HomeMy WebLinkAboutResolution 2000-02
City of Ocoee
Florida
Resolution No. 2000- 02
A RESOLUTION OF THE CITY OF OCOEE, FLORIDA
APPROVING A FRANCHISE AND CONSTITUTING A
FRANCHISE AGREEMENT WITH TIME WARNER
ENTERTAINMENT- ADV ANCEINEWHOUSE PARTNERSHIP,/ i7\S
D/B/A! TIME WARNER COMMUNICATIONS, 'lwC., ("TI~
WARNER") PURSUANT TO THE CITY OF OCOEE, FLORIDA
CABLE TELEVISION CODE, ADOPTED BY ORDINANCE NO.
99-37, TO OWN, OPERATE AND MAINTAIN A CABLE
TELEVISION SYSTEM IN THE CITY OF OCOEE, FLORIDA,
AND SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF SUCH FRANCHISE AND PROVIDING FOR
REGULATION AND USE OF SUCH SYSTEM; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY; AND
PROVIDING A SAVINGS CLAUSE AND EFFECTIVE DATE
THEREFORE.
Table of Contents
SECTION 1: Approval of Franchise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 2: Constitution of Franchise Agreement. . . . . . . . . . . . . . . . . . . . . . .7
Section 1. Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2. Grant of Franchise. ......................................... 11
Section 3. Term of Franchise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4. Non-Exclusive Franchise. .................................... 12
Section 5.
Franchise Subiect to Communications Act. State Law and Ordinance. 12
Section 6.
Franchisee Subiect To Other Laws, Police Power. ................. 13
Section 7.
Reservation of Rights. ....................................... 13
Section 8.
Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Section 9. Indemnification of the City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 10. Security Fund. ............................................. 15
Section 11. Construction Bond. ......................................... 15
Section 12. Use of Streets. .............................................15
Section 13. Minimum Facilities and Services. .............................. 16
Section 14. Technological Improvements to System. . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 15. Technical Standards. .......................................20
Section 16. Proof of Performance Tests. ..................................21
Section 17. Access Channels and Facilities. ............................... 21
Section 18. Commercial Leased Access. .................................. 24
Section 19. Emergency Use of Facilities. .................................24
Section 20. Lock-out Devices. .......................................... 24
Section 21. Closed-circuit Captioning for the Hearing Impaired. .... . . . . . . . . . . 24
Section 22. Line Extension Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 23. Cable Home Wiring Commitments. ............................ 25
Section 24. Franchise Fee. .............................................25
Section 25. Reports and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Section 26. Right to Inspect Financial Records and Facilities. . . . . . . . . . . . . . . . . . .28
Section 27. Customer Service Requirements. ..............................29
Section 28. City Purchase of Cable System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 29. Modification of Franchise. ................................... 29
Section 30. Transfer of Franchise. ....................................... 30
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Section 31. Procedures for Requesting Approval of Transfer. ................. 30
Section 32. Renewal of Franchise. ......................................33
Section 33. Rates. ...................................................33
Section 34. Enforcement Remedies. .....................................34
Section 35. Area-wide Interconnection. ................................... 34
Section 36. Written Notice of Acceptance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 37.
Section 38.
SECTION 3.
SECTION 4.
SECTION 5.
SECTION 6.
SECTION 7.
No Opposition.
Execution in Counterpart. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Repeal of Conflicting Resolution. .......................40
Savings. ............................................ 40
Severability. ........................................ 40
Applicable Law. ..................................... 40
Effective Date. ....................................... 40
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BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE,
FLORIDA AS FOLLOWS:
SECTION 1:
Authority. The City Commission of the City ofOcoee has the authority to
adopt this Resolution pursuant to Article VIII of the Constitution ofthe State of Florida and Chapter
166, Florida Statutes, City ofOcoee Ordinance No. 99-37 and Section C-8.H of the Charter of the
City of Ocoee.
SECTION 2:
Approval of Franchise. The City ofOcoee hereby approves a franchise with
Time Warner to own, operate, and maintain a cable television system in the City of Ocoee, Florida.
SECTION 3:
Constitution of Franchise A~reement. The following shall constitute the
Franchise Agreement between the City ofOcoee, Florida and Time Warner:
THIS AGREEMENT, effective this 2tb day of ---1JIarr.h
,2000, is by and between
the CITY OF OCOEE, a Florida municipal corporation (the "City") and TIME WARNER
ENTERTAINMENT- ADVANCEINEWHOUSE PARTNERSHIP, D/B/A! TIME WARNER
COMMUNICATIONS,1N{;;.." ("Time Warner").
WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 U.S.C. 99521
et seq., the City may grant or renew a franchise to construct, operate and maintain a cable television
system; and
WHEREAS, on December 7, 1999, the City Commission ofOcoee, Florida ("Commission"),
adopted Ordinance No. 99-37 of the City of Ocoee, Florida, and provided for the issuance and
regulation of cable television franchises for, and the installation, construction and operation of, cable
television systems within the City; and
WHEREAS, Time Warner desires to renew its franchise to construct, install, maintain, and
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operate a cable system in the City, and has applied to the City for a renewal of such franchise.
WHEREAS, the construction, installation, maintenance, and operation of such a system
involves the use and occupation of the Streets of the City, over which the City exercises
governmental control; and
WHEREAS, Time Warner has substantially complied with the material terms of its franchise;
and
WHEREAS, the Commission has evaluated (or caused to be evaluated by its consultants)
Time Warner's application in light of the requirements of federal and state law and the Ordinance,
and has conducted a public hearing concerning Time Warner's renewal request and renewal
application; and
WHEREAS, the Commission has relied on Time Warner's representations and has
considered all information presented to it by representatives of Time Warner, the City staff, and the
public; and
WHEREAS, based on said representations and information, the Commission has determined
that a renewal of Time Warner's nonexclusive franchise to construct, install, maintain and operate
a cable system in the City, subject to the terms and conditions set forth herein and in the Ordinance,
is consistent with the public interest; and
WHEREAS, on March 7,2000, the Commission determined to renew Time Warner's non-
exclusive franchise to own, construct and operate a cable television system within the City, subject
to the terms and conditions ofthe Ordinance and subject also to the City and Time Warner entering
into this Franchise Agreement; and
WHEREAS, the City and Time Warner have reached agreement on the terms and conditions
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of this Franchise Agreement which shall supersede Time Warner's prior franchise;
NOW, THEREFORE, in consideration ofthe City's renewal of Time Warner's franchise to
own, construct, install, maintain and operate a cable system within the City, and to use and occupy
the Streets of the City for that purpose, and in consideration of Time Warner's promise to provide
cable service to residents of the City pursuant to the Ordinance and under the terms and conditions
set forth herein, and in consideration of the promises and undertakings herein, and other good and
valuable consideration, the receipt and the adequacy of which is hereby acknowledged, the franchise
is hereby granted; and
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
Section 1.
Definitions. Except as otherwise provided herein, the definitions in Section 57-02
of Ordinance No. 99-37 of the City ofOcoee, Florida, shall govern this Franchise Agreement. In
addition, the following definitions shall apply:
A. Ordinance shall mean Ordinance No.99-37 ofthe City ofOcoee, Florida, as enacted
on December 7, 1999, and any references in this Franchise to said Ordinance or to any section
thereof shall mean the Ordinance as enacted on that date.
B. Franchisee or Time Warner shall mean Time Warner Entertainment-
AdvancelNewhouse Partnership, d/b/a Time Warner communications,~ and its lawful a~
permitted successors, assigns and transferees pursuant to Sections 31 and 57-24 of this Agreement
and Ordinance No. 99-37 ofthe City ofOcoee, Florida, respectively.
C. Notice to the cable operator shall be deemed effective upon receipt. Notice to the
City shall be effective upon receipt by the City Manager.
D. Gross Revenues on which franchise fee payments to the City are calculated shall be
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defined as provided for in Section 57-2(R) of Ordinance No. 99-37.
Section 2.
Grant of Franchise.
Subject to the terms of this Franchise Agreement and Ordinance No. 99-37, the City
A.
hereby grants Franchisee a franchise for the right and privilege to own, construct, install, maintain
and operate a Cable System within the Franchise Area.
B. The Franchise granted herein is solely for the operation of a cable system to provide
cable services in the City of Ocoee.
C. Any agreement by Franchisee to provide cable service on its cable system in the City
is subject to the terms of this Franchise.
Section 3.
Term of Franchise. This franchise shall be for a period of ten (10) years, unless
otherwise sooner terminated or otherwise extended in accordance with the terms of this Franchise
Agreement. The Franchise shall commence upon March 7, 2000 and terminate on March 6,2010.
This Franchise Agreement is subject to all other requirements and conditions set forth herein and in
Ordinance No. 99-37 of the City for a grant of a franchise to become effective.
Section 4.
N on-Exclusive Franchise. The Franchisee's right to use and occupy the Streets shall
be non-exclusive, and does not expressly or implicitly preclude the issuance of other franchises to
operate cable systems within the City, or affect the City's right to authorize use of City Streets to
other persons to operate cable systems or for other purposes as it determines appropriate, during the
term of this Franchise Agreement. Any such franchises shall be granted in a nondiscriminatory and
competitively neutral manner, consistent with applicable law.
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Section 5.
Franchise Subject to Communications Act. State Law and Ordinance.
This Franchise Agreement is subject to and shall be governed by all terms, conditions
A.
and provisions of the Communications Act, any amendments thereto, and any other applicable
provision of Federal or State Law, existing or hereafter adopted.
B. This Franchise Agreement is subject to and shall be governed by all terms, conditions
and provisions of Ordinance No. 99-37 of the City, in effect at the time of the effective date of this
Agreement, or any extension or renewal hereof, in addition to the terms, conditions and provisions
set forth in this Franchise Agreement, and the provisions of the Ordinance shall prevail over
conflicting or inconsistent provisions ofthis Franchise Agreement, unless an explicit intent to amend
or modify the Ordinance is herein expressed.
Section 6.
Franchisee Subject To Other Laws. Police Power.
The Franchisee is subject to, and agrees to comply with all applicable Federal, State
A.
and local laws.
B. The Franchisee shall at all times be subject to all lawful exercise of the police power
of the City, to the extent not inconsistent with the express terms ofthis Franchise Agreement.
Section 7.
Reservation of Ri~hts.
This Franchise Agreement shall be modified, at the request ofthe City or Franchisee,
A.
after public notice and hearing, to comply with the laws of the State of Florida and Federal Law,
including, but not limited to, the rules and regulations promulgated by the Federal Communications
Commission. Any such modification shall be in a writing executed by both the City and Franchisee.
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B. The City reserves all rights to exercise its powers as granted by the Constitution of
the State of Florida or by other applicable State or Federal law. Franchisee shall at all times be
subject to all lawful exercise of the police power of the City, to the extent not inconsistent with the
express terms of this Franchise.
C. Subject to applicable law, except as may be specifically provided in the Ordinance
or under the terms of this Franchise Agreement, and subject to the Communications Act, the failure
of the City, upon one or more occasions, to exercise a right or to require compliance or performance
under this Franchise Agreement or Ordinance, shall not be deemed to constitute a waiver of such
right or a waiver of compliance or performance.
D. The City reserves the right to acquire, purchase, own and/or operate a Cable System
to the extent permitted by local, State and Federal Law.
Section 8.
Insurance.
Franchisee shall obtain and maintain insurance of the types and minimum amounts
A.
required in Section 57-10 of Ordinance No. 99-37, in such a manner as to comply with each and
every requirement of that Section.
B. The Franchisee shall provide proof to the City of compliance with this Section no
later than sixty (60) days from the date of the Commission resolution approving the grant of the
Franchise. Failure to provide the City with proof of insurance within the prescribed time period will
be a violation of this Franchise Agreement and subject Franchisee to penalties consistent with this
Franchise and the Ordinance.
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Section 9.
Indemnification of the City. Franchisee shall, at its sole cost and expense,
indemnify, hold harmless, and defend the City, its elected or appointed officials, employees,
committees and boards, against any and all claims, suits, costs, losses, damages, expenditures causes
of action, proceedings, judgments for equitable relief, and costs and expenses in accordance with
Section 57-10 of Ordinance 99-37 of the City.
Section 10. Security Fund. Pursuant to Section 57-11 of Ordinance 99-37, the Franchisee shall
establish and maintain a security fund with the City in an amount of Fifty Thousand Dollars
($50,000.00), in the form a cash deposit, performance bond, or letter of credit.
Section 11. Construction Bond. Pursuant to Section 57-12 of Ordinance No. 99-37, prior to
any Cable System construction, upgrade, rebuild or other work in the streets, Franchisee shall furnish
a construction bond in favor ofthe City in an amount of not less than Twenty Five Thousand Dollars
($25,000.00). Failure to provide such construction bond to the City no less than ten (10) days prior
to the start of any work to be performed in the streets shall constitute a material violation of this
Agreement and the Ordinance subject to remedies in accordance with Section 57-32 of the
Ordinance. The construction bond must be approved by the City, which approval shall not be
unreasonably withheld. The construction bond shall be maintained until said construction work
hereofis completed and for a period not to exceed six (6) months thereafter. Franchisee shall notify
the City in writing when it believes the construction has been completed.
Section 12. Use of Streets.
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A. Franchisee agrees at all times to comply with and abide by all applicable provisions
of the City Code.
B. All of Franchisee's Cable System distribution facilities shall be installed and
maintained in accordance with Section 57-21 of Ordinance No. 99-37.
C. If the City is required to perform emergency Street work requiring relocation of
Franchisee's facilities in the Streets, then Franchisee shall reimburse the City for its reasonable costs
associated with such relocation, to the extent other users of the rights-of-way are so responsible,
consistent with applicable law. If circumstances permit, City shall make reasonable efforts to notify
Franchisee in advance, so that it may perform the work.
Section 13. Minimum Facilities and Services.
A. The Franchisee shall provide minimum facilities and services in accordance with
Section 57-13 of the Ordinance. Franchisee shall at all times during the term ofthis Franchise shall
perform all necessary repairs, modifications, or other measures to its cable system necessary for the
cable system to be capable of passing frequencies of at least 750 MHZ and being fully operational
with a minimum channel capacity of at least seventy eight (78) video channels.
B. In the event Franchisee fails to maintain the system in the City as required in A above,
then the Franchisee agrees that the City may impose fines in the amount of Seven Hundred and Fifty
Dollars ($750) per day as of the date Franchisee was required to comply with the provisions of
Section 13.A above, as set forth in Section 57-13 of the Ordinance, provided, however, that City
shall not impose a fine if the delay is a result of force majeure or other circumstances beyond
Franchisee's control. It is agreed that the aforestated fine represents a reasonable estimate of the
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damages suffered by the City and/or its subscribers, whether actual or potential.
C. In the event the Franchisee is required to provide a future system rebuild or upgrade
of the Cable System, the date of completion of such rebuild or upgrade will be in accordance with
Section 57-13 ofthe Ordinance.
D. Franchisee further agrees to provide Cable Service, without charge, to all City
buildings in accordance with Section 57-13 of the Ordinance. Such service shall include the Basic
Cable Service tier, including any additional programming added to that level of service.
E. School Commitments.
1. Franchisee shall, upon request, provide at least one cable television service outlet and
when technically feasible and available in the area, at least one standard installation connection to
a cable on-line service to each public elementary and secondary school within its franchise area that
is passed by its cable system, and shall provide Basic Cable Service and cable on-line service to
those installations at no cost to the City or school involved, and shall charge no more than its time
and material costs for any additional cable service outlets (including cable on-line service) to such
facilities. pursuant to Section 57-13 of the Ordinance. Notwithstanding anything herein to the
contrary, the Franchisee shall provide installations and service as required herein, to all public
schools serving the City of Ocoee, within the physical boundaries of the City.
2. Any school connected pursuant to subparagraph 1 above may elect to install its own
internal wiring (provided such wiring meets required technical specifications) and to bear the cost
thereof. Basic Service shall be provided to each outlet in all connected schools, at no cost to the City
or school involved.
3. Franchisee may provide a free education program listing to each connected school.
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Such educational program listing will identify and describe programming on Franchisee's system
that is appropriate for use in the classroom and will provide suggested curriculum support ideas.
4. Franchisee may provide to each connected school materials for teachers that explain
the educational applications of Franchisee's broadband cable systems and services. Ifprovided, the
materials will be provided to all connected schools.
5. Nothing herein shall preclude Franchisee from providing benefits to schools which
exceed those provided herein.
F. All video signals received for transmission that contain closed circuit captioning
information for the hearing impaired shall in turn contain such information in the form received
when transmitted by the cable operator to the subscribers of the system.
G. Franchisee shall comply with technical standards as set forth in Section 57-14A of
the Ordinance.
H. Franchisee shall comply fully with all applicable laws concerning handicapped or
disabled persons, and shall indemnify and hold the City harmless from any suit, claim, or demand
against it for violation of such laws that arises from Franchisee's provision, or failure to provide,
services in conformity with such laws.
I. Any and all rights which the City may have, now or in the future, to regulate the
Franchisee's provision of the cable Internet services are hereby reserved by the City and may be
exercised at any time throughout the term of this Franchise Agreement, unless otherwise prohibited
by applicable law. If Franchisee provides access to its System to Internet Service Providers on an
open, non-discriminatory basis on a Cable System owned or operated by the Franchisee, its parents,
Affiliates or subsidiaries serving the City of Orlando, Franchisee shall provide access on such basis
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on any service which the Franchisee provides in the City.
Section 14. Technoloeical Improvements to System.
A. Throughout the term of this franchise, the Franchisee shall construct, operate,
maintain and upgrade the Cable System in order to ensure that it continuously conforms to the State-
of-the-Art as defined in the Ordinance.
B. Pursuant to Section 57-17 of Ordinance 99-37 of the City, the Franchisee shall, upon
request, report annually in writing to the City Manager, a summary of the previous year's activities
in development ofthe State of the Art of cable systems and the system serving the City including but
not limited to, services and products initiated or discontinued, new technologies, number of
subscribers, homes passed, and miles of cable distribution plant in service. The summary shall also
include a comparison of any construction, including system upgrades, during the year with any
projections previously provided to the City, as well as rate and charge increases and/or decreases for
the previous fiscal year. It is the obligation of the Franchisee to include within this report any and
all information necessary to evaluate Franchisee's system as compared to the definition of "State of
the Art" as defined in Section 57-2 of the Ordinance.
C. The Franchisee shall make such technically and commercially feasible improvements
to its System as may be necessary to bring the System to the State of the Art, pursuant to Section
57-13 of the Ordinance.
D. Any upgrade or rebuild of a Franchisee's Cable System ordered by the City
Commission pursuant to this Section and the Ordinance may include such incentives as the
Commission may deem appropriate to ensure timely compliance by the Company to the extent
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provided in the Ordinance.
Section 15. Technical Standards. Franchisee shall maintain and operate its Cable System, at
a minimum, in full compliance with Section 57-14 of Ordinance No. 99-37.
Section 16. Proof of Performance Tests. Franchisee shall perform, at its expense, the proof of
performance tests as required by Section 57-14 of Ordinance No. 99-37.
Section 17. Access Channels and Facilities.
A. Access Channel Capacity. Pursuant to Section 57-15 of the Ordinance, Franchisee
shall provide the City for its exclusive use with one (1) activated access channel for educational
and/or governmental access use, as determined by the City, and shall make available on the System
an Orange County government access channel subject to the following terms and conditions:
1. Franchisee shall make available the City of Ocoee access channel on those
portions of its cable systems in the City of Winter Garden, the City of Oakland and the western part
of unincorporated Orange County in which the channel was previously available provided that the
appropriate franchising authority requires carriage of the channel as the franchising authority's
government access channel.
2. Some customers may not receive the City ofOcoee access channel due to the
fact that the design of the cable system as recently upgraded does not precisely correspond to
governmental boundaries; but in all events, the Franchisee shall, within a reasonable period oftime,
provide the City of Ocoee access channel to City residents/subscribers on any node on which the
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majority of subscribers are residents of the City of Ocoee.
3. Franchisee shall continue to maintain adequate capacity on its System to
permit the upstream transmission of programming from the City Hall Building for the purpose of
carriage of the programming on the City government access channel.
4. Franchisee shall continue to maintain adequate capacity on its System to
permit the upstream transmission of programming from West Orange High School for the purpose
of carriage of the programming on the City government access channel, provided that, since the
location is outside the boundaries of the City, the Franchisee has the right to install its facilities
necessary to meet this obligation.
5. Franchisee shall make available and maintain all necessary headend and
system electronic and distribution equipment so that any programming transmitted upstream on the
upstream channel from the City Hall Building and/or West Orange High School may be transmitted
downstream to Subscribers on the City of Occoee access channel provided pursuant to this Section
and Section 57-15 of the Ordinance.
6. Franchisee agrees that all access channels will be provided to Subscribers on
the System as a part of Basic Service. If such information is supplied to Franchisee or known by
Franchisee, Franchisee will publicize programming on the access channels as a part of any ordinary
printed program listings which Franchisee prepares or will include access channel programming
listings in any monthly program guide which Franchisee prepares, provided that information
concerning access channel programming is provided to or becomes known to Franchisee within the
time that other programmers are required to provide such information for inclusion in such program
listings or program guide.
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B. Access Facilities, Equipment and Support. Franchisee shall provide to the City a
grant in the amount of Thirty Thousand Dollars ($30,000.00), for equipment for the production of
programming for the City's Access Channel.
Section 18. Commercial Leased Access. Franchisee shall provide commercial leased access
channels as required by Federal Law.
Section 19. Emereency Use of Facilities.
A. Franchisee shall comply with all FCC rules on emergency use of facilities and
consistent therewith emergency communications shall be coordinated through the Orange County
Emergency Services Office.
B. Franchisee shall provide adequate standby power generating capacity at the Cable
System headend and on its system to the extent consistent with its normal operating standards.
Section 20. Lock-out Devices. Franchisee shall make available at reasonable charge to any
residential Subscriber, upon the request of such Subscriber, a "parental guidance" or "lock-out"
device which shall permit the Subscriber, at his or her option, to eliminate the audio and visual
transmissions from any Channel reception to the extent technically feasible. Such device may be a
function of a converter.
Section 21. Closed-circuit Captionine for the Hearing Impaired. Franchisee shall make
available at a reasonable charge to any hearing-impaired residential Subscriber, upon the request of
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such Subscriber, equipment capable of decoding closed-circuit captioning information for the
hearing impaired.
Section 22. Line Extension Policy. Upon request and payment of all applicable charges, and
provided that the requesting person gives Franchisee access to his or her premises in order to furnish,
maintain and continue to offer service to that person, Franchisee shall, throughout the term of this
Agreement, promptly furnish, maintain, and continue to provide all services distributed over the
System to any person at his or her place of residence within the City, in accordance with Section 57-
13.B of the Ordinance.
Section 23. Cable Home Wiring Commitments. Franchisee will comply with all FCC rules
regarding cable home wiring, as amended from time to time.
Section 24. Franchise Fee.
A. In consideration of the privilege granted herein to use and occupy the Streets to own,
construct, install, maintain and operate its Cable System, Franchisee, as compensation for the
privilege granted under a franchise for the use of the City's streets to construct and operate a cable
system, shall pay to the City a franchise fee in an amount up to a maximum of either (1) five percent
(5%) of the Franchisee's gross revenues derived directly or indirectly from the operation of its cable
system within the City to provide cable services during the term of its franchise; or (2) in the event
the Communications Act or other applicable law is amended to permit the City to assess a franchise
fee of a greater specific amount or on a broader revenue basis than that specified in (1) above, the
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Franchisee agrees to pay to the City the new amount after a public hearing in which the public and
Franchisee are given an opportunity to comment on the impact of the higher fee. In no event shall
a Franchisee pay a Franchise fee greater than the maximum permitted by applicable law. Franchisee
will pay to the City such higher amount effective with the next available billing cycle in which the
higher charge may be placed on Subscribers bills.
B. Franchisee may calculate Gross Revenues for purposes of determining the franchise
fee owed on either a cash or accrual basis, provided, however, that Franchisee shall notify the City
at least ninety (90) days in advance of any change in the method used, and provided, further, that any
such change shall not result in Franchisee's failure to recognize or include any Gross Revenue in its
calculation of franchise fee owed to City. If Franchisee calculates Gross Revenues on an accrual
basis, Franchisee may subtract its actual bad debt expense determined in accordance with Generally
Accepted Accounting Principles for the relevant period from Gross Revenues, provided, however,
that any bad debt subsequently collected shall be included in Gross Revenues in the period in which
the bad debt is collected.
C. Franchisee shall pay the franchise fee to the City in full compliance with the
requirements set forth in Section 57-16 of Ordinance No. 99-37.
D. The quarterly statements required to be filed by the Franchisee with the City pursuant
to Section 57-16.C of Ordinance No. 99-37 shall be shall be certified by a certified public accountant
and the Franchisee's chief financial or other duly authorized officer. Franchisee shall bear the cost
of the preparation of such statements.
E. The acceptance by the City of any payment from Franchisee of the franchise fee shall
not constitute a release or an accord and satisfaction of any claim the City may have against
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Franchisee for performance of any of its obligations under Ordinance No. 99-37, this Franchise
Agreement, or local, State or Federal Law, including, without limitation, Franchisee's obligation to
pay the proper franchise fee amount owed, subject, however, to applicable statute oflimitations, if
any.
F. Following the expiration or the termination for any reason of its Franchise, Franchisee
shall pay the franchise fee owed as of the date that its operations ceased within thirty (30) calendar
days of ceasing such operations. Such payment shall be accompanied by a Gross Revenues audit
report prepared by a certified public accountant or duly authorized officer of Franchisee showing the
revenues received by Franchisee since the end of the previous fiscal year.
G. Franchisee expressly agrees that: (i) the "franchise fee" includes any tax, fee, or
assessment of any kind imposed by the City or other governmental entity on a cable operator or cable
subscriber, or both, solely because of their status as such; (ii) the "franchise fee" does not include
any tax, fee, or assessment imposed on both utilities and cable operators or their services but not
including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable
subscribers; (iii) the franchise fee does not include capital costs which are required by the franchise
to be incurred by the cable operator for educational or governmental access facilities; (iv) the
franchise fee does not include requirements or charges incidental to the awarding or enforcing ofthe
franchise, including payments for bond, security funds, letters of credit, insurance, indemnification,
penalties, or liquidated damages; (v) Franchisee shall not have or make any claim for any deduction
or other credit of all or any part of the amount of said franchise fee payments from or against any of
said City taxes or other fees or charges of general applicability which Franchisee is required to pay
to the City, which are specified in parts (ii); (iii) and (iv); (vi) Franchisee shall not apply nor seek
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to apply all or any part of the amount of said franchise fee payments as a deduction or other credit
from or against any of said City taxes or other fees or charges of general applicability, which are
specified in parts (ii); (iii) and (iv); (vii) Franchisee shall not apply or seek to apply all or any part
of the amount of any of said taxes or other fees or charges of general applicability which are
specified in parts (ii); (iii) and (iv) as a deduction or other credit from or against any of its franchise
fee obligations, each of which shall be deemed to be separate and distinct obligations of Franchisee.
Section 25. Reports and Records. Franchisee shall furnish the City with all ofthe information
as required under Sections 57-17 and 57-18 of Ordinance No. 99-37.
Section 26. Right to Inspect Financial Records and Facilities.
A. Franchise shall abide by the provisions of Sections 57-17 and 57 -18 ofthe Ordinance
with respect to to reports and records.
B. Pursuantto Section 57-17 and Section 57-33.D of Ordinance No. 99-37, the City shall
have the right to inspect, at Franchisee's local office, and the books and records specified in
Subsection 26.A hereof and such other records as may be required by the City to perform its
regulatory responsibilities under Ordinance No. 99-37 or applicable Federal Law. The City agrees
to carry out any such inspection during Franchisee's normal business hours and upon reasonable
notice. Access by the City, consistent with Section 57-17.D of the Ordinance, to perform its
regulatory responsibilities to Franchisee's books and records shall not be denied on grounds that such
books and records contain proprietary or confidential information.
C. The City shall accord all books and records that it inspects under this Section the
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degree of confidentiality in accordance with Section 57-17 of Ordinance 99-37.
D. Pursuant to Section 57-18 and Section 57-33 of Ordinance No. 99-37, the City shall
have the right to inspect Franchisee's facilities and property during Franchisee's normal business
hours and upon reasonable notice.
Section 27. Customer Service Requirements.
A. Franchisee agrees to comply with each of the customer service requirements set forth
in Section 57-18 of Ordinance No. 99-37.
B. To the extent consistent with applicable law, for thirty (30) days after notice of
retiering or rate increases, a customer may obtain changes in service tiers at no additional charge.
Section 28. City Purchase of Cable System. The City may, upon the recommendation of the
City Manager and the approval of the Commission, acquire ownership of and operate Franchisee's
Cable System in accordance with Section 57-25.E of Ordinance No. 99-37.
Section 29. Modification of Franchise. Franchisee shall file an application with the City for any
modification of its Franchise pursuant to Section 57 -8 of Ordinance No. 99-37. The application shall
fully conform with each of the requirements set forth in that Section that apply to applications for
modification.
Section 30. Transfer of Franchise.
A. No transfer of a franchise shall occur without prior approval of the City, pursuant to
Section 57-24 of the Ordinance, which shall not be unreasonably withheld.
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B. Franchisee shall file an application to transfer its Franchise or to transfer control of
Franchisee in full compliance with Sections 57-8 and 57-24 of Ordinance No. 99-37.
Section 31. Procedures for Requestine Approval of Transfer. In addition to the
requirements set forth in Sections 57-8 and 57-24 of Ordinance No. 99-37, the following
procedures shall be followed by Franchisee in requesting the City's consent to transfer its Franchise
or to transfer control of Franchisee.
A. At least one hundred twenty (120) calendar days prior to the contemplated effective
date of a transfer, Franchisee shall submit to the City an application for approval of the transfer. Such
application shall include the following:
1. A statement of the reason for the contemplated transfer.
2. The name, address and telephone number of the proposed transferee.
3. A detailed statement of the corporate or other business entity organization of
the proposed transferee, including but not limited to the following:
(a) The names, business addresses, state of residence and country of citizenship
of all general partners and/or corporate officers and directors of the proposed transferee.
(b) The names, business addresses, state of residence and country of citizenship
of all persons and entities having, controlling, or being entitled to have or control ten percent (10%)
or more of the ownership of the proposed transferee and the respective ownership share of each such
person or entity.
(c) A detailed and complete financial statement of the proposed transferee,
prepared by a certified public accountant if audited statements were made, and if not, by a duly
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authorized financial officer of the proposed transferee, for the fiscal year immediately preceding the
date of the request for transfer approval, and a letter or other acceptable evidence in writing from a
duly authorized officer of the proposed transferee setting forth a clear and accurate description of the
amount and sources of funding for the proposal transaction and its sufficiency to provide whatever
capital shall be required by the proposed transferee to construct, install, rebuild, maintain and operate
the proposed system in the City consistent with the terms of the Franchise.
(d) A description of all previous experience of the proposed transferee In
operating Cable Systems and providing Cable Services or related or similar services.
(e) A detailed description of the proposed plan of operation of the proposed
transferee, which shall include, but not be limited to the following:
(i) A detailed map indicating all new areas proposed to be served, a
proposed time schedule for the installation of all equipment necessary to become operational
throughout the new areas to be served, and the projected total cost for new construction of the
System.
(ii) A statement or schedule setting forth all proposed classifications of
rates and charges to be made against Subscribers and all rates and charges and to each of any said
classifications, including installation charges, service charges, special, extraordinary, or other
charges.
4. Upon request, the proposed purchase price of the Cable System, and the terms
and conditions of the proposed transfer.
Section 32. Renewal of Franchise. The provisions of Sections 57-8, 57-9 and 57-23 of
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Ordinance No. 99-37 shall govern any and all proceedings to renew this Franchise. If Franchisee
decides to initiate a formal renewal process in accordance with Section 626(a)-(g) of the
Communications Act, 47 U.S.C. 9 546(a)-(g), it and the City must comply with each of the
requirements in the Communications Act as well as the additional requirements set forth in Section
57-23 of Ordinance No. 99-37.
Section 33. Rates.
A. Nothing in Ordinance No. 99-37 or this Franchise Agreement shall prohibit the City
from regulating rates for Cable Service, installation, disconnection, and equipment rental to the full
extent permitted by and consistent with State and Federal Law.
B. Franchisee further agrees that it shall not increase rates or charges for Basic Cable
service, installation, disconnection, or equipment rental without such notice as required by applicable
laws and regulations.
C. Franchisee shall at all times comply with the provisions of Section 57-20 of the
Ordinance with respect to nondiscriminatory rates.
D. Franchisee shall not engage in predatory policy or any other anti -competitive business
practice prohibited by applicable law.
Section 34. Enforcement Remedies.
A. Liquidated Damages. Because the City may suffer damages from any violation by
Franchisee of this Agreement or of Ordinance No. 99-37, which damages may be difficult to
quantify, the City and Franchisee agree that liquidated damages shall be paid to the City by
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Franchisee for violations of this Agreement or the Ordinance in accordance with applicable
provisions of Ordinance 99-37.
B. Revocation or Termination of Franchise. Franchisee's Franchise is subject to
revocation pursuant to Section 57-25 of Ordinance No. 99-37 for any of the reasons set forth therein.
In the event the City exercises its right to revoke the Franchise, the procedures set forth in Section
57-25 of Ordinance No. 99-37 shall apply.
Section 35. Area-wide Interconnection.
A. F or purposes of carriage of the City of Ocoee access channel, the City may request
Franchisee to interconnect with any or all other franchised Cable Systems located within the City or
serving Subscribers within the City, provided that interconnection is technically feasible and
Franchisee and the other operator agree upon reasonable interconnection arrangements, including
an allocation of the costs of interconnection between Franchisee and such other operator that is
reasonable in light of the relative benefits and burdens, including consideration of support provided
for educational and governmental access purposes. Interconnection of Systems shall permit
transmission and reception of program material, and may be done by direct cable connection,
microwave link, satellite, or other appropriate method.
B. Upon receiving the request of the City to interconnect with Cable Systems, Franchisee
shall, where it does not own the affected System or Systems, immediately initiate good faith
negotiations with the operators of the other affected System or Systems in order that costs for
construction and operation of the interconnection link may be shared equitably among the Systems.
Franchisee shall report to the City the results of such negotiation no later than sixty (60) days after
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the City's request. Where Franchisee owns the affected System, Franchisee shall report to the City
on the timing, method and cost of interconnection within thirty (30) days of the City's request.
C. The Franchisee may be granted reasonable extensions of time to interconnect. The
City may rescind its request to interconnect upon petition by the Franchisee to the City, if the City
finds that (1) the Franchisee has negotiated in good faith and has failed to obtain an approval from
the System or Systems of the proposed interconnection; or (2) the cost ofthe interconnection would
be unreasonably high.
Section 36. Written Notice of Acceptance. Within sixty (60) days ofthe Effective Date of the
Commission resolution approving the grant of this Franchise, Franchisee shall provide the City with
written acceptance of all the terms and conditions of this Franchise Agreement. Franchisee's failure
to comply in full with this Section shall render this Franchise Agreement and the Franchise null and
void with no further action by the City, unless the City agrees in writing to extend such period.
Section 37. No Opposition.
A. By execution of this Franchise Agreement, the Franchisee accepts the validity ofthe
terms and conditions of this Franchise Agreement and Ordinance No. 99-37 in their entirety, and the
processes and procedures pursuant to which this Franchise Agreement was entered into and the
Franchise was granted.
B. In the event that after the Effective Date of this Franchise Agreement, or Ordinance
No. 99-37, pursuant to which the Franchise is granted, an official act of any court, agency,
commission, legislative body, or other authority of competent jurisdiction (I) renders the Ordinance
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or the Franchise invalid in whole or in part, or (2) requires the Franchisee or the City either to (a)
perform any act which is inconsistent with any provision of the Ordinance or this Franchise
Agreement, or (b) cease performing any act required by any provision of the Ordinance or this
Franchise Agreement, the Franchisee shall promptly notify the City of such fact. Franchisee and the
City shall enter into good faith negotiations to amend this Franchise Agreement so as to enable the
Franchisee and/or the City to perform the obligations of the Franchise and enable Franchisee to
provide services for the benefit of the City and its residents required by the Franchise to the
maximum extent consistent with said official act.
C. Nothing herein shall limit the ability of Franchisee to lobby or otherwise exercise its
First Amendment right in pursuit of a change in generally applicable federal, state or local law.
Section 38. Execution in Counterpart. This Franchise Agreement may be executed in
counterpart.
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IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day
and year first written above.
CITY OF OCOEE, FLOR DA
(.
B'
FOR USE AND RELIANCE ONLY
BY THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this day of
,20
City Clerk
(SEAL)
C'!
APPROVED BY THE ~
COMMISSION AT AM
ON March 7 , 20 00
UNDER AGENDA ITEM NO. VI F
LEIBOWITZ & ASSOCIATES, P.A.,
Special Counsel
By: '3iau;tK:-' Ba.v3,//Yi(' ,
Name: 8'0<< //0 L. iJcfz;.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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Agreed to and Accepted by Franchisee:
TIME WARNER ENTERTAINMENT -
ADV ANCE/NEWHOUSE PARTNERSHIP, D/B/A!
TIME WARNER:CCLMMTTNTr~~S, lNC~
/
"
By:
N me:
Title:
John N Ri s
President Centra'
orida Division
ATTEST:
J)r~ R dU~
AS TO "FRANCHISEE"
LJMtUC ;/ IU~~
AS TO "FRANCHISEE"
DATE:
May 1, 2000
SECTION 4.
Repeal of Conflicting Resolution. All resolutions or parts of resolutions
in conflict herewith be and the same are hereby repealed to the extent of such conflict.
SECTION 5.
Savings. All rates, fees, charges and financial obligations previously
accrued pursuant to the ordinances and resolutions repealed by the Cable Communications
Ordinance or this Resolution shall continue to be due and owing until paid.
SECTION 6.
Severability. If any part, section, subsection, or other portion of this
Resolution or any application thereof to any person or circumstance is declared void,
unconstitutional or invalid for any reason, such part, section, subsection, or other portion, or the
prescribed application thereof, shall be severable, and the remaining provisions of this Resolution,
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and all applications thereof not having been declared void, unconstitutional or invalid, shall remain
in full force and effect. The City declares that no invalid or prescribed provision or application was
an inducement to the enactment of this Resolution, and that it would have enacted this Resolution
regardless of the invalid or prescribed provision or application.
SECTION 7.
Applicable Law. This Resolution shall be construed in accordance with
the law of the State of Florida and is subject to applicable local, state and federal law.
SECTION 8. EffectJve Date. This Resolution shall take effect immediately upon
passage by the City Commission.
SECTION 9.
Charter Compliance. Pursuant to Section C-8.H of the Charter of the City
ofOcoee, this Resolution has been approved after an advertised public hearing preceeded by at least
thirty (30) days notice of the hearing and the proposed action and publication of such notice once a
week for four (4) consecutive weeks in a newspaper of general circulation in the City of Ocoee.
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PASSED AND ADOPTED this ~ day of
ATTEST:
Title:
City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY
BY THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this
day of
,20
LEIBOWITZ & ASSOCIATES, P.A.,
Special Counsel
By: /3ia-tvtr:v Bafl-t; /Jr'c
ZJI
Name: I]ral{!() L. f3t1r??
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March
,20~.
CITY OF OCOEE, FLORIDA
~ILI
S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD
ON
March 7
2000
, -
UNDER AGENDA ITEM NO. VI F