R05-125
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1 RESOLUTION NO. R05 - r a 5
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3 A RESOLUTION OF THE CITY COMMISSION OF THE
4 CITY OF BOYNTON BEACH, FLORIDA, TO CONSENT
5 TO ASSIGNMENT AND CHANGE OF CONTROL AND
6 CONSENT TO ASSIGNMENT OF CABLE SYSTEM AND
7 FRANCHISE; AND PROVIDING AN EFFECTIVE DATE
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10 WHEREAS, cable television franchises have been granted by the City of Boynton
11 Beach, FL ("Franchise Authority") to Adelphia Cable Partners, L.P., National Cable
12 Acquisition Associates, L.P. and Leadership Acquisition, L.P. ("Franchisee-I") and to
13 Adelphia Cablevision of West Palm Beach, LLC ("Franchisee-2"). Franchisee-l are entities
14 that are indirect subsidiaries of Adelphia Communications Corporation ("Adelphia"), and the
15 Rigas Family had an ownership interest in Franchisee-2; and
16 WHEREAS, Adelphia is currently in Chapter 11 bankruptcy proceedings; and
17 WHEREAS, pursuant to an April 25, 2005 U.S. Government forfeiture agreement
18 with the Rigas family and an April 25, 2005 settlement agreement with Adelphia, any
19 remaining Rigas family ownership interest in Franchisee-2 will be terminated and transferred
20 by the U.S. Government to Adelphia (described as the "Government Settlements"); and
21 WHEREAS, on May 20, 2005 the United States Bankruptcy Court for the Southern
22 District of New York issued a written decision approving the Government Settlements; and
23 WHEREAS, pursuant to an Asset Purchase Agreement dated April 20, 2005 between
24 Adelphia and Time Warner NY Cable LLC ("TWNY"), the right to purchase the Franchisee-
25 l's cable system will be assigned by TWNY to a wholly owned subsidiary of TWNY, Cable
26 Roldco Exchange II LLC which will purchase the cable system and franchises (the "Adelphia
27 Transaction"); and
28 WHEREAS, pursuant to an Exchange Agreement dated April 20, 2005 between Time
29 Warner Cable Inc. and Comcast Corporation ("Comcast"), 100% of the equity securities in
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1 the Comcast subsidiary CAP Exchange I, LLC will be exchanged for 100 percent of the
2 equity securities of Cable Roldco Exchange II LLC whereby that entity will become a 100
3 percent indirect subsidiary of Comcast (the "Exchange Transaction"); and
4 WHEREAS, pursuant to another Asset Purchase Agreement dated April 20, 2005
5 between Adelphia and Comcast, the assets of Franchisee-2 will be acquired by Pamassos,
6 L.P., a wholly-owned subsidiary of Com cast (described as the "Transaction"); and
7 WHEREAS, Franchise Authority has concluded its approval is necessary for the
8 above described Adelphia Transaction, the Exchange Transaction, and the Transaction and
9 has been provided FCC Form 394's and related information for such transactions; and
10 WHEREAS, the Franchise Authority is willing to consent to the Adelphia
11 Transaction, the Exchange Transaction, and the Transaction described above; and
12 WHEREAS, the Dedicated Capacity Agreement executed on _' 2005, by and
13 between the Franchise Authority and Adelphia Cable Partnership, L.P., a Delaware Limited
14 Partnership doing business as Adelphia Communications Corporation (the "Dedicated
15 Capacity Agreement") is a contract entered into in connection with the franchise agreements
16 being transferred.
17 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
18 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
19 SECTION 1. The foregoing recitals are approved and incorporated herein by
20 reference.
21 SECTION 2. The Franchise Authority consents to the Adelphia Transaction
22 described herein.
23 SECTION 3. The Franchise Authority consents to the Exchange Transaction
24 described herein.
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1 SECTION 4. The Franchise Authority consents to the Transaction described herein.
2 SECTION 5. This Resolution shall be deemed effective upon adoption.
3 SECTION 6. This Resolution shall have the force of a continuing agreement with the
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41 Franchisee-l and Franchisee-2 and the Franchise Authority shall not amend or otherwise alter
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5 this Resolution without the consent of the Franchisee-l and Franchisee-2.
6 SECTION 7. This Resolution shall also acknowledge that any franchise agreement
7 transferred pursuant hereto has associated with it the corresponding obligations and benefits
8 set forth in the Dedicated Capacity Agreement.
9 PASSED AND ADOPTED this {).. day of 1t~U-:5r ,2005.
10 CITY OF BOYNTON BEACH, FLORIDA
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17 Ice Mayor "
18 í7~f ~-(
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20 60ner ;;L
21 , é.
22 Commissioner ~
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26 Commissioner
27 ATTEST:
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Re:;o. 05-19.5"
Ora. 05-042-
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT ("Agreement") is made this ~ day of August,
2005, by and between the CITY OF BOYNTON BEACH (the "City") and Adelphia Cable
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Partners, LP, Adelphia Cablevision of West Palm BeactPw, LLC, Leadership Acquisition, LP
and National Cable Acquisition Associates. LP, subsidiaries of Adelphia Communications
COl'p. ("Adelphia" or "Franchisee");
WHEREAS, pursuant to the Cable Communications Policy Act of 1984, as amended, 47
U.S.C. §52l ("Communications Act"), the City may grant or renew a Franchise to construct,
operate and maintain a Cable Television System; and
WHEREAS, the City is authorized to regulate the construction, installation, operation
and maintenance of Cable Television Systems pursuant to federal, state and local law; and
WHEREAS, on June 20, 2000, the Commission adopted Ordinance No. 00-31 entitled
"Cable Systems and Open Video Systems" to update the terms and conditions for the operation
nrCable Systems and the application, procedures and requirements relating to the grant of
Franchises for the construction, installation, operation and maintenance of Cable Systems'
equipment and facilities in the City's public rights-of-way (the "Ordinance"); and
WHEREAS, the franchise agreements held by Adelphia Cable Partners, LP and National
Cahle Acquisition Associates, LP are expired, the franchise agreement held by Adelphia Cablevision
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of West Palm Beach W; LLC expires on JUlY 18, 2008, and the franchise agreement held by
Leadership Acquisition, LP expires on January 2,2009 (collectively "Current Franchises"); and
WHEREAS, the City and franchisee desire to enter into a single franchise agreement
governing aU of Franchisee's cable television system operating in the City; and
WHEREAS, Adelphia desires to replace and supersede the Current Franchises to
construct, instaU, maintain, and operate a Cable System in the City and has applied to the City to
replace such Current Franchises, so that upon its effective date this Franchise shall govern all of
Franchisee's cable system operations in the City and the Current Franchises shall have no further
force or effect; and
WHEREAS, the construction, installation, maintenance, and operation of such a Cable
System involves the use and occupation of the Streets of the City, over which the City exercises
governmental control; and
WHEREAS, the Commission has evaluated Adelphia's application in light of the
requirements of federal and state law and the Ordinance; and
WHEREAS, the Commission has considered all information presented to it by Adelphia,
the City staff, the City's consultants, and the public; and
WHEREAS, based on said information, the Commission has determined that a renewal
of Adelphia's nonexclusive Franchise to construct, install, maintain and operate a Cable System
in the City, subject to the terms and conditions set forth herein and in the Ordinance, is consistent
with the public interest; and
WHEREAS, the City and Adelphia have reached agreement on the terms and conditions
of such a Franchise Agreement.
NOW, THEREFORE, in consideration of the City's renewal of Adelphia's Franchise to
own, construct, install, maintain and operate a Cable System within the City, and to use and
occupy the Streets of the City for that purpose, and in consideration of Adelphia's promise to
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provide Cable Service to residents of the City pursuant to the Ordinance and under the terms and
conditions set forth herein, and in consideration of the promises and undertakings herein, and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Franchise is hereby granted and
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
Section 1. Definitions.
{tc \12 "Section I.Definitions. } Except as otherwise provided specifically herein, the
definitions in Chapter 5 of the City Code shall govern this Agreement. In addition, the following
definitions shaH apply:
A. "Commercially Feasible" shall mean that level of technical performance,
equipment, components and cable services (without reference to the content of the cable service)
which has been developed and demonstrated to be generaHy accepted and used in the cable
industry, excluding (1) "tests" involving new products offered for one year or less, or (2)
products that the Franchisee can demonstrate would not provide a rate of return comparable to
other markets where such products are offered. Nothing herein shall be construed to require a
Franchisee to employ any specific transmission technology or to carry any particular
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programmmg servIces.
B. "Effective Date" shall mean the date upon which this Agreement commences, as
provided in Section 3 hereof.
C. "Franchisee" or "Adelphia" shall mean the legal entities that are signatories to this
Franchise Agreement ("Adelphia"), and their lawful and permitted successors, assigns and
transferees pursuant to Sections 32 and 33 of this Agreement and the Ordinance.
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D. "Franchise Area" shall mean the entire territory within the corporate limits of the
City and as those limits may change from time to time through annexation or contraction during
the term of this Agreement.
E. "Ordinance" shall mean Chapter 5 of the Code of the City of Boynton Beach,
Florida, as such existed on the Effective Date of this Agreement.
Section 2. Grant of Franchise.
Subject to the terms of this Agreement and the Ordinance, the City hereby grants
Franchisee a Franchise for the non-exclusive right and privilege to own, construct, install,
maintain and operate a Cable System within the Franchise Area.
Section 3. Term of Agreement.
A. The Agreement shall commence upon the date that the Ordinance approving this
Agreement is adopted by the City Commission (the "Effective Date"), provided that the
Franchisee has provided to the City within ten (10) days of the Effective Date the written
acceptance required by Section 40 herein, the proof of insurance required by Section 8 herein,
and any and an payments due as of the Effective Date pursuant to this Agreement and the
Ordinance. Franchisee shall provide to the City the security fund as required in Section 10 herein
within fifteen (15) days fol1owing such adoption. Failure to provide the written acceptance, the
proof of insurance, the security fund and the payments as required herein may result in a denial or
delay of the grant.
B. This Agreement shall be for a period of thirteen (13) years commencing from the
Effective Date and shan terminate on August 1,2018, unless otherwise sooner terminated or
otherwise extended in accordance with the terms of this Agreement and the Ordinance.
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Section 4. Non-Exclusive Franchise.
{tc \12 "Section 5. Non_Exclusive License. } The Franchisee's right to use and occupy the
Streets and rights-of-way shal1 be non-exclusive pursuant to Section 5-7 of the Ordinance. The
City reserves the right to grant a similar or other use of said Streets, or any portions thereof, to
any person, including the City, at any time during the term of this Agreement consistent with
Florida Statute 166.046 as in effect on the date hereof.
Section 5. Agreement Subject to Communications Act, State Law and City
Code.
A. This Agreement is subject to and shall be governed by al1 terms, conditions and
provisions of the Communications Act, any amendments thereto, and any other applicable
provision of federal, state or local law of general applicability, existing or hereafter adopted.
B. This Agreement is subject to and shaH be governed by all terms, conditions and
provisions of the Ordinance, as it existed on the Effective Date of this Agreement.
C. Franchisee hereby accepts aH terms and conditions of the Ordinance as they exist
on the Effective Date of this Agreement.
D. In the event of a conflict between this Agreement and the Ordinance, this
Agreement shal1 control as provided herein.
Section 6. Franchisee Subject to Other Laws, Police Power.
A. Franchisee is subject to and agrees to comply with all general1y applicable local,
City, state and federal laws, ordinances, rules, regulations and orders, existing or hereafter
lawfuHy adopted. The City and the Franchisee agree to comply with al1 applicable Florida
Statutes.
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B. The Franchisee shall at all times be subject to al1 lawful exercise ofthe police
power of the City, and this Agreement is not intended to limit or expand the City's exercise of
such power in any way.
C. The parties expressly acknowledge that the Franchisee's obligations under this
Agreement may not be unilaterally altered, whether by resolution, proclamation, or amendment
of the Ordinance unless otherwise stated herein or expressly permitted by applicable federal or
state law.
Section 7. Reservation of Rights.
A. The Franchisee is subject to and agrees to comply with all applicable federal, state
and local law of general applicability subj ect to Section 6( c) above.
B. The City reserves the right to acquire, purchase, own and/or operate a Cable
System to the extent permitted by applicable state and federal law.
Section 8. Insurance.
A. Each Franchisee shall obtain and maintain insurance of the types and minimum
amounts required in Section 5-10(2) of the Ordinance in such a manner as to comply with each
and every requirement of that section, provided that on a combined basis the total insurance
obligations of all Franchisees does not exceed the minimum requirements for a single Franchisee.
B. The Franchisee shal1 provide proof to the City of compliance with this section as
of the effective date of this Franchise, or as otherwise agreed to in writing by the City Manager or
his designee. Should Franchisee fail to provide the City with proof of insurance as required
herein, Franchisee shal1 be subject to fines and other enforcement remedies, including but not
limited to revocation pursuant to the procedures set forth in Section 380fthis Agreement.
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C. In the event of any request for modifications or transfers of the Franchise,
Franchisee shaH provide proof to the City of compliance with this Section no later than thirty
days (30) after the effective date the relevant transaction is completed. Should Franchisee fail to
provide the City with proof of insurance as required in this Subsection (C), Franchisee shall be
subject to fines and other remedies, including a resolution denying the transaction or revoking
any prior conditional approval requested by the Franchisee, pursuant to Section 5-24 of the
Ordinance. D. Al1 certificates of insurance shall be filed and maintained with the City Manager.
The certificates of insurance filed pursuant to this subsection must contain a statement that the
City shall receive at least thirty (30) days advance written notice of any cancellation of insurance.
Section 9. Indemnification of the City.
A Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the
City, its officials, boards, commissions, commissioners, agents, and employees, against any and al1
claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and
expenses arising out of the willful or negligent acts or omissions of the Franchisee or its officers,
agents, employees or contractors relating to construction, maintenance or operation of its Cable
System, and the conduct of Franchisee's business in the City; provided, however, that Franchisee's
obligation hereunder shal1 not extend to any claims caused by the willful misconduct or negligence
of the City, its officials, boards, commissioners, agents or employees, or to claims arising from
Franchisee's provision of Access Channels for public, educational and/or governmental use pursuant
to a Franchise granted hereunder, to the extent such claims relate to programming and content on
such channels, over which Franchisee has no editorial control nor exercises administrative control.
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This provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in
defending against any such claim, suit or proceedings, and claims arising out of copyright
infringement or a failure by the Franchisee to secure consents from the owners, authorized
distributors, or providers of programs to be delivered by the Cable System, claims arising out of
Section 638 of the Communications Act, 47 U.S.C. 558, and claims against the Franchisee for
invasion of the right of privacy, defamation of any Person, firm or corporation, or the violation or
infringement of any copyright, trade mark, trade name, service mark or patent, or of any other right
of any Person, firm or corporation. If any such claim arises, the Franchisee shal1 have the obligation
and duty to defend the City and any other indemnified party hereunder; provided, however,
Franchisee may not agree to any settlement of claims affecting the City without the City Attorney's
approval. If the City Attorney finds that separate representation to ful1y protect the interests of the
City is necessary, Franchisee shall consult with the City Attorney on counsel that is acceptable to the
City Attorney. If Franchisee is unwilling or unable to select counsel acceptable to the City Attorney,
whose acceptance shall only be withheld for good cause shown, Franchisee shall pay al1 actual and
reasonable expenses incurred by the City in defending itself with regard to any action, suit or
proceeding subject to this indemnification. The City's expenses shall include all out of pocket
expenses, attorney's fees and costs ofthe City attorney or assistants, or any City employees, outside
attorneys or other agents. Notwithstanding the foregoing, Franchisee shal1 not be required to
indemnify the City pursuant to this Ordinance or a Franchise Agreement for actions relating to
public, government and education access programming decisions outside of Franchisee's control or
for the City's use of the Cable System or the use of public, government and education Access
Channels, facilities or funding.
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The City agrees to notify Franchisee, in writing, within twenty (20) days of the City
receiving notice of any issue that may require indemnification pursuant to this Section. To the
extent this Section requires the consent of the City Attorney, such consent shal1 not be
unreasonably withheld. {tc \12 "Section 11. Security Fund. }
Section 10. Security Fund.
A. In compliance with Section 5-10(3) and (4) of the Ordinance, each Franchisee
shall provide to the City a performance bond in the an amount that totals on a combined basis for
an Franchisees two hundred thousand dol1ars ($200,000) to ensure the faithful performance of al1
provisions of this Agreement, the Ordinance, and all applicable local, state and federal law. The
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bond shall be in a form and with a surety reasonably acceptable to the City's Risk Manager.
B. If thirty (30) calendar days after written notice from the City Franchisee fails to
pay to the City any fees or taxes due and unpaid, or any liquidated damages owed pursuant to the
Ordinance, or this Agreement, damages, costs or expenses that the City has incurred by reason of
any act, omission or default of Franchisee in connection with this Agreement or the Ordinance,
the City may apply to the surety for withdrawal of that amount, plus interest and any costs. Upon
such withdrawal or claim, the City shall notify Franchisee in writing of the amount and date of
the withdrawal at least ten (10) business days prior to a withdrawal. Any action by the City
Manager or designee to draw upon the performance bond hereunder may be appealed to the City
Commission for hearing and determination, subject to the terms set forth in the Ordinance.
C. The rights reserved to the City under this section are in addition to all other rights
of the City, whether reserved in this Agreement or the Ordinance or authorized by other law, and
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no action, proceeding or exercise of a right with respect to the performance bond will affect any
other right the City may have.
Section 11. Construction Bond.
In compliance with Section 5-10(3) of the Ordinance, prior to any significant Cable
System construction, upgrade, rebuild or other significant work in the Streets ofthe City,
Franchisee shall post a construction bond in favor of the City hereof in the amount of fifty
percent (50%) of the cost of such construction or two hundred fifty thousand dollars ($250,000),
whichever is less. Such bond shall be subject to the approval of the City's Risk Manager, such
approval to be not unreasonably withheld. The City shal1 be provided with thirty (30) days prior
notice of intent to cancel or not renew the bond. The bond shall be maintained until such
construction is completed and activated and for a period of twelve (12) months thereafter.
Franchisee shall notify the City Manager in writing when it believes the construction has been
completed and the date on which it believes the bond may be eliminated pursuant to this Section
11. Unless the City reasonably determines that construction is not complete or there exists a
potential claim or demand against the Bond, the City agrees to return the bond to the Franchisee
or to sign such documents as are required to release the bond.
Section 12. Use of Streets; Use of City Private Property.
A. Franchisee agrees at an times to comply with and abide by all generany applicable
and lawful provisions of the City Code, the Ordinance, this Agreement, and applicable state,
local and federal law with respect to use of the Streets
B. As required by the City, and upon receipt of written notice, Franchisee shall
remove, relocate, replace or modify, at its own expense to the extent other Persons with facilities
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in the Streets are so required (except as otherwise required by applicable law) its facilities within
any public Streets as set forth in the Ordinance, provided, however, that should the City require
such removal, relocation, replacement or modification in order to construct and instal1 its own
competitive Cable System, then the City shaH pay the expense. If funds are available to any
similarly situated Person using the Streets for the purpose of defraying the cost of any of the
foregoing, the City shall reimburse or cooperate with the Franchisee in the same manner in which
other similarly situated Persons affected by the requirement are reimbursed, as set forth herein
and as provided by state or federal law. If funds are available for the purpose of defraying the
above costs by federal or state law, the City shal1 cooperate in assisting Franchisee in obtaining
such funds. If funds are available for the purpose of defraying the above costs under local law,
Franchisee shall be entitled to reimbursement if such local law includes cable operators in the
reimbursement. If the funds are controlled by another governmental entity, the City shall make
application for such funds on behalf of the Franchisee if, as a matter of law or regulation,
Franchisee is not permitted to apply on its own behalf.
C. In cases of new construction or property development where utilities are to be
placed underground, the City agrees to require as a condition of issuing a permit for open
trenching to any developer or property owner that such developer or property owner give
Franchisee at least thirty (30) days prior notice of such construction or development, and of the
particular dates on which open trenching will be available for Franchisee's installation of conduit,
pedestals and/or vaults, and laterals to be provided at Franchisee's expense. Franchisee shal1 also
provide specifications as needed for trenching. Costs of trenching and easements required to
bring service to the development shaH be borne by the developer or property owner; except that if
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Franchisee fails to instal1 its conduit, pedestals and/or vaults, and laterals within five (5) working
days of the date the trenches are available, as designated in the notice given by the developer or
property owner, then should the trenches be closed after the five-day period, the cost of new
trenching is to be borne by Franchisee.
Section 13. Minimum Facilities & Services.
A. As of the Effective Date hereof, the relevant Cable System will, at minimum, pass
frequencies of at least 750 MHz and will be fully operational throughout the entire City.
B. As of the Effective Date, the Franchisee shall provide to the City a complete set of
strand System maps and such reasonable documentation as may be required by the City.
C. Maintain upstream Video Channel capacity through return lines from City Hall to
the Franchisee's headend and in the amount necessary to satisfy the PEG Access Channel
requirements set forth in Section 16 hereof.
D. Franchisee's Cable System shal1 transmit to Subscribers any stereo signals and
any other form of advanced television signals, including but not limited to high-definition
television (to the extent that Franchisee has the obligation to do so pursuant to federal must-carry
rules or the requisite authority pursuant to a valid retransmission consent agreement with the
applicable broadcast station) received and carried by the Cable System pursuant to applicable
federal law.
E. Franchise shal1 fully comply with all applicable laws concerning handicapped or
disabled persons.
Section 14. Technological Improvements to System.
A. State-of-the-Art.
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1. Within thirty (30) days after the Fifth Anniversary ofthe effective date of
this Agreement, the Franchisee shall submit a written report to the City upon their request, in a
form reasonably satisfactory to the City Manager, that discusses the Cable System capacity and
Cable Services offered on any ofthe most recently constructed or upgraded Cable Systems
owned and operated by the Franchisee, its parent or Affiliates in Palm Beach County, Florida.
The purpose of this report is to discuss the status of the Cable System in relation to State-of-the-
Art.
2. During the term of this Franchise, Franchisee may agree to make such
technicaHy and Commercially Feasible improvements to its Cable System as may be requested by
the City. If Franchisee believes that a particular improvement requested by the City is not
CommerciaHy Feasible for any reason, it will, upon written request, provide information to the
City supporting its position. If the City and Franchisee disagree as to the Commercial Feasibility
of a particular improvement, the City may provide notice stating that it believes that such an
improvement is appropriate and may consider Franchisee's response during renewal.
(a) The City may, by written notice, require the Franchisee to provide
the functional equivalent of such Cable System capacity or Cable Services that are not then
available on the Cable System in the City but are available within Palm Beach County. Nothing
herein shall be construed to require the Franchisee to employ any specific transmission
technology or to carry any particular programming service.
(b) Upon receipt of such notice, the Franchisee shal1 implement the
same or functional equivalent of such Cable System capacity or Cable Services within twelve
(12) months of receipt of notice, or as otherwise agreed to by the City and the Franchisee. The
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City agrees to provide an extension of such twelve (12) month period upon written request of the
Franchisee for good cause shown, including, but not limited to Force Majeure.
3. Franchisee's failure to upgrade the Cable System pursuant to this section
shal1 result in imposition of fines to be paid by the Franchisee to the City in the amount of not
less than one thousand dollars ($1,000) per violation, per day, or part thereof that the violation
continues after fol1owing the procedures set forth in Section 37 herein and shall be considered in
any renewal proceedings.
B. For any subsequent upgrade or rebuild of the Cable System, Franchisee shall
submit to the City a schedule of its planned cable routing, work areas and pedestal/power supply
locations during the upgrade or rebuild construction process in accordance with the City's
general1y applicable requirements.
C. During any further construction, Franchisee shall provide monthly written updates
and, upon request of the City Manager or designee, meet with the City monthly, or as otherwise
agreed to between the City and Franchisee, to review the progress of the construction of the
Cable System and to coordinate, as may be necessary, to minimize disruption of the rights-of-
way in the City while attempting to avoid delay in the Cable System construction schedule.
D. Franchisee agrees to provide reasonable notice to all Subscribers of any Cable
System upgrade or rebuild and the timing of such through the use of door hangers, direct mail,
and over the Cable System prior to the initiation of and during construction.
Section 15. Institutional Network.
The Franchisee shall provide Institutional Network services to the City in accordance
with the terms ofthe Dedicated Capacity Agreement between the parties, a copy of which is
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attached hereto as Exhibit A. The parties shal1 execute the Dedicated Capacity Agreement
within ten (10) days of the Effective Date of this Franchise Agreement.
Section 16. Access Channels and Facilities.
A. Access Channel Capacity. Upon ninety (90) days written notice, Franchisee
shall provide to the City at least one (1) and a maximum of two (2) activated downstream Access
Channels in accordance with this section and at least one (1) return line and a maximum oftwo
(2) return lines on the Cable System for the exclusive use of the City which the City shall use, in
whole or in part, for video and audio services for non-commercial educational and/or
governmental access use:
1. Upon written request of the City, Franchisee shall provide to the City one
(1) full-time Access Channel ("First Access Channel") to the City within ninety (90) days of the
date of the request. Franchisee shall deliver to the City a second channel for the City's exclusive
use ("Second Access Channel") if, at any time, the First Access Channel is programmed at least
ten (10) hours per day between 8:00 a.m. to 12:00 a.m. for a period of six (6) consecutive weeks
with non-character generated, non-duplicative, non-commercial programming (the
acknowledgement of underwriters and sponsorships shall be considered non-commercial). The
Franchisee shall provide the exclusive use of the Second Access Channel within six (6) months
of receipt of a written request from the City that will include detailed documentation evidencing
the fact that the usage of the First Access Channel has met the criteria set forth above. The
Second Access Channel may, at the City's option, be activated from City Hall, or from such other
location within the City as specified by the City.
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2. The City may elect to carry County or other municipal or educational
programming in al1 or in part on City Access Channels and such programming shal1 be included
as usage under Subsection 1 above as long as such programming is not duplicative of County
programming carried on an entire County Channel that is delivered to Subscribers within the
City. At no time shall Franchisee be obligated to carry more than a total of two (2) Access
Channels. In accordance with federal law, Franchisee will be entitled to use any PEG Access
Channel capacity for the provision of other services at any time such channel capacity is not
being used for PEG access purposes or is not meeting the usage requirements as provided in this
Agreement.
3. Upon 90 day's prior written notice from the City, Franchisee shall cablecast
live all City Commission Meetings over the Cable System.
4. The Franchisee shall not be responsible for the operation, management and
administration of PEG Access, or for providing programming or technical support thereto, except as
otherwise provided in this section.
5. Franchisee's Cable System shall be configured so that any programming
delivered to the Cable System on any return line required hereunder may be delivered
downstream on the Cable System on any of the activated downstream Access Channels to all
Subscribers hereof, as detennined and directed by the City from the access facilities and
equipment located at City Hall, or from such other location within the City designated by the
City, for a total of two return lines.
6. Franchisee shall provide all necessary headend and Cable System
electronic and distribution equipment so that any programming transmitted from City Hall and
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such other origination location designated by the City in accordance with this Agreement may be
transmitted to all Subscribers on any of the Access Channels provided pursuant to this Section
hereof. City Hall and the other origination location designated pursuant to Section 16( a) hereof
will be linked to the headend by the most technically feasible and cost-effective means, as
reasonably approved by the City.
7. Franchisee agrees that all Access Channels will be provided to Subscribers
on the Cable System as a part of the lowest tier of Cable Service and that, if programming
information is supplied to Franchisee by the City in writing, Franchisee will use its best efforts to
publicize such programming on the Access Channels as a part of any ordinary printed program
listings it creates and provides to Subscribers.
8. Franchisee agrees that any and all Access Channels provided pursuant to
this Section 16 shall be provided on the same channel location to all Subscribers in the City. If
Franchisee elects to change the channel location of any City Access Channel, Franchisee shall
provide no less than ninety (90) days notice to the City and thirty (30) days notice to Subscribers
prior to the change and shall advertise any such change consistent with FCC notice requirements.
9. Failure on the part ofthe Franchisee to provide the PEG channels required by
Section 16(A) ofthis Agreement may result in the imposition ofliquidated damages in the amount of
one thousand dollars ($1,000) per day per violation after following the procedures set forth in
Section 37 hereof.
B. Access Capital Grant
1. Consistent with applicable federal law, the Franchisee shall pay the City a
capital grant for PEG equipment, facilities and other capital requirements in the amount of Two
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Hundred Thousand Dollars ($200,000) within thirty (30) days of the Effective Date of this
Franchise. In addition, the Franchisee shall pay the City for PEG capital and other capital
requirements, the amount of Seventy Thousand Dollars ($70,000) per year during each year the
franchise is in effect, payable on the first anniversary of this Franchise and each subsequent
anniversary thereafter throughout the term of this Franchise.
2. The City acknowledges that under FCC rules, the Capital Grant may be
passed through to Subscribers. Franchisee agrees that ifthe Capital Grant is passed through to
Subscribers, such pass through shall apply to all Subscribers, including those Subscribers who
receive Cable Service pursuant to bulk agreements, on an equitable basis.
3. Franchisee hereby agrees that the Capital Grant provided by Franchisee
pursuant to this Section 16 constitutes capital costs which are required by the Agreement to be
incurred by Franchisee for public, educational, or governmental access facilities within the
meaning of Section 622(g)(2)(c) ofthe Communications Act, 47 U.S.c. §542(g)(2)(C); Such
grant shall not constitute a Franchise Fee or tax within the meaning of the Communications Act,
state law, including but not limited to, the Florida Communications Services Tax, the Ordinance,
or this Agreement as of the Effective Date of this Agreement.
Section 17. Service to Public Buildings.
A. Notwithstanding any other provision of the Ordinance, Franchisee shall provide
one cable drop per location (including installation) without charge to each government building
regardless of whether such facility is owned or leased in the Franchise Area that is listed in
Exhibit A of this Agreement or any such building that is located within one hundred twenty-five
(125) feet of Franchisee's coaxial distribution plant, whether now in existence or constructed
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during the term of this Agreement. Such service shall, at minimum, include the basic and
expanded basic tiers, or the equivalent comprising the next level of programming service above
the lowest tier of Cable Service. Service extensions beyond 125 feet shall be at the City's
expense based upon Franchisee's actual costs.
B. Failure on the part of the Franchisee to provide the cable drop and Cable Service
required by Section l7(A) of this Agreement may result in the imposition of liquidated damages
in the amount of five hundred dollars ($500) per day per violation after following the procedures
set forth in Sections 37 and 38 hereof.
Section 18. Service to Schools.
A. Notwithstanding any other provision of the Ordinance, Franchisee shall provide,
without charge, one cable drop per location (including installation) and the basic and expanded
basic tiers (or such equivalent comprising the next level of programming service above the
lowest tier) of Cable Service to all accredited K-12 schools within the City that are located within
one hundred twenty-five (125) feet of Franchisee's coaxial distribution plant, whether now in
existence or constructed during the term of this Agreement. Service extensions beyond 125 feet
shall be at the respective school's expense based upon Franchisee's actual costs.
B. Franchisee shall make arrangements for each school to receive school materials,
to the extent available, for teachers that explain the educational applications of the Franchisee's
Cable Services and programming offered on the Cable System. The materials will be provided to
all connected schools at no cost.
C. Franchisee has established a voluntary initiative to provide, upon request, cable
internet service to all State accredited K-12 schools within the City which receive Cable Service.
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Franchisee intends to provide each of such schools with one outlet of unlimited Internet access,
including the necessary cable modem.
D. The costs related to this Section 18 shall not be offset against Franchise Fees or
taxes or passed through to Subscribers.
Section 19. Commercial Leased Access.
Franchisee shall provide commercial leased Access Channels as required by applicable
law.
Section 20. Emergency Use of Facilities.
A. Franchisee shall at minimum comply with all FCC rules on emergency use of
faciliti es.
B. Franchisee shall provide standby power generating capacity to the Cable System
headend capable of providing at least two (2) hours of emergency power.
Section 21. Lock-out Devices.
Franchisee shall make available at reasonable charge to any residential Subscriber, upon
the request of such Subscriber, a "parental guidance" or "lock-out" device which shall permit the
Subscriber, at his or her option, to eliminate the audio and visual transmissions from any channel
reception to the extent technically feasible.
Section 22. Line Extension Policy.
Upon request and payment of all applicable charges, and provided that the requesting
person gives Franchisee access to hislher premises in order to furnish, maintain and continue to
offer Cable Service to that person, Franchisee shall, throughout the term of this Agreement,
promptly furnish, maintain, and continue to provide all Cable Services distributed over the Cable
20
System to any person at his/her place of residence at which Franchisee has the right to install
equipment and located within the City where such residential location is not receiving Cable
Service by any other franchised cable operator, provided that the number of actual residential
dwelling units to be passed by any requested extension equals or exceeds twenty (20) homes per
mile as measured from the nearest activated point on the Cable System to the furthest location to
be served by the requested extension.
Section 23. Cable Home Wiring Commitments.
Franchisee shall comply with all FCC rules regarding cable home wiring, as amended
from time to time.
Section 24. Franchise Fee.
A. As of the Effective Date hereof, the Florida Communications Services Tax Act
preempts Section 5-8 of the Ordinance. If, however, the Florida Communications Services Tax
Law is amended or repealed so that a local franchising authority is allowed to impose and collect
Franchise fees, then forty five (45) days after the effective date of any such statutory amendment
or repeal, this section of the Agreement will become effective or at such time as stated in said
amendment or repeal of the Florida Communications Services Tax Law. Unless otherwise
provided by law, Franchisee shall collect and remit Franchise fees for the entire period following
the effective date of the aforementioned change in law, even if some collection and payment
must be done in arrears to allow for changes to the billing process. The intent of this section is to
ensure the City is not deprived of any Franchise fees to which it would otherwise be entitled
following any change in applicable state law.
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1. Franchisee shal1 pay the City a Franchise fee of five percent (5%) of
Franchisee's Gross Revenues derived from the operation ofthe Cable System to provide Cable
Services in the City. Franchise fee payments shall be paid on a quarterly basis (January 1,
April 1, July 1 and October 1) no later than forty-five (45) days after the end of each quarter.
Each payment shall be accompanied by a detailed report to the City showing the basis of the
computation.
2. The City shall have the option of increasing the Franchise fee to the
maximum permitted by law following a public hearing where both the Franchisee and public are
al10wed to comment on the impact of the higher fee, and a vote by the City Commission adopting
a resolution to impose the higher fee. Such change shall take effect on the next available billing
cycle in which the higher charge may be placed on Subscribers' bills.
3. Upon reasonable prior written notice, during Normal Business Hours, as
defined in the Ordinance, at Franchisee's principal business office in Palm Beach County, the
City shall have the right to inspect the Franchisee's financial records used to calculate the
Franchisee fees; provided, however, such actual fees are subject to the applicable statute of
limitations.
4. Upon completion of any such inspection by the City, the City shall provide
to the Franchisee a final report setting forth the City's findings in detail, including any and all
substantiating documentation. The Franchisee shall have thirty (30) days from the receipt of the
report to provide the City with a written response, including any substantiating documentation.
Any "Finally Settled Amount(s)" due to the City as a result of such inspection shall be paid to the
City by the Franchisee within thirty (30) days from receipt of written notice of the acceptance of
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such Finally Settled Amount from the City. For purposes of this section, the term "Finally
Settled Amount( s)" shall mean the agreed upon underpayment, if any, to the City by the
Franchisee as a result of such inspection. If the parties cannot agree on a "Finally Settled
Amount", the parties shall submit the dispute to a mutually agreed upon mediator within sixty
(60) days of reaching an impasse. In the event an agreement is not reached at mediation, either
party may bring an action to have the disputed amount determined by a court of law. Once the
parties agree upon a Finally Settled Amount and such amount is paid by the Franchisee, the City
shall have no further rights to audit or challenge the payment for that period unless otherwise
provided by applicable law.
B. Unless otherwise mandated by applicable law, Franchisee expressly agrees
that: (i) the Franchise fee payments to be made pursuant to this section shall not be deemed to be
in the nature of a tax; (ii) such Franchise fee payments shall be in addition to any and all taxes of
a general applicability and not applicable solely to cable television operations within the City or
other fees or charges which Franchisee shall be required to pay to the City or to any state or
federal agency or authority, as required herein or by law, all of which shall be separate and
distinct obligations of Franchisee; (iii) Franchisee shall not have or make any claim for any
deduction or other credit of all or any part of the amount of said Franchise fee payments from or
against any of said City taxes or other fees or charges of general applicability which Franchisee is
required to pay to the City, except as agreed herein or required by law; (iv) Franchisee shall not
apply nor 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 City taxes or other fees or charges of general
applicability, each of which shall be deemed to be separate and distinct obligations of Franchisee;
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(v) Franchisee shall not apply or seek to apply all or any part of the amount of any of said taxes
or other fees or charges of general applicability as a deduction or other credit from or against any
of its Franchise fee obligations, each of which shall be deemed to be separate and distinct
obligations of Franchisee.
Section 25. Reports and Records.
Upon reasonable prior written request of the City Manager or hislher designee, Franchisee
shall furnish the City with all of the information as required under Section 5-26 of the Ordinance,
except those reports required by Section 5-26(2)(B)(3) (unless and until the Florida Simplified
Communications Tax Act is properly amended or repealed). Franchisee hereby expressly agrees
to implement and maintain such practices and procedures as may be necessary to comply with
said obligations.
Section 26. Right to Inspect Financial Records and Facilities.
A. Franchisee shan maintain a complete set of books and records, including plans,
contracts, engineering, statistical, customer and service records at a location in Palm Beach
County, as required by the Ordinance, and accounting and financial records if the Florida
Simplified Communications Tax Act is properly repealed, unless prohibited by applicable law.
B. Throughout the term of this Agreement, the Franchisee agrees that upon receipt
of advance written notice from the City, the Franchisee shan permit any duly authorized
representative of the City to review such of the Franchisee's books and records regarding the
operation of the Cable System and the provision of Cable Service in the City, as are reasonably
necessary to monitor Franchisee's compliance with the provisions of the Ordinance and this
Agreement at the Franchisee's business office in Palm Beach County, during Normal Business
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Hours and without unreasonably interfering with Franchisee's business operations. Such notice
shall specifically reference the subsection of the Agreement that is under review so that the
Franchisee may organize the necessary books and records for easy access by the City. Such
books and records shall include, without limitation, any records required to be kept in a public
file by the Franchisee pursuant to the rules and regulations of the FCC. The Franchisee shall not
be required to maintain any books and records for Agreement compliance purposes longer than
five (5) years, except for written service complaints, which shall be kept for three (3) years.
C. The City shall accord all books and records that it inspects under this section the
degree of confidentiality such books and records are entitled to under federal and state law. To
the extent Franchisee considers any books or records that it is required to produce to be
confidential or otherwise protected from public disclosure, Franchisee shall designate which
documents it views as confidential and proprietary.
D. Franchisee hereby agrees that the City shall have the right to inspect Franchisee's
facilities and property during Franchisee's Normal Business Hours and upon reasonable notice.
Section 27. Customer Service Requirements.
Franchisee agrees to comply with, and to implement and maintain any practices and
procedures that may be required to monitor compliance with each of the customer service
requirements set forth in Section 5-27 of the Ordinance, and as such requirements may be
lawfully amended in accordance with the terms of the Ordinance or this Agreement.
Section 28. Late Fees.
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Franchisee hereby agrees that any late charge imposed on Subscribers for unpaid bills
shall not exceed Five Dollars ($5.00). Such fee may be deemed to represent Franchisee's
reasonable administrative costs.
Section 29. City Purchase of Cable System.
The City may, upon the recommendation of the City Manager and the approval of the
Commission, acquire ownership of and operate Franchisee's Cable System in accordance with the
Ordinance and applicable state and federal law.
Section 30. Modification of Agreement.
Franchisee shall file an Application with the City for any modification of this Agreement
in accordance with the federal Communications Act.
Section 31. Transfer of Agreement.
Franchisee shall file an Application to transfer or to change ownership or control of
Franchisee or its Cable System in full compliance with Section 32 below. No Transfer shall
occur without prior approval of the City Commission, which approval shall not be unreasonably
withheld. Franchisee shall be subject to liquidated damages in the amount of one thousand five
hundred dollars ($1,500) per day for failure to receive such consent of the City for a transfer or
change of control; provided, however, that no such liquidated damages shall be owed if the
City's denial of consent is unlawful or unreasonable.
Notwithstanding the forgoing and in full compliance with Section 32 below and Section
5-29(3) of the Ordinance, the City approves and consents to the transaction to transfer this
Franchise from the Franchisee to an affiliate of Comcast Corporation as described in Transfer
Resolution attached as Exhibit B and incorporated by reference herein. Upon the request of
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Franchisee, the City will provide an originally executed copy of the Transfer Resolution to the
Franchisee.
Section 32. Procedures for Requesting Approval of Transfer.
In compliance with the requirements set forth in Sections 5-29(3) of the Ordinance, and
subject to Section 31 above, the following procedures shall be followed by Franchisee in
requesting the City's consent to a transfer, other than a pro forma transfer, of this Agreement or
to transfer control ofthe Agreement or Franchisee. However, the requirement to obtain consent
for a pro forma transfer shall not apply to transactions solely for the purpose of restructuring,
recapitalization or refinancing which do not change the effective control of the Franchis~e, as
long as the Franchisee provides reasonable notice to the City of such transaction.
A. At least one hundred twenty (120) calendar days prior to the contemplated
effective date of a transfer, Franchisee shall submit to the City a completed Application for
approval of the transfer. Such Application shaH include the following:
1. A statement of the reason for the contemplated transfer.
2. The name, address and telephone number of the proposed transferee.
3. A detailed statement of the corporate or other business entity organization
of the proposed transferee, including but not limited to the following:
(a) A detailed and complete audited financial statement of the
proposed transferee for the three (3) fiscal years immediately preceding the date of the request for
transfer approval, prepared by a certified public accountant if audited statements were made, or a
letter or other acceptable evidence in writing from a duly authorized officer of the proposed
transferee setting forth a clear and accurate description of the amount and sources of funding for
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the proposal transaction and its sufficiency to provide whatever capital and operating funds shall
be required by the proposed transferee to construct, install, rebuild, maintain and operate the
proposed Cable System in the City. If the corporate or business entity organization ofthe
proposed transferee has not been in existence for a full three (3) years, the proposed transferee
shall submit a certified financial statement for the period of its existence.
(b) A description of all previous experience of the proposed transferee
in operating Cable Systems and providing Cable Services or related or similar services, including
a statement identifying, by place and date, any other cable television licenses or franchises
awarded to the proposed transferee, its parent, subsidiaries, or Affiliates in the State of Florida.
(c) Upon written request from the City and if such pro forma financial
plan has been prepared, a detailed pro forma financial plan describing for each remaining year of
the Franchise, the projected number of Subscribers, rates, all revenues, operating expenses,
capital expenditures, depreciation schedules, income statements, and statement of sources and
uses of funds. Where the transfer is part of a larger transaction and such information is not
prepared for the single Cable System in the City, the proposed transferee may provide such
information on a consolidated basis including the Cable System in the City, but shall provide
information on the size of the City System, in ternlS of number of Subscribers, relative to the
transaction, so that pro rata estimates may be made.
(d) If applicable, a detailed description of the proposed plan of
operation of the proposed transferee, which shall include, but not be limited to the following:
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1. A detailed map indicating all new areas proposed to be
served, and a proposed time schedule for the installation of all equipment necessary to become
operational throughout the new areas to be served.
11. For informational purposes a statement or schedule setting
forth all anticipated changes, if any, to the proposed classifications of Subscriber rates and
charges for each of any said classifications, including installation charges, service charges,
special, extraordinary, or other charges.
4. Upon request, the terms and conditions of the agreement between the
transferor and proposed transferee relating to the operation of the Cable System in the City.
5. A statement of acceptance signed by a duly authorized officer of the
proposed transferee, if such transferee will be the holder of the Franchise, of all of the terms and
conditions of the Ordinance and this Agreement. If such transferee is not the holder of the
Franchise, such transferee will sign a guarantee of compliance by the Franchisee with this
Agreement.
6. A statement of acceptance of all liabilities arising under the existing
Franchise whether known or unknown.
7. A plan of compliance and guarantee to cure any outstanding violations of
the Ordinance and this Agreement.
B. The names, business addresses, state of residence and country of citizenship of all
general partners and/or corporate officers and directors of the proposed transferee.
C. The nanles, business addresses, state of residence and country of citizenship of all
persons and entities having, controlling, or being entitled to have or control ten percent (10%) or
29
more of the ownership of the proposed transferee and the respective ownership share of each
such person or entity.
Section 33. Dispute Resolution Procedures.
.Either party may seek mediation and the party seeking mediation shall provide written
notice to the other party. If both parties consent to mediation, the mediator, who shal1 have
expertise in cable-related matters, shall be selected by agreement between the parties.
1. The mediation will be conducted as specified by the mediator and agreed
upon by the parties. The parties agree to discuss their differences in good faith and to attempt,
with the assistance of the mediator, to reach an amicable resolution of the dispute.
2. The mediation will be treated as settlement discussions and confidential.
The mediator may not testify for either party in any later proceeding relating to the dispute. No
recording or transcript shall be made of the mediation proceedings.
3. Each party wiH bear its own costs in the mediation. The fees and expenses
of the mediator will be shared equaHy by the parties.
Section 34. Renewal of Agreement.
The provisions of Section 626 of the Communications Act and Section 93.23 of the
Ordinance shall govern any and all proceedings to renew this Agreement. In the event of a
conflict between the Communications Act and the Ordinance, the Communications Act shall
control. If either Franchisee or the City decides to initiate a formal renewal process in
accordance with Section 626(a)-(g) ofthe Communications Act, 47 U.S.c. § 546(a)-(g), both the
Franchisee and the City must comply with each of the requirements in the Communications Act
as well as the additional requirements set forth in the Ordinance.
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Section 35. Rates.
A. Nothing in the Ordinance or this Agreement shall prohibit the City from
regulating rates for Cable Service, installation, disconnection, and equipment to the full extent
permitted by and consistent with state and federal law.
B. Pursuant to the Ordinance, Franchisee shall not unlawfully discriminate with
respect to Cable Service rates that it charges throughout the City, as defined by applicable law.
Section 36. Enforcement Remedies.
A. In addition to any other remedies available at law or equity, except as otherwise
specifically provided in the Ordinance and Section 33 of this Agreement, the City may impose
fines for any violation ofthe Ordinance, or this Agreement, and/or other remedies as follows:
1. For failure to provide data, documents, reports or information as required
by this Agreement in a timely manner or as requested by the City consistent with FCC rules and
regulations, Franchisee shall pay fifty dollars ($50.00) per violation for each day the violation
continues.
2. Unless otherwise provided herein, for all other violations of this
Agreement or the Ordinance, except those violations of the FCC customer service standards that
are measured on a quarterly basis, the fines shall be one hundred dollars ($100.00) per violation
for each day the violation continues for thirty (30) days. Ifthe violation continues beyond thirty
(30) days, a fine in the amount of two hundred dollars ($200.00) per violation per day shall be
imposed. If the violation continues beyond sixty (60) days, a fine shall be imposed in the greater
of the amount set forth in the Ordinance or two hundred dollars ($200.00) per violation per day.
B. A violation will be deemed to have occurred when the City provides written notice to
31
Franchisee of the violation in accordance with the procedures set forth in the Ordinance and this
Agreement. In addition to any other remedies available at law or equity, except as otherwise
specifically provided in this Agreement, the City may impose fines for any violation of the
Ordinance, or this Agreement, and/or other remedies, pursuant to Section 37 hereof.
C. This Franchise is subject to revocation pursuant to Section 38 hereof for any of the
reasons set forth therein. In the event the City exercises its right to revoke the Franchise, the
procedures set forth in Section 38 shal1 apply. After exhaustion of all such proceedings, Franchisee
shall have the right to appeal the decision of the City Commission to a court of competent
jurisdiction in Palm Beach County, Florida.
D. The Franchisee shall not be held in default under, or in noncompliance with the
provisions of the Agreement or the Ordinance, nor suffer any enforcement or penalty relating to
noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by
circumstances reasonably beyond the ability of the Franchisee to anticipate or control.
Section 37. Franchise Violations.
(a) In addition to any other remedies available at law or equity, the City may apply any
one or combination ofthe following remedies in the event a Franchisee violates a provision of the
Ordinance or this Franchise Agreement after following the procedures set forth in Subsections (d-h)
below.
(1) Impose liquidated damages in an amount of not less than Two Hundred Fifty
Dollars ($250) per day or part thereof per individual violation. Payment ofliquidated damages by
the Franchisee will not relieve the Franchisee of its obligation to comply with this Agreement and the
32
requirements ofthe Ordinance, provided, however, that cure ofthe alleged violation and payment of
liquidated damages pursuant to this section shall be considered full and final resolution ofthe alleged
violation and may not be considered as an event of noncompliance for such period.
(2) Revoke the Franchise pursuant to the procedures specified in Section 38
hereof.
(3) In addition to or instead of any other remedy provided herein, the City may
seek equitable relief from any court of competent jurisdiction.
(b) In determining which remedy or remedies are appropriate, the City shall take into
consideration the nature of the violation, the person or persons bearing the impact of the violation,
the nature of the remedy required in order to prevent further violations and such other matters as the
City determines are appropriate to the public interest.
(c) Failure of the City to enforce any requirements ofthis Agreement or the Ordinance
shall not constitute a waiver ofthe City's right to enforce that violation or subsequent violations of
the same type or to seek appropriate enforcement remedies.
(d) If the City believes that Franchisee has failed to perform any obligation under the
Ordinance or this Agreement or has failed to perform in a timely manner, the City shall notify
Franchisee in writing, stating with reasonable specificity the nature of the alleged default. Franchisee
shall have thirty (30) days from the receipt of such notice to:
(1) Respond to the City, contesting the City's assertion that a default has occurred,
and requesting a meeting in accordance with Subsection (e), below; or
(2) Cure the default (except Franchisee shall have ninety (90) days with respect to
customer service standards measured on a quarterly basis); or
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(3) Notify the City that Franchisee cannot cure the default within the thirty (30) days
(or ninety (90) days where applicable), because of the nature of the default. In the event the default
cannot be cured within the applicable time frame, Franchisee shall promptly take all reasonable steps to
cure the default and notify the City in writing and in detail as to the exact steps that will be taken and
the projected completion date. In such case, the City shall set a meeting in accordance with Subsection
(e) below to determine whether additional time beyond the time specified above is indeed needed, and
whether Franchisee's proposed completion schedule and steps are reasonable.
(e) If Franchisee does not cure the alleged default within the cure period stated above, or by
the projected completion date under Subsection (d)(3), or denies the default and requests a meeting in
accordance with (d)(I), or the City orders a meeting in accordance with Subsection (d)(3), the City shall
set a meeting to investigate said issues or the existence of the alleged default. The City shall notify
Franchisee ofthe meeting in writing and such meeting shall take place no less than thirty (30) days after
Franchisee's receipt of notice of the meeting. At the meeting, Franchisee shall be provided an
opportunity to be heard and to present evidence in its defense.
(f) If, after the meeting, the City determines that the Franchisee has corrected the violation
or promptly commenced correction of such violation after notice thereof from the City and is diligently
proceeding to fully remedy the violation, or that no violation has occurred, the proceedings shall
terminate and no penalty or other sanction shall be imposed.
(g) If, after the meeting, the City determine that a violation exists and that Franchisee has
not corrected the same in a satisfactory manner or did not promptly commence and diligently process to
correct the violation, the City may:
(1) Impose penalties and/or liquidated damages in accordance with Subsection (a)
34
above and withdraw such amount from the security fund required in this Agreement as monetary
damages;
(2) Recommend the revocation of this Franchise pursuant to the procedures in
Section 38 below; or
(3) Recommend any other legal or equitable remedy available under this Franchise
or any applicable law.
(h) If the City elects to assess liquidated damages in accordance with this Section, then
such election shall bar the City from instituting revocation proceedings for a period of one hundred
twenty (120) days. Thereafter, ifthe Franchisee remains in non-compliance with the requirements of
this Ordinance or a Franchise Agreement, the City may institute revocation proceedings against the
Franchisee in accordance with the provisions of Section 38 below.
(1) Notwithstanding anything to the contrary, any fines/liquidated damages imposed
herein shall be calculated as accruing from the date ofwritten notice to the Franchisee ofthe violation.
(2) The determination as to whether a violation of this Franchise has occurred shall be
within the discretion ofthe City Commission, provided that any final determination may be subject to
appeal to a court of competent jurisdiction under applicable law.
Section 38. Revocation.
(a) The City may revoke and rescind all rights and privileges associated with this Franchise
in the following circumstances, each of which represents a material breach ofthis Franchise:
(1) If Franchisee fails to perform any material obligation under the Ordinance or this
Agreement;
(2) If Franchisee willfully fails for more than forty-eight (48) hours to provide
35
continuous and uninterrupted Cable Service;
(3) If Franchisee practices any fraud or deceit upon the City or Subscribers; or
(4) If Franchisee willfully makes a material misrepresentation of fact in the
Application for or negotiation of a Franchise, a renewal or a transfer.
(b) Prior to forfeiture or termination of the Franchise, the City shall give written notice by
certified mail to the Franchisee of its intent to revoke the Franchise. The notice shall set forth the
exact nature ofthe noncompliance. Ifwithin thirty (30) days following receipt of such written notice
from the City to the Franchisee, the Franchisee has not cured such violation or breach, or has not
entered into a written agreement with the City on a program to cure the violation, or has not
demonstrated that the violation is incurable, or has filed a written response to the City demonstrating
that no violation has occurred, the City may then seek a termination of the Franchise by the City
Commission in accordance with this subsection.
(c) Any proceeding under the subsection above shall be conducted by the City
Commission and open to the public. Franchisee shall be afforded at least thirty (30) days prior
written notice of such proceeding.
(1) At such proceeding, Franchisee shall be provided a fair opportunity for full
participation, including the right to be represented by legal counsel, to introduce evidence, and to
question witnesses. A complete verbatim record and transcript shall be made of such proceeding and
the cost shall be shared equally between the parties. The City Commission shall hear any Persons
interested in the revocation, and shall allow Franchisee an opportunity to state its position on the
matter.
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(2) Within ninety (90) days after the hearing, the City Commission shall determine
whether to revoke the Franchise and declare that the Franchise is revoked and the security fund
forfeited; or if the breach at issue is capable of being cured by Franchisee, direct Franchisee to take
appropriate remedial action within the time and in the manner and on the terms and conditions that the
City Commission determines are reasonable under the circumstances. If the City determines that the
Franchise is to be revoked, the City shall set forth the reasons for such a decision and shall transmit a
copy of the decision to the Franchisee. Franchisee shall be bound by the City's decision to revoke
the Franchise unless it appeals the decision to a court of competent jurisdiction within one hundred
twenty (120) days ofthe date of the decision.
(3) Franchisee shall be entitled to such relief as the Court may deem appropriate.
(4) The City Commission may at its sole discretion take any lawful action which it
deems appropriate to enforce the City's rights under the Franchise in lieu of revocation of the Franchise.
(d) If the City revokes a Franchise, or if, for any other reason, a Franchisee abandons the
Cable System, terminates or fails to operate or maintain service to its Subscribers for a period of
thirty (30) days, the following procedures and rights are effective:
(1) The City may require the former Franchisee to remove its facilities and
equipment at the former Franchisee's expense. If the former Franchisee fails to do so within a
reasonable period of time, the City may have the removal done at the former Franchisee's and/or
surety's expense.
(2) The City, by resolution of the City Commission, may acquire ownership, or
effect a transfer of the Cable System, in accordance with Section 627 of the Communications Act.
37
(3) If a Cable System is abandoned by a Franchisee, the City may sell, assign or
transfer all or part of the assets of the System.
(e) Where the City has issued a Franchise specifically conditioned in the Franchise
Agreement upon the completion of construction, System upgrade or other specific obligation by a
specified date, failure of the Franchisee to complete such construction or upgrade, or to comply with
such other specific obligations as required may result in revocation ofthe Franchise, unless the City,
at its discretion and for good cause demonstrated by the Franchisee, grants an extension of time.
(f) No adverse action against a Franchisee may be taken by the City pursuant to this
section except as consistent with the procedures set forth in this section or as otherwise provided by
applicable law, including a noticed public hearing at which the Franchisee is given an opportunity to
participate.
Section 39. Area Wide-Interconnection.
A. The Cable System shall be interconnected with other contiguous area cable
systems that are owned and operated by Franchisee or an Affiliate.
B. Franchisee shall use its best efforts to interconnect the PEG Access Channels of
the Cable System with any other contiguous cable system not owned or operated by Franchisee or
an Affiliate of Franchisee upon the directive of the City. Interconnection of channels may be
done by direct cable connection, microwave link, satellite or other appropriate methods. Each
individual operator of such systems shall pay for its own cost of constructing and maintaining the
interconnection up to the demarcation point. Such interconnection shall not increase the total
number of PEG Access Channels required under Section 16 of this Agreement.
38
C. Subject to subsections A and B above, Franchisee shall make all reasonable
efforts to cooperate with any designated access organization, interconnection corporation,
regional interconnection authority or City, County, state or federal regulatory agency which may
be hereafter established for the purpose of regulating, financing, or otherwise providing for the
interconnection of cable systems beyond the boundaries of the Franchise Area.
Section 40. Validity.
A. By execution of this Agreement, the City and the Franchisee each represents and
warrants to the other its respective authority and power to enter into this Agreement. The City
and the Franchisee each represents, warrants and covenants to the other that the undersigned
elected official (as to the City) or officer (as to the Franchisee) has been duly authorized to
execute this Agreement such that this Agreement has been validly entered into by the respective
party, and that this Agreement constitutes a legal, valid and binding contract enforceable against
the respective party in accordance with the terms hereof.
B. If any part, section, subsection, or other portion of this Agreement or any
application thereof to any Person or circumstance is declared void, unconditional or invalid for
any reason, such part, section, subsection, or other portion, or the prescribed application thereof,
shall be severable, and the remaining provisions of this Agreement, and all applications thereof
not having been declared void, unconstitutional or invalid, shall remain in full force and effect.
Section 41. Written Notice of Acceptance.
Upon adoption and as of the date of the Commission resolution approving this
Agreement, Franchisee shall provide to the City written acceptance of all the terms and
conditions of this Agreement. Franchisee's failure to comply in full with this section shall render
39
this Agreement null and void with no further action by the City, unless the City Manager agrees
in writing or the Commission takes action to extend such period.
Section 42. Notice.
Any notice, request, demand, approval or consent given or required to be given under this
Agreement shall be in writing and shall be deemed as having been given when mailed by United
States registered or certified mail (return receipt requested), postage prepaid, to the other parties
at the addresses stated below or at the last changed address given by the party to be notified as
hereinafter specified:
(a) If to Adelphia: Adelphia Cable Communications
1100 Northpoint Parkway, Suite 100
West Palm Beach, FL 33407
Attention: Regional Vice President, Law and Public Policy
With a copy to:
Adelphia Communications
5619 DTC Parkway
Greenwood Village, CO 80111
Attention: Vice President, Law and Public Policy
(b) If to City: City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33425-0310
Attention: City Manager
With a copy to:
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Blvd. #200
Ft. Lauderdale, FL 33308
Attention: James Cherof, Esq.
40
Section 43. Force Majeure.
In the event a Franchisee's performance of or compliance with any of the provisions of the
Ordinance or this Franchise Agreement is prevented by a cause or event not within the Franchisee's
control, such inability to perform or comply shall be deemed excused and no penalties or sanctions
shall be imposed as a result thereof; provided, however, that Franchisee uses all practicable means to
expeditiously cure or correct any such inability to perform or comply. For purposes hereof, causes or
events not within a Franchisee's control shall include, without limitation, acts of God, floods,
earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or
civil disturbances, sabotage, strikes, loss of utility service not as a result of any action or inaction by
Franchisee and restraints imposed by order of a governmental agency or court (unless such order is
procured at Franchisee's behest). Causes or events within Franchisee's control, and thus not falling
within this section, shal1 include, without limitation, Franchisee's financial inability to perform or
comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of Franchisee's
directors, officers, employees, contractors or agents.
Section 44. Severability .
If any part, section, subsection, or other portion of this Agreement is declared void,
unconstitutional or invalid for any reason, such part, section, subsection, or other portion, or the
prescribed application thereof, shall be severable, and the remaining provisions ofthis Agreement,
and all section hereof not having been declared void, unconstitutional or invalid, shall remain in full
force and effect.
41
Section 45. Entire Agreement.
This Agreement and the Ordinance, to the extent set forth in this Agreement, set forth the
entire agreement between the parties respecting the subject matter hereof. All agreements,
covenants, representations and warranties, express and implied, oral and written, of the parties
with regard to the subject matter hereof are contained herein. No other agreements, covenants,
representations or warranties, express or implied, oral or written, have been made by any party to
another with respect to the matters of this Agreement. Al1 prior and contemporaneous
conversations, negotiations, agreements, representations, performances, covenants and warranties
with respect to the subject matter hereof are waived and are superseded hereby and thereby.
Section 45. Execution in Counterpart.
This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed or caused this agreement to
be duly executed as of the day and year first above written.
CITY OF BOYNTON BEACH, FLORIDA
By: ~
Name: KURT BRESS~ER
Title: CITY MANAGER
BOYNTON BEACH. F~/7 .. I
, . ç;tl~ r
I .". I ._ / , ".
, ,¿", c'.' ." ¡(/M ¡-
Clerk (
I
,
Date filed with City Clerk: ,j. /¿7~tJs./
Agreed to and accepted by Franchisees:
42
Adelphia Cable Partners, L.P.
a Florida limited partnership
d/b/a Adelphia Cable Communications
By: ACC Operations, Inc.
a Delaware corporation
Its: General Partner's Managing Member's
Managi ember's General Partner
By: -----
Joe W. Bagan
Its: Sen' r Vice Presi ent of Operations
Date:
National Cable Acquisition Associates, L.P.,
a Delaware limited partnership
d/b/a Adelphia Cable Communications
By: ACC Operations, Inc.
a Delaware corporation
General Partner's ~ral Partner
A)J. 7
Joe W. Bagan
It . Senior Vice President of Operations
Date: ð'1 it¡ J ðri ]JJ$
I I Adelphia Cablevision of West Palm Beach JI[, LLC,
a Delaware limited liability company
d/b/a Adelphia Cable Communications
By: Century New Mexico Cable Television Corp.
aD ware corporation
Its: M ging Mer;(}:] .
By: ---
Joe W. Bagan
Its: S ior Vice President of Operations
Date: ð'J ì& / Ót-T
I 1
43
Leadership Acquisition Limited Partnership,
a Delaware limited partnership
d/b/a Adelphia Cable Communications
By: ACC Operations, Inc.
a Delaware corporation
Its: General ner's General Partner's Sole Owner
By: "" ----
Its: Seni f Operations
Date: r-
" ! ('
¡) .,-
Witnesses: --C U (¿ (?Hi?
44
EXHIBIT A
DEDICATED CAPACITY AGREEMENT
45
DEDICATED CAPACITY AGREEMENT
,\\ Q , 2005 (the
This Dedicated Capacity Agreement (the "Agreement") is made and entered into as of the lh~day of 'ui, \1:;\ "Effective Date" which shall be on or after the date of the execution and written acceptance of the renewal of the Cable Television
Franchise to Adelphia Communications Corp. or any subsidiary thereofj by and between the City of Boynton Beach, Florida, a municipal
corporation with its principal offices located at 100 E. Boynton Beach Blvd., Boynton Beach, Fl 33425-0310 ("City") and Adelphia Cable
Partners, lP, a Delaware limited partnership doing business as Adelphia Cable Communications ("Adelphia") for itself, its subsidiaries and
affiliates that provide digital fiber optic telecommunications transmission capacity. Adelphia and City are the parties to this Agreement and
may be referred to individually as "Party" and collectively as "Parties." .
A. Adelphia desires to provide, and City desires to obtain and use, a specific amount of unlit digital fiber optic telecommunications
transmission capacity (the "Adelphia Service") between the locations (the "locations") more particularly described on the Service
Description included in Exhibit A., which is attached and incorporated in this Agreement by this reference.
B. City acknowledges that it will be responsible for providing all electronics, equipment and services required on its side of the
demarcation points at the locations in order for it to "light" the Adelphia facilities; the Adelphia Service is not "lit" and Adelphia makes no
undertaking under this Agreement to do so as part of the Adelphia Service.
C. The Parties acknowledge that this Dedicated Capacity Agreement is not an Indefeasible Right of Use ("IRU") Agreement, but is
intended to provide City only with access to the Adelphia Service for a limited time under the terms and conditions set forth below.
IN CONSIDERATION OF THE FOREGOING RECITALS AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE PARTIES
TO THIS AGREEMENT AGREE AS FOllOWS:
1. The Adelphia Service, Facilities and Access.
(a) Service and Facilities. Subject to and in accordance with the terms and conditions of this Agreement, Adelphia will provide
the facilities necessary to provide City with the Adelphia Service (the "Facilities"). Provision and use of, the Adelphia Service in the
amounts and at the locations shall be in accordance with the terms and conditions set forth in this Agreement. City shall have the right to
1
use capacity on the Facilities only up to the amounts specified in Exhibit A; the Adelphia Service provided under this Agreement is not
"burstable." If any time City wishes to use capacity at any Location in excess of the amounts specified in Exhibit A, it must place an order
with Adelphia for additional capacity, which must be accepted by Adelphia before any such usage occurs. Adelphia agrees to respond to
any request to increase capacity within sixty (60) days of such request. Should Adelphia determine, through use of Audit Equipment (as
defined below) or otherwise, that City has exceeded the capacity specified in Exhibit A, Adelphia may, at its sole discretion, invoke any of
the terms under this Agreement.
(b) City Use of Adelphia Service. City may connect its network or facilities with the Facilities at City' sole cost, at the
connecting points designated in Exhibit A. Adelphia shall provide a fiber connection to an Adelphia owned and installed patch panel in the
computer/telecommunications room, designated by the City in each location listed on Exhibit A. City shall then be responsible for providing
all electronics and required equipment and services on its side of the demarcation identified at the Locations to "light" the Facilities and
utilize the Adelphia Service for City's intended purposes. City shall be responsible for all costs to connect its network or facilities with the
Facilities and to "light" or otherwise utilize the Adelphia Service. City may use the Adelphia Service for City's business, including, but not
limited to, the transport of City content, municipal wireless applications, and for any lawful purpose provided however, that the City shall not
resell any portion of the capacity of the Facilities provided under this Agreement nor shall the City permit non-governmental use or provide
any services that directly compete with services provided by Adelphia. To the extent that the City installs antennae or other equipment to
enable the provision of wireless service, such additional antennae or equipment shall not be construed as "additional sites" pursuant to
Exhibit A Section 6. City shall take all reasonable precautions against, and shall assume liability, subject to the terms of this Agreement,
for any damage caused by the negligence of City to the Facilities or other fibers or portions of the facilities or equipment used or owned by
Adelphia. City shall at all times comply with all applicable laws and regulations. Adelphia reserves the right to terminate the Adelphia
Service and/or suspend affected Adelphia Service, if Adelphia determines that City use does not conform with the requirements set forth in
this Agreement or the City causes technical interference that impedes Adelphia's ability to provide Adelphia Service to City or others or
receives notice from anyone that such use may violate applicable laws. Adelphia's actions or inaction under this Section shall not
constitute review or approval of City's use. Adelphia will provide notice to City before taking action under this Section.
(c) Adelphia Inspection and Audit Rights; Use of Monitoring and Bandwidth Governors.
(i) City acknowledges that Adelphia may audit City's use of the Facilities, as further provided in this Section. During the
term of this Agreement and for a period of three (3) years thereafter, City shall allow Adelphia or its professional
advisors access to and the right to examine, audit, inspect and copy its records and any documents and other items
related to the Adelphia Service. City shall provide assistance to interpret such data if requested by Adelphia. Such
examination shall provide Adelphia with complete information regarding City's use of the Adelphia Service. City sites
shall be available for inspection and review at any reasonable time by representatives of Adelphia. Upon prior written
2
notice and accompanied by City employees, Adelphia or its designee may enter the Locations to perform physical
audits of City usage of the Adelphia Service and Facilities. Notwithstanding anything to the contrary, any and all
auditing and monitoring of the system by Adelphia shall be limited to the auditing and monitoring solely of the City's
use of transmission capacity and shall not include any auditing, monitoring or access by any other means of the
content of any transmissions.
(ii) In addition, no more than four (4) times each year during the Term of this Agreement, Adelphia may request that an
officer of City certify that City's usage of the Facilities and Adelphia Service comply with the terms and conditions
outlined in this Agreement, including the capacity restrictions set out in Exhibit A. .
(iii) City shall prepare, maintain and preserve all records compiled by City in connection with City's use of the Adelphia
Service. The records shall be retained for a minimum of one (1) year from the termination or completion of this
Agreement.
(iv). City further acknowledges that at any time during this Agreement, without notice to City, Adelphia has the right, but not
the obligation, to install and maintain monitoring and usage governing equipment (the "Audit Equipment") on the
Facilities used to provide the Adelphia Service provided that such equipment monitors only usage of capacity and does
not monitor or record the content of any transmissions. In addition, if required by Adelphia, such Audit Equipment may
be placed on site(s) of City at the Locations and City grants Adelphia a license to install and operate such Audit
Equipment on the Locations. Any such installation of Audit Equipment on a City sites at a Location shall be undertaken
only after prior reasonable written notice to City and approval of the location by the City, which shall not be
unreasonably withheld. A City representative shall be present while the installation is taking place.
(d) Public Rights of Way; Access to City Property. Adelphia owns and operates the Facilities. Adelphia acknowledges
that City has no obligation to assure or guarantee Adelphia the necessary connections to public streets, utilities or adjacent buildings that
may be necessary for the provision of Adelphia Service to the Locations. Notwithstanding the foregoing, (i) in areas owned or controlled
by City, City shall provide Adelphia access necessary for the operation of Facilities and (ii) City shall cooperate with Adelphia, at Adelphia's
expense, in obtaining any third party permits, easements or agreements necessary for Adelphia to provide Adelphia Service to City under
this Agreement.
2. Payment and Revenue.
(a) Charges for Adelphia Service. In exchange for the provision of the Adelphia Service, City shall pay the amounts listed on
Exhibit A (the "Service Charges"). Except as otherwise agreed to on Exhibit A, Adelphia shall bill in advance the Service Charges for all
Adelphia Service to be provided during the ensuing calendar month. All bills for Adelphia Service provided to City by Adelphia are due
3
within thirty (30) days of receipt. If any portion of the undisputed amounts of the payment has not been received by Adelphia forty five
(45) days after the bill date, or if any portion of the payment is received by Adelphia in funds which are not immediately available to
Adelphia, then a late payment penalty shall be due Adelphia. The late factor shall be the maximum amount allowable by law, but not more
than 1.5 % per month or 18% annually.
(b) Taxes; Costs. All payments provided in this Agreement are exclusive of any sales, use, gross receipts, excise, import or
export value added or similar taxes or duties (the "Taxes"). As of the Effective Date of this Agreement, the City is tax exempt. If during the
Term of this Agreement, the City's tax exempt status changes, the parties shall negotiate in good faith an increase in the payments made
to Adelphia to account for Taxes.
3. Facilities Ownership. The Facilities shall be and remain the property of Adelphia during the Term. City shall use reasonable
care to avoid damaging the Facilities during the Term and agrees not to alter, modify, sell, license, lease, assign, encumber, relocate,
move or tamper with the Facilities except in the case of an emergency whereupon the City may take any actions permitted pursuant to its
police powers and the authority granted by the laws of the state of Florida. City shall not use the Adelphia Service or any Facilities in a
way that violates Adelphia's interests in its trademarks, trade names, copyrights, or other proprietary rights.
4. Confidentiality. Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course
of this Agreement. Each Party agrees that it will take reasonable steps during the Term and for a period of one year following expiration or
termination of this Agreement, to prevent the duplication or disclosure of Confidential Information of the other Party, other than by or to its
employees, agents or affiliates with a specific "need to know" such Confidential Information. "Confidential Information" means all business
or technical information of the disclosing Party that is not generally known to the public and that derives value from not being generally
known, whether such information is disclosed orally or in writing. Confidential Information may include any software, content,
documentation, flow-chart, logic diagram, design proposal, screen shot, screen shot concept, algorithm, device, compilation of information,
method, technique, or process. Notwithstanding the foregoing, either Party may disclose Confidential Information without the consent of
the other Party, to the extent such disclosure is required by law, including Florida Statutes Ch. 119, rule, regulation or government or court
order.
5. Compliance with Laws and Regulations. Adelphia agrees to comply with all applicable laws, ordinances, rules and
regulations of any governmental entity or agency having jurisdiction with respect to the Facilities or the provision of the Adelphia Service.
City agrees to comply with all applicable laws, ordinances, rules and regulations of any governmental entity or agency having jurisdiction
4
with respect to the Locations. City represents and warrants that its use of the Adelphia Service and the Facilities shall comply in all material
respects with applicable government codes, ordinances, laws, rules, regulations and restrictions.
6. Representations, Warranties and Indemnification.
(a) Adelphia Warranties. Adelphia warrants that (i) it possesses all authorizations, approvals, consents, licenses, permits,
certificates and other rights and permissions necessary to permit Adelphia to install, operate, and offer the Adelphia Service at the
Locations, and (ii) it currently has and will maintain property insurance and commercial general liability insurance in amounts specified in
the City's generally applicable cable television ordinance.
(b) City Warranties. City warrants that it is an incorporated municipality under the laws of the state of Florida and as such, has
the authority to enter into this agreement.
(c) General Warranties. Each Party represents and warrants to the other Party that: (i) such Party has the full right, power and
authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party,
and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is
a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and
binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) such Party acknowledges that the
other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in
this Agreement.
(d) No Additional Warranties. NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS
ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ADELPHIA SERVICE OR THE
FACILITIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(e) Limitation on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE USE OR INABILITY TO USE
THE ADELPHIA SERVICE, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED
THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED
BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO THIS SECTION. EXCEPT AS PROVIDED IN THIS
5
SECTION, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN
CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID UNDER THE AGREEMENT.
(f) Indemnity. Adelphia shall defend, indemnify, save and hold harmless the City and its officers and employees from any and
all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees ("Liabilities"), resulting from Adelphia's
material breach or alleged material breach of any duty, representation, or warranty of this Agreement. The foregoing obligation shall not
apply to any such claim to the extent that it is based on or arises out of (a) any other technology, software or materials provided by,
incorporated or distributed by City hereunder, in which case City shall indemnify Adelphia hereunder; (b) the combination, operation or use
of the Facilities with hardware, data, content or software not supplied by Adelphia; or (c) modifications to the Facilities if the modifications
were not made by Adelphia; (d) use of the Facilities in a manner not contemplated by the documentation. City shall defend, indemnify,
save and hold harmless Adelphia from any and all Liabilities resulting from City's willful, gross, negligent, or criminal acts related to a
material breach of this Agreement to the extent permitted by law.
(9) Claims. If a Party entitled to indemnification hereunder (the "Indemnified Party") becomes aware of any matter it believes is
indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any
third party (each an "Action"), the Indemnified Party will give the other Party (the "Indemnifying Party") prompt written notice of such Action.
Such notice will (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnifying Party will have a period
of thirty (30) days after delivery of such notice to respond. Notwithstanding the foregoing, the Indemnifying Party shall respond to such
notice promptly enough to provide the Indemnified Party a reasonable time to respond to any legal process or to comply with applicable
law or the rules of a legal proceeding in the event that the Indemnifying Party elects not to defend such Action. If the Indemnifying Party
elects to defend the Action or does not respond within the requisite period, the Indemnifying Party will be obligated to defend the Action, at
its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party will cooperate, at the expense of
the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to
participate fully, at its own expense, in the defense of such Action. If the Indemnifying Party responds within the required period and elects
not to defend such Action, the Indemnified Party will be free, without prejudice to any of the Indemnified Party's rights hereunder, to
compromise or defend (and control the defense oD such Action. In such case, the Indemnifying Party will cooperate, at its own expense,
with the Indemnified Party and its counsel in the defense against such Action and the Indemnifying Party will have the right to participate
fully, at its own expense, in the defense of such Action. Any compromise or settlement of an Action will require the prior consent of both
Parties hereunder, such consent not to be unreasonably withheld or delayed.
6
7. Compliance with Usage Restrictions; Liquidated Damages.
Excess Usage - Adelphia Remedies. Should Adelphia determine that City has used capacity on the Facilities in excess of the
amounts specified for use by City in Exhibit A ("Excess Usage"), Adelphia shall provide notice to City requiring that such Excess Usage
cease immediately. Upon receipt of such notice, City shall immediately cease use of such Excess Usage. After the City's receipt of such
notice, Adelphia may take the following action:
(a) Not less than thirty (30) days following the notice in (i) above, and if the City has not ceased the Excess
Usage, Adelphia may invoice City for liquidated damages for the Excess Usage. The Parties agree that any
Excess Usage by City may cause loss and damage to Adelphia, the amounts of which will be extremely
difficult or impossible to measure. Therefore, the Parties agree that if such excess usage is not the subject
of a dispute and the rate for such actual Excess Usage shall be no more than two (2) times the rate that
Adelphia charges to the City under the terms of this Agreement. The Parties understand and agree that the
terms of this Section 7(a)(ii) describe liquidated damages that City shall pay to Adelphia as a result of the
Excess Usage by City and do not constitute a penalty.
(b) In the alternative, Adelphia may terminate the Agreement for material breach.
8. Term and Termination.
(a) Term. The term of this Agreement shall be as set forth in Exhibit A.
(b) Termination for Breach. This Agreement may be terminated by either Party prior to its expiration if any of the following
events of default occurs: (i) the other Party materially fails to perform or comply with this Agreement or any provision hereof; (ii) the other
Party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of
creditors; or (iii) a petition under any bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed
by the other Party; or if such a petition is filed by any third party, or an application for a receiver of the other Party is made by anyone and
such petition or application is not resolved favorably to such Party within sixty (60) days. A non-defaulting Party may terminate the
Agreement under (i) above thirty (30) days after written notice of termination clearly titled "Notice of Default" and referencing this contract is
given by the non-defaulting Party to the defaulting Party and the defaulting Party's defaults have not been cured within such thirty (30) day
period. Termination under (ii) and (iii) above shall be effective upon notice. The rights and remedies provided in this Section shall not be
exclusive and are in addition to any other rights and remedies provided by law or this Agreement. In the event a non-defaulting Party in its
discretion elects not to terminate this Agreement, such election shall not be a waiver of any and all claims of that Party for such default(s).
Further, the non-defaulting Party may elect to leave this Agreement in full force and effect and to institute legal action against the defaulting
Party for specific performance and/or damages suffered by such Party as a result of the default(s).
c) Early Termination Liability. In the event this Agreement is terminated due to breach of this Agreement by City, City shall be
7
obligated to pay, in addition to any already accrued liabilities under this Agreement, an early termination fee as set forth below.
Termination during the first three (3) years - 100% of monthly recurring charge for balance of term
Termination during year 4 - 70% of monthly recurring charge for balance of term
Termination during year 5 - 60% of monthly recurring charge for balance of term
Termination during year 6 - 50% of monthly recurring charge for balance of term
Termination during year 7 - 40% of monthly recurring charge for balance of term
Termination during year 8 - 30% of monthly recurring charge for balance of term
Termination during year 9 - 20% of monthly recurring charge for balance of term
Termination during year 10- 10% of monthly recurring charge for balance of term
City shall pay any Early Termination Liability, to be paid monthly as if contract was still in effect. Notwithstanding the above, in the
event Adelphia's Cable Franchise with the City is terminated by Adelphia during the term of this Agreement, the City shall have the right to
terminate this Agreement upon thirty (30) days notice to Adelphia with no liability.
(d) Return of Information. Upon the expiration or termination of this Agreement, each Party will, upon the written request of the
other Party, return or destroy (at the option of the Party receiving the request) all Confidential Information, documents, manuals and other
materials specified by the other Party unless retention of such materials is required by applicable federal, state or local law or regulation.
9. Notices. Any notice, approval, request, consent, authorization, direction or other communication under this Agreement (except
routine operational communications or where otherwise specified) will be given in writing and will be deemed to have been delivered and
given for all purposes (i) on the delivery date if delivered by confirmed facsimile; (ii) on the delivery date if delivered personally to the Party
to whom the same is directed; (iii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or
(iv) five business days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other
means of rapid mail delivery for which a receipt is available.
In the case of notice to Adelphia, such notice shall be provided to:
Legal Department
Adelphia Cable Communications
5619 DTC Parkway
Greenwood Village, CO 80111
Forward Copies to: SVP of Operations
Adelphia Cable Communications
1100 Northpoint Parkway, Suite 100
West Palm Beach, FL 33407
And Copies to: Director of Commercial Data
Adelphia Communications
1 North Main Street
8
Coudersport, P A 16915
In the case of City, such notice shall be provided to:
City Manager
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33425-0310
Forward Copies to: James Cherof
City Attorney
Goren, Cherof, Doody & Ezrol, PA
3099 E. Commercial Blvd., #200
Ft. Lauderdale, FL 33308
10. Intellectual Property. Each Party retains all Intellectual Property Rights in all of its property, including, but not limited to trade
names, trademarks, service marks, symbols, identifiers, formats, designs, devices, identifiers, or proprietary products, services and
information owned by each Party.
11. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by the laws of the United States of America and the State of Florida
without regard to Florida's conflict of laws principles and each Party to this Agreement submits to the exclusive jurisdiction of, the state and
federal courts sitting in Palm Beach County, FL and each Party waives any jurisdictional, venue, or inconvenient forum objections to such
courts
(b) Entire Agreement. This Agreement is the entire agreement between the Parties and is not intended to confer and does not
confer any rights or remedies upon any person or entity other than the Parties to this Agreement. This Agreement sets forth the entire
understanding and agreement of the Parties concerning the subject matter hereof and supersedes all prior or contemporaneous
understandings or agreements related thereto.
(c) Assignment. Adelphia may assign this Agreement to any successor in interest to Adelphia's cable television franchise
agreement with the City as approved by the City, in whole, upon written notice to City. Adelphia may assign this Agreement to an
unaffiliated party that is not a successor in interest to the cable television franchise agreement only with the prior written consent of the
City, which shall not be unreasonably withheld. City may assign this Agreement only with the prior written approval of Adelphia, which
shall not be unreasonably withheld.
(d) Transfer of Adelphia Service. The Adelphia Service is solely provided for use by City. City may not transfer the Adelphia
Service to another person or location without Adelphia's prior written consent.
(e) Remedies. Except where otherwise specified, the rights and remedies granted to a Party under this Agreement are
cumulative and in addition to, and not in lieu of, any other rights or remedies which the Party may possess at law or in equity.
9
(f) No Implied Waiver. The failure of a Party to insist at any time upon the strict performance of any covenant or agreement
herein or to exercise any option, right, power of remedy contained in this Agreement shall not be construed as a waiver or a relinquishment
thereof for the future. Any waiver must be in writing and signed by the Parties.
(g) Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be
construed or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, (i) such provision will be
deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the
remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect.
(h) No Offer. This Agreement does not constitute an offer by Adelphia and it shall not be effective until signed by both Parties.
(i) Relationship of Parties. The Parties to this Agreement are independent of each other. Neither Party is an agent,
representative or employee of the other Party. Neither Party will have any right, power or authority to enter into any agreement for or on
behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement will not be interpreted or construed to
create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship
upon either Party.
Ü) Excuse. Neither Party will be liable for, or be considered in breach of or default under this Agreement on account of, any
delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such Party's reasonable
control and which such Party is unable to overcome by the exercise of reasonable diligence.
(k) Survival. Any payment obligations accrued prior to termination or expiration, and any other provision which, by its nature or
express terms should survive, will survive the completion, expiration, termination or cancellation of this Agreement.
(I) Amendment. No change, amendment or modification of any provision of this Agreement will be valid unless set forth in a
written instrument signed by the Party subject to enforcement of such amendment, by a duly authorized officer or employee.
(m) Further Assurances. Each Party will take such action (including, but not limited to, the execution, acknowledgment and
delivery of documents) as may reasonably be requested by any other Party for the implementation or continuing performance of this
Agreement.
(n) Counterparts; Facsimile. This Agreement may be executed in counterparts, each of which will be deemed an original and
all of which together will constitute one and the same document. This Agreement, and written amendments hereto, may be executed by
facsimile.
10
(0) Consents; Approvals. Where an activity under this Agreement shall be subject to one Party's prior consent or approval, any
and all such approvals, consents shall not be unreasonably withheld or delayed.
(p) Injunctive Relief. The Parties acknowledge and agree that, notwithstanding any other provisions of this Agreement, breach
of the provisions of this Agreement by a Party shall cause the other Party irreparable damage for which recovery of money damages would
be inadequate and that the non-breaching Party may therefore seek timely injunctive relief to protect its rights under this Agreement in
addition to any and all remedies at law.
(q) Condemnation. If the whole or substantially the whole of the Facilities should be taken for any public or quasi-public use, by
right of eminent domain or otherwise or should be sold in lieu of condemnation, then this Agreement shall terminate as of the date when
physical possession of the Facilities are taken by the condemning authority. If less than the whole of the Facilities used to provide the
Adelphia Service is taken, and in Adelphia's reasonable judgment, it can no longer provide the Adelphia Service as a result of such
condemnation, Adelphia may elect to terminate this Agreement and all of its obligations not yet accrued upon thirty (30) days written notice
to City.
(r) Force Majeure. Neither Party shall be liable to the other for any loss or damage to any property or person occasioned by act
of God, public enemy, injunction, riot, strike, insurrection, war, court order, requisition, or order of governmental body or authority or by any
other cause beyond the reasonable control of either Party, except as otherwise specifically provided in this Agreement.
WHEREBY, the Parties execute this Agreement as of the Effective Date.
ADELPaBLE PARTNERS, LP "ADELPHIA" CITY OF BOYNTON BEACH, FLORIDA
;,~M!.~~ ~
By r/ B By
I.:k. Ul·· ~
......
Name (Print) ~ Name (Print) KURT BRESSNER
:5'0 p-- DOQ.)- . ~6 CITY MANAGER
I BOyNTON BEAClt FL
Title <3 L \.1 0<> Title
I
Date Date
11 4:fff2Q V~ ~ 'Co ~
~ ~ .A757 )'C1;frrV,
I '8' ~ J 0"'5;
EXHIBIT A - ,
1. NAME AND ADDRESS OF SPECIFIED LOCATIONS
City Hall 100 E. Boynton Beach Blvd., Boynton Beach, FL 33425
Fire Station #2 2615 W. Woolbright Road, Boynton Beach, FL 33425
Fire Station #3 3501 N. Congress Ave., Boynton Beach, FL 33425
Fire Station #5 East of High Ridge Road & south of Gateway
Senior Center 1021 S. Federal Hwy., Boynton Beach, FL 33425
City Hall at the Mall 801 N. Congress Ave., Boynton Beach, FL 33425
Hester Center 1901 N. Seacrest Blvd., Boynton Beach, FL 33425
Wilson Center 211 NW 13th Ave., Boynton Beach, FL 33425
Tennis Center 3111 S. Congress Ave., Boynton Beach, FL 33425
Police Crime Prevention 111 % N. Congress Ave. Boynton Beach, FL 33425
Utilities Admin. Bldg. 124 E. Woolbright Road, Boynton Beach, FL 33425
Water Treatment Plant 5469 W. Boynton Beach Blvd., Boynton Beach, FL 33425
2. SERVICE DESCRIPTION
Adelphia will provide 1 Gbps of unlit digital fiber optic telecommunications transmission capacity between the following locations
in a point-to-point configuration:
A Location Z Location Capacity
City Hall 100 E. Boynton Beach Blvd. 1 Gbps
Fire Station #2 2615 W. Woolbright Road 1 Gbps
Fire Station #3 3501 N. Congress Ave. 1 Gbps
Fire Station #5 East of High Ridge Road & south of Gateway 1 Gbps
Senior Center 1021 S. Federal Hwv. 1 Gbps
Citv Hall at the Mall 801 N. Congress Ave. 1 Gbps
Hester Center 1901 N. Seacrest Blvd. 1 Gbps
Wilson Center 211 NW 13th Ave. 1 Gbps
12
Tennis Center 3111 S. Congress Ave. 1 Gbps
Police Crime Prevention 111 Y2 N. Congress Ave. 1 Gbps
Utilities Admin. Bldg. 124 E. Woolbright Road lGbps
Water Treatment Plant 5469 W. Boynton Beach Blvd. 1 Gbps
3. PRICE SCHEDULE
For the unlit digital fiber optic telecommunications capacity connection(s), described above, the NRC amount of eighty-three thousand,
nine hundred forty dollars ($83,940.00) is payable upon contract execution. The MRC amount shown below is payable every month
beginning on the date that the City accepts the Acceptance form (Exhibit B) for such location(s), for a total of $5,460.00, per month for I
Gbps. The City may elect, on thirty (30) days prior written notice to Adelphia, to increase the capacity to 2 Gbps at any or all of the sites
listed below for a MRC of $671.00 per site, or increase to 3 Gbps for a MRC of $864.00 per site.
13 Year Term
A Location Z Location Capacity MRC I NRC
City Hall 100 E. Boynton Beach Blvd. 1 Gbps $455.00 $ 5,995.00
Fire Station #2 2615 W. Woolbright Road 1 Gbps $455.00 $ 5,995.00
Fire Station #3 3501 N. Congress Ave. 1 Gbps $455.00 $ 5,995.00
Fire Station #5 East of High Ridge Road & south of Gateway 1 Gbps $455.00 $17,995.00
Senior Center 1021 S. Federal Hwy. 1 Gbps $455.00 $ 5,995.00
City Hall at the Mall 801 N. Congress Ave. 1 Gbps $455.00 $ 5,995.00
Hester Center 1901 N. Seacrest Blvd. 1 Gbps $455.00 $ 5,995.00
Wilson Center 211 NW 13th Ave. 1 Gbps $455.00 $ 5,995.00
Tennis Center 3111 S. Congress Ave. 1 Gbps $455.00 $ 5,995.00
Police Crime Prevention 111 Y2 N. Congress Ave. 1 Gbps $455.00 $ 5,995.00
Utilities Admin. Bldg. 124 E. Woolbright Road 1 Gbps $455.00 $ 5,995.00
Water Treatment Plant 5469 W. Bovnton Beach Blvd. 1 Gbps $455.00 $ 5,995.00
TOTAL $5, 460.00 $83,940.00
13
4. TERM. The term of the Agreement (the "Initial Term") shall be thirteen (13) years from the Effective Date. After the Initial Term,
the Agreement may be renewed for additional periods upon mutual agreement (each period a "Renewal Term"), unless terminated by
either Party pursuant to this Section. At the end of the Initial Term or any subsequent Renewal Term, the Agreement shall be automatically
renewed for successive one-month periods unless either Party gives the other ninety (90) days prior written notice of its intent to terminate
the Agreement. Such monthly renewal periods shall be upon the same terms and conditions as those contained herein,. The Initial Term,
any Renewal Terms and any extension periods are referred to collectively at times in this Agreement as the "Term."
5. INSTALLATION TIMELlNE. Adelphia will provide a project timeline at the beginning of the project giving timelines for
construction and installation of the service. Adelphia will make all best and reasonable efforts to complete project installation within ninety
(90) business days of contract execution and in no event longer than one hundred eighty (180) days after the Effective Date, unless such
delay is due to causes beyond the control of Adelphia. If construction is not completed within the required timeframe, the City may assess
Adelphia liquidated damages in the amount of $1 00 per day until construction is completed.
6. FUTURE SITES. Future sites may be added to this dedicated capacity network for a monthly recurring charge of four hundred
and fifty-five dollars ($455.00) per month beginning on the date that the City accepts the Acceptance form, plus any construction costs
associated with building and terminating fiber into the new location. Upon request for service, Adelphia will conduct a physical site survey
and determine the cost of the project. Those costs will be given to City. If agreed upon, City will pay non-recurring charges before
construction begins.
7. Outage Credits. Adelphia shall correct all service interruptions within forty eight (48) hours after notice from the City. Unless
excused due to causes beyond the control of Adelphia, the City shall receive a credit equal to 1/30th of the monthly recurring charge
("MRC") for all affected sites for each hour that service remains interrupted after the 48 hour cure period up to 1 00% of the MRC.
14
EXHIBIT B
CERTIFICATE OF FINAL ACCEPTANCE
In accordance with the terms and conditions of the Adelphia Commercial Service Agreement, dated ,2005, between
("Company") and ("Adelphia"), the undersigned Company's Representative
hereby certifies:
The Adelphia Service as furnished, delivered, and installed at the Specified Location(s) described below appears to conform to the
specifications and other requirements set forth for the Adelphia Service in the Agreement, as of the date this form is signed below.
Therefore, the Certificate of Final Acceptance is granted by the Company for the Specified Location(s) described below under the terms
and conditions of the Agreement.
This Certificate is being issued for the following Specified Location(s):
A LOCATION Z LOCATION
By
Name (Print)
Title
Date
15
EXHIBIT B
TRANSFER RESOLUTION
46
1 RESOLUTION NO. R05 - r a 5
2
3 A RESOLUTION OF THE CITY COMMISSION OF THE
4 CITY OF BOYNTON BEACH, FLORIDA, TO CONSENT
5 TO ASSIGNMENT AND CHANGE OF CONTROL AND
6 CONSENT TO ASSIGNMENT OF CABLE SYSTEM AND
7 FRANCHISE; AND PROVIDING AN EFFECTIVE DATE
8
9
10 WHEREAS, cable television franchises have been granted by the City of Boynton
11 Beach, FL ("Franchise Authority") to Adelphia Cable Partners, L.P., National Cable
12 Acquisition Associates, L.P. and Leadership Acquisition, L.P. ("Franchisee-I") and to
13 Adelphia Cablevision of West Palm Beach, LLC ("Franchisee-2"). Franchisee-l are entities
14 that are indirect subsidiaries of Adelphia Communications Corporation ("Adelphia"), and the
15 Rigas Family had an ownership interest in Franchisee-2; and
16 WHEREAS, Adelphia is currently in Chapter 11 bankruptcy proceedings; and
17 WHEREAS, pursuant to an April 25, 2005 U.S. Government forfeiture agreement
18 with the Rigas family and an April 25, 2005 settlement agreement with Adelphia, any
19 remaining Rigas family ownership interest in Franchisee-2 will be terminated and transferred
20 by the U.S. Government to Adelphia (described as the "Government Settlements"); and
21 WHEREAS, on May 20, 2005 the United States Bankruptcy Court for the Southern
22 District of New York issued a written decision approving the Government Settlements; and
23 WHEREAS, pursuant to an Asset Purchase Agreement dated April 20, 2005 between
24 Ade1phia and Time Wamer NY Cable LLC ("TWNY"), the right to purchase the Franchisee-
25 1 's cable system will be assigned by TWNY to a wholly owned subsidiary of TWNY, Cable
26 Holdco Exchange II LLC which will purchase the cable system and franchises (the "Adelphia
27 Transaction"); and
28 WHEREAS, pursuant to an Exchange Agreement dated April 20, 2005 between Time
29 Warner Cable Inc. and Comcast Corporation ("Comcast"), 100% of the equity securities in
. .
. .
1 the Comcast subsidiary CAP Exchange I, LLC will be exchanged for 100 percent of the
2 equity securities of Cable Holdco Exchange II LLC whereby that entity will become a 100
3 percent indirect subsidiary of Comcast (the "Exchange Transaction"); and
4 WHEREAS, pursuant to another Asset Purchase Agreement dated April 20, 2005
5 between Adelphia and Comcast, the assets of Franchisee-2 will be acquired by Parnassos,
6 L.P., a whoHy-owned subsidiary of Com cast (described as the "Transaction"); and
7 WHEREAS, Franchise Authority has concluded its approval is necessary for the
8 above described Adelphia Transaction, the Exchange Transaction, and the Transaction and
9 has been provided FCC Form 394's and related information for such transactions; and
10 WHEREAS, the Franchise Authority is willing to consent to the Adelphia
11 Transaction, the Exchange Transaction, and the Transaction described above; and
12 WHEREAS, the Dedicated Capacity Agreement executed on 'ªfz 2005, by and
13 between the Franchise Authority and Adelphia Cable Partnership, L.P., a Delaware Limited
14 Partnership doing business as Adelphia Communications Corporation (the "Dedicated
15 Capacity Agreement") is a contract entered into in connection with the franchise agreements
16 being transferred.
17 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
18 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
19 SECTION 1. The foregoing recitals are approved and incorporated herein by
20 reference.
21 SECTION 2. The Franchise AuthOlity consents to the Ade1phia Transaction
22 described herein.
23 SECTION 3. The Franchise Authority consents to the Exchange Transaction
24 described herein.
· .
1 SECTION 4. The Franchise Authority consents to the Transaction described herein.
2 SECTION 5. This Resolution shall be deemed effective upon adoption.
3 SECTION 6. This Resolution shan have the force of a continuing agreement with the
4 Franchisee-l and Franchisee-2 and the Franchise Authority shall not amend or otherwise alter
5 this Resolution without the consent of the Franchisee-l and Franchisee-2.
6 SECTION 7. This Resolution shall also acknowledge that any franchise agreement
7 transferred pursuant hereto has associated with it the corresponding obligations and benefits
8 set forth in the Dedicated Capacity Agreement.
9 PASSED AND ADOPTED this {).. day of 1t~U-:5r ,2005.
10 CITY OF BOYNTON BEACH, FLORIDA
11
12
13
14
15
16
17 7?2f ~/
18
19
20 k;0ner
21 ' é~
22 Commissioner ~
23
24
25
26 Commissioner
27 ATTEST:
28
29
30
31
32
33
34
-Adelphia
Florida Regional Office
1100 Northpoint Parkway, Suite 100
West Palm Beach, FL 33407
Phone (561) 863-5701
Fax (561) 242-5257
August 16, 2005
Mr. Kurt Bressner
City Manager
City of Boynton Beach
100 East Boynton Beach Boulevard
Boynton Beach, FL 33406
Re: Adelphia Acceptance of Franchise Renewal - Boynton Beach, FL
Dear Mr. Bressner:
Pursuant to Section 41 of the Franchise Agreement dated August 2, 2005
("Franchise"), Adelphia Cable Partners, L.P., National Cable Acquisition Associates,
L.P., Adelphia Cablevision of West Palm Beach ill, LLC and Leadership Acquisition
Limited Partnership, l/k/a "Adelphia" hereby accept all the terms and conditions of the
Franchise.
ely,
k-).).I ~~
J e Bagan
enior Executive Vice President
JB/vle
-Adelphia
Southeast Regiornll Offioe
1100 Northpoint Pkwy, Suite 100.
West Palm Beach, Florida 33407
Phone (561) 227-3436
Fax (561) 242-8608
E-mail viki.everly@adelphia.com
August 22, 2005
VIA UPS NEXT DAY DELIVERY
Ms. Carisse Lejeune
Administrative Assistant
City Manager's Office
City of Boynton Beach
100 East Boynton Beach Boulevard
Boynton Beach, FL 33425-0310
Re: Franchise Agreement By and Between the City of Boynton Beach and
Adelphia Cable Partners, LP; Adelphia Cablevision of West Palm Beach,
LLC; Leadership Acquisition, LP and National Cable Acquisition
Associates, LP, subsidiaries of Adelphia Communications Corporation
Dear Carisse:
Please find fully executed copies of the following:
1) Franchise Agreement. One of the legal entities, Adelphia Cablevision of West
Palm Beach, LLC, contained a typo on page one and in the signature block on
page 43. Our Senior Vice President of Operations has initialed this correction.
Could you please have the appropriate person initial also and return a copy of
these two pages to me?
2) Exhibit B to Franchise Agreement - Dedicated Capacity Agreement.
3) Adelphia Acceptance Letter as required by Section 41 of the Franchise Agreement.
The check in the amount of $200,000.00 (Two Hundred Thousand Dollars) for the
capital grant for PEG equipment, facilities and other capital requirements required by
Section 16(B)(l) will be delivered under separate cover, as will the Certificate of
Insurance required by Section 8(B) and the Peñormance Bond required by Section 10.
Ms. Carisse Lejeune
Administrative Assistant
City Manager's Office
City of Boynton Beach
August 22, 2005
Page Two
In accordance with Section 3 of Exhibit A-I to the Dedicated Capacity
Agreement, please forward the check in the amount of $83,940 (Eighty-Three Thousand
Nine Hundred Forty Dollars), as well as the Certificate of Final Acceptance to the
attention of Kathy Hutton, Acting Vice President of Law & Public Policy and Senior
Counsel, at the address listed in the letterhead.
If you have any questions or there is further information I can provide you, please
do not hesitate to contact me.
Sincerely,
fh S'
$C~
Viki L. Everly
Franchise Coordinator / Paralegal
/vle
Enclosures