Fort Walton Beach Ordinance — 1702 cable franchise use city Right of Way — reading text

limited to rates, to the fullest extent permitted, from time to time, by federal and state laws and regulations and fully preserves and retains such rights unless expressly waived herein. SECTION 23. REMEDIES. The parties shall have available all remedies set forth in this Franchise, the Cable Ordinance, and as otherwise provided by applicable law. SECTION 24. LIQUIDATED DAMAGES. A. Schedule of Liauidated Damaoes. Because Cox' s failure to comply with provisions of this Franchise and the Cable Ordinance may result in injury to the City or to subscribers, and because it may be difficult to estimate the extent of such injury, the City and Cox hereby agree to the following liquidated damages and represent both parties' best estimate of the damages resulting from the specified injury. For the violation of any of the following provisions of the Cable Ordinance or this Franchise, the City shall notify Cox in writing of the violation and Cox shall be allowed thirty ( 30) days, or such greater amount of time as the City may specify, to correct such violation. Such undisputed liquidated damages shall be chargeable, to the extent available, to the security fund and performance bond if not tendered by Cox within the aforesaid period of time. These liquidated damages may be assessed in addition to enforcement of other rights provided herein, including termination of this Franchise or other statutorily or judicially imposed remedies. No decision by the City to invoke any remedy under this Franchise, the Cable Ordinance, or any statute, law, or ordinance, shall preclude the availability of any other such remedy: provided, however, that the assessment of liquidated damages by the City shall preclude termination or revocation of this Franchise for a period of thirty ( 30) days following the date on which such assessment begins. The following schedule of liquidated damages shall apply to the following failures by Cox to timely perform its obligations under this Franchise. 1. Failure after thirty ( 30) days written notice from the City Manager to the franchisee to provide service in accordance with Section 10, unless the Council specifically approves the delay by motion or resolution; due to occurrence of conditions beyond franchisee' s control, franchisee shall pay up to Two Hundred Fifty Dollars ($ 250. 00) per day for each day, or part thereof, the deficiency continues. 2. Failure after thirty ( 30) days written notice from the City Manager to the franchisee to provide any documents, data, reports and information to City required by this Franchise, franchisee shall pay up to Fifty Dollars ($ 50. 00) per day for each day, or part thereof, the deficiency continues. 3. For failure after thirty ( 30) days written notice from the City Manager to the franchisee to provide in a continuing manner the types of services proposed in Section 12; unless the City specifically approves a delay or change, franchisee shall pay to the City up to Two Hundred Fifty Dollars 250. 00) per day for each day, or part of thereof, that each noncompliance continues. 12  B. City Riahts. The City retains the right, at its sole option, to reduce or waive any of the above- listed liquidated damages where extenuating circumstances or conditions beyond the control of Cox are deemed to exist. The City Manager or his designee shall determine the City's willingness to reduce or waive any of the above- listed liquidated damages. SECTION 25. COOPERATION. The parties recognize that it is within their mutual best interests for the cable communications system to be operated as efficiently as possible and for the rebuilding of the system to occur in accordance with the requirements and schedule set forth in this Franchise. To achieve this, both parties agree to cooperate with each other in accordance with the terms and provisions of this Franchise. Should either party believe that the other is not acting timely or reasonably within the confines of applicable regulations and procedures in responding to a request for action, that party shall notify the agents designated for that purpose by the other. The agent will use its best effort to facilitate the particular action requested. SECTION 26. WAIVER. The failure of the City at any time to require performance by Cox of any provision hereof shall in no way affect the right of the City thereafter to enforce the same. Nor shall the waiver by the City of any breach of any provision hereof to be taken to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself. SECTION 27. CUMULATIVE PROVISION. The rights and remedies reserved to the City by this Franchise are cumulative and shall be in addition to and not in derogation of any other rights or remedies which the City may have with respect to the subject matter of the Franchise, and a waiver thereof at any time shall have no effect on the enforcement of such rights or remedies at a future time. SECTION 28. NOTICES. All notices from Cox to the City pursuant to this Franchise shall be sent the City Manager or to such other entity or person as may be designated by the City Manager. Cox shall maintain, through the term of the Franchise, a local telephone number and local office for the conduct of matters related to the Franchise. All notices to Cox shall be sent to that local address. SECTION 29. CAPTIONS. Captions to sections throughout this Franchise are solely to facilitate the reading and reference to the sections and provisions of the Franchise. Such captions shall not affect the meaning or interpretation of the Franchise. SECTION 30. NO JOINT VENTURE. Nothing herein shall be deemed to create a joint venture or principle-agent relationship between the parties, and neither party is authorized to, nor shall either party 13 act toward third persons or the public in any manner which would indicate any such relationship with the other. SECTION 31. ENTIRE FRANCHISE. This Franchise and all attachments hereto, and the Cable Ordinance and all attachments thereto, as incorporated herein represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, supersede all prior oral negotiations between the parties, and can be amended, supplemented, modified, or changed only as provided in said Cable Ordinance. SECTION 32. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this Franchise is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions of this Franchise, except as provided for in the Cable Ordinance. SECTION 33. TIME IS OF THE ESSENCE. Whenever the Franchise shall set forth any time for any act to be performed by or on behalf of Cox, such time shall be deemed of the essence and any failure of Cox to perform within the time allotted shall always be sufficient ground for the City to invoke an appropriate penalty including possible revocation of the Franchise. SECTION 34. CONSTRUCTION OF FRANCHISE. This Franchise will be construed in accordance with the law of Florida. This Franchise is the result of negotiations between the parties and it is the parties intent that the provisions of this Franchise not be construed against either party as the drafter thereof. SECTION 35. TRANSFER OF FRANCHISE. If Grantee is dissolved or otherwise ceases to exist, ownership and control of the system and all assets of the system, including this franchise, may not be transferred to Cox Communications, Inc. or an affiliate thereof, without the prior written consent of the City which consent shall not be unreasonably withheld. Grantee shall provide the City thirty ( 30) days written notice prior to any such transfer, and the transferee shall become a signatory to this franchise and shall agree to be bound by the terms and conditions of the franchise. SECTION 36. ADDITIONAL SERVICES. A. Information. At the City's request, Grantee shall provide written information on any Advanced Cable Services not being provided in the City of Fort Walton Beach which are being provided on an operational basis in systems operated by Grantee as of the Effective Date of this Agreement. 14  B. Subscriber Surveys. Upon the written request of the City, Cox shall provide the City with copies of its most current subscriber surveys regarding quality of subscriber service. The City will not disclose such survey information to any third party without Cox' s prior written consent. C. Additional Services.If Grantee is providing Advanced Cable Services on an operational basis in any system, and the City desires that such Advanced Cable Services be provided to subscribers in Ft. Walton Beach, City may require Grantee to provide said Advanced Cable Services within one ( 1) year of the City' s written request, provided the following conditions are met: 1. The offering of such Advanced Cable Services is permissible under applicable federal and state laws, ordinances, rules and regulations; 2. Grantee has secured all certificates, licenses, authorizations and approvals from federal and state agencies necessary for the offering of such Advanced Cable Services, provided, however, that the Grantee shall seek to obtain such approvals in a diligent and timely manner; and 3. If Cox' s subscriber surveys referenced in Subsection B above demonstrate that a statistically significant number of subscribers, both within the City of Ft. Walton Beach and the entire NorthWest Florida region, are willing to subscribe to, and to pay a reasonable rate, as determined by the Grantee, for such Advanced Cable Services. D. Exemption. Subsection C notwithstanding, provision of these Advanced Cable Services shall not be required if Grantee can demonstrate that it is uneconomic to do so. 15  PASSED AND ORDAINED BY THE CITY COUNCIL OF THE CITY OF FT. WALTON, BEACH, FLORIDA ON THIS ~ DAY OF ~ , 2006. MIKE ANDERSON, Mayor ATIEf~'l / 1 N The form and legal sufficiency of the foregoing has been reviewed and approved for the use and reliance of the City of Ft. Walton Beach, Florida. g,,~ Su ne Brownless City Franchise Attorney First Reading: t.f-() 0 3-~~ - Ob Second Reading: .... = c: 5057c 16  APPROVAL AND ACCEPTANCE Cox Communications Gulf Coast, L.L.C., by its duly authorized officer, does hereby approve