HomeMy WebLinkAboutCC RES 88-1310
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO.
88-13
A RESOLUTION OF THE. CITY COUNCIL OF THE
CITY OF TUSTIN, CALIFORNIA, APPROVING A
MERGER OF AMERICAN CABLESYSTEMS OF
CALIFORNIA AND CONTINENTAL CABLESYSTEMS
CORPORATION
WHEREAS, American Cablesystems of California,
California corporation ("American") is the holder of
television franchise granted pursuant to Ordinance No.
Inc. , a
a cable
905; and
WHEREAS, American has advised the City that its parent
corporation, American Cablesystems Corporation, a Delaware
corporation ("ACC") would be merged into Continental
Cablesystems Corporation ("Continental") whereby ACC would be
come a wholly owned subsidiary of Continental; and
WHEREAS, Section 5 of Ordinance No. 905 requires approval
by the City Council of the City of Tustin for the holder of the
cable television franchise to be merged with another entity;
and
WHEREAS, American has requested such approval pursuant to
Section 5 of said Ordinance to be effective on or before
February 29, 1988; and
WHEREAS, City has requested certain modifications to the
cable television franchise which modifications are set forth in
Ordinance No. 1002 which is attached hereto as Exhibit "A"; and
WHEREAS, American has no objection to
as contained in Exhibit "A"; and
said modifications,
WHEREAS, the City
approve said merger.
Council may act, by Resolution, to
NOW, THEREFORE,
City of Tustin that:
BE IT RESOLVED by the City Council of
the
1. The City Council hereby approves the merger of
American and ACC with Continental so that ACC will become a
Wholly owned subsidiary of Continental.
PASSSED AND ADOPTED at a regular meeting of the City
C.ouncil of the City of Tustin, California, held on the 16th day
of February, 1988.
-/ - U~4AYoR !
ATTEST:
ITY CL~K
10
11
12
13
14
15
16
17
18
19
2O
21
25
26
ORDINANCE NO. 1002
AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING THE
FRANCHISE FOR A CABLE TELEVISION SYSTEM GRANTED TO
AMERICAN CABLESYSTEMS OF CALIFORNIA, 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 Tus~in on March 19~ 1984, gran%ed a
non-exclusive cable television franchise ( "Franchise" ) to
Communicom of Tus~in, 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 Tust±n has determine~ that it is
also appropriate to amend various provisions of the
Franchise.
The City Council of the City of Tus~in 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 sub3ect
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
Franch±se to construct~ operate and maintain a cable
television system within those portions of the incorporated
limits Of the Cit~ 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 sub3ect 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 Franchi.se
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
10
11
13
14
15
16
17
18
19
~0
~4
~5
~6
~7
~8
television service to the Ci~ 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
~ranted 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 ~ranted to American to American after
its mer~er 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 Tus%in 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 3.1 hereof, and
terminatin~ on July 6, 2002, sub3ect to termination of the
Franchise ~ranted 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,
~'! .,'.
,.
:
,
..
:
.
.~.
~ "'N
. . ,
['. .
~ .~ ,.., '~"
.
i ''
, .
t.
10
11
12
13
1.4.
15
16
17
18
19
2O
2~
22
24
25
26
27
28
,.
mortgage or other hypothecation, in
secure an indebtedness. Such consent
unreasonably.
whole or in part, to
shall not be withheld
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 writ'ten notice to
Cit~ 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
City.
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 TusCin, 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
production equipment and
from the use of studio facilities;
personne 1;
D ·
reinstatement
services;
Revenue from installation, connection and
and the provision of subscriber and other
E ·
programming
users;
The sale, exchange
developed for Community
or cablecast of any
Use or institutional
F. Interconnection revenues.
"Gross Revenues" shall not include'
A. Any taxes on
Franchisee which are imposed
user by the United States,
services furnished by the
directly upon any subscriber or
State of California or local
10
11
13
14
15
16
17
18
19
~0
~4
26
28
B. 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 already 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 providin~ revenue with which to
defray the cost of regulation arisin~ 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 to the City
of Tustin in the amount of five percent (5%) of Gross
Revenues.
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
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 Ordinance.
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
agency and. collected by the Franchisee on behalf of the
government;
further additional sums payable under the provisions of the
1 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.,
ne~otiatin~ and enacting this Ordinance and matters directly
related thereto. The City shall prepare a statement
a~gregatin~ 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.
7 The purpose of this Section is to reimburse City for
the expenses incurred by the City of Tustin in preparin~ and
8 enactin~ this Ordinance.
9 10. Future Laws. The City of Tustin does not have
or expect in the foreseeable future.to receive sufficient
10 funds with which to defray the costs of administering and
regulating the cable television franchise within the Cit¥o
11 The ability to finance such costs through franchise fees
pursuant to the provisions of Section 7 above, constitutes a
1~ material inducement to initiate a cable television program
within the City of Tustin because the City of Tustin would
1~ not be willin~ to reduce or eliminate other public pro~rams
in order to make public funds available with which to defray
14 the cost of administerin~ and regulatin~ the cable televi-
sion pro,ram.
18
Therefore, should any future law or regulation limit
16 or prevent the City of Tustin from imposing a franchise fee
in the amount provided for herein, the Franchisee shall make
17 a ~ood faith effort to obtain any possible waiver or
permission to pay the full amounts provided for herein, and
18 to the extent such future law or regulation permits the
Franchisee discretion to make the limitation or prohibition
19 applicable or inapplicable, the Franchisee shall elect to
make the limitation or prohibition inapplicable. If, as a
~0 result of any acts of the Federal Communications Commission,
the United States Congress or any other entity lawfully
~1 assertin~ 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 A~reement, material chan~es in the provisions
and circumstances of the Franchise the par'ties shall
~4 diligently pursue, in 9ood faith, a reasonable means to
preserve the intentions of the parties as expressed in this
~5 Agreement. Should the parties be unable~ within a
reasonable time after conducting negotiations in 9ood faith,
~6 to preserve said intentions, or, within a reasonable time
after conductin~ negotiations in ~ood faith~ should the
parties be unable to agree on modifications to the language
this A~reement, if any, City may elect to treat such
10
11
13
14
15
16
17
18
19
20
~6
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
~ranted by this Ordinance and its a~reement to be bound by
and comply with all the requirements hereof. The Acceptance
Shall be si~ned 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, authorizin~ and directlin~
execution and filin~ 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 satisfyin~ 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 3oint account in the names of Franchisee
and the Cit~ of Tus~±n, 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,
1 certificate of deposit or surety bond shall be delivered to
and held by ~he City of Tustin. The cash deposit sum, or
the corporate surety bond shall be maintained durin~ ~he
period of construction of the cable televi.sion 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, C±~¥ shall deliver the said passbook~
5 certificate of deposit or surety bond to Franchisee and
execute any appropriate document releasin~ City's interest
6 and rights therein to Franchisee. This release shall be
contingent upon the full and faithful performance of the
? Franchisee of its obligations under this Ordinance° In %he
event that Franchisee shall fail to comply with any one or
8 more of the provisions of the Franchise there shall be
recoverable from the aforesaid sum or bond any and all
9 damages or loss suffered by City as a a result thereof,
includin~ but not limited to the full amount of any
10 compensation, indemnification, cost of removal of abandoned
property, staff costs in attempting to secure compliance,
11 plus a reasonable allowance for attorneys' fees an~ costs~
up to the full amount of the aforesaid deposit. Re-
12 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.
14
Prior to relinquishment by City of any of its
15 interests and rights in the deposit described in the
precedin~ paragraph, Franchisee shall file with the City
16 Clerk and shall thereafteer, annually, during the entire
· term of this Franchise, maintain in full force and effect 'a
17 corporate surety bond or other adequate surety a~reement
approved by the City Attorney in the amount of Fifty
18 Thousand Dollars ($50~000.00). The bond or a~reement shall
be so conditioned that in the event the Franchisee shall
19 fail to comply with any one or more of the provisions of the
Tustin City Code or of the Franchise ~ranted 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,
includin~ 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
~4 condition shall be a continuing obligation during the entire
term of the Franchise and thereafter until Franchisee shall
~5 have satisfied in full any and all obligations to City which
shall arise out of or pertain to said Franchise°
~6
15. Community Use.
A. The Franchisee shall provide Community Use
Channels and Community Use Pro~rammin~ in order to permit
1 the community to design, produce and present pro~rammin~ of
local interest and promote the educational, recreational and
character-buildin~ opportunities of the viewin~ public.
B. To meet its obligations under this Section 14,
the Franchisee's obligations shall include the following:
Franchisee shall initially provide one channel
5 for municipal, educational, and public access purposes to be
utilized on a time-shared basis by the City and the other
6 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 durin~ normal morning, afternoon,
and even±n~ viewin~ hours, at which time the Franchisee
8 shall provide a second such channel to be utilized on the
same basis,, and when that channel is also used full time,
9 the Franchisee shall provide a third such channel to be
utilized on the same basis, which three channels shall be
10 the total maximum number of channels which the Franchisee
shall be required to provide for such municipal, educational
11 and public access purposes. In order that the City and
others may utilize the educational and municipal channels,
12 the Franchisee will provide video and such other equipment
and personnel as is necessary to broadcast on said channels,
1~ at Franchisee's costs. The sale of commercial time on said
channels is allowed to offset Franchisee's costs of
14 operation, and the management of pro,ram scheduling, and
unused channel capacity shall be the responsibility of Fran-
15 chisee; provided, however, that neither such sale nor such
management shall unduly limit City's use of such channels.
16
The Franchisee, at its expense, shall open a studio
17 in the Cit~ for video origination, which may be located in
the same location as the Franchisee's local business office.
18 The Franchisee shall keep open such studio thereafter for
the remainin~ term of this Franchise. Franchisee shall
19 furnish the studio, at its expense, with such equipment as
the Franchisee determines, but at a minimum one color
20 camera, a video recorder, adequate li~htin~ 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 programmin~ for the
~2 public access, educational access, and ~overnment access
channel(s).
Use of these channels will be ~overned by the
operatin~ rules and procedures which are established by the
Franchisee and which are sub3ect to chan~e, at the sole
~§ discretion of the Franchisee. A copy of all such rules and
procedures shall be provided to the Cit~.
Z6
16. Level of Service. Franchisee shall Use its best
~7 efforts to maintain, operate and, where feasible, modify the
CATV system toward the goal that its performance will be in
10
11
13
14
15
16
17
18
19
~0
21
2,5
2.4
~5
26
28
accordance with the highest and best accepted standards of
the industry.
17. Bi-Directional Interconnect Capabil±tyo The
system to be installed by Franchisee shall have bi-
directional interconnect capabilities. All 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 a~ency 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. All
equipment and staff required to access the system from the
facilities will not be the responsibility of the Franchisee.
18. Subscr. uiber.Servi..ce 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 Cit~ 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 complain'ts 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.
8
10
11
13
14
15
16
17
18
19
£0
~4
~5
26
~8
At a minimum of once per year, all subscribers will be
notified that any inquiries re~ardin~ 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 lo~
for a runnin~ three ~ear 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 lo~ shall be made available
for periodic inspection by the City.
19. Number of Channels. The cable television system
installed pursuant to the Franchise ~ranted 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 ~reatly exceed the specified amount of liquidated
damages. Therefore, the parties have a~reed, after ~ood
faith negotiations, to fix the amount of liquidated damages,
in lieu of any other monetary damages recoverable by the
City of Tustin, as provided in Paragraph 22.
21. Completion of Construction. The cable
television system constructed pursuant to this Ordinance
s'hall be fully and completely constructed so as to make
service available in a timely manner to all occupied
residential dwellin~ units within the Cit~ of Tust±n
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. ~±qu±dated Damages. If the Cit~ believes that
the Franchisee is in material default under the terms of the
Franchise, the C±t~ shall ~ive 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 a~ree in writin~ with the C±t¥ 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
11
12
13
14
15
16
17
18
19
21
~4
~5
26
(8500.00) for each calendar day on which the Franchisee is
in such default, from and after the date Franchisee fails to
cure the default. Notwithstandin~ anything to the contrary
herein provided, such liquidated damages shall in no event
exceed the sum of Fifty Thousand Dollars ($50,000°00) in the
a~re~ate. 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 complyin~ 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 Tus~in to obtain ~udicial
enforcement of the Franchisee's obligations by means of
specific performance, injunctive relief, mandate or other
remedies at law or in equity.
24. Terminat±on of Franchiseo The following
material breaches of the obligations of the Franchisee under
the Franchise shall constitute ~rounds 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
mailin9 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 o'wnership
shall be conditional upon payment of an equitable price for
the Franchise to Franchisee for the Franchise, as se~ 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
arisin9 out of or resulting from actions, or omissions to
act, undertaken by such officers, agents or employees in
9cod faith based upon the provisions of this Franchise,
including, without limitation, the promulgation bM such
officers, agents or employees of rules, regulations,
11
requirements or directives in furtherance of the provisions
1 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 e.nforce prompt compliance.
27. Franchise as Contract. The Franchise shall be
6 deemed to constitute a contract betwen the Franchisee and
the C±t¥ of Tustin. The Franchisee shall be deemed to have
7 contractually committed itself to comply with the terms,
conditions and provisions of the Franchise, and with all
8 rules, orders, regulations and determinations applicable to
the Franchise which are issued, promulgated or made pursuant
9 to the provisions of this Franchise. The Franchise shall
not be construed to constitute a contracct of adhes±on~
10
All terms, conditions and provisions of the contract
11 shall be deemed to be embodied in the Franchise, and
conflicts in terms, conditions or provisions of the
12 Franchise shall be resolved as follows'
1~ A. The express terms of this Franchise shall
prevail over conflictin9 or inconsistent provisions in
14 Article 7, Chapter 4 of the Tustin City code;
1~ B. The express terms of this Franchise shall
prevail over conflictin~ or inconsistent provisions in
16 either the application for the Franchise or the certificate
of acceptance of the Franchise.
17
28. Utility Poles. This Franchise shall not be
18 deemed to expressly or impliedly authorize the Franchisee to
utilize poles owned by the Southern California Edison
19 Company, Pacific Bell or any other public or private utility
which are located within the streets, without the express
~0 consent of such utility.
29. Indemnification; Liability Insurance.
Franchisee agrees to and shall hold City .and its officers,
~2 employees, agents and representatives free, harmless and
shall indemnify and defend them a~ainst and from any and all
~ claims, demands, costs, liability to other kind or nature
whatsoever arisin~ out of or from the Franchise, any
~4 extension of any time limits contained in the Franchise, the
failure to extend any time limit in the Franchise, out of
~5 the construction, operation, maintenance, program content,
royalties or removal or abandonment of the CATV system by
Z6 Franchisee.
Franchisee shall procure and thereafter durin~ the
life of the Franchise shall maintain in full force and
~8
12
10
11
12
13
15
16
17
18
19
20
21
26
effect at Franchisee's sole cost and expense, general
comprehensive liability insurance in an amount not less than
One Million Dollars ($1,000,000.00) for injuries, includin~
accidental death, to two (2) or more persons and in an
amount not less than Five Hundred Thousand Dollars
($500,000.00) for in3uries, includin~ accidental death to
any 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 broa~ 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.
Durin~ the period of construction, and at all times
thereafter, Franchisee shall keep all improvements installed
by it insured a~ainst 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
buildin~s, 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. Severability. The provisions of Section 1].15 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 9ranted by
Section 32 of Ordinance No. 905 to the assignment of the
Franchise to United Cable of Southern Californ±a~ Ltd~
32. Effective Date of Ordinanceo 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
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §
CITY OF TUSTIN )
MARY E. WYNN, City Clerk and ex-officio Clerk ol~ the City Council of the City of
Tustin, California, does hereby certify that the whole number oi~ the members of
the City Council of the City of Tustin is five; that the above and foregoing
Resolution No. 88-1~)was duly and regularly introduced, passed and adopted at an
adjourned regul~ar~meeting of the City Council held on the 16th_ day of February_,
. _
1988, by the following vote'
AYES · COUNCILPERSONS' Edgar, Hoesterey, Kelly, Kennedy, Prescott
NOES · COUNCILPERSONS' None
ABSENT- COUNCILPERSONS' None
City of Tusti~d' Cal i fohhi a