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HomeMy WebLinkAboutORD 0992 (1987) 1 ORDINANCE NO. 992 2 AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING THE FRANCHISE FOR A CABLE TELEVISION SYSTEM 3 GRANTED TO AMERICAN CABLESYSTEMS OF CALIFORNIA, INC., A CALIFORNIA CORPORATION 4 5 The City Council of the City .Of Tustin, California, hereby ordains as follows: 6 WHEREAS, Ordinance No. 905 adopted by the City Council of 7 the City of Tustin on March 19, 1984, granted a non-exclusive cable television franchise ("Franchise") to Communicom of Tustin, a Cali- 8 fornia corporation; and 9 WHEREAS, Resolution No. 87-79 adopted by the City Council of the City of Tustin on July 6, 1987, approved the transfer of the 10 Franchise to American Cablesystems of California, !Inc., a Cali- fornia corporation ("American"); and 11 WHEREAS, American has requested and the City Council of the 12 City of Tustin has determined that it is appropriate to amend various provisions of the Franchise. 13 The City Council of the City of Tustin DOES. ORDAIN AS FOL- 14 LOWS: 15 1. Authority for Franchise.' This amendment to the non- exclusive franchise for a cable television system is enacted pur- l6 suant to the authority provided in, and all of the provisions, terms and conditions of Article 7~,, Chapter 4 of the Tustin City '17 Code, Sections 7410, et seq. 18 2. Grant of Franchise. Pursuant to the provisions of Article 7, Chapter 4 of the Tustin City Code, the City Council of 19 the City of Tustin hereby grants a non-exclusive Franchise to construct, operate and maintain a cable television system within 20 those portions of the incorporated limits of the City of Tustin in which there is no exclusive Franchise in effect, to American Cable- 21 systems of California, Inc., a California corporation, with all the rights and privileges and subject to all of the terms and condi- 22 'tions of (a) said Article 7, Chapter 4, and (b) to the extent consistent with the terms and conditions of this Ordinance, Fran- 23 chisee's Application entitled Request For FranChise Transfer From Communicom To American, dated March 24, 1987, and all supplements 24 and amendments thereto accepted and approved by the City of Tustin, and (c) the terms and conditions provided herein. As of the effec- 25 tive date hereof, this Franchise shall supercede and cancel in its entirety the existing Franchise granted pursuant to Ordinance Nos. 26 792 and 905, as amended, it being the intent of the parties that the parties' agreements respecting cable television service to the 27 City of Tustin be merged and consolidated in this Franchise. 28 Each, every and all of the conditions, requirements, limita- 1 1 tions and obligations upon Franchisee as set forth in the Tustin City Code are hereby made a part of the Franchise granted herein. 2 3. Consent to Transfer. Pursuant to the provisions of 3 Article 7, Chapter 4 of the Tustin City Code, and Ordinance No. 905, the City of Tustin hereby approves the transfer to American of 4 the ownership of a non-exclusive franchise heretofore granted to Communicom to construct, operate, and maintain a cable television 5 system within the City of Tustin, together with all the rights and privileges and subject to all of the terms and conditions of (a) 6 said Article 7, Chapter 4, as amended; and (b) to the terms and conditions provided herein (excluding any reference to Franchisee's 7 proposal dated September 28, 1978). The transfer to American shall become effective at such time as (1) American shall notify the City 8 of Tustin, in writing, that it has acquired the assets of Communi- corn; and (2) American shall have filed with the City of Tustin its 9 written acceptance of the terms and conditions of the Franchise, in accordance with the provisions of Section 13 hereof. Upon the 10 filing of the written acceptance of the Franchise by American, Communicom shall be released from all obligations and liabilities 11 under the Franchise. 12 4. Term of Franchise. The term of this Franchise shall be for a period of fifteen (15) years, commencing on the effective 13 date of this Ordinance as provided in Section 31 hereof, subject to termination of the Franchise granted by this Ordinance as herein- 14 after provided. 15 5. Assiqnment or Transfer of Franchise. The Franchise granted herein shall be a privilege to be held in personal trust by 16 American. It cannot in any event be sold, transferred, leased, assigned or disposed of in whole or in part, either by forced or 17 involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without prior consent of the City Council of the City of 18 Tustin expressed by Resolution, and then only under such conditions as may therein be prescribed. Any such transfer or assignment 19 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 20 filed in the Office of the City Clerk within thirty (30) days after any such transfer or assignment. Any proposed assignee must show 21 responsibility and capability as determined by the City Council and must agree to comply with all provisions of the Franchise and 22 Tustin City Code, and, provided further, that no such consent shall be required for transfer in trust, mortgage or other hypothecation, 23 in whole or in part, to secure an indebtedness. Such consent shall not be withheld unreasonably. 24 6. Rates. Franchisee shall imposerates consistent with 25 the provisions of the Cable Communications Policy Act of 1984, and pertinent provisions of the California Government Code, and any 26 supplements or amendments thereto, any successor legislation, and the regulations which are or will be promulgated under such legis- 27 lation. Franchisee agrees to provide written notice to City 'and subscribers not less than sixty (60) days prior to said proposed 28 rate increase. Further, City reserves the right to impose rates if, as a result of any acts of the Federal Communications Commis- sion, the United States Congress, any state or federal court, or 2 ~ny other entity lawfully asserting jurisdiction for the regulation of cable communications systems, such authority is granted to City. 3 7. Definition of Gross Revenues. "Gross Revenues" shall 4 mean all cash, credits, property of any kind or nature or other consideration derived directly or indirectly by the Franchisee, its 5 affiliates, subsidiaries, and any other person or entity in which Franchisee has a financial interest or which has a financial inter- 6 est in the Franchisee, arising from or attributable to operation of the cable television system in the City of Tustin, as its corporate 7 city limits now and/or hereafter may be constituted, including, but not limited to: 8 A. Revenue from the subscriber network and institutional 9 network (including Leased' Access fees);' 10 B. Advertising revenues; 11 C. Revenue from the use of studio facilities, production equipment and personnel; 12 D. Revenue from installation, connection and reinstatement 13 and the provision of subscriber and other services; 14 E. The sale, exchange or cablecast of any programming developed for Community Use or institutional users; 15 F. Interconnection revenues. 16 "Gross Revenues" shall not include: 17 A. Any taxes on services furnished by the Franchisee which 18 are imposed directly upon any subscriber or user by the United States, State of California or local agency and 19 collected by the Franchisee on behalf of the govern- ment; 20 B. Revenue received directly from the Franchisee by an 21 affiliate, subsidiary or parent of the Franchisee or any other person or entity in which the Franchisee has 22 a financial interest or which has a financial interest in the Franchisee, when the revenue received has al- 23 ready been included and reported as Gross Revenues received by the Franchisee. 24 8. Franchise Fees. For the use of the City streets and 25 for the purposes of providing revenue with which to defray the cost of regulation arising out of issuance of the Franchise and pro- 26 rooting, assisting and financing Community Use Programming and other cable services of a public character, Franchisee shall pay fran- 27 chise fees to the City of Tustin in the amount of five percent (5%) of Gross Revenues. 28 3 1 The streets and other public rights-of-way to be used by Franchisee in the operation of its system within the boundaries of 2 the City of Tustin are valuable public properties acquired and maintained by the City at great expense to its taxpayers, and the 3 grant to the Franchise of consent to use such streets and other public rights-of-way is a valuable property right without which the 4 Franchisee would be required to invest substantial additional capi- tal. Furthermore, the City will incur costs in administering the 5 Franchise in the public interest. Thus, in consideration of the granting and exercise of a Franchise to use the streets and other 6 public rights-of-way as herein defined, for the operation of a cable television system, and to reimburse City for costs incurred 7 in administering this Franchise granted pursuant to this Ordinance, the Franchisee shall pay the City the fees provided in this Ordi- 8 nance. 9 Said franchise fees shall be paid quarterly not later than June 1, September 1, December 1 and March 1 for the preceding three 10 (3) month period ending, respectively, March 31, June 30, September 30 and December 31. Not later than March 1, the Franchisee shall 11 file with' the City Clerk of the City of Tustin an annual audit report by a Certified Public Accountant approved by City, of the 12 operations of Franchisee which identifies in detail the sources and amounts of all Gross Revenues received by the Franchisee from all 13 sources, both inside and outside City. On the date of payment other than March 1, Franchisee shall file an unaudited report which 14 identifies all Gross Revenues during the period for which payment is made. 15 No acceptance of any payment shall be construed as an accord 16 that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim 17 which the City of Tustin may have for further additional sums payable under the provisions of the Franchise. 18 9. Reimbursement of City Expenses. The Franchisee shall 19 pay to the City of Tustin an amount equal to the legal expenses incurred by the City in preparing, revising, negotiating and en- 20 acting this Ordinance and matters directly related thereto. The City shall prepare a statement aggregating such cost and send such 21 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 preparing and enacting 24 this Ordinance. 25 10. Future Laws. 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 27 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 1 Tustin would not be willing to reduce or eliminate other public programs in order to make public funds available with which to 2 defray the cost of administering and regulating the cable televi- sion program. 3 Therefore, should any future law or regulation limit or 4 prevent the City of Tustin from imposing a franchise fee in the amount provided for herein, the Franchisee shall make a good faith 5 effort to obtain any possible waiver or permission to pay the full amounts provided for herein, and to the extent such future law or 6 regulation permits the Franchisee discretion to make the limitation or prohibition applicable or inapplicable, the Franchisee shall 7 elect to make the limitation or prohibition inapplicable. If, as a result of any acts of the Federal Communications Commission, the 8 United States Congress or any other entity lawfully asserting jurisdiction for the regulation of cable communication systems, any 9 provision or provisions of the Franchise are modified, amended, revoked, redeemed, or changed to result in what constitutes, in the 10 view of either party to this Agreement, material changes in the provisions and circumstances of the Franchise the parties shall 11 diligently pursue, in good faith, a reasonable means to preserve the intentions of the parties as expressed in this Agreement. 12 Should the parties be unable, within a reasonable time after con- ducting negotiations in good faith, to preserve said intentions, 13 or, within a reasonable time after conducting negotiations in good faith, should the parties be unable to agree on modifications to 14 the language of this Agreement, if any, City may elect to treat such failure as a cause for revocation of the Franchise. 15 11. Limitation of Uses. The cable television system herein 16 franchised shall be used exclusively for the purposes expressly authorized by Article 7, Chapter 4 of the Tustin City Code and no 17 other purpose whatsoever. 18 12. Establishment and Extension of Service. Upon the ef- fective date of this Ordinance, Franchisee shall diligently proceed 19 or continue to proceed to obtain all necessary permits and authori- zations necessary to construct and operate cable television service 20 and shall forthwith proceed or Franchisee shall diligently proceed or continue to proceed to obtain all necessary permits and authori- 21 zations necessary to construct and operate cable television service and shall forthwith proceed or continue to proceed with construc- 22 tion and installation of the cable television system as specified and described in this Ordinance and Article 7, Chapter 4 of the 23 Tustin City Code and approved by City of Tustin and shall dili- gently and without delay carry all construction to full completion. 24 13. Acceptance of Franchise. Within thirty (30) days after 25 the effective date of this Ordinance, Franchisee shall file with the City of Tustin its written, unconditional, non-contingent ac- 26 ceptance of the Franchise granted by this Ordinance and its agree- ment to be bound by and comply with all the requirements hereof. 27 The Acceptance shall be signed by a person duly authorized to act on behalf of the Franchisee, shall be notarized and shall have 28 attached thereto a certified copy of an order by the Board of 5 1 Directors of American, authorizing and directling execution and filing Acceptance. An Acceptance which constitutes a qualified 2 acceptance or places other limits or conditions therein shall be deemed to be a nullity. Upon the failure of the Franchisee to file 3 its unconditional, non-contingent Acceptance of the Franchise sub- ject to all its terms and conditions within the time period speci- 4 fied above, the Franchise shall be of no further force or effect and there will be not issued an outstanding cable television fran- 5 chise in the City of Tustin to any of the companies or entities named in this Ordinance. Franchisee shall furnish and maintain all 6 bonds and insurance policies required to be furnished pursuant to Tustin City Code and this Franchise. 7 14. Bonds. Upon the adoption of this Ordinance and the 8 Acceptance of the Franchise by Franchisee as heroinabove provided, and in addition to satisfying all other requirements of the Tustin 9 City Code, Franchisee shall deposit in a bank or savings and loan association in the City of Tustin the sum of One Hundred Thousand 10 Dollars ($100,000.00) in a joint account in the names of Franchisee and the City of Tustin, or shall file with the City Clerk and 11 maintain in full force and effect a bond, approved by the City Attorney, in an equivalent amount. The passbook, certificate of 12 deposit or surety bond shall be delivered to and held by the City of Tustin. The cash deposit sum, or. the corporate surety bond 13 shall be maintained during the period of construction of the cable television system within the City of Tustin as prescribed by this 14 Ordinance. Upon full and final completion of the cable television system as prescribd in this Ordinance within the times prescribed 15 in the Franchise, City shall deliver the said passbook, certificate of deposit or surety bond to Franchisee and execute any appropriate 16 document releasing City's interest and rights therein to Fran- chisee. This release shall be contingent upon the full and faith- 17 ful performance of the Franchisee of its obligations under this Ordinance. In the event that Franchisee shall fail to comply with 18 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 19 loss suffered by City as a a result thereof, including but not limited to the full amount of any compensation, indemnification, 20 cost of removal of abandoned property, staff costs in attempting to secure compliance, plus a reasonable allowance for attorneys' fees 21 and costs, up to the full amount of the aforesaid deposit. Re- linquishment of City's interests and rights in the aforesaid de- .22 posit shall also be conditioned upon the deposit with City of a performance bond as provided in the following paragraph. 23 Prior to relinquishment by City of any of its interests and 24 rights in the deposit described in the preceding paragraph, Fran- chisee shall file with the City Clerk and shall thereafteer, an- 25 nually, during the entire term of this Franchise, maintain in full force and effect a corporate surety bond or other adequate surety 26 agreement approved by the City Attorney in the amount of Fifty Thousand Dollars ($50,000.00). The bond or agreement shall be so 27 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 28 of the Franchise granted to Franchisee, then there shall be re- 6 1 coverable jointly and severally from the principal and surety, any damages or loss, or ~costs suffered or incurred by the City as 2 result thereof, including attorneys' fees and costs of any action or proceeding, and including the full amount of any compensation, 3 indemnfication, costs of removal or abandonment of any property or other costs which may be in default, up to the full principal 4 amount of such bond. Said condition shall be a continuing obliga- tion during the entire term of the Franchise and thereafter until 5 Franchisee shall have satisfied in full any and all obligations to City which shall arise out of or pertain to said Franchise. 6 15. Community Use. 7 A. The Franchisee shall provide Community Use Channels and 8 Community Use Programming in order to permit the community to design, produce and present programming of local interest and 9 promote the educational, recreational and character-building oppor- tunities of the viewing public. 10 B. To meet its obligations under this Section 14, the 11 Franchisee's obligations shall include the following: 12 Franchisee shall initially provide one chan- nel for municipal, educational, and public access 13 purposes to be utilized on a time-shared basis by the City and the other entities or individuals 14 served by the cable television system operated by the Franchisee until such time as such one channel 15 is used full time during normal morning, after- noon, and evening viewing hours, at which time the 16 Franchisee shall provide a second such channel to be utilized on the same basis, and when that 17 channel is also used full time, the Franchisee shall provide a third such channel to be utilized 18 on the same basis, which three channels shall be the total maximum number of channels which the 19 Franchisee shall be required to provide for such municipal, educational and public access purposes. 20 In order that the City and others may utilize the educational and municipal channels, the Franchisee 21 will provide video and such other equipment and personnel as is necessary to broadcast on said 22 channels, at Franchisee's costs. The sale of commercial time on said channels is allowed to 23 offset Franchisee's costs of operation, 'and the management of program scheduling, and unused chan- 24 nel capacity shall be the responsibility of Fran-. chisee; provided, however, that neither such sale' 25 nor such management shall unduly limit City's use of such channels. 26 The Franchisee, at its expense, shall open a studio in the 27 City for video origination, which may be located in the same loca- tion as the Franchisee's local business office. The Franchisee 28 shall keep open such studio thereafter for the remaining term of 7 this Franchise. Franchisee shall furnish the studio, at its ex- pense, with such equipment as the Franchlsee determines, but at a 2 minimum one color camera, a video recorder, adequate lighting and playback equipment. The Franchisee shall provide such reasonable 3 staff and technical services as may be necessary for the studio, which shall be available for programming' for the public access, 4 educational access, and government access channel(s). 5 Use of these channels will be governed by the operating rules and procedures which are established by the Franchisee and 6 which are subject to change, at the sole discretion of the Fran- chisee. A copy of all such rules and procedures shall be provided 7 to the City. 8 16. r-eve1 of Service. Franchisee shall use its best ef- forts to maintain, operate and, where feasible, modify the CATV 9 system toward the goal that its performance will be in accordance with the highest and best accepted standards of the industry. 10 17. Bi-Directional Interconnect Capability. The system to 11 be installed by Franchisee shall have bi-directional interconnect capabilities. New schools and City facilities in Franchisee~s 12 service area within City shall be interconnected when it is techni- cally and financially feasible to do so, at no cost to City, so 13 long as said schools and facilities are within 50 feet of an ex- isting access point. Schools and City facilities in existence as 14 of the effective date of this Ordinance, in FranchiseeJs service area within City shall be interconnected when it is technically and 15 financially feasible to do so, at no cost to City. All equipment and staff required to access the system from the facilities will 16 not be the responsibility of the Franchisee. 17 18. SubsCriber Service and Complaint Procedures. The Franchisee shall have a business and service office in the City to 18 serve the Tustin cable television system. The Franchisee shall also open a billing collection office in the City which may be at 19 the same location. The Franchisee will maintain sufficient service personnel and equipment in such location(s) for the Franchisee to 20 be able to take action upon customer service calls in the manner specified herein. The local office, including the service office, 21 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 22 5:00 P.M., Monday to Friday, excluding legal holidays~ provided, however, that such hours may be lessened upon the prior written 23 consent of the City Manager provided that local, non-toll telephone service is available during such time. 24 The Franchisee shall maintain a service repair force suffi- 25 cient to respond within a reasonable time to any individual inter- ruption of service and also a sufficient installation force to 26 minimize delay for service installation. Any service complaiint from subscribers will be investigated and acted upon as soon as 27 possible. Those service problems that are correctible from the headend station shall be remedied within an eight (8) hour period. 28 1 The Franchisee shall provide a telephone answering system with a local toll fr'ee number to receive all construction and 2 service complaints. The telephone number of the local office shall be listed in the telephone directories serving City. The telephone 3 service shall be operable to accept complaints twenty-four (24) hours a day, seven (7) days a week. The Franchisee shall keep a maintenance service log for a 5 running three year period which will indicate the nature of each service complaint, its location, the date and time it was received, 6 the disposition of said complaint and the time and date thereof. This log shall be made available for periodic inspection by the 7 City. 8 19. Number of Channels. The cable television system stalled pursuant to the Franchise granted herein shall consist of a 9 one (1) cable subscriber network with a capacity of not less than fifty-four (54) channels. 10 20. Remedies. At the time of issuance of this Franchise, 11 it is impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by Fran- 12 chisee of its obligations under the Franchise. 13 Without the provisions of this Section, the actual monetary damages for which the Franchisee would be liable, could greatly 14 exceed the specified amount of liquidated damages. Therefore, the parties have agreed, after good faith negotiations, to fix the 15 amount of liquidated damages, in lieu of any other monetary damages recoverable by the City of Tustin, as provided in Paragraph 22. 16 21. Completion of Construction. The cable television sys- 17 tern constructed pursuant to this Ordinance shall be fully and completely constructed so as to make service available in a timely 18 manner to all occupied residential dwelling units within the city of Tustin provided that the Franchisee has been able to obtain 19 reasonable access to all necessary easements and that the extension of service to such units is otherwise economically and technically 20 feasible. 21 22. Liquidated Damaqes. If the City believes that the Fran- chisee is in material default under the terms of the Franchise, the 22 City shall give written notice of such default to the Franchisee. The Franchisee shall have fourteen (14) days from receipt of such 23 notice to cure the default or to agree in writing with the City upon a method and time that such default shall be cured. If the 24 default is not cured within fourteen (14) days from the receipt of the notice, or, if such default is of a nature that reasonably 25 requires longer than fourteen (14) days to cure, within such other reasonable time as is reasonably agreed to between the parties, the 26 City Council of the City of Tustin may assess the Franchisee and the Franchisee shall be liable for liquidated damages in the sum of 27 Five Hundred Dollars ($500.00) for each calendar day on which the Franchisee is in such default, from and after the date Franchisee 28 fails to cure the default. Notwithstanding anything to the con- 1 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 severally applicable to each calendar day of delay in compliance with the provisions of 3 construction and separately applicable for each calendar day of 4 delay complying with any other provision of the Franchise. 23. Alternative Remedies. Neither a t. ermination of the 5 Franchise nor liquidated damages shall be deemed to be the exclu- sive 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. Termination of Franchise. The following material breaches of the obligations of the Franchisee under the Franchise 10 shall constitute grounds for termination of the Franchise by the 11 City Council of the City of Tustin: A. The willful failure to make any payments required 12 under the Franchise and/or to provide City with required information in a timely manner as provided in the Franchise 13 from and after ten (10) days written notice from the City; 14 B. Any other act or omission by the Franchisee which materially violates the terms, conditions or requirements of 15 the Franchise or any order, directire, rule or regulation 16 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 17 period beyond the thirty (30) calendar days, as is reason- able. 18 19 C. Should the Franchise be terminated out of the provisions of this Section 23, any transfer of ownership 20 shall be conditional upon payment of an equitable price for the Franchise to Franchisee for the Franchise, as set forth 21 in Section 627 of the Cable Communications Act of 1984. 22 25. Limited Recourse. Franchisee shall have no recourse whatsoever against officers, agents or employees of the City of 23 Tustin for any loss, cost, expense or damage arising out of or resulting from actions, .or omissions to act, undertaken by such 24 officers, agents or employees in good faith based upon the provi- sions of this Franchise, including, without limitation, the promul- 25 gation by such officers, agents or employees of rules, regulations, requirements or directives in furtherance of the provisions of this 26 Franchise. 27 26. Non-Enforcement. The Franchisee shall not be relieved of any obligation to comply with any of the provisions of the 28 Franchise or any rule, regulation, requirement or directive promul- 10 1 gated thereunder by reason of any failure of the City of Tustin or its officers, agents of employees to enforce prompt compliance. 2 27. Franchise as Contract. '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 terms, conditions and provi- sions of the Franchise, and with all rules, orders, regulations and 5 determinations applicable to the Franchise which are issued, pro- mulgated or made pursuant to the provisions of this Franchise. The 6 Franchise shall not be construed to constitute a contracct of adhesion. 7 All 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 A. The express terms of this Franchise shall prevail over conflicting or inconsistent provisions in Article 7, 11 Chapter 4 of the Tustin City code; 12 B. The express terms of this Franchise shall prevail over conflicting or inconsistent provisions in either the 13 application for the Franchise or the certificate of accep- tance of the Franchise. 14 28. Utility Poles. This Franchise shall not be deemed to 15 expressly or impliedly authorize the Franchisee to utilize poles owned by the Southern California Edison Company, Pacific Bell or 16 any other public or private utility which are located within the streets, without the express consent of such utility. 17 29. Indemnification; Liability Insurance. Franchisee 18 agrees to and shall hold City and its officers, employees, agents and representatives free, harmless and shall indemnify and defend 19 them against and from any and all claims, demands, costs, liability to other kind or nature whatsoever arising out of or from the 20 Franchise, any extension of any time limits contained in the Fran- chise, the failure to extend any time limit in the Franchise, out 21 of the construction, operation, maintenance, program content, royalties or removal or abandonment .of the CATV system by Fran- 22 chisee. 23 Franchisee shall procure and thereafter during the life of the Franchise shall maintain in full force and effect at Fran- 24 chisee's sole cost and expense, general comprehensive liability insurance in an amount not less than One Million Dollars 25 ($1,000,000.00) for injuries, including accidental death, to two (2) or more persons and in an amount not less than Five Hundred 26 Thousand Dollars ($500,000.00) for injuries, including accidental death to any person, and property damage liability insurance in an 27 amount not less than Five Hundred Thousand Dollars ($500,000.00) resulting from any one occurrence, and City shall be named as an 28 additional named insured in said insurance policy, with coverages 11 1 to be included in the public liability and property damage policies of broad form contractual and broad form property damage with the 2 further provision that said policies shall contain a provision that written notice of cancellation or material alteration of said 3 policies shall be deliverd to City sixty (60) days in advance of the effective date of any such cancellation or material alteration. 4 During the period of construction, and at all times there- 5 after, Franchisee shall keep all improvements installed by it insured against loss or damage by fire, with extended coverage 6 endorsement or its equivalent in amounts not less than ninety percent (90%) of the insurable value of the buildings, equipment 7 and other improvements insured, with loss payable to Franchisee, any lenders of Franchisee which may have a security interest in the 8 property comprised of the cable television system and City, in accordance with their respective interests therein. 9 30. Severability. The provisions of Section 1115 of the 10 Tustin City'Code shall not be applicable to the provisions of the Franchise. 11 31. Rescission of Prior Consent. The City Council of the 12 City of Tustin hereby rescinds the consent granted by Section 32 of Ordinance No. 905 to the assignment of the Franchise to United 13 Cable of Southern California, Ltd. 14 32. Effective Date of Ordinance. This Ordinance shall become effective thirty (30) days after its passage. 15 PASSED AND ADOPTED at a regular meeting of the City Council 16 of the City of Tustin, California, held on the 3rd day of August , 1987. 17 18 ~/~~Ma~yo~ 19 ' 20 21 ATTEST: 22 ." aeity c1%k 24 25 ARW:SDA:cj :R:06/30/87 (C219) 26 27 28 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 Ordinance No. 992 was duly and regularly introduced and read at a regular meeting of the City Co~il held on the 20th day of July, 1987 and was given its second reading and duly passed and adopte"~'d='at a regular meeting held on the 3rd day of August, 1987, by the following vote: AYES : COUNCILPERSONS: Edgar, Hoesterey, Kelly, Kennedy, Prescott NOES : COUNCILPERSONS: None ABSENT: COUNCILPERSONS: None Published Ordinance: August 13, 1987 Tustin News