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HomeMy WebLinkAboutR-86-0746s' 777771 9/11/86 AGREEMENT THIS AGREEMENT, executed on the day of , 1986, by and between the CITY OF MIAMI, (hereinafter "City"), a Florida municipal corporation and MIAMI TELE-COMMUNICATIONS, INC. and AMERICABLE OF GREATER MIAMI, LTD., together doing business as MIAMI CABLEVISION, a joint venture, (hereinafter "Cablevision"). WHEREAS, the City and Cablevision have been unable to resolve ongoing disputes relating to the cable television is franchise granted to Cablevision pursuant to the provisions of the City of Miami Code of Ordinances; WHEREAS, the City and Cablevision, in an attempt to resolve the existing disputes; in an effort to avoid costly and lengthy judicial proceedings in response to differences in interpretation 1: of the provisions of the Cable Communications Policy Act of 1984, and in order to usher in a new spirit of joint cooperation, are hereby desirous of resolving the following issues: a) The benefit and control of Cablevision's cable jtelecommunications System known and described as the "Insti- tutional Network" (hereinafter ("INET"), consisting of 400 mhz. single cable mid -split two-way active institutional cable and related active and passive devices, connectors, components and all cables, facilities, pedestals and other personal property, tangible and intangible, related thereto. b) Outstanding fines against Cablevision by the City in the amount of $977,244.79. c) Contributions made pursuant to Section 406 of.the City of Miami Cable Television License Ordinance No. 9332 and allegedly owing and payable to the City by Cablevision to be used in the public interest in connection with the City's drug enforcement efforts and the development of plans for the use of the cable system to promote such efforts. d) Contributions made and allegedly owing and payable to the City by Cablevision pursuant to Section 405 of the License " ; t: ordinance for the development, implementation and use of the cable system's access services. e) The amount of money to be maintained in the Security Fund (presently $2 million) in order to ensure the faithful performance by Cablevision of all provisions of the license granted by Ordinance No. 9332. NOW, THEREFORE, in consideration of the sum of ten ($10.00) Dollars and other valuable consideration, the City and Cablevision wish to amicably resolve their differences and the parties hereto agree as follows: INET (1) Cablevision will execute a document, in sub- stantial accord with the document attached as Exhibit "A" entitled "Transfer By Gift of Miami Cablevision Institutional Network" granting full title and interest of Cablevision's INET system to the City. The transfer of the INET by Cablevision � and acceptance by the City shall be contingent upon the INET being completed, activated and y 3j maxi -proofed, including both forward and reverse 'r 4 paths, as set forth in ordinance No. 10035. ' TIME VALUE 15F MONEY (2) Cablevision shall be compensated by the City for the time value of money for license fees paid _ pursuant to Section 901 of the License Ordinance in the approximate amount of $2.6 million prepaid through June 30, 1984 as set forth in Ordinance No. 10035. The sum of the license fees paid during the term of the license may not exceed the amount, including the time value of coney, which would have lawfully been collected if such fees had been paid per annum. It is further agreed between the parties that the time value of money shall be the rate that the Cityearns on its invested liquid 9 r -2 P } FINES t' (3) _j. t funds. Cablevision shall continue to file quarterly license fee reports, utilizing a license fee which amounts to four (4%) percent of gross revenues, said amounts to be first deducted from all amounts credited from prepayments of license fees and, subsequent thereto, from any other amounts to be credited to Cablevision under this agreement, in accordance with the payment schedule in Section 902 of the License ordinance. All past and future interest earned by the City in regard to the prepayments shall be credited to Cablevision. Cablevision shall continue to file, quarterly franchise reports utilizing a franchise fee rate of four (0) percent, of gross revenue, which amounts shall be deducted from all amounts credited from prepayments of franchise fees and other amounts credited to Cablevision under this agreement. The City shall furnish to Cablevision a semi-annual accounting of all funds paid pursuant to Section 901 of the License Ordinance and Ordinance No. 10035. All fines alleged to be due and owing to the City by Cablevision shall be forthwith returned to the Security Fund and all notices of allegations for non-compliance relative to the cross -connections issue sent by the City will be held in abeyance as agreed upon by City and Cablevision's plan (Exhibit "C") to correct/modify all service cross -connections in accordance with the City's highway improvement program. Failure on the part of Cablevision to adhere to its plan shall result in the reimposition of fines in the amount of $977,244.79. -3- 77711 DRUG ENFORCEMENT MR-MUTIONS (4) Cablevision shall not seek the refund of $550,000 in contributions paid pursuant to Section 406 of the license ordinance to be used in the public interest in connection with the City's drug enforcement efforts and the development of plans for the use of the system to promote such efforts. The amount of $450,000 which Cablevision owes for payments through October 1, 1986 will be credited to the benefit of the City in the form of a deduction from the interest payable by City on prepaid license fees. Cablevision shall not be required to make any future payments required by Section 406. ACCESS PRWIMING CONTRINUMNS (5) City shall credit Cablevision in the amount of $1.65 million, with no interest, for contributions paid pursuant to Section 405 of the License ra x Ordinance. All past contributions alleged to be owing and due to the City shall be forgiven. SECURITY FUND (6) Since Cablevision has substantially completed. construction of the cable television system, the City shall immediately refund to Cablevision $5000,000, leaving a Security Fund of $1,500,000. The Security Fund shall be reduced to $1,000,000, in accordance with the criteria for completion of the cable television system as set forth in Section 1001 of Ordinance No. 10035, passed and adopted on September 12, 1985. This amount shall insure the faithful performance by Cablevision of all provisions of the license granted by Ordinance No. 9332. -4- (7) The parties hereto agree that Exhibit "B" attached hereto and made a part hereof shall constitute the amount of funds and contributions paid by Cablevision and existing balances pursuant to: ( a ) Section 901 -- license fees; (b) Section 405 access contributions; (c) Section 406 -- drug enforcement program contributions; (d) Section 1001 - Security Fund; and (e) Fines. (8) Cablevision agrees to indemnify and to hold they City harmless against all administrative and judicial proceedings which may arise over the provisions of this agreement. All attorneys' fees, costs and other expenses arising out of the defense of the terms of this agreement shall be borne solely by Cablevision. (9) This agreement, and exhibits thereto, shall embody the sole agreement amongst the parties as they relate to the issues contained herein. (10) This agreement shall be deemed a modification to the license issued by the City to Cablevision and shall be recorded in the public records. (11) This agreement shall not become effective until a financial and management audit of Cablevision has been performed by an independent consultant. The results thereof shall be reported to and found to be acceptable, and in conformity with accepted accounting and management principles and standards, by the City Manager not later than October 3, 1986. Cablevision retains the right to cancel this agreement at its option, and upon written notification to the City Manager of its intent to do same, not later than October 3, 1986. Cablevision shall cooperate fully during the per- -5- 4 KI intent to do same, not later than October 3, 1986. Cablevision shall cooperate fully during the per- formance of the audit and make available for inspection all booksr records and other materials relative to the operation of the cable television system. (12) Cablevision agrees to dismiss with prejudice all existing administrative and judicial proceedings which seek the interpretation of provisions of the Cable Communications Policy Act of 1984 and the legality and enforceability of its franchise, obligations pursuant to Ordinance No. 9332. Cablevision further covenants not to initiate or cause to be initiated any administrative or judicial proceedings wherein the legality and enforceability of its franchise obligations, or the provisions of the Cable Communications Policy Act of 1984 relative to its franchise obligations, STATE OP PLORIDA COUNTY OP DADE BEFORE ME, an officer duly authorized to administer oaths and take acknowledgments, personally appeared -6- and CHARLES HERMANOWSKI, respectively President of Miami Tele- Communications, Inc. and General Partner of Americable of Greater Miami, Ltd., said entities together doing business in a joint venture known as MIAMI CASLEVISION, and that said individuals, to' me well known to be the persons who executed the foregoing document, acknowledged before me, under oath, that they executed the same freely and voluntarily for the purposes therein expressed. WITNESS MY HAND AND OFFICIAL SEAL AT MIAMI, DADE COUNTY, ' EXHIBIT "A" TRANSFER BY GIFT ;t OF - NIANI CABLEVISION INSTITUTIONAL NETWORK --- KNOWN ALL MEN BY THESE PRESENTS, that Miami Tole -Communications, Inc., and Americable of Greater Miami, Ltd., together doing business as MIAMI CABLEVISION, a joint venture (the "Grantor"), hereby gives, grants, donates and conveys to the CITY OF MIAMI, a municipal corporation and a public body corporate (the "Grantee"), all of Grantor's right, title and interest in and to the following -described property of Grantor: 1. All of that portion of Grantor's cable telecommunications system known and described as the "Institutional Network," consisting of 400 mhz. single cable mid -split two-way active institutional cable and related active and passsive devices, connectors, components and all cables, facilities, pedestals and other personal property, tangible and intangible, related thereto; x 2. All licenses, easements, contracts and agreements relating to the installation and operation of said .; Institutional Network. 3. All proceeds of and from the use and operation of the Institutional Network, now or hereafter existing. 4. All accounts, contract rights, general �ff intangibles and other receivables of any kind, now or hereafter existing, arising out of or in connection with the sale, lease. } use or rendering of services from or by the Institutional Network. TO HAVE AND TO HOLD the said property under the full and complete ownership, control and operation of Grantee, its successors and assigns forever. Grantor warrants end represents to Grantee that Grantor is the lawful owner of said property. I. IN WITNESS WHEREOF, Grantor has hereunder set its hand and seal this ___ day of _. 1986. Signed and delivered MIAMI TELE-COMMUNICATIONS, INC. in the presence of the following witnesses: �.. By= President AMERICABLE OF GREATER MIAMI, LTD2. By. General Partner s STATE OF FLORIDA ) .ss COUNTY OF DADE ) I hereby certify that on this date, there personally appeared before me, an officer duly authorized to administer oaths and take acknowledgments, and Charles Hermanowski, respectively President of Miami Tele-Communications , Inc., and General Partner of Americable of Greater Miami, Ltd., said entities together doing business in a? joint venture known as Miami Cablevision, and that said individuals, to me well known to be the persons who executed the foregoing document, acknowledged before me that they executed the same freely and voluntarily for the purposes therein expressed. Witness my hand and official seal at Miami, Dade County, Florida, this day of June, 1986. Notary Public, State of Florida at Large 4S44D 0442386ANK 21817.0001 -2-P 1, it iIi t R EXHIBIT "B" FUND AMOUNT PAID EXISTIN Vi' License Fee $ 2,475,000- $ (511, Access Contribution 1,6509000 293189 Drug Enforcement 550jOOO 7289 ^ A^^ ^A^ I noo � I avanaa Fines 9779244.79 • EXISTING BALANCE: Amounts given are as of 6/30/86 License Fee existing balance includes transfer to general fund of $509,583 Security Fund existing balance includes deduction of $977,244.79 in fines. "R 8 6'7 10" 4615 IJ M, WHEREAS, the City of Miami, (hereinafter referred to as "City") pursuant to Ordinamoo No. 9332, granted a nonexdlusive license to Miami Tele-CobWnioations , Inc. and Americable of Greater Miami, Ltd. (hereinafter referred to as "Miami Cablevision" or "licensee") to use the streets, alloys, public ways and places of the City to erect, construct, operate and maintain a cable television system within the City; and WHERES, section 8Q8(b) of Ordinance No. 9332 requires A that all cables and wires be installed parallel to existing telephone and electric wires whenever possible; and WHEREAS, the City anticipates that it will rehabilitate an average of 12 miles of streets per year in accordance with its highway improvement progrEam; and WHEREAS, it is necessary to set forth the terms and conditions upon which Miami Cablevision will be required to correct/modify service cross -connections in accordance with the City's highway improvement program; NOW, THEREFORE, in consideration of the covenants and agreements herein contained, the following._t-terms and conditions are hereby incorporated into this MEMORANDUM OF UNDERSTANDING between Miami Cablevision, cable licensee and City this day of 1986 and so acknowledged and accepted: I. The City anticipates that it will rehabilitate an average of 12 miles of streets per year under the i ighway improvement program. Miami Cablevision shall *oorreet/modify seryice.eross-conneotions in these 12 miles of rehabilitated streets per year, beginning in 1986 and extending throughout the 11 years remaining In the license term, provided that in any year that the City rehabilitates less than 12 miles per year, the Company shall be required to correct service cross -connections only in the number of miles actually rehabilitated by the City. 2. If the City rehabilitates more than 12 miles of streets per year, the Company shall be required to eorreot/modify service cross-conneotions in no more than 12 miles of rehabilitated streets, provided that • the company must move its cables to the new utility poles as soon as the poles are available in all streets rehabilitated each year, so that the utilities can remove their old poles. The number of miles rehabilitated in excess of 12 miles in any given year shall be placed in a pool on a cumulative basis over the term of the license. In the last year of the term 3. 4. a. .r 8 . t { 7. of the license. • (1990), the Company shall oorreot/modify all servl,00 oross-oonnectl,ons In:* (a) the street miles Accumulated In the pool aced (b) the street miles rehabilitated by the City in 1996. By November 1.9," UW, the Company shall correct/modify serviced cross-caonneotions in the 90 miles Of streets already rehabilitated by the City. The City shall not approve aompl,eti,on of construction until. the Company has corrected/modified the service oross-connections .in._ the 90 miles and the City has approved such oorreotions/modifications. The modification policy described in paragraphs 1-3 above, shall apply only to areas where the .building density is 20 buildings per 600 feet, the length of an average City block. The Company ( shall correot/modify its plant as described in paragraphs 1-4 above, at its own expense. The Company trill be required to submit plans for modification on a block by block basis for approval by the City. The plans for modification of existing , plant shall include the following details: a) Date of submission of desig$ plans showing all subscriber drops for each geographical area for approval; b) Start-up date of modifications; o) Projected date of completion for each location; 2[�... Procedure by which service to subscribers in each geographic area vAl be transferred from the old to new section when applicable; e) Estimated cost to modify each location; f) Submission of as -built maps of each area with documentation of actual cost for each area. The Company must comply with the following construction standards: a)• All cables crossing roadways must be raised to • conform to the standards specified in the National Electric Safety Code. b) No cables or wires may be attached to "street light only" poles. c) All crossings must follow utilities' crossings. s: • dj Near easemeants gball be rased vhenaver available. It is understood that the terns and, conditions set forth r herein are in no way intended to obviate • waive or cancel any rights that City may be entitled to enforce under the pro4isions of City of Miami, CableTel"Vision License Ord.ixianoe No. 9332, as amended. The above terms and oonditions shall not constitute a new agreement as to the rights and obligations of City and lioensee under Ordinanoe No. 9332. 4; j ACKNOWLEDGED AND ACCEPTED: Charles C. Hermanowski i' Managing General Partner Miami Cablevision i. r, WITNESS f t J i7 86- 746 . _ t fi i CITY OF MIAMI. FLORIDA INTEROFFICE MKIVIORANDUM TO: Honorable Mayor and Members of the City Commission FROM, Cesar H. Odio City Manager 0 DATE: S E P 3 1988 fftgr SUBJECT: City Cable License REFERENCES: ENCLOSURES: 103s I am scheduling for discussion at the September 11, 1986 City Commission meeting certain proposed amendments to the City's Cable License Ordinance.