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HomeMy WebLinkAboutO-616ORDINANCE NO. b/G AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO FAIRHOPE CABLE TV, INC. ITS SUCCESSORS AND ASSIGNS, THEREBY GRANT- ING THE RIGHT TO ERECT, OPERATE AND MAINTAIN IN, UNDER, OVER, ALONG, ACRO�;S, AND UPON THE STREETS, LANES, AVENUES, SIDE- WALKS, ALLEYS, BRIDGES, AND HIGHWAYS AND OTHER PUBLIC PLACES IN THR CITY OF FAIRHOPE , AND SUBSEQUENT ADDITIONS THERETO, A CABLE TELEVISION SYSTEM FOR T JE PURPOSES OF TRANSMISSION AND DISTRIBUTION BY CABLE OF c; TELEVISION SIGNALS TO ENABLE SALE OF ITS COMMUNITY ANTENNA 'I'E'LEVISION SERVICE TO THE INHABITANTS OF THE CITY OF FAIRHOPPEE� 6 AND OTHER PURPOSES, FOR A PERIOD OF TI-IIRTY (30) YEARS, AND REGULATING THE SAME; SETTING FORTH OTHER CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE; AND PROVIDING, PENALTIES FOR VIOLATION OF THE FRANCHISE PRO- 11 iSIONS. Be It Ordained By The City Council of the City of Fairhope, Alabama as follows: Section 1., Short Title. This ordinance shall be known and may be cited as the " Fairhope - Community Antenna Television Ordinance of 19 78 ," Section 2. Grant of Authority. In consideration of the faithful performance and observance of the conditions and reservations hereinafter specified, the right is hereby granted tr) Fairhope Cable TV, Inc. , a corporation organized under i ne laws of the State of Alabama its successors and -1- assigns, and hereinafter referred to as "the company" or "the grantee", the right to erect, maintain, and operate television and radio transmission and distribution facilities and additions hereto, in, under, over, along, across, and upon the streets, lanes, avenues, sidewalks, alleys, bridges and other public places in the City of Fairhope and subse- q,ient additions thereto, for the purpose of transmission and distribution of audio and visual. impulses and television energy in accordance with the laws and regulations of the United States of America and the State of Alabama , a, -id the ordinances and regulations of the City of Fairhope for a period of thirty (30) years, unless terminated earlier. The company shall,;�� at all times during the life of this franchise, be subject to all lawful exercist of the police power by the City and to such reasonable regulation not incon- s:i.stent with this franchise as the city may by .resolution or ordinance provide. Section .3. Definitions. For the purposes of this ordinance, the following terms, phrases, words and their derivations shall have the meaning given herein.. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include; the plural number. The word "shall" is al ways mandatory and not merely directory. (a) "City" is the City of Fairhope (b) "Governing Body" is the governing body of the city of _Fairhope (c) "Community Antenna Television System" hereinafter referred to a.s "CATV" or "CATV system" means a system of coaxial cables or other electrical conductors and equipment used or to be used primarily to receive television or radio signals directly or indirectly off -the -air or to originate <levision or radio signals and programming and transmit them to sub- scribers for a fee. -2- O (d) "Person" is any person, firm, partnership, association, cor- poration, cornpany or organization of any kind. (e) "Grantee" is Fairhope Cable TV, Inc, a corporation citizen of the State of Alabama (f) "Company" is used interchangeably with "Grantee". (g) "Gross Subscriber Revenues" are the gross revenues of grantee, including all forms of consideration and any initial lump sum payments, derived Irorn sales of Wevision and radio signals to its customers within the City. Section 4. Grant of Non -Exclusive Revocable Authority. The ri.ghc to use and occupy said streets, alleys, public ways and � places for the; purposes herein set forth shall not be exclusive, and the city reserves the right to grant a similar use of said streets, alleys, public ways and places, to any person at any time. This franchise shall not be construed to create any right beyond the terms, conditions and periods of the franchise. Section S. Liability and Indemnification. (a) The grantee shall pay and by its acceptance of this franchise agrees that it will pay all damages and penalties which the city maylegally be required. to p;-:iy as a result of granting this franchise. These damages or penalties shall include, but shall not be limited to, damages arising our, of the installation, operation, or maintenance of the CATV system authorized herein, whether or not any act or omission complained of is authorized, al..owed, or prohibited by this franchise. (b) The grantee shall pay and by its acceptance of this franchise a.g-rees that it will pay all expenses incurred by the city in defending itself with regard. to all damages and penalties mentioned in subsection (a) above. I -ese expenses shall include all out-of-pocket expenses, such .as attorney s, and shall also include the reasonable value of any services rendered t;ie city avcoriiey or his assistants or any employees of the city. ,c' Tre grantee shall maintain, and by its acceptance of thi.:, it w,il maintain throughout the term of this franchise insurance i.nsur:ng the city and the grantee with regard to all damages m3ntioned in subsection (a) above in the minimum amounts of: 1. One Hundred Fifty Thousand Dollars ($150, 000.00) for injury to one person in one occurrence. 2. 'Three Hundred Thousand Dollars ($300, 000.00) for in- jury to two (2) or more persons in the same occurrence. 3. Qne Hundred Thousand Dollars ($100, 000.00) for pro- perty damage in one occurrence. (d) The grantee shall maintain, and by its acceptance of this franchise specifically, agrees that it will maintain throughout the term of tilis franchisE_-'., a. feasible performance bond running to the city, with surety approved by the ci~y, in the penal sum of Twenty -Five Thousand Dollars ($25, 000.00) con- di,:ioned that the grantee shall well and truly observe, fulfill, and perform each term and condition of this franchise and that in case of any breach of condition of the bond, the amount thereof shall be recoverable from the principal and sureties thereof by the city for all damages proximately re- sulting from the failure of the grantee to well and faithfully observe and per- form any provision of this franchise. (e) The insurance policy and bond obtained by the grantee in com- pl:ance with this section must be approved by the governing body, and such insurance policy and bond, along with written evidence of payment of required premiums, shall be filed and maintained with the Clerk of the city_ of _ Fairhope during the term of this franchise. Section 6. Color TV. The fa.cil ities used by the grantee shall be capable of distributing color signals, and when the signals the grantee distributes are received color they shall be distributed in color where technically feasible. Section 7. Signal Quality Requirements. The grantee shall: (a) Produce a picture, whether in black and white or in color, that is undistorted, free from ghost images, and accompanied with proper sound on typical standard production TV sets in good repair; (b) Transmit signals of adequate strength to produce good pictures with good sound at all outlets without causing cross -modulation in the cables or interfering, with other electrical systems; (c) Limit failures tg a M- iniI urn by lgcating and 6grr@ctlllg mal - functions promptly; (d) Demonstrate by instruments and otherwise to subscribers that a signal of adequate strength and quality is being delivered. Section E. Operation and Maintenance of System. (a.) The ;grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time practicable. Such interruptions insofar as practicable shall be preceded by notice and shall occur during periods of minimum use of the system. The company hereby expressly warrants that no interference to off -the -air reception by any per- son, whether subscriber or non -subscriber, will be caused by its operation. In addition, the company hereby expressly warrants that the signals of all local television stations will be carried on the cable without receiving any interference, including interference from signals of other broadcast stations. Whenever a legitimate complaint of interference is made to the company, the company hereby expressly warrants that it will promptly take all steps necessary to eliminate the interference. (b) Service Area. The grantee shall begin cable service within one and one-half. (1- 1 /2) years after the grant of this franchise and the FCC Certificate of Co.npliance is received as approved. Section 9. Carriage of Signals. The grange shall receive and distribute television and radio signal:. -5- which are disseminated to the general public without charge by broadcasting stations licensed by the Federal Communications Commission. All FCC regulations shall be complied with regarding the carriage of the programming of any existing or future television broadcasting station which covers the city of Fairhope in its principal broadcasting area.. Section 10. Program Alteration. 0- All programs of broadcasting systems carried by the grantee shall be carried in their entirety as received, and at the time received, with announcements and advertisements, and without additions, except as may be allowed to be altered as to content or delivery by FCC regulations. c> Section 11. Service To Schools. The grantee shall provide service to public school locations and teaching stations within the city for educational purposes upon request by the city and at no cost to it or to the public school system. The grantee may at its election provide similar services without cost to private schools, in- cluding parochial or other religious schools. Section 1.2. Emergency Use Of Facilities. In the cage of any emergency or disaster, the grantee shall, upon request of the governing body, make available its facilities to the city for emergency use during the emergency or disaster period. Section 13. Other Business Activities. (a) Grantee shall not engage in the business of selling, repairing, or installing television receivers, radio receivers, or accessories for such receivers within the city during the term of this franchise.- (b) This franchise authorizes only *the operation of a CATV system as provided for her3in, and does not take the place of any other franchise, license, or permit which might be required by law of the grantee. Section 14. Safety Requirements. (a) TLe grantee shall at all times employ the highest degree of care -6- u a:l is commensurate with the practical operation of its business and shall install and maintain in use commonly accepted methods and devices for pre- venting failures and accidents which are likely to cause damage, injuries, or nuisances to the public. (b) The grantee shall install and maintain its wires, cables, fixtures, aad other equipment in accordance with the requirements of the National r Electric Safety Code promulgated by the National Bureau of Standards and the National Electrical Code of the National Board of Fire Underwriters, as well as applicable regulations of the city, as the same may, from time to time, be amended, and in such manner that they will not interfere with any installations of the city or of a public utility serving the city. (c) All structures and all 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, shall at all times be kep-c and maintained in a safe, suitable, substantial condition, and in good order and repair. (d) The grantee shall maintain a force of employees at all times sufficient to provide safe, adequate, and prompt service for its facilities. ,Section IS. New Developments. It shall be the policy of the city liberally to amend this franchise, upon application of the grantee, when necessary to enable the grantee to take advantage of any developments in the field of transmission of television and radio signals which will afford it an opportunity more effectively, efficiently, or economically to serve its customers; provided, Ylowever, that this section shall. not be construed to require the city to make any amendment or to prohibit it from unilaterally changing its policy stated herein. Section lb. Company Rules. The company shall have the authority to promulgate such regulations, %.-ms, conditions and other rules governing the conduct of its business as :,a:l be reasonably necessary to enable the company to exercise its rtt:it.s and perform its obligations under this franchise, and to assure uninterrupted services to each and all of its customers; provided, however, that such rules shall not be in conflict with the provisions of this franchise. Such rules shall. be maintained by the company as a part of its records. Section 17. Conditions On Street Occupancy. (a) All transmission and distribution structures, lines, and equip- ment erected by the grantee within the city shall be so located as to cause minimum. interference with the proper use of streets, alleys, and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who join any of such streets, a.leys or otherpublic ways and places. (b) In case of disturbance by grantee of any street, sidewalk, alley, public way, or paved area, the grantee shall, ;at its own cost and expense 9 and in a manner approved by the governing body, replace and restore such street, sidewalk, alley, public way, or paved area in as good a condition as before the work involving such disturbance, and shall maintain the restoration in an approved condition during the term of this franchise. (c) if at any time during the period of this franchise the city shall lawfully elect to alter or "change the grade of any street, sidewal, alley, or other public way, the grantee, upon reasonable notice by the city, shall remove, relay, and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense. (d) Wherever practical the company shall use existing pole facilities of public utilities under negotiated contracts. (e) Any poles or other fixtures placed in any public way by the grantee s:;al.l be placed in such manner as not to interfere with the usual travel of each public way. (f) Th.e grantee shall, on the request of any person holding a build-- .. - moving pE.rnnit issued by the city, temporarily raise or lower its w„res M �1 to permit the moving of buildings. The reasonable expense of such tem-- porary removal or .raising or lowering of wires shall be paid by the person requesting the game, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than forty- eight (48) hours advance notice to arrange for such temporary wire changes. (g) Tie grantee shall have the authority to trim trees upon and over - banging streets, alleys, sidewalks, and public ways and places of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee. (h) In all sections of the city where the cables, wires, or other like., facilities of public utilities are placed underground, the grantee shall place its cables, wires, or other like facilities underground to the maximum extent that existing technology reasonably permits the grantee to do so. Section 18. Preferential Or Discriminatory Practices Prohibited. The grantee shall not, as to rates, charges, service, service facilities, riles, regulations, or in any other respect, make or grant any undue pre- fE: rence or advantage to any person, nor subject any person to prejudice or disadvantage. Section "9. Removal of Facilities Upon Request. Upon termination of service to any subscriber, the grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his request. Section 20. Filings and Communications With Regulatory Agencies. Copies of all petitions, applications and communications submitted by the grantee: to the Federal Communications Commission, Securities and change Commission, or any other federal or state regulatory commission i'vency having; jurisdiction in respect to any matters affecting CATV .: rations authorized pursuant to this franchise, shall be made ava.I Late -he governing body upon request. M Section 21. City Rights In Franchise. (a) The right is hereby reserved to the city of the City Board to adopt, in addition to the provisions contained herein and in existing appli- cable ordinances., such additional regulations as it shall find necessary in tho, exercise of the police power; provided that such regulations, by ordi- nance or otherwise, shall be reasonable and not in conflict with the rights herein granted. (b) The city shalj have the right to inspect the books, records, reaps, plans, income tax returns, and other like materials of the grantee ^> at any time during normal business hours. (c) The city shall have the right to supervise all construction or in.Stallation work performed subject to the provisions of this franchise and make such inspections as it shall find necessary to insure compliance with the terms of this franchise and other pertinent provisions of law. (d) At the expiration of the term for which this franchise is granted as provided for herein, the city shall have the right to require the grantee to remove at its own expense all portions of the CATV system from all public ways within the city. Section 22. Payment To The City. The gran=ee shall within 30 days after the close of each calendar year pay to the city an amount equal to three per cent (3 f) of the annual gross subscriber revenues as defined in Section 3 (g) during the year, for t.hc use of the streets and other facilities of the city in the operation of the Cl,,TV system and for the municipal supervision thereof. This payment 10_ shall be in addition to any other tax or payment owed to the city by the ;rantee. Section 23. Forfeiture Of Franchise. (a) In addition to all other rights and powers pertaining to the City by virtue of" this franchise or otherwise, the city reserves the right to terminate and cancel this franchise and all .rights and privileges of the grantee hereunder in the event that the grantee fails to begin cable service within one and one-half (1-1/2) years from the effective date of this fran- chise ordinance and receipt of FCC approval. Section 24. Duration and Acceptance of Franchise. (a) This franchise and the rights, privileges, and authority hereby granted shall take effect and be in force from and after publication hereof, as provided by law, and shall continue in force and effect for a term of Thirty:-- .11 ( 3) years, provided that within thirty (30) days after the date of the publi- cation of this ordinance the grantee shall file with the clerk of the city of Fairho e___ its unconditional acceptance of this franchise and promise to comply with and abide by all of its provisions, terms, and con- ditions. Such acceptance and promise shall be in writing duly executed and sworn to, by or on behalf of the grantee before a notary public or other officer authorized by law to administer oaths. Section 25. Erection, Removal, And Common User Of Poles. (a) No poles or other wire -holding structures shall be erected by thc; grantee without prior approval of the governing body with regard to location, height, type and other pertinent aspects. However, no location of any pole or wire -holding structure of the grantee shall be a vested interest anJ such poles or structures shall be removed or modified by the grantee at its own expense whenever the governing body determines that the public .;,nvenience will be enhanced thereby. (b) Where poles or other wire -holding structures already existing (b) The grantee shall receive no consideration whatever for or in connection with its service to its subscribers other than in accordance with this section. (c) If in the .future, the State of Alabama or the ]FCC regulates the rates of the grantee for the service provided for in this fran- chise, this section shall be of no effect during such state or federal regu- lation to the extent of any conflict therewith. Section 28. Separability, If any sE!ction, subsection, sentence, clause, phrase, or portion of this ordinance i:3 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 portion hereof. Section 29. Ordinances Repealed. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are, to the extent of the conflict, hereby repealed. Section 30. Ordinance Effective Date. That this Ordinance shall take effect and be in force thirty days after its; enactment and its publication in full within such period at grantee's expense once a Nveek for three consecutive weeks in a newspaper published in the city. Ac'opted: (i( 19 /O Attest: Z`ity Clerk -� Mayor .Jc,te filed with the Mayor: , 19 Dare approved by the Mayor: 19 i for use in serving the city are available for use by the grantee, but it sloes not make arrangements for such use, the governing body may require the grantee to use such poles and structures if it determines that the public convenience will be enhanced thereby and the terms of the use availably to the grantee are just and reasonable. (c) Where the city or a public utility serving the city desires to r make use of the poles or other wire -holding structures of the grantee but ao,reement therefor with the grantee cannot be reached, the governing body may require the grantee to permit such use for such consideration and upon such terms as the governing body, shall determine to be just and reasonablet,> if the governing body determines that the use will enhance the public con- venience and will not unduly interfere with the grantee's operations or de- prive grantee of its property without due process of law. Section 26. System Design, Channel Uses And Access Programming Facilities. System design, channel uses and access programming facilities shall in all respects comply with Federal Communication Commission Rules and Fogulations prescribing minimum standards for CATV systems serving major markets. Section 2'7. Rates. (a) The following rates and charges are hereby authorized for ser- vice under this franchise: 1. Initial tap -in and connection charges: $17.50, provided that for new service requiring an extension from grantee's existing line of more than 500 feet grantee may, in addition to its regular installation charge, require the subscriber to pay the actual cost of that part of the extension which is in excess of. 500 feet. 2. Monthly rates: $8.00 3. The rates provided for above shall not be changed by grantee without prior approval of the governing body, except that after the first two years of the term of this franchise, the charges may be in- creased by the grantee without such approval to the extent of the percentage ink.,rease in the cost of living as shown by the Consumer Price Index For. Services Excluding Rent as published in the Bureau of Labor Statistics, MONTHLY 'LABOR REVIEW, complied by the Bureau of Labor Statistics of the United States Department of Labor. -12- I'airhope City Council Minutes for meeting M Page No. 2 ch 27, 1978 Councilman Jack A. Stip s told members of the Council that the License Clerk s brought to his attention the fact that people are buy'_ g Delivery Licenses and paying only for a quarter of a y r, yet they are using the license for the whole year. Mr. Stipes said that he would like to see the Licen e Ordinance amended to require the purchase of the liceeses n a yearly basis and not allow licenses to be paid for uarterly. Councilman Jack Stipes moved to *introduce the following Ordinance: ORDINANCE NO. AN ORDINANCE TO AMEND ORDINANCE NO. 544 ADOPTED THE 25TH DAB' OF NOVEMBER, 1974, ESTABLISHING THE LICENSE SCHEDULE FOR THE CITY OF FAIRHOPE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF' FAIRHOPE ALABAMA THAT ORDINANCE NO. 544, AN ORDINANCE ESTABLISHING THE LICENSE SCHEDULE FOR THE:ICITY OF FAIRHOPE BE AND THE SAME IS HEREBY AMENDED TO READ AS FOLLOWS: SECTION 9-5. DUE DATE AND PENALTIES. All pri.vilage license taxes levied hereundershall be due on the first day of January of each year and shall be deliquent on the following first day of February, except that Insurance Licenses levied hereunder shall not be deliquent un.til the following second day of March. In the event of any license levied hereunder shall not be paid before the same has become deliquent, there shall be added thereto a penalty of fifteen (15%) percent of the amount of such license plus interest at the rate of six percent (6%) a 37ear from the date of such deliquency, and a citation fee of one dollar and fifty cents ( $ 1.50 ), which penalty, interest and citation fee must be collected by the City Clerk when the license is issued. ALL LICENSES LEVIED HEREUNDER SHALL BE DUE AND PAYABLE IN FULL ON THE FIRST DAY OF JANUARY OF EACH YEAR, AND NO LICENSES SHALL BE PAID IN INSTALLMENT PAYMENTS SUCH AS QUARTERLY OR SEMI-ANNUALLY. ADOPTED THIS THE 16 ATTEST: CITY CLERK DAY OF 1978 BY: MAYOR Fairhope City Council Minutes for Meeting February 13, 1978 Pale No. 2 CITE' L PZITS OF FAIRHOPE TO HAVE A PERMIT ISSUED BY THE BUII.6I1.G INSPECTOR. Motion carried. Councilor n Jack A. Stipes told Council members that he had spok with Mrs. Mixson regarding the drainage on Pecan Street an that he was going to get with her and report back to th Council. The matter f advertising public notices with all three of the news, pers ( Eastern Shore Courier, Mobile Press Register and \nwspapers Ind•,erpendent ) was discussed by the Mayor and Council.uncilman Henry G. Bishop requested that all three of the submit letters to the Council ex- plaining whaeir charges are with the rates on a seperate sheet by theruary 27, 1978 meeting. Councilman Sam E. Box moved, seconded by Councilman David E. Bishop, for th City to advertise for bids on selling thee old duplicating m chine. Motion carried. This being the dat set for the opening of bids on Liability Insurance for City fficials the following bids were receive( BAUMHAU R CROOM 1,461.00 ( Millio Dollar Coverage ) PITMAN RE LTY 1,607.00 Councilman Henry G. Bis p moved, seconded by Councilman Billy lion Wiggins, for t e City to accept the lowest__bi.d for million dollar covera e for each Councilman with cove•rag to begin immediately. Motion carried. The Mayor and Council discuksed the merits of a general 2% sales tax, along with th increasing costs of electricity Councilman Henry Bishop moved to introduce the following Ordinance : ORDINANCE NO. c WHEREAS, The City of Fairhope has experienced a wholesale rate increase of 21.7 % and, WHER.EA3, It was necessary for the City to have a electric study made to determine what adjustments would have to be made in the retail rate; and, WHER.EA3, In addition to the electric rate increase the electrical department had an unusual capital improvement expenditure on the electric system during 1977 of $ 76,617.52 which has to be re- covered, and; WHEREAS, On January 27, 1978 a $ 64,707.54 refund was made to the City of Fairhope by Alabama Power Company and a motion was made on March 28, 1977 to refund this amount to the retail customers by the City Council, and; r. Fairho-pe City Council Minutes for meeting February 13, 1978 Page ND. 3 WHEREAS, The City Electrical Consultant Engineer recommends that the refund be used to offset the unusual capital expenditure so that the electric rate r need not be further increased to reflect this expense; NOW, THEREFORE BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF FAIRHOPE, that the motion that with reference to the refund dated March 28, 1977, be recinded, and be it further Ordained that the Electric Rates as outlined.in the electrical rate study dated February 1, 1978, be adopted. ADOPTED THIS THE _DAY QF �`rC/�". 1978. s BY:, m r �' X), ?� MAYOR---- ATTEST: Councilman am E. Box moved, seconded by Henry G. Bishop, that all ru es governing the Council, which might unless suspended, p event the passage and adoption of this Ord- inance to rec d the motion with reference to the refund dated'Karch 28, 1977 and adopt the dlectric rates as out- lined in the el ctric rate study dated February 1, 1978, be and the same re he suspended, for the purpose of said Ordinance to e finally passed and adopted at this meeting. Upon bei put to vote the following vote was recorded: AYES: H ry G. Bishop, Sam E: Box, Jack A. Stipes and Billy D. 'ggins. NAYES: David E. Bishop. The Ordinance was held\pver for final adoption until the February 27th, 1978 meeting of the Council. Mr.. Don Sutherland of Bat in County Electric Membership Corporation came before the Mayor and Council to present a gross revenue tax check in the amount of $ 1,816.26 representing the gross revenu s of the customers of Baldwin County EMC in the City and Pol ce Jurisdiction. Mr. Suther- land introduced Mrs. Beverly Je ings, a new member of the Baldwin E.M.C. Board to the Mayor nd Council who presented the check to Mayor Nix.