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DUPLICATE
mulli THIS IS A LASE, nade thie 205k day osBoater.
1984, by and between the City of Fullerton, hereinafter referred to as "LESSOR, " and Group W Cable, Inc., hereinafter referred to as "TENANT."
WHEREAS, LESSOR, by Ordinance No. 2326 adopted July 8,
1980, created a cable television (CATV) franchise, hereinafter referred to as "FRANCHISE," and
WHEREAS, said FRANCHISE allows TENANT to locate CATV
appurtenant equipment at LESSOR'S Hubert C. Ferry Reservoir Site, hereinafter referred to as "SITE," and
WHEREAS, it is the desire of the parties to formalize
an agreement to cover TENANT'S occupancy of and equipment located at SITE;
NOW, THEREFORE, the parties hereby agree as follows:
1. DEMISED PREMISES. LESSOR hereby leases to TENANT
a portion of that certain parcel of land in the City of Fuller- ton, known as the Hubert C. Ferry Reservoir Site, hereinafter referred to as "Demised Premises, " generally shown on "Exhibit 'A', " which exhibit is attached hereto and by this reference made a part hereof.
2. LIMITATION OF THE LEASEHOLD. This Agreement and
the rights and privileges granted TENANT in and to the Demised Premises are subject to all covenants, conditions, restrictions and exceptions of record or apparent. Nothing contained in this Lease or in any document related hereto shall be construed to imply the conveyance to TENANT of rights in the Demised Premises which exceed those owned by LESSOR.
720 d
Attachment 2
39•
3. USE. TENANT'S use of the Demised Premises shall
be limited to CATV antennas, earth receiving stations, and other head-end facilities and appurtenances. TENANT'S use of the SITE shall not interfere with LESSOR'S primary use as a water storage and distribution facility.
4. ACCESS TO DEMISED PREMISES• TENANT shall be gran-
ted reasonable access to the Demised Premises for purpose of construction, maintenance, and operation of its head-end and associated equipment. TENANT agrees to provide LESSOR, at least every six (6) months, with a list of personnel who are authorized on the Demised Premises. LESSOR shall issue keys, if required,. to TENANT's personnel.
As a condition of this Lease, TENANT agrees to install
and maintain a remote controlled or key card activated, electric.- ally operated security gate at the entrance to the reservoir site, Said security gate shall be instailed subject to City approval of plans and specifications. Utility costs for said security gate shall be paid by TENANT. Remote control operating devices or key cards for LESSOR shall be provided by TENANT at TENANT'S sole cost.
5. TERM. The term of this Lease shall commence the
first day of the first full calendar month following the date of execution by LESSOR, and terminate concurrently with the CAT Franchise pursuant to Section 3.14.050 of the Fullerton Municipa1 Code, or as otherwise provided for herein.
Lease to 2003
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6. RENT. Pursuant to Section 3.14,100 (D) of sald
Franchise, TENANT is permitted at no cost. to locate head-end facilities and appurtenant structures at the Hubert C. Ferry.
Reservoir during the term of the Fullerton Franchise . to serve the Fullerton system.
Notwithstanding the above-referenced arrangement,
TENANT shall require additional space to expand its head-end facility and appurtenances to serve TENANT'S Placentia system.
In consideration for the additional space required, TENANT agrees • to pay LESSOR the sum of $15,000 each year for the duration of the Lease. : Payment shall be made in advance, payable on April 15th of each year, commencing on April 15, 1984. Rental payments by TENANT are in lieu of right-of-way licenses or encroachment permit fees, if any, which are or may become applicable to the use of the Premises, appurtenant structures and rights-of-way required to serve TENANT'S Placentia system.
7. REVISION OF RENTALS. On January 1, 1988, and
every year thereafter, the rental specified in Clause 6, (RENT) , shall be subject to autonatie annual adjustments in proportion to changes in the Consumer Price Index for Los Angeles/Long Beach/ Anaheim (Al1 Urban Consurers - All Items) promulgated by the Bureau of Labor Statistics of the U.S. Department of Labor, or any replacement index thereto.
The automatic adjustment shall be effective on each
following anniversary of the effective date of the lease and shall be calculated by means of the following formula:
- 3-
* = A × 3
X = Adjusted Rental
A = $15,000
B = Average monthly index for the 12 calendar months
ending with and inaluding the fourth month prior to the month in which each rental rate adjustment is to become effective.
C = Average monthly index for the 12 calendar months
ending with December 31, 1987.
8. UTILITIES. TENANT Will pay promptly when due all
gas, electric, water and other utility bills applicable to the Demised Premises during TENANT'S occupancy and will save LESSOR harmless therefron.
9. USE OF TENANT'S IMPROVEMENTS BY LESSOR.
a. TENANT shall construct and/or provide and
maintain space at its head-end site for the operation of LESSOR'S radio trananitters, receivers and related equipment. At such time as TENANT installs emergency powex for the head-end site, said emergency power capability shall be provided for LESSOR'S equipuent. TENANT shall have no liability of any kind with respect to the emergency power, including its failure to operate or improper operation.
b. TENANT agrees to install and maintain an
intrusion alarm system to prevent unauthorized entry and/or access to LESSOR'S equipment at the head-end site. Said alarm system shall be connected directly to the appropriate alarm -4-
signaling equipment at the Fullerton Police Department. TENANT shall have no liability for the operation or non-operation of the intrusion alarm system.
c. TENANT agrees to continue to provide LESSOR
with space on TENANT'S radio tower for any of LESSOR'S trans- mitting and receiving antennas in place as of the date of exec- ution of this Agreement. LESSOR may not install any additional antennas or other equipment on said tower unless it first obtains TENANT'S written permission to do so. Conduit connecting said tower with head-end space provided by TENANT to LESSOR shall also be installed and maintained.
d. LESSOR'S use of any of the facilities at the
demised premises shall in no way interfere with TENANT'S use of the premises as a head-end, transmission, receiving and/or routing installation for cable television conmunication.
10. REPAIRS, ALTERATIONS OR IMPROVEMENTS. LESSOR is
not obligated to make any repairs, alterations or improvements.on the Demised Premises of any nature whatsoever unless the repairs, alterations or improvements are reguired as a result of the conduct of lessor. TENANT will not construct any improvements in or on said Demised Premises without first obtaining a building permit if such is reguired by the City of fullerton or any other governmental agency.
11. ASSIGNMENT. Assignment of TENANT'S interest in
the Demised Premises or any part or portion thereof is permitted upon approval of LESSOR, which approval shall not be unreasonably withheld.
-5-
$T/90°d
12. MAINTENANCE OF PROPERTY. TENANT Will keep the
Demised Premises free from debris and in a neat, clean and orderly condition at all times. Stozage of materials or equipment outside of the head-end structure is prohibited.
TENANT will not peimit rubbish, garbage, etc., to
accumulate at any times not conmit, suffer or permit any waste of said premises or any acts to be done in violation of any laws or ordinances; nor use or permit the use of the Demised Premises foi any illegal or immoral purposes, but will comply with all state laws and local ordinances concerning said premises and the use thereof.
13. DEFAULT IN TERMS OF THE LEASE BY TENANT- Should
TENANT default in the performance of any material covenant, condition or agreement contained in thig Lease and such default Is not corrected Within a reasonable time after TENANT receives written notice of default from LESSOR, LESSOR may:
a. Terminate this Lease. All rights of TENANT
and those who claim under TENANT, stemming from this Lease, shal1 end at the time of such termination; or
b. At LESSOR'S sole option, cure any such
default by performance of any act, including payment of money, and add the cost thereof to the rent.
c. Bring legal action for special performance,
damages and/or other available legal or equitable remedies. 6
14. COSTS OF SUSTAINING AN ACTION FOR BREACH OR
DEFAULT. In the event either LESSOR OI TENANT commences legal action against the other claiming a breach or default oF this Lease, the prevailing party in such litigation shall be entitled to recover from the other costs of sustaining such action, including reasonable attorneys' fees, as may be fixed by the Court.
15. INSURANCE• TENANT shall maintain Insurance
acceptable to LESSOR in full force and effect throughout the term of this Lease. The policy or policies of insurance maintained by TENANT shall provide the following limits and coverages:
PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE
Coverage Minimum Limits
Public Liability $2,000,000
Property Damage 500,000
Insurance shall be in force from the first day of the
• teim of this Lease.
Each insurance policy reguired by this Lease shall
contain the following three clauses:
2. "This Insurance shall not be cancelled,
Limited In scope of coverage of non-renewed until after thirty (30) days' written notice to LESSOR."
b. "It is agreed that any insurance maintained
by the City of Fullerton will apply in excess of, and not contribute with, insurance provided by this policy."
7 t7/80°d
C. "LESSOR is added as an additional insured as
respects operations of the named insured at or from premises leased from LESSOR."
TENANT agrees to deposit with LESSOR, upon reguest by
LESSOR, at or before the effective date of this Lease, certifi- cates of insurance necessary to satisfy LESSOR that the insurance provisions of this Lease have been complied with and to keep such insurance in effect and the certificates therefor on deposit with LESSOR during the entire term of this Lease.
16. AMENDMENTS. This Lease sets forth all of the
agreements and understandings of the parties and any modification must be written and properly executed by both parties.
17. INSPECTION, LESSOR oI its authorized representa-
tive shall have the right at all reasonable times to inspect the Demised Premises to determina if the provisions of this lease 'are being complied with.
18. INDEMNIFICATION. TENANT agrees to accept the
Demised Premises in as "as-is" condition and shall indennify and -
save harmless LESSOR, its officers, agents and employees ftom and against any and all claims, demands, loss, legal and investiga- tion expenses, or liability of any kind or nature which LESSOR, its officers, agents and employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons, or damage to property as a result of, arising out of, or in any manner connected with this lease or with occupancy and use of the Demised Premises by TENANT, Its officers, agents, employees, subtenants, licensees, patrons or visitors, except -8-
•J9•
liability arising out of the negligence or intentional torts of LESSOR.
LESSOR shall indemnify and save harmless TENANT, its
officers, agents and employees fron and against any and all claims, demands, loss, Legal and investigation expenses, or liability of any kind or nature which TENANT, its officers, agents and employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons, or damage to property as a result of, arising out of, or in any manner connected with this Lease or with occupancy and use of the Demised Premises as a result of the conduct of LESSOR, its officers, agents and employees.
19. REMOVAL OR ABANDONMENT OF IMPROVEMENTS. In the
event this Lease is terminated, tenant agrees to remove any and al1 such improvements, notwithstanding their beconing affixed to and part of the realty or to abandon them in accordance with the terms of Section 3.14.110 of the Fullerton Municipal Code. The payment of costs for said removal of improvements shall be the responsibility of TENANT.
20. NOTICES. All notices pursuant to this lease shall
be addressed as set forth below or as either party may hereafter designate by wiitten notice, and shali be sent through the United States Mail:
TO: LESSOR
CITY OF. FULLERTON
303 West Commonwealth Avenue
Fullerton, California 92632
39 TO: BONANT
GROUP W CABLE, INC.
1501 West Commonwealth Avenue
Fullerton, California 92633
With Copy To:
GROUP W CABLE, INC.
Law Department
888 Seventh Avenue
New York, New York 10106
21. ATTACHMENTS TO IBASE. This Lease includes the
following, which is attached hereto and made a part hereof:
EXHIBIT "A" (MAP OF DEMISED PREMISES)
IN WITNESS WHEREOF, the parties hereto have executed
this ease on the date written above.
CITY OF FULLERTON
A Municipal Corporatio
BY
Mayor
GROUP W CABLE, INC.
By mine.
Regional Vica President
ATTEST:
Came fash
City Clerk
APPROVED AS TO FORM:
city Attorney
621989277876 01 B8595
56212
7.92 ACRES 206.93
П = 1100.9/ h= 11°1.5
RESERVOIR NO. 2
• CAPACITY
HEADEND SITE 5, M. G.
I = 1006.09' 1=6°55' 227.70 NORTI ACACIA
161,79
RESERVOIR NO. I AVE
CAPACITY
5. M. G.
124.04 91*26'40"E
•
BARN AN AARMINIM SITE PLAN CITY OF FULLERTON li= 216.14 ^=21°2t' ORiVE MUNICYPAL WATER DEPARTMENT 181.21 1114°01'10"/ DEL MAR 11 = 25" A= 55°34" 1=21.25
12.10' 525"12'20" VISTA
20's01
/EXHIBIT.A
918142606129 OL
SEP 15 '03 16:54 FR ADELPHIA
MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY
OF FULLERTON, CALIFORNIA AND TIME WARNER NY
CABLE LLC RELATING TO THE TERMS AND CONDITIONS
UPON WHICH THE EXISTING CABLE TELEVISION
FRANCHISE WILL BE RENEWED
This Memorandum of Understanding (the "MOU"') constitutes a valid and binding contractual agreement between the City of Fullerton, California (the "City"), a California municipal corporation organized and existing under the State of California, on the one hand, and Time Warner NY Cable LLC ("Franchisee") on the other, upon acquisition of the franchise currently held by Adelphia Cablevision of Orange County, LLC (the "Franchise"), and is dated as of June 20, 2006. The MOU shall constitute a valid and binding obligation of the parties, enforceable through the laws of contract, and is hereby deemed by the parties to be consistent and enforceable under all relevant provisions of federal and state law. The parties agree and acknowledge that the City has accepted and relied upon the Franchisee's voluntary execution of this MOU in partial consideration of its approval of the Proposed Transactions, as that term is defined in the "Agreement Relating to the Consent of the City of Fullerton to the Transfer of the Franchise Agreement Held by Adelphia Cablevision of Orange County, LLC to Time Warner NY Cable LLC" ("Transfer Agreement").
Section 1. Franchise Term.
Franchise term of ten (10) years to terminate December 31, 2016; such term to commence December 31, 2006 unless the parties hereto agree in writing otherwise.
Section 2. PEG Support.
The Franchisee shall provide funding for public, educational and governmental ("PEG") access as follows:
I:11710\048 Signature Documents Fullerton Fullerton MOU Final 061206.doc
SCANNED
12D0
(a) The Franchisee shall pay the City an initial PEG Access grant ("Initial PEG Access Grant") by no later than January 31, 2007, the sum of which shall equal the number of Franchisee's cable television subscribers. who pay for the basic service tier ("BST") of cable television service residing in the City ("Subscriber") as of December 31, 2006 multiplied by $28.00. By way of example, if there are 1500 such Subscribers on December 31, 2006, the payment would be $42,000 ($28 x 1500). The obligations incurred pursuant to this Section (a) shall be deemed to be incurred on December 31, 2006, unless the parties hereto agree in writing otherwise.
(b) Commencing January 1, 2007, Franchisee shall provide a monthly PEG grant (the "Ongoing PEG Grant") of $.50 per Subscriber per month. With respect to bulk accounts, Franchisee shall pay such $.50 based on an equivalent subscriber account (total bulk revenues divided by the published BST rate). The Ongoing PEG Grant set forth herein is in lieu of and replaces any PEG Access Support (as such term is defined hereinbelow) obligations in the Franchise or otherwise as of January 1, 2007.
(c) Upon request, the City shall provide Franchisee with an annual accounting of the expenditures of both the Initial PEG Access Grant and the Ongoing PEG Grant (collectively, the "PEG Grants") provided for herein to ensure such grants are used for PEG access capital and non-capital purposes. If Franchisee believes the City has failed to demonstrate compliance with the foregoing requirement, Franchisee shall provide the City, within thirty (30) days of receipt of an annual accounting, notice of its objections to the use of the PEG Grants, or either of them. The parties shall thereafter meet at the reasonable request of either party to address the objections identified by Franchisee. If Franchisee reasonably concludes that the City has expended the PEG Grants, or either of them, in a manner inconsistent with the limitations 11710104815ig nature Documents Fulferton Fullerton MOU Final 061206.doc 2 imposed herein, the Franchisee may, after thirty (30) days notice to the City advise the City of its intention to implement a credit on its next regularly scheduled franchise fee payment in the amount of any expenditure inconsistent with PEG access purposes. If the City disputes Franchisee's allegations) and the City commences a franchise violation against Franchisee, then Franchisee shall pay the City the disputed amounts and the City shall hold the disputed monies in a separate interest bearing account until a final order is issued by a court of competent jurisdiction and all appeals are exhausted. Any monies, including interest on such monies, so held by the City shall be distributed in accordance with such final order (after exhaustion of any and all appeals) or as the City and Franchisee may agree. (d) The Ongoing PEG Grant shall continue throughout the duration of the Franchise unless otherwise directed in writing by the City. Subject to the provisions of paragraph (c) hereof, the Initial PEG Grant and the Ongoing PEG Grant may be used for equipment, facilities, and ongoing staffing and non-capital support for both one-way video PEG access services and two-way interactive PEG access services (collectively, "PEG Access Support"), at the City's sole discretion without offset or recoupment to the franchise fee or any other payment due the City. The Ongoing PEG Grant shall be paid to the City on a quarterly basis.
(e) The Franchisee agrees that the commitments indicated in this Section 2 shall not be charged against any franchise fees due the City during the term of the Franchise.
The Franchisee agrees to meet all of the commitments of Section 2 through the term of the Franchise.
I:117104048 Signature Documents Fulierton Fullerton MOU Final 061206 doc 3 (f) The City specifically reserves the right to grant, at any time, such additional franchises for a cable television system or authorizations which include the right to transmit video programming over closed transmission paths in the City (Additional Franchise"), as it deems appropriate, subject to applicable state and federal law, provided that if the City grants an Additional Franchise, then, unless expressly prohibited by law, such Additional Franchise shall, when taken as a whole contain no more favorable or less burdensome terms and conditions than those contained herein; provided, however, all franchises, including an Additional Franchise, shall be subject to the same material financial obligations (i.e., franchise fee payments and PEG Access Support obligations). Upfront PEG access capital grant obligations will be calculated on a pro-rata basis based on the term of the new franchise compared to that term granted hereunder. Monthly per customer PEG access grant payments will be based on the Franchisee's current obligation at the time that any additional franchise is awarded.
In the event the City elects to grant an Additional Franchise as provided in paragraph (t) hereof, the City will notify Franchisee in writing at least sixty (60) days in advance of granting such Additional Franchise, with a copy of the proposed Additional Franchise.
Within thirty (30) days after receipt, Franchisee may give written notice to the City that the proposed Additional Franchise is inconsistent with (f) above ("Notice of Inconsistency").
11171010481S ignature Documents/Fullerton Fullerton MOU Final 061206 doc 4 In the event Franchisee provides the City with a Notice of Inconsistency, the City shall, prior to granting the Additional Franchise, notify Franchisee of the City's determination related to Franchisee's Notice of Inconsistency.
If the City determines that the terms of an Additional Franchise are more favorable or less burdensome than those imposed upon Franchisee, then the City shall:
(a) Make such modifications as it deems necessary to ensure that the terms of the Additional Franchise are no more favorable or less burdensome than those imposed upon Franchisee; or
(b) Modify the terms and requirements of Franchisee's
Franchise as mutually agreed to by the parties.
Section 3. Franchise Renewal Agreement.
(a) The parties shall negotiate in good faith for the purposes of development and mutual execution of a franchise renewal agreement (the "Renewal Agreement") including the terms and conditions hereof. The parties shall meet and confer as appropriate and necessary for the purposes of achieving this result.
(b) If the parties are not able to mutually agree to a Renewal Agreement containing terms and conditions acceptable to all parties on or before December 31, 2006 (the "Negotiation Period"), the Franchise shall be, as of December 31, 2006, reinstated if expired and extended as modified by the terms and conditions of this MOU for a period specified in Section I hereof (the "Franchise Extension"). If the Franchise Extension occurs, the existing terms and conditions of the Franchise shall remain in effect except those terms and conditions of the I:\171000481Signature Documents Fullerton Fullerton MOU Final 061206.doc 5 :
Franchise shall be deemed amended and superseded to the extent inconsistent with the terms and conditions of this MOU. In the event of any conflict between the express provisions of the Franchise and this MOU, the MOU shall govern. In the event of any ambiguity regarding the joint interpretation of the Franchise and the MOU, the Franchise shall be interpreted in such a manner as to effectuate the terms and conditions of the MOU to the maximum extent possible.
All provisions of the Franchise which are not affected by the MOU shall remain in full force and effect.
(c) This MOU shall be effective upon its approval by the City Council; provided, however, if the Proposed Transaction (as that term is defined in the Transfer Agreement) does not close by December 31, 2006, then this MOU shall be void and of no further force or effect.
TIME WARNER NY CABLE LLC CITY OF FULLERTON, CALIFORNIA
By: By:_
Its: inve Sments Its: CITY MANAGER
Dated: 6/15/07 Dated: 6/21/06
1:117101048\Signature Documents|Fullertan\Fullerton MOU Final 061206 doc 6
AGREEMENT RELATING TO THE CONSENT
OF THE CITY OF FULLERTON TO THE TRANSFER OF
THE FRANCHISE AGREEMENT HELD BY ADELPHIA CABLEVISION OF ORANGE
COUNTY, LLC TO TIME WARNER NY CABLE LLC
This Agreement (the "Transfer Agreement") is entered into this 20th day of June, 2006, WHEREAS, the City of Fullerton enacted Chapter 3.14 (the "Ordinance") for the purpose of establishing a procedure for the granting of franchises for cable television systems; and WHEREAS, Teleprompter Corporation was granted a franchise dated August 7, 1980 by the City pursuant to Ordinance No. 2326, as amended by Ordinance Nos. 2368, 2476 and 2519 to construct, improve, operate and maintain a cable television system within the City (the "System") as more particularly defined therein (the "Franchise Agreement"); and WHEREAS, the Franchise Agreement was transferred to Group W Cable, Inc. pursuant to Resolution No. 6932 dated March 2, 1982; and
WHEREAS, the Franchise Agreement was transferred to GWC 27, Inc. pursuant to an agreement between the City Council of the City of Fullerton and Comcast Cable Communications, Inc. approving the transfer of the cable television franchise from ARP Cable Inc. (formerly Group W Cable, Inc.) to GWC 27, Inc., a wholly-owned subsidiary of Comcast Cablevision Corporation of California, a wholly-owned subsidiary of Comcast Holdings, Inc., a wholly-owned subsidiary of Comcast Cable Communications, Inc. ("1987 Transfer Agreement") approved by the City pursuant to Ordinance No. 2610 dated May 6, 1987; and WHEREAS, the Franchise Agreement was transferred to Transferor pursuant to an agreement relating to the consent of the City of Fullerton to the transfer of the franchise agreement held by Comcast Cablevision of Orange County, LLC, settlement of certain disputes, and franchise extension ("2000 Transfer Agreement") approved by the City pursuant to Resolution No. 9204 dated December 5, 2000; and
WHEREAS, pursuant to an Asset Purchase Agreement dated April 20, 2005 between A delphia and TWNY, the Syster and the Franchise Agreement are to be transferred to TWNY an indirect subsidiary of Time Warner Cable (the "Proposed Transaction"); and WHEREAS, on June 14, 2005, TWNY and Adelphia-Orange filed FCC Form 394 (the "Application") describing the Proposed Transaction; and WHEREAS, the City Council of the City has reviewed the Proposed Transaction, as well as all relevant documents, staff reports and recommendations, the operation of the System and compliance with the Franchise Agreement and applicable law; and WHEREAS, the Proposed Transaction with respect to the System cannot go forth without written consent of the City pursuant to the Ordinance; and 1171040481Signature Documents FullertonFulleron Transfer Agreement Final 060906 DOC 1200 SCANNED
WHEREAS, the City has identified certain compliance issues and Adelphia-Orange has indicated its willingness to resolve these issues and therefore, Adelphia-Orange and the City have entered into a separate Settlement and Mutual Release Agreement dated as of June 20, 2006 (the "Settlement Agreement"), and
WHEREAS, based upon the evidence presented to the City Council, it has determined that it would be in the public interest to approve the Proposed Transaction.
NOW, THEREFORE, it is agreed by and between the parties as follows:
The City Council of the City hereby gives its consent and approval to the Proposed Iransaction whereby the Franchise Agreement and the System, including all of the assets thereof, shall be acquired and held by the Franchisee with the performance of all obligations pursuant to the Franchise Agreement, the Ordinance, the 1987 Transfer Agreement, the 2000 Transfer Agreement and this Transfer Agreement guaranteed by Time Warner Cable upon closing of the Proposed Transaction.
2. The granting of the consent to the Proposed Transaction, or the consents described in Paragraph 1 above, do not surrender or waive the right of the City to approve any subsequent change not described herein in the ownership of the Franchise Agreement or the ownership or control of the Franchisee, and the Franchisee agrees to comply with all requirements in the Franchise Agreement governing any franchise transfers and any material change, amendment, or modification of the ownership of the Franchisee and/or change in control of the Franchisee.
3. By executing this Transfer Agreement, the City and the Franchisee agree and acknowledge that this Transfer Agreement and consent resolution is not a new franchise agreement, the granting of a franchise, or the renewal of the existing franchise, but rather is exclusively an agreement to transfer the Franchise Agreement and this Transfer Agreement neither affects nor prejudices in any way the City's rights nor the Franchisee's rights thereunder, and that compliance with the Franchise Agreement as it exists as of the date of this Transfer Agreement, and assuming the economic impact, or lack thereof, of federal, state and local statutes and administrative regulations existing as of the date of this Transfer Agreement, is neither commercially impracticable as the term is used in Section 625 of the Cable Communications Policy Act of 1984 and/or the Cable Television Consumer Protection and Competition Act of 1992 (collectively the "Cable Act") nor economically infeasible upon closing of the Proposed Transaction based upon (i) any and all debt service incurred, or to be incurred, by the Franchisee, or any related entity, to directly or indirectly finance the Proposed Transaction or (ii) any return on equity investment made, or to be made, by the Franchisee or any related entity, based upon the equity portion of the financing provided for the Proposed Transaction.
4. The Franchisee agrees and acknowledges that from and after the closing of the Proposed Transaction, it accepts the Franchise Agreement, the Ordinance, the 1987 Transfer Agreement, the 2000 Transfer Agreement and this Transfer Agreement, including the Memorandum of Understanding being entered into pursuant to this Transfer Agreement (collectively, the "Legal Documents"), to be legally sufficient, valid, and binding and agrees to accept and abide by the same without condition or reservation. To the extent that the City or the Franchisee, or any related person or entity, challenges the validity or interpretation, or seeks the enforcement, of said above-listed Legal Documents in the future in any administrative 2 1:1171010481Signacure Documents Fuilerton Fullerton Transfer Agreement Final 060906.DOC proceeding or court of law, such a challenge or enforcement action shall be subject to all defenses which would have been available to the City or the Franchisee had Adelphia-Orange or Adelphia or any related person or entity, brought said challenge(s) including, but not limited to, waiver, estoppel, consent, unclean hands and accord and satisfaction, as well as any and all defenses independently available to the City or the Franchisee.
5. Any material violation of this Transfer Agreement shall be deemed to be a violation of the Franchise Agreement.
6. The City hereby gives notice that the Proposed Transaction may create a taxable possessory interest upon which Franchisee may be liable for the payment of certain taxes. The Franchisee acknowledges that this section constitutes valid notice for the purpose of Revenue and Taxation Code Section 107.6.
7. By executing this Transfer Agreement, the Franchisee hereby accepts, from and after the closing of the Proposed Transaction, all the terms and conditions of the City's Charter, the Legal Documents, and any final non-appealable lawful orders or directives of any administrative agency relating to the Franchise Agreement or the System including, but not limited to, the Federal Communications Commission, and the Franchisee represents and warrants that it has examined the requirements of the Charter and the Legal Documents, as well as the applicable federal, state, or local laws or regulations, and agrees to abide by all the terms and conditions thereof. The Franchisee shall, among other things, assume all rate refund obligations and franchise fee liability, both actual and contingent, relating to the System.
8. Franchisee represents and warrants that the current level of local operations as required by the Legal Documents in the areas of customer service, maintenance, and PEG support shall be maintained or exceeded.
9. This Transfer Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. The parties agree that this Transfer Agreement will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile signature shall be treated in all respects as having the same effect as an original signature.
10. As an express condition of the effectiveness of the approvals contained herein, Time Warner Cable shall guarantee the financial and operational performance of the Franchisee pursuant to the Legal Documents pursuant to the written guaranty attached as Exhibit A (the "Time Warner Guaranty").
11. Subject to paragraph 17 hereinbelow, this Transfer Agreement shall be deemed effective upon execution by all parties (the "Effective Date") so long as this Transfer Agreement and the Time Warner Guaranty have been executed and returned to the City, and all payments required by this Transfer Agreement have been made pursuant to paragraph 15 hereinbelow. If these conditions have not been satisfied as set forth herein, the approving resolution shall become null and void, ah initio, and the Proposed Transaction shall be deemed disapproved for good cause as of December 5, 2005.
12. Franchisee represents that any letter of credit, insurance and bonding required by the Franchise Agreement and Ordinance have been obtained and that there will be no gaps in required coverages or liabilities. Franchisee will continue to maintain any letter of credit and 3 1:117104048 Signature Documents Fullerton Fullerton Transfer Agreement Final 060906 DOC bonds that it was required to maintain under the Franchise Agreement notwithstanding the Proposed Transaction.
13. Franchisee agrees to defend, indemnify and hold the City harmless against any loss, claim, damage, liability or expense (including, without limitation, reasonable attorney's fees) arising out of this Transfer Agreement and/or incurred as a result of any representation or warranty made by any party in the Application or in connection with the City's review of the Proposed Transaction which proves to be untrue or inaccurate in any material respect. In the vent the City receives any such notice of a loss, claim, damage, liability or expense, the Cit shall promptly notify the Franchisee which shall, at the sole discretion of the City, assume sole and direct responsibility for defending against any such loss, claim, damage, liability or expense.
14. Any consent given by the City in this Transfer Agreement and in any resolution approving the Proposed Transaction is not an affirmation that Adelphia-Orange or any redecessor in interest is in compliance with, or previously complied with the Franchis Agreement. Nothing herein shall limit or prevent the City from utilizing any material breaches or defaults committed prior to the Effective Date if discovered after the Effective Date in any renewal proceeding or other proceeding relating to the Franchise Agreement if such material breaches or defaults are not cured by Franchisee within a reasonable time after receipt of notice thereof from the City. Any consent is made without prejudice to, or waiver of, the City's right to obtain full remedy for any past non-compliance. Any consent given by the City in this Transfer Agreement and any resolution approving this Transfer Agreement is not a finding that, after the Proposed Transaction, the Franchisee will be financially, technically or legally qualified, and no inference will be drawn, positively or negatively, as a result of the absence of a finding on this issue. Any consent is therefore made without prejudice to, or waiver of, the City's right to fully investigate and consider the cable operator's financial, technical and legal qualifications and any other relevant considerations during any proceding, including by way of example and not limitation, any future transfer or renewal proceeding. Without limiting the foregoing, any approval of the Proposed Transaction is not a finding, representation, or commitment, expressed or implied, that any statutory renewal rights exist in relation to the Franchise Agreement; that the renewal application filed by any prior franchisee survives the Proposed Transaction; that the Franchise Agreement will be renewed or extended (and approval shall not create an obligation to renew or extend the Franchise Agreement); that the Franchisee is "financially, technically or legally" qualified to hold a renewed franchise; or that any other renewal issue that may arise with respect to Franchisee's past performance or future cable-related needs and interests will be resolved in a manner favorable to the Franchisee. The provisions of this paragraph shall not be modified or limited by the provisions of the Settlement Agreement.
15. м Within ten (10) business days of the latest to occur of: (i) final approval of the Proposed Transaction by the City Council; (i) approval of the Settlement Agreement by the Bankruptcy Court presiding over Adelphia's pending bankruptcy cases; or (iii) Adelphia- Orange's receipt of a fully executed copy of the Settlement Agreement, Adelphia-Orange, or its designee, shall pay to the City the amount of $118,000 (the "Payment"), but, in any event, no more than ninety (90) days from the date of final approval by the City Council, provided Adelphia-Orange has received a fully executed copy of this Transfer Agreement and the Settlement Agreement no later than ten (10) business days prior to the end of such ninety (90) day period. The Payment is paid in, and only in, complete satisfaction of all matters addressed in the Settlement Agreement. The City hereby delegates to the Office of the City Attorney all 4 I:1171000481Signature Documents Fullerton Fullerton Transfer Agreement Final 060906. DOC necessary authority to finalize the Settlement Agreement. In regard to said Payment, the parties expressly agree and covenant as follows:
A. The Payment is within the exclusions from the term "franchise fee" set forth in 47 U.S.C. § 542(g)(2); and
B. The Payment shall not be deemed to be in the nature of a tax, and shall be in addition to any and all taxes of general applicability or other fees or charges which the Franchisee shall be required to pay to the City or to any state or federal agency or authority; and C. The Franchisee shall not have or make any claim or any deduction or other credit of all or any part of the amount of the Payment to be made pursuant to this Transfer Agreement from or against any City or other governmental taxes of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers or income taxes) or other fees or charges which the Franchisee is required to pay to the City or other governmental agency; and D. The Franchisee shall not apply or seek to apply all or any part of the amount of the Payment to be made pursuant to this Transfer Agreement as a deduction or other credit from or against any City or other government taxes of general applicability (other than income taxes) or other fees or charges; and
E. The Franchisee shall not apply or seek to apply all or any part of the amount of any City or other government taxes or other fees or charges of general applicability including any such tax, fee, or assessment imposed on both utilities and cable operators or their services) as a deduction or other credit from or against the Payment to be made pursuant to this Transfer Agreement; and
F. In regard to the Payment made to the City pursuant to this Transfer Agreement, the Franchisee, or any affiliate party will not pass through, externalize, or otherwise attempt to add the costs of the Payment to any regulated rate.
16. The City and Franchisee shall enter into a Memorandum of Understanding ("MOU") in the form attached hereto as Exhibit B. In the event the Proposed Transaction does not close by December 31, 2006, then the MOU shall be void and of no force or effect, this Transfer Agreement shall also be void ab initio and of no force or effect, and consent to the Proposed Transactions shall be deemed disapproved for good cause as of December 5, 2005.
CITY OF FULLERTON, a municipal corporation
By _ Chi De
Is CITY MANAGER
5 IN17101048 Signature Documents Fullerton Fullerton Transfer Agreement Final 060906.DOC
ADELPHIA CABLEVISION OF ORANGE
COUNTY, LLC, a Delaware limited liability
company
By: Ft. Myers Cablevision, LLC,
a Delaware limited liability company,
Its Sole Member,
By: Ft. Myers Acquisition Limited Partnership,
a Delaware limited partnership
Its Sole Member,
By: Olympus Communications, L.P.,
a Delaware limited partnership,
Its General Partner,
By: ACC Operations, Inc.
a Delaware corporation
Its Managing General Partner
By Thomas I carlit
Vice President
Its:
ADELPHIA COMMUNICATIONS
CORPORATION
By: Thomas? Carloct
Vice President
Its:
TIME WARNER NY CABLE LLC
By:
Its:
ADELPHIA CABLEVISION OF ORANGE
COUNTY, LLC, a Delaware limited liability
company
y: Ft. Myers Cablevision, LLC
Delaware limited liability company
Its Sole Member,
By: Ft. Myers Acquisition Limited Partnership,
a Delaware limited partnership
Its Sole Member,
By: Olympus Communications, L.P.,
a Delaware limited partnership,
Its General Partner,
By: ACC Operations, Inc.
a Delaware corporation
Its Managing General Partner
By:_
Its:_
ADELPHIA COMMUNICATIONS
CORPORATION
By:_
Its:
IME WARNER NY CABLE LL(
Its: EVP, mvestments.
6 I:117104048 Signature Documents Fullerton Fullerton Transfer Agreement Final 060906.DOC TIME WARNER CABLE INC.
Its: OVP, Investments
APPROVED AS TO FORM:
I:117101048 Signature Ducumencs\Fullerton Fullerton Transfer Agreement Final 060906 DOC
EXHIBIT A
TIME WARNER CABLE INC. GUARANTY
GUARANTY, dated as of June 20, 2006, made by TIME WARNER CABLE INC., a Delaware corporation ("Time Warner Cable" or "Guarantor"), in favor of the City of Fullerton, California ("Beneficiary").
WHEREAS, in accordance with the relevant provisions of the City of Fullerton Municipal Code, the Beneficiary, pursuant to action by the City Council on June 20, 2006, has approved the assignment of the Franchise (the "Franchise") granted by Ordinance No. 2326 (the "Franchise Agreement") from Adelphia Cablevision of Orange County, LLC ("Adelphia- Orange") to Time Warner NY Cable LLC ("TWNY" or "Transferee"), an indirect subsidiary of Time Warner Cable.
WHEREAS, the City's approval was conditioned, among other things, on Guarantor unconditionally guaranteeing the performance of TWNY under the Franchise Agreement, the 1987 Transfer Agreement, the 2000 Transfer Agreement, the "Agreement Relating to the Consent of the City of Fullerton to the Transfer of the Franchise Agreement held by Adelphia Cablevision of Orange County, LLC to Time Warner NY Cable LLC" (the "2006 Transfer Agreement"), and the Memorandum of Understanding entered into pursuant to the 2006 Transfer Agreement (collectively, the "Legal Documents"); and
WHEREAS, upon closing of the transaction approved by the 2006 Transfer Agreement, Guarantor will have a substantial interest in the cable system and the Franchise, as well as in the management and control of TWNY and in the Legal Documents.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce Beneficiary to consent to the transfer of the
EXHIBIT A
Franchise Agreement issued by Beneficiary and currently held by Adelphia-Orange to TWNY, in accordance with the Federal Communications Commission Form 394 filed by TWNY, Guarantor agrees as follows:
Interpretive Provisions.
(a) The words "hereof," "herein" and "hereunder" and words of similar import, when used in this Guaranty, shall refer to this Guaranty as a whole and not to any particular provision of this Guaranty, and section and paragraph references are to this Guaranty unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
Guaranty.
(a) From and after the close of the transfer, Guarantor unconditionally and irrevocably guarantees to Beneficiary the timely and complete performance of all obligations of the Transferee under the Legal Documents (the "Guaranteed Obligations"). The Guaranty is an irrevocable, absolute, continuing guarantee of payment and performance, and not a guarantee of collection. If the Transferee fails to pay any of its monetary Guaranteed Obligations in full when due in accordance with the terms of the Legal Documents, Guarantor will promptly pay the same to Beneficiary or procure payment of same to Beneficiary. Anything herein to the contrary notwithstanding, Guarantor shall be entitled to assert as a defense hereunder any defense that is or would be available to the Transferee under the Legal Documents or otherwise. (b) This Guaranty shall remain in full force and effect for so long as the Transferee, or its successors or assigns, are providing services over the cable system in the City under the Franchise Agreement; provided, however, that this Guaranty shall terminate upon
EXHIBIT A
-2-
IN171040481Signature Documents Fullerton Fullerton Transfer Agreement Final 060906 DOC the earliest to occur of: (i) performance in full of all Guaranteed Obligations at a time when no additional Guaranteed Obligations remain outstanding or will accrue to the Transferee under the Franchise Agreement, or (i) any direct or indirect transfer of the Franchise from Transferee to, or direct or indirect acquisition (whether pursuant to a sale of assets or stock or other equity interests, merger or otherwise) of Transferee or any successor thereto by any other person or entity, a majority of whose equity and voting interests are not beneficially owned and controlled, directly or indirectly, by Guarantor, provided that any such direct or indirect transfer is subject to any terms and conditions as may be imposed by the City in connection with the transfer approval process required by the Legal Documents. Upon termination of this Guaranty in accordance with this Section 2(b), all contingent liability of Guarantor in respect hereof shall cease and Guarantor shall remain liable solely for Guaranteed Obligations accrued prior to the date of such termination.
Waiver. Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by Beneficiary upon this Guaranty or acceptance of this Guaranty. Guarantor waives diligence, presentment, protest and demand for payment to the Transferee or Guarantor with respect to the Guaranteed Obligations; provided, however, that Guarantor shall be furnished with a copy of any notice of or relating to default under the Franchise to which the Transferee is entitled or which is served upon the Transferee at the same time such notice is sent to or served upon the Transferee Representations and Warranties. Each of Guarantor and Beneficiary represents and warrants that: (i) the execution, delivery and performance by it of this Guaranty is within its corporate, limited liability company or other powers, have been duly authorized by all necessary corporate, limited liability company or other action, and do not contravene any law, order, decree or other governmental restriction binding on or affecting it, and (i) no
EXHIBIT A
authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by it of this Guaranty, except as may have been obtained or made, other than, in the case of clauses (i) and (ii), contraventions or lack of authorization, approval, notice, filing or other action that would not, individually or in the aggregate, impair or delay in any material respect such party's ability to perform its obligations hereunder.
5. Binding Effect. This Guaranty, when executed and delivered by both Beneficiary and Guarantor, will constitute a valid and legally binding obligation of Guarantor, enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency or other similar laws applicable to creditors' rights generally and by equitable principles (whether enforcement is sought in equity or at law).
Notices. All notices, requests, demands, approvals, consents and other communications hereunder shall be in writing and shall be deemed to have been duly given and made if served by personal delivery upon the party for whom it is intended or delivered by registered or certified mail, return receipt requested, or if sent by telecopier, provided that the telecopy is promptly confirmed by telephone confirmation thereof, to the party at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such party:
Io Guarantor and Transferee:
Time Warner Cable Inc.
290 Harbor Drive
Stamford, CT 06902-6732
Telephone: (203) 328-0631
Telecopy: (203) 328-4094
Attention: General Counsel
EXHIBIT A
-4-
1117101048 Signature Documents Fullenon Fullerton Transfer Agreement Final 060906.DOC To Beneficiary:
City of Fullerton
Telecopy:
Attention: City Clerk
With Copy to:
City Manager
City of Fullerton
Telecopy:
Integration. This Guaranty represents the agreement of Guarantor with respect to the subject matter hereof and there are no promises or representations by Guarantor or Beneficiary relative to the subject matter hereof other than those expressly set forth herein.
Amendments in Writing. None of the terms or provisions of this Guaranty may be waived, amended, supplemented or otherwise modified except by a written instrument executed by Guarantor and Beneficiary, provided that any right, power or privilege of Beneficiary arising under this Guaranty may be waived by Beneficiary in a letter or agreement executed by Beneficiary.
Section Headings. The section headings used in this Guaranty are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
10. No Assignment or Benefit to Third Parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon anyone other than Guarantor and Beneficiary and their respective permitted assigns, any rights or remedies under or by reason of this Guaranty.
EXHIBIT A
•
11. Expenses. All costs and expenses incurred in connection with this Guaranty and the transactions contemplated hereby shall be borne by the party incurring such costs and expenses.
12. Counterparts. This Guaranty may be executed by Guarantor and Beneficiary on separate counterparts (including by facsimile transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
13. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly executed and delivered by its duly authorized officer as of the day and year first above written.
TIME WARNER CABLE INC.
By:_
Name:
Title:
CITY OF FULLERTON, a municipal
corporation
By:_
Its:
EXHIBIT A