Ordinance No. 40-92-18 v ORDINANCE NO. 40-92-18
411
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH
DELETING ORDINANCE NOS. 40-79-9 , 40-80-10,
40-80-11 , 40-85-12 , 40-85-13 , 40-87-15 , AND
40-89-16 IN THEIR ENTIRETY AND PROVIDING FOR THE
GRANTING OF A NON EXCLUSIVE FRANCHISE TO OPERATE A
CABLE TELEVISION SYSTEM IN THE CITY OF ATLANTIC
BEACH; SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANTING OF THE FRANCHISE; PROVIDING FOR CITY
REGULATION OF THE CABLE TELEVISION SYSTEM,
PROSCRIBING PENALTIES FOR VIOLATION OF THE
FRANCHISE PROVISIONS; AND ESTABLISHING GENERAL
RULES FOR THE APPLICATION PROCEDURES REQUIRED
BEFORE GRANTING A FRANCHISE, AND PROVIDING AN
EFFECTIVE DATE
SECTION 1 : SHORT TITLE
This ordinance shall be known and may be cited as the
"Continental Cablevision of Jacksonville Cable Television
Franchise Ordinance . "
SECTION 2 : RECITALS
WHEREAS, the City of Atlantic Beach is authorized to
grant one or more non-exclusive revocable franchises to
operate , construct, maintain and reconstruct a cable
television system within the City, and;
WHEREAS,, the City has determined that it is in the best
interest of the City and its residents to grant a franchise
to Continental Cablevision of Jacksonville.
NOW, THEREFORE, the City (hereinafter also known as th
Grantor) hereby grants to Continental Cablevision of
Jacksonville (hereinafter the Grantee) a cable television
franchise.
SECTION 3 : GRANT OF FRANCHISE
A. Grantee is hereby granted a non-exclusive revocable
franchise to construct, operate, maintain and reconstruct a
cable television system within the present and future limits
of the City.
B. Grantee acknowledges and accepts the right of
Grantor to issue a franchise and Grantee agrees it shall not
now or at any time hereafter challenge this right in any way
or in any City, State, or Federal Court.
C. In the event this Grantor permits a system to
operate within its limits on terms more favorable than those
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III Ordinance No . 40-92-18
previously granted in this franchise, such more favorable
terms shall be applicable to this franchise.
D. The effective date of the franchise shall be the
date that Grantee shall file with the City Clerk a written,
signed and notarized acceptance of all terms and conditions
of the franchise. The franchise shall be null and void
unless this acceptance shall be filed within thirty (30) days
after final passage of this ordinance.
E. The term of the franchise shall be thirteen (13)
years from the effective date until June 8 , 2005 , at which
time it shall expire and be of no force and effect, provided
that Grantor may renew the franchise in accordance with the
provisions contained herein as Section 10 .
SECTION 4 : DEFINITIONS
"Basic Broadcast Service" shall mean the lowest priced
level of service offered by the Grantee (on a primary outlet)
that includes local broadcast television stations.
4111 "Cable Plant" shall mean all distribution facilities
used in connection with the cable system.
"Developer" shall mean each party responsible for the
acquisition, ownership, construction, management, or
operation of a residential subdivision.
"Easement" shall mean the streets , highways , alleys,
rights-of-way, easements and riser paths of any subdivision
which are dedicated or to be dedicated to public utility use,
whether by formal instrument of dedication or by actual use
in the delivery of utility services to residents.
"Subdivison" shall mean:
1 . a real estate development;
2. a condominium, or cooperative, mobile home or
multi-unit apartment;
3. any other multiple unit dwelling
"Gross Revenues" shall mean all revenues received by
Grantee from Grantor ' s subscribers for cable services,
excluding Grantor' s proportionate share of: taxes or other
assessments collected for governmental authorities; bad debts
expense; subscriber deposits; copyright fees; programming
fees paid by Grantee for non-broadcast program services;
4110 installation and disconnection charges.
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Ordinance No. 40-92-18
"Street" shall mean the surface of and the space between
and below any public street, road, highway, freeway, lane,
path, public way, alley, court, sidewalk, boulevard, parkway,
drive or any easement or right-of-way now or hereafter held
by City, or dedicated for use by the City, use by the general
public , or use compatible with cable system operations.
"System" shall mean a system of antennas , cables , wires,
lines, fiber optic cables , towers , waveguides or other
conductors, converters , equipment or facilities, used for
distributing video programming to home subscribers , and/or
producing, receiving, amplifying, storing, processing, or
distributing audio, video, digital or other forms of
electrical signals to, from and between subscribers and other
users .
"Subscriber" shall mean any person or entity who
subscribes to a service provided by Grantee by means of the
System.
SECTION 5: GENERAL REQUIREMENTS
A. Grantee shall comply with the requirements of this
ordinance, and all material provisions of federal law. To
ensure faithful performance of the provisions of the
franchise, Grantee shall post a bond in the amount of
$25 , 000 . 00 which shall be retained by Grantor throughout the
franchise term.
B. Franchise Fee. The Grantee shall pay to the
Grantor quarterly three percent (3%) of its gross revenues,
based on a fiscal year January 1 through December 31 , derived
from the operation of the cable system as reimbursement for
the Grantor' s continuing regulatory cost of administration,
supervising and enforcing this franchise and as consideration
for the use of the Grantor' s streets , highways and public
grounds. The Grantee agrees to provide an annual sponsorship
donation to the City in the amount of $5 , 000 . 00 payable
October 1 of each year during the course of this ordinance.
C. Sections A and B may be renegotiated at the request
of the City should franchise fees for Jacksonville,
Jacksonville Beach or Neptune Beach rise above the franchise
fee contained in this Ordinance.
SECTION 6 : CONSTRUCTION REQUIREMENTS
A. Underground Construction. Grantee shall install
and maintain all cable plant of the cable television system
underground. Grantee shall notify the City sufficiently in
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Ordinance No . 40-92-18
advance of installation to permit City review and approval of
all cable routing and equipment location. These construction
costs shall be borne by Grantee.
B. Construction Requirements. Grantee shall make use
of existing utility conduits and other facilities available
to Grantor. Grantee may also install its own conduit and
facilities where necessary. All conduit and facilities
installed within the City shall be made available for
attachment or use by Grantee, at just and reasonable rates
applied to public utilities under the formula presently
established in 47 U. S.C. 5224 . Grantee shall make all
reasonable efforts to prevent damage to trees and other
vegetation that may be associated with construction. Grantee
shall replace and restore any disturbed area to original
condition.
C. Cable Plant Costs. Costs associated with
construction, installation and maintenance of the cable plant
shall be borne by the Grantee.
D. Right of Inspection. Grantor shall have the right
to inspect all cable plant and to make such tests as it shall
find necessary to ensure compliance with the terms of the
franchise and other pertinent provisions of law.
E. Service Area. Grantee shall provide service at
standard installation charges to all city residents in areas
with a density of thirty (30) or more dwelling units per
street-mile to all City residents within the corporate limit
of Atlantic Beach.
F. Line Extension Policy. Grantee shall extend
service at standard installation charges to low density areas
within six (6) months after reaching a density of thirty (30)
or more dwelling units per street-mile. Residents of lower
density areas may request service and shall be provided
service at installation charges based upon a pro-rata share
of incremental construction costs .
G. Access to Subdivisions . The Grantee has the right
to use the easements of any subdivision for the construction,
installation, maintenance and repair of a cable television
system and for the provision of cable services to subscribers
and no developer shall unreasonably interfere with the free
and complete exercise of the Grantee' s rights hereunder, or
enter into any arrangement with a third party to do so. The
Grantee shall have a private cause of action against a party
violating this provision for actual damages for injunctive
relief, for attorneys fees , and for statutory damages of
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Ordinance No . 40-92-18
$1 ,000 . 00 per day for every day of violation. Violation of
this provision is a contract in restraint of trade or
commerce and is subject to the penalties and remedies
provided in state law.
SECTION 7 : SYSTEM DESIGN AND PERFORMANCE REQUIREMENTS
A. Channel Capacity. The System shall be capable of
delivering signals at frequencies up to four hundred (400)
Megahertz (MHz) . Grantee shall monitor technological
developments in the cable communications industry and shall,
at request of City, consult on implementing such changes as
are required to meet substantial unfilled needs and interests
in commercially available programming where economically
feasible.
B. Technical Standards . The Federal Communications
Commission (FCC) Rules and Regulations, Part 76 , Subpart K
(Technical Standards) , shall apply.
C. Cablecasting Facilities. Grantee shall provide a
cablecasting studio within the service area, capable of
full-color local origination and access cablecasting. The
studio equipment list shall be as indicated in Exhibit 1 , or
equivalent. Grantee also shall provide mobile facilities for
access channel signal origination at various locations. The
mobile facilities shall include the items listed in Exhibit
2 , or equivalent.
D. Satellite Earth Stations. Grantee shall provide a
minimum of two (2) satellite earth stations.
E. Emergency Override. Grantee shall provide an
emergency audio override capability to permit Grantor to
interrupt and cablecast an audio message on all channels
simultaneously,except over local over-the-air broadcast
stations , in the event of disaster or public emergency.
F. Standby Power. Grantee shall provide standby power
for emergency operation of the cable television system for a
period of at least twenty-four (24) hours in the event
primary commercial power is interrupted.
G. Response to Service Interruptions. Grantee shall
provide ongoing preventative maintenance and respond to
service outages as efficiently as possible. The Grantee
shall provide notice to subscribers at least annually in a
form satisfactory to the Grantor of the method of obtaining a
credit for the service interruptions which are within the
control of the Grantee. In the event of interruption of
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Ordinance No . 40-92-18
regular subscriber service for twenty-four (24) consecutive
hours, except for acts beyond the control of Grantee, and
except in circumstances where prior approval of the City
Manager is obtained, Grantee shall provide a ten percent
(10%) rebate of monthly fees to the affected subscribers . In
the event of interruption of service for forty-eight (48)
consecutive hours except for acts beyond control of Grantee
and unless approval of the City Manager is obtained, Grantee
shall provide a twenty percent (20%) rebate of monthly fees
to the affected subscribers . Time under this provision shall
be counted from the hour the complaint is first reported to
the Grantee. It will be the responsibility of the Grantee to
inform the City Manager, in a written report, of the time,
cause and duration of outages during the preceding month.
The Grantee will not be liable for any inconvenience, loss ,
liability or damage resulting from any failure or
interruption of signal service directly or indirectly cause
by, or proximately resulting from, any circumstances beyond
its control. The Grantee is not responsible for the
operation, maintenance, service or repair of subscriber' s
television or radio set or sets , or VCR' s.
H. Performance Testing. Grantee shall perform all
tests necessary to determine compliance with the technical
standards of the Federal Communications Commission. Grantee
shall use its reasonable best efforts to notify subscribers
prior to the commencement of performance testing and
maintenance on the System.
I . Parental Control Lock. Grantee shall provide
subscribers, upon request, with parental control locking
feature that permits inhibiting the viewing of premium
channels.
SECTION 8 : SERVICE AND PROGRAMMING REQUIREMENTS
A. Services and Programming. Grantee shall provide
broad categories of video programming, which categories shall
include general entertainment programming, programming
primarily directed at children, public affairs , education and
news and sports programming.
B. Access Recapture . Grantee may combine partially
used access channels onto a single channel. Grantee may make
use of any unused access channels for its own purposes. Upon
six months notice, Grantor may reclaim use of such channel (s)
for transmission of access programming which cannot be
accommodated on other channels then in use for access
programming.
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Ordinance No . 40-92-18
C. Service to Public Agencies. Grantee shall provide
one cable outlet to government and educational facilities at
no installation charge and no monthly service rate. Grantee
shall provide at no charge a character generator to Grantor
to permit entry of informational material on a governmental
or community access channel.
SECTION 9 REMEDIES
A. Notice. Non-performance or violation by the
Grantee of any term or provision of this franchise shall
constitute a default. In such event, the Grantor shall send
a written default notice by certified mail, return receipt
requested, and the Grantee shall have sixty (60) days from
the receipt of said notice to correct or remedy the default.
If the Grantee corrects or remedies the alleged default
within the sixty (60) day period, then no default will have
been deemed to have occurred.
Grantee may within fifteen (15) days of receiving such
notice notify Grantor that there is a dispute as to whether a
violation has , in fact, occurred. Such notice by Grantee to
Grantor shall specify the matters disputed by Grantee.
Grantor shall hear Grantee' s dispute at the next regularly
scheduled City Commission meeting. If the Grantor
subsequently determines that a violation or non-performance
has occurred, then Grantee shall have thirty (30) days from
the date of Grantor' s written decision to cure said default.
B. Default. If Grantee fails to disprove or correct
the violation within the time period specified or, in the
case of a violation which cannot be timely corrected for
which Grantee has timely submitted a satisfactory plan, if
Grantee fails to implement the plan, then City may declare
the Grantee in default, which declaration must be in writing.
In the event that the City declares Grantee in default, the
City shall have the right to institute legal proceedings to
collect damages from the date of declaration of default, or
to exercise any other rights and remedies afforded the City
in law or equity, provided however, that the City may
institute revocation proceedings against Grantee only after
declaration of default.
SECTION 10 : FRANCHISE RENEWAL
A. Franchise Renewal. The rights and privileges
granted herein shall continue for thirteen (13) years from
the date of enactment of this Ordinance. One (1 ) year prior
to the end of the term, the term may be renewed for up to
additional ten (10) years if (1) Grantee has substantially
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Ordinance No . 40-92-18
complied with the material terms of the franchise and with
applicable law; (2) the quality of the Grantee ' s service has
been reasonable in light of community needs; (3) the Grantee
remains financially, legally and technically qualified; and
(4) the Grantee ' s renewal would reasonably meet the future
cable-related community needs and interests , taking into
account the cost of meeting such needs and interests .
B. For the purpose of renewal or modification of this
ordinance, the Grantor and the Grantee shall hold scheduled
review sessions within thirty (30) days of the fifth and
tenth anniversary dates of the effective date of the
franchise granted pursuant to this Ordinance and at a
mutually acceptable date prior to the renewal of this
franchise. The review sessions shall be open to the public
and announced in a newspaper of general circulation at least
five days before each session. Informal negotiations may
take place as deemed necessary by either parties.
SECTION 11 : APPROVAL OF TRANSFER
This franchise may not be assigned (except to an affiliate of
the Grantee) without the written approval of the Grantor,
whose approval shall not be unreasonably withheld.
SECTION 12 : MISCELLANEOUS
A. Severability. If any law, ordinance, regulation,
or court decision shall render any provision of this
franchise invalid, the remaining provisions of the franchise
shall remain in full force and effect.
B. Force Majeure . Prevention or delay of any
performance under this franchise due to circumstances, or
acts of God, shall not be deemed noncompliance with or a
violation of this franchise.
C. Entire Agreement. This franchise and all
attachments hereto represent the entire understanding and
agreement between the parties hereto with respect to the
subject matter hereof, supersedes all prior oral negotiations
between the parties , and can be amended, supplemented,
modified or changed only by an agreement in writing which
makes specific reference to the franchise or the appropriate
attachment and which is signed by the party against whom
enforcement of any such amendment, supplement, modification
or change is sought.
Passed by the City Commission on first reading this 8th
day of June , 1992.
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Ordinance No . 40-92-18
Passed by the City Commission on second and final reading
this 8th day of June ' 92 .
WI LIAM I . GULLIF� ' � , JR
Mayor/Presidin. Of' icer
ATTES T:
hAU EEN KING
City Clerk
Approved as to F. m and Correctness:
AlCr
Ak C. JENIF, ESQUIRE
Atto ,• -y
ORDINANCE #40-92-18
EXHIBIT ONE
STUDIO EQUIPMENT
Studio
(3) Three Sony studio camera ' s with studio configurations.
(3) Three Sony camera control units with camera adapters.
(3) Three Bogen tripods on dollys.
(1) One Intergroup video switcher.
(1) One Sony 5850/5800 3/4" edit pak with controller.
(1) One Chyron VP-2 graphics machine.
(1) One Tascam twenty channel audio mixer.
(1) One intercom system with IFB.
(1) One Hotronics TBC.
(1) One lightboard.
(1) Tascam cassette recorder/player.
(1) One Panasonic VHS recorder/player.
(4) Four Sony lavilier microphones.
ORDINANCE #40-92-18
EXHIBIT TWO
REMOTE PRODUCTION EQUIPMENT
Remote
(1) One Sony remote camera with camera plate.
(1) One Bogen tripod.
(4) Four NP1-A batteries.
(1) One Sony 3/4" portable recorder with power supply.
(1) One handheld microphone with mic cable.