Verizon Cable Franchise Agreement
Franchise Agreement to provide cable services betweenCity 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 -- PEGSERVICES
SECTION 7 -- COMMUNICATIONS SERVICES TAX
SECTION 8 -- CUSTOMER SERVICE
SECTION 9 -- REPORTS AND RECORDS
SECTION 10-- INSURANCE AND INDEMNIFICATION
SECTION 11-- TRANSFEROF FRANCHISE
SECTION 12-- RENEWAL OFFRANCHISE
SECTION 13 -- ENFORCEMENTAND TERMINATION OF FRANCHISE
SECTION 14-- SECURITYFUND/ LETTER OF CREDIT
SECTION 15-- LIQUIDATEDDAMAGES
SECTION 16-- MISCELLANEOUS PROVISIONS
Exhibit A: Public Buildings to be ProvidedCable 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" (May12, 2006) ashereinafter defined by and between the City of Tampa, Florida, a municipalcorporation established under the applicable laws of the State of Florida (theLocal Franchising Authority or "LFA") and Verizon Florida Inc., acorporation duly organized under the applicable laws of the State of Florida(the "Franchisee").
WHEREAS, pursuant to the Cable Communication Policy Act of1984, the Cable Television Consumer Protection and Competition Act of 1992, andthe Telecommunications Act of 1996, each of which amends the Communications Act(as hereinafter defined), the Congress established procedures and standards inorder to, among other purposes, encourage the growth and development of cablesystems, assure that cable systems are responsive to the needs and interests ofthe local community, assure that Cable Communication provide and are encouragedto provide the widest possible diversity of services to the public, assure thataccess to cable service is not denied to any Person, and restore the right oflocal franchising authorities to regulate cable television rates under certaincircumstances 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 cablefranchise which has been accepted by LFA; and
WHEREAS, the Franchisee has requested permission from the LFA toconstruct, maintain, upgrade and operate the System (as hereinafter defined)over, under and along the public rights-of-way for the use of the LFA'sinhabitants; and
WHEREAS, the public rights-of-way to be used by the Franchiseeare valuable public properties acquired and maintained by the LFA at greatexpense to the LFA's taxpayers, and the rights to use the public rights-of-wayis a valuable property right without which the Franchisee would be required toinvest substantial capital and property acquisition costs; and
WHEREAS, the LFA desires to insure that the public rights-of-wayused by the Franchisee are promptly restored and maintained in a safe and securecondition to protect the health, safety and welfare of the LFA's citizens; and
WHEREAS, the LFA intends to exercise the full scope of itsmunicipal powers, including both its police power and contracting authority, topromote the public interest and to protect the health, safety and welfare of thecitizens of Tampa; and
WHEREAS, the LFA has reviewed the Franchisee's proposal for anonexclusive franchise to operate and maintain a Cable System and to provideCable Service (as hereinafter defined) in the Franchise Area (as hereinafterdefined) as designated in this Franchise; and
WHEREAS, the LFA is a "franchising authority" inaccordance with Title VI of the Communications Act (see 47 U.S.C. §522(10)) andis authorized to grant one or more nonexclusive cable franchises pursuant toFlorida Statutes Section 166.046; and
WHEREAS, Franchisee is in the process of installing a Fiber tothe Premises Telecommunications Network ("FTTP Network") in theFranchise Area for the transmission of Non-Cable Services; and
WHEREAS, the FTTP Network will occupy the Public Rights-of-Waywithin the LFA, and Franchisee desires to use the FTTP Network once installed toprovide Cable Services in the Franchise Area; and
WHEREAS, the LFA has identified the future cable-related needsand interests of the LFA and its citizens, has considered the financial,technical and legal qualifications of Franchisee, has determined thatFranchisee's plans for its Cable System are adequate, and has considered, at aduly noticed public hearing and in accordance with Section 166.046, FloridaStatutes: (a) the economic impact upon private property within the FranchiseArea; (b) the public need for such Franchise, if any; (c) the capacity of PublicRights-of-Way to accommodate the Cable System; (d) the present and future use ofthe Public Rights-of-Way to be used by the Cable System; (e) the potentialdisruption to existing users of the Public Rights-of-Way to be used by the CableSystem and the resultant inconvenience which may occur to the public; (f) thefinancial ability of the Franchisee to perform; (g) other societal interests asare generally considered in cable television franchising; and (h) such otheradditional matters, both procedural and substantive, as the LFA may, in its solediscretion, 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 theapplicable provisions of the Cable Ordinance (as hereinafter defined), the grantof a nonexclusive franchise to Franchisee is consistent with the publicinterest; and
WHEREAS, the LFA and Franchisee have reached agreement on theterms and conditions set forth herein and the parties have agreed to be bound bythose terms and conditions.
NOW, THEREFORE, in consideration of the LFA's grant of thisFranchise 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, thedefinitions and word usages set forth in the Cable Ordinance as of the EffectiveDate of this Agreement are incorporated herein and shall apply in thisAgreement. In addition, the following definitions shall apply:
1.1 Access Channel: A non-commercial video Channel, whichFranchisee shall make available to the LFA without charge for public,educational, or governmental use for the transmission of Video Programming asdirected by the LFA.
1.2 Additional Service Area: Any area in addition to theService Area in which Franchisee is required to make Cable Services available byoperation of Section 3.1.3 of this Franchise.
1.3 Affiliate: Each Person not an Affiliated Parent, whofalls into one or more of the following categories: (i) each Person in which theFranchisee has, directly or indirectly, a Controlling Interest; (ii) eachPerson, directly or indirectly, controlled by, or under common Control of, theFranchisee; (iii) each Person directly or indirectly controlled by, or undercommon Control of an Affiliated Parent, provided that "Affiliate"shall in no event mean the LFA, the entity, if any, administering some or all ofthe Access Channels, any limited partner holding an interest of less thantwenty-five percent (25%) of the Franchisee, or any creditor of the Franchiseesolely by virtue of its status as a creditor and which is not otherwise anAffiliate or Affiliated Parent by reason of owning a Controlling Interest in,being owned by, or being under common ownership, common management, or commonControl with, the Franchisee respectively.
1.4 Affiliated Parent: Each Person, as of the EffectiveDate, having directly or indirectly a Controlling Interest in the Franchisee orany successor to such Person having such a Controlling Interest.
1.5 Basic Service: Any service tier, which includes theretransmission of local television broadcast signals and the Access Channels asrequired 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 definedherein 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 itis 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 pathsand associated signal generation, reception, and control equipment that isdesigned to provide Cable Service which includes video programming and which isprovided to multiple Subscribers within the Franchise Area. The Cable Systemshall not include Telecommunications Facilities or the tangible networkfacilities of a common carrier subject in whole or in part to Title II of theCommunications Act or of an Information Services provider.
1.9 Channel: Shall be defined herein as it is definedunder 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 workingcontrol 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 bepresumed to have actual working control.
1.12 Effective Date: The date upon which this Agreementhas been executed by the Franchisee, approved by the City Council of the LFA andexecuted by the Mayor of the LFA.
1.13 Event of Default: A material violation of theFranchise that is not contested or cured in accordance with Section 13.2.
1.14 FCC: The United States Federal CommunicationsCommission or successor governmental entity thereto.
1.15 FTTP Network: A Fiber to the PremisesTelecommunications Network.
1.16 Force Majeure: An event or events reasonably beyondthe ability of Franchisee to control. This includes, but is not limited to, actsof God, incidences of terrorism, war or riots, labor strikes or civildisturbances, floods, earthquakes, fire, explosions, epidemics, hurricanes,governmental actions and restrictions, work delays caused by waiting for utilityproviders to service or monitor utility poles to which Franchisee's FTTP Networkis attached, and unavailability of materials and/or qualified labor to performthe work necessary.
1.17 Franchise Area: The corporate (territorial) limitsof the LFA existing as of the Effective Date and such additional areas as may beincluded in the corporate (territorial) limits of the LFA during the term ofthis Franchise.
1.18 Franchisee: Verizon Florida Inc., and its lawful andpermitted successors, assigns and transferees.
1.19 Information Services: Shall be defined herein as itis 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 notconstitute Cable Services
1.22 Normal Business Hours: Those hours during which mostsimilar businesses in the community are open to serve customers. In all cases,"normal business hours" must include some evening hours at least onenight per week and/or some weekend hours.
1.23 Normal Operating Conditions: Those serviceconditions which are within the control of the Franchisee. Those conditionswhich are not within the control of the Franchisee include, but are not limitedto, natural disasters, civil disturbances, power outages, telephone networkoutages, and severe or unusual weather conditions. Those conditions which areordinarily within the control of the Franchisee include, but are not limited to,special promotions, pay-per-view events, rate increases, regular peak orseasonal 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 waysor places of whatever nature, including the space above, on, at or below suchrights of way, that are owned by the LFA, publicly held by the LFA, dedicated tothe LFA, or otherwise controlled by the LFA, for public use and presently openedor to be opened for public use, including vehicular and pedestrian movement.
1.27Service Area: The corporate (territorial) limits ofthe LFA existing as of the Effective Date.
1.28 Service Date: The Service Date is the date that theFranchisee first provides Cable Service on a commercial basis directly tomultiple subscribers in the Franchise Area.
1.29 Service Interruption: The loss of picture or soundon one or more cable Channels.
1.30 Subscriber: A Person who lawfully receives CableService of the Cable System with Franchisee's express permission.
1.31 Telecommunications Facilities: Franchisee'sTelecommunications Services and Information Services facilities and its FTTPNetwork facilities.
1.32 Telecommunication Services: Shall be defined hereinas 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:
126.96.36.199 an ownership or other interest in Franchisee istransferred, directly or indirectly, from one Person or group of Persons toanother Person or group of Persons, or the Control of Franchisee is transferred;or
188.8.131.52 the rights held by Franchisee under the Franchise aretransferred or assigned to another Person or group of Persons.
1.35.2 Video Programming: Shall be defined herein as itis 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 andconditions of this Agreement and the Cable Ordinance, the LFA hereby grants theFranchisee the right to own, construct, operate and maintain a Cable Systemalong the Public Rights-of-Way within the Franchise Area, in order to provideCable Service. Nothing herein affects the LFA's privilege or power of eminentdomain.
2.2 LFA Does Not Regulate Telecommunications: The LFA'sregulatory authority under Title VI of the Communications Act and this Agreementis not applicable to the construction, installation, maintenance or operation ofthe Franchisee's FTTP Network to the extent the FTTP Network is constructed,installed, maintained or operated for the purpose of upgrading and/or extendingVerizon's existing Telecommunications Facilities for the provision of Non-CableServices.
2.3 Term: This Agreement will be executed by theFranchisee and delivered to the LFA for review and approval by the City Councilof the LFA. Upon approval by the City Council of the LFA and execution by theMayor, this Agreement will become effective (the "Effective Date").The term of this Franchise shall be fifteen (15) years from the Effective Dateunless the Franchise is earlier revoked as provided herein.
2.4 Grant Not Exclusive: The Franchise and the rights itgrants to use and occupy the Public Rights-of-Way to provide Cable Servicesshall not be exclusive, and the LFA reserves the right to grant other franchisesfor similar uses or for other uses of the Public Rights of- Way, or any portionsthereof, to any Person, or to make any such use itself at any time during theterm of this Franchise. Any such rights which are subsequently granted shall notadversely impact the authority as granted under this Franchise and shall notinterfere with existing facilities of the Cable System or Franchisee's FTTPNetwork provided, however, that the forgoing is not intended to impair (i) theLFA's exercise of its police powers, or (ii) rights it may have to compelrelocation upon order of the LFA, and for which Franchisee may be entitled toappropriate compensation , all of which in accordance with, and to the extentprovided by, applicable law.
2.5 Franchise Subject to Federal Law: Notwithstanding anyprovision to the contrary herein, this Franchise is subject to and shall begoverned by all applicable provisions of federal law as it may be amended,including, but not limited to, the Communications Act; provided, however, thatif a change to federal or state law permits Franchisee to opt out of orterminate this Franchise, Franchisee agrees to honor this Franchise subject toits terms.
2.6 No Waiver:
2.6.1 The failure of the LFA on one or more occasions toexercise a right or to require compliance or performance under this Franchise,the Cable Ordinance or any other applicable law shall not be deemed toconstitute a waiver of such right or a waiver of compliance or performance bythe LFA, nor to excuse Franchisee from complying or performing, unless suchright or such compliance or performance has been specifically waived in writing.
2.6.2 The failure of the Franchisee on one or more occasions toexercise a right under this Franchise Agreement or applicable law, or to requireperformance under this Franchise Agreement, shall not be deemed to constitute awaiver of such right or of performance of this Agreement, nor shall it excusethe LFA from performance, unless such right or performance has been specificallywaived in writing.
2.7 Construction of Agreement:
2.7.1 The provisions of this Franchise Agreement shall beliberally construed to effectuate their objectives. In the event of a conflictbetween the Cable Ordinance and this Agreement, this Agreement shall prevail.
2.7.2 This Agreement shall be construed and interpretedaccording to the ordinary meaning of the words used so as fairly to accomplishthe purposes and intentions of all parties to this Agreement. No party to thisAgreement shall be considered the draftsman, and the drafts of this Agreementshall not be used to interpret the provisions of this Franchise. The partiesacknowledge and agree that this Agreement has been reviewed, negotiated, andaccepted by both parties.
PROVISION OF CABLE SERVICE.
3.1 Service Area:
3.1.1 Service Area: Subject to the other terms of thisAgreement, Franchisee will make Cable Service available to all residential areasand to all business locations (for which the FTTP Network is not subject tounbundling obligations) within the Service Area within five (5) years of theEffective Date, except: (A) for periods of Force Majeure; (B) for periods ofdelay caused by the LFA; (C) for periods of delay caused by Franchisee'sunanticipated inability to obtain timely locates; (D) for periods of delayresulting from Franchisee's inability to obtain authority to access publicrights-of-way in the Service Area; (E) in areas where third parties claim thatdevelopments or buildings are subject to exclusive arrangements with otherproviders; (F) in developments or buildings that Franchisee cannot access underreasonable terms and conditions after good faith negotiation, as determined byFranchisee; (G) in developments or buildings that Franchisee reasonablydetermines that it is unable to provide Cable Service (i) for technical reasonsor (ii) due to the necessity of nonstandard facilities which are not availableon a commercially reasonable basis provided that the LFA concurs that thenon-standard facilities are not available on a commercially reasonable basis;and (H) in areas where the occupied residential household density does not meetthe density requirement set forth in subsection 3.1.2
3.1.2 Density Requirement: Franchisee shall make CableService available to residential dwelling units in all areas of the Service Areain which the average density is equal to or greater than 20 occupied residentialdwelling units per mile as measured in strand footage from the nearesttechnically feasible point on the active FTTP Network trunk or feeder line.Should new construction of residential units within the Service Area meet thedensity requirement after the time stated for providing Cable Service as setforth in subsection 3.1.1, then Franchisee shall provide Cable Service to suchlocations 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, tothe extent that the Franchise Area is expanded beyond the Service Area whetherby annexation, special act or any other lawful means, such area shall beconsidered an Additional Service Area and Franchisee shall make Cable Serviceavailable in such Additional Service Area provided that FTTP facilities havebeen placed in the rights of way of the annexed area and either the videoservice office serving the annexed area is equipped with facilities (e.g.Pre-amp EDFA, distribution EDFA, Big band Equipment, MUX, etc.) to provide CableService to areas other than the annexed area, in which case Verizon shall makeCable Service available within 120 days of Verizon receiving written notice fromLFA that the annexation has occurred; or if Verizon is providing Cable Servicewithin the annexed area at the time of annexation, within 30 days of Verizonreceiving written notice from LFA that the annexation has occurred. LFA shallalso endeavor to provide Verizon written notice of any LFA proceeding before LFACity Council in which City Council will vote on approving such annexation. Anysuch Additional Service Area in which Franchisee is required to make CableServices available by operation of this Section 3.1.3 shall be deemed to beportions of the Service Area for purposes of this Agreement
3.2 Availability of Cable Service: Franchisee shall makeCable Service available within the Service Area in conformance with Section 3.1and Franchisee shall not discriminate between or among any individuals in theavailability of Cable Service. In the areas in which Franchisee shall provideCable Service, Franchisee shall be required to connect, at Franchisee's expense,all residential dwelling units and business units that are not subject tounbundling obligations that are within one hundred twenty five (125) feet oftrunk or feeder lines not otherwise already served by Franchisee's FTTP Network.Franchisee shall be allowed to recover, from a Subscriber that requests suchconnection, actual costs incurred for residential dwelling unit connections thatexceed 125 feet and actual costs incurred to connect any nonresidential dwellingunit Subscriber.
3.3 Cable Service to Public Buildings: Upon request ofthe City and subject to Section 3.1, Franchisee shall provide, without chargewithin the Service Area, one service outlet, together with all associatedequipment necessary for activation, and Basic Service to each fire station,public school, police station, public library, and such other buildings used forgovernmental purposes, located in the Service Area and listed on Exhibit A atsuch time as Franchisee provides Cable Service in the general area in which thebuilding 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 thisSection 3.3. However, if it is necessary to extend Franchisee's trunk or feederlines more than one hundred twenty five (125) feet solely to provide CableService to any such building listed in Exhibit A, then Franchisee must providethe service only if the LFA or governmental entity utilizing such building paysFranchisee's direct costs for such extension in excess of one hundred twentyfive (125) feet. Furthermore, Franchisee shall be permitted to recover, from theentity requesting Cable Service, the direct cost of installing, when requestedto do so, more than one outlet, or concealed inside wiring, or a service outletrequiring more than one hundred twenty five (125) feet of drop cable; provided,however, that Franchisee shall not charge for the provision of Basic Service tothe additional service outlets once installed. Exhibit A may be amended fromtime to time by mutual agreement of the parties. LFA will be permitted to addfive (5) new public buildings per year to Ex. B by providing Franchisee writtennotice of the address of the building and governmental uses thereof. This rightis non-cumulative. Such additional buildings shall be subject to the terms ofthis Article 3. For purposes of this Section 3.3, "year" shall meanthe LFA's fiscal year (October 1-September 30).
The parties recognize that Franchisee's FTTP Network is beingconstructed and will be operated and maintained as an upgrade to and/orextension of its existing Telecommunications Facilities. The parties agree thatthe LFA cannot assert authority pursuant to this Agreement over Franchisee'sFTTP Network, except to the extent such facilities, if any, are used exclusivelyto 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 theFranchise Term, meet or exceed the following requirements:
5.1.2 The System shall be designed with an initial analog anddigital carrier passband between 50 and 860 MHz.
5.1.3 The System shall be designed and constructed to be anactive two way plant utilizing the return bandwidth to permit such services asimpulse pay-per-view and other interactive services. Test and Performancemonitoring under Cable Ordinance Section 7- 110 shall be upon reasonable requestof LFA and only to the extent permitted by then current FCC regulations.
5.2 Interconnection: The Franchisee shall design itsCable System so that it may be interconnected with other cable systems in theFranchise Area. Interconnection of systems may be made by direct cableconnection, 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 maybe distributed over the System.
5.3.2 To the extent the EAS equipment is under the control ofthe LFA, the LFA shall permit only appropriately trained and authorized Personsto operate the EAS equipment and shall take reasonable precautions to preventany use of the Cable System in any manner that results in inappropriate usethereof, or any loss or damage to the Cable System.
6.1 PEG Set Aside:
6.1.1 Subject to the Tampa Cable Communication Ordinance, inorder to ensure universal availability of public, educational and governmentprogramming, Franchisee shall provide, and shall not exceed except as otherwiseprovided in this Franchise, six (6) Access Channels for LFA use as set forth inExhibit B attached hereto and made a part hereof. The LFA reserves the right todesignate the use of the Access Channels among government, educational andpublic access. Franchisee has the right (a) to assign the location of the AccessChannels on its channel lineup (i.e., the channel numbers) at its solediscretion, provided that the Access Channels shall be provided as part of BasicService and (b) to transmit such programming outside the Service Area.
6.1.2 Franchisee will connect the Cable System to theorigination points of the Access Channels identified in the sub-section 6.1.1within 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 writtennotification of such relocation and the Franchisee shall either seekinterconnection with other local cable operator(s) or direct connect to the neworigination point at no additional expense to the LFA; or (ii) outside of theService Area but within Hillsborough County, then the LFA shall provide theFranchisee ninety (90) days prior written notification of such relocation andthe Franchisee shall either seek interconnection with other local cableoperator(s) or