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HomeMy WebLinkAboutOrdinance 1005 not passed ORDINANCE ~I/Y 1 No.1 (jf)5 -~ ," 1 . AN ORDINANCE PROVIDING FOR THE ISSUANCE OF A NON-EXCLUSIVE FRANCHISE TO INSTALL, OPERATE AND MAINTAIN COMMUNITY ANTENNA TELEVISION SYSTEMS (CATV) AND OPERATE IN, UNDER, OVER, ALONG, ACROSS AND UPON THE STREETS, LANES, AVENUES, SIDEWALKS, ALLEYS, BRIDGES AND HIGHWAYS AND OTHER PUBLIC PLACES WITHIN THE INCORPORATED LIMITS OF OCOEE, FLORIDA, AND SUBSEQUENT ADDITIONS THERETO; PROVIDING FOR INCLUSION IN OCOEE CODE: PROVIDING FOR DEFINITIONS, PROVIDING FOR SEVERABILITY, AND EFFECTIVE DATE, PENALTY, LIABILITY AND TRANSFERABLE RIGHTS AND DUTIES: PROVIDING FOR FRANCHISING: PROVIDING FOR THE CONSTRUCTION AND INSTALLATION OF CATV SYSTEMS: PROVIDING FOR LIABILITY AND INDEMNIFICATION BY GRANTEE: PROVIDING FOR SIGNAL QUALITY REQUIRE- MENTS AND TECHNICAL SPECIFICATIONS: PROVIDING FOR SERVICE QUALITY, PROVIDING FOR PUBLIC SERVICE RIGHTS: PROVIDING FOR REPORTS TO BE FILED AND RECORDS TO BE INSPECTED: PROVIDING FOR TERMINATION: PROVIDING FOR FEES TO BE PAID TO OCOEE: PROVIDING FOR RIGHT OF GRANTEE TO PROMULGATE RULES, REGULATIONS, TERMS AND CONDITIONS TO CONDUCT ITS BUSINESS: PROVIDING FOR PROHIBITED ACTIVITIES BY GRANTEE: PROVIDING FOR TRANSFER OF GRANTEE'S PLANT OR SYSTEM: PROVIDING FOR REVIEW OF ORDERS AND DECISIONS OF THE CITY COUNCIL: PROVIDING FOR AMENDMENTS TO ORDINANCE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OCOEE, FLORIDA: SECTION 1. TITLE AND PURPOSE 1.1 Short Title. This ordinance shall be known and may be cited as "The City of Ocoee Community Antenna Television (CATV) Franchise Ordinance." 1.2 Purpose. This ordinance is enacted under the home rule power of the City for the purpose of providing necessary regulations, conditions and provisions which shall apply: (a) to granting and issuance of nonexclusive . franchises for the installation, operation and maintenance of community antenna television systems (CATV) within the City limits of the The City of Ocoee; and, (b) to provide reasonable and suitable protection and control over the use of City-owned easements and rights-of-way by CATV franchisees; all in the interest of the public health, safety and welfare of the citizens and inhabitants of The City of Ocoee, Florida. ~ . . 2 SECTION 2. DEFINITIONS. For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meaning given herein unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words in the Plural number includes the singular number, and words in the singular number include the plural. 2.1 "Access Channel" means (A) channel capacity designated for public educational, or governmental use; and (B) facilities and equipment for the use of such channel capacity. 2.2 "Basic Service" means any service tier which includes the retransmission of local television broadcast signals. 2.3 "Cable Channel" or "channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Commission by regulation). 2.4 "Cable Mile" means a linear mile of cable as measured on the street or easement parallel to the plant, but not to include non-standard line extensions or standard and non-standard drops. 2.5 "Cable Service" means (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming services, and (B) subscriber interaction, if any, which is required for the selection of such video programming or other programming services. 2.6 "Cable System" means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a -----4 . . 3 facility that serves only to retransmit the television signals of one or more television broadcast stations: (B) a facility that serves only subscribers in one or more multiple unit dwellings under common ownership, control or management, unless such facility or facilities uses any public right-of-way; (C) a facility of a common carrier which is subject in whole or in part, to the rules and regulations of the FCC except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or (D) any facilities of any electric utility used solely for operating its electrical utility systems. 2.7 "City" means the City of Ocoee, Florida. 2.8 "Converter" means an electronic device which converts signals not susceptible to reception by the television receiver of the subscriber to a signal which is susceptible of reception, and by an appropriate channel selector also permits the subscriber to view all signals delivered at designated dial locations. 2.9 "FCC" means the Federal Communications Commission, or its designee, or any successor to the powers of the FCC. 2.10 "FCC Approval" means any necessary authorization by the FCC to operate a CATV system in the City pursuant to the Communications Act of 1934, as amended, and all applicable FCC regulations. 2.11 "Franchise" means the nonexclusive authorization granted hereunder by the City to install, operate and maintain a CATV system upon the streets, public ways and places of the City. 2.12 "Franchisee" means the person granted a CATV franchise or anyone who succeeds the person in accordance with the provisions of this franchise ordinance. 2.13 "Gross Receipts" means all revenue derived and collected from the supplying of regular subscriber service, that is, monthly service charges, installation ----' . . 4 charges, disconnect and reconnect fees, fees derived and collected from public access and origination channels, all revenues received by the franchisee for pay-per-View, leased channels, premium channels, Pay television, and other equipment and services provided to subscribers by the cable system via its distribution facilities, less paYments made to program suppliers. Gross receipts shall not include sales taxes or franchise fees received from subscribers. However, franchise fees shall be limited only to the amount received exclusively from operation of said CATV system in the City of Ocoee. 2.14 "Conunercial Use Channel" means a video and/or audio or data channel which the franchisee may make available on terms for conunercial use by persons unaffiliated with the franchise for the purpose of transmitting progranuning, providing services, or exchanging information. 2.15 "Local Origination Progranuning" means progranuning that is either produced by the franchisee or is obtained from another source for transmission on the franchisee's public access channels. 2.16 "May" is permissive. 2.17 "Pay Television" means the delivery over the cable system of video signals to subscribers for a fee or charge (over and above the charge for basic or tiered service) on a per program, per channel or other subscription basis. 2.18 "Person" means any individual, partnership, joint venture, association, firm, corporation, club, society or other legally recognized entity, whether for profit or not for profit. 2.19 "Property of Franchisee" means all the property owned, installed, or used by a franchisee in the operation of a cable system in the City under the authority of a franchise granted pursuant to this ordinance. . . 5 2.20 "Public Notice" means publication of notice of the time, place and purpose of a hearing at least twice in a newspaper of general circulation in the City of Ocoee with the first publication not less than fourteen (14) days prior to the hearing and the second to be not less than five (5) days prior to the hearing. 2.21 "Public Street" means the surface of and the space above and below any street, terrace, avenue, road, highway, freeway, bridge, land, path, alley, court, sidewalk, parkway, drive, boulevard, or other public way, now laid out or dedicated, and all extensions thereof and all additions thereto, within the City limits of Ocoee. 2.22 "Public Works Director" means the Public Works Director of Ocoee, Florida, or his designee, or any successor to the power of the Public Works Director. 2.23 "Residential Subscriber" means a subscriber who receives any cable television service in an individual dwelling unit or multiple unit dwelling. 2.24 "School" means any institution of the Seminole County Public School System in the city limits of Ocoee or any duly accredited state operated local college or university within the city limits of Ocoee. 2.25 "Service" means any subscriber service, whether or not originated by the franchisee which is transmitted on any channel. 2.26 "Service Tier" means a category of cable service or other services provided by a cable operator and for which a separate rate is charged by the cable operator. 2.27 "Shall" and "Will" are mandatory, not merely directive. 2.28 "Signal" means any transmission of radio frequency energy or of optical information. 2.29 "Subscriber" means any person or entity receiving for any purpose any service. . . 6 SECTION 3. FRANCHISING PROVISIONS 3.1 Franchise Required. (a) Any individual, partnership, corporation or other entity desiring to install and operate any cable television system within the City Limits of Ocoee shall apply to the Council for a franchise pursuant to this ordinance. The issuance of a franchise pursuant to this ordinance shall allow the franchisee to install, construct, maintain and operate a cable system of origination, transmission and distribution of electronic signals including, but not limited to installation along, under, over, through, across and upon the public rights-of-way in accordance with the additional requirements of this ordinance throughout the area which is described in the franchise agreement and for which approval has been received. (b) Any individual, partnership, corporation or other entity desiring to install and operate any cable television system within the City Limits of Ocoee shall apply to the Council for a permit, granting the privilege to install, construct, maintain and operate a cable system of origination transmission and distribution of electronic signals along, under, over, through, across and upon the public rights-of-way under the jurisdiction of the City in accordance with such rules and regulations as shall be recommended by the City Engineer and approved by the Council. 3.2 Franchise Award Nonexclusive franchises may be awarded by the City Council for all or any portion of the City to applicants upon a finding that such award is consistent with the public interest, furthers the goal of providing efficient cable service to all residents of the City of Ocoee and does not result in material abuse of City streets, easements and rights-of-way. The City shall adopt by resolution such application and other administrative procedures and fees as 7 are deemed necessary and desirable for efficient administration of this ordinance. 3.3 License Application Procedure: Information Required. All applications to construct, operate, or . maintain any cable system within the city limits or to traverse any portion of the city for the transmitting or conveying of such service elsewhere, shall be filed with the Councilor such office of the City as it shall designate by resolution, and each such application shall set forth, contain, or be accompanied by the following: (a) The name, address and telephone number of the applicant. . (b) A detailed statement of the corporate or other business entity organization of the applicant, including but not limited to the following: (1) The names and business addresses of all general partners and corporate officers of the applicant. (2) The names and business addresses of all persons and entities having, controlling, or being entitled to have or control fifteen percent (15%) or more of the ownership of the applicant and the respective ownership share of each person or entity. (3) The names and addresses of any parent or subsidiary of the applicant and of any other business entity owning or controlling in whole or in part or owned or controlled in whole or in part by the applicant. (5) A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the fiscal year immediately preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a responsible lending institution or funding source, addressed to both the applicant and the City, setting forth a clear statement of its intent as a lending institution or funding source to I I 8 provide whatever capital shall be required by the applicant to construct and operate the proposed system in the city. (6) A statement identifying by place and date, any other cable television franchise(s) awarded to the applicant; the status of said franchise(s) with respect to completion thereof. . (c) A detailed description of the proposed plan of operation of the applicant. (1) A detailed statement describing the actual equipment and operational standards proposed by the applicant. (d) An application fee in a sum to be established by the City Council by resolution shall be in the form of cash, certified or cashier's check, or money order, to pay the costs of studying, investigating, and otherwise processing such application, which shall not be returnable or refundable in whole or in part. 3.4 Public Hearing on Applications. (a) Upon receipt of an application for a franchise submitted under the provisions of this article, the Council shall publish once a week for three (3) consecutive weeks in a paper of general circulation in the City of Ocoee a notice of consideration of a CATV franchise. Said notice shall name the applicant, describe the proposed service area, invite the filing of an application under the provisions of this article by all persons interested in establishing a cable system in the proposed service area, invite objections to the establish- . ment of a cable system in the proposed service area from existing cable systems and the general public and set a time and date certain, at least twenty-five (25) days from the date of the first publication or the notice, for a public hearing on all applications filed for the establishment of a cable system in said proposed service area and for all objections to the establishment of such cable system. 9 . (b) The initial application and all subsequent applications received prior to the public hearing shall be a matter of public record. Any application may be amended in writing at any time prior to the time and date of the public hearing. No amendments to filed applications, oral or written, and no new applications shall be received after the time and date set for the public hearing. The public hearing may be continued from time to time and from place to place as determined to be necessary by the Council. 3.5 Issuance of Franchise (a) The Council may issue one (1) or more franchises from the applications filed and considered at a public hearing after taking into consideration the following factors: (1) The financial stability of the applicant and the ability of the applicant to make the necessary investment to erect, operate and maintain the proposed cable system. . (2) The quality and technical reliability of the proposed system based upon the proposed plan of construction and the method of distribution of signals. (3) The experience of the applicant in the erection, operation and maintenance of a cable system. (4) The potential of disruption of future service by destructive competition because of the presence of too many competing companies based upon the number of potential subscribers in the proposed service areas. (5) The desirability and feasibility of granting additional rights and privileges to use the streets, alleys, public ways and public places of the City and the method of placement of the necessary wires, poles, cables, underground conduits, conductors and fixtures to operate and maintain the proposed system. (6) The location and type of permanent facilities proposed to be constructed for such cable system. 10 . (b) In considering the desirability of an additional or expanded cable operator, the City Council shall balance the desirability to promote competition in the cable television industry so as to promote (1) the provision of high-quality cable services at the lowest economic cost and (2) a diversity of information against the (1) ability of the City to regulate multiple cable operators and services, (2) disruption of public and private property by multiple cable operators, (3) economic viability of cable operators so as to make available high-quality cable services to the greatest number of Ocoee residents at the lowest economically feasible cost. (c) The Council shall notify in writing all applicants of its decision within thirty (30) days from the adjournment of said public hearing. Said notice shall specify the aforementioned factors that were determinative of its decision. All of the statements and declarations contained in the application shall be incorporated as conditions and material representations of any franchise that is issued by the Council, and the breach of any of such conditions and representations shall constitute cause for termination of the franchise by the Council. 3.6 Term and Termination of Franchise (a) No franchise shall be issued for a term longer than fifteen (15) years. All current CATV franchise agreements shall remain in effect until their respective date of expiration. However, any franchisee holding a current franchise under any previous ordinance may file for a renewal of its franchise pursuant to this ordinance and may have its franchise renewed for a period not to exceed fifteen (15) years pursuant to the terms and provisions of this ordinance. 3.7 Effective Date of Franchise (a) Any franchise granted pursuant to the provisions of this ordinance shall become effective as provided herein. . . . 11 (b) Within thirty (30) calendar days after the awarding of a franchise, or within such extended period of time as the Council in its discretion may authorize, the franchisee shall file with the Council its written acceptance of the franchise, together with the insurance policies and bonding required by Sections 13 and 14 hereof respectively, and its agreement to be bound by and to comply with all requirements pursuant to the provisions of this section or the franchise. Such acceptance and agreement shall be acknowledged by the franchisee before a notary public, and shall in form and content be satisfactory to and approved by the Council. 3.8 Business Authorization Any franchise granted pursuant to the provisions of this section shall authorize and permit the franchisee to engage in the business of operating and providing a cable system in all or a portion of the City, and for that purpose, subject to the approval of the City Engineer, to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public right-of-way or street, such poles, wires, cable, conductors, ducts, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the cable system; (and in addition, subject to the approval of the Public Works Director so to use, operate, and provide similar facilities or properties to use, operate, and provide similar facilities or properties rented or leased from other persons, including but not limited to any public utility or other franchisee furnished or permitted to do business in the City.) 3.9 Changes to Franchise Terms and Conditions Without prior approval of the Council, no changes in the terms of any franchise may be made, other than as specifically provided herein. 12 3.10 Franchise Fee (a) The franchisee shall pay as a franchise fee to the City the maximum percentage allowable by federal law, up to a maximum of five percent (5%) of the franchisee's gross receipts as defined herein or such greater percentage as may from time to time be approved by State or Federal law. . (b) Franchise paYments are due at the end of each calendar year. The percentage franchise fee paYments shall be due and payable to the City within thirty (30) days after the close of each calendar year following the effective date of this franchise. All amounts which are not paid when due and payable hereunder shall bear interest at the legal rate, as defined in Florida Statutes, until paid. (c) The City shall have the right and authority to inspect the franchisee's revenue records under the franchise and the right of audit and recomputation of any and all amounts payable under this Section. (d) 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 operational sums payable under this ordinance or for the performance of any other obligation hereunder until barred by the Statute of Limita- tions or until after three (3) years has passed from the date of receipt of paYment, whichever may be shorter. 3.11 Franchise Restrictions (a) Any franchise granted under this chapter shall be nonexclusive. (b) No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those prescribed herein. (c) Any privilege claimed under any such franchise by the franchisee in any street or other public property shall be subordinance to any other lawful occupancy of the streets or other public property. . . . 13 (d) Any such franchise shall be a privilege to be held in personal trust by the original grantee. Any transfer or assignment shall be made only with the prior written consent of the City. (e) Any franchise granted hereunder, shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by franchisee, or any successor to any interest of franchisee of or pertaining to the construction, operation or maintenance of any cable system in the City. 3.12 Application Fee (a) Each original, renewal, or transfer application submitted for a franchise under the provisions of this article shall be accompanied by an application fee in an amount determined by Resolution of the Council, to pay for the cost of evaluating said application for conformity with the provisions and conditions of this article. (b) Each franchise holder filing an application for expansion of its designated franchise area shall pay such application fee. 3.13 Renewal of Franchise (a) During the 6-month period which begins with the 36th month before the franchise expiration, the City may on its own initiative, and shall at the request of the franchisee, commence proceedings which afford the public in the franchise area appropriate notice and participation for the purpose of - (1) identifying the future cable-related community needs and interests; and (2) reviewing the performance of the franchisee under the franchise during the then current franchise term. (b) (1) Upon completion of a proceeding under subsection (a), a franchisee seeking renewal of a franchise may, on its own initiative or at the request of the City, submit a proposal for renewal. . . 14 (2) Any such proposal shall contain such material as the City may require, including proposals for an upgrade of the cable system. (3) The City may establish a date by which such proposal shall be submitted. (c) (1) Upon submittal by a franchisee of a proposal to the City for the renewal of the franchise, the City shall provide prompt public notice of such proposal and, during the 4-month period which begins on the completion of any proceedings under subsection (a), renew the franchise or, issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative, commence an administrative proceeding, after providing prompt public notice of such proceeding, in accordance with paragraph (2) below to consider whether - (A) The franchisee has substantially complied with the material terms of the existing franchise and with applicable law; (B) The quality of the franchisee's service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix, quality or level of cable service or other services provided over the system, has been reasonable in light of community needs; (C) The franchisee has the financial, legal, and technical ability to provide the services, facilities, and equipment as set forth in the franchisee's proposal; and (D) The franchisee's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of such needs and interests. 15 . (2) In any proceeding under paragraph (1) above, the franchisee shall be afforded adequate notice and the franchisee and the City, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceedings under subsection (a),), to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding. (3) At the completion of a proceeding under this section, the City shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding, and transmit a copy of such decision to the franchisee. Such decision shall state the reasons therefore. . (d) Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in subparagraphs (A) through (D) of subsection (c)(l), pursuant to the record of the proceeding under subsection (c). The City may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection (c)(l)(A) or on events considered under subsection (c)(l)(B). SECTION 4.0. RIGHTS IN ORDINANCE. (A) The right is hereby reserved to the City to adopt, in addition to the provisions contained herein and in existing applicable agreements, such additional regulations as it shall find necessary in the exercise of the police power; provided that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the terms and conditions of the franchise and the rights herein granted. (b) The City shall have the right, during the life of this ordinance to install and maintain free of charge upon the poles of the franchisee all wire and pole fixtures necessary for a police alarm system, or traffic control system on the condition that such wire and pole 16 . fixtures do not interfere with the present and future CATV operation of the franchisee. (c) The City shall have the right to inspect at the franchisee's business office the maps, plans, and other like materials of the franchisee at any time during normal business hours where such maps, plans and other materials are related to this ordinance or any franchise granted hereunder. . SECTION 5.0. INITIAL PERFORMANCE GUARANTEE. (a) Within one (1) year from the date of issuance of an original franchise or the extension of a service area, the franchisee shall accomplish construction of twenty-five per cent (25%) of the proposed cable system within said service area and shall thereafter equitably and reasonably extend energized trunk cable to a substantial percentage of its franchise area each year. A substantial percentage is hereby determined to be three percent (3%) of the homes within the service area described in the franchise. Failure to accomplish said significant construction of the proposed cable system within said service area within a period of one (1) year from the date of issuance of an original franchise or the extension of a service area or failure to equitably extend energized trunk cable to at least three percent (3%) of its franchise area each year thereafter may result in cancellation of said franchise by the Council as provided in this ordinance. However, said 3% shall only apply to areas where the density is 35 homes per cable mile. A franchise shall not be required to construct its cable system in areas of the city where another franchisee already has constructed and is operating a cable system. However, this paragraph shall in no way prohibit a franchisee from exercising its rights under this ordinance and constructing its system within the franchise limits. . . 17 (b) In the event a franchisee has not completed construction and is not offering cable service to at least seventy-five percent (75%) of the homes within the service area described in its franchise at the expiration of eight (8) years from the date of the issuance of said franchise, the Council shall have the right to withdraw a portion of said service area in the interest of the public convenience and necessity. Said action shall be taken only after a public hearing established by the Council for the purpose of allowing the franchisee to show cause why such action should not be taken. (c) It shall be the responsibility of the Public Works Director to inspect and verify performance. SECTION 6.0. RIGHTS TO USE STREETS NOT WARRANTED. It is understood that there may from time to time be within the City various streets which the City does not have the unqualified right to authorize franchisee 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 franchisee 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 the franchisee. SECTION 7.0. OTHER AGREEMENTS, PERMIT & EASEMENT REQUIREMENT. The City shall not be required to assume any responsibility for the securing of any rights-of-way, easements, or other rights which may be required by the licensee for the installation of the cable system, nor shall the City be responsible for securing any permits or agreements with other persons or utilities. . . 18 SECTION 8.0. NO PROPERTY RIGHTS CONVEYED. Nothing in this ordinance or in the franchise shall grant to the franchise holder any right of property in City owned property or public rights-of-way as described in Section 3.1 of this ordinance, nor shall the City be compelled to maintain any of its property or said public rights-of-way any longer than, or in any fashion other than in the City's judgment, its own business or needs may require. In addition, the franchise holder shall not be entitled to any compensation for damages from the City as a result of having to remove or relocate its property, lines and cables from said public property or public rights-of-way in the event the City determines that a necessity exists for such removal or relocation. SECTION 9.0 JURISDICTION OF OTHER REGULATORY BODIES OR AGENCIES. Nothing herein shall be construed to grant a franchisee any right or privilege lawfully within the jurisdiction of any other regulatory body or agency. SECTION 10.0 FRANCHISE OFFICIALS. Franchisee shall notify the City in writing of any change of the local manager of franchisee within thirty (30) calendar days of the change. SECTION 11.0 LIABILITY, INDEMNIFICATION 11.1 Liability in Case of Emergency If, at any time in case of fire, disaster, or other emergency, it shall appear necessary in the judgment of the City Manager to cut, move or otherwise interfere with any of the wires, cables, amplifiers, appliances or appurtenances thereto of the franchisee the City shall not be liable for any injury or damage to such property and equipment of the franchisee as a result of such cutting, moving or interference. The City will hold the franchisee harmless for any damage or injury to property or person other than the franchisee if such damage or injury is the result of City's cutting, moving or otherwise . . 19 interfering with franchisee's wires, cables, amplifiers appliances or appurtenances thereto. 11.2 Indemnification The franchisee shall hold the City harmless and shall pay any and all damages which the City may be required to pay as a result of the negligence of franchisee, its agents, employees or subcontractors. The City shall hold harmless the franchisee from and against all damages which the franchisee may be required to pay as a result of the negligence of the City, its agents, employees or subcontractors. SECTION 12.0 INSURANCE REQUIREMENTS 12.1 Insurance Within twenty (20) days after the effective date of this ordinance, the franchisee at its expense shall: (a) maintain in effect a comprehensive general liability policy in the amount of not less than one million dollars ($1,000,000) single limit per any accident or occurrence, $500,000 per person per claim and $500,000 property damage. The City shall be named as an additional insured; (b) maintain in effect automobile liability insurance policies covering all owned, non-owned and hired vehicles, in the amounts of not less than five hundred thousand dollars ($500,000) combined single limit for bodily injury and property damage, per occurrence; (c) maintain worker's compensation insurance in compliance with all State and Federal laws. This policy must include employer's liability coverage with a minimum limit of $100,000 per occurrence. The City and the franchisee by mutual agreement may increase at any time the amount of insurance coverage to be obtained pursuant to this Section. Nothing herein is intended as a limitation of the extent of any legal liability of the franchisee. . . 20 12.2 Insurance Policy Provisions (a) Resident Company and Agent: All insurance policies and bonds as are required of a franchisee in this ordinance shall be written by a company or companies authorized and qualified to do business in the State of Florida, and have a minimum rating of at least "B XX" in Best's Rating Guide. (b) Certificates and Renewals: Certificates and renewals of all coverage required shall be promptly filed by the franchisee with the City. The franchisee shall notify the City within thirty (30) days of any cancellation or modification of any insurance coverage required by this ordinance. Renewal certificates shall be filed with the City no less than thirty (30) days prior to the policy expiration date. (c) Notification of Claim: The City shall notify the franchisee within thirty (30) days after the presentation of any claim or demand, either by suit or otherwise, made against the City on account of any negligence on the part of the franchisee. (d) No franchise granted under this ordinance shall be effective unless or until each of the foregoing policies of insurance as required in this Section have been delivered to the City. (e) Neither the provisions of this Section, nor the acceptance of any bonds by the City pursuant to this ordinance, nor any damages received by the City thereunder, shall be construed to excuse performance by a franchisee or limit the liability of a franchisee for damages to the full amount of the bonds or otherwise. 21 . SECTION 13.0 BONDING REQUIREMENTS. 13.1 Initial Performance Bond (a) The franchisee shall, within thirty (30) days after the effective date of an original franchise granted under this ordinance, post with the City a performance bond in the amount of $100,000 or such other amounts as the Council may establish at the time of franchise award. Said bond will be returned at the end of eight (8) years to the franchisee or at such prior time as the system has been completed and approved by the City, provided: (1) That the franchisee has met or exceeded the construction schedule required by Section 5.0; and (2) That the franchisee has in good faith complied with the terms and conditions of the ordinance as well as the rules and regulations adopted pursuant to this ordinance. . (b) If the franchisee shall fail to perform the obligations heretofore set out in this section, the franchisee shall forfeit in total to the City the initial performance bond. (c) Said initial performance bond shall not be in lieu of any other guarantee or indemnification contained in this ordinance. 13.2 Permanent PaYment and Performance Bond (a) Each franchisee shall within sixty (60) days of the effective date a franchise is granted under this ordinance furnish to the City a bond in the amount of $5,000.00. (b) This bond shall remain in full force and effect throughout the term a franchise is granted under this ordinance to guarantee the compliance with performance requirements and paYment of all sums which may become due to the City under this ordinance. 22 . FCC DECISIONS/PREEMPTIONS. Federal Communications Petition and Licenses (a) The franchisee shall, except for existing licenses, within sixty (60) days after the issuance of a franchise under this ordinance, apply to the FCC for a Registration Statement or such other certificate or license as may be required. Failure of the franchisee to obtain the necessary permits and licenses within one (1) year of the issuance of a franchise under this ordinance shall cause the franchise to become null and void, unless the franchisee petitions the Council for an extension of time upon good cause shown. SECTION 14.0 14.1 . 14.2 Preemption by FCC Any section or provision of this ordinance or license or permit issued therefrom and any local regulations or conditions in conflict with rules and regulations promulgated by the FCC are hereby preempted and such FCC modifications shall be deemed incorporated herein. SECTION 15.0 COMPLIANCE WITH APPLICABLE LAWS AND ORDINANCES. The franchisee shall at all times during the life of this ordinance be subject to all lawful exercise of the police power of the City and to such reasonable regulation by the City as the City shall hereafter provide. The franchisee shall comply with all laws, statutes, codes, ordinances, rules, or regulations applicable to its business including those of the FCC. Specific and exact compliance to all zoning and building regulations shall be adhered to by the franchisee. SECTION 16.0 SIGNAL QUALITY REQUIREMENT. 16.1 General Standards (a) The System shall be maintained in such a manner as to prevent radiation from its facilities in excess of the limits specified in applicable rules and regulations of the FCC. . . 23 (b) The system shall pass standard color television and FM signals without degradation. (c) There shall be no visible cross- modulation products produced in the cable TV system on any channel. (d) The system and all equipment shall be designed and rated for twenty-four (24) hours per day continuous operation. 16.2 Technical Specifications (a) The Cable system shall be installed and maintained in accordance with the regulations and specifications of the Federal Communications Commission to the effect that the customers shall receive the highest possible level of service. (b) Underground construction in streets shall be of such quality as to assure continuity of service without the necessity of frequent street or pavement cutting and shall contain a self-sealing device to insure all such cables against leakage. (c) No portion of franchisee's system shall hamper the ability of nonsubscribers to receive TV broadcast signals off the air waves where, prior to the cable system's existence, such signals could be received by nonsubscribers' television equipment. (d) The levels of intensity or strength permitted on any drop shall be closely adjusted to prevent stray radiation of the CATV signals. (e) The franchisee shall take steps as necessary to prevent instances of extensive RF radiation. (f) All amplifier housings shall be effective shields against radiation by the amplifying equipment . . 24 SECTION 17.0 SERVICE REQUIREMENTS. 17.1 System Capability (a) The franchisee's cable distribution system shall be capable of carrying at least thirty-five (35) television channels and FM radio to each subscriber. (b) Each franchisee shall at all times operate a minimum of twenty-five (25) channels, unless otherwise preempted by the FCC, and provided that such programming is available. Each franchisee shall adhere to access requirements pursuant to federal law. (c) The franchisee shall extend cable television service to any subscriber within the City when such subscriber is located on property within one hundred fifty (150) feet of any portion of the distribution facilities of the franchisee's existing plant at the time of application for service. Such extension shall be made within sixty (60) calendar days after receipt of a legitimate written request for such service. There shall, however, be no obligation on the part of the franchisee to extend cable service beyond one hundred fifty (150) feet from existing distribution facilities unless there is a density of at least thirty-five (35) homes per trunk cable mile contiguous to existing plant. Provided, however, the franchisee shall serve any building in excess of one hundred fifty (150) feet if the owner of said building is willing to pay the actual cost of the service extension to such building. 17.2 Denial of Service. Franchisee may deny service to any person where such person has previously been a subscriber of franchisee and franchisee previously terminated subscriber's service due to non-paYment. 25 . 17.3 Lock-Out Devices The franchisee shall make available, to any residential subscriber so requesting, a "parental guidance" or "lock-out" device which shall permit the subscriber, at his or her option, to eliminate payor premium channel reception. The franchisee shall advise all residential subscribers regarding the availability of this device, and an additional reasonable charge for any such device may be imposed. 17.4 Emergency Use of Facilities In the case of any emergency or disaster, as determined by the City, franchisees shall, upon request of the City, make their systems available to the City without charge for use during such emergency or disaster period. SECTION 18.0 CONSTRUCTION, INSTALLATION AND OPERATION. 18.1 Prior Approval by City Except for individual service drops, the franchisee shall not erect any pole, run any line, make any attachment, nor shall any construction of any kind be commenced without the prior approval of the Public Works Director. Prior to the issuance of such approval, the franchisee shall submit to the Public Works Director: (a) Strand maps of the system authorized by the proposed franchise showing plant routing, utility company poles to which the system facilities are to be attached; and . (b) True copies of all pole attachment agreements made by the franchisee with Southern Bell Telephone Company and Florida Power and Light Company and any other utility or company to which an attachment is made. . . 26 18.2 City's Right to Inspect and Correct Defects The City shall have and maintain the right to inspect the installation, construction, operation and maintenance of the system by the franchisee to insure the proper performance of the terms of this ordinance. 18.3 Joint or Common Use of Poles (a) To enhance the public conveniences and to minimize the placement of poles and wires holding structures within public ways, the franchisee shall enter into agreements for the joint or common use of poles or other wire holding structures where poles or other wire holding structures already exist for the use in serving the City or serving the public convenience. However, no location of any pole or wire holding structure of the franchisee shall be a vested interest, and such pole or structure shall be removed or modified by the franchisee at its own expense whenever the Public Works Director determines it to be necessary. (b) The City shall be permitted to make use of the poles or other wire holding structures of the franchisee, without charge or remuneration to the franchisee, if the franchisee and City determine that the use would enhance the public convenience and would not unduly damage, hamper or interfere with the franchisee's present and future operations. 18.4 Permits, Easements and Agreements The City shall not be required to assume any responsibility for the securing of any rights-of-way or easements, nor shall the City be responsible for securing any permits or agreements with other persons or utilities. The franchisee shall make application for and obtain all necessary permits and authorizations which are required in the conduct of its business. However, franchisee shall not be required to pay for any such permits and authorizations . . 27 so long as franchisee is paying a franchise fee pursuant to this ordinance. 18.5 Location/Relocation of Facilities (a) Franchisee's system may be installed above ground in areas where existing power and telephone facilities are above ground, and shall be installed underground in areas where existing power and telephone facilities are installed underground. The franchisee shall endeavor to enter into agreements for the purpose of sharing poles with any person, firm or corporation now or hereafter authorized by license, franchise or otherwise to erect and maintain overhead or underground wires and cables, it being the intent hereof that all above-ground installations of CATV systems shall be accomplished on existing utility poles and easements where feasible, and installed only parallel to existing facilities. Where new poles are installed, prior approval of the Public Works Director as to location must be received. (b) Franchisee shall not place any fixtures or equipment where the same will interfere with any gas, electric, telephone, sewer, drainage or water lines, fixtures or equipment, or any cable lines or equipment of other franchisees, and the location by franchisees of their lines and equipment shall be in such a manner as not to interfere with the usual travel on or proper use of said streets, the use of the same for the installation or operation of gas, electric, cable television, telephone, water, drainage, or sewer line equipment, or the rights or reasonable convenience of owners of property which abut any street. (c) Franchisees shall relocate any above- ground portion of their systems underground in any City easement or right-of-way area where existing power and telephone facilities are hereafter so relocated, unless franchisee elects to purchase any poles owned by power or telephone or is permitted to remain on poles pursuant to . . 28 attachment agreements. Any such relocation shall be at franchisee's expense, and such relocation shall be accomplished concurrently with relocation of any such power and telephone facilities. (d) The franchisee shall have the authority to trim trees upon, or overhanging streets, alleys, sidewalks and public ways and places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee, in a manner approved by and acceptable to the City. (e) Franchisee shall promptly and at its own expense relocate or modify any part of its system which the City may request in connection with the abandonment of any street, or to accommodate the abandonment of any street, or to accommodate sewer, water, electric, or any public utility occupying any part of any street. (f) No location of any underground or above-ground facility or structure of any franchisee shall be a vested interest, and such poles or structures shall be removed or modified by a franchisee at its own expense whenever the City determines that the public convenience would be enhanced thereby. 18.6 Safety (a) Franchisee's work performance, equipment and job sites shall be in compliance with all applicable State and Federal requirements. A franchisee's work, while in progress, shall be properly protected at all times with suitable barricades, flags, lights, flares, or other devices as are required by the Manual on Uniform Traffic Control Devices (FOOT) to protect all members of the public having occasion to use the portion of the streets involved or adjacent property. 29 . (b) Franchisee shall at all times employ due care and shall install, maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public. All structures and all lines, equipment and connections in, over, under and upon the streets 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. Franchisee shall install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the National Electrical Safety Code promulgated by the National Bureau of Standards and the National Electrical Code of the American Insurance Association. 18.7 Operation and Maintenance of the System (a) Efficient repairs and services. Each franchisee shall render efficient service, make prompt repairs, and interrupt the service only for good cause and for the shortest time possible. (b) Notification of interruptions. Such interruptions insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system. . (c) Limitation of failures. The franchisee shall limit failures to a minimum by locating and correcting area service outages promptly, but in no event longer than twenty-four (24) hours after notice has been given by the subscriber or the City. (1) Exception shall be granted where the performance of this obligation is prevented by an act of God when repair is impossible due to circumstances over which the franchisee has no control. Service outages resulting from actions of a subscriber shall be corrected within seventy-two (72) hours of receipt of notice from a 30 subscriber or the City. Subscriber may be invoiced for such service calls. . (2) A complete report may be required by the City for any failure lasting longer than forty-eight (48) hours. (d) Maintaining an office. Each franchisee shall maintain an office with a toll-free telephone number for all exchanges serving the franchise area, and be so operated that complaints and requests for repairs may be received at any time by a person representing the franchisee. . (e) Each franchisee at all times shall be solely responsible for complying fully with all applicable regulations from time to time established by the FCC, and any other agency which now or hereafter has jurisdiction over the cable TV activities of franchisee. It is expressly agreed that franchisee may be entitled to renegotiate or amend the provisions hereof because amended or newly enacted regulations of franchisee's activities and business are more onerous or expensive for franchisee to implement. (f) Studio facilities. Each franchisee shall maintain studio facilities adequate to serve the needs of the community. Each franchisee shall comply with applicable federal law with respect to the provision of local origination programming and leased access channels. (g) Agents. Each franchisee shall maintain a force of agents and employees to provide prompt response to subscribers within the City at all times, and shall have sufficient employees to provide safe, adequate and prompt service for its facilities. (h) Termination of services. Upon termination of service to any subscriber, the franchisee shall promptly remove all portions of its system, facilities and equipment from the premises of such subscriber upon the subscriber's written request. . . 31 18.8 Inspection and Performance Test (a) The City shall have the right to make such inspections as it shall find necessary to insure compliance with the terms of this franchise and other pertinent provisions of law. The City shall have the right to require the franchisee to provide and keep accurate calibrated test equipment immediately available for use in the City for the testing of all service and operation standards in this ordinance and the franchisee shall conduct such tests as requested by the City in order to establish the level of performance of the system. 18.9 Transfer Prohibited A franchisee shall not assign, sell or transfer its plant or system or any portion thereof, nor any right, title or interest in same, nor shall a franchisee transfer or assign any right under this ordinance to any other person without prior approval of the City, which approval shall not be unreasonably withheld. Prior approval of the City shall be required where ownership or control of more than thirty percent (30%) of the right of control of franchisee is assigned to or 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 collectively. SECTION 19.0 LOCAL OFFICE; RESIDENT MANAGER. The franchisee shall, throughout the entire duration of its franchise, maintain an office open to the public during all reasonable business hours. The franchisee shall designate a resident manager of the system; and such person shall reside in close proximity to the service area of the franchisee and shall be active in the management of the system in the City throughout the duration of the franchise. The business office will also be located in close proximity to the service area. 32 20.2 SUBMISSION OF FINANCIAL REPORTS. The franchisee shall submit annual revenue reports of franchisee but no later than ninety (90) days from the date the reports are prepared and finalized. The annual financial reports so submitted shall be specific as to the extent of operations of the franchisee within the City of Ocoee. . SECTION 21.0 RATE SCHEDULE. 21.1 Rate Amounts Rates and charges for basic subscriber service and for installation of equipment shall be fair and reasonable. . 21.2 Filing of Rate Schedule The franchisee shall file with the City, information schedules which shall describe all services offered, all rates and charges of any kind, and all terms or conditions related thereto. 21.3 Subscriber PaYment of Rates. (a) The franchisee may refuse to furnish or discontinue furnishing service to a subscriber who fails to pay installation fees or monthly service charges when due, but only after notice to that subscriber. (b) The franchisee may require subscribers to pay for the installation and for each month of basic service in advance at the beginning of each month. (c) Nothing in this article shall be construed to prohibit waiver or reduction of charges for initial installation service, reconnect ion or other service charges that are made for promotional purposes. SECTION 22.0 PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED. The franchisee shall not, as to rates, charges, service facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person, nor subject any person to any prejudice or disadvantage. . . 33 SECTION 23.0 RULES OF FRANCHISEE. The franchisee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of his business as shall be reasonably necessary to enable the franchisee to exercise his rights to perform his obligations under this article and to assure an uninterrupted service to each and all of his customers; provided, however, that such rules, regulations, terms and conditions shall not be conflict with the provisions of this article and shall be filed with the City. SECTION 24.0 TERMINATION. 24.1 Right of Termination The City reserves the right to terminate and cancel a franchise and all rights and privileges of a franchisee thereunder after due process as specified by Section 3.13 in the event that anyone of the following occurs, or for any reason deemed sufficient by the City but shall not be limited to the following: (a) The franchisee, after thirty (30) days' notice by certified mail by the City, violates any material provision of this ordinance or any rule, order or determination of the City made pursuant to this ordinance, except that if such violation by franchisee is without fault or through excusable negligence. (b) The franchisee becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt. (c) The franchisee attempts to evade any of the provisions of this franchise or practices any fraud or deceit upon the City. (d) The franchisee fails to commence construction within one (1) year from the effective date of this ordinance or receipt of FCC approval, whichever is later. . . 34 (e) The franchisee fails to complete construction pursuant to the requirements of this ordinance within the time required by its franchise. (f) The franchisee fails to provide efficient service to its subscribes as required by the terms of this ordinance. 24.2 Right of Suspension The City reserves the right to suspend any or all of the rights of a franchise under this ordinance upon a finding that the franchisee is failing to provide efficient service to its subscribers within the City of Ocoee or for any of the grounds specified in Section 24.1. This shall include the right of the City to prohibit further expansion of service areas until service in the areas being served is brought up to minimum acceptable standards. 24.3 Procedures for Termination The license granted hereunder may be terminated in accordance with the following procedures: (a) The City Manager shall notify the franchisee in writing of the alleged violation constituting a ground for termination and give the franchise thirty (30) days, or such other greater amount of time as the City Manager may specify, to correct such violation or to present facts and argument in refutation of the alleged violation. (b) If the City Manager then concludes that there is a basis for termination, he shall notify the franchisee thereof. (c) If within the designated time the franchisee does not remedy and/or put an end to the alleged violation, the Council, after a public hearing, may direct the termination of the license if it determines that such action is warranted. . . 35 SECTION 25.0 REMOVAL, ABANDONMENT AND RESTORATION OF SYSTEM. 25.1 Removal Required A franchisee shall promptly remove from the streets or public places all portions of the system and poles of such system, other than any which the City may permit to be abandoned in place in the event any of the following occurs: (a) In the event that the use of a part of its system is discontinued for any reason for a continuous period of twelve (12) months. (b) In the event such system or property has been installed in any street or public place without complying with the requirements of the franchisee's franchise or this ordinance. (c) In the event that the franchise has been terminated, canceled or has expired without renewal, assignment or transfer. 25.2 Removal Procedures The franchisee shall promptly, upon being given thirty (30) days' written notice, begin to remove from the streets all property and poles of the cable system other than those which the City, in its discretion may permit to be abandoned. The City shall set a time limit giving the franchisee a reasonable period, not to exceed one (1) year, in which to complete the removal of its system. 25.3 Abandonment (a) Any property of the franchisee remaining in place after the reasonable time limit set by the City, after the termination or expiration of the franchise, shall be considered permanently abandoned. (b) The failure to reclaim property, before it is considered to be abandoned as outlined in this section, shall constitute a franchise violation and shall cause forfeiture of the permanent performance bond and, if it is still in effect, forfeiture of the initial performance 36 . bond unless the City agrees to accept transfer of ownership of the abandoned property. In that event, the franchisee shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property. 25.4 Restoration Required In the event of such removal, the franchisee shall promptly restore the street or other areas from which such property was removed to a condition satisfactory to the Public Works Director. SECTION 26.0 PUBLIC, EDUCATIONAL AND INSTITUTIONAL SERVICES. 26.1 Public Service The franchisee shall provide one (1) basic service drop for CATV service without installation or charge to City Hall. SECTION 27.0 CONSUMER PROTECTION PROVISIONS. 27.1 Service (a) The franchisee shall not, without good cause, fail to provide available service to individuals or prospective subscribers nor shall the franchisee terminate service without good cause. Service shall be provided to all interested customers where economically feasible. . (b) Unless a written contract exists between the franchisee and a subscriber, service shall be on a month-to-month basis and the franchisee shall not assess a penalty for cancellation of the service. 27.2 Customer Complaints (a) All subscriber complaints regarding quality of service, equipment malfunctions and similar matters shall be acted upon by the franchisee as soon as possible, but in no event more than two (2) business days from the date of receipt except in the event of war, severe weather conditions or Acts of God. . . 37 (b) Except where there exists an emergency situation necessitating a more expedited procedure, the franchisee may interrupt service, for the purpose of repair or upgrading of the system, only during periods of minimum use. (c) The franchisee shall establish procedures for receiving, acting upon and resolving subscriber complaints in accordance with FCC regulations. The franchisee shall furnish a notice of such procedures to each subscriber at the time of initial subscription to the system and at least once a year thereafter, which notice shall include telephone numbers of the franchisee. (d) The franchisee shall keep a record of and investigate all written complaints from subscribers. Such records shall identify the subscriber, his address, the nature, location and date of the complaint, and a technician's report on the disposition of the complaint. The City may, during normal business hours, request the subscriber complaint records of the franchisee. (e) The City Manager is hereby designated by the City as having primary responsibility for the continuing administration of the franchise and implementation of complaint procedures. (f) The franchisee shall within seven (7) days after receiving written request, send a written report to the City with respect to any complaint. The report to the City shall provide a full explanation of the investigation, findings and corrective steps taken by the franchisee. 27.3 Customer's Right Upon Failure of Service. In the event that total service to any customer is interrupted for forty-eight (48) or more consecutive hours, except for reasons beyond the control of the franchisee and except in circumstances for which prior notice of the interruption is obtained from the City, the . . 38 franchisee shall provide a pro rata rebate of the monthly fees to affected customers upon the customer's request. 27.4 Privacy/Use of Data The franchisee shall comply with all federal and state laws regarding the collection and storing of individual subscriber information. SECTION 28.0 GENERAL PENALTIES. Any person, firm or corporation violating any of the provisions of this ordinance, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars ($500.00) for each offense, or by imprisonment for a term not to exceed sixty (60) days, or by both such fine or imprisonment within the discretion of the courts. (a) It shall be unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised cable system within the City of Ocoee for the purpose of enabling himself or others to receive any television signal, radio signal, pictures, programs or sound. (b) It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or vandalize any cables, wire or equipment used for the distribution of television signals, radio signals, pictures, programs or sound. (c) It shall be unlawful for any person, firm or corporation to receive any television signal, radio signal pictures, programs, sound or other information transmitted over any cable system if such person, firm or corporation has not paid or made arrangements to pay for such services. SECTION 29.0 OBSCENITY. The franchisee shall comply with applicable state, local and federal laws and regulations as well as applicable decisions of the United States Supreme Court regarding obscenity. It is the intention of the City to prevent the showing of any material . . 39 on any channel which is deemed to be obscene to the extent that the City may regulate or prohibit the same. SECTION 30.0 SUBSEQUENT ACTION BY STATE OR FEDERAL AUTHORITIES. Should the State of Florida, the FCC or any other agency of the federal government subsequently require the franchisee to perform any act which is inconsistent with any of the provisions of this ordinance or cease to perform any act required by this ordinance, the franchisee shall so notify the City. Upon receipt of such notification, the City shall determine if a material provision of the ordinance is affected. Upon such determination, the City and franchisee shall have the right to modify, amend, delete or otherwise change any of the provisions herein to such reasonable extent as may be necessary to carry out the full intent and purpose of this ordinance. In the event that the City does not make such modification, the franchisee agrees to continue to conform to the provisions of this ordinance until such time as it is prohibited from doing so by operation of law. The City and franchisee may amend the license granted hereunder in the event the City or franchisee determines that substantial and material compliance with the original terms of the ordinance has been frustrated by any such State, County or Federal requirement. SECTION 31.0 PERSONAL LIABILITY OF CITY OFFICIALS. Any officer or employee charged with the enforcement or administration of this ordinance, acting for the applicable governing body in the discharge of his duties, shall not thereby render himself liable personally, and he is hereby relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required or permitted in the discharge of his duties. Any suit brought against this officer or employee because of such act performed by him in the enforcement of any provision of this ordinance shall be defended by the City or . . 40 its representatives until the final termination of the proceedings. SECTION 33.0 SUPERCEDING OF AGREEMENTS. This ordinance will govern all activities of cable television franchisees in the City of Ocoee to the extent that such activities may be regulated. Franchise agreement provisions will govern any activities of the parties not specifically regulated by this ordinance. SECTION 34.0 AMENDMENTS. This ordinance may be amended at any time by a majority vote of the properly constituted Council, provided that the Council shall hold a public hearing for such purpose and afford all interested persons an opportunity to be heard with respect to such amendment. The City Manager shall submit notice of the public hearing and proposed amendments to each franchise in writing at least seven (7) days prior to said public hearing. This reservation of authority includes the right to reimpose rate regulations at such future date as it may be deemed necessary by the Council if rates are not regulated as to that particular franchisee but only to the extent that federal law allow rates to be regulated. Any modifications of the provisions of Section 76.31 of the Rules and Regulations of the FCC shall be incorporated into the City of Ocoee cable television franchise ordinance within one (1) year of adoption, or at the time of franchise renewal, whichever occurs first. SECTION 35.0 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies set forth in this ordinance are cumulative and shall be in addition to and not in derogation of any other rights or remedies which the parties may have with respect to the subject matter of this ordinance and a waiver thereof at any time shall not affect any other time. . . l 41 SECTION 36.0 CITY'S RIGHT OF INTERVENTION. The City hereby reserves to itself, and the franchisee acknowledges the City's right to intervene in any suit, action or proceeding involving the license granted hereunder of any provision in this ordinance. SECTION 37.0 SEVERABILITY. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, it is the intent of the Council that the invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are declared severable. SECTION 38.0 CONFLICTING LAWS. All local laws and ordinances applying to the City of Ocoee and in particular Ocoee Ordinances , are hereby repealed. SECTION 39.0 CODIFICATION. It is the intention of the Council that the provisions of this ordinance shall become and be made apart of the City of Ocoee Code and the word "ordinance" may be changed to "section," "article," or other appropriate word or phrase and the section of this ordinance may be renumbered or relettered to accomplish such intention; providing, however, that Sections 34.0, 35.0, 36.0, and 37.0 shall not be codified. SECTION 40.0 EFFECTIVE DATE. This ordinance shall take effect upon receipt of official acknowledgement by the Clerk of the Ocoee City Council from the Department of State that this ordinance has been filed with the Department of State.