EXHIBIT 10.60
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CONSENT TO ASSIGNMENT AND
ASSUMPTION
Verizon Media Ventures
Inc. (formerly, GTE Media
Ventures Incorporated), a Delaware corporation
(“Verizon”), for consideration received, effective on
this the 17 th day of December 2003
(“Effective Date”), does hereby assign all of the
rights, privileges, and obligations that arise under or accrue from
the Pole Attachment Agreement dated March 11, 1997 between it and
Progress Energy Florida, Inc. (formerly, Florida Power
Corporation) (“Progress”) (“Agreement”) to
Knology Broadband of Florida, Inc., a Delaware corporation
(“Knology”), with the exception that any and all
presently outstanding monetary obligations, debts, and liabilities
or other claims currently owed to Progress by Verizon remain in
full force and effect against Verizon and that those presently
outstanding monetary obligations, debts, and liabilities or other
currently known claims are enforceable by Progress.
Knology does hereby assume and agree
to perform or discharge and be bound by all of the obligations,
liabilities, covenants, conditions and restrictions to be done,
kept, performed or discharged by, or imposed upon Verizon under the
Agreement. All presently outstanding monetary obligations, debts,
and liabilities or other claims currently owed to Progress by
Verizon under the Agreement shall continue to be in full force and
effect and enforceable against Verizon.
Progress does hereby consent to the
assignment to Knology by Verizon of all of Verizon’s rights,
title and interest in and duties and obligations under the
Agreement that arise under or accrue from the Agreement. By
consenting to this assignment and assumption, Progress does hereby
release Verizon upon and after the Effective Date of this Consent
of all liabilities and obligations arising under the Agreement
after the Effective Date of this Consent except that Progress is
not and shall not be deemed to be releasing Verizon of any
presently outstanding monetary obligations, debts, or liabilities
or other currently known claims that have arisen under the
Agreement prior to the Effective Date of this Consent to Assignment
and Assumption, nor is it waiving any of its rights to pursue any
and all outstanding claims against Verizon. Progress further
confirms that the Agreement is validly existing and in full force
and effect.
Page 1 of 2
Consent to Assignment and Assumption
Progress Energy Florida, Inc.
This Consent to Assignment and
Assumption shall be binding upon and shall inure to the benefit of
the undersigned parties and their respective successors and
assigns. This Consent to Assignment and Assumption may be executed
in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one
instrument. Any signature page of any such counterpart, or any
electronic facsimile thereof, may be attached or appended to any
other counterpart to complete a fully executed counterpart of this
Consent to Assignment and Assumption. Any electronic facsimile
transmission of any signature of a party shall be deemed an
original and shall bind such party.
Dated this 5 day of January, 2004.
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PROGRESS ENERGY FLORIDA,
INC.
(FLORIDA POWER
CORPORATION)
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/s/ Helen Duncan
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By:
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/s/ Illegible
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Attest
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Title:
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VP-DOS
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Dated this
day of
December, 2003.
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VERIZON MEDIA VENTURES
INC.
(GTE MEDIA VENTURES
INCORPORATED)
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By:
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/s/ Illegible
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Attest
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Title:
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Dated this 17 th day of December, 2003.
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KNOLOGY BROADBAND OF FLORIDA, INC.
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/s/ Illegible
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By:
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/s/ Illegible
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Attest
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Title:
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VP
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Page 2 of 2
Consent to Assignment and Assumption
Progress Energy Florida, Inc.
POLE ATTACHMENT
AGREEMENT
THIS AGREEMENT between FLORIDA POWER
CORPORATION A Florida corporation, with its principal office
located at 3201-34th Street South, St. Petersburg, Florida, 33711,
herein referred to as “FPC”, and GTE Media Ventures
Incorporated, a corporation organized and existing under the laws
of the State of Delaware, and duly authorized to transact business
in the Stare of Florida and maintaining its principal office for
the conduct of business in the State of Florida at 1280 East
Cleveland Street, Clearwater, Florida 34615, herein referred to as
the “Cable Company”;
WITNESSETH
WHEREAS, Cable Company proposes to
erect, maintain and attach Communication Facilities to poles owned
by FPC; and
WHEREAS, FPC, to the extent required
by federal, state and local law, agrees to permit the attachment of
such Communications Facilities to poles, in strict accordance with
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of
the premises aforesaid and the mutual covenants and agreements
hereinafter set forth, the parties hereby mutually agree as
follows:
ARTICLE 1 - SCOPE OF
AGREEMENT
Section 1.0 Definitions
For the purpose of this Agreement,
the following terms shall have the following meanings:
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1.01
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“Attachment” shall mean FPC
authorized contact(s) on a pole to accommodate a single messenger
strand (support wire) system, with or without communication
cable(s) lashed to it .This includes service drops and multiple
contacts where required for construction on this single messenger
strand system. Any additional contact(s) required for a second
messenger strand system will be considered as a second attachment.
Multiple service drops attached to a single lift (drop) pole and
positioned in close proximity to one another will be considered as
one attachment. Any other appurtenance affixed to a pole not herein
defined, with the exception of guy and ground wires, shall be
considered as a separate attachment. Any existing Third party
communication cable attachment to which Cable Company may overlash
or otherwise attach shall be considered as a separate attachment
from that of the existing third party.
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1.02
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“Cable
Company and its Contractors” shall mean the Cable Company and
any person, or entities who provide labor, services or materials in
connection with the attachment and maintenance of Cable
Company’s attachment to FPC’s poles, including, but not
limited to, contractors, subcontractors, sub-subcontractors,
materialmen, agents of any kind and respective officers,
supervisors, agents and employees.
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1.03
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“Communication Facilities” shall
mean all cables, support wires, bonding wire, grounds, guy wires,
power supplies or other equipment of Cable Company which is
attached to FPC’s poles in furtherance of Cable
Company’s distribution service.
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1.04
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“Distribution Pole(s)” are defined
as a wood, concrete, or metal pole on which is supported supply
conductors of less than 50KV, included in FERC Account 364
“Distribution Plant Poles, Towers &
Fixtures.” Normally this pole will have a length of less than
55 feet. This includes lift (drop) poles which normally support
only service drops to the customer.
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1.05
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“FPC’s Poles” are defined as
either Distribution Poles or Transmission Poles to which FPC has
agreed to permit attachment pursuant to this Agreement
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1.06
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“NESC” shall mean the current
edition of the “National Electrical Safety Code” as
amended, including all retroactive provisions, if any.
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1.07
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“Transmission Pole(s)” are defined
as a wood, concrete or metal pole on which is supported supply
conductors energized above 50KV included in FERC Account 355,
“Transmission Plant, Poles & Fixtures.” Normally,
this will be a pole having & length of 55 feet or
more.
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Section 1.1 Effective Date
This Agreement shall not become
effective and binding upon FPC until it is approved and executed by
a Vice President of FPC and until a fully executed copy hereof is
delivered to Cable Company.
Section 1.2 Term
This Agreement shall continue for a
period of ten (10) years from the Effective Date unless earlier
terminated by either party.
ARTICLE II - AUTHORITY TO
ATTACH
Section 2.0 Authority to
Attach
This Agreement shall be in effect in
any area in Florida for which Cable Company holds a valid franchise
or license from a local government as required by state and local
laws, or as otherwise authorized by a local governmental authority
to provide cable services to such areas in which FPC’s poles
are located. Upon compliance with all relevant terms and provisions
of said franchise or license and this Agreement, Cable Company is
authorized to attach its communications facilities to FPCs
Poles.
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Section 2.1 Denial of
Attachment
To the extent permitted under
federal, state and local law, FPC reserves the right to deny
attachment or order removal of existing attachments of
communications facilities to any of FPC’s Poles including,
but not limited to, poles which in the reasonable judgment of FPC
(i) are required for the immediate or planned use of FPC, (ii) are
not acceptable for attachment because of safety considerations and
compatibility with existing or committed attachments of others
within the available communication space on existing poles, (iii)
have been installed primarily for the use of a third party, or (iv)
attachments of communications facilities to the attachments of
third parties presently attached to FPC’s without the
permission of the third party to so attach.
Section 2.2 Unauthorized
Attachments
Any unauthorized attachment to FPC
poles shall constitute a trespass and be subject to removal. FPC
will provide written notice to Cable Company allowing 30 days in
which to remove or make suitable arrangements to permit the
unauthorized attachments. If no arrangements have been made within
the time allowed, FPC shall have the right to remove the
unauthorized attachments at the sole cost and expense of Cable
Company.
ARTICLE III - GUIDELINES FOR
ATTACHMENTS
Section 3.01 Permitting of
Attachment
Before making any initial or
additional attachment of its facilities to any pole of FPC, Cable
Company shall make application to FPC for a permit in the form of
Exhibit A, attached hereto. No attachment shall be made by Cable
Company prior to receipt from FPC of an approved permit, which will
be processed in the time frame required by law. Service drops on
lift poles may be permitted monthly on one “after the
fact” permit. Additional attachments made during an emergency
repair shall be reported as soon as practically possible. Cable
Company shall ensure that each permitted attachment is made in
accordance with the terms of this Agreement as well as the specific
provisions, if any, contained in the permit. The failure of Cable
Company to obtain such a permit prior to making an attachment shall
constitute a trespass and a willful violation of this Agreement.
Recurrent violations of this Section may result in termination of
this Agreement.
Section 3.02 Permit Forms
Beginning with the commencement date
of this Agreement, the submittal of Attachment Request ( Exhibit
A ) and Removal Request ( Exhibit B ) forms shall be the
exclusive procedure to be used by Cable Company in obtaining
permits to attach or remove its facilities to/from FPC poles. These
Exhibits will also
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adjust the inventory of attachments from which
monthly billings will be generated. All Attachment Request and
Attachment Removal forms must be submitted to:
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Florida Power Corporation
Distribution Facilities Utilization
2600 Lake Lucien Drive
Suite 400
Maitland, FL 32751-7234
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Section 3.03 Installation
Standards
Cable Company’s communications
facilities shall be erected and maintained in accordance with NESC
and the current requirements of FPC, and as may be amended or
revised. Existing facilities which comply with NESC requirements
may be operated in place until rebuild, relocation, etc., provides
opportunity to upgrade to current FPC requirements. Drawings
2-A-15, 16 and 2-C-10 through 13 and 2-C-20 through 41 and their
amendments, are incorporated herein, and unless otherwise
specified by FPC, describe minimum construction requirements under
typical conditions.
Section 3.04 Pre-Attachment
Inspections
FPC shall have the right, but not
the obligation, to conduct a pre-attachment field inspection of all
proposed attachment locations described in the permit application.
FPC’s inspections shall not excuse Cable Company’s
non-compliance with, or inspection obligation under, this
Agreement. Cable Company shall reimburse FPC upon written demand
for all costs of such inspection. Failure by FPC to assess or
collect such costs at the time of such inspection shall not
constitute a waiver of FPC’s right to assess or collect such
costs.
Section 3. O5 Make-Ready Work
In the event that any of FPC’s
Poles, to which Cable Company desires to make attachments, are
inadequate to support Cable Company’s facilities, FPC will so
notify Cable Company in writing, including a detailed description
of the make-ready work necessary to permit such attachment. This
may include, but is not limited to, the increased cost of larger
poles, cost of removal and the expense of transferring FPC’s
facilities, from the old to the new poles, together with the
estimated cost of such make-ready work, to Cable Company, and any
other specification with which the attachment must comply as a
condition(s) for approval of the permit. Before FPC will proceed
with any make-ready work, Cable Company shall provide written
confirmation that it wishes FPC to proceed with such make-ready
work. Such writing obligates Cable Company to reimburse FPC for the
entire cost and expense of such make-ready work. Upon completion,
FPC will provide Cable Company with written authorization to
attach. Where Cable Company’s desired attachments can be
accommodated on present poles of FPC by rearranging
FPC’s
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facilities thereon, Cable Company shall pay FPC
for the entire cost and expense of completing such rearrangement.
Cable Company shall also make arrangements with the owners of other
facilities attached to FPC’s Poles to reimburse any expense
incurred by them in transferring or rearranging the other
facilities. Such work shall be completed before Cable Company
attaches its Communications Facilities to FPC’s Poles. Any
additional support of poles, including, but not limited to, guying
required to accommodate the attachments of Cable Company, shall be
provided by and at the expense of Cable Company. Cable Company
shall not set any poles under or in close proximity to FPC’s
facilities which location would be in violation of NESC
requirements. Cable Company may, however, request FPC to set such
poles as Cable Company may desire, and FPC may accept such request
unless such poles would unreasonably interfere with FPC’s or
other owners’ use of their facilities. If such request is
granted, Cable Company shall pay FPC for the entire cost of selling
such poles.
Section 3.06 Updated Location
Maps
It shall be the duty and
responsibility of Cable Company to maintain accurate, up-to-date
location maps and records of all its attachments on FPCs poles. FPC
shall have the right to inspect, and upon request, obtain a copy of
said location maps and records at any time during regular business
hours with reasonable notice.
Section 3.07 Maintenance of
Attachments
Cable Company shall, at its own
expense make and maintain its attachments to FPC’s Poles in a
safe and workmanlike manner in accordance with this Agreement,
industry standards and all applicable codes and laws, including the
NESC. Violations of FPC or NESC requirements which are discovered
by FPC shall immediately be corrected by Cable Company at its
expense. Failure by Cable Company to so maintain its attachments
may result in termination of this Agreement pursuant to Article
VII.
Section 3.08 Relocation of Attachments Due to
Conflicts or Unreasonable Interference
Cable Company attachments shall not
conflict with the primary use of FPC’s Poles by FPC, or by
any other prior party using the poles, or unreasonably interfere
with the operation of other pre-existing facilities thereon or
which may from time to time be placed thereon. Cable Company shall
within 30 days of written notice, and at its own expense, remove,
relocate, replace, rebuild or renew its facilities placed on any
poles, or transfer them to substituted poles, or perform any other
work in connection with its facilities that may be required by FPC,
the NESC or other applicable codes and laws. However, in case of
any emergency, or nonresponse within above 30 day provision, FPC
may, but shall not be obligated to, remove, relocate, replace
rebuild or renew the facilities placed on poles by Cable Company,
transfer them to substituted poles, or perform any other work in
connection with said facilities that may be required for
FPC’s maintenance, replacement, removal or relocation of said
poles or the facilities thereon. Cable Company
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shall, on written demand, reimburse FPC for all
reasonable expenses incurred by FPC pursuant to the provisions of
this Section. Nothing in this Section shall be construed to relieve
Cable Company from maintaining adequate work forces readily
available to promptly repair, service and maintain Cable
Company’s facilities as herein required.
Section 3.09 Pole Maintenance and Facilities
Operation
FPC reserves to itself, its
successors and assigns, the right to maintain its poles and to
operate its facilities thereon in such manner as will enable it to
fulfill its own electric service and maintenance requirements. FPC
shall not be liable to Cable Company, and Cable Company hereby
waives any claims for simple negligence which may cause damage to
or interruptions of cable communications service or for
interference with the operation of the cables and wires of Cable
Company.
Section 3.10 Identification of
Attachments
Cable Company shall identify all of
its facilities on FPC poles by tagging, marking, etc., pursuant to
FPC identification requirements, as amended.
Section 3.11 Voluntary Removal of
Attachments
Cable Company may at any time remove
its communication facilities, in whole or in part, from FPC’s
Poles and it shall immediately give FPC written notice of such
removal with the submission of Exhibit B attached
hereto.