Verizon Franchise Agreement
Verizon Franchise Agreement
Franchise Agreement to provide cable services between City of Tampa, Florida and Verizon Florida, Inc.
Table of Contents
SECTION 1 -- DEFINITIONS
SECTION 2 -- GRANT OF AUTHORITY; LIMITS AND RESERVATIONS
SECTION 3 -- PROVISION OF CABLE SERVICE
SECTION 4 -- SYSTEM OPERATION
SECTION 5 -- SYSTEM FACILITIES
SECTION 6 -- PEG SERVICES
SECTION 7 -- COMMUNICATIONS SERVICES TAX
SECTION 8 -- CUSTOMER SERVICE
SECTION 9 -- REPORTS AND RECORDS
SECTION 10-- INSURANCE AND INDEMNIFICATION
SECTION 11-- TRANSFER OF FRANCHISE
SECTION 12-- RENEWAL OF FRANCHISE
SECTION 13 -- ENFORCEMENT AND TERMINATION OF FRANCHISE
SECTION 14-- SECURITY FUND/ LETTER OF CREDIT
SECTION 15-- LIQUIDATED DAMAGES
SECTION 16-- MISCELLANEOUS PROVISIONS
Exhibit A: Public Buildings to be Provided Cable Service
Exhibit B: Access Channels
Exhibit C: Customer Service Standards
Exhibit D: Company Structure
Exhibit E: Form of Letter of Credit
Exhibit F: Form of Guaranty
Exhibit G: Origination Points
THIS CABLE FRANCHISE AGREEMENT (the "Franchise" or "Agreement") is entered into as of the "Effective Date" (May 12, 2006) as hereinafter defined by and between the City of Tampa, Florida, a municipal corporation established under the applicable laws of the State of Florida (the Local Franchising Authority or "LFA") and Verizon Florida Inc., a corporation duly organized under the applicable laws of the State of Florida (the "Franchisee").
WHEREAS, pursuant to the Cable Communication Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, each of which amends the Communications Act (as hereinafter defined), the Congress established procedures and standards in order to, among other purposes, encourage the growth and development of cable systems, assure that cable systems are responsive to the needs and interests of the local community, assure that Cable Communication provide and are encouraged to provide the widest possible diversity of services to the public, assure that access to cable service is not denied to any Person, and restore the right of local franchising authorities to regulate cable television rates under certain circumstances and to engage in other regulatory activities; and
WHEREAS, the LFA exercises control over all public rights-of-way (as hereinafter defined) located within the limits of the LFA; and
WHEREAS, Franchisee has filed an application for a cable franchise which has been accepted by LFA; and
WHEREAS, the Franchisee has requested permission from the LFA to construct, maintain, upgrade and operate the System (as hereinafter defined) over, under and along the public rights-of-way for the use of the LFA's inhabitants; and
WHEREAS, the public rights-of-way to be used by the Franchisee are valuable public properties acquired and maintained by the LFA at great expense to the LFA's taxpayers, and the rights to use the public rights-of-way is a valuable property right without which the Franchisee would be required to invest substantial capital and property acquisition costs; and
WHEREAS, the LFA desires to insure that the public rights-of-way used by the Franchisee are promptly restored and maintained in a safe and secure condition to protect the health, safety and welfare of the LFA's citizens; and
WHEREAS, the LFA intends to exercise the full scope of its municipal powers, including both its police power and contracting authority, to promote the public interest and to protect the health, safety and welfare of the citizens of Tampa; and
WHEREAS, the LFA has reviewed the Franchisee's proposal for a nonexclusive franchise to operate and maintain a Cable System and to provide Cable Service (as hereinafter defined) in the Franchise Area (as hereinafter defined) as designated in this Franchise; and
WHEREAS, the LFA is a "franchising authority" in accordance with Title VI of the Communications Act (see 47 U.S.C. §522(10)) and is authorized to grant one or more nonexclusive cable franchises pursuant to Florida Statutes Section 166.046; and
WHEREAS, Franchisee is in the process of installing a Fiber to the Premises Telecommunications Network ("FTTP Network") in the Franchise Area for the transmission of Non-Cable Services; and
WHEREAS, the FTTP Network will occupy the Public Rights-of-Way within the LFA, and Franchisee desires to use the FTTP Network once installed to provide Cable Services in the Franchise Area; and
WHEREAS, the LFA has identified the future cable-related needs and interests of the LFA and its citizens, has considered the financial, technical and legal qualifications of Franchisee, has determined that Franchisee's plans for its Cable System are adequate, and has considered, at a duly noticed public hearing and in accordance with Section 166.046, Florida Statutes: (a) the economic impact upon private property within the Franchise Area; (b) the public need for such Franchise, if any; (c) the capacity of Public Rights-of-Way to accommodate the Cable System; (d) the present and future use of the Public Rights-of-Way to be used by the Cable System; (e) the potential disruption to existing users of the Public Rights-of-Way to be used by the Cable System and the resultant inconvenience which may occur to the public; (f) the financial ability of the Franchisee to perform; (g) other societal interests as are generally considered in cable television franchising; and (h) such other additional matters, both procedural and substantive, as the LFA may, in its sole discretion, determine to be relevant; and
WHEREAS, the LFA has found Franchisee to be financially, technically and legally qualified to operate the Cable System; and
WHEREAS, the LFA has determined that in accordance with the applicable provisions of the Cable Ordinance (as hereinafter defined), the grant of a nonexclusive franchise to Franchisee is consistent with the public interest; and
WHEREAS, the LFA and Franchisee have reached agreement on the terms and conditions set forth herein and the parties have agreed to be bound by those terms and conditions.
NOW, THEREFORE, in consideration of the LFA's grant of this Franchise to Franchisee pursuant to the terms and conditions set forth herein, the promises and undertakings herein, and other good and valuable consideration, the receipt and the adequacy of which are hereby acknowledged.
THE PARTIES HERETO AGREE AS FOLLOWS:
1. DEFINITIONS. Except as otherwise provided herein, the definitions and word usages set forth in the Cable Ordinance as of the Effective Date of this Agreement are incorporated herein and shall apply in this Agreement. In addition, the following definitions shall apply:
1.1 Access Channel: A non-commercial video Channel, which Franchisee shall make available to the LFA without charge for public, educational, or governmental use for the transmission of Video Programming as directed by the LFA.
1.2 Additional Service Area: Any area in addition to the Service Area in which Franchisee is required to make Cable Services available by operation of Section 3.1.3 of this Franchise.
1.3 Affiliate: Each Person not an Affiliated Parent, who falls into one or more of the following categories: (i) each Person in which the Franchisee has, directly or indirectly, a Controlling Interest; (ii) each Person, directly or indirectly, controlled by, or under common Control of, the Franchisee; (iii) each Person directly or indirectly controlled by, or under common Control of an Affiliated Parent, provided that "Affiliate" shall in no event mean the LFA, the entity, if any, administering some or all of the Access Channels, any limited partner holding an interest of less than twenty-five percent (25%) of the Franchisee, or any creditor of the Franchisee solely by virtue of its status as a creditor and which is not otherwise an Affiliate or Affiliated Parent by reason of owning a Controlling Interest in, being owned by, or being under common ownership, common management, or common Control with, the Franchisee respectively.
1.4 Affiliated Parent: Each Person, as of the Effective Date, having directly or indirectly a Controlling Interest in the Franchisee or any successor to such Person having such a Controlling Interest.
1.5 Basic Service: Any service tier, which includes the retransmission of local television broadcast signals and the Access Channels as required by this Franchise.
1.6 Cable Ordinance: Tampa Cable Communication Code, Ord. No. 7864-A, as of the Effective Date.
1.7 Cable Service or Cable Services: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. §522(6).
1.8 Cable System or System: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. §522(7), meaning Franchisee's facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within the Franchise Area. The Cable System shall not include Telecommunications Facilities or the tangible network facilities of a common carrier subject in whole or in part to Title II of the Communications Act or of an Information Services provider.
1.9 Channel: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. §522(4).
1.10 Communications Act: The Communications Act of 1934, as amended.
1.11 Control or Controlling Interest: Actual working control including, without limitation, working control through ownership, management, or debt instruments, of the System, the Agreement or the Franchisee. Control may be held simultaneously by more than one Person or group of Persons. Any person holding a twenty-five percent (25%) ownership interest shall be presumed to have actual working control.
1.12 Effective Date: The date upon which this Agreement has been executed by the Franchisee, approved by the City Council of the LFA and executed by the Mayor of the LFA.
1.13 Event of Default: A material violation of the Franchise that is not contested or cured in accordance with Section 13.2.
1.14 FCC: The United States Federal Communications Commission or successor governmental entity thereto.
1.15 FTTP Network: A Fiber to the Premises Telecommunications Network.
1.16 Force Majeure: An event or events reasonably beyond the ability of Franchisee to control. This includes, but is not limited to, acts of God, incidences of terrorism, war or riots, labor strikes or civil disturbances, floods, earthquakes, fire, explosions, epidemics, hurricanes, governmental actions and restrictions, work delays caused by waiting for utility providers to service or monitor utility poles to which Franchisee's FTTP Network is attached, and unavailability of materials and/or qualified labor to perform the work necessary.
1.17 Franchise Area: The corporate (territorial) limits of the LFA existing as of the Effective Date and such additional areas as may be included in the corporate (territorial) limits of the LFA during the term of this Franchise.
1.18 Franchisee: Verizon Florida Inc., and its lawful and permitted successors, assigns and transferees.
1.19 Information Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. §153(20).
1.20 Local Franchise Authority (LFA): The City of Tampa, Florida or the lawful successor, transferee, or assignee thereof.
1.21 Non-Cable Services: Any service that does not constitute Cable Services
1.22 Normal Business Hours: Those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours.
1.23 Normal Operating Conditions: Those service conditions which are within the control of the Franchisee. Those conditions which are not within the control of the Franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Franchisee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System.
1.24 PEG: Public, educational, and governmental.
1.25 Person: An individual, partnership, association, joint stock company, trust, corporation, or governmental entity.
1.26 Public Rights-of-Way: The roads, streets, alleys, highways, waterways, bridges, sidewalks, public utility easements and other ways or places of whatever nature, including the space above, on, at or below such rights of way, that are owned by the LFA, publicly held by the LFA, dedicated to the LFA, or otherwise controlled by the LFA, for public use and presently opened or to be opened for public use, including vehicular and pedestrian movement.
1.27Service Area: The corporate (territorial) limits of the LFA existing as of the Effective Date.
1.28 Service Date: The Service Date is the date that the Franchisee first provides Cable Service on a commercial basis directly to multiple subscribers in the Franchise Area.
1.29 Service Interruption: The loss of picture or sound on one or more cable Channels.
1.30 Subscriber: A Person who lawfully receives Cable Service of the Cable System with Franchisee's express permission.
1.31 Telecommunications Facilities: Franchisee's Telecommunications Services and Information Services facilities and its FTTP Network facilities.
1.32 Telecommunication Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. §153(46).
1.33 Title II: Title II of the Communications Act.
1.34 Title VI: Title VI of the Communications Act.
1.35 Transfer of the Franchise:
1.35.1 Any transaction in which:
188.8.131.52 an ownership or other interest in Franchisee is transferred, directly or indirectly, from one Person or group of Persons to another Person or group of Persons, or the Control of Franchisee is transferred; or
184.108.40.206 the rights held by Franchisee under the Franchise are transferred or assigned to another Person or group of Persons.
1.35.2 Video Programming: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. §522(20).
GRANT OF AUTHORITY; LIMITS AND RESERVATIONS.
2.1 Grant of Authority: Subject to the terms and conditions of this Agreement and the Cable Ordinance, the LFA hereby grants the Franchisee the right to own, construct, operate and maintain a Cable System along the Public Rights-of-Way within the Franchise Area, in order to provide Cable Service. Nothing herein affects the LFA's privilege or power of eminent domain.
2.2 LFA Does Not Regulate Telecommunications: The LFA's regulatory authority under Title VI of the Communications Act and this Agreement is not applicable to the construction, installation, maintenance or operation of the Franchisee's FTTP Network to the extent the FTTP Network is constructed, installed, maintained or operated for the purpose of upgrading and/or extending Verizon's existing Telecommunications Facilities for the provision of Non-Cable Services.
2.3 Term: This Agreement will be executed by the Franchisee and delivered to the LFA for review and approval by the City Council of the LFA. Upon approval by the City Council of the LFA and execution by the Mayor, this Agreement will become effective (the "Effective Date"). The term of this Franchise shall be fifteen (15) years from the Effective Date unless the Franchise is earlier revoked as provided herein.
2.4 Grant Not Exclusive: The Franchise and the rights it grants to use and occupy the Public Rights-of-Way to provide Cable Services shall not be exclusive, and the LFA reserves the right to grant other franchises for similar uses or for other uses of the Public Rights of- Way, or any portions thereof, to any Person, or to make any such use itself at any time during the term of this Franchise. Any such rights which are subsequently granted shall not adversely impact the authority as granted under this Franchise and shall not interfere with existing facilities of the Cable System or Franchisee's FTTP Network provided, however, that the forgoing is not intended to impair (i) the LFA's exercise of its police powers, or (ii) rights it may have to compel relocation upon order of the LFA, and for which Franchisee may be entitled to appropriate compensation , all of which in accordance with, and to the extent provided by, applicable law.
2.5 Franchise Subject to Federal Law: Notwithstanding any provision to the contrary herein, this Franchise is subject to and shall be governed by all applicable provisions of federal law as it may be amended, including, but not limited to, the Communications Act; provided, however, that if a change to federal or state law permits Franchisee to opt out of or terminate this Franchise, Franchisee agrees to honor this Franchise subject to its terms.
2.6 No Waiver:
2.6.1 The failure of the LFA on one or more occasions to exercise a right or to require compliance or performance under this Franchise, the Cable Ordinance or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by the LFA, nor to excuse Franchisee from complying or performing, unless such right or such compliance or performance has been specifically waived in writing.
2.6.2 The failure of the Franchisee on one or more occasions to exercise a right under this Franchise Agreement or applicable law, or to require performance under this Franchise Agreement, shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor shall it excuse the LFA from performance, unless such right or performance has been specifically waived in writing.
2.7 Construction of Agreement:
2.7.1 The provisions of this Franchise Agreement shall be liberally construed to effectuate their objectives. In the event of a conflict between the Cable Ordinance and this Agreement, this Agreement shall prevail.
2.7.2 This Agreement shall be construed and interpreted according to the ordinary meaning of the words used so as fairly to accomplish the purposes and intentions of all parties to this Agreement. No party to this Agreement shall be considered the draftsman, and the drafts of this Agreement shall not be used to interpret the provisions of this Franchise. The parties acknowledge and agree that this Agreement has been reviewed, negotiated, and accepted by both parties.
PROVISION OF CABLE SERVICE.
3.1 Service Area:
3.1.1 Service Area: Subject to the other terms of this Agreement, Franchisee will make Cable Service available to all residential areas and to all business locations (for which the FTTP Network is not subject to unbundling obligations) within the Service Area within five (5) years of the Effective Date, except: (A) for periods of Force Majeure; (B) for periods of delay caused by the LFA; (C) for periods of delay caused by Franchisee's unanticipated inability to obtain timely locates; (D) for periods of delay resulting from Franchisee's inability to obtain authority to access public rights-of-way in the Service Area; (E) in areas where third parties claim that developments or buildings are subject to exclusive arrangements with other providers; (F) in developments or buildings that Franchisee cannot access under reasonable terms and conditions after good faith negotiation, as determined by Franchisee; (G) in developments or buildings that Franchisee reasonably determines that it is unable to provide Cable Service (i) for technical reasons or (ii) due to the necessity of nonstandard facilities which are not available on a commercially reasonable basis provided that the LFA concurs that the non-standard facilities are not available on a commercially reasonable basis; and (H) in areas where the occupied residential household density does not meet the density requirement set forth in subsection 3.1.2
3.1.2 Density Requirement: Franchisee shall make Cable Service available to residential dwelling units in all areas of the Service Area in which the average density is equal to or greater than 20 occupied residential dwelling units per mile as measured in strand footage from the nearest technically feasible point on the active FTTP Network trunk or feeder line. Should new construction of residential units within the Service Area meet the density requirement after the time stated for providing Cable Service as set forth in subsection 3.1.1, then Franchisee shall provide Cable Service to such locations within an area which then meets the density requirement within six (6) months of receiving notice that the density requirement has been met.
3.1.3 Additional Service Areas: Subject to Article 3, to the extent that the Franchise Area is expanded beyond the Service Area whether by annexation, special act or any other lawful means, such area shall be considered an Additional Service Area and Franchisee shall make Cable Service available in such Additional Service Area provided that FTTP facilities have been placed in the rights of way of the annexed area and either the video service office serving the annexed area is equipped with facilities (e.g. Pre-amp EDFA, distribution EDFA, Big band Equipment, MUX, etc.) to provide Cable Service to areas other than the annexed area, in which case Verizon shall make Cable Service available within 120 days of Verizon receiving written notice from LFA that the annexation has occurred; or if Verizon is providing Cable Service within the annexed area at the time of annexation, within 30 days of Verizon receiving written notice from LFA that the annexation has occurred. LFA shall also endeavor to provide Verizon written notice of any LFA proceeding before LFA City Council in which City Council will vote on approving such annexation. Any such Additional Service Area in which Franchisee is required to make Cable Services available by operation of this Section 3.1.3 shall be deemed to be portions of the Service Area for purposes of this Agreement
3.2 Availability of Cable Service: Franchisee shall make Cable Service available within the Service Area in conformance with Section 3.1 and Franchisee shall not discriminate between or among any individuals in the availability of Cable Service. In the areas in which Franchisee shall provide Cable Service, Franchisee shall be required to connect, at Franchisee's expense, all residential dwelling units and business units that are not subject to unbundling obligations that are within one hundred twenty five (125) feet of trunk or feeder lines not otherwise already served by Franchisee's FTTP Network. Franchisee shall be allowed to recover, from a Subscriber that requests such connection, actual costs incurred for residential dwelling unit connections that exceed 125 feet and actual costs incurred to connect any nonresidential dwelling unit Subscriber.
3.3 Cable Service to Public Buildings: Upon request of the City and subject to Section 3.1, Franchisee shall provide, without charge within the Service Area, one service outlet, together with all associated equipment necessary for activation, and Basic Service to each fire station, public school, police station, public library, and such other buildings used for governmental purposes, located in the Service Area and listed on Exhibit A at such time as Franchisee provides Cable Service in the general area in which the building is located. In the event Franchisee converts to an all digital network, Franchisee shall provide, free of charge equipment, to the extent necessary, which will permit LFA's continued reception of service as set forth in this Section 3.3. However, if it is necessary to extend Franchisee's trunk or feeder lines more than one hundred twenty five (125) feet solely to provide Cable Service to any such building listed in Exhibit A, then Franchisee must provide the service only if the LFA or governmental entity utilizing such building pays Franchisee's direct costs for such extension in excess of one hundred twenty five (125) feet. Furthermore, Franchisee shall be permitted to recover, from the entity requesting Cable Service, the direct cost of installing, when requested to do so, more than one outlet, or concealed inside wiring, or a service outlet requiring more than one hundred twenty five (125) feet of drop cable; provided, however, that Franchisee shall not charge for the provision of Basic Service to the additional service outlets once installed. Exhibit A may be amended from time to time by mutual agreement of the parties. LFA will be permitted to add five (5) new public buildings per year to Ex. B by providing Franchisee written notice of the address of the building and governmental uses thereof. This right is non-cumulative. Such additional buildings shall be subject to the terms of this Article 3. For purposes of this Section 3.3, "year" shall mean the LFA's fiscal year (October 1-September 30).
The parties recognize that Franchisee's FTTP Network is being constructed and will be operated and maintained as an upgrade to and/or extension of its existing Telecommunications Facilities. The parties agree that the LFA cannot assert authority pursuant to this Agreement over Franchisee's FTTP Network, except to the extent such facilities, if any, are used exclusively to provide Cable Service and are located in the Public Rights-of-Way.
5.1 System Characteristics:
5.1.1 Franchisee's Cable System shall, at all times during the Franchise Term, meet or exceed the following requirements:
5.1.2 The System shall be designed with an initial analog and digital carrier passband between 50 and 860 MHz.
5.1.3 The System shall be designed and constructed to be an active two way plant utilizing the return bandwidth to permit such services as impulse pay-per-view and other interactive services. Test and Performance monitoring under Cable Ordinance Section 7- 110 shall be upon reasonable request of LFA and only to the extent permitted by then current FCC regulations.
5.2 Interconnection: The Franchisee shall design its Cable System so that it may be interconnected with other cable systems in the Franchise Area. Interconnection of systems may be made by direct cable connection, microwave link, satellite, or other appropriate methods.
5.3 Emergency Alert System:
5.3.1 Franchisee shall comply with the Emergency Alert System ("EAS") requirements of the FCC in order that emergency messages may be distributed over the System.
5.3.2 To the extent the EAS equipment is under the control of the LFA, the LFA shall permit only appropriately trained and authorized Persons to operate the EAS equipment and shall take reasonable precautions to prevent any use of the Cable System in any manner that results in inappropriate use thereof, or any loss or damage to the Cable System.
6.1 PEG Set Aside:
6.1.1 Subject to the Tampa Cable Communication Ordinance, in order to ensure universal availability of public, educational and government programming, Franchisee shall provide, and shall not exceed except as otherwise provided in this Franchise, six (6) Access Channels for LFA use as set forth in Exhibit B attached hereto and made a part hereof. The LFA reserves the right to designate the use of the Access Channels among government, educational and public access. Franchisee has the right (a) to assign the location of the Access Channels on its channel lineup (i.e., the channel numbers) at its sole discretion, provided that the Access Channels shall be provided as part of Basic Service and (b) to transmit such programming outside the Service Area.
6.1.2 Franchisee will connect the Cable System to the origination points of the Access Channels identified in the sub-section 6.1.1 within 90 days of the Effective Date or by August 31, 2006, whichever is later. If any origination point on Exhibit G is relocated (i) within the Service Area, then the LFA shall provide the Franchisee ninety (90) days prior written notification of such relocation and the Franchisee shall either seek interconnection with other local cable operator(s) or direct connect to the new origination point at no additional expense to the LFA; or (ii) outside of the Service Area but within Hillsborough County, then the LFA shall provide the Franchisee ninety (90) days prior written notification of such relocation and the Franchisee shall either seek interconnection with other local cable operator(s) or direct connect to the new origination point and LFA shall pay Franchisee for all costs incurred due to such relocation. Timeframes for completing interconnection or direct connection due to relocation of origination points shall be discussed between the LFA and Franchisee. The LFA shall pay Franchisee for all costs incurred by Franchisee for completing interconnection or direct connection due to relocation of origination points. LFA shall be permitted to relocate 1 origination point listed on Exhibit G under the provision set forth above in 6.1.2(i) during the term of this Agreement without the LFA having to pays the cost of such relocation.
6.1.3 Each Access Channel shall be delivered with transmission quality the same as or better than the transmission quality of any other Channel on Basic Cable Service, subject to the quality of the same received from the Access Channel origination point or from the other cable operator if such Access Channel is received through interconnection.
6.2 PEG and I-NET Grant:
6.2.1 Franchisee shall provide the following PEG and I-NET support:
6.2.2 Franchisee shall provide an initial PEG and I-NET grant (the "Initial PEG and I-Net Grant") to the LFA of One Million Dollars and No Cents ($1,000,000.00) no later than twenty (20) business days after the Effective Date of this Agreement. Franchisee shall provide an additional PEG and INET grant (the "Additional PEG and INET Grant") in the form of a quarterly payment of sixty-five cents ($ 0.65) per Subscriber per month as billed and collected. The Franchisee may pass this grant cost to the Subscribers as a separate line item on the Subscriber bill. If so, the line item on the bill shall state the following: "PEG and INET support."
6.2.3 The Additional PEG and I-Net Grant, along with a brief summary of the information upon which it is based, shall be paid to the LFA via electronic transfer or other method mutually agreed to by the parties within sixty (60) days after the end of each calendar quarter during the Franchise Term.
6.2.4 The LFA shall provide reasonable verification, upon request of the Franchisee, of the amounts received, budgeted and expended related to PEG and INET financial support, identifying each payor and its amounts paid to the City. The obligations of this subsection 6.2.4 may be satisfied by providing a copy of the most recently LFA Council approved LFA budget related to PEG and INET expenditures.
6.2.5 Upon expiration of the Franchise, if Franchisee has not paid the City an amount of PEG and INET monetary support equivalent to that actually paid by Bright House as required by Bright House's cable franchise agreement with the City dated March 23, 2000, then Franchisee shall pay the City an amount equal to the difference between (1) the amount of PEG and INET support paid by Franchisee; and (2) the amount of PEG and INET support actually paid by Bright House as required by Bright House's cable franchise agreement with the City dated March 23, 2000. Franchisee may recover this amount by adding such cost to the amount billed as the PEG and INET support line item identified in sub-section 6.2.2 or as otherwise permitted by law.
6.3 Line Item: To the extent permitted by federal law, the Franchisee shall be allowed to recover the costs of the Initial PEG and I-Net Grant by adding such cost to the amount billed as the PEG and INET support line item identified in sub-section 6.2.2 above. Without limiting the foregoing, if allowed under state and federal laws, Franchisee may externalize, line item and/or otherwise pass through its PEG costs, including direct connection or interconnection costs, to Subscribers under the same identified line item.
6.4 Named Beneficiary: The LFA agrees to request any person responsible for the management of the Access Channels to include Franchisee as a named beneficiary of any indemnification and hold harmless agreement such person obtains from local producers of such programming.
6.5 Additional PEG Channels:
6.5.1 If Verizon converts to an all digital transmission method (as opposed to part analog and part digital), the Franchisee shall provide the LFA two (2) additional PEG Channels (the "Additional PEG Channels"). LFA may direct the Franchisee to activate each channel, by providing written notice of its decision to the Franchisee. Each of the two additional channels shall be made available upon reasonable demonstration that the PEG content to be carried on each additional channel cannot satisfactorily be carried on the existing PEG channels or that the intended purpose of the additional content would be constrained or otherwise adversely affected if not carried on its own PEG channel.
6.5.2 The Franchisee shall activate such Additional PEG Channel within one hundred eighty (180) days of the LFA's written notice, unless the LFA specifies a later date. Such Additional Channels shall originate at an existing origination point or, if a new origination point (s), LFA shall assume Verizon's reasonable cost of building to the new origination point(s) which shall be within LFA jurisdictional boundaries. The Additional PEG Channels shall be subject to the terms and conditions of this Franchise applicable to PEG channels.
6.6 Late Payment: Failure to make timely payments of undisputed amounts due under this Article 6 shall be subject to a late payment charge calculated at twelve percent (12%) per annum, compounded, for the unpaid amount.
COMMUNICATIONS SERVICES TAX.
Franchisee and City shall comply with the Communications Services Tax Simplification Law, Chapter 202, Florida Statutes, in its current form and as it may be amended. Should such law be amended or repealed, each party to this Agreement reserves all of its rights.
Franchisee shall comply with the Customer Service Standards set forth in Exhibit C which shall be binding unless amended by written consent of the parties.
REPORTS AND RECORDS.
9.1 Open Books and Records: Upon reasonable written notice to the Franchisee, the Franchisee shall provide the LFA access to (and the LFA shall have the right to inspect) Franchisee's books and records pertaining to Franchisee's provision of Cable Service in the Franchise Area at any time during Normal Business Hours and on a non-disruptive basis as are reasonably necessary to ensure compliance with the terms of this Franchise. Such notice shall specifically reference the subsection of the Franchise which is under review, so that Franchisee may organize the necessary books and records for appropriate access by the LFA. Franchisee shall not be required to maintain any books and records for Franchise compliance purposes longer than three (3) years, except that in the event of an ongoing investigation by the LFA of activity hereunder, which investigation is being diligently pursued and is not dilatory in nature, the Franchisee shall during the course of such investigation maintain such records in connection therewith as shall be designated by written notice from the LFA. LFA shall promptly provide written notice to Franchisee of the conclusion of any such investigation, whereupon Franchisee shall be permitted to dispose of such records. Notwithstanding anything to the contrary set forth herein, Franchisee shall not be required to disclose information the disclosure of which is prohibited by State or Federal law. Franchisee shall also not be obligated to provide information other than that related to the provision of Cable Services in the Franchise Area as is necessary to ensure compliance with the terms of this Franchise.
9.2 Public Records Law: Subject to Chapter 119, Fla. Stat., the LFA is required to protect the confidentiality of any confidential or proprietary information that is provided. To the extent not otherwise expressly prohibited by Chapter 119, Florida Statutes, the LFA agrees to treat any information disclosed by Franchisee as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof. Franchisee shall not be required to provide Subscriber information in violation of Section 631 of the Communications Act, 47 U.S.C. §551. If Franchisee believes that any of its books or records are confidential and /or subject to a public records exemption, Franchisee shall clearly mark the books and records accordingly and LFA shall not produce such books and records if requested to do so by a third party. LFA shall notify Franchisee of any public records request for information that includes such confidential or exempt information thereby giving Franchisee the opportunity to promptly commence a civil action to assert the public records exemption and/or otherwise protect the books and records from disclosure.
9.3 Compliance Report and Sessions: Compliance Report. At the request of the LFA, but not more frequently than every three (3) years, Franchisee, at its expense, shall submit to the LFA a report, in reasonable detail, addressing its compliance with the terms of this Agreement. The anniversary sessions set forth in Cable Ordinance Section 7-59(a) shall be at the LFA's discretion and subject to prior reasonable written notice to Franchisee of LFA's decision to hold such sessions.
9.4 Communications with Regulatory Agencies: Franchisee shall not apply for any waivers, exceptions or declaratory rulings relating to Cable Service provided in the Franchise Area from the Federal Communications Commission or any other federal or state regulatory agency without reasonably contemporaneous notice to the LFA sufficient to permit LFA to prepare for and participate in such proceeding if permitted.
9.5 Communications Services Tax Audit: Notwithstanding any other provision of this Franchise, the LFA may perform a Communications Services Tax audit only in accordance with 202.37, Florida Statutes.
9.6 Records Required: Franchisee shall at all times maintain:
9.6.1 Records of all written complaints for a period of three years after receipt by Franchisee. The term "complaint" as used herein refers to complaints about any aspect of the Cable System or Franchisee's cable operations, including, without limitation, complaints about employee courtesy. Complaints recorded will not be limited to complaints requiring an employee service call;
9.6.2 Records of outages for a period of three years after occurrence, indicating date, duration, area, and the number of Subscribers affected, type of outage, and cause;
9.6.3 Records of service calls for repair and maintenance for a period of three years after resolution by Franchisee, indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was resolved;
9.6.4 Records of installation/reconnection and requests for service extension for a period of three years after the request was fulfilled by Franchisee, indicating the date of request, date of acknowledgment, and the date and time service was extended; and
9.6.5 A public file showing the area of coverage for the provisioning of Cable Services and estimated timetable to commence providing Cable Service.
INSURANCE AND INDEMNIFICATION.
10.1.1 Franchisee shall maintain in full force and effect, at its own cost and expense, during the term of this Franchise, the following insurance coverage:
10.1.1.1 Commercial General Liability Insurance in the amount of one million dollars ($1,000,000) combined single limit for property damage and bodily injury. Such insurance shall cover the construction, operation and maintenance of the Cable System, and the conduct of Franchisee's Cable Service business in the LFA.
10.1.1.2 Automobile Liability Insurance in the amount of one million dollars ($1,000,000) combined single limit for bodily injury and property damage coverage.
10.1.1.3 Workers' Compensation Insurance meeting all legal requirements of the State of Florida.
10.1.1.4 Employers' Liability Insurance in the following amounts: (A) Bodily Injury by Accident: $100,000; and (B) Bodily Injury by Disease: $100,000 employee limit; $500,000 policy limit.
10.1.1.5 Umbrella Liability Insurance shall be maintained above the primary commercial general liability, automobile liability, and employers' liability policies required herein. The limit shall not be less than $5,000,000.00 each occurrence and annual aggregate.
10.1.2 The LFA shall be designated as an additional insured[s] under each of the insurance policies required in this subsection except Workers' Compensation, Employer's Liability Insurance and Umbrella Liability Insurance.
10.1.3 Each of the required insurance policies shall be non-cancelable except upon thirty (30) days prior written notice to the LFA. Franchisee shall not cancel or reduce the coverage amount of any required insurance policy without submitting documentation to the LFA verifying that the Franchisee has obtained alternative insurance in conformance with this Agreement.
10.1.4 Each of the required insurance policies shall be with sureties qualified to do business in the State of Florida, with an A- or better rating for financial condition and financial performance by Best's Key Rating Guide, Property/Casualty Edition.
10.1.5 Franchisee shall deliver to LFA Certificates of Insurance showing evidence of the required coverage within twenty business days of the Effective Date of this contract and annually thereafter.
10.2.1 Franchisee agrees to indemnify, save and hold harmless, and defend the LFA, its officers, employees, agents and boards from and against any liability for damages and for any liability or claims resulting from tangible property damage or bodily injury (including accidental death), to the extent proximately caused by Franchisee's negligent construction, operation, or maintenance of its Cable System, provided that the LFA shall give Franchisee written notice of its obligation to indemnify the LFA. LFA shall use its best efforts to provide such notice within ten (10) days of receipt of a claim or action pursuant to this subsection, but in all events such notice shall not be so late as to adversely affect the Franchisee's ability to defend such claim. Notwithstanding the foregoing, Franchisee shall not indemnify LFA for or otherwise defend LFA against any claim for damages, liability or claims resulting from the willful misconduct or negligence of the LFA, its officers, employees, agents, attorneys, consultants, independent contractors, or third parties or from any activity or function conducted by a Person other than Franchisee in connection with PEG Access, use of the INET or the EAS, or the distribution of any Cable Service over the Cable System.
10.2.2 With respect to Franchisee's indemnity obligations set forth in Subsection 10.2.1, Franchisee shall provide the defense of any claims brought against the LFA by selecting counsel of Franchisee's choice to defend the claim, subject to the consent of the LFA, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent the LFA from cooperating with the Franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense provided however, that after consultation with the LFA, Franchisee shall have the right to defend, settle or compromise any claim or action arising hereunder to the extent LFA shall have no liability, cost, fee or expense associated therewith. In such event, Franchisee shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the terms of any such proposed settlement include the full and complete release of the LFA and do not expose the LFA to other liability due to such settlement and the LFA does not consent to the terms of the settlement, Franchisee shall not settle the claim or action but its obligation to indemnify the LFA shall be limited to the amount of such proposed settlement and Franchisee shall have no further obligation to defend such claims.
10.2.3 The LFA shall be responsible for its own acts of willful misconduct or negligence, or breach of obligation committed by the LFA for which the LFA is legally responsible, subject to any and all defenses and limitations of liability provided by law. The Franchisee shall not be required to indemnify the LFA for acts of the LFA which constitute willful misconduct or negligence, on the part of the LFA, its officers, employees, agents, attorneys, consultants, independent contractors or third parties. This Section 10.2.3 does not and shall not be construed as a waiver, relinquishment or abrogation of the statutory limitation of liability of the LFA or the LFA's right of sovereign immunity or protection under applicable constitutional and statutory provisions in the State of Florida.
10.2.4 In any administrative or judicial proceeding involving a third party claim against the LFA arising from the LFA's grant of this Franchise or the operation hereof, Franchisee at its option and own cost and expense may intervene in such proceeding and the LFA consents to such intervention. In any such proceeding, the LFA agrees to assert its limitation from liability to the full extent permitted by Section 635A of the Communications Act, 47 U.S.C. §555a, or similar applicable law.
TRANSFER OF FRANCHISE.
11.1 Ownership: The ownership and Control structure of Franchisee, which among other things delineates the Affiliate(s) and Affiliated Parent(s) of Franchisee as of the Effective Date of this Agreement, is set forth in Exhibit D.
11.2 Notice of Transfer; Filing Requirements:
11.2.1 Except as otherwise set forth herein, no Transfer of the Franchise shall occur without the prior consent of the LFA, provided that such consent shall not be unreasonably withheld, delayed or conditioned. In accordance with Section 617 of the Communications Act, 47 U.S.C. § 537, the LFA shall act upon any request for a Transfer of the Franchise within 120 days of such request provided that such request contains or is accompanied by such information as is required by the FCC's regulations and by the LFA. If the LFA fails to render a final decision on the request within 120 days of receipt such information, the request shall be deemed granted unless the Franchisee and the LFA agree to an extension of time.
11.2.2 Franchisee shall promptly notify the LFA of any proposed Transfer of the Franchise by submitting to the LFA a petition requesting the approval of the LFA or submitting documentation evidencing that no such consent is required. A petition for consent shall fully describe the proposed action and shall be accompanied by an explanation for the action. The petition shall include all information required to be filed with the FCC and the LFA pursuant to the FCC's regulations. The petition also shall provide complete information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee and the potential impact of the Transfer on Cable Service.
11.3 Procedures for Consideration of Transfer:
11.3.1 After receipt of the petition, the LFA may, in compliance with applicable law and as it deems necessary or appropriate, schedule a public hearing on the petition to consider all relevant issues necessary and appropriate to evaluate the petition. The Franchisee shall provide all requested assistance to the LFA in connection with any such public hearing. For the purpose of determining whether it shall grant its consent, LFA may inquire into: (i) the qualifications of the proposed franchisee involved in any action described in Section 11.2.1 of the Agreement; (ii) all matters relevant to whether said proposed franchisee will adhere to all applicable provisions of the Agreement; and (iii) all other matters the LFA deems relevant in evaluating the petition. Further, the LFA may perform a comprehensive audit of the Franchisee's performance under the terms and conditions of the Franchise and, as appropriate, the Franchisee shall secure the cooperation and assistance of all Persons involved in said action. The LFA shall conduct such audit in good faith and in an expeditious fashion.
11.3.2 As a condition to the granting of any consent required above, the LFA may require that the assignee or transferee involved in such action set forth above shall execute an agreement providing that such Person assumes and agrees to be bound by all applicable provisions of this Agreement. In addition, the LFA reserves whatever rights it may have to impose such other lawful conditions as it deems necessary and appropriate, and the Franchisee reserves all of its rights to contest the lawfulness of any such conditions.
11.4 Special Provisions Concerning Consent to Transfer:
11.4.1 No consent of the LFA is required for the transfer of an ownership or other interest in Franchisee arising out of a merger by Franchisee, any Affiliate, or any Affiliated Parent, whether by merger, sale or otherwise. Provided, however, that Franchisee shall provide notice to LFA of such transfers within a reasonable period of time.
11.4.2 The LFA hereby agrees to consent to the transfer of an ownership or other interest in Franchisee, or a transfer of the rights held by Franchisee under this Franchise Agreement to an Affiliate of Franchisee provided that (i) notice of such transfer shall be provided to the LFA in accordance with Section 11.2 hereof and (ii) Franchisee or an Affiliated Parent executes and delivers to the LFA a Guaranty in the form attached hereto as Exhibit F.
11.4.3 No consent of the LFA is required for the transfer of an ownership or other interest in Franchisee, or the rights held by Franchisee under this Franchise Agreement made in trust, by mortgage or by other hypothecation, by assignment of any rights, title or interest of the Franchisee in the Franchise or Cable System in order to secure indebtedness.
11.5 Release: In the event the Franchisee provides a Guaranty pursuant to Section 11.4.2 herein, the Franchisee may request that the LFA release said Guaranty and the LFA shall act upon such request without delay. In considering such request, the LFA shall make its decision as to whether or not to release said Guaranty by and upon evaluating the factors provided in Section 11.3 above. The LFA shall conduct such evaluation and reach its decision as promptly as practicable and shall not unreasonably withhold, delay or deny its consent to the release of said Guaranty. Upon making its decision, the LFA shall promptly deliver to Franchisee written notice thereof. If the LFA shall agree to release said Guaranty, it shall promptly deliver to the Franchisee a written document evidencing such release of said Guaranty.
RENEWAL OF FRANCHISE.
12.1 Section 626: The LFA and Franchisee agree that any proceedings undertaken by the LFA that relate to the renewal of this Franchise shall be governed by and comply with the provisions of Section 626 of the Communications Act, 47 U.S.C. § 546.
12.2 Notice of Community Needs: In addition to the procedures set forth in said Section 626 of the Communications Act, the LFA agrees to notify Franchisee of all of the LFA's assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of Franchisee under this Franchise. The LFA further agrees that such assessments shall be provided to Franchisee promptly so that Franchisee has adequate time to submit a proposal under Section 626 and complete renewal of the Franchise prior to expiration of its term.
12.3 Renewal Negotiations: Notwithstanding anything to the contrary set forth herein, Franchisee and the LFA agree that at any time during the term of this Franchise, while affording the public appropriate notice and opportunity to comment, the LFA and Franchisee may agree to undertake and finalize informal negotiations regarding renewal of this Franchise and the LFA may grant a renewal thereof. The rights set forth in this Section are permissive and not mandatory.
12.4 Consistency: Franchisee and the LFA consider the terms set forth in this subsection to be consistent with the express provisions of Section 626.
ENFORCEMENT AND TERMINATION OF FRANCHISE.
13.1 Notice of Non-Compliance: The parties agree that in the event of a material violation by Franchisee of this Franchise, the LFA shall provide written notice ("Notice of Non-Compliance") and an opportunity to the Franchisee to cure such material violation. The failure to promptly cure such material violation, or in the event such a material violation cannot be immediately cured, the failure to promptly commence and diligently pursue to completion the cure, shall constitute an Event of Default. A material violation that could give rise to a Notice of Non-Compliance and ultimately an Event of Default shall include the following:
13.1.1 Any failure to comply with any material provision of this Agreement;
13.1.2 Franchisee, under federal bankruptcy laws and rules, (i) files for bankruptcy, (ii) becomes or is declared insolvent, or is subject to involuntary proceedings related to its liquidation, insolvency or the appointment of a receiver, and such proceedings are not dismissed within sixty (60) days, or (iii) makes an assignment for the benefit of all or substantially all of its creditors; and
13.1.3 Franchisee discontinues its business (other than as permitted as set forth elsewhere in this Agreement).
13.2 Franchisee's Right to Cure or Respond: Franchisee shall have forty-five (45) days from receipt of the Notice of Non-Compliance to: (i) contest (in whole or in part) the assertions contained in the Notice of Non-Compliance by providing specific and detailed written objections stating why Franchisee is not in material violation of this Franchise; (ii) cure such material violation ; or (iii) in the event that, by the nature of the material violation, it cannot be completely cured within the forty-five (45) day period, promptly commence to cure such material violation and notify the LFA of the steps being taken and the projected date that they will be completed and diligently and continuously pursue same. Time is of the essence in this Agreement and Franchisee must proceed to cure any material violation in a prompt and expeditious manner.
13.3 Remedies: In the event that Franchisee fails to comply with the requirements set forth in subsection 13.2, the LFA shall notify Franchisee of its Event of Default. Franchisee shall have whatever time period under applicable law to file any appeal of such determination. In the event Franchisee fails to so appeal or loses such an appeal, then the LFA may do any and all of the following:
13.3.1 Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages;
13.3.2 Commence an action at law for monetary damages or seek other equitable relief; and
13.3.3 Seek to revoke or terminate the Franchise in accordance with Section 13.5 below.
13.4 Rights, Remedies and Recourses Cumulative: Except as otherwise provided herein, all rights, remedies and recourses afforded either party herein or otherwise available by law or in equity, in the State of Florida (a) shall be deemed cumulative and concurrent, (b) may be pursued separately, successively or concurrently at a party's discretion, (c) may be exercised as often as the occasion thereof shall arise, it being understood that the exercise, failure to exercise or election to exercise any of the same shall in no event be construed as a waiver of same or of any other right, remedy, or recourse available, and (d) are intended to be, and shall be, nonexclusive.
13.5.1 Should the LFA seek to revoke the Franchise after following the procedures set forth above in this Article 13, the LFA shall give written notice to Franchisee of its intent. The notice shall set forth the exact nature of the noncompliance. The Franchisee shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event the LFA has not received a satisfactory response from Franchisee, it may then terminate the Franchise consistent with this Article 13.
13.5.2 In the event the LFA has received a written response setting forth the objections and reasons for the objections to revocation, the Franchisee shall be entitled to a hearing on same to show and introduce evidence and testimony into the record that the proposed grounds for revocation did not or do not exist as the case may be. The hearing shall be before the LFA City Council, provided, however, the hearing shall be held in front of a hearing officer if the LFA has adopted a hearing officer appeal process. If the hearing is in front of a hearing officer, the Franchisee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants of the LFA, to compel the testimony of other persons as permitted by law, and to question and/or cross examine witnesses. A complete verbatim record and transcript shall be made of such hearing.
13.5.3 If a hearing officer is used, following the hearing, the hearing officer shall issue its findings and conclusions in writing and shall determine (i) whether an Event of Default has occurred; (ii) whether such Event of Default is excusable; and (iii) whether such Event of Default has been cured or will be cured by the Franchisee. The hearing officer shall determine whether to revoke the Franchise based on the information presented, or, where applicable, grant additional time to the Franchisee to effect any cure. If the hearing officer determines that the Franchise shall be revoked, the hearing officer shall promptly provide Franchisee with a written decision setting forth its reasoning.
13.5.4 Franchisee may appeal any determination made by the City Council or Hearing Officer, as the case may be, to an appropriate court, which shall have the power to review the decision of the hearing officer by petition for writ of certiorari or de novo to the extent permitted by law, and de novo, to the extent permitted by law, for a Council determination to revoke. Franchisee shall be entitled to such relief as the court finds appropriate. Such appeal must be taken within sixty (60) days of Franchisee's receipt of the determination of the hearing officer.
13.5.5 The LFA may, at its sole discretion, take any lawful action which it deems appropriate to enforce the LFA's rights under the Franchise in lieu of revocation of the Franchise.
13.6 This Section has been deleted.
13.7 Acknowledgment of Cure. The LFA shall promptly provide to the Franchisee a written acknowledgment of the cure of any specific breach of this Agreement that has been cured by the Franchisee to the satisfaction of the LFA.
SECURITY FUND/ LETTER OF CREDIT.
14.1 Letter: The Franchisee shall post a letter of credit, in the form attached hereto as Exhibit E, with the LFA in the amount of One Hundred Thousand Dollars and No Cents ($100,000.00). The letter of credit shall be used to ensure the faithful performance by the Franchisee of its obligations under this Franchise Agreement. No bond shall be required.
14.2 Payment Request: To the extent the LFA intends to request payment under the letter of credit for an amount due, after the notice and opportunity to cure period set forth in Section 15.1, the LFA shall provide the Franchisee with thirty (30) day's notice to pay any liquidated damages due. The LFA may draw those liquidated damages from the letter of credit, unless Franchisee promptly and fully makes such payments within such (30) day period.
14.3 Continuation: The letter of credit shall be maintained in the amount of One Hundred Thousand Dollars and No Cents ($100,000.00) during the entire term of this Agreement. If amounts are withdrawn pursuant to this Agreement, then Franchisee shall promptly replenish the letter of credit; provided, that the said replenishment obligation shall be suspended during the period of any judicial challenge by the Franchisee to the propriety of said withdrawal. If a court of competent jurisdiction determines that said withdrawal by the LFA was improper, the LFA shall restore the improperly withdrawn amount.
15.1 Liquidated Damages: The parties agree that each of the following failures may result in damages to the LFA that are difficult to ascertain or prove. Accordingly, the parties agree that the liquidated damages in the amounts set forth below are fair and reasonablemonetary estimations of the damages that the LFA may incur and are the exclusive liquidated damages/penalties applicable to this Agreement. Accordingly, the Franchisee shall be liable to the LFA for the amounts specified in this Section for any of the following failures by the Franchisee to comply with the provisions of this Agreement, unless, within thirty (30) days after receipt of notice by the Franchisee from the LFA, or such longer period as the LFA shall specify, the Franchisee has cured the alleged failure, presented facts and arguments in refutation or excuse of the alleged failure that reasonably satisfies the LFA, or provided a cure plan and schedule that reasonably satisfies the LFA. At the option of the LFA, such amounts may be withdrawn from the letter of credit pursuant to Section 14.2. The LFA retains its rights to seek specific performance of the requirements related to each failure listed below. The amounts due are for the time periods from commencement through the date of performance.
15.1.1 Failure to make Service available and to continue to offer Service by the dates set forth in Article 3 above: Five Hundred Dollars ($500.00) per day for each day that such failure continues; and
15.1.2 Willful or persistent failure to provide reports and records in accordance with Article 9 above: Five Hundred Dollars ($500.00) per day for each record request that such failure continues; and
15.2 Per Annum 15.1.1: In no event shall liquidated damages pursuant to Section 15.1.1 exceed Fifty Thousand Dollars ($50,000.00) per annum commencing on the Effective Date of the Franchise.
15.3 Per Annum 15.1.2: In no event shall liquidated damages pursuant to Section 15.1.2 exceed Twenty Thousand Dollars ($20,000.00) each per annum commencing on the Effective Date of the Franchise.
16.1 Recitals: The recitals set forth in this Agreement are incorporated into the body of this Agreement as if they had been originally set forth herein.
16.2 Headings: The headings contained in this Franchise are for reference purposes only and shall not in any way affect the construction or interpretation of this Franchise.
16.3 Governing Law: This Agreement shall be governed by and the interpretation of its terms shall be construed in accordance with the laws of the State of Florida, without regard to conflicts of law rules.
16.4 Actions of Parties: In any action by the LFA or Franchisee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld, delayed or conditioned.
16.5 Binding Acceptance: This Agreement shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns, and the promises and obligations herein shall survive the expiration date hereof.
16.6 Preemption: In the event that federal or state law, rules, or regulations preempt a provision or limit the enforceability of a provision of this Agreement, the provision shall be read to be preempted to the extent, and for the time, but only to the extent and for the time, required by law. In that event, the parties shall negotiate in good faith to reconstitute this Agreement in a form that, to the maximum extent possible, is consistent with the parties' original intent and preserves the benefits bargained for by each party. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of the LFA.
16.7 Force Majeure: Franchisee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by a Force Majeure. Furthermore, the parties hereby agree that it is not the LFA's intention to subject Franchisee to penalties, fines, forfeitures or revocation of the Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on Subscribers.
16.8 Notices: Unless otherwise expressly stated herein, notices required under the Franchise shall be mailed first class, postage prepaid, to the addressees below. Each party may change its designee by providing written notice to the other party.
Notices to Franchisee shall be mailed to:
Verizon Florida, Inc.
Mr. Alan Ciamporcero
President - Southeast Region
201 North Franklin Street C006
Tampa, Florida 33602
with a copy to:
Mr. Jack White
Senior Vice President & General Counsel
One Verizon Way
Room VC 43E010
Basking Ridge, New Jersey 07920-1097
Notices to the LFA shall be mailed to:
Mindy Snyder, Cable Television Manager
Office of Cable Communication
City of Tampa
202 West Seventh Avenue
Tampa, Florida 33602
With a copy to:
315 East Kennedy Blvd.
Tampa, Florida 33602
16.9 Entire Agreement: This Franchise and the Exhibits hereto constitute the entire agreement between Franchisee and the LFA. Amendments to this Franchise shall be mutually agreed to in writing by the parties.
16.10 Captions: The captions and headings of Sections throughout this Agreement are intended solely to facilitate reading and reference to the Sections and provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement.
16.11 Severability: If any Section, subsection, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other Section, subsection, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise.
16.12 Protection of Subscriber Privacy: The Franchisee shall comply with Section 631 of the Cable Act (47 U.S.C. § 551) and FCC regulations adopted pursuant thereto.
16.13 Police Power: Nothing in the Franchise Agreement shall be construed to prohibit the reasonable, necessary and lawful exercise of the LFA's police powers. However, if the reasonable, necessary and lawful exercise of the LFA's police powers results in any material alteration of the terms and conditions of this Franchise, then the parties shall modify this Franchise Agreement to the mutual satisfaction of both parties to ameliorate the negative effects on the Franchisee of the material alteration. If the parties cannot reach agreement on the above referenced modification to the Franchise Agreement, then Franchisee may terminate this Agreement without further obligation to the LFA (other than any PEG and INET grants then accrued and any obligation of indemnity accruing prior to such termination) or, at Franchisee's option, the parties agree to submit the matter to binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association.
16.14 Equal Employment Opportunity: Franchisee shall, in accordance with Federal, State and local law and regulations, afford equal opportunity and non-discrimination in employment to all individuals, regardless of their race, color, religion, age, sex, national origin, sexual orientation or handicap. Franchisee shall comply with all applicable requirements of the Americans with Disabilities Act. The Franchisee shall encourage equal business opportunities for minority and female business enterprises by notifying such enterprises that the Franchisee has subcontracting opportunities available, disseminating the Franchisee's equal business opportunity policy through advertising, making specific and continuing written and oral recruitment efforts, to allow for greater opportunities for participation. The Franchisee shall keep records of its equal business opportunity activities.
16.15 Construction of the FTTP Network: The parties acknowledge and agree that the construction of the FTTP Network is subject to Article IV of Section 22 of city code on public rights of way to the extent permitted by State or Federal law.
16.16 City Code of Ethics: In connection with this Agreement, Franchisee hereby covenants and agrees that it shall comply with all applicable governmental laws, statutes, rules and regulations including, without limitation, the City of Tampa's Code of Ethics. Pursuant to Section 2-522 of the City of Tampa Code, Franchisee acknowledges that if it fails to comply with the City of Tampa's Code of Ethics, such a failure shall render the Agreement voidable by the City and subject Franchisee to debarment from any future City contracts or agreements.
16.17 Compliance with Laws: The Franchisee and the LFA shall comply with all applicable laws, rules, and regulations.
16.18 Modification: This Franchise shall not be modified except by written instrument executed by both parties.
16.19 FTTP Network Transfer Prohibition: Notwithstanding anything in the Cable Ordinance to the contrary, under no circumstances including, without limitation, upon expiration, revocation, termination, denial of renewal of the Franchise or any other action to forbid or disallow Franchisee from providing Cable Service, shall Franchisee or its assignees be required to sell any right, title, interest, use or control of any portion of Franchisee's FTTP Network including, without limitation, any spectrum capacity used for Cable Service or otherwise, to the LFA or any third party. Franchisee shall not be required to remove the FTTP Network(s) or to relocate the FTTP Network(s) as a result of revocation, expiration, termination, denial of renewal or any other action to forbid or disallow Franchisee from providing Cable Services. This provision is not intended to contravene leased access requirements under Title VI or PEG requirements set forth in this Agreement.
16.20 Effective Competition: For purposes of Cable Ordinance Section 7-86 and 7-112, as of the Effective Date, Franchisee is subject to effective competition, as that term is defined and applied under Title VI and such Sections shall not apply.
AGREED TO THIS _____ DAY OF _____________, 2006.
CITY OF TAMPA, FLORIDA
By: Pam Iorio, Mayor (SEAL)
By: Shirley Foxx-Knowles, City Clerk
Approved as to Legal Sufficiency: David L. Smith, City Attorney
Verizon Florida Inc.
PUBLIC BUILDINGS TO BE PROVIDED CABLE SERVICE.
City Hall - Main
315 E. Kennedy Blvd., 33602
City Hall Annex
306 E. Jackson St., 33602
Tampa Museum of Art (Arts & Cult. Aff.)
600 North Ashley Drive, 33602
Construction Service Center (BHD)
1400 North Boulevard, 33607
City of Tampa (German American Club)
2105 North Nebraska Ave., 33602
202 W.7th Ave., 33602
Archives & Records (Clerk) / Internal Affairs (TPD)
1102 North Florida Ave., 33602
Old Free Library Building
102 E. 7th Ave., 33602
333 South Franklin Street, 33602
Fire / Police Communications
2920 E. Henry Ave., 33610
2519 W. Chestnut St., 33607
Fire & Police Pension
301 North Boulevard, 33603
Fire Rescue - Station #1
808 East Zack Street, 33602
Fire Rescue - Station #3
103 S. Newport Ave., 33606
Fire Rescue - Station #4
2100 E. 11th Ave., 33605
Fire Rescue - Station #5
3900 N. Central Ave., 33602
Fire Rescue - Station #6
311 S. 22nd St., 33605
Fire Rescue - Station #7
6129 N. Nebraska Ave., 33604
Fire Rescue - Station #8
2015 N. Manhattan Ave. 33607
Fire Rescue - Station #9
2525 W. Chestnut St., 33607
Fire Rescue - Station #10
3108 N. 34th St., 33605
Fire Rescue - Station #11
710 E. Fairbanks St., 33604
Fire Rescue - Station #12
3073 W. Hillsborough Ave., 33614
Fire Rescue - Station #13
2713 E. Annie St., 33610
Fire Rescue - Station #14
1325 S. Church Ave., 33629
Fire Rescue - Station #15
4919 S. Himes Ave., 33615
Fire Rescue - Station #16
5126 E. 10th Ave., 33619
Fire Rescue - Station #17
601 E. Davis Blvd., 33606
Fire Rescue - Station #18
5706 N. 30th St., 33610
Fire Rescue - Station #19
4916 W. Ingraham St., 33616
Fire Rescue - Station #20
16200 Bruce B. Downs Blvd., 33647
Fire Rescue - Station #22
5020 W. Tampa Bay Blvd. 33614
Old Fire Station #2
2611 N. 12th St., 33605
402 N. 22nd St., 33605
116 N. 34th St., 33605
Parks & Recreation - Adminstration
1420 North Tampa Street, 33602
Parks & Recreation - Lowery Park
7525 North Boulevard, 33604
P & R's Athletic Office / Gymnastics & Dance
6925 N. Florida Ave., 33604
Parks & Recreation
730 W. Emma Street,
Anderson Playground / Kate Jackson Center
821 S. Rome Ave.
Al Lopez Park
4810 N. Himes
American Legion Playground
106 E. Sligh Ave.
Calvin Taylor Playground & Craft Studio
611 W. Indiana Ave.
11001 N. 15th St.
Forest Hills Center/Playground
724 W. 109th Ave.
George Bartholomew N. Tampa Center/Playground
8608 12th St.
5209 North 12th St.
Grant Park Center/Playground
3724 N. 54th St.
Hubert Park & Craft Studio
309 N. Hubert Ave.
Hyde Park Craft Studio
702 S. Albany
Joe F. Abraham's Fitness&Wellness Center
5212 Interbay Blvd.
Loretta Ingraham Center/Playground
1709 N. Hubert
MacFarlane Park (Barksdale Center)
1700 N. MacDill Ave.
Marting Luther King, Jr. Center/Playground
2300 N. Oregon Ave.
Oak Park Center/Playground
5400 E. 14th Ave.
Port Tampa Center
5701 Lancaster Street
Ragan Park / Community Center
1200 E. Lake
Rey Park Center/Playground
2301 N. Howard Ave.
Seminole Heights Garden Center
5800 Central Ave.
SW Port Tampa Center/Playground
7506 Morton St.
Temple Crest Center/Playground
8116 N. 37th St.
Ybor Craft Studio
411 North Franklin Street, 33602
Police - Athletic League (PAL)
1924 W. Diana St., 33604
Police - District 1
3818 W. Tampa Bay Blvd., 33614
Police - District 2
9330 N. 30th Street, 33612
Police - Fraternal Order of Police
6912 N. Florida Ave., 33604
4400 W. Tampa Bay Blvd., 33614
Police - K9 Unit
110 S. 34th St., 33605
Public Works - Facilities Maintenance
1550 N. Grady Ave.
Public Works - Fleet Maintenance
1508 North Clark Ave., 33607
Public Works - Parking Division
107 North Franklin Street, 33602
40th St. Yard at 40th St.
Sandra Freedman Tennis Complex
59 Columbia Dr.
4010 West Spruce Street, 33607
Solid Waste/Scalehouse Transfer Station
107 N. 34th Street, 33605
3804 East 26th Ave., 33605
Information Technology Systems
200 West Tyler Street, 33602
Wastewater - Water Treatment Plant
2700 Maritime Blvd., 33605
2609 North Rome Ave., 33607
7125 North 30th Street, 33610
Water Distribution Center
2603 North Rome Ave., 33607
School Board of Hillsborough County
901 E. Kennedy Blvd.
School Board of Hillsborough County - Valasco Ctr.
1202 E. Palm Ave., 33605
School - Elem
5602 N. Lois Ave., 33614
School - Elem
3910 Fair Oaks Ave., 33611
School - Elem
2802 Ballast Point Blvd., 33611
School - Elem
Booker T. Washington
1407 Estelle St., 33605
School - Elem
400 W. Osborne Ave., 33603
School - Elem
2312 E. Yukon, 33604
School - Elem
6001 S. Himes Ave., 33611
School - Elem
16541 W. Tampa Palms Blvd., 33647
School - Elem
723 E. Hamilton Ave., 33604
School - Elem
2618 Corrine St., 33605
School - Elem
1730 Union St., 33607
School - Elem
1607 E. Curtis St., 33610
School - Elem
10112 Ola Ave., 33612
School - Elem
2014 E. Diana St., 33610
School - Elem
705 DeLeon St., 33606
School - Elem
3910 Morrison Ave., 33629
School - Elem
2915 Massachusetts Ave., 33602
School - Elem
10900 Cross Creek Blvd., 33647
School - Elem
9202 Highland Oak Dr., 33647
School - Elem
1315 Spruce St., 33607
School - Elem
4704 Montgomery Ave., 33616
School - Elem
305 E. Columbus Dr., 33602
School - Elem
3719 N. 17th St., 33610
School - Elem
4207 26th St., 33610
School - Elem
4201 Estrella St., 33629
School - Elem
1721 N. MacDill Ave., 33607
School - Elem
5202 Mendenhall Drive, 33603
School - Elem
205 S. Bungalow Park Ave., 33609
School - Elem
6315 N. Armenia Ave., 33604
School - Elem
4322 E. Ellicott St., 33610
School - Elem
1908 E. 2nd Ave., 33605
School - Elem
11701 Bull Run Dr., 33617
School - Elem
3224 E. Cayuga, 33610
School - Elem
4405 E. Sligh Ave., 33610
School - Elem
3205 Ferdinand Ave., 33629
School - Elem
6201 Central Ave., 33604
School - Elem
11311 N. 15th St., 33612
School - Elem
6402 N. 40th St., 33610
School - Elem
8412 13th St., 33604
School - Elem
Tampa Bay Boulevard
3111 Tampa Bay Blvd., 33647
School - Elem
6100 E. Tampa Palms Blvd., 33647
School - Elem
8507 N. Habana Ave., 33614
School - Elem
7110 S. West Shore Blvd., 33616
School - Elem
2700 W. Cherry St., 33607
School - Elem
10801 N. 22nd St., 33612
10201 N. Boulevard, 33612
10101 Cross Creek Blvd., 33647
1724 S. Manhattan Ave. 33629
4302 24th St., 33610
3915 E. 21st Ave., 33605
17400 Commerce Park Blvd., 33647
4444 Bay Vista Ave., 33611
4702 N. Central Ave., 33603
4716 Montgomery Ave., 33616
3415 16th St., 33605
1510 N. Manhattan Ave., 33607
2011 E. Sligh Ave., 33610
1125 Spruce St., 33607
8715 N. 22nd St., 33064
5020 N. 47th St., 33610
1005 Swann Ave., 33606
1807 E. Dr. MLK Blvd., 33610
1701 N. Boulevard, 33607
9401 N. Boulevard, 33612
17410 Commerce Park Blvd., 33647
5000 Central Ave., 33603
4401 Cypress St., 33607
4801 N. 22nd St., 33610
2415 S. Himes Ave., 33629
6311 S. Lois Ave., 33616
Alternate to Out of School Suspension
5410 N. 20th St., 33610
Caminiti Exceptional Student
2600 W. Humphrey, 33614
Carver Exceptional Student
1142 Laurel St., 33607
James K-8 Middle
4302 E. Ellicott St., 33610
Lavoy Exceptional Center
4410 W. Main St., 33607
1225 India St., 33602
5707 N. 22nd St., 33610
School - Tech
2222 N. Tampa St., 33602
School - Tech
D. W. Waters Career
2704 Highland Ave., 33602
School - Tech
Hillsborough Education Foundation (Erwin Technical)
2010 E. Hillsborough Ave., 33610
School - Tech
3610 E. 10th Ave., 33605
School - Univ
Hillsborough Community College
39 Columbia Dr.
School - Univ
4001 W. Tampa Bay Blvd.
School - Univ
2001 14th St.
School - Univ
University of South Florida
4202 E. Fowler Ave.
School - Univ
University of Tampa
401 W. Kennedy Blvd.
City of Tampa Television (CTTV), city's government access channel (Currently on Bright House Channel 15)
The Education Channel, the educational access channel (Currently on Bright House channel 18)
Tampa Bay Community Network, the public access channel run by Speak Up Tampa Bay (Currently on Bright House channel 19)
Second public access channel (Currently on Bright House channel 20)
Second educational access channel (Currently on Bright House channel 21)
Hillsborough Television (HTV), the county's government access channel (Currently on Bright House channel 22)
CUSTOMER SERVICE STANDARDS
These standards shall, starting six months after the Service Date, apply to the Franchisee to theextent it is providing Cable Services over the Cable System in the Franchise area.
SECTION 1: DEFINITIONS
A. Respond: Franchisee's investigation of a Service Interruption by receiving a Subscriber call and opening a trouble ticket, if required.
B. Significant Outage: A significant outage of the Cable Service shall mean any Service Interruption lasting at least four (4) continuous hours that affects at least ten percent (10%) of the Subscribers in the Service Area.
C. Service Call: The action taken by the Franchisee to correct a Service Interruption the effect of which is limited to an individual Subscriber.
D. Standard Installations: Installations where the Subscriber is within one hundred twenty five (125) feet of trunk or feeder lines.
SECTION 2: TELEPHONE AVAILABILITY
A. The Franchisee shall maintain a toll-free number to receive all calls and inquiries from Subscribers in the Franchise Area and/or residents regarding Cable Service. Franchisee representatives trained and qualified to answer questions related to Cable Service in the Service Area must be available to receive reports of Service Interruptions twenty-four (24) hours a day, seven (7) days a week, and other inquiries at least forty-five (45) hours per week. Franchisee representatives shall identify themselves by name when answering this number.
B. The Franchisee's telephone numbers shall be listed, with appropriate description (e.g. administration, customer service, billing, repair, etc.), in the directory published by the local telephone company or companies serving the Service Area, beginning with the next publication cycle after the Effective Date.
C. Franchisee may use an Automated Response Unit ("ARU") or a Voice Response Unit ("VRU") to distribute calls. If a foreign language routing option is provided, and the Subscriber does not enter an option, the menu will default to the first tier menu of English options. After the first tier menu (not including a foreign language rollout) has run through three times, if Subscribers do not select any option, the ARU or VRU will forward the call to a queue for a live representative. The Franchisee may reasonably substitute this requirement with another method of handling calls from Subscribers who do not have touch-tone telephones.
D. Under Normal Operating Conditions, calls received by the Franchisee shall be answered within thirty (30) seconds. The Franchisee shall meet this standard for ninety percent (90%) of the calls it receives at all call centers receiving calls from Subscribers, as measured on a cumulative quarterly calendar basis. Measurement of this standard shall include all calls received by the Franchisee at all call centers receiving calls from Subscribers, whether they are answered by a live representative, by an automated attendant, or abandoned after 30 seconds of call waiting.
E. Under Normal Operating Conditions, callers to the Franchisee shall receive a busy signal no more than three (3%) percent of the time during any calendar quarter.
F. Franchisee will support telephone availability for the hearing impaired through its normal operations.
SECTION 3: INSTALLATIONS AND SERVICE APPOINTMENTS
A. All installations will be in accordance with FCC rules, including but not limited to, appropriate grounding, connection of equipment to ensure reception of Cable Service, and the provision of required consumer information and literature to adequately inform the Subscriber of the utilization of the Franchisee-supplied equipment and Cable Service.
B. The Standard Installation shall be performed within seven (7) business days after the placement of the Optical Network Terminal ("ONT") on the customer's premises or within seven (7) business days after an order is placed if the ONT is already installed on the customer's premises. The Franchisee shall meet this standard for ninety-five percent (95%) of the Standard Installations it performs, as measured on a calendar quarter basis, excluding customer requests for connection later than seven (7) business days after ONT placement or for connection later than seven (7) business days after an order is placed if the ONT is already installed on the customer's premises.
C. The Franchisee will offer Subscribers "appointment window" alternatives for arrival to perform installations, Service Calls, disconnects and other activities of a maximum four (4) hours scheduled time block during appropriate daylight available hours, usually beginning at 8:00 AM unless it is deemed appropriate to begin earlier by location exception. At the Franchisee's discretion, the Franchisee may offer Subscribers appointment arrival times other than these four (4) hour time blocks, if agreeable to the Subscriber. These hour restrictions do not apply to weekends.
SECTION 4: SERVICE INTERRUPTIONS AND OUTAGES
A. The Franchisee shall promptly notify the LFA of any Significant Outage of the Cable Service.
B. The Franchisee shall exercise commercially reasonable efforts to limit any Significant Outage for the purpose of maintaining, repairing, or constructing the Cable System. Except in an emergency or other situation necessitating a more expedited or alternative notification procedure, the Franchisee may schedule a Significant Outage for a period of more than four (4) hours during any twenty-four (24) hour period only after the LFA and each affected Subscriber in the Service Area have been given fifteen (15) days prior notice of the proposed Significant Outage.
C. Franchisee representatives who are capable of responding to Service Interruptions must be available to Respond twenty-four (24) hours a day, seven (7) days a week.
D. Under Normal Operating Conditions, the Franchisee must Respond to a call from a Subscriber regarding a Service Interruption or other service problems within the following time frames:
(1) Within twenty-four (24) hours, including weekends, of receiving subscriber calls respecting Service Interruptions in the Service Area.
(2) The Franchisee must begin actions to correct all other Cable Service problems the next business day after notification by the Subscriber or the LFA of a Cable Service problem.
E. Under Normal Operating Conditions, the Franchisee shall provide a credit upon Subscriber request when all Channels received by that Subscriber are out of service for a period of four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate amount of the affected Subscriber(s) current monthly bill. In order to qualify for the credit, the Subscriber must promptly report the problem and allow the Franchisee to verify the problem if requested by the Franchisee. If Subscriber availability is required for repair, a credit will not be provided for such time, if any, that the Subscriber is not reasonably available.
F. Under Normal Operating Conditions, if a Significant Outage affects all Cable Services for more than twenty-four (24) consecutive hours, the Franchisee shall issue an automatic credit to the affected Subscribers in the amount equal to their monthly recurring charges for the proportionate time the Cable Service was out, or a credit to the affected subscribers in the amount equal to the charge for the basic plus enhanced basic level of service for the proportionate time the Cable Service was out, whichever is technically feasible or, if both are technically feasible, as determined by Franchisee provided such determination is nondiscriminatory. Such credit shall be reflected on Subscriber billing statements within the next available billing cycle following the outage.
G. With respect to service issues concerning Cable Services provided to LFA facilities, Franchisee shall Respond to all inquiries from the LFA within four (4) hours and shall commence necessary repairs within twenty-four (24) hours under Normal Operating Conditions. If such repairs cannot be completed within twenty-four (24) hours, the Franchisee shall notify the LFA in writing as to the reason(s) for the delay and provide an estimated time of repair.
SECTION 5: CUSTOMER COMPLAINTS
Under Normal Operating Conditions, the Franchisee shall investigate Subscriber complaints referred by the LFA within seventy-two (72) hours. The Franchisee shall notify the LFA of those matters that necessitate an excess of seventy-two (72) hours to resolve, but those matters must be resolved within seven (7) days of the initial complaint. Franchisee shall submit to the LFA written updates of its progress in resolving any complaint referred by the LFA. The LFA may require reasonable documentation to be provided by the Franchisee to substantiate the request for additional time to resolve the problem. For purposes of this Section, "resolve" means that the Franchisee shall perform those actions, which, in the normal course of business, are necessary to investigate the Subscriber's complaint and advise the Subscriber of the results of that investigation.
SECTION 6: BILLING
A. Subscriber bills must be itemized to describe Cable Services purchased by Subscribers and related equipment charges. Bills shall clearly delineate activity during the billing period, including optional charges, rebates, credits, and aggregate late charges. Franchisee shall, without limitation as to additional line items, be allowed to itemize as separate line items franchise fees and taxes The Franchisee shall maintain records of the date and place of mailing of bills.
B. The Franchisee will not charge a potential Subscriber or Subscriber for any Cable Service or related equipment that the Subscriber has not affirmatively requested by name. A Subscriber's failure to refuse Franchisee's proposal to provide such service or equipment shall not be an affirmative request for such service or equipment.
C. All bills shall be rendered monthly, unless otherwise authorized by the Subscriber, or unless service was provided for less than one (1) month.
D. Every Subscriber with a current account balance sending payment directly to Franchisee shall be given at least twenty (20) days from the date statements are mailed to the Subscriber until the payment due date.
E. A specific due date shall be listed on the bill of every Subscriber whose account is current. Delinquent accounts may receive a bill which lists the due date as upon receipt; however, the current portion of that bill shall not be considered past due except in accordance with Subsection 6.D. above.
F. Any Subscriber who, in good faith, disputes all or part of any bill shall have the option of withholding the disputed amount without disconnect or late fee being assessed until the dispute is resolved provided that:
(1) The Subscriber pays all undisputed charges;
(2) The Subscriber provides notification of the dispute to Franchisee within five (5) days prior to the due date; and
(3) The Subscriber cooperates in determining the accuracy and/or appropriateness of the charges in dispute.
(4) It shall be within the Franchisee's sole discretion to determine when the dispute has been resolved.
G. Under Normal Operating Conditions, the Franchisee shall initiate investigation and resolution of all billing complaints received from Subscribers within five (5) business days of receipt of the complaint. Final resolution shall not be unreasonably delayed.
H. The Franchisee shall provide a telephone number and address on the bill for Subscribers to contact the Franchisee.
I. The Franchisee shall forward a copy of any Cable Service billing inserts or other mailing sent to Subscribers to the LFA upon request.
J. The Franchisee shall provide all Subscribers with the option of paying for Cable Service by check or an automatic payment option, where the amount of the bill is automatically deducted from a checking account designated by the Subscriber. Franchisee may in the future, at its' discretion, permit payment by using a major credit card on a preauthorized basis. Based on credit history, at the option of the Franchisee, the payment alternative may be limited
SECTION 7: DEPOSITS, REFUNDS AND CREDITS
A. The Franchisee may require refundable deposits from Subscribers with 1) a poor credit or poor payment history, 2) who refuse to provide credit history information to the Franchisee, or 3) who rent Subscriber equipment from the Franchisee, so long as such deposits are applied on a non-discriminatory basis. The deposit the Franchisee may charge Subscribers with poor credit or poor payment history or who refuse to provide credit information may not exceed an amount equal to an average Subscriber's monthly charge multiplied by six (6). The maximum deposit the Franchisee may charge for Subscriber equipment is the cost of the equipment which the Franchisee would need to purchase to replace the equipment rented to the Subscriber.
B. The Franchisee shall refund or credit the Subscriber for the amount of the deposit collected for equipment, which is unrelated to poor credit or poor payment history, after one year and provided the Subscriber has demonstrated good payment history during this period. The Franchisee shall pay interest on other deposits if required by law.
C. Under Normal Operating Conditions, refund checks will be issued within the next available billing cycle following the resolution of the event giving rise to the refund, (e.g. equipment return and final bill payment).
D. Credits for Cable Service will be issued no later than the Subscriber's next available billing cycle, following the determination that a credit is warranted, and the credit is approved and processed. Such approval and processing shall not be unreasonably delayed.
E. Bills shall be considered paid when appropriate payment is received by the Franchisee or its' authorized agent. Appropriate time considerations shall be included in the Franchisee's collection procedures to assure that payments due have been received before late notices or termination notices are sent.
SECTION 8: RATES, FEES AND CHARGES
A. If, during the term of this Franchise, Franchisee becomes no longer subject to effective competition and federal law permits the LFA to regulate Franchisee's Basic Service tier rates under such circumstances, then LFA reserves the right to do so consistent with law.
B. The Franchisee shall not, except to the extent expressly permitted by law, impose any fee or charge for Service Calls to a Subscriber's premises to perform any repair or maintenance work related to Franchisee equipment necessary to receive Cable Service, except where such problem is caused by a negligent or wrongful act of the Subscriber (including, but not limited to a situation in which the Subscriber reconnects Franchisee equipment incorrectly) or by the failure of the Subscriber to take reasonable precautions to protect the Franchisee's equipment (for example, a dog chew).
C. The Franchisee shall provide reasonable notice to Subscribers of the possible assessment of a late fee on bills or by separate notice.
SECTION 9: DISCONNECTION /DENIAL OF SERVICE
A. The Franchisee shall not terminate Cable Service for nonpayment of a delinquent account unless the Franchisee provides a notice of the delinquency and impending termination at least eight (8) days prior to service suspension and twenty days prior to the proposed final termination. The notice shall be mailed to the Subscriber to whom the Cable Service is billed. The notice of delinquency and impending termination may be part of a billing statement.
B. Cable Service terminated in error must be restored without charge within twenty-four (24) hours of notice. If a Subscriber was billed for the period during which Cable Service was terminated in error, a credit shall be issued to the Subscriber if the Service Interruption was reported by the Subscriber.
C. Nothing in these standards shall limit the right of the Franchisee to deny Cable Service for non-payment of previously provided Cable Services, refusal to pay any required deposit, theft of Cable Service, damage to the Franchisee's equipment, abusive and/or threatening behavior toward the Franchisee's employees or representatives, or refusal to provide credit history information or refusal to allow the Franchisee to validate the identity, credit history and credit worthiness via an external credit agency.
D. Charges for Cable Service will be discontinued at the time of the requested termination of service by the subscriber, except equipment charges may by applied until equipment has been returned. No period of notice prior to requested termination of service can be required of Subscribers by the Franchisee. No charge shall be imposed upon the Subscriber for or related to total disconnection of Cable Service or for any Cable Service delivered after the effective date of the disconnect request, unless there is a delay in returning Franchisee equipment or early termination charges apply pursuant to the Subscriber's service contract. If the Subscriber fails to specify an effective date for disconnection, the Subscriber shall not be responsible for Cable Services received after the day following the date the disconnect request is received by the Franchisee. For purposes of this subsection, the term "disconnect" shall include Subscribers who elect to cease receiving Cable Service from the Franchisee and to receive Cable Service or other multi-channel video service from another Person or entity.
SECTION 10: COMMUNICATIONS WITH SUBSCRIBERS
A. All Franchisee personnel, contractors and subcontractors contacting Subscribers or potential Subscribers outside the office of the Franchisee shall wear a clearly visible identification card bearing their name and photograph. The Franchisee shall make reasonable effort to account for all identification cards at all times. In addition, all Franchisee representatives shall wear appropriate clothing while working at a Subscriber's premises. Every service vehicle of the Franchisee and its contractors or subcontractors shall be clearly identified as such to the public. Specifically, Franchisee vehicles shall have the Franchisee's logo plainly visible. The vehicles of those contractors and subcontractors working for the Franchisee shall have the contractor's/subcontractor's name plus markings (such as a magnetic door sign) indicating they are under contract to the Franchisee.
B. All contact with a Subscriber or potential Subscriber by a Person representing the Franchisee shall be conducted in a courteous manner.
C. The Franchisee shall send annual notices to all Subscribers informing them that any complaints or inquiries not satisfactorily handled by the Franchisee may be referred to the LFA.
D. All notices identified in this Section shall be by either:
(1) A separate document included with a billing statement or included on the portion of the monthly bill that is to be retained by the Subscriber; or
(2) A separate electronic notification
E. The Franchisee shall provide reasonable notice to Subscribers of any pricing changes or additional changes (excluding sales discounts, new products or offers) and, subject to the forgoing, any changes in Cable Services, including channel line-ups. Such notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if within the control of the Franchisee, and the Franchisee shall provide a copy of the notice to the LFA including how and where the notice was given to Subscribers.
F. The Franchisee shall provide information to all Subscribers about each of the following items at the time of installation of Cable Services, annually to all Subscribers, at any time upon request, and, subject to Subsection 10.E., at least thirty (30) days prior to making significantchanges in the information required by this Section if within the control of the Franchisee:
(1) Products and Cable Service offered;
(2) Prices and options for Cable Services and condition of subscription to Cable Services. Prices shall include those for Cable Service options, equipment rentals, program guides, installation, downgrades, late fees and other fees charged by the Franchisee related to Cable Service;
(3) Installation and maintenance policies including, when applicable, information regarding the Subscriber's in-home wiring rights during the period Cable Service is being provided;
(4) Channel positions of Cable Services offered on the Cable System;
(5) Complaint procedures, including the name, address and telephone number of the LFA, but with a notice advising the Subscriber to initially contact the Franchisee about all complaints and questions;
(6) Procedures for requesting Cable Service credit;
(7) The availability of a parental control device;
(8) Franchisee practices and procedures for protecting against invasion of privacy; and
(9) The address and telephone number of the Franchisee's office to which complaints may be reported.
G. A copy of notices required in this Subsection 10.F., will be given to the LFA at least fifteen (15) days prior to distribution to subscribers if the reason for notice is due to a change that is within the control of Franchisee and as soon as possible if not with the control of Franchisee.
H. Notices of changes in rates shall indicate the Cable Service new rates and old rates, if applicable.
I. Notices of changes of Cable Services and/or Channel locations shall include a description of the new Cable Service, the specific Channel location, and the hours of operation of the Cable Service if the Cable Service is only offered on a part-time basis. In addition, should the Channel location, hours of operation, or existence of other Cable Services be affected by the introduction of a new Cable Service, such information must be included in the notice.
J. Every notice of termination of Cable Service shall include the following information:
(1) The name and address of the Subscriber whose account is delinquent;
(2) The amount of the delinquency for all services;
(3) The date by which payment is required in order to avoid termination of Cable Service; and
(4) The telephone number for the Franchisee where the Subscriber can receive additional information about their account and discuss the pending termination.
COMPANY STRUCTURE as of the Effective Date
Verizon Florida Inc. Parent : GTE Corporation 100%
GTE Corporation Parent(s):
Verizon Communications Inc. 95.24%
NYNEX Corporation 4.76% (which is 100% owned by Verizon Communications Inc.)
FORM OF LETTER OF CREDIT
IRREVOCABLE STANDBY LETTER OF CREDIT
Amount: USD $00,000 (00 Thousand Dollars and 00/100 United States Dollars)
Verizon Global Funding Inc
d/b/a (Verizon Subsidiary Inc.)
1095 Avenue of the Americas
New York, NY 10036
We hereby establish this irrevocable standby Letter of Credit No. _________ in your favor, for an aggregate amount not to exceed the amount indicated above, expiring at (Name and address of Bank), at our close of business on ________________.
This Letter of Credit is available with (Name of Bank,) against presentation of your draft at sight drawn on (Name of Bank,) when accompanied by the documents indicated herein.
Beneficiary's dated statement purportedly signed by one of its officials reading as follows:
"The amount of this drawing USD $_____________, under (Name of Bank) Letter of Credit No. ___________ represents funds due us as (Name of Subsidiary, Inc.) has failed to perform its duties pursuant to the Cable Franchise Agreement Between (Beneficiary), and (Name of Verizon Subsidiary), dated __________, 2005."
It is a condition of this Irrevocable Letter of Credit that it shall be automatically extended without amendment for additional one year periods from the present or each future expiration date, unless at least 30 days prior to such date, we send you notice in writing by registered mail return receipt requested or hand delivery at the above address that we elect not to renew this Letter of Credit for such additional period.
Upon such notice to you, you may draw drafts on us at sight for an amount not to exceed the balance remaining in this Letter of Credit within the then applicable expiry date, accompanied by your dated statement purportedly signed by one of your officials reading as follows:
"The amount of this drawing USD $__________ under (Name of Bank) Letter of Credit number _________ represents funds due us as we have received notice from (Name of Bank) of their decision not to extend Letter of Credit Number _________ for an additional year."
All correspondence and any drawings hereunder are to be directed to (NAME AND ADDRESS OF BANK)
We hereby agree with you that drafts drawn under and in compliance with the terms and conditions of this Letter of Credit will be duly honored.
This Letter of Credit is subject to the International Standby Practices (ISP98), International Chamber of Commerce Publication No. 590.
This Letter of Credit shall be governed by, and construed in accordance with, the laws of the New York, without regard to principles of conflict of laws.
Authorized Signature (Bank)
FORM OF GUARANTY
This Guaranty is made on the date set forth below by [NAME OF GUARANTOR] (hereinafter referred to as the "GUARANTOR").
1. Verizon Florida Inc. and the City of Tampa, Florida (the "CITY") have entered into a cable television services franchise agreement (the "Franchise Agreement") dated _______, 2006.
2. The Franchise Agreement, requires GUARANTOR to guaranty the observance, fulfillment and performance of Verizon Florida Inc.'s obligations under the Franchise Agreement under certain circumstances as set forth in Article 11_of the Franchise Agreement.
NOW, THEREFORE, in partial consideration of the CITY's grant of the Franchise Agreement to Verizon Florida Inc. and in addition to other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the GUARANTOR hereby agrees to the following:
1. GUARANTOR guarantees to the CITY the observance, fulfillment and performance by Verizon Florida Inc. of each and every obligation of Verizon Florida Inc. in the Franchise Agreement, except to the extent that any such provision or obligation is unenforceable under applicable law (the "Guaranty").
2. The Guaranty shall continue in full force and effect until the conditions set forth in Section 11.5 of the Franchise Agreement are satisfied. In no event shall the Guaranty extend beyond the original term of the Franchise Agreement.
3. This Guaranty shall be governed by and construed in accordance with the laws of the State of Florida.
4. If any provision of this Guaranty is determined to be illegal, invalid or unconstitutional by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction, then such determination shall have no effect on the validity of any other provision of this Guaranty.
IN WITNESS WHEREOF, the GUARANTOR has caused the Guaranty to be executed by its duly authorized representative on the date set forth below.
LIST OF PEG ORIGINATION LOCATIONS:
1. Office of Cable Communication
City of Tampa Television (City's GATV channel)
202 West 7th Ave.
Tampa, Fl 33602
2. Hillsborough Television (County's GATV channel)
County Center Blvd.
601 E. Kennedy Blvd. 28th Floor
Tampa, FL 33602
3. Tampa Educational Cable Consortium (Educational Access Channel)
703 North Willow Ave.
Tampa, Fl 33606
4. Tampa Bay Community Network (Public access channel)
1001 North B Street
Tampa, Fl 33606