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663ORDINANCE NO. 663 AN ORDINANCE GRANTING THE TM COMMUNICATIONS CO. OF FLORIDA A NON-EXCLUSIVE FRANCHISE TO ERECT, MAINTAIN, AND OPERATE IN, UNDER, OVER, ALONG, ACROSS AND UPON THE STREETS, LANES, AVENUES, SIDEWALKS, ALLEYS, BRIDGES, AND HIGHWAYS AND OTHER PUBLIC PLACES IN THE CITY OF EDGEWATER, FLORIDA, AND SUBSEQUENT ADDITIONS THERETO, FOR THE PURPOSE OF TRANSMISSION AND DISTRIBUTION BY WIRE OR CABLE OF TELEVISION TO THE INHABITANTS OF SAID CITY; PROVIDING AN INITIAL TERM OF FIFTEEN YEARS FOR SAID FRANCHISE; AND PROVIDING AN OPTION TO RENEW SAID FRANCHISE FOR A LIKE PERIOD OF TIME; AND PROVIDING AN EFFECTIVE DATE THEREFOR. BE IT ENACTED BY THE PEOPLE OF THE CITY OF EDGEWATER, FLORIDA: SECTION 1. This Ordinance shall be known and may be cited as the TM Cable TV Ordinance. SECTION 2. In consideration of the faithful performance and observance of the conditions and reservations herein specified and in consideration of the payments of amounts provided for in Section 12 (a), the CITY OF EDGE - WATER, a Municipal Corporation, hereinafter referred to as "City", hereby gives and grants to THE TM COMMUNICATIONS CO. OF FLORIDA, hereinafter referred to as "Company", the right to erect, maintain and operate television transmission and distribution facilities and additions thereto, in, over, under, along, across and upon the streets, lanes, avenues, sidewalks, alleys and other public places in the City of Edgewater, Florida, and subsequent additions thereto, for the purpose of transmission and distribution of audio and visual impulses and television energy in accordance with the laws and regulations of the City and the State of Florida for the period provided for in Section 9 (a) of this Ordinance. SECTION 3. Whenever used in this Ordinance, the word "television" shall mean a system for transmission of audio signals and/or visual images by means of electrical impulses. SECTION 4. (a) To the extent possible, the Company shall make attachments to poles already in existence within the City. To the extent that existing poles are insufficient for its purposes, or if the Company is unable to negotiate agreements satisfactory to its providing for the use of existing poles, the Coapany shall have the right to erect and maintain its own poles, or underground conduits, as necessary for the construction and maintenance for its television dis- tribution system, subject to the approval of the City as to the location of such poles, or underground conduits, and further provided that the Company shall bear all costs incurred. (b) The Company shall have the privilege of attaching any of its system facilities to any existing or future poles, towers (except water towers), or other electrical facilities owned by the City, in a manner which will not interfere with the use of such poles, towers, and other electrical facilities by the City. (c) The Company shall, with the prior approval of the City and at Company's expense, have authority to trim trees upon and overhanging all streets, alleys, easements, sidewalks, and otherpublic places within the City so as to prevent branches of such trees from coming into contact with the facilities of the Company. SECTION 5. (a) The Company shall file with the City Council, for its approval, plans and specifications for the location or relocation of all facilities located within the City and such approval shall not be unreasonably withheld. The facilities shall be so located or relocated and so erected or installed as not to obstruct or interfere with the use of streets, alleys, easements, and other public ways and places, or other utilities or structures already installed or hereafter to be installed, subject at all times -2- to the lawful police power of the City. (b) In case of any disturbance of pavements, driveways, sidewalks, or other surfaces, the Company shall at its own expense, upon completion of such construction, repair or installation of any of its facilities, remove, replace and restore all pavement, sidewalk, driveway or surface so disturbed in as good a condition as they were before the work was commenced. Such work shall be approved by the City, by and through its Building Inspector. Any reasonable obstruction of any street, alley, avenue, bridge, easement, or other public place or way of the City not re- moved by the Company after written notice of ten (10) days by the City demanding removal thereof, not properly re- paired by the Company after its work therein, after written notice by the City demanding repair thereof, may be removed or repaired, as the case may be, by the City and the reason- able cost thereof plus 10% of such cost for administration and engineering expenses, shall be charged against the Company and shall be collectable by the City in any lawful manner, and all costs and reasonable attorney's fees in- curred by the City in such enforcement shall be paid by the Company to the City. (c) In the event that at any time during the period of this franchise, the City shall elect to alter or change any street, alley, easement, or other public way requiring the relocation of the facilities of the Company, then and in such event, the Company, upon reasonable notice by the City, shall remove, relay and relocate its facilities at its own expense in accordance with the standards and procedures set forth in this Section 5. (d) The Company shall, when necessary on the request of any person holding an appropriate permit issued by the City, temporarily raise or lower its lines to permit the moving of any building -3- or other structure. The actual expense of such temporary removal shall be paid by the person requesting the same and the Company shall have the right to require such pay- ment in advance of such temporary removal. (e) All poles, lines, structures, and other facilities of the Company, in, on, over, and under the streets, sidewalks, alleys, easements and other public grounds or places within the City shall be kept by the Company at all times in a safe, sound and substantial condition. (f) The Company's work, while in progress, shall be properly protected at all times with suitable barricades, flags, lights, flares, or other devices to protect all members of the public having occasion to use the portion of the streets involved or adjacent property. SECTION 6. (a) The Company shall maintain and operate its system and render efficient service in accordance with the rules and regulations which are or may be subsequently set forth by the City. (b) Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, installations, or adjustments, the Company shall do so at such times as will cause the least amount of in- convenience to its customers and unless such interruption is unforseen and immediately .necessary, it shall give reasonable notice thereof to its customers. SECTION 7. Prior to the beginning of any work by the Company within the corporate limits of the City, the Company shall file with the City and keep in force and effect at all times during the effective period hereof, insurance certificates evidencing a liability insurance policy or policies, in the amount of $250,000 - $500,000 -4- bodily injury and $250,000 property damage, the terms and conditions whereof shall be such as to provide for the protection and indemnification of the City with respect to claims of any persons suffering injury, loss or damage to person or property by reason of the construction, operation or maintenance of its television system within the corporate limits of the City. Each such insurance policy shall be subject to the acceptance and approval of the City Council of the City. Any primary insurance policy must be issued by a company having a policy -holders surplus of at least five times the amount of coverage of the policy and the company must have management rating in Best's Insurance Guide of A+-AAAAA. Any excess policy used must be issued by underwriters acceptable to the City Council. Each such policy shall be in such minimum limits as are acceptable to tie City. Such insurance coverage shall remain in full force and shall be undiminished during the effective period of this Ordinance. Every such insurance policy, shall contain a provision whereby every company executing the same shall obligate itself to notify the City in writing at least thirty (30) days after any alteration, modification or cancellation of such policy is to become effective. In the event that any suit is filed or action brought against the City, either severally or jointly with the Company, by any person or corporation seeking to recover damages resulting from or attributable to the operations or the existence of the Company within the City of Edgewater, or arising in any manner whatsoever out of the operation or existence of the Company within the City, either due to the Company's neglect or otherwise, the Company shall upon written notice by the City, defend said suit or action, -5- and in the event any judgment therein shall be rendered against the City, the Company shall promptly pay the sum together with all costs resulting therefrom. SECTION 8. The Company shall have the right to charge and collect compensation from all subscribers to whom it shall furnish service. It is agreed that until otherwise provided by State Law any change in rates and charges made by the Company shall first be approved by the City, upon the Company making a comprehensive rate and charge application therefor reflecting the basis for such change, and the City shall not unreasonably withhold its approval thereof. The Company shall not as to rates, regulations or any other responsibility, make unreasonable excessive charges or grant any preferences or advantages to any person, or subject any person to any prejudice or disadvantage; provided, however, that this provision shall not be deemed to prohibit the establishment of a graduated scale of charges and classificed rate schedules to which any customer coming within such classification shall be entitled as pro- vided herein. Rates shall be the same for such classification of customers as are served by the Company from identical facilities. (b) The Company's initial schedule of rates and charges is as follows: SCHEDULE OF SUBSCRIBER CHARGES RESIDENTIAL (All fees payable in advance) Connection Charge Monthly Charge First TV Outlet 0'0 Additional TV Outlets (same as residential structure 5.00 1.50 Relocation of TV outlet 5.00 within same residence structure FM Outlet (Installed with 5.00 1.00 TV Outlet) Transfer connection to new pre -wired homes 5.00 Reconnect service after 5.00 having been disconnected for any reason * This is actual connection fee; no deposit required. NOTE: Above rates are for exposed wiring only. Cost of underground and inside wall installation must be handled on an individual cost basis. (c) In the event any subscriber shall fail to pay the fee or charge within fifteen (15) days after notification that such charges are due, the Company reserves the right to withhold and/or deny service to such subscriber, and to remove any installation which it has made to provide service to such subscriber. Other- wise, the service rendered by the Company shall be available to all inhabitants of the City along the reasonably extended pole route of the Company; provided, however, nothing con- tained herein shall require the Company to extend its pole system to any person within the City, if it is economically impracticable to do so. SECTION 9. (a) The rights granted hereunder shall take effect and be in full force from and after the date of acceptance by the Company. The rights granted under this Ordinance shall continue in full force and effect for an initial term of fifteen (15) years from date of acceptance by the Company. The City herewith grants to the Company the option and privilege to renew the rights granted here- under for an additional term of fifteen (15) years under the terms provided herein. This option shall be exercised by the company giving the City notice, in writing, of its election to exercise the option, which notice shall not be less than six (6) months nor more than two (2) years prior to the expiration of said initial term. References in this Ordinance to its "term" shall include the initial fifteen year period and the additional period of fifteen years. (b) The City hereby reserves the right at the end and after the expiration term of this -7- Ordinance to purchase the property of the Company located within the City and used in connection with the television distribution systems, as provided by the laws of the State of Florida in effect on the effective date hereof, includ- ing Sec. 167.22, Florida Statutes, 1967. (c) If the City elects to purchase said property pursuant to the provisions hereof, it shall give written notice of its election to the Company within sixty (60) days from the expiration of the term hereof. Upon the exercise of this option by the City, and receipt of payment as determined in accordance with applicable Statutes, the Company shall immediately execute such deeds or instruments of conveyance to the City as shall be re- quired to convey to said City the title to the property. The Company shall continue to operate its system upon the terms and conditions herein until payment in full is made by the City, unless agreed otherwise by the Company and the City. The Company shall make it a condition of any contract entered into by it for the sale of its facilities that the contract shall be subject to the exercise of this option by the City and the City shall have the right to succeed to all privileges and obligations thereof at its option. In the event the City does not elect to purchase the system, a new Ordinance may be negotiated or the Company may dispose of its property as it so chooses. SECTION 10. (a) If the Company should violate any of the terms, conditions or provisions of this Ordinance or if the Company should fail to comply with any provisions of any Ordinance of the City regulating the operations of the Company in the City, and should the Company continue to violate the same for a period of thirty (30) days after the Company shall have been notified in writing by the City to I desist from such violations, the Company may, at the City's option, be deemed to have forfeited and abandoned all of the rights and privileges of this Ordinance. (b) The City has the primary option and right in the event of a forfeiture to purchase the prop- erty of the Company, located within the City and used in connection with its television distribution system, as pro- vided by the laws of the State of Florida in effect on the effective date hereof, including Sec. 167.22, Florida Statutes, 1967. (c) If the City elects to purchase said property pursuant to the provisions hereof, it shall give written notice of its election to the Company within sixty (60) days from the effective date of the forfeiture. (d) If the City elects to purchase said property, the sale shall be consumated in accordance with the terms and provisions of Section 9 (c) herein. In the event the City does not elect to purchase the system, the Company shall then have one hundred twenty (120) days to remove all of its facilities on or over any right given to it herein and the insurance coverage as provided in Section 7 of this Ordinance shall be kept in force for the period of time required to remove all of the Company's facilities. If the Company shall not have removed its said facilities within one hundred and twenty days, or any extensions thereof approved in writing by the City, then said facilities shall be deemed abandoned and the City may thereafter dispose of the same as it shall see fit. (d) In the event of any removal of the facilities of the Company as contemplated herein, the Company shall be solely responsible for any expenses incurred to remove, replace and restore sidewalks, pave- ments, driveways, or any other surface, and said surface so disturbed shall be left in as good a condition as it was before the work was commenced. M-M SECTION 11. As further consideration for the grant of this franchise, the Company agrees to, and shall upon final acceptance, place an acceptable $25,000.00 per- formance bond with the City, and payable thereto. The Company shall, upon passage of this Ordinance, promptly make and pursue with all reasonable diligence its applica- tion with the Federal Communication Commission (FCC), and any other required regulatory governmental agency, for approval, license or permit to engage in business aspro- vided herein, and in the event such approval, license or permit is denied, without further recourse, within two (2) years from the date of passage of this Ordinance, then said bond shall be returned to the Company without further lia- bility thereunder. In the event the Company's application is approved as provided herein and the Company shall fail to begin substantial construction of said community television system within two (2) years from the date of passage of this Ordinance then the Company shall be deemed to have defaulted under said bond and the same shall be forfeited to the City and this franchise shall be null and void. SECTION 12. (a) The Company agrees that within thirty (30) days after the first anniversary date following the acceptance of the terms of this Ordinance and within thirty (30) days after each such succeeding anniversary date, the Company, its successors and assigns, shall pay to the City and its successors an amount which will equal per cent ten/(10%) of the Company's gross revenue received from its subscribers, or the sum of One Thousand ($1,000.00) Dollars per year, whichever is greater. Gross revenue as used here- in shall mean the gross amount of regular monthly or quarterly service charges plus any amount charged for special programs or projects actually paid for by sub- scribers served within the City. Gross revenue shall not -10- include charges for installation or repair of service facilities. In addition thereto, the Company shall, upon acceptance of this Ordinance by the Company, pay to the City of Edgewater One Thousand ($1,000.00) Dollars as evidence of good faith in establishing a cable television system within the City of Edgewater. Said $1,000.00 to be non-refundable but which shall be considered as an advance payment to be applied to future revenue payments due the City. (b) The Company shall keep records of account showing payments and dates received. The duly authorized agent of the City shall have the right, power and authority to inspect and audit the current records of gross revenues of the Company from subscribers at any reasonable time. The City shall have the right, at its own expense, to audit the records of gross revenue of the Company for any annual period at any reasonable time within three (3) years after expiration of such annual anniversary. (c) Nothing herein shall be con- strued as requiring the Company to pay to the City any portion of the revenue derived from the sale of community television service by the Company to customers residing outside of the corporate limits of the City of Edgewater. Upon annexation to the City of any territory not now within the corporate limits of the City, however, the portion of the Company's facilities that may be located within such annexed territory and upon the streets, alleys and public grounds thereof, shall thereafter be subject to all of the terms of this Ordinance. SECTION 13. As a condition of this Ordinance, the Company agrees that it will not engage in the business of sale or repair of television receivers owned by its subscribers nor will be responsible for the operating of said receivers. Any service furnished by the Company to the subscriber shall terminate at the point of connection of the Company's facilities to the subscriber's receiver. -11- SECTION 14. The Company shall forfeit and shall be deemed to have forfeited and abandoned all rights and privileges conferred by this Ordinance, and this Ordinance shall be null and void and of no force and effect, unless the Company shall, within sixty (60) days after the adoption hereof, file with the City its written acceptance of the rights and privileges hereby conferred, and with the terms, conditions and restrictions hereby imposed, at which time the performance bond required by Section 11 hereof shall be deposited with the City. SECTION 15. The Company shall at all times keep an accurate map showing the location of all facilities erected, constructed and maintained by the Company under the provisions of this Ordinance, and the maps shall be accessible for the City's inspection at all times during reasonable hours. Two copies of an up-to-date map of the Company's facilities shall be furnished to the City with all revisions thereto, at the expense of the Company. SECTION 16. Nothing in this Ordinance shall be construed as a surrender by the City of its right or power to pass any ordinances regulating the use of its streets and other public ways; neither shall the Company be relieved from paying a reasonable annual occupational license fee to the City. SECTION 17. Nothing herein shall be construed as affecting in any manner the right of the City to levy or collect taxes payable by the consumer for services provided by the Company as now authorized under the laws of the State of Florida. SECTION 18. The rights granted to the Company hereunder may not be assigned by the Company except with the written consent of the City. SECTION 19. The Company represents that it will furnish a community antenna television distribution -12- service in the licensed area with the capacity of pro- viding twelve (12) channels, which includes a twenty-four hour time and weather channel, plus FM radio signals. The Company will provide a free basic installation and service to the City offices located within the licensed area, and to all public, private and parochial schools located along the plant route within the licensed area, as a public service. SECTION 20. This Ordinance is subject to the State and Federal rules, laws, and regulations pertaining to the operation of "television" by the Company. SECTION 21. I£ any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions tbereof. SECTION 22. The Mayor and City Clerk be and they are hereby authorized to execute an agreement or con- tract with the Company embodying and setting forth as a part thereof this Ordinance in full. SECTION 23. That all Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 24. This Ordinance shall become effective immediately upon its passage by the City Council and approval by the Mayor and the rights granted under this franchise and the obligations imposed shall be and become effective immediately upon execution of an agreement by the City and the Company, embodying and including this Ordinance. The above Ordinance was read in full and passed by vote of the City Council of the City of Edgewater, -13- Florida at a regular meeting of said Council held on the 15th day of June A.D., 1970. Upon motion duly made, seconded and carried, the requirement of reading said Ordinance upon second reading was waived and the Ordinance was ordered put upon final passage. Passed by vote of the City Council of the City of Edgewater, Florida at a regular meeting of said Council held on the 15th day of June, 1970 and approved as pro- vided by law, the vote of said Council being as follows: a Approved this 15th of June A.D., 1970. Mllist, � an Councilman -14-