EM / 57 ' AGREEMENT /

Transcription

1 EM / 57 ' AGREEMENT / This agreement entered into by and between Kingdom Access Television ( KATV ), PO Box 262, Lyndon Center, VT , and Helicon Group L.P., d/b/a Charter Communications ( the company ) 1 Telecom Way, PO Box 350, Danville, Vermont this day of_, WHEREAS KATV and the Company desire to enter into an agreement witch covers the future nancial obligations of the Company on behalf of its subscribers with respect to PEG access programming, specically for the duration of the certificate of public good. 1.0 Definitions 1.1 Capital Expenses means those expenditures associated with the purchase of capital equipment required providing PEG programming. 1.2 Public Access Funding Obligations means all support obligations (including Operating Expenses and Capital Expenses) of the Company under state and Federal law for the provision of public access programming within the System. 1.3 Gross Revenues means any and all compensation derived by the Company from the operation of the Cable Television System within the System, (Subscriber revenues) \ including but not limited to regular service charges, pay programming, pay-per-view revenues, installation revenues, and any other revenues excluding revenues from the sale of a capital asset not in the ordinary course of business (cable equipment sales to subscribers shall not be deemed within the foregoing exclusion); bad debt; third-party billings, taxes in the nature ofa sales tax, if any, advertising, home shopping service revenues, advertising and also excluding any revenues required to be excluded from franchise fee calculations under the Telecommunications Act of 1996, as amended and by decisions of the F.C.C. l.4 Operating Expenses means all expenses associated with providing public access programming, including the lease or purchase of studio and ofce space from the Company or other lessor or seller, other than Capital expenses. 1.5 System means the Company s cable television operations in the towns of Burke, Wheelock, Lyndon, Kirby, Danville, St. Johinsbury, Concord, Waterford, Peacham, Barnet, Groton, Ryegate, Newbury, Bradford, Sutton and Sheffield and any other towns or future towns considered to be part ofthe St. Johnsbury/Bradford service area. 1.6 Year means the twelve-month period from January l to December Vendors means one or more entities that provide services to KATV 1.8 PEG means Public, Educational, & Governmental television.

2 /-\ 2.0 Term of Agreement This term of this agreement shall commence, January 2004, and shall expire on September 8th 2015 and or the term of the Company s CPG, docket Rep_r_esent:ati0ns and Warranties 3.1 KATV, represents and warrants that it is the authorized representative of all subscribers of the Company within the System and all municipalities within the System with respect to public, educational and government programming and that is duly organized, validly existing and in good standing under the laws of the State of Vermont and has full power and authority to enter into this agreement. 3.2 KATV represents and warrants that the person executing this Agreement on KATV s behalf, is acting pursuant to proper authorization and that this Agreement is the valid and binding obligation of KATV, enforceable in accordance with its terms. 3.3 KATV acknowledges its affirmative duty to provide all reasonable and needed access services in each and all communities in its service area. 3.4 The Company represents and warrants that it is a Vermont limited partnership duly organized, validly existing; and in good standing under the laws of the State of Vermont and has full power and authority to enter into the Agreement. A 3.5 The Company represents and warrants that the person executing this Agreement on the lcompany s behalf is acting pursuant to proper authorization and that this agreement is the valid and binding obligation of the Company, enforceable in accordance with its terms. 3.6 KATV acknowledges and agrees that should other access groups emerge to serve subscribers Within the System, all operating and capital funds allocated to KATV by this Agreement may be reallocated amongst the different groups. Each group shall receive a prorated share of the funds from the municipalities they serve (not the entire System unless they serve the entire System). In addition, funds will be allocated for each component of PEG (Public access, Government access and Education access) on an equal share in compliance with the Vermont Public Service Bo-ard s Rule 8.0 section The Company/ s Obligation 4.1 Operating Fund The company shall disburse by mail or electronic wire transfer to KATV an amount equal to 4.25% of its annual gross revenues for the system on a monthly basis unless otherwise agreed to by parties. Alternative methods of disbursement may be agreed to by the parties. g

3 . In Additional Capital Funding addition to the annual grant for which provision is made in Section 4.], KATV and the Company will consult on future equipment and capital needs which shall be funded by the Company not to exceed one-halfof one percent (5%) of annual Gross Revenues for the System and disbursed quarterly. 4.3 General Obligations Each disbursement (as covered in sections 4.1 and 4.2 above) may include a Summary of Revenues Subject to Franchise Fee statement; or as a minimum, ninety (90) days after the end of the company s fiscal year, the company shall provide a statement for the entire scal year. The combined total annual disbursement of operating and capital funding will not exceed 4.75% ofthe Company s annual gross revenue for the System. T 4.4 Interconnection/Live Drops The Company shall provide two fiber-optic drops, or access points for the transmission of signal upstream to the Company s Head End from places in the communities within the System desirable for the production of live programming as determined jointly by the Company and KATV. The company and KATV agrees to consult with KATV on the feasibility of alternative routing from their Head End for program and preview routing and switching As part ofthis agreement, the company will provide the necessary interconnection-transmission equipment for current sites and additional sites agreed to in Schedule A, the cost of which shall not exceed maxim um spending [of Gross Revenues] as provided by Federal law. For any future agreed to sites, KATV shall provide necessary transmission equipment. The following provisions shall also apply: All existing drops in the system will continue to be maintained and to be active as shown in Schedule A; Those new sites identified on Schedule A attached hereto, shall be installed by the dates indicated; The company reserves the right to refuse any future sites for technical or cost reasons; All future drops shall be a municipal building orjointly determined as a major public facility. 4.5 Promotional Support As a minimum, the Company will comply with section 35 of Docket 6521 (the Company s CPG). The company agrees to work with KATV to promote its programming including from time to time recognition in its advertising. The Company will assist KATV in placing its programming in the local newspapers television listing grid to the extent feasible and annual insertion in the company billing. 4.6 PEG Channels The company agrees to make channels available in accordance with Rule 8 with a maximum number ofthree channels. 5.0 Technical and Administrative Support

4 5.l The company shall appoint a PEG liaison who shall be available to respond to PEG access need and queries. For technical problems, the company will respond within twenty-four hours, and will make best efforts to correct cable-related problems within twenty-four hours of dispatch. For information requests, the company will comply with its PEG plan as submitted to the Public Service Board. 5.2 The company s liaison and other representatives shall meet semi-armually when requested with representatives of KATV or at other times as agreed to by both parties. 6.0 KATV Obligations 6.1 KATV acknowledges and agrees that the sums set forth in Section 4 of this Agreement represent a reasonable level of support for public access, educational access and governmental access programming. The nancial support set forth in Section 4., fullls the company s obligation under Title 30 and it s Certicate of Public Good. 6.2 KATV will administer the Operating Expense and Capital Expense funds in order to provide a reasonably broad range of public, educational and government programming on the access channels pursuant to section 4.6 to subscribers in the System. KATV agrees to consult with the Company on capital purchases with regards to technical trends, cost and technical needs. 6.3 KATV agrees to furnish nancial data requested by the company in the forms of Annual A. Tax Returns, Budgets and reports generated by KATV's Accountant outlining the use of funds provided. This includes any entity hired to manage operations for KATV. 6.4 The parties acknowledge that KATV may enter into a contract with one or more Vendors to perform part or all of KATV s obligations under this Agreement. KATV agrees to supply to the Company annually, no later than March l of each year, a written list of Vendors (if any) that provide services to enable KATV to perform its obligations under this Agreement in an amount exceeding Ten Thousand Dollars ($10,000) during the previous calendar year. IKATV further agrees by such date to provide to the Company KATV s written certication (a) detailing the measures KATV has taken, which may include a formal audit, an informal audit or KATV s review of the Vendor s books and accounts, to ensure that the monies paid by KATV to Vendors were used to perform part or all of KATV s obligations under this Agreement and (b) that monies paid by the Company to KATV s Vendors have been expended solely for purposes of KATV s performance ofits obligations under this Agreement. 7.0 Submission to Public Service Board 7.1 The parties agree to submit this Agreement to the Vermont Public Service Board in connection with the Company s required public access funding plan for the System. The parties further agree that the Public Access Funding obligations outlined herein will allow KATV to provide a reasonably broad range of public access programming in the system for the duration of the Company s Certicate of Public Good as granted in Docket No. 652]..\

5 8.0 Notices 8.1 Any notice to the Company required under this Agreement shall be in writing and sent by certied mail, to the Company at the following address: Attn: Director of Operations Attn: SR VP Operations Northeast Division Charter Communications Charter Communications. 1 Telecom Way 11 Commerce Road Danville, Vermont Newtown, Connecticut Any notice to KATV required under this Agreement shall be in writing and sent by certied mail, to the KATV at the following address: Kingdom Access Television KATV PO Box 262 Lyndon Center, VT Dispute Resolution 9.1 For all disputes, the parties agree that if they are unable, with reasonable effort, to resolve any dispute arising out of the construction, application or ability to enforce this Agreement, either or both of them may petition the Public Service Board for a declaratory ruling as to the construction, application or ability to enforce this Agreement. The company reserves the right to submit any dispute to a court of competent jurisdiction Miscellaneous Provisjpns 10.1 The section headings used in this Agreement are for convenience only and shall not affect the construction of this Agreement This agreement has been negotiated by and between the parties, and represents their entire Agreement. This supersedes all prior agreements, understandings, or covenants, whether oral or written. lt may not be modied except in writing, which modification must be signed by both the Company and KATV The parties each represent and warrant that this Agreement has been entered into voluntarily, and that the terms of the Agreement are final and binding. It is further represented and warranted that each party has read and fully understands the terms of this Agreement This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties and their successors This Agreement shall be construed and governed in accordance with Federal and Vermont Law Execution of this Agreement by both parties shall not constitute a waiver of either party s

6 obligations or rights under any applicable federal and/or state laws Should any conict arise between the terms herein and applicable Federal or State law, then the applicable law shall control. If any section, sentence, paragraph, term or provision of the Agreement is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory agency havingjurisdiction thereof, such determination shall have no effect on the validity ofany other section, sentence paragraph, term, or provision hereof, all of which shall remain in full force and effect for the term ofthe Agreement. l0.8 It is acknowledged and agreed that this Agreement is the product of negotiation by the parties, acting on the advice of council, and that it is to be considered as jointly drafted by both parties. Kingdom Access Television James M. Dimick Administrative Coordinator -_ Dated:, 2004 The Helicon Group, LP d/b/a Charter Communications Joshua L. Jamison Sr. VP Operations Northeast Division Charter Communications Dated:, 2004