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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 Page 2 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. Page Three 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 Page Four 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 Page Five 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 Page Six 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. Page Seven 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 Page Eight 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. Page Nine 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.