98-12 ORDINANCE NO. 98-12
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, AUTHORIZING THE CITY MANAGER TO
EXECUTE THE ATTACHED CABLE FRANCHISE
AGREEMENT BY AND BETWEEN THE CITY AND
COMCAST CABLEVlSlON OF BROWARD COUNTY, INC.;
AUTHORIZING THE CITY MANAGER TO DO ALL THINGS
NECESSARY TO CARRY OUT THE AIMS OF THIS
ORDINANCE; AND PROVIDING AN EFFECTIVE DATE.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. The City Manager is hereby authorized to execute the attached
Cable Franchise Agreement (the "Agreement) by and between the City and Comcast
Cablevision of Broward County, Inc. and to do all things necessary to carry out the aims
of this Ordinance.
Section 2. This Agreement is hereby granted and approved.
Section 3. Effective Date. This Ordinance shall take effect and be in force
immediately upon its passage and adoption on second reading.
The foregoing Ordinance was offered by Commissioner Rogers-Libert, who
moved its adoption on first reading. This motion wes seconded by Vice Mayor Beskin
and upon being put to a vote, the vote wes as follows:
Commissioner Arthur Berger yes
Commissioner Ken Cohen yes
Commissioner Harry Holzberg yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Jay R. Beskin yes
Mayor Arthur I. Snyder yes
Ordinance No. 98-
Page 2
Rogers-
The foregoing Ordinance was offered by Commissioner Libert ,
moved its adoption on second reading. This motion was seconded by Commissioner
Cohen , and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger absent
Commissioner Ken Cohen yes
Commissioner Harry Holzberg yes
Commissioner Jeffrey M. Perlow absent
Commissioner Patricia Rogers-Libert yes
Vice Mayor Jay R. Beskin absent
Mayor Arthur I. Snyder yes
PASSED AND ADOPTED on first reading this 17th day of March, 1998.
PASSED AND ADOPTED on second reading,~is 7th day of Ap~/, 1998.
ARTHUR I. SNYDER,/I~IAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY~TTORNEY
COMMUNICATIONS,IN(:,
644 South Andrews Avenue
Fort Lauderdale, FL 33301
April 30, 1998
Mr. Eric M. Soroka
City Manager
City of Aventura
2999 N.E. 191st Street
Aventura, Florida 33180
Dear Mr. Soroka:
Attached please find five (5) originals of the Cable Television Franchise Agreement that
have been executed by Comcast Cablevision of Hallandale, Inc.. Please note that there
was a scfivener's error in the agreement. The error was corrected and initialed on pages
1, 3, and 39. The correct name of the franchisee should have read and was corrected to
read: Comcast Cablevision of Hallandale, Inc..
Additionally, the City Clerk should also make the corrections to the city's copy of the
franchise agreement. We apologize for this oversight and for any inconvenience we may
have created.
In closing, we have also attached the following documents as required by Ordinance No.
97-20 as amended by ordinance No. 98-11:
1. A check made payable to the City of Aventura in the amount of $40,000 as specified
in the franchise agreement.
2. An original Performance Bond in the amount of $50,000 as specified in the franchise
agreement.
3. Five (5) original letters of acceptance with the company's corporate seal as requested
by the City of Aventura.
Notes:
* Certificate of Insurance - An original certificate of insurance has been executed and
mailed directly to the City of Aventura to the attention of the City Manager.
-more-
City of Aventura page 2
* Franchise Fee - Comcast acknowledges the payment of franchise fees as specified in
Ordinance 97-20 as amended by ordinance No. 98-11. Franchise fees will be calculated
from the date of the executed agreement.
* Customer Service Requirements - Comcast agrees to comply with each of the customer
service requirements set forth in Section 18 of Ordinance No. 97-20 as amended by
ordinance No. 98-11.
* Security Fund Requirements - A letter of credit in the amount of $25,000 as requested
in the executed franchise agreement has been prepared and submitted to the City of
Aventura to the attention of the City Manager.
* Exhibit "B" - Comcast has submitted a cash pas~nent in lieu of providing and
purchasing all on-site facilities and cable and production equipment which would have
otherwise been listed in Exhibit "B". The cash payment was made at the request of the
City of Aventura. The City will be responsible for the purchase of the production
equipment necessary to permit both live and delayed cablecasting of all City Council
meetings and other City of public meetings, events, etc...
In closing, we look forward to serving you and the residents of the City of Aventura.
Sincerely,
Cindy Stoddart
Director of Public and Government Affairs
cc: Ila Feld, Esq. (via regular U.S. Mail - copy of agreement and cover letter)
Please acknowledge your receipt of this letter and the enclosed materials by signing a
copy of this letter and returning it to my office at your convenience. Thank you.
Ac~ _ this ~May1998.
Eric M. Soroka, City wtanaggr
· ittsb~gh, ~A ~5219 C~PANIES AFFORDING COVE~GE
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PH~PH~A, PA LgL02-2~48
· ~ 90-02461-15 12/01/97~ 12/01/98 ~~ $.~
'~ ~' ~ · ~*~.~ $ zoooooo
& ~~ 90-02461-13 12/01/97 12/01/98
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~ ~~D 90-02461-10 12/01/97 12/01/98 STAr~UM~O X
(SEE R~BE ~/OR ~TT~ED)
C~ ~ ~NCEL~BON
99 N.B. 191ST STREET S~LJM~U~TION~L~]LI~OF~YKINDU~NYH[JNSURER~F~OJNG
S~ITB 500 ~, f~ A~NTS ~ ~E~TI~S, ~ THE I~UER OF THIS CERTIFI~U.
~VENTU~, FL 3 3 18 0 ~ .
~, (.~s) v~ 4/28/98
PAGE: I OF 2
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
CERTIFICATE #25660 (CONTINUED) LMF
INSURED : COMCAST CABLEVISION OF BROWARD
HOLDER : CITY OF AVENTURA
C/O ERIC SOROKA, CITY MANAGER
2999 N.E. 191ST STREET
SUITE 500
AVENTURA, FL 33180
ADDITIONAL INSURED: OWNERS OF PROPERTY LEASED TO THE NAMED INSURED WHERE
THE TERMS OF THE AGREEMENT REQUIRE THE NAMED INSURED TO PROVIDE INSURANCE
ON BEHALF OF THE OWNER. CERTIFICATE HOLDER WILL BE ADDED TO THE GENERAL
LIABILITY POLICY ONLY AND THEN ONLY WITH RESPECT TO LIABILITY WHICH ARISES
OUT OF THE OPERATIONS OF THE NAMED INSURED.
PAGE: 2 OF 2
CITY OF AVENTURA
GOVERNMENT CENTER
2999 N.E. 191ST STREET
SUITE 300
AVENTURA~ FLORIDA 33180
OFFICE OF THE CITY MANAGER
CITY OF AVENTURA, FL
ACCEPTANCE OF CABLE TELEVISION SYSTEM FRANCHISE
Comcast Cablevision of Hallandale ., Inc., ("Franchisee") hereby accepts the
franchise to construct and operate a cable television system offered by Ordinance No. 98-
12 (the "Franchise") of the City of Aventura, Florida ("City"). By this acceptance, Franchisee
agrees that it shall be bound by the terms and conditions of Chapter 22 of the City Code
and all amendments, as in effect on the date hereof.
Franchisee further agrees that it shall be bound by the terms and conditions set forth
in the Franchise Agreement.
Franchisee declares that it has carefully read all of the terms and conditions of
Chapter 22 of the City Code and all amendments and this Franchise Agreement, and
accepts and agrees to abide by same. Franchisee further understands that this acceptance
shall not be effective unless executed and filed with the City, accompanied by a payment to
the City in the amount of Forty Thousand ($40,000.00) Dollars, no later than the close of
business on May 7, 1998.
It is understood that said payment shall represent satisfaction of Franchisee's
obligations to the City pursuant to Sections 22-37 and 22-38(F) of Chapter 22 of the City
Code and Section 16(A)(6) of the Franchise Agreement.
Franchisee shall be immediately bound to construct, maintain, and operate a cable
television system under the terms and conditions set forth in the Franchise Agreement and
1
PHONE: 305-466-8910 · FAX: 305-466-8939
Chapter 22 of the City Code no later than one hundred and fifty days from the time and date
it files this written acceptance and payments herein described with the City.
LEVI~0_~HAL_LANDAL]~ ', INC.
BY:--~/'~',~,,0 ~,'~ --.~- ~ ~
CORPORATE SEAL
DATE:
2
STATE OF FLORIDA, to wit:
I HEREBY CERTIFY, that on this 3c~ day of J~./"v~.-~ , before me,
the subscriber, a Notary Public of the State of ~f0/tJ~ .., in and for
/...~'o ~b~(::~- '~c~ ?_e.~ , aforesaid, personally appeared
of and
ackno~going Acceptance of Cable Television System Franchise in
, Florida, to be the act and deed of said company.
AS WITNESS my hand and Notary Seal. *~i~...~, co~,.,,s~o, cc676243
MY COMMISSION EXPIRES: ~// ,19 ,::~(~0 /
3
VENDOR NUMBER: CHECK NUM£
COMCAST FINANCIAL 260053494
AGENCY CORPORATION 22932
A Comcast Cable Communications Group CompanyVEND°R NAME: DATE
CiTY OF AVENTURA 24-APR-98
1500 Market St
Philadelphia, PA 19102-2148
GRANT98 22-APR-98 2 435 LEN ROZEK 0.00 40,000.0¢
TOTAL 0.00 $40,0003.
Mellon Bank, N.A.
COMCAST FINANCIAL Mo,on
Ptffsburgh, PA 152590001
AGENCY CORPORATION
Al~m~StMa~et~blest ~mmunica~ns Grip ~m~ny ~932 J [ ~*APR:~ [ ~ 260053~
Phi~delphia, PA 19102-2148
PAY I~''r~ '~' ?r+~'l
~0,0
Fort~ Thousand Dollars ~d O0 ***********************************
TO THE Cl'rY OF AVENTURA
ORDER OF ~"~'~.NE191 STREETSTESO0
AVENTURA, FL 33180
THE AMERICAN INSTITUTE OF ARCHITECTS
Bond No. 1008871709830
AIA Document A312
Performance Bond
Any singular re~erence to Contractor, Surety, Owner or othe~ party shall be considered plural where applicable.
SURETY (Name and Principal Race of Business):
LANDALE, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERIC
644 S. Andrews Avenue One Tower Square
Ft. Lauderdale FL 33301 Hartford CT 06183
OWNER (Name and Address):
CITY OF AVENTURA
2999 NE 191st, Suite 500
Aventura FL 33180
CONSTRUCTION CONTRACT
Date:
Amount:
Description (Name and Location): Annual Construction Bond for Franchise Agreement
Date (Not earlier than Construction Contract Date): 04/28/1998
Amount: $50,000.00
Modifications to this Bond: i'-I None [] See Page 3
CONTRACTOR AS PRINCIPAL SURETY -
Company: (Corporate Sea[) Company: ~ (Cc~porate Seal)
~:~Ojeg~ TRAVELERS CASUALTY ANDSURETY CQMPANYOF
UOIvICA~J~q3KBLEVISION OF HALLANDALE, J_NC. AMERICA . / /, ~,~,'~ /
Il '' ~i' ~ / ,",/
(Any additional signatures appear on page 3) '
Affo'rney-ln-Fact
(FOR INFORA, t4TION ONLY-Name, Address and Telephone)
ACFcNT or BRC~EP.: OWNER'S REPRESENTATIVE (Architect, Engineer or other -
Near North Insurance Brokerage party):
875 North Michigan Ave
Chicago IL 60611
AIA ~ A312 * I~RFORA4ANC~ BOf~O AND PAYMENT BC~D · DEC.~JV~:R 19~4 ED · *MA ®
TIE A/VI[RIC_AN I'~TITUTE OI~ ARCHITECTS. "1735 NEW YO~K AV~.. N.W., WASHINGTON, D.C 2(~136 A312-1gIM I
of I~nitation available to sureties as a defense il the jurisdiction amounts received or to be received by the Owner ~n
of the suit shaJ be applicable, settleme~ o~ insurance or othe~ daims for damages to
1~ Notice to the Sure~y, the Owner or the Contractor shall be which the Contractor is entitled, reduced by all valid and
mailed or delivered to the address gnown on the signature proper payments made to or off behalt of the Co~tractor
pase. under the Construction Co~ract,
11 When this Boeld has been furnished to comply with a 12.2 Co~structionCo~tract:Theastee,'nentbetweenthe
statutcx, y or oth~' ~ reqtaremeflt in the location where the Owner and the Co~tractor ident~ed on the signature
consb'uction was to be performed, any provision in this Bond page, includi~ all Contract Docume~s and changes
co¢~flictinR with said statutory o¢ legal requirerne~t shall be thetelo.
deemed deleted herefrorn and i:x'ovi*Ja~ co~forn~ to such
statutory ot other lesaJ requkement shall be deemed incorpo- 12J Conlracto*- Default: Failure of the Cone'actor, which
rated hereto. The intent is that this Bond ~ be construed as a has neither been remedied nec waived, to pet'form or
statutory bond and not as a common law bond. otherwise to comp~ with the terms of the Construction
12.1 Ba~nce of ~he Comract Price:. The total amount 12.4 Owner Default: Failure of the Owner, which has
payable by the Owner to the Conlractc. t under the Con- neither been res~mcfmd nor waived, lo pay the Contractor'
structio~ Contract after all proper adjustments have been as required by the Construction Contract or ~o perform
made, inclucrm8 allowance to the Contractor of any and complete or comply with the other terms thereoL
MOOJI:KT.A~ TO THIS BONO ARE AS FOU.OWS:
(Space is provided below for additional s~,natures of added parties, other than those appearin8 on the cover pase.)
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company: (Corporate SeaJ)
S~nature: Sisnature:
Name and Title; Name and T~de:
Address: Address:
AIA DCDC:~91ED4T A.3T2 * PERFORMANCE BOND AND PAYN~IT BONO · DECEMBE~ 1984 ED. * AIA ·
THE AA4ERICAN IhISTIllJTE OF ARO-IT[-CTS, 1735 NDA/yocJ~ AVE., N W., WAS~NGTON. D.C. 2(]306 A.312-1g~4 3
CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN
THE CITY OF AVENTURA, FLORIDA AND COMCAST
CABLEVISION OF~31XO][I~ HALLANDALE, INC.
A FRANCHISE AGREEMENT ENTER.ED INTO BETWEEN THE
CITY OF AVENTURA, FLORIDA, AND COMCAST
CABLEVISION OF ~~KI~i~ PURSUANT TO HALLANDALE, I NC. ,
THE CITY OF AVENTURA, FLORIDA CABLE TELEVISION
ORDINANCE NO. 97-20 AS AMENDED BY ORDINANCE NO.
98- ~! AND GRANTING A FRANCHISE TO OWN, OPERATE
AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE
CITY OF AVENTURA, FLORIDA, AND SETTING FORTH
CONDITIONS ACCOIVfPANY1NG THE GRANT OF SUCH
FRANCHISE AND PROVIDING FOR REGULATION AND USE
OF SUCH SYSTEM.
THIS AGREEMENT, effective this day of ___, 1998, is by and between the CITY
OF AVENTURA ("the City") and Comcast Cablevision of B .Xo~. ~X~i~r~TB4~ta Delaware~//~..,
Hal±andale, Inc.,
Corporation ("Comcast").
WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§521
et seq., the City may grant or renew a franchise to construct, operate and maintain a cable television
system; and
WHEREAS, on September 2, 1997, the City Council of Aventura, Florida ("Council"),
adopted Ordinance No. 97-20 as amended by ordinance No. 98- I I , providing for the issuance and
regulation of cable television fi:anchises for, and the installation, construction and operation of, cable
television systems within the City; and
WHEREAS, Comcast desires to obtain a franchise to construct, install, maintain, and operate
a cable system in the City, and has applied to the City for the grant of such franchise; and
WHEREAS, the construction, installation, maintenance, and operation of such a system
involves the use and occupation of the Streets of the City, over which the City exercises
governmental control; and
WHEREAS, the Council has evaluated Comcast's application in light of the requirements
of Federal and State law and the Ordinance, and has conducted public heatings concerning Comcast's
request and application; and
WHEREAS, the Council has relied on Comcast's representations both oral and written and
has considered all information presented to it by Comcast, the City Manager, the City's consultants,
and the public; and
WHEREAS, based on said representations and information, the Council has determined that
a grant ofa nonexclusive franchise to Comcast to construct, install, maintain and operate a cable
television system in the City, subject to the terms and conditions set forth herein and in the
Ordinance, is consistent with the public interest; and
WHEREAS, the Council determined to grant Comcast a non-exclusive franchise to own,
construct and operate a cable television system within the City, subject to the terms and conditions
of the Ordinance and subject also to the City and Comcast entering into a franchise agreement; and
WHEREAS, the City and Comcast have reached agreement on the terms and conditions of
such a franchise agreement.
NOW, THEREFORE, in consideration of the City's grant of Comcast's franchise to own,
construct, install, maintain and operate a cable system within the City, and to use and occupy the
Streets of the City for that purpose, and in consideration of Comcast's promise to provide cable
service to residents of the City pursuant to the Ordinance and under the terms and conditions set
2
forth herein, and in consideration of the promises and undertakings herein, and other good and
valuable consideration, the receipt and the adequacy of which is hereby acknowledged, the franchise
is hereby granted and
THE SIGNATORIES DO HEREBY AGREE AS F(}I~LOWS:
Section 1. Definitions.
Except as otherwise provided herein, the definitions in Section 3 of Ordinance No.
9%20 as amended by ordinance No. 98- I I o£the City of Aventura, Florida, shall govern this
Franchise Agreement. In addition, the following defufitions shall apply:
A. Ordinanc~ shall mean Ordinance No. 97-20 as amended by ordinance No.
o£ the City of Aventura, Florida and as said Ordinance may hereinafter beamended.
B. Franchisee or Comcast shall mean Comcast Cablevision
Hallan
a Delaware corporation, and its lawful and permitted successors, assigns and transferee{puffs/u/ant
to Sections 29 and 30 of this Agreement and Ordinance No. 97-20 as amended by ordinance No.
98- II of the City of Aventura, Florida.
C. Franchise Area shall mean the entire area within the legal boundaries of the City, and
such other areas as may hereinafter be armexed or incorporated by the City during the term of the
franchise.
D. ~ to the cable operator shall be deemed effective upon receipt. Notice to the
City shall be effective upon receipt by the City Manager.
E. Gross Revenues on which franchise fee payments to the City are calculated shall be
defined as provided for in Section 3(T) of Ordinance No. 97-20 as amended by ordinance No. 98-
Section 2. ~se.
A. Subject to the terms of this Franchise Agreement and Ordinance No. 97-20 as
amended by ordinance No. 98- I [ , the City hereby grants Franchisee a franchise for the right and
privilege to own, construct, install, maintain and operate a cable television system within the
Franchise Area.
B. The cable system herein franchised shall be used and operated only for the purposes
of providing cable television services unless and until franchisee obtains written authorization from
the City Manager to provide other services, including but not limited to, telephony and non-cable
video services, unless the City is otherwise prohibited by applicable law from the exercise of such
authority.
C. Franchisee agrees that in no event shall it incorporate the length of time for which a
franchise is granted by the City as a term or condition within any con~'act or other agreement to
provide cable service to a subscriber(s) other than the City. Failure to comply with this Subsection
shall be considered a material breach of this agreement.
Section 3. ~ise.
This franchise shall be for a period often (10) years unless otherwise sooner terminated or
otherwise extended in accordance with the terms of this Franchise Agreement. The franchise shall
commence upon the date that Franchisee provides the City with the written acceptance required by
Section 36 hereof, which must occur within thirty (30) calendar days from the date of the Council
resolution approving the grant of the franchise. This Franchise Agreement is subject to all other
requirements and conditions set forth in this Franchise Agreement and in Ordinance No. 97-20 as
amended by ordinance No. 98- R of the City for a grant ora franchise to become effective, except
to the extent such requirements are modified or waived as expressly set forth herein.
Section 4. Non-Ex~lanchise.
The Franchisee's right to use and occupy the Streets shall be non-exclusive, and the City
reserves the right to grant a similar or other use of said Streets, or any portions thereof, to any
person, including the City, at any time during the term of this Franchise Agreement.
Section 5. ' ' unic~tions Aet~. Statei,a~.
A. This Franchise Agreement is subject to and shall be governed by all terms, conditions
and provisions of the Communications Act, any amendments thereto, and any other applicable
provision of Federal, State or local law, existing or hereafter adopted.
B. This Franchise Agreement is subject to and shall be govemed by all terms, conditions
and provisions of Ordinance No. 97-20 as amended by ordinance No. 98- ti of the City in effect
as of the date of the resolution granting this franchise, in addition to the terms, conditions and
provisions set forth in this Franchise Agreement.
Section 6. ' ' er Laws, Police Power.
A. The Franchisee is subject to and agrees to comply with all applicable local, city, State
and Federal laws, ordinances, rules, regulations and orders.
B. The Franchisee shall at all times be subject to all lawful exercise of the police power
of the City, and this Agreement is not intended to limit the City's exemise of such power in any way.
Section 7. Reservation o£Rights.
A. It is explicitly understood that this Franchise Agreement shall be construed in
accordance with the laws of the State of Florida and Federal law, including, but not limited to, the
rules and regulations promulgated by the Federal Communications Commission.
B. The City reserves thc fight to acquire, purchase, own and/or operate a cable system
to the extent permitted by local, state and federal law.
Section 8. Insurance.
A. Franchisee shall obtain and maintain insurance of the types and minimum amounts
required in Section 11 of Ordinance No. 97-20 as amended by ordinance No. 98- tt in such a
manner as to comply with each and every requirement of that Section.
B. The Franchisee shall provide proof to the City Manager of compliance with this
Section no later than sixty (60) days from the date of the Council resolution approving the grant of
the franchise. Failure to provide the City Manager with proof of insurance within the prescribed
time period will render this Franchise Agreement and the grant of the fi~anchise null and void without
further action by the City.
Section 9. ' ' f~he~_A~.
Pursuant to Section 11 of Ordinance No. 97-20 as amended by ordinance No. 98- t I
Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its
officials, boards, commissions, commissioners, agents, and employees, against any and alt claims,
suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and
expenses arising out of the construction, maintenance or operation of its cable system, the conduct
of Franchisce's business in the City, or in any way arising out of the Franchisee's enjoyment or
6
exercise of a franchise granted hereunder, regardless of whether the act or omission complained of
is authorized, allowed or prohibited by this Ordinance or a franchise agreement, provided, however,
that Franchisee's obligation hereunder shall not extend to any claims caused by the misconduct or
sole gross negligence of the City, its officials, boards, commissioners, agents or employees. This
provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in defending
against any such claim, suit or proceedings; and claims arising out of copyright infringements 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. In addition, this provision is applicable to any and all claims filed by third parties
in any manner related to or arising under Section 11 of Ordinance No. 97-20 as amended by
ordinance No. 98- I~ of the City. Notwithstanding the foregoing, Franchisee may select counsel
to represent the City. City agrees to notify Franchisee, in writing, within ten (10) days of City
receiving notice, of any issue it determines may require indemnification. Nothing in this section
shall prohibit the City from participating in the defense of any litigation by its own counsel and at
its own cost if in the City's reasonable belie£there exists or may exist a conflict, potential conflict
or appearance of a conflict.
Nothing in the provision shall be construed to affect in any way the City's rights, privileges,
and immunities as set forth in Section 768.28, Florida Statutes.
Section 10. ConstruetionJ~nd.
Pursuant to Section 13 of Ordinance No. 97-20 as amended by ordinance No. 98- I ~ , at the
City Manager's request, prior to any cable system construction, upgrade, rebuild or other significant
work in the streets, Franchisee shall furnish a construction bond in favor of the City in the amount
of Fifty Thousand Dollars ($50,000.00). If such construction bond is not fumished to the City ten
(10) days prior to the start of any such construction, construction shall be delayed until such time
as the construction bond is provided in a form acceptable to the City Manager. The construction
bond must be approved by the City Manager or his/her designee, which approval shall not be
unreasonably withheld. The construction bond shall be maintained until said construction work
hereof is completed and for a period not to exceed six (6) months thereafter. Franchisee shall notify
the City Manager in writing when it believes the construction has been completed.
Section 11. Use of Streets.
A. Franchisee agrees at all times to comply with and abide by all applicable provisions
of the City Code.
B. All of Franchisee's cable system distribution facilities shall be installed and
maintained underground to the extent required by Section 21 (I) of Ordinance No. 97-20 as amended
by ordinance No. 98- Il
C. Franchisee shall utilize, with the owner's permission, existing conduits, poles, or other
facilities whenever feasible. The Franchisee has the duty and the responsibility to obtain or establish
the existence of an easement or dedication for its use. Copies of agreements for use of conduits or
other facilities shall be filed with the City, pursuant to Section 21(E) of Ordinance No. 97-20 as
amended by ordinance No. 98- 1~
D. All of Franchisee's transmission lines, equipment, structures and other facilities shall
be installed, located and maintained so as to cause minimum interference with the rights and
convenience of property owners. The City may issue such rules and regulations concerning the
installation and maintenance of a cable system installed in, on, or over public Streets, as may be
consistent with the Ordinance.
E. All safety practices required by applicable federal, state or local law or accepted
industry practices and standards shall be used during construction, maintenance and repair of the
cable system.
F. As required by the City, and upon receipt of written notice from the City, Franchisee
shall remove, relocate, replace or modify at its own expense (except as otherwise required by law)
its facilities with/n any public Street for the reasons set forth in Section 21(B) of Ordinance No. 97-
20 as amended by ordinance No. 98- I ~
G. Franchisee shall obtain any required permits and pay any required fees before
commencing any construction on or otherwise disturbing any private property or public Streets as
a result of its construction or operations. Franchisee shall, at its own expense, restore such property
pursuant to the requirement of Ordinance No. 97-20 as amended by ordinance No. 98- Il . If such
restoration is not performed in a reasonable and satisfactory manner within thirty (30) calendar days,
the City may, after prior written notice to Franchisee, cause the repairs to be made at Franchisee's
expense pursuant to Section 21(A) of Ordinance No. 97-20 as amended by ordinance No. 98- I [
H. If tl~e City is required to perform emergency Street work requiring relocation of
Franchisee's facilities in the Streets, then Franchisee shall reimburse the City for its reasonable costs
associated with such relocation.
I. Franchisee shall not place facilities, equipment or fixtures where they will
unreasonably interfere with any other companies lawfully using the public rights-of-way serving the
residents of the City. All such facilities, equipment or fixtures placed in any public Street or public
right-of-way shall, to the best of the Franchisee's ability, be placed close to the line of the lot abutting
on the public Street, in a manner so as not to interfere with use of the public Street.
Section 12. ' .... - J~ces.
A. Pursuant to Section 14 of Ordinance No. 97-20 as amended by ordinance No. 98- I I
· Franchisee's cable system shall, at a minimum, (1) be able to pass freqhencies of at least 750 MHZ;
(2) have a minimum channel capacity of at least seventy-eight (78) video channels; (3) have at least
two (2) activated downstream video chaimels; (4) have two-way interactive capability; and (5)
upstream video channel capacity to the headend from the locations specified herein, and in the
amount necessary to satisfy, the access channel requirements set forth in Section 16 hereof.
B. Franchisee further agrees to provide cable service, without charge, to the City
buildings as set forth in Exhibit A to th/s Franchise Agreement, and to all buildings of the City that
may be constructed or opened within the City or annexed areas during the term of this Franchise
Agreement within sixty (60) days of receipt of a request from the City Manager or his designee.
Where Franchisee's plant is the closest franchised cable operator to a specified facility, such service
shall include the basic cable service tier and all programming offered on the cable programming
10
service tier including any additional programming added to those two levels of service, to the extent
a separate charge is not associated with such additional programming.
C. School Commitments.
At such time as any public or private school serving any grades K-12 (as required in
Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 421 ekseq., as
amended) is to be constructed within the territorial boundary of the City, Franchisee hereby agrees
to provide, at minimum, the products and services described in Section 12(C)(1-7) herein. Where
Franchisee receives prior notice of the construction, Franchisee shall cooperate with the builder to
install all cable related facilities during construction so as to allow for activation of cable services
simultaneous with occupancy of the building. Notwithstanding anything to the contrary, where
Franchisee's plant is the closest plant to the school site, Franchisee shall comply with the
requirements of Section 12(C)(1-7) herein within sixty (60) days of receiving a request from the City
Manager or his designee.
1. Franchisee shall, at a minimum, provide a service connection at one outlet in
all public and private schools grades K-12 (as defined in Title I of the Elementary and Secondary
Education Act of 1965, 20 U.S.C. {3 421a et seq., as amended), where Franchisee's plant is the
closest franchised cable operator to a specified school. Such connections will be made free of charge
and as promptly as possible to all unserved schools requesting such a connection. Upon request,
Franchisee will provide, at Cost, such a service connection to any other unserved K-12 public and
private (as defined in Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §
421a et~seq., as amended) school located within the City. If any internal wiring installation is
13_
requested to serve additional outlets in any school, it will be provided at Cost; provided, however,
that such internal wiring will be provided without charge if Franchisee is able to coordinate with
other comparable electrical wiring installation in cases of new construction or substantial
rehabilitation of existing schools in the City.
2. Any public or private school connected pursuant to subparagraphs 1 or 2 may
elect to install its own internal wiring (provided such wiring meets required technical specifications)
and to bear the cost thereof. Free BST and free CPST service will be provided to each outlet in all
connected public and private schools.
3. Franchisee will provide free educational program listings equal to the number
of outlets to each connected school. Additional copies of such program listings will be provided,
if requested by a school. Such educational program listing will identify and describe programming
on Franchisee's system that is appropriate for use in the classroom and will provide suggested
cmxiculum support ideas.
4. Franchisee will provide to each connected school materials for teachers that
explain the educational applications of Franchisee's broadband cable systems and services. The
materials will be provided to all connected schools. Additional copies of such materials will be
provided, upon request.
5. Within twelve months after Franchisee or any parent, affiliate or subsidiary
makes an on-line service providing Interact access for personal computers commercially available
on the system serving the City or the system serving the City of Ft. Lauderdale, Franchisee will,
upon request by the City Manager, provide schools within the City with at minimum one free
connection to such on-line service. At a minimum, such on-line service will provide access to the
Intemet. Upon request, each connected public or private (K- 12) school will receive at minimum one
free cable modem per outlet and have free unlimited access to cable modem service, including but
not limited to Interact access, during the school year. Additional cable modems and operational
support and services (for example, assisting connected schools in setting up and maintaining reliable
Intemet connections), will be provided to connected schools, at cost upon request. In addition, no
less than once per year Franchisee will conduct or sponsor a training program in the Dade and
Broward County area to educate teachers about its on-line service and to provide connected schools
with an opportunity for hands-on training.
6. Upon request, one municipal building will receive at minimum one free
connection to on-line service when it becomes commercially available. At a minimum, such on-line
service will provide access to the Internet. Upon request, the designated municipal building will
receive one free cable modem per outlet, unlimited access to cable modem service and free unlimited
access to the Intemet. Additional cable modems and operational support and services will be
provided to municipal buildings at a reasonable price.
7. Franchisee agrees not to seek to recover the cost for these connections as
external or other costs.
8. Nothing herein shall preclude Franchisee from providing benefits to schools
which exceed those provided herein.
D. All video signals received for transmission that contain closed circuit captioning
information for the hearing impaired shall in turn contain such information in the form received
when transmitted by the cable operator to the subscribers of the system.
E. Franchisee's system shall be capable of transmitting, and shall transmit, to subscribers
any stereo signals and any other form of advanced television signals received and carried by the
system in the form received.
F. Franchisee shall take affirmative, economically feasible steps to ensure maximum
availability of the services and facilities of the system, including without limitation all access
channel services and facilities, to handicapped persons, including heating impaired persons.
Franchisee shall comply fully with all applicable laws concerning handicapped or disabled persons,
and shall indemnify and hold the City harmless from any suit, claim, or demand against it for
violation of such laws that arises from Franchisee's provision, or failure to provide, services in
con/brmity with such iaws.
G. Franchisee hereby agrees to be responsible for wiring each and every floor of City
Hall with one outlet per floor (and with the capability to provide additional outlets on request) and
for installing all facilities necessary for live cable-casting of City Council meetings provided
Franchisee is given reasonable notice of the City's needs, all necessary construction plans and
schedules, and access to the premises.
H. Upon the request of the City Manager, if technologically and economically feasible,
the Franchisee shall lease, on the same terms and conditions as provided to any other franchising
authority or community served by the same system and to the City of Fort Lauderdale, but in no
event in an amount greater than the actual cost basis to the Franchisee, such up and downstream
capacity on the cable system as may be required to allow the City to collect data from subscribers
for purposes not competitive with services offered by Franchisee, including, but not limited to,
reading water meters, to the extent such capability is available. The Franchisee shall allow the City
to co-locate necessary equipment with the cable system and to intemonnect such equipment into the
cable system, at the City's cost, provided said equipment does not interfere with the cable system's
technical integrity.
Section 13. Teelmologieal Improvements to Syate~m.
A. The Franchisee and the City recognize that the technology of cable systems and the
services available are advancing at a rapid rate. Thus, Franchisee hereby agrees to provide the City
and its subscribers, during the term of this agreement, with at minimum, comparable technology,
products, services, and benefits which are provided by the Franchisee to any other community,
served from the same headend as the City, and within six (6) months, any technology, products,
services and benefits which are provided by the Franchisee to the City and subscribers in Fort
Lauderdale.
B. Upon request of the City, after the fifth anniversary but, prior to the seventh annual
anniversary of the franchise herein granted, the Franchisee shall, report in writing to the City
Manager, in a form satisfactory to the City Manager, on technological advances and the availability
of new and enhanced services for cable systems. The report shall state what plans, if any, the
franchisee has for the upgrade or rebuilding of its cable system to the State-of-the-Art. The report
shall also contain an analysis of the impact of updating the cable system to include new advances
upon the franchisee's technical plant, customer service, subscriber rates, and the Franchisee's
financial capabilities. To the extent known by Franchisee, the franchisee shall also provide the City
Manager with a comparison of the services, facilities and technologies utilized by Franchisee or any
parent, affiliate or subsidiary of Franchisee and upon request, a list of City selected jurisdictions up
to a maximum often (10), with an explanation of the services, facilities and technologies utilized
in those jurisdictions and an assessment of the costs associated with implementing the new
technologies in the City.
C. In the event that Franchisee, pursuant to section B above, provides to the City and the
City accepts a plan to activate an upgrade or rebuild of the system to State-of-the-Art no later than
the ninth anniversary of the date hereof, Franchisee and the City hereby agree to extend the term of
this franchise fi.om ten (10) years to fifteen (15) years from the effective date hereof.
Section 14. ~s.
Franchisee shall maintain and operate its cable system, at a minimum, in full compliance
with FCC regulations and Ordinance No. 97-20 as amended by ordinance No. 98- I ~ . Franchisee
shall further comply with each of the following requirements:
A. All antennas, supporting structures, and outside plant used in operating and
maintaining Franchisee's cable system within the City shall comply with all generally accepted
industry standards and all applicable federal, state, county, City and/or utility laws, ordinances, rules,
regulations and applicable lease agreements relating to tower structures and outside plant.
B. All construction, installation and maintenance of Franchisee's cable system shall
comply with the National Electrical Safety Code, the National Electrical Code, all applicable state
and local laws and regulations, and accepted industry practices.
C. Franchisee's cable system shall, at a minimum, meet or exceed all technical and signal
quality standards of the FCC and the National Cable Television Association, including such
standards as hereinafter may be adopted or promulgated.
Section 15. P~rQo f o f Per for m an e eleosB.
Franchisee shall perform, at its expense, the proof of performance tests as required by Section
15 of Ordinance No. 97-20 as amended by ordinance No. 98- ~ [ to demonstrate compliance with
the requirements of that Section, this Franchise Agreement, FCC standards, and the standards of
Good Engineering Practices for Measurements on Cable Systems, published by the National Cable
Television Association. Upon written request, Franchisee will provide proof of performance test
results within thirty (30) days to the City Manager.
Section 16. Access Channels and Facilities.
A. ~ ' . Franchisee shall provide to the City, at least one (1) and
a maximum of two (2) activated downstream access channels and at least one (1) and a maximum
of two (2) activated upstream channels on the system which the City may elect to use, in whole or
in part, for video and audio services solely for educational and/or governmental access use at the
City's discretion on the following terms and conditions:
1. Upon written request of the City Manager, Franchisee agrees that it will
cablecast all taped City Council meetings, or, subject to Section 12 (G) hereof, at the City
Manager's discretion, cablecast live on the cable system all City Council meetings and provide tapes
of such meetings to the City Manager, other cable operators or residential developments as requested
by the City at cost. Such obligation shall terminate at such time as the Government complex is fully
capable of taping and cablecasting on the cable system.
17
2. As of the effective date hereof, Franchisee shall provide one dedicated access
channel. The channel shall be activated from a location designated by the City. If at any time the
initial Channel is programmed during at least six (6) hours per day with locally produced
programming, Monday through Friday for four (4) consecutive weeks, Franchisee shall, without
charge, at the request of the City, provide the City with a second Access Channel. Both parties agree
the computer generated messaging shall not count toward the six (6) hours per day programming
test. In the event the programming on the first access channel falls below the specified level for a
period of eight consecutive weeks, then City agrees that Franchisee shall have the right to deactivate
the second access channel.
3. Franchisee's system shall be configured so that any programming delivered
to the system on any upstream channel required hereunder may be delivered downstream on the
system on any of the activated downstream access channels required or from such other access
facilities in North Dade or Southern Broward Cotmty as may be provided by Franchisee that are
technically and financially feasible.
4. The access channels to be provided to the City as set forth above may be
allocated by the City to any or all categories of access use (educational or governmental) at the sole
discretion of the City.
5. Franchisee shall make available all necessary headend and system electronic
and distribution equipment so that any programming transmitted upstream on any upstream channel
from any origination location designated by the City Manager pursuant to Section 16 hereof may be
transmitted downstream to all subscribers on any of the downstream access channels provided
lS
pursuant to Section 16 hereof. The City Government Center will be linked to the headend by the
most technically feasible and cost effective means. Franchisee will make available the necessary
system electronic and distribution equipment to Franchisee's headend and distribution system to
make possible the live cablecasting of the programming from the City Government Center.
6. Franchisee agrees that all access channels will be provided to subscribers on
the system as a part of the lowest tier of basic service and that, if such information is supplied to
Franchisee or known by Franchisee pursuant to its responsibilities under Section 16 hereof,
Franchisee will publicize programming on the access channels as a part of any ordinary printed
program listings it provides which include program listings for the basic tier of service or will
include access channel programming listings in any monthly program guide sent to subscribers
which include program listings for the basic tier of service, provided that information concerning
access channel programming is provided to or becomes known to Franchisee within the time and in
a manner that other programmers are required to provide such information for inclusion in such
program listings or program guide.
B. Access Facilities, Equipment and Support.
I. Franchisee, at Franchisee's sole expense, shall provide all on-site facilities and
cable and production equipment as described on Exhibit B attached hereto necessary to permit both
live and delayed cablecast of all City Council meetings and other City or public meetings, events and
programs held at the City complex, to all subscribers in the City, as well as a new character
generator (as described in Exhibit B) to permit transmission of public service messages from the
Government Center to all such subscribers. The upstream system electronic and distribution
facilities and equipment and cabling provided by Franchisee shall be of sufficient quality and
performance specifications to enable all material cablecast on the access channels provided pursuant
to this Agreement to meet all video and audio signal quality standards adopted by the FCC and as
provided generally by the Franchisee on the system when transmitted downstream to subscribers,
including any such standards as may be adopted or amended during the term of this Franchise
Agreement . It is understood that Franchisee shall be responsible for maintaining all such
equipment in good repair and in operational condition, at Franchisee's expense, unless such
equipment is damaged as a result of the City's negligence.
2. Franchisee shall provide, at its sole expense, training of authorized
representatives of the City to operate the production and transmission equipment in such a manner
so as to ensure that the quality of the cablecast would be the same as if an employee of the
Franchisee was fulfilling the duties.
3. In addition to the City council meetings, the City Manager may designate up
to a maximum of twelve municipal or civic events ("Designated Municipal Event") per year that are
no longer than three hours each that Franchisee shall cablecast live from Franchisee's studio subject
to reasonable availability on the first access channel. When City Hall is built and has been wired
and equipped for cablecasting, the City Manager may designate up to a maximum of four (4)
Designated Municipal Events per year, no more than four hours each, that Franchisee shall
cablecast live and up to a maximum of eight Designated Municipal Events that Franchisee shall
video tape and provide the City Manager with a copy of such video tape so that the City may play
such tape on a designated access channel. The City Manager shall notify Franchisee in writing of
20
each such Designated Municipal Event, and its place and time, no less than two (2) weeks before
each such event is held. Franchisee shall also provide the City with a videocassette copy of every
Designated Municipal Event and Council Meeting other than those events taped by the City at
Government Center. In addition, Franchisee agrees to provide the City with time to advertise
municipally sponsored events during reasonable viewing periods with a value of not less than Ten
Thousand Dollars ($10,000) per year during each year of the term of this Agreement. The value of
said time shall be calculated based on the lowest rates franchisee charges to any advertiser.
4. The City may cablecast character generated information on a designated
Access Channel from the location designated at any time of its choosing.
5. Subject to availability, franchisee shall make its studio facilities available for
use by the City and area educational institutions for government and educational access
programming one time per month. However, notwithstanding anything to the contrary, the City may
request additional use of the studio facility and Franchisee agrees to negotiate in good faith to
provide such additional time.
6. At the City's option, Franchisee hereby agrees to provide to the City a grant
in the amount of forty thousand dollars ($40,000.00) in lieu of the equipment described on Exhibit
B. The Franchisee shall pay the full balance of the grant to the City no later than forty-five (45) days
of the Council approval of this Franchise.
7. Franchisee hereby agrees that the facilities, equipment, services,, and all other
support to be provided by Franchisee pursuant to this Section 16 constitute capital costs which are
required by the franchise to be incurred by Franchisee for public, educational, or governmental
21
access facilities within the meaning of Section 622(g)(2)(C) of the Communications Act, 47 U.S.C.
§ 542(g) (2) (C); that such grant does not constitute a franchise fee within the meaning of
Communications Act, State law, Ordinance No. 97-20 as amended by ordinance No. 98- I ~ , or this
Franchise Agreement; and that Franchisee hereby waives, and will not assert in any proceeding, any
claim to the contrary. The City and Franchisee fiather agree that the pass through to subscribers of
any such costs shall be amortized evenly over the term of this agreement.
Section 17. Cgmmereial Leased Access.
Franchisee shall provide commercial leased access channels as required by Federal law.
Section 18. Emergency I/se of Facilities.
A. Franchisee shall comply with all FCC roles on emergency use of facilities.
B. Franchisee shall provide standby power generating capacity at the cable system
headend and be capable of providing at least two (2) hours of emergency power supply. Standby
batter/es, capable of providing at least two (2) hours of emergency power, shall be installed in the
cable distribution plant.
Section 19. l,ock-~atDmJces.
Franchisee shall make available at reasonable charge to any residential subscriber, upon the
request of such subscriber, a "parental guidance" or "lock-out" device which shall permit the
subscriber, at his or her option, to eliminate the audio and visual transmissions from any channel
reception to the extent technically feasible.
Section 20. Close -d-d-d-d-d-d-d-d-d~it Cagtionin~g Impaired.
Franchisee shall make available at a reasonable charge to any hearing-impaired residential
22
subscriber, upon the request of such subscriber, any equipment beyond the subscriber's equipment
capable of decoding closed-circuit captioning information for the heating impaired.
Section 21. Line Extension Policy_,
A. Upon request and payment of all applicable charges, and provided that the requesting
person gives Franchisee access to his or her premises in order to furnish, maintain and continue to
offer service to that person, Franchisee shall, throughout the term of this Agreement, promptly
furnish, maintain, and continue to provide all services distributed over the system to any person at
his or her place of residence or commercial location where Franchisee's plant is the closest activated
plant to the location.
Section 22. ' ' 'tments.
A. At minimum, Franchisee shall comply with all FCC rules regarding cable home
wiring, as amended from time to time.
1. Upon commencement of service, and annually thereafter, Franchisee will
notify customers of their rights and options relating to cable home wiring, pursuant to applicable
law.
Section 23. Fxanchise Fee.
A. In consideration of the privilege granted herein to use and occupy the Streets to own,
construct, install, maintain and operate its cable system, Franchisee shall pay to the City a franchise
fee equal to either (1) five percent (5%) of its gross revenues as defined in Section 03 of Ordinance
No. 97-20 as amended by ordinance No. 98- I !; or (2) ifa change in law increases the maximum
allowable percentage to an amount greater than that specified in (1) above, that higher amount
23
provided however, that such increase is affirmatively imposed by the City after a public hearing at
which both the public and Franchisee are allowed to comment on the impact of the higher fee.
Franchisee will pay to the City such higher amount effective with the next available billing cycle in
which the higher charge may be placed on subscribers bills. Franchisee may calculate gross revenues
for purposes of determining the franchise fee owed in accordance with generally accepted accounting
principles (GAAP). Franchisee may subtract its actual bad debt expense determined in accordance
with Generally Accepted Accounting Principles for the relevant period from gross revenues,
provided, however, that any bad debt subsequently collected shall be included in gross revenues in
the period in which the bad debt is collected.
B. Franchisee shall pay the franchise fee to the City in full compliance with the
requirements set forth in Section 17 of Ordinance No. 97-20 as amended by ordinance No. 98- I [
C. The quarterly statements required to be filed by the Franchisee with the City pursuant
to Section 17 (D) of Ordinance No. 97-20 as amended by ordinance No. 98- ~ I shall be audited
and reported on by certified public accountant or certified as true and correct by a duly authorized
financial officer of Franchisee. Franchisee shall bear the cost of the preparation of such statements.
D. The acceptance by the City of any payment from Franchisee of the franchise fee shall
not constitute a release or an accord and satisfaction of any claim the City may have against
Franchisee for performance of any of its obligations under Ordinance No. 97-20 as amended by
ordinance No. 98- I [ , this Franchise Agreement, or local, State or Federal law, including, without
24
limitation, Franchisee's obligation to pay the proper franchise fee amount owed, subject, however,
to applicable statute of limitations, if any.
E. Following the expiration or the termination for any reason of its franchise, Franchisee
shall pay the franchise fee owed as of the date that its operations ceased within ninety (90) calendar
days of ceasing such operations. Such payment shall be accompanied by a gross revenues audit
report prepared by a certified public accountant showing the revenues received by Franchisee since
the end of the previous fiscal year.
F. Franchisee expressly agrees that: (i) the franchise fee payments to be made pursuant
to this Section shall not be deemed to be in the nature of a tax; (ii) such fi-anchise fee payments shall
be in addition to any and all taxes of a general applicability and not applicable solely to cable
television operations within the City or other fees or charges which Franchisee shall be required to
pay to the City or to any state or federal agency or authority, as required herein or by law, all of
which shall be separate and distinct obligations of Franchisee; (iii) Franchisee shall not have or make
any claim for any deduction or other credit of all or any part of the amount of said franchise fee
payments from or against any of said City taxes or other fees or charges of general applicability
which Franchisee is required to pay to the City, except as agreed herein or required by law; (iv)
Franchisee shall not apply nor seek to apply all or any part of the amount of said franchise fee
payments as a deduction or other credit from or against any of said City taxes or other fees or
charges of general applicability, each of which shall be deemed to be separate and distinct
obligations of Franchisee; (v) Franchisee shall not apply or seek to apply all or any part of the
amount of any of said taxes or other fees or charges of general applicability as a deduction or other
credit from or against any of its franchise fee obligations, each of which shall be deemed to be
separate and distinct obligations of Franchisee; and (vi) the franchise fee specified herein is the
minimum fair market value for the grant hereunder of a franchise for use of the Streets, including
all public easements, public rights-of-way and other entitlement to use, occupy or traverse public
property, for the purpose of operating a cable television system.
Section 24. R~gozls~aml~:o~.
Upon request of the City Manager or his designee, Franchisee shall furnish the City
Manager with all of the information as required under Sections 17 and 18 of Ordinance No. 97-20
as amended by ordinance No. 98- ~[ .
Section 25. RighLtoJmspext Financial Records and Eacil~.
A. Franchisee shall maintain a complete set of books and records, including plans,
contracts, engineering, accounting, financial, statistical, customer and service records as required
under Sections 17 and 18 of Ordinance No. 97-20 as amended by ordinance No. 98- I [ .
B. Pursuant to Ordinance No. 97-20 as amended by ordinance No. 98- 1[ , the City
shall have the right to inspect, at Franchisee's local office, the books and records specified in
subsection 25(A) hereof and such other records as may be required by the City to perform its
regulatory responsibilities under Ordinance No. 97-20 as amended by ordinance No. 98- } ~ or
applicable Federal law. The City agrees to carry out any such inspection during Franchisee's normal
business hours and upon reasonable notice. Access by the City to perform its regulatory
responsibilities to Franchisee's books and records shall not be denied on grounds that such books and
records contain proprietary or confidential information.
26
C. The City shall accord all books and records that it inspects under this Section the
degree of confidentiality such books and records are entitled to trader Federal and State law.
Franchisee's books and records shall not constitute public records, except to the extent required by
Federal and State law. To the extent Franchisee considers any books or records that it is required
to produce to be confidential or otherwise protected from public disclosure, Franchisee shall
designate which documents it views as protected and provide a written explanation to the City of the
legal basis for Franchisee's claim of protection.
D. Pursuant to Ordinance No. 97-20 as amended by ordinance No. 98- ~1 , the City
shall have the right to inspect Franchisee's facilities and property during Franchisee's normal
business hours and upon reasonable notice.
Section 26. ' ' .
A. Franchisee agrees to comply with each of the customer service requirements set forth
in Section 18 of Ordinance No. 97~20 as amended by ordinance No. 98- ~
B. Pursuant to Section 18(E) of Ordinance No.*' , Franchisee agrees to operate ~ts
local office, as defined in Section 18(B) of Ordinance No. q?'*~so as to be opened for access by
customers during Monday through Friday 8:30 a.m. - 5:00 p.m. and Saturday 9:00 a.m. - 12:00 noon,
at minimum. It is hereby recognized that all of Franchisees subscribers within the City are currently
served through bulk contracts. If, at any time during the term of this agreement, Franchisee serves
five hundred (500) or more subscribers within the City on an individual basis, upon written request
of the City Manager, Franchisee shall extend the aforestated office hours to include one evening per
week until 9:00 p.m.
27
Section 27. City Pureh~able System.
The City may, upon the recommendation of the City Manager and the approval of the
Council, acquire ownership of and operate Franchisee~s cable system in accordance with Section
31 of Ordinance No. 97-20 as amended by ordinance No. 98- [~
Section 28. Modification of Franchise.
Franchisee shall file an application with the City Manager for any m6dification of its
franchise pursuant to Section 9 of Ordinance No. 97-20 as amended by ordinance No. 98- I ~ . The
application shall fully conform with each of the requirements set forth in that Section that apply to
applications for modification.
Section 29. Txansle~.
A. Franchisee shall not directly or indirectly assign, sell or transfer its franchise, or any
right, title, or interest in same, this Franchise Agreement, or its cable system, nor shall any
ownership interest or any other form of control of Franchisee or any lawful successor be transferred,
assigned, directly or indirectly, without prior written notice to and approval of the City. In
determining whether to approve a transfer, the City will consider the factors set forth in Section
23 of Ordinance No. 97-20 as amended by ordinance No. 98- ~ I · However, in the event that an
entity having a controlling interest of the Franchisee desires to transfer the fi'anchise to another
affiliated entity whose ownership is controlled by the same entity, the City hereby agrees to
designate such transaction a pro forma transfer pursuant to Section 23(C) of Ordinance 97-20 as
amended by ordinance No. 98- 1[ .
B. Franchisee shall file an application to transfer its franchise or to transfer control of
28
Franchisee in full compliance with Sections 9 and 23 of Ordinance No. 97-20 as amended by
ordinance No. 98- ~ [
Section 30. Proced ' pproval oflransfer.
In addition to the requirements set forth in Sections 9 and 23 of Ordinance No. 97-20 as
amended by ordinance No. 98- [ { , the following procedures shall be followed by Franchisee in
requesting the City's consent to transfer its franchise or to transfer control of Franchisee.
A. At least one hundred twenty (120) calendar days prior to the contemplated effective
date of a transfer, Franchisee shall submit to the City Manager an application for approval of the
transfer. Such application shall include the following:
1. A statement of the reason for the contemplated transfer.
2. The name, address and telephone number of the proposed transferee.
3. A detailed statement of the corporate or other business entity organization of
the proposed transferee, including but not limited to the following:
(a) The names, business addresses, state of residence and country of
citizenship of all general parmers and/or corporate officers and directors of the proposed transferee.
(b) The names, business addresses, state of residence and country of
citizenship of all persons and entities having, controlling, or being entitled to have or control ten
percent (10%) or more of the ownership of the proposed transferee and the respective ownership
share of each such person or entity.
(c) The names and addresses of any subsidiary of the proposed transferee and
of any other business entity owning or controlling in whole or in part or owned or controlled in
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whole or in part by the proposed transferee.
(d) A detailed and complete financial statement of the proposed transferee,
prepared by a certified public accountant if audited statements were made, and if not, by a duly
authorized financial officer of the proposed transferee, for the three (3) fiscal years immediately
preceding the date of the request for transfer approval, and a letter or other acceptable evidence in
writing from a duly authorized officer of the proposed transferee setting forth a clear and accurate
description of the amount and sources of funding for the proposal transaction and its sufficiency to
provide whatever capital shall be required by the proposed transferee to construct, install, rebuild,
maintain and operate the proposed system in the City. If the corporate or business entity
organization of the proposed transferee has not been in existence for a fUll three (3) years, the
proposed transferee shall submit a certified financial statement for the period of its existence.
(e) A description of all previous experience of the proposed transferee in
operating cable television systems and providing cable television services or related or similar
services, including a statement identifying, by place and date, any other cable television franchise(s)
awarded to the proposed transferee, its parent, subsidiaries, or affiliates; the status of said
franchise(s) with respect to completion thereof; the total estimated cost of completion of such
system(s); and a sutnmary of the amount of the proposed transferee's and its parent's or subsidiary's
resources committed to the completion thereof.
(0 Upon request from the City Manager, a detailed pm forma financial plan
describing for each remaining year of the franchise, the projected number of subscribers, rates, all
revenues, operating expenses, capital expenditures, depreciation schedules, income statements, and
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statement of sources and uses of funds. Where the transfer is part of a larger transaction and such
information is not prepared for the single system in the City, the proposed transferee may provide
such information on a consolidated basis including the system in the City, but shall provide
information on the size of the City system, in terms of number of subscribers, relative to the
transaction, so that pro rata estimates may be made.
(g) A detailed description of the proposed plan of operation of the proposed
transferee, which shall include, but not be limited to the following:
(i) A detailed map indicating all new areas proposed to be served, a
proposed time schedule for the installation of all equipment necessary to become operational
throughout the new areas to be served, and the projected total cost for new construction of the
system.
(ii) A statement or schedule setting forth all proposed products and
services to be made available and classifications of rates and charges to be made against subscribers
and all rates and charges and to each of any said classifications, including installation charges,
service charges, equipment charges, special, extraordinary, or other charges.
4. Upon request, the proposed purchase price of the cable system, and the terms
and conditions of the proposed transfer.
Section 31. RenewaLoLF_r an ch is e.
The provisions of Ordinance No. 97-20 as amended by ordinance No. 98- I [ shall govern
any and all proceedings to renew this franchise. If Franchisee decides to initiate a formal renewal
process in accordance with Section 626(a)-(g) of the Communications Act, 47 U.S.C. § 546(a)-(g),
33_
it and the City must comply with each of the requirements in the Communications Act as well as the
additional requirements set forth in Section 9 and 22 of Ordinance No. 97-20 as amended by
ordinance No. 98- II to the extent such requirements are not prohibited by applicable law.
Section 32. Rates.
A. Nothing in Ordinance No. 97-20 as amended by ordinance No. 98- I I or this
Franchise Agreement shall prohibit the City from regulating rates for cable service, installation,
disconnection, and equipment rental to the full extent permitted by and consistent with State and
Federal law.
B. Franchisee further agrees that it shall not increase rates or charges for basic cable
service, installation, disconnection, or equipment rental without at least thirty (30) days prior notice
to subscribers and the City.
C. Pursuant to Section 20 of Ordinance No. 97-20 as amended by ordinance No. 98-
, Franchisee shall at all times charge nondiscriminatory rates throughout the City.
D. Franchisee shall not engage in predatory pricing or any other anti-competitive
business practice as defined by applicable law.
Section 33.
A. Pursuant to Section 12 of the Ordinance, Franchisee shall provide the City a security
fimd or in the alternative a corporate guarantee or letter of credit in the amount of $25,000 as security
for the faithful performance of all provisions of the Franchise Agreement, Ordinance No. 97-20 as
amended by ordinance No. 98- I I of the City, and all applicable State and Federal law. If such
security fund or letter of credit is not furnished to the City within sixty (60) days of the date of
32
Council resolution approving the grant of the Franchise, then Franchisee shall pay to the City
Manager a fine in the amount of Five Hundred Dollars ($500) per day, beginning on the 61st day,
until the date on which the security fund or letter of credit is received by the City. In the event said
guarantee or letter of credit is not received within sixty (60) days of the date after the Comamission
resolution approving the grant of the Franchise, this Franchise Agreement and the grant of the
Franchise may be revoked pursuant to the procedures set forth in Ordinance 97-20 as amended by
ordinance No. 98- I 1
B. If thirty (30) calendar days after written notice Franchisee fails to pay to the City any
fees or taxes due and unpaid, or any liquidated damages, damages, costs or expenses that the City
has incurred by reason of any act, omission or default of Franchisee in connection with this
Franchise Agreement or Ordinance No. 97-20 as amended by ordinance No. 98- ~ ~ , the City may
immediately withdraw that amount, with interest and any costs, fi.om the security fund or make such
equivalent claim against the guarantee. Upon such withdrawal or claim, the City shall notify
Franchisee in writing of the amount and date of the withdrawal.
C. Within thirty (30) calendar days after notice to Franchisee that an amount has been
withdrawn by the City fi.om the security fund, Franchisee shall restore the security fund to its
original amount. If Franchisee fails to restore the security fund to the original amount within that
thirty (30) calendar day period, such failure shall be considered a material breach of this Franchise
Agreement and a violation of Ordinance No. 97-20 as amended by ordinance No. 98- I [ , and shall
constitute grounds for revocation of the franchise or other enforcement action by the City.
D. Where a corporate guarantee or letter of credit is provided in lieu of a security fund,
33
Franchisee shall pay the City the amounts of all claims against said guarantee within thirty (30)
calendar days after notice of such claim, maintaining the guarantee at its original amount. If
Franchisee fails to pay the City the amount of any claim within thirty (30) days after notice to the
Franchisee of the claim paid or fails to restore the guarantee to its original amount, such failure may
be considered a material breach of this Franchise Agreement and a violation of Ordinance No.97-20
as amended by ordinance No. 98- I [ , and shall constitute grounds for revocation of the franchise
or other enforcement action by the City.
E. Franchisee is entitled to return of the balance of the security fund that remains
following any other form of expiration of the franchise, including denial of renewal, provided that
there is no outstanding default and less any unpaid amounts owed to the City by Franchisee and any
amount that is the subject ora pending dispute between the City and Franchisee.
F. If the Franchise terminates for reasons other than revocation, any security fund or
corporate guarantee will be maintained by the Franchisee for one (1) year from the date of
termination and the remaining fund will be returned to Franchisee one (1) year from the termination
date of the Franchise, provided there is no outstanding default or unpaid amounts owed to the City
by Franchisee.
G. The fights reserved to the City under this Section are in addition to all other rights
of the City, whether reserved in this Franchise Agreement or in Ordinance No. 9%20 as amended
by ordinance No. 98- [ [, or authorized by other law, and no action, proceeding or exercise of a
right with respect to the security fund will affect any other fight the City may have.
Section 34. En fo r c ement~Remedies.
34
A. LiqnidatedDama~. Because the City may suffer damages from any violation by
Franchisee of this Agreement or of Ordinance No. 97-20 as amended by ordinance No. 98- I [ ,
which damages may be difficult to quantify, the City and Franchisee agree to the following schedule
of liquidated damages:
1. For failure to install, operate and maintain the cable system as required by
Sections 12(A) and 13(A) hereof, unless the City specifically approves a delay caused by the
occurrence of conditions beyond Franchisee's control. Franchisee shall pay to the City One
Thousand Dollars ($1,000) per day for each day or part thereof, the deficiency continues.
2. For material failure to provide data, documents, reports or information in a
timely manner as required by this Franchise Agreement or by Ordinance No. 97-20 as amended by
ordinance No. 98- II or as requested by the City consistent with FCC rules and regulations and
all other applicable law, Franchisee shall pay Two Hundred Fifty Dollars ($250.00) per day, or part
thereof, that each violation occurs or continues. For non-proprietary information, a violation would
be deemed to have occurred when Franchisee fails to provide information by the date requested by
the City. If the information requested is considered proprietaW by a court of competent jurisdiction,
no fine shall be imposed. For proprietary information, a violation would be deemed to have occurred
if the City disagrees with the Franchisee's explanation as to why the material is proprietary and a
final decision of a court of competent jurisdiction upholds the City's determination.
3. For failure to comply with any other provision of Ordinance No. 97-20 as
amended by ordinance No. 98- I I , or failure to comply with any other material provision of this
3S
Franchise Agreement other than those specifically referenced above, or failure to comply with any
lawful order of the City within thirty (30) days of receipt of notice of such non-compliance fi.om the
City, Franchisee shall pay Two Hundred Fifty Dollars ($250) per day for each day, or part thereof,
that such non-compliance continues.
B. Before assessing liquidated damages against Franchisee, the City shall give
Franchisee written notice of the alleged violation and its intention to assess such damages, which
notice shall contain a description of the alleged violation. Following receipt of such notice,
Franchisee shall cure or commence to cure and the Franchisee and the City shall have a thirty (30)
day period during which time Franchisee and the City shall make good faith reasonable efforts to
resolve the dispute in question. If the dispute is not resolved in that thirty (30) day period, the City
may after a public hearing collect liquidated damages owed, either through draw-down of the
security fund as provided in Section 33 of this Agreement, or through any other means allowed by
law provided however that no fines or liquidated damages shall be assessed while litigation is
pending in a court of competent jurisdiction.
C. P~e3tocation ~r Termination of Fraxw.,hise. Franchisee's franchise is subject to
revocation pursuant to Section 24 of Ordinance No. 97-20 as amended by ordinance No. 98~ ! I
for any of the reasons set forth therein. In the event the City exercises its right to revoke the
franchise, the procedures set forth in Section 24 of Ordinance No. 97-20 as amended by ordinance
No. 98- I ~ shall apply.
Section 35. Area w~ide-ln terconn eetion.
A. The City may request Franchisee to interconnect with any or all other cable systems
36
located within the City or serving subscribers within the City. Intercormection of systems shall
permit interactive transmission and reception of program material, and may be done by direct cable
connection, microwave link, satellite, or other appropriate method.
B. Upon receiving the request of the City to interconnect with cable systems, Franchisee
shall, where it does not own the affected system or systems, immediately initiate good faith
negotiations with the operators of the other affected system or systems in order that costs for
construction and operation of the interconnection link may be shared equitably among the systems.
Franchisee shall report to the City the results of such negotiation no later than thirty (30) days
after the City's request. Where Franchisee owns the affected system, Franchisee shall report to the
City on the timing, method and cost of interconnection within thirty (30) days of the City's request.
C. The Franchisee may be granted reasonable extensions of time to interconnect. The
City shall rescind its request to interconnect upon petition by the Franchisee to the City, if the City
finds that (1) the Franchisee has negotiated in good faith and has failed to obtain an approval from
the system or systems of the proposed interconnection; or (2) the cost of the interconnection would
be unreasonably high.
D. Franchisee shall make all reasonable efforts to cooperate with any designated access
organization, intcrconnection corporation, regional interconnection authority or City, county,
state or federal regulatory agency which may be hereafter established for the purpose of regulating,
financing, or otherwise providing for the interconnection of cable systems beyond the
boundaries of the franchise area.
Section 36. Written_Notice .of Acceptance.
37
Within thirty (30))days of the Council resolution approving the grant of this franchise,
Franchisee shall provide the City Manager with written acceptance of all the terms and conditions
of this Franchise Agreement. Franchisee's failure to comply in full with this Section shall render this
Franchise Agreement and the franchise null and void with no further action by the City, unless the
City Manager agrees in writing to extend such period.
Section 37. ' ' part.
This Franchise Agreement may be executed in counterpart.
38
IN WITNESS OF THE FOREGOING, the l~arties have set their hands and seals the day
and year first written above.
WITNESSES: CITY OF AVENTURA, FLORIDA, a
municipal corporation of the State
of Florida
AS ~ "~ITY" '-' ERIC M. SOROKA
CITY MANAGER
AS TO"
ATTEST: ENDORSED AS TO FORM AND LEGALITY
FOR THE USE A~ND RELIANCE OF THE
CITY OF AVENTURA, FLORDA ONLY
TERESA M. SMITH CITY ATTORNEY
CITY CLERK
AGREED TO AND ACCEPTED BY
FRANCHISEE:I~6RIth~¢~~ X~ _A~N~D X~4~X·
WITNESSES: COIqCAST CABLEVISIOI~ OF LE, INC.
AS TO "FRANCHISEE"
-- ~/S ~O "FRA~qCHISE]~J
EXHIBIT"A"
Government Center
2999 N.E. 191st Street
Suite 500
Aventura, Florida 33180