An Ordinance of the City of Palm Bay, Brevard County, Florida, Granting a Franchise to Charter Communications, Inc., Its Successors and Assigns, to Build, Construct, Operate and Maintain a Community Television System in the City, Providing Conditions; Providing for an Effective Date.
Be It Enacted by the City of Palm Bay, Brevard County, Florida, as follows:
Section 1.
This Ordinance shall be known and may be cited as the “Charter Communications Cable TV Franchise Ordinance.”
Section 2.
For the purpose of this Ordinance, 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 include the singular, and vice versa. The word “shall” is always mandatory:
A. City is the City of Palm Bay, Florida, a municipal corporation under the laws of the State of Florida.
B. Company is Falcon Cable TV and it is the grantee of rights under this franchise.
C. Council is the City Council of Palm Bay, Florida.
D. Person is any person, firm, partnership, association, company or organization of any kind.
E. Agency means the person, department or agency that may be designated by the City to act for it in administrative matters relating to cable television.
Section 3.
There is hereby granted by the City, to the Company the right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over and under (any and all cables to be constructed under any paved street or alley, or underground pipe or conduit and under no circumstances shall any cable be constructed under a paved street, alley or other public way by digging or excavating from the surface) the streets, alleys, easements, public places now laid out or dedicated and all extensions thereof and additions thereto in the City, poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the City, a community television system for the transmission of television and other signals either separately or upon or in conjunction with any public utility maintaining the same in the City with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing this franchise and grant shall and does hereby include the right in, over, under and upon 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 community television system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections. The right herein granted for purposes herein set forth shall not be exclusive and the City reserves the right to grant a similar use of said streets, alleys, easements, public ways and places to any person at any time during the period of this franchise.
Section 4.
The Company shall at all times during the life of this franchise be subject to all exercise of the police power of the City and to such regulations as the City shall hereafter by ordinance provide. The Company shall save the City harmless from all loss sustained by the City on account of any suit, judgement, execution, claims, or demand whatsoever resulting either from any court ruling or alleged fault or from negligence on the part of the Company in the construction, operation or maintenance of its television system in the City and for this purpose the Company 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 to be carried for liability due to damage to property shall be two hundred thousand dollars ($200,000.00) as to any one (1) accident and against liability due to injury to or death of persons, two hundred thousand dollars ($200,000.00) as to any one (1) person and five hundred thousand dollars ($500,000.00) as to any one (1) accident or incident. The City shall notify the Company 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 incident or negligence as aforesaid on the part of the Company. The Company shall have the City named as an insured party on the insurance policy required hereunder.
Section 5.
The Company shall maintain and operate its system and render efficient service during the term of this franchise and according to Federal Communication Commission regulations and as may presently or hereafter be required by the City. It is also specifically required that the Company both obtains certificate of compliance with all existing regulations of the Federal Communications Commission prior to commencing operations and offer evidence to the City, from time to time, as the City may deem appropriate, of continued compliance with regulations established by the Federal Communications Commission in the future. The Company shall provide the City with copies of all amendments, filing and reports pertaining to the rules of the Federal Communications Commission. The City may consider all such amendments at public hearing and may incorporate the same into this franchise.
Section 6.
A. All structures, lines and equipment erected by the Company within the City shall be so located as to cause no interference with the proper use of streets, alleys, easements and other public ways and places and to minimize interference with the rights or reasonable convenience of property owners and the Company shall comply with all ordinances of the City now or hereafter in force. Existing poles, posts and other such structures of the City or of any telephone company or other public utility that may be available to the Company for leasing or licensing shall be used to the extent practicable in order to minimize interference with travel. No new poles shall be erected by the Company without the consent of the City Manager.
B. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Company shall at its own cost and expense and in a manner approved by the City Council of the City replace and restore all paving, sidewalk, driveway or surface so disturbed in as good condition as before said work was commenced, and to preserve them in this condition for one (1) year. The Company will post bond in the amount of twenty-one thousand dollars ($21,000.00) with the City for its faithful performance of the conditions of this paragraph, said bond to be approved by the City Council.
C. In the event that at any time during the period of this franchise the City shall elect to alter or change any street, alley, easement or other public way requiring the relocation of the facilities of the Company, then in such event the Company upon notice by the City, shall remove, relay and relocate the same at its own expense.
D. The Company 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 buildings. The expense of such temporary removal shall be paid by the person requesting the same and the Company shall have the authority to require such payment in advance.
E. The Company shall have the authority to trim trees overhanging streets, easements, sidewalks, alleys, and public places of the City so as to prevent the branches of such trees from coming into contact with the facilities of the Company, but only with the approval of the City Manager/designee.
F. All poles, lines, structures and other facilities of the Company, in, on, over and under the streets, sidewalks, alleys, easements and public grounds or places of the City shall be kept by the Company at all times in a safe and substantial condition.
Section 7.
The Company shall not as to rates, charges, service facilities, rules, regulations, or in any other respect make or grant any preference or advantage to any person nor subject any person to prejudice or disadvantages; provided, however, this shall not be deemed to prohibit the establishment of a graduate scale of charges and classified rate schedules to which any customer coming within such classification shall be entitled. Rates shall be the same for such classifications of customers as are serviced from similar or comparable facilities. The City shall have the right to approve the rates that the Company shall charge subscribers, subject to Section 8 supra, for installation of equipment and regular subscriber services and the Company shall make no increases in rates, except for Pay TV rates, to subscribers in excess of five percent (5%) within any one (1) calendar year period as authorized by the City after public proceedings or as may be required by the Federal Communications Commission.
Section 8.
The right is hereby reserved to the City to adopt such additional ordinances as it shall find necessary in the exercise of its police power to regulate the Company.
The right is hereby reserved, to the City to adopt, change and amend this franchise ordinance, to grant to the City to the power and ability to regulate, change, or set rates that the franchisee can charge and to adopt rules and regulations and to otherwise regulate all areas of operation and rates of the franchise as may be permissible and in accordance with any state or federal law, rule or regulation.
Section 9.
The franchise shall take effect and be in full force from and after final passage hereof, subject to acceptance by the Company as herein provided and the same shall continue in full force and effect for a term of fifteen (15) years beginning with the date of such acceptance; and the City herewith grants to the Company the right, option and privilege to renew this franchise for an additional term of fifteen (15) years upon terms and conditions to then be agreed upon. The option for renewal may be exercised by the Company giving the City notice in writing of its election to exercise the 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; provided, however, that such extension shall be granted by the City only after a public hearing with due notice to the public. Should the Company violate any of the terms, conditions and provisions of this franchise, other than those set forth in the preceding paragraph of this section, or should the Company either continue such violation for a period of thirty (30) days after the Company has been notified in writing by the City to cease and desist from such violation or should it fail to comply with any provision of any ordinance of the City regulating the use by the Company of the streets, alleys, easements, or public ways of the City and continue to violate the same for a period of five (5) days after the Company shall have been notified in writing by the City to desist from such violation so specified, the Company shall be deemed to have forfeited and annulled, and shall thereby forfeit and annul all the rights, options, and privileges granted by the Franchise. This forfeiture provision shall not apply to the Bond referred to in Section 6B. herein.
The Company acknowledges that any property it has installed in or on public property shall be considered permanently abandoned and shall become the property of the City, subject to the provisions of any utility joint use agreement, in the event of either the failure to renew the franchise at the expiration of the initial fifteen (15) year term or upon violation of any provisions of this or other sections in this Ordinance.
The Company may surrender this franchise at any time upon filing with the City Clerk of the City a written notice of its intention to so do at least six (6) months before the surrender date. On the surrender date specified in this notice, all of the rights and privileges and all of the obligations, duties and liabilities of the Company shall terminate and the property the Company has installed in or on public property shall be deemed the property of the City as provided in this section.
Section 10.
All of the rights and privileges of all of the obligations, duties and liabilities created by this franchise shall pass to and be binding upon the successors of the City and the successors and assigns of the Company and the same shall not be assigned or transferred without the written approval of the City Council of the City, which will not be unreasonably withheld; provided, however, that this shall not prevent the assignment of the franchise by the Company as security for debt without such approval.
Section 11.
A. Company shall extend the installation of cable, amplifiers, and related equipment throughout the area covered by its franchise as rapidly as practicable, but, in any event, shall:
1. Provide service no more than sixty (60) days after receiving an application for service to every dwelling unit within the franchise area except to the extent that density of homes, adverse terrain, or other factors render making service available impracticable. The Company shall extend cable television service to any building within the City which is located within two hundred (200) feet of any portion of the distribution facilities of the Company existing at the time of the application for service. Such extension shall be made within six (6) months after receipt of a reasonable request for such service.
There shall, however, be no obligation on the part of the Company to extend trunk cable service unless there is a density of at least fifty (50) homes per trunk cable mile in the area of the person making the request for service. The Company shall provide one (1) basic service outlet to all municipal facilities and public schools within the City's franchise area at no cost to the City or school involved; provided, however, that the structure to be served is within two hundred (200) feet of the Company's distribution system.
2. File a map and progress report with the City at the close of each calendar year, showing the exact areas of the City being served by the cable television system and the location and identification of major component parts of the system.
B. Failure on the part of the Company to diligently pursue the foregoing requirements shall be grounds for termination of this franchise pursuant to the terms of Section 9 hereof; provided, however, that the City may in its discretion extend the time for the completion of construction and installation for additional periods in the event the Company, acting in good faith, experiences delays by reasons of circumstances beyond its control.
C. In the event the operation of any part of a cable television system is discontinued for a continuous period of thirty (30) days, or in the event such system has been installed in any public street without complying with the requirements of the Company's franchise, the Company shall promptly, upon being given ten (10) days notice, remove from the streets or public places all such property and poles of such system. Any property which the Company allows to remain in place sixty (60) days after having been notified by the City that it must be removed, shall be considered permanently abandoned and shall become the property of the City subject to the provision of any utility joint use attachment agreement.
D. Upon the failure of the Company to satisfactorily complete any work upon the public streets as may be required by law or the terms of its franchise within the time prescribed by the City, at its option, may cause such work to be done and the Company shall pay to the City the cost hereof within thirty (30) days after receipt of an itemized report.
Section 12.
As a condition of this franchise, the Company agrees that it will not engage in the business or sale or repair of television receivers owned by its subscribers nor will it be responsible for the operating condition of said receivers. Any service furnished by the Company to the subscriber shall terminate at the point of connection of the Company's facilities to the subscriber's receiver.
Section 13.
This ordinance when accepted by the Company shall be and become a valid and binding contract between the City and the Company but this ordinance shall be void unless the Company shall within thirty (30) days after the final passage of this ordinance, file 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 hereof and that it will refrain from doing all things prohibited by this ordinance.
Section 14.
In determining the five percent (5%) of the gross revenue that the Company is required to pay the City, as provided in Section 12 of this agreement, it is agreed and understood that there shall be included only those taxes, licenses, fees, impositions levied or imposed by the City upon the Company in connection with its operation to carry out the purpose of this agreement and only those impositions or taxes by the City upon the property of the Company that is used only and exclusively to carry out the purpose of this agreement. Any other taxes, licenses, or impositions whatsoever, shall not be included in the computation of said five percent (5%) of the gross revenue.
Section 15.
Throughout the life of its franchise, the Company shall:
A. Maintain all parts of its system in good condition and in accordance with standards generally observed by the cable television industry. Sufficient employees shall be retained to provide safe, adequate and prompt service for all of its facilities.
B. Maintain a conveniently located business office and service center to which subscribers may telephone without incurring added message units or toll charges. This office shall be open during all usual business hours, and be so operated that complaints and requests for repairs or adjustments may be received by telephone at any time any television signals are being broadcast.
C. Dispatch personnel to investigate all service complaints and equipment malfunctions within twenty-four (24) hours and strive to resolve such complaints as promptly as possible. Planned interruption of service shall be only for good cause. Insofar as possible, planned service interruptions shall be preceded by notice, be of brief duration, and occur during fringe viewing hours.
D. Maintain a complete list of all complaints received and the measures taken to resolve them in form to be approved by the City. The list shall be available to the City upon request.
E. Permit the City to inspect and test system's technical equipment and facilities upon reasonable twelve (12) to twenty-four (24) hour notice.
F. Responsibility for the administration of any franchise granted hereunder and for the resolution of all complaints against the Company regarding the quality of service, equipment malfunctions, and similar matters, may be delegated by the City, if it so chooses, to adjust, settle or compromise any controversy arising from operations of the Company either on behalf of the City, the Company, or any subscriber, in accordance with the best interest of the public; provided that any person aggrieved by a decision may appeal the matter to the City Manager for hearing and determination. The City Manager may accept, reject, or modify the decision and may adjust, settle, or compromise any controversy arising from the operations of the Company under the franchise granted pursuant to this ordinance. No adjustment, settlement, or compromise shall be contrary to the provisions of this ordinance or of the franchise agreement, and the City Manager, in the adjustment, settlement, or compromise of any controversy shall have no right or authority to add to, modify or delete any provision of this ordinance. The Company shall notify subscribers at the time of initial subscription to the system of the procedure for reporting and resolving complaints by delivering to each subscriber a written notice in form approved by the City.
Section 16.
The City shall amend this Ordinance either upon its own motion or upon the application of the Company whenever amendments are necessary either to enable the Company to utilize new developments in television or radio signal transmission which would improve and update cable television service in the franchise area, or to comply with any modifications in the rules of the Federal Communications Commission. Amendments to Federal Communications Commission rules applicable to cable television will be incorporated into this Ordinance within one (1) year of their adoption or at the time of franchise renewal, which ever comes first and the Company shall keep the City advised of any such amendments.
Section 17.
This Ordinance conditionally grants to the Company the authority to operate a cable television system only when the company has furnished the City with the following:
A. A written application to the City;
B. The name, address and form of business of the applicant; addresses and names and occupations of its officers, directors and major stockholders, and the names and addresses of any parent or subsidiary companies.
In addition thereto, new franchise applicants shall furnish the City with the following:
1. A list of all other cable television systems, if any, in which the Company (or any partner or major stockholder of applicant) has a substantial interest, stating the location, approximate number of homes served, and the name and address of the local franchising body.
2. A thorough description of the proposed cable television system to be installed and operated; the manner in which the Company proposes to construct, install, maintain and operate the same; and the extent and manner in which existing or future poles or other facilities of public utility companies will be used in the proposed system, together with a map or maps delineating proposed service areas if the Company proposes to service less than the entire franchise entity.
3. A schedule of proposed rates and charges to all classes of subscribers for both installation and monthly service, and a copy of the proposed service agreement between the applicant and its proposed subscribers.
4. A copy of any contract that may exist between the Company and any public utility providing for the use of such utility's property, such as pole lines or conduits.
5. A statement setting forth all agreements and understandings, whether written, oral, or implied, between the Company and any other person with respect to the proposed franchise or the proposed cable television operation.
6. An estimate of the cost of constructing the Company's proposed system and a financial statement prepared in form satisfactory to the City showing Company's financial status and its financial ability to meet these proposed costs.
7. A sworn statement acknowledging the Company's familiarity with the eligibility under the provisions of this Ordinance and the rules of the Federal Communications Commission and its intention to abide by same.
8. Failure of the Company to provide such information and material may be deemed by the City as a refusal to accept the franchise granted under this Ordinance.
Section 18.
All ordinances or parts of ordinances in conflict herewith are hereby repealed and all ordinances or parts of ordinances not in conflict herewith are hereby continued in full force and effect.
Section 19.
It is the intention of both the Mayor and the City Council of the City of Palm Bay that the provisions of this ordinance shall become and be made a part of the City of Palm Bay Code and the sections of this ordinance may and are to be renumbered to accomplish such intention.
Section 20.
If any portion, clause, phrase sentence, or classification of this ordinance is held or declared to be either unconstitutional, invalid, inapplicable, inoperative, or void, such declaration shall not be construed to affect other portions of the ordinance; it is hereby declared to be the express opinion of the Mayor and City Council of the City of Palm Bay that any such unconstitutional, invalid, inapplicable, inoperative, or void portion or portions of this ordinance did not induce its passage, and that without the inclusion of any such portion or portions of this ordinance the Mayor and Council would have enacted the valid constitutional portions thereof.
Section 21.
This Ordinance shall take effect immediately upon its passage.
Section 22.
Read in full at meeting number 92-10 held on March 19, 1992, and read in title only and passed at meeting number 92-12 held on April 2, 1992.
('74 Code, App. B, Art. I, Div. 6) (Ord. 92-14, passed 4-2-92; Am. Res. 2000-22, passed 7-6-00; Am. Ord. 2002-18, passed 2-21-02)
Editor's note:
Resolution 2000-22 approved the transfer of the community television system franchise or rights thereunder to Charter Communications, Inc., effective upon the consummation of the purchase of the assets of Falcon Cable Media, L.P. All terms and conditions of the franchise shall remain in full force and effect as to the franchise with Falcon Cable Media, L.P.