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Exhibit 10.17
MASTER POLE ATTACHMENT AGREEMENT
THIS AGREEMENT, made this day of January 12, 1998 by and between South
Carolina Electric and Gas ("Owner") and KNOLOGY Holdings, Inc. d/b/a Knology of
Charleston, on behalf of its operating subsidiaries, if any ("Permittee"), the
parties hereto, witnesses that:
WHEREAS Owner owns, operates and maintains distribution poles for use
in its utility operations within its retail service territory in South Carolina;
and
WHEREAS Permittee furnishes or intends to furnish communications
services within the State of South Carolina or wired television service to
residents of the unincorporated areas of ____________________________, and the
Cities of ______________________________, and for such purpose desires to attach
cables, wires and associated appliances of a communications or cable television
nature ("Facilities") in the space on Owner's poles appropriate for such
attachments; and
WHEREAS Permittee is franchised and has consent and authorization (to
the extent required) to place its Facilities within or over the public and
private spaces in or over which the poles to which Permittee wishes to attach
are located; and
NOW, THEREFORE, in consideration of the mutual rights and obligations
hereby conferred, the parties mutually agree as follows:
SEC. 1. DEFINITIONS
(A) Telecommunications Act. The term "Telecommunications Act" refers
to the Communications Act of June 19, 1934, 48 Stat. 1604, as amended by the
Pole Attachment Act of 1978 and the Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 (1996), as codified at 47 U.S.C. sec. 224.
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(B) Cost. The term "cost" refers to charges made by Owner to Permittee
for specific work performed, and shall be the estimated cost of performing the
work, including labor, materials, administrative expenses, overhead, any
applicable taxes and its authorized rate of return.
(C) Facilities. The terms "Facility" and "Facilities" refer to any
property or equipment utilized in the provision of telecommunications services.
(D) Make-Ready Work. The term "Make-Ready Work" refers to all work
performed or to be performed to prepare Owner's poles for the requested
attachment of Permittee's Facilities. "Make-Ready work" includes, but is not
limited to, the rearrangement, transfer, replacement, and removal of existing
facilities on a pole where such work is required to accommodate Permittee's
Facilities or the performance or other work required to make a pole usable for
the initial placement of Permittee's Facilities.
(E) Permit. The term "Permit" refers to any permit issued pursuant to
this Agreement and may, if the context requires, refer to pole attachment
permits issued by Owner prior to the date of this Agreement.
(F) Permittee. The term "Permittee" refers to a person or entity which
has entered or may enter into an agreement or arrangement with Owner permitting
such person or entity to attach its Facilities to Owner's poles.
(G) Pole. The term "pole" refers to those utility poles used for the
local distribution of electrical power but only those utility distribution poles
owned or controlled by Owner and does not include utility distribution poles
with respect to which Owner has no legal authority to permit attachments by
other persons or entities.
(H) Third Party. The terms "third party" and "third parties" refer to
persons and entities other than Permittee and Owner. Use of the term "third
party" does not signify that any such person or entity is a party to this
Agreement or has any contractual rights hereunder.
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SEC. 2. CHARACTER OF SERVICE
(A) Service rendered under this Agreement will consist of supporting
the attachment of Facilities above the ground on Owner's poles as provided
herein, to the extent that such attachments are or continue to be permitted from
time to time under the terms of Owner's right, license, right-of-way, easement,
franchise or other permission to install and use the poles on public or private
property involved.
(B) All attachments shall be suitably designed, installed and
maintained in accordance with good engineering practice and shall comply with
the ground-clearance, electrical safety clearances, and other standards and
requirements of the National Electric Safety Code, applicable federal, state and
local laws and regulations, and the rules, regulations and construction
standards of Owner as set forth in its Distribution Construction Standards J-1
through J-8, attached as Exhibits 1 to 8.
(C) The attachments shall be subject at all times to amendment of the
standards and requirements set forth in sec. 2(B). Permittee agrees to rearrange
its Facilities in accordance with changes in the standards published in the
publications specified in sec. 2(B) of this Agreement.
(D) Except as required in other Sections of this Agreement, Owner
shall not be liable to Permittee for any alteration, relocation or removal of
existing poles or attachments caused thereby or for any interruptions to, or any
interference with, the operation of Permittee.
(E) Title to the attached Facilities shall remain vested in Permittee;
however, their presence on a pole does not in any way create in Permittee any
right of ownership, possession or control of the pole occupied, regardless of
the period of occupancy.
SEC. 3. REQUEST FOR ATTACHMENT
(A) No attachment shall be made to a pole under this Agreement except
as expressly permitted by Owner in writing, but access shall be permitted to the
extent required by the Telecommunications Act and the FCC regulations.
(B) Permittee shall submit an application ("Permit Application") which
includes all the information necessary for Owner to determine, upon inspection
and evaluation of the affected poles, the extent to which existing poles and
existing
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or planned attachments thereto must be altered to accommodate Permittee's
attachments.
(i) The Permit Application shall include evidence,
satisfactory to Owner, of Permittee's authority to erect and maintain its
Facilities within public streets, highways and other thoroughfares involved. If
Permittee has no such authority or fails to submit it upon request, no permit
application shall be considered, and any which may have been granted may be
revoked at Owner's discretion.
(a) If Permittee claims that its attachment rate should
be adjusted according to the FCC formula for CATV providers, the Permit
Application shall also contain a statement that the facilities will be used
solely to provide cable television service.
(ii) No Permit Application will be accepted by Owner if
Permittee is in arrears on any payments due to Owner, including but not limited
to annual attachment charges, engineering fees, fees Make-Ready Work,
unauthorized use fees or other penalties for Permittee's other attachments.
(iii) Additional Permit Applications are required for any
change or addition to Permittee's attached facilities, including, but not
limited to, any change in the size or type of cable.
(C) At the time the Permit Application is submitted to Owner, Owner
will xxxx Permittee for the cost of the inspection and evaluation, which cost
shall include Owner's overhead. Payment by Permittee will be due upon receipt by
Permittee of Owner's invoice.
(D) If alterations to Owner's facilities are necessary to accommodate
Permittee's attachments, Owner will estimate the cost of this Make-Ready Work,
including Owner's overhead and applicable taxes.
(i) The estimates for inspection and evaluation and for
Make-Ready Work may include the costs of inspecting, evaluating, and altering
Owner's attachments to poles owned by other entities.
(ii) The estimate for Make-Ready Work shall be valid for a
period of sixty (60) days.
(iii) Owner's Make-Ready Work shall be included in Owner's
normal work load schedule in the geographic areas where
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the relevant poles are located and shall not be entitled to priority,
advancement, or preference over other work to be performed by Owner in the
ordinary course of its business.
(iv) If Permittee desires make-ready work to be performed on
an expedited basis and Owner agrees to perform the work on such a basis, Owner
shall recalculate the estimated charges for Make-Ready Work. If Permittee
accepts Owner's offer, Permittee shall pay such additional charges.
(E) Upon payment by Permittee of the estimated make ready cost, the
fee for inspection and evaluation, and the first year's annual attachment charge
prorated from the date of the application to the end of the year, Permittee will
be issued an appropriate non-exclusive, revocable Provisional Permit to attach
to Owner's poles.
(F) Unless the Provisional Permit is withdrawn, the issuance thereof
will be deemed to authorize all alterations determined by Owner to be necessary.
(G) Issuance of a Provisional Permit applied for shall not be deemed
an opinion of Owner or warranty that such attachments would comply with the
requirements for entry upon and use of the public or private property involved
or with the requirements of the codes, laws and regulations applicable to the
installation, it being understood and agreed that a Provisional Permit supplies
only such authority as Owner has the right to grant. Permittee is responsible
for acquiring any necessary easements, as well as any governmental consents,
additional licenses or permits that may be required and for the costs associated
with the transfer or rearrangement of other pre-existing attachments to Owner's
poles.
(H) Permittee shall not exercise any Provisional Permit by attaching
to Owner's poles until alterations, if any, are completed by Owner.
(I) Permittee shall provide Owner with a proposed construction
schedule before beginning attachment under a Provisional Permit. This schedule
shall include, at a minimum, the name, title, and business address and telephone
number of the manager responsible for construction of the Facilities; the names
of each contractor and/or subcontractor involved in construction activities; and
estimated dates of commencement and completion of construction.
(J) Permittee shall provide notice to Owner when it completes the
attachments of its facilities to Owner's poles.
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(K) Should Permittee not complete its pole attachments within six (6)
months from the date the Provisional Permit therefor is issued, that permit
shall be null and void.
(L) A Provisional Permit shall become an Approved Permit only upon
certification after inspection by Owner that Permittee's attachments meet all
applicable safety and engineering requirements.
(M) Samples of the application and permit forms currently used by
Owner are contained in Appendix B; these forms may be revised by Owner from time
to time consistent with this Agreement.
SEC. 4. CONDITIONS OF ATTACHMENT
(A) An attachment under this Agreement shall be governed by the terms
and conditions of this Agreement and shall also be governed by the terms and
conditions of the Permit issued therefor.
(B) The Permit may state that Permittee's attachment is subject to
Owner's future need for pole space for the provision of electrical services
which may prompt relocation or rearrangement as provided in sec. 7(E) of this
Agreement.
(C) The Permit shall include such standard provisions as Owner may
deem appropriate for all attachments similarly situated. Owner may amend the
standard provisions from time to time and such amended provisions shall be
applicable to existing attachments.
(D) Each attachment to Owner's poles bear a marker or insignia in a
form satisfactory to Owner identifying the facility as Permittee's.
(E) Permittee shall be responsible at all times for the condition of
its Facilities and its compliance with all requirements, specifications, rules,
regulations and standards referenced in sec. 2(B) of this Agreement.
(F) Owner shall have no duty to Permittee either to maintain or to
inspect or monitor the condition of Permittee's Facilities. Neither Owner's act
of inspection Permittee's Facilities nor any failure to inspect those Facilities
shall
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operate to impose on Owner any liability of any kind whatsoever or to relieve
Permittee of any responsibility, obligations or liability under this Agreement
or otherwise existing.
(G) Owner may, however, conduct such inspections and audits of its
poles and any attached Facilities as it deems reasonable and necessary.
(i) Permittee shall bear the costs of an initial inspection to
be completed within sixty (60) days of Owner's receipt of notice concerning
completion of the attachment and of any subsequent inspections, so long as
subsequent inspections are conducted not more often than every three years.
(ii) If routine observation of Permittee's attachments by
Owner indicates the possible violation of good, safe engineering practice or the
other requirements of this Agreement, Owner may conduct more frequent
inspections at its own expense; provided however, that if such violations are
detected in the course of the inspection, Permittee shall reimburse Owner for
the cost of such inspection.
(iii) Owner's right to inspect attachments originally
designated to provide only one-way transmission of video programming or other
programming services shall include the right to examine signal transmission to
detect any unannounced two-way use of such attachments. Owner and Permittee
shall negotiate in good faith concerning the methodology used to conduct such
inspections.
(H) Should an attachment require maintenance, repair, alteration or
relocation in order to comply with good, safe engineering practice and the other
requirements of this Agreement, including, but not limited to, maintaining
adequate clearance between Permittee's attachments and surrounding vegetation,
Owner may require Permittee to make such changes or conduct such maintenance or
repairs.
(I) In an emergency, or otherwise after notice to Permittee of the
required work, Owner may perform such work at Permittee's expense.
(J) Permittee shall provide Owner with the name, title, and business
and telephone number of the manager responsible for routine maintenance of the
Facilities and shall thereafter notify Owner of changes to such information.
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(i) Upon Owner's request, the Permittee's designated manager
shall identify any contractor, subcontractor or other person performing
maintenance activities on Permittee's behalf and shall also provide such
additional documentation as reasonably necessary to demonstrate that Permittee
and all persons acting on its behalf are complying with the requirements of this
Agreement.
(ii) Upon Owner's request, Permittee shall produce a copy of
its Permit for any attachment specified by Owner.
(K) Unauthorized attachments discovered by Owner may be allowed to
remain on the pole if otherwise in conformity with this Agreement upon payment
by Permittee of the unauthorized attachment charge specified in Appendix C(3)
for each such attachment not authorized by the Permit, plus annual charges at
the current rate for each January 1 from the time of unauthorized installation
as estimated by Owner.
(L) Should the Permittee decide to use for any other purpose
attachments originally designated to provide only one-way transmission of video
programming or other programming services, it shall provide written notice to
the Owner at least sixty (60) days before beginning such services.
(M) Unannounced use of attachments to provide services other than the
one-way transmission of video programming or other programming services may be
allowed to continue upon payment by the Permittee of the expanded use charge
specified in Appendix C(4) for all attachments, plus annual charges at the rate
charged to telecommunications carriers for each January 1 from the commencement
of the unannounced use as estimated by the Owner.
(N) If, in Owner's judgment, made in good faith, the unauthorized
attachment or unannounced use of attachments to provide services other than
cable television services evidences a pattern of willful avoidance by Permittee
of the requirements of this Agreement, Owner may require Permittee to
immediately remove the unauthorized attachment or may itself remove the
unauthorized attachments at Permittee's expense. Owner may also terminate this
Agreement and require Permittee to remove all attachments from its poles or may
itself remove all Permittee's attachments at Permittee's expense.
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SEC. 5. ANNUAL ATTACHMENT CHARGES
The annual charge per pole shall be in accordance with Appendix C. The
annual charge shall be based on the number of Owner's poles as of January 1st of
each year for which Permits have been issued (subject to the minimum annual
charge stated in Appendix C) and shall be set pursuant to the applicable FCC
formula. Permittee shall pay an additional annual charge for each power supply
directly attached to Owner's poles. Owner will xxxx Permittee as soon as
practicable after January 1st of each year. Billing for energy used by power
supplies shall be monthly at the metered rate. Bills rendered under this
Agreement shall be payable by Permittee within twenty-five days of the date
rendered. Owner may impose a monthly late payment charge of one and one half
percent (1-1/2%) on any unpaid balance for the annual attachment charge,
twenty-five (25) days after billing date, and on any unpaid balance at each
subsequent monthly billing. Nonpayment of any such amount within sixty (60) days
shall constitute a breach of this Agreement. No refund of any attachment charge
will be made on account of any change in the number of attaching entities.
SEC. 6. POLE ALTERATIONS AT PERMITTEE REQUEST
(A) Pole capacity for attachments under this Agreement is available on
a first-come, first-served basis. Pole capacity cannot be reserved by Permittee
for future use and should be used as soon as it has been made available by
Owner.
(B) Owner will attempt to accommodate Permittee's request for a taller
or stronger pole if reasonably possible, consistent with Owner's use of the
pole.
(C) If a pole must be replaced or modified or relocated in order to
accommodate Permittee's request for an attachment, and if Owner agrees to
perform such work, Permittee will make a contribution-in-aid-of-construction to
Owner in the amount of the estimated installed cost of the alterations including
the cost of transferring or rearranging the facilities of Owner and any other
pre-existing attachments.
(i) The contribution-in-aid-of-construction, before any credit
for any existing pole or poles, shall be grossed-up for taxes according to a
schedule provided by Owner.
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(ii) Guying and anchors required by the attachment of
Permittee's Facilities (including all necessary permission therefor), shall be
provided and installed by Permittee.
(iii) Permittee shall obtain the necessary agreements and
shall reimburse other attaching Permittees for the cost of transferring or
rearranging their facilities as the result of the attachment.
(iv) Permittee will reimburse Owner for alterations and
inspection and evaluation performed by Owner on poles not owned by Owner.
SEC. 7. POLE RELOCATION AND REARRANGEMENT BY OWNER
(A) If Owner relocates or replaces its pole(s), rearranges the
facilities on its pole(s) to accommodate Owner's needs for additional pole space
or other parties' attachment request(s), Permittee will be offered space under
this Agreement for existing attachments on the relocated or rearranged pole.
(B) The relocation and rearrangement of Permittee's attached
Facilities shall be performed by Owner or at Owner's option, by a contractor
specified by Owner, within a reasonable time.
(C) Permittee shall not be responsible for charges associated with
relocations or rearrangements made to accommodate Owner's need for additional
pole space or of a third party's request for attachment, unless Permittee
requests modification of or addition to its existing attached facilities in
connection with the relocation or rearrangement or unless Owner is recovering
previously reserved pole space.
(D) If Permittee adds to or modifies its existing attached Facilities
on the relocated or rearranged poles at any time thereafter or if the relocation
or rearrangement occurs for any reason other than Owner's or a third party's
need for additional space, Permittee shall bear its proportionate share of the
expense of the relocation or rearrangement.
(E) If the Owner is recovering previously reserved pole space,
Permittee shall bear a proportionate share of the expense of the replacement,
relocation, or rearrangement with all other Permittees whose attachments were
subject to space reservation by Owner.
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(F) If the replacement, relocation or rearrangement is required by
order of a municipality or other governmental authority, Permittee shall bear
its proportionate share of the expense of the removal, replacement, relocation,
or rearrangement.
SEC. 8. POLE REMOVAL
If Owner no longer requires the use of its pole on which Permittee's
attachments are located, Owner will give Permittee, wherever possible, not less
than sixty (60) days notice to remove its attachments, and after such notice
period, remaining Permittee attachments will be deemed abandoned and Owner may
at any time remove the abandoned attachments at Permittee's expense. Permittee
waives any damage suffered as a result of removal of attachments deemed
abandoned.
SEC. 9. ATTACHMENT REMOVAL
(A) In the event of Permittee's failure to observe any condition of
this Agreement or applicable Permit issued hereunder, Owner may at any time give
not less than sixty (60) days notice, wherever possible, to Permittee to remove
its attachments from any Owner pole, and after such notice period any remaining
Permittee attachments will be deemed abandoned and Owner may at any time remove
the abandoned attachments and/or the pole at Permittee's expense. Permittee
waives any damage suffered as a result of removal of attachments deemed
abandoned.
(B) If Permittee desires to remove all of its attachments from any
pole, Permittee shall notify Owner of the description, number and location of
attachments removed. A Notice of Removal form is contained in Appendix B. No
refund of any attachment charge will be made on account of such removals.
SEC. 10. WORKER QUALIFICATIONS
(A) Permittee shall engage only qualified workers who are trained and
experienced and who know and appreciate the dangerous character of electricity
and the dangers of working in proximity to energized electric lines, shall warn
the workers of such danger, shall provide competent supervision of the work
involved in making any attachments, maintenance work or rearrangements or other
physical changes in the attachments, and shall ensure that
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all workers and supervisors know and comply with all applicable NESC and OSHA
rules, regulations and guidelines.
(B) All personnel authorized to have access to Permittee's facilities
shall, while working on or in the vicinity of Owner's poles, carry with them
suitable identification and shall, upon the request of any employee of Owner,
produce such identification.
SEC. 11. PROTECTION OF OWNER'S FACILITIES AND OTHER PROPERTY
(A) Permittee shall exercise reasonable precautions to avoid damage to
the facilities of Owner or of others using Owner's poles and assumes all
responsibility and liability for any and all costs and expenses for such damage,
whether direct or consequential. Permittee shall make immediate report to Owner
of the occurrence of any such damage and shall reimburse Owner for the expense
incurred in repairing any such damage.
(B) Neither Permittee nor any persons acting on its behalf, including
but not limited to Permittee's employees, agents, contractors, and
subcontractors, shall engage in any conduct which damages either the facilities
of Owner or of others using Owner's poles or public or private property in the
vicinity of Owner's poles, interferes in any way with the use or enjoyment of
public or private property except as expressly permitted by the owner of such
property, or creates a hazard or nuisance on such property (including, but not
limited to, a hazard or nuisance resulting from any abandonment or failure to
remove Permittee's Facilities or any construction debris from the property,
failure to erect warning signs or barricades as may be necessary to give notice
to others of unsafe conditions on the premises while work performed on
Permittee's behalf is in progress or failure to restore the property to a safe
condition after such work has been completed.) Permittee assumes all
responsibility and liability for any and all costs and expenses for such damage,
whether direct or consequential, and shall make immediate report to Owner of
such occurrence and shall reimburse Owner for any expense incurred in repairing
any such damage.
SEC. 12. INDEMNITY AND INSURANCE
(A) PERMITTEE, FOR ITSELF AND ITS EMPLOYEES OR CONTRACTORS, ASSUMES
ALL RISKS OF INJURY AND PROPERTY DAMAGE RESULTING FROM WORK PERFORMED IN
CONJUNCTION WITH THIS AGREEMENT OR ANY PERMIT
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ISSUED HEREUNDER.
(B) Permittee shall hold harmless, indemnify and defend Owner, its
successors or assigns, against and from all loss, cost or expense (including
attorneys fees and court costs) arising out of claims of damage to property,
including but not limited to trespass upon real property or damage to property
of Permittee and of Owner, claims of injury or death to any person, including
payments under any workers' compensation law or under any plan for employee
disability and death benefits, and claims of lost profits, business loss or
interruption of service, which may arise out of or be caused by the erection,
maintenance, existence, use, removal or abandonment of Permittee's attachments
or by the proximity or connection of the facilities, including but not limited
to cable, wires, power supplies, apparatus and appliances of Permittee to any of
the facilities belonging to Owner or to parties jointly using Owner's poles, or
by any activity of Permittee on, around, or in the vicinity of Owner's poles,
regardless of whether same may have resulted from the claimed or actual sole or
joint negligence of Owner.
(C) Permittee further agrees to carry such insurance as is necessary
and acceptable to Owner in accordance with the requirements set forth in
Appendix D of this Agreement. Permittee also agrees not to plead any immunity or
similar protection from suit or liability afforded by workers compensation or
other equivalent laws as a defense or bar to an action by Owner to enforce this
covenant of indemnification.
SEC. 13. PERFORMANCE BOND
Permittee shall furnish satisfactory evidence of a performance bond in
the amount of sixty thousand dollars and no cents ($60,000.00) or fifty dollars
and no cents ($50.00) per pole, whichever is greater, to guarantee the payment
of any sums which may become due/to Owner for annual attachment charges,
inspection fees, engineering fees or for other work performed for the benefit of
Permittee under this Agreement, including the removal of attachments as provided
for in sec. 7 and/or 8 of this Agreement. The amount of the performance bond is
subject to adjustment whenever in the judgment of Owner, such adjustment is
required to protect the payments due Owner.
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SEC. 14. REGULATORY AUTHORITY
This Agreement is subject in all respects to the jurisdiction of any
governmental authority or regulatory agency which has jurisdiction by law and to
either party's continuing entitlement to file or to make application for or to
take any other action to make effective unilaterally, with any governmental
authority or regulatory agency having jurisdiction in the premises, at any time
and from time to time during the term of this Agreement. Provided, however, that
Permittee agrees to be bound by the annual charge set pursuant to Appendix C
unless a different rate is set in a final and non-appealable order entered as a
result of a complaint pursuant to 47 C.F.R. Part 1, Subpart J, sec. 1.1401 et
seq. filed by this Permittee within thirty (30) days of the imposition of the
adjusted charge. If the Federal Communications Commission or any other
governmental authority or regulatory agency having jurisdiction promulgates
regulations that directly and materially affect the economic terms of this
Agreement, then either party may request amendment of this Agreement to address
issues raised by the new regulations. If the parties cannot agree to the
proposed amendment(s) after good faith negotiation, either party may terminate
this Agreement upon ninety (90) days notice, in writing, to the other.
SEC. 15. DISPUTES
(A) The parties hereto acknowledge the complaint jurisdiction of any
governmental authority or regulatory agency which has jurisdiction by law to
resolve any dispute arising hereunder, but hereby agree first to negotiate in
good faith to attempt to resolve any such dispute by mutual agreement.
(B) The parties hereto further agree that any action to enforce the
terms of this Agreement may be instituted and prosecuted in the courts of the
County of Richland, State of South Carolina, and that each party does waive any
and all defenses relating to venue and jurisdiction over the person or the
subject matter in such courts.
SEC. 16. TERMINATION OF PRIOR AGREEMENTS
This Agreement supersedes all prior agreements between Owner and Permittee with
respect to any attachment which is the subject of this Agreement. Each party
shall promptly determine and
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inform the other of all existing permits and the calculation of charges under
this Agreement with respect thereto; and said existing permits shall be
reissued, individually or in groups, pursuant to this Agreement.
SEC. 17. NO WAIVER
Failure to enforce or insist upon compliance with any of the terms or
conditions of this Agreement shall not constitute ratification of any act or
omission, or a waiver or relinquishment of any such terms or conditions or of
any other provisions of this Agreement, which shall instead remain in full force
and effect at all times.
SEC. 18. NO THIRD PARTY BENEFICIARIES
The terms of this Agreement are for the sole and exclusive protection
and use of Owner and Permittee and their respective successors and assigns. No
party shall be a third-party beneficiary of this Agreement, and no provision of
the Agreement shall operate or inure to the use and benefit of any such third
party.
SEC. 19. NO ASSIGNMENTS
Permittee shall not assign, transfer or sublet its rights under any
permit granted pursuant to this Agreement without the prior written consent of
Owner; provided, however, that Permittee may, without such consent, assign its
rights and obligations under this Agreement (i) in connection with a corporate
reorganization, to any affiliate, or (ii) in connection with a merger,
consolidation or sale of substantially all of the Permittee's assets to an
unrelated third party. In the event of an assignment following corporate
reorganization, merger, consolidation, or sale of substantially all assets, the
Permittee's rights and obligations under this Agreement shall be assumed by its
successor in interest any such transaction and shall not be transferred separate
from all or substantially all of its other business assets, including the
Facilities that are the subject of this Agreement. Owner shall not unreasonably
withhold its consent to the assignment or transfer of Permittee's rights;
however, Permittee acknowledges it is absolutely prohibited from subletting its
rights or allowing any third party to physically attach additional facilities to
Permittee's
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attachments, whether by overlashing or otherwise. As a condition to any sale,
transfer, license, assignment or other disposition of all or any portion of
Permittee's rights and obligations under this Agreement, Permittee's successor
in interest shall execute a counterpart, become a party, or execute an agreement
with terms substantially similar to this Agreement.
SEC. 20. EFFECT OF LAWS AND REGULATIONS UPON AGREEMENT
The rates, terms, and conditions of this Agreement are governed by the
Telecommunications Act and the FCC rules. Owner warrants that it will not levy
any fee or charge upon Permittee in excess of what Owner levies upon other users
similarly situated. Should any provision of the Telecommunications Act that
directly and materially affects the economic terms of this Agreement be declared
unconstitutional or otherwise unenforceable by any court or repealed by act of
the United States Congress, then either party may request amendment of this
Agreement to address issues raised by the new regulations. If the parties cannot
agree to the proposed amendment(s) after good faith negotiation, either party
may terminate this Agreement upon ninety (90) days notice, in writing, to the
other.
SEC. 21. NOTICE
Any notice or filings required to be sent or made by this Agreement
shall be sent by United States Mail, addressed to the respective parties at:
Party Address
Owner South Carolina Electric & Gas Company
c/o Xxxx Xxxxxx
Administrator, Telecom/Cable Attachments
Mail Code X-00
Xxxxxxxx, XX 00000
Permittee
SEC. 22. SEVERABILITY
The provisions of this Agreement are severable, and if any part of it
is found to be unenforceable, the other parts shall remain fully valid and
enforceable.
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SEC. 23. AUTHORIZATION TO EXECUTE AGREEMENT
The execution, delivery and performance by Permittee of this Agreement
has been duly and validly authorized by all necessary corporate action of
Permittee and constitutes the legal, valid and binding obligation of Permittee
enforceable against it in accordance with its terms.
SEC. 24. TERM OF AGREEMENT
Except as provided in sec. 20, this Agreement shall continue in force
and effect for two years, and thereafter until terminated upon ninety (90) day's
notice in writing by either party to the other. Permits issued hereunder shall
terminate with this Agreement (if not sooner according to their terms), unless
provision is made in any successor agreement between the parties to continue the
Permits theretofore issued.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
WITNESSES: SOUTH CAROLINA ELECTRIC
& GAS COMPANY (OWNER)
/s/ XX Xxxxxx By: /s/ D. Xxxxxxx Xxxxxx
------------------------------ -------------------------------------
D. Xxxxxxx Xxxxxx
----------------------------------------
(Printed Name)
Its: VP Electric Service
------------------------------------
KNOLOGY Holdings, Inc.
----------------------------------------
(Permittee)
/s/ Xxxxx Xxxxx By: /s/ Xxxx X. XxXxxxx
------------------------------ -------------------------------------
Xxxx X. XxXxxxx
----------------------------------------
(Printed Name)
Its: VP - Construction
------------------------------------
18
APPENDIX A
PERMIT APPLICATION
APPLICATION NUMBER
-----------------------
______________________, S.C.
_____________________, 19___
South Carolina Electric and Gas Company
In accordance with the terms of the Telecom Agreement dated ___________, 19____,
application is hereby made for permission to make attachments to Owner's poles
located in ___________________________ (City or Town/County), the location being
more specifically described as ____________________________ (give street names).
Attached to this application are a sample of marker or other insignia that will
be used to identify facilities as Permittee's, a list of poles to which
attachment is sought and strand map(s) showing strand lengths, cable routes,
pole numbers, guying and work required, cable type [coaxial or fiber optic], and
type and location of power supplies, amplifiers or any other facility to be
attached.
---------------------
By: ---------------------
---------------------
Title:
---------------------
--------------------------------------------------------------------------------
PERMIT
--------------------------------------------------------------------------------
Provisional Permit Issued: _____________________________________________, 19____
Permit No. Total No. Poles
---------------------------- ------------
By: Title:
----------------------------------- ---------------------
(South Carolina Electric & Gas)
Post-construction Inspection Completed/Approved Permit Issued:
___________________________, 19___
By: Title:
----------------------------------- ---------------------
(South Carolina Electric & Gas)
00
XXXXXXXX X
NOTIFICATION OF REMOVAL BY PERMITTEE
___________________________, S.C.
___________________________, 19__
South Carolina Electric & Gas Company
In accordance with the terms of the Telecom Agreement dated
________________, 19 ___, kindly cancel from your records the following poles
covered by Permit No. _________________ from which attachments were removed
on _____________________, 19 ___.
Location
------------------------------------------------------------------------
City or Town - County or State
Map showing location of facilities removed.
Pole Pole
Numbers Locations
-------------------------------------------------------------
-------------------------
Permittee
By
-------------------------
-------------------------
Title
Notice Acknowledged
___________________________, 19 ____ South Carolina Electric & Gas Company
Owner
By
-------------------------
-------------------------
Title
Notice No.
----------------------
Total Poles Discontinued
------------------------
20
APPENDIX C
----------------------------------
ANNUAL CHARGE FOR POLE ATTACHMENTS
1. The annual attachment charge per pole will be $5.00. There will be an
additional $5.00 charge for all power supplies attached to poles The
parties agree that these rates are just and reasonable.
2. For 1999 and subsequent years, the rate will be adjusted annually in
accordance with the FCC formula setting the maximum allowable rate for
CATV providers (as set forth in 47 U.S.C. sec. 224(d) and regulations
promulgated thereunder) only if the attached facilities are used solely
for the one-way transmission of video programming or other programming
services. Otherwise, or if Permittee offers telecommunications services
(as defined in 47 U.S.C. sec. 3(43) & (46)), the rate shall be adjusted
in accordance with the FCC formula setting the maximum allowable rate
for telecommunications carriers (as set forth in 47 U.S.C. sec.
224(e)(1) and regulations promulgated thereunder). The adjusted rate
will apply to all attachments for which a Permit has been issued and
Owner's Make-Ready Work completed as of January 1 of the year for which
the charge is applicable.
3. The unauthorized attachment charge shall be twenty (20) times the
current annual charge plus annual charges at the then current rate for
each January 1 from the time of unauthorized installation as estimated
by Owner or for five years, whichever is greater. A monthly late
payment charges of one and one half percent (1-1/2%) of the amount owed
for annual charges shall be included in the unauthorized attachment
charge, beginning upon January 25 of the year in which the charges were
incurred and continuing upon any unpaid balance until paid.
4. The expanded use charge shall be twenty (20) times the current annual
charge to telecommunications carriers plus annual charges at the then
current rate for telecommunications carriers for each January 1 from
the time of unauthorized installation as estimated by the Owner or for
five years, whichever is greater. A monthly late payment charges of one
and one half percent (1-1/2%) of the amount owed for annual charges at
the telecommunications carrier rate shall be included in the
unauthorized
21
attachment charge, beginning upon January 25 of the year in which the
charges were incurred and continuing upon any unpaid balance until
paid.
5. The minimum charge to Permittee under this Agreement is $100.00.
22
APPENDIX D
REQUIRED INSURANCE FOR POLE ATTACHMENT PERMITTEES
Before commencing the work under any Permit, Permittee shall procure and
maintain at its own expense, for the duration of the Permit, the following
minimum insurance in forms reasonably acceptable to Owner and with insurance
companies authorized to do business in the State of South Carolina.
A. Worker's Compensation Insurance for statutory obligations imposed
by Worker's Compensation, Occupation Disease, or over similar laws, including,
where applicable, the United States Longshoremen and Harbor Workers Act, the
Federal Employees Act, and the Xxxxx Act. Employers' Liability Insurance shall
be provided with a minimum limit of $5,000,000 per occurrence.
B. Comprehensive Automobile Liability Insurance with $5,000,000
combined single limit per occurrence. This insurance is to apply to all owned,
non-owned, and hired vehicles used by Permittee in the performance of the work.
C. Comprehensive General Liability Insurance (including without
limitation Products/Completed Operations Liability Insurance), and Contractual
Liability Insurance covering all operations required to complete the project,
including coverage for damage caused by blasting, collapse or structural injury
and damage to underground utilities, with $5,000,000 combined single limit per
occurrence. The Products/Completed Operations Liability Insurance shall be
provided for a period of at least one (1) year after completion of the project.
The Contractual Liability Insurance coverage shall insure the performance of the
contractual obligations assumed by Permittee in connection with any work
affecting, pursuant to or arising from any Permit issued by Owner, including
specifically, but without limitation thereto, Section II of the Permits terms
and conditions, under the terms of this Agreement.
The Comprehensive General Liability Insurance coverage shall name
Owner as an additional named insured. This insurance shall not have any "other
insurance" clause or language which would jeopardize the primacy of Permittee's
insurance with respect to Owner's self-insured retention or excess insurance
policies.
23
D. Permittee shall likewise require its contractor or subcontractors,
if any, to carry at least the minimum insurance described in this Article.
Before any of the work is started under this Agreement or any
Permit issued in accordance with this Agreement, unless a current certificate of
insurance has previously been furnished to and approved by Owner, and annually
so long as it maintains attachments upon the Owner's poles, Permittee shall file
with Owner certificates of insurance signed by each of its insurer(s) in the
form set forth in attached Form IN-2, containing the following information in
respect to all insurance carried:
A. Name of insurance company, policy number and expiration date,
B. Limits of insurance,
C. A description of work contemplated and coverage therefore (including a
statement that specific coverages are included in accordance with this
Section where required),
D. A statement indicating that the Owner's Risk Management Department
Administrator of Telecom/Cable Attachments will receive at least thirty
(30) days written notice of the cancellation of any of the policies or
any modification in the insurance that may affect its interest.
24
[A DIAGRAM OF MINIMUM CODE CLEARANCES (VERTICAL)
AT SUPPORTS BETWEEN WIRES AND CABLES CARRIED ON
SAME SUPPORTING STRUCTURE APPEARS HERE]
EXHIBIT 1
25
[A DIAGRAM OF JOINT USE POLE SPACING OPEN WIRE SEC.
DISTRIBUTION-COMMUNICATION-CATV APPEARS HERE]
EXHIBIT 2
26
[A DIAGRAM OF JOINT USE POLE SPACING MULTIPLEX SEC.
DISTRIBUTION-COMMUNICATION-CATV APPEARS HERE]
EXHIBIT 2
27
[A DIAGRAM OF CATV AMPLIFIER INSTALLATION
ON SCE&G FACILITIES APPEARS HERE]
EXHIBIT 2
28
[A DIAGRAM OF CATV AMPLIFIER INSTALLATION
ON SCE&G FACILITIES APPEARS HERE]
EXHIBIT 2
29
[A DIAGRAM OF CATV AMPLIFIER INSTALLATION
ON CATV POLES APPEARS HERE]
EXHIBIT 2
30
[A DIAGRAM OF JOINT USE POLE SPACING
DISTRIBUTION-COMMUNICATIONS-CATV APPEARS HERE]
EXHIBIT 3
31
[A DIAGRAM OF JOINT USE CLEARANCES
DISTRIBUTION-COMMUNICATION-CATV APPEARS HERE]
EXHIBIT 4
32
[A DIAGRAM OF JOINT USE CLEARANCES
DISTRIBUTION-COMMUNICATION-CATV APPEARS HERE]
EXHIBIT 5
33
[A DIAGRAM OF JOINT USE CLEARANCES
DISTRIBUTION-COMMUNICATION-CATV APPEARS HERE]
EXHIBIT 6
34
[A DIAGRAM OF JOINT USE CLEARANCES
DISTRIBUTION-COMMUNICATION-CATV APPEARS HERE]
EXHIBIT 7
35
[A DIAGRAM OF JOINT USE COMMUNICATION CLEARANCES
ABOVE ROADWAYS, SIDEWALKS, ETC. APPEARS HERE]
EXHIBIT 7
36
[A DIAGRAM OF JOINT USE CLEARANCES
DISTRIBUTION COMMUINICATION-CATV APPEARS HERE]
EXHIBIT 8
