96-15 ORDINANCE NO 96-15
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, PROVIDING THE INTERIM TERMS AND
CONDITIONS FOR THE OPERATION OF CABLE
TELEVISION SYSTEMS AND THE APPLICATION,
PROCEDURES AND REQUIREMENTS RELATING TO
THE GRANT OF FRANCHISES FOR THE
CONSTRUCTION, INSTALLATION, OPERATION AND
MAINTENANCE OF CABLE TELEVISION SYSTEMS,
EQUIPMENT AND FACILITIES IN, ON, ACROSS, ABOVE
OR THAT IN ANY MANNER WHATSOEVER USE THE
CITY'S PUBLIC RIGHTS OF WAYS AND TO ENSURE
THAT USE OF THE CITY'S PUBLIC RIGHTS OF WAYS IS
IN THE PUBLIC INTEREST AND IN CONFORMANCE
WITH APPLICABLE LAW; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY;
PROVIDING A SAVINGS CLAUSE AND EFFECTIVE
DATE.
WHEREAS, effective with the adoption of the Charter of the City of Aventura (the
"Charter") on November 7, 1995 , the City of Aventura, Florida was created as a mUnicipal
corporation pursuant to the Constitution of the State of Florida and the Home Rule Charter of
Metropolitar~ Dade County; and
WHEREAS, the City Council has determined it is in the public interest of the City of
Aventura to permit the operation of one or more cable television systems in the City; and
WHEREAS, one or more cable operators are occupying the City's public rights of ways
and operating cable systems pursuant to licenses granted by Metropolitan Dade CoUnty; and
WHEREAS, pursuant to Chapter 8AA-16 of the Code of Metropolitan Dade County,
cable operators operating in unincorporated areas of the County pay to the county a fee of 5% of
the gross revenues and operators in the incorporated areas pay to the County a fee of 3%; and
WHEREAS, under federal law, the maximum franchise fee that may be imposed on a
cable operator is 5% of the operator's gross revenues; and
WHEREAS, the City of Aventura, as now incorporated, is entitled to collect the
maximum fee permitted by applicable law less only that amount due to Dade County; and
WHEREAS, it is the intent of the City of Aventura to exercise its authority as a local
franchising authority to the fullest extent allowed by law; and
WHEREAS, pursuant to Section 621 of the Communications Act of 1934, as amended,
47 U.S.C. § 541, a cable operator may not provide cable service without obtaining a franchise
from the franchising authority; and
WHEREAS, pursuant to Section 4.03 of the Charter, the City Council shall take action to
grant, renew, or extend a franchise only by Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, THAT:
Section 1. Short Title.
This Ordinance shall be known and may be cited as City of Aventura, Florida Interim
Cable Television Ordinance.
Section 2. Creation of Ordinance No. 96-15
Ordinance No. 96-15 is hereby created to read as follows:
Section 3. .Definitions.
For the purpose of this Ordinance and any application made pursuant hereto, the
following terms, phrases, words and their derivations shall have the meanings given herein.
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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 words "shall" and "will" are mandatory, and "may" is permissive. Words
not otherwise defined herein or in any franchise agreement that might be granted hereunder shall
be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. § 521 et se_q_q., and
the Telecommunications Act of 1996, and as those Acts have and may hereinafter be amended
(collectively the "Communications Act"), and, if not defined therein, their common and ordinary
meaning.
A. "Activated Channel" means those channels engineered at the headend of a cable
system for the provision of services generally available to residential subscribers of the cable
system, regardless of whether such services actually are provided, including any channel
designated for public, educational, or governmental use. Channels on which signals flow in the
direction from the headend to the subscriber are referred to as "downstream channels". Where
the signal flows to the headend for re-distribution, it shall be referred to as an "upstream
channel".
B. "Access channel" means any channel on a cable system set aside without charge
by the cable operator for public, educational and/or local governmental use.
C. "Affiliate" means any person which directly or indirectly owns or controls a
grantee or Franchisee, any person which a grantee or Franchisee directly or indirectly owns or
which it controls, or any person under common ownership or control with a Grantee or
Franchisee.
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D. "Applicant" means any person submitting an application within the meaning of
this Ordinance.
E. "Application" means any proposal, submission or request to (1) operate a cable
system within the City; (2) construct and install a cable system within the City; (3) transfer a
franchise or control of the Franchisee; (4) renew a franchise; (5) modify a franchise; or (6) seek
any other relief from the City pursuant to this Ordinance, a franchise agreement, the
Communications Act, or other applicable law. An application includes an applicant's initial
proposal, submission or request, as well as any and all subsequent mnendments or supplements
to the proposal and relevant correspondence.
F. "Basic Cable Service" or Basic Service" means any service tier which includes
the retransmission of local television broadcast signals, and public, educational, or governmental
access channels.
G. "Business Day" or "Working Day" shall mean any Monday through Saturday,
52 weeks per year.
H. "Communications Act" means the Communications Act of 1934, 47 U.S.C. §
151 et seq., as that Act has and may hereinafter be amended.
I. "Cable operator" means any person who operates or otherwise controls a cable
system within the City.
J. "Cable service" means the transmission of video or other programming services
over a cable system to subscribers together with any subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming services.
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K. "Cable system," "cable television system," or "system," means any facility
consisting of a set of closed transmission paths or other transmission lines or forms of terrestrial
transmission and associated signal generation, reception and control equipment that is designed
to provide cable service which includes video programming and which is provided to multiple
subscribers within the City. Such term does not include (a) a facility that serves only to
retransmit the television signals of one (1) or more television broadcast stations; (b) a facility that
serves subscribers without using any public right of way; (c) a facility of a common carrier that is
subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47
U.S.C. § 201 et seq., except that such facility will be considered a cable system to thc extent it is
used in the transmission of video programming directly to subscribers, unless the extent of such
use is solely to provide interactive on demand services; (d) an open video system that complies
with Section 653 of the Telecommunications Act of 1996; or (e) any facilities of any electric
utility used solely for operating its electric utility systems. The foregoing definition of "cable
system" shall not be deemed to circumscribe the valid authority of the City to regulate the
activities of any other communications system or provider of communications services, including
but not limited to telephony and open video systems.
L. "City" means the City of Aventura, a municipal corporation of the State of
Florida, in its present incorporated form or in any later reorganized, consolidated, enlarged or
reincorporated form.
M. "Control of a Franchisee, grantee or applicant" means possession of the
ability to direct or cause the direction of the management or policies of a Franchisee, grantee or
applicant, or the operation of a Franchisee's system, either directly or indirectly, whether through
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ownership of voting securities, by contract or understanding, or in any other manner.
N. "County" means Metropolitan Dade County.
O. "Fair market value" means the price that a willing buyer would pay to a willing
seller for a going concern but with no value allocated to the franchise itself.
P. "FCC" means the Federal Communications Commission, or any successor
governmental entity thereto.
Q. "Franchise" means the right granted by the City to a Franchisee in a franchise
agreement to construct, maintain and operate a cable system under, on, and over Streets, roads
and any other public ways, rights-of-ways, or easements within all or specified areas of the City.
The term does not include any license or permit that may be required by this Ordinance or other
laws, ordinances or regulations of the City for the privilege of transacting and carrying on a
business within the City or for disturbing or carrying out any work on any Street.
R. "Franchise agreement" means a contract entered into in accordance with the
provisions of this or any applicable Ordinance between the City and a Franchisee that sets forth
the terms and conditions under which the franchise will be exercised.
S. "Franchisee" means any person granted a franchise pursuant to this or any
applicable Ordinance of the City who has entered into a franchise agreement with the City.
T. "Grantee" means any person granted the right to operate a cable system pursuant
to this or any applicable Ordinance, but who has not yet entered into a franchise agreement with
the City.
U. "Gross revenues" means all revenues recognized in accordance with Generally
Accepted Accounting Procedures (GAAP) directly or indirectly by the Franchisee and, any
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affiliates, subsidiaries or parent of the Franchisee from any source whatsoever arising from,
attributable to, or in any way derived from the operation of the cable system in the City. Gross
revenues includes, but is not limited to, fees charged subscribers for basic service; fees charged
subscribers for any optional, premium, per-channel or per-program service; fees charged
subscribers for amy tier of service other than basic service; installation, disconnection,
reconnection and change-in-service fees; late fees; leased access fees; fees, payments or other
consideration from programmers for carriage of programming on the system; revenue from
converter, remote, modem or any other equipment rentals or sales; revenues from studio and
studio equipment rental; revenues from leases of cable or fiber optic lines and other transmission
devices and equipment; revenues from transmission of data; revenues from consumer products
including but not limited to cable guides; advertising revenues allocable to the City based on a
percentage of subscriber base in the City divided by the subscriber base of the system. Such
percentage will then be multiplied by the systems' total advertising revenue to determine the
allocable gross revenue stemming from advertising; revenues from home shopping channels or
other sources allocable to the City, provided that where certain home shopping channel or other
such revenue is allocable to more than one franchise area due to common zip codes, the franchise
will allocate the percentage of revenue to the City which is equivalent to the percentage of the
City's population divided by the total population for the allocable franchise areas in question; and
the sale, exchange or cablecast by the Franchisee of any programming developed on or for access
channels or institutional users. Gross revenues shall be the basis for computing the franchise fee
imposed pursuant to Section 10 hereof. Gross revenues shall not include any taxes on services
furnished by the Franchisee which are imposed upon any subscriber or user by the State, County,
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City or other governmental unit and collected by the Franchisee on behalf of said governmental
unit and which the Franchisee passes on in full to the applicable tax authority or authorities
(provided, however, that the Franchise fee shall not be considered such a tax unless and until
applicable law as determined by a final non-appealable decision by a court of competent
jurisdiction prohibits franchise fees from being included within Gross Revenues or unless a
franchise agreement expressly excludes franchise fees from the calculation of gross revenues).
V. "Institutional Network" means a voice, data and/or video communications
system constructed, operated and/or maintained by the Franchisee for the City, the transmissions
on which are generally available only to, and intended to bc sent and received by, persons other
than cable subscribers generally.
W. "Intcrconnection" means the electronic connection of two or more cable systems
for thc purpose of sharing programming or other services.
X. "Law" means all duly enacted and applicable federal, state, county and City laws,
ordinances, codes, rules, regulations and orders.
Y. "Leased access channel" means a channel designated in accordance with
Section 612 of thc Communications Act, 47 U.S.C. § 532, for commercial usc by persons
unaffiliated with the Franchisee.
Z. "Overbuild" means a cable system constructed to serve subscribers in an area of
the City served by an existing cable system.
AA. "Person" means any individual, corporation, partnership, association, joint
venture, organization or legal entity of any kind, and any lawful trustee, successor, assignee,
transferee or personal representative thereof, but shall not mean the City.
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BB. "Service Tier" means a category of cable service provided by a Franchisee and
for which a separate charge is made by the Franchisee.
CC. "State of the Art" shall mean that technology or those services made available
on an operational, non-experimental basis to subscribers in any community in the State of Florida
by a franchisee or to any community with a population equivalent to or smaller than that of the
City of Aventura by a) any system controlled by a parent, affiliate or subsidiary of franchisee
within the United States or b) any Multiple System Operator operating a cable system in the
State of Florida.
DD. "Street or Streets" means the surface, the air space above the surface and the
area below the surface of any public street, highway, road, boulevard, concourse, driveway,
freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead,
wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way
or public place, including public utility easements dedicated for compatible uses, or any other
property in which the City holds any kind of property interest or over which the City exercises
any type of lawful control, and any temporary or permanent fixtures or improvements located
thereon, as may be ordinarily necessary and pertinent to construct and operate a cable system.
EE. "Subscriber" means any person who lawfully receives cable service delivered
over the cable system.
FF. "Subscriber base" means the total number of residential and commercial
subscribers within the City. For purposes of calculating subscribers under bulk or multi-user
contracts, the Franchisee shall count each unit included within a contract for service as one
subscriber. Franchisee shall not use any equivalency measures including calculation based on
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market rate.
GG. "System malfunction" means any cable system equipment, facility or signal
failure or malfunction that results in the loss of satisfactory service on one or more channels to
one or more subscribers. A malfunction is major if it affects ten (10) or more subscribers.
HH. "Transfer of a franchise" means any transaction in which (1) an ownership or
other interest in a Franchisee or its cable system is transferred from one person or group of
persons to another person or group of persons so that control ora Franchisee is transferred; or (2)
the rights and/or obligations held by a Franchisee under a franchise agreement are transferred or
assigned to another person, group of persons or business entity.
II. "Two-way capability" means the incorporation into a cable system of all
appropriate design and engineering characteristics and features so that two-way interactive
transmission, including but not limited to addressability, over the system can be implemented
and activated.
JJ. "Video channel or channel" means a portion of the electromagnetic frequency
spectrum which is used in a cable system and which is capable of delivering a television channel,
including the associated audio signal, as television channel is defined by the FCC by regulation
or otherwise.
Section 4. Intent and Purposes.
A. It is the intent of the City of Aventura to adopt a comprehensive cable television
ordinance to provide for the regulation of cable television franchises. However, pending
adoption of the comprehensive regulatory Ordinance it is the intent of the City and the purpose of
this Interim Ordinance to provide the terms and conditions pursuant to which cable systems shall
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be granted the right to operate within the City and to set forth the procedures for the application
and award of franchises.
B. It is the intent of the City and the purpose of this Interim Ordinance to promote
the public health, safety, and general welfare by providing an application procedure for the grant
of one or more franchises for the operation and/or construction of a cable system within the City;
to provide for the regulation to the extent permitted by applicable law, of each cable system
within the City in the public interest; to provide for the payment of fees and other valuable
consideration by cable operators to the City for the use of Streets by its cable system; to promote
the widespread availability of quality cable service to City residents and businesses, the City, and
other public institutions; to encourage the development of cable and other communications
technologies and cable systems as a means of communication between and among members of
the public, City businesses, the City, and other public institutions; to promote competitive cable
rates and services; to promote the safe and efficient use of City Streets; to enhance and maximize
the communicative potential of Streets used by cable systems; and to encourage the provision of
a diversity of information sources to City residents, businesses, the community, the City, and
other public institutions by cable technology.
C. Recognizing the continuing development of communications technology and uses,
it is the policy of the City to encourage competition, experimentation and innovation in the
development of cable system uses, services, programming and techniques that will be of general
benefit to the community to the extent consistent with applicable laws.
Section 5. Grant of authori~; franchise required.
A. The City may grant one or more franchises in accordance with this Ordinance.
B. No person may operate or construct a cable system or any other conununications
transmission facilities over, on, or under public streets in the City without a franchise granted by
the City unless otherwise authorized by law, and no person may be granted a franchise without
having entered into a franchise agreement with the City pursuant to this Ordinance or other such
Ordinance of the City as shall be applicable.
C. Any person operating a system within the City of Aventura, Florida pursuant to a
license granted by Metropolitan Dade County, pursuant to Chapter 8AA of the Code of
Metropolitan Dade County, shall be granted the right to continue to operate said system in those
areas being served prior to the effective date of the incorporation of the City of Aventura, prior to
entering into a franchise agreement with the City, provided that the grantee, (i) effective with the
date of the adoption of this Ordinance, the operator shall pay to the City of Aventura as
compensation for use of the public rights of ways, the maximum franchise fee permitted by law
less only that amount due to Dade County; (ii) no later than 30 days after the effective date of
this Ordinance, the operator shall file with the City, evidence of insurance coverage, a certificate
of indemnification, and shall post a security deposit pursuant to the requirements of Section 13
herein; (iii) no later than 30 days after the effective date of this ordinance, the grantee shall
submit to the City an application for the grant of a cable television franchise in the form required
by Section 8 herein; (iv) no later than 90 days after the effective date of this ordinance, the
grantee shall conform to all customer service standards required by Section 11 herein; and (v) no
later than 90 days after the City's adoption of a comprehensive Cable Television Regulatory
Ordinance, the grantee shall have obtained a cable television franchise from the City.
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D. Unless otherwise authorized by law, any right granted pursuant to this Ordinance
is solely for the provision of cable service and shall not be construed to authorize the provision of
telephone, non-cable video or other telecommunications service. However, any person including
but not limited to grantee shall, unless otherwise prohibited by applicable law, submit an
application to the City for the privilege of providing other telecommunications services
including, but not limited to telephone service and/or non-cable video programming services.
Section 6. Franchise characteristics.
A. A franchise authorizes use of City Streets for installing cables, wires, lines, optical
fiber, underground conduit, ducts, conductors, amplifiers, vaults, and other facilities as necessary
and pertinent to operate a cable system within a specified area of the City, but does not expressly
or implicitly authorize the Franchisee to provide service to, or install cables, wires, lines,
underground conduit, or any other equipment or facilities upon private property without owner
consent (except for use of compatible easements pursuant to Section 621 of the Communications
Act, 47 U.S.C. § 541(a)(2)), or to use publicly or privately owned conduits without a separate
agreement with the owners.
B. A franchise is nonexclusive, and will not expressly or implicitly preclude the
issuance of other franchises to operate cable systems within the City, or affect the City's right to
authorize use of City Streets to other persons to operate cable systems or for other purposes as it
determines appropriate.
C. The City reserves the right to reasonably designate where a Franchisee's facilities
are to be placed within the Streets.
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D. A franchise shall be a privilege which is in the public trust. No transfer of a
franchise shall occur without the prior consent of the City and unless application is made by the
Franchisee and City approval obtained pursuant to this or any applicable Ordinance of the City.
E. A Franchise granted to an applicant pursuant to an application submitted pursuant
this Ordinance to construct, operate and maintain a cable television system within a specified
Franchise Territory, shall be deemed to constitute both a right and an obligation on the part of the
Franchisee to provide the services and facilities of a cable television system as required by the
provisions of applicable Ordinances, of the City of Aventura, and the Franchise. The Franchise
Agreement shall incorporate by reference all of the provisions of the Franchisee's application for
the Franchise that is finally negotiated and agreed upon by the City and the Franchisee; and, all
relevant representations made by the Franchisee in its application and/or public hearings before
the City Council shall be deemed to be material and made for the purpose of inducing the City to
grant the Franchise in the form accepted.
F. Notwithstanding anything to the contrary, in the event that an applicant granted a
cable television franchise, its parent, affiliate or subsidiary elects to offer to subscribers video
programming services through any means or method not included within the definition of a cable
system, including but not limited to an "open video system", Franchisee shall remain subject to
all terms and conditions of the cable television Franchise granted by the City. Moreover, the City
reserves the right to require a Franchisee offering service over an open video system to maintain
such separate books and records as may be required by the City from time to time to the extent
not inconsistent with applicable FCC rules and regulations.
Section 7. Subject to other laws, police power.
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A. Any person operating a cable system in the City shall, at all times, be subject to
and shall comply with all applicable Federal, State and local laws, rules and regulations, and
shall at all times be subject to all lawful exercise of the police power of the City.
B. Subject to applicable law, except as may be specifically provided in this
Ordinance or under the terms of a franchise agreement and subject to the Communications Act,
the failure of the City, upon one or more occasions, to exercise a right or to require compliance
or performance under this Ordinance, a fi-anchise agreement or a license granted by the County
shall not be deemed to constitute a waiver of such right or a waiver of compliance or
performance.
Section 8. Applications for grant of franchise.
A. A written application shall be filed with the City for the grant of a cable television
franchise.
B. To be acceptable for filing, a signed original of the application shall be submitted
together with five (5) copies, be accompanied by the required non-refundable application filing
fee in the amount of $7,500, conform to any application forms, applicable request for proposals,
and contain all reasonably required information. The purpose of the filing fee is to defray a
portion of the City's cost in processing an application. The filing fee is therefore intended to be a
charge incidental to the awarding or enforcing of a franchise within the meaning of Section
622(g)(2) (D) of the Communications Act, 47 U.S.C. § 542(g)(2)(D), and may not be deducted
from the franchise fee imposed in a franchise agreement. All applications shall include the
names and addresses of persons authorized to act on behalf of the applicant with respect to the
application.
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C. All applications accepted for filing shall be made available by the City for public
inspection.
D. An application for the grant of a franchise shall be submitted by any person
operating a cable system in the City on the effective date hereof.
E. An application for the grant of a new franchise may be filed pursuant to a request
for proposals issued by the City or on an unsolicited basis. The City, upon receipt of an
unsolicited application, may issue a request for proposals. If the City elects to issue a request for
proposals upon receipt of an unsolicited application, the applicant may submit an amended
application in response to the request for proposals, or may inform the City that its unsolicited
application should be considered in response to the request for proposals, or may withdraw its
unsolicited application. An application which does not conform to the reasonable requirements
of a request for proposals may be considered nonresponsive and denied on that basis.
F. An application for the grant of an initial franchise shall contain, at minimum, the
information required in the "City of Aventura Cable Television Franchise Application" attached
hereto as Exhibit A.
Section 9. Grant of franchise.
A. In evaluating an application for franchise, City shall consider among other things
the following factors:
1. The economic impact upon private property within the franchise area;
2. Public need for such franchise, if any;
3. The capacity of public rights of way to acconunodate the cable system;
4. The present and future use of the public's rights of way to be used by the
cable system;
5. The potential disruption to existing users of the public's rights of way to
be used by the cable system and the resulting inconvenience which may occur to the public
6. The legal, technical and financial ability of the franchise applicant to
perform;
7. Other societal interests as are generally considered in cable television
franchising; and
8. Such other additional matters, both procedural and substantive, as the City
may in its sole discretion determine to be relevant, including but not limited to the extent to
which the proposal of the applicant will meet the anticipated cable related needs and interests of
the community and serve the public interest. Evaluation by the City shall not be based on the
content of the programming the applicant proposes to provide.
B. The City may make the grant of a franchise conditioned upon the completion of
construction within a reasonably prescribed time or upon the performance and fulfillment of
specific terms, which are to be set forth in the franchise agreement specifying that failure to
comply with the conditions will cause the franchise to become null and void without further
action by the City.
C. The City shall hold a public hearing to consider an application or applications.
The applicant(s) shall be notified of the hearing and shall be given an opportunity to be heard.
Based upon the application(s), the testimony presented at the public hearing, any
recommendations of the City Manager or staff, and any other information relevant to the
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application(s), the City shall decide by Resolution whether to grant or deny a franchise
application(s) and decide the terms and conditions of any franchise(s) granted. Upon the grant of
a franchise, the franchisee's application shall become an integral part of said franchise, and the
grantee shall be bound by the representations therein made.
D. If the City grants a franchise application, the City and the grantee shall agree on
the terms of a franchise agreement within forty-five (45) calendar days from the date of the City
Ordinance making the grant. This period may be extended for good cause by the City. If
agreement is not reached with the City within forty-five (45) calendar days from the date of the
City Resolution making the grant, or if the period is not extended by the City, the franchise grant
will be null and void without further action by the City. The City may, at its option, grant
franchisee a short term extension(s) until a franchise agreement is reached. The grant of such a
short term extension(s) will not confer on franchisee the right to an automatic acceptance,
transfer, modification or renewal.
E. Following at least ten (10) days prior notice to the Grantee and the public, the
City Commission may hold a public hearing at which it will receive comment on the proposed
franchise agreement.
F. After complying with the above requirements, the City Council shall approve or
disapprove the proposed franchise agreement by Resolution, or may direct that it be subject to
further negotiation.
G. The grant of franchise may be subject to a processing fee in an amount not to
exceed the reasonable and justifiable out-of-pocket costs incurred by the City in considering the
application, including but not limited to consulting, advertising and legal costs, less the amount
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of the filing fee set pursuant to Section 8. Within thirty (30) calendar days from the date of the
Resolution approving or denying the franchise agreement by the City Council, the City shall
notify the Franchisee of the amount of any processing fee and its method of calculation. If the
processing fee is not paid to the City within sixty (60) calendar days of the date of the City
Council Resolution approving or denying the franchise agreement, any approval granted by such
Resolution will be null and void. This processing fee is therefore intended to be a charge
incidental to the awarding or enforcing of a franchise within the meaning of Section 622
(g)(2)(D) of the Cable Acct, 47 U.S.C. § 542 (g)(2)(D), and may not be deducted from the
franchise fee imposed in a franchise agreement and shall not be passed through to subscribers.
Section 10. Franchise fee.
A. Grantee, or any person operating a cable system pending issuance of a franchise
by the City, as compensation for the privilege of the use of the City's streets to construct and/or
operate a cable system, shall pay to the City a franchise fee in an amount up to a maximum of
either (1) five percent (5%) of the Grantee's gross revenues derived directly or indirectly from the
operation of its cable system within the City during the term of its franchise; or (2) in the event
the Communications Act or other applicable law is amended to permit the City to assess a
franchise fee of a greater amount than that specified in (1) above, the Grantee agrees to pay to
the City the new amount.
B. Grantee's payment of the franchise fee to the City shall be reduced only by that
amount the Grantee is expressly required to pay to Dade County pursuant to any applicable cable
license, franchise or ordinance of the County. Notwithstanding anything to the contrary, Grantee
shall pay to the City the full amount of all fees to which it is entitled pursuant to this Ordinance
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on revenues not expressly included in the definition of "gross revenues", pursuant to Dade
County Ordinance (No. 90-73) with no reduction for payments to the County.
C. A Grantee shall pay the franchise fee due to the City on a quarterly basis.
Payment for each quarter shall be made to the City not later than thirty (30) calendar days after
the end of each calendar quarter.
D. A Grantee shall file with the City, on a quarterly basis with the payment of the
franchise fee, a financial statement setting forth the computation of gross revenues used to
calculate the franchise fee for the preceding quarter and a detailed explanation of the method of
computation. The statement shall be certified by a certified public accountant or the Grantee's
chief financial or other duly authorized officer. The Grantee will bear the cost of the preparation
of such financial statements.
E. Subject to applicable law, no acceptance by the City of any franchise fee payment
shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such
acceptance of payment be construed as a release of any claim the City may have for additional
sums payable.
F. The franchise fee payment is not a payment in lieu of any other tax, fee or
assessment.
G. The City may, from time to time, and upon reasonable notice, inspect, copy and
audit amy and all books and records of the Grantee relevant to the determination of gross
revenues and the computation of franchise fees due, and may recompute any amounts determined
to be payable under the franchise. The cost of the audit will be borne by the Grantee if, as a
result of the audit, the City determines that the Grantee has underpaid the franchise fees owed in
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an amount equal to or exceeding two percent (2%) of the franchise fees actually paid. A Grantee
shall make all books and records necessary to satisfactorily perform the audit readily available to
the auditors in Dade County, for inspection and copying or in the alternative, Grantee shall pay
all costs necessary for the City to perform the audit at a location outside of Dade County.
H. In the event that a franchise fee payment is not received by the City on or before
the due date set forth in subsection B above, or is underpaid, the Grantee will pay a late charge of
eighteen (18%) percent of the amount of the unpaid or underpaid franchise fee payment,
provided however, that such rate does not exceed the maximum amount allowed under Florida
law. Any interest and/or late charges paid by Grantee is intended to be a charge incidental to the
enforcing of a franchise within the meaning of Section 622 (g)(2)(D) of the Communications
Act, 47 U.S.C. § 542 (g)(2)(D), and may not be deducted from the franchise fee imposed by this
Ordinance or any franchise agreement.
I. When a grant or franchise terminates for whatever reason, the Grantee or
Franchisee shall file with the City within ninety (90) calendar days of the date its operations in
the City cease a financial statement, certified by a certified public accountant or the Grantee's
chief financial officer, showing the gross revenues received by the Grantee since the end of the
previous fiscal year. Adjustments will be made at that time for franchise fees due to the date that
the Grantee's operations ceased.
Section 11. Customer service requirements.
A. Any person operating a cable system shall maintain all parts of its system in good
condition and in accordance with standards generally observed by the cable television industry.
Sufficient employees shall be retained to provide safe, adequate, and prompt service for all of its
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customers and facilities.
B. A Grantee or Franchisee shall maintain at least one conveniently located business
office and service center within the City limits to which subscribers may telephone without
incurring added message units or toll charges. This business office shall be open at minimum
from 8:00 a.m. to 6:00 p.m., Monday through Friday, and some weekend and evening hours.
Further, Grantee shall locate, construct, design, staff, operate and maintain said office(s) so as to
provide ail subscribers, including but not limited to those subscribers who may be elderly,
handicapped or otherwise impaired, with a customer friendly environment. The office shall
make available for all customers 1) parking within reasonable proximity of the office and 2)
sufficient covered waiting areas and adequate seating capacity.
C. Grantee shall maintain a listed local, toll-free telephone number and employ a
sufficient number of telephone lines, personnel and answering equipment or service to allow
reasonable access by subscribers and members of the public to contact the Grantee on a full-time
basis, twenty-four (24) hours per day, seven (7) days per week including holidays.
Knowledgeable, qualified Grantee representatives will be available to respond to customer
telephone inquiries, twenty-four (24) hours per day, seven (7) days per week including holidays.
D. Grantee shall answer all customer service and repair telephone calls made under
normal operating conditions within thirty (30) seconds, including wait time and within an
additional thirty (30) seconds to transfer the call. Customers shall receive a busy signal less than
three (3) percent of the time. These standards shall be met no less than ninety (90) percent of the
time under normal operating conditions, measured on a quarterly basis.
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E. A Grantee shall employ and maintain sufficient qualified personnel and
equipment to be available (i) to accept payments; (ii) to exchange or accept converters or other
equipment; (iii) to receive subscriber complaints or requests for service or repairs on a full-time
basis, twenty-four (24) hours per day, seven (7) days per week; (iv) to initiate service
installations, undertake normal repairs, initiate action with respect to any subscriber service
complaints within twenty-four (24) hours; (v) to enable a service technician to respond to
service calls twenty-four (24) hours per day, seven (7) days a week including holidays when
more than 2 subscribers served from the same nearest active electronic device, such as an
amplifier or node, call with the same complaint.
F. Grantee must meet each of the following standards no less than ninety-five (95)
percent of the time under normal operating conditions as measured on a quarterly basis:
1. Standard installation work shall be performed within seven (7) calendar
days after an order has been placed except in those instances where a subscriber specifically
requests an installation date beyond the seven (7) calendar day period. "Standard" installations
are up to one hundred and twenty-five (125) feet from the existing distribution system. If
scheduled installation is neither started nor completed as scheduled, the subscriber will be
telephoned by an employee of the Grantee the same day. Evening personnel shall also attempt to
call subscribers at their homes between the hours of 5:30 and 8:00 p.m. If the call to the
subscriber is not answered, an employee of the Grantee shall telephone the subscriber the next
day;
2. Grantee will respond to service interruptions promptly and in no event
later than twenty-four (24) hours after the interruption becomes known. Other service problems
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will be responded to promptly and in no event later than forty-eight (48) hours after the problem
becomes known. All service interruptions, and service problems within the control of grantee,
will be corrected within seventy-two (72) hours after receipt of a complaint;
3. The appointment window alternatives made available for installations,
service calls, repairs, and other installation activities will be either a specific time, a four-hour
time block during normal business hours, or at the election and discretion of the subscriber, "all
day";
4. Grantee may not cancel an appointment with a subscriber after the close of
business on the business day prior to the scheduled appointment; and
5. If at any time an installer or technician is running late for a scheduled
appointment, an attempt to contact the customer will be made and the appointment rescheduled
as necessary at a time which is convenient for the customer.
G. Installation work shall be prioritized as follows:
1. Service change and rescheduling of appointments for existing subscribers;
2. Installation of service for new subscribers;
3. Disconnection of service for existing subscribers.
Subscribers who have experienced two (2) missed installation or service appointments due to the
fault of Grantee shall receive installation free of charge. If the installation was to have been
provided free of charge or if the appointment was for service or repair, the subscriber shall
receive a credit on its bill of not less than twenty dollars ($20.00).
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H. Disconnection.
1. Voluntary Disconnection.
(a) A subscriber may terminate service at any time.
(b) A Grantee shall promptly disconnect any subscriber who so
requests from the Grantee's cable system. No period of notice prior to voluntary termination of
service may be required of subscribers by any Grantee. So long as the subscriber returns
equipment within three (3) business days of the disconnection, no charge may be imposed by any
Grantee for such voluntary disconnection, or for any cable services delivered after the date of
disconnect request.
(c) A subscriber may be asked, but not required, to disconnect the
Grantee's equipment and return it to the business office.
(d) Any security deposit and/or other funds due the subscriber shall be
refunded on disconnected accounts after the converter has been recovered by the Grantee. The
refund process shall take a maximum of thirty (30) days from the date disconnection was
completed to the date the customer receives the refund.
2. Involuntary Disconnection. If a subscriber fails to pay a monthly
subscriber or other fee or charge, the Grantee may disconnect the subscriber's service outlet;
however, such disconnection shall not be effected until thirty-five (35) days after the due date of
the monthly subscriber fee or other charge, and ten (10) days advance written notice of intent to
disconnect to the subscriber in question. If the subscriber pays within thirty-five (35) days of the
due date and after notice of disconnection has been given, the Grantee shall not disconnect.
After disconnection, upon payment by the subscriber in full of all proper fees or charges,
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including the payment of the reconnection charge, if any, the Grantee shall promptly reinstate
service.
3. Nothing in this Ordinance shall be construed to prevent the Grantee from
removing its property from a subscriber's premises upon the termination of service consistent
with FCC roles and regulations and any other applicable law. At the subscriber's request, a
Grantee shall remove all of its facilities and equipment from the subscriber's premises within
thirty (30) calendar days of the subscriber's request. Where removal is impractical, such as with
buried cable or internal wiring, facilities and equipment may be disconnected and abandoned
rather than removed, tmless there is a written agreement stating otherwise, provided, however,
that such agreement must be consistent with applicable law and FCC rules.
I. Grantee shall intentionally interrupt service only for good cause and for the
shortest time possible. Grantee shall use its best efforts to insure that such interruptions shall
occur only during the hours of 1:00 a.m. to 6:00 a.m., except during a rebuild or upgrading of the
cable system. Grantee shall maintain a written log for all intentional service interruptions.
J. Grantee shall notify the City Manager immediately if a service interruption affects
fifty or more subscribers for a time period greater than four hours.
K. Grantee shall cause all its field employees to wear a picture identification badge
indicating their employment by Grantee. This badge shall be clearly visible to the public.
L. A Grantee shall develop written procedures for the investigation and resolution of
all subscriber or City resident complaints, including, but not limited to, those regarding the
quality of service and equipment malfunction, which procedures shall be subject to the review
and approval by the City Manager. A subscriber or City resident who has not been satisfied by
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following the Grantee's procedures may file a written complaint with the City Manager, who will
investigate the matter and, in consultation with the Grantee as appropriate, attempt to resolve the
matter. A Grantee's good faith or lack thereof in attempting to resolve subscriber and resident
complaints in a fair and equitable manner will be considered in connection with the Grantee's
renewal application. Grantee shall maintain a complete list of all complaints not resolved within
seven (7) days of receipt and the measures taken to resolve them. This list shall be compiled in a
form to be approved by the City Manager. It shall be compiled on a monthly basis. The list for
each calendar month shall be supplied to the City Manager no later than the 15th day of the next
month. Grantee shall also maintain a list of all complaints received, which list will be available
to the City.
M. Grantee shall permit the City designee to inspect and test the system's technical
equipment and facilities upon reasonable notice not to be less than forty-eight (48) hours.
N. Grantee shall abide by the following requirements governing communications
with customers, bills and refunds:
1. Each Grantee shall provide to subscribers written information in each of
the following areas at the time of installation, at least once annually, and at any future time upon
request by the Subscriber:
(a) How to use the cable service;
(b) Installation and service maintenance policies;
(c) The products and services offered;
(d) Prices and service options;
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(e) Channel positions of programming carried on the system;
(f) The Grantee's procedures for the receipt and resolution of customer
complaints, the Grantee's address and telephone number to which complaints may be reported,
and the hours of operation;
(g) The telephone number and address of the City's office and the
County's office designated to handle cable television complaints and inquiries shall be printed on
the back of the bill;
(h) The availability of a "lock-out" device;
(i) The Grantee's information, collection, and disclosure policies for
the protection of a subscriber's privacy.
2. In addition, each Grantee shall provide written notice in its monthly
billing, at the request of the City, of any City meeting regarding requests or applications by the
Grantee for renewal, transfer or modification of its license or change in service, rates or charges
to subscribers. The City shall make such a request in writing, no less than forty-five (45) days
prior to the mailing of any billing by Grantee. Said notices shall be made at Grantee's expense
and said expense shall not be considered part of the franchise fee assessed pursuant to this
Ordinance and shall not be regarded as a franchise fee, as the term is defined in Section 622 of
the Communications Act, 47 U.S.C. Section 542.
3. Grantee's bills will be clear, concise and understandable.
4. Refund checks will be issued promptly, but no later than the earlier of
thirty (30) days or the customer's next billing cycle following the resolution of a refund request,
or the return of the equipment supplied by the Grantee if service is terminated.
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5. Credits for service will be issued no later than the customer's next billing
cycle following the determination that a credit is warranted.
6. A Grantee shall provide subscribers, the City Manager, and the City
Council with at least thirty (30) days advance written notice of any changes in rates, charges,
channel lineup, or initiations or discontinuations or changes of service or services offered over
the cable system.
O. A Grantee shall provide a pro-rated 24-hour credit to the subscriber's account for
any period of four hours or more within a 24-hour period during which a subscriber experienced
an outage of service or substantial impairment of service, whether due to a system malfunction or
other cause.
P. Billing.
1. The Grantee's first billing statement after a new installation or service
change shall be pro-rated as appropriate and shall reflect any security deposit.
2. The Grantee's billing statement must be fully itemized, with itemizations
including, but not limited to, basic and premium service charges and equipment charges. Bills
will also clearly delineate all activity during the billing period, including optional charges,
rebates and credits.
3. The Grantee's billing statement must show a specific due date not earlier
than ten (10) days after the date of the beginning of the service period. Any balance not received
within ten (10) days after the due date may be assessed an administrative charge. The charge
will appear on the following month's billing statement.
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(a) Any administrative charge applied to unpaid bills shall be subject
to regulation by the City consistent with applicable law.
(b) Subscribers shall not be charged an administrative fee, a late fee or
otherwise penalized for any failure by the Grantee, its employees, or contractors, including
failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a
payment timely made.
4. The Grantee must notify the subscriber that he or she can remit payment in
person at the Grantee's office in the City and inform the subscriber of the address of that office.
Q. A Grantee may not substantially alter the service being provided to a subscriber
(including by re-tiering, restructuring a tier or otherwise) without the express permission of such
subscriber, unless it complies with this subsection.
1. If a Grantee wishes to alter the service being provided to a subscriber
(including by re-tiering, restructuring a tier or otherwise) in such a way that the subscriber will
no longer be able to obtain the same package of services, then the Grantee must provide the
subscriber with thirty (30) days notice of such alteration, explain the substance and the full effect
of the alteration, and provide the subscriber the right within the thirty (30) day period following
notice, to opt to receive any combination of services offered by the Grantee.
2. Except as provided herein, no charge may be made for any service or
product which the subscriber has not affirmatively indicated, in a manner separate and apart from
payment of the regular monthly bill, that he or she wishes to receive.
R. Grantee shall certify in writing to the City on January 1 and July 1 of each year
based upon internal due diligence by the Grantee that to the best of Grantee's knowledge it is in
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substantial compliance with the standards set forth in this Section 11. At the request of the City,
the Grantee shall submit such documentation, as may be required, to demonstrate Grantee's
compliance with this Section 11. This documentation shall be submitted within forty five (45)
days of the Grantee's receipt of the City's request.
S. Responsibility for the administration of this Ordinance and any franchise granted
hereunder and for the resolution of all complaints against a Grantee regarding the quality of
service, equipment malfunctions, and related matters, including the authority to order refunds or
fees, is hereby delegated to the City Manager, who is empowered, among other things, to settle,
or compromise any controversy arising from operations of the Grantee, either on behalf of the
City, the Grantee or any subscriber, in accordance with the best interests of the public. In cases
where requests for service have been ignored or in cases where the service provided is
unsatisfactory for whatever reason, the City Manager shall have the power to require the Grantee
to provide service if in the opinion of the City Manager such request for service is reasonable.
Provided, that any person aggrieved by a decision of the City Manager, including the Grantee,
may appeal the matter to the City Council for hearing and determination. The City Council may
accept, reject or modify the decision of the City Manager. No adjustment, settlement, or
compromise, whether instituted by the City Manager or by the City Council shall be contrary to
the provisions of this Ordinance or any franchise agreement issued pursuant to this Ordinance,
and neither the City Manager nor the City Council, in the adjustment, settlement, or compromise
of any controversy shall have the right or authority to add to, modify or delete any provision of
this Ordinance or of the Grantee.
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T. 1. In addition to the powers delegated in subsection 11 above, the City
Manager shall have the authority to order refunds from a Grantee to individual cable television
subscribers who have submitted a written complaint to the City and to assess fines against a
Grantee for any violation of this Ordinance or any franchise issued pursuant to this Ordinance,
which fines will be paid to the City.
2. In ordering refunds to cable television subscribers, the City Manager shall
be governed by the schedule set out below in which the refund indicated is expressed as a
percentage of the subscriber's monthly bill. The refunds listed are to be made on a per violation
basis with each day of a continuing violation constituting a separate violation. The refund
ordered by the City Manager pursuant to this Section 11 shall not exceed 100 percent of a
subscriber's monthly bill, unless a violation has continued at least 30 days from the date first
reported to the Grantee.
SCHEDULE OF REFUNDS TO SUBSCRIBERS
Single Violation of: Maximum Refund
(a) Failure to comply with 10%
Section 11 (B), hereof
(b) Failure to comply with the telephone 10%
availability requirements of
Section 1 I(C) and 1 I(D), hereof
(c) Failure to comply with the repair 50%
and installation requirements of
Section 11 (F), hereof.
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3. In assessing fines against a Grantee, the City Manager shall be governed
by the schedule set out below. The fines listed are to be assessed on a per violation basis with
each day of a continuing violation constituting a separate violation.
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SCHEDULE OF FINES
SINGLE VIOLATION OF: MAXIMUM FINES
(a) Section A, hereof. $100.00
(b) Section B, hereof. $300.00
(c) Section C, hereof. $300.00
(d) Section D, hereof. $300.00
(e) Section E and F, hereof. $300.00
(f) Section G and H, hereof. $100.00
(g) Section I, hereof. $500.00
(h) Section J, hereof. $200.00
(i) Section K, hereof. $100.00
(j) Section L, hereof. $500.00
(k) Section M, hereof. $500.00
(1) Section N(1)(a)-(i), hereof. $100.00
(m) Section N(2), hereof. $500.00
(n) Section N(3)-N(6), hereof. $200.00
(o) Section O, hereof. $500.00
(p) Section P and Q, hereof. $300.00
(q) Section R, hereof. $500.00
4. Prior to ordering a refund and/or assessing a fine, the City Manager shall
mail the Grantee written notice by certified or registered mail of the proposed refund and/or fine,
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specifying the violation at issue. The Grantee shall have thirty (30) days from the date of receipt
of the written notice to file a written response to the City Manager's notice. Grantee's written
response shall be signed by management level personnel of Grantee and all statements contained
therein will be regarded as material representations to the City.
5. Prior to ordering a refund and/or assessing a fine, the City Manager shall
consider any justification or mitigating factor advanced in Grantee's written response, including
but not limited to rebates or credits to the subscriber or a cure of the violation. The City Manager
may, after consideration of the response of the Grantee, waive or reduce any proposed refund or
fine.
6. Subsequent to the notice of proposed refund and/or fine to Franchisee and
consideration of the Grantee's response, if any, the City Manager may issue an assessment of
refund or fine. The refund and/or fine shall be paid within thirty (30) days of written notice to
the Grantee. This refund and/or fine shall constitute liquidated damages to the subscriber and
City for the violation and the City may enforce payment of the refund or fine in any court having
jurisdiction. It is the intent of the City to determine fines/refunds as a reasonable estimate of the
damages suffered by the City and/or its subscribers, whether actual or potential, and may include
without limitation, increased costs of administration and other damages difficult to measure.
7. Grantee may appeal any decision of the City Manager directly to the City
Council within thirty (30) days of notice of the decision to the Grantee.
8. Any person who intentionally files a false complaint against a Grantee
shall be subject to a fine in the amount of $50 for the first violation and $100 for each subsequent
violation.
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9. Intentional misrepresentation by a Grantee in any response to a notice of
proposed refund and/or fine shall be grounds for license revocation.
U. In addition to complying with the customer service standards set forth in this
Ordinance or in any franchise issued pursuant to this Ordinance, a Grantee shall comply with all
customer service standards applicable to cable systems of the FCC and any other applicable
federal, state or county law concerning customer service standards, consumer protection, and
unfair or deceptive trade practices.
V. The City expressly reserves the right to consider violations of the customer
service requirements by a grantee in deciding whether to enter into a franchise agreement.
Section 12. Use of Streets.
A. Any pavements, sidewalks, curbing or other paved area taken up or any
excavations made by a Grantee shall be done under the supervision and direction of the City
under permits issued for work by the proper officials of the City, and shall be done in such
manner as to give the least inconvenience to the inhabitants of the City. A Grantee shall, at its
own cost and expense, and in a manner approved by the City, replace and restore any such
pavements, sidewalks, curbing or other paved areas in as good a condition as before the work
involving such disturbance was done, and shall also prepare, maintain and provide to the City
Manager or his designee, full and complete plats, maps and records showing the exact locations
of its facilities located within the public Streets, ways, and easements of the City. These maps
shall be available in any form requested by the City Manager or his designee.
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B. Except to the extent required by law, a Grantee shall, at its expense, protect,
support, temporarily disconnect, relocate, or remove, any of its property when required by the
City by reason of traffic conditions, public safety, Street construction, Street msurfacing or
widening, change of Street grade, installation or sewers, drains, water pipes, power lines, signal
lines, tracks, or any other type of municipal or public utility improvements; provided, however,
that the Grantee shall, in all such cases, have the privilege of abandoning any property in place.
C. A Grantee 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 same, and the Grantee shall have the authority to require such payment in advance,
except in the case where the requesting person is the City, in which case no such payment shall
be required. The Grantee shall be given not less than five calendar (5) days advance notice to
arrange for such temporary wire changes.
D. A Grantee shall upon notice to the City of not less than 7 days, have the authority
to trim the trees or other natural growth upon and overhanging the Streets so as to prevent the
branches of such trees from coming in contact with the wires, cables and other equipment of the
Grantee, except that, at the option of the City, such trimming may be done by it or under its
supervision and direction at the expense of the Grantee.
E. A Grantee shall use, with the owner's permission, existing underground conduits
(if applicable) or overhead utility facilities whenever feasible. Copies of agreements between a
Grantee and third party for use of conduits or other facilities shall be filed with the City provided
that the Grantee shall have the right to redact proprietary and confidential information in such
37
agreements as it pertains to financial axrangements between the parties.
F. All wires, cable lines, and other transmission lines, equipment and structures
shall be installed and located to cause minimum interference with the rights and convenience of
property owners. The City may issue such rules and regulations concerning the installation and
maintenance of a cable system installed in, on, or over the Streets, as may be consistent with this
Ordinance and the franchise agreement.
G. All safety practices required by law shall be used during construction,
maintenance and repair of a cable system. A Grantee shall not place facilities, equipment or
fixtures where they will interfere with any gas, electric, telephone, water, sewer or other utility
facilities, or obstruct or hinder in any manner the various utilities serving the residents of the City
of their use of any Street or any other public right of way.
H. A Grantee shall, at all times:
1. Install and maintain its wires, cables, fixtures and other equipment in
accordance with the requirements of the City's Building Code and Electrical Safety Ordinances
and any other applicable Building or Electrical Safety Code, and in such manner that they will
not interfere with any installations of the City.
2. Keep and maintain in a safe, suitable, substantial condition, and in good
order and repair, all structures, lines, equipment, and connections in, over, under, and upon the
Streets, sidewalks, alleys, and public ways or places of the City, wherever situated or located.
I. On Streets where electrical or telephone utility wiring is located underground,
either at the time of initial construction of a cable system or at any time thereafter, a Grantee's
cable shall also be located underground at the Grantee's expense. Between a Street and a
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subscriber's residence, a Grantee's cable must be located underground if both electrical and
telephone utility wiring are located underground. The City shall encourage, to the extent
feasible, that the public utility and the Grantee cooperate in opening up trenches and making such
trenches available to all parties with the understanding that the costs of opening and refilling of
such trenches would be shared equally by all users of such trenches. Grantee shall at all times
comply with the requirements of the Trench Safety Act.
J. In the event the use of any part of a cable system is discontinued for any reason
for a continuous period of twelve (12) months, or in the event such system or property has been
installed in any Street without complying with the requirements of this Ordinance or a franchise
agreement, or the franchise has been terminated, canceled or expired, the Grantee, within thirty
(30) days after written notice by the City, shall commence removal from the Streets of all such
property as the City may require.
K. The City may extend the time for the removal of Grantee's equipment and
facilities for a period not to exceed one hundred eighty (180) days, and thereafter such equipment
and facilities may be deemed abandoned.
L. In the event of such removal or abandonment, the Grantee shall restore the area to
as good a condition as prior to such removal or abandonment.
Section 13. Insurance; Indemnification; Security Fund
A. Any person operating a cable system within the City shall, no later than 30 days
after the effective date of this Ordinance, provide evidence of the following in a form acceptable
to the City Manager:
1. Liability insurance coverage insuring the operator naming the City as an
additional insured in an amount not less than:
(a) $500,000 for property damage in any one accident;
(b) $500,000 for personal bodily injury to any one person; and
(c) $1 Million for personal bodily injury in any one accident
2. Worker's compensation and employee liability insurance meeting all
requirements of Florida law.
B. A statement signed by the operator wherein the operator, at it's sole cost and
expense shall indemnify, hold harmless, and defend the City, it's officials, Boards, Council
members, agents and employees, against any and all claims, causes of actions, proceedings,
judgments for damages or equitable relief and costs and expenses arising out of the construction,
maintenance or operation of its cable system or other occupancy of the City's public rights of
way.
C. Any person operating a system within the City shall post with the City a security
deposit in a form acceptable to the City to ensure the operator's performance of and compliance
with all provisions of this Ordinance in an amount that the City determines is necessary to
protect the public and to provide adequate incentives to the operator to comply with this
Ordinance and to enable the City to effectively enforce compliance therewith.
Section 14. Rates.
A. Nothing in this Ordinance shall prohibit the City from regulating rates for cable
services to the full extent permitted by law.
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B. Any rate or charge established for cable television service, equipment, repair and
installation shall be reasonable to the public. Upon written request from the City or its agent,
Grantee shall provide all requested data, records and documentation to show the reasonableness
of the rates.
Section 15. Administration.
A. The City Manager, either directly or through a duly appointed designee, shall have
the responsibility for overseeing the day-to-day administration of this Ordinance and franchise
agreements. The City Manager shall be empowered to take all administrative actions on behalf
of the City, except for those actions specified in this Ordinance that are reserved to the City
Council. The City Manager may recommend that the Council take certain actions with respect to
the franchise. The City Manager shall keep the Council apprised of developments in cable and
provide the Council with assistance, advice and recommendations as appropriate.
B. The City Council shall have the sole authority to grant franchises, authorize the
entering into of franchise agreements, modify franchise agreements, renew or deny renewal of
franchises, revoke franchises, authorize the transfer of a franchise, and regulate rates for cable
services.
Section 16. Force Majeure.
In the event a Grantee's performance of or compliance with any of the provisions of this
Ordinance or the Grantee's franchise agreement is prevented by a cause or event not within the
Grantee's control, such inability to perform or comply shall be deemed excused and no penalties
or sanctions shall be imposed as a result thereof, provided, however, that Grantee uses all
43_
practicable means to expeditiously cure or correct any such inability to perform or comply. For
purposes of this Ordinance and any franchise agreement granted or renewed hereunder, causes
or events not within a Grantee's control shall include, without limitation, acts of God, floods,
earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots
or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency
or court. Causes or events within Grantee's control, and thus not falling within this section, shall
include, without limitation, Grantee's financial inability to perform or comply, economic
hardship, and misfeasance, malfeasance or nonfeasance by any of Grantee's directors, officers,
employees, contractors or agents.
Section 17. Applicability.
A. This Ordinance shall be applicable to all cable systems now existing in the City
on the date hereof and to all applicants for cable franchises.
B. Any person shall notify the City in writing within thirty (30) calendar days of the
passage of this Ordinance, or any subsequent amendment thereof, of:
1. any provision which it believes should not be applicable to it.
2. the reason for each such claim of non-applicability.
C. Failure to notify the City as provided in subsection (B) of this Section shall
constitute a waiver of any right to object.
Section 18. Violations of Ordinance.
A. Whenever the City finds that a person has allegedly violated any provision of this
Ordinance, not otherwise described in Section 11 herein, such person shall have fifteen (15) days
subsequent to receipt of notice to correct the violation. If after 15 days, the recipient has failed to
42
correct the alleged violation, the City shall determine if the person has committed a violation and
shall make written findings of fact. If a violation is found, the person shall pay to the City Five
Hundred Dollars ($500) per day, or any part thereof for each day each violation occurs or
continues. The City reserves the right to withdraw said payments from the security fund upon 3
days written notice to grantee. It is the intent of the City to impose the above discussed fines as a
reasonable estimate of the damages suffered by the City and/or its subscribers, whether actual or
potential, and may include without limitation, increased costs of administration and other
damages difficult to measure.
B. The City hereby reserves any and all rights to require that a person remove its
equipment and facilities from the City's public rights of way where the City has determined and
issued a written decision finding that the damages suffered by the City or its residents can not be
remedied by any reasonable means other than by termination or revocation of a person's rights to
use the City's rights of ways.
Section 19. Municipal cable system ownership authorized.
A. To the full extent permitted by law, the City may acquire, construct, own, and/or
operate a cable system.
B. Nothing in this Ordinance shall be construed to limit in any way the ability or
authority of the City to acquire, construct, own, and/or operate a cable system to the full extent
permitted by law.
Section 20. Reservation of rights.
A. The City reserves the right to amend this Ordinance as it shall find necessary in
the lawful exercise of its police powers.
43
B. Any additional regulations adopted by the City shall be incorporated into this
Ordinance and complied with by all Grantees and Franchisees within thirty (30) days of the date
of adoption of such additional regulations.
C. The City reserves the right to exercise the power of eminent domain to acquire the
property of Grantee's cable system, consistent with applicable federal and state law.
Notwithstanding anything to the contrary, this Section shall not enlarge or restrict the City's
exercise of eminent domain except to the extent provided by applicable law.
D. The City shall at all times have the right, upon reasonable notice and during
normal business hours, to examine and copy a Grantee's records and to inspect a Grantee's
facilities to the extent needed to monitor a Grantee's compliance with and performance under this
Ordinance and the Grantee's franchise agreement.
Section 21. Repeal of Conflicting Ordinances.
That ordinances or parts of ordinances, and all resolutions or parts of resolutions in
conflict herewith be and the same are hereby repealed to the extent of such conflict.
Section 22. Savings.
All rates, fees, charges and financial obligations previously accrued pursuant to the
ordinances and resolutions repealed pursuant to Section 19 above shall continue to be due and
owing until paid.
Section 23. Severabilitv.
If any part, section, subsection, or other portion of this Ordinance or any application
thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason,
such part, section, subsection, or other portion, or the prescribed application thereof, shall be
44
severable, and the remaining provisions of this Ordinance, and all applications thereof not having
been declared void, unconstitutional or invalid, shall remain in full force and effect. The City
declares that no invalid or prescribed provision or application was an inducement to the
enactment of this Ordinance, and that it would have enacted this Ordinance regardless of the
invalid or prescribed provision or application.
Section 24. Effective Date.
This Ordinance shall take effect and be in force immediately upon its passage and
adoption on second reading.
The foregoing Ordinance was offered by Vice Mayor Patricia Rogers-Libert, who moved
its adoption on first reading. The motion was seconded by Councilmember Cohen and upon
being put to a vote, the vote was as follows:
Councilmember Arthur Berger yes
Councilmember Jay R. Beskin yes
Councilmember Ken Cohen yes
Councilmember Harry Holzberg yes
Councilmember Jeffery Perlow yes
Vice Mayor Patricia Rogers-Libert yes
Mayor Arthur I. Snyder yes
The foregoing Ordinance was offered by Vice Mayor Rogers-Libert, who moved its
adoption on second reading. The motion was seconded by Councilmember Perlow, and upon
being put to a vote, the vote was as follows:
Councilmember Arthur Berger absent
Councilmember Jay R. Beskin yes
Councilmember Ken Cohen yes
Councilmember Harry Holzberg yes
Councilmember Jeffery Perlow yes
Vice Mayor Patricia Rogers-Libert yes
Mayor Arthur I. Snyder yes
PASSED AND ADOPTED on first reading this 20th day of August, 1996.
PASSED AND ADOPTED on second reading this 4~ day of S~el~ember~19
ATTEST:
CITY CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY: ~
CITY ATTORNEY
CITY OF AVENTURA, FLORIDA
APPLICATION FOR CABLE TELEVISION FRANCHISE
EXHIBIT A
In order to be considered for the award of a cable television franchise by the City of
Aventura, Florida any person, corporation, parmership or other such entity desiring such a
fi'anchise must submit an application to the City of Aventura. The application should be
submitted to the office of the City Manager, City of Aventura, 2999 N.E. t91st Street, Suite 500,
Aventura, Florida 33180. To be considered, the application must include an original and five
copies plus a non-refundable filing fee of Seven Thousand Five Hundred Dollars ($7,500). The
application is to be completed and signed under oath by an officer of the applicant if the
applicant is a corporation, a partner if the applicant is a general partnership, general partner if the
applicant is a limited partnership, a trustee if the applicant is a trust, or by the applicant himself if
the applicant is an individual.
At a minimum, an application must provide the information listed below in order to be
considered. The City reserves the right to request any and all additional information that it
deems reasonably required to reach a determination as to whether the grant of a franchise to
applicant is in the public interest.
1. Name and address of the applicant and identification ownership and control of the
applicant, including: the names and addresses of all persons with five (5%) percent or more
ownership interest in the applicant, including the names and addresses of parents or subsidiaries
holding such ownership interests directly or indirectly; the persons who control the applicant; all
officers and directors of the applicant; and any other cable system ownership or other
communications ownership interest of each named person;
2. An indication of whether the applicant, or any person controlling the applicant, or
any officer, or director or person with five (5%) percent or more ownership interest in the
applicant, has been adjudged bankrupt, had a cable franchise or license revoked, or been found
by any court or administrative agency to have violated a security or antitrust law, or to have
committed a felony, or any crime involving moral turpitude; and, if so, identification of any such
person and a full explanation of the circumstances;
3. A demonstration of the applicant's technical, legal and financial ability to
construct and/or operate the proposed cable system, including identification of key personnel;
4. Copies of all federal, state, county and city licenses, permits and registrations in
regard to any part of the applicant's facilities located in the City.
5. A statement prepared by a certified public accountant or duly authorized financial
officer of the applicant regarding the applicant's financial ability to complete the construction
and operation of the cable system proposed;
6. A description of the applicant's experience in cable system ownership,
construction and operation, and identification of communities in which the applicant or any
person controlling the applicant or having more than a ten (10%) percent ownership interest in
applicant has, or has had, a cable franchise or license or any interest therein. Copies of all such
franchise agreements that any such party have entered into within the most recent 24 months;
7. A description of any and all pending federal and state litigation, whether judicial
or administrative, that in any manner relates to the operation of a cable television system or the
provision of cable television service to which the applicant is currently a party.
8. Identification of the area of the City to be served by the proposed cable system,
including a description of the service area's boundaries, and if applicable, a description of
varying levels of capacity and services offered within different areas of the City.
9. A description of the physical facilities proposed, including channel capacity,
performance characteristics, headend, and access facilities; upon request, the applicant shall
make information on technical design available for inspection;
10. Where applicable, a description of the construction of the proposed system,
including an estimate of plant mileage and its location, the proposed construction schedule, a
description, where appropriate, of how services will be converted from existing facilities to new
facilities, and information on the availability of space in conduits including, where appropriate,
an estimate of the cost of any necessary rearrangement of existing facilities;
11. If applicant is currently operating a cable system within the City, a description of
the existing system and capacity and the operator's plans to upgrade the system.
12. For informational purposes, the proposed rate structure, for residential,
commercial and bulk customers, including current projected charges for the next 12 months for
each service tier, installation, converters, and other equipment or services, and the applicant's
ownership interest in any proposed program services to be delivered over the cable system;
13. A schedule and description of applicant's contracts with any and all residential
and or commemial complexes including but not limited to condominiums, homeowner
associations and apartment buildings.
14. A demonstration of how the applicant's proposal will reasonably meet the future
cable-related needs and interests of the community, including a description of how the proposal
will meet the needs described in any recent community needs assessment conducted by or for the
applicant or the City;
15. A description of any non-cable telecommunications services offered by the
applicant or its parent, affiliate or subsidiary and applicant's plans with respect to the availability
of such services to subscribers in the City.
16. Pro forma financial projections for the first five (5) years of the franchise term,
including a statement of projected income, sources of revenue and of projected fee payments to
the City, and a schedule of planned capital additions, with all significant assumptions explained
in notes or supporting schedules;
17. If an applicant proposes to provide cable service to an area already served by an
existing cable operator, the identification of the area where the overbuild would occur, the
potential subscriber density in the area which would encompass the overbuild, and the ability of
the Streets to accommodate an additional system;
18. Any other information as may be reasonably necessary to demonstrate compliance
with the requirements of this Ordinance and information that the City may request of the
applicant that is relevant to the City's consideration of the application; and
19. An affidavit or declaration of the applicant or authorized officer certifying the
truth and accuracy of the information in the application, acknowledging the enforceability of
application commitments, and certifying that the proposal meets all federal, state and local law
requirements.
APPLICANT CERTIFICATION:
Applicant has read Ordinance No. 96-15 of the City of Aventura and accepts all terms
and conditions therein.
CITY OF AVENTURA, FLORIDA
INTERIM ORDINANCE
TABLE OF CONTENTS
Section Page
Section 1. Short Title ................................................................................................................ 2
Section 2. Creation of Ordinance No. 96-15 ............................................................................. 2
Section 3. Definitions ............................................................................................................... 2
Section 4. Intent and Purposes ................................................................................................ 10
Section 5. Grant of authority; franchise required .................................................................... 11
Section 6. Franchise characteristics ....................................................................................... 13
Section 7. Subiect to other laws, police power ....................................................................... 14
Section 8. Applications for grant of franchise ...................................................................... 15
Section 9. Grant of franchise .................................................................................................. 16
Section 10. Franchise fee ......................................................................................................... 19
Section 11. Customer service requirements .............................................................................. 21
Section 12. Use of Streets ........................................................................................................ 36
.Section 13. Insurance; Indemnification; Security Fund ............................................................ 39
Section 14. Rates ...................................................................................................................... 40
Section 15. Administration ...................................................................................................... 41
.Section 16. Force Majeure ...................................................................................................... 41
Section 17. A~licability ......................................................................................................... 42
Section 18. Violations of Ordinance ........................................................................................ 42
Section 19. Municipal cable system ownership authorized ...... 43
Section 20. Reservation of rights ............................................................................................. 43
Section 21. Repeal of Conflictin~ Ordinances ........................................................................ 44
Section 22. Savings ................................................................................................................... 44
Section 23. Severability .......................................................................................................... 44
Section 24. Effective Date ...................................................................................................... 45