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HomeMy WebLinkAboutCharter Cable Settlement Agreement and Release SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ("Agreement") is made by and among the City of Gilroy, California ("City"), on the one hand and Falcon Cable Systems Company II, L.P. and any other related or affiliated entity by whatever name (collectively "Charter"), on the other hand. WHEREAS, the City Council of the City granted a franchise to Charter pursuant to a Franchise Agreement dated December 6, 1999 ("Franchise Agreement") and Chapter 24 of the City Code, as amended by Ordinance 97-1 ("Ordinance"). The Franchise Agreement and Ordinance are referred to collectively herein as the "Franchise", and; WHEREAS, Charter and certain of its affiliates filed a Joint Plan of Reorganization with the United States Bankruptcy Court for the Southern District of New York (Case No. 09- 11435) pursuant to which Charter has reorganized and emerged from bankruptcy ("Reorganization") on November 30,2009 and; WHEREAS, Charter filed a Form 394 application with the City on April 20, 2009 seeking the City's consent as may be required by the Franchise to the Reorganization; and WHEREAS, the Cities of Gilroy, Hollister and San Juan Bautista (collectively "the Cities") have conducted a joint franchise compliance review, and; WHEREAS, various disputes have arisen between Charter and the Cities involving certain obligations Charter was required to perform under the Franchise, and; WHEREAS, the City submitted a proof of claim in Charter's Chapter 11 cases (claim number 1714) (the "Claim"), and; WHEREAS, the City filed the Objection to Proposed Cure Amounts in Connection with Assumption of Franchise Agreements [Docket No. 924] on November 19, 2009 in Charter's Chapter 11 cases (the "Objection"); WHEREAS, the City and Charter now desire to reach a comprehensive settlement with respect to the Franchise Agreement, including but not limited to specific noncompliance issues under the Franchise Agreement, which have been identified by the Cities to Charter, and the Objection and Claim. The City and Charter now enter into this Agreement according to the terms set forth below. AGREEMENT NOW, THEREFORE, in considerations of the recitals, covenants and other terms set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1 1. Charter shall undertake a complete engineering audit of the Institutional Network (hereinafter "I-Net") and perform necessary repairs, maintenance, and certification to assure that the I-Net and public, education and government ("PEG") locations set forth on Exhibit A are properly installed and functioning. At the conclusion of this process, Charter shall provide proof to the Cities that all of the identified functionality is in place and that the fiber is performing. Charter shall perform a test of the I-Net and PEG locations in accordance with Exhibit B attached hereto. The Cities will be permitted to participate in these I-Net tests with the assistance of an independent engineering firm. The completion date for the obligations set forth in this paragraph shall be four (4) months from the Effective Date of this Agreement. 2. Charter shall, in lieu of the I-Net provisions set forth in the Cities' respective Franchise Agreements and Ordinances, provide and maintain one pair of dark fibers to each of the approximately 60 locations currently provided with I-Net service pursuant to the Franchise Agreements. Exhibit A identifies the locations that currently receive I-Net service. Charter shall provide and maintain the fibers to each of the locations on the terms provided in Exhibit B and Attachment 1. If any of the I-Net locations are controlled by governmental or educational entities other than the Cities, those entities must also enter into the Standard Terms of Service set forth on Attachment 1 as a condition of obtaining use of the I-Net capacity provided pursuant to this Agreement. The Cities are responsible for the equipment and maintenance of the connections from the point of demarcation to their facilities. The local governments, schools, and Community Media Access Partnership, the Cities' designated community media and PEG access service provider (hereinafter "CMAP"), shall have the right of continued use of these fibers for local governmental, school, and CMAP purposes until December 31, 2014. There will be no charge to the local governments, schools, and CMAP for the use and maintenance of these fibers until December 31, 2014. In order to facilitate an orderly transition from the six (6) fibers currently in use by the Cities, schools, and CMAP to one pair of dark fibers, Charter and the Cities agree to a one-year transition window that will commence on the Effective Date of this Agreement. 3. Within thirty (30) days of the Effective Date of this Agreement, Charter shall, in lieu of any obligation to provide I-NET and PEG equipment in the respective Franchise Agreements or Ordinances of the Cities, pay the Cities of Gilroy, Hollister and San Juan Bautista collectively the amount of $335,000 to be used by such Cities toward their equipment expenses to implement and utilize the dark fiber network described above and for any other PEG and I-Net purposes, including costs associated with this Agreement. The collective payment of $335,000 shall be provided to CMAP. CMAP has been designated by the Cities to administer this fund. 4. Charter will retain ownership of its network capacity and will allow the City access for City non-revenue producing and non-competitive purposes only. The City may use the I-Net capacity for intra-governmental, education and PEG purposes and for inter- governmental, education and PEG purposes among the Cities. The City may not lease or sell the capacity, engage or allow any party authorized by the City to engage in any 2 activities that would result in business competition between the City and Charter, or engage in any activity that may result in loss of business opportunity for Charter. 5. Charter will continue to provide existing cable drops and monthly cable service to each public school building, local government buildings, CMAP, and public agencies listed on Exhibit C at no charge until December 31,2014. 6. Charter and the City acknowledge that under Sections 11.1.A and 11.1.B. of the Franchise Agreement, Charter provides the City with four (4) public, education and government access ("PEG") channels. Charter shall continue to provide four (4) PEG access channels after the expiration of the Franchise Agreement. 7. Charter shall continue to provide PEG funding to CMAP, or the Cities' designated PEG access service provider, after expiration of the Franchise at the level set forth in Section 11.1 E (2) of the Franchise Agreement. 8. After the expiration of the Franchise Agreements, Charter shall continue to provide, at no cost to the Cities or CMAP, a dedicated fiber link between CMAP and the Charter headend, which would permit the PEG access center to: (a) send signals to the headend on multiple channels simultaneously; (b) receive signals from other locations on multiple channels simultaneously; (c) remotely route signals originated atthe PEG access center or at other locations onto any PEG access or institutional use channels on the cable system; and (d) otherwise control the signals to allow for smooth breaks, transitions, and insertion of station ID's and other material. After December 31, 2014, Charter shall continue to provide at no charge to CMAP or the Cities the connectivity and functionality necessary for the PEG access signals to be transmitted from the following primary PEG origination points in the Cities to CMAP: Gilroy City Hall, Hollister City Hall, San Juan Bautista City Hall, San Benito County Office of Education, Gavilan Community College and Christopher High School. 9. In settlement of all issues related to the City's franchise fee and PEG fee audit, Charter shall pay to the City $10,328 for underpayment of franchise fees and $5,602 for underpayment of PEG fees. Payment will be made no later than thirty (30) days after the Effective Date of this Agreement. 10. This document must be separately approved by the Cities of Gilroy, Hollister, and San Juan Bautista. In order provide clarity with regard to the Effective Date of this document the parties agree that the Effective Date shall be the latest date upon which this document is approved by any of the aforementioned Cities. 11. On the Effective Date of this Agreement, the City's Objection and Claim shall be deemed automatically withdrawn with prejudice without further action by the parties to this Agreement, provided, however, that the City shall file a notice of withdrawal for the Objection and Claim within five (5) days from the Effective Date of this Agreement. 3 12. The City and Charter acknowledge and agree that this Agreement is the result of compromise and is not an admission of liability or responsibility concerning any conduct of the City and Charter. 13. Except for Charters' obligation to perform under this Agreement, the City and its elected officials release and forever discharge Charter, its officers, directors, shareholders, employees, representatives, predecessors and successors, from any and all claims of any kind or type, whether known or unknown, whether asserted or unasserted, or that could have been asserted, that arise out of or relate to any actions, inactions, conduct, omissions, or other aspects of the City's and Charter's relationship up to and including the date of this Agreement. Except for the City's obligation to perform under this Agreement, Charter releases and forever discharges the City, its officers, employees, representatives, predecessors and successors, from any and all claims of any kind or type, whether known or unknown, whether asserted or unasserted, or that could have been asserted, that arise out of or relate to any actions, inactions, conduct, omissions, or other aspects of the City's and Charter's relationship up to and including the date of this Agreement. This release does not cover conduct that occurs after the date of this Agreement, including the City's and Charter's relationship under and compliance with the Digital Infrastructure and Video Competition Act. 14. This Agreement is governed by and subject to the laws of the State of California and applicable federal law. The City and Charter each acknowledge and agree that the releases contained in this Agreement are special releases and that 91542 of the Civil Code of the State of California is not applicable. If and to the extent it should be determined that the releases contained in this Agreement are not special releases, contrary to the City's or Charter's acknowledged intention and agreement, each party specifically waives the benefit of the provisions of 91542 of the Civil Code of the State of California, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR SETTLEMENT WITH THE DEBTOR. 15. This Agreement may be executed in counterparts, and the counterparts, taken together, shall constitute the original for all purposes. 16. The parties agree to execute any and all documents necessary to effectuate the terms, conditions, purposes and aims of this Agreement. 4 IN WITNESS WHEREOF, the parties have executed this Settlement Agreement and Release as follows, as of the dates indicated below: D~~\'1iq ,2010 -AttesrAe ~/ ...7'.;-9 (P +;'~~'.v~ (' ~ (~j~ a .~~ Cityeterk A\+on-\V.j I LiNJA.~lloY\ Dated: -S\AJ~ I q ,2010 ~~~;~:~ys~ f1<1611l1'd Its: I. Falcon Cable Systems Company II, L.P. By: Charter Communications VII, LLC, its General Partner By: Charter Communications, Inc., its Manager By: Z- &- - iP- rQ Its: 5 e EXHIBIT A Institutional Network Locations City of Gilroy Gilroy City Hall Old Gilroy City Hall City Hall Annex City Corp Yard TEEC Building *Gilroy Police Dept Chestnut Fire Station *Sunrise Fire Station Gilroy Senior Center Gilroy Youth Center Christmas Hill Park Gilroy Historical Museum Wheeler Community Center WilleyCultural Center Gilroy Unified School District Office Rod Kelley Elementary School Las Animas Elementary School EI Roble Elementary School *Brownell Middle School South Valley Middle School Eliot Elementary School Gilroy High School Glen View Elementary School Luigi Aprea Elementary School CMAP/Gavilan Community College Antonio Del Buono Elementary School *Ascencion Solorsano Middle School Las Animas Fire Station *Christopher High School **Gilroy Public Library 7351 Rosanna St. 7400 Monterey St. 7370 Rosanna St. 613 Old Gilroy St. 7051 Miller Ave 7301 Hanna St. 7070 Chestnut St. 880 Sunrise Dr. 7371 Hanna St. 7400 Railroad St. 7050 Miller Ave 795 Fifth St. 202 W. 6th St. 140 5th St. 7810 Arroyo Cir 8755 Kern Ave 8450 Wren Ave 930 3rd St. 7800 Carmel St. 985 IOOF Ave 475 Old Gilroy St. 750 W Tenth St. 600 W 8th St. 9225 Calle del Rey 5055 Santa Teresa Blvd 9300 Wren Ave 7121 Grenache Dr. 8383 Wren St. 850 Day Road 7387 Rosanna St. * Installation/Buildout of these locations paid for by City or School ** Location of old library building with drop. Library was demolished for construction of new Public Library by 2012 Exhibit A - Page 1 EXHIBIT B Desiqn Pursuant to Section 10.3 of the Franchise, Charter is obligated to provide an Institutional Network consisting of, among other obligations, six (6) fibers. Charter's obligation pursuant to this Settlement Agreement shall be modified to obligate Charter to provide one pair of Dark Fibers (one dark fiber up, one dark fiber down) to the Demarcation Point for each Dark Fiber Location in the City listed on Exhibit A ("Fiber Network"). The termination point for the fiber shall be the location of the termination point as installed on the Effective Date of this Agreement. Generally speaking, it is the entry point for telephone/utilities. Alternatively, the termination point will be the most convenient, cost effective and logical location determined by mutual agreement of the City and Charter - preferably a patch panel location on premise. "Dark Fiber" means fiber within an existing single mode fiber optic cable that has not been activated through the optical transmission equipment, reception equipment, laser, switches and other electronic and optical equipment to render it capable of carrying optical (light) signals or communications services. Charter is not responsible or obligated to provide any optical transmission equipment, reception equipment, laser, switches or other electronic and optical equipment to render it capable of carrying optical (light) signals or communications services. The City will be responsible for purchasing, installing and maintaining all internal networking and all equipment required both in the City's facilities and in Charter's head-end to activate and operate the Dark Fiber Network. Testinq Charter will perform a test of each of the fiber pairs associated with this Agreement to document the individual path transmission loss as a function of optical spectrum. During the term of this Agreement, Charter shall maintain the performance characteristics recorded for the fiber paths within mutually agreed acceptable tolerances (nominal 1.5 db) of the tests performed pursuant to this Agreement. Charter will perform tests for optical continuity and document the results for each location, specifically: . Bi-directional OTDR shots for each fiber segment . Dual wavelength optical power loss measurements for each segment (1310 and 1550 nm) . All test results will be packaged either in binder or CD format. Exhibit B - Page 1 Completion The testing shall be completed no later than four (4) months after the Effective Date of this Agreement, subject to forces beyond Charter's control, including utility delays, railroad crossings, and acts of God. Transition During the one year period following the Effective Date of this Agreement, Charter and the Cities shall transition from the current six (6) fiber strands I-Net to a (2) two fiber strands I-Net at each user site. The parties agree to work closely and collaboratively to assure minimum loss of service by any I-Net location during this transition process. The parties agree to establish a procedure for transfer or cut-over from the existing configuration to the two (2) fiber strands that can be performed within minutes. The existing active fibers, if not part of the new configuration, will be retained as a fall- back link during the transition, subject to the following. Upon completion, inspection and testing of the two (2) fiber strand network, the six (6) fiber configuration, where existing, will be maintained in place for a period of up to 30 days. Following the successful cut over, the excess fiber plant beyond the two (2) active fiber strands will be returned to Charter. Maintenance and Access The City shall provide Charter with prompt and reasonable access to each of the Dark Fiber locations upon notice. A current list of contact information, both e-mail and telephone access will be provided for each I-net service location. Charter will provide the City with reasonable access for maintenance of City's equipment in the head end upon notice. Charter will maintain the outside plant network as part of its normal system maintenance. Within four (4) hours of notification of a fiber line break, Charter will use its best efforts to respond, to commence repairs and to work continuously until the repair is completed. Charter will coordinate all pertinent fiber cable plant maintenance with City technical representatives or representatives that may be designated to act on the City's behalf and shall keep such persons updated on the progress of repairs until complete. Charter shall not be responsible for maintaining any equipment owned by the City. To the extent not inconsistent with the terms of this Agreement, the City and Charter agree to the Standard Terms of Service set forth at Attachment 1 hereto. Exhibit B - Page 2 -re EXHIBIT C Schools and Public Buildings Receiving Free Video Service City of Gilroy Mount Madonna High School Rod Kelley Elementary School Las Animas Elementary School EI Roble Elementary School Brownell Middle School South Valley Middle School Eliot Elementary School Gilroy High School Glen View Elementary School Luigi Aprea Elementary School Gavilan Community College Las Animas Fire Station Gilroy Youth Center Gilroy Senior Center Gilroy Library Gilroy City Hall City Hall Annex City Corp Yard Chestnut Fire Station National Guard Armory Gateway Center Wheeler Gym/Community Center Vision Literacy Ascencion Solorsano Middle School Gilroy Unified School District Office Christopher High School 8750 Hirasaki CT 8755 Kern Ave 6550 Cimino St. 930 3rd St. 7800 Carmel St. 985 IOOF Ave 475 Old Gilroy St. 750 W Tenth St. 600 W 8th St. 9225 Calle del Rey 5055 Santa Teresa Blvd 8383 Wren Ave. 7400 Railroad St. 7371 Hanna St 7387 Rosanna St. 7351 Rosanna St 7370 Rosanna St. 613 Old Gilroy St. 7070 Chestnut St. 8490 Wren Ave 7151 Hanna St. 202 W 6th St. 42 Martin St. 7121 Grenache Way 7810 Arroyo Court 850 Day Road Exhibit C - Page 1 ATTACHMENT 1 STANDARD TERMS OF SERVICE 1. Site Visits and Repairs. If the City's misuse, abuse or modification of the facilities supplied by Charter necessitates a site visit for inspection, correction or repair, Charter shall charge the City a site visit fee as well as charges for any equipment or network, repair, or replacement necessary to restore the City's use of the facilities. 2. Dark Fiber Location Access And Installation (i) Access. The City shall provide Charter with reasonable access to the termination point of each Dark Fiber access point as necessary for Charter to review, install inspect, maintain or repair any equipment or materials required by this Agreement. If the City owns and/or controls the Dark Fiber access point, the City expressly grants to Charter permission to enter such Dark Fiber access point for the exercise of such right of access. If the City is not able to gain right of access for a Dark Fiber access point from the owner and/or controlling Party, Charter's obligations with respect to that Dark Fiber access point are terminated, null and void. (ii) Installation Review. Charter may perform an installation review of each Dark Fiber access point prior to the connection of fiber at that Dark Fiber access point. The City may be required to provide Charter with most accurate and updated site and/or physical network diagrams or maps of a Dark Fiber Location prior to the installation review. Charter may directly or through its own employees inspect the Dark Fiber access point before beginning installation and shall satisfy itself that safe installation of fiber to the Dark Fiber access point is possible. (iii) Site Preparation. City shall be responsible, at its own expense, for all reasonable site preparation activities necessary for delivery and installation of the dark fiber and the installation and ongoing provision transport on the Dark Fiber Network, including, but not limited to, the temporary relocation of the City's equipment, furniture and furnishings as necessary to access the dark fiber to ensure its proper installation. The City may be required to provide facilities' maps/diagrams prior to installation (iv) Installation. Charter will schedule one or more installation visits with the City. It is desirable (not required) to have a City representative available during installation. During installation, Charter shall perform an initial test to confirm that the transport over the Dark Fiber Network can be accomplished from the Dark Fiber Location. The City shall be responsible for access paths, moving or relocating furniture, furnishing or equipment, or other preparation activities necessary for Charter to install the dark fiber at the Dark Fiber Location. The City shall connect the fiber provided by Charter to the City's equipment to enable whatever services the City chooses to implement over the Dark Fiber Network. With respect to any excavation, Charter shall Attachment 1 - Page 1 be responsible for reasonable relocation efforts necessary to address any displacement resulting from such excavation. (v) OnQoinQ Visits. Charter will need access to the Dark Fiber Locations from time to time for inspecting, constructing, installing, operating and maintaining Charter's facilities. Except in emergency situations, Charter will obtain approval from the City (not to be unreasonably withheld or delayed) before entering the Dark Fiber Location. 3. City Use of the Dark Fiber Network The City agrees not to re-sell or re-distribute access to the Dark Fiber Network or any part thereof, in any manner without the express prior written consent of Charter. The City may use the Dark Fiber Network for intra-governmental, education and PEG purposes and for inter-governmental, education and PEG purposes among the City and the Cities of Hollister and San Juan Bautista. The City agrees not to use or permit third Parties to use the Dark Fiber Network for any illegal purpose or to achieve unauthorized access to any computer systems, software, data, or other copyright or patent protected material. The City agrees not to interfere with other customers' use of Charter's cable system and services. A material failure to comply with this Section may cause termination of the City's right to use the Dark Fiber Network under this Agreement and shall allow Charter to exercise other rights or remedies Charter may have under the law, subject to the notice and cure provisions in Section 7 herein. 4. Performance. Charter will use commercially reasonable efforts in keeping with normal industry standards to ensure that the Dark Fiber Network is available to the City twenty-four (24) hours per day, seven (7) days per week. It is possible however that there will be interruptions of service. Specifically, City understands and agrees that the Dark Fiber network may be unavailable from time to time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond Charter's reasonable control. Temporary service interruptions/outages for such reasons as well as service interruptions/outages caused by the City, its agents and employees, or for a Force Majeure Event, shall not constitute a failure by Charter to perform its obligations under this Agreement, and City will not hold Charter at fault for loss of City revenue or lost employee productivity due to service outages. 5. Limitation of Liability (i) Limited Warranty. Charter warrants that it will use commercially reasonable efforts in keeping with industry standards to cause the Dark Fiber Network to be available to the City. The foregoing limited warranty is exclusive and in lieu of all express and implied warranties whatsoever. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, CHARTER MAKES NO WARRANTIES EXPRESS OR IMPLIED AS TO THE DARK FIBER NETWORK AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED Attachment 1 - Page 2 WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING ANY EXPRESS PROVISIONS PROVIDED FOR ELSEWHERE IN THIS AGREEMENT NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE DARK FIBER NETWORK, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. (ii) Content. The City acknowledges that any content that the City may access or transmit through any service is provided by independent content providers over which Charter does not exercise and direct any control. Charter neither previews content nor exercises editorial control, nor endorses any opinions or information that the City may access through the Dark Fiber Network, and assumes no responsibility for content. Charter specifically disclaims any responsibility for the accuracy or quality of the information obtained by the City over the Dark Fiber Network. Such content or programs may include, without limitation, programs or content of an infringing, abusive, profane or sexually offensive nature. The City and their authorized representatives accessing other Parties' content through the Dark Fiber Network do so at the City's own risk, and Charter assumes no liability whatsoever for any claims, losses, action, damages, suits or proceedings arising out of or otherwise relating to such content. (iii) Damaoe. Loss Destruction of Software Files and/or Data. The City agrees that the City uses the Dark Fiber Network supplied by Charter at its sole risk. Charter does not manufacture dark fiber, which is provided on an "as is basis" without warranties of any kind. Charter assumes no responsibility whatsoever for any damage to or loss or destruction of any of the City's hardware, software, files, data or peripherals which may result from the City's use of the Dark Fiber Network. Charter does not warrant that data or files sent by or to the City will be transmitted in uncorrupted form or within a reasonable period of time. (iv) Authorized Access. If the City chooses to run or offer access to applications for governmental, educational or other authorized purposes from its equipment that permits others to gain access to the Fiber Network, the City must take appropriate security measures. Charter is not responsible for and assumes no liability for any damages resulting from the use of such applications, and the City shall hold Charter harmless from and indemnify Charter against any claims, losses, or damages arising from such use. Charter is not responsible and assumes no liability for losses, claims, damages, expenses, liability, or costs resulting from others accessing the City's computers, its internal network and/or the Dark Fiber Network through the City's Attachment 1 - Page 3 equipment, and the City shall hold Charter harmless from and indemnify Charter against any such claims, losses, or damages to the full extent arising from such access. Failure to comply with this Section may cause termination of the City's right to use the Dark Fiber Network under this Agreement and shall allow Charter to exercise other rights or remedies Charter may have under the law, subject to the notice and cure provisions in Section 7 herein. (v) Force Maieure Event. The City agrees that Charter shall not be liable for any inconvenience, loss, liability or damage resulting from any failure or interruption of the Dark Fiber Network directly or indirectly caused by circumstances beyond Charter's control, including but not limited to denial of use of poles or other facilities of a utility company; labor disputes; acts of war or terrorism; criminal, illegal or unlawful acts; natural causes, mechanical or power failures; or any order, law or ordinance in any way restricting the City's use of the Dark Fiber Network. 6. Indemnification Charter is not responsible for and assumes no liability for losses, claims, damages, expenses, liability, or costs resulting from the City's or its agent's use of the Dark Fiber Network. In addition to its specific indemnification responsibilities set forth elsewhere in this Agreement and as permissible under applicable law, the City agrees at its own expense to indemnify, defend and hold harmless Charter and its directors, employees, representatives, officers and agents (the "Indemnified Parties") against any and all claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by the Indemnified Parties to the full extent that such arise from the City's misrepresentation with regard to or noncompliance with the terms of this Agreement, the City's failure to comply with applicable law, and/or the City's use, negligence or willful misconduct. The Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim at the City's cost and the City agrees to cooperate with the Indemnified Parties in such case. 7. Notice and Opportunity to Cure. If either Party believes that the other has materially breached any part of this Agreement, the aggrieved Party shall provide the other with written notice of the alleged breach and an opportunity to cure the breach. If within 30 days following receipt of such notice from the aggrieved Party, the other Party fails to cure the alleged breach or otherwise resolve the matter to the satisfaction of the aggrieved Party, the aggrieved Party may take whatever lawful actions it deems necessary to protect its rights under this Agreement, including termination of the Agreement. Neither party may terminate this Agreement without first providing the other with the aforementioned notice and opportunity to cure. Attachment 1 - Page 4 8. Title Title to the Dark Fiber Network shall remain with Charter at all times. Upon termination of Charter's obligation to provide the City with use of a Dark Fiber Network, Charter shall have the right to remove its facilities. Charter shall at its own cost and expense have the right to remove the Dark Fiber Network and all components owned by Charter within sixty (60) days after such termination. Those portions of the Dark Fiber Network that are located in local government or school owned conduit that connects from the pedestal or pole across the property of the local government or school to the institutional demarcation point shall be considered abandoned if not removed by Charter within the aforementioned sixty (60) day period. 9. Compliance with Applicable Law The City shall not use or permit third Parties to use the Dark Fiber Network in any manner that violates applicable law or causes Charter to violate applicable law. Both Parties shall comply with all applicable laws and regulations when carrying out their respective duties hereunder. 10. No Third Party Beneficiaries The Parties agree that the terms of this Agreement and the Parties' respective performance of obligations as described herein are not intended to benefit any person or entity not Party to this Agreement, that the consideration provided by each Party under the Agreement only runs to the respective Parties hereto, and that no person or entity not a Party to this Agreement shall have any rights under this Agreement nor the right to require the performance of obligations by either of the Parties under this Agreement. 11. Notices Any notices to be given under this Agreement shall be validly given or served only if in writing and sent by nationally recognized overnight delivery service or certified mail, return receipt requested, to the following addresses: If to Charter: Falcon Cable Systems Company II L.P. 9335 Prototype Drive Reno, Nevada, 89521 with copies to: Charter Communications A TIN: Legal Department-Operations Attachment 1 - Page 5 ~ 12405 Powerscourt Drive St. Louis, MO 63131 If to City City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Each Party may change its respective address(es) for legal notice by providing notice to the other Party. By: Falcon Cable Systems Company II, L.P. By: Charter Co ications VII, LLC, its General Partner By: Charter unications, Inc., its Manager By: 0,-1[-/0 Its: Attachment 1 - Page 6