HomeMy WebLinkAboutORD 1002 (1988) ORDINANCE NO. 1002
t
AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING THE
2 FRANCHISE FOR A CABLE TELEVISION SYSTEM GRANTED TO
CONTINENTAL CABLEViSION, INC., A CORPORATION
4 The City Council of the City of Tustin, California,
hereby ordains as follows:
5
WHEREAS, Ordinance No. 905 adopted by the City
6 Council of the City of Tustin on March 19, 1984, granted a
non-exclusive cabIe television franchise ("Franchise") to
7 Communicom of Tustin, a California corporation; and
8 WHEREAS, Resolution No. 87-79 adopted by the'City
Council of the City of Tustin on July 6, 1987, approved the
9 transfer of the Franchise to American Cablesystems of
California~ Inc., a California corporation ("American"); and
10'
WHEREAS, American has requested approval to merge
it with Continental Cablevision, Inc., a corporation and the
City Council of the City of Tustin has determined that it is
12 als6 appropriate to amend various provisions-of the
Franchise.
13
The City Council of the City of Tustin DOES ORDAIN AS
14 FOLLOWS:
15 1. Authorit~.forFranchis.e. This amendment 'to the
non-exclusive franchise for a Cable television system is
.16 'enacted pursuant to the authority provided'in, and subject
to all of the provisions, terms"and conditions of Article 7,
17 Chapter 4 of the Tustin City Code, Sections 7410,'at seq.
!8 2. Grant of Franchise. Pursuant to the provisions
of Article 7, Chapter 4 of the Tustin City Code,~the City
19 Council of the City of Tustin hereby grants a non-exclusive
Franchise to construct, operate and maintain a cable
20 television system within those portions'of the incorporated
limits of the City of Tustin in which there is no exclusive
21 Franchise in effect, to American' as merged with Continental
Cablevision, Inc., a corporation, with all the rights and
22 privileges and subject to all of the terms and conditions of
(a) sai'd Article 7, Chapter 4, and (b) to the extent
23 .consistent.with the terms and conditions of this Ordinance,
Franchisee's Application entitled Request For Franchise
24 Transfer From Communicom To American., dated March 24, 1987,
and all supplements and amendments thereto accepted and
25 approVed by the City of Tustin, and (c) the terms and
conditions provided herein. As of the effective date
26 hereof, this Franchise shall supercede and cancel in its
entirety the existing Franchise granted pursuant to
27 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.
2 Each, every and all of the conditions,. requirements,
limitations ahd obligateions upon Franchisee as set forth in
3 the Tustin City Code are hereby made a part of the Franchise
granted herein.
3. Consent to Transfer. Pursuant to the provisions
5 of Article 7, Chapter 4 of the Tustin City Code, and
Ordinance No. 905, the City of Tustin hereby approves the
6 merger with Continental Cablevision, Inc., a corporation,
and the transfer of the ownership of a non-exclusive
7 franchise heretofore granted to American to. American after
its merger with Continental Cablevision, Inc. to construct,
8 operate, and maintain a cable television system within the
City of Tustin, together with all the rights and privileges
9 and subject to all of the te~ms and conditions of (a) said
Article 7, Chapter 4, as amended; and (b) to the. terms and
10 conditions provided herein (excluding any reference to
Franchisee's proposal dated September 28, 1978). The
11 transfer American as merged with Continental Cablevision
shall become effective at such time as (1) Continental shall
12 notify the City of Tustin, in writing, that it has merged
with Continental and (2)'American shall have filed with the
13 City of Tustin its written acceptance of the terms a~d
conditions of the Franchise, in accordance with the
14 provisions of Section 13 hereof.
15 4. Te~ of Franchise. The ~erm of this Franchise
shall be for the period commencing-on the effective date of
16 this Ordinance as provided in Section 31 hereof, and
terminating on July 6, 2002, subject to termination of the
17 Franchise granted by this Ordinance as hereinafter provided.
18 5. Assignment or Transfer of Franchise. The
Franchise granted herein shall be a privilege to be held in
19 personal trust by American, a corporation. It cannot in any
event be sold, transferred, leased, assigned or disposed of
20 in whole or in ~art, either by forced or involuntary sale,
or by voluntary sale, merger, consolidation or otherwise,
21 without prior consent of the City Council of the City of
Tustin expressed by Resolution, and then only under such
22 conditions as may therein be prescribed. Any such transfer
or assignment shall be made only by an instrument in
23 writing, such as a bill of sale, or similar document, duly
executed copy of which shall be filed in the Office of the
2~ City Clerk within thirty (30) days after any such transfer
or assignment. Any proposed assignee must show
25 responsibility and capability as determined by the City
Council and must agree to comply with all provisions of the
26 Franchise and Tustin City Code, and, provided further, that
no such consent shall be required for transfer in trust,
27
mortgage or other hypothecation, in whole or in part, to
1 secure an indebtedness- Such consent shall not be withheld
unreasonablY-
6, Rates. Franchisee shall only impose rates
3 consistent with the provisions df the Cable Communications
Policy Act of 1984, and pertinent provisions of the
4 California Government Code, and any supplements or
amendments thereto, any successor legislation, and the
5 regulations which are or will be promulgated under such
legislation. Franchisee agrees to provide written notice to
6 City and subscribers not less than sixty (60) days prior to
said proposed rate increase. Further, City reserves the
7 right to impose or regulate rates if~ as a result of any
acts of the Federal Communications Commission, the United
8 States Congress, any state or federal court, or any other
entity lawfully asserting 3urisdiction for the regulation of
9 cable communications systems, such authority is granted to
10
7. Definition of Gross Revenues. "Gross Revenues"
11 shall mean all cash, credits~ property of any kind or nature
or other consideration derived directly or indirectly by the
12 Franchisee, its affiliates, subsidiaries, and any other
person or entity in which Franchisee has a financial
13 interest or which has a financial interest in the
Franchisee, arising from or attributable to operation of the
!4 cable television .s~stem in the City of Tustin, as its
corporate city l~mits now ~nd/or hereafter may be
15 constituted, including, bu~ not limited to:
16 A. Revenue from the subscriber network and
institutional network (including Leased Access fees);
17
B. Advertising revenues;
t8
C. Revenue from the use of studio facilities,
19 production equipment and personnel;
20 D. Revenue from installation, connection and
reinstatement and the provision of subscriber and other
2! services;
22 E. The sale, exchange or cablecast of any
programming d~v&loped for Community Use or institutional
23 users;
24 F. Interconnection revenues.
25 "Gross Revenues" shall not include:
26 A. Any taxes on services furnished by the
Franchisee which are imposed directly upon any subscriber or
27 user by the United States,. State of California or local
28
3
agency and collected by the Franchisee on behalf of the
! government;
2 B. Revenue received directly from the Franchisee by
an affiliate, subsidiary or parent of the Franchisee or any
3 Other person or entity in which the Franchisee has a
financial interest or which has a financial interest in the
4 Franchisee, when the revenue received has already been
included and reported as Gross Revenues received by the
5 Franchisee.
6 8. Franchise Fees. For the use of the' City'streets
and for the purposes of providing revenue with which to
7 defray the cost of regulation arising out of issuance of the
Franchise and promoting, assisting and financing Community
8 Use Programming and other cable services of a public
character, Franchisee shall pay franchise fees to the City
9 of Tustin in the amount of five percent (5%) of Gross
10i! Revenues.
The streets and other public rights-of-way to be used
!1 by Franchisee in the operation of its system within the
boundaries of the City of Tustin are valuable public
12 properties acquired and maintained by the City at great
expense to its taxpayers, and the grant to the Franchise of
13 consent to use such streets and other public rights-of-way
is a valuable property right without which the Franchisee
f4 would'be required to invest substantial additional capital.
Furthermore, the City will incur costs in administering the
15 Franchise in the public interest. ~ Thus, in consideration of
the granting and exercise of a Franchise to use the streets
16 and other public ri'ghts-of-way as herein defined, for the
operation of a cable teIevision system, and to reimburse
17 City for costs incurred in administering this Franchise
granted pursuant to this Ordinance, the Franchisee shall pay
18 the City the fees provided in this Ordinance.
19 Said franchise fees shall be paid quarterly not later
than June 1, September 1, December 1 and March 1 for the
20 preceding three (3) month period ending, respectively, March
31,-June 30, September 30 and December 31. Not later than
21 March 1, the Franchisee shall file with the City Clerk of
the City of Tustin an annual audit report by a Certified
22 Public Accountant approved by City, of the operations of
Franchisee which identifies in detail the sources and
23 amounts of all Gross Revenues received by the Franchisee
from all sources, both inside and outside City. On the date
24 of payment other than March 1, Franchisee shall file an
unaudited report which identifies arl Gross Revenues during
25 the period for which payment is made.
26 No acceptance of any payment shall be construed as an
accord that the amount paid is, in fact, the correct amount,
27 nor shall such acceptance of payment be construed as a
release of any claim which the City' of Tustin may have for
4
further additional sums payable under the provisions of the.
1 Franchise.
2 9. Reimbursement of Cit~ Expenses. The Franchisee
shall pay to the City of Tustin an amount equal to the legal
3 expenses incurred by the City in preparing, revising,
negotiating and enacting this Ordinance and matters directly
4 related thereto. The City shall prepare a statement
aggregating such cost and send such statement to the
5 Franchisee. The Franchisee shall pay the amount of such
statement to the City within thirty (30) days after receipt
6' of such statement.
7 The purpose of this Section is to reimburse City for
the expenses incurred by the City of Tustin in preparing and
8 enacting 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 City.
!1 The ability to finance such costs through franchise fees
pursuant to the provisions of Section 7 above, constitutes a
12 material inducement to initiate a cable television program
within the City of Tustin because the City of Tustin would
13 not be willing to reduce or eliminate'other public programs
in order to make public funds available with which to defray
14 the cost of administering and [egulating the'.cable televi-
sion program.
15
~herefore, should any future law or regulation limit
16 or prevent the City of Tustin from impoeing a franchise fee
in. the amount provided for herein, the Franchisee shall make
17 a good faith effort to obt.ain 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
20 result of any acts of the. Federal Communications Commission,
the United States Congress or any other entity lawfully
2! asserting jurisdiction for the regulation of cable
communication systems, any provision or provisions of the
22 Franchise are modified, amended, revoked, redeemed, or
changed to result in what constitutes, in the view of either
23 party to this Agreement, material changes in the provisions
and circumstances of the Franchise the parties shall
24 diligently pursue, in good faith, a reasonable means to
preserve the intentions of the parties as expressed in this
25 Agreement. Should the parties be unable, within a
reasonable time after conducting negotiations in good faith,
26 to preserve said intentions, or, within a reasonable time
after conducting negotiations in good faith, should the
27 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.
1
11. Limitation of Uses. The cable television system
2 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.
4 12. Establishment and Extension of Service. Upon
the effective date of this Ordinance, Franchisee shall
5 diligently proceed or continue to proceed to obtain all
necessary permits and authorizations necessary to construct
6 and operate cable television service and shall forthwith
proceed or Franchisee shall diligently proceed or continue
7 to proceed to obtain all necessary permits and authori-
zations necessary to construct and operate cable television
8 service and shall forthwith proceed or continue to proceed
with construction and installation of the cable television-
9 system as specified and described in this Ordinance and
Article 7, Chapter 4 of the Tustin City Code and approved by
10 City of Tustin.and shall .diligently and without delay carry
all construction to full completion.
il
13. Acceptance of Franchise. Within thirty (30)
12 days after the effective date of this Ordinance, Franchisee
shall file with the City of Tustin its written,
13 unconditional, non-contingent acceptance of the Franchise
granted by this Ordinance and 'its agreement to be bound by
14 and comply with all the requirem~nts hereof. The Acceptance
shall be signed by a person dul~ authorized'to act on behalf
15 of the Franchisee, shall be nota~ized and shall have
attached thereto a certified copy Of an order by the Board
18 of Directors of American, authorizing and directling
execution and filing of the Acceptance. An Acceptance
17 which constitutes a qualified acceptance or places other
~limits or conditions therein shall be deemed to be a
18 nullity.. Upon the failure of the. Franchisee to file .its
unconditional, non-contingent AcCeptance of the Franchise
19 subject to all its terms and conditions within the time
period specified above, the Franchise shall be of no further
20 force or effect and there will be not issued an outstanding
cable television franchise in the City of Tustin to any of
21 the companies or entities named in this Ordinance.
Franchisee shall furnish and maintain all bonds and
22 insurance policies required to be furnished pursuant to
Tustin City Code and this Franchise.
14. Bonds. Upon the adoption of this Ordinance and
24 the Acceptance of the Franchise by Franchisee as hereinabove
provided, and in addition to satisfying all other
25 requirements of the Tustin City Code, Franchisee shall
deposit in a bank or savings and loan association in the
28 City of Tustin the sum of One Hundred Thousand Dollars
(S100,000..00) in a joint account in the names of Franchisee
27 and the City of Tustin, or shall file with .the City Clerk
and maintain in full force and effect a bond, approved by
28
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the City Attorney, in an equivalent amount. The passbook,
1 certificate of deposit or surety bond shall be delivered to
and held by the City of Tustin. The cash deposit sum, or
2 the corporate surety bond shall be. maintained during the
period of construction of the cable television system within
3 the City of Tustin as prescribed by this Ordinance. Upon
full and final completion of the cable television system as
4 prescribed in this Ordinance within the times prescribed in
the Franchise, City shall deliver the said passbook,
~ certificate of deposit or surety bond to Franchisee and
execute any appropriate document releasing City's interest
.6 and rights therein to Franchisee. This release shall be
contingent upon the full and faithful performance of the
7 Franchisee of its obligations under this Ordinance. In the
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,
including but not limited to the full amount of any
I0 compensation, indemnification, cost of removal of abandoned
property, staff costs in attempting to secure compliance,
11 plus a reasonable allowance for attorneys' fees and costs,
up to the full amount of the aforesaid deposit. Re-
12 linquishmeht of City.'s interests and rights in the aforesaid
deposit shall also be conditioned upon the deposit with City
13 of a performance bond as provided in the following
paragraph.
14
Prior to relinquishmen% 'by ~City of any of its
15 interests and rights-in the deposit described in the
preceding paragraph, Franchfsee 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
!7 corporate surety bond or other adequate surety agreement
approved by the City Attorney in the amount of Fifty
18 Thousand Dollars ($50,000.00). The bond or agreement 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 granted to Franchisee,
20 then there shall be recoverable jointly and severally from
the principal and surety, .any damages or loss, or costs
21 suffered or incurred by the City as result thereof,
including attorneys' fees and costs of any action or
22,.proceeding, and including the full amount 'of 'any
compensation, indemnfication, costs of removal or
23 abandonment of any property' or other costs which .may be in
default, up to the full principal amount of such bond. Said
24 condition shall be a continuing obligation during the entire
term of the Franchise and thereafter until Franchisee shall
25 have satisfied in full any and all obligations to City which
shall arise out of or pertain to said Franchise.
15. Community Use.
A. The Franchisee shall provide Community Use
7
Channels and .Community Use Programming in order to permit
1 the community to design, produce and present programming of
local interest and promote the educational, recreational and
2 character-building opportunities of the viewing public.
3 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 9perated by the Franchisee until such time as such one
7 channel is used full time during normal morning, afternoon,
and evening viewing 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
I0 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,
13 at Franchisee's costs. The sale of commercial time on said
channels is allowed to offset Franchisee's costs of
!4 operation, and the management of program sc~heduling, and
unused channel capacity shall b~ 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 City 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 remaining 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 lighting and playback
equipment. The Franchisee shall provide such reasonable
21 staff and technical services as may be necessary for the
studio, which shall be available for programming for the
22 public access, educational access, and government access
channel(s).
Use of these channels will be governed by the
24 operating rules and procedures which are established by the
Franchisee and which are subject to change, at the sole
25 discretion of the Franchisee. A copy of all such rules and
procedures shall be provided to the City.
16. Level of Service. Franchisee shall use its best
27 efforts to maintain, operate and, where feasible, modify the
CATV system toward the goal that its performance will be in
28
accordance with the highest and best accepted standards of
1 the industry.
2 17. Bi-Direc~ional Interconnect Capability. The
system to be installed by Franchisee shall have hi-
3 directional interconnect capabilities. All public schools
and City's facilities in Franchisee's service area within
4 City shall be interconnected at the request of the
appropriate public agency. If such interconnection is a
~ standard installation, the Franchisee will bear the cost of
installation up to 50. feet and the public agency will bear
8 any additional costs of Franchisee for the interconnection.
If su=h interconnection is a non-standard installation,
7 Franchisee will bear costs of such installation in an amount
equal to the amount it would bear if the installation was
8 standard and the public agency will bear any additional
costs of the Franchisee for the interconnection. All
9 equipment and staff required to access the system f=cm the
facilities will not be the responsibility of the Franchisee.
10
18. Subscriber Service and Complaint Procedures.
1! The Franchisee shall have a business and service office in
the City to serve the TUstin cable television system. The
12 Franchisee shall also open a billing collection office in
the City which may be at the same location. The Franchisee
13 will maintain sufficient service personnel and equipment in
such location(s) for the Franchisee to be able to take
14 action-upon customer service calls in the manner specified
herein. The local office, in~kuding the service 6ffice,
15 shall be open to receive inqU'iries or complaints for
subscribers during normal business hours and in no case less
16 than 9:00 A.M. to 5:00 P.M., Monday to Friday, exclgding
legal holidays; provided, however, that such hours may be
17 lessened upon the prior written consent of the City Manager
provided that local, non-toll telephone service is available
18 during such time.
19 The telephone service shall transmit service
interruption messages to the service repair force' within two
20 (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 ~:00
2t p.m. Saturdays. All repair calls received after these
designated transmittal times or on Sundays and legal
22 holidays shall be transmitted by 8:30 a.m. of the next work
day.
The Franchisee shall maintain a service repair force
24 sufficient to respond within twenty-four (24) hours Monday
through Friday and within forty-eight (48) hours during a
25 weekend to any individual interruption of service and al~o a
sufficient installation force to perform service
26 i'nstallations within ten (10) working days. Service
problems that are correctable from the headend station shall
Z7 be remedied within an eight (8) hourp~riod.
28
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At a minimum of once per year, all subscribers will be
! notified that any inquiries regarding cable television
service may be directed to the City cable coordinator with a
2 telephone number and address cited for such inquiries.
3 The Franchisee shall keep a maintenance service log
for a running three year period which will indicate the
G nature of each service complaint, its location, the date and
time it was received, the disposition of said complaint and
5 the time and date thereof. This log shall be made available
for periodic inspection by the City.
19. Number of Channels. The cable television system
7 installed pursuant to the Franchise granted herein shall
consist of a one (1) cable subscriber network with a
8 capacity of not less than fifty-four (54).channels.
9 20-. Remedies. At the time of issuance of this
Franchise, it is impractical to reasonably ascertain the
!0 total extent of damages which may be incurred as a result of
the breach by Franchisee of its obligations under the
11 Franchise.
12 Without the provisions of this Section, the actual
monetary damages for which the. Franchisee would be liable,
13 could greatly exceed the specified amount of liquidated
damages. Therefore, the parties have agreed, after good
14 faith negotiations, to fix the amount of liquidated damages,
in lieu of any other monetarycdamages recoverable by the
15 City of Tustin, as provided in Paragraph '22.
16 21. Completion of Construction. The cable
television system constructed pursuant to this ordinance
!7 shall be fully and completely constructed so as to make
service available in a timely manner to all occupied
18 residential dwelling units within the City of Tustin
provided that the Franchisee has been able to obtain
19 reasonable access to all necessary easements and that the
extension of service to such units is otherwise economically
20 and technically feasible.
21 22. Liquidated Damages. If the City believes that
the Franchisee is in material default under the terms of the
22 Franchise, the City shall give written notice of such
default to the Franchisee. The Franchisee shall have
23 fourteen (14) days from receipt of such notice to cure the
default or to agree in writing with the City upon a method
24 and time that such default shall be cured. If the default
is not cured within fourteen (14) days from the receipt of
25 the notice, or, if such default is of a nature that
reasonably requires longer than fourteen (14) days to cure,
26 within such other reasonable time as is reasonably agreed to
between the parties, the City Council of the City of Tustin
27 may assess the Franchisee and the Franchisee shall be liable
for liquidated damages in the sum of Five Hundred Dollars
10
($500.00) for each calendar day on which the Franchisee is
1 in such default, from and after the date FranchiSee fails to
cure the default. Notwithstanding anything to the contrary
2 herein provided, such liquidated damages shall in no event
exceed the sum of Fifty Thousand Dollars ($50,000.00) in the
3 aggregate. Said liquidated damage sum shall be severally
applicable to each calendar day .of delay in compliance with
4 the provisions of construction and separately applicable for
each calendar day of delay complying with any other
5 provision of the Franchise.
6 23. Alte~native Remedies. Neither a termination of
the 'Franchise nor liquidated damages shall be deemed to be
-7 the exclusive remedy for breach of the Franchise. Neither
the right to assess liquidated damages nor the assessment of
8 liquidated damages shall be deemed to bar or otherwise limit
the right of the City of Tustin to obtain judicial
9 enforcement of the Franchisee's obligations by means of
specific performance, in3unctive relief, mandate or other
I0 remedies at law or in equity.
I1 24. Termination of Franchise. The following
" material breaches of the obligations of the Franchisee under
12 the Franchise shall constitute grounds for termination of
the Franchise by the City Council of the City of Tustin:
13
A. The willful failure to make any payments
14 required under the Franchise and/or to provide City with
required information in a timel~ manner as-provided in the
15 Franchise. from and after ten (10) days written notice from
the City; "-
16
B. Any other act or omission by the Franchisee
17 which materially violates the terms, conditions or
requirements of the Franchise or any order, directlye, rule
18 or regulation issued thereunder and which is not corrected
or remedied within thirty (30) calendar days following
19 mailing to the Franchisee written notice of the violation or
within such period beyond the thirty (30) calendar days, as
20 is reasonable.
21 C. Should the Franchise be terminated out of
the provisions of this Section 23, any transfer of ownership
22 shall be conditional upo~ payment of an equitable price for
the Franchise to Franchisee for the Franchise, as set forth
23 in Section 627 of the Cable-Communications Act of 1984..
24 25. Limited Recourse. Franchisee shall have no
recourse whatsoever against officers, agents or employees of
25 the City of Tustin for any loss, cost, expense or damage
arising out of or resulting from actions, or omissions to
26 act, undertaken by such officers, agents or employees in
good faith based upon the provisions of this Franchise,
27 including, without limitation, the promulgation by such
officers, agents or employees of rules, regulations,
11
requirements or directives in furtherance of the provisions
I of this Franchise.
'2 26. Non-Enforcement. The Franchisee shall not be
relieved of any obligation to comply with any of the
3 provisions of the Franchise or any rule, regulation,
requirement or directive promulgated thereunder by reaso~ of
4 any failure of the City-of Tustin or its officers, agents or
employees to enforce prompt compliance.
27. Franchise as Contract. The Franchise shall be
8 deemed to constitute a .contract betwen the 'FranChisee and.
the City 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 adhesion.
!0
All terms, conditions and provisions of the contract
il 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:
.13 A. The express terms of this Franchise shall
prevail over conflicting or inconsistent provisions in
14 Article 7, c~ap~er 4 of the Tustin City code;
15 B. The express terms.of this Franchise shall
prevail over conflicting or inConSistent provisions in
16 either the application for the Franchise or the certificate
-of acceptance of the Franchise.
17
28. Utilit= 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
20 consent of such utility.
21 29. Indemnification~ Liability Insurance.
Franchisee agrees to and shall hold City and its officers,
22 employees., agents and representatives free, harmless and
shall indemnify and defend them against and from any and all
23 claims; demands, costs, liability to other kind or nature
whatsoever arising out of or from the Franchise, any
24 extension of any timelimits contained in the Franchise, the
failure to extend any time limit in the Franchise, out of
25 the construction, operation, maintenance, program content,
· .royalties or'removal or abandonment of the CATV system by
26 Franchisee.
27 FranchiSee shall' procure and thereafter during the
life of the Franchise shall maintain in full 'force and
28
12
effect at Franchisee.'s sole cost ~and expense, general
! 'comprehensive liability insurance in an amount not less than
One Million Dollars (S1,000,000.00) for injuries, including
2 accidental death, to two (2) or more persons and in an
amount not less than Five Hundred Thousand Dollars
3 (SS00,000.00) for injuries, including accidental death to
any person, and property damage liability insurance in an
4 amount not less' than Five Hundred Thousand Dollars
($500,000.00) resulting from any one occurrence, and City
5 shall be named as an additional named insured in said
insurance policy, with coverages to be included in the
6 public liability and proper~y damage policies of broad form
contractual and broad form property damage with the further
7 provision that said policies shall contain a provision that
written notice of cancellation or material alteration of
8 said policies shall be deliverd to City sixty Q60) days in
advance of the effective date of any such cancellation or'
9 material alteration.
!0 During the period of construction, and at all times
thereafter, Franchisee shall keep all improvements installed
1! by it insured against loss or damage by fire, with extended
coverage endorsement or its equivalent in amounts not less
12 than'ninety percent (90%) of the insurable value of the
buildings, equipment and other improvements insured, with
13 loss payable to Franchisee, .any lenders of Franchisee which
may have a security' interest in the property comprised of
i4 the cable television system and City, in accordance with
their respective interests therein.
30. Severabilit3F. The prOviSions of Section 1115 of
16 the Tustin City COde shall not be applicable to the
provisions of the Franchise.
31. Rescission of Prior Consent. The City Council
18 of the City of Tustin hereby res'cinds the consent granted by
Section 32 of 'Ordinance No. 9'05 to the assignment of the
19 Franchise to United Cable of Southern California, Ltd.
20 32. Effective Date of Ordinance. This Ordinance
shall become effective thirty (30) days after its passage.
PASSED 'AND ADOPTED at a regular meeting of the City
22 Council of the City of Tustin, California, held on the 7th day of March. , 1988.
f ..... ~:. ,x---- _ ~ -
24 Mayor .1
ATTEST:
~C~?ty Clerk
JGR:se:R:02/10/88(S74.se)
27 ARW:se:R:02/12/88
28
13
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §
CITY OF TUST[N )
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 fi've; that the above and foregoing
Ordinance No. 1002 was duly and regularly introduced and read at an adjourned
regular m~etin~ the City Council held on the 16th day of February, 1988, and
was given its second reading and duly passed and ao~d at a regular meeting' held
on the 7tl~ day of March, 1988., by the following vote:
AYES : COUNCILPERSONS: Hoesterey, Kennedy, Edgar, Kelly, Prescott
NOES : COUNC ILPERSONS: None
ABSENT: COUNCILPERSONS: None
.ARY WY.N Cit' Cler
City of Tustl n, Cal i fornl a
Summary published in Tustin News:
2-25-88
3-17 -88