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HomeMy WebLinkAboutCity of Tamarac Ordinance O-1969-013ORDINANCE NO. AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO UNIVERSITY VIDEO CORPORATION, ITS SUCCESSORS AND ASSIGNS, TO OPERATE AND MAINTAIN A COMMUNITY ANTENNA TELEVISION SYSTEM IN THE CITY OF TAMARAC, FLORIDA, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR CITY REGULATION AND USE OF THE COMMUNITY ANTENNA SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE FRANCHISE PROVISIONS; CONTAINING CERTAIN PROHIBITIONS; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING A SAVINGS CLAUSE; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: SHORT TITLE. This Ordinance shall be known and may be cited as the "Tamarac Community Antenna Television Franchise Ordinance." SECTION 2: DEFINITIONS. For the purposes of this Ordinance, the following terms, phrases, words, and 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 signular number include the plural number. The word "shah." is always mandatory and not merely directory. (a) ."City" is the City of Tamarac, Florida. (b) "Company" is University Video Corporation, a Florida corporation authorized to do business in the State of Florida and maintaining offices in Fort Lauderdale, Florida, the grantee of rights under this Franchise Ordinance. (c) "Council" is the City Council of Tamarac, Florida. (d) "Person" is any person, firm, partnership, association, corporation, company, or organization of any kind, (e) "System" shall mean the lines, fixtures, equipment, attachments, and all appurtenances thereto which are used in the construction, operation and maintenance of a community and television system for the reception and distribution of television signals and energy, frequency modulated radio signals and non- commercial visual and aural signals which are not otherwise herein prohibited. (f) "Closed corporation" is any corporation which has twenty (20) stockholders or less. SECTION 3: GRANT OF NON-EXCLUSIVE AUTHORITY. (a) 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 the streets, alleys, easements, swale areas, public ways and public places now laid out or dedicated, and all ex- tensions thereof, and additions thereto, in the City, poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in the City of a CATV system for the interception, sale and distribution of television and radio signals; provided, however, Company shall, in all areas of the City where utilities, such as, without limitation, telephone, gas and electric, are installed underground, shall also install its CATV system underground. (b) The right to use and occupy said streets, alleys, easements, swale areas, public ways and places for the purpose 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. (c) The Company shall have the right to enter into arrangements for the attachment onto and use of facilities owned and operated by public utilities operating within the City, whereby the Company shall strictly comply with the terms, provisions and restrictions of said agreements, and copies - 2 - of all agreements made with such public utilities operating within the City shall be provided to the City upon request for the same. (d) The rights herein granted shall extend to any area annexed to the City and the Company shall be bound by the same rules and regulations as to such area as otherwise herein or hereafter provided. SECTION 4: COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. The Company shall, at all times during the life of this Franchise Ordinance, be subject to all lawful exercise of the police power by the City and to such reasonable regulation as the City shall hereafter by resolution or ordinance provide. The construction, operation, and maintenance of the system by the Company shall be in full compliance with the National Electric Code in effect at time franchise is granted, and in full com- pliance with all other Federal Communications Commission, the City, the State of Florida, and the United States Government. Copies of all petitions, applications and communications submitted by Company to the Federal Communications Commission, Securities and Exchange Commission or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the CATV system operation authorized pursuant to this franchise shall be provided to the City upon request for the same. Programs carried by the Company shall be carried in their entirety as received, with announcements and advertisements and without additions. SECTION 5: COMPANY LIABILITY AND INDEMNIFICATION. (a) It is expressly understood and agreed by and between the Company and the City that the Company shall save the City harmless from all loss or damage sustained by the City as a result of granting this franchise, and the Company shall save the City harmless from any and all liability arising out of this franchise, the granting of the same or the operation hereunder. (b) The Company shall pay, and by its a.ccpptance of this franchise, specifically agrees that it will pay all expenses incurred by the City in defending - 3 - itself with regard to the matter set forth in subparagraph (a) above, including, without limitation, all out-of-pocket expenses, and reasonable attorneys' fees, whether the same be incurred prior to litigation or during litigation on either the trial or any appellate level through which the litigation may proceed. (c) The Company shall maintain, and by its acceptance of this franchise specifically agrees that it will maintain throughout the term of this franchise, liability insurance insuring the City and the Company in the minimum amounts of: (1) $250,000.00 for bodily injury or death to any one person, within the limit, however of $500,000.00 for bodily injury or death resulting from any one accident or occurrence; (2) $100,000.00 for property damage resulting from any one accident or occurrence; (3) $500,000.00 for all other types of liability. (4) The amounts or coverage provided for herein shall be increased to egt.al the amounts of coverage which may be required, from time to time, by the City, of any public utility in the City. (d) WORKMEN'S COMPENSATION COVERAGE. The Company shall also maintain in full force and effect throughout the duration of this Franchise Ordinance sufficient workmen's compensation insurance coverage to adequately and fully protect its agents and em- ployees as required by law. (e) RESIDENT COMPANY AND AGENT. All insurance policies and bonds as are required of the Company in this Franchise Ordinance shall be written by a company or companies authorized and qualified to do business in the State of Florida and shall be serviced through an insurance agent doing business within the City. Certificates of all coverage required shall be promptly filed by the Company with the City. - 4 - SECTION 6: CONDITIONS ON STREET OCCUPANCY .AND SYSTEM CONSTRUCTION. (a) The Company's transmission and distribution system poles, wires, and appurtenances shall be located, erected and maintained so as not to endanger or interfere with the lives of persons, or to inter- fere with new improvements, the City may deem proper to make, or to unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, or other public property, removal of Company property to avoid such interference will be at the Company's expense. (b) Construction and maintenance of the transmission distribution system shall be in accordance with good engineering practice, and at sufficient height to comply with all existing Municipal regulations, ordinances, and State laws so as not to unduly interfere in any manner with the right of the public or individual property owner, and shall not unduly interfere with the travel and use of public places by the public and during the construction, repair, or removal thereof, shall not unreasonably obstruct or impede traffic. (c) In the maintenance and operation of its television transmission and distribution system in the sheets alleys, and other places used by the public, and in the course of any new construction or addition to its facilities, the Company shall proceed so as to cause the least possible inconvenience to the general public; any opening or obstruction in the streets or other public places made by the Company in the course of its operations shall be guarded and protected at all times by the placement of adequate barriers, fences, or boardings, the bounds of which, during the periods of dusk and darkness, shall be clearly designated by red warning lights. (d) That it is the stated intention of the City that all other holders of public licenses and franchises within the limits of the City, shall cooperate with the Company to allow the Company's joint usage of their poles and pole line facilities wherever - 5 - possible, or wherever such usage does not interfere with the normal operation of said poles and pole lines so that a number of new or additional poles constructed by the Company within the City limits 9 may be minimized. Such cooperation shall include the rights for joint usage at reasonable rates and on reasonable terms. (e) The Company shall grant to the City, free of expense, joint use of any and all poles owned by it for any proper municipal purpose acceptable to the Company, insofar as it may be done without unduly interfering with the free use and employment of the Company's own wires and fixtures, and the City shall hold the Company harmless from any and all actions, causes of actions, or damage caused by the placing of the City's wires or appurtenances upon the poles of the Company. Proper regard shall be given to all existing safety rules governing construction and maintenance in effect at the time of construction. (f) The Company shall provide one outlet of cable television service without installation or monthly service charge to all public, private and parochial schools, and municipal buildings speci- fied by the City, within the City, passed by the cable system plant. SECTION 7: CONSTRUCTION APPROVAL BY CITY - CORRECTION OF DEFECTS. The City shall allow and permit the Company to erect any pole, run any line, make any attachment, except in those areas where deed restrictions require cable to be underground. The approval shall be in the form of a permit issued by the City Clerk upon approval of (a) layout maps of the system authorized by this Franchise Ordinance showing plant routing,utility company poles, and any other additional poles to which the television cable system facilities are to be attached and location of all trunk and distribution line amplifiers or (b) true copies of all attachments requests and subsequent approvals made by the Company to Southern Bell Telephone and Telegraph Company and Florida Power and Light Company, if and when such requests become necessary. The City shall have and maintain the right to inspect the construction, operation, and maintenance of the system by the Company to insure the proper performance of the terms of this Franchise Ordinance. - 6 - The Company shall provide the City, at no cost to the City, with a complete set of "as built" plans, showing all portions of the CATV system forthwith upon the completion of any portion thereof, a permit for the construction of which has been issued by the City Clerk. In the event the Company should violate any 0 of the terms of this Franchise Ordinance or any of the rules and regulations as may be from time to,.:time lawfully adopted, the City shall immediately give to the Company thirty (30) days written notice to correct such violation, and in the event the Company does not make such correction within thirty (30) days from the receipt of such written notice, the City may make such correction itself and charge the cost of same to the Company. SECTION 8: PERFORMANCE REQUIREMENTS. (a) The Company shall, in good faith, forthwith proceed with the construction of the CATV system authorized by this Ordinance within One Hundred Eighty (180) days following the approval of this Franchise Ordinance by the City, and the completion of any necessary pole clearances, in areas where the system is not to be constructed underground, and the granting of any federal permits, if applicable. The Company agrees that it will faithfully and diligently pursue the acquisition of all permits or approvals required in order to commence construction within the time set forth herein. (b) The Company shall, within sixty (60) days from the effective date of this Ordinance, furnish a bond to the City in the amount of Twenty-five Thousand ($25,000.00) Dollars, in such form and with such sureties as shall be acceptable to the City, guaranteeing the faithful performance of all of the obligations of this Ordinance. (c) The Company shall make quarterly project progress reports to the City Clerk from the effective date of this Ordinance through the date construction is commenced, with the first such report to be made three (3) months after this Ordinance takes effect. Failure to make the reports required hereby, shall be considered a default for which the guaranteed bond shall be forfeited in total. It is understood and agreed that, the bond provided for above shall - 7 - also guarantee the payment of the franchise fee otherwise provided herein to the City as well as any other monies required to be paid by the Company to the City for any reason whatsoever. Said bond shall be maintained in full force and effect, and evidence thereof shall be provided, during the entire term of this franchise. (d) Company shall not engage in, or use its facilities for, the business of pay television, unless the same is duly authorized by law and does not inter- fere with or diminish any of the CATV services which the Company is obligated to provide the users of the system under this franchise. (e) COLOR T.V. The facilities used by the Company shall be capable of distributing color T.V. signals and when the signals the Company distributes are received in color, they shall be distributed in color. RFCTiON 9: RATES TO CUSTOMERS. The Company's initial charge for installation of single residence television cable connection shall not exceed Fourteen Dollars and ninety-five cents ($14.95) and the service charge for a single residential television cable connection shall be Four Dollars and Ninety-five cents ($4.95) per month, except in those areas governed by deed restrictions, in which cases the amounts charged will be those specified in said restrictions. Any increase in these rates would bear the Municipality's approval. Installation may be disconnected by the Company if subscriber attempts to run more than one set at any one time on each installation for which no additional service fees are being paid, or permits anyone else to do same; except that any television serviceman may disconnect or reconnect the terminal unit on the rear of the receiver for the purpose of repairing or replacing receiver equipment at the request of the customer. The service to be offered by the Company shall be on a solely voluntary basis on the part of the subscriber in such areas that have not been deed restricted. Any residence or 'W:M commercial building passed by the cable system plant may subscribe to the aforementioned service at will. The Company will not �. require the customer to continue to receive service any longer than the customer may desire, except in these areas where there are deed restrictions in connection with community antenna television system. SECTION 10: PAYMENTS TO CITY BY COMPANY. (a) The Company will pay to the City an annual fee equal to ten percent (10%) of the gross revenues received from all sources in areas where there are no deed restrictions regarding use or non- use of the CATV system and five percent (5%) of p the gross revenues from all sources in areas where deed restrictions contain provisions re- garding the use or non use of the CATV system. All payments required to be made by the Company to the City shall be made semi-annually, on January 1, or July 1, of each year in which revenues are received, and shall be due within thirty (30) days after the close of the preceding six (6) months period. SECTION 11: PAYMENTS TO CITY BY SUBSCRIBERS. The City agrees to remit to the Company each month any special assessments which it may collect from residents of the City in deed restricted areas for use of the CATV system in accordance with such deed restrictions, as and when the same are assigned to and accepted by the City. SECTION 12: PROHIBITIONS. (a) Television Sales and Service - The Company and its employees shall not engage in the sale, service, rental or leasing of television receivers, within the City. (b) Music to Businesses - The Company shall not con- tract for or otherwise attempt to sell a background - music service, per se, to commercial establishments, apart from that which is part of the community antenna service authorized by this Ordinance. (c) Interference with Existing TV Reception - . Installation shall be maintained so as not to interfere with TV reception already in existence. SECTION 13: OPERATION AND MAINTENANCE OF SYSTEM. (a) The Company shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest possible time. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system. The Company shall operate the system so that there shall be no interference with television reception, radio reception, telephone communications or other in- stallations which are now or may hereafter be installed and in use by the City or any persons in the City. (b) The Company shall maintiin an office in the City of Tamarac, Florida, which shall be open during all usual business hours, have a listed telephone, and be so operated that complaints or requests for repairs or adjustments may be received at any time. SECTION 14: EMERGENCY USE OF FACILITIES. In the case of any emergency or disaster, the Company shall, upon request of the City, make available its facilities to the City for emergency use during the emergency or disaster. SECTION 15: REMOVAL OR RELOCATION OF FACILITIES. If at any time during the period of this franchise the City shall lawfully elect to alter or change the grade of any street, easement and swale, sidewalk, alley or other public way, the Company, upon reasonable notice by the City, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own cost and expense. Any poles or other fixtures placed in any public way by the Company shall be placed in such manner as not to interfere with the usual travel =0= or any utilities located in or on such public way. The Company shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same and the Company shall have the authority to require such payment in advance. The Company shall be given not less than seventy-two (72) hours advance notice to arrange for such temporary wire changes. SECTION 16: PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED. The Company shall not, as to rates, charges, service, services facilities, rules, regulations, or in any other respect, make or grant any undue preference or advantage to any person, nor subject any person to any prejudice or disadvantage. SECTION 17: TRANSFER PROHIBITED. The Company shall not sell its plan or system or portion thereof, nor any right, title or interest in the same, nor shall the Company sell any rights under this Franchise Ordinance to any other person without prior approval of the City Council, which approval shall not be unreasonably withheld. SECTION 18: CHANGE OF CONTROL OF COMPANY. Prior approval by the City Council shall be required where ownership or control of the Company is acquired by a person or group of persons, acting in concert, none of whom already own or controls the Company, singularly or collectively, except that this Section shall not apply to any corporation other than a closed corporation as defined herein. By its acceptance of this Frachise, the Company specifically agrees that any such acquisition occurring without prior approval of the City Council shall con- stitute a violation of this Franchise by the Company and be grounds for default. SECTION 19: CITY RIGHTS IN FRANCHISE. (a) The right is hereby reserved to the City or the City Council to adopt, in addition to the t 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 not conflict with the rights herein granted. (b) The City shall have the right to inspect the books, records, maps, plans and other like materials of the Company related to its operations in the City of Tamarac at any time during normal business hours. All of the foregoing shall be maintained at a location within the City of Tamarac. (c) The City shall have the right, during the life of this Franchise, to install and maintain free of charge upon the polessof the Company any wire and pole fixtures necessary for a police alarm system, on the condition that such wire and pole fixtures do not interfere with the CATV operations of the Company. (d) The City shall have the right to supervise all construction or installation work performed subject to the provisions of this franchise and make such inspections as it shall find necessary to insure compliance with the terms of this franchise and other provisions of law. (e) At the expiration of -the term for which t1.is Franchise is granted, or upon its termination and cancellation, as provided for herein, the City shall have the right to require the gompany to remove at its own expense all or any portion of the CATV system from all public ways within the City. (f) 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 as a condition precedent of the taking effect of the grant, to require the Company to give and grant to the municipality all property used under or in connection with this Franchise or such part of such property as the municipality may desire to purchase in accordance with and - 12 - pursuant to the terms of Florida Statutes 167.22. (g) After the expiration of the term for which this Franchise is granted, or after its termination and cancellation, as provided for herein, the City shall have the right to determine whether the Company may continue to operate and maintain the CATV system pending the decision of the City as to the future maintenance and operation of such system. (h) The Company states that it is familiar with the provisions of Sections 84, 85, 86, 87 and 88 of the Charter of the City of Tamarac, Florida, which is Chapter 63-1970, laws of Florida, special acts of 1963, and all subsequent laws amendadory thereof, or making additions thereto, and the same are hereby incorporated herein as if set forth in haec verba. SECTION 20: REPORTS. The Company shall file with the City Clerk, along with its semi-annual payment of the Franchise fee, a certified statement of the gross revenues from all sources for such period. If the Company is a closed corporation, as herein defined, it shall keep on file with the City Clerk a current list of its shareholders and bondholders. The Franchise fee paid by the Company shall be in addition to any other tax or payment owed by the Company to the City. SECTION 21: FORFEITURE OF FRANCHISE Should the Company, its successors or assigns, violate any of the provisions of this Franchise, any Ordinance or any reasonable rules and regulations or other laws, Company shall fail to promptly perform any of the provisions hereof,theeCompany shall forfeit all of its rights hereunder to the City after written notice to the Company and the continuation of such violation, failure or default for a period of more than thirty (30) days. In the event of the bankruptcy or receivership of the Company, all rights herein given to the Company shall, at the option of the City, be forfeited and terminated. SECTION 22: DURATION OF FRANCHISE ORDINANCE. This Franchise Ordinance shall remain in full force and effect for a period of twenty (20) years, and may be - 13-- renewed by the City for an additional ten (10) year period. SECTION 23: CLUBHOUSE/RECREATIONAL OUTLETS. Company agrees at its expense to install, provide and maintain one outlet of the system to each clubhouse in each recreation area in the City where more than forty (40%) percent of the homes being serviced by such clubhouse are subscribers to the system. SECTION 24: RIGHT OF INSPECTION. The City shall have the right to inspect the books, records and documents of the Company at all reasonable hours, so long as such inppection is accomplished in a manner so as not to interfere with or interrupt the Company's operations. SECTION 25: ACCEPTANCE OF FRANCHISE. Within thirty (30) days after the effective date of this Ordinance, the Company shall file with the City Clerk its unconditional acceptance of this Franchise and promise to comply with and abide by all of its terms, provisions and con- ditions, otherwise this Franchise Ordinance shall be null and void and of no further force and effect. Such acpeptance as promise shall be in writing duly executed and sworn to by or on behalf of the Company before a Notary Public or other officer authorized by law to administer oaths. SECTION 26: ERECTION, REMOVAL, AND COMMON USER OF POLES. (a) No underground facilities, poles or other wire - holding structures shall be erected by the Company without prior approval of the City Clerk with regard to location, height, type and any other pertinent aspect. However, no location of any underground facility, pole or wire -holding structure of the Company shall be a vested interest and such poles or structures shall be removed or modified by the Company at its own expense whenever the City Clerk determines that the public convenience would be enhanced thereby. (b) Where poles or other already existing for available for use by make arrangements fo wire -holding structures use in serving the City are the Company, but it does not r such use, the City Council - 14 - i may require the Company to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Company are just and reasonable. (c) Where the City or a public utility serving the City desires to make use of the poles or other wire -holding structures of the Company, but agreement therefor with the Company cannot be reached, the City Council may require the Company to permit such use for such consideration and upon such terms as the Council shall determine to be just and reasonable, if the Council determines that the use would enhance the public convenience and would not unduly interfere with the Company's operations. SECTION 27: NUMBER OF CHANNELS. The Company's cable distribution system shall be capable of carrying at least forty (40) television channels. The Company shall carry Channels 2, 4, 5, 6, 7, 10, 12, 23, 51 and FM radio, and such other licensed VHF and UHF channels which, in the future, place a grade B or better signal within the community. SECTION 28: ADDITIONAL REQUIREMENTS REGARDING RATES. Anything herein to the contrary notwithstanding, any rates contained herein may not be increased or decreased by the Company without prior approval of the City Council. Any rates for any service provided for by the Company to any subscriber not set forth in this Ordinance must receive prior approval of the Council before being charged to such subscriber. SECTION 29: PUBLICATION COSTS. The Company shall assume the costs of publication of this Franchise and any Notice of Public Hearing thereon, as the same is required by law, and such is payable upon the Company's filing of acceptance of this Franchise. SECTION 30: SEVERABILITY. Should any paragraph, section, sub -section, sentence - 15 - I clause, phrase, word or portion of this Ordinance be held for any reason to be invalid or unconstitutional by any Court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the remainder hereof, as a whole, or any part hereof, other than the part declared to be unconstitutional and invalid. SECTION 31: ORDINANCES REPEALED All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 32: EFFECTIVE DATE. This Ordinance shall be effective upon its passage upon third reading by the City Council, subject'to acceptance by the Company as otherwise provided herein. PASSED FIRST READING thisday of �� 1969. PASSED SECOND READING thisdt-/. day of , 1969. PASSED THIRD READING this a%16C day of • , 1969. MAYOR ATTE ST : City Clerk =0M