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SETTLEMENT
AGREEMENT
THIS SETTLEMENT AGREEMENT (“Agreement”)
is made and entered into this ___ day of ________________, 2008 (“Effective
Date”), by and between the City of Reno (hereinafter referred to
as the “City”) and Falcon Cable Systems Charter II, L.P., a
California limited partnership, d/b/a Charter Communications (hereinafter
referred to as “Charter”). City and Charter are sometimes collectively
referred to as the “Parties,” or singularly as a “Party.”
RECITALS
WHEREAS, the Parties acknowledge that certain legal questions and claims
have arisen relating to Charter’s plan to change the channel numbers
assigned to the City’s public, educational and governmental (“PEG”)
access channels; and,
WHEREAS, to avoid the costs, delay and uncertainty of litigation, the
Parties agree to enter into this Settlement Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements described
below, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties covenant and agree as follows:
Settlement of Claims.
The Parties acknowledge that certain legal questions and claims have arisen
relating to Charter’s plan pursuant to NRS 711.770(2) to change the
channel numbers assigned to the City’s PEG access channels (the “Dispute”).
Neither Party accepts or acknowledges the claims of the other. This Agreement
is intended as a full settlement of all claims regarding the Parties’
liability under all currently applicable franchise agreements, federal,
state and local laws, rules and regulations relating to the Dispute. Except
for the obligations set forth in this Agreement, Charter and City each
waives, releases, holds harmless and forever discharges the other Party,
its members, officers, directors, agents, employees, successors and assigns,
from any and all claims, costs or damages, whether known or unknown, which
either Party ever had, or now has, under any applicable franchise agreement,
federal, state or local law, rule or regulation regarding the Dispute.
Intention of the Parties. It is the intention of the Parties that
this Agreement shall be a full and final accord and satisfactory release
of each and every matter specifically or generally referred to herein.
The Parties further acknowledge that they may hereafter discover facts
in addition to or different from those which they now know or believe
to be true with respect to the subject matter referred to this Agreement,
but it is their intention to fully, finally and forever settle and release
any and all matters, disputes and differences, known or unknown, suspected
and unsuspected, which do not exist, may exist or heretofore have existed.
In furtherance of this intention the release set forth in Section 1 above
shall be and remain in effect as a full and complete general release notwithstanding
the discovery or existence of any such additional or different facts.
Coupon. Charter agrees to mail all “analog-only” subscribers
in Washoe County (as of the Effective Date of this Agreement) a coupon
redeemable for either: (i) use of one (1) digital cable box with courtesy
service concluding on December 31, 2009 (the “Courtesy Box”);
or, (ii) a discount on a new QAM Tuner television set from RC Willey (the
“Discount”). Subscribers shall be allowed to select between
the Courtesy Box and the Discount. Subscribers must make their selection,
and exercise the Coupon on or before December 1, 2009.
For those subscribers opting for the Courtesy Box, Charter agrees to provide
free installation and written notification of expiration of the courtesy
period by mail at least thirty (30) days prior to December 31, 2009. For
those subscribers opting for the Discount, the cash value of the coupon
will be dependent upon the price of the television set purchased, but
in no event will the cash value be less than $100.00 off the advertised
retail price of the television set purchased.
Discounts for Economically and Socially Disadvantaged Citizens. Charter
agrees to provide a discount of forty percent (40%) on broadcast and nonbroadcast
services provided at the lowest monthly charge, consisting of local stations,
access channels, and any other distant retransmission and/or satellite
channels (“Basic Rates”) for citizens with the City of Reno
whose income does not exceed such levels as indicated in the U.S. Department
of Housing and Urban Development Standards for very low income households
used in Community Development Block Grant Programs, as amended, and who
are either over sixty-five (65) years of age or permanently disabled.
The conditions determining handicap qualifications will be those of the
State of Nevada, Department of Human Resources Guidelines for Handicapping
Conditions, Section 1504.03, as may be amended The obligations set forth
in this Section shall remain in full force and effect until such time
as mutually modified or terminated by the Parties.
Combination Channel. Charter agrees to establish and maintain one
(1) analog channel for joint use by the cities of Reno and Sparks, and
Washoe County. The City agrees to work with Sparks and Washoe County to
establish a mutually acceptable broadcast schedule and programming. The
use of this channel shall be determined by the City of Reno or its designee.
On March 2, 2009, Charter may move the Combination Channel from the analog
tier to the digital tier.
Channel Mapping. Charter shall, at all times, continue to broadcast
four (4) PEG access channels at the dial positions of 213, 214, 216 and
217. Concurrently, Charter agrees digitally re-map said channels so they
may be seen on digital televisions on Channels 13, 14, 16 and 17. Channels
13 and 213 shall be for the sole use of the City of Reno. The obligations
set forth in this Section shall remain in full force and effect until
such time as mutually modified or terminated by the Parties.
Employee Identification. Charter shall provide a picture identification
document to all Cable Operator representatives who will be in contact
with the public. Members of the public shall be invited to call Charter's
main customer service telephone number to verify identification. In addition.
Charter shall clearly identify all field personnel, vehicles, and other
major equipment that are operating under the authority of Charter.
Settlement Fees Charter
shall pay to the City an annual Settlement Fee, payable quarterly, not
later than forty-five (45) days after the last day of each quarter throughout
the term of this Agreement ("due date") in the amount of five
percent (5%) of gross revenues, as determined in accordance with generally
accepted accounting principles and as defined in the Ordinance, derived
from the operation of the System to provide Cable Services. To the extent
that gross revenues for Cable Services are included within a fixed price
for which the Subscriber also receives services that are not Cable Services
(i.e. the Cable Services and non- Cable Services are "bundled").
Charter shall appropriately allocate a portion of such revenues for inclusion
in gross revenues that are subject to the foregoing fee. If the fixed
price of the bundled services is lower than the aggregate of the prices
of those services if purchased individually, then Charter shall allocate
a portion of such revenues for inclusion in gross revenues equal to the
aggregate of the prices of the bundled Cable Services if purchased individually.
Annexation Monies. Charter shall ensure that any additional monies
due to the City as a result of City Council approved annexations are incorporated
into Settlement Fee payments in the first quarter after such annexations
take effect. City shall provide Charter with copies of official annexation
ordinances.
Settlement Fee Report. In accordance with RMC § 5.90.1030(2),
Charter shall submit to the City a quarterly Settlement Fee Report, along
with each Settlement Fee payment throughout the term of this Agreement.
Annual Financial Statements In accordance with RMC § 5.90.1030(3),
on or before April 30* of each year, Charter agrees to provide to the
City a report showing the gross revenues for the previous year associated
with the System serving the City within the Service Area. Such report
shall be signed by a corporate officer. If the amount of the Settlement
Fee paid for the preceding calendar year in accordance with the quarterly
Settlement Fee Report is less than the amount indicated on the annual
Settlement Fee Report, Charter shall pay to the City the difference at
the time Charter delivers the annual Settlement Fee Report If the annual
Settlement Fee Report indicates that the amount of the Settlement Fee
paid for the preceding calendar year in accordance with the quarterly
Settlement Fee Report is more than the amount indicated on the annual
Settlement Fee Report, Charter shall apply such overpayment as a credit
against its next quarterly payment or, after the end of the term, the
City shall promptly refund such amount.
Payment Audits. No acceptance of any Settlement Fee payment by
the City shall be construed as an accord and satisfaction that the amount
paid is in fact the correct amount or a release of any claim that the
City may have for further or additional sums payable under this Agreement,
and all amounts paid shall be subject to audit as specified in the Ordinance.
Charter shall make relevant books and records available to the City. However,
Charter shall only be required to keep such records for the same period
as the State of Nevada statute of limitations.
Underpayment Remedy If, as a result of such audit or other review,
the City determines that Charter has underpaid its fees in any prior twelve
(12) month period by five percent (5%) or more, then, in addition to making
full payment of any non- contested amounts, Charter shall reimburse the
City for all of the reasonable costs associated with the audit or review,
including all reasonable out-of-pocket costs for attorneys and accountants.
Payments not Taxes. The parties agree that the compensation and
other payments to be made pursuant to this Section of this Settlement
Agreement are not a tax and are not in the nature of a tax and are in
addition to any and all taxes of general applicability which Charter shall
be required to pay to the City.
Interest on Late Payments If any payment required by this Agreement
is not actually received by the City on or before lie applicable date
fixed in this Agreement or by the City, Charter shall pay interest at
the rate of 12 percent per annum of the amount due, if such percentage
does not exceed the legal maximums, from the date due, until paid.
Public, Educational and Governmental (TEGO Access Channels)
Number of PEG Channels
Charter shall provide PEG
channels as designated below. The Future Use Channel shall be used for
governmental or educational access by the City. Charter shall not be
required to provide channel unless the current non-educational channels
are being utilized for cablecasting at least one hundred (100) hours
per month by unduplicated video programming, and further, that additional
contemplated PEG programming cannot effectively utilize channel during
the time that is available.
| Type
|
Allocated
to |
Channels |
| Government
Access |
City
of Reno |
1
channel on the basic tier |
| Public
Access |
Shared
between City of Reno, Sparks, Washoe County and the Washoe County
School District |
1
channel on the basic tier |
| Government/Educational
Access |
City
of Reno |
1
channel on the digital tier |
| Future
Use Channel – Government/Educational |
City
of Reno |
1
channel on the digital tier |
Public Buildings.
Charter shall, as part of its commitment to the residents of Reno, provide
without charge to the City for installation or monthly fees for Basic
Service, One (1) standard service drop to all Eligible Public Buildings
within the Franchise Service Area which are located 150 feet or closer
to Charter's System and shall terminate the drop at a mutually agreed
upon site. 13.2.1. For non-standard installations or drops in excess of
150 feet, Charter shall construct the drop at the request of the City
or appropriate agency provided that the City or appropriate agency shall
pay the incremental costs of such non-standard installation or extension
beyond 150 feet, calculated on a time and materials basis and including
an allocated portion of the wages and overhead of Charter's employees
as well as actual cost of outside labor.
On request from the appropriate official, and if the City or appropriate
agency is willing to pay the costs of material and labor for running the
specified cable that exceeds the costs that would have been incurred for
the standard drop cable, Charter will run cable other than a standard
drop cable to a public building which plans to amplify the signal for
internal distribution.
Charter shall provide Basic and Expanded Basic Service, or its equivalent,
to such buildings free of charge.
For purposes of this Section, the term "standard drop" shall
mean placement of cable from the System to the point of termination that
does not involve any of the following: (a) a cable distance greater than
one hundred fifty (150) feet; (b) placement of cable underground outside
of an Underground Area; or, (c) placement of cable underground.
The City may request the installation of a drop to an Eligible Public
Building at any time. Charter shall install a standard drop promptly,
and no later than one (1) month after such request. A non-standard drop
from a completed portion of the System shall be installed within thirty
(30) days after the City has approved the work-order for the installation
and agreed in writing to reimburse Charter for all costs associated with
a non-standard drop installation. If the request is made prior to completion
of construction of the relevant portion of the System, Charter shall make
good faith efforts to improve upon the aforesaid delivery time periods
if it can do so by integrating such work into the schedule along with
other similar work in the neighborhood, provided that Charter shall not
be obligated to defer connections to Subscribers in order to complete
this work.
Insertion Points Charter shall provide without charge insertion points
to allow connectivity for PEG programming on its cable systems to the
following locations:
490 S. Center Street
Truckee Meadows Community College, Main Campus.
Regional Public Safety Training Center
1 East 1ST Street— New City Council Chambers.
Downtown Events Center
Washoe County School District Administrative Offices located on 9TH
Street
Wingfield Park.
Support for Access.
Charter’s contribution to the City for Access Support shall be provided
pursuant to the following terms and conditions regarding Access Capital
Grants
$250,000 grant within thirty
(30) days of the Effective Date of this Settlement Agreement
$100,000 upon the first anniversary of the Effective Date of this Settlement
Agreement.
$100,000 upon the second anniversary of the Effective Date of this Settlement
Agreement
$100,000 upon the seventh anniversary of the Effective Date of this
Settlement Agreement
$100,000 upon the twelfth anniversary of the Effective Date of this
Settlement Agreement
No Other Filings. Each
of the Parties represents and warrants that it has not filed any lawsuits,
charges, complaints, petitions, or accusatory pleadings against the other
party or any person or business entity released herein with any federal,
state or local governmental agency or in any court of law.
Non-Admission of Liability. The Parties acknowledge and agree that
this Agreement and the consideration given hereunder have been given and
received purely on a compromise of a disputed claim basis because the
Parties desire to avoid the expense and burden of protracted litigation,
and is not to be construed or used as a admission by either Party of any
liability whatsoever, nor shall it be construed or used as an admission
of any act or fact whatsoever.
Applicable Law. This Agreement shall be interpreted under and pursuant
to the laws of the State of Nevada.
Severability. If any term, provision, covenant or condition of
this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the provisions shall continue
in full force and effect unless the rights and obligations of the Parties
have been materially altered or abridged by such invalidation, voiding
or unenforceability.
Legal Actions. In the event any legal action is commenced to interpret
or to enforce the terms of this Agreement or to collect damages as a result
of any breach thereof, the Party prevailing in any such action shall be
entitled to recover against the Party not prevailing all reasonable attorney's
fees and costs incurred in such action.
Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the heirs, administrators, executors, successors in
interest and assigns of each of the Parties hereto except that there shall
be no transfer of any interest by any of the Parties hereto except pursuant
to the terms of this Agreement. Any reference in this Agreement to a specifically
named Party shall be deemed to apply to any successor, heir, administrator,
executor or assign of such Party who has acquired an interest in compliance
with the terms of this Agreement, or under law.
Complete Understanding of
the Parties. This Agreement consists of the text of the Agreement
and the attached Exhibits, if any, and constitutes the entire understanding
and agreement of the Parties.
WHEREFORE, the Parties have executed this Agreement in triplicate on or
as of the date first above written.
FALCON CABLE SYSTEMS
COMPANY II, L.P.,
d/b/a Charter Communications
a California limited partnership
Date:
By:
Name: ______________________________
Its: ________________________________
CITY:
THE CITY OF RENO,
a municipal corporation of the State of Nevada
By:
Name: Robert A. Cashell, Sr.
Title: Mayor
Date:
ATTEST:
By:
Name: Lynnette R. Jones
Title: City Clerk
APPROVED AS TO FORM:By:
City Attorney’s Office
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