HomeMy Public PortalAbout2001-65 Agreement with Adelphia Cable CommunicationsRESOLUTION NO. 2001- 65
A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, APPROVING A CABLE TELEVISION LICENSE
AGREEMENT BETWEEN THE VILLAGE OF KEY
BISCAYNE AND KEY BISCAYNE CABLEVISION DB/A
ADELPHIA CABLE COMMUNICATIONS; PROVIDING
CONDITIONS FOR USE OF THE VILLAGE'S RIGHTS -OF -
WAY TO CONSTRUCT, MAINTAIN AND OPERATE A
CABLE SYSTEM TO PROVIDE CABLE TELEVISION
SERVICES; PROVIDING FOR ACCESS CHANNELS AND
SUPPORT; PROVIDING FOR COMPENSATION;
PROVIDING FOR CONSENT TO TRANSFER; PROVIDING
FOR REMEDIES; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 U.S.C. 541 et
5eq., and Sections 166.046 and 337.401, Florida Statutes, the Village may grant a license to
construct, operate and maintain a cable system within the Village; and
WHEREAS, Key Biscayne Cablevision d/b/a Adelphia Cable Communications ("Adelphia")
desires to obtain a license to construct, maintain, and operate a cable system in the Village; and
WHEREAS, the construction, maintenance, and operation of such a System involves the use
and occupation of the Village's public rights -of -way, over which the Village exercises governmental
control; and
WHEREAS, the Village Council has evaluated Adelphia's request in light of the
requirements of federal and state law, and the Village Council has conducted a public hearing
concerning Adelphia's request; and
WHEREAS, pursuant to Section 166.046, Florida Statutes, the Village has conducted a duly
noticed public hearing at which it considered the economic impact upon private property within the
license area, the public need for such license, the capacity of the public rights -of -way to
accommodate the cable system, the present and future use of the public rights -of -way to be used by
the cable system, the potential disruption to existing users of the public rights -of -way to be used by
the cable system lmd the resultant inconvenience that may occur to the public, the financial ability
of Adelphia to perform, and other matters that the Village considers to be relevant to the public
interest; and
WHEREAS, the Village has relied on Adelphia's representations and the Village has
considered all information presented to it by Adelphia and the public; and
WHEREAS, based on said representations and information, the Village has determined that
a grant to Adelphia of a nonexclusive license to construct, install, maintain and operate a cable
system in the Village, subject to the terms and conditions set forth in the License Agreement, are
consistent with the public interest.
NOW THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being
true and correct and are hereby made a specific part of this Resolution upon adoption hereof.
Section 2. That the Cable Television License Agreement between the Village of Key
Biscayne and Key Biscayne Cablevision d/b/a Adelphia Cable Communications ("Adelphia") which
is attached to this Resolution as Exhibit "A", allowing Adelphia to provide cable service to the
residents of the Village, is hereby accepted and the appropriate Village officials are hereby
authorized to execute same.
Section 3. That the Village Manager and Village Attorney are authorized to make minor
revisions to such License Agreement as are deemed necessary and proper for the best interests of the
Village.
Section 4. That this Resolution shall be in force and take effect immediately upon its
passage and adoption.
PASSED AND ADOPTED this 9th day of October , 2001.
CONCHITA H. ALVAREZ, CMC, VILLAGE
APPROVED AS TO FORM AND LEGAL S
A
RICHARD JAY WEISS, VILLAGE ATTORNEY
MAYOR JOE L RASCO
CABLE TELEVISION LICENSE AGREEMENT
Between
KEY BISCAYNE, FLORIDA
And
KEY BISCAYNE CABLEVISION d/b/a ADELPHIA CABLE COMMUNICATIONS
THIS LICENSE AGREEMENT, effective this 1411 day of Motpek heK 2001, is
by and between Key Biscayne, Florida, a Florida municipal corporation existing under the laws
of the state of Florida ("the Village") and Key Biscayne Cablevision d/b/a Adelphia Cable
Communications, a partnership authorized to do business in Florida ("Adelphia").
WHEREAS, the Board of County Commissioners of Miami -Dade County, Florida
(hereinafter "the County") issued a License to Key Biscayne Cablevision d/b/a Adelphia Cable
Communications, to construct and to operate a cable system to provide cable service to certain
delineated portions of Miami -Dade County, Florida, including the Village of Key Biscayne (the
"Village"); and
WHEREAS, Adelphia has constructed a cable system in the Village using the Village's
.fights -of -way and has been providing cable service to the Village, pursuant to the License
granted by the County, and in accordance with the County Cable Ordinance, Chapter 8AA,
Article I of the County Code ("County Cable Ordinance"); and
WHEREAS, on April 24, 2001, the County renewed Adelphia's License pursuant to
Resolution No. R-410-01 to operate a cable system in certain delineated portions of the County,
including the Village, pursuant to the County Cable Ordinance; and
WHEREAS, the Village Council of Key Biscayne approves of the County's renewal of
the License to Adelphia; and
WHEREAS, the Village has the authority, under state and federal law, to authorize the
provision of cable television services within the Village; and
WHEREAS, Adelphia has applied to the Village for a license to continue to provide
cable television service within the Village.
NOW, THEREFORE, in consideration of the facts stated above and the mutual promises and
covenants herein contained, the parties mutually agree as follows:
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1.0 Definitions
Except as otherwise provided herein, the definitions contained in the County Cable
Ordinance shall govern this License Agreement. To the extent that any of the terms,
herein defined, contradict a similar definition in the County Cable Ordinance, then the
definition stated in this Agreement shall apply rather than the contradictory definition. In
addition, the following definitions shall apply:
a. "Adelphia" means Key Biscayne Cablevision d/b/a Adelphia Cable
Communications, a partnership authorized to do business in Florida, and its lawful
and permitted successors, assigns and transferees pursuant to this License
Agreement.
b. "County Cable Ordinance" or "Ordinance" means the Miami -Dade County Cable
Ordinance, Ordinance number 90-104, in its entirety, as amended and as may be
amended, codified at chapter 8AA, Article I, of the Miami -Dade County Code.
c. "Effective Date" means the date first stated above which shall be the date the
License Agreement is executed by the appropriate Village officials following
approval by the Village Council and execution by Adelphia.
d. "License Agreement" "License" or "Agreement" means this License Agreement,
which is a non-exclusive agreement.
e. "License Area" means the entire area within the legal boundaries of the Village of
Key Biscayne, Florida, and such other areas as may hereinafter be annexed or
incorporated by the Village during the term of the License.
f. "Public Rights -of -Way" means the space in, upon, above, along, across, and over
the public streets, roads, lanes, courts, ways, alleys, boulevards, sidewalks,
bridges, and places, including all public utility easements and dedicated public
service easements as the same now or may hereafter exist, that are under the
jurisdiction of the Village. This term shall not include state, county or federal
rights -of -way or any property owned by any Person other than the Village, except
as provided by applicable laws or pursuant to an agreement between the Village
and any such Person. Such term shall also not include property owned by the
Village in fee that has not been generally dedicated for use as a public right-of-
way.
g -
"Village" means the Village of Key Biscayne, Florida.
2.0 Term of License Agreement
2.1 This License Agreement shall commence on the Effective Date and shall expire
ten (10) years from said date.
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2.2 Adelphia's license is non-exclusive and the Village reserves the right to award
other licenses to other providers of cable television service, pursuant to the terms
and conditions of the County Cable Ordinance.
2.3 Upon expiration of this Agreement, and if the Village does not renew this License
Agreement, and if Adelphia continues to occupy the Public Rights -of -Way and
provide cable service to Village residents, Adelphia shall continue to be bound to
the terms and conditions of the County Cable Ordinance and this License
Agreement until the Village and/or Miami -Dade County provide written notice to
Adelphia expressing an intent to terminate its cable service within the Village.
2.4 Adelphia may apply for renewal of this License for a term up to ten (10) years in
accordance with the procedures set forth in the County Cable Ordinance or if no
such procedures are in effect then in accordance with applicable federal law.
Adelphia shall be responsible for payment of the Village's costs, including costs
incurred for the preparation and completion of the renewal and incident to the
Village's consideration of the renewal request, up to the amount of $5,000, which
shall not be deducted from the license fee.
3.0 Conditions of the License Agreement
3.1 With respect to its operations of a cable system in the Village of Key Biscayne,
Adelphia shall comply with the provisions of County Resolution No. R-410-01
and with the County Cable Ordinance including the customer service requirements
contained therein. This License Agreement shall not preempt nor prohibit the
Village from exercising its full authority under applicable law to enact
requirements for the operation of cable systems within the Village that differ from
or exceed the requirements in the County Cable Ordinance, including customer
service standards.
3.2 Adelphia shall be subject to all applicable local, Village, state and federal laws,
ordinances, rules, regulations and orders, existing or hereafter lawfully adopted.
Adelphia shall at all times be subject to all lawful exercise of the police power of
the Village, and this License is not intended to limit the Village's exercise of such
power in any way.
3.3 Adelphia shall obtain any required permits and pay any required fees before
commencing any construction on or otherwise disturbing any private property or
Public Rights -of -Way as a result of its construction or operations. Adelphia shall,
at its own expense, restore such property and repair any damage. If such
restoration or repair is not performed in a reasonable and satisfactory manner
within the time frame required by the Village, the Village may, after ten (10) days
prior written notice to Adelphia, cause the repairs to be made at Adelphia's
expense. The Village may require as a condition of issuing permits the
submission of a construction bond.
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3.4 Adelphia shall reimburse the Village for all monies incident to the Village's
preparation and completion of this License Agreement, up to the amount of $7,500.
Adelphia shall pay the Village the amounts due under this Section within ten (10)
days after receiving a statement of such costs from the Village. Such costs shall not
be deducted from the license fee.
3.5 Adelphia shall provide written notice of rate increases, programming changes, and
changes to its policies and procedures that affect the Village residents to the
Village Manager at least thirty (30) days in advance of such change if such change
is within its control. Upon request, Adelphia shall provide the Village Manager
with reports made available to the Miami -Dade County pertaining to its operations
within the Village.
4.0 Insurance
4.1 Adelphia shall obtain and maintain insurance of the types and minimum amounts
required in the County Cable Ordinance and shall name the Village as an
additional insured and file proof of such insurance with the Village within 60 days
from the effective date of this Agreement.
5.0 Indemnification
5.1 Adelphia shall, at its sole cost and expense, indemnify, hold harmless, and defend
the Village, its elected or appointed officials, employees, committees and boards,
against any and all claims, suits, costs, losses, damages, expenditures causes of
action, proceedings, judgments for equitable relief, and costs and expenses,
including attorneys' fees, arising out of Adelphia's operation of a cable system in
the Village. Subject to the limitations of Section 768.28, Florida Statutes, the
Village shall, at its sole cost and expense, indemnify, hold harmless and defend
Adelphia against any and all claims suits, costs, losses, damages, expenditures,
causes of action, proceedings, judgments for equitable relief, and costs and
expenses, including attorneys' fees, arising solely out the Village's operation of
any of the public, educational, and government access channels herein mentioned.
5.2 This Agreement shall not be construed to affect, in any way, the Village's rights,
privileges and immunities as set forth in Section 768.28, Florida Statutes.
6.0 Services to Public Facilities
6.1 Adelphia shall provide without charge one outlet for cable service on each floor to
all government buildings and schools within the Village, including all such
buildings that may be constructed or opened or within areas that may be annexed
into the Village during the term of this License. Such service shall include the
basic cable service tier and all programming offered on the cable programming
service tier including any additional programming added to those two levels of
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service, to the extent a separate charge is not associated with such additional
programming.
6.2 Adelphia shall provide without charge one cable modem and unlimited access to
its cable modem service to all schools and libraries within the Village, including
such schools and libraries that may be opened or within areas that may be annexed
into the Village during the term of this License. If requested, Adelphia shall,
provide internal wiring in government buildings, including schools and libraries,
for additional cable outlets and outlets for cable modem service at cost and shall,
to the extent technically possible, coordinate the installation of such internal
wiring with the construction of such buildings.
7.0 Municipal Access Channels and Support
7.1 Adelphia shall continue to make available to the Village the access channel
carried on channel 99 on its cable system for the Village's sole use as a public
educational and government ("PEG") access channel. Within six (6) months of
the Effective Date of this Agreement, Adelphia shall make a second channel on its
cable system available to the Village for its sole use as a PEG access channel, as
the Village in its sole discretion may determine. The Village shall be capable of
transmitting live programming, including live coverage of Village Council
meetings, on the access channels to Adelphia's subscribers in the Village, from
Village Hall, located at 85 West McIntyre Street, Key Biscayne, Florida.
Adelphia and the Village may agree to change the channel positions for the PEG
access channels, as long as the PEG access channels are carried on the tier
subscribed to by most subscribers.
7.2 If the two (2) PEG access channels provided for in Section 7.1 are programmed
with non -repetitive programming eight hours per day, Monday through Friday, for
six (6) consecutive months, then Adelphia shall make available to the Village at
its request a third access channel in the tier subscribed to by most subscribers or
on such channel as may be agreed to by the Village.
7.3 Access channels shall not carry commercial programming or advertising for for-
profit entities or political candidates or programming determined to be obscene.
The Village may adopt reasonable rules governing the use of the access channels.
7.4 Within sixty (60) days of the Effective Date of this Agreement, Adelphia shall
provide to the Village the amount of $10,000 for the support of the Village's PEG
access channels. Adelphia agrees that it will not offset said payment with license
fees payable to the Village and also agrees that it will not pass said amount
through to subscribers.
7.5 Within thirty (30) days of the effective date of this Agreement, Adelphia shall
provide to the Village the amount equal to $.50 per subscriber per year until
October 1, 2003, at which time the amount shall be increased to $1.00 per
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subscriber per year, to support the Village's expenses incurred in the use of its
access channels. Adelphia agrees that said payments will not be offset by license
fees payable to the Village. Adelphia reserves the right to pass said payments
through to its subscribers as permitted by federal law. In addition, upon
reasonable request of the Village Manager and subject to reasonable availability,
Adeiphia shall make its studio facilities located in Miami -Dade County available
for free to produce taped or live programs of no longer than one-half hour duration
for carriage on the access channels.
7.6 To the extent that Adelphia's financial contributions are used by the Village for
capital expenditures, such funds shall be considered capital expenses pursuant to
47 U.S.C. §542(g)(2)(C), and shall not be considered a license fee or a tax.
7.7 Adelphia agrees not to pass through to subscribers within the Village the costs
incurred in connection with making the PEG access channels available on its
system.
8.0 License Fees
8.1 The requirement that Adeiphia pay the Village License fees contained in this
Section shall not apply during such time as Florida Law prohibits the Village from
collecting a License fee or similar compensation. If the Village is entitled legally
to charge a License fee or similar fee, then Adelphia will pay the highest fee
legally authorized.
8.2 For the term of its operation in the Village, Adeiphia shall pay to the Village on a
quarterly basis no later than the 25th day following the close of each quarter a sum
equal to three percent (3%) per annum of its gross subscriber revenues from the
operation of its cable system to provide cable service in the Village, provided,
however, that the total of its payments to the Village and to Miami -Dade County
shall not exceed five percent (5%) of its gross subscriber revenues from operations
in the Village. A statement certified by a financial representative of Adelphia
shall accompany each payment.
8.3 All rates, fees, charges and financial obligations previously accrued by Adeiphia
and owed to the Village under any prior or current ordinances, resolutions or other
lawful authority shall continue and remain due and owing until paid.
9.0 Assignment and Transfer of License Agreement
9.1 This License Agreement shall be personal to Adelphia.
9.2 Adeiphia shall obtain the consent of the Village prior to the transfer or assignment
of the assets of cable system serving the Village or of this License or prior to a
change in control of Adelphia. Such consent shall not be required for a pledge of
mortgage or other indebtedness, or for a transfer to a wholly -owned subsidiary or
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parent of Adelphia, or to an affiliated entity wholly -owned by or under common
control of the same parent as Adelphia. The procedures governing an application
for consent shall be those set forth in the County Cable Ordinance, or if no such
procedures are in effect, then in accordance with federal law. Adelphia shall be
responsible for payment of the Village's costs incident to the Village's
consideration of the transfer request, including costs incurred for the review and
approval of the transfer application, up to the amount of $5,000, which shall not
not be deducted from the License fee.
10.0 Default
10.1 The Village may, pursuant to the terms of the County Cable Ordinance, the
Village's Code and applicable law, pursue a variety of remedies for Adelphia's
non-compliance with this Agreement, including but not limited to revoking this
License, remedies available in law and equity to enforce this License, and fines for
non-compliance in the amount up to $500 per day for each day a violation
continues. Prior to pursuing any such remedies, the Village shall provide
Adelphia with reasonable written notice of the alleged violation and a reasonable
opportunity to respond or to cure the alleged violation, as detailed in the County
Cable Ordinance. Adelphia shall be relieved of its obligations under this
Agreement for causes or events not within Adelphia's control that would also
relieve Adelphia of its obligations under the County Cable Ordinance.
t .0 Notice
11.1 All written correspondence between the Village and Adelphia shall be sent via
overnight courier or certified mail and shall be addressed to the following:
If to the Village:
With a copy to:
If to Adelphia:
Sam Kissinger, Village Manager
Village of Key Biscayne
85 West McIntyre Street
Key Biscayne, FL 33149
Gary Resnick, Office of the Village Attorney
Weiss Serota Helfman Pastoriza & Guedes
3107 Stirling Road, Suite 300
Fort Lauderdale, FL 33312
Jean Simmons, General Manager
Adelphia Cable Communications
20800 Southwest 167th Ave.
Miami, FL 33187
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With a copy to:
Adelphia Cable Communications
1 North Main Street
Coudersport, PA 16915
Attention: Legal Department
or to such updated addresses as the parties may provide.
12.0 Severability
12. 1 The provisions of this License Agreement are declared to be severable. If any
section, sentence, clause or phrase of this License Agreement shall for any reason
be pre-empted by state or federal law, or held to be invalid or unconstitutional,
such decision shall not affect the validity of the remaining sections, sentences,
clauses and phrases of this License Agreement, but they shall remain in effect, it
being the intent of the Parties that this Agreement shall stand notwithstanding the
invalidity of any part.
13.0 Governing Law/Venue
13.1 This License Agreement shall be construed in accordance with the laws of the
State of Florida and is subject to applicable local, state and federal law.
13.2 Venue for any action arising out of this License Agreement shall reside in the
appropriate court in Miami -Dade County or in the United States District Court for
the Southern District of Florida.
14.0 Miscellaneous
14.1 This License Agreement may be executed in counterpart.
14.2 Adelphia shall submit an executed original of this License Agreement within
fifteen (15) calendar days after approval by the Village Council.
14.3 No modification, amendment or alteration in the terms or conditions of this
Agreement shall be effective unless contained in a written document executed
with the same formality as this Agreement.
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IN WITNESS OF THE FOREGOING, the parties have set their hands and seal the
day and year first written above.
VILLAGE OF KEY BISCAYNE
Je
BY: C. SAMUEL KIS
VILL
ita Alvarez, CMC
Village Clerk
APPROVED AS TO FORM AND LEGAL S
rI
Village Attorney
103041/Adelphia Cable License9-7-01
Title:
GER
MANAGER
KEY BISCAYNE CABLEVISION d/b/a
ADELPHIA CABLE COMMUNICATIONS
By:
kcijt.au,%.
Print Name: Randall D. Fisher
esident 9f th General
General Partner s Sole Member
Vice P
Managing Aneral Par ncr
Date: 6thday of November 2001
if,./frite
As to "Licensee"
Pa tner's
Sole Member
9
.