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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: 1 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. 2 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. 3 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 4 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 5 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 6 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 7 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. 8 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 .