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HomeMy WebLinkAboutPackets - Council Packets (914) AGENDA ORO VALLEY TOWN COUNCIL STUDY SESSION JUNE 27, 2007 ORO VALLEY TOWN COUNCIL CHAMBERS 11000 N. LA CANADA DRIVE STUDY SESSION - AT OR AFTER 5:30 p.m. CALL TO ORDER ROLL CALL 1 DISCUSSION REGARDING THE NARANJA TOWN SITE - ELEMENTS FOR PUBLIC OUTREACH AND EDUCATION 2. DISCUSSION REGARDING DRAFT COMCAST LICENSE AGREEMENT AND CABLE TELEVISION REGULATIONS ADJOURNMENT POSTED: 06 20 07 3:30 PM cp The Town of Oro Valley complies with the Americans with Disabilities Act(ADA). If any person with a disability needs any type of accommodation, please notify the Town Clerk's Office at (520)229-4700. TOWN OF ORO VALLEY 1 COUNCIL COMMUNICATION MEETING DATE: JUNE 27,2007 TO: HONORABLE MAYOR & COUNCIL FROM: AINSLEY ANNE REEDER, PARKS AND RECREATION DIRECTOR SUBJECT: STUDY SESSION ON THE ELEMENTS FOR THE NARANJA TOWN SITE PUBLIC EDUCATION PROGRAM AND AN UPDATE ON THE PROCESS BACKGROUND: At the April 9, 2007 Town Council Meeting, the "Building Grassroots Support for Community Projects" diagram was distributed to the Council. (See attachment #1) During that meeting, public relations professionals from Caliber Communications explained that the initial steps for building support for any Town project would include the determination of what the project would be (Step 1) and getting input on the phase priorities (Step 2). The Town is poised to take these beginning steps. On May 16, 2007, Town Council approved the implementation of a community education program to inform the residents regarding the Naranja Town Site and the existing master plan for the property. Funding was approved to hire qualified professionals to assist the Town with this process. On June 1, a "Request for Qualifications" (RFQ) was advertised and submittals are due on June 29, 2007. (See attachment#2) The scope of the RFQ includes: 1. Preparation and implementation of a community education program (August—December 2007) 2. Reports and recommendations to Town Council and/or other deliberative bodies (January 2008) SUMMARY: The following timeline summarizes the process leading to a November 2008 general obligation (GO) bond election. August 2007 Town Council awards contract for a Community Education Program August—December 2007 Community Education Program completed; information gathered from stakeholders and constituents. January 2008 Reports and recommendations from the consultants who completed the Community Education Program provided to Town Council. Consultant shares lessons learned and provides recommendations for the next phase of public education. January—February 2008 Town Council considers and determines the GO bond election question(s) based on information and input gathered from stakeholders and constituents. Council passes a resolution ordering an election to authorize bonded indebtedness. The call for election must state the aggregate amount of the bonds, the maximum rate of interest, the maximum number of years bonds may run, and the purposes for which the money derived from the bonds will be used. TOWN OF ORO VALLEY COUNCIL COMMUNICATION Page 2 of 2 February 2008 Utilizing lessons learned from the 2007 community education program, Council Election Day authorizes a follow-up community education program to raise public awareness g re ardin the GO bond election question; this public outreach and education regarding continues through Election Day. An informational pamphlet is sent to every household that contains a registered September 2008 p p voter. Theam hlet must include a detailed list of information regarding the p p bonds. November 2008 Bond Election November 2008 Council meets to canvass and certify the returns; a certificate is filed with the County Recorder stating the purpose of the election, the total number of votes cast, the number of "for" and "against" votes and stating the indebtedness has been ordered by the Council. Then, Council institutes the secondary tax by ordinance. THE NEXT STEP: Based in the timeline above, the following actions are recommended for June and July of 2007: • Town Council provides input on elements to be included in the Community Education Program. • Staffp roceeds with the selection process for a consultant to implement the Community Education Program. • Town Council to establish a meeting date in July for a follow-up Town Council Study Session to monitor the progress of this project. ATTACHMENTS: 1. Building Grassroots Support for Community Projects 2. Request for Qualifications (RFQ)Naranja Town Site—Public Education Ainsley Anne Reeder, Parks and Recreation Director n st/ Jef ne Watson, Assistant Town Manager (Ili; a-4.44.4v David Andrews, Town Manager • ATTACHMENT 1 6 0 co s a_ (73 i am- -I n .a..., ma V �(a E Mams I -� C i - a E0 H 0. 0 1 M n • o rea it � 4.4 Q u _ a) --10 L.) s co .L.L.i ill ...., ,........ Ov,. 0 LLJLI— Um U Ms CU = u •pow W C N E ,,, cn ..) .,_ C ,_0- . ..a.E O 0 v) ::C2 .i. 0 et = Va3 110 °� y E ani t-1,:,1, , r w 5. _ CC LI W ,; vi E V, e-...' . t-.,-) o ca. c .. cn c r V ca. cu 0... O �] u X y '�` a, , W L- L 0. (/) E c:,-) AS -E t/ ) °c vi ro CU CL it \ � C/') 0 � ='o u ;o •a CD i''.6 _.= N � V) ce cu N ai b.• LI cn --ai = .a.)0 •p Q. E rl CCIV cn 2c, CU ia C-l- ti O Q.) C E Ik: a� a� 0 ATTACHMENT 2 TOWN OF ORO VALLEY REQUEST FOR QUALIFICATIONS (RFQ)-NARANJA TOWN SITE PUBLIC EDUCATION CAMPAIGN PROJECT DESCRIPTION A. General Information The Town of Oro Valley is requesting qualifications from professionals to assist the Town in a community education campaign to inform the residents regarding the proposed 213-acre Naranja Town Site (hereinafter referred to as "NTS")park plans. B. Project Scope 1. The Consultant selected for this project will have responsibility for providing the following services: Item I Preparation and implementation of a community education plan Item II Reports and Recommendations to Town Council and/or other deliberative bodies Item I. Preparation and implementation of a community education plan Previous surveys have indicated that the community has some knowledge of the NTS plans, but that there is not widespread familiarity. At the same time, the various funding methods that have been discussed in public meetings have generated publicity and community dialogue regarding the Town's intentions. Therefore,the Consultant will be responsible for the design and implementation of a community education plan that will reach out to individuals and groups in the community in order to adequately inform them of the NTS plans and possible funding methods. Once the community education plan has been formally adopted, the Consultant will work with Town staff and elected officials to implement the plan. The plan may include, but not be limited to, town-wide and individual group meetings, mailings, preparation of media materials, on-site and off-site activities and events designed to educate the public about the NTS, and other appropriate activities. The Consultant will be expected to meet with Town officials and others interested in the project before and during the preparation and implementation of the community education plan. Item II Reports and Recommendations to Town Council or other deliberative body The Consultant will also provide a series of reports and recommendations to the Town Council or other deliberative body regarding the best approaches and methods for bringing the NTS plans to the citizens of Oro Valley for possible ratification, and/or any changes to the plans and funding methods that might arise based on the feedback obtained during community education process. GENERAL PROVISIONS All work shall be performed by persons employed by or under contract to the Consultant. The Consultant shall prepare minutes of all meetings between the Town and the Consultant for review and approval by the Town. The consultant shall prepare a Master Project Schedule and Monthly Cash Flow Schedule, encompassing the entire project, for review and approval by the Town. The Consultant shall base the initial schedule upon information developed by the Consultant and provided by the Town. The Consultant shall then be responsible to maintain and update the schedule on a monthly basis during the course of the Project. The Consultant shall submit each schedule revision to the Town for review and approval. PROJECT SCHEDULE The Town envisions a two and one-half month time frame for Consultant selection: June 8, 2007 Advertise for RFQ submissions June 15, 2007 Pre-Submittal Conference June 29, 2007 Qualifications Due July 9-13, 2007 Interviews August 1, 2007 Town Council Award of Contract August 10, 2007 Contract Negotiation Complete Aug. 13, 2007 Begin project Short-listed firms shall submit a schedule of work, including time frames for each of the elements listed in this RFQ. The Town would like the public education campaign substantially completed by January of 2008. CONSULTANT SELECTION A. Pre-Submittal Meeting All interested firms shall be invited to a Pre-Submittal Meeting to be held June 15, 2007 at 10:00 a.m. in the Hopi Room, Oro Valley Town Hall, 11000 North La Canada Drive, Oro Valley, Arizona. Questions may be faxed or mailed to the Parks and Recreation Department and must be received seven (7) days in advance of the RFQ due date. Responses, which materially change the scope or intent of this RFQ, will be issued via addendum to all RFQ recipients. Questions may be directed to Ms. Ainsley A. Reeder, Parks and Recreation Director, Town of Oro Valley, 680 West Calle Concordia, Oro Valley, Arizona 85704, Phone 520.229.5051, Facsimile 520.722.2202. B. Submittal Due Date Prospective consultants shall submit seven(7) copies of their submittal in sealed envelopes, clearly marked with the name of the RFQ, due date and time, addressed to Ms. Kathi Cuvelier, Town Clerk, Town of Oro Valley, 11000 North La Canada Drive, Oro Valley, Arizona 85737. Qualifications shall be delivered or received in the Town Clerk's office no later than June 29, 2007, at 2:00 p.m. Mountain Standard Time. No Qualifications will be accepted after this time. Any Request uest for Qualifications received or delivered after the stated deadline will be returned to the applicant unopened. C. Selection Process 1. A"Consultant Selection Committee"will review Qualifications, determine a short list of firms, conduct interviews of short-listed firms, and make a recommendation for award of contract. The final selection of the consultant shall be made by the Oro Valley Town Council. 2. Final selection of the consultants shall be at the discretion of the Town of Oro Valley. The Town reserves the right to reject any or all Qualifications. 3. Following selection by the Town Council,the Town will enter into fee negotiations with the firm. If agreement cannot be reached with the recommended firm, the Town will enter into negotiations with the firm(s) ranked next lower in scoring or reject all Qualifications. Compensation for professional services will be commensurate with the provisions of the Arizona Revised Statutes. D. Submittal Information and Evaluation Criteria Submittal booklets should be bound on the left side and have back covers. The submittal pages shall not exceed 8 1/2 x 11 inches. Each section should be indexed, i.e. Cover Letter, Firm's Capabilities, etc. All pages shall be printed on one side only. For typewritten pages, the minimum font size is 10, and black ink is preferred. Qualifications should be kept concise, and shall not be more than thirty-five (35) pages including front and back covers. 1. INTRODUCTORY LETTER The introductory letter should be approximately one (1)page (8 1/2 x 11). The letter shall be on company letterhead including the company name, address, phone number, and fax number. The letter should be addressed to: Town of Oro Valley, ATTN: Parks and Recreation Department, 11000 North La Canada Drive, Oro Valley, Arizona 85737. The letter shall be signed by an authorized person, and should contain the following: An expression of the firm's interest in being selected for the contract work. A statement confirming the commitment of the key personnel and sub-consultants identified in the submittal to the extent necessary to meet the Town of Oro Valley's quality and schedule expectations. A summary of key points regarding the firm's qualifications. 2. QUALIFICATIONS The following criteria will be used for selection of a consultant firm for this project. Points indicate the relative weight carried by each, with a total maximum of 100 points. The submittal shall include brief narratives describing the firm's qualifications as they relate to the criteria. Qualifications shall address the following six (6) criteria and should be kept concise to simplify review. Short-listed firms will be asked to elaborate on some or all of the following items during the interview. a. Firm's Capabilities • Demonstrated capability on similar/related projects(s). Provide information about projects including size, costs, and when services provided. Provide reference name, address, and phone number. • Management and organization proposed for this project. • Capability of firm to accomplish the project with other ongoing projects and priorities and the capability to complete this project within the set forth deadline. • Prime consultant's office proximity to the site. • Demonstrate capability to work with Town staff, Advisory Boards, governmental units, and other professionals involved. • Demonstrate the firm's fiscal soundness to ensure they can see the project through to completion. Maximum Points: 34 b. Project Team • Qualifications and relevant individual experience. Submit resumes of key personnel who will be assigned to the project, including name, proposed project assignments, firm for whom currently employed, length of employment with firm, education, license or registration, unique qualifications for this project, and previous related experience. • Licensure of firm and sub-consultant members as required per State Statute. • Unique qualifications of key members of the project. • Time commitment of key team members. • Extent of Principal involvement. Maximum Points: 34 c. Project Understanding • Demonstrated knowledge of the work required. • Exhibit complete comprehensible understanding of the function, relationship, size, and significance of the proposed project. Maximum Points: 10 d. Project Approach • Logical course(s) of action to meet stated goal(s) and to accomplish the work. • Understanding of impacts, impediments, and conflicts. • Innovative approached. Maximum Points: 10 e. Schedule • Past history of project completion on schedule. • Internal measures proposed for timely completion. • Person responsible for schedule. Maximum Points: 12 E. Cost of Submittal This solicitation does not commit the Town of Oro Valley to pay any costs incurred in the preparation, presentation, or return of submittals including interview time. The Town of Oro Valley is not required to select any consultant who responds. • SCOPE OF SERVICES TO BE PROVIDED BY THE TOWN OF ORO VALLEY The Town of Oro Valley shall provide the following items and services in support of the Consultant's work: • Any previous surveys as well as past and current plans relating to the NTS or similar projects or activities. • A Project Manager from the Town of Oro Valley will be assigned to work with the Consultant. • Copies of minutes and/or recordings of the proceedings of the Oro Valley Town Council or other deliberative body associated with NTS or similar projects. • Mailing lists that have been used to contact Town residents regarding previous meetings that focused on the NTS • r • ATTACHMENT 1 w C 'v C MI Cri MI vl 03 W E M �. ,. ..,. C C al CD c.) a .('S20 ma ` in SZ. 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CD a- lij id in O ^J110 Cl- NL'' 0 c C 0 LD a) V 0 1111 a) U too N CC tn a) L7 cm ..., cu c . 0 •pm' CL- "t3 Q E rune CU MI...= v Id 0 1.1:2 CO And CO o • 0 a) C E cu a, 0 TOWN OF ORO VALLEY STUDY SESSION Page 1 of 1 COUNCIL COMMUNICATION MEETING DATE: 06/27/07 TO: HONORABLE MAYOR AND COUNCIL FROM: MELINDA GARRAHAN, TOWN ATTORNEY SUBJECT: Review and discussion to renew the Town's license agreement with Comcast. SUMMARY: On or about May 21, 2007, the existing license agreement between the Town and Comcast had expired. However, by operation of Federal law, the old agreement remains in effect until another agreement can be reached pursuant to 47 USC 546. Because the old agreement is outdated, does not reflect the Town's current needs, and is not in complete harmony with current law, the attached proposed code and license agreement are presented for your scrutiny tonight. FISCAL IMPACT: Unknown at this time ATTACHMENTS: ➢ Tab 1: Presentation ➢ Tab 2: Current Town Cable Code ➢ Tab 3: Current Cable Franchise Agreement ➢ Tab 4: Proposed Town Cable Code ➢ Tab 5: Proposed Cable Licensing Agreement ➢ Tab 6: ARS § 9-505 and ARS § 9-506 "Li111/ Kb° Jrs7.h N. 11 drews For Melinda Garrahan To n Attorney Lttaa David Andrews, Town Manager Comcast Cable Franchise June 27, 2007 Mayor and Council Study Session I Regulation Federal Sta 2 Federal Regulation • The Cable Communications Policy Act of 1984 • The Cable Television Consumer Protection and Competition Act of 1992 • The Telecommunications Act of 1996 3 Cable Communications Policy Act of 1984 • Established policies regarding ownership, channel usage, franchise provisions and renewals, subscriber rates and privacy, obscenity and lockboxes, unauthorized reception of services, equal employment opportunity, and pole attachments. • Also defined jurisdictional boundaries among federal, state and local authorities for regulating cable television systems. 4 The Cable Television Consumer Protection and Competition Act of 1992 • Adopting the 1992 Cable Act, Congress stated that it wanted to promote the availability of diverse views and information, to rely on the marketplace to the maximum extent possible to achieve that availability, to ensure cable operators continue to expand their capacity and program offerings, to ensure cable operators do not have undue market power, and to ensure consumer interests are protected in the receipt in of cable service. 5 The Telecommunications Act of 1996 • Adopting the Telecommunications Act of 1996, Congress noted that it wanted to provide a pro-competitive, de-regulatory national policy framework designed to accelerate rapid private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to 110 competition. 6 The Telecommunications Act of 1996 • The FCC has also adopted voluminous regulations implementing all three Telecom Acts and is currently in the process of consideration and possible adoption of regulations that will further limit municipal authority over the cable industry. With Expansion of Cable Communications • Local governments expanded the definition of revenue against which municipal fees would be calculated and began to require cable companies to: — Make numerous PEG channels available. — Build and equip public access television stations. — Provide free cable services to all school and government buildings. 8 State Regulation • Reflecting FCC and Congressional concern that municipalities had overstepped their authority in instituting fees and cable system regulation, in 2005, the Arizona Legislature made a number of changes to the Cable licensing statute. • Not waiting for a federal solution, the Arizona legislature amended the rules and: 9 State Regulation — Drafted a tight and limited definition of "Gross Revenues". This is important because gross revenues is what Federal law measures these fees against ARS § 9-505. — Limited specific terms that a license can contain. ARS § 9-506. — "In Kind" services by cable companies are now deducted from the fees to be collected. ARS § 9-506. PP 10 State Regulation • Essentially, the State Legislature has instructed Arizona Municipalities on what a cable license agreement may and may not contain and strictly limited the fees municipalities may charge for use of their rights-of-way. More Recent State Regulation • HB 2069 has been signed by the Governor and goes into effect this September. • HB 2069 is a cleanup bill that clarifies PEG access and quality. • HB 2069 is not attached to this presentation because the Town is not yet active in this area. 1z Existing Oro Valley regulations • Do not reflect the latest changes in Arizona law. • Give more control than desirable to cable operators in the right-of-way. • Are not integrated with the existing license agreement. 13 Proposed Oro Valley Regulations • Reflect the latest changes in Arizona law. • Retain more control of the right-of-way with the Town. • The proposed license agreement was developed with this proposed code in 110,- mind . _ _ 14 Proposed Oro Valley Regulations • Most importantly, the proposed regulations mirror State law on the definition of "Gross Revenue". — Tab #4 12-17-1 (M) of the proposed code; and. Plir _ Tab #6 ARS § 9-505(6). 15 Proposed Oro Valley Regulations • The expanded Design and construction requirements in the proposed code can be found at Tab #4 Section 12-17-19. Some of the highlights are: — Before construction permits must first be obtained. — New under-grounding requirements. — New notice requirements for Comcast. — New utility collocation requirements (In the 1111Plir' same trench). 16 Proposed Oro Valley Regulations • There are also new technical standards requirements at Tab #4, Section 12-17-20. Existing License Agreement • Does not reflect current Arizona law. • Expired in May of this year. • Remains in effect under Federal law until replaced . , . _„,_ 1s Proposed License Agreement • Is updated to reflect changes in the law. • Integrates with the proposed code. • Helps regulate use of Town right-of way while being flexible enough to allow payment for in kind services if desired. 19 Proposed License Agreement • In the proposed license Comcast agrees to subject itself to the terms of OVTC Article 12-17 as it may be legally amended from time to time. • Leaves open the door for the Town to require unspecified in kind services to be charged against the fee in the future. 20 Proposed License Agreement • The license also directly incorporates the proposed code, therefore, the proposed code updates apply equally to the proposed license. 21 Process • By Resolution , make the proposed code into an official pubic record. By Ordinance, adopt the code by reference. • By Resolution , enter into the License Agreement with Comcast. 22 Attachments • Tab #2 Existing Code • Tab #3 Existing License Agreement • Tab #4 Proposed Code • Tab #5 Proposed License Agreement pr Tab #6 ARS §§ 9-505, 9-506 23 Article 12-17 CABLE FRANCHISE Page 1 of 2 (6 hits) TOC UIIlEII Article 12-17 CABLE FRANCHISE Sections: 12-17-1 General requirements 12-17-1 General requirements A grantee shall conform to the following minimum standards relative to the construction, operation and maintenance of a cable communications system in the town. It is not the intent of this section to prevent any licensee from providing more than the required minimum to meet the standards listed below. A. System capability. The cable communications systems shall be equipped to provide: 1) Two way capability 2) Emergency override of all channels during a declared emergency or disaster. B. Construction method. All basic trunk lines, associated feeder lines and single drops shall be placed by aerial or underground methods similar to the electric and telephone utility lines in the same area. Underground methods are preferred in order to preserve the scenic view shed within the Town. The grantee may, with the consent of the owner, use the poles and other equipment of utilities serving the Town. The cable communications system shall be installed and maintained in accordance with standard good engineering practices and shall conform when applicable with the "National Electrical Safety Code" and the "Federal Communications Rules and Regulation" as they apply. The Grantee shall have at all times up-to-date route maps showing trunk and distribution lines. Grantee shall make all such maps available for review by the appropriate town personnel. C. Service schedule. No grantee shall be required to provide service to any site in his area where such service is available from another grantee. A grantee need not provide service to an area having less density than thirty-five dwelling units per system cable mile. D. Removal of Grantee Property. In the even that grantee property has been installed in a street or other dedicated public right-of-way without complying with the requirements of this chapter, or the license or franchise has been terminated, revoked or expired, or the use of any grantee property is discontinued for any reason grantee shall at its own sole expense on the demand of the town remove promptly from the streets all grantee property other than that which the town may permit to be abandoned in place. Upon such removal of grantee property, grantee shall promptly restore the street or other public places from which the grantee property was removed to a condition as near as possible to its prior condition. Grantee property no longer in service may be left in place with the approval of and in a manner proscribed by the town. Upon such abandonment of grantees property in place, grantee shall deliver to the town an instrument transferring ownership of such abandoned grantee property to the town. Any cost arising from compliance with this provision shall be borne by the grantee. E. Local office. Maintain a local office within ten miles, accessible during all usual business hours and have a listed telephone and operate so that complaints and requests for repairs and adjustments may be received. Grantee shall maintain a written record listing the date of customer complaints, identifying the subscriber, describing the nature of the complaint and when and what action has been taken by the grantee in response thereto; such record shall be kept at grantee's office and shall be available during regular business hours without further notice or demand of the town. The grantee shall notify each subscriber at the time of initial subscription to service of the procedure for reporting and resolving complaints. F. Service provisions. Grantee shall: 1) Render efficient service, make repairs promptly and interrupt service only for good cause and the shortest time possible. 2) Be able to demonstrate by instruments and otherwise to subscribers that a signal of adequate http://www.codepublishing.com/dtSearch/dtisapi6.dll?cmd=getdoc&DocId=98&Index=D%3a%5cProgr... 6/13/2007 Article 12-17 CABLE FRANCHISE Page 2 of 2 strength and quality is being delivered to the subscriber's terminal. G. Local Channel. Each system shall carry as part of the basic service local channels broadcast in its area as required and defined in FCC and other governmental regulations. In this regard, those parts of 47 CFR Part 76 relating to carriage of local channel signals as existing, or as may be amended, shall apply and are incorporated herein by reference. In the event the FCC deletes the above referred requirement or ceases to exercise jurisdiction in this area, said requirement shall continue to apply as they existed on the date immediately proceeding such federal action. H. Interconnection. The system shall be designed and operated so as to facilitate interconnection to any or all other systems within Pima County, The City of Tucson, the Town of Marana or other nearby municipalities, and the town. The cost of interconnection links shall be shared equally by the connecting systems. Grantee shall interconnect such channels and at such time as the town may direct. I. Privacy-monitoring. Grantee shall strictly observe and protect the rights of privacy and property rights of subscribers and users at all times. Individual subscriber preferences of any kinds, viewing habits, political, social or economic philosophies, beliefs, creeds, religions or names, addresses or telephone or E-mail addresses shall not be revealed to any person, governmental unit, police department or investigating agency unless upon the authority of a court of law or upon prior voluntary valid authorization of the subscriber. Such authorization shall not in any event be required as a condition of receiving service. Exclusive of signals useful only for the control or measurement of systems performance, grantees shall not permit the transmission of any signal, including "polling" or monitoring of channel selection from the subscribers premises without first obtaining written permission from the subscriber, J. Service to public buildings. Grantee shall make available, at a cost not to exceed direct cost (Time and Material), a minimum of one or more service outlet(s) to a conveniently accessible point in each public, private and parochial school, non-profit college or university, police station or sub-station, fire station, town hall or other facility or building located within the license area and used for public purposes as may be designated by the town. There shall be a minimum monthly service charge at the above locations. K. Maintenance. The system shall be maintained in accordance with the highest accepted standards of the industry. Each system shall be maintained so as to comply with all applicable technical standards and regulations promulgated by the F.C.C. In this regard, 47 CFR Section 76.601 et. seq as existing or as may be amended, shall apply in full and are incorporated herein by this reference. In the event that the FCC deletes the above referenced technical standards or eases to exercise jurisdiction in this area, such standards shall continue to apply to this chapter as they existed on the date immediately proceeding such federal action. (97-03, Enacted, 02/05/1997) ne dtSearch 7.00(7008) http://www.codepublishing.com/dtSearch/dtisapi6.dll?cmd=getdoc&Docld=98&Index=D%3a%5cProgr... 6/13/2007 INTERJONES CABLE October 1, 1998 _ _ To the Mayor and Town Council of the Town of Oro Valley Ladies and Gentlemen: We are pleased to use this opportunity to let you know about an exciting development for Jones Intercable, Inc., and to submit to you the enclosed documentation in connection with the transaction described in this letter for which we need your consent. The Intercable/Comcast Transaction As you know, Jones Communications of Arizona, Inc. ("JCA"), a subsidiary of Jones Intercable, Inc. ("Intercable"), is the current holder of your community's cable television franchise. Jones International, Ltd. and certain of its affiliates (the "Jones Entities") currently own, directly or indirectly, more than 50% of the Common Stock of Intercable (the "Control Shares") and, consequently, are entitled, in the aggregate, to elect 75% of the Board of Directors of Intercable. On August 12, 1998, the Jones Entities entered into an Agreement with Comcast Corporation ("Comcast") to sell the Control Shares to Comcast (the "Jones/Comcast Agreement"). Comcast is the country's fourth largest cable operator, serving approximately 4.5 million subscribers. Additional information about Comcast is provided in the Form 394 described below. At Closing, Comcast intends to contribute the Control shares to its wholly-owned subsidiary, Comcast Cable Communications, Inc., which is the parent company of Comcast's Cable Division. Intercable is trar fact -,n with Comcast, _id we hope that will agree th � t j___ �� ti ;,::-its :rel, r �.nmunity, T �� ,,,. ;c t.rces and r rience of Co:J_cast '' 1 enf. Js' _.'` y`'; yr i:.: ,.eve tf. y resources necessary to the demands of th- '71f L .?P uirements Under Your JCA's yr), 1:p, ,vides that the t n.le of the Control i -_fires to Comcas �� �;, : �} ,,, r f {� at. :,,-�i Jingly, by this =°. r and the inr',-Yded :escribed below, we are :spectfully requesting consent. For you' <:.E.-_= -.f^',.�"':=e. \ =P. are enclosing a proncl.;z1., form of Resolution you use to grant coi ent, or use as a model. To ; extent that you desire JOIJES INTERCABLE. INC. 9697 EAST MINERAL AVENUE, P.O. BOX 3309. ENGLEWOOD. COLORADO 80155-3309 TEL 303792.31 1 1 Mayor and Town Council of the Town of Oro Valley October 1, 1998 Page 2 to change the form resolution--and we understand and appreciate that you might--we would appreciate being involved in that process to ensure that the final language of the resolution you adopt will meet the requirements of the Jones/Comcast Agreement. Requirements of the Federal Communications Commission. To the extent that a franchise requires a community's consent to the transfer of control of a franchisee, the Federal Communications Commission has promulgated rules which permit the transferor and transferee to file with the local franchising authority a completed Form 394, which is titled "Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise." The Form 394 was prescribed by the FCC, and although it is not lengthy itself, it requires that numerous exhibits be attached to it, and that we file with you one original form with exhibits, plus two full copies of the form and its exhibits. As a result, the package you are receiving from us is unusually unwieldy, and we apologize for that--if there had been a way to have reduced the bulk, we would have done so. As you will see, the Exhibits to the Form 394 include a copy of the Jones/Comcast Agreement, financial statements of Comcast, and a description of Comcast's experience in the telecommunications industry. If after reviewing the Form and its Exhibits, you would like additional information about Comcast or the transaction, please let us know. The Form and the FCC rules provide that if your community does not act upon the Application within 120 days after receiving it, the request for consent will be deemed granted. In any event, we hope that your calendar would permit you to act on the resolution within the next 45 to 60 days. We hope you will find the prospect of the transactions described in this letter as promising as we do. Please keep in mind that even after the transaction is completed, the franchise will continue to be held by JCA, and that JCA will continue to be bound by its terms. The only change will be that Intercable will have a new controlling shareholder. We look forward to our continuing relationship and continued service of the residents of your community. We would be happy to meet with you to discuss the proposed transfer in more detail and to answer any questions you may have. You should also feel free to contact me at (303) 792-3111 or Kenna Smith, our local general manager, at (520) 744-2653, as well as Sheila Willard of Comcast, at (215) 981-7619. Very truly yours, Katherine A. LeVoy Counsel (38169/kal) RESOLUTION NO. (R) 97- 25 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF ORO VALLEY, ARIZONA, APPROVING AND AUTHORIZING THE ADOPTION OF A FRANCHISE AGREEMENT WITH JONES COMMUNICATIONS OF ARIZONA AND THE TOWN OF ORO VALLEY WHEREAS, the Town of Oro Valley has determined that the operation of "Community Antenna television Systems" (CATV systems) are in the public interest and are necessary to improve and promote the public welfare of the citizens; and WHEREAS, the adoption of the attached franchise agreement with Jones Communications of Arizona is found to be in the best interests of the citizens of Oro Valley; and WHEREAS, the attached agreement is found to be in compliance with current Federal Law; NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND TOWN COUNCIL OF THE TOWN OF ORO VALLEY, ARIZONA AS FOLLOWS: 1 . That the attached franchise agreement with Jones Communications of Arizona be adopted in its entirety, finding this document to be necessary for the continued improvement of the public health, safety and welfare. 2) That if any portion of these policies is found to not be enforceable by a court of competent jurisdiction, that portion shall be declared severable, and the remainder of the policies will remain in full force and effect. PASSED AND ADOPTED by the Mayor and Town Council of the Town of Oro Valley, Arizona this 02. I day of , 1997. TOWN OF ORO VALLEY, ARIZONA Cheryl Skaiky, Mayor ATTEST: /4"- A . 0.z4z -e-Q_.: Kathry E. Cuvelier, Town Clerk APPROVEDASTO FSIM.- / • Tobin Sidles, Town Attorney FRANCHISE AGREEMENT 1. Definitions: a. "Basic Service" means those audio and visual signals carried on the service tier of the CATV System which includes local off-air television signals and any public, educational, or governmental channels. Basic Service shall not include any other tier of service or any premium or pay-per-view channels or services. b. "Cable Act" means the Cable Communications Policy Act of 1984, P.L. 98-549, 47 U.S.C. §521 Supp., as it may be amended or superseded, including the Cable Television Consumer Protection and Competition Act of 1992, P.L. 102-385 and the 1996 Telecommunications Act. c. "Town" mans the Town of Oro Valley, Arizona. d. "Community Antenna Television System" ("CATV System") means a system of antennas, cables, wires, lines, towers, microwaves, waveguides, laser beams or any other conductors, converters, equipment or facilities designed, constructed, or operated for the purpose of producing, receiving, amplifying, modifying and distributing audio, video, and other forms of communication or electronic signals to and from residential and business subscribers and locations within the jurisdictional limits of the Town. e. "Council" means the governing body of the Town. f. "Franchise" means the authorization granted hereunder of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a CATV System within the jurisdictional limits of the Town, according to the Town's adopted Telecommunications Ordinance. g. "Grantee" means Jones Communications of Arizona, Inc., a Colorado corporation, and its permitted successors and assigns. h. "Gross Receipts" means any and all compensation received by Grantee from residential subscribers to the CATV System who are located within the jurisdictional limits of the Town. In computing said sum, however, franchise fees shall not be included and any sales, service, rent, occupational or other excise tax or fee shall not be included to the extent such taxes or fees are charged separately in addition to the regular monthly service charge and are remitted by Grantee to the taxing authority. "Streets and dedicated easements" means the public streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, alleys, all other public rights-of-way and easements, and the public grounds, places or water within the Town. j. "Subscriber" means a purchaser of any service delivered over the CATV System. 2. Granting of Franchise. The Town hereby grants to Grantee a non-exclusive Franchise for the use of the streets and dedicated easements within 2 the Town for the construction, operation and maintenance of the CATV System, upon the terms and conditions set forth herein. 3. Term. The Franchise shall be for a term of ten (10) years, commencing on the effective date of this Ordinance. Subsequent renewals shall be pursuant to the renewal provisions of the Cable Act as it shall provide. 4. Use of the Streets and Dedicated Easements. a. Grantee shall have the right to use the streets and dedicated easements of the Town for construction, operation and maintenance of the CATV System. b. Grantee, at its own cost, shall have the right pursuant to thep rovisions of this Ordinance to construct, erect, suspend, install, renew, maintain and otherwise own and operate throughout the streets and dedicated easements of the Town, as now laid out or dedicated and all extensions thereof and additions thereto in the Town, the CATV System, either separately or in conjunction with any putility operating within the Town. The Franchise shall further include the right, privilege,rivile e, easement and authority to construct, erect, suspended, install, 9 lay, renew, repair, maintain and operate such poles, wires, cables, underground conduits, manholes, ducts, trenches, fixtures, appliances and appurtenances for the purpose of distribution to inhabitants within the jurisdictional limits of the Town. Without limiting the generality of the foregoing, the Franchise shall and does hereby include the right to repair, replace and enlarge and extend the CATV System, provided that Grantee shall utilize the facilities of utilities whenever practicable. 3 The Grantee shall notify the Town of any planned construction projects, other than routine cable installation, and furnish the Town with a summary of the planned construction, including maps and drawings. c. Grantee may, at no cost to the Town, erect, install and maintain on any part of the CATV System such reasonable devices to apprise or warn persons using the streets and dedicated easements of the Town of the existence of such CATV System. Upon at least sixty (60) days' prior notice from the Town, Grantee agrees to relocate the CATV System at its own expense in the event that the Town or other public entities should improve or widen streets. d. Grantee shall have the right to remove, trim, cut and keep clear of the CAN System, the trees in and along the streets and dedicated easements of the Town, provided that in the exercise of such right, the Grantee shall not cut, remove, trim or otherwise injure such trees to any greater extent than is necessary for the installation, maintenance and use of the CATV System; provided, however, that the Grantee will notify the Town of planned tree trimming priorbeginning to be innin such trimming. The Grantee must have the approval of the Town before it removes any tree. e. Grantee in the exercise of any right granted to it by the Franchise shall, at no cost to the Town, promptly repair or replace any facility or service of the Town which Grantee damages, including but not limited to any street or dedicated easement or sewer, electric facility, water main, fire alarm, police communication or traffic control. 4 f. Within thirty (30) days after the effective date of this Ordinance, Grantee shall provide to the Town a performance bond to guarantee the Grantee's faithful performance of its obligation under this Agreement. This performance bond shall be in a principal sum of Fifty Thousand Dollars ($50,000). 5. Maintenance of the System. a. Grantee shall at all times employ ordinary care in the maintenance and operation of the CATV System so as not to endanger the life, healthor property of any citizen of the Town or the property of the Town. b. Grantee shall install and maintain the CATV System so as not to interfere with the equipment of any utility of the Town or any other entity lawfully and rightfully usingthe streets and dedicated easements of the Town. Iawf y g Y c. The CATV System shall at all times be kept in good repair and in a safe and acceptable condition. d. All conductors, cables, towers, poles and other components of the CAW System shall be located and constructed by Grantee so as to provide minimum interference with access by adjoining property owners to the streets and dedicated easements. No pole or other fixtures of Grantee placed in the streets and dedicated easements shall interfere with the usual travel on such public way. e. The Town hereby expressly acknowledges and agrees that Grantee will have the right allowed by law to regularly audit the improper usage of "tappingon" the CATV System. The Town agrees to assist 5 Grantee by protecting Grantee's rights so far as allowed by law to audit its feeder lines and connection lines to prevent improper usage of the CATV System. 6. Service. a. Grantee shall provide to all residents within the current Town limits of Oro Valley cable television service so long as there are at least fifty (50) homes per underground mile of cable. Newly annexed areas of the Town shall also be built out subject to a minimum density requirement of fifty (50) homes per underground mile. The system as constructed will have the capacity to offer a minimum of sixty-two (62) channels. b. Grantee shall provide Basic Service and one free outlet to each of the following public facilities located within one hundred (100) feet of existing service lines of the Grantee and within the jurisdictional limits of the Town: Town Hall, Public Works Facility, Police Department, water utilities, public libraries, and public schools. No monthly service fee shall be charged for any such outlet. Grantee shall provide Basic Service to new construction hereafter for similar public facilities; provided they are within one hundred (100) feet of the existing service lines of Grantee. 7. Franchise Fee. a. Grantee shall pay to the Town, within forty-five (45) days after each calendar quarter ends, an amount equal to five (5%) percent of the Gross Receipts for such calendar quarter. There will beaten (10%) percent Penalty on any unpaid balance for late payments after the forty-five (45) day period. 6 b. Each year during which the Franchise is in force, Grantee shall file with the Town Finance Director no later than ninety (90) days after the end of each calendar quarter a financial statement showing total Gross Receipts derived from the CATV System during such quarter. The Town shall have the right, at its expense, to audit the books of the Grantee to ensure proper payment of the fees payable hereunder. 8. Insurance/Indemnity. a. From and after the effective date of this Ordinance, Grantee shall maintain in full force and effect at all times for the full term of the Franchise, at the expense of the Grantee, a comprehensive general liability insurancep olicy, written by a company authorized to do business in the state of Arizona, protecting against liability for loss or bodily injury and property damage occasioned by the installation, removal, maintenance or operation of the CATV System by Grantee in the following minimum amounts: One Million Dollars ($1 ,000,000) for property damage in any one occurrence. One Million Dollars ($1,000,000) per person, One Million Dollars ($1,000,000) per occurrence, for bodily injuries. Worker's compensation coverage in accordance with Arizona law. The Town shall be notified at least thirty (30) days prior to the expiration or cancellation of such insurance policy or policies. 7 b. Grantee hereby agrees to indemnify and hold the Town harmless from any claims or damages resulting from the actions of Grantee in constructing, operating or maintaining the CATV System. 9. Pledge, Assignment of Assets. a. Grantee may mortgage or pledge the Franchise for financing purposes. Such mortgage or pledge should not operate to circumvent the provision of subsection b of this section. b. Grantee may not assign or transfer control of the Franchise without first obtaining the expressed written consent of the Town Council. 10. Cancellation and Expiration. a. Unless earlier terminated in accordance with this Ordinance, the Franchise shall expire ten (10) years after the effective date of this Ordinance. b. The Town shall have the right to cancel and terminate the Franchise if Grantee fails to comply in any material respect with the material provisions of this Ordinance. Cancellation shall be according to the Town's Telecommunications Ordinance as listed below: 1. The Town Council shall notify Grantee in writing of the alleged failure to comply and shall give Grantee thirty (30) days to correct such failure, or to present facts to refute the alleged failure or persistent failure to comply with this Ordinance. 8 2. At the end of said thirty (30) days, as listed above, the Town Council shall hold a public hearing within another thirty (30) da s to decide if sufficient grounds exist to repeal this Y Ordinance and terminate the Franchise. Grantee may appear at said hearing and present such testimony and evidence as it deems appropriate with respect to the alleged failure to comply. After such hearing the Town Council may take such action as it deems appropriate ro riate to enforce the terms and conditions of this Ordinance, or it may repeal this Ordinance thereby terminating the Franchise, and p the decision of the Council shall be binding in all respects upon Grantee. c. Upon expiration or termination of the Franchise, Grantee agrees to remove the CATV System from the streets and dedicated easements of the Town. 11 . Enforcement of Terms and Conditions. Either the Town or Grantee mayinstitute proceedings in a court of competent jurisdiction to enforce the terms and conditions of this Ordinance, in which event the prevailing party shallpermitted be to recover from the adverse party all reasonable attorneys' fees and costs necessitated by the bringing of such action. 12. Notices, Miscellaneous. a. Every notice served upon the Town shall be delivered or sent by certified mail, return receipt requested, to: 9 Town Clerk 1100 N. La Canada Town of Oro Valley, Arizona 85737 and every notice served upon Grantee shall be delivered or sent by certified mail, return receipt requested, to: Jones Communications of Arizona, Inc. 8251 N Cortaro Road Tucson, Arizona 85743-9599 Attn: General Manager Jones Communications of Arizona, Inc. P.O. Box 3309 9697 East Mineral Avenue Englewood, Colorado 80155-3309 Attn: Legal Department b. All provisions of this Ordinance shall apply to the respective parties, their successors and assigns. c. The rights granted by this Ordinance are subject to all franchisespermits and heretofore granted by the Town Board of the Town to other or public publicutility service operations to use the streets and dedicated easements of the Town. This Ordinance and the Franchise granted herein are not intended d to abridge the exercise of the police power heretofore or hereafter granted to the Town bythe State of Arizona. The grant of the Franchise is subject to all ordinances and resolutions of the Council as the same now exist and the lawful exercise of any power granted to the Town. 10 I d. If any particular section of this Ordinance shall be held invalid, the remaining provisions and their applications shall not be affected thereby. 13. Effective Date. This Ordinance shall take effect on the date adopted by the Town Council. APPROVED by the Town Council of the Town of Oro Valley, Arizona, on the 21ST day of MAY , 1997. AYE: 5 NAY: 0 ABSENT: 0 azi.z4AL Town I e rk of the Town of Oro Valley, Pima County, Arizona APPROVED by the Mayor of the Town of Oro Valley, Pima County, Arizona, this 21ST day of MAY , 1997. i ° „, , . Mayor of e Town of FIS Valley, Pima County, Arizona ATTEST: - C- -z-Li<, j Town C erk of the Town of Oro Valley, 11 Pima County, Arizona APPROVED AS TO FORM: A. .;"/ ._ . /i Town Attorney, Town of Oro Valley, Pima County, Arizona 12 Article 12-17 12-17-1 Intent 12-17-2 Definitions 12-17-3 License to Install and Operate 12-17-4 License Required 12-17-5 Term of the License 12-17-6 License Territory 12-17-7 Federal, State and Town Jurisdiction 12-17-8 License Non-Transferable 12-17-9 Purchase by Town upon Expiration or Revocation 12-17-10 Geographical Coverage 12-17-11 Nonexclusive License 12-17-12 Multiple Licenses 12-17-13 Initial License Applications 12-17-14 Consideration of Initial Applications 12-17-15 License Renewal 12-17-16 Consumer Protection and Service Standards 12-17-17 Rate Regulation 12-17-18 License Fee 12-17-19 Design and Construction Requirements 12-17-20 Technical Standards 12-17-21 Trimming of Trees 12-17-22 Use of Grantee Facilities 12-17-23 Hold Harmless 12-17-24 Insurance 12-17-25 Records Required and Grantor's Right to Inspect 12-17-26 Annual Reports 12-17-27 License Violation 12-17-28 Force Majeure: Grantee's Inability to Perform 12-17-29 Abandonment or Removal of License Property 12-17-30 Extended Operation and Continuity of Services 12-17-31 Receivership and Foreclosure 12-17-32 Rights Reserved to Grantor 12-17-33 Rights of Individuals 12-17-34 Conflicts 12-17-35 Severability F\Franchise Ageements\Comcast Cable License Ag ement\current drafis%INAL TOV Cable Ordinance 042507.dcx Section 12-17-1 Intent A. The Town of Oro Valley, pursuant to applicable federal and state law, is authorized to grant one or more nonexclusive Licenses to construct, operate, maintain and reconstruct Cable Television Systems within the Town limits. B. The Town Council finds that the development of Cable Television Systems has the potential of having great benefit and impact upon the residents of Oro Valley. Because of the complex and rapidly changing technology associated with cable television, the Town Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the Town or such Persons as the Town shall designate. It is the intent of this article and subsequent amendments to provide for and specify the means to attain the best possible cable television service to the public and any Licenses issued pursuant to this article shall be deemed to include this finding as an integral part thereof. Section 12-17-2 Definitions For the purpose of this article, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. All capitalized terms used in the definition of any other term shall have their meaning as otherwise defined in this Section 12-17-2. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. A. "Basic Cable Service" means any service tier which includes the retransmission of local television broadcast signals. B. "Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521-611 (1982 & Supp. V 1987), as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and as may, from time to time, be amended. C. "Cable Service" means: 1) The one-way transmission to Subscribers of video programming or other programming service; and 2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. D. "Cable Television System," "System" or "Cable System" means any facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service that includes video F\Franchise Agreements\Comcast Cable License Agreement\current dralis\FINAL 7()V Cable Ordinance 042507.doi 2 programming and that is provided to multiple subscribers within a community. Cable television system does not include: 1) A facility that serves fewer than fifty subscribers. 2) A facility that serves subscribers without using any public street, road or alley. 3) A facility that serves only to retransmit the television signals of one or more television broadcast stations. 4) A facility of a common carrier that is subject, in whole or in part, to 47 United States Code sections 201 through 276, except that the facility is considered a cable television system, other than for purposes of 47 United States Code section 541(c), to the extent the facility is used in the transmission of video programming directly to subscribers, unless the extent of the use is solely to provide interactive on-demand services. 5) An open video system that complies with 47 United States Code Section 573. 6) A facility of an electric utility that is used solely for operating its electric utility system. E. "Channel" or "Cable Channel" means a portion of the electromagnetic frequency spectrum that is used in a Cable System and which is capable of delivering a television Channel as defined by the Federal Communications Commission. F. "Council" means the Town Council of the Town of Oro Valley. G. "FCC" means the Federal Communications Commission, its designated representative or its lawful successor. H. "License" means an initial authorization, or renewal thereof, issued by the Town, whether such authorization is designated as a License, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a Cable System. "License Agreement" means a License granted pursuant to this article, containing the specific provisions of the License granted, including references, specifications, requirements and other related matters. J. "License Fee" means any tax, fee or assessment of any kind imposed by the Town or other governmental entity on a Grantee or cable Subscriber, or both, solely because of their status as such. The term "License Fee" does not include: 1) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not F:\Franchise Agreement.\Comcast Cable License Agreement\cw-rent dratts\FINAL TOV Cable Ordinance 042507.doc 3 including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable Subscribers); 2) capital costs that are required by the License Agreement to be incurred by the cable operator for public, educational, or Governmental Access Facilities; 3) requirements or charges incidental to the awarding or enforcing of the License, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or 4) any fee imposed under Title 17 of the United States Code. K. "Grantee" means any Person receiving a License pursuant to this article and its agents, employees, officers, designees, or any lawful successor, transferee or assignee. L. "Grantor" or "Town" means the Town of Oro Valley as represented by the Council or any delegate acting within the scope of its jurisdiction. M. "Gross Revenues" means all cash, credits, property of any kind or nature, or other consideration, less related bad debt not to exceed one and one-half per cent annually, that is received directly or indirectly by the cable operator, its affiliates, subsidiaries or parent or any person, firm or corporation in which the cable operator has a financial interest or that has a financial interest in the cable operator and that is derived from the cable operator's operation of its cable system to provide cable service in the area of jurisdiction. Gross revenues include all revenue from charges for cable service to subscribers and all charges for installation, removal, connection or reinstatement of equipment necessary for a subscriber to receive cable service, and any other receipts from subscribers derived from operating the cable system to provide cable service, including receipts from forfeited deposits, sale or rental of equipment to provide cable service, late charges, interest and sale of program guides. Gross revenues also include all income the cable operator receives from the lease of its facilities located in the public streets, roads and alleys, unless services that the lessee provides over the leased facilities are subject to a transaction privilege tax of the licensing authority. Gross revenues do not include revenues from commercial advertising on the cable system, the use or lease of studio facilities of the cable system, the use or lease of leased access channels or bandwidth, the production of video programming by the cable operator, the sale, exchange, use or cablecast of any programming by the cable operator in the area of jurisdiction, sales to the cable operator's subscribers by programmers of home shopping services, reimbursements paid by programmers for launch fees or marketing expense, license fees, taxes or other fees or charges that the cable operator collects and pays to any governmental authority, any increase in the value of any stock, security or asset, or any dividends or other distributions made in respect of any stock or securities. N. "Initial Service Area" means the area of the Town that will receive Cable Service initially, as set forth in any License Agreement. F:\I=ranchise Agreements\Comcast Cable License Agreement\current dratts\FINAL TOV Cable Ordinance 042507 dm. 4 O. "Installation" means the connection of the System to Subscribers' terminals, and the provision of Cable Service. P. "Normal Business Hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "Normal Business Hours" must include some evening hours at least one (1) night per week and/or some weekend hours. Q. "Normal Operating Conditions" means those service conditions that are within the control of the Grantee. Those conditions that are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions, and significant legislative or regulatory requirements. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events, regular peak or seasonal demand periods, and maintenance or upgrade of the System. R. "Person" means any natural person or any association, firm, individual, partnership,joint stock company, joint venture, trust, corporation, limited liability company, syndicate, business or other legally recognized entity, private or public, whether for-profit or not- for-profit. S. "Public, Educational or Government Access Facilities" or "PEG Access Facilities" means: 1) Channel capacity designated for public, educational, or governmental use; and 2) Facilities and equipment for the use of such Channel capacity. T. "Section" means any section, subsection, or provision of this article. U. "Service Area" or "License Area" means the entire geographic area within the Town as it is now constituted or may in the future be constituted, unless otherwise specified in the License Agreement. V. "Service Interruption" means the loss of picture or sound on one or more Cable Channels affecting at least ten percent (10%) of the Town's subscribers on the System. W. "State" means the State of Arizona. X. "Street" means each of the following that have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the Town limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the Grantor shall permit to be included within the definition of Street from time to time. F.\Franchise Agreernent.\Cmca.t Cable I_Icen.e Agreement\current drafl.\FINAI_TOV Cable Ordmanee 1)42507 dm 5 Y. "Subscriber" means any Person who or which lawfully elects to subscribe to, for any purpose, Cable Service provided by the Grantee by means of or in connection with the Cable System and who pays the charges therefore, except such Persons or entities authorized to receive Cable Service without charge as described in the License Agreement. Section 12-17-3 License to Install and Operate A License granted by the Town under the provisions of this article shall encompass the following purposes: A. To engage in the business of providing Cable Service, and such other services as may be permitted by the License Agreement. B. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of a Cable System in, on, over, under, upon, along and across Streets or other public places within the designated Service Area. C. To maintain and operate said License properties for the origination, reception, transmission, amplification, and distribution of television and radio signals for the delivery of Cable Services and any other services permitted by the License Agreement. D. To set forth the obligations of a Grantee under the License Agreement. Section 12-17-4 License Required It shall be unlawful for any Person to construct, install or operate a Cable Television System in the Town within any Street without a properly granted License awarded pursuant to the provisions of this article. Section 12-17-5 Term of the License A. A License granted hereunder shall be for a term established in the License Agreement, commencing with the Grantor's adoption of an ordinance or resolution authorizing the License. B. A License granted hereunder may be renewed upon application by the Grantee pursuant to the provisions of applicable state and federal law and of this article. Section 12-17-6 License Territory Any License shall be valid within all the territorial limits of the Town, and within any area added to the Town during the term of the License, unless otherwise specified in the License Agreement. F\FranchIse Agreements\Comcast Cable License Ag eemenbeurrent dratts\F1NAL WV Cable Ordinance(142507.dix 6 Section 12-17-7 Federal, State and Town Jurisdiction A. This article shall be construed in a manner consistent with all applicable federal and state laws. B. In the event that the state or federal government discontinues preemption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, Grantor may, if it so elects, adopt rules and regulations in these areas to the extent permitted by law. C. This article shall apply to all Licenses granted or renewed after the effective date of this article. It shall further apply to the extent permitted by applicable federal or state law to all existing Licenses granted prior to the effective date of this article. D. Grantee's rights are subject to the police powers of the Town to adopt and enforce ordinances necessary to the health, safety and welfare of the public. Grantee shall comply with all applicable general laws and ordinances enacted by the Town pursuant to that power. E. Grantee shall not be relieved of its obligation to comply with any of the provisions of this article or any License granted pursuant to this article by reason of any failure of the Town to enforce prompt compliance. F. This article and any License granted pursuant to this article shall be construed and enforced in accordance with the substantive laws of the State of Arizona. Section 12-17-8 License Non-Transferable A. Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, consolidation or otherwise, the License and/or Cable System or any of the rights or privileges granted by the License, without the prior consent of the Council which consent shall not be unreasonably denied or delayed and shall be denied only upon a good faith finding by the Town that the proposed transferee lacks the legal, technical or financial qualifications to perform its obligations under the License Agreement. Any attempt to sell, transfer, lease, assign or otherwise dispose of the License and/or Cable System without the consent of the Council shall be null and void. This provision shall not apply to sales of property or equipment in the normal course of business. No consent from the Town shall be required for a transfer in trust, mortgage, or other instrument of hypothecation, in whole or in part, to secure an indebtedness, or for a pro forma transfer to a corporation, partnership or other entity controlling, controlled by or under common control with Grantee. B. The following events shall be deemed to be a sale, assignment or other transfer of the License and/or Cable System requiring compliance with this Section: F:\Franchise Agreement.\Comca.t Cable license Agreement\current dratt.\FINAL TOV C'able Ordinance 042507.dco 7 1) The sale, assignment or other transfer of all or a majority of Grantees assets; 2) The sale, assignment or other transfer of capital stock or partnership, membership or other equity interests in Grantee by one or more of its existing shareholders, partners, members or other equity owners so as to create a new controlling interest in Grantee; 3) The issuance of additional capital stock or partnership, membership or other equity interest by Grantee so as to create a new controlling interest in Grantee; 4) The entry by the Grantee into an agreement with respect to the management or operation of the Grantee and/or the System; and 5) The term "Controlling Interest" as used herein means majority equity ownership of the Grantee. C. Except as provided below, no Grantee may sell or otherwise transfer ownership in a License and/or Cable System within a thirty-six (36) month period following either the acquisition or initial construction of said System by Grantee. In the case of a sale of multiple Systems, if the terms of the sale require the buyer to subsequently transfer ownership of one or more such Systems to one or more third parties, such transfer shall be considered a part of the initial transaction. The above-described thirty-six (36) month holding period shall not apply to: 1) Any transfer of ownership interest in any License and/or Cable System which is not subject to federal income tax liability; 2) Any sale required by operation of any law or any act of any agency, any state or political subdivision or the Town; or 3) Any sale, assignment, or transfer, to one or more purchasers, assignees, or transferees controlled by, controlling, or under common control with, the seller, assignor, or transferor. D. In the case of any sale or transfer of ownership of any License and/or Cable System, the Town shall have one hundred twenty (120) days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with Federal Communications Commission Regulations, the requirements of this article and such other reasonable information as the Town, in its sole discretion, may request. If the Town fails to render a final decision on the request within one hundred twenty (120) days from receipt by the Town of all required information, such request shall be deemed granted unless the requesting party and the Town agree to an extension of time. F\Franchise Agreements\Comcast Cable License Agreement\current dralis\F1NA1.TOV Cahle Ordinance 042507 doe 8 E. Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the License property of the Grantee or upon the termination of any lease or interest covering all or a substantial part of said License property. Such notification shall be considered by Grantor as notice that a change in control of ownership of the License has taken place and the provisions under this Section governing the consent of Grantor to such change in control of ownership shall apply. F. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, Grantor may inquire into the qualifications of the prospective transferee or controlling party, and Grantee shall assist Grantor in any such inquiry. In seeking Grantor's consent to any change of ownership or control, Grantee shall have the responsibility of insuring that the transferee completes an application in form and substance reasonably satisfactory to Grantor, which application shall include the information required under state and federal law as well as under Subsections (A) through (H) of Section 12-17-13 of this article. An application, acceptable to the Town, shall be submitted to Grantor not less than ninety (90) days prior to the date of transfer. The transferee shall be required to establish that it possesses the legal, technical and financial qualifications to operate and maintain the System and comply with all License requirements for the remainder of the term of the License. If, after considering the legal, financial, character and technical qualities of the applicant and determining that they are satisfactory, the Grantor finds that such transfer is acceptable, the Grantor shall transfer and assign the rights and obligations of such License. The consent of the Grantor to such transfer shall not be unreasonably denied. G. Any financial institution having a pledge of the Grantee or its assets for the advancement of money for the construction and/or operation of the License shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor shall take control of and operate the Cable Television System, in the event of a Grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation within thirty (30) days of assuming such control that will insure continued service and compliance with all License requirements during the term the financial institution exercises control over the System. The financial institution shall not exercise control over the System for a period exceeding one (1) year unless extended by the Grantor in its discretion and during said period of time it shall have the right to petition the Grantor to transfer the License to another Grantee. Section 12-17-9 Purchase by Town Upon Expiration or Revocation A. If, subject to the provisions of the Cable Act, a renewal of a License is denied, the Town may purchase to the extent permitted by Federal law and upon payment to the Grantee of the Cable Systems' fair market value as a going concern, exclusive of any value allocated to the License itself, that portion of Grantee's Cable System serving the Town of Oro Valley. F\Franchise Agreements\Comca.Cable License Agreement\current drafts\F'NAL TOV Cable Ordinance 042507 dot 9 B. Subject to the Cable Act, if a License is revoked for cause, the Town may, to the extent permitted by Federal law, acquire that portion of the Cable System serving the Town of Oro Valley upon payment of an equitable price. Section 12-17-10 Geographical Coverage A. Grantee shall design, construct and maintain the Cable Television System to have the capability to pass every dwelling unit in the Service Area, subject to any line extension requirements of the License Agreement. B. After service has been established by activating trunk and/or distribution cables for any part of the Service Area, Grantee shall provide Cable Service to any requesting Subscriber within that Service Area within thirty (30) days from the date of request, provided that the Grantee is able to secure all rights-of-way necessary to extend service to such Subscriber within such thirty (30) day period on reasonable terms and conditions. Section 12-17-11 Nonexclusive License Any License granted shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional Licenses for a Cable Television System or any component thereof, as it deems appropriate, subject to applicable state and federal law, provided, however, that no License shall be granted on terms materially less burdensome or more favorable than any other License granted hereunder. Section 12-17-12 Multiple Licenses A. Grantor may grant one or more Licenses for a Service Area. Grantor may, in its sole discretion, limit the number of Licenses granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations; such as: 1) The capacity of the public rights-of-way to accommodate multiple coaxial cables in addition to the cables, conduits and pipes of the utility Systems, such as electrical power, telephone, gas and sewerage. 2) The impact on the community of having multiple Licenses. 3) The disadvantages that may result from Cable System competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations of the rights-of-way. 4) The financial capabilities of the applicant and its guaranteed commitment to make necessary investment to erect, maintain and operate the proposed System for the duration of the License term. B. Each Grantee awarded a License to serve the entire Town shall offer service to all residences in the Town, in accordance with construction and service schedules mutually agreed upon between Grantor and Grantee, and consistent with applicable law. F:\Franchise Ain eements\Comcast Cable license Agreemenikurrent drafts\FINAL TOV C able Ordinance 042507.d(K 10 C. Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two (2) Cable Systems in accordance with the provisions of Section 12-17-19(D). D. Grantor may require that any new Grantee be responsible for its own underground trenching and the costs associated therewith, if, in Grantor's opinion, the rights-of-way in any particular area cannot feasibly and reasonably accommodate additional cables. E. Any additional License granted by the Town to provide Cable Service in a part of the Town in which a License has already been granted and where an existing Grantee is providing service shall require the new Grantee to provide service throughout its Service Area within a reasonable time and in a sequence which does not discriminate against lower income residents. Section 12-17-13 Initial License Applications Any Person desiring an initial License for a Cable Television System shall file an application with the Town. A reasonable nonrefundable application fee established by the Town shall accompany the application. Such application fee shall not be deemed to be "License Fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. § 542), and such payments shall not be deemed to be (i) "payments in kind" or any involuntary payments chargeable against the compensation to be paid to the Town by Grantee pursuant to Section 12-17-18 hereof and applicable provisions of a License Agreement, or (ii)part of the compensation to be paid to the Town by Grantee pursuant to Section 12- 17-18 hereof and applicable provisions of a License Agreement. An application for an initial License for a Cable Television System shall contain, where applicable: A. A Statement as to the proposed License and Service Area. B. Resume of prior history of applicant, including the legal, technical and financial expertise of applicant in the cable television field. C. List of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each shareholder, if a corporation. D. List of officers, directors and managing employees of applicant, together with a description of the background of each such Person. E. The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant. F. A current financial Statement of applicant verified by a CPA audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the Town. F\Franchise Agreements\Comcast Carle License Agreement\current drafts\F1NA1,TOV C'ahle Ordinance()42507.dcx 11 G. Proposed construction and service schedule. H. Any additional information that the Town deems applicable. Section 12-17-14 Consideration of Initial Applications A. Upon receipt of any application for an initial License, the Town Manager shall prepare a report and make his recommendations respecting such application to the Town Council. B. A public hearing shall be set prior to any initial License grant, at a time and date approved by the Council. Within thirty (30) days after the close of the hearing, the Council shall make a decision based upon the evidence received at the hearing as to whether or not the License(s) should be granted, and, if granted, subject to what conditions. The Council may grant one (1) or more initial Licenses, or may decline to grant any License. Section 12-17-15 License Renewal License renewals shall be in accordance with applicable law including, but not necessarily limited to the Cable Communications Policy Act of 1984, as amended. Grantor and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the License. Section 12-17-16 Consumer Protection and Service Standards A. Except as otherwise provided in the License Agreement, Grantee shall maintain a local office or offices to provide the necessary facilities, equipment and personnel to comply with the following consumer protection standards under Normal Operating Conditions: 1) Cable System office hours and telephone availability: a) Grantee will maintain a local, toll-free or collect call telephone access line which will be available to its Subscribers twenty-four (24) hours a day, seven (7) days a week. i) Trained Grantee representatives will be available to respond to customer telephone inquiries during Normal Business Hours. ii) After Normal Business Hours, the access line may be answered by a service or an automated response System, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Grantee representative on the next business day. F\Franchise Agreements\Comcast Cable License Agreement\current dafts\FINAL TOV('able O dinance(142507.din 12 b) Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less then ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis. c) The Grantee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. d) Under Normal Operating Conditions, the customer will receive a busy signal less than three percent (3%) of the time. e) Customer service center and bill payment locations will be open at least during Normal Business Hours and will be conveniently located. 2) Installations, outages and service calls. Under Normal Operating Conditions, each of the following four standards will be met not less than ninety-five percent (95%) of the time measured on a quarterly basis: a) Standard Installations will be performed within seven (7) business days after an order has been placed. "Standard" Installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution System. b) Excluding conditions beyond the control of Grantee, Grantee will begin working on "Service Interruptions" promptly and, in no event, later than 24 hours after the interruption becomes known. The Grantee must begin actions to correct other service problems the next business day after notification of the service problem. c) At the subscriber's request, the "appointment window" alternatives for Installations, service calls, and other Installation activities will be within a two to four hour time block during Normal Business Hours. (The Grantee may schedule service calls and other Installation activities outside of Normal Business Hours for the express convenience of the customer.) d) Grantee may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. F\Franchise Ain eements\Comcast Carle License Ag eement\current drafis\FINAL TOV Carle Ordinance 042507 dot. 13 e) If Grantee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time that is convenient for the customer. 3) Communications between Grantee and cable Subscribers: a) Notifications to Subscribers: i) The Grantee shall provide written information on each of the following areas at the time of Installation of service, at least annually to all Subscribers, and at any time upon request: • Products and services offered; • Prices and options for programming services and conditions of subscription to programming and other services; • Installation and service maintenance policies; • Instructions on how to use the Cable Service; • Channel positions for programming carried on the System; and • Billing and complaint procedures, including the address and telephone number of the Town's cable office. ii) Customers will be notified of any changes in rates, • programming services or Channel positions as soon as possible through announcements on the Cable System and in writing. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Grantee. In addition, the Grantee shall notify Subscribers thirty (30) days in advance of any significant changes in the other information required by the preceding paragraph. F\Franchise Agreements\Comcast Cable License Agreement\current draft\FINAL TOV Cable Ordinance 1)4251)7.dcx 14 b) Billing: i) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. ii) In case of a billing dispute, the Grantee must respond to a written complaint from a Subscriber within thirty (30) days. c) Refunds: Refund checks will be issued promptly, but no later than either: i) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or ii) The return of the equipment supplied by the Grantee if service is terminated. d) Credits: Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. Section 12-17-17 Rate Regulation A. The Town reserves the right to regulate rates for Basic Cable Service and any other services offered over the Cable System, to the fullest extent permitted by federal and/or state law. The Grantee shall be subject to the rate regulation provisions provided for herein, and those of the Federal Communications Commission (FCC). The Town shall follow the rules relating to cable rate regulation promulgated by the FCC. B. Except to the extent otherwise expressly permitted by applicable law, Grantee shall provide Cable Service to each resident within the Service Area at a uniform rate. Section 12-17-18 License Fee A. Following the issuance and acceptance of a License, the Grantee shall pay to the Grantor a License Fee in the amount set forth in the License Agreement. B. The Grantor, on an annual basis, shall be furnished a Statement within sixty (60) days of the close of the calendar year, certified by an officer of the Grantee or audited by a Certified Public Accountant, reflecting the total amounts of gross annual revenues and all payments, and computations for the previous calendar year. Upon ten (10) days prior written notice, Grantor shall have the right to conduct an independent audit of Grantee's F:\Franchise Agreements\Comcast Cable!'cense Agreement\carrent dratis\FINAL TOV Cable Ordinance 1)42507.doc 15 records, in accordance with generally accepted accounting principles and if such audit indicates a License Fee underpayment of five percent (5%) or more, the Grantee shall assume all reasonable costs of such an audit. C. Except as otherwise provided by law, no acceptance of any payment by the Grantor shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or additional sums payable as a License Fee under this article or any License Agreement or for the performance of any other obligation of the Grantee. D. In the event that any License Fee payment or recomputed amount is not made on or before the dates specified in the License Agreement, Grantee shall pay as additional compensation an interest charge, computed from such due date, at an annual rate equal to the prime lending rate plus one and one-half percent (1-1/2%) during the period for which payment was due. E. License Fee payments shall be made in accordance with the schedule indicated in the License Agreement. Section 12-17-19 Design and Construction Requirements A. Grantee shall not construct any Cable System facilities until Grantee has secured, at its own expense, all necessary permits, licenses or other forms of approval or authorization from Grantor and other cognizant public agencies. B. In those areas of the Town where transmission or distribution facilities of all the public utilities providing telephone and electric power service are underground, the Grantee likewise shall construct, operate and maintain its transmission and distribution facilities therein underground. C. In those areas of the Town where Grantee's cables are located on the above-ground transmission or distribution facilities of the public utility providing telephone or electric power service, and in the event that the facilities of both such public utilities subsequently are placed underground, then the Grantee likewise shall construct, operate and maintain its transmission and distribution facilities underground, at Grantee's cost. Certain of Grantee's equipment, such as pedestals, amplifiers and power supplies, which normally are placed above ground, may continue to remain in above-ground closures. D. In new residential developments in which all the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements: 1) The developer shall be responsible for contacting and surveying all Licensed cable operators to ascertain which operators desire (or, pursuant to the terms and provisions of this article and any License Agreement, may be required) to provide Cable Service to that development. The developer may establish a reasonable deadline to receive cable operator responses. The final development map shall F V ranehi.e Agreements\Comca.t Cable License Agreementk:urrent drafts\FINAI.TOV C able Ordinance 042507.dot. 16 indicate the cable operators that have agreed to serve the development. 2) If one (1) or two (2) cable operators wish to provide service, they shall be accommodated in the joint utilities trench on a nondiscriminatory shared basis. If fewer than two (2) operators indicate interest, the developer shall provide conduit to accommodate two (2) sets of cable television cables and dedicate to the Town any initially unoccupied conduit. The developer shall be entitled to recover from Grantor the cost of such initially unoccupied conduit in the event that Grantor subsequently leases or sells occupancy or use rights to any Grantee. 3) The developer shall provide at least ten (10) working days notice of the date that utility trenches will be open to the cable operators that have agreed to serve the development. When the trenches are open, cable operators shall have two (2) working days to begin the Installation of their cables, and five (5) working days after beginning Installation to complete Installation. 4) The final development map shall not be approved until the developer submits evidence that: a) It has notified each Grantee that underground utility trenches are to open as of an estimated date, and that each Grantee will be allowed access to such trenches, including trenches from proposed Streets to individual homes or home sites, on specified nondiscriminatory terms and conditions; and b) It has received a written notification from each Grantee that the Grantee intends to install its facilities during the open trench period on the specified terms and conditions, or such other terms and conditions as are mutually agreeable to the developer and Grantee, or has received no reply from a Grantee within ten (10) days after its notification to such Grantee, in which case the Grantee will be deemed to have waived its opportunity to install its facilities during the open trench period. 5) Sharing the joint utilities trench shall be subject to compliance with state regulatory agency and utility standards. If such compliance is not possible, the developer shall provide a separate trench for the cable television cables, with the entire cost shared among the participating cable operators. With the concurrence of the developer, the affected utilities and the cable operators, alternative Installation procedures, such as the use of deeper trenches, may be utilized, subject to applicable law. 6) Any cable operator wishing to serve an area where the trenches have been closed shall be responsible for its own trenching and associated costs and shall repair all property to the condition which existed prior to such trenching. ,,Franchise Agreement.\(mca.i Cable I IL en.e Agreement\current dratt\FINAL TOV Cable Ordinance()425()7 dot 1 7 E. Grantee shall remove, replace or modify at its own expense the installation of any of its facilities within any Street when required to do so by the Town to allow the Town to change, maintain, repair, improve or eliminate a Street. Nothing in this section shall prevent Grantee from seeking and obtaining reimbursement from sources other than the Town. F. At the request of any person holding a valid building moving permit and upon sufficient notice, Grantee shall temporarily raise or lower its wires as necessary to facilitate such move upon not less than seventy-two (72) hours advance notice. The direct expense of such temporary changes, including standby time, shall be paid by the holder of the moving permit and Grantee may require payment in advance. Section 12-17-20 Technical Standards A. The Grantee shall construct, install, operate and maintain its System in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, Federal Communications Commission technical standards, and any standards set forth in its License Agreement. In addition, the Grantee shall provide to the Grantor, upon request, a written report of the results of the Grantee's periodic proof of performance tests conducted pursuant to Federal Communications Commission standards and guidelines. B. Repeated and verified failure to maintain specified technical standards shall constitute a material License violation. C. All construction practices shall be in accordance with all applicable Sections of the Occupational Safety and Health Act of 1970, as amended, as well as all other applicable local, state and federal laws and regulations. D. All Installation of electronic equipment shall be installed in accordance with the provisions of the National Electrical and Safety Code and National Electrical Code, as amended, and as may from time to time be amended. E. Antennae and their supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable local, state and federal laws and regulations. F. All of Grantee's plant and equipment, including, but not limited to, the antenna site, headend and distribution system, towers, house connections, structures, poles, wire, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements that the Town may deem appropriate to make, or to interfere in any manner with the rights or reasonable convenience of any property owner, or to unnecessarily hinder or obstruct public use of the Streets or pedestrian or vehicular traffic. F\Franchise Agreements\Comcast Cable License Agreement\cunent drafls\F1NAL 10V Cable Ordinance 042507 do€ 18 G. Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. Section 12-17-21 Trimming of Trees Grantee shall have the authority to trim trees, in accordance with all applicable utility restrictions, ordinance and easement restrictions, upon and hanging over Streets, alleys, sidewalks, and public places of the Town so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee. Town representatives shall have authority to supervise and approve all trimming of trees conducted by Grantee. Section 12-17-22 Use of Grantee Facilities The Town shall have the right to install and maintain, free of charge, upon the poles and within the underground pipes and conduits of Grantee, any wires and fixtures desired by the Town to the extent that such Installation and maintenance does not interfere with existing operations and future use of Grantee. Section 12-17-23 Hold Harmless A. Grantee, under any License operated pursuant to this article, shall agree to indemnify, hold harmless, release and defend the Town, its officers, boards, commissions, agents and employees from and against any and all lawsuits, claims, causes of action, actions, liability, demands, damages, disability, losses, expenses, including reasonable attorneys' fees and costs or liabilities of any nature that may be asserted by any Person resulting or in any manner arising from the action or inaction of the Grantee in constructing, operating, maintaining, repairing or removing the System, in carrying on Grantee's business or operations in the Town or in exercising or failing to exercise any right or privilege granted by the License. This indemnity shall apply, without limitation, to any action or cause of action for invasion of privacy, defamation, antitrust, errors and omissions, theft, fire, violation or infringement of any copyright, trademark, trade names, service mark or patent, or any other right of any Person, firm or corporation, whether or not any act or omission complained of is authorized, allowed or prohibited by this article or any License Agreement, but shall not include any claim or action arising out of the actions or omissions of Town officers, employees or agents or related to any Town programming or other access programming for which the Grantee is not legally responsible. B. The Town shall promptly notify Grantee of any claims subject to indemnification by Grantee and shall cooperate with all reasonable requests by Grantee for information, documents, testimony or other assistance appropriate to a resolution of such claims. Grantee shall have full responsibility for and control of any action or undertaking directed at the resolution of such claims. }:\Franchise Agreements\Comcast Cable License Agreement\current dratts\FINAL TOV Cable Ordinance 1)42507.dc c 19 Section 12-17-24 Insurance Grantee shall provide insurance as specified in the License Agreement. Section 12-17-25 Records Required and Grantor's Right to Inspect A. Grantee shall at all times maintain: 1) A full and complete set of plans, records and "as-built" maps showing the location of the Cable Television System installed or in use in the Town, exclusive of Subscriber service drops and equipment provided in Subscribers' homes. 2) If requested by Grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls shall be submitted to the Grantor within thirty (30) days following its request in a form reasonably acceptable to the Grantor. B. Upon forty-eight (48) hours written notice, and during Normal Business Hours, Grantee shall permit examination by any duly authorized representative of the Grantor, of all License property and facilities, together with any appurtenant property and facilities of Grantee situated within the Town, and all records relating to the License, provided they are necessary to enable the Grantor to carry out its regulatory responsibilities under local, state and federal law, this article and the License Agreement. Such records include all books, records, maps, plans, financial Statements, service complaint logs, performance test results, records of request for service, and other like materials of Grantee. Grantee shall have the right to be present at any such examination. C. If any of the records described in the previous subsection are proprietary in nature or must be kept confidential by state, federal or local law, upon proper request by Grantee, such information obtained during such an inspection shall be treated as confidential. To the extent that any federal or state law requires Grantor to disclose any such records, the Town shall be entitled to disclose those records. D. Copies of all petitions, applications, communications and reports submitted by Grantee, or on behalf of or relating to Grantee, to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction with respect to any matters affecting the Cable System authorized pursuant to this article and any License shall be made available to the Town upon request. Copies of responses from the regulatory agencies to Grantee shall likewise be furnished to the Town upon request. Section 12-17-26 Annual Reports A. Grantee shall submit a written end of the year report to Grantor with respect to the preceding calendar year containing the following information: F\Franchise Agreement.\Comeau Cahle License Agreement\current dralt.\FINAF FOV Cable(hdinance 04251)7 de 20 1) A Summary of the previous year's (or in the case of the initial reporting year, the initial year's) activities in development of the Cable System, including but not limited to, services begun or discontinued during the reporting year. 2) A list of Grantee's officers, members of its board of directors, and other principals of Grantee. 3) A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in Grantee. 4) Information as to the number of Subscribers and the number of basic and pay service Subscribers. 5) The Town, including its agents and representatives, shall have the authority, during Normal Business Hours, to arrange for and conduct an inspection of Annual Reports required pursuant to this article or a License Agreement. The Town shall give the Grantee seventy-two (72) hours written notice of the inspection request. 6) If the requested information is proprietary in nature or must be kept confidential by state, federal or local law, upon proper request by Grantee, such information obtained during such an inspection shall be treated as confidential. To the extent that any federal or state law requires Grantor to disclose any such records, the Town shall be entitled to disclose records. B. All reports and records required under this article shall be furnished at the sole expense of Grantee, except as otherwise provided in this article or the License Agreement. Section 12-17-27 License Violation If Grantee fails to perform in a timely manner any material obligation required by this article or a License granted hereunder, following notice from the Grantor and an opportunity to cure such nonperformance, Grantor may act to remedy such violation in accordance with the following procedures: A. Grantor shall notify Grantee of any alleged material violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than ten (10) business days in the case of the failure of the Grantee to pay any sum or other amount due the Grantor under this article or the Grantee's License and thirty (30) days in all other cases. B. If Grantee fails either to correct the violation within the time prescribed or to commence correction of the violation within the time prescribed and thereafter after diligently pursue correction of such violation, the Grantor shall then give written notice of not less than twenty (20) business days of a public hearing to be held before the Council. Said notice shall specify the violations alleged to have occurred. F\F ranchi.e Ageements\C()mca.t Cable I icen.e Agieemenl\hent drafl.\FINA1.TOV Cable Ordinance 042507 dm 21 C. At the public hearing, the Council shall hear and consider relevant evidence and thereafter render findings and its decision. In the event that the Council finds that a material violation exists and that Grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from Grantor and is not diligently proceeding to fully remedy such violation, the Council may revoke the License or impose another penalty permitted by the License agreement. 1) The Grantor shall give written notice to the Grantee of its intent to revoke the License on the basis of a pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the License. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have sixty (60) days from the receipt of the notice to object in writing and to state its reasons for such objection. In the event the Grantor has not received a satisfactory response from the Grantee, it may then seek termination of the License at a public hearing. The Grantor shall cause to be served upon the Grantee, at least ten (10) days prior to the public hearing, a written notice specifying the time and place of the hearing and stating its intent to request termination of the License. 2) At the hearing, the Grantor shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the License shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The decision of the Grantor shall be in writing and shall be delivered to the Grantee. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Grantor and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the Grantor. Section 12-17-28 Force Majeure: Grantee's Inability to Perform In the event Grantee's performance of any of the terms, conditions or obligations required by this article or a License grant hereunder is prevented by a cause or event not within Grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. For the purpose of this Section, causes or events not within the control of Grantee shall include without limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, failure or loss of utilities, explosion, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires. Section 12-17-29 Abandonment or Removal of License Property A. In the event that the use of any property of Grantee within the License Area or a portion thereof is discontinued for a continuous period of twelve (12) months, Grantee shall be deemed to have abandoned that License property. F\Franchise Agreements\Comcast Cable''cense Agreement\current drafts\FINAL 1 DV Cable lhdmance 042507.do, 22 B. Grantor, upon such terms as Grantor may impose, may give Grantee permission to abandon, without removing, any System facility or equipment laid, directly constructed, operated or maintained under the License. Unless such permission is granted or unless otherwise provided in this article, the Grantee shall remove all abandoned above-ground facilities and equipment upon receipt of written notice from Grantor and shall restore any affected Street to its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles or attachments. Grantor shall have the right to inspect and approve the condition of the public ways, public places, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this article and any security fund provided in the License shall continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this Section. C. Upon abandonment of any License property in place, the Grantee, if required by the Grantor, shall submit to Grantor an instrument, satisfactory in form to the Grantor, transferring to the Grantor the ownership of the License property abandoned. D. At the expiration of the term for which the License is granted, or upon its revocation or earlier expiration, as provided for herein, in any such case without renewal, extension or transfer, the Grantor shall have the right to require Grantee to remove, at its own expense, all above-ground portions of the Cable Television System from all Streets and public ways within the Town within a reasonable period of time, which shall not be less than one hundred eighty (180) days. E Notwithstanding anything to the contrary set forth in this article, the Grantee may abandon any underground License property in place so long as it does not materially interfere with the use of the Street or public rights-of-way in which such property is located or with the use thereof by any public utility or other cable Grantee. Section 12-17-30 Extended Operation and Continuity of Services Upon either expiration or revocation of the License, the Grantor shall have discretion to permit and/or require Grantee to continue to operate the Cable Television System for an extended period of time not to exceed six (6) months from the date of such expiration or revocation. Grantee shall continue to operate the System under the terms and conditions of this article and the License and to provide the regular Subscriber service and any and all of the services that may be provided at that time Section 12-17-31 Receivership and Foreclosure A. A License granted hereunder shall, at the option of Grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or F\Franchi.e Agreement.\Comcast Cable Licen.e Agreement\current dratts\F1NAL TOV Cable Ordinance()42507 doc 23 trustees, to take over and conduct the business of Grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: 1) Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this article and the License granted pursuant hereto, and the receivership or trustees within said one hundred twenty (120) days shall have remedied all the faults under the License or provided a plan for the remedy of such faults which is satisfactory to the Grantor; and 2) Such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the License granted. B. In the case of a foreclosure or other judicial sale of the License property, or any material part thereof, Grantor may serve notice of termination upon Grantee and the successful bidder at such sale, in which event the License granted and all rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: 1) Grantor shall have approved the transfer of the License, as and in the manner that this article provides; and 2) Such successful bidder shall have covenanted and agreed with Grantor to assume and be bound by all terms and conditions of the License. Section 12-17-32 Rights Reserved to Grantor A. In addition to any rights specifically reserved to the Grantor by this article, the Grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the License. B. The Grantor shall have the right to waive any provision of the License, except those required by federal or state regulation, if the Grantor determines (1) that it is in the public interest to do so, and (2) that the enforcement of such provision will impose an undue hardship on the Grantee or the Subscribers. To be effective, such waiver shall be evidenced by a Statement in writing signed by a duly authorized representative of the Grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the License unless the Statement so recites. F\Franchise Agreements\Comcast Cable License Agreement\:urrent drafls\FINAL 10V Cable O dinance 1)4261)7.doc 24 Section 12-17-33 Rights of Individuals A. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers, Channel users, or general citizens on the basis of race, color, religion, national origin, age, disability, gender or sexual preference. Nor shall Grantee fail to extend service to any part of the Town within its licensed Service Area on the basis of the income of the residents. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations, relating to nondiscrimination. B. Grantee shall adhere to the applicable equal employment opportunity requirements of federal, state and local regulations. C. Neither Grantee, nor any Person, agency, or entity shall, without the Subscriber's consent, tap or arrange for the tapping, of any cable, line, signal input device, or Subscriber outlet or receiver for any purpose except routine maintenance of the System, detection of unauthorized service, polling with audience participating, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified. D. In the conduct of providing its services or in pursuit of any collateral commercial enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a Subscriber's or general citizen's right of privacy or other personal rights through the use of the System as such rights are delineated or defined by applicable law. Grantee shall not, without lawful court order or other applicable valid legal authority, utilize the System's interactive two-way equipment or capability for unauthorized personal surveillance of any Subscriber or general citizen. E. No cable line, wire amplifier, converter, or other piece of equipment owned by Grantee shall be installed by Grantee in the Subscriber's premises, other than in appropriate easements, without first securing any required consent. If a Subscriber requests service, permission to install upon Subscriber's property shall be presumed. Where a property owner or his predecessor has granted an easement including a public utility easement or a servitude to another and the servitude by its terms contemplates a use such as Grantee's intended use, Grantee shall not be required to obtain the written permission of the owner for the Installation of cable television equipment. Section 12-17-34 Conflicts In the event of a conflict between any provision of this article and a License Agreement entered pursuant to it, the provisions of this article shall control, except as may be specifically otherwise provided in the License Agreement. F\Franchi.e Agreements\Comcast Cable Licen.e Agreement\current drafts\F1NA1 TOV Cable Ordinance 042507 dcc 25 Section 12-17-35 Severability If any provision of this article is held by any court or by any federal or state agency of competent jurisdiction to be invalid as conflicting with any federal or state law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, such provision shall be considered a separate, distinct, and independent part of this article, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof which had been held invalid or modified is no longer in conflict with such law, rule or regulation, said provision shall thereupon return to full force and effect and shall thereafter be binding on Grantor and Grantee, provided that Grantor shall give Grantee thirty (30) days written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for Grantee to comply with such provision. F\Franchise Agreements\Comcast Cable License Agreement\current drafls\FINAL TOV Cable Ordinance 042507.dcx 26 LICENSE AGREEMENT This License Agreement (hereinafter, the "Agreement" or "License Agreement") is made between the Town of Oro Valley (hereinafter, "Town") and Comcast of Arizona, Inc. (hereinafter, "Grantee"). The Town, having determined that the financial, legal, and technical ability of the Grantee is reasonably sufficient to provide the services, facilities, and equipment necessary to meet the future cable-related needs of the community, desires to enter into this License Agreement with the Grantee for the construction, operation and maintenance of a Cable System on the terms and conditions set forth herein 114, AMP SECTION 1 - Definition ©.f TermsyeliPiM,,, ''."111;4 . andFor the purpose of this License Agreement, terms, p d have the meanings.ascribed to them in the Cable Communications abbreviations shalla g Act of 1984, as amended from time to time, 47�'U.S. 4521 et seq. (the "Cable Policy . Act"), unless otherwise defined herein. iNtP `k means a Person car'. of the Cable r stem who lawfully 1.1. "Customer" .. Y CableService therefrom with the :grantee' x:p esspermission. receives �, 1.2. "Effective Date" meas the'dates on wichh11all persons necessary to sign h Agreement in order for it to be bbindin on'bothparties have executed this Agreement this g p indicated on the signature a e s , unless a circ date is otherwise provided in the as d g pgO .. "Term" section herein. 1.3. "FCC's means the Federal Communications Commission, or successor governmental entity`thereto. . " m e initial authorization or renewal thereof, issued by the 1.4. License �� �. in Au orit whether.s .ch authorization is designated as a. license, agreement, Licensing t� y, permit, license resolution, contract, certificate, ordinance or otherwise, which authorizes p -� the construction . .operation of the Cable System. 1.5. "License g Agreement" or "Agreement" shall mean this Agreement and any amendments or modifications hereto. 1.6. "License Area" means the present legal boundaries of the Town as of the Effective Date, and shall also include any additions thereto, by annexation or other legal means. 1.7. "Licensing Authority" means the Town or the lawful successor, transferee, designee, or assignee thereof. F:\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 1 1.8. "Grantee" shall mean Comcast of Arizona, Inc. 1.9. "Person" means any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for profit, but shall not mean the Licensing Authority. 1.10. "Public Way" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, way, lane, public way, drive, circle or other public right-of--way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of--way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Licensing Authority\ the Li nse Area, which shall entitle the Licensing Authority and the Grantee to the`u e t roof for the purpose of installing, operating, repairing, and maintaining the Cable SystenPublic Way shall also g .z5 mean an easement now or hereafter held by the Licensing A:ut orit wi in the ,icense Y � r\ l c service use dei ted for Area for the purpose of public travel, or for utility � p corniercompatible uses, and shall include other easements or0:071? as shallF�`\ thin their ro use and meaning entitle the Licensing Authority• 'anti`the Grantee to the use thereof p p ;. for the purpose. of installing, o eratin , and maintainin r ' P rpp g g \ \ Santee s Cable System \ over poles, wires, cables conductors, ductsnduits, vaut ` ' oles, amplifiers, liances attachments and other ro ertes' be ordinarilynecessary and pertinent app P P Y Y to the Cable System. The definitions of ,the Oro ValleyTown Code, Article 12-17 are 1.11 incorporated herein. S TON 2 - Grant`of Authority ., 2.1. The:. c nsin Authc t herb rants to the Grantee under the Cable Act g Yg a nonexclusives• ary andt orizing the Grantee to construct and operate a Cable System in along, amo u on c' ss, above, over, under, or in any manner connected with g� :g� P Public Ways a .d easementst the License Area, and for that purpose to erect, install, y construct, repair, replace, recostruct, maintain, or retain in, on, over, under, upon, p across, or aloe PublicVay and all extensions thereof and additions thereto, such oles, wires, cables,:,conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, a liances, attachit and other related property or equipment as may be necessary or PP a urtenant to the Cable System. Any expansion of the Cable System within the Town PP . Ri ht-of--way shall first be reviewed by the Town Engineer or his designee to account for g current and future Town needs and probable conflict over Grantee's proposed Cable Sys tem location. Nothing in this License shall be construed to prohibit the Grantee from offering any service over its Cable System that is not prohibited by federal or state law. 2.2. Term of License. The term of the License granted hereunder shall be five (5) ears, commencing upon the Effective Date of the License, unless the License is Y renewed or is lawfully terminated in accordance with the terms of this License Agreement and the Cable Act. The Parties shall have the option of renewing the License F\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 2 for an additional five (5) years at the end of the term. Any such renewal shall be in writing and signed by the Parties. 2.3. Renewal. Any renewal of this License shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended. 2.4. Reservation of Authority. Nothing in this License Agreement shall (A.) abrogate the right of the Licensing Authority to perform any public works or public improvements of any description; (B) be construed as a waiver of any codes or ordinances of general applicability promulgated by the Licensing Authority; or (C) be construed as a waiver or release of the rights of the Licensing Authority in and to the Public Ways. 2.5. Competitive Equity. \\ acknowled es and:a es that the Li , utho.rit 2.5.1. The Granteeg ` e�� g. � y reserves the right togrant one or more additional licenses:t provide Cable` r ce within g the License Area; provided, however, that no such liense'� Bement shall contain terms , or conditions more favorable or less burdensome to the competitive entity than the material terms and conditions herein, including, but not limited\ to: license fees; insurance; system build-out requirements; performance bonds \d similar instruments; public, education and overnment access chanes ,and support; customer service p � g standards; required reports and related record keeping; and,notice and opportunity to cure q p :\ breaches. If anysuch additional or competitive license is granted by the Licensing Authority which, in the reasonable opinion of the Grantee, contains more favorable or less burdensome terms or conditions than ^this\license Agreement, the Licensing Authorityagrees that it shall .rend this License Agreement to include any more favorable or lessburdensome terr: .s or conditions. 2.5. . fie,event an`appl cation for a new cable television license is filed with the Licensing Authority ,roposin to serve the Licensing Area, in whole or in part, p the Licensing Authority shallserve or require to be served a copy of such application upon anyexisin Grantee or'incumbent cable operator by registered or certified mail or p g via a nationally' overnight courier service. 2.5.3 h\ the event a new federal or state level statutory or regulatory licensing scheme is enacted, Grantee shall have the right to notify the Licensing Authority of its election to participate in the federal or state licensing scheme in lieu of the continued performance of this License Agreement. This right may be exercised upon Grantee showing that another company has applied for such a federal or state license to serve all or a portion of the Town. SECTION 3—Construction and Maintenance of the Cable System 3.1. Permits and General Obligations. The Grantee shall be responsible for obtaining, at its own cost and expense, all permits, licenses, or other forms of approval F\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 3 and/or authorization necessary to construct, operate, maintain or repair the Cable System, or any part thereof, prior to the commencement of any such activity. Construction, installation, and maintenance of the Cable System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. All transmission and distribution structures, poles, other lines, and equipment installed by the Grantee for use in the Cable System in accordance with the terms and conditions of this License Agreement shall be located so as to minimize the interference with the proper use of the Public Ways and the rights and reasonable convenience of property owners who own property that adjoins any such Public Way and under the authority of the Town Engineer. 3.2. Conditions on Street Occupancy. 3.2.1. New Grades/Lines or Roadway Widening. If\the grades or lines of anyPublic Waywithin the License Area are lawfully changed at .y time during the term :{ \ \ of this License Agreement, then the Grantee shall, upon reasonable advance: written g \ nsin Authorit (which shall not�b less than ten (10) business days) notice from the Lice g y and at its own cost and expense, protect or promptly alter or.relocate the Cabe System., or any part thereof, so as to conform with any such new grades,lines or roadway widening. ,iii,i, 3.2.2. Relocation at request of Third Party. The q \~\ q �rratee shall, upon reasonable prior written request of any Perston holding a permit issued by the Licensing n structure, tem orarl� move its wires to e�rmit the moving of such Authority to move anyp y p v structure; provided (i) the Grantee ink.: ose areasonable charge on any Person for the str , may z movement of its wires and such c :ar o iia e required to be paid in advance of the � ,g Y movement of its wires; and (ii) the'Grantee is given not less than ten (10) business days advance written notice to arranetemporary relocation. \ 3.2,3. ^`Restoratiotif;Public Ways. If in connection with the construction, operation, maintenance or repair + te Cable System, the Grantee disturbs, alters, or damages any Public;.i*o„the Grantee\agrees that it shall at its own cost and expense replace and restore ant\ such,Public,Way to a condition reasonably comparable to the condition of the Public Way existing immediately prior to the disturbance. l''' Re uirements. The Grantee shall, at its own cost and .,��,R �4. Safety., q expense, under: k ;� n.eessar and appropriate efforts to maintain its work sites in a p \.. Y safe manner in order totp�revent failures and accidents that may cause damage, injuries or nuisances. All work undertaken on the Cable System shall be performed in substantial accordance with applicable FCC or other federal and state regulations. The Cable System shall not unreasonably endanger or interfere with the safety of Persons or property in the License Area. Grantee agrees to accomplish the work with a minimum of traffic p interru tion. If it becomes necessary to close any traffic lanes on any street within the Town, p rior approval of the Town Engineer is required at least 48 hours in advance of any work. 3.2.5. Trimming of Trees and Shrubbery. The Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the 4 F:\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407 doc License Area so as to prevent contact with the Grantee's wires, cables, or other equipment. All such trimming shall be done at the Grantee's sole cost and expense. The Grantee shall be responsible for any damage caused by such trimming. Notice shall be given to the Town Engineer two (2) weeks in advance of the proposed tree or vegetation trimming. 3.2.6. Aerial and Underground Construction. If all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the License Area are underground, the Grantee shall place its Cable Systems' transmission and distribution facilities underground; provided that such underground locations are actually capable of accommodating the Grantee's cable and other equipment without technical degradation of the Cable System's signal ua ity. any region(s) of the transmission or distribution'facilities c tie the License Area where respective public or municipal utilities are both aerial and underground, the ,isAi a shall have the discretion to construct, operate, and maintain all of:its transmissiona d distribution or anypart thereof, aeriallyor under round.;:Toting in this i Section;shall be facilities, g , . ,�., .....�.. construed to require the Grantee to construct, operas ;oar maintain underground any ground-mounted appurtenances such as customer taps, ie;extenders, system passive devices, amplifiers, power supplies, pedestals or other related equipment. SECTION 4 - Service Obligations 4.1. General Service Obii: ations. The Grantee shall make Cable Service available to every residential dwelling unit within the:License Area where the minimum densityis at least thirty .dvellin units per'na ie and is within one (1) mile of the . g existingCable stem. Sub ect to the density'requirement, Grantee shall offer Cable .Y .. .:, Service to all new homes or previously unserved homes located within 200 feet of the Grantee's Cable S #00. The Grt ,may elec�t' o provide Cable Service to areas not meeting the above density and distance standards. The Grantee may impose an additional charge in excess of its regular instal*€n,eharge for any service installation requiring a drop in or line extension in excess of the :above standards. Any such additional charge shall be h^ computed on a time plus materials basis to be calculated on that portion of the installation that exceeds ti4ex404x0, dt forth above. 4.2. Programming.. The Grantee shall offer to all Customers a diversity of video programming services. 4.3. No Discrimination. Neither the Grantee nor any of its employees, agents, representatives, contractors, subcontractors, or consultants, nor any other Person, shall discriminate or permit discrimination between or among any Persons in the availability of Cable Services provided in connection with the Cable System in the License Area. It shall be the right of all Persons to receive all available services provided on the Cable System so long as such Person's financial or other obligations to the Grantee are satisfied. Nothing contained herein shall prohibit the Grantee from offering bulk F\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 5 discounts, promotional discounts, package discounts or other such pricing strategies as part of its business practice. 4.4. New Developments. The Licensing Authority shall provide the Grantee with written notice of the issuance of building or development permits for planned developments within the License Area requiring undergrounding of cable facilities. The Licensing Authority agrees to require the developer, as a condition of issuing the permit, to give the Grantee access to. open trenches for deployment of cable facilities and at least ten (10) business days written notice of the date of availability of open trenches. Developer shall be responsible for the digging and backfilling of all trenches. The Grantee shall be responsible for engineering and deployment of labor applicable to its cable facilities. Prohibition Against ResellingService. No Person.shall resell, without the 4.5. g .. prior written consent of the Grantee, any Cable Service, program o signal express . ,. transmitted over the Cable Sys tem by the Grantee. '\ ,\• 4.6. In Kind Services. Grantee shall installh r ,, vide in kind services at r \ request of the Town. In kind services may incluvde: ut arc, not limited to the q . technological upgrades, cable installation to new,Town properties,supply and installation g pg of broadcastingand filming equipment :fay ,;public meetings, or installation of broadcasting and filming equipment for "PEG" brad ,asting under Section 11.1 of this agreement. Provision of in kind services under this se .on� shall be at the sole discretion g of the Town Council under the applicable Arizona and Federal laws. SECTION - Fees and Charges to Customers 5.1. pby All r�.te fees char es osits and associated terms and conditions to be � g � .eP imposed the Grte . t any affiliated Person for any Cable Service as of the Effective Date shall be in accordance with applicable FCC's rate regulations. Before any new or modified rate, fg ee or char e is im osed, the Grantee shall follow the applicable FCC q notice re uireents and rules ad notifyp affected Customers, which notice may be by any meanspermitted under applicable law. SECTION 6 - Customer Service Standards; Customer Bills; and Privacy Protection 6.1. Customer Service Standards. The Licensing Authority hereby adopts the customer service standards set forth in Part 76, §76.309 of the FCC's rules and regulations, as amended. The Grantee shall comply in all respects with the customer service requirements established by the FCC. 6.2. Customer Bills. Customer bills shall be designed in such a way as to present the information contained therein clearly and comprehensibly to Customers, and F\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 6 in a way that (A) is not misleading; and (B) does not omit material information. Notwithstanding anything to the contrary in Section 6.1 above, the Grantee may, in its sole discretion, consolidate costs on Customer bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C. §542(c)). 6.3. Privacy Protection. The Grantee shall comply with all applicable federal and state privacy laws, including Section 631 of the Cable Act and regulations adopted pursuant thereto. SECTION 7 - Oversight and Regulation by Licensing Authority 7.1. License Fees. The Grantee shall pay to the Lice „,iting Authority a license fee in an amount equal to five percent (5%) of annual r+ ss� 2.evs received from the operation of the Cable System to provide Cable Service in the,- se Area; provided, m elled to paya hi her 'file' e'rce . :of license fees however that Grantee shall not be co y, g ,; p .� ..,� . p cable operator providingservice in the!License Area. s.110 , ,`, Hent of than any otherp fees shall be made on a quarterlybasis and shall .ue fort -five (, 5) `days after license ee ,,��,^ Y the close of each calendarquarter. Each license feepayment`shall be accompanied by a p report prepared bya re presentative of the Grantee showing the! alis for,the computation p p p of the License Feesp aid during that period. v: 7.2. License Fees Subject to Audit. , ,::. ‘ :,, s,:: :.: ,, , 7.2.1. Upon reasonable rior 'written notice, during normal business hours, at Grantee's principal business office, the. Licensing Authority shall have the right to inspect the Grantee's financialrecords use+ 1�to calculate the Licensing Authority's license fees; provided, howeythat any such inspection shall take place within two (2) years from the dato the Licensing' \Authority receives such payment, after which period anysuch payments .a. be consider d nal. ,,,,ciolli,,,, 7.22.2. Upo ii:the completion of any such audit by the Licensing Authority, the LicensingAuthorityshall, rov.ide to the Grantee a final report setting forth the Licensing Authority's findings in detail, including any and all substantiating documentation.` I.n the event\of an alleged underpayment, the Grantee shall have thirty (30) days from'the',rceipt�as the report to provide the Licensing Authority with a written response agreeingo .or'refuting the results of the audit, including any substantiating p . documentation. Based on these reports and responses, the parties shall agree upon a "Finally Settled Amount(s).” For purposes of this Section, the term "Finally Settled Amount(s)" shall mean the agreed upon underpayment, if any, to the Licensing Authority by the Grantee as a result of any such audit. If the parties cannot agree on a "Final Settlement Amount(s)," the parties shall submit the dispute to a mutually agreed upon mediator within sixty (60) days of reaching a.n impasse. In the event an agreement is not reached at mediation, either party may bring an action to have the disputed amount determined by a court of law in the State of Arizona. 7 F:\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 7.2.3. Any "Finally Settled Amount(s)" due to the Licensing Authority as a result of such audit shall be paid to the Licensing Authority by the Grantee within thirty (30) days from the date the parties agree upon the "Finally Settled A.mount(s)." Once the parties agree upon a"Finally Settled Amount(s)" and such amount is paid by the Grantee, the Licensing Authority shall have no further rights to audit or challenge the payment for that period. If the audit report indicates a License Fee underpayment of five percent (5%) or more, the Grantee shall assume all reasonable costs of the audit report; otherwise the Licensing Authority shall bear the expense of its audit of the Grantee's books and records. 7.3. Oversight of License. In accordance with applicable law, the Licensing Authority shall have the right to oversee, regulate and, on,reasonable prior written notice and in thepresence of Grantee's employee, eriodic ll it t the construction, p Y . operation and maintenance of the Cable S stem in the ,icense � y all parts thereof, as necessaryto monitor Grantee's compliance with the rdvisio , this License p � � ; Agreement. ,,:rJ,‘,t,, 11,1101011-' 7.4. Technical Standards. The Grantee shall v comply with all applicable technical standards of the FCC as published in subpart K of 4 '`C.F.R. § : 6. To the extent those standards are altered, modified or amended during the�t '\o f this License, the Grantee shall comply with such altered,, modified or amended` standards within a p Y w •� reasonable period after such standards become effective• The Licensing Authority shall have, upon written request, the right to obtain a copy o‘.f‘`ests and records required to be p q performed pursuant to the FCC's rules. ;. , :ri , 7.5. Maintenance o hooks, Record end Files. 7. Books and :Records. Throughout the term of this License Agreement, the Grantee agrees that`the ,Licensing Authority, upon reasonable prior written notice to thentee, may review such of the Grantee's books and records re ardin the opera 't Cable,System and the provision of Cable Service in the g g p ,`r,:� License Area which are reasonably necessary to monitor Grantee's compliance with the provisions of this License A\ cement at the Grantee's business office, during normal business hour`s` and without unreasonably interfering with Grantee's business operations. \ll include anyrecords required to be kept in apublic file Such books and.ae + rd q p by the Grantee urs,.:'ii, ;,,,; :,,,atto, p e rules and regulations of the FCC. All such documents pertaining to financial matters that may be the subject of an inspection by the Licensing Authority shall be retained by the Grantee for a minimum period of three (3) years. 7.5.2. File for Public Inspection. Throughout the term of this License Agreement, the Grantee shall maintain at its business office, in a file available for public inspection during normal business hours, those documents required pursuant to the FCC's rules and regulations. 7.5.3. Proprietary Information. Notwithstanding anything to the contrary set forth in this Section, the Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The Licensing Authority 8 F:\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407 doc agrees to treat any information disclosed by the Grantee as confidential and only to disclose that information to those employees, representatives, and agents of the Licensing Authority that have a need to know in order to enforce this License Agreement and who agree to maintain the confidentiality of all such information. The Grantee shall not be required to provide Customer information in violation of Section 631 of the Cable Act or any other applicable federal ori state privacy law. For purposes of this Section, the terms "proprietary or confidential" include, but are not limited to, information relating to the Cable System design, customer lists, marketing plans, financial information unrelated to the calculation of license fees or rates pursuant to FCC rules or other information that is reasonably determined by the Grantee to competitively sensitive. In the event that the Licensing Authority receives a request under a state "sunshine," public records or similar law for the disclosure of information the Grantee has designated as confidential, trade secret or proprietary, the Licensing Authority shall not� ��Grante ;;of such request and p p ;h\ coo erate with Grantee in opposing such request. `\ ; :' p , \ . SECTION 8—Transfer or Change of Control ofble System or License nor anyother Person ma trsfer the Cable System 8.1. Neither the Grantee y y without the prior written consent of the Lic r� in Authority, which or the License \ ,� nhnhn�v'� consent shall not be unreasonably withheld..or,': el yed. No consent shall be required, however, for (i) a transfer in trust, b mota e, tiAiothecation,sr by assignment of any Y g g ,�\ .� rights, title, or interest of the Grantee in the License l+ r.ins the Cable System in order to secure indebtedness; or (ii) a transfer o` an entity;,directly or indirectly owned or controlled byComcast Co oratio Within,thirty (,30) days of receiving a request for � consent, the LicensingAuthority shall, in accordance with FCC rules and regulations, notify the Grantee in writing the additional information, if any, it requires to determine the legal, financial. and technical':qualifications of the transferee or new controlling party. g � '�\ If the Licensing Authority has not taken action on the Grantee's request for consent within one hundred twenty (120) days after receiving such request, consent shall be deemed given. SECTION 9 - Insurance and Indemnity 9.1. Insurane. Throughout the term of this License Agreement, the Grantee shall, at its own cost and expense, maintain Comprehensive General Liability Insurance and provide the Licensing Authority certificates of insurance designating the Licensing Authority and its officers, boards, commissions, councils, elected officials, agents and employees as additional insureds and demonstrating that the Grantee has obtained the insurance required in this Section. Such policy or policies shall be in the minimum amount of One Million Dollars ($1,000,000.00) for bodily injury or death to any one person, and One Million Dollars ($1,000,000.00) for bodily injury or death of any two or more persons resulting from one occurrence, and One Million Dollars ($1,000,000.00) for property damage resulting from any one accident. Such policy or policies shall be non-cancelable except upon thirty (30) days prior written notice to the Licensing F\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407 doc 9 Authority. The Grantee shall provide workers' compensation coverage in accordance with applicable law. The Grantee shall indemnify and hold harmless the Licensing Authority from any workers compensation claims to which the Grantee may become subject during the term of this License Agreement. 9.2. Indemnification. The Grantee shall indemnify, defend and hold harmless the Licensing Authority, its officers, employees and agents from and against any liability or claims resulting from property damage or bodily injury (including accidental death) that arise out of the Grantee's construction, operation, maintenance o,r removal of the Cable System, including, but not limited to, reasonable attorneys' fees and costs, provided that the Licensing Authority shall give the Grantee written notice of its obligation to indemnify and defend the Licensing Authority \ith n�ten (10) business days of receipt of a claim or action pursuant to this Sectio .' f *:;pcen sing Authority p :. determines that it is necessary for it to employ separate coun.s+ , the costs for such separate counsel shall be the responsibility of the Licensing Authority. p p SECTION 10 - System Description andService h term of this A ree\ .ent\the Grantee's Cable 10.1. System Capacity. During t e g shall be capable of providinga minimum f 85 channels♦of video programming System p with satisfactory reception available to its customers in.the License Area. Service • to School Building The Grantee:shall provide free "Basic" and 10.2. � Basic" tier Cable Service and free installation at one outlet to each public and "Expanded a private school, not includin "hhome schools", located in the License Area within 200 feet g .. istribution cable. Forpurposes♦of this subsection, "Expanded Basic" of the Grantee'� d p p shall mean th r of cable service 'ust above the most basic level of service offered by the Grantee. ..01 10.3 Service to Governmental and Institutional Facilities. The Grantee shall provide free "Basic" and "Expanded Basic" tier Cable Service and free installation at one outlet to each. municipal bu ldi` g located in the License Area within 200 feet of the Grantee's distribution cable. "Municipal buildings" are those buildings owned or leased Licensin Athorit: for government administrative purposes, and shall not include by the g �` buildings owned b LicensingAuthority but leased to third parties or buildings such as g y storage facilities at which government employees are not regularly stationed. For of this subsection, "Expanded Basic" shall mean that tier of cable service just purposes above the most basic level of service offered by the Grantee. SECTION 11 —Public, Educational and Governmental Access Use of channel capacity for public, educational and governmental ("PEG") access shall be provided by Grantee in accordance with the Cable Act, Section 611, and as further set forth below. Grantee does not relinquish its ownership of or ultimate right of F\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 10 control over a channel by designating it for PEG use. A PEG access user — whether an individual, educational or governmental user — acquires no property or other interest by virtue of the use of a channel so designated, and may not rely on the continued use of a particular channel number, no matter how long the same channel may have been designated for such use. Grantee shall not exercise editorial control over any public, educational or governmental use of channel capacity, except Grantee may refuse to transmit any public access program or portion of a public access program that contains obscenity, indecency or nudity. The Licensing Authority shall be responsible for developing, implementing, interpreting and enforcing rules for PEG Access Channel use which shall insure that PEG Access Channel(s) and PEG Access Equipment will be available on a first-come, non-discriminatory basis. 11.1. Public, Education, Government Access.; .,.A "Publ, \\, cess Channel" is a channel designated for noncommercial use b the Public on 944.40:Pome, first-served, non-discriminator basis. An "Educational Access Channel Vis'a ch , desi mated for Y g \ noncommercial use byeducational institutions such a ,�� i^ ,or privat : but not f \ "home schools," community colleges and universiti ` ; A "Governmental Access Channel" is a channel designated for noncommercial\ase ;:- e\Licensing Authority for the purpose of showing the public local government at work. grantee shall designate p p capacity on four (4) channels, two (2) on analog• and two (2) 6,,:,i',,,,.:;,:4a, igital tier, for public, education or govern access video progran ,rovided by t Licensing Authority or its designee, such as apublic access or nizatic� ,designated educational institution. g � . . A Public Access Channel may not be used. to cableca t pro rams for profit, nonpolitical or commercial fundraisin in an fashion. Unused caity may be utilized by Grantee g Y \ sub•ect to theprovisions for"fallow gine" bele. J p 11.2. rantee Use , fallow Time. because blank or under utilized PEG Iiii,Liet,!:,,,- channels ar04i,..4.',,' ,., ,,..-„,-: e not;gin` e public ire nrk,in the event the Licensing Authority or other PEG access user elects\ t fully prog x its Channel(s), a Grantee may program unused time on those channelssubject to reclamation by the Licensing• Authority upon no less than sixty (60) days notice\ •, 11.3. ` indemnification, The Licensin Authorit shall indemnify Grantee for g Y an cs or dama it`may suffer due to violation of the intellectual property Y liability, rights of third re ,fin any PEG channel, and from claims arising out of the Licensing g ' Authority's rules four o administration of access. SECTION 12 - Enforcement and Termination of License 12.1. Notice of Violation or Default. In the event the Licensing Authority believes that the Grantee has not complied with the material terms of the License, it shall notify the Grantee in writing with specific details regarding the exact nature of the alleged noncompliance or default. F:\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 11 12.2. Grantee's Right to Cure or Respond. The Grantee shall have forty-five (45) days from the receipt of the Licensing Authority's written notice to: (A) respond to the Licensing Authority, contesting the assertion of noncompliance or default; or (B) cure such default; or (C) in the event that, by nature of the default, such default cannot be cured within the forty-five (45) day period, initiate reasonable steps to remedy such default and notify the Licensing Authority of the steps being taken and the projected date that they will be completed. 12.3. Public Hearings. In the event the Grantee fails to respond to the Licensing Authority's notice or in the event that the alleged default is not remedied within forty-five (45) days or the date projected by the Grantee, the Licensing Authority shall schedule a p ublic hearing to investigate the default. Such public hearing shall b ,held at the next regularly scheduled meeting of the Licensing Authority that i scheduled at a time that is no less than ten (10) business days therefrom. The Licensing Authority shall notify the Grantee in writingof the time and place of such meeting and provide .e\Grantee with a reasonable opportunity to be heard. .\ pp Subject to applicable federald,state law, in the event the 12.4. Enforcement. � pp horit after such ublic hearin determines it4,444q Grantee is in default Licensing Authority, p g� of any provision of the License, the Licensing Authority may: 10,11„,„ �\.1�, 12.4.1. seek specific erformance 'of\a provision that reasonably lends p p � �' such remedyas an alternative to daa e or'sk ether equitable relief; or itself to u g the ,,,r, case ooh a substantial default of a material provision of the 12.4.2. in License, declare he License Agreement to be revoked in accordance with the following: t g 12.4.2.1 The Licensing Authority shall give written notice to the Grantee of its i to revokee\License on the basis of a pattern of noncompliance the Grantee, i l : `` ,one or more instances of substantial noncompliance with a by � . � \ g materialprovision of ti ;iense. The notice shall set forth with specificity the exact nature of the noncompliance, The;Grantee shall have ninety (90) days from the receipt of notice td,abject•ect in writn .nd to state its reasons for such objection. In the event such � :, the LicensingApthorityhas not received a response from the Grantee or upon receipt of the response does nt t dee with the Grantee's proposed remedy, it may then seek termination of the License ata public hearing. The Licensing Authority shall cause to be served uponthe Grantee, at least ten (10) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to request termination of the License. 12.4.2.2 At the designated hearing, the Licensing Authority shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the License shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The decision of the Licensing Authority shall be in writing and shall be delivered to the Grantee by certified mail. The Grantee may appeal such determination to an appropriate court, which shall have the F\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 12 power to review the decision of the Licensing Authority "de novo" and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the Licensing Authority. 12.5. Technical Violation. The Licensing Authority agrees that it is not its intention to subject the Grantee to penalties, fines, forfeitures or revocation of the License for so-called "technical" breach(es) or violation(s) of the License, which shall include, but not be limited, to the following: 12.5.1. in instances or for matters where a violation or a breach of the License by the Grantee was a good faith error that resulte l in' o or minimal negative impact on the Customers within the License Area; or p 12.5.2. where there existed circumstances reasonably beyond the, control precipitated a violation b th , 'rr tee of the i en e, fir which of the Grantee and whichp p y to haveprevented the Grantee from come '„ ,with a term o ,condition of were deemed ���` �, the License. ^� \ " Bond. Duringthe T. rm of this License,, greement, Grantee 12.6. Performance shallprovide to the Town aperformance bond'.tco guarantee the Grantee's faithful p .. performance of its obligations under this greemet. The performance bond shall be in the amount of$50,000. If Grantee fails to timelr'pay assessment of fines, damages or license fees, the LicensingAuthority shall give:Grantee twenty (20) business days notice . of its intent to draw the amount owed from the performance bond. The Licensing i maynot draw from the,securit bornd" re any action, appeal or other process Authority y has been instituted b Grantee to challenge the amount owed. y :: ;� TION 13 � Miscellaneous Provisions 13.1 own cable Regulations. The terms of the Oro Valley Town Code, Article 12-17 are hereby incorporated into this License agreement. Therefore, Grantee hereby g subject agrees to subject itself to the terms and conditions of Article 12-17 as may be legally amended from time,to,tinge. 13.2. �Force Ma'eure. The Grantee shall not be held in default under, or in noncompliance with, the provisions of the License, nor suffer any enforcement or penalty g relatin to noncompliance or default (including termination, cancellation or revocation of the License), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure of utility service necessary to operate the Cable System, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantee's ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee's cable or F\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407 doc 13 equipment is attached, as well as unavailability of materials or qualified labor to perform the work necessary. 13.3. Notice. All notices shall be in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail, registered or certified, return receipt requested, postage prepaid or by reputable overnight courier service and addressed as follows: To the Licensing Authority: Town of Oro Valley 11000 N. La Canada Oro ValleyAZ 85737 ,\ \ �., ATTN: Town Manager -` "' Town of Oro Valley ' \o'�'\ 11000 N. La Canada '1111111:11111L, Oro Valley, AZ 85737 dri1111111„,„ \ h\// t�R mo ATTN: Town Attorney1111%, :40.000' To the Grantee: ,ii ..01411:11044, `i\`11,4 T Al 4°' '�/j\` 'Mil,Ilth*. ��" t%4140001:,,,.,14104%.„,i Comcast of Arizona, Inc. 00A $714"11010 8251 N Cortaro Rd. ..,_. Al .� ,A9 Tucson AZ 85743 ' `5`^' A 014104111" Attn: General Mana er with a copy to j:::: 'Illf UP 1:li.,,,„,., .,!;:wit[,lin„,, .i Ill,!! !:1:.,,!!!::,.. .,,:ii:IrliNitut,„,„.,0.,,,,,-. Comcast co,aiWIMib, liarl",'''' 1500 M ret Stat..9,a,,ei,A,,tili4:,. , �. `qhs ,Ifi Philadelphia, PA 1 / „. , ii' Attn.: Government Affairs Department $greément. This License A reement, including all Exhibits, 13.4. E�t� �mg embodies the entire understandin and agreement of the Licensing Authority and the g Grantee with respect to the subject matter hereof and supersedes all prior understandings, agreements and communications, whether written or oral. All ordinances or parts of ordinances that are in conflict with or otherwise impose obligations different from the provisions of this License Agreement are superseded by this License Agreement. 13.5. Severability. If any section, subsection, sentence, clause, phrase or other portion of this License Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct and independent portion. F:\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 14 Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect. 13.6. Governing Law. This License Agreement shall be deemed to be executed in the State of Arizona, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the State of Arizona, as applicable to contracts entered into and performed entirely within the State. 13.7. Modification. No provision of this License Agreement shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the Licensing Authority and the Grantee, which amendment shall be authorized on behalf of the Licensing Authority througl-.,,, 4‘,4dOptio,wilbf an appropriate resolution or order by the Licensing Authority, as required by'applicable law. 13.8. No Third-Party Beneficiaries. Nothing in this License Agreement is or third-party beneficiarystatus,cin y member l i�thgl "ublic to was intended to conferp y Y enforce the terms of this License Agreement. itnimmar Itut No Waiver of Rights. Nothingin this Licei se, A reement shall be 13.9. g g:. construed as a waiver of anyrights, substantive or procedural, 'Grantee may have under g \ federal or state law unless such waiver is expressly stated herein. .1110 WHEREOF, this License reement h . been executed by the duly IN WITNESSg authorized representatives of the parties agt§bt forth below ,as of the date set forth below: r Coes of Arizona, Inc. By: 114le: . te: State of Arizona ) ) ss. County of ) On this day , 20 who is known to me or has been satisfactorily been identified as the , as duly authorized agent to sign on behalf of Comcast of America, Inc., to bind and obligate Comcast of America, Inc. Notary Public My Commission Expires: F:\Franchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 15 TOWN OF ORO VALLEY Paul H. Loomis, Mayor ATTEST: APPROVED AS TO FORM: Kathryn E. Cuvelier, Town Clerk Melinda aahan,.Town Attorney orgair ,:i:1,,,,,,.. ' . 1,;-isiitlii,s„,,,,, Date: Date: ia"1:1111!flk. II-, 4: taii.„. AAP. "'iliffilii,.. il, 1 , "AtefleiV INN" .:104.011L0-. '' 1Jhk, .�;. ',00. ,....,00•'' �`,: e, li:11000-.l 40i oppk, ,44.1,,,,,;,,,A,4 ..../4004,,4444,40,44 ip. ilk; it :101, il s'' itoh, ...,0, '41:(0100 illy .lo 1 40 le Illibt 11,1 1 h ,,gp'//��t 4,,..:, 1.., if H..,.•:...E ..• II 14110r ,P 0 A 01 1411: , tit, it ii I.i. ,, 4., s4,...4,.:1 4, s .1..' .',. '.4::•41100." "jib*t ..',...'•'•,,, .. 14. �(. ' • r ,,? 40' s',H- :.-.4, ild '..l''ir ,%,,.,, im 41-:, itlik,,:„..s. ,,,.41", I'll IlirillOk: .4411 H.'' Ii--- FFranchise Agreements\Comcast Cable License Agreement\Oro Valley License Agreement\Oro Valley License Agreement Draft B6B 061407.doc 1 6 A.R.S.§9-505 Title 9. Cities and Towns Chapter 5. Public Utilities Article 1.1. Cable Television Systems (Refs & Annos) §9-505. Definitions: In this article, unless the context otherwise requires: 1. "Area of jurisdiction" means that part of a city or town, or that part of the unincorporated area of a county, or both when applied to a cable television system within parts of more than one jurisdiction, for which a license is issued. 2. "Cable operator" means a person that is issued a license by the licensing authority to construct, operate and maintain a cable television system in public streets, roads and alleys. 3. "Cable service" means the transmission to subscribers of video programming or other programming service and subscriber interaction, if any, that is required for the selection or use of the video programming or other programming service. 4. "Cable television system" means any facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service that includes video programming and that is provided to multiple subscribers within a community. Cable television system does not include: (a) A facility that serves fewer than fifty subscribers. (b) A facility that serves subscribers without using any public street, road or alley. (c) A facility that serves only to retransmit the television signals of one or more television broadcast stations. (d) A facility of a common carrier that is subject, in whole or in part, to 47 United States code§201 through 276, except that the facility is considered a cable television system, other than for purposes of 47 United States code§541(c), to the extent the facility is used in the transmission of video programming directly to subscribers, unless the extent of the use is solely to provide interactive on-demand services. (e) An open video system that complies with 47 United States code§573. (f) A facility of an electric utility that is used solely for operating its electric utility system. 5. "Existing cable television system" means a cable television system in operation on April 1, 1974, a cable television system under construction on April 1, 1974 or a cable television system which had received authorization for construction as of April 1, 1974. 6. "Gross revenues" means all cash, credits, property of any kind or nature, or other consideration, less related bad debt not to exceed one and one-half per cent annually, that is received directly or indirectly by the cable operator, its affiliates, subsidiaries or parent or any person, firm or corporation in which the cable operator has a financial interest or that has a financial interest in the cable operator and that is derived from the cable operator's operation of its cable system to provide cable service in the area of jurisdiction. Gross revenues include all revenue from charges for cable service to subscribers and all charges for installation, removal, connection or reinstatement of equipment necessary for a subscriber to receive cable service, and any other receipts from subscribers derived from operating the cable system to provide cable service, including receipts from forfeited deposits, sale or rental of equipment to provide cable service, late charges, interest and sale of program guides. Gross revenues also include all income the cable operator receives from the lease of its facilities located in the public streets, roads and alleys, unless services that the lessee provides over the leased facilities are subject to a transaction privilege tax of the licensing authority. Gross revenues do not include revenues from commercial advertising on the cable system, the use or lease of studio facilities of the cable system, the use or lease of leased access channels or bandwidth, the production of video programming by the cable operator, the sale, exchange, use or cablecast of any programming by the cable operator in the area of jurisdiction, sales to the cable operator's subscribers by programmers of home shopping services, reimbursements paid by programmers for launch fees or marketing expense, license fees, taxes or other fees or charges that the cable operator collects and pays to any governmental authority, any increase in the value of any stock, security or asset, or any dividends or other distributions made in respect of any stock or securities. 7. "Intergovernmental contract" means the joint exercise of powers authorized by title 11, chapter 7, article 3. 8. "License" means that ordinance or resolution which contains the right, authority or grant, given by a licensing authority enabling a person to construct, operate and maintain a cable television system. 9. "Licensing authority" means the board of supervisors of a county or the governing body of an incorporated city, including a charter city, or town. 10. "Other programming service" means information that a cable operator makes available to all subscribers generally. 11. "Video programming" means programming that is provided by, or generally comparable to programming provided by, a broadcast television station. A.R.S. § 9-506 Title 9. Cities and Towns Chapter 5. Public Utilities Article 1.1. Cable Television Systems (Refs & Annos) § 9-506. Authority to issue license; limitations A. For the purpose of authorizing and regulating the construction, operation and maintenance of cable television systems, the licensing authority of a city, including a charter city, or town for an incorporated area, or the licensing authority of the county for unincorporated areas, either individually or jointly by intergovernmental contract, may issue a license to any person to use public streets, roads and alleys and shall impose conditions, restrictions and limitations upon the use of public streets, roads and alleys and upon the construction, operation and maintenance of cable television systems. B. Subject to the limitations of this section, a licensing authority may adopt resolutions or ordinances implementing and controlling the license or joint license, issue a license containing other terms and conditions and impose a license fee on gross revenues. In addition to the limitations of this section, the license is subject to the limits established by the communications act of 1934, as amended (47 United States code §§ 151 through 615b) and the federal communications commission. C. Other than the license fee on gross revenues authorized by this article and transaction privilege taxes as provided in this subsection, a licensing authority may not levy a tax, rent, fee or charge, however denominated, on a cable operator for the use of the public streets, roads or alleys to provide cable service or levy a tax, fee or charge on the privilege of engaging in the business of providing cable service in the area of jurisdiction. Taxes, rents, fees and charges include all access channel support except as provided in subsection D of this section, rental, application, construction, permit, inspection, inconvenience and other fees and charges related to a cable operator's use of the public streets, roads and alleys. In addition, the following apply: 1. Any transaction privilege taxes otherwise authorized by law to be levied on the business of providing cable service or in relation to use of the public streets, roads or alleys to provide cable service may be levied on a cable operator if the taxes are levied only on gross revenues and the rate of the taxes is subject to paragraph 3 of this subsection. This subsection does not authorize the imposition of transaction privilege taxes on interstate telecommunications services. 2. The license fee and any transaction privilege taxes levied on gross revenues constitute a franchise fee within the meaning of 47 United States code § 542(g)(1). 3. Under no circumstances may the total of the rates of the license fee and of any transaction privilege taxes on gross revenues levied or assessed by a licensing authority for the privilege of providing cable service and related use of the public streets, roads or alleys to provide cable service exceed a rate of five per cent, except during the transition period for certain licenses as provided in subsection H of this section. 4. A cable operator shall pass on to subscribers any reduction in the amount of fees, taxes or other charges paid by a cable operator and itemized to subscribers that results from the implementation of this amendment to this section. D. A licensing authority may not require a cable operator to provide in-kind services, make in-kind payments or pay a fee in addition to the monetary license fee levied or assessed as provided in this section as part of or as a condition of issuing a license to provide cable service, except that: 1. A licensing authority may require a cable operator to provide channel capacity to transmit programming over which the cable operator exercises no editorial control except as authorized by 47 United States code § 531(e). The channel capacity shall be limited to not more than two channels of public, educational or governmental access programming in the basic service tier of the cable television system and not more than two channels of noncommercial governmental programming, at least one of which may be programmed by the federal government, in the digital programming tier of the cable television system. If channel capacity is required, the programming shall be specified in the license and the cable operator may require that the channels regularly display an unobtrusive logo or other suitable identifier of the cable operator as set forth in the license. 2. A licensing authority may require a cable operator to provide the basic service tier of cable service at no monthly service charge to offices and facilities of the licensing authority. 3. The value of any channel capacity provided pursuant to paragraph 1 of this subsection, including any capital costs and charges for or in support of its use, and of basic service provided pursuant to paragraph 2 of this subsection may not be offset against the license fee levied or assessed under this section. E. This section does not prohibit a cable operator from agreeing to provide in-kind services or make in-kind payments in the area of jurisdiction that are prohibited by subsection D of this section if the agreement with the licensing authority is not part of, or entered into as a condition of being issued, a new, renewed or amended license to provide cable service. An agreement that requires in-kind cable service or payments shall set forth the total annual fair market value of the in-kind cable service and payments, which shall be less than or equal to and offset against the license fee levied or assessed annually pursuant to this section. The license shall authorize the cable operator to retain license fees and taxes collected from its subscribers in the amount of this offset. In-kind cable services and payments include any channel capacity and all capital costs and charges for or in support of the use of any channel capacity that the cable operator agrees to provide under this subsection. F. Notwithstanding subsection C of this section, a licensing authority may require that a cable operator: 1. Bear reasonable costs that are associated with damage caused to public streets, roads and alleys by construction, maintenance and operation of its facilities in the public streets, roads and alleys and that are imposed on a competitively neutral and nondiscriminatory basis in relation to costs borne by telecommunications corporations under § 9-582, subsection C. 2. Pay fines, fees, charges or damages for breach of the terms and conditions of the license. G. This section does not affect the authority of a licensing authority to manage the public streets, roads and alleys within its boundaries or to exercise its police powers. H. A license that is in effect on the effective date of this amendment to this section, including one that is later renewed or extended for a term that begins before July 1, 2007, is enforceable in accordance with its terms and conditions as of July 1, 2007 and is not subject to the provisions of this amendment to this section. If a license that is in effect on the effective date of this amendment to this section is later extended or renewed for a term that begins after June 30, 2007, the extended or renewed license is subject to the provisions of this amendment to this section, effective on the first day of the renewal or extension term, unless the term begins before January 1, 2008, in which case the limitation in subsection C, paragraph 3 of this section on the rates of the license fee and of any transaction privilege taxes on gross revenues is: 1. Five per cent, if the gross effective rate is five per cent or less. 2. If the gross effective rate is more than five per cent, five per cent plus the following percentage: (a) In the first year of the extension or renewal term, the gross effective rate minus five per cent, multiplied by two-thirds. (b) In the second year of the term, the gross effective rate minus five per cent, multiplied by one-third. (c) In the third year of the term, and thereafter, zero per cent. I. For purposes of subsection H of this section, "gross effective rate" means one hundred per cent multiplied by the fraction in which the numerator is the sum of all taxes, fees and charges of the licensing authority that the cable operator itemized to subscribers and paid to the licensing authority under the license for the twelve calendar months immediately preceding the effective date of this amendment to this section and the denominator is the cable operator's gross revenues for that period in the area of jurisdiction.