Loading...
45-84 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 10, "CABLE TELEVISION FRAN- CHISE'' OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 10-2, "DEFINITIONS", BY CHANGING THE DEFINITION OF GRANTEE TO REFLECT TWO FRANCHISE HOLDERS, AND BY ADDING TWO NEW DEFINITIONS TO INDICATE GRANTEE I AND GRANTEE II AND REFLECT A NAME CHANGE FOR GRANTEE I; BY AMENDING SECTION 10-5, "TERRITORIAL AREA INVOLVED", TO DESCRIBE THE GEOGRAPHIC AREAS OF THE FRANCHISE GRANTED TO GRANTEE I AND GRANTEE II AND TO AMEND THE TITLE AND PROVIDE CRITERIA FOR CONSTRUCTION AND EXTENSION OF THE CABLE SYSTEM; BY AMENDING SECTION 10-6, "LIABILITY AND INDEMNIFI- CATION'', TO INCREASE THE SECURITY REQUIRED OF A FRANCHISE HOLDER FROM A $25,000 BOND TO A $75,000 BOND OR LETTER OF CREDIT; BY AMENDING SECTION 10-23, "FORFEITURE OF THE FRAN- CHISE", TO READ "FORFEITURE OF THE FRANCHISE AND LIQUIDATED DAMAGES", AND TO ADD PROVISIONS PROVIDING FOR THE FORFEITURE OF THE FRANCHISE OR A PENALTY FOR FAILING TO CONSTRUCT OR EXTEND SERVICE ACCORDING TO THE TERMS OF THE FRANCHISE; BY REPEALING SECTION 10-26, "DURATION AND RENEWAL OF FRANCHISE", AND BY ENACTING A NEW SECTION 10-26, "DURATION AND RENEWAL OF FRANCHISE; APPLICATION AND RENEWAL FEES", TO PROVIDE FOR THE DURATION OF THE FRANCHISE GRANTED TO GRANTEE II AND TO PROVIDE A FEE FOR ALL FRANCHISE APPLICATIONS OR RENEWALS; BY REPEALING SECTION 10-33, "SEVERABILITY", AND BY ENACTING A NEW SECTION 10-33, "SEVERABILITY", TO PROVIDE FOR RENEGOTIATION OF ANY PROVISIONS OF THE FRANCHISE DECLARED INVALID OR UNCON- STITUTIONAL; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Delray Beach, Florida, has determined that it is in the best interest o! the citizens of Delray Beach to grant a second cable television franchise within the city limits of Delray Beach; and WHEREAS, the City Council of the City of Delray Beach, Florida, wishes the construction of the system to be accomplished in a manner which assures cable service to all residents as quickly as possible; and WHEREAS, the City Council of the City of Delray Beach, Florida, has determined that a $25,000 bond does not provide sufficient security for performance of the terms of this agreement; and WHEREAS, the City Council of the City of Delray Beach, Florida, has determined that certain modifications need to be made to the cable television franchise to provide for easier administration of the terms of the franchise and to include guidelines for the construction and extension of the cable system; and WHEREAS, the City of Delray Beach, Florida* will incur and has incurred great expenses in reviewing cable television applications, and that such expenses shall also be incurred by renewal applications, and that a fee needs to be charged to help offset such costs to the taxpayers of the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS.- Section 1. That Section 10-2, "Definitions", of the Code of Ordinances of the City of Delray Beach, Florida, is hereby amended by repealing Section 10-2, "Definitions", and that a new Section 10- 2, "Definitions", is hereby enacted to read as follows; Sec. 10-2. Definitions. For the purposes of this chapter, the foUowing terms~ phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used 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 "shaU" is always mandatory and not merely directory. (a) Cable television system, hereinafter referred to as "CATV system" or "system," means a system of coaxial cables or other electrical conductors and equipment used or to be used primarily to receive television or radio signals directly or indirectly off- the-air and distribute them to subscribers for a fee and such other services as specified by the Federal Communications Commission. (b) City is the City of Delray Beach, Florida. (c) Closed corporation is any corporation which has twenty (20) stockholders or less. (d) Council is the city council of Delray Beach, Florida. (e) Dwelling unit as used herein shall be the number of individual residential units for which a separate basic charge may potentially be collected. The number of dwelling units shall not include the number of units in a multi-family residence or complex if the company with a request for service is prohibited access to the complex or building. The number of dwelling units shall include any commercial unit which has specifically requested cable service or which now has cable service provided by either Grantee. (f) Dwelling units per linear mile as used herein shall be a measurement made from the dwelling unit requesting service to closest point at which the Grantee with the request for service has live cable wire. Whenever the distance measured results in a measurement which is less than a mile or includes a fraction of a mile the number of dwelling units required to be passed to entitle the customer to receive service shall be adjusted accordingly. (e.g. if the distance from live cable to customer requesting service is one-third of a mile and no other units along that line request service~ service must be provided if there are at least four dwelling units between the live cable and the dwelling unit of the customer requesting service.) (g) Grantee as used herein is a general term which, unless otherwise stated, refers to both Grantee I and Grantee II. (h) Grantee I. Fairbanks Communications, Inc., an Indiana corporation authorized to transact business in the state of Florida, or anyone who succeeds Fairbanks Communications, Inc. in accordance with the terms of this franchise. (i) Grantee II. Denntronics Cable, Inc., a Florida corporation, authorized to transact business in the state of Florida, or anyone who succeeds Denntronics Cable, Inc. in accordance with the terms of this franchise. (j) Person is any person, firm, partnership, association, corporation, company or organization of any kind. Section 2. That Section 10-5, "Territorial Area Involved", of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to read as follows.' Sec. 10-2. Territorial Area Involved and Construction Requirements. (a) This franchise is granted-i~-to Grantee I for all areas within the present corporate limits of the City and to any area henceforth added thereto during the terms of the franchise providing an exclusive franchise is not in existence in the area annexed. (b) This franchise is granted to Grantee II for an area described as follows: Be~:inning at the intersection of the northern city limit (L-30 Canal) and Barwick Road and proceeding south along Barwick Road to a point 200 feet north of Atlantic A.venue~ then east along that line to Congress Avenue~ then south along Congress Avenue to a point 200 feet south of Lin:on Boulevard~ then west along that line to the E-4 Canal~ then south along the E-4 Canal to the L-38 Canal then west along the L-38 Canal to Military Trail then north along Military Trail to the L-30 Canal and then east to the point of beginning. - 2 - Ord. No. 45-84 The franchise granted is ,applicable only to those areas within the above described area which are within the city limits of the City of Delray Beach. The franchise is also applicable to those area within the above described area which are later added to the corporate limits of the City of Delray Beach providing that an exclusive franchise is notpreviously in existence in the area so annexed. (c~) Grantee II shall be obligated to begin construction of the cable system within 60 days of passage of this ordinance on second and final, reading granting the franchise; and Grantee Il shaU further submit to the City Engineer a binding schedule of construction which shaU accomplish the wiring of the franchise area by September 1987. (d) The requirement of any Grantee to extend cable service to any individual home within the respective franchise area whether or not there are overlappinR franchises, shall be governed by the following standards.' (l) Areas with no cable service. A Grantee will be required to extend cable service to an individual dwelling unit when: (a) There is a request by the resident of that dwelling unit to provide such service; and (b) There is an average of fifteen (1~) dwelling units per linear mile or more than five (~) dwelling units per linear mile requesting such serv..ice providing that no other franchise cable service has committed in writing to provide such service. (2.) Areas already, cabled. Grantee will be required to provide cable service to a dwelling unit requesting service whenever there is an average of thirty-five (3§) dwelling units per linear mile whether or not any other of those units have requested cable service. (3) When a dwelling unit requesting cable service is determined to be outside the service criteria~ service shall be provided to that dwelling unit for a reasonable additional hook-up charge which shaU represent the actual additional cost to the cable company in providing service to that dwelling unit over its cost per mile where there are five (§) customers requesting service per linear mile. The Grantee shall set up a system of rebating these additional charges on a pro rata basis as new customers are added to the line. Section 3. That Section 10-6, "Liability and Indemnification", of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended by repealing subsection (d), "Performance Bond," and by enacting a new subsection (d), "Security" to read as follows: (d) Security. The Grantee shall provide the City with security of faithful per- formance of all terms and conditions of this franchise agreement by providing either a payment and performance bond running to the City with good and sufficient surety acceptable to the City in the penal sum of $75,000, or an irrevocable letter of credit in the amount of $7~,000. In the event that the City in accordance with the terms of this agreement recovers from the security the Grantee shall within 1~ days reinstate the security to the amount of $7~,000. Section ~. That Section 10-6, "Liability and Indemnification", Subsection (f) of the Code of Ordinances of the City of Delray Beach~ Florida, be, and the same is hereby amended to read as follows: (f) The insurance policies and bonds or letter of credit which the grantee is required to furnish under the requirements of this franchise shall be first submitted to the city attorney for his acceptance and approval thereof on behalf of the city and~ if so accepted and approved~ shall be filed in the office of the city clerk together with written evidence of payment of the required permiums due thereunder. - 3 - Ord. No. 45-84 Section 5. That Section 10-23, "Forfeiture of the Franchise," of the Code of Ordinances of the City of Delray Beach, Florida, be, and the same is hereby amended to .change the title of that Section to read as follows: Sec. 10-23. Forfeiture of franchise and liquidated damaKes. Section 6. That Section 10-23(a)(6) of the Code of Ordinances of the City of Delray Beach, Florida, is hereby repealed, and a new 10-23(a)6 is hereby enacted to read as follows= (6) Fails to construct the system or to extend service in accordance with the provisions of Sec. 10-5 of this chapter. The City Manager may rather than seeking a Council declaration of forfeiture require the payment of liquidated damages of up to $50.00 per day for failure to comply with the requirements of Section 10-5 within sixty (60) days after notice by the City to comply. The City Manager shall be the sole and final arbiter of all disputes and conflicts regarding provision of service under Section 10-5 and compliance with all requirements set forth therein, and his decision shall be final and binding. The imposition of liquidated damages shall not constitute a waiver of the City's right to halt the running of liquidated damages and/or declare a forfeiture of the franchise. Section 7. That Section 10-26, "Duration and renewal of franchise," is hereby repealed and a new Section 10-26, "Duration and renewal of franchise; application and renewal fees", of the Code of Ordinances of the City of Delray Beach, Florida, is hereby enacted to read as follows: Sec. 10-26. Duration and renewal of franchise; application and renewal fees. (a) The rights and privileges granted hereunder to Grantee I commence on Duly 22, 197q, and continue for a period of 15 years unless sooner terminated as herein provided. The rights and privileges granted hereunder to Grantee 1I shall be retroactive to March 28, Ii)gq and shall continue until Duly 22, 1989, unless terminated sooner as herein provided. Within thirty (30) days after the passage of this ordinance both Grantee I and Grantee II shall file with the City Clerk its unconditional acceptance of this franchise and agreement to comply with and abide by all of its provisions, terms, conditions, and requirements. (b) At the termination of the initial franchise period, the rights and privileges granted hereunder may be renewed for the existing Grantees solely at the election and agreement of the City for a reasonable period of time after a reevaluation of the terms and conditions of the franchisel the company shall continue service for a period of six months beyond the initial franchise period or for such period of time as negotiated between the parties, in the event a new or renewal franchise has not been granted. Applications by existing Grantees for the renewal of the franchise shall be made at least ninety (90) calendar days prior to the termination date of the franchise. (c) All applications for the City's cable television franchise(s) or for renewal of the City's cable television franchise(s) shall be in the form required by the City and shall be accompanied by a $5,000 nonrefundable application fee which shall be used by the City to process the application and set up the terms of any new franchise agreements. (d) Should the Grantee fail to comply with subsection (a) above, it shall have no rights, privileges or authority under this franchise whatever. Section 8. That Section 10-33, '~Deverability", of the Code of Ordinances of the City of Delray Beach, FlOrida, is hereby repealed and a new Section 10-33, "Severability", is hereby enacted to read as foUows.' Sec. 10-33. Severability. If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction or becomes invalid under federal or state law or in the event that the Federal Communications Commission declares any section invalid then such section or subsections including those affected by the decision will be renegotiated by the city and the Grantee. All nonaffected sections and subsections shall be deemed separate, distinct and independent provisions and as such shall not be affected by the declaration of invalidity. - 4 - Ord. No,'45-84 Section 9. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the 26th day of June ,198t~. //~ _ --.~,'9 ~ __ ATTEST: Cityt~lerk First Reading June 12, 1984 Second Reading June 26t 1984 - 5 - Ord. No. 45-84