98-16 ORDINANCE NO. 98-16
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
NARRAGANSETT SOUTH FLORIDA CATV LIMITED
PARTNERSHIP (CABLEVlSlON COMMUNICATIONS)
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
Narragansett south Florida CATV Limited Partnership (Cablevision Communications)
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 Vice Mayor Cohen, who moved its
adoption on first reading. This motion was seconded by Commissioner Rogers-Libert
and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger yes
Commissioner Jay R. Beskin yes
Commissioner Harry Holzberg yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Ken Cohen yes
Mayor Arthur I. Snyder yes
Ordinance No. 98- t__~6
Page 2
The foregoing Ordinance was offered by co~±ss±ot~e~: ~.o~;e~:s-~,±be~:t: ,
who moved its adoption on second reading. This motion was seconded by
Commissioner Beskin , and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger ,/es
Commissioner Jay R. Beskin yes
Commissioner Harry Holzberg yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Ken Cohen yes
Mayor Arthur I. Snyder yes
PASSED AND ADOPTED on first reading this 5th day of May, 1998.
A~THUR/~/~~~I~SNY~¢R,~AYOR
ATTEST: ~ ~ -
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
LE~BOW~:rz & J~SSOCIiTES, P.A.
SUITE 14S0
JANE M. FAGAN ONE SOL*THEAST THIRD AVENUE TELECOpIER (305) 530-9417
ILA I. FELD
M~AMI, FLORIDA 33~3I~~7~5 E MAIL Broadlaw@aoLcom
EDWARD
May 7, 1998
Via Fedex
Eric M. Soroka, City Manager
City of Aventura
Government Center
2999 N.E. 191~ Street
Suite 500
Aventura, FL 33180
Re: City of Aventura, Florida- Cablevision
Cable Television Franchise A,qreement
Dear Eric:
Enclosed please find an unmarked copy of the Franchise Agreement between the
City of Aventura and Cablevision, scheduled for Second Reading on May 19, 1998.
Please note that the revisions have been made from the previous draft as listed below.
1. Page 1, correction to scrivener's error correcting franchisee's
corporate name.
2.Page 21, per previous agreement with franchisee, insertion
of "use of best efforts".
3. Page 22, correction to scrivener's error with respect to
punctuation of number of advertising spots.
Mr. Eric M. Soroka
May 7, 1998
Page 2
Please do not hesitate to call should you have any questions with respect to this
matter.
Sincerely,
Ila L. Feld
ILF/db
Enclosures
(3 copies of Franchise Agreement)
cc: Anthony Bello, Cablevision
David Wolpin, Esq.
(via Fedex)
C:~25~Aventura\General~Soroka.05.07.98.wpd
LEIBOWITZ & .~$$OCI~TES,
SUITE 1450, ONE SOUTHEAST THIRD AVENUE, I~IAMI~ FLORIDA 33131-1715 · TELEPHONE (305) 530-1322
DRAFT
FOR DISCUSSION PURPOSES ONLY
Draft Date: 05/07/98
CITY OF AVENTURA, FLORIDA
FRANCHISE AGREEMENT
TABLE OF CONTENTS
Section Page
Section 1. Definitions ...................................................... 3
Section 2. Grant of Franchise ............................................... 4
- Section 3. Term of Franchise ................................................ 5
Section 4. Non-Exclusive Franchise ........................................... 5
Section 5. Franchise Subject to Communications Act, State Law and Ordinance ........ 5
Section 6. Franchisee Subject To Other Laws, Police Power 6
Section 7. Reservation of Rights ............................................. 6
Section 8. Insurance ....................................................... 7
Section 9. Indemnification of the City ......................................... 7
Section 10. Construction Bond ................................................ 9
Section 11 Use of Streets ................................................... 9
Section 12. Minimum System Facilities and Services ............................. 11
Section 13. Technological Improvements to System .............................. 16
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FOR DISCUSSION PURPOSES ONLY
Section 14. Technical Standards ............................................. 17
Section 15. Proof of Performance Tests ....................................... 18
Section 16. Access Channels and Facilities ..................................... 19
Section 17. Commercial Leased Access ........................................ 24
Section 18. Emergency Use of Facilities ....................................... 24
Section 19. Lock-out Devices ............................................... 24
Section 20. Closed-circuit Captioning for the Hearing Impaired .................... 24
Section 21. Line Extension Policy ............................................ 25
Section 22. Cable Home Wiring Commitments .................................. 25
Section 23. Franchise Fee ..................................................... 25
Section 24. Repol~s and Records ............................................. 28
Section 25. Right to Inspect Financial Records and Facilities ...................... 28
Section 26. Customer Service Requirements .................................... 29
Section 27. City Purchase of Cable System ..................................... 29
Section 28. Modification of Franchise ......................................... 29
Section 29. Transfer of Franchise ............................................ 30
Section 30. Procedures for Requesting Approval of Transfer. 30
Section 31. Renewal of Franchise ............................................ 33
Section 32. Rates ......................................................... 34
~.5.
FOR DISCUSSION PURPOSES ONLY
Section 33. Security Fund .................................................. 34
Section 34. Enforcement Remedies ........................................... 37
Section 35. Area wide-lnter¢onnection ........................................ 39
Section 36. Written Notice of Acceptance ...................................... 40
Section 37. Execution in Counterpart ......................................... 40
iii
FOR DISCUSSION PURPOSES ONLY
CABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN THE CITY OF AVENTURA, FLORIDA AND RIFKIN/
NARRAGANSETT SOUTH FLORIDA CATV LIMITED PARTNERSHIP
A FRANCHISE AGREEMENT ENTERED INTO BETWEEN THE
CITY OF AVENTURA, FLORIDA, AND
RIFKIN/NARRAGANSETT SOUTH FLORIDA CATV LIMITED
PARTNERSHIP d/b/a CABLEVISION COMMUNICATIONS,
PURSUANT TO 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 ACCOMPANYING 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 RIFKIN/NARRAGANSETT South Florida
CATV Limited Partnership d/b/a Cablevision Communications CCablevision").
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- , providing for the issuance
and regulation of cable television franchises for, and the installation, construction and operation of,
cable television systems within the City; and
WHEREAS, Cablevision desires to obtain a franchise to construct, install, maintain, and
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FOR DISCUSSION PURPOSES ONLY
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 Cablevision's application in light of the requirements
of Federal and State law and the Ordinance, and has conducted public hearings concerning
Cablevision's request and application; and
WHEREAS, the Council has relied on Cablevision's representations both oral and written
and has considered all information presented to it by Cablevision, 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 of a nonexclusive franchise to Cablevision 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 Cablevision 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 Cablevision entering into a franchise agreement;
and
WHEREAS, the City and Cablevision have reached agreement on the terms and conditions
of such a franchise agreement.
FOR DISCUSSION PURPOSES ONLY
NOW, THEREFORE, in consideration of the City's grant of Cablevision's franchise to own,
construct, install, maintain and operate a cable system within the City, and to use and occupy the
S~reets of the City for that purpose, and in consideration of Cablevision's promise to provide cable
service to residents of thc City pursuant to the Ordinance and under the terms and conditions set
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 FOLLOWS:
Section 1. Definitions.
.... Except as otherwise provided herein, the definitions in Section $ of Ordinance No.
97420 as amended by Ordinance No.98- of the City of Aventura, Florida, shall govern this
Franchise Agreement. In addition, the following definitions shall apply:
A. Ordinance shall mean Ordinance No. 97-20 and all amendments thereto, including
but not limited to, of the City of Aventura, Florida and as said Ordinance has on may hereinafter
be amended.
B. Franchisee or Cablcvision shall mean RIFKIN/NARRAGANSETT SOUTH
FLORIDA CATV LIMITED PARTNERSHIP and its lawful and permitted successors, assigns and
transferees pursuant to Sections 29 and 30 of this Agreement and Ordinance No. 97-20 as amended
by Ordinance No.98-__ of thc City of Aventura, Florida.
C. Franchise Area shall mean thc entire area within the legal boundaries of the City, and
FOR DISCUSSION PURPOSES ONLY
such other areas as may hereinafter be annexed or incorporated by the City during the term of the
franchise.
D. Notice 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 thc 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. Grant of Franchise.
A. Subject to the terms of this Franchise Agreement and Ordinance No. 97-20 as
amended by Ordinance No.98- , 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. However, it is hereby agreed that Intemet services (i.e. services provided via the
utilization of Intemet protocol) and data transmission services provided via the cable system shall
be considered a cable service for the purpose of this agreement and Ordinance No. 98- and
subject to all terms and conditions herein, including but not limited to Section 23, unless otherwise
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FOR DISCUSSION PURPOSES ONLY
prohibited by applicable federal, state or local law.
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 contract 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. Term of Franchise.
This franchise shall be for a period of ten (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-__ of the City for a grant of a franchise to become effective,
except to the extent such requirements are modified or waived as expressly set forth herein.
Section 4. Non-Exclusive Franchise.
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. Franchise Subiect to Communications Ach State Law and Ordinance.
A. This Franchise Agreement is subject to and shall be govemed by all terms,
5
FOR DISCUSSION PURPOSES ONLY
conditions and provisions of thc 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 governed by all terms,
conditions and provisions of Ordinance No. 97-20 as amended by Ordinance No.98- 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. Franchisee Sub,iect To Other 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 exercise of such power in any
way.
Section 7. Reservation of 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 the right to adopt and incorporate by reference herein, by
ordinance, any additional terms, conditions, or regulations as it shall find necessary in the lawful
exercise of its powers as granted by the Constitution of the State of Florida. Additional regulations
adopted by the City shall be incorporated into this Franchise Agreement and complied with by
6
FOR DISCUSSION PURPOSES ONLY
Franchisee within thirty (30) days of the date of adoption of such additional regulations.
C. Thc City reserves thc right to acquire, purchase, own and/or operate a cable system
to thc 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- in such a
manner as to comply with each and every requirement of that Section.
B. The Franchisee shall provide proof to thc City Manager of compliance with this
Section no later than sixty (60) days from the date of the Council resolution approving thc 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 franchise null and void
without further action by the City.
Section 9. Indemnification of the City.
Pursuant to Section 11 of Ordinance No. 97-20 as amended by Ordinance No.98-
Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its
officials, boards, commissions, commissioners, agents, and employees, against any and all claims,
suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and
expenses arising out of the construction, maintenance or operation of its cable system, the conduct
of Franchisee's business in the City, or in any way arising out of the Franchisee's enjoyment or
exercise of a franchise granted hereunder, regardless of whether the act or omission complained of
7
FOR DISCUSSION PURPOSES ONLY
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,
author/zed 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, fh-m or corporation, or the violation
or infringement of any copyright, trade mark, trade name, service mark or patent, or of any other
fight 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 and any amendments thereto 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 belief 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.
8
FOR DISCUSSION PURPOSES ONLY
Section 10. Construction Bond.
Pursuant to Section 13 of Ordinance No. 97-20, 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 furnished 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 distzibution facilities shall be installed and
maintained underground to the extent required by Section 21(I) of Ordinance No. 97-20.
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.
9
FOR DISCUSSION PURPOSES ONLY
97-20.
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 within any public Stxeet for the reasons set forth in Section 21(B) of Ordinance No. 97-
20.
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.. 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.
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FOR DISCUSSION PURPOSES ONLY
H. If the 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. In the event that they City receives reimbursement from Metro-
Dade County for such work, it is hereby agreed that Franchisee's payment obligation to the City
shall be reduced by that amount received by the City from the County.
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. Minimum System Facilities and Services.
A. Pursuant to Section 14 of Ordinance No. 97-20 as amended by Ordinance No. 98-
, Franchisee's cable system shall, at a minimum, (1) be able to pass frequencies 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 channels; (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 this 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
FOR DISCUSSION PURPOSES ONLY
Agreement. 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 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 et seq., 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. § 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
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FOR DISCUSSION PURPOSES ONLY
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 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), including, but not limited to those technical standards implemented by franchisee,
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 fmc educational program hstings 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
curriculum 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
13
FOR DISCUSSION PURPOSES ONLY
provided, upon request.
5. Within twelve months after Franchisee or any parent, affiliate or subsidiary
makes an on-line service for personal computers commercially available on a system serving Dade,
Broward or Palm Beach Counties, Franchisee will, upon request by the City Manager, provide
schools within the City with at minimum one free connection per floor to such on-line service. At
a minimum, such on-line service will provide unlimited free access to the Internet. Additional cable
modems shall be provided by Franchisee at Franchisee's actual cost or less. Operational support
and services (for example, assisting connected schools in setting up and maintaining reliable
Intemet connections), will be provided to connected schools, upon request. In addition, no less than
once per year Franchisee will conduct or sponsor a training program in the Dade 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 one free connection per
floor to on-line service. At a minimum, such on-line service will provide free unlimited access to
the Internet. Additional cable modems shall be provided at Franchisee's actual cost or less.
Operational support and services will be provided to the City upon request.
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.
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FOR DISCUSSION PURPOSES ONLY
D. All video signals received for transmission that contain closed circuit captioning
information for the heating 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 aff'n:mative, 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
conformity with such laws.
G. 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, or its parent, any subsidiary
or affiliate to any other community, in Dade or Broward County.
H. In lieu of being responsible for wiring each and every floor and installing all
facilities necessary for live cable-casting from the new City complex, Franchisee agrees to provide
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the City with a financial grant in the amount equivalent to the cost incurred by the franchisee
responsible for the aforestated wiring and installation, calculated on a pro-rata per subscriber basis.
I. Upon the request of the City Manager, the Franchisee shall lease, on the same terms
and conditions as provided to any other franchising authority or community served by the same
system, 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 puq?oses 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 interconnect 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. Technological Improvements to System.
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 any City and any subscribers in Dade
and Broward County. For purposes of this Section, Franchisee shall not be obligated to offer within
the City any technology being listed among less than five hundred (500) subscribers in another
3_6
FOR DISCUSSION PURPOSES ONLY
community.
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, but not mom than annually, report
in writing to the City Manager, in a form satisfactory to the City Manager, on technological
advances and the availability of new and enhancexl 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 or system as defined in or any other
MSO, including a list of each jurisdiction in which new technologies have been used or where cable
television systems are being upgraded to include new technologies and provide new services, and
an assessment of the costs associated with implementing the new technologies with 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 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 from ten (10) years to fifteen (15) years from the effective date hereofi
Section 14. Technical Standards.
Franchisee shall maintain and operate its cable system, at a minimum, in full compliance
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FOR DISCUSSION PURPOSES ONLY
with FCC regulations and Ordinance No. 97-20 as amended by Ordinance No.98- . 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 cons~uction, 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. Proof of Performance Tests.
Franchisee shall perform, at its expense, the proof of performance tests as required by
Section 15 of Ordinance No. 97-20 and amendments thereto 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. Franchisee will provide the City Manager at
least ten (10) days advance written notice of when a proof of performance test is scheduled so that
FOR DISCUSSION PURPOSES ONLY
the City may have an observer present.
Section 16. Access Channels and Facilities.
A. Access Channel Capacity. 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 City Council meetings taped, or at the City Manager's discretion, live on the cable
.... system and provide tapes of such meetings to the City Manager, other cable operators or residential
developments as requested by the City at cost.
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.
FOR DISCUSSION PURPOSES ONLY
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 Dade County 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
pursuant to Section 16 hereof. The Government Center and the other upstream origination locations
designated pursuant to Section 16 hereof 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 a location designated by the City. In the alternative
Franchisee shall interconnect its system with any system carrying live programming so as to allow
distribution of the live signal to all of Franchisees subscribers in the City.
FOR DISCUSSION PURPOSES ONLY
6. In addition to the foregoing provisions, in the event that Franchisee owns or
operates a production facility in Dade or Broward County, Franchisee agrees to provide the City
with the technical ability to transmit programming over the access channels to subscribers within
the City directly from any such facility.
7. Franchisee agrees that all access channels will be provided to subscribers on
the system as a part 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
or will include access channel programming listings in any monthly program guide sent to
subscribers, provided that information concerning access channel programming is provided to or
becomes known to Franchisee within the time that other programmers are required to provide such
information for inclusion in such program listings or program guide.
B. Access Facilities, Equipment and Support.
1. Franchisee, at Franchisee's sole expense, shall use its best efforts to obtain
agreements from other cable Franchisees and shall provide all facilities, equipment, cabling and
trained personnel necessary to interconnect Franchisees system with all other Franchise's systems
in the City so as to permit both live and delayed cablecast of all City Council meetings and other
City or public meetings, events and programs held at a location to be designated by the City, to all
subscribers in the City. The system electronic and distribution facilities and equipment and cabling
provided by Franchisee shall be State-of-the-Art and of sufficient quality and performance
23.
FOR DISCUSSION PURPOSES ONLY
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 when
transmitted downstream to subscribers, including any such standards as may be adopted or amended
during the term of this Franchise Agreement and to provide comparable video and audio signal
quality to the programming provided generally by the Franchisee on the system when transmitted
down-stream to subscribers. It is understood that Franchisee shall be responsible for maintaining
all such equipment in good repair and operational condition, at Franchisee's expense.
Further, to the extent required to maintain State-of-the-Art production quality, the
City reserves the right to require Franchisee to replace all such facilities, equipment and cabling.
2. In addition to the City Council meetings, the City Manager may designate
up to a maximum of twelve (12) municipal or civic events ("Designated Municipal Event") per year
that are no longer than three hours each that Franchisee shall cablecast live on the First Access
Channel. The City Manager shall notify Franchisee in writing of each such Designated Municipal
Event, and its place and time, no less than two (2) weeks before each such event is held. Franchisee
shall periodically replay each such Designated Municipal Event on the Access Channel, and
subscribers shall be informed of the replay schedule as provided in Section 16 hereof. Upon five
(5) days prior notice, Franchisee shall further replay such Designated Municipal Events at the times
requested by the City Manager. Franchisee shall also provide the City with a videocassette copy
of every Designated Municipal Event and Council Meeting. In addition, Franchisee agrees to
provide the City with at minimum 500, :30 second spots to advertise municipally sponsored events
22
FOR DISCUSSION PURPOSES ONLY
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
on published rate card.
3. The City may cablecast character generated information on a designated
Access Channel from the location designated at any time of its choosing.
4. Subject to availability, franchisee shall make any studio facilities, that it
operates in Dade and Broward County during the term of this agreement as well as a remote
production truck, available for use by the City and area educational institutions for non-commercial
government and educational access programming.
5. Franchisee hereby agrees to provide to the City a grant in the amount of Ten
Thousand Dollars ($10,000) to be paid to the City no later than within forty-five (45) days of the
Council approval of this Franchise, plus an additional payment of Four Dollars and Sixteen Cents
($4.16) per subscriber for each additional subscriber over 2,404 subscribers added to the system.
Such additional payment shall be remitted to the City annually and accompanied by a certified
statement of the number of subscribers in the City served by the Franchisee.
6. Franchisee hereby agrees that the facilities, equipment, services,, and all
other support to be provided by Franchisee pursuant to Section 12(I) and this Section 16 constitute
capital costs which are required by the franchise to be incurred by Franchisee for public,
educational, or governmental 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
23
FOR DISCUSSION PURPOSES ONLY
fee within thc mco~ning of Communications Act, State law, Ordinance No. 97-20 and amendments
thereto, or this Franchise Agreement; and that Franchisee hereby waives, and will not asser~ in any
proceeding, any claim to the contrary.
Section 17. Commercial Leased Access.
Franchisee shall provide commercial leased access channels as required by Federal law.
Section 18. Emergency Use of Facilities.
A. Franchisee shall comply with all FCC rules 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
batteries, capable of providing at least two (2) hours of emergency power, shall be installed in the
cable distribution plant.
Section 19. Lock-out Devices.
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. Closed-circuit Captioning for the Hearim, Impaired.
Franchisee shall make available at a reasonable charge to any hearing-impaired residential
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.
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FOR DISCUSSION PURPOSES ONLY
Section 21. Line Extension Policy.
A. Upon request and payment of all applicable charges, and provided that thc 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 thc system to any person at
his or her place of residence or commercial location where Franchisee's plant is thc closest
activated plant to thc location.
Section 22. Cable Home Wiring Commitments.
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. Franchise 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- ; or (2) if a change in law increases the maximum
allowable percentage to an amount greater than that specified in (1) above, that higher amount
provided however, that such increase is aff'u'matively imposed by the City after a public hearing at
25
FOR DISCUSSION PURPOSES ONLY
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 shall 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 (GAAP) 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.
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- shall
be audited and reported on by certified public accountant or certified as tree 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 and amendments
thereto, this Franchise Agreement, or local, State or Federal law, including, without limitation,
Franchisee's obligation to pay the proper franchise fee amount owed, subject, however, to
26
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FOR DISCUSSION PURPOSES ONLY
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 franchise 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
27
FOR DISCUSSION PURPOSES ONLY
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. Reports and Records.
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. Right to Inspect Financial Records and Facilities.
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-__
B. Pursuant to Ordinance No. 97-20 as amended by Ordinance No. 98- ., the City
shall have the fight 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 and amendments thereto 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
28
FOR DISCUSSION PURPOSES ONLY
proprietary or confidential information.
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 under 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, 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. Customer Service Requirements.
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-
Section 27. City Purchase of Cable 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.
Section 28. Modification of Franchise.
Franchisee shall file an application with the City Manager for any modification of its
franchise pursuant to Section 9 of Ordinance No. 97-20 as amended. The application shall fully
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FOR DISCUSSION PURPOSES ONLY
conform with each of the requirements set forth in that Section that apply to applications for
modification.
Section 29. Transfer of Franchise.
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. However, in the event that an entity having a controlling
interest of the Franchisee desires to transfer the franchise 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.
B. Franchisee shall file an application to transfer its franchise or to transfer control of
Franchisee in full compliance with Sections 9 and 23 of Ordinance No. 97-20 as amended by
Ordinance No. 98-
Section 30. Procedures for Requesting Approval of Transfer.
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
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FOR DISCUSSION PURPOSES ONLY
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 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
3.~.
FOR DISCUSSION PURPOSES ONLY
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 certit-~ed 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 summary 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 pro 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
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.
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FOR DISCUSSION PURPOSES ONLY
(g) A detailed description of the proposed plan of operation of the proposed
transferee, which shall include, but not be limited to thc 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 thc new areas to be served, and the projected total cost for new construction of thc
system.
(ii) A statement or scbedulc 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 pumhase price of the cable system, and the terms
and conditions of the proposed transfer. All such discussions shall be deemed confidential and not
become a public record to the extent and pursuant to procedures of applicable federal and state law.
Section 31. Renewal of Franchise.
The provisions of Ordinance No.97-20 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), 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 to the extent such requirements are not
prohibited by applicable law.
33
FOR DISCUSSION PURPOSES ONLY
Section 32. Rates.
A. Nothing in Ordinance No. 97-20 amendments thereto 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, 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. Security Fund.
A. Pursuant to Section 12 of the Ordinance, Franchisee shall provide the City a security
fund or in the alternative a bond or letter of credit, as approved by the City Manager, in the
amount of Twenty Five Thousand Dollars ($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-
__ of the City, and all applicable State and Federal law. If such security fund or corporate
guarantee is not furnished to the City within sixty (60) days of the date of 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 6Pt day, until the date on which
34
FOR DISCUSSION PURPOSES ONLY
the security fund or corporate guarantee is received by the City. In the event said guarantee is not
received within sixty (60) days of the date after the Commission resolution approving the grant of
the Franchise, this Franchise Agreement and the grant of the Franchise will become null and void
without further action by the City.
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 or amendments thereto, the City may immediately
withdraw that amount, with interest and any costs, from 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 from 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, and shall constitute grounds for
revocation of the franchise or other enforcement action by the City.
D. Where a bond or letter of credit is provided in lieu of a security fund, Franchisee
shall pay the City the amounts of all claims against said bond or letter of credit within thirty (30)
calendar days after notice of such claim, maintaining the security notwithstanding the form at its
35
FOR DISCUSSION PURPOSES ONLY
original amount. If Franchisee falls to pay the City the amount of any claim within thirty (30) days
after notice to the Franchisee of the claim paid or falls 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 and amendments thereto, and shall constitute grounds for
revocation of the franchise or other enforcement action by the City.
E. The security fund or an equivalent amount shall become the property of the City in
the event the franchise is revoked. 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 or unpaid amounts owed to the City by
Franchisee.
F. If the Franchise terminates for reasons other than revocation, any security fund, bond
or letter of credit 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 rights 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. 97-20 and
amendments thereto, or authorized by other law, and no action, proceeding or exercise of a right
with respect to the security fund will affect any other right the City may have.
DRAFT
FOR DISCUSSION PURPOSES ONLY
Section 34. Enforcement Remedies.
A. Liquidated Damages. Because the City may suffer damages from any violation by
Franchisee of this Agreement or of Ordinance No. 97-20 and amendments thereto, 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 con~xol. 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 and
amendments thereto, 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 proprietary 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.
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FOR DISCUSSION PURPOSES ONLY
3. For failure to comply with any other provision of Ordinance No. 97-20 and
amendments thereto, or failure to comply with any other material provision of this 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 from 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 collect liquidated damages owed, either through draw-down of the security fund as provided
in Section 11 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. Revocation or Termination of Franchise. Franchisee's franchise is subject to
revocation pursuant to Section 24 of Ordinance No. 97-20 as amended 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 shall apply.
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FOR DISCUSSION PURPOSES ONLY
Section 35. Area wide-Interconnection.
A. The City may request Franchisee to interconnect with any or all other cable systems
located within the City or serving subscribers within the City. Interconnection of systems shall
permit interactive transmission and r~eption 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, interconnection corporation, regional interconnection authority or City, county,
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FOR DISCUSSION PURPOSES ONLY
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.
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. Execution in Counterpart.
This Franchise Agreement may be executed in counterpart.
IN WITNESS OF THE FOREGOING, the parties 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
BY:
AS TO "CITY" ERIC M. SOROKA
CITY MANAGER
AS TO "CITY"
FOR DISCUSSION PURPOSES ONLY
ATTEST: ENDORSED AS TO FORM AND LEGALITY
FOR THE USE AND RELIANCE OF THE
CITY OF AVENTURA, FLORIDA ONLY
TERESA M. SMITH CITY ATTORNEY
CITY CLERK
AGREED TO AND ACCEPTED BY
FRANCHISEE:
WITNESSES:
BY:
AS TO "FRANCHISEE"
DATE:
AS TO "FRANCHISEE"
C:~225~Avent~ra\CableFranchiseXAgreements\05.07.98.wlxl