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99-008 RESOLUTION NO. 99-08 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, APPROVING THE TRANSFER OF CONTROL OF THE CABLE TELEVISION FRANCHISE FROM RIFKIN/NARRAGANSETT SOUTH FLORIDA CATV LIMITED PARTNERSHIP ("RNSF") TO INTERLINK COMMUNICATIONS PARTNERS, LLLP ("ICP") AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on December 14, 1998, the City of Aventura received notification of the proposed transfer of control of the RNSF cable television franchise to ICP; and WHEREAS, pursuant to Ordinance Nos. 97-20 and 98-11 of the City of Aventura and the Franchise Agreement, no such change of control may occur without prior approval of the City Commission; and WHEREAS, the City has required that the applicant fulfill the obligations of Section 9 of the Cable Television Ordinance and Section 30 of the Cable Television Franchise and provide information on the proposed transaction including details on the legal, financial, technical and other qualifications of the transferee and on the potential impact of the transfer on subscriber rates and service; and WHEREAS, under FCC Rules, 47 CFR Section 76.502, the City of Aventura has 120 days from the date of submission of a completed FCC Form 394, together with all Exhibits and any additional information required by the franchise agreement or applicable state or local law, to act upon an application to sell, assign or otherwise transfer controlling ownership of a cable system; and Resolution No 99-08 Page 2 WHEREAS, the City has required written acceptance from ICP of the terms and conditions of this Resolution by affidavit as a condition precedent to the Adoption of this Resolution (affidavit attached hereto as Exhibit A); and WHEREAS, in the event the proposed transaction between RNSF and ICP is not consummated within one hundred eight (180) days of the date hereof or does not reach final closure for any mason, or in the event such closure is reached on terms substantially or materially different to the terms described in the FCC Form 394 and exhibits thereto, this Resolution, together with the affidavit of acceptance submitted by the proposed transferee, shall be null and void. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, AS FOLLOWS: Section 1. To the extent required, the City of Aventura hereby consents to the assignment and transfer of the City of Aventura Cable Television Franchise from RNSF to ICP. Section 2. That the consent granted herein does not constitute and should not be construed to constitute a waiver or release of any obligations of the Franchisee under the Cable Television Ordinance and the Cable Television Franchise Agreement. Section 3. That the consent granted herein does not and should not be construed to constitute a waiver of any right of the City under the Ordinance or the Cable Television Franchise; and further, this consent shall not prejudice the City's rights with respect to the enforcement, renewal or transfer of the current cable television franchise and any amendments thereto. Resolution No 99-08 Page 3 Section 4. That the consent herein granted is conditioned upon (a) ICP's assurances set forth in its affidavit submitted to the City on January 25, 1999 and attached hereto as Exhibit A; and (b) ICP's submission to the City of cost recovery for all costs incurred by the City directly or indirectly related to the transfer process including, but not limited to, consulting fees and legal fees pursuant to Section 1 0(F) of Ordinance No. 97-20 no later than sixty (60) days after the effective date of this Resolution. Section 5. That the consent herein granted is for the limited right to provide cable television service, and to the extent not otherwise prohibited by applicable law, the franchisee shall be required to obtain permission from the City in the form of a grant, franchise, permit, license, or other authorization so designated by the City, prior to its providing any other services within the City, including but not limited to, telecommunications to the extent not explicitly prohibited by applicable law. Section 6.. That this Resolution shall have the force and effect of continuing the agreement between the Franchisee and the City of Aventura, the Franchise Authority. Section 7. That the City hereby reserves all of its rights pursuant to Federal and local law including, but not limited to, the rights in (a) the franchise renewal process including, but not limited to, the right to consider violations of the franchise by the current franchisee; (b) the franchise transfer process including, but not limited to, the right to act upon any application to sell, assign or otherwise transfer controlling ownership of the cable system; and (c) the enforcement of the current Cable Television Ordinance Nos. 97-20 and 98-11 and amendments thereto of the City as amended and the current cable television franchise as amended. Resolution No 99-08 Page 4 Section 8. That the consent herein granted expressly does not waive and expressly reserves to the City of Aventura its rights to fully exercise all applicable legal rights and authority against RNSF and ICP and its affiliates in connection with any use of the City of Aventura's rights of way not authorized by the City including, but not limited to, levying fines or instituting litigation for trespass and ejectment. Section 9. That the consent herein granted is an express non-waiver and reservation of the City's rights and authority against ICP for any material franchise violations that may exist, including but not limited to, those in connection with any unauthorized use of ICP's facilities or facilities by any entity in any way affiliated with a company in which a member of the Rifkin family or ICP has an interest. Section 10, That the consent granted herein is subject to the transferor's and transferee's compliance with all other applicable legal requirements and the City does not waive and expressly reserves the right to enforce full compliance with applicable ordinance and franchise requirements, whether or not any non-compliance that may be determined arose before or after the transfer of control from RNSF to ICP. Section 11. That this Resolution shall become effective upon the date of its adoption herein. The foregoing Resolution was offered by Commissioner Perlow, who moved its adoption. The 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 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 Resolution No 99-0_~8 Page 5 PASSED AND ADOPTED this 2"a day of February, 1999. ATTEST: Teresa M. Smith, CMC, City Clerk APPROVED AS TO LEGAL SUFFICIENCY: EXHIBIT A UNCONDITIONAL ACCEPTANCE OF FRANCHISE BY TRANSFEREE BEFORE ME personally appeared the undersigned authority who being duly sworn upon his oath deposes and states that: 1. The Affiant is the Vice President of the General Partner of InterLink Communications Partners, LLLP, and is the person authorized to execute this document on behalf of the Affiant. 2. The Affiant is submitting this affidavit as a condition precedent to the transfer of the City of Aventura, Florida cable television franchise from Riikin/Narragansett South Florida CATV Limited Partnership to InterLink Communications Partners, LLLP. 3. The Affiant is submitting this Affidavit as an unconditional acceptance by Affiant of the City of Avenmra's Cable Television Ordinance Nos. 97-20 and 98-11, and the amendments thereto and the current cable television franchise and amendments thereto. 4. Affiant shall comply with and abide by all terms, provisions and conditions of the Cable Television Ordinance of the City and amendments thereto and the current cable television franchise and amendments thereto. 5. Affiant shall assume performance of all of the current franchisee's obligations and liabilities under the Ordinance, known and unknown, and under the current cable television franchise and amendments thereto, known and unknown. 6. Affiant hereby expressly agrees to make readily available to the City all books and records necessary to perform a financial audit to auditors in Dade County, Florida. 7. Affiant unconditionally accepts that the Cable Television Ordinance Nos. 97-11 and 98-20 of the City and amendments thereto and the franchise agreement and amendments thereto grant only the limited right to provide cable television service, and Affiant will obtain applicable authorizations from the City as required by the City prior to providing non-cable services. 8. Affiant shall cooperate in any franchise fee compliance inquiry in connection with any possible franchise fee arrearages that may have arisen or that may arise through the exclusion of certain revenue streams. Further, so long as cable modem services, including but not limited to, Internet access and services, are not deemed by applicable law to be non-cable services, the Affiant shall comply with all lawful requirements regarding such services including, but not limited to, the inclusion of revenues of modems, Internet access and services payments and advertising and shopping revenues generated in connection therewith within the gross revenues of the cable system and commercial leased access requirements. 9. Affiant shall comply with all other applicable legal requirements, including carriage of broadcast digital and high definition television signals, and interconnection of the cable system with potential competitors for purposes, among other things, of sharing cable PEG channels. 10. The Affiant acknowledges that the Legislative History of the 1992 Cable Act contemplates that the City should address any deficiencies in service, including non-compliance, at the time of the transfer. The Affiant agrees to ensure that it assumes responsibility for any and all non-compliance under the current franchise that may now exist or may later be discovered to have existed during the term of the franchise even if prior to the closing of the transfer of control. 11. Affiant unconditionally accepts all terms and conditions of Resolution No. 99- 08. FURTHER, AFFIANT SAYETH NAUGHT. INTERLINK COMMUNICATIONS PARTNERS, LLLP By: Rifkin Co., its General Partner By:Q. STATE OF COLORADO ) CITY AND COUNTY OF DENVER ) I hereby certify, that on this~.~_day of January, 1999, before me, the subscriber, a Notary Public of the State of Colorado, in and for the City and County of Denver, Colorado, aforesaid, personally appeared Dale D. Wagner, as Vice President of the General Partner of InterLink Communications Partners, LLLP and acknowledged the foregoing Acceptance of Cable Television System Franchise in the City of Aventura, Florida, to be the act and deed of said company. WITNESS my hand and official seal. My connniss~on expires: