2001-24233 RESORESOLUTION NO. 2001-24233
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA APPROVING
A CABLE TELEVISION FRANCHISE AGREEMENT WITH
INTERLINK COMMUNICATIONS PARTNERS, LLC D/B/A
CHARTER COMMUNICATIONS, INC; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the non-exclusive cable television franchise with Interlink Communications
Partners, LLC d/b/a Charter Communications, Inc. (forme~y known as Rifkin Narragansett South
Florida CATV Limited Partnership, d/b/a CableVision Communications, and hereinafier referred
to as "Charter") expires in February 2001; and
WHEREAS, in order to properly address the franchise renewal process, the Mayor and City
Commission adopted Resolution No. 98-22957 on November 4, 1998, and created the Miami Beach
Cable Advisory Board (the "Cable Advisory Board"); and
WHEREAS, Charter has made a proposal to the City to renew its non-exclusive cable
television franchise; and
WHEREAS, the Cable Advisory Board was charged with the duty of analyzing (1) whether
Charter has substantially complied with the material terms of its existing franchise agreement and
applicable law, (2) whether the quality of Charter's service has been reasonable in light of
community needs, (3) whether Charter has the financial, legal, and technical ability to provide the
services, facilities, and equipment as set forth in its proposal, and (4) whether Charter' s proposal is
reasonable to meet the future cable-related community needs and interests, taking into account the
costs thereof; and
WHEREAS, the Cable Advisory Board has held fifteen meefmgs and three public hearings
over the past two years, and all of such meetings and public hearings were publicly noticed and
interested members of the public were encouraged to participate; and
WHEREAS, in addition, the Cable Advisory Board ordered a fmancial audit and a technical
audit of Charter in addition to personally touring Charter's facilities; and
VVltEREAS, as a result of the foregoing, the Cable Advisory Board has answered all four
of the above questions in the affirmative and has made a positive recommendation for the renewal
of the franchise with Charter.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA as follows:
SECTION 1. The Franchise Agreement attached hereto is hereby approved and the Mayor and City
Clerk are hereby authorized to execute said Franchise Agreemere.
SECTION 2. This Resolution shall take effect on the effective date of the City of Miami Beach
Cable Television Ordinance adopted by the Mayor and City Commission on the date
hereof.
PASSED AND ADOPTED this 10tMay of January
ATTEST:
CITY CLERK
MAYOR
,2001.
· APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:~ci.miami~beach.fLus
TO:
FROM:
SUBJECT:
COMMISSION mMORA VM NO. 7-- ' 5 t
Mayor Neisen Kasdin and
Members of the City Commission
DATE: January 10, 2001
Jorge M. Gonzalez ~ F~
City Manager
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA APPROVING A CABLE TELEVISION
FRANCHISE AGREEMENT WITH INTERLINK COMMUNICATIONS
PARTNERS, LLC D/B/A CHARTER COMMUNICATIONS, INC; AND
PROVIDING AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION
The Administration recommends that the City Commission approve the proposed Resolution.
ANAl ,YSIS
The non-exclusive cable television franchise with Interlink Communications Parmers, LLC d/b/a
Charter Communications, Inc. (formerly known as RifkinNarragansett South Florida CATV Limited
Partnership, d/b/a CableVision Communications, and hereinafter referred to as "Charter") expires
in February 2001. In order to properly address the franchise renewal process, the Mayor and City
Commission adopted Resolution No. 98-22957 on November 4, 1998, and created the Miami Beach
Cable Advisory Board (the "Cable Advisory Board").
The Cable Communications and Policy Act of 1984, 47 U.S.C.A. §521 et. seq. (the "Cable Act")
provides that during the 6-month period which begins with the 361h month before the franchise
expiration, the franchising authority may on its own initiative, and shall at the request of a cable
operator, commence proceedings which afford the public in the franchise area appropriate notice and
participation for the purpose of (1) identifying the future cable-related community needs and
interests, and (2) reviewing the performance of the cable operator under the franchise during the then
current franchise term (47 U.S.C.A. §546).
In order to commence above-described process, the Cable Advisory Board was charged with the duty
of analyzing the following four factors that may be considered by the City with regard to the renewal
of a cable franchise:
(1) Whether the cable operator has substantially complied with the
material terms of its existing franchise agreement and applicable law;
(2)
Whether the quality of the operator's service has been reasonable in
light of community needs;
(3)
Whether the operator has the financial, legal and technical ability to
provide the services, facilities, and equipment as set forth in its
proposal; and
(4)
Whether the operator's proposal is reasonable to meet the future
cable-related community needs and interests, taking into account the
cost thereof.
The Cable Advisory Board, which is presently composed of Jo Asmundsson, Jeff Bechdel, Hertry
Kay, Pat Morris and Nicholas Spill, held fifteen (15) meetings and three (3) public hearings over
the past two (2) years. All of the meetings and public hearings were publicly noticed and interested
members of the public were encouraged to participate. In addition, the Cable Advisory Board
ordered a financial audit and a technical audit of Charter, in addition to touring Charter's facilities
itself. As a restfit, the Cable Advisory Committee has answered all four of the above questions in
the affirmative, and makes a positive recommendation for the renewal of the franchise with Charter.
As a prerequisite to implementing the franchise renewal, the Cable Advisory Board has worked with
the Administration, the Office of the City Attorney and the City' s outside counsel for cable television
and telecommunications matters, Leibowitz & Associates, to prepare a new Cable Television
Ordinance in order to establish a general framework for the application process for new franchises
and renewals. The Ordinance, which is on today's City Commission Agenda, and which must be
approved prior to the adoption of the attached Resolution, requires every cable television operator
to have a franchise from the City; sets forth the characteristics of a franchise; regulates the
application and renewal process, as well as the process for modifications and transfers of franchises;
sets forth fees in connection with the granting and transfer of franchises; sets forth standards for
granting franchises; requires insurance and indemnification from franchisees; requires construction
bonds when facilities are being constructed; requires certain minimum facilities, technical and
service standards, as well as customer service requirements; and requires support for public,
education and government channels, such as Channel 20, which broadcasts all City Commission
meetings, and certain committee and board meetings and public service announcements. The
proposed Ordinance also sets the franchise fee to be paid to the City by cable operators and a
schedule of fines for violation of the Ordinance. Any other cable system operators that apply for
franchises will be subject to the proposed Ordinance.
The proposed Franchise Agreement, among other things, provides for the grant of a non-exclusive
cable television franchise to Charter; provides that such franchise shall be for a term of ten (10)
years; provides that such franchise is subject to all federal and state laws and regulations, as well as
2
the cable television ordinance that the City Commission is being asked to adopt today; provides for
insurance, indemnification of the City and for construction bonds to be obtained in certain instances;
provides for use of the City' s streets by Charter; sets standards for minimum system facilities and
services and for technological improvements to Charter's cable system; provides technical
requirements and proof of performance tests; provides for govemment and educational access
channels; provides for certain reports and records to be kept and for the right of the City to inspect
financial records and Charter' s facilities; provides for modification, transfer and renewal of the
franchise; and provides for remedies in the event of non-compliance with the Franchise Agreement.
It should be noted that approval of the Franchise Agreement with Charter does not preclude the City
from entering into other franchise agreements with other cable television operators: The franchise
is non-exclusive.
The renewal of Charter' s non-exclusive cable television franchise will provide substantial benefit
to the City and its citizens. Charter has already rebuilt its cable system to a state-of-the-art 750
megahertz system in anticipation of the renewal of its franchise. In addition, upon renewal of the
franchise, Charter will pay to the City a grant of $125,000, with another $75,000 to be paid on the
fifth anniversary of the franchise (§16.B.5 of the Franchise Agreement). These funds may be used
to pay for equipment to improve the City's broadcast facilities and/or to offset the City's legal
expense for the franchise renewal. Charter has also agreed to provide at least one (1) and a
maximum of two (2) access channels to the City. Channel 20 is the first channel. Such channels
may be used for governmental and educational prograrnrning. Once the initial channel is
programmed at least six (6) hours per day, Monday through Friday, with locally produced
programming, for four (4) consecutive weeks, Charter will provide the second access channel at the
City's request (§16.A. 1 of the Franchise Agreement). The Franchise Agreement also requires
Charter to provide (a) 300 thirty (30) seconds spots each year to advertise City-sponsored events,
(b) studio facilities for certain purposes, and (c) cable service to City-owned buildings and public
schools (see §16 of the Franchise Agreement). All of the foregoing are to be provided at no cost to
the City. These cash and in-kind benefits are in addition to the 5% franchise fee that Charter pays
(of which 4% comes to the City and 1% goes to Miami-Dade County). The City received $541,095
in franchise fee revenues in Fiscal Year 2000, and has budgeted $545,000 in such revenues in Fiscal
Year 2001 (however, the City should exceed the budgeted amount as a result of the legal action
described below, which had the effect of changing the City' s share of the franchise fee from 3% to
4%). Additionally, Charter is required to make available equipment for decoding of closed-circuit
captioning for hear-impaired subscribers at a reasonable charge (§20 of the Franchise Agreement),
and to make available, at a reasonable cost, "parental guidance" or "lock-out" devices to permit
subscribers to eliminate audio and visual transmissions from any channel to the extent technically
feasible (§19 of the Franchise Agreement). These provisions, and others contained in the Franchise
Agreement, will assure the City and its citizens of a state-of-the-art cable system and improved
service to subscribers.
As a result of the decision of the Third District Court of Appeal in the case styled City of Miami
Beach v. RificirdNarragansett South Florida CATV Limited Partnership v. Metropolitan Dade
County, and the Court's denial of Miami-Dade County's motion for a rehearing en bane, certain
funds which are presently held in escrow, and certain mounts payable by Charter, are due to the
City. These mounts, which total approximately $668,895, plus costs, interest and certain other
amounts, have not yet been collected because the parties are awaiting receipt of a final order from
the Eleventh District Circuit Court. Please be advised that, although the Administration recommends
approving the attached Resolution and Franchise Agreement today, the proposed Franchise
Agreement will not be executed by the City until such funds have been collected and the proposed
Cable Television Ordinance on today' s City Commission Agenda has become effective.
Based upon the foregoing, and the positive recommendation of the Cable Advisory Board, the
Administration hereby recommends adoption of the proposed Resolution approving the renewal of
Charter's non-exclusive cable television Franchise Agreement.
JMG/LAL/bfg ~
CITY OF MIAMI BEACH, FLORIDA
INTERLINK COMMUNICATIONS PARTNERS, LLC D/B/A
CHARTER COMMUNICATIONS, INC.
CABLE TELEVISION FRANCHISE AGREEMENT
TABLE OF CONTENTS
Section
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 1 I.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Page
Definitions ............................................................ 3
Grant of Franchise ...................................................... 4
Term of Franchise ....................................................... 5
Non-Exclusive Franchise ................................................. 5
Franchise Subject to Communications Act, State Law and Ordinance .............. 6
Franchisee Subiect To Other Laws, Police Power .............................. 6
Reservation of Rights .................................................... 6
Insurance ............................................................. 6
Indemnification of the City ............................................... 7
Construction Bond ...................................................... 8
Use of Streets .......................................................... 9
Minimum System Facilities and Services ................................... 11
Technolo,,ical Improvements to System .................................... 15
Technical Standards .................................................... 17
ProofofPerformanceTests .............................................. 17
Access Channels and Facilities ........................................... 18
Commercial Leased Access .............................................. 22
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Section 26.
Section 27.
Section 28.
Section 29.
Section 30.
Section 31,
Section 32,
Section 33.
Section 34.
Section 35.
Section 36.
Section 37.
Emergency Use ofFacilities ............................................. 22
Lock-out Devices ...................................................... 23
Closed-Circuit Captionin~ for the Hearimz lmtyaired .......................... 2S
Line Extension Policy .................................................. 23
Cable Home Wirin~ Commitments ........................................ 23
Franchise Fee ......................................................... 24
Reports and Records ................................................... 26
Right to Inspect Financial Records and Facilities ............................ 26
Customer Service Recluirements .......................................... 27
City Purchase of Cable System ........................................... 27
Modi~cationofFranchise ............................................... 27
TransferofFranchise ................................................... 27
Procedures for Requestinc, Approval of Transfer .............................. 28
Renewal of Franchise .................................................. 31
Rates ............................................................ 31
Security Fund ......................................................... 32
Enforcement Remedies ................................................. 34
Area Wide-lnterconnection .............................................. 36
WrittenNoticeofAcceptance ............................................ 37
Execution in Countemarts .............................................. 38
CABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND
INTERLINK COMMUNICATIONS PARTNERS, LLC
D/B/A CHARTER COMMUNICATIONS, INC.
A FRANCHISE AGREEMENT ENTERED INTO BETWEEN THE
CITY OF MIAMI BEACH, FLORIDA, AND INTERLINK
COMMUNICATIONS PARTNERS, LLC dPo/a CHARTER
COMMUNICATIONS, INC., PURSUANT TO THE CITY OF
MIAMI BEACH, FLORIDA CABLE TELEVISION ORDINANCE
NO. 2001-3289 GRANTING A FRANCHISE TO OWN, OPERATE
AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE
CITY OF MIAMI BEACH, FLORIDA, AND SETTING FORTH
CONDITIONS ACCOMPANYING THE RENEWAL OF SUCH
FRANCHISE AND PROVIDING FOR REGULATION AND USE
OF SUCH SYSTEM.
THIS AGREEMENT (the "Franchise Agreement"), effective this 10th day of January, 2001,
is by and between the CITY OF MIAMI BEACH ("the City") and INTERLINK
COMMUNICATIONS PARTNERS, LLC dPo/a CHARTER COMMUNICATIONS, INC.,
("Charter").
WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§521
et seq., the City may grant or renew a franchise to construct, operate and maintain a cable television
system; and
WHEREAS, on January 10, 2001, the City Commission of Miami Beach, Florida
("Commission"), adopted Ordinance No. 2001-3289, 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, Charter desires to renew its franchise to construct, install, maintain, and operate
a cable system in the City, and has applied to the City for a renewal of such franchise; and
WHEREAS, the construction, installation, maintenance, and operation of such a system
involves the use and occupation of the Streets of the City, over which the City exercises
governmental control; and
WHEREAS, the Commission has evaluated Charter's application in light of the requirements
of Federal and State law and the Cable Ordinance, and has conducted public hearings concerning
Charter's request and application; and
WHEREAS, the Commission has relied on Charter's representations both oral and written
and has considered all information presented to it by Charter, the City Staff, the City' s Ad Hoe Cable
Advisory Board the City's consultants, and the public; and
WHEREAS, based on said representations and information, the Commission has determined
that a renewal of a nonexclusive franchise to Charter 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
Cable Ordin~,ce, is consistent with the public interest; and
WHEREAS, the Commission determined to grant Charter a non-exclusive franchise to own,
construct and operate a cable television system within the City, subject to the terms and conditions
of the Cable Ordinance and subject also to the City and Charter entering into a franchise agreement;
and
WHEREAS, the City and Chatter have reached agreement on the terms and conditions of
such a franchise agreement.
NOW, THEREFORE, in consideration of the City's renewal of Charter'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 Charter's promise to provide cable
service to residents of the City pursuant to the Cable Ordinance and under the terms and conditions
set forth herein, and in consideration of the promises and undertakings herein, and other good and
valuable consideration, the receipt and the adequacy of which is hereby acknowledged, the franchise
is hereby granted and
THE SIGNATORIES DO HEREBY AGREE THAT THE ABOVE RECITALS ARE TRUE
AND CORRECT AND INCORPORATED HEREIN.
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
Section 1. Definitions.
Except as otherwise provided herein, the definitions in Section 3 of the Cable
Ordinance of the City of Miarni Beach, Florida, shall govern this Franchise Agreement. In addition,
the following definitions shall apply:
A. Cable Ordinance shall mean Ordinance No. 2001-3289 and all amendments thereto,
and as said Cable Ordinance has and may hereinafier be amended, as codified in Sections ~
through ~ of the Code of the City.
B. Franchisee or C.harter shall mean Interlink Communications Partners, LLC d/b/a
Charter Communications, Inc. ("Charter") and its lawful and permitted successors, assigns and
transferees pursuant to this Franchise Agreement and the Cable Ordinance.
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 Franchisee shall be deemed effective upon receipt. Notice to the City
shall be effective upon receipt by the City Manager.
Section 2. Grant of Franchise.
A. Subject to the terms of this Franchise Agreement and the Cable Ordinance, the City
hereby grants Franchisee a franchise (the "Franchise") for the right and privilege to own, construct,
install, maintain and operate a cable television system within the Franchise Area.
B. The cable system Franchise created herein shall be used and operated only for the
purposes of providing cable television services unless and until Franchisee obtains written
authorization from the City, as required by City Ordinance, to provide other services, including but
not limited to, telecommunications, telephony and non-cable video services, unless and until the City
is otherwise prohibited by applicable law from the exercise of such authority. However, it is hereby
agreed that cable modern or other Internet services provided over the cable system, including but not
limited to the provision of access as well as any other transmission whether video, audio or data, and
content enhanced services provided via the cable system shall be considered a cable service for the
purpose of this agreement and the Cable Ordinance subject to all terms and conditions herein, unless
otherwise prohibited by applicable federal, state or local law. Notwithstanding anything contained
herein to the contrary the parties recognize that Franchisee currently provides cable telephony
services to subscribers in the City over the cable system. It is hereby agreed that Franchisee may
continue to provide such service so long as Franchisee agrees to include the revenues from sam
within the Gross Revenues on which Franchise Fees are calculated and to otherwise comply with
the provisions of Ordinance No. 2001-3289 and the terms and conditions of this Agreement.
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 Franchise.
Section 3. Term of Franchise.
This Franchise shall be for a period of ten (10) years unless otherwise sooner terminated or
otherwise extended in accordance with the terms of this Franchise Agreement. The Franchise shall
commence upon the date of the Commission resolution approving the renewal of the Franchise. This
Franchise Agreement is subject to all other requirements and conditions set forth in this Franchise
Agreement and in the Cable Ordinance for a grant of a Franchise to become effective, except to the
extent such requirements are modified or waived as expressly set forth herein.
Section 4. Non-Exchsive 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 Subject to Communications Act, State Law and Ordinance.
~. This Franchise Agreement is subject to and shall be governed by all terms, conditions
and provisions of Title II of the Communications Act of 1934, 47 U,S.C. §201 et seo., any
amenaments thereto, and any other applicable provision of Federal, State or local law.
B. This Franchise Agreement is subject to and shall be governed by all terms, conditions
and provisions of the Cable Ordinance, in addition to the terms, conditions and provisions set forth
in this Franchise Agreement. Franchisee hereby waives any rights it may have to challenge the
Cable Ordinance and this Franchise Agreement and will not assert any proceeding, any claim to the
contrary.
Section 6. Franchisee Subject To Other Laws, Police Power.
A. The Franchisee is subject to and agrees to comply with all applicable local, city, State
and Federal laws, ordinances, rules, regulations and orders.
B. The Franchisee shall at all times be subject to all lawful exercise of the police power
of the City, and this Franchise Agreement is not intended to limit the City's exercise of such power
in any way.
Section 7. Reservation of Rights.
A. It is explicitly understood that this Franchise Agreement shall be construed in
accordance with the laws of the State of Florida and Federal law, including, but not limited to, the
rules and regulations promulgated by the Federal Communications Commission.
B. The City reserves the right to adopt and incorporate by reference herein, by ordinance,
any additional terms, conditions, or regulations as it shall find consistent with the lawful exercise
of its powers as granted by the Constitution and laws of the State of Florida. Additional regulations
adopted by the City shall be incorporated into this Franchise Agreement and complied with by
Franchisee within thirty (30) days of the date of adoption of such additional regulations.
C. 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.
Section 8. Insurance.
A. Franchisee shall obtain and maintain insurance of the types and minimum amounts
required in Section 11 of the Cable Ordinance 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 Commission 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 the Cable Ordinance, 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
7
or omission complained of is authorized, allowed or prohibited by the Cable Ordinance or this
Franchise Agreement, provided, however, that Franchisee's obligation hereunder shall not extend
to any claims caused by the misconduct or sole gross negligence of the City, its officials, boards,
commissioners, agents or employees. Tl~s provision includes, but is not limited to, the City's
reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings; and
claims arising out of copyright infringements or a failure by the Franchisee to secure consents from
the owners, authorized distributors, or providers of programs to be delivered by the cable system,
claims arising out of Section 638 of the Communications Act, 47 U.S.C. 558, and claims against the
Franchisee for invasion of the right of privacy, defamation of any person, finn 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 the Cable Ordinance. 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 the Cable Ordinance, 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
8
construction bond in favor of the City in the lesser amount of Two Hundred Fifty Thousand Dollars
($250,000.00) or one hundred percent (100%) of the value of the construction. If such construction
bond is not furnished to the City ten (10) days prior to the start of any such construction,
construction shall be delayed until such time as the construction bond is provided in a form
acceptable to the City Manager. The construction bond must be approved by the City Manager or
his/her designee, which approval shall not be unreasonably withheld. The construction bond shall
be maintained until said construction work hereof i s completed and for a period not to exceed twelve
(12) 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 the Cable Ordinance.
C. Franchisee shall utilize, with the owner's permission, existing conduits, poles, or other
facilities whenever feasible. The Franchisee has the duty and the responsibility to obtain or establish
the existence of an easement or dedication for its use. Copies of agreements for use of conduits or
other facilities shall be filed with the City, pursuant to the Cable Ordinance.
D. All of Franchisee's transmission lines, equipment, structures and other facilities shall
be installed, located and maintained so as to cause minimum interference with the rights and
convenience of property owners. The City may issue such rules and regulations concerning the
installation and maintenance of a cable system installed in, on, or over public streets, as may be
consistent with the Cable Ordinance.
E. All safety practices required by applicable federal, state or local law or accepted
industry practices and standards shall be used during construction, maintenance and repair of the
cable system.
F. As required by the City, and upon receipt of written notice from the City, Franchisee
shall remove, relocate, replace or modify at its own expense (except as otherwise required by law)
its facilities within any public Street for the reasons set forth in Section 21(B) of the Cable
Ordinance.
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. Any such permit fees shall be considered separate and apart
from any Franchise fee, tax or other fee or tax imposed by any government authority. Franchisee
shall, at its own expense, restore such property pursuant to the requirement of the Cable Ordinance.
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 the Cable Ordinance.
H. If the City is required to perform emergency street work requiring relocation of
Franchisee's facilities in the streets, then Franchisee shall reimburse the City for its reasonable costs
associated with such relocation. In the event that they City receives reimbursement from Miami-
10
Dade County for such work, it is hereby agreed that Franchisee's payment obligation to the City
shall be reduced by that mount received by the City from the County.
I. Franchisee shall not place facilities, equipment or fixtures where they will
unreasonably interfere with any other companies lawfully using the public rights-of-way serving the
residents of the City. All such facilities, equipment or fixtures placed in any public street or public
right-of-way shall, to the best of the Franchisee's ability, be placed close to the line of the lot abutting
on the public street, in a manner so as not to interfere with use of the public street.
Section 12. Minimum System Facilities and Services.
A. Pursuant to Section 14 of the Cable Ordinance, Franchisee's cable system shall, at
a minimum, be able to pass frequencies of at least 750 MHZ; have a minimum channel capacity of
at least seventy-eight (78) video channels; have two-way interactive capability; and
upstream/downstream 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 facilities of the City that
may be constructed or opened within the City or annexed areas during the term of this Franchise
Agreement, where Franchisee's plant is the closest franchised cable operator to a specified facility.
Such service shall include the basic cable service tier and all programming offered on the cable
programming service tier including any additional programming added to those two levels of service.
High Speed Internet access for one (1) user shall be offered to the City at no charge.
C. School Commitments.
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Franchisee hereby agrees to provide, at minimum, the products and services described
in Section 12(C)(1 ~7) herein to all public schools serving any grades K-12 (as defined in Title I oF
the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 421 et seq., as mended) within
the territorial boundary of the City. When Franchisee receives prior notice of the construction of a
new school, 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.
1. Franchisee shall, at a minimum, provide a service connection at one outlet per
floor in all public 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 mended), 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 mended) 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),
12
including, but not limited to those technical standards implemented by franchisee, and to bear the
cost thereof. Free BST, free CPST and free internet service will be provided to each outlet in all
connected public and private schools.
3. Franchisee will provide free educational program listings 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. Franchisee hereby agrees to provide schools within the City with at minimum
one free cable modem connection per floor, and at a minimum, unlimited free access to the Internet.
Additional cable modems shall be provided by Franchisee at no more than Franchisee's actual cost.
Operational support and services (for example, assisting connected schools in setting up and
maintaining reliable Intemet connections), will be provided to connected schools, upon request. In
addition, no less than once per year Franchisee will conduct or sponsor a training program in the City
to educate teachers about its on-line service and to provide connected schools with an opportunity
for hands-on training.
6. Franchisee hereby agrees to provide all the municipal facilities with at
minimum one cable modern and one free connection per floor to on-line service. At a minimum,
13
such on-line service will provide flee unlimited access to the Internet. Additional cable modems
shall be provided at Franchisee's actual cost or less. Operational support and services will be
provided to the City upon request.
7. Franchisee agrees not to seek to recover the cost for these connections as
external or other costs nor shall such costs be considered fees, taxes or in-kind benefits or otherwise
subject to credit against any fee or tax imposed by any governmental entity.
8. Nothing herein shall preclude Franchisee from providing benefits to schools
or municipal facilities 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.
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G. The Franchisee and the City recognize that the technology of cable systems and the
services available are advancing at a rapid rate. Thus, Franchisee hereby agrees to provide the City
and its subscribers, during the term of this Franchise Agreement, with at minimum, comparable
technology, products, services, and benefits which are provided by the Franchisee, or its parent, any
subsidiary or affiliate to any other community of comparable or smaller populations.
H. Upon the request of the City Manager, the Franchisee shall lease, on the same terms
and conditions as provided to any other franchising authority or community served by the
Franchisee, its parent, subsidiary or affiliate, 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 on any other non-profit for purposes not
competitive with services offered by Franchisee. The Franehisee shall allow the City to co-locate
necessary equipmere with the cable system and to interconnect such equipment into the cable
system, at the City's cost, provided said equipment does not interfere with the cable system's
technical integrity.
Section 13. Technological Improvements to System.
A. The Franchisee and the City recognize that the technology of cable systems and the
services available are advancing at a rapid rate. Thus, Franchisee hereby agrees to provide the city
and its subscribers, during the term of this agreement, with at minimum, comparable technological
improvements, products, services, and benefits which are provided by the Franchisee, its parent,
affiliate or subsidiary to any other community. For purposes of this Section, Franchisee shall not
15
be obligated to offer within the City any technology being offered on a limited test basis to less than
one hundred (I00) subscribers in another community.
B. Upon request of the City, after the fifth anniversary but prior to the seventh annual
anniversary of the Franchise herein granted the Franchisee shall, but not more than annually, report
in writing to the City Manager, in a form satisfactory to the City Manager, on technological advances
and the availability of new and enhanced services for cable systems. The report shall state what
plans, if any, the franchisee has for the upgrade or rebuilding of its cable system to the State-of-the-
Art. The report shall also contain an analysis of the impact of updating the cable system to include
new advances upon the Franchisee's technical plant, customer service, subscriber rates, and the
Franchisee's financial capabilities. To the extent known by Franchisee, the Franchisee shall also
provide the City Manager with a comparison of the services, facilities and technologies utilized by
Franchisee or any parent, affiliate or subsidiary of Franchisee in or any other MSO, including a list
of each jurisdiction in which new technologies have been used or where cable television systems are
being upgraded to include new technologies and provide new services, and an assessment of the
costs associated with implementing the new technologies with the City.
C. In the event that Franchisee, pursuant to Section B above, provides to the City and
the City accepts a plan to activate an upgrade or rebuild of the system to State-of-the-Art no later
than between the 7th and 9th annual anniversary of the effective date hereof, the City may agree to
extend the term of this Franchise from ten (10) years to fifteen (15) years from the effective date
hereof pursuant to such terms and conditions as may be mutually agreed.
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Section 14. Technical Standards.
Franchisee shall maintain and operate its cable system, at a minimum, in full compliance
with FCC regulations and the Cable Ordinance. Franchisee shall further comply with each of the
following requirements:
A. All antennas, supporting structures, and outside plant used in operating and
maintaining Franchisee's cable system within the City shall comply with all generally accepted
industry standards and all applicable federal, state, county, City and/or utility laws, ordinances, rules,
regulations and applicable lease agreements relating to tower structures and outside plant.
B. All construction, installation and maintenance of Franehisee'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 proofofperfurmance tests as required by Section
15 of the Cable Ordinance 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 and as it may be amended from time to time, published by the
National Cable Television Association. Upon written request, Franchisee will provide proof of
performance test results within thirty (3 0) days to the City Manager. Franchisee will provide the City
17
Manager at least ten (10) days advance written notice of when a proof of performance test is
scheduled so that the City may have an observer present.
Section 16. Access Channels and Facilities.
A. Access Channel Cat~acity. Franchisee shall provide to the City for its exclusive, at
least one (1) and a maximum of two (2) activated 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. As of the effective date hereof, Franchisee shall provide one (1) dedicated
access channel. The channel shall be activated from the City of Miami Beach City Hall located at
1700 Convention Center Drive, Miami Beach, Florida 33139. 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, within thirty (30) days of receipt
of the request of the City, provide the City with a second Access Channel at no charge. Both parties
agree that computer generated messaging shall not count toward the six (6) hours per day
programming test required to trigger the obligation to provide a second channel.
2. 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.
3, Franchisee shall make available to all subscribers in the City on the basic tier
all government and education channels provided by Miami-Dade County separate and apart from
those channels required pursuant to Section 16(a)(1 ) herein.
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4. 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 Miami-Dade County as may be provided by Franchisee that are technically and
financially feasible.
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 City Hall pursuant to Section 16 hereof may be transmitted downstream to all subscribers on
any 9fthe downstream access channels provided pursuant to Section 16 hereof. The City Hall will
be linked to the headend by the most technically feasible and cost effective means, Franchisee will
make available the necessary, personnel equipment system electronic and distribution equipment to
Franchisee's headend and distribution system to make possible the live cablecasting of the
programming from a City Hall. In addition, Franchisee shall provide the transmission capability and
closed capacity to allow the City to cablecast all programming from remote locations other than City
Hall. The City will be responsible for sending the signal to City Hall or the Franchisee's headend.
6. In addition to the foregoing provisions, in the event that Franchisee owns or
operates a production facility in Miami-Dade or Broward County, Franchisee agrees to provide the
City with the technical ability to transmit programming over the access channels to subscribers
within the City directly from any such facility.
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7. Upon request, Franchisee shall cablecast all City Commission, Board and
Committee meetings live in their entirety and replay same in their entirety as requested by the City
Manager or his/her designee.
8. Franchisee agrees that all access channels will be provided to subscribers on
the system as a part of basic service and that, if such information is supplied to Franchisee or known
by Franchisee pursuant to its responsibilities under Section 16 hereof, Franchisee will publicize
programming on the access channels as a part of any ordinary printed program listings it provides
or will include access channel programming listings in any monthly program guide sent to
subsgribers, provided that information concerning access channel programming is provided to or
becomes known to Franchisee within the time that other programmers are required to provide such
information for inclusion in such program listings or program guide.
9. Franchisee agrees that any materials and services provided pursuant to this
Section 16 do not constitute a tax, fee or in-kind service as defined by federal, state, or local law.
B. Access Facilities, Equipment and Support.
1. Consistent with Section 35 hereof, Franchisee, shall permit other cable
Franchisees to interconnect to Franchisee's system in the City so as to permit both live and delayed
cablecast of all City Commission meetings and other education/governments, events and programs,
to be available to all cable 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 specifications to enable all material cablecast on the access channels provided
pursuant to this Franchise Agreement to meet all video and audio signal quality standards adopted
20
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 agrees to provide the City with at minimum 300:30 second spots
per year to advertise municipally sponsored events during reasonable viewing periods for the term
of Agreement.
3. The City may cablecast character generated information on a designated
Access Channel from the location designated at any time of its choosing.
4. Subject to availability, Franchisee shall make any studio facilities, that it
operates in Miami-Dade or Broward County during the term oF this Franchise Agreement as well
as a remote production truck, available for use by the City and area educational institutions for non-
commercial government and educational access programming.
5. Franchisee hereby agrees to provide to the City a) a grant in the amount of
One Hundred Twenty Five Thousand Dollars ($125,000.00) to be paid to the City no later than the
date of the City Commission approval of this Franchise and b) a grant in the amount of Seventy Five
Thousand Dollars ($75,000.00) to be paid to the City no later than the date of the fifth (5~h)
anniversary of the effective date hereof; provided, however, that in the event any state or federal
21
statute, law or regulation is adopted which would have the effect of prohibiting the aforesaid
payment of Seventy-Five Thousand Dollars ($75,000) on the fifth (5th) anniversary of this Franchise
Agreement, said amount shall be accelerated and shall become immediately due and payable to the
City on the business day immediately preceding the effective date of such statute, law or regulation.
6. Franchisee hereby agrees that the facilities, equipment, services,, and all other
support to be provided by Franchisee pursuant to Section 12(I) and this Section 16 constitute capital
costs which are required by the Franchise to be incurred by Franchisee for public, educational, or
governmental access facilities within the meaning of Section 622(g)(2)(C) of the Communications
Act, .47 U.S.C. § 542(g) (2) (C); that such grant does not constitute a franchise fee tax or in-kind
payment or contribution within the meaning of Communications Act, State law, the Cable Ordinance
or this Franchise Agreement; and that Franchisee hereby waives, and will not assert in any
proceeding, any claim to the contrary.
Section 17. Commercial Leased Access.
Franchisee shall provide Leased Access Channels as required by Federal law.
Section 18. Emerlzencv Use of Facilities.
Franchisee shall at minimum 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.
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Section 19. Lock-out Devices.
Franchisee shall make available at reasonable charge to any residential subscriber, upon the
request of such subscriber, a "parental guidance" or "lock-out" device which shall permit the
subscriber, at his or her option, to eliminate the audio and visual transmissions from any channel
reception to the extent technically feasible.
Section 20. Closed-Circuit Captionin~ for the Hearin~ 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.
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 Franchise Agreement, promptly
furnish, maintain, and continue to provide all services distributed over the system to any person at
hi s 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.
B. 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.
23
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 the Cable
Ordinance less only that amount due to Miami-Dade County pursuant to applicable law; or (2) ira
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 shall calculate gross revenues for purposes of determining the Franchise fee owed in
accordance with the Cable Ordinance.
B. Franchisee shall pay the Franchise fee to the City in full compliance with the
requirements set forth in Section 17 of the Cable Ordinance.
C. The quarterly statements required to be filed by the Franchisee with the City pursuant
to Section 17 (D) of the Cable Ordinance 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 the Cable Ordinance, this Franchise
24
Agreement, or local, State or Federal law, including, without limitation, Franchisee's obligation to
pay the proper franchise fee amount owed.
E. Following the expiration or the termination for any reason of its Franchise, Franchisee
shall pay the franchise fee owed as of the date that its operations ceased within ninety (90) calendar
days of ceasing such operations. Such payment shall be accompanied by a gross revenues audit
report prepared by a certified public accountant showing the revenues received by Franchisee since
the end of the previous fiscal year.
F. Franchisee expressly agrees that: (i) the Franchise fee payments to be made pursuant
to th!s Section shall not be deemed to be in the nature of a tax; (ii) such Franchise fee payments shall
be in addition to any and all taxes of a general applicability and not applicable solely to cable
television operations within the City or other fees or charges which Franchisee shall be required to
pay to the City or to any state or federal agency or authority, as required herein or by law, all of
which shall be separate and distinct obligations ofFranchisee; (iii) Franchisee shall not have or make
any claim for any deduction or other credit of all or any pan 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 pan 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
25
credit from or against any of its Franchise fee obligations, each of which shall be deemed to be
separate and distinct obligations of Franchisee; and (vi) the Franchise fee specified herein is the
minimum fair market value for the grant hereunder of a franchise for use of the streets, including all
public easements, public rights-of-way and other entitlement to use, occupy or traverse public
property, for the purpose of operating a cable television system.
Section 24. Reports and Records.
Franchisee hereby agrees to provide to the City Manager or his designee with all of the
information as required under Sections 17 and 18 of the Cable Ordinance.
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 the Cable Ordinance.
B. Pursuant to the Cable Ordinance, the City shall have the fight to inspect, at
Franchisee's 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 the Cable
Ordinance thereto or applicable Federal and state 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 informatidn.
C. The City shall accord all books and records that it inspects under this Section the
degree of confidentiality such books and records are entitled to under Federal and State law.
26
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 the Cable Ordinance, the City shall have the right to inspect Franchisee's
facilities and property during Franchisee's normal business hours and upon reasonable notice.
Section 26. Customer Service Requirements.
Franchisee agrees to comply with each of the customer service requirements set forth in
Section 18 of the Cable Ordinance.
Section 27. City Purchase of Cable Svstem.
The City may, upon the recommendation of the City Manager and the approval of the
Commission, acquire ownership of and operate Franchisee's cable system in accordance with
Section 31 of the Cable Ordinance.
Section 28. Modification of Franchise.
Franchisee shall file an application with the City Manager for any modification of its
franchise pursuant to Section 9 of the Cable Ordinance. 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
27
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 at minimum consider the factors set forth
in Section 23 of the Cable Ordinance.
B. Franchisee shall file an application to transfer its franchise or to transfer control of
Franchisee in ~11 compliance with Sections 9 and 23 of the Cable Ordinance.
Section 30. Procedures for Requesting Approval of Transfer.
In addition to the requirements set forth in Sections 9 and 23 of the Cable Ordinance, the
following procedures shall be followed by Franchisee in requesting the City's consent to transfer its
franchise or to transfer control of Franchisee.
A. At least one hundred twenty (120) calendar days prior to the contemplated effective
date of a transfer, Franchisee shall submit to the City Manager an application for approval of the
transfer. Such application shall include the following:
1. A statement of the reason for the contemplated transfer.
2. The name, address and telephone number of the proposed transferee.
3. A detailed statement of the corporate or other business entity organization of
the proposed transferee, including but not limited to the following:
(a) The names, business addresses, state of residence and country of
citizenship of all general partners 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 five
28
percent (5%) 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 (if in existence)
immediately preceding the date of the request for transfer approval, and a letter or other acceptable
evidence in writing from a duly authorized officer of the proposed transferee setting forth a clear and
accurate description of the amount and sources of funding for the proposal transaction and its
sufficiency to provide whatever capital shall be required by the proposed transferee to construct,
install, rebuild, maintain and operate the proposed system in the City. If the corporate or business
entity organization of the proposed transferee has not been in existence for a full three (3) years, the
proposed transferee shall submit a certified financial statement for the period of its existence.
(e) A description of all previous experience of the proposed transferee in
operating cable television systems and providing cable television services or related or similar
services, including a statement identifying, by place and date, any other cable television franchise(s)
awarded to the proposed transferee, its parent, subsidiaries, or affiliates; the status of said
franchise(s) with respect to completion thereof; the total estimated cost of completion of such
29
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 any 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.
30
4. Upon request, the proposed purchase price of the cable system, and the terms
and conditions of the proposed transfer. All such discussions shall be deemed confidential and not
become a public record to the extent and pursuant to procedures of applicable federal and state law.
5. A detailed statement describing Franchisee's level of compliance with each
and every provider of the Cable Ordinance and this Franchise Agreement.
6. Any unauthorized transfer of the cable system, its assets, stock, control or this
franchise shall result in the Franchisee being subject to liquidation charges in the mount of One
Hundred Thousand ($100,000) Dollars payable to the City.
Section 31. Renewal of Franchise.
The provisions of the Cable Ordinance 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 the Cable Ordinance to the extent such requirements are not prohibited by
applicable law.
Section 32. Rates.
A. Nothing in the Cable Ordinance 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.
31
B. Franchisee further agrees that it shall not increase rates or charges for basic cable
service, installation, disconnection, or equipment rental without at least thirty (30) days prior notice
to subscribers and the City.
C. Pursuant to Section 20 of the Cable Ordinance, 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.
E. Franchisee may provide service to subscribers pursuant to bulk contracts provided
the terms and conditions of such contracts are consistent with applicable federal, estate and local law.
Section 33. Security Fund.
A. Pursuant to Section 12 of the Cable Ordinance, Franchisee shall provide the City a
security fund or in the alternative a bond or letter of credit, as approved by the City Manager, in
the amount of Fifty Thousand ($50,000.00) Dollars as security for the faithful performance of all
provisions of the Franchise Agreement, the Cable Ordinance, and all applicable State and Federal
law. If such security fund or corporate guarantee is not furnished to the City within thirty (30) days
of the date of Commission resolution approving the grant of the Franchise, then Franchisee shall pay
to the City Manager a fine in the amount of One Thousand Dollars ($1,000.00) per day, beginning
on the 31st day, until the date on which the security fund or corporate guarantee is received by the
City. In the event said guarantee is not received within sixty (60) days of the date after the
Commission resolution approving the grant of the Franchise, this Franchise Agreement and the grant
of the Franchise will become null and void without further action by the City.
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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 the Cable Ordinance, the City may immediately withdraw that amount, with
interest and any costs, from the security fund or make such equivalent claim against the guarantee.
Upon such withdrawal or claim, the City shall notify Franchisee in writing of the amount and date
of the withdrawal.
C. Within thirty (30) calendar days after notice to Franchisee that an amount has been
withdrawn by the City from the security fund, Franchisee shall restore the security fund to its
original amount. If Franchisee fails to restore the security fund to the original amount within that
thirty (30) calendar day period, such failure shall be considered a material breach of this Franchise
Agreement and a violation of the Cable Ordinance and shall constitute grounds for revocation of the
Franchise or other enforcement action by the City.
D. Where a bond or letter of credit is provided in lieu of a security fund, Franchisee shall
pay the City the amounts of all claims against said bond or letter of credit within thirty (30) calendar
days after notice of such claim, maintaining the security notwithstanding the form at its 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 the Cable
Ordinance, and shall constitute grounds for revocation of the franchise or other enforcement action
by the City.
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E. The security fund or an equivalent amount shall become the property of the City in
the event the Franchise is revoked. Franchisee is entitled to return of the balance of the security fund
that remains following any other form of expiration of the Franchise, including denial of renewal,
provided that there is no outstanding default or unpaid amounts owed to the City by Franchisee.
F. If the Franchise terminates for reasons other than revocation, any security fund, bond
or letter of credit will be maintained by the Franchisee for one (1) year from the date of termination
and the remaining fund will be returned to Franchisee one (1) year from the termination date of the
Franchise, provided there is no outstanding default or unpaid amounts owed to the City by
Franchisee.
G. The rights reserved to the City under this Section are in addition to all other rights
of the City, whether reserved in this Franchise Agreement or in the Cable Ordinance, or authorized
by other law, and no action, proceeding or exercise of a right with respect to the security fund will
affect any other right the City may have.
Section 34. Enforcement Remedies.
A. Liquidated DamaRes. Because the City may suffer damages from any violation by
Franchisee of this Agreement or of the Cable Ordinance 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 Two
Thousand Dollars ($2,000) per day for each day or part thereof, the deficiency continues.
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2. For material failure to provide data, documents, reports or information in a
timely manner as required by this Franchise Agreement or by the Cable Ordinance, 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 the Cable Ordinance 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 Five
Hundred Dollars ($500) 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
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may collect liquidated damages owed, either through draw-down of the security fund as provided
in Section 11 of this Franchise Agreement, or through any other means allowed by law provided
however that no fines or liquidated damages shall be assessed while litigation is pending in a court
of competent jurisdiction.
C. Revocation or Termination of Franchise. Franchisee's franchise is subject to
revocation pursuant to Section 24 of the Cable Ordinance for any of the reasons set forth therein.
In the event the City exercises its right to revoke the franchise, the procedures set forth in Section
24 of the Cable Ordinance shall apply.
Section 35. Area Wide-Interconneetion.
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 for the purpose of sharing educational
andgovemmentprogramming. Intercormectionofsystemsshallperrnitinteractivetransmissionand
reception of program material, and may be done by direct cable connection, microwave link,
satellite, or other appropriate method.
B. Upon receiving the request of the City to interconnect with cable systems, Franchisee
shall, where it does not own the affected system or systems, immediately initiate good faith
negotiations with the operators of the other affected system or systems in order that costs for
construction and operation of the interconnection link may be shared equitably among the systems.
Such calculation shall be based on the number of subscribers in the City setwed by each system.
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Franchisee shall report to the City the results of such negotiation no later than thirty (30) days
after the City's request. Where Franchisee owns the affected system, Franchisee shall report to the
City on the timing, method and cost of interconnection within thirty (30) days of the City's request.
C. The Franchisee may be granted reasonable extensions of time to interconnect. The
City shall rescind its request to interconnect upon petition by the Franchisee to the City, if the City
finds that (1) the Franchisee has negotiated in good faith and has failed to obtain an approval from
the system or systems of the proposed interconnection; or (2) the cost of the interconnection would
be unreasonably high.
D. Franchisee shall make all reasonable efforts to cooperate with any designated access
organization, interconnection corporation, regional interconnection authority or City, county,
state or federal regulatory agency which may be hereafter established for the purpose of regulating,
financing, or otherwise providing for the interconnection of cable systems beyond the
boundaries of the franchise area.
Section 36. Written Notice of Acceptance.
No later than the date of the Commission 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, unless the City Manager agrees in writing to extend such period.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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Section 37. Execution in Counterparts.
This Franchise Agreement may be executed in counterparts.
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day
and year first written above.
. , ~ "'[Seal]
CITY OF MIAMI BEACH, FLORIDA
By: n~O.~
ei e asdin
N s
Mayor
INTERLINK COMMUNICATIONS
PARTNERS, LLC d/b/a CHARTER
COMMUNICATIONS, INC.
ATTEST:
Title: VP Government Relations
Natne:
Title:
APPROVED AS TO
FORM & LAN~
& FO~ EXEC'U'nON
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