99-03 ORDINANCE NO. 99-03
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 TCl
TKR OF SOUTH FLORIDA. 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 TCI TKR of
South Florida, 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 wes offered by Commissioner Perlow, who moved its
adoption on first reading. This motion was seconded by Commissioner Rogers-Libert,
and upon being put to a vote, the vote wes as follows:
Commissioner Arthur Berger yes
Commissioner Jay R. Beskin absent
Commissioner Ken Cohen yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Harry Holzberg yes
Mayor Arthur I. Snyder yes
Ordinance No. 98-03
Page 2
The foregoing Ordinance was offered byCow.,,~ssio[~e]' Eol~ez's-Lil)ez-C ,
who moved its adoption on second reading. This motion was seconded by
vice ~'~ayor ]~oZzl, eq~ , and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger ,-es
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Harrry Holzberg
M/ayor Arthur I. Snyder yes
PASSED AND ADOPTED on first reading this 2nd day of February, 1999.
PASSED AND ADOPTED on second reading this 2nd day of March, 1999.
ATTEST: . ? ,.
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY'A'-I'TORN EY
CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN
THE CITY OF AVENTURA, FLORIDA AND TCI TKR OF
SOUTH FLORIDA, INC. (TCI-SF)
A FRANCHISE AGREEMENT ENTERED INTO BETWEEN THE
CITY OF AVENTURA, FLORIDA, AND TCI TKR OF SOUTH
FLORIDA, INC. (TCI-SF), PURSUANT TO THE CITY OF
AVENTURA, FLORIDA CABLE TELEVISION ORDINANCE NO.
97-20 AS AMENDED BY ORDINANCE NO. 98-11 AND
GRANTING A FRANCHISE TO OWN, OPERATE AND
MAINTAIN A CABLE TELEVISION SYSTEM 1N 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 February, 1999, is by and between the
CITY OF AVENTURA ("the City") and TCI TKR of South Florida, Inc., a Delaware Corporation
CTCI-SF').
WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§$21
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. 98-11, 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, TCI-SF 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
WHE _REAS, the.CoUncil _has ¢-¢alUated TCI-SF's application in light of the requirements of
Federal and Stat~ law and the Ordinance, and has conducted public hearings concerning TCI-SF's
request and application; and
WHEREAS, the Council has relied on TCI-SF's representations both oral and written and has
considered all information presented to it by TCI-SF, 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 TCI-SF 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 TCI-SF 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 TCI-SF entering into a franchise agreement; and
WHEREAS, the City and TCI-SF have reached agreement on the terms and conditions of
such a franchise agreement.
NOW, THEREFORE, in consideration of the City's grant of TCI-SF'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 TCI-SF's promise to provide cable
service to residents of the 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 here_by granted and
· ' : :' - . THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
Section 1. Definitions.
Except as otherwise provided herein, the definitions in Section 3 of Ordinance No.
97-20 as amended by Ordinance No. 98-11 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 as mended by Ordinance No. 98-11 of
the City of Aventura, Florida and as said Ordinance may hereinafter be mended.
B. Franchisee or TCI-SF shall mean TCI TKR of South Florida, Inc., a Delaware
corporation, and its lawful and permitted successors, assigns and transferees pursuant to Sections
29 and 30 of this Agreement and Ordinance No. 97-20 as mended by Ordinance No. 98-11 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 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 shail 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 mended by Ordinance No. 98-11.
Section 2. Grant of Franchise.
A. Subject to the terms of this Franchise Agreement and Ordinance No. 97-20 as
amended by Ordinance No. 98-11, the City hereby grants Franchisee a franchise for the right and
C:\225\1999\AYentura\Agreements\TCI Franchise.0128.wpd 3
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 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 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
SectionG6 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. 98-11 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-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 Act~ State Law and Ordinance.
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. 98-11 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 Subiect 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 toall 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 acquire, purchase, own and/or operate a cable system
to the extent permitted by local, state and federal law.
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Section 8. Insurance.
A. Franchisee sha_ll.0tstai-fi ari-d maihtain insurance of_the types and minimum amounts
required in Section 11 of Ordinance No. 97-20 as amended by Ordinance No. 98-11 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 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. 98-11,
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
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, comxnissioners, 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
9f programs, to. be d¢livere_d iby: 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. 98-11 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.
,Section 10. Construction Bond.
Pursuant to Section 13 of Ordinance No. 97-20 as amended by Ordinance No. 98-11, 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
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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. 98-11.
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 fbr 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. 98-11.
'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 conceming 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
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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 Street for the reasons set forth in Section 21(B) of Ordinance No. 97-
20 as amended by Ordinance No. 98-11.
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. 98-11. 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. 98-11.
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.
,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. 98-11,
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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 seVe_ntyzeighl .(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
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
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 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)
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
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
provided, upon request.
5. Within twelve months after Franchisee or any parent, affiliate or subsidiary
makes an on-line service providing Internet access for personal computers commercially available
on the system serving the City or the system serving the City of F'e-Eamter4ak, 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 Intemet 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 Interact. 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 hearing 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. In lieu of being responsible for wiring each and every floor and installing all facilities
necessary for live cablecasting from the new City complex, Franchisee agrees to provide the City
with a financial grant equivalent to the cost incurred by the franchisee responsible for the aforestated
wiring and installation, calculated on a pro-rata subscriber basis.
.,' .i ~ . H:.... UpOn the req. uest 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 in Dade or Broward Counties, 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 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 Franckisee 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 in
Dade or Broward Counties, no later than six (6) months after such product or service is offered to
subscribers in another community in Dade or Broward Counties.
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
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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 from ten (10) years to fifteen (15) years from the effective date hereof.
Section 14. Technical Standards.
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. 98-11. 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, mles,
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. 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 as amended by Ordinance No. 98-11 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. Access Channel Capacity. No later than twelve (12) months from the effective date
hereof, 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
C ~ \225\1999\Aventura\A~reement S\TCI Franchise. 0128 .~pd 16
by the City at cost.
2. No later than twelve (12) months from 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 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
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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 prograrraning 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.
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 Franchisee's 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
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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. 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 each such
Designated Municipal Event, and its place and time, no less than two (2) weeks before each such
event is heldl 'Frat?chisee strait also pyoyide the City w!th a videocassette copy of every Designated
Municipal Event arid 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. Franchisee hereby agrees to provide to the City a grant in the amount of Forty
Thousand Dollars ($40,000.00) dollars to be paid to the City no later than within 45 days ora council
approval of this franchise plus an additional payment of $4.15 per subscriber for each additional
subscriber over 2,712 subscribers added to the system, calculated as of December 31 of each year.
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. Franchisee's
incremental obligation for additional subscribers pursuant to this subsection 6 shall not exceed
$25,000
7. Franchisee hereby agree? that the facilities, equipment, services, and all other
support to k>e provide_d by Franehisee purst~ant to 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 fee within the meaning of
Communications Act, State law, Ordinance No. 97-20 as amended by Ordinance No. 98-11, 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 further agree that the pass through to subscribers of
any such costs shall be amortized evenly over the term of this agreement.
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.
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Section 20. Closed-circuit Captioning for the Hearing 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 hearing 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. 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. 98-11; or (2) ifa 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 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. 98-11.
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. 98-11 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. 98-11, 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 applicable statute of limitations, if any.
E. Following the expiration or the termination for any reason of its franchise, Franchisee
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shall pay the franchise fee owed as of the date that its operations ceased within ninety (90) calendar
days of ceasir~g such 0p_erations _Su~ ch phYment shall be ac_companied 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 ora 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 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 Records2
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. 98-11.
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. 98-11.
B. Pursuant to Ordinance No. 97-20 as amended by Ordinance No. 98-11, 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. 98-11 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.
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 taw.
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. 98-11, 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.
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. 98-11.
B. Pursuant to Section 18(E) of Ordinance No. 97-20 as amended by Ordinance No. 98-
11, Franchisee agrees to operate its local office, as defined in Section 18(B) of Ordinance No.97-20,
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.
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 as amended by Ordinance No. 98-11.
Section 28. Modification of Franchise.
Franchisee shall file an application with the City Manager for any modification of its
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franchise pursuant to Section 9 of Ordinance No. 97-20 as amended by Ordinance No. 98-11. The
application shall fully 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 as amended by Ordinance No. 98-11. 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 as amended by
Ordinance No. 98-11.
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. 98-11.
Section 30. Procedures for Requestin~ 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. 98-11, 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 inclu_dethe fo[lqwing:-' .. : .
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
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 be_en .in exi~s[ence f9r 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 summary of the amount of the proposed transferee's and its parent's or subsidiary's
resources committed to the completion thereof.
(f) 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.
(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. Renewal of Franchise.
The provisions of Ordinance No. 97-20 as amended by Ordinance No. 98-11 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 by
Ordinance No. 98-11 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. 98-11 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
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to subscribers and the City.
C. Pursuant to Section 20 of Ordinance No. 97-20 as amended by Ordinance No. 98-11,
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 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. 98-11 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
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 Commission
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. 98-11.
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. 98-11, the City may immediately
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withdraw that amount, with interest and any costs, from the secur_ity fun~d_or make such equivalent
claim against the guarantee. Upon such withdrawal or _claim thai ~ity Sh.all.no~:ify 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 by Ordinance No. 98-11, 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,
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. 98-11, 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
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corporate guarantee will be maintained by the Franchisee for one (!) year from the date of
termination and the remaining fund will be retumed to Franchisee,Ope (.1)year from th.e-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 as amended by
Ordinance No. 98-11, or authorized by other law, and no action, proceeding or exercise ora right
with respect to the security fund will affect any other right the City may have.
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 as amended by Ordinance No. 98-11, 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. 98-11 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.
3. For failure to comply with any other provision of Ordinance No. 97-20 as
amended by Ordinance No. 98-11, 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 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. Revocation or Termination of Franchise. Franchisee's franchise is subject to
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revocation pursuant to Section 24 of Ordinance No. 97-20 as amended by Ordinance No. 98-11 for
.-'-' .' . i' any o_f-th~ 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. 98-11
shall apply.
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 reception of government and education access 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 intemonnection would
be unreasonably high.
D. Franchisee shall make all reasonable efforts to cooperate with any designated access
organization, interconnection corporation, regional interconneqtion 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 intercounection of cable systems beyond the
boundaries of the franchise area.
Section 36. Written Notice of Acceptance.
Prior to 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
~T"~:'CFI'¢i7'''~ ~ EmC M. SOROKA
CITY MANAGER
ATTEST: ENDORSED AS TO FORM AND LEGALITY
FOR THE USE AND RELIANCE OF THE
CiTY OF AVENTURA, FLORIDA ONLY
TERESA M. SMITH CITY ~q'TORNEY
CITY CLERK
AGREED TO AND ACCEPTED BY
FRANCHISEE:
WITNESSES: ..~~~//~
AS TO "FRANCHISEE" ~' : fB/
AS'TO "FRANCHISEE
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