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HomeMy WebLinkAboutOrdinance 5140'111DINPNCE No. y YPDIt�NCE GRI. TO THE TIM COMMUNICATIONS COMPANY OF FLORIT)j' NJNt tL,E�GLUSIVE FRANCHISE TO INST `:,LL, M:.AINTAIN AND OPEC ATt.E A CABLE SYSTEM F K. T L DIST!�IBUTION OF TELEVISION SIGNALS, FREQUENCY MODULATED nAPIO SIG- is,J,S`-IND CLOSED CIRCUIT T LEVISION PRCrR'1MS FOR. ZI TERM ENDING _ ; PIROVIDING 'ONDITIONS, LIMIT',TIONS .1ND REQUIREMENTS; STIPUL1,%TING PROTECTIVE AND I -DEMNITY PROVISIONS; PROVIDING FOR THE PU . - GHP�SE OF THE SYSTEM BY THE CITY OF OCOEE; PEOVIDING FOP. CHANGES ANIT) EATES; PROVIDING FOR CERTAIN, Pt`,YMENTS TO THE CITY OF OCOEE: PROVIDING ACCEPT.,jNCE BY CU PANY; IMPOSING DUTIES Oil COMPANY AT THE OF ITS FRL:NCHISE; PROHIBITING ASSIGNMENTS, SUB -LENSES AND ENCUMBF:ANCES; OVIDING FUR EXTENSION OF F'RANCHISF. TO N0,7LY ANNE"..ED TERRITORIES'; 'r: OVIDING FOR THE SEPi'R:IBILITY OF THE P,,",_, TS HEREOF; nND PROVIDING AN 'EFFECTIVE DATE. BE IT ENACTION BY THE PEOPLE OF THE CITY OF OCOEE, FLORIDA: SECTIO14 1. This Ordinance shall be known and may be cited as the Ocoee Community i%ntenna Television Ordinance. S �'r'rlOiv; 2. In consideration of the faithful performance and obser- vance of the conditions and reservations herein specified and in. con- sideration of the payment of the amounts provided for in vection 12 (a) .ereof the right is hereby granted to the T M COMMUNICATIONS COMPANY C'COMP�;NY"), a. Corporation organized under the laws of the State of Florid,:t to erect, maintain and operate teleNi.sion transmission and distribution facilities and additions thereto, in, under, over, along, across and upon the streets, lanes, avenues, sidewalks, alleys, and other public places in the City of Ocoee, Florida, ("CITY") , and sub- sequent additions thereto, for the purpose of transmission and distri- bution of audio and visual impulses and television energy in accordance with the laws and regulations of CITY for the period provided for in Section c (a) of this Ordinance. SECTION 3. Whenever used in this Ordinance, the word "TELEVISION -111 shall 9 mean a system for transmission of audio signals and/or visual images by means of electrical impulses. SECTION 4. (a). To the extent possible, COMPANY shall make attachments to poles already in existence within CITY. To the extent that existing ;poles are insuf%icient for its purpose, or if COMPANY is unable to negotiate agreements satisfactory to it providing for the use of ex- ri • vesting poles, COI RANY shall. have the right to erect and maintain its own poles, or undergrouna conduits, as necessary, for the construction and maintenance for its television distribution system subject to the approval by the CITY as to location of such poles, or underground conduits. (b). COMPANY shall have the privilege of attaching any of its system facilities to any existing or future poles, towers (except water toti-�7ers) or other electrical facilities owned by CITY, in a manner which will noir interfere with the use of such poles, towers and other electrical facilities by CITY. (c). COMPAINY shall, with the prior approval of the CITY and at COM- PANY'S expense, have the authority to trim trees upon and over -hanging all streets, alleys, easements, sidewalks, and other public places within CITY so as to prevent the branches of such trees from coming into contact with the facilities of COMPANY. SECTION 5. (a) . The C ;MPAW shall file with CityCouncil, for approval, plans and specifications for the location or relocation of all facilities located within the CITY and such approval shall not be unreasonably withheld. The facilities shall he so located or relocated and so erected or installed as riot to obstruct or interfere with the use o streets, alleys, easements, and other public ways and places, or other utilities or structures already �_nstalled or hereafter to be installed, subject at all times to the lawful police power of CITY. (b). In case of any disturbance of pavement, sidewalk, driveway or other surface, COMPzMNYY shall, at its own expenses, upon completion of such construction, repair or installation of any of its facilities, remove, replace and restore all pavement, sidewalk, driveway, or sur- face so distrubed in as good condition as they were before the work was commenced. Such work shall be approved by the CITY. Any unrea- sonable obstruction of any street, alley, avenue, bridge, easement or other public place or way of the CITY not removed by the COMPS N'Yr -2- after written notice of ten (10) says by the CITY demanding removal thereof, not properly repaired by the COMPANY after its work therein, after written notice of ten (10) days by CITY demanding repair thereof, may be removed or repaired, as the case may be, by the CITY and the reasonable cost thereof plus ten per cent (10%) of such cost for ad- ministration and engineering expenses, shall be charged against said • COMPANY and shall be collectable by the CITY in any lawful manner, and all costs and reasonable attorney's fees incurred by the CITY in such enforcement shall be paid by the COMPANY to the CITY. (c). In the event that at any time during the period of this franchise, the CITY shall elect to alter or change any street, alley, easement or other public way requiring the relocation of the facilities of the COM1h NY, then in such event, the COMPANY, upon reasonable notice by the CITY, shall remove, relay and relocate its facilities at its own expense in accordance with the standards and procedures set forth in this Section 5. (d). COMPANY shall, when necessary on the request of any person holding an appropriate permit issued by CITY, temporarily raise or lower its lines to permit the moving of any building or other struc- ture. The actual expense of such temporary removal shall be paid by the person requesting the same and COMPANY shall have the right to r -_quire such payment in advance of such temporary removal. (e) . All poles, lines, structures, and other facilities of COMPAN71, in, on, over, and under the streets, sidewalks, alleys, easements • and other public grounds or places within CITY shall be kept by COM- PANY al all times in a safe, sound and substantial condition. (f). The COMPANY'S work, while in progress, shall be properly pro- tected at all times with suitable barricades, flags, lights, flares, or other devices to protect all members of the public having occasion to use the portion of the streets involved or adjacent property. SECTION 6. (a). COMPANY shall maintain and operate its system and render -3- efficient service in accordance with the rules and regulations which ore or may be set forth by the CITY, the State of Florida, the Fed- eral Communications Commission or other cognizant agencys. (b). 4henever it is necessary to shut off or interrupt service for the purpose of making repairs, installations, or adjustments, COMPANY shall do so at such times as will cause the least amount of inconve.n- • ience to its customers and unless such interruption is unforseen and immediately necessary, it shall give reasonable notice thereof to its customers. SECTION 7. Prior to the beginning of any work by the COMPiINY within the corporate limits of the CITY, the COXMPANY shall file with the CITY and shall keep in force and effect at all times during the effective period hereof, insurance certificates evidencing a liability insurance policy or policies, in the amount of $250,000.00/$500,000.00 bodily injury and $250,000.00 property damage, the terms and conditions whereof shall be such as to provide for the protection and indemnification of the CITY with respect to claims of any persons suffering injury, loss or damage to person or property by reason of the construction, opera- tion or maintainence of its television system within the corporate limits of the CITY. Each such insurance policy shall be subject to the acceptance and approval of the CITY. zny primary insurance policy must be issued by a Company having a policy -holders surplus at least five times the amount of coverage of the policy and the COMPANY must have management rating in Best's Insurance Guide of BB or better. Any ex- • cess policy used must be issued by underwriters acceptable to the CITY. Each such policy shall be in such minimum limits as are acceptable to the CITY, and said insurance coverage shall remain in full force and shall be undiminished during the effective period of this ordinance. Every such insurance policy shall contain a provision whereby every company executing the same shall obligate itself to notify the CITY in writing at least thirty (30) days before any alteration, modification or cancellation of such policy shall become effective. -4- In the event that any suit is filed or action brought against the CITY, either severally or jointly with the COMPANY, by any person or corpora- tion seeking to recover damages resulting from or attributable to the operations or the existence of the COMPANY within the CITY OF OCOEE, or arising in any manner whatsoever out of the operations or existence of the COMPANY within the CITY, whether due to the COMPANY'S negligence 0 or otherwise, the COMPANY shall upon written notice by the City, defend said suit or action, and, in the event any Judgment therein should be rendered against the CITY, the C0MPANY shall promptly pay the sum, together with all costs resulting there��rom. SECTION 8. (a). COMPANY shall have the right to charge and collect compensation from all subscribers to whom it shall furnish service. It is agreed that unless prohibited by State Law, any change in rates and charges made by COMPANY shall first be approved by CITY, upon COMPANY making a comprehensive rate and charge application therefore reflecting the basis for such change, and CITY shall not unreasonably withhold its approval thereof, C0HPt,11NT' shall not as to rates, regulations or any other respects, make unreasonably excessive charges, or grant any preferences or advantages to any person, or subject any person to any prejudice or disadvantage; provided, however, that this provi- sion shall not be deemed to prohibit the establishment of a gradue.ted scale of charges and classified rate schedules to which any customer corning within such classification shall be entitled as provided • herein. mates shall be the same for such classification of custo- niers as are served by CJHPzNY from identical facilities. (b). COMPANY'S initial schedule of rates and charges is as follows: (1) :: :ES IDENT I�`y First Outlet Installation Charge Monthly Service Charge (2) Additional Outlets (each) Installation Charge Monthly Service Charge -5- $10.00 $ 5.00 $ 5.00 $ 1.50 • • C JMMERC Its: L (Includes hotels, motels, bulk billing apartments and all businesses) (3) Installation Charge $ (4) monthly Service Charge - First Outlet $ (5) Additional Outlets (regardless of number) $ MISCELLANEOUS C-HARGES (6) Reconnect Charge $ 5.00 (7) Relocate Charge $ 5.00 (8) Moving charge (new location wired) $ 5.00 (9) Moving Charge (new location not wired) $10.00 (10) FM Outlet (Installed with TAT Outlet) $ 5.00 Monthly Service Charge $ 1.00 (c). The COMP21NY shall receive no consideration whatsoever for or in connection with its service to its subscribers other than in accordance with this section. (d). In the event that any subscriber shall fa -.'Ll to pay fee or charges within fifteen (15) days after notification such charges are due, COMPANY reserves the right to withhold and/or deny service to such subscriber, and to remove any installation which it has made to pro- vide service to such subscriber. Otherwise, the service rendered by COMPANY shall be available to all inhabitants of CITY along the rea- sonably extended pole route of COMPANY; provided, however, that not - ping contained herein shall require CJ�IPANY to extend its pole system to provide service to any person within the CITY, if it is economically impracticable to do so. SECTIO? 9. (a). The rights granted hereunder shall take effect and be in full force and effect from and after the date of acceptance by COMPANY. The rights granted under this ordinance shall continue in full force and effect for a term of Fifteen (15) years from the date of accep- tance by COMPANY. (b). CITY hereby reserves the right at and after the expiration of the term of this ordinance to purchase the property of COMPANY located *To be determined at a. later date. 1011 within CITY and used in connection with the television distribution systems, as provided for by the laws of the State of Florida in ef- fect on the effective date hereof, including Section 167.22, Florida Statues, 1967. (c). If CITY elects to purchase said property pursuant to the pro- visions hereof, it shall give written notice of its election to the • COMPANY within sixty (60) days from the expiration of the term hereof. Upon the exercise of this option by CITY, and receipt of payment as determined in accordance with applicable statues, COMPANY shall imme- diately execute such deeds or instruments of conveyance to CITY as shall be required to convey to CITY the title of the property. COM- PANY shall continue to operate its system upon the terms and conditions herein until payment in full is made by CITY. COMPANY shall make it a condition of any contract entered into by it for the sale of its facilities that the contract shall be subject to the exercise of this option by CITY and that CITY shall have the right to succeed to all privileges and the obligations thereof at its option. In the event CITY does not elect to purchase the system, a new ordinance may be negotiated or GOIAPANY may dispose of its property as it so chooses. SECTION 10. (a). If COMPANY should violate any of the terms, conditions or pro- visions of this ordinance or if C014PxT,1Y should fail to comply with any provision of any Ordinance of CITY regulating the operations of COMP,,iNY in the CITY, and should C014P EY continue to violate the same • a period of thirty ( 30` days after COIAPANY shall have been noti-- f. or p y > y fied in writing by CITY to desist from such violations, CJi�IP iaY m�1y, at CITY'S option, be deemed to have for and abondonec all the rights an6 privileges of this ordinance. (b). CITY hereby has the primary option and right in the event of a. forfeiture to purchase the property of COMPANY, located within CITY and used in connection with its television distribution system, as provided for by the laws of the State of Florida in effect on the effective date hereof, including Sect -'-on- 167.22, Florida Statues,, 1967. (c). If CITY elects to purchase said property pursuant to the provi- sions hereof, it shall- give written notice of its election to C01APANY within sixty (60) days _1-roni the effective date of the forfeiture. (6). If CITY elects to purchase said property, the sale shall be consurmnated in accordance with the terms and provisions of Section 9 (c) herein, in the event the CITY does not elect to purchase the sys- tem) COMPANY shall then have one hundred twenty (120) days to remove all of its facilities on or over any right given to it herein and thc insurance coverage as provided in Section 7 of this ordinance shall be 'Kept in force for the period of time required to remove all of the COMPANY'S facilities. If the COMPANY shall not have removed its said facilities within said one hundred twenty (120) day period, of any extensions thereof approved in writing by the CITY, then the said facilities shall be deemed abandoned and the CITY may thereafter dis- pose of the same as it shall see fit. SECTION 11. As further consideration for the grant of this franchise, the COMPANY agrees to, and shall upon final acceptance, place an accep- table $25,000.00 performance bond with the CITY. COMPANY shall, upon passage of this ordinance promptly make and pursue with all due and rea- sonable diligence its application for Federal Communication Commission (FCC), and any other required regulatory governmental agencies, approval, license or permit to so engage in business as provided herein, and in C) • the event that such approval, license or permit is denied, without fur- ther recourse, within one (1) year from the date of passage of this ordinance, then said bond shall be returned to COMPANY and cancelled without further liability thereunder; however, in the event COMPANVS application is approved as provided herein and COMPANY shall fail to begin substantial construction of said community television system within eighteen (18) months from date of passage of this ordinance then COMPANY shall be deemed to have defaulted under said bond and -8- the same shall be forfeited to CITY and this franchise shall be null and void and the $10,000.00 pre -paid franchise fee shall also be for- feited. SECTION 12. (a) The COMPANY shall pay to the CITY by certified _Lfied cashier's check the sum of $10,000.00, which amount shall represent a non -reoccurring 0 payment and shall be in lieu of any and all fees due the CITY by the COMPANY for the first three (3) calendar years subsequent to the en- acting of this ordinance. (b). For the next two (2) calendar years the COMPANY shall pay to CITY $2,500.00 per year or seven per cent (7%) of COUPANYS annual gross revenue, whichever is greater. C, (c) a, or the next six (6) through ten (10) calendar years COMPANY shall pay to CITY the sum of $3000.00 or ten per cent (10%) of C014- PANY'S annual gross revenue, whichever is greater. (d). For the next eleven (11) through fifteen (15) calendar years COMPANY shall pay to CITY the sum of $4,000.00 or ten per cent (10%) of COMPANY'S annual gross revenue, whichever is greater. (e). L"JI of the annual payments shall be made one (1) month after the annual anniversary of this ordinance. (f). annual gross revenue shall be defined as all of the gross re- ceipts derived from all of the CO14P,&sNY'S CATV operations in CITY. (S). The payments provided for herein above shall be in addition to any other taxes or payments owed to the CITY by the COMP."INY. is (h) . C01,1_c1.,1A'NY shall maintain in OCOEE, FLOI�ID.'I, its permanent boos, ledgers, journals, accounts anc-4 records, wherein COMPANY shall keep all entries necessary to reflect its aforesaid annual gross receipts. Such documents shall be kept and maintained in accordance with accepted accounting principles, except to the extent such principles, are :=_n - consistent with the terms of this franchise., which shall be controlling. All of the said documents shall., on written request of the CITY, be open for examination and audit during ordinary business hours, and -9- shall be retained by J'L'or a minimum of three (3) years. (i). Nothing herein shall be construed as requiring COMPANY to pay to CITY any portion of the revenue derived from the sale of community television service by COFiAiPANY to customers residing outside the cor- porate limits of CITY. Upon annexation to CITY, of any territory not now within the corporate limits of CITY, however, the portion of 0 COMPANY'S facilities that may be located within such annexed territory and upon the streets, alleys, and public grounds thereof, shall there- after be subject to all of tie terms of this ordinance. SECTI""".N 13. (a). The COMPANY and all of its officers, agents and employees, are specifically prohibited from directly or 'indirectly, engaging in the sale, service, rental, or leasing of television receivers, radio re- ceivers, or television or radio receiver related parts and accessories anywhere in the CITY, whether for a fee or charge or not. CJ1APZ1,Ny shall prohibit its officers, agents, and employees from violating the terms of this prohibition, c,7hether in the performance of duties of the COMPANY or otherwise. (b). ("'MRANY and all of its officers, ploy agents, and employees are ex- pressly prohibited from, and shall not recommend, in any manner, a specific sales or service establishment or individual be used for the sale or service of any television set. (c) . This franchise authorizes only the operation of a CATV system as provided for herein, and does not take the place of any other franchise, license, or permit which might be required by law of COIIIIPI_�Nly. ci (d). COMPANY shall not contract for or otherwise provide a music service or background music service which is originated by the system or procured from any source whatsoever to any business, professional or commercial establishment. This subsection shall not prohibit the connection of a CiTV drop to any business, professional or commercial establishment if the connection is made only to a television set which is in operating order at the time of connection. (e). COMPANY shall not, without the prior consent of CITY, for an additional consideration satisfactory to the CITY, furnish a pay television service. Pay television shall be defined as the furnish- ing of programs with a charge on a per program basis, the programs which are not available to the general public without cost. • (f). COMPANY shall not, without the prior consent of CITY, for an additional consideration satisfactory to CITY (which consideration shall be due even if this prohibition is vitiated by action of the Federal Communications Commission or other governmental body or agency), furnish to any person within the CITY a facsimile service, alarm service, or any other service than those expressly enumerated herein. SECTION 14. COMPANY shall forfeit and shall be deemed to have for- feited and abandonded all rights and privileges conferred by this ordinance, and this ordinance shall be null and void and of no force and effect unless COMPiUN-Y shall, within. thirty (30) days after adop- tion hereof, file with the CITY its written acceptanace of the rights and privileges hereby conferred and with the terms, conditions and restrictions hereby imposed, at which tiem the performance bond re- quired by Section 11 hereof shall be deposited with the CITY. SECTION 15. The COMPANY shall at all times keep an accurate map show- ing the location of all facilities erected, constructed and maintained by the COMPANY under the provisions of this ordinance, and the maps shall • be accessible for CITY inspection at all times during reasonable hours. Two (2) copies of an up-to-date map of the COMPANY'S facilities shall be furnished to the CITY will all revisions thereto, all at the expense of the COMPANY. SECTION 16. Nothing in this ordinance shall be construed as a surrender by the CITY of its rights or power to pass ordinance regulating the use of its streets and other public ways; neither shall the COMPANY be re- lieved from paying a reasonable annual occupational license fee to the CITY. -11- • .r . SECTION 17. 'Nothing herein shall be construed as affecting in any manner the right of the CITY to levy or collect taxes payable by the CONSUVMrt for services provided by the CQMPA,.-1Y as now authorized under the laws of the State of Florida. SECTION 18. The rights and privileges hereby granted are considered personal, and shall not be sold, assigned, transferred or sub -let in whole or in part, either directly or by operation of law, nor shall COMPANY'S system or any part of it be solei or transferred, rented or subleased, nor shall COMPANY mortgage or encumber the rights and pri- vileges herein granted (except for initial construction funding, a.s approved by CITY), with the prior consent of. the CITY, given by reso- lution; provided, however, that permission for assignments, mortgages or other liens upon this franchise or upon C91,11PANY'S system, shall_ not be unreasonably withheld in the event that any such assignment, lien, or encumbrance is made for the purpose of improving or expanding the C01APA1WS system within the CITY. Prior approval of the CITY shall be required where ownership or control of more than 30`0 of the right of control of COMPANY is acquired by a person or group of persons actino in concert, none of whom already own or control 30% or more of such right of control, singularly or collectively. By its acceptance of this franchise, COMPANY specifically :agrees that any violation of this section shall constiuee a material violation of this franchise by the C 0v1PANY . SECTION 19. The COMPANY represents that it will furnish a community antenna television distribution service in the licensed area with the capability of providing twelve channels, which includes a twenty-four_ hour time and weather channel, plus FM radio signals. COMPATST`:' shall, when requested by the CITY, provide community antenna television service, without installation or monthly service charge, within the CITY limits, and when its lines have been extended to within 500 feet of the named facilities, to all public, private and parochial schools, all public libraries, city -owned recreational buildings, City Hall, City Police -1.2-- i Station K-ity Fire Stations, Airport terrainal, public works buildings 1 0 and any other buildings o��,,nec"' by -t-he GITY at),d used by the. CITY C.) I municipnl purposes. The sub"ect installations will not include the distribution systems within the facilitilles. C014PANY shall provide at least six (6) hours each week of closed- circuit television coverage of public meetings, public events and com- • munity activities in accordance with policies and schedules to be agreed to by C01,fRANTY anu (.]ITY. SECTIJN 20. In the event that the "JA2�"NY at iny time in the future addition l Florida area from recognilzes arly __ddit4onal revenues in the C'ei Ara I t sale o,� aldvertising or cor.,,iifiercials or any other source ot'her than the subscriber revenue previlously enu-mer',-3ted herein then in that event tne C!—Ill, shall sharc., in. any and all confaercial revenues obt%,ine6 or v C e ived by the on a pro-rato b,,-,isis with other communities ser.- vr,.ci by the COM-P,"l-TY in the t-,',entral- Florida area. on the basis of their respective share of the population of t1. -Ie COiiPA11-Y'S market in the Cen- tral Florida area.. This pl-ovision shall apply whether or not there are any commercial revenues real -'-zed from the sale of adver t4J. Sill_ or coivriier- L) cials within the Gll'Y itself an�d for 6eterluination of t'L)e '("ITY'S' propor- tionate share of any revenues realized from such coim.ierc-ial s,.�les the 1960 Fe6era.1 Gensus shall be conclusivel,. presume,- to establish the re- lative population of the various cities, towns, municipalities an, ­ counties in the Central Florida. area.. The =­.I'-PVS share shall be on the same percentage basis as the revenue froll, -I'Ll-ie subscribers income. • SEGTION 21. In the event that any future Federal or State la.w makes arty portion of this contract concerning the amount of revenues which t=ie �,,14Ze C,.X4'PZ,,1NY invalid then in that t --ie CITY is entitled to re A- , from the event this entire ordinance �-,nd any agreements with the CJ1,/LP.`.,'NY shall be considered to have been terrainatec nind tine CITY may retain any sums previously paid by t)he Ca'ATP..;dJY and in ad6ition it will be entitle6 to any earned revenues up to t1le time of ter.-aination, it being the inten- tiori oz the CITY that if Ohe Federal or State governments or re,-,ulatory agencies, such as the Federal Communications Coriunission, reduce the percentage of the revenues to be realized by the CITY from the GOIAP.:'1\TY'S subscriber and commercial sales, then in that event this ordinance shall be terminated. SECTIO -N 22. This ordinance is subject to the State and Federal rules, laws, and regulations pertaining to the operation of "television" by • C 01411i% NY . SECTION 23. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconsti- tutional,, such portion shall be deemed a separate, distinct and inde- pendent provision and such holding shall not affect the validity of the remaining portions hereof. SECTION 24.11 ordinances or part of ordlinances in conflict with this ordinance are hereby repealed. SE�C'TION 25. This ordinance shall become effective immediately upon its adoption.. DONE IN OPEN SESSION this day of 1970) by the City Corimision of the City of Ocoee, Orange County, Florida. CITY CLERK (SEAL) 0 -14- X L'/ ChairmAn of Commission Approved by the Mayor this day of 1970. BERT W. FOXYU-111YOR