[HISTORY: Adopted by the City Commission of the City of South Pasadena as indicated in article histories. Amendments noted where applicable.]
[Adopted 10-9-2001 by Ord. No. 2001-05]
Pursuant to the procedures in the Cable Act (as defined in § A196-3), the City has determined to renew the existing cable television franchise on the terms and conditions set forth in this ordinance, and the grantee agrees to such terms and conditions.
This ordinance shall be known and may be cited as the "Time Warner Entertainment - Advance/Newhouse Partnership Cable Television Franchise."
For purposes of this ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
- The cessation, by act or failure to act of the grantee, of the provision of all, or substantially all, of the services then being provided over the system to subscribers or the grantor for 24 or more consecutive hours, except if due to an event beyond the control of the grantee.
- BASIC SERVICE
- That level of cable services distributed over the subscriber network which, at a minimum, includes all signals carried on the system in fulfillment of the requirements of Sections 614 and 615 of the Cable Act (47 U.S.C. §§ 534 and 535, respectively); any access channel programming required by this ordinance to be provided to subscribers; and any signal of any broadcast station provided by the grantee to any subscriber, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station.
- CABLE ACT
- The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 to 611 (1991), and any amendments thereto, and the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992), codified at 47 U.S.C. §§ 151 to 611 (1993), and any amendments thereto, both of which, among other things, are amendments to the Communications Act of 1934, 47 U.S.C. §§ 151 to 611 (1991).
- CABLE SERVICE
- The one-way transmission to subscribers of video programming or other programming service; subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
- A band of frequencies in the electromagnetic spectrum, or any other means of transmission (including, without limitation, optical fibers or any other means now available or that may become available), which is capable of carrying a video signal, an audio signal, a voice signal, or a data signal.
- COMMUNICATIONS SYSTEM or SYSTEM
- Any facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, a function of which is to provide cable services by receiving through any means, including, without limitation, coaxial cable, optical fiber, antenna, or satellite or microwave transmission, and distributing video, audio, voice, or data signals, whether originating within the franchise area or elsewhere. The foregoing definition of "communications system" shall not be deemed to circumscribe the valid authority of any governmental body, including the grantor, to regulate the activities of any other communications system or provider of communications services.
- CONTROL or CONTROLLING INTEREST
- Actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of the system, the franchise or the grantee.
- The Federal Communications Commission, its designee, or any successor thereto.
- FRANCHISE AREA
- The area consisting of the corporate limits of the City of South Pasadena, as its borders may be changed from time to time. For purposes of this ordinance, any annexation shall become effective within 60 days of the grantor's written notice to grantee of the annexation including an accurate listing of the affected addresses.
- Time Warner Entertainment - Advance/Newhouse Partnership, a partnership duly organized and validly existing under the laws of the State of New York, whose principal place of business is located at 290 Harbor Drive, Stamford, Connecticut 06902.
- The City of South Pasadena, Florida, or, as appropriate in the case of specific provisions of this ordinance, any board, bureau, authority, agency, commission, department of, or any other entity of or acting on behalf of the City of South Pasadena, Florida, or any officer, official, employee, or agent thereof, any designee of any of the foregoing, or any successor thereto.
- PAY SERVICE
- Any cable service offered on a per-channel or per-program basis.
- PEG CHANNEL(S)
- Channels made available to grantor and/or users designated by grantor for noncommercial programming.
- Any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit, but shall not mean the grantor.
- RESPONSIBLE FRANCHISING OFFICIAL
- The body, organization or official to whom the applicable rights or obligations have been delegated by the grantor pursuant to applicable law.
- All of the public streets, alleys, highways, waterways, bridges, easements, sidewalks and parks of the City of South Pasadena, as they now exist or may be hereafter constructed, opened, laid out or extended within the present limits of the City, or in such territory as may hereafter be added to, consolidated or annexed to the City.
- Any cable service, including any basic service, including the provision of any equipment and any installation of equipment or facilities and monthly use thereof, whether originated by the grantee or any other person, which is offered to any person in conjunction with, or distributed over, the system to provide cable service.
- Any transmission of radio frequency energy or of optical information.
There is hereby granted by grantor, to grantee, the rights and privilege to construct, erect, operate, own and maintain, in, upon, along, across, above, over, and under rights-of-way now laid out or dedicated, and all extensions thereof, and additions thereto in the grantor, poles, wires, cables, underground conduits, manholes and other communication fixtures and utility structures necessary or proper for the maintenance and operation of the system in accordance with the provisions of this ordinance. This franchise is awarded subject to all applicable provisions of general or special laws of Florida and federal laws and regulations.
This franchise is for use by grantee of grantor's rights-of-way to provide cable services within the franchise area.
The franchise is nonexclusive. Nothing in this ordinance shall affect the right of the grantor, subject to applicable law, to grant to any person, or to itself, a franchise, consent, or right to occupy and use the rights-of-way, or any part thereof, for the construction, operation, or maintenance of all or any part of a communications system within the franchise area or for any other purpose. No such additional franchise shall be granted on terms and conditions more favorable or less burdensome than those outlined herein.
Nothing in this ordinance shall be construed to prohibit the grantor from operating as a multichannel video programming distributor in the franchise area, notwithstanding the granting of one or more franchises by the grantor; or requiring the grantor to secure a franchise to operate as a multichannel video programming distributor.
Nothing in this ordinance shall abrogate the right of the grantor to perform any public works or public improvements of any description; be construed as a waiver of any generally applicable codes or ordinances of the grantor or of the grantor's right to require the grantee to secure the generally applicable permits or authorizations for such use pursuant to City ordinances; or be construed as a waiver or release of the rights of the grantor in and to the rights-of-way. If any rights-of-way within the franchise area are eliminated, discontinued and closed, the franchise shall cease with respect to such rights-of-way upon the effective date of the final action of the grantor with respect thereto.
The grantee shall, if required by applicable law, petition the grantor for the authority to provide noncable services, and the grantor may grant such authority on terms and conditions that the grantor reasonably determines are appropriate in the circumstances subject to applicable law.
The franchise and rights herein granted shall take effect and be in force from and after the final passage hereof, as required by law and upon the filing of an acceptance by grantee of all the terms thereof with the grantor and shall, unless sooner terminated pursuant to this ordinance or applicable law, continue in force and effect for a term of 15 years after the effective date of this franchise.
Subject to Section 626 of the Cable Act (47 U.S.C. § 546), the grantor reserves the right to grant or deny renewal of the franchise.
Retroactive to October 1, 2001, grantee shall comply with the payment, reporting and audit requirements of the Florida Communications Services Tax Simplifications Law.
The grantee shall construct, operate, maintain, and upgrade the system as provided in this ordinance. The technical standards of the system within the City will meet FCC technical specifications.
In addition to any other requirements or procedures reasonably specified by the grantor, all work involved in the construction, operation, maintenance, repair, upgrade, and removal of the system shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. If, at any time, it is determined by the grantor or any other agency or authority of competent jurisdiction that any part of the system, including, without limitation, any means used to distribute signals over or within the system, is harmful to the health or safety of any person, then the grantee shall, at its own cost and expense, promptly correct all such conditions.
Neither the grantor nor its officers, employees, agents, attorneys, consultants nor independent contractors shall have any liability to the grantee or any affiliated person for any liability unless such liability arises because of the willful misconduct or gross negligence of the grantor or its officers, as a result of or in connection with the protection, breaking through, movement, removal, alteration, or relocation of any part of the system by or on behalf of the grantee or the grantor in connection with any emergency, public work, public improvement, alteration of any municipal structure, any change in the grade or line of any street, or the elimination, discontinuation, and closing of any street, as provided in this ordinance.
The grantee shall make all cable services distributed over the system available to all persons at a single-family residence within the franchise area who request service. Extension to new subdivisions or developments within the franchise area shall be commenced within 30 days after a request for service and service shall be activated within 90 days, unless the grantor consents to some other time period.
Throughout the term of the franchise, the grantee shall provide to all subscribers in the City of South Pasadena a diversity of cable programming services.
Subject to applicable law, the grantee shall not discriminate or permit discrimination between or among any persons in the availability of services. It shall be the right of all persons to receive continuously all available services insofar as their financial and other obligations to the grantee are satisfied.
The grantee shall continue to provide the City with PEG channels so long as said channels are available in Pinellas County. Grantor shall have the option of requiring grantee to furnish public access within the franchise area provided such option is exercised no later than March 15, 2002. If the City exercises the option prior to March 15, 2002, within 30 days C-SPAN 2 shall be removed and public access channel substituted. Following March 15, 2002, upon written notification from grantor and subject to the terms outlined herein, grantee agrees to activate a public access channel in the City. Grantor acknowledges that activating such a channel shall require grantee to delete programming from a channel and that grantee's obligation to activate a public access channel after March 15, 2002, shall be subject to existing contractual obligations and federally mandated programming requirements.
Within 30 days of execution of this agreement by both parties, grantee shall provide grantor with a capital grant in the amount of $10,000 for the purchase of public, educational or governmental access equipment.
The grantee shall provide one outlet and free standard basic service to the governmental and institutional facilities located in the franchise area that currently receive service, and shall provide such service to any additional governmental and institutional facilities that can be served by a standard one-hundred-fifty-foot drop, upon the grantor's request.
The grantee shall comply at all times with the provisions of the Cable Act and FCC rules and regulations applicable to rates and charges for any service and the associated terms and conditions for the provision of any service.
During the term of this ordinance, the grantee shall maintain with the City Clerk a complete listing of fees, charges, deposits, and associated terms and conditions for all services.
The grantor reserves the right to regulate the rates, fees, charges, deposits and associated terms and conditions for any service provided pursuant to this ordinance to the fullest extent permitted by applicable law.
The grantee shall submit a revised listing of fees, charges, deposits and associated terms and conditions to the City Clerk and provide written notice of the proposed changes to each affected subscriber not less than 30 days prior to the effective date of the changes.
Except as otherwise permitted by applicable law, the grantee shall not discriminate or permit discrimination between or among any persons in the rates, terms and conditions for any service. The foregoing requirements shall not prevent the use of:
The grantee agrees to provide to the subscribers in the City of South Pasadena customer service that meets the FCC customer service standards outlined in Section 76.309 of the FCC Rules and Regulations.
The grantee shall comply at all times with the provisions of the Cable Act and FCC rules and regulations applicable to subscriber bills, including, but not limited to, the format and itemization thereof, and shall use all reasonable efforts to ensure subscriber bills are not misleading.
The grantee shall comply at all times with the subscriber privacy provisions of the Cable Act or other applicable law. The grantee shall cooperate with the grantor so as to ensure the grantor's ability to enforce the terms and conditions of this provision to the extent consistent with applicable law.
The grantee shall comply at all times with FCC rules and regulations applicable to subscriber equipment and equipment compatibility.
The grantor shall have the right to oversee, regulate, and periodically inspect the construction, operation, maintenance and upgrade of the system, and all parts thereof, in accordance with the provisions of this ordinance and applicable law, including the grantor's police power.
When reasonably necessary to the administration or enforcement of the ordinance, at the request of the grantor, to the extent not deemed proprietary, the grantee shall promptly make available to the grantor for inspection such information as the grantor may reasonably request and prepared by the grantee in the ordinary course of business regarding the grantee, its financial information, its compliance with any material term or condition of this ordinance, with respect to the system or its operation, any service distributed over the system, or any activity or function associated with the production or distribution of any service over the system.
Throughout the term of the ordinance, the grantee shall maintain complete and accurate books of account and records regarding the grantee's ownership and operation of the system. Without limitation these records include books, data files of account, etc., adequate to enable the grantee to demonstrate that it is, and throughout the term of this ordinance has been, in compliance with this ordinance. All such documents, information, or data pertaining to financial matters, which may be the subject of an audit by the grantor, shall be retained by the grantee for a minimum of five years following termination of this ordinance.
The grantor's rights of inspection and audit shall include:
Upon notice to the grantee, the grantor or its designated representatives shall have the right to examine, when reasonably necessary to the administration or enforcement of the ordinance in the franchise area, all books and records pertaining to the grantee's ownership or operation of the system or to the grantee's provision of services over the system. Further, during normal business hours and upon notice to the grantee, the grantor or its designated representatives may inspect and examine any other aspect of the system, including facilities and equipment thereof.
Access by the grantor to any of the documents, records, data, or other information covered by this Subsection D shall not be denied by the grantee on grounds that such documents, records, or information are alleged by the grantee to contain proprietary information, provided that this requirement shall not be deemed to constitute a waiver of the grantee's right to assert that the proprietary information contained in such documents, records or other information, should not be disclosed and to withhold such information in accordance with F.S. § 119.
The grantor may conduct a full compliance audit and hold public hearings at any time during the term of the franchise, provided it gives the grantee written notice 10 days in advance of the commencement of such audits and associated hearings. In no event shall audits be performed more than once in any one-year.
The grantee may not transfer the franchise or any of the grantee's rights or obligations in or regarding the system or the franchise without the prior consent of the grantor. Such consent shall not be unreasonably withheld.
No change in control of the grantee, the system or the franchise shall occur after the effective date, by act of the grantee or by act of any person holding control of the grantee, the system or the franchise, by operation of law, or otherwise, without the prior consent of the grantor, which consent shall not be unreasonably withheld.
Any request for approval shall be handled by the grantor in accordance with its customary rules and procedures consistent with federal law. In connection with any request for approval, the franchisee shall submit to the grantor such information as the grantor may reasonably request consistent with federal and state law.
Notwithstanding anything herein to the contrary, no such prior consent shall be required for any transfer or assignment to any person controlling, controlled by or under the same common control as the grantee (a "qualified person"). In order for the grantee to avail itself of this Subsection D and implement a transfer or assignment to a qualified person without the prior consent of the City the grantee shall deliver to the City at the time of such a transfer or assignment written notice of the transfer.
The grantee agrees that the grantor shall have the specific rights and remedies set forth in this § A196-14. These rights and remedies are in addition to any and all other rights or remedies now or hereafter available to the grantor to enforce the provisions of this ordinance, and will not be deemed waived by the exercise of any other right or remedy. The exercise of any such right or remedy by the grantor shall not release the grantee from its obligations or any liability under this ordinance, except as expressly provided for in this ordinance or as necessary to avoid duplicative recovery from or payments by the grantee.
Events of default.
The grantee agrees that an event of default shall include, but shall not be limited to, any of the following acts or failures to act by the grantee:
A persistent failure by the grantee to comply with any of the material provisions of this ordinance that is not cured within 30 days after written notice pursuant to this § A196-14;
The occurrence of any event which may reasonably lead to the foreclosure or other similar judicial or nonjudicial sale of all or any material part of the system;
The condemnation by a public authority other than the grantor, or sale or dedication under threat or in lieu of condemnation, of all or any part of the system, the effect of which would materially frustrate or impede the ability of the grantee to carry out its obligations, and the purposes of this ordinance;
In the event that the grantee shall suspend or discontinue its business, shall make an assignment for the benefit of creditors, shall fail to pay its debts generally as they become due, shall become insolvent (howsoever such insolvency may be evidenced), shall be adjudicated insolvent, shall petition or apply to any tribunal for, or consent to, the appointment of, or taking possession by, a receiver, custodian liquidator or trustee or similar official pursuant to state or local laws;
A persistent failure by the grantee to comply with any of the material provisions, terms or conditions of this ordinance or with any generally applicable rules, regulations, orders or other directives of the grantor after having received notice of a failure to comply.
Upon the occurrence of an event of default, then in accordance with the procedures provided in § A196-14B(3), the grantor may, at any time during the term of this ordinance:
Require the grantee to take such actions as the grantor deems appropriate in the circumstances; and/or
Seek money damages from the grantee as compensation for such event of default; and/or
Seek to obtain the appointment of a court-appointed trustee or similar person to take any actions which the grantor deems appropriate in the circumstances; and/or
Exercise any other remedies that may be available under applicable law.
Upon the occurrence of an event of default, the grantor shall exercise the rights provided in § A196-14B(2) in accordance with the procedures set forth below:
The City or its designee shall notify the grantee, in writing, of an alleged event of default, which notice shall specify the alleged event of default with reasonable particularity. The grantee shall, within 30 days after receipt of such notice or such longer period of time as the City may specify in such notice, either cure such alleged event of default or, in a written response to the City, either present facts and arguments in refutation or excuse of such alleged event of default or state that such alleged event of default will be cured and set forth the method and time schedule for accomplishing such cure.
The City shall determine whether an event of default has occurred; whether such event of default is excusable; and whether such event of default has been cured or will be cured by the grantee.
If the City determines that an event of default has occurred and that such event of default is not excusable and has not been or will not be cured by the grantee in a manner and in accordance with a schedule reasonably satisfactory to the responsible franchising official, then the responsible franchising official shall prepare a written report which may recommend the action to be taken by the grantor's governing body. The grantor shall provide notice and a copy of such report to the grantee. In the event that the grantor's governing body determines that such event of default has not occurred, or that such event of default either has been or will be cured in a manner and in accordance with a schedule reasonably satisfactory to the grantor's governing body, or that such event of default is excusable, such determination shall conclude the investigation.
If the grantor's governing body determines that such event of default has occurred, and that such event of default has not been and will not be cured in a manner and in accordance with a schedule reasonably satisfactory to the grantor's governing body, and that such event of default is not excusable, then the grantor may take any of the actions provided in § A196-14B(2). Grantee may appeal any such decision to a court of competent jurisdiction.
In the event of any termination of this ordinance, whether by expiration (where the grantee does not seek renewal or where renewal is legally denied), revocation or otherwise, the grantor may direct the grantee to operate the system on behalf of the grantor pursuant to the provisions of this ordinance and such additional terms and conditions as are equitable to the grantor and the grantee, for a period of up to 12 months; or order the grantee to cease all construction and operational activities in a prompt and workmanlike manner.
In addition to its rights under § A196-14B(2), upon any termination, the grantor may issue a removal order directing the grantee to remove, at the grantee's sole cost and expense, all or any portion of the system from all rights-of-way and other public or nonpublic property within the franchise area, subject to the following:
In removing the system, or any part thereof, the grantee shall, at its own expense, refill and compact any excavation it makes, and shall leave the rights-of-way and other property, including utility cables, wires and attachments, in as good condition as that prevailing prior to the grantee's removal of the system.
The liability insurance and indemnity provisions of this ordinance shall remain in full force and effect during the period in which the system is being removed and the associated repairs to the rights-of-way and other property are being made.
If in the reasonable judgment of the grantor, the grantee fails to substantially complete removal, including repair of the rights-of-way and other property within 12 months of the grantor's issuance of a removal order, the grantor shall have the right to authorize removal of the system, at the grantee's cost, by another person; and declare that all rights, title and interest to the system belong to the grantor, including any portion of the system not designated for removal, without compensation to the grantee. The grantee shall execute and deliver such documents as the grantor may request, to evidence such ownership by the grantor. Notwithstanding the foregoing, the grantee may dispose of any portion of the system not designated by the grantor for removal during such twelve-month period, provided, however, that if the grantee fails to complete the removal of the portion(s) of the system designated for removal by the grantor within such period, then all such portion(s) of the system not disposed of by the grantee during such period shall belong to the grantor, with no price due to the grantee.
Upon any termination and as an alternative to ordering removal of the system, the grantor may acquire or effect a transfer to a third party of all or any part of the system and all components thereof necessary to maintain and operate the system pursuant to the terms of this ordinance.
Grantor right to purchase franchise provided. If grantee does not seek renewal of its franchise upon expiration, or renewal is properly denied, or if earlier terminated by grantor, pursuant to 47 U.S.C. § 546 et seq., as it may be amended from time to time, grantor hereby reserves the right at the expiration of this franchise, and grantee hereby grants grantor the right to purchase grantee's cable system operated within the City of South Pasadena pursuant to 47 U.S.C. § 547, as it may be amended from time to time.
In the event of any acquisition, transfer or abandonment pursuant to § A196-14D, the grantee shall:
Cooperate with the grantor or third party in maintaining continuity in the distribution of services to subscribers over the system.
Promptly execute all appropriate documents to transfer to the grantor or third party title to the system, all components necessary to operate and maintain the system, and any rights, contracts, permits or understandings necessary to operate or maintain the system including those necessary to the distribution of services over the system.
Promptly supply the grantor or third person with all records necessary to reflect the change in ownership and to operate and maintain the system.
Prior to commencement of construction, but in no event later than 60 days after the effective date of the franchise and thereafter continuously throughout the duration of the franchise and any extensions or renewals thereof, the grantee shall furnish to the City certificates of insurance, approved by the City, for all types of insurance required under this section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this ordinance.
Neither the provisions of this section nor any damages recovered by the City hereunder shall be construed to limit the liability of the grantee under any franchise issued hereunder or for damages.
All insurance policies maintained pursuant to this ordinance or the franchise shall contain the following, or a comparable, endorsement: "It is hereby understood and agreed that this insurance policy may not be canceled by the insurance company nor the intention not to renew be stated by the insurance company until 30 days after receipt by the City, by certified mail, of a written notice of such intention to cancel or not to renew."
The franchise agreement and all contractual liability insurance policies maintained pursuant to this ordinance or the franchise shall include the following provisions: "The franchisee/grantee/insured agrees to indemnify, save harmless and defend the City of South Pasadena, its officials, agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorney's fees for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise, whether in whole or in part, out of or in connection with the actions or omissions of the grantee."
All insurance policies provided under the provisions of this ordinance or the franchise shall be written by companies authorized to do business in the State of Florida, and approved by the State Department of Insurance.
The City shall be named as an additional named insured on all general liability policies issued to the grantee.
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 a CPI increase at the end of every three-year period of the franchise, applicable to the next three-year period, upon the determination of the City.
General liability insurance. The grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, general liability insurance insuring the grantee in the minimum of:
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.
Automobile liability insurance. The grantee shall maintain, and by its acceptance of a franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of:
Worker's compensation and employer's liability insurance. The grantee shall maintain and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, worker's compensation and employer's liability, valid in the state, in the minimum amount of:
Controlling authorities. This ordinance is made with the understanding that its provisions are controlled by the Cable Act, other federal laws, state laws, and all generally applicable local laws, ordinances, and regulations.
Enforceability of agreement; no opposition. By execution of this ordinance, the grantee acknowledges the validity of the terms and conditions of this ordinance under applicable law in existence on the effective date, and pledges it will not assert in any manner at any time or in any forum that this ordinance, the franchise, or the processes and procedures pursuant to which this ordinance was entered into and the franchise was granted are not consistent with the applicable law in existence on the effective date.
Notices. All notices shall be in writing and shall be sufficiently given and served upon the other party by first class mail, registered or certified, return receipt requested, postage prepaid, and addressed as follows:
Police powers. In accepting this franchise, the grantee acknowledges that its rights hereunder are subject to the police power of the grantor to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the grantor pursuant to such power. Any conflict between the provisions of this franchise and any other present or future lawful exercise of the grantor's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the jurisdiction or applies exclusively to the grantee's system or cable communications systems which contain provisions inconsistent with this franchise shall prevail only if upon such exercise, the grantor finds an emergency exists constituting a danger to health, safety, property or general welfare or such exercise is mandated by law.
Binding effect. This ordinance shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted transferees and assigns. All of the provisions of this ordinance apply to the grantee, its successors, and assigns.
No waiver; cumulative remedies. No failure on the part of the grantor to exercise, and no delay in exercising, any right or remedy hereunder including, without limitation, the rights and remedies set forth in § A196-14 of this ordinance, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other right or remedy, all subject to the conditions and limitations established in this ordinance. The rights and remedies provided herein including, without limitation, the rights and remedies set forth in § A196-14 of this ordinance, are cumulative and not exclusive of any remedies provided by law, and nothing contained in this ordinance shall impair any of the rights or remedies of the grantor under applicable law, subject in each case to the terms and conditions of this ordinance.
Severability. If any section, subsection, sentence, clause, phrase, or other portion of this ordinance is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.
No agency. The grantee shall conduct the work to be performed pursuant to this ordinance as an independent contractor and not as an agent of the grantor.
Governing law. This ordinance shall be deemed to be executed in the City of South Pasadena, Florida, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the State of Florida, as applicable to contracts entered into and to be performed entirely within that state.
Survival. All representations and warranties contained in this ordinance shall survive the term of the agreement.
Delegation of grantor rights. The grantor reserves the right to delegate and redelegate, from time to time, any of its rights or obligations under this ordinance to any body, organization or official. Upon any such delegation or redelegation, references to "grantor" in this ordinance shall refer to the body, organization or official to whom such delegation or redelegation has been made. Any such delegation by the grantor shall be effective upon written notice by the grantor to the grantee of such delegation. Upon receipt of such notice by the grantee, the grantee shall be bound by all terms and conditions of the delegation not in conflict with this ordinance. Any such delegation, revocation or redelegation, no matter how often made, shall not be deemed an amendment to this ordinance or require any consent of the grantee.
Claims under agreement. The grantor and the grantee agree that, except to the extent inconsistent with Section 635 of the Cable Act (47 U.S.C. § 555), any and all claims asserted by or against the grantor arising under this ordinance or related thereto shall be heard and determined either in a court of the United States located in Tampa, Florida ("federal court") or in a court of the State of Florida located in Florida ("Florida state court"). To effectuate this ordinance and intent, the grantee agrees that if the grantor initiates any action against the grantee in federal court or in Florida state court, service of process may be made on the grantee either in person, wherever such company may be found, or by registered mail addressed to the grantee at its office in the franchise area as required by this ordinance, or to such other address as the grantee may provide to the grantor in writing.
Modification. No provision of this ordinance nor any appendix to this ordinance shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the grantor and the grantee, which amendment shall be authorized on behalf of the grantor through the adoption of an appropriate resolution or order by the grantor, as required by applicable law.
Delays and failures beyond control of grantee. Notwithstanding any other provision of this ordinance, the grantee shall not be liable for delay in performance of, or failure to perform, in whole or in part, its obligations pursuant to this ordinance due to strike, war, or act of war (whether an actual declaration of war is made or not), insurrection, riot, act of public enemy, accident, fire, flood or other act of God, technical failure, sabotage or other events, where the grantee has exercised all due care in the prevention thereof, to the extent that such causes or other events are beyond the control of the grantee and such causes or events are without the fault or negligence of the grantee. In the event that any such delay in performance or failure to perform affects only part of the grantee's capacity to perform, the grantee shall perform to the maximum extent it is able to do so and shall take all steps within its power to correct such cause(s). The grantee agrees that in correcting such cause(s), it shall take all reasonable steps to do so in as expeditious a manner as possible. The grantee shall notify the grantor in writing of the occurrence of an event covered by this section within five business days of the date upon which the grantee learns of its occurrence.
Grantee shall signify its acceptance of the franchise terms in writing within 30 days of City Commission final approval of this ordinance by signing the ordinance and submitting it to the City Clerk.
This ordinance shall take effect immediately upon adoption.
[Adopted 1-23-1990 as Ord. No. 89-51]
When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.
For the purpose of this ordinance, the following terms, phrases, words, abbreviations and their derivations shall have the meanings herein given:
- BASIC CABLE TELEVISION SERVICE
- The distribution of broadcast television and radio signals.
- CABLE TELEVISION
- A cable television system as hereinafter defined.
- CABLE TELEVISION SYSTEM
- A system composed of, without limitation, antenna, cables, wires, lines, towers, amplifiers, wave guides or any other conductors, equipment or facilities designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and/or visual radio, television, electronic or electrical signals to and from persons, subscribers and locations in the franchise area.
- The City of South Pasadena.
- The governing body of the city.
- The grantee of rights under this ordinance, specifically, Les Chateaux Condominium Association, Inc.
- EXPANDED CABLE TELEVISION
- Any communication service in addition to basic cable television provided by the company.
- FRANCHISE AREA
- That area within the corporate limits of the city to be served by the company.
- GROSS ANNUAL BASIC SUBSCRIBER RECEIPTS
- Any and all compensation and other consideration derived directly by the company from subscribers for regularly furnished basic cable television. "Gross annual basic subscriber receipts" shall not include receipts derived from expanded CATV service, advertising revenues, installation charges or any taxes on services furnished by the company imposed directly on any subscriber or user by any city, state or other governmental unit.
- Any person, firm, partnership, association, corporation, company or organization of any kind.
- PROPERTY OF COMPANY
- All property owned, installed or used by the company in the conduct of a cable television business in the city.
- PUBLIC WAY
- The surface of and the space above and below any public street, right-of-way, road, highway, freeway, bridge, lane, patch, alley, court, sidewalk, parkway, drive, communications or utility easement, now or hereafter existing as such within the franchise area.
- Any person or entity receiving basic cable television.
Whereas the company herewith promises to improve the transmission of existing cable television service, and whereas the company has petitioned the city to enter into this agreement and to grant the company the authority contained herein in order for the company to finance, facilitate and effect said improvements to the city and to the subscribers of the company's cable television service within the city, and whereas the city is motivated by virtue of the company's promises and declarations thereof, and whereas the city, in full reliance upon the company's bona fide intent and ability to fulfill its declarations, is thusly and primarily moved to grant the authority hereunder.
Whereas the city has approved legal, character, financial, technical and other qualifications of the company and the adequacy and feasibility of the company's construction arrangements as part of a full public proceeding affording due process, there is hereby granted by the city to the company the right and privilege to engage in the business of operating a cable television system in the city for the purpose of providing basic cable television service and such aspects of expanded cable television, if any, as the company may from time to time deem advisable. There is, therefore, hereby granted to the company the right and privilege to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public way, in the franchise area such poles, wires, cable, conductors, conduits, vaults, ducts, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the cable television system; and in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other grantee franchised or permitted to do business in the city.
The right to use and occupy said public ways for the purpose herein set forth shall not be exclusive, and the city reserves the right to grant a similar use in said public ways to any other person.
The franchise and rights herein granted shall take effect and be in force upon the final passage hereof and upon filing of acceptance by the company, and the franchise shall continue in force and effect both as an ordinance and as a contract between the city and the company for a term of twelve (12) years after the effective date of this ordinance. The franchise may be renewed in accordance with applicable law.
All transmission and distribution structures, lines and equipment erected by the company within the franchise area shall be so located as to cause minimum interference with the proper use of public ways, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said public ways. The cable television system shall be constructed and operated in compliance with all applicable city, state and national construction and electrical codes and shall be kept current with new codes. The company shall install and maintain its wires, cables, fixtures and other equipment in such a manner that they will not interfere with any installations of the city or of a public utility serving the city.
In case of disturbance of any public way as a result of the operations of the company, the company shall, at its own cost and expense and in a manner approved by the city, replace and restore such public way in as nearly as possible as good a condition as immediately before the work involving such disturbance was done.
Any poles or other fixtures placed in any public way by the company shall be placed in such manner as not to interfere with the usual travel on such public way.
The company shall, on the request of any person holding a building moving permit issued by the city, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the company shall have the authority to require such payment in advance. The company shall be given not less than forty-eight (48) hours' advance notice to arrange for such temporary wire changes.
The company shall have the authority to trim trees upon and overhanging public ways in the franchise area so as to prevent the branches of such trees from coming in contact with the wires and cables of the company. The city shall be notified prior to any tree trimming performed by the company.
If at any time during the term of the franchise, the cables, wires or other like facilities of all public utilities are placed underground, the company shall, at that time, to the extent feasible, place its cable, wires or other like facilities underground to the maximum extent that existing technology reasonably permits the company to do so.
The company shall protect, support, temporarily disconnect or relocate in the same public way, or remove from the public way, at its own expense, any property of the company where reasonably required by the city by reason of traffic conditions, public safety, street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines and tracks or any other type of structures or improvements by public agencies.
The city shall have the right to make additional use for any public or municipal purpose, of any poles or conduits controlled or maintained exclusively by or for the company in any public way, provided that such use by the city does not interfere with use by the company. The city shall indemnify and hold harmless company against and from any and all claims, demands, causes of action, actions, suits, proceedings, damages, costs or liabilities of every kind and nature whatsoever arising out of such city use of company's poles or conduits.
The company shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devises for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
All structures and all lines, equipment and connections in, over, under and upon the public ways in the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition and in good order and repair.
This franchise is being granted for a very limited portion of the city where there is already full development of the land. There is no future development permitted within the franchise area, and therefore, no system expansion is planned or contemplated by this franchise.
The company shall operate and maintain its cable television system in full compliance with the standards set forth by the Federal Communications Commission.
The company shall notify the city thirty (30) days in advance of any increase in subscriber rates. The city and the company agree that such notification is for informational purposes only.
The company shall pay to the city, on or before March 31 of each year, a three-percent franchise fee based on gross annual basic subscriber receipts received for cable television operations and three percent (3%) of gross annual receipts received for expanded cable television services in the city for the preceding calendar year. No other fee, charge or consideration shall be imposed. At the time of each payment due hereunder, the company shall provide to the city an annual summary report showing gross annual basic subscriber receipts and gross annual receipts received for expanded cable television services during the preceding year.
The company shall at all times protect and hold harmless the city from all claims, actions, suits, liabilities, losses, expenses or damages of every kind and description, including investigation costs, court costs and attorney's fees, which may accrue to or be suffered or claimed by any person or persons arising out of the negligence of the company in the ownership, construction, repair, replacement, maintenance and operation of said cable television system and by reason of any license, copyright, property right or patent of any article or system used in the construction or use of said system. The city shall give the company prompt notice of any such claims, actions or suits, without limitation, in writing.
The company shall maintain in full force and effect during the life of any franchise, public liability insurance in a solvent insurance company authorized to do business in the State of Florida, at no less than in the following amounts:
Any inquiry, proceeding, investigation or other action to be taken or proposed to be taken by the city in regard to the operations of the company's cable television system shall be taken only after:
Thirty (30) days' public notice of such action or proposed action is published in a local daily or weekly newspaper having general circulation in the city.
A copy of such action or proposed action is served directly on the company.
The company has been given an opportunity to respond in writing and/or at hearing as may be specified by the city.
The public notice required by this section shall state clearly the action or proposed action to be taken, the time provided for responses, the person or persons in authority to whom such responses should be addressed and such other procedures as may be specified by the city. If a hearing is to be held, the public notice shall give the date and time of such hearing, whether public participation will be allowed and the procedures by which such participation may be obtained. The company shall be an indispensable party to any hearing conducted in regard to its operations.
Upon expiration of the franchise, if the company shall not have acquired an extension or renewal thereof and accepted the same, the company may enter upon the public ways of the city for the purposes of removing therefrom any and all of its property and otherwise. In so removing said property, the company shall refill, at its own expense, any excavation that shall be made by it, and shall leave said public ways in as nearly as possible as good condition as that prevailing prior to the company's removal of its property.
The company shall not sell or transfer its plant or system to another, other than a parent company or a wholly owned subsidiary of the company, nor transfer any rights under this franchise to another, except as security for moneys borrowed, without Commission approval. Such Commission approval shall not be unreasonably withheld, and neither this section nor other sections of this franchise shall preclude the assignment of certain rights in the system by the company for the purpose of financing.
It shall be the policy of the city literally to amend this franchise upon application of the company when necessary to enable the company to take advantage of any developments in the field of transmission of television and radio signals which will afford it an opportunity to more effectively, efficiently and economically serve its customers.
It shall be unlawful for any person without the express consent of the company to make any connection, extension or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the cable television system for any purpose whatsoever.
It shall be unlawful for any person to willfully interfere with, tamper with, remove, obstruct or damage any part, segment or content of a franchised cable television system for any purpose whatsoever without the express consent of the company.
Any violation of any provision of § A196-38 or § A196-39 above shall be punishable by a fine not to exceed one thousand dollars ($1,000.) for each violation or a jail sentence not to exceed ninety (90) days, or both. Each day of an unauthorized connection under § A196-38 shall be deemed a separate violation. The fine set forth above may be collected through appropriate civil proceedings. Imposition of such penalties are in addition to, and not in lieu of, any other civil or criminal liability arising from such violations.
When not otherwise prescribed herein, all matters herein required to be filed with the city shall be filed with the City Clerk.
The company shall assume the cost of publication of this franchise as such publication is required by law. A bill for publication costs shall be presented to the company by the City Clerk upon the company's filing of acceptance and shall be paid at that time.
In the case of any emergency or disaster, the company shall, insofar as practical, upon request of the city, make available its facilities to the city for reasonable emergency use during the emergency or disaster period.
The company shall at all times during the life of this franchise be subject to all lawful exercise of the police power by the city. The city reserves the right to adopt from time to time in addition to the provisions herein contained, such ordinances as may be deemed necessary to the exercise of police power. Such regulation shall be reasonable and not destructible to the rights herein granted and not in conflict with the laws of the state or other local laws or regulations.