HomeMy WebLinkAbout2011-111 Release Agrmt - Falcon (Charter) Cable
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SETTLEMENT AND RELEASE AGREEMENT
this
This Settlement and Release Agreement (the "Settlement Agreement") is made
? day of ~, 2011, by and among the City of Ashland, Oregon (the
and Falcon C~ems Company II, L.P" locally known as Charter
"City")
Communications ("Charter") (collectively referred to herein as "the Parties").
RECITALS
WHEREAS, Charter operates a cable system in the City of Ashland, Oregon and
pays franchise fees pursuant to a franchise agreement between the parties (the
"Franchise");
WHEREAS, the City conducted an audit of the franchise fee payments made by
Charter for the period from January I, 2005 to December 31, 2010 (the "Audit Period")
and concluded that Charter underpaid franchise fees for the Audit Period,
WHEREAS, Charter agrees to submit payment to the City in the amount of three
hundred twenty seven dollars ($327,00), to forever settle past claims on franchise fees
due the City for the Audit Period;
WHEREAS, the City and Charter now desire to conclude, settle, release and
discharge once and forever, all rights, claims, causes of actions, liabilities, disputes and
demands relating to the City's past claims on franchise fees due the City;
WHEREAS; the. Parties further expressly agree that terms related to this
Settlement shall not be used by either Party as precedent on a going-forward basis in
connection with .any future dispute between the Parties related to franchise fees;
NOW THEREFORE, in consideration of the foregoing, and in consideration of
the mutual promises and obligations hereinafter set forth, and for good and valuable
mutual consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties to this Settlement Agreement hereto agree as follows:
AGREEMENT
I. SETTLEMENT AMOUNT
The City and Charter have agreed that Charter shall submit payment to the City in
the amount of three hundred twenty seven dollars ($327.00) in full settlement of past
claims on franchise fees for the Audit Period. Charter agrees to pay this amount to the
City within forty-five (45) days after receipt of the executed Settlement Agreement from
the City. It is expressly understood and agreed that the Settlement Amount represents
full and complete satisfaction and compromise of any and all claims, actions, causes of
action, controversies, demands, damages, debts, agreements, obligations, liabilities,
interest, liens, expenses, costs, attorney's fees and demands of any kind or nature, known
or unknown, arising out of or in any way related to the City's past claims on franchise
fees due the City during the Audit Period. It is understood and agreed by the City and
Charter that nothing herein shall be deemed to be an admission of liability by Charter
with respect to the matter of this Settlement Agreement.. Furthermore, the failure of
Charter to dispute some or all of the findings of this franchise fee audit shall not be taken
or held to be a waiver of Charter's right to dispute any or all of the findings offranchise
fee audits subsequent to the Audit Period. Additionally, notwithstanding any other
provision of this Settlement Agreemerit, the Parties hereby acknowledge and agree that
any franchise fee payment made pursuant to the Franchise may be recovered by Charter
from subscribers in accordance with applicable law and that such furids may be included
as line items on subscriber bills consistent with FCC regulations at Charter's discretion.
2. RELEASE OF CLAIMS
For the consideration set forth in this Settlement Agreement, the City does hereby
release and forever discharge Charter, and its parents, subsidiaries, related affiliates and
their respective officers, directors, shareholders, owners, partners, employees, agents,
contractors, representatives, predecessors, successors, assigns, insurers and attorneys, and
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each of them, from any and all claims, demands, actions, causes of action, liabilities,
obligations, losses, accounts, debts, damages, judgments, costs, interest, expenses,
attorney's fees and demands of any kind or nature, known or unknown, arising out of or
in any way related to the City's past claims on franchise fees due the City during the
Audit Period. Furthermore, the City expressly agrees that this settlement, and/or the
;
events leading up to it, including the dispute with respect to the payment of franchise fees
during the Audit Period; may not be used in any way in any subsequent judicial or
administrative proceeding against Charter other than to enforce the terms of this
Settlement Agreement.
3. VOLUNTARY AGREEMENT
This Settlement Agreement is freely and voluntarily given by each party, without
any duress or coercion, and after each party has consulted with its counsel. Each party
has carefully and completely read all of the terms .and provisions of this Settlement
Agreement.
4. AUTHORITY AND BINDING EFFECT
City and Charter represent and warrant to the other that each has the legal right,
power and authority to enter into this Settlement Agreement and to perform its
obligations hereunder. This Settlement Agreement will inure to the benefit of and be
binding upon the parties and their respective successors and assigns. The parties for
themselves and their respective successors and assigns agree to join in or execute any
instruments and to do any other act or thing necessary or proper to carry into effect this or
any part of this Settlement Agreement.
5. ENTIRE AGREEMENT
This Settlement Agreement sets forth the entire agreement between the City and
Charter relating to the subject matter of this Settlement Agreement.
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6. GOVERNING LAW
This Settlement Agreement, and any controversies arising hereunder, shall be
interpreted and adjudicated in accordance with applicable federalla~ and the laws of the
State of Oregon, whose courts shall have exclusive jurisdiction thereof.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement as
their free and voluntary acts and deeds, effective as of the date first above written,
City of Ashland, Oregon
Falcon Commnnity Cable II, L.P, d/b/a
Charter Communications
By: Charter Communications VII, LLC its
General Manager
By: Charter Communications Inc., its Manager
By: dK~.~BY:
Printed Name:.t>.L. 7i Printed Name:
Sworn before me in the City of M~d, State of
~
My Commission Ex ires: '1.'1iR.1.Jo
. ..'OfAcIALSEAl
BARBARA. M,.CHRI8TENSEN
NOTARY PUBUC-oflEOON
COMMISSION NO. 442684
MY COMMISSION EXPIRES SEPT;. \6; 2013
tJ/C..... , this ~ day of
,2011.
.tk~
Notary Public
Sworn before me in the City of
, State of
, this _ day of
,2011.
My Commission Expires:
Notary Public
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Date