Transfer Pricing Agreement

Actual Legal Document Sample

You are currently viewing:

This Receivables Purchase Transfer Agreement involves

KNOLOGY INC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: TRANSFER AGREEMENT
Governing Law: Florida Date: 3/30/2004
Industry: Broadcasting and Cable TV Sector: Services

This Transfer Pricing Agreement is an execution copy legal document drafted by a top US law firm for their client.

EXHIBIT 10.58

December 16, 2003

Page 1

TRANSFER AGREEMENT

T HIS A GREEMENT is made this 16 ^th day of December, 2003, by and between:

A. City of Clearwater (“CITY”);

B. Verizon Media Ventures Inc. a Delaware corporation, hereinafter referred to as V ERIZON ; and

C. Knology Inc., a Delaware corporation, hereinafter referred to as K NOLOGY I NC .

D. Knology Broadband of Florida, Inc. a Delaware corporation, hereinafter referred to as K NOLOGY ; and

E. Knology New Media, Inc. a Delaware corporation and wholly owned subsidiary of Knology Inc., hereinafter referred to as K NOLOGY N EW M EDIA .

F. K NOLOGY AND K NOLOGY N EW M EDIA etc. may be referred to jointly herein as “ COMPANIES ”.

RECITALS

W HEREAS , V ERIZON currently holds a cable franchise (the “F RANCHISE ”) from the CITY subject to the GTE Media Ventures Cable Franchise Ordinance, CITY Ordinance No. 6046-96. (“ FRANCHISE AGREEMENT ”), as modified and becoming a part thereof, by stipulations attendant to a nominal change in control, from GTE Media Ventures Incorporated and Bell Atlantic Corporation in Resolution No. 00-13, all of which documents, as any of them may lawfully be or may have been amended from time to time, are collectively referred to as the “F RANCHISE D OCUMENTS ”; and

W HEREAS , by action of its Board Directors and stockholder, effective June 23, 2000, GTE Media Ventures Incorporated changed its name to Verizon Media Ventures Inc. (“V ERIZON ”) and has provided cable television service to subscribers in the CITY; and

W HEREAS , pursuant to an Asset Purchase Agreement dated July 15, 2003 (“Asset Purchase Agreement”), K NOLOGY N EW M EDIA will acquire the franchise currently held by V ERIZON and the cable system serving the CITY (“S YSTEM ”) both of which will then be assigned to K NOLOGY (the “P ROPOSED T RANSACTION ”); and

W HEREAS , the FRANCHISE AGREEMENT Section 14(A) provides that the prior approval of the CITY is required for the P ROPOSED T RANSACTION ; and

W HEREAS , V ERIZON and THE C OMPANIES filed an FCC Form 394 with the CITY and requested that the CITY approve the PROPOSED TRANSACTION (the “ TRANSFER APPLICATION ”); and

December 16, 2003

Page 2

W HEREAS , K NOLOGY agrees to provide a guarantee, in the attached form, from K NOLOGY I NC . guaranteeing performance by K NOLOGY of all of K NOLOGY ’ S obligations under the FRANCHISE DOCUMENTS and this Transfer Agreement; and

W HEREAS , THE C OMPANIES have agreed to comply with the FRANCHISE DOCUMENTS and applicable law from and after the completion of the PROPOSED TRANSACTION ; and

W HEREAS , relying on V ERIZON , and T HE C OMPANIES ’ respective representations, the CITY is willing to grant its consent to the PROPOSED TRANSACTION , subject to the terms and conditions set forth herein.

N OW , T HEREFORE , in consideration for the CITY’s consent to the PROPOSED TRANSACTION , and subject to the terms and conditions of this Agreement and of the CITY’s Resolution consenting to the PROPOSED TRANSACTION (“ TRANSFER RESOLUTION ”), THE P ARTIES DO H EREBY A GREE as follows:

Section 1. DEFINITION For purposes of this Agreement, “ FRANCHISEE ” shall mean V ERIZON prior to the closing of the PROPOSED TRANSACTION , and K NOLOGY on and after that date.

Section 2. TRANSFER OF FRANCHISE

2.1 The foregoing recitals are true and correct and are incorporated herein by reference.

2.2 The CITY has consented through the TRANSFER RESOLUTION to the PROPOSED TRANSACTION as specified in the TRANSFER APPLICATION , in consideration for the promises and performances of V ERIZON and T HE C OMPANIES as expressed in this Transfer Agreement.

Section 3. ACCEPTANCE OF FRANCHISE OBLIGATIONS

3.1 K NOLOGY hereby accepts, acknowledges, and agrees that, after the PROPOSED TRANSACTION , K NOLOGY will be bound by all the commitments, duties, and obligations, present, continuing and future, of the FRANCHISEE embodied in the FRANCHISE DOCUMENTS , and that the PROPOSED TRANSACTION will have no effect on these obligations.

3.2 V ERIZON and the C OMPANIES agree that neither the PROPOSED TRANSACTION nor the CITY’s approval of the PROPOSED TRANSACTION shall in any respect relieve the F RANCHISEE or any of its successors in interest of responsibility for its past acts or omissions, known or unknown. V ERIZON hereby agrees that, except to the extent otherwise covered by separate agreements, it shall be liable for its past acts and omissions, known and unknown, including liability for any and all previously accrued but

December 16, 2003

Page 3

unfulfilled obligations to the CITY, under the FRANCHISE DOCUMENTS and applicable law, for all purposes, including but not limited to review of past performance. K NOLOGY agrees that, for purposes of determining whether its FRANCHISE should be renewed, all acts and omissions of FRANCHISEE occurring prior to this Agreement will be deemed to be those of K NOLOGY . The PROPOSED TRANSACTION shall not restrict or expand the rights of the C OMPANIES under or related to the FRANCHISE DOCUMENTS as compared to those that could have been exercised by the FRANCHISEE prior to the PROPOSED TRANSACTION .

3.3 V ERIZON shall ensure that all records pertaining to the FRANCHISE , including financial records, shall continue to be available after the PROPOSED TRANSACTION in the same way and to the same extent such information was available prior to the PROPOSED TRANSACTION . K NOLOGY shall ensure that all records pertaining to the FRANCHISE in its possession, shall continue to be available after the PROPOSED TRANSACTION in the same way and to the same extent such information was available prior to the PROPOSED TRANSACTION .

3.4 K NOLOGY represents and warrants that it has and will have complete and actual working control over the system.

3.5 K NOLOGY shall execute and submit to the CITY an Acceptance of Franchise by K NOLOGY in substantially the form attached hereto as Exhibit B.

3.6 K NOLOGY agrees to provide a guarantee from Knology, Inc. and K NOLOGY N EW M EDIA in the form specified in Exhibit A, which is acceptable to the CITY, guaranteeing performance by K NOLOGY of all of K NOLOGY ’ S obligations under the FRANCHISE DOCUMENTS and this Transfer Agreement. The signed guarantees must be provided on or before the closing of the PROPOSED TRANSACTION .

3.7 V ERIZON and the C OMPANIES agree that, from and after the consummation of the PROPOSED TRANSACTION it shall comply with all of the terms and conditions set forth in this Transfer Agreement. V ERIZON agrees that it will not take any action, without cause, that prevents K NOLOGY from complying with its obligations under the Franchise Documents or this Agreement. V ERIZON agrees that it will provide the CITY 20 days prior notice of any action taken by V ERIZON which may reasonably result in an interruption or degradation of service to K NOLOGY subscribers on account of a failure by K NOLOGY to meet an obligation under any agreement between K NOLOGY and V ERIZON .

Section 4. RESERVATION OF RIGHTS

4.1 The CITY reserves all rights not expressly granted in this Transfer Agreement, including without limitation those specified below.

4.2 The CITY waives none of its rights with respect to the FRANCHISEE ’, the C OMPANIES ’ or V ERIZON ’ S compliance with the requirements set forth in the FRANCHISE

December 16, 2003

Page 4

DOCUMENTS . At no time will the COMPANIES contend, either directly or indirectly, that the CITY is barred, by reason of the PROPOSED TRANSACTION , from considering, or raising claims based on, any defaults of K NOLOGY or V ERIZON , any failure by K NOLOGY or V ERIZON to provide reasonable service in light of the community’s needs, or any failure by K NOLOGY or V ERIZON to comply with the terms and conditions of the FRANCHISE DOCUMENTS or with applicable law. The CITY approval of the PROPOSED TRANSACTION shall in no way be deemed a representation by the CITY that the FRANCHISEE is in compliance with all of its obligations under the FRANCHISE DOCUMENTS .

4.3 Neither this Transfer Agreement, nor any other action or omission by the CITY at or before the execution of this Transfer Agreement, shall be construed to grant the CITY’s consent to any future transfer of the FRANCHISE and/or the System, and/or any future change in ownership and/or control of the FRANCHISE and/or the System, or to mean that the CITY’s consent to any future transaction is not required.

4.4 Any consent given by the CITY to the P ROPOSED T RANSACTION is made without prejudice to, or waiver of, the CITY’s right to investigate and take into account any lawful considerations during any future FRANCHISE renewal or transfer process.

4.5 This Transfer Agreement does not affect and shall not be construed to affect the rights and authority of the CITY to regulate or authorize, by ordinance, license or otherwise, use of the public rights-of-way for purposes other than for cable service.

Section 5. REPRESENTATIONS AND WARRANTIES

5.1 V ERIZON and each of the COMPANIES hereby represents and warrants that at the time of the execution of this Agreement: (a) it is a corporation or partnership duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized; (b) the FRANCHISE DOCUMENTS and, assuming due execution hereof by the other parties hereto, this Transfer Agreement constitute legal, valid and binding obligations of such Company enforceable in accordance with their terms; (c) the execution and delivery of, and performance by such Company under, this Transfer Agreement and the FRANCHISE DOCUMENTS , where applicable, are within such Company’s power and authority without the joinder or consent of any other party and have been duly authorized by all requisite corporate or partnership action on the part of such Company and are not in contravention of such Company’s partnership agreement, charter, bylaws, and/or other organizational documents; and (d) no representation made to the CITY by such Company is incomplete, untrue or inaccurate in any material respect.

5.2 K NOLOGY represents and warrants that neither the P ROPOSED T RANSACTION nor this Transfer Agreement will adversely affect K NOLOGY ’ S ability to meet the requirements of the current FRANCHISE DOCUMENTS , or to meet the CITY’s future cable-related needs and interests in a renewal FRANCHISE .

December 16, 2003

Page 5

5.3 K NOLOGY represents and warrants that the P ROPOSED T RANSACTION will not have any adverse financial effect on the System, or adversely affect performance.

5.4 K NOLOGY represents and warrants that after the P ROPOSED T RANSACTION , K NOLOGY ’ S financial qualifications will be such as shall enable it to maintain and operate the System in the CITY.

5.5 K NOLOGY represents and warrants that the P ROPOSED T RANSACTION will not in any respect reduce the quality of customer service in the CITY.

5.6 K NOLOGY represents and warrants that the P ROPOSED T RANSACTION will not reduce the quality of existing system maintenance or repair.

Section 6. INDEMNIFICATION

6.1 V ERIZON and each of the COMPANIES agree to indemnify and hold the CITY harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorneys’ fees) caused by any representation or warranty made by that Company herein which is determined by a court of competent jurisdiction or by the parties to be untrue or inaccurate in any material respect.

6.2 In addition to any indemnification under the F RANCHISE D OCUMENTS , K NOLOGY shall indemnify and hold the CITY harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorneys’ fees) incurred by the CITY in connection with any action or proceeding commenced by a third party (not one of the parties to this Transfer Agreement) claiming or asserting any liability of the CITY relating to or arising from the P ROPOSED T RANSACTION or this Transfer Agreement.

6.3 V ERIZON shall indemnify, pay the cost of defense, including attorney’s fees, and hold harmless the CITY from all suits, actions or claims of any character brought on account of any injuries or damages received or sustained by any person, persons or property by or from the Franchise; or by, or in consequence or of any neglect in safeguarding the work under the Franchise; or on account of act or omission, neglect or misconduct of V ERIZON ; or by, or on account of, any claim or amounts recovered under the Workers’ Compensation Law or of any other laws, by-laws, ordinance, order or decree, except only such injury or damage as shall have been occasioned by the sole negligence of the CITY. Notwithstanding the foregoing, V ERIZON ’s indemnification obligation hereunder shall be limited to suits, actions, or claims resulting from acts or omissions prior to the date of Transfer. The CITY shall give V ERIZON prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section.

December 16, 2003

Page 6

Section 7. ADDITIONAL CONDITIONS

7.1 In the event the transfer does not close by March 31, 2004, or closes on terms that are in any material respect different from the terms disclosed to the CITY in writing, then any CITY consent to the P ROPOSED T RANSACTION shall be void and of no force or effect, and the P ROPOSED T RANSACTION deemed to have been timely denied.

7.2 V ERIZON and the COMPANIES hereby waive any and all claims that they may have that any denial of the TRANSFER APPLICATION that results from failure of the conditions herein fails to satisfy the deadlines established by applicable law including, without limitation, claims based on, arising out of, or relating to 47 U.S.C. § 537, as amended, and agree that they shall be deemed to have agreed to an extension of the time to act on the TRANSFER APPLICATION as required to make any denial effective.

7.3 K NOLOGY shall provide proof that all required insurance, bonds and letters of credit have been delivered to the CITY on or before the Closing of the Proposed Transaction. Within 20 days of K NOLOGY I NC . closing its public stock offering, it shall submit proof that it has satisfied any liens or encumbrances arising out of the five million dollar Purchase Money Financing Line of Credit between K NOLOGY N EW M EDIA I NC . and certain of its investors.

7.4 Except to the extent provided below all required insurance, bonds and letters of credit currently provided by V ERIZON shall remain in full force until K NOLOGY provides proof to the CITY that all insurance, bonds and letters of credit as required under the F RANCHISE have been obtained. V ERIZON shall maintain in full force and effect a faithful performance bond running to the CITY, with a good and sufficient surety approved by the CITY, in the amount of $100,000.00, conditioned that V ERIZON shall well and truly observe, fulfill, and perform each term and condition of the F RANCHISE which V ERIZON is obligated to observe, fulfill, and perform until and including the Closing of the P ROPOSED T RANSACTION , and that, in case of any breach which may be discovered and for which a claim may be made before or after the Closing of the P ROPOSED T RANSACTION , the CITY shall be entitled to recover from the principal and sureties thereof the amount of all damages, including all costs and attorney’s fees incurred by the CITY, approximately resulting from the failure of V ERIZON to well and faithfully observe and perform any and all of the provisions of the F RANCHISE which V ERIZON was obligated to observe and perform prior to and including the Closing of the P ROPOSED T RANSACTION . Such bond shall be maintained in full force and effect for a term or succession of terms ending 18 months after the effective date of this Agreement.

Section 8. BREACHES Any breach of this Transfer Agreement on or after Closing by K NOLOGY shall be deemed a breach of the FRANCHISE AGREEMENT and shall be subject to all remedies available for a breach of the FRANCHISE AGREEMENT , in

December 16, 2003

Page 7

addition to any other remedies the parties may have under this Transfer Agreement at law or equity.

Section 9. MISCELLANEOUS PROVISIONS.

9.1. Effective Date : This Transfer Agreement shall be effective and binding upon the signatories once it has been signed by all signatories.

9.2 Binding Acceptance : This Transfer 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. Any purported assignment of this Transfer Agreement is void without the express written consent of the signatories.

9.3 Voluntary Agreement : This Transfer Agreement is freely and voluntarily given by each party, without any duress or coercion, and after each party has consulted with its counsel. Each party has carefully and completely read all of the terms and provisions of this Transfer Agreement. Neither any of the COMPANIES, nor any of their affiliates, nor the CITY, will take any action to challenge any provision of this Transfer Agreement; nor will they participate with any other person or entity in any such challenge.

9.4 Severability : If any term, condition, or provision of this Transfer Agreement shall, to any extent, be held to be invalid, preempted, or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective.

9.5 Counterparts : This Transfer Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all parties shall not have signed the same counterpart.

9.6 Conforming Amendments to Franchise Agreement : K NOLOGY agrees to accept FRANCHISE amendments to the extent necessary to reflect the P ROPOSED T RANSACTION or the provisions of this Transfer Agreement.

9.7 Governing Law : This Transfer Agreement shall be governed in all respects by the law of the State of Florida.

9.8 Captions and References : The captions and headings of sections throughout this Transfer Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Transfer Agreement. Such captions shall not affect the meaning or interpretation of this Transfer Agreement.

END OF SUBSTANTIVE PROVISIONS

SIGNATURE PAGE AND EXHIBITS TO FOLLOW

November 20, 2003

Page 8

AGREED TO THIS 16 ^th DAY OF December, 2003.


Countersigned:	CITY OF CLEARWATER, FLORIDA

/s/ Brian J. Aungst	By:	/s/ William B. Horne II

Brian J. Aungst Mayor-Commissioner		William B. Horne II City Manager


Approved as to form:						Attest:

/s/ Pamela K. Akin						/s/ Cynthia E. Goudeau

Pamela K. Akin City Attorney						Cynthia E. Goudeau City Clerk


						Verizon

						By:

								[title]


						Knology New Media, Inc.

						By:

								[title]


						Knology Broadband of Florida, Inc.

						By:

								[title]

December 16, 2003

Page 8

AGREED TO THIS DAY OF , .


Countersigned:	CITY OF CLEARWATER, FLORIDA

	By:

Brian J. Aungst Mayor-Commissioner		William B. Horne II City Manager


Approved as to form:						Attest:



Pamela K. Akin City Attorney						Cynthia E. Goudeau City Clerk


								Verizon ____

						By:		/s/ Illegible

								[title]


								Knology New Media, Inc.

						By:		/s/ Illegible

								VP – Business Development


								Knology Broadband of Florida, Inc.

						By:		/s/ Illegible

								VP – Business Development

December 16, 2003

Page 1

EXHIBIT A

GUARANTEE OF PERFORMANCE

W HEREAS , the City of Clearwater, Florida (“CITY”) granted a franchise (“ FRANCHISE ”) to Verizon Media Ventures Inc., to erect, construct, operate, and maintain a cable system in the CITY pursuant to the GTE Media Ventures Incorporated. Cable Franchise Ordinance, City of Clearwater Ordinance No. 6046-95 and as subsequently amended, all of which documents, as any of them may lawfully be or may have been amended from time to time, are collectively referred to as the “ FRANCHISE DOCUMENTS ”; and

W HEREAS , the City of Clearwater, Florida (“CITY”) consented to a transfer of a CITY FRANCHISE from V ERIZON to K NOLOGY (“ FRANCHISEE ”) conditioned upon execution of a transfer agreement and related documents including this Guarantee; and

W HEREAS , Knology lnc. (“ GUARANTOR ”) is an indirect parent of the FRANCHISEE and will have a substantial interest in the FRANCHISE , in the conduct of the FRANCHISEE , and in the FRANCHISE DOCUMENTS , which are incorporated herein by this reference;

N OW , T HEREFORE , the GUARANTOR hereby unconditionally guarantees the due and timely performance of any and all obligations of the FRANCHISEE required by the FRANCHISE DOCUMENTS . The G UARANTOR also promises that no company in the chain of ownership between it and the F RANCHISEE will take any action that would prevent the F RANCHISEE from performing its obligations under the F RANCHISE . This Guarantee, unless terminated, substituted or canceled as hereinafter provided, shall remain in full force and effect for the term of the FRANCHISE , as it may be renewed or extended and as provided by the FRANCHISE DOCUMENTS ; provided, however, that upon the CITY’s prior written approval of a substitute guarantor, which approval shall not be unreasonably withheld, this Guarantee may be terminated, substituted or canceled upon written notice from the GUARANTOR to the CITY and the FRANCHISEE . Any such substitution of the GUARANTORS will be implemented in a manner that ensures that the substitute guarantee is in place and effective prior to or contemporaneously with the termination, substitution or cancellation of this Guarantee so that there is no breach in coverage.

Any notice of such a substitution as required by law shall be addressed to the CITY Administrator with a copy to the FRANCHISEE . Such termination shall not affect liability incurred or accrued under this Guarantee prior to the effective date of such termination or cancellation.

END OF SUBSTANTIVE PROVISIONS, SIGNATURE PAGE TO FOLLOW

December 16, 2003

Page 2


Knology, Inc.

By:		/s/ Felix Boccucci

Name:		Felix Boccucci
Title:		VP – Business Development

STATE OF Georgia

I HEREBY CERTIFY, that on this 16 ^th day of December, 2003, before me, the subscriber, a Notary Public of the State of Georgia, in and for Troup County, Georgia, aforesaid personally appeared Felix Boccucci of Knology Inc. 12410 ____, West Point, Georgia and acknowledged the foregoing Acceptance of Franchise by Franchisee in Clearwater, Florida to be the act and deed of said company.

Troup County, Georgia

AS WITNESS my hand and Notary Seal

/s/ Illegible

Notary Public

My Commission Expires: MY COMMISSION EXPIRES JUNE 21, 2005

EXHIBIT B

ACCEPTANCE OF FRANCHISE BY THE FRANCHISEE

Knology (“ FRANCHISEE “) hereby accepts the franchise to erect, construct, maintain, and operate a cable system offered by the GTE Media Ventures Cable Franchise Ordinance, City of Clearwater Ordinance No. 6046-96 (“ FRANCHISE AGREEMENT ”), as assigned and modified by that Resolution No. 00-13 (“ FRANCHISE ORDINANCE ”). By this acceptance, FRANCHISEE agrees that, as set forth in the FRANCHISE ordinance, it shall be bound by the terms and conditions of the FRANCHISE AGREEMENT , any amendments thereto, (collectively, the “ FRANCHISE DOCUMENTS ”).

By accepting the franchise, the FRANCHISEE further: (1) acknowledges and accepts the CITY’s legal right to issue and enforce the franchise; (2) agrees that it will not oppose the CITY’s intervention in any proceeding affecting its franchise or obligations thereunder; (3) accepts and agrees to comply with each and every provision of the FRANCHISE DOCUMENTS ; and (4) 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 terms and conditions of the FRANCHISE DOCUMENTS , and accepts and agrees to abide by same.

The FRANCHISEE is bound to maintain and operate a cable system under the terms, conditions and limitations set forth in the FRANCHISE DOCUMENTS and other applicable law, as of the time and date it files this written acceptance with William B. Home, II, Clearwater City Manager

E ND OF S UBSTANTIVE P ROVISIONS , S IGNATURE P AGE TO F OLLOW

AGREED TO THIS 16 ^th DAY OF December, 2003.


Knology, Inc.

By:		/s/ Felix Boccucci

Name:		Felix Boccucci
Title:		VP – Business Development

STATE OF Georgia:

I HEREBY CERTIFY, that on this 16 ^th day of December, 2003, before me, the subscriber, a Notary Public of the State of Georgia, in and for Troup County, GA, aforesaid personally appeared Felix Boccucci of Knology Inc. 1241 O.G. Skinner and acknowledge the forgoing Acceptance of Franchise by Franchisee to be the act and deed of said company.

AS WITNESS my hand and Notary Seal

/s/ Illegible

Notary Public

My Commission Expires: MY COMMISSION EXPIRES JUNE 21, 2005

RESOLUTION NO. 03-41

A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA, APPROVING THE TRANSFER OF VERIZON MEDIA VENTURES INC. CABLE TELEVISION FRANCHISE TO KNOLOGY OF FLORIDA BROADBAND, INC.; AUTHORIZING EXECUTION OF THE TRANSFER AGREEMENT PROVIDING AN EFFECTIVE DATE.

WHEREAS, pursuant to Ordinance 6046-96, adopted June 20, 1996, the City of Clearwater approved a cable franchise agreement with GTE Media Ventures Incorporated, a wholly-owned subsidiary of GTE Corporation; and

WHEREAS, on April 6, 2000, the City of Clearwater adopted Resolution No. 00-13, approving the proposed GTE Corporation-Bell Atlantic Corporation merger; granting a change or transfer in control of the GTE Media Ventures cable franchise to Verizon Media Ventures Inc.; and

WHEREAS, Verizon Media Ventures Inc. (“Franchisee”), owns, operates, and maintains a cable television system (the “System”) in the City of Clearwater (the “City”), pursuant to a cable television franchise agreement (the “Franchise”); and

WHEREAS, Franchisee, and Knology New Media, Inc., (“Buyer”) are parties to an Asset Purchase Agreement (the “Agreement”), pursuant to which the Franchise will be transferred (the “Transfer”) from Franchisee to the Assignee of the Buyer, Knology of Florida Broadband, Inc. (the “Transferee”) at the consummation of the transaction contemplated by the Agreement (the “Closing”); and

WHEREAS, Franchisee and Transferee have requested consent by the City to the Transfer in accordance with the requirements of the Franchise and have filed an FCC Form 394 with the City; and

WHEREAS, in accordance with Section 14(b) of the cable franchise ordinance, Verizon Media Ventures is requesting approval of the change or transfer in control of the company; now therefore,

BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA:

Section 1. The City hereby consents to and approves, subject to applicable law, the assignment by Franchisee of its right, title and interest in the Franchise to Transferee, and the assumption by Transferee of the obligations of Franchisee under the Franchise from and after the Closing.

Section 2. The City releases Verizon, effective upon the Closing, from all obligations and liabilities under the Franchise that accrue on and after the Closing date, except for suits, actions or claims made on or after the Closing date that result from an act or omission by Verizon prior to the Closing date; provided that Transferee shall be responsible for any obligations and liabilities under the Franchise that accrue on and after the Closing date.

Section 3. The City Commission hereby authorizes execution of the Transfer Agreement attached hereto as Exhibit A.

Section 4. This resolution shall be deemed effective for purposes of the Transfer upon the Closing of the Transfer.

PASSED AND ADOPTED this 4th day of December, 2003.



				/s/ Brain J. Aungst

				Brain J. Aungst Mayor-Commissioner


Approved as to form:				Attest:

/s/ Pamela K. Akin				/s/ Cynthia E. Goudeau

Pamela K. Akin City Attorney				Cynthia E. Goudeau City Clerk

EXHIBIT “A”

November 20, 2003

Page 1

TRANSFER AGREEMENT

T HIS A GREEMENT is made this 16 ^th day of December, 2003, by and between:

A. City of Clearwater (“CITY”);

B. Verizon Media Ventures Inc. a Delaware corporation, hereinafter referred to as V ERIZON ; and

C. Knology Inc., a Delaware corporation, hereinafter referred to as K NOLOGY I NC .

D. Knology Broadband of Florida, Inc. a Delaware corporation, hereinafter referred to as K NOLOGY ; and

E. Knology New Media, Inc. a Delaware corporation and wholly owned subsidiary of Knology Inc., hereinafter referred to as K NOLOGY N EW M EDIA .

F. K NOLOGY AND K NOLOGY N EW M EDIA etc. may be referred to jointly herein as “ COMPANIES ”.

RECITALS

W HEREAS , the FRANCHISE AGREEMENT Section 14(A) provides that the prior approval of the CITY is required for the PROPOSED TRANSACTION ; and

W HEREAS , V ERIZON and THE C OMPANIES filed an FCC Form 394 with the CITY and requested that the CITY approve the PROPOSED TRANSACTION (the “ TRANSFER APPLICATION ”); and

EXHIBIT “A”

November 20, 2003

Page 2

W HEREAS , THE C OMPANIES have agreed to comply with the FRANCHISE DOCUMENTS and applicable law from and after the completion of the PROPOSED TRANSACTION ; and

W HEREAS , relying on V ERIZON , and THE C OMPANIES ’ respective representations, the CITY is willing to grant its consent to the PROPOSED TRANSACTION , subject to the terms and conditions set forth herein.

Section 1. DEFINITION For purposes of this Agreement, “ FRANCHISEE ” shall mean V ERIZON prior to the closing of the PROPOSED TRANSACTION , and K NOLOGY on and after that date.

Section 2. TRANSFER OF FRANCHISE

2.1 The foregoing recitals are true and correct and are incorporated herein by reference.

2.2 The CITY has consented through the TRANSFER RESOLUTION to the PROPOSED TRANSACTION as specified in the TRANSFER APPLICATION , in consideration for the promises and performances of V ERIZON and THE C OMPANIES as expressed in this Transfer Agreement.

Section 3. ACCEPTANCE OF FRANCHISE OBLIGATIONS

3.2 V ERIZON and the COMPANIES agree that neither the PROPOSED TRANSACTION nor the CITY’s approval of the PROPOSED TRANSACTION shall in any respect relieve the F RANCHISEE or any of its successors in interest of responsibility for its past acts or omissions, known or unknown. V ERIZON hereby agrees that, except to the extent otherwise covered by separate agreements, it shall be liable for its past acts and omissions, known and unknown, including liability for any and all previously accrued but

November 20, 2003

Page 3

3.4 K NOLOGY represents and warrants that it has and will have complete and actual working control over the system.

3.5 K NOLOGY shall execute and submit to the CITY an Acceptance of Franchise by K NOLOGY in substantially the form attached hereto as Exhibit B.

3.6 K NOLOGY agrees to provide a guarantee from Knology, Inc. and K NOLOGY N EW M EDIA in the form specified in Exhibit A, which is acceptable to the CITY, guaranteeing performance by K NOLOGY of all of K NOLOGY ’s obligations under the FRANCHISE DOCUMENTS and this Transfer Agreement. The signed guarantees must be provided on or before the closing of the PROPOSED TRANSACTION .

Section 4. RESERVATION OF RIGHTS

4.1 The CITY reserves all rights not expressly granted in this Transfer Agreement, including without limitation those specified below.

4.2 The CITY waives none of its rights with respect to the FRANCHISEE ’, the C OMPANIES ’ or V ERIZON ’ S compliance with the requirements set forth in the FRANCHISE

November 20, 2003

Page 4

Section 5. REPRESENTATIONS AND WARRANTIES

November 20, 2003

Page 5

5.3 K NOLOGY represents and warrants that the P ROPOSED T RANSACTION will not have any adverse financial effect on the System, or adversely affect performance.

5.4 K NOLOGY represents and warrants that after the P ROPOSED T RANSACTION , K NOLOGY ’ S financial qualifications will be such as shall enable it to maintain and operate the System in the CITY.

5.5 K NOLOGY represents and warrants that the P ROPOSED T RANSACTION will not in any respect reduce the quality of customer service in the CITY.

5.6 K NOLOGY represents and warrants that the P ROPOSED T RANSACTION will not reduce the quality of existing system maintenance or repair.

Section 6. INDEMNIFICATION

6.3 V ERIZON shall indemnify, pay the cost of defense, including attorney’s fees, and hold harmless the CITY from all suits, actions or claims of any character brought on account of any injuries or damages received or sustained by any person, persons or property by or from the Franchise; or by, or in consequence or of any neglect in safeguarding the work under the Franchise; or on account of act or omission, neglect or misconduct of V ERIZON ; or by, or on account of, any claim or amounts recovered under the Workers’ Compensation Law or of any other laws, by-laws, ordinance, order or decree, except only such injury or damage as shall have been occasioned by the sole negligence of the CITY. Notwithstanding the foregoing, V ERIZON ’ S indemnification obligation hereunder shall be limited to suits, actions, or claims resulting from acts or omissions prior to the date of Transfer. The CITY shall give V ERIZON prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this section.

November 20, 2003

Page 6

Section 7. ADDITIONAL CONDITIONS

November 20, 2003

Page 7

addition to any other remedies the parties may have under this Transfer Agreement at law or equity.

Section 9. MISCELLANEOUS PROVISIONS.

9.1. Effective Date : This Transfer Agreement shall be effective and binding upon the signatories once it has been signed by all signatories.

9.6 Conforming Amendments to Franchise Agreement : K NOLOGY agrees to accept F RANCHISE amendments to the extent necessary to reflect the P ROPOSED T RANSACTION or the provisions of this Transfer Agreement.

9.7 Governing Law : This Transfer Agreement shall be governed in all respects by the law of the State of Florida.

END OF SUBSTANTIVE PROVISIONS

SIGNATURE PAGE AND EXHIBITS TO FOLLOW

November 20, 2003

Page 8

AGREED TO THIS 16 ^th DAY OF December, 2003.


Countersigned:		CITY OF CLEARWATER, FLORIDA

/s/ Brian J. Aungst	By:	/s/ William B. Horne II

Brian J. Aungst Mayor-Commissioner		William B. Horne II City Manager


Approved as to form:								Attest:

/s/ Pamela K. Akin								/s/ Cynthia E. Goudeau

Pamela K. Akin City Attorney								Cynthia E. Goudeau City Clerk


								Verizon

						By:

								[title]

								Knology New Media, Inc.

						By:

								[title]

								Knology Broadband of Florida, Inc.

						By:

								[title]

November 20, 2003

Page 1

EXHIBIT A

GUARANTEE OF PERFORMANCE

W HEREAS , Knology Inc. (“ GUARANTOR ”) is an indirect parent of the FRANCHISEE and will have a substantial interest in the FRANCHISEE , in the conduct of the FRANCHISEE , and in the FRANCHISE DOCUMENTS , which are incorporated herein by this reference;

Now, T HEREFORE , the GUARANTOR hereby unconditionally guarantees the due and timely performance of any and all obligations of the FRANCHISEE required by the FRANCHISE DOCUMENTS . The G UARANTOR also promises that no company in the chain of ownership between it and the F RANCHISEE will take any action that would prevent the F RANCHISEE from performing its obligations under the F RANCHISE . This Guarantee, unless terminated, substituted or canceled as hereinafter provided, shall remain in full force and effect for the term of the FRANCHISE , as it may be renewed or extended and as provided by the FRANCHISE DOCUMENTS ; provided, however, that upon the CITY’S prior written approval of a substitute guarantor, which approval shall not be unreasonably withheld, this Guarantee may be terminated, substituted or canceled upon written notice from the GUARANTOR to the CITY and the FRANCHISEE . Any such substitution of the GUARANTORS will be implemented in a manner that ensures that the substitute guarantee is in place and effective prior to or contemporaneously with the termination, substitution or cancellation of this Guarantee so that there is no breach in coverage.

END OF SUBSTANTIVE PROVISIONS, SIGNATURE PAGE TO FOLLOW

November 20, 2003

Page 2


Knology, Inc.

By:

Name:

Title:

STATE OF :

I HEREBY CERTIFY, that on this day of , , before me, the subscriber, a Notary Public of the State of Georgia, in and for CITY, Georgia, aforesaid personally appeared of and acknowledged the foregoing Acceptance of Franchise by Franchisee in CITY, Georgia, to be the act and deed of said company.

CITY, Georgia

AS WITNESS my hand and Notary Seal




Notary Public

My Commission Expires:

EXHIBIT B

ACCEPTANCE OF FRANCHISE BY THE FRANCHISEE

Knology (“ FRANCHISEE ” ) hereby accepts the franchise to erect, construct, maintain, and operate a cable system offered by the GTE Media Ventures Cable Franchise Ordinance, City of Clearwater Ordinance No. 6046-96 (“ FRANCHISE AGREEMENT ”), as assigned and modified by that Resolution No. 00-13 (“ FRANCHISE ORDINANCE ”). By this acceptance, FRANCHISEE agrees that, as set forth in the FRANCHISE ORDINANCE , it shall be bound by the terms and conditions of the FRANCHISE AGREEMENT , any amendments thereto, (collectively, the “ FRANCHISE DOCUMENTS ”).

The FRANCHISEE declares that it has carefully read all of the terms and conditions of the FRANCHISE DOCUMENTS , and accepts and agrees to abide by same.

E ND OF S UBSTANTIVE P ROVISIONS , S IGNATURE P AGE TO F OLLOW

AGREED TO THIS DAY OF , .


Knology, Inc.

By:

Name:

Title:

STATE OF :

I HEREBY CERTIFY, that on this day of , , before me, the subscriber, a Notary Public of the State of , in and for , , aforesaid personally appeared of and acknowledged the foregoing Acceptance of Franchise by Franchisee to be the act and deed of said company.

AS WITNESS my hand and Notary Seal

Notary Public

My Commission Expires:

[SEAL]

CITY OF CLEARWATER, FLORIDA

OFFICE OF THE CITY ATTORNEY

Phone Number (727) 562-4010

Fax Number (727) 562-4021

FAX TRANSMITTAL MEMORANDUM



DATE:		December 16, 2003

TO:		John Feehan

LOCATION:		Knology

FAX NO.:		706-645-0148

FROM:		Gina DeWitt

RE:		Resolution 03-41

NUMBER OF PAGES OF THIS MESSAGE (INCLUDING THIS PAGE): 15

MESSAGE: Here is the Resolution with attachments. I’ll send you an original agreement as soon as I get them.

ORDINANCE NO. 6046-96

AN ORDINANCE GRANTING TO GTE MEDIA VENTURES INCORPORATED THE PERMISSION TO OCCUPY MUNICIPAL STREETS AND RIGHTS-OF-WAY IN THE CITY OF CLEARWATER, FLORIDA, AS A MEANS OF PROVIDING CABLE TELEVISION SERVICES; PRESCRIBING THE TERMS AND CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS; PROVIDING FOR SEVERABILITY OF PROVISIONS; AND PROVIDING AN EFFECTIVE DATE.

BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA:

Section 1 — Findings

Pursuant to the procedures in the Cable Act (as defined in Section 3), and Section 166.046 of the Florida Statutes (Municipalities - Definitions; minimum standards for cable television franchises imposed upon counties and municipalities), the Grantor (as defined in Section 3) has held a public hearing where the following issues related to granting a cable television franchise to Grantee were considered: (i) the economic impact upon private property within the City; (ii) the public need for such franchise; (iii) the capacity of public rights-of-way to accommodate the cable system; (iv) the present and future use of the public rights-of-way to be used by the cable system; (v) the potential disruption to existing users of the public rights-of-way to be used by the cable system and the resultant inconvenience which may occur to the public; (vi) the financial ability of the franchise applicant to perform; and (vii) other societal interests as are generally considered in cable television franchising. The Grantor has determined to grant a new cable television franchise to GTE Media Ventures Incorporated (the “Grantee”) on the terms and conditions set forth in this Ordinance, and the Grantee agrees to such terms and conditions.

Section 2 — Short Title

This Ordinance shall be know and may be cited as the “GTE Media Ventures Cable Franchise.”

Section 3 — Definitions

For purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the present

tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory.

“Abandonment” means: (i) the cessation, by act or failure to act of the Grantee of the provision of all, or substantially all, of the Services then being provided over the System to Subscribers or the Grantor for twenty-four (24) or more consecutive hours, except if due to an event beyond the control of the Grantee; or (ii) the completion of any action described in Section 14 of this Ordinance without the prior written consent of the Grantor.

“Affiliated Person” means each Person who falls into one or more of the following categories: (i) each Person having, directly or indirectly, a Controlling Interest in the Grantee; (ii) each Person in which the grantee has, directly or indirectly, a Controlling Interest; (iii) each officer, director, general partner, limited partner holding an interest of twenty-five percent (25%) or more, joint venturer or joint venture partner, of the Grantee; and (iv) each Person, directly or indirectly, controlling, controlled by, or under common Control with, the Grantee; provided that “Affiliated Person” shall in no event mean the Grantor, the entity, if any, administering some or all of the Access Channels, any limited partner holding an interest of less than twenty-five percent (25%) of the Grantee, or any creditor of the Grantee solely by virtue of its status as a creditor and which is not otherwise an Affiliated Person by reason of owning a Controlling Interest in, being owned by, or being under common ownership, common management, or common Control with, the Grantee.

“Basic Service” means that level of Cable Services distributed over the Subscriber Network, which, at a minimum, shall include: (i) all Signals carried on the System in fulfillment of the requirements of Sections 614 and 615 of the Cable Act (47 U.S.C. §§ 534 and 535, respectively); (ii) any Access Channel programming required by this Ordinance to be provided to Subscribers; (iii) any Signal of any broadcast station provided by the Grantee to any Subscriber, except a Signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station; and (iv) any other Cable Services offered as basic service.

“Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521-611 (1991) and any amendments thereto, including amendments made by the Telecommunications Act of 1996, Pub. L. No. 104-104, 119 Stat. 56 (1996), and the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385,106 Stat. 1460 (1992), codified at 47 U.S.C. §§ 151-611 (1993) and any amendments thereto, including amendments made by the Telecommunications Act of 1996, Pub. L. No. 104-104, 119 Stat. 56 (1996), all of which, among other things, are amendments to the Communications Act of 1934, 47 U.S.C. §§ 151-611 (1991).

“Cable Service” means: (i) the one-way transmission to Subscribers of video programming or other programming service and (ii) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

“Cable System” means any 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 a community, but such term does not include (i) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right-of-way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter II of the Communications Act of 1934, except to the extent such facility is used in the transmission of video programming directly to subscribers; or (iv) any facilities of an electric utility used solely for operating its electric utility system.

“Channel” means a band of frequencies in the electromagnetic spectrum, or any other means of transmission (including, without limitation, optical fibers or any other means now available or that may become available), which is capable of carrying a video Signal, an audio Signal, a voice Signal, or a data Signal.

“Control” or “Controlling Interest” means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of the System, the Franchise or the Grantee.

“Economically and Technically Feasible and Viable” means capable of being provided: (a) through technology which is readily available with reasonable delivery schedules from two (2) or more sources of supply and has been demonstrated in actual operating conditions (not simply through tests or experiments) to operate in a workable manner, and (b) in a manner which has a reasonable likelihood of generating a reasonable return on the Grantee’s investment when measured over the remaining term of the Franchise.

“FCC” means the Federal Communications Commission, its designee, or any successor thereto.

“Franchise Area” means the area consisting of the corporate limits of the City of Clearwater, as its border may be changed from time to time.

“Grantee” means GTE Media Ventures Incorporated, a Delaware corporation, whose principal place of business is located at 600 Hidden Ridge HQE04G06, P.O. Box 152092, Irving, TX 75015-2092.

“Grantor” means the City of Clearwater, Florida, or, as appropriate in the case of specific provisions of this Ordinance, any board, bureau, authority, agency, commission, department of, or any other entity of or acting on behalf of, the City of Clearwater, Florida, or any officer, official, employee, or agent thereof, any designee of any of the foregoing, or any successor thereto.

“Gross Revenue” means all revenue, as determined in accordance with generally accepted accounting principles, including advertising revenue, which is received by the Grantee, by any Affiliated Person, and any other Person from or in connection with the distribution of any Service on

the System or the provision of any service related activity in connection with providing Service on the System. Gross Revenue shall not include the revenue of any Affiliated Person and other Person, including, without limitation, a supplier of programming of the Grantee, to the extent that said Revenue is also included in Gross Revenue of the Grantee. In no event shall Gross Revenue include any revenues otherwise classified as “Noncable Service” revenue under federal or state law or any revenue of the Grantee or any other Person which is received directly from the sale of merchandise through any Service distributed over the System (other than that portion of such revenue which represents or can be attributed to a Subscriber fee or a payment for the use of the System for the sale of such merchandise, which portion shall be included in Gross Revenue).

“Noncable Service” means any Service which is distributed over the System, other than a Cable Service.

“Pay Service” means any Cable Service offered on a per Channel or per program basis.

“Person” means any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit, but shall not mean the Grantor.

“Rights-of-Way” means all of the public streets, alleys, highways, waterways, bridges, easements, sidewalks and parks of the City of Clearwater, as they now exist or may be hereafter constructed, opened, laid out or extended within the present limits of the City, or in such territory as may hereafter be added to, consolidated or annexed to the City.

“Service” means any Cable Service, including any Basic Service, and any other related service, such as, the provision of any equipment and any installation of equipment or facilities and monthly use thereof, whether originated by the Grantee or any other Person, which is offered to any Person in conjunction with, or distributed over, the System.

“State-of-the-Art” or “State of the Art,” as applicable, means that level of technical or service performance, capacity and capability (including, but not limited to, plant or other equipment; construction techniques; customer service; facilities, equipment, systems and operations; and performance standards) which has been developed and demonstrated in the cable industry to be workable and Economically and Technically Feasible and Viable from time to time throughout the term of the Franchise.

“Subscriber” means any Person lawfully receiving any Service provided by the Grantee by means of or in connection with the System, whether or not a fee is paid for such Service.

“Subscriber Network” means that portion of the System over which Services are provided primarily to residential Subscribers.

“System” means the Cable System which is to be constructed or leased, operated, maintained and upgraded, as necessary, by the Grantee pursuant to this Ordinance, including, without limitation, all of Grantee’s rights to and interest in all real property, all tangible and intangible personal property, buildings, offices, furniture, leases, Subscriber lists, cables, amplifiers and all other electronic devises used in connection therewith and all of Grantee’s rights to and interest in all rights, contracts and understandings with regard to any matter related thereto.

Section 4 — Grant of Authority

(A) There is hereby granted by Grantor, to Grantee, the rights and privilege to construct, erect, operate, own and maintain, in, upon, along, across, above, over and under Rights-of-Way now laid out or dedicated, and all extensions thereof, and additions thereto in the Grantor, poles, wires, cables, underground conduits, manholes and other communication fixtures and utility structures necessary or proper for the maintenance and operation of the System in accordance with the provisions of this Ordinance; and in addition, so to use and operate similar facilities or properties including, but not limited to, any public utility, rented or leased from other persons, including, but not limited to, other grantees franchised or permitted to do business in the City. This Franchise is awarded subject to all applicable City ordinances and regulations, provisions of general or special laws of Florida, and the federal laws and regulations.

(B) This Franchise is for use by Grantee of Grantor’s Rights-of-Way to provide Cable Services only and only within the Franchise Area.

(C) The Franchise is nonexclusive. Nothing in this Ordinance shall affect the right of the Grantor to grant to any Person, or to itself, a franchise, consent, or right to occupy and use the Rights-of-Way, or any part thereof, for the construction, operation, or maintenance of all or any part of a Cable System within the Franchise Area or for any other purpose.

(D) This Section 4(D) shall be applicable if the Grantor exercises its right to grant to any third party one or more franchises for the construction, operation or maintenance of a cable system pursuant to the Cable Act, and shall be implemented consistent with Section 166.046 of the Florida Statutes (Municipalities - Definitions; minimum standards for cable television franchises imposed upon counties and municipalities).

If the Grantor exercises its right to grant to any third party one or more franchises (hereinafter “Additional Cable Franchise Ordinance”) for the construction, operation or maintenance of a Cable System pursuant to the Cable Act and the Grantee believes the Additional Cable Franchise Ordinance pursuant to which such Additional Cable Franchise Ordinance is granted bestows benefits or imposes burdens on the franchisee which, on balance, are materially more advantageous to such third party than the benefits bestowed and burdens imposed on the Grantee by this Ordinance are to the Grantee, then the Grantee may request that the Grantor make a determination to such effect and, in the event of such a determination, renegotiate the terms and conditions of this Ordinance as provided below. The Grantee may only request such a determination if the Grantee is in substantial compliance with the material provisions of this Ordinance.

In the event of such a request, the Grantor shall determine, under its standard procedures, whether the Additional Cable Franchise Ordinance bestows benefits or imposes burdens on the third party which, on balance, are materially more advantageous to the third party than the benefits and burdens imposed by this Ordinance are to the Grantee.

In making a determination under this subsection, the Grantor may consider factors such as, but not limited to: (i) the term of each franchise; (ii) the franchise fee to be paid by each franchisee, including the Grantee; (iii) the number and density of dwelling units to be served; (iv) differences in construction, operational and maintenance costs; (v) differences in required system characteristics, including state-of-the-art requirements; (vi) differences in service obligations, including public, educational and governmental access and institutional service requirements; (vii) differences in permitted company fees and charges; and (viii) such other factors and considerations as it considers to be relevant to an inquiry into the overall economic comparability of the agreements.

If the Grantor determines that the Additional Cable Franchise Agreement bestows benefits and imposes burdens on the third party which, on balance, are materially more advantageous to the third party than the benefits bestowed and burdens imposed by this Ordinance are to the Grantee, then upon the Grantee’s request, the Grantor and the Grantee shall enter into good faith negotiations to seek to modify this Ordinance to bestow benefits and impose burdens which, on balance, create overall economic comparability between this Ordinance and the Additional Cable Franchise Agreement.

(E) Nothing in this Ordinance shall be construed to prohibit the Grantor from (i) operating as a multichannel video programming distributor in the Franchise Area, notwithstanding the granting of one or more franchises by the Grantor or (ii) requiring the Grantor to secure a franchise to operate as a multichannel video programming distributor.

(F) Nothing in this Ordinance shall (i) abrogate the right of the Grantor to perform any public works or public improvements of any description, (ii) be construed as a waiver of any codes or ordinances of the Grantor or of the Grantor’s right to require the Grantee or any Person utilizing the System to secure the appropriate permits or authorizations for such use, or (iii) be construed as a waiver or release of the rights of the Grantor in and to the Rights-of-Way. In the event that all or part of the Rights-of-Way within the Franchise Area are eliminated, discontinued and closed, the Franchise shall cease with respect to such Rights-of-Way upon the effective date of the final action of the Grantor with respect thereto.

(G) Nothing in this Ordinance authorizes the Grantee to provide noncable services. Consistent with applicable law, the Grantee may petition the Grantor for the authority to provide noncable services, and the Grantor may grant such authority on terms and conditions that the Grantor reasonably determines are appropriate in the circumstances.

Section 5 — Term of Franchise

(A) The Franchise and rights herein granted shall take effect and be in force from and after the final passage hereof, as required by law and upon the filing of an acceptance by Grantee of all the terms thereof with the Grantor and shall, unless sooner terminated pursuant to this Ordinance or applicable law, continue in force and effect for a term of ten (10) years after the effective date of this Franchise.

(B) Subject to Section 626 of the Cable Act (47 U.S.C. § 546), the Grantor reserves the right to grant or deny renewal of the Franchise.

Section 6 — Compensation and Other Payments

(A) As compensation for the Franchise, the Grantee shall pay, or cause to be paid, to the Grantor the amounts set forth in this Section 6(A)–

(1) The Grantee shall pay to the Grantor franchise fees of five percent (5%) or the maximum amount permitted by the Cable Act if hereafter adopted by resolution of the Grantor.

(2) All such payments of franchise fees shall be made on a quarterly basis and shall be remitted simultaneously with the submission of the Grantee’s quarterly report required pursuant to Section 6(A)(3).

(3) The Grantee shall submit to the Grantor a report, in such form and containing such detail as the Grantor shall reasonably require, not later than thirty (30) days after the last day of each quarter throughout the term of this Ordinance setting forth the Gross Revenue for the preceding quarter.

(4) No acceptance of any franchise fee payment by the Grantor shall be construed as an accord and satisfaction that the amount paid is in fact the correct amount for a release of any claim that the Grantor may have for further or additional sums payable under this ordinance, and all amounts paid shall be subject to audit and recomputation by the Grantor.

If, as a result of such audit or any other review, the Grantor determines that the Grantee has underpaid its fees in any twelve (12) month period by ten percent (10%) or more, then, in addition to making full payment of the relevant obligation, the Grantee shall reimburse the Grantor for all of the reasonable costs associated with the audit or review, including all reasonable out-of-pocket costs for attorneys, accountants, and other consultants.

(5) If the Grantee collects from Subscribers any amounts to be paid to leased access programmers for the provision of Services on the System that would not otherwise be

included in the definition of Gross Revenue, the Grantee shall deduct the same percentage from such amounts as the then-applicable franchise fee percentage pursuant to Section 6(A)(1) and include such deducted amounts in its payment to the Grantor pursuant to this Section 6(A) and include such payments in its report pursuant to Section 6(A)(3).

(6) The Grantee shall ensure, through contract or other arrangement, that any Person other than the Grantee who collects from Subscribers amounts that would constitute Gross Revenue if received directly by the Grantee (e.g., from a Person who leases a channel pursuant to Section 612 of the Cable Act) is required to remit to the Grantor quarterly a percentage of such amounts collected which is equal to the then-applicable franchise fee. Such contract or arrangement must also require the Person to submit a quarterly report which meets the requirements of Section 6(A)(3) and must entitle the Grantor to enforce the fee and reporting requirements directly against the Person.

(B) The parties agree that the compensation and other payments to be made pursuant to this Section 6 and any other provision of this Ordinance are not a tax and are not in the nature of a tax and are in addition to any and all taxes of general applicability or other fees or charges (including any fees or charges which may be imposed on the Grantee for the use of poles, conduits or similar facilities that may be owned or controlled by the Grantor) which the Grantee or any Affiliated Person shall be required to pay to the Grantor.

(C) If any payment required by this Ordinance is not actually received by the Grantor on or before the applicable date fixed in this Ordinance or by the Grantor, the Grantee shall pay interest thereon, from the due date to the date paid at a rate of one percent (1%) per month, compounded monthly, for the period of delinquency.

(D) In the event the Grantee continues to operate all or any part of the System after the term of the Franchise, then the Grantee shall continue to comply with all applicable provisions of this Ordinance, including, without limitation, all compensation and other payment provisions of this Ordinance, throughout the period of such continued operation, provided that any such continued operation shall in no way be construed as a renewal or other extension of the Franchise.

(E) The Grantee has paid or arranged to pay, in a manner satisfactory to the Grantor, a grant in the amount of Fifty Thousand Dollars ($50,000.00) to be used to reimburse the reasonable costs incurred by the Grantor for the services and expenses of third parties (including, but not limit to, attorneys and other consultants) in connection with the award of the Franchise effected by this Ordinance, or by Grantor for any other lawful purpose. The Grantee shall pay, in a manner satisfactory to the Grantor, an amount equal to the costs and expenses which the Grantor incurs in the future for the services of third parties (including, but not limited to, attorneys and other consultants) in connection with any future renegotiation, transfer, amendment, renewal or other modification of this Ordinance or the Franchise (where such action is initiated or supported by the Grantee or an Affiliated Person) at such time and in such manner as the Grantor shall specify.

Section 7 — The System

(A) The Grantee shall construct, operate, maintain, and upgrade the System as provided in this Ordinance.

(B) The Grantee shall build the System on the schedule and as otherwise provided in Appendix A. Upon completion of the System, it shall be capable of providing at least seventy-nine (79) activated downstream video Channels, and a minimum upstream capacity of thirty-five (35) Mhz, an emergency override mechanism, and the other characteristics set forth on Appendix A.

(C) The Grantee shall construct, operate, maintain and upgrade the System such that it is capable of transmitting and receiving signals to and from any other Cable System in the City of Clearwater.

(D) The Grantee shall comply with the terms set forth in Appendix B in connection with all work involved in the construction, operation, maintenance, repair, upgrade, and removal of the System, in addition to any other requirements or procedures reasonably specified by the Grantor. All work involved in the construction, operation, maintenance, repair, upgrade, and removal of the System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. If, at any time, it is determined by the Grantor or any other agency or authority of competent jurisdiction that any part of the System, including, without limitation, any means used to distribute Signals over or within the System, is harmful to the health or safety of any Person, then the Grantee shall, at its own cost and expense, promptly correct all such conditions.

(E)

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates