, requirement or
directive promulgated thereunder, or in the event any provision of
25 the Franchise or any rule, regulation, requirement or directive
promulgated thereunder is determined to be invalid.
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25. Non-Enforcement. The Franchisee shall not be relieved
27 of any obligation to comply with any of the provisions of the
Franchise or any rule, regulation, requirement or directive
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1 Tustin or its officers, agents or employees to enforce prompt
compliance.
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26. Franchise as Contract. The Franchise shall be deemed
3 to constitute a contract between the Franchisee and the City of
Tustino The Franchisee shall be deemed to have contractually
4 committed itself to comply with the terms, conditions and pro-
visions of the Franchise, and with all rules, orders, regulations
5 and determinations applicable to the Franchise which are issued,
promulgated or made pursuant to the provisions of this Franchise.
6 The Franchise shall not be construed to constitute a contract of
adhesion.
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Ail terms, 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:
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a. The express terms of this Franchise shall prevail
over conflicting or inconsistent provisions in Article
7 Chapter 4 of the Tustin City Code;
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b. The express terms Of this Franchise shall prevail
over conflictinq or inconsistent provisions in either
the application for the Franchise or the certificate of
acceptance of the Franchise.
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27. 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 Telephone
16 Company or any other public or private utility which are located
lVil within the streets, without the express consent of such utility.
18!, 28. Changes in Law. Should the State of California or any
iiagency thereof, the United States or any Federal agency, or any
~ State or Federal Court require either the City of Tustin or the
19' Franchisee to act in a manner which is inconsistent with any
provisions of the Franchise, the City Council of the City of Tustin
shall be authorized to determine whether a material provision of
the Franchise is affected in relation to the rights and benefits
conferred by the Franchise upon the City Council of the City of
Tustin or the public. Upon such determination, the Franchise shall
be subject to reasonable modification or amendment to such extent
as may be necessary to carry out the full intent and purposes
thereof in relation to the rights and benefits of the City Council,
the City of Tustin or the public. The City Council of the City of
Tustin may terminate the Franchise issued pursuant to the
provisions of this Franchise if it determines that substantial and
material compliance with the Franchise in relation to the rights or
benefits of the City Council, the City or the public has been
frustrated by such a State, Federal or judicial requirement and
cannot be corrected by modification or amendment.
29. Indemnification; Liability Insurance. Franchisee
agrees to and shall hold City and its officers, employees, agents
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1 and representatives free, harmless and shall indemnify and defend
them against and from any and all claims, demands, costs, liability
2 to other kind or nature whatsoever arising out of or from the
Franchise, any extension of any time limits contained in the
3 Franchise, the failure to extend any time limit in the Franchise,
out of the construction, operating, maintenance, program content,
4 royalties or removal or abandoned of the CATV System by Franchisee.
5 Franchisee shall procure and thereafter during the life of
the Franchise shall maintain in full force and effect at
6 Franchisee's sole cost and expense, general comprehensive liability
insurance in an amount not less than One Million Dollars
7 ($1,000,000.00) for injuries, including accidental death, to two
(2) or more persons and in an amount not less than Five Hundred
8 Thousand Dollars ($500,000.00) for injuries, including accidental
death to any person, and property damage liability insurance in an
9 amount not less than Five Hundred Thousand Dollars ($500,000.00)
resulting from any one occurrence, and City shall be named as an
10 additional named insured in said insurance policy, with coverages
to be included in the public liability and property damage policies
11 of broad form contractual and broad form property damage with the
further provision that said policies shall contain a provision that
12 written notice of cancellation or material alteration of said
policies shall be delivered~o City sixty (60) days in advance of
13 the effective date of any such cancell, ation or material alteration.
14 During the period of construction, and at all times
thereafter, Franchisee shall keep all improvements installed by it
15 insured against loss or damage by fire, with extended coverage
endorsement or its equivalent in amounts not less than ninety
16 percent (90%) of the insurable value of the buildings, equipment
and other improvements insured, with loss payable to Franchisee,
17 any lenders of Franchisee which may have a security interest in the
property comprised of the cable television system and City, in
18 accordance with their respective interests therein.
19 30. Severabilit¥. The provisions of Section 1115 of the
Tustin City Code shall not be applicable to the provisions of the
20 Franchise.
21 31. Effective Date of Ordinance. This ordinance shall be-
come effective thirty (30) days after its passage.
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32. Subsequent to the effective date of this ordinance the
23 stock or assets of CommuniCom may be acquired by united Cable of
Southern california, Ltd. The City of Tustin hereby consents to
24 transfer of the franchise to United Cable of Southern California,
Ltd. provided that the following conditions are satisfied. Those
25 conditions are that (i) on or before June 30, 1984, united Cable of
Southern California, Inc. notify the City of Tustin, in writing,
26 that United has acquired the stock or assets of CommuniCom, and
(ii) that within thirty (30) days after the written notification in
27 (i) above that united, file with the City of Tustin, its written
acceptance of the Franchise in accordance with Section 12 hereof.
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of the
PASSED AND ADOPTED at a regular meeting
City of Tustin, California, held on the
· 1983.
ATTEST:'
CITY CLERK
JGR:lw:R:04/08/83
ARW:cj:R:ll/09/83.12
ARW:cj:R:12/13/83.12a
ARW:se:R:12/19/83.12a
of the
MAYOR
City
day
Council
of
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