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HomeMy Public PortalAboutORD 86/04ORDINANCE NO. 86 -4 AN ORDINANCE OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, PALM BEACH COUNTY, FLORIDA, ESTABLISHING TERMS AND CONDITIONS FOR THE GRANTING OF A CABLE TELEVISION SYSTEM WITHIN THE TOWN. CABLE TELEVISION ORDINANCE Sec. 10 -1. Short title. This chapter shall be known and may be cited as the "Gulf Stream CATV Ordinance ". Sec. 10 -2. Definitions. For the purposes of this chapter, the following 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 "shall" is always mandatory and not merely directory. (a) "Cable Television System ", hereinafter also 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) "Cable Act" means the Cable Communications Policy Act of 1984 identified as Public Law 98 -549 enacted on October 30, 1984. (c) "Town" is the Town of Gulf Stream, Florida. (d) "Town Commission" is the Town Commission of Gulf Stream, Florida. (e) "Dwelling unit" as used herein shall be an individual residential unit for which a separate basic charge may potentially be collected. The number of dwelling units shall not include the number of units in a multifamily residence or complex if the Grantee from which service has been requested is prohibited from serving 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 any 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. (For example, if the distance from live cable to the 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 (4) 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 each and every grantee of a franchise hereunder. (h) "Public Facilities" shall mean the streets, alleys, easements, swale areas, public ways, public places and all other easements dedicated to compatible use (within the meaning of Section 621(a)(2) of the Cable Act) now laid out or dedicated and all extensions thereof and additions thereto in the Town. (i) "Person" is any person, firm, partnership, association, corporation, company or organization of any kind. Sec. 10 -3. Grant of nonexclusive authority. (a) There is hereby granted by the Town to the Grantee the right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over and under Public Facilities, poles, wires, cables, underground conduits, manholes and other television conductors and fixtures necessary for the maintenance and operation in the Town of a Cable Television System. (b) The right to use and occupy Public Facilities for the purposes herein set forth shall not be exclusive, and the Town reserves the right to grant a similar use of Grantee to any person at any time during the period of this franchise. -2- (c) Grantee shall have the right to enter into arrangements for the attachment onto and use of facilities owned and operated by public utilities operating within the Town. Grantee shall strictly comply with the terms, provisions and restrictions of said agreements, and copies of all agreements made with other public utilities operating within the Town shall be provided to the Town upon request for the same. Sec. 10 -4. Compliance with applicable laws and ordinances. (a) Grantee shall, at all times during the lite of this franchise, be subject to all lawtul exercise of the police power by the Town and to such regulation as the Town shall hereatter provide, and Grantee shall tully comply with all applicable laws, rules and regulations now in ettect or hereinafter adopted by the Federal Communications Commission, the Town, the State of Florida and the United States. (b) Copies of all petitions, applications and communications submitted by the Grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters attesting Grantee's Cable Television System authorized pursuant to this tranchise shall be provided to the Town upon request for the same. Sec. 10 -5. Territorial area involved and construction requirements. (a) A tranchise granted hereunder shall be for all areas within the present corporate limits of the Town and to any area henceforth .added thereto during the term of a franchise granted hereunder. (b) The requirement of Grantee to extend cable service to a dwelling unit within Grantee's franchise area shall be governed by the following standards: (1) Grantee will be required to extend cable service to a dwelling unit when: MM (i) There is a request by the resident of that dwelling unit to provide such service; and (ii) There is an average of fifteen (15) dwelling units per linear mile or more than five (5) dwelling units per linear mile requesting such service and each such dwelling unit may be reached with a standard service drop or the resident of the dwelling unit has agreed to pay the additional cost of a non - standard drop. (2) 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 shall 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 (5) customers requesting service per linear mile. Grantee shall establish a system of rebating these additional charges on a pro rata basis as new customers are added to the line. (c) Specific additional construction requirements may be imposed in the franchise accepted by Grantee. Sec. 10 -6. Liability and indemnification. (a) Grantee shall indemnify and hold harmless the Town, its officers, agents and employees from all claims, debts, liabilities, demands, interest, court costs and attorneys' fees, to itself, or to any third person, whether for bodily injury, death, property damage or otherwise, in any way arising out of the operations of Grantee under this ordinance or Grantee's franchise issued hereunder. (b) Grantee shall pay and, by its acceptance of its franchise, specifically agrees that it will pay, all expenses incurred by the Town in defending itself with regard to all damages and penalties, including, but not limited to, all out - of- pocket expenses, such as attorneys' fees, and the reasonable value of any services rendered by the Town Attorney or his assistant or any employees of the Town. -4- (c) Grantee shall maintain and, by its acceptance of its franchise, specifically agrees that it will maintain throughout the term of its franchise liability insurance insuring Grantee, and naming the Town as an additional insured thereunder, against loss or damage arising out of the operations or responsibility of Grantee under its franchise with primary and umbrella insurance in a total limit of five million dollars ($5,000,000.00). Copies of policies are to be furnished the Town. (d) Grantee shall provide the Town with security of faithful performance of all terms and conditions of its franchise and this ordinance by providing either a payment and performance bond running to the Town with good and sufficient surety acceptable to the Town in the penal sum of five thousand dollars ($5,000.00), or an irrevocable letter of credit issued by a bank in Palm Beach County, Florida, in the amount of five thousand dollars ($5,000.00). In the event that the Town in accordance with the terms of this agreement recovers from the security, Grantee shall, within fifteen (15) days after notice from the Town, reinstate the security to the amount of five thousand dollars ($5,000.00). (e) The insurance required by subsection (c) and the bond or letter of credit required by subsection (d) shall be subject to the approval of the Town Commission, and the insurance policy or policies and the bond or letter of credit, along with the written evidence of payment of the required premiums, if applicable, shall be tiled and maintained with the Town Clerk of the Town during the term of Grantee's franchise. (f) The insurance policy or policies and bonds or letter of credit which Grantee is required to furnish under the requirements of this ordinance shall be first submitted to the Town Attorney for his acceptance and approval on behalt of the Town and, it so accepted and approved, shall be tiled in the office of the Town Clerk together with written evidence of payment of the required premiums due thereunder. -5- Sec. 10 -7. Pertormance Standards. Grantee shall at all times: (a) Use at least four hundred (400) megahertz of bandwidth (the equivalent of fifty four (54) television broadcast channels) available for immediate or potential use within all parts of Grantee's franchise area within forty -eight (48) months after award o its franchise hereunder. (b) Maintain equipment that passes standard color television signals without degradation and with a phase shift measured within its own System not to exceed plus or minus seven (7) degrees. Said phase shift measured witin its own System shall mean the difference between the phase shift measured in the signal received by the Grantee at its tower and the measure of phase shift at the subscriber's receiver. (c) Provide a minimum level of one thousand (1,000) microvolts at the input terminals of each television receiver on the line. (d) Provide that the System and all equipment be designed and rated for twenty -four- hours - per -day continuous operation. (e) Provide a signal -to -noise ratio of not less than forty (40) decibels measured at the subscriber's receiver. (f) Provide a television signal with a hum modulation less than five percent (5%) measured at the subscriber's receiver. (g) Provide a television signal free of interaction between any channels which may cause excessive cross - modulation distortion. The system cross- modulation distortion level shall meet a minimum standard of forty (40) decibels below the level of the television signals distributed to any subscriber connected to the system measured at the subscriber's receiver. (h) Operate the system in compliance with Subpart K of Part 76 of the Federal Communications Commission Rules and Regulations relating to incidental radiation. (i) Provide an intermodulation distortion not to exceed minus forty -six (46) decibels measured at the subscriber's receiver. ( j ) Provide that the plot of gain versus frequency across any six - megahertz channel is to be flat, plus or minus two (2) decibels, measured at the subscriber's receiver. (k) Provide and keep accurate, calibrated test equipment for the testing of all service and operation standards outlined in this chapter, and conduct tests as requested by the Town under the supervision of a Town representative in order to establish the level of performance of the system. The Grantee shall provide responsible service and investigation in response to all subscriber complaints. Should any subscriber be unable to obtain acceptable service from the Grantee, said subscriber may make application to the Town to require such tests by the Grantee. The subscriber, upon presenting his request, shall deposit with the Town through the office of the Town Manager, the sum of two hundred dollars ($200.00) as a deposit towards the cost of such tests. Should the test indicate that the Grantee has failed to provide service to said subscriber in accordance with the operational standards outlined in this chapter, then the Grantee shall bear the cost of said test, and the deposit herein required shall be returned to the subscriber. Should the test indicate that the Grantee is conforming with the operational standards set forth in this chapter, then the cost of said tests shall be borne by the subscriber requesting such test. So much of said deposit as is necessary to reimburse the Grantee for the actual cost of its tests shall be paid over to the Grantee, and the remainder of the deposit, if any, shall be returned to the subscriber. Sec. 10 -8. Operation and maintenance of system (a) Grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during periods of minimum use of the system. Grantee shall operate the system so that there will be no interference with television reception, -7- radio reception, telephone communications or other installations which are or may hereafter be installed and in use by the Town or any persons in the Town. (b) Grantee shall maintain an office within five (5) miles of the Town of Gulf Stream which shall be open during all usual business hours, have a listed telephone, and be so operated that complaints and requests for repairs or adjustments may be received at any time. Sec. 10 -9. Service to schools and public buildings. Grantee shall install and provide basic service through one basic standard service drop to each public school, fire station, police station and Town administration building within the Town for educational or governmental purposes upon request by the Town and at no cost to the Town or to the public school system. Any internal distribution system within the building to which the tree service is provided shall be at the expense of the party receiving the service and will be installed by Grantee at cost upon request. Grantee may, at its election, provide similar services without cost to private schools, including parochial or other religious schools. Sec. 10 -10. Emergency use of facilities. In the case of any emergency or disaster, Grantee shall, upon request of the Mayor or Town Manager, make available its facilities to the Town for emergency communications use during the emergency or disaster period in cooperation with other local governments. Grantee will provide a radio or character - generated signal override capability which will facilitate audio or video communications with all subscribers of Grantee during such emergency. Sec. 10 -11. Other business activities. (a) A franchise hereunder authorizes only the operation of a CATV system as provided for herein, and does not take the place of any other franchise, license or permit which might be required by the Town. (b) Neither Grantee nor_ any of its officers, agents or employees shall indicate or recommend, in any manner, a specific sale or service establishment or individual be used for the sale or service of any television set. This shall not prohibit Grantee from carrying paid advertisements by any company engaged in the sale or service of television sets or other video or audio equipment. Sec. 10 -12. Safety requirements. (a) Grantee shall at all times employ due care in the construction, operation, maintenance, removal and use of the Cable Television System using commonly accepted industry practices and equipment to avoid failures and accidents which are likely to cause damage, injuries or nuisances to the public. (b) Grantee shall install, operate and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the National Electric Safety Code promulgated by the National Bureau of Standards and the National Electrical Code of the American Insurance Association, and in such manner that they will not interfere with any installations of the Town or of a public utility serving the Town. (c) All structures and all lines, equipment and connections in, over, under and upon the streets, easements and swales, sidewalks and public ways and places of the Town, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition and in good order and repair. (d) Grantee shall maintain a force of employees sufficient to provide sate, adequate and prompt service for its facilities in accordance with industry standards. Sec. 10 -13. Conditions of street occupancy. (a) All transmissions and distribution structures, lines and equipment erected by Grantee within the Town shall be first approved by the Town upon application by the Grantee and shall be so located as to cause minimum interference with the proper use of streets, easements and swales, sidewalks, alleys and other public ways and places and to cause minimum interference with the rights and reasonable convenience of property owners who join any of the said streets, easements and swales, sidewalks, alleys or other public ways and places. (b) In cases of disturbance of any street, easement and Swale, sidewalk, alley, public way or paved area, Grantee shall, at its own cost and expense and in a reasonable manner approved by the Town Engineer, replace and restore such street, sidewalk, easement and swale, alley, public way or paved area in as good a condition as before the work involving such disturbance was done, and shall maintain such repairs for one year after the completion of same. (c) If at any time during the period of a franchise granted hereunder the Town shall lawfully elect to alter or change the grade of any street, easement and Swale, sidewalk, alley or other public way, or to relocate or install additional paving or utilities, Grantee, upon reasonable notice by the Town, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense. (d) Any poles or other fixtures placed in any public way by Grantee shall be placed in such manner as not to interfere with usual travel or any utilities located in or on such public way. (e) Grantee shall, on the request of any person holding a building moving permit issued by the Town, 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 Grantee shall have -10- the authority to require such payment in advance. Grantee shall be given not less than seventy -two (72) hours' advance notice to arrange for such temporary wire changes. (f) Grantee shall have the authority to trim trees upon and overhanging streets, easements and swales, alleys, sidewalks and public ways and places of the Town, so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee; except that, at the option of the Town, upon request of Grantee, such trimming may be done by Town or under Town's supervision and direction at the expense of Grantee. (g) In all sections of the Town where the cables, wires or other like facilities of public utilities are presently placed underground or are required to be so placed underground at any time in the future, Grantee shall place its cables, wires or other like facilities underground to the maximum extent that existing technology reasonably permits the Grantee to do so. (h) The Town shall not be required to assume any responsibility for the securing of any rights -of -way or easements, nor shall the Town be responsible for securing any permits or agreements with other persons or utilities. Sec. 10 -14. Employment practices. (a) Equal opportunity in employment shall be afforded all qualified persons by Grantee and no person shall be discriminated against because of race, color, religion, national origin or sex. (b) Grantee shall establish and adhere to the procedures, policies and reporting requirements established by Section 633 of the Cable Act and the regulations adopted thereunder. Sec. 10 -15. Removal of facilities upon requests. Upon termination of service to any subscriber, Grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request, except those facilities and equipment located in Public Facilities. -11- Sec. 10 -16. Transfer of franchise. Grantee shall not transfer its franchise to another person or corporation without prior _approval of the Town Commission by resolution. It shall be considered a transfer of its franchise and prior approval of the Town Commission shall be required where ownership or control of more than twenty percent (20 %) of the right of control of Grantee is acquired by a person or group of persons acting in concert, none of whom already own or control Grantee singularly or collectively. By its acceptance of its franchise, Grantee specifically agrees that any such acquisition occurring without prior approval of the Town Commission shall constitute a violation of its franchise. Neither the transfer of twenty percent (200) or less of the ownership of the right to control of Grantee nor transfer by Grantee to a parent or subsidiary of a franchise issued hereunder shall be deemed a violation of Grantee's franchise or this ordinance; provided that the Grantee shall give notice to the Town of such transfer and, after notice, the transferee shall act as Grantee. Sec. 10 -17. Town rights in franchise. (a) The right is hereby reserved to the Town or the Town Commission to adopt, in addition to the provisions contained herein and in existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power; provided that such regulations, by ordinance or otherwise, shall not conflict with the rights granted as in Grantee's franchise issued hereunder. (b) The Town shall have the right to inspect during Grantee's normal business hours the books, records, maps, plans and other like materials of Grantee, as such books, records, maps, plans and other materials relate to or affect Grantee's financial obligations to the Town set forth in this chapter. (c) The Town shall have the right, during the life of a franchise issued hereunder, to install and maintain free of charge upon the poles of the Grantee any wire and pole fixtures -12- necessary for a police alarm system, on the condition that such wire and pole fixtures do not interfere with the operations of Grantee's System. (d) The Town shall have the right to supervise all construction or installation work performed by Grantee under this ordinance or its franchise and make such inspections as it shall find necessary to insure compliance with the terms of this ordinance and other pertinent provisions of law. (e) The Town's rights with respect to the renewal and purchase of the Grantee's franchise are set forth in Sections 626 and 627 of the Cable Act. Sec. 10 -18. Maps, plats and reports. (a) Upon request, Grantee shall file with the Town Engineer accurate maps of its System, showing construction and distribution networks, and Grantee shall maintain same current. (b) Grantee shall file annually with the Town Finance Director, within ninety (90) days after the end of Grantee's fiscal year, a certified public accountant's statement of the gross receipts derived from Grantee's subscribers within the area designated by its franchise for said year. Sec. 10 -19. Payments to the Town. (a) Grantee shall pay the Town three percent (3 %) of the gross subscription revenue received by the company for cable television service provided to subscribers within the corporate limits of the Town as now or hereafter constituted. Said payments shall be made on a quarterly basis. (b) Gross subscription revenue shall mean all revenue received by Grantee for providing basic, expanded basic, premium, pay and other video and audio services to subscribers. Sec. 10 -20. Forfeiture of franchise and liquidated damages (a) In addition to all other rights and powers pertaining to the Town by virtue of this ordinance or otherwise, the Town -13- reserves the right to revoke, terminate and cancel Grantee's franchise and all rights and privileges of the Grantee hereunder in the event that Grantee: (1) Violates any provision of this ordinance or its franchise or any lawful rule, order or determination of the Town or Town Commission made pursuant to this ordinance. (2) Becomes insolvent, is unable or unwilling to pay its debts, or is adjudged bankrupt. (3) Attempts to dispose of any of the facilities or property of the System with intent to prevent the Town from purchasing same. (4) Attempts to evade any of the provisions of this ordinance or practices any fraud or deceit upon the Town. (5) Fails to submit applications for all necessary licenses and permits within thirty (30) days after grant of its franchise, copies of which applications shall be filed with the Town Clerk, and /or fails to commence construction within sixty (60) days after Grantee's receipt of all required licenses and permits. (6) Fails to construct the system or to extend service in accordance with the provisions of Section 10 -5 of this chapter. The Town Manager may, rather than seeking a declaration of forfeiture, require the payment of liquidated damages of up to fifty dollars ($50.00) per day for failure to comply with the requirements of Section 10 -5 within sixty (60) days after notice by the Town to comply. The Town 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 Town's right to halt the running of liquidated damages and /or seek a forfieture of the franchise. (b) Such revocation, termination and cancellation shall be as follows: -14- (1) Notice shall be sent from the Town by the Town Manager to Grantee, by registered or certified mail or hand delivery. (2) Said notice shall specify in a general way, so as to be reasonably understood, the particular terms, conditions or provisions of the franchise or ordinance which have been or are being violated, and shall name a reasonable time not less than twenty (20) days thereafter, within which to strictly comply with such terms, conditions or provisions. (3) If Grantee shall, after service of such notice, fail to comply or undertake and maintain diligent efforts to comply with any of such terms, conditions or provisions within the time therein prescribed (not less than twenty (20) days), then the Town shall initiate a proceeding before the Town Commission for the forfeiture of Grantee's said franchise, grants, privileges, rights, licenses and immunities. (4) Upon failure of Grantee to comply with any such terms, conditions or provisions of said notice within the reasonable time specified therein, the Town may remove from any streets, alleys, or easements all property of Grantee, as if no franchise, grant, privilege, right, license or immunity had ever been given. Sec. 10 -21. Town's right of intervention Grantee agrees not to oppose intervention by the Town in any suit or proceeding to which Grantee is a party. Sec. 10 -22. Further agreement and waiver by Grantee The Grantee agrees to abide by all provisions of this ordinance and its franchise, and further agrees that it will not at any future time set up as against the Town or the Town Commission the claim that the provisions of this ordinance or its franchise are unreasonable, arbitrary or void. -15- Sec. 10 -23. Application for new franchise; duration and renewal of franchise; application and renewal fees. (a) Any application for a new franchise or for an expansion of an existing franchise shall be submitted to the Town Manager in triplicate and shall include, at a minimum, the following information: (1) The name, address and telephone number of the applicant and the name and address of the person or persons who are authorized to act on applicant's behalf. (2) If applicant is a corporation, partnership or any entity other than an individual, the name, address and telephone number of each person owning or controlling more than five percent (5%) of the voting rights or control of such entity. (3) Any agreements or arrangements whether or not in writing, with any individual(s), corporation(s), partnership(s) or other entity(ies) for the purchase, sale or other transfer of any ownershp interest in the System or any entity owning an interest in the System. (4) The details of any criminal proceeding against the applicant, any of the individuals or entities described in subparagraphs (2) and (3) above, any director or officer or manager of the applicant or any affiliated company. (5) The details of any civil proceeding in which the applicant, any officer, manager, or director of applicant, any of the individuals or entities described in subparagraphs (2) and (3) above or any affiliated company was found to be liable for or agreed to a settlement of an unfair, deceptive or anticompetitive business practice including any violation of state or federal antitrust laws. (6) The details of any penalty assessed or proceeding conducted against applicant, any of the individuals or entities described in subparagraphs (2) and (3) above, any director, officer or manager of applicant or any affiliated company arising from a violation or alleged violation of any franchise for cable television or similar services. -16- (7) The details of each cable television system owned, or managed by applicant, any of the persons named in subparagraphs (2) and (3) above, any director, officer or manager of the applicant or any attidated company including: (i) the location of the System, (ii) the number of subscribers, (iii) the number of years of ownership,. (iv) the number of years the System has existed, and (v) the name and address of a public in the city or county in which the System is located who has knowledge of the performance of the owners of the Systems. (8) The name and address and experience of the manager, chief technician and billing supervisior of the System. (9) The financial plan for the first three years of operation of the System in sufficient detail to show with particularity the sources of all funds to be used in the acquisition and operation of the System and the expenses to be incurred including all capital and operational expenses. (10) A detailed description of the System to be constructed including at a minimum: (i) the type and location of any antennas and satellite earth stations to be used, (ii) the headend design including a detail of all equipment to be used, (iii) the distribution system, including the cable plant, active and passive electronics power supplies, standby power supplies, and (iv) the type and model of converters to be used, (11) The channel capacity of the System. (12) The steps taken to insure that the System can be connected with other systems for area -wide broadcasts which may be locally orginated. OWC (13) A description of the System policies regarding restoration of interrupted service, System maintenance, receiving and acting on subscriber complaints, keeping records of complaints and the criteria for addition of employees for maintenance, repair and complaint response. (14) A detailed description of the area to be served and the timetable for construction of the System. (b) Within thirty (30) days of receipt of an application submitted pursuant to paragraph (a) above, the Town Manager shall notify the applicant of any apparent deficiencies in the information required. When all required information has been submitted, the Town Manager shall notify all holders of existing franchises and the applicant that the application is ready for initial review by the Town Commission which review shall occur no sooner than thirty (30) days after such notice. Such review shall be conducted at a public hearing after proper public notice. (c) In considering the application for the award or expansion of a franchise the Town Commission shall make an affirmative finding that (1) the level of service currently provided by existing Grantees is inadequate to and does not meet the demonstrated needs of the community, (2) that the existence of an additional franchise will not endanger service to the subscribers of any existing Grantee and (3) that the applicant has the demonstrated experience, financial ability, and character to construct the proposed System and make available a high quality Cable Television System to all of the residents of Gulf Stream. (d) All applications for a franchise or the expansion of an existing franchise shall be in the form required by the Town and shall be accompanied by a five thousand dollar ($5,000.00) nonrefundable application fee which shall be used by the Town to process the application and set up the terms of any new franchise agreements. Sec. 10 -24. Duration and acceptance of franchise (a) The rights and privileges granted hereunder shall commence on the date specitiAd in the franchise issued to Grantee and continue for a period of fifteen (15) years unless sooner terminated as herein provided or as provided in the franchise. (b) Within thirty (30) days after award of its franchise, Grantee shall file with the Town Clerk its unconditional acceptance of its franchise and agreement to comply with and abide by all of its provisions, terms, conditions, and requirements of the franchise and this ordinance. Sec. 10 -25. Renewal of franchise. (a) At the termination of the initial franchise period, the rights and privileges granted hereunder may be renewed for the existing Grantee pursuant to the provisions of Section 626 of the Cable Act. (b) All applications for a renewal of a franchise shall be in the form required by the Town and shall be accompanied by a five thousand dollar ($5,000.00) nonrefundable application tee which shall be used by the Town to process the application and set up the terms of any new franchise agreements. Sec. 10 -26. Erection, removal and common user of poles. (a) No underground facilities, poles or other wire - holding structures shall be erected by Grantee without prior approval of the Town Engineer with regard to location, height, type and any other pertinent aspect. However, the approval of the location of any underground facility, pole or wire - holding structure of Grantee shall not create a vested right in Grantee for the use of that location, and such poles or structures shall be removed or modified by Grantee at its own expense whenever the Town Manager reasonably determines that the public convenience would be enhanced thereby. -19- (b) Where poles or other wire- holding structures are already existing for use in serving the Town and are available for use by Grantee, but Grantee does not make arrangements for such use, the Town Commission may require Grantee to use such poles and structures it it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. (c) Where the Town or a public utility serving the Town desires to make use of the poles or other wire - holding structures of Grantee, but agreement therefor with Grantee cannot be reached, the Town Commission may require the Grantee to permit such use for such consideration and upon such terms as the Town Commission shall determine to be just and reasonable, if the Town Commission determines that the use would enhance the public convenience and would not unduly interfere with the Grantee's operations. Sec. 10 -27. Designation of channel capacity for public, educational or governmental use. Within one (1) year from the date of the award of a franchise hereunder but not before December 31, 1990, Grantee shall designate in writing and activate one channel for use by the Town, in common with other franchising authorities, for the broadcast by the Town or such other franchising authority or its duly established designee of such public, educational or governmental programming as desired from time to time by the Town or other franchising authority. The Town shall cooperate with other franchising authorities in utilizing the said channel. Sec. 10 -28. Leased Access Channels. When any Grantee shall have 36 or more (but less than 55) activated channels, as defined by Section 612 of the Cable Act, Grantee shall designate and make available to persons unaffiliated with the Grantee channels equaling ten percent (10 %) of such activated channels for commercial use upon such terms and conditions and for such access fees as shall be determined by -20- Grantee consistent with Section 612 of the Cable Act and the regulations thereunder. When Grantee shall have 56 or more such activated channels, Grantee shall designate and make available channels equaling fifteen percent (15 %) of such activated channels for such commercial use on such terms. At any time any channel(s) designated for commercial use hereunder are not actually being used by a third party, whether or not subject to a lease for such use, such channel(s) may be used by Grantee for any purpose consistent with this ordinance. This section shall be interpretted and construed to be consistent with the requirements of Section 612 of the Cable Act and the lawful regulations adopted thereunder. Pursuant to the authority granted under Section 612(h) of the Cable Act, the Town may require the lease of any channel space made available under this Section or under the Cable Act to prohibit or condition the exhibition of any programming which is, in the judgment of the Town, obscene or in conflict with community standards in that such programming is lewd, lascivious, filthy or indecent or otherwise unprotected by the Constitution of the United States. Sec. 10 -29. Rates and charges to subscribers. (a) The rates and charges for all cable television services offered by the Grantee, including all installation charges for such services, shall be set by the Grantee. (b) Notice of any increase in basic cable service rates and /or charges by the Grantee shall be given to subscribers in writing no less than thirty (30) days prior to the effective date of any such increase. Sec. 10 -30. Rules and Regulations. Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable Grantee to exercise its rights and to perform its obligations under ordinance and its franchise and to assure an uninterrupted -21- service to each and all its subscribers; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof and shall be filed with the Town. Sec. 10 -31. Publication costs. Grantee shall assume the cost of publication of its franchise as such publication is required by law, and such is payable upon Grantee's filing of acceptance of its franchise. Sec. 10 -32. 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 Town and the Grantee. All nonatfected sections and subsections shall be deemed separate, distinct and independent provisions and as such shall not be affected by the declaration of invalidity. Sec. 10 -33. Applicability and effective date. (a) This ordinance shall apply to all persons who apply for or are required to apply for a franchise, amendment to a franchise or renewal of a franchise for a Cable Television System in the Town. (b) This ordinance shall become effective upon adoption after second and final reading by the Town Commission. -22- PASSED AND ADOPTED on READING this $� day of �Ub 1986. MAYOR �. ATTEST: TOWN CLERK Q) bw. _' s.