HomeMy WebLinkAboutOrdinance No. 38-1994r
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ORDINANCE NO. 38 -94
Franchise Agreement
Between
The City of Cape Canaveral, Florida
and
Time Warner Entertainment Company, L.P.
doing business as Time Warner Cable
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ORDINANCE NO. 38 -94
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, BREVARD
COUNTY, FLORIDA, GRANTING A FRANCHISE TO TIME WARNER
ENTERTAINMENT COMPANY, L.P. TO CONSTRUCT, OPERATE AND
MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY AND
SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTING OF
THE FRANCHISE; PROVIDING A SHORT TITLE; PROVIDING FOR
DEFINITIONS; MAKING LEGISLATIVE FINDINGS; PROVIDING FOR
A GRANT OF A NON-EXCLUSIVE FRANCHISE; PROVIDING FOR
COMPLIANCE WITH APPLICABLE LAWS; PROVIDING FOR THE
TERRITORIAL AREA INVOLVED; PROVIDING FOR LIABILITY AND
INDEMNIFICATION; PROVIDING FOR A SYSTEM UPGRADE
SCHEDULE; PROVIDING FOR CONSUMER SERVICE STANDARDS;
PROVIDING FOR EMERGENCY USE OF THE FACILITIES BY THE
CITY; PROVIDING FOR OTHER BUSINESS ACTIVITIES; PROVIDING
FOR SAFETY REQUIREMENTS; PROVIDING FOR CONDITIONS OF
STREET OCCUPANCY; PROVIDING FOR THE PROHIBITION OF
PREFERENTIAL OR DISCRIMINATORY PRACTICES; PROVIDING FOR
REMOVAL OF FACILITIES UPON REQUEST; PROVIDING FOR
RESTRICTIONS ON THE TRANSFER OF THE FRANCHISE;
PROVIDING FOR THE TERM OF THE FRANCHISE; PROVIDING FOR
RATE REGULATIONS; PROVIDING FOR CITY RIGHTS IN '1'111:
FRANCHISE; PROVIDING FOR THE FILING OF MAPS AND REPORTS;
PROVIDING FOR THE PAYMENT OF FRANCHISE FEES TO THE CITY;
PROVIDING FOR FORFEITURE OF THE FRANCHISE; PROVIDING
FOR THE CITY'S RIGHT OF INTERVENTION IN LAWSUITS;
PROVIDING FOR ERECTION AND REMOVAL OF POLES; PROVIDING
FOR RE- REGULATION; PROVIDING FOR BASIC SERVICE;
PROVIDING FOR QUALITY OF SERVICE; PROVIDING FOR PUBLIC
SERVICE; PROVIDING FOR SEVERABILITY; PROVIDING FOR
REPEAL OF CONFLICTING ORDINANCES AND RESOLUTIONS; AND
PROVIDING FOR AN EFFECTIVE DATE.
BE IT ORDAINED by the City Council of the City of Cape Canaveral, Brevard County,
Florida, as follows:
SECTION 1. Short title. This ordinance shall be known and may be cited as the
"Cable Television Franchise Ordinance ".
SECTION 2. Definitions. For the purposes of this ordinance, the following
terms, phrases, words, and their derivations shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense include the future, words in the
plural number include the singular number, and words in the singular number include the plural.
The word "shall" is always mandatory and not merely directory.
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TABLE OF CONTENTS
SECTION NO. TITLE PAGE NO.
1 Short Title 1
2 Definitions 1
3 Legislative findings 2
4 Grant of non - exclusive franchise 3
5 Compliance with applicable laws
and regulations 6
6 Territorial area involved 6
7 Liability and indemnity provision 7
8 System upgrade 8
9 Customer service standards 8
10 Emergency use of facilities by City 9
11 Other business activities 9
12 Safety requirements 9
13 Conditions of street occupancy 10
14 Preferential or discriminatory
practices prohibited 11
15 Removal of facilities upon request 11
16 Restrictions on assignment, transfer,
sale and subleasing 11
17 Term of franchise 12
18 Rates to be charged by Grantee 12
19 City rights in franchise 12
20 Maps and additional reports to be
filed by Grantee 13
21 Payment to the City 13
22 Forfeiture of franchise 14
23 City's rights of intervention 15
24 Erection, removal and common user
job poles 15
25 Re- regulation 15
26 Basic service 15
27 Quality of service 15
28 Public service 16
29 Severability 16
30 Ordinance and resolutions repealed 16
31 Effective date 17
(i)
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a. "City" is the City of Cape Canaveral, Florida.
b. "Cable Act" is the Cable Communications Policy Act of 1984, 47 U.S.C. § §521-
559 and the Cable Television Consumer Protection and Competition Act of 1992,
and as those Acts may be amended.
c. "City Council" is the City Council of the City of Cape Canaveral.
d. "Cable Television System" or "Cable System" shall mean a system of antennas,
cables, wires, lines, towers, wave guides or other conductors, converters,
equipment or facilities designed and constructed for the purpose of producing,
receiving, transmitting, amplifying, and distributing audio, video, and other forms
of electronic or electrical signals, located in the City. Said definition shall not
include any such facility that serves or will serve only subscribers in one or more
multiple -unit dwellings under common ownership, control or management, unless
such facility utilizes public rights -of -way.
e. "Grantee" is Time Warner Entertainment Company, L.P., a Delaware limited
partnership, d/b /a Time Warner Cable or anyone who succeeds in accordance
with the provisions of this franchise.
f. "Gross revenues" means all receipts derived directly or indirectly by the Grantee
or by any assignee, transferee, sublessee or other entity exercising the rights and
privileges of this franchise from any source whatsoever, arising from, attributable
to, or in any way derived from, the sale or exchange of cable services or other
services from the operation of the cable system by the Grantee within the City.
Gross revenues includes, but is not limited to, fees charged subscribers for basic
service; fees charged subscribers for any optional, premium, per - channel or per -
program service; fees charged subscribers for any tier of service other than basic
service; installation, disconnection, reconnection and change -in- service fees;
leased access fees; fees, payments or other consideration from programmers for
carriage of programming on the system; revenue from converter rentals or sales;
advertising revenues; and revenues from home shopping channels. Gross
revenues shall not include franchise fees, bad debts or any taxes on services
furnished by the Grantee which are imposed upon any subscriber or user by the
state, county, City or other governmental unit and collected by the Grantee on
behalf of said governmental unit and which the Grantee passes on in full to the
applicable authority or authorities.
g.
"Person" is any natural person, firm, partnership, association, corporation or
organization or entity of any kind.
SECTION 3. Legislative findings. In considering whether to grant a cable
television franchise within the City to any person, the City has considered all relevant facts and
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matters, both procedural and substantive, in arriving at its decision, including, but not limited
to, the following:
a. The economic impact upon private property within the City.
b. The need for a cable television franchise within the City, if any.
c. The capacity of public rights -of -way to accommodate a cable television system.
d. The present and future use of the public rights -of -way to be used by the cable
system.
e. The potential disruption to existing users of the public rights -of -way to be used
by the cable television system and the result of inconvenience which may occur
to the public.
f. The financial ability of the Grantee to perform and other societal interests,
including the dissemination of information through cable television and the
exercise of the rights of free speech under the First Amendment of the United
States Constitution.
SECTION 4. Grant of non - exclusive franchise.
a. That Grantee is hereby granted by the City of Cape Canaveral the non - exclusive
right to erect, construct, operate and maintain, in, upon, along, across, above,
over and under the streets, alleys, easements, swale areas, public ways, and
public places now laid out or dedicated (and all extensions thereof and additions
thereto) in the City, such poles, wires, cables, underground conduits, manholes
and other conductors, fixtures, and facilities as may be necessary for the
operation and maintenance in the City of a Cable Television System. Without
limiting the generality of the foregoing, this franchise and grant shall and does
hereby include the right, in, over, under, and upon the streets, alleys, easements,
swale areas, public ways, and public places in the City to install, erect, operate
or in any way acquire the use of, as by leasing, renting, or licensing, any and all
lines, poles, or equipment necessary to a Cable Television System, and the right
to make connections to subscribers and the right to repair, replace, enlarge, and
extend said lines, equipment, and connections, providing, however, the
installation of facilities as is above set forth shall be in such locations and in such
a manner as is approved in advance by the City.
b. The right to use and occupy said streets, alleys, easements, swale areas, public
ways and places herein set forth shall not be exclusive, and the City reserves the
right to grant a similar use of said streets, alleys, easements, swale areas, public
ways and places to any person at any time during the period of this franchise.
Should such subsequent franchise be granted, Grantee shall have the right to
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operate under any and all conditions specified in such subsequent franchise, at
Grantee's discretion.
c. This grant is made upon the following conditions, limitations, and requirements:
1. All installations in the public right -of -way shall be done by Grantee in
accordance with the specifications and requirements of the City. Any
repair work which requires the disturbance of the surface of any street or
which will interfere with traffic shall not be undertaken until Grantee shall
have secured City permits as required in all other cases.
2. All transmission and distribution structures, lines, and equipment erected
by Grantee within the City shall be so located as to cause minimum
interference with the proper use of streets, and to cause minimum
interference with the rights or reasonable convenience of property owners
who adjoin any of said streets.
3. In case of any disturbance of pavement, sidewalks, driveways, or other
surfacing, grass, or other landscaping, Grantee shall, at its own expense
and in a manner approved by the City, promptly replace and restore such
places so disturbed in as good condition as before said work was
commenced.
4. Grantee shall not place any fixtures or equipment where the same will
interfere with any gas, electric, telephone, sewer, or water lines,
reclaimed water lines, fixtures, or equipment, and the location by Grantee
of its lines and equipment shall be in such manner as not to interfere with
the usual travel on said streets, and the use of the same for the installation
or operation of gas, electric, telephone, water, or sewer lines equipment.
5. Grantee, at the request of the City, shall temporarily raise or lower its
overhead lines to permit the moving of buildings or other objects. There
shall be at least five (5) working days' notice given to Grantee of the
proposed date and route for movement of such buildings or other objects.
The reasonable cost of temporarily raising or lowering of such lines is to
be borne by the person or organization moving the buildings, or other
objects, except in the case of a governmental body or agency, in which
event the cost shall be borne by Grantee.
6. Nothing in this franchise ordinance shall vest in Grantee any property
rights in City -owned property, nor shall the City be compelled to maintain
any of its property any longer than, or in any fashion other than in the
City's judgment its own business or needs may require.
7. The City shall not be liable to Grantee or any other person or persons for
any damage occurring to the property of Grantee caused by employees of
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the City in the performance of their duties, nor shall the City be held
liable to Grantee or any other person or persons for the interruption of the
Grantee's service by actions of City employees in the performance of their
duties.
8. Grantee's cable 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 such existing power and telephone
facilities are installed underground. Grantee shall endeavor to enter into
agreements for the purpose of sharing these facilities with any person now
or hereafter authorized by permit, 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 Grantee's cable system
shall be accomplished on existing utilities poles and easements where
feasible.
9. Grantee shall relocate any above ground portion of its cable system
underground in any areas where existing power or telephone facilities are
hereafter so relocated. Any such relocation shall be at Grantee's expense,
and such relocation shall be accomplished concurrently with relocation of
any such power and telephone facilities. The City will facilitate
cooperation of all utilities involved in such relocation; however, the acts
or omissions of the City in facilitating cooperation shall not relieve
Grantee of its duties under this paragraph 9.
10. The right to use the City's streets herein granted is subject to the terms of
all rights or franchises heretofore granted by the City, and to the terms of
all rights or franchises hereafter granted by the City, to companies
primarily engaged in the rendering of public utilities services or services
similar to the Grantee's.
11. Grantee's work, while in progress, shall be properly protected at all times
with suitable barricades, flags, lights, flares, or other devices as are
reasonably required to protect all members of the public having occasion
to use the portion of the streets involved, or adjacent property.
12. Grantee shall have the authority to trim trees upon and overhanging streets
of the City so as to prevent the branches of such trees from coming in
contact with Grantee's wires and cables, all trimming to be done under the
supervision and direction of the City and at the expense of Grantee.
13. Grantee shall promptly and at its own expense relocate, remove or modify
any part of this cable system which the City may request in connection
with any public purpose including the abandonment of any right -of -way
street, or to accommodate improvements to such streets, or to
accommodate City sewer, water, electric, communications, or other
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facilities or parks or open space or recreation areas occupying any part of
the streets.
14. When it does not interfere with the operation of the cable system, the City
shall have free use of any poles in Grantee's cable system owned by
Grantee to carry conductors for any City -owned electric, communications
or signaling system, excluding a cable system.
15. 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 Grantee to use, because of reservations in favor of the dedicators
or because of other legal impediments; therefore, in making this grant, the
City does not warrant or represent as to any particular street or portion of
a street that it has the right to authorize Grantee to install or maintain
portions of its cable system therein, and in each case the burden and
responsibility for making such determination in advance of the installation
shall be upon Grantee.
16. If Grantee shall fail to make any repair, remove or relocate any part of its
cable system, or otherwise perform its obligations hereunder, then the
City is hereby authorized to do the same at Grantee' s expense, and
Grantee shall reimburse the City for the cost thereof promptly upon
receipt of an invoice. All such repairs, removal or relocation shall be
accomplished within forty-eight hours of the Grantee receiving a notice
that repair, removal or relocation is necessary. Such time period can be
extended if such repair, removal or relocation cannot reasonably be
accomplished within such time with prior approval of the City.
SECTION 5. Compliance with applicable laws and regulations. The Grantee
shall, at all times during the life of this franchise, be subject to all lawful exercise of the police
power of the City as established by future ordinances. The construction of new facilities shall
be applied for and approved by the City prior to construction commencing. Grantee shall
maintain and operate the Cable Television System according to all pertinent rules and regulations
of the Federal regulatory commission or agency having jurisdiction in respect to any matters
affecting cable operations authorized pursuant to this franchise. The construction, operation, and
maintenance of the system by Grantee shall be in full compliance with the National Electric
Code, as from time to time amended and revised, and in full compliance with all other
applicable rules and regulations now in affect or hereinafter adopted by the Federal
Communication's Commission, or other public regulatory agency, or the State of Florida.
SECTION 6. Territorial area involved. This franchise is granted in all areas
within the present territorial limits of the City and in any area henceforth added thereto during
the term of this franchise.
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SECTION 7. Liability and indemnity provision.
a. The Grantee shall indemnify and hold harmless the City, its officers, agents and
employees from all damages, judgments, claims, expenses, costs including
interest, court costs and attorneys' fees, arising out of or connected with the
installation, presence and /or operation of Grantee's cable system authorized
herein, not resulting from City's gross negligence, willful misconduct or criminal
acts as determined by a court of competent jurisdiction.
b. The Grantee shall pay, and by its acceptance of this franchise the Grantee
specifically agrees that it will pay, all damages and penalties which the City
legally may be required to pay as a result of the granting of this franchise. These
damages arising out of copyright infringements and all other damages arising out
of the installation, presence, operation, or maintenance of the cable system
authorized herein, whether or not any act or omission complained of is
authorized, allowed, or prohibited by this franchise.
c. Grantee shall maintain, and by its acceptance of this franchise specifically agrees
that it will maintain throughout the terms of this franchise, liability insurance with
insurance companies licensed to do business in the State of Florida and rated A+
by Best's Rating Guide insuring the City and the Grantee with regard to all
damages mentioned in subparagraphs a. and b. above in the minimum amounts
of:
1. $1,000,000 for bodily injury or death to any one person, within the limit,
however, of $3,000,000 for bodily injury or death resulting from any one
accident;
2. $500,000 for property damage resulting for any one accident;
3. $1,000,000 for the infringement of copyrights; and
4. $1,000,000 for all other types of liability.
d. Grantee shall maintain, and by its acceptance of this franchise specifically agrees
that it will maintain throughout the term of this franchise, a faithful performance
bond running to the City, with a good and sufficient surety approved by the City,
in the penal sum of $30,000, conditioned that Grantee shall well and truly
observe, fulfill, and perform each term and condition of this franchise and that
in case of any material or substantial breach, for which cure is not begun within
ten (10) business days after notice from the City and cure is not completed within
a reasonable time after written notice as determined in good faith by the City, the
City shall be entitled to recover from the principal and sureties thereof the amount
of all damages, including all costs and attorney's fees incurred by the City,
proximately resulting from the failure of Grantee to well and faithfully observe
and perform any and all of the provisions of this franchise.
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e. The certificate of insurance policy, with the City named as an additional insured,
and proof of bond obtained by Grantee in compliance with this section have
herewith been filed with the City Council, and such proof of insurance and bond,
along with written evidence of payment of required premiums, shall be filed
annually and maintained with the City Clerk during the term of this franchise.
f. Failure of the Grantee to provide the insurance coverage and bond as above set
forth and to keep said insurance coverage and bond in effect at all times during
the duration of this franchise shall constitute a material breach of the franchise
and this franchise shall be subject to a termination upon receipt of written notice
from the City to the Grantee should the Grantee fail to cure such defect within
ten (10) business days from the said receipt of written notice.
SECTION 8. System upgrade. Within six (6) months of the effective date of
this ordinance, the Grantee shall submit to the City its schedule to perform an upgrade of its
cable system in the City. The Grantee's plan shall provide a schedule which shall include, as
a minimum, a 550 MHz cable system.
SECTION 9. Customer service standards.
a. Grantee shall adhere to the customer service rules of the Federal Communications
Commission and any additional customer service standards within this franchise
agreement. In the event the Federal Communications Commission shall alter or
amend its consumer service rules, this Franchise Agreement shall be deemed
amended to include the altered or amended rules.
b. The Grantee shall provide an office within the Cape Canaveral/Cocoa Beach area
which shall be open during usual business hours. Upon receipt of a service
request involving an outage or other reception problem during normal working
hours and operating conditions, the Grantee will make every effort to correct the
service request within four (4) hours or by contacting the requesting subscriber
and indicating why it cannot be corrected within the time period and when the
request for service will be remedied. The Grantee will make every effort to
respond to service requests involving an outage or severe reception problem
received during other than normal business hours by correcting the service request
within twelve (12) hours or by contacting the subscriber within the same period
to indicate why it cannot be corrected in that time period and when the situation
will be remedied.
c. In the event service to any subscriber is interrupted for four (4) hours or more
through the fault of the Grantee, the Grantee shall provide at the request of such
subscriber, a rebate or credit equal to one (1) day of charges for an outage of at
least four (4) hours within a 24 -hour period. In calculating the rebate or credit,
the time of outage shall be calculated from the time the outage is reported to the
Grantee.
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d. The Grantee shall maintain records of the time of complaint, nature of complaint,
and any corrective action taken. These records shall be made available to the
City Manager, or a designee, upon request. A summary of complaints shall be
prepared by the Grantee and submitted to the City Manager, or a designee,
quarterly. The City Manager may establish by rule a format for the quarterly
summary. The Grantee shall not be required to disclose any information which,
by virtue of federal or state law, Grantee is prohibited from disclosing to the
City.
e. Responsibility for the mediation of an unresolved complaint against the Grantee
regarding the quality of service, equipment malfunctions, and similar matters, is
hereby delegated to the City Manager.
f. The Grantee shall comply with Section 551 of the Act regarding protection of
subscriber privacy.
g.
Unless a written contract exists between the Grantee and the subscriber, cable
television service shall be provided on a month -to -month basis. The subscriber
may terminate service at any time without penalty.
h. The Grantee shall provide written notice prior to discontinuance of service
because of nonpayment. When the Grantee has improperly discontinued service,
it shall provide free reconnection.
All personnel, agents and representatives of the Grantee, including its installation
subcontractors, who have occasion to deal directly with subscribers in the field,
shall carry photo identification badges, to be displayed upon request, when acting
on behalf of the Grantee.
SECTION 10. Emergency use of facilities by City. In the case of any
emergency or disaster, the Grantee shall provide emergency override equipment which shall be
shared and coordinated with the other governmental entities within Brevard County served by
the same 'emergency override equipment.
SECTION 11. Other business activities. This franchise authorizes only the
operation of a cable system as provided for herein, and does not take the place of any other
franchise, license, or permit which might be required by law of Grantee.
SECTION 12. Safety requirements.
a. Grantee shall at all times employ due care, and shall install and maintain in use
commonly accepted methods, procedures, and devices for preventing failures and
accidents which are likely to cause damage, injuries, or nuisances to the public.
b. Grantee shall install and maintain its wires, cables, fixtures, and other equipment
in accordance with the requirements of the National Electrical Code, and in such
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manner that they will not interfere with any installations of the City or of a public
utility serving the City, and as approved in advance by the City, but the ultimate
liability therefor shall be solely the Grantee's.
c. 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.
d. Grantee shall have sufficient employees to provide safe, adequate, and prompt
service at all times for its cable system.
SECTION 13. Conditions of street occupancy,.
a. In case of disturbance of any street, sidewalk, alley, public way or paved area,
the Grantee shall, at its own cost and expense and in a manner approved by the
City, replace and restore such street, sidewalk, alley, public way, or paved area
in as good a condition as before the work involving such disturbance and such
work shall be accomplished within 48 hours of such disturbance or such expanded
time as is agreed upon between the City and the Grantee in written form in
advance of such disturbance.
b. If, at any time during the period of this franchise, the City shall lawfully elect to
alter or change the grade of any street, sidewalk, alley, or other public way, the
Grantee, upon reasonable notice by the City, shall remove, relay, and relocate its
poles, wires, cables, underground conduits, manholes, and other fixtures at its
own expense.
c. Before any poles or other fixtures are placed in any public way by the Grantee,
they shall be approved by the City and placed in such manner as not to interfere
with the usual traffic on such public way. In the event that there is any
disagreement between the City and the Grantee regarding placement of poles or
the fixtures, the City Council shall consider such issue and render a decision
relative to poles or fixtures in public rights -of -way. The decision of the City
Council shall be final and binding upon the Grantee.
d. The Grantee shall have the authority to trim trees upon and overhanging streets,
alleys, sidewalk, easements, and public ways and places of the City as to prevent
the branches of such trees from coming in contact with the wires and cables of
the Grantee. The right granted herein shall not give the Grantee the right to
damage specimen trees and shall allow only such trimming of tress that are in or
overhang public rights -of -way to a degree as is absolutely necessary for safety
purposes. In the event of any dispute between abutting property owners and the
Grantee, the City shall determine the amount of tree trimming to be allowed.
e. In all sections of the City where the cables, wires, or other like facilities of public
utilities are required to be placed underground, or are placed underground by the
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utility on whole pole the Grantee's lines were formerly suspended, the Grantee
shall place its cables, wires, or other like facilities underground to the maximum
extent that existing technology reasonably permits the Grantee to do so.
SECTION 14. Preferential or discriminatory practices prohibited. All services
rendered and all rules and regulations adopted by Grantee shall have general application to all
persons and shall not subject any person to prejudice or disadvantage on account of race, gender,
religion, origin or ethnicity. The Grantee shall not deny cable television service to any group
of potential residential subscribers within the City because of the income of the residents of the
area in which such group presides. The Grantee shall not charge subscribers different rates for
basic cable television service for the same class or type of service. This section shall not be
construed to prohibit separate rates for residents of multiple unit dwellings where the rates are
governed by a contract or bulk rate agreement between the Grantee and the owners or operators
of non - residential properties, such as hotels and motels, as long as such separate rates are not
subsidized by other classes of subscribers. However, this Section is not intended to restrict
normal, competitive or periodic promotional or marketing efforts or to restrict the Grantee from
offering reasonable discounts to senior citizens or other economically disadvantaged groups in
accordance with the Act.
SECTION 15. Removal of facilities upon request. Upon termination of service
to any subscriber, the Grantee shall promptly, in not more than seven (7) business days, remove
all its external facilities and equipment from the premises of such subscriber upon his request,
without cost to the subscriber.
SECTION 16. Restrictions on assignment. transfer. sale and subleasing.
a. The rights and privileges hereby granted are considered personal, and if Grantee
sells, assigns, transfers, leases or pledges such rights or privileges, or both, in
whole or in part, either directly or by operation of law, without prior approval
of the City, then the City shall have the right to terminate this franchise for no
other cause. City shall terminate this franchise in writing, certified mail, return
receipt requested, to Grantee, and such termination shall be effective sixty (60)
days from said date of mailing. No such prior consent or approval of the City
shall be required for any transfer or assignment to a person controlling, controled
by, or under the same common control as the Grantee. The rights and privileges
hereby granted shall not be mortgaged or encumbered without the prior consent
and approval of the City given by resolution.
b. In addition to the provisions for termination provided for in subparagraph a.
hereof, the City shall have the right to terminate this franchise upon any actual
or pending change in, or transfer of, or acquisition by any other party of, control
of Grantee without prior approval of the City. A change in, transfer of, or
acquisition of control includes an acquisition of more than fifty percent (50%) of
the capital interests of Grantee by a person or a group of related persons who
before the acquisition owned less than fifty percent (50 %),or any change in actual
working control in whatever manner exercised. Grantee shall annually submit to
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the City a list of all general partners and limited partners of Grantee and a list of
all shareholders and a list of all officers and directors of the general partner. By
its acceptance of this franchise, Grantee specifically agrees that any violation of
Section 16 shall constitute a material violation of this franchise by the Grantee
and City shall have the right to terminate this franchise.
c. The City will not approve any transfer or assignment of the franchise provided
for herein unless adequate financial assurance is made to and approved by the
City Council.
SECTION 17. Term of franchise. The term of the grant herein contained shall
commence on the effective date of this ordinance and end on November 1, 2004.
SECTION 18. Rates to be charged by Grantee. To the extent allowed by law,
the City reserves all rights to implement and impose regulation of subscriber rates and charges.
Any such rate regulation may be accomplished by separate ordinance, by amendment to this
Ordinance, or in any other lawful manner. Grantee shall be provided thirty (30) days' written
notice prior to the effective date of any regulation of subscriber rates and charges. Grantee shall
provide subscribers and the City thirty (30) days' advance written notice for any rate increase
(if rates are not then regulated by the City).
SECTION 19. City rights in franchise.
a. The right is hereby reserved to the City to adopt, in addition to the provisions
contained herein and in existing applicable ordinances, 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 rights herein granted, except that the rights granted herein shall not limit
the inherent legislative powers of the City.
b. At the expiration of the term for which this franchise is granted, or upon its
termination and cancellation, as provided for herein, the City shall have the right
to require Grantee to remove, at its own expense and with dispatch, all portions
of its system from the City streets.
c. The City hereby reserves the right at and after the expiration of this franchise,
and Grantee hereby grants the City the right, to purchase all or any part of the
property of Grantee's cable system operated within the City's municipal boundary
hereunder, at fair market value as a going concern, but with no value allocated
to the franchise itself. If fair market value cannot be agreed to by the City and
Grantee such value shall be determined by arbitration in accordance with the laws
of the State of Florida.
d. If the City elects to purchase said property pursuant to the provisions hereof, it
shall give written notice of its election to the Grantee within sixty (60) days prior
to the expiration of the term hereof. Upon the exercise of this option by the City,
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and receipt of payment as determined in accordance with applicable statutes, the
Grantee shall immediately execute such deeds or instruments of conveyance to
City as shall be required to convey the City the title of the property.
e. Nothing herein shall be deemed a waiver of, limitation of, or in any way affect
Grantee's rights under applicable law, including without limitation, its rights
regarding renewal of its franchise and /or its rights to review of the outcome of
any arbitration pursuant to subsection c. in a court of competent jurisdiction.
SECTION 20. Maps and additional reports to be filed by Grantee.
a. Grantee shall make available to the City, upon request, accurate maps or plats of
all existing installations, promptly as such maps or plats are prepared, which shall
be accomplished no later than sixty (60) days after such request.
b. Grantee shall file annually with the City Clerk, not later than ninety (90) days
after the end of Grantee's fiscal year or when published, a copy of its report to
its stockholders.
c. Grantee shall keep on file with the City Clerk a current list of its owners,
stockholders, and bondholders; provided, however, that this requirement shall be
inapplicable if Grantee's stock is listed on a national exchange.
SECTION 21. Payment to the City.
a. During the life of this franchise, the Grantee shall pay to the City a sum equal to
three percent (3 %) of the gross receipts of the Grantee from income derived from
subscribers of the City excluding bad debts, taxes, and fees collected by the
Grantee on behalf of any governmental entity. Payment to the City for each of
the years that this Ordinance is in effect shall be made quarterly on or before the
last day of the month immediately following the end of each calendar quarter,
based upon the records of the Grantee for the preceding quarter. On March 1 of
each year, Grantee will provide to the City a certified copy of its receipts for the
previous calendar year.
b. The Grantee agrees that upon written request from the City, shall enter into
negotiations regarding the terms of an adjustment to the franchise fee in
accordance with applicable law.
c. The City shall, during reasonable business hours, have the right to review the
records of the Grantee by City employees or agents of the City to determine the
accuracy of the payments then being made to the City. The City may audit the
records of the Grantee for the prior thirty-six (36) month period beginning with
the close of the most recent fiscal year by a Certified Public Accountant selected
by the City (other than on a contingent fee basis). The cost of such audit shall
be at the expense of the City unless an additional amount due the City of four
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percent (4%) or greater is revealed by such audit in which case the cost of the
audit, together with such additional amount due shall be paid to the City not later
than sixty (60) days following written notice to the Grantee. The Grantee may
review the results of the audit and confer with the City to resolve any audit
findings. Any payment of any fee or other sum due under the terms of this
Ordinance which is not made on a timely basis shall incur a late fee of 10% of
such amount and shall bear interest in the amount applicable to judgments in
circuit court.
SECTION 22. Forfeiture of franchise.
a. In addition to all other rights and powers pertaining to the City by virtue of this
franchise or otherwise, the City reserves the right as defined in federal or state
legislation to terminate and cancel this franchise and all rights and privileges of
Grantee hereunder in the event that Grantee:
1. Violates any material or substantial provision of this franchise or any rule,
order, or determination of the City made pursuant to this franchise, and
fails to begin cure within five (5) days of notice from the City and to
complete cure within a reasonable time after notice, as determined by the
City;
2. Becomes insolvent, unable or unwilling to pay its debts, or is adjudged as
bankrupt;
3. Attempts to dispose of any of the facilities or property of its cable
business to prevent the City from purchasing same; or
4. Evades any of the provisions of this franchise or practices any fraud or
deceit upon the City.
b. Such termination and cancellation shall be by ordinance duly adopted after thirty
(30) days notice to Grantee, and shall in no way affect any of the City's rights
under this franchise or any provision of law. Before this franchise may be
terminated and canceled under this Section, Grantee must be provided with an
opportunity to be heard before the City Council.
c. The City shall notify the Grantee in writing of the exact nature of the alleged
violation constituting a ground for termination and given the Grantee 30 days or
such greater amount of time as the City may specify, to correct such violation or
to present facts and arguments to refute the alleged violation. If the City then
concludes that there is a basis for termination, it shall notify the Grantee thereof.
If within the designated time the Grantee does not remedy and /or put an end to
the alleged violation, the City, after a public hearing where all interested parties
may be heard, may suspend or revoke the franchise if it determines that such
action is warranted. The Grantee shall not be held in default nor suffer any
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penalties where non - compliance or default is caused by an event beyond the
Grantee's control. The Grantee shall have the right to review by a court of
competent jurisdiction upon any determination by the City of non - compliance.
SECTION 23. City's rights of intervention. The Grantee agrees not to oppose
intervention by the City if any suit or proceeding to which the Grantee is a party, concerning
or involving Grantee and the City's rights under this franchise.
SECTION 24. Erection. removal. and common user job poles.
a. No poles or other wire holding structures shall be erected by the Grantee without
prior approval of the City with regard to location, height, type, and any other
pertinent aspect. However, no location of any pole or wire holding structures of
the Grantee shall be a vested interest and such poles or structures shall be
removed or modified by the Grantee at its own expense whenever the City
determines that the public convenience so requires.
b. Where poles or other wire holding structures already existing for use in serving
the City are available for use by the Grantee, but it does not make arrangements
for such use, the City may require the Grantee to use such poles and structures
if it determines that the public convenience so requires and the terms of the use
available to the Grantee are just and reasonable.
SECTION 25. Re- regulation. Grantee agrees that in the event that the Congress
of the United States, Federal Communications Commission, or any other appropriate
governmental agency, or by ruling of case law or otherwise allows additional regulatory
authority regarding rates and fees, programming, basic channel carriage or any other regulatory
authority to be exercised by the City, then and in that event this franchise shall allow such
additional or other regulation to be undertaken by the City at such time that it is legally
permissible to do so. The City shall be entitled to pass an ordinance supplementing this
franchise ordinance implementing the rights then granted by law as above set forth. The City
will notify the Grantee thirty (30) days prior by certified mail of a proposed ordinance.
SECTION 26. Basic service. Except as prohibited by law, the basic service to
be provided to the subscribers within the City shall be not less than the basic service as is
supplied to the other customers served by the same system.
SECTION 27. Quality of service. The Grantee expressly undertakes and agrees
that it will at all times during the term hereof transmit signals of strength and quality, and use
such materials and components, as are necessary to insure that Grantee's subscribers will receive
throughout the term hereof a quality of cable service in keeping with the prevailing highest
standards of the cable industry.
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SECTION 28. Public service.
a. Grantee shall, when requested by the City, provide a basic single cable service
outlet, without installation or monthly service charge, within the City limits, and
when its lines have been extended to within 125 feet of the following facilities:
all public, accredited educational K -12 private, and accredited educational K -12
parochial schools, all public libraries, city -owned recreational buildings, City
Hall, Sheriff's precinct in the City, City Fire Stations, and if economically
feasible the Public Works buildings owned by the City and used by the City for
municipal purposes. The subject installations will not include the distribution
systems within the facilities.
b. Upon completion of the system upgrade contemplated in Section 8, the Grantee,
at the City's option, shall designate a channel for governmental use (hereafter
referred to as Government access channel), or provide up to twelve (12) hours of
air time for governmental use per week. If required, the Government access
channel will be provided, as technically possible, to the subscribers within the
franchised area as part of the basic cable service offered by the Grantee.
Utilization of this channel by the City shall be in accordance with all applicable
Federal, State and Local laws and is in addition to Grantee's obligation under the
Act to carry qualified noncommercial educational television stations. The Grantee
is specifically not required to provide a Government access channel unless so
requested by the City. Any segment of the Government access channel
established for the City shall be under sole control of the City. Any City
programming must meet technical standards of Grantee.
c. If technically feasible, the Grantee, at the City's option, may lease a channel
within the cable system for the transmission of voice, data, video telemetry or
other services between City facilities served by the Grantee. It will be the City's
responsibility to provide all equipment necessary to provide bandwidth
management and signal preparation, transmission and reception. The Grantee
reserves the right to set technical standards and specifications for this equipment
consistent with maintaining adequate signal quality and protection of all signals
in the system from interference.
SECTION 29. Severability. If any section, subsection, sentence, clause, phrase,
or portion of this Ordinance is for any reason held to be unconstitutional or invalid by any court
of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent
provision and such holding shall not affect the validity of the remaining portions hereof.
SECTION 30. Ordinances and resolutions repealed. Ordinance No. 36 -64,
Ordinance No. 16 -79, Appendix A, Article I of the City Code of Ordinances, Resolution No.
88 -54, Resolution No. 92 -05, Resolution No. 94 -37 and ordinances and resolutions or parts of
ordinances and resolutions in conflict with the provisions of this Ordinance are hereby repealed.
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SECTION 31. Effective date. This Ordinance shall take effect immediately upon
its adoption.
ADOPTED BY the City Council of the City of Cape Canaveral, Brevard County,
Florida, this 1st day of November , 1994.
ATTEST:
hi we
Faith-G. Miller, CI7
Approved as do vomit
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Patrick ,F!. c'r APTOPNEY
Accepted:
FLORIDA DIVISION OF TIME WARNER
CABLE, A DIVISION OF TIME WARNER
ENTERTAINMENT COMPANY, L.P.
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William H. Brown, President