Loading...
HomeMy WebLinkAboutOrdinance 1009 not passed . FIRST READING: 8""18-87 S~OND READING :--9-15-BY ---" ' J~ Gf //~ AN ORDINANCE GRANTING TO AMERICAN TELEVISION &: (/ ~ COMMUNICATIONS CORPORATION, A DELAWARE CORPORATION DOING BUSINESS AS CABLEVISION OF CENTRAL FLORIDA, A NON-EXCLUSIVE FRANCHISE TO INSTALL, MAINTAIN AND OPERATE A CABLE SYSTEM FOR THE DISTRIBUTION OF TELEVISION SIGNALS, FREQUENCY MODULATED RADIO SIGNALS AND CLOSED CIRCUIT TELEVISION PROGRAMS FOR A SPECIFIC TERM; PROVIDING CONDITIONS, LIMITATIONS AND REQUIREMENTS OF THE SYSTEM, STIPULATING PROTECTIVE AND INDEMNITY PROVISIONS; PROVIDING FOR CERTAIN PAYMENTS TO THE CITY OF OCOEE; PROVIDING FOR CITY'S RIGHTS IN FRANCHISE; PROVIDING TECHNICAL AND SAFETY REQUIREMENTS; PROVIDING FOR ACCEPTANCE; RESTRICTING ASSIGNMENTS, SUBLEASES AND ENCUMBRANCES; PROVIDING FOR EXTENffiON OF FRANCHffiE TO ANY NEWLY-ANNEXED TERRITORIES; PROVIDING FOR THE SEVERABILITY OF THE PARTS HEREOF; AND PROVIDING AN EFFECTIVE DATE. ! //,' II l ( (' / ~)~ /- l~jl\' ( .1 \. ORDINANCE NO. 1009 BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA: Section 1. GRANT AND TERM The City of Ocoee, Florida, herein called "City", hereby grants to American Television &: Communications Corporation, a Delaware corporation doing business as Cable Vision of Central Florida, herein called "Grantee", the right and privilege to install, maintain and operate within the rights-of-way, except as hereinafter limited, of all public streets, parkways, alleys and utility easement strips within the City, herein for convenience called "streets", Grantees cables and other conductors, not including antennas, with the necessary appurtenances, herein called Grantee's "system", for distribution of television and communication signals, frequency modulated radio signals and television programs to Grantee's subscribers, for the period of time beginning on the effective date of this ordinance and ending on its tenth anniversary date. . Section 2. CONDITIONS, LIMITATIONS AND REQUIREMENTS. This grant is made upon the following conditions, limitations and requirements, as well as such other obligations of Grantee which are set forth in this ordinance and franchise. . . (a) All installations shall be done only in accordance with plans first submitted to and approved by the City. Any repair work which requires the disturbance of the surface of any street or which will interfere with traffic shall not be undertaken without approval by the City of the time and manner of doing the work. (b) Grantee's system shall be installed above ground in areas where existing power and telephone cables, wires, poles and similar facilities are above ground and underground in areas where existing power and telephone cables, wires and facilities are installed underground. Grantee shall have the right (in its own capacity or by agreement with any person, firm or corporation now or hereafter authorized by license, franchise or otherwise) to erect and maintain overhead or underground wires, cables and facilities for the purpose of sharing these facilities, it being the intent hereof that all above-ground installations of Grantee's system shall be accomplished on existing utilities poles and conduits and in existing easements where feasible. Grantee shall relocate any above- ground portion of its system underground in any area where existing power and telephone facilities are hereafter so relocated. Any such relocation shall be at Grantee's expense, and such relocation shall be accomplished concurrently with relocation of any such power and telephone facilities. (c) The right to use the City's streets herein granted is subject to the terms of all rights or franchises heretofore granted by the City to electric utility companies or to companies primarily engaged in the rendering or telephone service. (d) All installations shall be done in a neat and workmanlike manner. All construction shall conform to the requirements of the National Electric Safety Code and to all federal, state, or local statutes, regulations and ordinances governing the same or similar installations. (e) Where, in doing its work, Grantee disturbs any pavement or other improvements, Grantee shall promptly repair and replace the same in a neat and workmanlike manner as nearly equal to its original condition as possible. -2- . . (f) Grantee's work, while in progress, shall be properly protected 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. (g) Grantee shall promptly and at its own expense relocate or modify any part of its system which the City may reasonably request in order to accommodate improvements to such streets or to accommodate City sewer, water, electric, communications or other facilities occupying any part of the public streets and to accommodate the facilities of other public or private utilities as may be required by the City or other public authority having jurisdiction. (h) Grantee shall, on the request of any person holding a building moving permit or other formal authorization issued by City, temporarily raise or lower its wires and cables to permit the moving of buildings or structures. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary changes. (i) It is understood that there may be from time to time within the City various streets as defined in Section I of this ordinance which the City does not have the unqualified right to authorize Grantee to use, because of reservations in favor of the dedicators or because of other legal impediments; therefore, in making this grant, the City does not warrant or represent as to any particular street or portion of a street that it has the right to authorize Grantee to install or maintain portions of its system therein, and in each case the burden and responsibility for making such determination in advance of the installation shall be upon Grantee. (j) Grantee shall have the privilege of transmitting programs on its cable system unless restricted by state or federal agencies having jurisdiction over the Grantee's activities. Grantee shall not transmit over its cable system to subscribers -3- . . residing within City any matter which is obscene. Upon request by City, Grantee shall make available to its subscribers, at reasonable cost, such devices as are reasonably appropriate for allowing such subscribers to restrict access of other members of their household to programs transmitted over Grantee's system. (k) If Grantee shall fail to make any repair, remove or relocate any part of its system, or otherwise perform its obligations hereunder within a customarily reasonable time and in a workmanlike manner, then the City is hereby authorized to do the same, or authorize others to do same, at Grantee's expense, and Grantee shall reimburse the City for the cost thereof promptly upon receipt of an invoice. (1) Grantee shall permit the City to inspect and test the system's technical equipment and facilities upon reasonable (12-24 hours) notice. (m) Any pavements, sidewalks, curbing or other paved area taken up or any excavations made by Grantee shall be done under the supervision and direction of the City under permits issued for work by the proper officials of the City, and shall be done in such manner as to give the least inconvenience to the inhabitants of the City. Grantee shall, at its own cost and expense, and in a manner approved by the City, replace and restore any such pavements, sidewalks, curbing or other paved areas in as good a condition as before the work involving such disturbance was done, and shall also make and keep full and complete plats, maps and records, including, but not limited to, "as built" drawings, showing the exact locations of its facilities within the City. These maps shall be available for inspection by the City at any time during the Grantee's normal business hours. (n) A Grantee shall have authority to trim the trees upon and overhanging the public streets so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee, except that, at the option of the City, such trimming shall be done by it or under its supervision and direction at the expense of the Grantee. (0) In accepting this franchise, Grantee acknowledges that its rights hereunder are subject to the police powers of the City to adopt and enforce ordinances for the -4- safety and welfare of the public; and Grantee agrees to comply with all applicable general laws and ordinances enacted by the City. . Section 3. COMPLAINTS, LOCAL OFFICE. (a) To assure that prompt service and billing information shall be available to subscribers, Grantee shall maintain a business office in Orange County with a toll-free number and a twenty-four (24) hour answering service which subscribers may call without incurring added message or toll charges. Grantee shall maintain sufficient phone lines and answering capability that calls regarding service and billing are not unreasonably hindered or delayed. (b) Upon reasonable notice, Grantee shall expeditiously investigate and resolve complaints regarding the quality of service, interruptions, equipment malfunctions and similar matters. (c) Grantee shall normally respond to all service calls within twenty-four (24) hours and shall correct malfunctions as promptly fiS possible after their discovery. For these purposes, Grantee shall maintain a competent staff of employees and inventory of equipment sufficient to provide adequate and prompt service and maintenance to its subscribers. (d) Grantee shall, within ten (10) days of written request from the City, send a written report to the City with respect to any complaint regarding service or billing practices which City requests Grantee to investigate. Such a report shall provide a full explanation of the investigation, findings and, when appropriate, corrective steps taken. (e) Except where there exists an emergency situation necessitating a more expedited procedure, Grantee shall only interrupt service for the purpose of repair or . upgrading of the cable communicating system during periods of minimum use. Section 4. PROTECTIVE AND INDEMNITY PROVISION. (a) Grantee shall save City harmless from all loss sustained by City on account of any suit, judgment, execution, claim or demand whatsoever arising out of the -5- construction, operation, maintenance, or removal of the system or any portion thereof by Grantee. . (b) Grantee shall maintain, and by its acceptance of this franchise specifically agree that it will maintain throughout the term of this franchise, liability insurance insuring the City and Grantee with regard to all damages mentioned in subparagraph (a), above, in the minimum amounts of: 1. $500,000.00 for bodily injury or death to anyone person, within the limit, however, of $1,000,000.00 for bodily injury or death resulting from anyone accident; and 2. $250,000.00 for property damage resulting from anyone accident. After the fifth anniversary of this franchise, these limits of insurance coverage may be increased by the City, after ninety (90) days' notice to Grantee, to account for increases in the cost of living. (c) A certificate of insurance evidencing the insurance policy or policies obtained by Grantee in compliance with this section shall be filed with the City at the time of Grantee's acceptance of this franchise. A current certificate of such insurance policy or policies shall be filed by Grantee and maintained with the City Clerk during the term of this franchise. Said certificate shall clearly indicate that the insurance coverage provided under said policy of insurance may not be cancelled or revoked without ninety (90) days' written notice to City. Section 5. OPERATION AND MAINTENANCE OF SYSTEM. (a) The Grantee shall render efficient service, make prompt repairs, and interrupt service only for good cause and for the shortest time practicable. Such . interruptions shall, insofar as practicable, be preceded by notice to affected subscribers, and shall occur during periods of minimum use of the system. (b) The Grantee shall at all times be solely responsible for complying fully with all applicable regulations from time to time established by the Federal -6- Communications Commission (FCC) and any other agency which now or hereafter has jurisdiction over the activities of Grantee. . (c) Grantee expressly undertakes and agrees that it will at all times during the term hereof transmit signals of strength and quality, and use such material and components, as are necessary to insure that Grantee's subscribers will receive a quality of cable television and communications service in keeping with the highest standards of the cable television industry. (d) The Grantee shall at all times employ ordinary care, and shall install and maintain in use commonly-accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. (e) Upon termination of service to any subscriber, Grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request. (f) Grantee shall maintain all parts of its system in good condition and in accordance with standards generally observed by the cable television industry. Sufficient properly-trained employees and equipment shall be available to provide safe, adequate and prompt service for all of its facilities. (g) Planned interruption of sevice shall be only for good cause. Insofar as possible, planned service interruptions shall be preceded by notice, be of brief duration, and occur during minimum viewing hours. (h) The City reserves the right to establish standards of service including, but not limited to: requiring prompt response to subscriber complaints, prompt repair and restoration of service, and adequacy of signal quality; provided such standards are . uniformly applied to franchisees operating cable television systems within the City and further provided that such standards are not commercially impracticable and would not violate the Cable Communications Policy Act of 1985 or other applicable law. -7- In addition to the specifications expressly provided for in this franchise, Grantee 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 and within such limits as may be established or recommended by the Federal Communication Commission (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 or in similar rules of the FCC, now or hereafter adopted, applicable to cable television systems. Grantee agrees that the cable system shall have a capacity of at least thirty (30) video channels. (i) In the event Grantees' service to any subscriber is interrupted or materally degraded for twenty-four (24) or more consecutive hours, or for a total of more than thirty-six (36) hours during any calendar month, Grantee will grant such subscriber a prorated credit or rebate for the entire time during that month for which service was interrupted or degraded. However, it shall be the responsibility of the subscriber to notify the Grantee of any such service interruptions or degradations within ten (10) days of the date thereof. Section 6. PUBLIC SERVICE INSTALLATIONS AND PROGRAMS. (a) The Grantee shall provide its basic cable television service without installation charge or monthly service charge to any or all of the following buildings or facilities within the City if Grantee's system has been extended to within 100 feet of the site, measured by straight line: public schools or colleges, City Hall and other municipal offices and departments including the fire department and police department. . (b) In the case of any emergency or disaster, Grantee shall, upon request of the City, cooperate with the City to facilitate emergency communciation during the emergency or disaster period. -8- (c) Upon request of the Mayor or City Commission, Grantee shall tape for rebroadcast regular meetings of the Ocoee City Commission. Grantee shall rebroadca~t . these meetings to all subscribers at least one (I) time during the week immediately following the meeting. Section 7. RESTRICTIONS ON ASSIGNMENT, SALE AND SUBLEASING. The rights and privileges hereby granted shall not be sold, assigned or sublet in whole or in part, nor shall Grantee's system or any part of it be sold, rented or subleased, nor shall Grantee mortgage or encumber the rights and privileges herein granted, without the prior consent of the City Commission of the City, given by resolution; provided, however, that permission for assignments, mortgages or other liens upon this franchise or upon Grantee's system shall not be unreasonably withheld in the event that any such assignment, lien, or encumbrance is made for the primary purpose of improving or expanding the existing network facilities. Prior approval of the City shall be required where ownership or control of more than thirty percent (30%) of the right of control of Grantee is acquired by a person or group of persons acting in concert, none of whom already own or control thirty percent (30%) or more of such right of control, singularly or collecti vely. Section 8. PAYMENTS TO THE CITY. (a) Grantee shall pay to the City a reasonable franchise fee for the right to use public rights of way within the City and for other privileges granted herein. This franchise fee shall be equal to five (5) percent of Grantee's gross subscriber revenues per year. Gross subscriber revenues shall mean those revenues derived by Grantee in connection with basic cable television service in the City, ..!..~., the carriage of broadcast . signals and non-broadcast services mandated by the FCC, programming supplied on a per- program or per-channel charge basis, if any, and equipment rented by subscribers. It shall not include any refunds or credits made to subscribers, taxes imposed on the services furnished by Grantee, revenue from ancillary or auxiliary services which include, but are -9- not limited to, advertising and leased channels. Franchise fees payable hereunder shall be paid quarterly and are due within thirty (30) days of the end of the quarter. . (b) Grantee shall file with the City, within ninety (90) days after the expiration of any calendar year during which its franchise is in force, a financial statement certified by a responsible officer of Grantee showing in detail the gross subsciber revenues, as defined herein, of the Grantee during the preceding calendar year or portion thereof. (c) The City shall have the right to inspect Grantee's records showing the gross subscriber revenues from which its franchise payments are computed and shall also have the right of audit and computation of any and all amounts paid hereunder. No acceptance of payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable hereunder or for the performance of any other obligation hereunder. However, an accounting rendered to the City and to which no exception is made within five (5) years after receipt by the City shall be deemed to be accurate and shall not thereafter be subject to question or made the basis of any claim by the City against Grantee. (d) Prior to acceptance of the franchise, Grantee shall satisfy itself that the franchise fees to be paid by Grantor to City are lawful and proper charges and that the rate structure reflects all costs of the franchise fees. By its acceptance of this franchise, Grantee acknowledges and agrees that the franchise fees payable hereunder are lawful and proper. Further, Grantee, by its acceptance of this franchise, agrees to defend the City and indemnify and hold City harmless from and against any claim (including attorneys' fees) by any person challenging the franchise fees charged by City hereunder. . Section 9. RENEWAL OF FRANCHISE. (a) At the expiration of the term for which this franchise is granted, this franchise may be renewed by the City for successive ten (10) year periods, upon the written request of Grantee, without soliciting additional applications. -10- (b) Upon considering such a request, the City shall follow the franchise renewal procedures required by Section 546 of the Communications Act of 1934 as of the . effective date of this ordinance, and other applicable federal or state requirements which may be hereinafter enacted, unless prohibited from doing so by law. Section 10. REVOCATION OF FRANCHISE AND OTHER PENALTIES. The franchise issued hereunder may, after hearing, be revoked by City, or the penalties set forth below may be imposed on Grantee by City, for any of the following reasons: (a) For failure to file and maintain a bond, or to maintain insurance as required by this franchise. (b) For continued failure to correct any violation of this franchise after Grantee has been given written notice thereof. (c) For repeated failure to maintain signal quality under the standards provided for by the FCC and this franchise, and the standards hereinafter adopted by City. (d) For any unauthorized transfer or assignment of a franchise or control thereof without consent of the City. (e) In addition to revocation of this franchise, City may impose any other administrative or judicial penalty or remedy allowable by law including, but not limited to: specific performance, reimbursement for damages suffered by City, moritoria on construction or on the addition of subscribers. (f) The parties agree that the terms and conditions of this franchise are specifically enforceable and may be enforced by injunction or other appropriate . procedures. Grantee shall pay all of City's reasonable attorneys' fees incurred by City in connection with City's enforcement of the terms and conditions of this franchise. -11- Section 11. MAPS AND REPORTS TO BE FILED BY GRANTEE. (a) Grantee shall, upon request of the City, file with the City Clerk true and . accurate maps or plats of all installations. (b) Grantee shall file annually with the City Clerk, not later than sixty (60) days after the end of Grantee's fiscal year, a copy of its report to its stockholders (if it prepares such a report). (c) Grantee shall file annually with the City Clerk a list of its officers, directors, and its registered agent. Section 12. CONSTRUCTION. (a) Grantee shall extend the installation of cables, amplifiers and related equipment throughout the area covered by its franchise as rapidly as practicable. Specifically, Grantee agrees that within one (I) year from the date of its acceptance of this franchise it shall accomplish construction of twenty-five percent (25%) of the proposed cable system within the City and shall thereafter equitably and reasonably extend energized trunk cable to a substantial percentage of the City each year. A substantial percentage is hereby determined to be fifteen percent (15%) of the homes within the City. Failure to accomplish said significant construction of the proposed cable system may result in cancellation of this franchise by the City. (b) Grantee, by accepting this franchise, warrants that it is capable of providing service to every dwelling unit within the franchise area except to the extent that density of homes, adverse terrain, or other factors render making service available impracticable. For the purposes of determining compliance with the provisions of this Section 12, and to provide for a reasonable policy requiring extension of energized trunk . lines of the cable system within the franchise area so as to achieve compliance with the obligations imposed by this section, Grantee shall extend such lines to all areas of the franchise area having a minimum of forty (40) homes per street mile. In measuring street miles, the beginning point shall be from the last subscriber unit. -12- . (c) In the event the operation of any part of a cable television system is discontinued for a continuous period of twelve (12) months, or in the event such system has been installed in any public street without complying with the requirements of the Grantee's franchise, the Grantee shall promptly, upon being given ten (10) day's notice, remove from the streets or public places all such property, poles cables and wires of such system. Any property which the Grantee allows to remain in place sixty (60) days after having been notified by the City that it must be removed shall be considered permanently abandoned and shall, at the City's option: (I) become the property of the City, or (2) be removed by the City at the cost of Grantee. (d) Upon the failure of Grantee to satisfactorily complete any work upon the public streets as may be required by law or the terms of its franchise within the time prescribed, the City, at its option, may cause such work to be done and the Grantee shall pay to the City the cost thereof within thirty (30) days after receipt of an itemized report. Section 13. EXTENSION OF MUNICIPAL LIMITS. Upon the annexation of any territory of the City, the right and franchise hereby granted shall extend to the territory so annexed; and all facilities owned, maintained or operated by Grantee which is located or installed within the territory so annexed shall thereafter be subject to all the terms hereof. Section 14. DISPOSITION OF ASSETS UPON NON-RENEWAL OR REVOCATION. Upon termination of the period of the franchise or of any renewal thereof by passage of time or otherwise, or upon revocation of this franchise for cause, Grantee . shall, upon request of City, remove its supporting structures, poles, tramsmission 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 -13- . completed within ninety (90) days of such termination, the City shall automatically acquire title thereto and may remove such items and charge Grantee its costs therefore, or may sell such items on such terms as City deems appropriate. If renewal of this franchise is denied and the City acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be at fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself. If this franchise is revoked for cause and the City acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acqusition or transfer shall be at an equitable price. Section 15. ACCEPTANCE BY FRANCHISEE. If Grantee fails to accept this franchise and all the conditions of this Ordinance and franchise by having its President sign an acceptance of this Ordinance and franchise at the end hereof within fifteen (I5) days of the effective date hereof, all rights and privileges granted to Grantee hereunder shall lapse and be of no force and effect. Section 16. NON-DISCRIMINATION. Grantee shall not deny access to its cable service to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. Grantee shall be an Equal Opportunity Employer. Pursuant to. applicable regulations of the Federal Communication Commission (FCC), Grantee shall file an Equal Employment Opportunity Program with the FCC and shall promptly thereafter submit a copy thereof to the City. Grantee shall take affirmative steps to avoid discrimination . based on age, sex, race, religion, national origin or handicap and, to the extent practicable, shall encourage training and employment of minority personnel. -14- Section 17. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion of this Ordinance . is for any reason held invalid or unconstitutional by any Court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof. Section 18. CONFLICTING ORDINANCES. All ordinances and parts of ordinances in conflict herewith shall be and the same are hereby repealed; provided, however, that the City shall not hereby be deemed to have surrendered any part of its control over the street, nor shall any other franchise granted to any other person, firm or corporation be deemed to be repealed in any respect herewith. Section 19. EFFECTIVE DATE This Ordinance shall take effect immediately upon its final passage and adoption PASSED AND ADOPTED this day of , 1987 FIRST READING: SECOND READING: MAYOR ATTEST: CITY CLERK . -15- . . This Ordinance and Franchise and all the terms and conditions hereof are hereby accepted by AMERICAN TELEVISION &: COMMUNICATIONS CORPORATION, D/B/A CABLEVISION OF CENTRLA FLORIDA, and said corporation does herey agree to accept the same and be bound hereby this day of , 1987. AMERICAN TELEVISION &: COMMUNICATIONS CORPORATION D/B/A CABLEVISION OF CENTRAL FLORIDA By: ATTEST: -16-