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HomeMy WebLinkAboutCity of Tamarac Ordinance O-1983-039Introduced by: f% Temp. #1058 Revised 9/19/83 Second Rev. 9/19/83 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 _7 3' 19 20 21 22 23 24 25 26 27 P11:l si 32 33 34 35 ORDINANCE NO. 0-73'.3 AN EMERGENCY ORDINANCE APPROVING THE TRANSFER AND ASSIGNMENT OF THE NON-EXCLUSIVE FRANCHISE FOR A COMMUNITY ANTENNA TELEVISION SYSTEM GRANTED TO AMERICAN VIDEO OF TAMARAC, INC. BY ORDINANCE NO. 0-73-36 (AS AMENDED) TO AMERICAN CABLESYSTEMS OF FLORIDA, A LIMITED PARTNERSHIP; REPEALING ALL ORDINANCES IN CONFLICT; AMENDING SECTION OF THE PROVISIONS FOR CITY COMPENSATION OR FRANCHISE FEE; PROVIDING A NOTICE REQUIRE- MENT, PROVIDING A STATEMENT OF THE SERVICES OFFERED; RATIFYING THE RATE SCHEDULE IN ORDI- NANCE 0-82-26; PROVIDING FOR RECORDATION IN THE PUBLIC RECORDS OF BROWARD COUNTY AND PROVIDING WHEREAS, the City of Tamarac had granted a non-exclusive franchise to operate and maintain a Community Antenna Television System to American Video of Tamarac, Inc. (hereinafter referred to as "American Video"), its successors and assigns, by Ordinance No. 0-73-36, (as amended by Ordinances Nos. 0-76-86, 0-79-52, 0-79-63, and 0-82-26); and WHEREAS, American Video has entered into an agreement to sell its assets to American Cablesystems of Florida,,A Lim ited Partnership (hereinafter referred to as "American Cable"); and WHEREAS, Section 7.19 (b) of the City Charter requires that no franchise shall be assigned except with the consent of Council expressed by ordinance; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF TAMARAC, FLORIDA; During the Council recess a closing was scheduled for October 1, 1983 for the purchase by American Cable of the Assets of American Video with great financial loss at stake if the deadline is not met; and since a transfer of the fran- chise must be accomplished by ordinance; and this being the first njeeting of City Council since the recess; and the City Council not desiring to jeopardize the Cable TV service of the Citizens of Tamarac who are presently being serviced by American Video; it is hereby determined that an emergency exists justifying consideration of this ordinance as an - -- emergency ordinance. 1 2 3 4 !: 5 tr 6 71 81 a 10 11 12 13 14 15 7 18 19 20 21 22 23 24 28 '9 i -,,I 31 32 33 34 35 SECTION_ 2: CITY COMPENSATION The provisions of Section 11, "City Compensation", of Ordinance 0-73-36 as amended by Ordinance 0-79-63 are hereby repealed and in its place is amended to provide as follows: "American Cable shall pay to the City a franchise fee equal to three percent (3%), or in a greater amount to the maximum which may be provided by law, of gross revenues collected by American Cable. American Cable shall assist the City in any rate applications, petitions or procedures with any governmental regulatoy agencies. Regardless, the minimum annual franchise fee shall be $20,000. For the purpose of this ordinance, "gross revenues" is defined as all compensation received by American Cable arising from but not limited to its regular monthly charges for its basic service and premium channels, advertising, lease channel operation, installation charges or any other income received from or for service to its subscribers or customers in the City. Gross receipts shall not include any taxes collected by American Cable as required by law or subscriber deposits. Payments shall be made quarterly based on a calendar year unless American Cable notifies the City in writing of a fiscal year it prefers to use. Payment shall be made to the City within thirty (30) days after each quarter. In the event any monies are due and owing under this franchise are not timely paid as specified herein, the City may impose a late charge of ten percent (10%) of the amount due. Payment shall be accompanied by a report in a form reasonably acceptable to the City, showing the gross receipts of American Cable for the quarter. American Cable shall file annually within 90 (ninety) days of the close of the calendar year, an accounting, certified by - the senior financial officer of American Cable, or a certified public accountant which states the annual gross receipts and franchise fee. (If the quarterly payments are made on the basis of a fiscal year, then the accounting shall be submitted within ninety (90) days after the end of the fiscal year.)" 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 i8 19 20 21 22 23 24 25 26 27 28 29 ?0 J1 ' 32 33 34 35 SECTION 3.: NQ2JLZ Section 15 of Ordinance 0-73-36 is hereby created to provide as follows: "Section 15: Notice. Notice under this ordinance shall be in writing sent by hand delivery or Certified Mail (return receipt) to the following addresses: CITY MANAGER CITY OF TAMARAC 5811 N.W. 88 Avenue Tamarac, Florida 33321 Barry D. Lemieux American Cablesystems Corporation Bass River Research Center 30 Tozer Road Beverly, Mass. 01915 and American Cablesystems of Florida 6115 N.W. 77 Way Tamarac, Florida 33321 If either party changes its business address, then notice of the change shall be given to the other party." SEC ION 4: SERVICES OFF EM Section 16 of Ordinance 0-73--36 is hereby created to provide as follows: "Section 16: Schedule of services offered. The following channels or stations shall be offered by American Cable. Changes in the schedule may be made at the discretion of American Cable, however notice shall be given to the City of all changes thirty (30) days before the change becomes effective whenever possible. Failure to make timely notice shall constitute a breach of this franchise agreement: SELECTOR 2 2-WPBT Miami Public Television 3 Stockmarket --Reuters News 4 4-WTVJ Miami, CBS 5 5-WPTV West Palm Beach, NBC 6 6-WCIX Miami Independent 7 7-WCKT Miami, NBC 8 Weather -The Weather Channel 9 ESPN-Entertainment and sports network 10 10-WPLG Miami, ABC 11 TBS Atlanta-WTBS "Super 17" Atlanta 12 12-WPEC West Palm Beach, ABC 13 TV Program guide --Programming schedule 14 HBO -Home Box Office (premium) 15 USA -The USA Network 16 CNN -Cable News Network 17 CNN Headline News --News 24 hours - 3 -- 1 2 3 4 5 6 7 9 it 12 13 14 15 7 18 19 20 21 22 23 24 28 2g ;fl 31 32 33 34 35 18 MAX -Cinemax (premium) 19 ACCESS -Local access 20 SNC-Satellite News Channel 24 hours 21 SHO-Showtime (premium) 22 MTV -Music Television 23 NIK-Young people's programs 24 WOR-New York City 25 CHN--Cable Health Network 26 TNN-The Nashville Network 27 SPN-24 hour family entertainment 28 DAY/ARTS-Women's and cultural programs 29 FINANCIAL NEWS -Stock Market 24 hours 30 17-WLRN Miami Public broadcasting 31 23-WLTV Miami all Spanish broadcasts 32 29-WFLX West Palm Beach Independent 33 39-WDZL Miami Independent 34 42-WHRS Boynton Public Television 35 45-WHFT Miami Independent 36 51-WKID Fort Lauderdale Independent ,SECTION 5: Subsection 2.A "REVISED SCHEDULE OF MAXIMUM RATES", of Ordinance 0-79-52 as amended by Section 1 of Ordinance 0-82-26 is hereby ratified. In addition, the monthly rate schedule for premium channels is as follows: Each Additional First Premium Program Primary Outlet Primary: HBO $ 9.50 -0- Cinemax 11.00 -0-- Showtime 11.00 -0- Subsequent Premium Programs: Cinemax 7.00 -0- Showtime 9.00 -0- Installation (if not installed at time of initial cable service) Primary Outlet 20.00 --0- (Except Bulk Billing) CTION 6: The City Council hereby consents to the assignment of the non-exclusive franchise for a Community Antenna Television System granted to American Video of Tam- arac, Inc. its successors and assigns by Ordinance No. 0-73-35 (as amended) to American Cablesystems of Florida, A Limited Partnership. American Cable shall be bound by the terms of this Ordinance upon the actual transfer of this franchise. An executed copy of a document evidencing the trans- fer and assignment and indicating the acceptance by American Cablesystems of Florida, A Limited Partnership of all of the terms and conditions is attached as exhibit A. SECTION 7: The City Clerk is authorized and directed to record a certified copy of this Ordinance in the public records of Broward County, Florida. - 4 - 2 2' 3 4 22 25 IV 29 al 29 � a0 ,9ECTIQN A: All ordinances or parts of ordinances in conflict herewith are hereby repealed. Any Federal Communication Comission Regulations, or State or federal law in conflict with this ordinance shall supercede it. SECTION 9: This ordinance shall become effective immediately upon its final passage. PASSED FIRST READING THIS day of 1983 PASSED SECOND READING THIS day of _ 1983 MA R T�Ey�ST�: - z', CITY CLERK I HEREBY CERTI Y that I have approved y the form and rrectness of this ORDINANCE. ty Attorney RECORD OF COUNCIL VOTE MAYOR FALCK: a-�P DIST. 1: C/M KRAVITZ: DIST. 2: VIM Mq$$ARp: DIST. 3: GM STELZER: DIST. 4: GM giANTZ;—__. - 5 - s EXHIBIT "A" ASSIGNMENT OF FRANCHISE THIS ASSIGNMENT (this "Assignment") is made and entered into on this 30th day of September, 1983, by AMERICAN VIDEO CORPORA- TION, a Florida corporation (the "Seller") in favor of AMERICAN CABLESYSTEMS OF FLORIDA, A LIMITED PARTNERSHIP, a Massachusetts limited partnership (the "Buyer"). W I T N E S S E T H: WHEREAS, Seller and AMERICAN CABLESYSTEMS CORPORATION, a Delaware corporation ("American") are parties to an Agreement of Purchase and Sale, dated as of May 9, 1983 (the "Purchase Agree- ment"), pursuant to which Seller agreed to sell, assign, trans- fer and convey to American, or American's successors or assigns, all of Seller's rights, titles and interests in and to certain assets of Seller described in the Purchase Agreement; and WHEREAS, by an Instrument of Assignment dated September 29, 1983, between American and Buyer, American assigned to Buyer its right to purchase said assets (other than the assets set forth in Schedule A to said Instrument of Assignment (the "Scheduled Assets")) to be sold, assigned, transferred and conveyed by Seller pursuant to the Purchase Agreement; and WHEREAS, by an Instruction Letter dated September 29, 1983, from American to Seller (the "Instruction Letter"), American directed Seller to transfer and assign the Scheduled Assets to Buyer; and WHEREAS, Seller now desires to sell, assign, transfer and deliver. to Buyer all of Seller's rights, titles and interests in and to said assets (including the Scheduled Assets) of Seller in accordance with the requirements of the Purchase Agreement and the directions set forth in the Instruction Letter. NOW, THEREFORE, in consideration of the premises hereof and MCCARTHY, UBIT, CRYSTAL, KLFINMAN & HAIMAN CO., L.P.A. Attorneys and Counselors at Law 900 Illuminating Bldg. a 55 Public Square 0 Cleveland, Ohio 44113 • 216 / OW1422 PAGE 1 OF 4 93'3� EXHIBIT "A" other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Seller, intending to be legally bound, does hereby sell, grant, assign, bargain, release, convey, transfer and deliver to Buyer, effective as of the date hereof, the following properties and assets: SECTION 1. TRANSFER. Seller hereby unconditionally sells, assigns; transfers and delivers to Buyer all of Seller's right, title and interest in and to the franchise granted to Seller by the City of Wilton Manors, Florida, pursuant to a certain Agreement for the construction, operation and maintenance of a community antenna television system within the City of Wilton Manors, dated June 26, 1973, said Agreement having been approved by Special Ordinance No. 217, four (4) Modifying Agreements dated July 9,, 1974, June 24, 1975 and December 12, 1978 , and June 14, 1983, respectively, the last such modification being approved by Special Ordinance No. 528, and Resolution No. 876, dated June 14, 1983. SECTION 2. BINDING EFFECT. This Assignment shall be binding upon and shall inure to the benefit of Seller and Buyer and their respective successors and assigns. IN WITNESS WHEREOF, Seller has caused this Assignment to be executed and delivered by its duly authorized officers on the date first above written. AMERICAN VIDEO CORPORATION Attest:U-,%�By �1 Jarf L. Brundage,Ptesident The undersigned hereby unconditionally accepts this Assignment and agrees to be bound by the terms of the subject franchise, as amended. AMERICAN CABLESYSTEMS OF FLORIDA, A LIMITED PARTNERSHIP, a Massachusetts limited partnership By: AMERICAN CABLESYSTEMS OF FLORIDA, INC. as General Partner Attest: x, By:— Presi ent - 2 - MCCARTHY, IZBIT, CRYSTAL, KLEINMAN & HAIMAN CO.. L.P.A. Attomeys and Counselors at Lew 900 Illuminating Sidg. « 55 Public Square • Cleveland, Ohio 44113 • 216 / OW1422 PAGE 2 OF 4 0�1XV4g3J 3 1 1 EXHIBIT "A" City of Tamarac AGREEMENT OF ACCEPTANCE OF FRANCHISE THIS AGREEMENT is made and of September, 1983, by American Limited Partnership ("Buyer"). entered into as of the 30th day Cablesystems of Florida, a W I T N E S S E T H WHEREAS, American Video Corporation ("Seller") and American Cablesystems Corporation ("ACC") are parties to an Agreement of Purchase and Sale, dated as of May 9, 1983 (the "Purchase Agreement"), pursuant to which Seller has agreed to sell, assign, transfer and convey to ACC or its assignee and the successors and assigns of ACC or such assignee, all of Seller's right, title and interest in and to the cable television systems of Seller located in Broward County, Florida; and WHEREAS, Buyer is the assignee of ACC for purposes Of acquiring the cable television franchise identified hereinbelow, and Seller is as of this date executing and delivering to Buyer a Bill of Sale and Assignment, Assignments of Franchises and certain other agreements and documents to vest in Buyer all of Seller's right, title and interest in and to such assets of Seller; and WHEREAS, Buyer is executing and delivering to Seller an Agreement of Assumption of Liabilities relating, among other things, to the obligations of Seller arising after the date hereof under the cable television franchise identified herein - below; and WHEREAS, Buyer desires further to carry out the intent and purpose of the Purchase Agreement by the execution and delivery of this Agreement; NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Buyer intending to be legally bound hereby, agrees as follows: SECTION 1. FRANCHISE. Reference is hereby made to Ordinance No. 7 -36 of the City Council of Tamarac, Florida, as amended (the "Franchise"), granted by the City of Tamarac, Florida (the "Grantor"), and to Ordinance No. 83-39 approving the transfer and assignment of the franchise granted thereby to the Buyer. SECTION 2. ACCEPTANCE. Buyer hereby unconditionally accepts the Franchise and agrees and promises to comply with and abide by all its provisions, terms and conditions. PAGE 3 OF 4 e9� g3-31 1 EXHIBIT "A" -2- SECTTON 3. BINDING EFFECT. This Agreement shall be binding upon the Buyer, its successors the benefit of the Seller and successors and assigns. and assigns, and shall inure to the Grantor, and their respective IN WITNESS WHEREOF, Buyer has caused this Agreement to be duly executed and sworn to on its behalf by a duly authorized officer of its general partner, as of the day and year first above written. AMERICAN CABLESYSTEMS OF FLORIDA, A LIMITED PARTNERSHIP By American Cablesystems of Florida, Inc., its General Partner [SEAL] By - -- Vic esi STATE OF NEW YORK ) COUNTY OF NEW YORK) SS. I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to administer oaths to take_ acknowledgments, personally appeared known to me to be a Vice Presidl6kt'bf AjfieYidan Cablesystems of Florida, Inc., which is general partner of American Cablesystems of Florida, a Limited Partnership, to me known, to be the person who executed the foregoing Agreement in such capacity, and (s)he acknowledged before me that (s)he executed the same. Sworn and subscribed to me, this day of < 1983. [Notarial Seal] My Commission expires: JILL M. JACKSON Notary Public State of New York No. 43-4766104 Quallfled In Richmond County Commission Expires March 30, 19114 For!" �y r� Notary V PAGE 4 OF 4