EXHIBIT 10.29
SOUTHERN LANCASTER COUNTY SC
FALCON CABLE TELEVISION FRANCHISE AGREEMENT
TABLE OF CONTENTS
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1. INTENT AND AUTHORITY 1
Finding (1); Authority to Grant Franchise (1)
2. DEFINITIONS 1
3. MISCELLANEOUS GENERAL PROVISIONS. 6
Short Title (6); Police Powers (6); Separability (6); Adjustment of
Dollar Amounts (6); Applicability (6); Confidentiality (6); Notices
(6)
THE FRANCHISE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
4. INFORMATION REQUIRED/RECEIVED FROM GRANTEE 7
5. GRANT OF FRANCHISE 7
Consistency with Federal and State Laws (7); General Ordinances (8)
6. DURATION 8
Term (8); Renewal (9)
7. USE OF STREETS 9
8. SYSTEM UPGRADE 12
9. REMOVAL 14
10. RIGHT OF GRANTORS TO PURCHASE THE SYSTEM 15
SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
11. UNIVERSAL SERVICE 16
Line Extension Policy (16)
12. GENERAL REQUIREMENTS 16
Repairs (17); Emergency Alert System (17)
13. CUSTOMER SERVICE 18
FCC Standards (18); Customer information (18); Grantee Rules (18);
Local business office (18); 24-hour service (18); Prompt repair (18);
Equipment maintenance (19); Deposits (19); Disconnection (19);
Security deposit (19); Refunds (19); Late fees (20)
14. TECHNICAL STANDARDS 20
Color, Stereo, and VIT Signals (21)
15. COMMUNITY, EDUCATIONAL AND GOVERNMENTAL ACCESS 21
Grantee use of Unused Access Channel (21); Support for Use of Access (22)
16. SERVICE TO GRANTORS 22
17. PROGRAMMING 23
REGULATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
18. REGULATION OF THE FRANCHISE 23
19. TRANSFERS 24
20. BOND 25
21. INDEMNIFICATION 25
22. INSURANCE 26
23. REPORTS 27
Contemporaneous reports (27); Annual Report (27); Special reports (28)
24. RATES 28
Promotional rates (28)
25. FRANCHISE FEES 29
26. RECEIVERSHIP AND FORECLOSURE 30
27. ENFORCEMENT 31
Termination (31); Liquidated Damages (32); Forbearance (33); Force
Majeure (33)
PAGE 1
KNOW ALL MEN BY THESE PRESENTS that the Town of Heath Springs, the Town of
Kershaw, and Lancaster County, South Carolina, hereinafter singly and
collectively the Grantors, and Enstar Income Program 0000-0, X.X. d.b.a. Falcon,
hereinafter the Grantee, in order to provide to Grantee a non-exclusive
franchise to operate a cable television system, do mutually agree as follows.
INTRODUCTION
1. INTENT AND AUTHORITY
a. Finding : The Grantors find that the development of communications
systems such as cable television has the potential of having great
benefit and impact upon the residents of Heath Springs, Kershaw, and
Lancaster County. Because of the complex and rapidly changing
technology associated with cable television, the Grantors further
finds that the public convenience, safety and general welfare can best
be served by reasonable regulations to attain the best possible public
interest and public purpose in these matters.
b. Authority to Grant Franchise: Grantors shall comply with any
requirements of the State or Federal governments so as to maintain
their authority to grant a Franchise.
2. DEFINITIONS
For the purposes of this Franchise Agreement the following terms, phrases,
words, and their derivations shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense include the
future, words in the plural number include the singular number, words in the
singular number include the plural number, and the use of any gender shall be
applicable to all genders whenever the sense requires. The words "shall" and
"will" are mandatory and the word "may" is permissive. Words not defined shall
be given their common and ordinary meaning.
a. "Area of dominant interest" has the same meaning given it in FCC
regulations.
b. "Cable Act" means the Cable Communications Policy Act of 1984 (Public
Law No. 98-549, 47 USC 521 (Supp.)) as it may be amended or
superseded.
c. "Cable Communications System" or "System," also referred to as "Cable
Television System," "Cable System," "CATV System," shall mean a
facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is
designed and constructed for the purpose of providing cable service
within the Franchise Area.
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d. "Cable service" means the provision to subscribers of video
programming or information Grantee makes available to all subscribers
generally and subscriber interaction, if any, which is required for
the selection of such programming or information.
e. "Cable TV Administrator" shall mean the Mayor of Heath Springs, the
Administrator of Kershaw, or the County Administrator, or their
designee, as applicable, provided that the said administrator shall
notify Grantee in writing the name of such designee(s).
f. "Channel" means a portion of the electromagnetic frequency spectrum
which is used in the cable system and which is capable of delivering a
television channel as defined by the FCC to subscribers.
g. "Community channel" or "community access channel" means any channel
designated or dedicated for use by the general public or noncommercial
organizations which is made available for use without charge on a
first-come, first-served, nondiscriminatory basis. Such channels are
identical to "public access channels" as defined in the Cable Act.
h. "Educational channel" or "educational access channel" means any
channel where educational programs are the only designated use.
i. "Fair market value" means the price that a willing buyer would pay to
a willing seller for a going concern.
j. "FCC" means the Federal Communications Commission or any legally
appointed or elected successor.
k. "Franchise" shall mean the right granted by this agreement to erect,
construct, reconstruct, operate, dismantle, test, use and maintain a
cable communications system in the Grantors' jurisdictions.
l. "Franchise Area" or "Service Area" shall mean the area within the
present corporate limits of Heath Springs and Kershaw, and any area
subsequently annexed by either of them, and the unincorporated portion
of Lancaster County, unless Grantors shall approve a smaller area
pursuant to section 12.(b).
m. "Franchise fee" means any tax, fee or assessment of any kind imposed
by a franchising authority or other governmental entity on a Grantee
solely because of its status as such. The term "Franchise Fee" does
not include:
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(1) Any tax, business license, fee, or assessment of general
applicability (including any such tax, license, fee, or
assessment imposed on both utilities and cable operators or their
services but not including a tax, fee or assessment which is
unduly discriminatory against Grantee);
(2) Capital costs which are required by the Franchise to be incurred
by Grantee for community, educational or governmental access
facilities;
(3) Requirements or charges incidental to the awarding or enforcing
of the Franchise, including payments for bonds, security funds,
letters of credit, insurance, indemnification, penalties, or
liquidated damages; or
(4) Any fee imposed under Xxxxx 00, Xxxxxx Xxxxxx Code.
n. "Government channel" or "government access channel" means any channel
specifically designated or dedicated for government use.
o. "Grantee" shall mean Enstar Income Program 0000-0, X.X. d.b.a. Falcon,
its agents, employees, lawful successors, transferees or assignees.
p. "Grantors" shall mean the Town of Heath Springs, the Town of Kershaw,
and Lancaster County of the State of South Carolina, or any one or two
of them. The Grantors' Councils are the governing bodies of the
Grantors.
q. "Gross Revenues derived from the operation of the system" shall mean
all cash, credits, property of any kind or nature or other
consideration derived directly or indirectly by a Grantee, its
affiliates, subsidiaries, parents, and any other person or entity in
which the Grantee has a financial interest or which has a financial
interest in the Grantee, including but not limited to:
(1) revenue from all charges for cable services provided to
subscribers (including leased access fees), less refunds but
including the full amount recovered by any collection agency;
(2) revenue from all charges for the insertion of commercial
advertisements upon the Cable Television system;
(3) revenue from all charges for the leased use of studios;
(4) revenue from all charges for the installation, connection and
reinstatement of equipment necessary for the utilization of the
Cable Television System and the provision of subscriber and other
services;
(5) the sale, exchange or use or cable cast of any programming
developed for community use or institutional users;
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(6) valued at retail price levels, the value of any goods, services,
or other remuneration in non-monetary form, received by the
Grantee or others described above in consideration for
performance by a Grantee or others described above of any
advertising or other service in connection with the Cable
Television System; and
(7) revenues from any television programming or other services
offered to the citizens of Grantors within the term of the
Franchise by any means of delivery whatsoever where such
programming or services are provided by means of the System or
any part thereof.
Such revenues shall be subject to a Franchise Fee once and only once and
revenues transferred to a related entity shall not be subject to a Franchise Fee
a subsequent time. This definition shall not operate to result in an amount for
gross revenues that is less than the amount subject to South Carolina sales tax.
The phrase "financial interest" as used in this definition shall include
but not be limited to the following, if and to the extent derived from the
operation of the cable system (a) Any contract in which the Grantee or any
named owner thereof is to receive a percentage of the gross revenues and/or
a percentage of the net income of the other party to the transaction by
reason of the activities encompassed by said contract; (b) Any debt
relationship in which the Grantee or any named owner thereof as debtor
borrows funds at a rate more advantageous than that generally available to
similarly situated entities of similar credit worthiness; (c) Any debt
relationship in which the Grantee or any named owner thereof as creditor
receives a rate of interest exceeding that which would otherwise be paid by
a similarly situated debtor of similar credit worthiness; (d) Any debt
relationship which has conversion privileges to a form of equity of the
nature described in the preceding subsection.
The phrase "derived from the system" as used in this definition shall not
include: (a) business services provided to cable television entities to the
extent such revenues are subject to another Franchise; (b) business
services provided to non-cable television entities provided that Grantee
receives reasonable consideration for such services; (c) any activity,
product or service which cannot be provided by means of the system,
provided that the value of use of the system for marketing or otherwise
shall be included.
r. "Installation" shall mean the connection of the system to subscribers'
terminals.
s. "Leased Access" shall mean the use on a fee-for-service basis of the
Cable Television System by business enterprises (whether profit,
nonprofit or governmental) to render services to the citizens of the
Grantors and shall include without limitation all use pursuant to
Section 612 of the Cable Act.
PAGE 5
t. "Leased access channel" or "commercial leased channel" means any
channel designated or dedicated for use by persons unaffiliated with
the Grantee in accordance with the Cable Act.
u. "Person" means any individual, corporation, partnership, association,
joint venture or organization of any kind and the lawful trustee,
successor, assignee, transferee or personal representative thereof.
v. "Reasonable notice" shall be written notice addressed to either
Grantors or Grantee at its respective principal office within the
Grantors or such other office as the party has designated to the other
as the address to which notice shall be transmitted to it, which
notice shall be certified and postmarked not less than ten (10)
business days prior to that day in which the party giving such notice
shall commence any action which requires the giving of notice. In
computing said five (5) days, holidays recognized by the Grantors
shall be excluded.
w. "Resident" means any person residing in the Franchise Area.
x. "Sale" shall include any sale, exchange, barter or offer for sale.
y. "School" means any public, private or nonprofit educational
institution, including primary and secondary schools, colleges and
universities.
z. "Service area" means the "Franchise Area."
aa. "State" means the State of South Carolina.
bb. "Street" shall mean the public ways, including the surface of and the
space above and below any public street, road, highway, freeway,
easement, lane, path, alley, court, sidewalk, parkway, or driveway now
or hereafter existing as such within the Franchise Area.
cc. "Subscriber" means any person who legally receives any one or more of
the services provided by the Cable Communications System.
dd. "System" means "Cable Communications System."
ee. "Upstream signal" means a signal originating from a terminal to
another point in the cable television system, including video, audio
or digital signals for any purpose.
ff. "User" means a person or organization utilizing channel or equipment
and facilities for the purpose of production and/or transmission of
material, as contrasted with receipt thereof in a subscriber capacity.
PAGE 6
3. MISCELLANEOUS GENERAL PROVISIONS
a. Short Title: This agreement shall be known and may be cited as the
"Falcon Cable TV Franchise Agreement."
b. Police Powers: Nothing in this shall be construed as an abrogation by
the Grantors of any of their police powers.
c. Separability: If any Section, subsection, sentence, clause, phrase, or
portion of this Franchise Agreement is for any reason held invalid or
unconstitutional by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision and
such holding shall not affect the validity of the remaining portions
hereof.
d. Adjustment of Dollar Amounts: All amounts stated in specific dollars
in this agreement may be adjusted from time-to-time by Grantors
Councils based upon the Consumer Price Index or some other reasonable
method.
e. Applicability: Grantee may not avoid compliance with the terms and
provisions of this agreement by contracting for any service. Grantee
shall not utilize an "open video system" or its equivalent to avoid
application of the Franchise to Grantee's operations.
f. Confidentiality: To the maximum extent permitted by applicable law,
the Grantors shall disclose to only those Grantors officials whose
positions reasonably require knowledge of such information and shall
otherwise keep confidential any information specifically designated by
Grantee in writing to be confidential. In the event that a request for
disclosure is made pursuant to a Freedom of Information Act or
otherwise reasonably requiring a response by the Grantors, the
Grantors shall disclose the fact that the Grantee claims a right of
confidentiality with respect to such information and shall promptly
advise the Grantee regarding such request. The Grantors shall further
resist such request only if the Grantee agrees in writing to bear the
expense of such resistance. Failure of Grantee to agree to bear such
expense in a timely fashion in order for Grantors to meet their legal
obligation to the party requesting such information shall be construed
as Grantee relinquishing any claim of confidentiality.
g. Notices: All notices, requests, demands, or other communications
hereunder shall be in writing and shall be deemed to have been duly
given and delivered by mailing, first class, postage pre-paid, return
receipt requested, as follows:
(1) To Grantors: Mayor, Town of Heath Springs, P. O. Xxx 00, Xxxxx
Xxxxxxx XX 00000; Xxxxxxxxxxxxx, Xxxx xx Xxxxxxx, Xxx 000,
Xxxxxxx, XX 00000; Administrator, Lancaster County, P. O. Xxx
0000, Xxxxxxxxx, XX 00000.
PAGE 7
(2) To Grantee: Director of Government Relations, Enstar Income
Program 1984-1, L.P., c/o Falcon, 00000 Xxxxxxxx Xxxxxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx, XX 00000.
THE FRANCHISE
4. INFORMATION REQUIRED/RECEIVED FROM GRANTEE
Grantors acknowledge receipt and sufficiency of the following:
a. a clear description of the identity of the Grantee including but not
limited to the name of the Grantee, the address of the Grantee, the
nature of the business entity, the name(s) and address(es) of each
person owning one percent (1%) or more of the business entity, and
evidence of the compliance of the business entity with all applicable
law;
b. an affidavit that the Grantee is not in collusion with any potential
applicant for a Cable TV Franchise and that Grantee is not a
participant in any other application for a cable TV Franchise by the
Grantors;
c. a non-refundable fee of $5,000.
Information to be Public : Subject to the provisions of section 3.f, all
information described in this section shall be available for public inspection
at places designated by the Grantors.
5. GRANT OF FRANCHISE
x. Xxxxx : Grantors hereby grant to Grantee a nonexclusive, revocable
Franchise to construct, operate, maintain, and reconstruct, a Cable
Communications System within the Franchise Area. Said Franchise
constitutes both a right and obligation to provide the services of a
Cable Communications System. Grantors specifically reserve the right
to grant, at any time, such additional Franchises for Cable
Communications Systems as they deems appropriate, and issuance of one
or more Franchises shall not be construed as limiting the Grantors'
right to provide Cable Television services themselves or in concert
with any other entity.
b. Consistency with Federal and State Laws: The Franchise granted hereby
is intended to be consistent with federal laws and regulations and
state general laws and regulations. In the event of conflict between
the terms and conditions of the Franchise and the terms and conditions
on which the Grantors can grant a Franchise, the general law and/or
statutory requirements shall, without exception, control.
PAGE 8
c. General ordinances: The Franchise granted hereby is made subject to
general ordinance provisions now in effect or hereafter made
effective. Nothing in the Franchise shall be deemed to waive the
requirements of the other codes and ordinances of the Grantors
regarding permits, fees to be paid or manner of construction. Grantee
shall be liable for all taxes, business licenses, fees, or other
impositions as any other business having its place of business in the
Grantors' jurisdiction.
d. The franchise granted herein shall be terminated only as authorized
and permitted by applicable federal and state law and this agreement
and upon written notice given not less than 120 days prior to the
effective date of termination.
e. The Grantors shall not grant another franchise for cable television
service in the franchise area, nor shall they undertake to provide
cable television services in competition with Grantee, on terms or
conditions more favorable or less burdensome to the operator than
those applied to Grantee herein under this Franchise. In the event
that Grantors provide cable service, they shall include in charges to
their subscribers the equivalent of the franchise fees Grantee is
required to pay pursuant to this Franchise. If Grantors grant another
franchise for cable television service in the franchise that is less
favorable or more burdensome to the operator than those applied to
Grantee under this Franchise Agreement, Grantee shall become subject
to such provisions in a reasonable time as determined by Grantors.
6. DURATION
a. Term The term of this Franchise and all rights, privileges,
obligations, and restrictions pertaining thereto shall be ten (10)
years from March 15, 1998, which shall be the effective date hereof,
unless terminated sooner or extended as hereinafter provided, and all
Grantee's obligations, except the obligation to provide a Cable
Communications System under section 5, shall survive expiration of the
Franchise. During the final two years of the initial term of this
Franchise, Grantors shall review the technology employed by Grantee to
determine whether the technology is substantially equal to the
technology employed by other systems of similar size managed by or
affiliated at that time with Grantee, its general partner or
management company in North or South Carolina.
(1) Unless Grantors determine that the technology employed by Grantee
at that time is not substantially equal to the technology
employed by Grantee, its general partner or management company in
North or South Carolina, the term of this franchise shall be
automatically extended for an additional five (5) years.
(2) In the event that Grantors reasonably determine that the
technology employed by Grantee at that time is not substantially
equal to the technology employed at that time by other systems
managed by or affiliated with Grantee, its general partner or
management company in North or
PAGE 9
South Carolina, Grantee shall upgrade its technology to make
it substantially equal to the technology employed by such
other systems within eighteen (18) months of the notice to
Grantee or within ten (10) years of the effective date hereof,
whichever is later. The term of this franchise shall be
extended to such deadline date. If Grantee completes the
upgrade required by this subsection, then the term of this
franchise shall be extended as provided in subsection (1) of
this section.
(3) If Grantee wishes to appeal the determination of Grantors
described in subsection (1) of this section, its sole recourse
shall be to a board of three members, all three of whom shall be
experts in cable television franchising, one appointed by
Grantee, one appointed by Grantors, and one selected by the other
two members. Grantee shall initiate such appeal by appointing one
such person and serving written notice upon Grantors of such
appointment. Within forty-five (45) days after receipt of such
notice, Grantors shall serve upon Grantee a notice of the
appointment of a member. If Grantors shall fail to make such
appointment or if the two members appointed by the parties shall
fail to select a third member within thirty (30) days after the
appointment of the second member, the Court of Common Pleas for
Lancaster County may, upon application of either party, appoint
any member or members not duly appointed in accordance with the
foregoing. The board may obtain such records of Grantee as it may
determine to be relevant to its assignment and shall make its
determination within a reasonable time. Members of the board
shall be entitled to reasonable compensation to be paid by the
parties equally.
b. Renewal: Upon expiration of the franchise term or any extension
thereof, the right of Grantee respecting renewal shall be determined
in accordance with applicable law in effect at that time.
7. USE OF STREETS
a. For the purposes of operating and maintaining a Cable Communications
System in the Franchise Area, Grantee may erect, install, construct,
repair, replace, reconstruct and retain in, on, over, under, upon,
across and along the streets within Grantors such lines, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
pedestals, attachments and other property and equipment as are
necessary and appurtenant to the operation of the Cable System,
provided that all applicable permits are applied for and granted, all
fees paid and all other of Grantors codes and ordinances are otherwise
complied with.
b. Plans to be approved : Prior to construction or alteration, Grantee
shall in each case file plans with the Grantors and receive written
approval of such plans.
PAGE 10
c. Coordination : Construction, installation and maintenance of the Cable
Television System shall be performed in an orderly and workmanlike
manner, and in close coordination with public and private utilities
serving the Franchise Area following accepted construction procedures
and practices and working through existing coordinating committees and
organizations or such organizations as may be established. All cable
and wires shall be installed, where possible, parallel with electric
and telephone lines, and multiple cable configurations shall be
arranged in parallel and bundled with due respect for engineering
considerations.
d. All transmission and distribution structures, lines, and equipment
erected by the Grantee within the Franchise Area shall be so located
as to cause minimum interference with other proper uses of streets,
alleys, and other public ways and places, and to cause minimum
interference with the rights and reasonable convenience of property
owners who adjoin any of the said streets, alleys or other public ways
and places. Grantee shall make use of existing poles and other
facilities available to Grantee. Grantee shall individually notify all
residents significantly adversely affected by proposed construction
prior to the commencement of that work.
e. Notwithstanding the above grant to use streets, no street shall be
used by Grantee if Grantors determine that such use is inconsistent
with the terms, conditions or provisions by which such street was
created or dedicated, or is presently used.
f. Nothing in this Franchise shall be deemed to compel the Grantors to
maintain or retain any of their property any longer than, or in any
fashion other than, in the Grantors' judgment, their own business
needs may require. The Grantors shall not be required to assume any
responsibility for the securing of any rights-of-way or easements, nor
shall the Grantors be responsible for securing any permits or
agreements with other persons or utilities.
g. In case of disturbance of any street, sidewalk, alley, public way, or
paved area, the Grantee shall, at its own cost and expense and in a
manner approved by the Grantors, replace and restore such street,
sidewalk, alley, public way, or paved area in as good a condition as
before the work involving such disturbance was done.
h. Existing poles : Grantee shall use to the fullest extent possible
existing poles or wire-holding structures. To that end Grantee is
authorized to enter into pole-sharing agreements with other users of
the public ways or to enter into agreements for other such entities to
use portions of Grantee's space on shared poles or structures or to
enter into agreements to use portions of other entity's space on
shared poles or structures.
PAGE 11
i. Erection of Poles : This Franchise shall not be deemed to expressly or
by implication authorize the Grantee to construct or install poles or
wire-holding structures within streets for the purpose of placing
cables, wires, lines or otherwise, without the written consent of the
Grantors. Such consent shall be given upon such terms and conditions
as the Grantors may prescribe which shall include a requirement that
the Grantee perform, at its sole expense, all tree trimming required
to maintain the poles clear of obstructions.
j. With respect to any poles or wire-holding structures which the Grantee
is authorized to construct and install within streets, a public
utility or public utility district serving the Grantors may, if denied
the privilege of utilizing such poles or wire-holding structures by
the Grantee, apply for such permission to the Grantors Council. If the
Grantors Council finds that such use would enhance the public
convenience and would not unduly interfere with the Grantee's
operations, the Grantors Council may authorize such use subject to
such terms and conditions as it deems appropriate. Such authorization
shall include the condition that the public utility or public utility
district pay to the Grantee any and all actual and necessary costs
incurred by the Grantee in permitting such use.
k. Grantee shall have the right to remove, trim, cut and keep clear of
its poles, towers, wires and other overhead appliances and equipment,
the trees in and along the streets within the Franchise Area;
provided, however, that in the exercise of such right, Grantee shall
not cut, remove, trim or otherwise injure such trees to any greater
extent than is necessary for the installation, maintenance and use of
such poles, towers, wires or other overhead appliances.
l. With respect to any cables, wires and other like facilities
constructed and installed by the Grantee above ground, the Grantee
shall, at its sole expense, reconstruct and reinstall such cables,
wires or other facilities underground pursuant to any project under
which the cables, wires or other like facilities of all such utilities
are placed underground within an area.
m. Undergrounding : Except as hereinafter provided, in all areas of the
Franchise Area where the cables, wires and other like facilities of
any public utilities or public utility districts are placed
underground, Grantee shall construct and install its cables, wires,
and other facilities underground. Amplifier boxes and pedestal mounted
terminal boxes may be placed above ground if existing technology
reasonably requires, but shall be of such size and design and shall be
so located as not to be unsightly or unsafe. In any area of the
Grantors where there are certain cables, wires and other like
facilities of a public utility or public utility district underground
and at least one operable cable, wire or like facility of a public
utility or public utility district suspended above the ground from
poles the Grantee may construct and install its cables, wires, and
other facilities from the same poles.
PAGE 12
n. Relocation : If the Grantors or other public agency acting in concert
with the Grantors elects to alter, repair, realign, abandon, improve,
vacate, reroute or change the grade of any street or to replace,
repair, install, maintain, or otherwise alter any above ground or
underground cable, wire conduit, pipe, line, pole, wire-holding
structure, structure, or other facility utilized for the provision of
utility or other services or transportation of drainage, sewage or
other liquids, the Grantee, shall, except as otherwise hereinafter
provided, at its sole expense remove or relocate as necessary its
poles, wires, cables, underground conduits, manholes and any other
facilities which it has installed. If such removal or relocation is
required within the subdivision in which all utility lines, including
those for the Cable Television System were installed at the same time,
the entities may decide among themselves who is to bear the cost of
relocation; provided that the Grantors shall not be liable to the
Grantee for such costs except to the extent specifically agreed to by
the Grantors. Regardless of who bears the costs, the Grantee shall
take action to remove or relocate at such time or times as are
directed by the agency or company undertaking the work. Reasonable
advance written notice shall be mailed to the Grantee advising the
Grantee of the date or dates removal or relocation is to be
undertaken.
o. Movement of Buildings : Grantee shall, upon request by any person
holding a building moving permit, Franchise or other approval issued
by the Grantors, temporarily remove, raise or lower its wire to permit
the movement of buildings. The expense of such removal, raising or
lowering shall be paid by the person requesting same, and Grantee
shall be authorized to require such payment in advance. Grantee shall
be given not less than seven (7) days oral or written notice to
arrange for such temporary wire changes.
8. SYSTEM UPGRADE
a. Not later than June 30, 2000, Grantee shall upgrade its system to
provide a minimum of sixty (60) channels, of which no less than 36
shall be activated for service to subscribers initially, with the
capacity of expansion. Grantee may use a nodal architecture including
fiber optics to the node or other technology and design that is more
practicable both economically and technologically to achieve a system
with the same minimum capacity and technical quality. Prior to
commencing construction, Grantee shall submit a plan and schedule of
construction reflected on maps at a scale of 1 inch to 200 feet
showing by a logical geographic progression the sequence in which the
entire franchise area will be served.
PAGE 13
b. A Final Order of Completion for the upgrade shall be issued by the
Grantors when:
(1) construction of the Cable Television System has been completed
within the entirety of the Franchise Area in compliance with
construction standards, the approved plan, and the design and
other requirements of this agreement;
(2) cable television services have been made available in accordance
with section 12 of this agreement to the Franchise Area.
(3) any and all studio facilities, equipment, channels and other
services, resources or benefits required for community,
educational, and governmental access purposes pursuant to the
provisions of this agreement have been completed and made
available;
(4) complete and accurate "as built" plans in electronic format
compatible with Lancaster County GIS have been filed by the
Grantee with the Grantors; and
(5) a Notice of Completion has been filed by the Grantee as
hereinafter provided.
c. For purposes of this section, cable television service shall be deemed
to be made available when cable television services are offered on a
non-discriminatory basis for immediate provision to the owner or legal
representative of the owner empowered to consent to use of the
property of such individual dwelling units.
d. For the purpose of determining completion under this Section, the
total number of dwelling units within each Franchise Area shall be
deemed to be the actual number of units available for occupancy as of
a date forty-five (45) calendar days in advance of the date of filing
by the Grantee of the Notice of Completion; provided that the Grantee
files the Notice of Completion with a good faith belief that it has in
fact achieved completion as of the date of filing.
e. When Grantee asserts completion it shall file a written Notice of
Completion with the Cable TV Administrator. The Notice of Completion
shall state the total number of dwelling units available for occupancy
within each Franchise Area forty-five (45) calendar days in advance of
the filing of the Notice, the total number of dwelling units to which
cable television service has been made available within each Franchise
Area as of the date of filing, and shall otherwise certify completion
as defined by the first paragraph in this Section. Neither the Notice
of Completion nor the statements, assertions or certifications
contained therein shall be deemed to be binding upon the Grantors.
PAGE 14
f. During the period of upgrade construction and during the sixty (60)
day period following filing of the Notice of Completion, all elements
and components thereof, and all equipment and studio facilities
required by this Franchise document shall be subject to inspection by
Grantors' employees or authorized agents or representatives, for the
purpose of determining whether the System and related facilities
comply with the Franchise and the provisions of this agreement. The
Grantee shall authorize such inspection and provide such information
and cooperation as is required in order to permit an adequate
investigation to determine the existence or nonexistence of such
compliance.
9. REMOVAL
a. Upon expiration or termination of a Franchise, if the Franchise is not
renewed and if neither the Grantors nor an assignee purchase the Cable
Television System, Grantee, at its sole cost and expense,
(1) may remove any underground cable from the streets which has been
installed in such a manner that it can be removed without
trenching or other opening of the streets along the extension of
cable to be removed. Grantee shall not remove any underground
cable or conduit which requires trenching or other opening of the
streets along the extension of cable to be removed, except as
hereinafter provided.
(2) shall remove any underground cable or conduit by trenching or
opening of the streets along the extension thereof or otherwise
which is ordered to be removed by the Grantors Council based upon
a determination of the Council that removal is required in order
to eliminate or prevent a hazardous condition or promote future
utilization of the streets for public purposes. Any order by the
Grantors Council to remove cable or conduit shall be mailed to
the Grantee not later than thirty (30) calendar days following
the date of expiration or termination of the Franchise. Grantee
shall file written notice with the Grantors not later than thirty
(30) calendar days following the date of expiration or
termination of the Franchise of its intention voluntarily to
remove cable intended to be removed and a schedule for removal by
location. The schedule and timing of removal shall be subject to
approval and regulation by the Grantors. Underground cable and
conduit in the streets which is not removed shall be deemed
abandoned and title thereto shall be vested in the Grantors.
(3) shall remove from the streets all above ground elements of the
Cable Television System, including but not limited to amplifier
boxes, pedestal mounted terminal boxes, and cable attached to or
suspended from poles or other structures.
PAGE 15
b. Grantee shall apply for and obtain such encroachment permits,
licenses, authorizations or other approvals and pay such fees and
deposit such security as required by applicable ordinance of the
Grantors, shall conduct and complete the work of removal in compliance
with all such applicable ordinances, and shall restore the streets to
the same condition they were in before the work of removal commenced.
The work of removal shall be completed not later than twelve (12)
months following final determination that the franchise has been
terminated.
10. RIGHT OF GRANTORS TO PURCHASE THE SYSTEM
a. In the event the Grantors revoke the Franchise pursuant to provisions
of this agreement or upon non-renewal after the normal expiration of
the Franchise term or extension thereof and if Grantee is willing to
sell to any party, the Grantors shall have the first right, directly
or as an intermediary, to purchase the cable communications system.
The purchase price shall be the higher of any bonafide offer of
purchase made by an unaffiliated third party or the fair market value
of the system.
b. The date of valuation shall be no earlier than the day following the
date of expiration or revocation and no later than the date the
Grantors make an appropriate offer for the system.
c. The value of the cable system shall be determined by a board of three
members, all three of whom shall be experts in the appraisal of cable
television systems, one appointed by Grantee, one appointed by the
Grantors, and one selected by those two. Either party may initiate the
formation of the board by serving written notice upon the other of the
appointment of a member. Within forty-five (45) days after receipt of
such notice, the other party shall serve upon the first party a notice
of the appointment of a member. If the second party shall fail to make
such appointment or if the two members appointed by the parties shall
fail to select a third member within thirty (30) days after the
appointment of the second member, the Court of Common Pleas for
Lancaster County may, upon application of either party, appoint any
member or members not duly appointed in accordance with the foregoing.
The board may obtain such records of Grantee as it may determine to be
relevant to its assignment and shall make its determination of value
within a reasonable time. Members of the board shall be entitled to
reasonable compensation to be paid by the parties equally.
d. Either party may invoke the provisions of this section by serving
written notice upon the other.
e. Nothing contained in this section shall preclude payment by the
Grantors of a purchase price established by agreement between the
Grantee and the Grantors at any time.
PAGE 16
SERVICES
11. UNIVERSAL SERVICE
a. Grantee shall provide equal and uniform cable television service to
all dwelling units within incorporated portions of the Franchise Area;
provided, that all permissions required from owners of property are
reasonably available. Notice of the circumstances of each such
unavailability shall be given to the Grantors. No charge shall be
required of any subscriber or property owner for extension of
distribution facilities except as provided in section 11.b. Grantee
shall not discriminate in the offer of services or assessment, levy,
charge, imposition or collection of rates on the basis of age, race,
creed, color, religion, national origin, sex, marital status, or
location within the Franchise Area.
b. Line Extension Policy: Outside the portions of the franchise area
which were inside the corporate limits of the Towns on March 15, 1998,
Grantee shall extend its distribution facilities to any area
contiguous to its existing system that is not served by a franchised
cable company when there are 20 homes or 15 one-year commitments per
mile of cable. Grantee may require subscribers to share the cost of
extending distribution facilities to other areas. Grantee's rules for
sharing such costs shall be subject to the provisions of sections 13
and 24 of this Franchise and shall be subject to approval of the
Grantors.
c. Service to new developments: Grantee shall provide service to new
developments within the Franchise Area on a timely basis in
coordination with utility providers in such areas, and subject to the
provisions of subsection 11.b above.
d. Service to Newly Annexed Areas: Within sixty (60) days of official
notice of any annexation, unless Grantee is already providing cable
service to the annexation area, Grantee shall submit a plan and
schedule meeting the requirements of Section 9.1 showing how Grantee
proposes to incorporate such annexed area into its System as quickly
as is reasonably possible.
12. GENERAL REQUIREMENTS
The Cable Television System shall, at minimum:
a. Relay to subscriber terminals those signals required by the FCC.
b. Make available upon request by any subscribers receiving channels
showing premium services and pay per view events, a lockout device
which prevents the unauthorized viewing of such channels.
c. Make available to subscribers an RF switch (an A-B switch) permitting
conversion from cable to reception from another source for each
outlet.
PAGE 17
d. Not, as a condition to providing cable communications service, require
any subscriber or potential subscriber, to remove any existing antenna
structures for the receipt of television signals nor prohibit any
subscriber from installing such structures.
e. Render efficient service, make repairs promptly, and interrupt service
only for good cause and for the shortest time possible. Such
interruptions, insofar as practical, shall be preceded by notice and
shall occur during periods of minimum use of the System. In the event
that any subscriber is interrupted for twenty-four (24) or more
consecutive hours due to causes within Grantee's control, Grantee
shall provide a prorated rebate of monthly fees to the affected
subscriber. The rebate to an active subscriber may be in the form of a
credit against the account of the subscriber.
f. Effective with completion of the upgrade, Grantee shall include an
"Emergency Alert System" which meets the requirements of the FCC for a
video interrupt and audio alert message on all channels and EAS audio
and video messages on at least one channel, without regard to the
deadline in FCC rules. The Cable Television System shall include the
capability to receive alerts from the Grantors' headquarters for
Emergency Services. Grantors shall indemnify and hold Grantee harmless
from any and all claims of loss or damage alleged to arise from the
acts or omissions of Grantors in the use or failure to use such
capability.
g. Grantee shall interconnect its Cable Television System with other
Cable Systems within the County, or provide direct connections to
programming sources, so as to enable each system to carry and
cablecast the community, educational, and governmental access
programming of the other systems. It is recognized that this
capability requires cooperation from other independent franchising
authorities, cable operators, and others. Grantee shall cooperate with
such other entities with a goal of achieving interconnection.
Grantee's obligation under this section shall be as required by
section 15.d and the following: Not later than June 30, 2001, Grantee
shall present a plan developed with the other cable television
companies operating in the county to accomplish the interconnection
required by this section. Provided that there is live programming on
the government channel at that time, or subsequently when such
programming is being provided, and upon approval of such plan by
Grantors, Grantee shall implement the plan up to a cost to Grantee of
$10,000.
PAGE 18
13. CUSTOMER SERVICE
a. FCC Standards: Grantee shall provide customer service, at a minimum,
equal to requirements adopted by the FCC or other federal agencies
having jurisdiction over Grantee. A printed copy of the standards that
are applicable shall be provided by Grantee to its customers on
request without charge or made available by way of the cable system.
b. Customer information: Grantee shall make available to its customers
through one of its locally produced television channels or by such
other methods as the Grantee may deem necessary information with
regard to complaint procedures, channel offerings, rate schedules and
discount packages.
c. Grantee Rules: Grantee shall promulgate such rules, regulations,
terms, and conditions governing the conduct of its business as shall
be reasonably necessary to enable Grantee to exercise its rights and
to perform its obligations under this Franchise and to assure an
uninterrupted service to each and all of its customers; provided,
however, that such rules, regulations, terms, and conditions shall not
be in conflict with the provisions hereof, and shall have been
submitted to the Grantors not less than (30) days prior to the
proposed effective date thereof.
d. Local business office: Grantee shall establish, operate, and maintain
either with its own employees or by contract with a competent
unrelated organization in one of the Towns or within eight (8) miles
of both the Town Halls of Heath Springs and Kershaw a business office
for the purpose of initiating, changing or discontinuing service,
paying bills, and returning equipment. Such office shall be open
during normal business hours and additional hours as Grantee
determines.
e. 24-hour service: Grantee shall have a listed toll-free telephone
number for service calls and such telephone service shall be available
twenty-four (24) hours a day, seven (7) days a week.
f. Prompt repair: Grantee shall maintain adequate repair materials and
technicians. Grantee shall make repairs affecting fewer than five (5)
subscribers within 48 hours of initial notice by any subscriber.
Grantee shall initiate repairs affecting five (5) or more subscribers
within 24 hours of initial notice by any subscriber. Whenever such
repairs cannot be completed within 72 hours of initiation, Grantee
shall notify Grantors prior to the end of the 72-hour period of a time
certain when the repairs shall be completed. All repairs shall restore
the system to conform with plans previously submitted to the Grantors.
Grantee shall credit the account of any subscriber without service
beyond the limits in this section. In the event of a declared natural
disaster or other major disruption affecting more than twenty-five
percent of its subscribers, Grantee shall repair the system reasonably
promptly and in coordination with Grantors and emergency authorities.
PAGE 19
g. Equipment maintenance: Grantee shall service or replace without charge
all equipment provided by it to the subscriber, provided, however,
that Grantee may charge a subscriber for service to or replacement of
any equipment damaged by a subscriber. This subparagraph does not
apply to inside wiring not owned by Grantee. Grantee may remove
obsolete equipment without providing a replacement.
h. Deposits: Grantee may require all subscribers to pay for basic service
not more than two (2) months in advance. Grantee shall require no
other deposit or pre-payment for basic service, provided, however,
that nothing herein shall be construed to prohibit a charge for
installation of Cable Communications Services.
i. Disconnection: In the event that a subscriber fails to pay as properly
due and owing a fee or charge, the Grantee may disconnect the
subscriber's service outlet, upon giving ten (10) days written notice
thereof, and charge a reasonable reconnection fee. If a subscriber
shall exercise his right to withhold payment under provisions of State
law, Grantee shall strictly adhere to the requirements of said State
law. Unless permitted by FCC regulations, Grantee shall neither impose
nor collect any additional charge for the disconnection of any
installation or outlet or level of service.
j. Security deposit: Grantee shall not charge a security deposit greater
than the actual cost to the Grantee of equipment for which the
security deposit was collected. If Grantee's policy of requiring such
deposits shall change to require a smaller or no deposit, Grantee
shall refund all or the same proportion of previously-collected
deposits for the same or substantially similar equipment immediately
upon such change taking place. Such refund may be by credit on
subscriber's bills.
k. Refunds: Grantee shall establish and conform to the following policy
regarding refunds to subscribers and users:
(1) If the Grantee collects a deposit or advance charge on any
service or equipment requested by a subscriber or user, Grantee
shall provide such service or equipment within thirty (30) days
of the collection of the deposit or charge or it shall refund
such deposit or charge within forty-five (45) days after receipt
thereof.
(2) Nothing in this Section shall be construed to relieve the Grantee
of any responsibility to subscribers or users under any
contractual agreements into which it enters with them.
(3) Nothing in this section shall be construed as limiting the
Grantee's liability for fines or penalties which may be imposed
under this Franchise for violation or breach of any of its
provisions.
PAGE 20
(4) Nothing in this section shall be construed to limit the Grantee's
liability for damages because of its failure to provide the
service for which the deposit or charge was made.
(5) In the event that a subscriber terminates basic service prior to
the end of a pre-paid period, the pro-rata portion of any
pre-paid subscriber fee which represents payment for services
which are no longer to be rendered shall be refunded promptly,
but in no case more than forty-five (45) days after receipt of
the request for termination.
l. Late fees: Grantee may impose reasonable late fees. Grantee shall not
assess a late fee on any amount paid in advance prior to the end of
the period for which such advance payment was billed.
14. TECHNICAL STANDARDS
a. Grantee shall construct, install and maintain its Cable Television
System in a manner consistent and in compliance with all applicable
laws, ordinances, construction standards, governmental requirements,
and technical standards including those established by the FCC.
b. Minimum Bandwidth : Grantee shall provide a minimum capacity of 60
channels on completion of the upgrade.
c. Electrical and related Codes : Grantee shall at all times comply with
the National Electrical Safety Code (National Bureau of Standards);
National Electrical Code (National Bureau of Fire Underwriters);
Applicable FCC and other federal, state and local regulations; and
codes and other ordinances of the Grantors.
d. In any event, the Cable Television System shall not endanger or
interfere with the safety of persons or property within the Franchise
Area or other areas where the Grantee may have equipment located.
e. Antenna Structure(s): Any antenna structure used in the Cable
Television System shall comply with construction, marking and lighting
of antennae structures, required by the United States Department of
Transportation, regardless of whether such structure is within the
Grantors' jurisdiction.
f. Grantors radio services: RF leakage shall be checked at specified
fixed reception locations for emergency radio services to prove no
interference with specified frequencies used by the Grantors are
possible. The Grantors will specify in writing the locations and
frequencies referred to in this subparagraph and provide reasonable
notice of same to Grantee before any leakage tests other than those
required by federal law or regulations shall be required.
PAGE 21
g. Cable Ready consumer equipment: The Cable Television System shall be
designed to be compatible with common features of consumer electronic
equipment, in accordance with FCC regulations.
h. Color, Stereo, and VIT Signals: Effective with the upgrade, the Cable
Television System shall distribute television signals substantially as
they are available to it, particularly including such information as
color, Multi-Channel Television Sound (MTS, stereo), and vertical
interval test (VIT) signals. Grantors may waive this requirement based
on justification provided by Grantee in an application.
i. Grantee shall include equipment capable of providing standby powering
for head end, transportation and trunk amplifiers serving not less
than 250 subscribers for a minimum of two (2) hours. The equipment
shall be so constructed as to automatically notify the cable office
when it is in operation and to automatically revert to the standby
mode when the AC power returns. The system shall incorporate
safeguards necessary to prevent injury to linemen resulting from a
standby generator powering a "dead" utility line. Provision of standby
power shall be illustrated on the system map on file at the Grantors.
15. COMMUNITY, EDUCATIONAL AND GOVERNMENTAL ACCESS
a. Grantee shall provide, pursuant to the provisions of the Cable
Communications Policy Act of 1984, Section 611 (47 USC 531), one (1)
downstream channel for access by the Grantors and other government
entities in Lancaster County; and upon written notice by the Grantors
shall provide one (1) downstream channel for community access and/or
one (1) downstream channel for educational access. Grantee shall
activate the government access channel, including the provision of
equipment required by Section 15.d and training of Grantors' staff,
within 90 days of the effective date of this agreement. Other access
channels required in this section shall be activated, after completion
of the upgrade, within 60 days of written notice by Grantors.
b. Grantee shall effect the availability of all access channels to
viewers as a part of basic service. Any access channel requiring a
converter or "cable-ready" consumer equipment shall not be scrambled
or otherwise denied to customers.
c. Grantee use of Unused Access Channel: In the event that Grantee
desires to use any access channel in whole or in part for the
provision of other services, Grantee shall apply to the Grantors for
permission to do so and notify subscribers of the substance of the
application. Grantee shall demonstrate in such application that the
channel is not being used for the purpose designated. Based on such
application and other information and following opportunity for public
input, Grantors may permit Grantee to use such channel for other
purposes. Whenever Grantors reasonably determine that conditions have
changed so that the channel
PAGE 22
should be returned to its designated purpose, Grantors shall notify
Grantee. Grantee thereupon shall cease use of the channel and return
it to its designated purpose.
d. Support for Use of Access: Grantee shall provide necessary computer
equipment, modem(s), and training so that the government access
programming originated by the County and other jurisdictions may be
transferred to Grantee's system for carriage on the government access
channel. Nothing contained in this agreement shall be construed to
limit the authority of the Grantee to make payments in support of the
use of community, educational or governmental access channel(s).
However, except for the computer equipment, such payments are
expressly not a requirement of this Franchise and shall in no event be
considered in the calculation of Franchise Fees pursuant hereto.
e. Availability of Access Facilities: Grantee shall activate channels for
community, educational and government access upon the Cable Television
System pursuant to this section at all times and shall maintain such
channels in operation the same as any other channel on the system.
Grantee shall furnish and maintain all equipment necessary for
transmitting signals from one location to the head end for each such
channel.
f. As to channels allocated for community and educational access, Grantee
shall assist in the development and may assist in the operation of
separate non-profit entities to manage such channels.
g. Grantee shall make all reasonable efforts to coordinate the cable
casting of community, educational and governmental access programming
upon the Cable Television System at the same time and upon the same
channel designations as such programming is cablecast upon other cable
television systems within the community.
16. SERVICE TO GRANTORS
Grantee, at its own expense within 45 days of the effective of date of this
agreement, shall provide and maintain one connection to Grantors' existing
office buildings, police stations, fire stations, fixed radio
transmitter/receiver sites, recreational facilities, and any other of Grantors
facilities within the Franchise Area as designated by the Grantors; provided,
that Grantee shall not be responsible for providing the distribution system
within any of such places. Further, no fees shall be charged for basic service
to such places. Service shall be provided to newly established Grantors
facilities of the type referred to above under the same terms and conditions
within 30 days of notice by the Grantors. The requirement to serve any specific
facility may be waived by the Grantors.
PAGE 23
17. PROGRAMMING
Community Needs: Grantee shall provide programming meeting the needs of the
community, including programming devoted to minorities, sports, music, children,
business and financial affairs, arts and culture, science, public affairs,
foreign culture and language, and South Carolina. Grantee shall provide a
diversity of programming about South Carolina, but Grantee shall be under no
obligation to create original programming.
REGULATION
18. REGULATION OF THE FRANCHISE
a. The Grantors shall have the following regulatory responsibility:
(1) Administration and enforcement of the provisions of this
Franchise;
(2) Renewal, extension or termination of this Franchise;
(3) Approval prior to sale or transfer of the Franchise granted
hereunder;
(4) Performance evaluations pursuant to this Franchise.
B. The Grantors also reserves the right to perform the following
functions:
(1) Develop objectives and coordinate activities related to the
operation of community, educational and government channels;
(2) Provide technical, programming and operational support to public
agency users such as Grantors departments, schools and health
care institutions;
(3) Coordinate plans for interconnection of cable services;
(4) Analyze the possibility of integrating cable communications with
other city, state, or regional telecommunications networks;
(5) Formulate and recommend long-range telecommunications policy for
the Grantors and provide for the determination of future
cable-related needs and interests of the community;
(6) Provide the administrative effort necessary for the conduct of
performance evaluations pursuant to this Franchise, and any other
activities required for the administration of the Franchise;
(7) Monitor the Grantee's process for handling citizen complaints and
periodically inspect and analyze the records related to such
complaints;
PAGE 24
(8) Monitor the Grantee's adherence to operational procedures and
line-extension policies;
(9) Assure compliance with applicable laws and ordinances;
(10) Arrange tests and analyses of equipment and performance;
(11) Provide for reasonable continuity in service;
(12) Receive for examination all data and reports required by this
Franchise; and
(13) Intervene in any suit or proceeding to which the Grantee is
party, when the issues involved are relevant to the interest of
the Grantors in the performance of Grantee's obligations under
this agreement and when permitted by the court.
19. TRANSFERS
a. The Franchise may not be sold, transferred, assigned, mortgaged,
pledged, leased, sublet, or otherwise encumbered for any purpose
whatsoever, nor shall title thereto, either legal or equitable, or any
right or interest therein, pass to or vest in any party without
Grantors approval, which shall be based upon a reasonable
determination by the Grantors of the qualifications of the buyer or
assignee in respect to technical, financial, legal, character, or
other such requirements, which approval shall not be unreasonably
withheld; and upon sale or assignment, the buyer or transferee shall
be required to become a party to the terms of this Franchise.
Notwithstanding the above, Grantee may hypothecate its assets
including the Cable Television System or any part thereof to secure
loans, except that such loans shall not be from cable television
industry sources.
b. A sale or transfer of control of Grantee to or among the present
shareholders of Grantee, their spouses, children or grandchildren, or
other entities owned or controlled by the shareholders of Grantee
shall not be deemed a sale or assignment of the Franchise for the
purposes of this section.
c. The transfer, over the term of the Franchise, of more than fifty
percent (50%) of voting control of Grantee pursuant to a sale or
security agreement to persons other than the present shareholders of
Grantee, their spouses, children or grandchildren, or other entities
owned or controlled by the shareholders of Grantee shall create a
presumption of a transfer of control of Grantee.
d. Any change in the list of owners required by section 4.a that does not
require approval of the Grantors shall be reported to the Grantors
within thirty (30) days of the effective date thereof.
PAGE 25
e. Any transfer or other encumbrance of whatever kind or nature made in
violation of the provisions of this Section shall be void.
20. BOND
Grantee shall furnish a franchise bond or irrevocable letter of credit
guaranteeing performance of Grantee's obligations under this franchise in an
amount of $25,000. Such security shall be maintained throughout the term of this
Franchise, provided that the surety may be substituted at any time provided that
the substituted surety is qualified, that the suretyship is not interrupted, and
that notice of the proposed substitution is provided to Grantors not less than
60 days prior to the date of the proposed substitution. Grantors shall notify
Grantee within 30 days of said notice if Grantors object to the proposed
substitution. The bond or irrevocable letter of credit required herein shall be
in a form satisfactory to the Grantors. Surety shall be licensed therefor by the
State of South Carolina. An irrevocable letter of credit shall be issued by a
bank subject to the jurisdiction of South Carolina courts and which meets the
capital requirements of federal regulators.
21. INDEMNIFICATION
Grantee shall, at its sole expense, fully indemnify, defend and hold harmless
the Grantors, its officials, employees, agents, and volunteers, from and against
any and all claims, suits, actions, liability and judgments for damages or
otherwise:
a. For actual or alleged injury to persons or property, including loss of
use of property due to an occurrence, whether or not such property is
physically damaged or destroyed, in any way arising out of or through
or alleged to arise out of or through the acts or omissions of the
Grantee or its officers, agents, employees, or contractors or to which
the Grantee's or its officers', agents', employees' or contractors'
acts or omissions in any way contribute;
b. Arising out of or alleged to arise out of any claim for damages for
invasion of the right of privacy, defamation of any person, firm or
corporation, or the violation or infringement of any copyright, trade
xxxx, trade name, service xxxx or patent, or of any other right of any
person, firm or corporation; and
c. Arising out of or alleged to arise out of Grantee's failure to comply
with the provisions of any statute, regulation or ordinance of the
United States, State of South Carolina, or any local agency applicable
to the Grantee in its business.
Grantee, however, shall not indemnify, defend or hold harmless the Grantors, its
officials, employees, or volunteers to the extent that such claims are caused by
such parties.
PAGE 26
22. INSURANCE
a. Grantee shall maintain in full force and effect at all times for the
full term of the Franchise, insurance as described in this section.
Such insurance shall protect the Grantors as an additional insured
with respect to damages and defense of claims arising from activities
performed by or on behalf of Grantee, products and completed
operations of Grantee and premises owned, leased or used by the
Grantee.
b. All liability insurance required in this section shall be kept in full
force and effect by the Grantee during the existence of the Franchise
and until after the removal of all poles, wires, cables, underground
conduits, manholes, and other conductors and fixtures installed by
Grantee incident to the maintenance and operation of the cable
communications system as defined in this Franchise.
c. All insurance policies shall be written by insurers licensed to do
business in South Carolina and be acceptable to the Grantors. All
policies shall be endorsed to give the Grantors thirty (30) days
written notice of the intent to amend, cancel or non-renew by either
the Grantee or the insuring company.
d. Grantee shall furnish the Grantors with certificates of insurance and
with original endorsements affecting coverage required by this
section. The certificates and endorsements for each insurance policy
are to be signed by a person authorized by that insurer to bind
coverage on its behalf. Certificates shall be on ACCORD Form 25-S or
on forms approved by the Grantors. Endorsements shall be provided by
Grantee using insurance industry standard forms or other forms
approved by the Grantors, which approval shall not be unreasonably
withheld.
e. Insurance Coverages Required : A comprehensive general liability
insurance policy protecting the Grantors against liability for loss or
bodily injury and property damage occasioned by the installation,
removal, maintenance or operation of the cable communication system by
the Grantee in the following minimum amounts:
(1) $5,000,000 combined single limit, bodily injury and for property
damage in any one occurrence;
(2) $5,000,000 aggregate.
(3) A comprehensive automobile liability policy for all owned,
non-owned, hired and leased vehicles operated by the Grantee with
limits no less than five million dollars ($5,000,000) each
accident, single limit, bodily injury and property damage
combined, or evidence of self insurance.
PAGE 27
(4) Worker's compensation and employer's liability, valid in the
State, in the minimum amount of the statutory limit for worker's
compensation, and $500,000 for employer's liability.
23. REPORTS
a. Contemporaneous reports :
(1) Regulatory communications. Copies of all written petitions,
applications, letters, memoranda and reports submitted by Grantee
to or received by Grantee from any Federal or State agency having
jurisdiction in respect to any matters affecting construction or
operation of a Cable Television System or services provided
through such a System; provided, however, that materials exempt
from disclosure under the Freedom of Information Act applicable
to such agency shall not be subject to this requirement.
(2) Notices to public. Copies of all written notices to subscribers,
news releases, and other documents concerning operation of the
system issued to the public or media shall be submitted to the
Grantors not later than the time they are first mailed or
delivered to any other person.
b. Annual Report: Grantee shall file with the Grantors in January of each
year, including the January following the expiration of this
Franchise, an annual report consisting of:
(1) Facilities report. A report describing plant construction and
plant in operation during the previous year, including head end
and production facilities.
(2) Grantee rules. The Grantee's full schedule of all subscriber and
user rates and all other charges including, but not limited to,
premium, leased channel and pay per view services, contract or
application forms of regular subscriber policy regarding the
processing of subscriber complaints, delinquent subscriber
disconnect and reconnect procedures and any other terms and
conditions adopted as the Grantee's policy in connection with its
system subscribers.
(3) Proof of insurance. Written notice of payment of required
premiums for insurance required by this Franchise.
(4) Financial reports. The financial reports for the Grantee, which
shall indicate income and expenses, assets and liabilities, and
such other information that reasonably may be required.
PAGE 28
(5) Grantee's annual proof of performance tests conducted pursuant to
FCC standards and requirements. In the event that the FCC does
not require a complete proof of performance, Grantee shall
furnish such tests as are necessary to demonstrate that the
system meets the technical standards required by section 14.
(6) A summary of new services offered and services discontinued
during the previous year with an explanation of the changes.
(7) A summary of complaints received and handled which may be a list
of types and number.
(8) A report of the number and types of outages affecting five (5) or
more subscribers simultaneously.
(9) The number of subscribers by level of service subject to the
Franchise, the total number of subscribers served from facilities
located within the Franchise Area, a list of systems or
franchises served from facilities located in the Franchise Area.
(10) A report on programming provided pursuant to section 17.
c. Special reports: Grantee shall prepare and furnish to the Grantors, at
the times and in the form prescribed, such additional reports with
respect to its operation, affairs, transactions or property as may be
reasonably necessary and appropriate to the performance of any of the
functions or duties of the Grantors in connection with the System.
24. RATES
a. Rate regulation : Grantors expressly reserve the right to approve the
rates which the Grantee charges its subscribers for such services as
Grantors may be permitted to regulate by current or subsequent law.
Grantee shall not deny, delay, interrupt or terminate cable
communications services or the use of community communications
facilities to subscribers or users because Grantors deny a request for
a rate increase, provided, however, that nothing herein shall be
construed to limit the Grantee's right to seek judicial review of the
reasonableness of such action. No rate, fee or charge of any kind,
which is within the approval authority of Grantors as set forth above,
shall be charged or collected from subscribers by the Grantee without
the written authorization of Grantors. Rate regulation shall be
implemented according to applicable federal law and regulations.
b. Promotional rates: Nothing in this Section shall be construed to
prohibit the reduction or waiving of charges in conjunction with
promotional campaigns for the purpose of attracting subscribers or
users.
PAGE 29
25. FRANCHISE FEES
a. Purpose : For the use of the streets and for the purposes of providing
revenue with which to defray the costs of regulation arising out of
the granting of this Franchise and for promoting and assisting
community, educational, and governmental access programming, the
Grantee shall pay Franchise Fees in the amount in this Section.
b. During the term of this Franchise, Grantee shall pay to the Grantors
an amount equal to five percent (5%) each year of the Grantee's annual
Gross Revenues derived from the operation of the system within the
Franchise Area. Said fees shall be paid quarterly within 30 days of
the end of each calendar quarter. Grantee agrees that no adjustment
shall be necessary to represent the time value of money in the payment
of franchise fees.
c. The term "revenues derived from operation of the cable system in the
Franchise Area" shall be construed to include only (1) those revenues
derived by the Grantee from subscribers within the Franchise Area and
(2) a portion of other revenues of the Grantee calculated by a formula
or formulae which fairly allocate revenues attributable to the
Franchise Area. In the absence of a more precise formula, the portion
shall be calculated by multiplying such other revenues by a fraction
whose numerator is the number of subscribers within the Franchise Area
and whose denominator is the number of subscribers served by the head
end facility of Grantee.
d. Not later than March 31 of each year during the Franchise, and
including the year following expiration of the Franchise, Grantee
shall provide the Grantors with certification by an officer of Grantee
of the accuracy of the Franchise fee paid and in detail the sources
and amounts of revenues received by Grantee during the previous year.
The Grantors may, in their sole discretion, retain the services of an
independent certified public accountant to provide an opinion,
prepared in accordance with generally accepted accounting standards,
as to the accuracy of franchise fee paid. Expense of such audit will
be paid by the Grantors unless such opinion establishes that the
Franchise fee has been underpaid, in which case, the Grantee will
reimburse the Grantors for expense of the opinion along with any
unpaid fee, interest and penalty within 30 days of the opinion date.
e. No acceptance of any payment shall be construed as an accord that the
amount paid is, in fact, the correct amount, nor shall such acceptance
of payment be construed as a release of any claim which the Grantors
may have for further or additional sums payable under the provisions
of this Section.
PAGE 30
f. If the limitation on Franchise Fee contained in the Cable Act is
raised, the fee required by this Franchise may be increased up to the
new limit effective for fees paid after January 1 next following the
effective date of such amendment to the Cable Act; provided that such
increase is authorized by Grantors after a duly noticed public
hearing.
g. Interest: Any Franchise Fees which remain unpaid after the due date
shall be delinquent and shall thereafter accrue interest at the then
published prime rate.
h. Franchise fees due hereunder shall be payable based on gross revenues
received by the Grantee beginning on July 1, 1998, and thereafter, as
required by this Section. Grantee shall obtain business licenses for
the period beginning July 1, 1998, and thereafter in accordance with
Grantors' business license ordinances.
i. Inspection of books : Grantee shall make available for inspection by
authorized representatives of the Grantors, its books, accounts, and
all other financial records at reasonable times and upon reasonable
notice. Such inspections shall not be limited to annually, as are
audits.
j. If for any reason, the Grantors refund any payment of franchise fee,
Grantee shall credit such refund to subscribers in a reasonable manner
to be approved by the Grantors.
26. RECEIVERSHIP AND FORECLOSURE
a. The Franchise shall, at the option of the Grantors, cease and
terminate one hundred twenty (120) days after the appointment of a
receiver or receivers, or trustee or trustees, to take over and
conduct the business of the Grantee, whether in a receivership,
reorganization, or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the
expiration of said one hundred twenty (120) days, or unless such
receivers or trustees shall have, within one hundred twenty (120) days
after their election or appointment, fully complied with all the terms
and provisions of this Franchise, and the receivers or trustees,
within said one hundred twenty (120) days, shall have remedied all
defaults under the Franchise; and such receivers or trustees shall,
within said one hundred twenty (120) days, execute an agreement, duly
approved by the court having jurisdiction of the premises, whereby
such receivers or trustees assume and agree to be bound by each and
every term, provisions and limitation of this Franchise.
b. In the case of a foreclosure or other judicial sale or transfer in
lieu thereof of the plant, property and equipment of the Grantee or
any part thereof, including or excluding the Franchise, the Grantors
may serve notice of termination upon the Grantee and the successful
bidder at such sale or proposed transferee, in which event the
Franchise and all rights and privileges of the Grantee granted
hereunder
PAGE 31
shall cease and terminate one hundred twenty (120) days after
service of such notice unless the Grantors shall have
approved the transfer of the Franchise pursuant to section 19.
Provided, however, that if such transferee is a prior secured party
pursuant to section 19.a to whom the transfer has been made in lieu
of foreclosure or as a result of a foreclosure or other judicial
sale or is a successful bidder at foreclosure or other judicial
sale whom the Grantors has not approved pursuant to Section 19, the
transferee shall be permitted to continue operating the system for
twelve months from the date of such transfer, while actively
seeking another operator meeting Grantors' requirements for
approval, if the transferee shall have covenanted and agreed with
the Grantors to assume and be bound by all of the terms and
conditions of the Franchise reasonably applicable under the
conditions and circumstances existing during said twelve month
period.
27. ENFORCEMENT
a. Procedure for Remedying Franchise Violations by Termination: In the
event that the Grantors determine that Grantee has violated any
material provision of this Franchise, Grantors may make a written
demand on Grantee that it remedy such violation. If the violation is
not remedied, or in the process of being remedied, to the reasonable
satisfaction of the Grantors within sixty (60) days following such
demands, Grantors shall determine whether or not such violation by
Grantee was excusable or inexcusable, in accordance with the
Administrative Procedures Act commencing at Section 1-23-310 of the
Code of South Carolina of 1976 or any successor legislative amendment,
to the extent that it may be applicable. Upon such determination, the
Grantors Council shall adopt a decision which includes findings of
fact and conclusions. If the decision by the Grantors Council is that
there are grounds for termination of the Franchise and that the
Franchise shall be terminated, the Council may adopt a resolution
which terminates the Franchise and includes its decision. The
effective date of termination shall be such date as is reasonably
prescribed by the Grantors Council, in the resolution.
b. Alternative Remedies: Any enforcement action or remedy provided by
this Franchise shall not be deemed exclusive but shall be alternative
or cumulative in nature. No provision of this Franchise shall be
deemed to bar the right of either party to seek or obtain judicial
relief from a violation of any provision of this Franchise or any
rule, regulation, requirement or directive promulgated thereunder.
Neither the existence of other remedies identified in this Franchise
nor the exercise thereof shall be deemed to bar or otherwise limit the
right of the either party to recover monetary damages (except where
liquidated damages are otherwise prescribed) for such violation or
judicial enforcement of either party's obligations by means of
specific performance, injunctive relief or mandate, or any other
judicial remedy at law or in equity.
PAGE 32
Liquidated Damages:
(1) Grantee understands and agrees that failure to comply with any time
and performance requirements as stipulated in this Franchise will
result in damage to the Grantors, and that it may be impracticable to
determine the actual amount of such damage in the event of delay or
non-performance.
(2) If the Grantors conclude that Grantee is liable for liquidated damages
pursuant to this Section, they shall issue to Grantee by certified
mail a notice of Intention to Assess Liquidated Damages. The notice
shall set forth the basis for the assessment, and shall inform the
Grantee that liquidated damages will be assessed from the date of the
notice unless such violation shall have been cured within 10 days of
the date of notice or the assessment notice is appealed. On appeal the
Grantors may determine (1) that the violation has been corrected, or
(2) that an extension of time or other relief should be granted.
Unless the Grantors indicates to the contrary, said liquidated damages
shall be assessed beginning with the date on which the Grantors sent
the notice of the intention to assess liquidated damages and
continuing thereafter until such time as the violation ceases, as
determined by the Grantors.
(3) The following liquidated damages amounts are established:
(a) For failure to pay any monetary amount due to Grantors when due,
in addition to any interest due on such amount, an amount equal
to five percent of such monetary amount.
(b) For failure to provide within a reasonable time after written
request any data, documents, reports, or other information
required by the Franchise, $50 per day that such violation
continues.
(c) For failure to complete the upgrade, $100 per day that such
violation continues.
(d) For failure to provide an emergency alert system pursuant to
Section 12.f, $100 per day that such violation continues.
(e) For failure to provide service to Grantors pursuant to Section
16, $25 per site per day that such violation continues.
(f) For failure to activate any access channel pursuant to Section
15, $100 per day that such violation continues.
(g) For failure to complete repairs promptly as required by section
13.f, $25 per subscriber per day until repairs are completed.
PAGE 33
(h) For failure to comply with Customer Service Standards as required
by section 13 except subsection 13.f, $50 per day that such
violation continues.
(i) For failure to comply with Technical Standards required by
section 14, $50 per day that such violation continues.
(j) For failure to file reports as required by section 23, $100 per
day that such violation continues.
(k) For failure to test, analyze and report on the performance of the
system following a written request, $100 per day that such
violation continues.
(l) For failure to obtain any permit or permission of the Grantors
required by this Franchise, $100 or an amount equal to the
associated fee, whichever is greater.
d. Forbearance by Grantors: Grantee shall not be relieved of any
obligation to comply with any of the provisions of this Franchise or
any rule, regulation, requirement or directive promulgated thereunder
by reason of any failure of the Grantors or their officers, agents or
employees to enforce prompt compliance.
e. Force Majeure: Notwithstanding anything to the contrary in this
Franchise, the Grantors shall not impose any penalty upon the Grantee
where either violation or failure to cure the same result from force
majeure, labor dispute, declaration of war or other hostilities, Act
of God, or any other reason beyond the control of the Grantee.
For and in consideration of the promises, covenants, grant of franchise,
obligations, fees and provision of services, the Grantors and Grantee agree to
be bound by the terms of this franchise agreement, acknowledge that it is their
entire agreement and that is binding on them, their successors and assigns.
PAGE 34
IN TESTIMONY WHEREOF, the parties hereto have executed this Agreement as of the
13th day of October, 1998.
TOWN OF HEATH SPRINGS Enstar Income Program 0000-0,
X.X. d.b.a. Falcon
By /S/ XXX X. XXXXXX
-----------------
Mayor By: /S/ XXXXXX XXX
------------------
ATTEST: /S/ THEE XXXXX Its: V.P.
--------------- -----------------
Its: CLERK / TREASURER ATTEST: /S/ XXXXX XXXXXX
------------------- ----------------
TOWN OF KERSHAW Its: ADMIN ASST
-------------
By /S/ X. X. XXXXXXX
-----------------
Mayor
ATTEST: /S/ XXXXXX XXXXX
-----------------
Administrator
COUNTY OF LANCASTER
By /S/ XXX X. XXXXXXXX
-----------------------
County Council chairman
ATTEST: /S/ XXXXXXX XXXXX
-----------------
County Administrator
