R-0983-99 RESOLUTION NO. 983-99
A RESOLUTION OF THE VILLAGE COUNCIL OF
MIAMI SHORES VILLAGE, FLORIDA, APPROVING THE
CHANGE OF CONTROL OF THE TCl/TKR OF SOUTH
FLORIDA, INC CABLE TELEVISION FRANCHISE TO
AT&T CORP.
WHEREAS, On October 7, 1998, Miami Shores Village received notification of the
proposed transfer of control of the TCl/TKR of South Florida, Inc. ("TCI-SF") cable television
franchise to AT&T Corp.; and
WHEREAS, pursuant to Ordinance No. 575-95 of Miami Shores Village, and the
franchise agreement, no such change of control may occur without prior approval of the Village
Council; and
WHEREAS, the Village has required that the applicant fulfill the obligations of Section 1-
08 of the cable television Ordinance and Section 1-30 of the cable television franchise and provide
information on the proposed transaction including details on the legal, financial, technical and
other qualifications of the transferee and on the potential impact of the transfer on subscriber rates
and services; and
WHEREAS, under FCC Rules, 47 CFR Section 76.502, Miami Shores Village has 120
days from the date of submission of a completed FCC Form 394, together with all Exhibits, and
any additional information required by the franchise agreement or applicable state or local law, to
act upon an application to sell, assign, or otherwise transfer controlling ownership of a cable
system; and
WHEREAS, it is the Village's position that the 120 day time period to act upon the
application of TCI has not commenced due to the fact that TCI has not submitted a completed
FCC Form 394 together with all exhibits and all information required by the franchise agreement;
and
WHEREAS, the Village shall act upon TCI's application on February 2, 1999, pursuant to
TCI's express consent that the Village waives no rights under Federal, state and local law and the
Ordinance and the franchise by scheduling consideration of the change of control on February 2,
1999 and pursuant to TCI's express consent that the date February 2, 1999 is not after the
expiration of the 120 day review period provided for in Federal law; and
WHEREAS, The Village has required written acceptance from TCI-SF and AT&T Corp.
of the terms and conditions of this Resolution by affidavit as a condition precedent to the
Adoption of this Resolution(affidavit attached hereto as Exhibits A); and
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WHEREAS, in the event the proposed transaction between TCI and AT&T Corp. is not
consummated or does not reach final closure for any reason, or in the event such closure is
reached on terms substantially or materially different to the terms described in the FCC Form 394
and exhibits thereto, this Resolution, together with the affidavits of acceptance submitted by the
proposed transferor and transferee, shall be null and void.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF MIAMI
SHORES VILLAGE, THAT:
1. To the extent required, Miami Shores Village hereby consents to the change of
control of the TCI-SF Cable Television Franchise from TCI to AT&T Corp.;
2. That the consent granted herein does not constitute and should not be construed to
constitute a waiver or release of any obligations of TCI under cable Ordinance No.
575-95 and the cable television franchise;
3. That the consent granted herein does not and should not be construed to constitute
a waiver of any right of the Village under applicable law including, but not limited
to, cable television Ordinance no. 575-95 and the cable television franchise; and
further, this consent shall not prejudice the Village's rights with respect to the
enforcement, renewal or transfer of the current cable television franchise and any
amendments thereto;
4. That the consent herein granted is conditioned upon(a) TCI-SF's assurances set
forth in its affidavit submitted to the Village on January 28, 1999 and attached
hereto as Exhibit A; (b) TCI-SF's Plan of Compliance submitted to the Village on
1999, and attached hereto as Exhibit B; (c) TCI-SF's submission to
the Village of cost recovery for all costs incurred by the Village related to the
transfer process pursuant to Section 1-09(h) of Cable Television Ordinance 575-95
no later than thirty (30) days after the effective date of this Resolution(such costs
are estimated at Fourteen Thousand Dollars ($14,000); and (d) TCI-SF's
submission to the Village of Nine Thousand Five Hundred Dollars ($9,500)which
is due to TCI-SF's annual payment of franchise fees which were due on a quarterly
basis for the years 1997 and 1998 and for other fees due;
5. That the consent herein granted is limited to the right to provide cable services,
and to the extent not otherwise prohibited by applicable law, TCI-SF shall be
required to obtain any lawful permission from the Village, prior to its providing
any other services within the Village.
6. That this Resolution shall have the force and effect of continuing the agreement
between TCI-SF and Miami Shores Village, Florida, the Franchise Authority.
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7. That the Village hereby reserves all of its rights pursuant to Federal, State and
local law including, but not limited to the rights in(a) the franchise renewal
process including, but not limited to the right to consider violations of the
franchise by TCI-SF; (b)the franchise transfer process including, but not limited
to, the right to act upon any application to sell, assign or otherwise transfer
controlling ownership of the cable system; and (c)the enforcement of the current
cable television Ordinance no. 575-95 as amended and the current cable television
franchise as amended;
8. That the consent herein granted is an express non-waiver and express reservation
of the Village's rights and authority with respect to enforcement of TCI-SF's
compliance with applicable law including, but not limited to, Cable Television
Ordinance no. 575-95 as amended and the current cable television franchise as
amended. TCI-SF, and to the extent required by the franchise or allowed pursuant
to applicable law its parent, affiliates and subsidiaries, shall be liable for any and all
violations of said law and agreement notwithstanding whether any such violation
arose prior to the effective date hereof. The Village's approval of the transaction
shall in no way be deemed a representation by the Village that TCI-SF is in
compliance with its obligation under Cable Television Ordinance no. 575-95 or the
franchise agreement;
9. That the consent herein granted is subject to TCI-SF's compliance with all other
applicable legal requirements and the Village does not waive and expressly
reserves the right to enforce full compliance with applicable ordinance and
franchise requirements, whether or not any non-compliance that may be
determined arose before or after the change of control of the TCI-SF franchise
from TCI to AT&T Corp.;
10. That this Resolution shall become effective upon the date of its adoption herein;
PASSED AND ADOPTED THIS 2nd DAY OF February , 199
ATTEST:
Mary R s Agosta, Mayor
Miami Shores Village
Barbara Fugazzi, C C
Village Clerk
APPROVED AS TO FORM:
Richard Sarafan, Village A orney
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.�V �41i GEIB0WITZ ISS0CI@TES 02i01i99 11 :31 P.0071011
EX$X"IT A
UNCONDITIONAL ACCEPTANCE
OF TERMS OF RESOLUTION NO. 99-
BEFORE ME,appeared the undersigned authority who having bwn duly swum upon his oath
deposes and states that:
1. The affiant is the Executive Vice President, Government Relations of TCT
Communications, Inc., and is the person authorized to execute this document on behalf of the
TCTTKR of South Florida,Inc.
2. The affiant is submitting this affidavit as a condition precedent to the change of
control of the T'CT=of South Florida, Inc. (-TCI-SF"} cable television franchise from TCI to
AT&T.
3. AffWA attests that TCI-SF is the current franchisee in the Village of Miami Shores,
Florida and that the Franchisee shall comply with the terms of this accepu=.
4. Franchisee=&Or its successors in interest shall reimburse the Village for all costs
iocun vd by the Village related to the transfer process pursuant to Section 1-09(h)ofCable Television
Ordinance 575-95. Such costs are estimated at Fourteen Thousand Dollars($14,000). payment shall
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be made to the Village no laxer than thirty (30) days after adoption of Resolution or
Resolution shall be deemed null and void
5. Franchisee shall submit to the Village the amount of Nine Thousand Five Hundred
)Dollars(59,500)due to TCI-SF's annual payment of franchise fees due a quarterly basis in the years
1997 and 1998.
0303 530 911, HIMITt 9SSOCION 02/01/99 11 :32 P.0081011
6. ASfant attests that TCI-SF shall provide and install-a.fiberoptic;cabie from the
Village's Bayfront Park and the Village's tot-lot to the Miami Shores polio Department dispatch
desk for the propose of installing security cameras no later than one year after the effective date of
Resolution No. at no cost to the Village. The Franchisee or its successor in interest
reserves the right to treat the cost associated with the fiber optic link as an external cost as defined
by Federal Communications Commission RWe§76.922(f).
7. Aunt attest that TCI-SF has carred and is in compliance with reporting requirements
t
including,bcunot limited to,the acquirements of Ordinance No.575-95,Sections 1-16 and 1-17 and
the fiwchise agreement,Sections 23 and 24,these violations beim the subject of a formal violation
notice dated Decennber 4, 1999.
S. Atthe request ofthe City,Franchisee shall demonstrate compliance with the teobni d
obligations set forth in the Franchise including,but not limited to,Sections 13& 14(h)or in the
alternative,shall provide the Village with an acceptable Plan of Compliance.
9. Fri shall cooperate is any franchise fee compliance inquiry in connection with
any possible franchise fee arreatages that may have arisen or that may may arise through the exclusion
of certain revenue stems.
10. In the event Franchisee offers cable hiternet services over its cable system iu the ,
Village ofMiami Shores,it shad,taking into account technical feasibility,provide access to its cable
modem platform to providers of Internet access and online services on comparable terms and
conditions to those terms and conditions on which access is provided.by Franchisee in any other
community. Franchisee shall comply with all lawfd requirements %intb respect to ams to
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X305 S30 9417 LEIB011TI A S S 0 C I A T E S 02101189 11 :32 P .0091011
Franchisee's cable modem platform for providers of Internet access and online services.
11. Franchisee shall comply with all other applicable legal requirements, including
carriage of broadcast digital,and high definition television signals,and interconnection of the cable
system with potential competitors for purposes,among other things, of sharing cable PEG channels
as required by the Franchise Agreement or applicable law.
12_ To the extent not prohibited by applicable law, the Franchisee agrees that cable
Tntemet services,including,but not limited to,@ Home,Roadrunner and Media Express or similar
services,provided by the Franchisee,its pareM affiliates or subsidiaries,over the cable system shall,
be deemed."cable services"as provided under Title VI of the Communications Act of 1934, as
amended Revenues received by Franchisee, and to the extent consistent with the Fianchise
Agreement and not specifically prohibited by applicable law,its parent,affiliales,or subsidiaries,
from such services provided over the Fr whisee's cable system,including,but not limited to,cable
modem equipment,advertising and sales revenues,shall be included within the definition of gross
revenues for the purpose of the franchise fee calculation to the maximum extent required by the
]Franchise Agreement and consistent with applicable law. It is the intent of the parties that this
Paragraph applies no more broadly than the existing cable television franchise with respect to other
cable services.
13. Franchisee acknowledges that the Legislative History of the 1992 Cable Act
contemplates Haat the City may address any deficiencies in service,including non-compliance,at the
time of any transfer or chaoge of control of the franchise. The Franchisee agrees to ensure that it
assumes responsibility for any and all mon corupliance under the current fmachise that may now exist
Or MAY later be discovered to have existed during rlae term of tUc Franchise even if prior to tate closing
ti MWItaU"OUiamiSh"CATOTWJkMMda%1&QI U2,wo 3
of the transfer of control.
14. Franchisee unconditionally accepts all terms and conditions of Resolution No. 99-
15. This Exhibit A may be signed in counterparts.
FURTHER AFFIANT SAYETH NAUGHT.
TCITKR OF SOU F RID C.
BY:
AT&T CORP. hereby accepts the terms and
conditions of this affidavit and Resolution No.
and agrees to do everything necessary to
ensure compliance therewith
STATE OF FLORIDA )
ss:
COUNTY OF MIAMI-DADE )
BEFORE ME,the undersigned authority, personally appeared JCt/ll)•rl k fm e , who
is known to me personally (or provided proof of identification) and upon being first duly sworn
acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose therein
expressed.
WITNESS my hand and official seal in the County and State last aforesaid this day of
I(Yl Ct rc,h 1999.
�NAOTPY PUBLIC, State of Florida
\\225\data\1999\Miami Shores\TCI TransferlAttidavit.01282.wpd 4
of the transfer of control.
14. Franchisee unconditionally accepts all terms and conditions of Resolution No. 99-_
15. This Exhibit A may be signed in counterparts.
FURTHER AFFIANT SAYETH NAUGHT.
TCI KR OF SOU F RID C.
BY:
AT&T CORP. hereby accepts the terms and
conditions of this affidavit and Resolution No.
and agrees to do everything necessary to
ensure compliance therewith
BY:
STATE OF FLORIDA )
ss:
COUNTY OF NIIAMI-DADE )
BEFORE ME,the undersigned authority,personally appeared ) CUU) GI J�f D O C- ,who
is known to me personally (or provided proof of identification) and upon being first duly sworn
acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose therein
expressed.
WITNESS my hand and official seal in the County and State last aforesaid this day of
I(YI och , 1999.
M M -a
90ARY PUBLIC, State of Florida
\\225\data\1999\Miami Shores\TCI TransfeAAMdavit01282.wpd 4
.•�• Maria 111ana Priede
My Commission expires: *kf*My commission CC738240
%aN Expires April 27.2001
STATE OF
ss:
COUNTY OF ' ;,Yu
BEFORE ME,the undersigned authority,ty,personally appeared �r��--�i� -;�-vt,�;who
is known to me personally (or provided proof of identification)and upon being first duly sworn
acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose therein
expressed.
WITNESS my hand and official seal in the County and State last aforesaid this day of
1999.
ROSITA-M. WOODHOUSE �
NOTARY PUBLIC OF NEW JERSEY
any Commission Expires Feb.7,2000 T�Z'P LIC, Stat of
My Commission expires: ��
U225\dataU999WiamiShoreslTC['Cransfcr\A(tidavit.0i282.w[xf 5