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Exhibit 10.26
ENSTAR CABLE CUMBERLAND VALLEY
Cable Television Franchise Agreement
THIS AGREEMENT, by and between the COUNTY OF XXXXXXXX COUNTY, TENNESSEE (the
"County") and ENSTAR CABLE CUMBERLAND VALLEY, (the "company"), is entered into
on this 17th day of October 1997.
WITNESSETH:
WHEREAS, the Company has requested that the County renew its cable television
franchise;
WHEREAS, the County of Xxxxxxxx County and the County Commission has considered
the Company's technical and other qualifications, including, but not necessarily
limited to, the Company's ability to serve the citizens of Xxxxxxxx County
within the Company's franchise area as set out below, and has found those
qualifications to be adequate; and
NOW, THEREFORE, for the mutual consideration set out below, the receipt and
sufficiency of which are acknowledged by both the County and the Company, the
parties hereto agree as follows:
1. Grant of Authority: There is hereby granted by the County of Xxxxxxxx County
to the Company, the right and privilege to engage in the business of operating a
Cable Television System, hereinafter sometimes referred to as "CATV System,"
within the Franchise Area described herein for the purpose of providing basic
CATV Service, and such aspects of Expanded CATV Service, if any, as the Company
may from time to time deem advisable; provided that the service is permissible
under Federal Communications Commission Rules and Regulations. Accordingly,
there is hereby granted to the Company the right and privilege to erect,
install, construct, operate, repair, replace, reconstruct, maintain and retain
in, on, over, under, upon, across, and along all Streets and Public Ways such
poles, wires, cable, conductors, ducts, conduit vaults, manholes, amplifiers,
appliances, attachments, and other property as may be necessary and appurtenant
to the CATV System, and in addition so to use, operate, and provide similar
facilities or properties rented or leased from other persons, firms, or
corporations, including, but not limited to, any public utility or other
Grantee, franchised or permitted to do business in the Franchise Area.
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It is agreed that in exercising this Franchise in any manner involving
the installation, construction, repair and reconstruction of facilities within
the Public right of way of any Public Street and Public Ways, and the
consequential disturbance thereof, the Company shall follow the County's then
current rules with regard to obtaining permission from the appropriate public
authority. Furthermore, any damage done, as a result thereof to any such Public
street or Public Way, shall be repaired and restored in a reasonable manner at
the cost and expense of the Company in as nearly as possible as good condition
as before the work involving such disturbance was done.
The Company shall protect, support, temporarily disconnect, relocate in
the same public way, or remove from the public way any property of the Company
when reasonably required by the County by reason of traffic conditions, public
safety, street construction, change, or establishment of street grade,
installation of sewers, drains, water pipes, power lines, signal lines, and
tracks or any other type of structures or improvements by the public agencies,
but not for the purpose of any type of competing service. The Company shall bear
all costs incurred by it in connection with such relocation unless such request
for relocation is made by or for the benefit of a "for-profit-business." The
Company shall have the right to charge the third party for all costs associated
with the relocation.
2. Non-Exclusive Franchise Area: The Franchise granted to the Company by this
agreement is non-exclusive and shall cover all present territorial limits of the
County and any area henceforth added there to during the term of this agreement.
Notwithstanding any other provision contained herein, the County shall not
authorize or permit a new or renewal of existing cable television system to
operate within the County on terms or conditions more favorable or less
burdensome to such operator than those applied to Company pursuant to this
Franchise.
3. Term of Franchise: The Franchise and rights granted hereunder shall take
effect immediately and shall continue in full force and effect for 10 years. The
Franchise may be renewed for additional periods as the County and the Company
agree upon. The consideration of the Company's application for renewal shall be
initiated by delivery to the Franchising Authority of the Company's proposal for
renewal. The proposal for renewal shall be delivered to the Franchising
Authority not less than twelve (12) months prior to the expiration of this
franchise agreement or at such time as provided by the then applicable rules.
The renewal process shall be governed by the then applicable rules.
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4. Franchise Fee: The Company shall pay a franchise fee to the County no later
than sixty (60) calendar days after the expiration of each calendar year based
on revenues received during the preceding calendar year. The franchise fee
payment shall be 5% (percent) of the Company's gross subscriber revenues. No
other fee, charge or consideration shall be imposed. At the time of each payment
due hereunder, the Company shall provide the County an appropriate annual
summary report showing gross annual revenues received during the preceding year.
The County may inspect and audit any and all books and records of the Company,
specifically relating to its compliance with its franchise fee obligations, and
recompute any amounts determined to be payable under the franchise. The cost of
the audit will be borne by the County.
"Gross Subscriber Revenues" shall mean revenues from all compensation,
whatever form, received directly or indirectly by the Company from the Company's
subscribers, which shall include, but not necessarily be limited to, charges for
Basic and Expanded CATV Service, all pay-per-view programs, premium channel
outlets, installation charges, remote control and converter box charges, charges
for additional outlets, cable TV guide charges, collection or late payment
charges and any other similar programs offered by the Company. Gross Subscriber
Revenues shall not include reasonable bad debt allowances, revenues from
advertising, leased channels, shopping channels or any taxes or user fees
imposed on Company's subscribers by any governmental or quasi-governmental
entity which are collected by the Company for said entity's use or benefit.
5. Indemnification of County:
(a) The Company shall at all times protect and hold harmless the County
from all claims, actions, suits, liability, loss, expense or damages of every
kind and description (herein collectively referred to as "claims") including
reasonable and necessary out of pocket investigation costs, reasonable court
costs and reasonable and necessary out of pocket attorneys fees, which may
accrue to or be suffered or claimed by the County arising from the Company's
ownership, construction, installation, repair, replacement, maintenance and
operation of the Cable Television System. The County shall give prompt notice of
the existence of any occurrence which may give rise to any claim filed under
which the County expects to claim a right to indemnity.
(b) The Company shall maintain in full force and effect during the life
of this Franchise public liability insurance through an insurance company
authorized to do business in the State of Tennessee and providing coverage in
amounts not less than the amounts required for governmental entities under the
Tennessee Governmental Tort Liability Act, Sections 23-3301 et seq. Tennessee
Code Annotated. The Company shall furnish the County a Certificate of Insurance
evidencing such coverage.
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6. Surety Bond:
(a) The Company shall maintain, and by its acceptance of this Franchise
specifically agrees that it will maintain throughout the term of this Franchise,
a performance bond running to the County, with a good and sufficient surety
approved by the County in the penal sum of Ten Thousand Dollars ($10,000.00)
conditioned that the Company shall well and truly observe, fulfill and perform
each term and condition of this Franchise Agreement and that in case of any
breach, the County shall be entitled to recover from the principal and sureties
thereof the amount of all damages, including all costs and attorneys fees
incurred by the County, proximately resulting from the failure of the Company to
well and faithfully observe and perform any and all of the provisions of this
Franchise Agreement.
(b) The bond shall contain a provision that it shall not be terminated
or otherwise allowed to expire prior to thirty (30) days after written notice to
that effect is given to the County and the Company herein.
7. Federal Regulation: The Company shall conduct its construction and
maintenance activities and provide CATV service in conformance with all
applicable technical standards promulgated by the Federal Communications
Commission. In addition, the Company and County agree to conform to all
applicable rules and regulations as set forth in the Cable Television Consumer
Protection and Competition Act of 1992 or any other applicable local, state, or
federal law or act that may become enforceable.
8. Customer Service: The Company shall maintain a business office or toll free
telephone number which subscribers may telephone or contact the Company during
regular business hours without incurring added message or toll charges so that
CATV maintenance service shall be readily available.
9. Notice: Any notice given under this Agreement shall be given as follows:
If to the County: County of Xxxxxxxx County and County Commission
Xxxxxxxx County Courthouse
Xxxx Xxxxxx X.X. Xxx 000
Xxxxxxxxx, XX 00000
If to the Company: Enstar Cable Cumberland Valley
0000 Xxxxx Xxxxxxx 00
Xxxxxxxx, XX 00000
With a copy to Enstar Cable Cumberland Valley, 00000 Xxxxxxxx Xxxxxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ATTN: Xxxxxx Xxx. Either party may by
notice change the persons to be notified and/or their addresses.
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10. System Upgrading: Enstar (Falcon) Cable will upgrade system-wide to the
industry standard of 450 MHz within a three (3) year time period and this
quality of service will be maintained and upgraded as the industry upgrades
their standards from time to time. This upgrade will allow the system to be
technically capable of providing up to 62 channels.
11. Service Requirements: The Company shall extend service to areas with at
least twenty (20) homes per strand mile. If 150 feet or more of line or cable is
required from the public right-of-way line, the Company shall not be required to
extend Cable Television Service to such subscriber except at a premium
installation rate which shall not be greater than the actual cost for that
portion of the distance which exceeds one hundred fifty (150) feet. In such
instances the Company shall also be permitted to request advance payment of such
installation.
12. Revocation of Franchise: The County shall provide the Company with a
detailed notice of a Franchise violation upon which it proposes to take action,
and a ninety (90) day period within which the Company may demonstrate that a
violation cannot be cured within ninety (90) days, submit a reasonable plan to
the County which will correct the violation.
If the Company fails to disprove or correct the violation within ninety
(90) days or, in the case of a violation which cannot be corrected in ninety
(90) days and the Company has timely submitted a plan, if Company fails to
implement the plan, then the County may declare the Company in default, which
declaration must be in writing.
In the event that the County declares the Company in default, the
County may, by majority vote hold an administrative proceeding to determine
whether the Company's Franchise should be revoked. If the County determines that
an administrative proceeding should be held, the County shall provide not less
than thirty (30) days notice to the public and to the Company of the date of the
administrative proceeding and a description of the basis of the alleged default.
The County can revoke the Franchise only for defaults arising from the following
circumstances:
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A. Material misrepresentation by Company to County in information required
to be provided under the Franchise;
B. Company becomes insolvent or is adjudged bankrupt; or
C. Company willfully violates a material provision of this Franchise.
In the event of default arising from A, B, or C above, the County may,
in its sole discretion, take any other lawful action which it deems appropriate
to enforce the County's rights under the Franchise in lieu of revocation of the
Franchise.
13. Equal Employment Opportunity: The Company hereby acknowledges that it is
subject to and agrees to abide by applicable federal and state laws regarding
employment practices and Equal Employment Opportunity.
14. Uniform Fees: The Company agrees that, in setting its rates, it will not
discriminate against any customer on the basis of the customer's race, the
customer's creed, the customer's sex, the customer's religion, the customer's
income, or the location of the customer's dwelling.
In order to promote its products, the Company shall have the right to
offer promotional rates, provided, however, that such promotional rates must be
for a short-term duration. This provision does not prohibit the Company from
discounting and/or waiving its rates if such a discount and/or waiver is
necessary for the Company to compete with another Cable TV service or similar
service which serves or plans to serve some, or all, of the Company's customers.
This provision does not prohibit the Company from negotiating contracts
with commercial or bulk rates for hotels, motels, or apartment buildings.
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15. Subscriber Rates: All charges to the subscribers shall be consistent with a
schedule of fees for services offered and established by the Company. Rates
shall be nondiscriminatory in nature and uniform to persons of like classes
under similar circumstances and conditions. The Company will provide the County
with thirty (30) days advance written notice of any change in rates and charges.
Company will inform each new subscriber of all applicable fees and
charges for providing cable television service. Company may refuse to provide
service to any person because a prior account with that person remains due and
owing. Company may offer service which requires advance payment of periodic
service charges.
16. Subscriber Refunds: The Company shall provide refunds to subscribers in the
following cases:
(a) If the Company fails within a reasonable time (3 days) to
commence service requested by a subscriber, it will refund all
deposits or advance charges that the subscriber has paid in
connection with the request for such service.
(b) If a subscriber terminates any service at any time and has a
credit balance for deposits or unused services, the Company
will, upon disconnection notice from the subscriber and upon
return of all the Company's equipment, refund the appropriate
credit balance to the subscriber. The subscriber will be
responsible for furnishing the Company a proper address in
which to mail the refund.
(c) If any subscriber's cable service is out of order for more
than 24 hours during the month due to technical failure,
damage, or circumstances within the control of the Company,
the Company will credit the account of that subscriber on a
pro rata basis. The credit will be calculated using the number
of twenty-four (24) hour periods that service is impaired and
the number of channels on which service is impaired as a
fraction of the total number of days in the month that the
service impairment occurs and the total number of channels
provided by the system in the absence of an impairment.
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17. Special Provisions: The Company shall provide the following facilities with
service
(A.) When requested by the County Commission and providing that the
Cable System passes within 150 feet thereof, the Company shall
provide one free outlet of Basic CATV service and such aspects
of Expanded CATV service, if any, as the Company may from time
to time make available, to the following facilities:
(1) Public schools and community colleges with the
County, and
(2) Fire and Police Stations and other buildings owned
and controlled by the County used for public
non-residential purposes.
18. System Construction and Equipment Standards: The Cable System shall be
installed and maintained in accordance with standard good engineering practices
and shall conform when applicable with the National Electrical Safety Code and
the Federal Communications Commission's Rules and Regulations as they apply.
19. Force Majeure: Prevention or delay of any performance under this Franchise
due to causes beyond the reasonable control of the Company or County, including
without limitation, Acts of God, acts of the public enemy, orders or acts of any
governmental authority or court, or strikes or other labor disturbances shall
not be deemed noncompliance with or violations of this Franchise.
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
above written.
XXXXXXXX COUNTY, TENNESSEE
By: /s/ Xxxxx X. Xxxxxx
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County Executive
ENSTAR CABLE CUMBERLAND VALLEY
By: /s/ Xxxxxx Xxx
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Vice President
Attest: Attest: /s/ Xxxxx Xxxxxx
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