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2000 - Charter Communications - Cable T.V. Franchise AgreementPRF12756 -1 Richard M. Cieri Paul M. Basta Stephen E. Hessler KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 -4611 Telephone: (212) 446 -4800 Facsimile: (212) 446 -4900 - and - Ray C. Schrock KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 -6636 Telephone: (312) 861 -2000 Facsimile: (312) 861 -2200 Proposed Counsel to the Debtors and Debtors in Possession -and- Albert Togut Frank A. Oswald TOGUT, SEGAL & SEGAL LLP One Penn Plaza New York, New York 10119 Telephone: (212) 594 -5000 Facsimile: (212) 967 -4258 Proposed Counsel to Debtor Charter Investment, Inc. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK BY MAR 3 0 2009 In re: ) Chapter 11 CHARTER COMMUNICATIONS, INC., et al., ) Case No. 09- Debtors. ) Joint Administration Requested K &E 14195948. DEBTORS' MOTION FOR ENTRY OF INTERIM AND FINAL ORDERS (A) AUTHORIZING, BUT NOT DIRECTING, THE DEBTORS TO REMIT AND PAY CERTAIN TAXES AND FEES AND (B) AUTHORIZING AND DIRECTING BANKS AND OTHER FINANCIAL INSTITUTIONS TO HONOR RELATED CHECKS AND ELECTRONIC PAYMENT REQUESTS The above - captioned debtors (collectively, the "Debtors," or "Charter")' hereby move the Court, pursuant to this motion (the "Motion "), for the entry of interim and final orders, The Debtors in these cases include: Ausable Cable TV, Inc.; Hometown TV, Inc.; Plattsburgh Cablevision, Inc.; Charter Communications Entertainment 1, LLC; Falcon First Cable of New York, Inc.; Charter Communications, Inc.; Charter Communications Holding Company, LLC; CCHC, LLC; Charter Communications Holdings, LLC; CCH I Holdings, LLC; CCH 1, LLC; CCH 11, LLC; CCO Holdings, LLC; Charter Communications Operating, LLC; American Cable Entertainment Company, LLC; Athens Cablevision, Inc.; Cable Equities Colorado, LLC; Cable Equities of Colorado Management Corp.; CC 10, LLC; CC Fiberlink, LLC; CC Michigan, LLC; CC Systems, LLC; CC V Holdings, LLC; CC VI Fiberlink, LLC; CC VI Operating, LLC; CC VII Fiberlink, LLC; CC Vlll Fiberlink, LLC; CC VIII Holdings, LLC; CC VIII Leasing of Wisconsin, LLC; CC VIII Operating, LLC; CC VIII, LLC; CCH I Capital Corp.; CCH I Holdings Capital Corp.; CCH II Capital Corp.; CCO Fiberlink, LLC; CCO Holdings Capital Corp.; CCO NR Holdings, LLC; CCO Purchasing, LLC; Charter Advertising of Saint Louis, LLC; Charter Cable Leasing of Wisconsin, LLC; Charter Cable Operating Company, L.L.C.; Charter Cable Partners, L.L.C.; Charter Communications Entertainment, LLC; Charter Communications Entertainment I, DST; Charter Communications Entertainment 11, LLC; Charter Communications Holdings Capital Corporation; Charter Communications Operating Capital Corp.; Charter Communications Properties LLC; Charter Communications V, LLC; Charter Communications Ventures, LLC; Charter Communications VI, LLC; Charter Communications VII, LLC; Charter Communications, LLC; Charter Distribution, LLC; Charter Fiberlink — Alabama, LLC; Charter Fiberlink AR- CCVII, LLC; Charter Fiberlink AZ- CCVII, LLC; Charter Fiberlink CA -CCO, LLC; Charter Fiberlink CA- CCVII, LLC; Charter Fiberlink CC VIII, LLC; Charter Fiberlink CCO, LLC; Charter Fiberlink CT -CCO, LLC; Charter Fiberlink — Georgia, LLC; Charter Fiberlink ID- CCVII, LLC; Charter Fiberlink — Illinois, LLC; Charter Fiberlink IN -CCO, LLC; Charter Fiberlink KS -CCO, LLC; Charter Fiberlink LA -CCO, LLC; Charier Fiberlink MA -CCO, LLC; Charter Fiberlink — Michigan, LLC; Charter Fiberlink — Missouri, LLC; Charter Fiberlink MS- CCVI, LLC; Charter Fiberlink NC -CCO, LLC; Charter Fiberlink NC- CCVII, LLC; Charter Fiberlink — Nebraska, LLC; Charter Fiberlink NH -CCO, LLC; Charter Fiberlink NM- CCO,_LLC; Charter Fiberlink NV- CCVII, LLC; Charter Fiberlink NY -CCO, LLC; Charter Fiberlink NY- CCVII, LLC; Charter Fiberlink OH- CCO, LLC; Charter Fiberlink OK- CCVII, LLC; Charter Fiberlink OR- CCVII, LLC; Charter Fiberlink SC- CCO, LLC; Charter Fiberlink SC- CCVII, LLC; Charter Fiberlink — Tennessee, LLC; Charter Fiberlink TX- CCO, LLC; Charter Fiberlink UT- CCVII, LLC; Charter Fiberlink VA -CCO, LLC; Charter Fiberlink VT -CCO, LLC; Charter Fiberlink WA- CCVII, LLC; Charter Fiberlink— Wisconsin, LLC; Charter Fiberlink WV -CCO, LLC; Charter Fiberlink, LLC; Charter Gateway, LLC; Charter Helicon, LLC; Charter Investment, Inc.; Charter RMG, LLC; Charter Stores FCN, LLC; Charter Video Electronics, Inc.; Dalton Cablevision, Inc.; Enstar Communications Corporation; Falcon Cable Communications, LLC; Falcon Cable Media, a California Limited Partnership; Falcon Cable Systems Company II, L.P.; Falcon Cablevision, a California Limited Partnership; Falcon Community Cable, L.P.; Falcon Community Ventures 1, LP; Falcon First Cable of the Southeast, Inc.; Falcon First, Inc.; Falcon Telecable, a California Limited Partnership; Falcon Video Communications, L.P.; Helicon Partners I, L.P.; HPI Acquisition Co., L.L.C.; Interlink Communications Partners, LLC; Long Beach, LLC; Marcus Cable Associates, L.L.C.; Marcus Cable of Alabama, L.L.C.; Marcus Cable, Inc.; Midwest Cable Communications, Inc.; Peachtree Cable TV, L.P.; Peachtree Cable T.V., LLC; Renaissance Media LLC; Rifkin Acquisition Partners, LLC; Robin Media Group, Inc.; Scottsboro TV Cable, Inc.; Tennessee, LLC; The Helicon Group, L.P.; Tioga Cable Company, Inc.; and Vista Broadband Communications, LLC. K &E [4}95948. substantially in the forms attached hereto as Exhibit A and Exhibit B, (a) authorizing, but not directing, the Debtors to pay certain sales, use, franchise, gross receipts, and other taxes as well as fees for licenses, permits, and other similar charges and assessments owed to the Authorities (as defined below), from the date hereof (the "Petition Date ") through the date of the final hearing in these cases (the "Chapter 11 Cases'), without regard to whether such taxes and fees accrued or arose before or after the Petition Date, including all taxes subsequently determined to be owed for the period prior to the Petition Date, and (b) authorizing and directing banks and other financial institutions to receive, process, honor, and pay checks presented for payment and electronic payment requests relating to the foregoing. In support of this Motion, the Debtors respectfully state as follows: Jurisdiction 1. The Court has jurisdiction over this Motion under 28 U.S.C. §§ 157 and 1334. This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). 2. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. 3. The statutory bases for the relief requested herein are sections 363(b), 507(a)(8), 541 and 105(a) of the Bankruptcy Code, 11 U.S.C. §§ 101 -1532 (the `Bankruptcy Code'). Backeround2 4. Charter is one of the largest providers of broadband entertainment and communications services in the United States. Specifically, Charter is the fourth - largest cable operator in the country, with operations in 27 states and approximately 5.5 million residential and commercial customers. As of the date Petition Date, Charter has approximately 16,500 Z A description of the Debtors' business, the reasons for filing these Chapter 1 l Cases and the relief sought from this Court to allow for a smooth transition into chapter 11 are set forth in the Declaration of Gregory L. Doody, Chief Restructuring Officer and Senior Counsel of Charter Communications, Inc., in Support of First Day Pleadings (the "First Day Declaration ") filed contemporaneously with this Motion. N K E 14195948. employees, of which approximately 100 employees are represented by one collective bargaining agreement. Unlike many companies entering chapter 11, Charter comes before this Court at a time when its business is continuing to grow. Charter is operationally sound and by all accounts heading in the right direction as a functioning business. Charter generates significant positive cash flow before debt service and has achieved upward; favorable trends as an operating enterprise. Charter is before this Court primarily because of recent deteriorating capital market conditions and its significant debt load of approximately $21.7 billion. 5. After lengthy negotiations, Charter reached agreement with the holders of approximately 73% (approximately $2.9 billion in principal amount) of the CCH I, LLC ( "CCH I ") notes, holders of approximately 52% (approximately $1.3 billion in principal amount) of the CCH II ( "CCH II ") notes (collectively, the "Crossover Committee "), and Paul G. Allen ( "Mr. Allen ") on the terms of a consensual, prearranged plan of reorganization (the "Plan "). Since reaching an agreement on the material terms of the Plan, the parties have engaged in extensive negotiations relating to the documentation of the Plan, the accompanying disclosure statement, and the exhibits thereto. 6. The Plan essentially provides for a balance sheet restructuring that will leave intact both Charter's operations and the senior portion of its capital structure. The Plan also provides that Charter's trade creditors will be paid in full. To that end, Charter has filed a motion with the Court seeking to pay its trade creditors in the ordinary course of business. Charter believes that such payment will allow it to continue its operations with minimal disruption and preserve its enterprise value for the benefit of the Debtors' estates, creditors, and all parties in interest. The secured prepetition lenders of Charter's operating subsidiary, whose cash collateral is being used to pay these trade creditors, support this relief. 3 K &E 14195948. 7. The Plan will be funded with (a) cash on hand and cash generated from Charter's operations, (b) an exchange of CCH II notes (the "Notes Exchange "), (c) an additional debt commitment by certain holders of CCH II notes (the "New Debt Commitment "), and (d) the proceeds of an equity rights offering (the "Rights Offering ") that certain members of the Crossover Committee have agreed to backstop. Charter expects to raise an aggregate amount of approximately $1.2 billion through the Notes Exchange, $267 million through the New Debt Commitment, and up to $2 billion through the Rights Offering. Importantly, other than the Plan funding described above, Charter is not seeking to enter into debtor -in- possession financing. Charter intends to fund these Chapter 11 Cases using cash on hand and significant positive cash flow from operations. As of March 27, 2009, Charter had approximately $700 million in cash on hand and cash equivalents. 8. On the Petition Date, each of the Debtors filed a petition with the Court under chapter 11 of the Bankruptcy Code. The Debtors are operating their businesses and managing their properties as debtors in possession pursuant to. sections 1107(a) and 1108 of the Bankruptcy Code. No request for the appointment of a trustee or examiner has been made in the Chapter 11 Cases, and no committees have been appointed or designated. Concurrently with the filing of this Motion, the Debtors have requested procedural consolidation and joint administration of the Chapter 11 Cases. The Debtors' Taxes 9. In the ordinary course of the Debtors' businesses, the Debtors (a) collect sales taxes from their customers and incur taxes, including, but not limited to, use, franchise, income and other taxes in operating their businesses (collectively, the "Taxes ")3 and (b) collect 3 The Debtors have a taxable presence in 29 states. 0 ME 14395948. regulatory fees and other similar charges and assessments (collectively, the "Fees ")4 on behalf of various taxing, licensing, and regulatory authorities (collectively, the "Authorities ")5 and pay Fees to such Authorities for licenses and permits required to conduct the Debtors' businesses.6 The Taxes and Fees are paid to the respective Authorities in accordance with all applicable laws and regulations. 10. The Debtors estimate that the total amount of prepetition Taxes and Fees owing to the various Authorities will not exceed approximately $58,000,000. Of this prepetition amount, approximately $4,300,000 will become due and payable shortly after the Petition Date and before a final hearing on this Motion. With the exception of the use taxes, the franchise fees, certain of the corporate fees and the Michigan Business Tax, all of the Taxes and Fees are collected from third parties and remitted to the appropriate Authority. The Debtors have timely filed all returns for the Taxes and Fees as of the Petition Date. 11. If the Taxes and Fees are not paid, some, if not all, of the applicable governmental Authorities may cause the Debtors to be audited. Such audits will unnecessarily divert the Debtors' attention away from their reorganization efforts. And if the Debtors do not pay such amounts in a timely manner, the governmental Authorities may attempt to suspend the Debtors' operations, file liens, seek to lift the automatic stay, and pursue other remedies that could harm 4 When the Debtors collect Fees from their customers, they most often do so on behalf of governmental entities. The Debtors are then required to remit the collected amounts to the appropriate government entity. The Debtors hereby request authority to pay Fees regardless of whether they constitute trust fund obligations. 5 The complete list of thousands of tax Authorities is too voluminous for inclusion in this Motion, but a comprehensive list of each Authority can be obtained at www.kccllc.net/Charter or by contacting Albert Kass at KCC via email at akass @kccllc.com or by phone at (310) 776 -7360. 6 The Debtors do not seek authority to collect and pay state and federal withholding taxes under this motion but rather request such authority as part of the Debtors' Motion for Entry of Interim and Final Orders Authorizing, But Not Directing, the Debtors to (A) Pay Certain Prepetition Compensation and Reimbursable Employee Expenses, (B) Pay and Honor Employee Medical and Other Benefits and (C) Continue Employee Wages and Benefits Programs filed concurrently herewith. 5 K &E 14395948. the estates. Finally, some of these outstanding tax liabilities are for trust fund taxes that the Debtors have collected and hold in trust for the benefit of the applicable governmental Authority. Therefore, such funds do not constitute property of the estate and could not otherwise be used by the Debtors. 12. In all cases, the Debtors' failure to pay the Taxes and Fees could have a material adverse impact on their ability to operate in the ordinary course of business. Any disputes that could impact their ability to conduct business in a particular jurisdiction could have a wide- ranging and adverse effect on the Debtors' operations as a whole. 13. Accordingly, the Debtors are seeking authority to pay (a) the approximately $4,300,000 in prepetition Taxes and Fees that will become due and payable during the period between the Petition Date and before a final hearing on this Motion on an interim basis; and (b) all Taxes and Fees without regard to whether such Taxes or Fees accrued or arose before or after the Petition Date on a final basis. 1. Sales and Use Taxes 14. In the ordinary course of business, the Debtors collect sales taxes (the "Sales Taxes ") on a per sale basis from the purchasers of certain of their products and services on behalf of various state and local taxing authorities (the "Taxing Authorities "), and remit them periodically to such Taxing Authorities. The process by which the Debtors remit the Sales Taxes varies, depending on the nature of the tax and the Taxing Authority to which it is to be paid. 15. Sales Taxes accrue as services are provided and are calculated based upon a statutory percentage of the sale price. For the most part, Sales Taxes are paid in arrears, ordinarily on a monthly basis, during the month following the month in which the taxes were accrued. For some jurisdictions, the Sales Taxes are paid on a quarterly, semi - annual or annual basis so that the taxes are paid in the month subsequent to the period in which the taxes were 0 K &E 14395948. accrued. Other jurisdictions, however, require the Debtors to remit estimated Sales Taxes on a monthly, quarterly, semiannual or annual basis. The Debtors subsequently "true up" the estimated payment to actual liability with their next return filed to determine any payment deficiency or surplus of the applicable period and an appropriate refund or payment is then made. 16. The Debtors also are obligated to remit use taxes (the "Use Taxes," and together with the Sales Taxes, the "Sales and Use Taxes ") on a periodic basis to the applicable Taxing Authorities. The Debtors incur Use Taxes in connection with the purchase of taxable equipment and supplies for their own use, in circumstances where the vendor of such equipment and supplies failed to collect a Sales Tax from the Debtors. Generally, the Debtors remit the Use Taxes to the relevant Taxing Authorities on the same basis as they remit Sales Taxes. 17. The Debtors estimate that they owe approximately $14,800,000 in Sales and Use Taxes to the Taxing Authorities as of the Petition Date. Of this amount, approximately $1,400,000 is due within 20 days of the Petition Date. H. Fees 18. In addition to the Sales and Use Taxes, in the ordinary course of conducting their business operations, the Debtors collect from their customers and pay to various federal, state, and local regulatory authorities (the "Regulatory Authorities" and, together with the Taxing Authorities, the "Authorities "), various fees and taxes, including, but not limited to, emergency telephone services charges, federal excise taxes, state and local utility user fees, state general and gross receipts assessments, FCC fees, universal lifeline telephone service fees, universal service fund fees, universal access fund fees, inspection and supervision fees, telecommunications relay service fees, telecommunications devices access program fees, advanced services fund fees, state healthcare foundation fees, state transportation foundation fees, dual party relay fund fees and other similar fees (collectively, the "Fees" and, together with 7 K &E 14395948. the Sales and Use Taxes, Franchise Fees, and E -Rate Amounts, the "Taxes and Fees "). The Fees are used to fund various federal, state and city agencies, and to subsidize the cost of local telecommunications service. 19. The process by which the Debtors remit the Fees varies and depends upon the nature of the particular Regulatory Fee and the Regulatory Authority to which it is to be paid. The Debtors generally pay the Fees within thirty (30) days following the end of the period in which the fees accrue. 20. Depending on the particular jurisdiction, the Fees are assessed by the Regulatory Authorities based upon (a) a percentage of the Debtors' gross revenues derived from the provision of services within the jurisdiction of the relevant Regulatory Authority, (b) the number of consumers serviced by the Debtors in the jurisdiction, (c) the number of access liens provided by the Debtors, or (d) as a flat fee. These fees are typically imposed by the Regulatory Authorities in exchange for granting the Debtors authorization to provide their services in the particular Regulatory Authority's jurisdiction. 21. The Debtors estimate that as of the Petition Date approximately $4,000,000 will be accrued and unpaid in respect of Fees. Of this amount, approximately $2,000,000 is due within 20 days of the Petition Date. I1I. Franchise Fees 22. The Debtors pay certain franchise fees (the "Franchise Fees ") to various localities pursuant to agreements for the use of their right -of -ways. The Debtors recover the costs of Franchise Fees by surcharging their customers. The Debtors estimate that as of the Petition Date, approximately $39,200,000 will be accrued and unpaid in respect of Franchise Fees. Of that amount, approximately $600,000 will be due within 20 days of the Petition Date. 0 K &E 14395948. IV. E -Rate Program 23. Pursuant to the Universal Service Order (the "US Order ") adopted by the FCC on May 7, 1997, eligible schools and libraries are entitled to receive rebates during a funding year ranging from 20% to 90% on telecommunications services and Internet access (the "E -Rate Program"). The rebates are funded from the Universal Service Fund and are administered by the Schools and Libraries Division (the "SLD ") of the Universal Service Administration Company (the "USAC "). Each funding year commences on July I and terminates on June 30 of the following year. 24. In the ordinary course of their businesses, the Debtors provide certain schools and libraries (the "Schools and Libraries ") with telecommunications and Internet access services (the "Services "). The Debtors manage Schools and Libraries accounts in one of two ways. The first method provides that the Debtors bill the Schools and Libraries at the full rate for the Services. The Schools and Libraries pay the Debtors in full and seek reimbursement from the USAC. The Debtors are required to sign a Billed Entity Applicant Reimbursement form the "BEAR Forms ") for the Schools and Libraries concurring with the statement of Services and confirming the right of the Schools and Libraries to obtain reimbursement from the USAC. The BEAR Forms are then submitted by the Schools and Libraries to the SLD. The second method provides that the Debtors bill the Schools and Libraries the discounted amount approved by the USAC for the Services. The Debtors then seek reimbursement directly from the USAC for the discounted amounts. The Schools and Libraries may choose the method for reimbursement. 25. Under the first method, the USAC processes each BEAR Form and mails a check (the "Rebate Checks ") to the debtors in an amount equal to the discount rate for the applicable Services (in the aggregate, the "E -Rate Amount "). The Debtors are required to deposit the Rebate Checks into their own bank accounts and issue new checks drawn upon the Debtors' G K &E 14395948. bank accounts to the appropriate Schools and Libraries within 20 calendar days from the date of receiving the Rebate Checks. Failure to issue a check under this method within the prescribed time is a violation of the program rules and can result in suspension or dismissal from the program by the FCC. 26. The Debtors anticipate that as of the Petition Date, the aggregate amount of unissued and accrued Rebate Checks due within 20 days of the Petition Date is approximately $200,000. As the Rebate Checks received by the Debtors are not property of the Debtors' estate and are comparable to a trust fund tax, the Debtors seek the authority to issue checks to Schools and Libraries postpetition, regardless of whether the services for which the rebates are issued were rendered prepetition. Relief Requested 27. By this Motion, the Debtors seek entry of an order authorizing them to pay in the ordinary course of business any Taxes and Fees without regard to whether such obligations accrued or arose before or after the Petition Date, including all taxes subsequently determined to be owed for the period prior to the Petition Date. The Debtors estimate they owe an aggregate amount of approximately $58,000,000 on account of prepetition Taxes and Fees, of which approximately $4,300,000 will become due during the period between the Petition Date and before a final hearing on this Motion. Accordingly, the Debtors seek to pay approximately $4,300,000 of the approximately $58,000,000 in prepetition Taxes and Fees that are due within 20 days of the Petition Date and before'a final hearing on this Motion. The Debtors further seek authority to pay the balance of any prepetition Taxes and Fees outstanding, as well as any Taxes and Fees or obligations that become due, without regard to whether such Taxes and Fees or obligations accrued or arose before or after the Petition Date, on a final basis. II17 K &E 14395948. 28. In addition, the Debtors request that the Court schedule a final hearing in approximately 20 days of the Petition Date to consider approval of the Motion on a final basis. 29. The Debtors submit the Taxes and Fees and E -Rate Amounts to the Authorities on a periodic basis with funds drawn by checks (the "Checks ") or by means of electronic funds transfers (the "Electronic Transfers "). Prior to the Petition Date, certain Authorities were sent Checks or Electronic Transfers as payment for the Debtors' obligations with respect to prepetition Taxes and Fees or E -Rate Amounts and certain of the checks may not have cleared the Debtors' banks or other financial institutions (together, the "Banks ") as of the Petition Date. The Debtors therefore also request that all applicable Banks be authorized to receive, process, honor, and pay all checks presented for payment and to honor all electronic payment requests made by the Debtors related to the foregoing, whether such checks were presented or electronic requests were submitted prior to or after the Petition Date. The Debtors further request that all such Banks be authorized to rely on the Debtors' designation of any particular check or electronic payment request as approved pursuant to this Motion. Basis for Relief 30. There are several bases for allowing a debtor in possession to pay taxes and related fees in the ordinary course of business, including the following: (a) certain of the Taxes and Fees are not property of the estate pursuant to section 541(d) of the Bankruptcy Code; (b) section 105 of the Bankruptcy Code and the Court's general equitable powers permit the Court to grant the relief sought; (c) portions of the Taxes and Fees may be entitled to priority status pursuant to section 507(a)(8) of the Bankruptcy Code; (d) section 363 of the Bankruptcy Code gives the Debtors authority to remit payment on account of such Taxes and Fees in the ordinary course of business; (e) governmental entities may sue the Debtors' directors and officers for unpaid Taxes and Fees, distracting the Debtors from their reorganization efforts; 11 K &E I439SW8. (f) prompt payment of Taxes and Fees may eliminate unnecessary penalties and interest expense and likely would not give the Authorities any more than they otherwise would be entitled to under a plan of reorganization. I. Ample Authority Exists for This Court to Authorize the Debtors to pay Taxes and Fees 31. First, section 541(d) of the Bankruptcy Code provides, in relevant part, that "[p]roperty in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest ... becomes property of the estate under subsection (a)(1) or (2) of this section only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold." 1 I U.S.C. § 541(d). 32. Many of the Taxes and Fees, including the federal and some state universal service fund fees, constitute trust fund taxes, which the Debtors are required to collect from their customers and hold in trust for payment to the Authorities. As a result, courts have held that such taxes are not part of a debtor's estate under section 541(d). See, e.g., Begier v. Internal Revenue Serv., 496 U.S. 53, 57 -60 (1990) (holding that any prepetition payment of trust fund taxes is not a transfer subject to avoidance because such funds are not the debtor's property); DuCharmes & Co., Inc. v. Mich., 852 F.2d 194 (6th Cir. 1988) (per curiam) (same); In re Shank, 792 F.2d 829, 833 (9th Cir. 1986) (sales tax required by state law to be collected by sellers from their customers is a trust fund tax and not released by bankruptcy discharge); DeChiaro v. New York State Tax Comm'n, 760 F.2d 432, 435 -36 (2d Cir. 1985) (same); Rosenow v. 111. Dent. of Revenue (In re Rosenow), 715 F.2d 277, 279 -82 (7th Cir. 1983) (same); Western Surety Co. v. Waite (In re Waite), 698 F.2d 1177, 1179 (11th Cir. 1983) (same). The Debtors, therefore, generally do not have an equitable interest in funds held on account of such trust fund taxes, and the Debtors should be permitted to pay those funds to the Authorities as they become due. 12 K &E 14395948. 33. Moreover, to the extent any of the Taxes and Fees do not constitute trust fund taxes in a particular jurisdiction, the Court may rely on its general equitable powers to grant the relief requested in this Motion as codified in section 105(a) of the Bankruptcy Code. Section 105(a) empowers the Court to "issue any order, process or judgment that is necessary to carry out the provisions of [the Bankruptcy Code]." l 1 U.S.C. § 105(a). A bankruptcy court's use of its equitable powers to "authorize the payment of prepetition debt when such payment is needed to facilitate the rehabilitation of the debtor is not a novel concept." In re Ionosphere Clubs, Inc., 98 B.R. 174, 175 -176 (Bankr. S.D.N.Y. 1989) (citing Miltenberger v. Logansport, C. & S.W. R. Co., 106 U.S. 286, l S.Ct. 140, 27 L.Ed. 117 (1882)). Section 105(a) authorizes a court to "permit pre -plan payment of a prepetition obligation when essential to the continued operation of the debtor." In re NVR L.P., 147 B.R. 126, 127 (Bankr. E.D. Va. 1992); see also In re Just for Feet, Inc., 242 B.R. 821, 825 (D. Del. 1999). 34. The application of section 105(a) in the context of this Motion is appropriate because the relief requested herein is consistent with the rehabilitative policy of chapter 11 of the Bankruptcy Code. A debtor in possession is a fiduciary with a duty to protect and preserve the estate, including the value of the business as a going concern. In re CoServ, L.L.C., 273 B.R. 487, 497 (Bankr. N.D. Tex. 2002) ( "There are occasions when this [fiduciary] duty can only be fulfilled by the preplan satisfaction of a prepetition claim. "). Granting the relief requested in this Motion will enhance the likelihood of the Debtors' successful rehabilitation, maximize the value of the estates' assets, and thus benefit the estates' creditors. 35. In addition, some or all of the Taxes and Fees are or may be entitled to priority status pursuant to section 507(a)(8) of the Bankruptcy Code and, therefore, must be paid in full under section 1129(a)(9)(C) of the Bankruptcy Code. Certain of the Fees may be entitled to 13 K &E 14395948. priority status under section 507(a)(8)(A) of the Bankruptcy Code as "tax[es] ... measured by income or gross receipts." Despite being labeled "fees," these expenditures actually constitute a kind of tax. For bankruptcy purposes, a tax is characterized as an (1) involuntary pecuniary burden, regardless of name, laid upon the individual or property; (2) imposed by, or under the authority of the legislature; (3) for public purposes, including the purposes of defraying expenses of government or undertakings authorized by it; and (4) under the police or taxing power of the estate. LTV Steel Company, Inc. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478, 498 (2d Cir. 1995). The Fees are an involuntary pecuniary burden, generally imposed by the authority of a federal, state, or local legislature under its police or taxing powers and used for the public purposes of funding various federal and state agencies and subsidizing the high cost of local and other governmental support services. As a tax assessed as a percentage of the debtors' revenue derived from the provision of services within the jurisdiction of the relevant regulatory body, certain of the Fees must be paid in full before any general unsecured obligations of a Debtor may be satisfied. 36. Furthermore, in some cases, the Authorities may assert that the Debtors' directors and officers are personally liable if the Debtors fail to meet the obligations imposed upon them to remit Taxes and Fees. To the extent such accrued Taxes and Fees were unpaid as of the Petition Date, the Debtors' directors and officers may be subject to lawsuits in certain jurisdictions during the pendency of these Chapter 11 Cases, even if the failure to pay such Taxes and Fees was not a result of any malfeasance on their part. Such potential litigation would prove distracting for the Debtors, the named directors and officers and this Court, which may be asked to entertain various motions seeking injunctions relating to potential court actions. 14 ME 14395948. Therefore, it is in the best interests of the Debtors' estates to eliminate the possibility of these distractions. 37. The Court also may authorize payment of prepetition obligations such as the Taxes and Fees pursuant to section 363 of the Bankruptcy Code. Section 363(b) provides, in relevant part, that "[t]he [debtor], after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate." 11 U.S.C. § 363(b)(1). Under this section, a court may authorize a debtor to pay certain prepetition claims. See, e.g., In re Ionosphere Clubs, Inc., 98 B.R. 174, 175 ( Bankr. S.D.N.Y. 1989) (affirming lower court order authorizing payment of prepetition wages pursuant to section 363(b)). To do so, "the debtor must articulate some business justification, other than mere appeasement of major creditors." Id. at 175. As discussed herein, paying the Taxes and Fees will benefit the estate and its creditors by allowing the Debtors' operations to continue without interruption. 38. Accordingly, the timely payment of the Taxes and Fees is necessary and in the best interest of the Debtors, their estates, and their creditors. In numerous chapter 11 cases, bankruptcy courts in this district and other districts have exercised their powers to authorize debtors to pay prepetition tax obligations. See, e.g., In re Tronox Incorporated. Case No. 09- 10156 (Banks S.D.N.Y. February 6, 2009); In re Lvondell Chemical Co., Case No. 09 -10023 (Bankr. S.D.N.Y. Jan. 8, 2009); In re Lenox Sales, Inc., Case No. 08 -14679 (Bankr. S.D.N.Y. Dec. 16, 2008); In re Wellman, Inc., Case No. 05 -10595 (Bankr. S.D.N.Y. Feb. 26, 2008); In re Musicland Holding Corp., Case No. 06 -10064 ( Bankr. S.D.N.Y. Jan. 17, 2006); In re Calpine Corp., Case No. 05 -60200 (Bankr. S.D.N.Y. December 27, 2005); In re Delta Air Lines, Inc., Case No. 05 -17923 (Bankr. S.D.N.Y. September 16, 2005); In re Tower Automotive, Inc., Case 15 K &E 14395948. No. 05 -10578 (Bankr. S.D.N.Y. February 3, 2005). The Debtors submit that the present circumstances warrant similar relief in these Chapter 11 Cases. II. Cause Exists to Authorize and Direct the Debtors' Financial Institutions to Honor Checks and Electronic Fund Transfers 39. The Debtors represent that they have sufficient availability of funds to pay the amounts described herein in the ordinary course of business by virtue of cash reserves and expected cash flows from ongoing business operations. Also, under the Debtors' existing cash management system, the Debtors can readily identify checks or wire transfer requests as relating to an authorized payment made with respect to Taxes and Fees. Accordingly, the Debtors believe that checks or wire transfer requests, other than those relating to authorized payments, will not be honored inadvertently. The Debtors therefore request that the Court authorize and direct all applicable financial institutions, when asked by the Debtors, to receive, process, honor and pay any and all checks or wire transfers related to the payment of any Taxes and Fees. The Requirements of Bankruptcy Rule 6003 are Satisfied 40. Bankruptcy Rule 6003 requires that any motion seeking relief to use property of the estate pursuant to Bankruptcy Code section 363 or to pay prepetition claims within 20 days of the Petition Date must show that the relief would prevent "immediate and irreparable harm." For the many reasons outlined above, the failure to pay Taxes and Fees would cause immediate and irreparable harm to the Debtors' restructuring efforts. For example, the failure to pay Taxes and Fees could lead to distracting litigation against the Debtors and their officers and directors personally by the Authorities. This reorganization obviously requires the complete attention of the Debtors' officers and directors. Thus, if the relief is not granted, these tax related lawsuits would cause the Debtors' estates immediate and irreparable harm by detracting from the reorganization efforts. See In re Calvine Corp., 365 B.R. 401, 410 (S.D.N.Y. 2007) (holding that 16 K &E 14395948. potential distractions to employees constitute "imminent irreparable harm" if they would impact the restructuring process); In re Lomas Fin. Com., 117 B.R. 64, 67 (S.D.N.Y. 1990) (same). Moreover, the various counterparties to the Debtors' franchise agreements throughout the country could seek to terminate or otherwise impair these franchise arrangements, potentially impairing the Debtors' delivery of telecommunications services to some customers. Motion Practice 41. This Motion includes citations to the applicable rules and statutory authorities upon which the relief requested herein is predicated, and a discussion of their application to this Motion. Accordingly, the Debtors submit that this Motion satisfies Rule 9013 -1(a) of the Local Bankruptcy Rules for the Southern District of New York (the "Local Rules "). Debtors' Reservation of Rights 42. Nothing in this Motion should be construed as impairing the Debtors' right to contest the amounts of any Taxes and Fees allegedly owing to the various Authorities, and the Debtors expressly reserve all their rights with respect thereto. Notice 43. The Debtors have provided notice of this Motion to: (a) the Office of the United States Trustee for the Southern District of New York; (b) the entities listed on the Consolidated List of Creditors Holding the 80 Largest Unsecured Claims filed pursuant to Bankruptcy Rule 1007(d); (c) counsel to the agent under the Debtors' prepetition first lien credit facility; (d) counsel to the agent under the Debtors' prepetition second lien credit facility; (e) the counterparties to those certain interest rate swap agreements with CCO; (f) counsel to the unofficial committee of unaffiliated holders of those certain CCH I and CCH II notes issuances; (g) counsel to the unofficial committee of unaffiliated holders of those certain CCH II note issuances; (h) the indenture trustees for those indentures to which a Debtor is a party; (i) counsel 17 K &E 14395948. to Vulcan Inc.; 0) the Internal Revenue Service; (k) the Securities and Exchange Commission; (1) the Federal Communications Commission; (m) the Office of the Attorney General in all of the states in which the Debtors operate; and (n) any applicable state public utilities commissions required to receive notice under the Bankruptcy Rules or Local Rules. In light of the nature of the relief requested, the Debtors respectfully submit that no further notice is necessary. In K &E 14395948. WHEREFORE, the Debtors respectfully request that the Court enter interim and final orders, substantially in the forms attached hereto as Exhibit A and Exhibit B, (a) authorizing, but not directing, the Debtors to pay certain sales, use, franchise, gross receipts, single business, real and personal property, and other taxes, as well as fees for licenses, permits, and other similar charges and assessments, owed to the Authorities, without regard to whether such obligations accrued or arose before or after the Petition Date, including all taxes subsequently determined to be owed for the period prior to the Petition Date, (b) authorizing and directing banks and other K &E 14 395948. financial institutions to receive, process, honor, and pay checks presented for payment and electronic payment requests relating to the foregoing, and (c) granting such other and further relief as is just and proper. New York, New York /s/ Paul M. Basta Dated: March 27, 2009 Richard M. Cieri Paul M. Basta Stephen E. Hessler KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 -4611 Telephone: (212) 446 -4800 Facsimile: (212) 446 -4900 and - K &E 14795948. Ray C. Schrock KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 -6636 Telephone: (312) 861 -2000 Facsimile: (312) 861 -2200 Proposed Counsel to the Debtors and Debtors in Possession -and- Albert Togut Frank A. Oswald TOGUT, SEGAL & SEGAL LLP One Penn Plaza New York, New York 10119 Telephone: (212) 594 -5000 Facsimile: (212) 967 -4258 Proposed Counsel to Debtor Charter Investment, Inc. EXHIBIT A Proposed Interim Order K &6 14195949. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: ) Chapter 1 I CHARTER COMMUNICATIONS, INC., et al., ) Case No. 09- Debtors. ) Joint Administration Requested INTERIM ORDER (A) AUTHORIZING, BUT NOT DIRECTING, THE DEBTORS TO REMIT AND PAY CERTAIN TAXES AND FEES AND (B) AUTHORIZING AND DIRECTING BANKS AND OTHER FINANCIAL INSTITUTIONS TO HONOR RELATED CHECKS AND ELECTRONIC PAYMENT REQUESTS Upon the motion (the "Motion ")t of the above - captioned debtors (collectively, the "Debtors ")z for the entry of an interim order (the "Order ") (a) authorizing, but not directing, the I Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion. The Debtors in these cases include: Ausable Cable TV, Inc.; Hometown TV, Inc.; Plattsburgh Cablevision, Inc.; Charter Communications Entertainment 1, LLC; Falcon First Cable of New York, Inc.; Charter Communications, Inc.; Charter Communications Holding Company, LLC; CCHC, LLC; Charter Communications Holdings, LLC; CCH I Holdings, LLC; CCH I, LLC; CCH II, LLC; CCO Holdings, LLC; Charter Communications Operating, LLC; American Cable Entertainment Company, LLC; Athens Cablevision, Inc.; Cable Equities Colorado, LLC; Cable Equities of Colorado Management Corp.; CC 10, LLC; CC Fiberlink, LLC; CC Michigan, LLC; CC Systems, LLC; CC V Holdings, LLC; CC VI Fiberlink, LLC; CC VI Operating, LLC; CC VII Fiberlink, LLC; CC VIII Fiberlink, LLC; CC VIII Holdings, LLC; CC VIII Leasing of Wisconsin, LLC; CC VIII Operating, LLC; CC VIII, LLC; CCH I Capital Corp.; CCH I Holdings Capital Corp.; CCH II Capital Corp.; CCO Fiberlink, LLC; CCO Holdings Capital Corp.; CCO NR Holdings, LLC; CCO Purchasing, LLC; Charter Advertising of Saint Louis, LLC; Charter Cable Leasing of Wisconsin, LLC; Charter Cable Operating Company, L.L.C.; Charter Cable Partners, L.L.C.; Charter Communications Entertainment, LLC; Charter Communications Entertainment 1, DST; Charter Communications Entertainment II, LLC; Charter Communications Holdings Capital Corporation; Charter Communications Operating Capital Corp.; Charter Communications Properties LLC; Charter Communications V, LLC; Charter Communications Ventures, LLC; Charter Communications VI, LLC; Charter Communications VII, LLC; Charter Communications, LLC; Charter Distribution, LLC; Charter Fiberlink — Alabama, LLC; Charter Fiberlink AR- CCVII, LLC; Charter Fiberlink AZ -CCVII, LLC; Charter Fiberlink CA -CCO, LLC; Charter Fiberlink CA- CCVII, LLC; Charter Fiberlink CC VIII, LLC; Charter Fiberlink CCO, LLC; Charter Fiberlink CT -CCO, LLC; Charter Fiberlink— Georgia, LLC; Charter Fiberlink ID- CCVII, LLC; Charter Fiberlink— Illinois, LLC; Charter Fiberlink IN -CCO, LLC; Charter Fiberlink KS -CCO, LLC; Charter Fiberlink LA -CCO, LLC; Charter Fiberlink MA -CCO, LLC; Charter Fiberlink — Michigan, LLC; Charter Fiberlink — Missouri, LLC; Charter Fiberlink MS- CCVI, LLC; Charter Fiberlink NC -CCO, LLC; Charter Fiberlink NC- CCVII, LLC; Charter Fiberlink — Nebraska, LLC; Charter Fiberlink NH -CCO, LLC; Charter Fiberlink NM -CCO, LLC; Charter Fiberlink NV- CCVII, LLC; Charter Fiberlink NY -CCO, LLC; Charter Fiberlink NY- CCVII, LLC; Charter Fiberlink OH- CCO, LLC; Charter Fiberlink OK- CCVII, LLC; Charter Fiberlink OR- CCVII, LLC; Charter Fiberlink SC- CCO, LLC; Charter Fiberlink SC- CCVII, LLC; Charter Fiberlink — Tennessee, LLC; Charter Fiberlink TX- K &E 14395948. Debtors to remit and pay certain sales, use, franchise, and other taxes, as well as fees for licenses, permits, and other similar charges and assessments and (b) authorizing and directing banks and other financial institutions to receive, process, honor, and pay checks presented for payment and electronic payment requests relating to the foregoing; and upon the First Day Declaration; it appearing* that the relief requested is in the best interests of the Debtors' estates, their creditors and other parties in interest and that the relief requested is necessary to avoid immediate and irreparable harm; the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. § §'157 and 1334; consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. § 157(b); venue being proper before this court pursuant to 28 U.S.C. §§ 1408 and 1409; notice of the Motion having been adequate and appropriate under the circumstances; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED 1. The Motion is granted as set forth herein on an interim basis. 2. A final hearing shall be held on , 2009 at _ _ a.m. /p.m. prevailing Eastern Time (the "Final Hearing "). Any objections or responses to the Motion shall be filed on or before _ business days prior to the Final Hearing and served in accordance with applicable law. CCO, LLC; Charter Fiberlink UT- CCVII, LLC; Charter Fiberlink VA -CCO, LLC; Charter Fiberlink VT -CCO, LLC; Charter Fiberlink WA- CCVII, LLC; Charter Fiberlink— Wisconsin, LLC; Charter Fiberlink WV -CCO, LLC; Charter Fiberlink, LLC; Charter Gateway, LLC; Charter Helicon, LLC; Charter Investment, Inc.; Charter RMG, LLC; Charter Stores FCN, LLC; Charter Video Electronics, Inc.; Dalton Cablevision, Inc.; Enstar Communications Corporation; Falcon Cable Communications, LLC; Falcon Cable Media, a California Limited Partnership; Falcon Cable Systems Company II, L.P.; Falcon Cablevision, a California Limited Partnership; Falcon Community Cable, L.P.; Falcon Community Ventures 1, LP; Falcon First Cable of the Southeast, Inc.; Falcon First, Inc.; Falcon Telecable, a California Limited Partnership; Falcon Video Communications, L.P.; Helicon Partners I, L.P.; HPI Acquisition Co., L.L.C.; Interlink Communications Partners, LLC; Long Beach, LLC; Marcus Cable Associates, L.L.C.; Marcus Cable of Alabama, L.L.C.; Marcus Cable, Inc.; Midwest Cable Communications, Inc.; Peachtree Cable TV, L.P.; Peachtree Cable T.V., LLC; Renaissance Media LLC; Rifkin Acquisition Partners, LLC; Robin Media Group, Inc.; Scottsboro TV Cable, Inc.; Tennessee, LLC; The Helicon Group, L.P.; Tioga Cable Company, Inc.; and Vista Broadband Communications, LLC. 2 K &E 14395948, 3. Subject to a final order on this Motion, the Debtors are authorized, but not required, to pay and remit to various taxing, licensing and regulatory Authorities3 (a) taxes, including, but not limited to, sales, use, franchise and other taxes incurred or collected by the Debtors from their customers on behalf of the Authorities (collectively, the "Taxes ") and (b) fees, licenses, permits and other similar charges and assessments incurred by the Debtors (collectively, the "Fees ") in an amount equal to approximately $4,300,000 that will become due and payable during the period from the date of this Order until the date that a final order is entered in the matter. 4. Nothing in the Motion or this Order, nor as a result of the Debtors' payment of claims pursuant to this Order, shall be deemed or construed as: (a) an admission as to the validity or priority of any claim against the Debtors; (b) a waiver of the Debtors' rights to dispute any claim; or (c) an approval or assumption of any agreement, contract or lease pursuant to section 365 of the Bankruptcy Code. 5. The Debtors do not concede that any liens (contractual, common law, statutory, or otherwise) described in this Motion are valid, and the Debtors expressly reserve the right to contest the extent, validity, or perfection or seek the avoidance of all such liens. 6. The banks and financial institutions on which checks were drawn or electronic payment requests made in payment of the prepetition obligations approved herein are authorized and directed to receive, process, honor and pay all such checks and electronic payment requests when presented for payment, and that all such banks and financial institutions are authorized to 3 Because the list of thousands of Authorities is too voluminous to include in this Order, a comprehensive list of the individual Authorities can be obtained at www.kccllc.net/Charter or by contacting Albert Kass at KCC via email at akass @kccllc.com or by phone at (310) 776 -7360. 3 K &E 14395948. rely on the Debtors' designation of any particular check or electronic payment request as approved by this Order. 7. The Debtors are authorized to reissue. any check or electronic payment that originally was given in payment of any prepetition amount authorized to be paid under this Order and is not cleared by the applicable bank or other financial institution. 8. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion. 9. Notwithstanding the possible applicability of Bankruptcy Rules 6004(h), 7062, 9014 or otherwise, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 10. The requirements set forth in Bankruptcy Rule 6003(b) are satisfied by the contents of the Motion or otherwise deemed waived. 11. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. New York, New York Date: 1 1, 2009 0 K &E 14395948. United States Bankruptcy Judge EXHIBIT B Proposed Final Order K &E 14395948. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: ) Chapter 11 CHARTER COMMUNICATIONS, INC., et al., ) Case No. 09- Debtors. ) Joint Administration Requested FINAL ORDER (A) AUTHORIZING, BUT NOT DIRECTING, THE DEBTORS TO REMIT AND PAY CERTAIN TAXES AND FEES AND (B) AUTHORIZING AND DIRECTING BANKS AND OTHER FINANCIAL INSTITUTIONS TO HONOR RELATED CHECKS AND ELECTRONIC PAYMENT REQUESTS Upon the motion (the "Motion")' of the above - captioned debtors (collectively, the "Debtors" )z for the entry of an order (the "Order ") (a) authorizing, but not directing, the Debtors I Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion. The Debtors in these cases include: Ausable Cable TV, Inc.; Hometown TV, Inc.; Plattsburgh Cablevision, Inc.; Charter Communications Entertainment I, LLC; Falcon First Cable of New York, Inc.; Charter Communications, Inc.; Charter Communications Holding Company, LLC; CCHC, LLC; Charter Communications Holdings, LLC; CCH I Holdings, LLC; CCH I, LLC; CCH 11, LLC; CCO Holdings, LLC; Charter Communications Operating, LLC; American Cable Entertainment Company, LLC; Athens Cablevision, Inc.; Cable Equities Colorado, LLC; Cable Equities of Colorado Management Corp.; CC 10, LLC; CC Fiberlink, LLC; CC Michigan, LLC; CC Systems, LLC; CC V Holdings, LLC; CC VI Fiberlink, LLC; CC VI Operating, LLC; CC VII Fiberlink, LLC; CC VIII Fiberlink, LLC; CC Vill Holdings, LLC; CC VIII Leasing of Wisconsin, LLC; CC VIII Operating, LLC; CC Vill, LLC; CCH I Capital Corp.; CCH I Holdings Capital Corp.; CCH 11 Capital Corp.; CCO Fiberlink, LLC; CCO Holdings Capital Corp.; CCO NR Holdings, LLC; CCO Purchasing, LLC; Charter Advertising of Saint Louis, LLC; Charter Cable Leasing of Wisconsin, LLC; Charter Cable Operating Company, L.L.C.; Charter Cable Partners, L.L.C.; Charter Communications Entertainment, LLC; Charter Communications Entertainment 1, DST; Charter Communications Entertainment 11, LLC; Charter Communications Holdings Capital Corporation; Charter Communications Operating Capital Corp.; Charter Communications Properties LLC; Charter Communications V, LLC; Charter Communications Ventures, LLC; Charter Communications VI, LLC; Charter Communications VII, LLC; Charter Communications, LLC; Charter Distribution, LLC; Charter Fiberlink — Alabama, LLC; Charter Fiberlink AR- CCVII, LLC; Charter Fiberlink AZ- CCVII, LLC; Charter Fiberlink CA -CCO, LLC; Charter Fiberlink CA- CCVII, LLC; Charter Fiberlink CC VIII, LLC; Charier Fiberlink CCO, LLC; Charter Fiberlink CT -CCO, LLC; Charter Fiberlink — Georgia, LLC; Charter Fiberlink ID- CCVII, LLC; Charter Fiberlink — Illinois, LLC; Charter Fiberlink IN -CCO, LLC; Charter Fiberlink KS -CCO, LLC; Charter Fiberlink LA -CCO, LLC; Charter Fiberlink MA -CCO, LLC; Charter Fiberlink — Michigan, LLC; Charter Fiberlink— Missouri, LLC; Charter Fiberlink MS- CCVI, LLC; Charter Fiberlink NC -CCO, LLC; Charter Fiberlink NC- CCVII, LLC; Charter Fiberlink — Nebraska, LLC; Charter Fiberlink NH -CCO, LLC; Charter Fiberlink NM -CCO, LLC; Charter Fiberlink NV- CCVII, LLC; Charter Fiberlink NY -CCO, LLC; Charter Fiberlink NY- CCVII, LLC; Charter Fiberlink OH- CCO, LLC; Charter Fiberlink OK- CCVII, LLC; Charter Fiberlink OR- CCVII, LLC; Charter Fiberlink SC- CCO, LLC; Charter Fiberlink SC- CCVII, LLC; Charter Fiberlink — Tennessee, LLC; Charter Fiberlink TX- K &E 14395948. to remit and pay certain sales, use, franchise, and other taxes, as well as fees for licenses, permits, and other similar charges and assessments and (b) authorizing and directing banks and other financial institutions to receive, process, honor, and pay checks presented for payment and electronic payment requests relating to the foregoing; and upon the First Day Declaration; it appearing that the relief requested is in the best interests of the Debtors' estates, their creditors and other parties in interest and that the relief requested is necessary to avoid immediate and irreparable harm; the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334; consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. § 157(b); venue being proper before this court pursuant to 28 U.S.C. §§ 1408 and 1409; notice of the Motion having been adequate and appropriate under the circumstances; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED 1. The Motion is granted as set forth herein on a final basis. 2. The Debtors are authorized, but not required, to pay and remit to various taxing, licensing and regulatory Authorities; (a) taxes, including, but not limited to, sales, use, franchise CCO, LLC; Charter Fiberlink UT- CCVIl, LLC; Charter Fiberlink VA -CCO, LLC; Charter Fiberlink VT -CCO, LLC; Charter Fiberlink WA- CCVII, LLC; Charter Fiberlink— Wisconsin, LLC; Charter Fiberlink WV -CCO, LLC; Charter Fiberlink, LLC; Charter Gateway, LLC; Charter Helicon, LLC; Charter Investment, Inc.; Charter RMG, LLC; Charter Stores FCN, LLC; Charter Video Electronics, Inc.; Dalton Cablevision, Inc.; Enslar Communications Corporation; Falcon Cable Communications, LLC; Falcon Cable Media, a California Limited Partnership; Falcon Cable Systems Company II, L.P.; Falcon Cablevision, a California Limited Partnership; Falcon Community Cable, L.P.; Falcon Community Ventures 1, LP; Falcon First Cable of the Southeast, Inc.; Falcon First, Inc.; Falcon Telecable, a California Limited Partnership; Falcon Video Communications, L.P.; Helicon Partners I, L.P.; HPI Acquisition Co., L.L.C.; Interlink Communications Partners, LLC; Long Beach, LLC; Marcus Cable Associates, L.L.C.; Marcus Cable of Alabama, L.L.C.; Marcus Cable, Inc.; Midwest Cable Communications, Inc.; Peachtree Cable TV, L.P.; Peachtree Cable T.V, LLC; Renaissance Media LLC; Rifkin Acquisition Partners, LLC; Robin Media Group, Inc.; Scottsboro TV Cable, Inc.; Tennessee, LLC; The Helicon Group, L.P.; Tioga Cable Company, Inc.; and Vista Broadband Communications, LLC. 3 Because the list of thousands of Authorities is too voluminous to include in this Order, a comprehensive list of the individual Authorities can be obtained at www.kccllc.neUCharter or by contacting Albert Kass at KCC via email at akass @kccllc.com or by phone at (310) 776 -7360. 2 K &E 14395948. and other taxes incurred or collected by the Debtors from their customers on behalf of the Authorities (collectively, the "Taxes ") and (b) fees, licenses, permits and other similar charges and assessments incurred by the Debtors (collectively, the "Fees "), without regard to whether such Taxes or Fees accrued or arose before or after the Petition Date. 3. Nothing in the Motion or this Order, nor as a result of the Debtors' payment of claims pursuant to this Order, shall be deemed or construed as: (a) an admission as to the validity or priority of any claim against the Debtors; (b) a waiver of the Debtors' rights to dispute any claim; or (c) an approval or assumption of any agreement, contract or lease pursuant to section 365 of the Bankruptcy Code. 4. The Debtors do not concede that any liens (contractual, common law, statutory, or otherwise) described in this Motion are valid, and the Debtors expressly reserve the right to contest the extent, validity, or perfection or seek the avoidance of all such liens. 5. The banks and financial institutions on which checks were drawn or electronic payment requests made in payment of the prepetition obligations approved herein are authorized and directed to receive, process, honor and pay all such checks and electronic payment requests when presented for payment, and that all such banks and financial institutions are authorized to rely on the Debtors' designation of any particular check or electronic payment request as approved by this Order. 6. The Debtors are authorized to reissue any check or electronic payment that originally was given in payment of any prepetition amount authorized to be paid under this Order and is not cleared by the applicable bank or other financial institution. 7. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion. 3 K &E 14395948. 8. Notwithstanding the possible applicability of Bankruptcy Rules 6004(h), 7062, 9014 or otherwise, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 9. The requirements set forth in Bankruptcy Rule 6003(b) are satisfied by the contents of the Motion or otherwise deemed waived. 10. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. New York, New York Date: [__J, 2009 0 K &E 14395949. United States Bankruptcy Judge 4 Richard M. Cieri Paul M. Basta Stephen E. Hessler KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4611 Telephone: (212) 446 -4800 Facsimile: (212) 446 -4900 -and- Ray C. Schrock KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 -6636 Telephone: (312) 861 -2000 Facsimile: (312) 861 -2200 Proposed Counsel to the Debtors and Debtors in Possession (other than Charter Investment, Inc.) -and - Albert Togut Frank A. Oswald TOGUT, SEGAL & SEGAL LLP One Penn Plaza New York, New York 10119 Telephone: (212) 594 -5000 Facsimile: (212) 967 -4258 Proposed Counsel to Debtor and Debtor in Possession Charter Investment, Inc. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: ) Chapter 11 CHARTER COMMUNICATIONS, INC., et al., ) Case No. 09 -11435 Debtors. ) Joint Administration Requested AGENDA FOR MARCH 30, 2009 HEARING K &E 13953914. PRF12756 -2 Time and Date of Hearing: Monday, March 30, 2009 at 10:00 a.m. (Prevailing Eastern Time) Location of Hearing: The Honorable James M. Peck, Bankruptcy Judge, United States Bankruptcy Court for the Southern District of New York, Alexander Hamilton Custom House, One Bowling Green, Courtroom 601, New York, New York 10004 -1408 Copies of Motions: A copy of each pleading can be viewed on the Court's website at www.ecf.nysb.uscourts.gov and at the website of the Debtors" proposed notice, claims and balloting agent, www.kccllc.net/charter The Debtors in these cases include: Ausable Cable TV, Inc.; Hometown TV, Inc.; Plattsburgh Cablevision, Inc.; Charter Communications Entertainment 1, LLC; Falcon First Cable of New York, Inc.; Charter Communications, Inc.; Charter Communications Holding Company, LLC; CCHC, LLC; Charter Communications Holdings, LLC; CCH I Holdings, LLC; CCH I, LLC; CCH II, LLC; CCO Holdings, LLC; Charter Communications Operating, LLC; American Cable Entertainment Company, LLC; Athens Cablevision, Inc.; Cable Equities Colorado, LLC; Cable Equities of Colorado Management Corp.; CC 10, LLC; CC Fiberlink, LLC; CC Michigan, LLC; CC Systems, LLC; CC V Holdings, LLC; CC VI Fiberlink, LLC; CC VI Operating, LLC; CC VII Fiberlink, LLC; CC VIII Fiberlink, LLC; CC VIII Holdings, LLC; CC VIII Leasing of Wisconsin, LLC; CC VIII Operating, LLC; CC VIII, LLC; CCH I Capital Corp.; CCH I Holdings Capital Corp.; CCH II Capital Corp.; CCO Fiberlink, LLC; CCO Holdings Capital Corp.; CCO NR Holdings, LLC; CCO Purchasing, LLC; Charter Advertising of Saint Louis, LLC; Charter Cable Leasing of Wisconsin, LLC; Charter Cable Operating Company, L.L.C.; Charter Cable Partners, L.L.C.; Charter Communications Entertainment, LLC; Charter Communications Entertainment I, DST; Charter Communications Entertainment II, LLC; Charter Communications Holdings Capital Corporation; Charter Communications Operating Capital Corp.; Charter Communications Properties LLC; Charter Communications V, LLC; Charter Communications Ventures, LLC; Charter Communications VI, LLC; Charter Communications VII, LLC; Charter Communications, LLC; Charter Distribution, LLC; Charter Fiberlink — Alabama, LLC; Charter Fiberlink AR- CCVII, LLC; Charter Fiberlink AZ- CCVII, LLC; Charier Fiberlink CA -CCO, LLC; Charter Fiberlink CA- CCVII, LLC; Charter Fiberlink CC VIII, LLC; Charter Fiberlink CCO, LLC; Charter Fiberlink CT -CCO, LLC; Charter Fiberlink — Georgia, LLC; Charter Fiberlink ID- CCVII, LLC; Charter Fiberlink — Illinois, LLC; Charter Fiberlink IN -CCO, LLC; Charter Fiberlink KS -CCO, LLC; Charter Fiberlink LA -CCO, LLC; Charter Fiberlink MA -CCO, LLC; Charter Fiberlink — Michigan, LLC; Charter Fiberlink — Missouri, LLC; Charter Fiberlink MS- CCVI, LLC; Charter, Fiberlink NC -CCO, LLC; Charter Fiberlink NC -CCVQ, LLC; Charter Fiberlink — Nebraska, LLC; Charter Fiberlink NH -CCO, LLC; Charter Fiberlink NM -CCO, LLC; Charter Fiberlink NV- CCVII, LLC; Charter Fiberlink NY -CCO, LLC; Charter Fiberlink NY- CCVII, LLC; Charter Fiberlink OH- CCO, LLC; Charter Fiberlink OK- CCVII, LLC; Charter Fiberlink OR- CCVII, LLC; Charter Fiberlink SC- CCO, LLC; Charter Fiberlink SC- CCVII, LLC; Charter Fiberlink — Tennessee, LLC; Charter Fiberlink TX- CCO, LLC; Charter Fiberlink UT- CCVII, LLC; Charter Fiberlink VA -CCO, LLC; Charter Fiberlink VT -CCO, LLC; Charter Fiberlink WA- CCVII, LLC; Charter. Fiberlink— Wisconsin, LLC; Charter Fiberlink WV -CCO, LLC; Charter Fiberlink, LLC; Charter Gateway, LLC; Charter Helicon, LLC; Charter Investment, Inc.; Charter RMG, LLC; Charter Stores FCN, LLC; Charter Video Electronics, Inc.; Dalton Cablevision, Inc.; Enstar Communications Corporation; Falcon Cable Communications, LLC; Falcon Cable Media, a California Limited Partnership; Falcon Cable Systems Company II, L.P.; Falcon Cablevision, a California Limited Partnership; Falcon Community Cable, L.P.; Falcon Community Ventures 1, LP; Falcon First Cable of the Southeast, Inc.; Falcon First, Inc.; Falcon Telecable, a California Limited Partnership; Falcon Video Communications, L.P.; Helicon Partners I, L.P.; HPI Acquisition Co., L.L.C.; Inlerlink Communications Partners, LLC; Long Beach, LLC; Marcus Cable Associates, L.L.C.; Marcus Cable of Alabama, L.L.C.; Marcus Cable, Inc.; Midwest Cable Communications, Inc.; Peachtree Cable TV, L.P.; Peachtree Cable T.V., LLC; Renaissance Media LLC; Rifkin 2 K &E 13953914. I. Introduction and Request for First Day Hearing "Introduction" - Paul M. Basta, Partner, Kirkland & Ellis LLP a. "Doody Declaration" - Declaration of Gregory L. Doody, Chief Restructuring Officer and Senior Counsel of Charter Communications, Inc., in Support of First Day Pleadings b. "Informational Brief" - Debtors' Memorandum on Reinstatement in Support of Approval of Disclosure Statement II. Motions to Be Heard at the First Day Hearing A. Procedural Motions 1. "Joint Administration" - Debtors' Motion for Entry of an Order Directing Joint Administration of Related Chapter I 1 Cases 2. "Case Management Procedures" - Debtors' Motion for Entry of an Order Establishing Certain Notice, Case Management and Administrative Procedures 3. "Kurtzman Carson Consultants LLC Retention" - Debtors' Application for Entry of an Order Authorizing and Approving the Retention of Kurtzman Carson Consultants LLC as Notice and Claims Agent for the Debtors B. Financing Motions 1. "Cash Collateral" - Debtors' Motion for Entry of Interim and Final Orders (I) Authorizing Debtors to Use Cash Collateral, (II) Granting Adequate Protection to Adequate Protection Parties and (III) Scheduling a Final Hearing -- Interim Relief 2. "Surety Bonds" - Debtors' Motion for Entry of Interim and Final Orders Authorizing Debtors to Enter Into DIP Surety Bond Program -- Interim Relief 3. "Cash Management" - Debtors' Motion for Entry of Interim and Final Orders (A) Authorizing, But Not Directing, the Debtors to Continue Their Existing Cash Management System, Bank Accounts and Business Forms, (B) Granting Postpetition Intercompany Claims Administrative Expense Priority, (C) Authorizing Continued Investment of Excess Funds in Investment Accounts and (D) Authorizing Continued Intercompany Arrangements and Historical Practices -- Interim Relief Acquisition Partners, LLC; Robin Media Group, Inc.; Scottsboro TV Cable, Inc.; Tennessee, LLC; The Helicon Group, L.P.; Tioga Cable Company, Inc.; and Vista Broadband Communications, LLC. 3 K &E 13953914. 4. "NOLs" - Debtors' Motion for Entry of Interim and Final Orders Establishing Notification and Hearing Procedures for Transfers of Common Stock -- Interim Relief C. Operational Motions 1. "Wages and Benefits" - Debtors' Motion for Entry of Interim and Final Orders Authorizing, But Not Directing, the Debtors to (A) Pay Certain Prepetition Compensation and Reimbursable Employee Expenses, (B) Pay and Honor Employee Medical and Other Benefits and (C) Continue Employee Wages and Benefits Programs -- Interim Relief 2. "Shippers /Lien Claimants" - Debtors' Motion for Entry of Interim and Final Orders Authorizing, But Not Directing, Debtors to Pay Prepetition Claims of Shippers, Warehousemen and Miscellaneous Lien Claimants -- Interim Relief 3. "Customer Programs" - Debtors' Motion for Entry of an Order Authorizing, But Not Directing, Debtors to Honor Certain Prepetition Obligations to Customers and to Otherwise Continue Certain Customer Programs and Practices in the Ordinary Course of Business 4. "Insurance" - Debtors' Motion for Entry of Interim and Final Orders Authorizing, But Not Directing, Debtors to (A) Maintain Prepetition Insurance Policies, (B) Enter Into New Insurance Policies, (C) Maintain Premium Financing Agreements and (D) Enter Into New Premium Financing Agreements -- Interim Relief 5. "Taxes" - Debtors' Motion for Entry of Interim and Final Orders (A) Authorizing, But Not Directing, the Debtors to Remit and Pay Certain Taxes and Fees and (B) Authorizing and Directing Banks and Other Financial Institutions to Honor Related Checks and Electronic Payment Requests -- Interim Relief III. Matter the Debtors Request that the Court Hear Shortly After the First Day Hearing 1. "Scheduling" - Joint Motion for Scheduling Conference IV. Matters the Debtors Request that the Court Hear at the First Scheduled Omnibus Hearing A. Retention Applications 1. "K &E Retention" - Debtors' Application for Entry of an Order Authorizing the Employment and Retention of Kirkland & Ellis LLP as Attorneys for the Debtors and Debtors In Possession Effective Nunc Pro Tunc to the Petition Date 1, K &E 13953914. 2. "AlixPartners Retention" - Debtors' Application for Entry of an Order Authorizing the Employment and Retention of AlixPartners, LLP as Their Restructuring Advisor Nunc Pro Tune to the Petition Date 3. "Curtis, Mallet- Prevost Retention" - Debtors' Application for an Order Authorizing the Employment and Retention of Curtis, Mallet- Prevost, Colt & Mosle LLP as Conflicts Counsel for the Debtors, Nunc Pro Tune to the Petition Date 4. "Friend Hudak Retention" - Debtors' Application for Entry of an Order Authorizing the Employment and Retention of Friend Hudak and Harris, LLP as Special Telecommunications Counsel to the Debtors 5. "Duff & Phelps Retention" - Debtors' Application for an Order Authorizing the Employment and Retention of Duff & Phelps, LLC as Valuation Consultants for the Debtors and Debtors In Possession Nunc Pro Tune to the Petition Date B. Motions 1. "Utilities" - Debtors' Motion for Entry of an Order Determining Adequate Assurance of Payment for Future Utility Services 2. "OCP" - Debtors' Motion for Entry of an Order Authorizing the Retention and Compensation of Certain Professionals Utilized in the Ordinary Course of Business 3. "Interim Compensation" - Debtors' Motion for Entry of an Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses for Professionals 4. "De Minimis Asset Sale Procedures" - Debtors' Motion for Entry of an Order Approving Procedures for the Sale, Transfer or Abandonment of De Minimis Assets 5. "All Trade" - Debtors' Motion for Entry of an Order Authorizing Payment of Prepetition Claims of Trade Creditors in the Ordinary Course of Business 6. "Second Lien" - Debtors' Motion for Entry of an Order Granting Adequate Protection to Second Lien Secured Parties V. Matter the Debtors Request that the Court Hear Approximately 30 Days After the Petition Date 1. "Disclosure Statement" - Debtors' Motion for an Order (I) Approving the Disclosure Statement, (li) Establishing a Record Date for Voting on the Plan of Reorganization and the Rights Offering, (III) Approving 5 K &E 13953914. Solicitation Packages and Procedures for the Distribution Thereof, (IV) Approving the Rights Offering Procedures and Rights Exercise Form, (V) Approving the Forms of Ballots and Manner of Notice, (VI) Approving the Commitment Agreements, (VII) Approving the Commitment Fees, (VIII) Establishing Procedures for Voting on the Plan and (IX) Establishing Notice and Objection Procedures for Confirmation of the Plan New York, New York /s/ Paul M. Basta Dated: March 27, 2009 Richard M. Cieri Paul M. Basta Stephen E. Hessler KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 -4611 Telephone: (212) 446 -4800 Facsimile: (212) 446 -4900 and - Ray C. Schrock KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 -6636 Telephone: (312) 861 -2000 Facsimile: (312) 861 -2200 Proposed Counsel to the Debtors and Debtors in Possession (other than Charter Investment, Inc.) - and - Albert Togut Frank A. Oswald TOGUT, SEGAL & SEGAL LLP One Penn Plaza New York, New York 10119 Telephone: (212) 594 -5000 Facsimile: (212) 967 -4258 Proposed Counsel to Debtor and Debtor in Possession Charter Investment, Inc. K &E 13953914. ,y Richard M. Cieri Paul M. Basta Stephen E. Hessler KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022-4611 Telephone: (212) 446 -4800 Facsimile: (212) 446 -4900 -and- Ray C. Schrock KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 -6636 Telephone: (312) 861 -2000 Facsimile: (312) 861 -2200 MAR 3 0 2009 CITY CLERK'S OFFICE BY Proposed Counsel to the Debtors and Debtors in Possession (other than Charter Investment, Inc.) - and - Albert Togut Frank A. Oswald TOGUT, SEGAL & SEGAL LLP One Penn Plaza New York, New York 10119 Telephone: (212) 594 -5000 Facsimile: (212) 967 -4258 Proposed Counsel to Debtor and Debtor in Possession Charter Investment, Inc. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: ) Chapter 11 CHARTER COMMUNICATIONS, INC., et al., ) Case No. 09 -11435 Debtors. ) Joint Administration Requested AGENDA FOR MARCH 30, 2009 HEARING K &E 13953914. PRF 12756 -2 Time and Date of Hearing: Monday, March 30, 2009 at 10:00 a.m. (Prevailing Eastern Time) Location of Hearing: The Honorable James M. Peck, Bankruptcy Judge, United States Bankruptcy Court for the Southern District of New York, Alexander Hamilton Custom House, One Bowling Green, Courtroom 601, New York, New York 10004 -1408 Copies of Motions: A copy of each pleading can be viewed on the Court's website at www.ecf.nysb.uscourts.gov and at the website of the Debtors'[ proposed notice, claims and balloting agent, www.kccllc.net/charter The Debtors in these cases include: Ausable Cable TV, Inc.; Hometown TV, Inc.; Plattsburgh Cablevision, Inc.; Charter Communications Entertainment I, LLC; Falcon First Cable of New York, Inc.; Charter Communications, Inc.; Charter Communications Holding Company, LLC; CCHC, LLC; Charter Communications Holdings, LLC; CCH I Holdings, LLC; CCH I, LLC; CCH 11, LLC; CCO Holdings, LLC; Charter Communications Operating, LLC; American Cable Entertainment Company, LLC; Athens Cablevision, Inc.; Cable Equities Colorado, LLC; Cable Equities of Colorado Management Corp.; CC 10, LLC; CC Fiberlink, LLC; CC Michigan, LLC; CC Systems, LLC; CC V Holdings, LLC; CC VI Fiberlink, LLC; CC VI Operating, LLC; CC VII Fiberlink, LLC; CC VIII Fiberlink, LLC; CC VIII Holdings, LLC; CC VIII Leasing of Wisconsin, LLC; CC VIII Operating, LLC; CC VIII, LLC; CCH I Capital Corp.; CCH I Holdings Capital Corp.; CCH II Capital Corp.; CCO Fiberlink, LLC; CCO Holdings Capital Corp.; CCO NR Holdings, LLC; CCO Purchasing, LLC; Charter Advertising of Saint Louis, LLC; Charter Cable Leasing of Wisconsin, LLC; Charter Cable Operating Company, L.L.C.; Charter Cable Partners, L.L.C.; Charter Communications Entertainment, LLC; Charter Communications Entertainment I, DST; Charter Communications Entertainment 11, LLC; Charter Communications Holdings Capital Corporation; Charter Communications Operating Capital Corp.; Charter Communications Properties LLC; Charter Communications V, LLC; Charter Communications Ventures, LLC; Charter Communications VI, LLC; Charter Communications VII, LLC; Charter Communications, LLC; Charter Distribution, LLC; Charter Fiberlink — Alabama, LLC; Charter Fiberlink AR- CCVII, LLC; Charter Fiberlink AZ -CCVII, LLC; Charter Fiberlink CA -CCO, LLC; Charter Fiberlink CA- CCVII, LLC; Charter Fiberlink CC VIII, LLC; Charter Fiberlink CCO, LLC; Charter Fiberlink CT -CCO, LLC; Charter Fiberlink— Georgia, LLC; Charter Fiberlink ID- CCVII, LLC; Charter Fiberlink — Illinois, LLC; Charter Fiberlink IN -CCO, LLC; Charter Fiberlink KS -CCO, LLC; Charter Fiberlink LA -CCO, LLC; Charter Fiberlink MA -CCO, LLC; Charter Fiberlink — Michigan, LLC; Charter Fiberlink — Missouri, LLC; Charter Fiberlink MS- CCVI, LLC; Charter Fiberlink NC -CCO, LLC; Charter Fiberlink NC -CCVII, LLC; Charter Fiberlink — Nebraska, LLC; Charter Fiberlink NH -CCO, LLC; Charter Fiberlink NM -CCO, LLC; Charter Fiberlink NV- CCVII, LLC; Charter Fiberlink NY -CCO, LLC; Charter Fiberlink NY- CCVII, LLC; Charter Fiberlink OH- CCO, LLC; Charter Fiberlink OK- CCVII, LLC; Charter Fiberlink OR- CCVII, LLC; Charter Fiberlink SC- CCO, LLC; Charter Fiberlink SC- CCVII, LLC; Charter Fiberlink — Tennessee, LLC; Charter Fiberlink TX- CCO, LLC; Charter Fiberlink UT- CCVII, LLC; Charter Fiberlink VA -CCO, LLC; Charter Fiberlink VT -CCO, LLC; Charter Fiberlink WA- CCVII, LLC; Charter Fiberlink— Wisconsin, LLC; Charter Fiberlink WV -CCO, LLC; Charter Fiberlink, LLC; Charter Gateway, LLC; Charter Helicon, LLC; Charter Investment, Inc.; Charter RMG, LLC; Charter Stores FCN, LLC; Charter Video Electronics, Inc.; Dalton Cablevision, Inc.; Enstar Communications Corporation; Falcon Cable Communications, LLC; Falcon Cable Media, a California Limited Partnership; Falcon Cable Systems Company 11, L.P.; Falcon Cablevision, a California Limited Partnership; Falcon Community Cable, L.P.; Falcon Community Ventures 1, LP; Falcon First Cable of the Southeast, Inc.; Falcon First, Inc.; Falcon Telecable, a California Limited Partnership; Falcon Video Communications, L.P.; Helicon Partners I, L.P.; HPI Acquisition Co., L.L.C.; Interlink Communications Partners, LLC; Long Beach, LLC; Marcus Cable Associates, L.L.C.; Marcus Cable of Alabama, L.L.C.; Marcus Cable, Inc.; Midwest Cable Communications, Inc.; Peachtree Cable TV, L.P.; Peachtree Cable T.V, LLC; Renaissance Media LLC; Rifkin 2 K &E 13953914. I. Introduction and Request for First Day Hearing 1. "Introduction" - Paul M. Basta, Partner, Kirkland & Ellis LLP a. "Doody Declaration' - Declaration of Gregory L. Doody, Chief Restructuring Officer and Senior Counsel of Charter Communications, Inc., in Support of First Day Pleadings b. "Informational Brief" - Debtors' Memorandum on Reinstatement in Support of Approval of Disclosure Statement II. Motions to Be Heard at the First Day Hearing A. Procedural Motions 1. "Joint Administration" - Debtors' Motion for Entry of an Order Directing Joint Administration of Related Chapter 1 I Cases 2. "Case Management Procedures" - Debtors' Motion for Entry of an Order Establishing Certain Notice, Case Management and Administrative Procedures 3. "Kurtzman Carson Consultants LLC Retention" - Debtors' Application for Entry of an Order Authorizing and Approving the Retention of Kurtzman Carson Consultants LLC as Notice and Claims Agent for the Debtors B. Financing Motions 1. "Cash Collateral" - Debtors' Motion for Entry of Interim and Final Orders (I) Authorizing Debtors to Use Cash Collateral, (11) Granting Adequate Protection to Adequate Protection Parties and (III) Scheduling a Final Hearing -- Interim Relief 2. "Surety Bonds" - Debtors' Motion for Entry of Interim and Final Orders Authorizing Debtors to Enter Into DIP Surety Bond Program -- Interim Relief 3. "Cash Management" - Debtors' Motion for Entry of Interim and Final Orders (A) Authorizing, But Not Directing, the Debtors to Continue Their Existing Cash Management System, Bank Accounts and Business Forms, (B) Granting Postpetition Intercompany Claims Administrative Expense Priority, (C) Authorizing Continued Investment of Excess Funds in Investment Accounts and (D) Authorizing Continued Intercompany Arrangements and Historical Practices -- Interim Relief Acquisition Partners, LLC; Robin Media Group, Inc.; Scottsboro TV Cable, Inc.; Tennessee, LLC; The Helicon Group, L.P.; Tioga Cable Company, Inc.; and Vista Broadband Communications, LLC. K &E 13953914. 3 4. "NOLs" - Debtors' Motion for Entry of Interim and Final Orders Establishing Notification and Hearing Procedures for Transfers of Common Stock -- Interim Relief C. Operational Motions 1. "Wages and Benefits" - Debtors' Motion for Entry of Interim and Final Orders Authorizing, But Not Directing, the Debtors to (A) Pay Certain Prepetition Compensation and Reimbursable Employee Expenses, (B) Pay and Honor Employee Medical and Other Benefits and (C) Continue Employee Wages and Benefits Programs -- Interim Relief 2. "Shippers /Lien Claimants" - Debtors' Motion for Entry of Interim and Final Orders Authorizing, But Not Directing, Debtors to Pay Prepetition Claims of Shippers, Warehousemen and Miscellaneous Lien Claimants -- Interim Relief 3. "Customer Programs" - Debtors' Motion for Entry of an Order Authorizing, But Not Directing, Debtors to Honor Certain Prepetition Obligations to Customers and to Otherwise Continue Certain Customer Programs and Practices in the Ordinary Course of Business 4. "Insurance" - Debtors' Motion for Entry of Interim and Final Orders Authorizing, But Not Directing, Debtors to (A) Maintain Prepetition Insurance Policies, (B) Enter Into New Insurance Policies, (C) Maintain Premium Financing Agreements and (D) Enter Into New Premium Financing Agreements -- Interim Relief 5. "Taxes" - Debtors' Motion for Entry of Interim and Final Orders (A) Authorizing, But Not Directing, the Debtors to Remit and Pay Certain Taxes and Fees and (B) Authorizing and Directing Banks and Other Financial Institutions to Honor Related Checks and Electronic Payment Requests -- Interim Relief III. Matter the Debtors Request that the Court Hear Shortly After the First Day Hearing 1. "Scheduling" - Joint Motion for Scheduling Conference IV. Matters the Debtors Request that the Court Hear at the First Scheduled Omnibus Hearing A. Retention Applications 1. "K &E Retention" - Debtors' Application for Entry of an Order Authorizing the Employment and Retention of Kirkland & Ellis LLP as Attorneys for the Debtors and Debtors In Possession Effective Nunc Pro Tunc to the Petition Date E K &E 13953914. f• 1� L 2. "AlixPartners Retention" - Debtors' Application for Entry of an Order Authorizing the Employment and Retention of AlixPartners, LLP as Their Restructuring Advisor Nunc Pro Tune to the Petition Date 3. "Curtis, Mallet- Prevost Retention' - Debtors' Application for an Order Authorizing the Employment and Retention of Curtis, Mallet- Prevost, Colt & Mosle LLP as Conflicts Counsel for the Debtors, Nunc Pro Tune to the Petition Date 4. "Friend Hudak Retention' - Debtors' Application for Entry of an Order Authorizing the Employment and Retention of Friend Hudak and Harris, LLP as Special Telecommunications Counsel to the Debtors 5. "Duff & Phelps Retention" - Debtors' Application for an Order Authorizing the Employment and Retention of Duff & Phelps, LLC as Valuation Consultants for the Debtors and Debtors In Possession Nunc Pro Tune to the Petition Date B. Motions 1. "Utilities" - Debtors' Motion for Entry of an Order Determining Adequate Assurance of Payment for Future Utility Services 2. "OCP" - Debtors' Motion for Entry of an Order Authorizing the Retention and Compensation of Certain Professionals Utilized in the Ordinary Course of Business 3. "Interim Compensation" - Debtors' Motion for Entry of an Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses for Professionals 4. "De Minimis Asset Sale Procedures" - Debtors' Motion for Entry of an Order Approving Procedures for the Sale, Transfer or Abandonment of De Minimis Assets 5. "All Trade" - Debtors' Motion for Entry of an Order Authorizing Payment of Prepetition Claims of Trade Creditors in the Ordinary Course of Business 6. "Second Lien" - Debtors' Motion for Entry of an Order Granting Adequate Protection to Second Lien Secured Parties V. Matter the Debtors Reauest that the Court Hear ADDroximateiv 30 Days After the Petition Date 1. "Disclosure Statement" - Debtors' Motion for an Order (I) Approving the Disclosure Statement, (II) Establishing a Record Date for Voting on the Plan of Reorganization and the Rights Offering, (III) Approving 5 K &E 1]95]914. Solicitation Packages and Procedures for the Distribution Thereof, (IV) Approving the Rights Offering Procedures and Rights Exercise Form, (V) Approving the Forms of Ballots and Manner of Notice, (VI) Approving the Commitment Agreements, (VII) Approving the Commitment Fees, (VIII) Establishing Procedures for Voting on the Plan and (IX) Establishing Notice and Objection Procedures for Confirmation of the Plan New York, New York Dated: March 27, 2009 K &E 13953914. ls/ Paul M. Basta Richard M. Cieri Paul M. Basta Stephen E. Hessler KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 -4611 Telephone: (212) 446 -4800 Facsimile: (212) 446 -4900 -and- Ray C. Schrock KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 -6636 Telephone: (312) 861 -2000 Facsimile: (312) 861 -2200 Proposed Counsel to the Debtors and Debtors in Possession (other than Charter Investment, Inc.) -and - Albert Togut Frank A. Oswald TOGUT, SEGAL & SEGAL LLP One Penn Plaza New York, New York 10119 Telephone: (212) 594 -5000 Facsimile: (212) 967 -4258 Proposed Counsel to Debtor and Debtor in Possession Charter Investment, Inc. Richard M. Cieri Paul M. Basta Stephen E. Hessler KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 -4611 Telephone: (212) 446 -4800 Facsimile: (212) 446 -4900 - and - Ray C. Schrock KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 -6636 Telephone: (312) 861 -2000 Facsimile: (312) 861 -2200 Proposed Counsel to the Debtors and Debtors in Possession - and - Albert Togut Frank A. Oswald TOGUT, SEGAL & SEGAL LLP One Penn Plaza New York, New York 10119 Telephone: (212) 594 -5000 Facsimile: (212) 967 -4258 Proposed Counsel to Debtor Charter Investment, Inc. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: CHARTER COMMUNICATIONS, INC., et al., K &E 14395948. Debtors. Chapter 11 Case No. 09- Joint Administration Requested DEBTORS' MOTION FOR ENTRY OF INTERIM AND FINAL ORDERS (A) AUTHORIZING, BUT NOT DIRECTING, THE DEBTORS TO REMIT AND PAY CERTAIN TAXES AND FEES AND (B) AUTHORIZING AND DIRECTING BANKS AND OTHER FINANCIAL INSTITUTIONS TO HONOR RELATED CHECKS AND ELECTRONIC PAYMENT REQUESTS The above - captioned debtors (collectively, the " Debtors ," or " Charter ") hereby move the Court, pursuant to this motion (the " Motion "), for the entry of interim and final orders, The Debtors in these cases include: Ausable Cable TV, Inc.; Hometown TV, Inc.; Plattsburgh Cablevision, Inc.; Charter Communications Entertainment I, LLC; Falcon First Cable of New York, Inc.; Charter Communications, Inc.; Charter Communications Holding Company, LLC; CCHC, LLC; Charter Communications Holdings, LLC; CCH I Holdings, LLC; CCH 1, LLC; CCH II, LLC; CCO Holdings, LLC; Charter Communications Operating, LLC; American Cable Entertainment Company, LLC; Athens Cablevision, Inc.; Cable Equities Colorado, LLC; Cable Equities of Colorado Management Corp.; CC 10, LLC; CC Fiberlink, LLC; CC Michigan, LLC; CC Systems, LLC; CC V Holdings, LLC; CC VI Fiberlink, LLC; CC VI Operating, LLC; CC VII Fiberlink, LLC; CC VIII Fiberlink, LLC; CC VIII Holdings, LLC; CC VIII Leasing of Wisconsin, LLC; CC VIII Operating, LLC; CC VIII, LLC; CCH I Capital Corp.; CCH I Holdings Capital Corp.; CCH II Capital Corp.; CCO Fiberlink, LLC; CCO Holdings Capital Corp.; CCO NR Holdings, LLC; CCO Purchasing, LLC; Charter Advertising of Saint Louis, LLC; Charter Cable Leasing of Wisconsin, LLC; Charter Cable Operating Company, L.L.C.; Charter Cable Partners, L.L.C.; Charter Communications Entertainment, LLC; Charter Communications Entertainment I, DST; Charter Communications Entertainment II, LLC; Charier Communications Holdings Capital Corporation; Charter Communications Operating Capital Corp.; Charter Communications Properties LLC; Charter Communications V, LLC; Charter Communications Ventures, LLC; Charter Communications VI, LLC; Charter Communications VII, LLC; Charter Communications, LLC; Charter Distribution, LLC; Charter Fiberlink — Alabama, LLC; Charter Fiberlink AR- CCVII, LLC; Charter Fiberlink AZ- CCVII, LLC; Charter Fiberlink CA -CCO, LLC; Charter Fiberlink CA- CCVII, LLC; Charter Fiberlink CC VIII, LLC; Charter Fiberlink CCO, LLC; Charter Fiberlink CT -CCO, LLC; Charter Fiberlink — Georgia, LLC; Charter Fiberlink ID- CCVII, LLC; Charter Fiberlink — Illinois, LLC; Charter Fiberlink IN -CCO, LLC; Charter Fiberlink KS -CCO, LLC; Charter Fiberlink LA -CCO, LLC; Charter Fiberlink MA -CCO, LLC; Charter Fiberlink — Michigan, LLC; Charter Fiberlink — Missouri, LLC; Charter Fiberlink MS- CCVI, LLC; Charter Fiberlink NC -CCO, LLC; Charter Fiberlink NC- CCVII, LLC; Charter Fiberlink — Nebraska, LLC; Charter Fiberlink NH -CCO, LLC; Charter Fiberlink NM -CCO, LLC; Charter Fiberlink NV- CCVII, LLC; Charter Fiberlink NY -CCO, LLC; Charter Fiberlink NY- CCVII, LLC; Charter Fiberlink OH- CCO, LLC; Charter Fiberlink OK- CCVII, LLC; Charter Fiberlink OR- CCVII, LLC; Charter Fiberlink SC- CCO, LLC; Charter Fiberlink SC- CCVII, LLC; Charter Fiberlink — Tennessee, LLC; Charter Fiberlink TX- CCO, LLC; Charter Fiberlink UT- CCVII, LLC; Charter Fiberlink VA -CCO, LLC; Charter Fiberlink VT -CCO, LLC; Charter Fiberlink WA- CCVII, LLC; Charter Fiberlink— Wisconsin, LLC; Charter Fiberlink WV -CCO, LLC; Charter Fiberlink, LLC; Charter Gateway, LLC; Charter Helicon, LLC; Charter Investment, Inc.; Charter RMG, LLC; Charter Stores FCN, LLC; Charter Video Electronics, Inc.; Dalton Cablevision, Inc.; Enstar Communications Corporation; Falcon Cable Communications, LLC; Falcon Cable Media, a California Limited Partnership; Falcon Cable Systems Company II, L.P.; Falcon Cablevision, a California Limited Partnership; Falcon Community Cable, L.P.; Falcon Community Ventures 1, LP; Falcon First Cable of the Southeast, Inc.; Falcon First, Inc.; Falcon Telecable, a California Limited Partnership; Falcon Video Communications, L.P.; Helicon Partners I, L.P.; HPI Acquisition Co., L.L.C.; Interlink Communications Partners, LLC; Long Beach, LLC; Marcus Cable Associates, L.L.C.; Marcus Cable of Alabama, L.L.C.; Marcus Cable, Inc.; Midwest Cable Communications, Inc.; Peachtree Cable TV, L.P.; Peachtree Cable T.V., LLC; Renaissance Media LLC; Rifkin Acquisition Partners, LLC; Robin Media Group, Inc.; Scottsboro TV Cable, Inc.; Tennessee, LLC; The Helicon Group, L.P.; Tioga Cable Company, Inc.; and Vista Broadband Communications, LLC. K &E 14395948. substantially in the forms attached hereto as Exhibit A and Exhibit B , (a) authorizing, but not directing, the Debtors to pay certain sales, use, franchise, gross receipts, and other taxes as well as fees for licenses, permits, and other similar charges and assessments owed to the Authorities (as defined below), from the date hereof (the " Petition Date ") through the date of the final hearing in these cases (the " Chapter 11 Cases without regard to whether such taxes and fees accrued or arose before or after the Petition Date, including all taxes subsequently determined to be owed for the period prior to the Petition Date, and (b) authorizing and directing banks and other financial institutions to receive, process, honor, and pay checks presented for payment and electronic payment requests relating to the foregoing. In support of this Motion, the Debtors respectfully state as follows: Jurisdiction 1. The Court has jurisdiction over this Motion under 28 U.S.C. §§ 157 and 1334. This matter is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). 2. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. 3. The statutory bases for the relief requested herein are sections 363(b), 507(a)(8), 541 and 105(a) of the Bankruptcy Code, 1l U.S.C. §§ 101 -1532 (the ` Bankruptcy Code '). Background 4. Charter is one of the largest providers of broadband entertainment and communications services in the United States. Specifically, Charter is the fourth - largest cable operator in the country, with operations in 27 states and approximately 5.5 million residential and commercial customers. As of the date Petition Date, Charter has approximately 16,500 2 A description of the Debtors' business, the reasons for filing these Chapter 11 Cases and the relief sought from this Court to allow for a smooth transition into chapter 11 are set forth in the Declaration of Gregory L. Doody, Chief Restructuring Officer and Senior Counsel of Charter Communications, Inc., in Support of First Day Pleadings (the " First Day Declaration ") filed contemporaneously with this Motion. 2 KRE 14395948. employees, of which approximately 100 employees are represented by one collective bargaining agreement. Unlike many companies entering chapter 11, Charter comes before this Court at a time when its business is continuing to grow. Charter is operationally sound and by all accounts heading in the right direction as a functioning business. Charter generates significant positive cash flow before debt service and has achieved upward, favorable trends as an operating enterprise. Charter is before this Court primarily because of recent deteriorating capital market conditions and its significant debt load of approximately $21.7 billion. 5. After lengthy negotiations, Charter reached agreement with the holders of approximately 73% (approximately $2.9 billion in principal amount) of the CCH I, LLC ( " CCH I ") notes, holders of approximately 52% (approximately $1.3 billion in principal amount) of the CCH II ( " CCH 11 ") notes (collectively, the " Crossover Committee "), and Paul G. Allen ( " Mr. Allen ") on the terms of a consensual, prearranged plan of reorganization (the "Plan "). Since reaching an agreement on the material terms of the Plan, the parties have engaged in extensive negotiations relating to the documentation of the Plan, the accompanying disclosure statement, and the exhibits thereto. 6. The Plan essentially provides for a balance sheet restructuring that will leave intact both Charter's operations and the senior portion of its capital structure. The Plan also provides that Charter's trade creditors will be paid in full. To that end, Charter has filed a motion with the Court seeking to pay its trade creditors in the ordinary course of business. Charter believes that such payment will allow it to continue its operations with minimal disruption and preserve its enterprise value for the benefit of the Debtors' estates, creditors, and all parties in interest. The secured prepetition lenders of Charter's operating subsidiary, whose cash collateral is being used to pay these trade creditors, support this relief. 3 K &E 14395940. 7. The Plan will be funded with (a) cash on hand and cash generated from Charter's operations, (b) an exchange of CCH II notes (the " Notes Exchange (c) an additional debt commitment by certain holders of CCH II notes (the " New Debt Commitment "), and (d) the proceeds of an equity rights offering (the " Rights Offering ') that certain members of the Crossover Committee have agreed to backstop. Charter expects to raise an aggregate amount of approximately $1.2 billion through the Notes Exchange, $267 million through the New Debt Commitment, and up to $2 billion through the Rights Offering. Importantly, other than the Plan funding described above, Charter is not seeking to enter into debtor -in- possession financing. Charter intends to fund these Chapter 11 Cases using cash on hand and significant positive cash flow from operations. As of March 27, 2009, Charter had approximately $700 million in cash on hand and cash equivalents. 8. On the Petition Date, each of the Debtors filed a petition with the Court under chapter 11 of the Bankruptcy Code. The Debtors are operating their businesses and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No request for the appointment of a trustee or examiner has been made in the Chapter 11 Cases, and no committees have been appointed or designated. Concurrently with the filing of this Motion, the Debtors have requested procedural consolidation and joint administration of the Chapter 11 Cases. The Debtors' Taxes 9. In the ordinary course of the Debtors' businesses, the Debtors (a) collect sales taxes from their customers and incur taxes, including, but not limited to, use, franchise, income and other taxes in operating their businesses (collectively, the " Taxes ") and (b) collect 3 The Debtors have a taxable presence in 29 states. Il K &E 14395949. regulatory fees and other similar charges and assessments (collectively, the "Fees ") on behalf of various taxing, licensing, and regulatory authorities (collectively, the " Authorities ") and pay Fees to such Authorities for licenses and permits required to conduct the Debtors' businesses .6 The Taxes and Fees are paid to the respective Authorities in accordance with all applicable laws and regulations. 10. The Debtors estimate that the total amount of prepetition Taxes and Fees owing to the various Authorities will not exceed approximately $58,000,000. Of this prepetition amount, approximately $4,300,000 will become due and payable shortly after the Petition Date and before a final hearing on this Motion. With the exception of the use taxes, the franchise fees, certain of the corporate fees and the Michigan Business Tax, all of the Taxes and Fees are collected from third parties and remitted to the appropriate Authority. The Debtors have timely filed all returns for the Taxes and Fees as of the Petition Date. 11. If the Taxes and Fees are not paid, some, if not all, of the applicable governmental Authorities may cause the Debtors to be audited. Such audits will unnecessarily divert the Debtors' attention away from their reorganization efforts. And if the Debtors do not pay such amounts in a timely manner, the governmental Authorities may attempt to suspend the Debtors' operations, file liens, seek to lift the automatic stay, and pursue other remedies that could harm 4 When the Debtors collect Fees from their customers, they most often do so on behalf of governmental entities. The Debtors are then required to remit the collected amounts to the appropriate government entity. The Debtors hereby request authority to pay Fees regardless of whether they constitute trust fund obligations. 5 The complete list of thousands of tax Authorities is too voluminous for inclusion in this Motion, but a comprehensive list of each Authority can be obtained at www.kccllc.net/Charter or by contacting Albert Kass at KCC via email at akass @kccllc.com or by phone at (310) 776 -7360. 6 The Debtors do not seek authority to collect and pay state and federal withholding taxes under this motion but rather request such authority as part of the Debtors' Motion for Entry of Interim and Final Orders Authorizing, But Not Directing, the Debtors to (A) Pay Certain Prepetition Compensation and Reimbursable Employee Expenses, (B) Pay and Honor Employee Medical and Other Benefits and (C) Continue Employee Wages and Benefits Programs filed concurrently herewith. 5 K &E 14395948. the estates. Finally, some of these outstanding tax liabilities are for trust fund taxes that the Debtors have collected and hold in trust for the benefit of the applicable governmental Authority. Therefore, such funds do not constitute property of the estate and could not otherwise be used by the Debtors. 12. In all cases, the Debtors' failure to pay the Taxes and Fees could have a material adverse impact on their ability to operate in the ordinary course of business. Any disputes that could impact their ability to conduct business in a particular jurisdiction could have a wide- ranging and adverse effect on the Debtors' operations as a whole. 13. Accordingly, the Debtors are seeking authority to pay (a) the approximately $4,300,000 in prepetition Taxes and Fees that will become due and payable during the period between the Petition Date and before a final hearing on this Motion on an interim basis; and (b) all Taxes and Fees without regard to whether such Taxes or Fees accrued or arose before or after the Petition Date on a final basis. 1. Sales and Use Taxes 14. In the ordinary course of business, the Debtors collect sales taxes (the " Sales Taxes ") on a per sale basis from the purchasers of certain of their products and services on behalf of various state and local taxing authorities (the " Taxing Authorities "), and remit them periodically to such Taxing Authorities. The process by which the Debtors remit the Sales Taxes varies, depending on the nature of the tax and the Taxing Authority to which it is to be paid. 15. Sales Taxes accrue as services are provided and are calculated based upon a statutory percentage of the sale price. For the most part, Sales Taxes are paid in arrears, ordinarily on a monthly basis, during the month following the month in which the taxes were accrued. For some jurisdictions, the Sales Taxes are paid on a quarterly, semi - annual or annual basis so that the taxes are paid in the month subsequent to the period in which the taxes were K &E 14395948. accrued. Other jurisdictions, however, require the Debtors to remit estimated Sales Taxes on a monthly, quarterly, semiannual or annual basis. The Debtors subsequently "true up" the estimated payment to actual liability with their next return filed to determine any payment deficiency or surplus of the applicable period and an appropriate refund or payment is then made. 16. The Debtors also are obligated to remit use taxes (the " Use Taxes and together with the Sales Taxes, the " Sales and Use Taxes ") on a periodic basis to the applicable Taxing Authorities. The Debtors incur Use Taxes in connection with the purchase of taxable equipment and supplies for their own use, in circumstances where the vendor of such equipment and supplies failed to collect a Sales Tax from the Debtors. Generally, the Debtors remit the Use Taxes to the relevant Taxing Authorities on the same basis as they remit Sales Taxes. 17. The Debtors estimate that they owe approximately $14,800,000 in Sales and Use Taxes to the Taxing Authorities as of the Petition Date. Of this amount, approximately $1,400,000 is due within 20 days of the Petition Date. II. Fees 18. In addition to the Sales and Use Taxes, in the ordinary course of conducting their business operations, the Debtors collect from their customers and pay to various federal, state, and local regulatory authorities (the " Regulatory Authorities and, together with the Taxing Authorities, the " Authorities "), various fees and taxes, including, but not limited to, emergency telephone services charges, federal excise taxes, state and local utility user fees, state general and gross receipts assessments, FCC fees, universal lifeline telephone service fees, universal service fund fees, universal access fund fees, inspection and supervision fees, telecommunications relay service fees, telecommunications devices access program fees, advanced services fund fees, state healthcare foundation fees, state transportation foundation fees, dual party relay fund fees and other similar fees (collectively, the "Fees" and, together with 7 K &E 14395948. the Sales and Use Taxes, Franchise Fees, and E -Rate Amounts, the " Taxes and Fees "). The Fees are used to fund various federal, state and city agencies, and to subsidize the cost of local telecommunications service. 19. The process by which the Debtors remit the Fees varies and depends upon the nature of the particular Regulatory Fee and the Regulatory Authority to which it is to be paid. The Debtors generally pay the Fees within thirty (30) days following the end of the period in which the fees accrue. 20. Depending on the particular jurisdiction, the Fees are assessed by the Regulatory Authorities based upon (a) a percentage of the Debtors' gross revenues derived from the provision of services within the jurisdiction of the relevant Regulatory Authority, (b) the number of consumers serviced by the Debtors in the jurisdiction, (c) the number of access liens provided by the Debtors, or (d) as a flat fee. These fees are typically imposed by the Regulatory Authorities in exchange for granting the Debtors authorization to provide their services in the particular Regulatory Authority's jurisdiction. 21. The Debtors estimate that as of the Petition Date approximately $4,000,000 will be accrued and unpaid in respect of Fees. Of this amount, approximately $2,000,000 is due within 20 days of the Petition Date. III. Franchise Fees 22. The Debtors pay certain franchise fees (the " Franchise Fees ") to various localities pursuant to agreements for the use of their right -of -ways. The Debtors recover the costs of Franchise Fees by surcharging their customers. The Debtors estimate that as of the Petition Date, approximately $39,200,000 will be accrued and unpaid in respect of Franchise Fees. Of that amount, approximately $600,000 will be due within 20 days of the Petition Date. D K &E 14395948. IV. E -Rate Program 23. Pursuant to the Universal Service Order (the " Order ") adopted by the FCC on May 7, 1997, eligible schools and libraries are entitled to receive rebates during a funding year ranging from 20% to 90% on telecommunications services and Internet access (the " -Rate Program "). The rebates are funded from the Universal Service Fund and are administered by the Schools and Libraries Division (the "SLD ") of the Universal Service Administration Company (the " USAC "). Each funding year commences on July 1 and terminates on June 30 of the following year. 24. In the ordinary course of their businesses, the Debtors provide certain schools and libraries (the " Schools and Libraries ") with telecommunications and Internet access services (the " Services "). The Debtors manage Schools and Libraries accounts in one of two ways. The first method provides that the Debtors bill the Schools and Libraries at the full rate for the Services. The Schools and Libraries pay the Debtors in full and seek reimbursement from the USAC. The Debtors are required to sign a Billed Entity Applicant Reimbursement form the " BEAR Forms ") for the Schools and Libraries concurring with the statement of Services and confirming the right of the Schools and Libraries to obtain reimbursement from the USAC. The BEAR Forms are then submitted by the Schools and Libraries to the SLD. The second method provides that the Debtors bill the Schools and Libraries the discounted amount approved by the USAC for the Services. The Debtors then seek reimbursement directly from the USAC for the discounted amounts. The Schools and Libraries may choose the method for reimbursement. 25. Under the first method, the USAC processes each BEAR Form and mails a check (the " Rebate Checks ") to the debtors in an amount equal to the discount rate for the applicable Services (in the aggregate, the " -Rate Amount "). The Debtors are required to deposit the Rebate Checks into their own bank accounts and issue new checks drawn upon the Debtors' 0 K &E 14395948. bank accounts to the appropriate Schools and Libraries within 20 calendar days from the date of receiving the Rebate Checks. Failure to issue a check under this method within the prescribed time is a violation of the program rules and can result in suspension or dismissal from the program by the FCC. 26. The Debtors anticipate that as of the Petition Date, the aggregate amount of unissued and accrued Rebate Checks due within 20 days of the Petition Date is approximately $200,000. As the Rebate Checks received by the Debtors are not property of the Debtors' estate and are comparable to a trust fund tax, the Debtors seek the authority to issue checks to Schools and Libraries postpetition, regardless of whether the services for which the rebates are issued were rendered prepetition. Relief Requested 27. By this Motion, the Debtors seek entry of an order authorizing them to pay in the ordinary course of business any Taxes and Fees without regard to whether such obligations accrued or arose before or after the Petition Date, including all taxes subsequently determined to be owed for the period prior to the Petition Date. The Debtors estimate they owe an aggregate amount of approximately $58,000,000 on account of prepetition Taxes and Fees, of which approximately $4,300,000 will become due during the period between the Petition Date and before a final hearing on this Motion. Accordingly, the Debtors seek to pay approximately $4,300,000 of the approximately $58,000,000 in prepetition Taxes and Fees that are due within 20 days of the Petition Date and before a final hearing on this Motion. The Debtors further seek authority to pay the balance of any prepetition Taxes and Fees outstanding, as well as any Taxes and Fees or obligations that become due, without regard to whether such Taxes and Fees or obligations accrued or arose before or after the Petition Date, on a final basis. 10 K &E 14395948. 28. In addition, the Debtors request that the Court schedule a final hearing in approximately 20 days of the Petition Date to consider approval of the Motion on a final basis. 29. The Debtors submit the Taxes and Fees and E -Rate Amounts to the Authorities on a periodic basis with funds drawn by checks (the " Checks ") or by means of electronic funds transfers (the " Electronic Transfers "). Prior to the Petition Date, certain Authorities were sent Checks or Electronic Transfers as payment for the Debtors' obligations with respect to prepetition Taxes and Fees or E -Rate Amounts and certain of the checks may not have cleared the Debtors' banks or other financial institutions (together, the " Banks ") as of the Petition Date. The Debtors therefore also request that all applicable Banks be authorized to receive, process, honor, and pay all checks presented for payment and to honor all electronic payment requests made by the Debtors related to the foregoing, whether such checks were presented or electronic requests were submitted prior to or after the Petition Date. The Debtors further request that all such Banks be authorized to rely on the Debtors' designation of any particular check or electronic payment request as approved pursuant to this Motion. Basis for Relief 30. There are several bases for allowing a debtor in possession to pay taxes and related fees in the ordinary course of business, including the following: (a) certain of the Taxes and Fees are not property of the estate pursuant to section 541(d) of the Bankruptcy Code; (b) section 105 of the Bankruptcy Code and the Court's general equitable powers permit the Court to grant the relief sought; (c) portions of the Taxes and Fees may be entitled to priority status pursuant to section 507(a)(8) of the Bankruptcy Code; (d) section 363 of the Bankruptcy Code gives the Debtors authority to remit payment on account of such Taxes and Fees in the ordinary course of business; (e) governmental entities may sue the Debtors' directors and officers for unpaid Taxes and Fees, distracting the Debtors from their reorganization efforts; 11 K &E 14395W8. (f) prompt payment of Taxes and Fees may eliminate unnecessary penalties and interest expense and likely would not give the Authorities any more than they otherwise would be entitled to under a plan of reorganization. I. Ample Authority Exists for This Court to Authorize the Debtors to pay Taxes and Fees 31. First, section 541(d) of the Bankruptcy Code provides, in relevant part, that "[p]roperty in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest ... becomes property of the estate under subsection (a)(1) or (2) of this section only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold." 11 U.S.C. § 541(d). 32. Many of the Taxes and Fees, including the federal and some state universal service fund fees, constitute trust fund taxes, which the Debtors are required to collect from their customers and hold in trust for payment to the Authorities. As a result, courts have held that such taxes are not part of a debtor's estate under section 541(d). See, e.g., Beier v. Internal Revenue Serv. 496 U.S. 53, 57 -60 (1990) (holding that any prepetition payment of trust fund taxes is not a transfer subject to avoidance because such funds are not the debtor's property); DuCharmes & Co.. Inc. v. Mich. 852 F.2d 194 (6th Cir. 1988) (per curiam) (same); In re Shank 792 F.2d 829, 833 (9th Cir. 1986) (sales tax required by state law to be collected by sellers from their customers is a trust fund tax and not released by bankruptcy discharge); DeChiaro v. New York State Tax Comm'n 760 F.2d 432, 435 -36 (2d Cir. 1985) (same); Rosenow v. Ill. Dept. of Revenue (In re Rosenowl 715 F.2d 277, 279 -82 (7th Cir. 1983) (same); Western Surety Co. v. Waite (In re Waite) 698 F.2d 1177, 1179 (11th Cir. 1983) (same). The Debtors, therefore, generally do not have an equitable interest in funds held on account of such trust fund taxes, and the Debtors should be permitted to pay those funds to the Authorities as they become due. 12 K &E 14395948. 33. Moreover, to the extent any of the Taxes and Fees do not constitute trust fund taxes in a particular jurisdiction, the Court may rely on its general equitable powers to grant the relief requested in this Motion as codified in section 105(a) of the Bankruptcy Code. Section 105(a) empowers the Court to "issue any order, process or judgment that is necessary to carry out the provisions of [the Bankruptcy Code]." I1 U.S.C. § 105(a). A bankruptcy court's use of its equitable powers to "authorize the payment of prepetition debt when such payment is needed to facilitate the rehabilitation of the debtor is not a novel concept." In re Ionosphere Clubs, Inc. 98 B.R. 174, 175 -176 (Bankr. S.D.N.Y. 1989) (citing Miltenberger v. Logansport, C. & S.W. R. Co., 106 U.S. 286, 1 S.Ct. 140, 27 L.Ed. 117 (1882)). Section 105(a) authorizes a court to "permit pre -plan payment of a prepetition obligation when essential to the continued operation of the debtor." In re NVR L.P. 147 B.R. 126, 127 (Bankr. E.D. Va. 1992); see also In re Just for Feet, Inc. 242 B.R. 821, 825 (D. Del. 1999). 34. The application of section 105(a) in the context of this Motion is appropriate because the relief requested herein is consistent with the rehabilitative policy of chapter 11 of the Bankruptcy Code. A debtor in possession is a fiduciary with a duty to protect and preserve the estate, including the value of the business as a going concern. In re CoServ, L.L.C. 273 B.R. 487, 497 (Bankr. N.D. Tex. 2002) ( "There are occasions when this [fiduciary] duty can only be fulfilled by the preplan satisfaction of a prepetition claim. "). Granting the relief requested in this Motion will enhance the likelihood of the Debtors' successful rehabilitation, maximize the value of the estates' assets, and thus benefit the estates' creditors. 35. In addition, some or all of the Taxes and Fees are or may be entitled to priority status pursuant to section 507(a)(8) of the Bankruptcy Code and, therefore, must be paid in full under section 1129(a)(9)(C) of the Bankruptcy Code. Certain of the Fees may be entitled to 13 K &E 14395949. priority status under section 507(a)(8)(A) of the Bankruptcy Code as "tax[es] ... measured by income or gross receipts." Despite being labeled "fees," these expenditures actually constitute a kind of tax. For bankruptcy purposes, a tax is characterized as an (1) involuntary pecuniary burden, regardless of name, laid upon the individual or property; (2) imposed by, or under the authority of the legislature; (3) for public purposes, including the purposes of defraying expenses of government or undertakings authorized by it; and (4) under the police or taxing power of the estate. LTV Steel Company, Inc. v. Shalala (In re Chateaugay Corp.) 53 F.3d 478, 498 (2d Cir. 1995). The Fees are an involuntary pecuniary burden, generally imposed by the authority of a federal, state, or local legislature under its police or taxing powers and used for the public purposes of funding various federal and state agencies and subsidizing the high cost of local and other governmental support services. As a tax assessed as a percentage of the debtors' revenue derived from the provision of services within the jurisdiction of the relevant regulatory body, certain of the Fees must be paid in full before any general unsecured obligations of a Debtor may be satisfied. 36. Furthermore, in some cases, the Authorities may assert that the Debtors' directors and officers are personally liable if the Debtors fail to meet the obligations imposed upon them to remit Taxes and Fees. To the extent such accrued Taxes and Fees were unpaid as of the Petition Date, the Debtors' directors and officers may be subject to lawsuits in certain jurisdictions during the pendency of these Chapter 11 Cases, even if the failure to pay such Taxes and Fees was not a result of any malfeasance on their part. Such potential litigation would prove distracting for the Debtors, the named directors and officers and this Court, which may be asked to entertain various motions seeking injunctions relating to potential court actions. 14 K &E 14395948. Therefore, it is in the best interests of the Debtors' estates to eliminate the possibility of these distractions. 37. The Court also may authorize payment of prepetition obligations such as the Taxes and Fees pursuant to section 363 of the Bankruptcy Code. Section 363(b) provides, in relevant part, that "[t]he [debtor], after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate." 11 U.S.C. § 363(b)(1). Under this section, a court may authorize a debtor to pay certain prepetition claims. See, e.g. In re Ionosphere Clubs, Inc. 98 B.R. 174, 175 (Bankr. S.D.N.Y. 1989) (affirming lower court order authorizing payment of prepetition wages pursuant to section 363(b)). To do so, "the debtor must articulate some business justification, other than mere appeasement of major creditors." Id. at 175. As discussed herein, paying the Taxes and Fees will benefit the estate and its creditors by allowing the Debtors' operations to continue without interruption. 38. Accordingly, the timely payment of the Taxes and Fees is necessary and in the best interest of the Debtors, their estates, and their creditors. In numerous chapter I I cases, bankruptcy courts in this district and other districts have exercised their powers to authorize debtors to pay prepetition tax obligations. See, e.g., In re Tronox Incorporated, Case No. 09- 10156 (Bankr. S.D.N.Y. February 6, 2009); In re Lyondell Chemical Co. Case No. 09 -10023 (Bankr. S.D.N.Y. Jan. 8, 2009); In re Lenox Sales, Inc. Case No. 08 -14679 (Bankr. S.D.N.Y. Dec. 16, 2008); In re Wellman Inc. Case No. 05 -10595 (Bankr. S.D.N.Y. Feb. 26, 2008); In re Musicland Holding Corp. Case No. 06 -10064 (Bankr. S.D.N.Y. Jan. 17, 2006); In re Calnine Corp. Case No. 05 -60200 (Bankr. S.D.N.Y. December 27, 2005); In re Delta Air Lines, Inc. Case No. 05 -17923 (Bankr. S.D.N.Y. September 16, 2005); In re Tower Automotive, Inc. Case 15 K &E 14395948. No. 05 -10578 (Bankr. S.D.N.Y. February 3, 2005). The Debtors submit that the present circumstances warrant similar relief in these Chapter 11 Cases. II. Cause Exists to Authorize and Direct the Debtors' Financial Institutions to Honor Checks and Electronic Fund Transfers 39. The Debtors represent that they have sufficient availability of funds to pay the amounts described herein in the ordinary course of business by virtue of cash reserves and expected cash flows from ongoing business operations. Also, under the Debtors' existing cash management system, the Debtors can readily identify checks or wire transfer requests as relating to an authorized payment made with respect to Taxes and Fees. Accordingly, the Debtors believe that checks or wire transfer requests, other than those relating to authorized payments, will not be honored inadvertently. The Debtors therefore request that the Court authorize and direct all applicable financial institutions, when asked by the Debtors, to receive, process, honor and pay any and all checks or wire transfers related to the payment of any Taxes and Fees. The Requirements of Bankruptcy Rule 6003 are Satisfied 40. Bankruptcy Rule 6003 requires that any motion seeking relief to use property of the estate pursuant to Bankruptcy Code section 363 or to pay prepetition claims within 20 days of the Petition Date must show that the relief would prevent "immediate and irreparable harm." For the many reasons outlined above, the failure to pay Taxes and Fees would cause immediate and irreparable harm to the Debtors' restructuring efforts. For example, the failure to pay Taxes and Fees could lead to distracting litigation against the Debtors and their officers and directors personally by the Authorities. This reorganization obviously requires the complete attention of the Debtors' officers and directors. Thus, if the relief is not granted, these tax related lawsuits would cause the Debtors' estates immediate and irreparable harm by detracting from the reorganization efforts. See In re Calvine Corp. 365 B.R. 401, 410 (S.D.N.Y. 2007) (holding that 16 K &E 14195948. potential distractions to employees constitute "imminent irreparable harm" if they would impact the restructuring process); In re Lomas Fin. Corp. 117 B.R. 64, 67 (S.D.N.Y. 1990) (same). Moreover, the various counterparties to the Debtors' franchise agreements throughout the country could seek to terminate or otherwise impair these franchise arrangements, potentially impairing the Debtors' delivery of telecommunications services to some customers. Motion Practice 41. This Motion includes citations to the applicable rules and statutory authorities upon which the relief requested herein is predicated, and a discussion of their application to this Motion. Accordingly, the Debtors submit that this Motion satisfies Rule 9013 -1(a) of the Local Bankruptcy Rules for the Southern District of New York (the " Local Rules "). Debtors' Reservation of Rights 42. Nothing in this Motion should be construed as impairing the Debtors' right to contest the amounts of any Taxes and Fees allegedly owing to the various Authorities, and the Debtors expressly reserve all their rights with respect thereto. Notice 43. The Debtors have provided notice of this Motion to: (a) the Office of the United States Trustee for the Southern District of New York; (b) the entities listed on the Consolidated List of Creditors Holding the 80 Largest Unsecured Claims filed pursuant to Bankruptcy Rule 1007(d); (c) counsel to the agent under the Debtors' prepetition first lien credit facility; (d) counsel to the agent under the Debtors' prepetition second lien credit facility; (e) the counterparties to those certain interest rate swap agreements with CCO; (f) counsel to the unofficial committee of unaffiliated holders of those certain CCH I and CCH II notes issuances; (g) counsel to the unofficial committee of unaffiliated holders of those certain CCH II note issuances; (h) the indenture trustees for those indentures to which a Debtor is a party; (i) counsel 17 K &E 14395949. to Vulcan Inc.; 0) the Internal Revenue Service; (k) the Securities and Exchange Commission; (1) the Federal Communications Commission; (m) the Office of the Attorney General in all of the states in which the Debtors operate; and (n) any applicable state public utilities commissions required to receive notice under the Bankruptcy Rules or Local Rules. In light of the nature of the relief requested, the Debtors respectfully submit that no further notice is necessary. ME 14395948. WHEREFORE, the Debtors respectfully request that the Court enter interim and final orders, substantially in the forms attached hereto as Exhibit A and Exhibit B , (a) authorizing, but not directing, the Debtors to pay certain sales, use, franchise, gross receipts, single business, real and personal property, and other taxes, as well as fees for licenses, permits, and other similar charges and assessments, owed to the Authorities, without regard to whether such obligations accrued or arose before or after the Petition Date, including all taxes subsequently determined to be owed for the period prior to the Petition Date, (b) authorizing and directing banks and other K &E 14195948. financial institutions to receive, process, honor, and pay checks presented for payment and electronic payment requests relating to the foregoing, and (c) granting such other and further relief as is just and proper. New York, New York Dated: March 27, 2009 ls/ Paul M. Basta Richard M. Cieri Paul M. Basta Stephen E. Hessler KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 -4611 Telephone: (212) 446 -4800 Facsimile: (212) 446 -4900 - and - Ray C. Schrock KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 -6636 Telephone: (312) 861 -2000 Facsimile: (312) 861 -2200 Proposed Counsel to the Debtors and Debtors in Possession -and - Albert Togut Frank A. Oswald TOGUT, SEGAL & SEGAL LLP One Penn Plaza New York, New York 10119 Telephone: (212) 594 -5000 Facsimile: (212) 967 -4258 Proposed Counsel to Debtor Charter Investment, Inc. K &E 14395948. EXHIBIT A Proposed Interim Order K &E 1439594& UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: ) Chapter I I CHARTER COMMUNICATIONS, INC., et al., ) Case No. 09- Debtors. ) Joint Administration Requested INTERIM ORDER (A) AUTHORIZING, BUT NOT DIRECTING, THE DEBTORS TO REMIT AND PAY CERTAIN TAXES AND FEES AND (B) AUTHORIZING AND DIRECTING BANKS AND OTHER FINANCIAL INSTITUTIONS TO HONOR RELATED CHECKS AND ELECTRONIC PAYMENT Upon the motion (the " Motion ")' of the above - captioned debtors (collectively, the " Debtors ")z for the entry of an interim order (the "Order ") (a) authorizing, but not directing, the I Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion. The Debtors in these cases include: Ausable Cable TV, Inc.; Hometown TV, Inc.; Plattsburgh Cablevision, Inc.; Charter Communications Entertainment I, LLC; Falcon First Cable of New York, Inc.; Charier Communications, Inc.; Charter Communications Holding Company, LLC; CCHC, LLC; Charter Communications Holdings, LLC; CCH I Holdings, LLC; CCH I, LLC; CCH 1I, LLC; CCO Holdings, LLC; Charter Communications Operating, LLC; American Cable Entertainment Company, LLC; Athens Cablevision, Inc.; Cable Equities Colorado, LLC; Cable Equities of Colorado Management Corp.; CC 10, LLC; CC Fiberlink, LLC; CC Michigan, LLC; CC Systems, LLC; CC V Holdings, LLC; CC VI Fiberlink, LLC; CC VI Operating, LLC; CC VII Fiberlink, LLC; CC VIII Fiberlink, LLC; CC VIII Holdings, LLC; CC VIII Leasing of Wisconsin, LLC; CC VIII Operating, LLC; CC VIII, LLC; CCH I Capital Corp.; CCH I Holdings Capital Corp.; CCH II Capital Corp.; CCO Fiberlink, LLC; CCO Holdings Capital Corp.; CCO NR Holdings, LLC; CCO Purchasing, LLC; Charter Advertising of Saint Louis, LLC; Charter Cable Leasing of Wisconsin, LLC; Charter Cable Operating Company, L.L.C.; Charter Cable Partners, L.L.C.; Charter Communications Entertainment, LLC; Charter Communications Entertainment I, DST; Charter Communications Entertainment II, LLC; Charter Communications Holdings Capital Corporation; Charter Communications Operating Capital Corp.; Charter Communications Properties LLC; Charter Communications V, LLC; Charter Communications Ventures, LLC; Charter Communications VI, LLC; Charter Communications VII, LLC; Charter Communications, LLC; Charter Distribution, LLC; Charter Fiberlink — Alabama, LLC; Charter Fiberlink AR- CCVII, LLC; Charter Fiberlink AZ -CCVII, LLC; Charter Fiberlink CA -CCO, LLC; Charter Fiberlink CA- CCVII, LLC; Charter Fiberlink CC VIII, LLC; Charter Fiberlink CCO, LLC; Charter Fiberlink CT -CCO, LLC; Charter Fiberlink — Georgia, LLC; Charter Fiberlink ID- CCVII, LLC; Charter Fiberlink — Illinois, LLC; Charter Fiberlink IN -CCO, LLC; Charter Fiberlink KS -CCO, LLC; Charter Fiberlink LA -CCO, LLC; Charter Fiberlink MA -CCO, LLC; Charter Fiberlink — Michigan, LLC; Charter Fiberlink — Missouri, LLC; Charter Fiberlink MS- CCVL LLC; Charter Fiberlink NC -CCO, LLC; Charter Fiberlink NC- CCVII, LLC; Charter Fiberlink — Nebraska, LLC; Charter Fiberlink NH -CCO, LLC; Charter Fiberlink NM -CCO, LLC; Charter Fiberlink NV- CCVII, LLC; Charter Fiberlink NY -CCO, LLC; Charter Fiberlink NY- CCVII, LLC; Charter Fiberlink OH- CCO, LLC; Charter Fiberlink OK- CCVII, LLC; Charter Fiberlink OR- CCVII, LLC; Charter Fiberlink SC- CCO, LLC; Charter Fiberlink SC- CCVII, LLC; Charter Fiberlink — Tennessee, LLC; Charter Fiberlink TX- K &E 14395948. Debtors to remit and pay certain sales, use, franchise, and other taxes, as well as fees for licenses, permits, and other similar charges and assessments and (b) authorizing and directing banks and other financial institutions to receive, process, honor, and pay checks presented for payment and electronic payment requests relating to the foregoing; and upon the First Day Declaration; it appearing that the relief requested is in the best interests of the Debtors' estates, their creditors and other parties in interest and that the relief requested is necessary to avoid immediate and irreparable harm; the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334; consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. § 157(b); venue being proper before this court pursuant to 28 U.S.C. §§ 1408 and 1409; notice of the Motion having been adequate and appropriate under the circumstances; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED 1. The Motion is granted as set forth herein on an interim basis. 2. A final hearing shall be held on , 2009 at _ _ a.m. /p.m. prevailing Eastern Time (the " Final Hearing "). Any objections or responses to the Motion shall be filed on or before _ business days prior to the Final Hearing and served in accordance with applicable law. CCO, LLC; Charter Fiberlink UT- CCVII, LLC; Charter Fiberlink VA -CCO, LLC; Charter Fiberlink VT -CCO, LLC; Charter Fiberlink WA- CCVII, LLC; Charter Fiberlink— Wisconsin, LLC; Charter Fiberlink WV -CCO, LLC; Charter Fiberlink, LLC; Charter Gateway, LLC; Charter Helicon, LLC; Charter Investment, Inc.; Charter RMG, LLC; Charter Stores FCN, LLC; Charter Video Electronics, Inc.; Dalton Cablevision, Inc.; Enstar Communications Corporation; Falcon Cable Communications, LLC; Falcon Cable Media, a California Limited Partnership; Falcon Cable Systems Company II, L.P.; Falcon Cablevision, a California Limited Partnership; Falcon Community Cable, L.P.; Falcon Community Ventures I, LP; Falcon First Cable of the Southeast, Inc.; Falcon First, Inc.; Falcon Telecable, a California Limited Partnership; Falcon Video Communications, L.P.; Helicon Partners 1, L.P.; HPI Acquisition Co., L.L.C.; Interlink Communications Partners, LLC; Long Beach, LLC; Marcus Cable Associates, L.L.C.; Marcus Cable of Alabama, L.L.C.; Marcus Cable, Inc.; Midwest Cable Communications, Inc.; Peachtree Cable TV, L.P.; Peachtree Cable T.V., LLC; Renaissance Media LLC; Rifkin Acquisition Partners, LLC; Robin Media Group, Inc.; Scottsboro TV Cable, Inc.; Tennessee, LLC; The Helicon Group, L.P.; Tioga Cable Company, Inc.; and Vista Broadband Communications, LLC. 2 K &E 14395948. 3. Subject to a final order on this Motion, the Debtors are authorized, but not required, to pay and remit to various taxing, licensing and regulatory Authorities (a) taxes, including, but not limited to, sales, use, franchise and other taxes incurred or collected by the Debtors from their customers on behalf of the Authorities (collectively, the " Taxes ") and (b) fees, licenses, permits and other similar charges and assessments incurred by the Debtors (collectively, the "Fees ") in an amount equal to approximately $4,300,000 that will become due and payable during the period from the date of this Order until the date that a final order is entered in the matter. 4. Nothing in the Motion or this Order, nor as a result of the Debtors' payment of claims pursuant to this Order, shall be deemed or construed as: (a) an admission as to the validity or priority of any claim against the Debtors; (b) a waiver of the Debtors' rights to dispute any claim; or (c) an approval or assumption of any agreement, contract or lease pursuant to section 365 of the Bankruptcy Code. 5. The Debtors do not concede that any liens (contractual, common law, statutory, or otherwise) described in this Motion are valid, and the Debtors expressly reserve the right to contest the extent, validity, or perfection or seek the avoidance of all such liens. 6. The banks and financial institutions on which checks were drawn or electronic payment requests made in payment of the prepetition obligations approved herein are authorized and directed to receive, process, honor and pay all such checks and electronic payment requests when presented for payment, and that all such banks and financial institutions are authorized to 3 Because the list of thousands of Authorities is too voluminous to include in this Order, a comprehensive list of the individual Authorities can be obtained at www.kccllc.net/Charter or by contacting Albert Kass at KCC via email at akass @kccllc.com or by phone at (310) 776 -7360. K K &E 14395948. rely on the Debtors' designation of any particular check or electronic payment request as approved by this Order. 7. The Debtors are authorized to reissue any check or electronic payment that originally was given in payment of any prepetition amount authorized to be paid under this Order and is not cleared by the applicable bank or other fmancial institution. 8. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion. 9. Notwithstanding the possible applicability of Bankruptcy Rules 6004(h), 7062, 9014 or otherwise, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 10. The requirements set forth in Bankruptcy Rule 6003(b) are satisfied by the contents of the Motion or otherwise deemed waived. 11. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. New York, New York Date: 1 2009 United States Bankruptcy Judge 0 K &E 14395948. EXHIBIT B Proposed Final Order K &E 14395946. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: ) Chapter 1 I CHARTER COMMUNICATIONS, INC., et al., ) Case No. 09- Debtors. ) Joint Administration Requested FINAL ORDER (A) AUTHORIZING, BUT NOT DIRECTING, THE DEBTORS TO REMIT AND PAY CERTAIN TAXES AND FEES AND (B) AUTHORIZING AND DIRECTING BANKS AND OTHER FINANCIAL INSTITUTIONS TO HONOR RELATED CHECKS AND ELECTRONIC PAYMENT REQUESTS Upon the motion (the " Motion ")' of the above - captioned debtors (collectively, the " Debtors ") for the entry of an order (the "Order ") (a) authorizing, but not directing, the Debtors I Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion. The Debtors in these cases include: Ausable Cable TV, Inc.; Hometown TV, Inc.; Plattsburgh Cablevision, Inc.; Charter Communications Entertainment I, LLC; Falcon First Cable of New York, Inc.; Charter Communications, Inc.; Charter Communications Holding Company, LLC; CCHC, LLC; Charter Communications Holdings, LLC; CCH I Holdings, LLC; CCH 1, LLC; CCH II, LLC; CCO Holdings, LLC; Charter Communications Operating, LLC; American Cable Entertainment Company, LLC; Athens Cablevision, Inc.; Cable Equities Colorado, LLC; Cable Equities of Colorado Management Corp.; CC 10, LLC; CC Fiberlink, LLC; CC Michigan, LLC; CC Systems, LLC; CC V Holdings, LLC; CC VI Fiberlink, LLC; CC VI Operating, LLC; CC VII Fiberlink, LLC; CC VIII Fiberlink, LLC; CC VIII Holdings, LLC; CC VIII Leasing of Wisconsin, LLC; CC VIII Operating, LLC; CC VIII, LLC; CCH I Capital Corp.; CCH I Holdings Capital Corp.; CCH II Capital Corp.; CCO Fiberlink, LLC; CCO Holdings Capital Corp.; CCO NR Holdings, LLC; CCO Purchasing, LLC; Charter Advertising of Saint Louis, LLC; Charter Cable Leasing of Wisconsin, LLC; Charter Cable Operating Company, L.L.C.; Charter Cable Partners, L.L.C.; Charter Communications Entertainment, LLC; Charter Communications Entertainment I, DST; Charter Communications Entertainment II, LLC; Charter Communications Holdings Capital Corporation; Charter Communications Operating Capital Corp.; Charter Communications Properties LLC; Charter Communications V, LLC; Charter Communications Ventures, LLC; Charter Communications VI, LLC; Charter Communications VII, LLC; Charter Communications, LLC; Charter Distribution, LLC; Charter Fiberlink — Alabama, LLC; Charter Fiberlink AR- CCVII, LLC; Charter Fiberlink AZ- CCVII, LLC; Charter Fiberlink CA -CCO, LLC; Charter Fiberlink CA- CCVII, LLC; Charter Fiberlink CC VIII, LLC; Charter Fiberlink CCO, LLC; Charter Fiberlink CT -CCO, LLC; Charter Fiberlink— Georgia, LLC; Charter Fiberlink ID- CCVII, LLC; Charter Fiberlink— Illinois, LLC; Charter Fiberlink IN -CCO, LLC; Charter Fiberlink KS -CCO, LLC; Charter Fiberlink LA -CCO, LLC; Charter Fiberlink MA -CCO, LLC; Charter Fiberlink — Michigan, LLC; Charter Fiberlink — Missouri, LLC; Charter Fiberlink MS- CCVI, LLC; Charter Fiberlink NC -CCO, LLC; Charter Fiberlink NC- CCVII, LLC; Charter Fiberlink — Nebraska, LLC; Charter Fiberlink NH -CCO, LLC; Charter Fiberlink NM -CCO, LLC; Charter Fiberlink NV- CCVII, LLC; Charter Fiberlink NY -CCO, LLC; Charter Fiberlink NY- CCVII, LLC; Charter Fiberlink OH- CCO, LLC; Charter Fiberlink OK- CCVII, LLC; Charter Fiberlink OR- CCVII, LLC; Charter Fiberlink SC- CCO, LLC; Charter Fiberlink SC- CCVII, LLC; Charter Fiberlink — Tennessee, LLC; Charter Fiberlink TX- R E 14395948. to remit and pay certain sales, use, franchise, and other taxes, as well as fees for licenses, permits, and other similar charges and assessments and (b) authorizing and directing banks and other financial institutions to receive, process, honor, and pay checks presented for payment and electronic payment requests relating to the foregoing; and upon the First Day Declaration; it appearing that the relief requested is in the best interests of the Debtors' estates, their creditors and other parties in interest and that the relief requested is necessary to avoid immediate and irreparable harm; the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334; consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. § 157(b); venue being proper before this court pursuant to 28 U.S.C. §§ 1408 and 1409; notice of the Motion having been adequate and appropriate under the circumstances; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED 1. The Motion is granted as set forth herein on a final basis. 2. The Debtors are authorized, but not required, to pay and remit to various taxing, licensing and regulatory Authorities (a) taxes, including, but not limited to, sales, use, franchise CCO, LLC; Charter Fiberlink UT- CCVII, LLC; Charter Fiberlink VA -CCO, LLC; Charter Fiberlink VT -CCO, LLC; Charter Fiberlink WA -CCVIL LLC; Charter Fiberlink— Wisconsin, LLC; Charter Fiberlink WV -CCO, LLC; Charter Fiberlink, LLC; Charter Gateway, LLC; Charter Helicon, LLC; Charter Investment, Inc.; Charter RMG, LLC; Charter Stores FCN, LLC; Charter Video Electronics, Inc.; Dalton Cablevision, Inc.; Enstar Communications Corporation; Falcon Cable Communications, LLC; Falcon Cable Media, a California Limited Partnership; Falcon Cable Systems Company 11, L.P.; Falcon Cablevision, a California Limited Partnership; Falcon Community Cable, L.P.; Falcon Community Ventures I, LP; Falcon First Cable of the Southeast, Inc.; Falcon First, Inc.; Falcon Telecable, a California Limited Partnership; Falcon Video Communications, L.P.; Helicon Partners 1, L.P.; HPI Acquisition Co., L.L.C.; Interlink Communications Partners, LLC; Long Beach, LLC; Marcus Cable Associates, L.L.C.; Marcus Cable of Alabama, L.L.C.; Marcus Cable, Inc.; Midwest Cable Communications, Inc.; Peachtree Cable TV, L.P.; Peachtree Cable T.V., LLC; Renaissance Media LLC; Rifkin Acquisition Partners, LLC; Robin Media Group, Inc.; Scottsboro TV Cable, Inc.; Tennessee, LLC; The Helicon Group, L.P.; Tioga Cable Company, Inc.; and Vista Broadband Communications, LLC. 3 Because the list of thousands of Authorities is too voluminous to include in this Order, a comprehensive list of the individual Authorities can be obtained at www.kccllc.net/Charter or by contacting Albert Kass at KCC via email at akass @kccllc.com or by phone at (310) 776 -7360. 01 K &E 14395948. and other taxes incurred or collected by the Debtors from their customers on behalf of the Authorities (collectively, the " Taxes ") and (b) fees, licenses, permits and other similar charges and assessments incurred by the Debtors (collectively, the "Fees "), without regard to whether such Taxes or Fees accrued or arose before or after the Petition Date. 3. Nothing in the Motion or this Order, nor as a result of the Debtors' payment of claims pursuant to this Order, shall be deemed or construed as: (a) an admission as to the validity or priority of any claim against the Debtors; (b) a waiver of the Debtors' rights to dispute any claim; or (c) an approval or assumption of any agreement, contract or lease pursuant to section 365 of the Bankruptcy Code. 4. The Debtors do not concede that any liens (contractual, common law, statutory, or otherwise) described in this Motion are valid, and the Debtors expressly reserve the right to contest the extent, validity, or perfection or seek the avoidance of all such liens. 5. The banks and financial institutions on which checks were drawn or electronic payment requests made in payment of the prepetition obligations approved herein are authorized and directed to receive, process, honor and pay all such checks and electronic payment requests when presented for payment, and that all such banks and financial institutions are authorized to rely on the Debtors' designation of any particular check or electronic payment request as approved by this Order. 6. The Debtors are authorized to reissue any check or electronic payment that originally was given in payment of any prepetition amount authorized to be paid under this Order and is not cleared by the applicable bank or other financial institution. 7. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion. W K &E 14395948. 8. Notwithstanding the possible applicability of Bankruptcy Rules 6004(h), 7062, 9014 or otherwise, the terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 9. The requirements set forth in Bankruptcy Rule 6003(b) are satisfied by the contents of the Motion or otherwise deemed waived. 10. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. New York, New York Date: [ 1 , 2009 United States Bankruptcy Judge 4 K &E 1439594& 5 AGREEMENT AN AGREEMENT GRANTING A NON - EXCLUSIVE FRANCHISE RENEWAL TO CHARTER COMMUNICATIONS ENTERTAINMENT II, LLC, TO OPERATE A CABLE TELEVISION SYSTEM IN THE CITY OF ROSEMEAD AND SETTING FORTH CONDIT1014S ACCOMPANYING THE GRANTING OF THE FRANCHISE RENEWAL. u r" _i .. TABLE SECTION 1: GRANT OF FRANCHISE SECTION 2: DEFINITIONS SECTION 3: GENERAL REQUIREMENTS SECTION 4: SERVICE REQUIREMENTS SECTION 5: SYSTEM UPGRADE SECTION 6: CONSTRUCTION AND TECHNICAL STANDARDS SECTION 7: SERVICE AND RATES SECTION 8: TRAINING AND HIRING REQUIREMENTS SECTION 9: REGULATION SECTION 10: SEPARABILITY SECTION 11: FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM SECTION 12: HOLD HARMLESS SECTION 13: ARBITRATION EXHIBIT A: RESERVED FOR COMMERCIAL PLAN EXHIBIT B: SYSTEM UPGRADE CAPABILITIES EXHIBIT C: RESERVED FOR DETAILED UPGRADE PLAN EXHIBIT D: GRANTEE COMMITMENT TO EG ACCESS FACILITIES AND EQUIPMENT EXHIBIT E: FREE PUBLIC BUILDING INSTALLATIONS AGREEMENT THIS AGREEMENT, made and entered into this -_Q Aay of 2000, at Rosemead, California, by and between the City of Rosemead, a municipal corporation of the State of California ( "City" or "Grantor "), and Charter Communications Entertainment II, LLC, a Delaware Limited Liability Corporation, ( "Charter" or "Grantee "). WITNESSETH WHEREAS, the City of Rosemead, pursuant to Chapter 5.28 of the Rosemead Municipal Code ("the Ordinance "), is authorized to grant one or more non - exclusive revocable franchises to operate, construct, maintain and reconstruct a cable television system within the City; and WHEREAS, the City has negotiated with Charter for renewal of the franchise which was granted to Falcon Communications in 1985, and after public hearings, City has determined that it is in the best interest of the City and its residents to grant a franchise renewal to Charter. NOW, THEREFORE, City hereby grants to Charter a cable television franchise in accordance with the provisions of the Ordinance and this Agreement. Rosemead/Charter Franchise Agreement . June 15, 2000 1. GRANT OF FRANCHISE 1.1 Grant. Charter Communications Entertainment II, LLC, d.b.a. Charter Communications, is hereby granted for itself, its successors and assigns, subject to the terms and conditions of this Agreement and the Ordinance, the franchise, authority, right and privilege, for a ten (10) year period from and after the effective date hereof, to construct, operate and maintain a cable television system within the streets and public ways within the City of Rosemead. 1.2 Right of Grantor to Issue Franchise Grantee acknowledges and accepts the right of Grantor to issue a non - exclusive franchise as herein provided. 1.3 Effective Date of Franchise The effective date of the renewal of this franchise shall be the date of execution of this Agreement by Grantor and Grantee. 1.4 Duration The term of the renewal shall be ten (10) years from the effective date hereof at which time it shall expire and be of no force and effect. Renewal at the expiration of said term, if any, shall be in accordance with the Ordinance, as amended, subject to state and federal law. 1.5 Franchise Not Exclusive This franchise shall not be construed as any limitation upon the right of Grantor, through its proper officers, to grant to other persons or corporations rights, privileges and authority similar to or different from the rights, privileges and authority herein set forth, in the same or other streets and public ways or public places by franchise, permit or otherwise; provided, however, that such additional grants shall not operate to materially modify, revoke or terminate any rights granted to Grantee herein. Rosemead /Charter Franchise Agreement -2- June 15, 2000 1.6 Franchise Acceptance The Grantee and its parents, subsidiaries and affiliates, by executing this Agreement, guarantee performance by Grantee of all of Grantee's obligations hereunder imposed by the Ordinance and this Agreement. 2. For the purpose of this Agreement, the following words, terms, phrases, and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. The definitions contained in the Ordinance are incorporated herein as if fully set forth. In case of conflict, these definitions shall prevail. 2.1 " Agreement " or " Franchise Agreement or " Franchise Renewal Agreement means this agreement and any amendments or renewals thereof. 2.2 " Grantee " or " Charter " means Charter Communications Entertainment II, LLC, or any person or entity whom or which succeeds Charter in accordance with the provisions of this franchise and the Ordinance. 2.3 " Grantor " or "LLty" means the City of Rosemead or its delegate acting within the scope of its jurisdiction. 2.4 " Initial Service Area means all residential housing units in the City of Rosemead which are within 200 feet of an existing portion of the Cable System. 2.5 " Section " means any section, subsection or provision of this franchise agreement. Rosemead /Charter Franchise Agreement -3- June 15, 2000 3. GENERAL REQUIREMENTS 3.1 Governing Requirements Grantee shall comply with the requirements of this Agreement and the Ordinance and all provisions of state and federal law. In the event of any conflict between this Agreement and the Ordinance, any mandatory provisions of the Ordinance in effect at the time of the adoption of a franchise agreement shall control; however, the franchise agreement shall control as to any definitions and as to any optional provisions. (Optional provisions include provisions which state "to the extent or if provided for in the franchise agreement. ") If the Ordinance provides for an optional provision but the franchise agreement is silent as to that provision, then the provision shall be deemed not applicable to the franchise agreement. Amendments to the Ordinance shall not affect any franchise agreement entered into prior to the effective date of the amendment, unless required or permitted to be effective earlier pursuant to applicable state or federal law, or both parties to the franchise agreement also amend the agreement to incorporate the provisions of the amended ordinance. 3.2 Franchise Fee The Grantee shall pay to the Grantor an annual franchise fee of five percent (5 %) of Gross Revenue as defined in the Ordinance. 3.3 Pavment of Franchise Fees Franchise fees shall be payable quarterly, within thirty (30) days following the quarter for which payment is due. 3.4 Recovery of Processing Costs Within sixty (60) days after receipt from Grantor of a written itemization, Grantee shall reimburse Grantor for its reasonable costs incurred during the franchise renewal /franchise transfer process not to exceed the sum of Ten Thousand Dollars ($10,000). Such reimbursement will not be passed through to subscribers. Rosemead /Charter Franchise Agreement -4- June 15, 2000 3.5 Pavment to Grantor No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the Grantor may have for further or additional sums payable under the provisions of this Agreement. All amounts paid shall be subject to audit and recomputation by the Grantor. 3.6 Insurance (a) Grantee shall procure and maintain for the duration of the Franchise, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the operation of the Franchise by the Grantee, its agents, representatives, employees or subcontractors. (b) Grantee shall maintain limits no less than: (1) General Liability: Two Million Dollars ($2,000,000) per occurrence for bodily personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Franchise or the general aggregate limit shall be twice the required occurrence limit. (2) Automobile Liability: One Million Dollars ($1,000,000) per person, two Million Dollars ($2,000,000) per accident for bodily injury and property damage. (3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (c) Any deductibles or self - insured retentions must be declared to and approved by Grantor. At the option of the Grantor, the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects Grantor, its officers, officials, employees and Rosemead /Charter Franchise Agreement -5- June 15, 2000 volunteers or the Grantee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. (d) The general liability and automobile liability policies are to contain all the following provisions: (1) Grantor, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects to any liability arising out of activities performed by or on behalf of Grantee; products and completed operations of Grantee; premises owned, occupied or used by Grantee; or automobiles owned, leased, hired or borrowed by Grantee. The coverage shall contain no special limitations on the scope of protection afforded to Grantor, its officers, officials, employees, agents or volunteers, and shall name Grantor as additionally insured. (2) For any claim related to this Agreement, Grantee's insurance coverage shall be primary insurance as respects Grantor, its officers, officials, employees, agents and volunteers. Any insurance or self - insurance maintained by Grantor, its officers, officials, employees, agents or volunteers shall be excess of Grantee's insurance and shall not contribute with it. (3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to Grantor, its officers, officials, employees, agents or volunteers. (4) Grantee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Rosemead /Charter Franchise Agreement -6- June 15, 2000 (5) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to Grantor. (6) Insurance shall be placed with insurers which are "admitted" in the State of California and have a current A.M. Best's rating of no less than A: VII, unless otherwise acceptable to the Grantor. (7) Grantee shall furnish the Grantor with original endorsements effecting coverage required by this section. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by Grantor. All endorsements are to be received and approved by Grantor before activity commences. (e) Grantor reserves the right to adjust the limit coverage requirements no more often than every three (3) years. Any such adjustment by the Grantor will be no greater than the increase in the Los Angeles Metropolitan Area Consumer Price Index (all consumers) for such three (3) year period. (f) Grantee shall submit to Grantor documentation of the required insurance including a certificate of insurance signed by the insurance agent and companies named, as well as all properly executed endorsements. (g) Grantee hereby indemnifies Grantor for any damage resulting to it from failure of either Grantee or any subcontractor to take out and maintain such insurance. Rosemead /Charter Franchise Agreement -7- June 15, 2000 3.7 Indemnification (a) Grantee shall indemnify, hold harmless, release and defend Grantor, its officers, employees and agents from and against any and all actions, claims, demands, damages, disability, losses, expenses including attorney's fees and other defense costs or liabilities of any nature that may be asserted by any person or entity including Grantee from any cause whatsoever arising from the activities of Grantee, its subcontractors, employees and agents hereunder. Grantee shall be solely responsible and save Grantor harmless from all matters relative to payment of Grantee's employees including compliance with Social Security, withholding, etc. (b) This indemnification obligation is not limited in any way by a limitation on the amount or type of damages or compensation payable by or for Grantee under Workers' Compensation, disability or other employee benefit acts, acceptance of insurance certificates required under this Agreement, or the terms, applicability or limitations of any insurance held by Grantee. (c) Grantor does not, and shall not, waive any rights against Grantee which it may have by reason of this indemnification, because of the acceptance by Grantor, or the deposit with Grantor by Grantee, of any of the insurance policies described in this Section. (d) This indemnification by Grantee shall apply to all damages and claims for damages of any kind suffered by reason of any of the aforesaid operations referred to in this Section, regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. (e) Grantee shall not be required to indemnify Grantor for negligence or misconduct on the part of Grantor or its officials, boards, commissions, agents, or employees Rosemead /Charter Franchise Agreement -8- June 15, 2000 (hereinafter "such acts "). Grantor shall hold Grantee harmless from any damage resulting from any such acts of the Grantor or its officials, boards, commissions, agents or employees in utilizing any government or educational access channels, equipment, or facilities and for any such acts committed by Grantor in connection with work performed by Grantor and permitted by this Agreement, on or adjacent to the Cable System. 3.8 Securi . Grantee shall maintain with Grantor a letter of credit and a faithful performance bond in accordance with the Ordinance. 4. SERVICE REQUIREMENTS 4.1 General The Grantee shall meet or exceed all the material construction and service requirements set out in this franchise agreement. It is the Grantor's intent that Grantee shall not be penalized for minor breaches of the terms hereof so long as its best efforts are maintained. 4.2 Residential Service Grantee shall offer all of its Cable Service to every residence in the Initial Service Area in accordance with the terms of this Agreement and the Cable Ordinance. 4.3 Residential Service Extension Grantee shall extend the Cable System at its sole cost and expense in accordance with this Agreement and the Cable Ordinance. If, during the term of this Agreement, new residences are constructed in an area of the City adjacent to, but outside of, Grantee's Initial Service Area, Grantee shall extend its plant to provide service to those residences to. the extent required by the Cable Ordinance and this Agreement. Grantee shall in all cases provide a service drop of 200 feet or less to residential Subscribers at no more than Grantee's standard installation price. Service drops of more than 200 feet shall be Rosemead /Charter Franchise Agreement -9- June 15, 2000 provided at a cost equal to Grantee's standard installation price plus Grantee's actual cost (limited to time and materials expended) for the portion of the drop extending beyond 200 feet. 4.4 Multiple Dwelling Units Grantee agrees that it shall offer Cable Service to all multiple dwelling units located within the City, including without limitation all apartments, convalescent hospitals, retirement homes and similar housing structures or institutions. Subject to the conditions stated in this Agreement and the Cable Ordinance, and other requirements mandated by law, if any, Grantee shall offer all such Subscribers Cable Services on the same terms and conditions that such services are offered to single family residences, and shall provide service extension to the structure (but not to individual units) on the same terms and conditions defined in paragraph 4.3 immediately above. 4.5 Specified Service Extension Grantee shall, at its sole cost and expense, extend the Cable System and provide one service drop (regardless of length) to the structure (but not to individual units) of each and every multiple dwelling unit in the City, provided that the owner of the structure provides service consents as reasonably required by Grantee. 4.6 Commercial, Industrial and Non - Residential Service Grantee shall offer Cable Service to all commercial, industrial, and non - residential customers on the following terms: Within ninety (90) days following a request for service from any potential commercial, industrial or non - residential customer (or group of customers), Grantee shall (i) provide the potential customer(s) requesting service with a written estimate of the costs of providing such customer(s) with service, and (ii) offer to provide such customer(s) with service, provided, however, that the customer(s) shall elect to either: (a) agree to pay Grantee's actual costs (limited to time and materials expended) of extending the Cable System to such customer, or Rosemead /Charter Franchise Agreement -10- . June 15, 2000 (b) enter into a contract which will reasonably assure adequate revenues to provide Grantee with recovery of the full costs and expenses of constructing and operating any required line extension. Grantee shall provide the City with one (1) copy of the written cost estimates and any terms of agreement proposed with each such potential customer. 4.7 Commercial/Industrial Service E xtension . Within one (1) year of the Effective Date, Grantee shall prepare and submit for approval by the City a plan for extending the Cable System at Grantee's sole costs and expense to provide Cable Service to all commercial and industrial areas of the City ( "Commercial Plan"). The Commercial Plan shall provide a schedule of appropriate milestones for extending the Initial Service Area with the goal of providing Cable Service to all non - residential areas within five (5) years of the Effective Date. In developing such a plan, Grantee shall take into account the City's existing and anticipated non - residential needs for Cable Services (and related communications services), any plans that the City discloses respecting planned development of its non - residential areas, and the cost and efficiencies of extending the Cable System to such areas. The plan shall also identify any proposed terms and conditions to be imposed upon non - residential subscribers that are additional to or different from those that pertain to other subscribers in the City, if any, which terms and conditions shall be reasonable. To the extent that Grantee demonstrates in such plan that it is not technically or economically feasible to provide Cable Service to any particular area, then Grantee may propose in its plan that such service not be provided to such area. Grantee shall submit the Commercial Plan for approval by the City, which approval shall not be unreasonably denied. Upon approval, the plan shall be filed as Exhibit "A" to this Agreement and become a part hereof. Rosemead /Charter Franchise Agreement -11- June 15, 2000 4.8 Undererounding of Cable Grantee shall install its cables underground where all other utilities are underground. and shall convert its aerial plant to underground in concert with other utilities, at its cost except when a utility conversion assessment district is formed, in which case, Grantee shall participate only when it receives a pro -rata share of funds from the district. 5. SYSTEM UPGRADE 5.1 1 Jpgrade of the Cable Svstem Grantee has recently completed an upgrade of the existing Cable System ( 41 1998 Upgrade ") to provide a system with the capabilities described in Exhibit `B" attached hereto. Attached to this Agreement as Exhibit "C" is a detailed plan of the system upgrade. Said plan includes the following: (1) equipment specifications and design performance criteria; (2) a system map which delineates any expansions of the prior Service Area and the reasons for not serving any areas in the City, and (3) a schedule for implementing the specific new service milestones contemplated by this Agreement. Grantee's maps (submitted with its upgrade plan), using standard industry designations, shall at a minimum disclose (i) cable routes; (ii) locations and identifications of aerial and above and below ground appurtenances (such as risers, vaults, pedestals and power supplies) and (iii) physical locations and identifications of system components. including but not limited to, cables and active and passive electronics. Grantee need not disclose the electrical values of its taps, splitters or directional couplers; however, the City shall have the right to review such materials at Grantee's office. Rosemead/Charter Franchise Agreement 12_ June 15, 2000 The City shall have the sole discretion to approve all plans, to assure that they are consistent with applicable statutes, ordinances, codes, regulations, determinations and rulings, including without limitation the Rosemead Municipal Code, zoning ordinances and traffic safety standards. Where plans and specifications are not in compliance with such statutes, ordinances, codes, regulations, determinations and rulings, Grantee shall modify or revise such plans and specifications so as to achieve such compliance. Grantee must comply with the requirements of applicable State and local statues, ordinances, codes and regulations governing the location of subsurface installations, including without limitation the provision of Section 4216 et sec . Of the California Government Code, with respect to notification to or from a regional notification center (such as Underground Service Alert) concerning proposed excavation work. If, after construction, the City determines that the planned placement of specific equipment by Grantee may cause a negative aesthetic impact, then Grantee will make reasonable efforts to minimize such an impact within technical design constraints. Notwithstanding approval of any plans, nothing in this Agreement or in the Cable Ordinance shall be construed as a license, right or privilege granted by the City to use any public right -of- way for any purpose other than the provision of cable television services. 5.2 Pro¢ram Orieination Points Grantee shall establish upon completion of the 1998 Upgrade, an origination point from Rosemead City Hall and from the Emergency Operations Center, or other mutually - agreeable locations that will permit live character - generated programming and live and /or pre- recorded video programming to originate at such locations on access channels controlled and programmed by the City or its designee. Grantee shall provide, install and maintain at no charge all necessary modulators, demodulators and associated electronic equipment and all necessary transmission paths (via cable or other Rosemead /Charter Franchise Agreement -13- June 15, 2000 suitable technology) from the said locations to the system headend and downstream on the basic service access channels. Grantee shall establish at no charge, all necessary equipment and paths to provide Community College programming to Rosemead subscribers through Pasadena City College or other agreed programming provider. 5.3 Emergencv Alert Svstem Grantee shall provide and maintain throughout the term of this Agreement the system capability to transmit an emergency alert signal to all participating subscribers, consistent with Federal Communications Commission requirements or, if there are no such requirements, in the form of an audio override capability to permit the City to interrupt and cablecast an audio message on all channels simultaneously in the event of disaster or public emergency declared under federal or state law or under the City's Municipal Code. This system shall be activated via a telephone call to Grantee's unlisted telephone number or by other suitable means and shall be designed to permit the introduction of an emergency video crawl on all channels. Grantee shall provide a written protocol for using such system within sixty (60) days of the Effective Date. 5.4 Emergency Power and Standby Power Grantee shall provide and maintain throughout the term of this Agreement a generator and an automatic transfer switch at its headquarters to allow for emergency powering of the headend electronics in event of local power outage. Standby power supplies shall also be installed on all major trunk and subtrunks to provide emergency power within the standard limits of commercially available power supply units. The emergency and standby power supplies shall be maintained and routinely tested by Grantee as appropriate. 5.5 Addressable Technoloev Grantee shall, in its development of an upgrade plan, provide for the use of addressable technology in the delivery of its programming services. Rosemead/Charter Franchise Agreement -14- June 15, 2000 Grantee shall make good faith efforts to provide equipment when available which allows for the use of the special features of consumer electronics equipment such as "picture -in- picture" and "watch- and - record" and other common VCR and TV functions in a "user- friendly" manner. 5.6 Dieital Technoloev Grantee shall establish and maintain the capability throughout the entire Cable System to transmit information digitally. Grantee shall nonetheless continue to transmit current channels and services in analog form unless otherwise agreed between the City and Grantee in accordance with practices in neighboring cable systems. It is anticipated that, upon completion of the upgrade, Grantee will transmit some channels and services in a digital format. Grantee shall provide the necessary equipment to decode all such digital signals transmitted on the Cable System. 5.7 Two -Wav Capability The Cable System shall have the capability throughout the entire system to transmit video, voice and /or data services in two directions simultaneously with the additions of return modules. Two -way services shall be instituted when (i) it is consistent with federal and state laws, and (ii) it is economically and technically feasible, provided, however, that it shall be Grantee's burden to demonstrate to the City's satisfaction that it is not economically or technically feasible to institute such service. 5.8 Cable Modems Grantee shall establish the capability throughout the entire Cable System for subscribers to utilize cable modems to attain connections to the Internet for an additional fee. Grantee may supply cable modems to subscribers for a monthly rental fee or shall permit subscribers to utilize their own cable modems if permitted by federal law. If franchising authorities are permitted to require that cable television franchisees provide open Rosemead /Charter Franchise Agreement -15- June 15, 2000 access by Internet Service Providers to provide intemet service utilizing the franchisee's cable system. Grantee shall permit open access to the fullest extent permi tied by law. 5.9 Interconnection Upon Grantor request, Grantee shall negotiate in good faith to interconnect the cable television system with neighboring cable systems in the future, with consideration for technical and economic concerns. Grantee shall keep Grantor advised of negotiations. Notwithstanding the above, Grantee is committed to, and shall, interconnect the cable system with all cable systems operated by Grantee or its affiliates in the San Gabriel Valley area. Grantee shall provide a fiber optic interconnection of the Rosemead hub and the Grantee's studio facility in the City of Alhambra. 5.10 Status Monitoring Grantee shall provide an automatic status monitoring system or functional equivalent when the Cable System has been activated for interactive service, provided that such status monitoring is technically and economically feasible. 5.11 Parental Control Lock Grantee shall provide subscribers, upon request, with a parental control locking device or digital code that permits inhibiting the viewing of premium channels. 5.12 Right of Inspection The City shall have the right to inspect all construction, reconstruction or installation work performed subject to the provision of the Franchise and other applicable law. Rosemead /Charter Franchise Agreement -16- dune 15, 2000 6. CONSTRUCTION AND TECHNICAL STANDARDS 6.1 Construction Standard (A) Compliance with Safety Cod All construction practices shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970 and any amendments thereto as well as all state and local codes where applicable. (B) Com liance with Electrical Codes All installation of electronic equipment shall be of a permanent nature, durable and installed in accordance with the provisions of the National Electric Safety Code as amended. (C) Antennas and Towers Antenna supporting structures (towers) shall be designed for the proper loading zone as specified in R.S. -22A Specifications. (D) Compliance with Aviation Requ irements Antenna supporting structures (tower) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local codes and regulations. (E) Co nstruction Standards and Requi rements All of the Grantee's plant and equipment, including but not limited to the antenna site, head -end and distribution system, towers, house connections, structures, poles, wire, cable, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements the City may deem proper to make, or to -17_ June 15, 2000 RosemeadlCharter Franchise Agreement interfere in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic on City properties. (F) Safety, Nuisance. Requirements The Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. 6.2 Network Technical Requirements The Cable System shall be upgraded as needed to meet or exceed the technical specifications and capabilities of systems operated by the Grantee in neighboring communities and operated so as to meet the following general objectives: (1) Capable of continuous twenty-four (24) hour daily operation; (2) Capable of operating over an outdoor temperature range of -20 degrees F to +120 degrees F without catastrophic failure or irreversible performance changes over variation in supply voltages from 105 to 130 volts AC; (3) Capable of meeting all specifications as set forth herein over an outdoor temperature range of 0 degrees F to +120 degrees F over variations in supply voltages from 105 to 130 volts AC; (4) Operated in such a manner as to avoid causing interference with reception of off -the -air signals by non- subscribers to the network; (5) Designed, installed and operated in accordance with FCC rules and regulations and industry standards so as to assure the delivery to all subscribers of video and audio signals without noticeable degradation directly attributable to the performance of the cable system. _18_ June 15, 2000 Rosemead /Charter Franchise Agreement 6.3 Performance Monitorine Test procedures used in verification of the performance criteria set forth herein, if not as set forth in paragraph 76.609, Subpart K of the FCC Rules and Regulations, shall be in accordance with good engineering practice and shall be fully described in an attachment to the annual certificate filed upon request with the City. To the extent that the report of measurements as required above may be combined with any reports of measurements required by the FCC or other regulatory agencies, the City shall accept such combined reports, provided that all standards and measurements herein or hereafter established by the City are satisfied. At any time after commencement of service to subscribers the City may require additional tests, full or partial repeat tests, different test procedures, or tests involving a specific subscriber's terminal. Requests for such additional tests will be made on the basis of complaints received or other good faith evidence indicating an unresolved controversy or significant non - compliance by the Grantee, and such tests will be limited to the particular matter in controversy. The City will endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to Grantee or to the subscriber. 6.4 Favored Nations in the event Grantee shall enter into any other cable television franchise with other cities in the San Gabriel Valley of Los Angeles County providing for technological improvements or upgrade or special customer services not currently available or planned to be available in the City, Grantee shall notify the City of same within thirty (30) days of the effective date of the other franchise. 19- June i0, 2000 Rosemead /Charter Franchise Agreement Following notification, discussion and agreement between Grantor and Grantee about the desired improvements, Grantee shall submit a schedule for providing these system enhancements; provided, however, that Grantee is able to recoup its costs in a manner consistent with the terms agreed Upon in the other communities. The City may grant extensions, where necessary, upon application by the Grantee, which shall demonstrate cause for the extension. 6.5 Street Occupancy Grantee shall utilize existing poles, conduits and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities whether on public property or on privately -owned property until the written approval of the City is obtained, which approval shall not be unreasonably withheld. However, no location of a ny pole or wire holding structure of the Grantee shall be a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall notify the City at least ten (10) days prior to the intention of the Grantee to commence any construction in any streets. The City shall cooperate with the Grantee in granting any permits required, providing such grant and subsequent construction by the Grantee shall not unduly interfere with the use of such streets and that proposed construction shall be done in accordance with the pertinent provisions of the resolutions of the City. All transmission lines, equipment and structures shall be so installed and located as to cause minimum interference with the rights and reasonable convenience of property owners and at all times, shall be kept and maintained in a safe, adequate and substantial condition, and in good order and repair. The Grantee shall, at all times, employ ordinary care and shall install -20- June 15, 2000 RosemeadlCharter Franchise Agreement and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. Suitable barricades, flags, lights,'flares or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. Any poles or other fixtures placed in any public way by the Grantee shall be so placed with the approval of the City Engineer in such a manner as not to interfere with the usual travel on such public way. Grantee shall, at its own expense, and in a manner approved by the City, restore to City standards and specifications any damage or disturbance caused to the public way as a result of its operations or construction on its behalf. Whenever, in case of fire or other disaster, it becomes necessary in the judgment of the Fire Chief or the Police Chief to remove any of the Grantee's facilities, no charge shall be made by the Grantee against the City for restoration and repair, unless such actions result from the negligence, gross negligence or willful disregard by the City. Grantee or its designee shall have the authority to trim trees on public property at its own expense as may be necessary to.protect its wires and facilities, subject to the supervision and direction of the City. Trimming of trees on private property shall require consent of the property owner or a court order. The Grantee at its expense shall protect, support, temporarily disconnect, relocate, or remove any property of Grantee when, in the opinion of the City the same is required by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power line, signal line, transportation facilities, tracks, or any other types of structure or improvements by governmental agencies whether acting in a governmental or a proprietary capacity, or any Rosemead /Charter Franchise Agreement -21- June 15, 2000 other structure or public improvement, including but not limited to movement of buildings, urban renewal and redevelopment, and any general program under which the City shall undertake to cause all such properties to be located beneath the surface of the ground. The Grantee shall in all cases have the privilege, subject to the corresponding obligations, to abandon any property of Grantee in place. Upon failure of Grantee to commence, pursue or complete any work required by law or by the provisions of this Resolution to be done in any street, within the time prescribed and to the satisfaction of the City, the City may, at its option, cause such work to be done and the Grantee shall pay to the City the cost thereof in the itemized amounts reported by the City to Grantee within thirty (30) days after receipt of such itemized report. 7. SERVICE AND RATES 7.1 ProQramminc and Services Grantee shall provide Grantor with a list of programming and other services offered, which list shall be updated each time a change is made. Grantee shall not reduce the number of program services offered or eliminate any service without thirty (30) days prior '.vritten notice to the Grantor and System subscribers. 7.2 Leased Channel Service Grantee shall offer commercial leased access on reasonable terms and conditions and in accordance with applicable law. 73. Office and Phone The Grantee shall comply with the Ordinance regarding handling of customer complaints, repairs, maintenance and service requests. RosemeatllCharter Franchise Agreement -22_ June 15, 2000 7.4 Senior Citizen Discount Low income residents whose head of household is sixty -five years of age or older shall be entitled to receive a ten percent (10 %) discount on expanded basic cable television service, or for such residents who subscribe to limited basic service only, a twenty -five percent (25 %) discount on their limited basic television service bill. Low income status shall be determined by the City based upon the criteria utilized by the City in determining entitlement to discounted trash pickup service. 7.5 Notification of Service Procedures The Grantee shall furnish each subscriber at the time service is installed, written instructions that clearly set forth procedures and furnish information concerning the procedures for making inquiries or complaints, including the Grantee's name, address and local telephone number. Grantee shall give the City thirty (30) days prior notice of any rate increases, channel lineup or other substantive service changes. 7.6 Rate Revision To the extent that Federal or State law or regulation may now, or hereafter be amended to, authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by Grantee, the City shall have the right to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the City. If and when exercising rate regulation, the City shall abide by the terms and conditions set forth by the FCC. Rosemead /Charter Franchise Agreement 23- June 15.2000 8. TRAINING AND EMPLOYMENT REQUIREMENTS 8.1 Equal Employment Opportunity Throughout the term of the franchise. Grantee shall conduct its business as an Equal Employment Opportunity Employer. In addition, throughout the term of the franchise, the Grantee shall maintain a policy that all employment decisions, practices and procedures are based on merit and ability without discrimination in violation of state or federal law on the basis of an individual's race, color, religion, age, sex, national origins, or physical or mental handicap. The Grantee's policy shall apply to all employment actions including advertising, recruiting, hiring, promotion, transfer, remuneration, selection for training, company benefits, disciplinary action, lay -off and termination. The Grantee shall carry out this policy through continued dedication to a determined and sustained effort to provide equal employment opportunities to all. 8.2 Transfers and Assiunment The Cable System and the Franchise granted hereunder shall not be assigned or transferred, either in whole or in part, or leased, or sublet in any manner, nor shall title thereto, either legal or equitable or any right, interest or property therein, pass to or vest in any person without the prior written consent of the City. The proposed assignee must show technical ability, financial capability, legal qualifications and general character qualifications as determined by the City Council and must agree to comply with all provisions of the Franchise except that no City consent shall be required for a transfer in trust, mortgage or other hypothecation as a whole or part to secure an indebtedness of Grantee nor shall City consent be required for changes in the structure of the corporations comprising the joint venture or partnership so long as Grantee's existing principal partners remain the principal provider of the services hereunder, nor shall City consent be required if Charter is dissolved or redistributed. The City Council shall be deemed to have consented to Rosemead /Charter Franchise Agreement -24- June 15, 2000 a proposed transfer or assignment in the event its refusal to consent is not communicated in writing to Grantee within the time provided by federal law following receipt of written notice of the proposed transfer or assignment. Such consent shall not unreasonably be withheld. 83 Grantee shall promptly notify the City Council of any actual or proposed change in, or transfer o£ or acquisition by any other party of, control of Grantee. The word "control" as used herein is actual management control in whatever manner exercised. Every change, transfer, or acquisition of control of Grantee except as herein provided, shall make the franchise subject to cancellation unless and until the City Council shall have consented thereto, which consent will not unreasonably be withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the City Council may inquire into the qualifications of the prospective controlling party and Grantee shall assist the City Council in any such inquiry. 8.4 A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation by any person or group of persons of 10% of the General Partnership interests of Grantee. 8.5 The`consent or approval of the City Council to any transfer of the Franchise shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall by its terms, be expressly subordinate to the terms and conditions of this Franchise Agreement. 8.6 In no event shall a transfer of ownership or control be approved without the successor in interest becoming a signatory to this Franchise Agreement. -25_ June 15, 2000 Rosemead /Charter Franchise Agreement 8.7 Notwithstanding the foregoing, Grantee may shift ownership for tax purposes where there is no actual change in equitable ownership interests upon notice to Grantor not less than thirty (30) days prior to the change. 9. REGULATION 9.1 Franchise Regulation The franchise granted under this Agreement shall be subject to regulation by Grantor in accordance with the provisions of the Ordinance as limited by state and federal law. Grantor, may, at its sole option, enter into joint regulatory agreements with other Grantors in adjacent jurisdictions served by the same cable system. 9.2. Remedies for Franchise Violations (a) In addition to the remedies for delays in construction as specified in the Ordinance, Grantor reserves the right to impose the following remedies in the event Grantee violates any other material provision of the franchise, provided that Grantee has not commenced corrective action within thirty (30) days written notice by certified or registered mail to the general manager of the Grantee: (1) Impose liquidated damages, not to exceed One Thousand Dollars ($1,000) per day per incident, for Grantee's violation of the franchise or failure to take corrective action with respect to a violation of any provision of the franchise. The parties agree that in the case of a franchise violation, it would be impracticable to fix the amount of actual damages and the amount calculated in accordance with this paragraph is presumed to be the amount of damage sustained by the City and its residents in accordance with Section 1671 of the California Civil Code. Rosemead /Charter Franchise Agreement -26- June 15, 2000 (2) Require Grantee to make rate rebates or payments to the customers or classes of customers in such amount and on such basis as Grantor may deem reasonable. (3) Require Grantor to correct or otherwise remedy the violation prior to any rate increase becoming effective. (b) In the event the stated violation is not reasonably curable within sixty (60) days, the franchise will not be terminated or revoked or a remedy imposed pursuant to the Ordinance if the Grantee provides, within the said sixty (60) days, a plan, satisfactory to the Grantor, to remedy the violation and continues to demonstrate good faith in seeking to correct said violation. (c) In determining which remedy or remedies for Grantee's violation are appropriate, Grantor shall take into consideration the nature of the violation, the persons or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further such violations and such other matters as the Grantor may deem appropriate; provided, however, that adequate remedies must be imposed if service is in any way materially lessened, or if any material provision of this franchise is not complied with. (d) Within ten (10) days after receipt of a written notice of a violation from Grantor, Grantee may request a hearing before a Grantor - designated hearing officer in a full public proceeding affording due process. Such hearing shall be held within thirty (30) days of the receipt of the request therefore. If Grantee is found to be culpable, Grantee may be assessed City's costs reasonably incurred in conducting the hearing. Rosemead /Charter Franchise Agreement - - 27- June 15, 2000 10. SEPARABILITY 10.1 If any material section of the Ordinance, and /or this Agreement, as determined by the Grantor, are held to be invalid or preempted by federal or state regulations or laws, the Grantor shall negotiate with Grantee appropriate modifications to this Agreement to provide reasonable relief from such invalidity or preemption. If the parties are unable to reach agreement on such modifications; and if in Grantor's opinion Grantor may be bound legally with respect to arbitration of the specific dispute, then the dispute will be submitted to an arbitrator, in accordance with California law, who will determine what modifications are appropriate and the arbitrator's decision shall be binding on the parties. 11. FORCE MAJEURE: GRANTEE'S INABILITY TO PERFORM 11.1 In the event Grantee's performance of any of the terms, conditions, obligations or requirements of this franchise or the Ordinance is prevented or impaired due to any cause bevond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided Grantee has notified Grantor in writing within thirty (30) days of its discovery of the occurrence of such an event. Such causes beyond Grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to: unusually severe weather, such as wind, flood, lightning; or natural disasters, such as fire, earthquake or volcanic eruption; or war, riots, civil disturbances; all strikes or similar work stoppages; failure or the threat of failure of utility poles, satellites, and similar equipment; restraint by order of a court or other public authority; or an action or nonaction by or inability to obtain any necessary authorization or approval required from any governmental agency, authority or public utility, or agent Rosemead /Charter Franchise Agreement -28- June 15. 2000 thereof, which by exercise of reasonable due diligence and foresight the party could not reasonably have avoided or expected to avoid and which by exercise of the diligence is unable to overcome. 12. HOLD HARMLESS 12.1 The Grantee on behalf of itself, its successors and assigns, shall defend, indemnify and hold harmless the Grantor, its officers, boards, commissions, agents and employees, and each of them, against and from any and all claims, demands, actions, suits, liabilities and judgments of every kind and nature and regardless of the merits of the same, arising out of or related to the exercise or enjoyment of the franchise granted pursuant to this Agreement and the Ordinance, including costs of investigations, attorneys' fees and court costs in the defense of any actions, to the extent that such claims or demands are alleged to be the result of any error, omission, intentional act or negligent act of Grantee or any persons employed by Grantee, even if that Grantee employee is in error or by misinformation alleged to be from a Grantor employee; however, Grantee shall not be responsible for defending and /or indemnifying, etc., the Grantor for any actions arising from the Grantor's use of the City channel. 13. ARBITRATION 13.1 Grantee and Grantor agree that any disputes arising under this franchise shall be submitted to arbitration in accordance with the rules of the American Arbitration Association and that judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties also agree to the following: _29_ June 15, 2000 Rosemead/Charter Franchise Agreement (a) None of the arbitrators appointed shall possess any direct or indirect interest of any nature whatsoever in any of the parties to the arbitration nor shall any of the arbitrators have been employed by any of such parties for a period of five (5) years preceding the arbitration. (b) Within ten (10) business days from the receipt of notice given by any party that a dispute has risen under this franchise, the parties shall jointly appoint an arbitrator who shall be knowledgeable about the cable television business. If a single arbitrator cannot be agreed upon within said time period, then within five (5) days of the expiration of said ten (10) days period, each of the parties shall select one arbitrator. The sole function of the arbitrators so selected shall be to appoint a neutral third arbitrator who shall thereafter conduct the arbitration. Except for the selection of the neutral arbitrator, the two arbitrators so appointed shall not participate in the arbitration process. If the two arbitrators cannot agree on the third arbitrator within ten (10) business days of the expiration of said five (5) day period, then the neutral arbitrator shall be appointed by the American Arbitration Association. (c) The neutral arbitrator shall be knowledgeable about the cable television business and shall conduct the arbitration, including any hearings, in accordance with the rules of the American Arbitration Association. (d) The rules and regulations of the American Arbitration Association shall govern the arbitration except to the extent they are contrary to the terms of this agreement to arbitrate and except as contrary to the California Code of Civil Procedure, sections 1280 and following. The decision of the arbitrator shall be final and binding on all parties and shall not be subject to appeal or attack except as set forth in California Code of Civil Procedure, section 1286.2. (e) The arbitration shall take place within Southern California. 30- June 15, 2000 Rosemead/Charter Franchise Agreement IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement the date and year first written above. APPROVED AS TO FORM: Robert L. Kress City Attorney CITY OF ROSEMEAD A Municipal Corporation By Margafqt Clark Mayor ATTEST: Nancy Valderrama City Clerk 616 u731"U W". 9[IM[. Rosemead /Charter Franchise Agreement -31- June 15, 2000 ENTERTAINMENT II, LLC EXHIBIT A COMMERCIALANDUSTRIAL SERVICE EXTENSION PLAN (EXHIBIT A IS TO BE GENERATED BY CHARTER WITHIN NINETY DAYS OF THE EFFECTIVE DATE) -32 June 15, 2000 Rosemead/Charter Franchise Agreement EXHIBIT B DESCRIPTION OF UPGRADED CABLE SYSTEM (EXHIBIT B IS TO BE GENERATED BY CHARTER PRIOR TO THE EFFECTIVE DATE) Rosemead /Charter Franchise Agreement -33- June 15, 2000 EXHIBIT C DETAILED PLAN OF SYSTEM UPGRADE INCLUDING SPECIFICATIONS, PERFORMANCE CRITERIA AND MAPS (EXHIBIT C IS TO BE GENERATED BY CHARTER PRIOR TO THE EFFECTIVE DATE) Rosemead /Charter Franchise Agreement -34- June 15, 2000 EXHIBIT D GRANTEE COMMITMENT TO EG ACCESS FACILITIES AND EQUIPMENT Rosemead /Charter Franchise Agreement -35- June 15, 2000 EXHIBIT D: GRANTEE COMMITMENT TO EG ACCESS FACILITIES AND EQUIPMENT 1. INTERCONNECTION OF PUBLIC BUILDINGS Grantor shall connect, at no installation charge, the buildings listed in Exhibit E, to the closest node of the rebuilt Cable System, under the following conditions: (A) An activated one -way (downstream) connection and the highest tier of basic cable service at no installation or monthly charge shall be provided to all public buildings listed in Exhibit "E ". City - Hall shall continue to have four such convertenboxes. Two of. the City. Hall .converter.boxes- shall. provide all channels available on the system for monitoring purposes. 2. CABLE MODEM SERVICE Grantee shall install, at no installation.charge and no monthly fee, cable drops, cable modems and Internet Service at the fastest speed which a subscriber could purchase, in each of the public buildings listed in Exhibit "E." With the exception of City Hall, such cable modems shall not be "networked." If the City Hall cable modem is connected to a network, the City shall reimburse Grantee for Grantee's expense incurred for each additional E -Mail address and IP address after the first one, at Grantee's cost. 3. EDUCATIONAL AND GOVERNMENT (EG) ACCESS CHANNELS Grantee shall make three (3) video channels available exclusively for EG use (not including the the public access channel which is currently programmed by Grantee). These channels shall be dedicated to such use for the term of the Franchise renewal, provided the Grantee may utilize any portions of these channels during any time when they are not scheduled for EG use. Grantor and Rosemead /Charter Franchise Agreement- Exhibit D D -1 June 15, 2000 Grantee shall establish rules and procedures for such scheduling in accordance with Section 611 of the -Cab le•Communications Policy Act of 1984. 4. PROVISION OF EG ACCESS EQUIPMENT AND FACILITIES (a) No later than thirty (30) days after the effective date of this Agreement, Grantee shall provide and install at no charge, new character generation equipment and associated video equipment at a designated location in Grantor's City Hall, and in the City's Emergency Operations Center, for use in generating Governmental Access text announcements on Channel 55, the Cable System's Government Access Channel. No earlier than five (5) years after the effective date of this Agreement, Grantor may request, and Grantee shall provide and install at no charge, upgraded replacement character generation equipment and associated video equipment at the designated locations. (b) No later than ninety (90) days after.the effective date of this Agreement, Grantee shall provide a video playback unit in a location within the City Hall complex designated by Grantor. Grantee also shall install an upstream link from this location to the Cable System headend to permit playback to the Government Access channel. (c) Grantor may request from Grantee an EG Access equipment grant in an amount not to exceed thirty thousand dollars ($30,000) for EG Access support. Grantee shall provide the requested funds within sixty (60) days of the receipt of a written request. Any capital grant provided shall be utilized for EG Access equipment and facilities, which are defined to include, but not be limited to, data communications terminal and interface equipment as well as video equipment. (d) No earlier than sixty (60) months after the effective date of this agreement, Grantor may request an additional capital grant for EG Access support. Rosemead /Charter Franchise Agreement - Exhibit D D -2 June 15, 2000 (e) If permitted by applicable law, the Grantor shall not oppose any "pass- through" of the EG Access capital grants provided in (a) through (d) above. (f) Any request by Grantor for capital grants for special projects shall be in accordance with an operating plan prepared by Grantor. (g) Charter will provide audio /video coverage of up to four City events each calendar year and will produce video suitable for playback on the EG access channel. 5. EG OPERATIONS Grantor may negotiate agreements with neighboring jurisdictions served by the same Cable System, educational institutions, or others to share operating expenses as appropriate. Grantor and Grantee may negotiate an agreement for management of EG facilities, if so desired by the parties. 6. TITLE TO EG EQUIPMENT Grantor shall retain title to all EG equipment provided with funding made available in accordance with paragraph 4 above. 7. RELOCATION OF EG CHANNELS If Grantee relocates any EG Access channel to a different channel number, Grantee shall reimburse Grantor for any out -of- pocket Grantor costs incurred as a result of the relocation. Grantee shall provide Grantor and all subscribers with at least thirty (30) days written notice of such relocation. RosemeadlCharter Franchise Agreement - Exhibit D D -3 June 15, 2000 S. PROMOTION OF EG ACCESS Grantee shall allow the Grantor to place bill stuffers in Grantee's subscriber statements at a cost to the Grantor not to exceed Grantee's cost, not more than twice per year upon the written request of the.Grantor and at such times that the placement of such materials would not effect Grantee's cost for the production and mailing of such statements. The Grantor agrees to pay Grantee in advance for (`' the actual cost of such bill stuffers. Grantee shall also make available access information provided by Grantor in subscriber packets at the time of installation and at the counter in the System's business office. Grantee shall also distribute, at no charge to Grantor, through advertising insertion equipment, promotional and awareness commercial spots produced at the Grantor's cost and submitted by the Grantor in a format compatible with such equipment once Grantee has acquired and activated such capability. Grantee shall also include a listing of the known programming to be cablecast on EG Access channels in any program guide of services for the Cable System. Rosemead /Charter Franchise Agreement - Exhibit D D -4 June 15, 2000 EXHIBIT E FREE PUBLIC BUILDING:INSTALLATIONS SERVICE TO ROSEMEAD INSTITUTIONS Rosemead /Charter Franchise Agreement - Exhibit D D -5 June 15, 2000 EXH113IT E FREE PUBLIC BUILDING INSTALLATIONS SERVICE TO ROSEMEAD INSTITUTIONS In order to ensure that all public agencies in Rosemead have access to basic cable television service and high -speed Intemet service, subject to the exceptions contained in Exhibit "D," Grantee shall provide upon request from the Grantor, one converter box, the highest level of basic service, one cable modem and unlimited Internet service to one non - networked computer at each of the following locations. The service shall be provided at no charge if used for non - commercial educational and informational purposes. Additional equipment and services will be provided at a rate negotiated by Grantor and Grantee. Rosemead City Hall 8838 E. Valley Boulevard 2. Garvey Park 7933 Emerson Place Rosemead Park 4343 Encinita Avenue 4. Zapopan Park & Center 3018 N. Charlotte Avenue Rosemead Community Recreation Center 3936 N. Muscatel Avenue 6. Dinsmoor Heritage House 9632 Steele Street Rosemead Chamber of Commerce 3953 Muscatel Avenue 8. Garvey School District 2730 N. Del Mar Avenue 9. Rosemead School District 3907 N. Rosemead Blvd., 4230 10. Bitely Elementary School 7501 E. Fern Street Rosemead/Charter Franchise Agreement - Exhibit E E -6 June 15, 2000 11. Duff Elementary School 7830 Dorothy Street 12. Emerson Elementary School 7544 E. Emerson Place 13. Rice Elementary School 2150 N. Angelus Street 14. Sanchez Elementary School 8470 Fern Street 15. Williams Elementary. School 2444 N. Willard Avenue 16. Willard Elementary School 3152 N. Willard Avenue 17. Garvey Intermediate School 2720 N. Jackson Avenue 18. Temple Intermediate School 8470 Fern Street 19. Encinita Elementary School 4515 Encinita Avenue 20. Janson Elementary School 8628 Marshall Street 21. Savannah Elementary School 3720 Rio Hondo Avenue 22. Shuey Elementary School 8472 Wells Street 23. Muscatel Intermediate School 4201 N. Ivar Street 24. Rosemead High School 9063 E. Mission Drive 25. El Monte & Rosemead Adult School 4105 Rosemead Boulevard Rosemead /Charter Franchise Agreement - Exhibit E E' June 15, 2000 26. Don Bosco Technical Institute 1151 San Gabriel Boulevard 27. Southeast Community Adult Center 7422 E. Garvey Avenue 28. West San Gabriel Valley Consortium/Career Partner 3505 N. Hart Avenue M' Rosemead /Charter Franchise Agreement - Exhibit E E -8 June 15, 2000 1 3 4 5 6 7 8 9 10 ORDINANCE NO. 80 _ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD AMENDING CHAPTER 5.28 OF THE ROSEMEAD MUNICIPAL CODE, PROVIDING FOR THE ESTABLISHMENT AND GRANTING OF FRANCHISES FOR THE MAINTENANCE AND OPERATION OF CABLE TELEVISION SYSTEMS AND FOR THE CONTINUING REGULATION AND ADMINISTRATION OF THESE FRANCHISES. THE CITY COUNCIL OF THE CITY OF ROSEMEAD DOES HEREBY ORDAIN AS FOLLOWS: Unless expressly repealed or amended by the following sections, the existing provisions of 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Chapter 5.28 of the.Rosemead Municipal Code entitled the "Cable Television Franchise Law of the City of Rosemead," shall continue to be applicable. SECTION I. Chapter 5.28 of Title 5 of the Rosemead Municipal Code is hereby amended in the following particulars: Section 5.28.020 DEFINITIONS is amended in the following particulars only: A. The definition of "Additional Subscriber Service " is hereby amended to read as follows: "Additional Subscriber Service" means any service not included in basic subscriber television service, basic subscriber radio service or institutional service, as defined in this section, including, but not limited to, pay cable, interactive services, cable modem services, and cable telephone services. B. The definition of "Cable communications system" or "system, " is hereby amended to read as follows: "Cable communications system" or "system," sometimes referred to as 'cable TV system," "CATV system" or "broadband communications network," means a system of antennas, cables, amplifiers, towers, microwave links, cablecasting studios, and any other conductors, converters, equipment or facilities, designed and constructed for the primary purpose of distributing video programming to home subscribers, and the secondary purpose of producing, receiving, amplifying, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 77 23 24 25 26 27 28 storing, processing, or distributing audio,.video, digital, or other forms of electronic or electrical signals. Such term does not include: 1. A facility that serves only to transmit television signals of one (1) or more television broadcast stations; 2. A facility that serves Subscribers without using any Public Right- ofWay; 3. A facility of a common carrier, which is subject in whole or in part to the provisions of Title Il of the Federal Telecommunications Act of 1996, except that such facilit} shall be considered a Cable communications system to the extent such facility is used in the transmission of Video Programming directly to Subscribers, unless the extent of such use is solely to provide interactive on- demand services; or 4. An open video system that complies with Section 653 of the Federal Telecommunications Act of 1996; or 5. Any facilities of any electric utility used solely for operating its electric utility system. C. The definition of "Channel" is hereby amended to read as follows: "Channel" means a radio frequency band capable of carrying combinations of video, audio, digital or other non -video signal, including a digitally compressed channel. D. The definition of "Gross Annual Revenue" is deleted. A new definition is added as follows: "Gross Revenue" means all cash or other consideration received directly or indirectly by a grantee and its affiliates, subsidiaries, parent, and any person in which a grantee has a financial interest, or from any source whatsoever, arising from or attributable to the sale or exchange of cable services by a grantee within the City or in any way derived from the operation of its system, including, but not limited to, "Basic Subscriber Television Service," "Basic Subscriber Radio Service," "Institutional Service," "Additional Subscriber Service," Premium and Services, leased channel fees, converter rentals or sales, revenue from cable Internet services, cable modem rentals or sales, revenue from telephone and other services which may be provided over the Cable Communications System, studio rental, and advertising revenues. Such gross revenues shall not be reduced for any purpose other than as provided in this Chapter and shall be the basis for computing 04 R 1 3 4 5 6 7 8 9 10 the fee imposed pursuant to Section 5.28.100 of this Chapter. Such gross revenue shall not include converter deposits, modem deposits, or refunds to subscribers by the grantee, or items excluded by Federal law. E. The definition of "Year" is amended to read as follows: "Year" means the remaining portion of 2000. Thereafter, "year" means a full calendar year. Section 5.28.030 Grant of franchise is amended in the following particulars only: Subsection B is amended to read as follows: B. Basis for Award of Franchise. Pursuant to Federal and State law, the City Council may base its award of a cable communications system franchise on the following criteria: 1. For every New Franchise: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 261 27 28 a. Quality of service; and b. Equal service for all areas of the City, without regard to income of the residents; and c. Adequate public, educational, and governmental access channel capacity, facilities, and financial support; and d. Adequate assurance that the cable operator has the financial, technical, and legal qualifications to provide cable service. e. Any other consideration that will safeguard the local public interest. 2. For every Franchise Renewal: a. Whether the cable operator has substantially complied with the material terms of the franchise and with applicable law. b. Whether the quality of the operator's service has been reasonable in light of community I needs. c. Whether the cable operator has the financial, legal and technical ability to provide the services, facilities and equipment set forth in the proposal. d. Whether the operator's proposal is reasonable to meet the future needs and interests of the community, taking into account the cost of those needs. 3 Subsection E. Duration is amended to read as follows: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 , Y) 23 24 25 26 27 28 E. Duration. The term of the franchise and all rights, privileges, obligations and restrictions pertaining thereto shall not exceed ten (10) years from the effective date of the franchise unless terminated sooner as hereinafter provided. No franchise shall be effective unless, within thirty (30) days after approval by the Council, the grantee files in the appropriate office of the city a written acceptance of the franchise. Subsection I is added to read as_follows: I. Open Access. It is the policy of the City to encourage open access so that its residents may utilize any Internet Service Provider, whether they receive their Internet Service by means of satellite transmission, cable television, other Fiber Optic cables, or other means. If Federal Law permits franchising authorities to require open access, the grantee shall permit open access to the fullest extent permitted by law. . Section 5.28.060 Operation and maintenance is amended in the following particulars only: .Subsection A is amended to read as follows: A. Open Books and Records. The grantee shall maintain an office within five (5) miles of the City and shall manage all of its operations in accordance with a policy of totally open books and records. The grantor shall have the right to inspect at any time during normal business hours, all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results and other like materials of the grantee which relate to the operation of the franchise. Access to the aforementioned records shall not be denied by the grantor on the basis that the records contain proprietary information. Subsection C 2 is amended to read as follows: . C. Reports. 2. Monitoring and Compliance Reports. No later than April 15th of each year, the grantee shall provide a written report of the FCC performance tests for the Cable Television System required in Part 76, Section 76.601 of FCC Rules and Regulations. In addition, the grantee shall provide, rd reports of the test and compliance procedures established by the franchise agreement, no later than thirty (30) days after the completion of each series of tests. Subsection D is amended to read as follows: H D. Maintenance and Complaints. 1. The grantee shall maintain an office within five (5) miles of the City which shall be open 7 0 12 13 14 15 16 17 18 19 20 21 22 23 24, 25 I 26 27 28 during all usual business hours, shall have a publicly listed toll -free telephone number, and be so operated to promptly answer subscriber telephone calls and to act upon complaints and requests for repairs or adjustments, on a twenty -four (24) hour basis. A written log shall be maintained listing all complaints and their disposition. Grantee shall maintain a location within the City for the making of payments, which shall be open during normal business hours and a reasonable number of evening and weekend hours, unless grantee establishes to the satisfaction of grantor, hardship sufficient to excuse, grantee from this requirement. 2. The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during period of minimum use of the system. A written log shall be maintained for all service interruptions. 3. The grantee shall not refuse to provide service to any customer or prospective customer conditioned upon such person providing a Social Security number to grantee if such person provides a drivers license number or California I.D. number. Existing customers of the grantee will not be asked more than the last four digits of their Social Security number or driver's license /California I.D. number. After establishment of an account, existing customers may set up an individualized Personal Identification Number (PIN) for use in verifying identity. No number will be required as a prerequisite to ordering routine repair service by existing customers. 4. The grantee shall maintain a repair force of technicians capable of responding to subscriber complaints or requests for service within twenty -four (24) and forty eight (48) hours after receipt of the complaint or request, respectively. Repair service appointments shall be offered in four hour blocks. No charge shall be made to the subscriber for repair service unless the problem was caused by an act of the subscriber. 5. The grantor shall ensure that all subscribers, programmers, and members of the general public have recourse to a satisfactory hearing of any complaints, where there is evidence that the grantee has not settled the complaint to the satisfaction of the person initiating the complaint. The 4 .5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27, 28 grantor shall establish procedures for handling and settling complaints. Section 5.28.070 Regulation of franchise and rates is amended in the following particulars only: A new preamble is added, preceding subsection A, to read as follows: Regulation of rates and other terms for the provision of service to customers as set forth hereinbelow shall be subject to and limited by applicable restrictions imposed by Federal and State law. if and when such restrictions are removed or modified, enforcement of provisions hereof which are not currently fully enforceable shall be enforced to the maximum extent permitted by law. Section 5.28.140 Miscellaneous Provisions is amended in the following particulars only: Subsection A is amended to read as A. Compliance with Laws. Notwithstanding any other provision of this Ordinance or the franchise to the contrary, the grantee at all times shall comply with all laws and regulations of the state and federal government or any administrative agencies thereof, provided, however, if any such state or federal law or regulation shall require the grantee to perform any service, or shall permit the grantee to perform any service, or shall prohibit the grantor from enforcing provisions of this Ordinance. or the franchise, or shall prohibit the grantee from performing any service in conflict with the terms of the franchise or of any law or regulation of the grantor,, then, as soon as possible following knowledge thereof, the grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or the franchise. If the grantor determines that a material provision of this chapter is affected by any subsequent action of the state or federal government, the grantor shall have the right to modify and /or interpret any of the provisions of this chapter to such reasonable extent as may be necessary to carry out the full intent and purpose of this chapter consistent with said regulation or law. N 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 Section 2 . This Ordinance has been determined to be exempt from the California Environmental Quality Act pursuant to State Guidelines § 15061 (b)(3) as a project that has no potential for causing a significant effect on the environment. Section 3 . The City Clerk shall certify to the adoption of this Ordinance. PASSED. APPROVED and ADOPTED this -?7 day of � , 2000. Mayor a City of Rosemead A City Clerk ° City of Rosemead 7 � r STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES CITY OF ROSEMEAD . I, Nancy Valderrama, City Clerk of the City of Rosemead, do hereby certify that the foregoing Ordinance No. 807 being: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD AMENDING CHAPTER 5.28 OF THE ROSEMEAD MUNICIPAL CODE, PROVIDING FOR THE ESTABLISHMENT AND GRANTING OF FRANCHISES FOR THE MAINTENANCE AND OPERATION OF CABLE TELEVISION SYSTEMS AND FOR THE CONTINUING REGULATION AND ADMINISTRATION OF THESE FRANCHISES was duly adopted at a regular meeting of the Rosemead City Council on the 27th 1h day of June, 2000, by the following vote to wit: YES: COUNCILMEMBERS, VASQUEZ, BRUESCH, CLARK, IMPERIAL, NO: NONE ABSENT: NONE ABSTAIN: NONE CITY CL ERIC *200710230610388* 200710230610388 BUSINESS INTERNET SERVICE AGREEMENT This Service Agreement ( "Agreement') is executed and effective upon the latest date of the signatures set forth in the signature block below ( "Effective Date') by and between , ( "Charter Business" or "Charter') with local offices at 4781 Irwindale Avenue, Irwindale CA 91706 and Rosemead City Hall, ( "Customer') with offices located at 8838 VALLEY BLVD, ROSEMEAD, CA 91770 -1714. Both parties desire to enter into this Agreement in order to set forth the general terms under which Charter is to provide Customer with Charters services ( "Service" or "Services ") to Customer site(s), the scope and description to be specified per site below and /or in a Service order(s) executed by both parties (each instance of site identification and order a "Service Order" or collectively the "Service Orders "), which shall be incorporated in this Agreement upon execution. This Agreement and each Service Order will be effective only after both parties have signed each document. SERVICE ORDER Under the Business Internet Service Agreement CUSTOMER INFORMATION: Account Name: Rosemead City Hall Invoicing Address: same, , _ Invoicing Special Instructions: Customer Federal Tax ID #: 9520799 -94 1. SITE - SPECIFIC INFORMATION: ❑ New ® Renew ❑ Change: Order Type: Renewal: Upgrade Service Location (Address): 8838 VALLEY BLVD, ROSEMEAD, CA 91770 -1714 Service Location Name (torpurposes of identification): Service Location Special Instructions: 0 Non - Hospitality or Non -Video CBCR v2 :00600000007pF9k Customer Contact Information. To facilitate communication the following information is provided as a convenience and may be updated at any time without affecting the enforceability of the terms and conditions herein: M. O N T H L Y::S..E, R V I C E:, F E. ES: r Data Services: Charter Business Bundle: No Bundle " Base Service $309.99 Speed: 8 12 (Standard) (Down /Up) CPE: IP Options Static IP Package: 5 -Pack Static IP: Routed Subnet (129) $54.95 Static lP Addresses: 66.214.145.43 (For Charter internal purposes only - Campaign Source (if applicable): If Customer has selected the Charter Business Special Offers, the Section 2(k) of the Standard Terms of Service (for Charter Business Bundle) shall apply. 0NE'' 's ` n. ° " Billing Contact Site Contact Technical Contact Name Oliver Chi Kesh Gurmel Phone (714) 728 -2050 CHARGES $0.00 Fax (626) 569 -2303 Cell Pager Email Address rgurmel @sbrtechnology.cwm M. O N T H L Y::S..E, R V I C E:, F E. ES: r Data Services: Charter Business Bundle: No Bundle " Base Service $309.99 Speed: 8 12 (Standard) (Down /Up) CPE: IP Options Static IP Package: 5 -Pack Static IP: Routed Subnet (129) $54.95 Static lP Addresses: 66.214.145.43 (For Charter internal purposes only - Campaign Source (if applicable): If Customer has selected the Charter Business Special Offers, the Section 2(k) of the Standard Terms of Service (for Charter Business Bundle) shall apply. 0NE'' 's ` n. ° " ,� .::.�. _..am .m_ ,., �, s a.. 5 i1i ,,, '...5;.. .. ..._ >m.,....;,; + , , :1 , : ,. � ONE -TIME CHARGES $0.00 2. TOTAL FEES. Total Monthly Service Fees of $364.94 are due upon receipt of the monthly invoice. 3. SERVICE PERIOD. The initial Service Period of this Service Order shall begin on the date installation is completed and shall continue for a period of 24 months. Upon expiration of the initial term, this Service Order shall automatically renew for successive one -month terms unless either party terminates this Service Order by giving thirty (30) days prior written notice to the other party before the expiration of the current term. 4. NO UNTRUE STATEMENTS. Customer further represents and warrants to Charter that neither this Service Order, nor any other information, including without limitation, any schedules or drawings furnished to Charter contains any untrue or incorrect statement of material fact or omits or fails to state a material fact. 5. CONFIDENTIALITY. Customer hereby agrees to keep confidential and not to disclose directly or indirectly to any third party, the terms of this Service Order or any other related Service Orders, except as may be required by law. If any unauthorized disclosure is made by Customer and /or its agent or representative, Charter shall be entitled to, among other damages arising from such unauthorized disclosure, injunctive relief and a penalty payment in the amount of the total One -Time Charges associated with this Service Order, and Charter shall have the option of terminating this Service Order, other related Service Orders and /or the Service Agreement. 6. FACSIMILE. A facsimile of a duly executed Agreement and Service Order signed by both authorized parties shall be considered evidence of a valid order and Charter may rely on such facsimile copy of the Agreement and Service Order as if it were the original. NOW THEREFORE, Charter and Customer agree to the terms and conditions included within this Service Agreement, including the Standard Terms of Service which follow, and hereby execute this Service Agreement by their duly authorized representatives. CBCR v2 :00600000007pF9k CBCR v2 :00600000007pF9k Rosemead City Hall By: By: Charter Communications, Inc., Its Manager �/rtr� k O V By: By: I G ( , Name: Name: — O L I Q E (�- - C %A N Title: Title: t✓1 Z�:j N-4 14JJ AC`�t�2. Date: Date: 10 - Charter Business Account Executive: Name: Janie Thai Telephone: 626 - 430 -3369 Sales Code: Fax: 866.915.5219 or 866.915.5220 CBCR v2 :00600000007pF9k STANDARD TERMS OF SERVICE CBCR v2 :00600000007pF9k Customer of such charges. Customer shall be 1. SERVICE. Charter agrees to provide the Services during assessed such additional One -Time Charges and /or the Service period to the Customer at the site(s) identified adjusted Monthly Service Fees, either (i) in advance in the Service Order(s). "Service Period," is the time period of implementation of the change request or (ii) starting on the date the Services are fully functional in all beginning on the Customer's next and /or subsequent material respects and available for use as described in a invoice(s). Service Order or as reflected in the first invoice (the "Turn - up Date "), and continuing for the number of months (e) Site Visits and Repairs If Customer's misuse, abuse specified in the Service Order(s). or modification of the Services, Equipment or Network facilities supplied by Charter necessitates a visit to the 2. STANDARD PAYMENT TERMS. Customer agrees to Customer site for inspection, correction or repair, pay the monthly Service fees and one -time charges as set Charter shall charge Customer a site visit fee as well forth in the Service Order(s) incorporated under this as charges for any Equipment or Network repair or Service Agreement by execution thereof by the parties. replacement necessary to restore Service. "Monthly Service Fees" is the amount specified as the monthly fee to be paid by the Customer for the Services. (f) Invoicing Errors Customer must provide notice to "One -Time Charges" include, but are not limited to, Charter of any invoice errors or disputed charges construction, Service installation charge(s), repair, within thirty (30) days of the invoice date on which the replacement, or any non - recurring charges. "Service errors and /or disputed charges appear in order for Installation Charge" is the amount specified as the fee for Customer to receive any credit that may be due. installation of equipment and network facilities. (g) Late Fees If Customer fails to pay an invoice within "Equipment" means components including, but not limited to, any gateway or edge electronic device, antenna, node, thirty (30) days of issuance, Charter will issue a notice concentrator, bridge, receiver, transmitter, transceiver; of late payment. Customer will be charged a late fee of not more than five percent (5 %) per month on any router, switch, hub or communications lines /cables that outstanding past -due balance. makes up the network of Charter - provided Equipment, facilities and materials (the "Network ") necessary to (h) Non - Payment If Services are disconnected because provide the Services. Customer does not pay the invoice, Charter may, in its sole discretion, require that Customer pay all past (a) Monthly Service Fees Customer agrees to pay due charges, a reconnect fee, and a minimum of one Monthly Service Fees in advance of the provision of month's Monthly Service Fees in advance before the Services. Monthly Service Fees are due upon Charter will reconnect Services. receipt of the invoice. (i) Returned Checks Bankcard or Credit Card Charge - (b) One -Time Charges Customer agrees to pay the Backs and Collection Fees Charter may charge a One -Time Charges as described on the applicable reasonable service fee for all returned checks and Service Order(s). bankcard, credit card or other charge card charge - (c) Taxes. Fees, and Government Charges Customer backs. agrees to pay any sales, use, property, excise or G) Collection Fees Customer shall be responsible for all other taxes, franchise fees, and governmental expenses, including reasonable attorney's fees and charges (excluding income taxes), arising under this collection costs, incurred by Charter in collecting any Agreement, including, without limitation, applicable unpaid amounts due under this Agreement. state property taxes. A copy of the Customers tax exemption document, if applicable, must be provided (k) Bundled Pricing In the event Customer has selected to Charter to certify tax - exempt status. Tax - exempt a Charter Business Bundle (as must be specifically status shall not relieve Customer of its obligation to indicated by component Service in this Service pay any applicable franchise fees. Order), the following conditions shall apply: (d) Charges for Change Requests Any charges In consideration for Customer's purchase of the associated with Service and Equipment installations, Charter Business Bundle and only with respect to that additions, modifications, substitutions, upgrades, period time during which Customer continues to reconfigurations, rebuilds or relocations at a site and purchase such Charter Business Bundle (for purposes requested by Customer subsequent to executing a of clarification, continues purchase of each bundled Service Order for that site, are the sole financial Service component of such Charter Business Bundle), responsibility of Customer. Charter shall notify Charter agrees to apply a discount to the Services Customer, orally or in writing, of any additional One- ordered under this Service Order. Such discount has Time Charges and /or adjustments to Monthly Service been applied to the Services included in Charters Fees associated with or applicable to such Customer bundled pricing offer and is reflected in the Monthly change requests prior to making any such additions Services Fees for such Services contained in this or modifications. Customer's failure to object to such Service Order. additional charges within three (3) days of receiving such notice shall be deemed an acceptance by CBCR v2 :00600000007pF9k For purposes of clarification, in the event Charter's provision to Customer of one or more of the bundled Service components of the Charter Business Bundle, is discontinued or otherwise terminated for any reason, the pricing for the remaining Service components listed above shall revert to Charter's a la carte pricing for such Services in effect at the time of the discontinuation or termination. Termination liabilities applicable to the Services under the Service Agreement shall otherwise remain unchanged. 3. SERVICE LOCATION ACCESS and INSTALLATION. (a) Access Customer shall provide Charter with reasonable access to each Service Location listed on a Service Order as necessary for Charter to review, install, inspect, maintain or repair any Equipment or Materials necessary to provide the Services. If Customer owns and /or controls the Service Location(s), Customer grants to Charter permission to enter the site(s) for the exercise of such right. If a site is not owned and /or controlled by Customer then Customer will obtain, with Charter's assistance, appropriate right of access. If Customer is not able to gain right of access for a site from owner and /or controlling party, Charter's obligations under this Agreement and the appropriate Service Order for such site are terminated, null and void. (b) Installation Review Subsequent Interference. Charter may perform an installation review of each Service Location prior to installation of the Services at that Service Location. Customer may be required to provide Charter with accurate site and /or physical network diagrams or maps of a Service Location prior to the installation review. Charter may directly or through its agents inspect the Customer Premises before beginning installation, and shall satisfy itself that safe installation and proper operation of its Equipment and the Services are possible in the location(s) provided by Customer. If Charter, in its sole discretion, determines that safe installation and /or activation of one or more of the Services will have negative consequences to Charter's personnel or Network and /or cause technical difficulties to Charter or its customers, Charter may terminate the Service Order effective upon prior written notice to Customer or may require the Customer to correct the situation before proceeding with installation or activation of the Services. In the event during the initial or any renewal Service Period, (i) proper operation of Charter's Equipment and /or unhindered provision of the Services is no longer possible as a result of interference or obstruction caused by the acts or omissions of Customer, a third party or any Force Majeure Event, or (ii) such interference /obstruction or the cause thereof will have negative consequences to Charters personnel or Network and /or cause technical difficulties to Charter or its customers, as Charter may determine in its sole discretion, Charter may terminate the affected Service Order(s) without liability upon written notice to Customer. (c) Site Preparation Customer shall be responsible, at its own expense, for all site preparation activities necessary for delivery and installation of the Equipment and the installation and ongoing provision of Services, including, but not limited to, the relocation of Customer's equipment, furniture and furnishings as necessary to access the Equipment and /or Services. To ensure proper installation of the Equipment and the Services, Customer may be required to provide electrical or other utility service, and /or accurate physical network diagrams and /or maps prior to installation. (d) Installation. Charter will schedule one or more installation visits with Customer. Customer's authorized representative must be present during installation. During installation, Charter shall test to confirm that the Services can be accessed from the Service Location. In the event that during the course of installation Charter determines additional work is necessary to enable Charter to deliver the Services to the Service Location, Charter will notify Customer of any new or additional One -Time Charges that may be necessary. In the event the Customer does not agree to pay such One -Time Charges by executing a revised Service Order reflecting such new charges (and superseding the underlying applicable Service Order) within five (5) business days of receiving the revised Service Order, Customer and /or Charter shall have the right to terminate the applicable Service Order. Customer shall be responsible for access paths, moving or relocating furniture, furnishings, or equipment, or other preparation activities necessary for Charter to install the Services. Customer shall connect any Equipment provided by Charter to Customer's computer or network to enable access to the Services. With respect to any excavation, Charter shall be responsible for reasonable restoration efforts necessary to address any displacement resulting from such excavation. (e) Ongoing Visits Charter will need access to the Customer Premises from time to time for inspecting, constructing, installing, operating and maintaining Charter's Network facilities, Equipment or materials and /or any related facilities. Except in emergency situations, Charter will obtain approval from the Customer (not to be unreasonably withheld or delayed) before entering the Customer Premises. At Charter's request, Customer, or a representative designated by Customer, will accompany Charter's employees or agents into any unoccupied unit for the purpose of installing, repairing, maintaining, upgrading, and /or removing the Equipment. 4. EQUIPMENT AND MATERIALS. (a) Responsibilities and Safeguards Except as otherwise provided in this Service Agreement or any Service Order(s), neither party shall be responsible for the maintenance or repair of cable, electronics, structures, Equipment or materials owned by the other party, provided however, that subject to the Indemnification limitations set forth in section 11 CBCR v2 :00600000007pF9k hereunder, each party shall be responsible to the other for any physical damage or harm such party causes to the other party's personal or real property through the damage- causing party's negligence or willful misconduct. Without limiting the foregoing, Customer will not be liable for loss of or damage to cable, electronics, structures or Equipment owned by Charter and located on Customer Premises which occurred as a result of the occurrence of any Force Majeure Event, natural disaster or other casualty loss over which Customer has no control. Customer shall: i Safeguard Charter - provided Equipment against others; ii Not add other equipment nor move, modify, disturb, alter, remove, nor otherwise tamper with any portion of the Equipment; iii Not hire nor permit anyone other than personnel authorized by Charter acting in their official capacity to perform any work on the Equipment; and iv Not move nor relocate Equipment to another location or use it at an address other than the Service location without the prior written consent of Charter. Any unauthorized connection or other tampering with the Services, Equipment, any system or its components shall be cause for immediate disconnection of Services, termination of this Agreement and /or legal action, and Charter shall be entitled to recover damages, including, but not limited to, the value of any Services and /or Equipment obtained in violation of this Agreement in addition to reasonable collection costs including, but not limited to, reasonable attorneys' fees. Should any antenna, or signal amplification system for use in connection with communication equipment hereafter be installed on the Premises which interferes with the Services provided by Charter hereunder, Customer acknowledges and agrees that Charter shall not be obligated to distribute a quality signal to the Premises better than the highest quality which can be furnished as a result of such interference, until such time as the interference is eliminated or corrected by Customer or a third party. (b) Ownership Customer understands and agrees that notwithstanding any other provision contained herein to the contrary, all Equipment and materials installed or provided by Charter are and shall always remain the property of Charter, shall not become a fixture to the Premises, and must be returned to Charter at any time Services are disconnected in the condition in which they were received subject to ordinary wear and tear. Customer will not sell, lease, assign nor encumber any Equipment. (c) Equipment Return, Retrieval. Repair and Replacement Immediately upon termination of Services ("Termination" shall mean the termination of the Service Agreement and/or Service Order(s)), at the discretion of Charter, Customer shall return, or allow Charter to retrieve, the Equipment supplied by Charter to Customer, in good condition. Failure of Customer to return, or allow Charter to retrieve, Equipment within ten (10) days after Services are terminated will result in a charge to Customer's account equal to the full retail cost of replacement of the unreturned Equipment. In addition, Customer agrees to pay for the repair or replacement of any damaged Equipment (whether or not caused by Customers negligent act, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material /workmanship defects), together with any costs incurred by Charter in obtaining or attempting to regain possession of such Equipment, including, but not limited to, reasonable attomeys' fees. 5. VIDEO, MUSIC AND CONTENT SERVICE. This Video, Music and Content Service section shall only apply if Video, Music and Content Services are included in this Service Agreement or any related Service Order. Continued reception of the Video Services is subject to these Terms and Conditions. Charter may, in its sole discretion, preempt, rearrange, delete, add, discontinue, modify or otherwise change any or all of the advertised programming, packaging, and distribution of its Video Services or of any of Charters Video Services packages. (a) Payment Terms Increases in any and all programming, license, copyright, retransmission and /or other costs, charges, fees or amounts including, without limitation, taxes and any and all other governmental fees, charges and /or other amounts, shall not be deemed to be included in the Monthly Service Fees or limited by any provision in this Agreement, and may be passed on to Customer at any time when such costs are incurred by, assessed or required of Charter. The initial Monthly Service Fees shall remain in effect for the first 12- months of this Agreement. Thereafter, Charter may increase the Monthly Service Fees from time to time upon thirty (30) days' prior written notice to Customer. Customer hereby agrees to any such increases that do not exceed ten percent (10 %) of the Customer's total Monthly Service Fees incurred in the month immediately preceding the month in which the increase is to be effective. Increases shall not occur more frequently than once per 12 -month period. In the event such increased Monthly Service Fee would exceed the amount permitted under applicable law, the Monthly Service Fees shall be increased only to the maximum allowable under applicable law. Notwithstanding the foregoing, increases in any and all programming, license, copyright, retransmission and /or other costs, charges, fees or amounts including, without limitation, taxes and any and all other governmental fees, charges and /or other CBCR v2 :00600000007pF9k CBCR v2 :00600000007pF9k amounts, shall not be limited by any provision in this the Services (or any part thereof) are being performed Agreement, and may be passed onto Customer at or are to be performed; (ii) permit dancing, skating or any time when such costs are passed on to Charter. other similar forms of entertainment or physical activity in conjunction with the performance of the Services (or any part thereof) unless Customer can (b) Music Rights Fees In all cases, Customer is demonstrate to the reasonable satisfaction of Charter responsible for and must secure any music rights that Customer or a third -party has obtained a then - and/or pay applicable fees required by the American current music license permitting such activity; or (iii) Society of Composers, Authors & Publishers insert any commercial announcements into the ( "ASCAP "), Broadcast Music, Inc. ( "BMI ") and Services or interrupt any performance of the Services SESAC, Inc. ( "SESAC ") or their respective for the making of any commercial announcements. If successors, and any other entity, person or Customer fails to abide by these restrictions, governmental authority from which a license is Customer accepts liability for any and all claims made necessary or appropriate in connection with against Customer or Charter due to any unauthorized Customers transmission, retransmission, commercial exhibition and Customer agrees to communication, distribution, performance or other use indemnify and hold Charter harmless from any of the Services. damages, loss, cost, liability, or expense, including reasonable attorneys' fees, arising from a breach of (c) Premium and Pay- Per -View Customer may not these restrictions. exhibit any premium Services such as HBO or Showtime in any public or common viewing area. 6. INTERNET ACCESS SERVICE. Continued use of the Customer may not order or request Pay- Per -View Internet Service is subject to these Terms and Conditions. (PPV) programming for receipt, exhibition or taping in (a) Equipment and Software Requirements Customer a commercial establishment. Customer may not shall maintain certain minimum Equipment and exhibit nor assist in the exhibition of PPV software to receive the Service. Please refer to programming in a commercial establishment unless www.charter- business.com (or the applicable explicitly authorized to do so by agreement with an successor URL) for the current specifications. authorized program provider and subject to Charters prior written consent. If Customer fails to abide by (b) Internet Service Speeds Charter shall use these restrictions, in addition to all other liability and commercially reasonable efforts to achieve the not by way of limitation, Customer accepts liability for Internet speed selected by the Customer on the any and all claims made against Customer or Charter Service Order. However, Customer understands and of any unauthorized commercial exhibition and agrees that such speeds may vary. Customer agrees to indemnify and hold Charter harmless from any loss, cost, liability, or expense, (c) Access and Use Customer agrees to ensure that including reasonable attorney's fees, arising from a any person who has access to the Internet Services breach of this provision. through Customers computer(s), Service Location, facilities or account shall comply with the terms of this (d) Provision of Service Charter may, in its sole Agreement. Customer shall be responsible for all discretion, from time to time, rearrange, delete, add or charges incurred and all conduct, whether authorized otherwise change packaging and programming of or unauthorized, caused by use of Customer's Services contained in Charter's basic cable, Digital computers, service locations, facilities or account Music or other Services provided pursuant to this using the Internet Services. Agreement. Customer acknowledges that Charter has the right at any time to preempt without notice (d) Customer Security Responsibilities Customer shall specific advertised programming and to substitute be responsible for the implementation of reasonable programming that Charter deems to be comparable. security procedures and standards. Charter may temporarily discontinue or disconnect the Internet (e) Restrictions Customer shall not and shall not Services upon learning of a breach of security and will authorize or permit any other person to (i) copy, attempt to contact Customer in advance, if possible. record, dub, duplicate, alter, make or manufacture The temporary discontinuation or disconnection of the any recordings or other reproductions of the Services Internet Services shall not constitute a breach of this (or any part thereof); (ii) transmit the Services (or any Agreement part thereof) by any television or radio broadcast or by any other means or use the Services (or any part (e) Electronic Addresses All e-mail addresses, e-mail thereof) outside the Service Location. Customer account names, and IP addresses ( "Electronic acknowledges that such duplication, reproduction or Addresses ") provided by Charter are and shall remain transmission may subject Customer to criminal the property of Charter. Customer may not alter, penalties and /or civil liability and damages under modify, sell, lease, assign, encumber or otherwise applicable copyright and /or trademark laws. tamper with the Electronic Addresses. Customer shall not, and shall not authorize or permit (f) No Liability for Changes of Address Due to growth, any other person to (i) charge a cover charge or acquisitions and changes in technology, Charter admission fee to any Service Locations) at the time CBCR v2 :00600000007pF9k reserves the right to change addressing schemes, including e-mail and IP addresses. (g) No Liability for Risks of Internet Use The Internet is a shared network and Charter does not warrant that Service will be error free. The Service, Charter's network and the Internet are not secure, and others may access or monitor the Customer's traffic. Charter does not warrant that data or files sent or received by the Customer over the Network will not be subject to unauthorized access by others, that other users will not gain access to the Customer's data, nor that the data or files will be free from computer viruses or other harmful components. Charter has no responsibility and assumes no liability for such acts or occurrences. (h) No Liability for Purchases Through use of the Service, the Customer may access certain information, products and services of others, for which there is a charge. The Customer shall be solely liable and responsible for all fees or charges for these online services, products or information. Charter shall have no responsibility to resolve disputes with other vendors. (i) Blocking and Filtering While the computer industry may provide blocking and filtering software that empowers Customer to monitor and restrict access to Customer's computer and its data, Charter is not the publisher of this software. Charter strongly recommends that the Customer employ a "firewall" or other security software. The Customer assumes all responsibility for providing and configuring any " firewall" or security measures for use with the Service. Except to the extent set forth in the Supplemental Charter Business Security Service Section, Charter shall not be responsible in any manner for the effectiveness of these blocking and filtering technologies. Charter does not warrant that other users will be unable to gain access to Customer's computer(s) and /or data even if the Customer utilizes blocking and filtering technologies. (j) Acceptable Use Policy Customer agrees to comply with the terms of Charters Acceptable Use Policy ( "AUP "), found at www.charter - business.com (or the applicable successor URL) and that policy is incorporated by reference into this Agreement. Customer represents and warrants that Customer has read the AUP and agrees to be bound by its terms as they may from time to time be amended, revised, replaced, supplemented or otherwise changed. Customer expressly understands and agrees that the AUP may be updated or modified from time to time by Charter, with or without notice to Customer. Charter may discontinue or disconnect Services immediately for any violation of the Charter AUP with or without notice to Customer. (k) Supplemental Charter Business Security Service This Charter Business Security Service subsection shall only apply if Charter's managed security service ( "Charter Business Security ") is included in this Service Agreement or any related Service Order. Charter Business Security is made up of software and hardware components. Charter shall ensure that Charter Business Security is operational and updated from time to time based on manufacturer -sent updates. Except to the limited extent described in the foregoing sentence, Charter makes no warranties of any kind (express or implied) regarding Charter Business Security and hereby disclaims any and all warranties pertaining thereto (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). Customer understands and acknowledges that Charter is not the manufacturer of any software or hardware components of Charter Business Security nor is Charter the supplier of any components of such software or hardware. IN ADDITION TO BUT WITHOUT ABROGATING THE TERMS SET FORTH IN SECTION 11, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON - PERFORMANCE OF CHARTER BUSINESS SECURITY (INCLUDING BUT NOT LIMITED TO THAT ATTRIBUTABLE TO BLOCKED CONTENT OR EMAIL). REGARDLESS OF CAUSE OR FAULT, CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF CHARTER BUSINESS SECURITY, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR CHARTER BUSINESS SECURITY. (1) Supplemental CB Back -Up Service. This CB Back - Up service subsection shall apply only if Charter's data storage service ( "CB Back -Up ") is requested by the Customer. In addition to One Time Charges and Monthly Service Fees, monthly storage overage fees shall apply each month Customer exceeds the respective subscribed storage level. Additional One Time Charges and Monthly Service Fees also apply to Customer - requested media and /or professional services. CB Back -Up is made up of software components. Customer understands and acknowledges that Charter is not the manufacturer or supplier of any CB Back -Up software components. Customer shall be responsible for updating CB Back -Up from time to time based on updates provided by the software manufacturer, and any failure of Customer to perform such updates shall relieve Charter from any responsibility to ensure that CB Back -Up remains operational. Except to the limited extent described in the foregoing sentences, Charter makes no warranties of any kind (express or implied) regarding CB Back -Up and disclaims any and all warranties pertaining to CB Back -Up (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). IN ADDITION TO, BUT WITHOUT ABROGATING OR LIMITING THE TERMS SET FORTH IN THE LIMITATION OF LIABILITY SECTION OF THIS AGREEMENT, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE CBCR v2 :00600000007pF9k PERFORMANCE OR NON - PERFORMANCE OF CB BACK -UP REGARDLESS OF CAUSE OR FAULT. CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF CB BACK -UP SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CHARTER FOR CB BACK -UP SERVICE. In the event the functionality of the CB Back -Up service cannot be maintained by Charter or the manufacturer, Charter shall have the right to discontinue providing the service immediately and Charter shall credit Customers account for any pre- paid Monthly Service Fees attributable to the service, except where such lack of functionality is caused by the Customer or any end user gaining access to the service through the Customer's facilities, equipment, or point of access. Customer shall not be relieved of its responsibility to continue to pay for CB Back -Up in the event CB Back -Up does not function property as a result of Customers failure to install and configure the software, activate the service or install manufacturer - provided updates. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES (1) THAT IT IS CUSTOMER'S SOLE RESPONSIBILITY TO CREATE AND RETAIN THE CB BACK -UP PASSWORD THAT IS NECESSARY FOR ACCESS TO ANY DATA STORED VIA THE CB BACK -UP SERVICE AND (2) THAT CHARTER HAS NO ACCESS TO AND DOES NOT KNOW NOR KEEP ANY RECORD OF THE PASSWORD CREATED BY CUSTOMER. FAILURE BY CUSTOMER TO RETAIN CUSTOMER'S CB BACK -UP PASSWORD SHALL RESULT IN COMPLETE LOSS OF ACCESSABILITY TO DATA STORED VIA THE CB BACK -UP SERVICE. (m) Supplemental CB Hosting Service. This Hosting Service subsection shall only apply if one of Charters Hosting Services ( "Hosting ") is included in this Service Agreement or any related Service Order. Charter will provide to Customer Hosting Service in accordance with the Specifications associated with the plan Customer has selected on the Service Order. I. Third Party Software via Hosting Service. The Hosting Service will permit access to a variety of resources available from selected third parties, including developer tools, communication forums and product information (collectively," Hosting Software "). The Hosting Software, including any updates, enhancements, new features, and /or the addition of any new Web properties, may subject to end user license agreements between such third parties and Customer. Version changes of any such software compatibility and /or suitability with any other Customer provided software shall be Customer's responsibility. ii. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE HOSTING SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED IN WRITING BY CHARTER. WITHOUT LIMITING OR ABROGATING THE TERMS SET FORTH IN SECTION 7, CHARTER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE HOSTING SOFTWARE, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT. iv. Domain Names. Customer shall be solely responsible for registering for or renewing a desired domain name, Charter disclaims such responsibility, and Customer acknowledges that Charter does not guarantee that Customer will be able to register or renew a desired domain name, even if an inquiry indicates that domain name is available at the time of such inquiry. v. Specification Limitations. Individual websites may not at any time exceed the Hosting Specifications identified on the applicable Service Order. If a Customer's Hosting account is found exceed the Specifications set forth in the applicable Service Order, or is adversely impacting Charters network or server(s), Charter may (i) contact the Customer to resolve the issues; or if Customer has exceeded the then - applicable Specifications in any given month, (ii) upgrade the Customer's account on the next available billing cycle to the next service level tier or (iii) suspend of terminate the Hosting Service. Notwithstanding anything to the contrary, in the event Customer's use of the Hosting Service is causing an adverse impact on Charter's network or servers, Charter may (i) suspend or terminate the Hosting Service or (ii) terminate the Agreement in its entirety. vi. Limitation of Charter - Provided Services. Customer understands and agrees that certain services are not provided by Charter as part of the Hosting Service (e.g.,, Charter does not provide nor offer web page creation, development, design or content services). vii. No Additional Warranties. Charter makes no warranties of any kind (express or implied) regarding Hosting and hereby disclaims any and all warranties pertaining thereto (including but not limited to implied warranties of title, non - infringement, merchantability, or fitness for a particular purpose). IN ADDITION TO, BUT WITHOUT ABROGATING AND LIMITING THE TERMS SET FORTH IN THE LIMITATION OF LIABILITY SECTION OF THIS AGREEMENT, CHARTER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NON - PERFORMANCE OF CHARTER HOSTING REGARDLESS OF CAUSE OR FAULT. CHARTER'S MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO CUSTOMER'S PURCHASE OR USE OF THE HOSTING SERVICE SHALL IN NO EVENT EXCEED THE AMOUNT PAID CBCR v2 :00600000007pF9k BY CUSTOMER TO CHARTER FOR HOSTING SERVICE. viii. Hosting Fees. The applicable Service Order sets forth the Monthly Service Fees for the Hosting Service. Customer is responsible for payment whether or not the hosting platform is used. Customer shall not be relieved of its responsibility to continue to pay for Hosting in the event Hosting does not function properly as a result of (i) Customer's failure to install or properly use any software; or (ii) Customer's failure to utilize in any way or less than the maximum Specifications the Hosting Service. ix. Content Liability and Use Restrictions. Customer acknowledges Charter exercises no control whatsoever over the content of the information passing through Customer's site(s) and that it is Customer's sole responsibility to ensure that Customer and Customer's users use of the Hosting Service complies at all times with all applicable laws and regulations and Charter's AUP. Upon activation of Customer's account, Charter shall have the right to disclose any, or all available information collected from Customer to law enforcement authorities upon written request by such authorities. Information that may be disclosed includes, but is not limited to IP addresses, account history, and files stored on Charter servers. In addition to the foregoing, Customer expressly understands and agrees that the following activities are prohibited. In the event that Customer engages in such activities, Charter shall have the right to suspend or terminate the Hosting Services and /or this Agreement: a. The hosting of unlicensed software that is available to the public; b. Use of software or files that contain computer viruses or files that may harm user's computers; C. Any attempt or actual unauthorized access by Customer or through Customer's equipment to any Charter website or the website of any Charter customer; d. The collection or any attempt to collect personally identifiable information of any person or entity without their express written consent. Customer shall maintain records of any such written consent throughout the Term (and any Renewal Term) of this agreement and for three years thereafter; e. Any action which is harmful or potentially harmful to the Charter server structure; f. Running a banner exchange, free adult tgp (thumbnail gallery post) and /or free adult image galleries on your website; g. Inclusion of sites with material, links, or resources for hacking, phreaking, viruses, or any type of site that promotes or participates in willful harm to Internet sites or providers. x. Impositions on Customer's End Users. Customer is responsible for charging and collecting from Customer's end -user customers any and all applicable taxes. If Customer fails to impose and /or collect any tax from its end users or customers as required herein, then, as between Charter and Customer, Customer shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that Customer has agreed to pay or impose on and /or collect from Customer's end users or customers, Customer agrees to indemnify and hold harmless Charter for any costs incurred as a result of actions taken by the applicable taxing authority to collect such tax from Charter due to Customer's failure to pay or collect and remit such tax to such authority. NO THIRD -PARTY HARDWARE OR SOFTWARE SUPPORT. Customer is responsible for the installation, repair and use of Customer - supplied third -party hardware and /or software. For purposes of this Agreement the Hosting Software shall be considered third party software. Charter does not support third -party hardware or software supplied by Customer. Any questions concerning third - party hardware or software should be directed to the provider of that product. Charter assumes no liability or responsibility for the installation, maintenance, compatibility or performance of third party software, any Customer - supplied hardware or software with the Services. If such third -party equipment or software impairs the Services, Customer shall remain liable for payments as agreed (if any) without recourse for credit or prorated refund for the period of impairment. Charter has no responsibility to resolve the difficulties caused by such third -party equipment or software. If, at Customers request, Charter should attempt to resolve difficulties caused by such third -party equipment or software, such efforts shall be performed at Charter's discretion and at then - current commercial rates and terms. 8. CUSTOMER USE. Customer agrees not to re -sell or re- distribute access to the Service(s) or system capacity, or any part thereof, in any manner without the express prior written consent of Charter. Customer agrees not to use or permit third parties to use the Service(s), including but not limited to the Equipment and software provided by Charter, for any illegal purpose, or to achieve unauthorized access to any computer systems, software, data, or other copyright or patent protected material. Customer agrees not to interfere with other customers' use of the Equipment or Services or disrupt the Charter Network, backbone, nodes or other Services. Violation of any part of this section is grounds for immediate Termination of this Service Agreement and /or all Service Orders in addition to any other rights or remedies Charter may have hereunder. 9. PERFORMANCE. Charter will use commercially reasonable efforts in keeping with normal industry CBCR V2 :00600000007pF9k standards to ensure that the Service is available to Customer twenty -four (24) hours per day, seven (7) days per week. It is possible, however, that there will be interruptions of Service. Specifically, Customer understands and agrees that the Service 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 interruptons /outages caused by the Customer, its agents and employees, or by a Force Majeure Event, shall not constitute a failure by Charter to perform its obligations under this Service Agreement, and Customer will not hold Charter at fault for loss of Customer revenue or lost employee productivity due to Service outages. iii After the occurrence of two (2) such events of Customer default in any twelve (12) month period of time, terminate this Service Agreement and /or any or all of the applicable Service Order(s). If Termination is due to noncompliance by the Customer, Customer must pay Charter a Termination charge (a "Termination Charge "), which the parties recognize as liquidated damages. This Termination Charge shall be equal to fifty percent (50 %) of the unpaid balance of the Monthly Service Fees that would have been due throughout the remainder of the applicable Service period plus one hundred percent (100 %) of (1) the outstanding balance of any and all One -Time Charges plus (2) any and all previously waived One -Time Charges. 10. DEFAULT; SUSPENSION OF SERVICE; TERMINATION. (c) Default by Charter Charter shall be in default under No express or implied waiver by Charter of any event of this Service Agreement in the event that Charter does default shall in any way be a waiver of any further one (1) or more of the following (each instance subsequent event of default. Nothing herein, including, individually to be considered a separate event of but not limited to Termination, shall relieve Customer of its default), and Charter fails remedy each such obligation to pay Charter all amounts due. w noncompliance or occurrence within thirty (30) days of receipt of written notice from m Customer describing in notice from (a) Default by Customer Customer shall be in default reasonable detail the nature, scope and extent of the under this Service Agreement in the event that the default or noncompliance: Customer does one (1) or more of the following (each i Charter fails to comply with the terms of this individually to be considered a separate event of Service Agreement and/or or any or all of the default) and the Customer fails to correct each such applicable Service Order(s); noncompliance within twenty (20) days of receipt of written notice in cases involving non - payment or ii Charter files or initiates proceedings or has within thirty (30) days of receipt of written notice in proceedings filed or initiated against it, seeking cases involving any other noncompliance: liquidation, reorganization or other relief (such as i Customer is more than thirty (30) days past due appointment of a trustee, receiver, liquidator, with respect to any payment required hereunder; custodian or such other official) under any bankruptcy, insolvency or other similar law and ii Customer otherwise has failed to comply with the such proceedings are not dismissed within sixty terms of this Service Agreement or any other (60) days. Service Order(s) incorporated herein by (d) Customer's Right to Terminate and Termination execution thereof by the parties; or Charge iii Customer files or initiates proceedings or has i Customer shall have the right, at its option and in proceedings filed or initiated against it, seeking addition to any other remedies it may have, to liquidation, reorganization or other relief (such as terminate any applicable Service Order(s), if the appointment of a trustee, receiver, liquidator, underlying event of default and /or noncompliance custodian or such other official) under any by Charter is limited to Services provided under bankruptcy, insolvency or other similar law and the applicable Service Order(s) or this Service such proceedings are not dismissed within sixty Agreement, if such noncompliance is not so (60) days. limited, provided that Charter's diligent efforts to (b) Charter's Right to Terminate and Termination Charge correct such breach are not commenced and In the event Customer is in default, Charter shall have pursued within thirty (30) days after Charter's the right, at its option, and in addition to any other receipt of a written notice from the Customer . remedies it may have, to: describing in reasonable detail the nature, scope and extent of the event of default/noncompliance. i Immediately suspend Services to the Customer until such time as the underlying noncompliance ii If Termination is due to noncompliance by has been corrected without affecting Customer's Charter, Charter shall reimburse Customer for on -going obligation to pay Charter any amounts any pre -paid, unused Monthly Service Fees due under this Agreement (e.g., the Monthly attributable to such terminated Service Order(s). Service Fees), as if such suspension of Services In addition, if Termination is due to had not taken place; noncompliance by Charter within one (1) year of the applicable Tum -Up Date, Charter shall pay a ii Terminate the Services; or Termination Charge, which the parties recognize CBCR v2 :00600000007pF9k as liquidated damages, equal to a portion of any One -Time Charge that has already been paid by the Customer to Charter relative to Service at the sites covered by the terminated Service Order. This Termination Charge Charter must pay Customer shall be equal to the product of a) the number of months (or portion thereof) remaining in the initial twelve (12) months of the initial Service Period at the time of Termination and b) a ratio in which the numerator is the total of One - Time Charges paid to date and the denominator is twelve (12). 11. LIMITATION OF LIABILITY. PLEASE READ THIS SECTION CAREFULLY, IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY. (a) Limited Warranty At all times during the Service Period, Charter warrants that it will use commercially reasonable efforts in keeping with industry standards to cause the Services to be available to the Customer. THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER. EXCEPT AS OTHERWISE STATED IN THIS SERVICE AGREEMENT, CHARTER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED 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 SERVICES HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND /OR FAILURES), 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 APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. Any warranty claim by Customer must be made within thirty (30) days after the applicable Services have been performed. Charter's sole obligation and Customer's sole remedy, with respect to any breach of the limited warranty set forth herein, shall be a prorated refund of the fees paid by Customer based on the period of time when the Services are out of compliance with this limited warranty provision. (b) Content Customer acknowledges that any content that Customer may access or transmit through any Service is provided by independent content providers, over which Charter does not exercise and disclaims any control. Charter neither previews content nor exercises editorial control; does not endorse any opinions or information accessed through any Service; and assumes no responsibility for content. Charter specifically disclaims any responsibility for the accuracy or quality of the information obtained using the Service. Such content or programs may include, without limitation, programs or content of an infringing, abusive, profane or sexually offensive nature. Customer and their authorized users accessing other parties' content through Customers facilities do so at Customers own risk, and Charter assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content. (c) Damage, Loss or Destruction of Software Files and /or Data. Customer agrees that Customer uses the Services and Equipment supplied by Charter at its sole risk. Charter does not manufacture the Equipment, and the Services and Equipment are 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 Customer's hardware, software, files, data or peripherals which may result from Customer's use of any Service. Charter does not warrant that data or files sent by or to Customer will be transmitted in uncorrupted form or within a reasonable period of time. (d) Unauthorized Access If Customer chooses to run or offer access to applications from its equipment that permits others to gain access through the Network, Customer must take appropriate security measures. Failing to do so may cause immediate Termination of Customers Service by Charter without liability for Charter. Charter is not responsible for and assumes no liability for any damages resulting from the use of such applications, and Customer 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 Customer's computers, its internal network and /or the Network through Customers equipment, and Customer shall hold Charter harmless from and indemnify Charter against any such claims, losses, or damages to the full extent arising from such access. (e) Force Maieure Event Customer agrees that Charter shall not be liable for any inconvenience, loss, liability CBCR v2 :00600000007pF9k or damage resulting from any failure or interruption of Services, 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 operation of the Services. 12. INDEMNIFICATION. In addition to its specific indemnification responsibilities set forth elsewhere in this Service Agreement and as permissible under applicable law, Customer 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 Charter Indemnified Parties, including but not limited to, reasonable attorneys' fees and court costs incurred by Charter Indemnified Parties under this Service Agreement, to the full extent that such arise from Customer's misrepresentation with regard to or noncompliance with the terms of this Service Agreement and any or all Service Orders, Customers failure to comply with applicable law, and /or Customers negligence or willful misconduct. Charter Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim at Customers cost and Customer agrees to cooperate with Charter Indemnified Parties in such case. 13. TITLE. Title to the Equipment shall remain with Charter during the applicable Service Period. Customer shall keep that portion of the Equipment located on Customer Premises free and clear of all liens, encumbrances and security interests. Upon Termination of Service or expiration of a Service Order's Service Period for a specific site, Charter shall have the right to remove all Equipment components and /or leave any of such components in place, assigning title and interest in such components to the Customer, it being understood that no further notice or action is required to accomplish the assignment contemplated hereunder. Charter shall have the right to remove the Equipment and all components within sixty (60) days after such Termination. 14. COMPLIANCE WITH LAWS. Customer shall not use or permit third parties to use the Services 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. 15. PRIVACY. Charter treats private communications on or through its Network or using any Service as confidential and does not access, use or disclose the contents of private communications, except in limited circumstances and as permitted by law. Charter also maintains a Privacy Policy with respect to the Services in order to protect the privacy of its customers. The Privacy Policy can be found on Charter's website at www.Charter- Business.com. Customer represents and warrants that Customer has read the Privacy Policy and agrees to be bound by its terms. Customer expressly understands and agrees that the Privacy Policy may be updated or modified from time to time by Charter, with or without notice to Customer. 16. GENERAL CUSTOMER REPRESENTATIONS AND OBLIGATIONS. Customer represents to Charter that Customer has the authority to execute, deliver and carry out the terms of this Service Agreement and associated Service Orders. Customer also represents that any person who accesses any Services through Customer's equipment or through the Network facilities in Customer's Premises will be an authorized user, will use the Service, Network and /or Network facilities in an appropriate and legal manner, and will be subject to the terms of this Service Agreement. Customer shall be responsible for ensuring that all such users understand the Service Agreement and comply with its terms. The Customer shall be responsible for all access to and use of the Service by means of the Customer's equipment, whether or not the Customer has knowledge of or authorizes such access or use. The Customer shall be solely liable and responsible for all charges incurred and all conduct through either authorized or unauthorized use of the Service, until the Customer informs Charter of any breach of security. Charter expressly prohibits using the Service for the posting or transferring of sexually explicit images, material inappropriate for minors, or other offensive materials. By signing, Customer expressly acknowledges that Customer will not post or transfer or permit others to post or transfer such materials using the Service.. 17. NOTICES. Any notices to be given under this Service 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: Charter Communications ATTN: Charter Business 4781 Irwindale Avenue Irwindale, CA 91706 with copies to: Charter Communications ATTN: Legal Department Dept: Corporate Operations 12405 Powerscourt Drive St. Louis, MO. 63131 and Charter Communications ATTN: CB Corporate — Contracts Management 12405 Powerscourt Drive St. Louis, MO. 63131 If to Customer: Rosemead City Hall ATTN: Kesh Gurmel CBCR Q :00600000007pF9k 8838 VALLEY BLVD ROSEMEAD,CA 91770 -1714 Each party may change its respective address(es) for legal notice by providing notice to the other party. 18. MISCELLANEOUS. (a) Entire Agreement This Service Agreement and any related, executed Service Order(s) constitute the entire Agreement with respect to the Services, Network and Equipment. This Service Agreement supersedes all prior understandings, promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the subject matter of this Service Agreement. (b) No Amendments. Supplements or Changes This Service Agreement and the associated executed Service Order(s) may not be amended, supplemented or changed without both parties' prior written consent. (c) No Assignment or Transfer The parties may not assign or transfer (directly or indirectly by any means, by operation of law or otherwise) this Service Agreement and the associated Service Order(s), or their rights or obligations hereunder to any other entity without first obtaining written consent from the other party, which consent shall not be unreasonably withheld, provided, however, that Charter may assign this Service Agreement and the associated executed Service Order(s) to affiliates controlling, controlled by or under common control with Charter, or to its successor -in- interest in the event Charter sells the underlying communications system, without Customers consent. (d) Severability If any term, covenant, condition or portion of this Service Agreement, any related, executed Service Order(s) shall, to any extent, be invalid or unenforceable, the remainder of this Service Agreement, any related, executed Service Order(s), shall not be affected and each remaining term, covenant or condition shall be valid and enforceable to the fullest extent permitted by law. (e) Section Headings The section headings are furnished for the convenience of the parties and are not to be considered in the construction or interpretation of this Service Agreement. (f) Governino Law This Service Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of Missouri, without regard to conflicts of law provisions. Customer agrees that the federal and state courts of Missouri alone have jurisdiction over all disputes arising under this Agreement, and Customer consents to personal jurisdiction of those courts with respect to any disputes arising under this Agreement. IN ANY AND ALL CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH THEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, CUSTOMER AND CHARTER EACH HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY JURY. (g) Jointly Drafted Both parties hereby acknowledge that they participated equally in the negotiation and drafting of this Service Agreement and any related, executed Service Order(s) and that, accordingly, no court construing this Service Agreement and any related, executed Service Order(s) shall construe it more stringently against one party than against the other. (h) No Third Party Beneficiaries The parties agree that the terms of this Service Agreement and the parties' respective performance of obligations as described are not intended to benefit any person or entity not a party to this Service Agreement, that the consideration provided by each party under this Service Agreement only runs to the respective parties hereto, and that no person or entity not a party to this Service Agreement shall have any rights under this Service Agreement nor the right to require the performance of obligations by either of the parties under this Service Agreement. (i) Waiver Except as otherwise provided herein, the failure of Charter to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision. CBCR v2 :00600000007pF9k Deloitte & Touche LLP Suite 1200 695 Town Center Drive Costa Mesa, California 92626 -7188 Tel: 17141436 -7100 Fax: (714) 436-7200 www.deloitte.com FINANCE MAY 2 4 2004 RECEIVED Deloitte &Touche VIA CERTIFIED MAIL # 7002 1000 0005 6964 4961 May 17, 2004 Mr. Don Wagner Assistant City Manager Administration City of Rosemead 8838 E. Valley Blvd. Rosemead, CA 91770 RE: , Request pursuant to the California Public Records Act for Cable Television Franchise Data: Franchise Fees Paid and Franchise Term Remaining Franchise Name: Rosemead 1D: CA1361 Dear Mr. Wagner: The Assessor of Los Angeles County and Deloitte and Touche LLP (the authorized representative for Charter Communications, Inc. as it pertains to property tax matters in Los Angeles County) are currently in discussions concerning the correct valuation of the franchise possessory interest located in your jurisdiction. These discussions pertain to assessment appeals that have been filed by Charter Communications, Inc. for a number of past lien dates for this possessory interest assessment. Certain key information cannot be provided by Charter Communications because of limitations on information system capabilities and the fact historical information was not transferred upon the acquisition of some systems by Charter. The information from the franchise jurisdiction will also verify the accuracy of the data Charter Communications has been able to provide to the Assessor. Therefore, both the Assessor and Deloitte and Touche LLP jointly request answers to the following questions. This request is made pursuant to the California Public Records Act [CPRA] (sections 6250 to 6270 of the Government Code). This act specifies that the government agency receiving a request has 10 days to comply with the request. Accordingly, we request that this data be provided by May 30, 2004. If a response in 10 days is not possible, the unusual circumstances requiring additional time must be disclosed in writing to the requestor. In no event shall this extension of time exceed an additional ten working days. (Government Code section 6256.1): This information is part of the public record in every jurisdiction and is used in the preparation of government budgets. We believe there should be no question regarding its release upon a formal request under the CPRA. While the CPRA requires the release of actual documents, this may result in this task being Deloitte - Pacifit Southwest: Carlsbad Costa Mesa Las Vegas Los Angeles Phoenix Reno San Diego Touche Tohmatsu City of Rosemead Page 2 of 4 CPRA Cable Franchise Data Request May 15, 2004 more laborious than need be. If it is more convenient, simply complete the answer block' under each question below. Please provide the name of a person we can follow up with if there are any additional questions. We also request that you verify the correctness of the FCC Identification Number assigned to this franchise as noted at the beginning of this letter: If this number is incorrect, please strike it out and replace with the correct number. The following are our questions: What amount was paid in franchise fees paid by Charter Communications, Inc: (or its predecessor) for the calendar year ending December 31,.1997? -:;r-,_ D,. /199'4 -Jig 3,9 /�?V What amount was paid in franchise fees paid by Charter Communications, Inc. (or its predecessor) for the calendar year ending December 31, 1998? What amount was paid in franchise fees paid by.Charter Communications, Inc. (or its predecessor) for the calendar year ending December 31, 1999? � / T� rv,1w What amount was paid in franchise fees paid by Charter Communications, Inc. for the calendar year ending December 31, 2000? 3 0, Zooa What amount was paid in franchise fees paid by Charter Communications, Inc. for the calendar year ending December 31, 2001? What amount was paid in franchise fees paid by Charter Communications, Inc. for the calendar year ending December 31, 2002? - /� Z What amount was paid in franchise fees by Charter Communications, Inc. for the calendar year ending December 31, 2003? City of Rosemead Page 3 of 4 CPRA Cable Franchise Data Request May 15, 2004 What was the expiration date of the franchise agreement in force between Charter Communications, Inc. (or its predecessor) and the City of Rosemead for this franchise on January 1, 1997. If there was no franchise agreement in force, please state this. O What was the expiration date of the franchise agreement in force between Charter Communications, Inc. (or its predecessor) and the City of Rosemead for this franchise on January l 1998. If there was no franchise agreement in force, please state this. What was the expiration date of the franchise agreement in force between Charter Communications, Inc. (or its predecessor) and the City of Rosemead for this franchise on January 1, 1999. If there was no franchise agreement in force, please state this. What was the expiration date of the franchise agreement in force between Charter Communications, Inc. and the City of Rosemead for this franchise on January 1, 2000. If there was no franchise agreement in force, please state this.. tw. 0 2A a� What was the expiration date of the franchise agreement in force between Charter Communications, Inc. and the City of Rosemead for this franchise on January 1, 2001. If there was no franchise agreement in force, please state this. 1 / / What was the expiration date of the franchise agreement in force between Charter Communications, Inc. and the City of Rosemead for this franchise on January 1, 2002. If there was no franchise agreement in force, please state this. What was the expiration date of the franchise agreement in force between Charter Communications, Inc. and the City of Rosemead for this franchise on January 1, 2003. If there was no franchise agreement in force, please state this. 1I / City of Rosemead Page 4 of 4 CPRA Cable Franchise Data Request May 15, 2004 What was the expiration date of the franchise agreement in force between Charter Communications, Inc. and the City of Rosemead for this franchise on January 1, 2004. If there was no franchise agreement in force, please state this. I.tti- Z b 1 0 We are appreciative of your cooperation in responding to this information request. Please contact either Andrew Stephens of the Office of the Assessor, County of Los Angeles at (213) 974 -3198 or John Corum of Deloitte and Touche LLP at (714) 436 -7510 if you have any questions or concerns regarding this information request. Pursuant to the California Code of Regulations, Title 18, Property Tax Rule 322, information deemed relevant by the Assessment Appeals Board to a proceeding before it may be subpoenaed by the Assessment Appeals Board upon the request of the Assessor and /or the Applicant. Both the Assessor and Deloitte believe subpoenas should only be used as a last resort. We look forward to your timely response to this information request and thank you in advance for your cooperation and efforts. Please return this copy (with the information requested) to John Corum at the address below. Please retain a copy of this letter for your records. Mr. John Corum Deloitte and Touche LLP 695 Town Center Drive, Suite 1200 Costa Mesa, CA 92626 -1989 E -mail: jcorum @deloitte.com Name of contact person at responding jurisdiction (please print): r74b _ ,4 A Telephone Number: I (6z6)5�� —zc I Sincerely, O K /�j�� UV UL'Y! � l John Corum Manager Deloitte and Touche LLP Property Tax Services Group cc: Mr. Andrew Stephens, Office of the Assessor County of Los Angeles WALLIN, KRESS, REISMAN & KRANITZ LAW OFFICES 2800 TWENTY- EIGHTH STREET, SUITE 315 SANTA MONICA, CALIFORNIA 90405 -6205 TELEPHONE (310) 450 -9582 FAX (310) 450 -0506 TO: Mayor and City Council /� FROM: Cary S. Reisman, Esq. 05; �-^ DATE: June 15, 2000 RE: Charter Communications Enclosed please find the revised Franchise Agreement with Charter Communications for consideration at the June 27, 2000 City Council Meeting. There are no substantive changes to the Agreement itself. Please note the changes to Exhibit "D," paragraphs I and 2, as well as the Preamble to Exhibit "E." PERFORMANCE /FRANCHISE BOND Know all men by these presents, BOND NO. 51 S 103226856 00 539 That Charter Communications Entertainment Il. LL C as Principal, and Travelers Casualty and Surety Company of America having its executive office in One Tower Square. Hartford. CT 06183 as- Surety, are held and firmly bound unto City of Rosemead Attn• City Clerk 8838E Valley Boulevard P.O. Box 399 Rosemead, CA 91770 hereinafter referred to as Obligee in the penal sum of Sixty Thousand and NO /100 Dollars ($60.000.00 for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents, the liability of the Surety being limited to said penal sum regardless of the number of years this bond remains in force or is renewed, of the number of premiums that shall be payable or paid, the number of Subscribers to the system and /or legal fees which may be required and incurred. WHEREAS, the Obligee has granted a franchise to Principal to use the public streets and places within the Municipality to transmit and distribute electrical impulses through an open line- coaxial antenna system for television receivers located within said City of Rosemead. CA . NOW THEREFORE, the condition of this obligation is such, that if.the above bound principal shall faithfully perform, well and truly observe and fulfill the terms and conditions of the franchise, then this obligation shall be null and void; otherwise, it shall remain in full force and effect until terminated or cancelled. PROVIDED, HOWEVER, it shall be a condition precedent to any right of recovery hereunder, that in event of any default on the part of the Principal, a written statement of the particular facts showing the date and nature of such default shall be immediately delivered to the Surety by certified mail at One Tower Square, Hartford, CT 06183. AND PROVIDED FURTHER that no action, suit or proceeding shall be had or maintained against the Surety on this instrument unless the same be brought or instituted and process served upon the Surety within twelve months after an act of breach or cancellation of this bond or termination of said franchise, whichever occurs first. This Bond may be terminated or cancelled by Surety by giving thirty (30) days prior notice in writing to Principal and said Obligee, such notice to be given by certified mail. Such termination or cancellation shall not affect any liability incurred or accrued under this Bond prior to the effective date of such termination or cancellation. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this .29TH day of November, 2000. WITNESS: Approved and Accepted by: Obligee: Title Charter Communications Entertainment I WX (Seal) Don R. Johnson, Vice President (Title) Travelers Casualtv and Suret Comoanv of America (Surety) By ndrew P. Thome Attorney -In -Fact, � - W-1 TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELERS CASUALTY AND SURETY COMPANY _ - FARMINGTON CASUALTY COMPANY Hartford, Connecticut 06183 -9062 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S) -IN-FACT KNOW ALL PERSONS BY THESE PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, corporations duly organized under the laws of the State of Connecticut, and having their principal offices in the City of Hartford, County of Hartford, State of Connecticut, (hereinafter the "Companies ") hath made, constituted and appointed, and do by these presents make, constitute and appoint: Andrew P. Thome, Margaret L. Veith, Dana A. Dragoy, Justine P. Weber or Debra A. Owen, of St. Louis, Missouri, their true and lawful Attomey(s) -in -Fact, with full power and authority hereby conferred to sign, execute and acknowledge, at any place within the United States, the following instnmment(s): by his/her sole signature and act, any and all bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto and to bind the Companies, thereby as fully and to the same extent as if the same were signed by the dully authorized officers of the Companies, and all the acts of said Attomey(s) -in -Fact, pursuant to the authority herein given, are hereby ratified and confirmed. This appointment is made under and by authority of the following Standing Resolutions of said Companies, which Resolutions are now in fall force and effect: VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the company and may give such appointee such authority as Iris or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of D at any time may remove any such appointee and revoke the power given him or her. VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary. VOTED: That any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal, if required) by one or more Attomeys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority. This Power of Attorney and Certificate of Authority is signed and sealed by facsimile under and by authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, which Resolution is now in full force and effect: VOTED: That the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attomeys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. (5 -00 Standard) puog `AmpioaS ;ue ;slssV uosupgor'W uo){ 'ay • f �9 .i aY+4 r9' E ) . ?Q 2 NNOa m r(8 ;�L$6I O r '@JOiIWH a' � m n tiro ? o a' ( ��n9V� S ONY Al� - 00 oz ` z@CPIDAON 3o Sep L146Z snp Pa1t(j 7nOpoouuoZ) jo oluIS `pjojiS Hjo ,il!o oql ui `Xuudiuoo aql ;o OOUJO awOH Oql lE PODS Puu Paui ? S •aOxo; uI Mou axe `,CluoglnV 3o oluoUmoo oql m quo; las se `sxolOaxrQ ;o spxeog alp ;o suopnlosag 8uipumS ail imp 'aiouuaglny puu `.pojonai uaoq lou seq puu ooxo; Ipl3 uI sunuuai .iluoglnV ;o a3EOgWZD pue htUO lV 3o iaMOd pagounu puu SuloSaxo; aql legs A,�.L 2IHJ ,IEHZIH< -I OQ `lnanoauuoo ;o alLIS ail ;o suo.1modioo KOols'ANiVdNoa A.L'IVRSVJ NIOZJNIINRIVd pue AN?VdNIOJ AlaaflS (I Ay IVRSVJ S2I3 IdAV1LL `VJIHaWV 30 ANVagoj AIH HRS QNiV Al fVRSVJ SHa laAVHL 3o txE;axaaS luelslssV `Pooisiopun aql `I HZVOLHIIIHJ ;Ineallal •0 aixew O!Ignd tie;oN Looz '0£ au saridxa uoissiwwoo ,(W 4Tnvw '\A 0 '' ;oaxagl suopnloso7a Surp=S aql xapun aolgo xaq/sul ;o ,Sluoglne lsm pl Xq suopmodxoo agl;o;legaq uo luamnxus aql polnaxa o oqs /aq imp pue `sp:as alExodjoo ions axe luaumnsm pps all o1 paxr u spas aql legl 'saopexodioo pees ;o spas oql smoull ags/aq ltgl :luaun=ul anoqu ail polnoaxa goMm put uI paquosap suopExodroO aql `ANIVdNIOJ A.L'IVRSVJ NIO,LONRNRHV3 Put ANIVdIVOJ UaHfIS QNV ALIVRSVJ SHIa'IaAV2Hy `VJRI3LNV 30 ANIVdLNOJ ALR2IRS QN V AL IVRSVJ SiI3IdAV2IL 30 luaplsaxd aO.A roluaS si ais /ai imp :its put asodap pTp `uxoros Sinp am fq Smaq `ogM `umou-I ow of NOSdWOHy • M a0II030 oureo Xlleuosxad oui axo;aq 000z `1sanV 3o XuP g1LI snp u0 ;uaplsaJd aaiAxotuag uosdwogl •M o6joa0 a � • `fib : � NNOO om . Q2IO!U 30 A.INROJ ANIVdWOJ Ay'HVf1SVJ NIO.L`JNMiHVd AKVdNOJ Ua HRS QNIV A.L IVRSVJ SH377AVIU VJRH3NV aO ANIVdWOJ AlaWnS aKV Al'IVRSVJ S2HTIIAV2U Pxo.11MH 'SS { .IRJI.IOamoo 30 HSV.IS '000z `1snSnV ;o ,fEP MLI snp paxW olaxag aq of sleas alexodloo xlagl puu 1naplsaxd aOIA xoluaS xragl ,iq pouSls aq of luaumxlsur sup pasneO aneg ANIVdNIOJ AL IVRSVJ NOL`JNIINRIV3 Put ANtVdLQOJ AIMIS QNIV A.L'IVRSVJ SHH'IdAVH,L `VJIH3WV AO ANIVdWOJ A,LMIS QNV A.LNRSVJ SKH'IaAVHJ. `JOd2IdHM SONLLIM NII State of Missouri ss: County of St. Louis On November 29th, 2000 before me, a Notary Public in and for said County and State, residing therein, duly commissioned and swom, personally appeared ANDREW P. THOME known to me to be Attorney -in -Fact of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of said corporation, and he duly acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above. DANA A. DRAGOY Notary Public - Notary Seal STATE OF MISSOURI My Commission Expire St. Louis County A Z \N — ), y coninussion Expires: SW. 20,2001 Notary Public 360212 -6 -66 r i CHARTER COMMUNICATIONS 2215 West Mission Road Alhambra, CA 91802 -1451 Charter Pipeline Internet Access Agreement Charter Communications ( "Charter") will provide and Customer will take the Charter Pipeline Internet Access Service and will lease certain equipment (such service and equipment collectively referred to as the "Service ") on the terms and condition contained in Attachments to this cover page (this cover page and such Attachments 1, 2, 3, and 4 referred to collectively as the "Agreement "). Customer may apply for new or additional Service at any time by completing a new Service Registration Form (Attachment 1), with such new form to become a part hereof. Customer Account No. 10 3t0- 31027 -1 Contact Person at Charter: Phone: Samuel J. Kason (626) 537 -6637 Email: skason @earthlink.net Customer Service Phone: Phone: (626) 537 - 6633/(888) 852 -2235 Email: eln- cable @earthlink.net G'iTr or evSWZ4,P fl1AAt CQ �r�T Customer Name Service Address: Billing Address: (IF P1rF"t14T) bi836 Z. V411f SAMEAASPSERVICE ADDRESS Street Address Street Address Ast'wb*]) 14 91770 City /State /Zip ,4 ,v£nd OcAwt1- Customer Contact F etiruai y_ 2000 Customer Signature Date DONALD WAGNER, ASST CITY MGR Print Name and Zitle nature City /State /Zip FED. Tax ID Number 95- 2079994 Authorized Char Signature J i].s�vtt - llSal.r— A«T Print Name and Title —z4 ,— 06 Charter Acceptance Date Notice: '114s Agree`rt4t will not go into effect until executed by both Customer and Charter. This offer is subject to Charter's credit approval of Customer ATTACHMENT Service Registration Form Customer Name: �r • oG A 4ee /?os�x4rgD F,� Served Address: 88 36 P. VA «£ Y A& VP A 91 770 Account Number: lc3 3102 - 1 Service Package Description: Type of Service: Telco Return ❑ Two Way Type of User: Single User ❑ LAN User [?r Router ❑ Service Package Description: (See Attachment 2 for description of Service) Bronze ❑ Silver ❑ Gold ❑ Platinum E Diamond ❑ Term of Agreement: Z `/Q . PAID Installation Charge: � hrs. @ $ per hour for cable modem setup and installation and up to 311� client stations for internet access. Special Wiring Charge 'y (Coaxial cable plant extension, post -wire construction cost). Recurring Charges for Selected Internet Service Packager ZJr'.5_ W 0 . Other Items: Cable modem (lease) Expanded Web Site: Additional Email Accounts: Other: $ 2 ATTACHMENT Service Agreement Agreement made this 1 6% 14 day of T4NVA -4 2000, by and between Charter Communications, with its principle place of business in Alhambra, California and e, or Ascwa , with its principle place of business in /? OSM..c +� California. Services to be purchased and leased: • Co -Axial Cabling - Includes co -axial cable extension and installation of 1 outlet(s) for modem services. • Cable Modem Installation and Testing. _ • Dedicated Internet Access - Includes l' down and 1/21_ up variable transfer rates, access to: WWW, FTP, IRC, Mail, NetNews, etc... • ( Dial -Up PPP EarthLink Internet Access Account. • I EarthLink Email Account. • 1 Fixed IP Address ($10 per additional IP /up to 8 per modem). • & MBs of disk storage space for web page hosting (no unique domain included). 1 Com21 ComPORT 2000 cable modem lease. Co -Axial Cabling and Post Wirin Cable Modem Installation and Testing Monthly Internet Access Fee -7 z-9N.`7 Additional Items Total ATTACHMENT Terms and Conditions G� 1. Charges: Customer agrees to pay all applicable charges for the Charter Pipeline Internet access service and related equipment (the "Service ") specified on the Service Registration Form (Attachment 1), which includes the Agreement for Cable Service subscription described in Attachment 3. Periodic charges shall be invoiced monthly and are due thirty (30) days net. Amounts not paid within thirty (30) days after the date of the invoice will be considered past due. Prices do not include applicable taxes, for which Customer is responsible. Except for the Internet Service and related equipment rates specified on Attachments 1 and 2, Charter reserves the right to change its rates and charges from time to time and Customer agrees to pay any increase in Charter's regular monthly rates for cable service. At Charter's request, Customer shall post a bond or provide a security deposit to assure payment and the return of any leased equipment. A service charge will be assessed to Customer's account for each check that is returned for insufficient funds. 2. Term: The service term begins when Charter's cable connection has been dully installed and tested and the Service is available for use, regardless of the status of Customer's equipment. The term of the Service ( "Term ") shall initially be as set forth in the Service Registration Form (Attachment 1), and upon expiration shall automatically renew for successive thirty (30) day Terms at Charter's then - current month -to -month rates for comparable service and equipment regardless of the original Term and original pricing, unless either party provides the other thirty (30) days prior written notice that it does not wish to renew. 3. Termination: Customer may terminate Service on thirty (30) days prior written notice and will be liable for all applicable early termination charges described below. Charter may suspend or terminate Service if Customer materially breaches this Agreement including failure to pay for any past due amounts for invoiced services as set forth in Section 1 above, and failure to cure such breach within fifteen (15) days of notice; provided, that Charter may terminate immediately without notice in order to prevent a breach of network security or damage to or degradation of its Internet "or hardwire network integrity, which may be caused by the Customer or anyone using Customer's access, whether authorized by Customer or not, or to comply with any law, regulation, court order, or other governmental request order which requires immediate action, or otherwise to protect Charter from legal liability. Charter will endeavor to give Customer notice regarding the reason(s) for termination as soon as reasonably practicable after such termination. Charter shall not be required to issue any late payment, suspension or termination warning notices and shall. If Service is terminated, Charter shall remove the software and any equipment and software documentation provided to Customer with the Service, for which Customer agrees to pay a disconnect fee. Any restoration of Service will require the payment of a reconnection fee. Early Termination Charges - If the Customer's connection is disconnected prior to the end of the committed Term set forth on the Service Registration Form, and the disconnect is due to any reason other than from a breach of the Agreement by Charter, Customer will pay an early termination charge equal to fifty percent (50 %) of monthly Internet Service and cable service charges multiplied by the number of months remaining in the Term, plus one hundred percent (100 %) of the recurring monthly charges on Attachment 1 for special installation set -up or wiring multiplied by the months remaining in the Term, plus the fee for software and equipment removal then in effect. 4. Rights and Obligations of Customer: Customer shall at its own expense be responsible for all site preparation activities necessary for installation of the Service. Customer shall give Charter and its suppliers reasonable access to Customer's premises at all reasonable times. Customer agrees to comply with Charter's Acceptable Use Policy (Attachment 6) in effect from time to time and Customer shall not use the Service or permit any use of the Service which is illegal, unlawful, or harassing, which infringes upon another's intellectual property rights, or which otherwise constitutes network abuse, and Customer shall be responsible for any such misuse of the Service by any persons accessing the Internet through customer's account. Customer shall indemnify Charter and its respective affiliates against any liabilities incurred by them as a result of such misuse. Customer shall be responsible for communicating with its users of the Service, and for handling all complaints and trouble reports made by such users. Customer must comply with reasonable security procedures and standards with respect El to its own demarcation point that interfaces with the Service. Charter may communicate security issues to Customer from time to time when abuse or misuse is observed or reported by others. Subject to Section 2 hereof, if Customer violates Charter's Acceptable Use Policy, where practicable, Charter shall warn Customer of such violation. After such warning, Charter may immediately terminate Customer's contract for breach if Customer engages in any further violation of such policies. 5. Customer's Equipment and Software: Charter is not responsible for the installation, maintenance, compatibility or performance of any equipment or software not provided by Charter, and Customer shall indemnify Charter and its affiliates against any infringement claims arising out of the use of such third party equipment or software with the Service. If such third party equipment or software impairs the Service, Customer remains liable for payment, and if such third party equipment is likely to cause hazard or service obstruction, Customer shall eliminate such likelihood at Charter's request. "" Charter will troubleshoot difficulties caused by such third party equipment or software at Customer's request, at Charter's standard rates and terms. In the event Customer provides any equipment to interface with the Service, Customer must cooperate with Charter in configuring and managing such equipment in order to implement and operate the Service. 6. Charter Obligations; Disclaimer of Warranties: Charter shall operate and maintain the Service, contingent upon Charter's ability to maintain necessary licenses, Charter's network capacity and connection availability through a long -haul Internet service provider. Customer understands that Charter does not operate or control the Internet or the final connection to the Internet. CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR USE OF THE INTERNET THROUGH CUSTOMER'S ACCOUNT. CHARTER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS REGARDING ANY MERCHANDISE, INFORMATION, PRODUCTS OR SERVICES PROVIDED THROUGH THE INTERNET. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING COMPATIBILITY WITH CUSTOMER'S EQUIPMENT. ANY. NO ADVICE OR INFORMATION GIVEN BY CHARTER'S EMPLOYEES, AGENTS OR CONTRACTORS SHALL CREATE A WARRANTY. UNDER NO CIRCUMSTANCES SHALL CHARTER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT FROM CUSTOMER'S USE OF OR INABILITY TO ACCESS ANY PART OF THE INTERNET OR CUSTOMER'S RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS OF SERVICE, LOSS, THEFT, OR DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE OF THE SERVICE OR IN CONNECTION WITH INSTALLATION OF THE SERVICE. If Customer is dissatisfied with the Service or these Terms and Conditions, Customer's sole remedy is to terminate this Agreement. Charter has no obligation to monitor the Service; however, Charter may monitor the Service and disclose information gained from such monitoring in order to satisfy any law, regulation or other governmental request, to operate the Service and administer Charter's network, or to protect itself or its subscribers. Charter reserves the right to refuse to post or to remove any information or materials in whole or in part, that in its sole discretion are unacceptable, undesirable, or in violation of this Agreement. In no event shall Charter be deemed liable for any failure or delay related to the long -haul Internet Service Provider or due to any cause beyond Charter's control. 7. Username and E -mail Address: Charter shall assign to Customer appropriate means of identification (including a username and email address), with all such means of identification to remain the property of Charter. 8. Internet Service Provider: Customer shall be required to enter into and be bound by the terms and conditions of the End User License Agreement (Attachment 7) with the long -haul Internet Service Provider. Charter reserves the right to change the long -haul Internet Service Provider, and in such event, Customer shall be given notice in writing and may be required to enter into a new end user license agreement "and use a new email address. 9. Nondisclosure: During the term of Service hereunder and for three years thereafter, Customer may not disclose to any third party any of the material terms of this Agreement (including without limitation pricing) unless such disclosure is required by law. 10. Arbitration: Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled in Los Angeles, California by arbitration in the English language in accordance with the Rules of the American Arbitration Association. The Appointing Authority shall be the President of the American Arbitration Association. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The Arbitrator(s)' award may include compensatory damages and costs of action (including attorney's fees) against either party but under no circumstances will the Arbitrator(s) be authorized to nor shall they award punitive damages or multiple damages against either party. 11. For California Customers Only: 1789.3, California subscribers are entitled information: "' "' Under California Civil Code Section to the following specific consumer rights The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at 1 -916- 445 -1254. End of Section Attachment 1 may be revised to reflect a change of Service mutually agreed to by Charter and Customer, and such revised Attachment 1 shall be deemed incorporated herein ATTACHMENT 4 SECURITY NOTICE for Cable Internet Access Internet access via cable is a new and changing technology that delivers high -speed data transfer rates previously only obtainable with expensive complex hardware and dedicated digital lines from a telephone company. Cable access avoids these pitfalls by delivering comparable speeds and significant cost savings. These benefits are achieved by implementing a new approach in networking architecture with the cable medium. In order to effectively use the available bandwidth for data delivery, customers sharing the same radio frequency or data transmission share the same characteristics as a Local Area Network (LAN), whether using an Internet application or not. As such, we advise that customers take the same security precautions when using their cable Internet access as they would in a LAN environment such as disabling shared access to files and printer to prevent unwanted outside access. Charter Communications advises its cable Internet customers of the potential for new security concerns introduced by the cable medium. In general, operating and software systems are never fully documented by their developers, and as such, individuals with intricate knowledge of their components could possibly utilize a feature in a manner that was not intended or planned by the developers. While Charter Communications attempts to provide a secure connection to the Internet, we cannot guarantee or warrant that the security precautions we implement will prevent intrusion into your system. As such, it is necessary that you take these and other steps to help protect your system and data. ATTACHMENT ACCEPTABLE USE POLICY' Charter Communications ( "Charter") is committed to and supports the free flow of information and ideas over the Internet. Charter does not actively monitor nor does Charter exercise editorial control of the content of any web site, electronic mail transmission, mailing list, news group or other material created or accessible over Charter services. However, Charter reserves the right to remove any materials Charter does become aware of that are, in Charter's sole discretion, potentially illegal, could subject Charter to liability, or violate this Acceptable Use Policy ( "Policy "). Violating this Policy may result in cancellation of your Charter Pipeline Internet Access Agreement. The following are violations of Charter's acceptable use policies for commercial customers: A. Reselling the internet access services. B. Activities which are prohibited as high volume include, but are not limited to: 1. Any mailbox exceeding 10MB may, at Charter's discretion, by transferred to a compressed temporary file or storage. Customers will be notified at tha time with further information. Sixty days after this notification, Charter reserves the right to delete the temporary file from the server. 2. Exceeding 6MB of disk space for Free Web sites. Any Free Web site exceeding 6MB will be suspended until the customer brings the disk space usage under 2MB. C. Using Charter services for illegal purposes or in support of illegal activities. Charter reserves the right to cooperate with legal authorities and /or injured third parties in the investigation of any suspected crime or civil wrong. Activities which are prohibited as potentially illegal include, but are not limited to: 1. Unauthorized copying of copyrighted material including, but not limited to, digitization and distribution of photographs from magazines, books, or other copyrighted sources, and copyrighted software. 2. Exporting software or technical information in violation of U.S. export control laws. 3. Posting or emailing of scams such as 'make- money -fast' schemes or 'pyramid /chain' letters. 4. Threatening bodily harm or property damage to individuals or groups. 5. Making fraudulent offers of products, items or services originating from your account. 6. Attempting to access the accounts of others, or attempting to penetrate security measures of Charter's or other entities' systems ( "hacking "), whether or not the intrusion results in corruption or loss of data. D. Harassing others by 'mail-bombing' or 'news-bombing', sometimes referred to as 'spamming'. 'Mail- bombing' constitutes sending more than ten (10) similar mail messages to the same email address. 'News- bombing' constitutes sending more than 10MB of data to a news group. 1. Sending unsolicited email messages where the recipient objects to the content of the message or to the receipt of the message in general is also prohibited under this Policy. Customer acknowledges that it is expressly prohibited from utilizing Charter's service, equipment or electronic mail address in connection with the sending of the same or substantially similar unsolicited electronic mail message, whether commercial or not, to a large number of recipients. This prohibition extends to the sending of unsolicited mass mailings from another service which in any way implicates the use of Charter's service, equipment or electronic mail address. D ii. A message is unsolicited if it is posted in violation of a USENET or news group charter and /or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's email address accessible to the public shall not constitute a request or invitation to receive messages. iii. Customer specifically agrees that it will not utilize Charter's internet service, equipment or any electronic mail address in connection with the transmission of the same or substantially similar unsolicited message to 50 or more recipients or 10 or more newsgroups in a single day. E. Revealing Customer account password to others or allowing use of Customer account by others (other than users authorized by Customer). At no time can there be simultaneous use of the same username and password combination. F. Forging any message header, in part or whole, of any electronic transmission, originating or passing through Charter services. G. Distributing viruses to, from or through Charter Service. H. Use of software or any device that would allow Customer account to stay logged on while Customer is not actively using Charter services or use of the account for the purpose of operating a server of any type. I. Cross - posting advertisements for products, items, or services to ten (10) or more unrelated USENET newsgroups. J. Posting articles to any USENET or other newsgroup, mailing list or similar forum which are off -topic according to the charter or other owner - published FAQ or description of the group or list. K. Disrupting any newsgroup with frivolous, excessively vulgar, or repetitious postings. L. Posting of binary, or excessively large, unrelated text files to non -binary newsgroups that have specifically requested such material not be posted in the group's FAQ (Frequently Asked Questions). M. Installation of 'auto- responders', 'cancel -bots' or similar automated or manual routines which generate excessive amounts of net traffic, or disrupt net newsgroups or email use by others. N. Engaging in any of the above activities using the service of another provider but channeling such activities through a Charter account or re- mailer, or using a Charter account as a mail drop for responses. Charter has no practical ability to restrict all conduct, communications or content which might violate this Policy prior to its transmission on Charter's systems, nor can Charter E ensure prompt removal of any such communications or content after transmission or posting. Accordingly, Charter does not assume liability to subscribers or others for any failure to enforce the terms of this Policy. Furthermore, nothing contained in this policy shall be construed to limit Charter's actions or remedies in any way with respect to any of the foregoing activities, and Charter reserves the right to take any and all additional actions it may deem appropriate with respect to such activities, including without limitation taking action to recover the costs and expenses of identifying offenders and removing them from the Charter service, and levying cancellation charges to cover Charter's costs in the event of disconnection of dedicated access for the causes outlined above. In addition, Charter reserves at all times all rights and remedies available to it with respect to such activities at law or in equity. This Policy is being included in this Agreement for the Customer's information purposes and constitutes the Policy as it exists at the time of the execution of this Agreement. This Policy is subject to change without notice to or the agreement of the Customer. 10 LW 11 WALLIN,.'KRESS, REISMAN & KRANITZ LAW OFFICES 2800 TWENTY - EIGHTH STREET. SUITE 315 SANTA MONICA, CALIFORNIA 90405 -6205 TELEPHONE (310) 450 -9582 FACSIMILE (310) 450 -0506 MEMORANDUM DATE: June 21, 2000 TO: Frank G. Tripepi, City Manager FROM: Cary S. Reisman, Assistant City Attorney cC� SUBJECT: ORDINANCE NO. 807 AMENDING CABLE TELEVISION PROVISIONS OF MUNICIPAL CODE - CHAPTER 5.28 AGREEMENT GRANTING A NON - EXCLUSIVE FRANCHISE RENEWAL TO CHARTER COMMUNICATIONS ENTERTAINMENT II PURPOSE: These two related items are 1) the amendments to the Rosemead Cable Television Ordinance, Chapter 5 -28 of the Rosemead Municipal Code, on the agenda for second reading /adoption, and 2) the franchise renewal agreement with Charter Communications Entertainment ll. BACKGROUND: The City's franchise agreement with Charter Communications is scheduled to expire on June 27, 2000. The original agreement, to which Charter succeeded, was a nonexclusive fifteen year cable television franchise granted to Falcon Communications. Ownership of the cable company has changed several times over the years. Charter Communications has been the owner and operator of the cable system since October, 1995. At the end of 1998, the City Council approved Paul G. Allen's purchase of Charter. During review and negotiations leading up to approval, City Staff negotiated with Charter regarding renewal of Charter's franchise. A public hearing, attended by Mel Matthews of Charter, was held in December, 1998. The negotiations and hearing resulted in an agreement in principle for the renewal, which the Council approved. The federal Cable Act provides the legal basis and framework for all cable television franchise renewals. The franchising authority must consider the following four factors: ' Whether the cable operator has "substantially complied" with the material terms of the franchise and with applicable law. ' Whether the quality of the operator's service has been "reasonable in light of community needs ". CDUNCIL A GENDA JUN 2 7 ITEM No. Al 4,4 2 WALLIN, KRESS, REISMAN & KRANITZ LAW OFFICES Frank G. Tripepi, City Manger June 21, 2000 Page 2 * Whether the cable operator has the financial, legal and technical ability to provide the services, facilities and equipment set forth in the proposal. * Whether the operator's proposal is reasonable to meet the future needs and interests of the community, taking into account the cost of those needs. ANALYSIS: Under the Cable Act, a city can only deny a franchise renewal if the incumbent company has substantially failed to offer reasonable levels of service, has failed to comply with the terms of the franchise, or lacks the financial, legal or technical ability to provide services reasonable to satisfy community needs. No substantial failures on the part of Charter Communications came to light during,the hearing proceedings, and staff has not been made aware of any such failures since. The franchise renewal agreement will extend Charter's franchise for an additional ten years. It clarifies the method of computation of franchise fees. It continues low income Senior Citizen discounts for basic cable service with a differing percentage based upon the type of service supplied. It provides for recovery of the City's franchise renewal costs from the cable company, and that such costs will not be passed through to subscribers. It provides for educational and government access, equipment grants, including provision of new character generating equipment to post city notices and video equipment, as well as programming support and technology upgrades. It also clarifies customer service requirements and provides for rate regulation if the FCC again permits municipalities to regulate rates. It requires Charter to provide full "open access" to competing Internet providers if it is determined that franchising authorities are permitted to require open access. It contains a "favored nations" clause. And it provides for installation and provision of cable television and cable modems in all designated City and public service buildings without cost to the City or other agencies. Staff has prepared the renewal agreement and corresponding Ordinance updates to reflect the negotiations, and to account for changes in the laws since the original Ordinance was adopted. On the agenda for consideration are 1) Ordinance No. 807; and 2) the Franchise Agreement. RECOMMENDATION: 1. Adopt Ordinance No. 807 2. Approve the Franchise Agreement. V. MATTERS FOR DISCUSSION AND ACTION A. ORDINANCE NO. 80— AMENDING CABLE TELEVISION PROVISIONS OF MUNICIPAL CODE; AND AGREEMENT GRANTING A NON - EXCLUSIVE FRANCHISE RENEWAL TO CHARTER COMMUNICATIONS ENTERTAINMENT lI MOTION BY COUNCILMAN BRUESCH, SECOND BY COUNCILMAN VASQUEZ that the Council adopt Ordinance No. 807. Vote resulted: Yes: Bruesch, Taylor, Clark, Vasquez, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. � 2. CABLE COMMUNICATIONS FRANCHISE AGREEMENT WITH CHARTER COMMUNICATIONS MOTION BY COUNCILMAN BRUESCH, SECOND BY COUNCILMAN VASQUEZ that the Council approve the Franchise Agreement. Vote resulted: Yes: Bruesch, Taylor, Clark, Vasquez, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. B. CONTINUED DISCUSSION— TEMPLE CITY BOULEVLARD TRUCK ROUTE This item was received and filed. VI. STATUS REPORTS - None VH. MATTERS FROM OFFICIALS - None VIII. ORAL COMMUNICATIONS FROM THE AUDIENCE -None IX. ADJOURNMENT There being no further action to be taken at this time, the meeting was adjourned at 8:30 p.m. in memory of Sally Savedra, and the Orange County police officer that was fatally shot. The next regular meeting will be held on Tuesday, July 11, 2000, at 8:00 p.m. Respectfully submitted: APPROVED: City Clerk CCMm6-27-00 Page 45 MAYOR 4 1 Charter COMMUNICATIONS' A WIRED WORLD COMPANY- CITY OF ROSEMEAD 2003 ANNUAL CABLE REPORT Prepared By Sandra Magana Director of Government Relations TABLE OF CONTENTS Introduction 2003 Review Contact Information Customer Service Standards New Services Community Involvement and Activities Channel Line -up 0 5 G 7 INTRODUCTION The 2003 Franchise Review is provided to the City of Rosemead to outline Charter's success in providing service to residents and to provide an overview of Charter's efforts in supporting the city and community. Charter Communications started with cable television more than a decade ago and today we are at the center of an historic evolution in information, entertainment, and communications technology. In the past few years, broadband Internet connections have grown faster in the United States than either the VCR or the cellular telephone did in the peak of their success. Digital cable service is the most flourishing product launched by the cable television industry since pay television channels premiered in the 1970s. From the beginning, Charter has worked to provide high quality service, the latest technology and a wide variety of video programming at a fair price. That commitment has not changed. Today we are working to provide a more uniform approach to service deployment, pricing, customer procedures and technical operations. We have implemented a modern call center that features sophisticated tools and technologies that allow us to provide enhanced employee training, call monitoring and service analysis as well as excellent customer service. Charter continues to be an active member of the community. Providing educational programming to every school through Cable In the Classroom and public access channel space. We bring you community based programming and make contributions to civic and charitable organizations. In addition, our business and advanced network was built and is maintained by local employees who live in the same communities as our customers. We are proud to have a local presence in your community that allows us to truly understand and serve your residents. 2003 REVIEW 2003 Franchise Fees Charter paid the City of Rosemead $170,356.13 in franchise fees. Management Team In 2003 Charter completed a national corporate restructuring which has resulted in new executive leadership and fresh strategies for the company. Charter Communications is confident that these changes will improve operations and the ability to provide outstanding customer service. Charter has established five divisions throughout the country. The Western Division is comprised of systems in California, Idaho, Nevada, Oregon and Washington. Eric Brown, the Senior Vice President of Operations for the Western Division, headquartered in Long Beach, heads the new divisional team. Marsha Berkbigler is the divisional Vice President of Government Relations and Franchising and Craig Watson has joined the company as the divisional Vice President of Communications. The City of Rosemead is part of the Los Angeles Metro Key Market Area (LAKMA), which covers the Burbank, Long Beach, Malibu, and San Gabriel Valley cable systems. The LAKMA is led by Wendy Rasmussen, General Manager and Vice President. Attached is a contact sheet for your convenience. 3 CHARTER COMMUNICATIONS- CONTACT INFO. Local Customer Lobby and Technical Operations Information Alhambra Lobby Temple City Payment Center Big Five Shopping Plaza 6273 Rosemead Blvd., Temple City 734 E. Valley Blvd. Cross street: Longden Ave. Cross street: S. Almansor Mon — Wed 9 am — 6 pm Behind the Big Five Store Thur — Fri 9 am — 7 pm Mon — Fri 7:30 am — 4:00 pm Saturday 9 am — 5 pm Saturday 7:30 am — 4:00 pm Sunday 10 am — 4 pm Closed: Sunday and Holidays Surcharge: $0.50 Customer Service Information Hours: 24 Hours a Day, 7 Days per Week Cable Service Toll Free (866) 499 -8080 Charter Pipeline Service Toll Free (888) 852 -2235 Management Team - Los Angeles Key Market Area (KMA) City Contacts: Sandra Magana, Director of Government Relations Irma Bojorquez, Customer Service Liaison (626) 430 -3410 (626) 430- 3415 L.A. KMA Leadership: Wendy Rasmussen Pattie Eliason Jennifer Nguyen Oliver Calza Jim Sayer L.A. KMA Headquarters: 4781 Irwindale Avenue Irwindale, CA 91706 Vice President /General Manager Director of Marketing Director of Finance Director of Operations Director of Technical Operations (626) 430 -3300 19 CUSTOMER SERVICE STANDARDS Charter has a very simple way of doing business, always put the customer 1st. We believe it's important to provide the best possible service for a reasonable price if we want to be at the forefront of our industry. We believe it is our responsibility to hire and train the best employees, to provide the best service for our customers and to constantly change and modify technology so that we stay on the cutting edge of the telecommunications industry. Charter operates a contact call center in Irwindale. Customers can talk to a live customer service representative 24 hours a day, 7 days, a week. Each employee completes an extensive training education for four weeks in provide exceptional service. Charter offers bilingual service in over seven languages to meet the needs of our diverse service area. The success of this call center is apparent in our customer service statistics. In 2003, our service level was 91.6% gill ll ( �M,r Srn.irp Ctatistics Trunk Bus % 0.00% # Total Calls Queued 3,566,895 # Calls Abandoned 137,184 Calls Abandoned % 5.2% Service Level % 91.6% NEW SERVICES 2003 Customer Statistics Out of 15,131 possible customers in the City of Rosemead, Charter provided service to 4,480 homes as of December 31, 2003. Of these customers, 3,862 subscribe to digital cable. In 2003 Charter launched some exciting services that have enhanced our line of digital features. Below is a list of the services launched and some upcoming projects. rr_ . ca.. --- /......../.o.! J.. 5 lC prn;PCtc SERVICE DISCRIPTION LAUNCH DATE Charter Pipeline — Thank You As a thank you to our Pipeline customers, we increased September 2003 Campaign their existing speeds to 2M/128. Dlore HDTV Channels HDNET is the first all high definition national television December 2003 network featuring a variety of HDTV programming, including five sports, sitcoms, dramas, action series, documentaries, travel programs, music concerts and shows, special events, and news features including the popular HDNet World Report - -all in spectacular HD"n . HDNet Movies delivers a commercial -free schedule of full- length feature films converted from 35mm to high- defi including titles from an extensive library of films. HDNet Movies will feature a mix of theatrical releases, made for-TV movies, independent films and shorts. M COMMUNITY INVOLVEMENT AND ACTIVITIES Community partnership is a priority to Charter Communications. Charter has both local and divisional contact available to assist our elected leaders and city staff members in these communities. We provide support throughout the community in a variety of ways. This support includes time commitments by our staff, and monetary as well as in -kind donations including the full production coverage of the Rosemead 4 of July Parade. Production ol'Local Programming Charter also produces its own local programming. The locally produced programming is meant to serve as an additional benefit and service to our customers and in both a half hour and thirty second advertisement format it provides viewers with an opportunity to learn more about their community and various topics of interest. CHANNEL LINE -UP For your files and convenience, attached is the most current channel line -up. Charter Communications continues to offer the latest in broadband entertainment and services and is demonstrated by the amount of programming included in our line -up. ri SERVICE DESCRIPTION LAUNCH DATE Upgrades to Video On Demand Known as "Subscription VOD" or simply "SVOD" in December 2003 (VOD) the industry, the new features allow users to subscribe to a series of programming under one theme. These include "Cinemax On Demand ", "HBO On Demand ", "Kid's Unlimited ", "MagRack ", "On Demand Previews ", and "Showtime On Demand ". Digital Video Recorder Charter DVR service allows customers to record up to January 2004 fifty hours of programming and manipulate live television. The Charter DVR can record two different channels simultaneously while also viewing a previously recorded program. Customers can also record reoccurring shows so an entire season of their favorite programs can be saved even while they are away from their television sets. Customer can stop, rewind, fast forward, and pause five television. Please refer to the attached product overview for additional details on the features of the Charter DVR. New Billing System Charter will be replacing our multiple billing- systems with April 2004 a new, consolidated billing system. This conversion will be company -wide, and as a result, every customer will receive a new account number, and a new due date for their bills. The expected outcome will increase efficiency for our internal processes, as well as the customer. In addition we will increase billing cycles from 4 to 15 dramatically minimizing call traffic and provide online bill payment options for customers. COMMUNITY INVOLVEMENT AND ACTIVITIES Community partnership is a priority to Charter Communications. Charter has both local and divisional contact available to assist our elected leaders and city staff members in these communities. We provide support throughout the community in a variety of ways. This support includes time commitments by our staff, and monetary as well as in -kind donations including the full production coverage of the Rosemead 4 of July Parade. Production ol'Local Programming Charter also produces its own local programming. The locally produced programming is meant to serve as an additional benefit and service to our customers and in both a half hour and thirty second advertisement format it provides viewers with an opportunity to learn more about their community and various topics of interest. CHANNEL LINE -UP For your files and convenience, attached is the most current channel line -up. Charter Communications continues to offer the latest in broadband entertainment and services and is demonstrated by the amount of programming included in our line -up. ri SAN GABRIEL VALLEY CHANNEL LINE -UP CH Service Level Programming Name 1 Analog Basic TV Guide 1 Advanced Digital S Charter 1 2 Analog Basic KCBS -TV - CBS 3 Analog Basic Local Access 4 Analog Basic KNBC - NBC 5 Analog Basic KTLA - WBN 6 lExpanded Basic Nickelodeon -West 7 jAnalog Basic KABC-TV - ABC 8 Expanded Basic USA 9 Analog Basic KCAL -TV - IND 10 Expanded Basic CNN 11 Analog Basic KTTV - FOX 12 Expanded Basic MTV 13 Analog Basic KCOP - UPN 14 Expanded Basic Fox Sports Net West 15 Expanded Basic I Fox Sports Net West2 16 Expanded Basic ESPN 17 Expanded Basic ESPN2 18 Analog Basic KSCI - IND 19 Analog Basic KMEX -TV - UNV 20 Analog Basic TBS 21 Analog Basic WGN 22 Analog Basic KWHY- TV - TMO 23 1 Expanded Basic Court TV 24 Expanded Basic FOX News Channel 25 Expanded Basic The Disney Channel 26 Expanded Basic TV Land 27 Analog Basic • KFTR - TEL 28 Analog Basic KCET - PBS 29 Expanded Basic The Discovery Channel 30 Analog Basic KPXN - PAX 31 1 Expanded Basic A&E 32 Expanded Basic CNBC 33 Expanded Basic VH -1 34 Analog Basic OVC 35 Expanded Basic AMC 36 Expanded Basic TNT 37 Expanded Basic Galavision 38 Expanded Basic The Learning Channel 39 lExpanded Basic Travel Channel 40 Expanded Basic Sci -Fi 41 Expanded Basic Speed Channel 42 Expanded Basic Comedy Central 43 Expanded Basic techtv 44 Analog Basic KXLA - N/A 45 Expanded Basic El 46 Expanded Basic Cartoon Network 47 Expanded Basic Lifetime 48 Expanded Basic ABC Family 49 Expanded Basic Spike TV (TNN) 50 Analog Basic KOCE -TV - PBS 51 Analog Basic Home Shopping Network 52 Analog Basic KVEA - TMO 53 Analog Basic CSPAN 54 Analog Basic KAZA 55 jAnalog Basic Government Access 56 Analog Basic Public Access 57 Analog Basic KJLA - IND 58 Expanded Basic BET 59 Expanded Basic Fox Sports en Espanol 60 Expanded Basic History 61 Analog Basic KDOC -TV - IND 62 Analog Basic KTBN -TV - TBN 63 jAnalog Basic KRCA - IND 64 Analog Basic KLRN - PBS 65 Analog Basic KLCS - PBS 66 Analog Basic CSPAN2 66 Analog Basic Product Information 67 Expanded Basic CNN Headline News 68 Expanded Basic MSNBC 69 Expanded Basic Food Network 70 Expanded Basic fx 71 lExpanded Basic JCMT 72 lExpanded Basic JESPN Classic J ALLMERICA FINANCIAL HANOVER,INSURANCE® HANOVER INSURANCE COMPANY 7130 Glen Forest Drive, Suite 400 Richmond, VA 23226 NOTICE OF CANCELLATION City of Rosemead 8838 East Valley Blvd. BLR- 1698665 Rosemead, CA 91770 WHEREAS, on or about the 16th day of AgLL 20 The Hanover Insurance Company as Surety, executed its bond in the penalty of Seven Thousand Three Hundred Fifty Nine 00 /100 Dollars ($7,359.00) on behalf of ACC Telecommunications, LLC of Main at Water Street, Coudersport, PA 16915 as Principal, in favor of City of Rosemead as Obligee, (Nature of Risk) CATV Performance Bond WHEREAS, said bond, by its terms, provides that the said Surety shall have the right to terminate its obligations thereunder. serving notice of its election so to do upon the said Obligee, and WHEREAS, said Surety desires to take advantage of the terms of said bond and elects to terminate its liability in accordance with the provisions thereof.' . NOW, THEREFORE, The Hanover Insurance Company shall at the expiration of LkjLtE (30)days after receipt of this notice be released and forever discharged from any and all liability for all known and unknown claims, which the Obligee may assert against the Surety, under the above- referenced bond. Signed and dated this 17th of Mav, 2004. HANOVER INSURANCE COMPANY By: I/ M4Nn (n )- i. u pm e Vim.' Donna M. Lipscombe cc: Adelphia Communications Franey Muha Alliant -Insurance Services I Lb� CHARTER COMMUNICATION'S August 18, 1998 The Honorable Robert W. Bruesch Mayor City of Rosemead 8838 E. Valley Blvd Rosemead, CA 91770 Dear Mayor Bruesch: Over the past five years, Charter Communications, Inc. and its affiliated entities ( "Charter) has grown to be the 10' largest multiple system operator ( "MSO ") in the United States. Charter accomplished this phenomenal growth with the aide of some trusted and valued partners. Charter provided the expertise and cable management acumen while our partners, primarily Kelso & Company and Charterhouse Group International, Inc., provided access to equity and capital. With the wave of consolidations in the industry, Charter's senior management has been looking at ways to consolidate the ownership and control of all of the cable properties managed by Charter under a single umbrella company. We have recently explored the idea of an IPO (issuing public stock) to provide the liquidity needed to further grow and expand and may still pursue this option in the future. As we explored all of our alternatives, we were presented with an option that provided for consolidation of the entities, access to capital, and a vision which is unsurpassed in the industry. We are extremely pleased to have been chosen by Paul G. Allen, co- founder of Microsoft, to manage his cable properties and to help develop and deliver his vision of the "Wired World" In short, Allen envisions a connected future marked by the merger of high bandwidth data channels, the power of the personal computer and the availability of compelling content. You will be pleased to know that there will be no increase in debt -to -equity ratios of the entities as a result of this transaction. Mr. Allen will assume the current debt and in many instances liquidate some debt instruments. Notwithstanding the consumer benefit of this transaction, the effect of this transaction on you and your subscribers should be transparent for the most part. The current corporate staff and system management will remain under my leadership. And of course, Charter will retain its commitment to superior customer service. In reviewing this application, you are called upon to determine that the applicant meets the legal, technical and financial qualifications to own and operate a CAN system. In this instance, legal and technical qualifications are a non -issue since there is no change in either corporate or system management. We think you will agree that the financial condition of the company can only be strengthened by this consolidation and infusion of equity. The men and women of Charter are eager to focus our energy toward deploying new technology and hope for a speedy transfer process. Paul Allen's vision helped bring forth the computer revolution. Just imagine the possibilities when compelling content, personal computing and high bandwidth data channels combine. The staff at Charter looks forward to bringing you the "Wired World." Sincerely, V - C Jerald L. Kenf Presider.; and CEO ._ ra, Al occ.nccc . cam. (1,1 A) ana.nr7s • intemet http: \ \www.chartercom.com (Space below for use of County Clerk only( .SAN GABRIEL VALLEY TRIBUNE affiliated with SGV Newspaper Group 1210 N. Azusa Canyon Road West Covina, CA 91790 a PROOF OF PUBLICATION (2015.5 C.C.P.) STATE OF CALIFORNIA County of Los Angeles I am a citizen of the United States, and a resident of the county aforesaid; I am over the age of eighteen years, and not a party to or interested in the above - entited matter. I am the principal clerk of the printer of SAN GABRIEL VALLEY TRIBUNE, a newspaper of general circulation which has been adjudicated as a newspaper of general circulation by the Superior Court of the County of Los Angeles, State of California, on the date of September 10, 1957, Case Number 684891. The notice, of which the annexed is a true printed copy, has been published in each 7egular and entired issue of said newspaper and not in any supplement thereof on the following dates, to wit: 12/5/98 I declare under penalty of perjury that the foregoing is true and correct. Executed at West Covina, LA Co. California Is 9 day of DECEMBER, 19 98 signature 1' Proof of Publication of CITY OF ROSEMEAD NOTICE OF PUBLIC HEARING J:_ L _ o lr wi from the g p p blic will be rece(ved on the following questions: I Whetherthec able operator has "substantially complied" with the material terms of the , and with applicable law ? - - , 2) ,Whether the quality of the operator's service as been "reasonable in light. of.community -- 3) Whether the cable operator has the financial, legal'and technical ability to provide the services, facilities and equipment set forth in, the proposal? 4) Whether the operator's proposal is reasonable to meet the future needs and interests of the community, taking into account the cost of those needs? _ 5) Whether proposed transferee Paul G. Allen locks the .legal, technical or financial qualifications to operate the franchise. - Interested persons are invited to attend the participate in the public hearing. Questions should be directed do.Assistant City. Manager Donald Wagner at (626) 288- 6671.;��. Nancy Y. Volderrdma City of Rosemead 8838. E. Valley Boulevard - Rosemead, CA 91770 Publish December 5, 1998 San Gabriel Valley Tribune 8147/17288 SENT BY WALU N KRESS REISMAN ;12- 9 -98 ; 4 31PM ; (310) 450 -0506 818 307 92184 2/ 6 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD GRANTING THE APPLICATION OF PAUL G. ALLEN AND CHARTER COMMUNICATIONS ENTERTAINMENT 11, LLP AND RELATED COMPANIES TO ASSIGN AND TRANSFER CONTROL OF THF, NON- EXCLUSIVE CABLE TELEVISION FRANCHISE IN THE CITY OF ROSEMEAD TO PAUL G. ALLEN WHEREAS, the City of San Gabriel ( "CITY") granted to the predecessors of Chaner Communications Entertainment II, L.P., a franchise as set forth in the franchise agreement dated June 27, 1985, to own and operate a cable television system in the City of Rosemead; and WHEREAS, on July 29, 1998 Charter entered into a Purchase Agreement (the "Agreement ") with Paul G. Allen ( "Buyer "); and WHEREAS, the Agreement provides for the sale of stock, transfer of control and the restructuring of Charter; and WHEREAS, Charter and Buyer ( "Applicants ") filed an FCC Form 394 Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise with CITY on or about August 18, 1998; and WHEREAS, CITY has duly conducted a thorough review and investigation into the legal, technical and financial qualifications of the Buyer to own and operate the cable television system in light of the above - referenced FCC Form 394; and WHEREAS, all written comments and staff reports have been received and made a part of the record; and WHEREAS, following review and investigation, the CITY has concluded that the Applicants have established that, with the assurances provided by Applicants, the Buyer meets the legal, technical and financial criteria to operate the cable television system and the Applicants have satisfied all criteria set forth in and /or under all applicable or required City of Rosemead and federal documents, laws, rules and regulations, including FCC Form 394, for this transfer. NOW, THEREFORE, BE IT RESOLVED, that in consideration of the forcgoing and the premises set forth herein, the CITY agrees to the following: SENT BY: WALLIN KRESS REISMAN ;12- 9 -98 ; 4 :32PM ; 13101 450 -0506 818 307 9218:# 3/ 6 1. CITY consents to the restructuring of Charter and the transfer of control /assignment of franchise of the cable television system serving CITY to the Buyer (or a specifically identified and approved designee entity 61'Buyer), effective upon the closing of the transactions contemplated by the Agreement; 2. CITY further consents to the change of name or corporate designation attendant with the restructuring of Charter, if any, as set forth within FCC Form 394: 3 CITY confirms that (a) the Franchise is valid and o lstanding and in full force and effect; (b) there have been no amendments or modifications to the Franchise, except as set forth herein; (c) Charter is materially in compliance with the provisions of the Franchise; and (d) there are no defaults under the Franchise, or events which, with giving of notice or passage of time or both, could constitute events of default thereunder. SECTION, This resolution shall take effect immediately. ;SECTION 3 . The City Clerk shall certify to the adoption of this Resolution. PASSED, APPROVED and ADOPTED by the Rosemead City Council on this day of December, 1998. AT'T'EST: Nancy Valderrama, City Clerk City of Rosemead e Robert Bruesch Mayor City of Rosemead 2 SENT BY: WALLIN KRESS REISMAN ;12- 9 -98 ; 4 :32PM ; (3i0) 450 - 0506 818 307 9218:# 4/ 6 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD DENYING WITHOUT PREJUDICE THE APPLICATION OF PAUL G. ALLEN AND CHARTER COMMUNICATIONS ENTERTAINMENT II, LLP AND RELATED COMPANIES TO ASSIGN AND TRANSFER CONTROL OF THE NON- EXCLUSIVE CABLE TELEVISION FRANCHISE IN THE CITY OF ROSEMEAD TO PAUL G. ALLEN WHEREAS, the City of Rosemead ( "CITY ") granted to the predecessors of Charter Communications Entertainment II, L.P. a franchise as set forth in the franchise agreement dated June 27, 1985, to own and operate a cable television system in the City of Rosemead; and WHEREAS, on July 29, 1998 Charter entered into a Purchase Agreement (the "Agreement ") with Paul G. Allen ( "Buyer "): and WHEREAS, the Agreement provides for the sale of stock, transfer of control and the restructuring of Charter, and WHEREAS, Charter and Buyer ( "Applicants ") filed an FCC Form 394 Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise with CITY on or about August 18, 1998; and WHEREAS, the CITY has duly conducted a thorough review and investigation into the legal, technical and financial qualifications of the Buyer to own and operate the cable television system in light of the above - referenced FCC Form 394; and WHEREAS, the CITY has reviewed the FCC Form 394, all supplemental information submitted in relation thereto, and the various Staff reports and related documents; and WHEREAS, the CITY has determined that it the Buyer does not have the requisite technical qualifications to own and operate the cable television system; and WHEREAS, the CITY has determined that it would not be in the public interest to approve the Transfer at this point in time and has determined that it would be in the public interest to disapprove the Transfer without prejudice subject to future and further consideration. NOW, THEREFORE, BE 11' RESOLVED, that: S UC T I O N 1. The recitals above are hereby declared to be true, accurate, and correct. SENT BY: WALLIN KRESS REISMAN ;12- 9 -98 ; 4 :32PM (310) 450 - 0506-^ 818 307 9218;# 5/ 6 2. The transfer of control of the Franchise and Franchisee from Charter to the Buyer, as described in the FCC Farm, is hereby disapproved for the following reasons: (a) The Applicants have failed to timely provide all necessary additional information requested by the City relating to the Transfer's potential impact upon existing and future rates and the legal, technical and financial qualifications of the Buyer to own and operate the cable television system serving the City (the "System "). (b) The Buyer has failed to demonstrate that it is a technically qualified applicant for the following reasons: (1) The burden of proof is upon the Buyer to demonstrate its legal, technical, and financial qualifications to assume control of the Franchise and the Franchisee. (2) The Buyer possesses no track record in the operation of cable television systems or the provision of cable television services. The Applicants have failed to present any affirmative evidence demonstrating the Buyer's technical and experience qualifications to own and operate cable systems. Although the Buyer may possess significant experience and expertise in the development of computer software and related products, as well as the operation of professional sports teams, no evidence was presented by the Applicants demonstrating the Buyer's technical and experience qualifications to own and operate cable television systems on a limited or large scale basis. (3) No evidence has been presented by the Applicants as to the Buyer's contractual commitment, long -tern, short-term, or otherwise, to maintain existing Charter management and /or operating policies and procedures. (4) Given the risks associated with the Transfer, as identified above, it will not be in the public interest for the City to unconditionally approve the Transfer at this time. The disapproval of the Transfer contained herein is without prejudice and may be reconsidered by the City Council when and if the Applicants are able to present evidence demonstrating the Buyer's technical suitability. SENT BY WALLIN KRESS REISMAN ;12- 9 -98 : 4 33PM (310) 450 -0506 818 307 9218 ;# 6/ 6 3. A transfer of the Franchise, transfer of actual or managerial control of the Franchise, and /or transfer of control of the Franchisee, shall be deemed a material breach of the Franchise. SECTION 2 . This resolution shall take effect immediately. SECTION 3 . The City Clerk shall certify to the adoption of this Resolution. PASSED, APPROVED and ADOPTED by the Rosemead City Council on this day of December, 1998. ATTEST- 4 Nancy Valderrama City Clerk City of Rosemead 3 Robert Bruesch Mayor City of Rosemead t :l T -- MINUTES OF THE ADJOURNED REGULAR MEETING ROSEMEAD CITY COUNCIL. DECEMBER 15, 1998 The regular meeting of the Rosemead City Council was called to order by Mayor Bruesch at 7:00 p.m. in the Council Chambers of the City Hall, 8838 E. Valley Boulevard, Rosemead, California. The Pledge to the Flag was led by Councilmember Clark The Invocation was delivered by Councilmember Taylor ROLL CALL OF OFFICERS: Present: Councilmembers Clark, Imperial, Taylor, Mayor Pro Tern Vasquez, and Mayor Bruesch Absent: None PRESENTATIONS: None 1. ORAL COMMUNICATIONS FROM THE AUDIENCE - None H. PUBLIC HEARING An explanation of the procedures for the conduct of the public hearing was presented by the City Attorney.. The City Clerk then administered the oath to all those persons wishing to address the Council on any public hearing item. Frank Tripepi, City Manager, presented the staff report. A/ A PUBLIC HEARING FOR THE RENEWAL OF FRANCHISE AGREEMENT AND ACQUISITION OF CHARTER CABLE TELEVISION BY PAUL ALLEN 11. RESOLUTION NO. 98 -54 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD GRANTING THE APPLICATION OF PAUL G. ALLEN AND CHARTER COMMUNICATIONS ENTERTAINMENT H, LLP AND RELATED COMPANIES TO ASSIGN AND TRANSFER CONTROL OF THE NON - EXCLUSIVE CABLE TELEVISION FRANCHISE IN THE CITY OF ROSEMEAD TO PAUL G. ALLEN Lou A2. RESOLUTION NO. 98 -54 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD DENYING WITHOUT PREJUDICE THE APPLICATION OF PAUL G. ALLEN AND CHARTER COMMUNICATIONS ENTERTAINMENT H, LLP AND RELATED COMPANIES TO ASSIGN AND TRANSFER CONTROL OF THE NON- EXCLUSIVE CABLE TELEVISION FRANCHISE IN THE CITY OF ROSEMEAD TO PAUL G. ALLEN The Mayor opened the Public Hearing to those in the audience wishing to speak on this item. There being no one wishing to speak, the Mayor closed the public hearing. CC:12 -18 -98 Page 41 d MOTION BY COUNCILMAN TAYLOR, SECOND BY MAYOR PRO TEM VASQUEZ that the Council approve the transfer of control to Paul G. Allen, and adopt Resolution No. 98 -54 conditionally approving the transfer. Before vote could result, more discussion ensued. Councilman Imperial asked what the current cable franchise agreement will cover. Mr. Imperial stated that with the past companies, he had requested a 20% discount for seniors and handicapped people, and for the companies to maintain an office in Rosemead. Mel Matthews, Director of Government and Community Relations for Charter Cable TV, explained that a discount is offered to seniors and disabled persons as per the terms of the current franchise. Mr. Matthews stated that there is a full service office in Alhambra and he has discussed with staff a possible mail location or check chasing site in Rosemead to provide an additional payment place for residents. Councilmember Clark suggested exploring the possibility of paying cable tv bills at Beach's Market as they already provide a utility bill payment service there. Mayor Bruesch asked if Charter was going to provide a character generator and an requested an explanation of the "most favored nations" clause? Donald Wagner, Assistant City Manager, responded that the City does not have a character generator yet. Mr. Matthews stated that the "most favored nations" clause is an assurance that Rosemead will receive a level of service that would be comparable to their other service areas. Mayor Bruesch requested a yearly list of the four events per year that Cable TV will cover. Cary Reisman, City Attorney, asked Mr. Matthews how soon the character generation equipment and operation could be in place? Mr. Matthews responded that it would probably take a few months to work out technically, and, once in place, City staff would be responsible for programing and keeping it up to date. Mr. Reisman requested that the following provisions be included in the franchise renewal that guarantees that the character generation equipment could be operative within a six month timeframe; and to include cable, cable modems and internet access for every school and public building. Mr. Reisman clarified that the 10% low income discount mentioned in Mr. Matthew's letter refers to senior low income. At this point, the Mayor called for the question on Resolution 98 -54. Yes: Vasquez, Taylor, Bruesch, Clark, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. CQ12 -18 -98 Page e2 MOTION BY COUNCILMAN TAYLOR, SECOND BY COUNCILMEMBER CLARK that the Council approve the principle negotiating points for Cable television franchise agreement, as set forth in the letter dated December 1, 1998 from Melvin Matthews of Charter to Assistant City Manager Donald J. Wagner (as modified with regard to point 2), together with any additional points resulting from the public hearing process and amendments as made by the City Attorney, and instruct staff to prepare a Franchise Agreement and Ordinance Amendment for consideration by the Council at the January 26, 1999 meeting. Vote resulted: Yes: Vasquez, Taylor, Bruesch, Clark, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. III. LEGISLATIVE -None IV. CONSENT CALENDAR /CC -A AUTHORIZATION TO ATTEND LEAGUE OF CALIFORNIA CITIES MAYORS AND COUNCILMEMBER INSTITUTE, JANUARY 6-8,1999, SACRAMENTO. MOTION BY COUNCILMEMBER CLARK, SECOND BY MAYOR PRO TEM VASQUEZ that the Council authorize the attendance of any Councilmember, City Manager and staff designees. Vote resulted. Yes: Vasquez, Taylor, Bruesch, Clark, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. V. MATTERS FOR DISCUSSION AND ACTION - None VI. STATUS REPORTS - None VII.. MATTERS FROM OFFICIALS VIII. ORAL COMMUNICATIONS FROM THE AUDIENCE Nick Conway, San Gabriel Valley Council of Governments, addressed the Council on the issue of the expansion of the Foothill Transit Zone. Mr. Conway stated that Rosemead is one of nine cities currently outside that zone, and that COG will be submitting an application soon to MTA to begin the expansion process into the Foothill Transit Zone, hopefully resulting in starting the implementation of having a unified Valley served by the Foothill Transit Zone within the next year. Mr. Conway passed out a pamphlet outlining their study, on the use public transportation funds and unmet transit needs in the San Gabriel Valley. Foothill Transit has provided the best public transportation system in the Valley at a substantially reduced cost than MTA. Foothill Transit has been awarded the Gold Medal Award twice in the past ten years bestowed by the American Public Transportation for having the finest public transportation system in the United States. Mr. Conway reported that a sizeable increase in the population is anticipated and that there are a number of unmet transportation needs in the Valley; such as the need for 130 more buses on the road now, plus an additional 88 buses by the year 2020 or an increase of 67 %. Mr. Conway stated that the MTA is probably at its most vulnerable period since its existence and has CC 12-18-98 Page 43 TO: HONORABLE MAYOR AND MEMBERS ROSEMEAD CITY COUNCIL FROM: FRANK G. TRIPEPI, CITY MANAGER DATE: DECEMBER 10, 1998 SUBJECT: PUBLIC HEARING FOR THE RENEWAL OF FRANCHISE AGREEMENT AND ACQUISITION OF CHARTER CABLE TELEVISION BY PAUL ALLEN The purpose of this item is to hold a public hearing to consider input from the public on the renewal of the City of Rosemead's cable television franchise agreement with Charter Communications and regarding Charter's pending acquisition by Paul G. Allen. These two issues are related because some of the same, considerations must be reviewed in connection with the sale of a cable television franchise as are reviewed in franchise renewal. Public input is not required regarding the transfer of the franchise; nevertheless, public input may be considered by the Council in determining whether the applicants have satisfied the transfer criteria. BACKGROUND In 1985, the City of Rosemead granted a nonexclusive fifteen year cable television franchise to Falcon Communications. The franchise granted authority to the cable operator to use public streets and other public rights of way to engage in the business of operating a cable television system. Ownership of the cable company has changed several times over the years.. Charter Communications has been the owner and operator of the cable system since October, 1995. In August, 1998, Charter notified the City that Paul G. Allen, co- founder of Microsoft, had made an offer to purchase Charter Communications. Charter therefore filed the required papers, and requested the City's approval of the sale. Approval or rejection must occur by December 22, 1998, or the transfer is deemed approved. COUNCIL AGENDA DEC 151998 ITEM No. LI - CHARTER ® December 7, 1998 Mr. Don Wagner Assistant City Manager City of Rosemead VIA OVERNIGHT MAIL 8838 E. Valley Blvd. Rosemead, CA 91770 Dear Mr. Wagner: As we near the end of the 120 day approval process relative to Paul Allen's acquisition of Charter Communications, Inc. (Charter), it has come to my attention that some communities in Northern and Southern California have raised an issue regarding the potential impact this transaction may have on subscriber rates. It seems that many consultants have sought to calculate the amount needed to "service" the purchase price as if the purchase price were comprised primarily of debt. Fortunately for Charter, the communities we service and the subscribers we serve, Paul Allen will acquire a strong equity position in Charter. The equity that Mr. Allen will invest in Charter will neither be serviced as debt or carried as debt. Equity, as you know, has no guaranteed rate of return or "debt' service requirement. What this means for you and your constituents is that there is no new pressure on rates. You can rest assured, that no portion of the purchase price will be used as a basis to increase rates. As you know, Charter manages and /or owns cable TV systems in 19 different states serving 1,300,000 subscribers. We are proud of our growth and our commitment to customer service. We were recently ranked by J.D. Powers & Associates (an independent research firm) as Number 3 in customer service for providers of CATV service. We are proud of this accomplishment but not satisfied. As we continue to serve your community, we strive for the Number I spot. We look forward to achieving that goal as we provide new and advanced services to your community. 12444 Powerscourt Drive • Suite 100 • St. Louis, Missouri 63131 • (314) 965 -0555 • Fax (314) 965 -6640 • Internet http: / /www.charteFcom.com Mr. Don Wagner December 7, 1998 Page 2 We sincerely hope that you will place our request for transfer on the next available City Council agenda so that this transaction can be concluded on a timely basis. Sincerely, Jerry Kent President & Chief Operating Officer JLK/tmt cc: Mel Matthews Cary Reisman, Esq. j : al len /3 94transfer /rosemeaQ ; U CHARTER December 1, 1998 Donald J. Wagner Assistant City Manager City of Rosemead 8838 E. Valley Blvd. Rosemead, CA 91770 Dear Don: I am writing to confirm our mutual understanding on several points of agreement with respect to the pending transfer and franchise renewal. 1. Charter will collect from customers and remit to the city the "fee on the fee" for the period between October 1, 1995 and March 31, 1998. This additional franchise fee will be billed to customers at the same time as the next rate adjustment, tentatively scheduled for March 1999 and will be billed over a mutually agreeable time period. 2. Charter will reimburse your expenses for the transfer /renewal process in an amount not to exceed $5,000 within 60 days of submitted of invoice and documentation. 3. Charter will continue to make improvements in customer service and provide a report to the city to address any open issues. 4. Upon completion of the system upgrade, Charter will add CCIN or other mutually agreeable programming on the educational access channel 5. Charter will provide information on the current management agreement to provide reasonable assurance that Charter management will stay in place after the franchise transfer. 6. Charter will continue to make its studio available for community access and will cover up to four city events per year. 7. Charter will agree to a "most favored nations" clause in the new agreement. 8. Charter -will provide a character generator and VCR for a governmental informational channel. 9. Charter will provide up to $30,000 every five years upon request as an equipment grant based on a plan for the usage of the funds to produce local programming. 2215 West Mission Road • PO Box 1451 • Alhambra, California 91802 -1451 10. Charter will provide 10% low income discount on limited and expanded basic service based on the same criterion for similar discounts on trash pickup service in the City. As an alternative, based on further discussion Charter is willing to consider a continuation o�the current 25% discount to customers who only have limited basic service. f `' 11. Although Charter believes that its current full- service location in Alhambra is convenient to Rosemead residents, Charter will explore the cost of providing a payment -only location in Rosemead. Please let me know if there are any other outstanding issues. S�ince�re �C_ '� Melvin L. Matthews Director of Government and Community Relations cc: Cary S. Reisman MAYOR: \ ROBERT W. RRUESCH MAYOR PRO TEM: JOE VASOLEZ COIINCILMEMBERS: MARGARET CLARK JAY IMPERIAL GARYA. TAYLOP .. FROM: DATE: M. C Pi n e mead 8838 E. VALLEY BOULEVARD • P.O. BOX 399 ROSEMEAD. CALIFORNIA 91770 TELEPHONE (626) 288 -6671 FAX (626) 307 -9218 COUNCIL MEMORANDUM CITY MANAGES = DECEMBER 14, 1998 CHARTER CATV AGENDA ITEM .Attached is a memorandum from Cary Reisman and a letter from Charter Communications regarding tomorrow evening's Adjourned Council It provides assurance that the Charier management team will remain in place after the transfer of control to Paul Allen. If you have any questions, please let me know. 0 SENT BY WALLIN KRESS REISMAN .12 -14 -98 ; 3'461"11 1310) 450 -0506 818 307 9218:✓* 2/ 4 WALLIN, KRESS, REISMAN & KRANITZ LAW OFFICES !�C�O TWCNTV- i14MiM d'IFLr_r� uy,iC �1� SANTA MONICA, CALIFORNIA 90906 -6205 It.ICVr,pwC (JIOI ♦00 -9582 rn,.':I MILC 1]101 150 050 0 MEMORANDUM DATE: TO: FROM: SUBJECT: December 14, 1998 Donald Wagner, Assistant City Manager Cary S. Reisman, Assistant City Attorney Charter Communications Assurances As you know, Charter has resisted providing us with any written documentation to the effect that the Charter management team will remain in place after the transfer of control of Charter to Paul Allen is completed. I have finally succeeded in securing some assurances to that effect. Charter's Vice President and Senior Counsel, M. Celeste Vossmeyer, has agreed, on behalf of the applicants, that Charter will agree to pay the City of Rosemead liquidated damages in the event that either Jerald L. Kent (President and Chief Operating Officer of Charter Communications) leaves the employ of the company, or that more than 20% of Charter's senior management team, as listed in an exhibit to her letter, leaves the employment of Charter, within three years after Completion of the transfer. This commitment is currently in the form of a letter, a copy of which is attached hereto and would be attached to the resolution approving the transfer. This letter assurance, which will be incorporated into the Franchise Renewal agreement, together with the assurance of no impact on rates as a result of the transfer (see Jerald Kent letter of December 7, 1998 which is contained in the agenda packet, may be sufficient to satisfy Council concerns regarding the transfer. CSR:da Enclosure SENT BY WALLIN KRESS REISMAN :12 -14 -98 3:46PM : (310) 450 - 0506 • •- -- .. .. n„ „�...��n,cn w.nu,n un nuni 014 Ytl0'6'b4U OCHARTER COMMUNICATIONS° December 12,199B VIA FACSIMILE AND L1.S. MAIL Mr. Cary Reisman Wallin, Kress, Reisman & Kravitz 2600 28' Street, Suite 315 Santa Monica. CA 90405 -8205 RE: The City of Rosemead Dear Mr. Reisman: 818 30.7 S218:r 3/ 4 T-392 P.02/69. F -066 This letter is to confirm the assurances I made to you by telephone yesterday regarding Mr. Paul Allen's commitment to maintain the Charter management team. Charter will agree to pay the City of Rosemead the sum of Two hundred Thousand Dollars ($200,000) In liquidated damages in the event (i) Mr. Jerald Kent leaves the employment of Charter Communications, Inc. before the third anniversary of the franchise transfer; or (ii) more than twenty percent (20 %) of Charters senior management team, as listed in attachment Exhibit A, leave the employment of Charter Communications, Inc., or its affiliates before the third anniversary of the franchise transfer. The employment agreement between Mr. Kent and Mr. Allen is confidential and cannot be produced. We would assume that this very open-ended commitment is more beneficial to the City than one that is conditioned on provision[; of an employment agreement. Please contact me immediately regarding how you would like to memorialize this agreement. Sincerely, ° Qu M. Celeste Vossmeyar Vice President and Senior Counsel MCV smf Attachment 12444 Powetxo„tt Dnve • Suite 158 • St. LOUIS, Mmoun 63131 • (31;) 965 -0555 • Pu (314) 965.66 0 • interret h[tp / /wvw.chanercom.mm SENT BY: WALLIN KRESS REISMAN' :12 -14 -98 : 3 47PM (310) 450 -0506- 818 307 9218:: 4/ 4 uLL - IL - t1 It:000 Rf Um LRARILR WWURII lI"" 4i4 e07 - VD4U - eYL Y UM/ f - w6w EXHIBIT A CHARTER COMMUNICATIONS, INC. Jerald L. Kent President and Cut Executive Officer David 0. Barford Senior Vice President - Operations - Urban Regions Mary Pat BIaKe Senior Vice President - Marketing Eric A. Freearrteier Senior Vice President - Administration Thomas R Jokerst Senior Vice President - Engineering Kent D. KalKwarf Senior Vice President and Chief Financial Officer Ralph G. Kelly Senior Vice President - Treasurer Gene Knoplauch Sanior Vice President - Operations - Northeast Region David McCall Senior Vice President - Operations - Southeast Region Thomas Schaeffer Senior Vice President - Operations - Western Region Cunis S. Shaw Senior Vice President, General Counsel and Secretary M. James Bogen Vita President - Government Relations James Bray Vice Pmaedent - Operations - Southern Region Patricia J. Busby Vice President - Information Systems Eloise A, Engman Vice President - Finance & Acquisitions, Assistant Treasurer and Assistant Secretary Trude McCollum Foushee Vice President and Senior Counsel and Assistant Secretary Don Johnson Vica President - Human Resources Marcy Lifton Vice President and Senior Counsel and Assistant Secretary Patricia L. McCaskill Vice President - Programming and Pay -Per -View Larry F. Schutz Vice President - Network Engineering Stephen E. Silva Vice President - Corporate Development M. Celeste Vossmeyer Vice President and Senior Counsel and Assistant Secretary ;):ITT; u --- -• �7 _ -... MINUTES OF THE ADJOURNED REGULAR MEETING ROSEMEAD CITY COUNCIL DECEMBER 15, 1998 The regular meeting of the Rosemead City Council was called to order by Mayor Bruesch at 7:00 p.m. in the Council Chambers of the City Hall, 8838 E. Valley Boulevard, Rosemead, California. The Pledge to the Flag was led by Councilmember Clark The Invocation was delivered by Councilmember Taylor ROLL CALL OF OFFICERS: Present: Councilmembers Clark, Imperial, Taylor, Mayor Pro Tern Vasquez, and Mayor Bruesch Absent: None PRESENTATIONS: None 1. ORAL COMMUNICATIONS FROM THE AUDIENCE - None H. PUBLIC HEARING An explanation of the procedures for the conduct of the public hearing was presented by the City Attorney. The City Clerk then administered the oath to all those persons wishing to address the Council on any public hearing item. Frank Tripepi, City Manager, presented the staff report. A.� A PUBLIC HEARING FOR THE RENEWAL OF FRANCHISE AGREEMENT AND ACQUISITION OF CHARTER CABLE TELEVISION BY PAUL ALLEN Al. RESOLUTION NO. 98 -54 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD GRANTING THE APPLICATION OF PAUL G. ALLEN AND CHARTER COMMUNICATIONS ENTERTAINMENT H, LLP AND RELATED COMPANIES TO ASSIGN AND TRANSFER CONTROL OF THE NON - EXCLUSIVE CABLE TELEVISION FRANCHISE IN THE CITY OF ROSEMEAD TO PAUL G. ALLEN N' A2. RESOLUTION NO. 98 -54 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD DENYING WITHOUT PREJUDICE THE APPLICATION OF PAUL G. ALLEN AND CHARTER COMMUNICATIONS ENTERTAINMENT H, LLP AND RELATED COMPANIES TO ASSIGN AND TRANSFER CONTROL OF TFIE.NON- EXCLUSIVE CABLE TELEVISION FRANCHISE IN THE CITY OF ROSEMEAD TO PAUL G. ALLEN The Mayor opened the Public Hearing to those in the audience wishing to speak on this item. There being no one wishing to speak, the Mayor closed the public hearing. CC:12 -18 -98 Page Y-1 r MOTION BY COUNCILMAN TAYLOR, SECOND BY MAYOR PRO TEM VASQUEZ that the Council approve the transfer of control to Paul G. Allen, and adopt Resolution No. 98 -54 conditionally approving the transfer. Before vote could result, more discussion ensued. Councilman Imperial asked what the current cable franchise agreement will cover. Mr. Imperial stated that with the past companies, he had requested a 20% discount for seniors and handicapped people, and for the companies to maintain an office in Rosemead. . Mel Matthews, Director of Government and Community Relations for Charter Cable TV, explained that a discount is offered to seniors and disabled persons as per the terms of the current franchise. Mr. Matthews stated that there is a full service office in Alhambra and he has discussed with staff possible mail location or check chasing site in Rosemead to provide an additional payment place for residents. Councilmember Clark suggested exploring the possibility of paying cable tv bills at Beach's Market as they already provide a utility bill payment service there. Mayor Bruesch asked if Charter was going to provide a character generator and an requested an explanation of the "most favored nations" clause? Donald Wagner, Assistant City Manager, responded that the City does not have a character generator yet. Mr. Matthews stated that the "most favored nations" clause is an assurance that Rosemead will receive a level of service that would be comparable to their other service areas. Mayor Bruesch requested a yearly list of the four events per year that Cable TV will cover. Cary Reisman, City Attorney, asked Mr. Matthews how soon the character generation equipment and operation could be in place? Mr. Matthews responded that it would probably take a few months to work out technically, and, once in place, City staff would be responsible for programing and keeping it up to date. Mr. Reisman requested that the following provisions be included in the franchise renewal that guarantees that the character generation equipment could be operative within a six month timeframe; and to include cable, cable modems and internet access for every school and public building. Mr. Reisman clarified that the 10% low income discount mentioned in Mr. Matthew's letter refers to senior low income. At this point, the Mayor called for the question on Resolution 98 -54. Yes: Vasquez, Taylor, Bruesch, Clark, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. Page 42 MOTION BY COUNCILMAN TAYLOR, SECOND BY COUNCILMEMBER CLARK that the Council approve the principle negotiating points for Cable television franchise agreement, as set forth in the letter dated December 1, 1998 from Melvin Matthews of Charter to Assistant City Manager Donald J. Wagner (as modified with regard to point 2), together with any additional points resulting from the public hearing process and amendments as made by the City Attorney, and instruct staff to prepare a Franchise Agreement and Ordinance Amendment for consideration by the Council at the January 26, 1999 meeting. Vote resulted: Yes: Vasquez, Taylor, Bruesch, Clark, Imperial No: None Absent: None Abstain: None "' " The Mayor declared said motion duly carried and so ordered. III. LEGISLATIVE - None IV. CONSENT CALENDAR /CC -A AUTHORIZATION TO ATTEND LEAGUE OF CALIFORNIA CITIES MAYORS AND COUNCILMEMBER INSTITUTE, JANUARY 6-8,1999, SACRAMENTO. MOTION BY COUNCILMEMBER CLARK, SECOND BY MAYOR PRO TEM VASQUEZ that the Council authorize the attendance of any Councilmember, City Manager and staff designees. Vote resulted. Yes: Vasquez, Taylor, Bruesch, Clark, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. V. MATTERS FOR DISCUSSION AND ACTION - None VI. STATUS REPORTS - None VII. MATTERS FROM OFFICIALS VIII. ORAL COMMUNICATIONS FROM THE AUDIENCE Nick Conway, San Gabriel Valley Council of Governments, addressed the Council on the issue of the expansion of the Foothill Transit Zone. Mr. Conway stated that Rosemead is one of nine cities currently outside that zone, and that COG will be submitting an application soon to MTA to begin the expansion process into the Foothill Transit Zone, hopefully resulting in starting the implementation of having a unified Valley served by the Foothill Transit Zone within the next year. Mr. Conway passed out a pamphlet outlining their study on the use public transportation funds and unmet transit needs in the San Gabriel Valley. Foothill Transit has 'provided the best public transportation system in the Valley at a substantially reduced cost than MTA. Foothill Transit has been awarded the Gold Medal Award twice in the past ten years bestowed by the American Public Transportation for having the finest public transportation system in the United States. Mr. Conway reported that a sizeable increase in the population is anticipated and that there are a number of unmet transportation needs in the Valley; such as the need for 130 more buses on the road now, plus an additional 88 buses by the year 2020 or an increase of 67 %. Mr. Conway stated that the MTA is probably at its most vulnerable period since its existence and has CC 12-18-98 Pagc 43 RESOLUTION NO. 98-54 A RESOLUTION OF TIME CITY COUNCIL OF THE CITY OF ROSEMEAD GRANTING THE APPLICATION OF PAUL G. ALLEN AND CHARTER COMMUNICATIONS ENTERTAINMENT II, LLP AND RELATED COMPANIES TO ASSIGN AND TRANSFER CONTROL OF THE NON - EXCLUSIVE CABLE TELEVISION FRANCHISE IN THE CITY OF ROSEMEAD TO PAUL G. ALLEN WHEREAS, the City of"an-Gttbtiel ("CITY") granted to the predecessors of Charter Communications Entertainment II, L.P., a franchise as set forth in the franchise agreement dated June 27, 1985, . to own and operate a cable television system in the City of Rosemead; and WHEREAS, on July 29, 1998 Charter entered into a Purchase Agreement (the "Agreement ") with Paul G. Allen ( "Buyer "); and WHEREAS, the Agreement provides for the sale of stock, transfer of control and the restructuring of Charter; and WHEREAS, Charter and Buyer ( "Applicants ") filed an FCC Form 394 Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise with CITY on or about August 18, 1998; and WHEREAS, CITY has duly conducted a thorough review and investigation into the legal, technical and financial qualifications of the Buyer to own and operate the cable television system in light of the above - referenced FCC Form 394; and WHEREAS, all written comments and staff reports have been received and made a pail of the record; and WHEREAS, following review and investigation, the CITY has concluded that the , Applicants have established that, with the assurances provided by Applicants, the Buyer meets the legal, technical and financial criteria to operate the cable television system and the Applicants have satisfied all criteria set forth in and /or under all applicable or required City of Rosemead and federal documents, laws, rules and regulations, including FCC Form 394, for this transfer. NOW, THEREFORE, BE IT RESOLVED, that in consideration of the foregoing and the premises set forth herein, the CITY agrees to the following: COUNCIL AlxU'i'DA DEC 151998 fi. ITEM No. ___ SENT BY: WALLIN KRESS REISMAN ;12- 9 -98 ; 4 :32PM ; P 1. CITY consents to the restructuring of Charter and the transfer of control /assignment of franchise of the cable television system serving CITY to the Buyer (or a specifically identified and approved designee entity ot'Buyer), effective upon the closing of the transactions contemplated by the Agreement; 2. CITY further consents to the change of name or corporate designation attendant with the restructuring of Charter, if any, as set forth within FCC Form 394; 3 CITY confirms that (a) the Franchise is valid and outstanding and in full force and effect; (b) there have been no amendments or modifications to the Pranchise, except as set forth herein; (c) Charter is materially incompliance with the provisions of the Franchise; and (d) there are no defaults under the Franchise, or events which, with giving of notice or passage of time or both, could constitute events of default thereunder. SECTION This resolution shall take effect immediately. 5ECT1ON 3 . The City Clerk shall certify to the adoption of this Resolution. PASSED, APPROVED and ADOPTED by the Rosemead City Council on this day of December, 1998. ATTEST: Nancy Valderrama, City Clerk City of Rosemead 1310) 450 -0506 818 307 9218;# 3/ 6 Robert Bruesch Mayor City of Rosemead F RESOLUTION NO. 98 -54 A RESOLUTION OF THE CITY COUNCIL OF THE CFFY OF ROSEMEAD DENYING WIT C PREJUDICE THE APPLICATION OF PA G. ALLEN AND CHARTER COMMUNIC IONS ENTERTAINMENT 1I, LLP AND RE ATED COMPANIES TO ASSIGN AND T NSFER CONTROL OF THE NON -EXC SIVE CABLE TELEVISION FRANCHISE I HE CITY OF ROSEMEAD TO PAUL G. ArLEN WHEREAS, the City of Rosemead Communications Entertainment II, L.P. a fr June 27, 198$, to own and operate a cable ' ") granted to the predecessors of Charter as set forth in the franchise agreement dated n system in the City of Rosemead; and WHEREAS, on July 29, 1 "Agreement ") with Paul G. Allen ( er entered into a Purchase Agreement (the and WHEREAS, the Agrce ent provides for the sale of stock, transfer of cuntrol and the restructuring of Charter; and WHEREAS, Charter and Buyer ( "Applicants ") filed an FCC Form 394 Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise with CITY on/or ahout August 18, 1998; and WHEREAS, /the CITY has duly conducted a thorough review and investigation into the legal, technical and financial qualifications of the Buyer to own and operate the cable television system in light of the above - referenced FCC Form 394; and WHEREAS , the CITY has reviewed the FCC Form 394, all supplemental information submitted in ration thereto, and the various Staff reports and related documents; and WHEREAS, the CITY has determined that it the Buyer does not have the requisite technical gl,alifications to own and operate the cable television system; and �VNEREAS, the CITY has determined that it would not be in the public interest to the Transfer at this point in time and has determined that it would be in the public to disapprove the Transfer without prejudice subject to future NOW, THEREFORE, BF, I1' RESOLVED, that: S UCTION 1. The recitals above are hereby declared to be tru DEC ar 151998 ITEM No. xl 2 e, at;cnratz� and correct SENT BY: WALL IN KRESS REISiMAN ;12- 9 -98 ; 4 :32PM. ; (310) 450 - 0506- 818 307 9218:# 5/ 6 2. The transfer of control of the Franchise and Franchisee from Charter to the Buyer, as described in the FCC Farm, is hereby disapproved for the following reasons: (a) The Applicants have failed to timely provide all necessary additional information requested by the City relating to the Transfer's potential impact upon existing and future rates and the legal, technical and financial qualifications of the Buyer to own and operate the cable television system serving the City (the "System "). (b) The Buyer has failed to demonstrate that it is a technically qualified applicant for the following reasons. (1) The burden of proof is upon the Buyer to demonstrate its legal, technical, and financial qualifications to assume control of the Franchise and the Franchisee. (2) The Buyer possesses no track record in the operation of cable television systems or the provision of cable television services. The Applicants have failed to present any affirmative evidence demonstrating the Buyer's technical and experience qualifications to own and operate cable systems. Although the Buyer may possess significant experience and expertise in the development of computer software and related products, as well as the operation of professional sports teams, no evidence was presented by the Applicants demonstrating the Buyer's technical and experience qualifications to own and operate cable television systems on a limited or large scale basis. (3) No evidence has been presented by the Applicants as to the Buyer's contractual commitment, long -tern, short-term, or otherwise, to maintain existing Charter management and /or operating policies and procedures. (4) Given the risks associated with the Transfer, as identified above, it will not be in the public interest for the City to unconditionally approve the Transfer at this time. The disapproval of the Transfer contained herein is without prejudice and may be reconsidered by the City Council whe» and if the Applicants are able to present evidence demonstrating the Buyer's technical suitability. SENT BY WALLIN KRESS REISMAN ;12- 9 -98 ; 4 33PM (310) 450 - 0506 818 307 9218:# 6/ 6 3. A transfer of the Franchise, transfer of actual or managerial control of the Franchise, and /or transfer of control of the Franchisee, shall be deemed a material breach of the Franchise. SEC TION 2. This resolution shall take effect immediately. SECTION 3 . The City Clerk shall certify to the adoption of this Resolution. PASSED, APPROVED and ADOPTED by the Rosemead City Council on this day of December, 1998. ATTEST: Nancy Valderrama City Clerk City of Rosemead Robert Bruesch Mayor City of Rosemead 3 II TO: FROM: DATE: SUBJECT: HONORABLE MAYOR AND MEMBERS 1 RO SEMEAD CITY COUNCIL G. TRIPEPI, CITY MANAGER NOVEMBER 16, 1998 . SCHEDULE FOR CONSIDERATION OF PENDING ACQUISITION OF CHARTER CABLE TELEVISION BY PAUL ALLEN AND THE RENEWAL OF FRANCHISE AGREEMENT The purpose of this item is to discuss Charter's pending acquisition by Paul G. Allen and the renewal of the City of Rosemead's cable television franchise agreement with Charter Communications. These two issues are related because some of the same considerations must be reviewed in connection with the sale of a cable television franchise as are reviewed in franchise renewal. Therefore, while considering whether or not to approve the sale, staff suggests that this is a good time to discuss renewal of the franchise agreement. BACKGROUND In 1985, the City of Rosemead granted a nonexclusive fifteen year cable television franchise to Falcon Communications. The franchise granted authority to the cable operator to use public streets and other public rights of way to engage in the business of operating a cable television system. Ownership of the cable company has changed several times over the years. Charter Communications has been the owner and operator of the cable system since October, 1995. In August, 1998, Charter notified the City that Paul G. Allen, co- founder of Microsoft, had made an offer to purchase Charter Communications. Charter therefore filed the required papers, and requested the City's approval of the sale. Approval or rejection must occur by December 22, 1998, or the transfer is deemed approved. DISCUSSION The following is a summary of facts on the current franchise: The term of the current franchise agreement is expiring on June 27 of 2000. agreement to discuss possible issues. 2. The City has met with Charter Communications regarding renewal of the franchise COUNCIL. AGENDA NOV 2 41999 ITEM No. 7E. A Charter Franchise Transfer November 16, 1998 Page 2 3. Section 626 of the Cable Act provides the legal basis and framework for all cable television franchise renewals. The franchising authority must consider the following four factors: * Whether the cable operator has "substantially complied" with the material terms of the franchise and with applicable law. * Whether the quality of the operator's service has been "reasonable in light of community needs ". * Whether the cable operator has the financial, legal and technical ability to provide the services, facilities and equipment set forth in the proposal. * Whether the operator's proposal is reasonable to meet the future needs and interests of the community, taking into account the cost of those needs. 4. As part of the franchise renewal process, identification of cable- related community needs and interests is required. In addition, a review of the performance of the cable operator during the existing franchise term is also completed. Section 76.502 of the FCC rules regarding cable franchises (47 C.F.R. § 76.502) provides that franchising authorities can deny a request for transfer only if the proposed transferee lacks legal, technical or financial qualifications to operate the franchise. Under the Cable Act, a city can only deny a franchise if the incumbent company has substantially failed to offer reasonable levels of service, has failed to comply with the terms of the franchise, or lacks the financial, legal or technical ability to provide services reasonable to satisfy community needs. Since City staff is not aware of substantial failure on the part of Charter Communications in these areas, the City is proceeding with the renewal process. For the same reasons, unless information comes to light that Mr. Allen lacks the legal, technical or financial qualifications to operate the franchise, staff will recommend approval of the transfer. The points for discussion during the renewal process include the term of agreement, computation of franchise fees, continuation of Senior Citizen discounts, convenience of bill payment locations, recovery of renewal costs, educational and government access, equipment grants, including provision of character generating equipment to post city notices, programming support, technology upgrades, and customer service requirements. Charter Franchise Transfer November 16, 1998 Page 3 SUMMARY In order to proceed with the franchise renewal process, an opportunity for public input is valued and necessary. The Public Hearing can be noticed and will request input on the four factors outlined above that a franchising authority must consider. If it is the Council's decision to move ahead with the renewal, it is anticipated the franchise renewal will be complete and ready for City Council action in January, 1999. As a result, the content of the public testimony received during the public hearing and the input received by City staff would be included in the remaining renewal discussions with the Charter Communications. Staff is suggesting this matter be scheduled for an adjourned meeting on December 15, 1998. RECOMMENDATION Schedule consideration of the sale of Charter Communications to Paul G. Allen for an adjourned meeting on December 15, 1998 and notice a public hearing for that same date to consider input from the public on the renewal of the City of Rosemead's cable television franchise agreement with Charter Communications. omWmM .1198 OCHARTER August 18, 1998 The Honorable Robert W. Bruesch Mayor City of Rosemead 8838 E. Valley Blvd Rosemead, CA 91770 Dear Mayor Bruesch: Over the past five years, Charter Communications, Inc. and its affiliated entities ( "Charter") has grown to be the 10' largest multiple system operator ( "MSO ") in the United States. Charter accomplished this phenomenal growth with the aide of some trusted and valued partners. Charter provided the expertise and cable management acumen while our partners, primarily Kelso & Company and Charterhouse Group International, Inc., provided access to equity and capital. With the wave of consolidations in the industry, Charter's senior management has been looking at ways to consolidate the ownership and control of all of the cable properties managed by Charter under a single umbrella company. We have recently explored the idea of an IPO (issuing public stock) to provide the liquidity needed to further grow and expand and may still pursue this option in the future. As we explored all of our alternatives, we were presented with an option that provided for consolidation of the entities, access to capital, and a vision which is unsurpassed in the industry. We are extremely pleased to have been chosen by Paul G. Allen, co- founder of Microsoft, to manage his cable properties and to help develop and deliver his vision of the "Wired World. "' In short, Allen envisions a connected future marked by the merger of high bandwidth data channels, the power of the personal computer and the availability of compelling content. You will be pleased to know that there will be no increase in debt -to- equity ratios of the entities as a result of this transaction. Mr. Allen will assume the current debt and in many instances liquidate some debt instruments. Notwithstanding the consumer benefit of this transaction, the effect of this transaction on you and your subscribers should be transparent for the most part. The current corporate staff and system management will remain under my leadership. And of course, Charter will retain its commitment to superior customer service. In reviewing this application, you are called upon to determine that the applicant meets the legal, technical and financial qualifications to own and operate a CATV system. In this instance; legal and technical qualifications are a non -issue since there is no change in either corporate or system management. We think you will agree that the financial condition of the company can only be strengthened by this consolidation and infusion of equity. The men and women of Charter are eager to focus our energy toward deploying new technology and hope for a speedy transfer process. Paul Allen's vision helped bring forth the computer revolution. Just imagine the possibilities when compelling content, personal computing and high bandwidth data channels combine. The staff at Charter looks forward to bringing you the "Wired World." Sincerely, ° s / Jerald L. Kent President and CEO 12444 Powerscourt Drive • Suite 100 • St. Louis, Missouri 631 31 -3 66 0 • (314) 965 -0555 • Fax (314) 909 -0675 • Intemet http: \ \www.chartercom.com r � O `Y• 9 y O staf epor TO: HONORABLE MAYOR AND MEMBERS ROSEMEAD CITY COUNCIL FROM: G. TRIPEPI, CITY MANAGER DATE: NOVEMBER 16, 1998 . SUBJECT: SCHEDULE FOR CONSIDERATION OF PENDING ACQUISITION OF CHARTER CABLE TELEVISION BY PAUL ALLEN AND THE RENEWAL OF FRANCHISE AGREEMENT The purpose of this item is to discuss Charter's pending acquisition by Paul G. Allen and the renewal of the City of Rosemead's cable television franchise agreement with Charter Communications. These two issues are related because some of the same considerations must be reviewed in connection with the sale of a cable television franchise as are reviewed in franchise renewal. Therefore, while considering whether or not to approve the sale, staff suggests that this is a good time to discuss renewal of the franchise agreement. BACKGROUND In 1985, the City of Rosemead granted a nonexclusive fifteen year cable television franchise to Falcon Communications. The franchise granted authority to the cable operator to use public streets and other public rights of way to engage in the business of operating a cable television system. Ownership of the cable company has changed several times over the years. Charter Communications has been the owner ,and operator of the cable system since October, 1995. In August, 1998, Charter notified the City that Paul G. Allen, co- founder of Microsoft, had made an offer to purchase Charter Communications. Charter therefore filed the required papers, and requested the City's approval of the sale. Approval or rejection must occur by December 22, 1998, or the transfer is deemed approved. DISCUSSION The following is a summary of facts on the current franchise: 1. The term of the current franchise agreement is expiring on June 27 of 2000. 2. The City has met with Charter Communications regarding renewal of the franchise agreement to discuss possible issues. COUNCIL f{G - i — NOV 241999 Charter Franchise Transfer November 16, 1998 Page 2 3. Section 626 of the Cable Act provides the legal basis and framework for all cable television franchise renewals. The,_ franchising authority must consider the following four factors: * Whether the cable operator has "substantially complied" with the material terms of the franchise and with applicable law. * Whether the quality of the operator's service has been "reasonable in light of community needs ". * Whether the cable operator has the financial, legal and technical ability to provide the services, facilities and equipment set forth in the proposal. * Whether the operators proposal is reasonable to meet the future needs and interests of the community, taking into account the cost of those needs. 4. As part of the franchise renewal process, identification of cable - related community needs and interests is required. In addition, a review of the performance of the cable operator during the existing franchise term is also completed. Section 76.502 of the FCC rules regarding cable franchises (47 C.F.R. § 76.502) provides that franchising authorities can deny a request for transfer only if the proposed transferee lacks legal, technical or financial qualifications to operate the franchise. Under the Cable Act, a city can only deny a franchise if the incumbent company has substantially failed to offer reasonable levels of service, has failed to comply with the terms of the franchise, or lacks the financial, legal or technical ability to provide services reasonable to satisfy community needs. Since City staff is not aware of substantial failure on the part of Charter Communications in these areas, the City is proceeding with the renewal process. For the same reasons, unless information comes to light that Mr. Allen lacks the legal, technical or financial qualifications to operate the franchise, staff will recommend approval of the transfer. The points for discussion during the renewal process include the term of agreement, computation of franchise fees, continuation of Senior Citizen discounts, conve nience of bill payment locations, conve recovery of renewal costs, educational and government access, eq ip enntt g.rants support upporta provision of character generating equipment to post city notices, p g technology upgrades, and customer service requirements. Pf Charter Franchise Transfer November 16, 1998 Page 3 SUMMARY In order to proceed with the franchise renewal process, an opportunity for public input is value and necessary. The Public Hearing can be noticed and will request input on the four factors outlined above that a franchising authority must consider. If it is the Council's decision to move ahead with the renewal, it is anticipated the franchise renewal will be complete and ready for City Council action in January, 1999. As a result, the content of the public testimony received during the public hearing and the input received by City staff would be included in the remaining renewal discussions with the Charter Communications. Staff is suggesting this matter be scheduled for an adjourned meeting on December 15, 1998. RECOMMENDATION Schedule consideration of the sale of Charter Communications to Paul G. Allen for an adjourned meeting on December 15, 1998 and notice a public hearing for that same date to consider input from the public on the renewal of the City of Rosemead's cable television franchise agreement with Charter Communications. �r Nm�.iiss OCHARTER August 18, 1998 The Honorable Robert W. Bruesch Mayor City of Rosemead 8838 E. Valley Blvd Rosemead, CA 91770 Dear Mayor Bruesch: Over the past five years, Charter Communications, Inc. and its affiliated entities ( "Charter") has grown to be the 10 largest multiple system operator ( "MSO ") in the United States. Charter accomplished this phenomenal growth with the aide of some trusted and valued partners. Charter provided the expertise and cable management acumen while our partners, primarily Kelso & Company and Charterhouse Group International, Inc., provided access to equity and capital. With the wave of consolidations in the industry, Charters senior management has been looking at ways to consolidate the ownership and control of all of the cable properties managed by Charter under a single umbrella company. We have recently explored the idea of an IPO (issuing public stock) to provide the liquidity needed to further grow and expand and may still pursue this option in the future. As we explored all of our alternatives, we were presented with an option that provided for consolidation of the entities, access to capital, and a vision which is unsurpassed in the industry. We are extremely pleased to have been chosen by Paul G. Allen, co- founder of Microsoft, to manage his cable properties and to help develop and deliver his vision of the "Wired World" In short, Allen envisions a connected future marked by the merger of high bandwidth data channels, the power of the personal computer and the availability of compelling content. You will be pleased to know that there will be no increase in debt -to -equity ratios of the entities as a - result of this transaction. Mr. Allen will assume the current debt and in many instances liquidate some debt instruments. Notwithstanding the consumer benefit of this transaction, the effect of this transaction on you and your subscribers should be transparent for the most part. The current corporate staff and system management will remain under my leadership. And of course, Charter will retain its commitment to superior customer service. In reviewing this application, you are called upon to determine that the applicant meets the legal, technical and financial qualifications to own and operate a CAN system. In this instance, legal and technical qualifications are anon -issue since there is no change in either corporate or system management. We think you will agree that the financial condition of the company can only be strengthened by this consolidation and infusion of equity. The men and women of Charter are eager to focus our energy toward deploying new technology and hope for a speedy transfer process. Paul Allen's vision helped bring forth the computer revolution. Just imagine the possibilities when compelling content, personal computing and high bandwidth data channels combine. The staff at Charter looks forward to bringing you the "Wired World" Sincerely, c)i Jerald L. Kent President and CEO kY9/ I a« n«C . c..., 1:1 A ono.1)47c . imemet httD: \ \www.chartercom.com V. MATTERS FOR DISCUSSION AND ACTION '�A. SCHEDULE FOR CONSIDERATION OF PENDING ACQUISITION OF CHARTER CABLE TELEVISION BY PAUL ALLEN AND THE I�i�i'IJ ilIT,11= y�]`►I�fil.'I � !l7ai �uT1 �l►`� 1 MOTION BY COUNCILMAN TAYLOR, SECOND BY COUNCILMAN IMPERIAL that the Council schedule a meeting to consider the sale of the Company and a Public Hearing to consider renewing the franchise on December 15, 1998. Vote resulted: Yes: Vasquez, Taylor, Bruesch, Clark, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. At this time, Councilman Imperial recognized John Nunez, President of the Garvey School Board. VI. STATUS REPORTS - None VII. MATTERS FROM OFFICIALS A. AUTHORIZATION TO RECRUIT FOR UNSCHEDULED TRAFFIC COMMISSION VACANCY MOTION BY COUNCILMAN TAYLOR, SECOND BY MAYOR PRO TEM VASQUEZ that the Council approve placement of ads in the Chamber's monthly Rosemead Report, post notices, mail letters to prior applicants and schedule a deadline date of January 21, 1999. Vote resulted: Yes: Vasquez, Taylor, Bruesch, Clark, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. B. COUNCILMAN TAYLOR Asked if the water or gas lines have been changed on the Lorica Street improvement project. Mr. Taylor stated his concern with the gas lines for potential leaks as they are probably 40 years old. Ken Rukavina, City Engineer, responded that the Gas Company was asked to do a leak survey and to replace any problem lines. Mr. Rukavina continued that the Gas Company has a five year moratorium on doing any repairs or improvements unless they are emergencies. Mr. Taylor asked if the gas lines were visually checked for corrosion. Mr. Rukavina responded that the Gas Company did a leak survey, but did not actually dig down to visually inspect them. Councilman Taylor asked what assurance is there of the pipes not leaking. Mr. Taylor requested a reconfirmation from the Gas Company that they are satisfied that there are no potential leaks. CC:I1 -24 -98 Page #4 4Q� CHARTER COMMUNICATIONS ,fix,, .,, April 26, 1995 Frank G. Tripepi City Manager City of Rosemead 8838 E. Valley Blvd. Rosemead, CA 91770 Dear Mr. Tripepi: In previous correspondence, we informed you of Gaylord Entertainment's decision to sell its cable holdings (formerly Cencom Cable Television dba Crown Cable). At this time, we respectfully request your consent to assignment of the cable franchise to Charter Communications Entertainment II, L.P. Please find enclosed a completed FCC Form 394 - Application for Franchise Authority Consent To Assignment or Transfer of Control of Cable Television Franchise, along with a model transfer ordinance and all required exhibits and documentation. On March 30, 1995, Gaylord Entertainment executed a contract to sell the stock of Cencom Cable Television, Inc. which assets include the franchise to operate a CATV system within the City of Rosemead. The Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act ") requires that this documentation be provided in order to certify to the local franchising authority that the proposed transfer does not violate the 3 year holding period required by the 1992 Cable Act. The 1992 Cable Act and implementing regulations also provide the standard of review upon which the City is to judge the request for assignment. It is important to understand that the transfer process is separate and distinct from a franchise renewal because the standards that are used to govern the appropriateness of a transfer are different from the standards used to determine if a franchise may be renewed. One of the more important points of distinction are the time frames involved. While the renewal process may take up to 36 months, the request for transfer is deemed granted if not acted upon within 120 days of its submission. Although the City may make request(s) for additional information, these requests would not toll the 120 day period. It is our desire to work closely with you to expedite the transfer process within the next 60 -90 days, if possible. The technical issues to be reviewed in the transfer process involve only whether or not the transferee possesses the legal, technical and financial qualifications to operate the franchise. 2215 W. Mission Road • P.O. Box 1451 • Alhambra, CA 91802 -1451 • (818) 300 -6100 li City of Rosemead April 26, 1995 Page 2 We are happy to have been able to serve the cable needs of the City of Rosemead and we believe that Gaylord, along with Charter Communications, has provided you sufficient information to enable you to make a speedy determination on this application for assignment. Please feel free to contact me if you have any questions. Sincerely, 1 / 1 K in P. gional alifornia enclosures c: Hon. Joseph Vasquez, Mayor Don Wagner, Assistant to City Manager .F.d..N C. .un ..... Gmmi.�on • Wv.Nn0mn, 0. C. 206aa FCC 394 APPLICATION FOR FRANCHISE AUTHORITY CONSENT TO ASSIGNMENT OR TRANSFER OF CONTROL OF CABLE TELEVISION FRANCHISE SECTION I. GENERAL INFORMATION App'--.d by 11a 2060 -0eta um'.. oecttrue FOR FRANCHISE AUTHORITY USE ONLY DATE Anri 1 90 1 QQS I 1. Community Unit Identification Number: r`Ai AF .1 2. Application for: Xa Assignment of Franchise Transfer of Control 3. Franchising authority: Rosemead 4. Identify community where the system /franchise that is the subject of the assignment or transfer of control is located: Rosemead, CA B. Date system was acquired or (for system's constructed by the transferor:assignorl the date on City State ZIP Cade NaS6ille Tennessee 37214 which service was provided to the first subscriber in the franchise area: 6. Proposed effective date of closing of the transaction assigning or transferring ownership of the system to trarssferee! assignee: Augus 1995 7. Attach as an Exhibit a schedule of any and all additional information or material fled with this application that is identified in the franchise as required to be provided to the franchising authority when requesting its approval of the type of transaction mat is the subject of this application. PART I - TRANSFEROR /ASSIGNOR Indicate the name. magma addrpsa .nd ml.,.b....e ..—r,_- _r .�._ �___.___- •___�____ Exhibit Nc. Legal name of Transferor /Assignor (if individual, list last name fast) Assumed name used for doing business (if any) Crown Cable Mailing street address or P.O. Box 9, Drive City State ZIP Cade NaS6ille Tennessee 37214 Telephone No. (include area code) 2.(a) Attach as an Exhibit a copy of the contract or agreement that provides for the assignment or transfer of control (including any exhibits or schedules thereto necessary in order to understand the terms thereof). If there is only an oral agreement, reduce the terms to writing and attach. (Confidential trade, business, pricing or marketing information, or other information not otherwise publicly available, may be redacted.) (b) Does the contract submitted in response to (a) above embody the full and complete agreement between the transferor /assignor and transferee /assignee? If No, explain in an Exhibit. Exhibit No. A Q Yes X�No Exhibit Nc. 6 Fc- tar. o ..- wopr P Charter Communiations Corporate St. Louis Headquarters 12444 Powerscourt Drive St. Louis, MO 63131 (314) 965 -0555 Management Group/Key Contacts Howard Wood Chairman, Management Committee Barry Babcock Chairman Jerry Kent President Kelvin Westbrook Executive Vice President Jeff Sanders Chief Financial Officer Ted Browne Executive Vice President - General Counsel Bob Bailey Senior Vice President - Operations Tom Jokerst Senior Vice President - Engineering Don Vollmayer Controller Jim Bogart Vice President - Government Relations Patty McCaskill Vice President - Programming & Pay Per View Don Johnson Vice President - Human Resources John McFerron Director of Regulatory Compliance Anita Lamont Director of Communications Melvin Bryant Director of Finance & Acquisitions Paul Estes Operations Analyst /Budget Coordinator (Vacant) Vice President - Marketing CONFIDENTIAL EXHIBITS (submitted under seal) A Cole, Raywid & Braverman Memo on Request for Confidential Treatment B Letter from Charter Request for Confidentiality C Asset Purchase Agreement D CCT Balance Sheet as of April 30, 1995 E CCE -II OpCo, LP Pro Forma Balance Sheet F Financial Statement as of December 31, 1994 (with Auditor's Report) G Charter Penetration Summary NON - CONFIDENTIAL EXHIBITS H List of franchises with expiration dates I Annual Employment Report 1993 J History of Charter Communications, Inc. K Master Log of City Complaints L Customer Complaints M Informational pamphlet for customers N CCE, LP Organizational Chart O List of Franchise Contacts P Charter Communications Management Group /Key Contacts Y' INDEX OF EXHIBITS CONFIDENTIAL EXHIBITS (submitted under seal) A Cole, Raywid & Braverman Memo on Request for Confidential Treatment B Letter from Charter Request for Confidentiality C Asset Purchase Agreement D CCT Balance Sheet as of April 30, 1995 E CCE -II OpCo, LP Pro Forma Balance Sheet F Financial Statement as of December 31, 1994 (with Auditor's Report) G Charter Penetration Summary NON - CONFIDENTIAL EXHIBITS H List of franchises with expiration dates I Annual Employment Report 1993 J History of Charter Communications, Inc. K Master Log of City Complaints L Customer Complaints M Informational pamphlet for customers N CCE, LP Organizational Chart O List of Franchise Contacts P Charter Communications Management Group /Key Contacts -_ Yes: Clark, Taylor, Vasquez, Bruesch, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. Councilmember Bruesch requested a memo for check No. 13795, 5922.26 to Mariposa Horticultural explaining what the extra landscape maintenance was for. B. RESOLUTION NO. 95 -33 - APPROVAL OF PROGRAM SUPPLEMENT NO. 006 TO STATE -LOCAL ENTITY MASTER AGREEMENT NO. SLTPP -5358, ASPHALT CONCRETE OVERLAY ON VARIOUS CITY STREETS The following Resolution was presented to the Council for adoption: RESOLUTION NO. 95 -33 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD APPROVING PROGRAM SUPPLEMENT NO.006 WITH THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR THE 1994/95 ASPHALT CONCRETE OVERLAY PROJECT MOTION BY COUNCILMEMBER BRUESCH, SECOND BY COUNCILMEMBER IMPERIAL that the Council approve Resolution No. 95 -36. Vote resulted: Yes: Clark, Taylor, Vasquez, Bruesch, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. C. RESOLUTION NO. 95 -35 - MAKING CERTAIN FINDINGS AND DETERMINATIONS WITH RESPECT TO REDEVELOPMENT AGENCY PAYMENT FOR 1995/96 ASPHALT OVERLAY PROJECT The following Resolution was presented to the Council for adoption: RESOLUTION NO. 95 -35 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD MAKING CERTAIN FINDINGS AND DETERMINATIONS WITH RESPECT TO REDEVELOPMENT AGENCY PAYMENT FOR THE FY 1995 -96 STREET LIGHTING IMPROVEMENTS AND ASPHALT CONCRETE OVERLAY ON VARIOUS CITY STREETS MOTION BY COUNCILMEMBER BRUESCH, SECOND BY COUNCILMEMBER CLARK that the Council adopt Resolution No. 95 -35. Vote resulted: Yes: Clark, Taylor, Vasquez, Bruesch, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. ftftc D. RESOLUTION NO. 95 -38 - CONSENTING TO THE TRANSFER AND ASSIGNMENT OF THE CABLETELEVISION FRANCHISE FROM CENCOM CABLE TELEVISION, INC. TO CHARTER COMMUNICATIONS ENTERTAINMENT II, L.P. CC 8 -8 -95 Page #5 � I 1 The following Resolution was presented to the Council for adoption: RESOLUTION NO. 95 -38 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD CONSENTING TO THE TRANSFER AND ASSIGNMENT OF THE CABLE TELEVISION FRANCHISE FROM CENCOM CABLE TELEVISION, INC. TO CHARTER COMMUNICATIONS ENTERTAINMENT ll, L.P. Juan Nunez, 2702 Del Mar Avenue, Rosemead, asked what types of customer complaints does the cable company receive. Mr. Tripepi responded that complaints would be about billing, interrupted service, etc. Councilmember Bruesch directed his question to Mr. Matthews representing Charter Communications and asked if the frequent change in ownership is due to the low coverage /penetration in the Alhambra region, of which Rosemead is part of. Mel Matthews, Regional Director of Government Relations with Charter Communications, agreed that the Los Angeles area is lower in percentage penetration due to many off -air signals and good reception which restricts their maximum potential penetration, but that they will continue to add new services to create a demand. Councilmember Bruesch indicated that one problem is lack of coverage and response to local events from the cable company. Mr. Bruesch stressed further that many requests from him and staff have failed to elicit any responses and pointed out that the cable company needs to commit to providing better coverage. Mr. Matthews assured the Council that upon receiving written notification of high profile events in the City, he will do his utmost to provide coverage. Councilmember Bruesch expressed his frustration with this same reoccuring problem through the years and in dealing with the constantly changing personnel. MOTION BY COUNCILMEMBER TAYLOR, SECOND BY COUNCILMEMBER CLARK that Resolution No. 95 -38 be adopted. Vote resulted: Yes: Clark, Taylor, Vasquez, Bruesch, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. Councilmember Imperial stated for the record his dissatisfaction and disappointment with the previous cable companies in Rosemead and that his Yes vote reflects his hope that Charter Cable will improve a bad situation with better representation of events. E. ORDINANCE NO. 758 - WATER QUALITY ORDINANCE REQUIRED FOR NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT IMPLEMENTATION AGREEMENT COMPLIANCE - ADOPT The following Ordinance was introduced to the Council for adoption: AN ORDINANCE OF THE CITY OF ROSEMEAD, CALIFORNIA, ADDING CHAPTER 7 TO ARTICLE 5, SANITATION AND HEALTH, OF THE ROSEMEAD MUNICIPAL CODE, IMPLEMENTING A STORM WATER MANAGEMENT PROGRAM PURSUANT TO THE NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM PERMITS PROGRAM CC 8 -8 -95 Page #6 u� Rj COUNCIL AGENDA AUG u 81995 TO: HONORABLE MAYOR AND MEMBERS ROSEMEAD CITY COUNCIL FROM: FRANK G. TRIPEPI, CITY MANAGER�6 DATE: AUGUST 2, 1995 RE: RESOLUTION NO. 95 -38- CONSENTING TO THE TRANSFER AND ASSIGNMENT OF THE CABLE TELEVISION FRANCHISE FROM CENCOM CABLE TELEVISION, INC. TO CHARTER COMMUNICATIONS ENTERTAINMENT II, L.P. Attached for your consideration is the aforementioned resolution and the supportive documents authorizing the transfer of the franchise from Cencom to Charter. The resolution and supportive documents have been reviewed by the City Attorney. Please note that the current franchise agreement expires June 27, 2000. Representatives from Charter will be present at the meeting to answer any questions you may have. RECOMMENDATION It is recommended that the Rosemead City Council adopt Resolution No. 95 -38 consenting to the transfer of the franchise from Cencom to Charter. ITEM No. Z -P. FGT:djw djw:ccstf(42) 1 2 3 4 5 6 7 8 9 10 11! 12 13 14 15 16'' 17 1 ! 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 95 -38 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD CONSENTING TO THE TRANSFER AND ASSIGNMENT OF THE CABLE TELEVISION FRANCHISE FROM CENCOM CABLE ..TELEVISION, INC. TO CHARTER COMMUNICATIONS ENTERTAINMENT 1I, L.P. WHEREAS, Cencom Cable Television, Inc., a Delaware Corporation( "Grantee "), is the duty authorized holder of a franchise granted by Ordinance No. 761 (the "Franchise ") authorizing the operation and maintenance of a cable television system and authorizing Grantee to serve the City (the "Grantor ") with cable television services, and WHEREAS, Grantee has advised Grantor that Grantee has entered into an agreement, dated as of March 30, 1995 (the "Purchase Agreement "), pursuant to which Grantee has agreed, subject to the satisfaction of certain closing conditions, to sell to Charter Communications Entertainment 11, L.P. the stock of Cencom Cable Television, Inc. and assets which include the franchise to operate a CATV system in the City of Rosemead; and WHEREAS, the applicable provisions of the Rosemead Municipal'Code and the Franchise require the written consent of the Grantor prior to any transfer or assignment of the Franchise to any person; and WHEREAS, Grantor finds and determines that it is in the public interest, convenience and necessity to approve and consent to the transfer of the Franchise from Grantee to Charter Communications Entertainment II, L.P., as referred to in the preceding recitals, and Grantor has 1 2 3 4 5 :7 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 N . evaluated the technical ability, financial capability and general characterof Charter Communications Entertainment II, L.P. and has determined all to be acceptable. NOW, THEREFORE, the City Council of the City of Rosemead hereby resolves as follows: Section 1 . Grantor hereby approves and consents to the (a) transfer, sale and assignment of the Franchise from Grantee to Charter Communications Entertainment II, L.P. as described in the recitals to this Resolution, and (b) creation of security interests in and the encumbrance of the Franchise and cable television system serving the City of Rosemead in order to secure indebtedness to be incurred by Charter Communications Entertainment II, L.P.; provided, however, that if there is a default, foreclosure, other judicial sale, or other exercise of remedies under such security interest or agreement, the Grantor reserves its rights as provided in the franchise and the Rosemead Municipal Code. Section 2 . Grantor's consent herein is hereby conditioned on Charter Communications Entertainment II, L.P.'s agreeing in writing, to all the terms, conditions and provisions of the Franchise. Section 3 . Charter Communications Entertainment II, L.P. shall provide, prior to operating the System as the transferee, the surety bonds and insurance coverage required by the Rosemead Municipal Code and the Franchise. S ection 4. It is the Grantor's position that neither Grantor's consent to transfer the Franchise, nor the Purchase Agreement, including the creation of security interests in the Franchise and cable television system, shall constitute the basis for a rate increase application. Notwithstanding the foregoing Grantor acknowledges that nothing in this Section 4 shall cause Charter Communications Entertainment II, L.P. to waive any of its rights pursuant to federal rate regulations. 1 3 4 5 6 7 8, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 5 . That the Grantor hereby affirms that the Franchise is validly held in the name of the Grantee, is in full force and effect, and is for a current term ending on June 27, 2000. Grantor acknowledges that Cencom Cable Television is not in breach or default with the terms and conditions of the franchise as of the date of this Resolution. Section 6 . The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Resolution and thereupon the same shall take effect and be in force. APPROVED and ADOPTED this 8th day of August, 1995. Mayor of the City of Rosemead ATTEST: City Clerk Yes: Clark, Taylor, Vasquez, Bruesch, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. Councilmember Bruesch requested a memo for check No. 13795, 5922.26 to Mariposa Horticultural explaining what the extra landscape maintenance was for. B. RESOLUTION NO. 95 -33 - APPROVAL OF PROGRAM SUPPLEMENT NO. 006 TO STATE -LOCAL ENTITY MASTER AGREEMENT NO. SLTPP -5358, ASPHALT CONCRETE OVERLAY ON VARIOUS CITY STREETS The following Resolution was presented to the Council for adoption: RESOLUTION NO. 95 -33 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD APPROVING PROGRAM SUPPLEMENT NO.006 WITH THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR THE 1994/95 ASPHALT CONCRETE OVERLAY PROJECT MOTION BY COUNCILMEMBER BRUESCH, SECOND BY COUNCILMEMBER IMPERIAL that the Council approve Resolution No. 95 -36. Vote resulted: Yes: Clark, Taylor, Vasquez, Bruesch, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. C. RESOLUTION NO. 95 -35 - MAKING CERTAIN FINDINGS AND DETERMINATIONS WITH RESPECTTO REDEVELOPMENT AGENCY PAYMENT FOR 1995/96 ASPHALT OVERLAY PROJECT The following Resolution was presented to the Council for adoption: RESOLUTION NO. 95 -35 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD MAKING CERTAIN FINDINGS AND DETERMINATIONS WITH RESPECT TO REDEVELOPMENT AGENCY PAYMENT FOR THE FY 1995 -96 STREET LIGHTING IMPROVEMENTS AND ASPHALT CONCRETE OVERLAY ON VARIOUS CITY STREETS MOTION BY COUNCILMEMBER BRUESCH, SECOND BY COUNCILMEMBER CLARK that the Council adopt Resolution No. 95 -35. Vote resulted: Yes: Clark, Taylor, Vasquez, Bruesch, Imperial No: None Absent: None Abstain: None The Mayor declared said motion duly carried and so ordered. ' 'Mr D. RESOLUTION NO. 95 -38 - CONSENTING TO THE TRANSFER AND ASSIGNMENT OF THE CABLE TELEVISION FRANCHISE FROM CENCOM CABLE TELEVISION, INC. TO CHARTER COMMUNICATIONS ENTERTAINMENT II, L.P. CC 8 -8 -95 Page #5 The following Resolution was presented to the Council for adoption: RESOLUTION NO. 95 -38 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD CONSENTING TO THE TRANSFER AND ASSIGNMENT OF THE CABLE TELEVISION FRANCHISE FROM CENCOM CABLE TELEVISION, INC. TO CHARTER COMMUNICATIONS ENTERTAINMENT ll, L.P. Juan Nunez, 2702 Del Mar Avenue, Rosemead, asked what types of customer complaints does the cable company receive. Mr. Tripepi responded that complaints would be about billing, interrupted service, etc. Councilmember Bruesch directed his question to Mr. Matthews representing Charter Communications and asked if the frequent change in ownership is due to the low coverage /penetration in the Alhambra region, of which Rosemead is part of. Mel Matthews, Regional Director of Government Relations with Charter Communications, agreed that the Los Angeles area is lower in percentage penetration due to many off -air signals and good reception which restricts their maximum potential penetration, but that they will continue to add new services to create a demand. Councilmember Bruesch indicated that one problem is lack of coverage and response to local events from the cable company. Mr. Bruesch stressed further that many requests from him and staff have failed to elicit any responses and pointed out that the cable company needs to commit to providing better coverage. Mr. Matthews assured the Council that upon receiving written notification of high profile events in the City, he will do his utmost to provide coverage. Councilmember Bruesch expressed his frustration with this same reoccuring problem through the years and in dealing with the constantly changing personnel. MOTION BY COUNCILMEMBER TAYLOR, SECOND BY COUNCILMEMBER CLARK that Resolution No. 95 -38 be adopted. Vote resulted: Yes: Clark, Taylor No: None Absent: None Abstain: None Vasquez, Bruesch, Imperial The Mayor declared said motion duly carried and so ordered. Councilmember Imperial stated for the record his dissatisfaction and disappointment with the previous cable companies in Rosemead and that his Yes vote reflects his hope that Charter Cable will improve a bad situation with better representation of events. E. ORDINANCE NO. 758 - WATER QUALITY ORDINANCE REQUIRED FOR NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT IMPLEMENTATION AGREEMENT COMPLIANCE - ADOPT The following Ordinance was introduced to the Council for adoption: AN ORDINANCE OF THE CITY OF ROSEMEAD, CALIFORNIA, ADDING CHAPTER 7 TO ARTICLE 5, SANITATION AND HEALTH, OF THE ROSEMEAD MUNICIPAL CODE, IMPLEMENTING A STORM WATER MANAGEMENT PROGRAM PURSUANT TO THE NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM PERMITS PROGRAM CC 8 -8 -95 Page #6