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Ordinance No. 40-87-15 v Elk ORDINANCE NO. 40-87-15 AN ORDINANCE PROVIDING FOR THE GRANTING OF A NONEXCLUSIVE FRANCHISE TO OPERATE A CABLE TELEVISION SYSTEM IN THE NORTH SEMINOLE BEACH AREA OF THE CITY OF ATLANTIC BEACH; SETTING FOR THE CONDITIONS ACCOMPANYING THE GRANTING OF FRANCHISE; PROVIDING FOR CITY REGULATION OF THE CABLE TELEVISION SYSTEM ; PRESCRIBING PENALTIES FOR VIOLATIONS OF THE FRANCHISE PROVISION ; AND ESTABLISHING GENERAL RULES FOR THE APPLICATION PROCEDURES REQUIRED BEFORE GRANTING A FRANCHISE ; PROVIDING AN EFFECTIVE DATE BE IT ORDAINED BY THE CITY OF ATLANTIC BEACH, FLORIDA: Section 1 . This Ordinance and Franchise Agreement attached hereto and made a part hereof, shall be know and may be cited as the "Seminole Beach Cable Television Ordinance." Section 2. The Mayor and Clerk be, and they hereby are, authorized to execute a non-exclusive franchise agreement between the City of Atlantic Beach and Continental Cablevision of Jacksonville, Inc. for a non-exclusive cable television franchise in the area known as Seminole Beach, under the agreement setforth in Section 1 . as of January 1 , 1987. Section 3. This Ordinance shall take effect upon its adoption. Passed by the City Commission on first reading August 24, 1987. Passed by the City Commission on second and final reading September 28, 1987. /6.64/ // Wi ' iam S. Howell, Mayor, Presiding Officer Approved as to Form and Correctness : laude L. Mullis, City •rney (SEAL) ATTEST: Ade aide R. Tucker, City Clerk CABLE TELEVISION FRANCHISE ORDINANCE FOR THE CITY OF ATLANTIC BEACH, FLORIDA 101 Grant of Authority 102 Definitions 103 System Design 104 Technical and Operational Standards 105 Installation of System 106 Service Area and Reports 107 Regulation of System 108 Franchise Fees 109 Residential and Multiple Unit Subscriber Rates 110 Modification of Franchise 111 Restrictions on Grantee 112 Remedies for Violation 113 Revocation of Franchise 114 Expiration of Revocation and Renewal of Franchise 115 Foreclosure ; Receivership 116 Rights Reserved to City 117 Notices 118 Successors and Assigns 119 Grantee to Have No Recourse 120 Arbitration 121 Miscellaneous Provisions 122 Unauthorized Use 123 Operation of Franchise 124 Application of State and Federal Law -4- • CABLE TELEVISION FRANCHISE ORDINANCE FOR THE CITY OF ATLANTIC BEACH, FLORIDA 101 GRANT OF AUTHORITY (a) The Commission herein sets forth the conditions for the grant of non-exclusive right, privilege and franchise to construct, operate and maintain a cable television system in the City and for residents, the system to be located in, upon, along across , over and under the streets and roads of the City within that area designated in Exhibit A and all extensions and additions thereto, and within any easements which have been dedicated for compatible uses for a period of seven (7) years , commencing with the effective date of the franchise issued pursuant to this ordinance, subject to the rights, obligations, conditions, and restrictions as hereinafter provided. Applicants for franchises to be issued after the effective date of the Ordinance shall be required to show evidence of a registration statement filed with the Federal Communications Commission, pursuant to 47 C.F. R §76. 12. (b) The Commission retains authority to provide for the regulation and control of the cable television system as prescribed herein subsequent to the award of the the franchise and to review the franchise periodically. (c) The City assumes jurisdiction, where consistent with the Cable Communications Policy Act of 1984 and not entirely preempted by the Federal Communications Commission, to enforce all laws and regulations relating to cable television service in the City. -5- (d) The grantee shall be selected as part of a public proceeding affording due process, after which the applicant approved by the Commission will enter into a contract with the City pursuant to the provisions of this ordinance. 102 DEFINITIONS for purposes of this ordinance, unless the context otherwise requires: (a) Applicant means a person submitting an application to the City for a franchise to operate a cable television system under the terms and conditions set forth in this ordinance. (b) Cablecasting means programming (exclusive of original broadcast signals) carried on a cable television system, and: (1 ) access cablecasting means services provided by a cable television system on public , educational or local government channels. (2 ) ori&ination cablecasting means programming (exclusive of broadcast signals) carried on a cable television system over one or more channels and subject to the exclusive control of the cable operator. (b) Cable television system means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include ( i) a facility that serves only to retransmit the television signals of one of more television broadcast stations ; (ii) a facility that serves only subscribers -6- in one or more multiple unit dwellings, under common ownership, control , or management, unless such facility of facilities use any public rights-of-way ; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Cable Communications Policy Act of 1984, except that such facility shall be considered a cable system (other than for purposes of Section 621c) of that Act) to the extent such facility is used in the transmission of video programming directly to subscribers; or (iv) any facilities of any electric utility used solely for operating its electric utility systems. (d) Channel means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a standard television channel, as defined by the FCC> (1 ) educational access channel means a specially designated channel for use of local educational authorities. (2) grantee channel means a channel that is reserved or is available for the carriage of programming that is originated by the grantee in accordance with FCC rules . (3) local government access channel means a specifically designated channel for local government use. -7- (4) public access channel means a specifically designated, non-commercial channel available to any member of the public on a first-come, nondiscriminatory basis. (e) City shall mean that portion of Atlantic Beach known as Seminole Beach, as indicated on Exhibit A. (f) Converter means an electronic device which converts signals to a desired frequency to permit the subscriber to view all signals delivered. (g) FCC means the Federal Communications Commission. (h) Franchisee or grantee means the person that is awarded a franchise by the City to construct and operate a cable television system within the City in accordance with the provisions of all applicable law and in the territory described (i) Service area means that portion of the City where energized trunk and distribution cable shall be extended and service shall be made available to all persons. (j) Master Antenna Television System means a facility that serves only subscribers in one or more multiple dwelling units under common ownership, control , or management, unless such facility of facilities uses any public right-of-way. (k) Monitoring means the observation or testing of a signal or signals, or the absence thereof, whether the signal is observed by visual or electronic means, where the observer is neither the subscriber nor the initiator of the signal. -8- (1 ) Public proceeding means a meeting open to the general public with prior announcement of the time and place at which members of the public are provided an opportunity to be heard . (m) Street means the surface of and the space above and below a public street, road, highway, freeway, lane, path, public way or place, alley, court, boulevard , parkway, drive or other easements now or hereafter held by the City for the purpose of public travel and shall include other easements or rights-of-way now held or hereafter held by the City which shall , within their proper use and meaning, entitle the City and its grantee to the use thereof for the purposes of installing or transmitting cable television system transmissions over poles, wires, cables , conductors, ducts , conduits, valuts, manholes, amplifiers , appliances, attachments and other property as may ordinarily be necessary and pertinent to a cable television system. Any of the terms used herein, and the definitions thereof, that are defined in Section 76.5 of the rules of the FCC, or elsewhere, and not mentioned in the above definitions, are incorporated herein by reference, City and Continental shall promulgate them in the rules. -9- 103 SYSTEM DESIGN (a) The cable system shall consist of one master headend and as many area hubs as are necessary to serve effectively the service are ; provided, however, that the cable system may be an extension of the grantees system serving the City of Jacksonville and shall include sufficient receiving and transmission equipment necessary to effectively serve the service area. The transportation system may consist of either microwave or cable for downstream transmission. The distribution system shall consist of: (1 ) single trunk cable. (2) single feeder cable. (3) subscriber set converter . (The system shall be capable of initially transmitting over at least thirty (30) channels for delivery to subscribers upon commencement of operation. The grantee, during the term of its franchise, shall continuously carry the signals of all local broadcast television stations now or hereafter required by the FCC, if any such requirements exist, to serve the City (except low power television stations as defined in FCC rules, which may be carried at the grantees option) provided, that nothing herein contained shall be construed to require the grantee to carry at no charge a signal for which the television station received remuneration from or on behalf of the recipient of the signal , -10- including signals now known as Teletext or Extravision or other signal programs for which a charge is made by the television station. (c) Residents of the service area shall be allowed to utilize existing public, educational and government access channels and equipment provided by the grantee in the City of Jacksonville at the time of the effective date of this Ordinance. (d) The grantee shall designate channel capacity for commercial use by persons unaffiliated with the operator in accordance with the requirements of Section 612 of the Cable Communications Policy Act of 1984. (1 ) The grantee may use any unused channel capacity designated pursuant to this section until an agreement is reached to lease that capacity. (2) If a person unaffiliated with the grantee seeks to lease channel capacity pursuant to this section, the grantee shall establish the price, terms and conditions of such lease which are at least sufficient to assure that the lease will not adversely affect the operation, financial condition, or market development of the cable system. (e) The grantee shall install and maintain a cable television with capacity for two-way communications. (f) No monitoring of a terminal connected to the system shall take place without the written authorization of the person to be monitored; provided however, that this subsection shall not prohibit maintenance and testing procedures designed to assure compliance with technical standards (or to detect unauthorized -11 - reception) . (g) The grantee may be required to interconnect, where it does not conflict with FCC regulations, directly or by use of microwave, its system with other broadband communications facilities. The grantee shall install equipment which is capable of accepting signals from other sources and of processing them into the cable television system. (h) Underground and overhead installation shall be done in accordance with the following requirements : (1 ) in areas of the City having telephone lines and electric utility lines underground, whether required or not, all cable television lines, cable and wires shall be underground. It is the policy of the City that existing poles for electric and communications purpose be utilized wherever possible without placement of additional poles by the grantee and that underground installation, even when not required, is preferred. The cost of underground installations shall be borne by the grantee in accordance with Sections 106a and 106c. (2 ) it is the policy of the City to encourage underground installation wherever practicable. If such undergrounding entails additional costs, the grantee may collect such added cost from residents of the affected area or from all subscribers. (3) the grantees cable television distribution system in the public streets shall comply with all applicable laws and regulations, and all its wires and cables suspended from poles in -12- the streets shall comply with the minimum clearances above ground required for telephone lines, cables, wires and conduits in the City. ( i) The cable system operator shall maintain equipment capable of providing standby power for headend, transportation and trunk amplifiers for a minimum of two hours. 104 TECHNICAL AND OPERATIONAL STANDARDS. The policy of the City with respect to technical and operational standards shall be to require that the cable television system be safely constructed and operated and that the system's components are durable and reliable. Signal reception standards and subscriber viewing standards shall be maintained at all times by the system operation at a level at least equal to the "minimum" standards. In no event shall the City's technical and operational standards exceed those sanctioned by the FCC. 9a) Construction standards and specifications. Methods of construction, installation and maintenance of the City's cable television system shall comply with the National Electrical Safety Code, National Bureau of Standards Handbook 82 (part 2) , National Bureau of Standards, United States Department of Commerce, dated November 1 , 1961 , to the extent that the code is consistent with local law affecting the construction , installation, and maintenance of electric supply and communications lines. To the extent that the code is inconsistent with other provisions of this franchise or with local law, the latter shall govern. (1 ) Grounding. The neutral side of the power drop -13- shall be continuous and unfused. Where not in conflict with pole joint use agreements, interconnection between the cable system ground and the power company ground shall be made at the base of the pole. Otherwise, the neutral line shall be bonded to the cutout cabinet, which in turn shall be grounded to a driven earth ground at the pole. The strand shall be bonded to the telephone strand at the first, the last and at every fifth pole counting from the first pole. All cabinets, housings and fused cutout cabinets on a common pole shall be commonly bonded to each other and to the cable system and telephone strands with a pressure bonding and grounding clamp connected to a five-eighths-inch by six-foot (5/8" x 6') copperclad steel ground rod with #6 solid, soft- drawn copper wire. The anchor attachment shall be effectively grounded and electrically continuous to earth through the anchor. A guy bond clamp shall be inserted in all bolt and nut thimble-eyes and at anchor-guyed poles, if the poles are the last in any line of poles. If the strand at these locations (deadends) is not effectively earth grounded , it shall be grounded by a length of #6 solid bare copper wire bonded to the messenger with the strand around clamps and subsequently bonded to a ground rod driven into a suitable earth ground. All aerial amplifier housings will be bonded to both the cable system strand and the telephone company strand using #6 sof-drawn copper wire with jacket bonding clamps. (2) Strand . (i) The strand of messenger cable used throughout -14- for trunks shall be one-quarter (1 /4") inch in diameter or larger, high strength, seven-wire performed with galvanized zinc coating A. (ii) All electronics equipment shall be protected by a housing which is corrosion resistant and weatherproofed. ( iii) All exposed splices , connectors and terminators shall be weatherproofed. Exposed connectors shall be corrosion resistant. All equipment connectors shall contain "0 rings" on the cable side of the connectors. (3) Lashing. Stainless steel lashing wire, 0.045 inch in diameter , shall be used in securing the cable to the supporting strand. Tension on this lashing wire shall be appropriate to the size of the cable being secured. Cables extending over long spans shall be doubly-lashed. The lashing wire shall terminate at each side of the pole with a lashing wire clamp. The cables shall be fastened to the strand at each side of the pole with a lashed cable support. The support shall be a maximum of ten inches from the suspension clamp bolt connectors except as otherwise necessary. (4) Trenching Standards. Before trenching begins in an area containing existing underground facilities it shall be the grantees responsibility to have the facilities located by the owner of the facilities at the grantees expense. Trenches in which direct burial cables are placed shall have a minimum depth of eighteen inches below grade and shall generally be in straight lines between cable connections except as otherwise necessary. Bends in trenches shall have a radius of not less than thirty-six -15- inches. Rock, where encountered, shall be removed to a depth of not less than three inches below the cable depth and the space filled with sand or clean earth, free from particles that would be retained on a one-quarter inch sieve. With respect to cable: ( i) Cable of the same size being used for different purposes and lashed together shall be clearly identified as to its function. All main trunk and feeder cable shall be clearly identified at the output of each equipment location indications each cable's route. (ii) Trunk and feeder cable shall have a protective jacket covering the outer conductor. ( iii) No trunk or distribution cable shall be directly buried unless it contains a secure polyethylene jacket protecting the steel from corrosion and a moisture barrier flooding compound inside both the inner and outer jacket, except that, where the cable is not installed under a major highway or thoroughfare, cable containing copper-clad aluminum (or, if desired, solid copper) center conductor, inert gas expanded polyethylene dielectric with active continuous bonding of the center conductor to the dielectrics, and solid aluminum sheath covered with a 0.05-inch outer jacket constructed of black, high molecular weight polyethylene and Migra-Heal flooding compound between the jacket and aluminum sheath may be used. should any cable of this latter alternative type fail due to moisture immigration, all cable as may require replacement will be of the former type. -16- (b) Signal Reception Standards. The objective of the City in this area is to ensure that the system will deliver good quality pictures to subscriber terminals. The following standards are prescribed to enable the City to pinpoint responsibility for poor performance: (1 ) FCC Standards. The system shall meet all FCC "guideline" standards for reception of broadcast signals, as described in 47 C.F. R. §§ 76.601 -076.613, FCC Rules , 1972, or elsewhere, as amended from time to time. The signal reception standards as now existing or hereafter issued by the FCC are incorporated into and made a part of this chapter. Grading of the quality of each "locally receivable signal" against the performance of the system in delivering that signal to subscribers shall be measured by tests sanctioned by the FCC upon request by the City. Factors to be measured by a signal survey are noise, hum modulation, beat interference reflections, signal level and color quality. (c) Subscriber Viewing Standards . (1 ) The grantee shall comply full with the subscriber viewing standards for cable television operations as adopted by the FCC in 47 C.F.R. § § 76.613, or elsewhere. The standards as now existing or hereafter promulgated by the FCC are incorporated into and made a part of this ordinance and shall be promulgated by Continental in rules. (2) The system shall be capable of delivering all signals of the FCC to Electronic Industries Association-approved stereophonic or monaural FM receivers. -17- (3) The cable system shall meet all performance criteria herein contained and specified under the ambient temperature range prevailing in the franchise area from the normal daily minimum temperature in February to the normal daily maximum temperature in August. (d) Proof of Performance Testing. The grantee shall conduct at its own expense tests of the ability of the cable system to meet technical guidelines prescribed by the FCC and shall be responsible for insuring full compliance of said guidelines. The test results shall be recorded in writing with copies of those records furnished to City Manager of the City within ten days. Records of tests together with a report interpreting the results of such tests and action needed for correction where the system is not meeting current FCC guidelines or the guidelines set out in this chapter shall be submitted to City Manager. The grantee shall be held fully accountable for the accurate recording of test results and all such tests may be subject to independent verification by City's Representative. At the discretion of City Manager, a consultant nominated by the grantee and approved by City manager shall monitor the grantees technical performance annually at grantees expense to determine whether all television signals meet the technical standards of and are in compliance with the standards of the FCC and of the City, provided no charge shall be made to grantee for this service in any calendar year which exceed the cost of not more than 50 hours of services of a consulting engineer at the then -18- prevailing rate in the industry. (1 ) Annual proof of performance testing shall be done as prescribed by the FCC. (2) Special tests may be required by City Manager whenever he has what he deems to be responsible evidence that something is wrong with the system. Requests for special tests shall be limited to the suspected fault in question rather than an over-all proof of performance. The test shall be made, and the results of the test shall be delivered to City Manager no later than fourteen (14) days after the City formally notifies the company. (3) All measurements shall be made using instruments which are each appropriate for making the particular test. The instruments, where accuracy can be ultimately referenced to those standards developed by the National Bureau of Standards for test equipment, shall each have an accuracy sufficiently sensitive to measure each parameter. The test equipment and instruments shall have a know correction factor for bandwidth and scale position where applicable. (4) Those tests and measurements sanctioned by the FCC to ensure compliance with technical standards shall be performed in a manner that is consistent with the provisions of 47 C.F.R. § § 76.609 et seq. (5) The testing procedures contained in this chapter shall be utilized for measurements of performance charateristics sanctioned by the FCC. (6) The City shall have the right to review all test -19- results of system performance conducted by grantee and to require compliance with all performance criteria prescribed by the FCC. 105 INSTALLATION OF SYSTEM. (a) The grantee shall obtain a permit from City Manager and give written notice of proposed construction at least ten days prior to the construction so as to coordinate all work between the City and the grantee. The City through its authorized representative shall have the right to inspect all construction or installation work performed by the company in the streets, and to make such periodic inspections as the City deems necessary to ensure compliance with the terms of its franchise and other pertinent provisions of law. (b) A grantee shall , at its expense, protect, support, temporarily disconnect or relocate in the same street or other public place any property of the grantee when required by reason of traffic conditions, public safety, street closing, street construction , change or establishment of street grade , installation of sewers, drains, water pipes, power or signal lines owned by the City or any other type of structure of improvement. (c) Nothing in this chapter or any franchise granted hereunder shall authorize the grantee to erect and maintain new poles where existing poles are servicing the area. The grantee shall obtain permission from the City before erecting any new poles or underground conduit at the time the grantee seeks to install its network. -20- (d) All wires, conduits , cables and other property and facilities of the grantee shall be so located, constructed, installed and maintained so as not to endanger or unnecessarily interfere with the usual and customary traffic and travel upon the streets and public places of the City. The grantee shall keep and maintain all of its property in good condition, order and repair. The grantee shall keep accurate maps and records as requested by the City within thirty days from the date of the request by the City. The grantee shall not place poles or other equipment where they will interfere with the rights or property owners, with gas , electric or telephone fixtures or with water hydrants or mains. (e) Nothing continued in this section shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid injuring the grantees facilities while performing work connected with grading, regarding or damaging the line in a street or public place with the construction or reconstruction of a sewer or water system. (f) The City shall give the grantee reasonable notice of plans for street improvements where paving or resurfacing of a permanent nature is involved. The notice shall described the nature and character of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the work schedule for the project. The notice shall give the grantee sufficient time to make any additions, alterations, or repairs to its facilities, so as to permit the grantee to maintain continuity of service. If the grantee shall fail , -21 - refuse or neglect to comply promptly, upon sufficient notice, the City may make the changes in the grantees facilities at the grantees cost and the City shall no be liable to the grantee for damages resulting from the removal, alterations or relocation. All costs in connection therewith shall be paid by the grantee within thirty days from receipt of the invoice therefore. (g) The grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and other public places of the City so as to prevent the branches of the trees from coming in contact with its wires and cables. All trimming is to be done under the supervision and direction of the City, after the prior written notification and approval of the City, at the expense of the grantee. The grantee may contract for this service; however, a firm or individual so retained shall receive written City approval prior to commencing this activity. (h) In cases of new construction or property development where utilities are to be placed underground, upon request of grantee the developer or property owner shall give grantee reasonable notice of the particular date on which open trenching will be available for grantees installation of conduit, pedestals and/or vaults, and laterals to be provided at grantees expense. 106 SERVICE AREA AND REPORTS. (a) Service Area. The service area shall include all areas within the area shown on Exhibit A served by a cable television system at the time an application is submitted pursuant to Section 123. All reasonable applications for service will be -22- provided within a reasonable time. The grantee, within ninety days after the effective date of the franchise, shall submit to the City a map indicating in detail the schedule for providing service to each portion of the initial service area. (b) Time limitation for extension of service. Within one (1 ) year after the effective date of the franchise issued pursuant to this Ordinance, a grantee shall have energized trunk and distribution cable extended completely throughout the service area. (c) Extension of service outside service area. Outside the service area, the grantee shall extend its plant and make service available as rapidly as economically and technically feasible . (d) Progress and status reports. (1 ) Within one (1 ) month of the effective date of the franchise, the grantee shall submit to the City its construction plan, including the timetable for construction of the various segments of the system. (2) From the date of commencement of construction through the completion of the construction timetable, the grantee shall furnish the City with progress reports at monthly intervals, the first such report to be made one month from the effective date of the franchise granted pursuant to this Ordinance. Such reports shall indicate, in detail, the progress of construction. (3) Within ten ( 10) days after the grantee , its affiliates, and/or subsidiaries have filed an annual report or any other petition or communication having direct bearing on the -23- system with any governmental body, including all reports required to be filed with the FCC, it shall maintain a file copy of the document accessible by City's Authorized representative. (e) Delay. For each day after thirty days' written notice of delay of this construction schedule the grantee shall be obligated to the City for liquidated damages in the amount of two hundred fifty dollars ($250.00) for each day, not to exceed a period of six months in total. However , the grantee shall not be responsible for failure to meet all or part of the construction schedule deadlines under this agreement due to federal , state or municipal action, act of God, riot or other civil disturbance, or by any other cause, contingency or circumstance beyond its control which prevents or hinders the construction of the cable television system. If construction is determined by the Council to have been delayed or prevented by any of the circumstances set for the hereinabove, the grantee shall be absolved from liability upon a sufficient showing of the circumstances. (f) Location of office and books of grantee. (1 ) As long as it continues to operate the system or any portion thereof in the City, the grantee shall maintain an office in the City or in the City of Jacksonville if grantee also provides cable service therein, and hereby designates the office as the place where all legal notices , directions , orders and requests may be served or delivered on it pursuant to the terms of this chapter. The City shall immediately be notified of the location of the office or any change thereof. -24- (2) The grantee shall keep complete and accurate books of accounts and records of its business and operation in the City and shall maintain those reports at the grantees office in the City. (3) The City or its duly authorized representative shall have access to all of the records described above. The grantee shall provide access during the hours of 9"00 a.m. to 5: 00 p.m. from Monday through Friday. (4) A false entry in the records of the grantee pertaining to a material or substantial fact that has been knowingly made by the grantee shall constitute a violation of a material provision of this chapter. (g) Indemnity and insurance. (1 ) The grantee shall at all times indemnify, protect and save harmless the City from any and all penalty, damage or charges arising out of the claims, suits or causes of action, of award of damages whether compensatory or punitive, or expenses arising therefrom , either at law or in equity, which might be claimed now or in the future, including any payments required by the worker' s compensation law, which may arise out of or be caused by the erection, location, maintenance, repair , installation, replacement or removal of the cable television system within the City or by an act of the grantee, its agents or employees. (2) Within thirty days after granting of the franchise and at all times during the term of this franchise, there grantee shall obtain, pay all premiums for and file with City Manager and -25- executed copy, together with receipts evidencing payment of the premium, of a comprehensive general liability policy issued by a company authorized to do business in the State, in the form and substance approved by the City Attorney , of not less than ( i) one-half million dollars for property damages for any one accident ; (ii) one-half million dollars for each person; and (iii) one and one-half million dollars for each occurrence for liability due to personal injury or death. This insurance shall protect the City from and against all claims, demands, actions, judgments and liabilities which may arise or result, directly or indirectly, for or by reason of loss, injury or damages. In lieu of insurance, the grantees may deposit cash or securities providing the security called for in this paragraph. All insurance required hereby shall include the City as an insured party. (h) Surety and deposit. Within ninety days after the effective date of the franchise issued pursuant to this ordinance, the grantee shall post with the City a construction bond, acceptable to the City Attorney, in an amount equal to the cost of any construction required under this franchise as surety for the faithful performance and discharge by it of such construction obligations as are imposed by this chapter from the date thereof. The bond shall remain in force and effect until the construction is completed. The rights reserved to the City with respect to the surety bond are in addition to all other rights of the City, whether reserved by this chapter or -26- authorized by law, and no action, proceeding or exercise of a right with respect to the bond shall affect any other right the City may have. (i) Fair employment practices. The grantee will not refuse to hire or employ nor bar or discharge from employment, nor discriminate against any person in compensation or in terms, conditions or privileges of employment because of age, race, creed, color, national origin or sex. The grantee shall comply with the FCC any City regulations regarding affirmative action in employment. 107 REGULATION OF SYSTEM (a) The City shall have continuing regulatory jurisdiction and supervision over the operation of any franchise granted hereunder and may from time to time adopt such reasonable rules and regulations as it may deem necessary for the conduct of the business contemplated hereunder, provided that any such exercise which is not of general applicability or applies exclusively to grantee or to cable television systems or subscribers which contains provisions inconsistent with the ordinance shall prevail only if upon such exercise the City find an emergency exists constituting a danger to health, safety or property, or such exercise is compelled by supervising law. (b) The continuing regulatory jurisdiction of the City shall be exercised by City Manager or authorized representative. He shall have the following responsibilities and duties and such other responsibilities and duties as the Commission may assign : (1 ) promulgating rules governing relationships between -27- subscribers and the grantee. (2 ) resolving disputes or disagreements between subscribers and the grantee after investigation, should the subscriber and the grantee not first be able to resolve their dispute or disagreement. The City Manager shall have authority to make proposals to the grantee and subscriber resolving disputes. (3) reviewing all reports and filing submitted to the City as required hereunder and such other correspondence as may be submitted to the City concerning the operation of the system and reviewing the rules and regulations set by the grantee under the provisions herein. (4) assuring that all rates and rules pertinent to the operation of the system are communicated to the public at reasonable hours and upon reasonable request. (5) conferring and coordinating with the grantee on the interconnection of the City's cable system with other communications systems. (6) reviewing reports regarding the technical performance of the system in order to assess whether the system is maintaining required technical standards. (C) consumer and user complaints shall be handled as follows : (1 ) the grantee shall maintain an office in the City or in the City of Jacksonville which shall be open during usual business hours, have a publicly- listed telephone and be so -28- operated that complaints and requests for repairs or adjustments may be received on a twenty-four hour basis. Records shall be maintained by the grantee recording the time of complaint, nature of complaint and corrective action taken. The grantee shall report monthly to City Manager the number of complaints received in the previous month for billing, service and programming problems associated with its entire cable system (inclusive of the City of Jacksonville, if grantee provides cable service therein) and the grantee shall furnish to each subscriber in writing procedures for reporting complaints to the grantee initially and notice that unresolved complaints may be reported to the City Manager. (2) The grantees shall maintain a repair service capable of responding to subscriber complaints or requests for repair service within twenty-four hours after receipt of the complaint or request. No direct charge shall be made to the subscriber for this service. In the event of interruption of service for twenty-four consecutive hours, except for acts of God, and except in circumstances where prior approval of City Manager is obtained, the grantee shall provide a ten percent rebate of monthly fees to the affected subscribers. In the event of interruption of service for forty-eight consecutive hours , except for acts of God, and unless approval of the City Manager is obtained, the grantee shall provide a twenty percent rebated of monthly fees to the affected subscribers. Time under this provision shall be counted from the hour the complaint is reported to the grantee. -29- (3) City Manager shall , within six months from the grant of the franchise, establish procedures and promulgate rules for resolving complaints. city Manager shall be responsible for receiving and acting upon and complaint that the grantee has not resolved to the satisfaction of the complainant. (4) The grantee shall advise subscribers at the time of initial subscription for service of procedures for submission and resolution of complaints. 108 FRANCHISE FEES (a) The grantee shall pay, as compensation for a franchise granted pursuant to this chapter, and in consideration of permission to use the streets and public ways of the City for the construction, operation, maintenance and reconstruction of a cable system within the City, an annual fee of three percent of its gross revenues derived from the sale of cable television services within the City. This payment shall be made to City of Atlantic Beach at City Hall. (b) Payments due the City under this provisions shall be computed quarterly, for the preceding quarter, as of January 1 , April 1 , July 1 and October 1 . Each quarterly payment shall be due and payable no later than thirty days after the relevant computation dated. Each payment shall be accompanied by a brief report to the Director of Finance showing the basis for the computation and such other relevant facts as may be required by the City. (c) No acceptance of a payment shall be construed as a -30- release of any claim that the City may have for further or additional sums payable under the provisions of this ordinance. All amounts paid shall be subject to audit and recomputation by the Finance Department. In the event that recomputation results in additional revenues to be paid to the City, the amount shall be subject to a surcharge calculated in accordance with the prime rate of interest of the First National City Bank of New York, effective as of the date of recomputation. (d) Nothing in this section shall limit a grantees liability to pay other local taxes of general applicability. Any tax, fee, or assessment which is imposed by the City upon grantee or its subscribers solely because of their status as such shall be treated as a franchise fee. Nothing herein contained shall prohibit the levy and collection of Ad Valorem taxes. (e) The fee schedule shall become operative upon the effective date of the franchise contract. (f) Grantee shall have the right to designate that portion of a subscriber's bill attributable to the franchise fee as a separated item on the bill and shall have the right to pass through to subscribers the amount of any increase in a franchise fee. 109 RESIDENTIAL AND MULTI-UNIT SUBSCRIBER RATES (a) The rates and charges for residential cable television service shall be fair and nondiscriminatory within each classification of subscribers ; provided that the grantee may adopt differing rates for reasonable classifications of subscribers, including but not limited to multiple dwelling units -31 - and extensions to outlying areas. (b) The initial rates for residential subscriber service shall be in the application of the grantee. (c) If a subscriber fails to pay the monthly subscriber fee or any other fee or charge, the grantee may disconnect the subscriber's service outlet; provided, that disconnection shall not be effected until forty-five days after the due date of the delinquent fee or charge and shall include ten days' written notice of the intent to disconnect delivered to the subscriber. If a subscriber pays within forty-five days after payment is due and after notice of disconnection has been given, the grantee shall not disconnect the subscriber' s service. After disconnection, upon payment in full of the delinquent fee or charge and the payment of a reconnection charge, plus any other charges and one (1 ) month's service in advance, the grantee shall promptly reinstate the subscriber's cable service. (1 ) The grantee, with the approval of the commission, may implement fees and charges for processing bad checks , for reconnection after disconnection for non-payment and for collection at the subscriber premises after notice of intent to disconnect. Said fees shall be follows : NSF Check $10. 00 Reconnect after disconnectin for non-payment $20. 00 Collection at subscriber premises after notice of intent to disconnect $10.00 (d) If the grantee fails to provide a service requested by a subscriber of user, the grantee shall be subject to the -32- penalties and rebate procedure set forth in Section 112(b). If a subscriber terminates a monthly service prior to end of a prepaid period, a pro rata portion of the prepaid subscriber service fee, using the number of days as a basis, shall be refunded to the subscriber by the grantee, so long as said portion is more than one dollar. Rebates of less than one dollar shall be made only if specifically requested by the subscriber. (e) The grantee may waive installation and other service charges as part of its promotional efforts. ( f) As part of its promotional effort to obtain subscribers, the Grantee shall be allowed to call upon potential subscribers at their residences in person or by telephone during reasonable hours of the day. The grantee shall aside by any notices posted at any given residence which prohibits solicitation. 110 MODIFICATION OF FRANCHISE The grantee may , at any time during the term of the franchise , submit to the Commission a proposal seeking modification of the franchise agreement. (a) Any modification proposal submitted under this Section shall be reviewed in a formal public hearing on the record. The Commission shall render a final decision within 120 days after receipt of such proposal , unless that period is extended by mutual agreement. (b) Within 120 days of an adverse modification decision on the Commission the grantee may file for a trial de novo at a -33- federal or state court of competent jurisdiction. That court may provide appropriate relief. (c) During the pendency of any bona fide modification proceeding (before City of court) , no penalties for breach of the franchise may be imposed . 111 RESTRICTIONS ON GRANTEE (a) Restrictions on assignment of franchise. (1 ) No assignment of a franchise granted hereunder shall take place without prior notice to and approval by the City, which shall not be unreasonably withheld. The notice shall include full identifying particulars of the proposed assignment, and the City shall act by resolution or Ordinance. The City shall have sixty days within which to approve or disapprove such assignment. If no action is taken within such sixty days , approval shall be deemed to have been given. In the absence of extraordinary circumstances , the City will not approve any assignment of the franchise before the completion of construction of the entire system. (b) Disclosure required. Contracts with and payments by and between the grantee and affiliates will be subject to complete disclosure to the City. The City reserves the right to inquire into the actual cost of performing services which may be purchased or contracted for or from an affiliate. (c) The grantee shall be prohibited from either directly or indirectly owning or controlling, or being owned or controlled by any television broadcast station if the predicted Grade B contour of such station covers any portion of the community served by -34- grantees cable system; or any common carrier or utility which directly or indirectly provides telephone exchange service, conduit or pole rental arrangements within the community served by grantees cable system. 112 REMEDIES FOR VIOLATIONS (a) For failure to complete construction and installation and to commence operations in accordance with the terms herein, unless the Commission, upon the recommendation of City Manager, approves the delay because of reasons beyond the control of the grantee, the franchise term shall be reduced one year for each three-month delay. (b) In the event of violations of provisions of this chapter by the grantee, the Commission reserves the right as alternatives to revocation to require of the grantee either of the following: (1 ) that rebates be paid to subscribers in accordance with a schedule of rebates to be established by the Commission reflecting the seriousness of the violation. (2) for all other violations not specified in the schedule of rebates described in subsection (1 ) , that fines by paid by the grantee to the City in the amount of two thousand five hundred dollars for each violation. For purposes of subsection (2) each share of stock transaction not in accordance with this chapter shall constitute one violation. City Manager and City Attorney shall review the violations and make recommendations to the Commission . 113 REVOCATION OF FRANCHISE -35- (a) In addition to all of the rights and powers reserved by or pertaining to the City, the City reserves as an additional and as a separate and distinct power the right to terminate the franchise and all rights and privileges of the grantee hereunder in any of the following events or for any of the following reasons : (1 ) should the grantee by act or omission breach any material terms or conditions of this chapter. (2) should the grantee become insolvent, unable or unwilling to pay its debts or be adjudged a bankrupt of all or a substantial part of the grantees facilities by sold under an instrument to secure a debt and not be redeemed by the grantee within thirty days from the sale. (3) should the entire cable television system or any substantial portion thereof fail to meet in total the FCC signal reception and subscriber viewing standards for two consecutive annual tests required in Section 104(d) (2). (4) should the grantee attempt or practice any fraud or deceit in its conduct or relations under the franchise with the City or subscribers or potential subscribers. (b) No revocation shall be effected unless or until the Commission shall have adopted an ordinance setting forth the causes and reasons for the revocation and the effective date thereof. The ordinance shall not be adopted without thirty days' notice prior thereto to the grantee and an opportunity for the grantee to be heard upon the proposed ordinance. The finding of fact as made by the City after a hearing upon the revocation -36- ordinance is held shall be conclusive, and a 60 day opportunity to cure the cases and reasons for revocation, or to commence cure if complete cure is not reasonable possible within 60 days. The City's decision to revoke shall be based upon the record of a hearing affording due process. (c) The grantee shall not be declared in default or be subject to any sanction under any provision of the ordinance in any case in which performance of the provision is prevented due to events beyond its reasonable control. (d) If the franchise is revoked for cause and the City acquires ownership of the cable system or effects a transfer of the system, the acquisition or transfer shall be at a fair market value. 114 EXPIRATION OR REVOCATION AND RENEWAL OF FRANCHISE (a) A franchise granted pursuant to this Ordinance may be renewed for five (5) years if: (1 ) the grantee has substantially complied with the material terms of the existing franchise and with applicable law; (2) the quality of the grantees service, including signal quality, response to consumer complaints, and billing practices , but without regard to the mix, quality, or level of cable services provided over the system has been reasonable in light of community needs; (3 ) the grantee has the financial , legal , and technical ability to provide the services, facilities , and equipment set forth in the grantees proposal; and -37- (4) the grantees proposal is reasonable to meet the future cable-related community needs and interest, taking into account the cost of meeting such needs and interest. The City may not declare grantees proposal unreasonable and deny renewal , nor may community needs be established , on the basis of facilities , equipment, or services which another party has indicated it is willing to provide. (b) In any renewal proceeding , the grantee shall be afforded adequate notice and the grantee and the City, or its designee , shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding. (c) A proceeding under this section shall be completed within twelve (12) months of its commencement, within which time the City shall issue a written decision granting or denying the proposal for renewal based upon the record of such decision to the grantee. Such decision shall state the reasons therefor . (d) Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in subsection (a) , pursuant to the record of the proceeding under subsection (a) . City may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection (a) or on events considered under subsection (a) unless City has provided grantee notice and the opportunity to cure, or in any case in which City has waived its right to object, or has effectively acquiesced. -38- (e) The grantee is expressly reserved its right to appeal under federal and state law. In addition to such rights, this franchise shall remain in effect at all times during which a renewal proceeding or appeal remains pending. (f) Notwithstanding the provisions of subsections (a) through (e) of this section, the grantee may submit a proposal for the renewal of franchise, and City may, after affording the public adequate notice and opportunity for commence, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsections (a) through (e). 115 FORECLOSURE; RECEIVERSHIP (a) Upon the foreclosure or judicial sale of all or a substantial part of the system or upon notification of the termination of any lease covering all or a substantial part of the system, the grantee shall immediately notify the City of this fact, and the notification shall be treated as a notification that a change in control of the grantee has taken place. Section 112 (a) , governing the consent of the City to the change in control of the grantee, shall apply upon the happening of either event. (b) The City shall have the right to revoke this franchise one hundred twenty days after the appointment of a receiver or trustee to take over and conduct the business of the grantee, -39- whether in receivership, reorganization, bankruptcy or other action or proceeding, unless there receivership or trusteeship shall have been vacated prior to the expiration of the one hundred twenty days, or unless : (1 ) within one hundred twenty days after his election or appointment, the receiver or trustee shall have fully complied with all the provisions of this chapter and remedied all defaults hereunder. (2) the receiver or trustee, within the one hundred twenty days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby the receiver or trustee assumes and agrees to be bound by each and every provision of this chapter. 116 RIGHTS RESERVED TO CITY Without limitation upon the rights which the City might otherwise have, the City does hereby expressly reserve the following rights, powers and authorities : (a) To exercise its governmental powers now or hereafter to the full extent that these powers may be vested in or granted to the City. (b) To exercise any other rights, powers or duties required or authorized to the City under the State Constitution or the Charter . 117 NOTICES Every direction, notice or order to be served upon the grantee shall be sent by certified mail to its office located in the City. Every notice to be served upon the City shall be sent -40- by certified mail. The mailing of the notice, direction or order shall be equivalent to direct personal notice, direction or order and shall be deemed to have been given at the time of delivery. 118 SUCCESSORS AND ASSIGNS All the provisions of this chapter shall apply to the grantee, its successors and assigns , as they may be approved by the City in accordance with this chapter. 119 GRANTEE TO HAVE NO RECOURSE The grantee acknowledges by acceptance of the franchise that it has carefully read the terms and conditions of this chapter and is willing to and does accept all of the risks of the meaning of the terms and conditions, and agrees that, in the event of any ambiguity thereof, they shall be construed strictly against the grantee and in favor of the City. 120 ARBITRATION Matters which are expressly made arbitrable under provisions of a franchise issued pursuant to this Ordinance and permitted under law of Florida shall be determined by a panel of three arbitrators, one to be appointed by the grantee, one to be appointed by the City Commissioners and one to be selected by the other two arbitrators within five days of their selection. If, on the expiration of the period allowed therefor , the two arbitrators are unable to agree upon the selection of a third arbitrator, the arbitrator shall be chosen by the Chief Judge of the Fourth Judicial Circuit. The third arbitrator shall serve as chairman. The fees of the arbitrators shall be fixed by the -41 - Chief Judge. The expense of the arbitration, including the fees of the arbitration, including the fees of the arbitrators, shall be borne by the parties in such manner as the arbitrators provide in their award , but in no event will the City be obligated for more than half of the expenses. The determination of a majority of the arbitrators shall be binding on the parties to the extent permitted by laws of Florida. 121 MISCELLANEOUS PROVISIONS (a) It shall be the grantees responsibility to obtain any permits, licenses or any other authorizations required under the Ordinance Code or any other law. (b) All approvals , licenses or permits required to construct the system shall e applied for the grantee within sixty days of the grant of the franchise. (c) It shall be the grantees responsibility to obtain permission, which shall not be unreasonably denied, to us any facilities belonging to public utilities or other entities. (d) An agreement, undertaking or other instrument proposed to be entered into between the grantee and a subscriber shall contain full disclosure of the subscriber' s rights and obligations , including : (1 ) the number of channels offered and a listing of the channel and table of rate structure, to be provided to the subscriber upon execution of the agreement. (2) the complaint procedure, simply described in clear and legible type. (3) the city official responsible for receiving and -42- acting on complaints if satisfaction is not received from the grantee. (4) the office at City Hall where the complaints may be registered. (5) billing procedures , including those for delinquency procedures. 122 UNAUTHORIZED USE (a) No person shall intercept, descramble, decode, or receive or assist in intercepting, descrambling, decoding, or receiving any signals from the system unless specifically authorized to do so by grantee. "Assist in intercepting, descrambling, decoding or receiving" includes the manufacture of distributor (as the case may be ) for authorized reception of signals over a system. (b) No person shall tamper with, remove or injure any cable, wires, or other devices used with the system unless specifically authorized to do so by grantee. (c) No person shall intentionally deprive grantee of a lawful charge for cable service. (d) No person shall resell grantees cable service without grantees express, written consent. (e) Grantee may bring an action to restrain or enjoin a violation or threatened violation of this section and for damages resulting from the violation. Grantee shall be entitled to issuance of such an injunction upon a showing that a violation has occurred or will occur , without the need for demonstrating -43- irreparable injury, inadequacy of legal remedies or probability of recovery. The court shall award the greater of five hundred dollars ($500) or treble damages and reasonable attorney's fees to grantee if company prevails in an action hereunder. (f) A knowing violation of this section shall be punishable b a fine not to exceed five hundred dollars ($500) for each day of infraction. (g) If an unauthorized device designed to intercept, descramble, or decode a cable television signal is present on the premises or property occupied and used by a person, it is presumed that the person knowingly used the device to intercept, descramble or decode cable signals. If an unauthorized cable connection to intercept cable signals. If equipment of grantee which has been tempered with, changed, or modified is present on the premises or property occupied by a person, it is presumed that the person knowingly used the equipment to intercept, descramble or decode cable signals. (h) Grantee is expressly reserved its applicable rights and remedies available in law or in equity. -44-