Loading...
HomeMy WebLinkAboutCity of Tamarac Resolution (205)Temp Reso. #9805 Page 1 May 29, 2002 Rev 1 - July 10, 2002 CITY OF TAMARAC, FLORIDA RESOLUTION NO, R-2002-205 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING THE CHANGE OF CONTROL OF THE MEDIAONF OF GREATER FLORIDA, INC., CABLE TELEVISION FRANCHISE AGREEMENT TO AT&T COMCAST CORPORATION; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Media One of Greater Florida, Inc., Inc. ("Franchisee"), a subsidiary of AT&T Broadband, LLC ("Comcast Corp."), is duly authorized to operate and maintain a cable system in the City of Tamarac ("City") pursuant to a franchise (the "Franchise") granted by the City; and WHEREAS, pursuant to the Separation and Distribution Agreement between AT&T Corp. ("AT&T") and AT&T Broadband Corp. and the Agreement and Plan of Merger between AT&T and Comcast Corp., a newly formed entity, AT&T Comcast Corporation ("AT&T Comcast"), will assume ultimate parent company ownership and control of the Franchisee (the "Transaction"); and WHEREAS, on or about March 8, 2002, the City received an FCC 394 and an Application for City consent by the City Commission to the proposed change of control of the Franchisee; and WHEREAS, pursuant to Ordinance No. 5.5-21 through 5.5-55 of the City ("Ordinance") and the Franchise Agreement, no such change of control may occur without prior approval of the City Commission of the City of Tamarac; and WHEREAS, the City has required that the Franchisee fulfill its obligations, pursuant Temp Reso. #9805 Page 2 May 29, 2002 Rev 1 - July 10, 2002 to the Ordinance and Franchise Agreement, and provide information on the proposed transaction including details on the legal, financial, technical and other qualifications of the AT&T Comcast and on the potential impact of the transfer on service; and WHEREAS, under FCC Rules, 47 C.F.R. Section 76.502, the City has 120 days plus any extensions thereto 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, Franchisee has represented to the City that it has taken all actions and implemented all practices necessary to insure that Franchisee is in compliance with all applicable provisions of the Ordinance and Franchise Agreement; and WHEREAS, the City has required written acceptance from Franchisee and written acceptance by AT&T Comcast of the terms and conditions of this Resolution as a condition precedent to adoption of this Resolution (attached hereto as Exhibit A); and WHEREAS, in the event the Transaction is not consummated by March 31, 2003 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, the approval granted in this Resolution shall be null and void unless otherwise extended by agreement of the parties. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: Section 1. The foregoing recitals are approved and incorporated herein by reference. Temp Reso. #9805 Page 3 May 29, 2002 Rev 1 - July 10, 2002 Section 2. To the extent required, the City hereby consents to the change in ultimate control of the Franchisee. Section 3. That the consent granted herein does not constitute and should not be construed to constitute a waiver or release of any obligations of the Franchisee under the applicable terms of the current Ordinance and Franchise Agreement. Section 4. That the consent granted herein does not and should not be construed to constitute a waiver of any right of the City or Franchisee under applicable law, including but not limited to, the applicable provisions of the Ordinance or the Franchise Agreement; and further, this consent shall not prejudice the City's rights with respect to the enforcement, renewal or transfer of the Franchise Agreement, whether the non-compliance arose before or after the Transaction. Section 5. That the consent granted is conditioned upon (a) Franchisee's assurances set forth in its affidavit submitted to the City on } and attached as Exhibit A; (b) Franchisee's assurances as set forth in Exhibit B attached; (c) the letter agreement referencing payment to the City which is attached as Exhibit C; and (d) the Performance Guaranty Agreement in the form attached as Exhibit D. Section 6. That this Resolution shall have the force and effect of continuing the Franchise Agreement between the Franchisee and the City (as the Franchise Authority), to the extent consistent with the applicable provisions of the Ordinance, the Franchise Agreement and Exhibits A, B, C and D attached hereto. Section 7. That the City hereby reserves all of its rights pursuant to Federal, State and including but not limited to, (a) the right to consider violations of the franchise by the Franchisee, either prior to or subsequent to the Transaction; (b) the franchise transfer Temp Reso. #9805 Page 4 May 29, 2002 Rev 1 - July 10, 2002 process, including but not limited to, the right to act upon any application to sell, assign or otherwise transfer any interest in the Franchisee or the cable system; and (c) the enforcement of the applicable terms of the current Ordinance and the Franchise Agreement Section 8. That the consent herein granted expressly does not waive and expressly reserves to the City its rights to fully exercise all applicable legal rights and authority with regard to Franchisee in connection with any use of the City's rights -of -way not authorized by the City, including but not limited to, levying fines or instituting litigation for trespass and ejectment. Section 9. That the consent herein granted is an express non -waiver and reservation of the City's rights and authority against Franchisee for any Franchise violations that may exist, including but not limited to, those in connection with any unauthorized use of Franchisee's facilities, by any entity in any way affiliated with Franchisee, its affiliates, parent or subsidiary. Section 10. That the consent granted herein is subject to AT&T Comcast obtaining all required federal and state approvals, licenses, and permits required with respect to the Transaction. Section 11: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 12: If any clause, section, other part or application of this Resolution is hereby held by any court of competent jurisdiction to be unconstitutional or invalid, in part or in application, it shall not affect the validity of the remaining portions or applications of this Resolution. 11 Temp Reso. #9805 Page 5 May 29, 2002 Rev 1 - July 10, 2002 Section 13: That this Resolution shall become effective upon the date of its adoption herein. PASSED, ADOPTED AND APPROVED THIS 101h DAY OF July, 2002. ATTEST: )ILA MARION SWENSON, CMC CITY CLERK I HERE Y CERTIFY that I have a proved this RESOL TI "Ias to fob MIT HELL S. K AF/ CIT ATTORNEY i_ 1 By:�_ JOE SCHREIBER MAYOR RECORD OF COMMISSION VOTE: MAYOR SCHREIBER AYE DIST 1: V/M. PORTNER AYE DIST 2: COMM. MISHKIN AYE DIST 3: COMM. SULTANOF AYE DIST 4: COMM. ROBERTS AYE 11 EXHIBIT A UNCONDITIONAL ACCEPTANCE OF TERMS OF RESOLUTION NO. R-2002-205 BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath deposes and states that: 1. Affiants are, respectively, the Senior Vice President of AT&T Broadband, LLC ("AT&T Broadband") and the person authorized to execute this docwrient on behalf of Mediaone of Greater Florida, Inc., (the "Franchisee") and the of AT&T Comcast Corporation ("AT&T Comcast"), and the person authorized to execute this document on behalf of AT&T Comcast, for the Change of Control of the Franchisee, as set forth on the FCC Form 394 received by the City of Tamarac, Florida (the "City"), on or about March 8, 2002 (the "Change of Control"). 2. Affiants are submitting this Affidavit as a condition precedent to the approval of the Application for Change of Control of the Franchisee from AT&T Corp. to AT&T Corncast. 3. Franchisee affirms that it is and will continue to be bound by and shall assume all the lawful and applicable terms and conditions of the cable television Ordinance 5.5-21 through 5.5-55 (the "Ordinance"), the current franchise agreement between the Franchisee and the City (the "Franchise Agreement") and any lawful amendments and agreements related thereto (the Ordinance, Franchise Agreement and such amendments and agreements are collectively referred to herein as the "Franchise") and the Resolution of the City Commission of the City approving the Change of Control of the Franchisee from AT&T Corp. to AT&T Corncast. r -I L-A • 4. AT&T Corncast hereby attests and acknowledges that the Change of Control will not affect, diminish, impair or supersede the binding nature of the existing valid ordinances, resolutions and agreements applicable to operation of the cable system in the City, including but not limited to, the Ordinance, Franchise Agreement and any guarantees provided herein. 5. Franchisee hereby acknowledges and agrees that the following issues concerning Franchisee's compliance with the Ordinance and Franchise Agreement shall be resolved as set forth herein: A. Franchisee and AT&T Comcast recognize and acknowledge that the financial qualifications of AT&"f Comcast are an important and relevant consideration of the City for the evaluation of the proposed Change of Control, and in particular, the assurance that sufficient financial resources are available to Franchisee to rneet the obligations of the Franchisee under the 0 terms of the Franchise. Accordingly, Franchisee or AT&T Corncast represent or warrant as 0 follows: (i) AT&T Comcast and Franchisee represent and warrant that the Change of Control will not have any adverse financial effect on the System, such that Franchisee's financial resources necessary to comply with the terms and conditions of the Franchise are not adversely affected. AT&T Comcast acknowledges and agrees thatt from and after the Change of Control it will not take any action that prevents the Franchisee's full performance of the applicable provisions of the Franchise and this Unconditional Acceptance. (ii) Franchisee represents and warrants that after the Proposed Transaction, Franchisee's financial resources will be such as shall enable it to maintain and operate the Systern in compliance with all requirements of the Franchise. (iii) Franchisee shall provide a Performance Guarantee Agreement in the form attached hereto from Mediaone of Delaware, Inc. (iv) AT&T Comcast represents and warrants that the costs associated with the Change of Control shall not result in any increase in subscriber rates. Nothing shall prohibit Franchisee, however, from taking rate increases in the ordinary course of business in compliance with local, state and federal laws that are not caused by the costs associated with the Change of Control. B. (1) Franchisee hereby acknowledges and recognizes that the Ordinance, sets forth the requirement that the Franchisee shall develop written procedures for the investigation and resolution of all subscribers or City resident complaints, including, but not limited to those regarding quality of service and equipment malfunction, and that such procedures shall be 0 submitted for the review and approval by the City Manager. Notwithstanding the above, on or about December 21, 2001, Franchisee distributed to its subscribers the AT&T Broadband Policies and Practices (the "Policies"), which sets forth, in part, policies, complaint procedures and dispute resolutions for its cable subscribers. Franchisee agrees that within thirty (30) days following adoption of the Resolution, it will notify, in writing, all subscribers located within the City that Section 10 of the Policies has been withdrawn (as so amended by such withdrawal of Section 10, the "Amended Policies"). (ii) The City has reviewed the Amended Policies and, has found them acceptable in accordance with the requirements of the Ordinance. (iii) Franchisee hereby acknowledges that this Acceptance does not in any manner diminish or impair the rights of the City with respect to firture violations and remedies 0 F-7 i� available to the City under the Franchise Agreement or Ordinance and the City hereby waives any liquidated damages with respect to the alleged violation arising out of the Policies. (iv) Franchisee hereby agrees that any fitture revisions of any and all customer service standards or policies or any such new standards and policies shall be submitted to the City before distribution to subscribers as required by the applicable provisions of the Franchise. (v) Franchisee agrees that in the event of a conflict between the Amended Policies and applicable law, the Franchise Agreement, the Ordinance and applicable law shall control over the Amended Policies. Franchisee and the City agree that their relationship is governed solely by the Franchise Agreement and the Ordinance and that the Amended Policies do not apply to the City. C. (i) Franchisee hereby acknowledges and recognizes that the Ordinance, sets forth the requirement that the Franchisee shall develop written procedures for the investigation and resolution of all subscribers or City resident complaints, including, but not limited to those regarding quality of' service and equipment malfunction, and that such procedures shall be submitted for the review and approval by the City Manager. Notwithstanding the above, on or about December 21, 2001, Franchisee distributed to its subscribers AT&T Broadband's Risk Assessment and Deposit Policy (the "Risk Assessment Policy"), which sets forth, in part, AT&T Broadband's intent to check potential subscribers credit history and implement policies on subscriber security deposits. Franchisee agrees that within thirty (30) days following adoption of the Resolution, it will notify, in writing, all subscribers located within the City that the Risk Assessment Policy has been amended to include non-discriminatory language, see Exhibit A attached hereto for the amended Risk Assessment Policy. (ii) The City has reviewed the amended Risk Assessment Policy and, has found them acceptable in accordance with the requirements of the Ordinance. (iii) Franchisee hereby acknowledges that this Acceptance does not in any manner diminish or impair the rights of the City with respect to future violations and remedies available to the City under the Franchise Agreement or Ordinance and the City hereby waives any liquidated damages with respect to the alleged violation arising out of the Risk Assessment Policy. (iv) Franchisee hereby agrees that any fixture revisions of any customer service standards and policies shall be submitted to the City before distribution to subscribers as required by the applicable provisions of the Ordinance. (v) Franchisee agrees that in the event of a conflict between the amended Risk isAssessment Policy and applicable law, the Franchise Agreement, the Ordinance and applicable law shall control over the amended Risk Assessment Policy. Franchisee and the City agree that their relationship is governed solely by the Franchise Agreement and the Ordinance and that the amended Risk Assessment Policy does not apply to the City. D. AT&T Broadband and certain of its affiliates and subsidiaries are the subject of a current investigation and administrative inquiry by the Attorney General of the State of Florida that may result in legal action against such entities. Franchisee agrees that it shall comply with all federal and state law, including any decision by the Attorney General of the State of Florida with respect to consumer protection and arising out of such investigation and inquiry. Franchisee further agrees that by consenting to the Change of Control, the City shall not have waived any rights it may have to receive any benefits, for itself or for Franchisee's subscribers in • 1] the City, that are determined to be given by resolution of the Attorney Generals investigation, whether through judicial decision, administrative action, settlement or voluntary agreement ("Resolution"). To the extent that the Resolution extends to other subscribers or municipalities in Florida, benefits as prescribed by the Attorney General, resulting out of its current investigation, for such other subscribers or municipalities shall automatically be made available to the City or Franchisee's subscribers in the City to the extent that the City or such subscribers have been subject to the same violations. 6. Franchisee shall cooperate in any franchise compliance inquiry, including but not limited to financial, customer service perfonnance, call center records and financial and technical audits as specified under the terms and conditions of the Franchise. AT&T Comcast agrees that the records of the Franchisee, which are required to be maintained and are subject to inspection by the City, pursuant to the Ordinance and Franchise, shall be subject to inspection regardless of whether such records are maintained by Franchisee or AT&T Comcast, or any subsidiary or affiliate. 7. Franchisee agrees that the City does not waive any right to require compliance with the Franchise by Franchisee, whether or not any noncompliance is the subject of this Acceptance and hereby assumes responsibility for any and all non-compliance under the current Franchise Agreement and/or the Ordinance, even if such noncompliance is alleged to have occurred prior to the closing of the merger of AT&T Broadband and Comcast Corporation. S. Franchisee shall deliver a letter to the City with respect to certain franchise matters. 9. This Exhibit A may be signed in counterparts. • FURTHER AFFIANT SAYETH NAUGHT. MEDIAONE OF GREATER FLORIDA, INC. r q- By: Name: - r ' c- Title: _ i D i' i r� /ie STATE OF FLORIDA ) ) ss: COUNTY OF ) BEFORE ME, the undersigned authority, personally appeared $ L/ who is known to me personally idellti ration) and upon being first duly sworn acknowledge that t= / 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 11, day of , 2002. cy. Notary Public My Co ission expires: hok �lr pG ANN L. LEFTIK MY COMMISSION # DD 061231 'OFStOt@ EXPIRE :January2(,,2004 1-8�O3NOTARY FL Notary Service & Borxling, Inc. 0 n AT&T COMCAST CORPORATION By: �Oy� AtAl-- N ame: ARIHUR R. BLOCK Title: Senior Vice Pr STATE: OF �r.�ti�a 1�c••ti ) ss: COUNTY OF BEFORE ME, the undersigned authority, personally appeared 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 anal State last aforesaid this day of 2002. • My Coi ission expires: -3 7; 0 NOSEAL DEBORAH L. MOGEL, Notaryry Public Ciry of Philadelphia, Phila. Caun M Commission Ex Yes March 28, 2W5 -2 _L • Resolution R-2002-205 Attachment 1 AT&T Broadband's Risk Assessment and Deposit Policy 0 Effective May 28, 2002 Starting May 28, 2002, AT&T Broadband will implement a risk assessment and deposit program. AT&T Broadband will conduct a risk assessment on all new or reconnecting customers. Customers requesting service will be asked for their name, address and Social Security Number. (If a customer is tuiwilling to provide his or her Social Security Number, we will attempt to match that person using only his or her name and address. AT&T Broadband's inability to locate applicant information resulting from the customer's unwillingness to provide a Social Security number may adversely affect the risk assessment). AT&T Broadband may utilize information available from credit reporting agencies to make the risk assessment. Based on our review, the customer may be required to provide a deposit to secure payment of his or her account. The deposit levels have been set initially at $50.00 and $100.00. All customers who are required to pay a deposit will be sent a letter, which will include information about our assessment and how to obtain additional information from any consumer reporting agencies utilized, as well as the Terms on which AT&T Broadband will hold, apply and refund deposits. The letter will be mailed within fifteen (1.5) business days following the deposit assessment. Detailed information about the Terms will be available to customers during the sales call upon request. AT&T Broadband shall not discriminate in the application of its Risk Assessment and Deposit Policy on the basis of race, color, sex, creed, religion, nationality, sexual orientation, or marital status. Any credit checks conducted by either AT&T Broadband or its third party credit bureau will be done in conformance with the requirements of all applicable state or federal laws. 'PERMS ON WHICH SECCTRITY DEPOSIT'S WILL BE HELD AND APPLIED BY AT&T BROADBAND If you have provided AT&T Broadband with a security deposit in connection with your subscription to cable television or cable internet services, AT&T Broadband will hold your deposit in an unsegregated interest -bearing account as a general liability of the company holding the local franchise to serve the area in which you reside. During each calendar year, the account will accrue interest at a rate determined during the last week of the immediately preceding October equal to the effective rate (the effective annual yield) for new issues of one year Treasury bills (or if there are no such new issues, a representative average of the bid and asked yields for Treasury obligations having approximately one year remaining until maturity), rounded to the nearest whole percentage. Interest on the deposit will be calculated monthly and credited to your service account. The interest rate for 2002 is 2%. The deposit will be held and interest will accrue until either (i) the service is disconnected or (ii) the balance charged to the service account has been paid in full, within forty (40) days of the due date, for each six (6) consecutive months. Upon either event, interest will be calculated and added to the amount on deposit. For active customers, the deposit and accrued interest will then be applied to the account in the seventh month. Any remaining credit will be applied to the account in the eighth month, unless customer requests a refund of the remaining deposit. For disconnecting customers, the deposit and accrued interest will be applied to the balance, if any, owing on the account after any equipment has been returned and any amount remaining on the deposit will be refunded. A check in the anio tint of the refund will be mailed within 4-6 weeks of the date of (i) or (ii) above. The interest rate on deposits that are held on January 1 of any calendar year will be adjusted to the new rate determined in accordance with the first paragraph above. If you have any questions regarding the status of your account or deposit, please call the Customer Service number shown on your monthly statement. • Resolution R-2002-205 Exhibit B • rl )U 1 1 I Uc U 0 ; JJF+ ... - . L.1 u. I--....— . , _. _. -—- I_ . • Florid Market July 10, 2002 The Honorable Joseph Schreiber Mayor -- City of Tamarac 7525 N.W. 8861 Avenue Tamarac, FL 33321 Deaa- Mayor Schreiber: AT&T Broadband 2501 S.W. iaStn Avenue Suite 200 Miramar. Florida 33027 As you are aware, MediaOne of Greater Florida, Inc., marketing services as AT&T Broadband is currently working to extend cable service to two addresses in the City. The states of both is set forth below. 1- ;C3uilding Dept_ at 8191 NW 88_Ave.—We have attempted to complete the installation ''out were prevented from entering the premises by the property management company of the Plaza, Kamco-Gershenson. Approximately two weeks ago, our staff faxed a copy of the construction diagram and a letter stating that we would be responsible for any damages that might occur, To date, we have not heard back f►om the company and 0 we have made a follow up telephone call about the issue. (We contacted Sandra at ltamco-Gershenson.) Once we receive permission from the company, the installation will take about seven days to complete- 2- Satellite. _City Hall at 4267 W. Commercial Blvd. — This location is also in a plaza. Again, we contacted the property owners. In this situation, we were told that the owners . required a letter from the City Of Tamarac requesting that the service be provided to the satellite location,.., We contacted Levent Sucuoglu of the City and he agreed to draft such a letter and. send it to the property- owners. He then told our staff he would let us know when he had obtained permission for our extension. To date, we w have not had this confirmation. When we receive permission from the company, the installation will take about seven days to complete.. Sincerely, Resolution R-2002-205 Exhibit C • • • AT&T Broadband Florida Market 2501 S.W. 145th Avenue 5illite 200 Miramar, Florida 33027 July 12, 2002 Mr. Matt Leibowitz, Esq. Leibowitz & Associates, PA. Suntrust International Center One Southeast Third Avenue, Suite 1450 Miami, FL 33131 RE: Merger between AT&T Broadband and Comcast Corporation Form 394 Application Dear Mr. Leibowitz: As you know, it is our position that under federal law, local franchising authorities may not insist that cable franchise transfer applicants pay consulting or legal fees over and above the 5% franchise fee. See 47 U.S.C. § 542 and Charter Communications v. County of Santa Cruz, No. C 99-01874 WHA (N.D. Cal. March 7, 2001), which directly addresses this limitation. We understand that you have a different position with respect to this issue due to the provisions in the franchises and/or ordinances of some of your municipal clients. However, without either your clients or our company waiving our respective positions or rights on this issue in other proceedings or matters outside of this Side Letter Agreement, and in an effort to assist the City of Tamarac Florida (the "City") that you represent in this process to finalize its review of the change of control of TCI TKR of South Florida, Inc. the franchisee for the City (the "Franchisee"), from AT&T Corp. to AT&T Comcast Corporation (the "Change of Control"), we agree as follows: 1) AT&T Broadband ("AT&TB") or the Franchisee will reimburse the City for its reasonable, out of pocket legal services incurred in reviewing and approving the Change of Control process, up to a maximum of $12,000.00. The City or Leibowitz & Associates shall provide copies of itemized invoices to the attention of Tom Carlock for information purposes only. AT&TB acknowledges the legal relationship existing between the City and Leibowitz & Associates, and as such, AT&TB shall not review the invoices for purposes of billing practices. AT&TB shall limit any questions regarding such invoices to Leibowitz & Associates and shall agree to keep the invoices and any analysis confidential to the extent allowed by law. Under no circumstances shall AT&TB communicate with the City regarding the invoices. AT&TB or Franchisee shall pay the City of Tamarac no later than thirty (30) days after receiving such invoices. 2) This payment is conditioned on our receipt of a final approval of the Change of Control from the City on or prior to July 9, 2002, in a form of resolution or ordinance substantially similar in substance and form to the Resolution and Agreement attached hereto or, if there is a substantial change in form or content to the Resolution and y Recycled Paper Agreement, it shall be in such a form that is acceptable to both AT&T and Comcast. If the City denies the Change of Control, or approves a form of resolution/ordinance, which is not acceptable to AT&T and Comcast, the payment to the City shall not be made. 3) This payment is further conditioned upon the agreement of Leibowitz & Associates to keep the payment, including this letter, confidential to the extent allowed by law; provided, however, that generic discussions concerning cost recovery that do not disclose the amounts of such reimbursement shall not be deemed violations of this confidentiality agreement. Communications regarding the payment made between the City and Leibowitz & Associates shall not constitute a violation of the terms of this agreement. 4) For the purposes of this Side Letter Agreement, such payments shall not constitute nor be considered an offset against or a credit against payment of franchise fees or any other amounts due from the Franchisee to the City. Please sign below that you acknowledge and agree to the conditions of this payment as set forth herein. If you have any questions, please call me at 954-534-7495. Sincerely, Ellen Filipiak Senior Vice President Attachments I, Matthew L. Leibowitz, authorized representative of Leibowitz & Associates do hereby acknowledge and agree to the conditions set forth herein. Signed:���� Date: -7 - 12 - 01- - - Signed this - `--of , 2002 on behalf of the City of Tamarac Name Jeffrev L. Miller Title City Man�Laer Signe -�� • Resolution R-2002-205 Exhibit D • • • EXHIBIT D PERFORMANCE GUARANTY AGREEMENT CITY OF T'AMARAC, a municipal corporation of the State of Florida, (hereinafter "City"), and MEDIAONF OF DELAWARE, INC., a Delaware corporation (hereinafter, "Guarantor") and wholly owned by Mediaone Group, Inc., on behalf of itself and Franchisee. WHEREAS, Mediaone of Greater Florida, Inc., d/b/a AT&T Broadband is the Franchisee under a .Franchise Agreement granted pursuant to Ordinance No. 0-2000-10 and the documents thereunder (collectively the "Franchise"); and WHEREAS, at its meeting of July 10, 2002, the City Commission approved the Change in Control of the Franchisee in adopting Resolution No. R-2002-205 ("Change in Control"); and WHEREAS, the Consent and Unconditional Acceptance of Change i.n. Control of Franchisee approved by Resolution No. R-2002-205 requires Franchisee to furnish a Guaranty, with an acceptable guarantor securing performance of Franchisee's obligations under the City of Tamarac, Florida Cable Television Ordinance No. 5.5-21 through 5.5-55 ("Ordinance"), Franchise Agreement and any and all agreements related thereto; and WHEREAS, Guarantor has agreed to deliver this Guaranty in conjunction with the City's consent to the Change in Control. NOW, THEREFORE, in consideration of the above recitals, the covenants, and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby ac.know.ledged, the Guarantor hereby agrees as follows: I . The Guarantor, on behalf of itself and Franchisee, (a) guarantees unconditionally to the City the due and punctual performance by Franchisee of each and every term, promise, 0 covenant, condition, provision and obligation contained in the Franchise Agreement, the • Resolution approving the Change in Control, the Unconditional Acceptance, the Ordinance and any and all related agreements and resolutions, except to the extent that any term, promise, covenant, condition, provision or obligation is unenforceable under applicable law, and (b) agrees to cause Franchisee to comply with all obligations of the "Grantee" (as defined in the documents referenced herein) to be performed as provided in the Franchise Agreement and Ordinance, except to the extent that any term, promise, covenant, condition, provision or obligation is unenforceable under applicable law. 2. The guarantees set forth in paragraph 1 above shall be effective contemporaneously with the Change in Control of the .Franchisee and shall remain in effect until the first to occur of (a) the termination of the Franchise; or (b) the termination, substitution, or cancellation of this Guaranty upon the City's prior written approval of a substitute guarantor, which approval shall not be unreasonably withheld. 3. Except as set forth in paragraph 2 above, no termination, amendment, waiver, or modification of this Guaranty or any of its terms or provisions shall be effective unless it is set forth in a written instrument signed by the Guarantor and the City. 4. Guarantor covenants and agrees that Guarantor may be joined in any action by the Franchisee or the City and that recovery may be had against Guarantor in such action without the City first bringing an action in court against. Franchisee. Guarantor also agrees that, in any jurisdiction, it will be conclusively bound by the judgment in any such action by City against Franchisee (wherever brought) as if Guarantor were a party to such action, even though Guarantor is not joined as a party in such action. This Guaranty may be enforced against Guarantor pursuant to this Section 4 only upon a default by Franchisee; provided that Guarantor 0 11 is given prior notice of such breach or default and an opportunity to cure such breach or default in accordance with the Franchise as if Guarantor was the Franchisee thereunder. S. This Guaranty shall be deemed to have been made in the State of Florida. Guarantor consents to the jurisdiction of the courts of the State of Florida or to the United States District Court, Southern District, for the State of Florida. The rights and liabilities of City and Guarantor shall be determined in accordance with the laws of the State of Florida. 6. No delay can the part of the City in exercising any power or right hereunder shall operate as a waiver thereof. The powers and rights granted to City hereunder may only be waived upon the prior written consent of City, authorized by appropriate municipal action taken at a regular public meeting of the City Commission of City. 7. if any section, subsection, sentence, clause, phrase, or other portion of this Guaranty is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent _jurisdiction, such portion shall be deemed a separate, distinct, and independent portion, and such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect. 0 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] • • • IN WITNESS WIIEREOF, the Guarantor on behalf of itself has caused this Guaranty to be executed under seal by its duly authorized representative of the date first above written. o °00+�O/yg „te AL0 �p �r aa�memp� STATE. OF COLORADO ) ) ss: COUNTY OF ARAPAIIOE ) MEDIAONE OF DELAWARE, INC. (Guarantor) By: Name: Title: EEORE M the undersigned authority, personally appeared 11 L L ti. C who is known to me personally (or provided proof of identification) and upon b ing first duly sworn acknowledged that he / she executed the foregoing document freely and voluntarily and for the purpose therein expressed. ITNESS my hand and official seal in the County and State last aforesaid this 2 day of c^ , 2002. My Commission Expires: — - ��>. Z' ; / /6" Notary Public • WITNESS: • 0 CITY OF TAMARAC 13Y: M By: City M6iager ATTEST: City Clerk APPROV�I D S TO FO By: Ci. Attorney i � 6 1,-L