HomeMy WebLinkAboutAgreement_Franchise Agreement_03/26/1998• A FRANCHISE AGREEMENT BETWEEN VILLAGE OF TEQUESTA, FLORIDA AND
SOUTHEAST FLORIDA CABLE, INC. D/B/A ADELPHIA CABLE COMMUNICATIONS
TO PROVIDE FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF A
CABLE TELEVISION SYSTEM IN VILLAGE OF TEQUESTA, FLORIDA
SECTION 1. STATEMENT OF INTENT AND PURPOSE.
1.01 Statement of Intent and Purpose. Village of Tequesta and Southeast Florida Cable,
Inc.(d/b/a Adelphia Cable Communications) intend, by the adoption of this Franchise Agreement
(referred to herein as the ("Franchise" or the"Agreement"), to bring about the development and
operation of a cable television system. This development can contribute significantly to the
communications needs and desires of many individuals, associations, and institutions.
SECTION 2. DEFINITIONS
For the purpose of this Franchise, the following terms, phrases, words, and their
derivations shall have the meanings given herein. When not inconsistent with the context, words
used in the present tense; include the future tense, words in the plural number include the singular
number; and words in the singular number include the plural number. The words "shall" and
"will" are mandatory and "may" is permissive. Words not defined shall be given their common
and ordinary meaning.
• 2.01 "Basic Service" means a group or groups of Cable Services distributed over the
cable system consisting of any service tier which includes the retransmission of local television
broadcast signals.
2.02 "Cable Act" means the Cable Communications Policy Act of 1984 and the Cable
Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 521 et seq. (1992),
and as those acts may hereinafter be amended.
2.03 "Cable Svstem" or "System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception and control equipment that is
designed to provide cable television service which includes video programming and which is
provided to multiple subscribers within the Village, but such term does not include (A) a facility
that serves only to retransmit the television signals of one (1) or more television broadcast
stations; (B) a facility that serves only subscribers in one (1) or more multiple unit dwellings
under common ownership, control or management, unless such facility or facilities crosses or uses
any public right-of--way, including streets or easements; ° a facility of a common carrier which
is subject, in whole or in part, to the provisions of Title II of the Cable Act, except that such
facility shall be considered a cable system to the extent such facility is used in the transmission
of video programming directly to subscribers; or (D) any facilities of any electric utility used
solely for operating its electric utility systems.
• 2.04 "Cable Service" means: (I) the one-way transmission to subscribers of video
programming or other programming service; and (ii) subscriber interaction, if any, which is
• required for the selection or use of such video programming or other programming service.
2.05 harm 1" means a band of frequencies in the electromagnetic spectrum, or any
other means of transmission (including, without limitation, optical fibers or any other means now
available or that may become available), which is capable of carrying a video signal, an audio
signal, a voice signal, or a data signal.
2.06 "Village" means the Village of Tequesta or, as appropriate in the case of specific
provisions of this Franchise, any board, bureau, authority, agency, commission, department of,
or any other entity of or acting on behalf of, the Village of Tequesta or any officer, official,
employee, or agent thereof, the designee of any of the foregoing, or any successor thereto.
2.07 "Village Council" means the governing body of the Village.
2.08 "Complaint" means any written inquiry, allegation or assertion made by a
subscriber which raises an objection to the business practices of Company. The term "Complaint"
does not include an inquiry which is immediately answered by the Company.
2.09 "Converter" means an electronic device with an appropriate Channel selector that
permits a subscriber to view all signals delivered at designated Converter dial locations.
2.10 "Drop" means the cable that connects the subscriber terminal at a point in the
• subscriber's home, designated by the subscriber, to the nearest feeder cable of the system.
2.11 "FCC" means the Federal Communications Commission, its designee, or any
successor thereto.
2.12 "Company" means Southeast Florida Cable, Inc., d/b/a Adelphia Cable
Communications, a Florida corporation, with offices located at Main at Water Street,
Coudersport, Pennsylvania 16915.
2.13 "Gross Revenues" means all revenues actually collected by the Company relating
to the provision of Cable Services, including subscriber revenues and non-subscriber revenues.
Gross Revenues does not include revenues relating to the provisions of any telephony or data
services.
2.14 "Installation" means the act of connecting the system from the feeder cable to the
subscriber terminal so that cable television service may be received by the subscriber.
2.15 "Pay Television" means the delivery over the system ofper-channel or per-program
audio-visual signals to subscribers for a fee or charge.
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2.16 "Person" means any natural person or any association, firm, partnership, joint
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• venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit.
2.17 "Public PropertX" means any real property, other than a street, owned by any
governmental unit.
2.18 "Service" means only Cable Service, including any Basic service, whether
originated by the Company or any other person, which is distributed over, the Cable System.
2.19 "Signal" means any transmission of radio frequency energy or of optical
information.
2.20 treet" means the surface of and the space above and below any public street,
public road, public highway, public freeway, public lane, public path, public way, public alley,
public court, public sidewalk, public boulevard, public parkway, public drive or any public
easement or right-of--way now or hereafter held by the Village which shall entitle Company to the
use thereof for the purpose of installing or transmitting over poles, wires, cables, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may
be ordinarily necessary and pertinent to a system.
2.21 "Subscriber" means any person or entity who lawfully subscribes to any cable
service whether or not a fee is paid for such service.
• SECTION 3. GRANT OF AUTHORITY AND GENERAL PROVISIONS.
3.01 Grant of Franchise. This Franchise is granted pursuant to the terms and conditions
contained herein. Such terms and conditions shall be subordinate to all applicable provisions of
state and federal laws, rules, and regulations.
3.02 Authority for Use of Streets.
A. For the purpose of constructing, operating, and maintaining a Cable System
in the Village, so as to allow for the provision of cable services to Subscribers, Company may
erect, install, construct, repair, replace, relocate, reconstruct and retain in, on, over, under, upon,
across and along the streets within the Village such lines, cables, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment
as are necessary and appurtenant to the operation of the System, provided that all applicable
permits are applied for and granted, all fees paid and all other Village codes and ordinances are
otherwise complied with, including but not limited to, codes and ordinances regulating the location
of cable system facilities.
B. Company shall construct and maintain the System so as not to interfere with
other uses of streets. Company shall endeavor to make use of existing poles and other facilities
available to Company where feasible and not otherwise prohibited by Village Codes and
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• Ordinances now or hereafter in effect.
3.03 Nature of Franchise. Upon acceptance, the Company's nonexclusive franchise for
the occupation and use of the streets within the Village for the construction, operation,
maintenance, upgrade, repair, and removal of the system in accordance with the provisions of this
Franchise shall be deemed to have been renewed.
3.04 Franchise Term. This Franchise shall commence upon acceptance by Company as
defined herein and shall be in full force and effect for a period of ten (10) years, unless renewed,
revoked, or terminated sooner as herein provided.
3.05 Area Covered. This Franchise is granted for the territorial boundary of the Village
and for any area henceforth added thereto during the term of the Franchise.
3.06 Written Notice. All notices, reports or demands required to be given in writing
under this Franchise shall be deemed to be given when delivered personally to the person
designated below, or when five (5) days have elapsed after it is deposited in the United States mail
in a sealed envelope, with registered or certified mail postage prepaid thereon, or on the next
business day if sent by express mail or overnight air courier addressed to the party to which notice
is being given, as follows:
If to Village: The Village Council of the Village of Tequesta
P.O. Box 3273
Tequesta, FL 33469-0273
Attn: Village Manager
With Copy to: Jones, Foster, Johnston & Stubbs, P.A.
P.O. Box 3475
West Palm Beach, Florida 33402-3475
Attn: John C. Randolph, Esq.
If to Company: Southeast Florida Cable, Inc.
5 W. 3rd Street
Coudersport, Pennsylvania 16915
Attn: Michael Rigas
With Copy to: Legal Department
Adelphia Communications Corporation
5 W. 3rd Street
Coudersport, Pennsylvania 16915
Such addresses and phone numbers may be changed by either party upon notice to the
other party given as provided in this section.
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3.07 Franchise Non-Exclusive. The Franchise granted herein is non-exclusive.
However, the Village agrees that it shall not permit another franchisee to utilize the public rights-
of-way on terms or conditions which are more favorable or less burdensome than those applied
to the Company. To the extent that another franchisee is not subject to such requirements, the
Company's corresponding obligations shall be reduced to reflect terms and conditions which are
no more burdensome and no less favorable than those applied to any other franchisee.
SECTION 4. DESIGN PROVISIONS.
4.01 Svstem Design.
A. Company shall complete a System upgrade, to a capacity of 750 MHZ, on or
before the expiration of five (5) years from the effective date of the Franchise. Company shall,
upon request, provide the Village with (1) a full description of the System proposed for
construction and (2) upon completion of the System upgrade, maps for the System upgrade.
B. Channel Capacity. Company shall at all times throughout the term of the
Franchise, at a minimum, provides at least 50 activated downstream channels. In the event that
the Company agrees with the Village to further upgrade the Cable System at any time throughout
the term of the Franchise, it shall also agree to provide one (1) upstream channel which may be
used for the purpose of interconnecting public buildings within the Village.
• C. Closed Captioning All video signals received for transmission that contain
closed circuit captioning information for the hearing impaired shall in turn contain such
information in the form received when transmitted by the cable operator to the subscribers of the
system in the form received from the video suppliers. In addition, Company agrees to comply
with the provisions of Federal, state and local laws concerning handicapped or disabled persons
and shall indemnify and hold the Village harmless from any suit, claim or demand against it for
violation of such laws which may arise in connection with the Company's provision, or failure
to provide, services in conformity with such laws.
D. Stereo Signals. Company's System shall be capable of transmitting, and shall
transmit, to subscribers any stereo signals received and carried by the System.
4.02 Provision of Service.
The Company, shall provide Cable Service anywhere with the territorial boundary of the
Village.
4.03 Technical Standards. The system shall be designed, constructed and operated so
as to meet or exceed those technical standards promulgated by the Federal Communications
Commission relating to Cable Systems contained in subpart K of part 76 of the Federal
Communications Commission's rules and regulations as may, from time to time, be amended.
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• Company agrees to use responsible efforts to maintain the System at the state of the art then
prevailing in the cable television industry, to the extent economically and technically feasible.
4.04 Special Testing. The Company shall only be required to conduct such tests as
required by the Federal Communications Commission. No other testing shall be required of
Company. The Village shall be free to conduct its own testing as it deems is warranted, and at its
own expense, but such testing shall have no bearing on Company's status as franchisee unless such
test requirements are no longer preempted by the Federal Communications Commission.
4.05 Si pal uality. The system shall produce a picture that is consistent with Federal
Communications Commission standards.
SECTION 5. SERVICE PROVISIONS.
5.01 Programming Decisions. All programming decisions shall be at the sole discretion
of Company so long as consistent with rules and regulations of the Federal Communications
Commission and applicable federal law. Company agrees to use reasonable efforts to maintain
programming services at a level then prevailing in the cable television industry, to the extent
economically and technically feasible.
5.02 Access Channels.
• A. The Company shall make available for use by the Village, without charge, a
minimum of one (1) activated channel for non-commercial governmental programming, non-
commercial public access programming and non-commercial educational programming.
B. The Company may use the access channel required in paragraph A for any
programming during those hours when the channel is not in use by the general public, local
educational authorities or local government.
C. No charges may be made for channel time or playback of locally produced live
or pre-recorded programming on the access channel required in paragraph A including character
generated message board when utilized for non-commercial governmental programming, non-
commercial public access programming or non-commercial educational programming.
D. Whenever the access channel required in paragraph A is in use for
unduplicated, locally produced live programming for six (6) hours per day, six (6) days per week,
for six (6) weeks running, demand for afull-time channel shall be presumed and Company shall
refrain from further use of said channel for programming other than that designated by franchise.
Once this channel is in use to provide unduplicated locally produced live programming continuous
for twelve (12) hours a day, six (6) days per week, for six (6) continuous weeks, Company, upon
notice from the Village, shall have three (3) months in which to provide an additional access
channel for the same purpose.
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• E. The Village shall establish rules pertaining to the administration of the access
channel required in paragraph A. Such rules shall be consistent with the terms and provisions of
the Cable Act.
F. The Company Shall provide the Village, upon request, with reasonable
production support for up to two events per year the Village wishes to transmit on the access
channel required in Paragraph A. such support shall consist of the provision of equipment and
personnel. The Company shall provide such support for each event for up to six (6) hours. The
Village shall provide the Company with four (4) weeks' advance, written notice of its request for
such support.
G. Company shall not be obligated to cablecast Village Council Meetings.
However, upon the delivery to Company by Village of a tape of any meeting which the Village
desires to cablecast, Company shall agree to cablecast the meeting on atape-delayed basis,
Notwithstanding the foregoing, upon the completion of its system upgrade, and at the request of
the Village, the Company shall cablecast the meeting live.
SECTION 6. CONSTRUCTION PROVISIONS.
6.01 Construction Standards.
• A. All construction practices shall be in accordance with all applicable sections
of federal law, including, but not limited to, the Occupational Safety and Health Act of 1970, as
amended, as well as all state and local codes where applicable.
B. All installation of electronic equipment shall be of a permanent nature, durable
and installed in accordance with the provisions of the National Electrical and Safety Code and
National Electrical Code as amended.
C. Antennas and their supporting structures (tower) shall be painted, lighted,
erected and maintained in accordance with all applicable rules and regulations of the Federal
Aviation Administration and all other applicable federal, state or local laws, codes and
regulations.
D. All of Company's plant and equipment, including, but not limited to, the
antenna site, headend and distribution system, towers, house connections, structures, poles, wire,
cable coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed,
reconstructed, replaced, removed, repaired, maintained and operated in accordance with good
engineering practices, performed by experienced maintenance and construction personnel so as
not to endanger or interfere with improvements the Village may deem appropriate to make or to
interfere in any manner with the rights of any property owner, or to unnecessarily hinder or
obstruct pedestrian or vehicular traffic.
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. E. Company shall at all times employ ordinary care and shall install and maintain
in use commonly accepted methods and devices preventing failures and accidents which are likely
to cause damage, injury or nuisance to the public.
6.02 Construction Codes and Permits.
A. Company shall obtain all required permits from the Village before commencing
any work requiring a permit, including the opening or disturbance of any street, or public
property or public easement within the Village. Company shall adhere to all building and zoning
codes currently or hereafter applicable to construction, operation or maintenance of the system
in the Village.
B. The Village shall have the right to inspect all construction or installation work
performed pursuant to the provisions of this Franchise and to make such tests (at its own expense)
as it shall find necessary to ensure compliance with the terms of the Franchise and applicable
provisions of local, state and federal law. The preceding sentence shall not alter Company's
obligation to comply, at Company's expense, with Village permitting requirements specifying that
Company undertakez density or compaction testing to verify that relevant roadway base and/or
sub-base meets specified density requirements.
6.03 Repair of Streets and PropertX. Any and all streets or public property or private
property, which are disturbed or damaged during the construction, repair, replacement, relocation,
• operation, maintenance or reconstruction of the system shall be promptly repaired by Company,
at its expense, to a condition as good as that prevailing prior to Company's construction. The
Village shall have the right to require that it approve repairs performed by Company pursuant to
this Section 6.03; such approval shall not be unreasonably withheld.
6.04 IJndergroundin,g of Cable. Cable shall be installed underground at Company's
expense where both the existing telephone and electrical utilities are already underground.
Company shall place cable underground in newly platted areas in concert with both the telephone
and electrical utilities. In the event that telephone or electric utilities are reimbursed by the
Village or any agency thereof for the placement of cable underground or the movement of cable,
Company shall be reimbursed upon the same terms and conditions as the telephone or electric
utilities.
6.05 Reservation of Street Rights.
A. Nothing in this Franchise shall be construed to prevent the Village from
constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing,
relocating and/or altering any street; constructing, laying down, repairing, maintaining or
relocating any water mains; or constructing, maintaining, relocating, or repairing any sidewalk
or other public work.
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• B. All such work shall be done, insofar as practicable, in such a manner as not to
obstruct, injure or prevent the free use and operation of the poles, wires, conduits, conductors,
pipes or appurtenances of Company.
C. If any such property of Company shall interfere with the construction or
relocation, maintenance or repair of any street or public improvement, whether it be construction,
repair, maintenance, removal or relocation of a sewer, public sidewalk, or water main, street or
any other public improvement, thirty (30) days notice shall be given to Company by the Village
and all such poles, wires, conduits or other appliances and facilities shall be removed or replaced
by Company in such manner as shall be directed by the Village so that the same shall not interfere
with the said public work of the Village, as determined by the Village, and such removal or
replacement shall be at the expense of Company herein. Should, however, any utility Company
be reimbursed for relocation of its facilities as part of the same work that requires Company to
remove its facilities, Company shall be reimbursed upon the same terms and conditions as utilities.
D. Nothing contained in this Franchise shall relieve any Person from liability arising
out of the failure to exercise reasonable care to avoid injuring Company's facilities while
performing any work connected with grading, regrading, or changing the line of any street or
public place or with the construction or reconstruction of any sewer or water system.
6.06 Trimming of Trees. Company shall have the authority to trim trees upon and
hanging over public streets, public alleys, public sidewalks, and public places of the Village so
• as to prevent the branches of such trees from coming in contact with the wires and cables of
Company; provided, however, all trimming shall be done, at the expense of Company, under the
supervision and direction of the Village.
6.07 Movement of Facilities. In the event it is necessary temporarily to move or remove
any of Company's wires, cables, poles, or other facilities placed pursuant to this Franchise, in
order to lawfully move a large object, vehicle, building or other structure over the streets of the
Village, upon two (2) weeks notice by the Village to Company, Company shall move at the
expense of the person requesting the temporary removal such of his facilities as may be required
to facilitate such movements. Any service disruption provisions of this Franchise shall not apply
in the event that the removal of Company's wires, cables, poles or other facilities results in
temporary service disruptions.
SECTION 7. OPERATION AND REPORTING PROVISIONS.
7.01 Olen Books and Records.
A. The Village shall have the right to inspect and/or audit, upon two weeks written
notice, at any time during normal business hours at the system office all books, records, maps,
plans, financial statements, service complaint logs, performance test results, record of requests
for service and other like materials of Company which are reasonably necessary to monitor
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• compliance with the terms of this Franchise. Company shall first be given two (2) weeks written
notice of the inspection and/or audit request, the description of and purpose for the inspection
and/or audit and description, to the best of the Village's ability, of the books, records, documents
and equipment it wants to inspect and/or audit. All costs incurred in connection with the
performance of an inspection and/or audit shall be borne by the Village.
B. In the event that the Village undertakes performance of an audit in connection
with the payment of franchise fees by the Company to the Village and said audit shows a
discrepancy in fees paid and fees owed in excess of 3 %, then all costs and fees incurred in
connection with the performance of such audit shall be borne by the Company.
7.02 Communications with Regulatory A eg ncies. Copies of all petitions, applications,
communications and reports submitted by Company or on behalf of or relating to Company to the
FCC, Securities and Exchange Commission or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affecting the system authorized pursuant
to this Franchise shall be sent to the Village upon request. Copies of responses from the
regulatory agencies to Company shall likewise be sent to the Village upon request.
7.03 Annual Report. On or before June 30, including the year in which the Franchise
becomes effective, Company shall file with the Village a copy of the following information
regarding the system: a financial statement including an income statement; statement of operating
expenses; a cash flow statement; and a balance sheet. Such information shall be prepared on an
• allocated basis in conformance with applicable FCC cost allocation requirements and GAAP. All
such reports shall be certified by the Company.
SECTION 8. SUBSCRIBER SERVICE PROVISIONS
Company agrees that it shall comply with the minimum standards set forth in the rules and
regulations of the FCC regarding consumer service and customer protection. Company agrees
that it shall also comply with the standards of the National Cable Television Association regarding
consumer service and customer protection.
SECTION 9. GENERAL FINANCIAL AND INSURANCE PROVISIONS.
9.01 Payment to Village.
A. In consideration for the grant of the cable franchise, the Company will pay the
Village a fee equal to the following: five percent of the Company's gross revenues derived from
the operation of the Subject Cable System to provide cable service. The Company shall pay such
fees to the Village on a quarterly basis no later than the 45th day of the month immediately
following the month in which such fees were collected by the Company and on the 45th day
following the date on which this Agreement shall terminate or expire. An itemized breakdown (in
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form and substance reasonably satisfactory to the Village) of such fees shall be included with the
quarterly payment. The Village will have the opportunity to request further information relating
to such quarterly payments, and the Company will comply with each such reasonable request
within ten (10) business days following the delivery thereof.
In the event any franchise fee payment amount is not made on or before the
required date, the Company shall pay additional compensation and interest charges computed from
the due date, compounded daily, equal to 18 % per annum during the period such unpaid amount
is owed.
Except as otherwise provided by law, no acceptance of payment shall be
construed as an accord that the amount paid is, in fact, the correct amount, nor shall such
acceptance of payment be construed as a satisfaction or release of any claim the Village may have
for further or additional sums, provided, however, that payment shall be deemed final upon the
completion of any audit pursuant to Section 7.01 and the Village's written acceptance of such an
audit's result.
As used in this Agreement, the term "gross revenues" ,with respect to each
twelve-month period ending on December 31, shall mean the aggregate gross revenues of the
Company from the operation of the Cable System to provide cable service determined in
accordance with generally accepted accounting principles, derived from all sources relating to
arising out of, or including the provision of cable programming or cable service (or both) by the
• Company.
For the purpose of determining "gross revenues", gross revenues shall include,
but not be limited to, fees charged subscribers for any optional premium, per-channel or per-
program service or pay-per-view service; fees charged subscribers for or in respect of any tier of
cable service; and all other fees, payments, charges, or other consideration received by the
Company from each cable subscriber, from the provision of any cable service and/or from any
cable programming source whatsoever, including but not limited to, (i) basic tier service and
upper tier programming service; (ii) installation, disconnection, reconnection, additional outlet,
and change-in-service fees; (iii) leased access fees; (iv) fees, payments, charges or other
consideration received by the Company from cable subscribers with respect to cable programming
(including cable digital radio program providers) delivered to the Company by whatever means;
(v) revenues derived by the Company from the operation or rental of its studio production
facilities and studio production equipment for the benefit of or to the persons having substantial
contracts within the Village; (vii) any revenue received by the Company through any means which
is intended to have the effect of avoiding the payment of compensation that otherwise would have
been paid to the Village hereunder; (viii) revenues derived from advertising on the Cable System.
(ix) revenues derived from program guides and the sale or carriage of other cable-related services;
(x) revenues derived from home shopping and bank-at-home channels; (xi) 50 % of intereet
services;
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Gross revenue shall not include, to the extent consistent with generally accepted
• accounting principles, (i) bad debt write-offs; (ii) fees, payments, charges or other consideration
received by the Company from the provision of direct-to-home satellite services to customers
within the Village; (iii) Late fees; (iv) Any tax, fee or assessment imposed by a governmental
entity on any cable subscriber, (but not any such fee or tax imposed on the Company) and
provided further that gross revenues shall not adjusted to exclude any net income, ad valorem,
payroll, employment, severance, stamp, premium, or windfall profits tax, alternative or add-on
minimum tax or any other tax, fee, assessment or charge of any kind whatsoever, or any interest
and any penalty thereon, addition to tax or additional amount imposed by any governmental
authority responsible for the imposition of any such tax with respect to the Company.
Nothing in this Agreement shall be construed to limit any authority of the
Village to impose tax, fee, or assessment of general applicability. By way of illustration and not
limitation, to the extent permitted by applicable law, the Village may impose a tax, fee, or other
assessment on any person (other than a cable operator) with respect to Cable Service or other
communications service provided by such person over a Cable System for which charges are
assessed to subscribers but not received by the cable operator.
Consistent with applicable law, the franchise fee payments required by this
agreement shall be in addition to any and all taxes of a general nature and not applicable solely
to cable television operations within the Village or other fees or charges which the Company shall
• be required to pay to the Village 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 the Company. The Company
shall not have or make any claim for any deduction or other credit of all or part of the amount of
said Franchise fee payments from or against any of said Village taxes or other fees or charges
which the Company is required to pay to the Village, except as required by law. The Company
shall not apply or seek to apply all or any part of the amount of said Franchise fee payments as
a deduction or other credit from or against any of said Village taxes or other fees or charges, each
of which shall be deemed to be separate and distinct obligations of the Company. Nor shall the
Company apply or seek to apply all or any part of the amount of any said taxes or other fees or
charges as a deduction or other credit from or against any of its Franchise fee obligations, each
of which shall be deemed to be separate and distinct obligations of the Company.
B. Adelphia Communications shall provide the Village with a corporate guaranty
of the Company's financial obligations to the Village pursuant to this Section 9.01. The form of
this guaranty shall be mutually acceptable to the Village, and Adelphia Communications
Corporation.
C. The company shall provide free of charge CATV cable service and Internet
subscription service to each facility owned, operated, or leased by the Village. Company shall not
be required to provide CATV Premium Service to such sites. The cost of providing such service
shall not be deducted from any franchise fee imposed under this Franchise.
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• 9.02 Violations of Franchise.
A. Whenever the Village finds that Company has allegedly violated one (1) or
more terms, conditions or provisions of this Franchise, a written notice shall be given to
Company. The written notice shall describe in reasonable detail the alleged violation so as to
afford Company an opportunity to remedy the violation. Company shall have thirty (30) days
subsequent to receipt of the notice in which to either correct the violation or diligently be acting
toward correction of the problem. Company may, within ten (10) business days of receipt of
notice, notify the Village that there is a dispute as to whether a violation or failure has, in fact,
occurred. Such notice by Company to the Village shall specify with particularity the matters
disputed by Company and shall stay the running of the above-described time.
1. The Village shall hear Company's dispute at a regularly or specially scheduled meeting.
Company shall have the right to subpoena and cross-examine witnesses. The Village shall
determine if Company has committed a violation and shall make written findings of fact relative
to its determination. If a violation is found, Company may petition for reconsideration.
2. If after hearing the dispute the claim is upheld by the Village, Company shall have ten
(10) business days from such a determination to remedy the violation or failure.
B. The time for Company to correct any alleged violation may be extended by the
• Village if the necessary action to correct the alleged violation is of such a nature or character to
require more than thirty (30) days within which to perform provided Company commences the
corrective action within the thirty (30) day period and thereafter uses reasonable diligence to
correct the violation.
C. In accordance with the procedures set forth in this Section 9.02:
1. In the event of a failure to complete the system construction or
reconstruction, unless the Council specifically approves the resulting delay or default by motion
or resolution, due to the occurrence of conditions beyond the Company's control, Company shall
pay One Hundred Dollars ($100.00) per day for each day, or part thereof, the deficiency
continues.
2. In the event of a failure to provide upon written request, data, documents,
reports, information, or to cooperate with the Village during an application process or cable
system review, Company shall pay Fifty Dollars ($50.00) per day, or part thereof, each violation
occurs or continues.
3. In the event of a failure to test, analyze and report on the performance of
the system following a written request pursuant to this Article, Company shall pay to the Village
One Hundred Dollars ($100.00 per day for each day, or part thereof, that such noncompliance
• 13
• continues.
4. In the event of a failure to provide in a continuing manner the types of
services proposed in the accepted application, unless the Council specifically approves for
Company a delay or change, or the Company has obtained modification of its obligation under
Section 625 of the Cable Communications Policy Act of 1984; the Company shall pay to the
Village One Hundred Dollars ($100.00) per day for each day or part thereof, that each
noncompliance continues.
5. In the event that forty-five (45) days following adoption of a resolution by
the Village Council determining a failure of the Company to comply with operational,
maintenance or technical standards, the Company shall pay to the Village One Hundred Dollars
($100.00) for each day, or part thereof, that such noncompliance continues.
6. In the event of a failure to provide, upon request, data, documents, reports,
information, or to cooperate with the Village during an application process or Cable System
review, or to materially comply with Subscriber Service provisions contained in Section 8 of this
Franchise, Company shall pay Fifty Dollars ($50.00) per day, or part thereof, for each violation
that occurs or continues.
9.03 Damages and Defense.
• A. Coin an shall indemni defend and hold harmless the Villa e its a ents an
P Y ~', g, g d
employees for all damages and penalties, at all times during the term of this Franchise, as a result
of Company's negligent acts or omissions relating to its operation of the System. These damages
and penalties shall include, but shall not be limited to, damages arising out of personal injury,
property damage, copyright infringement, defamation, antitrust, errors and omission, theft, and
fire. These damages and penalties shall not include damages arising out of any negligent or
malicious act or omission on the part of the Village, its employees, agents or licensees.
B. In order for the Village to assert its rights to be indemnified, defended, or held
harmless, the Village must:
1. Promptly notify Company of any claim or legal proceeding which gives rise to such
right;
2. Afford Company the opportunity to participate in and fully control any
compromise, settlement or other resolution or disposition of such claim or proceeding; unless,
however, the Village, in its sole discretion, determines that its interests cannot be represented in
good faith by Company in which case the grantee shall be excused from any further obligation to
indemnify the Village; and
•
14
• 3. Fully cooperate with the reasonable requests of Company, at Company's expense,
in its participation in, and control, compromise, settlement or resolution or other disposition of
such claim or proceeding subject to paragraph (2) above.
9.04 Liability Insurance.
A. Company shall maintain, throughout the term of the Franchise, liability
insurance insuring Company and the Village with regard to all damages mentioned in paragraph A
of Section 9.03 hereof, in the minimum amounts of:
1. One Million Dollars ($1,000,000.00) for bodily injury or death to any one (1) Person;
2. Three Million Dollars ($3,000,000.00) for bodily injury or death resulting from any
one accident;
3. Three Million Dollars ($3,000,000.00) for all other types of liability.
B. Company shall provide the Village with copies of evidence of insurance
providing the coverage required by Paragraph A. Insurance shall be written with a Company or
companies acceptable to the Village Finance Director and the Village Attorney.
C. In the event of cancellation or material chap e in the above covera e the
g g,
Company will give forty-five (45) days' written notice of cancellation or material change to
Village of Tequesta.
D. Company shall maintain Workers' Compensation insurance as required by State
law.
9.05 Villa e's Right to Revoke. In addition to all other rights which the Village has
pursuant to law or equity, the Village reserves the right to suspend, revoke, terminate or cancel
this Franchise, and all rights and privileges pertaining thereto, in the event that:
A. Company materially breaches this Franchise including, but not limited to
any of the following circumstances each of which shall constitute a material breach of the
Franchise:
1. If the franchise was fraudulently obtained.
2. If the franchisee should default in the performance of any material obligations under
the Agreement or the ordinance under which this franchise is granted. Within thirty (30) days'
• 15
• written notice thereof to the Franchisee, the Franchisee shall be afforded the opportunity to cure
such defects.
3. If the Franchisee should fail to provide or maintain in full force and effect the
liability and indemnification coverages, or the performance bonds or equivalent as required
herein.
4. The Franchisee attempts to dispose of any of the facilities or property of its cable
communications system to prevent the Village from recovering any payments due or any losses
or damages arising out of the franchisee.
5. The Franchisee has transferred or has attempted to transfer ownership or control
of the franchise without necessary prior approval of the Village.
6. The Franchisee attempts to evade any material provision of this article or franchise
by a pattern of fraud or deceit; or
B. Company becomes insolvent, unable or unwilling to pay its debts, or is
adjudged as bankrupt and the Franchisee's creditors or Trustee in Bankruptcy do not agree to
fulfill and be bound by all requirements of this Franchise upon request by the Village.
9.06 Revocation Procedures. In the event that the Village determines that Company has
• violated any material provision of the Franchise, or any material applicable federal, state or local
law, the Village may make a written demand on Company that it remedy such violation and that
continued violation may be cause for revocation. If the violation, breach, failure, refusal, or
neglect is not remedied within thirty (30) days following such demand or such other period as is
reasonable, the Village shall determine whether or not such violation, breach, failure, refusal or
neglect by Company is due to acts of God or other causes which result from circumstances beyond
Company's control. Such determination shall not unreasonably be withheld.
A. At Company's option, a public hearing shall be held and Company shall be
provided with an opportunity to be heard upon fourteen (14) days written notice to Company of
the time and the place of the hearing. The causes for pending revocation and the reasons alleged
to constitute such cause shall be recited in the notice. Said notice shall affirmatively recite the
causes that need to be shown by the Village to support a revocation.
B. If notice is given and, at Company's option, after a full public proceeding is
held, the Village determines there is a violation, breach, failure, refusal or neglect by Company,
the Village shall direct Company to correct or remedy the same within such reasonable additional
time, in such manner and upon such reasonable terms and conditions as Village may direct.
C. If after a public hearing it is determined that Company's performance of any
of the terms, conditions, obligations, or requirements of Franchise was prevented or impaired due
16
• to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform
shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof,
provided Company has notified Village in writing within thirty (30) days of its discovery of the
occurrence of such an event. Such causes beyond Company's reasonable control or not
reasonably foreseeable shall include, but shall not be limited to, acts of God, civil emergencies
and labor strikes.
D. If, after notice is given and, at Company's option, a full public proceeding is
held, the Village determines there was a violation, breach, failure, refusal or neglect, then the
Village may declare, by resolution, the Franchise revoked and canceled and of no further force
and effect unless there is compliance within such period as Village may fix, such period not to be
less than thirty (30) days.
E. The issue of revocation shall automatically be placed upon the Village Council
agenda at the expiration of the time set by it for compliance. The Village then may terminate
Franchise forthwith upon fmding that Company has failed to achieve compliance or may further
extend the period, in its discretion.
F. If the Village, after notice is given and, at Company's option, a full public
proceeding is held and appeal is exhausted, declares the Franchise breached, the parties may
pursue their remedies pursuant to Franchise or any other remedy, legal or equitable. Company
may continue to operate the system until all legal appeals procedures have been exhausted.
• SECTION 10. FORECLO RE AND RECEIVERSHIP .
10.01 Foreclosure. Upon the foreclosure or other judicial sale of the system, Company
shall notify the Village of such fact and such notification shall be treated as a notification that a
change in control of Company has taken place.
10.02 Receivership. The Village shall have the right to cancel this Franchise subject
to any applicable provisions of state law, including the Bankruptcy Act, ninety (90) days after the
appointment of a receiver or trustee to take over and conduct the business of Company, whether
in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of said ninety (90) days, or unless:
A. Within ninety (90) days after his election or appointment, such receiver or
trustee shall have complied with all the material provisions of this Franchise and remedied all
defaults thereunder; and,
B. Such receiver or trustee, within said ninety (90) days, shall have executed an
agreement, duly approved by the Court having jurisdiction in the premises, whereby such receiver
or trustee assumes and agrees to be bound by each and every provision of this Franchise.
r
17
• SECTION 11. REMOVAL. TRANSFER AND PURCHASE.
11.01 Removal After Revocation or Expiration.
A. At the expiration of the present and all subsequent renewal terms for which the
Franchise is granted, or upon its revocation, as provided for, Company shall have the right to
remove, at Company's expense, all or any portion of the System from all streets and public
property within the Village. In so removing the System, Company shall refill and compact at its
own expense, any excavation that shall be made and shall leave all streets, Public Property and
private property in as good a condition as that prevailing prior to Company's removal of the
System, and without affecting, altering or disturbing in any way electric, telephone or utility,
cables wires or attachments. The Village, or its delegation, shall have the right to inspect and
approve the condition of such streets and public property after removal.
B. If Company has failed to commence removal of the System, or such part thereof
as was designated within thirty (30) days after written notice of removal is given, or if Company
has failed to complete such removal within a reasonable time year after written notice of removal
is given, the Village shall have the right to exercise one of the following options:
1. Declare ,contingent upon payment to Company of fair market value for the
System, all right, title and interest to the System to be in the Village or its delegator with all
rights of ownership including, but not limited to, the right to operate the System or transfer the
• System to another for operation by it; or
2. Cause the System, or such part thereof as the Village shall designate, to be removed
at no cost to the Village. The cost of said removal shall be recoverable from the indemnity and
penalty section provided for in the Franchise, or from Company directly.
11.02 Sale or Transfer of Franchise.
A. This Franchise shall not be sold, assigned or transferred, either in whole or in
part, or leased or sublet in any manner, nor shall title thereto, either legal or equitable, or any
right, interest or property therein, pass to or vest in any Person without full compliance with the
procedure set forth in this section.
B. The provisions of this section shall only apply to the sale or transfer of all or
a majority of Company's assets, merger (including any parent and its subsidiary corporation),
consolidation, or sale or transfer of stock in Company so as to create a new controlling interest.
1. The parties to the sale or transfer shall make a written request to the Village for
its approval of a sale or transfer. A transfer fee of One Thousand Five Hundred Dollars
($1,500.00) shall be made payable to the Village and be furnished with any request for sale,
• 18
• assignment or transfer.
2. The Village shall act on the request referenced above within the 120 day time
period.
3. If a public hearing is deemed necessary pursuant to (2) above, such hearing shall
be commenced within thirty (30) days of such determination and notice of any such hearing shall
be given fourteen (14) days prior to the hearing by publishing notice thereof. The notice shall
contain the date, time and place of the hearing and shall briefly state the substance of the action
to be considered by the Village.
4. Within thirty (30) days after the closing of the public hearing, the Village shall
approve or deny in writing the sale or transfer request.
C. In reviewing a request for sale or transfer pursuant to paragraph (A) above, the
Village may only inquire into the legal, technical, character and financial qualifications of the
prospective controlling party, and Company shall assist the Village in so inquiring. Upon a
demonstration of the transferee's qualifications, as set forth above, the Village shall approve the
sale/transfer. The Village shall not unreasonably delay or withhold its approval. In no event shall
a transfer or assignment of ownership or control be approved without the transferee becoming a
signator to this Franchise. For purposes of this section 11.02, no assignment, transfer or sale shall
occur when the franchise is transferred or sold to a Company owned, managed or controlled by
• Adelphia Communications Corporation, any of its subsidiaries, John J. Rigas or any member of
his immediate family or the assets or stock of the Company are transferred to a financial
institution as security for refmancing purposes, provided, however, that Company shall reasonably
believe that such transfer or sale shall not materially adversely affect the ability of the transferee
to comply with the provisions of this Franchise.
SECTION 12. RIGHTS OF INDIVIDUALS PROTECTED.
12.01 Discriminatory Practices Prohibited. Company shall not deny service, deny access,
or otherwise discriminate against subscribers, programmers or general citizens on the basis of
race, color, religion, national origin, sex, or age. Company shall comply at all times with all
other applicable federal, state and Village laws, and all executive and administrative orders
relating to non-discrimination.
12.02 Subscriber Privacy. Company shall comply with all privacy provisions of Section
631 of the Cable Act, as amended.
SECTION 13. MISCELLANEOUS PROVISIONS.
13.01 Compliance with Laws. Company and the Village shall conform to all state and
federal laws and rules regarding cable television as they become effective, unless otherwise stated.
• 19
• Company shall also conform during the entire term of the Franchise with all the Village
ordinances, resolutions, rules, regulations, orders and requests heretofore or hereafter adopted that
do or do not apply specifically to the provision of Cable Service that are not preempted by federal
law.
13.02 Compliance with Federal. State and Local Laws. If any term, condition or
provision of this Franchise or the application thereof to any Person or circumstance shall, to any
extent, be held to be invalid or unenforceable, the remainder hereof and the application of such
term, condition or provision to Persons or circumstances other than those as to whom it shall be
held invalid or unenforceable shall not be affected thereby, and this Franchise and all the terms,
provisions and conditions hereof shall, in all other respects, continue to be effective and to be
complied with. In the event that such law, rule or regulation is subsequently repealed, rescinded,
amended or otherwise changed so that the provision which had been held invalid or modified is
no longer in conflict with the law, rules and regulations then in effect, said provision shall
thereupon return to full force and effect and shall thereafter be binding on Company and the
Village.
13.03 Administration of Franchise.
A. The Village shall have continuing regulatory jurisdiction and supervision over
the System and the Company's operation under the Franchise. The Village may issue such
reasonable rules and regulations concerning the construction, operation and maintenance of the
• System as are not inconsistent with the provisions of the Franchise.
B. Company shall construct, operate and maintain the System subject to the
supervision of all the authorities and agents of the Village who have jurisdiction in such matters
and in strict compliance with all laws, ordinances, departmental rules and regulations affecting
the system.
C. The System and all parts thereof shall be subject to the right of periodic
inspection by the Village provided that such inspection shall not unreasonably interfere with the
operation of the System and such inspections take place during normal business hours.
13.04 Miscellaneous Violations.
A. In accordance with applicable law, from and after the acceptance of the
Franchise, it shall be unlawful for any Person to establish, operate or to carry on the business of
distributing to any persons in the Village any television signals or radio signals by means of a
System unless a Franchise therefor has first been obtained pursuant to the provisions of an
ordinance, and unless such Franchise is in full force and effect.
B. In accordance with applicable law, from and after the acceptance of the
Franchise, the Village shall not allow any Person to construct, install or maintain within any street
• 20
• in the Village, or within any other public property of the Village, or within any privately owned
area within the Village which has not yet become a public street but is designated or delineated
as a proposed public street on any tentative subdivision map approved by the Village, or the
Village's official map or the Village's major thoroughfare plan, any equipment or facilities for
distributing any television signals or radio signals through a System, unless a Franchise
authorizing such use of such street or property or areas has first been obtained.
13.05 Emergency Use. In the case of any emergency or disaster, Company shall, upon
request of the Village, make available its System and related facilities to the Village for emergency
use during the emergency or disaster period. Specifically the Company shall provide and video
override on all channels for transmission of emergency messages, such video override being in
the form of a "crawl" information to be Superimposed on all channels (except where such
insertion is prohibited by law).
13.06 Construction. This Franchise shall be construed and enforced in accordance with
the substantive laws of the State of Florida and without reference to its principals of conflicts of
law.
13.07 Captions. The paragraph captions and headings in this Franchise are for
convenience and reference purposes only and shall not affect in any way the meaning of
interpretation of this Franchise.
• 13.08 Calculation of Time. Where the performance or doing of any act, duty, matter,
payment or thing is required hereunder and the period of time or duration for the performance or
during thereof is prescribed and fixed herein, the time shall be computed so as to exclude the first
and include the last day of the prescribed or fixed period or duration of time. When the last day
of the period falls on Saturday, Sunday or a legal holiday, that day shall be omitted from the
computation.
SECTION 14. EFFECTIVE DATE: PUBLICATION AND TIME OF ACCEPTANCE.
14.01 Publication: Effective Date. This Franchise shall be signed by the Mayor or acting
Mayor and attested by the Village Clerk of the Village. The Franchise shall be published in
accordance with the requirements of Village and state law and shall take effect upon acceptance
by Company.
14.02 Time of Acceptance: Incorporation of Proposal: Exhibits.
A. Company shall have thirty (30) days from the date of adoption of this Franchise
to accept this Franchise. Such acceptance by Company shall be deemed the grant of this Franchise
for all purposes. In the event acceptance does not take place within thirty (30) days or such other
time as the Village might allow, this Franchise shall be null and void.
21
•
B. Upon acceptance of this Franchise, Company shall be bound by all the terms
and conditions contained herein. Company shall provide all services and offerings specifically
set forth herein to provide Cable Services within the Village.
VILLAGE OF TEQUESTA
SOUTHEAST FLORIDA CABLE INC.
,~ ~ L
AT'T'EST: TEST:
•
DATE: ~/ 6 / ,~_
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DATE: ~ f~/
22