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ORDINANCE NO. 94-9-1
AN ORDINANCE OF THE CITY OF COOPER CITY,
FLORIDA, ADOPTING A RENEWAL FRANCHISE
AGREEMENT WITH JONES INTERCABLE, INC.;
PROVIDING FOR SEVERABILITY, PROVIDING FOR A
REPEALER, AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City Council of the City of Cooper City hereto desires to
adopt a Renewal Franchise Agreement with Jones Intercable, Inc., a copy of
which is attached hereto as Exhibit "A", and made a part hereof; and,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
COOPER CITY, FLORIDA:
Section 1: That the City Council does hereby approve a Renewal
Franchise Agreement between the City of Cooper City and Jones Intercable, Inc.,
a copy of which is attached hereto as Exhibit "A", and made a part hereof.
Section 2: Should any section or provision of this Ordinance, or any
portion thereof, or any paragraph sentence or word by declared by a Court of
competent jurisdiction to be invalid, such decision shall not affect the
validity of the remainder hereof.
Section 3: All sections or parts of sections of the Code of Municipal
Ordinances, all 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of resolutions in conflict herewith, be and the same, are hereby repealed to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 conflicts.
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ORDINANCE NO. 94-9-1
PAGE 2
SECTION 4: This Ordinance shall be in force and take full effect
immediately upon its passage and final adoption.
PASSED AND ADOPTED ON FIRST READING THIS 23RD DAY OF AUGUST, A.D.,
1994.
PASSED AND FINAL ADOPTION ON SECOND READING THIS 12TH DAY OF SEPTEMBER
A.D., 1994.
/s/ SUELLEN H. FARDELMANN
SUELLEN H. FARDELMANN
Mayor
ATTEST:
/s/ SUSAN BERNARD
SUSAN BERNARD
City Clerk
Approved As To Form:
/s/ ALAN F. RUF
ALAN F. RUF
City Attorney
ROLL CALL
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Mayor Fardelmann aye
---
Councilmember Palank aye
---
Councilmember Brown aye
---
Councilmember Litsch aye
---
Councilmember Warsch aye
---
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CABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN THE CITY OF COOPER CITY, FLORIDA
AND CABLE TV FUND 14-A/B VENTURE
WHEREAS, Cable TV Fund 14-A/B Venture, a Colorado joint venture doing
business as Jones Intercable, Inc. ("Jones"), has asked the City of Cooper
City, Florida (the "City"), to renew the franchise ("Prior Franchise") which
Jones holds to provide cable television service to the City; and
WHEREAS, the City has reviewed Jones' performance under the Prior
Franchise and, after careful consideration, analysis and deliberation, has
determined the technical ability, financial condition, legal qualifications and
past performance of Jones are adequate; and
WHEREAS, the City Council of the City has determined that, subject to
the terms and conditions set forth herein, the grant of a new, non-exclusive
franchise to Jones, to supersede the Prior Franchise, is consistent with the
public interest; and
WHEREAS, the City and Jones have reached agreement on the terms and
conditions of the new franchise, as set forth herein;
NOW, THEREFORE, in consideration of the City's grant of a new
franchise to Jones, the terms and conditions set forth herein, and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties do hereby agree as follows:
1. Definitions. In addition to the definitions elsewhere in this
Agreement, the following words and terms shall have the meanings ascribed to
them:
a. "Affiliate" means, as to the Franchisee, any entity
which controls, is controlled by, or is under common control with the
Franchisee.
b. "Agreement" means this agreement and any amendments,
exhibits or appendices hereto.
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c. "Basic Cable Service" means the service tier offered
over the Cable System which includes the retransmission of local television
broadcast signals, and public, educational or governmental channels.
d. "Cable Act" means the Cable Communications Policy Act
of 1984, 47 U.S.C. Sections 521 et seq., and the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, as
those Acts may hereinafter be amended.
e. "Cable Ordinance" means Ordinance No. __, known as
the City of Cooper City, Florida Cable Communications Ordinance, as it may
hereinafter be amended or superseded.
f. "Cable Service" means (i) the one-way transmission to
Subscribers of video programming or other programming services, any Subscriber
interaction that is required for the selection of such video programming or
other programming services, and (ii) the provision of any other lawful
communications services.
g. "Cable System" means a facility, operating by means
of coaxial cable, optical fiber, or other transmission lines or forms of
transmission and associated signal generation, reception and control equipment,
that is designed to provide Cable Service to multiple Subscribers within the
City.
h. "City" means the City of Cooper City, a municipal
corporation of the State of Florida, in its present incorporated form or in any
later recognized, consolidated, enlarged or reincorporated form.
i. "Franchisee" means Cable TV Fund 14-A/B Venture, a
Colorado joint venture, and its lawful and permitted successors, assigns, and
transferees.
j. "Gross Subscriber Receipts" means all receipts
collected by the Franchisee, its affiliates and subsidiaries, from Subscribers
in the City for
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Cable Service, including but not limited to receipts from Subscribers in the
City derived from subscriber rates, bulk billing rates, menu-driven service,
pay-per-view events or channels, premium channels, service tiers, service
clusters, multiplexing any channel or programming service, installations,
downgrades, reconnections, late charges and collection charges; provided,
however, that Gross Subscriber Receipts shall not include (i) franchise fees
collected from Subscribers, and (ii) any taxes on services furnished by the
Franchisee imposed directly upon any Subscriber by federal, state, local or
other governmental unit and collected by the Franchisee on behalf of said
governmental unit.
k. "Prior Franchise Agreement" means Ordinance No.
79-7-3, adopted on July 10, 1979, as amended by Ordinance Nos. 83-10-3 and
83-10-4, adopted on October 11, 1983, and Resolution No. 88-1-19, adopted
January 22, 1988.
1. "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, thorough-fare, 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.
m. "Subscriber" means any person who lawfully receives
Cable Service delivered over the Franchisee's Cable System.
2. Grant of Authority: Limits and Reservations.
a. Grant. Subject to the terms and conditions of this
Agreement, the City hereby grants to the Franchisee a franchise (the
"Franchise") to
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construct, maintain and operate a Cable System under, on and over the Streets
and other public rights-of-way within the City. The Franchise shall further
include the right, privilege, easement and authority to construct, erect,
suspend, install, lay, renew, repair, maintain and operate such poles, wires,
cables, underground conduits, manholes, ducts, trenches, fixtures, appliances
and appurtenances for the purpose of distribution of Cable Service to
inhabitants within the jurisdictional limits of the City. Without limiting the
generality of the foregoing, the Franchise shall and does hereby include the
right to repair, replace, enlarge and extend the Cable System.
b. Grant Not Exclusive. The Franchise and the rights it
grants to use and occupy the Streets of the City shall not be exclusive and do
not explicitly or implicitly preclude the issuance of other franchises to
operate Cable Systems within the City, or affect the City's right to authorize
the use of the Streets by other persons for other purposes as it determines
appropriate. Notwithstanding the foregoing, the City agrees that it shall not
authorize another franchisee to utilize the Streets to provide Cable Services
on terms and conditions which are more favorable or less burdensome than those
applied to the Franchisee.
c. Term. The Franchise and this Agreement shall be
effective upon approval by the City Council and shall expire on the 15th
anniversary of such date, unless the Franchise is earlier revoked as provided
in this Agreement. The Franchise may be renewed for successive periods of 15
years on the same terms and conditions set forth in this Agreement, or on such
different terms and conditions as the parties may agree, consistent with the
renewal provisions of the Cable Act.
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d. Agreement Subject to Exercise of Police Powers. All
rights and privileges granted in this Agreement are subject to the police
powers of the City.
e. Agreement Subject to Other Laws. This Agreement is
subject to and shall be governed by all terms, conditions and provisions of the
Cable Act and any other applicable provisions of supervening federal or state
law.
f. Agreement Terms Prevail. Notwithstanding the
provisions of subsection A of Section 29.07.1 of the Cable Ordinance, the City
and the Franchisee agree that the express terms and provisions of this
Agreement will prevail over conflicting or inconsistent terms and provisions in
the Cable Ordinance. The parties further agree that the terms and provisions of
this Agreement may not be modified or amended except by a written instrument
signed by both parties. Subject to the foregoing, the Franchisee acknowledges
that the Franchise is granted by the City pursuant to and in accordance with
the Cable Ordinance.
g. Claims Related to Prior Franchise Agreement. Except
for the payment of all franchise fees owed under the Prior Franchise Agreement,
as of the effective date of this Agreement, the Prior Franchise Agreement is
superseded and is of no further force and effect, and the City and the
Franchisee mutually release each other from any claims each had, has or may
have against the other under the Prior Franchise Agreement.
3. The Cable System: Provision of Cable Services.
a. The Cable System shall at all times have a minimum
capacity of at least 54 video channels.
b. The Franchisee shall have the right, so far as
allowed by law, to audit its feeder lines and connection lines to prevent
improper usage of the Cable System.
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c. The Franchisee shall provide Cable Service to any
occupant of a residential or commercial structure who requests Cable Service,
including all multiple dwelling unit buildings (except those structures and
multiple dwelling unit buildings to which the Franchisee cannot obtain access),
provided that such structure can be served with a standard cable drop of no
more than 150 feet. If an occupant of a structure who requests Cable Service
cannot be served with a standard cable drop, the Franchisee shall extend the
distribution plant of its Cable System as necessary to provide such Cable
Service. The Franchisee shall bear all costs of any such extension, provided
there is a density in the area to be reached by the extension of at least 40
structures per linear mile of cable plant.
d. The Franchisee shall provide one free service outlet
and Basic Cable Service to all public schools and City buildings that can be
served with a standard 150 foot cable drop from the existing Cable System.
Franchisee shall provide additional service outlets and Cable Service upon the
City's request at the Franchisee's then standard rates.
e. The Franchisee shall cablecast all regularly
scheduled, public City Council meetings live to all Subscribers. In addition,
the Franchisee shall cablecast, at the City's request, up to four other City
meetings or events per year.
f. The Franchisee shall provide leased access channels
on the Cable System as required by federal law.
g. The Franchisee shall continuously monitor
developments in cable technology and how other cable companies in Broward
County, Florida, have incorporated or are planning to incorporate such
developments into their Cable Systems. At the City's request (but not more
often than three times during the term of this Agreement), the Franchisee shall
prepare and deliver a report describing developments in cable technology and
whether the Franchisee plans to incorporate any such developments into its
Cable System. Based on this report,
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the City may determine that the Cable System or this Agreement should be
updated, changed, revised, or that additional services should be provided, but
only if such update, change, revision or provision of additional services is
economically feasible. Economic feasibility shall be determined by the City and
the Franchisee in good faith following an evaluation of the Franchisee's
financial condition, economic waste, if any, that would occur should the
changes be made, the remaining term of this Agreement, and the rate of return
on the Franchisee's investment in the City.
4. Maintenance of Cable System; Safety Requirements.
a. The Franchisee shall at all times employ reasonable
care in conducting its operations and shall install and use generally accepted
methods and devices for preventing failure and accidents which are likely to
cause damage, injuries, or nuisances to the public. The Franchisee shall
install and maintain its Cable System and other equipment in accordance with
the applicable requirements of the National Electrical Safety Code and local
ordinances. The Franchisee may mark the Cable System as necessary to apprise or
warn persons using the Streets of the City of the existence of the Cable
System, provided that such marks shall be located so as to cause minimum
interference with the rights and reasonable convenience of property owners who
adjoin any of said streets.
b. The Franchisee shall have the right to remove, trim,
cut and keep clear of the Cable System the trees in and along the Streets of
the City, subject to the limitations and conditions of City Code Section
26-18(d), as it may be amended from time to time, and provided that in the
exercise of such right, the Franchisee shall not remove, trim, cut or otherwise
injure such trees to any greater extent than is necessary for the installation,
maintenance and use of the Cable System.
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c. The Franchisee shall install and maintain the Cable
System so as not to interfere with the equipment of any utility of the City or
any other entity lawfully and rightfully using the Streets of the City.
Whenever the City shall require the relocation or reinstallation of the Cable
System in conjunction with an improvement program for the Streets of the City,
it shall be the obligation of the Franchisee, upon 60 days' written notice of
such requirement, to remove and relocate immediately the Cable System as may be
reasonably necessary to meet the requirements of such improvement program. Such
removal and relocation by the Franchisee shall be at the sole cost of the
Franchisee.
d. The Franchisee shall at all times during the term of
this Franchise Agreement adopt and adhere to a maintenance program designed to
minimize the possibility of a material degradation of the Cable System and the
quality of the Cable Services offered to Subscribers.
6. Franchise Fee.
a. Each year during the Franchise term, as compensation
for use of the Streets, the Franchisee shall pay to the City, on a quarterly
basis, a franchise fee in an amount not less than, nor more than, three percent
of the sum of (i) the Franchisee's Gross Subscriber Receipts for such quarter
and (ii) an allocated portion of the advertising revenues received by the
Franchisee from the operation of its Cable System during such quarter. The
allocated portion of the Franchisee's advertising revenues shall be determined
by taking the gross advertising revenues received by the Franchisee during the
quarter from the operation of its Cable System and multiplying this amount by a
fraction, the numerator of which is the number of basic subscribers to the
Franchisee's Cable System at the end of the quarter that reside within the
jurisdictional limits of the City, and the denominator of which is the total
number of basic subscribers served by the Franchisee's Cable System at the end
of the quarter. Notwithstanding the
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foregoing, the City may, in its sole discretion, at any time during the term of
this Agreement, give the Franchisee written notice that the rate used to
calculate the franchise fee shall increase up to the maximum rate permitted
under federal law, and such new rate shall be effective 120 days following the
Franchisee's receipt of such notice. Payment for each quarter shall be made to
the City not later than 45 days after the end of each quarter and shall be
accompanied by a statement that details by category (e.g., receipts from basic
services, premium services, installations, etc.) the Gross Subscriber Receipts
and allocable advertising revenues for the quarter, and which is certified as
to its correctness by the Franchisee's chief financial officer or other duly
authorized financial officer.
b. The Franchisee shall file with the City, within 90
days after the end of each calendar year, an audited financial statement
showing the Gross Subscriber Receipts used to calculate the franchise fee for
the preceding year. The financial information provided pursuant to this Section
6 shall be in addition to any information or reports that the City may request
of the Franchisee under the Cable Ordinance.
7. Insurance Requirements; Bond; Indemnification.
a. The Franchisee shall maintain throughout the term of
the Franchise and this Agreement the following liability insurance coverage
insuring the City and the Franchisee: worker's compensation and employer
liability insurance to meet all requirements of Florida law, and general
comprehensive liability insurance with respect to the construction, operation
and maintenance of the Cable System and the conduct of the Franchisee's
business in the City, in the minimum amounts of:
1. $250,000 for property damage in any one
accident;
2. $500,000 for personal bodily injury to any
one person;
and
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3. $1,500,000 for personal bodily injury in any
one accident.
b. All insurance policies shall be with sureties
qualified to do business in the State of Florida; and shall be with sureties
with a minimum rating of A-1 in Best's Key Rating Guide, Property/Casualty
Edition. The City may require coverage and amounts in excess of the above
minimums where reasonably necessary to reflect changing liability exposure and
limits or where required by law.
c. The Franchisee shall keep on file with the City
certificates of insurance and, upon reasonable notice and request, shall make
all insurance policies available for City inspection.
d. All insurance policies shall name the City as an
additional insured and shall further provide that any cancellation or reduction
in coverage shall not be effective unless 30 days prior written notice thereof
has been given to the City. The Franchisee shall not cancel any required
insurance policy without submission of proof that the Franchisee has obtained
alternative insurance satisfactory to the City which complies with this
Section.
e. Within 30 days of the effective date of the
Franchise, the Franchisee shall file with the City a performance bond running
to the City, with good and sufficient surety approved by the City, in the sum
of $10,000 conditioned upon the faithful performance and discharge of the
obligations imposed by this Agreement. The bond shall provide for 30 days'
prior written notice to the City of any intention on the part of the Franchisee
to cancel, fail to renew or otherwise materially alter its terms. Neither the
filing of a bond with the City, nor receipt of any damages recovered by the
City thereunder, shall be construed to excuse the faithful performance by the
Franchisee of its obligations
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under this Agreement or limit the liability of the Franchisee for damages under
the terms of this Agreement.
e. The Franchisee shall, at its sole cost and expense,
indemnify, hold harmless, and defend the City, its officials, boards,
commissions, commissioners, agents, and employees, against any and all claims,
suits, causes of action, proceedings, judgments for damages or equitable
relief, and costs and expenses arising out of the construction, maintenance or
operation of the Cable System, the conduct of the Franchisee's business in the
City, or in any way arising out of the Franchisee's enjoyment or exercise of
the Franchise, regardless of whether the act or omission complained of is
authorized, allowed or prohibited by this Agreement; provided, however, that
the Franchisee's obligation hereunder shall not extend to any claims caused by
intentional misconduct or negligence of the City, its officials, commissioners,
agents or employees. This provision includes, but is not limited to, the City's
reasonable attorneys' fees incurred in defending against any such claim, suit
or proceedings; claims arising out of copyright infringements or a failure by
the Franchisee to secure consents from the owners, authorized distributors, or
the franchisees of programs to be delivered by the Cable System; claims arising
out of Section 638 of the Cable Act; and claims against the Franchisee for
invasion of the right of privacy, defamation of any person, firm or
corporation, or the violation or infringement of any trade mark, trade name,
service mark or patent, or of any other right of any person, firm or
corporation.
8. Assignment or Transfer of the Franchise. The Franchisee may
not assign or transfer the Franchise without the prior written consent of the
City, which consent shall not be unreasonably withheld. The Franchisee shall
comply with the provisions of applicable federal, state and local law when
requesting the City's consent to the assignment or transfer of the Franchise.
Notwithstanding the
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foregoing, the City's consent shall not be necessary (i) for the assignment or
transfer of the Franchise by the Franchisee to any Affiliate, or (ii) for the
granting of a security interest in, or the mortgage or pledge of, all of the
Franchise's rights, powers and privileges under the Franchise to such lending
institution or institutions as may be designated by the Franchisee. In
addition, any change in the ownership of the Franchisee that does not result in
a change in voting control or of actual working control of the Franchisee shall
not be considered an assignment or transfer of the Franchise.
9. Revocation or Termination of the Franchise.
a. The Franchise may be revoked by the City, in
accordance with the provisions of this Section 9, if the Franchisee fails to
operate or maintain the Cable System as required by this Agreement, or violates
any other material provision of this Agreement. In such event, the City shall
give the Franchisee written notice that the Franchisee is in material violation
of this Agreement, which notice describes the nature of the alleged violation
or breach. If, within 90 days following receipt of such written notice from the
City, the Franchisee has not cured such violation or breach, or has not
commenced corrective action and such corrective action is not being actively
and expeditiously pursued, the City may give written notice to the Franchisee
of its intent to revoke the Franchise, stating its reasons.
b. Prior to revoking the Franchise under subsection a
hereof, the City Council shall hold a public hearing, upon 30 days notice to
the Franchisee, at which time the Franchisee and the public shall be given an
opportunity to be heard. Following the public hearing, the City Council shall
determine whether to revoke the Franchise based on the evidence presented at
the hearing, and other evidence of record. If the City Council determines to
revoke the Franchise, it
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shall issue a written decision setting forth the reasons for its decision, a
copy of which shall be delivered to the Franchisee.
c. Notwithstanding subsection a and b hereof, the City
Council may, following a public hearing, revoke the Franchise effective 120
days after an assignment for the benefit of creditors or the appointment of a
receiver or trustee to take over the business of the Franchise, whether in a
receivership, reorganization, bankruptcy, assignment for the benefit of
creditors, or other action or proceeding, unless within that 120-day period:
1. Such assignment, receivership or trusteeship
has been vacated; or
2. Such assignee, receiver or trustee has fully
complied with the terms and conditions of this Agreement and has executed an
agreement, approved by a court having jurisdiction, assuming and agreeing to be
bound by the terms and conditions of this Agreement.
d. In the event of foreclosure or other judicial sale of
the Cable System, the City may revoke the Franchise, following a public hearing
before the City Council, by serving notice upon the Franchisee and the
successful bidder at the sale, in which event the Franchise and all rights and
privileges of the Franchise shall be revoked and will terminate 30 days after
serving such notice, unless:
1. The City has approved the transfer of the
Franchise to the successful bidder; and
2. The successful bidder has agreed with the
City to assume and be bound by the terms and conditions of this Agreement.
e. If the City revokes the Franchise, or if for any
other reason the Franchisee abandons the Cable System, the following procedures
and rights shall apply:
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1. The City may require the Franchisee to remove
its Cable System from the Streets. If the Franchisee fails to do so within a
reasonable period of time, the City may have the Cable System removed from the
Streets at the Franchisee's expense.
2. The City, by resolution of the City Council,
may acquire ownership, or effect a transfer, of the Cable System at the fair
market value of the Cable System, which shall be paid to the Franchisee, net of
transfer expenses.
10. Inter-local Emergency Plan. The Franchisee shall cooperate
with the City in the development of an inter-local plan, which may include all
local governmental entities within Broward County, which plan is designed to
alert Subscribers in the event of an impending natural or man-made emergency
and to provide for standby power for the Cable System. In order to implement
the interlocal plan, the Cable System shall be designed so as to permit an
override of the audio portion of all channels, by touch-tone phone (or
functional equivalent), from any location by the government officials
designated in the plan, and pursuant to the provisions of such plan.
11. Notices; Other Provisions.
a. Every notice served upon the City shall be delivered
or sent by mail to:
City of Cooper City
City Hall
9090 S.W. 50th Place
Cooper City, FL 33328-4298
Attn: City Clerk
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With a copy to:
Alan Francis Ruf, Esq.
City Attorney
2455 E. Sunrise Boulevard
International Building, PH-E
Fort Lauderdale, FL 33304
Every notice served upon the Franchisee shall be delivered or sent by mail to:
Jones Intercable, Inc.
6565 Nova Drive
Davie, FL 33317
Attn: General Manager
With a copy to:
Jones Intercable, Inc.
9697 East Mineral Avenue
P.O. Box 3309
Englewood, Colorado 80155
Attn: Legal Department
b. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and permitted assigns.
c. If the City or the Franchisee institutes legal proceedings to
enforce the terms and conditions of this Agreement, the prevailing party shall
be permitted to recover from the adverse party all reasonable attorneys' fees
and costs incurred in such proceedings.
d. If any section, subsection, sentence, clause, or phrase or
portion of this Agreement is for any reason held invalid or unconstitutional by
any court of competent jurisdiction, such portion shall be deemed a separate,
distinct and independent provision, and such holding shall not affect the
validity of the remaining portions hereof.
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AGREED TO THIS 12th DAY OF SEPTEMBER, 1994.
CITY OF COOPER CITY
By: /s/ SUELLEN H. FARDELMANN
Mayor
ATTEST:
/s/ SUSAN BERNARD
City Clerk
APPROVED AS TO FORM:
/s/ ALAN F. RUF
City Attorney
CABLE TV FUND 14-A/B VENTURE,
a Colorado joint venture
By: Cable TV Fund 14-A, Ltd.,
as a Venturer
By: Cable TV Fund 14-B, Ltd.,
as a Venturer
By: Jones Intercable, Inc.
as their General Partner
By: /s/ RUTH E. WARREN
Name: Ruth E. Warren
Title: Group Vice President/Operations
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