2004-25448 Reso
RESOLUTION NO. 2004-25448
A RESOLUTION OF THE MA YORAND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING
THE TRANSFER OF THE INTERLINK COMMUNICATIONS
PARTNERS, LLC. D/B/A CHARTER COMMUNICATIONS
("CHARTER") CABLE FRANCHISE TO ATLANTIC
BROADBAND (MIAMI) LLC ("ATLANTIC BROADBAND")
WHEREAS, on September 22,2003, the City of Miami Beach, Florida, received an FCC
394 requesting the City to consent to the proposed transfer of the Charter cable television Franchise
to Atlantic Broadband (Miami) LLC ("Transferee"); and
WHEREAS, pursuant to cable Ordinance No. 2001-3289 of the City of Miami Beach and
the Charter Franchise granted thereunder, no such transfer may occur without prior approval of the
City Commission; and
WHEREAS, the City has required that the Applicant fulfill the obligations of Ordinance No.
2001-3289 and the Franchise and provide information on the proposed transaction including details
regarding the legal, financial, and technical qualifications of the Transferee and such other
information as may be in the public interest; and
WHEREAS, the City has relied on information provided by both the proposed Transferor
and the Transferee; and
WHEREAS, the City has required a written acceptance from Atlantic Broadband of the
terms and conditions ofthis Resolution by Affidavit as a condition precedent to the adoption ofthis
Resolution (Agreement and Acceptance attached hereto as Exhibit A);
NOW, THEREFORE, BE IT RESOL YED BY THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, THAT:
Section 1. To the extent required, the City of Miami Beach hereby consents to the
transfer ofthe Charter cable television Franchise from Charter to Transferee.
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 Charter under cable Ordinance No.
2001-3289 and the cable television Franchise granted pursuant to Ordinance No. 2001-3289, except
to the extent that such obligations become the obligations of Transferee as a result ofthe transfer.
Section 3. That the consent granted herein does not constitute and should not be
construed to constitute a waiver or release of any obligations of Transferee under Cable Ordinance
No. 2001-3289 and the cable Franchise granted pursuant Ordinance No. 2001-3289, except to the
extent such obligations are assumed by Charter as a result of the transfer.
Section 4. That the consent granted herein does not and should not be construed to
constitute a waiver of any right of the City under applicable law including, but not limited to
Ordinance No. 2001-3289 and the cable television Franchise; and further, this consent shall not
prejudice the City's rights with respect to the enforcement, renewal or subsequent transfer of the
cable television Franchise and any amendments thereto or agreements in connection therewith.
Section 5. That the consent granted herein is conditioned upon (a) execution of the
Acceptance and Agreement attached hereto and incorporated herein as Exhibit A; and (b) submission
to the City of cost recovery of all costs incurred by the City related to this transfer proceeding,
including but not limited to consulting and legal fees in the amount of Eleven Thousand Dollars
_($ 11.000.00). The City acknowledges that it has received the sum of Seven Thousand and Five
Hundred Dollars ($7.500) from the applicant and that sum shall be credited against the expenses as
set forth above.
Section 6. That the City hereby reserves all of its rights pursuant to federal, state and
local law including, but not limited to the rights in (a) the Franchise renewal process (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 Ordinance No. 200]-3289 and the current cable television Franchise.
Section 7.
That the consent granted herein is an express non-waiver and express
reservation of the City's rights and authority with respect to enforcement of the Franchisee's
compliance with applicable law including, but not limited to Ordinance No. 200]-3289 and the
current cable television Franchise. Transferee shall be liable for any and all violations or breaches of
said Ordinance( s) or Franchise regardless of whether such violations arose prior to or after the close
ofthe transaction between Interlink Communications Partners, LLC. d/b/a Charter Communications
and Atlantic Broadband (Miami) LLC. The City's approval of the transaction shall in no way be
deemed a representation by the City that Charter is in compliance with its obligation under
Ordinance No. 2001-3289 or the Franchise Agreement.
Section 8. That the consent granted herein is subject to Transferee's compliance with all
other applicable legal requirements and the City does not waive and expressly reserves the right to
enforce any non-compliance with the applicable Ordinance(s) and Franchise requirements.
Section 9.
In the event the proposed transaction between Interlink Communications
Partners, LLC. d/b/a Charter Communications and Atlantic Broadband (Miami) LLC is not
consummated within] 80 days ofthe effective date herein, or in the event such closure is reached on
terms substantially or materially different to the terms described in the application and exhibits
thereto, submitted to the City on or about September 22,2003, or in the event Miami-Dade County
fails to approve any application to transfer the Charter Franchise to Atlantic Broadband or does not
reach final closure for any reason within 180 days of the effective date herein, this Resolution,
together with the Acceptance and Agreement submitted by Atlantic Broadband shall be null and
void.
Section 10. That this Resolution shall become effective upon the date of its adoption
herein.
PASSED AND ADOPTED this
,2004.
ATTEST:
J~yr~
CITY CLERK
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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Date
CITY OF MIAMI BEACH
COMMISSION ITEM SUMMARY
m
Condensed Title:
Resolution approving the transfer of Cable Franchise Agreement between the City and The Interlink
Communications Partners, LLC, d/b/a Charter Communications, Inc. to Atlantic Broadband (Miami), LLC,
Issue:
Shall the City Commission approve the transfer of the Cable Franchise Agreement between the City and The
Interlink Communications Partners, LLC, d/b/a Charter Communications, Inc. to Atlantic Broadband (Miami),
LLC.?
Item Summary/Recommendation:
On January 1 0, 2001, the City renewed its non-exclusive cable television franchise agreement ("franchise
agreement") with Interlink Communications Partners, LLC d/b/a Charter Communications, Inc. ("Charter") for a
term of ten (10) years, On September 22,2003, the City received a Federal Communications Commission
(FCC) Form 394 requesting that the City consent to the proposed transfer of the franchise agreement from
Charter to Atlantic Broadband (Miami), LLC ("Atlantic"),
Section 22-23(d) of the City's Cable Television Ordinance (Chapter 22 of the City Code)states that only the
following items are to be considered when making a determination on whether to grant an application for
transfer are:
"the legal, financial, and technical and other qualifications of the transferee to operate the system;
whether the incumbent cable operator is in substantial compliance with the material terms of its
franchise agreement, and this chapter and, if not, the proposed transferee's commitment to cure such
noncompliance; and whether operation by the transferee would adversely affect cable service to
subscribers, or otherwise be contrary to the public interest."
The City has found the application for transfer compliant with the applicable provisions of Chapter 22 of the City
Code. Federal law requires local franchising authorities (the City) to approve or deny a franchise transfer
request within one hundred and twenty (120) days of receipt by the franchising authority of a completed
application, or the request will be considered granted, The 120 days in this transfer request expires on or about
January 20, 2004.
Given that Atlantic has provided appropriate information regarding their qualifications, and that Charter, the
current cable operator, is in substantial compliance with the existing franchise agreement, and that the transfer
would not seem to be contrary to the public interest, the Administration recommends that the City Commission
approve the proposed transfer of the franchise agreement from Charter Communications, Inc, to Atlantic
Broadband (Miami), LLC.
Advisory Board Recommendation:
IN/A
Financial Information'
Source of Amount Account Approved
Funds: 1
I I 2
Finance Depl. Total
Ci Clerk's Office Le islative Trackin
Robert Parcher, City Clerk
Si n-Offs:
Department Director
Assistant City Manager
City Manager
~~ Rtt.~~
T:\AGENDA\2004\Jan1404\Regular\Cable Television Franchis Agreement Transfer cover.doc
AGENDA ITEM
DATE
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CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
www,miamibeachfl,gov
COMMISSION MEMORANDUM
To:
From:
Mayor David Dermer and Date: January 14, 2004
Members of the City Commission
Jorge M. Gonzalez '{] ~ ~
City Manager \'-" '" .
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA APPROVING THE TRANSFER OF
CABLE FRANCHISE AGREEMENT BETWEEN THE CITY AND THE
INTERLINK COMMUNICATIONS PARTNERS, LLC. D/B/A CHARTER
COMMUNICATIONS, INC. ("CHARTER") TO ATLANTIC BROADBAND
(MIAMI), LLC ("ATLANTIC BROADBAND"~
Subject:
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
ANALYSIS
On January 10, 2001, the City renewed its non-exclusive cable television franchise
agreement ("franchise agreement") with Interlink Communications Partners, LLC d/b/a
Charter Communications, Inc. ("Charter") for a term of ten (10) years. On September 22,
2003, the City received a Federal Communications Commission (FCC) Form 394
requesting that the City consent to the proposed transfer of the franchise agreement from
Charter to Atlantic Broadband (Miami), LLC ("Atlantic").
Section 22-9 "Applications for grant, renewal, modification or transfer of franchise" of the
City's Cable Television Ordinance (Chapter 22 of the City Code) outlines the process for
applying for a transfer of a franchise agreement. Pursuant to Section 22-9, applications for
transfer must include certain information regarding the proposed provider, a demonstration
of the technical, legal and financial ability and other qualifications to operate the cable
system, and a filing fee to defray a portion of the City's costs in processing the application.
Section 22-23 "Transfer/sale/assignment" of Chapter 22 of the City Code further defines
the process for a transfer of the franchise agreement. The proposed provider must also
agree to accept the terms of the City's Cable Television Ordinance and the existing
franchise agreement, and that they will assume the obligations and liabilities of the
previous franchisee under the Ordinance and franchise agreement. Section 22-23(d)
states that only the following items are to be considered when making a determination on
whether to grant an application for transfer:
City Commission Memorandum
Cable Television Franchise Agreement Transfer
January 14, 2004
Page 2 of 2
... the City Commission shall consider the legal, financial, and
technical and other qualifications of the transferee to operate the
system; whether the incumbent cable operator is in substantial
compliance with the material terms of its franchise agreement, and
this chapter and, if not, the proposed transferee's commitment to cure
such noncompliance; and whether operation by the transferee would
adversely affect cable service to subscribers, or otherwise be contrary
to the public interest.
Upon receipt of the application for transfer, and the appropriate filing fee, the City
Attorney's Office consulted with the City's outside legal firm for cable television and
telecommunications issues, Leibowitz & Associates, PA ("Leibowitz"). After further review
with Leibowitz, and discussions between Atlantic and Leibowitz, the City has found the
application for transfer compliant with the provisions of Section 22-9 of the City Code.
Further, Atlantic has provided the City with their qualifications as stated in Sections 22-9
and Sections 22-23. Atlantic has provided adequate documentation to substantiate its
legal, financial and technical qualifications. Similarly, the City has found that the incumbent
cable operator is in substantial compliance with the existing franchise agreement. Lastly,
the City has not found reason why the operation of the cable system by Atlantic would
adversely affect cable service to subscribers, or otherwise be contrary to the public interest.
Federal law requires local franchising authorities (the City) to approve or deny a franchise
transfer request within one hundred and twenty (120) days of receipt by the franchising
authority of a completed application, or the request will be considered granted. The 120
days in this transfer request expires on or about January 20, 2004.
CONCLUSION
Given that Atlantic has provided appropriate information regarding their qualifications, and
that Charter, the current cable operator, is in substantial compliance with the existing
franchise agreement, and that the transfer would not seem to be contrary to the public
interest, the Administration recommends that the City Commission approve the proposed
transfer of the franchise agreement from Charter Communications, Inc. to Atlantic
Broadband (Miami), LLC.
T:\AGENDA\2004\Jan1404IRegularICable Television Franchis Agreement Transfer memo,doc
:JCd/ - 2 r f/ VJ'
AFFIDAVIT OF COMPLIANCE
FOR THE CITY OF MIAMI BEACH
Atlantic Broadband LLC, as Transferee of the Charter cable television Franchise, hereby
certifies that it had conducted reasonable due diligence and determined that the Franchise is in
compliance with all of the terms and conditions of its Franchise with the City of Miami Beach,
including but not limited to all customer service obligations set forth therein or such other FCC
standards as may be applicable. In the event that at any time it is determined that the Franchisee was
not in compliance with any obligations prior to the closing date of the transfer transaction between
Interlink Communications d/b/a Charter and Atlantic Broadband LLC, Transferee accepts all
obligations and liabilities.
Atlantic Broadband (Miami) LLC,
'D;;M~ony
BY:~ '
ITS. 2.6~) DCrv'}
COUNTY OF
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SS.
STATE OF
BEFORE ME, the undersigned authority, personally appeared who is known to me personally
(or provided proof of identification) and upon being first duly sworn acknowledged that he/she
executed the foregoing document freely and voluntarily and for the purpose therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this 4 '*'
day of may, 2004.
~O./YJ~
ot Public, State of mO<:,<;.arn II'.S~
My Commission Expires:
rJ/)9)~?
LAURIE A. MANCOUR
Notary Public
My Commission Expires
July 19, 2007
EXHIBIT A
AGREEMENT AND ACCEPTANCE OF TERMS
OF RESOLUTION NO. 2004-25448
BEFORE ME, appeared the undersigned authority who having been duly sworn upon his oath deposes
and states that:
1. The Affiant is the President and Chief Operating Officer of Atlantic Broadband (Miami) LLC, a
Limited Liability Company organized under the laws of Delaware, and is the person authorized to execute this
document on behalf of Atlantic Broadband (Miami) LLC.
2. The Affiant is submitting this Affidavit as a condition precedent to the transfer of the Interlink
Communications Partners, LLC. d/b/a Charter Communications ("Charter") cable television Franchise from
Charter to Atlantic Broadband (Miami) LLC ("Transferee").
3. Affiant hereby attests that Charter is a current Franchisee in the City of Miami Beach, Florida
(the "City") and that Atlantic Broadband (Miami) LLC will be the successor to Franchisee upon the closing of
the transaction between Charter and Atlantic Broadband (Miami) LLC.
4. Transferee hereby accepts and agrees to all of the terms and conditions or provisions of this
Agreement & Acceptance, Ordinance No. 2001-3289, the Franchise Agreement, and by all amendments thereto
or transfers thereof
5. Transferee shall cooperate in any compliance inquiry in connection with any possible Franchise
violations that may have arisen before the effective date herein or that may arise after said date.
6, Effective on the date of the closure ofthe transaction between Charter and Atlantic Broadband
(Miami) LLC in the event it is determined that Franchisee is not in compliance with the Ordinance(s) or
Franchise, Transferee shall be subject to liquidated damages and such other remedies as may be imposed by the
City pursuant to the Ordinance(s) and the Franchise.
7. Franchisee hereby agrees to pay to the City the amount of Seventy Thousand Six Hundred
Seventy Five Dollars ($70,675.00) within 30 days of the effective date hereof in satisfaction ofits obligations
pursuant to Section 16. B.5 of the franchise agreement.
2004-25448
8. Franchisee unconditionally accepts all tenns and conditions of Resolution No. _ and this
Agreement and Acceptance as incorporated therein.
FURTHER AFFIANT SAYETH NAUGHT.
Atlantic Broadband (Miami) LLC,
a Delaware Limited Liability Company
BJ7J#p.OL
BY: ~ ' -
ITS: (?..u D E tV I
,
COUNTY OF
)
)
)
SS.
STATE OF
BEFORE ME, the undersigned authority, personally appeared who is known to me personally (or
provided proof of identification) and upon being first duly sworn acknowledged that he/she executed the
foregoing document freely and voluntarily and for the purpose therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this t.jtJv day of
rn~ ' 2004.
My Commission Expires: --.)Q~ 0, m~
'7/ Iq /O? ~~Public, State of mf"'1~~a chllStd+s
LAURIE A. MANCOUR
Notary Public
My Commission Expires
July 19, 2007