HomeMy Public PortalAbout2006_06_27_O13The Town of
Leesburg,
Tirginia
ORDINANCE NO. 2006-0-13
AN ORDINANCE:
PRESENTED June 27, 2006
ADOPTED June 27, 2006
GRANTING A CABLE TELEVISION FRANCHISE TO VERIZON
VIRGINIA COMMUNICATIONS, SUBJECT TO CERTAIN
CONDITIONS
WHEREAS, on December 6, 2004, Verizon Virginia Inc. filed an application with the
Town of Leesburg, Virginia seeking a franchise to build and operate a cable television system and
to provide cable service within the Town limits;
WHEREAS, on January 18, January 27, and June 20, 2006 the Leesburg Cable Advisory
Commission ("Commission") held public meetings on Verizon's application, and received
additional input on the matter from electronic mail and other written documents and received
written material from the incumbent cable television franchisee, Adelphia Communications
Corporation (`Adelphia") setting forth its views on Verizon's application; and
WHEREAS, on June 20, 2006, the Commission adopted a resolution recommending
approval of Verizon's franchise application subject to conditions; and
WHEREAS, Council has considered the input from the public, Verizon, and Adelphia
and the input it has received from Town Staff, the Town Attorney, Town's outside counsel, and
the Commission; and
WHEREAS, on June 27, 2006 the Council conducted a public hearing on Verizon's
application after proper public notice; and
WHEREAS, Council had considered each of the factors in Sections 5.1-11 and 5.1-12 of
the Town Code and Virginia Code Section 5.2-2108 in evaluating Verizon's franchise
application; and
WHEREAS, Council has considered the impact of new cable franchise legislation on
their incumbent franchise and any new franchises granted before July 1, 2006; and
AN ORDINANCE:
-2-
GRANTING A CABLE TELEVISION FRANCHISE TO VERIZON
VIRGINIA COMMUNICATIONS, SUBJECT TO CERTAIN
CONDITIONS
WHEREAS, based on that input and those factors, Council has determined that Verizon's
application should be approved, and that Verizon should be granted a cable television franchise.
THEREFORE, ORDAINED by the Council of the Town of Leesburg as follows:
SECTION I. That Council hereby approves the Verizon Franchise application for a cable
television franchise, contingent on Verizon executing the attached agreement (Attachment No. 4)
without changes no later than June 28, 2006.
SECTION II. That, as further condition of such approval, Verizon shall be required to
reimburse the Town for all cost incurred by the Town in the application process within thirty days
of execution by the Town.
SECTION III. The Town Manager is authorized to execute a franchise agreement, which
shall be effective the date of execution.
SECTION IV. That in the event Verizon is unwilling to accept franchise terms and
conditions substantially similar to those set forth in Attachment 4, Verizon's franchise application
shall be deemed to be denied.
SECTION V. This ordinance shall be in effect upon passage.
PASSED this 27`h day of June 2006.
Kristen C. U`mstattd, Mayor
Town of Leesburg
ATTEST:
aleiat
rk of Council
P drive: ordinances 2006: Verizon Franchise Agreement
Cable Franchise Agreement
by and between
Town of Leesburg, Virginia
and
Verizon Virginia Inc.
Approved by the Town of Leesburg Council on June 27, 2006
TABLE OF CONTENTS
ARTICLE PAGE
1. DEFINITIONS 2
2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS 6
3. PROVISION OF CABLE SERVICE 8
4. SYSTEM OPERATION 10
5. SYSTEM FACILITIES 10
6. PEG SERVICES 14
7. FRANCHISE FEES 16
8. CUSTOMER SERVICE 16
9. REPORTS AND RECORDS 17
10. INSURANCE AND INDEMNIFICATION 17
1 1. TRANSFER OF FRANCHISE 20
12. RENEWAL OF FRANCHISE 20
13. ENFORCEMENT AND TERMINATION OF FRANCHISE 21
14. MISCELLANEOUS PROVISIONS 26
EXHIBIT A - SERVICE AREA
EXHIBIT B - TOWN BUILDINGS TO BE PROVIDED FREE CABLE SERVICE
EXHIBIT C - THE TOWN'S PEG CHANNELS
EXHIBIT D - CUSTOMER SERVICE STANDARDS
EXHIBIT E - PERFORMANCE BOND
EXHIBIT F - LETTER OF CREDIT
EXHIBIT G - ACCEPTANCE OF FRANCHISE BY THE FRANCHISEE
THIS CABLE FRANCHISE AGREEMENT (the "Franchise" or "Agreement") is entered
into by and between the Town of Leesburg, Virginia (the "Town") and Verizon Virginia Inc., a
corporation duly organized under the applicable laws of the State of Virginia (the "Franchisee").
WHEREAS, the Town wishes to grant Franchisee a nonexclusive franchise to construct,
install, maintain, extend and operate a cable communications system in the Franchise Area as
designated in this Franchise;
WHEREAS, the Town is a "franchising authority" in accordance with Title VI of the
Communications Act (see 47 U.S.C. §522(10)) and is authorized to gant one or more
nonexclusive cable franchises pursuant to the Code of Virginia, Va. Code Ann. § 15.2-2108 and
Chapter 5.1 of the Code of the Town of Leesburg, Ord. No. 2000-0-03, § II, 10-31-00;
WHEREAS, Franchisee is in the process of installing a Fiber to the Premise
Telecommunications Network ("FTTP Network") in the Franchise Area for the. transmission of
Non -Cable Services pursuant to authority granted by the Commonwealth of Virginia;
WHEREAS, the FTTP Network will occupy the Public Rights -of -Way within the Town,
and Franchisee desires to use portions of the FTTP Network once installed to provide Cable
Services (as hereinafter defined) in the Franchise Area;
WHEREAS, the Town 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;
WHEREAS, the Town Council conducted a public hearing and heard testimony
concerning the economic consideration, the impact on private property rights, the impact on
public convenience, the public need and potential benefit, the Franchisee's financial, technical,
and legal qualifications to provide Cable Service, and other factors relevant to the award of this
Franchise, and the Town Council deems the award of this Franchise to be appropriate;
WHEREAS, the Town Council made a finding that, subject to the terms and conditions
set forth herein and in the Cable Law, the grant of a nonexclusive franchise to Franchisee will
enhance the public welfare; and
WHEREAS, the Town Council found that the terms and conditions of this Franchise are
not more favorable or less burdensome than those in the existing Franchises granted within the
Town;
NOW, THEREFORE, in consideration of the Town Council's grant of a franchise to
Franchisee. Franchisee's promise to provide Cable Service to residents of the Franchise/Service
Area of the Town pursuant to and consistent with the Cable Law, 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 SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
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1. DEFINITIONS
Except as otherwise provided herein, the definitions and word usages set forth in the
Cable Law are incorporated herein and shall apply in this Agreement. In addition, the following
definitions shall apply:
1.1. Affiliate: Any Person who, directly or indirectly, owns or controls, is owned
or controlled by, or is under common ownership or control with, the Franchisee.
1.2. Basic Service: Any service tier, which includes the retransmission of local
television broadcast signals as well as the PEG Channels required by this Franchise.
1.3. Cable Law: Chapter 5.1 of the Code of the Town of Leesburg, Ord. No.
2000-0-03. § II, 10-31-00, to the extent authorized under and consistent with federal and state
law.
1.4. Cable Service or Cable Services: Shall be defined herein as it is detincd
under Section 602 of the Communications Act, 47 U.S.C. § 522(6).
1.5. 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 Service Area, The Cable System shall
be limited to the optical spectrum wavelength(s), bandwidth or future technological capacity that
is used for the transmission of Cable Services directly to Subscribers within the
Franchise/Service Area and shall not include 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.
1.6. Channel: Shall be defined herein as it is defined under Section 602 of the
Communications Act, 47 U.S.C. § 522(4).
1.7.Communications Act: The Communications Act of 1934, as amended.
1.8.Cable Administrator: The present or succeeding employee of the Town
designated as the Community Relations Manager or Cable Television Specialist, or as the
Communications Administrator, who shall have the duties as prescribed by the Town Council.
1.9.Control: The ability to exercise de facto or de jure control over day-to-day
policies and operations or the management of corporate affairs.
1.10. County: Loudoun County, Virginia, or the lawful successor, transferee, or
assignee thereof.
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1.11. Educational Access Channel: Any Channel required by this Agreement to
be provided by the Franchisee to the Town on the Cable System for educational use.
1.12. FCC: The United States Federal Communications Commission, or
successor governmental entity thereto.
1.13. Force Majeure An event or events reasonably beyond the ability of
Franchisee to anticipate and control. This includes, but is not limited to, severe or unusual
weather conditions, strikes, labor disturbances, lockouts, war or act of war (whether an actual
declaration of war is made or not), insurrection, riots, act of public enemy, actions or inactions of
any government instrumentality or public utility including condemnation, accidents for which the
Franchisee is not primarily responsible, fire, flood, or other acts of God, or 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.
1.14. Franchise Area: The territorial boundaries of the Town and any area
added thereto during the Franchise Tcrm, which the Franchisee agrees to serve.
1.15. Franchisee: Verizon Virginia Inc., and its lawful and permitted
successors, assigns and transferees.
1.16. Government Access Channel: Any Channel required by this Agreement to
be provided by the Franchisee to the Town on the Cable System for government use.
1.17. Gross Revenue: Any and all cash, credits, property or consideration of
any kind or nature that constitute revenue in accordance with Generally Accepted Accounting
Principles derived directly or indirectly from the operation of the Cable System to provide Cable
Services in the Franchise Area; provided, however, that any service provided by Franchisee over
the FTTP Network that is a Cable Service shall be considered to be provided over the Cable
System for purposes of this definition. Gross Revenues will be calculated on bundled services in
accordance with Section 7.4. Consistent with the foregoing, the following, without limitation,
shall be included in Gross Revenues to the extent derived from the operation of the Cable System
to provide Cable Services in the Franchise Area: monthly fees collected from Subscribers for
any basic, optional, premium, per -channel, per -program service, or cable programming service;
installation, disconnection, reconnection, and change -in-service fees; revenues from rentals or
sales of converters or other equipment used to provide Cable Service over the Cable System;
studio rental, production equipment rental, and personnel fees; fees from third party unaffiliated
programmers for leased access programming; advertising revenues after deducting agency
commissions; revenues from the sale or carriage of other Cable Services over the Cable System
in the Franchise Area: and revenues that Franchisee receives from home shopping channels for
the use of the Cable System to sell merchandise. However, Gross Revenue shall not include:
1.17.1. Revenues received by any Affiliate or other Person in exchange
for supplying goods or services used by Franchisee to provide Cable Service over the Cable
System;
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1.17.2. Bad debts written off by Franchisee in the normal course of its
business, provided, however, that bad debt recoveries shall be included in Gross Revenue during
the period collected;
1.17.3. Refunds, rebates or discounts made to Subscribers or other third
parties;
1.17.4. Any revenues generated from the provision of Non -Cable
Services as defined herein, including, without limitation, revenue received from
Telecommunications Services; revenue received from Information Services, including, without
limitation, Internet Access service, electronic mail service, electronic bulletin board service, or
similar online computer services; and, any other revenues attributable to the provision of Non -
Cable Services in accordance with FCC or state public utility regulatory commission rules,
regulations, standards or orders;
1.17.5. Any revenue of Franchisee or any other Person which is received
directly from the sale of merchandise through any Cable Service distributed over the Cable
System; provided, however, that the portion of such revenue which represents or can be
attributed to a Subscriber fee or a payment for the use of the Cable System for the sale of such
merchandise shall be included in Gross Revenue;
1.17.6. The sale of Cable Services on the Cable System for resale in
which the purchaser is required to collect cable franchise fees from purchaser's customer;
1.17.7. The sale of Cable Services to customers, which are exempt, as
required or allowed by the Town including, without limitation, the provision of Cable Services to
public institutions as required or permitted herein;
1.17.8. Any taxes, fees, or surcharges on services furnished by the
Franchisee which are imposed directly on any Subscriber or User (but not on Franchisee) by the
City or another governmental unit and which are collected by the Franchisee on behalf of said
governmental unit. Sales/use taxes are such a tax; the cable Franchise fee is not such a tax;
1.17.9. Any foregone revenue which Franchisee chooses not to receive in
exchange for its provision of free or reduced cost cable or other communications services to any
Person, including without limitation, employees of Franchisee and public institutions or other
institutions designated in the Franchise; provided, however, that such foregone revenue which
Franchisee chooses not to receive in exchange for trades, barters, services or other items of value
shall be included in Gross Revenue;
1.17.10. Sales of capital assets or sales of surplus equipment;
1.17.11. Program launch fees;
1.17.12. Directory or Internet advertising revenue including, but not
limited to, yellow page, white page, banner advertisement and electronic publishing;
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1.17.13. Any fees or charges collected from Subscribers or other third
parties for PEG Grant.
1.18. Information Services: Shall be defined herein as it is defined under
Section 3 of the Communications Act, 47 12.S.C. § 153(20); provided, however, that any
reference to Information Services herein shall not include any Cable Services over the Cable
System in the Franchise Area.
1.19. Internet Access: Dial -up or broadband access service that enables
Subscribers to access the Internet; provided, however, that any reference to Internet Access
herein does not include any Cable Services over the Cable System in the Franchise Area.
1.20. Non -Cable Services: Any service that does not constitute a Cable Service
as defined herein, including, but not limited to, Information Services and Telecommunications
Services.
1.21. 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.
1.22. 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 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
rebuild of the Cable System. See 47 C.F.R. § 76.309(c)(4)(ii).
1.23. PEG: Public, Educational, and Governmental.
1.24. Person: An individual, partnership, association, joint stock company,
trust, corporation, or governmental entity, but such term does not include the Town.
1.25. Public Access Channel: Any Channel required by this Agreement to be
provided by the Franchisee to the Town on the Cable System and set aside by the Franchisee for
use by the general public who are residents of the Franchise Area.
1.26. Public Rights -of -Way: The surface and the area across, in, over, along,
upon and below the surface of the public streets, roads, bridges, sidewalks, lanes, courts, ways,
alleys. and boulevards, including, public utility easements and public lands and waterways used
as Public Rights -of -Way, as the same now or may thereafter exist, which are under the
jurisdiction or control of the Town. Public Rights -of -Way do not include the airwaves above a
right-of-way with regard to cellular or other nonwire communications or broadcast services.
1.27. Service Area: The current area of the Town and any additions thereto as
outlined in Exhibit A and any additional service areas added pursuant to this Franchise (see
paragraph 1.16 above for the Franchise Area).
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1.28. Service Date: The date that the Franchisee first provides Cable Service on
a commercial basis directly to multiple Subscribers in the Franchise Area. The Franchisee shall
memorialize the Service Date by notifying the Town in writing of the same, which notification
shall become a part of this Franchise.
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 existing 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. Town: The Town of Leesburg, Virginia, or the lawful successor,
transferee, or assignee thereof.
or successor.
1.36. Town Council: The Town Council of the Town of Leesburg, Virginia.
1.37. Town Manager: The chief executive officer of the Town, of his designee
1.38. Transfer of the Franchise:
1.38.1. Any transaction in which:
1.38.1.1. 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, so that control of Franchisee is transferred; or
1.38.1.2. the rights held by Franchisee under the Franchise
are transferred or assigned to another Person or group of Persons.
1.39. Video Programming: Shall be defined herein as it is defined under
Section 602 of the Communications Act, 47 U.S.C. § 522(20).
2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS
2.1. Grant of Authority: Subject to the terms and conditions of this Agreement
and the Cable Law, the Town Council hereby grants the Franchisee the right to own, construct,
operate and maintain the Cable System in the Public Rights -of -Way within the Franchise Area,
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for the sole purpose of providing Cable Service. This franchise grants no authority for
Franchisee to use the Town's Public Rights -of -Way for any other purpose unless otherwise
expressly provided herein. However, nothing in this Agreement shall be construed to prohibit
Franchisee from offering any service over the Cable System that is not prohibited by Federal or
State law provided any requirements for Town authorization or registration not inconsistent with
federal and state law are satisfied. The Town Council makes no representation or guarantee that
its interest in or right to control any Public Right -of -Way is sufficient to permit Franchisee's use,
and Franchisee shall gain only those rights to use that are within the Town Council's power to
convey. No privilege or power of eminent domain is bestowed by this grant; nor is such a
privilege or power bestowed by this Agreement.
2.2. Town Does Not Regulate Telecommunications: The Town's regulatory
authority under Title VI of the Communications Act 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 thc Franchisee's existing Telecommunications Facilities for the provision of Non -
Cable Services.
2.3. Term: This Franchise shall become effective June 28, 2006 (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 right it grants to use and occupy
thc Public Rights -of -Way to provide Cable Services shall not be exclusive, and the Town
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 themselves, at any time
during the term of this Franchise. Any such rights which are 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.
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.
2.6. No Waiver:
2.6.1. The failure of the Town on one or more occasions to exercise a
right or to require compliance or performance under this Franchise, the Cable Law 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 Town, 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 or applicable law, or to require performance under this Franchise,
shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor
shall it excuse the Town from performance, unless such right or performance has been
specifically waived in writing.
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2.7. Construction of Agreement:
2.7.1. The provisions of this Franchise shall be liberally construed to
effectuate their objectives. In the event of a conflict between the Cable Law and this Agreement,
this Agreement shall prevail.
2.7.2. Nothing herein shall be construed to limit the scope or applicability
of Section 625 Communications Act, 47 U.S.C. § 545.
2.7.3. Should any change to state law have the lawful effect of materially
altering the terms and conditions of this Franchise, then the parties shall modify this Franchise 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, then Franchisee may terminate this Agreement without further obligation to the
Town in the event the Franchisee determines (in its sole discretion) that the change in state law
significantly impairs the Franchisee's ability to provide Cable Service in the Franchise Area 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.
2.8. Police Powers: Nothing in the Franchise shall be construed to prohibit the
exercise of the Town's police powers. However, if the exercise of the Town's police power
results in any material alteration of the terms and conditions of this Franchise, then the parties
shall modify this Franchise 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, then Franchisee may terminate this Agreement
without further obligation to the Town in the event the Franchisee determines (in its sole
discretion) that the Town's exercise of its police power significantly impairs the Franchisee's
ability to provide Cable Service in the Franchise Area 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.
2.9. Acceptance Fee: As additional consideration supporting this Agreement,
Franchisee shall pay to the Town, at the time of tendering the Acceptance attached as Exhibit G,
an acceptance fee of fifteen thousand dollars ($15,000) payable to the "Town of Leesburg" to be
used to offset in whole or in part any direct costs incurred by the Town in granting the Franchise. ,o oS
3. PROVISION OF CABLE SERVICE42 �� S
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3.1. Service Area:,5�
3.1.1. Franchise Area: Franchisee shall offer Cable Service to significant
numbers of Subscribers in residential areas of the Service Area and may make Cable Service
available to businesses in the Service Area, within twelve (12) months of the Effective Date of
this Franchise, and shall offer Cable Service to all residential areas in the Service Area within
three (3) years of the Effective Date of the Franchise, except: (A) for periods of Force Majeure;
(B) for periods of delay caused by the Town; (C) for periods of delay resulting from Franchisee's
inability to obtain authority to access rights -of -way in the Franchise Area; (D) in areas where
developments or buildings are subject to exclusive arrangements with other providers; (E) in
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developments or buildings that Franchisee cannot access under reasonable terms and conditions
after good faith negotiation, as determined by Franchisee; (F) in developments or buildings that
Franchisee is unable to provide Cable Service for technical reasons or which require non-
standard facilities which are not available on a commercially reasonable basis; and (G) in areas
where the occupied residential household density does not meet the density requirement set forth
in Sub -subsection 3.1.1.1.
3.1.1.1. Density Requirement: Franchisee shall make Cable
Services available to residential dwelling units in all areas of the Service Area where the average
density is equal to or greater than thirty (30) 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, through new construction, an area within the Service
Area meet the density requirements after the time stated for providing Cable Service as set forth
in Subsections 3.1.1 and 3.1.2 respectively, Franchisee shall provide Cable Service to such area
within six (6) months of receiving notice from the Town that the density requirements have been
met.
3.1.2. Additional Service Areas: Aside from the Service Area,
Franchisee shall not be required to extend its Cable System or to provide Cable Services to any
other areas within the Franchise Area during the term of this Franchise or any Renewals thereof.
If Franchisee desires to add Additional Service Areas within the Franchise Area, Franchisee shall
notify the Town in writing of such Additional Service Area at least ten (10) days prior to
providing Cable Services in such areas.
3.2. Availability of Cable Service: Franchisee shall make Cable Service available
to all residential dwelling units and may make Cable Service available to businesses in
accordance 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 that are within two hundred (200) 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 two hundred (200) feet and actual costs incurred to connect any non-
residential dwelling unit Subscriber.
3.3. Cable Service to Public Buildings:
3.3.1. Subject to Section 3.1, Franchisee shall provide the following,
without charge within the Service Area, at each fire station, public school, police station, public
library, and such buildings used for public purposes as designated initially by the Town in
Exhibit A and thereafter during the Franchise Term in writing to the Franchisee; provided,
however, that if it is necessary to extend Franchisee's trunk or feeder lines more than three
hundred (300) feet from the serving terminal whichever is less, solely to provide service to any
such school or public building, the Town shall have the option of paying Franchisee's direct
costs for such extension in excess of three hundred (300) feet, or of releasing Franchisee from
the obligation, or postponing Franchisee's obligation to provide service to such building:
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3.3.1.1. The first service drop for each site;
3.3.1.2. One Subscriber digital converter activated for the most
commonly subscribed to digital tier per site;
3.3.1.3. One service outlet activated for the most commonly
subscribed to digital tier. The Parties recognize that this only pertains to the flat rate digital tier
offered by Franchisee and does not include any pay per view services orsimilar services.
3.3.2. The Town shall be responsible for the cost of any "terminal
equipment," including TV monitors, VCRs, and/or computers.
3.3.3. The Franchisee shall be permitted to recover, from any school or
other public building owner entitled to free 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
three hundred (300) feet of drop cable; provided, however, that Franchisee shall not charge for
the provision of Basic Service to the additional service outlets once installed.
3.3.4. The cost of inside wiring, additional drops or outlets and additional
converters requested by the Town within these specified facilities, including those drops or
outlets in excess of those currently installed, are the responsibility of the Town. If the Town
requests the Franchisee to provide such services or equipment, the Town will pay the Franchisee
for those costs.
3.3.5. If the Town makes a request to the Franchisee in writing, the
Franchisee shall rewire public buildings, move drops or entrance links, and make other changes
to installations of inside wiring. The Town will be responsible for the cost of all such work, and
the Town will pay the Franchisee for its direct cost plus ten percent (10%) to offset the
Franchisee's project administration.
3.3.6. If there is a change in the Franchisee's technology that affects the
ability of the Town's public buildings to receive the most commonly subscribed to digital tier,
the Franchisee shall be required to replace, at the Franchisee's expense, all the digital converters
provided to the Town's public buildings as required in subsection 3.3.1.2 in order to ensure that
these public buildings receive the most commonly subscribed to digital tier.
4. SYSTEM OPERATION
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 jurisdiction of the Town over such Telecommunications Facilities is restricted by
federal and state law, and the Town does not assert jurisdiction over Franchisee's FTTP Network
in contravention of those limitations.
5. SYSTEM FACILITIES
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5.1. System Characteristics: Franchisee's Cable System shall tneet or exceed
the following requirements:
5.1.1. Shall make available, at a minimum, one hundred eight (108)
activated Channels of service some of which may be carried on the Franchisee's digital tier;
5.1.2. Shall be designed with an initial analog and digital carrier
passband between 50 and 860 MHz;
5.1.3. Shall be designed to be an active two-way plant for Subscriber
interaction, if any, required for selection or use of Cable Service;
5.1.4. Shall have a modern design when built, utilizing an architecture
that will permit additional improvements necessary for high quality and reliable service
throughout the term of this Franchise. The FTTP Network shall utilize the ITU G.983 Passive
Optical Network standard and have no active elements so as to make it more reliable;
5.1.5. Shall have protection against outages due to power failures, so that
back-up power is available at a minimum for at least twenty-four (24) hours at each headend, and
conforming to industry standards, but in no event rated for less than four (4) hours, at each power
supply site;
5.1.6. Shall comprise facilities and equipment of good and durable
quality, generally used in high -quality, reliable, systems of similar design;
5.1.7. Shall have facilities and equipment sufficient to cure violations of
any applicable FCC technical standards and to ensure that the Cable System remains in
compliance with the standards specified in Subsection 5.1.19;
5.1.8. Shall have facilities and equipment as necessary to maintain,
operate, and evaluate the Cable System to comply with any applicable FCC technical standards,
as such standards may be amended from time to time;
5.1.9. Shall have facilities and equipment designed to be capable of
continuous twenty-four (24) hour daily operation in accordance with applicable FCC standards
except as caused by a Force Majcure event;
5.1.10. Shall have facilities and equipment designed, built and operated in
such a manner as to comply with all applicable FCC requirements regarding (i) consumer
electronic equipment and (ii) interference with thereception of off -the -air signals by a
Subscriber;
5.1.11. Shall have facilities and equipment designed, built and operated in
such a manner as to protect the safety of the Cable System workers and the public;
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5.1.12. Shall have available sufficient trucks, tools, testing equipment,
monitoring devices and other equipment and facilities and trained and skilled personnel required
to enable the Franchisee to substantially comply with applicable law, including applicable
customer service standards and including requirements for responding to System outages;
5.1.13. Shall have all facilities and equipment required to properly test the
Cable System and conduct an ongoing and active program of preventive maintenance and quality
control and to be able to quickly respond to customer complaints and resolve System problems;
5.1.14. Shall be designed to be capable of interconnecting with other cable
systems in the Franchise Area as set forth in Section 5.6 of this Agreement;
5.1.15. Shall (if applicable) have antenna supporting structures (i.e.,
towers) designed in accordance with all applicable state and local building codes, as amended,
and shall be painted, lighted, erected and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration, the FCC, and all other applicable codes and
regulations;
5.1.16. Shall have all facilities and equipment at the headend allowing the
Franchisee to transmit or cablecast signals in substantially the same form received, without
substantial alteration or deterioration. For example, the headend should include equipment that
will transmit color video signals received at, the headend in color, stereo audio signals received at
the headend in stereo, and a signal received with a secondary audio track with both audio tracks.
Similarly, all closed -captioned programming retransmitted over the Cable System shall include
the closed -captioned signal in a manner that renders that signal available to Subscriber
equipment used to decode the captioning;
5.1.17. Shall transmit in high definition any signal, which is received in
high definition format;
5.1.18. Shall provide adequate security provisions in its Subscriber site
equipment to permit parental control over the use of Cable Services on the System. Such
equipment will at a minimum offer as an option that a Person ordering programming must
provide a personal identification number or other means provided by the Franchisee only to a
Subscriber, provided, however, that the Franchisee shall bear no responsibility for the exercise of
parental controls and shall incur no liability for any Subscriber's or viewer's exercise or failure
to exercise such controls;
5.1.19. Shall conform to or exceed all applicable FCC technical
performance standards, as amended from time to time, and any other future applicable technical
performance standards, which the City is permitted by a change in law to enforce, and shall
substantially conform in all material respects to applicable sections of the following standards
and regulations to the extent such standards and regulations remain in effect and are consistent
with accepted industry procedures:
5.1.19.1. Occupational Safety and Health
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Administration (OSHA) Safety and Health Standards;
5.1.19.2. National Electrical Code;
5.1.19.3. National Electrical Safety Code (NESC);
5.1.19.4. Obstruction Marking and Lighting, AC
70/7460 i.e., Federal Aviation Adrninistration;
5.1.19.5. Constructing, Marking and Lighting of
Antenna Structures, Federal Communications Commission Rules, Part 17; and
5.1.19.6. The Uniform Statewide Building Code.
5.1.20. Shall be so constructed and operated that each PEG Channel shall
be delivered over the System with transmission quality the same as or better than the
transmission quality of any other Channel on the Franchisee's Basic Service within the City;
5.1.21. Shall include optional equipment so that any pay -per -view
programming can only be activated by the positive action of a Subscriber using, for example, a
private identification number or other individual selection procedure; and
5.1.22. Shall comply with all requirements of applicable law, including,
but not limited to, the Americans with Disabilities Act. Franchisee shall comply with FCC rules
on transmission of closed captioning for the hearing -impaired. For hearing -impaired
Subscribers, the Franchisee shall provide information concerning the cost and availability of
equipment to facilitate the reception of all basic services for the hearing impaired. In addition,
the Franchisee must provide information (upon request) regarding TDD/TTY (or equivalent)
equipment, and a publicly listed telephone number for such equipment, that will allow hearing
impaired Subscribers to contact the Franchisee.
5.2 Interconnection:
5.2.1. The Franchisee shall design its Cable System so that it may be
interconnected with other cable systems in the Franchise Area at suitable locations as determined
by the Franchisee. Interconnection of systems may be made by direct cable connection,
microwave link, satellite, or other appropriate methods.
5.2.2. At the request of the Communications Administrator, the
Franchisee shall, to the extent permitted by applicable law and its contractual obligations to third
parties, use every reasonable effort to negotiate an interconnection agreement with any other
franchised cable system in the Town for the PEG channels on the Cable System.
of the Cable System.
5.2.3. The Franchisee shall notify the Town prior to any interconnection
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5.2.4. The Franchisee shall in good faith cooperate with the Town in
implementing interconnection of the PEG Cable Service with communications systems beyond
the boundaries of the Town
5.3. Emergency Alert System: Franchisee shall comply with the Emergency Alert
System ("EAS") requirements of the FCC in order that emergency messages may be distributed
over the System.
5.4. Home Wiring: The Franchisee shall comply with all applicable FCC
requirements, including any notice requirements, with respect to home wiring. Prior to a
Subscriber's termination of Cable Service, the Franchisee will not restrict the ability of the
Subscriber to remove, replace, rearrange or maintain any cable wiring located within the interior
space of the Subscriber's dwelling unit, so long as such actions are consistent with FCC
standards. The Franchisee may require a reasonable indemnity and release of liability in favor of
the Franchisee from a Subscriber for wiring that is installed by such Subscriber.
6. PEG SERVICES
6.1 PEG Set Aside:
6.1.1. In order to ensure universal availability of public, educational and
government programming, Franchisee agrees, upon the request of the Town, to provide access
channels for the following:
6.1.1.1. No less than one (1) downstream channel for educational
access to be shared by educational institutions in the County;
6.1.1.2. No less than one (1) dedicated downstream channel solely
for the Town of Leesburg governmental access;
6.1.1.3. No less than one (1) channel shall be provided for
governmental access which can be shared with the County;
6.1.1.4. No less than one (1) channel which will be designated for
public access and local origination used by Franchisee; and,
6.1.1.5. No less than one (1) downstream channel reserved for
future access use exclusively by the Town of Leesburg. Such additional access channel will be
made available to the Town when seventy percent (70%) of prime -time occupancy with original
(non -repeat) programming is demonstrated for six (6) weeks or, alternatively, when and if a
Washington, D.C., metro area -wide Access Channel becomes available. If such Washington,
D.C., metro area -wide Access Channel is to be carried as part of Cable Service in the Town, it
shall be obtained by Franchisee through the same procedures as established under Section 6.2
below and to the extent facilities permit.
6.1.2. Within ten (10) days after the Effective Date of this Agreement,
the Town shall notify Franchisee of the programming to be carried on the Town's PEG Channel.
Such notification shall constitute authorization to Franchisee to transmit such programming
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within and without the Town. Thereafter, the Franchisee shall assign the Town PEG Channel on
its channel line-up as set forth in such notice to the extent such channel assignment does not
interfere with the Franchisee's existing or planned channel line-up.
6.1.4. Within one hundred eighty (180) days of the Effective Date hereof,
Franchisee shall carry the three (3) PEG channels on its Cable system set forth in subsections
6.1.1.1 through 6.1.1.3 hereof. Franchisee may accomplish such carriage in the manner that, in
its reasonable judgment, is most economically feasible, provided that all three (3) PEG Channels
are carried and that the signal quality of such channels on the Cable System is satisfactory and
not inferior to that of other non -PEG channels carried on the Cable System. If Franchisee's PEG
Channel carriage is to be accomplished through interconnection with the largest incumbent cable
franchiseholder's system, the Town shall, to the extent that it can, consistent with the Cable Law
and other applicable law, require the largest incumbent cable franchiseholder to accommodate
any reasonable request by Franchisee to interconnect to the largest incumbent cable
franchiseholder's system for the purpose of carrying the three (3) PEG Channels, provided that
Franchisee shall be responsible for extending its Cable System, at its cost, to the nearest feasible
point of interconnection with the largest incumbent cable franchiseholder's system
("Interconnection Demarcation Point"), and shall be responsible for paying the largest incumbent
cable franchiseholder the reasonable and customary direct costs that the largest incumbent cable
franchiseholder incurs to interconnect Franchisee to the largest incumbent cable
franchiseholder's system at that Interconnection Demarcation Point. Franchisee shall not be
obligated to pay the largest incumbent cable franchiseholder any programming or carriage fees
for any of the PEG channels that it received from the largest incumbent cable franchiseholder's
system. Franchisee shall have the right to request the Town for an extension of the deadline set
forth herein, and the Town shall not unreasonably withhold its consent to such an extension.
6.2. PEG Grant:
6.2.1. Franchisee shall provide grants to the Town to be used for PEG
and institutional network ("I -Net") capital expenses as determined by the Town (the "PEG
Grants").
6.2.2. In support of the Town's needs for PEG programming and an I -
Net, the Franchisee shall provide the Town with an initial advance on the PEG Grants of ten
thousand dollars ($10,000). Thereafter, the PEG Grants shall be equal to the product of (a)
1.7%; times (b) the amount that results from subtracting from Gross Revenues for that quarter
the Franchise Fees paid to the Town for that quarter, with such payments being made to the
Town only after the initial ten thousand dollars ($10,000) is recovered by the Franchisee. The
PEG Grants shall be paid annually. The annual PEG Grants payment, along with a brief
summary of the Subscriber information upon which it is based, shall be delivered to the LFA
within sixty (60) days after the beginning of each calendar year during the Franchise Term.
Calculation of the annual PEG Grants will commence with the first calendar month during which
Franchisee obtains its. first Subscriber in the Service Area.
6.2.3. On request, the Town shall provide Franchisee with a complete
accounting annually of the distribution of funds granted pursuant to this Section 6.2.
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6.3. Town shall require all local producers and users of any of the PEG facilities
or Channels to agree in writing to authorize Franchisee to transmit programming consistent with
this Agreement and to defend and hold harmless Franchisee and the Town, from and against any
and all liability or other injury, including the reasonable cost of defending claims or Iitigation,
arising from or in connection with claims for failure to comply with applicable federal laws,
rules, regulations or other requirements of local, state or federal authorities; for claims of libel,
slander, invasion of privacy, or the infringement of common law or statutory copyright; for
unauthorized use of any trademark, trade name or service mark; for breach of contractual or
other obligations owing to third parties by the producer or user; and for any other injury or
damage in law or equity, which result from the use of a PEG facility or Channel.
6.4. To the extent permitted by federal law, the Franchisee shall be allowed to
recover the costs of an Annual PEG Grant or any other costs arising from the provision of PEG
services from Subscribers and to include such costs as a separately billed line item on each
Subscriber's bill. Without limiting the forgoing, to the extent consistent with state and federal
laws, Franchisee may externalize, line -item, or otherwise pass -through interconnection costs to
Subscribers.
7. FRANCHISE FEES
7.1. Payment to Town: The Franchisee shall pay to the Town a Franchise fee of
five percent (5%) of annual Gross Revenue. In accordance with Title VI of the Communications
Act, the twelve (I2) month period applicable under the Franchise for the computation of the
Franchise fee shall be a calendar year. Such payments shall be made no later than forty five (45)
days following the end of each calendar quarter. In the event the Franchisee is unable to
compute the Franchisee fee payment within the foregoing time frame, the Franchisee may make
an estimated Franchise fee payment based on the payment for the previous quarter. Estimated
payments must be trued up within thirty (30) days after the date of the estimated payment.
7.2. Supporting information: Each Franchise fee payment shall be accompanied
by a brief report prepared by a representative of Franchisee showing the basis for the
computation.
7.3. Limitation on Franchise Fee Actions': The period of limitation for recovery
of any Franchise fee payable hereunder shall be three (3) years from the date on which payment
by Franchisee is due.
7.4. Bundled Services: If Cable Services subject to the Franchise fee required
under this Article 7 are provided to Subscribers in conjunction with Non -Cable Services, the
Franchise fee shall be applied only to the value of the Cable Services, as reflected on the books
and records of Franchisee in accordance with FCC or state public utility regulatory commission
rules, regulations, standards or orders.
8. CUSTOMER SERVICE
Customer Service Requirements are set forth in Exhibit D, which shall be binding unless
amended by written consent of the parties.
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9. REPORTS. JD RECORDS
9.1. Open Books and Records: Upon reasonable written notice to the Franchisee
and with no less than thirty (30) business days written notice to the Franchisee, the Town 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
nondisruptive basis, as are reasonably necessary to ensure compliance with the terms of this
Franchise. Such notice shall specifically reference the section or subsection of the Franchise,
which is under review, so that Franchisee may organize the necessary books and records for
appropriate access by the Town. Franchisee shall not be required to maintain any books and
records for Franchise compliance purposes longer than three (3) years. Notwithstanding
anything to the contrary set forth herein, Franchisee shall not be required to disclose information
that it reasonably deems to be proprietary or confidential in nature (except that Franchisee shall
make available to the Town all information reasonably necessary for the Town to conduct an
audit of the Franchise fee payments and the parties shall cooperate to take all lawful actions and
audit procedure steps to protect the confidentiality of such information to the fullest extent
possible), nor disclose any of its or an Affiliate's books and records not relating to the provision
of Cable Service in the Service Area. To the extent permitted by applicable Iaw, the Town
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.
9.2. Records Required: Franchisee shall at all times maintain:
9.2.1. 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;
9.2.2. 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;
9.2.3. 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;
9.2.4. 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
9.2.5. A public file showing the area of coverage for the provisioning of
Cable Services and estimated timetable to commence providing Cable Service.
10. INSURANCE AND INDEMNIFICATION
10.1. Insurance:
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10.1.1. Franchisee shall maintain in full force and effect, at its own cost
and expense, throughout the entire Franchise Term, the following insurance coverage:
10.1.1.1. Commercial General Liability Insurance insuring the
Town and the Franchisee with respect to the construction, operation and maintenance of the
Cable System, and the conduct of the Cable Service business in the Town in the minimum
amounts of $2,000,000 per occurrence; $2,000,000 aggregate for cach occurrence. Such
commercial general liability insurance must include coverage for all of the following:
comprehensive form, premises -operations, explosion and collapse hazard, underground hazard,
products/completed operations hazard, contractual insurance, broad form property damage, and
personal injury.
10.1.2. All insurance policies and certificates maintained pursuant to this
Agreement shall provide the following:
"It is hereby understood and agreed that this insurance coverage may not
be canceled by the insurance company nor the intention not to renew be
stated by the insurance company until at least 30 days after receipt by the
Town's Secretary or clerk of a written notice of such intention to cancel or
not to renew."
10.1.3. Each of the required insurance policies shall be with insurers
qualified to do business in the Commonwealth of Virginia, with an A- Pi or better rating by
Best's Key Rating Guide, Property/Casualty Edition.
10.1.4. Upon written request, Franchisee shall deliver to the Town
Certificates of Insurance showing evidence of the required coverage.
10.1.5. All Commercial General Liability Insurance policies shall name
the Town, its elected and appointed officials, officers, boards, commissions, commissioners,
agents, and employees as additional insureds.
10.2. Indemni f cation:
10.2.1. Subject to the provisions below, the Franchisee shall, at its sole
cost and expense, indemnify, hold harmless, and defend the Town, its elected and appointed
officials, officers, boards, commissions, commissioners, agents, and employees, against any and
all claims, suits, causes of action, proceedings, and judgments, whether for damages or otherwise
arising out of or alleged to arise out of the installation, construction, operation, or maintenance of
the Cable System, including but not limited to any claim against the Franchisee for invasion of
the right of privacy, defamation of any Person, firm or corporation, or the violation or
infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other
intellectual property right of any Person, firm, or corporation.
10.2.2. This indemnity does not apply to programming carried on any
Channel set aside for PEG use, or Channels leased pursuant to 47 U.S.C. § 532, or to operations
of the PEG Channels to the extent such operations are carried out by a person other than the
Franchisee or its agents. Further, the Franchisee shall not be required to indemnify the Town for
18
acts of the Town which constitute willful misconduct or negligence, on the part of the Town, its
officers, employees, agents, attorneys, consultants, independent contractors or third parties or for
any activity or function conducted by any Person other than Franchisee in connection with PEG
Access, or EAS.
10.2.3. In no event shall the Franchisee be responsible for indemnifying
the Town under Section 10.2 for any act or omission by the Franchisee that has been specifically
approved by the Town, or for any act or omission by the Town or its elected and appointed
officers, boards, commissions, commissioners, agents, or employees that results in personal
injury or property damage.
10.2.4. The Town shall give the Franchisee written notice of its obligation
to indemnify the Town under Section 10.2 within thirty (30) days of receipt of a claim, suit,
cause of action, or proceeding for which the Franchisee is obligated to indemnify the Town. The
Town shall take action necessary to avoid entry of a default judgment if such action is needed
before the Town provides the Franchisee notice; provided, however, that no such action shall in
anyway prejudice or harm the Franchisee.
10.2.5. With respect to Franchisee's indemnity obligations set forth in
Section 10.2, Franchisee shall provide the defense of any claims, suits, causes of action, or
proceedings brought against the Town by selecting counsel of Franchisee's choice to defend the
claim, subject to the consent of the Town, which shall not unreasonably be withheld. Nothing
herein shall be deemed to prevent the Town 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 Town, Franchisee shall have the right to
defend, settle or compromise any claim, suit, cause of action, or proceeding arising hereunder, so
long as the settlement includes a full release of the Town, and Franchisee shall have the authority
to decide the appropriateness and the amount of any such settlement. In the event that the Town
does not consent to the terms of any such settlement or compromise, Franchisee shall not settle
the claim or action but its obligation to indemnify the Town shall in no event exceed the amount
of such settlement. In the event that Franchisee fails, after notice pursuant to subsection 10.2.4,
to undertake the Town's defense of any claims encompassed within this Section 10.2,
Franchisee's indemnification shall include, but is not limited to, the Town's reasonable attorneys'
fees, including fees for outside counsel hired to defend the Town, incurred in defending against
any such claim, suit, cause of action, or proceeding, any interest charges arising from any claim,
suit, cause of action, or proceeding arising under this Agreement or the Cable Law, the Town's
out-of-pocket expenses, and the reasonable value of any services rendered by the Town
Attorney, or the Town staff or its employees.
10.2.6. Neither the provisions of this Section nor any damages recovered
by the Town shall be construed to limit the liability of the Franchisee or its subcontractors for
damages under the Agreement or the Cable Law or to excuse the faithful performance of
obligations required by the Agreement, except to the extent that any monetary damages suffered
by the Town have been satisfied by a financial recovery under this section or other provisions of
the Agreement or the Cable Law.
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10.2.7. The Town shall at no time be liable for any injury or damage
occurring to any Person or property from any acts or omissions of Franchisee in the construction,.
maintenance, use, operation or condition of the Cable System. It is a condition of this
Agreement that the Town shall not and does not by reason of this Agreement assume any
liability whatsoever of the Franchisee for injury to Persons or damage to property; provided,
however, that the Town shall be responsible for its own acts of willful misconduct or negligence,
or breach of obligation committed by the Town for which the Town is legally responsible,
subject to any and all defenses and limitations of liability provided by law.
11. TRANSFER OF FRANCHISE
11.1. Subject to Section 617 of the Communications Act, 47 U.S.C. § 537, no
Transfer of the Franchise shall occur without the prior consent of the Town, provided that such
consent shall not be unreasonably withheld, delayed or conditioned.
11.2. No Consent Required For Transfers Securing Indebtedness: The
Franchisee shall not be required to obtain the consent or approval of the Town for a transfer in
trust, by mortgage, 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. However, upon
request by the Town, the Franchisee shall provide the Town with the Franchisee's audited
financial statements prepared for the Franchisee's bondholders in order to notify the Town if
there is a mortgage or security interest granted on substantially all of the assets of the Cable
System.
11.3. No Consent Required For Any Affiliate Transfers: The Franchisee shall
not be required obtain the consent or approval of the Town for any transfer of an ownership or
other interest in Franchisee, the Cable System, or the Cable System assets to the parent of
Franchisee or to another Affiliate of Franchisee; transfer of an interest in the Franchise or the
rights held by the Franchisee under the Franchise to the parent of Franchisee or to another
Affiliate of Franchisee; any action which is the result of a merger of the parent of the Franchisee;
or any action which is the result of a merger of another Affiliate of the Franchisee. However, the
Franchisee will notify the Town within thirty (30) days if at any time a transfer of the Franchise
or the Franchisee's assets to an Affiliate occurs, and any such Affiliate shall agree in writing to
assume and be bound by the term of this Agreement.
12. RENEWAL OF FRANCHISE
12.1. The Town and Franchisee agree that any proceedings undertaken by the
Town 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. Notwithstanding anything to the contrary set forth herein, Franchisee and
the Town agree that at any time during the term of the then current Franchise, while affording the
public appropriate notice and opportunity to comment, the Town and Franchisee may agree to
undertake and finalize informal negotiations regarding renewal of the then current Franchise and
the Town may grant a renewal thereof.
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12.3. Franchisee and the Town consider the terms set forth in this Article 12 to
be consistent with the express provisions of Section 626.
13. ENFORCEMENT AND TERMINATION OF FRANCHISE
13.1. Notice of Violation: In the event that the Town believes that Franchisee
has not complied with the terms of the Franchise, the Town shall informally discuss the matter
with Franchisee. If these discussions do not lead to resolution of the problem, the Town shall
notify Franchisee in writing of the exact nature of the alleged noncompliance.
13.2. Franchisee's Right to Cure or Respond: Franchisee shall have thirty (30)
days from receipt of the written notice described in Section 13.1 to: (i) respond to the Town, if
Franchisee contests (in whole or in part) the assertion of noncompliance; (ii) cure such default;
or (iii) in the event that, by the nature of default, such default cannot be cured within the thirty
(30) day period, initiate reasonable steps to remedy such default and notify the Town of the steps
being taken and the projected date that they will be completed.
13.3. Public Hearing: In the event that Franchisee fails to respond to the
written notice described in Section 13.1 pursuant to the procedures set forth in Section 13.2, or in
the event that the alleged default is not remedied within thirty (30) days or the date projected
pursuant to Section 13.2(iii) above, if it intends to continue its investigation into the default, then
the Town shall schedule a public hearing. The Town shall provide Franchisee at least thirty (30)
business days prior written notice of such hearing, which will specify the time, place and purpose
of such hearing, and provide Franchisee the opportunity to be heard.
13.4. Enforcement: Subject to applicable federal and state law, in the event the
Town, after the hearing set forth in Section 13.3, determines that Franchisee is in default of any
provision of the Franchise, the Town may:
13.4.1. Seek specific performance of any provision, which reasonably
lends itself to such remedy, as an altemative to damages; or
13.4.2. Commence an action at law for monetary damages or seek other
equitable relief; or
13.4.3. In the case of a substantial material default of a material provision
of the Franchise, seek to revoke the Franchise in accordance with Section 13.5.
13.5. Revocation: Should the Town seek to revoke the Franchise after
following the procedures set forth in Sections 13.1 through 13.4 above, the Town 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 Town has not received a satisfactory
response from Franchisee, the Town may then seek termination of the Franchise at a public
hearing. The Town shall cause to be served upon the Franchisee, at least thirty (30) days prior to
such public hearing, a written notice specifying the time and place of such hearing and stating its
intent to revoke the Franchise.
21
13.5.1. At the designated hearing, 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 Town, 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.
13.5.2. Following the public hearing, Franchisee shall be provided up to
thirty (30) days to submit its proposed findings and conclusions in writing and thereafter the
Town 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 Town shall also 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 Town determines that the Franchise shall be revoked, the Town shall promptly
provide Franchisee with a written decision setting forth its reasoning. Franchisee may appeal
such determination of the Town to an appropriate court, which shall have the power to review
the decision of the Town de novo. 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 franchising authority.
13.5.3. The Town may, at its sole discretion, take any lawful action which
it deems appropriate to enforce the Town's rights under the Franchise in lieu of revocation of the
Fran chi se.
13.6. Franchisee Termination: Franchisee shall have the right to terminate this
Franchise and all obligations hereunder within ninety (90) days after the end of three (3) years
from the Service Date of this Franchise, if at the end of such three (3) year period Franchisee has
less than twenty five percent (25%) market penetration of the homes passed in the Franchisee's
total cable service area in the Washington D.C. Designated Market Area. Notice to terminate
under this Section shall be given to the Town in writing,with such termination to take effect no
sooner than one hundred and twenty (120) days after giving such notice. Franchisee shall also be
required to give its then current Subscribers not less than ninety (90) days prior written notice of
its intent to cease Cable Service operations.
13.7. Performance Bond: Prior to the Service Date, the Franchisee shall provide
to the Town security for the performance of its obligations under this agreement in the amount of
one hundred thousand dollars ($ 1 00,000), in substantially the same form attached hereto as
Exhibit E, in order to ensure the Franchisee's faithful performance of its obligations under this
Agreement. The Town may not attempt to collect under this bond unless thirty (30) days have
passed since the Town provided the Franchisee with written notice of its intent to collect under
this bond. if within this thirty (30) day time frame, Franchisee gives written notice it disputes
entitlement to payments from Franchisee for which it has refused to make payment, the parties
shall promptly meet to attempt to resolve the dispute in good faith amongst themselves.
13.7.1. The form of this security may, at Franchisee's option, be a
performance bond, letter of credit, cash deposit, cashier's check or any other security acceptable
to the Town.
22
13.7.2. In the event that a performance bond provided pursuant to the
Agreement is not renewed or is cancelled, Franchisee shall provide new security pursuant to this
Article with 30 days of such cancellation or failure to renew.
13.7.3. Neither cancellation, nor termination nor refusal by surety to
extend the bond, nor inability of the Franchisee to file a replacement bond or replacement
security for its obligations, shall constitute a loss to the Town recoverable under the bond.
13.7,4. There shall be recoverable by the Town from the principal and
surety, any and all amounts due to the Town and any and all damages, Losses, costs, and
expenses incurred by the Town resulting from the failure of the Franchisee to comply with the
material provisions of this Agreement, to comply with all orders, permits and directives of any
Town agency or body having jurisdiction over its acts or defaults, to pay fees, penalties or
liquidated damages due to the Town, or to pay any claims, taxes or liens due to the Town. Such
losses, costs and expenses shall include but not be limited to reasonable attorney's fees and other
associated expenses.
13.7.5. The total amount of the performance bond required by this
Agreement shall be forfeited in favor of the Town in the event:
13.7.5.1. the Franchisee abandons the Cable System at any
time during the Franchise Term or any extension thereto; or
13.7.5.2. the Franchisee carries out a transfer requiring Town
approval as stated in Article 11 of this Agreement without obtaining Town approval.
13.7.6. The Franchisee shall not permit the performance bond to expire or
approach less than thirty (30) days prior to expiration without securing and delivering to the
Town a substitute, renewal or replacement bond in conformance with the provisions of this
Agreement.
13.7.7. Reduction of Bond: The Town may approve a reduction in the
amount of the bond upon written application by the Franchisee, which approval shall not be
unreasonably withheld. The amount of the bond may be reduced to $50,000.00 when the Cable
System has been extended to more than fifty percent (50%) of the occupied dwelling units within
the Franchise Area, as certified by the Franchisee to the Town, and may be further reduced to the
sum of $25,000.00 when the Cable System has been extended to more than ninety percent (90%)
of the occupied dwelling units within the Franchise Area, as certified by the Franchisee to the
Town. Reductions granted or denied upon application by the Franchisee shall be without
prejudice to the Franchisee's subsequent applications or to the Town's right to require the full
bond at any time thereafter. Further, in the event the Town approves a reduction of the
Franchisee's performance bond, the Town may, at any time, increase the amount of the
performance bond to reflect any increased risks to the Town and the public and/or require the
Franchisee to provide additional sureties to any and all bonds or to replace existing bonds with
new bonds that satisfy the criteria in this Article; provided, however, that any such performance
bonds or additional sureties shall not exceed one hundred thousand dollars ($100,000). The
23
Town shall provide the Franchisee written notice of at least sixty (60) days in advance of any
such increase in the performance bond resulting from this subsection.
13.8. Letter of Credit:
13.8.1. In addition to the performance bond, the Franchisee shall provide
to the Town a letter of credit in the amount of ten thousand dollars ($10,000) (the "Letter of
Credit"), in substantially the same form as that attached hereto as Exhibit F. The Letter of Credit
shall be provided by a third party agent ("Third Party Agent") approved by the Town. The
Franchisee shall maintain such Letter of Credit at all times throughout the term of the
Agreement.
13.8.2. If the Town notifies the Franchisee of any amounts due to the
Town pursuant to this Agreement or applicable law, and the Franchisee does not make such
payment within thirty (30) days, the Town may withdraw the amount in question, with any
applicable interest and penalties, from the Letter of Credit by notice to the Franchisee and the
Third Party Agent specifying the amount and purpose of such withdrawal. However, if within
this thirty (30) day time frame, Franchisee gives written notice it disputes entitlement to
payments from Franchisee for which it has refused to make payment, the parties shall promptly
meet to attempt to resolve the dispute in good faith amongst themselves.
13.8.3. If at the time of a withdrawal from the Letter of Credit by the
Town, the amount available with the Third Party Agent is insufficient to provide the total
payment of the claim asserted in the Town's notice of withdrawal, the balance of such claim
shall not be discharged or waived, but the Town may continue to assert the same as an obligation
of the Franchisee to the Town.
13.8.4. No later than thirty (30) days after mailing of notification to the
Franchisee by certified mail, return receipt requested, of a withdrawal under the Letter of Credit,
the Franchisee shall restore the amount of the Letter of Credit to ten thousand dollars ($10,000).
13.8.5. In the event the Third Party Agent serves notice to the Town that it
elects not to renew the Letter of Credit, the Town may withdraw the entire amount of the Letter
of Credit unless the Franchisee provides a substitute Letter of Credit, in substantially the same
form as that attached hereto as Exhibit F, from a Third Party Agent approved by the Town,
before the effective Letter of Credit expires.
13.9. Liquidated Damages:
13.9.1. Because the Franchisee's failure to comply with provisions of this
Agreement will result in injury to the Town, and because it will be difficult to estimate the extent
of such injury, the Town and the Franchisee agree to the liquidated damages provided for in this
Section, with such liquidated damages representing both parties' best estimate of the damages
resulting from the specified violations. Such damages shall not be a substitute for actual
performance by the Franchisee of a financial payment, but shall be in addition to any such actual
24
performance. The failure of a Franchisee to hire sufficient staff or to properly train its staff shall
not preclude the application of the provisions in this Section.
13.9.2. The Communications Administrator, or designee, shall have the
authority to waive or reduce the liquidated damage amounts herein for good cause.
13.9.3. Cure periods listed below shall begin to run at the time the
Franchisee is notified in writing of a violation by the Town, unless otherwise specified below.
Should the Town elect to receive liquidated damages for any of the violations enumerated herein,
such liquidated damages shall be the Town's sole remedy for the violations occurring during the
period of time to which the liquidated damages apply.
13.9.4. On an annual basis from the Effective Date, the Franchisee shall
not be Iiable for liquidated damages that exceed ten thousand ($ 1 0,000) (the "Liquidated
Damages Cap"). The liquidated damages shall be assessed in the following manner:
13.9.4.1. For each day during which the Town determines
that the Franchisee has violated customer service standards pursuant to Exhibit E, except for
those standards set forth in Subsection 13.9.4.2 below: $200 per violation, treating each failure
to comply as a separate violation, following a seven (7) day cure period, except that such cure
period does not apply to customer service standards that themselves provide a time to act or a
specific cure period;
13.9.4.1.1. a separate violation under Subsection
13.9.4.1 shall be deemed to occur whenever the Town reasonably determines that a separate
customer service standard violation has occurred on one day. Thus, for example, if the
Franchisee fails to provide Cable Service to one subscriber for two days pursuant to Exhibit D,
there would be two violations; if the Franchisee fails to keep an appointment pursuant to Exhibit
D with one Subscriber on one day and on that same day, independent of the missed appointment,
the Franchisee fails to disclose price terms to that same Subscriber, then there would be two
violations. However, the Franchisee shall not be charged with multiple violations for a single act
or event affecting a single Subscriber or for a single act or event affecting multiple Subscribers
on the same day. For example, the failure of the Franchisee to send out its annual notice to
multiple Subscribers would constitute a single violation.
13.9.4.2. For failure to meet customer service standards with
regard to telephone answering time, time to transfer a call to a customer service representative,
or excessive busy signals: if such standards are not met according to the terms in which such
standards are established in Exhibit D: $100 for each quarter in which such standards were not
met if the failure was by less than 5%; $200 for each quarter in which such standards were not
met if the failure was by 5% or more but less than 15%; and $300 for each quarter in which such
standards were not met if the failure was by 15% or more;
13.9.4.3. For failure to pay any Franchisee Fees pursuant to
Article 7 or PEG Grants pursuant to Section 6.2: $100 per day after a seven day cure period;
25
13.9.4.4. For failure to file, obtain or maintain the required
performance bond or letter of credit pursuant to Sections 13.7 and 13.8 in a timely fashion: $200
per day, following a fourteen (14) day cure period; and
13.9.4.5. For violation of applicable technical standards
established by the FCC or other lawful authority: $100 per day for each day the violation
continues after a thirty (30) day cure period.
14. MISCELLANEOUS PROVISIONS
14.1. Actions of Parties: In any action by the Town 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.
14.2. 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.
14.3. 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 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 Town.
14.3.1. If, subsequent to the Effective Date, there is a change in federal
law or state law that eliminates the authority of local governments to require or grant cable
television franchises for the provision of Cable Service, then to the extent permitted by law this
Franchise shall survive such legislation and remain in effect for the term of this Franchise.
14.4. 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 allegeddefaults occurred or
were caused by a Force Majeure.
14.5. 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.
14.5.1. Notices to Franchisee shall be mailed to:
Robert W. Woltz, Jr.
President
26
600 E. Main Street
Suite 1100
Richmond, VA 23219
I4.5.2. with a copy to:
Mr. Jack White
Senior Vice President and General Counsel
Verizon Telecom
One Verizon Way
Room VC43E010
Basking Ridge, NJ 07920-1097
14.5.3. Notices to the Town shall be mailed to:
Cable Administrator
Town of Leesburg, Virginia
25 West Market Street
Leesburg, Virginia 20178
14.6. Entire Agreement: This Franchise and the Exhibits hereto constitute the
entire agreement between Franchisee and the Town, and it supersedes all prior or
contemporaneous agreements, representations or understanding of the parties regarding the
subject matter hereof.
14.7. Amendments: Amendments to this Franchise shall be mutually agreed to
in writing by the parties.
14.8. Captions; The captions and headings of articles and 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.
14.9. 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.
14.10. 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.
14.11. Franchisees FTTP Network: The Town and the Franchisee recognize and
agree that certain provisions of the Cable Law are not applicable to the Franchisee, including, but
not limited to the following sections; 5.1-17(c) -- 5.1-17(g); 5.1-18(2)-(3); 5.1-20 — 5.1-22; 5.1-
24; 5.1-26; 5.1-32; 5.1-33; 5.1-35; 5.1-40; and, 5.1-41.
27
14.12. Modification: This Franchise shall not be modified except by written
instrument executed by both parties.
14.13. FTTP Network Transfer Prohibition: Provided that and for so long as
Franchisee retains its right under applicable law to use the Public Rights -of -Way to provide
Telecommunications Services, under no circumstances including without limitation, upon
expiration, revocation, termination, or denial of renewal of the Franchise or any action to forbid
or disallow Franchisee from providing Cable Services, 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 capacity on that network that has been or could be
used to provide Cable Service or otherwise, to the Town or any third party. Provided that and for
so long as Franchisee retains its right under applicable law to use the Public Rights -of -Way to
provide Telecommunications Services, 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. However, the foregoing FTTP Network Transfer Prohibition shall be ineffective if for
any reason in the future the Franchise ceases to provide Telecommunication Services over its
FTTP Network and the Franchisee lacks the authority to use the Public Rights -of -Way to provide
any such Telecommunications Services. This provision is not intended to contravene leased
access requirements under Title VI or PEG requirements set out in this Agreement.
14.14. Town and Franchisee each acknowledge that they have received
independent legal advice in entering into this Agreement. In the event that a dispute arises over
the meaning or application of any term(s) of this Agreement, such terms) shall not be construed
by the reference to any doctrine calling for ambiguities to be construed against the drafter of the
Agreement.
[SIGNATURE PAGE FOLLOWS)
28
AGREED TO THIS a; 7 DAY OF 3L1 , 2006.
Town of Leesburg, Virginia
By: . i.�1tX.� i4t3i c4.
Town 1
o n ,�? ager
Verizon Virginia Inc.
By:
Robert W. Woltz, Jr.
President
EXHIBITS
Exhibit A: Service Area
APPROVED
:,W DEPT.
Exhibit B: Town Buildings to be Provided Free Cable Service
Exhibit C: The Town's PEG Channels
Exhibit D: Customer Service Standards
Exhibit E: Performance Bond
Exhibit F: Letter of Credit
Exhibit G: Acceptance of Franchise by the Franchisee
EXHIBIT A
SERVICE AREA
The service area is shown in the attached map.
ay
ivacio m Counuy
Service Area
,.q Leesburg
Lief Town Boundary
El County Boundary
Service Area Map for
Leesburg, Virginia
1i3osagoruety Cottt y
1.4
—� Miles
EXHIBIT B
TOWN BUILDINGS TO BE PROVIDED FREE CABLE SERVICE
Site Name
Leesburg Town Hall
Wirt Street Annex
Leesburg Public Safety Center
Ida Lee Park Recreation Center
Ida Lee Administrative Building
Thomas Balch Library
Leesburg Water Treatment Plant
Leesburg Water Pollution Control Facility
Leesburg Airport
Utility Lines Division
Future Sites
This site is currently under construction
Utility Lines Division
Street # Street
25 West Market Street
7 Wirt Street
65 Plaza St N.E.
60 Ida Lee Drive N.W.
50 Ida Lee Drive N.W.
208 W. Market St.
Edwards Ferry Road Northeast,
I391 East Market Street
1001 Sycolin Road Southeast
1393 East Market Street
1389 East Markct Street
EXHIBIT C
THE TOWN'S PEG CHANNELS
Franchisee shall provide the following PEG Channels to the Town:
One (1) Channel solely for the Town of Leesburg governmental access;
One (1) Channel for educational access shared by educational institutions in the County;*
One (1) Channel provided for governmental access to be shares with the County;*
One (1) Channel for public access and local origination used by the Franchisee;* and,
One (1) Channel reserved.
* Loudoun County PEG Channels
EXIIIB�'h D
CUSTOMER SERVICE STANDARDS
This Section sets forth the minimum customer service standards that the Franchisee must
satisfy. In addition, and subject to the provisions of this Agreement, the Franchisee shall at all
times satisfy any additional requirements established by applicable federal and state or
regulation, as the same may be amended from time to time, including, without limitation,
consumer protection laws. These standards shall, starting six (6) months after the Service Date,
apply to the Franchisee to the extent it is providing Cable Services over the Cable System in the
Franchise Area.
I. DFFINITIONS
The Town and the Franchisee agree that the following definitions shall govern the
Town's enforcement of and the Franchisee's obligations under the customer service standard
requirements under this Exhibit D:
As Soon As Possible: As used in 47 C.F.R. § 76.1603(h), means no sooner than thirty
(30) days in advance of such change.
Customer Service Center: As used in 47 C.F.R. § 76.309(c)(1)(v), means that the
Franchisee must provide for the pick up or drop off of equipment in one of the following
manners: (i) by having a Franchisee representative going to the Subscriber's residence,
(ii) by using a mailer, or (iii) by establishing a local business office in the Town.
Customer Service Representative: As used in 47 C.F.R. § 76.309(c)(1)(ii), means a live
representative, an Automated Response Unit ("ARU"), or a Voice Response Unit
("VRU"). If an ARU or VRU is used, then the Franchisee must make every effort to
assure that the device provides customer service similar to that provided by a qualified
live representative.
Next Billing Cycle: As used in 47 C.F.R. § 76.309(c)(3)(i)-(ii) and in this Agreement,
means the Subscriber's next available billing cycle.
Resolution of the Request: As used in 47 C.F.R. § 76.309(c)(3)(i)(A), means the
Subscriber's Next Billing Cycle following determination by the Franchisee of the
Subscriber's right to a refund.
Respond (or Begin Working On as used in 47 C.F.R § 76.309(c)(2)(ii)): Franchisee's
investigation of a Service Interruption by receiving a Subscriber call and placing the
Subscribers service repair request into the Franchisee's automated repair response system
and, if required, taking action.
Return of the Equipment: As used in 47 C.F.R. § 76.309(c)(3)(i)(B), a Subscriber's
equipment is considered returned when the Franchisee has accepted the condition of the
equipment and billed for any outstanding charges, all of which shall be completed no
later than the Subscriber's Next Billing Cycle.
- Standard Installation: installations where the customer's premises are within two
hundred (200) feet of the serving terminal, or the edge of the property, whichever is less,
and where an ONT is already present.
- System Manctions: Service impacting event originating at the Franchisee's video hub
offices or super-headend.
II. CUSTOMER SERVICE STANDARDS
A. The Franchisee shall comply with the customer service standards set forth in 47
C.F.R. §§ 76.309(c), 76.1602, 76.1603, and 76.1619, as such standards may be amended from
time to time.
B. Measurement of the standard in 47 C.F.R. § 76.309(c)(1)(ii) may 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.
C. The Franchisee shall employ an operator or maintain a telephone answering
device twenty-four hours per day, each day of the year, to receive Subscriber complaints and
answer inquiries during Normal Business Hours.
D. The Franchisee shall establish maintenance service capable of promptly locating
and correcting System Malfunctions.
E. The Franchisee shall maintain a publicly -listed, local toll -free telephone number
that shall be available to Subscribers to request service calls, twenty-four hours per day, each day
of the year. Under Normal Operating Conditions, the Franchisee shall Respond not later than the
next business day after a service call is received, and corrective action shall be completed as
promptly as practicable. Appropriate records shall be made of service calls, showing when and
what corrective action was completed.
F. If requested by a mobility -limited customer, the Franchisee shall arrange for
pickup and/or replacement of converters or other Franchisee equipment at the Subscriber's
address or by a satisfactory equivalent.
G. In the event that Franchisee fails to provide service to Subscribers for more than
twenty-four hours, the Franchisee shall provide the affected Subscribers with a pro rata credit or
rebate of the Subscriber's fees paid or payable, upon request by a Subscriber.
H. The failure of the Franchisee to hire sufficient staff or to properly train its staff
shall not justify a Franchisee's failure to comply with the provisions in Exhibit D.
I. The Franchisee shall maintain a public file containing all notices provided to
Subscribers under these customer service standards. The notices shall be placed promptly in the
public file and maintained for at least one year from the date of the notice.
J. The Franchisee shall establish a clear procedure for resolving complaints filed by
Subscribers. Complaints may be made orally or in writing, at the complainant's option.
K. The Franchisee shall provide an initial response to a complaint within five (5)
days of its receipt and a final response within thirty (30) days after a written complaint is
received. At the time of installation, upon request, and annually, the Franchisee shall provide all
Subscribers the Communications Administrator's contact information.
L. The customer service standards set forth herein shall be in addition to the rights
and remedies provided by the Virginia Consumer Protection Act of 1977, as amended.
EXHIBIT E
Franchise Bond
Bond No.
KNOW ALL MEN BY THESE PRESENTS: That (name & address) (hereinafter called the
Principal), and (name and address) (hereinafter called the Surety), a corporation duly organized
under the laws of the State of (state), are held and firmly bound unto (name & address)
(hereinafter called the Obligee), in the full and just sum of Dollars
($ ), the payment of which sum, well and truly to be made, the said Principal and
Surety bind themselves, their heirs, administrators, executors, and assigns, jointly and severally,
firmly by these presents.
WHEREAS, the Principal and Obligee have entered into a Franchise Agreement dated
which is hereby referred to and made a part hereof.
WHEREAS, said Principal is required to perform certain obligations under said Agreement.
WHEREAS, the Obligee has agreed to accept this bond as security against default by Principal
of performance of its obligations under said Agreement during the time period this bond is in
effect.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH that if
the Principal shall perform its obligations under said Agreement, then this obligation shall be
void, otherwise to remain in full force and effect, unless otherwise terminated, cancelled or
expired as hereinafter provided.
PROVIDED HOWEVER, that this bond is executed subject to the following express provisions
and conditions:
1. In the event of default by the Principal, Obligee shall deliver to Surety a written statement of
the details of such default within 30 days after the Obligee shall learn of the same, such
notice to be delivered by certified mail to address of said Surety as stated herein.
2. This Bond shall be effective , 20 . and shall remain in full force and effect
thereafter for a period of one year and will automatically extend for additional one year
periods from the expiry date hereof, or any future expiration date, unless the Surety provides
to the Obligee not less than sixty (60) days advance written notice of its intent not to renew
this Bond or unless the Bond is earlier canceled pursuant to the following. This Bond may be
canceled at any time upon sixty (60) days advance written notice from the Surety to the
Obligee.
3. Neither cancellation, termination nor refusal by Surety to extend this bond, nor inability of
Principal to tile a replacement bond or replacement security for its obligations under said
Agreement, shall constitute a loss to the Obligee recoverable under this bond.
4. No claim, action, suit or proceeding shall be instituted against this bond unless same be
brought or instituted and process served within one year after termination or cancellation of
this bond.
5. No right of action shall accrue on this bond for the use of any person, corporation or entity
other than the Obligee named herein or the heirs, executors, administrators or successors of
the Obligee.
6. The aggregate liability of the surety is IUnited to the penal sum stated herein regardless of the
number of years this bond remains in force or the amount or number of claims brought
against this bond.
7. This bond is and shall be construed to be strictly one of suretyship only. If any conflict or
inconsistency exists between the Surety's obligations as described in this bond and as may be
described in any underlying agreement, permit, document or contract to which this bond is
related, then the terms of this bond shall supersede and prevail in all respects.
This bond shall not bind the Surety unless it is accepted by the Obligee by signing below.
IN WITNESS WHEREOF, the above bounded Principal and Surety have hereunto signed and
sealed this bond effective this day of ,.2006.
Principal Surety
By: By:
, Attorney -in -Fact
Accepted by Obligee:
(Signature & date above - Print Name, Title below)
EXHIBIT F
LETTER OF CREDIT
JPMorgan
JPMorgan Chase Bank
Global Trade Services
IRREVOCABLE STANDBY LETTER OF CREDIT
Issue Date:
L/C No.:
Amount: USD $10,000 (Ten Thousand Dollars and 00/100 United States Dollars)
Beneficiary:
Town of Leesburg
25 Market Street
Leesburg, VA 20178
TO:
Town of Leesburg
Applicant:
Verizon Communications Inc.
d/b/a Verizon Virginia Inc.
One Verizon Way
MC: VC53S459
Basking Ridge, NJ 07920
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 JPMorgan
Treasury Services, Tampa, Florida, at our close of business on
This Letter of Credit is available with JPMorgan Chase Bank against presentation of your
draft at sight drawn on JPMorgan Chase Bank when accompanied by the documents indicated
herein.
Beneficiary's dated statement purportedly signed by the Communications Administrator
or the Director of the Department of Finance reading as follows:
"The amount of this drawing USD $ , under JPMorgan Chase Bank Letter
of Credit No. represents funds due us as Vcrizon Virginia, Inc. has failed to
perform its duties pursuant to the Cable Franchise Agreement By and Between the Town of
Leesburg, Virginia, and Verizon Virginia Inc., 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 the Communications Administrator or the Director of
the Department of Finance reading as follows:
"The amount of this drawing USD $ under JPMorgan Chase Bank Letter of
Credit number represents funds due us as we have received notice from JPMorgan
Chase 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 JPMorgan Treasury
Services, Standby Letter of Credit Dept., 4` FL, 10420 Highland Manor Drive, Tampa, Florida
33610. Customer inquiry Number is 1-866-632-5101 and choose option No. 3.
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 Iaws of
Virginia without regard to principles of conflict of laws.
Authorized Signature (Bank)
EXHIBIT G
ACCEPTANCE OF FRANCHISE BY THE FRANCHISEE
The Franchisee hereby accepts the franchise to erect, construct, maintain, and operate the
Cable System offered by Ordinance No. 2006-0-13 of the Town (the "Granting Ordinance"). By
this acceptance, the Franchisee agrees that it shall be bound by the terms and conditions of the
Agreement and any amendments thereto (the "Franchise Documents").
By accepting the franchise, the Franchisee further: (1) acknowledges and accepts the
Town's legal right to issue and enforce the franchise; (2) agrees that it will not oppose the Town's
intervention in any proceeding affecting the Cable System; (3) accepts and agrees to comply with
each and every provision of the Franchise Documents; (4) agrees that the franchise and Granting
Ordinance shall not be effective until and unless all conditions precedent are satisfied; and (5)
agrees that the franchise was granted pursuant to processes and procedures consistent with
applicable law, and that it will not raise any claim to the contrary.
The Franchisee declares that it has carefully read all of the teiiiis and conditions of the
Franchise Documents, and accepts and agrees to abide by the same.
Upon the franchise becoming effective, the Franchisee shall be immediately bound to
maintain and operate the Cable System under the terms, conditions and limitations set forth in
the Franchise Documents, as of the time and date it files this written acceptance with the Town.
AGREED TO THIS al 7 DAY OF J i/A) e- , 2006.
VI R» VIRGINIA INC.
13y:
Robert W. Woltz Jr.
Its: President
APPROVED
LAW DEPT.
COMMONWEALTH OF VIRGINIA:
I HEREBY CERTIFY, that on this 397 day of 37.1 �61--- , 2006, before me, the
subscriber, a Notary Public o the Commonwealth of Virginia, personally appeared
'S'o bei / 4). �/i , ,../,R of Verizon Virginia Inc. and acknowledged the
foregoing Acceptance of Franchise by the Franchisee, to be the act and deed of said company.
Ceitnty/City/Teter of c,i�ivi c Jc+, Y i4
AS WITNESS my hand and Notary Seal
Notary Public
My Commission Expires: / t41L/L 3/, ,,,W69