HomeMy WebLinkAbout2005 09 12 Public Hearing Item 414
COMMISSION AGENDA
ADD-ON
ITEM 414
Consent
Informational
Public Hearing X
Regular
September 12, 2005
Regular Meeting
~
Mgr. / Dept.
Authorization
REQUEST:
The City Attorney requests the Commission consider and adopt Ordinance 2005-28 on
Second and Final Reading, which proposes to adopt a new ten (10) year cable franchise agreement
with Bright House Networks, LLC.
PURPOSE:
The purpose of this agenda item is to adopt a new ten year cable franchise agreement with Bright
House Networks, LLC, a Delaware limited liability company.
APPLICABLE LAW AND PUBLIC POLICY:
1. Section 166.046, Florida Statutes establishing minimum standards for cable television
franchises.
2. Chapter 202, Communications Services Tax Simplification Law.
3. Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer
Protection and Competition Act of 1992, and the Telecommunications Act of 1996.
4. Section 4.14(4), Winter Springs Charter, requiring all franchises be adopted by ordinance.
Page 1 of 2
CONSIDERA TIONS:
1. Bright House Networks, LLC currently holds a franchise to provide cable services within the
City of Winter Springs.
2. Although the previous franchise expired on March 1, 2002, in accordance with Federal
law, the franchise shall continue on a month-to- month basis until such time a new franchise
is negotiated or the franchise is terminated. The City and Bright House Networks have
continued to operate on a month-to-month basis while a new franchise agreement was
completed for the City Commission's consideration.
3. Of recent interest to the City Commission is the ability of the City Commission to
possibly televise commission meetings. Paragraph 16.2(d) of the proposed agreement
provides that Bright House will allow such meetings to be televised and that Bright House
will provide the City a "switch" which technically permit the City to broadcast its
meetings on the government access channel.
4. Cable service is highly regulated by federal and state law.
5. Representatives of Bright House Networks will be in attendance at the Commission meeting
to address questions.
ST AFF RECOMMENDATION:
The City Attorney recommends approval of Ordinance 2005-28 and the attached franchise
agreement.
A TT ACHMENT:
1. Ordinance No. 2005-28.
2. Draft Franchise Agreement.
COMMISSION ACTION:
The City Commission has a history of approving cable franchises as set forth in the Recitals
of the proposed Franchise Agreement.
Page 2 of2
ORDINANCE NO. 2005-28
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, FLORIDA, ADOPTING A NEW
CABLE FRANCHISE AGREEMENT WITH BRIGHT HOUSE
NETWORKS, LLC, A DELAWARE LIMITED LIABILITY
COMPANY; PROVIDING FOR THE REPEAL OF PRIOR
INCONSISTENT ORDINANCES AND RESOLUTIONS,
SEVERABILITY, AND AN EFFECTIVE DATE.
WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS, City Ordinance No. 65, commonly referred to as the Cablevision Franchise
Ordinance, granted a non-exclusive Franchise to Seminole Cablevision, Inc., a Florida Corporation,
its successors and assigns, to operate and provide a television cable service to the citizens ofthe City
by utilizing public rights-of-way within the corporate boundaries ofthe City; and
WHEREAS, pursuant to City Ordinance No. 172, the Franchise was transferred to American
Television and Conununication Corporation, a Delaware corporation, d/b/a Cablevision of Central
Florida ("ATC"), which merged with and became a wholly-owned subsidiary of Time, Inc.; and
WHEREAS, in accordance with City Resolution No. 213, the City consented to the
assignment of rights, duties and obligations under the City's Cablevision Franchise Ordinance to
ATC, as a successor corporation and wholly-owned subsidiary of Time, Inc.; and
WHEREAS, in accordance with City Resolution No. 680, the City's Cable Television
Franchise Agreement was thereafter assigned from A TC to Time Warner Entertainment as
successors to the Franchise; and
WHEREAS, in accordance with City Resolution No. 2002-38, the City's Cable Television
Franchise Agreement was thereafter assigned from Time Warner Entertainment to Time Warner
Entertainment - Advance Newhouse Partnership ("TWEAN Subsidiary LLC") as successors to the
Franchise; and
WHEREAS, TWEAN Subsidiary LLC has changed its name to Bright House Networks,
LLC ("BHN"), a Delaware Limited Liability Company, on Aprill, 2003; and
WHEREAS, BHN has indicated its intent to provide cable system services to subscribers
City of Winter Springs
Ordinance 2005-28
Page I 00
within the City and has requested the issuance of a Franchise pursuant to the terms ofthat Franchise
Agreement, attached hereto as "Exhibit A," and fully incorporated herein by this reference; and
WHEREAS, the original Franchise was for an initial tenn of ten (10) years, expiring at
midnight of December 31, 1981, and was renewed for a period often (10) years as amended by City
Ordinance No. 511 to expire on December 31, 1991. An extension to the Franchise expired on
March 1, 2002, however, BHN has provided notice of renewal as provided in 47 U.S.C. ~ 546 and
agreed to continue to provide service under the terms and conditions of Ordinance No. 65, as
amended, until the new Franchise Agreement is adopted pursuant to this Ordinance; and
WHEREAS, the City deems it necessary to enter into a new Franchise Agreement with BHN
to take into account the new regulatory environment created by the enactment of the
Telecommunications Act of 1996, the Communications Services Tax Simplification Law pursuant
to Chapter 202, Florida Statutes, and recent court precedent concerning the local regulation of cable
franchises in order to ensure proper regulation of the local cable franchise, safeguard the use of City
rights-of-way and promote the quality and reliability of cable services offered to the citizens of
Winter Springs; and
WHEREAS, the City is authorized to grant one ormorenon-exc1usive, revocable, franchises
to construct, reconstruct, operate, and maintain a cable communications system within the City and
has negotiated a Franchise Agreement, pursuant to the Cable Communications Policy Act of 1984,
as amended, by the Cable Television Consumer Protection and Competition act of 1992, and the
Telecommunications Act of 1996; and
WHEREAS, the City Commission is required by section 4.14(4) of the City Charter to adopt
an ordinance granting, renewing or extending a franchise agreement; and
WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this
Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter
Springs.
NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOLLOWS:
Section 1.
reference.
Recitals. The foregoing recitals are hereby incorporated herein by this
Section 2. Adoption of Cable Franchise Agreement. The City Commission of the
City of Winter Springs, Florida hereby approves and adopts the Franchise Agreement entered into
by and between the City of Winter Springs, Florida and Bright House Networks, LLC, a Delaware
Limited Liability Company ("Exhibit A".
City of Winter Springs
Ordinance No. 2005-28
Page 2 of 3
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances
and resolutions in conflict herewith, are hereby repealed to the extent ofthe conflict.
Section 4. Not Incorporated Into Code. This ordinance shallnot be incorporated into
the Winter Springs City Code.
Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this Ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this Ordinance.
Section 6. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to City
Charter.
ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular
meeting assembled on the _ day of ,2005.
JOHN F. BUSH, Mayor
ATTEST:
ANDREA LORENZO-LUACES, City Clerk
Approved as to legal form and sufficiency for
the City of Winter Springs only:
ANTHONY A. GARGANESE, City Attorney
First Reading:
Second Reading:
Effective Date:
City of Winter Springs
Ordinance No. 2005-28
Page 3 of 3
FRANCHISE AGREEMENT
THIS AGREEMENT is made and entered into as of this day of
2005, by and between the City of Winter Springs, Florida, a Florida municipal corporation (the "City"),
whose address is 1126 East State Road 434, Winter Springs, Florida, 32708, and Bright House Networks,
LLC ("BHN"), Delaware limited liability company whose address is 2251 Lucien Way, Maitland, FL
32751.
RECITALS
WHEREAS, City Ordinance No. 65, commonly referred to as the Cablevision Franchise
Ordinance granted a non-exclusive Franchise to Seminole Cablevision, Inc., a Florida corporation, its
successors and assigns, to operate and provide a television cable service to the citizens of the City by
utilizing public rights-of-way within the corporate boundaries of the City; and
WHEREAS, pursuant to City Ordinance No. 172, the Franchise was transferred to American
Television and Communication Corporation, a Delaware corporation, d/b/a! Cablevision of Central
Florida ("ATC") which merged with and became a wholly-owned subsidiary of Time, Inc. otherwise
known as Franchisee; and
WHEREAS, in accordance with City Resolution No. 213, the City consented to the assignment of
rights, duties, and obligations under the City's Cablevision Franchise Ordinance to ATC, as a successor
corporation and wholly-owned subsidiary of Time, Inc.; and
WHEREAS, in accordance with City Resolution No. 680, the City's Cable Television Franchise
Agreement was thereafter assigned from A TC to Time Warner Entertainment as successors to the
Franchise; and
WHEREAS, in accordance with City Resolution No. 2002-38, the City's Cable Television
Franchise Agreement was thereafter assigned from Time Warner Entertainment to TWEAN Subsidiary,
LLC as successors to the Franchise; and
WHEREAS, TWEAN Subsidiary, LLC changed its name to Bright House Networks, LLC (BHN)
on April 1, 2003; and
WHEREAS, BHN has indicated its intent to continue to provide cable system services to
subscribers within the City and has requested the issuance of this Franchise pursuant to the terms hereof;
and
WHEREAS, the original Franchise was for an initial term of ten years, expiring at midnight of
December 31, 1981, and was renewed for a period of ten years as amended by City Ordinance No. 511 to
expire on December 31, 1991. An extension to the Franchise expired on March 1,2002, however, BHN
has provided notice of renewal as provided in 47 V.S.C. ~ 546 and agreed to continue to provide service
under terms and conditions of Ordinance No. 65, as amended, until this Agreement is adopted; and
WHEREAS, the City deems it necessary to enter into a new Franchise Agreement with BHN to
take into account the new regulatory enviromnent created by the enactment of the Telecommunications
Act of 1996, the Communications Services Tax Simplification Law pursuant to Chapter 202, Florida
Statutes, and recent court precedent concerning the local regulation of cable franchises in order to ensure
proper regulation of the local cable franchise, safeguard the use of City rights-of-way and promote the
quality and reliability of cable services offered to the citizens of Winter Springs; and
WHEREAS, the City is authorized to grant one or more non-exclusive, revocable, franchises to
construct, reconstruct, operate, and maintain a cable communications system within the City and has
negotiated this Agreement with BHN pursuant to the Cable Communications Policy Act of 1984, as
amended, by the Cable Television Consumer Protection and Competition Act of 1992, and the
Telecommunications Act of 1996; and
WHEREAS, the City has determined that it is in the best interest of the public's health, safety and
welfare for the City and its residents to enter into this Agreement with BHN; and
WHEREAS, the City has approved this Agreement pursuant to adoption by the City Commission
of Ordinance No. 2005-28.
NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants contained
herein, the parties do mutually agree as follows:
I. RECITALS.
Recitals Incorporated. Each and all of the foregoing recitals are hereby incorporated herein and
acknowledged to be true and correct. Failure of any of the foregoing recitals to be true and correct
shall not operate to invalidate this Agreement.
II. PURPOSE AND LEGISLATIVE FINDINGS.
2.1. Purpose.
The City finds that the development of cable communications has the potential of having
great benefit and impact upon the people of the City. Because of the complex and rapidly
changing technology associated with cable television, the City further finds that the public
convenience, safety and general welfare can best be served by exercising regulatory
powers which are vested in the City or such persons as the City shall designate. It is the
intent of this ordinance and subsequent amendments to provide for and specify the means
to attain the best possible public interest and public purpose in these matters and any
Franchise issued pursuant to this ordinance shall be deemed to include this finding as an
integral part thereof.
Further, it is recognized that cable communications systems have the capacity to provide
not only entertainment and information services to the City's residents, but can provide a
variety of interactive communications services to institutions and individuals. Many of
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these services involve City agencies and other public institutions, by providing
governmental, educational or health care communications.
For these purposes, the following goals underline the tenns contained herein:
(a) Communications services should be made available to all City residents, subject to
the requirements of Section 16.10.
(b) The cable communications system should be capable of accommodating both the
present and reasonably foreseeable future communications needs of the City and
should be improved and upgraded if necessary during the Franchise tenn so that the
new facilities necessary for the operation of this system shall be integrated to the
maximum extent possible with existing facilities.
The cable communications system authorized by this Agreement shall be
responsive to the needs and interests of the local community, and shall provide a
wide diversity of infonnation sources and services to the public.
(c) The education and governmental needs for access to the cable communications
system should be met.
2.2 Legislative Findings.
In considering whether to grant a cable television Franchise within the City to any person,
the City has considered all relevant facts and matters, both procedural and substantive, in
arriving at its decision including, but not limited to, the following:
(a) The economic impact upon private property within the City;
(b) The need for a cable television Franchise within the City, if any;
(c) The capacity of public rights-of-way to accommodate the cable system;
(d) The present and future use of the public rights-of-way to be used by the cable
system;
(e) The potential disruption to existing users of the public rights-of-way to be used by
the cable system and the result of inconvenience which may occur to the public;
and
(f) The financial ability of the Franchisee to perfonn and other societal interests,
including the dissemination of infonnation through the cable system and the
exercise of the rights of free speech under the First Amendment of the United
States Constitution and the Florida Constitution.
III. DEFINITIONS.
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When used in this Agreement, the following words shall be defined as indicated below, unless the
context clearly indicates otherwise. Terms used in this Agreement but not defined below which
are definedin the Act, shall have the meaning set forth in 47 D.S.C. ~521 et. seq. as amended by
the Telecommunications Act of 1996.
3.1 "Access Channel" shall mean any channel on a cable system set aside without charge by
the Franchisee for non-commercial, local access programming relating to educational and
local governmental use which has been recognized and approved as such by the City.
3.2 "Act" shall mean the Communications Act of 1934, as amended by the Cable
Communications Policy Act of 1984, as further amended by the Cable Television
Consumer Protection and Competition Act of 1992, codified in 47 US.C. ~ 521 et seq.,
and as amended by the Telecommunications Act of 1996, and as these acts may hereinafter
be amended.
3.3 "Agreement" shall mean this Franchise Agreement as may be amended by agreement of
both parties pursuant to Sec. 21.2.
3.4 "Applicant" shall mean any officer, agent, employee or representative seeking an
approval, grant, revision, amendment, transfer or renewal under this Agreement.
3.5 "Cable System" means a closed transmission path and associated signal generation,
reception and control equipment and other communications equipment including, but not
limited to, any headend, antenna, wire, cable, line, tower, pole, amplifier, converter, and
fiber optic line, that is designed to. provide cable service which includes video
programming and other services and which is provided to multiple subscribers within a
community, but such term does not include: (a) a facility that serves only to retransmit the
television signals of one or more television broadcast stations; (b) a facility that serves
only subscribers in one or more multiple unit dwellings under common ownership, control,
or management, unless such facility or facilities uses any public rights-of-way; (c) a
facility of a common carrier which is subject, in whole or in part, to the provision of Title
II of the Act, except that such facility shall be considered a cable system to the extent such
facility is used in the transmission of video programming directly to subscribers; or (d) any
facilities of any electric utility used solely for operating its electric utility systems.
3.6 "Channel" means a frequency band, which is capable of carrying either one standard
video signal, a number of audio, digital or other non-video signals or some combination of
such signals.
3.7 "City Manager" shall mean that person who is appointed by the City Commission of the
City of Winter Springs, Florida, pursuant to Article V of the City Charter. For the
purposes of this Agreement, the "City Manager" shall include his or her designee.
3.8 "Complaint" means an indication from a subscriber of a problem with any aspect of cable
service when it results in a service call or written indication from a subscriber of a problem
with any aspect of cable service.
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3.9 "Communications Services Tax" shall mean the tax provided in the Communications
Services Tax Simplification Law pursuant to Chapter 202, Florida Statutes, as that law has
been and may hereinafter be amended or renumbered, and any other ordinance or
resolution setting the amount for the local CST that may be adopted by the City
Commission for the City of Winter Springs and not inconsistent with the City Charter that
may be excised and collected by the City or Franchisee on behalf of the City.
3.10 "Converter" means an electronic device which converts signals to a frequency not
susceptible to interference within the television receiver of a subscriber, and any channel
selector which permits a subscriber to view signals delivered at designated converter dial
locations at the set or by remote control.
3.11 "Days" means calendar days unless otherwise specified.
3.12 "Facilities and Equipment" shall include, but not be limited to, wires, cable, conductors,
ducts, conduits, vaults, manholes, trenches, amplifiers, converters, appliances, attachments,
poles and other property and equipment which are located in the public rights-of-way.
3.13 "FCC" shall mean the Federal Communication Commission and any legally appointed or
elected successor.
3.14 "Fiscal Year" shall mean a calendar year beginning January 1st of each year.
3.15 "Franchise" shall mean an initial authorization or renewal thereof, voluntarily entered into
by the Franchisee and issued by the City, whether such authorization is referred to as a
Franchise, permit, license, ordinance, resolution, contract, certificate, agreement, or
otherwise, which authorized the construction or operation of a cable system in the City.
All Franchises shall be non-exclusive. Any such authorization, in whatever fonn granted,
shall not mean or include any Franchise or permit required for the privilege of transacting
and carrying on a business within the City as required by other code provisions and
ordinances of the City.
3.16 "Franchise Area" means all of the territory within the incorporated City, and such
additional territory as may be from time to time annexed into the City. The Franchisee
shall be notified in writing of any annexations to the City.
3.17 "Franchise Fee" means the percentage as specified in this Agreement, of the Franchisee's
gross annual revenues derived from the operation of the cable system in the City and which
is payable in exchange for the rights granted by this Franchise.
3.18 "Franchisee" shall mean Bright House Networks, LLC ("BHN"), and the lawful
successor, transferee, or assignee of such person.
3.19 "Gross Annual Revenues" means all receipts arising from, attributable to providing cable
service, or in any way derived directly or indirectly from the operation of the cable system
in the Franchise area, including but not necessarily limited to fees of any kind whatsoever
charged to subscribers of the cable system, including but not limited to monthly subscriber
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fees, service charges, late fees, leased access fees, installation charges, service protection
or installation warranty fees, change-in-service fees, disconnect and reconnect fees, fees
derived and collected from access and origination channels, all revenues received by the
Franchisee for Pay-Per- View, leased channels, premium channels, pay television, and
equipment sales, lease or rental and other cable services provided over the cable system in
the City of Winter Springs to subscribers and any revenues derived from the leasing of
cable or fiber optic lines and other transmission devices and equipment for the provision of
cable services. Gross annual revenues shall also include any revenues derived from
advertising allocable to the City based upon the subscriber base of the City divided by the
subscriber base of the cable system, the quotient of which shall be multiplied by the cable
system's total advertising revenue to determine the allocable revenue stemming from
advertising and any revenues from home shopping channels or other sources allocable to
the City based upon the subscriber base in the City divided by the subscriber base of the
cable system and any revenues derived from cable service provided on the system. The
phrase "gross annual revenues" shall not include any fees or taxes which are imposed
directly on any subscriber thereof by any governmental unit or agency, and which are
collected by the Franchisee on behalf of that entity. Nor shall the phrase include any debts
for service or equipment owed but uncollected by the Franchisee or any payment to an
affiliate or parent company of Franchisee for programming or transmission capacity where
such payment is treated by Franchisee as an expense. Gross annual revenues shall be used
to determine the basis for computing an alternative Franchi:;e Fee in the event Chapter 202,
Florida Statutes, is repealed or otherwise deemed unconstitutional as more specifically set
forth in Article IX of the Agreement.
3.20 "Installation" shall mean the connection of the cable system from feeder cable to the
subscribers'terminal(s).
3.21 "Person" shall mean any individual, cOlporation, partnership, association, joint stock
company, trust, joint venture, organization or legal entity of any kind, any lawful trustee,
successor, assignee, transferee or personal representative thereof.
3.22 "Public Right-or-Way means the surface, the air space above the surface, and the area
below the surface of any public street, sidewalk, bridge, waterway, utility easement, or
other public property, including public utility easements dedicated for compatible uses as
set forth in Title 47 D.S.C. ~ 541(a)(2) in and over which shall entitle the City and the
Franchisee to the use thereof for the pUtpose of installing and maintaining the Franchisee's
cable television system. No reference herein, or in any Franchise, to the "public right-of-
way" shall be deemed to be a representation or guarantee by the City that its title to any
property is sufficient to permit its use for such pUtpose, and the Franchisee shall, by its use
of such terms, be deemed to gain only such rights to use property in the City as the City
may have the undisputed right and power to give.
3.23 "Subscriber" shall mean a person or legal entity lawfully using or receiving cable
television on a particular cable system from a Franchisee.
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3.24 "Subscriber base" shall mean the total number of a Franchisee's residential and non-
residential subscribers within the City. For purposes of determining the number of
subscribers in a multi-user subscription, the Franchisee shall count each unit included
within a contract for subscription services as one subscriber.
3.25 "Sunshine State One-Call of Florida, Inc." shall mean the not-for-profit corporation
created by Section 556.103, Florida Statutes, to administer the provisions of the
Underground Facility Damage Prevention and Safety Act set forth at Chapter 556, Florida
Statues.
3.26 "Total Disruption of Service" means the inability of any subscriber to receive
Franchisee's cable transmission on one or more channels due to signal failure,
malfunction, or to receive said transmission in such poor quality as to make viewing
impracticable to a reasonable subscriber.
3.27 "Transfer" means the disposal by the Franchisee, directly or indirectly, by gift,
assignment, voluntary sale, merger, consolidation or otherwise, of twenty percent (20%) or
more at one time of the ownership or controlling interest in the cable system, or thirty-five
percent (35%) cumulatively over the tenn of the Franchise of such interests to any
corporation, partnership, limited partnership, trust or association, or person or group of
persons acting in concert or a change in control. Transfer shall not include any transfer or
assignment to a person controlling, controlled by, or under the same common control as
the Franchisee.
IV. GRANT OF FRANCHISE.
4.1 Grant of Franchise. BHN is hereby granted a cable Franchise, subject to the terms and
conditions of this Agreement. Pursuant to this Franchise, the Franchisee may construct,
operate, and maintain a cable system in, under, over, along, across or upon the public
rights-of-way within the City for the purpose of reception, transmission, collection,
amplification, origination, distribution or redistribution of audio, video, digital, microwave,
data, or other signals and is intended solely for the provision of cable services. Any
Franchisee electing to provide additional telecommunication services over the cable system
shall satisfy all state and federal regulations pertaining to the provision of such services.
In exercising rights pursuant hereto, the Franchisee shall not endanger or interfere with the
lives of persons, interfere with any structures, buildings, or facilities of the City, any public
utility, or any other person pennitted to use the public rights-of-way, nor unnecessarily
hinder or obstruct the free use of the public rights-of-way. The grant of this Franchise does
not establish priority for use over other present or future permit, license, or utility franchise
holders or the City's own use of the public rights-of-way and any such privilege or right
conveyed to a Franchisee shall be subordinate to the existing use of a public right-of-way.
In addition, this Agreement does not authorize the provision of cable services to any
private property owner without express consent of such owner unless otherwise authorized
by law.
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All rights granted for the construction, reconstruction, installation, maintenance, and
operation of the cable system shall be subject to the continuing right of the City to require
such reconstruction or relocation of the cable system in the public rights-of-way as shall, at
the sole discretion of the City, be in the public interest. To the extent that other users of the
public rights-of-way are compensated for moving their facilities, the Franchisee shall also
be compensated for moving its facilities.
4.2 Franchise Not Exclusive. The grant of this Franchise shall be non-exclusive and shall not
affect the right of the City to grant to itself or any other person the right to: build, operate,
or own a cable system; or occupy or use the public rights-of-way for the construction,
reconstruction, maintenance, and operation of a cable system or for any pmpose
whatsoever. No privilege or power of eminent domain is bestowed on the Franchisee by
the grant of this Franchise.
4.3 Event of Conflict. In the event of conflict between the terms and conditions of the City
Code and this Agreement, this Agreement shall control. In all events, the Franchisee shall,
to the extent not inconsistent with this franchise agreement, comply with all laws,
ordinances and regulations enacted by the City pursuant to its lawful police and regulatory
powers as authorized by law and shall comply with all federal and state laws pertaining to
the provision of cable systems. Nothing in the Franchise shall be deemed to waive the
requirements of the various codes of the City regarding permits, taxes, fees to be paid, or
manner of construction.
V. EFFECTIVE DATE OF FRANCHISE; TERM.
5.1 Effective Date. The effective date of this Franchise shall be . Any
prior Franchise granted to the Franchisee, is hereby superseded and of no further force and
effect; provided, however, vested rights relating to billings and the City's rights to accrued
Franchise Fees or the collection of any communications services tax shall be enforceable
and not be affected thereby.
5.2 Term. The term of this Franchise shall be for a period often (10) years from the effective
date unless sooner terminated as provided for in this Agreement. The Franchise shall
terminate on
5.3 Renewal Term. The Franchise shall be renewed under the provisions of the federal Cable
Act.
VI. FRANCHISE OPERATION.
6.1 Use of Public Rights-of-Way. For the purpose of operating and maintaining a cable
system in the City, the Franchisee may erect, install, construct, repair, replace, reconstruct
and retain in, on, over, under, upon, across and along the public streets and ways within the
City its facilities and equipment as are necessary to the operation of the cable system;
provided, however, that the Franchisee complies with all design, construction, safety, and
performance provisions contained in this Agreement and any other provisions of City
Code.
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All privileges prescribed by this Franchise shall be subordinate to any prior lawful
occupancy of the public rights-of-way, and the City reserves the right to reasonably
designate where a Franchisee's facilities are to be placed within the public rights-of-way.
6.2 Right of Condemnation Reserved. Nothing herein shall limit any right the City may have
to acquire by eminent domain or otherwise any property of Franchisee; provided, however,
that any such acquisition shall be for a price that values the Franchisee's property as
allowed by law.
6.3 City's Right to Perform Public Works. Nothing in this Agreement shall be in hindrance
to the right of the City or any governmental authority to perform or carry on, directly or
indirectly, any public works or public improvements of any description. Should the cable
system in any way interfere with the construction, maintenance or repair of such public
works or public improvements, the Franchisee shall, at its own cost and expense, to the
extent other users of the rights-of-way do so at their cost and expense, protect or relocate
its cable system, or part thereof, as reasonably directed by the City officials or, any
governmental authority.
6.4 Emergency Removal of Plant. If at any time, in case of fire, emergency, or disaster in the
City, it shall become necessary in the reasonable judgment of the City to cut, move, or
relocate any of the Franchisee's facilities and equipment or appurtenances of the cable
system, the City shall have the right to do so at the sole cost and expense of Franchisee.
However, the City shall make all reasonable efforts to contact the Franchisee prior to any
cutting or moving of wires, cables, amplifiers, appliances, or appurtenances of the cable
system, and if possible, in the City's reasonable discretion, to allow the Franchisee to
perform any cutting or moving of the cable system wires, cables, amplifiers, appliances, or
appurtenances. The Franchisee shall bear all costs of reinstallation, repair, and other costs
resulting from or arising out of the emergency cutting or removal of the cable system;
provided, however that in the event it is determined that an emergency, fire, or disaster did
not exist, then the cost of such removal and reinstallation shall be borne by the City.
6.5 Removal or Abandonment. Upon termination of the Franchise, absent right of renewal
and at the request of the City, the Franchisee shall remove its cable system from the public
rights-of-way and shall restore any property, public or private, to its original condition
prior to the installation, erection, or construction of the cable system. Restoration of City
property, including, but not limited to, the public rights-of-way, shall be in accordance
with the directions and specifications of all affected departments and agencies of the City,
and all applicable law. The Franchisee shall accomplish such restoration at its expense. If
such removal and restoration is not completed within twelve (12) months after notice by
the City delivered in writing to Franchisee, all of the Franchisee's property remaining in
the affected public rights-of-way shall, at the option of the City, be deemed abandoned and
shall, at the option of the City become the property of the City. In the event the Franchiseeifails or refuses to remove its system or to satisfactorily restore all areas to as reasonably
close a condition as existed prior to the original construction of the system, the City, at its
option, may perform such work and collect the cost thereof from the Franchisee.
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6.6 Time Is of the Essence. Whenever this Agreement shall set forth any time for any act to
be performed by or on behalf of the Franchisee, such time shall be deemed to be of the
essence, and any failure of the Franchisee to perform within the time allotted shall be
sufficient ground for the City to invoke any applicable provision of the City Code or this
Agreement. Failure of the Franchisee to complete construction of the cable system, initiate
a system upgrade or other specific obligation by a specified date pursuant to this
Agreement shall be considered a material breach and constitute grounds for revocation and
termination of the Franchise as set forth in Article X.
6.7 No Waiver of Rights. No course of dealing between the Franchisee and the City nor any
delay on the part of the City in exercising any rights hereunder shall operate as a waiver of
any such rights of the City or acquiescence in the actions of the Franchisee in
contravention of the City's rights, except to the extent expressly waived by the City in
writing or expressly provided for in the Franchise.
VII. TRANSFER OF OWNERSHIP OR CONTROL.
7.1 Transfer of Franchise. This Franchise shall be sold, transferred, leased, assigned or
disposed of, including but not limited to, by forced or voluntary sale, merger,
consolidation, receivership or other means pursuant to federal regulations. The Franchisee
shall provide written notice to the City of the transfer. In reviewing such transfer request,
the City shall consider factors including, but not limited to, the transferee's experience in
multi-channel video programming, its record of technical and customer service, its record
of financial responsibility, compliance with local, federal and state regulations. No
application for a transfer shall be granted unless transferee agrees in writing that it will
assume and accept all obligations and liabilities of the Franchisee under this Agreement.
7.2 Transfer Threshold. The Franchisee shall promptly notify the City of any actual or
proposed change in, or transfer of, or acquisition by any other party of, control of the
Franchisee.
7.3 City Approval. Every change, transfer, or acquisition of control of the Franchisee shall
make the Franchise subject to cancellation unless and until the City shall have consented
thereto in writing subject to applicable federal law. For the purpose of determining
whether it may consent to such change, transfer, or acquisition of control, the City may
inquire without limitation into the legal, fmancial, character, and technical qualifications of
the prospective transferee or controlling party, and the Franchisee shall assist the City in
obtaining all required information. Failure to provide all reasonable information requested
by the City as part of said inquiry shall be grounds for denial of the proposed change,
transfer or acquisition of control, subject to applicable federal law.
7.4 Signatory Requirement. Any approval by the City of transfer of ownership of the
Franchise shall be contingent upon the prospective assignee becoming a signatory to the
Franchise.
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7.5 No Waiver/Release for Transfer. Approval by the City of a transfer of the Franchise does
not constitute a waiver or release of any of the rights or remedies of the City under this
Agreement, whether arising before or after the date of the transfer.
VIII. MODIFICATION OR RENEWAL OF FRANCHISE.
8.1 Modification. Any request by the Franchisee for a modification of this Franchise shall be
in writing and shall include the following information at a minimum: I) the specific
modification or modifications requested; and 2) the justification for the modification,
including the impact of the requested modification on the cable system and subscribers,
and the fmancia1 impact if the modification is approved or disapproved. A request to
modify the Franchise shall also include a statement as to whether the modification is
sought pursuant to Title 47 U.S.C. ~ 545 and a demonstration by the person seeking the
modification that the modification meets the standards set forth under 47 US.C. ~ 545. An
affidavit or sworn declaration of an authorized officer certifying the truth and accuracy of
the information supporting the request for a modification of the Franchise and that such
modification is consistent with the Act and any other applicable federal, state, and local
laws.
8.2 Renewal. Renewal of this Franchise shall be conducted in a manner consistent with 47
US.C. ~ 546. Upon consideration of the renewal, City shall determine the level of
services needed to meet the City's cable-related needs and interests, including the need for
state -of -the-art technology to ensure the quality of the Franchise. Failure of Franchisee
to initiate the renewal process in a timely fashion shall be treated as an informal request to
renew and shall be at the discretion of the City in accordance with 47 US.C. ~ 546(h).
The City may deny a request for renewal pursuant to federal law.
IX. COMMUNICATIONS SERVICES TAX/FRANCHISE FEES.
9.1 Communications Services Tax. Franchisee shall pay the Communications Services Tax
provided in the Communications Services Tax Simplification Law pursuant to Chapter
202, Florida Statues, as such law has been and may hereinafter be amended or renumbered,
and any City ordinance or resolution adopted pursuant to the City's Charter and the
authority granted within Chapter 202, Florida Statutes. In the event that Chapter 202,
Florida Statutes, or any portion thereof affecting the ability of the City to collect the
communications service tax is repealed, held to be unconstitutional, invalid, or
unenforceable, Franchisee, as compensation for the privilege of operating the Franchise for
a cable system pursuant to this Agreement, shall pay to the City a Franchise Fee of five
percent (5%) of the Gross Annual Revenues. If, in the future, applicable law including but
not limited to the Act, as amended from time to time, allows a greater Franchise Fee, the
parties shall meet and confer to negotiate with respect to the fee. Thereafter, the Franchise
Fee may be amended by mutual agreement of the parties at any time. The City shall be
furnished a fully-certified statement of said payment by a certified public accountant or
financial officer of the Franchisee, reflecting the total amounts of gross annual revenues
from subscribers within the City and of the above charges and computations for the period
covered by the payment within ninety (90) days after the end of each year when Franchise
Fees are paid directly to the City. Sections 9.2 through 9.13 and any references to
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Franchise Fees and/or gross revenues shall not be in effect as long as the Franchisee pays
the Communications Services Tax or similar tax or fee.
9.3 Franchise Fees in Addition to Other Taxes or Payments. In the event that a Franchise
Fee is to be paid pursuant to this Agreement, payment of the Franchise Fee made by the
Franchisee to the City shall not be considered in the nature of a tax, but, to the extent
consistent with applicable law, shall be in addition to any and all taxes of general
applicability which are now or may be required hereafter to be paid by any federal, state, or
local law.
9.4 Acceptance by the City. Subject to applicable law, no acceptance of any payment by the
City shall be construed as a release or as an accord and satisfaction of any claim that the
City may have for further or additional sums payable as a communications services tax or
Franchise Fee under this Agreement or for the performance of any other obligation of the
Franchisee.
9.5 Late Fees. In the event that a Franchise Fee payment is not received by the City on or
before the due date set forth above, or is underpaid, the Franchisee shall pay a late charge
of eighteen percent (18%) per annum of the amount of the unpaid or underpaid Franchise
Fee payment, provided, however, that such rate does not exceed the maximum amount
allowed under Florida law, and that the Franchisee shall not be responsible for paying
interest on delinquent Franchise Fees resulting from erroneous database information
provided by the City. Any interest and/or late charge paid by the Franchisee is intended to
be a charge incidental to the enforcement of a Franchise within the meaning of 47 U.S.C.
~542(g)(2)(D), and may not be deducted from the Franchise Fee imposed by this
Agreement. Furthermore, the City may invoke all rights and remedies available under
applicable law and this chapter.
9.6 Quarterly Filing. A Franchisee shall file with the City, on a quarterly basis with the
payment of the Franchise Fee, a financial statement setting forth the computation of gross
revenues used to calculate the Franchise Fee for the preceding quarter and a detailed
explanation of the method of computation showing the revenue derived from each category
of the Franchisee's operations. The statement shall be certified by a certified public
accountant or a Franchisee's financial officer. The Franchisee shall bear the cost of the
preparation of such financial statements.
9.7 City's Right to Inspection. The City, at its discretion, shall have the right to inspect the
Franchisee's Gross Annual Revenue reports and records, to audit, and to recompute any
fee amounts. Inspections, audits or recomputations may be performed either by the City or
an independent firm selected by the City and qualified for such purposes. No audit of the
Franchisee's records relating to Gross Annual Revenues shall take place later than thirty-
six (36) months following the close of each of the Franchisee's fiscal years. Audits that
result in payment of four percent (4%) or more of Franchise Fees during the audit period,
shall be at the expense of the Franchisee. Any additional amount due to the City as a result
of the audit shall be paid within thirty (30) days of notice by the City, unless the
Franchisee disputes the results of the audit. The Franchisee agrees to meet with the City
and will attempt in good faith to resolve any differences. Thereafter, the additional amount
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due shall be subject to payment within thirty (30) days after said additional amount is
detennined to be due by the Franchisee and the City.
The City shall provide the Franchisee with a description of all property annexed into the
City at the time of each annexation. Should such annexation infonnation not be provided to
the Franchisee and a discrepancy arise in reported Franchise Fees as a result, the
Franchisee shall not be found in non-compliance of this Agreement.
9.8 Payments Due in Event of Termination or Expiration. In the event that the Franchisee
continues the operation of any part or all of the cable system beyond the termination,
revocation, or expiration of the Franchise granted herein, it shall continue to pay to the
City the Franchise Fee or Communications Services Tax, whichever is applicable, in the
manner set forth in this Agreement. This section shall not be construed to authorize the
operation of the cable system beyond the termination, revocation, or expiration of this
Franchise.
9.9 Alternative Fee Contingencies. In the event that the Franchisee's obligation to pay a
communications services tax is held invalid by a decision of any court of competent
jurisdiction or due to the actions of any legislative body, the Franchisee shall pay to the
City, pursuant to the Cable Act, a Franchise Fee of five percent (5%) of the Gross Annual
Revenues.
9.10 Other Fees and Taxes. To the extent that any federal or state law or regulation may now
forbid the City from assessing any type of fee or tax, upon repeal, modification, or
judicial/administrative interpretation of said law or rule that would permit the City to
assess said fee or tax, the City shall have the right to assess said fee or tax to the full extent
authorized by law; provided, that the City shall first notify the Franchisee. Upon such
occurrence, the parties shall meet and confer within (90) days of notice from the City to, in
good faith, negotiate Franchise provisions to implement the collection of said fee or tax.
9.11 Termination. If for any reason whatsoever the Franchise terminates, the Franchisee shall
file with the City, within sixty (60) calendar days of such termination or when operations
cease, whichever occurs later, a certified financial statement reflecting the gross revenues
received by Franchisee since the conclusion of the previous fiscal year. Adjustments to
any Franchise Fee owed to the City shall be made upon review of such statement.
Franchisee shall be prohibited from conducting any transaction or making such
arrangements which have the effect of evading payment of any fee or tax owed to the City
under this Agreement.
9.12 Prohibited Transactions. Any transaction or arrangement which has the effect of evasion
of payment of Franchise Fees (for example, by non-collection of revenues, non-reporting
of revenues, collection of revenues by parents, affiliates or subsidiaries, bartering, or any
other means) from the operation of the Franchisee's cable system to provide cable service
in the City is strictly prohibited.
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9.13 Applicability of Franchise Fee. The provisions of this section IX related to Franchise
Fees shall apply to the extent the City may lawfully impose a Franchise Fee.
X. FORFEITURE OR REVOCATION.
10.1 Grounds for Revocation. The City reserves the right to revoke any Franchise granted hereunder
and rescind all rights and privileges associated with the Franchise in the following circumstances,
each of which shall represent a default and breach of this Agreement:
(a) If the Franchisee shall default in the performance of any of the material obligations under
this Agreement;
(b) If the Franchisee shall fail to provide or maintain in full force and effect the liability and
indemnification coverage or the performance bond as required herein;
(c) If the Franchisee shall violate material provisions of any orders or rulings of any regulatory
body having jurisdiction over the Franchisee relative to this Agreement, and Franchisee
fails to begin cure within thirty business (30) days of notice from the City and to complete
cure within a reasonable time after notice, as determined by the City;
(d) If the Franchisee practices any fraud upon the City or cable subscribers;
(e) If the Franchisee is grossly negligent, as defined by general law , in maintaining any of the
customer service standards provided in this Franchise;
(f) If the Franchisee becomes insolvent, unable or unwilling to pay its debts or is adjudged
bankrupt;
(g) If the Franchisee fails to restore service City-wide after ninety-six (96) consecutive hours
of interrupted service, except when approval of such interruption is obtained from the City
or is permitted pursuant to this Agreement, as provided "in Section 10.2 of this Agreement
or when caused by circumstances outside the control of the Franchisee pursuant to Section
10.2;
(h) If the Franchisee makes a material misrepresentation of fact in the application for or
negotiation of the Franchise or any extension or renewal thereof on which the City has
explicitly relied; and
(i) If the Franchisee shall fail to pay the Franchise Fee or the communications services tax in
the manner provided in this Agreement.
10.2 Effect of Circumstances Beyond Control of Franchisee. The Franchisee shall not be declared at
fault or be subject to any sanction under any provision of this Agreement in any case in which
performance of any such provision is prevented for reasons beyond the Franchisee's control. For
the purposes of this Agreement, causes or events beyond the Franchisee's control shall include,
without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural
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disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints
imposed by order of a governmental agency or court.
A default shall not be deemed to be beyond the Franchisee's control if committed by a corporation
or other business entity in which the Franchisee holds a controlling interest whether held directly
or indirectly, when such fault is due to Franchisee's financial inability to perform or comply,
economic hardship, or misfeasance, malfeasance or nonfeasance by any of the Franchisee's
directors, officers, employees or contractors or agents.
10.3 Procedure Prior to Revocation. The City shall notify the Franchisee in writing of the exact
nature of the alleged violation constituting grounds for termination and give the Franchisee thirty
(30) calendar days, or such greater amount of time as reasonably required to correct such
violations or to present facts and arguments to refute the alleged violation. If after such time the
City then concludes that there is a basis for termination, it shall notify the Franchisee thereof. If
within the designated time the Franchisee does not remedy and/or put an end to the alleged
violation, the City, after a public hearing before the City Commission where all interested parties
may be heard, may suspend or revoke the Franchise, if it determines that such action is warranted.
The Franchisee shall not be held in default nor suffer any penalties where non-compliance or
default is caused by an event beyond the Franchisee's control, as stated in Section 10.2. The
Franchisee shall have the right to review by a court of competent jurisdiction upon the City
Commission's determination of non-compliance.
XI. REGULATORY AUTHORITY.
11.1 Authority. The City reserves the right to exercise the maximum authority, as may at any time be
lawfully permissible, to regulate the cable system, the Franchise and the Franchisee. Should
applicable legislative, judicial or regulatory authorities at any time permit regulation not presently
permitted to the City, the City may without the approval of the Franchisee engage in any such
additional regulation as may then be permissible, whether or not contemplated by this Agreement
or the City Code, including without limitation, regulation regarding Franchise Fees,
communications services tax, other taxes, programming, rates charged to subscribers, consumer
protection, or any other similar or dissimilar matter. The City agrees to meet and confer with the
Franchisee prior to enacting new regulatory ordinances affecting this Agreement.
11.2 Right of Inspection of Cable Facilities. The City shall have the right to inspect, in a timely
manner and in the accompaniment of a representative of the Franchisee, all Franchisee facilities
and equipment or installation work in the public rights of way performed subject to the provisions
of this Agreement as it shall find necessary to ensure compliance with the terms of this
Agreement, the City Code and any other applicable provisions of local, state or federal law,
including the Act.
11.3 City Regulation. To the extent that federal or state law or regulation may now, or as the same
may hereafter be amended by legislation, administrative regulation or decision, or judicial
determination, authorize the City to regulate the rates for any particular service tiers, service
packages, equipment, or any other services provided by Franchisee, the City shall have the right to
exercise rate regulation to the full extent authorized by law, or to refrain from exercising such
regulation for any period of time, at the sole discretion of the City. The City shall provide
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advance notification to the Franchisee of its intention to exercise any such regulation and written
notification when such ordinance is adopted. However, failure to so provide advance notification
to the Franchisee or written notification when such ordinance is adopted shall not be a basis upon
which to declare this Agreement in breach or to invalidate the ordinance.
XII. PERFORMANCE BONDING; ALTERNATIVES.
12.1 Performance Bond. The Franchisee shall obtain and maintain during the entire term of any
Franchise and any extensions and renewals thereof, at its cost and expense, and file with the City,
a corporate surety bond in the amount of fifty thousand dollars ($50,000) to guarantee the faithful
performance by the Franchisee of all of its obligations provided under this Agreement and the City
Code. Such bond must be issued by a surety. Alternatively, the Franchisee shall obtain and
continuously maintain an unexpired irrevocable letter of credit, which shall at all times be in
possession of the City. The form and contents of such performance bond or letter of credit shall
be reasonably acceptable to the City. The letter of credit shall be released only upon expiration of
the Franchise.
12.2 Conditions. The performance bond or letter of credit shall be issued upon the following
conditions:
(a) The performance bond shall be issued by a surety licensed and authorized by the State of
Florida to do business as a surety in the State of Florida. The irrevocable letter of credit
shall be issued by a bank or savings and loan association acceptable to the City, located in
the State of Florida, and authorized to do business in this state by either the State of Florida
Comptroller or the United States Government. The letter of credit shall name the City as
the beneficiary.
(b) There shall be recoverable by the City, jointly and severally from the principal and surety
or the financial institution that has issued the letter of credit, any and all fines and
liquidated damages due to the City and any and all damages, losses, costs and expenses
suffered or incurred by the City resulting from the failure of the Franchisee to: faithfully
comply with the provisions of the City Code and the Franchise; comply with all orders,
permits and directives of any City agency or body having jurisdiction over its acts or
defaults; or pay any claims, liens, fees, or taxes due the City which arise by reason of the
construction, operation, maintenance or repair of the cable system. Such losses, costs and
expenses shall include, but not be limited to, attorneys' fees and other associated expenses.
(c) The total amount of the bond or letter of credit shall be forfeited as a liquidated damage
paid to the City in the event:
(1) The Franchisee abandons the cable system or fails to initiate or complete
construction of the cable system as specified in any Franchise agreement or
any extension thereto;
(2) The Franchise is terminated by reason of the default of the Franchisee.
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12.3 Reduction of Bond/Letter of Credit. Upon written application by the Franchisee, the City may,
at its sole option, permit the amount of the bond or letter of credit to be reduced for the term of
this Agreement or periods of time, when it is determined by the City Commission to be in the
public interest. Upon written application by the Franchisee, the City may, at its sole option,
permit the terms of the requirements of the performance bondlletter of credit to be altered for the
term of this Agreement or periods of time, when it is determined by the City Commission to be in
the public interest.
12.4 Use of Performance Bond and Letter of Credit. Prior to drawing upon the letter of credit or the
performance bond for the purposes described in this section, the City shall notify the Franchisee in
writhing that payment is due, and the Franchisee shall have thirty (30) days from the receipt of
such written notice to make a full and complete payment. If the Franchisee does not make the
payment within thirty (30) days or demonstrate a reason acceptable to the City why such action
should not be taken, the City may withdraw the amount thereof, with interest and penalties, from
the letter of credit or the performance bond. Within three (3) days of a withdrawal from the letter
of credit or the performance bond, the City shall send to the Franchisee, by certified mail, return
receipt requested, written notification of the amount, date and purpose of such withdrawal.
12.5 Replenishment of Letter of Credit and Performance Bond. No later than thirty (30) days after
mailing to the Franchisee by certified mail notification of a withdrawal pursuant to Section 12.4
above, the Franchisee shall replenish the letter of credit and/or performance bond in an amount
equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the
letter of credit and/or performance bond shall constitute a material breach of this Agreement.
12.6 Non-renewal, Alteration, or Cancellation of Letter of Credit or Performance Bond. The
performance bond and letter of credit required herein shall be in a form satisfactory to the City
which approval shall not be unreasonably withheld and shall require thirty (30) days written notice
of any non-renewal, alteration or cancellation to both the City and the Franchisee. The Franchisee
shall, in the event of any such cancellation, alteration, or non-renewal notice, obtain, pay all
premiums for, and file with the City, written evidence of the issuance of replacement bond or
policies within thirty (30) days following receipt by the City or the Franchisee of any notice of
cancellation, alteration, or non-renewal.
12.7 Inflation. To offset the effects of inflation, the amount of the bond or letter of credit provided for
herein is subject to a reasonable increase at the end of every three (3) year period of the Franchise,
applicable to the next three (3) year period, at the sole discretion of the City.
12.8 Default. In the amount sufficient to compensate the City for its damages, the performance bond
and letter of credit provided pursuant to this section shall become the property of the City in the
event that the Franchise is cancelled or terminated by reason of the default of the Franchisee.
12.9 Right to Require Replacement of Bonds or Letter of Credit. If the City becomes aware of the
financial condition of any bonding or financial institution issuing a performance bond or letter of
credit as required herein and said financial condition is reasonably deemed by the City to
jeopardize the collateral posted with the City, the City may, at any time, require that any such
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bond or letter of credit be replaced with such other bond or letter of credit consistent with the
requirements set forth in this section.
12.10 Insurance for Contractor and Subcontractors. The Franchisee, or its subcontractors, shall
provide coverage for any contractor or subcontractor involved in the construction, installation,
maintenance, removal, or operation of the cable system by either obtaining the necessary
endorsements to its insurance policies or requiring such contractor or subcontractor to obtain
appropriate insurance coverage consistent with this Franchise and appropriate to the extent of its
involvement in the construction, installation, maintenance, removal, or operation of Franchisee's
cable system.
XIII. LIABILITY AND INSURANCE.
13.1 Certificate of Insurance. Not later than thirty (30) days after the effective date of the Franchise
and thereafter continuously throughout the duration of the Franchise and any extensions or
renewals thereof, the Franchisee shall furnish to the City a copy of the certificate of insurance for
insurance required under this section. Failure to furnish said certificate of insurance in a timely
manner shall constitute a material breach of the Franchise Agreement. At the City's request, the
Franchisee shall furnish a certificate of insurance which are in effect from time to time.
13.2 No Liability Limit. Neither the provisions of this article or any damages recovered by the City
hereunder, shall be construed to limit the liability of the Franchisee for damages under this
Franchise.
13.3 Endorsement All insurance policies maintained pursuant to this Franchise Agreement shall
contain an endorsement in substantially the following form:
(a) It is hereby understood and agreed that this insurance policy may not be modified or
canceled nor the intention not to renew be stated until thirty (30) days after receipt by the
City of Winter Springs, City Manager, by certified mail, of a written notice of such
intention to cancel or not to renew.
(b) Each policy shall require that thirty (30) days prior to cancellation of or a material change
in the policy a written notice thereof shall be delivered to the City Manager.
(c) Insurers shall have no right of subrogation or recovery against the City, it being the
intention that the insurance policies shall protect the City and shall be primary coverage for
all losses covered by the policies.
13.4 State Institution. All insurance policies pursuant to a Franchise agreement shall be written by
companies authorized by the Florida Insurance Commissioner to do business in the State of
Florida as an insurance company.
13.5 Named Insured. The City shall be named as an additional insured for all insurance policies
written pursuant to a Franchise.
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13.6 Changes in Policy Limits. To offset the effects of inflation and to reflect changing liability limits,
all of the coverage, limits, and amounts of the insurance provided for herein are subject to
reasonable increases at the end of every three (3) year period of the Franchise, applicable to the
next three year period, at the City's discretion.
13.7 Commercial General Liability Insurance. The Franchisee shall maintain throughout the term of
the Franchise, general liability insurance insuring the Franchisee in the minimum of:
(a) $5,000,000 for property damage, single limit; and
(b) $5,000,000 single limit liability for personal bodily injury or death to anyone person; and
Such general liability insurance must include coverage for all of the following: comprehensive
form, premises operations, explosion and collapse hazard, underground hazard,
products/completed operations hazard, contractual insurance, broad form property damage, and
personal injury.
13.8 Automobile Liability Insurance. The Franchisee shall maintain throughout the term of the
Franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the
minimum amount of:
(a) $5,000,000 single limit liability for bodily injury and consequent death per occurrence; and
(b) $1,000,000 for property damage per occurrence.
13.9 Worker's Compensation. The Franchisee shall maintain throughout the term of the Franchise,
worker's compensation insurance coverage in the minimum amount required by the State of
Florida and the employer's liability requirements, whichever is greater, for worker's compensation
claims, as amended from time to time.
XIV. INDEMNIFICATION.
14.1 Indemnification. Franchisee shall, at is sole cost and expense, indemnify, hold harmless, and
defend the. City, its officials, boards, commissions, commissioners, attorneys, agents, and
employees, against any and all claims, suits, causes of action, proceedings, judgments for damages
or equitable relief, and costs and expenses arising out. of the construction, maintenance or
operation of its cable system, the conduct of Franchisee's business in the City, or in any way
arising out of Franchisee's enjoyment or exercise of the Franchise granted hereunder. Such
indemnification shall not extend to any claims caused solely by the misconduct or negligence of
the City, its officials, boards, commissioners, agents or employees. This provision includes, but is
not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim,
suit or proceedings; claims arising out of copyright infringements or a failure by Franchisee to
secure consents from the owners, authorized distributors, or providers of programs to be delivered
by the cable system; claims arising out of 47 D.S.C. ~ 558; and claims against Franchisee for
invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or
infringement of any copyright, trademark, trade name, service mark or patent, or of any other right
19
of any person. Nothing in this section shall prohibit the City from participating in the defense of
any litigation by its own counsel where the City is a named party.
14.2 Condition. The foregoing indemnity is conditioned upon the City giving the Franchisee prompt
notice of any claim or the commencement of any action, suit or other proceeding covered by the
provisions of this section. Nothing herein shall be deemed to prevent the City from requesting
from the Franchisee permission to cooperate with the Franchisee and participate in the defense of
any litigation by its own counsel where the City is not a named party at its own costs and expense.
xv. DESIGN AND CONSTRUCTION PROVISIONS.
15.1 Authorization to Commence Construction and Application Procedures. To the extent
generally required of other users of the public rights-of-way, prior to the installation or erection of
any towers, poles or conduits, other than minor or emergency excavation and maintenance, the
Franchisee shall first submit to the City for review a concise description of the facilities proposed
to be maintained, erected, removed, or installed, including engineering drawings, if required by the
City. No erection or installation of any tower, pole, underground conduit, or fixture, excavation of
other than a minor or emergency nature shall be commenced by any person until proper permits
have been received from the City.
15.2 City Maps. The City does not guarantee the accuracy of any maps showing the horizontal or
vertical location of existing substructures or utilities.
15.3 Construction Bond.
(a) To the extent generally required of other users of the public rights-of-way, prior to any
significant cable system construction, upgrade, rebuild or other such work in the public
rights-of-way, the City Manager may, at his sole discretion, require the Franchisee to
establish in the City's favor a construction bond equal to the estimated cost of construction.
The exact amount of the bond will be determined on a case-by-case basis, and shall also be
at the sole reasonable discretion of the City Manager.
(b) In the event the Franchisee fails to complete the cable system construction, upgrade,
rebuild or other work in the public rights-of-way in a safe, timely and competent manner in
accordance with the provisions of this Franchise, then there shall be recoverable from the
principal or surety of the bond, any damages or loss suffered by the City as a result,
including the full amount of any compensation, indemnification or cost of removal or
abandonment of any property of the Franchisee, plus a reasonable allowance for attorneys'
fees, up to the full amount of the bond.
(c) The construction bond shall be subject to the reasonable approval of the City Manager and
the City Attorney, and shall provide that: "This bond may not be canceled, or allowed to
lapse, until sixty (60) days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent to cancel or not to
renew."
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(d) The rights reserved by the City with respect to any construction bond established pursuant
to this section are in addition to all other rights and remedies the City may have under this
Agreement or at law or equity, and no action, proceeding or exercise of a right with respect
to such bond shall effect any other right or remedy of the City.
(e) The Franchisee may request that the bond be reduced in amount or eliminated sixty (60)
days after completion of the cable system construction, upgrade, rebuild or other work in
the public rights-of-way and payment of all construction obligations of the cable system.
The decision to reduce or eliminate the bond will be in the sole discretion of the City .
Should the City decide to reduce or eliminate the bond, the City may subsequently require
the reestablishment of the bond amount for any subsequent construction, upgrade, rebuild
or other work in the public-rights-of-way.
15.4 Compliance with Construction and Technical Standards. The Franchisee, through the cable
system, shall provide uniform, strong signals which are free from any significant distortion and
interference as required by FCC. The cable system shall be designed, constructed, operated and
maintained for 24-hours-a-day continuous operation. The system shall produce, for reception on
subscribers' receivers which are in good working order, either monochrome or color pictures
(providing the receiver is color capable) which are free from any noticeable interference or
distortion which would cause any material degradation of video or audio quality as required by
FCC and including any such standards as hereinafter may be amended or adopted by the FCC or
other applicable Federal or State law pertaining to digital transmission, High-definition television,
or other advanced technologies. To the extent required by FCC, rules and applicable federal and
state law, the Franchisee shall perform, as its sole expense, performance testing of the cable
system and shall provide such results to the City upon request within 10 business days of the
City's requesting the results of such tests.
15.5 Quality of Construction. Construction, installation, reconstruction, operation, and maintenance
ofthe cable system shall be performed in an orderly and workmanlike manner, in accordance with
then current technological standards. The Franchisee shall utilize its best efforts to have all cables
and wires installed, parallel with electric and telephone lines. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for aesthetic and engineering considerations.
Nothing herein shall preclude underground installation.
15.6 Use of Public Rights-of-Way.
(a) To the extent generally required of other users of the public rights-of-way, any public
rights-of-way excavated or otherwise disturbed by the Franchisee shall be done under the
supervision and direction of the City under permits issued for work by the City, and shall
be done in such a manner as to give the least inconvenience to the citizens of the City.
Franchisee shall, at its own cost and expense, and in a manner approved by the City,
replace and restore any such rights-of-way to as good a condition as before the work was
done, and shall also prepare, maintain and provide to the City full and complete plats,
maps and records showing the exact locations of its facilities located within the public-
rights-of-way, as many be required under the City's permitting procedures.
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(b) Except to the extent required by law, the Franchisee shall, at its expense, protect, support,
temporarily disconnect, relocate, or remove, any of its property when required by the City
by reason of traffic conditions, public safety, street construction, street resurfacing or
widening, change of street grade, installation of sewers, drains, water pipes, or any other
type of governmental improvement; provided, however, that the Franchisee shall, in any
such case have the privilege of abandoning any property in place.
(c) Franchisee shall, at the request of any person holding a building permit issued by the City,
temporarily raise or lower its wires, cables, etcetera to permit construction or maintenance
on private and public property. The expense of such temporary removal or raising or
lowering of wires shall be paid by the person requesting same, and the Franchisee shall
have the authority to require such payment in advance, except in the case where the
requesting person is the City, in which case no such payment shall be required. The
Franchisee shall be given not less than seven (7) business days advance notice to arrange
for such temporary cable or wire changes.
(d) All safety practices required by law shall be followed during construction, maintenance,
repair and operation of a cable system. A Franchisee shall not place facilities, equipment
or fixtures where they will interfere with any pre-existing gas, electric, telephone, water,
sewer or other utility facilities, so as to obstruct or hinder in any manner the various
utilities serving the residents of the City or their use of any street or any other public
rights-of-way.
(e) Franchisee shall, at al1times: .
(1) Install and maintain its wires, cables, fixtures and other equipment in accordance
with the requirements of any applicable building code or electrical safety code, and
in such manner that they will not interfere with any installations of the City.
(2) Keep and maintain in a safe, suitable, substantial condition, and in good order and
repair, all structures, lines, cables, equipment, and connections in, over, under, and
upon the public-rights-of-way.
(f) The City shall encourage, to the extent feasible, that a public utility and the Franchisee
cooperate in opening up trenches and making such trenches available to all parties with the
understanding that the costs of opening and refilling of such trenches will be shared
equitably by all users of such trenches. The Franchisee shall at all times comply with the
requirements of the Trench Safety Act codified in Sections 553.60 through 553.64, Florida
Statutes.
(g) Regarding permits and compatible easements, the following requirements shall apply:
(1) It shall be the responsibility of the Franchisee to obtain all necessary written
permits and approvals of governmental agencies and easement holders prior to
beginning installation. It shall also be its responsibility to determine any conflicts
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of its proposed installation with the facilities or equipment of other easement
holders or beneficiaries.
(2) The Franchisee shall join and maintain a continuous membership in Sunshine State
One-Call of Florida, Inc. and use its services prior to each installation.
(3) The Franchisee shall comply with the provisions of 47 U.S.C. ~ 541(A).
(4) Underground installations in compatible easements shall be in accordance with the
National Electrical Safety Code.
(5) Delivery equipment including pedestals, amplifiers and power supplies installed or
worked on by the Franchisee shall be marked by the Franchisee with the name of
the Franchisee. All existing pedestals and amplifiers of the cable operator shall be
marked within eighteen (18) months after the effective date of this ordinance.
(6) Upon request from the City, the Franchisee shall make available to the City a set of
as-built plans of the installation in compatible easements at the Franchisee's office.
15.7 Underground Installation.
(a) All installations shall be underground in those areas of the City where public
utilities providing telephone and electric service are underground at the time of
installation or where City Code requires underground installation. Unless the City
Code provides otherwise, in areas where either telephone or electric utility facilities
are above ground at the time of installation, the Franchisee may install its cable
system above ground; provided, that at such time as those facilities are required to
be placed underground by the City or are placed underground, the Franchisee shall
likewise place its cable system underground without additional cost to the City so
long as the Franchisee is provided with access to the open trenches at the time of
excavation. In the event that the City shall lawfully elect to enforce such
underground requirements, the Franchisee shall be compensated as other users of
the public rights-of-way are compensated for moving their facilities. Where not
otherwise required to be placed underground by this Franchise, the Franchisee's
system shall be located underground at the request of the adjacent property owner,
provided that the excess cost over the aerial location shall be borne by the property
owner making the request. Any and all cables to be constructed under any paved
street or alley, or other public right-of-way shall be accomplished by the jacking of
an underground pipe or conduit, including the use of the jack and bore method and
directional bore application. And under no circumstances shall cable be constructed
under a paved street, alley or other public way by digging or excavating from the
surface of the paved street without the approval of the City. All cable passing
under the street shall be installed in conduit.
(b) Prior to performing any underground construction, the Franchisee shall use its best
efforts to locate, in advance, any water, sewage, gas, electric, drainage or other
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utility (including other cable systems) lines, including compliance with Chapter
556, Florida Statues, to the extent applicable. Where any damages or alterations
occur to said utility lines in the public right-of-way as a result of construction,
reconstruction, maintenance, or removal of the cable system by the Franchisee, its
agents or independent contractors, the cost of such repairs including all services
and material will be the responsibility of the Franchisee, providing any information
relied upon by the Franchisee as to the location of any underground utility line was
accurate.
15.8 Construction Notice. Except with regard to routine maintenance and emergency circumstances,
the Franchisee shall give appropriate notice to the City and residents within a reasonable period of
time of proposed construction, reconstruction, excavation, laying or stringing of cable under
streets or on poles, but in no event shall such notice be given less than five (5) business days
before such commencement.
15.9 Interference with Persons, Public and Private Property, and Utilities. The Franchisee's
system and facilities, including poles, lines, equipment and all appurtenances, shall be located,
erected and maintained so that such facilities shall:
(a) Not endanger or interfere with the health, safety or lives of persons;
(b) Not interfere with any improvements which the City, county or state may deem proper to
make;
(c) Not interfere with the free and proper use of public rights-of-way, alleys, bridges,
easements or other public property, except to the minimum extent possible during actual
construction or repair;
(d) Not interfere with the rights and reasonable convenience of private property owners,
except to the minimum extent possible during actual construction or repairs; and
(e) Not obstruct, hinder or interfere with any existing gas, electric, water, wastewater,
reclaimed water, stonnwater drainage, telephone, or other utility facilities located within
the City.
15.10 Restoration to Prior Condition. In case of any disturbance of pavement, sidewalk, driveway or
other surfacing, the Franchisee shall, at its own cost and expense, replace and restore all paving,
sidewalk, driveway, landscaping, or surface of any street or alley disturbed, in as good a condition
as before said work was commenced and in a good workmanlike, timely manner in accordance
with standards for such work set by the City or the governmental entity having operational and
maintenance responsibility for the public right-of-way.
Unless otherwise approved by the City Manager, such restoration shall be undertaken within no
more than ten (10) business days after the damage is incurred and shall be completed as soon as
possible thereafter.
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15.11 Private Property. The Franchisee shall promptly repair or replace all private property, both real
and personal, damaged or destroyed, as a result of the construction, installation, operating or
maintenance of the cable system at its sole cost and expense.
15.12 Tree Trimming. The Franchisee may trim trees or other vegetation to prevent branches, leaves or
roots from touching or otherwise interfering with its wires, cables, or other structures as follows;
(a) Except for emergencies, all tree/root trimming or pruning to be conducted on public
property or public rights-of-way shall be done only in accordance with City policies;
(b) All trimming or pruning shall be at the expense of the Franchisee and shall be perfonned in
accordance with applicable City Codes;
(c) Any and all persons engaged by the Franchisee to provide tree trimming or pruning
services shall be deemed, for purposes of the Franchise, an employee or agent of
Franchisee when engaged in such activity, and in no event shall such person be deemed to
be an employee of the City; and
(d) The Franchisee shall use its best efforts to obtain the prior permission ofthe owner of any
privately owned trees or other vegetation before it prunes or trims same.
15.13 Erection, Removal, and Common Use of Poles. No poles shall be erected by the Franchisee
without prior approval of the City with regard to location, height, type and any other pertinent
aspect and in accordance with City Code. Such approval shall not be unreasonably withheld.
However, no location of any pole of the Franchisee shall be deemed a vested right, and such poles
shall be removed, relocated or modified by the Franchisee at its own expense whenever the City
determines that the public safety and convenience would be enhanced thereby. The City may also
require that such poles shall be removed, relocated or modified by the Franchisee at the City's
expense for other reasons. In the event that a pole owned by other than the Franchisee is to be
moved either at the request or direction of the City and Franchisee is making use of said pole, the
Franchisee shall remove, relocate or modify its lines, wires, appurtenance, and equipment attached
to said pole at Franchisee's expense at the request of the City and be compensated as others users
of the rights-of-way are compensated for moving their facilities. The City shall have the right,
during the term of the Franchise, to install and maintain on reasonable terms and conditions upon
the poles owned by the Franchisee, any wire and pole fixtures that do not unreasonably interfere
with the cable system operations of the Franchisee.
15.15 Cumulative Leakage Index ("CLI") Monitoring. The Franchisee shall comply with FCC
requirements with regard to CLI monitoring on an on-going basis. The results of said monitoring
shall be made available to the City upon written request.
15.16 Cable System Upgrade. Franchisee shall keep the City advised of future upgrades to the cable
system. To the extent technically and economically feasible, the Franchisee shall implement new
technologies when made available and deemed commercially reasonable to fully satisfy its
obligations and duties under this Agreement.
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XVI. SERVICE TO SUBSCRIBERS.
16.1 Franchisee shall use its best efforts to ensure the consistent provision of quality cable services to
all subscribers serviced by the Franchise.
16.2 Programming.
(a) Inform Subscribers. To the extent required by applicable law and regulations, the
Franchisee shall inform subscribers, via written notice of proposed programming changes
at least thirty (30) days in advance of said change.
(b) Subscriber Electronic Equipment. The Franchisee shall abide by all FCC regulations
pertaining to providing a cable system compatible with subscriber equipment.
(c) Emergency Override. The Franchisee shall comply with FCC BAS requirements.
(d) Government Access. Upon request of the City, the Franchisee shall provide one local
government access channel for non-commercial local government use by the City. The
Franchisee shall provide the City with a switch that will enable the City to provide City
programming and/or access County Government programming. Some customers may not
receive the Winter Springs government access channel due to the fact that the technical
design of the cable system does not precisely correspond to municipal boundaries. The
connection at City Hall will be provided within approximately 120 days following the
City's request. The government access channel shall be part of the basic cable service
provided by the Franchisee. Any City programming must meet technical standards.
16.3 Minimum Facilities and Services.
(a) Franchisee's cable system shall have a minimum capacity of not less than fifty (50) video
channels available.
(b) Upon request of the City, Franchisee shall provide access channels, facilities and other
support for educational and/or governmental use consistent with this Agreement.
(c) Franchisee shall provide leased access channels as required by federal law.
(d) Franchisee shall, within thirty (30) days of written request by the City, provide one outlet
of basic and CPST cable television service at no cost and without installation or monthly
service charge to the following facilities within the City when its lines have been extended
to within one hundred twenty five (125) feet of the named facilities: all public schools
(excluding home schools), City police departments, City Hall, City fire departments, and
other buildings owned and occupied by the City and used by the City for municipal
purposes. The Franchisee shall charge no more than its time and material costs for
providing any additional service outlets to such facilities.
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(e) To the extent required by federal law, Franchisee shall make available to its subscribers
equipment capable of decoding closed circuit captioning information for the hearing
impaired. The Franchisee may impose a reasonable charge for such equipment.
16.4 Privacy and Billing.
(a) Subscriber privacy. The Franchisee shall at all times protect subscriber infonnation to
the full extent required under Title 47 V.S.C. ~ 551 and other applicable federal and state
laws and shall not make the provision of cable services contingent upon the disclosure of
subscriber information without a subscribers explicit consent to provide such information
nor shall Franchisee assess any charges or penalties against a subscriber for failure to
provide such information. Franchisee shall not disclose any subscriber information in its
possession to any third parties without the express authorization from the subscriber to
whom such information pertains unless such disclosure is consistent with the provisions of
Title 47 U.s.C. ~ 551(2)(c).
(b) Negative Option Billing. Negative option billing, as prohibited by federal law, is
prohibited under this Agreement. Franchisee shall not charge any subscriber for any cable
services that have not been expressly authorized or requested by subscriber. A subscriber's
failure to respond to an offer of cable services shall not constitute and authorized request
for such services.
16.5 Consumer Services. The Franchisee shall abide by the Federal customer service standards set out
in FCC Section 76.309, as amended from time to time.
(a) Business Office. The Franchisee shall establish, operate and maintain a business office
within Seminole County. The purpose of the facility will be to: receive inquiries, requests
and complaints concerning all aspects of the cable system; and receive payment of
subscribers' service charges. Business office hours will be those hours during which most
similar businesses in the community are open to serve customers, including some evening
hours at least one night per week and/or some weekend hours. Under nonnal operating
conditions, the business office shall maintain a staff adequate to process complaints,
requests for installation, service or repairs, and other business in a timely and efficient
manner. "Normal operating conditions," as that term is used in this section, includes all
conditions except times of natural disasters, power outages, civil disturbances, telephone
network outages, severe or unusual weather conditions, and includes, but is not limited to,
other similar types of circumstances beyond the control of the Franchisee.
(b) Telephone Service. The Franchisee shall have a listed toll-free telephone number for
service calls available twenty-four (24) hours a day, seven (7) days a week and for
consumer information, complaints, and installation/disconnection of service available
during regular business office hours. Said telephone number(s) shall be made available to
the general public by the telephone information operator by publishing it in the local
telephone directory and by prominently printing it on every subscriber's monthly cable
bill. The Franchisee shall provide a telephone number to the City and utility companies to
enable the City or utility companies to reach the Franchisee in case of emergency on a
twenty-four (24) hours a day, seven (7) days a week basis. The number shall be a
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telephone number where City or utility company officials will be able to reach an
appropriate Franchisee official as quickly as possible. Telephones will be answered within
thirty (30) seconds and transitions of calls from one person to another person shall be made
within thirty (30) seconds, ninety percent (90%) of the time, measured on a quarterly basis.
The caller shall receive a busy signal less than three percent (3%) of the time.
Under normal operating conditions, the Franchisee shall begin working on service
interruptions promptly and in no event later than 24 hours after the interruption becomes
known. The Franchisee shall begin actions to correct other service problems the next
business day after notification of the service problem.
A technician may cancel an appointment with a subscriber after the close of business on
the business day prior to the scheduled appointment, but only if the Franchisee's technician
first contacts the subscriber to notify them of the cancelled appointment. The appointment
will be rescheduled at the convenience of the subscriber. If the installer is running late and
will not be able to keep the service appointment as scheduled, the subscriber will be
contacted, and the appointment will be rescheduled, at the subscriber's convenience.
16.6 Disconnection and Downgrades.
(a) Upon notice to Franchisee, a subscriber may terminate any cable service at any time.
(b) When receiving a request to terminate, Franchisee shall promptly disconnect from the
Franchisee's cable system or downgrade the service as requested. Charges for any
voluntary disconnection, and any downgrade charges shall be in conformance with
applicable law. Franchisee shall not impose any charge for service delivered after the
requested date of disconnection or downgrade, provided the request is made at least twenty
four (24) hours prior to the requested date of disconnection or downgrade. As provided for
under federal law, subscribers may request a downgrade at no charge if made within thirty
(30) days of a rate increase.
(c) Any security deposit or other funds due a subscriber that disconnects or downgrades
service shall be returned to the subscriber no later than either the next billing cycle, or
thirty (30) days, whichever is earlier from the date disconnection or downgrade was
requested, except where the subscriber does not permit the Franchisee to recover its
equipment, in which case the amounts owed shall be paid to subscriber no later than thirty
(30) days or the next billing cycle after the date the equipment was recovered by
Franchisee, whichever is earlier.
(d) Franchisee may not disconnect a subscriber's cable service for non-payment unless:
(1) The subscriber is delinquent in payment for cable service; and
(2) A separate, written notice of impending disconnection, postage pre-paid, has been
provided to the subscriber at the subscriber's billing address, at least twenty (20)
days prior to the designated date on which service is to be disconnected. The
amount subscriber must pay to avoid disconnection shall be stated on the notice;
and
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(3) The notice of delinquency and impending termination may be part of a billing
statement, provided that said notice is conspicuously stated; and
(4) The subscriber has failed to pay, after notice, the amounts owed to avoid
disconnection by the date of disconnection and no pending inquiry exists regarding
the bill.
(e) Franchisee may immediately disconnect a subscriber if:
(1) The subscriber has damaged or destroyed or unlawfully tampered with the
Franchisee's cable system;
(2) The subscriber is not authorized to receive cable service, or is facilitating or aiding
or abetting the unauthorized receipt of cable service by others; or
(3) Subscriber-installed or attached equipment is resulting in signal leakage in
violation of FCC rules, provided the subscriber has failed to correct immediately
upon notice from Franchisee.
(f) After disconnection, the Franchisee shall restore cable service after the subscriber provides
adequate assurance that it has ceased the practices that led to disconnection, and has paid
all fees and charges, including any reconnect fees and all amounts owed the Franchisee for
services unlawfully received and for damage to its cable system or equipment.
16.7 Service Outages and Rebates.
(a) Major Outages. The Franchisee will begin working on a "major outage" promptly no later
than twenty-four (24) hours after the interruption becomes known. A "major outage" is
defmed as total disruption of service to a majority of subscribers within the corporate
boundaries of the City.
(b) Other Outages. The Franchisee must begin actions to correct "other outages," not
considered a "major outage", the next business day after receiving actual or constructive
notification of the outage. The repair of such outages shall take into consideration the
safety and security precautions for all cable systems personnel. "Other outages" shall
include, as a minimum, total disruption of service to at least three (3) subscribers.
(c ) Credits. At the request of the subscriber, subscribers shall receive a credit for any outage
which constitutes a total disruption of service, providing said outage is caused by the
actions or inactions of the Franchisee. At the request of the subscriber, subscriber shall
receive a credit for "major outages". In order to receive the credit for outages that are not
"major outages," the subscriber must notify the Franchisee within seven (7) days from the
final day of the outage and request a credit.
t 6.8 Complaint Records. The Franchisee shall keep full and complete records in connection with all
written complaints in connection with the cable system. Such records shall identify the person
contacting the Franchisee, and the person responding on behalf of the Franchisee, the subject
matter of the contact, the date and time it was received, the resolution of the matter in question or
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the action taken by the Franchisee in connection with the contact, and the date and time thereof,
and such other infonnation as may be deemed pertinent by the Franchisee. These written records
shall be made available to the City within ten (10) business days of the City's request subject to
applicable privacy laws. A summary of written complaints shall be prepared by the Franchisee
and submitted to the City annually, upon request. The summary shall be in a fonnat acceptable to
the City.
16.9 Subscriber Solicitation. Door to door solicitation, if allowed by law, will be in compliance with
applicable City ordinances.
16.10 Installation and Connection.
(a) Stranding.
(I) Franchisee shall be required to extend its distribution facilities and provide service
throughout the entire Franchise area to any residential subscribers whenever there
exists a minimum density of twenty (20) dwelling units for each strand-mile of
cable extension required or portion thereof where the ration of twenty (20) dwelling
units per strand-mile is maintained. For purposes of this section, density per
strand-mile shall be computed by dividing the number of residential dwelling units
in the area by the length, in miles or fractions thereof, of the total amount of aerial
or underground cable necessary to make service available to the residential
dwelling units in such area in accordance with Franchisee's system design
parameters. The cable length shall be measured from the nearest point of access to
the then-existing cable system, provided that extension is technically feasible from
that point of access, and located within the public rights-of-way. The total cable
length shall exclude the drop cable necessary to serve individual subscriber
premises.
(2) The Franchisee shall not be responsible for providing service in this area or
meeting the density requirements herein if:
(i) The Franchisee is precluded by the property owner, instrument of record or
contact from providing cable services or construction and installation of
facilities and equipment;
(ii) Another cable operator is providing such service; or
(Hi) A SMATV operator is providing cable service to the area.
(3) Nothing herein shall preclude the Franchisee from charging for the construction or
installation of facilities and equipment to provide service to subscribers requesting
such where the strand-mile density is less than that required in this Agreement.
(b) Service obligations. Within seven (7) days of a request for service by any person or entity,
the Franchisee shall furnish the requested service to such person or entity if a standard
installation is within one hundred twenty five (125) feet from the prospective subscriber's
residence. If not within one hundred twenty five (125) feet, service shall be provided
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within thirty (30) days of a request for service, except where pennitting takes longer
periods of time. A non-standard installation is an installation over one hundred twenty five
(125) feet, and in such cases the provision of service will be handled under a share cost
program between the Franchisee and the subscriber.
(c) Standard Installations. The standard installation shall consist of service not exceeding
one hundred twenty five (125) feet from a single point or pedestal attachment to the
subscriber's residence. The desire of the subscriber as to the point of entry into the
residence or commercial establishment and location of pedestal, if on the subscriber's
property, shall be observed whenever possible. Runs in building interiors shall be as
unobtrusive as possible. The Franchisee shall use due care in the process of installation
and shall repair any damage to the subscriber's property caused by said installation. Such
restoration shall be undertaken within no more than ten (10) days after the damage is
incurred and shall be completed as soon as possible thereafter.
16.11 Quality of Service. The Franchisee expressly undertakes and agrees that it will at all times during
the term of the Franchise transmit signals of strength and quality, and use such material and
components, as are necessary to insure that subscribers will receive throughout the tenn of the
Franchise a quality of cable service in keeping with the prevailing highest standards of the cable
industry.
16.12 Signal Theft. The Franchisee shall, at all times, take reasonable measures to detect and prohibit
cable signal theft within the City.
XVII. REPORTS AND RECORDS.
17.1 Annual Reports. Upon request and within forty-five (45) days after the expiration of the fiscal
year, the Franchisee shall provide the City an annual report which includes the following
information:
(a) A summary of the previous year's activities in development of the cable system, including
but not limited to, services initiated or discontinued, number of subscribers in the City and
miles of cable distribution plant in service. The summary shall also include any
construction, including system upgrades, during the year as well as rate and charge
increases and/or decreases for the previous fiscal year.
(b) A copy of updated maps showing areas served. Such materials shall be marked
"proprietary and confidential" and shall be kept confidential to the extent permitted by law.
(c) A summary of the number, type and duration of outages, the reason for the outage, and the
number of subscribers affected if affecting 500 or more subscribers in the City.
17.2 Required Documentation. Upon request of the City, a Franchisee shall provide, on an annual
basis, one or more of the following documents to the City as received or filed, without regard to
whether the documents are filed by Franchisee or an affiliate:
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(a) If Franchisee is a corporation, a list of officers and members of the board of directors; the
officers and members of the board of directors of any parent corporation; if Franchisee or
its parent corporation's stock or ownership interests are publicly traded, a copy of its most
recent annual report; and a list of all persons holding five percent (5%) or more ownership
or otherwise cognizable interest in Franchisee pursuant to 47 C.F.R. 76.501.
(b) A copy of Franchisee's rules and regulations applicable to its subscribers.
(c) A full schedule and description of services, service hours and location of Franchisee's
customer service office(s) available to subscribers, and a schedule of all rates, fees and
charges for all services provided over the cable system.
(d) Any and all notices of deficiency, forfeiture or documents instituting any investigation,
civil or criminal proceeding issued by any state or federal agency regarding the cable
system, provided however, that any such notice or documents need be provided only to the
extent the same may directly or indirectly affect or bear on Franchisee's operations in the
City.
(e) Any request for protection under bankruptcy laws or any judgment related to a declaration
of bankruptcy.
17.3 Inspect Records. Access to the aforementioned records shall not be denied by the Franchisee on
the basis that said records contain "proprietary" information, unless applicable law exempts said
records. Any proprietary confidential business information obtained by the City from Franchisee
shall be considered confidential and exempt from the provisions of s. 119.07(1) and s. 24(a),
Article I of the State of Florida Constitution as provided under the Communications Services Tax
Simplification Law, Chapter 202, Florida Statutes.
17.4 Public Records. Upon written request by Franchisee and subject to applicable law, including
Chapter 119 of the Florida Statutes, information of a proprietary nature submitted by Franchisee to
the City pursuant to this Franchise shall not be made available for public inspection.
XVIII. RATES.
The City shall have the ability to regulate rates under conditions specified in its City Code, and in
any particular City ordinance, all pursuant to the Act, and as authorized by law now and in the
future. Should the City at some future date be allowed to regulate other than basic tier cable
television service and equipment rates, all as provided in the Act, the City may, in its sole
discretion, institute such rate regulation as it deems appropriate with appropriate advance written
notification to the Franchisee.
XIX. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED.
All services rendered and all rules and regulations adopted by Franchisee shall have general
application to all persons and shall not subject any person to prejudice or disadvantage on account
of race, gender, religion, origin, or ethnicity in accordance with federal and state law.
XX. ENFORCEMENT.
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20.1. Relief. In addition to any other rights or remedies available at law or equity or provided under this
Agreement, the City may seek legal or equitable relief from any court of competent jurisdiction to
enforce the provisions of this Agreement. Notwithstanding any provision to the contrary herein,
the City shall have the right to collect all reasonable costs and attorneys' fees incurred in enforcing
the terms of this Agreement.
20.2 Waiver. Failure of the City to enforce any requirements of this Agreement or any City Code
regulating cable systems operations shall not constitute a waiver of the City's right to
subsequently correct or enforce such requirements, terms or conditions.
XXI. MISCELLANEOUS PROVISIONS.
21.1 No Joint Venture. Nothing herein shall be deemed to create a joint venture or principal- agent
relationship between the parties, and neither party is authorized to, nor shall either party act
toward, third persons or the public in any manner which would indicate any such relationship with
the other.
21.2 Entire Agreement This Agreement and all existing City Code provisions and ordinances, as may
be lawfully amended from time to tin1e, regulating cable system operations are incorporated herein
by reference, represent the entire understanding and agreement between the parties hereto with
respect to the subject matter hereof: and supersede all prior oral negotiations between the parties.
This Agreement may be amended, supplemented, modified, or changed only by adoption of an
ordinance by the City and execution of an instrument agreeing to said amendment,
supplementation, modification, or change in the terms hereof by the Franchisee.
21.3 Provisions Cumulative. The rights and remedies reserved to the City by this Franchise are
cumulative and shall be in addition to and not in derogation of any other rights or remedies which
the City may have with respect to the subject matter of this Franchise subject to applicable law,
and a waiver thereof at any time shall have no effect on the enforcement of such rights or remedies
at a future time.
21.4 Notices. All notices from the Franchisee to the City pursuant to this Agreement shall be sent to:
City Manager, City of Winter Springs, 1126 East State Road 434 Winter Springs, Florida 32708.
All notices to the Franchisee shall be sent to: Vice President, Government Affairs, Bright House
Networks, whose address is 2251 Lucien Way, Maitland, FL 32751. The names and addresses in
this section may be unilaterally amended by either party at any time by giving written notice to the
other party.
21.5 Captions. Captions to sections throughout this Franchise are solely to facilitate the reading and
reference to the sections and provisions of the Agreement. Such captions shall not affect the
meaning or interpretation of the Agreement.
21.6 Severability. If any section, subsection, sentence, clause, phrase, or portion of this Agreement is,
for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent provision. Such holding shall not
affect the validity of the remaining portions of this Agreement.
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21.7 City's Rights of Intervention. The Franchisee agrees not to oppose intervention by the City in
any suit or proceeding to which the Franchisee is a partYt concerning or involving the Citts rights
under this Agreement.
21.8 Governing LawN enue. Except as to matters which are governed by Federal Law or regulation,
this Franchise shall be governed by and construed in accordance with the laws of the State of
Floridat applicable City Codest and this Agreement. If any partt sectiont subsection or other
portion of this Agreement conflicts or subsequently comes into conflict with any federal or state
law, the prevailing law shall control and apply.
The parties hereto agree that the state or federal courts located in the State of Florida shall have the
exclusive jurisdiction over the parties and the subject matter of any litigation between the parties
arising hereunder. For the purpose of state court actiont venue shall lie within Seminole CountYt
Florida, and for the purpose of federal court action, venue shall lie within the Orlando Division of
the Middle District of Florida.
21.9 Attorneys' Fees. In the event of any litigation or arbitration arising out of this Franchiset each
party shall bear their own attorneys t fees and costs incurred in such action.
21.10 Renegotiation Clause. In the event of a material change in federal or state law(s) or Federal
Communications Commission rolest the City and the Franchisee mutually agree to renegotiate
those particular terms of this Franchise affected by changes in said law(s) or rule(s). This
Franchise shall remain in full force and effect until any negotiated amendments have been duly
approved by both the City and Franchisee.
21.11 Police Power; Reservation of Rights. Franchisee shall at all times be subject to and shall comply
with all applicable federalt state andt to the extent not inconsistent with the Franchise, local laws.
Franchisee shall at all times and without limitation by this Agreement shall be subject to the
lawful exercise of the police power of the City to adopt and enforce generally applicable
ordinances, resolutions, roles, regulations, written policies and practices necessary to the
conveniencet health, safety and welfare of the public, and shall comply with all applicable
ordinances, resolutions, roles, regulations, written policies and practices by the City pursuant to
such power.
The City shall have all power conferred on a cable franchising authority not otherwise preempted
by federal or state law. Subject to applicable law, the failure of the City, upon one or more
occasionst to exercise a right or to require compliance or performance under this Agreement shall
not be deemed to constitute a waiver of such right or a waiver of requiring compliance or
performance.
21.12 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the
City's right to sovereign immunity under Section 768.28t Florida Statues, or other limitations
imposed regarding the City's potential liability under state or federal law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
day and year first about written.
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Signed, sealed, and delivered
In the presence of:
Sign:
Print Name:
Address:
Sign:
Print Name:
Address:
ATTEST:
Andrea Lorenzo Luaces, City Clerk
Approved as to legal form and sufficiency for
The City of Winter Springs Only:
Anthony A. Garganese, City Attorney
CITY:
CITY OF WINTER SPRINGS, FLORIDA
a Florida municipal corporation
By:
John F. Bush, Mayor
Address:
1126 East State Road 434
Winter Springs, FL 32708
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STATE OF FLORIDA )
COUNTY OF SEMINOLE )
The foregoing instrument was acknowledged before me this _day of ,2005,
by , as of the City of
Winter Springs, Florida, a Florida municipal corporation, on behalf of the aforesaid corporation.
He is personally known to me or has produced as identification.
Sign:
Print Name:
Address:
Sign:
Print Name:
STATE OF
COUNTY OF
)
)
Notary Public
State of Florida at Large
My commission expires:
Print Name:
FRANCHISEE:
BRIGHT HOUSE NETWORKS, LLC,
By:
1. Christian Fenger, President
Address:
The foregoing instrument was acknowledged before me this
He is personally known to me or has produced
day of ,2005.
as identification.
Notary Public
State of Florida at Large
My commission expires:
Print Name:
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