HomeMy WebLinkAboutR-00-0489J-00-504
5/30/00
RESOLUTION NO. 60— 4 9
A RESOLUTION OF THE MIAMI CITY COMMISSION,
with ATTACHMENT(S), AUTHORIZING THE CITY
MANAGER TO EXECUTE AN AGREEMENT, IN
SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE
CITY OF MIAMI AND MIAMI TELE -COMMUNICATIONS,
INC. ("MTCI"), A SUBSIDIARY OF AT&T
BROADBAND, LLC, TO GRANT A NON-EXCLUSIVE
LICENSE TO MTCI, PURSUANT TO CHAPTER 11 OF
THE CODE OF THE CITY OF MIAMI, FLORIDA, AS
AMENDED, FOR A PERIOD OF TEN (10) YEARS, FOR
THE RIGHT AND PRIVILEGE TO OWN, CONSTRUCT,
INSTALL, MAINTAIN, AND OPERATE,A CABLE SYSTEM
WITHIN THE CITY OF MIAMI.
WHEREAS, Miami Tele-Communications, Inc. ("MTCI") operates a
cable television system pursuant to Chapter 11 of the Code of the
City of Miami, Florida, as amended; and
WHEREAS, MTCI's cable television License expired on
November 18, 1996; and
WHEREAS, pursuant to Ordinance No. 11410, adopted
October 30, 1996, said License was extended to February 18, 1997;
and
WHEREAS, pursuant to Ordinance No. 11443, adopted
February 20, 1997, said License was further extended to
May 18, 1997; and
WHEREAS, pursuant to Ordinance No. 11504, adopted
May 22, 1997, said License was extended on a month-to-month
basis; and
7 A C 11 M,EIN TS)
cONTAINEED
CITY COMMISSION
MEETING OF
JUN- 8 2000
y.
WHEREAS, the City is considering renewal of the cable
television License granted to MTCI; and
WHEREAS, MTCI agreed to and the City has accepted
provisioned on the approval of this License Agreement, a
resolution of all outstanding legal_, technical, and financial
issues, in accordance with a binding offer from TCI, AT&T, and
MediaOne, dated February 12, 1999, which contained material terms
for inclusion in a new cable system, ordinance and an executed
license agreement;
NOW, THEREFORE, BE.IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI,' FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The City Manager is hereby authorizedl� to
execute an agreement, in substantially the attached form, between
the City of Miami and Miami Tele-Communications, Inc., a
subsidiary of 'AT&T Broadband, LLC, to grant a non-exclusive
license to MTCI, pursuant to Chapter 11 of the Code of the City
of Miami, Florida, as amended, for a period of ten (10) years,
�i The herein authorization is further subject to compliance with all
requirements that may be imposed by the City Attorney, including but not
limited to those prescribed by applicable City Charter and Code
provisions.
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for the right and privilege to own, construct, install, maintain,
and operate a cable system within the City of Miami.
Section 3. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor./
PASSED AND ADOPTED this 8th day of June , 2000.
JOE CAROLLO, MAYOR
In accordance with Miami Code pec. 2-36,since the Ma r did not indicate approval of
this legislation by signing it in the designaA plac provid said legislatio°
ow
becomes effective with the elapse of n (1 d f m the ate o Com n a
��.o
ding same, without the Mayor rcisi
ATTEST:
Walt sty clerk
WALTER J. FOEMAN
CITY CLE
APP ED F M RRECTNESS:/%
XTFATTORNEY DRO VILARELLO
462:RCL
If the Mayor does not sign this Resolution, it shall become effective at
the end of ten calendar days from the date it was passed and adopted.
If the Mayor vetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
7
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EXHIBIT A
THIS LICENSE AGREEMENT ("Agreement'') is made this day of
2000, by and between the CITY OF MIAMI (the "City")
and, MIAMI TELE -COMMUNICATIONS, INC. (" MTCI") a subsidiary of AT&T
BROADBAND, LLC;
Section 1. Definitions. Except as otherwise provided specifically
herein, the definitions in Chapter 11 of the City Code, as amended, shall
govern this License Agreement. In addition, the following definitions shall
apply:
A. "Ordinance" shall mean Chapter 11 of the Code of the City
of Miami, Florida, as may hereinafter be amended.
B. "Licensee" or " MTCI" shall mean Miami Tele-
communications, Inc., a Florida corporation, a subsidiary of AT&T Broadband,
LLC and its lawful and permitted successors, assigns and transferees pursuant
to Sections 34 and 35 of this Agreement and Section 11-24 of the Ordinance.
C. ''License Area " shall mean that territory within the
corporate limits of the City, those limits may change from time to time
through annexation or contraction, over which the terms of this Agreement
shall extend.
D. "Notice" to the Licensee shall be deemed effective upon
receipt. Notice to the City shall be effective upon receipt by the City
Manager, or his identified designee.
E. "Comparison Community" shall mean the ten (10) largest
cable franchises/Licenses, based on the number of Subscribers, which are also
owned and operated by the Licensee, its parent, Affiliates, or subsidiaries
in the United States.
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F. "Effective Date" shall mean the date upon which this
Agreement commences, as provided in Section 4 hereof.
G. " Cable System Improvements" shall mean technological
advances, Cable Services, Cable products, and System capacity, System
bandwidth and other related facility improvements collectively.
Section 2. Resolution of Outstanding Legal, Technical and Financial
A. MTCI has submitted a Remedial or Enhanced Maintenance Plan
to the City to cure alleged technical violations. Such Plan is attached
hereto as Exhibit 1 and is incorporated as a term of the License Agreement.
B. MTCI has committed to rebuild the Cable System to a 750 MHz
Cable System at a minimum, as described herein.
C. MTCI has agreed to waive its claim and deliver a release to
the City for the disputed Eight Hundred Twenty Five Dollars ($825,000)
arising from Resolution No. 88-711. This waiver and release shall constitute
a complete settlement of all outstanding amounts which MTCI may claim to have
from the City, up to and including the date of this Agreement.
D. In consideration of the City's consent to the change of
control of MTCI to AT&T, and in settlement of certain allegations of non-
compliance with the existing License Agreement, MTCI has agreed to pay the
City Two Million Five Hundred Thousand Dollars ($2,500,000) and provide a
one-time payment of Five Hundred Thousand Dollars ($500,000) in vouchers to
Subscribers as a resolution to alleged technical violations.
E. The vouchers required herein shall be redeemable for any
Cable Service offered by MTCI. The Licensee shall issue the vouchers to
Subscribers within ninety (90) calendar days of the Effective Date of this
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License. The time period during which the vouchers may be redeemed shall be
no more than twelve (12) months from the date of issuance. The amount of the
vouchers shall not be included in Gross Revenues for purposes of calculating
License fees due the City. The City and MTCI shall mutually agree on the
content of such vouchers where, at a minimum, the voucher program shall be
identified as a cooperative effort between MTCI and the City. The costs of
the vouchers, (i.e., printing and postage) shall be borne by MTCI and shall
not be deducted from the amount set forth in subsection D above.
F. MTCI has agreed to pay the City a one-time payment of Four
Hundred Thousand Dollars ($400,000) in a capital grant to the City.
G. The City agrees to accept the above in complete settlement
of all known outstanding claims with respect to violations by MTCI of its
existing License, up to and including the Effective Date of •this Agreement,
with the exception of technical violations which are the subject of the
Remedial Plan under Section 2A, and attached hereto as Exhibit 1.
H. MTCI agrees to cause the release from escrow, pursuant to
the Escrow Agreement attached hereto as Exhibit 2, the funds and the releases
and waivers referred to in subsection C, D and F above upon adoption by the
Commission of the Resolution approving this Agreement and MTCI's acceptance
of this Agreement.
I. MTCI shall not offset any of the costs and payments set
forth in this Section against License fees and the amounts shall not be
passed through to Subscribers.
Section 3. Grant of License. Subject to the terms of this Agreement
and Section 11-4 of the Ordinance, the City hereby grants Licensee a License
for the right and privilege to own, construct, install, maintain and operate
a Cable System within the License Area.
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Section 4. Term of License.
A. The License shall commence upon the date that the
Resolution approving this License is adopted by the Commission, provided that
the Licensee has provided the City the written acceptance required by Section
41, the proof of insurance required by Section 9, the security fund as
required in Section 11, and any and all payments due pursuant to Section 2 of
this Agreement. Failure to provide the written acceptance, the proof of
insurance, the security fund and the payments as required herein shall be
subject to Enforcement Remedies as set forth in Section 11-22 of the
Ordinance.
B. This License shall be for a period of ten (10) years unless
otherwise sooner terminated or otherwise extended in accordance with the
terms of -this Agreement.
Section S. Non -Exclusive License. The Licensee's right to use and
occupy the Streets and Rights -Of -Way shall be non-exclusive and subject to
Section 11-5 of the Ordinance.
Section 6. License Subject to Cable Act, State Law and City Code.
A. This Agreement is subject to and shall be governed by all
terms, conditions and provisions of the Cable Act, any amendments thereto,
and any other applicable provision of federal, state or local law of general
applicability, existing or hereafter adopted.
B. This Agreement is subject to and shall be governed by all
terms, conditions and provisions of the Ordinance, as it existed on the
Effective Date of this Agreement in addition to the terms, conditions and
provisions set forth in this Agreement.
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Section 7. Licensee Subject To Other Laws, Police Power.
A. Licensee is subject to and agrees to comply with all
generally applicable local, city, state and federal laws, ordinances, rules,
regulations and orders, existing or hereafter lawfully adopted.
B. The Licensee shall at all times be subject to all lawful
exercise of the police power of the City, and this Agreement- is not intended
to limit or expand the City's exercise of such power in any way.
Section 8. Reservation of Rights.
A. This License Agreement may be modified, after public notice
and hearing, to the extent required to comply with applicable federal, state
and local law of general applicability, or by mutual written agreement
between the City and Licensee.
B. The City reserves the right to acquire, purchase, own
and/or operate a Cable System to the extent permitted by applicable local,
state and federal law.
Section 9. Insurance.
A. Licensee shall obtain and maintain insurance of the types
and minimum amounts required in Section 11-10 of the Ordinance, as amended,
in such a manner as to comply with each and every requirement of that
Section.
B. The Licensee shall provide proof to the City of compliance
with this Section prior to the date of the Commission Resolution approving
the grant of the License. Should Licensee fail to provide the City with
proof of insurance as required herein, Licensee shall be subject to fines and
other remedies, including revocation of the License, pursuant to Section 11-
22 of the Ordinance.
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Section 10. Indemnification of the City. Licensee shall, at its sole
cost and expense, indemnify, hold harmless, and defend the City, its elected
or appointed officials, employees, committees and boards, in accordance with
Section 11-10 of the Ordinance.
Section 11. Security Fund.
A. In compliance with Section 11-11 of the Ordinance and
Section 4 hereof, Licensee shall provide the City a security fund of Two
Million Dollars ($2,000,000) in a letter of credit satisfactory to the City,
to ensure the faithful performance of all provisions of this Agreement, the
Ordinance, and all applicable local, state and federal law.
B. If forty five (45) calendar days after written notice from
the City and in accordance with the procedures set forth in Section 11-22 (c)
of the Ordinance, Licensee fails to pay to the City any fees or taxes due and
unpaid, or any liquidated damages owed pursuant to the Ordinance, or this
Agreement, damages, costs or expenses that the City has incurred by reason of
any act, omission or default of Licensee in connection with this Agreement or
the Ordinance, the City may immediately withdraw that amount, with interest
and any costs, from the security fund or make such equivalent claim against
the letter of credit or performance bond. Upon such withdrawal or claim, the
City shall notify Licensee in writing of the amount and date of the
withdrawal. Any action by the City Manager to draw upon the security fund
hereunder may be appealed to the City Commission for hearing and
determination, subject to the terms set forth in Section 38 of this Agreement
and the Ordinance.
C. within thirty (30) calendar days after written notice to
Licensee that an amount has been withdrawn by the City from the security
fund, Licensee shall deposit a sum of money sufficient to restore the
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security fund to its original amount. If Licensee fails to restore the
security fund to the original amount within that thirty (30) calendar day
period, the entire security fund, including any accrued interest, may be
forfeited, and/or such failure may be considered a material breach of this
Agreement and a material violation of the Ordinance, and shall be subject to
fines or other remedies pursuant to Section 11-22 of the Ordinance.
D. Where a letter of credit or performance bond is provided in
lieu of a portion of the security fund as provided for herein, Licensee shall
pay or cause to be paid to the City the amounts of all claims against said
letter of credit within thirty (30) calendar days after notice of such claim,
maintaining the guarantee at its original amount. If Licensee fails to pay
the City the amount of any claim within thirty (30) calendar days after
notice to the Licensee of the claim paid or fails to restore the letter of
credit to its original amount, such failure may be considered a material
breach of this Agreement and a violation of the Ordinance, and shall
constitute grounds for revocation of this Agreement or other enforcement
action by the City.
E. The. security fund, whether in the form of cash or as
provided by the letter of credit, shall become the property of the City in
the event the License is revoked. Licensee is entitled to a return of the
balance of the security fund that remains following any other form of
expiration of this Agreement, including denial of a renewal, provided that
there are no outstanding defaults or unpaid amounts owed to the City by
Licensee.
F. If the License terminates for reasons other than
revocation, any security fund, whether in the form of cash, letter of credit
or performance bond shall be maintained by the Licensee for one (1) year from
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the date of termination and the remaining fund shall be returned to Licensee
one (1) year from the termination date of this Agreement, provided there are
no outstanding defaults or unpaid amounts owed to the City by Licensee.
Section 12. Construction Bond. Licensee shall furnish a construction
bond in accordance with Section 11-12 of the Ordinance, prior to any Cable
System construction, upgrade, rebuild or other significant work in the
Streets or Rights -Of -Way. The construction bond in favor of the City shall
be in an amount of no less than Five Hundred Thousand Dollars ($500,000).
Licensee shall furnish the initial construction bond for the System rebuild
as required in Section 14 hereof, prior to the Effective Date of this
Agreement. Such bond shall be released by the City to the Licensee in
accordance with the City Code.
Section 13. Use of Streets; Use of Citv Private Propert
A. Licensee agrees at all times to comply with and abide by
all generally applicable provisions of the City Code, this License Agreement,
and state, local and federal law.
B. All Licensee Cable System distribution facilities and
equipment shall be installed and maintained pursuant to Section 11-21 of the
Ordinance.
Section 14. System Rebuild.
A. No later than September 1, 2001, Licensee shall have
substantially completed and activated the rebuilding and reconstruction of
its Cable System. Pursuant to Resolution #99-126, adopted February 16, 1999,
it is the Licensee's business plan to build a System that will pass
frequencies of at least 750 MHz and will be fully operational with a minimum
channel capacity equivalent to at least seventy-eight (78) analog Video
Channels; and will have activated two-way communications. The System will be
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fiber optic rich, and will use "fiber -to -the -node" technology. Each node
will serve approximately 500 Subscribers and will not exceed 750 Subscribers.
No more than six active electronic devices will be used in any cascade. The
Cable System will also be "scalable," which means that nodes can be split to
provide infinitely -expandable bandwidth as the needs of customers grow.
B. In the event Licensee fails to substantially complete said
rebuild and activate the System in the City, such that ninety percent (900)
of the City's Subscribers are provided the minimum Cable Services by the
dates specified in Subsection A above, then the Licensee agrees that the City
may impose fines not to exceed Two Thousand Dollars. ($2,000) per. day
beginning no later than September 1, 2001, after thirty (30) day notice to
Licensee and in compliance with other provisions of Section 11-22 of the
Ordinance, provided however, that the City may not impose a fine_if the
delay is a result of Force Majeure as defined in Section 11-31 of the
Ordinance. It is agreed that the aforestated fine represents a reasonable
estimate of the minimum damages suffered by the City and/or its Subscribers,
whether actual or potential, and shall be assessable against the security
fund as set forth in Section 11 of this Agreement.
C. Licensee agrees to submit to the City a construction plan
for rebuild of its existing Cable System, including maps, construction
schedules, and Street work and repair plans, as may be agreed to by the City
and Licensee, provided that upon contemplation of the rebuild the City shall
have a complete set of System maps and documentation.
D. Licensee shall submit to the City its planned cable
routing, work areas and pedestal/power supply locations on a node -by -node
basis during the rebuild construction process.
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E. During the construction, Licensee shall meet with the City
on no less than a monthly basis, or as otherwise agreed to between the City
and Licensee, to review the progress of the construction and to coordinate,
as may be necessary, to minimize disruption of the rights-of-way in the City.
F. Licensee agrees to provide reasonable notice to all
Subscribers of the Cable System upgrade or rebuild, through the use of door
hangers and over the Cable System prior to the initiation of construction.
G. Nothing in this Section shall prevent Licensee from
completing any upgrade or rebuild of the Cable System sooner than required in
this Agreement.
Section 15. Enhanced Maintenance.
At all times, prior to the completion and activation of the Cable
System in the entire License area pursuant to Section 14(A) herein, Licensee
hereby agrees to provide a program of Enhanced Maintenance in accordance with
the terms and conditions of the Remedial Plan set forth in Exhibit 1 attached
hereto and incorporated as a term of this Agreement.
Section 16. Minimum Facilities and Services.
A. At all times prior to completion of the System rebuild
required by Section 14 hereof, the Cable System of the Licensee shall, at a
minimum, provide at least sixty four (64) activated downstream video
programming channels.
B. Upon completion of the System rebuild required by Section
14 hereof, the Cable System of the Licensee shall comply with Section 11-13
of the Ordinance, and Section 14(A) hereof, and provide upstream Video
Channel capacity to the Licensee's headend from the locations required by the
City, and in the amount necessary to satisfy the PEG Access Channel
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requirements set forth in Section 11-15 of the Ordinance, and Section 19
hereof. Licensee shall provide such upstream capacity through return lines
from two (2) locations designated by the City to the headend.
C. Licensee's Cable System shall transmit to Subscribers any
stereo signals and any other form of advanced television signals received and
carried by the Cable System pursuant to applicable federal law.
D. Licensee shall take affirmative, economically feasible
steps to ensure maximum availability of the services and facilities of the
Cable System, including without limitation all PEG Access Channel services
and facilities, to handicapped persons, including hearing impaired persons.
Licensee shall comply fully with all applicable laws concerning disabled
persons, and shall indemnify and hold the City harmless from any suit, claim,
or demand against it for violation of such laws that arises from the action
of. Licensee, in providing or failing to provide services in conformity with
such laws.
E. Upon the request of the City, the Licensee shall lease to
the City, capacity equivalent to one (1) analog video Channel to collect data
from Subscribers for purposes including, but not limited to, a fire, police
or other alarm system, or reading water meters, to the extent such capability
is available. Such lease shall be on terms and conditions no less favorable
than those offered by Licensee to any other third party, including but not
limited to any other licensing/franchising authority or community, served by
the same System, pursuant and subject to Section 11-13(a)(9) of the
Ordinance. The Licensee shall allow the City to co -locate necessary
equipment with the Cable System and to interconnect such equipment into the
Cable System, provided said equipment does not interfere with the technical
integrity of the Cable System. Any other lease of capacity by the City on
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the System shall be upon mutually agreeable terms and conditions.
F. The Licensee and the City recognize that the Cable System
authorized by this Agreement may serve other areas of Florida from a common
headend. As a result, Licensee shall provide the City and its Subscribers,
during the term of this Agreement, with at minimum comparable services and
benefits which are provided to any other area which are served by the Cable
System within a reasonable time after providing those services elsewhere, but
in no event to exceed one (1) year.
G. When one of the following conditions precedent is met,
Licensee agrees to enter into good faith negotiations with the City to
provide non-discriminatory access to its cable modem platform by requesting
Internet service providers and on-line service providers, irrespective of
whether such providers are affiliated with the Licensee. Negotiations will
include, but not be limited to, the following items: the timetable for
implementation, the method of implementation, including rates to be charged
to• such providers, identification of additional service providers, the
process by which such provider(s) will be afforded access to the Cable
System, any impact_ on Subscriber rates, and any impact on Licensee's
operations. The parties agree that such negotiations shall commence within
ten (10) calendar days of the occurrence of any of the following conditions
precedent and that if the parties cannot reach agreement on the terms of such
provision within sixty (60) days, the City reserves its right to prescribe
such requirement. Such requirement would be effective upon enactment, unless
such action was based on a court decision as provided in subsection 3 below,
in which event such requirement will not be effective until such court
decision is final, with no appeals remaining.
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1. Licensee or any Affiliate agrees with a licensing
authority to provide non-discriminatory access to its broadband Internet
access transport services to unaffiliated Internet service provider(s) in any
of its Cable Systems;
2. Upon final and non -appealable order of the FCC
imposing a requirement on Licensee or any of its Affiliates to provide non-
discriminatory access to its broadband Internet access transport services to
unaffiliated Internet service provider(s) in any of its Cable Systems;
3. Upon entry of a final and non -appealable judgment of
a decision in federal court with jurisdiction over the License Area, which
judgment upholds the imposition of a requirement on Licensee or any of its
Affiliates to provide non-discriminatory access to its broadband Internet
access transport services to unaffiliated Internet service provider(s) in any
of its Cable Systems.
H. Neither City nor Licensee have waived any rights,
obligations, claims, defenses or remedies regarding the City's authority to
impose the conditions set forth in Subsection G above.
Section 17. Institutional Network.
Licensee shall pay a capital grant to the City of Miami, as set
forth in Section 19 (B) of this Agreement, for an institutional network as
required by Section 11-13 (g) of the ordinance. The City shall use such
grant to purchase equipment for the City, including, but not limited to,
cable modems, termination equipment, routers, hubs, firewalls and other
security features.
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Section 18. Technological Improvements to System.
A. Throughout the term of this Agreement, compliance with this
Section shall be deemed compliance by the .Licensee with Sections 11-13 (b)
and 11-14 of the Ordinance, including, without limitations, the State -of -the -
Art requirements set forth therein.
B. Most Favored Nations.
1. Within sixty (60) calendar days after the third,
sixth, and ninth anniversaries of the Effective Date of this Agreement, the
Licensee shall submit a report to the City in a form reasonably satisfactory
to the City Manager, discussing Cable System Improvements offered on Cable
Systems in the Comparison Communities. The report to be provided hereunder
shall satisfy the Licensee's specific obligation to provide a compar"ison of
technological advances under Sections 11-17(b)(1) and 11-17(i) of the
Ordinance.
2. If such Cable System Improvements are not being
offered to Subscribers in the City, but are being offered to any Subscribers
in four (4) of the Comparison Communities, the City may require the Licensee
to provide such additional Cable System Improvements to Subscribers in the
City.
3. No such Cable System Improvements may be required on
the System except after a public hearing before the City Commission. The
City shall give the Licensee no less than thirty (30) calendar days written
notice of its intention to require such Cable System Improvements, which
notice shall contain a description of the Cable System Improvements. Based
on the comments of the public and the Licensee, the City must determine that:
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(a) the additional Cable System Improvements are
economically consistent with allowing the Cable System a reasonable
likelihood of being operated on a reasonably profitable basis over the
remaining term of the Agreement, taking into consideration FCC rules
regarding amortization of capital equipment and similar costs, and rates of
return, as they may exist on the Effective Date of this Agreement;
(b) the additional Cable System Improvements will
serve the community needs and interests of Subscribers, local institutions,
local programmers and other customers interested in Cable Services in the
City;
(c) the additional Cable System Improvements are
needed to meet the future cable -related community needs and interests, taking
into account the costs associated with those needs and interests.
4. Upon the determination by the City pursuant to
subsection 3 above, the Licensee shall make any and all such Cable System
Improvements available to all Subscribers in the City on a commercially
reasonable basis, taking into account deployment times in the Comparison
Communities, but in no event later than six (6) months from written notice by
the City, or as otherwise agreed to by the City and the Licensee.
5. 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 Two Thousand Dollars ($2000) per violation, per day,
or part thereof that the violation continues.
Section 19. PEG Access Channels and Facilities.
A. Access Channel Capacity. Licensee shall provide to the
City, PEG Access Channels in accordance with Section 11-15 of the Ordinance.
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Or
Licensee shall obtain services to cablecast City events as required by
Section 11-15(e) of the Ordinance, at the lowest rate available, which rate
shall be charged to the City for events required by the City.
B. Access Facilities, Equipment and Support.
a. Licensee shall provide a capital grant for PEG and
Institutional Network support (as specified in Section 17 hereof) to the City
in the amount of $800,000. Licensee shall pay $400,000 (equal to fifty (50)
percent of the total amount) within thirty (30) calendar days of the
Effective Date and such amount shall not be passed through to the Subscriber
Base as defined in Section 11-2(ff) of the Ordinance. Licensee shall pay
$400,000 (equal to fifty (50) percent of the remaining total amount) within
sixty (60) calendar days of a written request from the City of Miami and such
amount may be added to the price of Cable Services and collected from the
Subscriber Base as " external costs," as such term is used in 47 C.F.R.
§76.922. The City may request that such amount be passed through to the
Subscriber Base over one or more years, not to exceed ten years or the
remaining franchise term, whichever is less. Additionally, all amounts
passed through to the Subscriber Base may be separately stated on the
Subscriber's bills as permitted pursuant to 47 C.F.R. §76.985. All portions
of the grant shall be used for capital costs for PEG and I -NET support in
accordance with Section 622 (g) (2) (C) of the Cable Act and Section 17 of this
Agreement.
b. Starting with the first quarter of the City fiscal
year beginning October 1, 2000 and after notification from the City pursuant
to subsection c, Licensee shall pay quarterly, within thirty (30) calendar
days of the start of the quarter, to the City a grant not to exceed one
dollar ($1) per Subscriber, as calculated using the Subscriber Base
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definition in Section 11-2(ff) of the Ordinance, per month for PEG capital
support. Of the one dollar ($1), the first $.50 shall not be passed through
to the Subscriber Base; with respect to the second $.50, this charge may be
added to the price of Basic Cable Services and collected from the Subscriber
Base as "external costs", as such term is used in 47 C.F.R. §76.922.
Additionally, all amounts passed through to the Subscriber Base on a per
month basis may be separately stated on such Subscribers' bills as permitted
pursuant to 47 C.F.R. §76.985.
C. The actual amount of the per Subscriber, per month
charge shall be determined 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 this Agreement.
d.. Licensee agrees that the facilities, equipment,
monetary grant, and all other support to be provided by a Licensee pursuant
to Section 11-15 of the Ordinance and this Section, 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) , and that such grant
does not constitute a License fee or tax within the meaning of Cable Act,
state Law, Code of Ordinances of the City of Miami, or this Agreement; and
that the Licensee shall waive, and will not assert in any proceeding, any
claim to the contrary; nor shall any such support be treated as an external
cost to be passed through to Subscribers, except as provided herein or with
respect to Section 11-15(e) of the Ordinance.
e. Licensee shall ensure that cablecasts originated from
the Licensee's central production facility or any remote location shall be
State -of -The -Art and of sufficient quality and performance specifications to
Page 17 of 31
enable all material cablecast on the Access Channels provided pursuant to
this Agreement to meet all video and audio signal quality standards adopted
by the FCC when transmitted downstream to Subscribers, including any such
standards as may be adopted or amended by the FCC during the term of this
License Agreement. The Cable System shall provide comparable video and audio
signal quality to the programming provided by the Cable System on any non -
basic tier channel. It is understood that Licensee shall be responsible for
maintaining its transmission equipment in good repair and operational
condition at all times, at its own expense.
Section 20. Service to Public Buildings. Licensee shall continue to
provide Cable Service pursuant to Section 11-13(a)(4) of the Ordinance.
Licensee shall comply with section 11-13(a)(5) of the Ordinance by providing
access to an on-line service provided by the Licensee to parks, community
centers, and day care centers. at a discounted rate of no less than twenty-
five percent (250) of the retail rate.
Section 21. Service to Schools.
A. Licensee shall provide service to schools in the City in
accordance with Section 11-13(a)(6) of the Ordinance, and as provided herein.
B. Licensee shall make arrangements for each school to receive
school materials, to the extent available, for teachers that explain the
educational applications of the broadband Cable System and services offered
on the Cable System. The materials will be provided to all connected schools
at no cost.
C. Licensee shall, upon request, provide schools 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 will receive at
Page 18 of 31
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minimum one (1) free cable modem which will be allowed to be networked to no
less than three (3) computers and free, unlimited access to the on-line
service of Licensee or its parent, Affiliate or subsidiary at each school.
All services requested will be provided, not later than one (1) year after
Licensee makes commercially available an on-line service for personal
computers within a particular rebuild area in the City. Additional cable
modems and operational support and services (for example, assisting schools
in setting up and maintaining reliable Internet connections), will be
provided to connected schools upon request and paid by such schools to
Licensee at the actual and direct costs of Licensee. In addition, Licensee
will sponsor local workshops in each region to educate teachers about its on-
line service and to provide connected schools with an opportunity for hands-
on training.
D. The costs related to these Subsections A -C shall not be
offset against License fees or passed through to Subscribers, except as
otherwise provided in C above.
Section 22. Commercial Leased Access. Licensee shall provide
commercial leased Access Channels as required by applicable law.
Section 23. Emergency Use of Facilities.
A. Licensee shall at minimum comply with all FCC rules on
emergency use of facilities.
B. Licensee shall provide equipment and facilities necessary
to comply with Section 11-13(a)(8) of the Ordinance.
Section 24. Lock -out Devices. Licensee shall make available at
reasonable charge to any residential Subscriber, upon the request of such
Subscriber, a "parental guidance" or "lock -out" device which shall permit
the Subscriber, at his or her option, to eliminate the audio and visual
Page 19 of 31
transmissions from any channel reception to the extent technically feasible.
Section 25. Closed -Circuit Captioning for the Hearing Impaired.
Licensee shall make available at a reasonable charge to any hearing-impaired
residential Subscriber, upon the request of such Subscriber, any equipment
beyond the Subscriber's equipment capable of decoding closed-circuit
captioning information for the hearing impaired.
Section 26. Line Extension Policy.
A. Licensee shall, throughout the term of the License, provide
all Cable Services distributed over the System to any Person at his or her
place of residence or commercial location within the City pursuant to Section
11-13 of the Ordinance.
B. Notwithstanding the above, Licensee shall be required to
provide Cable Service to the areas of Watson Island, the Port of Miami and
Virginia Key, provided those areas exceed the density requirements of twenty
(20) Subscribers per aerial mile and thirty-five (35) Subscribers per
underground mile, and subject to a line extension of no less than three
hundred (300) feet. Cable Service may be made available within these areas,
if not meeting the density and line extension requirements, on the basis of
Subscribers' pro rata capital contribution and aid of construction not to
exceed Licensee's direct cost of the labor and materials required for the
extension of its cable plant.
Section 27. Cable Home Wiring Commitments. Licensee shall comply with
all FCC rules regarding cable home wiring, as amended from time to time.
Section 28. License Fee.
A. Licensee shall pay to the City a License fee pursuant to
Section 11 -16(a -h) of the Ordinance.
Page 20 of 31
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B. Licensee expressly agrees that: (i) the License fee
payments to be made pursuant to this Section shall not be deemed to be in the
nature of a tax; (ii) such License fee payments shall be in addition to any
and all taxes of a general applicability and not applicable solely to cable
television operations within the City or other fees or charges which Licensee
shall be required to pay to the City or to any state or federal agency or
authority, as required herein or by law, all of which shall be separate and
distinct obligations of Licensee; (iii) Licensee shall not have or make any
claim for any deduction or other credit of all or any part of the amount of
said License fee payments from or against any of said City taxes or other
fees or charges of general applicability which Licensee is required to pay to
the City, except as agreed herein or required by law; (iv) Licensee shall not
apply nor seek to apply all or any part of .the amount of said License fee
payments as a deduction or other credit from or against any of said City
taxes or other fees or charges of general applicability, each of which shall
be deemed to be separate and distinct obligations of Licensee; (v) Licensee
shall not apply or seek to apply all or any part of the amount of any of said
taxes or other fees or charges of general applicability as a deduction or
other credit from or against any of its License fee obligations, each of
which shall be deemed to be separate and distinct obligations of Licensee;
and (vi) the License fee specified herein is the minimum Fair Market Value
for the grant hereunder of a License for use of the Streets or Rights -Of -Way,
including all public easements, public rights-of-way and other entitlement to
use, occupy or traverse public property, for the purpose of operating a Cable
System.
Page 21 of 31 q� _ 89
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Section 29. Reports and Records. Licensee shall furnish the City with
all of the information as required under Section 11-17 of the Ordinance.
Licensee hereby expressly agrees to implement and maintain such practices and
procedures as may be necessary to comply with said obligations.
Section 30. Right to Inspect Financial Records and Facilities.
A. Licensee shall maintain a complete set of books and
records, including plans, contracts, engineering, accounting, financial,
statistical, customer and service records as required under Section 11-17 of
the Ordinance, for a period of not less than seven (7) years from the
Effective Date hereof.
B. The City shall have the right to inspect, upon reasonable
notice, at a location in: Miami -Dade County, such books and records of the
Licensee as may be required by the City to perform its regulatory
responsibilities, in accordance with Section 11-17 of the Ordinance, or
applicable law.
C. The City shall accord all books and records that it
inspects under this Section the degree of confidentiality such books and
records are entitled to under federal and state law. Licensee's books and
records shall not constitute public records, except to the extent required by
federal and state law. To the extent 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 claim of protection.
Section 31. Customer Service Requirements. Licensee agrees to comply
with, and to implement and maintain any practices and procedures that may be
Page 22 of 31
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required to monitor compliance with each of the customer service requirements
set forth in Section 11-18 of the Ordinance, and as such requirements may be
amended pursuant to applicable law.
Section 32. City Purchase of Cable System. The City may, upon the
recommendation of the City Manager and the approval of the Commission,
acquire ownership of and operate Licensee's Cable System in accordance with
Section 11-25 of the Ordinance.
Section 33. Modification of License. Licensee shall file an
Application with the City for any modification of its License pursuant to
Section 11-25 of the Ordinance.
Section 34. Transfer of License. Licensee shall file an Application
to transfer its License or to change control of Licensee or its System in
full compliance with Sections 11-8 and 11-24 of the Ordinance, provided that
any Application filed for a transfer, other than a pro -forma transfer, shall
only include the information required by Section 35 below and Section 11-
8(e)(1-5 and 12) of the Ordinance.
Section 35. Procedures for Requesting Approval of Transfer. In
addition to the requirements set forth in Sections 11-8 and 11-24 of the
Ordinance, and subject to Section 34 above, the following procedures shall be
followed by Licensee in requesting the City's consent to transfer its License
or to transfer control of Licensee.
A. At least one hundred twenty (120) calendar days prior to
the contemplated effective date of a transfer, Licensee shall submit to the
City a completed Application for approval of the transfer. The City may for
good cause reduce such time period. Such Application shall include the
following:
Page 23 of 31
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a. A statement of the reason for the contemplated
b. The name, address and telephone number of the
proposed transferee.
C. A detailed statement of the corporate or other
business entity organization of the proposed transferee, including but not
limited to the following:
(1) A detailed and complete audited financial
statement of the proposed transferee for the three (3) fiscal years
immediately preceding the date of the request for transfer approval, 'prepared
by a certified public accountant if audited statements were made, or -a letter
or other acceptable evidence in writing from a duly authorized officer of the
proposed transferee setting forth a clear and accurate description of the
amount and sources of funding for the proposal transaction and its
sufficiency to provide whatever capital shall be required by the proposed
transferee to construct, install, rebuild, maintain and operate the proposed
System in the City. If the corporate or business entity organization of the
proposed transferee has not been in existence for a full three (3) years, the
proposed transferee shall submit a certified financial statement for the
period of its existence.
(2) A description of all previous experience of the
proposed transferee in operating Cable Systems and providing Cable Services
or related or similar services, including a statement identifying, by place
and date, any other cable television Licenses or franchises awarded to the
proposed transferee, its parent, subsidiaries, or Affiliates in the State of
Florida; the status of said Licenses or franchises with respect to the
Page 24 of 31 �,
capacity of the System, the anticipated completion date, and any pending
legal action.
(3) Upon request from the City and if such pro
forma financial plan has been prepared, a detailed pro forma financial plan
describing for each remaining year of the License, the projected number of
Subscribers, rates, all revenues, operating expenses, capital expenditures,
depreciation schedules, income statements, and statement of sources and uses
of funds. Where the transfer is part of a larger transaction and such
information is not prepared for the single System in the City, the proposed
transferee may provide such information on a consolidated basis including the
System in the City, but shall provide information on the size of the City
System, in terms of number of Subscribers, relative to the transaction, so
that pro rata estimates may be made.
(4) A detailed description of the proposed plan of
operation of the proposed transferee, which shall include, but not be limited
to the following:
i. A detailed map indicating all new areas
proposed to be served, a proposed time schedule for the installation of all
equipment necessary to become operational throughout the new areas to be
served.
ii. For informational purposes a statement or
schedule setting forth all proposed classifications of Subscriber rates and
charges for each of any said classifications, including installation charges,
service charges, special, extraordinary, or other charges.
d. Upon request, the terms and conditions of the
Agreement between the transferor and proposed transferee relating to the
operation of the Cable System in the City
Page 25 of 31
e. A statement of acceptance signed by a duly authorized
officer of the proposed transferee, if such transferee will be the holder of
the License, of all of the terms and conditions of the Ordinance, and this
Agreement. If such transferee is not the holder of the License, such
transferee will sign an acknowledgement ensuring compliance by the Licensee
with this Agreement.
f. A statement of acceptance of all liabilities arising
under the existing License whether, known or unknown.
g. A plan of compliance to cure violations of the
Ordinance, and this Agreement.
Section 36. Renewal of License. The provisions of Section 11-23 of
the Ordinance shall govern any and all proceedings to renew this License. If
either Licensee or the City decides to initiate a formal renewal process in
accordance with Section 626(a) -(g) of the Communications Act, 47 U.S.C. §
546(a) -(g), both the Licensee and the City must comply with each of the
requirements in the Communications Act as well as the additional requirements
set forth in Section 11-23 of the Ordinance.
Section 37. Rates.
A. The City shall regulate rates for Cable Services,
installation, disconnection, and equipment rental and sales to the full
extent permitted by state and federal law, pursuant to Section 11-27 of the
Ordinance.
B. Pursuant to Section 11-27 of the Ordinance, Licensee shall
at all times charge nondiscriminatory rates throughout the City, as defined
by applicable law.
C. The Licensee shall submit a letter to the City within
thirty (30) calendar days of the Effective Date of this Agreement describing
Page 26 of 31
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discounts, consistent with Section 623(e) (1) of the Cable Act.
Section 38. Enforcement Remedies.
A. In addition to any other remedies available at law or
equity, except as otherwise specifically provided in this Agreement, the City
may impose fines for any violation of the Ordinance, or this Agreement,
and/or other remedies, pursuant to Section 11-22 of the Ordinance.
B. Revocation or Termination of License. This License is
subject to revocation pursuant to Section 11-25 of the Ordinance, for any of
the reasons set forth therein.
Section 39. Area Wide -Interconnection. Upon request of the City,
Licensee hereby agrees to interconnect with other Cable Systems in accordance
with Section 11-28 of the Ordinance.
Section 40. No Opposition.
A. By execution of this Agreement, the Licensee accepts and
agrees to comply with each provision of this Agreement and, subject to
Section 6 herein, the Ordinance. Furthermore, the Licensee acknowledges and
accepts the legal right of the City to grant the License, to enter into this
Agreement and to enact and enforce laws, ordinances and regulations related
to this Agreement. Licensee agrees that the Agreement was granted pursuant
to processes and procedures consistent with applicable law, and that it will
not raise any claim to the contrary, or allege in any claim or proceeding by
the Licensee against the City that any provision, condition or term of the
Ordinance or this Agreement at the time of the acceptance of the Agreement
was unreasonable, arbitrary, or inconsistent or that at the time of the
acceptance of the Agreement any such provision, condition or term was void or
that the City had no power or authority to make or enforce any such
provision, condition or term.
Page 27 of 31
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B. If any part, section, subsection, or other portion of this
Agreement or any application thereof to any Person or circumstance is
declared void, unconditional or invalid for any reason, such part, section,
subsection, or other portion, or the prescribed application thereof, shall be
severable, and the remaining provisions of this Agreement, and all
applications thereof not having been declared void, unconstitutional or
invalid, shall remain in full force and effect. The City declares that no
invalid or prescribed provision or application was an inducement to the
acceptance of this Agreement, and that it would have accepted this Agreement
regardless of the invalid or prescribed provision or application.
C. Nothing herein shall limit the ability of Licensee to
otherwise exercise its First Amendment right in pursuit of a change in
generally applicable federal, state or local law.
Section 41. Written Notice of Acceptance. Prior to the date of the
Commission Resolution approving the grant of this License,` Licensee: shall
provide the City Manager with (1) written acceptance of all the terms and
conditions of this Agreement, and (2) all payments due to the City pursuant
to Section 2 hereof. Licensee's failure to comply in full with this Section
shall render this Agreement and the License null and void with no further
action by the City, unless the City agrees in writing to extend such period.
Section 42. Grant of Other Licenses. If the City enters into a
license, permit, authorization or other agreement of any kind with any other
Person or entity other than .the Licensee to enter into the City's rights-of-
way for the purpose of constructing or operating a Cable System or providing
Cable Service to any part of the City in which Licensee is providing Cable
Service under the terms and conditions of this Agreement or is required to
extend Cable Service to under this provisions of this Agreement, the material
Page 28 of 31
provisions thereof shall be reasonable comparable to those contained herein,
in order that one operator not be granted an unfair competitive advantage
over another, and to provide all parties equal protection under the law. If
Licensee believes that the City has entered into a License, permit,
authorization or other agreement that does not comply with the provisions of
this Section, it shall provide notice to the City of those provisions that it
does not believe are reasonable comparable. Upon receipt of such notice, the
City agrees to either modify the authorization granted to such other person
or entity or to enter into good faith discussions regarding the validity of
the Licensee's claim. If the City determines that the Licensee's claims are
valid, it shall either enter into good faith negotiations to modify the
affected provisions of the License Agreement in accordance with this Section
or modify the authorization granted to such other person or entity. If.the
City determines that the Licensee's claims are not valid, Licensee shall have
all remedies available to it under applicable law to challenge such
determination.
Section 43. Notice. Any notice, request, demand, approval or consent
given or required to be given under this Agreement shall be in writing and
shall be deemed as having been given when mailed by United States registered
or certified mail (return receipt requested), postage prepaid, to the other
parties at the addresses stated below or at the last changed address given by
the part to be notified as hereinafter specified:
(a) If to MTCI: Director of Franchising
MTCI
1306 NW 7th Avenue
Miami, F1. 33136
Page 29 of 31
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With a copy to: Legal Department
AT&T Broadband, LLC
9197 South Peoria Street
Englewood, Co. 80112
(b) If to City: City Manager
City of Miami
Miami Riverside Center
444 S.W. 2nd Avenue, 10th Floor
Miami, FL 33130
City Attorney
City of Miami
Miami Riverside Center
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
Telecommunications Administrator
City of Miami
Miami Riverside Center
444 S.W. 2nd Avenue, 5th Floor
Miami, FL 33130
Section 44. Approval By Oversight Board. The State of Florida has
appointed an Emergency Financial Oversight Board (the "Oversight Board''),
which is empowered to review and approve all pending City of Miami
agreements. As a result, this Agreement shall not be binding on the City
until such time as it has been approved by the Oversight Board. Attestation
of this Agreement by the City Clerk shall constitute evidence of approval by
the Oversight Board.
Section 45. Execution in Counterpart. This Agreement may be executed
in counterpart.
Page 30 of 31
IN WITNESS WHEREOF, the parties hereto have executed or caused this agreement
to be duly executed as of the day and year first above written.
ATTEST:
WALTER FOEMAN, CITY CLERK
APPROVED AS TO INSURANCE
REQUIREMENTS:
MARIO SOLDEVILLA
RISK MANAGEMENT ADMINISTRATOR
CITY OF MIAMI, a Municipal
Corporation of the State of Florida
BY:
CARLOS A. GIMENEZ, CITY MANAGER
MIAMI TELE -COMMUNICATIONS, INC.
BY
TITLE:
DATE:
Page 31 of 31
APPROVED AS TO FORM AND
CORRECTNESS:
ALEJANDRO VILARELLO
CITY ATTORNEY
/fl o --
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EXHIBIT 1 4b
Miami TCI Remedial Plan
ONE
Problem: Improper levels at subscriber homes. Low levels on many channels and the
V/A ratio was not within specifications.
Clarification: At the time of the technical audit, we were in the middle of a major
headend project changing out all the modulators while simultaneously installing the EAS system
which requires interaction with the headend I.F. levels. As of December 18, 1998, the change -out
was completed and all levels were properly set.
Action: The Miami headend technician will set the RF levels and the V/A ratio
daily. A maintenance technician will be sent out to the same addresses that were previously
checked by auditor and verify correct levels and/or make system corrections.
Responsibility: . William Young/Jim Goins
Date Completed: Set headend levels daily beginning December 18, 1998. Checked levels at
system addresses, week of January 4-8, 1999. Jim Goins visited the identified addresses the week
of January 11-15, 1999, to verify the accuracy of the levels.
Further Action: Thorough evaluation of tap port levels to be done in conjunction with
monthly test point procedures. Purpose is to insure proper system balance and that all FCC and
TCI requirements are met. Jim Goins will work with system technical staff and develop a
schedule to proof all system extremities on a rotating basis. In addition, subscriber tap levels will
be evaluated by randomly checking tap levels in each of the 8 phases. Jim Gains will develop
random plan. Plans will be completed by February 8, 1999, and evaluation no later than February
28, 1999.
Results: Headend levels adjusted for proper Visual and Aural levels. Installed new
combiners and set all levels on spectrum analyzer. Checked tap levels in each phase. All tap
levels are generally sufficient having 6-10 dBmV out of a 100' lost drop. We still do not meet all
FCC specifications in 2 of the phases. One location requires the replacement of 3 spans of trunk
cable and the other location is undergoing maintenance analysis to determine the cause of high
end roll -off. An existing ongoing project to place fiber along this route will resolve the defective
trunk cable problem. Expect completion by the end of February.
TWO
Problem: No drawing of headend modulators/combining.
FAI999VNiamiV.otters\MLL-BindingOffer-Fina1.0212.wpdL 8 A
Clarification: At the time of the technical audit, we were installing now modulators and
now wiring; the Installation was not complete and we were working from the manufacturers
recommended drawings/levels, final drawing was not completed.
Action: Make new headend block diagram and headend combining drawing.
Responsibility: Whitney and Nestor Lee assisted by Jim Goins.
.Date Completed: January 15, 1999
Results: Drawings completed.
THREE
Problem: No drawing of the system trunk tree.
Clarification: Need a skeletal drawing of the trunk with streets and power supplies.
Action: Draw a trunk tree map from the cable system maps available.
Responsibility: William Young assisted by Bill Clark and verified by Bob Mackrell.
Date Completed: February 28, 1999
Results: Drawing did exist at the time of the technical audit. We were unable to
locate it. Has now been located. System maps have been reviewed and are available.
FOUR
Problem: System equipment weather proofing inconsistency.
Clarification: Notice was taken of the use of different types of weatherproofing. Over the
past years TCI has changed material and methodology used for weatherproofing as the
technology has changed. When we change to a new/improved type, we do not go back and
change the weatherproofing of the whole system. We simply go forward and use the improved
material/techniques as we repair/build new facilities. We recognize that abandoned cables are
lashed up with active plant throughout the system. This is standard procedure within the cable
Industry. We do not attempt to seal up the ends of the abandoned cable as there is not a need to
do so. The rebuild that is planned will take care of these problems that have accumulated over the
past years.
Action: None
Responsibility: N/A
F:\ 1999\Miam i\Lcncrs\MLL-BindingOffcr-Fina1.0212.wpd
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Date Completed: N/A
Further Action: Verify that all weatherproofing and other maintenance procedures are
being followed by the maintenance staff. Conduct training sessions for the technical supervisors
and the maintenance technicians for the purpose of making sure they are knowledgeable of the
requirements in the NESC regarding low -voltage communications cables. Assure that a proper
report procedure is set up to process any plant safety issues that are reported by the field staff.
Results: Completed.
FIVE
Problem: Power supply cut-off switch installation was inconsistent.
Clarification: The use of circuit breakers/cut-off switches between the meter base and
the power supply -box is Tegulated/controlled by the electrical permitting inspector/power
company. TCI hires licensed electricians to permit and install our power supply units and cannot
dictate electrical standards. Furthermore, electrical standards and the use of various cut-off
switches or other electrical interface devices have changed over the past years. TCI has no
authority to dictate such use.
Action: Licensed electricians have already inspected all of the power supplies for
code conformance.
Responsibility: N/A
Date Completed: Completed on December 30, 1998
Results: Third party electricians have completed 'the repair of all known power
supply discrepancies. All other power supply locations were inspected by TCI personnel and no
further discrepancies were found. Neither FP&L nor the local electrical codes require a cut-off
switch. It is possible that this was required in earlier years.
SIX
Problem: Lack of power meters at some power supply locations with active
electrical wires exposed.
Clarification: At some locations, power meters have been stolen or vandalized. Power
has been restored using wire jumpers inside the meter enclosure. These wires are exposed to the
public if the power supply locations are tampered with in the meter base. Also, same ground
wires are broken and ground wire molding is missing.
Action: An Inspection of 100% of the system power supplies for proper operation
and/or safety issues. Hire licensed electricians to correct all the problems with the meters,
F:\ 1999Wiami\Lcncrs\MLL-BindingOffcr-Fina1.0212.wpd
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Wiring, and molding. Then inspect supplies for proper operation. A system operational plan is to
be implemented to prevent future problems.
Responsibility: William Young and Bob Mackrell to verify proper operation and conduct
a random inspection of the power supplies the week of January 5, 1998.
Date Completed: Inspection - December 24, 1998. The operational plan to be completed by
January 19, 1998. William Young will work out a plan with FP&L for replacing power meters
that are stolen or vandalized.
Results: All safety issues have been resolved with no outstanding safety violations.
William is still discussing with FP&L about a going -forward procedure on the issue of stolen
meters.
SEVEN
Problem: Lack of headend level monitoring from the master headend at Dade-
Broward. This problem is a continuation of Problem 1 discussed above.
Clarification: We have what appears to be a terminology problem in this area. The
master headend staff can monitor and set satellite antenna receive levels, video baseband Ievels,
and audio baseband levels on most channels that are transmitted out of the Miami TCI headend.
These levels are monitored on a daily basis since they feed all of the TCI South Florida systems.
The baseband levels are chocked on a weekly basis.
The RF levels are set at the modulators at the Miami headend. These levels are normally adjusted
on a daily basis. During the time of the technical audit, major changes were taking place in the
Miami TCI headend. All existing modulators were being replaced by new, very high quality,
state-of-the-art modulators. In addition major rewiring was taking place to Install the federally
required EAS system. The RF levels had not been finalized during his visit. Setting RF levels is
such an important function in each headend that level setting and making evaluations of correct
levels is done at that headend.
Recent purchases of test equipment enable the Miami TCI headend technician to check all
baseband parameters at the headend site itself. This is to allow video analysis after the signals
have been modulated at the headend. In addition, one of the better spectrum analyzers is used at
the headend to set RF levels. All test equipment that is necessary to perform a complete
evaluation of video and audio signals is located at the Miami TCI headend.
In summary, baseband levels are checked at the downlink site, then transported over a digital
fiber link to the Miami headend. The baseband signals may be re-evaluated at that point If any
questionable levels are suspected, then modulated onto an RF carrier. The RF levels are set at
that time. Our procedure is set up this way because we believe this is much better than relying on
the master headend technicians to analyze RF levels after they have been transported through a
distribution system.
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To repeat, this whole scenario came about because of the extensive headend re -work taking place
at the time of the technical audit.
Action: None
Responsibility: N/A
Data Completed: N/A
EIGHT
Problem: FCC proof -of -performance package needs a statement that measurements
are in accordance with NCTA methodology.
Clarification: - - A more definitive statement was necessary in the FCC proof package,
clarifying the methods used to make proof measurements.
Action: Put an addendum page in the last proof saying that the proof was made `in
accordance with NCTA Recommended Practices for Measurements on Cable Television
Systems*. The header statement will say that this addendum was added on December _, 1998
to clarify all questions about measurements that might arise.
Responsibility: William Young
Date Completed: December 24, 1998.
NINE
Problem: Lack of a local emergency override system for the city to use.
Clarification: The City staff wants the option to override all video channels in case of a
local city -only emergency.
Action: Install a new phone line in the headend and connect up to the new Federal
EAS equipment that has recently been installed. Provide the city with the phone number and the
override code to allow authorized staff to perform such override.
Responsibility: William Young.
Date Completed: January 15, 1999. This will allow sufficient time for Bell South to install
the line.
Results: Completed.
F:\ 1999\Miami\Letters\MI-L-BindingOffer-Final,0212.wpd
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TEN
Problem: Lack of details about a rebuilt/upgraded system. Need more information
than just saying "a 750 system."
Clarification: Details of upgrade will not be known until the Market Assessment and
Engineering Analysis has been completed. Until that time TCI employees will not speculate on
what the upgrade will entail. Also, TCI employees cannot speculate on what Media One upgrade
plans might be.
Action: None
Responsibility: N/A
Date Completed: N/A
ELEVEN
Problem: Lack of batteries in some of the standby power supplies.
Clarification: Some of the standby supplies have defective batteries or no batteries in
situations where defective batteries have been removed and not replaced.
Action: Check all system power supplies and verify standby operation or note the
problem. This action has been completed and 27 batteries have been obtained from the TCI of
South Florida system to restore full standby operation.
Responsibility: William Young and technical staff.
Date Completed: December 24, 1998.
Results: Batteries are installed in all 199 power supplies at this time. Ten (10) out
of 199 power supplies are non -standby operational at this time due to inverter/charger failures.
The repair center has been consulted for repair advice on these defective units.
TWEL VE
Problem: Personnel safety and operational violations.
Clarification: Failure to properly use cones and hard hats, no ID badges worn while
visiting homes, no company shirt worn.
Action: Pertinent employee has been disciplined. On going safety meetings are
conducted twice weekly in this system with documented attendance.
Responsibility: William Young/Bonnie Lopez
F:\ 1999\Miam i\Lettcrs\MLL-B indingOffcr-Fina1.0212.wpd
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Date Completed: Completed on December 18, 1998.
Results: Completed.
THIRTEEN
Problem: I -Net maintenance is insufficient.
Clarification: The I -Net has 34 old Citation standby power supplies. Thirty-two (32) of
these 34 supplies are non -standby operational at this time. The system staff understands that the
City is financially responsible for any operational equipment expenses for the I -Net. From
comments by City staff, it appears that they believe TCI to be totally responsible for all expenses
incurred in the operation of the I -Net distribution system. We need guidance from TCI
management/legal on the scope of Miami TCI's responsibility.
Action: Bonnie -Lopez to contact Mark Hayes at Division for input and assistance
with this issue.
Date Completed: Open.
Results: N/A
FOURTEEN
Problem: Concerns about adequate cable drop ground wire at subscriber home.
Clarification: Concerns arose about the ground at 6 out of the 8 home visited.
Action: First, a TCI supervisor will visit the' 6 homes in question to verify or
gather complete details about the existing ground. Second, a training session with all field
employees to be held for the purpose of reviewing the procedure for grounding drops. Third,
ongoing drop inspections by technical supervisors will be conducted and procedural violations
will be cause for disciplinary action.
Responsibility: William Young/Bonnie Lopez
Date Completed: On-going inspections. Review of drop grounding practice to be conducted
by Bill Clark during the week of January 4, 1998 [sic].
Results: In-house QC inspections will immediately be increased from 3% to 10%.
In addition, an evaluation to determine the extent of improper grounds on a random system -wide
basis will be completed by the end of February. At that time, we will develop a plan of action to
make corrections if warranted. Otherwise, our training of existing field employees will be
accelerate in this area.
FA 1999\MiamiUxtters\hCL-BindingOffer-Fina1.0212.wpd
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0) 489
Additional Information:
1) A full-time headend technician is assigned to the Miami TCI headend.
2) A fly -over by an independent company that specializes in evaluation of leakage from a
cable system on January 12, 1999 found that the Miami TCI system scored 96.35%. This
is an excellent score in any cable system.
3) Regarding the failure of customer digital terminals, the failure rate is nominal and is
within Miami TCI expectations.
4) A 12 channel digital packet is transported on the cable system by using the equivalent
bandwidth of one NTSC video channel. This gives us the ability to serve the customer
with 12 digital channels in place of one analog channel. Miami TCI presently transmits 5
such digital packets on its system. Bandwidth cannot be compressed. Instead, the digital
packet is compressed by using MPEG techniques. This technique was innovated by TCI
and broadcast stations will be using such a technique within the next 2 years to broadcast
an auxiliary digital channel.
5) We do not have eight different cable systems. We simply split the trunk 8 ways at the
headend. This is a common design technique in many cable systems. It is used to isolate
any problems to the minimum number of customers as possible.
6) Our staffing for customer service representatives is at a level providing for sufficient
responses under normal operating conditions. Additionally, without adequate notice to
support the system audit, it created challenges affecting our day-to-day activities.
7) Five years of FCC proof -of -performance tests are available for inspection.
F\ I999\Miami\Letters\MLL-BindingOffer-Final.0212.wpd
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0'
EXHIBIT 2 1*
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement" or "this Escrow") is made and
entered into effective as of the day of , 1999 by and between MIAMI
TELECOMMUNICATIONS, INC. (hereafter "MTCI"), CITY OF MIAMI (hereafter "City"), and
GIBRALTAR BANK, F.S.B. (hereafter referred to as the "Escrow Agent");
WITNESSETH:
WHEREAS, MTCI has executed a letter dated February 12, 1999 ("Binding Offer") pursuant
to which MTCI will place certain assets in escrow for the benefit of the City; and
WHEREAS, placement of the assets in escrow is a condition to City's approval of the
change of control of the Miami Cable Franchise from TCI to AT&T;
NOW, THEREFORE, IN CONSIDERATION of the mutual and reciprocal promises and
agreements hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is hereby agreed as follows:
1. Defined Terms. Unless otherwise indicated herein, capitalized terms as used herein
shall have the same meaning assigned thereto by the Binding Offer.
2. Appointment of Escrow Agent. City and MTCI hereby appoint and designate
Gibraltar Bank as Escrow Agent for the purposes herein set forth, and Gibraltar Bank hereby accepts
such appointment and designation.
3. Deposit with Escrow Agent. Contemporaneously with the execution and delivery of
this Escrow Agreement, MTCI has deposited or caused io be deposited with the Escrow Agent the
sum of Two Million Eight Hundred Fifty Thousand Dollars ($2,850,000.00) in cash ("Escrow
Amount"), a Voucher Agreement outlining certain benefits for MTCI's customers, and a signed
EA I999VNizniAAgrcementsT-saow.0312. wpd
•
•
waiver and release as described in the Binding Offer (collectively the "Escrow Property"). The
Escrow Agent acknowledges receipt of the Escrow Property and agrees to accept, hold and disburse
the Escrow Property and all investment earnings thereon as a trust fund and in accordance with the
terms hereof.
4. Investment of Escrow Amount. The Escrow Agent shall invest all cash in the
following money market mutual fund: "Cash Trust Series II, Treasury Cash II" sponsored by
Federated Investors. This is a mutual fund for which the Escrow Agent provides services and
receives compensation from the fund sponsor at the annual rate of .35 of I% of the average net asset
value. Assets held in the Escrow Account shall be segregated from the assets of Escrow Agent.
Such assets do not form a part of the capital or debt of Escrow Agent and are not subject to the
claims of his creditors but are set apart and held for the exclusive benefit of the parties. The taxpayer
identification number of MTCI ( ) shall be provided and used by Escrow Agent as the
party responsible for any income tax on the interest earned on the Escrow Amount.
5. Disbursement of Escrow Amount.
(a) Upon City's adoption of a new Cable Ordinance ("Ordinance"), and MTCI's
execution of a renewed Franchise Agreement with .the .City, the Escrow Agent shall disburse the
Escrow Property in accordance with this Section..
(b) Upon satisfaction of the conditions set forth in (a) above, the City Manager
or his designee shall provide notice to Escrow Agent and MTCI by affidavit certifying that the
Ordinance has been lawfully adopted and the Franchise Agreement has been executed by the City
and MTCI. Upon receipt of such notice, MTCI shall have four (4) business days to object to the
release of the Escrow Property to the City. Thereafter, absent a timely objection by MTCI, the
CA 1999Vdianuingrcemcnts\Csc ro%v.0312. wpd 2
Escrow Agent shall release the entire Escrow Property to the City, except that any interest earned
on the Escrow Amount shall remain property of and be disbursed to MTCI.
(c) In the event Escrow Agent receives notice executed by a representative of
both of the parties that the condition(s) described in (a) above will not occur as contemplated by the
parties, the Escrow Agent shall return the Escrow Property with all accrued earnings to MTCI.
(d) In the event Escrow Agent receives a conflicting notice from the other party
disputing the release of the Escrow Property, or in the event that Escrow Agent receives notice of
a pending and unresolved dispute between the parties such that Escrow Agent is unable to determine
the disposition of the Escrow Propoerty, the Escrow Agent shall, at its discretion, either:
(i) continue to hold the Escrow Property until resolution of the
controversy by final and appropriate legal proceedings (unless otherwise directed by court order);
or,
(ii) obtain an Order, from the Court before which a controversy is
pending, providing for tender of the amount or other property subject to dispute into registry or
custody of the Court. Upon such tender by Escrow Agent, Escrow Agent shall thereupon be released
and fully discharged from all obligations to perform further duties or obligations imposed upon it
pursuant to this Escrow Agreement with respect to, the amount or other property so tendered, except
as the Court may order;
(iii) continue to hold the Escrow Property until he receives written
instructions executed on behalf of the City and MTCI, and disburses the Escrow Property or any
portion thereof in such manner as may be specified therein or continue to hold the claimed Escrow
Property, or any portion thereof, for such periods and subject to such instructions for disbursement
CA I999\M iam RAgreementsTscrow.0312. wpd
as may be specified therein.
(e) Notwithstanding the foregoing, Escrow Agent shall comply with any joint
written instructions signed by both the City and MTCI concerning disposition of the Escrow
Property.
6. Compensation. MTCI shall pay Escrow Agent an annual fee of Three Thousand Five
Hundred dollars ($3,500.00), payable upon execution of this Agreement and thereafter on each
anniversary date of this Agreement. The annual fee is not subject to proration.
7. Liability of Escrow Agent; Indemnification.
(a) In performing any of its duties under this Escrow Agreement, or upon the
claimed failure to perform its duties hereunder, Escrow Agent shall not be liable for damages, losses
or expenses which anyone may incur or claim to incur as a result of Escrow Agent's so acting, or
failing to act; provided, however, Escrow Agent shall be liable for damages, losses, and expenses
arising out of its intentional default or gross negligence under this Escrow Agreement. Accordingly,
Escrow Agent shall not incur any liability with respect to: (i) any action taken or omitted to be taken
in good faith upon advice of counsel given with respect to any questions relating to the duties and
responsibilities of Escrow Agent hereunder or (ii) any notice, directions, or instructions provided for '
in this Escrow Agreement, not only as to its due execution and to the validity and effectiveness of
its provisions, but also as to the `truth and accuracy of any information contained therein, which
Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by the
proper person or persons, and to conform with the provisions of this Escrow Agreement.
(b) Both parties hereby agree to indemnify and to hold harmless the Escrow Agent
EA 1999\1 iam W grccnicnts\Escrow.03 12. wpd 4
r 4S
against any and all losses, claims, damages, liabilities and expenses, including without limitation,
reasonable costs of investigation and counsel fees and disbursements which may be imposed upon
Escrow Agent or incurred by it in connection with its acceptance of this appointment as Escrow
Agent hereunder or the performance of its duties hereunder, including, without limitation, any
litigation arising from this Escrow Agreement or involving the subject matter hereof.
Notwithstanding the foregoing and any other provision herein to the contrary, Escrow Agent shall
bear and be responsible for all losses, claims, damages, liabilities and expenses resulting from its
intentional default or negligence under this Escrow Agreement.
(c) In the event of a dispute between the parties hereto and sufficient in the
discretion of the Escrow Agent to justify its doing so, Escrow Agent shall be entitled to tender into
the registry or custody of any court of competent jurisdiction money or property in its hands under
the terms of this Escrow Agreement, together with such legal proceedings as it deems appropriate,
and thereupon to be discharged from all further duties under this Escrow Agreement in respect of
the amounts so tendered, except as the Court may order. All such legal action may be brought only
in the jurisdiction of Miami -Dade County, Florida.
S. Successors and Assigns. This Escrow Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns. Escrow Agent shall
be bound only by the terms of this Escrow Agreement and shall not be bound by or incur any liability
with respect to the Binding Offer or any agreement or understanding between the parties except as
herein expressly provided. Escrow Agent shall not have any duties hereunder except those
specifically set forth herein.
9. Notices. All notices provided for in this Escrow Agreement shall be in writing and
EA 1999WiamilAgrecmausT-scrow.0312. wpd 5
shall be sent to the address for the recipient parties set forth below or to such other address as such
party has theretofore furnished in writing to the other party sending such notice:
(a) If to MTCI:
Michael D. Woods, Esq.
TCI Communications, Inc.
5619 DTC Parkway
Englewood, Colorado 80111-3000
(b) If to City:
Mr. Donald H. Warshaw, City Manager
Miami Riverside Center
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
Alex Vilarello, Esq.
City Attorney
Miami Riverside Center
444 S.W. 2nd Avenue, 9`h Floor
Miami, FL 33130
Mr. Peter Chircut, City Treasurer
Miami Riverside Center
444 S.W. 2"d Avenue, 9`h Floor
Miami, FL 33130
r
with a copy to:
Matthew L. Liebowirz, Esq.
Leibowitz & Associates, P.A.
One S.E. Third Avenue, Suite 1450
Miami, FL 33131
(c) If to Escrow Agent:
Gibraltar Bank, F.S.B.
200 S. Biscayne Blvd, Suite 2850
Miami, FL 33131
Any such notice shall be effective: upon delivery, if personally delivered; on the date of
[AI 999\MiamlAgrecments\Escrow.0312. wpd 6
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receipt if sent by telecopier; on the next business day following deposit, if deposited with a national,
overnight delivery, guaranteed delivery service, such as Federal Express or Airborne, with all
charges prepaid; upon receipt by the receiving party, if mailed by certified mail, return receipt
requested, all postage prepaid.
10. Counterparts. This Escrow Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of which shall constitute
one and the same instrument.
11. Governing Law. The validity and effect of this Escrow Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of Florida, and venue shall
be Miami -Dade County, Florida.
12. Headings. The headings in this Escrow Agreement are inserted for convenience and
identification only and are in no way intended to describe, interpret, define or limit the scope, extent
to intent of this Escrow Agreement or any provision hereof.
13. Severability. Each provision of this Escrow Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity, shall not affect the validity or enforceability of the remainder of this Escrow Agreement.
14. Entire Agreement. This Escrow Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter hereof.
15. Amendment. Except as otherwise expressly set forth herein, this Escrow Agreement
shall not be revoked, rescinded or modified as to any of its terms or conditions except by consent in
writing signed by all of the parties hereto.
C:11999UNiamilAgrccmcntsTscrow.03.12. wpd
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,ae-23-99 12:34 PM ; 2058778472;1 9/ 9
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3014183ZOT T-313 P-09/09 Job -364
IN wrll4ESS VIRU s0F, t1ue parties have eKeeuW air caused dis Agre+ecaar,t 1a be duly
examted as of the dsy aril year fent above w tittm -
M7'Ct:
M1AW T8MMUMNICAMONS, INC.
By:
TtCk; esi.deut
Date:
CTIY OF MIAMI
lay- a��
..
Title e-Ltz mer
Date: Warch 21. 1199
ESCROW A►GM:
CYIB A.LTA,R BANK F.S.B.
0
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO: The Honorable Mayor and DATE: JUN _ ' 2000 FILE
Members of the City Commission
SUBJECT: Resolution Authorizing
MTCI Cable System
License Agreement
FROM: me ez REFERENCES:
City Manager ENCLOSURES:
RECOMMENDATION:
It is respectfully recommended that the City Commission adopt the attached resolution
authorizing the City Manager to execute an agreement, in a form acceptable to the City
Attorney, with Miami Tele-Communications, Inc. (MTCI), a subsidiary of AT&T
Broadband, LLC, to grant a non-exclusive license to MTCI, pursuant to Chapter 11 of the
Code of the City of Miami, as amended, for a period of ten (10) years, for the right and
privilege to own, construct, install, maintain, and operate a cable system within the City
of Miami.
BACKGROUND:
The City of Miami has under consideration the renewal of its existing cable system
license agreement with MTCI, pursuant to the Communications Act of 1934, as amended,
47 U.S.C. para. 521 et seq. Miami Tele-Communications, Inc. ("MTCI") operates a cable
television system pursuant to Chapter 11 of the Code of the City of Miami, Florida, as
amended. MTCI's cable television License expired on November 18, 1996. This
License was subsequently extended to February 18, 1997, pursuant to Ordinance No.
11410, adopted October 30, 1996; extended further to May 18, 1997, pursuant to
Ordinance No. 11443, adopted February 20, 1997; and then finally extended on a month-
to-month basis, pursuant to Ordinance No. 11504, adopted May 22, 1997. MTCI has
agreed to and the City has accepted provisioned on the approval of this License
agreement, a resolution of all outstanding legal, technical, and financial issues, in
accordance with a binding offer from TCI, AT&T, and MediaOne, dated February 12,
1999, which contained material terms for inclusion in a new cable system ordinance and
an executed license agreement.
CAGB A(tcb
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