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HomeMy WebLinkAboutResolution 2002-140 license agreement with comcast cablevision F. ANN RODRIGUEZ, RECORDED BY: KJM DEPUTY 8013 SMARA TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 RECORDER RECORDER AS2 DOCKET: 11959 SEQUENCE: 20030021389 01/03/2003 RES 16: 59 MAIL AMOUNT PAID $ 15.50 MARANA RESOLUTION NO. 2002-140 A RESOLUTION OF THE MAYOR AND COUNC~ OF THE TOWN OF MARANA, ?LRIZONA, AUTHORIZING THE APPROVAL AND EXECUTION OF A LICENSE AGREEMENT WITH COMCAST CABLEVISION OF ARIZONA, INC., FOR THE PURPOSE OF PROVIDING CABLE TELEVISION SERVICE TO THE TOWN. WHEREAS, Comcast Cablevision of Arizona, Inc. ("Comcast"), is in the business of providing cable television services to its customers, and currently possesses a license fi.om the Town to offer its services to customers within the Town of Marana, which shall soon expire; and WHEREAS, in order to provide cable television services within the Town, Comcast must possess a license fi.om the Town; and WHEREAS, the License Agreement, attached hereto as Exhibit "A" and incorporated herein by this reference, grants Comcast a renewal of its license to provide cable television services within the Town; and WHEREAS, pursuant to Article 9-8 of the Marana Town Code, the Town is authorized to grant and renew licenses to operate cable television systems within the Town; and WHEREAS, the Mayor and Council, after due evaluation of Comcast Cablevision of Arizona, Inc., and after public hearings, has determined that it is in the best interest of the Town and its residents to renew its license with Comcast Cablevision of Arizona, Inc. NOW, THEREFORE, BE IT RESOLVED bythe Mayor and Council of the Town of Marana, Az-izona, that the License Agreement, attached hereto as Exhibit "A" and incorporated herein by this reference, is hereby approved. BE IT FURTHER RESOLVED by the Mayor and Council that the Mayor is hereby authorized to execute the License Agreement on behalf of the Town of Marana. 4 % Marana. Arizona Resolution No. 2002-140 Page 1 of 2 PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 17th day of December, 2002. M~a)~o~r BbBBY SUTTON, JR. ATTEST: ~ ~7~/J°cely~'Entz .~ Town Clerk ~ APPROVED AS TO FORM: As Town Attorney and not personally 9 9 S Marana, Arizona Resolution No. 2002-140 Page 2 of 2 Exhibit A [License Agreement] 4 Marana, Arizona Resolution No. 2002-140 Page 3 of 2 License Agreement Town of Marana, Arizona and Comcast Cablevision of Arizona, Inc. 1-1 1-2 1-3 1-4 1-5 1-6 1-7 1-8 1-9 2-1 2-2 2-3 2-4 2-5 2-6 2-7 2-8 2-9 2-10 3-1 3-2 3-3 3-4 3-5 3-6 3-7 3-8 4-1 5-1 5-2 5-3 6-1 6-2 6-3 Article 1. Renewal of License Grant Right of Grantor to Issue and Renew License Effective Date of Renewal Duration Written Notice License Not Exclusive Transfer of Ownership of Licensee Conflict with Cable Ordinance and Reservation of Rights Definitions Article 2. General Requirements Governing Requirements License Fee Outside Consultants Liability Insurance Indemnification Grantee's Insurance Workers' Compensation Insurance Security Fund Procedure for Remedying License Violations Annual Report Article 3. System Upgrade/Rebuild Rebuild Emergency Alert Capability Standby Power Parental Control Lock Status Monitoring Technical Standards Permits and Right of Inspection Periodic Review and Subscriber Surveys Article 4. Services and Programming Programming Article 5, Support for Local Cable Usage System Service Public, Educational or Government (PEG) Channels Compliance with Federal Law Article 6. Regulation License Regulation Force Majeure Rate Regulation LICENSE AGREEMENT This Agreement (hereinafter the "Agreement"), made and entered into this 17th day of December, 2002, by and between the Town of Marana, a municipal corporation of the State of Arizona (hereinafter the "Town" or "Grantor"), and Comcast Cablevision of Arizona, Inc., a Colorado Corporation (hereinafter "Grantee"). WITNESSETH WHEREAS, the Town of Marana, pursuant to Article 9-8 of the Marana Town Code (hereinafter referred to as the "Ordinance"), is authorized to grant and renew one (1) or more nonexclusive revocable Licenses to operate, construct, maintain and reconstruct a Cable Television System within the Town; and WHEREAS, the Town, after due evaluation of Comcast Cablevision of Arizona, Inc., and after public hearings, has determined that it is in the best interest of the Town and its residents to renew its License with Comcast Cablevision of Arizona, Inc. NOW, THEREFORE, the Grantor hereby grants to Grantee, the renewal of its cable television License in accordance with the provisions of the Ordinance and this License Agreement. ARTICLE 1. RENEWAL OF LICENSE SECTION 1-1. Grant The cable television License granted on the ~ day of to Comcast Cablevision of Arizona, Inc., and now held by Grantee is hereby renewed, subject to the terms and conditions of this Agreement. The renewal provides Grantee with the authority, right and privilege, to construct, reconstruct, operate and maintain a Cable Television System and to provide cable service and any other service permitted by this License within the Streets and public ways in the Town as it is now or may in the future be constituted. SECTION 1-2. Right of Grantor to Issue and Renew License Grantee acknowledges and accepts the right of Grantor to issue and/or renew a License Agreement pursuant to the provisions of Section 626 of the Cable Act, as amended and Grantee agrees it shall not now or at any time hereafter challenge any lawful exercise of this right in any local, state or federal court. This is not, however, a waiver of any constitutional or legal right or privilege of the part of the Grantee. SECTION 1-3. Effective Date of Renewal The renewal shall be effective on the date that both parties have executed this License Agreement, provided that said date is no later than thirty (30) days after the date that the Town Council, by resolution, approves this License Agreement. The renewal is further contingent upon the filing by Grantee with the Town Clerk of the executed License Agreement and the required security fund and insurance certificates, except that if the filing of the security fund or any such insurance certificate does not occur within sixty (60) days after the effective date of the resolution approving this renewal and any extension of time hereunder, the Grantor may declare this renewal null and void. SECTION 1-4. Duration This License Agreement shall commence upon its effective date and shall expire thereafter on September 18, 2018, unless renewed, revoked or terminated sooner as herein provided. Upon commencement of this Agreement, the previous License Agreement between the parties shall be cancelled. SECTION 1-5. Written Notice All notices, reports or demands required to be given in writing under this License Agreement shall be deemed to be given when delivered personally to the person designated below, or when five (5) days have elapsed after it is deposited in United States mail in a sealed envelope, with registered or certified mail, postage prepaid thereon, or on the next business day if sent by express mail or overnight air courier addressed to the party to which notice is being given, as follows: If to Grantor: Town Manager Town of Marana 13251 N. Lon Adams Rd. Marana, AZ 85653 If to Grantee: General Manager Comcast Cablevision of Arizona, Inc. 8251 North Cortaro Road Tucson, Arizona 85743 Either party upon notice may change such addresses to the other party given as provided in this Section. SECTION 1-6, License Not Exclusive This License shall not be construed as any limitation upon the right of Grantor, through its proper offices, and in accordance with applicable law, to grant to other persons or corporations rights, privileges or authority similar to or different from the rights, privileges and authority herein set forth, in the same or other streets and public ways or public places or other places the Grantee is entitled to occupy by this License Agreement, permit or otherwise; provided, however, that such additional grants shall not operate to materially modify, revoke or terminate any rights granted to Grantee herein and shall be in accord with the provisions of the Ordinance. The Grantee acknowledges and agrees that the Grantor reserves the right to grant one or more additional licenses to provide Cable Service within the License Area; provided., however, that no such license agreement 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 or similar instruments; public, education and government access channels and capital support; customer service standards; required reports and related record keeping; liquidated damages and other sanctions; and universal service. If any such additional and/or competitive license is g ranted by the Grantor which, in the reasonable opinion of the Grantee, contains more favorable or less burdensome terms o r conditions than t his License Agreement, then the Grantee m ay give written notice to the Grantor stating the specific terms and/or conditions in the competitive license that are more favorable or less burdensome than those contained in this License Agreement. Upon receipt of any such notice, if the Grantor, acting reasonably, agrees with the Grantee's assertion, then the Grantor shall modify this License Agreement to include any more favorable or less burdensome term or condition, provided, the Grantee agrees, upon the request of the Grantor, to also modify this License Agreement to include any term or condition contained in the competitive license that is more favorable to the Grantor or more burdensome to the Grantee, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law, Any license granted by the Grantor shall be non-exclusive. Any Person desiring a new cable television license within the Town boundaries shall file with the Grantor an application for a new cable television license in a form acceptable or specified by the Grantor, and in accordance with procedures and schedules established by the Grantor. In the event an application for a new cable television license is filed with the Grantor proposing to serve within the Town boundaries, in whole or in part, the Grantor shall serve a copy of such application upon any existing Grantee or incumbent cable operator by registered or certified mail. SECTION 1-7. Transfer of Ownership of Licensee Notwithstanding the requirements of this Agreement and the Ordinance, a transfer of ownership of Grantee shall not require Grantor's consent in the event of (i) a transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Agreement or in the Cable System in order to secure indebtedness, (ii) a transfer to an entity owned and/or effectively controlled by Comcast Cable Communications, Inc., provided, however, that prior to any such transfer, the successor entity agrees in writing to accept and agree to abide by this Agreement and to assume its predecessor's liability and obligations under this Agreement, or (iii) the merger involving Grantee or its parent company which is currently pending, including the announced merger between AT&T Broadband and Comcast Corporation. SECTION 1-8. Conflict with Cable Ordinance and Reservation of Rights The provisions of the Cable Television Ordinance of Marana, Article 9-8 of the Marana Town Code, are hereby incorporated herein by reference as if set out in full, and form part of the terms and conditions of this License Agreement. In the event of any conflict between the terms and conditions of this License Agreement and the provisions of the Ordinance, the License Agreement shall control. Grantor and Grantee each reserves all the rights that they may possess under law unless expressly waived herein. SECTION 1-9. Definitions The definitions contained in the Ordinance are incorporated herein as if fully set forth. ARTICLE 2. GENERAL REQUIREMENTS SECTION 2-1. Governing Requirements Grantee shall comply with all lawful requirements of this Agreement, the Ordinance and applicable local, state and federal law. SECTION 2-2. License Fee A. In lieu of business privilege tax, the Grantee shall pay to the Grantor an annual License Fee of five percent (5%) of Grantee's Gross Annual Receipts; provided, however, that Grantee shall not be compelled to pay any higher percentage of license fees than any other c able operator providing c able service i n t he License A rea. The Licensee Fee shall be payable quarterly by April 30, July 31, October 31 and January 31 for the preceding three (3) month periods. Each payment shall be accompanied by a brief report showing the basis for the computation including the completion of a License Fee Payment Worksheet in a form to be mutually agreed between the parties. The Grantor is entitled to inspect such reports as provided in Section 9-8-26 of the Ordinance. B. Upon reasonable prior written notice and during normal business hours, the Grantor shall have the right to inspect the Grantee's financial records used to calculate the Grantor's license fees, and the right to audit and to re-compute any amounts determined to be payable under this Section; provided, however, that any such audit shall take place within three (3) years from the date the Grantor receives such payment, after which period any such payment shall be considered final. C. Upon the completion of any such audit conducted by the Grantor, the Grantor shall provide to the Grantee a final audit report, which sets forth the Grantor's findings in detail, including any and all substantiating evidence. The Grantee shall have thirty (30) days from the receipt of the audit report to provide the Grantor with a written response to the audit report, including any substantiating evidence. Any "Finally Settled Amount(s)" due to the Grantor as a result of the audit report shall be paid to the Grantor by the Grantee within thirty (30) days from receipt of written notice of the Final Settlement Amount from the Grantor. For purposes of this Section 2.2, the term "Finally Settled Amount(s)" shall mean the underpayment, if any, to the Grantor by the Grantee as a result of the audit report. If the audit report indicates a License Fee underpayment of ten percent (10 %) or more, the Grantee shall assume all reasonable costs of the audit report. SECTION 2-3. Outside Consultants To aid in the analysis and resolution of any future disputed matters relative to this License Agreement, the Grantor and Grantee may, by mutual agreement (both as to whether to hire and whom to hire), employ the services of technical, financial or legal consultants, as mediators. All reasonable fees of the consultants incurred by the Grantor and the Grantee in this regard shall be borne equally. SECTION 2-4. Liability Insurance Upon the effective date of renewal, the Grantee shall, at its sole expense, take out and maintain during the life of this License Agreement public liability insurance with a company licensed to do business in the State of Arizona with a rating by Best of not less than "A-" that shall protect the Grantee, the Grantor, and the Grantor's officials, officers, employees and agents from claims which may arise from operations under this Agreement, whether such operations are by the Grantee, its officials, officers, directors, employees and agents, or any subcontractors of Grantee. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and 4 personal injury and damage to property, resulting from Grantee's automobiles, products and completed operations. The amount of insurance for single limit coverage applying to bodily a nd personal injury a nd property damage shall not b e I ess than o ne million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in aggregate. The following endorsements shall attach to the liability policy: 1. The policy shall cover personal injury as well as bodily injury. The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries, personal injuries and property damage. Broad form property damage liability shall be afforded. The Grantor shall be named as an additional insured on the policy. Co 5. Standard form of cross-liability shall be afforded. o An endorsement stating that the policy shall not be canceled without thirty (30) days written notice of such cancellation given to the Grantor. An endorsement shall be provided which states that the coverage is primary insurance, and the Grantor's insurance shall only be excess coverage. Grantor reserves the right to adjust the coverage limit requirements no more than every five (5) years. Any such adjustment shall be negotiated in good faith by the Grantor and Grantee, and will be no greater than the increase in the State of Arizona Consumer Price Index (all consumers) for such five (5) year period. Grantee shall submit to Grantor documentation of the required insurance including a certificate of insurance signed by the insurance agent and companies named. SECTION 2-5. Indemnification Except as otherwise provided herein, Grantee shall indemnify, hold harmless, release and defend Grantor, its officers, agents and employees from and against any and all lawsuits, claims, actions, demands, damages, disability, losses, expenses including reasonable attorney's fees and other defense costs or liabilities of any nature that may be asserted by any Person or entity arising out of the activities of Grantee, its subcontractors, employees and agents hereunder. Grantee shall be solely responsible and save Grantor harmless from all matters relative to (i) payment of Grantee's employees, including compliance with Social Security, withholdings, etc., (ii) damages alleged to have been caused by service outages, and (iii) damage caused by third-party contractors. This indemnification obligation is not limited in any way by a limitation of the amount or type of damages or compensation payable by or for Grantee under workers' compensation, disability or other employee benefit acts, acceptance of insurance certificates required under this Agreement, or the terms, applicability or limitations of any insurance held by Grantee. Do Grantor does not, and shall not, waive any rights against Grantee which it may have by reason of this indemnification, because of the acceptance by Grantor, or the deposit with Grantor by Grantee, of any of the insurance policies described in this Agreement. This indemnification by Grantee shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in this Section, regardless of whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages. Grantee shall not be required to indemnify Grantor for negligence or misconduct on the part of Grantor or its officials, boards, commissions, agents, or employees (hereinafter "Such Acts"). Grantor shall hold Grantee harmless for any damage resulting from any Such Acts of the Grantor or its officials, boards, commissions, agents, or employees in utilizing any PEG access channels, equipment, or facilities and for any such acts committed by Grantor in connection with work performed by Grantor and permitted by this Agreement, on or adjacent to the Cable System. SECTION 2-6. Grantee's Insurance Grantee shall not commence any Cable System construction or reconstruction work, or permit any subcontractor to commence work, until both shall have obtained or caused to be obtained all insurance required under this Section. Said insurance shall be maintained in full force and effect until the completion of construction, and issuance of a certificate of completion by the Grantor. SECTION 2-7. Workers' Compensation Insurance Grantee shall obtain and maintain workers' compensation insurance for all Grantee's employees, and in case any work is sublet, Grantee shall require any subcontractor similarly to provide workers' compensation insurance for all subcontractor's employees, all in compliance with state laws, and to fully protect the Grantor from any and all claims arising out of occurrences on the work. Grantee hereby indemnifies Grantor for any damage resulting to it from failure of either Grantee or any subcontractor to take out and maintain such insurance. Grantee shall provide the Grantor with a certificate of insurance indicating workers' compensation coverage prior to commencing construction of the system. SECTION 2-8. Security Fund Within sixty (60) days of the resolution adopting this Agreement, Grantee shall establish and provide to Grantor a performance bond in the amount of at least twenty-five thousand dollars ($25,000.00) as security for the faithful performance by Grantor of all material provisions of this Agreement. Such performance bond can be drawn on directly by the Grantor for payment of liquidated damages and the Grantee will replenish it every time a draw-down occurs so as to retain the full twenty-five thousand dollars ($25,000). Grantor may draw on the Performance Bond for those purposes specified in Section 2- 9(d) hereof, according to the procedures of Section 2-9. Nothing herein shall be deemed a waiver of the normal permit and bonding requirements made of all contractors working within the Grantor's rights-of-way. SECTION 2-9. Procedure for Remedying License Violations A. The procedures for remedying License violations or breaches shall be consistent with the procedures of the Ordinance. Grantor shall first notify Grantee of the 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 Agreement or the Ordinance, and thirty (30) days in all other cases. If Grantee fails to correct the violation within the time prescribed, or if Grantee fails to commence corrective action within the time prescribed and diligently remedy such violation thereafter, the Grantee shall then be given a written notice of not less than twenty (20) business days of a public hearing to be held before the Town Council. Said notice shall specify the violations alleged to have occurred. B. At the public hearing, the Town Council shall hear and consider all relevant evidence, and thereafter render findings and its decision. C. In the event the Town Council finds that Grantee has corrected the violation, or has diligently commenced correction of such violation after notice thereof from Grantor and is diligently proceeding to fully remedy such violation, or that no material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed. D. Subject to applicable federal and state law, in the event the Grantor, after such meeting, elects to assess liquidated damages then such election shall constitute the G rantor's exclusive remedy for a period of thirty (30) days. Thereafter, if Grantee remains in non- compliance with the requirement of its license, then the Grantor may pursue any available remedy. E. In the event that the Grantor 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, the Grantor may impose liquidated damages, payable from the Performance Bond, up to one hundred dollars ($100) per day or per incident for all license violations, provided that all violations of a similar nature occurring at the same time shall be considered one (1) incident. Unexcused violation, as used in this section, shall mean any violation of this Agreement or the Town Code, which has not been remedied following thirty (30) days notice to Grantee. SECTION 2-10. Annual Report In addition to the requirements of Section 9-8-26 of the Ordinance, Grantee shall submit a written end-of-the-year report to Grantor of services, changes, customer service and operational and ownership change so long as Grantor notifies the Grantee in writing of the information requested and provides the forms for such reports requested. ARTICLE 3. SYSTEM UPGRADE/REBUILD SECTION 3-1. Rebuild A. Grantee acknowledges that, within the Town boundaries as they exist as of the date of this Agreement, it has completed its rebuild of the existing Cable System to provide a capacity of at least eighty (80) channels of video programming corresponding to an upper operating frequency of eight hundred seventy megahertz (870 MHz). The reconstruction uses a fiber optic infrastructure and fiber to node architecture. The Cable System has been built with the capacity to immediately activate two-way service when services are available and when requested as provided in Section 5-2 of this Agreement. Further, to the extent construction of a node is complete and two-way service to the area served by the node is available, Grantee shall, if needed and requested by Grantor, immediately activate two-way service in accordance with the provision of section 5-1 of this Agreement. SECTION 3-2. Emergency Alert Capability Within thirty-six (36) months of the effective date of this Agreement, Grantee shall provide the System capability to transmit an emergency alert signal to all participating Subscribers in the form of a video override capability to permit Grantor to interrupt and cablecast a video message on all channels simultaneously in the event of disaster. The Grantor shall contact the appropriate Office of Emergency Management to advise of any testing of the EAS so that all testing of EAS is conducted at the same time as the Office of Emergency Maintenance for Pima County. SECTION 3-3. Standby Power Within thirty-six (36) months of the effective date of this Agreement, Grantee shall provide standby power generating capacity at the cable communications System control center capable of providing at least three (3) hours of emergency supply. Grantee shall maintain standby power System supplies throughout the major trunk cable networks capable of providing emergency power within the standard limits of commercially available power supply units. SECTION 3-4. Parental Control Lock Grantee shall provide, for sale or lease, to Subscribers, upon request, a parental control locking device or digital code that permits inhibiting the video and audio portions of any channels offered by Grantee. SECTION 3-5, Status Monitoring Grantee shall provide an automatic status monitoring System or a functional equivalent when t he C able System h as been activated for interactive service p rovided t hat such status monitoring is technically and economically feasible. SECTION 3-6. Technical Standards The Federal Communications Commission (FCC) Rules and Regulations, Part 76, Subpart K (Technical Standards), as may be amended from time to time shall apply, to the extent permitted by applicable law. SECTION 3-7. Permits and Right of Inspection Grantee will comply with all provisions of the Marana Town Code, Zoning Code, Building Codes, and other codes and laws duly adopted by the Grantor from time to time. Grantee shall pay all permit and other fees, and obtain all necessary permits and approvals, before commencing any work on public or private property, and Grantor shall have the right to inspect all such construction and installation work performed by Grantee or its contractors or subcontractors. This section is not intended to apply to cable installations to a residence or business where (i) cable is already available on the property or directly adjacent to the property, (ii) the work consists of a simple splice into the existing cable box and minor trenching (six- inches or less) to extend the cable from the existing cable box to the structure, and (iii) there is no significant construction work, trenching, or other work which would normally require a permit and the payment of fees. SECTION 3-8. Periodic Review and Subscriber Surveys Grantor and Grantee acknowledge and agree that the field of cable television is a relatively new and rapidly changing one that may see many regulatory, technical, financial, marketing and legal changes during the term of this License Agreement. Therefore, to provide for the maximum degree of flexibility in this License Agreement, and t o help achieve a continued, advanced a nd modern C able System, t he following review provisions will apply. The Grantor may request review sessions at any time during the term of this Agreement and Grantee shall cooperate in such review; provided, however, that there shall not be more than one (1) review session in a three year period and shall not commence prior to 2006, and that Grantee has been properly notified in writing at least forty-five (45) days in advance of the commencement of such review sessions. Topics that may be discussed at any review session include, but are not limited to channel capacity, t he System performance a nd signal quality, PEG access, multiple uses of cable, Subscriber complaints and response to Subscriber complaints, billing practices, program services and installation practices, judicial rulings, and FCC rulings. During a review session, Grantee shall fully cooperate with the Grantor and shall provide without cost such reasonable information and documents as the Grantor may request to perform the review so long as such reasonable information is not consider proprietary information by the Grantee. If a t a ny time during t he review, t he Grantor reasonably believes t hat t here i s evidence of inadequate technical performance of the Cable System pursuant to the FCC's Rules and Regulations, Part 76, Subpart K, the Grantor may require Grantee, at Grantee's expense, to perform appropriate tests and analyses directed toward such suspected technical inadequacies. Grantee shall cooperate fully with the Grantor in performing such tests and shall report to the Grantor the results of the tests, which shall include at least: (a) a description of the problem in the System performance that precipitated the special tests; (b) the System component tested; (c) the equipment used and procedures employed in testing; (d) the method, if any, by which the System performance problem was resolved; and (e) any other information pertinent to said tests and analyses. Bo The Grantor may request, once every three (3) years, but no sooner than 2006, a Subscriber survey. The results of each such Subscriber survey shall be provided to the Grantor to the extent such results are not confidential. Each questionnaire shall be prepared and conducted in good faith so as to present reasonably reliable measures of Subscriber satisfaction with (a) signal quality; (b) response to Subscriber complaints; (c) billing practices; (d) program services; and (e) installation practices. As a result of a review session or Subscriber survey, the Grantor and Grantee may determine that a change in the Grantee's practices may be appropriate. In such event, the parties shall work together to take reasonably necessary action to resolve the issue. It is specifically agreed between the parties that Grantee shall not be required to agree to any such action if it is not technically feasible, economically reasonable, or would result in a material alteration of the rights and duties of the parties under this Agreement. ARTICLE 4. SERVICES AND PROGRAMMING SECTION 4-1. Programming Broad programming categories. Grantee shall provide or enable the provision of at least the following initial broad categories of programming: 1. Educational programming; 2. News & information; 3. Sports; 4. General entertainment (including movies); 5. Children/family-oriented; 6. Arts; culture and performing arts; 7. Foreign language; 8. Science/documentary; 9. Weather information; 10. National, state and local government affairs; l0 Deletion or reduction of programming categories. Grantee shall not delete or so limit as to effectively delete any broad category of Programming identified in Section 4-1(A) and within its control without the consent of the Grantor or as otherwise authorized by law. In the event of a modification proceeding under federal law, the mix and quality of services provided by the Grantee on the effective date of this License shall be deemed the mix and quality of services required under this License throughout its term. General 1. Service Obligation. The Grantee shall extend and make Cable Service available to every unserved dwelling unit within the License Area reaching the minimum density of at least thirty (30) dwelling units per mile, except that Grantee shall not be required to install Cable Service where another authorized licensee already serves the area. The Grantee shall extend and make Cable Service available to any resident or business requesting Cable Service within the License Area so long as the isolated resident or business would require no more than a two-hundred (200) aerial or underground drop line. With respect to a request for connection requiring an aerial or underground drop line in excess of two-hundred (200) feet, the Grantee shall extend service to such resident or business for an additional charge of time plus materials, based on that portion of the installation which exceeds the distance exceeding two-hundred (200) feet. ARTICLE 5, SUPPORT FOR LOCAL CABLE USAGE SECTION 5-1. System Service A. Service to School Buildings. The Grantee shall provide free "Basic" and "Expanded Basic" tier Cable Service, free two-way service and one (1) high-speed modem, and free installation of one outlet to each public and private school located in the License Area within two-hundred (200) feet of the Grantee's coaxial trunk line. B. Service to Governmental and Institutional Facilities. The Grantee shall provide free "Basic" and Expanded Basic" tier Cable Service and free installation of one outlet to each non-residential municipal building located in the License Area within two-hundred (200) feet of the Grantee's distribution cable. In addition, the Grantee shall provide free two-way service and one (1) high-speed modem to the Grantor's main municipal complex. SECTION 5-2. Public, Educational or Government (PEG) Channels A. Grantee shall make available to each of its subscribers who receive at least Expanded Basic, reception of at least four (4) educational and/or governmental channels, which shall b e used for n on-commercial purposes. The PEG channels designated s hall b e provided by Grantee as a part of the Limited Basic cable service. The PEG channels shall be made available by Grantee for use by the Grantor and its citizens in accordance with the rules and procedures established by the Grantor or any lawfully designated person, group, organization or agency authorized by the Grantor for that purpose. Grantee shall dedicate two (2) additional channels for educational or governmental access upon the Grantor's request if any educational or governmental channel is in continuous use from 8:00 a.m. to 11:00 p.m. for three (3) consecutive months provided, however: 1. The use of repeat programming in excess of ten percent (10%) of the amount of original programming on that channel, as well as text or character-generated programming shall not be considered a continuous use. 2. To the extent that any PEG channel is not being used for the provision of non- commercial, educational or governmental purposes, Grantee shall be permitted to use such channel(s) for the provision of other services subject to any reasonable rules established by the Grantor regarding such use. Grantee's permitted use of any PEG channel made pursuant to this section shall cease within ninety (90) days of Grantee's receipt of notice from Grantor that such channel will again be used for public, educational or governmental access. Notwithstanding the above, Grantee may accommodate a request from the Grantor for additional access capacity made pursuant to Section 5-2 (A) by combining more than one access use on a channel provided that: 1. It is technically and economically feasible for Grantee to do so; 2. The scheduling needs of all users of the channel can accommodated; and be reasonably 3. The access entity, which requires use of the alternate channel, must be able to access the alternate channel from the site where it normally originates playback of its programs and may not be required to transport tapes to a remote site for playback. 4. If one (1) of the four (4) access entities identified in Section 5-2 (A) is continually using its channel as defined in Section 5-2 (B) of this Agreement and has additional need for channel capacity to distribute programming four (4) or more hours per day, five (5) days per week for six (6) consecutive weeks, the Grantor may require the Grantee to dedicate an-additional access channel for the use by that access entity subject to the limitation imposed by Section 5-2 (B) (2). In no event shall Grantee be required to provide in excess of six (6) PEG channels total. SECTION 5-3. Compliance with Federal Law In accepting this License Agreement, the Grantee expressly agrees that the commitments indicated in this Section 5-2 are knowingly, voluntarily and intelligently entered into and any commitments and/or payments will not be deemed to be "License Fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. § 542), and such commitments and/or payments shall not be deemed to be (i) "payments in kind" or any involuntary payments chargeable against the compensation to be paid to the Grantor by Grantee pursuant to Section 2-2 hereof or (ii) part of the compensation to be paid to the Grantor by Grantee pursuant to Section 2-2 hereof. ARTICLE 6. REGULATION SECTION 6-1. License Regulation The License renewed under this Agreement shall be subject to regulation by Grantor in accordance with all of the lawful provisions of the Ordinance. SECTION 6-2. Force Majeure Neither Grantor n or Grantee s hall b e liable for damages o r subject to penalty due t o delay or failure to perform any duty imposed by this License Agreement or by the Ordinance if such delay or failure results directly or indirectly from circumstances beyond the control of such party. Within thirty (30) days of Grantee's discovery of the event causing such delay or failure, Grantee shall provide Grantor written notice describing the cause of the delay or failure and estimating the period of time in which such delay or nonperformance will be cured. SECTION 6-3. Rate Regulation If Grantor is permitted under federal and/or state law to regulate the rates charged by Grantor, and if Grantor elects to so regulate, Grantor shall establish reasonable procedures consistent with due process and applicable law and follow those procedures before so regulating. IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement the date and year first above written. GRANTOR: Town of Marana, Arizona an Arizona municipal corporation ATTEST: By: Bobby Sutton, Mayor Jocelyn Entz, Town Clerk APPROVED AS TO FORM AND AUTHORITY. The foregoing Agreement has been reviewed by the undersig-ned attorney who has determined that it is in proper form and within the power and authority granted under the laws of the State of Arizona to the Town of Marana. Dan/el J. Hochuli, Esq. Attorney for the Town of Marana 14 GRANTEE: Comcast Cablevision of Arizona, Inc. A Colorado corporation By: Kevin Bethke Area Vice President STATE OF ARIZONA) ) SS. COUNTY OF PIMA ) The foregoing instrument was acknowledged before me on the .. day of December, 2002, by , the of Comcast Cablevision of Arizona, Inc., a Colorado corporation, on behalf of said corporation. Notary Public My commission expires: 15