(1) Administration. The city manager or its designee is responsible for enforcing and administering this chapter, and the city manager or its designee is authorized to give any notice required by law or under any franchise agreement, including by way of example and not limitation, a notice required under 47 USC 626. The city manager or its designee is also authorized to seek information from any cable or open video system operator, to establish forms for submission of applications and other information, and to take all other actions necessary or appropriate to the administration of this chapter. Franchises may only be issued or revoked by action of the city commission.
(2) Application for a franchise.
(A) An application must be filed for an initial franchise or license; for a transfer; or for renewal of a franchise or license. Each entity that is required to hold a franchise or license must submit an application therefore to the financial management department or as otherwise designated by the city, in accordance with the requirements of Articles IIB and IIC. To be accepted for filing, an original and six (6) copies of a complete application must be submitted to the purchasing division, financial management department. All applications shall be available for public inspection. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
(B) An application may be filed by any person on that person's own initiative or in response to a request for proposals. The purchasing administrator is authorized to issue requests for proposals from time to time.
(C) Every application shall be accompanied by a nonrefundable fee in amounts established from time to time by the city commission by resolution.
(D) An applicant that is awarded a franchise or license shall pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise or license pursuant to the provisions of this article. Such payment shall be made within thirty (30) calendar days after the city furnishes the franchisee or licensee with a written statement of such expenses by delivery of same to the city clerk.
(E) Notwithstanding any other provision of this chapter, pledges in trust or mortgages of the assets of a franchised or licensed cable or open video system to secure the construction, operation or repair of the system may be made without application and without the city's prior consent; except that no such arrangement may be made if it would in any respect under any condition prevent the cable or open video system operator or any successor from complying with the franchise or license and applicable law, nor may any such arrangement permit a third party to succeed to the interest of the operator, or to own or control the cable or open video system without the prior consent of the city. Any mortgage, pledge or lease shall be subject and subordinate to the rights of the city under this chapter or other applicable law.
(3) Minimum contents of every franchise or license. In addition to satisfying the other applicable requirements of Article II, every franchise agreement or license for a cable or open video system shall contain the following provisions:
(A) The franchise agreement or license shall provide that neither the granting of any franchise or license, or any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the city as may exist at the time the franchise is issued or thereafter be obtained.
(B) The franchise agreement or license shall only authorize occupancy of the right-of-way to provide the services and for the purposes described in the franchise or license.
(C) A franchise or license shall be a privilege that is held in the public trust and personal to the original franchisee. The franchise agreement or license shall ensure that no transfer of the franchise or license may occur, directly or indirectly, without the prior consent of the city; except as contemplated by Section 5-11(2)(E).
(D) The franchise agreement or license shall ensure that any person placing a cable or open video system in the right-of-way will not discriminate in hiring, in contracting, or in the provision of services.
(E) The franchise agreement or license shall contain appropriate provisions for enforcement, compensation, and protection of the public, consistent with the other provisions of this chapter.
(F) The franchise or license shall be for a specified term, set forth in the franchise agreement or license. No franchise issued under this chapter shall be for a term of longer than ten (10) years; no license issued under this chapter shall be for a term of longer than five (5) years.
(4) Penalties. Any person who violates any provision of this chapter shall be fined for each day the violation continues in accordance with Chapter 162 of the 1996 Florida Statutes, as amended.
(5) Revocation, reduction of term, or forfeiture of franchise or license.
(A) Licenses shall be revocable at the will of the city commission.
(B) Where, after notice and providing the franchisee an opportunity to be heard (if such opportunity is timely requested by a franchisee), the city finds that the facility is being operated in violation of this chapter or substantial violation of the terms of the franchise agreement, the city may make an appropriate reduction in the remaining term of the franchise or to revoke the franchise. The city manager is authorized to establish and conduct a proceeding that comports with the requirements of this Section 5-11(5)(B), and to issue a recommended decision, but any such decision may be appealed to the city commission. Any appeal must be filed within thirty (30) calendar days of the decision of the city manager or it shall be deemed waived. Notwithstanding the foregoing, the franchise may not be revoked unless the franchisee:
1. Was given notice of the default;
2. Was given thirty (30) calendar days to cure the default; and
3. Failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in thirty (30) calendar days.
The required notice may be given before the city conducts the proceeding required by this section. No opportunity to cure is required for repeated violations, and fraud shall be deemed incurable.
(C) Notwithstanding the foregoing, the city may declare a franchise forfeited where the franchisee:
1. Fails to begin to exercise its rights under the franchise within a period specified in the franchise agreement;
2. Stops providing service it is required to provide in the franchise;
3. Without the prior consent of the city, transfers the franchise; or
4. Fails to pay any fees required hereunder, including, but not limited to, application fees, permit fees, or franchise fees.
(D) The city shall give a franchisee thirty (30) calendar days notice of an intent to declare a franchise forfeited, and shall provide the franchisee an opportunity to show cause why the franchise should not be forfeited.
(E) Notwithstanding the foregoing, any franchise may, at the option of the city following a public hearing before the city commission, be revoked one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless within that one hundred twenty (120) calendar day period:
1. Such assignment, receivership or trusteeship has been vacated; or
2. Such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise agreement and has executed an agreement, approved by a court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise agreement.
(F) Notwithstanding the foregoing, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the city may revoke the franchise, following a public hearing before the city commission, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges of the franchise will be revoked and will terminate thirty (30) calendar days after serving such notice, unless:
1. The city has approved the transfer of the franchise to the successful bidder; and
2. The successful bidder has coven- anted and agreed with the city to assume and be bound by the terms and conditions of the franchise agreement and this chapter.
(6) Effect of termination or forfeiture. Upon termination or forfeiture of a license or franchise, whether by action of the city as provided above, or by passage of time, the franchisee or licensee shall be obligated to cease using the cable or open video system for the purposes authorized by the franchise. The city may either take possession of some or all of the licensee's or franchisee's facilities in the public rights-of-way after furnishing the cable or open video system operator with written notice and granting the cable or open video system operator a reasonable period of time, but in no event more than thirty (30) calendar days, to remove same, or require the licensee or franchisee or its bonding company to remove some or all of the licensee's or franchisee's facilities from the public rights-of-way and restore the public rights- of-way to their proper condition. Should the franchisee or licensee neglect, refuse, or fail to remove such facility, the city may remove the facility at the expense of the franchisee or licensee. The obligation of the licensee or franchisee to remove shall survive the termination of the franchise or license for a period of two (2) years. Provided that the city may not take possession of, or require the franchisee or licensee to remove, any facilities that are used to provide another service for which the franchisee holds a valid franchise or license issued by the city.
(7) Remedies cumulative. All remedies under this chapter and any franchise agreement are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a cable or open video system operator of its obligations to comply with its franchise. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit a cable or open video system operator's duty to indemnify the city in any way; nor shall such recovery relieve a cable or open video system operator of its obligations under a franchise, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have. Nothing herein shall be read to authorize the double-recovery of damages.
(8) Access to books and records.
(A) Each cable or open video system operator shall, upon thirty (30) calendar days, if reasonably possible, but in no event less than five (5) business days written notice, provide the city access to all books and records related to the construction, operation, or repair of the cable or open video system so that the city may inspect these books and records. Any and all non-proprietary or non-confidential books and records may be copied by the city. The operators' obligation includes the obligation to produce all books and records related to revenues derived from the operation of the cable or open video system. An operator is responsible for obtaining or maintaining the necessary possession or control of all books and records related to the construction, operation or repair of the cable or open video system, so that it can produce the documents upon request. Books and records must be maintained for a period of five (5) years, except that any record that is a public record must be maintained for the period required by state law; and a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials.
(B) For purposes of this chapter, the terms "books and records" shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the city at City Hall, except by agreement or pursuant to Section 5-11(8)(C).
(C) If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a cable or open video system operator may request that the inspection take place at some other location mutually agreed to by the city and the operator, provided that the operator must make necessary arrangements for copying documents selected by the city after its review; and the operator must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee.
(D) Without limiting the foregoing, the operator of a cable or open video system shall provide the city the following within ten (10) calendar days of their receipt or (in the case of documents created by the operator or its affiliate) filing:
1. Notices of deficiency or forfeiture related to the operation of the cable or open video system, and
2. Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.
(9) Retention of records; relation to privacy rights. Each cable or open video system operator shall take all reasonable steps required, if any, to ensure that it is able to provide the city all information which must be provided or may be requested under this chapter, a franchise agreement, or applicable law, including by providing appropriate subscriber privacy notices. Each operator shall be responsible for reacting any data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require an operator to violate state or federal law protecting subscriber privacy.
(10) Reports. The city may require operators of a cable or open video system to maintain records, and to prepare reports relevant to determining the compliance of the cable or open video system operator with the terms and conditions of this chapter and a franchise agreement.
(11) Maps. Each cable or open video system operator shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction (as-built) inspection to verify location. The operator of each cable or open video system shall provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the city engineer. New maps shall be promptly submitted to the city when the facility expands or is relocated. Copies of maps shall be provided on disk, in a format specified by the city engineer.
(12) Compliance with laws. Each franchisee shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its franchise.
(13) Reservation of authority. The city may do all things which are necessary and convenient in the exercise of its jurisdiction under this article. The city manager or its designee is hereby authorized and empowered to adjust, settle or compromise any controversy involving performance or charges arising from the operations of any franchisee under this article on behalf of the city. The city commission may accept, reject or modify the decision of the city manager, and the city commission may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any franchisee or from any provision of this article.
(14) No waiver. The failure of the city to insist on timely performance or compliance by any person holding a license or franchise shall not constitute a waiver of the city's right to later insist on timely performance or compliance by that person or any other person holding such a license or franchise.
(15) Ordinance not a contract. The city expressly reserves the right to amend this chapter from time to time in the exercise of its lawful powers. This and any ordinance adopting provisions of this chapter shall not be construed to be a contract.
(Ord. No. 00-31, § 1, 6-20-00; Ord. No. 02-033, § 1, 8-20-02)