Fort Walton Beach Ordinance — 1702 cable franchise use city Right of Way — reading text

READING DATE 1st ~../ .. 06 2nd _)..~-()~ ORDINANCE NO. 1702 AN ORDINANCE OF THE CITY OF FORT WALTON BEACH, FLORIDA, RELATING TO THE GRANTING OF A FRANCHISE FOR THE USE OF THE CITY' S RIGHTS- OF- WAY FOR THE CONSTRUCTION, RECONSTRUCTION, OPERATION AND MAINTENANCE OF A CABLE COMMUNICATIONS SYSTEM WITHIN THE CITY BY COX COMMUNICATIONS GULF COAST, L.L.C. ( COX); PROVIDING FOR AUTHORITY; SHORT TITLE; GRANT OF FRANCHISE; RIGHT OF CITY TO ISSUE FRANCHISE; AN EFFECTIVE DATE OF FRANCHISE AND EFFECT UPON EXISTING FRANCHISE; TERM; NON EXCLUSIVITY; INCORPORATION OF THE CABLE ORDINANCE BY REFERENCE AND RESOLUTION OF CONFLICTS; DEFINITIONS; SERVICE AREA; SYSTEM AND CAPACITY; CONSTRUCTION AND INSPECTION; SYSTEM SERVICES; ACCESS AND INSTITUTIONAL NETWORK; SUBSCRIBER INFORMATION AND RIGHTS; EQUAL EMPLOYMENT OPPORTUNITY; RATES; FRANCHISE RENEWAL; POLICE POWERS; PERFORMANCE SECURITY; REGULATION; REMEDIES; LIQUIDATED DAMAGES; COOPERATION; WAIVER; CUMULATIVE PROVISION; NOTICES; CAPTIONS; NO JOINT VENTURE; ENTIRE FRANCHISE; SEVERABILITY; TIME IS OF THE ESSENCE; CONSTRUCTION OF FRANCHISE; TRANSFER OF THE FRANCHISE; AND ADDITIONAL SERVICES. WHEREAS, the City has adopted a Cable Communications Ordinance, Ordinance No. 1382; WHEREAS, the City is authorized to grant one or more nonexclusive, revocable, franchises to construct, reconstruct, operate, and maintain a cable communications system within the City; WHEREAS, the City desires the construction and maintenance of a cable communications system for the benefit of the City and all persons located therein; WHEREAS, the City has received a request for the renewal of the existing franchise from Cox, pursuant to the Cable Act; and WHEREAS, the City, after public hearings and due evaluation, has determined that it is in the best interest of the City and its residents to renew the Franchise of Cox for a five ( 5) year term. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF FORT WALTON BEACH, FLORIDA, AS FOLLOWS: SECTION 1. AUTHORITY. The authority for the enactment of this ordinance is Article VIII, 92( b), Florida Constitution, and 9166. 021, Florida Statutes. SECTION 2. SHORT TITLE. This ordinance shall be known and may be cited as the Cox Communications Franchise Ordinance.  SECTION 3. GRANT OF FRANCHISE. A. Cox is hereby granted for itself and its successors and assigns, subject to the terms and conditions of this Franchise, the right, privilege, and authority to construct, operate, maintain, and reconstruct a cable communications system within the streets, alleys, and public ways of the City. Cox shall provide a City-wide cable communications system to the residents and institutions of the City in accordance with this Franchise. B. This Franchise is subject to the Cable Communications Ordinance, Chapter 10- 40 of the Fort Walton Beach City Code ( hereafter referred to as the " Cable Ordinance"). Nothing in this Franchise shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits, fees to be paid, or manner of construction of the cable communications system. C. For the purpose of operating and maintaining a cable communications system in the City, Cox may erect, install, construct, upgrade, repair, replace, reconstruct, and retain in, on, over, under, or upon, across and along the public streets, alleys, and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, power supplies and other property and equipment as are necessary and appurtenant to the operation of the cable communications system in conformance with the City' s specifications. Prior to any construction, relocation, or alteration of the cable communications system, Cox shall file plans with the Public Works Department and shall receive all required regulatory approvals or permits before proceeding. SECTION 4. RIGHT OF THE CITY TO ISSUE FRANCHISE. Cox acknowledges and accepts the legal right of the City to issue this Franchise. SECTION 5. EFFECTIVE DATE OF FRANCHISE, EFFECT UPON EXISTING FRANCHISE. The effective date of this Franchise shall be April 19, 2005. Immediately upon taking effect, any prior franchises granted to Cox shall be superseded and of no further force and effect; provided, however, vested rights as described in such franchises shall not be affected thereby. SECTION 6. TERM. The period of this franchise shall be for a period of five ( 5) years from April 19, 2005, unless sooner terminated as provided in the Cable Ordinance or this Franchise. SECTION 7. FRANCHISE NONEXCLUSIVE. Consistent with the requirements of the Cable Ordinance, this Franchise shall not be construed as any limitation upon the right of the City to grant to other persons rights, privileges, or authorities similar to the rights, privileges, and authorities herein set forth, in the same or other streets, alleys, or other public ways or public places. The City specifically reserves the right to grant at any time during the term of this Franchise or renewal thereof, if any, such additional franchises related to a cable communications system or the provision of cable service as it deems appropriate in accord with the 2 provisions of 9166. 046, Florida Statutes ( 2005) as constituted on the effective date of this franchise. SECTION 8. INCORPORATION OF THE CABLE ORDINANCE BY REFERENCE AND RESOLUTION OF CONFLICTS. All terms, conditions and provisions of the Cable Ordinance shall be deemed to be embodied in this Franchise; however, the express terms of this Franchise shall prevail over specific, directly conflicting provisions of the Cable Ordinance. SECTION 9. DEFINITIONS. All definitions set forth in the Cable Ordinance pertain to the Franchise and shall be relevant to the purposes and meaning of this Franchise. SECTION 10. SERVICE AREA. A. Cox shall make cable service available to all areas of the City which are within the corporate limits of the City of Fort Walton Beach as they may exist from time to time in accordance with the following paragraphs B, C, and D. B. Residential Developments. Cox shall, upon receipt of a request for service, make service available to any new developments or a new home within the City limits, as of the effective date of this Franchise, within ninety ( 90) days of receipt of such request for service provided that all applicable permits have been secured upon a timely request for same by Cox. The failure of Cox to make such service available as a direct result of strikes, acts of nature, or other matters beyond the control of Grantee shall be exempted from the computation of the ninety ( 90) day period. Cox shall have sufficient funds budgeted and sufficient inventory of equipment and materials to extend service to all housing units located in such developments within the time frame specified above. Cox shall use its best efforts to meet with developers and City staff in advance of housing construction to ensure that the cable communications system is constructed in a joint trenches when feasible. The City shall notify Cox of joint trench opportunities as permits are issued by the City. C. Annexation. Unless otherwise authorized by the City Council, all areas annexed into the City subsequent to the effective date of this Franchise shall be serviced by the cable system within nine ( 9) months of the effective date of annexation provided that any such area is not already served by another cable operator as that term is defined in 9602( 5) of the Cable Act. If Cox has or anticipates unusual problems in meeting this deadline, Cox may request from the City Manager a reasonable extension of time commensurate with the difficulty experienced or expected. The City may require such information as needed to make a determination on any such extension. The approval of a request for an extension by Cox shall not be unreasonably withheld. D. Commercial Areas. Cox shall, upon receipt of a request for service from a commercial entity, provide service to any commercial establishment located within one hundred fifty ( 150) feet of the existing cable communications system within ninety ( 90) days of such request provided that Cox has the legal right to access to the commercial property. Any commercial establishment located farther than one hundred fifty ( 150) feet 3 from the cable communications system shall pay for reasonable construction job costs for any construction beyond one hundred fifty ( 150) feet. SECTION 11. SYSTEM AND CAPACITY. A. System Uporades. System upgrades shall be constructed as subsequently decided by Cox with input from the City. B. Applicable Law. In constructing, operating and maintaining the system, Cox shall at all times comply with the Cable Ordinance, this Franchise, and all applicable laws and regulations. C. Eauipment. Equipment used for the distribution system, headend and reception facilities shall be of good and durable quality and be serviced and repaired on a regular basis and shall at all times be of equal or better quality than the equipment being replaced. D. Emeraency Alert. Cox shall comply with the requirements of 47 C. F. R. 9911. 1- 11. 62. Notwithstanding these provisions, however, Cox shall broadcast state or local alerts as identified by the City to the extent that those alerts are included in Local Area Messages. E. Standby Power. Cox shall provide standby power-generating capacity at the headend. Cox shall maintain standby power system supplies, rated for a least two ( 2) hours duration throughout the distribution network. F. Converters. Cox shall make converters available to subscribers. Cox shall comply with all applicable laws and regulations regarding subscriber equipment necessary to accommodate the transition from analog to digital transmission technology. G. Internal wirina. Cox shall install and/ or maintain internal wiring for subscribers for a fee. The subscriber may install, own, maintain or have other vendors install, own, and/ or maintain internal wiring provided ( i) that such wiring is compatible with Cox' s system and applicable laws and regulations, and ( ii) such wiring shall not be used by subscriber to attach to any of Cox' s facilities without the knowledge and written consent of Cox. H. Remote Controls. Cox shall allow subscribers to use remote control units purchased or rented from other vendors pursuant to the provisions of 47 CFR 976.