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Ordinance 96-15 ORDINANCE NO. 96- 15 ~'~6'~ AN ORDINANCE AMENDING COLLIER COUNTY ORDINANCE NO. ~C;~-90, AS AMENDED, RELATING TO THE COLLIER COUNTY CABLE T~EVISION FRANCHISE ORDINANCE; AMENDING SECTION' 3, ~j *c~ PR'~VIDING FOR MODIFICATION OF FRANCHISING PROVISIONS; FO~V,' MODIFICATION OF BO~]DING REQUIREMENTS; AMEN'DING X- S~TION 17 PROVIDING FOR MODIFICATION OF CABLE SYSTEM fJ~STRUCTIaN; PROVIDING FOR CONFLICT AND SEVERABILITY, -~z___Z~}c~OVIDING FOre INCLUSION I~ CODE OF LAWS ~D ORDINanCES AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Board of Commissioners of Collier County, Florida enacted Ordinance No. 88-90, the Collier County Cable Television Frahchise Ordinance, on November 15, 1988; and WHEREAS, the Board enacted County Ordinance No. 94-12 on March 17, 1994 which amended said Ordinance; and WHEREAS, the Board is desirous of further amending certain provisions of said Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, THAT: SECTION ONE: AMENDMENT TO SECTION 3 OF COLLIER COUNTY ORDINANCE 88-90 Section 3 is hereby amended to read as follows: SECTION 3. FRANCHISING PROVISIONS 3.1 Franchise Required (a) Any individual, partnership, corporation or other entity desiring to install and/or operate any cable television system in the unincorporated area of Collier County shall apply to the Board for a franchise pursuant to this Ordinance. The issuance of a franchise pursuant to this Ordinance shall allow the franchisee to install, construct, maintain and operate a CATV system e{ ^-:-:--*~-- transmission ~-~ ~:-*-~"*:^~ e~ electronic signals by "-~^ --~ associated and s~ilar ~*":^-- ~eludin"~ but -^* en. dcr ~;hrough, across and upo~ t~hc public ~ in accordance with the additional requirements of this Ordinance throughout the area which is described in the franchise agreement and for which approval has been received. Prior to any installation or construction, the franchisee shall apply to the County for a - 1 - Words .u_n_~_e__r__lin_e_~ are added; words e~e[,+ek.throuGh are deleted. permit, granting the privilege to install, construct, maintain and operate a CA~ system along~ under, ~ t~~, acro~c and upo. t.hc public ~ under the Jurisdiction of the county in accordance with such rules and regulations as shall be recommended by the County Engineer and approved by the Board. (b) It shall be a violation of this Ordinance to commence or engage in the construction, operation or maintenance of a cable system in Collier County without first having obtained a cable franchise awarded by the Board of County Con%missioners. 3.2 Franchise Award Nonexclusive franchises may be awarded by the Board of County Commissioners for all or any portion of the County to applicants upon a finding that such award is consistent with the public interest, furthers the goal of providing efficient CA~; service to all residents of the unincorporated areas of the County and does not result in material abuse of County streets, o__r easements arm o__E rights-of-way, and after consideration of the factors referred to in Section 3.6(a) of this Ordinance. The County shall adopt by resolution such application forms and other administrative procedures --~ ~^^^ es are deemed necessary and desirable for efficient administration of this Ordinance. 3.3 Franchise Application Procedure: Information RecEuired. All applications to construct, operate, or maintain any C/TV system in the unincorporated areas or to traverse any portion of those areas for the transmitting or conveying of such service elsewhere, shall be filed with the Board or such office of the County as the Board may designate by resolution, ar~ each such application shall set forth, contain, or be accompanied by the following: (a) The name, address and telephone nua~r of the applicant. (b) A detailed statement of the corporate or other business entity organization of the applicant, including but not limited to the following: - 2 - Words underlined are added; words struck through are deleted. (1) The names, business addresses, state of residence and country of citizenship of all general partners and corporate officers of the applicant. (2) The names, business addresses, state of residence and country of citizenship of all persons and entities having, controlling, or being entitled to have or control fifteen percent (15%) or more of the ownership of the applicant and the respective ownership share of each such person or entity. (3) The names and addresses of any parent or subsidiary of' the applicant and of any other business entity owning or controlling in whole or in part of owned or controlled in whole or in part by the applicant. (4) A detailed and complete financial statemen~ of the applicant, prepared by a certified public accountant, for the five (5) fiscal years immediately preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a responsible lending institution or funding source, addressed to both the applicant and the County, setting forth a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the County; or if the corporate or business entity organization of the applicant has not been in existence for a full five (5) years, applicant shall submit a ccrtificd audited financial statement for the period of its existence or other documentatio~ required by the county. (5) A detailed description of all previous experience of the applicant in providing CATV services or related or similar services which includes a statement identifying, by place and date, any other cable television franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such system(s); and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof. - 3 - Words underlined are added; words struck through are deleted. (c) A detailed financial plan (pro forma) describing for each year of the franchise, projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements, and statement of sources and uses of funds. If applicant submits a detailed fin~ncia~ plan for a period of less than the requested term of the franchise. the countv mav award a franchise to applicant but for a period of time equal to the number of years or portion thereof. reflected in the financial plan. (d) A detailed description of the proposed plan of operation of the applicant, which shall include, but not be limited to the following: (1) A detailed map indicating all areas propesed to be served, a proposed time schedule for the installation of all equipment necessary tc become operational throughout the entire area to be served, and the projected total cost for construction of the system. (2) A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of any said classifications, including but not limited tO installation charges, service charges, special, extraordinary, or other charges recnaested by the c0u~ty. The purchase price, terms, and nature of any optional or required equipment, device, or other thing/~ to be offered for sale to any subscriber shall be described and explained in detail. (3) A detailed statement describing the technical design proposed, the actual equipment, and the operational and technical standards proposed by the applicant. In addition. ~pp~ic~Dt shall submit tO t~e County a~ affidavit 9r l~tter ~rom ~ qualified engineer acceptable to both parties with experience in ~he cable industry which letter states that the DrODosed ~yStem will adequately provide CATV .service to the proposed ~erv~e .area and that the Applicant's construction projection ~ostS are reasonable. - 4 - Words underlined are added; words etruck through are deleted. (e) A copy of the form of any agreement, understanding, or other instrument proposed to be entered into between the applicant and any subscriber. (f) A detailed statement setting forth in its entirety any and all agreements and understandings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm or corporation which may affect control or operation of the system contrary to this Ordinance, as amended, or a franchise agreement. (g) A copy of any ~ecuted agreement covering the franchise area, if existing between the applicant and any public utility providing for the use of any facilities of the public utility, including but not ljnited to poles, lines or conduits. (h) True and exact copies, if filed, of the last and most current FCC Cable TV Information Report and FCC Form~ ~ as submitted to the FCC. (i) Any other reasonable information which could materially affect the granting of the franchise and which is requested by the County. f~] For applicants in existence for less than three years, except for subsidiaries or affiliants of existing cable ~Ompapies, the CoUDty in its diSCretion may agree to accept other ~nformat~on in lieu of the items reflected in this Section 3,$, provided it is acting reasonably and is satisfied that the ~pplicapt has materially compl~ed with the requiremeDts of this Qrdinance. 3.4 Application Fee (a) Each original or transfer application submitted for a franchise under the provisions of this article shall be accompanied by a non-refundable application fee in the amount of $10,000.00 to offset the reasonable cost of processing and evaluating said application for conformity with the provisions and conditions of this Ordinance including, but not limited to, the payment of consultants' fees; provided, however, that the Board reserves the right to require reimbursement to the County - 5 - Words underlined are added; words struok through are deleted. of all costs of processing and evaluating any application, cvcn in excess of $10,000.00, if such extraordinary costs are determined by the Board by Resolution to be necessary for the proper evaluation of such application. Each renewal application submitted for a franchise under the provisions of this article shall be accompanied by a non-refundable application fee in the amount of Five Thousand Dollars ($5,000.00) to offset the reasonable costs of processing and evaluating said application, provided, however, if such costs exceed Five Thousand Dollars ($5,000.00), then the franchise holder shall be responsible for any additional costs~ ~p ~e ~ ~ e~ a~ a~ditional Fivc ~hcusand Dollars (~ ..... n~ (b) Each franchise holder filing an application ,for expansio~l of its designated franchise area shall pay the sum o~ ~'ive Thousand Dollars ($5.000.00] such applicatio~ fcc as is required by subsection (a) of this Section 3.4. Upon Board ~pproval or denial of the eXpanSion, the county shall refund t9 the franchisee any portion of the expansion application fee which iS not Used by the County for the review of the expansion ~pplication, fc] ~ny applicant who has had a .franchise approved by the Countv and then declared null add void or revoked by a court ~av not be reauired tO P~Y an aDplication fee, unless the Board determines that the county will incur actual expenses includinq but not ]imite~ to coDSU~tinq fees to review a ~ew application, 3.5 Public Hearing On Applications (a) Upon receipt of an application for a franchise submitted under the provisions of this article and within 90 days, or such extended period of time as the Board may approve upon request by the Manager, the County Manager shall review the application for sufficiency and compliance with Section 3.3 hereinabove. If the County Manager finds that the application is incomplete, he shall return it to the applicant with a letter describing any and all insufficiencies found in the application. The applicant may then reapply for a franchise upon correcting - 6 - Words underlined are added; words struck through are deleted. the deficiencies noted by the County Manager. Upon receipt of the revised and amended application, the County Manager shall review the application within a ninety-day (90) period~ or such extended period of time ~s.th$ Board may approve upon request by ~h~ co~ptv ManaGer. Upon review and after finding that the application is complete and in compliance with Section 3.3, the County Man]ger shall make a recommendation to the Board regarding the award of a franchise to the applicant and shall forward said application to the Board for publication of a notice in accordance with Section 3.5(b) herein. (b) Upon receipt of an application for a franchise and after review by the County Manager, the Board shall publish once a week for three (3) consecutive weeks in a paper of general circulation in the County a notice of consideration of a CATV franchise. Said notice shall name the applicant, describe the proposed service area, invite the filing of an application under the provisions of this article by all persons interested in establishing a CATV system in the proposed service area, invite objections to the establishment of a CATV system in the proposed service area from existing CATV systems and the general public and set a time and date certain, withiD at least twenty-five (25) business days from the date of the first publication of the notice, for a public hearing on all applications filed for the establishment of a CATV system in said proposed service area and for all objections to the establishment of such CATV system. Any %~ritten reports, studies or materials to be considered by the Board of County Commissioners at the public hearing must be submitted to the County Manager's office within fifteen (15) b~siness days from the date of the first publication of notice of the public hearing. (c) The initial application and all subsequent applications received prior to the public hearing shall be a matter of public record. Any application may be amended in writing at any time prior to the date of the public hearing. No amendments to filed applications, oral or written, and no new - 7 - Words underlined are added; words struck throuefa are deleted. applications shall be received after the time and date set for the public hearing or a continued public hearing, unless amendments to the application are requested bv the County. The public hearing may be continued from time to time and from place to place as determined to be necessary by the Board. 3.6 Issuance Of Franchise (a) The Board may issue one (1) or more non-exclusiVe franchises from the applications filed and considered at a public hearing. The Board, shall, prior to an issuance of a franchise, consider the ihformation and criteria required by this Ordinance, and any other information it deems appropriate in making a determination to issue a franchise. During the public hearing or a continued public hearing the Board of County Commissioners shall also consider, investigate and make findings regarding the following: (1) The economic impact upon private property within the franchise area; (2) The public need for such a franchise, if any; (3) The capacity of public rights-of-way to accommodate the cable system; (4) The present and future use of the public rights-of-way to be used by the cable system; (5) The potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public; (6) The financial ability of the franchise applicant to perform and to make the necessary investment to erect, operate and maintain the cable system; (7) The experience of the applicant in the erection, operation and maintenance of a CATV system; (8) The location and type of permanent facilities proposed to be constructed for the cable system. (9) The technical quality and completeness of the proposed plan for operation of the cable system. - 8 - Words underlined are added; words struck thro~g4~ are deleted. (10) The requisite legal, character, financial, technical and other qualifications necessary to construct, own and operate a cable television system. (b) In considering the desirability of an additional or expanded cable operator, the Board of County Commissioners shall balance the desirability to promote competition in the cable television industry so as to promote a diversity of information and the provision of high-quality cable services at the lowest economic price against the unreasonable disruption of private and public proper~y by multiple cable operations. Furthermore, if the County grants a franchise for an additional cable operator or expands a current operator's franchise, the County may impose such conditions as it deems necessary and proper. , (c) The Board of County Commissioners has the authority to retain an expert or consultant to conduct a study at any time in order to determine whether the County is able to handle an overbuild or overlapping franchises, economically or practically, or for any other purpose which the Board deems necessary in order to adequately evaluate a franchise application. Any resulting fees or expenses of experts or consultants are to be borne by the applicant. (d) The Board shall vote and thereafter notify in writing all applicants of its decision within thirty (30) days from the adjournment of said public hearing. Said notice shall specify the aforementioned factors that were determinative of its decision. All of the statements and declarations contained in the application shall be incorporated as conditions and material representations of any franchise that is issued by the Board, and the breach of any of such conditions and representations shall constitute cause for termination of the franchise by the Board. The approval O~ the writteD decision bv the Board shall be.deemed an award of the franchise. 3.7 Term Of Franchise No franchise shall be issued for a term longer than ten (10) years. All current CATV franchise agreements shall remain in - 9 - Words underlined are added: words effect until their respective date of expiration, subject to any provisions of this Ordinance deemed applicable to existing franchisees. However, any franchisee holding a current franchise under any previous ordinance or franchise agreement may file for a renewal of its franchise pursuant to the terms of this Ordinance which require adequate notice to the public and opportunity to comment, and may have its franchise renewed for a period not to exceed ten (10) years. 3.8 Effective Date Of Franchise (a) Any franchise granted pursuant to the provisions of this Ordinance shall become effective as provided herein. (b) Within thirty (30) calendar days after the awarding of a franchiseT p~rsuant to Section 3.6{d] of this OrdiDance~ or within such extended period of time as the Board in its discretion may authorize, the franchisee shall file with the Board its written acceptance of the franchise, together with thc a commitment for insurance policies and bonding documents required by Sections 11 and 12 hereof, and its agreement to be bound by and to comply with all requirements pursuant to the provisions of this Ordinance or the franchise. Such acceptance and agreement shall be acknowledged by the franchisee before a notary public, and shall in form and content be satisfactory to and approved by the Board. The franchisee shall eMeGut¢ the franchise a~reement and other documents required bv the County within 90 days o~ the award of the fraDchis¢ pursuaDt to seCtioD 3.6(d~ unless the County agrees to ~n e~tens~OD o~ such date. 3.9 Business Authorization Any franchise granted by the County shall authorize and permit the franchisee to engage in the business of operating and providing a CATV system in all or a portion of the County, and for that purpose, subject to the approval of the Public Works Administrator, to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public right-of-way or strcct e_a~$~ment, such poles, wires, cable, conductors, ducts, conduits, vaults, - 10 - Words underlined are added; words struck through are deleted. manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system and in addition, subject to the approval of the Public Works Administrator, so to use, operate, and provide similar facilities or properties rented or leased from other persons, including but not limited to any public utility or other franchisee furnished or permitted to do business in the County. 3.10 Changes To Franchise Terms And Conditions. No changes in the terms of any franchise may be made without the prior writken approval of the Board. 3.11 Franchise Fee (a) The franchisee shall pay as a franchise fee to the County the maximum percentage allowable by Federal law, up to a maximum of five percent (5%) of the franchisee's gross revenues as defined herein or such greater percentage as may from time to time be approved by Federal law and renegotiated with the franchisee. ^-~^-~ ....... ~^- ~ parcantata franchise fee ~z ....... offactive data ~ thc franchise. ~ quartarc shall clo~c quartcrly grccc rcvcnucs rcpcrt ~ a ~ ~ ~ thc ........ ~n estimated franchise fee monthly pa~ept shall be payable to the county within twentv ~20) days a~ter the close o= each ~oDth. These pa~ents shal~ be accompanied by an estimated monthly gross revenues report in a fom pre-approved by the Countv. Each monthiv estimated franchise fee pa~ent shall be ~dJusted. as a credit or debit. bv the difference between the estimated uross revenues collected during the precedin~ moBth aD~ the actual uross revenues collected by the Drecedinu month, Within sixty (60) days after the close of each calendar year, the franchisee shall deliver to the County an annual gross revenues - 11 - Words underline4 are added; words struck through are deleted. audit report prepared by a certified public accountant in a form pre-approved by the County. All amounts which are not paid when due and payable hereunder shall bear interest at the legal rate, as defined in Florida Statutes, until paid and franchisee shall be fined S100 a day until PaYment is made. (c) Notwithstanding the requirement of paragraph 3.11(b) of delivery of a quarterly mon~%hlv gross revenues report and an annual audit report by franchisee, the County shall have the right and authority to inspect the franchisee's revenue records unde~ the franchise and the right of audit and recomputation of any and all amounts payable under this Section. All costs associated with any such audit shall be borne by franchisee when said audit results in increasing, by more t~han 10%, the franchisee's annual payment to the County. (d) No acceptance of payment shall be constr, 3d as a release or as an accord and satisfaction of any claim the County may have for further operational sums payable under this Ordinance or for the performance of any other obligation hereunder until barred by the Statute of Limitations or the transpirance of three (3) years, whichever may be shorter. 3.12 Franchise Restrictions (a) Any franchise granted under this chapter shall be nonexclusive. (b) No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except those prescribed herein or as mandated by State or Federal law. (c) Any privilege claimed under any such franchise by the franchisee in any street or other public property shall be subordinate to any prior lawful occupancy of the streets or other public property. 3.13 Renewal Of Franchise (a) During the 6-month period which begins with the 36th month before the franchise expiration, the franchising authority may on its own initiative, and shall at the request of the cable operator, commence proceedings which afford the public - 12 - Words underlined are added; words struck through are deleted. in the franchise area appropriate notice and participation for the purpose of: (1) identifying the future cable-related community needs and interests; and (2) reviewing the performance of the cable operator under the franchise during the then current franchise term. (b) Upon completion of a proceeding under subsection (a), a cable operator seeking renewal of a franchise may, on its own initiative'or at the request of the County, submit a proposal for renewal. Any such proposal shall contain such material as the County may require, including proposals for an upgrade of the cable system. The County may establish a date by which ~uch proposal shall be submitted. (c) Upon submittal by a cable operator of a proposal to the County for the renewal of a franchise, the County Manager shall provide prompt public notice of such proposal and, during the 4-month period which begins on the completion of any proceedings under subsection (a), renew the franchise or, issue a preliminary assessment that the franchise should not be renewed and, at the request of the operator or on its own initiative, commence an administrative proceeding, after providing prompt public notice of such proceeding to consider whether: (1) the cable operator has substantially complied with the material terms of the existing franchise and with applicable law; (2) the quality of the operator's service, including signal quality, response to consumer complaints, and billing practices, but without regard to the mix, quality, or level of cable services or other services provided over the system, has been reasonable in light of community needs; (3) the operator has the financial, legal, and technical ability to provide the services, facilities, and equipment as set forth in the operator's proposal; and - 13 - Words underlined are added; words otruck throu~h are deleted. (4) the operator's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests. In any proceeding under this subsection, the cable operator shall be afforded adequate notice and the cable operator and the Board or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceeding under subsection (a)), to require the production of evidence, and to question witnesses. A transcript shall be made of any such proceeding. At the completion of a proceeding under this subsection, the Board shall issue a written decision granting or denying ,the proposal for renewal based upon the record of such proceeding, and transmit a copy of such decision to the cable operator. Such decision shall state the reasons therefor. (d) Any denial of a proposal for renewal shall be based on one or more adverse findings made with respect to the factors described in subparagraphs (1) through (4) of subsection (c) pursuant to the record of the proceeding under subsection (c). The Board may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise under subsection (c)(1) or on events considered under subsection (c)(2) in any case in which a violation of the franchise or the events considered under subsection (c)(2) occur after the effective date of this Ordinance unless the County has provided the operator with notice and the opportunity to cure, or in any case in which it is documented that the County has waived its right to object, or has effectively acquiesced. (e) Any cable operator whose proposal for renewal has been denied by a final decision of the Board made pursuant to this section, or has been adversely affected by a failure of the Board to act in accordance with the procedural requirements of this section, may appeal such final decision or failure pursuant - 14 - Words underliDe4 are added; words struck through are deleted. to the provisions of 47 U.S.C. Section 555 of the Cable Communications Policy Act of 1984. The court shall grant appropriate relief if the court finds that: (1) Any action of the Board is not in compliance with the procedural requirements of this section; or (2) In the event of a final decision of the Board denying the renewal proposal, the operator has demonstrated that the adverse finding of the Board with respect to each of the factors described in subparagraphs (1) through (4) of subsection (c) on which the denial ]' based is not supported by a preponderance of the evidence, based on the record of the proceeding conducted under subsection (c). (f) Any decision of the Board on a proposal for renewal shall not be considered finial unless all administrative review has occurred or the opportunity therefor has lapsed. (g) For purposes of this section, the term "franchise expiration" means the date of the expiration of the term of the franchise, as provided under the franchise, as it was in effect on the date of the enactment of this Ordinance. (h) Notwithstanding the provisions of subsections (a) through (g) of this section, a cable operator may submit a proposal for the renewal of a franchise pursuant to this subsection at any time, and the Board may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time (including after proceedings pursuant to this section have commenced). The provisions of subsections (a) through (g) of this section shall not apply to a decision to grant or deny a proposal under this subsection. The denial of a renewal pursuant to this subsection shall not affect action on a renewal proposal that is submitted in accordance with subsections (a) through (g). (i) In the event the Board elects not to grant a renewal of the franchise under the provisions of subsection (a) of this section or in the event a franchise is terminated under - 15 - Words underlined are added; words struck through are deleted. the provisions of Section 27 of this Ordinance after the franchise holder has exhausted all administrative and legal remedies of appeal denying renewal of the f~anchise, the franchise holder shall have a period of one (1) year to sell its CATV system to a person approved by the Board for a new franchise, which approval shall not be unreasonably withheld, or a period of one year after termination o£ service to remove, at its expense, all portions of the CATV system from the public rights-of-way as described in Section 28 of this Ordinance. In the event suc~ previous franchise holder does not effectuate a sale of its CATV system to a person approved by the Board for a new franchise or does not remove all portions of its CATV system from said public rights-of-way within said period of one ,(1) year, the portions of the CATV system that remain within said public rights-of-way shall be considered abandoned and shall be governed by the provisions of Section 28 of this Ordinance. (J) In the period between termination of the franchise and the granting of another franchise, but not to exceed twelve 12 months, the franchisee shall continue to provide service to the public as if its franchise were still in effect. SECTION TWO: AMENDMENT TO SECTION 11 OF COLLIER COUNTY ORDINANCE 88-90 Section 11 is hereby amended to read as follows: SECTION 11. INSURANCE 11.1 Insurance (a) Simultaneously with the execution of the franchise ag~eemeDt, w~ thirty ~-}~ days aftcr the cffcctivc date e~ ~^ ~ .... ~-^ the franchises shall provide proof of general liability insurance insuring against claims for liability and damages. The franchises shall maintain said insurance throughout the term of the franchise and said insurance shall include, at a minimum, the following types of insurance coverage in amounts not less than shown: (1) Worker's Compensation: Coverage to apply for all employees for Statutory Limits in compliance with the - 16 - Words underlined are added; words struck ~ ..... ~ are deleted applicable state and federal laws. The policy must include Employers' Liability with a limit of $500,000 each accident. (2) Comprehensive General Liability': Shall have minimum limits of $1,000,000 Per Occurrence Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include premises and/or Operations, Independent Contractors, and Subcontractors and/or Completed Operations, Broad Form Property Damage, XCU Coverage, and a Contractual Liability Endorsement. '(3) Business Auto Policy: Shall have minimum limits of $1,000,000 Per Occurrence Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include Owned Vehicles, Hired and Non-Owned Vehicles ,and Employee Non-Ownership. (b) The insurance coverage obtained by the franchisee in compliance with this section shall be approved by the Risk Management Administrator and the County Attorney, and such insurance policies, along with written evidence of payment of required premiums, shall be filed and maintained with the County Manager during the term of franchise. (c) The insurance coverage and policy requirements may be changed and increased from time to time at the discretion of the Board of County Commissioners to reflect changing liability exposure and limits. (d) Nothing herein is intended as a limitation to the extent of any legal liability of the franchises. 11.2 Insurance Policy Provisions (a) Resident Coupany and Agent: All insurance policies and bonds as are required of a franchises in this Ordinance shall be written by a company or companies authorized and qualified to do business in the State of Florida, and have a minimum rating of "A XX" in Best's Rating Guit.a. (b) Certificates and Renewals: Certificates and renewals of all coverage required shall be promptly filed by the franchisee with the County Manager. Each policy shall require - 17 - Words underlined are added; words struck thrcugh are deleted. notice and the franchises shall notify the County within thirty (30) days of any cancellation or modification of any insurance coverage required by this Ordinance, which notice shall be sent by registered mail to the County Manager or his designee. Renewal certificates shall be filed with the County no less than thirty (30) days prior to the policy expiration date. (c) Additional Insured: Collier County shall be included as an additional insured on both the Comprehensive General Liability and Business Auto Liability policies. (d) Premium Payment: Companies issuing the insurance policies shall have no recourse against the County for payment of any premiums or assessments, and same shall be the sole responsibility of the franchisee. , (e) No franchise granted under this Ordinance shall be effective unless or until each of the foregoing policies' certificates of insurance as required in this Section have been delivered to the County. (f) Neither the provisions of this Section, nor the acceptance of any bonds by the County pursuant to this Ordinance, nor any damages received by the County thereunder, shall be construed to excuse performance by a franchises or limit the liability of a franchises for damages to the full amount of the bonds or otherwise. SECTION THREE: AMENDMI:]~ TO SECTION 12 OF COLLIER COUNTY ORDINA}[CE 88-90 Section 12 is hereby amended to read as follows: SECTION 12. BONDING REQUIREMENTS 12.1. Construction Bond (a) Simultaneously with the execution of the franchise a_~reement. the franchisee shall The f-~ shalltee rcquircd ~y ithi ~ ......... ~ ...... ~dinancc, post with the County either a construction bond or an irrevocable letter of credit issued by a Florida bank or a federally insured lending institution in an amount equal to one - 18 - Words underlined are added; words struck "~ ..... ~ are deleted. hundred and ten percent (110%) of the projected cost of construction and installation of the system. Existing franchisees shall post such a bond or irrevocable letter of credit with the County and as required by the County Manager at the same time as and in conjunction with submission of a construction plan or reconstruction plan as required by Section 17.1 herein, and in any event at least thirty (30) days prior to the start of construction or reconstruction. Said bond or letter of credit will be returned at the end of six (6) years to the franchisee or ~t such prior time as the system has been completed and approved by the County, provided: (1) That the franchisee has met or exceeded the construction schedule required by Section 5 and Section 17; and (2) That the franchisee has in good faith complied with all terms and conditio~ms of the franchise agreement and all provisions of this Ordinance as well as the rules and regulations herein required and permitted: (b) If the franchisee submits a cable system construction or reconstruction map and schedule pursuant to Section 17.1 of this Ordinance which provides fcr construction of the system in progressive stages to provide service to specified and definitive sections of his franchise area, the franchisee may submit a construction bond or irrevocable letter of credit equal only to one hundred and ten percent (110%) of the projected cost of construction and installation of each specified and definitive section of the system in lieu of the bond or letter of credit required by 12.1(a) of this Section; provided, however, that the franchisee must complete construction of the specified section to which the construction bond applies prior to the initiation of construction of a subsequent section. (c) If the franchisee shall fail to perform the obligations heretofore set out in this section, the franchisee shall forfeit in total to the County the hereinabove referenced construction bond. - 19 - Words underlined are added; words struck thrc~h are deleted. (d) Said construction bond shall not be in lieu of any other guarantee or indemnification required by this Ordinance and shall be in addition to the performance bond or irrevocable letter of credit required in Section 12.2(a). 12.2 Permanent Performance And Payment Bond (a) Simultaneousiv with the execution of the franchise aqreement or assiqnment of frapchise in the case of a transfer. the fr~nchisee shall ~ ' .... ~-^^ e~ w4thin t-~ '~ ~ .... e~ ths cffcctiv= d~te e~ e ehte/~{-~ ~ntcd ~ndcP this ~-~ ..... 'e~ w4~ ~ dayu ~ the .... ~-- ~ e ~ e ~ ~~ ~ e ~ .... ~-- existin~ --~-- ~ this Ordinancc furnish to the County a perfomance bond or an irrevocable letter of credit issued by a Florida bank or a federally insured len4ing institution in the amount of One Hundred Thousand Dollars ($100,000). The perromance bond or letter of credit shall be used to guarantee the compliance with perfomance requirements and pa~ent of all sums which may become due to the County under this Ordinance and/or under any franchise agreement entered into by the County and franchisee. The perfomance bond or letter of credit shall be maintained in the full amount specified herein throughout the term of the franchise and for one (1) year after the franchise e~ires or is te~inated, without reduction or allowances for any amounts which are withdrawn or paid pursuant to this Ordinance. (b) All CA~ operators in the unincorporated areas of Collier County who posses a valid, current franchise, that is in good standing, to operate a CA~ operation as of the effective date of this Ordinance shall not be required to furnish a perfomance bond until such time as current franchise expiration, transfer, or renewal. Current franchisees may negotiate accelerated franchise renewals pursuant to subsection 3.7 of this Ordinance. (c) The rights reserved to the County with respect to the bond or the letter of credit are in addition to all other rights of the County. - 20 - Words underlined are added; words otruck through are deleted. SECTION FOURZ AMENDI(ENT TO SECTION 17 OF COUNTY ORDINANCE NO. 88-90 Section 17 is hereby amended to read as follows: SECTION 17. CABLE SYSTEM CONSTRUCTION 17.1 Construction Hay and Schedule Franchises shall submit a construction plan or reconstruction plan which shall be incorporated by reference and made a part of the franchise agreement. The plan shall include cable system design details, equipment specifications, and design performance criteria. The plan shall also include a map of the entire franchise area and shall clearly delineate the following: (a) Areas within the franchise area where the cable system will be initially available to subscribers including a schedule of construction for each year that construction or reconstruction is proposed; and (b) Areas within the franchise area where extension of the cable system cannot reasonably be done due to lack of present or planned development or other similar reasons, with the areas and the reasons for not serving them clearly identified on the map. Construction or reconstruction plans and maps shall be submitted to the County Manager's office at least ninety (90) days prior to the start of construction or reconstructionT~ unleSS the County aqre~s to a lesser time period. 17.2 Early Construction and Extension Nothing in this section shall prevent the franchises from constructing or reconstructing the cable system earlier than planned. However, any delay in the cable system construction beyond the times specified in the plan report timetable shall require application to and consent by the Board. 17.3 Delay in Construction Timetable Any delay beyond the terms of construction or reconstruction timetable, unless approved by the Board, will be considered a violation of this Ordinance for which the provisions of Section 26 shall apply as determined by the Board. - 21 - Words underlined are added; words struck through are deleted. 17.4 Commencement of Construction Or Reconstruction Construction or reconstruction in accordance with the plan submitted by franchisee shall commence as soon after the grant and acceptance of a franchise as is reasonably possible. Failure to proceed expeditiously shall be grounds for revocation of a franchise. Failure to proceed expeditiously shall be presumed in the event construction or reconstruction is not commenced within twelve (12) months of the grant and acceptance of a franchise. 17.5 Additional Mandatory Extension Extension 'of a cable system into any area not specifically treated in the plan shall nonetheless be required if the terms of any of the following conditions are met: (a) Mandatory Extension Rule , Franchises shall extend cable system upon request to any contiguous area not designated for initial cable service in the construction plan when potential unserved subscribers can be served by extension of cable system past dwelling units equivalent to a density of thirty-five (35) homes per street mile. (b) Early Extension In areas not meeting the requirements for mandatory extension of cable service, franchisee shall provide, upon the request of five (5) or more potential subscribers desiring cable service, an estimate of the costs required to extend cable service to said subscribers. Franchisee shall then extend cable service upon request of said potential subscribers according to the existing rate schedule. Franchisee may require advance payment or assurance of payment satisfactory to franchisee. The amount paid by subscribers for early extension shall be non-refundable, and in the event the area subsequently reaches the density required for mandatory extension, such payments shall be treated as consideration for early extension. 17.6 Prior Approval By County Except for individual service drops, the franchises shall not erect any pole, run any line, make any attachment, nor shall any - 22 - Words underlined are added; words struck through are deleted. construction on public property and related to the delivery of cable services be commenced without the prior approval of the Public Works Administrator. Prior to the issuance of such approval, the franch~see shall submit to the Public Works Administrator: (a) Strand maps of the system authorized by the proposed franchise showing plant routing, utility company poles to which the system facilities are to be attached; and (b) True copies of all pole attachment agreements made by the franchi~ee with United Telephone Company and Florida Power and Light Company and any other utility or company to which an attachment is to be made. 17.7. County's Right To Inspect The County shall have and maintain the right to inspect the installation, construction, operation and maintenance of the system by the franchisee to insure the proper performance of the terms of this Ordinance. 17.8 Joint Or Common Use Of Poles (a) To enhance the public convenience and to minimize the placement of poles and wire holding structures within public ways, the franchisee shall enter into agreements for the joint or common use of poles or other wire holding structures where poles or other wire holding structures already exist for the use in serving the County or serving the public convenience. However, no location of any pole or wire holding structure of the franchisee shall be a vested interest, and such pole or structure shall be removed or modified by the franchisee at its own expense whenever the Public Works Administrator determines it to be necessary in conjunction with a County Project. (b) The County shall be permitted to make use of the poles or other wire holding structures of the franchisee, without charge or remuneration to the franchisee, if the Public Works Administrator determines that the use would enhance the public convenience and would not unduly damage, hamper or interfere with the franchisee's present and future operations. - 23 - Words under~ined are added; words s~ruck through are deleted. 17.9 Permits, Easements and Agreements The County shall not be required to assume any responsibility for the securing of any rights-of-way or easements,'nor shall the County be responsible for securing any permits or agreements with other persons or utilities. 17.10 Location/Relocation Of Facilities (a) Franchisee's system may be installed above ground in areas where existing power or telephone facilities are above ground, and shall be installed underground in areas where existing power and telephone facilities are installed underground. The franchisee shall endeavor to enter into agreements for the purpose of sharing poles with any person, firm or corporation now or hereafter authorized by license, franchise or otherwise to erect and maintain overhead or underground wires and cables, it being the intent hereof that all above-ground installations of CATV systems shall be accomplished on existing utility poles and easements where feasible, and installed only parallel to existing facilities. Where new poles are installed, prior approval of the Public Works Administrator as to location must be received. (b) Franchisee shall not place any fixtures or equipment where the same will interfere with any gas, electric, CATV, telephone, sewer, drainage or water lines, fixtures or equipment, and the location by franchisees of their lines and equipment shall be in such a manner as not to interfere with the usual travel on or proper use of said streets, the use of the same for the installation or operation of gas, electric, telephone, water, drainage, or sewer lines equipment, or the rights or reasonable convenience of owners of property which abuts any street. (c) Franchisees shall relocate any above-ground portion of their systems underground in any County easement or right-of-way area where existing power and telephone facilities are hereafter so relocated unless franchisee elects to purchase said poles owned by utility company or is permitted to remain on - 24 - Words underlined are added; words et-r~ack through are deleted. said poles pursuant to contractual pole attachment agreements. Any such relation shall be at their expense, and such relocation shall be accomplished concurrently with relocation of any such power and telephone facilities. (d) The franchisee shall have the authority to trim trees upon or overhanging streets, alleys, sidewalks and public ways and places of the County so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee, in a manner approved by and acceptable to the County. At the option of the County, such tri~uning may be done by it or under its supervision and direction at the expense of the franchisee, if prior notification has been given to the franchisee and franchisee thereafter failed to respond. (e) Franchisees shall promptly, upon the County's request and at their own expense, modify or relocate when necessary, any part of their systems to accommodate the abandonment of any street. (f) No location of any underground or above-ground facility or structure of any franchisee on public property shall be a vested interest, and such poles or structures shall be removed or modified by a franchisee at its own expense whenever the County determines that the public convenience would be enhanced thereby. 17.11. Safety (a) Franchisee's work performance, equipment and Job sites shall be in compliance with all applicable State and Federal requirements. A franchisee's work, while in progress, shall be properly protected at all times with suitable barricades, flags, lights, flares, or other devices as are required by the Manual on Uniform Traffic Control Devices (FDOT) to protect all members of the public having occasion to use the portion of the streets involved or adjacent property. (b) Franchisee shall at all times employ due care and shall install, maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to - 25 - Words underlined are added; words struck ~ ..... ~ are deleted cause damage, injuries or nuisances to the public. All structures and all lines, equipment and connections in, over, under and upon the streets of the County wherever situated or located shall at all times be kept and maintained in a safe, suitable, substantial condition, and in good order and repair. Franchises shall install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the National Electrical Safety Code promulgated by the National Bureau of Standards, the National Electrical Code of the American Insurance Ass6ciation, and the Bell System Code of Pole Line Construction. 17.12. Inspection And Performance Test (a) The County shall have the right to make Such inspections as it shall find necessary to insure compliance with terms of this franchise and other pertinent provisions of law. The County shall have the right to require the franchises to provide and keep accurate calibrated test equipment imx..ediately available for use in the County for the testing of all service and operation standards in this Ordinance and the franchises shall conduct such tests as requested by the County in order to establish the level of performance of the system. (b) The franchises shall furnish the County Manager with a written report of the results of franchisee's Annual System Proof of Performance Tests, as required by the FCC. The County may require additional tests as proof of performance should it have reasonable cause to believe that a franchisee's system is not providing quality service transmission to its subscribers. Franchises shall pay the costs incurred by the County for any technical assistance deemed necessary by the Count., for obtaining independent verification of technical compliance with all standards. Reports covering the following will be maintained and made available to the County Manager upon request: (1) Complaints, numbers, nature and corrective actions taken, as required by Section 30.2(d) herein. - 26 - Words underlined are added; words -~ .... "~ ..... ~ are deleted. (2) Progress of system expansion and number of subscribers. 17.13. Transfer Prohibited (a) A franchises shall not assign, sell or transfer its plant or system or any portion thereof, nor any right, title or interest in same, nor shall a franchisee transfer or assign any right under this Ordinance or under a franchise agreement to any other person without prior approval of the County, which approval shall not be unreasonably withheld, and only then upon such conditions as' the County deems necessary and proper. Prior approval of the County shall be required where ownership or control of more than thirty percent (30%) of the right of control of franchises is assigned to or acquired by a person or grou~ of persons acting in concert, none of whom already own or control thirty percent (30%) or more of such right of control, singularly or collectively. (b) Any transferee of a franchisee's plant or system or any portion thereof shall submit to the County information which is required of an initial applicant as found in Section 3.3(a), (b) and (c) herein and must agree to comply with all provisions of this Ordinance before the County may approve such transfer. SECTION FIVEs CONFLICT AND SEVERABILITY In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of this Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provisions and such holding shall not affect the validity of the remaining portion. SECTION SIX~ INCLUSION IN CODE OF LAWS AND ORDINANCES The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section", "article", or any other appropriate word. - 27 - Words underline4 are added; words e~ are deleted. SECTION SEVENz EFFECTIVE DATE This Ordinance shall become effective upon filing with the Secretary of State. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this c~ day of ~2/n .,~/ , XTTEST: .'.;.., BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCk, Clerk COLLIER COUNTY, FLORIDA Approved as to form and legal sufficiency: }i~idi' F1 Ashton ' Assistant County Attorney This ordinance flied ~l~'h Secretary o <, e' .~ ic ..~ - 28 - Words undeTlined are added; words e4ePuck through are deleted. STATE OF FLORIDA) COUNTY OF COLLIER) I, DWIGHT E. BROCK, Clerk of Courts in and for the Twentieth Judicial Circuit, Collier County, Florida, do hereby certify that the foregoing is a true copy of: ORDINANCE NO. 96-15 Which was adopted by the Board of County Commissioners on the 26th day of March, 1996, during Regular Session. WITNESS my hand and the official seal of the Board of County Commissioners of Collier County, Florida, this 29th day of March, 1996. ~C. 1 r DWIGHT E. BROCK . ~;.,~ ... : ~. ~o! ~ Clerk of Courts an, ~ · e'k ~-" '7. '..'~ '. '~'.' Ex-officio to BoarS'of.... .... -..'..'.; County CommissionS' "= '.' ,~'~'.= ~f~': ~ By: /s/Ellie Hoffman, 0U~'(~ Deputy Clerk