of Colorado IX, LLC
Pueblo West Metropolitan
TELEVISION LICENSE AGREEMENT
Table of Contents
of Colorado IX, LLC
Pueblo West Metropolitan
TELEVISION LICENSE AGREEMENT
SECTION 1. DEFINITIONS
the purposes of this License, the following terms, phrases, words and
their derivations shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense
include the future, words in the plural include the singular, and
words in the singular include the plural. Words not defined shall be
given their common and ordinary meaning. The word "shall"
is always mandatory and not merely directory.
means the status of any capacity or part of the Cable System in which
any Cable Service requiring the use of that capacity or part is
available without further installation of system equipment, whether
hardware or software.
when used in connection with Grantee, means any Person who owns or
controls, is owned or controlled by, or is under common ownership or
control with, Grantee.
means any statute, ordinance, judicial decision, executive order or
regulation having the force and effect of law, that determines the
legal standing of a case or issue.
means amounts lawfully billed to a Subscriber and owed by the
Subscriber for Cable Service and accrued as revenues on the books of
Grantee, but not collected after reasonable efforts have been made by
Grantee to collect the charges.
is the level of
programming service which includes, at a minimum, all Broadcast
Channels, all PEG SD Access Channels required in this License, and
any additional Programming added by the Grantee, and is made
available to all Cable Services Subscribers in the License Area.
local commercial television stations, qualified low power stations
and qualified local noncommercial educational television stations, as
referenced under 47 USC § 534 and 535.
means a television or radio signal transmitted over the air to a wide
geographic audience, and received by a Cable System by antenna,
microwave, satellite dishes or any other means.
means the Title VI of the Communications Act of 1934, as amended.
means any Person or groups of Persons, including Grantee, who
provide(s) Cable Service over a Cable System and directly or through
one or more affiliates owns a significant interest in such Cable
System or who otherwise control(s) or is (are) responsible for,
through any arrangement, the management and operation of such a Cable
means the one-way transmission to Subscribers of video programming or
other programming service, and Subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
means any facility, including Grantee’s, consisting of a set of
closed transmissions paths and associated signal generation,
reception, and control equipment that is designed to provide Cable
Service which includes video programming and which is provided to
multiple Subscribers within a community, but such term does not
include (A) a facility that serves only to retransmit the television
signals of one or more television broadcast stations; (B) a facility
that serves Subscribers without using any Right-of-Way; (C) a
facility of a common carrier which is subject, in whole or in part,
to the provisions of Title II of the federal Communications Act (47
U.S.C. 201 et seq.), except that such facility shall be considered a
Cable System (other than for purposes of Section 621(c) (47 U.S.C.
541(c)) to the extent such facility is used in the transmission of
video programming directly to Subscribers, unless the extent of such
use is solely to provide interactive on-demand services; (D) an open
video system that complies with federal statutes; or (E) any
facilities of any electric utility used solely for operating its
electric utility systems.
means a portion of the electromagnetic frequency spectrum which is
used in the Cable System and which is capable of delivering a
television channel (as television channel is defined by the FCC by
means any Subscribers other than Residential Subscribers.
means the Tier of optional video programming services, which is the
level of Cable Service received by most Subscribers above Basic
Service, and does not include Premium Services.
is the Pueblo West Metropolitan District of Pueblo County, Colorado,
and all of the area within its boundaries.
means carrying a transmission from the Headend to remote points on
the Cable System or to Interconnection points on the Cable System.
means any building, or portion thereof, that has independent living
facilities, including provisions for cooking, sanitation and
sleeping, and that is designed for residential occupancy. Buildings
with more than one set of facilities for cooking shall be considered
Multiple Dwelling Units unless the additional facilities are clearly
Date” means the
date on which all persons necessary to sign this Agreement in order
for it to be binding on both parties have executed this Agreement as
indicated on the signature page(s), unless a specific date is
otherwise provided in the “Term” section herein.
means the Federal Communications Commission.
means a transmission medium of optical fiber cable, along with all
associated electronics and equipment, capable of carrying Cable
Service by means of electric lightwave impulses.
means Comcast of Colorado IX, LLC or its lawful successor, transferee
means, and shall be construed broadly to include all revenues derived
directly or indirectly by Grantee and/or an Affiliated Entity that is
the cable operator of the Cable System, from the operation of
Grantee’s Cable System to provide Cable Services within the
District. Gross revenues include, by way of illustration and not
fees for Cable Services, regardless of whether such Cable Services
are provided to residential or commercial customers, including
revenues derived from the provision of all Cable Services (including
but not limited to pay or premium Cable Services, digital Cable
Services, pay-per-view, pay-per-event and video-on-demand Cable
reconnection, downgrade, upgrade or similar charges associated with
changes in subscriber Cable Service levels;
paid to Grantee for channels designated for commercial/Leased Access
use and shall be allocated on a pro rata basis using total Cable
Service subscribers within the District;
remote control, and other Cable Service equipment rentals, leases, or
Revenues as defined herein;
fees, convenience fees and administrative fees which shall be
allocated on a pro rata basis using Cable Services revenue as a
percentage of total subscriber revenues within the District;
from program guides;
Regulatory Fees; and,
from home shopping channels and other Cable Service revenue sharing
arrangements which shall be allocated on a pro rata basis using total
Cable Service subscribers within the District.
Revenues” shall mean revenues derived from sales of advertising
that are made available to Grantee’s Cable System subscribers
within the District and shall be allocated on a pro rata basis using
total Cable Service subscribers reached by the advertising.
Additionally, Grantee agrees that Gross Revenues subject to License
fees shall include all commissions, rep fees, Affiliated Entity fees,
or rebates paid to National Cable Communications (“NCC”) and
Comcast Spotlight (“Spotlight”) or their successors associated
with sales of advertising on the Cable System within the District
allocated according to this paragraph using total Cable Service
subscribers reached by the advertising.
Revenues” shall not include:
bad debt write-offs, except any portion which is subsequently
collected which shall be allocated on a pro
rata basis using
Cable Services revenue as a percentage of total subscriber revenues
within the District;
taxes and/or fees on services furnished by Grantee imposed by any
municipality, state or other governmental unit, provided that License
Fees and the FCC regulatory fee shall not be regarded as such a tax
imposed by any municipality, state or other governmental unit on
Grantee including but not limited to Public, Educational and
Governmental (PEG) Fees;
fees and marketing co-op fees; and,
third party advertising sales agency fees which are reflected as a
deduction from revenues.
the extent revenues are received by Grantee for the provision of a
discounted bundle of services which includes Cable Services and
non-Cable Services, Grantee shall calculate revenues to be included
in Gross Revenues using a methodology that allocates revenue on a pro
rata basis when
comparing the bundled service price and its components to the sum of
the published rate card, except as required by specific federal,
state or local law, it is expressly understood that equipment may be
subject to inclusion in the bundled price at full rate card value.
This calculation shall be applied to every bundled service package
containing Cable Service from which Grantee derives revenues in the
District. The District reserves its right to review and to challenge
reserves the right to change the allocation methodologies set forth
in this Section 1.22 in order to meet the standards required by
governing accounting principles as promulgated and defined by the
Financial Accounting Standards Board (“FASB”), Emerging Issues
Task Force (“EITF”) and/or the U.S. Securities and Exchange
of any disputes over the classification of revenue should first be
attempted by agreement of the Parties, but should no resolution be
reached, the Parties agree that reference shall be made to generally
accepted accounting principles (“GAAP”) as promulgated and
defined by the Financial Accounting Standards Board (“FASB”),
Emerging Issues Task Force (“EITF”) and/or the U.S. Securities
and Exchange Commission (“SEC”). Notwithstanding the forgoing,
the District reserves its right to challenge Grantee’s calculation
of Gross Revenues, including the interpretation of GAAP as
promulgated and defined by the FASB, EITF and/or the SEC.
means any facility for signal reception and dissemination on a Cable
System, including cables, antennas, wires, satellite dishes,
monitors, switchers, modulators, processors for Broadcast Signals,
equipment for the Interconnection of the Cable System with adjacent
Cable Systems and Interconnection of any networks which are part of
the Cable System, and all other related equipment and facilities.
means any Channel or portion of a Channel commercially available for
video programming by Persons other than Grantee, for a fee or charge.
means the document in which this definition appears, i.e.,
the contractual agreement, executed between the District and Grantee,
containing the specific provisions of the authorization granted,
including references, specifications, requirements and other related
means the area within the jurisdictional boundaries of the District,
including any areas annexed by the District during the term of this
means that fee payable to the District described in subsection 3.1.
means the District Manager of the District or designee.
means any individual, sole proprietorship, partnership, association,
or corporation, or any other form of entity or organization.
means programming choices (such as movie Channels, pay-per-view
programs, or video on demand) offered to Subscribers on a
per-Channel, per-program or per-event basis.
means any Person who receives Cable Service delivered to Dwelling
Units or Multiple Dwelling Units, excluding such Multiple Dwelling
Units billed on a bulk-billing basis.
means each of the following which 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 District: streets,
roadways, highways, avenues, lanes, alleys, bridges, sidewalks,
easements, right-of-way and similar public property and areas.
means the State of Colorado.
means any Person who or which elects to subscribe to, for any
purpose, Cable Service provided by Grantee by means of or in
connection with the Cable System and whose premises are physically
wired and lawfully Activated to receive Cable Service from Grantee's
Cable System, and who is in compliance with Grantee’s regular and
nondiscriminatory terms and conditions for receipt of service.
means that portion of the Cable System used primarily by Grantee in
the transmission of Cable Services to Residential Subscribers.
means the transmission, between or among points specified by the
user, of information of the user's choosing, without change in the
form or content of the information as sent and received (as provided
in 47 U.S.C. Section 153(43)).
means the offering of Telecommunications for a fee directly to the
public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used (as
provided in 47 U.S.C. Section 153(46)).
means a group of Channels for which a single periodic subscription
fee is charged.
means that the Cable System is capable of providing both Upstream and
means carrying a transmission to the Headend from remote points on
the Cable System or from Interconnection points on the Cable System.
SECTION 2. GRANT OF LICENSE
(A) The District hereby grants to Grantee a nonexclusive
authorization to make reasonable and lawful use of the Right-of-Way
within the District to construct, operate, maintain, reconstruct and
rebuild a Cable System for the purpose of providing Cable Service
subject to the terms and conditions set forth in this License and in
any prior utility or use agreements entered into by Grantee with
regard to any individual property.
in this License shall be deemed to waive the lawful requirements of
any generally applicable District ordinance existing as of the
Effective Date, as defined in subsection 1.18.
and every term, provision or condition herein is subject to the
provisions of State law, federal law, the Charter of the District,
and the ordinances and regulations enacted pursuant thereto. The
Charter of the District, as the same may be amended from time to
time, are hereby expressly incorporated into this License as if fully
set out herein by this reference. Notwithstanding the foregoing, the
District may not unilaterally alter the material rights and
obligations of Grantee under this License. All
ordinances or parts of ordinances or Municipal Code that are in
conflict with or otherwise impose obligations different from the
provisions of this License are superseded by this License.
Notwithstanding any other provision of this License, Grantee reserves
the right to challenge provisions of any ordinance, rule, regulation,
or other enactment of the District that conflicts with its
contractual rights under this License, either now or in the future.
License shall not be interpreted to prevent the District from
imposing additional lawful conditions, including additional
compensation conditions for use of the Right-of-Way, should Grantee
provide service other than Cable Service.
promises and guarantees, as a condition of exercising the privileges
granted by this License, that any Affiliate of the Grantee directly
involved in the offering of Cable Service in the License Area, or
directly involved in the management or operation of the Cable System
in the License Area, will also comply with the obligations of this
rights shall pass to Grantee by implication. Without limiting the
foregoing, by way of example and not limitation, this License shall
not include or be a substitute for:
other permit or authorization required for the privilege of
transacting and carrying on a business within the District that may
be required by the ordinances and laws of the District;
permit, agreement, or authorization required by the District for
Right-of-Way users in connection with operations on or in
Right-of-Way or public property including, by way of example and not
limitation, street cut permits; or
permits or agreements for occupying any other property of the
District or private entities to which access is not specifically
granted by this License including, without limitation, permits and
agreements for placing devices on poles, in conduits or in or on
License is intended to convey limited rights and interests only as to
those Right-of-Way in which the District has an actual interest. It
is not a warranty of title or interest in any Right-of-Way; it does
not provide the Grantee with any interest in any particular location
within the Right-of-Way; and it does not confer rights other than as
expressly provided in the grant hereof.
License does not authorize Grantee to provide Telecommunications
Service, or to construct, operate or maintain Telecommunications
facilities separate from those used to provide Cable Service. This
License is not a bar to the provision of non-Cable Services, or to
the imposition of any lawful conditions on Grantee with respect to
Telecommunications, whether similar, different or the same as the
conditions specified herein. This License does not relieve Grantee
of any obligation it may have to obtain from the District an
authorization to provide Telecommunications Services separate from
those used to provide Cable Service, or to construct, operate or
maintain Telecommunications facilities, or relieve Grantee of its
obligation to comply with any such authorizations that may be
2.2 Use of Right-of-Way
to the District's supervision and control, Grantee may erect,
install, construct, repair, replace, reconstruct, and retain in, on,
over, under, upon, across, and along the Right-of-Way within the
District such wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a
Cable System within the District. Grantee, through this License, is
granted extensive and valuable rights to operate its Cable System for
profit using the District's Right-of-Way in compliance with all
applicable District construction codes and procedures. As trustee
for the public, the District is entitled to fair compensation as
provided for in Section 3 of this License to be paid for these
valuable rights throughout the term of the License.
must follow District established nondiscriminatory requirements for
placement of Cable System facilities in Right-of-Way, including the
specific location of facilities in the Right-of-Way, and must in any
event install Cable System facilities in a manner that minimizes
interference with the use of the Right-of-Way by others, including
others that may be installing communications facilities. Within
limits reasonably related to the District’s role in protecting
public health, safety and welfare, the District may require that
Cable System facilities be installed at a particular time, at a
specific place or in a particular manner as a condition of access to
a particular Right-of-Way; may deny access if Grantee is not willing
to comply with District's requirements; and may remove, or require
removal of, any facility that is not installed by Grantee in
compliance with the requirements established by the District, or
which is installed without prior District approval of the time, place
or manner of installation, and charge Grantee for all the costs
associated with removal; and may require Grantee to cooperate with
others to minimize adverse impacts on the Right-of-Way through joint
trenching and other arrangements.
2.3 Term of License
term of the License granted hereunder shall be ten (10) years,
commencing upon the Effective Date of the License, unless the License
is renewed or is lawfully terminated in accordance with the terms of
this License Agreement and the Cable Act, or is extended by mutual
agreement of the District and Grantee.
2.4 License Nonexclusive
License shall be nonexclusive, and subject to all prior rights,
interests, easements or licenses granted by the District to any
Person to use any property, Right-of-Way, right, interest or license
for any purpose whatsoever, including the right of the District to
use same for any purpose it deems fit, including the same or similar
purposes allowed Grantee hereunder. The District may at any time
grant authorization to use the Right-of-Way for any purpose not
incompatible with Grantee's authority under this License and for such
additional Licenses for Cable Systems as the District deems
2.5 Police Powers
rights hereunder are subject to the police powers of the District to
adopt and enforce ordinances necessary to the safety, health, and
welfare of the public, and Grantee agrees to comply with all laws and
ordinances of general applicability enacted, or hereafter enacted, by
the District or any other legally constituted governmental unit
having lawful jurisdiction over the subject matter hereof. The
District shall have the right to adopt, from time to time, such
ordinances as may be deemed necessary in the exercise of its police
power; provided that such hereinafter enacted ordinances shall be
reasonable and not materially modify the terms of this License. Any
conflict between the provisions of this License and any other present
or future lawful exercise of the District's police powers shall be
resolved in favor of the
2.6 Competitive Equity
The Grantee and the District acknowledge that there is increasing
competition in the video marketplace among cable operators, direct
broadcast satellite providers, telephone companies, broadband content
providers and others; new technologies are emerging that enable the
provision of new and advanced services to District residents; and
changes in the scope and application of the traditional regulatory
framework governing the provision of video services are being
considered in a variety of federal, state and local venues. To
xxxxxx an environment where video service providers using the public
Right-of-Way can compete on a competitively neutral and
nondiscriminatory basis; encourage the provision of new and advanced
services to District residents; promote local communications
infrastructure investments and economic opportunities in the
District; and provide flexibility in the event of subsequent changes
in the law, the Grantee and the District have agreed to the
provisions in this Section, and they should be interpreted and
applied with such purposes in mind.
Video Service Provider.
Notwithstanding any other provision of this Agreement or any other
provision of law, if any Video Service Provider (“VSP”) (i)
enters into any agreement with the District to provide video services
to subscribers in the District, or (ii) otherwise begins to
provide video services to subscribers in the District (with or
without entering into an agreement with the District), the District,
upon written request of the Grantee, shall permit the Grantee to
construct and operate its Cable System and to provide video services
to subscribers in the District under the same agreement and/or under
the same terms and conditions as apply to the new VSP. The Grantee
and the District shall enter into an agreement or other appropriate
authorization (if necessary) containing the same terms and conditions
as are applicable to the VSP within sixty (60) days after the Grantee
submits a written request to the District.
there is no written agreement or other authorization between the new
VSP and the District, the Grantee and the District shall use the
sixty (60) day period to develop and enter into an agreement or other
appropriate authorization (if necessary) that to the maximum extent
possible contains provisions that will ensure competitive equity
between the Grantee and other VSPs, taking into account the terms and
conditions under which other VSPs are allowed to provide video
services to subscribers in the District.
Change in Law. If
there is a change in federal, state or local law that provides for a
new or alternative form of authorization for a VSP to provide video
services to subscribers in the District, or that otherwise changes
the nature or extent of the obligations that the District may request
from or impose on a VSP providing video services to subscribers in
the District, the District agrees that, notwithstanding any other
provision of law, upon Grantee’s written request the District
shall: (i) permit the Grantee to provide video services to
subscribers in the District on the same terms and conditions as are
applicable to a VSP under the changed law; (ii) modify this
Agreement to comply with the changed law; or (iii) modify this
Agreement to ensure competitive equity between the Grantee and other
VSPs, taking into account the conditions under which other VSPs are
permitted to provide video services to subscribers in the District.
The District and the Grantee shall implement the provisions of this
Section within sixty (60) days after the Grantee submits a written
request to the District. Notwithstanding any provision of law that
imposes a time or other limitation on the Grantee’s ability to take
advantage of the changed law’s provisions, the Grantee may exercise
its rights under this Section at any time, but not sooner than thirty
(30) days after the changed law goes into effect.
on This Agreement.
Any agreement, authorization, right or determination to provide video
services to subscribers in the District under Sections 2.6B, 2.6C or
2.6D shall supersede this Agreement, and the Grantee, at its option,
may terminate this Agreement or portions thereof, upon written notice
to the District, without penalty or damages.
term “Video Service Provider” or “VSP” shall mean any entity
using the public Right-of-Way to provide multiple video programming
services to subscribers, for purchase or at no cost, regardless of
the transmission method, facilities, or technology used. A VSP shall
include but is not limited to any entity that provides cable
services, multichannel multipoint distribution services, broadcast
satellite services, satellite-delivered services, wireless services,
and Internet-Protocol based services.
2.7 Familiarity with License
Grantee acknowledges and warrants by acceptance of the rights,
privileges and agreements granted herein, that it has carefully read
and fully comprehends the terms and conditions of this License and is
willing to and does accept all lawful and reasonable risks of the
meaning of the provisions, terms and conditions herein. The Grantee
further acknowledges and states that it has fully studied and
considered the requirements and provisions of this License, and finds
that the same are commercially practicable at this time, and
consistent with all local, State and federal laws and regulations
currently in effect, including the Cable Act.
2.8 Effect of Acceptance
accepting the License, the Grantee: (1) acknowledges and accepts the
District's legal right to issue and enforce the License; (2) accepts
and agrees to comply with each and every provision of this License
subject to Applicable Law; and (3) agrees that the License was
granted pursuant to processes and procedures consistent with
Applicable Law, and that it will not raise any claim to the contrary.
SECTION 3. LICENSE FEE PAYMENT AND FINANCIAL CONTROLS
3.1 License Fee
compensation for the benefits and privileges granted under this
License and in consideration of permission to use the District's
Right-of-Way, Grantee shall within sixty (60) days of the Effective
Date of this agreement pay as a License Fee to the District,
throughout the duration of and consistent with this License, an
amount equal to five percent (5%) of Grantee's Gross Revenues.
License Fee payments to the District shall be computed quarterly for
the preceding calendar quarter ending March 31, June 30, September
30, and December 31. Each quarterly payment shall be due and payable
no later than sixty (60) days after said dates.
3.3 Acceptance of Payment and Recomputation
acceptance of any payment shall be construed as an accord by the
District that the amount paid is, in fact, the correct amount, nor
shall any acceptance of payments be construed as a release of any
claim the District may have for further or additional sums payable or
for the performance of any other obligation of Grantee.
3.4 Quarterly License Fee Reports
payment shall be accompanied by a written report to the District, or
concurrently sent under separate cover, verified by an authorized
representative of Grantee, containing an accurate statement in
summarized form, as well as in detail, of Grantee's Gross Revenues
and the computation of the payment amount. Such reports shall detail
all Gross Revenues of the Cable System.
3.5 Annual License Fee Reports
thirty (30) day’s written notice from the District, Grantee shall,
within sixty (60) days after the end of each year, furnish to the
District a statement stating the total amount of Gross Revenues for
the year and all payments, deductions and computations for the
3.6 License Fees Subject to Audit
reasonable prior written notice and no more than once annually,
during normal business hours at Grantee’s principal business
office, the District shall have the right to inspect the Grantee’s
financial records used to calculate the District’s License fees;
that any such inspection shall take place within two (2) years from
the date the Franchising Authority receives such payment, after which
period any such payment shall be considered final.
3.7 Late Payments
the event any payment due quarterly is not received within forty-five
(45) days from the end of the calendar quarter, Grantee shall pay
interest on the amount due (at the prime rate as listed in the Wall
Street Journal on the date the payment was due), compounded daily,
calculated from the date the payment was originally due until the
date the District receives the payment.
a net License Fee underpayment is discovered as the result of an
audit, Grantee shall pay interest at the rate of the five percent
(5%) per annum, compounded quarterly, calculated from the date each
portion of the underpayment was originally due until the date Grantee
remits the underpayment to the District.
3.9 Alternative Compensation
the event the obligation of Grantee to compensate the District
through License Fee payments is lawfully suspended or eliminated, in
whole or part, then Grantee shall pay to the District compensation
equivalent to the compensation paid to the District by other
similarly situated users of the District's Right-of-Way for Grantee's
use of the District's Right-of-Way, provided that in no event shall
such payments exceed the equivalent of five percent (5%) of Grantee's
Gross Revenues (subject to the other provisions contained in this
License), to the extent consistent with Applicable Law.
3.10 Maximum Legal Compensation
parties acknowledge that, at present, applicable federal law limits
the District to collection of a maximum permissible License Fee of
five percent (5%) of Gross Revenues. In the event that at any time
during the duration of this License, the District is authorized to
collect an amount in excess of five percent (5%) of Gross Revenues,
then this License may be amended unilaterally by the District to
provide that such excess amount shall be added to the License Fee
payments to be paid by Grantee to the District hereunder, provided
that Grantee has received at least ninety (90) days prior written
notice from the District of such amendment,
so long as all cable operators in the District are paying the same
License Fee amount.
3.11 Tax Liability
License Fees shall be in addition to any and all taxes or other
levies or assessments which are now or hereafter required to be paid
by businesses in general by any law of the District, the State or the
United States including, without limitation, sales, use and other
taxes, business license fees or other payments. Payment of the
License Fees under this License shall not exempt Grantee from the
payment of any other license fee, permit fee, tax or charge on the
business, occupation, property or income of Grantee that may be
lawfully imposed by the District. Any other license fees, taxes or
charges shall be of general applicability in nature and shall not be
levied against Grantee solely because of its status as a Cable
Operator, or against Subscribers, solely because of their status as
3.12 Financial Records
agrees to meet with a representative of the District upon request to
review Grantee's methodology of record-keeping, financial reporting,
the computing of License Fee obligations and other procedures, the
understanding of which the District deems necessary for reviewing
reports and records.
3.13 Payment on Termination
this License terminates for any reason, the Grantee shall file with
the District within ninety (90) calendar days of the date of the
termination, a financial statement, certified by an independent
certified public accountant, showing the Gross Revenues received by
the Grantee since the end of the previous fiscal year. The District
reserves the right to satisfy any remaining financial obligations of
the Grantee to the District by utilizing the funds available in
provided by the Grantee.
SECTION 4. ADMINISTRATION AND REGULATION
District shall be vested with the power and right to reasonably
regulate the exercise of the privileges permitted by this License in
the public interest.
in this License shall limit nor expand the District's right of
eminent domain under State law.
4.2 Rates and Charges
of Grantee’s rates and charges related to or regarding Cable
Services shall be subject to regulation by the District to the full
extent authorized by applicable federal, State and local laws.
4.3 Rate Discrimination
of Grantee’s rates and charges shall be published (in the form of a
publicly-available rate card) and be non-discriminatory as to all
Persons and organizations of similar classes, under similar
circumstances and conditions. Grantee
shall apply its rates in accordance with Applicable Law, with
identical rates and charges for all Subscribers receiving identical
Cable Services, without regard to race, color, ethnic or national
origin, religion, age, sex, sexual orientation, marital, military or
economic status, or physical or mental disability or, where
consistent with any requirements of Federal law, or geographic
location within the District. Grantee
shall offer the same Cable Services to all Residential Subscribers at
identical rates to the extent required by Applicable Law and to
Multiple Dwelling Unit Subscribers to the extent required by FCC
rules or applicable Federal law. Grantee
shall permit Subscribers to make any lawful in-residence connections
the Subscriber chooses without additional charge nor penalizing the
Subscriber therefor. However, if any in-home connection requires
service from Grantee due to signal quality, signal leakage or other
factors, caused by improper installation of such in-home wiring or
faulty materials of such in-home wiring, the Subscriber may be
charged reasonable service charges by Grantee. Nothing herein shall
be construed to prohibit:
temporary reduction or waiving of rates or charges in conjunction
with valid promotional campaigns; or,
(B) The offering
of reasonable discounts to senior citizens or economically
disadvantaged citizens; or,
offering of rate discounts for Cable Service; or,
(D) The Grantee from
establishing different and nondiscriminatory rates and charges and
classes of service for Commercial Subscribers, as allowable by
federal law and regulations.
4.4 Filing of Rates and Charges
shall, upon thirty (30) day’s written notice from the District,
provide a complete schedule of applicable rates and charges for Cable
Services provided under this License. Nothing in this subsection
shall be construed to require Grantee to file rates and charges under
temporary reductions or waivers of rates and charges in conjunction
with promotional campaigns.
4.5 Cross Subsidization
shall comply with all Applicable Laws regarding rates for Cable
Services and all Applicable Laws covering issues of cross
4.6 Reserved Authority
Grantee and the District reserve all rights they may have under
the Cable Act and any other relevant provisions of federal, State, or
4.7 License Amendment Procedure
party may at any time seek an amendment of this License by so
notifying the other party in writing. Within thirty (30) days of
receipt of notice, the District and Grantee shall meet to discuss the
proposed amendment(s). If the parties reach a mutual agreement upon
the suggested amendment(s), such amendment(s) shall be submitted to
the District Council for its approval. If so approved by the
District Council and the Grantee, then such amendment(s) shall be
deemed part of this License. If mutual agreement is not reached,
there shall be no amendment.
4.8 Performance Evaluations
District may hold performance evaluation sessions upon ninety (90)
days written notice, provided that such evaluation sessions shall be
held no more frequently than once every two (2) years. All such
evaluation sessions shall be conducted by the District.
evaluation sessions may be held at any time by the District during
the term of this License, upon ninety (90) days written notice to
regular evaluation sessions shall be open to the public and announced
at least two (2) weeks in advance in any manner within the discretion
of the District. Grantee shall also include with or on the
Subscriber billing statements for the billing period immediately
preceding the commencement of the session, written notification of
the date, time, and place of the regular performance evaluation
session, and any special evaluation session as required by the
District, provided Grantee receives appropriate advance notice.
which may be discussed at any evaluation session may include, but are
not limited to, Cable Service rate structures; License Fee payments;
liquidated damages; free or discounted Cable Services; application of
new technologies; Cable System performance; Cable Services provided;
programming offered; Subscriber complaints; privacy; amendments to
this License; judicial and FCC rulings; line extension policies; and
the District or Grantee's rules; provided that nothing in this
subsection shall be construed as requiring the renegotiation of this
evaluations under this subsection, Grantee shall fully cooperate with
the District and shall provide such information and documents
maintained in the ordinary course of business as the District may
reasonably require to perform the evaluation.
4.9 Force Majeure
the event Grantee is prevented or delayed in the performance of any
of its obligations under this License by reason beyond the control of
Grantee, Grantee shall have a reasonable time, under the
circumstances, to perform the affected obligation under this License
or to procure a substitute for such obligation which is satisfactory
to the District. Those conditions which are not within the control
of Grantee include, but are not limited to, natural disasters, civil
disturbances, work stoppages or labor disputes, power outages,
telephone network outages, and severe or unusual weather conditions
which have a direct and substantial impact on the Grantee’s ability
to provide Cable Services in the District and which was not caused
and could not have been avoided by the Grantee which used its best
efforts in its operations to avoid such results.
Grantee believes that a reason beyond its control has prevented or
delayed its compliance with the terms of this License, Grantee shall
provide documentation as reasonably required by the District to
substantiate the Grantee’s claim. If Grantee has not yet cured the
deficiency, Grantee shall also provide the District with its proposed
plan for remediation, including the timing for such cure.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
Grantee shall indemnify, defend and hold harmless the District, 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 or removal of the Cable System, including, but
not limited to, reasonable attorneys’ fees and costs, provided that
the District shall give the Grantee written notice of its obligation
to indemnify and defend the District within ten (10) business days of
receipt of a claim or action pursuant to this Section. If the
District determines that it is necessary for it to employ separate
counsel, the costs for such separate counsel shall be the
responsibility of the District. Grantee
shall not be obligated to indemnify the District to the extent of the
District’s negligence or willful misconduct.
the term of this License Agreement, the Grantee shall, at its own
cost and expense, maintain Comprehensive General Liability Insurance
and provide the District certificates of insurance designating the
District 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 District. The Grantee shall provide workers’
compensation coverage in accordance with applicable law. The Grantee
shall indemnify and hold harmless the District from any workers
compensation claims to which the Grantee may become subject during
the term of this License.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
District 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 Subscriber Privacy
The Grantee shall comply with
all applicable federal and state privacy laws, including Section 631
of the Cable Act and regulations adopted pursuant thereto.
6.3 Subscriber Bills
bills shall be designed in such a way as to present the information
contained therein clearly and comprehensibly to Subscribers, and 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
Subscriber bills as may otherwise be permitted by Section 622(c) of
the Cable Act (47 U.S.C. §542(c)).
SECTION 7. BOOKS AND RECORDS
7.1 Books and Records
the term of this License Agreement, the Grantee agrees that the
District may review the Grantee’s books and records that are
maintained in the ordinary course of business in the License Area to
monitor Grantee’s compliance with the provisions of this License
Agreement, upon reasonable prior written notice to the Grantee, at
the Grantee’s business office, during normal business hours, and
without unreasonably interfering with Grantee’s business
operations. All such documents that may be the subject of an
inspection by the District shall be retained by the Grantee for a
minimum period of three (3) years.
District agrees to treat as confidential any books or records that
constitute proprietary or confidential information under federal or
State law, to the extent Grantee makes the District aware of such
confidentiality. Grantee shall be responsible for clearly and
conspicuously stamping the word "Confidential" on each page
that contains confidential or proprietary information, and shall
provide a brief written explanation as to why such information is
confidential under State or federal law. If the District believes it
must release any such confidential books and records in the course of
enforcing this License, or for any other reason, it shall advise
Grantee in advance so that Grantee may take appropriate steps to
protect its interests. If the District receives a demand from any
Person for disclosure of any information designated by Grantee as
confidential, the District shall, so far as consistent with
Applicable Law, advise Grantee and provide Grantee with a copy of any
written request by the party demanding access to such information
within a reasonable time. Until otherwise ordered by a court or
agency of competent jurisdiction, the District agrees that, to the
extent permitted by State and federal law, it shall deny access to
any of Grantee's books and records marked confidential as set forth
above to any Person. Grantee shall reimburse the District for all
reasonable costs and attorney’s fees incurred in any legal
proceedings pursued under this Section.
7.3 Records Required
shall at all times maintain, and shall furnish to the District upon
30 days written request and subject to Applicable Law:
complete set of maps showing the exact location of all Cable System
equipment and facilities in the Right-of-Way, but excluding detail on
proprietary electronics contained therein and Subscriber drops.
As-built maps including proprietary electronics shall be available at
Grantee's offices for inspection by the District’s authorized
representative(s) or agent(s) and made available to such during the
course of technical inspections as reasonably conducted by the
District. These maps shall be certified as accurate by an
appropriate representative of the Grantee;
copy of all FCC filings on behalf of Grantee, its parent corporations
or Affiliates which relate to the operation of the Cable System in
log of Cable Services added or dropped, Channel changes, number of
Subscribers added or terminated, all construction activity, and total
homes passed for the previous twelve (12) months; and
A list of Cable Services, rates and Channel line-ups.
Subject to subsection 7.2, all information furnished to the District
is public information, and shall be treated as such, except for
information involving the privacy rights of individual Subscribers.
7.4 Copies of Federal and State Reports
thirty (30) days of a written request, Grantee shall submit to the
District copies of all pleadings, applications, notifications,
communications and documents of any kind, submitted by Grantee or its
parent corporation(s), to any federal, State or local courts,
regulatory agencies and other government bodies if such documents
directly relate to the operations of Grantee's Cable System within
the District. Grantee shall not claim confidential, privileged or
proprietary rights to such documents unless under federal, State, or
local law such documents have been determined to be confidential by a
court of competent jurisdiction, or a federal or State agency.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide or
enable the provision of at least the following initial broad
categories of programming to the extent such categories are
(A) Educational programming;
news, weather & information;
(D) General entertainment
(F) Arts, culture and
(G) Foreign language;
news, weather and information; and,
Educational and Government Access, to the extent required by this
8.2 Deletion or Reduction of Broad Programming Categories
shall not delete or so limit as to effectively delete any broad
category of programming within its control without the prior written
consent of the District.
the event of a modification proceeding under federal law, the mix and
quality of Cable Services provided by Grantee on the Effective Date
of this License shall be deemed the mix and quality of Cable Services
required under this License throughout its term.
shall not transmit, or permit to be transmitted over any Channel
subject to its editorial control, any programming which is obscene
under, or violates any provision of, Applicable Law relating to
obscenity, and is not protected by the Constitution of the United
States. Grantee shall be deemed to have transmitted or permitted a
transmission of obscene programming only if a court of competent
jurisdiction has found that any of Grantee's officers or employees or
agents have permitted programming which is obscene under, or
violative of, any provision of Applicable Law relating to obscenity,
and is otherwise not protected by the Constitution of the United
States, to be transmitted over any Channel subject to Grantee's
editorial control. Grantee shall comply with all relevant provisions
of federal law relating to obscenity.
8.4 Parental Control Device
request by any Subscriber, Grantee shall make available a parental
control or lockout device, traps or filters to enable a Subscriber to
control access to both the audio and video portions of any or all
Channels. Grantee shall inform its Subscribers of the availability
of the lockout device at the time of their initial subscription and
periodically thereafter. Any device offered shall be at a rate, if
any, in compliance with Applicable Law.
8.5 Continuity of Service Mandatory
shall be the right of all
Subscribers to continue to receive Cable Service from Grantee insofar
as their financial and other obligations to Grantee are honored and
they are in compliance with Grantee’s terms of services,
residential service agreement or other such provisions. The Grantee
shall act so as to ensure that all
Subscribers receive continuous, uninterrupted Cable Service
regardless of the circumstances. For the purposes of this
subsection, "uninterrupted" does not include short-term
outages of the Cable System for maintenance or testing.
the event of a change of grantee, or in the event a new Cable
Operator acquires the Cable System in accordance with this License,
Grantee shall cooperate with the District, new Licensee or Cable
Operator in maintaining continuity of Cable Service to all
Subscribers. During any transition period, Grantee shall be entitled
to the revenues for any period during which it operates the Cable
System, and shall be entitled to reasonable costs for its services
when it no longer operates the Cable System.
the event Grantee fails to operate the Cable System for four (4)
consecutive days without prior approval of the Manager, or without
just cause, the District may, at its option, operate the Cable System
itself or designate another Cable Operator until such time as Grantee
restores service under conditions acceptable to the District or a
permanent Cable Operator is selected. If the District is required to
fulfill this obligation for Grantee, Grantee shall reimburse the
District for all reasonable costs or damages that are the result of
Grantee's failure to perform.
8.6 Services for the Disabled
shall comply with the Americans with Disabilities Act and any
SECTION 9. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
9.1 Permits and General Obligations
Grantee shall be responsible for obtaining, at its own cost and
expense, all generally applicable permits, licenses, or other forms
of approval 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 Right-of-Way and the rights and reasonable
convenience of property owners who own property that adjoins any such
9.2 Conditions of Street Occupancy
Grades or Lines.
If the grades or lines of any Public Way within the License Area are
lawfully changed at any time during the term of this License
Agreement, then the Grantee shall, upon reasonable advance written
notice from the District (which shall not be less than ten (10)
business days) and at its own cost and expense, protect or promptly
alter or relocate the Cable System, or any part thereof, so as to
conform with any such new grades or lines. If public funds are
available to any other user of the Right-of-Way for the purpose of
defraying the cost of any of the foregoing, the District shall notify
Grantee of such funding and make available such funds to the Grantee.
9.3 Relocation at request of Third Party
Grantee shall, upon reasonable prior written request of any Person
holding a permit issued by the District to move any structure,
temporarily move its wires to permit the moving of such structure;
provided (i) the Grantee may impose a reasonable charge on any Person
for the movement of its wires, and such charge may be required to be
paid in advance of the movement of its wires; and (ii) the Grantee is
given not less than ten (10) business days advance written notice to
arrange for such temporary relocation.
9.4 Restoration of Right-of-Way
in connection with the construction, operation, maintenance, or
repair of the Cable System, the Grantee disturbs, alters, or damages
any Right-of-Way, the Grantee agrees that it shall at its own cost
and expense replace and restore any such Public Way to a condition
reasonably comparable to the condition of the Right-of-Way existing
immediately prior to the disturbance.
9.5 Safety Requirements
Grantee shall, at its own cost and expense, undertake all necessary
and appropriate efforts to maintain its work sites in a safe manner
in order to prevent 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.
9.6 Trimming of Trees and Shrubbery
Grantee shall have the authority to trim trees or other natural
growth overhanging any of its Cable System in the 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.
9.7 Aerial and Underground Construction
the time of Cable System 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 quality. In any region(s) of the License Area
where the transmission or distribution facilities of the respective
public or municipal utilities are both aerial and underground, the
Grantee shall have the discretion to construct, operate, and maintain
all of its transmission and distribution facilities, or any part
thereof, aerially or underground. Nothing in this Section shall be
construed to require the Grantee to construct, operate, or maintain
underground any ground-mounted appurtenances such as Subscriber taps,
line extenders, system passive devices, amplifiers, power supplies,
pedestals, or other related equipment.
9.8 Undergrounding and Beautification
the event all users of the Right-of-Way relocate aerial facilities
underground as part of an undergrounding or neighborhood
beautification project, Grantee shall participate in the planning for
relocation of its aerial facilities contemporaneously with other
utilities. Grantee’s relocation costs shall be included in any
computation of necessary project funding by the municipality or
private parties. Grantee shall be entitled to reimbursement of its
relocation costs from public or private funds raised for the project
and made available to other users of the Right-of-Way.
SECTION 10. CABLE SYSTEM, TECHNICAL STANDARDS AND TESTING
10.1 Subscriber Network
Cable System shall deliver no less than one hundred ten (110)
Channels of video programming services to Subscribers.
must be installed so that all closed captioning programming received
by the Cable System shall include the closed caption signal so long
as the closed caption signal is provided consistent with FCC
standards. Equipment must be installed so that all local signals
received in stereo or with secondary audio tracks are retransmitted
in those same formats.
construction shall be subject to the District's permitting process.
will take prompt corrective action if it finds that any facilities or
equipment on the Cable System are not operating as expected, or if it
finds that facilities and equipment do not comply with the
requirements of this License or Applicable Law.
construction decisions shall be based solely upon legitimate
engineering decisions and shall not take into consideration the
income level of any particular community within the License Area.
shall not be required to obtain permits for construction work related
to the connection and disconnection of Subscribers between the
distribution plant in the public rights of way and the Subscriber’s
residence to the extent such work disturbs no more than 20 feet of
the public right of way.
10.2 Standby Power
Cable System Headend shall be capable of providing at least twelve
(12) hours of emergency operation. In addition, throughout the term
of this License, Grantee shall have a plan in place, along with all
resources necessary for implementing such plan, for dealing with
outages of more than four (4) hours. This outage plan and evidence
of requisite implementation resources shall be presented to the
District no later than thirty (30) days following receipt of a
10.3 Emergency Alert Capability
shall provide an operating Emergency Alert System (“EAS”)
throughout the term of this License in compliance with FCC standards.
10.4 Technical Performance
technical performance of the Cable System shall meet or exceed all
applicable federal (including, but not limited to, the FCC), and
State technical standards, as they may be amended from time to time,
regardless of the transmission technology utilized. The District
shall have the full authority permitted by Applicable Law to enforce
compliance with these technical standards.
10.5 Cable System Performance Testing
(A) Grantee shall, at
Grantee's expense, perform the following tests on its Cable System:
(1) All tests required by
other tests reasonably necessary to determine compliance with
technical standards adopted by the FCC at any time during the term of
this License; and
other tests as otherwise specified in this License.
(B) At a minimum, Grantee's
tests shall include:
(1) Cumulative leakage index
testing of any new construction;
(2) Semi-annual compliance
and proof of performance tests in conformance with generally accepted
in response to Subscriber complaints;
(4) Periodic monitoring
tests, at intervals not to exceed six (6) months, of Subscriber
(field) test points, the Headend, and the condition of standby power
(5) Cumulative leakage index
tests, at least annually, designed to ensure that one hundred percent
(100%) of Grantee's Cable System has been ground or air tested for
signal leakage in accordance with FCC standards.
shall maintain written records of all results of its Cable System
tests, performed by or for Grantee. Copies of such test results will
be provided to the District upon reasonable request.
the FCC no longer requires proof of performance tests for Grantee's
Cable System during the term of this License, Grantee agrees that it
shall continue to conduct proof of performance tests on the Cable
System in accordance with the standards that were in place on the
Effective Date, or any generally applicable standards later adopted,
at least once a year, and provide written results of such tests to
the District upon request.
FCC semi-annual testing is conducted in January/February and
July/August of each year. If the District contacts Grantee prior to
the next test period (i.e.,
before December 15 and June 15 respectively of each year), Grantee
shall provide District with no less than seven (7) days prior written
notice of the actual date(s) for FCC compliance testing. If District
notifies Grantee by the December 15th and June 15th dates that it
wishes to have a representative present during the next test(s),
Grantee shall cooperate in scheduling its testing so that the
representative can be present. Notwithstanding the above, all
technical performance tests may be witnessed by representatives of
shall be required to promptly take such corrective measures as are
necessary to correct any performance deficiencies fully and to
prevent their recurrence as far as possible. Grantee's failure to
correct deficiencies identified through this testing process shall be
a material violation of this License. Sites shall be re-tested
SECTION 11. SERVICE AVAILABILITY, INTERCONNECTION AND SERVICE TO
SCHOOLS AND PUBLIC BUILDINGS
11.1 Service Availability
Except as otherwise provided in herein, Grantee shall provide Cable
Service within seven (7) days of a request by any Person within the
District. For purposes of this Section, a request shall be deemed
made on the date of signing a service agreement, receipt of funds by
Grantee, receipt of a written request by Grantee or receipt by
Grantee of a verified verbal request. Except as otherwise provided
herein, Grantee shall provide such service:
no line extension charge except as specifically authorized elsewhere
in this License Agreement.
a non-discriminatory installation charge for a standard installation,
consisting of a 125 foot drop connecting to an inside wall for
Residential Subscribers, with additional charges for non-standard
installations computed according to a non-discriminatory methodology
for such installations, adopted by Grantee and provided in writing to
non-discriminatory monthly rates for Residential Subscribers.
to Multiple Dwelling Units.
Consistent with this Section 11.1, the Grantee shall offer the
individual units of a Multiple Dwelling Unit all Cable Services
offered to other Dwelling Units in the District and shall
individually wire units upon request of the property owner or renter
who has been given written authorization by the owner; provided,
however, that any such offering is conditioned upon the Grantee
having legal access to said unit in the form of an access and wiring
agreement that is mutually satisfactory to the Grantee and the
property owner. The District acknowledges that the Grantee cannot
control the dissemination of particular Cable Services beyond the
point of demarcation at a Multiple Dwelling Unit.
Charges for Extensions of Service.
Grantee agrees to extend its Cable System to all persons living in
areas with a residential density of forty-five (45) residences per
mile of Cable System plant and if the area is within 1,320
cable-bearing strand feet of Grantee’s existing distribution plant.
If the residential density is less than forty-five (45) residences
per 5,280 cable-bearing strand feet of trunk or distribution cable,
service may be made available on the basis of a capital contribution
in aid of construction, including cost of material, labor and
easements. For the purpose of determining the amount of capital
contribution in aid of construction to be borne by the Grantee and
Subscribers in the area in which service may be expanded, the Grantee
will contribute an amount equal to the construction and other costs
per mile, multiplied by a fraction whose numerator equals the actual
number of residences per 5,280 cable-bearing strand feet of its trunk
or distribution cable and whose denominator equals forty-five (45).
Subscribers who request service hereunder will bear the remainder of
the construction and other costs on a pro rata basis. The Grantee may
require that the payment of the capital contribution in aid of
construction borne by such potential Subscribers be paid in advance.
11.2 Connection of Public Facilities
shall, at no cost to the District, provide one outlet of Basic
Service to all District owned and occupied buildings, schools and
public libraries located
in areas where Grantee provides Cable Service, so long as these
facilities are already served or are located within 125 feet from the
distribution point on the Cable System from which cable service can
be provided to these facilities.
For purposes of this subsection, “school” means all
State-accredited K-12 public and private schools. Such obligation to
provide free Cable Service shall not extend to areas of District
buildings where the Grantee would normally enter into a commercial
contract to provide such Cable Service (e.g.,
courses, airport restaurants and concourses, and recreation center
work out facilities). Outlets of Basic Service provided in
accordance with this subsection may be used to distribute Cable
Services throughout such buildings, provided such distribution can be
accomplished without causing Cable System disruption and general
technical standards are maintained. Such Cable Service shall not be
located in public waiting areas or used to entertain the public nor
shall they be used in a way that might violate copyright laws. The
outlets may only be used for lawful purposes. The Cable Service
provided shall not be distributed beyond the originally installed
outlets without authorization from Grantee, which shall not be
unreasonably withheld. Grantee is not required to provide free
reception equipment for any complimentary account provided pursuant
to this subsection.
Grantee does not waive
any rights under applicable law regarding complimentary service.
Should Grantee elect to begin offsetting the value of complimentary
service against License fees, Grantee shall first provide License
Authority with ninety (90) days prior written notice.
SECTION 12. LICENSE VIOLATIONS
12.1 Procedure for Remedying License Violations
If the District reasonably believes that Grantee has failed to
perform any obligation under this License or has failed to perform in
a timely manner, the District shall notify Grantee in writing,
stating with reasonable specificity the nature of the alleged
default. Grantee shall have thirty (30) days from the receipt of
such notice to:
to the District, contesting the District's assertion that a default
has occurred, and requesting a meeting in accordance with subsection
the default; or,
the District that Grantee cannot cure the default within the thirty
(30) days, because of the nature of the default. In the event the
default cannot be cured within thirty (30) days, Grantee shall
promptly take all reasonable steps to cure the default and notify the
District in writing and in detail as to the exact steps that will be
taken and the projected completion date. In such case, the District
may set a meeting in accordance with subsection (B) below to
determine whether additional time beyond the thirty (30) days
specified above is indeed needed, and whether Grantee's proposed
completion schedule and steps are reasonable.
Grantee does not cure the alleged default within the cure period
stated above, or by the projected completion date under subsection
(A)(3), or denies the default and requests a meeting in accordance
with (A)(1), or the District orders a meeting in accordance with
subsection (A)(3), the District shall set a meeting to investigate
said issues or the existence of the alleged default. The District
shall notify Grantee of the meeting in writing and such meeting shall
take place no less than thirty (30) days after Grantee's receipt of
notice of the meeting. At the meeting, Grantee shall be provided an
opportunity to be heard and to present evidence in its defense.
after the meeting, the District determines that a default exists, the
District shall order Grantee to correct or remedy the default or
breach within fifteen (15) days or within such other reasonable time
frame as the District shall determine. In the event Grantee does not
cure within such time to the District’s reasonable satisfaction,
the District may:
the revocation of this License pursuant to the procedures in
subsection 12.2; or,
any other legal or equitable remedy available under this License or
any Applicable Law.
determination as to whether a violation of this License has occurred
shall be within the discretion of the District, provided that any
such final determination may be subject to appeal to a court of
competent jurisdiction under Applicable Law.
addition to revocation in accordance with other provisions of this
License, the District may revoke this License and rescind all rights
and privileges associated with this License in the following
circumstances, each of which represents a material breach of this
(1) If Grantee fails to perform any material obligation under this
License or under any other agreement, ordinance or document regarding
the District and Grantee;
Grantee willfully fails for more than forty-eight (48) hours to
provide continuous and uninterrupted Cable Service;
(3) If Grantee attempts to evade any material provision of this
License or to practice any fraud or deceit upon the District or
(4) If Grantee becomes
insolvent, or if there is an assignment for the benefit of Grantee's
Grantee makes a material misrepresentation of fact in the application
for or negotiation of this License.
the procedures set forth in subsection 12.1 and prior to forfeiture
or termination of the License, the District shall give written notice
to the Grantee of its intent to revoke the License and set a date for
a revocation proceeding. The notice shall set forth the exact nature
of the noncompliance.
proceeding under the paragraph above shall be conducted by the
District Council and open to the public. Grantee shall be afforded
at least forty-five (45) days prior written notice of such
such proceeding, Grantee shall be provided a fair opportunity for
full participation, including the right to be represented by legal
counsel, to introduce evidence, and to question witnesses. A
complete verbatim record and transcript shall be made of such
proceeding and the cost shall be shared equally between the parties.
The District Council shall hear any Persons interested in the
revocation, and shall allow Grantee, in particular, an opportunity to
state its position on the matter.
ninety (90) days after the hearing, the District Council shall
determine whether to revoke the License and declare that the License
if the breach at issue is capable of being cured by Grantee, direct
Grantee to take appropriate remedial action within the time and in
the manner and on the terms and conditions that the District Council
determines are reasonable under the circumstances. If the District
determines that the License is to be revoked, the District shall set
forth the reasons for such a decision and shall transmit a copy of
the decision to the Grantee. Grantee shall be bound by the
District’s decision to revoke the License unless it appeals the
decision to a court of competent jurisdiction within fifteen (15)
days of the date of the decision.
(3) Grantee shall be
entitled to such relief as the Court may deem appropriate.
District Council may at its sole discretion take any lawful action
which it deems appropriate to enforce the District's rights under the
License in lieu of revocation of the License.
12.3 Procedures in the Event of Termination or Revocation
this License expires without renewal after completion of all
processes available under this License and federal law or is
otherwise lawfully terminated or revoked, the District may, subject
to Applicable Law:
Grantee to maintain and operate its Cable System on a month-to-month
basis or short-term extension of this License for not less than six
(6) months, unless a sale of the Cable System can be closed sooner or
Grantee demonstrates to the District's satisfaction that it needs
additional time to complete the sale; or
Grantee's Cable System in accordance with the procedures set forth in
subsection 12.4, below.
the event that a sale has not been completed in accordance with
subsections (A)(1) and/or (A)(2) above, the District may order the
removal of the above-ground Cable System facilities and such
underground facilities from the District at Grantee's sole expense
within a reasonable period of time as determined by the District. In
removing its plant, structures and equipment, Grantee shall refill,
at is own expense, any excavation that is made by it and shall leave
all Right-of-Way, public places and private property in as good
condition as that prevailing prior to Grantee's removal of its
equipment without affecting the electrical or telephone cable wires
or attachments. The indemnification and insurance provisions shall
remain in full force and effect during the period of removal, and
Grantee shall not be entitled to, and agrees not to request,
compensation of any sort therefore.
Grantee fails to complete any removal required by subsection 12.3 (B)
to the District’s satisfaction, after written notice to Grantee,
the District may cause the work to be done and Grantee shall
reimburse the District for the costs incurred within thirty (30) days
after receipt of an itemized list of the costs.
(D) The District may seek legal and equitable relief to enforce the
provisions of this License.
12.4 Purchase of Cable System
at any time this License is revoked, terminated, or not renewed upon
expiration in accordance with the provisions of federal law, the
District shall have the option to purchase the Cable System.
District may, at any time thereafter, offer in writing to purchase
Grantee's Cable System. Grantee shall have thirty (30) days from
receipt of a written offer from the District within which to accept
or reject the offer.
any case where the District elects to purchase the Cable System, the
purchase shall be closed within one hundred twenty (120) days of the
date of the District's audit of a current profit and loss statement
of Grantee. The District shall pay for the Cable System in cash or
certified funds, and Grantee shall deliver appropriate bills of sale
and other instruments of conveyance.
(D) For the purposes of this
subsection, the price for the Cable System shall be determined as
the case of the expiration of the License without renewal, at fair
market value determined on the basis of Grantee's Cable System valued
as a going concern, but with no value allocated to the License
itself. In order to obtain the fair market value, this valuation
shall be reduced by the amount of any lien, encumbrance, or other
obligation of Grantee which the District would assume.
(2) In the case of
revocation for cause, the equitable price of Grantee's Cable System.
12.5 Receivership and Foreclosure
the option of the District, subject to Applicable Law, this License
may be revoked one hundred twenty (120) days after the appointment of
a receiver or trustee to take over and conduct the business of
Grantee whether in a receivership, reorganization, bankruptcy or
other action or proceeding, unless:
(1) The receivership or
trusteeship is vacated within one hundred twenty (120) days of
receivers or trustees have, within one hundred twenty (120) days
after their election or appointment, fully complied with all the
terms and provisions of this License, and have remedied all defaults
under the License. Additionally, the receivers or trustees shall
have executed an agreement duly approved by the court having
jurisdiction, by which the receivers or trustees assume and agree to
be bound by each and every term, provision and limitation of this
there is a foreclosure or other involuntary sale of the whole or any
part of the plant, property and equipment of Grantee, the District
may serve notice of revocation on Grantee and to the purchaser at the
sale, and the rights and privileges of Grantee under this License
shall be revoked thirty (30) days after service of such notice,
District has approved the transfer of the License, in accordance with
the procedures set forth in this License and as provided by law; and
purchaser has covenanted and agreed with the District to assume and
be bound by all of the terms and conditions of this License.
12.6 No Monetary Recourse Against the District
shall not have any monetary recourse against the District or its
officers, officials, boards, commissions, agents or employees for any
loss, costs, expenses or damages arising out of any provision or
requirement of this License or the enforcement thereof, in accordance
with the provisions of applicable federal, State and local law. The
rights of the District under this License are in addition to, and
shall not be read to limit, any immunities the District may enjoy
under federal, State or local law.
12.7 Alternative Remedies
No provision of this License shall be deemed to bar the right of the
District to seek or obtain judicial relief from a violation of any
provision of the License or any rule, regulation, requirement or
directive promulgated thereunder. Neither the existence of other
remedies identified in this License nor the exercise thereof shall be
deemed to bar or otherwise limit the right of the District to recover
monetary damages for such violations by Grantee, or to seek and
obtain judicial enforcement of Grantee's obligations by means of
specific performance, injunctive relief or mandate, or any other
remedy at law or in equity.
12.8 Effect of Abandonment
the Grantee abandons its Cable System during the License term, or
fails to operate its Cable System in accordance with its duty to
provide continuous service, the District, at its option, may operate
the Cable System; designate another entity to operate the Cable
System temporarily until the Grantee restores service under
conditions acceptable to the District, or until the License is
revoked and a new Licensee is selected by the District; or obtain an
injunction requiring the Grantee to continue operations. If the
District is required to operate or designate another entity to
operate the Cable System, the Grantee shall reimburse the District or
its designee for all reasonable costs, expenses and damages incurred.
12.9 What Constitutes Abandonment
District shall be entitled to exercise its options in subsection 12.8
Grantee fails to provide Cable Service in accordance with this
License over a substantial portion of the License Area for four (4)
consecutive days, unless the District authorizes a longer
interruption of service; or
Grantee, for any period, willfully and without cause refuses to
provide Cable Service in accordance with this License.
SECTION 13. LICENSE RENEWAL AND TRANSFER
District and Grantee agree that any proceedings undertaken by the
District that relate to the renewal of the License shall be governed
by and comply with the provisions of Section 626 of the Cable Act,
unless the procedures and substantive protections set forth therein
shall be deemed to be preempted and superseded by the provisions of
any subsequent provision of federal or State law.
addition to the procedures set forth in said Section 626(a), the
District agrees to notify Grantee of the completion of its
assessments regarding the identification of future cable-related
community needs and interests, as well as the past performance of
Grantee under the then current License term. Notwithstanding
anything to the contrary set forth herein, Grantee and District agree
that at any time during the term of the then current License, while
affording the public adequate notice and opportunity for comment, the
District and Grantee may agree to undertake and finalize negotiations
regarding renewal of the then current License and the District may
grant a renewal thereof. Grantee and District consider the terms set
forth in this subsection to be consistent with the express provisions
of Section 626 of the Cable Act.
the Franchise expire without a mutually agreed upon renewed License
Agreement and Grantee and District are engaged in an informal or
formal renewal process, the License shall continue on a
month-to-month basis, with the same terms and conditions as provided
in the License, and the Grantee and District shall continue to comply
with all obligations and duties under the License.
13.2 Transfer of Ownership or Control
the Grantee nor any other Person may transfer the Cable System or the
License without the prior written consent of the District, which
consent shall not be unreasonably withheld or delayed. No transfer
of control of the Grantee, defined as an acquisition of 51% or
greater ownership interest in Grantee, shall take place without the
prior written consent of the District, which consent shall not be
unreasonably withheld or delayed. No consent shall be required,
however, for (i) a transfer in trust, by mortgage, hypothecation, or
by assignment of any rights, title, or interest of the Grantee in the
License or in the Cable System in order to secure indebtedness, or
(ii) a transfer to an entity directly or indirectly owned or
controlled by Comcast Corporation. Within thirty (30) days of
receiving a request for consent, the District shall, in accordance
with FCC rules and regulations, notify the Grantee in writing of the
additional information, if any, it requires to determine the legal,
financial and technical qualifications of the transferee or new
controlling party. If the District has not taken final action on the
Grantee’s request for consent within one hundred twenty (120) days
after receiving such request, consent shall be deemed granted.
SECTION 14. SEVERABILITY
any Section, subsection, paragraph, term or provision of this License
is determined to be illegal, invalid or unconstitutional by any court
or agency of competent jurisdiction, such determination shall have no
effect on the validity of any other Section, subsection, paragraph,
term or provision of this License, all of which will remain in full
force and effect for the term of the License.
SECTION 15. MISCELLANEOUS PROVISIONS
15.1 Preferential or Discriminatory Practices Prohibited
DISCRIMINATION IN EMPLOYMENT.
In connection with the performance of work under this License, the
Grantee agrees not to refuse to hire, discharge, promote or demote,
or discriminate in matters of compensation against any Person
otherwise qualified, solely because of race, color, religion,
national origin, gender, age, military status, sexual orientation,
marital status, or physical or mental disability; and the Grantee
further agrees to insert the foregoing provision in all subcontracts
hereunder. Throughout the term of this License, Grantee shall fully
comply with all equal employment or non-discrimination provisions and
requirements of federal, State and local laws, and in particular, FCC
rules and regulations relating thereto.
the term of the License, each party shall maintain and file with the
other a local address for the service of notices by mail. All notices
shall be sent overnight delivery postage prepaid to such respective
address and such notices shall be effective upon the date of mailing.
These addresses may be changed by the District or the Grantee by
written notice at any time. At the Effective Date of this License:
Grantee's address shall be:
OF COLORADO IX, LLC
X. Xxxxx Xxx.
Government Affairs Dept.
District's address shall be:
West Metro District
X. Xxxxxxxxxx Xxxx.
Xxxx, XX 00000
15.3 Descriptive Headings
headings and titles of the Sections and subsections of this License
are for reference purposes only, and shall not affect the meaning or
interpretation of the text herein.
15.4 Binding Effect
License shall be binding upon the parties hereto, their permitted
successors and assigns.
15.5 No Joint Venture
Nothing herein shall be deemed
to create a joint venture or principal-agent relationship between the
parties, and neither party is authorized to, nor shall either party
act toward third Persons or the public in any manner which would
indicate any such relationship with the other.
failure of the District at any time to require performance by the
Grantee of any provision hereof shall in no way affect the right of
the District hereafter to enforce the same. Nor shall the waiver by
the District of any breach of any provision hereof be taken or held
to be a waiver of any succeeding breach of such provision, or as a
waiver of the provision itself or any other provision.
15.7 Reasonableness of Consent or Approval
under this License “reasonableness” is the standard for the
granting or denial of the consent or approval of either party hereto,
such party shall be entitled to consider public and governmental
policy, moral and ethical standards as well as business and economic
15.8 Entire Agreement
License and all Exhibits represent the entire understanding and
agreement between the parties hereto with respect to the subject
matter hereof and supersede all prior oral negotiations between the
WITNESS WHEREOF, this License is signed in the name of Pueblo West
Metropolitan District, Colorado this _____day of _____________, 2019.
PUEBLO WEST METROPOLITAN
and approved this _____ day of ____________, 2019.
OF COLORADO IX, LLC