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ORDINANCE NO.  562

AN ORDINANCE REPEALING AND REPLACING CHAPTER 15 OF THE CODE OF THE TOWN OF OCEAN RIDGE AS IT PERTAINS TO CABLE TELEVISION FRANCHISES; PROVIDING PENALTIES FOR VIOLATION OF THE PROVISIONS HEREOF; PROVIDING INCLUSION IN THE CODE; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE.

THE COMISSION OF THE TOWN OF OCEAN RIDGE HEREBY ORDAINS:

SECTION 1.   That Chapter 15 of the Code of the Town of Ocean Ridge is hereby repealed and replaced as follows:

            Chapter 15.     CABLE COMMUNICATIONS

            Section 15-1.  Definitions

            For the purpose of this Ordinance and any Application made pursuant hereto, the following terms, phrases, words and their derivations shall have the meanings given herein.  When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number.  The words “shall” and “will” are mandatory, and “may” is permissive.  Words not otherwise defined herein or in any Franchise Agreement that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C.  § 521 et seq., and the Telecommunications Act of 1996, and as those Acts have and may hereinafter be amended (collectively the “Communications Act”), and, if not defined therein, their common and ordinary meaning.

            A.        “Activated Channel” means those channels engineered at the headend of a Cable System for the provision of services generally available to residential Subscribers of the Cable System, regardless of whether such services actually are provided, including any channel designated for public, educational, or governmental use.  Channels on which signals flow in the direction from the headend to the Subscriber are referred to as “downstream channels”.  Where the signal flows to the headend for re-distribution, it shall be referred to as an “upstream channel”.

            B.         “Access Channel” means any channel on a Cable System set aside without charge by the Franchisee for public, educational or local governmental use.

            C.        “Affiliate” means any person who owns or controls, is owned or controlled by, or is under common ownership or control with a Franchisee.

            D.        “Applicant” means any person submitting an Application as defined herein.

            E.         “Application” means any proposal, submission or request to (1) operate a Cable System or open video system within the Town; (2) construct and install a Cable System within the Town; (3) transfer a Franchise or control of the Franchisee; (4) renew a Franchise; (5) modify a Franchise; or (6) seek any other relief from the Town pursuant to this Ordinance, a Franchise Agreement, the Communications Act, or other applicable law.  An Application includes an Applicant's initial proposal, submission or request, as well as any and all subsequent written amendments or supplements to the proposal and relevant correspondence.

            F.         “Basic Cable Service” or Basic Service” means any Service Tier which includes the retransmission of local television broadcast signals, and public, educational, or governmental access channels.

            G.        “Communications Act” means the Communications Act of 1934, 47 U.S.C. § 151 et seq., as that Act has and may hereinafter be amended.

            H.        “Cable service” means (i) the one way transmission to Subscribers of video programming, or other programming service; and (ii) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming services.

            I.          “Cable System,” “Cable Television System,” or “System,” means any facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple Subscribers within the Town.  Such term does not include (a) a facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; (b) a facility that serves Subscribers without using any public right of way; (c) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. § 201 et seq., except that such facility will be considered a Cable System to the extent it is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on demand services; (d) an open video system that complies with Section 653 of the Telecommunications Act of 1996; or (e) any facilities of any electric utility used solely for operating its electric utility systems.  Subject to applicable law, the foregoing definition of “Cable System” shall not be deemed to circumscribe the valid authority of the Town to regulate the activities of any other communications system or provider of communications services.

            J.          “Control of a Franchisee or Applicant” means possession of the ability to direct or cause the direction of the management or policies of a Franchisee or Applicant, or the operation of a Franchisee’s system, either directly or indirectly, whether through operational control in whatever manner exercised or ownership of voting securities, by contract or understanding, or in any other manner.

            K.        “County” means Palm Beach County, Florida.

            L.         “Fair Market Value” means the price that a willing buyer would pay to a willing seller for a going concern but with no value allocated to the Franchise itself.

            M.        “FCC” means the Federal Communications Commission or any successor governmental entity thereto.

            N.        “Franchise” means the non-exclusive right granted by the Town to a Franchisee in a Franchise Agreement to construct, maintain and operate a Cable System under, on, and over Streets, roads and any other public ways, rights-of-way, or easements within all or specified areas of the Town.  The term does not include any license or permit that may be required by this Ordinance or other laws, ordinances or regulations of the Town for the privilege of transacting and carrying on a business within the Town or for disturbing or carrying out any work on any Street.

            O.        “Franchise Agreement” or “Franchise Acceptance” means a contract entered into in accordance with the provisions of this Ordinance between the Town and a Franchisee that sets forth the terms and conditions under which the Franchise will be exercised.

            P.         “Franchisee” means any person granted a Franchise pursuant to this Ordinance who has entered into a Franchise Agreement with the Town.

            Q.        “Gross Revenues”.   As of the effective date of this Ordinance, the provisions of this definition are preempted pursuant to the Communications Service Tax Ch. 202, Florida Statutes and will remain preempted until such time as applicable law changes.  Should applicable law change so as to allow the Town to calculate Franchise fees as a percentage of Gross Revenues, Gross Revenues shall mean, unless prohibited by applicable federal or state law, or as otherwise provided in a Franchise Agreement, all revenues recognized according to generally accepted accounting principles (GAAP) generated by the Franchisee from the operation of the Cable System to provide Cable Services in the Town.  Notwithstanding anything to the contrary contained in this subsection, Gross Revenues include, but are not limited to, fees charged Subscribers for Basic Service; fees charged Subscribers for any optional, premium, per-channel or per-program service; fees charged Subscribers for any tier of service other than Basic Service; installation, disconnection, reconnection and change-in-service fees; late fees; leased access fees; and shall include the following services to the extent such services are considered Title VI services according to applicable law: revenue from Cable Service converters, Cable Service remotes, or any other Cable Service equipment rentals; revenues from cable guides; revenues from leases of the Cable System; advertising revenues allocable to the Town based on a percentage of Subscribers in the Town divided by the Subscribers in the Cable System (such percentage shall then be multiplied by the total advertising revenue of the Cable System to determine the allocable Gross Revenue stemming from advertising); and revenues from home shopping channels or other sources allocable to the Town, provided that where certain home shopping channel or other such revenue is allocable to more than one franchise area due to common zip codes, the Franchisee shall allocate the percentage of revenue to the Town that is equivalent to the percentage of the Subscribers of the Town divided by the total Subscribers for the allocable franchises within the zip code.  Unless prohibited by applicable law, Gross Revenues shall be the basis for computing the Franchise fee imposed pursuant to Section 15-17 hereof.  Gross Revenues shall not include revenues received from programmers and used by Franchisee to market, promote or advertise a programming service; any revenue received by Franchisee for payment in connection with PEG Access or facilities as required by Section 15-16  hereof; any taxes or fees on services furnished by the Franchisee that are imposed upon any Subscriber or user by the state, Palm Beach County, Town or other governmental unit and collected by the Franchisee on behalf of such governmental unit and that the Franchisee passes on in full to the applicable authority.  However, it is hereby expressly provided that Franchise fees shall be included in the calculation of Gross Revenues.  Further, Franchise fees shall not be paid on Subscriber deposits unless and until such deposits are applied to a customer account for services rendered.

            S.         “Interconnection” means the electronic connection of two or more Cable Systems for the purpose of sharing Access Channel programming.

            T.         “Law” means all duly enacted and applicable federal, state, county and Town laws, ordinances, codes, rules, regulations and orders.

            U.        “Leased Access Channel” means a channel designated in accordance with Section 612 of the Communications Act, 47 U.S.C. § 532, for commercial use by persons unaffiliated with the Franchisee.

            V.        “Open Video System” A facility consisting of a set of transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple Subscribers within a community, provided that the FCC has certified that such a system complies with applicable FCC rules and regulations.

            W.       “Overbuild” means a Cable System constructed to serve Subscribers in an area of the Town actually served by an existing Cable System.

            X.        “Person” means any individual, corporation, partnership, association and any lawful trustee, successor, assignee, transferee or personal representative thereof, but shall not mean the Town unless applicable law so requires.

            Y.        “Service Tier” means a category of cable service provided by a Franchisee and for which a separate charge is made by the Franchisee.

            Z.         “Street or Streets” means the surface, the air space above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way or public place, including public utility easements dedicated for compatible uses, or any other property in which the Town holds any kind of property interest or over which the Town exercises any type of lawful control, and any temporary or permanent fixtures or improvements located thereon, as may be ordinarily necessary and pertinent to construct and operate a Cable System.

            BB.      “Subscriber” means any person who lawfully receives cable service delivered over the Cable System.   Any person who receives cable service but is not billed on an individual basis shall not be considered a subscriber for the purpose of rate notifications.

            CC.      “Subscriber Base” means the total number of residential and commercial Subscribers within the Town.  For purposes of calculating Subscribers under bulk contracts, the Franchisee shall count each individual unit served included as one Subscriber.  Franchisee may use any lawful and reasonable equivalency measures provided it uses such measures uniformly for all franchise areas served by the Cable System.

            DD.      “System malfunction” means any Cable System equipment, facility or signal failure or malfunction that results in the loss of satisfactory service on one or more channels to one or more Subscribers.  A System malfunction is major if it affects twenty-five (25) or more Subscribers, or a multiple dwelling unit consisting of more than 25 or more units.

            EE.       “Town” means the Town of Ocean Ridge as currently incorporated and as it may be expanded or concentrated.

            FF.       “Town Manager” means the chief administrative officer of the Town.

            GG.      “Transfer of a Franchise” means any transaction in which (1) an ownership or other interest in a Franchisee or its Cable System is transferred from one person or group of persons to another person or group of persons so that control of a Franchisee is transferred; or (2) the rights or obligations held by a Franchisee under a Franchise Agreement are transferred or assigned to another person, group of persons or business entity.  A transfer shall be considered pro-forma only when it involves a transfer is to a Person, group of people or business entity that is a wholly owned or wholly controlled affiliate or subsidiary of the Franchisee or Franchisee’s parent entity which wholly owns or wholly controls Franchisee and shall not result in a change in the ultimate parental control or ownership of the Franchisee. 

            HH.      “Video Channel or Channel” means a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel, including the associated audio signal, as television channel is defined by the FCC by regulation or otherwise.

            Section 15-2.               Grant of Authority; Franchise Required.

            A.        The Town may grant one or more nonexclusive Franchises in accordance with this Ordinance.

            B.         No person may operate or construct a Cable System over, on, or under public streets in the Town without a Franchise granted by the Town unless otherwise expressly authorized by law, and no person may be granted a Franchise without having entered into a Franchise Agreement with the Town pursuant to this Ordinance unless the Town is expressly prohibited by applicable law from exercising such authority.

            C.        Unless otherwise authorized by law, any Franchise granted pursuant to this Ordinance is solely for the provision of Cable Service.  Nothing herein shall (1) have the effect of authorizing, prohibiting or conditioning a Franchisee’s provision of other services as may be permitted by applicable federal or state law, or (2) waive any right of the Town, if any, to require a Franchise to obtain other authorizations, licenses, permits or registrations as the Town may require under applicable federal or state law.

            Section 15-3.               Franchise Characteristics.

            A.        A Franchise authorizes use of Town Streets for installing cables, wires, lines, optical fiber, underground conduit, ducts, conductors, amplifiers, vaults, and other facilities as necessary and pertinent to operate a Cable System within a specified area of the Town, but does not expressly or implicitly authorize the Franchisee to provide service to, or install cables, wires, lines, underground conduit, or any other equipment or facilities upon private property without owner consent (except for use of compatible easements pursuant to Section 621 of the Communications Act, 47 U.S.C. § 541(a)(2)), or to use publicly or privately owned conduits without a separate agreement with the owners.

            B.         A Franchise is nonexclusive, and will not expressly or implicitly preclude the issuance of other Franchises to operate Cable Systems within the Town, or affect the Town's right to authorize use of Town Streets to other persons to operate Cable Systems or for other purposes as it determines appropriate.

            C.        All privileges prescribed herein or by a Franchise shall be subordinate to any prior lawful occupancy of the streets and the Town reserves the right to reasonably designate where a Franchisee's facilities are to be placed within the Streets.  Such designation may include, but not be limited to, consideration of the availability of the space in the rights of way.

            D.        No transfer of a Franchise shall occur without the prior written consent of the Town and unless Application is made by the Franchisee and Town approval obtained pursuant to this Ordinance and applicable Federal law.

            E.         A Franchise granted, renewed or transferred pursuant to an Application submitted pursuant this Ordinance to construct, operate and maintain a cable television system within the Town shall be deemed to constitute both a right and an obligation on the part of the Franchisee to provide the services and facilities of a cable television system as required by the provisions of this Ordinance and the Franchise.  The Franchise Agreement shall constitute all of the terms and conditions of the Franchise that are finally negotiated and agreed upon by the Town and Franchisee. 

            F.         Notwithstanding anything to the contrary, in the event that Franchisee, its parent, Affiliate or subsidiary elects to offer to Subscribers video programming services through any means or method not included within the definition of a Cable System, including but not limited to an Open Video System, Franchisee shall remain subject to all terms and conditions of the cable television Franchise granted by the Town pursuant to this Ordinance.

            Section 15-4.               Subject to Other Laws, Police Power. 

            A.        Any person operating a Cable System in the Town shall, at all times, be subject to and shall comply with all applicable Federal, state, county and local laws, rules and regulations, and shall at all times be subject to all lawful exercise of the police power of the Town, the eminent domain power of the Town and any other powers granted by the Constitution of the State of Florida.

            B.         Subject to applicable law, except as may be specifically provided in this Ordinance or under the terms of a Franchise Agreement and subject to the Communications Act, the failure of the Town, upon one or more occasions, to exercise a right or to require compliance or performance under this Ordinance or a Franchise granted by the Town shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance.

            Section 15-5.               Interpretation of Franchise Terms.

            A.        The provisions of this Ordinance shall apply to all cable Franchises.

            B.         The provisions of a Franchise Agreement shall prevail over conflicting or inconsistent provisions in this Ordinance. 

            C.        Except as to matters which are governed by federal law or regulation, a Franchise Agreement will be governed by and construed in accordance with the laws of the State of Florida.

            Section 15-6.               Applications for Grant, Renewal, Modification or Transfer of Franchise.

            A.        A written Application shall be filed with the Town for (a) grant of a new Franchise; (b) renewal of a Franchise in accordance with Section 626 of the Communications Act, 47 U.S.C. 546, as the same may be amended from time to time; (c) modification of a Franchise Agreement; (d) transfer of a Franchise; or (e) any other relief from the Town pursuant to this Ordinance or a Franchise Agreement.

            B.         Subject to applicable law, to be acceptable for filing, a signed original of the completed Application shall be submitted together with five (5) copies, and the required non-refundable Application filing fee in the amount specified in Subsection J hereof.  The purpose of the filing fee is to defray a portion of the Town's cost in processing an Application.  The filing fee is therefore intended to be a charge incidental to the awarding or enforcing of a Franchise within the meaning of Section 622(g)(2) (D) of the Communications Act, 47 U.S.C. § 542(g)(2)(D), and may not be deducted from the Franchise fee imposed by this Ordinance and in a Franchise granted hereunder.  All Applications shall include the names and addresses of persons authorized to act on behalf of the Applicant with respect to the Application. 

            C.        All Applications accepted for filing shall be made available by the Town for public inspection.  Where said Application contains information designated in writing by the Applicant as proprietary, the Town shall not make such information available to the public to the extent it is permitted to keep the information confidential pursuant to applicable law.

            D.        An Application for the grant of a Franchise shall be submitted by any person desirous of operating a Cable System or an Open Video System in the Town, notwithstanding whether any such person is operating a system pursuant to a County license or Franchise on the effective date hereof.

            E.         An Application for the grant of a new Franchise may be filed pursuant to a request for proposals issued by the Town or on an unsolicited basis.  The Town, upon receipt of an unsolicited Application, may in its sole and absolute discretion issue a request for proposals.  If the Town elects to issue a request for proposals upon receipt of an unsolicited Application, the Applicant may submit an amended Application in response to the request for proposals, or may inform the Town that its unsolicited Application should be considered in response to the request for proposals, or may withdraw its unsolicited Application.  An Application which does not conform to the reasonable requirements of a request for proposals may be considered non-responsive and denied on that basis.

            F.         An Application for the grant of an initial Franchise, a renewal, a transfer or change of control shall contain, at minimum, the following information unless expressly waived by the Town:

                        1.         Name and address of the Applicant and identification of the ownership and control of the Applicant, including:  the names and addresses of all persons with ten percent (10%) or more ownership interest in the Applicant, including the names and addresses of parents or subsidiaries holding such ownership interests directly or indirectly; the persons who control the Applicant; all officers and directors of the Applicant; and any other Cable System ownership interest of each named person;

                        2.         An indication of whether the Applicant, or any person controlling the Applicant, or any officer, or director or person with ten percent (10%) or more ownership interest in the Applicant, has been adjudged bankrupt, had a cable Franchise or license revoked, or been found by any court or administrative agency to have violated a security or antitrust law, or to have committed a felony, and, if so, identification of any such person and a full explanation of the circumstances;

                        3.         A demonstration of the Applicant’s technical, legal and financial ability to construct and operate the proposed Cable System, including identification of key personnel responsible for the proposed Cable System;

                        4.         An Applicant shall certify that it shall obtain all required Federal, state, county and Town licenses, permits and registrations in regard to any part of the Applicant’s facilities located in the Town.

                        5.         A certified statement prepared by a certified public accountant or duly authorized financial officer of the Applicant regarding the Applicant’s financial ability to complete the construction of and to operate the Cable System proposed;

                        6.         A description of the Applicant’s prior experience in Cable System ownership, construction and operation, and identification of communities in which the Applicant or any person controlling the Applicant or having more than a ten percent (10%) ownership interest in the Applicant has or has had, a Franchise or license or any interest therein;

                        7.         A description of any and all pending Federal and State litigation, that materially relates to the operation of a cable television system in the Town;

                        8.         If the application is for an initial franchise, identification of the area of the Town to be served by the proposed Cable System, including a description of the service area’s boundaries and all locations identified with specificity where service is not be available;

                        9.         A description of the physical facilities proposed, including channel capacity, performance characteristics, headend, and access facilities;

                        10.       Where applicable, a description of the construction of the proposed system, including an estimate of plant mileage and its location, the proposed construction schedule, a description, where appropriate, of how services will be converted from existing facilities to new facilities, and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities;

                        11.       If Applicant is currently operating a Cable System within the Town, a description of the existing System and capacity and the operator’s plans to upgrade the system.

                        12.       If Applicant or Applicant’s parent, or any subsidiary or Affiliate of Applicant is currently operating a Satellite Master Antenna Television System or Open Video System within the Town, a list of all such locations;

                        13.       A demonstration of how the Applicant’s proposal will reasonably meet the future cable-related needs and interests of the community, including a description of how the proposal will meet the needs described in any recent community needs assessment conducted by or for the Town;

                        14.       If an Applicant proposed to provide cable service to an area already served by an existing Cable Operator, Open Video System or Satellite Master Antenna Television System, the identification of the area where the overbuild would occur, the potential Subscriber density in the area which would encompass the Overbuild, and the ability of the Streets to accommodate an additional system;

                        15.       A Public Entity Crime Affidavit prepared in accordance with Section 287.133, Florida Statutes. 

                        16.       Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this Ordinance and information that the Town may request of the Applicant that is relevant to the Town’s consideration of the Application; and

                        17.       An affidavit or declaration of the Applicant or authorized officer certifying the truth and accuracy of the information in the Application, acknowledging the enforceability of Application commitments, and certifying that the proposal meets all Federal and state law requirements.

            G.        An Application for modification of a Franchise Agreement shall include, at minimum, the following information:

                        1.         The specific modification requested;

                        2.         The justification for the requested modification, including the impact of the requested modification on Subscribers and others, and the financial impact on the Applicant if the modification is approved or disapproved;

                        3.         A statement whether the modification is sought pursuant to Section 625 of the Communications Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545.

                        4.         Any other reasonable information necessary for the Town to make an informed determination on the Application for modification; and

                        5.         An affidavit or declaration of the Applicant or authorized officer certifying the truth and accuracy of the information in the Application, and certifying that the Application is consistent with all Federal and state law requirements.

            H.        An Application for renewal of a Franchise shall comply with the requirements of Section 15-19 hereof.             

            I.          An Application for approval of a transfer of a Franchise shall comply with the requirements of Section 15-20 hereof.

            J.          Unless prohibited by applicable law, to be acceptable for filing, an Application shall be accompanied by a non-refundable filing fee in the following amount, as appropriate:

                        1)         For a new or initial Franchise:                $20,000

                        2)         For renewal of a Franchise:                               $15,000

                        3)         For a transfer of a Franchise (other than

                                    a pro forma transfer):                                        $5,000

                        4)         For a pro forma transfer of a Franchise: $1,000

                        5)         For modification of a Franchise

                                    agreement pursuant to 47 U.S.C.§545: $1,000

            The purpose of the filing fee is to defray a portion of the Town’s cost in processing an Application.  The filing fee is therefore intended to be a charge incidental to the awarding or enforcing of a Franchise within the meaning of Section 622(g)(2)(D) of the Communications Act, 47 U.S.C. § 542(g)(2)(D), and may not be deducted from the Franchise fee imposed in a Franchise Agreement or any regulatory fee or tax imposed by applicable federal, state or county law.

            Section 15-7.               Grant of Franchise.

            A.        In evaluating an Application for a Franchise, the Town shall consider among other things the following factors:

                        1.         The economic impact upon private property within the Franchise area;

                        2.         Public need for such Franchise, if any;

                        3.         The capacity of public rights of way to accommodate the Cable System;

                        4.         The present and future use of the public’s rights of way to be used by the Cable System;

                        5.         The potential disruption to existing users of the public’s rights of way to be used by the Cable System and the resulting inconvenience which may occur to the public;

                        6.         The legal, technical and financial ability of the Franchise Applicant to perform;

                        7.         Other societal interests as are generally considered in cable television franchising; and

                        8.         Such other additional matters, both procedural and substantive, as the Town may in its sole and absolute discretion determine to be relevant, including but not limited to the extent to which the proposal of the Applicant will meet the anticipated cable related needs and interests of the community and serve the public interest.  Evaluation by the Town shall not be based on the content of the programming the Applicant proposes to provide.

            B.         The Town may grant a Franchise for a period not to exceed twelve (12) years. 

            C.        Following at least ten (10) days notice to the Applicant, the Town shall hold a public hearing to consider an Application or Applications.  The Applicant(s) shall be notified of the hearing and shall be given an opportunity to be heard.  Based upon the Application(s), the testimony presented at the public hearing, any recommendations of the Town Manager or staff, and any other information relevant to the Application(s), the Town shall decide by Resolution whether to grant or deny a Franchise Application(s) and decide the terms and conditions of any Franchise(s) granted. 

            D.        If the Town grants a Franchise, the Franchisee shall file an acceptance of the Franchise accompanied by any and all payments due no later than the date of the Resolution granting the Franchise.  Any and all bonds, certificates of insurance or other obligations as required in a Franchise Agreement shall be filed within fifteen (15) calendar days from the date of the Town Resolution approving the Franchise Agreement.  This period may be extended for good cause by the Town.  If said obligations are not filed with the Town within fifteen (15) calendar days from the date of the Town Resolution, or if the period is not extended by the Town, the Franchise grant will be null and void without further action by the Town.  The Town may, at its option, grant Franchisee a short-term extension(s).  The grant of such a short term extension(s) will not confer on Franchisee the right to an automatic acceptance, transfer, modification or renewal or any other right not expressly incorporated as a term of the extension.

            E.         Subject to applicable law, the grant, renewal, modification, or transfer of a Franchise may be subject to a processing fee in an amount not to exceed the reasonable and justifiable out-of-pocket costs incurred by the Town in considering the Application, including but not limited to consulting, advertising and legal costs and fees, less the amount of the filing fee set pursuant to Section 15-5(J).  Five Days prior to the date of the Commission Meeting at which the Resolution approving or denying the Franchise Agreement is scheduled to be considered, the Town shall notify the Franchisee of the estimated amount of any processing fee and its method of calculation.  This processing fee is intended to be a charge incidental to the awarding or enforcing of a Franchise within the meaning of Section 622 (g)(2)(D) of the Cable Act, 47 U.S.C. § 542 (g)(2)(D), and may not be deducted from any Franchise fee or tax and shall not be passed through to Subscribers.

            Section 15-8.               Insurance; Surety; Indemnification.

            A.        A Franchisee shall maintain, and by its acceptance of the Franchise specifically agrees that it will maintain, throughout the entire term of the Franchise including any renewals thereof, the following liability insurance coverage insuring the Town to the extent applicable and the Franchisee:  worker’s compensation and employer liability insurance to meet all requirements of Florida law and commercial general liability insurance with contractual coverage with respect to the construction, operation and maintenance of the Cable System, and the conduct of Franchisee’s business in the Town, in the minimum amounts of $1,000,000 per occurrence, for bodily injury or death, broad form property damage liability, and insurance to cover infringement of copyrights.               

            B.         All insurance policies shall be with insurance companies authorized   to do business in the State of Florida and such companies shall have a minimum Best’s rating of A-1, or an equivalent rating.  The Town may require coverage and amounts in excess of the above minimums where necessary to reflect changing liability exposure and limits or where required by law.

            C.        A Franchisee shall keep on file with the Town certificates of insurance evidencing that the Town, its Commission members, officers, boards, agents and employees are listed as additional insureds on the general liability policy.  In the event of a potential claim such that the Town claims insurance coverage, Franchisee shall immediately respond to all reasonable requests by the Town for information with respect to the scope of the insurance coverage.

            D.        All general liability insurance policies shall name the Town, as an additional insured and shall further provide that any cancellation or reduction in coverage shall not be effective unless thirty (30) days prior written notice thereof has been given to the Town.  A Franchisee shall not cancel any required insurance policy without submission of proof that the Franchisee has obtained alternative insurance satisfactory to the Town which complies with this Ordinance.

            E.         A Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the Town, 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 willful or negligent acts or omissions of the Franchisee or its officers, agents, employees or contractors relating to construction, maintenance or operation of its Cable System, and the conduct of Franchisee's business in the Town; provided, however, that Franchisee's obligation hereunder shall not extend to any claims caused by the willful misconduct or negligence of the Town, its officials, boards, commissioners, agents or employees, or to claims arising from Franchisee’s provision of Access Channels for public, educational and/or governmental use pursuant to a Franchise granted hereunder, to the extent such claims relate to programming and content on such channels, over which Franchisee has no editorial control nor exercises administrative control.  This provision includes, but is not limited to, the Town’s reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings, and claims arising out of copyright infringement or a failure by the Franchisee to secure consents from the owners, authorized distributors, or providers of programs to be delivered by the Cable System, claims arising out of Section 638 of the Communications Act, 47 U.S.C. 558, 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 copyright, trade mark, trade name, service mark or patent, or of any other right of any Person, firm or corporation.  If any such claim arises, the Franchisee shall have the obligation and duty to defend the Town and any other indemnified party hereunder; provided, however, Franchisee may not agree to any settlement of claims affecting the Town without the Town’s approval and if the Town so chooses with the advise and counsel of the Town Attorney.  If the Town Attorney finds that separate representation to fully protect the interests of the Town is necessary, Franchisee shall consult with the Town on counsel that is acceptable to the Town.  If Franchisee is unwilling or unable to select counsel acceptable to the Town, whose acceptance shall only be withheld for good cause shown, Franchisee shall pay all actual and reasonable expenses incurred by the Town in defending itself with regard to any action, suit or proceeding subject to this indemnification.  The Town’s expenses shall include all out of pocket expenses, attorney’s fees and costs of the Town attorney or assistants, or any Town employees, outside attorneys or other agents.  Notwithstanding the foregoing, Franchisee shall not be required to indemnify the Town pursuant to this Ordinance or a Franchise Agreement for actions relating to public, government and education access programming decisions outside of Franchisee’s control or for the Town’s use of the Cable System or the use of public, government and education Access Channels, facilities or funding.

            Section 15-9.               Security Fund/Corporate Guarantee.

            A.        As of the effective date of a Franchise, the Franchisee shall post with the Town a cash security deposit or in the alternative at the Town’s discretion a bond or letter of credit, in the amount of Twenty-Five Thousand Dollars ($25,000) in a form acceptable to the Town to be used as a security fund to ensure the Franchisee’s faithful performance of and compliance with all provisions of this Ordinance, the Franchise Agreement, and other applicable law, and compliance with all orders, permits and directions of the Town, and the payment by the Franchisee of any claims, liens, fees, or taxes due the Town which arise by reason of the construction, operation or maintenance of the system. 

            B.         Any bond or letter of credit shall be obtained at the sole expense of the Franchisee and shall be renewed for the full term of the Franchise plus an additional six (6) months thereafter.  The Franchisee and its surety shall be jointly and severally liable under the terms of the bond or letter of credit for any damages or loss suffered by the Town as a result of the Franchisee’s nonperformance, including the full amount of any compensation, indemnification or cost of removal of any property of the Franchisee in the event of default, a reasonable allowance for attorneys’ fees including, but not limited to all trial and appellate work and costs, up to the full amount of the bond or letter of credit.  The bond or letter of credit shall provide for thirty (30) days’ prior written notice to the Town of any intention on the part of the Franchisee to cancel, fail to renew, or otherwise materially alter its terms.  Neither the filing of an indemnity bond or letter of credit with the Town, nor the receipt of any damages recovered by the Town thereunder, shall be construed to excuse faithful performance by the Franchisee or limit the liability of the Franchisee under the terms of this Ordinance or its Franchise for damages, either to the full amount of the bond or otherwise.

            C.        The form and conditions of the bonds and the surety shall be acceptable and satisfactory to the Town and surety shall be a nationally recognized surety company acceptable to the Town, listed on the current list of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and Acceptable Reinsuring Companies” as published in circular 570 (amended) by the Audit Staff, Bureau of Government Financial Operations, U.S. Treasury Department, all bonds shall be placed with sureties with a Best Rating of no less than A-VII. Bonds shall be executed and issued by a resident agent, licensed and having an office in Palm Beach, Dade, Broward or Martin Counties, Florida, representing such corporate sureties. If the franchisee is a partnership, the bond should be signed by each of the individuals who are partners; if a corporation, the bond should be signed in the correct corporate name by duly authorized officer, agent or attorney-in-fact. There should be executed an appropriate number of counterparts of the bond corresponding to the number of counterparts in the franchise.

            D.        The rights reserved to the Town with respect to the security fund or an indemnity bond or letter of credit are in addition to all other rights of the Town, whether reserved by this Ordinance or authorized by other law or the Franchise Agreement, and no action, proceeding or exercise of a right with respect to such security fund or indemnity bond or letter of credit will affect any other right the Town may have.

            Section 15-10.             Construction Bond.

            A.        Prior to any Cable System construction, upgrade, rebuild or other significant work in the Streets a Franchisee shall establish in the Town’s favor a construction bond in an amount equal to the lesser of One Hundred Fifty Thousand dollars ($150,000) or fifty percent (50%) of the value of the construction as necessary to ensure the Franchisee’s faithful performance of the construction, upgrade, rebuild or other work.

            B.         In the event a Franchisee subject to such a construction bond fails to complete the Cable System construction, upgrade or other work in the Streets in a safe, timely and competent manner in accord with the provisions of the Franchise Agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the Town as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Franchisee, or the cost of completing or repairing the system construction, upgrade or other work in the Streets, plus a reasonable allowance for attorneys’ fees, up to the full amount of the bond.  The Town may also recover against the bond any amount recoverable against the security fund pursuant to Section 15-8 hereof where such amount exceeds that available under the security fund.

            C.        Within six (6) months after completion of the system construction, upgrade, rebuild or other work in the Streets and payment of all construction obligations of the Cable System to the satisfaction of the Town, the Town shall eliminate the bond or reduce its amount.  However, the Town may subsequently require an increase in the bond amount for any subsequent construction, upgrade, rebuild or other work in the Streets.

            D.        The form and conditions of the bonds and the surety shall be acceptable and satisfactory to the Town and surety shall be a nationally recognized surety company acceptable to the Town, listed on the current list of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and Acceptable Reinsuring Companies” as published in circular 570 (amended) by the Audit Staff, Bureau of Government Financial Operations, U.S. Treasury Department, all bonds shall be placed with sureties with a Best Rating of no less than A-VII. Bonds shall be executed and issued by a resident agent, licensed and having an office in Palm Beach, Dade, Broward or Martin Counties, Florida, representing such corporate sureties. If the franchisee is a partnership, the bond should be signed by each of the individuals who are partners; if a corporation, the bond should be signed in the correct corporate name by duly authorized officer, agent or attorney-in-fact. There should be executed an appropriate number of counterparts of the bond corresponding to the number of counterparts in the franchise.

            E.         The rights reserved by the Town with respect to any construction bond established pursuant to this Section are in addition to all other rights and remedies the Town may have under this Ordinance, a Franchise Agreement, or at law or equity.

            Section 15-11.             Minimum Facilities and Services.

            A.        The following minimum requirements for facilities and services shall apply to all Franchises granted by the Town.  The Town may require in a Franchise Agreement or renewal that a Franchisee exceed these minimum requirements where it determines, under circumstances existing at the time of the Application, that the additional requirements are reasonable to meet the Town’s future cable related needs and interests or to serve the public interest.  Notwithstanding anything to the contrary, a Franchisee shall make available services, products, and a level of technology to all Subscribers in the Town no less than that offered by the Franchisee, its parent, Affiliate, or subsidiary to any community in Palm Beach County, Florida within six months of such service, product, or technology becoming available.

                        1.         Any Cable System granted a Franchise, a renewal or a transfer of a Franchise, including but not limited to initial construction, rebuild, upgrade or reconstruction after the effective date of this Ordinance shall have a minimum capacity of at least 750 MHZ.

                        2.         A Franchisee shall provide Access Channels, facilities and other support for public, educational and governmental use as required under this Section 15-10 and Section 15-12 herein.

                        3.         A Franchisee shall provide Leased Access Channels as required by Federal law.

                        4.         A Franchisee shall provide cable service, without charge, to the Town buildings as agreed on the effective date of a Franchise Agreement, and to all facilities of the Town that may be constructed or opened within the Town or annexed areas during the term of a Franchise Agreement, where Franchisee’s plant is the closest Town Franchised Cable Operator to a specified facility.  Such service shall include the basic and expanded basic cable Service Tier. 

                        5.         Should any public schools grades K-12 (as defined in Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §21a et seq., as amended) be opened within the Town during the term of a franchise agreement, upon request a Franchisee shall, at minimum, provide without charge,  one cable drop per location (including installation) and the basic and expanded basic tiers that are located within one hundred twenty-five (125) feet of Franchisee’s coaxial distribution plant, whether now in existence or constructed during the term of this Agreement.  Service extensions beyond 125 feet shall be at the respective school’s expense based upon Franchisee’s actual costs.

                        6.         Franchisee has established a voluntary initiative to provide, upon request, cable internet service to all State accredited K-12 schools within the Town which receive Cable Service.  Franchisee intends to provide each of such schools with one outlet of unlimited Internet access, including the necessary cable modem.

                        7.         Nothing herein shall preclude Franchisee from providing benefits to schools or municipal facilities which exceed those provided herein.

                        8.         Franchisee shall provide cable modem service without charge to the Town Hall located at 6450 N Ocean Boulevard, Ocean Ridge, Florida.

                        9.         A Franchisee shall comply with state and federal emergency alert requirements.

                        10.       Franchisee shall comply fully with all applicable laws concerning handicapped or disabled persons.

                        11.       Standard installation shall consist of a drop, not exceeding one hundred twenty five (125) feet from the cable plant to the nearest part of a Subscriber’s residence.  Residential drops in excess of one hundred twenty five (125) feet may be charged according to the Franchisee’s rate schedule.

            B.         The Town may require a Franchisee to make cable service available to every dwelling and every building within the Franchise service area or the Franchisee’s designated service area as defined in a Franchise Agreement, unless prohibited by a private property owner from doing so.

            C.        Consistent with applicable federal and state law including, but not limited to, rules and regulations of the FCC and PSC, a Franchisee shall make service available to persons requesting  service in multi-tenant structures or, in the alternative allow Subscribers to discontinue service and exercise their lawful interest over equipment and wiring.

            D.        Applications for an initial or renewed Franchise or an Application to transfer a Franchise shall include a proposal for the interconnection of Franchisee’s system to any or all other Cable Systems operating within the Town and any Cable Systems operating in an adjacent community within Palm Beach County carrying county and state government or education programming.

            Section 15-12.             Technical Standards.

            A.        Any Cable System within the Town shall at minimum meet the technical standards of the FCC or other applicable Federal or state technical standards, including any such standards as hereinafter may be amended or adopted.  Antennas, supporting structures, and outside plants used in the system shall be designed to comply with all generally accepted industry practices and standards and with all Federal, state, county, and Town laws, ordinances, rules and regulations.

            B.         All construction, installation and maintenance shall comply with the National Electrical Safety Code, the National Electric Code, the Florida Building Code and all laws and accepted industry practices, and as hereinafter may be amended or changed.

            C.        As required by FCC rules, the Franchisee shall perform at its expense proof of performance tests designed to demonstrate compliance with FCC requirements.  A Franchisee shall provide, upon written request, the proof of performance test results to the Town within ten (10) days after completion.  The Town shall have the right to inspect the Cable System facilities to ensure compliance with the requirements of the Franchise Agreement, this Ordinance and FCC standards.

            D.        The Town may require any other tests as required by applicable law or regulation, to be performed at the expense of the Franchisee.  The Franchisee shall provide the test results to the Town within ten (10) days of completion of such tests.

            E.         The Franchisee shall provide the Town ten (10) days advance written notice when a proof of performance or other test required by Subsections C and D above is scheduled so that the Town may have an observer present.

            F.         A Franchisee shall not design, install or operate its facilities in a manner that will interfere with the signals of any broadcast station, the facilities of any public utility, the Cable System of another Franchisee, or individual or master antennas used for receiving television or other broadcast signals.

            G.        A Franchisee shall maintain the Cable System serving the Town at that level of technology to satisfy the state of the art as defined in Section 15-1 BB herein.

            Section 15-13.             Public, Education and Government Support.   

            A.        A Franchisee shall provide upon six month prior written notice by the Town one (1) Access Channel on the basic Service Tier for the exclusive use of the Town to be designated as the Town’s government Access Channel.

            B.         To the extent that Franchisee makes available to all Subscribers in Palm Beach County the County’s government and education channels, Franchisee will also make those channels available to Subscribers in the Town, provided however, that if the Town requests an Access Channel pursuant to subsection (A) above, one of the County’s channels may be preempted by the Franchisee in order to accommodate the Town’s Access  Channel.

            C.        A Franchisee shall provide such equipment, facilities, technical and capital support as the Town Commission has determined is useful for the production and cablecasting of programming on the government channels as set forth in a Franchise Agreement. 

            D.        A Franchise may provide for a financial grant in lieu of or in addition to some or all of the facilities, equipment, and services referenced in this Section 15-12 as set forth in the Franchise Agreement.

            E.         A Franchisee shall agree that the facilities, equipment, monetary grant, and all other support to be provided by Franchisee pursuant to this Section 15-12 constitute capital costs which are required by the Franchise to be incurred by Franchisee for public, educational, or government access facilities within the meaning of Section 622(g)(2)(C) of the Cable Act, 47 U.S.C. § 542(g)(2)(C); that such grant does not constitute a Franchise fee or tax within the meaning of Cable Act, state law, county law, this Ordinance or any Franchise Agreement.

            Section 15-14.             Franchise Fee.

            A.        As of the effective date hereof, The Florida Communications Services Tax Act, Ch. 202 FL Stat., preempts this Section 15-14.  However, if the Florida Communications Services Tax Law is amended or repealed so that a local franchising authority is allowed to impose and collect Franchise fees then as of the effective date of any such statutory amendment or repeal, this Section of the Ordinance will become effective as of the earliest date stated in said amendment or repeal of the Florida Communications Services Tax Law.  Unless otherwise provided by law, Franchisee shall collect and remit Franchise fees for the entire period following the effective date of the aforementioned change in law and retroactively to the extent permitted by such law, even if some collection and payment must be done in arrears to allow for changes to the billing process.  The intent of this Section is to ensure the Town is not deprived of any fees to which it would otherwise be entitled following the change in state law.

            B.         A Franchisee, as compensation for the privilege of the use of the Town's Streets to construct or operate a Cable System, shall pay to the Town a Franchise fee in an amount up to a maximum of five percent (5%) of the Franchisee’s Gross Revenues derived directly or indirectly from the operation of its Cable System within the Town.

            C.        A Franchisee shall pay the Franchise fee due to the Town on a quarterly basis.  Payment for each month shall be made to the Town not later than twenty (20) calendar days after the end of last calendar month of each calendar quarter.

            D.        A Franchisee shall file with the Town, on a quarterly basis, a financial statement setting forth the computation of gross revenues used to calculate the Franchise fee for each of the three months of the preceding quarter and a detailed explanation of the method of computation.  The statement shall be certified by a certified public accountant or the Franchisee’s chief financial or other duly authorized officer.  The Franchisee will bear the cost of the preparation of such financial statements.

            E.         Subject to applicable law, no acceptance by the Town of any Franchise fee payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the Town may have for additional sums payable.    

            F.         The Franchise fee payment is not a payment in lieu of any other tax, fee or assessment due to the Town or any other governmental entity.

            G.        The Town may, from time to time, but not more frequently than once per year, and upon reasonable notice, inspect, copy and audit any and all books and records of the Franchisee relevant to the determination of gross revenues and the computation of Franchise fees due, and may re-compute any amounts determined to be payable under the Franchise.  The cost of the audit will be borne by the Franchisee if, as a result of the audit, the Town determines that the Franchisee has underpaid the Franchise fees owed to the Town.  A Franchisee shall make all books and records necessary to satisfactorily perform the audit readily available to the auditors in Palm Beach County, for inspection and copying or in the alternative, Franchisee shall pay all costs incurred by the Town for performance of the audit or any part thereof at a location outside of Palm Beach County.  The Town’s right to audit shall survive termination of the Franchise for a period of five (5) years from the date the Franchisee ceases operation in the Town.

            H.        In the event that a Franchise fee payment is not received by the Town on or before the due date set forth in Subsection B above, or is underpaid, the Franchisee will pay a late charge equal to the lesser of eighteen (18%) percent or the highest percentage allowed by law annually of the amount of the unpaid Franchise fee payment.  Such late charge shall not constitute a Franchise fee or tax within the meaning of the Cable Act, state law, this Ordinance or a Franchise Agreement.

            I.          When a Franchise terminates for any reason, the Franchisee shall file with the Town within ninety (90) calendar days of the date its operations in the Town cease a financial statement, certified by a certified public accountant or the Franchisee’s chief financial officer, showing the gross revenues received by the Franchisee since the end of the previous quarterly payment.  Adjustments will be made at that time for Franchise fees plus any late fees and interest due to the date that the Franchisee’s operations ceased.

            Section 15-15.             Customer Service Requirements.

            A.        A Franchisee shall maintain all parts of its Cable System in good condition and in accordance with standards generally observed by the cable television industry.  Sufficient employees shall be retained to provide safe, adequate, and prompt service for all of its Subscribers and facilities.

            B.         Cable System Office.  A Franchisee shall maintain a Subscriber service center located within ten (10) miles of the Town, which shall include a place where Subscribers may pay their bills, pick up and return converters or other equipment and initiate installations or other action with respect to Cable Service.  This service office shall be open during Normal Business Hours, as defined below, which as of the effective date of this Ordinance, are from 8:00 a.m. to 5:30 p.m., Monday through Friday, and 9:00 a.m. to 1:00 p.m. on Saturday.

            C.        Telephone Availability.  Franchisee shall maintain a publicly-listed local, toll-free telephone number and employ a sufficient number of telephone lines, knowledgeable personnel and answering equipment to allow reasonable access by Subscribers and members of the public to contact the Franchisee on a full-time basis, twenty-four (24) hours per day, seven (7) days per week including holidays.  Knowledgeable, qualified Franchisee representatives will be available to respond to Subscriber telephone inquiries.   Franchisee shall comply with the telephone answer time standards set forth in Subsection D below.

            D.        Franchisee shall answer all Subscriber service and repair telephone calls made under Normal Operating Conditions, as defined below, within thirty (30) seconds, including wait time and within an additional thirty (30) seconds to transfer the call.  Under Normal Operating Conditions, Subscribers shall receive a busy signal less than three (3) percent of the time.  These standards shall be met no less than ninety (90) percent of the time under Normal Operating Conditions, measured on a quarterly basis.

            E.         Franchisee must meet each of the following standards no less than ninety-five (95) percent of the time under Normal Operating Conditions as measured on a quarterly basis:

                        1.         Standard installation work shall be performed within seven (7) business days after an order has been placed except in those instances where a Subscriber specifically requests an installation date beyond the seven (7) business  day period.  “Standard” installations are up to one hundred and twenty-five (125) feet from the existing distribution System.  If scheduled installation is neither started nor completed as scheduled, the Subscriber will be telephoned by an employee of the Franchisee the same day.  If the call to the Subscriber is not answered, an employee of the Franchisee shall telephone the Subscriber the next day;

                        2.         Excluding conditions beyond the control of the Franchisee, the Franchisee will respond to service interruptions promptly and in no event later than twenty-four (24) hours after the interruption becomes known.  Other service problems will be responded to promptly and in no event later than forty-eight (48) hours after the problem becomes known.  All service interruptions and service problems within the control of Franchisee will be corrected within seventy-two (72) hours after receipt of a complaint;

                        3.         The appointment window alternatives made available for installations, service calls, repairs, and other installation activities will be either a specific time, a four-hour time block during Normal Business Hours, or at the election and discretion of the Subscriber, “all day;”

                        4.         Franchisee may not cancel an appointment with a Subscriber after the close of business on the business day prior to the scheduled appointment; and

                        5.         If, at any time, an installer or technician is running more than 30 minutes late for a scheduled appointment, an attempt to contact the Subscriber will be made and the appointment rescheduled as necessary at a time which is convenient for the Subscriber.

            F.         For purposes of this Section 15.15, the term “Normal Business Hours” shall mean those hours during which most similar businesses in the County are open to serve Subscribers.  The term “Normal Operating Conditions” means those service conditions which are within the control of the Franchisee, or as otherwise defined by the FCC.  Those conditions which are not within the control of the Franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions.  Those conditions which are ordinarily within the control of the Franchisee shall include, but are not limited to, special promotions, pay-per-view events, rate increase, regular peak or seasonal demand periods, and routine maintenance or upgrade of the Cable System.

            G.        Disconnection.

                        1.         Voluntary Disconnection.

                                    a.         A Subscriber may terminate service at any time.

                                    b.         A Franchisee shall promptly disconnect any Subscriber who so requests from the Franchisee’s Cable System.  No period of notice prior to voluntary termination of service may be required of Subscribers by any Franchisee.  So long as the Subscriber returns equipment to Franchisee’s service center located in the Town or makes available to Franchisee to pick up within three (3) business days of the disconnection, no charge may be imposed by any Franchisee for such voluntary disconnection or for any Cable Services delivered after the date of disconnection request.

                                    c.         A Subscriber may be asked, but not required, to disconnect the Franchisee's equipment.

                                    d.         Any security deposit and/or other funds due the Subscriber shall be refunded on disconnected accounts after the converter has been recovered by the Franchisee.  The refund process shall take a maximum of forty-five (45) days from the date disconnection was requested to the date the Subscriber receives the refund.

                        2.         Involuntary Disconnection.  If a Subscriber fails to pay a monthly Subscriber or other fee or charge, the Franchisee may disconnect the Subscriber’s service outlet; however, such disconnection shall not be effected until forty-five (45) days after the date on which the applicable monthly bill was sent to the Subscriber and advance written notice of intent to disconnect to the Subscriber in question. The notice of delinquency and impending termination may be part of a billing statement provided that the message is in bold or large type or other similar manner designed to bring the information to the Subscriber’s attention. If the Subscriber pays within forty-five (45) days after the date on which the applicable monthly bill was sent and after notice of disconnection has been given, the Franchisee shall not disconnect.  After disconnection, upon payment by the Subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the Franchisee shall promptly reinstate Cable Service.  Franchisee reserves the right to deny Cable Service to any Subscriber who has been repeatedly disconnected for nonpayment of such services to the extent such rights are consistent with applicable state and federal law.

                        3.         With respect to any disconnection, whether requested or involuntary, a Franchisee shall comply with the rules and regulations of the FCC and applicable law regarding ownership, sale, removal and abandonment of home wiring. 

            H.        Franchisee shall intentionally interrupt service only for good cause and for the shortest time possible.  Franchisee shall use its best efforts to insure that such interruptions shall occur only during the hours of 1:00 a.m. to 6:00 a.m.  Franchisee shall maintain a written log for all intentional service interruptions.

            I.          Franchisee shall notify the Town Manager or designee immediately if a service interruption affects two hundred (200) or more Subscribers for a time period greater than four (4) hours.

            J.          Franchisee shall cause all its field employees to wear a picture identification badge indicating their employment by Franchisee.  This badge shall be clearly visible to the public.

            K.        A Franchisee shall develop written procedures for the investigation and resolution of all Subscriber or Town resident complaints that are received by the Town.  Such procedures shall be submitted to the Town Manager or designee.  A Subscriber or Town resident who has not been satisfied by following the Franchisee's procedures may file a written complaint with the Town Manager or designee who will investigate the matter and in consultation with the Franchisee, as appropriate, attempt to resolve the matter.  A Franchisee's performance in resolving Subscriber and resident complaints in a fair and equitable manner will be considered in connection with the Franchisee's renewal application.  Franchisee shall maintain a complete list of all complaints received during the previous twelve (12) months from Subscribers that required a service call and were not resolved within seven (7) days of receipt and the measures taken to resolve them.  This list shall be compiled on a quarterly basis and, if such unresolved complaints exist, submitted to the Town upon request.  In providing such information, Franchisee shall be obligated to protect Subscriber privacy in accordance with federal law.

            L.         Franchisee shall permit the Town Manager or designee to inspect and test the Cable System’s technical equipment and facilities upon reasonable notice which shall be not less than seventy-two (72) hours except in the case of an emergency, as determined by the Town Manager or designee.

            M.        Franchisee shall abide by the following requirements governing communications with Subscribers, bills and refunds:

                        1.         Each Franchisee shall provide to Subscribers written information in each of the following areas at the time of installation, or at least once annually, and at any future time upon request by the Subscriber:

                                    a.         How to use the Cable Service;

                                    b.         Installation and service maintenance policies;

                                    c.         The products and services offered;

                                    d.         Prices and service options;

                                    e.         Channel positions of programming carried on the Cable System;

                                    f.          The Franchisee's procedures for the receipt and resolution of Subscriber complaints and the Franchisee’s address and telephone number to which complaints may be reported if not otherwise provided.

                                    g.         The telephone number and address of the Town’s office designated to handle cable television complaints and inquiries;

                                    h.         The availability of a “lock-out” device;

                                    i.          The Franchise’s information collection and disclosure policies for the protection of a Subscriber’s privacy.

                        2.         In addition, each Franchisee shall provide written notice in its monthly billing, at the request of the Town Manager, of any Town meeting regarding requests or applications by the Franchisee for renewal, transfer or modification of its license.  The Town Manager shall make such a request in writing, with reasonable notice prior to the mailing of any billing by Franchisee, such that Franchisee’s regular billing cycle shall not be interrupted.  To the extent that any notice requested by the Town would exceed the messaging limitations of the Franchisee’s billing system and would thus cause the Franchisee to print and insert a separate document into the bill, the Town may be requested to pay printing costs and incremental postage expenses for such notice.

                        3.         Franchisee's bills will be clear, concise and understandable.

                        4.         Refund checks will be issued promptly, but no later than the earlier of forty-five (45) days or the Subscriber’s next billing cycle following the resolution of a refund request, or the return of the equipment supplied by the Franchisee if Cable Service is terminated.

                        5.         Credits for service will be issued no later than the Subscriber’s next billing cycle following the determination that a credit is warranted.

                        6.         A Franchisee shall provide Subscribers, the Town Manager, and the Town Commission with at least thirty (30) days’ advance written notice of any changes in rates, charges, channel lineup, or initiations or discontinuations or changes of Cable Services offered over the Cable System if such change is within the control of the Franchisee, and in accordance with FCC regulations.

            N.        A Franchisee shall, upon an affected Subscriber's request, provide a pro rated 24 hour credit to the Subscriber's account for any period of four (4) hours or more within a 24 hour period during which a Subscriber experienced an outage of service or substantial impairment of service, whether due to a Cable System malfunction or other cause.

            O.        Billing.

                        1.         The Franchisee's first billing statement after a new installation or service change shall be pro-rated as appropriate and shall reflect any security deposit.

                        2.         The Franchisee's billing statement must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges.  Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits.

                        3.         The Franchisee’s billing statement must show a specific payment due date.  Any balance not received by the due date may be assessed a late charge consistent with applicable law.  The late charge will appear on the following month's billing statement.

                                    a.         Franchisee shall provide reasonable notice to the Town and Subscribers of the amount of any processing fees for late payments and the manner of imposing such fees.  Any late fee that may be imposed shall be in an amount and manner consistent with applicable state and federal law.    Late charges on unpaid bills shall not exceed Five Dollars ($5.00).  Such fee shall be deemed to represent the Franchisee’s reasonable administrative costs, and in no event shall exceed eighteen percent (18%) per annum on the unpaid balance or the maximum amount of interest allowed by law. If a Subscriber disputes a bill on or before the due date, the Franchisee shall waive a late fee during the period until a final resolution of the dispute is agreed upon between the Franchisee and the Subscriber.

                                    b.         Subscribers shall not be charged a late fee or otherwise penalized for any failure by the Franchisee, its employees, or contractors, including failure to timely or correctly bill the Subscriber, or failure to properly credit the Subscriber for a payment timely made.

                        4.         The Franchisee must notify the Subscriber that he or she can remit payment in person at the Franchisee’s office and inform the Subscriber of the address of that office and any other payment locations within ten (10) miles of the Town.

            P.         Alteration of Service. Except as incident to an upgrade or rebuild of the Cable System, a Franchisee may not substantially alter the Cable Service being provided to a Subscriber (including by re tiering, restructuring a tier or otherwise) without the express affirmative permission of such Subscriber, unless it complies with this subsection.

                        1.         If a Franchisee wishes to alter the Cable Service being provided to a Subscriber (including by re-tiering, restructuring a tier or otherwise) in such a way that the Subscriber will no longer be able to obtain the same package of Cable Services then the Franchisee must provide the Subscriber with thirty (30) days’ notice of such alteration, explain the substance and the full effect of the alteration, and provide the Subscriber the right within the thirty (30) day period following notice, to opt to receive any combination of Cable Services offered by the Franchisee.

                        2.         Except as provided herein or under applicable federal, state or local law, no charge may be made for any Cable service or product which the Subscriber has not affirmatively indicated, in a manner separate and apart from payment of the regular monthly bill that the Subscriber wishes to receive.

            Q.        Franchisee shall certify in writing to the Town as of January 1st and July 1st of each year, based upon internal due diligence by the Franchisee, that to the best of Franchisee's knowledge it is in substantial compliance with the standards set forth in this Section 15-15, said certification to be made as of a date within thirty (30) days of January 1st and July 1st.  At the request of the Town, for reasonable cause including but not limited to discrepancies between the reports provided to the Town and the certification required herein, the Franchisee shall submit such documentation, as may be required, to demonstrate Franchisee’s compliance with this Section 15-15.  This documentation shall be submitted within thirty (30) days of the Franchisee’s receipt of the Town's request.

            R.         Notwithstanding anything to the contrary, Franchisee shall not incorporate within any bulk residential subscriber contract the term of the Franchise granted by the Town as the length of the term of a bulk contract(s).  Franchisee shall make available to all residential bulk Subscribers the same level of service provided to Franchisee’s residential Subscribers in the Town, including, but not limited to, the requirements of Section 15-15 herein, unless the parties to the bulk contract have expressly agreed otherwise in writing.

            S.         Responsibility for the administration of this Ordinance and any Franchise granted pursuant to this Ordinance, and for the resolution of all complaints against the Franchisee regarding the quality of service, equipment malfunctions, and related matters, is hereby delegated to the Town Manager or his designee, who is empowered, among other things, to settle, or compromise any controversy arising from operations of the Cable System by  Franchisee, either on behalf of the Town or any Subscriber, in accordance with the best interests of the public.  In cases where requests for service have been ignored or in cases where the service provided is alleged to be in non-compliance with this Ordinance or a Franchise Agreement, the Town Manager or his designee shall have the power to require the Franchisee to provide service consistent with the terms of the Franchise, if in the opinion of the Town Manager or his designee such request for service is reasonable.  Any person aggrieved by a decision of the Town Manager, including the Franchisee, may appeal the matter to the Town Commission for hearing and determination.  The Town Commission may accept, reject or modify the decision of the Town Manager. No adjustment, settlement, or compromise, whether instituted by the Town Manager or by the Town Commission, shall be contrary to the provisions of this Ordinance or any Franchise issued pursuant to this Ordinance and neither the Town Manager nor the Town Commission, in the adjustment, settlement, or compromise of any controversy shall have the right or authority to add to, modify or delete any provision of the Ordinance or of the Franchise Agreement, or to interfere with any rights of Subscribers or any Franchisee under applicable federal, or state law or private contract.

            T.         The Town Manager or designee shall have the authority to assess fines for violations of this Section 15-15 in accordance with the schedule set out below or as otherwise provided in a Franchise Agreement.  The fines listed are to be assessed on a per violation basis with each day of a continuing violation constituting a separate violation, except for those customer service standards set forth in Subsections (d) and (e) above which are measured on a quarterly basis.  With respect to such standards that are measured on a quarterly basis, the fines for such violations shall be assessed $5,000 per quarter if the Franchisee falls below such standards by 20% or more.  Prior to assessing any fines set forth in the schedule below, the Town Manager or designee shall following the procedures set forth in Section 15-29 of this Ordinance.

SCHEDULE OF FINES

Single Violation of:                                                                                Fines

(a)        Section 15-15 (a), hereof.                                                         $          50.00

(b)        Section 15-15 (b), hereof.                                                        $          50.00

(c)        Section 15-15 (c), hereof.                                                         $          as detailed above

(d)        Section 15-15 (d), hereof.                                                        $          as detailed above

(e)        Section 15-15 (e)(1-5), hereof.                                     $          as detailed above

(f)         Section 15-15 (g)(1-3), hereof.                                     $          50.00

(g)        Section 15-15 (h), hereof.                                                         $          150.00

(h)        Section 15-15 (i), hereof.                                                          $          150.00

(i)         Section 15-15 (j), hereof.                                                         $          150.00

(j)         Section 15-15 (k), hereof.                                                        $          50.00

(k)        Section 15-15 (m)(1-5), hereof.                                                $          50.00

(l)         Section 15-15 (m)(6), hereof.                                                   $          50.00

(m)       Section 15-15 (n), hereof.                                                         $          50.00

(n)        Section 15-15 (o), hereof.                                                        $          50.00

(o)        Section 15-15 (p), hereof.                                                        $          50.00

(p)        Section 15-15 (q), hereof.                                                        $          50.00

(q)        Section 15-15 (s), hereof.                                                         $          50.00

                        1.         Prior to  assessing a fine, the Town Manager or designee  shall consider any justification or mitigating factor advanced in Franchisee's written response, including, but not limited to rebates or credits to the Subscriber, a cure or commencement of a cure of the violation, and the payment of any penalty to Palm Beach  County for the same violation.  The Town Manager or designee may, after consideration of the response of the Franchisee, waive or reduce any proposed fine.

                        2.         Subsequent to the notice of proposed fine to Franchisee and consideration of the Franchisee's response, if any, and after following the procedures set forth in Section 15-29 hereof, the Town may issue an assessment of  fine. Any fine will commence as of the date of the written notice specifying the violation at issue.  The fine shall be paid within thirty (30) days of written notice of assessment to the Franchisee. The Town may enforce payment of the refund or fine in any court having jurisdiction or if Franchisee challenges the assessment in a court of competent jurisdiction, within thirty (30) days of a final non-appealable decision that the assessment is valid.  This fine shall constitute liquidated damages to the Town for the violation and the Town may enforce payment of the fine in any court having jurisdiction.  It is the intent of the Town to determine fines as a reasonable estimate of the damages suffered by the Town and/or its Subscribers, whether actual or potential, and may include without limitation, increased costs of administration, enforcement and other damages difficult to measure.

                        3.         Any Person who intentionally files a false complaint against a Franchisee shall be subject to a fine, payable to the Town, in the amount of fifty dollars ($50) for the first violation and one hundred dollars ($100) for each subsequent violation.

                        4.         Intentional misrepresentation by a Franchisee in any response to a notice of proposed refund and/or fine shall be grounds for revocation of the Franchise.

                        5.         In addition to complying with the customer service standards set forth in this Ordinance or in any Franchise issued pursuant to this Ordinance, a Franchisee shall comply with all customer service standards applicable to Cable Systems of the FCC and any other applicable law governing the operations of the Cable System within the Town.  If during the term of any Franchise granted pursuant to this Ordinance, the FCC modifies the customer service standards applicable to Franchisee, the Town may modify this Ordinance to reflect any such new customer service standards.

            U.        The Town expressly reserves the right to consider violations of the customer service requirements in evaluating any renewal, modification or transfers of any Franchise Agreement.

            V.        The Town and Franchisee recognize that the customer service standards set forth in this Section 15-15 reflect the current operating procedures of Franchisee.  If Franchisee’s current operating procedures change during the term of any Franchise granted pursuant to this Ordinance, the Town agrees to meet with Franchisee to discuss appropriate modifications to such standards and to consider such reasonable modifications to the standards set forth herein as requested by a Franchisee to reflect any such new operating procedures.  Upon request of the Franchisee, the Town shall also discuss with Franchisee the need to continue such regulation in light of the competition that Franchisee may face in the provision of Cable Services to Subscribers and to consider such reasonable modifications to the customer service standards set forth herein in light of the competitive environment.  Notwithstanding anything to the contrary, Franchisee shall be obligated to comply with this Section 15-15 unless modifications are agreed upon by the Town and Franchisee in writing.

            Section 15-16.             Subscriber Privacy.   

            A.        A Franchisee shall at all times protect the privacy of all Subscribers to the full extent required by Section 631 of the Communications Act, 47 U.S.C. § 551 and state law.

            B.         Unless otherwise permitted by federal or state law, neither the Franchisee nor its agents or employees shall, without the prior and specific written authorization of the Subscriber involved, sell, or otherwise make available for commercial purposes the names, addresses or telephone numbers of any Subscriber or Subscribers, or any information which identifies the individual viewing habits of any Subscriber or Subscribers.

            Section 15-17.             Discrimination Prohibited.  

            A.        No Franchisee in its rates or charges, or in the availability of the services or facilities of its Cable System, or in any other respect, may unlawfully discriminate against any Subscriber, potential Subscriber, or group of Subscribers or potential Subscribers; provided, however, that a Franchisee may offer promotional or discount rates to certain, but not all, Subscribers for a limited time without violating the provisions of this Section 15-17.  A Franchisee shall not deny, delay, or otherwise burden service or discriminate against Subscribers or users on the basis of age, race, creed, religion, color, sex, handicap, national origin, marital status, or political affiliation, except for discounts for senior citizens, the economically disadvantaged or handicapped that are applied in a uniform and consistent manner.  A Franchisee may also offer bulk discounts to multiple dwelling buildings to the extent such discounts are otherwise permissible by law.

            B.         A Franchisee shall not deny cable service to any potential Subscriber because of the income of the residents of the area in which the Subscriber resides.

            C.        The Franchisee shall comply with Federal, state and local laws and regulations governing equal employment opportunities and as the same may from time to time be amended.

            Section 15-18.             Use of Streets.

            A.        Any pavements, sidewalks, curbing or other paved area taken up or any excavations made by a Franchisee shall be done under the direction of the Town under permits issued for work by the proper officials of the Town, and shall be done in such manner as to give the least inconvenience to the inhabitants of the Town.  A Franchisee shall, at its own cost and expense, and in a manner approved by the Town, replace and restore any such pavements, sidewalks, curbing or other paved areas in as good a condition as before the work involving such disturbance was done, and shall also make and keep full and complete plats, maps and records showing the exact locations of its facilities located within the public Streets, ways, and easements of the Town.

            B.         Except to the extent required by law, a Franchisee shall, at its expense, protect, support, temporarily disconnect, relocate, or remove, any of its property when required by the Town by reason of traffic conditions, public safety, Street construction, Street resurfacing or widening, change of Street grade, installation of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of municipal or public utility improvements; provided, however, that the Franchisee shall, in all such cases, have the privilege of abandoning any property in place.

            C.        A Franchisee shall, on the request of any person holding a building moving permit issued by the Town, temporarily raise or lower its wires to permit the moving of buildings.  The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the Franchisee shall have the authority to require such payment in advance, except in the case where the requesting person is the Town, in which case no such payment shall be required.  The Franchisee shall be given not less than five (5) calendar days’ advance notice to arrange for such temporary wire changes.

            D.        A Franchisee shall have the authority to trim the trees or other natural growth upon and overhanging the Streets so as to prevent the branches of such trees from coming in contact with the wires, cables and other equipment of the Franchisee, except that, at the option of the Town, such trimming may be done by it or under its supervision and direction at the expense of the Franchisee.

            E.         A Franchisee shall use, with the owner’s permission, existing underground conduits or overhead utility facilities whenever feasible.  Copies of agreements for use of conduits or other facilities shall be filed with the Town as required by the Franchise Agreement or upon Town request.

            F          All wires, cable lines, and other transmission lines, equipment and structures shall be installed and located to cause minimum interference with the rights and convenience of property owners.  The Town may issue such rules and regulations concerning the installation and maintenance of a Cable System installed in, on, or over the Streets, as may be consistent with this Ordinance and the Franchise Agreement.

            G.        All safety practices required by law shall be used during construction, maintenance and repair of a Cable System.  A Franchisee shall not place facilities, equipment or fixtures where they will interfere with any gas, electric, telephone, water, sewer or other utility facilities, or obstruct or hinder in any manner the various utilities serving the residents of the Town of their use of any Street or any other public rights-of-way.

            H.        A Franchisee shall, at all times:

            I.          Install and maintain its wires, cables, fixtures and other equipment in accordance with the requirements of the Town’s Building Code and Electrical Safety Ordinances and any other applicable Building or Electrical Safety Code, and in such manner that they will not interfere with any installations of the Town.

                        1.         Keep and maintain in a safe, suitable, substantial condition, and in good order and repair, all structures, lines, equipment, and connections in, over, under, and upon the Streets, sidewalks, alleys, and public ways or places of the Town, wherever situated or located.

            I.          On Streets where both electrical and telephone utility wiring are located underground, either at the time of initial construction of a Cable System or at any time thereafter, a Franchisee's cable shall also be located underground at the Franchisee's expense.  Between a Street and a subscriber's residence, a Franchisee's cable must be located underground if both electrical and telephone utility wiring are located underground.  If either electric or telephone utility wiring is aerial, a Franchisee may install aerial cable except where a property owner or resident requests underground installation and agrees to bear the additional cost of such installation over and above the cost of aerial installation.

            J.          In the event the use of any part of a Cable System is discontinued for any reason so as to result in Franchisee's failure to provide service to any portion of its Franchise Area for a continuous period of twelve (12) months, or in the event such System or property has been installed in any Street without complying with the requirements of this Ordinance or a Franchise Agreement, or the Franchise has been terminated, canceled or expired, the Franchisee, within thirty (30) days after written notice by the Town, shall commence removal from the Streets of all such property as the Town may require.

            K.        The Town may extend the time for the removal of Franchisee’s equipment and facilities for a period not to exceed one hundred eighty (180) days, and, thereafter, such equipment and facilities may be deemed abandoned.

            L.         In the event of such removal or abandonment, the Franchisee shall restore the area to as good a condition as prior to such removal or abandonment.

            Section 15-19.             Renewal of Franchise.

            Renewal shall be conducted in a manner consistent with Section 626 of the Communications Act, 47 U.S.C. 546. 

            Section 15-20.             Transfer/Sale/Assignment.

            A.        No transfer of a Franchise shall occur without prior written approval of the Town which shall not be unreasonably withheld.

            B.         An Application for a transfer of a Franchise shall meet the requirements of Sections 15-5 and 15-6 hereof, and provide complete information on the proposed transaction, including details on the legal, financial, technical qualifications of the transferee.

            C.        The Application process shall not include any pro forma transfers, as defined herein, that are related solely to any restructuring, recapitalization or refinancing which does not change the effective control of the Franchisee or to any mortgages and pledges of Franchisee’s securities, but shall require proper notice to the Town of not less than sixty (60) days.

            D.        In making a determination on whether to grant an Application for a transfer of a Franchise, the Town Commission shall consider the legal, financial, and technical and other qualifications of the transferee to operate the system; whether the incumbent Cable Operator is in substantial compliance with the material terms of its Franchise Agreement and this Ordinance and, if not, the proposed transferee’s commitment to cure such noncompliance; and whether operation by the transferee would adversely affect cable services to Subscribers, or otherwise be contrary to the public interest.

            E.         No Application for a transfer of a Franchise shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this Ordinance and the Franchise Agreement, and that it will assume the obligations and liabilities of the previous Franchisee under this Ordinance and the Franchise Agreement.

            F.         Subject to applicable law, approval by the Town of a transfer of a Franchise does not constitute a waiver or release of any of the rights of the Town under this Ordinance or the Franchise Agreement, whether arising before or after the date of the transfer.      

            G.        No Transfer shall occur without prior approval of the Town, which approval shall not be unreasonably withheld.  Franchisee shall be subject to liquidated damages in the amount of five hundred dollars ($500) per day for failure to receive such consent of the Town for a transfer or change of control; provided, however, that no such liquidated damages shall be owed if the Town’s denial of consent is unlawful or unreasonable.

            Section 15-21.             Franchise Violations

            A.        In addition to any other remedies available at law or equity, the Town may apply any one or combination of the following remedies in the event a Franchisee violates a provision of this Ordinance or a Franchise Agreement after following the procedures set forth below.

                        1.         Impose liquidated damages as provided in this Ordinance or in a Franchise Agreement.  Payment of liquidated damages by the Franchisee will not relieve the Franchisee of its obligation to comply with the Franchise Agreement and the requirements of this Ordinance, provided, however, that cure of the alleged violation and payment of liquidated damages pursuant to this section shall be considered full and final resolution of the alleged violation and may not be considered as an event of noncompliance for such period.

                        2.         Revoke the Franchise pursuant to the procedures specified in Section ____ hereof.

                        3.         In addition to or instead of any other remedy provided herein, the Town may seek equitable relief from any court of competent jurisdiction.

            B.         In determining which remedy or remedies are appropriate, the Town shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the Town determines are appropriate to the public interest.

            C.        Failure of the Town to enforce any requirements of a Franchise Agreement or this Ordinance shall not constitute a waiver of the Town’s right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.

            D.        If the Town believes that Franchisee has failed to perform any obligation under this Ordinance or a Franchise Agreement or has failed to perform in a timely manner, the Town shall notify Franchisee in writing, stating with reasonable specificity the nature of the alleged default.  Franchisee shall have thirty (30) days from the receipt of such notice to:

                        1.         Respond to the Town, contesting the Town’s assertion that a default has occurred, and requesting a meeting; or

                        2.         Cure the default (except Franchisee shall have ninety (90) days with respect to customer service standards measured on a quarterly basis); or

                        4.         Notify the Town that Franchisee cannot cure the default within the thirty (30) days (or ninety (90) days where applicable), because of the nature of the default.  In the event the default cannot be cured within the applicable time frame, Franchisee shall promptly take all reasonable steps to cure the default and notify the Town in writing and in detail as to the exact steps that will be taken and the projected completion date.  In such case, the Town shall set a meeting to determine whether additional time beyond the time specified above is indeed needed, and whether Franchisee’s proposed completion schedule and steps are reasonable.

            E.         If Franchisee does not cure the alleged default within the cure period stated above, or by the projected completion date, or denies the default and requests a meeting), the Town shall set a meeting to investigate said issues or the existence of the alleged default.  The Town shall notify Franchisee of the meeting in writing and such meeting shall take place no less than thirty (30) days after Franchisee’s receipt of notice of the meeting.  At the meeting, Franchisee shall be provided an opportunity to be heard and to present evidence in its defense. 

            F.         If, after the meeting, the Town determines that the Franchisee has corrected the violation or promptly commenced correction of such violation after notice thereof from the Town and is diligently proceeding to fully remedy the violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

            G.        If, after the meeting, the Town determines that a violation exists and that Franchisee has not corrected the same in a satisfactory manner or did not promptly commence and diligently process to correct the violation, the Town may:

                        1.         Impose penalties and/or liquidated damages in accordance with this Ordinance or a Franchise Agreement as monetary damages;

                        2.         Recommend the revocation of this Franchise pursuant to the procedures below; or

                        3.         Recommend any other legal or equitable remedy available under this Franchise or any applicable law.

            H.        If the Town elects to assess liquidated damages, then such election shall bar the Town from instituting revocation proceedings for a period of one hundred twenty (120) days.  Thereafter, if the Franchisee remains in non-compliance with the requirements of this Ordinance or a Franchise Agreement, the Town may institute revocation proceedings against the Franchisee in accordance with the provisions below.     

                        1.         Notwithstanding anything to the contrary, any fines/liquidated damages imposed herein shall be calculated as accruing from the date of written notice to the Franchisee of the violation.

                        2.         The determination as to whether a violation of this Franchise has occurred shall be within the discretion of the Town Commission, provided that any final determination may be subject to appeal to a court of competent jurisdiction under applicable law.

                        3.         Franchisee shall reimburse the Town for all attorney’s fees incurred in  defending the Town’s finding of a violation against a challenge or appeal by Franchisee when the Town prevails.

                Section 15-22.             Revocation.

            A.        The Town may revoke and rescind all rights and privileges associated with a Franchise in the following circumstances, each of which represents a material breach of this Franchise:

                        1.         If Franchisee fails to perform any material obligation under this Ordinance or in a Franchise Agreement between the Town and Franchisee;

                        2.         If Franchisee willfully fails for more than forty-eight (48) hours to provide continuous and uninterrupted Cable Service;

                        3.         If Franchisee practices any fraud or deceit upon the Town or Subscribers; or

                        4.         If Franchisee willfully makes a material misrepresentation of fact in the Application for or negotiation of a Franchise, a renewal or a transfer. 

            B.         Prior to forfeiture or termination of the Franchise, the Town shall give written notice by certified mail to the Franchisee of its intent to revoke the Franchise.  The notice shall set forth the exact nature of the noncompliance.  If within thirty (30) days following receipt of such written notice from the Town to the Franchisee, the Franchisee has not cured such violation or breach, or has not entered into a written agreement with the Town on a program to cure the violation, or has not demonstrated that the violation is incurable, or has filed a written response to the Town demonstrating that no violation has occurred, the Town may then seek a termination of the Franchise in accordance with this subsection.

            C.        Any proceeding under the subsection above shall be conducted by the Town Commission and open to the public.  Franchisee shall be afforded at least thirty (30) days prior written notice of such proceeding.

                        1.         At such proceeding, Franchisee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce evidence, and to question witnesses.  A complete verbatim record and transcript shall be made of such proceeding and the cost shall be shared equally between the parties.  The Town Commission shall hear any Persons interested in the revocation, and shall allow Franchisee an opportunity to state its position on the matter.

                        2.         Within ninety (90) days after the hearing, the Town Commission shall determine whether to revoke the Franchise and declare that the Franchise is revoked and the security fund forfeited; or if the breach at issue is capable of being cured by Franchisee, direct Franchisee to take appropriate remedial action within the time and in the manner and on the terms and conditions that the Town Commission determines are reasonable under the circumstances. If the Town determines that the Franchise is to be revoked, the Town shall set forth the reasons for such a decision and shall transmit a copy of the decision to the Franchisee.  Franchisee shall be bound by the Town’s decision to revoke the Franchise unless it appeals the decision to a court of competent jurisdiction within one hundred twenty (120) days of the date of the decision.

                        3.         Franchisee shall be entitled to such relief as the Court may deem appropriate.

            D.        If the Town revokes a Franchise, or if, for any other reason, a Franchisee abandons the Cable System, terminates or fails to operate or maintain service to its Subscribers for a period of thirty (30) days, the following procedures and rights are effective:

                        1.         The Town may require the former Franchisee to remove its facilities and equipment at the former Franchisee's expense.  If the former Franchisee fails to do so within a reasonable period of time, the Town may have the removal done at the former Franchisee's and/or surety’s expense.

                        2.         The Town, by resolution of the Town Commission, may acquire ownership, or effect a transfer of the Cable System, in accordance with Section 627 of the Communications Act.

                        3.         If a Cable System is abandoned by a Franchisee, the Town may sell, assign or transfer all or part of the assets of the System.

            E.         Where the Town has issued a Franchise specifically conditioned in the Franchise Agreement upon the completion of construction, System upgrade or other specific obligation by a specified date, failure of the Franchisee to complete such construction or upgrade, or to comply with such other specific obligations as required may result in revocation of the Franchise, unless the Town, at its discretion and for good cause demonstrated by the Franchisee, grants an extension of time.

            F.         No adverse action against a Franchisee may be taken by the Town pursuant to this section except as consistent with the procedures set forth in this section or as otherwise provided by applicable law, including a noticed public hearing at which the Franchisee is given an opportunity to participate.

            Section 15-23.             Continuity of Service Mandatory.

            A.        It is the right of all Subscribers to receive all available services requested from the Franchisee as long as their financial and other obligations to the Franchisee are satisfied.

            B.         In the event of a termination or transfer of a Franchise for whatever reason, the Franchisee shall ensure that all Subscribers receive continuous, uninterrupted service regardless of the circumstances. The Franchisee shall cooperate with the Town to operate the system for a temporary period following termination or transfer as necessary to maintain continuity of service to all Subscribers.  The temporary period will not exceed six (6) months without the Town’s written consent.  During such period the Cable System shall be operated under such terms and conditions as the Town and the Franchisee may agree, or such other terms and conditions that will continue, to the extent possible, the same level of service to Subscribers.

            C.        In the event a Franchisee fails to operate the system for seven (7) consecutive days without prior approval of the Town or without just cause, the Town may, at its option, operate the system or designate an operator until such time as the Franchisee restores service under conditions acceptable to the Town or until a permanent operator is selected.  If the Town is required to fulfill this obligation for the Franchisee, the Franchisee shall reimburse the Town for all costs or damages resulting form the Franchisee’s failure to perform that are in excess of the revenues from the system received by the Town.  Additionally, the Franchisee will cooperate with the Town to allow Town employees or Town agents free access to the Franchisees’ facilities and premises for purposes of continuing system operation.

            Section 15-24.             Rates.  

            Nothing in this Ordinance shall prohibit the Town from regulating rates for cable services to the full extent permitted by law.

            Section 15-25.             Performance Evaluation.

            The Town will conduct periodic performance evaluations of a Franchisee as the Town determines is necessary.  A Franchisee shall cooperate with these evaluations reasonably and in good faith.  If the Town implements a survey of cable Subscribers in connection with a performance evaluation, a Franchisee shall distribute the Town’s questionnaire to its Subscribers.  If the Town implements a survey of cable Subscribers in connection with a performance evaluation, the City may require a Franchisee to distribute the Town’s questionnaire to its Subscribers at the Town’s expense, provided that the Franchisee shall have the right to review the questionnaire prior to its distribution by Franchisee.  Upon request and upon reimbursement of the Town’s copying costs, the Franchisee may receive copies of all responses.

            Section 15-26.             Administration.

            A.        The Town Manager shall have the responsibility for overseeing the day-to-day administration of this Ordinance and Franchise Agreements.  The Town Manager shall be empowered to take all administrative actions on behalf of the Town, except for those actions specified in this Ordinance that are reserved to the Town Commission.  The Town Manager may recommend that the Town Commission take certain actions with respect to the Franchise.  The Town Manager shall keep the Town Commission apprised of developments in cable and provide the Town Commission with assistance, advice and recommendations as appropriate.

            B.         Any request for modification or other action by the Town or Franchisee with respect to a Franchisee’s operation in the Town including, but not limited to, Applications pursuant to Section 15-5 hereof shall be in writing and should be addressed to the Town Manager with copies to the Town Attorney and the Town Clerk.

            C.        Subject to Federal and state law, the Town Commission shall have the sole authority to regulate rates for cable services, grant Franchises, authorize the entering into of Franchise Agreements, modify Franchise Agreements, renew or deny renewal of a Franchise, revoke a Franchise and, authorize the transfer of a Franchise.

            Section 15-27.             Force Majeure.

            In the event a Franchisee’s performance of or compliance with any of the provisions of this Ordinance or the Franchisee’s Franchise Agreement is prevented by a cause or event not within the Franchisee’s control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof, provided, however, that Franchisee uses all practicable means to expeditiously cure or correct any such inability to perform or comply.  For purposes of this Ordinance and any Franchise Agreement granted or renewed hereunder, causes or events not within a Franchisee’s control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court . Causes or events within Franchisee’s control, and thus not falling within this Section, shall include, without limitation, Franchisee’s financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Franchisee’s directors, officers, employees, contractors or agents.

            Section 15-28.             Municipal Cable System Ownership Authorized.

            A.        To the full extent permitted by law, the Town may acquire, construct, own, or operate a Cable System.

            B.         Nothing in this Ordinance shall be construed to limit in any way the ability or authority of the Town to acquire, construct, own, or operate a Cable System to the full extent permitted by law.

            Section 15-29.             Violations of Ordinance.

            A.        Notwithstanding the provisions of Chapter 16 of the Code of the Town, the Town Commission shall hear all matters in connection with violation of this Ordinance not otherwise resolved by the Town Manager pursuant to Section 15-25.

            B.         After following the procedures set forth in Section 15-21 above, if the Town finds that a Franchise has violated any provision of this Ordinance the person shall pay to the Town One Hundred Dollars ($100) per day, (unless this Ordinance specifies a fine in another amount), or any part thereof for each day each violation occurs or continues.  The Town reserves the right to withdraw said payments from the security fund upon 3 days written notice to Franchisee.  It is the intent of the Town to impose the above discussed fines as a reasonable estimate of the damages suffered by the Town or its Subscribers, whether actual or potential, and may include without limitation, increased costs of administration and other damages difficult to measure.

            C.        The Town hereby reserves any and all rights to require that a Franchise remove its equipment and facilities from the Town’s public rights of way where the Town has determined and issued a written decision finding that the damages suffered by the Town or its residents can not be remedied by any reasonable means other than by termination or revocation of a person’s rights to use the Town’s rights of ways.    

            Section 15-30.             Reservation of Rights.

            A.        The Town reserves the right to amend this Ordinance as it shall find necessary in the lawful exercise of its police powers.

            B.         The Town reserves the right to the extent permitted by applicable law to exercise the power of eminent domain to acquire the property of the Franchisee's Cable System.  Nothing herein is intended to restrict or expand such rights as granted by the Constitution and laws of the State of Florida.

            C.        The Town shall at all times have the right, upon reasonable notice and during normal business hours, to examine and copy a Franchisee's records and to inspect a Franchisee's facilities to the extent needed to monitor a Franchisee's compliance with and performance under this Ordinance and the Franchisee's Franchise Agreement.  However, the Town shall not copy any records that have been identified as confidential and proprietary pursuant to Ch. 119 Florida Statutes.

            Section 15-31.             Repeal of Conflicting Ordinances.

            All Ordinances on the same subject and all parts of ordinances, and all resolutions or parts of resolutions in conflict herewith be and the same are hereby repealed to the extent of such conflict.

            Section 15-32.             Savings.

            All fees, charges and financial obligations previously accrued pursuant to the ordinances and resolutions repealed pursuant to Section 31 above shall continue to be due and owing until paid.

            Section 15-33.             Severability. 

            If any part, Section, Subsection, or other portion of this Ordinance or any application thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason, such part, Section, Subsection, or other portion, or the prescribed application thereof, shall be severable, and the remaining provisions of this Ordinance, and all applications thereof not having been declared void, unconstitutional or invalid, shall remain in full force and effect.  The Town declares that no invalid or prescribed provision or application was an inducement to the enactment of this Ordinance.

            Section 15-34.             Inclusion in Code      

            It is the intention of the Mayor and Town Commission of the Town of Ocean Ridge, and it is hereby ordained that the provisions of this Ordinance shall become and be made part of the Code of the Town of Ocean Ridge, Florida.  The Sections of this Ordinance may be renumbered or re-lettered to accomplish such intention, and the word “ordinance” may be changed to “section,” “article,” or other appropriate word.

            Section 15-35.             Effective Date 

            This Ordinance shall take effect upon its adoption on the 5th day of December, 2005.

            FIRST READING this 5th day of December, 2005.

            SECOND AND FINAL READING this 5th   day of December, 2005.

            Commissioner Hogan offered the foregoing Ordinance and it adoption.  The motion was seconded by Commissioner Bingham and upon being putto a vote, the vote was as follows:

            KENNETH M. KALEEL, Mayor                                            Yea

            GEOFFREY A. PUGH, Vice-Mayor                                       Yea

            DR. LYNN L. ALLISON, Commissioner                                Yea

            ELIZABETH P.B. BINGHAM, Commissioner                         Yea

            NANCY L. HOGAN, Commissioner                                       Yea

            The Mayor thereupon declared this Ordinance approved and adopted by the Town Commission of the Town of Ocean Ridge, Florida, on second reading, this 5th day of December, 2005.

                                                                                    TOWN OF OCEAN RIDGE, FLORIDA

                                                                                    BY: ________________________________

                                                                                    KENNETH M. KALEEL, MAYOR

ATTEST: __________________________

                        TOWN CLERK