Comcast Corporation ("AT&T Comcast") pursuant to the terms of an Agreement and .... 5.1 The Franchisee agrees to con
SETTLEMENT AGREEMENT T H I S A GR E EM EN T is m ad e t his 6t h day of Aug us t, 200 2, by an d bet w een: 1.
City of Vallejo, C alif ornia, a m u nicipal c orporat ion ("C ity "); an d
2.
C om m unic ations Serv ic es , I nc., a Kans as C orporat ion
("F ranc his ee"). W I T N E SS ET H : W H ER E A S, F ranc his ee c urrently operat es a c able s y st em under t he term s and c ondit ions of a c able F ranc his e grant ed by t he C ity purs uant t o Ordinanc e 1017 N. C . (2d), C hapt er. 2. 70 of t he Vallejo City C ode (t he "C able C om m unic ations R egulat ory Ordinanc e") and und er t he t erm s of a franc his e agree m ent dat ed April 1, 1989, as t hes e doc um ent s m ay hav e been and/ or m ay in t he f ut ure be lawf ully am end ed f rom tim e t o tim e in ac c ordanc e w it hin t he param et ers s et f ort h in t he F ranc his e and applic able law (c ollect iv ely t he "Franc his e D oc um e nts "); and
W H ER EA S, AT &T C orp. ,("AT &T "), t he indirect c orporat e parent of F ranc his ee, and C om c as t C orpor ation, a Penns y lv ania C orporat ion ("C om c as t "), hav e ann ounc e d their int ent ion t o m erge and c reat e a new public c om pany t o be k now n as AT &T C om c as t C orporat ion ("AT &T C om c as t ") purs uant t o t he t erm s of an Agree m e nt and Plan of M erger dat ed D ec em b er 19, 2001 by and am o ng AT &T , AT &T Broadb and C orp., C om c ast and c ert ain of t heir res pectiv e affiliat es, and a Sep aration and D ist ribut ion Agreem e nt dat ed D ec em ber 19, 2001 by and bet w een AT &T and AT &T Broad ban d C orp. (t he "M erger"); and
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WHEREAS, in connection with the Merger, AT&T will spin-off as an independent entity AT&T Broadband Corp. ("Broadband"), which will hold the cable and broadband properties of AT&T, and Broadband and Comcast will merge with and become whollyowned subsidiaries of the new entity, AT&T Comcast, thereby resulting in a change of control of Franchisee from AT&T to AT&T Comcast (the "Change of Control"); and WHEREAS, after the Merger is cons ummated, Franchisee will be controlled by AT&T Comcast, but will continue to operate the cable system serving the Franchise area for the City and will continue to hold and be responsible for performance of the cable Franchise; and WHEREAS, the Franchise Documents provide that prior approval of the City is required for change of control of the Franchisee; and WHEREAS, on or about February 28, 2002, Franchisee and AT&T filed with the City an FCC Form 394 pursuant to the 1992 Cable Act and FCC regulations, and have requested that the City approve the application for a change of control of Franc hisee from AT&T to AT&T Comcast (the "Application"); and WHEREAS, certain disputes exist between the City and the Franchisee regarding the Franchisee's compliance with the terms of the Franchise; and WHEREAS, the City has concluded that the Change of Control would serve the public interest, provided that the Franchisee adequately address the City's claims concerning past noncompliance with the terms of the Franchise and accept all of the conditions set forth in a separate Change of Control Agreement among the parties;
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N O W , T H ER EF OR E, in c ons iderat ion of t he prom is es and undert ak ings herein, and ot her goo d and v aluable c ons iderat ion, t he rec eipt and adeq uac y of w hic h are hereby ac k now ledge d, T H E PAR T I E S D O H ER EB Y A GR E E AS F O LL O W S: SECTION 1. CHANGE OF CONTROL OF FRANCHISE 1.1.
I n c ons iderat ion f or t he prom is es and perf orm anc es of t he F ranc his ee, as
ex pres s ed els ew h ere in t his Settlem ent Agre em ent and t he C ha nge of C ont rol Agree m e nt, upon rec om m en dat ion of t he C it y M ana ger and approv al of t he Vallejo C it y C ounc il, c ont rol of t he F ranc his ee m ay be t rans f erred t o AT &T C o m c ast at t he clos ing of t he Propos ed T rans ac tion. SECTION 2. SETTLEMENT OF CLAIMS 2.1.
T he part ies agree t hat t his Sett lem ent Agree m ent s ettles t he f ollowing
claim s and dis put es regarding t he Franc his e as of t he eff ect iv e dat e of t his Sett lem ent Agre em e nt: 2.1.1. A ny pas t claim s regar ding t he F ranc his ee' s non-c o m plianc e w it h the PE G Ac c es s, Loc al Progra m m ing, and Loc al Origination Program m ing and Servic e Obligat ions under t he Franc his e D oc um e nts. 2.1.2. Any pas t claim s regarding t he F ranc his ee' s f ailure t o c om ply w it h the applic able C us t om er Serv ic e St andar ds. 2.1.3. Pas t c laim s regardin g under pay m ent of F ranc his e f ees and ut ilit y us er's t ax es f or t he period beginning J anuary 1, 1996 and ending D ec em b er 31, 1999, ex c ept t o t he ext ent res erv ed in Sec t ion 4 herein. 3
2.1.4. All ot her k now n pas t claim s of no n-c om plianc e w it h t he F ranc his e. 2.2.
T he F ranc his ee ex pres sly ac k now ledg es t hat t he City res erv es it s right s
w it h res pec t t o all ot her unk no w n pas t c laim s, or f ut ure claim s of non-c om plianc e wit h the F ranc his e agains t t he F ranc his ee.
SECTION 3. NO EFFECT ON FRANCHISE REQUIREMENTS 3.1.
Ex c ept as ex pres s ly prov ided t o t he c ont rary, not hing in t his Set tlem ent
Agre em ent dim inis hes or aff ec ts t he exist ing and c ont inuing c om m it m ent s , duties , and obligations , pres e nt, c ontinuin g, and f ut ure, of t he F ranc his ee em bo died in t he F ranc his e D oc um ent s, and all prov is ions of t he F ranc his e as herein am e nde d rem ain in full f orc e and eff ect and are enf orc eable in ac c ordanc e w it h t heir t erm s and c ons ist ent w it h applic able law . 3.2.
N ot hing in t his Sett lem ent Agree m ent dim inis hes or af f ects t he t erm s and
c ondit ions of t he C han ge of C ont rol Agree m ent or t he right s and obligations of t he parties und er t he C hang e of C ont rol Agre em e nt. 3.3.
Eac h party t o t his Sett lem ent Agreem ent, aft er c ons ult at ion wit h its legal
c ouns el as t o t he f ac ts s urroundin g t his Settlem ent Agre em ent, c onc ludes and agrees ex c ept as s pec ific ally prov ided herein/ no c ons iderat ion provided purs ua nt t o t his Sett lem ent Agreem ent t hat is us ed ac c ording t o t he t erm s and c ondit ions of t his Sett lem ent Agreem ent c an be c onst rued t o c ons tit ut e a F ranc his e f ee, nor are any pay m e nts m ade und er t he t erm s of t his Settlem ent Agre em e nt t hat are us ed ac c ording to t he t erm s and c onditions of t his Set tlem e nt Agree m e nt s ubject t o any lim it at ions on 4
F ranc his e f ees under applic able law or in t he F ranc his e D oc um ent s. Ev ery part y t o t his Sett lem ent Agreem ent here by w aiv es any c urrent or f ut ure claim t o t he c ont rary. 3.4.
T he F ranc his ee ac k now ledges t hat ex c ept as ex pres s ly provided t o t he
c ont rary in Sect ion 2 hereof, t he C ity res erv es all of it s right s regarding t he renew al of the Franc his e, and no pay m ent or ot her c ons iderat ion provided purs uant t o t his Sett lem ent Agreem ent s hall be deem ed t o af f ect t hos e right s. 3.5.
Ex c ept as ex pres sly prov ided herein, any breac h of or f ailure t o c om ply
w it h t his Set tlem e nt Agree m ent s hall c ons tit ut e a breac h of or nonc om plianc e w it h t he F ranc his e and s hall be s ubject t o all of t he rem edies av ailable under t he F ranc his e D oc um ents and t he C able Act, including but not limit ed t o t he renew al provisions of t he C able Ac t. 3.6
T he C ity ac k now ledges t hat F ranc his ee res erv es all of its right s regarding
the renew al of t he Franc his e, and no pay m ent or ot her c ons iderat ion provided purs uant to t his Sett lem ent Agree m ent s hall be dee m ed t o aff ect t hos e right s. SEC TION 4. PA ST DU E FRANC HISE FEES AND U TILITY USER TA XES 4.1.
On or bef ore t he eff ect iv e dat e of t his Sett lem ent Agreem ent, t he
F ranc his ee s hall pay t o t he City t he s um of $204, 616 f or past due Ut ility Us er T ax es of $177, 92 7 and penalties of $26, 689 f or t he period c om m e nc ing Oct ober 1, 1998 and ending D ec em ber 31, 1999 (t he "Au dit Period"). 4.2
I n addit ion t o t he am o unt s pec ified in t he Sec t ion 4. 1 herein, t he C it y
claim s t hat t he Franc his ee ow es t he C ity $312, 488 in pas t due F ranc his e f ees, utilit y us er t ax es , and penalt ies f or t he period c om m e nc ing J anu ary 1, 1996 an d ending Oc t ober 1, 199 8 ("Audit Period"). T he F ranc his ee dis put es t he C it y' s claim , and as s ert s
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that t he am ount s pec ified in Sec tion 4. 1 herein repres ents t he t ot al out st anding balanc e for past due F ranc his e f ees, utilit y us er t ax es, and penalties f or t he Audit Period plus t he period ending D ec em ber 31, 1999 w hic h claim is not barred by t he st at ue of lim it ations . W it hout w aiv ing t heir res pec t iv e right s, t he parties agre e as f ollow s : 4.2.1 W it hin 15 day s of t he ef f ect iv e dat e of t his Set tlem ent Agree m e nt, the Franc his ee s hall provide t o t he C it y a bond in t he am ou nt of $312, 488. T he bond w ill rem ain in plac e unt il t he part ies eit her reac h agree m ent purs uant t o 4. 2. 2 or 4. 2. 3 or t he dis put e is res olv ed by binding arbitration purs ua nt t o 4. 2. 4. 4.2.2 D uring t he 90-day period c om m enc ing on t he ef f ectiv e dat e of t his Agree m e nt, t he C it y and t he F ranc his ee agre e t o m e et and c onduc t good f ait h negotiations regarding t he dis put ed balanc e of unpaid ut ilit y us er t ax es and F ranc his e f ees f or t he Audit Period. 4.2.3 T he part ies agree t o partic ipat e in a m ediation proc ess during t he 90-day period if s uc h a proc es s is deem ed nec es s ary or appropriat e by t he C ity in it s s ole dis cretion. T he c ost of m ediation s hall be equally s hared by t he F ranc his ee and t he C ity, ex c ept t hat eac h part y s hall bear it s ow n att orney 's f ees. 4.2.4 Aft er t he 90-day period s pec if ied in Sec t ion 4. 2. 2 her ein, if t he F ranc his ee and t he Cit y hav e not reac hed agree m ent regarding t he dis put ed U U T and F ranc his e f ees, t he part ies agree t o participat e in binding arbit rat ion. T he c ost s of s uc h an arbit ration proc es s are
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to be equally shared by the Franchisee and the City, except that each party shall bear its own attorney's fees. 4.3
The City expressly reserves its right to conduct an audit of UTT and Franchise Fees for the period of time commencing January, 2000 and going forward. Nothing in this Settlement Agreement shall constitute a waiver or release by the City of any claims it may have arising from underpayment of UTT or Franchise Fees, if any, for the period commencing January, 2000 and going forward.
SECTION 5. CUSTOMER SERVICE 5.1
The Franchisee agrees to conduct, at no cost to the City, a customer
opinion survey of Vallejo cable subscribers on or before December 31, 2002, and will provide a report to the City outlining the findings of the survey. The Franchisee has provided the City an example of the survey instrument used by AT&T Broadband in other area communities, and will permit the City to make suggestions as to questions to be added, deleted, or reworded. The Franc hisee will make all reasonable efforts to accommodate the requests of the City regarding additions, deletions, or revisions to the customer opinion survey. A copy of the s urvey is attached hereto as Attachment A. 5.2
The Franchisee agrees to notify the City Manager (or his/her designee) by
email of any significant cable outages within 24 hours of such outages and will comply with all Franchise requirements regarding notification of the City regarding outages. A proposed written outage process is attached hereto as Attachment B.
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5.3
The Franchisee agrees to make service available to Team Chevrolet at
850 Redwood, pursuant to the terms and conditions of the franchise. 5.4
The Franchisee acknowledges that City alleges that City residents have
encountered problems in reaching the Franchisee for Customer Service purposes in the past. To address this allegation, the Franchisee and the City agree to the Customer Service Telephone Procedures attached hereto as Attachment C. 5.5
The Franchisee agrees to mark all of its vehicles and the vehicles of its
contractors and subcontractors in the manner required by Franchise Section 6.12 and Code Section 2.70.090(m) within 120 days of the effective date of this Settlement Agreement. SECTION 6. SYSTEM UPGRADE 6.1. The Franchisee agrees to upgrade the cable system serving the City of Vallejo ("Upgrade"). The Franchisee agrees to conduct the Upgrade in a diligent and concerted manner in order to avoid any unnecessary delay and complete the Upgrade as soon as commercially reasonable, and no later than December 31, 2006. The upgraded cable system will: 6.1.1. utilize a hy brid fiber-coax system; 6.1.2. use a minimum of 750 MHz active components; 6.1.3. us e one Gigahertz-passive components; 6.1.4. be two-way activated upon c ompletion of the upgrade; 6.1.5. be constructed at 1,200 homes per node with the capability of splitting the upstream down to 300 homes per node; and
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6.1.6. be completed in all areas of the City served by Franc hisee on the effective date of this Agreement, Mare Island (subject to the terms described below), and other areas of the City so that, upon completion of the Upgrade, Franchise's upgraded system shall pass all known and existing lawful residential dwelling units within the City, irrespective of residential density, such that Franchisee can provide services to such residential dwelling units without line extension charges, and all businesses located within the residential areas and passed by Franchisee's system. Franchisee will provide line extensions that may be required to reach lawful residential dwellings constructed or established after the completion of the Upgrade consistent with the terms and conditions of the Franchise; except that Franchisee agrees to extend its plant to new residential housing developments, in a manner that such developments can be served without line extension charges, where Franchisee is provided notice sufficient to allow Franchisee to install its plant in trenches while those trenches are open. 6.2.
The City and the Franchisee agree that Mare Island will require new construction. Special construction considerations will be necessary, as it was previously a military base. This new construction requires engineering design work that has not yet begun. As of the date of this Agreement, the Public Works Department of the City has been holding meeting for utilities and other entities wishing to construct infrastructure on
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M are I sland. T he Franc his ee agrees t o c ont inue t o part icipat e in t hes e or ot her s im ilar m eetings being held by t he C it y regarding c ons truct ion pract ic es, t renc hing, and ot her c ons truct ion relat ed m att ers on M are Island. F urt her, t he Franc his ee agrees t o inst all c able plant in t renc hes w hen t hey are open and av ailable, and f ollow Franc his ee's c able s yst em rout e, on M are I s land. 6.3.
T he F ranc his ee agrees t o c om plet e its init ial analy sis and propos e a c onstruct ion sc hedule f or t he U pgrade of t he c able sy st em s erving t he C it y of Vallejo by D ec em ber 31, 2003.
6.4.
T he F ranc his ee agrees t o m eet w it h t he C ity wit hin 180 day s t o ex plore m ut ually ac c ept able t erm s and c ondit ions f or pre-inst alling f iber as part of the s ubs c riber net w ork upgrade t hat c ould be us ed by t he C it y f or f ut ure I-N et purpos es. Suc h dis c us sions c ould include, but w ould not nec ess arily be lim it ed t o: pot ent ial l-N et s it es; av ailabilit y of s pac e on poles and in c onduit s; est im at e' s of t he inc rem ent al c ost t o engineer, f urnis h and inst all the addit ional f iber; m ea ns t o c om p ens at e t he F ranc his ee f or it s c ost s; right s t o us e t he f iber; and w hen s uc h fiber will be m ade av ailable t o t he C it y.
SECTION 7. PEG ACCESS. 7.1.
T he part ies agree t o am e nd t he Franc his e t o add t he f ollow ing def initions: 7.1.1. T he t erm s "loc al origination" an d "loc al program m ing " m eans program m ing of loc al int erest produc ed by Franc his ee on a c hann el of it s s elect ion s ubject t o its edit orial c ont rol.
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7.1.2. T he t erm "P E G progra m m in g" s hall m ea n progra m m in g t hat is prov ided ov er a Public Ac c es s, Educ at ion, or Gov ern m e nt ("PE G") c hannel required and dedic at ed f or PE G us e by t he C it y purs uant to 47 U SC ยง 531, and ov er w hic h F ranc his ee is prohibit ed f rom ex ercis ing any edit orial c ontrol. 7.2.
T he F ranc his ee agrees t o t ransf er t o t he C it y (or t he entit y des ignat ed by t he C it y ): 7.2.1. m an age m e nt res pons ibilit y f or t hos e PE G progra m m ing f unc tions , as defined in 7. 1. 2, c urrent ly perf orm ed by t he F ranc his ee; and 7.2.2. t hos e P E G progra m m ing f unc t ions, as define d in 7. 1. 2, t he F ranc his ee is obligat ed t o prov ide purs uant t o t he F ranc his e D oc um e nts.
7.3.
T he F ranc his ee s hall t ransf er m an age m e nt of t he f unct ions des c ribed in Sec tion 7. 1 herein in a c oordinat ed m an ner des igned t o ex pedit e t he transf er w it hout disrupt ing c ont inuit y of s erv ic es prov ided bot h t o Vallejo and s urrounding areas . I t is ant ic ipat ed t hat s uc h t rans ition w ill oc c ur w it hin no m ore t han nine m ont hs of t he dat e of t he eff ect iv e dat e of t his Sett lem ent Agree m ent ("T rans it ion Period").
7.4.
D uring t he T rans ition Period, t he Franc his ee s hall c ont inue t o prov ide PE G program m ing f unctions it c urrently provides .
7.5. Within 90 days after the effective date of this Agreement, the City shall prepare and provide to Franchisee a PEG operating plan which includes the following:
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7.5.1. a lis t of int ende d PE G us ers ; 7.5.2. t he planned ty pe and lev el of program m ing f or eac h us er; 7.5.3. a des c ription of addit ional c apit al equip m e nt, f ac ilit ies, and est im at ed c osts required t o s upport t he int ended us es (t his s hall inc lude a s urv ey of ex ist ing publicly -ow ned equipm e nt t hat m ight be av ailable f or t he int ended purpos es ), and 7.5.4. us er c om m it m ent s t o c ov er op erat ing ex pens es and/ or s upport f acilities f or at leas t a t hree (3) y ear period. 7.6.
C om m enc ing 30 days aft er t he dat e of t his Sett lem ent Agree m ent and c ont inuing t hrough t he rem aining t erm of t his F ranc his e, w hic h ex pires on April 1, 2009, t he F ranc his ee s hall prov ide t o t he C ity on a quart erly basis the am ount of $0. 10 per s ubs c riber per m ont h f or t he C ity' s us e f or any lawf ul PE G purpos e. T he Franc his ee m ay pas s -t hrough and it em iz e t he $0. 10 per m o nt h on t he s ubs c ribers' bills.
7.7.
D uring t he 180-day period c om m enc ing on t he eff ect iv e dat e of t his Agreem ent, t he F ranc his ee and t he City agree t o m eet and c onduct good fait h neg otiations regarding PE G ac c es s s upport w hic h F ranc his ee m ay provide in addit ion t o t he s upport provided in Sect ion 7 of t his Sett lem ent Agree m ent.
7.8.
W it hin 90 day s of t he eff ect iv e dat e of t his Sett lem ent Agree m ent, t he F ranc his ee s hall prov ide t o t he City a pay m ent o $20 0, 000 (w hic h s um Franc his ee s hall rec ov er wit h int erest f rom s ubs c ribers in t he f orm of a m ont hly pass -t hrough), t o be us ed by t he C ity t o purc has e PEG Ac c es s
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equipm ent c ons ist ent w it h t he plan s ubm it t ed by t he City purs ua nt t o Sec tion 7. 5 of t his Agree m ent . 7.9.
W it hin s ix m ont hs of t he eff ec tiv e dat e of t his Sett lem ent Agree m ent , t he F ranc his e s hall, at no c ost t o t he C it y: 7.9.1. c onst ruct and m aint ain a f iv e-c han nel upst ream fiber f eed f rom J es s e Bet hel High Sc hool (t he des ignat ed loc ation of t he PEG Ac c es s C ent er) t o t he c able sy st em hea den d; 7.9.2. prov ide a t rans c eiv er at J es s e Bet hel H igh Sc hool nec es s ary t o ins ert t he signal ont o t he fiber link; and 7.9.3. prov ide t he equipm e nt need ed at t he heade nd t o c ablec ast s uc h PE G program m ing as t he City (or its des ignat ed PEG ac c ess m anage m ent entit y ) m ay input t o t hat link ont o t he C it y's PE G c hannels; 7.9.4. prov ide a one-w ay fiber f eed f rom C it y H all t o J es s e Bet hel H igh Sc hool t o replac e t he c urrent C it y H all t o c able sy st em headen d link.
7.10. T he C ity agrees t o s upport and f ac ilit at e any nec es s ary perm itt ing proc es s w hic h m ay be nec es s ary f or Franc his ee's c onst ruct ion and inst allation of t he f iber link des c ribed in S ect ion 7. 9. 1. and 7. 9. 4. her ein. 7.11. T he F ranc his ee s hall c ooperat e w it h t he City t o c orrect all t ec hnic al problem s ass oc iat ed w it h t he "upst ream " f eed f rom Cit y H all t o t he head en d.
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7.12.
T he F ranc his ee w ill, at no c ost t o t he City, m aint ain all c able plant and plant equipm ent, hea den d equipm ent, and t he t rans c eiv er or ot her equipm ent inst alled by F ranc his ee at t he J es s e Bet hel H igh Sc hool t o m aint ain c ont inuity on t he Cit y H all link and t he new link t o J es s e Bet hel H igh Sc hool in a m anner w hic h m eets or ex c eed t he st andards s et f ort h in 47 C . F. R. 76 s ub part K ("F C C T ec hnic al St and ards "), as t hos e st andar ds m ay be in eff ect at all tim es .
7.13. W it hin s ix m ont hs of a requ est by t he C ity , t he Franc his ee s hall provide a s ec ond dow ns t ream PE G c hann el f or t he C ity 's us e. T he C it y and t he F ranc his ee agree t o c ooper at e in draft ing a c om m o n res pons e t o s ubs c ribers c onc erning bot h t he elim ination of t he exist ing c han nel and t o announc e t he addition of s uc h a new PEG ac c es s c hannel. SECTIONS. LIQUIDATED DAMAGES 8.1
Bec aus e t he F ranc his ee' s f ailure t o c om ply w it h t he prov isions of t his Sett lem ent Agreem ent w ill res ult in injury t o t he Cit y, and bec a us e it will be diff ic ult t o est im at e t he ex t ent of s uc h injury, t he C it y and t he F ranc his ee agree t o t he f ollow ing liquidat ed da m ag es f or t he f ollow ing v iolations , w hic h repres ent bot h parties' bes t est im at e of t he dam a ges t o t he City res ult ing f rom t he s pecif ied injury:
8.1.1. For failure to complete the system upgrade in accordance with Section 6 of this Settlement Agreement: $0.40 forty
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cents ($0.40)/day for each affected subscriber for each day the violation continues. 8.1.2. For failure to comply with the requirements of sections 7.6, 7.8, 7.9, or 7.13 of this Settlement Agreement: Three hundred seventy five dollars $375 for each day the violation continues. SECTION 9. RESERVATION OF RIGHTS 9.1
Except as expressly provided in Section 2 of this Agreement, neither this
Settlement Agreement nor the City's consent to the Change of Control to AT&T Comcast shall not constitute a waiver or release by the City or Franchisee of any right the City or Franchisee may have with respect to Franchisee's compliance (or noncompliance) with the terms, conditions, requirements and obligations set forth in the Franchise's compliance (or non-compliance) with any terms, conditions, requirements and obligations set forth in the Franchise regarding the payment of-Franchisee fees on cable modem service. The City expressly reserves all rights it may have under applicable law to enforce the provisions of the Franchise Documents. Franchisee expressly reserves any and all claims and defenses it may have to any such claim. SECTION 10. 10.1
DISPUTES REGARDING THIS SETTLEMENT AGREEMENT The Franchisee, nor any of its affiliates, nor the City, will take any action to
challenge any provision of this Settlement Agreement as being contrary to law as of the effective date of the Settlement Agreement, nor will they participate with any other person or entity in any such challenge.
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10.2. If and when any provision of this Settlement Agreement is found to be unenforceable in a final judicial or administrative proceeding, the parties shall enter into good-faith negotiations with the intent of reaching an agreement that would place the City and cable system users and subscribers substantially in the same position as if this Settlement Agreement were fully enforceable.
SECTION 11.
MISCELLANEOUS PROVISIONS
11.1. This Settlement Agreement constitutes the entire agreement of the parties with respect to the settlement of the claims addressed herein. No statements, promises or inducements inconsistent with this Settlement Agreement made by any party shall be valid or binding, unless in writing and executed by all parties. This Settlement Agreement may only be modified by written amendments hereto signed by all parties. 11.2. If any part, section, s ubsection, or other portion of this Settlement Agreement or any application thereof to any person or circumstanc e is declared v oid, unconstitutional or inv alid for any reason, such part, section, s ubsection or other portion, or the prescribed application thereof, shall be s everable, and the remaining provisions of this Settlement Agreement, and applications thereof not having been declared void, unconstitutional or invalid, shall remain in full force and effect. 11.3. Each signatory to this Settlement Agreement represents that he or she has the authority to enter into this Settlement Agreement. 11.4. This Settlement Agreement is freely and voluntarily given by all of the parties, without any duress or coercion, and after each party has consulted with its
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c ouns el. Eac h part y heret o has c aref ully and c om plet ely read all of t he t erm s and prov is ions of t his Sett lem ent Agreem ent. 11.5. T his Settlem e nt Agre em e nt s hall be binding upo n, and s hall inure t o t he benef it of, t he parties heret o and t heir s uc c es s ors in int erest, as s igns, pers onal repres ent at iv es and heirs. 11.6. T his Set tlem e nt Agree m e nt m ay be ex ec ut ed in s ev eral c ount erpart s, eac h of w hic h w hen s o ex ec ut ed s hall be dee m ed t o be an original c opy , and all of w hic h t oget her s hall c onst it ut e one agree m ent binding on all part ies heret o, not w it hst anding t hat all parties s hall not hav e signed t he s am e c ount erpart. 11.7. T he hea dings in t his Sett lem ent Agre em ent are f or c onv enienc e of ref erenc e only and are not a m at erial part of t his Settlem ent Agre em e nt. T hey s hall not be us ed in det erm ining t he int ent of t he parties. 11.8. T his Settlem e nt Agre em e nt s hall be gov ern ed by and c ons trued, and t he legal relat ions bet w ee n t he part ies det erm ined, in ac c ordanc e w it h t he law s of t he St at e of C alif ornia. 11.9 T he F ranc his ee c ons ent s t o v enue and juris dic tion in t he U . S. D ist rict C ourt f or t he East ern Dist rict of C alif ornia and t he Solano C ount y Sup erior C ourt.
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IN WI T N E SS W H ER E OF , t his Sett lem ent Agreem ent is ex ec ut ed by t he part ies as f ollow s :
AGR EE D T O T H I S
D AY OF ____ ____ ____ ___ _ ______ _
C it y of Vallejo, C alif ornia By: __________________ C ity M anager
AT T EST :
Cit y Clerk COMMUNICATIONS SERVICES, INC.
By:_______________________________
[title]
AP PR O VE D AS T O F OR M :
_____ ____ ___ ____ ____ ___ C ity Att orney
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