HomeMy WebLinkAboutCC RES 87-079,-
3
4
7
9
10
1!
12
13
14
15
16
17
18
20
2'1
23
24
25
27
.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY 0F
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
The City Council of the City of Tustin, Californ~.a, does
he=e by resolve as follows:
1.. On Ma=ch 1~, 1984, the City Council of the City of
Tustin g=anted a non-exclusive cable television franchise pursuant
to O=d~nance No. 905 on Ma=~h 19, 1984, to Commun~om of Tust~n, a
Cal~fo=n/a co=po=at,on pursuant to O=d~nance No. 905.
..
2. The City Council has =eceived a request to transfer the
non-exclusive f=anchise fo= a cable television system ~rom Commun~-
corn of Tustin, a California co=po=ation ('Commanioom'), to American
Cahlesystems of Cal~fo~n~-~, In~-~ a California corpo=ation
can") and t.o anencl various p=ov~sions of the f
ranch~se.
,
3. The City Council has considered the proposed transfer
of the non~exclusive franchise for a cable television system from
Communicom ~o American pursuant to ~he authority p=ovided in, and
all of the p~ov~sions, re=ms and cond~tions of Article 7, Chapter 4.
of the Tustin City Code, Sections 7410,
·
4-. The repo=t and recommendation of the City' Manager has
been filed wit. h the City Council.
$. The City Co uncil intends, pu= suant t o the pr ov isions of
Chapte~ 4, A~ticle 7 of the Tustin City Code, to approve the trans-
fe=. and the amendment of ce=t. ain p=ovisions of the non-exclusive
cable television system franch/se from Communicom to A e=ican
the terms and conditi, ons as set fo=th in the Ordinances of the
of Tustin, and the proposed amen ded franchise attached hereto as
Exhibit UA' and inco=po=a~ed he=ein by this reference.
·
6.. ~he proposed amended franchise set forth in Exhibit
p=oposes t.o prov~e cable t. elevision service ~.o all properties
within those po~ions of ~he incorporated limits of ~he City of
Tustin in which there is no exclusive franchise in effect within a
fifteen (15) year period following approval and authorization to
pZoceed.
-~,.. Amezican shall impose rates consistent with the provi-
sions of the Cable Communications Ac~ .of 1984, pertinent provisions
o~ the Tus~in Municipal Code, as well as pertinent provisions of
the California Gove=nment Code, and supplements or amendments
the='eto, any successo= legislation,' and. the regulations which are
'1
.1
.2
or will be pr om ul ga t .e d under such legislation.
8. Copies of the proposed amended franchi_se 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
4 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
5 proposed transfer and amendment of the franchise. At: such hearing
any persons having an interest or objection to the transfer and
6 amendment of such franchise may appear and be. heard. ~
8
10. The City Clerk is directed to publish this Resolution
at least once within ten (10) days of its passage in T_h_e T_u_s_t_in
of the
PASSED AND ADOPTED at a regular meeting of the City Council
Ci'ty of Tustin, 'California, hold on tho 6th day of July, 1987.
10 .... _Ju_]~y_ ......... , 1987.
11
12
13 .
14 ATTEST:
. ..
.
17
18
(C218)
19
20
22
23
24
25
26 ~.
27
28
o
· ' '. ·'4'" "-'~."~ ': . :-"% .... . ~ ' " . .': ~'' ' ' :" '' 'i.';"" ";' :"'"' 'J':" ' ' ' ' ' [ ' ~ ' ' ' '"
· " . :' ' ..' ' i ':..,. '..'i~ :':":..."~" ..,'. ' .... .' ; '~':.:,. :'.' ,, ;'~'.'"~.'.:~'~:..' :j . :,.! .... ,.... : ..... :,: ~ -' ~'~, .... ~ !'~"
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT "A"
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA,
AMENDING THE FRANCHISE FOR A CABLE TELEVISION SYSTEM
GRANTED TO AMERICAN CABLESXSTEMS OF CALIFORNIA, INC.,
A CALIFORNIA CORPORATION
·
.
The City Council
ordains as follows:
of the City .of Tustin, California,
hereby
WHEREAS, Ordinance No. 9-05 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, 198~7, 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
City of Tustin has determined that it is appropriate to
various provisions of the Franchise.
of the
amend
LOWS:
The City Council
of the City of Tustin DOES ORDAIN AS FOL-
1. Au. thor.it¥ for Franchise. This amendment
exclusive franchise for a cable television system is
suant to the authority provided in, and all of the
terms and conditions of Article 7, Chapter 4 of the
Code, Sections 7410, e.t seq.
to the non-
enacted pur-
provisions,
Tustin City
2. Grant. of. Franchise. Pursuant to the provisions of
Article 7, Chapter 4 of the Tust. in 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 existfng 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-
1
7
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
___
tions and obligations upon Franchisee as set forth in the Tusti~
City Code are hereby made a part of the Franchise .. g.ran'ted herein.
3. .C0n.sen~ to Transfer. Pursuant to the' 9rovisi:ons of
Article 7, Chapter 4 of the Tustin City Code, and Ordinance No.
905, the.C~t¥ 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 ~ights 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 Franch~see~s
proposal dated September 28, 1978). The transfer to American shall
become effective at such time as (1) American shall notify the C~ty
of Tustin, in writing, that it has acquired the assets of Communi-
com~ and (2) American shall have filed with the C~ty of Tust~n its
written acceptance of the terms and conditions of the Franchise, in
accor'dance with the provisions of Section 13 hereof. Upon the
filing of the written acceptance of the Franchise by American,
Commun~com .shall be release~ 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. Ass!Qnm.ent 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 9art, 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
pertin..ent 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
1
4
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
28
if, as a result of any acts of the Federal Communications Commis-
sion, the Unite~ States Congress, any state or federal court, Or
any other entity lawfully asserting jurisdiction for the regulation
of =able communications systems, such authority is granted to City.
7. De..fi. nition .... 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 ehtity 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:
A. Revenue from the subscriber network and institutional
network (including Leased Access fees);
B. Advertising revenues;
C. Revenue from the use of studio facilities, production
·
equipment and personnel;
D. Revenue from installation, connection and reinstatement
and the provision of subscriber and other services;
E. The sale, exchange or cablecast of any programming
developed for Community Use or institutional users;
F. Interconnection revenues.
"Gross Revenues" shall not include:
A. Any taxes on services furnished by the Franchisee which
are imposed directly upon any subscriber or user by the
United States, State of California or local agency and
collected by the Franchisee on behalf of the govern-
ment-;
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 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 reg.u!ation arising out of issuance of the Franchise and pro-
motin~, 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.
3
..
.1 The streets a~n~ other public rights-of-way to 'be use~ by
· ~ Franchisee in the operation of its system within the boundaries of
· 2 the City of Tustin are valuable public properties acquire~ an~
maintaine~ by the City a~' great expense to its taxpayers, an~ the
3 grant to the Franchise of consent to use such streets an~ other
public rights-of-way is a valuable proper,ty right without which the
4 Franchisee woul~ be require~ to invest substantial a~itional cagi-
tal. Furthermore,"the City will incur costs i'n a~ministering the
§ Franchise in the public interest... Thus, in consi~eration-~of the
granting an~ exercise of a Franchise to use the streets an~ other
6 public rights-of-way as herein ~efine~, for the operation of a
cable television system, an~ to reimburse City for costs incurre~
7 in a~ministering this Franchise grante~ pursuant to this Ordinance,
the Franchisee shall pay the City the fees provi~e~ in this Or~i-
8 nance.
9 Said f~anchise fees shall be paid quarterly not later than
June 1, September 1, December 1 an~ March 1 for the preceding three
10 (3) month perio~ ending, respectively, March 31, June 30, September
30 an~ December 31. Not later than March 1, the Franchisee shall
11 file with the City Clerk of the Cit~ of Tustin an annual audit
report by a Certifie~ Public .Accountant approve~ by City, of' the
12 operations of Franchisee which i~entifies in ~etail the sources an~
amounts of all Gross Revenues receive~ by the Franchisee from all
13 Sources, both inside an~ outsi~e City. On the ~ate of payment--
Other than March 1, Franchisee shall file an unau~ite~ report which
14 i~entifies all Gross Revenues ~uring the pe. rio~ for which payment
is ma~e.
No acceptance of any payment shall be construe~ as an accor~
16 that the amount pai~ is, in fact, the cor=ect amount, nor shall
such acceptance of payment be construe~ as a release of any claim
17 which the City of Tustin may have for further a~itional sums
payable un,er the provisions of the Franchise.
18
9, Reimbursement .... of_ City Expenses.... The Franchisee shall
1~ pay to the City of Tustin an amount equal to the legal expenses
incurred by the City in preparing, revising, negotiating and eh-
20 acting this Ordinance and matters directly related ther. eto. The'
City shall prepare a statement aggregating such cost and send such
2 statement to the Franchisee. The Franchisee shall pay the amount
of such statement to the City within thirty (30) days after receipt
22 of such statement.
23 The purpose of this Section is to reimburse City for the
expenses incurred by the City of Tustin in 9reparing and enacting
24 this Ordinance.
25 10. Futu.r...e Law__s. The City of Tustin does not have or ....
expect.in the foreseeable future to receive sufficient funds with
26 which 'to defray the costs of administering and regulating the cable
television franchise within the City. The ability to finance such
2 costs through., franchise fees pursuant to the provisions of Section
7 above, constitutes a material inducement to initiate a cable
28 television program within the City of Tustin because the City of
7
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Tustin would not be willing to reduce or eliminate other public
programs in order.t~ make public funds available with which to
defray the cost of administering and regulating the cable televi-
sion program.
Therefore, should any future law or regulation limit or
prevent the City of Tustin from imposing a franchise fee in the
amount provided for herein, the Franchisee shall make a good faith
effort to obtain any possible waiver or permission to pay the full
amounts provided for herein, and to the extent such future law or
regulation permits the Franchisee discretion to make the limitation
or prohibition applicable or inapplicable, the Franchisee shall
elect to make the .limitation or prohibition inapplicable. If, as a
result of any acts of the Federal Communications Commission, the
United States Congress or any other entity lawfully asserting
jurisdiction for the regulation of cable communication systems, any
provision or provisions of the Franchise are modified, amended,
revoked, redeemed, or changed to result in what constitutes, in the
view of' either party to this Agreement, material changes in the
provisions and circumstances of the Franchise the parties shall
diligently pursue, in good faith, a reasonable means to preserve
the intentions of the parties as' expressed in this Agreement.
Should the parties be unable, within a reasonable time after 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. Limitati..on.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 ~hall 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 Franchis.e.. Within thirty (30) days after
the effective date of'this Or. dinance, Franchisee shall file with
the City of Tustin its written, unconditional, non-contingent ac-
ceptan'ce 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 authorize'd to act
on behalf of the Franchisee, shall be notarized and shall have
attached thereto a certified copy of an order by the Boar'd of
..
· '~: .... :" ' ~ ":' ' ' ,?::,i:'i:'i~ ~.' .... "", .' ..::x., ..... "'~:~'.:,'-'~::'.:~.': .". ''~'..'. "'-'.:; '..':. '" '.; ..... ":'~ ' . . .'
.... : .. *:-,'.,.:"{- '-.",, .... ';~;.' ,.'F'.~'.,.',,,.'r."'¥..-~'j_._~: i.~'. i-~'.'.:l.-il:., ill" i ..... i '[ ~!!}1 ~1~ "?-.t'..: :'1;':' '1'['1"'"' ...... l~ :"'":i':' ""1 ": "' ~I ..... I':" "1' ;~' ,", .... ,' ' ,,
.1
2
4
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
'28
Directors of American, authorizing an~ directling execution
filing Acceptance. An Acceptance which constitutes a qualifie~
acceptance or places other limits or con~i.tions therein shall be
~eeme~ to be a nullity. Upon the'failure 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 spe¢i-
fie~ above, the Franchise shall be of no further force or effect
an~ there will be not issued an outstanding cable television fran-
chise in the City of Tustin to an_y of the companies or entities
name~ in this Ordinance. Franchisee shall furnish an~ maintain all
bon~s an~ insurance policies require~ to be furnishe~ pursuant to
·
Tustin City Co~e an~ this Franchise.
14. ..B. onds. 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 anti
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 ~elivere~ to an~ held by the City
of Tustin. The cash d~'posit 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 thii
Ordinance. Upon full and final completion of the cable televisior
system as prescribd in this Ordinance within the times 9rescribea
in the Franchise, City shall deliver the said passbook, certificate
o'f 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 surets---
..
agreement approved by the City Attorney in the amount of Fift5
Thousand Dollars ($50,000.00). The bond or agreement shall be s(
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-
o o.
1
4
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
covetable jointly and severally from the principal and surety, any
damages or loss, or costs suffered or incurred by the City as
result thereo.f, including atto. rneys' fees and costs.of any action
or proceeding, and including the full amount of any compensation,
indemnfication, costs of removal or abandonment of any property or
other costs which may be in default, up to the full principal
amount of such bond. Said condition shall be a continuing, obliga-
tion during the entire term of the Franchise and thereafter until
Franchisee shall have satisfied in full any and all obligations to
City which shall arise out of or pertain to said Franchise.
15.
Co.nu~. nit¥, Use.
A. The Franchisee shall provide Community Use Channels and
Community Use Programming in order to permit the community to
design, produce and present programming of local interest and
promote the educational, recreational and character-building oppor-
tunities of the viewing public.
·
B. To meet its obligations under this Section 14, the
Franchisee's obligations shall include the following:
..
Franchisee shall initially provide one chan-
nel 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, after-
noon, 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 the same basis, which three channels shall be
the total maximum number of channels which the
Franchisee shall be required to provide for such
municipal,, educational and public access purposes.
In order .that the City .and others may utilize the
educational and municipal channels, the Franchisee
will provide video and such other equipment and
personnel as is necessary to broadcast on said
channels, at Franchisee's costs. The sale of
commercial time on said channels is allowed to
offset Franchisee's costs of operation, and the
management of program scheduling, and unused chan-
nel capacity shall be the responsibility of Fran-
chisee; provided, however, that neither such sale
nor such management shall .unduly limit City's use
~.of such channels.
·
The Franchisee, at its expense, shall open a studio in the
City for video origination, which may be located in the same loca-
tion as the Franchisee's local business office. The Franchisee
shall keep open such studio thereafter for the remaining term of
· 10
11
12
14
15
16
17
18
19
21
22
23
24
25
26
27
28
this Franchise. Franchisee shall furnish the studio, at its ex-
pense, with such equipment as. the Franchisee determines, but at ~
minimum one color camera, a video recorder, adequate lighting anu
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 p.ublic 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. L.e. vel ..o...f.., 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 indust.ry.
17. Bi-.Dir.e. ct!..ona..1. Inter..c. onn..ect Capability. The system .to
be installed by Franchisee shall have bi-directional interconnect
capabilities. New schools and City facilities in Franchisee~s
s,ervice 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
of the effective date of this Ordinance, in Franchisee~s servic~
area within City shall be interconnected when it is technically and
financially fe&sible to do so, at no cost to City. Ail equ'ipment
and staff required to access the system from the facilities will
not be the responsibility of the Franchisee.
18. Subscribe~ Se.r..v..ice. 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 locat£on. The F=anch~see 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 withih a reasonable time to any individual inter-
rupti.on, of service and also a sufficient installation force t¢
minimize delay for service installation. Any service complaiint
from subscribers will be investigat, ed and acted upon as soon
possible. Those service problems that are correctible from the
headend station shall be remedied within an eight (8) hour period.
10
11
12
13
14
15
16
17
!8
19
20
21
22
23
24
25
26
27
28
The Franchisee shall provide a telephOne answering system
with a local toll free number to receive all construction and
service complaints. The telephone-number of. the local office shal'l"'
be listed in the' telephone directories serving City. The telephone'
service shall be operable to accept complaints twenty-four (24)
hours a day, seven (7) days a week..
The Franchisee shall keep a maintenanoe service log for a
running three year period which w.ill indicate the nature of each
service complaint, its location, the date and time it was received,
the disposition of said complaint and the time and date thereof.
This log shall be made available for periodic inspection by the
cit .
19. N.u. mber of Channels. The cable television system in-
stalled pursuant to the Franchise granted herein shall consist of a
one (1) cable subscriber network with a capacity of not less than
fifty-four (54) channels.
20. Remedies. At the time of issuance of this Franchise,
it is impractical to reasonably ascertain the total extent of
damages which may be. incurred as a result of the breach by Fran-
chisee of its obliga.tions under the Franchise.
Without the provisions of this Section, the actual monetary
'damages for which the Franchisee would be liable, could greatly
exceed the specified amount of liquidated damages. Therefore, the
parties have agreed, after good faith negotiations, to fix the
amount of liquidated damages, in lieu of any other monetary damages.
recoverable by the City ~f Tustin, as provided in Paragraph 22.
21. COmp.iet.i. on .. of Construction. The cable television sys-
tem constructed pursuant to this Ordinance shall be fully and
completely constructed so as to make service available in a timely
manner to all occupied residential dwelling units within the City
of Tusttn 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. Li.quidated_ Damaqes. If the City believes that the Fran-
chisee is in material default under the terms of the Franchise, the
City shall give written notice of such default to the Franchisee.
The Franchisee shall have fourteen (14) days from receipt of such
notice to cure the default or to agree in writing with the City
upon a method and time that such default shall be cured. If the
default is not cured within fourteen (14) days from the receipt of
the notice, or, if such default is of a nature that reasonably
requires longer than fourteen. (14) days to cure, within such other
reasonable time as is reasonably agreed to between the parties, the
City dounci~ 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 ($500.00) for each calendar day on which the
Franchisee is in such default, from and after the date Franchisee
fails to cure the default. Notwithstanding anything to the con-
· .o
. trary herein provided, such liquidated damages shall in no event
exceed the .sum of Fifty Thousand Dollars ($50,000.00) in the aggre-.
2 gate. Said liquidated damage sum shall be sev.erally applicable to
each calendar day of delay in compliance with the provisions of
3 construction and separately applicable for each calendar day of
delay 'complying with any other provision of the Franchise.
4 .
23. Altern.at.ive...RgmedieSo Nwither a',termination of the
5 Fzanchige nor liquidated damages -shall be deemed to be the.:exclu-
sire remedy for breach of the Franchise. Neither the right to
6 assess liquidated damages nor the assessment of liquidated damages
shall be deemed to bar or otherwise limit the right of the City of
7 Tustin to obtain judicial enforcement of the Franchisee's obliga-
tions by means of specific performance, injunctive relief, mandate
8 or other remedies at law or in equity.
9 24. Ter~mina..t.ion of_.F.ranc.h..ise. The following material
breaches of the obligations of the Franchisee under the Franchise
10 shall constitute grounds for termination of the Franchise by the
City Council of the City of Tustin: ·
11
12
13
14
15
16
17
18
19
20
21
A. The willful failure to make any payments required
under the Franchise and/or to provide City with required
information in a ~imely 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 whick
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__..A..qainst. C.itv. Franchisee shall have no
22 recourse whatsoever against the City of Tustin or its officers,
agents, or employees for any loss, costs, expense or damage arising
23 out of or resulting from any provision or requirement of the Fran-
chise or any rule, regulation, requirement or directive promulgated
24 thereunder, or because of the enforcement of any provision of the
Franchise or any rule, regulation, requirement or directive promul-
25 gated thereunder, or in the event any provision of the Franchise or
any r~.le, r~gulation, requirement or directive promulgated there
26 under is determined to be invalid.
27 26. Non-~Enforcemen~. The Franchisee shall not be relieved
of any obligation to comply with any of the provisions of the
28 F£anch~se or any rule, regulation, requirement or directive promul-
..
.:
I gate~ thereunder by reason of any
its officers, agents or employees
failure of the City of Tustin or
to enforce prompt compliance.
27. Fr.anch..i..se as. ¢ont,ract. The Franchise shall be deemed
3 to constitute a contract betwen the Franchisee and the City of
Tustin. The Franchisee shall be deemed'to have contractually
4 committed itself to comply with the ter. ms, 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. '
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:
10
11
12
13
14
15
16
17
1.8
19
20
21
22
23
24
25
26
27
28
A. The express terms of this Franchise
over conflicting or inconsistent provisions
Chapter 4 of the Tustin City c0de;
B. The express terms of this Franchise
over conflicting Or inconsistent provisions
application for the Franchise or the
tance of the Franchise.
shall pr evail
in Article 7,
shall pr evail
in either the
certificate of accep-
28. ..~ti.litv Pole.s. This Franchise shall not be deemed to
expressly or impliedly authorize the Franchisee to utilize poles
owned by the Southern California Edison Company, Pacific Bell or
any other public or private utility which are located within the.
streets, without the express consent of such utility.
29. Indemnification=_ Liability Insu..rance. Franchisee
agrees to and shall hold City and its officers, employees, agents
an-d representatives free, harmless and shall indemnify and defend
them against and from any and all claims, demands, costs, liability
to other kind or nature whatsoever arising out of or from the
Fran~.hise, any extension of any time limits contained in the Fran-
chise, the failure to extend any time limit in the Franchise, out
of the construction, operation, maintenance, program content,
royalties or removal or abandonment of the CATV system by Fran-
chisee.
Franchisee shall procure and thereafter during the life of
the Franchise shall maintain in full force and effect at Fran-
chisee's sole cost and expense, general comprehensive liability
insurance in an amount not less than One Million Dollars
($1,000,000.~0) for injuries,, including accidental death, to two
(2) or~.Aore persons and in an amount not less than Five Hundred
Thous~'nd Dollars ($500,000.00) for injuries, including 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
11
1
7
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to be included in the public liability and property damage policie~
Of broad form contrac~ual ~nd broad .form property damage, with th~
f.urther provision that.said policies shall contain a provision that
written notice of cancellation or material alteration of said
policies shall be deliverd to City sixty (60) days in advance of
the effective date of any such cancellation or material alteration.
·
During the period of construction, and'~t all times there-
after, Franchisee shall keep all improvements installed by it
insured against loss o'r 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.
3~. $..e.vera..bilit¥, 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. Effect/we...Date. o..f .Ordinance.
become effective thirty (30) days after its
This Ordinance shall
passage.
PASSED
of the City
AND ADOPTED at a regular
of Tustin, California,
.... , 1987.
.,
meeting of the City Council
held on the _ _ day of
.al, o,:'
ATTEST
cit:¥' k .......
ARW:SDA:cj :R: 06/30/87 (C219)
- ..
~ ·
· -.
·
12
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §
CITY OF TUSTIN )
MARY E. WYNN, City Clerk and ex-officio Clerk of the City Council of the-City of
Tustin, California, does hereby certify that the whole number of the members of
the City Council of the City of Tustin is five; that the above and foregoing
Resolution No. 87-79 was duly and regularly introduced, passed and adopted at a
regular meeting-of'the City Council held on the 6th day of ~u_~, 1987 by the
following vote' ~ ·
AYES · COUNCILPERSONS.. Edgar, Hoesterey, Kelly, Kennedy, Prescott
NOES · COUNCILPERSONS. None
ABSENT- COUNCILPERSONS. None
MARY E. W~er-F17--~
City of l~Ls)t~n, C~l~or~ia
mmm~