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Res 10-05 (" /,\ RESOLUTION NO. 10-05 A RESOLUTION OF THE CITY COMMISSION GRANTING A NON- EXCLUSIVE CABLE TELEVISION FRANCHISE TO ADELPHIA CABLE PARTNERS, LP AND NATIONAL CABLE ACQUISITION ASSOCIATES, LP, SUBSIDIARIES OF ADLEPHIA COMMUNICATIONS CORPORATION (COLLECTIVELY 'ADELPHIA') FOR THE PROVISION OF CABLE TELEVISION SERVICES, INCLUDING OPERATION AND MAINTENANCE OF A CABLE TELEVISION SYSTEM IN THE CITY OF DELRA Y BEACH; AND AUTHORIZING EXECUTION OF A FRANCHISE AGREEMENT THEREFOR. WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 USC para. 521 et. seq., the City may grant or renew a franchise to construct, operate and maintain a cable television system. WHEREAS, Adelphia desires to renew its franchise to maintain, and operate a cable system in the City and has applied to the City for a renewal of such franchise. WHEREAS, the construction, installation, maintenance and operation of such system involves the use and occupation of the streets of the city over which the City exercises control. WHEREAS, the City Commission having evaluated the application submitted by Adelphia in light of the requirements of federal and state law, and having conducted a public hearing concerning their renewal request, and having relied upon their representatives, and having considered all information presented by Adelphia, and by the City staff, and by the public, and based upon said representations and information, the commission has determined that a renewal of their non-exclusive franchise, subject to the terms and conditions set forth in the franchise agreement, upon which the City and Adelphia have reached agreement, is consistent with the public interest and in the best interest of the City. WHEREAS, all applicable federal and state criteria which are conditions precedent to the adoption hereof have been duly considered, applied, and accomplished in accordance with law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRA Y BEACH, FLORIDA AS FOLLOWS: 1. That a non-exclusive Cable Television Franchise is hereby granted by the City of Delray Beach to Adelphia for the provision of cable television services, including the operation and maintenance of a Cable Television System in the City of Delray Beach, Florida. (" / '~ 2. That the City Manager is herby authorized to execute a non-exclusive Cable Television Franchise Agreement with Adelphia Cable Partners, LP and National Cable Acquisition Associates, LP, Subsidiaries of Adelphia Communications Corporation (collectively , 'Adelphia') on behalf of the City of Delray Beach. PASSED AND ADOPTED in regular session on this the 1st day of March, 2005. ~~~ ATTEST: ~ \) ~\~.~ City Clerk 2 RESOLUTION NO. 10-05 RESOLUTION NO. 10-05 A RESOLUTION OF THE CITY COMMISSION GRANTING A NON- EXCLUSIVE CABLE TELEVISION FRANCHISE TO ADELPHIA CABLE PARTNERS, LP AND NATIONAL CABLE ACQUISITION ASSOCIATES, LP, SUBSIDIARIES OF ADLEPHIA COMMUNICATIONS CORPORATION (COLLECTIVELY 'ADELPHIA') FOR THE PROVISION OF CABLE TELEVISION SERVICES, INCLUDING OPERATION AND MAINTENANCE OF A CABLE TELEVISION SYSTEM IN THE CITY OF DELRA Y BEACH; AND AUTHORIZING EXECUTION OF A FRANCHISE AGREEMENT THEREFOR. WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 USC para. 521 et. seq., the City may grant or renew a franchise to construct, operate and maintain a cable television system. WHEREAS, Adelphia desires to renew its franchise to maintain, and operate a cable system in the City and has applied to the City for a renewal of such franchise. WHEREAS, the construction, installation, maintenance and operation of such system involves the use and occupation of the streets of the city over which the City exercises control. WHEREAS, the City Commission having evaluated the application submitted by Adelphia in light of the requirements of federal and state law, and having conducted a public hearing concerning their renewal request, and having relied upon their representatives, and having considered all information presented by Adelphia, and by the City staff, and by the public, and based upon said representations and information, the commission has determined that a renewal of their non-exclusive franchise, subject to the terms and conditions set forth in the franchise agreement, upon which the City and Adelphia have reached agreement, is consistent with the public interest and in the best interest of the City. WHEREAS, all applicable federal and state criteria which are conditions precedent to the adoption hereof have been duly considered, applied, and accomplished in accordance with law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRA Y BEACH, FLORIDA AS FOLLOWS: 1. That a non-exclusive Cable Television Franchise is hereby granted by the City of Delray Beach to Adelphia for the provision of cable television services, including the operation and maintenance of a Cable Television System in the City of Delray Beach, Florida. AdA'A,tÌYy,.\ 4$'rMb~-~ I ~ ß ,,Þ 2. That the City Manager is herby authorized to execute a non-exclusive Cable Television Franchise Agreement with Adelphia Cable Partners, LP and National Cable Acquisition Associates, LP, Subsidiaries of Adelphia Communications Corporation (collectively 'Adelphia') on behalf of the City of Del ray Beach. PASSED AND ADOPTED in regular session on this the 1st day of March, 2005. MAYOR ATTEST: City Clerk ~ ~ FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT ("Agreement") is made this _ day of , 2005, by and between the CITY OF DELRA Y BEACH (the "City") and Adelphia Cable Partners, LP and National Cable Acquisition Associates, LP, subsidiaries of Adelphia Communications Corp. ("Adelphia" or "Franchisee") ; WHEREAS, pursuant to the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. §521 ("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 _, the Commission adopted Ordinance No. _ entitled "Cable Television" to update the terms and conditions for the operation of Cable 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, Franchisee's existing Franchise granted by the City expired on July 22, 2004; and WHEREAS, Adelphia desires to renew its Franchise to construct, install, maintain, and operate a Cable System in the City and has applied to the City for a renewal of such Franchise; and C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK 146\Delrayfranchise.2.28.c1eanl.doc 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 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: C: \Documents and Settings\inglese\Local Settings\ Temporary Internet Files\OLK146\Delrayfranchise.2.28.cleanl.doc 2 Section 1. Definitions. Except as otherwise provided specifically herein, the definitions in Chapter 93 of the City Code shall govern this Agreement. In addition, the following definitions shall 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 generally 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 . . programmIng 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 Adelphia Communications Corp. ("Adelphia"), and its lawful and permitted successors, assigns and transferees pursuant to Sections 32 and 33 of this Agreement and the Ordinance. 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 93 of the Code of the City of Delray Beach, Florida, as such existed on the Effective Date of this Agreement. Section 2. Grant of Franchise. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK I46\Delrayfranchise.2.28 .clean I.doc 3 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 all 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 following 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 often (10) years commencing from the Effective Date and shall terminate [March 1,2015], unless otherwise sooner terminated or otherwise extended in accordance with the terms of this Agreement and the Ordinance. Section 4. Non-Exclusive Franchise. The Franchisee's right to use and occupy the Streets and rights-of-way shall be non- exclusive pursuant to Section 93.05 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. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK146\Delrayfranchise.2.28.cleanl.doc 4 Section 5. Agreement Subject to Communications Act, State Law and City Code. A. This Agreement is subject to and shall be governed by all 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 shall 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 all 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 shall control as provided herein. Section 6. Franchisee Subject to Other Laws, Police Power. A. Franchisee is subject to and agrees to comply with all generally applicable local, City, state and federal laws, ordinances, rules, regulations and orders, existing or hereafter lawfully adopted. The City and the Franchisee agree to comply with all applicable Florida Statutes. B. The Franchisee shall at all times be subject to all lawful exercise of the 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 5 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 subject 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. Franchisee shall obtain and maintain insurance of the types and minimum amounts required in Section 93.11 of the Ordinance in such a manner as to comply with each and every requirement of that section. B. The Franchisee shall 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 shall be subject to fines and other enforcement remedies, including but not limited to revocation pursuant to the procedures set forth in Section 93.26 of the Ordinance. C. In the event of any request for modifications or transfers of the Franchise, Franchisee shall 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK146\Delrayfranchise.2.28.cleanl.doc 6 any prior conditional approval requested by the Franchisee, pursuant to Section 93.09 of the Ordinance. D. All 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. Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its elected or appointed officials, employees, committees and boards, in accordance with Section 93.11 of the Ordinance. 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 Section 93.11. To the extent Section 93.11 requires the consent of the City Attorney, such consent shall not be unreasonably withheld. Section 10. Security Fund. A. In compliance with Section 93.12 of the Ordinance, Franchisee shall provide to the City a performance bond in the amount of two hundred thousand dollars ($200,000) to ensure the faithful performance of all provisions of this Agreement, the Ordinance, and all applicable local, state and federal law. The 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, C: \Documents and Settings\inglese\Local Settings\ Temporary Internet Files\OLK146\Delrayfranchise.2.28.cleanl.doc 7 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 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 93.13 of the Ordinance, prior to any significant Cable System construction, upgrade, rebuild or other significant work in the Streets of the 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 shall 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK146\Delrayfranchise.2.28.cleanl.doc 8 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 all times to comply with and abide by all generally 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 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 install its own competitive Cable System, then the City shall 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 shall 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:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK 146\Delrayfranchise.2.28 . clean I.doc 9 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 shall also provide specifications as needed for trenching. Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Franchisee fails to install 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 93.16 of the Ordinance and Section 16 hereof. D. Franchisee's Cable System shall transmit to Subscribers any stereo signals and any other form of advanced television signals, including but not limited to high-definition C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK146\Delrayfranchise.2.28.clean1.doc 10 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 shall fully comply with all applicable laws concerning handicapped or disabled persons. Section 14. Technological Improvements to System. A. Throughout the term of this Agreement, compliance with this Section 14 shall be deemed compliance by the Franchisee with Section 93.14 of the Ordinance. B. State-of-the-Art. 1. Within thirty (30) days after the Fifth Anniversary of the effective date of this Agreement, the Franchisee shall submit a written report to the City in a form reasonably satisfactory to the City Manager, that discusses the Cable System capacity and Cable Services offered on any of the 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 technically 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 Commercially 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 11 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 shall 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 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 shall 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 following the procedures set forth in Section 93.25 of the Ordinance and shall be considered in any renewal proceedings. C. 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 generally applicable requirements. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK 146\Delrayfranchise.2.28.clean l.doc 12 D. 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. E. 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 of a separate agreement between the parties. 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 three (3) activated downstream Access Channels in accordance with this section and at least one (1) return line and a maximum of two (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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.clean1.doc 13 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. Franchisee shall deliver to the City a third channel for the City's exclusive use ("Third Access Channel") if, at any time, the First and Second Access Channels are 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 Franchisee shall provide the exclusive use of the Third 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 and Second Access Channels have met the criteria set forth above. 2. The City may elect to carry County or other municipal or educational programming in all or in part on City Access Channels and such programming shall 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 three (3) Access Channels. In accordance with federal law and Section 93.16 of the Ordinance, Franchisee will be entitled to use any PEG Access Channel capacity for the provision of other services at any C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.clean1.doc 14 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 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 15 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 of the Franchisee to provide the PEG channels required by Section 16(A) of this Agreement may result in the imposition of liquidated damages in the amount of one thousand dollars ($1,000) per day per violation after following the procedures set forth in Section 93.25 of the Ordinance. 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 Eighty Seven Thousand Five Hundred Dollars ($87,500) per year during each year the franchise is in effect, and payable within ten (10) days of the effective date hereof, and by March 15th of each subsequent year. 2. The City acknowledges that under FCC rules, the Capital Grant may be passed through to Subscribers. Franchisee agrees that if the 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. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK 146\Delrayfranchise.2.28 .clean l.doc 16 · 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) of the 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 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 17(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 Section 93.25 of the Ordinance. Section 18. Service to Schools. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 17 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. 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. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 18 A. Franchisee shall at minimum comply with all FCC rules on emergency use of facilities. 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 his/her 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 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. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 19 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 93.17 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. 1. Franchisee shall pay the City a Franchise fee of five percent (5%) of Franchisee's Gross Revenues derived from the operation of the 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK 146\Delrayfranchise.2.28.c1ean I.doc 20 allowed 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 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK146\Delrayfranchise.2.28.cleanl.doc 21 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; (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 his/her designee, Franchisee shall furnish the City with all of the information as required under Section 93.18 of the C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 22 · " Ordinance, except those reports required by Section 93.18 (a)(4) and (b)(2) (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 shall 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 shall 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 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:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK 146\Delrayfranchise.2.28.clean l.doc 23 · " 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 93.19 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. Pursuant to Section 93.19 of the Ordinance, 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. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 24 · " Franchisee shall file an Application with the City for any modification of this Agreement in accordance with the federal Communications Act and Section 93.08 of the Ordinance. 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 Sections 93.08 and 93.24 of the Ordinance. 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. Section 32. Procedures for Requesting Approval of Transfer. In compliance with the requirements set forth in Sections 93.08 and 93.24 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 of the 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 Franchisee, 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 shall include the following: 1. A statement of the reason for the contemplated transfer. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 25 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 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 of the 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK 146\Delrayfranchise.2.28.clean l.doc 26 11 , 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 terms 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: 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. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK146\Delrayfranchise.2.28.cleanl.doc 27 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 names, 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 more of the ownership of the proposed transferee and the respective ownership share of each such person or entity. Section 33. Dispute Resolution Procedures. A. Except as provided in Subsection B below, any disputes between the City and Franchisee under this Agreement shall be handled in accordance with Sections 93.19 (t) and (u), 93.25 and 93.26 of the Ordinance. B. Either party may seek mediation and the party seeking mediation shall provide written notice to the other party. Ifboth parties consent to mediation, the mediator, who shall 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. C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.clean1.doc 28 .. " 3. Each party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally 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) of the 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. 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 of the 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 29 .,.. " _If regulations, Franchisee shall pay fifty dollars ($50.00) per violation for each day the violation continues. 2. Unless otherwise provided herein or in the Ordinance, for all other violations of this Agreement or the Ordinance, except those violations of the customer service standards set forth in Section 93.19 of the Ordinance 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. If the 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 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 93.25 of the Ordinance. C. This Franchise is subject to revocation pursuant to Section 93.26 of the Ordinance 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 the Ordinance shall 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLK146\Delrayfranchise.2.28.cleanl.doc 30 '" r· 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. 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 and in accordance with Section 93.14 of the Ordinance. 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. 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 38. 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28.cleanl.doc 31 f" I t 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 tenns 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 39. 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 tenus and conditions of this Agreement. Franchisee's failure to comply in full with this section shall render 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 40. 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 C:\Documents and Settings\inglese\Local Settings\Temporary Internet Files\OLKI46\Delrayfranchise.2.28 . clean l.doc 32 ... .- Delray 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 Delray Beach 100 NW 1st Avenue Delray Beach, FL 33444 Attention: City Manager With a copy to: City of Delray Beach 100 NW 1st Avenue Delray Beach, FL 33444 Attention: City Attorney Section 41. 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. All 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. 33 .... .. Section 42. 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 DELRA Y BEACH, FLORIDA By: Name Title Attest: City Clerk Date filed with City Clerk: Agreed to and accepted by Franchisees: 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 Managing Member's General Partner By: Joe W. Bagan Its: Senior Vice President of Operations Date: 34 .~ -- National Cable Acquisition Associates, L.P., a Delaware limited partnership d/b/a Adelphia Cable Communications By: ACC Operations, Inc. a Delaware corporation Its: General Partner's General Partner By: Joe W. Bagan Its: Senior Vice President of Operations Date: Witnesses: 35