ARLINGTON COUNTY, VIRGINIA AMENDED AND RESTATED CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FOR CABLE TELEVISION EFFECTIVE DATE OF ORIGINAL CERTIFICATE MARCH 3, 1973 EXPIRATION DATE MARCH 2, 1983 EFFECTIVE DATE OF EXTENSION OF CERTIFICATE SEPTEMBER 12, 1981 EXPIRATION DATE OCTOBER 18, 1995 EFFECTIVE DATE OF TRANSFER DECEMBER 1, 1983 EXPIRATION DATE OCTOBER 18, 1995 EFFECTIVE DATE OF AMENDMENTS MARCH 1, 1987 EXPIRATION DATE OF 2ND EXTENSION OCTOBER 18, 2000 OF CERTIFICATE EFFECTIVE DATE OF 2ND TRANSFER JULY 8, 1993 EXPIRATION DATE OCTOBER 18, 2000 EFFECTIVE DATE OF 3RD TRANSFER FEBRUARY 3, 1996 EXPIRATION DATE OCTOBER 18, 2000 EFFECTIVE DATE OF AMENDED AND RESTATED CERTIFICATE AND 4TH TRANSFER JULY 1, 1998 EXPIRATION DATE JUNE 30, 2013 SECTION 1. DEFINITIONS. 8 1.1 Actual Cost 8 1.2 Administrator 8 1.3 Affiliate 8 1.4 Agrees 8 1.5 Basic Service 8 1.6 Board 8 1.7 Cable Programming Service 8 1.8 Cable Service 9 1.9 CAC 9 1.10 Certificate 9 1.11 Certificate Holder 9 1.12 Channel 9 1.13 Channel Equivalent 9 1.14 Completion 9 1.15 Consumer Price Index or CPI 9 1.16 Converter 9 1.17 County 9 1.18 County Code or Code 9 1.19 Educational Access Channel or Educational Channel 10 1.20 Federal Communications Commission or FCC 10 1.21 Governmental Access Channel or Governmental Channel 10 1 22 Gross Revenues 10 1.23 Institutional Network 10 1.24 Leased Access Channels or Commercial Access Channels 10 1.25 Noncommercial 11 1.26 Outage 11 1.27 PEG 11 1.28 Person 11 1.29 Public Access Channels 11 1.30 Public Rights-of-Way 11 1.31 Service Interruption 11 1.32 Shall 11 1.33 State 11 1.34 Subscriber 11 1.35 System 12 1.36 System Rebuild or Rebuild 12 1.37 Transfer 12 SECTION 2. PURPOSE AND AUTHORITY. 12 2.1 AMENDMENT AND RESTATEMENT. 12 2.2 AUTHORITY FOR CERTIFICATE. 12 2.3 PURPOSE. 13 2.4 CERTIFICATE SUBJECT TO OTHER LAWS. 13 2.5 CERTIFICATE SUBJECT TO EXERCISE OF POLICE POWERS. 13 2.6 SUPERVENING AUTHORITY. 13 2.7 EFFECTIVE DATE. 13 2.8 EFFECT OF ACCEPTANCE 14 SECTION 3. RIGHTS AND LIMITATIONS OF THE CERTIFICATE AND SUNDRY PROVISIONS. 14 3.1 RIGHTS OF GRANT. 14 3.2 AREA SERVED. 15 3.3 TERM. 15 3.4 NON-EXCLUSIVITY OF CERTIFICATE. 15 3.5 REVIEW FOR COMPLIANCE WITH CERTIFICATE. 15 3.6 AMENDMENT OF CERTIFICATE. 16 3.7 SECURITY FUND. 17 3.8 PERFORMANCE BOND. 18 3.9 RIGHTS CUMULATIVE. 19 3.10 FAILURE CONSTITUTES MATERIAL VIOLATION. 20 3.11 REMEDIES. 20 3.12 LIQUIDATED DAMAGES. 20 3.13 REVOCATION. 22 3.14 NO TAX EXEMPTION. 24 3.15 NO EXEMPTION FROM RENT. 24 3.16 OTHER PERMITS. 24 3.17 COUNTY INSPECTION OF DOCUMENTS 24 3.18 RECORDS REQUIRED. 25 3.19 LIABILITY FOR DAMAGES. 25 3.20 CHANGE IN OWNERSHIP. 29 3.21 NO WAIVER. 32 3.22 NO RECOURSE. 32 3.23 CONSTRUCTION OF CERTIFICATE. 33 3.24 EFFECT OF COMPETITION. 33 SECTION 4. REGULATIONS RELATED TO USE OF THE PUBLIC RIGHTS-OF-WAY. 36 4.1 COMPLIANCE WITH CODES 36 4.2 CONSTRUCTION STANDARDS. 37 4.3 PUBLICIZING PROPOSED CONSTRUCTION WORK. 38 4.4 NO VESTED INTEREST. 39 4.5 USE OF EXISTING POLES. 39 4.6 UNDERGROUND FACILITIES. 39 4.7 COUNTY USE OF FACILITIES. 40 4.8 WARNING DEVICES 40 4.9 TREES. 40 4.10 REPAIR OF DAMAGED FACILITIES. 40 4.11 RELOCATION AND MOVING OF CABLE SYSTEM. 41 4.12 REMOVAL OF FACILITIES AT EXPIRATION OF CERTIFICATE. 42 SECTION 5. SYSTEM FACILITIES, SERVICES AND TECHNICAL STANDARDS. 43 5.1 SYSTEM REBUILD. 43 5.2 SYSTEM CHARACTERISTICS. 44 5.3 CURRENT SYSTEM. 46 5.4 INTEGRATION OF ADVANCEMENTS IN TECHNOLOGY. 47 5.5 SYSTEM ARCHITECTURAL DESIGN REVIEW PROCESS. 47 5.6 SYSTEM PHYSICAL DESIGN REVIEW PROCESS. 48 5.7 CONSTRUCT ION MANUAL AND CUT-OVER PLAN. 48 5.8 POST-REBUILD DESIGN MODIFICATIONS 48 5.9 SYSTEM AND INSTITUTIONAL NETWORK REBUILD SCHEDULE. 49 5.10 SYSTEM ACCEPTANCE SCHEDULE. 49 5.11 PERIODIC PROGRESS REPORTING. 50 5.12 TECHNICAL STANDARDS. 51 5.13 SYSTEM TESTS AND INSPECTIONS. 51 5.14 SYSTEM MAINTENANCE. 52 5.15 TYPES OF SERVICE. 53 5.16 LEASED ACCESS CHANNELS. 53 5.17 INTERCONNECTION. 53 5.18 EMERGENCY ALERT SYSTEM. 53 5.l9 USES OF SYSTEM. 54 5.20 ADDITIONAL CAPACITY. 54 5.21 FAILURE GROUNDS FOR CANCELLATION 54 SECTION 6. OPERATIONS AND CONSUMER RELATIONS. 54 6.1 DAY-TO-DAY REGULATION. 54 6.2 CUSTOMER SERVICE STANDARDS. 54 6.3 SERVICE INSTALLATION. 55 6.4 INSTALLATION COSTS TO SUBSCRIBER. 55 6.5 CONTINUITY OF SERVICE. 55 6.6 OTHER COMPLAINTS. 56 6.7 COMPLAINT REPORTS AND SEMI-ANNUAL CUSTOMER SERVICE MEETINGS. 57 6.8 CUSTOMER SERVICE MONITORING. 57 6.9 HOME WIRING. 57 6.13 SUBSCRIBER SURVEY. 57 6.14 SUBSCRIBER NOTICES AND PUBLICATIONS. 58 6.15 SYSTEM OUTAGES. 58 SECTION 7. REPORTS TO THE COUNTY. 58 7.1 COMMUNICATIONS WITH REGULATORY AGENCIES. 58 7.2 ANNUAL REPORT. 59 7.3 CONSTRUCTION REPORTS. 60 7.4 QUARTERLY REPORTS. 61 7.5 SPECIAL REPORTS. 61 7.6 ADDITIONAL REPORTS. 62 7.7 VOLUMINOUS MATERIALS. 62 7.8 RETENTION OF RECORDS; RELATION TO PRIVACY RIGHTS. 62 7.9 WAIVER OF REPORTING REQUIREMENTS. 63 7.10 CHANGE IN SERVICES. 63 SECTION 8. FRANCHISE FEES. 63 8.1 PAYOUT TO COUNTY. 63 8.2 INCREASE IN FRANCHISE FEE. 63 8.3 SUPPORTING INFORMATION. 63 8.4 LATE PAYMENTS. 63 8.5 AUDIT. 64 8.6 NO LIMITATION ON TAXING AUTHORITY. 65 8.7 CREDIT FOR PAYMENT OF COUNTY GROSS RECEIPTS TAX. 65 SECTION 9. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND GOVERNMENTAL USE. 66 9.1 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS CHANNELS. 66 9.2 PEG SUPPORT OBLIGATIONS. 67 9.3 RETURN FEED FROM FACILITIES. 69 9.4 MANAGEMENT AND USE OF PEG CHANNELS. 70 9.5 EDITORIAL CONTROL. 70 9.6 INDEMNIFICATION BY PEG PROGRAMMING PRODUCERS AND USERS. 70 9.7 CABLE DROPS AND OUTLETS FOR CERTAIN FACILITIES. 70 9.8 INSTITUTIONAL NETWORK. 71 9.9 COSTS AND PAYMENTS NOT FRANCHISE FEES. 75 SECTION 10. EQUAL EMPLOYMENT OPPORTUNITY. 75 SECTION 11. MISCELLANEOUS PROVISIONS. 76 11.1 BINDING ACCEPTANCE. 76 11.2 SEVERABILITY. 76 11.3 PREEMPTION. 76 11.4 COMPLIANCE WITH FEDERAL AND STATE LAWS. 76 11.5 FORCE MAJEURE. 76 11.6 GOVERNING LAW. 77 11.7 ORDER OF PRECEDENCE. 77 11.8 NOTICES. 77 11.9 TIME OF ESSENCE. 78 11.10 CAPTIONS AND REFERENCES. 78 11.11 RIGHTS OF THIRD PARTIES. 78 11.12 MERGER OF DOCUMENTS. 78 EXHIBIT AINSTITUTIONAL NETWORK 79 EXHIBIT BPROPOSED CABLE TV ARLINGTON UPGRADE PARAMETERS 85 General 85 Synopsis 85 Supporting Discussion 85 Fiber Architecture 85 Fiber Counts 86 Performance 86 Node Performance 86 Future Issues 87 Contractor Decorum 87 EXHIBIT CSUPPLEMENTAL INSTITUTIONAL NETWORK SERVICES 88 EXHIBIT DPEG ACCESS SITES 90 SETTLEMENT AGREEMENT 1 SECTION l. DEFINITIONS 2 1.1 "Certificate" 2 1.2 "Certificate Holder" 2 1.3 "Closing" 2 1.4 "Educational Access Channel" 2 1.6 "PEG" 2 1.7 "Proposed Transaction" 3 SECTI0N 2. TRANSFER OF CERTIFICATE 3 SECTION 3. NO EFFECT ON CERTIFICATE REQUIREMENTS 4 SECTION 4. EDUCATIONAL AND GOVERNMENTAL ACCESS SUPPORT 4 SECTION 5. CREDIT FOR PAYMENT OF COUNTY GROSS RECEIPTS TAX 5 SECTION 6. RELEASE 5 SECTION 8. MISCELLANEOUS PROVISIONS 6 SECTION 1. DEFINITIONS. For the purpose of this County Certificate, the definitions appearing in Arlington County Code Chapter 41.2 are applicable herein unless expanded in this Certificate. In addition to the foregoing, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural; and the masculine gender includes the feminine gender. Unless otherwise expressly stated, words not defined herein or in the County Code shall be given the meaning set forth in Title 47 of the United States Code, as amended, and, if not defined therein, the words shall be given their common and ordinary meaning. Any request or agreement by the County shall be a request or agreement made by action of the County Board, or those designated to act for it in this respect. 1.1 Actual Cost means the incremental cost to the Certificate Holder of materials and labor necessary to perform installation, construction, or maintenance of Institutional Network facilities. 1.2 Administrator shall mean the County Manager of Arlington County or his duly appointed designee(s). The Administrator shall receive any reports or notices due to the Administrator or County and shall be the individual responsible for granting permission or exercising non-legislative authority assigned to the Administrator or County under this Certificate and Chapter 41.2 of the County Code, unless otherwise designated or unless otherwise required by law to be granted or exercised by the Board. 1.3 Affiliate means any Person who owns or controls, is owned or controlled by, or is under common ownership or control with the Certificate Holder. 1.4 Agrees has the same meaning and effect as the word shall. 1.5 Basic Service means any service tier that includes the retransmission of all signals of locally-received television broadcast stations provided to any Subscriber (except a signal secondarily transmitted by a satellite carrier beyond the local service area of such stations, regardless of how such signal is ultimately received by the System), any public, educational, and governmental programming required by the Certificate to be earned on the basic tier, and any additional video programming signals or service added to the basic tier by the Certificate Holder. 1.6 Board means the County Board of Arlington County, Virginia. 1.7 Cable Programming Service means any video programming provided over the System, other than Basic Service and video programming offered on a pay-per-channel or pay-per-program basis. 1.8 Cable Service means (1 ) the one-way transmission to Subscribers of video programming or other programming services; and (2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. Cable service includes the provision of Internet access over the System. 1.9 CAC shall mean the Community Access Corporation approved by the Board to manage, program and operate any Public Access Channels set aside by the Certificate Holder. 1.10 Certificate, sometimes referred to as the County Certificate, shall mean this certificate of public convenience and necessity, and any amendments, exhibits or appendices hereto. 1.11 Certificate Holder means SBC Media Ventures, L.P., a Delaware Partnership, and its lawful and permitted successors, assigns and transferees. 1.12 Channel means a band of frequencies six (6) megahertz wide in the electromagnetic spectrum which is capable of carrying either one standard analog audio-video television signal, a number of audio, digital or other non-video signals, or some combination of such signals. 1.13 Channel Equivalent means the system capacity required to provide the transmission of a video signal, with accompanying audio, that is in digital format and capable of producing sound and picture of NTSC quality or better, based on the compression technology then in use in the System. 1.14 Completion means such time as the System Rebuild described in Section 5.1 and the Institutional Network conduction described in Section 9.8(a) "are accepted by the County pursuant to Sections 5.10 and 9.8(a)(4). 1.15 Consumer Price Index or CPI means the annual average of the Consumer Price Index for all Urban Consumers (CPI-U) for the Washington-Baltimore CMSA, as published by the Bureau of Labor Statistics. 1.16 Converter means an electronic device which may serve as an interface between a System and a Subscriber's television receiver and which may convert signals to a frequency not susceptible to interference within the television receiver of a Subscriber, permit a Subscriber to view all signals delivered at designated dial locations and perform a variety of functions, including signal security, descrambling, and electronic polling. 1.17 County mean Arlington County, Virginia, and any official, agency, or department thereof. 1.18 County Code or Code means the Arlington County Code, as amended from time to time. 1.19 Educational Access Channel or Educational Channel means any Channel on a System set aside by the Certificate Holder for Noncommercial educational use. 1.20 Federal Communications Commission or FCC means that agency as presently constituted by the U.S. Congress, its designee, or any successor agency. 1.21 Governmental Access Channel or Governmental Channel means any Channel on a System set aside by the Certificate Holder for Noncommercial government use. 1 22 Gross Revenues means any and all revenues, including earth, credits, property or other consideration of any kind or nature arising from, attributable to, or in any way derived directly or indirectly by the Certificate Holder, or it's Affiliates, or by any other entity that is a cable operator of the System from the operation of the Certificate Holder's System (including the studios and other facilities associated therewith) to provide Cable Services. Gross Revenues include, by way of illustration and not limitation, monthly fees charged to Subscribers for any basic, optional, premium, per-channel, per-program service, or Other Cable Service; including, without limitation, Internet access fees charged to Subscribers; installation, disconnection, reconnection, and change-in-service fees; Leased Access Channel fees; late fees and administrative fees; fees, payments, or other consideration received from programmers for carriage of programming on the System and accounted for as revenue under GAAP; revenues from rentals or sales of Converters or other equipment; any studio rental, production equipment, and personnel fees; advertising revenues; barter, revenues from program guides; revenues from the sale or carriage of other cable-related services; and revenues from home shopping, bank-at-home Channels and other revenue sharing arrangements. Gross Revenues shall include revenues received by an entity other than the Certificate Holder, an Affiliate, or another entity that operates the System where necessary to prevent evasion or avoidance of the obligation under this Certificate to pay the franchise fee. Gross Revenue shall not include: (i) to the extent consistent with generally accepted accounting principles, actual bad debt write-offs not to exceed two percent (2%) of annual revenues, provided, however, that all or part of any such actual bad debt that is written off but subsequently collected shall be included in Gross Revenues in the period collected, or (ii) any taxes on services furnished by the Certificate Holder which are imposed directly on any Subscriber or user by the Commonwealth of Virginia, the County, or other governmental unit and which are collected by the Certificate Holder on behalf of said governmental unit. A Franchise fee is not such a tax. 1.23 Institutional Network means a two-way optical fiber system linking public, educational and governmental facilities in the County, as further described in Section 9.8 and Exhibit A herein. 1.24 Leased Access Channels or Commercial Access Channels means Channels on the System which are designated or dedicated for use by a Person unaffiliated with the Certificate Holder pursuant to 47 U.S.C. § 532. 1.25 Noncommercial means, in the context of PEG Channels, that particular products and services are not promoted. This term shall not be interpreted to prohibit a PEG Channel operator from soliciting and receiving financial support to produce and transmit video programming on a PEG Channel, or from acknowledging a contribution. 1.26 Outage means a Service Interruption affecting more than 10 Subscribers. 1.27 PEG means public, educational and governmental. 1.28 Person means an individual, partnership, association, joint stock company, joint venture; domestic or foreign corporation' stock or non-stock corporation limited liability company, professional limited liability corporation, other organization of any kind, or any lawful successor thereto or transferee thereof, but such term does not include the County. 1.29 Public Access Channels means any Channels on a System set aside by the Certificate Holder for Noncommercial use by the public, including groups and individuals, and which is available for such use on a non-discriminatory basis. 1.30 Public Rights-of-Way means the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, avenue, boulevard, drive, concourse, bridge, tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, easement, or similar property or waters within the County in which the County now or hereafter holds any property interest, including, but not limited to, any riparian right, which, consistent with the purposes for which it was created, obtained or dedicated, may be used for the purpose of installing, opening and maintaining a System. No reference herein to a "Public Right-of-Way" shall be deemed to be a representation or guarantee by the County that its interest or other right to control the use of such property is sufficient to permit its use for the purpose of installing, operating and maintaining the System. The Certificate Holder shall be deemed to gain only those rights to use as are properly in the County and as the County may have the undisputed right and power to give. 1.31 Service Interruption means the loss of picture or sound on one or more cable Channels or Channel Equivalents, or a reduction in the quality of sound or picture of one or more Channels or Channel Equivalents below the average level of over-the-air broadcasts received within a one-mile radius of a Subscriber's location. 1.32 Shall is always mandatory and is synonymous with will. 1.33 State means the Commonwealth of Virginia, its agencies and departments. 1.34 Subscriber means any Person who legally receives any service delivered over the System. 1.35 System means the facility of the Certificate Holder consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable television service which includes video programming and which is provided to multiple Subscribers within the County, but such term does not include: (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves Subscribers without using any Public Rights-of-Way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act except that such facility shall be considered a System if such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand services; (4) an open video system that complies with 47 U.S.C. § 573; or (5) any facilities of any electric utility used solely for operating its electric utility system. A reference to the System in this Certificate refers to any part of such System, including, without limitation, Converters. The foregoing definition of "System" shall not be deemed to circumscribe or limit the valid authority of the County to regulate or franchise the activities of any other communications system or provider of communications service to the full extent permitted by law. 1.36 System Rebuild or Rebuild means a major improvement or enhancement in the technology or service capabilities made by the Certificate Holder to the System, as more fully described in Section 5.1 and Exhibit B herein. 1.37 Transfer means any transaction in which (i) an ownership or other interest in the Certificate Holder, its System, or any Person that is a cable operator of the System is transferred from one Person or group of Persons to another Person or group of Persons so that control of the Certificate Holder is transferred; or (ii) the rights or obligations held by the Certificate Holder under this Certificate are transferred or assigned to another Person or group of Persons. The term "control," as used in this definition, means working control, in whatever manner exercised. By way of illustration, and not limitation the addition, deletion, or other change of any general partner of the Certificate Holder, any Person who owns or controls the Certificate Holder, or a cable operator of the System is such a change of control. SECTION 2. PURPOSE AND AUTHORITY. 2.1 AMENDMENT AND RESTATEMENT. This Certificate has been amended and restated to bring it into conformity with existing State and federal law and to restate the Certificate Holder's rights and obligations arising out of the extension of the prior Certificate. 2.2 AUTHORITY FOR CERTIFICATE. The parties entering into this Certificate have the authority to do so. The Board is empowered to enact ordinances related to cable television and to issue this Certificate by authority granted by the Commonwealth of Virginia under its Constitution and under the Acts of the General Assembly, as they now exist and may be amended from time to time. 2.3 PURPOSE. The Certificate Holder and the Board enter into this Certificate in order for the Certificate Holder to provide Cable Services to County citizens. The protection and serving of the public interest in all its aspects, including, but not limited to, such considerations as the Certificate Holder's performance in constructing a viable System available to all households, rates for Basic Service, customer service, and public, educational, and governmental programming, are primary goals of both the Certificate Holder and the Board. 2.4 CERTIFICATE SUBJECT TO OTHER LAWS. This Certificate is subject to and shall be governed by all applicable provisions of federal, State, and local law. 2.5 CERTIFICATE SUBJECT TO EXERCISE OF POLICE POWERS. All rights and privileges granted herein are subject to the police powers of the County and its rights under applicable laws and regulations to exercise its governmental powers to their full extent and to regulate the Certificate Holder and the construction, operation and maintenance of the Certificate Holder's System, including, but not limited to, the right to adopt and enforce additional ordinances and regulations as the County shall find necessary in the exercise of its police powers, the right to adopt and enforce applicable zoning, building, permitting and safety ordinances and regulations, the right to adopt and enforce ordinances and regulations relating to equal employment opportunities, and the right to adopt and enforce ordinances and regulations containing right-of-way, telecommunications, utility and cable television consumer protection and service standards and rate regulation provisions. 2.6 SUPERVENING AUTHORITY. Both the parties acknowledge that they voluntarily stand by the features and commitments contained in the Certificate. Should the Commonwealth of Virginia, any agency or department thereof, the FCC or any other agency of the Federal Government require the Certificate Holder to perform or refrain from performing any act, the performance of which is inconsistent with any of the provisions of the Certificate, the Certificate Holder shall so notify the Board and the Board shall, if it determines that a material provision herein is affected, have the right to reconsider the affected terms and conditions of the Certificate, and County Code, provided that the Board shall not require the Certificate Holder to do or refrain from doing any act inconsistent with any mandatory requirement imposed upon the Certificate Holder by such federal or State entity, agency, or department. 2.7 EFFECTIVE DATE. This Certificate shall become effective on July 1, 1998 (the "Effective Date"), after all conditions precedent to its execution are satisfied, it has been approved by the Board in accordance with applicable law, and it has been accepted and signed by the Certificate Holder and the County; provided, however, that if the certificate Holder fails to accept the certificate by July 1, 1998, or within thirty (30) days after approval by the Board, whichever is later, the Certificate shall be deemed void. 2.8 EFFECT OF ACCEPTANCE. By accepting and signing this Certificate, the Certificate Holder: (a) accepts and agrees to comply with each provision of the County Code and this Certificate and any related agreements; (b) acknowledges and accepts the County's legal right to grant the Certificate, and to enact and enforce ordinances and regulations related to the Certificate; (c) agrees that the Certificate was granted pursuant to processes and procedures consistent with and which complied with all applicable law, and that the Certificate holder will not raise any claim to the contrary, or allege in any action, suit, claim to the contrary, or allege in any action, suit, claim, or proceeding by the Certificate Holder against the County that any provision, condition or term of this Certificate or the Code at the time of the acceptance and ratification of the Certificate was unlawful, unreasonable, arbitrary or capricious, or that at the time of the acceptance or ratification of the Certificate any such provision, condition or term was void or that the County had no power or authority to make or enforce any such provision, condition or term of this Certificate; (d) agrees that it will not oppose the intervention by the County in any proceeding affecting the County's rights under this Certificate or the County's exercise of its regulatory authority; and (e) agrees that it shall have no right until July 1, 2010, to request proceedings to consider a formal renewal or to propose a formal renewal of its franchise pursuant to 47 U.S.C. §§ 546(a)-(g), and hereby waives any such rights under the Certificate as in effect prior to this extension. SECTION 3. RIGHTS AND LIMITATIONS OF THE CERTIFICATE AND SUNDRY PROVISIONS. 3.1 RIGHTS OF GRANT. Subject to the terms of this Certificate and the Code, the County hereby grants the Certificate Holder the right to own, construct, operate and maintain a System along the Public Rights-of-Way, for the sole purpose of providing Cable Service. This Certificate shall grant no authority for the Certificate Holder to use the Public Rights-of-Way for any purposes other than the provision of Cable Service, except to the extent other services may be provided over the Institutional Network. The grant of this Certificate does not relieve the Certificate Holder of the obligations to obtain any licenses, permits, or other authority as may be required by the County Code, as it may be amended, for the privilege of operating a business within the County or for performing work on County property or within the Public Rights-of-Way. No privilege or power of eminent domain is bestowed by this Certificate or grant. This Certificate does not confer any rights other than as expressly provided herein or as mandated by federal, State or local law. 3.2 AREA SERVED. (a) The Certificate is granted for the entire County. (b) The Certificate Holder shall build its System so that it is able to provide service to: (i) all areas located within the County limits as they existed on the effective date of this Certificate, and (ii) any areas which may be acquired by the County or otherwise added to the County's jurisdiction during the Certificate term, or any extension thereof. The Certificate Holder shall build the System so that it can extend service to all residents of the County, in accordance with the provisions of this Certificate and the County Code, unless this requirement is waived in writing by the County. 3.3 TERM. The Certificate shall extend for a term of fifteen (15) years, such term commencing on the Effective Date specified in Section 2.7, unless the Certificate is revoked or the term of this Certificate is otherwise shortened. 3.4 NON-EXCLUSIVITY OF CERTIFICATE. Pursuant to Section 15.2-2108 of the Code of Virginia, the Board shall have the authority to award additional Certificates for similar uses or for other uses of the Public Rights-of-Way, or any portions thereof, to any Person, or to make any such use itself, at any time during the term of this Certificate, with or without a Certificate. 3.5 REVIEW FOR COMPLIANCE WITH CERTIFICATE. (a) The Certificate Holder shall submit to triennial reviews. The purpose of these reviews is to evaluate the performance of the Certificate Holder, to discuss the integration of fixture technologies, other plans or operations of the Certificate Holder, or any aspect of the Certificate Holder's System. The Certificate Holder shall fully cooperate with the County in any such reviews. (b) Topics that may be discussed in a review will be determined by the County and will include, but are not limited to, System performance and construction, the Certificate Holder's compliance with the Code and this Certificate, customer service and complaint response, Subscriber privacy, services provided, programming offered, service rate structures, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings, and line extensions. (c) During the review process, the Certificate Holder shall promptly provide such information and documents, in a form determined by the County, as the County may need to reasonably perform its review including, but not limited to, information and documents which may be considered confidential or proprietary. (d) If after conducing a review of the Certificate Holder's performance, the Board determines that the Certificate Holder has not complied with any material provisions of the Certificate or the Code, the Board shall grant the Certificate Holder a reasonable period of time, not to exceed one (1) year, to correct the noncompliance, unless the Certificate Holder was earlier given notice of the noncompliance outside the triennial review process, in which case the procedures otherwise applicable under the Code or this Certificate shall control. If after such time the Certificate Holder has not remedied the noncompliance, the Board may take appropriate actions 3.6 AMENDMENT OF CERTIFICATE. The Board may amend this Certificate to take advantage of advances of technology in accordance with the procedures set forth in this Section. (a) In addition to reviews conducted pursuant to Section 3.5, the County may also conduct a Mid-Term Technical Review of the Certificate Holders Cable System once during the eighth and ninth years of the Certificate. The Certificate Holder shall fully cooperate and assist the County in conducting such review. (b) Purpose: The purpose of the Mid-Term Technical Review shall be to evaluate the technical performance and capabilities of the Certificate Holder's System including the Institutional Network, to determine whether to require a System upgrade to conform with technical improvements then commonly in use in the industry and available on systems in communities similar to the County. Subject to the provisions of this Section 3.6, the Board may amend this Certificate to require the Certificate Holder to upgrade its System to incorporate technical improvements (the "Upgrade Options"). (c) The County's Initial Review: To determine whether to invoke the Upgrade Option, the County shall first commence a review of the System. Such review shall be conducted to enable the County to determine the following: (i) whether the System should be upgraded or rebuilt, (ii) whether the System's technical standards should be revised or improved; and (iii) in general, whether any other changes in Certificate requirements should be made. Each determination under this paragraph shall be based upon the reasonable cable- related needs and interests of the community, considering the costs to the Certificate Holder of meeting those needs and interests. (d) Certificate Holder's Report: To assist in the County's initial review, the Certificate Holder shall, at the County's request, promptly submit a report to the County describing advances in cable technology nationwide, the potential benefits and disadvantages of those advances for consumers, and any plans or timetables the Certificate Holder may have for instituting such changes in technology. (e) Public Hearings: If, after conducting its initial review, the Board determines that a System upgrade may be warranted, it shall hold a public hearing to enable the general public and the Certificate Holder to comment and to present additional information. (f) Upgrade Order: Following the initial review or any heating required under Section 3.6 (e), the Board shall determine whether the exercise of the Upgrade Option is warranted, based upon the reasonable cable-related needs and interests of the community, considering the costs to the Certificate Holder of meeting those needs and interests. The Bond shall issue a written order ("Upgrade Order") stating whether an upgrade is required, describing any upgrade to be implemented, and setting forth the basis for its decision. If an upgrade is required, the Board shall set forth any relevant conditions. (g) Certificate Holders Response: Within sixty (60) days after the Board issues the Upgrade Order, the Certificate Holder shall notify the Administrator in writing whether it will comply with the Order and, if not, whether the Certificate Holder will appeal the Order or reduce the term of the Certificate, specified in Section 3.6(i) herein. If the Certificate Holder does not so notify the Administrator within sixty (60) days, the Certificate Holder will be deemed to have agreed to comply with the Upgrade Order. (h) Amendment of the Certificate: If the Certificate Holder agrees to comply with the Upgrade Order, the parties shall amend this Certificate accordingly. (i) Rejection of the Upgrade Option: If, however, the Certificate Holder is unwilling to comply with the Upgrade Order, the Certificate Holder shall, as its sole remedy, notify the Administrator in writing pursuant to 47 U.S.C. - 546, that it wishes to commence proceedings to renew the Certificate. If, at the time of such notice, more than three (3) years remain in the term of the Certificate, such notice shall be deemed, by mutual agreement, to shorten the term of the Certificate so that the Certificate shall terminate thirty-one (31) months from the date of the notice. 3.7 SECURITY FUND. (a) Pursuant to Section 41.2-14 of the Code, the Certificate Holder shall establish a security fund with the County in the amount of $150,000. The security fund shall be drawn upon in accordance with the procedures set forth in this Section 3.7 and Section 3.12(c) of the Certificate If at the time of withdrawal from the security fund by the County, the amounts available are insufficient to provide the total payment towards which the withdrawal is directed, the balance of such payment shall continue as the obligation of the Certificate Holder to the County until it is paid. Within thirty (30) days of being notified that any amount has been withdrawn from the security fund, the Certificate Holder shall restore the security fund to the total amount specified above. (b) In lieu of posting all cash, the Certificate Holder may file and maintain with the County an irrevocable letter of credit under paragraph (a) to ensure the Certificate Holder's faithful performance of its obligations. The letter of credit shall be from a financial institution licensed to do business in the Commonwealth of Virginia. The letter of credit shall be in a form, and the content acceptable to, the County Attorney and shall be presentable at a financial institution located in the County that is acceptable to the Administrator. (c) The Certificate Holder and the financial institution issuing the letter of credit shall be jointly and severally liable under the terms of the letter of credit. (d) The letter of credit shall provide for ninety (90) days' prior written notice by certified mail, return receipt requested, addressee only, to the Administrator of any intention on the part of the financial institution or the Certificate Holder to cancel, fail to renew, or otherwise materially alter its terms. The letter of credit further shall provide that, during such ninety (90) day period, the County may draw upon the total amount of the letter of credit, unless the Certificate Holder has posted an alternative security fund with the County and the alternative has been accepted by the County. (e) The letter of credit shall be released only upon expiration of the Certificate and receipt by the Administrator of notice thereof, or upon replacement of the letter of credit within the time specified herein. 3.8 PERFORMANCE BOND. (a) Requirement of Bond. The Certificate Holder shall obtain and at all times maintain during the entire term of this Certificate, and any extension(s) thereof a performance bond in favor of the County in the amount of $1,000,000 to ensure the Certificate Holder's satisfactory performance of construction and other work in the Public Rights-of-Way, including, but not limited to, the Rebuild required by this Certificate. (b) Recovery Under Performance Bond. In the event the Certificate Holder fails, after ten (10) days' written notice and opportunity to cure from the County, to complete any System Rebuild, construction, upgrade or other work in the Public Rights-of-Way in a safe, timely, and competent manner, in accordance with the provisions of this Certificate and the Code, there shall be recoverable, jointly and severally from the principal and the surety of the bond, any damages or loss suffered by the County as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Certificate Holder, or the cost of completing or repairing the System Rebuild, construction, upgrade, or other work in the Public Rights-of-Way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The bond shall expressly include all of the foregoing provisions. The County may also recover against the bond any amount recoverable against the security fund required under Section 3.7 of this Certificate, where such amount exceeds that available under the security fund. Within thirty (30) days of being notified that any amount has been withdrawn from the performance bond, the Certificate Holder shall restore the performance bond to the amount specified in paragraph (a). (c) Issuance of Bond. All performance bonds required by this Certificate or the County Code shall be in a form acceptable to the County and shall be issued by a surety with an A-1 or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the County; and shall contain the following endorsement: "This bond may not be canceled, or allowed to lapse, until ninety (90) days after receipt by the County, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew." (d) Forfeiture. The total amount of any bond shall be forfeited in favor of the County in the event that this Certificate is revoked pursuant to Section 3.13(b) of this Certificate, and the performance bond shall so state. 3.9 RIGHTS CUMULATIVE. The rights reserved to the County herein are in addition to all other rights of the County, whether reserved herein or authorized by applicable law, and no action, proceeding, or exercise of a right with respect to the security fund, letter of credit or any performance bond will affect any other right the County may have. Neither the establishment of a cash security fund, the establishment of a performance bond or the filing of a letter of credit with the County, nor the receipt of any damages recovered by the County thereunder, shall be construed to excuse faithful performance by the Certificate Holder or limit the liability of the Certificate Holder for damages under the terms of its Certificate, either to the full amount of the letter of credit, cash security fund, performance bond or otherwise. 3.10 FAILURE CONSTITUTES MATERIAL VIOLATION. Failure to maintain or restore the security fund required by Section 3.7 of this Certificate or the performance bond required by Section 3.8 shall constitute a material violation of this Certificate. 3.11 REMEDIES. In addition to any other remedies available at law or equity, the County may apply any one or a combination of the following remedies in the event the Certificate Holder violates the County Code, this Certificate, or applicable State or federal law: (a) Apply any remedy provided for in this Certificate or the Code, (b) Revoke the Certificate pursuant to any procedures specified by law. (c) Impose penalties available under the Code or other applicable federal, State and local laws. (d) In addition to or instead of any other remedy, legal or equitable relief from any court of competent jurisdiction. 3.12 LIQUIDATED DAMAGES. (a) Because the Certificate Holder's failure to comply with provisions of the County Code and this Certificate will result in injury to the County, and because it will be difficult to quantify the extent of such injury, the County and the Certificate Holder agree that liquidated damages shall be assessable against the Certificate Holder for any violation of provisions of the County Code or this Certificate, and that such liquidated damages shall be chargeable to the Certificate Holder's Security Fund in any amount up to the limits specified below, at the County's discretion. The Certificate Holder hereby agrees that the liquidated damages specified herein are reasonable and do not constitute a penalty or fine. (1) For failure to submit any required plans indicating expected dates of installation of various parts of the System: $400/day for each day the violation continues; (2) For failure to substantially complete the System Rebuild, including the timeline of completion, in accordance with this Certificate: $2,000/day for each day the violation continues; (3) For effecting (or attempting to effect) a Transfer without approval: $2,000/day for each violation for each day the violation continues; (4) For failure to comply with requirements for public, educational and governmental use of the System: $1,000/day for each violation; (5) For failure to supply information, reports, or filings lawfully required under the Certificate or applicable law or by the County: $200/day for each violation for each day the violation continues; (6) For violation of customer service standards: $200 per violation; (7) For failure, unless such failure is beyond the Certificate Holder's control, of the Emergency Alert System to perform in the event of a public emergency or vital information situation: $2,000 per occurrence; (8) For failure to file, obtain, maintain or replenish any required Security Fund or Performance Bond in a timely fashion: $1000 per day; (9) For failure to restore damaged property: $50 per day, in addition to the cost of the restoration and any other penalties or fees as required elsewhere herein or in the County Code; (10) For violation of technical standards established by the FCC: $100 per day; and (11) For failure to meet Institutional Network obligations, as described in Section 9.8 of this Certificate, including but not limited to, security, reliability and maintenance requirements or standards. $2,000 per day for each day the violation continues. (12) For failure to comply with any lawful order of the County: $200/day for each day that the Certificate Holder fails to comply, provided that no liquidated damages shall accrue during any period in which an appeal of the order in question is pending before the County, a court or an administrative body with jurisdiction over the appeal. (b) The Board may reduce or waive any of the above-listed liquidated damages if the Board determines that such waiver is in the best interests of the County. (c) The following procedures shall apply to drawing on the security fund required by Section 3.7: (1) If the Certificate Holder fails to make timely payment to the County of any amount due under this Certificate, the County Code, or other applicable law, or fails to compensate the County within ten (10) days' of written notification that such compensation is due, for any damage, costs or expenses the County suffers or incurs by reason of any act or omission of the Certificate Holder in connection with this Certificate or its enforcement, or fails, after ten (10) days' written notice, to comply with any provision of this Certificate or the County Code that the Administrator determines can be remedied by an expenditure of the security fund, the County may withdraw the amount thereof with interest and any penalties, from the security fund. (2) Within three (3) days of a withdrawal from the security fund, the County shall mail to the Certificate Holder, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal. (3) Upon termination of the Certificate under conditions other than those stipulating forfeiture of the security fund, the balance then remaining in the security fund shall be returned to the Certificate Holder within ninety (90) days of such termination, provided that there is then no outstanding default on the part of the Certificate Holder. (4) The rights reserved to the County with respect to the security fund are in addition to all other rights of the County. An action, procedure or exercise of a right with respect to the security fund does not affect any other right the County may have. 3.13 REVOCATION. (a) Upon completion of the term of this Certificate, if a new, extended, or renewed Certificate is not granted to the Certificate Holder by the County, the Certificate Holder's right to occupy the Public Rights-of-Way shall terminate, subject to applicable federal law. If requested by the County, the Certificate Holder shall, at its expense, remove its facilities from the Public Rights-of-Way and restore the Public Rights-of-Way to their proper condition. Notwithstanding anything in this Certificate to the contrary, should the Certificate Holder fail, refuse, or neglect to remove such facilities, the County may remove the facilities at the expense of the Certificate Holder. Regardless of the existence or amount of any security fund or performance bond, the obligation of the Certificate Holder to remove shall survive the termination of this Certificate. This provision however, does not authorize the County to require the Certificate Holder to remove any facilities that are used to provide another service for which the Certificate Holder holds a valid Certificate issued by the Board. (b) Where, after notice and providing the Certificate Holder with an opportunity to be heard, the Board finds that a System is being maintained or operated in violation of this Certificate or the Code, or in substantial violation of the terms of this Certificate or the Code, the Board may make an appropriate reduction in the remaining term of the Certificate or revoke the Certificate. Before the Certificate is revoked or shortened, the Administrator shall establish and conduct a compliance proceeding. At the conclusion of the compliance proceeding, the Administrator shall transmit a recommended decision to the Board. The Certificate Holder may appeal the Administrator's recommendation to the Board, but any such appeal shall be filed within thirty (30) days of the decision of the Administrator or it shall be deemed waived. If no appeal is filed, the Board may immediately determine whether to revoke or shorten the term of this Certificate in accordance with the requirements of this provision. However, if an appeal is filed by the Certificate Holder, the Board shall not revoke or shorten the term of the Certificate until the appeal has been decided. Notwithstanding the foregoing, the Certificate may not be revoked unless the Certificate Holder (1) was given notice of the default; (2) was given thirty (30) days to cure the default; and (3) failed to cure the default, or to propose a schedule for curing the default that is acceptable to the County. The required notice may be given before the Administrator conducts the proceeding required by this paragraph. No opportunity to cure is required for repeated material violations or Transfers without the prior consent of the County, and fraud may be deemed incurable. (c) Upon revocation of this Certificate, the Certificate Holder shall be obligated to cease using its System for the purposes authorized by the Certificate. The County may either take possession of some or all of the Certificate Holder's facilities in the Public Rights-of-Way or require the Certificate Holder or its surety to remove, at its expense, some or all of the Certificate Holder's facilities from the Public Rights-of-Way and to restore the Public Rights-of-Way to their proper condition. Notwithstanding anything in this Certificate to the contrary, should the Certificate Holder fail, refuse, or neglect to remove such facilities, the County may remove the facilities at the expense of the Certificate Holder. Regardless of the existence or amount of any security fund or performance bond, the obligation of the Certificate Holder to remove shall survive the termination of this Certificate. This provision, however, does not authorize the County to take possession of, or require the Certificate Holder to remove, any facilities that are used to provide another service for which the Certificate Holder holds a valid Certificate issued by the Board. (d) The Certificate may, at the option of the County following a public hearing, be revoked by the Board one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the Certificate Holder, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding unless within that one hundred twenty (120) day period: (1) Such assignment, receivership, or trusteeship has been vacated; or (2) Such assignee, receiver, or trustee has fully complied with the terms and conditions of the Code and this Certificate and has executed an agreement, approved by a court of competent jurisdiction, under which it assumes and agrees to be bound by the terms and conditions of this Certificate and the Code, and such other conditions as may be established or as are required under the Code. (e) Notwithstanding paragraph (d), in the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of the Certificate Holder, the Board may revoke this Certificate, following a public hearing, by serving notice on the Certificate Holder and the successful bidder, in which event the Certificate and all rights and privileges of the Certificate Holder will be revoked and will terminate thirty (30) calendar days after serving such notice, unless: (1) The Board has approved the Transfer of the Certificate to the successful bidder; and (2) The successful bidder has covenanted and agreed with the County to assume and be bound by the terms and conditions of this Certificate and the Code, and such other conditions as may be established or as are required pursuant to the Code or this Certificate. 3.14 NO TAX EXEMPTION. Nothing contained in this Certificate shall be construed to provide the Certificate Holder with an exemption, exclusion, deferral, offset or other relief from any tax, levy, or assessment which is now or which may be hereafter authorized by law. 3.15 NO EXEMPTION FROM RENT. This Certificate authorizes only the use of Public Rights-of-Way for the operation of a System. Therefore, the grant of this Certificate and the payment of franchise fees hereunder shall not exempt the Certificate Holder from the obligation to pay compensation or fees for the use of County property, both real and personal, other than the Public Rights-of-Way, or that the Certificate Holder desires to occupy for purposes other than the provision of Cable Service in the County; provided, however, that such compensation or fees are required by County ordinance, regulation or policy. 3.16 OTHER PERMITS. This Certificate authorizes only the use of Public Rights-Of-Way for the operation of a System, and does not take the place of any other certificate, license, permit or approval which might be required of the Certificate Holder by law. Prior to commencing any construction authorized by this Certificate or undertaking any other actions requiring County approval, the Certificate Holder shall obtain and hereby agrees to fully comply with all applicable permit and license requirements. 3.17 COUNTY INSPECTION OF DOCUMENTS. The County shall have the right, upon reasonable notice, to inspect and copy at any time during normal business hours the documents, books, records, maps, plans, income tax returns, proof of performance tests, and other like materials of the Certificate Holder which the County deems appropriate in order to monitor compliance with the terms of this Certificate. Access to records and other materials shall not be denied by the Certificate Holder on the basis that said records and materials contain proprietary or confidential information. Failure to provide any information required herein shall be grounds for appropriate remedies. All such information received by the County shall remain confidential insofar as permitted by applicable law. 3.18 RECORDS REQUIRED. (a) The Certificate Holder shall at all times maintain the books and records specified in Section 41.2-12 of the Code. (b) The Certificate Holder shall maintain financial records that allow analysis and review of its operations in the County. (c) The County may require the Certificate Holder to create, maintain and produce additional information, books, records, and documents from time to time. 3.19 LIABILITY FOR DAMAGES. (a) Insurance Required. (1) The Certificate Holder shall obtain and, by its acceptance and ratification of the Certificate, specifically agrees that it will maintain, throughout the entire length of the Certificate Period, at its own cost and expense, and keep in force and effect the following insurance covering the Certificate Holder. Coverage must be placed with an insurance company/companies licensed to do business in the Commonwealth of Virginia, as evidenced by a certificate of insurance and copies of the insurance policies. The Certificate Holder's insurance shall be primary. The insurance policies providing the required coverage herein shall respond to valid claims occurring during the policy term on an occurrence basis. In the event that any of the occurrence policies below are replaced by a claims-made policy, such policy shall provide for a retroactive reporting date which coincides with the Effective Date of this Certificate, and shall include an extended reporting period of no less than one (1) year after its termination date. Such replacement shall be brought to the attention of the County, in writing, no later than fifteen (15) days before the replacement date. (A) Commercial General Liability insurance with respect to the construction, operation, and maintenance of the System, and the conduct of the Certificate Holder's business in the County, in a minimum amount of five million dollars ($5,000.000) per occurrence, combined single limit for property damage and bodily injury. The policy must include coverage for Contractual Liability, Premises and Operations, Independent Contractors, Broad Form Property Damage, Personal Injury, and Products and Completed Operations. The policy shall also include coverage for explosion, collapse and underground (XCU) hazard. (B) Automobile Liability Coverage, with a minimum limit of liability of two million dollars ($2,000,000), per occurrence, combined single limit for bodily injury and property damage coverage. The policy must include coverage for owned automobiles, leased or hired automobiles, and non-owned automobiles. (C) Broadcasters' Liability Coverage, covering errors and omissions and negligent acts and other operations of the Certificate Holder, committed during the term of the Certificate, with a limit of liability of at least one million dollars ($l,000,000) per claim and aggregate and a maximum deductible of $25,000. (D) Workers' Compensation Coverage meeting all requirements of Virginia law and Employers' Liability Coverage, with the following minimum limits: Bodily Injury by Accident -$100,000 each accident, Bodily Injury by Disease - $500,000 policy limits and Bodily Injury by Disease - $100,000 each employee. (2) The County may review these amounts and policy terms no more than once a year and may require reasonable adjustments to them consistent with the public interest. (b) Endorsements. All insurance policies and certificates maintained pursuant to this Certificate shall contain the following endorsement: "It is hereby understood and agreed that this insurance coverage may not be amended, suspended or canceled by the insurance company nor the intention not to renew be stated by the insurance company until sixty (60) days after receipt by the County, by registered mail, of a written notice of such intention to amend, cancel or not to renew". (c) Qualifications of Sureties. All insurance policies required to be maintained by the Certificate Holder shall be with sureties qualified to do business in the Commonwealth of Virginia with an A- 1 or better rating for financial condition and financial performance by Best's Key Rating Guide, Property/Casualty Edition, and in a form approved by the County. (d) Policies Available for Review. All insurance policies shall be available for review by the County, and the Certificate Holder shall deliver to and keep on file with the County current copies of the required certificates of insurance. (e) Additional Insureds; Prior Notice of Policy Cancellation. All liability insurance policies, excluding those specified in Sections 3.1 9(a)( 1 )(B) and 3.19(a)( 1 )(D), shall name the County, its elected and appointed officials, officers, boards, commissions, commissioners, agents, and employees as additional insureds and shall further provide that any cancellation, change, or reduction in coverage shall not be effective unless sixty (60) days' prior written notice thereof has been given to the County. The Certificate Holder shall not cancel any required insurance policy without submission of proof that the Certificate Holder has obtained alternative insurance satisfactory to the County which complies with this Certificate. (f) Failure Constitutes Material Violation. Failure to comply with the insurance requirements see forth in this Section shall constitute a material violation of the Certificate. (g) Indemnification. (1) The Certificate Holder shall, at its sole cost and expense, release, indemnify, hold harmless, and defend the County, its elected and appointed officials, officers, boards, commissions, commissioners, agents, and employees against any and all claims, suits, causes of action (whether frivolous or otherwise), proceedings, and judgments for damages or equitable relief arising out of the construction, maintenance, or operation of its Cable System; copyright infringements or a failure by the Certificate Holder, or its Affiliates to secure consents from the owners authorized distributors, or franchisees of programs to be delivered by the System, other than programs delivered on PEG Channels, Channels leased pursuant to 47 U.S.C. § 532, or the Institutional Network (excluding programming controlled by the Certificate Holder); the acts errors, or omissions of the Certificate Holder or its agents, employees or independent contractors; the conduct or presence of the Certificate Holder's business in the County; or in any way arising out of the Certificate Holders, or exercise of the privileges granted by the Certificate, regardless of whether the act or omission complained of is authorized, allowed, or prohibited by the County Code or this Certificate. The Certificate Holder agrees not to sue or to seek any monetary damages from the County, including the persons and entities described in this subsection, in connection with the above-mentioned matters. This indemnification does not extend to claims by the Certificate Holder against the County for injunctive relief to enforce the terms of this Certificate. (2) The Certificate Holder shall also indemnify, defend, and hold harmless the County, and its elected and appointed officials, officers, boards, commissions, commissioners, employees, and agents from and against any and all claims, demands, suits, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, order, decrees, liabilities, and judgments, whether for damages or otherwise, subject to 47 U.S.C. § 558, arising out of or alleged to arise out of any claim against the Certificate Holder for invasion of the right of privacy, defamation of any Person, or the violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other right of any Person. This indemnity does not apply to programming carried on Public, Educational or Governmental Access Channels, or Channels leased pursuant to 47 U.S.C. § 532, unless the Certificate Holder was in any respect engaged in determining the editorial content of the program, or adopts a policy of prescreening programming for the purported purpose of banning or regulating indecent or obscene programming. (3) The County shall give the Certificate Holder prompt notice of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this subsection. The Certificate Holder shall provide the defense of any claims brought against the County under this subsection of the Certificate, subject to the terms of any applicable insurance policy, by selecting and paying for counsel of the Certificate Holder's choice to defend the claim, subject to the consent of the County, which consent shall not be unreasonably withheld. Nothing herein shall be deemed to prevent the County from cooperating with the Certificate Holder and participating in the defense of any litigation by its own counsel at its own cost and expense; provided, however, that after consultation with the County, the Certificate Holder shall have the right to defend or settle any claim or action arising hereunder, and the Certificate Holder shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the County does not consent to the terms of any such settlement or compromise agreed to by the claimant or claimants, then the Certificate Holder shall not settle the claim or action, but its obligation to indemnify the County shall in no event exceed the amount of such otherwise agreed upon settlement. (4) To the extent permitted by applicable rules of civil and appellate procedure, the Certificate Holder shall not implead or join the Board, the County, its elected and appointed officials, officers, boards, commissions, commissioners, employees, and agents in any action against the Certificate Holder arising out of the rights the Certificate Holder enjoys under this Certificate, unless a court of competent jurisdiction has determined that the County is a necessary party. (5) The indemnity provision of this subsection (g) shall survive the term of this Certificate for acts of the Certificate Holder committed while the Certificate was in effect or performed under color of the Certificate after the expiration, revocation, cancellation or termination of the Certificate. (6) Nothing in this Certificate shall be construed to waive the tort or any other immunity or applicable defense of the County, and its elected and appointed officials, officers, boards, commissions, commissioners, agents, and employees. (h) No Limit of Liability. Neither the provisions of this Section nor any damages recovered by the County shall be construed to limit the liability of the Certificate Holder for damages to the County, its elected and appointed officials, officers, boards, commissions, commissioners, agents and employees under the Certificate. 3.20 CHANGE IN OWNERSHIP. (a) Petition. (1) The Certificate Holder shall promptly deliver to the Administrator, in writing, prior notice of any proposed Transfer. If any Transfer should take place without prior notice to the Administrator, the Certificate Holder shall promptly notify the County that such a Transfer has occurred. (2) At least one hundred twenty (120) calendar days prior to the contemplated effective date of a Transfer, the Certificate Holder shall submit to the Board a written petition requesting approval of the Transfer. Such a petition shall provide complete information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee, and on the potential impact of the Transfer on Subscriber rates and service. At a minimum, the following information shall be submitted to the County with the petition: (A) all information and forms required under federal law; and (B) all information required by Section 41.2-15 of the Code. (3) The County may request any other information of the Certificate Holder or the proposed transferee that is relevant to the County's consideration of the petition. (4) At the Certificate Holder's option, the Certificate Holder may notify the County of the proposed transaction in general terms at least one hundred fifty (150) days prior to the contemplated effective date of a Transfer, and request that the County waive some or all of the information requirements specified in this Section 3.20(a). To the extent consistent with applicable law, the County may waive in writing any such requirement that information be submitted as part of the initial petition, without thereby waiving any rights the County may have to request such information after the initial petition is filed. (b) Determination by Board. (1) For the purposes of determining whether it shall consent to a Transfer, the Board or its agents may inquire into all relevant qualifications of the prospective transferee and such other matters as the Board may deem necessary and relevant. The Certificate Holder and any prospective transferees shall assist the County in any such inquiry, and if they fail to do so, the request for Transfer may be denied. In making a determination as to whether to grant, deny, or grant subject to conditions, a petition for a Transfer, the County may consider, without limitation, the legal, financial, an technical qualifications of the transferee to operate the Cable System; any potential effects of the Transfer on Subscriber rates or services; whether the Certificate Holder is in compliance with its Certificate, and the Code and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other Cable System in the County, and whether operation by the transferee may eliminate or reduce competition in the delivery of Cable Service in the County; and whether operation by the transferee or approval of the Transfer would adversely affect Subscribers, the public, or the County's interest under this Certificate, the Code, or other applicable law. (2) In the event that the Board does not approve a Transfer, and such Transfer has already been effected, the Board may revoke this Certificate, in the Board's sole discretion, and avail itself of any other remedies available under this Certificate or other applicable law. (3) The Certificate Holder shall be fully liable under this Certificate for any Transfer that is in violation of the terms of this Certificate and is caused in whole or in part by any other entity or entities, including but not limited to any parents or affiliated entities, as if such Transfer had been caused by the Certificate Holder itself. (4) The County reserves the right to review, inter alia, the purchase price of any Transfer of the System, and to take any necessary steps to ensure that any negotiated sale value which the County deems unreasonable will not adversely affect Subscriber rates, including denial of the Transfer. (5) Any mortgage, pledge or lease shall be subject and subordinate to the rights of the County under this Certificate, the County Code, and other applicable law; provided, however, that if Prime Communications-Potomac, LLC ("Prime") acquires the System pursuant to the Purchase Agreement dated October 16, 1997, Prime shall be authorized to pledge, collaterally assign or grant a security interest in all of its rights under the Certificate to its lenders in order to secure indebtedness obtained from such lenders by Prime in connection with its acquisition of the System. Prime shall also be authorized to pledge, collaterally assign or grant a security interest in all of its rights under the Certificate to finance expansion, maintenance, and operation of the System, provided that such financing is obtained pursuant to the same financing arrangements or from substantially the same lenders as the acquisition of the System. The approval of the County shall be required prior to the foreclosure of any such pledge, collateral assignment or security interest. Any other pledge, collateral assignment, or grant of a security interest may be deemed a Transfer, (6) A Transfer shall not be approved by the Board unless the Certificate Holder and prospective transferee satisfy all requirements of State and federal law, in addition to those requirements specified in the Certificate and the County Code. (c) Transferee's Agreement. No petition for a Transfer shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this Certificate all other agreements between the County and the Certificate Holder, and the County Code, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous Certificate Holder under this Certificate, such agreements, and the Code, for all purposes, including renewal. (d) The transferor shall pay all reasonable direct out of pocket costs incurred by the County in connection with any Transfer petition, regardless of whether the petition is approved or the Transfer is consummated. Such costs shall be documented by the County. The transferor shall tender payment to the County within thirty (30) days of receiving written documentation of the County's expenses. (e) In the event of a Transfer, the Board shall have the right to reconsider the terms and conditions of this Certificate. (f) This Section shall not be construed to limit or restrict any right granted to the County or the Board pursuant to Section 41.2-15 of the County Code. (g) Following the Transfer of the Certificate to Prime Communications-Potomac, LLC, if approved, the Certificate shall not subsequently be transferred prior to the Certificate Holder's Completion of the System Rebuild described in Section 5.1 herein, including such portions of the Institutional Network described in Section 9.8 herein required to be built concurrently with the System Rebuild, unless the Board finds, in its sole discretion, that the Transfer is necessary and in the best interests of the County and its residents. 3.21 NO WAIVER. (a) The failure of the County on one or more occasions to exercise a right or to require compliance or performance under this Certificate, the Code or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by the County or the Board, nor to excuse the Certificate Holder from complying or performing, unless such right or such compliance or performance has been specifically waived in writing. (b) The failure of the Certificate Holder on one or more occasions to exercise a right under this Certificate or applicable law, or to require performance under this Certificate, shall not be deemed or constitute a waiver of such right or of such performance of this Certificate, nor shall it excuse the County from performance, unless such right or performance has been specifically waived in writing. (c) Waiver of a breach of this Certificate, or any provision hereof, shall not be a waiver of any other breach, whether similar to or different from that waived. Neither the granting of the Certificate, nor any provision herein, nor any action by the County or the Board hereunder shall constitute a waiver of or a bar to the exercise of any governmental right or power of the County or the Board, including, without limitation, the right of eminent domain. 3.22 NO RECOURSE. The Certificate Holder shall have no recourse against the County, its elected or appointed officials, officers, boards, commissions, commissioners, employees and agents for any loss, cost, expense, claim, liability or damage arising out of any action undertaken or not undertaken by the Certificate Holder pursuant to the Certificate or the County Code, whether or not such action or non-action was required by the Certificate or the Code, arising out of the enforcement or non-enforcement by the County or the Board of any provision or requirement of this Certificate or the Code, or otherwise arising out of, the Certificate or the Code. This Section shall not preclude injunctive relief. 3.23 CONSTRUCTION OF CERTIFICATE. The provisions of this Certificate shall be liberally construed to effectuate the objectives consistent with County Code and the public interest. In the event of a clear conflict between the County Code and this Certificate, the Code shall prevail. References in this Certificate to applicable law or applicable requirements refer to applicable law or requirements as the same may be amended from time to time. 3.24 EFFECT OF COMPETITION. (a) The Board desires competition in cable services in Arlington County and believes competition will benefit the residents of the County. Further, the Board believes that competition can develop without substantial injury to the Certificate Holder or the Certificate Holder's ability to perform on its promises in this Certificate. The Certificate Holder has entered into this Certificate with a full understanding that the Board intends to encourage the development of competition. (b) If the Board desires, it may require the Certificate Holder to increase its Comparable Obligations to the level of the Support Obligations of a Video Competitor if the total Support Obligations of the Video Competitor (excluding franchise fees or comparable fees or taxes) pursuant to any certificate or comparable authorization are greater than the total Comparable Obligations of the Certificate Holder (excluding franchise fees) under this Certificate. (c) If Certificate Holder requests, the Board shall grant a decrease in the Certificate Holder's Future Obligations under this Certificate to the level of the Future Obligations of a Video Competitor if at the time of the request: (1) The Video Competitor serves residential subscribers totaling at least 10% or more of the number of residential subscribers then served by the Certificate Holder; and (2) The Certificate Holder's Comparable Obligations are 10% greater, or more, than the Support Obligations of the Video Competitor. (d) The Administrator shall determine when the conditions of this subsection 3.24 have been satisfied and shall determine by written order the change, if any, required in the Certificate Holder's Future Obligations. Any such change shall be effective as of the date the request for change was made. If the Certificate Holder believes the decision of the Administrator does not comply with the terms of this subsection, the Certificate Holder may request mediation by a third party mutually acceptable to the County and the Certificate Holder. If mediation is not successful within ninety (90) days of the date of the initial decision by the Administrator, the Certificate Holder may pursue its other remedies at law, provided it has made and continues to make, the payments required by the Administrator's decision throughout the pendency of any legal action, subject to refund back to the date the request for change was made. (e) The Administrator shall use the following methodology in determining whether a change in Comparable Obligations is required under paragraph (b) or (c) of this subsection 3.24: (1) Reduction in Comparable Obligations. The determination of a requested decrease in the Certificate Holder's Comparable Obligations will compare only Future Obligations as measured from the date of the request, provided that any elements of the Certificate Holder's Comparable Obligations that are not within the County's authority to impose on the Video Competitor will not be considered in making the comparison for purposes of reducing the Certificate Holder's Future Obligations. (A) Where Future Obligations are based on flat, pre-determined monetary amounts, (whether or not such amounts may be recurring and/or inflation adjusted), such amounts shall be reduced to their net present value as of the date of the request for a change. In-kind obligations shall be valued at the actual cost to the entity providing the in-kind obligation. These amounts shall be expressed as an average monthly per subscriber amount based on the number of months left under the respective agreement and using the number of residential subscribers which the entity serves as of the date of the reduction request. (B) Where Future Obligations are imposed based on a specified amount per subscriber, such amounts will be expressed as a monthly dollar amount per residential subscriber based on the number of residential subscribers which the entity serves as of the date of the reduction request. (C) Where Future Obligations are imposed based on a specified percentage of gross revenues, the quarterly gross revenues and number of subscribers for the quarterly period immediately preceding the reduction request will be used to calculate an average monthly revenue per subscriber based on the average number of residential subscribers served during that quarter. This average monthly revenue per subscriber will then be multiplied by the specified percentage of gross revenues to arrive at a monthly amount per residential subscriber. (D) The total monthly dollar amounts per residential subscriber as of the date of the reduction request will be the basis of comparing the respective obligations of the Certificate Holder and a Video Competitor to determine if an adjustment is warranted. (E) If Future Obligations are imposed on any basis other than as set forth above, the Administrator will use his best efforts to convey those obligations to a monthly dollar amount per residential subscriber based on the number of residential subscribers which the entity serves as of the date of the reduction request consistent with the principles set forth above. (2) Increase in Comparable Obligations. An increase in the Certificate Holder's Comparable Obligations will be required if the net present value of the Support Obligations paid or provided by a Video Competitor to the County for PEG and Institutional Network facilities, equipment and services (but not for franchise fees or comparable taxes or fees) as of the date of the Board's determination under paragraph (b) of this subsection 3.24, exceeds the net present value of the Certificate Holder's Comparable Obligations paid or provided for PEG and Institutional Network facilities, equipment and services (but not for franchise fees or comparable taxes or fees, and regardless of whether any element of such obligations is within the County's authority to impose on the Video Competitor) under this Certificate as of the same date, as adjusted for any differences in the relative length of the respective obligations. In this event, the Administrator may require the Certificate Holder to increase its Future Obligations on a going forward basis to eliminate the difference. (f) At such time as the Video Competitor's market share falls below 10% of the residential subscribers served by the Certificate Holder, and the Certificate Holder has previously received a reduction in its Comparable Obligations under this subsection 3.24, the Certificate Holder's remaining Future Obligations will return to the original requirements. If, following such a return to the Certificate Holder's original requirements, a Video Competitor later obtains a market share totaling 10% or more of the number of residential subscribers served by the Certificate Holder, the Certificate Holder may again request a reduction in the Future Obligations, as set forth above, provided, however, that the Certificate Holder shall not again request such a reduction within five years after returning to the Certificate Holder's original requirements. The Certificate Holder promises to meet the fixture Comparable Obligations, as amended, and to pass through to subscribers the full benefits of any reduced Comparable Obligations. (g) For purposes of this subsection 3.24, (1) "Comparable Obligations" means the Certificate Holder's obligations over the relevant period of this Certificate to pay franchise fees in Section 8; PEG capital and operational support payments in subsection 9.2; Institutional Network payments in subsection 9.8; and any Actual Costs caused to the Certificate Holder by the construction of the Institutional Network (2) "Future Obligations" means either Support Obligations or Comparable Obligations that will occur within the remaining term of a Certificate or other Board-granted authorization. The term includes past and currant expenditures that are both amortized and unrecovered under generally accepted accounting principles at the time of the Certificate Holder's request. The term does not include obligations past due. (3) "Support Obligations" means: (A) for a cable operator Video Competitor, any legally enforceable obligations imposed by the County for cable franchise fee, or a comparable tax or fee, or for PEG services or facilities or equipment, including an institutional network, within the County; (B) for an OVS operator Video Competitor, any legally enforceable obligations imposed by the County for cable franchise fees or a comparable tax or fee, or for PEG services or facilities or equipment, not including an institutional network; and (C) for any other entity Cable Service, any legally enforceable obligations imposed by the County for franchise fees or comparable tax or fee, or for PEG services or facilities or equipment. (4) "Video Competitor" means a Person who is a cable operator, an OVS operator, as defined in 47 U.S.C. § 573, or a provider of Cable Service in the County pursuant to a prior agreement with the County. A Video Competitor may not be an Affiliate of the Certificate Holder. SECTION 4. REGULATIONS RELATED TO USE OF THE PUBLIC RIGHTS-OF-WAY. 4.1 COMPLIANCE WITH CODES. The Certificate Holder agrees to comply with the requirements for construction described in all applicable laws, including the County Code, such as applying for necessary permits as may be required by appropriate County regulations policies, requirements or applicable laws. The County has the right to supervise all construction or installation work performed in the Public Rights-of-Way as it shall find necessary to ensure compliance with the terms of this Certificate and other pertinent provisions of law and regulations thereto appertaining. All safety practices required by law shall be used during construction, maintenance and repair of the System. The Certificate Holder agrees, at all times, to employ ordinary care and to install and maintain in use commonly accepted methods and terraces for preventing failures and accidents which are likely to cause damage, injuries, inconvenience or nuisances to the public or to property. All structures and all lines, equipment and connections in the Public Rights-Of-Way shall at all times be kept and maintained in a safe, suitable, substantial condition, and in good order and repair. 4.2 CONSTRUCTION STANDARDS. (a) The construction, operation, maintenance, and repair of the System shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970, as amended; the most current edition of the National Electrical Code; the most current edition of the National Electrical Safety Code; Obstruction Marking and Lighting, AC 70/7460 i.e., Federal Aviation Administration; Construction, Marking and Lighting of Antenna Structures, Federal Communications Commission Rules Part 17; the Certificate Holders Construction Procedures Manual; and other applicable federal, State, County or local laws and regulations that may apply to the operation, construction, maintenance, or repair of a Cable System, including, without limitation, local zoning and construction codes and laws and accepted industry practices, all as hereafter may be amended or adopted. In the event of a conflict among codes, the most stringent code shall apply (except insofar as those codes, if followed, would result in a system that could not meet requirements of federal, State or local law, or is expressly preempted by other such provisions). The County may adopt additional standards as required to ensure that work continues to be performed in an orderly and workmanlike manner. (b) All installation of electronic equipment shall be of a permanent nature, using durable components, except where maintenance for emergency repairs require the installation of temporary equipment. Temporary equipment shall be replaced as soon as possible. If replacement cannot occur within sixty (60) days, the Certificate Holder shall provide notification to the County. (c) Without limiting the foregoing, antennae and their supporting structures (towers) shall be designed in accordance with the Uniform Statewide Building Code, as amended, and shall be painted, lighted, erected, and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable State or local laws, codes, and regulations, all as hereafter may be amended or adopted. (d) Without limiting the foregoing, all of the Certificate Holder's plant and equipment, including, but not limited to, the antennae site, headend and distribution system towers, house connections, structures, poles, wires, cable, coaxial cable, fiber optic cable, fixtures, and apparatuses shall be installed, located, erected, constructed, reconstructed, replaced, removed, reputed, maintained, and operated in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel so as not to endanger or interfere with improvements the County shall deem appropriate to make or to interfere in any manner with the Public Rights-of-Way or legal rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic. (e) In addition to other requirements of law and County policies, procedures, rules, regulations and guidelines, prior to erection or emplacement of any towers, poles, or conduits in connection with the construction, operation, maintenance, upgrade, or rebuild of a System, the Certificate Holder shall first submit to the County for approval a concise description of the System facilities proposed to be erected or installed, including engineering drawings, if required by the County, together with a map and plans indicating the proposed location of all such facilities. No such erection of construction shall be commenced by any Person until approval therefor has been received from the County. (f) Any contractor or subcontractor used for work or construction, installation, operation, maintenance, or repair of System equipment shall be properly licensed under laws of the Commonwealth of Virginia and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as the Certificate Holder would have if the work were performed by the Certificate Holder. The Certificate Holder shall ensure that contractors, subcontractors and all employees who will perform work for it are trained and experienced. The Certificate Holder shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with the Certificate and applicable law, shall be fully responsible to the County and third parties for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed. 4.3 PUBLICIZING PROPOSED CONSTRUCTION WORK. The Certificate Holder, at its sole expense, shall notify the public prior to commencing any proposed construction that will significantly disturb or disrupt public property, inconvenience the County or the public, or have the potential to present a danger or affect the safety of the public generally. The Certificate Holder shall publicize proposed construction work at least one (1) week prior to commencement of that work by causing written notice of such construction work to be delivered to the County and by notifying those Persons most likely to be affected by the work in at least two (2) of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, by publication in local newspapers, or in any other manner, approved by the Administrator, reasonably calculated to provide adequate notice. In addition, before entering onto any Person's property, the Certificate Holder shall provide prior notification and obtain the property owner's or, in the case of residential property, the resident's permission. If the Certificate Holder must enter the premises, it shall schedule an appointment at the convenience of the owner or resident. 4.4 NO VESTED INTEREST. No placement of any pole or wireholding structure of the Certificate Holder is to be considered a vested interest in the Public Rights-of-Way or in County property, and such poles or structures are to be removed or modified by the Certificate Holder at its own expense whenever the Administrator determines that the public convenience would be enhanced thereby. All transmission and distribution structures, lines, wires, cables, equipment, and poles or other fixtures erected by the Certificate Holder within the County are to be so located and installed as to cause minimum interference with the rights and convenience of property owners 4.5 USE OF EXISTING POLES. Where existing poles, underground conduits, ducts or other wireholding structures are available for use by the Certificate Holder, but it does not make arrangements for such use, the Administrator may require, through the established permit, or any other applicable procedure, the Certificate Holder to use such poles and wireholding structures if the Administrator determines that the public convenience would be enhanced thereby and the terms available to the Certificate Holder for the use of such poles and structures are just and reasonable. Copies of agreements for use of conduits or other facilities between the Certificate Holder and any telecommunications provider, utility or public service company shall be filed with the County upon request. 4.6 UNDERGROUND FACILITIES. The Certificate Holder agrees to place its cables, wires or other like facilities underground, as may be required by the provisions of the County Code and County policies, procedures, nobles and regulations, as amended from time to time. The Certificate Holder shall not place facilities, equipment or fixtures where they will interfere with any gas, electric, telephone, water, sewer or other utility facilities or with any installations of the County, or obstruct or hinder in any manner the various utilities serving the residents of the County. To the extent consistent with the County Code, and County policies, procedures, rules and regulations, System cable and facilities may be constructed overhead where poles now exist and electric or telephone lines or both are now overhead. However, in no case may the Certificate Holder install poles in areas of the County where underground facilities are generally used by the utilities already operating. If the County, at a fixture date, requires all electric and telephone lines to be placed underground in all or part of the County, the Certificate Holder shall, within a reasonable time, as determined by the County, similarly move its cables and lines, at its own expense, and shall not seek damages from the County for such compliance nor shall it assess its customers any direct charges for the costs of the required construction. The expenses incurred by the Certificate Holder pursuant to this Section shall be considered external costs under the FCC's rate regulation rules 4.7 COUNTY USE OF FACILITIES. The County shall have the right to use the Certificate Holder's poles, conduits, ducts and manholes free of charge, provided that such use will not unreasonably interfere with the present or future System operations of the Certificate Holder. Other facilities of the Certificate Holder shall be provided to the County at fair and reasonable rates. 4.8 WARNING DEVICES. When it is mutually determined by the Certificate Holder and the Administrator to be necessary for purposes of public safety, the Certificate Holder agrees to install and maintain such devices as will apprize or warn Persons using the Public Rights-of-Way of the existence of a System. Permission to place such warning devices shall be sought from the Administrator or such other department of the County and may be designated for this purpose. Warning signs and devices must meet the requirements of the County's Sign Ordinance, the Manual on Uniform Traffic Control Devices, and Department of Public Works permits. 4.9 TREES. To the extent consistent with the County Code, County permits, and County policies, procedures, rules, and regulations, the Certificate Holder shall have the right to remove, trim, cut, and keep clear of its System trees or other vegetation in and along the Public Rights-of-Way. Any tree trimming within the Public Rights-of-Way shall comply with Department of Public Works permit requirements. However, in the exercise of this right, the Certificate Holder agrees not to cut or otherwise injure said trees to any greater extent than is reasonably necessary. The Certificate Holder agrees not to trim, cut, or remove any tree from any Public Right-of-Way or public place unless, where required, prior written permission is first obtained, and where permission is not required, prior written notice of its intention to do so is given to the appropriate County department or departments. The Certificate Holder agrees that it will not proceed without first having received written authorization from such properly designated department, except in cases of emergency where such prior notice is waived by the department. In no event is there any grant of authority to remove trees on private property in the County. All trimming shall be at the sole cost of the Certificate Holder. 4.10 REPAIR OF DAMAGED FACILITIES. (a) PUBLIC FACILITIES. The Certificate Holder, in the exercise of any right granted to it by this Certificate, agrees to promptly reconstruct, replace, restore or repair any County-owned facilities within the Public Right-Of-Way, any sewer, gas or water main or pipe, drainage facility, or electric, fire alarm, police communication, or traffic control facility of the County, which may be damaged, disturbed, or destroyed by the exercise of any such right, in a manner, with such materials, and to the satisfaction of such department or agency of the County as may have jurisdiction over such Public Right-of-Way or facilities. All repairs shall comply with then current Department of Public Works and Virginia Department of Transportation standards and specifications. With respect to fire and police department facilities and equipment, and water and sewer facilities, and other essential utilities and services, as determined by the County, such reconstruction, replacement, restoration or repays shall be undertaken immediately after the damage, disturbance or destruction is incurred, and shall be completed promptly. In all other cases, reconstruction, replacement, restoration or repairs shall be undertaken within no more than seven (7) days after the damage, disturbance or destruction is incurred, and shall be completed as soon as reasonably possible thereafter. The Certificate Holder shall guarantee its work for at least one (1) year against defective materials or workmanship. This guarantee shall not excuse the Certificate Holder from complying with all other applicable County requirements concerning reconstruction, replacement, restoration and repairs. As an alternative, the Certificate Holder may, at the discretion of the County, satisfy this obligation by promptly notifying the County of any damage to County-owned facilities or property and reimbursing the costs incurred by the County to repair, reconstruct, replace or restore such facilities or property. The Administrator shall determine the amount of such reimbursement based on documented proof from appropriate County agencies or departments. b) PRIVATE FACILITIES. The Certificate Holder shall, at its sole cost and expense, repair and restore to their prior condition any private facilities or property which may be damaged or disrupted in the exercise of its rights under this Certificate. Such restoration or repairs shall be undertaken within no more than seven (7) days after the damage or disruption is incurred, and shall be completed as soon as reasonably possible thereafter. The Certificate Holder shall guarantee its work for at least one (1) year against defective materials or workmanship. As an alternative, the Certificate Holder may, at the discretion of the owner of the facilities or property, satisfy this obligation by promptly notifying such owner of any damage and reimbursing the costs incurred by the owner to repair, reconstruct, replace or restore such facilities or property. 4.11 RELOCATION AND MOVING OF CABLE SYSTEM. (a) The Certificate Holder shall, at its sole expense, by a reasonable time specified by the County, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the County by reason of traffic conditions; public safety; Public Right-of-Way construction; Street maintenance or repair (including resurfacing or widening); change of Public Right-of-Way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications or traffic control system, public work or improvement of any government-owned utility; Public Right-of-Way vacation; or for any other purpose where the convenience of the County would be served thereby. The Certificate Holder shall bear the entire cost of protecting, supporting, disconnecting, relocating or removing its property pursuant to this Section. If the Certificate Holder fails, neglect or refuses to comply with the County's request, the County may protect, support, temporarily disconnect, relocate or remove the appropriate portions of the System at the Certificate Holder's expense. The County shall not be liable to the Certificate Holder for damages resulting from such protection, support, disconnection, relocation or removal. (b) The Certificate Holder also agrees, upon the request of any Person holding a building moving permit issued by the County, to temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires will be paid by the Person requesting the same, and the Certificate Holder will have the authority to require such payment in advance, except in the case where the requesting Person is the County, in which case no payment shall be required. The Certificate Holder will be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes. (c) If any removal, relaying, or relocation is required to accommodate the construction, operation, or repair of the facilities of another Person that is authorized to use the Public Rights-of-Way, the Certificate Holder shall, after thirty (30) days' advance written notice, take action to effect the necessary changes requested by the responsible entity. The County may resolve disputes as to responsibility for costs associated with the removal, relaying, or relocation of facilities as among entities authorized to install facilities in the Public Rights-of-Way if the parties are unable to do so themselves, and if the matter is not governed by a valid contract between the parties or any State or federal law or regulation (d) In the event of an emergency, or where the System creates or is contributing to an imminent danger to health, safety, or property, as solely determined by the County, the County may remove, relay, or relocate any or all parts of the System without prior notice, at the sole expense of the Certificate Holder. 4.12 REMOVAL OF FACILITIES AT EXPIRATION OF CERTIFICATE. At the expiration of the term for which this Certificate is granted, or upon the expiration of any renewal or extension period which may be granted, or upon the termination or revocation of this Certificate, the County will have the right to require the Certificate Holder, at its sole expense: (i) to remove all portions of the System from all Public Rights-of-Way within the County; and (ii) to restore affected sites to their original condition. Should the Certificate Holder fail, refuse, or neglect to comply with the County's directive, all portions of the System or any part thereof may be removed, altered or relocated by the County at the cost of the Certificate Holder. The County will not be liable to the Certificate Holder for damages resulting from such removal, alteration or relocation. SECTION 5. SYSTEM FACILITIES, SERVICES AND TECHNICAL STANDARDS. 5.1 SYSTEM REBUILD. Within two (2) years after the Effective Date of this Certificate, the Certificate Holder shall complete a System Rebuild providing at least the following capabilities: (a) The rebuilt System shall have a minimum bandwidth capacity of 750 MHz on all active components, at least 750 MHz for all existing passive components, and at least I GHz for all new or replaced passive components; an analog bandwidth of 550 MHz; and shall initially have a minimum analog Channel capacity of at least 82 Channels, downstream to all Subscribers, and a minimum digital capacity of 200 MHz. If the Certificate Holder subsequently decides to change the amount of capacity allocated to analog programming, the Certificate Holder shall notify the County in writing at least sixty (60) days prior to the effective date of the proposed change. (b) The System backbone connections shall utilize fiber optic links between the headend and all nodes. Fiber optic nodes, segmented into distinct service areas shall be constructed to serve coaxial copper cable passing an average of no more than 1,500 dwelling units per node. Individual nodes may serve cable passing a de minimis number of dwelling units, in excess of 1,500, provided there is no effect on the performance characteristics of the node. (c) The Certificate Holder shall design the System so that channel capacity may be readily expanded and digital programming delivered to Subscribers through digital video compression or similar appropriate technology without compromising signal or service quality or requiring significant alterations, upgrading or reconstruction (d) The rebuilt System shall provide two-way capability. Except as provided elsewhere in this Certificate, the Certificate Holder, in its sole discretion, may activate such capability based on economic and technical considerations. (e) The Certificate Holder may offer highspeed cable modems as a Cable Service. (f) The Certificate Holder shall offer service to all County residences and businesses. Notwithstanding the foregoing, the requirements contained in the following sections of this Certificate shall not apply to Service provided by the Certificate Holder to business customers: Section 5.2(i) (Consumer Equipment); Section 5.2(j) (Parental Control), Section 5.2(k) (Program Security); Section 6.3 (Service Installation); and Section 6.4(a)(Line Extension). Except as otherwise required under this Certificate, the terms and conditions of services provided to businesses are subject to negotiation between the Certificate Holder and the business requesting service. (g) As part of the Rebuild, the Certificate Holder shall, at its sole expense, remove from the Public Rights-of-Way all existing equipment that will not be used by the rebuilt System or will be deactivated as the Rebuild is performed. To the extent feasible, the removal of deactivated or unused equipment shall be performed at the time rebuilt portions of the System are activated and accepted. In any event, all such equipment shall be removed by the time the Rebuild is completed. If any unused or deactivated equipment remains in Public Rights-of-Way after the Completion of the Rebuild, the County may remove such plant and equipment at the Certificate Holder's expense. (h) Other Specifications. The rebuilt System shall further have the minimum technical characteristics and specifications described in Proposed Cable TV Arlington Upgrade Parameters, attached as Exhibit B hereto. 5.2 SYSTEM CHARACTERISTICS. The Certificate Holder's Cable System shall, at all times during the term of the Certificate and any extension or renewal thereof, meet or exceed the following requirements: (a) Compliance With FCC Rules. All maintenance performed on the System by the Certificate Holder shall be in accordance with the FCC's rules and regulations governing the technical performance and operating standards for such System. (b) Continuous 24-Hour Operation. The System shall be capable of continuous twenty-four (24) hour daily operation without severe material degradation of signal except during extremely inclement weather or immediately following extraordinary storms that adversely affect utility services or damage major system components. (c) Temperature Specifications. The System shall be capable of operating over an outdoor temperature range of -20 degrees F to +120 degrees F and over variations in supply voltages from 105 to 130 volts AC without optic failure or irreversible performance changes. The System shall meet all applicable specifications over an outdoor temperature range of 0 degrees F to 100 degrees F and over variations in supply voltages from 105 to 130 volts AC. (d) No Interference. The System shall be operated in such a manner as to minimize interference with the reception of off-the-air signals by a Subscriber. The Certificate Holder shall insure that signals carried by the System, or originating outside the System wires, cables, fibers, electronics and facilities, do not ingress or egress into or out of the System in excess of FCC or other standards. In particular, the Certificate Holder shall not operate the System in such a manner as to pose unwarranted interference with emergency radio services, aeronautical navigational frequencies or any airborne navigational reception in normal flight patterns, or any other type of wireless communications, pursuant to FCC regulations. (e) No Deterioration to Access Signals. The System shall be so constructed and operated that there is no significant deterioration in the quality of Public, Educational or Governmental Access Channel signals or Leased Access Channel signals resulting from the transportation of the video signal, either upstream or downstream, as compared with any other Channel on the System. Deterioration refers to any signal problem, including, but not limited to, ghost images and other interference and distortions. (f) Industry-accepted Equipment. The System shall use equipment generally used in high-quality, reliable, modern systems of similar design. (g) Stand-by Power. The Certificate Holder shall provide standby power generating capacity at the headend. The Certificate Holder shall maintain motorized standby power generators capable of at least twenty four (24) hours duration at the headend. The headend generator shall be tested once per week. The standby power system shall be reviewed and approved by the County as part of System Design Review. The power suppliers serving the nodes and distribution shall be capable of providing power to the system for not less than two (2) hours according to manufacturer specification in the event of an electrical outage. The Certificate Holder shall maintain sufficient portable motorized generators to be deployed in the event that the duration of a power disruption is expected to exceed two (2) hours. (h) Clear Channels. The Certificate Holder shall comply with all FCC regulations regarding scrambling or other encryption of signals. (i) Consumer Equipment For Lease or Sale. Subject to applicable law or regulation, as part of the System, the Certificate Holder shall, consistent with 47 C.F.R § 76.984 and 47 U.S.C. § 543(d), offer every Subscriber, at uniform prices and regardless of the level of service taken, the opportunity to lease or buy Converters that utilize wireless remote controls and that allow Subscribers to view a program on one Channel while taping a program on another Channel. To the extent permitted by federal law, Subscribers shall have the right to attach such devices to the Certificate Holder's System to allow them to transmit signals or service to video cassette recorders, receivers and other terminal equipment, and to use their own remote control devices and Converters, and other similar equipment, as long as such devices do not interfere with the operation of the Certificate Holder's System or the reception of any cable Subscriber, nor serve to circumvent the Certificate Holder's security procedures, nor for any purpose to obtain services illegally. The Certificate Holder shall provide information to Subscribers which will allow them to adjust such devices so that they may be used with the Certificate Holder's System. (j) Parental Control. The Certificate Holder shall provide equipment to enable Subscribers to block out audio and video on any undesired Channels on the System. (k) Program Security. The System shall include equipment so that any pay-per-view programming can only be activated by the positive action of a Subscriber. (l) Service for Persons with Disabilities. All closed-caption programming transmitted by the System shall include the closed-caption signal. For hearing impaired Subscribers, the Certificate Holder shall provide information concerning the cost and availability of equipment to facilitate the reception of all Basic Services for the hearing impaired. In addition, the Certificate Holder shall have TDD/TTY (or equivalent) equipment at the company office, and a publicly listed telephone number for such equipment, that will allow hearing impaired customers to contact the company. Upon request, the Certificate Holder shall, consistent with 47 C.F.R. § 76.984 and 47 U.S.C. § 543(d), provide, for purchase or lease at the lowest uniform price, a remote control device to those Subscribers who are mobility limited, or where a member of the Subscribers household is mobility limited. The Certificate Holder shall also, in conjunction with the Disability Advisory Commission, conduct a survey of disabled Subscribers, at the Certificate Holder's sole expense, to ascertain such Subscribers' needs, and comply with applicable closed captioning and audio description rules and standards. For purposes of this Section, rates for equipment shall be treated as equipment used to receive Basic Service, regardless of whether such equipment is additionally used to receive other tiers of regulated programming and/or unregulated service. 5.3 CURRENT SYSTEM. The Certificate Holder is authorized and required to operate its existing System, and to provide service substantially equivalent to its existing service, within the County as of the Effective Date of this Certificate, until such time as the System is rebuilt, as provided herein. 5.4 INTEGRATION OF ADVANCEMENTS IN TECHNOLOGY. (a) In addition to any upgrades required herein, it is the responsibility of the Certificate Holder periodically to upgrade the System to ensure that it is as advanced as the current state of technology will allow, taking into account the needs and interests of the community, economic and financial considerations and the impact on Subscriber rates. The Certificate Holder shall install additional Channel capacity as required to keep Channel capacity in excess of the reasonable demand therefor by users. (b) To ensure that the Certificate Holder is carrying on its responsibilities hereunder, the Certificate Holder shall, at the request of the Administrator, submit a report on cable technology in connection with the triennial review required by Section 3.5. Each report shall describe developments in cable technology, and whether, how, and by what date the Certificate Holder plans to incorporate those technological developments into the System. In addition, the report will describe the effect of those developments on public, educational, and governmental use of the System and the effect and compatibility of those technological changes on consumer electronic equipment. The report also shall describe how other cable companies have incorporated or are planning to incorporate the technological developments into their Systems and the estimated timetable for doing so. The Certificate Holder shall respond to any questions posed by the County concerning the report, and shall provide any documentation requested by the Board or the Administrator, including any information that may be deemed proprietary or confidential. 5.5 SYSTEM ARCHITECTURAL DESIGN REVIEW PROCESS. At least ninety (90) days prior to the date of initial construction of the Rebuild, the Certificate Holder shall deliver to the County a detailed architectural design plan, which shall include at least the following elements: (a) Design type, trunk and feeder design, headend location, and number and location of hubs or nodes. (b) Technical description of equipment at the headend and nodes. (c) Technical analysis of coaxial cable design or nodal service areas including for example, specifications for amplifiers, active and passive devices, fiber coupling equipment and power supplies. (d) Plans for standby power. (e) System level design maps and tree trunk maps to illustrate the architecture of the System. (f) Identification of what portions of the Rebuild will be aerial, and what portions will be underground, including a percentage breakdown. (g) The areas of the County to be served by each node, as well as the construction and energization schedule by node area (h) Description of changes in Subscriber drops and Converter equipment. The architectural design plan shall be shown on maps of industry standard scale using standard symbology, and shall depict all electronic and physical features of the cable plant. The County may review the plan and, within for five (45) days of the date the plan is made available for County review, submit comments to the Certificate Holder. Within fifteen (15) days of receipt of the comments, the Certificate Holder shall submit a revised plan to the County, either incorporating the comments or explaining why the comments were not included. The County may take any appropriate action it is entitled to take under this Certificate, the County Code, or other applicable law if it believes the design plan fails to satisfy or is likely to fail to satisfy the Certificate Holder's obligations. The County's review does not excuse any non-performance under this Certificate, the Code or other applicable law. 5.6 SYSTEM PHYSICAL DESIGN REVIEW PROCESS. The Certificate Holder shall provide the County with detailed design maps defining the geographical and technical physical design of the System and showing the areas of the County to be served by each node, as well as the construction and energization schedule by node area for the rebuilt System. Maps shall be provided at least forty-five (45) days prior to release for construction. The County may review the physical system design maps and submit comments to the Certificate Holder within fifteen (15) days of the date each map is provided to the County for review. The Certificate Holder shall take any such comments into account in implementing its construction plan. The corresponding detailed design map shall be made part of each permit application. 5.7 CONSTRUCTION MANUAL AND CUT-OVER PLAN. No later than sixty (60) days before the date construction of the Rebuild is to begin, the Certificate Holder shall provide for County review and approval, a Rebuild construction manual, Rebuild cut-over plan, installation manual, and plan for notifying area residents of the Rebuild work process. Construction of the Rebuild shall not begin until the County has approved the Certificate Holder's Rebuild cut-over plan, and issued the necessary right-of-way permits. 5.8 POST-REBUILD DESIGN MODIFICATIONS. At least ninety (90) days prior to the date of any construction on the System initiated after Completion of the Rebuild intended to implement any modifications to the design of the rebuilt System, the Certificate Holder shall deliver to the County a detailed description of the proposed design modifications. Plant extensions shall not be considered design modifications for purposes of this section. The description shall include any of the information required by subsection 5.5, relevant to an understanding of the proposed modification. The County may review the plan and, within thirty (30) days of the date the plan is made available for County review, submit comments to the Certificate Holder. 5.9 SYSTEM AND INSTITUTIONAL NETWORK REBUILD SCHEDULE. (a) The Certificate Holder shall begin construction of the Rebuild, including the Institutional Network, within six months of the Effective Date, and shall complete construction within two years of the Effective Date, in order to minimize disruption of the Public Rights-of-Way. (b) The Certificate Holder shall, no later than sixty (60) days before construction begins, make available to the County a detailed description of the proposed Institutional Network construction plan, including: (i) any maps showing the proposed routing of wires, cable and fibers; and (ii) the position of primary passive electronics to be installed or reconfigured. The County may make comments regarding the plan during the sixty (60) day period following such presentation, and the Certificate Holder shall take any such comments into account in implementing the plan. (c) The Certificate Holder's construction plan shall insure that service is extended to low income areas at least as quickly as it is extended to higher income areas. (d) All construction shall be performed in accordance with applicable provisions of the County Code and this Certificate, except where specifically waived in writing by the County. 5.10 SYSTEM ACCEPTANCE SCHEDULE. The Certificate Holder shall comply with the following procedures as it completes construction of rebuilt plant: (a) The Certificate Holder shall notify the County in writing ten (10) days in advance of completion of construction to and construction of each node. The notice shall include the date the Certificate Holder is prepared to conduct an acceptance test prior to or concurrent with activation of service. The County and the Certificate Holder shall jointly develop the standards and procedures required by the acceptance test on that portion of the System. The County shall have the option of attending the test. Within ten (l0) days of completion of the test, the Certificate Holder shall send the County the results of the test. (b) Successful completion of the first semi-annual FCC proof-of-performance test for an upgraded portion of the System shall constitute the final acceptance test for that portion. The Certificate Holder shall notify the County of the date at least fifteen (15) days in advance, in writing, that it will conduct such a test. The test must be conducted in the presence of the County's designated observer. If the tested portion of the System passes the performance test, that portion shall be deemed accepted by the County. If the tested portion does not pass, the Certificate Holder shall take all steps necessary to meet the applicable standards and the affected portion shall be retested in accordance with the above procedures. (d) Final acceptance of the entire System shall take effect when (i) all nodes as set forth in the system architectural design plan approved by the County pursuant to subsection 5.5 have been constructed, activated, and accepted pursuant to paragraph (a) above; and (ii) at least 80% of the entire System, as measured by the number of nodes, has passed the first semi-annual FCC proof-of-performance test. 5.11 PERIODIC PROGRESS REPORTING. Following the commencement of construction of the System Rebuild or any similar major construction, every three (3) months until the construction is completed, the Certificate Holder shall meet with County personnel appointed by the Administrator and provide an update on the progress of the Rebuild or other construction according to the Certificate Holder's general plan, unless the Administrator determines that such meeting is not necessary. Upon request, the Certificate Holder shall provide detailed written reports to the County on the Certificate Holder's progress in construction, within ten (10) days of the request. (a) Public Notification. Prior to the beginning of any System Rebuild or major construction and periodically during each phase, the Certificate Holder shall inform the public and its Subscribers about: (i) the progress of the Rebuild or major construction; (ii) areas where construction crews will be working, and (iii) any expected temporary interruptions to existing sentences which may occur. (b) Delays in the System Rebuild. The Certificate Holder shall not be excused from the timely performance of its obligation to begin and complete any System Rebuild within the times specified herein, except for the following occurrences: 1. Any "Force Majeure" situation, as described herein; 2. Unreasonable failure or delay by the County to issue any permits or permission upon a timely and complete application submitted to the County by the Certificate Holder or its contractor representative and tender of any required permit fee; and 3. Delays beyond the control of the Certificate Holder that the Certificate Holder could not reasonably have anticipated regarding the availability, shipment and arrival of necessary equipment, cables, electronics or hardware, protracted underground excavation, third-party refusal to allow necessary access to poles or other rights-of-way facilities, easement availability, changes in contractors or contractor personnel, or any other valid factor to, in writing, by the County as fully explained and reasonably justified in writing to the County by the Certificate Holder. (c) Consequences of Delays. Absent a showing of excusable delay pursuant to subsection 5.1 l(b) above, should the Certificate Holder be unable to demonstrate the commencement or timely completion of the System Rebuild (including the Institutional Network) by the times specified herein, or be unable to reasonably justify any delays, then the Certificate Holder shall be in violation of a material provision of this Certificate and the Board may, in its sole discretion either grant the Certificate Holder an extension of time to complete such constructions or implement any enforcement measures specified in this Certificate or the County Code, including but not limited to revocation of the Certificate. In the event of excusable delay pursuant to subsection 5. 11(b), the time for completion will be extended by the period of such delay. 5.12 TECHNICAL STANDARDS. The System shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards, including any such standards as hereafter may be amended or adopted by the County, subject to applicable federal law. 5.13 SYSTEM TESTS AND INSPECTIONS. (a) The Certificate Holder shall perform all tests necessary to demonstrate compliance with the requirements of the Certificate and other performance standards established by law or regulation, and to ensure that the System components are operating as expected. All tests shall be conducted in accordance with applicable federal laws and rules. (b) The Certificate Holder shall conduct tests as follows: 1. acceptance tests on each newly conducted or rebuilt segment prior to Subscriber connection or activation; 2. proof of performance tests on the System at least twice every calendar year or as required by FCC rules, whichever is more often, except as federal law otherwise limits the Certificate Holders obligation; 3. special tests when Subscriber complaints indicate tests are warranted; and 4. special tests at the County's request. (c) Tests shall be supervised by the Certificate Holder's chief technical authority, who shall certify all records of tests provided to the County. (d) The Certificate Holder shall provide the County with at least two (2) business days' prior written notice of, and opportunity to observe, any tests performed on the System. The County may also conduct inspections of construction areas and Subscriber installations, including but not limited to inspections to assess compliance with the Certificate Holder's construction and installation requirements. Inspection does not relieve the Certificate Holder of its obligation to build in compliance with all provisions of the Certificate and the County Code. (e) A written report of test results shall be filed with the County within fourteen (14) days of a request by the Administrator. In addition, the Certificate Holder shall retain written reports of the results of any tests required by the FCC, and such reports shall be submitted to the Administrator upon the Administrator's request. (f) If any test indicates that any part or component of the System fails to meet applicable requirements, the Certificate Holder, without requirement of additional notice or request from the County, shall take corrective action, retest the locations and advise the County of the action taken and the results achieved by filing a written report certified by the Certificate Holder's chief technical authority. 5.14 SYSTEM MAINTENANCE. (a) Interruptions to be Minimized. The Certificate Holder shall schedule maintenance on its System at times that will minimize the likelihood of interruptions in service to Subscribers. The Certificate Holder may intentionally interrupt service on the System only for good cause and for the shortest time possible and, except in emergency situations or to the extent necessary to fix a Subscriber's service problems, only after a minimum of forty eight (48) hours' prior notice to Subscribers, the County, and PEG Channel operators of the anticipated service interruption; provided, however, that planned maintenance that does not require more than two (2) hours' interruption of service that occurs between the hours of 12:00 midnight and 6:00 a.m., shall not require such notice to Subscribers, but shall require notice to the County no less than twenty-four (24) hours prior to the anticipated service interruption. Brief interruptions of service of less than five minutes which are necessary to conduct planned maintenance shall not require notice to Subscribers, the County, or PEG Channel operators. (b) Maintenance Practices Subject to Regulation. Maintenance of the System shall be performed in accordance with the technical performance and operating standards established by FCC rules and regulations. The County may monitor the Certificate Holder's maintenance practices and, to the extent permitted by applicable law, may waive requirements or adopt additional requirements as reasonable to ensure the System remains capable of providing high-quality service. 5.15 TYPES OF SERVICE. Should the Certificate Holder desire to change the selection of programs or services offered on any of its tiers, it shall maintain the mix, quality and level of services provided over the System. Any change in programs or services offered shall comply with all lawful conditions and procedures contained in this Certificate and in applicable law. 5.16 LEASED ACCESS CHANNELS. The Certificate Holder shall provide Leased Access Channels as required by federal law. 5.17 INTERCONNECTION. (a) GENERAL The Certificate Holder shall design its System so that it may be interconnected with other cable systems or similar communications systems in the area. Interconnection of systems may be made by direct cable connection, microwave link, satellite or other appropriate methods. The Certificate Holder shall cooperate with any interconnection corporation, regional interconnection authority, or state or federal regulatory agency which may be hereafter established for the purpose of regulating, facilitating, financing or otherwise providing for the interconnection of communications systems beyond the boundaries of the County. (b) INTERCONNECTION INITIATED BY THE COUNTY. Upon receiving the directive of the County to interconnect, the Certificate Holder shall immediately initiate negotiations with the other affected system or systems. The County may grant reasonable extensions of time to interconnect or rescind its request to interconnect upon petition by the Certificate Holder to the County. (c) INTERCONNECTION INITIATED BY THE CERTIFICATE HOLDER. No interconnection shall take place without notice to the County, and a demonstration that all signals to be interconnected will comply with applicable FCC technical standards for all classes of signals. 5.18 EMERGENCY ALERT SYSTEM. (a) The Certificate Holder shall install and thereafter maintain for use by the County an Emergency Alert System ("EAS") that complies with 47 C.F.R Part 11. (b) To the event permitted by 47 C.F.R. Part 11, the EAS shall be remotely activated by telephone and shall allow a representative of the County to override the audio and video on all Channels on the Certificate Holder's System that may lawfully be overridden, without the assistance of the Certificate Holder, for emergency broadcasts from a location designated by the County in the event of a civil emergency or for reasonable tests. To the extent permitted by applicable law or regulation, the EAS shall also be capable of transmitting emergency messages generated by the Virginia Department of Emergency Services. (c) The County will provide reasonable notice to the Certificate Holder prior to any test use of the EAS. The Certificate Holder shall cooperate with the County in any such test. 5.l9 USES OF SYSTEM. The Certificate Holder shall advise the Administrator of all active uses of the System, for both entertainment and other purposes, and the County shall have the right to conduct unannounced audits of such usage. 5.20 ADDITIONAL CAPACITY. The Certificate Holder shall notify the County, in writing, in advance of the installation of any fiber optic capacity not contemplated by the initial design or Rebuild of the System, so that additional fiber may be installed on an Actual Cost basis for Government and institutional use. At a minimum, this notification shall include the fiber count that the Certificate Holder is planning to install. If the County wishes to request additional fiber, it may notify the Certificate Holder within fifteen (15) days of receipt of the Certificate Holder's notification. 5.21 FAILURE GROUNDS FOR CANCELLATION. Failure on the part of the Certificate Holder to commence and diligently pursue each of the requirements and to complete each of the matters set forth in this Certificate or in plans submitted to the County regarding System design and construction, shall be grounds for revocation of the Certificate under and pursuant to the terms of Section 3.13; provided, however, that the Board in its sole discretion may extend the time for the completion of construction and installation for additional periods in the event the Certificate Holder, acting in good faith, experiences delays by reason of circumstances beyond its control, as agreed to by the Board. SECTION 6. OPERATIONS AND CONSUMER RELATIONS. 6.1 DAY-TO-DAY REGULATION. Pursuant to Section 41.2-18 of the Code and applicable federal regulations, the Administrator shall be responsible for administering and enforcing the terms and conditions of the Certificate, the Code and applicable regulations. 6.2 CUSTOMER SERVICE STANDARDS. The Certificate Holder shall satisfy the cable customer service standards or consumer protection standards set forth in the County Code. In addition, after reasonable notice to the Certificate Holder, the Certificate Holder shall comply with such additional or stricter customer service standards or consumer protection laws as the County may establish from time to time by ordinance or resolution 6.3 SERVICE INSTALLATION. Pursuant to Section 41.2-6(a) of the County Code, the Certificate Holder shall be capable of providing service to every residential Subscriber in the County, upon request, within seven (7) days of an application for service. For good cause shown, the Certificate Holder may request and the Administrator may grant reasonable extensions of time for commencement of operations. This Section shall not apply to business customers. 6.4 INSTALLATION COSTS TO SUBSCRIBER. (a) Line Extension Requirements. Within the County's boundaries, as they existed on the Effective Date of this Certificate, and in any area(s) added to the County's jurisdiction thereafter, the Certificate Holder shall extend its System to provide service to any Person, upon request, without charging such Person more than the standard installation charges permitted by law and applicable regulation. The Certificate Holder shall extend its System to serve business customers pursuant to terms and conditions agreed upon by the Certificate Holder and the business requesting service. (b) Request for Underground Installation. Should a Subscriber wish to have underground service in an area normally provided service via overhead construction, the Subscriber requesting such underground service shall pay the difference between the cost of underground construction and the cost for equivalent overhead installation. (c) Cost Estimates. The Certificate Holder agrees to furnish, without cost to a Subscriber or group of Subscribers, itemized cost estimates for any construction, or installation work which is being planned at the Subscribers expense. The Certificate Holder may not charge engineering costs to residential Subscribers. No work shall commence until it is approved in writing by a Subscriber. 6.5 CONTINUITY OF SERVICE. (a) It is the right of every Subscriber in the County to receive all available services from the Certificate Holder as long as the Subscriber's financial and other obligations to the Certificate Holder are satisfied. (b) The Certificate Holder shall ensure that all Subscribers receive continuous uninterrupted service. At the County's request, the Certificate Holder shall operate its System for a temporary period (the Transition Periods) following the termination, sale, or Transfer of its Certificate as necessary to maintain service to Subscribers, and shall cooperate with the County to assure an orderly transition from it to another Certificate Holder. The Transition Period shall be no longer than the reasonable period required to ensure that Cable Service will be available to Subscribers. During the Transition Period, the Certificate Holder will continue to be obligated to comply with the terms and conditions of this Certificate and applicable laws and regulations. (c) If the Certificate Holder abandons its System during the term of the Certificate, or fails to operate its System in accordance with the terms of this Certificate during any Transition Period, the County, at its option may operate the System, designate another entity to operate the System temporarily until the Certificate Holder restores service under conditions acceptable to the County or until the Certificate is canceled and a new Certificate Holder selected by the Board is providing service, or obtain an injunction requiring the Certificate Holder to continue operations. If the County is required to operate or designate another entity to operate the System, the Certificate Holder shall reimburse the County or its designee for all reasonable costs and damages incurred that are in excess of the revenues from the System. (d) The County shall be entitled to injunctive relief under the preceding paragraph if: 1. The Certificate Holder fails to provide Cable Service in accordance with its Certificate over a substantial portion of the County for ninety-six (96) consecutive hours, unless the County authorizes a longer interruption of service or the failure is due to force majeure as characterized in Section 11 herein; or 2. The Certificate Holder, for any period, willfully and without cause, refuses to provide Cable Service in accordance with its Certificate over a substantial portion of the County (e) Any direct or out of pocket costs the County incurs in connection with enforcing this subsection shall be reimbursed by the Certificate Holder within thirty (30) days of receiving an itemized bill from the County. 6.6 OTHER COMPLAINTS. The Certificate Holder shall establish a complaint system that follows a logical sequence through all levels of management and requires all levels of management to have an "open door" policy to any complaint issue raised by a Subscriber or citizen of the County. The complaint system shall be given wide publicity by the Certificate Holder. The Certificate Holder's telephone number for complaint resolution shall be published on all Subscriber bills and all Subscriber guides. In addition, the Certificate Holder shall respond in writing to County inquiries, whether oral or written, within seven (7) business days of the inquiry. With respect to written inquiries, the 7-day deadline shall begin to run from the date the County inquiry is mailed to the Certificate Holder. In all other cases, the 7-day deadline shall begin to run from the date the County contacts the Certificate Holder. 6.7 COMPLAINT REPORTS AND SEMI-ANNUAL CUSTOMER SERVICE MEETINGS. The Certificate Holder shall maintain files of all service calls, including Subscriber identification, date of request, date of completion and resolution data for a five-year period. The Certificate Holder shall also maintain files of all customer service and technical complaints (including Subscriber name, address, telephone number, date, nature of complaint and resolution), for a five-year period. Complaint reports shall be submitted to the Administrator on a quarterly basis, unless this requirement is waived by the Administrator, in writing. In addition, members of the Certificate Holder's customer service staff shall meet with the County Office of Citizen and Consumer Affairs on a semi-annual basis to discuss customer service issues, including, but not limited to, Subscriber complaint resolution procedures and complaint trends. 6.8 CUSTOMER SERVICE MONITORING. The Certificate Holder shall keep such records and maintain such monitoring equipment as is required to enable the County to determine whether the Certificate Holder is complying with all telephone answering standards required by applicable law or applicable customer service regulations, as amended from time to time. 6.9 HOME WIRING. The Certificate Holder shall comply with all applicable FCC requirements with respect to home wiring. 6.10 A/B SWITCH. To the extent consistent with federal law, the Certificate Holder agrees to provide to each Subscriber who requests one, at a price no greater than the cost to the Certificate Holder, a suitable switch which can be installed in the System in such a manner that the Subscriber can switch to an antenna and receive broadcast signals over the air. 6.11 PRIVACY OF SUBSCRIBERS. The Certificate Holder shall comply with applicable laws and regulations concerning Subscriber privacy. The Board reserves the right to prescribe, by ordinance, regulations establishing penalties for tampering with the System or interfering with Subscriber privacy. 6.12 CABLE RESEARCH. Subject to applicable State and federal law, nothing in Section 6.11 shall prohibit the Certificate Holder from providing names and addresses of Subscribers to the County for research related to cable television services, as long as the disclosure does not directly or indirectly reveal Subscriber viewing habits or the nature of any transactions made by the Subscriber over the System. Immediately after the conducting of any research sponsored by the County, all Subscriber data provided by the Certificate Holder shall be returned. The Certificate Holder shall inform Subscribers of this Section on an annual basis, and shall not provide to the County the name and address of any Subscriber requesting that such information not be provided. 6.13 SUBSCRIBER SURVEY. The Certificate Holder shall mail to Subscribers, at the Certificate Holder's expense, a questionnaire prepared by the Administrator, provided that the Certificate Holder shall not be required to mail more than one questionnaire during any calendar year. Each questionnaire shall include an envelope (postage prepaid by the Certificate Holder) addressed to the Administrator. 6.14 SUBSCRIBER NOTICES AND PUBLICATIONS. All Subscriber notices and publications shall be provided to the County at least ten (10) days before they are scheduled to be published or otherwise generated. During this 10 day period, the Administrator may review the proposed publication(s) and/or notice(s) and submit comments to the Certificate Holder. The Certificate Holder shall take such comments into account in preparing the final notice(s) and/or publication(s). If the Administrator does not submit comments within the 10-day review period, the proposed publication(s) and/or notice(s) shall be deemed approved. 6.15 SYSTEM OUTAGES. Within thirty (30) minutes of detecting an unplanned Outage, the Certificate Holder shall notify the County Office of Citizen and Consumer Affairs that such an Outage has occurred. The required notice shall include an estimation of the amount of time necessary to complete repairs and to restore service. SECTION 7. REPORTS TO THE COUNTY. 7.1 COMMUNICATIONS WITH REGULATORY AGENCIES. (a) The Certificate Holder shall file with the County all reports and materials submitted to or received from the FCC, the Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction over any matter pertaining to any aspect of operations hereunder or the financial arrangement therefor. For purposes of this subsection, reports and materials to be filed with the County include, by way of example and not limitation, proof of performance tests and results, Equal Employment Opportunity reports, and all petitions, applications and communications of all types regarding the System or a group of Cable Systems of which the Certificate Holder's System is a part, including any such material submitted by or received by the Certificate Holder, an Affiliate, or any other Person on behalf of the Certificate Holder. (b) Materials filed with the County pursuant to Section 7.1(a) shall be submitted as follows: (i) materials submitted by the Certificate Holder, an Affiliate, or any other Person on behalf of the Certificate Holder shall be filed with the County at the time they are submitted to the receiving agency; and (ii) materials received by the Certificate Holder shall be filed with the County within thirty (30) days of the date they are received by the Certificate Holder, except that if applicable law permits a response to such materials by the County and sets a deadline of sixty (60) or fewer days for the County's response, they shall be filed with the County within five (5) days of the date they are received by the Certificate Holder. 7.2 ANNUAL REPORT. No later than ninety (90) days after the end of its fiscal year, the Certificate Holder shall submit a written report to the County, in a form directed by the County, which shall include: (a) A summary of the previous year's activities in development of the System, including but not limited to descriptions of services begun or dropped, the number of Subscribers gained or lost for each category of service, the number of pay units sold, the amount collected annually from users of the System and the character and extent of the services rendered to such users, including Leased Access Channel users; (b) A summary of complaints, identifying both the number and nature of the complaints received and an explanation of their dispositions, as such records are kept by the Certificate Holder, together with copies of any written complaints received. Where complaints involve recurrent System problems, the nature of each problem and the corrective measures taken shall be identified; (c) A report showing the number of service calls received by type during the prior quarter, and the percentage of service calls compared to the Subscriber base by type of complaint; (d) A copy of the Certificate Holder's rules and regulations applicable to Subscribers of the System; (e) An annual Statement of Gross Revenues derived from the operation of the System that is prepared in accordance with Generally Accepted Auditing Standards and certified by an independent certified public accountant; (f) A fully audited annual financial report for the previous calendar year prepared according to Generally Accepted Auditing Standards and certified by an independent certified public accountant. The audited annual financial report shall at minimum, include a year-end balance sheet; an income statement showing Subscriber revenue from each category of service and every source of non-Subscriber revenue, line item operating expenses, depreciation expenses, interest expenses, and taxes paid; a statement of sources and applications of funds, capital expenditures; and a depreciation schedule; (g) An annual list of officers and members of the Board of Directors or similar controlling body of the Certificate Holder and any Affiliates; (h) An organizational chart showing all Persons with more than a five (5) percent ownership interest in the Certificate Holder, and the nature of that ownership interest (limited partner, general partner, preferred shareholder, etc.); and showing the same information for each corporation or partnership that holds such an interest in the corporations or partnerships so identified and so on until the ultimate corporate and partnership interests are identified; (i) An annual report and SEC l0(k) filing for each entity identified in Section 7.2(h) of this Section that generates such documents; (j) Unless previously provided and accepted by the County, a summary of the results of, and/or, at the Certificate Holder's option, copies of the System's technical tests and measurements performed during the past year, showing conformity with FCC technical standards (k) Unless previously provided and accepted by the County, a detailed copy of updated maps depicting the location of all cable plants, showing areas served and location, of all trunk lines and feeder lines in the County, and including changes in all such items for the period covered by the report; (l) A statement of the physical miles of plant construction and plants in operation during the prior calendar year (categorized as aerial and underground); (m) A summary description of any cases where Subscribers contributed to plant extension; (n) A full schedule of all Subscriber and other user rates, fees and charges; (o) The Certificate Holder's policies regarding A/B switches; (p) The Certificate Holder's policies regarding Subscriber privacy; (q) A summary of Institutional Network facilities provided, including mileage of fiber installed, and the number of passive terminations; (r) A summary of minority business policies as specified by the County; and (s) Such other information as the County or the Administrator may direct. 7.3 CONSTRUCTION REPORTS. The Certificate Holder shall submit monthly construction reports to the County after the Certificate is awarded for any construction undertaken throughout the first twelve (12) months after the Effective Date of this Certificate, and thereafter upon written request of the County. With respect to the Rebuild, the first report shall be submitted thirty (30) days after the Rebuild begins, and the last report shall be submitted thirty (30) days after the Rebuild is completed. The Certificate Holder shall submit updated as-built system design maps to the County, or make them available for inspection with notice of their availability, within sixty (60) days of the completion of System construction in any geographic area. The maps shall be developed on the basis of post-construction inspection by the Certificate Holder and construction personnel to assess compliance with System design. Any departures from design shall be indicated on the as-built maps, to assist the County in assessing the Certificate Holder's compliance with its obligations. 7.4 QUARTERLY REPORTS. Within forty-five (45) days of the end of each calendar quarter, the Certificate Holder shall submit a report to the County containing the following information: (a) the number of Service calls (calls requiring a truck roll) received by type during the prior quarter, and the percentage of service calls compared to the Subscriber base by type of complaint; (b) the number and type of Outages known by the Certificate Holder for the prior quarter, identifying separately the following: (1) each planned Outage, the time it occurred, its duration, and the estimated areas and number of Subscribers affected; (2) each known unplanned Outage, the time it occurred, its estimated duration, and the estimated area and number of Subscribers affected, and if known, the cause; and (3) the total hours of known Outages as a percentage of total hours of System operation; and (c) data, in a form reasonably satisfactory to the County, that shows whether the Certificate Holder is meeting all applicable customer service standards, including but not limited to, telephone answering and transfer time requirements, the minimum busy signal percentage; appointment scheduling and response requirements; Subscriber notice and billing requirements; and disconnection procedures. The Certificate Holder shall keep such records as are reasonably required to enable the County to determine whether the Certificate Holder is complying with all such customer service standards, and shall maintain adequate procedures to demonstrate such compliance. 7.5 SPECIAL REPORTS. (a) The Certificate Holder shall submit a Copy and full explanation of any notice of deficiency, forfeiture, or other document issued by any State or federal agency instituting any investigation or civil or criminal proceeding regarding the System, the Certificate Holder, or any Affiliate of the Certificate Holder, to the extent the same may affect or bear on operations in the County. By way of illustration and not limitation, a notice that an Affiliate that has a management contract for the System was not in compliance with FCC EEO requirements would be deemed to affect or bear on operations in the County. This material shall be submitted in accordance with the deadlines specified in Section 7. l(b) herein. (b) The Certificate Holder shall submit a copy and brief explanation of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the Certificate Holder or by any partnership or corporation that owns or controls the Certificate Holder directly or indirectly. This material shall be submitted in accordance with the deadlines specified in Section 7. l(b) herein. 7.6 ADDITIONAL REPORTS. The Certificate Holder shall prepare and furnish to the County, at the times and in the form prescribed by the County, such additional reports with respect to its operation, affairs, transactions or property, as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the County in connection with this Certificate and/or the County Code. 7.7 VOLUMINOUS MATERIALS. If any books, records, maps or plans, or other requested documents are too voluminous, or for security reasons cannot be copied and moved, then the Certificate Holder may request that any inspection take place at some other location, provided that (1) the Certificate Holder shall make necessary arrangements for copying documents selected by the County after review; and (2) the Certificate Holder shall pay all travel and additional copying expenses incurred by the County (above those that would have been incurred had the documents, books and records been produced in the County) in inspecting those documents or having those documents inspected by the County's designee. The parties agree that any payments made by the Certificate Holder hereunder are not a franchise fee. 7.8 RETENTION OF RECORDS; RELATION TO PRIVACY RIGHTS. The Certificate Holder shall take all steps that may be required to ensure that it is able to provide the County with all information which shall be provided or may be requested under the County Code or this Certificate, including by providing appropriate Subscriber privacy notices. A Transfer does not operate to permit a new Certificate Holder to fail to provide records related to the operation of the System. Nothing in this Section shall be read to require the Certificate Holder to violate 47 U.S.C. § 551. The Certificate Holder shall be responsible for redacting any data that federal law prevents it from providing to the County. The County retains the right to question any such redaction and to challenge it in any forum having jurisdiction over such a challenge. Records shall be kept by the Certificate Holder for at least five (5) years. 7.9 WAIVER OF REPORTING REQUIREMENTS. The Board may waive the requirement of any particular report specified in this Section 7. 7.10 CHANGE IN SERVICES. The Certificate Holder shall provide thirty (30) days' advance written notice to Subscribers and the County of any change in Channel assignment or in the video programming service provided over any Channel, unless this requirement is waived by the Board or by operation of federal or State law, or due to events beyond the reasonable control of the Certificate Holder. SECTION 8. FRANCHISE FEES. 8.1 PAYOUT TO COUNTY. Each year during the term of the Certificate, as compensation for the use of the Public Rights-of-Way, the Certificate Holder shall pay to the County, on a quarterly basis, a franchise fee of four percent (4%) of Gross Revenues. Such payments shall be made to the County, no later than forty-five (45) days following the end of each calendar quarter. 8.2 INCREASE IN FRANCHISE FEE. If the limitation on the amount of franchise fees permitted under federal law is raised or eliminated, the County may, in its sole discretion, increase the amount of the franchise fee up to the maximum amount permitted under State and federal law at any time. However, the County shall provide the Certificate Holder with sixty (60) days' advance notice of such an increase. If no maximum amount is specified, the County may amend this Certificate to specify the amount the Certificate Holder will pay. Subject to the Certificate Holder's rights under Section 3.24, the Certificate Holder shall begin the increased fee from the effective date of the amendment to the Certificate. To the extent that the increased fee causes the Certificate Holder's franchise fee liability to exceed five percent (5%) of its annual Gross Revenues, the Certificate Holder may offset any amount paid to the County under Section 9.2(b) (operating support for the Community Access Corporation) against franchise fees owed hereunder. 8.3 SUPPORTING INFORMATION. Each franchise fee payment shall be submitted with supporting detail and a statement certified by the Certificate Holder's chief financial or accounting officer or an independent certified public accountant, reflecting the total amount of monthly Gross Revenues for the payment period and a breakdown by major revenue categories (such as Basic Service, cable programming service, premium service, etc.). The County shall have the right to require further supporting information for each franchise fee payment. 8.4 LATE PAYMENTS. In the event any franchise fee payment or recomputation amount is not made on or before the required date, the Certificate Holder shall pay, during the period such unpaid amount is owed: (i) additional compensation and interest charges computed from such due date, at an annual rate of ten percent (10%); and (ii) a one-time penalty of ten percent (10%). 8.5 AUDIT. (a) The County, or such person or persons designated by the Administrator on the County's behalf, shall have the right to inspect and copy records and the right to audit and to recompute any amounts determined to be payable under this Certificate, whether the records are left by the Certificate Holder, an Affiliate, or any other entity that collects or receives funds related to the Certificate Holder's operation in the County, including, by way of illustration and not limitation, any entity that sells advertising on the Certificate Holder's behalf. If an audit discloses an overpayment or underpayment of franchise fees, the County shall notify the Certificate Holder of such underpayment or overpayment within ninety (90) days of the date the audit was completed. The County, in its sole discretion, shall determine the completion date for any audit conducted hereunder. (b) The Certificate Holder shall be responsible for providing to the County all records necessary to confirm the accurate payment of franchise fees, without regard to whom they are held by. Such records shall be made available pursuant to the requirement of Sections 3.17 and 7.1 (a) herein. The Certificate Holder shall maintain such records for seven (7) years. (c) The County's audit expenses shall be borne by the County unless the audit determines payment to the County should be increased by more than five percent (5%) in the audited period, in which case the costs of the audit shall be borne by the Certificate Holder as a cost incidental to the enforcement of the Certificate. Any additional amounts due to the County as a result of the audit shall be paid by the Certificate Holder to the County within thirty (30) days following written notice to the Certificate Holder by the County of the underpayment, which notice shall include a copy of the audit report. If recomputation results in additional revenue to be paid to the County, such amount shall be subject to a ten percent (10%) annual interest charge and a one-time ten percent (10%) penalty. If the audit determines that there has been an overpayment by the Certificate Holder, the Certificate Holder may credit any overpayment against its next quarterly payment. (d) The Certificate Holder shall maintain its fiscal and financial records and have all relevant fiscal and financial records maintained by others on its behalf in such a manner as to enable the County to determine the cost of assets of the Certificate Holder which are used in providing services within the County and to determine Gross Revenues. (e) The audit provisions set forth in this subsection shall similarly apply to the PEG support payments specified in subsection 9.2 of this Certificate and the financial obligations established in the Settlement Agreement attached as Exhibit E. 8.6 NO LIMITATION ON TAXING AUTHORITY. (a) Nothing in this Certificate shall be construed to limit any authority of the Board to impose any tax, fee, or assessment of general applicability. By way of illusion and not limitation, to the extent permitted by applicable law, the Board may impose a tax, fee, or other assessment on any Person (other than a cable operator) with respect to Cable Service or other communications service provided by such Person over a Cable System for which charges are assessed to Subscribers but not received by the cable operator. (b) The franchise fee payments required by this Certificate shall be in addition to any and all taxes of a general nature (i.e., those which are not applicable solely to cable television operations within the County) or other fees or charges which the Certificate Holder shall be required to pay to the County or to any local, State or federal agency or authority, as required herein or by law, all of which shall be separate and distinct obligations of the Certificate Holder. The Certificate Holder shall not have or make any claim for any deduction or other credit of all or any part of the amount of said franchise fee payments from or against any of said County taxes or other fees or charges which the Certificate Holder is required to pay to the County, except as expressly permitted by law. The Certificate Holder shall not apply nor seek to apply all or any part of the amount of said franchise fee payments as a deduction or other credit from or against any of said County taxes or other fees or charges, except as expressly permitted by law. Nor shall the Certificate Holder apply or seek to apply all or any part of the amount of any of said taxes or other fees or charges as a deduction or other credit from or against any of its franchise fee obligations, except as expressly permitted by law. 8.7 CREDIT FOR PAYMENT OF COUNTY GROSS RECEIPTS TAX. If a Transfer of the Certificate is effected during the 1998 calendar year, then the transferee Certificate Holder shall be entitled to a credit against franchise fees that the transferee Certificate Holder owes to the County. Any such credit shall be based upon the 1998 gross receipts taxes paid by the transferor Certificate Holder to the County that are attributable to any portion of the 1998 calendar year (i) after the date on which the transferor Certificate Holder ceased to do business in the County, and (ii) for which period of time the transferor Certificate Holder did not obtain a refund.. The transferee Certificate Holder may deduct the credit from the quarterly franchise fee payments owed under this Section 8 until the franchise fee credit is exhausted. In no event shall the credit be applied beyond the first two quarterly franchise fee payments owed to the County. To the extent that the franchise fee credit is not sufficient to completely offset the payment of franchise fees owed during a particular quarter, the transferee Certificate Holder shall make a franchise fee payment to the County equal to the difference between the amount of the credit and the transferee Certificate Holders franchise fee obligations for the quarter. Thereafter, the transferee Certificate Holder shall be obligated to remit full franchise fee payments to the County in accordance with Section 8 of the Certificate. SECTION 9. CHANNELS AND FACILITIES FOR PUBLIC, EDUCATIONAL AND GOVERNMENTAL USE. 9.1 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS CHANNELS. (a) Beginning on July 1, 1998, and until the Rebuild has been completed and accepted, the Certificate Holder shall provide six (6) analog video Channels for public, educational and governmental use. The six (6) FOG Channels shall be allocated as follows: (1) One fill-time analog video Channel for County government use; (2) Four full-time analog video Channels for educational access use by the Arlington County Public Schools; and (3) One full-time analog video Channel for public access by the CAC (Arlington Community Television) or other County designee. During the System Rebuild, the Certificate Holder shall retain the right to continue programming the Educational Access Channel currently used to carry commercial video programming. The Arlington County Public Schools, however, may reclaim the foregoing Educational Access Channel at any time during the Rebuild, after providing the Certificate Holder with thirty (30) days' advance written notice of its intent to do so. Existing PEG Channel assignments shall be retained throughout the Rebuild. (b) After the Rebuild is completed and accepted, the Certificate Holder shall continue to provide six (6) analog video Channels for noncommercial public, educational and governmental use, which Channels shall be in addition to any capacity provided on the institutional Network pursuant to Section 9.8. The six (6) PEG Channels shall be allocated as follows: (1) Two fill-time analog video Channels for County government use; (2) Three full-time analog video Channels for educational access use by the Arlington County Public Schools; provided that the Arlington County Public Schools shall not be obligated to relinquish one of their four (4) existing Educational Access Chancels to the Certificate Holder until such time as the Arlington County Public Schools are satisfied that the Institutional Network is operating properly and is capable of providing distance learning functions at least equivalent to those provided over the current Educational Access Channels; and (3) One full-time analog video Channel for public access use by the CAC (Arlington Community Television) or other County designee. (c) Additionally, the Certificate Holder shall make available up to ten percent (10%) of the System's total downstream digital capacity for PEG use (the "Digital Set-aside"), subject to a limit of twenty-five (25) Channel Equivalents. Capacity made available under this section shall be used for PEG purposes only. The County and Certificate Holder shall work together to implement technical solutions that make the most efficient use of the Digital Set-aside. The requirements of Section 9.4 (Management and Use of PEG Channels), 9.5 (Editorial Control), and 9.6 (Indemnification) shall apply to programming provided over the Digital Set-Aside. (d) Public, Educational and Governmental Access Channel assignments should not be changed unless there is good cause and the entity responsible for managing the PEG Channel consents to the change. Such consent shall not be unreasonably withheld. Access channel assignments should be the same throughout the System. If the Certificate Holder decides to change the channel designations for PEG Channels, it must provide six (6) months notice to the County prior to doing so, and shall reimburse the County, the CAC and/or PEG users for any costs incurred for purchasing or modifying any equipment or for making logo changes necessitated by the channel designation changes. Alternatively, the Certificate Holder may choose to supply such equipment itself, provided such equipment is satisfactory to the County, the CAC or PEG users. (e) Any reference to an upstream or downstream analog channel for PEG use refers to a 6 MHz Channel. Any entity that manages a PEG Channel may use that capacity to provide one or more Channels of service. (f) All PEG Channels transmitted in the same format as Basic Service Channels shall be carried on the Basic Service tier and shall be provided County-wide. 9.2 PEG SUPPORT OBLIGATIONS. (a) The Certificate Holder shall make the following capital support payments: (1) a one-time payment of $850,000 (the "Capital Support Grant") to be used for PEG equipment (including, but not limited to, studio and portable production equipment, editing equipment, and program playback equipment). The County, in its sole discretion, shall allocate the Capital Support Grant among the Arlington County government, the Arlington County Public Schools and the CAC. Payment of the Capital Support Grant shall be made to the County in one lump sum on the Effective Date of this Certificate. In lieu of providing the entire Capital Support Grant, the Certificate Holder may make in-kind equipment contributions to PEG entities, with the prior consent of the recipient. The fair market value of any equipment furnished by the Certificate Holder pursuant to this provision shall be credited against the Capital Support Grant. (2) an annual payment of $289,000, adjusted by CPI (the "Capital Support Fund"), to be used for PEG access equipment (including, but not limited to, studio and portable production equipment, editing equipment and program playback equipment) or for PEG-related facilities renovation or construction. The County, in its sole discretion, shall allocate the Capital Support Fund among the Arlington County government, the Arlington County Public Schools and the CAC. The Capital Support Fund shall be paid to the County on a quarterly basis, no later than forty-five (45) days following the end of each calendar quarter. The first payment due under this provision shall be remitted to the County within forty-five (45) days of September30, 1998. (b) The Certificate Holder shall pay the CAC (Arlington Community Television ("ACT')) one percent (1%) of Gross Revenues per year (the "CAC Operating Support Grant") for training, outreach, administrative and technical support and production assistance. The CAC Operating Support Grant shall be paid to ACT on a quarterly basis, no later than forty-five (45) days following the end of each calendar quarter. The first payment due under this provision shall be remitted to ACT within forty-five (45) days of September 30, 1998. (c) The Certificate Holder shall be financially responsible for constructing a public access studio for ACT, and moving equipment designated by ACT into the new studio, pursuant to plans and the terms of a construction bid agreed to by ACT and the Certificate Holder. The public access studio space constructed for ACT shall be at least 3,000 square feet in size. The Certificate Holder's obligation to underwrite the entire expense of constructing a new public access studio shall not be discharged until ACT has approved, in writing, each stage of the construction process, including, but not limited to, selecting a qualified architect and contractor. (d) If the Certificate Holder and the County or the Certificate Holder and the CAC disagree at any time as to the amounts due under this subsection 9.2, the Certificate Holder shall, during the period of any such dispute, continue paying the specified grant(s) in the amounts paid to the recipient in the last undisputed payment; provided, however, that the County or the CAC shall return any such amounts paid that are later determined to be in excess of the correct amounts. (e) In the event any payment required by this subsection 9.2 is not made on or below the required date, the Certificate Holder shall pay, during the period such unpaid amount is owed: (i) additional compensation and interest charges computed from such due date, at an annual rate of ten percent (10%); and (ii) a penalty calculated from the applicable due date, at an annual rate of ten percent (10%). The Certificate Holder waives any right to claim than any interest or penalties imposed hereunder constitute franchise fees within the meaning of 47 U.S.C. § 542. 9.3 RETURN FEED FROM FACILITIES. (a) The Certificate Holder shall provide the following Institutional Network sites with two (2) additional fibers: the Career Center; the County government building; the Fire Academy; and the Education Center. These fibers shall be used for the bidirectional transmission of video programming between the foregoing locations and the Certificate Holder's headend. Each fiber shall originate at the address specified in Exhibit D, run through the County's control center, and terminate at the Certificate Holder's headend. The fiber optic links required by this paragraph shall be completed concurrently with the Institutional Network. Furthermore, the Certificate Holder shall continue to provide the existing fiber feed from the Career Center to the headend until the Institutional Network is operational. (b) Within twenty-four (24) months of the Effective Date, the Certificate Holder shall, with respect to the two dedicated fibers, provide and install, at no cost to the County, at the Certificate Holder's headend and each origination point specified in paragraph (a) above, all equipment for amplification, conversion, receiving, transmitting, routing, and processing of signals to be used for public, educational, and governmental purposes on the System under this subsection 9.3. (c) The dedicated connections required by Section 9.3(a) shall be designed and built to include all equipment required at the Certificate Holder's headend and each origination point for the transport of video and audio source material, including but not limited to, laser transmitters, modulators, and processors, drops and wiring, so that each PEG facility identified in paragraph (a) can send audio and video signals to the headend on the two dedicated fibers. The Certificate Holder shall bear the cost of providing equipment necessary to meet this requirement. (d) During the term of the Certificate or any extension(s) thereof, the Certificate Holder shall maintain a fiber optic connection between the Arlington Career Center and one microwave send and receive site in Arlington operated by George Mason University; the fiber optic connection shall be capable of performing the same function as the connection in existence as of June 1, 1998. (e) During the term of the Certificate or any extension(s) thereof, if the CAC (Arlington Community Television) moves its access facility from its location at the offices of the Certificate Holder, the Certificate Holder shall provide to the CAC a fiber optic return feed to the Certificate Holder's headend. 9.4 MANAGEMENT AND USE OF PEG CHANNELS. (a) The Board may designate one (1) or more entities, including a nonprofit access management corporation, to perform any or all of the following functions: (1) to manage any necessary scheduling or allocation of capacity on the PEG Channels; and/or (2) on the County's behalf, to program any Public, Educational, or Government Access Channel. (b) The County, or any entity that manages a PEG Channel, shall be able to establish and enforce rules and procedures for the use of the PEG Channels pursuant to Section 61 l(d) of the Communications Act of 1934, as amended, 47 U.S.C § 53 l(d). The Administrator shall resolve any dispute among PEG users regarding the allocation or utilization of PEG Channels. (c) The Certificate Holder shall reasonably cooperate with the CAC in the promotion of CAC's activities through advertising on cable channels, subscriber notices and other media. 9.5 EDITORIAL CONTROL. Except as expressly permitted by federal law, the Certificate Holder shall not exercise any editorial control over the content of programming on Public, Educational or Governmental Access Channels (except for such programming as the Certificate Holder may produce and cablecast on such Channels). 9.6 INDEMNIFICATION BY PEG PROGRAMMING PRODUCERS AND USERS. All local producers and users of any of the PEG facilities or Channels shall agree in writing to defend, indemnify and hold harmless the Certificate Holder, and the County, the County School Board, and their elected and appointed officials, offices, boards, commissions, commissioners, agents, employees, and volunteers from any and all liability or other injury (including the reasonable cost of defending claims or litigation) arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owing to third parties by the producer or user; and for any over injury or damage in law or equity, which claims result from the use of a PEG facility or Channel. 9.7 CABLE DROPS AND OUTLETS FOR CERTAIN FACILITIES. Upon the request of the County, the Certificate Holder shall provide the following, free of charge, to: (i) each floor of all buildings, or portions thereof, in Arlington County that are owned or leased by the County or the Arlington County Public Schools, (ii) all public institutions of higher education in the County; and (iii) all certified K-12 schools in the County; (a) at least one (1) service drop and outlet; (b) at least one (1) converter, which shall be replaced with a digital converter, as necessary, to receive Basic Service and Cable Programming Service; and (c) activated Basic Service and Cable Programming Service. The Certificate Holder shall also provide, free of charge, six (6) of each item and service included under items (a) through (c) of this Section within the facility of the CAC (Arlington Community Television). 9.8 INSTITUTIONAL NETWORK. (a) Concurrent with the installation of fiber optic capacity during the System Rebuild, the Certificate Holder shall complete construction of an Institutional Network, at no cost to the County, to the locations listed in Exhibit A. In the course of constructing the Institutional Network, the Certificate Holder may place Institutional Network facilities in County-owned conduit, after receiving County approval in the County's sole discretion. The Institutional Network shall be a bidirectional, fully fiber optic network designed and constructed so that the locations designated in Exhibit A (the "I-Net Sites") can originate and receive fully interactive video, data and voice signals. In addition, the Institutional Network shall be available for the exclusive use of the County throughout the term of the Certificate or any extension thereof (1) The Certificate Holder shall provide 6 single-mode fiber counts within the sheath used by the Certificate Holder, between each I-Net Site and the Institutional Network control center. This fiber is intended to be used for governmental, educational and other noncommercial purposes only. The County shall not sublease, barter, sell, or give away capacity on the fibers provided hereunder to any private entity to use for commercial purposes without the Certificate Holder's prior consent. The limitations in this paragraph shall not prevent the County from subleasing, bartering, selling, or giving away capacity on the Institutional Network to any public or nonprofit entity for noncommercial purposes. (2) The Institutional Network shall have two (2) control centers and fiber hubs. One control center and hub shall be located in a County facility designated by the Administrator, and shall be used for non-school sites. The other control center and hub shall be located in the Education Center and shall be dedicated to public school sites. The two hubs shall be interconnected using a single-mode fiber optic line. In addition, the Certificate Holder shall passively terminate six fibers to connectors at the patch panel of the telephone equipment room of each I-Net Site. All equipment necessary to operate the County's fiber hubs and control centers shall be provided by the County. (3) During the System Architectural Design Review Process and the System Physical Design Review Process, the County may identity substitutes for any one or more of the I-Net Sites listed in Exhibit A, provided that any such substitution shall not impose any additional material cost on the Certificate Holder, or interfere with the Certificate Holder's Rebuild construction schedule. The County may also request redundant routing between one or more sites; such a request for redundant routing shall be deemed a substitution of an I-Net Site, provided that it does not impose any additional material cost on the Certificate Holder; the County shall bear any additional such cost on an Actual Cost basis. The County may also request during the System Architectural Design Review Process and the System Physical Design Review Process, that the number of fibers to be provided at a site or sites be increased or reduced, so long as the total number of fibers needed to serve all of the I-Net Sites listed in Exhibit A remains the same, and so long as such substitution does not materially increase the Certificate Holder's construction costs. (4) Construction of the Institutional Network pursuant to this Section 9.8(a) shall be deemed accepted by the County upon completion of the following procedures: (A) The Certificate Holder shall notify the County in writing fifteen (15) days in advance of completion of construction of each site identified in Exhibit A. The notice shall include the date the Certificate Holder is prepared to conduct an OTDR test at 1550 nm and 1310 nm end-to-end. The test must be successfully completed and must be conducted in the presence of the County's designated observer. The test shall be deemed successfully completed if: (i) maximum link losses do not exceed 0.7 dB/km at 1310 nm, (ii) average connector losses do not exceed 0.3 dB, and (iii) maximum connector losses do not exceed 0.75 dB. (B) The County shall also have the option of conducting a physical inspection of the construction and connections to the site. This inspection shall be conducted no later than the date of the test in subparagraph (A). (C) If the connections to the site pass the performance test required by subparagraph (A) and the County does not inform the Certificate Holder in writing within 30 days that the physical inspection discloses errors in construction or installation or fails to conform with the approved design, the site shall be deemed accepted. (D) The Institutional Network shall be deemed accepted when the last of the sites identified in Exhibit A meets the foregoing requirements; provided, however, if during the System Design Review, the County identifies the four remaining non-addressed sites, the Certificate Holder shall construct these sites before the Institutional Network is deemed accepted. (E) After completion of installation to each site, if not already provided pursuant to Sections 5.5, 5.6 or 5.9, the Certificate Holder shall provide the following documentation to the County: splice locations, panel numbers, cable numbering schemes, location of splitters, ODTR test results and documentation, and any other pertinent documentation. (5) The Certificate Holder and the County shall at all times use reasonable efforts to protect the security of the Institutional Network. For purposes of this paragraph, "to protect security,' means to protect those physical elements of the Institutional Network under the party's direct control from unauthorized intrusion, signal theft, tampering, wiretapping, or other actions that might: (i) compromise the integrity of or degrade the signals carried over the Institutional Network; or (ii) result in the unauthorized disclosure of information. {b) In years one through three of the term of this Certificate, the Certificate Holder shall provide an annual capital grant of $390,000 (the "I-Net Capital Grant") to be used by the County to purchase and install equipment needed to send and receive transmissions on the Institutional Network. (1) The I-Net Capital Grant shall be paid to the County on a quarterly basis, no later than forty-five (45) days following of each calendar quarter. The first payment due under this provision shall be remitted to the County within Forty-five (45) days of September 30, 1998. (2) Funds provided by the Certificate Holder pursuant to this Section 9.8(b) may be used by the County for any purpose consistent with this Section 9.8 (Institutional Network) or with Exhibit C (Supplemental Institutional Network Services). (c) In years four through fifteen of the term of this Certificate, the Certificate Holder shall provide the County with a separate annual capital grant of $ 117,000, adjusted by CPI, to fund the purchase of equipment needed to send and receive transmissions on the Institutional Network and replacement of such equipment. This grant shall be payable quarterly. Each payment shall be made to the County no later than forty-five (45) days following the end of each calendar quarter. (d) The Certificate Holder shall maintain, repair, reconstruct and, as necessary, replace Institutional Network plants at no cost to the County, as follows, during the term of this Certificate or any extension thereof. (1) Preventative and routine maintenance of the County's I-Net shall be performed at the same time and in the same fashion as routine and preventative maintenance are performed for the Certificate Holder's submember network. The Certificate Holder shall provide the County with its planned annual maintenance schedule in advance for each year. Actual or potential problems discovered during the course of preventative and routine maintenance shall be immediately reported to the Administrator. Within five (5) days of informing the County of an actual or potential problem, the Certificate Holder shall prepare and transmit a report to the Administrator describing the corrective action, if any, that was taken. (2) Within two (2) hours of receiving notice of or otherwise learning of a maintenance or repair problem, the Certificate Holder's technicians should arrive on-site to begin troubleshooting problems related to the Certificate Holder's responsibilities concerning the Institutional Network. At a minimum, the Certificate Holder's technicians shall, within four (4) hours after arriving at the affected site, temporarily repair the Institutional Network in a manner that permits fully operational connectivity (end to end). As necessary, the Certificate Holder shall complete permanent repairs within twenty-four hours of receiving notice of the maintenance or repair problem. Where, for reasons beyond the Certificate Holder's control, repairs cannot be completed within the time periods specified herein, even with the exercise of all due diligence, the Certificate Holder shall complete all necessary repairs in the shortest time possible. (e) The Certificate Holder shall provide supplemental Institutional Network services as described in Exhibit C. In addition to providing such services, the Certificate Holder shall provide the Arlington County Public Schools with Internet access service (not to include premises equipment), free of charge, up to a maximum bandwidth of l.5 Mbps of capacity. If additional bandwidth is requested by the Arlington County Public Schools, the Certificate Holder shall provide such bandwidth on an incremental cost basis. (f) During the design and construction of the Institutional Network, and after acceptance of the Institutional Network pursuant to Section 9.8(a)(3), the County may request that the Certificate Holder construct any additional Institutional Network facilities for the County. The Certificate Holder shall comply with any such request, and the County shall reimburse the Certificate Holder for the Actual Cost of any construction requested under this provision. (g) The Certificate Holder shall, at the County's request, interconnect the Institutional Network with any similar network designated by the County, allowing exchange of the full range of signals that may be carried on the Institutional Network. The County shall pay the Actual cost of the interconnection. (h) If the County wishes to use transmission capacity on the System beyond its rights to free use under this Certificate, the charges for such use shall be freely negotiated on terms and conditions equal to or more favorable to the County than those offered to any other major user by the Certificate Holder. 9.9 COSTS AND PAYMENTS NOT FRANCHISE FEES. The parties agree that any costs to the Certificate Holder associated with the provision of support for PEG access or the Institutional Network pursuant to this Certificate, including without limitation any payments made to the County under Sections 9.2 and 9.8, but excluding payments made under subsection 9.2(b), do not constitute and are not part of a franchise fee and fall within one or more of the exceptions to 47 U.S.C. § 542; provided, however, that all such costs are considered franchise costs pursuant to 47 C.F.R § 76.925(a). SECTION 10. EQUAL EMPLOYMENT OPPORTUNITY. (a) The Certificate Holder shall submit its annual FCC EEO filing, FCC Form 395-A, to the Administrator at the same time it is filed with the FCC. If and at such time that the FCC no longer requires such reporting, the Certificate Holder shall continue to comply with all generally applicable requirements imposed by the County. (b) The Certificate Holder shall not refuse to employ, discharge from employment, or discriminate against any Person in compensation or in terms, conditions, or privileges of employment because of race, color, religion, national origin, sex, sexual orientation, age, disability or marital status. The Certificate Holder shall comply with all federal, State and local laws and regulations governing equal employment opportunities, as the same may be amended from time to time. (c) The Certificate Holder shall provide training on an ongoing basis for its employees to maintain and upgrade skills and to prepare for promotional opportunities. SECTION 11. MISCELLANEOUS PROVISIONS. 11.1 BINDING ACCEPTANCE. This Certificate shall bind and benefit the parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns, and the promises and obligations herein shall survive the expiration date hereof 11.2 SEVERABILITY. If any term, condition, or provision of this Certificate shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the County and shall thereafter be binding on the Certificate Holder and the County. 11.3 PREEMPTION. In the event that federal or State laws, rules or regulations preempt a provision or limit the enforceability of a provision of this Certificate, the provision shall be read to be preempted to the extent and for the time, but only to the extent and for the time, required by law. In the event such federal or State law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding on the parties hereto, without the requirement of further action on the part of the County 11.4 COMPLIANCE WITH FEDERAL AND STATE LAWS. The Certificate Holder shall, at all times during the term of this Certificate, including all extensions and renewals thereof, comply with all applicable federal, State, and local laws and regulations. 11.5 FORCE MAJEURE. The Certificate Holder shall not be deemed in default of provisions of this Certificate or the County Code where performance was rendered impossible by war or riots, labor strikes or civil disturbances, floods, or other causes beyond the Certificate Holder's control, and the Certificate shall not be revoked or the Certificate Holder penalized for such noncompliance, provided that the Certificate Holder furnishes the County with prior written notice of the noncompliance, when possible, and takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible, under the circumstances, with the Certificate without unduly endangering the health, safety, and integrity of the Certificate Holder's employees or property, or the health, safety, and integrity of the public, the Public Rights-of-Way, public property, or private property. 11.6 GOVERNING LAW. This Certificate shall be governed in all respects by the law of the Commonwealth of Virginia 11.7 ORDER OF PRECEDENCE. Subject to Section 11.12, the terms of this Certificate are subject to the County Code, and in the event of any conflict, the Code shall prevail. 11.8 NOTICES. Unless otherwise expressly stated herein, notices required under this Certificate shall be delivered or sent via certified mail, return receipt requested, to the addressees below. Each party may change its designated address by providing written notice to the other party. 1. Notices to the Certificate Holder shall be mailed to: General Manager Cable TV Arlington 2707 Wilson Boulevard Arlington VA 22201 General Counsel Prime Communications- Potomac One American Center, Suite 3000 600 Congress Austin, TX 78701 2. Notices to the County, the Board, or the Administrator shall be mailed to: Clerk to the County Board Arlington County Board 2100 Clarendon Boulevard, Suite 300 Arlington, VA 22201 and to Cable Television Administrator Arlington County, Virginia 2100 Clarendon Boulevard, Suite 314 Arlington, VA 22201 3. The Certificate Holder shall at all times keep the County advised as to which individual(s) are authorized to act on behalf of the Certificate Holder and whose acts legally bind the Certificate Holder. 4. Unless otherwise provided by the County Code or by this Certificate, notices shall be effective upon receipt. 11.9 TIME OF ESSENCE. In determining whether the Certificate Holder has substantially complied with this Certificate, the parties agree that time is of the essence. As a result, the Certificate Holder's failure to complete construction, to extend service, to seek approval of Transfers or franchise modifications or to provide information in a timely manner may constitute material breaches. 11.10 CAPTIONS AND REFERENCES. (a) The captions and headings of sections throughout this Certificate are intended solely to facilitate reading and reference to the sections and provisions of this Certificate. Such captions shall not affect the meaning or interpretation of this Certificate. (b) When any provision of the County Code is expressly mentioned herein, such reference shall not be construed to limit the applicability of any other provision of the Code that may also govern the particular matter in question. 11.11 RIGHTS OF THIRD PARTIES. This Certificate is not intended to, and shall not be construed to, grant any rights to or vest any rights in third parties, except as expressly provided herein. 11.12 MERGER OF DOCUMENTS. This Certificate constitutes the entire agreement between the County and the Certificate Holder and supersedes all prior oral or written certificates, agreements, drafts, commitments, or understandings with respect to the matters provided for herein. The parties recognize, however, the right of the County to establish and amend the County Code from time to time as empowered by the Commonwealth of Virginia and the Certificate Holder agrees to abide by all such applicable laws and regulations, except to the extent inconsistent with the Certificate Holder's contractual rights under this Certificate. AGREED TO THIS 23rd DAY OF JUNE, 1998. Approved as to form: The County Board of Arlington County, Virginia ______________________ By: _______________________________ County Attorney County Manager SBC Media Ventures, L.P., a Delaware Limited Partnership By: ______________________________ Title: ____________________________ EXHIBIT A: INSTITUTIONAL NETWORK This Exhibit identifies the sites to be served by the Network. The Certificate Holder shall construct fiber to the locations listed below, in accordance with Section 9.8(a). The site list indicates to which of the two Institutional Network hubs a site should be connected, under the column headed "Hub Site." Institutional Network Sites Agency Location Address Hub Locations 1 County Government Court House Plaza (County Hub) 2100 Clarendon Blvd. CHP 2 County Government Court Square West 1400 N. Uhle St. CHP 3 County Government Courts/Police 1425 N. Court House Rd. CHP 4 County Government Central Library 1015 N. Quincy St. CHP 5 Parks and Recreation Fairlington 3308 S. Stafford St. CHP 6 DPW Water Sewer Streets 4200 S. 28th St. CHP 7 DHS Fenwick 800 S. Walter Reed CHP 8 Fire Department Fire Prevention Division 1020 N. Hudson St. CHP 9 Fire Department Fire station #1 500 S. Glebe CHP 10 Fire Department Fire station #2 4805 Wilson Blvd. CHP 11 Fire Department Fire station #3 3900 Lee Hwy. CHP 12 Fire Department Fire station #4 3121 N. 10th St. CHP 13 Fire Department Fire station #5 1750 S. Hayes St. CHP 14 Fire Department Fire station #6 6929 Lee Hwy. CHP 15 Fire Department Fire station #7 3116 S. Abingdon St CHP 16 Fire Department Fire station #8 4845 Lee Hwy. CHP 17 Fire Department Fire station #9 1900 Walter Reed Dr. CHP 18 Fire Department Fire station #10 1559 Wilson Blvd. CHP 19 Parks and Recreation Lubber Run 300 N. Park Dr. CHP 20 Human Services DHS 1725 N. George Mason CHP 21 Human Services DHS (proposed facility) Court House Plaza Site CHP 22 Continuing Education Langston 4854 Lee Hwy Ed Center 23 Elementary School Abingdon 3035 S. Abingdon St. Ed Center 24 Elementary School Arlington Science Focus (Page) 1501 N. Lincoln St. Ed Center 25 Elementary School Ashlawn 5950 N. 8th Rd. Ed Center 26 Elementary School Barcroft 625 S. Wakefield St. Ed Center 27 Elementary School Barrett 4401 N. Henderson Rd. Ed Center 28 Elementary School Claremont 4700 S. Chesterfield Rd. Ed Center 29 Elementary School Drew Model 3500 S. 24th Street Ed Center 30 Elementary School Glebe 1770 N. Glebe Rd. Ed Center 31 Elementary School Glencarlyn 737 S. Carlin Springs Rd. Ed Center 32 Elementary School Henry 701 S. Highland St. Ed Center 33 Elementary School Jamestown 3700 N. Delaware St. Ed Center 34 Elementary School Key 2300 Key Blvd. Ed Center 35 Elementary School Long Branch 33 N. Fillmore St. Ed Center 36 Elementary School McKinley 1030 N. McKinley Rd. Ed Center 37 Elementary School Nottingham 5900 Little Falls Rd. Ed Center 38 Elementary School Oakridge, South 1414 S. 24th Street Ed Center 39 Elementary School Oakridge, North 1415 S. Queen St. Ed Center 40 Elementary School Randolph 1306 S. Quincy St. Ed Center 41 Elementary School Taylor 2600 N. Stuart St. Ed Center 42 Elementary School Tuckahoe 6550 N. 26th St. Ed Center 43 High School Wakefield 4901 S. Chesterfield Rd. Ed Center 44 High School Washington-Lee 1300 N. Quincy St. Ed Center 45 High School Yorktown 5201 N. 28th St. Ed Center 46 High/Middle School Woodlawn/Stratford 4102 Vacation Lane Ed Center 47 Middle School Jefferson 125 Old Glebe Rd. Ed Center 48 Middle School Kenmore 200 S. Carlin Springs Rd. Ed Center 49 Middle School Swanson 5800 N. Washington Blvd. Ed Center 50 Middle School Williamsburg 3600 N. Harrison St. Ed Center 51 Middle/local Government Gunston 2700 S. Lang St. Ed Center 52 Schools Career Center 816 S. Walter Reed Dr. Ed Center 53 Schools Clarendon Education Center 2801 Clarendon Blvd. Ed Center 54 Schools Education Center (ACPS Hub) 1426 N. Quincy St. Ed Center 55 Schools Facilities (Trade Center) 2770 S. Taylor St. Ed Center 56 Elementary School Arlington Traditional 855 N. Edison St. Ed Center 57 Joint Wilson Adult Education Arlington Mill Community Center 4975 Columbia Pike Ed Center 58 Elementary School Proposed Proposed Elementary School Southern Arlington County Ed Center 59 DES County Trades Center 4300 29th St. CHP 60 County Additional site to be added by County CHP 61 County Additional site to be added by County CHP 62 County Additional site to be added by County CHP 63 County Trades Center (OSS) Equipment Division 2701 South Taylor St. CHP 64 County Fire Training Center 2800 South Taylor St. CHP 65 County Cherrydale Library 2190 North Military Rd. CHP 66 County Glencarlyn Library 300 S. Kensington St. CHP 67 County Shirlington Library 2700 S. Arlington Mill Rd. CHP 68 County Westover Library 1800 N. Lexington St. CHP 69 County Arlington Detention Center 1435 Courthouse Rd. CHP 70 County WETA 2775 S. Quincy St. CHP 71 County Madison Center 3829 N. Stafford St. CHP 72 County Lee Center 5722 Lee Hwy. CHP 73 County Culpepper Gardens Senior Center 4435 N. Pershing Dr. CHP 74 County Thomas Jefferson Center 3501 S. 2nd St. CHP 75 County Water Pollution Control 3402 S. Glebe Road CHP 76 County Trades Operations Center 4254 S. 28th Street CHP 77 County Reed School 1644 N. McKinley Rd. Ed Center EXHIBIT B PROPOSED CABLE TV ARLINGTON UPGRADE PARAMETERS General The Arlington County ("County") design incorporates some unique challenges. The high population density in the County, the large number of multi-unit dwellings to be served, the urban character of the County and the demographic interests of the community (widest possible range of services) combine to present situations not always seen in these proportions. Throughout the document we attempt to describe a "best-fit" logic that balances the need for financially responsible plant renewal, the need for sensitive consumer logistics, and the need to accomplish other telecommunications objectives of the County. Synopsis The renewal platform will be a 750MHz HFC architecture with fiber trunking, standby powering, and flexibility in accommodating fixture digital initiatives of the cable industry. Node size will average between 1000 and 1500, but will not be a design constraint, as trafficking and load demand issues are managed in other ways. The consumer impact of the renewal is carefully considered, with contractor selection and methodology optimized for the least practical disruption. Service, in general, is affected for the daylight hours only, and on only the day of and in the area under reconstruction. Supporting Discussion Detailed discussion follows, to the extent possible for this stage of the activity. Fiber Architecture The architecture of the fiber distribution system impacts flexibility, performance and cost. The planned system will employ 1310 nm and/or 1550 nm laser transmitting equipment. Recent experience and laboratory testing with Harmonic Lightwaves dispensed with concerns relative to the use of the 1550 nm Window in non-Dispersion Shifted Fiber. Also, Stimulated Brillouin Scattering (SBS) suppression was demonstrated, alleviating concerns over the issue of SBS, as well as other issues of fiber nonlinearity. Fiber Counts CATV =N This is the identifier for the number of fibers required to service the currently planned node sites. This will accommodate the design criteria of 4 trunk amps and 3 line extenders in cascade (nominal). CAP = S We will utilize this identifier to indicate the number of fibers required for a CAP effort. This will be held separate from the Telephony or the apartment application for the purpose of this work. Hotel = H This is being used to indicate the capacity required for hotel services in the Backbone fiber for the purpose of delivering Near Video on Demand or other (future) hotel services. Future Nodes = F The growth pattern for new construction is known and with the input from the Commercial Development Department, we can accurately estimate the needs for future Nodes and Hubs; this will be identified by "F". Contingency = C Contingency fibers will be added in the transport backbone to accommodate any possible future plans of reduction in Node sizes. Telephony - T We will assess all of the apartment complexes and will allocate capacity for targeted share tenant offerings. Return = R The return calculation includes (1) one fiber per node through the Backbone to the Head End. Bulk "extra" or standard capacity. We will add a future quantity of fibers, generally about 30%, that are unassigned for now. These fibers will be identified by "B". Telecommunications needs of the County: Capacity here is reserved for the shared sheath I-Net plant to accommodate the needs of the County. We call this term "G". Performance The entire system performance budget, in decibels, is allocated up between the Headend to the nodes, and the coaxial plant. Node Performance In an optical repeat system, node performance would range from 50 to 51.5 dB c/n ratio with -65 dB distortions. In an electrical repeat system, node performance would range from 50 to 5l.5 dB c/n ratio with -62 dB distortions due to remodulation. System Performance (Prepare and review cases for filing with the court;-Converter) Worst ease Carrier to Noise ratio would be 47 dB with -53 dB CTB and -51 dB CSO at the input to the converter. Since all distortions are calculated with CW carriers, real world distortion performance would be better by about 6 dB. Future Issues Diagnostics or status monitoring has typically been a manufacturer specific product. There is currently a movement underway to integrate various manufacturers' systems under common protocol known as SNOW (Simple Network Management Protocol). Currently we are evaluating various status monitoring systems in operation for the fiber network. The industry is divided over whether a diagnostic effort is best done from digital terminal (modems and digital converter) initiatives or by the monitoring of plant components. We are sympathetic to the argument that diagnostics from terminals are more illustrative of actual conditions, and may be better suited to comparisons and isolation of trouble points. Contractor Decorum We intend to select only contractors for the upgrade work that have experience in urban system reconstruction, and have engineering services to include balance and continuity assurance. The fiber overlays will be in place before the coaxial plant is disturbed, and only the sections affected for that day are disturbed, with same day signal restoration. This process has been used before successfully, and, together with design flexibility for maximum facilities reuse, is sensitive to the consumer issues of work done in the utility easements and the time of disruption. EXHIBIT C SUPPLEMENTAL INSTITUTIONAL NETWORK SERVICES (1) The Certificate Holder shall provide, at no expense to the County, fifty (50) cable modems for use by the County. The County may use such modems on the Institutional Network as described in paragraph (2), on the portion of the subscriber network made available to the County under Section 9. l(c) of the Certificate. These modems shall become the property of the County upon delivery. The County shall bear any installation costs for these modems, as well as the cost of additional modems provided by the Certificate Holder in excess of fifty (50). (2) The County may use cable modems on the subscriber network at such time as the Certificate Holder provides two-way cable modem service to Subscribers. The Certificate Holder shall dedicate for the County's cable modem use 6 MHz of downstream bandwidth and 2 MHz of upstream bandwidth within the capacity made available to the County pursuant to Section 9. l(c). If necessary, upstream bandwidth shall be provided within a 6 MHz Channel. Only cable modems approved for use by the Certificate Holder may be placed on the subscriber network. The County will initiate corrective action as necessary to avoid substantial negative impact on services provided to Subscribers by the Certificate Holder. (3) The Certificate Holder shall provide the following, at no expense to the County, to facilitate connection of the subscriber network and the Institutional Network: (a) single-mode fiber optic cable between the subscriber network and an Institutional Network site designated by the County; (b) a port on the Certificate Holder's router; and (c) the terminating equipment and electronics necessary to carry data transmissions between the subscriber network and the Institutional Network. Such terminating equipment and electronics shall be installed at each end of the fiber optic cables between the subscriber network and the Institutional Network control centers. This arrangement will enable each cable modem used by the County to obtain access to any location on the Institutional Network and any other cable modem user on the subscriber network in a secure fashion without using the Internet. (4) The Certificate Holder will facilitate access to the Internet by County cable modem users in the following manner: (a) If requested Internet information is available on the Certificate Holder's caching server, the server will provide the information to the County's cable modems on the subscriber network; and (b) All other access to the Internet will be directed through the Certificate Holder's router to the County's designated Internet service provider by means of the Institutional Network. (5) Additional service beyond those described above may be provided pursuant to the terms of Section 9.8(h) of the Certificate. EXHIBIT D: PEG ACCESS SITES Location Address Career Center 816 S. Walter Reed Drive County Government 2100 Clarendon Boulevard Fire Academy To be specified Education Center 1426 N. Quincy Street SETTLEMENT AGREEMENT THIS AGREEMENT is made this 23RD day of June, 1998, among: 1. The County Board of Arlington County, Virginia, a local governing body organized under Virginia law ("County Board"); 2. SBC Media Ventures, L.P. ("SBC-MV"), a Delaware partnership, d/b/a Cable TV Arlington; and 3. Prime Communications - Potomac, LLC ("Prime") a Delaware limited liability company. WITNESSETH: WHEREAS, on March 3, 1973, the County Board granted Arlington Telecommunications Corporation ("Artec") a Certificate of Public Convenience and Necessity (the "Certificate") to operate a cable television system in Arlington County, Virginia (the "County"); and WHEREAS, on December 1, 1983, Artec transferred the Certificate to Arlington Cable Partners ("ACP"); and WHEREAS, on July 8, 1993, ACP transferred the Certificate to SBC Media Ventures, Inc. ("SBC"); and WHEREAS, on February 3, 1996, SBC transferred the Certificate to SBC-MV; and WHEREAS, SBC-MV now holds the Certificate, as the successor in interest to SBC; and WHEREAS, the Certificate has been amended, from time to time, since March 3, 1973; and WHEREAS, the Certificate expires on October 18, 2000, and the County and SBC-MV have conducted negotiations to extend the term of the Certificate; and WHEREAS, SBC-MV, Prime, and Prime II Management, L.P., a Delaware limited partnership, have entered into a Purchase Agreement dated October 16, 1997 ("Purchase Agreement"), pursuant to which Prime would acquire the cable system owned and operated by SBC-MV in the County; and WHEREAS, SBC-MV has requested that the County Board approve the transfer of the Certificate to Prime ("the Transfer"), and that SBC-MV be relieved of all further liability and claims, whether known or unknown, under the Certificate and the Arlington County Code, and WHEREAS, the County Board has legal authority under County, state and federal law to approve or disapprove the Transfer; and WHEREAS, the County Board has concluded that Prime possesses the technical, financial, legal, and character qualifications required for a transferee pursuant to Chapters 41 and 42 of the Arlington County Code, as amended, and the Certificate, as amended, (jointly "County Cable Law"), and that the Transfer would serve the public interest, provided that Prime accepts the Certificate, the extension of the Certificate on the terms agreed to by SBC-MV, or both, as applicable, and further provided that certain actions as set forth in this Settlement Agreement are taken by SBC-MV and Prime to protect the public interest and to address certain risks to the County and its citizens associated with the Transfer; NOW, THEREFORE, in consideration of the promises and undertaking herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the Closing of the Proposed Transaction as contemplated by the Purchase Agreement, THE PARTIES DO HEREBY AGREE AS FOLLOWS: SECTION l. DEFINITIONS 1.1 "Certificate" means the Arlington County Certificate of Public Convenience and Necessity for Cable Television, dated March 3, 1973, as it now exists, or may be modified, extended or renewed. 1.2 "Certificate Holder" means SBC-MV and its lawful and permitted successors, assigns and transferees, including, if and when applicable, Prime. 1.3 "Closing" means the closing of the Proposed Transaction in the manner and on the date defined in the Purchase Agreement. 1.4 "Educational Access Channel" shall have the meaning given in Section 1.19 of the extended Certificate. 1.5 "Governmental Access Channel" shall have the meaning given in Section 1.21 of the extended Certificate. 1.6 "PEG" means public, educational, and governmental. 1.7 "Proposed Transaction" means Prime's acquisition of the cable system owned and operated by SBC-MV in Arlington County, Virginia, pursuant to the Purchase Agreement. SECTI0N 2. TRANSFER OF CERTIFICATE 2.1. In consideration for the promises and performances of SBC-MV and Prime, as expressed elsewhere in this Settlement Agreement, upon recommendation of the County Manager and approval of the County Board, the Certificate may be transferred to Prime at the Closing. It is expressly recognized by the parties that the Transfer is subject to the recommendation of the County Manager and requires the approval of the County Board in accordance with the County Cable Law. Such approval is a condition precedent to this Settlement Agreement. The execution of this Settlement Agreement in no way binds the County Board to approve the Transfer, and this Settlement Agreement will automatically become null and void if the County Board does not approve the Transfer. 2.2. SBC-MV promises in good faith to accept the extended Certificate on the terms approved by the County Board, before implementing the Transfer. 2.3. Prime agrees to accept unconditionally the extended Certificate at the Closing. 2.4. Prime accepts full and complete responsibility for those known past claims remaining at the time of the Transfer, specifically: any unpaid franchise fees; any unpaid PEG support funds; any known and unresolved consumer complaints; and any construction or facility requirements of the Certificate which the County has notified SBC-MV are unsatisfied. Nothing in this paragraph is intended to alter the terms of any existing contracted arrangements between Prime and SBC-MV. 2.5. The parties agree that this Settlement Agreement settles any claims and disputes regarding the Certificate at the date of Closing, whether known or unknown, except as enumerated in this Agreement and in the extended Certificate. 2.6. SBC-MV and Prime shall reimburse the County, up to a total of $400,000, for all direct and out of pocket costs the County incurred in connection with SBC-MV's Transfer application and the extension of the Certificate, including but not limited to the costs of negotiations, of evaluating the qualifications of the proposed transferee, and of preparing this Settlement Agreement and other documents. The County shall provide SBC-MV and Prime with an accounting of the expenses for which they are responsible, such as consultant fees, and shall supply SBC-MV and Prime with separate invoices for said expenses. SBC-MV and Prime shall deliver payment to the County within thirty (30) days of receipt of said invoices. Such payments are in addition to any franchise fees paid pursuant to the extended Certificate and the County Cable Law. For purposes of rate regulation, payments made to the County under this paragraph that are attributable to the Transfer of the Certificate shall not be considered a franchise requirement 47 C.F.R § 76.925, and shall not be passed through to Subscribers; conversely, payments that are attributable to the extension of the Certificate shall be considered a franchise requirement, and may be included in Subscribers' rates pursuant to 47 C.F.R § 76.922. Failure to make timely payment of said expenses, except for any expenses that are the Object of legitimate dispute, shall constitute a material violation of this Settlement Agreement and the Certificate. 2.7. If Closing does not occur within 180 days of the date of this Settlement Agreement, this Settlement Agreement may be terminated at the option of any party hereto or amended by mutual agreement of the parties. SECTION 3. NO EFFECT ON CERTIFICATE REQUIREMENTS 3.1. Nothing in this Settlement Agreement amends or alters the Certificate or any requirements therein or the County Cable Law. All provisions of the Certificate, as hereafter renewed, extended or amended, and the County Cable Law remain in full force and effect and are enforceable in accordance with their terms and with applicable law. 3.2. Each party to this Settlement Agreement, after consultation with its legal counsel to the facts surrounding this Settlement Agreement, conclude and agrees that no consideration provided pursuant to this Settlement Agreement can be construed to constitute a franchise fee, nor are any payments made under the terms of this Settlement Agreement subject to any limitations on franchise fees under applicable law or in the Certificate. SBC-MV and Prime hereby waive any current or future claim to the contrary. SECTION 4. EDUCATIONAL AND GOVERNMENTAL ACCESS SUPPORT 4.1. During the term of the extended Certificate and any extension thereof, the Certificate Holder shall pay $100,000 per year, adjusted by CPI (the "Educational Operating Support Grant") to the Arlington County Public Schools for training, technical and administrative support and production assistance related to the operation of the Educational Access Channels reserved for the school system's exclusive use. The Educational Operating Support Channel shall be paid to the Arlington County Public Schools on a quarterly basis, no later than forty-five (45) days following the end of each calendar quarter. The first payment due under this provision shall be remitted to the Arlington County Public Schools within forty-five (45) days of September 30, 1998. 4.2. During the term of the extended Certificate, and any extension thereof, the Certificate Holder shall pay the County $160,000 per year, adjusted by CPI (the "County Operating Support Grant") for: (i) the administration of the Certificate and Chapter 41.2 of the County Code; and (ii) training, outreach, administrative and technical support and production assistance related to the County's Governmental Access Channel. The Operating Support Grant shall be paid to the County on a quarterly basis, no later than forty-five (45) days following the end of each calendar quarter. The first payment due under this provision shall be remitted to the County within forty-five (45) days of September 30, 1998. 4.3 During the term of the extended Certificate, and any extension thereof, the Certificate Holder shall pay: (i) all rental costs for the public access studio constructed pursuant to Section 9.2(c) of the extended Certificate, in accordance with the Memorandum of Understanding between Cable TV Arlington and Arlington Community Television dated June 17, 1998, and (ii) all studio utilities including, but not limited to, telephone, electricity, gas, water and sewer services. 4.4. The Certificate Holder agrees that the payments required by this Section 4 do not constitute a franchise fee within the meaning of 47 U.S.C. § 542, provided, however, that such costs may be considered a franchise requirement pursuant to 47 C.F.R § 76.925. Furthermore, the Certificate Holder hereby waives any right it may have to challenge this provision before the FCC or in any court of competent jurisdiction. 4.5. Nothing in this Settlement Agreement shall replace or remove any obligations of the extended Certificate, including but not limited to any obligations regarding the construction, operation and maintenance of the Institutional Network SECTION 5. CREDIT FOR PAYMENT OF COUNTY GROSS RECEIPTS TAX If the extended Certificate is transferred to Prime at the Closing, Prime shall be entitled to the credit referenced in Section 8.7 of the extended Certificate. SBC-MV agrees that neither SBC-MV, its parent corporation, nor any of their affiliates shall apply for or receive a gross receipts tax refund from the County Commissioner of Revenue at any time prior to or subsequent to the Transfer of the extended Certificate. SECTION 6. RELEASE 6.1. Upon the unconditional acceptance of the Certificate by Prime, the County Board hereby releases all claims, known and unknown, against SBC Communications Inc., parent of SBC-MV, except for those subject to the substitute guarantee described in Section 6.2 herein. This release will be effective as and between the parties hereto only upon execution and acceptance of the substitute guarantees as described in Section 6.2 herein, the Transfer of the Certificate from SBC-MV to Prime, and the unconditional acceptance of this Settlement Agreement, and the extended Certificate by Prime. 6.2. Upon execution by Prime and acceptance by the County Board of a substitute guarantee substantially in the form described in the letter agreement attached hereto as Exhibit A, SBC Communications, Inc., shall be released from its Guarantee of Performance, executed February 28, 1996. SECTION 7. DISPUTES REGARDING THIS SETTLEMENT AGREEMENT 7.1. Neither Prime, SBC-MV, nor any of their affiliates, nor the County Board, shall take any action to challenge any provision of this Settlement Agreement as contrary to the Cable Communications Policy Act of 1984, 47 U.S.C. § §521 et seg., as amended or to FCC regulations; nor shall any entity described in this subsection 7.1 participate with any other person or entity in any such challenge. 7.2. If any provision of this Settlement Agreement is found to be unenforceable in a final judicial or administrative proceeding, the parties shall enter into good-faith negotiations with the intent of reaching an agreement that would place the County Board and cable system users and subscribers substantially in the same position as if this Settlement Agreement were fully enforceable. 7.3. If the negotiations described in Section 7.2 do not result in agreement between the parties within sixty days from the date of the final decision referred to in that Paragraph, then any party may call for binding arbitration within thirty days. Such arbitration shall have the goal of placing the parties in the same positions they would occupy if this Settlement Agreement had been fully enforceable. The parties shall select an independent mutually acceptable arbitrator who shall have available the full range of appropriate remedies. The arbitrator's decision shall be final and binding on both parties. The parties shall each pay their own costs to appear before the arbitrator and shall share the arbitrator's costs equally. SECTION 8. MISCELLANEOUS PROVISIONS 8.1. Entire Agreement. This Settlement Agreement constitutes the entire agreement of the parties with respect to the settlement of the claims addressed herein. No statements, promises or inducement inconsistent with this Settlement Agreement made by any party shall be valid or binding, unless in writing and executed by all parties. This Settlement Agreement may only be modified by written amendments hereto signed by all parties. 8.2 Severability. If any part, section, subsection, or other portion of this Settlement Agreement or any application thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason, such part, section, subsection or other portion, or the prescribed application thereof, shall be severable, and the remaining provisions of this Settlement Agreement, and applications thereof not having been declared void, unconstitutional or invalid, shall remain in full force and effect, subject to Section 7. 8.3. Authority. Each signatory to this Settlement Agreement represents that he or she has the authority to enter into this Settlement Agreement. 8.4. Voluntary Agreement. This Settlement Agreement is freely and voluntarily given by all of the parties, without any duress or coercion, and after each party has consulted with its counsel. Each party hereto has carefully and completely read all of the terms and provisions of this Settlement Agreement. Each party hereto acknowledges that this is a full, complete and final mutual release as set forth previously herein. 8.5. Successors and Assigns. This Settlement Agreement shall be binding upon, and shall insure to the benefit of, the parties hereto and their successors in interest, assigns, personal representatives and heirs. 8.6. Counterparts. This Settlement Agreement may be executed in several counterparts, each of which, when so executed, shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all parties shall not have signed the same counterpart. 8.7. Headings. The headings in this Settlement Agreement are for convenience of reference only and are not a material part of this Settlement Agreement. They shall not be used in determining the intent of the parties. 8.8. Governing Law. This Settlement Agreement shall be governed by and construed, and the legal relations between the parties determined, in accordance with the laws of the Commonwealth of Virginia. 8.9. Consent to Jurisdiction. All litigation that arises out of or is related to this Settlement Agreement shall be brought in the Circuit Court for Arlington County, Virginia, unless otherwise required by law to be filed in the federal court. In instances where such requirement exists, such litigation shall be brought in the U.S. District Court for the Eastern District of Virginia, Alexandria Division. SBC-MV and Prime consent to venue and jurisdiction in the aforementioned course. 8.10. Recitals. The Recitals set forth above are incorporated into this Settlement Agreement. IN WITNESS WHEREOF, this Settlement Agreement is executed by the parties as follows: COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA By______________________________ ____________________ County Manager Date PRIME COMMUNICATIONS - POTOMAC, LLC By______________________________ ____________________ Date SBC MEDIA VENTURES, L.P. By: SBC Media Ventures, Inc., General Partner By______________________________ ____________________ Date