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HomeMy WebLinkAboutOrdinance 88-41 ORDINANCE NO. 88-41 AN ORDINANCE OF THE OCOEE CITY COMMISSION GRANTING A NON-EXCLUSIVE CABLE TELEVISION FRANCHISE TO TELESAT CABLEVISION, INC.; PROVIDING LEGISLATIVE FINDINGS; PROVIDING REGULATIONS AND CONDITIONS THEREOF; PROVIDING SEVERABILITY; PROVIDING AN EFFECTIVE DATE. BE IT ENACTED BY THE PEOPLE OF THE CITY OF OCOEE, FLORIDA: Section 1. Leqislative Findinqs. The Ocoee City . Commission hereby makes the following legislative findings and intent: (1) Telesat Cablevision, Inc. (hereafter "Franchisee") has filed an application for a non-exclusive cable television franchise throughout the City of Ocoee on March 7, 1988. (2) Pursuant to its home rule power under Florida law, and consistent with Section 166.046, Florida Statutes, and the Cable Communications Policy Act of 1984, 47 USCS S 521 at seq, and rules promulgated thereunder, the City regulates any cable television systems which wish to operate within the incorporated boundaries of the City of Ocoee. (3) The City has this day held a duly noticed public hearing in accordance with S 166.046(2), Fla. Stat. (4) The City has received competent, substantial evidence in the form of testimony and other documents and has considered the economic impact upon private property within the proposed franchise area, the public need for such franchise, the capacity of public rights-of-way to accommodate the cable system, the present and future of the public rights-of-way to be used by the cable system, the potential disruption to . existing users of the public rights-of-way to be used by the cable system and the resulting inconvenience which may occur to the public, the financial ability of the franchise applicant to perform, and other societal interests. (5) The first cable television operator in the City of Ocoee was Group W Cable, Inc., and they transferred their franchise to Cablevision Industries of Central Florida, Inc. (hereafter "CI") effective July 3, 1984. (6) To the extent required by law, all burdens imposed on CI as successors to the first cable operator in the City are hereby imposed on the Franchisee to the extent it is likewise the first operator to serve areas in the City. (7) Based upon the evidence and testimony received during the public hearing on May 17, 1988, the City determined ~ that it was in the best interest of the public welfare of the citizens of the City of Ocoee to grant a franchise subject to the terms and conditions set forth in this ordinance. Section 2. Definitions. The parties agree that in construing this Agreement, the following words, phrases and terms shall have the following meanings unless the context requires otherwise: 2.1. "Cablecasting" means programming carried on a cable system, exclusive of broadcast signals, whether originated by the cable operator or any other party. 2.2. "Cable Communication System" or "System" means any system which receives and amplifies signals broadcast by one or more television and/or radio stations and which transmits programming originated by the system itself or by another party, and distributes such signals and programming by wire, cable, microwave, satellite, or other means to persons who subscribe to such service. ~ 2.3. "City" means the City of Ocoee, Florida. The City of Ocoee, in its present incorporated form, or as it may be changed by annexation. 2.4. "Commission" means the City Commission of the City of Ocoee, Florida. 2.5. "FCC" means the Federal Communications Commission, its successors, or other legal entity authorized and designated as the controlling legal Federal Agency as established by the Congress of the United States. 2.6. "Franchisee" means Telesat Cablevision, Inc. 2.7. "Gross Revenues" means any and all compensation, -2- . . in whatever form, exchange or otherwise, derived from the provision of all cable services and transmission facility in the City. 2.8. "Subscriber" means a recipient of cable television service. Section 3. Grant of Authoritv. 3.1. The City hereby grants to Franchisee, the right and privilege to construct, erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the City poles, wires, cable, underground conduits, manholes, and other cable conductors and fixtures necessary for the maintenance and operation in the City of Ocoee, of a Cable Communication System, to be used for the sale and distribution of cable services to the residents of the City. Said broadband cable service shall include, but shall not be limited to, the carriage of television and radio signals and any cablecasting programming. This is a non-exclusive franchise and nothing contained herein shall prohibit the City of Ocoee, from granting franchise agreements to other Cable Communications System companies. The Franchisee shall, at all times during the operation of this franchise, be subject to all lawful exercise of the police power as may be hereafter provided by the franchising authority. 3.2. The Franchisee shall not be deemed to enjoy any terms or conditions hereunder which are more favorable or less burdensome than those in the CI franchise. The City hereby declares that, to the fullest extent required by law and permitted by state and federal constitutions, the foregoing sentence shall govern the event of conflict with any other provision of this franchise. Section 4. Franchise Territorv. 4.1. The franchise is for the present territorial limits of the City of Ocoee, and for any area henceforth added thereto during the term of this franchise. -3- . . 4.2. The Franchisee shall be obligated to make cable service available to all dwelling units in the City, at its regular installation and service rates, subject to only the following exceptions: (1) Unserved areas with a density of fifty (50) dwelling units per contiguous aerial cable mile shall be provided with cable television service within ninety (90) days after service is requested. (2) In other areas, the service need not be available at regular installation rates where there is a dwelling unit density of less than fifty (50) per contiguous aerial cable mile. Any potential subscriber(s) in an area of less than fifty (50) dwelling units per contiguous aerial cable mile may receive cable service upon payment of an installation charge equal to the actual cost per subscriber of extending the cable plant to provide service, less the cost the company would have incurred per subscriber had the density been fifty (50) dwelling units per contiguous aerial cable mile. Section 5. Duration of Franchise. The rights, privileges and authorizations hereby granted shall expire upon August I, 1999. Section 6. Police Powers. In accepting this franchise, Franchisee acknowledges that its rights hereunder are subject to the police powers of the City, to adopt and enforce ordinances necessary to the safety and welfare of the publici and it agrees to comply with all applicable general laws and ordinances enacted by the City, pursuant to such power. Section 7. Transfer of Control. The franchise, or control thereof, shall not be transferred or assigned without the prior written consent of the City, which consent shall not be arbitrarily or unreasonably withheld. Such consent shall be given only after a hearing upon a written application therefor on forms to be prescribed by the City. The application for consent to a transfer or assignment shall be signed by Franchisee and by the proposed transferee or assignee, or by their representatives, evidence of whose authority shall be -4- submitted with the application. Section 8. Installation. Indemnification. 8.1. In installing, operating, and maintaining equipment, cable and wires, Franchisee shall avoid all unnecessary damage and injury to trees, structures and improvements in and along the cable routes authorized by the City. 8.2. Franchisee shall indemnify and hold the City ~ harmless at all times during the term of the franchise from any and all claims for injury and damage to persons or property, both real and personal, caused by the installation, operation, or maintenance of any structure, equipment, wire or cable authorized to be installed pursuant to the franchise. Upon receipt of notice in writing from the City, Franchisee shall, at its own expense, defend any action or proceeding against the City, in which it is claimed that personal injury or property damage was caused by activities of Franchisee in the installa- tion, operation, or maintenance of its system. 8.3. The City shall have the right, during the life of this franchise, to install and maintain, free of charge, upon the poles of Franchisee, any wire and pole fixtures that do not unreasonably interfere with the CATV operations of Franchisee. The City agrees to indemnify, defend and hold Franchisee harmless from actions resulting from the City's use thereof. 8.4. Franchisee shall, during the life of this franchise, at such times prior to commencing underground or trench cable construction in the City, apply to the City for ~ all necessary or required licenses, permits, etc., required to commence and undertake underground or trench cable construction within the City. Franchisee shall also pay all required City license or permit fees as are normally specified by the City, in order to undertake such underground or trench cable construction within the City. 8.5. The Franchisee shall indemnify and hold harmless the City and its officers and employees against any and all -5- . . losses, claims, damages and liabilities arising out of or relating to the grant of this franchise, including reasonable attorneys' fees and reasonable attorneys' fees on appeal, including any amount paid in settlement of any litigation commenced or threatened which arises from or which relates to the grant of this franchise (but only if such settlement is effected with the written consent of the Franchisee). Upon receipt of notice in writing from the City, Franchisee shall, at its own expense, defend any action or proceeding against the City, in which it is claimed that any losses, damages, or liabilities have been caused by the City in granting said Franchise. Nothwithstanding the above, the City shall have the right to review the proceedings and the right of prior consent to any settlement in such proceedings; provided, however, that such consent shall not be unreasonably withheld. Section 9. Costs of Publications. Costs to be borne by Franchisee shall include, but shall not be limited to, all costs of publication of legally required notices prior to any public meeting provided for pursuant to this franchise. Section 10. Insurance. The Franchisee shall carry in- surance in companies satisfactory to the City of Ocoee, indem- nifying the City, and itself from and against any and all claims for injury or damage to persons and property, both real and personal, caused by the construction, installation, opera- tion, or maintenance of any structure, equipment, wires or cables authorized or used pursuant to the franchise. The amount of such insurance against liability for damage to pro- perty shall not be less than one million five hundred thousand ($1,500,000.00) dollars as to anyone (1) accident. The amount of such insurance for liability for injury or death to persons shall not be less than one million five hundred thousand ($1,500,000.00) dollars on account of injury to or death of any one (1) person or number of persons in anyone (1) accident. The Franchisee shall also carry automobile and Worker's Compen- sation Insurance, as well as other customary insurance carried by cable operators for protection against claims such as defa- -6- . . mation and other related claims common to cable systems. Certificates of Insurance shall be filed with the City, when executed, and the City shall be notified in writing at least thirty (30) days prior to the cancellation of any such policy. Section 11. Competition for Television and Radio Repairs and Sales. The Franchisee, its officers, directors and employees acting on behalf of Franchisee shall not engage directly or indirectly in the business of selling or repairing television or radio sets. Section 12. Free Service. The Franchisee shall provide a cable drop and an outlet along its cable route, at no cost, to public schools, police and fire stations, public libraries and other public buildings designated in writing by the City of Ocoee. In addition, Franchisee will provide, at cost, all design specifications, construction, equipment and parts needed to provide service and additional outlets to the buildings spe- cified in this section. The basic level of service is to be provided at all such outlets without charge. The Franchisee shall provide closed circuit television coverage each week of City Commission Meetings, public meetings, public events, and community activities, in accordance with the policies and sche- dules to be agreed upon between Franchisee and the City. Section 13. Removal of System. Upon termination of the period of the franchise or of any renewal thereof by passage of time or otherwise, the Franchisee shall remove its supporting structures, poles, transmission and distribution systems and other appurtenances from the streets, ways, lanes, alleys, parkways, bridges, highways and other public places in, over, under and along which they are installed and shall restore the areas to their original condition. If such removal is not completed within twelve (12) months of such termination, the City may deem any property not removed as having been aban- doned. Section 14. Repairs and Restoration. Whenever the Fran- chisee takes up or disturbs any pavement, sidewalk or other improvement of any public way or public place, the same shall -7- . . be replaced and the surface restored in as good condition as before entry, as soon as practicable. If the Franchisee fails to make such restoration within a reasonable time, the City of Ocoee, may fix a reasonable time for such restoration and repairs and shall notify the Franchisee in writing of the restoration and repairs required and the time fixed for the performance thereof. Upon failure of the Franchisee to comply within the time specified, the City of Ocoee, may cause proper restoration and repairs to be made and the expense of such work shall be paid by the Franchisee upon demand by the City of Ocoee. Section 15. Transposition of Siqnals. If the Franchisee transposes any television signals from the channel on which it was originally broadcast so that it is received on a different channel on the receiving sets of subscribers, it shall notify its subscribers in writing of such transposition and provide them with a marker suitable for mounting on a television receiver indicating the fact of the transposition. Section 16. Equal Time. If the Franchisee permits any person who is a legally qualified candidate for any public office to employ the facilities of its system, or originate and disseminate political campaign material, it shall afford equal opportunities to all other such candidates for the same office to use such facilities to originate and disseminate any views concerning a controversial issue of public importance, and shall afford reasonable opportunity for the presentation over its facilities of contrary points of view. The Franchisee shall be guided by, and its decisions shall be consistent with those of the FCC under similar provisions of the Communications Act of 1934, as amended, and of policies established by the FCC. Section 17. Performance Bond. The Franchisee shall main- tain, with the City, a bond with a surety company licensed to do business in Florida, with corporate surety satisfactory to such authority in the amount of twenty-five thousand ($25,000.00) dollars. The condition and terms of said bond shall be as follows: -8- (1) The satisfactory operation of the cable system, in accordance with the provisions of this franchise. (2) The indemnity of the City, in accordance with the provisions of this franchise. (3) The satisfactory removal of its system, in accordance with the provisions of this franchise. (4) The satisfactory restoration of pavements, sidewalks, and other improvements, in accordance with the ~ provisions of this franchise. Section 18. Service Interruptions. In the event Fran- chisee's service to any subscriber is interrupted for twenty- four (24) or more consecutive hours, Franchisee will grant such subscriber a prorated credit or rebate. It is the responsibil- ity of the customer to notify the cable operator of any service interruptions. Section 19. Placement of Wires and Other Equipment: Trees. 19.1. In all sections of the City where the cables, wires or other facilities of public utilities are placed under- ground, Franchisee shall place its cable, wires or other like facilities underground to the maximum extent that the cost and existing technology, as determined by the City, reasonably permit Franchisee to do so. In the event that the City may, in the future, require public utilities to further place their cables, wires or other facilities underground in areas presently served aerially, Franchisee shall also place its cables, wires or other like facilities underground without expense or liability to the City, or direct charge to the subscribers. 19.2. Franchisee shall have authority, with the con- ~ currence of the City Department of Public Works, to trim trees upon and overhanging streets, alleys, sideways and public ways and places of the City, so as to prevent the branches of such trees from coming in contact with the wires, cables and equip- ment of Franchisee. Section 20. Operation. Service and Maintenance of System. 20.1. Franchisee shall maintain and operate a modern -9- . . Cable Communications System and render efficient service con- sistent with all applicable regulations to subscribers during the term of this franchise. The construction, maintenance and operation of the Cable Communications System for which this franchise is granted shall be done in conformance with OSHA, the National Electrical Code, the National Electrical Safety Code, the National Television Standard Code and the Rules and Regulations of the FCC, as the same exist, or as they may be hereafter changed or amended. Further, Franchisee shall install and maintain its wire, cable, fixtures and other equip- ment in such a manner as shall not interfere with any installa- tion of the City, or any public utility serving the City. 20.2. All structures and all lines, equipment and con- nections in, over, and upon streets, sidewalks, alleys and public ways and places of the City, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition and in good order and repair. 20.3. The signal of any television, radio station or satellite carried on the Cable Communications System shall be carried without material degradation in quality within the limits imposed by the FCC. 20.4. Franchisee shall maintain a complete set of maps of the City. Such maps shall be updated and revisions thereof submitted to the City of Ocoee, on request. The maps will show the location of all streets, residences, wire, cables and other facilities used by Franchisee located in the City. 20.5. Franchisee shall comply with all FCC regulations as they now apply or as they may be amended regarding the carriage of television and radio signals. 20.6. Franchisee shall, upon the request of any person holding a building moving permit issued by the City, tempo- rarily raise or lower its wires to permit the moving of the buildings. Franchisee shall be given not less than seven (7) days advance notice to arrange for such temporary wire changes. Costs for such services will be billed and paid for in advance of such services being performed. -10- . . Section 21. System Specifications. In addition to the specifications expressly provided for in this franchise, Franchisee shall construct and maintain a cable communications system for the City that will, at a minimum, carry the signals of any television or radio station without material degradation in quality within the limits set forth by the FCC. The cable television system shall be operated and maintained so as to comply with the technical standards set forth in Subpart K of the FCC's Rules and Regulations as they apply to cable televi- sion systems. The Franchisee agrees that the cable system shall have a capacity of at least thirty (30) video channels. Section 22. Leased Access Channels. The Franchisee shall maintain at least one (1) specially designated channel for leased access uses. In addition, other portions of its non- broadcast bandwidth, including unused portions of the specially designated channels, shall be available for leased uses. On at least one of the leased channels, priority shall be given to part-time users. The Franchisee shall provide unused channel capacity on a non-discriminatory, first-come, first-serve basis for leased access cablecasting to any person, group, organiza- tion or entity upon the filing of an appropriate request there- for. The Franchisee shall establish operating rules, subject to the approval of the City, which shall govern the operation of the leased access channels. These rules shall prohibit the presentation of lottery information, except as specifically permitted by FCC rules. In addition, these rules shall require adequate sponsorship identification whenever an access channel user presents any matter for which he receives money, service or other valuable consideration. It is still premature to spe- cify the rates that will be charged to users of the leased access channels. However, when such rates are finalized, based on experience gathered from the actual operation of the leased channels, such rates shall be fair and reasonable. Section 23. Sional Carriaoe. The Franchisee shall carry all signals mandated by the FCC and in addition it will carry a variety of off-air, satellite and microwave delivered signals -11- . . and services available now or in the future, and shall also carry selected FM stereo signals. Section 24. Company Services. Subscriber rates for cable service shall not be regulated by the City. Franchisee shall provide at least the following services: 24.1. Standard Installation. Standard installation consisting of an aerial drop, not exceeding one hundred fifty (150) feet, from a single pole attachment to the customer's residence. Drops in excess of one hundred fifty (150) feet, concealed wiring, and all underground drops shall be charged according to the rate schedule. 24.2. proiect prewirinq. (1) Franchisee shall provide service to prewired projects according to the terms and conditions and at such rates provided in the rate schedule. (2) Franchisee shall review and approve methods and materials, supply specifications, technical assistance, and material according to the rate schedule. (3) Franchisee shall prewire a project upon request according to rate schedule. 24.3 Deposits. Franchisee may require a deposit for materials, converters and services according to the rate sche- dule as it may be amended from time to time. 24.4 Additional Outlets. Franchisee shall provide additional outlets, as customers may request, according to the rate schedule. 24.5 Transfers. When a current customer moves from one address within the franchised area to a second address within the franchised area and there is no lapse in service, Franchisee shall transfer service at a rate according to the rate schedule. 24.6. Reconnection. Franchisee shall restore service to customers wishing restoration of service provided the customer shall first satisfy any previous obligation owed. 24.7. Relocation or Extension of Cable. When a current customer requests that an extension or relocation of -12- . . said customer's cable service be made, the Franchisee shall do so according to the rate schedule. 24.8. Service Calls. Franchisee shall provide CATV system repair service to customer's premises to test and repair services. Section 25. Complaints. Local Office. 25.1. Franchisee shall maintain a business office in the Ocoee area, with a toll-free number and a twenty-four (24) hour answering service, which subscribers may call without incurring added message or toll charges so that prompt main- tenance service shall be available. 25.2. Upon reasonable notice, Franchisee shall expedi- tiously investigate and resolve complaints regarding the quality of service, equipment malfunctions and similar matters. 25.3. Franchisee shall normally respond to all service calls within twenty-four (24) hours and correct malfunctions as promptly as possible after its discovery. For these purposes, Franchisee shall maintain a competent staff of employees sufficient to provide adequate and prompt service to its subscribers. 25.4. Upon request of the City, Franchisee shall, within ten (10) days after receiving such a request, send a written report to the City, with respect to any complaint. Such a report shall provide a full explanation of the investi- gations, findings and corrective steps taken. 25.5. Except where there exists an emergency situation necessitating a more expedited procedure, Franchisee may interrupt service for the purpose of repair or upgrading of the cable communicating system, only during periods of minimum use. 25.6. Should a subscriber have an unresolved complaint regarding cable television operations, the subscriber shall be entitled to file his complaint with the City, which shall have primary responsibility for the continuing administration of the franchise and the implementation of complaint procedures. The subscriber shall thereafter meet jointly with the City, or its designee, and a representative of Franchisee, within thirty -13- . . (30) days of the subscriber's filing of his complaint, to fully discuss and resolve the matter. Franchisee shall notify each new subscriber at the time of initial subscription to the cable service of the procedures for reporting and resolving such complaints. Section 26. Companv Rules and Reoulations. The Franchisee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable Franchisee to exercise its rights and perform its obligations under this franchise, and to assure an uninterrupted service to each and all of its customers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provi- sions hereof or applicable State and Federal laws, rules and regulations. Section 27. Cooperation with Desionated Representative. The Franchisee agrees to cooperate with any designated repre- sentative of the City, in all matters concerning the operation of the cable system in the City of Ocoee. Section 28. Franchise Fee. 28.1. The fee paid to the City, during the term of the franchise shall be three (3%) per cent of the gross annual revenue derived by Franchisee from all of its operations located within the City of Ocoee. 28.2. The franchise fee shall be paid quarterly, to the City Clerk's Office, and Franchisee shall file a complete and accurate verified statement of all gross annual revenue within the City, during the period for which said quarterly paYment is made, and said payment shall be made to the City, not later than thirty (30) days after the expiration of the quarter when due. 28.3. The City shall have the right to inspect Franchisee's income records and the right to audit and recom- pute any amounts determined to be payable under this franchise; provided, however, that such audit shall take place within thirty-six (36) months following the close of each of -14- Franchisee's fiscal years. Any additional amount due to the City, as a result of the audit, shall be paid within thirty (30) days following written notice to Franchisee by the City, which notice shall include a copy of the audit report. Section 29. Availability of Books and Records. The Franchisee shall fully cooperate in making available at reason- able times, and the City shall have the right to inspect the books, records, maps, plans and other like materials of ~ Franchisee applicable to the Ocoee Cable Communications System, at any time during normal business hours; provided however, where volume and convenience necessitate, Franchisee may require inspection to take place on Franchisee's premises. Section 30. Revocation of Franchise. The franchise issued hereunder may, after hearing, be revoked by the City, for any of the following reasons: (1) For failure to file and maintain a bond, or to maintain insurance as required by this franchise. (2) For repeated failure to correct violations of this franchise after formal written notice has been served upon Franchisee. (3) For repeated failure to maintain signal quality under the standards provided for by the FCC and this franchise. ~ (4) For any transfer or assignment of a franchise or control thereof without consent of the City, as required by this franchise. Section 31. Privacy and Rights of Information. The Franchisee shall not make available to any third party, including the City, information concerning the viewing habits of any individual subscriber or subscriber-households' without the prior written consent of the subscriber. The Franchisee shall provide written notice to each subscriber or subscriber- household, and only after written permission has been granted by the subscriber will equipment be installed on the system which would permit the recording or monitoring of individual viewing habits. The requirements of this section shall not -15- prohibit the City, or their designee, from obtaining from Franchisee general demographic and market data and information on number of subscribers. The Franchisee shall not make subscriber lists available to a third party, other than as required to conduct the normal business operations of the system. Section 32. Equal Opportunity. The Franchisee shall be an Equal Opportunity Employer and, pursuant to 47 CFR S76.311, and ~ other applicable regulations of the FCC, must file an Equal Employment Opportunity Program with the FCC, and otherwise comply with the FCC Regulations with respect to Equal Employ- ment Opportunities. A copy of said program shall also be filed with the City. Franchisee shall take affirmative steps to avoid discrimination and, to the extent practicable, encourage training and employment of minority personnel. Section 33. Right of Condemnation. Nothing in the fran- chise shall limit any rights that the City may have under applicable law to acquire by condemnation, confiscation or otherwise, any property of the Franchisee; provided, however, that any such acquisition shall be for a cash price that values the business at fair market value as an ongoing business enter- prise. Section 34. Severability. If any section, paragraph, term or provision of this franchise is determined to be illegal, invalid or unconstitutional by any court of competent jurisdic- tion, or by any State or Federal regulatory agency having jurisdiction thereof, such determination shall have no effect on any other section, paragraph, term or provision hereof, all of which will remain in full force and effect for the terms of ~ the franchise or any renewal or renewals thereof. Section 35. Effective Date. This Ordinance shall take effect upon becoming a law. ENACTED this ~ day of Novprrhpr , 1988. CITY OF OCOEE, FLORIDA By:YL p~~ Thomas R. Ison, Mayor -16- . . ATTEST: Jean 1745J Advertised September 18, 22, 25, 29, 1988 October 2, 6, 9, 13, 1988 November 6, 10, 1988 Read First Time October 18, 1988 Read Second Time and Adopted November 15, 1988 -17-