Loading...
HomeMy WebLinkAbout194 Franchise - Cablevision r': ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ZEPHYRHILLS, FLORIDA, GRANTING A FRANCHISE TO THE PASCO COUNTY CABLEVISION COMPANY, LTD. , A COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, WHOSE ADDRESS IS 112 RIVER ROAD SOUTH, NEW PORT RICHEY, FLORIDA 33552, . ITS SUCCESSORS AND ASSIGNS TO OPERATE -HAINTAIN A COMMUNITY ANTENNA TELEVISION - SYSTEM IN ZEPHYRHILLS, FLORIDA; SETTING FORTH CONDITIONS ACCOMPANING THE GRANT OF FRANCHISE ; PROVIDING FOR CITY REGULATION AND USE OF THE COMMUNITY ANTENNA TELEVISION SYSTEM AND PRES- CRIBING PENALTIES FOR THE VIOLATION OF THE FRANCHISE PROVISION. Be It Enacted by the City Council of the City of Zephyrhills, as follows : Section 1. Short Title. This Ordinance shall be known and may be cited as the Zephyrhills CATV Franchise Ordinance. Section 2. Definitions. For the purposes of this -Franchise, the following terms, phrases and words 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 vice versa. The word "shall" is always mandatory. (a. ) "City" is Zephyrhills, Florida, a municipal corporation organized and existing under the laws of the State of Florida. (b. ) "Contractor" is Pasco County Cablevision Company, Ltd. , a company organized and existin-g under the laws of the State of Florida, and having its address and principal place of business at 112 River Road South, New Port Richey, Florida 33552. I, 1' (c. ) 'Council" is the City Council of Zephyrhills, Florida. (d. ) "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. (e. ) "CATV" shall be _ deemed to mean Community Antenna Television, as defined by the Federal Communications Commis- sion or its successor. (f. ) "FCC" is the Federal Communications Commission. Section 3. Grant of Non-Exclusive Franchise. There is hereby granted by the City to the Contractor the Non-Exclusive Franchise right and privilege to construct, erect, operate and maintain, in; upon, along, across, above, over or under the streets, alleys, easements, public ways and public places (now laid out or dedicated and all extensions ( thereof and additions thereto in the City), the poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the installation,. maintenance and operation in the City, of a CATV system either separately or upon or in� conjunction with any public utility maintaining the same i the City with all of the necessary and desirable appliances and appurtenances per- taining thereto. Without limiting the generality of the foregoing, this non-exclusive franchise grant and shall and does hereby include the right, in, over, under and upon the streets, sidewalks, alleys, easements and public grounds and places in the City to install, erect, operate or in. any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to a CATV system and the right to mak 2. i I connection to subscribers, the right to repair, replace, enlarge, and extend said lines, equipment and connections. The right granted for the purposes herein set forth shall not be exclusive and the City reserves the right to grant a sim'iliar use of said streets, alleys, easements, public ways and places to any person at any time during the period of this agreement. Section 4. Compliance with Applicable Laws and Ordinan es. The Contractor shall at all times during the life of this Franchise be subject to all lawful exercise of the police power of the City and to such reasonable regulations as the City shall by ordinance provide. The Contractor shall save the City- harmless from all loss; sustained by the City on account of any suit, judgment, execution, claim or demand. whatsoever resulting from negligence on the part of the Contractor in the construction, operation and maintenance of the CATV system in the City and from any suits, liability, obligation for libel, slander, copyright infringement, unfair competitio , or obligation of suits of any kind or nature whatsoever by a third party, arising out of or incident to the exercise by the Contractor of the franchise rights herein granted. For this purpose the Contractor shall carry property damage and public liability insurance in some responsible insurance company or companies qualified to do business in the State of Florida. The amounts of such insurance and the form of the insurance policy shall be subject ._to the approval of the City The amounts of such insurance to be carried for liability due to' damage to property shall be not less than $50,000.00 to - any one person and $100,000.00 as to any one accident and 3. against liability due to injury � to or death of persons, $300,.000.00 as to any one person and $1,000,000.00 as to one accident. The City shall notify the Contractor within thirty (30) days after the presentation of any claim or demand either by suit or otherwise, made against the City on account of any negligence or other claim or liability as aforesaid on the part of the Contractor. (b) The Contractor shall pay and by its acceptance of this Franchise specifically agrees that it will pay all damages, penalties, whi.ch the City may be legally required to pay as a result of granting this franchise. These damages and penal ies shall include but shall not be limited to damages arising out of copyright infringements and all other damages arising out of the installation, operation or maintenance of the CATV system authorized herein whether or not an act or ommiss 'on complained of is authorized, allowed or prohibited by this Franchise. (c.) The Contractor sha�ll .pay and by its acceptance o this Franchise specifically agrees that it will pay all expen es incurred by the City to defend itself in regard to all damage and penalties mentioned in this section. These expenses shal include out-of-pocket expenses, such as attorney' s fees and shall include the reasonable value of any services rendered by the City Attorney or his assistants or any employees of the City. (d. ) The Contractor maintains and by its acceptance o this Franchise and specifically agrees that it will maintain • throughout the term of this Franchise, the liability insurance insuring the City and itself with regard to the damages as herein specified. 4. i r_ (e.) The Contractor shall maintain by its acceptance of this Franchise and specifically agrees that it will maintain throughout the term of this Franchise a faithfull performance bond running to the City with a corporate surety authorized to do business as a surety in the State of Florida, in the penal sum of $202u1 Xk , conditioned that the Contractor shall well and truly observe, fulfill an.d perform each condition of this Franchise and that in the case of any breach of condi- tion of the bond, the amount thereof shall be recoverable from the principal or insuror thereof by the City , for all damages, proximately resulting from the failure of the grantee to well and faithfully observe, and perform any provision of this Franchise. (f. ) The insurance policy and bond obtained by the Contractor in compliance with this section must be approved by the City Council and such insurance policy and bond, along with written evidence of payment of required premiums, shall b filed and maintained with the City Clerk of the City, during the term of this Franchise. Section 5. Territorial Area Involved. This Franchise embraces all of the present territorial limits of the City and any area which may henceforth be added to the corporate limits of the City during the term of this Franchise. Section 6. Prohibition of Pay TV. Except in cases where no additional charge is made therefor to customers, the Contractor is specifically barred from delivering television signals directly or indirectly from any pay television source.'; 5. I I Section 7. Guarantee of Efficient Service. The Contractor shall maintain and operate its system and render efficient service to its subscribers during the term of this agreement; however, "efficient service" shall be synonymous and in conformity with the published rules of the FCC. The signal of any television station carried on the system shall- be carried without material degradation in quality within the limitations imposed by the technical state of the art, and as set forth by the FCC, and specifications and standards prepared by the engineering department of the City. Section 8. Operation and Maintenance of System. (a. ) The Contractor shall render efficient service, make repairs promptly, interrupt service only for good cause and for the shortest time possible. Such interruptions insof r as possible shall be preceded by notice and shall occur durin periods of minimum use of the system. (b. ) The Contractor shall maintain an office in the area;, which shall be open during all usual business hours, have a listed telephone, and be. so operated that complaints and requests for repairs or adjustments may be received at any time. (c. ) All structures, lines, and equipment erected by the Contractor within the City shall be so located as to caus minimum interference with the proper use of streets, alleys, easements and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners and the Contractor shall comply with all reasonable, proper and lawful ordinances of the City now: or 6. I I I - hereafter in force. Existing poles, posts and other such structures of the electric power company or any telephone company. or any other public utility which may be available to the Contractor for leasing or licensing at reasonable terms shall be used to the extent practicable in order to minimize interference with travel. (d. ) In the case of any disturbance of pavement, side- walk, driveway or -other surfacing, the Contractor shall at its own cost and expense and in a manner approved by the City I Council of the City replace and restore all paving, sidewalk, driveway or surface so disturbed in as good condition as be— fore said work was commenced. (e.) In the event that in any duri-ng the period i of this agreement the City shall lawfully elect to alter or change any street, alley, easement or other public way re- quiring the relocation of the facilities of the Contractor, then in such event the Contractors upon reasonable notice by the City, shall remove, relay and relocate the same at the Contractor' s own expense. (f. ) The Contractor shall, on request of any person holding a building moving permit issued by the City, temporarily raise or lower its lines to permit the moving of the building. ' The expenses of such temporary removal shall be paid by the person requesting the same and the Contractor shall have the authority to require such paymelnt in advance.. (g. ) The Contractor shall have the authority to trim - trees upon and overhanging all public streets, alleys, ease- ments, sidewalks, and public places in the City so as to 7. fr � I (L prevent the branches of said tries from coming into contact i with the facilities of the Contractor. (h. ) All poles, lines, structures and other facilities of the Contractor in, on, over and under the streets, sidewalk , alleys, easements and public grounds or places of the City shall be kept by the Contractorat all times in a safe and substantial condition. (i. ) The construction, maintenance and operation of • the system for which this franchise is granted shall be done in conformance with the rules and regulations of. the FCC as the same presently exist or as the same may be hereafter changed altered or deopptted,.= That use of the system for any purpose other than provided in his Ordinance is prohibited. Section 9. System and Capabilities. (a. ) The system of the Contractor shall be capable of delivering all NTSC color an monochrome signals to stan- dard EIA Television receivers both monochrome and color and FM receivers without modifications or other attachments. (b. ) The - system design and the signal-to-noise ratio to the individual trunk line amplifiers shall be. such that th signal-to-noise ratio as measured between any two points in. the system on the trunk line utilizing a Model 704-B Field Strength Meter, shall be not less than 44 db. The hum I modulation of the picture signal observed.. at any --point throug - out the system shall be less than 3%. I (c. ) Cross channel inter-modulation components shall be such that no visible ,components shall appear on a blank white screen on any channel of the system with all other channels operating with modulation of their rated levels. 8. (d. ) The echo or ghost content in the received picure over the transportation system shall be no more annoying than a single well displaced video echo 35 db down. The echo or ghost content of the feeder lines shall be no more annoying than a single well displaced video echo 25 db down without any taps on the line. (e. ) The peak-to—valley response of any individual tru k line amplifier shall not be more than plus or minus 1/4 db per unit. (f. ) The frequency response of the overall trunk line shall not vary more than N/9; N-being the number of amplifiers, in cascade across the entire band.. (54 MC to 220 MC). The minimum level of 25 dbj shall be maintained at the end of all feeder lines. This level is computed using an attenuation factor of 1.6 db per 100 feet of cable at Channel 13 with ambien.t temperature of 70 degrees F. This decible level shall . be measured without any taps on the line. 'b" dbj is equal to 1,000 microvolts. The Automatic Gain Control circuitry shall be capable of holding the output level o.f an qmplifier within 1 db with a 6 db change on the imput. Section 10. Annual Certification. On each anniversary date of this Franchise, the Con- tractor shall furnish the City with a certification by a com- petent independent engineer that the CATV system has been in- spected and properly maintained during the previous 12 months in accordance with the specifications contained herein. This shall be done at the expense of the Contractor. 9. I � Section 11. Rates — Rate Discrimination Prohibition. Contractor is hereby authorized to make the following charges to customers using the system as follows : Installation charge, $10.00 Monthly service charge, $5.00 Second connection service charge, $1.00 . Commercial outlet (over 15 outlets), 50g The Contractor shall not as to rates, charges, service facilities, rules, regulations or. in any other respect make o grant any preference or advantage to any person nor subject any person to any prejudice or disadvantage; provided, how— ever, this shall not be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification shall be entitled, providing the same, shall .,have the prior approval of the City Council obtained in open meeting after notice being published of the proposed rate schedule at least fiftee I (15) days prior to the announced open meeting. The Contracto may,. for good cause shown and after thirty (30) days written notice to the City Council, apply for an increase in rates, which may be granted in the discretion of the City Council after notice has been published of the proposed rate schedule at least fifteen (15) days prior to the announced public hearing. Nothing contained in the foregoing rates or service charges shall be deemed to prohibit the Contractor to reduce rates on a nondiscriminatory basis. The Contractor may not require a customer to continue to receive or to pay for the service of the Contractor any longer than the customer desires. Section 12. Jurisdiction. The City and the Contractor agree that if ,jurisdiction of CATV systems is delegated to the FCC by law, then those rules and regulations as may become. applicable shall super- 10. sede any of the provisions of this agreement but shall not to the extent permitted by law affect the validity of this Fran- chise and agreement. In .that event the City shall not impose further restrictions -or charges on the Contractor than those set forth in this agreement. Section 13. Community Service Channel and Service. (a. ) The Contractor shall provide community antenna service without installation or monthly service charge to all public, private and parochial schools, all public libraries, city owned recreational center buildings, city hall, city police stations, city fire stations, public works buildings and any other buildings owned by the City and used by the City for municipal services, providing such installations are within the city limits and are specifically requested by 'thy ''Gounc-. l (b. ) The Contractor shall provide local service channel, local weather information and time, plus FM background music. Upon direction and approval by the City Council the Contracto also agrees that such channel my be used by the Civil Defense, Police, Fire and other community departments., associations or bodies which are designated by ,the .C"ounil as serving the community interest and necessity. The Contractor shall provide time on this channel for the broadcasting of local news and information, instruction or ad ice on the part of these or- ganizations in the public interest, provided each broadcast is requested and authorized by the City Council. Also in the event the Contractor desires to broadcast programs or message on behalf of these organizations on this channel, the Contrac or shall do so only with the permission and authorization of the City Council. The time, type, kind and the content of each 11. broadcast of this local channel shall be governed by and be entirely within the jurisdiction of the City Council. The Contractor however shall not be required to broadcast any thing which fails to adhere to the television code of the National Association of Broadcasters or which in the opinion of the Contractor, may prove libelous or slanderous or which might give rise to some suit or action or liability. The service of this community local channel shall be provided solely at the Contractor' s cost and without cost or expense of any kind or nature whatsoever to the City or the organiza- tions involved in such broadcast. Section 14. City Authorized To Make Additional Ordinances and Provisions. The right is hereby reserved to the City to adopt, an addition to the provisions herein contained and the existing applicable ordinances, such additional ordinances as it shall find necessary in the exercise of the police power, provided that such regulations shall not be in conflict with the right g g herein granted and not in conflict with the laws of the State of Florida or the United States of America. Section 15. Effective Date and Term. I I This Franchise shall take effect and be in full force from and after the final passage of this ordinance granting this Franchise, subject however to the acceptance by the Con- tractor as herein provided, and said Franchise shall continue in full force and effect for a 'term of fifteen (15) years from the date of the final passage of this ordinance upon the terms and conditions as herein set forth. At the expiration of the term of this Franchise or upon the cancellation or for- 12. feiture of this Franchise the City shall have the right to purchase all, of the property used under the terms of this Franchise or such part thereof as the City may desire to purchase at a valuation of the property real and personal desired which valuation unless the parties •can agree thereto shall be fised in. the manner following : The City shall select one arbitrator, the Contractor shall select one arbitrator and thetwo arbitrators shall select a third arbitrator and the finding of the majority of the three arbitrators shall be conclusive on both parties. In the event the Contractor shall fail to appoint an arbi- trator within five (5) days after receiving written notice from the City to do so, the City shall appoint a qualified arbitrator who shall determine the valuation of such property real and personal of the Contractor. Section 16. Forfeiture of Franchise. If the Contractor shouldviolate any of the terms, conditions or provisions of this 0rdi'n:anc'e or if the Contracto ,should fail to comply with any reasonable provision of any ordinance of the City regulation the use by the Contractor of the streets, alleys, easements or public ways of the City or should the Contractor continue to violate the same for a period of sixty (60) days after', the Contractor shall have been notified in writing by the Council to desist from such 'violation so specified, then the Contractor shall be deemed to have forfeited and annulled and shall thereby forfeit and annul all rights and privileges granted by this franchise ordinance. The Contractor may, however, by; filing a written notice with the City Clerk, within five (5) days of such official Council action which directs cancellation of the franchise, suspend and stay the effectiveness of cancellation providing the notice 13. sets. forth that the Contractor intends to proceed in the -appropriate court of Pasco County for an appropriate relief, in which case the appropriate question of whether the Con- tractor is in violation shall be tried by court or jury as prescribed by law. Such - action must be brought by the Con- tractor within ten (10) d10 a s after the notice is delivered y i to the Council. If the Contractor is found to be in viola- tion, the action of the Council shall become final subject to the order. of the court and if the. Contractor is adjudged no in violation, then' proceeding of the Council shall be null and void. The prevailing party in the court action shall be en- titled to costs of the action and reasonable attorneys' fees. Section ' 17. Voluntary Cancellation of Franchise. (a. ) The Contractor may surrender this Franchise at any time upon filing with the City Clerk of' theCity a written notice of its intention to do so at least six (6) months before the surrender date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations duties and liabilities of the Contractor shall terminate except the Contractor, shall be liable and its bonds an shall be liable and responsible for the indemnification of th City against damages, loss, action, suits, liabilities or obl '- I gations arising out of the Contractor' s exe-rcise of this Franchise. (b. ) All of this Franchise may be revoked and cancelled •by the Council of the City if the Contractor shall not within a period of eighteen (18) months from the date of the final adoption of this aforementioned ordinance have commenced the installation of such CATV system, and have a minimum of . 100 subscribers connected and receiving service. 14. Section 18. Construction. All the rights and privileges and all of the obligations, duties and liabilities created by this Ordinance shall pass to and be binding upon the successors of the City and the suc- cessors and assigns of the Contractor and the same shall not be assigned or transferred without the written approval of the City Council which may not be unreasonably withheld. Should the Contractor solicit and collect the connection charge from any subscriber prior to the time service is provided on the CATV system on twelve (12) channels, the Contractor shall post a bond with surety of a surety company authorized to do business in the State of Florida, conditioned upon the .Con- tractor refunding to any subscriber the amount paid by such subscriber for his initial connection charge, such amount to be reduced monthly on the basis of 1/24th of the initial connection charge per month beginning when the charge is paid. The amount of such bond shall not exceed the sum of Fifteen Thousand Dollars ($15, 000.00) and such bond shall not be required in any amount for any purpose after the expiratio of two (2) years. fromthe receipt by the Contractor of the first initial connection charge and provided, further, that in lieu of the surety hereinabolve provided, the Contractor may make such bond without surety and it may pledge as securi y the deposited funds of the Contractor in any bank in the City which deposit shall at all times equal the total potential liability of the Contractor under the terms. of the bond, not exceeding, however, the total sum of $15,000.00. 15,. Section 19. Consideration. In the consideration for the granting of this Franchise { and the consideration which the Contractor shall pay for the granting of this Franchise shall be as follows : (a. ) Forty Five Hundred Dollars ($4, 500.00) within fifteen (15) days after this franchise agreement becomes effec tive and a like sum of $4, 500.00 per year or 6% of the yearly gross revenue, whichever is greltor, for the first five (5) years of this Franchise. (b.. ) For the sixth through the tenth year of 'the I ` franchise period, Seventy Five Hundred Dollars ($7,500..00) per year or 7% of the yearly gross revenue, whichever is greater. (c. ) From the tenth and beyond, Ten Thousand Five Hundred Dollars ($10,500.00) per year or 8% of the yearly gross revenue, whichever is greater, excluding from gross receipts any income derived from installation charges by the Contractor for connecting its community antenna television system to the user. The above stated minimum guarantee shall commence not later than six (6) months after the date of the first attachment made to the poles of the electrical system or with the connection of the first subscriber, whichever is first. During the period between the award .of the franchise and the effective date of the minimum guarantee, the Contract r shall pay to the City the sum o,f $25.00 per month. All pay- ments shall be paid semi-annually on the first day of January and July and shall be accompanied by a statement of gross revenue derived by the Contractor from the gross revenue as. set forth, excluding from the gross revenue any income derived 16� I � � by the Contractor from installation charges to the user; such statement to be certified as to the correctness by a Certified Public Accountant licensed to practice in the State of Florida. The franchise payments herein provided for shall be in addi- tion to and not in lieu of business or occupation licenses or taxes and shall be in addition. to and not in lieu of ad valorem taxes assessed with respect to real o.r personal property of the Contractor by the City. All of the provisions of the proposal of the Contractor and Tall the promises orally made by the Contractor in open meetiI� g shall also be considered as I part and partial consideration for this- franchise. Section 20. Special Agreement. As a condition of this franchise the Contractor agrees that it will not engage in the business of repair of televisi n receivers owned by its subscribers or will it be responsible for the operating conditions of, said receivers. Any service furnished by the Contractor to the subscriber shall terminate at the point of connection of the Contractor' s facilities to the subscriber' s receiver. Section 21. Effective Date. Contractor shall have days after final passage of this Ordinance granting a franchise within which to file g 9 with the City Clerk of the City a written acceptance of this Ordinance and the franchise herein granted, agreeing that it ..will comply with all the provisions and conditions thereof and it will refrain from doing all things prohibited by •said Ordinance. Failure to file said written acceptance within the period of time specified shall render this Ordinance and the Franchise granted, void. 17! I ' Section 22. Channels to be Furnished. The Contractor agrees to ; furnish a quality of recep- tion as herein described, on the following channels, subject to FCC approval : Channel 2 - WESH - Dayto6a-Orlando - NBC Channel 3 - WEDU - Tampa - Educational Channel Channel 4 - WSUN — Tampa — Independent Channel 38 UHF _ Channel 5 - WMFE - Orlando - Educational .Channel 24 Channel 6 - WDBO - Orlando - CBS Channel 7 - Local Educational - FM Stereo Music Channel Channel 8 — WFLA — Tampa — NBC 1 Channel 9 — WFTV — Orlando — ABC Channel 10 — WLCY — St. Petersburg — ABC Channel 11 .— WDCF — Local Community Origination Channe — Time — Weather Channel 12 — WTOG — Tampa — Channel 44 UHF — . Independe t Channel. 13 '- WTVT - Tampa - CBS The Contractor also agrees to charge the fees g as set forth in his proposal, subject to the nondiscriminatory provisions of this ordinance, as hereinaboveiset forth. All the provisions of said proposal shall be deemed incorporated in and a part of the agreements of the Contractor to the same extent as though set out herein in laec verba. Section 23. Option to Renew. An option for renewal, for an additional 15 years unde terms and conditions mutually agreeable to both parties, may be exercised by the Contractor giving the City notice in writ ng of its election., to exercise this option, which notice shall be given not less than one (1) year nor more than two (2) . years prior to the expiration of the term of this franchise. 18: Section 24. Savings Clause. If any section, subsection, sentence, clause, phrase or portion of this franchise agreement is for any reason held invalid or unconsitutional, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof. i A The foregoing Ordinance No. _ 9 was read and passed on its first reading by the City Council of the City of Zephyr— hills, Florida, on the �g ^ day of , 1970. Pi�esi ent of Cit//Counci Attest : / - ity Clerk (/ The foregoing Ordinance No. was read and passed on its second reading by the City Council : of the City of -�y Zephyrhills, Florida, on the ' day of 1970. President of City /Il uncil Attest : ty Clerk l/ / 9�The foregoing Ordinance No. was read and passed on its third reading by the City Council of the City of Zephyrhills, Florida, on the % day of ; 1970. President of City Co,G'ncil Attest: ,i City Clerk 7 The foregoing Ordinance No. approved by me this da of %" "�? ci—V 1970. Y , 19. Mayor The above and foregoing Ordinance and Franchise is hereby accepted, and filed , pursuant , to its terms with the City Council of Zephyrhills , Florida , PASCO COUNTY CABLEVISION COMPANY, LTD. I By! General Partner Dated: , 1970 fi ' I . i 20 . THIS IS TO CERTIFY THAT ORDINANCE NO. 194 AS BEEN POSTED IN TWO PUBLIC PLACES, NAMELY, THE CITY HALL PND THE U. S. POST OFFICE FOR A PERIOD OF FIFTEEN DAYS. THE RDINANCE WAS POSTED. IN THE CITY HALL AND U. S. POST OFFICE ON Sept. 15 , 19 7O AND REMAINED POSTED IN SAID CITY HALL AND U. S. POST OFFICE UNTIL Oct. 9 19_70 A RK HILLSI FLORIDA. M i