Interim Open Video Systems Agreement

INTERIM OPEN VIDEO SYSTEMS AGREEMENT
Between
THE DISTRICT OF COLUMBIA
and
STARPOWER COMMUNICATIONS, LLC

October 26, 1998

INTERIM OPEN VIDEO SYSTEMS AGREEMENT

This Interim Open Video Systems Agreement (“Agreement”) is hereby entered into this 26th day of October, 1998, by and between STARPOWER COMMUNICATIONS, LLC (“Starpower”), a Delaware limited liability company having its principal place of business at 1130 Connecticut Avenue, NW, Suite 400, Washington, DC 20036, and the government of the DISTRICT OF COLUMBIA (the “City”).

W I T N E S S E T H:

WHEREAS, Starpower is in the business of providing OVS Services to residential and commercial customers; and

WHEREAS, Starpower will operate as an OVS Operator in the City; and

WHEREAS, Starpower is certificated by the Federal Communications Commission (“FCC”) to offer OVS Services in the City; and

WHEREAS, Starpower will either construct its own or lease fiber·optic bandwidth in order to provide its OVS Services in the City; and

WHEREAS, Starpower has agreed to provide certain Public, Educational and Governmental Channels (“PEG Channels”) as part of its OVS Services; and

WHEREAS, Starpower has agreed to pay the City a percentage of the revenues it receives from the provision of OVS Services in the City and a contribution to the City’s acquisition, lease or other provision of PEG facilities, equipment and services; and

WHEREAS, Starpower has agreed to the provisions herein regarding its provision of OVS Services in the City; and

WHEREAS, Starpower and the City have agreed to undertake good faith negotiations for a final OVS agreement; and

WHEREAS, the City believes that Starpower’s provision of OVS Services pursuant to this interim OVS Agreement will further competition and facilitate consumer choice and therefore furthers the public interest in cable and cable related services.

NOW THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound, the City and Starpower hereby enter into this interim OVS Agreement, authorizing Starpower to provide OVS Services in the City, subject to the following conditions:


Section 1.1 ·· DEFINITIONS

The following terms shall have the following meaning:

1. "Access Channel" or “PEG Access Channel” means a channel of Public, Educational or Governmental programming which is equivalent to or the same as a PEG Access Channel carried on the Incumbent cable operator’s cable system that Starpower shall make available on its System, at no charge, for public, educational or governmental use, as provided in Section 1.12  and Exhibit A of this Agreement.
2. “Affiliate” shall have the same meaning as set forth in the Rules and Regulations of the FCC which govern the provision of OVS Services as set forth in 47 C.F. R. § 76.1500(g).
3. "Agreement" means this Interim Agreement, together with the Exhibits attached hereto and all amendments or modifications hereof.
4. "Cable Communications System" means a "cable system" as defined in Section 602(7) of the Cable Act.
5. "Cable Operator" means any "cable operator" as defined in Section 602(5) of the Cable Act.
6. "Cable Service" means (1) the one-way transmission to Subscribers of video programming or other programming service and (ii) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
7. "Cable Service Distributor" shall include any Person who distributes any video programming service(s) on a retail basis to residences or businesses, such as a Cable Operator or operator of any MMDS, MDS, MATV, SMATV, DBS, OVS or similar system.
8. "Channel" means a band of frequencies in the electromagnetic spectrum, or any other means of transmission (including, without limitation, optical fibers or any other means now available or that may become available), which is capable of carrying a video programming Signal or an audio programming Signal.  In an analog system, the term "channel" shall be equal to 6 MHz of bandwidth.
9. “City” shall mean the District of Columbia or, as appropriate in the case of specific provisions of this Agreement, any board, bureau, authority, agency, commission, department of, or any other entity of or acting on behalf of the District of Columbia, or any other officer, official, employee, or agent thereof, any designee of any of the foregoing, or any successor thereto.
10. "Council" means the Council of the District of Columbia, the Council's designees or any successor thereto.
11. "Effective Date" means the date of approval of this OVS Agreement by the Financial Responsibility and Management Assistance Authority.
12. "Executive Director" means the Executive Director of the Office of Cable Television and Telecommunications, the Executive Director's designees, or any successor to the executive powers of the present Executive Director.
13. “FCC" means the Federal Communications Commission, its designee, or any successor thereto.
14. "Governmental Channel" means an Access Channel on the Incumbent cable operator’s cable system, which Starpower shall make available on its System, at no charge, for the City's use, as provided in Section 1.17 of this Agreement.
15.

"Gross Revenue" means all revenue which is received, directly or indirectly, by Starpower and by each Affiliated Person which is derived from the distribution of any OVS Service on the System in the City or the provision of any OVS Service Related Activity in connection with the System, including, without limitation, all revenue which is received by Starpower and by any Affiliated Person from Video Programming Providers in connection with their distribution of Video Programming on the System and the value of any free services provided by Starpower (other than those authorized or required by this OVS Agreement or provided at the discretion of Starpower as a contribution to a charitable or other organization exempt from taxation as an entity described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended).

Gross Revenue shall not include: (i) the revenue which is received by Starpower or by any Affiliated Person from or in connection with the distribution of any product or service, including but not limited to any Telecommunications Service, other than OVS Services which are provided by Starpower or by any Affiliated Person over Starpower's OVS System, as defined herein; (ii) the revenue which is received by any Video Programming Provider from or in connection with the distribution of any Video Programming or other programming on the System; (iii) the revenue of Starpower, any Affiliated Person(s) or any other Person which is received directly from the sale of any merchandise through any OVS Service distributed over the System (other than that portion of such revenue which represents or can be attributed to a Subscriber fee or a payment for the use of the System for the sale of such merchandise, which portion shall be included in Gross Revenue); (iv) taxes imposed by law on Subscribers which Starpower or any Affiliated Person is obligated to collect; (v) amounts collected by Starpower or any Affiliated Person from Subscribers on behalf of Access Channel programmers, to the extent that all of the amounts collected are passed on by Starpower to said programmers; (vi) any investment income earned by Starpower; (vii) the revenue of any Affiliated Person which represents standard and reasonable amounts paid by Starpower to said Affiliated Person for ordinary and necessary business expenses of Starpower, including, without limitation, professional service fees and insurance or bond premiums; (viii) to the extent consistent with generally accepted accounting principles, consistently applied, bad debt write·offs; and (ix) any other exclusions from gross revenues expressly set forth under the FCC's OVS rules, it being the intent that Gross Revenue shall include the maximum amount of revenues for purposes of determining the compensation to the City consistent with applicable law.

16.

“Incumbent” shall mean the Cable Operator in existence and duly authorized by the City to operate in the City as of the Effective Date of the Agreement.
17. "Liability" means any damage or loss to any real or personal property, of, or any injury to or death of, any Person or the City.
18. "Mayor" means the chief executive officer of the City, the Mayor's designees, or any successor to the executive powers of the present Mayor.
19. “Minority Owned Business” or “MBE” means a business enterprise of which at least 51 percent of the ownership and control is held by individuals who are members of a minority. Minority includes, but is not limited to, African Americans, Hispanic Americans, Native Americans, and Asian Americans.
20. "Office" or “Cable Office” means the Office of Cable Television & Telecommunications, its designees, or any successor to the powers of the present Office of Cable Television & Telecommunications.
21. “Open Video System” or “OVS” shall mean a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide Video Programming to multiple subscribers within the City and which has received a Certificate from the FCC pursuant to 47 C.F.R. § 76.1502.
22. “OVS Footprint” means the area of the City in which Starpower is authorized by the FCC to operate an Open Video System.
23. "OVS Gross Revenue Fee" means the compensation due from Starpower to the City under Section 1.21 of the Agreement.
24. “OVS Operator” shall mean any entity which provides OVS Service in the City pursuant to a Certificate approved by the FCC using a broadband fiber optic distribution system or systems to distribute its own Video Programming,  an Affiliate’s Video Programming or the Video Programming of unaffiliated Video Programming Providers (“VPPs”) directly to subscribers in the City.
25. “OVS Service” means any Video Programming service whether produced by Starpower or any other Person, which is offered to any Person by Starpower in conjunction with, or distributed over, the System, which is to be operated by Starpower pursuant to this OVS Agreement.
26. “OVS Service Related Activity” means any activity or function associated with the production or distribution of any OVS Service over the System by Starpower, including, without limitation, use of studio or other facilities or equipment, billing, audience promotion or installation or lease of equipment.
27. "Person" shall mean any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit, but shall not mean the City.
28. “Protected Class Business” or “PC” means any small business or a business enterprise of which at least 51% of the ownership and control is held by individuals who are female, disabled, or Vietnam era handicapped veterans, and of which 51% of the net profit or loss accrues to such individuals.
29. “PSC” means the Public Service Commission of the District of Columbia.
30. “Public Channel” means a PEG Channel which Starpower shall make available on the System for distribution of Service by the Public Access Corporation.
31. “Public, Educational and Governmental Channels” or “PEG Channels” shall mean the channels on a duly licensed cable television system within the City which have been reserved for public, educational or governmental use.     
32. "Public Access Corporation" means the Public Access Corporation of the District of Columbia, its designees, or any successor to the powers of the Public Access Corporation in existence as of the effective date of this Agreement.
33. "Starpower" means Starpower Communications, LLC.
34. "Streets" means the surface of, and the space above and below, any and all streets, avenues, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, docks, bulkheads, wharves, piers, public grounds and public places or waters within and belonging to the City and any other property within the City to the extent to which there exist public easements or public rights of way.
35. "Subscriber" means any Person lawfully receiving any Service provided by Starpower or any Affiliated Person by means of or in conjunction with the System, whether or not a fee is paid for such service.
36. "System" means the open video system, which is to be operated by Starpower pursuant to this Agreement.
37. “Telecommunications” means the transmission between or among points specified by the user, of information of the user’s choosing, without change in the form and content of the information as sent and received.
38. "Telecommunications Service(s)" means the offering of telecommunications services by Starpower or any Affiliated Person within the City 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, except that this term does not include "OVS Service."  Such Telecommunications Services include, without limitation, local, long distance and international voice telephone services and data transmission services, including Internet services.
39. "Telecommunications System" means an electronic system for voice, data or image communications, including any associated transmission and switching equipment located in City streets and which transmits Telecommunications Services.
40. "Title VI Cable Operator(s)" means any or all of the operator(s) of the franchised Cable Communications System in the City.
41. “Video Programming” shall mean programming provided by, or generally comparable to programming provided by, a television broadcast station.
42. “Video Programming Provider” or “VPP” shall mean any multi·channel video programming distributor with the right under the copyright laws to select and contract for carriage of specific Video Programming on an Open Video System who purchases OVS Transmission Services from the OVS Provider for the distribution of Video Programming to VPP subscribers in the City and who is not an Affiliate of the OVS Operator.

Section 1.2 ·· PROVISION OF OVS SERVICES

a. Parties’ Commitment.  This OVS Agreement sets forth the parties’ agreement with respect to the System which was certified by the FCC to operate in the City by the order of the FCC on January 26, 1998. 
b. Starpower Authorization.  The parties agree that Starpower is authorized by the FCC to provide OVS Services to residential and commercial customers in the City, including the provision of both OVS Programming Services and OVS Transmission Services.
c. OVS Governing Rules.  Starpower shall provide such OVS Services pursuant to the Rules and Regulations of the FCC, as codified at 47 C.F.R. § 1500,et seq., which govern open video services.
d. Not a Cable Communications System.  This Agreement in no way authorizes Starpower to operate as a Cable Communications System as defined by federal law.  In the event that Starpower seeks to operate a Cable System as an alternative to its OVS Services, Starpower shall be subject to, and comply with, applicable federal and City cable television franchising laws and regulations.  Nothing in this OVS Agreement shall preclude Starpower from applying to the City for a franchise to operate a Cable System to serve subscribers using facilities constructed in public rights·of·way.

Section 1.3 ·· TERM OF AGREEMENT

The term of this OVS Agreement shall be one (1) year commencing upon the Effective Date and, in the event that prior to the expiration of such term Starpower and the City have not negotiated a final OVS agreement, this OVS Agreement shall be subject to automatic renewal for one successive six (6) month term and to renewal by mutual consent of the parties for successive six (6) month terms thereafter.

Section 1.4 – CONTINUED NEGOTIATIONS

The parties shall continue to negotiate in good faith to agree upon a final OVS agreement pursuant to which Starpower would continue to offer its OVS Service in the City.

Section 1.5 – EXECUTION AND EFFECTIVE DATE OF AGREEMENT

This Agreement shall be executed by the signing of the Mayor, or his designated representative, and Starpower, as authorized by the Mayorupon passage by the  of a resolution approving this OVS Agreement, and shall be effective as of the date of approval by the Financial Responsibility and Management Assistance Authority.

Section 1.6 – TERMINATION NOT A WAIVER

The termination of this Agreement shall not, for any reason, operate as a waiver or release of any obligation of Starpower or any other Person, as applicable.

Section 1.7 – CONDITIONS AND LIMITATIONS
a. Public Works and Improvements. Nothing in this Agreement shall abrogate the right of the City to perform any public works or public improvements of any description, including, without limitation, all work authorized by the Washington Metropolitan Area Transit Authority.  In the event that any facilities constructed by Starpower as part of the System interfere with the construction, operation, maintenance, or repair of such public works or public improvements, the City shall provide reasonable notice to Starpower and Starpower shall, at its own cost and expense, protect or promptly alter or relocate the System, or any part thereof, as directed by the City.  The City shall cooperate with Starpower in identifying appropriate new locations for the relocated facilities and issuing permits and approvals to accomplish such relocation.  In the event that Starpower refuses or neglects to so protect, alter, or relocate all or part of the System, the City shall have the right to break through, remove, alter, or relocate all or any part of the System without incurring any Liability to Starpower excluding negligence on the part of the City and Starpower shall pay to the City the costs incurred in connection with such breaking through, removal, alteration, or relocation.
b. No Waiver.Nothing in this Agreement shall be construed as a waiver of any codes or ordinances of the City or of the City's right to require Starpower or any Person utilizing the System to secure the appropriate permits or authorizations for such use, provided that no fee or charge may be imposed upon Starpower for any such permit or authorization, other than the standard fees or charges generally applicable to all Persons for such permits or authorizations, and any such standard fee or charge shall not be considered an "OVS Gross Revenue Fee" and shall not be an offset against the compensation Starpower is required to pay to the City.
c. No Release. Nothing in this Agreement shall be construed as a waiver or release of the rights of the City in and to the Streets.  In the event that all or part of the Streets within the City are eliminated, discontinued and closed, all rights and privileges granted pursuant to this Agreement with respect to such Streets, or any part thereof so eliminated, discontinued and closed, shall cease upon the date of the final adoption of the City eliminating, discontinuing and closing such Streets, or the effective date of such final adoption, whichever is later, provided that, if such elimination, discontinuance and closing of any Street is undertaken for the benefit of any private Person, the City shall, as appropriate, condition its consent to such elimination, discontinuance and closing of such Street on the agreement of such private Person to (i) grant Starpower the right to continue to occupy and use such Street or (ii) reimburse Starpower for the reasonable costs to relocate the affected part of the System.

Section 1.8 – INTERFERENCE

In the operation of the System, Starpower shall not interfere with any wiring or activities of any Cable Services Distributor within any building except as permitted by federal or City law.

Section 1.9 ·· SUBSEQUENT ACTION; AMENDMENT OF THE AGREEMENT

a. Changes in Governing Law.  To the extent that any statute, rule, regulation, ordinance or any other law is enacted, modified, or repealed in any way during the term of this OVS Agreement so as to require any change in the rights or obligations of the parties, the City and Starpower shall enter into good faith negotiations so as to amend this OVS Agreement to reflect such enactment, modification or repeal.
b. Changes in Incumbent Cable Operator Franchise.  Starpower acknowledges that the City is currently in the process of cable television license renewal negotiations with District Cablevision and that, pursuant to the rules and regulations of the FCC, the outcome of those negotiations may require amendment to certain provisions of this OVS Agreement.  Should such an amendment be deemed necessary by the parties, Starpower and the City shall enter into good faith negotiations so as to amend this OVS Agreement as appropriate.

Section 1.10 ·· NON·EXCLUSIVITY OF OVS AGREEMENT

This OVS Agreement shall not affect the right of the City to issue to any other person or company a similar agreement to provide OVS Services and/or other forms of Video Programming services in the City.  Starpower hereby acknowledges the City’s right to issue such additional agreements.

Section 1.11 ·· TRANSFER OF INTERESTS

No person who has an ownership interest exceeding five percent (5%) in the Starpower OVS System shall transfer, sell, assign, or otherwise dispose of the interest so that the person’s ownership interest shall be less than five percent (5%), no person shall purchase or otherwise acquire an ownership interest exceeding five percent (5%), and Starpower may not assign, this OVS Agreement to any entity other than an Affiliate, without the written consent of the City, which shall not be unreasonably withheld or delayed.  Starpower shall notify the City in writing at least sixty (60) days in advance of any assignment of this OVS Agreement to any person, company or other entity which is duly certified by the FCC to operate an Open Video System in the City.  Such assignment shall be deemed approved by the City if the City has not raised questions or objections within sixty (60) days after receipt of written notice.  If questions or objections are raised by the City, the parties agree to work diligently to resolve the outstanding issues.  Any transfer of control or assignment of this OVS Agreement subject to the City’s consent pursuant to this Section shall be conditioned upon the transferee’s or assignee’s agreement to be bound by the terms of this OVS Agreement.

Section 1.12 ·· SERVICE AND TRANSMISSION QUALITY STANDARDS

Starpower shall meet or exceed all FCC service and transmission quality standards pertaining to the provision of OVS Services.  At all times throughout the term of this OVS Agreement, Starpower shall meet all applicable FCC technical standards.

Section 1.13 ·· CUSTOMER SERVICE STANDARDS

a. Availability.  Starpower shall make its customer service representatives available to Starpower subscribers in the City twenty·four (24) hours per day, seven (7) days per week.
b. FCC Standards.  Starpower shall meet or exceed all applicable FCC customer service standards and obligations set forth in 47 CFR § 76.309.
c. City Regulations.  Starpower shall meet or exceed all applicable customer service and obligations standards set forth in the D.C. Municipal Regulations.
d. Unresolved Customer Complaints.  In the event of any unresolved complaint(s) from its subscribers in the City, and at the request of the City, Starpower shall meet with designated City officials in order to resolve any such complaints.
e. Billing.  Starpower shall provide a detailed bill to each of its subscribers in the City on a monthly basis, itemizing all services provided to said subscribers, the costs of all such services, and the period of service for billing.
f. Nondiscrimination.  Starpower shall not deny service or access, or otherwise discriminate against Subscribers or residents on the basis of race, religion, national origin, age, sex, marital status, personal appearance, sexual orientation, family responsibilities, physical handicap, political affiliation, or income level.  Starpower shall comply with all other applicable federal and District laws and regulations relating to nondiscrimination.

Section 1.14 -- PRIVACY PROTECTION
a. Scope.  In addition to the provisions of this Section governing privacy, Starpower shall comply with the provisions of Section 631 of the Cable Act (47 U.S.C. § 551) and any other applicable law, including any additional local standards established in accordance with applicable law.
b. Information to City. Starpower shall cooperate with the City so as to ensure the City's ability to enforce the terms and conditions of this Agreement.  Starpower will provide upon the request of the Executive Director from time to time during the term of the Agreement, a summary of representative Subscriber complaints, the number of Subscriber complaints received during the preceding twelve (12) months, and the actions taken by Starpower in response thereto.  To the extent that the City receives any complaints from a Subscriber regarding Starpower's service, Starpower shall, upon request by the City, furnish to the City such information regarding that Subscriber's service, complaints, repair, rendering of Service and Signal quality issues, as may be reasonably necessary for the City to respond to the Subscriber, so long as such information does not provide personally identifiable information relating to the Subscriber's programming choices.  Starpower and City agree that it is not inconsistent with Section 631 of the Cable Act (47 U.S.C. § 551) to provide the City with such information, as long as the Subscriber to whom such information relates consents (to the extent such consent is necessary) to such disclosure.
c. No Interference.Starpower shall not interfere with the ability of each Subscriber to utilize his or her television receiver for any normal purpose.
d. Privacy of Customer Information.  Starpower shall comply with all applicable federal and City rules and regulations regarding the privacy of customer data.
e. Notice to Customers.  Upon a Subscriber’s application for cable television service, including, but not limited to, interactive service, Starpower shall provide a prospective Subscriber with a separate notice explaining the subscriber’s right to privacy protection under this Section 1.14(a) and applicable federal and City law.

Section 1.15 ·· EQUAL EMPLOYMENT OPPORTUNITYAND LOCAL WORKFORCE

a. No Discrimination.  Starpower shall not: (i) refuse to hire, train, or employ; (ii) bar or discharge from employment; or (iii) discriminate against any individual in compensation, hours of employment, or any other term, condition, or privilege of employment, including, without limitation, promotion, upgrading, demotion, downgrading, transfer, layoff, and termination, on the basis of race, creed, color, national origin, sex, age, handicap, marital status, affectional preference or sexual orientation in accordance with applicable law.  Starpower agrees to comply in all respects with all applicable federal, state and local employment discrimination laws and requirements during the term of this Agreement. Starpower shall not refuse to hire or employ, discharge, or otherwise discriminate against any person for any reason provided in the Human Rights Act of 1977 (D.C. Law 2-38; D.C. Code §1-2501 et seq.)
b. Local Employment.  Starpower shall, at its own cost and expense, develop and maintain a plan for the recruitment, education, training and employment of residents of the City, for the opportunities to be created by the construction, operation, maintenance and upgrade of the System.  Such recruitment activities shall include posting of employment and training opportunitiesat appropriate City departments or agencies responsible for encouraging employment of City residents. Such plan shall be designed so as to ensure the promotion of equal employment opportunity for all qualified Persons employed by, or seeking employment with, Starpower.  Within thirty (30) days of the Effective Date, Starpower shall submit such plan to the City Department of Employment Services for its review and approval and to the Executive Director, said approval not to be unreasonably withheld.  Such plan shall be updated from time to time as reasonably necessary.  Starpower shall, throughout the term of this Agreement, implement such plan, at its own cost and expense, by ensuring, to the maximum feasible extent, the recruitment, education, training, and employment of City residents, to the extent permissible under applicable law.
i. Because Starpower’s OVS System in the City is part of a larger multi-jurisdictional OVS system and its workforce will be deployed on a multi-jurisdictional basis, that portion of Starpower’s workforce attributable to operation of the System in the City (the “City Workforce”) shall consist of eighteen percent (18%) of Starpower’s total multi-jurisdictional workforce, which percentage is based on the population of the City as compared to the total population within the Starpower multi-jurisdiction OVS footprint as of the effective date of this Agreement. At least eighty percent (80%) of Starpower’s City Workforce shall consist of City residents.   Upon the request of the City, Starpower shall increase the required City Workforce percentage consistent with increases in the City’s population in comparison with the population of the other jurisdictions within the OVS footprint.
ii. Starpower shall utilize the Job Service operated by the District of Columbia Department of Employment Services (DOES) as a primary source of referral for qualified applicants, trainees and other workers.
c. Affirmative Action and Training,
i. On the one (1) year anniversary of the Effective Date of this Agreement, and on each yearly anniversary during the term of this OVS Agreement thereafter, if any, Starpower shall submit to the Office of Human Rights a written Affirmative Action Plan for approval in accordance with Section 253 of the District of Columbia Human Rights Act of 1977 effective December 13, 1977 (D.C. Law 2-38, D.C. Code §1-2501 et seq.), as amended.  The plan shall apply to all job categories within Starpower’s City Workforce.  Starpower's plan shall also include detailed on-the-job training and apprenticeship programs designed to provide City residents, particularly unskilled and semi-skilled minority youth with job skills, job opportunities, and upward mobility, both within the cable television industry and Starpower's workforce.  Starpower shall fully abide by the provisions of Mayor's Order 83-265, dated November 9, 1983, so long as such order shall remain in force and effect.  These programs shall be applicable to all job categories in Starpower’s City Workforce and shall be maintained throughout the term of the Agreement.
ii. Starpower shall make a positive and good faith effort to establish for its City Workforce employment goals and timetables designed to achieve minority participation in its City Workforce equal to the percentage of minority population within the City by the end of the second year of its operation in the City, provided qualified or qualifiable minority persons are available.  The adoption and implementation of goals and timetables by Starpower and the City is not intended to constitute a discriminatory practice prohibited by this Agreement or law.
iii. Within ninety (90) days after the Effective Date of the Agreement, Starpower shall submit construction and skilled trade apprenticeship programs, consistent in size and scope with its City Workforce, to the Director of the District of Columbia Apprenticeship Mayor for approval and registration pursuant to Section 5 of the Amendments to An Act To Provide for Voluntary Apprenticeship in the District of Columbia Act of 1978, effective March 6, 1979 (D.C. Law 2-56; D.C. Code §36-409).  No less than fifty-one percent (51%) of Starpower’s apprentices and trainees pursuant to this program shall include City residents.
iv. To the extent that this OVS Agreement is in effect at such time, Starpower shall report annually to the Office of Human Rights regarding the status of its training programs including a detailed analysis of Starpower's efforts to achieve its goals and timetables.
v. Failure to comply with a provision of this Section shall constitute an unlawful discriminatory practice and shall subject Company to fines imposed by the Commission on Human Rights of not less than $1,000 for each day that the violation persists and any other penalties that may be imposed pursuant to City law or this Agreement.  Where deemed appropriate, the Office of Human Rights may recommend to the Mayor suspension or termination of the Agreement in accordance with procedures set forth in Section 1.26 of this Agreement.
vi. For purposes of this Section, the term "qualifiable" refers to minority persons who can be trained in accordance with the requirement of this Section.
d. Any violation of the Section shall be deemed a material breach of this Agreement, and may constitute grounds for termination.

Section 1.16 ·· PURCHASING

a. City Vendors. Starpower  shall comply with all  provisions of Chapter 11 of Title 1 of the D.C. Code for the purposes of Local, Small, and Disadvantaged Business Enterprise contracting.  (D.C. Code § 1-1152et seq.; D.C. Act 12-278) To the maximum reasonable and feasible extent under applicable law, and with due regard to price, availability of materials, and quality considerations, Starpower shall utilize vendors located in the City in connection with the construction, operation, maintenance and upgrade of the System.  Starpower shall, in the purchase of comparable materials, equipment, or supplies of any nature, give effect to a preference for such items that are assembled, manufactured, or otherwise produced, in whole or in part, within the City for utilization in the City.  Not later than ninety (90) days after the Effective Date, Starpower shall submit a written plan describing how Starpower shall comply with the requirements of this Section to the Director of the Department of Human Rights and Local Business Development of the City and shall submit a copy of such plan to the Executive Director for the Executive Director's review and approval, said approval not to be unreasonably withheld.  Such plan shall be updated from time to time as reasonably necessary throughout the term of this Agreement.
b. Purchasing Power
i. In the procurement areas where penetration of Minority Owned Businesses (“MBE”) and Protected Class Businesses (“PCs”) is low or non-existent, Starpower shall take steps to encourage MBE and PC entry into the marketplace, in addition to any other outreach activity.
ii. Starpower shall maintain an appropriately sized staff to provide overall direction and guidance to the MBE and PC programs.
iii. Starpower will ensure that its employees with procurement responsibilities receive training in the implementation of its MBE and PC programs that encourage employees involved in procurement activities to let purchases and contracts, as appropriate, which accommodate the capabilities of minorities and protected classes.
iv. Starpower will, to the best of its ability, make available to MBE and PC contractors, lists of telecommunications purchase contract categories which may offer them the best opportunity for successful bidding.
v. Starpower will encourage its prime contractors to develop plans to increase utilization of MBEs and PCs as subcontractors.
vi. Starpower shall include the following statement on its procurement documents, or attach to its procurement documents: “It is the policy of Starpower Communications that minority business enterprises and protected classes have the maximum opportunity to participate in the performance of contracts.  The contractor agrees to use its best efforts to carry out this policy in the award of subcontracts to the fullest extent, consistent with the performance of this contract.
c. Material, systemic, or repeated violations of this Section shall be deemed a material breach of this Agreement, and may constitute grounds for termination pursuant to Section 1.26 of this Agreement.

Section 1.17 ·· PUBLIC, EDUCATIONAL AND GOVERNMENTAL CHANNELS

a. Channel Capacity. Starpower shall supply to the City sufficient capacity on the Open Video System to distribute to all of its Subscribers and the subscribers of any Video Programming Providers the Public, Educational and Governmental Channels provided by the Cable Operator licensed by the City to operate a cable television system as of the date of this Agreement (the “Incumbent Cable Operator”).  Unless otherwise provided in Exhibit A, Starpower shall supply to the City, without charge, a minimum of six (6) activated Access Channels on the System as specified in Exhibit A to this Agreement (the “PEG Channel Capacity”).  The PEG Channel Capacity shall be allocated among Governmental Channels and Public Channels as set forth in Exhibit A.

Starpower shall distribute such PEG Channels at the frequency allocations set forth in Exhibit A, in a manner consistent with the obligation under the FCC's OVS rules to make PEG Channels available to all Starpower Subscribers and the subscribers of any Video Programming Provider distributing Video Programming on the System.

b. PEG Channel Changes.  Consistent with the FCC’s rules, if the number of PEG Channels provided by the Cable Operator increases or decreases during the term of this OVS Agreement, Starpower shall adjust its offering of PEG Channels as soon as reasonably practicable, but in no event longer than one hundred-twenty (120) days, after receipt of written notice from the City, provided, however, that such period may be extended with the approval of the City.  Each PEG Channel shall be comprised of 6 MHZ of analog capacity or, should Starpower utilize a digital network platform, an equivalent amount of digital capacity.
c. Purpose.  The PEG Channel Capacity shall be used for distributing Video Programming by the City, the Public Access Corporation, or educational institutions, for functions or projects related to public, educational or governmental purposes.   Subject to the terms of Section 1.17(a) above, Starpower shall, at its own expense, obtain and distribute the channel feeds for the PEG Channels listed on Exhibit A hereto.
d. Interconnection.  Unless otherwise mutually agreed by the parties during the term of this OVS Agreement, Starpower shall promptly interconnect to the City’s PEG Channels at 2217 14th St., NW, Washington, DC 20009.  Starpower shall bear the cost of such interconnection, including any necessary equipment used and construction by the City or Starpower, which costs shall be offset against the “PEG Capital Contribution Fee” obligations of Starpower in Section 1.22 below.
e. PEG Programming Distribution  Upon interconnection to the City’s PEG Video Programming, Starpower shall deliver the PEG Video Programming designated by the City to all Subscribers, and shall require VPPs who use Starpower’s OVS Transmission Services to offer Video Programming to subscribers in the City to distribute to their subscribers the same PEG Video Programming as that which Starpower is obligated to distribute to its Subscribers pursuant to this OVS Agreement
f. Equipment.  Starpower shall install equipment at 2217 14th Street, which will consist of a rack, six frequency agile processors, a laser chassis, a DFB laser and a drop splitter.  The PEG channels will be captured through the use of a drop splitter within 2217 14th Street.  Starpower will split the existing drop and, utilizing an amplifier and six way splitter.  Starpower will feed the six frequency agile processors in the rack.  The processors will be set to receive the PEG channels.  The outputs will be combined and inserted into the DFB laser, also located in the rack.  The laser will transmit the six channels back to the Starpower headend via fiber optic cable.  At the Starpower headend, these six channels will be received and the output of the receiver will be split to six demodulators which will then feed six modulators where they will be re-modulated to channels on the Starpower system.
g. Technical Standards.  The Carrier to Noise (C/N) Ratio for the six (6) PEG Channel feeds at 2217 14th Street shall be in the range of 45.8 dB to 49.0 dB.  The maximum C/N Ratio at the end user shall not vary for each of the six (6) channels by more than 2 dB from its respective C/N Ratio at 2217 14th Street.  If the median results of C/N Ratio tests falls below 42 dB in any month for any of the channels, the parties agree to promptly fashion a remedy, including if necessary finding a new point of interconnection.
h. Use of Governmental Channels. The Governmental Channels shall be used for distributing Video Programming by the City or educational institutions for functions or projects related to governmental or educational purposes, including the generation of revenues by activities reasonably related to such uses and purposes. Starpower shall not exercise editorial control over programming or distribution of Services over any Governmental Channel.
i. Use of Public Channels.  The Public Channels shall be under the jurisdiction of the Public Access Corporation.  Such Public Channels shall be used for the purpose of distributing noncommercial Video Programming by the public, any other charitable, nonprofit purpose or other similar purpose, including, without limitation, the generation of revenues by activities reasonably related to such uses and purposes, or any other purpose agreed to between Starpower and the PAC.  Starpower shall not exercise editorial control over programming or distribution of Services over any Public Channel used by any Person(s).  In the event there is any fallow time on any Public Channel, the Executive Director may allocate such Channel(s) for governmental or educational use or use by Starpower under terms and conditions agreed to between the City and Starpower.
j. Ratings.  Starpower shall promptly provide copies of any ratings information it obtains and the results and analyses of that portion of any Subscriber surveys it conducts or requests concerning viewership of PEG Channels or Service tiers containing such PEG Channels, to the City, and to the Public Access Corporation for Services provided on any Public Channel;provided, however, that with respect to any such ratings and results and analyses, Starpower shall redact any personally identifiable information prior to providing such information to the City and/or the Public Access Corporation, as applicable.
k. Hearing Impaired. Starpower shall transmit closed captioning video signals on all channels which transmit such signals to Starpower.

Section 1.18 – EMERGENCY OVERRIDE SYSTEM

Starpower shall (as to the System) be subject to and comply with the Title VI Cable Operator's obligations with respect to emergency override of analog channels that apply to the Incumbent Title VI Cable Operator’s operation of its Cable Communications System in the City.

Section 1.19 -- DATA TRANSPORT FACILITIES FOR GOVERNMENT BUILDINGS
a. City Data Backbone.  During the term of this Agreement, Starpower shall reserve in its fiber backbone facilities at least one (1) pair of dark fibers for possible future use by the City for the City’s data transport backbone facility which will be designated for the sole use of the City government (the “City Data Backbone”).
b. Further Negotiations.  The Parties agree to negotiate the details of Starpower’s provision of dark fiber facilities to the City for use by the City as part of its City Data Backbone during the negotiation of a final OVS agreement. 
c. Not OVS Service.  It is understood between the Parties that fiber facilities reserved for the sole use of the City as part if its City Data Backbone are not a part of Starpower’s OVS Services.  Dark fiber and data telecommunications services are a distinct business offering of Starpower which are not subject to this Agreement.

Section 1.20 – CONSTRUCTION AND TECHNICAL REQUIREMENTS
a. General Requirement. To the extent that Starpower constructs any facilities in the Streets pursuant to this Agreement in order to operate or upgrade the System and to provide Services, Starpower agrees to comply with each of the terms set forth in this Section governing construction and technical requirements, in addition to any other requirements or procedures reasonably specified by the Executive Director and consistent with this Agreement with respect to such facilities.
b. Quality.  All work involved in the construction, operation, maintenance, repair, upgrade, and removal of the System shall be performed in a safe, thorough and reliable manner using materials of good and durable quality.  If, at any time, it is finally determined by the City or any other agency, or authority of competent jurisdiction that any part of the System, including, without limitation, any means used to distribute Signals over or within the System, is harmful to the health or safety of any Person, then Starpower shall, at its own cost and expense, promptly correct all such conditions.
c. Construction Schedule.  For each area of the City where Starpower plans to construct the System during the term of this Agreement, Starpower shall provide the City with a construction schedule for each buildout area at least sixty (60) days prior to construction of the area.
d. Licenses and Permits.  Starpower shall have the sole responsibility for diligently obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to construct, operate, maintain, repair or upgrade the System, or any part thereof, prior to commencement of any such activity.  The City will use its best efforts to assist Starpower through any City process.

Section 1.21 ·· OVS GROSS REVENUE FEE
a. Fee.  The City shall be entitled to receive from Starpower an annual fee (the “OVS Gross Revenue Fee”), to be paid quarterly as set forth herein, equal to five percent (5%) of Starpower’s Gross Revenues from the provision of OVS Services in the City, which fee shall be increased or decreased in the future to the extent it exceeds the lowest of the then-current fees received by the City with respect to any licensed Cable Operator or OVS Operator transmitting Video Programming in the City.  In no event, however, shall the OVS Gross Revenue Fee exceed the maximum percentage of  Starpower’s Gross Revenues from its operation of its OVS System in the City permitted by applicable law.
b. Payment.  Starpower shall submit to the Executive Director, a report, in such form as set forth in Exhibit B (the “OVS Gross Revenue Fee Calculation Form”), as may be modified from time to time to contain such additional detail as requested by the Executive Director, not later than forty-five (45) days after the last day of each March, June, September, and December throughout the term of this OVS Agreement.  The OVS Gross Revenue Fee Calculation Form shall set forth the OVS Gross Revenue Fee for the quarter ending on said last day of such month.  Unless Starpower has made a prepayment of its OVS Gross Revenue Fee for a quarter pursuant to this Section, Starpower shall remit the OVS Gross Revenue Fee with its quarterly OVS Gross Revenue Fee Calculation Form.
i. Prepayment.
A. Within ten (10) business days after the Effective Date of this OVS Agreement, Starpower shall submit to the City a bank check in the amount of Fifty Thousand Dollars ($50,000) as prepayment of its OVS Gross Revenue Fee for the one (1) year term of this OVS Agreement.
B. To the extent that this OVS Agreement is automatically renewed for an additional six (6) month term, Starpower shall, at the City’s request and within ten (10) business days after the first day of an automatic six (6) month renewal period of this OVS Agreement, submit to the City a bank check in the amount of Twenty-Five Thousand Dollars ($25,000) as prepayment of its OVS Gross Revenue Fee for the automatic six (6) month renewal period of this OVS Agreement.  Starpower shall not be obligated to submit such payment in the event that this OVS Agreement terminates prior to the first day of an automatic renewal period nor shall it be obligated to submit such prepayment for any additional mutually agreed upon six (6) month renewal terms as may occur following the initial automatic renewal.  In the event that the City does not request that Starpower submit a prepayment for the automatic six (6) month renewal term, if any, Starpower shall be obligated, effective as of the first day of the automatic renewal period, to submit subsequent OVS Gross Revenue Fees on a quarterly basis as set forth herein.
ii. Credits.  To the extent that prepayments tendered by Starpower under this Section exceed five percent (5%) of Starpower’s Gross Revenue for the periods during which such payments were tendered, the excess shall be deemed an interest-free loan from Starpower to the City, and shall be repaid by application of credits against OVS Gross Revenue Fee payments or prepayments tendered to the City after ascertainment of the excess until such loans are repaid.  To the extent that said amounts tendered are less than five percent (5%) of Starpower’s Gross Revenue for the period during which such prepayments were tendered, Starpower shall tender the deficiency within thirty (30) days after the ascertainment thereof.
iii. Early Termination.  It is the intent of the parties that the OVS Gross Revenue Fee Obligations set forth in this OVS Agreement shall continue in any subsequent final OVS agreement or such other agreement, franchise or license as may in the future be agreed to between the City and Starpower.  To the extent that such obligations are modified in a subsequent agreement, however, Starpower’s prepayment obligations shall cease as of the payment tendered immediately preceding the date that this OVS Agreement terminates.  Any prepayment amounts tendered by Starpower prior to that date shall be subject to the credits and adjustments set forth herein.  Any credits due to Starpower at such time shall be applied by Starpower as credits against gross receipts fees pursuant to any new agreement between Starpower and the City.  Any credits due to the City at such time shall be paid to the City within ten (10) business days after the termination of this OVS Agreement.
iv. Assignment.  In the event of any assignment of the System to any Person pursuant to this OVS Agreement, Starpower shall remit to the City the balance due of the payment required by this Section, including any credits or adjustments, as of the date of the transfer as a condition to the approval of such transfer.
c. Reservation of Rights.  No acceptance of any such payment by the City shall be construed as an accord and satisfaction that the amount paid is in fact the correct amount, nor shall such acceptance of any payment be construed as a release of any claim that the City may have for further or additional sums payable under the provisions of this OVS Agreement.  All amounts paid shall be subject to audit and recomputation by the City, which shall be based on Starpower’s fiscal year and shall occur in no event later than three (3) years after the fees are tendered with respect to such fiscal year.  If, after audit and re·computation an additional fee is owed to the City, such fee shall be paid within thirty (30) days after audit and re·computation.  The interest rate on such additional fee shall be charged from the due date at the rate of two percent (2%) above the prime rate of interest as in effect from time to time at the Industrial Bank of Washington or another bank chartered in the City during the period that such additional amount is owed.
d. Identification of Fees and Charges.  To the extent permitted by applicable law, Starpower may designate that portion of a Subscriber’s bill attributable to the amount of any compensation payment to be made by Starpower or any other Person to the City pursuant to this OVS Agreement, including, without limitation, the OVS Gross Revenue Fee and the Public Access Fee.  Such designation shall be made in a manner that is not misleading.
e. Ordinary Business Expense.  Nothing contained in this Section 1.21 or elsewhere in this OVS Agreement shall prevent Starpower or an Affiliated Person from treating the compensation and other payments that it, they or either or them, may pay pursuant to this OVS Agreement as an ordinary business expense of doing business and, accordingly, from deducting such payments from gross income in any City, state or federal income tax return.
f. Payments to be Made to the City.  Other than payments received by Video Programming Providers for Video Programming or related services provided to their subscribers using the System, if any Person other than Starpower directly collects amounts from Starpower's Subscribers that would constitute Gross Revenue if received directly by Starpower, Starpower shall include in its contract, or other arrangement with such Person, a provision which provides that such Person shall remit to the City on a quarterly basis an amount equal to five percent (5%) of such amounts collected from Subscribers, together with a quarterly report similar in form and content to the OVS Gross Revenue Fee Calculation Form referred to in this Section, and that the City may enforce such provision against such Person.
g. Method of Payment. Unless otherwise provided in this OVS Agreement, all payments required by this OVS Agreement, to be made payable to the City, shall be made payable by bank check drawn on the Industrial Bank of Washington or another bank chartered by the City, to the order of the D.C. Treasurer.  The bank check shall be delivered to the Office of Cable Television and Telecommunication.
h. Late Payment.  In the event that the fees herein required are not tendered on or before the date fixed in Subsection 1.21(c) above, interest due on such fee shall accrue from the date due at the rate of the of two (2) percent above the prime rate of interest as in effect from time to time at the Industrial Bank of Washington or another bank chartered by the City, compounded daily.
i. Records.  For each period for which OVS Gross Revenue fees are due and payable to the City hereunder, Starpower shall calculate such amounts using the OVS Gross Annual Revenue Fee calculation form appended hereto as Exhibit B.  At any time, upon the request of the City or its designee, Starpower shall make such forms and, if requested, supporting documentation, available to the City.  Starpower shall retain said documentation for at least three (3) years.  All documents submitted by Starpower to the City or made available by Starpower for inspection by the City, including without limitation the OVS Gross Revenue Fee Calculation Form and supporting documentation required by this Section, shall be kept confidential and utilized by the City only for the purposes set forth in this OVS Agreement.  Such documents shall not be disclosed to any other person or used for any purposes other than those expressly contemplated by this OVS Agreement, except as otherwise required by judicial or regulatory authorities having jurisdiction in respect thereof.
j. Taxes.  Payment of the OVS Gross Revenue Fee by Starpower to the City pursuant to the provisions of this OVS Agreement shall not be considered in the nature of a tax, but shall be in addition to any and all taxes which are now or may be required hereafter to be paid by any law of the City or the United States.
k. Starpower Cooperation.  Starpower agrees to cooperate fully and faithfully with any investigation, audit, or inquiry conducted by a District of Columbia governmental agency or authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by the Inspector General of a governmental agency that is a party in interest to the transaction, submitted bid or proposal, agreement, franchise, contract, lease, permit, or license that is the subject of the investigation, audit, or inquiry.

Section 1.22 ·· SUPPORT FOR PUBLIC SERVICES
a. Support Obligation.  Starpower is obligated to provide support for public services.  Such support shall consist of contributions to the Public Access Corporation (the “Public Access Corporation Fee”), and a grant to the City to support Public, Educational and Governmental facilities, equipment and services (the “PEG Access Contribution”)
b. Payment.  For purposes of Services provided during the term of this OVS Agreement, Starpower shall meet its PEG support obligations as follows:
i. Public Access Corporation Fee.
A. Throughout the term of this OVS Agreement, Starpower shall pay to the Public Access Corporation an annual Public Access Corporation Fee of one percent (1%) of its Gross Revenues, to be paid quarterly not later than forty-five (45) days after the last day of each March, June, September, and December throughout the term of this OVS Agreement.
B. Public Access Corporation Fees payable by Starpower pursuant to this Section shall be payable to the order of the Public Access Corporation of the District of Columbia, drawn on the Industrial Bank of Washington or another bank chartered by the City.  The bank check shall be delivered to the Public Access Corporation at 1400 20thStreet, NW, Suites G-2 & G-3, Washington, DC 20036.
C. For each period for which Public Access Corporation Fees are due and payable to the City hereunder, Starpower shall calculate such amounts using the Public Access Corporation Fee Calculation Form appended hereto as Exhibit C, as may be modified from time to time to contain such additional detail as requested by the Executive Director.  At any time, upon the request of the City or its designee, Starpower shall make such forms and, if requested, supporting documentation, available to the City.  Starpower shall retain said documentation for at least three (3) years.  All documents submitted by Starpower to the City or made available by Starpower for inspection by the City, including without limitation, the Public Access Corporation Fee Calculation Form and supporting documentation required by this Section, shall be kept confidential and utilized by the City only for the purposes set forth in this OVS Agreement.  Such documents shall not be disclosed to any other person or used for any purposes other than those expressly contemplated by this OVS Agreement, except as otherwise required by judicial or regulatory authorities having jurisdiction in respect thereof.
ii. PEG Access Contribution.
A. Within ten (10) business days after the Effective Date of this OVS Agreement, Starpower shall submit to the City a bank check in the amount of One Hundred Twenty-Five Thousand Dollars ($125,000).
B. In the event that this OVS Agreement is extended beyond one (1) year for one or more six (6) month periods pursuant to Section 1.3, Starpower shall submit to the City, within ten (10) business days after the commencement of each such six (6) month extension period, a bank check in the amount of Sixty-Two Thousand Five Hundred Dollars ($62,500).  Starpower’s obligation to make such payments shall cease upon the earlier of (i) the termination of this OVS Agreement or (ii) the cumulative payment by Starpower of PEG AccessContributions totaling Two Hundred-Fifty Thousand Dollars ($250,000).
C. PEG Access Contributions payable by Starpower pursuant to this Section shall be payable to the order of the D.C. Treasurer drawn on the Industrial Bank of Washington or another bank chartered by the City.  The bank check shall be delivered to the Office of Cable Television and Telecommunication.
D. Starpower and the City agree that, as part of their negotiations for a final OVS agreement, they will negotiate in good faith to determine the level of PEG Access Contributions which are reasonable and appropriate in such a final OVS agreement, and Starpower’s and the City’s agreement to the PEG Access Contributions set forth in this OVS Agreement are without prejudice to their positions as to the amount of PEG Access Contributions appropriate to a final OVS agreement.  To the extent that, after Starpower and the City agree on such a final OVS agreement, they determine that the amounts paid as of that date by Starpower pursuant to this OVS Agreement are in excess of the amount agreed upon in the final OVS agreement, Starpower shall be permitted to credit the amount of such excess, plus interest at the prime rate of interest in effect during the duration of the excess payment compounded daily, against future PEG Access Contributions made pursuant to a final OVS agreement.
iii. In the event of any assignment of the System to any Person pursuant to this OVS Agreement, Starpower shall remit to the City the balance due of the payment required by this Section as of the date of the assignment.
c. Reservation of Rights.  No acceptance of any PEG Access Corporation Fee payment by the Public Access Corporation shall be construed as an accord and satisfaction that the amount paid is in fact the correct amount, nor shall such acceptance of any payment be construed as a release of any claim that may City may have for further or additional sums payable under the provisions of this OVS Agreement.  All amounts paid shall be subject to audit and re-computation by the City, which shall be based on Starpower’s fiscal year.  If, after audit and re·computation an additional fee is owed to the City, such fee shall be paid within thirty (30) days after audit and re·computation.  The interest rate on such additional fee shall be charged from the due date at the rate of two percent (2%) above the prime rate of interest as in effect from time to time at the Industrial Bank of Washington or another bank chartered by the City, during the period that such additional amount is owed.
d. Identification of Fees and Charges.  To the extent permitted by applicable law, Starpower may designate that portion of a Subscriber’s bill attributable to the amount of any compensation payment to be made by Starpower or any other Person to the City pursuant to this OVS Agreement.  Such designation shall be made in a manner that is not misleading.
e. Ordinary Business Expense.  Nothing contained in this Section or elsewhere in this OVS Agreement shall prevent Starpower or an Affiliated Person from treating the compensation and other payments that it, they or either or them, may pay pursuant to this OVS Agreement as an ordinary business expense of doing business and, accordingly, from deducting such payments from gross income in any City, state or federal income tax return.
f. Payments To Be Made to the City.  Other than payments received by Video Programming Providers for Video Programming or related services provided to their subscribers using the System, if any Person other than Starpower directly collects amounts from Starpower's Subscribers that would constitute Gross Revenue if received directly by Starpower, Starpower shall include in its contract, or other arrangement with such Person, a provision which provides that such Person shall remit to the Public Access Corporation on a quarterly basis an amount equal to one percent (1%) of such amounts collected from Subscribers, together with a quarterly report similar in form and content to the report referred to in this Section, and that the City may enforce such provision against such Person.
g. Late Payment.  In the event that the Public Access Corporation Fee and PEG Access Contribution set forth herein required are not tendered on or before the date fixed in Subsection 1.22 (b) above, interest due on such fee shall accrue from the date due at the rate of the of two (2) percent above the prime rate of interest as in effect from time to time at the Industrial Bank of Washington or another bank chartered by the City, compounded daily.
h. Taxes.  Payment of the Public Access Corporation Fee and the PEG Access Contribution by Starpower to the City pursuant to the provisions of this OVS Agreement shall not be considered in the nature of a tax, but shall be in addition to any and all taxes which are now or may be required hereafter to be paid by any law of the City or the United States.
i. Additional Public Support.  Starpower shall provide at least one Service outlet and basic Service, at no charge, to each government agency at each government facility, including, but not limited to, public schools, public libraries, police and fire stations, hospitals, and municipal agencies designated by the Office.   The City shall be responsible for assuring the availability of any building access necessary for installation of such facilities.  Subject to the availability of appropriate building access, such Service outlets and Services shall be installed in each such government facility within forty-five (45) days of construction of the System to a location within one hundred-fifty feet (150') of each such location.
j. PAC Contribution Statement on Bills.  At least two (2) times per year, on dates which are mutually agreed upon by Starpower and the Public Access Corporation, Starpower shall provide reasonable space on its regular bills to Subscribers for the Public Access Corporation to insert wording of its choice to solicit Subscribers to contribute to or join the Public Access Corporation.  Starpower shall provide that any such contributions or requests to join the Public Access Corporation may be made with the return of payment of Starpower’s bills;provided, however, that any monies collected by Starpower on behalf of the Public Access Corporation shall be submitted by separate check or money order and not as part of a Subscriber’s payment of Starpower’s bills.

Section 1.23 – LIABILITY AND INDEMNIFICATION
a. Starpower.  As between the City and Starpower and except as provided in Section 1.23(e) hereof, to the extent that Starpower constructs any facilities in the Public Streets to provide Services, it shall be responsible for any damage or loss to any real or personal property, and for injury to or death of any person arising out of or in connection with the construction, operation, maintenance, repair, or removal of the System, or in respect to any of its activities or the activities of any of its subcontractors within the scope of the provision of Service, provided, however, that Starpower shall not be responsible for the acts or omissions of the Public Access Corporation or for any damage or injury caused solely by the City, its agents, or employees.  Unless the City is solely responsible for any loss of or damage to property, Starpower shall replace, repair or restore all such property to a like condition within a reasonable time and at its own expense.
b. City.  Except as caused solely by its own actions or those of its officers, agents, or employees, the City, its officers, employees, and agents shall not be liable for any loss or damage to any real or personal property, or for any injury to or death of any person, arising out of or in connection with the construction, operation, maintenance, repair, or removal of the System, or in respect to any activity within the scope of the provision of Service over the System.
c. Moving Wires.  Starpower shall comply with all applicable City rules, regulations and procedures, including but not limited to the rules, regulations and procedures of the Department of Public Works, which govern the movement or cutting of the local exchange Telecommunications facilities of all local exchange carriers in case of fire, disaster or other declared emergency.
d. No Liability for Public Works, etc.  Neither the City nor its officers, employees, agents, attorneys, consultants or independent contractors shall have any liability to Starpower or any Affiliated Person for any Liability as a result of or in connection with the protection, breaking through, movement, removal, alteration, or relocation of any part of any facilities constructed by Starpower pursuant to this OVS Agreement by or on behalf of Starpower or the City in connection with any emergency, public work, public improvement, alteration of any municipal structure, any change in the grade or line of any Street, or the elimination, discontinuation, and closing of any Street, as provided in this OVS Agreement.
e. Limitations.  As between the City and Starpower or any Affiliated Person, the liability and indemnification obligations of Starpower pursuant to this OVS Agreement shall not apply to: (i) any willful misconduct or negligence of any City officer, employee, agent, attorney, consultant or independent contractor; (ii) any Liability arising out of the distribution of Services over the Governmental Channels to the extent that Starpower has not performed or failed to perform any act forming the basis of such claim; or (iii) any Liability arising out of the distribution of Services over Public Channels to the extent that Starpower has not performed or failed to perform any other act forming the basis of such claim.
f. Indemnification.
i. Indemnification of the City.  Starpower shall indemnify and hold the City, its elected officials, officers, employees and agents harmless against all claims in connection with this OVS Agreement, including but not limited to all claims for damage due to the actions of Starpower, its employees, officers or agents arising out of the construction, installation, maintenance, operation or removal of the Open Video System under this OVS Agreement, including without limitation, damage to persons or property, both real or personal.  The City, at its election shall notify Starpower of any such claims or actions.  The City Corporation Counsel shall evaluate the case for legal representation within the Corporation Counsel’s Office or in the alternative, provide a reasonable opportunity for the company to accept and undertake the defense.  The City shall have the right to approve any counsel retained for its defense, which approval shall not be unreasonably withheld.
ii. Indemnification of Starpower.  The City shall indemnify Starpower against all claims for damage due to the actions of the City arising out of the City’s use of the Starpower System and/or Services.  Starpower shall have the right to approve any counsel retained or otherwise assigned by the City Corporation Counsel for its defense, which approval shall not be unreasonably withheld.  Indemnified expenses shall include attorneys’ fees and costs, and shall be paid in accordance with City Corporation Counsel’s policies and practices for litigation fees and expenses.
iii. Common Defense.  In circumstances where the City and Starpower are co-defendants, the parties shall make a good faith effort to participate in a common defense, but the City reserves the right to have separate counsel provided for its defense if in its sole judgment its interests are not allied with the interests of Starpower.
g. Legal Representation.  If a claim or action is brought against the City under circumstances where indemnification applies, Starpower, at its sole cost and expense, shall defend the City as hereinabove provided.  Starpower shall have procedural control of such claim or action, but it may not settle without the advance, written consent of the City, which shall not be unreasonably withheld.  The City, at all times, shall retain substantive control of its defense of any such claim or action.
h. No Waiver.  This section is not, as to any third parties, a waiver of any defense or immunity otherwise available to the City.
i. No Recourse.  Starpower shall have no recourse whatsoever against the City or its officials, boards, commissions, agents, or employees other than injunctive and/or declaratory relief because of enforcement of this OVS Agreement or in instances of gross negligence, violation of constitutional rights, criminal acts or breach of contract for any loss, costs, expenses or damage arising out of any provision or requirements of this OVS Agreement or because of enforcement of this OVS Agreement except as otherwise expressly provided for herein.

Section 1.24 -- INSURANCE
a. Specifications.  To the extent that Starpower performs any construction, maintenance, repair, of facilities located in the Streets pursuant to this OVS Agreement, Starpower shall, at its own cost and expense, obtain a liability insurance policy or policies, in a form acceptable to the Executive Director, together with evidence acceptable to the Executive Director demonstrating that the premiums for said policy or policies have been paid and evidencing that said policy or policies shall take effect and be furnished at or before the Effective Date.  Such policy or policies shall be issued by companies duly licensed to do business in the City and acceptable to the Executive Director, but the Executive Director's consent may not be withheld based on the fact that the policy or policies are merged in a policy or policies maintained by an Affiliated Person or Persons adequate to cover the minimum limitations stated below.  Such companies must carry a rating of not less than "A".  Such policy or policies shall insure (i) Starpower and (ii) the City and its officers, boards, commissions, elected officials, agents and employees (through appropriate endorsements if necessary) against each and every form of Liability of Starpower referred to in Section 1.23 hereof in the minimum combined amount of Thirty Million Dollars ($30,000,000.00) for property damage liability, comprehensive public liability, and comprehensive automobile liability.  The foregoing minimum limitation shall not prohibit Starpower from obtaining a liability insurance policy or policies in excess of such limitations, provided that the City, its officers, boards, commissions, elected officials, agents and employees shall be named as additional insured to the full extent of any limitation contained in any such policy or policies obtained by Starpower.
b. Maintenance.  The liability insurance policies required above shall be maintained by Starpower throughout the term of this OVS Agreement, and such other period of time during which Starpower operates or is engaged in the removal of the System,provided, however, that each such liability insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until ninety (90) days after receipt by the City, by registered mail, of a written notice of such intent to cancel or not to renew." Within sixty (60) days after receipt by the City of said notice, and in no event later than thirty (30) days prior to said cancellation, Starpower shall obtain and furnish to the Executive Director, replacement insurance policies in a form reasonably acceptable to the Executive Director.
c. Liability Not Limited.  The legal Liability of Starpower and any Affiliated Person to the City and any Person for any of the matters which are the subject of the liability insurance policies required by this Section, including, without limitation, Starpower's indemnification obligation, shall not be limited by such insurance policies nor by the recovery of any amounts thereunder, except to the extent necessary to avoid duplicative recovery from or payment by Starpower or its Guarantors.

Section 1.25 -- OVERSIGHT AND REGULATION
a. Oversight.  Starpower shall establish and maintain managerial and operational standards, procedures, records and controls to enable Starpower to be, at all times throughout the term of this OVS Agreement, in compliance with each term and condition of this OVS Agreement and to ascertain as promptly as possible any failure to be in compliance with each such term or condition.
b. City Reservation of Authority. The City reserves the right to adopt or issue such rules, regulations, orders, or other directives governing Starpower or the System necessary or appropriate in the exercise of its police powers, and Starpower expressly agrees to comply with all such rules, regulations, orders, or other directives;providedthat such orders are not materially in conflict with the provisions of this OVS Agreement and are not inconsistent with federal law.  In addition, the Executive Director may, from time to time, issue such orders governing Starpower or the System as the Executive Director shall find necessary or appropriate pursuant to and in furtherance of the purposes of this OVS Agreement, and Starpower expressly agrees to comply with all such rules, regulations, orders, or other directives;providedthat such orders are not materially in conflict with the provisions of this OVS Agreement and are not inconsistent with applicable federal law or the rules and regulations of the FCC.  No rule, regulation, order, or other directive issued pursuant to this Section 1.25(a) shall constitute an amendment to this OVS Agreement.
c. Periodic Evaluation.  In accordance with this Section, and in response to a request from the Executive Director, Starpower shall submit a report attesting to its compliance with provisions of this OVS Agreement as specified by the Executive Director.
d. Timing of Reports. Upon written request of the Executive Director from time to time but not more frequently than semi-annually, Starpower shall submit to the Executive Director the report required by this Section.  The Executive Director may specify the form and content of such report, which shall be provided by Starpower within thirty (30) days of the Executive Director's request.
e. Designated Officers and Employees. Throughout the term of this OVS Agreement, the General Manager of Starpower, or such person(s) whom the General Manager designates in writing to the Executive Director, shall be responsible for overseeing Starpower's reporting obligations pursuant to this OVS Agreement and for responding to the City's questions regarding Starpower's compliance with the terms and conditions of this OVS Agreement.  The General Manager shall notify the Executive Director in writing of any change in such designation.
f. Financial Reports.  Starpower shall submit to the Executive Director, not later than three (3) months after the end of each annual fiscal period during the term of this OVS Agreement, with respect to the period just ended: (i) a copy of any Starpower Annual Financial Report submitted to the PSC (if any) with respectto Starpower's fiscal year; and (ii) a copy of Starpower's annual financial statements submitted to the Securities and Exchange Commission and available to the public or, in the absence of such statements, such other appropriate financial statements as reasonably determined by the Executive Director which, to the extent audits are undertaken by Starpower in the ordinary course of its business, shall be audited by an independent certified public accountant in accordance with generally accepted accounting principles consistently applied.
g. Additional Filings.Within thirty (30) days after Starpower has received from or submitted to any municipal, state, county, or federal agency or official any communication, public report, petition, or other filing which is in writing or is reduced to writing (in manual or computer form but not internal file memoranda) and which directly and materially affects any aspect of its obligations under this OVS Agreement or the financial arrangements of the System or Starpower's representations and warranties set forth herein, but not including tax returns or other filings which are confidential or other filings which are not directly related to and material to the obligations of Starpower pursuant to this OVS Agreement, Starpower shall submit to the Executive Director a copy of such communication, public report, petition, or other filing.  A copy of each response thereto, in writing or reduced to writing (in manual or computer form but not internal file memoranda), submitted to or received from such municipal, state, county, or federal agency or official by Starpower, shall likewise be submitted promptly to the Executive Director and in no case later than thirty (30) days after its receipt.
h. Books and Records.  To the extent necessary to assure Starpower’s compliance with this OVS Agreement, throughout the term of this OVS Agreement Starpower shall maintain at its corporate office within the City, or shall make available at such service center upon reasonable written notice by the Executive Director, complete and accurate books of account and records of the business, ownership, and operations of Starpower with respect to the System, its operation, any Service distributed over the System, and each Service Related Activity, in a manner reasonably acceptable to the Executive Director, including without limitation, books of account and records adequate to enable Starpower to demonstrate, at all times throughout the term of this OVS Agreement that it is, and has been, in compliance with this OVS Agreement.
i. Suppliers of Service.  Starpower shall maintain as specified in Section 1.25 hereof, accurate and complete records indicating all suppliers of Video Programming Services on all Channels on the System.
j. Right of Inspection.  As related to the regulation and enforcement of this OVS Agreement, during normal business hours andupon five (5) business days notice to Starpower, the Executive Director or the Executive Director’s designated representative(s) may inspect and examine the operation of System, including facilities and equipment thereof.  Further, as related to the regulation and enforcement of this OVS Agreement, the Executive Director, or its designated representatives, shall have the right to inspect, examine, or audit within the City, during normal business hours and upon reasonable written notice to Starpower, all documents, records and other identified information which pertain to Starpower or any Affiliated Person with respect to the System, its operation, its employment and purchasing practices, and each Service Related Activity and all such documents, records and other information shall be made available within the City in order to facilitate said inspection, examination, or audit, as provided in Section 1.25(a) hereof.  Starpower shall retain all such documents which pertain to financial matters that may be the subject of an audit by the City for a minimum of three (3) years following termination of this OVS Agreement.  Access by the City to any of the documents, records or other information covered by this Section 1.25 shall not be denied by Starpower on grounds that such documents, records or information are alleged by Starpower to contain proprietary information, including, but not limited to, competitively sensitive information of the type not routinely disclosed to the public, the disclosure of which to Starpower’s competitors would be competitively harmful;provided, however, this requirement shall not be construed to constitute a waiver of Starpower’s right to assert that the proprietary information contained in such documents, records or other information shall not be disclosed and to withhold such information unless the City can assure that the information will not be released to those City employees who require the information in the exercise of the City’s rights under this OVS Agreement.  Should Starpower refuse to permit access to proprietary information on the ground thatitshould not be released to the public, Starpower shall promptly notify the Office of its position and its intent to file a legalclaimtopreserve the confidentiality of the information.    Starpower shall not be required to provide the proprietary informationduring the pendency of any such court challenge.
k. Right of Examination.  Pursuant to its administrative rules and procedures, the Office may examine, under oath, Starpower's general partners, directors, officers or persons occupying similar positions or other employees with respect to its compliance with the terms of this OVS Agreement.

Section 1.26 – SPECIFIC RIGHTS AND REMEDIES
a. Not Exclusive.  Starpower agrees that the City shall have the specific rights and remedies set forth in this Section.  These rights and remedies are in addition to and cumulative with any and all other rights or remedies, existing or implied, now or hereafter available to the City at law or in equity in order to enforce the provisions of this OVS Agreement.  Such rights and remedies shall not be exclusive, but each and every right and remedy specifically provided or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient by the City.  The exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy nor shall any such delay or omission be construed to be a waiver of or acquiescence to any default.  The exercise of any such right or remedy by the City shall not release Starpower from its obligations or any Liability under this OVS Agreement, except as expressly provided for in this OVS Agreement or as necessary to avoid duplicative recovery from or payments by Starpower or its Guarantors.
b. City Action in Event of Material Breach.  If any of the events provided in Section 1.26(c) occur, then, in accordance with the procedures provided in Section 1.26 (e) hereof, the City may, upon notice to Starpower in writing and at any time during the term of this OVS Agreement, to the extent lawful:
i. Seek to amend any provision of this OVS Agreement to require Starpower to take any actions which the City deems reasonable and appropriate in the circumstances; and/or available under applicable law; and/or
ii. Seek monetary damages from Starpower as compensation for such material breach; and/or
iii. Terminate this OVS Agreement and exercise any remedies that may be available under applicable law; and/or
iv. Exercise any other remedies that may be available under applicable law.
c. Grounds.  In the event that any of the events set forth below shall occur, the City may take any of the actions set forth in Section 1.26(a).
i. any breach of a provision of this OVS Agreement requiring Starpower (a) to maintain a liability insurance policy; or (b) to provide or furnish information to the City, that is not cured within thirty (30) days after written notice pursuant to Section 1.26(e);
ii. any substantial breach of a material provision of this OVS Agreement by Starpower that is not cured within thirty (30) days written notice pursuant to Section 1.26; or
iii. any persistent failure by Starpower to comply with any of the provisions, terms or conditions of this OVS Agreement or with any rules, regulations, orders, or other directives of the City after having received written notice of a failure to comply.
d. No Independent Failure to Comply.  If, as a result of a failure or alleged failure to comply with a material provision of this OVS Agreement, Starpower is unable to comply with any other material provision(s) which necessarily and directly arise(s) out of said failure or alleged failure as delineated in said subsections, such inability to comply with such other provision(s) shall not be deemed to be an independent failure to comply with a material provision of this OVS Agreement.
e. Revocation Procedures.  The City shall exercise the rights provided in Section 1.26(b) hereof in accordance with the procedures set forth below:
i. The Executive Director shall notify Starpower, in writing, of an alleged failure to comply with a material provision of this OVS Agreement, which notice shall specify the alleged failure with reasonable particularity.  Starpower shall, within thirty (30) days after receipt of such notice or such longer period of time as the Executive Director may specify in such notice, either cure such alleged failure or, in a written response to the Executive Director, either present facts and arguments in refutation or excuse of such alleged failure or state that such alleged failure will be cured and set forth the method and time schedule for accomplishing such cure.
ii. The Executive Director shall determine (a) whether a failure to comply with a material provision has occurred; (b) whether such failure is excusable; and (c) whether such failure has been cured or will be cured by Starpower.
iii. If the Executive Director determines that a failure to comply with a material provision has occurred and that such failure is not excusable and has not been or will not be cured by Starpower in a manner and in accordance with a schedule reasonably satisfactory to the Executive Director, then the Executive Director shall prepare a written report which may recommend action to be taken pursuant to Section 1.26(a).  The Executive Director shall provide notice and a copy of such report to Starpower.  In the event that the Executive Director determines that such failure has not occurred, or that such failure either has been or will be cured in a manner and in accordance with a schedule reasonably satisfactory to the Executive Director, or that such failure is excusable, such determination shall conclude the investigation and a written determination shall be provided to Starpower within a reasonable period of time thereafter.
iv. If the last sentence of the immediately preceding paragraph is not applicable, the Executive Director may take any of the actions provided in Section 1.26(a) hereof.
v. Notwithstanding the foregoing this Section (iii), the Executive Director may terminate this OVS Agreement in the event that Starpower's Certification as an OVS operator terminates whether by action of Starpower or the FCC or otherwise.  Termination shall be effective immediately upon such event.  Nothing in this OVS Agreement shall prevent Starpower from applying to the City for a franchise to operate a Title VI Cable Communications System in the City, the issuance of which will terminate this OVS Agreement.
f. Termination.  The termination of this OVS Agreement and Starpower's rights herein shall become effective upon the earliest to occur of: (i) the termination of this OVS Agreement as provided by Section 1.26(b) hereof or (ii) the expiration of the term of this OVS Agreement as provided in Section 1.3 hereof.

Section 1.27 ·· MISCELLANEOUS PROVISIONS

(a)           Entire Agreement.  This instrument contains the entire OVS Agreement between the parties, supersedes all prior agreements or proposals except as specifically incorporated herein, and cannot be changed orally but only by an instrument in writing executed by the parties.

(b)          Captions.  The captions to sections throughout this OVS Agreement are intended solely to facilitate reading and reference to the sections and provisions of this OVS Agreement.  Such captions shall not affect the meaning or interpretation of this OVS Agreement.

(c)          Separability.  If any section, sentence, paragraph, term or provision of this OVS Agreement is determined to be illegal, invalid or unconstitutional, by any court of competent jurisdiction or by any State or federal regulatory agency having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which shall remain in full force and effect for the term of this OVS Agreement.

(d)           Affiliate Liability.  During the term of this OVS Agreement, Starpower shall be liable for the acts or omission of its Affiliates while such Affiliates are involved directly or indirectly in the operation of the OVS Services as if the acts or omissions of such Affiliates were the acts or omissions of Starpower.

(e)          Exhibits.  The Exhibits to this OVS Agreement, attached hereto, and all portions thereof, are incorporated herein by this reference and expressly made a part of this OVS Agreement.

(f)           Warranties.  Starpower warrants, represents and acknowledges that, as of the execution date of this OVS Agreement:

(i)            Starpower is duly organized, validly existing and in good standing under the laws of Delaware;

(ii)            Starpower has the legal right under applicable City and federal laws and regulations to operate its Open Video System in the City;

(iii)            Starpower has the requisite power and authority under applicable law and its bylaws and articles of incorporation and/or other organizational documents, is authorized by resolutions of its Board of Directors or other governing body, and has secured all consents which are required to be obtained as of the execution date of this OVS Agreement, to enter into and  legally bind Starpower to this OVS Agreement and to take all actions necessary to perform all of its obligations pursuant to this OVS Agreement;

(iv)            This OVS Agreement is enforceable against Starpower in accordance with the provisions herein; and


(v)            There is no action or proceedings pending or threatened against Starpower which would interfere with its performance of this OVS Agreement.

(g)           Notices to the City.  In addition to the statutory requirements of service upon the City, every notice to be served upon the City shall be delivered, or sent by registered or certified mail, return receipt requested (postage prepaid) or another form of delivery which requires a signed receipt, to Executive Director, Office of Cable Television, 2217 14th St., NW, Washington, DC 20009, or such other address as the City may specify in writing to Starpower.  The delivery shall be equivalent to direct personal notice, direction or order, and shall be deemed to have been given at the time of mailing.

(h)           Notices to Starpower.  Every notice served upon Starpower shall be delivered or sent by registered or certified mail, return receipt requested (postage prepaid) or another form of delivery which requires a signed receipt, to the General Manager, Starpower, 1130 Connecticut Avenue, NW, Suite 400, Washington, DC 20036, or such other address as Starpower may specify in writing to the City.  The delivery shall be equivalent to direct personal notice, direction or order, and shall be deemed to have been given at the time of mailing.

(i)           Execution.  To facilitate this execution, this OVS Agreement may be executed in as many counterparts as may be required.  It shall not be necessary that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of the counterparts.

(j)            Governmental Power.  The District shall have the right to exercise its governmental powers, now or hereafter, to the full extent that the powers may be vested in or granted to the District.

(k)           Action Taken by City.  Any action to be taken by the City and/or the Executive Director pursuant to this OVS Agreement shall be taken in accordance with the applicable provisions of the Home Rule Act, as said Act may be amended or modified throughout the term of this OVS Agreement.  Whenever, pursuant to the provisions of this OVS Agreement, the City, Starpower, or another Person is required or permitted to take any action, including, without limitation, the making of any request or the granting of any consent, approval, or authorization, the propriety of said action shall be measured against a standard of reasonableness.

(l)           Compliance with OVS Agreement.  On any dispute, claim or proceeding before the City between the parties to this OVS Agreement, Starpower shall have the burden of demonstrating its compliance with each term and condition of this OVS Agreement for all purposes.  From time to time upon the request of the Executive Director, Starpower shall have the burden of demonstrating for all purposes that, to the best of its knowledge, information and belief upon diligent inquiry, it is in compliance with, and has complied with, any term and condition of this OVS Agreement specified by the Executive Director.


(m)           Consent.  To the best of Starpower's knowledge after diligent inquiry, other than OVS certification issued by the FCC on January 26, 1998, no consent, approval or authorization of, or declaration or filing with, any public, governmental or other authority (including, without limitation, the FCC, the PSC or any other federal agency or any state, country, or municipal agency, authority, commission or the Mayor, and, if applicable, public utility commissions, telephone companies and other entities) on the part of Starpower is required for the valid execution and delivery of this OVS Agreement or any other agreement or instrument executed or delivered in connection herewith.

(n)           Licenses and Permits.  Starpower shall secure  all necessary permits and licenses in connection with the design, construction, operation, maintenance, upgrade or repair of the System, or any part thereof, from, and has filed all required registrations, applications, reports and other documents with, the FCC and, if applicable, the PSC and other entities exercising jurisdiction over the System.  Further, to the best of Starpower’s knowledge, information and belief upon diligent inquiry, no event shall occurred which could (i) result in the revocation or termination of any such license or authorization, or (ii) materially and adversely affects any rights of Starpower.  To the best of Starpower’s knowledge, information and belief upon diligent inquiry, no event has occurred which permits, or after notice or lapse of time or both would permit, revocation or termination of any such license or which materially and adversely affects or, so far as Starpower can now foresee, will materially and adversely affect the System or any part thereof.  Starpower has obtained all leases, easements and equipment rental or other agreements necessary for the maintenance and operation of the System.

(o)           Dispute Resolution.  The Parties intend to resolve any and all disputes arising out of or relating to the interpretation, application, performance or breach of any term or condition of this OVS Agreement through reasonable business negotiations, without resort to litigation.  Unless the Office requires otherwise, and regardless of the materiality or nature of said dispute, Starpower shall not cease or delay performance of its obligations under this OVS Agreement during the pendency of said disputes and shall pay all amounts due and owning under this OVS Agreement that are not subject to dispute or offset.


(p)           Waiver; Cumulative Remedies.No failure on the part of the City or Starpower to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other right, all subject to the conditions and limitations established in this OVS Agreement.  The rights and remedies provided herein are cumulative and not exclusive of any remedies provided by law, and nothing contained in this OVS Agreement shall impair any of the rights of the City or Starpower under applicable law, subject in each case to the terms and conditions of this OVS Agreement.  A waiver of any right or remedy by the City or Starpower at any one time shall not affect the exercise of such right or remedy or any other right or other remedy by the City or Starpower at any other time.  In order for any waiver of the City or Starpower to be effective, it must be in writing.  The failure of the City to take any action in the event of a material breach by Starpower shall not be deemed or construed to constitute a waiver of or otherwise affect the right of the City to take any action permitted by this OVS Agreement at any other time in the event that such material breach has not been cured, or with respect to any other material breach by Starpower.

(q)           No Opposition.  Starpower agrees that it shall not oppose the intervention by the City in any suit, action, or proceeding involving Starpower with respect to the System or its operation or any material provision of this OVS Agreement.  Except as to those matters which may subsequently be validly and finally preempted by federal or state law or regulation, or as to which the circumstances have changed subsequent to the Effective Date of this OVS Agreement, Starpower will not, at any time, set up against the City any claim nor institute against the City any proceeding alleging that a condition or term of this OVS Agreement is unreasonable, arbitrary, void, or otherwise unenforceable, under 42 U.S.C. § 1983 or otherwise, or that the City had no power or authority to make such term or condition at the time that it was made.  The use of the word "claim" above is not intended to limit the ability of Starpower to lobby or exercise its or their First Amendment rights, and Starpower's voluntary agreement to this Section and its willingness to enter into this OVS Agreement as a whole does not constitute any agreement that the City has the authority to impose, mandate or otherwise compel Starpower to agree to each and every one of the terms, conditions and obligations imposed herein.

(r)           Office Authority.  The Office shall be the administrative agency within the City responsible for protecting and promoting the public interest in OVS Services.  Therefore, the Office shall have the regulatory authority to enforce the provisions of this OVS Agreement consistent with applicable federal or City law.

IN WITNESS WHEREOF, this OVS Agreement is hereby signed under seal by the parties hereto as of the date first above written.

THE DISTRICT OF COLUMBIA             STARPOWER COMMUNICATIONS, LLC

BY:   ____________________________    BY:   _________________________________

Mayor                                                  Co-Chairman

BY:   _________________________________

Co-Chairman


EXHIBIT A

 

ACCESS CHANNEL FEEDS

Pursuant to Section 1.17 of this OVS Agreement, the following PEG Channels are to be distributed to all Starpower Subscribers:

Current Channel Designation                            Program Originator

10                                                        Public Access Corporation

11                                                        Public Access Corporation

13                                                        City Government

16                                                        City Government

18                                                        City Public Schools

19                                                        University of the District of Columbia


EXHIBIT B

District of Columbia

OVS Gross Revenue Fee Calculation

Fee Period:            __________________________________________________________

OVS Operator:   _______________________________________________________

Programming Affiliate(s) (if any):                                                                                   

OVS Operator Revenues (including Affiliate revenues):

18.       Video Subscriber Revenue                                                                      _____________

(i.e.revenue received by OVS Operator or Affiliate(s)

from subscribers for Video Programming services)

2. Advertising Revenue                          

(i.e.revenue received by OVS Operator or Affiliate(s)

from advertisers on the Video Programming distributed

by OVS Operator or Affiliate(s))

3. Programming Revenue                                              (i.e.revenue received by OVS Operator or Affiliate(s)

from programming producers)

4. Video Programming Provider Revenue                          

(i.e.revenue received by OVS Operator or

Affiliate(s) from Video Programming Providers

for OVS Transmission Services)

5. Other OVS Service Revenue                          

      TOTAL GROSS REVENUES:                              

                 5% OVS GROSS REVENUE FEE:               x 0.05 

                                                            AMOUNT DUE CITY:           ______________


EXHIBIT C

District of Columbia

Public Access Corporation Fee Calculation

Fee Period:            __________________________________________________________

OVS Operator:   _______________________________________________________

Programming Affiliate(s) (if any):                                                                                   

OVS Operator Revenues (including Affiliate revenues):

1.         Video Subscriber Revenue  _____________

(i.e.revenue received by OVS Operator or Affiliate(s)

from subscribers for Video Programming services)

2. Advertising Revenue _____________

(i.e.revenue received by OVS Operator or Affiliate(s)

from advertisers on the Video Programming distributed

by OVS Operator or Affiliate(s))

3. Programming Revenue                                               (i.e.revenue received by OVS Operator or Affiliate(s)

from programming producers)

4. Video Programming Provider Revenue                          

(i.e.revenue received by OVS Operator or

Affiliate(s) from Video Programming Providers

for OVS Transmission Services)

5. Other OVS Service Revenue                          

      TOTAL GROSS REVENUES                            

1% PUBLIC ACCESS CORPORATION FEE:                    x 0.01

 

      AMOUNT DUE PUBLIC ACCESS CORPORATION:           ______________