HomeMy WebLinkAboutR-02-0917J -02-572(b)
6/5/02
RESOLUTION NO. 02w& 917
A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT(S), APPROVING THE CHANGE OF
CONTROL OF THE CABLE TELEVISION LICENSE
GRANTED TO MIAMI TELE -COMMUNICATIONS INC.
(THE "LICENSEE") FROM AT&T BROADBAND LLC TO
AT&T COMCAST CORPORATION; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, on March 8, 2002, the City of Miami, Florida
received an FCC 394 and an Application for City Consent by the
City Commission to the proposed change of control of the cable
television license granted to Miami Tele-Communications Inc.
(the "Licensee") from AT&T Broadband LLC ("AT&T Broadband") to
AT&T Comcast Corporation ("AT&T Comcast"); and
WHEREAS, pursuant to Ordinance No. 11936 of the City of
Miami, Florida and the license issued under Resolution No. 00-
489 ("License Agreement" or "License"), no such change of
control may occur without prior approval of the City Commission
of the City of Miami, Florida; and
WHEREAS, the City has required that the applicant fulfill
its obligations pursuant to the Ordinance and License Agreement
and provide information on the proposed transaction
CITY C0101ISSION I
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including details on the legal, financial, technical and other
qualifications of the transferee and on the potential impact of
the transfer on service; and
WHEREAS, under FCC Rules, 47 CFR Section 76.502, the City
has 120 days plus any extensions thereto from the date of
submission of a completed FCC Form 394, together with all
Exhibits, and any additional information required by the License
Agreement or applicable state or local law, to act upon an
application to sell, assign, or otherwise transfer controlling
ownership of a cable system; and
WHEREAS, Licensee has represented to the City that it has
taken all actions and implemented all practices necessary to
insure that the Licensee is, unless otherwise noticed, in
compliance with all provisions of the Ordinance and License
Agreement; and
WHEREAS, the City has noticed Licensee of all known
material outstanding violations and Licensee has cured or agreed
to cure in a manner approved by the City those violations and
has paid or agreed to pay to the City all underpayments and
costs known to have been incurred as a result of such non-
compliance; and
WHEREAS, the City has required written acceptance from
Licensee and written acceptance by AT&T Comcast Corporation of
the terms and conditions of this Resolution, the Ordinance and
Page 2 of 7 02—
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License Agreement by affidavit as a condition precedent to
adoption of this Resolution (affidavit attached as Exhibit A);
and
WHEREAS, in the event the proposed transaction between AT&T
Broadband LLC and AT&T Comcast Corporation is not consummated
within one hundred twenty (120) days of the date hereof or does
not reach final closure for any reason, or in the event such
closure is reached on terms substantially or materially
different to the terms described in the FCC Form 394 and
exhibits thereto, the approval granted in this Resolution shall
be null and void.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF MIAMI, FLORIDA, THAT:
Section 1. The foregoing recitals are approved and
incorporated by reference.
Section 2. To the extent required, the City of Miami,
Florida, consents to the change in ultimate control of the City
of Miami, Florida's Cable Television License Agreement granted
to Miami Tele-Communications Inc. (the "Licensee") from AT&T
Broadband LLC to AT&T Comcast Corporation.
Page 3 of 7 02- 917
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 the Licensee under the Ordinance,
the License Agreement and any and all amendments and agreements
related thereto.
Section 4. That the consent granted herein does not and
should not be construed to constitute a waiver of any right of
the City or Licensee under applicable law including, but not
limited to, the Ordinance or the License Agreement; and further,
this consent shall not prejudice the City's rights with respect
to the enforcement, renewal or transfer of the current License
Agreement and any and all amendments or agreements related
thereto.
Section 5. That the consent herein granted is
conditioned upon (a) Licensee's assurances set forth in its
affidavit submitted to the City on and
attached as Exhibit A; (b) Licensee assurances as set forth in
attached Exhibit B; and (c) payment to the City no later than
July 13, 2002, of cost recovery for all costs incurred by the
City related to the evaluation the transfer application and the
transfer process including, but not limited to, consulting fees
and legal fees.
Page 4 of 7 02— 917
Section 6. That this Resolution shall have the force
and effect of continuing the Agreement between the Licensee and
the City, as the License Authority, to the extent consistent
with Ordinance No. 11936, the License Agreement and any and all
amendments and agreements related thereto including, but not
limited to attached Exhibits A and B.
Section 7. That the City reserves all of its rights
pursuant to Federal, state and local law including, but not
limited to the rights in (a) the license renewal process
including, but not limited to, the right to consider violations
of the license by the Licensee, either prior to or subsequent to
the merger of AT&T Broadband LLC and AT&T Comcast Corporation;
(b) the license transfer process including, but not limited to,
the right to act upon any application to sell, assign or
otherwise transfer any interest in the Licensee or the cable
system; and (c) the enforcement of the Ordinance, the License
Agreement, and any and all amendments, agreements and
assurances attached thereto.
Section 8. That the consent granted expressly does not
waive and expressly reserves to the City of Miami, Florida, its
rights to fully exercise all applicable legal rights and
Page 5 of 7 02— 90
authority with regard to Licensee, AT&T Broadband LLC and AT&T
Comcast Corporation and their affiliates, parent or subsidiaries
in connection with any use of the City's rights-of-way not
authorized by the City including, but not limited to levying
fines or instituting litigation for trespass and ejectment.
Section 9. That the consent granted is an express non -
waiver
and reservation of
the
City's rights
and authority
against
Licensee and AT&T
Comcast
Corporation
for any License
violations that may exist including, but not limited to those in
connection with any unauthorized use of Licensee's or AT&T -
Comcast Corporation's facilities or facilities by any entity in
any way affiliated with a company in which Licensee or AT&T
Comcast Corporation, its affiliates, parent or subsidiary has an
interest.
Section 10. That the consent granted is subject to the
transferor's and transferee's compliance with all other
applicable legal requirements and the City does not waive and
expressly reserves the right to enforce full compliance with its
Ordinance and License requirements, whether or not any
non-compliance that may be determined arose before or after the
transfer of control from AT&T Broadband LLC to AT&T Comcast
Corporation.
Page 6 of 7 02— 917
Section 11. That this Resolution shall become effective
upon the date of its adoption herein.
PASSED AND ADOPTED this 22nd day of Auaust , 2002.
ATT ST:
P ISCILLA A. TH6MPSON
CITY CLERK
AS/fO FROM A ORRECTNESS
JILEOPAJURO VILARE
TTORNEY
rWV88-:smg:YMT
MANUEL A. DIAZ, MA
Page 7 of 7 02— 917
CITY OF MIAMI
CITY ATTORNEY'S OFFICE
MEMORANDUM
TO: Priscilla A. Thompson, City Clerk
FROM: Yamile Marrero-Trehy, Assistant City Attorney v 0
DATE: October 25, 2002
RE: Change of Control of Cable Television to AT&T/Comcast
Corporation
Resolution No.: 02-917
Enclosed please find original exhibits to be retained for
the above -referenced Resolution.
1832.
Should you have any questions please call me at (305) 416-
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Resolution R-02-917
Exhibit A
02- 917
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EXHIBIT A
UNCONDITIONAL ACCEPTANCE
OF TERMS OF
RESOLUTION NO. R-02-917
BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath deposes
and states that:
1. Affiants are, respectively, the Senior Vice President of AT&T Broadband, LLC
("AT&T Broadband") and the person authorized to execute this document on behalf of Miami Tele-
Communications, Inc., ("Licensee") andthe
�e3, of AT&T Comcast Corporation ("AT&T Comcast"), and the person
authorized to execute this document on behalf of AT&T Comcast, for the change in ultimate control of
the Licensee, as set forth on the FCC Form 394 received by the City of Miami, Florida ("City"), on or
about March 8, 2002 ("Change of Control")
2. Affiants are submitting this Affidavit as a condition precedent to the approval of the
Application for Change of Control of the Licensee from AT&T Corp. to AT&T Comcast.
3. Licensee, affirms that it is and will continue to be bound by and shall assume all the
lawful and applicable terms and conditions of the City's Cable Systems Ordinance, Ordinance No.
11936, ("Ordinance"), the license agreement between the Licensee and the City, ("License
Agreement") and any lawful amendments and agreements related thereto, including but not limited to
the Settlement Agreement attached to the Resolution approving the Change of Control of the Licensee
as Exhibit B, between the City and Licensee as settlement of the disputes contained therein
("Settlement Agreement") (the Ordinance, License Agreement and such amendments and agreements
are collectively referred to herein as the "License") and the Resolution of the City Commission of the
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City approving the Change of Control of the Licensee from AT&T Corp. to AT&T Comcast.
4. AT&T Comcast hereby attests and acknowledges that the Change of Control will not
affect, diminish, impair or supercede the binding nature of the existing valid ordinances, resolutions
and agreements applicable to operation of the cable system in the City, including but not limited to the
Ordinance, License Agreement, Settlement Agreement and any guarantees provided herein.
5. Licensee and AT&T Comcast recognize and acknowledge that the financial
qualifications of AT&T Comcast are an important and relevant consideration of the City for the
evaluation of the proposed Change of Control, and in particular, the assurance that sufficient financial
resources are available to Licensee to meet the obligations of the Licensee under the terms of the
License. Accordingly, Licensee and AT&T Comcast represent or warrant as follows:
(i) AT&T Comcast and Licensee represent and warrant that the Change of Control
will not have any adverse financial effect on the cable system, such that Licensee's financial resources
necessary to comply with the terms and conditions of the License are adversely affected. AT&T
Comcast acknowledges and agrees that from and after the Change of Control it will not take any action
that prevents the Licensee's full performance of the applicable provisions of the License and this
Unconditional Acceptance.
(ii) Licensee represents and warrants that after the proposed transaction, Licensee's
financial resources will be such as shall enable it to maintain and operate the cable system in
compliance with all requirements of the License.
6. Licensee and AT&T Comcast represent and warrant that all borrowings by Licensee,
AT&T Comcast and their Affiliates shall be recorded and reported in accordance with Generally
Accepted Accounting Principles (GAAP) and conform to the requirements of the Securities and
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Exchange Commission, as those principles and requirements may be amended from time to time.
7. Licensee and AT&T Comcast represent and warrant that Licensee will not be an obligor
for any debt that may be incurred by AT&T Comcast to meet cash funding requirements of the Merger
Agreement.
8. Licensee shall cooperate in any License compliance inquiry, including but not limited to
financial, customer service performance, call center records and financial and technical audits as
specified under the terms and conditions of the License. AT&T Comcast agrees that the records of the
Licensee, which are required to be maintained and are subject to inspection by the City, pursuant to the
License, shall be subject to inspection regardless of whether such records are maintained by Licensee
or AT&T Comcast, or any subsidiary or affiliate.
9. Licensee agrees that the City does not waive any right to require compliance with the
License by Licensee, whether or not any noncompliance is the subject of this Acceptance and hereby
assumes responsibility for any and all non-compliance under the License and/or the Ordinance.
10. This Exhibit A may be signed in counterparts.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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92- 917
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FURTHER AFFIANT SAYETH NAUGHT.
STATE OF FLORIDA
ss:
COUNTY OF BROWARD
MIAMI TELE -COMMUNICATIONS, INC.
� FFA
By:
Name:
Title: . "t 161K V r�-
BEFORE ME, the undersigned authority, personally appeared akn F14-/D1,41L
who is known to me RQM0- ally (o and upon being first duly sworn
acknowledged that 1=4she 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 day of
, 2002.
My Commission expires.
�
Notary Public
0
IXA_
LEFnKON N DD 061234nuary26,2006vice & BOndM InC
02- 917
IL
AT&T COMCAST CORPORATION
LM
Name: ARTHUR R. BLOCK
Senior Vice P.residw
Title: _
STATE OF
ss:
COUNTY OF mak•\�ti.� )
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 3 day of
2002.
My Commission expires:
NOTARIAL SEAL
GRACE M. SAPINOSA, Notary Public
City of Philadelphia, Phila. County
IVY Commission Expires July 20, 2006
;Notary Public
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02- 917
Resolution R-02-917
Exhibit B
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EXHIBIT B
SETTLEMENT AGREEMENT
This settlement agreement ("Settlement Agreement") is entered into by and between the
City of Miami, a Florida municipal corporation ("City") and Miami Tele-Communications, Inc.,
a corporation ("Licensee") this 02A day of August, 2002.
RECITALS
WHEREAS, Licensee is a licensed cable operator in the City pursuant to Resolution 00-
489, effective June 8, 2000 ("License Agreement" or "License"); and
WHEREAS, Licensee is providing cable services pursuant to the License; and
WHEREAS, disputes have arisen between the City and Licensee regarding the
performance of Licensee under the terms and conditions of the City's Cable Systems Ordinance,
Ordinance No. 11936 ("Ordinance") and the License Agreement ("Disputes"); and
WHEREAS, Licensee has asserted that it is in compliance with the License and
Ordinance; and
WHEREAS, AT&T Corp., ("AT&T") is seeking consent for a Change of Control of the
Licensee from AT&T Corp. to AT&T Comcast Corporation ("AT&T Comcast") by the City
Commission; and
WHEREAS, the parties have determined to amicably resolve the Disputes and other
present issues between them.
AGREEMENT
NOW, THEREFORE, the parties intending to be contractually bound agree as follows:
A. PAST COMPLIANCE.
1. System Upuade. Licensee acknowledges that it was obligated pursuant to
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Section 14 of the License Agreement to complete and activate, at a minimum, ninety percent
(90%) of the cable system by September 1, 2001. Licensee states that it has completed and
activated an upgrade of the cable system, as of June 1, 2002, to ninety percent (90%) of the total
cable system. The City and the Licensee, through a mutually agreed upon independent engineer,
have received an engineering report which states that as of June 1, 2002, Licensee has completed
seventy-six point forty-two percent (76.42%) of the total cable system, and as of July 30, 2002,
eighty-four point zero eight percent (84.08%) of the total cable system. Licensee has submitted
material to support its claim that it has been unable, through no fault of its own, to gain access to
certain multiple dwelling units, thus raising the percentage of the completed cable system to
ninety percent (90%). The City has reviewed the documentation and agrees that the cable system
was ninety percent (90%) complete on or before June 1, 2002.
Licensee, without admitting liability for any claim, in full satisfaction of all
noncompliance issues and violations arising under the terms of the Ordinance and License
Agreement relating to the upgrade and activation of the cable system in the City, through the
date hereof, shall pay to the City the sum of Five Hundred Forty -Nine Thousand Dollars
($549,000.00) within thirty (30) days of approval of this Settlement Agreement by the City.
2. Customer Service Violations. Licensee, in full satisfaction of all noncompliance
issues and violations arising under the terms of the Ordinance and License Agreement relating to
any customer service violations, as those are referenced in the License Agreement and
Ordinance, through the date hereof, shall pay to the City the sum of Seventy Two Thousand
Dollars ($72,000.00) within thirty (30) days of approval of this Settlement Agreement by the
City.
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3. Policies and Practices.
(a) Dispute Resolution.
(i) Licensee hereby acknowledges and recognizes that the Ordinance
and License Agreement sets forth the requirement that the Licensee shall develop written
procedures for the investigation and resolution of all subscribers or City resident complaints,
including, but not limited to those regarding quality of service and equipment malfunction, and
that such procedures shall be submitted for the review and approval by the City Manager.
Notwithstanding the above, on or about December 21, 2001, Licensee distributed to its
subscribers the AT&T Broadband Policies and Practices (the "Policies"), which sets forth, in
part, policies, complaint procedures and dispute resolutions for its cable subscribers. Licensee
agrees that within thirty (30) days following adoption of the Resolution, it will notify, in writing,
all subscribers located within the City that Section 10 of the Policies has been withdrawn (as so
amended by such withdrawal of Section 10, the "Amended Policies")
(ii) The City has reviewed the Amended Policies and, has found them
acceptable in accordance with the requirements of the Ordinance.
(iii) Licensee hereby acknowledges that this Acceptance does not in
any manner diminish or impair the rights of the City with respect to future violations and
remedies available to the City under the License or Ordinance and the City, in accordance with
the terms set forth in the Settlement Agreement, hereby waives any liquidated damages with
respect to any alleged violation(s) arising out of the Policies.
(iv) Licensee hereby agrees that any future revisions of any and all
customer service standards or policies or any such new standards and policies shall be submitted
to the City before distribution to subscribers as required by the applicable provisions of the
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License.
(v) Licensee agrees that in the event of a conflict between the
Amended Policies and applicable law, the License Agreement, the Ordinance and applicable law
shall control over the Amended Policies. Licensee and the City agree that their relationship is
governed solely by the License and the Ordinance and that the Amended Policies do not apply to
the City.
(b) Risk Assessment and Deposit Policy.
(i) Licensee hereby acknowledges and recognizes that the Ordinance
sets forth the requirement that the Licensee shall develop written procedures for the investigation
and resolution of all subscribers or City resident complaints, including, but not limited to those
regarding quality of service and equipment malfunction, and that such procedures shall be
submitted for the review and approval by the City Manager. Notwithstanding the above, on or
about May 21, 2002, Licensee distributed to its subscribers AT&T Broadband's Risk Assessment
and Deposit Policy (the "Risk Assessment Policy"), which sets forth, in part, AT&T
Broadband's intent to check potential subscribers credit history and implement policies on
subscriber security deposits. Licensee agrees that within thirty (30) days following adoption of
the Resolution, it will notify, in writing, all subscribers located within the City that the Risk
Assessment Policy has been amended to include non-discriminatory language, as set forth on
Attachment 1 hereto (the "Amended Risk Assessment Policy").
(ii) The City has reviewed the Amended Risk Assessment Policy and
has found it acceptable in accordance with the requirements of the Ordinance.
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(iii) Licensee hereby acknowledges that this Acceptance does not in
any manner diminish or impair the rights of the City with respect to future violations and
remedies available to the City under the License Agreement or Ordinance and the City, in
accordance with the terms set forth in the Settlement Agreement, hereby waives any liquidated
damages with respect to the alleged violation arising out of the Risk Assessment Policy.
(iv) Licensee hereby agrees that any future revisions of any customer
service standards and policies shall be submitted to the City before distribution to subscribers as
required by the applicable provisions of the Ordinance.
(v) Licensee agrees that in the event of a conflict between the
Amended Risk Assessment Policy and applicable law, the License Agreement, the Ordinance
and applicable law shall control over the Amended Risk Assessment Policy. Licensee and the
City agree that their relationship is governed solely by the License and the Ordinance and that
the Amended Risk Assessment Policy does not apply to the City.
4. Financial Audit. Licensee agrees that the City may perform a financial audit of
the Licensee for the period January 1, 1997 through September 30, 2001 pursuant to Section 11-
16 of the Ordinance. If, as a result of the audit, and in accordance with Section 11-16 of the
Ordinance, the City determines that the Licensee has underpaid the quarterly license fees owed
during the time frame referenced above in an amount equal to or exceed two percent (2%) of the
license fees actually paid based on the components of gross revenues as specifically defined in
the Ordinance, the cost of the audit shall be paid by the Licensee to the City within thirty (30)
days of receipt of demand for payment unless Licensee can show the audit is materially
incorrect. Licensee agrees that it shall remain fully liable to the City for any underpayment in
License fees due to the City during this period. Nothing in this Settlement Agreement shall act
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as a waiver of any right or enforcement remedy the City holds for the underpayment of License
fees. If any underpayment of License fees is discovered, Licensee shall pay the underpayment of
License fees, including any penalties, fines and/or late charges that may be assessable under the
License Agreement or Ordinance within thirty (30) days of notice of the financial audit by the
City to the Licensee.
B. PUBLIC ISSUES.
1. System Completion. Licensee agrees that it shall complete and activate the cable
system, in its entirety, including but not limited to all single family homes, all multiple dwelling
units and all public buildings required under the Ordinance, other than those locations where
Licensee has been unable, through no fault of its own, to gain access within the City on or before
December 31, 2002. In the event that Licensee does not complete the upgrade and activation of
the total cable system by December 31, 2002, and such failure to complete is due to the fault of
the Licensee, Licensee shall immediately begin incurring fines and penalties in the amount of
One Thousand Dollars ($1,000.00) per day, or any part thereof, for each day the upgrade or
activation is not complete.
2. Amendments to License Agreement and Ordinance.
(a) The City shall cause Section 11-18 of the Ordinance to be modified as set
forth in Attachment 2 attached hereto:
(i) Credits to Customers.
The City and Licensee by execution of this Settlement Agreement acknowledge and
agree that the modified Section 11-18 of the Ordinance referenced above and set forth in
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Attachment 2 attached hereto shall be deemed a modification of Section 31 of the License
Agreement.
(b) The City shall cause Section 11-17(b)(14) of the Ordinance to be modified
as set forth in Attachment 3 attached hereto to reflect that the Licensee shall file an annual Equal
Employment Opportunity Report with the City. The City and Licensee by execution of this
Settlement Agreement acknowledge and agree that the modified Section 11-17(b)(14) of the
Ordinance referenced above and set forth in Attachment 3 attached hereto shall be deemed a
modification of the License Agreement.
3. Bill Payment Centers. The Licensee currently makes available third -party
payment centers in the City and shall endeavor to maintain such third -party payment centers,
including at least one or two third -party payment centers within each City voting district during
the term of the Franchise.
4. Programming Services. Licensee recognizes that the City is made up of citizens
of very diverse ethnic, cultural and language backgrounds. Licensee shall endeavor to offer to
all subscribers a diversity of video programming services, including minority oriented
programming, provided, however, that nothing contained in this Settlement Agreement shall be
interpreted as a requirement for provision of any specific video services.
In conformance with federal law, Licensee shall provide all leased access programming
providers access to Licensee's Basic Tier program but shall not require that all leased access
programming be included in the Basic Tier.
Licensee agrees that it shall, no less than thirty (30) days prior to making any changes to
the Basic Tier service of the cable system, provide notice of such programming changes to the
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City and shall meet with the Mayor and City Manager, at their request, to discuss the proposed
changes prior to implementing any change within such thirty (30) day period.
Licensee has requested to move Telemiami from the Expanded Basic Tier to the Basic
Tier on or before August 27, 2002. The City acknowledges the request by Licensee with respect
to waiving the notice obligation pursuant to Section 11-18 (n) (5) and agrees to waive said notice
obligation.
5. Annual Surveys. Licensee and the City agree that they may conduct a survey of
the customer service performance of the Licensee once a year. Licensee and the City shall
mutually agree to survey questions. Licensee and the City agree the each shall bear equal
portions of the total costs involved in the preparation, conducting and reporting of such survey to
the subscribers. The City reserves the right to conduct its own, independent survey of the
subscribers, at any time. In the event the City desires to conduct its own independent survey of
the subscribers, Licensee shall not be responsible for any costs of the independent survey.
6. District Meetings. Licensee and the City agree that they shall conduct, on an
annual basis, at a time and place mutually agreeable to each party, a public meeting for each of
the voting districts located within the City. Licensee shall bear the costs involved in the
preparation and noticing of the public meeting to the subscribers. Licensee shall make ten (10)
spots of thirty-second duration available per district meeting for public service announcements
produced by the City to inform the public of each such public meeting.
7. Promotion of Cable Competition. Licensee, and its Affiliates acknowledge that
pursuant to Section 11-3(a) of the Ordinance, it is the City's intent to promote competitive cable
rates and services, and that pursuant to Section 11-5(b) of the Ordinance and Section 5 of the
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License Agreement, that the Licensee is nonexclusive. Accordingly, to further potential cable
competition, the Licensee and its Affiliates agree to comply with all applicable federal and state
laws concerning unfair competition, restraint of trade and deceptive trade practices with respect
to the provision of cable services.
8. Attorney General Investiiation. AT&T Broadband and certain of its
affiliates and subsidiaries are the subject of a current investigation and administrative inquiry by
the Attorney General of the State of Florida that may result in legal action against such entities.
Licensee agrees that it shall comply with all federal and state law, including any decision by the
Attorney General of the State of Florida with respect to consumer protection and arising out of
such investigation and inquiry. Licensee further agrees that by consenting to the Change of
Control, the City shall not have waived any rights it may have to receive any benefits, for itself
or for Licensee's subscribers in the City, that are determined to be given by resolution of the
Attorney General's investigation, whether through judicial decision, administrative action,
settlement or voluntary agreement. To the extent that the Resolution extends to other subscribers
or municipalities in Florida, benefits as prescribed by the Attorney General, resulting out of its
current investigation, for such other subscribers or municipalities shall automatically be made
available to the City or Licensee's subscribers in the City to the extent that the City or such
subscribers have been subject to the same violations.
9. Rate Deferral. City acknowledges that Licensee voluntarily deferred a rate
increase of Six Dollars ($6.00) per month associated with the rebuild and increased channel
offerings for two (2) months, representing a savings of approximately Three Hundred Twenty
Two Thousand Nine Hundred Fifteen Dollars ($322,915.00) to subscribers.
C. CITY ISSUES.
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1. Build -out Deferral. Licensee and the City agree that the build -out of the cable
system to those areas more commonly known as Virginia Key and Watson Island shall be
deferred to January 1, 2006. In consideration of the City granting this deferral to Licensee,
Licensee agrees to pay the sum of Three Hundred Ninety Thousand Dollars ($390,000.00) to the
City within thirty (30) days of the approval of this Settlement Agreement by the City. In the
event that Licensee has not completed the build -out and activation of the cable system to the
Virginia Key and Watson Island areas on or before January 1, 2006, through no fault of its own,
Licensee shall immediately begin incurring fines and penalties in the amount of One Thousand
Dollars ($1,000.00) per day or any portion thereof, as specified in Section 11-13 (a) (4) of the
Ordinance, for each day the build -out or activation of the cable system remains incomplete. In
the alternative, Licensee may request a further extension of the requirement if the build -out of
such areas is financially infeasible on terms and conditions to be negotiated between the parties.
However, the City is under no obligation to grant any further extension.
2. High Saeed Internet Service. Licensee acknowledges that it has voluntarily
launched cable modem service to its subscribers in the City as of the date of this Settlement
Agreement.
3. Government Channel(s). Licensee agrees that the City shall from time to time
designate additional access sites from which the City can upstream broadcasting of certain
governmental meetings and events. Licensee agrees that it shall construct, install and maintain
such additional access sites upon the written request of the City within a mutually agreed upon
time frame. Licensee shall charge the City only its direct costs incurred for the construction of
these additional sites.
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(0,
(a) Channel Assignment. Subject to applicable law, Licensee agrees that it
shall use its reasonable efforts to not cause any re -assignment of the current City government
access channel on channel 9 on the cable system. If such reassignment occurs, the Licensee
shall carry the City government access channel on that tier of service required under federal law.
In addition, Licensee shall provide: (i) reimbursement to the City for its actual costs in marketing
the new channel assignment up to a maximum of Five Thousand Dollars ($5,000.00); (ii) sixty
(60) days prior notice to the City of the channel reassignment; (iii) fifty (50) spots of thirty-
second duration for public service announcements, to be aired on the Cable System, produced by
the City to inform the public of such channel reassignment during the thirty (30) day period prior
to such reassignment and (iv) notice to customers via a bill stuffer of the channel reassignment.
(b) Additional PEG Channel. The City shall cause Section 11-15 of the
Ordinance to be modified as set forth in Attachment 4 attached hereto to waive the prerequisite
requirements for a second access channel. Licensee agrees that upon ninety (90) days written
notice, Licensee shall begin broadcasting of the second PEG channel pursuant to the terms and
conditions set forth in Section 11-15 of the Ordinance, as amended. The City and Licensee by
execution of this Settlement Agreement acknowledge that the modified Section 11-15 of the
Ordinance referenced above and set forth in Attachment 4 attached hereto shall be deemed a
modification of Section 19 of the License Agreement.
(c) Programming Guide. Licensee agrees that it shall assist the City in the
distribution of a programming guide for the public, educational and government channels of the
cable system. Licensee may, bi-annually and upon request of the City, include the program
guide in the monthly billing statement mailed to subscribers in accordance with Section 11-18 of
the Ordinance. Additionally, Licensee shall assist the City to include government channel
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02- 917
programming on the video programming guide of the cable system.
4. I -Net.
(a) Licensee shall work with the City to develop a plan for the construction,
operation and maintenance of an Institutional Network ("I -Net") for the City, or for I -Net
services that would be available by lease to the City ("I -Net Services"), that would interconnect
such City public buildings, schools and facilities designated by the City, provided however that
all said buildings and schools are public and not commercial or private. The I -Net or I -Net
Services shall be paid for by the City through its own funds and shall not be an obligation of the
Licensee or its subscribers.
(b) The City shall prepare and provide to the Licensee specifications for such
I -Net, which shall include, but not be limited to, designated sites and the technical capacities and
services required at each such site. Licensee shall work with the City to determine the most cost-
efficient technical alternatives to the provision of such I -Net or I -Net Services.
(c) Licensee shall provide, within 120 days of receiving such specifications,
an estimate of the costs to provide such I -Net or I -Net Services ("Final Estimate"). The Final
Estimate shall be based upon the actual costs for material and labor and any costs directly
associated with supervisory personnel, if any, as well as any cost of funds incurred, based upon
the average effective interest rate on debt outstanding as reported in AT&T Comcast's most
recent Form 10-Q filed with the Securities and Exchange Commission.
(d) The City may, within 60 days after receipt of the Final Estimate, notify the
Licensee that it would like a revised estimate for the I -Net or I -Net Services to accommodate
different sites, capacities or services.
Page 12 of 27
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(e) The Licensee shall prepare and send to the City a revised estimate
("Revised Estimate") within 120 days of receiving a request from the City pursuant to
subparagraph (d). The Licensee shall only be obligated to prepare one Revised Estimate.
(f) Upon receipt of the Final Estimate or the Revised Estimate, the City shall
have 120 days to accept either the Final Estimate or the Revised Estimate, as applicable. If the
City elects to accept the Final Estimate or the Revised Estimate, Licensee shall make available
the I -Net or I -Net services for the amount set forth in the Final Estimate or the Revised Estimate.
The City and the Licensee shall then enter into an agreement containing terms and conditions
related to the construction, operation and maintenance of the I -Net or the provision of I -Net
Services, including payment by the City to Licensee (the "I -Net Agreement"). If the City
chooses not to accept either of the estimates, Licensee is relieved from any further obligation
with respect to the I -Net or I -Net Services.
(g) Licensee and the City shall use their best efforts to negotiate the I -Net
Agreement and to take such steps as are required of each of them in a timely manner to make
such I -Net or I -Net Services available in the City if the City elects to secure such I -Net or I -Net
Services from Licensee in accordance with this Section 4 and the I -Net Agreement.
5. Financial Guaranty. The City recognizes that Licensee currently has in posted
for the City's benefit and protection:
(a) A Two Million Dollar ($2,000,000.00) letter of credit to ensure the faithful
performance of all provisions of the License Agreement; and
(b) A Five Hundred Thousand Dollar ($500,000.00) Construction Bond for
the construction, upgrade, rebuild or other significant work in the Streets or Rights -of -Way; and
(c) A Three Hundred Thousand Dollar ($300,000.00) Construction Bond also
Page 13 of 27
02- 917
A q
for the construction, upgrade, rebuild or other significant work in the Streets or Rights -of -Way.
Licensee and the City agree that the construction bonds referenced in this paragraph shall
be increased to a combined sum of One Million Dollars ($1,000,000.00) and shall remain in
place, for the benefit and protection of the City until such time as the City has verified that
Licensee has (1) completed and activated the upgrade of cable system, pursuant to Section A (1)
of this Settlement Agreement; and (2) the completion and activation of the Cable System in the
areas referenced in Section C (1) of this Settlement Agreement Once such completion and
activation has been completed, as specified above, the City agrees to sign all documents required
to release the construction bonds required herein and in the Ordinance and License Agreement.
Licensee recognizes and acknowledges that the financial qualifications of AT&T
Comcast are an important and relevant consideration of the City for the evaluation of the
proposed Change of Control, and in particular, the assurance that sufficient financial resources
are available to Licensee to meet the obligations of the Licensee under the terms of the License.
Accordingly, Licensee represents and warrants as follows:
(i) Licensee represents and warrants that the Change of Control will
not have any adverse financial effect on the cable system, such that Licensee's financial
resources necessary to comply with the terms and conditions of the License are adversely
affected.
(ii) Licensee represents and warrants that after the proposed
transaction, Licensee's financial resources will be such as shall enable it to maintain and operate
the cable system in compliance with all requirements of the License.
(iii) Licensee shall provide a Performance Guarantee Agreement in the
Page 14 of 27
02- 917
form attached hereto from AT&T Broadband Corp.
(iv) Nothing shall prohibit Licensee, however, from increasing rates in
the ordinary course of business in compliance with federal laws, so long as the rate increases are
not caused by the costs associated with the Change of Control, subject to Section D (2) of this
Settlement Agreement.
(d) Off -Balance Sheet Borrowing. Licensee represents and warrants that
all borrowings by Licensee shall be recorded and reported in accordance with Generally
Accepted Accounting Principles (GAAP) and conform to the requirements of the Securities and
Exchange Commission, as those principles and requirements may be amended from time to time.
(e) Licensee Debt Obligations. Licensee represents and warrants that
Licensee will not be an obligor for any debt that may be incurred by AT&T Comcast to meet
cash funding requirements of the Merger Agreement.
6. Financial Grant. Licensee will provide a grant/donation, in the amount of
Seventy Thousand Dollars ($70,000.00) to the Endowment for Youth Program for various after
school programs within thirty (30) days after approval of this Settlement Agreement by the City.
7. Technical Assistance. Licensee shall designate a management level employee
and a senior level technical employee to be responsible for working with the City to address
problems that may arise under the License and shall serve as Licensee's representative to the
City and subscribers ("Technical Representative"). The primary purpose of this service is to
provide the City with direct access to supervisory level personnel with the authority to promptly
act on customer service and technical complaints referred by the City to Licensee. This service
shall, at a minimum, include the following:
(a) The personnel providing the service shall have sufficient authority and
Page 15 of 27
02- 90
access to Licensee's facilities and personnel in order to investigate and take appropriate remedial
action without delay; and
(b) The City shall be provided the business telephone numbers during normal
business hours that will be answered by a live person and will provide immediate access to the
Technical Representative. In addition to the business telephone numbers, Licensee shall provide
after hours contact telephone numbers.
(c) Licensee shall provide the City with written notice of changes in the
Technical Representative at least ten (10) days prior to any change of the Technical
Representative.
8. Ouarterly Customer Service Meetings. City and Licensee have agreed to an
Enhanced Customer Service Plan to commence September 1, 2002 for a one (1) year test period.
The Plan may be extended by mutual agreement of the City and the Licensee. During the term
of the Plan, the City and Licensee shall meet at least quarterly to discuss the status of customer
service and any plans by Licensee to improve or affect future customer service relating to the
Cable System.
9. Additional Sites for Provision of Cable Service. Licensee reaffirms its
commitment to comply with Section 11-13(a)(4) of the Ordinance and Section 16 (B) of the
License Agreement.
D. MERGER ISSUES.
1. City Consent to Change of Control. The City shall consent to the Change of
Control of the Licensee from AT&T to AT&T Comcast subject to execution and delivering to
Page 16 of 27
02- 917
the City within twenty (20) calendar days from the date hereof, the following documents:
Licensee shall execute and deliver the Settlement Agreement; Licensee and AT&T
Comcast shall execute and deliver an Unconditional Acceptance of Terms and Conditions and
AT&T Broadband Corp. shall execute and deliver a Performance Guaranty Agreement, with
additional terms and conditions also contained in the Resolution approving this Settlement
Agreement. The City Commission shall consider approval of this Settlement Agreement
concurrently with its consideration of the FCC Form 394 Application for the Change of Control
of Licensee at its August 22, 2002 City Commission meeting. This Settlement Agreement is not
binding on any party unless and until the City Commission approves the Change of Control
submitted by AT&T Corp. and AT&T Comcast Corporation. In the event any of the documents
referenced in this paragraph are not executed or delivered to the City within twenty (20) calendar
days of the date hereof, the consent granted by the City Commission shall be null and void and
the FCC 394 Application submitted by AT&T shall be deemed denied, without any further
action by the City or the City Commission.
2. Pass Through/Rate Increases. Licensee agrees that it shall not pass-through to
subscribers, as may be permitted pursuant to 47 U.S.C. 542, any of the payments required to be
made in this Settlement Agreement, nor any of the costs incurred under Section E (2) of the
Settlement Agreement related to the Change of Control. Further, Licensee shall not consider,
nor include any of the payments required to be made in this Settlement Agreement in any rate
increase to the subscribers in the City for any services it provides.
E. GENERAL ISSUES.
1. General Release. Other than Section A (4) of this Settlement Agreement,
Licensee and the City agree that the consideration set forth in this Settlement Agreement is good
Page 17 of 27
02- 917
and adequate consideration, the receipt of which is hereby acknowledged. Further, Licensee and
the City agree that the consideration made in this Settlement Agreement is in full and final
settlement of all consumer service issues, all compliance claims of the City under the Ordinance
or License Agreement and any and all legal fees and costs incurred as a result of the Settlement
Agreement. City agrees that as of the date of this Settlement Agreement, Licensee is in full
compliance with its obligations under the Ordinance and License Agreement. This general
release shall become effective upon acceptance and execution of this Settlement Agreement and
all related documents thereto.
2. Cost Recovery. Licensee agrees that within thirty (30) days of approval of this
Settlement Agreement by the City and the City's consent to the Change of Control of the
Licensee, Licensee shall pay to the City reasonable expenses incurred by the City in considering
and processing the FCC Form 394 Application, including but not limited to consulting and legal
costs, the total of which shall not exceed the amount of Twenty Thousand Dollars ($20,000.00)
plus an additional Five Thousand Dollars ($5,000.00) for engineering fees.
3. Entire Understanding. This Agreement contains the entire understanding
between the parties hereto with respect to the Disputes and Change of Control, and supersedes all
prior and contemporaneous agreements and understandings, inducements or conditions, express
or implied, oral or written, except as herein contained. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with any of the terms
hereof. This Agreement may not be modified or amended other than by an agreement in writing
and approval by the City Commission and Licensee.
4. Authority. The Licensee and the City each warrant and represent that:
Page 18 of 27
02- 917
7
(a) all necessary approvals and authority to enter into this Settlement
Agreement and to bind it thereto have been obtained; and
(b) the person executing this Settlement Agreement on its behalf has express
authority to do so and, in so doing, to bind it hereto; and
(c) the execution and delivery of this Settlement Agreement and the
performance of its obligations hereunder do not contravene or conflict with any judgment, order,
decree, contract, law, regulation or other obligation binding upon it or its assets; and
(d) it has the power and authority to perform all of its obligations hereunder.
5. Notice. All notices required to be given hereunder shall be in writing and sent by
registered or certified mail, return receipt requested, to the appropriate party at its address set
forth below, or at such other address as may be given by notice hereunder. Where notice is sent
by mail to the City, it shall be deemed given only upon receipt by the City Manager.
If to Licensee: Ms. Ellen Filipiak
V. P. General Manager
2501 NW 145th Avenue, Suite 200
Miramar, FL 33027
With copies to: Legal Department
AT&T Broadband
188 Inverness Drive West
Englewood, CO 80112
If to the City: City of Miami
Attn: City Manager
3500 Pan American Drive
Miami, FL 33133
with copies to: Leibowitz & Associates, P.A.
Matthew L. Leibowitz, Esq.
1 S.E. 3rd Avenue, Suite 1450
Miami, FL 33312
6. Governing Law. The parties agree that the Settlement Agreement is governed by
Page 19 of 27
02- 917
01
the laws of the State of Florida, with jurisdiction in the State Courts of Miami -Dade County of
the State of Florida.
7. Counterparts. This Settlement Agreement may be signed in several counterparts
which, taken together, shall constitute one and the same instrument.
8. Invalidity of Sections. Should any provision of this Settlement Agreement be
held invalid by a court of competent jurisdiction or rendered a nullity by Federal or State
legislative or regulatory action, the remaining provisions of this Settlement Agreement shall
remain in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 20 of 27
02- 917
IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the
date first above written.
STATE OF FLORIDA
ss:
COUNTY OF BROWARD
MIAMI TELE -COMMUNICATIONS, INC.
By: 11 L
Its: &I -h ( OY plll��SIetw
Date: Pia
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by A-11en G�L/Pi��c the -�y &A&6 )c,uT of
Miami Tele-Communications, Inc., a corporation, freely and voluntarily
under authority duly vested in ftWher by said corporation and that the seal affixed thereto is the
true corporate seal of said corporation. he is personally known to me or who has produced
his/her driver's license as identification.
WITNESS my hand and seal in the county and state last aforesaid this -;�-7 day of
August, 2002.
gyp , ANN L. LEFnK
MY COMMISSION # DD 061234
orIF00 EXPIRES: January 26,2006f
1.80@3NOTARlY FL Notary Service & 80nd% Inc.
ota�rJy Public
SEAL Printed Name of Notary Public
2
My ommiss>on Expires
Page 21 of 27
02- 91 '7
31,
j
IN WITNESS WHEREOF, the parties having caused this Agreement to be executed by
their respective and authorized officers.
CITY OF MIAMI
ATTEST:
Page 22 of 27
02- 917
ATTACHMENT 1
AT&T Broadband's Risk Assessment and Deposit Policy
Effective May 28, 2002
Starting May 28, 2002, AT&T Broadband will implement a risk assessment and deposit
program.
AT&T Broadband will conduct a risk assessment on all new or reconnecting customers.
Customers requesting service will be asked for their name, address and Social Security Number.
(If a customer is unwilling to provide his or her Social Security Number, we will attempt to
match that person using only his or her name and address. AT&T Broadband's inability to
locate applicant information resulting from the customer's unwillingness to provide a Social
Security number may adversely affect the risk assessment). AT&T Broadband may utilize
information available from credit reporting agencies to make the risk assessment.
Based on our review, the customer may be required to provide a deposit to secure payment of his
or her account. The deposit levels have been set initially at $50.00 and $100.00. All customers
who are required to pay a deposit will be sent a letter, which will include information about our
assessment and how to obtain additional information from any consumer reporting agencies
utilized, as well as the Terms on which AT&T Broadband will hold, apply and refund deposits.
The letter will be mailed within fifteen (15) business days following the deposit assessment.
Detailed information about the Terms will be available to customers during the sales call upon
request.
AT&T Broadband shall not discriminate in the application of its Risk Assessment and
Deposit Policy on the basis of race, color, sex, creed, religion, nationality, sexual
orientation, or marital status. Any credit checks conducted by either AT&T Broadband or
its third party credit bureau will be done in conformance with the requirements of all
applicable state or federal laws.
TERMS ON WHICH SECURITY DEPOSITS WILL BE HELD
AND APPLIED BY AT&T BROADBAND
If you have provided AT&T Broadband with a security deposit in connection with your
subscription to cable television or cable internet services, AT&T Broadband will hold your
deposit in an unsegregated interest-bearing account as a general liability of the company holding
the local franchise to serve the area in which you reside. During each calendar year, the account
will ac rue interest at a rate determined during the last week of the immediately preceding
October equal to the effective rate (the effective annual yield) for new issues of one year
Treasury bills (or if there are no such new issues, a representative average of the bid and asked
yields for Treasury obligations having approximately one year remaining until maturity),
Page 23 of 27
02- 917
rounded to the nearest whole percentage. Interest on the deposit will be calculated monthly and
credited to your service account. The interest rate for 2002 is 2%.
The deposit will be held and interest will accrue until either (i) the service is disconnected or (ii)
the balance charged to the service account has been paid in full, within forty (40) days of the due
date, for each six (6) consecutive months. Upon either event, interest will be calculated and
added to the amount on deposit. For active customers, the deposit and accrued interest will then
be applied to the account in the seventh month. Any remaining credit will be applied to the
account in the either month, unless customer requests a refund of the remaining deposit. For
disconnecting customers, the deposit and accrued interest will be applied to the balance, if any,
owing on the account after any equipment has been returned and any amount remaining on the
deposit will be refunded. A check in the amount of the refund will be mailed within 4-6 weeks
of the date of (i) or (ii) above.
The interest rate on deposits that are held on January 1 of any calendar year will be adjusted to
the new rate determined in accordance with the first paragraph above.
If you have any questions regarding the status of your account or deposit, please call the
Customer Service number shown on your monthly statement.
[Strikethrough represents deleted language/Bold represents additional language]
Page 24 of 27
02- 917
ATTACHMENT 2
Modifications of Section 11-18 of the
City of Miami Cable Systems Ordinance
As Referenced in the Settlement Agreement
Attached to Resolution o2- 9-*sof the City
(o) Upon a Subscriber's request, a Licensee shall provide a credit to the account of
the Subscriber, prorated on a daily basis, with a minimum of one (1) day, for any period of two
(2) hours or more within a twenty-four (24) hour period during which a Subscriber experienced
an interruption of service or substantial impairment of service, whether due to a System
Malfunction or other cause within the Licensee's control. No Fefiinds credits shall be due for
service interruptions directly related to a rebuild, upgrade or routine maintenance of the Cable
System which is planned, noticed properly to the City and Subscribers, and occurs during a time
other than between 6:00 p.m. and 11:00 p.m. and lasts for four (4) hours or less. Licensee shall
provide a separate notice of the credit policy, via a bill stuffer, to subscribers on an annual
basis. Licensee's failure to comply with this subsection shall result in a fine in the amount of
Three Hundred Dollars ($300) per violation, per day or part thereof that the violation continues.
(g) Subscribers who have experienced two (2) one (1) missed installation or service
appointments due to the fault of Licensee shall receive installation free of charge. If the
installation was to have been provided free of charge or if the appointment was for service or
repair, the Subscriber shall receive a credit on the next bill of not less than Twenty Dollars ($20).
Licensee's failure to comply with this subsection shall result in a fine in the amount of One
Three Hundred Dollars ($4300) per violation, per day or part thereof that the violation continues.
[Strikethrough represents deleted language/Bold represents additional language]
Page 25 of 27
02- 917
ATTACHMENT 3
Modification of Section 11-17(b)(14) of the
City of Miami Cable Systems Ordinance
As Referenced in the Settlement Agreement
Attached to Resolution vz-*7 of the City
(14) west, -a An annual report on the number of
personnel employed by the Licensee by area of
responsibility, including any ethnic reporting pursuant to
Equal Employment Opportunity Commission requirements.
[Strikethrough represents deleted language/Bold represents additional language]
Page 26 of 27
02- 917
ATTACHMENT 4
Modification of Section 11-15 of the
City of Miami Cable Systems Ordinance
As Referenced in the Settlement Agreement
Attached to Resolution oz-*7of the City
(c) A Licensee shall provide a minimum of one (1) Access Channel, and facilities
dedicated to the exclusive use of the City and such other capital support for public, educational
and/or governmental use as required in a License Agreement and allocated at the sole discretion
of the City. The Licensee shall provide one upstream Channel for each Access Channel then
used by the City to the headend, as technically necessary for the operation of Access Channels
referred to herein or as otherwise required by a License Agreement. The City may add one (1)
additional PEG Channel upon ninety (90) days written notice to Licensee. Licensee shall
begin broadcasting of the second PEG Channel pursuant to the terms and conditions set
forth in Section 11-15 of the ordinance, as amended. The City may increase the number of
PEG Channels to a number not to exceed five (5), so long as a threshold use requirement is met
for the second PEG Channel each Channel the City then utilizes. In order to request an further
additional PEG Access Channels, the second existing PEG Access Channell must be
programmed at least eight (8) hours a day with non -repetitive, locally produced programming,
Monday through Friday, for a minimum of six (6) consecutive weeks. For purposes of
calculating the eight (8) hour programming requirement, the live cablecast of all Commission
and Board meetings, in their entirety, shall be included for no more than one Channel.
Character -generated programming shall not be included for purposes of calculating the
programming requirement. Once the threshold is met and the second PEG Channel-addi ieml
^ eeess Channel given, the second initial PEG Channel must maintain the
threshold requirement. After attaining the threshold requirement, if the second initial PEG
Channel ^ eeess Channel fails to meet the threshold for four (4) consecutive months, the
additional Access Channel may be reclaimed by Licensee upon sixty (60) calendar days written
notice. Under no circumstances shall the City lose the right to its first and second PEG
Channels initial Aeeess Channel. However, at all times after a ween third PEG Channel
^ eeess Channel shall maintain the threshold requirement a minimum of fifty percent (50%) of
the time, to be measured every four (4) months based on usage for the preceding twelve (12)
months. In addition, a Licensee shall cablecast to all Subscribers in the City of Miami all
Miami -Dade County public, educational, and/or government Channels provided however that the
total number of Access Channels shall not exceed the number set forth in a License Agreement.
[Strikethrough represents deleted language/Bold represents additional language]
Page 27 of 27
02— 917
m
Resolution R-02-917
Exhibit C
02- 917
0 EXHIBIT C
PERFORMANCE GUARANTY AGREEMENT
CITY OF MIAMI, a municipal corporation of the State of Florida, ("City"), and AT&T
BROADBAND CORP., a Delaware corporation ("Guarantor"), on behalf of itself and Licensee.
WHEREAS, Miami Tele-Communications, Inc., d/b/a AT&T Broadband is the Licensee
under a License Agreement granted pursuant to Resolution No. 00-489 and the documents
thereunder (collectively the "License"); and
WHEREAS, at its meeting of August 22, 2002, the City Commission approved the
change in ultimate control of the Licensee in adopting Resolution No. R-02-917 ("Change
in Control"); and
WHEREAS, the Consent and Unconditional Acceptance of Change in Control of
Licensee approved by Resolution No. R-02-917 require Licensee to furnish a Guaranty,
with an acceptable guarantor securingerformance of Licensee's obligations under the Ci of
P g City
Miami, Cable Systems Ordinance No. 11936, including any lawful amendments to Ordinance
No. 11936, ("Ordinance"), the Settlement Agreement attached to the Resolution consenting to
the Change of Control as Exhibit B, between the City and Licensee, as settlement of the disputes
contained therein ("Settlement Agreement"), the License Agreement approved by Resolution 00-
489 and any and all agreements related thereto; and
WHEREAS, Guarantor has agreed to deliver this Guaranty in conjunction with the
City's consent to the Change in Control.
NOW, THEREFORE, in consideration of the above recitals, the covenants, and
agreements contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:
0 1. The Guarantor, on behalf of itself and Licensee, (a) guarantees unconditionally to
02- 917
A
Resolution approving the Change in Control, the Unconditional Acceptance, the Ordinance and
any and all related agreements and resolutions, except to the extent that any term, promise,
covenant, condition, provision or obligation is unenforceable under applicable law, and (b)
agrees to cause Licensee to comply with all obligations of the "Grantee" (as defined in the
documents referenced herein) to be performed as provided in the License Agreement and
Ordinance, except to the extent that any term, promise, covenant, condition, provision or
obligation is unenforceable under applicable law.
2. The guarantees set forth in paragraph 1 above shall be effective
contemporaneously with the Change in Control of the Licensee and shall remain in effect until
the first to occur of, (a) the termination of the License unless the termination occurred as a result
of a breach by the Licensee, in which case this Guaranty would not terminate with respect to
breaches of the Licensee occurring prior to the date of termination; or (b) the termination,
substitution, or cancellation of this Guaranty upon the City's prior written approval of a
substitute guarantor, which approval shall not be unreasonably withheld.
3. Except as set forth in paragraph 2 above, no termination, amendment, waiver, or
modification of this Guaranty or any of its terms or provisions shall be effective unless it is set
forth in a written instrument signed by the Guarantor and the City.
4. Guarantor covenants and agrees that Guarantor may be joined in any action by the
Licensee or the City and that recovery may be had against Guarantor in such action without the
City first bringing an action in court against Licensee. Guarantor also agrees that, in any
jurisdiction, it will be conclusively bound by the judgment in any such action by City against
2
02- 917
the City
the due and punctual
performance by
Licensee
of each
and every term, promise,
covenant,
condition, provision
and obligation
contained
in the
License Agreement, the
Resolution approving the Change in Control, the Unconditional Acceptance, the Ordinance and
any and all related agreements and resolutions, except to the extent that any term, promise,
covenant, condition, provision or obligation is unenforceable under applicable law, and (b)
agrees to cause Licensee to comply with all obligations of the "Grantee" (as defined in the
documents referenced herein) to be performed as provided in the License Agreement and
Ordinance, except to the extent that any term, promise, covenant, condition, provision or
obligation is unenforceable under applicable law.
2. The guarantees set forth in paragraph 1 above shall be effective
contemporaneously with the Change in Control of the Licensee and shall remain in effect until
the first to occur of, (a) the termination of the License unless the termination occurred as a result
of a breach by the Licensee, in which case this Guaranty would not terminate with respect to
breaches of the Licensee occurring prior to the date of termination; or (b) the termination,
substitution, or cancellation of this Guaranty upon the City's prior written approval of a
substitute guarantor, which approval shall not be unreasonably withheld.
3. Except as set forth in paragraph 2 above, no termination, amendment, waiver, or
modification of this Guaranty or any of its terms or provisions shall be effective unless it is set
forth in a written instrument signed by the Guarantor and the City.
4. Guarantor covenants and agrees that Guarantor may be joined in any action by the
Licensee or the City and that recovery may be had against Guarantor in such action without the
City first bringing an action in court against Licensee. Guarantor also agrees that, in any
jurisdiction, it will be conclusively bound by the judgment in any such action by City against
2
02- 917
Licensee (wherever brought) as if Guarantor were a party to such action, even though Guarantor
is not joined as a party in such action. This Guaranty may be enforced against Guarantor
pursuant to this Section 4 only upon a default by Licensee; provided that Guarantor is given prior
notice of such breach or default and an opportunity to cure such breach or default in accordance
with the License as if Guarantor was the Licensee thereunder.
5. This Guaranty shall be deemed to have been made in the State of Florida.
Guarantor consents to the jurisdiction of the courts of the State of Florida or to the United States
District Court, Southern District, for the State of Florida. The rights and liabilities of City and
Guarantor shall be determined in accordance with the laws of the State of Florida.
6. No delay on the part of the City in exercising any power or right hereunder shall
operate as a waiver thereof. The powers and rights granted to City hereunder may only be
waived upon the prior written consent of City, authorized by appropriate municipal action taken
at a regular public meeting of the City Commission of City.
7. If any section, subsection, sentence, clause, phrase, or other portion of this
Guaranty is, for any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent portion, and such declaration shall not affect the
validity of the remaining portions hereof, which other portions shall continue in full force and
effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
02- 9j7
IN WITNESS WHEREOF, the Guarantor on behalf of itself has caused this Guaranty to
be executed under seal by its duly authorized representative of the date first above written.
(Corporate Seal)
K)4 w -JeA'?
STATE OF C )
COUNTY OF AR 4P*HeC—' )
AT&T BROADBAND CORP.
(Guarantor)
By:
Name:
Title:
ss:
BEFORE ME, the undersigned authority, personally appeared
3. 1-r- d- , 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
day of &4 2002.
My Commission Expires:
'SI/1105
in the County and State last aforesaid this 2?TL
S
Notary Public
PETER E. BOYDEN
Notary Public, State of New Jemoy
I.D. No. 2177839
Qualified in Warton County
Certificate Filed in Moms Cody
My commission expires 511 V2OD5
02- 190
IN WITNESS WHEREOF, the parties having caused this Agreement to be executed by
their respective and authorized officers.
CITY OF MIAMI
N/A
N/A
DEPUTY GLE
N/A
02- 917
AT&T BROADBAND - AT&T COMCAST
LICENSE TRANSFER/SETTLEMENT AGREEMENT
August 22, 2002
AT&T Broadband is requesting the City's consent to the "Change of Control" of the Miami Tele-
Communications, Inc., ("Licensee") cable television license from AT&T Broadband to AT&T Comcast
Corporation ("Transferee"). The proposed Transferee is an entity formed by the merger of AT&T Broadband
and Comcast Corporation.
The City has drafted and proposed a settlement to the Licensee encompassing the following terms and
conditions to settle all outstanding violations and non-compliance issues of the Licensee.
A. PAST COMPLIANCE.
1. System Upgrade. Licensee shall pay to the City the sum of $549,000 for its failure to
complete the upgrade of the Cable System.
2. Customer Service Violations. Licensee shall pay to the City the sum of $72,000 as settlement
of all customer service violations.
3. Policies and Practices. Licensee agrees that it will notify, in writing, all subscribers located
within the City that Section 10 of the Dispute Resolution Policies has been withdrawn. Licensee agrees that it
will notify, in writing, all subscribers located within the City that the Risk Assessment and Deposit Policy has
been amended to include non-discriminatory language.
4. Financial Audit. Licensee agrees that the City may perform a financial audit of the Licensee
for the period January 1, 1997 through September 30, 2001.
B. PUBLIC ISSUES.
I . System Completion. Licensee agrees that it shall complete and activate the cable system, in
its entirety on or before December 31, 2002. Failure to complete and activate the cable systems will results in
Licensee incurring fines and penalties in the amount of $1,000 per day, or any part thereof.
2. Amendments to License Agreement and Ordinance. The City shall modify the Customer
Service section of the Ordinance to provide for notification of credits to customers and providing the City
with an equal employment opportunity report.
3. Business Center. Licensee shall use its best efforts to open 2 additional business centers
within the City.
4. Programming Services. Licensee shall endeavor to offer to all subscribers a diversity of
video programming services. Licensee shall provide all leased access programming providers access to
Licensee's Basic Tier. Licensee shall endeavor to provide other available minority oriented programming.
Page 1 of 3
02- 917
5. Annual Surveys. Licensee and the City may conduct a survey of the customer service
performance of the Licensee once per year and a maximum of twice per year. Licensee and the City shall
each bear equal portions of the total costs.
6. District Meetings. Licensee and the City shall conduct, on an annual basis, a public meeting
for each of the voting districts located within the City. Licensee shall provide 10 spots of thirty-second
duration to publicize the meetings.
7. Promotion of Cable Competition. Licensee agrees to comply with all applicable federal and
state laws concerning unfair competition, restraint of trade and deceptive trade practices with respect to the
provision of cable services.
8. Attomgy General Investigation. Licensee agrees that by consenting to the Change of Control,
the City shall not have waived any rights it may have to receive any benefits, for itself or for Licensee's
subscribers in the City.
9. Rate Deferral. City acknowledges that Licensee voluntarily deferred a rate increase of $6 per
month associated with the rebuild and increased channel offerings for 2 months.
1. Build -out Deferral. Licensee and the City agree that the build -out of the cable system to
those areas more commonly known as Virginia Key and Watson Island shall be deferred to January 1, 2006.
In consideration for the deferral, Licensee agrees to pay to the City the sum of $390,000. Failure to complete
the build -out by January 1, 2006, Licensee shall fines and penalties in the amount of $1,000 per day or any
portion thereof.
2. High Speed Internet Service. The City acknowledges that Licensee has begun providing to
the subscribers of the City, its High Speed Internet Service.
3. Government Channel(s). Licensee agrees that the City shall from time to time designate
additional access sites from which the City can upstream broadcasting of certain governmental meetings and
events.
(a) Channel Assignment. Licensee agrees that it shall use its best efforts, subject to
applicable law, not to re -assign the current City broadcasting on channel 9 on the cable system.
(b) Additional PEG Channel. Licensee and the City agree to waive the prerequisite
requirements for a second access channel.
(c) Programming Guide. Licensee agrees that it shall assist the City in the distribution of
a programming guide for the public, educational and government channels of the cable system.
4. I -Net. Licensee shall assist the City in developing a plan for construction, operation and
maintenance of an I -Net that would be available for lease to the City. The I -Net would interconnect all
government and other public buildings, schools, and facilities designated by the City.
Financial Guaranty.
Page 2 of 3
02- 917
(a) Licensee and the City agree that the construction bonds posted with the City shall be
increased to a combined sum of $1,000,000. Licensee represents and warrants that the Change of Control will
not have any adverse financial effect on the cable system, such that Licensee's financial resources necessary
to comply with the terms and conditions of the License are adversely affected. Licensee shall provide a
Performance Guaranty Agreement from AT&T Broadband, Corp.
(b) Off -Balance Sheet Borrowing. Licensee agrees that it nor any of its parent
companies or its Affiliates shall engage in the practice of off-balance sheet borrowing.
(c) Licensee Debt Obligations. Licensee and AT&T represent and warrant that Licensee
will not be an obligor for any debt that may be incurred by AT&T Comcast to meet cash funding
requirements of the Merger Agreement.
6. Financial Grant. Licensee shall make a donation in the amount of $70,000 to the Endowment
for Youth Program for various after school programs.
7. Technical Assistance. Licensee shall designate a management level employee and a senior
level technical employee to be responsible for working with the City to address problems that may arise under
the License.
8. (Quarterly Customer Service Meetings. City and Licensee have agreed to an Enhanced
Customer Service Plan to commence September 1, 2002 for a 1 year test period.
9. Additional Sites for Provision of Cable Service. Licensee agrees to provide cable service, at
no cost to the City, to various additional sites.
D. MERGER ISSUES.
1. City Consent to Change of Control. The City shall consent to the Change of Control of the
Licensee from AT&T to AT&T Comcast, subject to execution and delivery of a Settlement Agreement,
Unconditional Acceptance of Terms and Conditions and a Performance Guaranty Agreement.
2. Pass Through/Rate Increases. Licensee agrees that it shall not pass-through to subscribers,
any of the payments or costs incurred as a result of this Settlement Agreement and costs of the Transfer of
Control.
E. GENERAL ISSUES.
1. General Release. Licensee and the City agree that the consideration set forth in this
Settlement Agreement is good and adequate consideration.
2. Cost Recovery. Licensee shall pay to the City reasonable legal and consulting expenses
incurred by the City in considering and processing the FCC Form 394 Application, the total of which shall not
exceed the amount of $20,000.
Page 3 of 3
02- 917
cviiio
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO: The Honorable Mayor and DATE:
Members of the City Commission
SUBJECT:
FR enez REFERENCES
City Manag
ENCLOSURES:
RECOMMENDATION:
JM L 8 2;102 FILE :
Request for Change of
Control of Cable License
from AT&T Broadband, LLC
to AT&T Comcast Corp.
It is respectfully recommended that the City Commission discuss and consider approval or
denial of the change of control of the cable television license granted to Miami
Telecommunications, Inc., (the "Licensee") a subsidiary of AT&T Broadband LLC, by
Resolution No. 00-489, from AT&T Broadband, LLC to AT&T Comcast Corporation.
BACKGROUND:
is
Pursuant to Ordinance No. 11936 and the License Agreement between the City of Miami and
AT&T Broadband, LLC (Resolution 00-489), adopted by the Miami City Commission on June
8, 2000, which provides that no change of control may occur without prior approval of the City
Commission, on March 8, 2002, the City of Miami, Florida received an FCC 394 and an
Application for City Consent by the City Commission to the proposed change of control of the
Miami Tele-Communications, Inc. cable television license from AT&T Broadband, LLC to
AT&T Comcast Corporation.
•
The City has required that the Licensee fulfill its obligations pursuant to the Ordinance, License
Agreement and any and all applicable agreements/documents and provide information on the
proposed transaction including details on the legal, financial, technical and other qualifications
of the proposed transferee and on the potential impact of the transfer on service. Additionally,
the City has noticed the Licensee of outstanding violations, which Licensee has not cured or
agreed to cure, in a manner approved by the City. The proposed transferee has failed to provide
to the City written acceptance, by affidavit, of a) the terms and conditions of the Ordinance,
License Agreement and related agreements/documents; and b) its agreement to assume and
guarantee the liabilities and performance of Licensee under the terns of the Ordinance, License
Agreement and any and all other related agreementstdocuments.
02- 917
C 400
The Honorable Mayor and Members of the City Commission
Request for Change of Control of Cable License •
from AT&T Broadband, LLC to AT&T Comcast Corp.
Page 2
Under FCC Rules, 47 CFR Section 76.502, the City has 120 days, plus any extensions, from the
date of submission of a completed FCC Form 394, together with all exhibits, and any additional
information required by the License Agreement or applicable state or local law, to act upon an
application to sell, assign, or otherwise transfer controlling ownership of a cable system to avoid
the Application being approved by operation of law. At the present time, the Licensee has
granted an extension of the 120 -day automatic approval period to July 11, 2002.
CAG ll! cb
02- 0 0
•
•
•
A
CITY OF MIAMI
PUBLIC NOTICE OF PROPOSED RESOLUUON
City Hall
3500 Pan American Drive
Miami, Florida 33133
NOTICE IS HEREBY GIVEN that on Tuesday, July 9, 2002, at a meeting of the City
Commission of the City of Miami, Florida, to be held at 9:00 a.m., in the Commission Chambers at the
address indicated above, the City Commission will discuss and may consider approval or denial of the
change of control of the cable television license granted to Miami Telecommunications, Inc., a
subsidiary of AT&T Broadband LLC ("AT&T'), by Resolution No. 00-4.89 from AT&T Broadband
to AT&T -Comcast, Inc. The Commission may consider adoption of one of the following Resolutions on
first reading:
Resolution No:
Applicant: AT&T Broadband, LLC
Request: A RESOLUTION OF THE MIAMI CITY
COMMISSION CONSENTING TO THE
CHANGE OF CONTROL OF THE CABLE
TELEVISION LICENSE GRANTED TO
.MIAMI TELECOMMUNICATIONS, INC.,
A SUBSIDIARY OF AT&T BROADBAND
LLC ("AT&T-'), BY RESOLUTION NO. 00-
489, FROM AT&T TO AT&T-COMCAST,
INC.
or
A RESOLUTION OF THE MIAMI CITY
COMMISSION DENYING THE CHANGE
OF CONTROL OF THE CABLE
TELEVISION LICENSE GRANTED TO
MIAMI TELECOMMUNICATIONS, INC.,
A SUBSIDIARY OF AT&T BROADBAND
LLC ("AT&T`% BY RESOLUTION NO. 00-
489, FROM AT&T TO AT&T-COMCAST,
INC.
c1 n
J-00-135
. 6/6/00 11936
ORDINANCE NO.
AN ORDINANCE OF THE MIAMI CITY COMMISSION
AMENDING THE "CODE OF THE CITY OF MIAMI,
FLORIDA" BY REPEALING APPENDIX A AND REPEALING
AND RE-ENACTING CHAPTER 11 ENTITLED, "CABLE
TELEVISION" PROVIDING THE TERMS AND CONDITIONS
FOR THE OPERATION OF CABLE SYSTEMS AND THE
APPLICATION, PROCEDURES AND REQUIREMENTS
RELATING TO THE GRANT OF LICENSES FOR THE
CONSTRUCTION, INSTALLATION, OPERATION AND
MAINTENANCE OF CABLE SYSTEMS EQUIPMENT AND
FACILITIES IN, ON, ACROSS, ABOVE OR THAT IN
ANY MANNER WHATSOEVER USE THE CITY�S PUBLIC
RIGHTS-OF-WAY AND TO ENSURE THAT USE OF THE
CITY'S PUBLIC RIGHTS-OF-WAY IS IN THE PUBLIC
INTEREST AND IN CONFORMANCE WITH APPLICABLE
LAW, PROVIDING FOR CONFLICTS; PROVIDING FOR A
SAVINGS CLAUSE A SEVERABILITY CLAUSE AND AN
EFFECTIVE DATE.
•
WHEREAS, the City of Miami has under consideration the renewal
of its existing cable License Agreement with Miami Tele-
Communications, Inc. ("MTCI"), pursuant to the Communications Act
of 1934, as amended, 47 U.S.C. para. 521 et seq.; and
•
02- 917
WHEREAS, pursuant to Resolution No. 99-126, adopted
February Y
16 1999 the Cit Commission consented to and approved
the request pursuant to the Agreement and Plan of Restructuring and
Merger, dated June 23, 1998, among AT&T Corp. ("AT&T"), a New York
corporation ("parent"); Italy Merger Corp., a Delaware corporation
and a direct wholly owned subsidiary of parent ("merger sub"); and
Tele-Communications, Inc., a Delaware corporation (the "company"),
to the extent that such consent was required by the terms of the
cable franchise/License agreement and applicable Law, conditioned
upon escrow of monetary amounts and execution of the cable
franchise/License agreement incorporating the terms and conditions
in the binding offer; and
WHEREAS, the enactment of the Telecommunications Act of 1996,
and recent court precedent construing the scope of municipal •
regulatory authority over cable Licenses granted, and applicable
changes and developments in cable technology and services have
resulted in a changed regulatory environment; and
WHEREAS, the City Commission deems it necessary to create this
Ordinance to take into account the aforementioned changes and
developments and to better ensure that the use of the City Streets
by Cable Systems serves the public interest; and
WHEREAS, in order to enact this Ordinance in the public
Page 2 of 89
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interest, the City Coliumission must effectuate the repeal of
Appendix A to the Code of the City of Miami in its entirety;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1.The recitals and findings contained in the Preamble
to this Ordinance are hereby adopted by reference thereto and
incorporated herein as if fully set forth in this Section.
Section 2.Appendix A to Chapter 11 of the Code of the City of
Miami is hereby repealed in its entirety.
Section 3.Chapter 11 of the Code of the City of Miami,
Florida, as amended, is hereby repealed in its entirety. A new
Chapter 11 is hereby substituted in lieu thereafter as follows:
"Chapter 11
CABLE TELEVISION
Section 11-1. Short Title.
This Ordinance shall be known and may be cited as
the "City of Miami Cable Systems Ordinance."
Section 11-2. Definitions.
For the purposes of this Ordinance, the following
terms, phrases, words and derivations shall have the
meanings given herein. When not inconsistent with the
context, words used in the present tense include the
future, words in the plural number include the singular
number, and words in the singular number include the
plural number. The words "shall" and "will" are
mandatory, and "may" is permissive. Words not otherwise
defined herein or in any License Agreement that might be
granted hereunder shall be given the meaning set forth in
the Communications Act of 1934, 47 U.S.C. § 521
Page 3 of 89
02- 917
et seq. , and the Cable ConmiunicatioiLs Policy Act of 1964,
as amended by the Cable Television Consumer Protection •
and Competition Act of 1992, and as amended by the
Telecommunications Act of 1996, and as those Acts may
hereinafter be amended (collectively the "Cable Act"),
and, if not defined therein, the common and ordinary
meaning.
(a) "Activated Channel" means those Channels
engineered at the headend of a Cable System for the
provision of services generally available to Subscribers
of the Cable System, regardless of whether such services
actually are provided, including any Channel designated
for public, educational, or governmental use. Channels
on which signals flow in the direction from the headend
to the Subscriber are referred to as "downstream
Channels." Where the signal flows to the headend for re-
distribution, it shall be referred to as -an "upstream
Channel."
(b) "Access Channel" means any Channel on a Cable
System set aside without charge by the Licensee for
public, educational and/or local governmental use.
(c) "Affiliate" means any Person who directly or
indirectly owns or controls, is owned or controlled by,
or is under common ownership or control with a Licensee. •
(d) "Analog Channel" means no less than 6 MHz of
bandwidth.
(e) "Applicant" means any Person submitting an
Application within the meaning of this Ordinance.
(f) "Application" means any proposal, submission or
request to (1) construct and operate a Cable System
within the City; (2) transfer a License or control of the
License or the Licensee; (3) renew a License; (4) modify
a License; or (5) seek any other relief from the City
pursuant to this Ordinance, a License Agreement, the
Cable Act, or other applicable Law.
(g) "Basic Cable Service" or "Basic Service" means
any Service Tier which includes the retransmission of
local television broadcast signals, and public,
Page 4 of 89
02- 917
educational, or governmental Access Channels and such
. services as may be defined as basic by applicable Law, as
otherwise provided in the License Agreement, during the
term of any License granted pursuant to this Ordinance.
(h) "Cable Act" means the Communications Act of
1934, 47 U.S.C. §521 et seq. , as that Act has and may
hereinafter be amended.
(i) "Cable Operator" means any Person or group of
Persons who provides Cable Service over a Cable System
and directly or through one or more Affiliates owns a
significant interest in such Cable System, or who
otherwise controls or is responsible for, through any
arrangement, the management and operation of such a Cable
System.
(j) "Cable Service" means the transmission of video
or other programming services over a Cable System to
Subscribers together with Subscriber interaction, if any,
which is required for the selection or use of such video
programming or other programming services. To the extent
not prohibited by applicable Law, a Licensee agrees that
cable Internet services, including, but not limited to
Mome, Roadrunner and MediaOne Express, or other similar
services, provided by a Licensee, its parent, Affiliates
or subsidiaries, over the Cable System shall be deemed
• "Cable Services" as permitted under Title VI of the
Communications Act of 1934, as amended.
•
(k) "Cable System," or "System" means any facility
consisting of a set of closed transmission paths or other
transmission lines and associated signal generation,
reception and control equipment that is designed to
provide cable service which includes video programming
and which is -provided to multiple Subscribers within the
City. Such term does not include (1) a facility that
serves only to retransmit the television signals of one
(1) or more television broadcast stations; (2) a facility
that serves Subscribers without using any public rights-
of-way; (3) a facility of a common carrier that is
subject, in whole or in part, to the provisions of Title
II of the Communications Act of 1934, 47 U.S.C. §201 et
seq., except that such facility shall be considered a
Cable System (other than for purposes of
Page 5 of 89
02-- 917
Section 621(c) of the Cable Act) to the extent it is used
in the transmission of video programming directly to •
Subscribers, unless the extent of such use is solely to
provide interactive on demand services; (4) an open video
system that complies with Section 653 of the
Telecommunication- Act of 1996; or (5) any facilities of
any electric utility used solely for operating its
electric utility systems. The foregoing definition of
"Cable System" shall not be deemed to circumscribe the
valid authority of the City to regulate the activities of
any other communications system or provider of
communications services, including but not limited to
telephony and open video systems.
(1) "City" means the City of Miami, a municipal
corporation of the State of Florida, in its present
incorporated form or in any later reorganized,
consolidated, enlarged or reincorporated form.
(m) "Commission" means the City Commission of the
City of Miami, Florida.
(n) "Control of a Licensee or Applicant" means
possession of the ability to direct or cause the
direction of the management or policies of a Licensee or
Applicant, or the operation of the Licensee's System,
whether through operational control in whatever manner •
exercised or ownership of voting securities, by contract
or understanding, or in any other manner.
(o) "Fair Market Value" means the price that a
willing buyer would pay to a willing seller for a going
concern but with no value allocated to the License
itself.
(p) "FCC" means the Federal Communications
Commission, or any successor governmental entity thereto.
(q) "License" means the nonexclusive right granted
by the City to a Licensee in a License Agreement to
construct, maintain and operate a Cable System under, on,
and over Streets, roads and any other public ways,
rights -of -ways, or easements within the City. The term
does not include any license or permit that may be
required by this Ordinance or other Laws, ordinances or
•
Page 6 of 89
02- 917
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regulations of the City for the privilege of transacting
and carrying on a business within the City or for
. disturbing or carrying out any work on any Street.
(r) "License Agreement" means a contract entered
into in accordance with the provisions of this Ordinance
between the City and a Licensee that sets forth the terms
and conditions under which the License shall be
exercised.
(s) "License Area" means that territory within the
corporate limits of the City, as those limits may change
from time to time through annexation or contraction, over
which the terms of a License Agreement shall extend.
(t) "Licensee" means any Person granted a License
pursuant to this Ordinance who has entered into a License
Agreement with the City.
•
(u) "Gross Revenues" means all revenues recognized
in accordance with Generally Accepted Accounting
Principles (GAAP) generated directly or indirectly by the
Licensee and, any Affiliates, subsidiaries or parent of
the Licensee, provided that such entities are considered
Cable Operators as such term is defined herein, from any
source whatsoever arising from, attributable to, or in
any way derived from the operation of the Cable System to
provide Cable Services in the City. Notwithstanding
anything to the contrary contained in this subparagraph,
Gross Revenues include, but are not limited to, fees
charged Subscribers for Basic Service; fees charged
Subscribers for any optional, premium, per -Channel or
per -program service; fees charged Subscribers for any
tier of service other than Basic Service; installation,
disconnection, reconnection and change -in-service fees;
late fees; leased access fees; revenue from converter,
remote, modem or any other equipment rentals; revenues
from installation, service and content enhanced internet
products and services including, but not limited to,
access services and content enhanced
services to the extent said services
may be considered Title VI services according to
applicable Law; revenues from cable guides; advertising
revenues allocable to the City based on a percentage of
Page 7 of 89
p2- 917
Subscribers in the City divided by the Subscribers in the
System (such percentage shall then be multiplied by the
total advertising revenue of the System to determine the
allocable gross revenue stemming from advertising); and
revenues from home shopping Channels or other sources
allocable to the City, provided that where certain come
shopping Channel or other such revenue is allocable to
more than one License area due to common zip codes, the
Licensee shall allocate the percentage of revenue to the
City which is equivalent to the percentage of the
population of the City divided by the total population
for the allocable License, areas in question. Gross
Revenues shall be the basis for computing the License fee
imposed pursuant to Section 11-16 hereof. Gross Revenues
shall not include revenues received from programmers and
used by Licensee to market or promote a programming
service; any revenue received by Licensee for payment in
connection with PEG Access or facilities as required by
Section 11-15(b); any taxes on services furnished by the
Licensee which are imposed upon any Subscriber or user by
the state, county, City or other governmental unit and
collected by the Licensee on behalf of said governmental
unit and which the Licensee passes on in full to the
applicable tax authority. However, it is hereby
expressly provided that License fees shall be included in
the calculation of Gross Revenues. Further, License fees
shall not be paid on Subscriber deposits unless and until
said deposits are applied to a customer account for
services rendered. Notwithstanding anything herein to
the contrary, a Licensee shall include in Gross Revenues,
subject to License fees, revenues received from any and
all Cable Services for which such Licensee,- or any
Affiliate, subsidiary or parent of the Licensee pays a
License fee to any other jurisdiction, provided that such
Cable Service is offered over the Cable System in the
City, unless, the City and Licensee otherwise agree to
exclude certain revenues from License fees.
(v) "Institutional Network" means a dedicated
closed network, or an alternative acceptable to the City,
for use by the City to provide Cable Services and non -
Cable Services for public, educational and governmental
use within the City. The network shall be capable of
providing one-way, two-way, interactive, and machine -to -
machine transfer of audio, video, voice and data signals
Page 8 of 89
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U
within the network as designated by the City.
. (w) "Interconnection" means the electronic
connection of two or more Cable Systems for the purpose
of sharing public, education and government access
programming or transmissions.
(x) "Law" means all duly enacted and applicable
federal, state, county and City Laws, ordinances, codes,
rules, regulations and orders.
(y) "Leased Access Channel" means a Channel
designated in accordance with Section 612 of the
Communications Act, 47 U.S.C. §532, for commercial use by
Persons unaffiliated with the Licensee.
(z) "Overbuild" means a Cable System constructed to
serve Subscribers already served by an existing Cable
System.
(aa) "Person" means any individual, corporation,
partnership, association, joint venture, organization or
legal entity of any kind, and any lawful trustee,
successor, assignee, Transferee or Personal
representative thereof, but shall not mean the City.
(bb) "Service Tier" means a category of Cable
Service provided by a Licensee and for which a separate
charge is made by the Licensee.
•
(cc) "State -of -the -Art" means that level of
technical performance, equipment, components and services
more modern than that which has been developed and
demonstrated to be generally accepted and used in the
cable industry, excluding "tests" involving new products
offered for one year or less. The System shall have, at
a minimum, the capability. of no less. than the Channel
capacity, products and services available from a System
serving any similarly sized City or other community in
the State of Florida, or other such System owned and
operated by the Licensee, its parent, Affiliates or
subsidiaries outside the State, except as otherwise set
forth in a License Agreement. In no event shall a System
having a bandwidth of less than 750 MHZ be considered
"State -of -the -Art." Nothing herein shall be
Page 9 of 89
02- 917
c ao�
construed to require a Licensee to employ any specific
transmission technology. •
(dd) "Street or Streets" means the surface, the air
space above the surface and the area below the surface of
any public Street, highway, road, boulevard, concourse,
driveway, freeway, thoroughfare, parkway, sidewalk,
bridge, tunnel, park, waterway, dock, bulkhead, wharf,
pier, court, lane, path, alley, way, drive, circle,
easement, or any other public right-of-way or public
place, including public utility easements dedicated for
compatible uses, or any other property in which the City
holds any kind of property interest or over which the
City exercises any type of lawful control, and any
temporary or permanent fixtures or improvements located
thereon, as may be ordinarily necessary and pertinent to
construct and operate a Cable System; but shall not
include City -owned buildings or City private property.
(ee) "Subscriber" means any Person who lawfully
receives Cable Service delivered over the Cable System.
(ff) "Subscriber Base" means the total number of
subscribers who receive Cable Service delivered to
individual homes, dwelling units or multiple dwelling
units, excluding such multiple dwelling units billed on a
bulk -billing basis. •
(gg) "System Malfunction" means any Cable System
equipment, facility or signal failure or malfunction that
results in the loss of satisfactory service on one (1) or
more Channels to one (1) or more Subscribers. A
malfunction is major if it affects fifty (50) or more
Subscribers.
(hh) "Transfer of a License" means any transaction
in which (1) any ownership or other interest in a
Licensee or its Cable System is transferred from one
Person or group of Persons to another Person or group of
Persons so that Control of a Licensee or control of
Litensee's System is transferred; or (2) the rights
and/or obligations held by a Licensee under a License
Agreement are transferred or assigned to another Person,
group of Persons or business entity. A Transfer shall be
Page 10 of 89
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considered "pro forma" only when it involves a Transfer
to a Person, group of Persons or business entity wholly
. owned or controlled by the Licensee and shall not result
in a change in the control or ownership of the Licensee
or Licensee's System.
"Two -Way Capability"
means the
incorporation
,(ii)
into a Cable System of all
appropriate design
and
engineering characteristics and
features,
including
all
necessary equipment, which shall be
installed
and
operational, so that two-way transmission,
including
but
not limited to addressability,
over the
System can
be
implemented and activated.
(jj) "Video Channel" or "Channel" means a portion of
the electromagnetic frequency spectrum which is used in a
Cable System and which is capable of delivering a
television Channel, including the associated audio
signal.
Section -11-3. Intent and Purposes.
(a) It is the intent of the City and the purpose of
this ordinance to promote the public health, safety, and
general welfare by providing for the grant of one (1) or
more Licenses for the construction and operation of a
Cable System, and the provision of Cable Service, within
the City; to provide for the regulation, to the extent
provided for by Law, of each Cable System within the City
in the public interest; to provide for the payment of
fees and other valuable consideration by a Licensee to
the City for the use of Streets and rights-of-way by its
Cable System; to promote the widespread availability of
quality Cable Service to City residents and businesses,
the City, and other public institutions; to encourage the
development of cable and other communications
technologies and Cable Systems as a means of
communication between and among members of the public,
City businesses, the City, and other public institutions;
to promote competitive cable rates and services; to
promote the safe and efficient use of City Streets; to
enhance and maximize the full potential of Streets used
by Cable Systems; and to encourage the provision of a
diversity of information sources to City residents,
businesses, the community, the City, and other public
{
Page 11 of 89
02- 917
institutions by cable technology.
(b) Recognizing the continuing development of •
communications technology and uses, it is the policy of
the City to encourage experimentation and innovation in
the development of Cable System uses, services,
programming and techniques that shall be of general
benefit to the community to the extent all such
experiments and innovations are consistent with
applicable Laws.
Section 11-4. Grant of Authority; License Required.
(a) The City may grant one or more Licenses in
accordance with this Ordinance.
(b) No Person may construct or operate a Cable
System over, on, or under public Streets, or provide
Cable Service, in the City without a License granted by
the City unless otherwise permitted to do so by Law, and
no Person may be granted a License without having entered
into a License Agreement with the City pursuant to this
Ordinance and other such ordinance of the City as may be
applicable.
(c) Unless otherwise authorized by Law, any License
granted pursuant to this Ordinance is solely for the
provision of Cable Service. The City's authority to
regulate and/or authorize the use of the Streets of the
City for the provision of non -cable video or other
telecommunications services (including the offering of
dark fiber or connectivity) and/or any service not
included under Title VI of the Communications Act of
1934, as amended, as of the effective date of this
Ordinance, shall not be waived, nor shall such
authorization to use the Streets of the City for the
provision of other than Cable Services be granted, under
a License granted pursuant to this Ordinance. Licensee's
failure to comply with this subsection shall result in
imposition of fines to be paid by the Licensee to the
City in the amount of not less than Two Thousand Dollars
($2,000) per violation, per day or part thereof that the
violation continues.
Section 11-5. License Characteristics.
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(a) A License authorizes use of City Streets and
. rights-of-way, for installing, on poles or underground,
cables, wires, lines, optical fiber, underground conduit,
ducts, conductors, amplifiers, vaults, and other
facilities as necessary and pertinent to operate a Cable
System to serve Subscribers within the City, but .foes not
expressly or implicitly authorize the Licensee to provide
service to, or install cables, wires, lines, underground
conduit, or any other equipment or facilities upon
private property without owner consent (except for use of
compatible easements pursuant to Section 621 of the Cable
Act, 47 U.S.C. § 541(a)(2)), or to use publicly or
privately owned conduits without a separate agreement
with the owners.
(b) A License is nonexclusive, and shall not
expressly or implicitly preclude the issuance of other
Licenses to operate Cable Systems within the City, or
affect the right of the City to authorize use of City
Streets to other Persons to operate Cable Systems or for
other purposes as it determines appropriate.
(c) All privileges prescribed by a License shall be
subordinate to any prior lawful occupancy of the Streets,
and the City reserves the right to reasonably designate
where a Licensee's facilities are to be placed within the
Streets. Such designation may include, but not be
limited to, consideration of the availability of space in
the rights of way.
(d) No Transfer of a License shall occur without
the prior consent of the City and unless Application is
made by the Licensee, and City approval obtained,
pursuant to Section 11-24 hereof.
(e) A License granted to an Applicant pursuant to
this Ordinance to construct, operate and maintain a Cable
System within the City, shall be deemed to constitute
both a right and an obligation on the part of the
Licensee to provide the services and facilities of a
Cable System as required by the provisions of this
Ordinance and the License Agreement. The License
Agreement shall constitute all of the terms and
conditions of the License that are finally negotiated and
Page 13 of 89
•
02- 917
c aa�
agreed upon by the City and Licensee. Licensee shall be
bound by all documents or other portions of an
Application, including oral representations made by an
Applicant, or its representatives, before the City
Commission, which the City relies upon as inducement to
granting an initial, renewal, transfer or modification of
a License, or taking other action relating to the
License, and which are integrated by the City and
Licensee as an exhibit to the License or amendment
thereof.
(f) Notwithstanding anything to the contrary, in
the event that Licensee, its parent, Affiliate or
subsidiary elects to offer to Subscribers video
programming services through an "open video system",
Licensee shall remain subject to all terms and conditions
of a License granted pursuant to this Ordinance.
Section 11-6. Licensee Subject to Other Laws, Police Power.
(a) A Licensee shall at all times be subject to and
shall comply with all applicable and lawful federal,
state and local Laws. A Licensee shall at all times be
subject to all lawful exercise of the police power of the
City.
(b) Subject to applicable Law, except as may be
specifically provided in this Ordinance or under the
terms of a License Agreement and subject to the Cable
Act, the failure of the City, upon one or more occasions,
to exercise a right or to require compliance or
performance under this Ordinance or a License Agreement
shall not be deemed to constitute a waiver of such right
or a waiver of compliance or performance.
Section 11-7. Interpretation of License Terms; Conflicts.
(a) The provisions of this Ordinance at the time of
the grant of a License (initial or renewal) shall apply
to a License Agreement as if fully set forth in the
License Agreement, and the express terms of this
Ordinance shall prevail over conflicting or inconsistent
provisions in a License Agreement unless such License
Agreement expresses an intent to amend or modify a
requirement of this Ordinance.
Page 14 of 89
02- 917
LWn
ac
(b) Except as to matters which are gover.Lied by
. federal Law or regulation, a License Agreement shall be
governed by and construed in accordance with the Laws of
the State of Florida.
Section 11-8. Applications for Grant, Renewal, Modification or
Transfer of Licenses.
(a) A written Application shall be filed with the
City for (1) grant of an initial License; (2) renewal of
a License in accordance with Section 626 (a) - (g) of the
Communications Act, 47 U.S.C. 546; (3) modification of a
License Agreement; (4) Transfer or change of control of a
License; or (5) any other relief from the City pursuant
to this Ordinance or a License Agreement.
(b) To be acceptable for filing, a signed original
of the Application shall be submitted together with seven
(7) copies, be accompanied by the required non-refundable
Application filing fee as set forth in Section 11-8(i)
hereof, conform to any applicable request for proposals,
and contain all required information. All Applications
shall include the names and addresses of Persons
authorized to act on behalf of the Applicant with respect
to the Application.
(c) All Applications accepted for filing shall be
made available by the City for public inspection.
(d) An Application for the grant of an initial
License may be filed pursuant to a request for proposals
issued by the City or on an unsolicited basis. The City,
upon receipt of an unsolicited Application, may issue a
Request for Proposals. If the City elects to issue a
Request for Proposals upon receipt of an unsolicited
Application, the Applicant may submit an amended
Application in response to the Request for Proposals, or
may inform the City that its unsolicited Application
should be considered in response to the Request for
Proposals, or may withdraw its unsolicited Application.
An Application which does not conform to the reasonable
requirements of a Request for Proposals may be considered
non-responsive and denied on that basis.
• Page 15 of 89
02- 917
(e) An Application for the grant of an initial
License shall contain, at minimum, the following
information
(1) Name and address of the Applicant and
identification of the ownership and
control of the Applicant, including: the
names and addresses of all Persons with
five percent (5k) or more ownership
interest.in the Applicant, including the
names and addresses of parents or
subsidiaries holding such ownership
interests directly or indirectly; the
Persons who control the Applicant; all
officers and directors of the Applicant;
and any other Cable System ownership or
other communication ownership interest of
each named Person; provided that in the
case of an Application for a renewal or
transfer of a License, the information
regarding Cable System ownership or other
communication ownership interest shall be
provided upon written request of the
City;
(2) An indication of whether the Applicant,
or any Person controlling the Applicant,
or any officer, or director or Person
with five percent (50) or more ownership
interest in the Applicant, has been
adjudged bankrupt, had a cable License
revoked, or been found by any court or
administrative agency to have violated a
security or antitrust Law, or to have
committed a felony, or any crime
involving moral turpitude; and, if so,
identification of any such Person and a
full explanation of the circumstances;
provided that in the case of an
Application for renewal or transfer of a
License, a Licensee shall provide such
information upon written request;
(3) A demonstration of the technical, legal
and financial ability of the Applicant to
Page 16 of 89 .
02- 917
construct and/or operate the proposed
Cable System, including identification of
key personnel;
(4) A copy of any agreement covering the
License area, if existing, between the
Applicant and any public utility
providing for the use of any facility of
the public utility, including, but not
limited to, the use of utility poles,
lines or conduits. In the case of a
Transfer pursuant to Section 11-24
hereof, Licensee shall only be required
to provide evidence of the assignability
of such agreements;
(5) In the case of an Application for an
initial License, a statement prepared by
a certified public accountant or duly
authorized financial officer of the
Applicant regarding the financial ability
of the Applicant to complete the
construction and operation of the Cable
System proposed;
(6) A description of the prior experience of
the Applicant in Cable System ownership,
construction and operation, and
identification of communities in which
the Applicant or any Person having a
controlling interest in the Applicant or
having more than a ten percent (10%)
ownership interest in the Applicant has,
or has had, a cable franchise or License
or any interest therein; provided that in
the case of an Application for a transfer
of a License, a Licensee shall provide
such information upon written request;
(7) Upon reasonable request of the City, the
Applicant shall provide copies of any
franchise or License agreements entered
into by Applicant, its parent, Affiliate
or subsidiary;
Page 17 of 89
•
02- 917
(8) A description of the physical facilities
proposed, including Channel capacity,
performance characteristics, headend, and •
access facilities; upon request, the
Applicant shall provide information on
technical design;
(9) In the case of an Application for an
initial grant of a License, where
applicable, a description of the
construction of the proposed Cable
System, including an estimate of plant
mileage and its location, the proposed
construction schedule, a description,
where appropriate, of how services shall
be converted from existing facilities to
new facilities, and information on the
availability of space in conduits
including, where appropriate, an estimate
of the cost of any necessary
rearrangement of existing facilities;
(10) For informational purposes, the proposed
rate structure, including projected
charges for each Service Tier,
installation, converters, and other
equipment or services, and the ownership
interest of the Applicant in any proposed
program services to be delivered over the
Cable System;
(11) A demonstration of how the proposal of
the Applicant shall reasonably meet the
future cable -related needs and interests
of the community;
(12) A description of any Cable Services
offered by the Applicant or its parent,
Affiliate or subsidiary, and Applicant's
plan with respect to the availability of
services to Subscribers in the City;
(13) Upon request, for information purposes
only, a description of any non -Cable
Services offered by the Applicant or its
Page 18 of 89 •
02- 917
u
parent, Affiliate
of the Licensee
availability of
Subscribers in the
O
or subsidiary and plan
with respect to the
such services to
City;
(14) Upon request, for information purposes
only, a description of any non -Cable
Services offered by the Applicant or its
parent, Affiliate or subsidiary in any
other community and a copy of the terms
and conditions pursuant to which
Applicant offers such non -Cable Services
in any other community;
(15) A proposal by Applicant to offer discount
rates to qualified senior citizens,
consistent with Section 623(e) (1) of the
Cable Act;
(16) In the case of an Application for an
initial License or the transfer of a
License, where the transferee is not a
publicly traded company, pro forma
financial projections for the first five
(5) years of the License term, including
a statement of projected income, and a
schedule of planned capital additions,
with -all significant assumptions
explained in notes or supporting
schedules;
(17) If an Applicant proposes to provide Cable
Service to an area already served by an
existing cable Licensee, the
identification of the area where the
Overbuild would occur, the potential
Subscriber density in the area which
would encompass the Overbuild, and the
ability of the Streets to accommodate an
additional System;
(18) In the case of a renewal or transfer
Application, any other information as may
be reasonably necessary to demonstrate
compliance with the requirements of this
isPage 19 of 89
02- 01'7
Ordinance and information that the City
may reasonably request of the Applicant
that is relevant to the consideration of
the City of the Application; and
(19) An affidavit or declaration of the
Applicant or authorized officer
certifying the truth and accuracy of the
information in the Application,
acknowledging the enforceability of
Application commitments, and certifying
that the proposal meets all federal and
state Law requirements.
(f) An Application for modification of a License
Agreement shall include, at minimum, the following
information:
(1) The specific modification requested;
(2) The justification for the requested
modification, including the impact of the
requested modification on Subscribers and
others;
(3) A statement whether the modification is
sought pursuant to Section 625 of the
Cable Act, 47 U.S.C. §545, and, if so, a
demonstration that the requested
modification meets the standards set
forth in 47 U.S.C. §545;
(4) Any other reasonable information
necessary for the City to make an
informed determination on the Application
for modification; and
(5) An affidavit or declaration of the
Applicant or authorized officer
certifying the truth and accuracy of the
information in the Application, and
certifying that the Application is
consistent with all federal and state Law
requirements.
Page 20 of 89
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0
•
C3
(g) An Application for renewal of a License shall
comply with the requirements of Section 11-23 hereof.
(h) An Application for approval of a Transfer of a
License shall comply with the requirements of Section 11-
24 hereof.
(i) To be acceptable for filing, an Application
shall be accompanied by a non-refundable filing fee in
the following amount, as appropriate:
(1) For a new or initial
License: $25,000
(2) For renewal of a License: $10,000
(3) For a Transfer of a License
other than a pro forma
Transfer) : $10,000
(4) For a pro forma Transfer
of a License: $ 5,000
(5) For modification of a License
Agreement pursuant to
47 U.S.C. § 545: $10,000
(6) For any other relief: $ 5,000
The purpose of the filing fee is to defray a portion of
the cost to the City in processing an Application. Such
fee shall be credited against amounts due under Section
11-9(f) herein. The filing fee is therefore intended to
be a charge incidental to the awarding or enforcing of a
License within the meaning of Section 622(g)(2)(D) of the
Cable Act, 47 U.S.C. § 542 (g) (2) (D) , and may not be
deducted from the License fee imposed in a License
Agreement and shall not be.passed through to Subscribers.
Section 11-9. Grant of Licenses.
(a) The City may grant a License for a period not
to exceed ten (10) years.
(b) The City may make the grant of a License
Page 21 of 89
02- 917
r, v
conditioned upon the completion of construction within a
reasonably prescribed time or upon the performance of •
other specific obligations which are to be set forth in
the License Agreement, specifying that failure to comply
with the condition shall cause the License to become null
and void or may require the Licensee to pay liquidated
damages to the City as specified in a License Agreement.
(c) In evaluating an Application for a License, the
City may consider, among other things, the following
factors: the technical, financial, and legal
qualifications of the Applicant to construct and operate
the proposed System; the adequacy of the proposed
construction arrangements, facilities, equipment, and
services based on the public convenience, safety and
welfare; the experience of the Applicant in constructing
and operating Cable Systems and providing Cable Service
in other communities, if any; the ability of City Streets
to accommodate the proposed System; the potential
disruption to users of City Streets and any resultant
inconvenience to the public; and whether the proposal
shall meet reasonably anticipated community needs and
serve the public interest. Evaluation by the City shall
not be based on the content of the programming the
Applicant proposes to provide.
(d) The City shall hold a public hearing to
consider an Application or Applications for a License. •
The Applicant(s) shall be notified of the hearing and
shall be given an opportunity to be heard. Based upon
the Application(s), the testimony presented at the public
hearing, any recommendations of the City or staff, and
any other information relevant to the Application(s), the
City shall decide by resolution whether to grant or deny
a License Application(s) and decide the terms and
conditions of any License(s) granted.
(e) After complying with the above requirements,
the City Commission shall approve or disapprove the
proposed License Agreement by resolution, or may direct
that it be subject to further negotiation.
(f) An Applicant for an initial License hereunder
shall reimburse the City for all reasonable expenses
incurred by the City in considering and processing the
Page 22 of 89 •
02- 91'7
u 1C3
Application, including but not limited to costs and
expenses resulting from accrued City in-house staff time,
out of pocket expenses or administrative costs, and
. consulting and legal costs, less the amount of the filing
fee set pursuant to Section 11-8(i). Within thirty (30)
calendar days from the date of the resolution approving
or denying the initial grant of the License thereof by
the City Commission, the City shall bill the Applicant
for the amount of the processing fee and its method of
calculation. If the processing fee is not received by
the City within thirty (30) calendar days of date of the
bill, the City shall notify such Applicant and the
Applicant shall pay a late fee at the rate of eighteen
percent (18%) per annum of the amount of the unpaid or
underpaid fee provided, however, that such rate does not
exceed the maximum amount allowed under applicable Law.
If said fee is not received in total by the City within
sixty (60) calendar days of the date of the bill, the
City shall notify such Applicant and, if applicable, the
License shall be revoked. This processing fee is
intended to be a charge incidental to the awarding or
enforcing of a License within the meaning of Section
622 (G) (2) (d) of the Cable Act, 47 U.S.C. §542 (G) (2) (d) ,
and may not be deducted from the License fee imposed in a
License agreement and shall not be passed through to
Subscribers.
•
•
Section 11-10. Insurance; Surety; Indemnification.
(a) A Licensee shall be required by the City to
maintain, and by its acceptance of the License,
specifically agrees that it shall maintain, throughout
the entire term of the License including any renewals
thereof, insurance coverage insuring the Licensee with
respect to the construction, operation and maintenance of
the Cable System, and the conduct of the Licensee's
business in the City, as described below and as required
to satisfy all requirements of Florida Law.
(1) Comprehensive General Liability Insurance
including contractual liability,
explosion, collapse and underground
property damage, bodily injury and broad
form property damage, personal and
advertising injury and products/completed
Page 23 of 89
02- 917
Cr
operations coverage. The Licensee shall
carry limits with a combined single limit
of no less than Three Million Dollars •
($3,000,000) per occurrence naming the
City as an additional insured. The
Licensee shall require any subcontractors
to provide adequate insurance and provide
proof of insurance to the City as well.
(2) The Licensee shall carry Workers
Compensation and Employers Liability
Insurance in compliance with Florida
Statute. The Licensee shall require any
subcontractors to provide workers
compensation insurance for all of the
subcontractors' employees.
(3) Automobile Liability Insurance covering
all owned, hired and non -owned vehicles
used in connection with any activities
arising out of this agreement. Such
insurance shall afford coverage with a
combined single limit of no less than One
Million Dollars ($1,000,000) per
occurrence. The Licensee shall require
any subcontractors to provide automobile
liability insurance for all of the
vehicles used by subcontractors arising •
out of the License.
(b) All insurance policies shall be with insurance
companies authorized to do business in the State of
Florida and shall be with insurance companies with a
minimum Best's Rating of AV11, or an equivalent rating,
and Financial Size Category Rating of X (ten).
(c) A Licensee shall keep on file with the City
certificates of insurance which certificates shall
indicate evidence of payment of the required premiums and
shall indicate that the City, its officers, boards,
Commission, commissioners, agents and employees are
listed as additional insureds, and that this insurance is
primary over any other insurance or self-insurance
program available to the City whether collectible or not.
In the event of a potential claim such that the City
Page 24 of 89 •
02- )
claims insurance coverage, Licensee shall immediately
respond to all reasonable requests by the CiLy for
information with respect to the scope of the insurance
. coverage.
(d) All insurance policies shall name the City, as
additional insured and shall further provide that any
cancellation or reduction in coverage shall not be
effective unless sixty (60) calendar days prior written
notice thereof has been given to the City. A Licensee
shall not cancel any required insurance policy without
submission of proof that the Licensee has obtained
alternative insurance satisfactory to the City which
complies with this Ordinance.
(e) A Licensee shall, at its sole cost and expense,
indemnify, hold harmless, waive subrogation against and
defend the City, its officials, boards, commissions,
commissioners, agents, and employees, against any and all
third party 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 by the Licensee, its agents
or employees, the conduct of Licensee's business by the
Licensee, its agents or employees in the City, or the
granting of a License Agreement to the Licensee or in any
way arising out of the Licensee's enjoyment or exercise
of a License granted hereunder, regardless of whether the
act or omission complained of is authorized, allowed or
prohibited by this Ordinance or a License Agreement.
This provision includes, but is not limited to, the
reasonable attorneys' fees of the City incurred in
defending against any such claim, suit or proceedings;
and claims arising out of copyright infringements or a
failure by the Licensee 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 Cable Act, 47 U.S.C. 558, and
claims against the Licensee for invasion of the right of
privacy, defamation of any Person, firm or corporation,
or the violation or infringement of any copyright, trade
mark, trade name, service mark or patent, or of any other
right of any Person, firm or corporation. The City shall
give the Licensee written notice of any claim or of the
commencement of any action, suit or other proceeding
• Page 25 of 89
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02-
90
covered by the indemnity in this Section. In the evert
any such claim arises, the Licensee shall have the
obligation and duty to defend the City and any other .
indemnified party hereunder; provided, however, Licensee
may not agree to any settlement of claims affecting the
City without the City Attorney's approval. If the City
Attorney finds ,:hat separate representation to fully
protect the interests of the City is necessary, Licensee
shall consult with the City Attorney on counsel that is
acceptable to the City Attorney. If Licensee is
unwilling or unable to select counsel acceptable to the
City Attorney, Licensee shall pay all expenses incurred
by the City in defending itself with regard to any
action, suit or proceeding subject to this
indemnification. The City's expenses shall include all
out of pocket expenses, attorney's fees and costs of the
City Attorney or his/her assistants, or any employees of
the City, outside attorneys, or other agents. Not
withstanding anything to the contrary contained in this
subparagraph, the obligation of the Licensee shall not
extend to any claims caused by the gross negligence of
the City, its officials, boards, commissioners, agents or
employees, or to claims arising from Licensee's provision
of Access Channels for public, educational and/or
governmental use pursuant to Section 11-15 hereof and a
License Agreement, to the extent such claims relate to
programming and content on such Channels, over which
Licensee has no editorial control nor exercises
administrative control.
(f) Notwithstanding anything to the contrary, a
Licensee shall be responsible for all actions of the
subcontractors and shall agree to indemnify and hold
harmless the City for any and all claims against the City
or arising out of the activity of such subcontractors.
Section 11-11. Security Fund.
(a) The City shall require in a License Agreement
that, prior to the License becoming effective, the
Licensee shall post with the City a security fund. Such
fund .may be in the form of a cash deposit, letter of
credit, or performance bond as determined by the City in
its sole discretion or as set forth in a License
Agreement. The security fund shall be used to ensure the
Page 26 of 89 •
02- 917
Licensee's faithful performance of and compliance with
all provisions of this Ordinance, the License Agreement,
and other applicable Law, and compliance with all orders,
. permits and directions of the City, and the payment by
the Licensee of any claims, liens, fees, or taxes due the
City which arise by reason of the construction, operation
or maintenance of the System. T'_.e amount of the security
-fund shall be the amount that the City determines, under
circumstances existing at the time, that is necessary to
protect the public, to provide adequate incentive to the
Licensee to comply with this Ordinance and the License
Agreement, and to enable the City to effectively enforce
compliance therewith, but in no event less than Two
Million Dollars ($2,000,000). The License Agreement
shall provide for the procedures to be followed with
respect to the security fund. Neither the posting of the
cash deposit or filing of an indemnity bond or any form
of performance bond with the City, nor the receipt of any
damages recovered by the City thereunder, shall be
construed to excuse faithful performance by the Licensee
or limit the liability of the Licensee under the terms of
its License for damages, either to the full amount of the
fund or otherwise.
(b) The rights reserved to the City with respect to
the security fund are in addition to all other rights of
the City, whether reserved by this Ordinance or
authorized by other Law or the License Agreement, and no
action, proceeding or exercise of a right with respect to
such security fund shall affect any other right the City
may have.
Section 11-12. Construction Bond.
(a) The City shall require in a License Agreement
that, prior to any Cable System construction, upgrade,
rebuild or other significant work in the Streets a
Licensee shall establish. in the favor of the City a
construction bond in an amount specified in the License
Agreement or other authorization as necessary to ensure
the faithful performance of the Licensee of the
construction, upgrade, rebuild or other work, but in no
event shall the amount of the bond be less than Five
Hundred Thousand Dollars ($500,000). Licensee shall at
all times comply with Chapter 54 of the Code of the City
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of Miami.
(b) In the event a Licensee subject to such a •
construction bond fails to complete the Cable System
construction, upgrade or other work in the Streets in a
safe, timely and competent manner in accord with the
provisions of the License Agreement, there shall be
recoverable, jointly and severally from the principal and
surety of the bond, any damages or loss suffered by the
City as a result, including the full amount of any
compensation, indemnification or cost of removal or
abandonment of any property of the Licensee, or the cost
of completing or repairing the System construction,
upgrade or other work in the Streets, plus a reasonable
allowance for attorneys' fees, up to the full amount of
the bond. The City may also recover against the bond any
amount recoverable against the security fund pursuant to
Section 11-11 hereof where such amount exceeds that
available under the security fund.
(c) The License Agreement may specify that upon
completion of the Cable System construction, upgrade,
rebuild or other work in the Streets and payment of all
construction obligations of the Cable System to the
satisfaction of the City, the City may eliminate the bond
or reduce its amount. However, the City may subsequently
require an increase in the bond amount for any subsequent
construction, upgrade, rebuild or other work in the •
Streets.
(d) The construction bond shall be issued by a
surety having a minimum rating of A-1 in Best's Key
Rating Guide, Property/Casualty Edition, or an equivalent
rating acceptable to the City; shall be subject to the
approval of the City Attorney; and shall provide that
this bond may not be canceled, or allowed to lapse, until
sixty (60) calendar days after receipt by the City, by
certified mail, return receipt requested, of a written
notice from the issuer of the bond of intent to cancel or
not to renew.
(e) The rights reserved by the City with respect to
any construction bond established pursuant to this
Section are in addition to all other rights and remedies
the City may have under this Ordinance, the License
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Agreement, or at Law or equity.
Section 11-13. Minimum Facilities and Services.
(a) The following minimum requirements for
facilities and services apply to all Licenses granted by
the City. The City may require in a License Agreement
that a Licensee exceed these minimum requirements where
it determines, under circumstances existing at the time
of the grant of the License, that the additional
requirements are necessary to meet the future cable
related needs of the City and interests or to serve the
public interest.
(1) Any Cable System that commences
construction, including but not limited
to initial construction, rebuild,
upgrade, or reconstruction after the
effective date of this Ordinance shall
have a minimum capacity of at least 750
MHZ providing no less than seventy-eight
(78) activated Video Channels or its
digital equivalent, including Two-way
Capability as defined in Section 11-2(ii)
hereof. The construction, rebuild,
upgrade or reconstruction of any Cable
System must be completed within a twenty-
four (24 ) month construction schedule. A
License Agreement may provide for a
larger minimum Channel capacity
requirement as well as upgrades during
the term of a License. Licensee's
failure to comply with this subsection
shall result in imposition of fines to be
paid by the Licensee to the City in the
amount of not less than One Thousand
Dollars ($1,000) per violation, per day
or part thereof that the violation
continues.
(2) The City may require in a License
Agreement that a Licensee provide Access
Channels, facilities and other support
for public, educational and/or
governmental use, in excess of the
Page 29 of 89
minimum requirement of this Ordinance.
Licensee's failure to comply wits: the
terms of a License Agreement with respect
to the provision of Access Channel
facilities and other support for public,
educational and/or governmental use shall
result in imposition of fines to be paid
by the Licensee to the City in the amount
of not less than One Thousand Five
Hundred Dollars ($1,500) per violation,
per day or part thereof that the
violation continues.
(3) A Cable System shall provide Leased
Access Channels as required by federal
Law.
(4) If required by the terms of a License
Agreement, a Licensee shall, at minimum,
provide at least one cable outlet and
shall provide Cable Service, including
Basic and Cable Programming Service Tier,
with the exception of digital and
premium/pay-per-view, or its equivalent,
without charge, to each and every floor
of all public buildings including, but
not limited to City buildings, parks,
community and day-care centers, and any •
other public building designated by
resolution of the City Commission. In
addition, Licensee agrees to provide one
(1) outlet of cable service without
charge to each and every floor of all
buildings of the City that may be
constructed, opened or annexed within the
City after the effective date of the
License Agreement, subject to the service
policy set forth below. In new locations
and remodels of existing locations,
Licensee shall have access to "pre -
wire." Such Cable Service shall at a
minimum include the Basic Cable Service
tier, and all programming offered without
additional charge on the cable
programming Service Tier offered by
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Licensee over the Cable System.
Licensee's failure to comply with this
subsection shall result in imposition of
. fines to be paid by the Licensee to the
City in the amount of not less than Five
Hundred Dollars ($500) per violation, per
day or part thereof that the violation
continues.
(5) If required by the terms of a License
Agreement, Licensee shall, upon request,
provide to each and every floor of all
public buildings including, but not
limited to City buildings, parks,
community and day-care centers, and any
other public building designated by
resolution of the City Commission, with,
at minimum, one (1) free connection to an
on-line service provided by Licensee.
Such on-line service will provide access
to the Internet. Upon request, each City
building, park, community center and day-
care center within the City, and any
other public building designated by
resolution of the City Commission, shall
receive, at minimum, one (1) free cable
modem which will be allowed to be
networked, and free, unlimited access to
the on-line service. All services
requested shall be provided not later
than one (1) year after Licensee makes
commercially available an on-line service
for personal computers within the City.
Licensee's failure to comply with this
subsection shall result in imposition of
fines to be paid by the Licensee to the
City in the amount of not less than Five
Hundred Dollars ($500) per violation, per
day or part thereof that the violation
continues.
(6) Licensee shall, at a minimum, provide at
least one cable outlet and shall provide
Cable Service, including Basic and Cable
Programming Service Tier, with the
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exception of digital and premium/pay-per-
view, or its equivalent, without charge,
to each floor, not to exceed three (3) •
floors, in all public and private schools
(as defined by, and which receives
funding pursuant to, Title I of the
Elementary and Se-^ondary Education Act of
1965, 20 U.S.C. 421(a) et seq., as
amended), (grades K-12). Licensee will
make arrangements for each school to
receive school materials for teachers and
other facility administrators, to the
extent they are available, that explain
the educational applications of the
broadband Cable Systems and services
offered on the Cable System. The
materials will be provided to all
connected schools. Licensee's failure to
comply with this subsection shall result
in imposition of fines to be paid by the
Licensee to the City in the amount of not
less than Five Hundred Dollars ($500) per
violation, per day or part thereof that
the violation continues.
(7) Licensee shall upon written request from
the school, provide all schools (as
defined in (6), above) within the City •
which receive Cable Service with, at
minimum, one (1) free connection to an
on-line service provided by Licensee.
Such on-line service will provide access
to the Internet. Upon request, each
connected school shall receive, at
minimum, one (1) free cable modem which
will be allowed to be networked, and
free, unlimited access to the on-line
service. All services requested shall be
provided not later than one (1) year
after Licensee makes commercially
available an on-line service for personal
computers within the City. Additional
cable modems and operational support and
services (for example, assisting schools
in setting up and maintaining reliable
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Intcrnet connections) shall be provided
to connected schools upon written request
. and at the actual and direct costs of
Licensee. In addition, Licensee shall
sponsor local workshops in each region to
educate teachers and other facility
administrators about its on-line service
and to provide connected schools, City
parks, community centers and day-care
centers with an opportunity for hands-on
training. Licensee's failure to comply
with this subsection shall result in
imposition of fines to be paid by the
Licensee to the City in the amount of not
less than Five Hundred Dollars ($500) per
violation, per day or part thereof that
the violation continues.
(8) A Cable System shall include an
"emergency alert" capability, which shall
permit the City Manager or designated
representative, to the extent permitted
by applicable law, to remotely override
the audio of all Channels on the Cable
System or to allow for video crawl over
all Channels.
• (9) The City may seek the use of a portion of
the Cable System's bandwidth for
collecting data from Subscribers for
purposes including but not limited to a
fire, police or other alarm system, or
reading water meters, provided that the
following conditions are met: 1) Licensee
has excess capacity on its System, at
each location the City wishes to utilize
at the time.of the request and, as of the
date of the City's request, has not
allocated such excess capacity, as
evidenced by a written agreement with a
third party for such bandwidth for
provision of services during the twelve
(12) months following the date of City's
request; 2) the City purchases the
necessary equipment according to the
•
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reasonable technical specifications
provided by Licensee; 3) attachment of
the necessary equipment is performed by
the Licensee owning the Cable System, and
the City reimburses the labor and
material cost of such attachment to said
Licensee at the direct, actual costs to
Licensee; 4) the City pays to the
Licensee the direct and actual costs of
the bandwidth usage, but in no event to
exceed the lowest rate offered by the
Licensee to an unaffiliated third party
for similar bandwidth usage; and 5) no
sooner than one (1) year after City
commences use of the bandwidth, a
Licensee may thereafter reclaim the
excess bandwidth, upon no less than one
hundred twenty (120) calendar days
notice, if it plans to provide an
additional product or service to its
customers utilizing said bandwidth within
six (6) months of reclaiming the
bandwidth, provided that City shall have
a right of first refusal for use of the
bandwidth on terms and conditions equal
to those at which the Licensee proposes
to offer the capacity to a third party.
To the extent a Licensee is providing an •
Institutional Network for the City, at no
cost to the City, such provision may be
in lieu of the Licensee's obligations
under this Section.
(10) A Licensee shall make available to its
Subscribers equipment capable of decoding
closed circuit captioning information for
the hearing impaired.
(11) The Cable System operator shall maintain
equipment capable of providing standby
powering for headend transportation and
trunk amplifiers for a minimum of two (2)
hours. The equipment shall be
constructed so as to automatically notify
the cable office when it is in operation
Page 34 of 89 •
and to automatically revert to the
standby mode when the AC power returns .
All utility safety- regulations must be
followed to prevent a standby generator
from powering the "dead" utility line,
with possible injury to an unwitting
lineman.
(b) Most Favored Nation.
(1) Pursuant to the requirements of a License
Agreement, a Licensee shall provide, at a minimum, the
same facilities, services, products and benefits
available on any System serving any other similarly sized
city or other community in the State of Florida, or other
such conuminities outside the State, owned and operated by
the Licensee, its parent, Affiliate or subsidiary.
(2) Licensee's failure to comply with this
subsection shall result in imposition of fines to be paid
by the Licensee to the City in the amount of not less
than One Thousand Five Hundred Dollars ($1,500) per
violation, per day or part thereof that the violation
continues.
(c) Universal Service.
• Upon request and payment of all applicable charges
and provided that the requesting Person grants the
Licensee access to his or her premises in order to
furnish, maintain, and continue to offer Cable Service to
that Person, a Licensee shall, throughout the term of a
License, offer any Person at his or her place of
residence or place of business within the License Area,
all Cable Services distributed over the Cable System,
except as otherwise set forth in a License Agreement.
Licensee's failure to comply with this subsection shall
result in imposition of fines to be paid by the Licensee
to the City in the amount of not less than Five Hundred
Dollars ($500) per violation, per day or part thereof
that the violation continues.
•
(d) Upon Licensee's acquisition of facilities in
any City Right -of -Way, or upon the annexation to the City
of any area in which Licensee owns or operates any
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facility, Licensee shall, at the City's request, submit
to the City a statement describing all facilities •
involved, whether authorized by License, permit,
franchise or other prior right, and specifying the
location of all such facilities to the extent Licensee
has possession c� such information. Such facilities
shall immediately be subject to the terms of Licensee's
License granted pursuant to this Ordinance.
(e) Pursuant to the requirements of a License
Agreement, in the event Licensee offers cable Internet
services over its Cable System in the City, it shall,
taking into account technical feasibility, provide access
to its cable modem platform to providers of Internet
access and on-line services on comparable terms and
conditions to those terms and conditions on which access
is provided by Licensee, its parent, Affiliate or
subsidiary in any other community. Licensee shall comply
with all lawful requirements with respect to access to
Licensee's cable modem platform for providers of Internet
access and on-line services.
(f) A Licensee granted a License under this
Ordinance shall make a proposal to the City for the
installation, operation and maintenance of or provide
funding for an Institutional Network ("I -NET"). The I-
NET shall, at minimum, take into consideration the
interconnection of all government and other public •
buildings, schools, or Persons as designated by the City,
with minimum technical facilities as shall be specified
subject to negotiation between the City and the Licensee.
A Licensee may provide the City, subject to City
approval, with an equivalent of an I -NET, based on
current technology, in lieu of the obligation set forth
herein.
(g) inhere an I -NET already exists. in the City,'an
Applicant for a License shall provide the City with a
capital grant in an amount which represents the cost of
an Institutional Network, or, at the City's sole option,
alternative facilities, equipment and support, including
but not limited to a new Institutional Network, in
satisfaction of Licensee's obligation to provide the City
with an I -NET pursuant to this Ordinance.
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Section 11-14. Technical Standards.
(a) Any Cable System within the City shall at
. minimum meet the technical standards of the FCC or other
applicable federal, state, county or City technical
standards, including any and all applicable rules,
regulations, codes, and standare3 as hereinafter amended
or adopted. All television signals .transmitted on a
Cable System shall include any closed-circuit captioning
information for the hearing impaired. Antennas,
supporting structures, and outside plants used in the
System shall be designed to comply with all generally
accepted industry practices and standards and with all
federal, state, county and City ordinances, rules and
regulations, including but not limited to the City Zoning
Code.
(b) All construction, installation and maintenance
of the Cable System shall comply with federal and state
codes, as well as the National Electrical Safety Code,
the National Electric Code, the South Florida Building
Code, all local codes and ordinances and any and all
applicable rules, regulations and codes, as hereinafter
may be amended or changed.
(c) At the times specified in the License Agreement
or as required by FCC rules, the Licensee shall perform,
at its expense, proof of performance tests designed to
demonstrate compliance with the requirements of this
Ordinance, the License Agreement, and FCC requirements.
The Licensee shall provide, upon written request, the
proof of performance test results to the City within ten
(10) calendar days after completion. The City shall have
the right to inspect the Cable System facilities during
and after construction to ensure compliance with the
requirements of the License Agreement, this Ordinance,
and FCC standards.
(d) The City may require any other tests as
specified in a License Agreement, or required by
applicable Law or regulation, or where there have been
extensive complaints made, or where there exists other
demonstrative evidence which in the reasonable judgment
of the City casts doubt upon the reliability or technical
quality of the Cable System to be performed at the
Page 37 of 89
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expense of the Licensee; provided that if the results of
,such tests indicai.e that Licensee is in compliance with
the requirements of this Ordinance and/or the License •
Agreement, the expenses incurred by the Licensee in
conducting said tests shall be borne by the City. The
Licensee shall provide the test results to the City
within ten (10) calendar days of completion of the proof
of performance or other tests.
(e) The Licensee shall provide the City ten (10)
calendar days advance written notice when a proof of
performance test required in subsections (c) and (d)
above is scheduled, in order that the City may have an
observer present.
(f) A Licensee shall not design, install or operate
its facilities in a manner that shall interfere with the
signals of any broadcast station, the facilities of the
City, the facilities of any public utility, the Cable
System of another Licensee, or individual or master
antennas used for receiving television or other broadcast
signals. In the event any such interference is
discovered, Licensee shall take all actions necessary to
remedy the problem as quickly as is technically feasible.
(g) In any License granted pursuant to this
Ordinance, a Licensee shall agree to maintain that level
of technology to satisfy the State -of -the -Art as defined •
in Section 11-2(cc), subject to qualifications,
conditions, and terms that may be expressly identified in
a License Agreement, if any..Licensee's failure to comply
with this subsection shall result in imposition of fines
to be paid by the Licensee to the City in the amount of
not less than One Thousand Five Hundred Dollars ($1,500)
per violation, per day or part thereof that the violation
continues.
(h) Licensee shall provide Access Channels,
equipment and facilities, and capital support, in
accordance with Section 11-15, as well as such other
benefits and services required by a License Agreement.
Licensee's failure to comply with this subsection shall
result in imposition of fines to be paid by the Licensee
to the City in the amount of not less than One Thousand
Five Hundred Dollars ($1,500) per violation, per day or
Page 38 of 89 .
part thereof that the violation continues.
(i) In the event that the City Commission
. determines that it is in the public interest of the
residents of the City to renew or approve the Transfer of
a License where the Licensee is not in compliance with
the requirements of this section at the time of the
grant, the City may agree in an agreement, or an
amendment to a License Agreement, to a program whereby
the Licensee is permitted a specified period of time, not
to exceed twenty-four (24) months, to come into
compliance. However, the City's approval of any such
plan shall be contingent upon Licensee's agreement to
provide the City and any Subscribers with fines, refunds,
credits or service vouchers as liquidated damages for the
harm suffered due to Licensee's non-compliance. The City
may grant extension of the time period herein, for good
cause shown.
Section 11-15. Public Education and Government Support.
(a) It is the purpose and intent of the City to
require that all Licensees provide Access. Channels,
facilities, equipment and support sufficient to meet the
needs and interests of the community with respect to
public, education and government activities.
(b) A Licensee granted a License pursuant to this
• Ordinance shall provide to the City, a grant per
Subscriber, as represented in the Subscriber Base as
defined in Section 11-2(ff), per month for PEG capital
support, as set forth in a License Agreement. The actual
amount of the per Subscriber, per month charge shall be
determined based upon the City's needs as identified in a
projected budget to be prepared by the City Manager and
submitted to Licensee not later than September 30 of each
year during the term of the License Agreement.
•
(c) A Licensee shall provide a minimum of one (1)
Access Channel, and facilities dedicated to the exclusive
use of the City and such other capital support for
public, educational and/or governmental use as required
in a License Agreement and allocated at the sole
discretion of the City. The Licensee shall provide one
upstream Channel for each Access Channel then used by the
Page 39 of 89
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City to the headend, as technically necessary for the
operation of Access Channels referred to herein or as
otherwise required by a License Agreement. The City may •
increase the number of PEG Channels to a number not to
exceed five (5), so long as a threshold use requirement
is met for each Channel the City then utilizes. In order
to request an additional PEG Access Channel, the existing
PEG Access Channel(s) must be programmed at least eight
(8) hours a day with non -repetitive, locally produced
programming, Monday through Friday, for a minimum of six
(6) consecutive weeks. For purposes of calculating the
eight (8) hour programming requirement, the live
cablecast of all Commission and Board meetings, in their
entirety, shall be included for not more than one
Channel. Character -generated programming shall not be
included for purposes of calculating the programming
requirement. Once the threshold is met and an additional
Access Channel given, the initial Access Channel(s) must
maintain the threshold requirement. After attaining the
threshold requirement, if the initial Access Channel
fails to meet the threshold for four (4) consecutive
months, the additional Access Channel may be reclaimed by
Licensee upon sixty (60) calendar days written notice.
Under no circumstances shall the City lose the right to
its first initial Access Channel. However, at all times
after a second Access Channel is provided to the City,
the initial Access Channel shall maintain the threshold
requirement a minimum of fifty percent (50t) of the time,
to be measured every four (4) months based on usage for
the preceding twelve (12) months. In addition, a
Licensee shall cablecast to all Subscribers in the City
of Miami all Miami -Dade County public, educational,
and/or government Channels provided however that the
total number of Access Channels shall not exceed the
number set forth in a License Agreement.
(d) During the term of the License, the Licensee
shall provide, as specified in a License Agreement or
otherwise agreed to, such equipment, facilities and
technical support as the City Commission may determine is
useful for the production and cable casting of
programming on the public, education and government
Channels. Applications for initial grants, renewals or
transfers of Licenses shall include a proposal to provide
such support.
Page 40 of 89 is
(e) As may be required in a License Agreement, a
Licensee shall tape or cablecast live events held in the
. City as may be designated by the City subject to no less
than four (4) weeks advance notice in writing to the
Licensee. The number of events designated by the City
hereunder shall be no 'Less than twenty-four (24) in any
given calendar year. A License Agreement may provide for
a maximum number of designated events. Unless specified
by the City, the live cablecast of a Commission or Board
meeting shall not be counted as a designated event.
(f) Applications for an initial or renewed License
may, and at the request of the City, shall include
proposals for the provision of an Institutional Network
interconnecting City, educational institutions, and/or
other public facilities as designated by the City from
time to time.
(g) Applications for an initial License shall
include a proposal for the Interconnection of Licensee to
any or all other Cable Systems operating within the
County for purposes of providing or sharing PEG Access
Channels. In the case of an Application for renewal or
transfer of a License, Applicant shall include in its
Application a statement outlining the status of the
Interconnection of Licensee's Cable System to any and all
Cable Systems operating within Miami -Dade County.
10 (h) A License may provide for additional financial
grants in lieu of or in addition to some or all of the
facilities, equipment, and services referenced in this
Section.
(i) A Licensee shall agree that the facilities,
equipment, monetary grant, and all other support to be
provided by a Licensee pursuant to this Section, and as
set forth in a License Agreement constitute capital costs
which are required by the License to be incurred by
Licensee for public, educational, or government access
facilities within the meaning of Section 622(g)(2)(C) of
the Cable Act, 47 U.S.C. §542(g)(2)(C), that such grant
does not constitute a License fee or tax within the
meaning of Cable Act, state Law, City Code of the City of
Miami, or a License Agreement; and that the Licensee
Page 41 of 89
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shall waive, and will not assert in any proceeding, any
claim to the contrary. The City shall use the
facilities, equipment, monetary grant and all other •
support to be provided by Licensee pursuant to this
Section in a manner consistent with Section 622(g)(2)(C)
of the Cable Act.
Section 11-16. License Fee.
(a) A Licensee, as compensation for the privilege
granted under a License for the use of the Streets of the
City to construct and operate a Cable System to provide
Cable Services in the City, shall pay to the City a
License fee in an amount up to a maximum of either (1)
five percent (5t) of the Licensee's Gross Revenues
derived directly or indirectly from the operation of its
Cable System within the City during the term of its
License pursuant to Section 11-2(u) hereof; or (2) in the
event the Cable Act or other applicable Law is amended to
permit the City to assess a License fee of a greater
amount than that specified in (1) above, the Licensee
agrees to pay to the City the new amount after a public
hearing in which the public and Licensee are given an
opportunity to comment on the impact of the higher fee.
Moreover, Licensee shall conclude any such agreement with
respect to a fee increase with the City prior to
finalizing an agreement with Miami -Dade County.
(b) Licensee's payment of the License fee to the •
City shall be reduced only by that amount the Licensee is
required to pay Miami -Dade County pursuant to any cable
License, License or ordinances of the County.
Notwithstanding anything to the contrary, Licensee shall
pay to the City the full amount of all fees to which it
is entitled pursuant to part A of this Section, on
revenues not expressly included in the definition of
Gross Revenues " pursuant to Chapter 8 of the Code of
Miami -Dade County, or as such Chapter may be amended.
(c) A Licensee shall pay the License fee due to the
City on a quarterly basis. Payment for each quarter
shall be made to the City not later than thirty (30)
calendar days after the end of each calendar quarter.
(d) A Licensee, shall file with the City, on a
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quarterly basis with the payment of the License fee, a
financial statemei,t setting forth the computation of
Gross Revenues used to calculate the License fee for the
. preceding quarter and a detailed explanation of the
method of computation. The statement shall include but
not be limited to identification of all revenue streams
directly or indirectly connected with the Cable System,
in accordance with the definition of Gross Revenues,
Section 11-2(u), whether or not involved in License fee
computation. The statement shall be certified by a
certified public accountant or the chief financial
officer or other duly authorized officer of the Licensee.
The Licensee shall bear the cost of the preparation of
such financial statements.
•
(e) Subject to applicable Law, no acceptance by the
City of any License fee payment shall be construed as an
accord that the amount paid is in fact the correct
amount, nor shall such acceptance of payment be construed
as a release of any claim the City may have for
additional- sums payable.
(f) The License fee payment is not a payment in
lieu of any other tax, fee or assessment.
(g) The City may, from time to time, and upon
reasonable notice, inspect and audit any and all books
and records of the Licensee relevant to the determination
of Gross Revenues and the computation of License fees
due, and may re -compute any amounts determined to be
payable under the License. If, as a result of the audit,
the City determines that the Licensee has underpaid the
quarterly License fees owed in an amount equal to or
exceeding two percent (2t) of the License fees actually
paid based on components of Gross Revenues as
specifically defined herein,the cost of the audit shall
be paid by the Licensee to the City within thirty (30)
calendar days of receipt of demand for payment, unless
Licensee can show the audit is materially incorrect. A
Licensee shall make all books and records necessary to
satisfactorily perform the audit readily available to the
auditors in Miami -Dade County, for inspection and copying
or in the alternative, Licensee shall pay all incremental
costs and fees incurred by the City for the City to
perform the audit at a location outside of Miami -Dade
Page 43 of 89
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r, I (."-
County. A Licensee shall provide any and all materials
within thirty (30) calendar days of receipt of a request
from the City. •
(h) In the event that a License fee payment is not
received by the City on or before the due date set forth
in Subsection (c) above, or is underpaid, the Licensee
shall pay a late charge of eighteen percent (189.0 per
annum of the amount of the unpaid or underpaid License
fee payment, provided, however, that such rate does not
exceed the maximum amount allowed under Florida Law. Any
such failure to remit payment on a timely basis, after
written notice and failure to cure, shall be considered a
material violation of this Ordinance and any License
granted pursuant hereto. Any interest and/or late
charges paid by Licensee is intended to be a charge
incidental to the enforcing of a License within the
meaning of Section 622 (g)(2)(D) of the Cable Act, 47
U.S.C. §542 (g)(2)(D), and may not be deducted from the
License fee imposed by this Ordinance or any License
Agreement nor passed through to Subscribers.
(i) When a License terminates for any reason, the
Licensee shall file with the City within ninety (90)
calendar days of the date its operations in the City
cease, a financial statement, certified by the chief
financial officer of the Licensee, showing the Gross
Revenues received by the Licensee since the end of the
previous fiscal year. Adjustments shall be made at that
time for License fees due to the date that the Licensee's
operations ceased.
(j) The Licensee's use of City private property for
the placement or attachment of equipment used in the
provision of Cable Services (e.g., generators, power
supply units, concrete environmental closures (CEC),
etc.) shall be in accordance with City policies and
procedures.
Section 11-17. Reports and Records.
.(a) The Licensee shall submit reports to the City
quarterly according to the following schedule: January
through March are due on or before April 25, April
Page 44 of 89 •
02- 917
through June are due on or before July 25, July through
September are due on or before October 25, and October
through December are due on or before January 25 of each
. year.
The quarterly report shall include, but not be limited
:.o:
(1) Number of homes passed, number of cable
plant miles, number of new installs,
number of disconnects, and net result of
new installs and disconnects.
(2) Customer service and repair telephone
statistics, broken down by month,
indicating the number of calls received,
number of calls abandoned, number of
calls receiving a busy signal, percentage
of total calls for which a busy. signal
was received, average duration of each
call handled by a customer service
representative, average length of time
each caller waits before speaking
directly to a customer service
representative and number of customer
service representatives staffed to handle
telephone calls.
(3) To the extent compiled by the Licensee in
the normal course of its business,
statistics by month for the number of
total standard installations performed,
number of standard installations
performed within seven (7) calendar days,
number of service interruptions, number
of planned service interruptions, number
of service interruptions by day part (1
a.m. to 6 a.m., 6 a.m. to 6 p.m., 6 p.m.
to 1 a.m., or, upon request of the City,
based on shorter measurement intervals as
Licensee has available), number of
service interruptions by duration, number
of service interruptions responded to
within twenty four (24) hours, number of
other service problems responded to
Page 45 of 89
•
02- 917
c
within thirty six (36) hours,
preventative measures to reduce or •
eliminate service interruptions, and any
other information which may be reasonably
required to monitor the Licensee's
compliance with this chapter. A Licensee
m:..y comply with the requirements of this
subsection by providing to the City a
copy of the actual complaint and/or
service interruption logs) kept by
Licensee.
(4) Revenue infprmation, including, but not
limited to: Number of Subscribers for
each type of Cable Service offered, and
the Gross Revenue from all sources
attributable to the operations of the
Cable System by the Licensee, its Parent,
Affiliate or subsidiary in the City of
Miami, stating separately by category
each source and the amount of revenue
attributable thereto.
(b) Within six (6) months of the close of its
fiscal year, the Licensee shall provide an annual report
to the City that includes the following information:
(1) A summary of the activities of the •
previous year in development of the
System, including but not limited to,
products and services, video and
nonvideo, initiated or discontinued,
policy changes enacted during the
previous year, number of Cable
Subscribers for each tier or type of
service or product (including gains and
losses), homes passed, and miles of cable
distribution plant in service. The
summary shall also include a comparison
of any construction, including System
upgrades, during the year with any
projections previously provided to the
City, as well as rate and charge
increases and/or decreases for the
previous fiscal year. The report shall
Page 46 of 89 •
n2- 9i7
provide a comparison to other Systems
operated by Licensee, its parent,
Affiliate, or subsidiary sufficient to
. determine Licensee's compliance with its
obligation pursuant to this Ordinance and
the License Agreement.
(2) An annual financial report to include a
statement of sources of revenues for the
Licensee, or the smallest operational
unit closest to the level of the Licensee
for which data is available, and
Licensee's parent; provided that the City
may request, in writing, and Licensee
shall provide, additional information at
the System or License level, as
reasonably necessary. The Licensee shall
provide an audited financial report if
Licensee has a report in its normal
course of business. If not, the
statements shall be certified by the
chief financial officer of the Licensee.
The financial report shall include notes
to the financial statements that specify
all significant accounting policies and
practices upon which it is based.
(3) Where applicable, a copy of updated maps
• depicting the location of all trunk lines
and feeder lines and associated devices
in the City .to the extent such locations
have changed. Upon request of the City,
such maps shall be provided in digitized
form at the expense of the Licensee.
(4) A summary of written Subscriber or
resident complaints, identifying the
number and nature of complaints and their
disposition, including an annual summary
of statistics provided in the quarterly
report. Where complaints involve
recurrent System problems, the nature of
each problem and the corrective measures
taken shall be identified. More detailed
information concerning complaints shall
Page 47 of 89
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be submitted upon written request of the
City.
5 (
Upon written request, a summary of the a
number of service interruptions, number
of planned service interruptions, and
number of service interruptions by
duration, along with preventative
measures to eliminate reoccurrence.
(6) Upon written request, if the Licensee is
a corporation, a list of officers and
members of the board of directors; the
officers and members of the board of
directors of any parent corporation; and
if the Licensee or parent corporation
stock or ownership interests are publicly
traded, a copy of its most recent annual
report.
(7) Upon written request, if the Licensee is
a partnership, a list of the partners,
including any limited partners, and
addresses; and if the general partner is
a corporation, a list of officers and
members of the board of directors or the
corporate general partner, and the
officers and directors of any parent
corporation; and where the general
partner or parent corporation ownership
interests are publicly traded, a copy of
its most recent annual report.
(8) Upon written request, a list of all
Persons holding five percent (5%) or more
ownership or otherwise cognizable
interest in the Licensee pursuant to the
Cable Act and 47 C.F.R. 76.501.
(9) A copy of the rules and regulations of
the Licensee applicable to Subscribers of
the Cable System.
(10) A report on the number of senior citizen,
economically disadvantaged or disabled
Page 48 of 89 0
02- 9t7
Subscribers receiving any rate discounts
pursuant to Section11-20 (a) hereof, and
the amount of any such discounts for
. specific services if Licensee offers
separate rates or discounts for those
categories of Subscribers.
(11) A report on the number of multiple
dwelling buildings and units therein
receiving service under bulk agreements
pursuant to Section 11-20(a) hereof.
(12) A full schedule and description of
services, service hours and location of
the customer service office of the
Licensee or offices available to
Subscribers, and a schedule of all rates,
fees and charges for all services
provided over the Cable System.
(13) Upon written request, a report on the
number of total Subscribers served by the
Licensee in the Cable System, with a
breakdown by the types cf services
received by the Subscribers.
(14) Upon written request, a report on the
number of personnel employed by the
Licensee by area of responsibility,
including any ethnic reporting pursuant
to Equal Employment opportunity
Commission requirements.
(c) Upon each written request by the City made not
more than once annually, a Licensee shall within forty-
five (45) calendar days of receipt of .the request,
provide the following documents to the City, without
regard to whether the documents are filed by the Licensee
or an Affiliate:
(1) Annual financial
or its parent
Licensee which
issues an annual
report of the Licensee
or any Affiliate of
controls Licensee and
financial report;
Page 49 of 89
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02- 917
(2) Copyright filings reflecting the
operation of the System;
(3) Any pleadings, petitions, applications,
communications, reports and documents
(collectively referred to as "filings")
submitted within the previous twelve (12)
months by or on behalf of the Licensee to
the FCC, SEC or any state or federal
agency, court or regulatory commission
which filings may adversely impact the
operation of the Cable System of the
Licensee in the City or that may impact
the rights or obligations of the City
under this Ordinance or the License
Agreement issued pursuant to this
Ordinance and any and all responses, if
any, to the above mentioned filings.
(4) Any and all notices of deficiency,
forfeiture, or documents instituting any
investigation, civil or criminal
proceeding issued by any state or federal
agency regarding the System, Licensee, or
any Affiliate of Licensee, provided,
however, that any such notice or
documents relating to an Affiliate of
Licensee need be provided only to the
extent the same may directly or
indirectly affect or bear on operations
of the Licensee in the City. For
example, a notice that an Affiliate which
has a management contract for the City's
System was not in compliance with FCC EEO
requirements would be deemed to affect or
bear on operations in the City.
(5) A copy of any cable Licenses or
franchises entered into by Licensee, its
parent, Affiliate or subsidiary. A
Licensee shall provide a copy of such
documents as soon as reasonably possible
_but no later than within thirty (30)
calendar days of such request.
Page 50 of 89
02- 917
(d) Notwithstanding anything to the contrary, the
Licensee agrees to provide the City, within ten (10)
calendar days of filing or receipt of such, any document
. that may, in the reasonable judgment of the Licensee,
adversely impact the construction, operation or
maintenance of the Cable System of the Licensee.
•
(e) The Licensee shall furnish to the City such
additional reports as a Licensee may prepare as a
customary business practice with respect to its
operations, which in the discretion of the City Manager
are reasonable and necessary for the administration
and/or enforcement of this chapter.
(f) Within ten (10) calendar days of filing by
Licensee, its parent, subsidiary, or Affiliate, Licensee
shall provide notice to the City Manager of any
petitions, filings, reports and correspondence filed with
any federal, state, or local agencies or courts, which
may, in the reasonable judgment of the Licensee,
adversely affect City and/or Subscribers with regard to
the Ordinance or a License Agreement, including, but not
limited to, any request for protection under bankruptcy
laws, or any judgment related to a declaration of
bankruptcy. In any administrative or legal proceeding in
which Licensee is a party, Licensee shall provide a copy
of any filed document, upon written request of the City,
within five (5) calendar days. To the extent the City
desires and may properly participate in the proceeding,
Licensee agrees that it will not oppose any necessary
extension or tolling of time which may allow the City's
participation in said matter. However, the Licensee may
oppose or object to any extension of time that exceeds
the period of time used by Licensee to provide a copy of
the requested filing to the City.
(g) A Licensee shall make a complete set of books
and records available for inspection, copying and audit
by the City in Miami -Dade County, for purposes of
ascertaining compliance with requirements of this
Ordinance and the License Agreement, subject to
subsection (h) below. Such inspection, copying and audit
shall be upon reasonable notice and during normal
business hours.
Page 51 of 89
02- 917
c �Vv,
(h) The City shall accord all books and records
thaw it inspects under this Section the degree of
confidentiality such books and records are entitled to
under federal and state Law. A Licensee's books and
records shall not constitute public records, except to
the extent required by federal and state Law. To the
extent a Licensee considers any books or records that it
is required to produce to be confidential or otherwise
protected from public disclosure, Licensee shall
designate which documents it views as protected and
provide a written explanation to the City of the legal
basis for Licensee's claim of protection.
(i) Notwithstanding anything to the contrary in this
section, within thirty (30) calendar days of the third annual
anniversary of the effective date of a License Agreement and
no more often than every two (2) years thereafter, the
Licensee shall upon written notice of the City, submit a
report to the City, in a form reasonably acceptable to the
City, discussing technological advances and other information
necessary to evaluate Licensee's compliance with State -of -the -
Art obligations under a License Agreement or this Ordinance,
except as otherwise set forth in a License Agreement.
Section 11-18. Customer Service Requirements.
(a) A Licensee shall at a minimum maintain all parts of
its System in good condition and in accordance with FCC
standards. Sufficient employees shall be retained to provide
safe service for all of its customers and facilities as set
forth in this Ordinance and a License Agreement. The customer
service requirements set forth herein are applicable to all
services subject to the Ordinance. Licensee's failure to
comply with this subsection shall result in a refund order in
the amount of a Subscriber's monthly bill, and a fine in the
amount of Five Hundred Dollars ($500), per violation, per day
or part thereof that the violation continues.
(b) A Licensee shall maintain at least two (2)
conveniently located business offices and/or service centers
within the City limits, unless Licensee offers free pick-up
and delivery of rental equipment, in which case Licensee shall
maintain at least one (1) such location. This business office
shall be open at minimum from 8:00 a.m. to 6:00 p.m., Monday
through Friday, and 8:30 a.m. to 5:00 p.m. on Saturday.
Page 52 of 89 •
Further, Licensee shall locate, staff, operate and maintain
said office(s) so as to provide all Subscribers, including but
not limited to those Subscribers who may be elderly, disabled
. or otherwise impaired, with access to its office. The office
shall make available for all customers 1) parking within
reasonable proximity of the office and 2) sufficient covered
waiting areas and adequate seating capacity in an air-
conditioned space. Such office must have adequate counter
personnel to keep wait time to an average of ten (10) minutes
or less. Licensee's failure to comply with this subsection,
under normal operating conditions, shall result in a fine in
the amount Three Hundred Dollars ($300) per violation, per day
or part thereof that the violation continues.
(c) Licensee shall maintain a listed local, toll-free
telephone number under the name by which Licensee is doing
business in the City, and employ a sufficient number of
telephone lines, personnel and answering equipment or service
to allow reasonable access by Subscribers and members of the
public to contact the Licensee on a full-time basis, twenty-
four (24) hours per day, seven (7) calendar days per week
including holidays. Knowledgeable, qualified Licensee
representatives shall be available to respond to customer
telephone inquiries, twenty-four (24) hours per day, seven (7)
days per week including holidays in, at minimum, English,
Spanish and Creole languages. Licensee's failure to comply
with this subsection shall result in a refund order in the
amount of a Subscriber's monthly bill, and a fine in the
• amount of Three Hundred Dollars ($300), per violation, per day
or part thereof that the violation continues.
(d) Licensee shall answer all customer service and
repair telephone calls made under normal operating conditions
within thirty (30) seconds, including wait time and within an
additional thirty (30) seconds to transfer the call.
Customers shall receive a busy signal less than three percent
(3%) of the time. These standards shall be met no less than
ninety percent (90%) of the time under normal operating
conditions except for the period from 12:00 a.m. to 6:00 a.m.,
where a Licensee and the City have mutually agreed in writing
to an alternative standard measured on a quarterly basis.
Licensee shall employ Automatic Call Distribution technology,.
or its equivalent, to compile and generate the information
required to establish compliance with these standards.
Licensee's failure to comply with this subsection shall result
Page 53 of 89
02- 917
in a fine in the amount Three Hundred Dollars ($300) per
violation, per day or part thereof that the violation
continues. •
(e) A Licensee shall employ and maintain sufficient
qualified personnel and equipment to be available
(1) to accept payments;
(2) to exchange or accept converters or other
equipment;
(3) to receive Subscriber complaints or requests
for service or repairs on a full-time basis,
twenty-four (24) hours per day, seven (7) days
per week;
(4) to initiate service installations, undertake
normal repairs, initiate action with respect
to any Subscriber service complaints within
twenty-four (24) hours;
(5) to enable a service technician to respond to
service calls twenty-four (24) hours per day,
seven (7) days a week including holidays when
more than 25 Subscribers served from the same
nearest active electronic device, such as an
amplifier or node, call with the similar •
complaint. Licensee's failure to comply with
this subsection shall result in a fine in the
amount of Three Hundred Dollars ($300) per
violation, per day or part thereof that the
violation continues.
(f) Licensee must meet each of the following standards
no less than ninety-five (95) percent of the time under normal
operating conditions as measured on a quarterly basis:
(1) Standard installation work shall be performed
within seven (7) calendar days after an order
has been placed except in those instances
where a Subscriber specifically requests an
installation date beyond the seven (7)
calendar day period. if scheduled
installation is neither started nor completed
Page 54 of 89 •
as scheduled, the Subscriber =hall be
. telephoned by an employee of the Licensee the
same day. Evening personnel shall also
attempt to call Subscribers at home between
the hours of 5:30 p.m. and 8:00 p.m. on the
day prior to any appointment as a reminder of
scheduled installation work. If the call to
the Subscriber is not answered, an employee of
the Licensee shall telephone the Subscriber
the next day;
�J
(2) Licensee shall respond to service
interruptions promptly and in no event later
than twenty-four (24) hours after the
interruption becomes known to Licensee. Other
service problems shall be responded to
promptly and in no event later than forty-
eight (48) hours after the problem becomes
known to Licensee. All service interruptions,
and service problems within the control of
Licensee, shall be corrected within forty-
eight'(48) hours after receipt of a complaint;
(3) The appointment window alternatives made
available for installations, service calls,
repairs, and other installation activities
shall be either a specific time, a four-hour
time block during normal business hours, or at
the election and discretion of the Subscriber,
"all day." These options shall be clearly
explained to the customer at the time of
scheduling;
(4) Licensee may not cancel an appointment with a
Subscriber after the close of business on the
business day prior to the scheduled
.appointment;
(5) If at any time an installer or technician is
running late for a scheduled appointment, an
attempt to contact the customer shall be made
and the appointment rescheduled as necessary
at a time which is convenient for the
customer.
Page 55 of 89
02- 91'7
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(6) Licensee's failure to comply with this
subsection shall result in a bill credit in an
amount prorated on a daily basis,. with a •
minimum of one (1) day, and a fine in the
amount of Three Hundred Dollars ($300), per
violation, per day or part thereof that the
v-olation continues.
(g) Subscribers who have experienced two (2) missed
installation or service appointments due to the fault of
Licensee shall receive installation free of charge. If the
installation was to have been provided free of charge or if
the appointment was for service or repair, the Subscriber
shall receive a credit on the next bill of not less than
Twenty Dollars ($20). Licensees failure to comply with this
subsection shall result in a fine in the amount of One Hundred
Dollars ($100) per violation, per day or part thereof that the
violation continues.
(h) Disconnection.
(1) Voluntary Disconnection.
(i) A Subscriber may terminate service at any
time.
(ii) A Licensee shall promptly disconnect any
Subscriber who so requests from the Cable .
System of the Licensee. No period of
notice prior to voluntary termination of
service may be required of Subscribers by
any Licensee. So long as the Subscriber
returns equipment within five (5)
business days of the disconnection, no
charge may be imposed by any Licensee for
such voluntary disconnection, or for any
Cable Services delivered after the date
of disconnect request.
(iii)A Subscriber may be asked, but not
required, to disconnect the equipment of
the Licensee and return it to the
business office, subject to (ii) above.
(iv) Any security deposit and/or other funds
Page 56 of 89 .
02- 917
L r)
due the Subscriber shall be refunded on
disconnected accounts after any customer
premises equipment including all
. converters but excluding wiring have been
recovered by the Licensee. The refund
process shall take a maximum of forty-
five (45) calendar days from the date
equipment is returned to Licensee to the
date the customer receives the refund.
(2) Involuntary Disconnection. If a Subscriber
fails to pay a monthly Subscriber or other fee
or charge, the Licensee may disconnect the
service outlet of the Subscriber; however,
such disconnection shall not be effected until
thirty-five (35) calendar days after the due
date of the monthly Subscriber fee or other
charge, and ten (10) calendar days advance
written notice of intent to disconnect to the
Subscriber in question. If the Subscriber
pays within thirty-five (35) calendar days of
the due date and after notice of disconnection
has been given, the Licensee shall not
disconnect. After disconnection, upon payment
by the Subscriber in full of all proper fees
or charges, including the payment of the
reconnection charge, if any, the Licensee
shall reinstate service as soon as
• practicable. Licensee reserves the right to
deny service to any customer who has been
repeatedly disconnected for non-payment of
services to the extent such rights are
consistent with applicable state and federal
Law.
(3) With respect to any disconnection, whether
requested or involuntary, a Licensee shall
comply with the rules and regulations of the
FCC and applicable Law with respect to
ownership, sale, removal and abandonment of
home wiring. Failure to comply with such
rules including, but not limited to providing
applicable notice to Subscribers and property
owners shall be considered a violation of this
Ordinance.
0 Page 57 of 89
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(4) Licensee's
subsection
amount of
violation,
violation
failure to comply with this
shall result in a fine in the
Three Hundred Dollars ($300) per
per day or part thereof that the
continues.
(i) Licensee shall intentionally interrupt service only
for good cause and for the shortest time possible and shall
use its best efforts to minimize the number of service
interruptions between 6:00 p.m. and 11:00 p.m. Licensee shall
maintain a written log for all intentional service
interruptions and all other service interruptions. Licensee's
failure to comply with this subsection shall result in a fine
in the amount of Three Hundred Dollars ($300) per violation,
per day or part thereof that the violation continues.
(j) Licensee shall notify the City Manager or designee
immediately if a service interruption affects fifty or more
Subscribers for a time period greater than one hour. The City
Manager, in his or her discretion, shall establish appropriate
methods for the notification required herein, including any
procedures for notification after normal business hours.
Licensee's failure to comply with this subsection shall result
in a fine in the amount of Two Hundred Dollars ($200) per
violation, per day or part thereof that the violation
continues.
(k) Licensee shall cause all of its field employees to
wear a picture identification badge indicating employment by
Licensee. This badge shall be clearly visible to the public.
All company vehicles shall display the company name,
telephone number and logo, if any, in a manner clearly visible
to the public. Contractor vehicles shall display the
contractor name, telephone number, contractor license number,
if applicable, as well as the Cable Operator's name.
Licensee's failure to comply with this subsection shall result
in a fine in the amount of Two Hundred Dollars ($200) per
violation, per day or part thereof that the violation
continues.
(1) A Licensee shall develop written procedures for the
investigation and resolution of all Subscriber or City
resident complaints, including, but not limited to, those
regarding the quality of service and equipment malfunction,
Page 58 of 89
02- 917
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which procedures shall be subject to the review and approval
by the City Manager. A Subscribe or City resident who has
. not been satisfied by following the procedures of the Licensee
may file a written complaint with the office of the City
Manager, who shall investigate the matter and, in consultation
with the Licensee as appropriate, attempt to resolve the
matter. The good faith or lack thereof of the Licensee in
attempting to resolve Subscriber and resident complaints in a
fair and equitable manner shall be considered in connection
with the renewal Application of the Licensee. Licensee shall
maintain a complete list of all complaints not resolved within
three (3) calendar days of receipt and the measures taken to
resolve those complaints. This list shall be compiled in a
form to be approved by the City. It shall be compiled on a
monthly basis. The list for each calendar month shall be
supplied to the City no later than the 15th day of the next
month. Licensee shall also maintain a list of all complaints
received, which list shall be provided to the City within
three (3) calendar days of request by the City Manager or
designee, as part of an inquiry by the City regarding
Licensee's compliance with this Section. Licensee's failure
to comply with this subsection shall result in a fine in the
amount of Five Hundred Dollars ($500) per violation, per day
or part thereof that the violation continues.
(m) Licensee shall permit the City designee to inspect
and test the technical equipment and facilities of the System
upon reasonable notice not to be less than seventy-two (72)
• hours, except in an emergency. Licensee's failure to comply
with this subsection shall result in a fine in the amount of
Five Hundred Dollars ($500) per violation, per day or part
thereof that the violation continues.
•
(n) Licensee shall abide by the following requirements
governing communications with customers, bills and refunds:
(1) Each Licensee shall provide to Subscribers
written information in each of the following
areas at the time of installation, at least
once annually, and at any future time upon
request by the Subscriber:
(i) How to use the Cable Service;
(ii) Installation and service maintenance
Page 59 of 89
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policies;
(iii)All products and services offered;
(iv) Prices and service options;
(v) Channel positions of programming carried
on the System;
(vi) The procedures of the Licensee for the
receipt and resolution of customer
complaints, the address of the Licensee
and telephone number to which complaints
may be reported, and the hours of
operation;
(vii)The telephone number and address of the
City, and as required by County
ordinance, the County office designated
to handle cable complaints and inquiries
shall be printed on the back of the bill.
The information shall be placed so as to
not be confused with similar information
for Licensee or the County;
(viii)The availability and costs of a "lock-
out" device and other parental control
mechanisms;
(ix) The information of the Licensee,
collection, and disclosure policies for
the protection of the privacy of the
Subscriber.
(x) Licensee's failure to comply with this
subsection shall result in a fine in the
amount of Two Hundred Dollars ($200) per.
violation, per day or part thereof that
the violation continues.
(2) In addition, each Licensee shall provide
written notice in its monthly billing, at the
request of the City, of any events or public
service announcements. The City shall make
such a request in writing, with reasonable
Page 60 of 89
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notice prior to the mailing of any billing by
Licensee, such that Licensee's regular billing
cycle shall not be interrupted. City shall
. pay printing costs and incremental postage
expenses for said notices. Licensee's failure
to comply with this subsection shall result in
P fine in the amount of Five Hundred Dollars
($500) per violation, per day or part thereof
that the violation continues.
E�
1]
(3) Licensee bills shall be clear, concise and
understandable to Subscribers. Licensee's
failure to comply with this subsection shall
result in a fine in the amount of Two Hundred
Dollars ($200) per violation, per day or part
thereof that the violation continues.
(4) Credits for service shall be issued no later
than the next billing cycle of the customer
following the determination that a credit is
warranted. Licensee's failure to comply with
this subsection shall result in a fine in the
amount of Two Hundred Dollars ($200) per
violation, per day or part thereof that the
violation continues.
(5) A Licensee shall provide Subscribers, the City
Commission, and the City Manager with at least
thirty (30) calendar days advance written
notice of any changes in rates, charges,
Channel lineup, or initiations or
discontinuations or changes of service or
services offered over the Cable System
whenever practicable. Licensee's failure to
comply with this subsection shall result in a
fine in the amount of Two Hundred Dollars
($200) per violation, per day or part thereof
that the violation continues.
(o) Upon a Subscriber's request, a Licensee shall
provide a credit to the account of the Subscriber, prorated on
a daily basis, with a minimum of one (1) day, for any period
of two (2) hours or more within a twenty-four (24) hour period
during which a Subscriber experienced an interruption of
service or substantial impairment of service, whether due to a
Page 61 of 89
02- 917
System Malfunction or other cause within the Licensee's
control. No refunds shall be due for service interruptions
directly related to a rebuild, upgrade or routine maintenance •
of the Cable System which is planned, noticed properly to the
City and Subscribers, and occurs during a time other than
between 6:00 p.m. and 11:00 p.m. and lasts for four (4) hours
or less. Licensee's failure to comply with this subsection
shall result in a fine in the amount of Three Hundred Dollars
($300) per violation, per day or part thereof that the
violation continues.
(p) Billing.
(1) The first billing statement of the Licensee
after a new installation or service change
shall be pro -rated as appropriate and shall
reflect any security deposit.
(2) The billing statement of the Licensee must be
fully itemized, with itemizations including,
but not limited to, Basic and premium Service
charges and equipment charges. Invoices shall
also clearly delineate all activity during the
billing period, including optional charges,
rebates and credits.
(3) Any balance not received within ten (10)
calendar days after the due date may be
assessed an administrative charge not to
exceed the average actual fixed and variable
cost to administer a delinquent account,
subject to applicable Law, except that a late
charge of not more than Five Dollars ($5)
shall be presumed to comply with this
subsection. The charge shall appear on the
billing statement of the following month. In
the event it is determined that a Licensee has
assessed a late fee in violation of this
Section, Licensee shall pay to Subscribers
that amount which is ordered by a governmental
or judicial body which has properly asserted
jurisdiction. Subscribers shall not be
charged an administrative fee, a late fee or
otherwise penalized for any failure by the
Licensee, its employees, or contractors,
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02- 917
including failure to timely or correctly bill
the Subscriber, or failure to properly credit
the Subscriber for a payment timely made.
(4) The Licensee must notify the Subscriber that
payment can be remitted in Person at the
office of the Licensee in the City and inform
the Subscriber of the address of that office
where payment can be made.
(5) Licensee's failure to comply with this
subsection shall result in a fine in the
amount of Three Hundred Dollars ($300) per
violation, per day or part thereof that the
violation continues.
(q) Except as incident to a rebuild of the Cable System,
a Licensee may not substantially alter the service being
provided to a Subscriber (including by re -tiering,
restructuring a tier or otherwise) without the express
permission of such Subscriber, unless it complies with this
subsection.
(1) If a Licensee wishes to alter the service
being provided to a Subscriber (including by
re -tiering, restructuring a tier or otherwise)
in such a way that the Subscriber shall no
longer be able to obtain the same package of
services, then the Licensee must provide the
Subscriber with thirty (30) calendar days
notice of such alteration, explain the
substance and the full effect of the
alteration, and provide the Subscriber the
right within the thirty (30) day period
following notice, to opt to receive within the
same thirty (30) calendar days any combination
of services offered by the Licensee.
(2) Except as provided under applicable federal,
state, or local Law, no charge may be made for
any service or product which the Subscriber
has not affirmatively indicated, in a manner
separate and apart from payment of the regular
monthly bill, that the Subscriber wishes to
receive.
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(3) Licensee's failur= to comply with this
subsection shall result in a fine in the
amount of Three Hundred Dollars ($300) per
violation, per day or part thereof that the
violation continues.
(r) If the City reasonably questions a Licensee's
compliance with any provision of this Section, the City may
request that the Licensee certify in writing to the City,
based upon internal due diligence by the Licensee, that to the
best of knowledge of the Licensee it is in compliance with the
standards set forth in this Section; provided, however, that
the City specifically shall identify the performance of
Licensee that is questioned, and requests certification not
more often than semi-annually. At the request of the City, in
the event of a discrepancy between the reports provided to the
City pursuant to this Section and the certification required
herein, the Licensee shall submit such documentation as may be
required to demonstrate compliance with this Section. This
documentation shall be submitted within thirty (30) calendar
days of the receipt by the Licensee of the City's request.
s) Responsibility for the administration of this
Ordinance, and any License granted pursuant to this Ordinance,
and for the resolution of all complaints against a Licensee
regarding the quality of service, equipment malfunctions, and
related matters, including the authority to order refunds or
fines, is hereby delegated to the City Manager, who is
empowered, among other things, to settle, or compromise any
controversy arising from operations of the Licensee, on behalf
of the City, in accordance with the best interests of the
public. In cases where requests for service have been ignored
or in cases where the service provided is unsatisfactory for
whatever reason, the City Manager or designee, hereafter
referred to jointly as City Manager, shall have the power to
require the Licensee to provide service, if in the opinion of
the City Manager or designee such request for service is
reasonable. Any Person aggrieved by a decision of the City
Manager, including the Licensee, may appeal the matter to the
City Commission for hearing and determination. The City
Commission may accept, reject or modify the decision of the
City Manager. No adjustment, settlement, or compromise,
whether instituted by the City Manager or by the City
Commission shall be contrary to the provisions of this
Page 64 of 89
O N r V
Ordinance or any License agreement issued pursuant to this
Ordinance, and neither the City Manager nox the City
Commission, in the adjustment, settlement, or compromise of
any controversy shall have the right or authority to add to,
modify or delete any provision of this Ordinance or of the
License, or to interfere with any rights of Subscribers or any
Licensee under applicable federal, or state Law or private
contract.
(t) (1) In addition to the powers delegated in Section
11-18(s) above, the City Manager shall have
the authority to order credits from a Licensee
to individual cable Subscribers who have
submitted a written complaint to the City and
to assess fines against a Licensee for any
violation of this Ordinance or any License
issued pursuant to this Ordinance, which fines
shall be paid to the City.
(2) In ordering credits to cable Subscribers, the
City Manager shall be governed as set forth
throughout this Section, in which the refund
indicated is expressed as a percentage of the
monthly bill of the Subscriber. The credits
set forth are to be made on a per violation
basis with each day of a continuing violation
constituting a separate violation. The credit
ordered by the City Manager pursuant to this
Section shall not exceed 100 percent (100%) of
a monthly bill of the Subscriber, unless a
violation has continued at least 30 calendar
days from the date first reported to the
Licensee.
(3) The fines set forth in this Section are to be
assessed on a per violation basis, with each
day of a continuing violation constituting a
separate violation. Where a credit required
by this Section is not possible because
service has been terminated, Licensee shall
issue a refund to the former Subscriber for
the appropriate amount, provided that the
Licensee can locate the former Subscriber
after using reasonable efforts to do so.
Page 65 of 89
f- 917
(4) Prior to ordering any credit and/or assessing
a fine pursuant to this Ordinance, the City
Manager shall mail to the Licensee a written
notice, by hand delivery or certified or
registered mail, of the proposed credit and/or
fine, specifying the violation at issue. The
Lcensee shall have ten (10) calendar days
from the date of receipt of the written notice
to demonstrate the violation has been cured or
to file a written response to the notice of
the City Manager describing the plan to cure.
In the sole discretion of the City Manager, a
fine, credit or refund may be waived, if the
issue has been cured or the City Manager
believes the issue will be cured according to
the proposed plan. Written response of the
Licensee shall be signed by management level
personnel of Licensee and all statements
contained therein shall- be regarded as
material representations of the Licensee to
the City.
(5) Prior to ordering a credit,refund and/or
(6)
assessing a fine, the City Manager shall
consider any justification or mitigating
factor advanced in the written response of the
Licensee, including but not limited to rebates
or credits to the Subscriber or a cure of the
violation. The City Manager may, after
consideration of the response of the Licensee,
waive or reduce any proposed credit, refund
and/or fine. In the case of a complaint from
a single Subscriber or a violation of this
Ordinance or any License issued pursuant to
this Ordinance in which only a single
Subscriber has been affected, the City Manager
may not assess any fine if the Licensee has
reasonably resolved the complaint or cured the
violation within a reasonable time frame not
to exceed ten (10) calendar days. However,
said Subscriber may be entitled to a credit as
provided herein.
Subsequent to the notice of proposed credit,
refund and/or fine to Licensee and
Page 66 of 89
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•
(8) Intentional misrepresentation by a Licensee in
any response to a notice of proposed credit,
refund and/or fine, whether oral or written,
shall be considered a material breach of the
License Agreement, subject to a penalty of no
less than Five Thousand Dollars ($5,000) in
liquidated damages to the City, and shall be
grounds for License revocation.
(9) In addition to complying with the customer
Page 67 of 89
•
02- 91'7
consideration of the response of the Licensee,
if any, the City Manager may issue an
assessment of credit, refund and/or fine. The
•
credit, refund and/or fine shall be paid
within thirty (30) calendar days of written
notice to the Licensee. If said credit,
refund and/or fine is not paid by Licensee in
the next bill cycle or within such thirty (30)
day period, as the case may be, the City may,
at its discretion, withdraw immediately the
amount thereof from the Security Fund. Upon
such withdrawal, the City shall notify
Licensee of the withdrawal amount, after which
Licensee shall have ten (10) calendar days
from the date of such notice to deposit in the
Security Fund an amount sufficient to restore
the Security Fund to the amount specified in
the License Agreement. This credit, refund
and/or fine shall constitute liquidated
damages to the Subscriber and City for the
violation and the City may enforce payment of
the credit, refund and/or fine in any court
having jurisdiction. It is the intent of the
City to determine fines as a reasonable
estimate of the damages suffered by the City
and/or its Subscribers, whether actual or
potential, and may include without limitation,
•
increased costs of administration and other
damages difficult to measure.
(7) Licensee may appeal any decision of the City
Manager directly to the City Commission within
thirty (30) calendar days of notice of the
decision to the Licensee.
(8) Intentional misrepresentation by a Licensee in
any response to a notice of proposed credit,
refund and/or fine, whether oral or written,
shall be considered a material breach of the
License Agreement, subject to a penalty of no
less than Five Thousand Dollars ($5,000) in
liquidated damages to the City, and shall be
grounds for License revocation.
(9) In addition to complying with the customer
Page 67 of 89
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02- 91'7
C, c
service standards set forth in this Ordinance
or LTi any License issued pursuant to this
Ordinance, a Licensee shall, at minimum,
comply with all customer service standards
applicable to Cable Systems of the FCC and any
other applicable federal, state or county Law
concerning customer service standards,
consumer protection, and unfair or deceptive
trade practices.
(10) The City expressly reserves the right to
consider violations of the customer service
requirements in evaluating any renewal,
modification or transfers of any License
Agreement.
Section 11-19. Subscriber Privacy.
(a) A Licensee shall at all times protect the
privacy of all Subscribers to the full extent required by
Section 631 of the Cable Act, 47 U.S.C. § 551, and state
Law. A Licensee shall not condition Subscriber or other
service on the grant of permission of the Subscriber to
disclose information which, pursuant to federal or state
Law, cannot be disclosed without the explicit consent of
the Subscriber. No penalties or extra charges may be
invoked by the Licensee for a failure of the Subscriber
to grant consent.
(b) Unless otherwise permitted by federal or state
Law, neither the Licensee nor its agents or employees
shall, without the prior and specific written
authorization of the Subscriber involved, sell, or
otherwise make available for commercial purposes the
names, addresses or telephone numbers of any Subscriber
or Subscribers, or any information which identifies the
individual viewing habits of any Subscriber or
Subscribers..
Section 11-20. Discrimination Prohibited.
(a) No Licensee may in its rates or charges, or in
the availability of the services or facilities of its
System, or in any other respect, make or grant undue
preferences or advantages to any Subscriber, potential
Page 68 of 89
09- - 91'7
•
•
Subscriber, or group of Subscribers or potential
Subscribers, nor subject any such Persons or group of
• Persons to any undue prejudice or any disadvantage. A
Licensee shall not deny, delay, or otherwise burden
service or discriminate against Subscribers or users on
the basis of age, race, creed, religion, color, sex,
handicap, national origin, marital status, or political
affiliation, except for discounts for senior citizens,
the economically disadvantaged or disabled that are
applied in a uniform and consistent manner. A Licensee
may also offer bulk discounts to multiple dwelling
buildings to the extent such discounts are otherwise
permissible by Law.
(b) A Licensee shall not deny Cable Service to any
potential Subscriber because of the income of the
residents of the area in which the Subscriber resides.
(c) A Licensee shall not refuse to employ, nor
discharge from employment, nor discriminate against any
Person in compensation or in terms, conditions or
privileges of employment because of age, race, creed,
religion, color, sex, disability, national origin,
marital status, or political affiliation. The Licensee
shall comply with federal, state and local Laws and
regulations governing equal employment opportunities, as
the same may be from time to time amended.
• Section 11-21. Use of Streets.
(a) A Licensee shall, at all times, comply with
other applicable provisions of the City Code of the City
of Miami, or as such may hereafter be amended.
•
(b) Any pavements, sidewalks, curbing or other
paved area taken up or any excavations made by a Licensee
shall be done under the supervision and direction of the
City under permits issued for work by the proper
officials of the City, and shall be completed in such
manner as to give the least inconvenience to the
inhabitants of the City. A Licensee shall, at its own
cost and expense, and in a manner approved by the City,
replace and restore any such pavements, sidewalks,
curbing or other paved areas in as good a condition as
before the work involving such disturbance was done, and
Page 69 of 89
02- 917
shall also prepare, maintain and provide to the City's
Public Works Department full and complete plats, mars and •
records showing the exact locations of its facilities
located within the public Streets, ways, and easements of
the City. A construction plan with strand maps is
required thirty (30) calendar days prior to commencement
cf construction in a particular area.
(c) A Licensee shall, at its expense, protect,
support, temporarily disconnect, relocate, or remove, any
of its property when required by the City by reason of
traffic conditions, public safety, Street construction,
Street resurfacing or widening, change of Street grade,
installation or sewers, drains, water pipes, power lines,
signal lines, tracks, or any other type of municipal or
public utility improvements.
(d) A Licensee shall, on the request of any Person
holding a building moving permit issued by the City,
temporarily raise or lower its wires to permit the moving
of buildings. The expense of such temporary removal or
raising or lowering of wires shall be paid by the Person
requesting same, and the Licensee shall have the
authority to require such payment in advance, except in
the case where the requesting Person is the City or other
government agency, in which case no such payment shall be
required. The Licensee shall be given not less than five
(5) calendar days advance notice to arrange for such •
temporary wire changes.
(e) A Licensee shall upon notice to the City of not
less than seven (7) calendar days, emergency situations
excepted, have the authority to trim the trees or other
natural growth upon and overhanging the Streets so as to
prevent the branches of such trees from coming in contact
with the wires, cables and other equipment of the
Licensee, except that, at the option of the City, such
trimming may be done by it or under its supervision and
direction at the expense of the Licensee.
(f) A Licensee shall use, with the permission of
the owner, existing underground conduits (if applicable)
or overhead utility facilities whenever and wherever
practicable as determined by the City, provided that
nothing herein shall constitute a waiver of Licensee's
Page 70 of 89 0
obligations under other applicable sections of the City
Code. Copies of agreements between a Licensee aTid third
• party for use of conduits or other facilities shall be
filed with the City, provided that the Licensee shall
have the right to redact proprietary and confidential
information in such agreements as it pertains to
financial arrangements between the parties.
(g) All wires, cable lines, and other transmission
lines, equipment and structures shall be installed and
located to cause minimum interference with the rights 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 the Streets,
as may be consistent with this Ordinance and the License
Agreement.
(h) All safety practices required by Law shall be
used during construction, maintenance and repair of a
Cable System. A Licensee shall not place facilities,
equipment or fixtures where any gas, electric, telephone,
water, sewer or other utility facilities shall interfere,
or obstruct or hinder in any manner the various utilities
serving the residents of the City.
(i) A Licensee shall, at all times:
(1) Install and maintain its wires, cables,
• fixtures and other equipment in an
orderly and workmanlike manner and in
accordance with the requirements of
federal, state, county and City Laws, as
well as the South Florida Building Code
and Electrical Safety Ordinances and any
other applicable Building or Electrical
Safety Code, and all other applicable
rules, regulations, and orders, as they
may be hereinafter amended or enacted,
and in such manner that the installations
of the City shall not receive
interference.
is
(2) Keep and maintain in a safe, suitable,
substantial condition, and in good order
and repair, all structures, lines,
Page 71 of 89
o,F*1
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equipment, and connections in, over,
under, and upon the Streets, sidewalks, •
alleys, and public ways or places of the
City, wherever situated or located.
(j) On Streets where both electrical and telephone
utility wiring are located underground, either at the
time of initial construction of a Cable System or at any
time thereafter, the cable of a Licensee shall also be
located underground at the expense of the Licensee,
consistent with Chapter 54 of the City Code, as amended.
Between a Street and a residence of a Subscriber, the
cable of the Licensee must be located underground if both
electrical and telephone utility wiring are located
underground. The City shall encourage, to the extent
feasible, that the public utility and the Licensee
cooperate in opening of trenches and making such trenches
available to all parties with the understanding that the
costs of opening and refilling of such trenches would be
shared equally by all users of such trenches.
(k) In the event the use of any part of a Cable
System is discontinued for any reason for a continuous
period of six (6) months, or in the event such System or
property has been installed in any Street without
complying with the requirements of this Ordinance or a
License Agreement, or the License has been terminated,
canceled or expired, the Licensee, within thirty (30) .
calendar days after written notice by the City, shall
commence removal from the Streets of all such property as
the City may require.
(1) The City may extend the time for the removal of
equipment of the Licensee and facilities for a period not
to exceed one hundred eighty (180) calendar days, and
thereafter such equipment and facilities may be deemed
abandoned.
(m) In the event of*such removal or abandonment,
the Licensee shall restore the area to as good a
condition as prior to such removal or abandonment.
(n) All Licensee Cable System distribution devices to be
located on Streets or private City property shall be
installed, pursuant to City Code, in such a way as to
Page 72 of 89
02- 917
•
•
eliminate or minimize any potentially adverse impact. All
proposed locations shall be reviewed by the City Neighborhood
Enhancement Team (NET) to ensure compliance with these and all
other applicable policies and procedures relating to the
placement of distribution devices on Streets or City private
property. Proposed locations may require review and approval
by various City Departments, as appropriate.
(o) In no case shall distribution devices be placed in
the following locations:
(1) Within Scenic Transportation Corridors.
(2) Within Historical Preservation Districts.
(3) Within a specified 25 foot corner visibility
triangle.
(4) Within a specified 10 -foot driveway
visibility triangle.
(5) Within 15 feet of any fire hydrant, fire
callbox, police callbox, or other emergency
facility.
(p) The City may require that these distribution devices
located on Streets and City private property be installed with
the following:
(1) Landscaping.
(2) Visual screening.
(3) Fencing, barriers, or other security features.
When required, the Licensee shall ensure that all landscaping,
visual screening, fencing, barriers, or other security
features are compatible with the characteristics of the
surrounding landscape and architectural features and require
minimal maintenance. The City shall not unreasonably require
landscaping, visual screening, fencing, barriers, or other
security features that are inconsistent with the character of
the immediate area in which the distribution devices are to be
installed.
Page 73 of 89
02- 917
•( 0
Recognizing that even minimal landscaping, visual screening,
fencing, barriers, or other security features may be •
susceptible to overgrowth, disease, decay and disrepair, the
City shall require the Licensee to maintain and/or
repair/replace this landscaping, visual screening, fencing,
barriers, or other security features.
(q) Placement of distribution devices on City
private property shall conform to all City charter, Code,
and administrative requirements.
Section 11-22. Enforcement Remedies.
(a) In addition to any other remedies available at
Law or in equity, except as otherwise specifically
provided in this Ordinance, or in any License Agreement,
the City may impose a fine in the amount of Five Hundred
Dollars ($500) per violation per day or part thereof for
any violation of this Ordinance.
(b) In addition to any other remedies available at
Law or in equity or provided in this Ordinance or in any
License Agreement, the City may apply any one or
combination of the following remedies in the event a
Licensee violates this Ordinance, its License Agreement,
applicable State or Federal Law, or applicable local Law
or order:
(1) Revoke the License pursuant to the •
procedures specified in Section 11-25
hereof.
(2) In addition to or instead of any other
remedy, the City may seek legal or
equitable relief from any court of
competent jurisdiction.
(c) Before imposing any fine pursuant to this
Section or any other Section herein, the City shall give
Licensee written notice of the violation and its
intention to assess such damages, which notice shall
contain a specific description of the alleged violation.
Following receipt of such notice, Licensee shall have
thirty (30) calendar days to cure the violation, or to
reach agreement with City Manager or designee on a
Page 74 of 89 •
02- 917
•
program to cure the violation, and the City shall make
good faith reasonable efforts to assist the Licens-e-in
resolving the violation. If the violation is not cured,
or an agreement to cure is not reached, within that
thirty (30) day period, the City may collect all fines
owed, beginning with the date of the notice of violation
by the City, either by removing such amount from the
Security Fund or through any other means allowed by Law.
(d) In determining which remedy or remedies are
appropriate, the City shall take into consideration the
nature of the violation, the Person or Persons bearing
the impact of the violation, the nature of the remedy
required in order to prevent further violations, and such
other matters as the City determines are appropriate in
the public interest.
(e) Failure by the City to enforce any requirements
of a License Agreement or this Ordinance shall not
constitute a waiver of the City's right to enforce that
violation or subsequent violations of the same type or to
seek appropriate enforcement remedies.
(f) In any proceeding wherein there exists an
issue, properly noticed by the City pursuant to the terms
of this Ordinance, with respect to a Licensee's
performance of its obligations pursuant to this Ordinance
or a License Agreement, the Licensee has, throughout any
such proceedings and appeals thereof, the burden of proof
that said Licensee is in compliance with the terms of the
Ordinance. The City Commission may find a Licensee that
does not demonstrate compliance with the terms and
conditions of this Ordinance in default and apply any one
or combination of the remedies otherwise authorized by
this Ordinance.
Section 11-23. Renewal of License.
Renewal shall be conducted in a manner consistent
with Section 626 of the Cable Act, 47 U.S.C. 546. To the
extent such additional requirements are consistent with
applicable Law, the following requirements shall apply.
(a) Upon completion of the review and evaluation
process set forth in Section 626(a) (1) (2 ) of the Cable
Page 75 of 89
02- 91'7
Act, 47 U.S.C. 546, should that process be invoked, the
City shall notify the Licensee, by certified or •
registered mail that it may file a formal renewal
Application including a renewal proposal. The notice
shall specify the minimum information to be included in
the renewal Application and the deadline for filing the
Application, which shall be no earlier than thirty (30)
calendar days following the date of the notice.
(1) The' Application shall comply with the
requirements of Section 11-8 hereof and
provide the specific information
requested in the notice or such other
information as is designated by the City
in the notice requesting a formal renewal
proposal. If the Licensee does not
submit a formal renewal Application by
the date specified in the notice to the
Licensee by the City, given pursuant to
this subsection, the Licensee shall be
deemed not to be seeking renewal of its
License.
(2) Upon receipt of the formal renewal
Application, the City shall publish
notice of its receipt and make copies
available to the public. The City,
following public notice of no less than
ten (10) calendar days, may hold one (1)
or more public hearings on the renewal
Application.
(b) With regard to any renewal Application, in the
event a public hearing on such Application is held, or in
the event that the City Commission considers such
Application without a public hearing, the City Commission
shall either:
(1) Pass a resolution agreeing to renew the
License; or
(2) Pass a resolution that makes a
preliminary assessment that the License
should not be renewed; or
Page 76 of 89 .
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4D
(3) In the case of an
a resolution to
negotiations of a
informal proposal, pass
enter into informal
License Agreement.
(c) If a preliminary assessment is made that a
License should not be renewed, at the request of the
Licensee or on its own initiative, the City shall
commence a proceeding in accordance with Section 626(c)
of the Cable Act, 47 U.S.C. § 546(c) to address the
issues set forth in Section 626 (c) (1) (A) - (D) of the Cable
Act, 47 U.S.C. § 546 (c) (1) (A) - (D) . Any denial of a
proposal for renewal that has been submitted in
compliance with subsection (b) of § 546 shall be based on
one or more adverse findings made with respect to the
factors described in § 5.46 (c) (1) (A) - (D) , pursuant to the
record of proceedings under § 546(c). The City shall not
base a denial of renewal on a failure to substantially
comply with the material terms of the License under §
546 (c) (1) (A) or on events considered under -§ 546 (c) (1) (B)
unless the City has provided the Licensee with notice and
opportunity to cure, or in any case in which it is
documented that the City has waived its right to object,
or the Licensee gives written notice of a failure or
inability to cure and the City fails to object within a
reasonable time after receipt of such notice.
(d) Any request to initiate a renewal process or
proposal for renewal not submitted within the time period
set forth in Section 626(a) of the Cable Act, 47 U.S.C. §
546(a), or submitted within such time frame and the
parties agree that the informal process shall be first
initiated, shall be deemed an informal proposal for
renewal and shall be governed in accordance with Section
626 (h) of the Cable Act, 47 U.S.C. § 546 (h) . The City
may hold one (1) or more public hearings or implement
other procedures under which comments from the public on
an informal proposal for renewal may be received.
Following such public hearings or other procedures, the
City Commission shall determine whether the License
should be renewed and the terms and conditions of any
renewal.
(e) If the City Commission grants a renewal
Application, the City and the Licensee shall agree on the
terms of a License Agreement, pursuant to the procedures
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specified in Section 11-9 of this ordinance, before such
renewal becomes effective.
(f) If renewal of a License is lawfully denied, the •
City may acquire ownership of the Cable System or effect
a transfer of ownership of the System to another Person
upon approval of the City Commission. Any such
acquisition or transfer shall be at Fair Market Value,
determined on the basis of the Cable System valued as a
going concern but with no value allocated to the License
itself. The City may not acquire ownership of the System
while an appeal of a denial for renewal is pending in any
court pursuant to the Cable Act, 47 U.S.C. § 546(e).
(g) If renewal of a License is lawfully denied and
no appeal to a court is pending, and the City does not
purchase the Cable System or approve or effect a transfer
of the Cable System to another Person, the City may
require the former Licensee to remove its facilities and
equipment at the expense of the former Licensee. If the
former Licensee fails to do so within a reasonable period
of,time, the City may have the removal completed at the
expense of the former Licensee and/or surety.
Section 11-24. Transfer, Sale, and Assignment.
(a) No transfer, sale or assignment of any i,- erest
in a License shall occur without prior approval of the •
City.
(b) An Application for a transfer, sale or
assignment of any interest of a License shall meet the
requirements of Section 11-8 hereof, and provide complete
information on the proposed transaction, including but
not limited to details on the legal, financial, technical
and other qualifications of the transferee, and on the
potential impact of the transfer on Subscriber rates and
service. Except in the case of a pro forma Transfer -as
defined in Subsection 11-2(hh), the Application shall
provide, at a minimum, the information required in
Section 11-8 or such other information as is specified in
a License Agreement in lieu of the information required
in Section 11-8. In addition, the Applicant shall
provide to the City any and all information provided to
Miami -Dade County in connection with the Transfer.
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(c) An Application for appzoval of a pro forma
• Transfer of a License shall be considered granted on the
sixty-first (61") calendar day following the filing of
such Application with the City unless, prior to that
date, the City notifies the Licensee to the contrary. An
Application for approval of a pro forma Transfer of a
License shall clearly identify the Application as such,
describe the proposed transaction, and explain why the
Applicant believes the Transfer is pro forma. Unless
otherwise requested by the City within thirty (30)
calendar days of the filing of an Application for a pro
forma Transfer, the Applicant shall be required only to
provide the information required in subsections 11-
8 (e) (1) , ( 3) , (12 ) and (14 ) with respect to the proposed
transferee.
(d) In making a determination on whether to grant
an Application for a Transfer of a License, 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 License Agreement and this Ordinance and, if not, the
proposed commitment of the transferee to cure such
noncompliance; and whether operation by the transferee
would adversely affect Cable Services to Subscribers, or
otherwise be contrary to the public interest.
(e) No Application for a Transfer of a License
shall be granted unless the transferee, if the holder of
the License, agrees in writing to abide by and accept all
terms of this Ordinance, as amended, and the License
Agreement, and to assume all obligations and liabilities
of the previous Licensee, whether known or unknown, under
this Ordinance, as amended, and the License Agreement.
If such transferee will not be the holder of the License,
such transferee will sign an acknowledgement ensuring
compliance by the Licensee with the License Agreement and
the Ordinance. The City shall certify to Licensee, upon
request, all issues of Licensee's performance which are
known and pending.
(f) Subject to applicable Law, approval by the City
of a Transfer of a License does not constitute a waiver
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or release of any of the rights of the City under this
Ordinance or the License Agreement, whether aiising •
before or after the date of the Transfer.
Section 11-25. Revocation or Termination of License.
(a) A License may be revoked by the City Commission
for failure of the Licensee to construct, operate or
maintain the Cable System as required by this Ordinance
or the License Agreement, or for any other material
violation of this Ordinance or material breach of the
License Agreement. To invoke the provisions of this
subsection (a), the City shall give the Licensee written
notice, by certified mail at the last known address, that
Licensee is in material violation of this Ordinance or in
material breach of the License Agreement and describing
the nature of the alleged violation or breach with
specificity. If within thirty (30) calendar days
following receipt of such written notice from the City to
the Licensee, the Licensee has not cured such violation
or breach, or has not entered into a written agreement
with the City Manager or designee on a program to cure
the violation, or has not demonstrated that the violation
cannot be cured, the City may give written notice to the
Licensee of its intent to revoke the License, stating
reasons.
(b) Prior to revoking a License under subsection .
(a) hereof, the City Commission shall hold a public
hearing, upon no less than ten (10) calendar days written
notice to the Licensee, at which time the Licensee and
the public shall be given an opportunity to be heard.
Following the public hearing the City Commission may
determine whether to revoke the License based on the
evidence presented at the hearing, and other evidence of
record. If the City Commission determines to revoke a
License, it shall issue a written decision setting forth
the reasons for its decision. A copy of such decision
shall be transmitted to the Licensee.
(c) Notwithstanding subsections (a) and (b) hereof,
any License may, at the option of the City following a
public hearing before the City Commission, be revoked one
hundred twenty (120) calendar days after an assignment
for the benefit of creditors or the appointment of a
Page 80 of 89 0
02- 911
I
receiver or trustee to take over the
Licensee, whether in a receivership,
• bankruptcy assignment for the benefit
other action or proceeding, unless
hundred twenty (120) day period:
.7
�J
FJ
business of the
reorganization,
of creditors, or
within that one
(1) S,_ch assignment, receivership or
trusteeship has been vacated; or
(2) Such assignee, receiver or trustee has
fully complied with the terms and
conditions of this Ordinance and the
License Agreement and has executed an
agreement, approved by a court having
jurisdiction, assuming and agreeing to be
bound by the terms and conditions of this
Ordinance and the License Agreement.
(d) In the event of foreclosure or other judicial
sale of any of the facilities, equipment or property of a
Licensee, the City may revoke the License, following a
public hearing before the City Commission, by serving
notice upon the Licensee and the successful bidder at the
sale, in which event the License and all rights and
privileges of the License shall be revoked and shall
terminate thirty (30) calendar days after serving such
notice, unless:
(1) The City has approved the Transfer of the
License to the successful proposer; and
(2) The successful proposer has covenanted
and agreed with the City to assume and be
bound by the terms and conditions of the
License Agreement and this Ordinance.
(e) If the City revokes a License, or if for any
other reason a Licensee abandons, terminates or fails to
operate or maintain service to its Subscribers for a
period of six (6) months, the following procedures and
rights are effective:
(1) The City may require the former Licensee
to remove its facilities and equipment at
the expense of the former Licensee. If
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the former Licensee fails to remove
facilities and/or equipment within a •
reasonable period of time, the City may
have the removal done at the expense of
the former Licensee and/or surety.
(2) The City, by re3olution of the City
Commission, may acquire ownership, or
effect a transfer, of the Cable System at
an equitable price.
(3) If a Cable System is abandoned by a
Licensee, the City may sell, assign or
transfer all or part of the assets of the
System.
(f) Where the City has issued a License
specifically conditioned in the License Agreement upon
the completion of construction, System upgrade or other
specific obligation by a specified date, failure -of the
Licensee to complete such construction or upgrade, may
result in the revocation of the License as set forth in
this Section, unless the City, at its discretion and for
good cause demonstrated by the Licensee, grants an
extension of time.
(g) No adverse action against a Licensee may be
taken by the City pursuant to this Section except after a
noticed public hearing at which the Licensee is given an
opportunity to participate.
Section 11-26. Continuity of Service Mandatory.
(a) It is the right,of all Subscribers to receive
all available services requested from the Licensee as
long as all financial and other obligations to the
Licensee are satisfied.
(b) In the event of a termination or Transfer of a
License for whatever reason, the Licensee shall ensure
that all Subscribers receive continuous, uninterrupted
service regardless of the circumstances. The Licensee
shall cooperate with the City to operate the System for a
temporary period following termination or Transfer as
necessary to maintain continuity of service to all
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Subscribers. The temporary period shall not exceed
twelve (12) months without the written consent of the
• Licensee. During such period the Cable System shall be
operated under such terms and conditions as the City and
the Licensee may agree, or such other terms and
conditions that shall continue, to the extent possible,
the same level of service to Subscribers and provide
reasonable compensation to the Cable Operator.
(c) In the event a Licensee fails to operate the
System for seven (7) consecutive calendar days without
prior approval of the City or without just cause, the
City may, at its option, operate the System or designate
an operator until such time as the Licensee restores
service under conditions acceptable to the City or until
a permanent operator is selected. If the City is
required to fulfill this obligation for the Licensee, the
Licensee shall reimburse the City for all costs or
damages resulting from the failure of the Licensee to
perform, including City's costs for City Staff,
consultants and other professionals necessary to continue
operation of the System. Additionally, the Licensee
shall cooperate with the City to allow City employees
and/or City agents free access to the facilities and
premises of the Licensee for purposes of the Licensee of
continuing System operation. To the extent that revenues
are collected as a result of operation of the System
under this subsection, the City shall have the right to
collect License fees on such revenues subject to the
terms and conditions of this Ordinance.
Section 11-27.. Rates.
(a) Nothing in this Ordinance shall prohibit the
City from regulating rates for Cable Services to the full
extent permitted under federal Law, as it may be amended
in the future. The City reserves the right to implement
future legislation consistent with applicable Law, and to
petition the FCC for relief as may be permitted by Law.
(b) Any rate or charge established for Cable
Service, equipment, repair and installation shall be
reasonable to the public and, to the extent applicable,
in compliance with FCC guidelines. Where FCC guidelines
exist, Licensee's compliance with such guidelines shall
0 Page 83 of 89
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be considered reasonable. Upon written request from the
City or its agent, Licensee shall provide all requested •
data, records and documentation to show the
reasonableness of the rates so long as such requests
comply with FCC guidelines or other applicable Law.
(c) Should a Licensee desire to change any rate or
charge, it shall submit a written notice of the amounts
and effective date of such changes to the City Manager in
a manner consistent with Federal Communications
Commission cable rate regulation standards or other
applicable Law in effect at the time. Prior to the
implementation of a change in rates, the City may require
the Licensee to notify each Subscriber, by (1) placing an
announcement of not less than one quarter page in a
newspaper(s) of general circulation, or (2) via the Cable
System, or (3) through bill inserts, of the proposed rate
change and the date the new rates will be effective.
(d) A Licensee granted a License pursuant to this
ordinance may provide reasonable discount rates
consistent with Section 623(e)(1) of the Cable Act, in a
manner acceptable to the City, for qualified Subscribers
over 62 years of age and/or residing in government funded
housing pursuant to 42 U.S.C. 1437f.
Section 11-28. Area Wide -Interconnection.
(a) Upon request of the City, a Licensee shall •
interconnect with any or all other Cable Systems located
within the City or serving Subscribers within the City.
Interconnection of Systems shall be for the sole purpose
of permitting interactive transmission and reception of
public, government and education program material, and
may be done by direct cable connection, microwave link,
satellite, or other appropriate method, as mutually
agreed by the affected Cable Operators and approved by
the City Manager.
(b) Licensee 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 to facilitate the
construction and operation of the Interconnection link
and the equitable sharing of costs among the
Page 84 of 89 •
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participants. Licensee shall report to the City the
results of such negotiation no later than thirty (30)
calendar days after the date of receipt of request from
the City. Where Licensee owns the affected System,
Licensee shall report to the City on the timing and,
method of Interconnection within fifteen (15) calendar
days of receipt of the City's request.
(c) The Licensee may be granted reasonable
extensions of time to interconnect if the City finds that
(1) the Licensee 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.
Section 11-29. Performance Evaluation.
(a) The City may conduct periodic performance
evaluations of a Licensee as the City determines is
necessary. A Licensee shall fully cooperate with these
evaluations in good faith. Evaluation session shall be
properly noticed and open to the public.
(b) Topics which may be discussed at any evaluation
session may include, but are not limited to, Cable
Service; application of new technologies; Cable System
performance; Cable Services provided; programming
offered; Subscriber complaints; privacy; modifications to
License; judicial and FCC rulings; and the City or
Licensee rules; provided that nothing in this subsection
shall be construed as requiring the renegotiation of a
License.
(c) If the City implements a survey of cable
Subscribers in connection with a performance evaluation,
the City may require a Licensee to distribute a City
questionnaire to its Subscribers at Licensee's expense,
provided however that such distribution at Licensee's
expense shall not occur more than once every two (2)
years. The City shall provide a Licensee with no less
than four (4) months notice of its intent to implement a
survey as set forth herein. The City and a Licensee
shall cooperate and mutually agree on the content of such
a survey.
Page 85 of 89
02- 917
0( W
(d) Upon request and upon reimbursement of the
City's copying costs, the Licensee may receive copies of
all responses.
Section 11-30. Administration.
(a) The City Manager, either directly or through a
duly appointed designee, shall have the responsibility
for overseeing the day-to-day administration of this
Ordinance and License Agreements. The City Manager shall
be empowered to take all administrative actions on behalf
of the City, except for those actions specified in this
Ordinance that are reserved to the City Commission. The
City Manager may recommend that the Commission take
certain actions with respect to the License. The City
Manager shall keep the Commission updated of developments
in cable technology and provide the City Commission with
assistance, advice and recommendations as appropriate.
(b) Subject to federal and state Law, the City
Commission shall have the sole authority to regulate
rates for Cable Services, grant Licenses, authorize the
entering into of License Agreements, modify License
Agreements, renew or deny renewal of Licenses, revoke
Licenses, and authorize the Transfer of a License.
Section 11-31. Force Majeure.
In the event the performance of the Licensee of, or
compliance with, any of the provisions of this Ordinance
or the License Agreement is prevented by a cause or event
not within the control of the Licensee, such inability to
perform or comply shall be deemed excused and no fines or
sanctions shall be imposed as a result thereof, provided,
however, that Licensee uses all practicable means to
expeditiously cure or correct any such inability to
perform or comply. For purposes of this Ordinance and
any License Agreement granted or renewed hereunder,
causes or events not within the control of the Licensee
shall include, without limitation, acts of God, floods,
earthquakes, landslides, hurricanes, fires and other
natural disasters, acts of public enemies, riots or civil
disturbances, sabotage, strikes and restraints imposed by
order of a governmental agency or court. Causes or
events within- control of the Licensee, and thus not
Page 86 of 89
•
•
falling within this Section, shall include, without
limitation, the financial inability of the Licensee to
• perform or comply, economic hardship, and misfeasance,
malfeasance or nonfeasance by any of directors, officers,
employees, contractors or agents of the Licensee.
Section 11-32. Applicability.
This Ordinance shall be applicable to all cable
Licenses granted, renewed or transferred on or after the
effective date of this Ordinance, and shall apply to all
cable Licenses granted prior to the effective date of
this Ordinance, to the full extent permitted by state and
federal Law.
Section 11-33. Municipal Cable System Ownership Authorized.
(a) To the full extent permitted by Law, the City
may acquire, construct, own, and/or operate a Cable
System.
(b) Nothing in this Ordinance shall be construed to
limit in any way the ability or authority of the City to
acquire, construct, own, and/or operate a Cable System to
the full extent permitted by Law.
Section 11-34. Reservation of Rights.
(a) The City reserves the right to amend this
Ordinance as it shall find necessary in the lawful
exercise of its police powers.
(b) Any additional regulations adopted by the City
shall be incorporated into this Ordinance and complied
with by all Licensees within thirty (30) calendar days of
the date of adoption of such additional regulations
unless imposition of such regulations would be otherwise
prohibited by applicable Law or the regulation provides
for a longer time to comply.
(c) The City reserves the right to exercise the
power of eminent domain to acquire the property of the
Cable System of the Licensee, consistent with applicable
federal and state Law. Notwithstanding anything to the
contrary, this Section shall not enlarge or restrict the
0 Page 87 of 89
02- 917
exercise of eminent domain of the City except to the •
extent provided by applicable Law.
(d) The City shall at all times have the right,
upon reasonable notice and during normal business hours,
to examine records and to inspect the facilities of the
Licensee to the extent needed to monitor the compliance
of the Licensee with and performance under this Ordinance
and the License Agreement."
Section 4.All sections or parts of sections of the Code of the
City of Miami, all ordinances or parts of ordinances, and, all
resolutions or parts of resolutions in conflict herewith be and the
same are hereby repealed to the extent of such conflict.
Section 5.That all rates, fees, charges and financial
obligations previously accrued pursuant to the ordinances and
resolutions repealed pursuant to hereto shall continue to be due
and owing until paid.
Section 6.If any section, part of section, paragraph, clause,
phrase or word of this Ordinance is declared invalid, the remaining
provisions of this Ordinance shall not be affected.
Section 7.This Ordinance shall become effective thirty (30)
days after final reading and adoption thereof."
This Ordinance shall become effective as specified herein unless
vetoed by the Mayor within ten days from the date it was passed and
adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City
Commission or upon the effective date stated herein, whichever is •
later.
Page 88 of 89
02- 917
PASSED ON FIRST READING BY TITLE ONLY this
intra day of
. Febru " 2000.
PASSED AND ADOPTED ON SECOND AND FINAL READING BY TITLE ONLY
this
Rr_h _ day of y,,.,a 2000.
JOE CAROLLO, MAYOR
h accordance with Miami Code Sec. 2-36. since the Nater d.d rot frac!?tots, ct
.his leois!ation by s, rine it in the design=ed ps-fc :.)W
becomes effective with the elapse of ten (10) days f. -c;-,. tl-'- c: — L
regarding same, without the M.,ayor exercisi a
ATTEST: Walter Clerk
---------------
WALTER J. FOEMAN
CITY CLERK
APPROVED TO RM AND COCTNESS
W8
•
RCL:YMT
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Page 89 of 89
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