Fort Walton Beach Council agenda — 03-14-06 ‎(regular)‎ — reading text

system, 21 prior to commencing such construction, Cox will furnish an irrevocable performance bond 22 to the City in the amount of one hundred twenty ( 120%) percent of the construction cost to 23 guarantee its faithful performance and completion of such project. A major upgrade or 24 rebuild is defined as upgrades or rebuilds where capital expenditures are in excess of Two 25 Million Dollars ($ 2, 000,000). Upon the City's reasonable determination that the rebuild or 26 upgrade is complete, Cox shall be notified by the City that the bond required under this 27 subparagraph may be released. 28 C. Form. Any letter of credit or performance bond furnished by Cox must be 29 issued by an entity and in a form acceptable to the City. 30 SECTION 22. REGULATION. 31 A. ReQulatorv Authority. The City shall exercise appropriate regulatory 32 authority under the provisions of the Cable Ordinance and this Franchise. Regulation may 33 be exercised though any duly designated City office or established Board or duly 34 Commission. 35 B. Termination. This Franchise can be terminated in accordance with the 36 procedures established in the Cable Ordinance. 37 C. Reserved Riahts. The City hereby specifically reserves the right and 38 authority to regulate all aspects of cable communications systems and services, including 11  1 but not limited to rates, to the fullest extent permitted, from time to time, by federal and 2 state laws and regulations and fully preserves and retains such unless rights expressly 3 waived herein. 4 SECTION 23. REMEDIES. 5 The parties shall have available all remedies set forth in this Franchise, the Cable 6 Ordinance, and as otherwise provided by applicable law. 7 SECTION 24. LIQUIDATED DAMAGES. 8 A. Schedule of Liquidated Damaaes. Because Cox' s failure to comply with 9 provisions of this Franchise and the Cable Ordinance may result in injury to the City or to 10 subscribers, and because it may be difficult to estimate the extent of such injury, the City 11 and Cox hereby agree to the following liquidated damages and represent both parties' 12 best estimate of the damages resulting from the specified injury. For the violation of any of 13 the following provisions of the Cable Ordinance or this Franchise, the shall City notify Cox 14 in writing of the violation and Cox shall be allowed thirty (30) days, or such greater amount 15 of time as the City may specify, to correct such violation. Such undisputed liquidated 16 damages shall be chargeable, to the extent available, to the security fund and 17 performance bond if not tendered by Cox within the aforesaid period of time. These 18 liquidated damages may be assessed in addition to enforcement of other rights provided 19 herein, including termination of this Franchise or other statutorily or judicially imposed 20 remedies. No decision by the City to invoke any remedy under this Franchise, the Cable 21 Ordinance, or any statute, law, or ordinance, shall preclude the availability of any other 22 such remedy: provided, however, that the assessment of liquidated damages by the City 23 shall preclude termination or revocation of this Franchise for a period of thirty ( 30) days 24 following the date on which such assessment begins. The following schedule of liquidated 25 damages shall apply to the following failures by Cox to timely perform its obligations under 26 this Franchise. 27 1. Failure after thirty ( 30) days written notice from the City Manager to the 28 franchisee to provide service in accordance with Section 10, unless the 29 Council specifically approves the delay by motion or resolution; due to 30 occurrence of conditions beyond franchisee' s control, franchisee shall pay 31 up to Two Hundred Fifty Dollars ($ 250.00) per day for each day, or part 32 thereof, the deficiency continues. 33 2. Failure after thirty ( 30) days written notice from the City Manager to the 34 franchisee to provide any documents, data, reports and information to City 35 required by this Franchise, franchisee shall pay up to Fifty Dollars ($ 50.00) 36 per day for each day, or part thereof, the deficiency continues. 37 3. For failure after thirty ( 30) days written notice from the City Manager to the 38 franchisee to provide in a continuing manner the types of services 39 proposed in Section 12; unless the City specifically approves a delay or 40 change, franchisee shall pay to the City up to Two Hundred Fifty Dollars 41 250. 00) per day for each day, or part of thereof, that each noncompliance 42 continues. 12  1 B. City Riahts. The City retains the right, at its sole option, to reduce or waive any 2 of the above- listed liquidated damages where extenuating circumstances or conditions 3 beyond the control of Cox are deemed to exist. The City Manager or his designee shall 4 determine the City' s willingness to reduce or waive any of the above- listed liquidated 5 damages. 6 SECTION 25. COOPERATION. 7 The parties recognize that it is within their mutual best interests for the cable 8 communications system to be operated as efficiently as possible and for the rebuilding of 9 the system to occur in accordance with the requirements and schedule set forth in this 10 Franchise. To achieve this, both parties agree to cooperate with each other in accordance 11 with the terms and provisions of this Franchise. Should either party believe that the other 12 is not acting timely or reasonably within the confines of applicable regulations and 13 procedures in responding to a request for action, that party shall notify the agents 14 designated for that purpose by the other. The agent will use its best effort to facilitate the 15 particular action requested. 16 SECTION 26. WAIVER. 17 The failure of the City at any time to require performance by Cox of any provision 18 hereof shall in no way affect the right of the City thereafter to enforce the same. Nor shall 19 the waiver by the City of any breach of any provision hereof to be taken to be a waiver of 20 any succeeding breach of such provision, or as a waiver of the provision itself. 21 SECTION 27. CUMULATIVE PROVISION. 22 The rights and remedies reserved to the City by this Franchise are cumulative and 23 shall be in addition to and not in derogation of any other rights or remedies which the City 24 may have with respect to the subject matter of the Franchise, and a waiver thereof at any 25 time shall have no effect on the enforcement of such rights or remedies at a future time. 26 SECTION 28. NOTICES. 27 All notices from Cox to the City pursuant to this Franchise shall be sent the City 28 Manager or to such other entity or person as may be designated by the City Manager. 29 Cox shall maintain, through the term of the Franchise, a local telephone number and local 30 office for the conduct of matters related to the Franchise. All notices to Cox shall be sent 31 to that local address. 32 SECTION 29. CAPTIONS. 33 Captions to sections throughout this Franchise are solely to facilitate the reading 34 and reference to the sections and provisions of the Franchise. Such captions shall not 35 affect the meaning or interpretation of the Franchise. 36 SECTION 30. NO JOINT VENTURE. 37 Nothing herein shall be deemed to create a joint venture or principle- agent 38 relationship between the parties, and neither party is authorized to, nor shall either party 13  1 act toward third persons or the public in any manner which would indicate any such 2 relationship with the other. 3 SECTION 31. ENTIRE FRANCHISE. 4 This Franchise and all attachments hereto, and the Cable Ordinance and all 5 attachments thereto, as incorporated herein represent the entire understanding and 6 agreement between the parties hereto with respect to the subject matter hereof, 7 supersede all prior oral negotiations between the parties, and can be amended, 8 supplemented, modified, or changed only as provided in said Cable Ordinance. 9 SECTION 32. SEVERABILITY. 10 If any section, subsection, sentence, clause, phrase, or portion of this Franchise is, 11 for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such 12 portion shall be deemed a separate, distinct, and independent provision and such holding 13 shall not affect the validity of the remaining portions of this Franchise, except as provided 14 for in the Cable Ordinance. 15 SECTION 33. TIME IS OF THE ESSENCE. 16 Whenever the Franchise shall set forth any time for any act to be performed by or 17 on behalf of Cox, such time shall be deemed of the essence and any failure of Cox to 18 perform within the time allotted shall always be sufficient ground for the City to invoke an 19 appropriate penalty including possible revocation of the Franchise. 20 SECTION 34. CONSTRUCTION OF FRANCHISE. 21 This Franchise will be construed in accordance with the law of Florida. This 22 Franchise is the result of negotiations between the parties and it is the parties intent that 23