96-1398 � , , � ; council File # 13 98�
r�� ��� �
� f � �
4 � � j Green Sheet # ` �p
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA �
Presented By
Referred To Committee: Date
1
2 WHEREAS,the City has granted a non-exclusive cable franchise to Continental
3 Cablevision of Saint Paul, Inc., as provided in Appendix H of the Legislative Code, as amended
4 by the Settlement Agreement of September 15, 1992, (hereinafter referred to as the Franchise);
5 and
6 WHEREAS, Continental Cablevision of Saint Paul is a wholly owned subsidiary of
7 Continental Cablevision Inc., which fact was known to the City and relied upon by it in granting
8 the Franchise; and
9 WHEREAS, on May 3, 1996, Continental Cablevision of Saint Paul, requested the
10 consent of the City to a transfer of corporate control from Continental Cablevision Inc. to U.S.
11 West; and
12 WHEREAS,the Franchise provides that every change,transfer or acquisition of control
13 of Continental Cablevision of Saint Paul shall make the Franchise subject to cancellation unless
14 and until the Council shall have consented thereto, which consent will not be unreasonably
15 withheld; and
16 WHEREAS, state and federal law require City consent for said transfer to be effective;
17 and
18 WHEREAS, staff identified certain detrimental consequences to the City and to the
19 public from the proposed transfer; and
20 WHEREAS, the Transfer and Franchise Modification Agreement, a copy of which is
21 attached hereto,negotiated with City staff, and executed by authorized representatives of the
22 transfer parties,provides remedies for these detrimental consequences,
1 `� � - i398'
2 NOW THEREFORE BE IT RESOLVED,that the Mayor and the Director of Finance and
3 Management Services aze hereby authorized to execute the Transfer and Franchise Modification
4 Agreement.
5 BE IT FURTHER RESOLVED,that staff be and hereby is directed to draft the
appropriate ordinance amendments for submission for Council consideration.
, ,
_____________ --��______��____=====1
� �C I Nays � Absent I
B a e � Requested by Department of:
Bost�om
Guerin
Harr�
Megar
_ �'eune � ?
--------------- --�-°--- --1--- ---�---- By'
Adopted by Council: Date �� .\'� \��(P
Form Approv by City Attorney
Adoption Certified by Council Secretary
By: � �
BY: �-�-1� _ �r�c�-�-��..«
Approved by Mayor: Date �� Approved by Mayor for Submission to
Council
By: 'l!� ��,/ //
By: �/Ei"�l�
�.� �- c-��s'
c�ty c�� " °"�o�� �`aREEN SHEET �° _3 5 6 9 6
Gerry Strathmaa, 266-8575 �oeww�n�r ni�croR rt�"� �cmr couacu. �"m�
� �cm nrno�vFr �cmr c��ac
November 6 1996 � �R0R ❑eucoEr aaECroA �FlN.a�►or.seRV�s�.
+ �MAVaR(OR 118818TANT) �
TOTM.A►QF 8KKINNATURE P�OEB (CLIP ALL LOCATIONS FOR SIONATURE)
�r�ouES�o:
Approval of settlement agreement and providing consent to the transfer:of control of Continental Cablevision Sa,int Paul from
Continental Cablevision, Inc. to US WEST, Inc.
����8'�(�)°f��q) PERSONAL SERViCE CONTRACTS MUST ANSWER TNE FOLI.OWINA QUBSTIONS:
_Pura�aNa�coMll�aselON _crva.e�iv�E coMM+IBS�N t. Has n,is psrsoNfirm sver worked untiar a�rwaa ror ads dop�rm,snt9 -
_��� _ YES �NO
_8TAFF _ 2. Has Uws p�raoMirm sver bean a City employes?
YES NO
_DI81A1C'T COURT _ 3. Does ttYs psroon/Nrm poserst a aklll nen^ormaNY Poss�a�d bY�Y p+�dh�?
BuPPORTB WM�M�uNC�OBJECTIVE4 YES NO
E�cplNn ati yu��wKS on a�rN��I�t snd attroh to��h»t
N�m�o Pnoet.�.resuE.ow�+r�nam lwno.wna.wn«�.wi,«..w►n):
Contin�ental Cablevision is seeldng City consent to the transfer of control of Coniinental Cablevision Saint Faul to U S WEST, Inc..
ADVANTA4E8 IF APPRONEO:
The City will have an agreeme�which prot�ts the public interest with respect to the Saint Pau1 cable televisioa franchise..
Di&1alANTAOE8 IF APPROVED:
Nane.
�
o�s�ov�wr�s�No�r��raov�o:
The City will nced to withhold consent to the proposed transfer or, in the alternative, the proposed transfer of control vvill be
approved by default..
TOTAL AMOUNT OF TRANSACTION : COST/REVENUE QUOOETED(CIRCLH ONE) YES NO
FUNDINO 80tlRCE ACTIVITY NUMBER
FINANCIAI.INF'OpMATION:(EXPLAIN)
� � - ►3q�
City of Saint Paul
Office of the City Council
310 City Hall
Saint Paul, MN 55102
(612) 266-8575
INTER-DEPARTMENTAL MEMORANDUM
DATE: October 31, 1996
TO: Council President Dave Thune
Councilmember Jerry Blakey
Councilmember Dan Bostrom
Councilmember Dino Guerin
Councilmember Mike Harris
Councilmember Roberta Megar
Councilmember Janice Rett
FROM: Gerry Strathman, Director
SUBJECT: Settlement Agreement
The settlement agreement referenced in Council Resolution # 96- ►398 is not attached
because substantive issues are still in dispute. The agreement will be provided as soon
as it is completed and signed by Continental Cablevision, Inc.
It is expected that this agreement will be available for your review by no later than
Monday, November 4.
The final settlement agreement is expected to be similar to the DRAFT FOR
SETfLEMENT DISCUSSIONS ONLY Transfer and Franchise Modification
Agreement which is attached to this memo and which has been provided to you earlier.
Attachment.
1
. .' . ���'��n _ '��` �7
,•�
TRANSFER AND FRANCHISE . -
MODIFICATION AGREEMENT
THE CITY OF ST. PAUL, MINNESOTA ("CITY") , CONTINENTAL CABLEVISION OF ST. PAUL,
INC. ("COMPAN�, CONTINENTAL CABLEVISION, INC. AND US VJEST, INC. DO HEREgy
AGREE AS OF THE 13TH DAY OF NOVEMBER, 1996,AS FOLLOWS:
RECITALS .
WHEREAS: the Company is the holder of a franchise to provide cable service in the City of St.
Paut, subject to the provisions of that certain franchise agreement between the City and Company dated
November 10, 1983 (and the application incorporated therein), as amended, including by that certain
Settlement Agreement dated September 1�, 1992 (collectively,the Franchise Documents"); and subject
further to Ordinance No. 16661 (the "Cable Ordinance"); and •
VVI�EREAS: on May 3, 1996, Continental Cablevision, Inc., and U S WEST, Inc. submitted to
the City an FCC Form 394 Application for Consent requesting City consent to the change of control of
Company from Continental Cablevision, Inc. to U S WEST,Inc. or its���holly-owned subsidiary
Continental Merger Corporation (references to USWEST would refer to both companies if Continental
Merger Corporation becomes the entity or one of the entities controlling the Company, directly or
indirectly; otherwise; the term USWEST refers to US West, Inc.); and
VVHEREAS: pursuant to the requests of the City, Company has provided supplemental .
information in support of the Form 394 Application for Consent, including representations th�t the
Company does not expect the Transfer to have any effect on subscriber rates; and
VVHEREAS: while the control of Company will change, after the transaction,the Corr,pany will
remain the holder of the Franchise;
�'VIIEREAS: under the Franchise Documents and the Cable Ordinance,the proposed transaction
(hereinafter referred to as the"Transfer") requires approval from the City, and the Company, i�SWEST,
and Continental (collectively,the "Transfer Parties") desire that the City grant that approval; 4nd
WHEREAS: the City has determined that, in light of the facts available to it, it would not be ;
appropriate to approve the transfer absent certain guarantees and agreements,binding upon the Trans'fer�
Parties, including certain promises to ensure compliance with the provisions of the Franchise Documents;
and
WHEREAS: the City of St. Paul, by agreement, has tluough and including I�TOVember l 3, 1996 to
approve or disapprove of the proposed transfer; and '
. �� � � q�- ����
W�iEREAS: the Transfer Parties agree that it is appropriate to make such guarantees and '
agreements, subject to the City's approval of the transfer; and
NOW THEREFORE,IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL
CONSENTS SET FORTH HEREIN,THE CITY AND THE TRANSFER PARTIES AGREE AS
FOLLOWS:
Section 1. Affirmation of Franchise Obli.�ations.
1.1 Acceptance- Company hereby accepts, acknowledges, and agrees tl�at, after the Transfer, it
will continue to be bound by all of the commitments, duties and obligations,present, continuing and
future,that it had prior to the Transfer under the Franchise Documents (except to the extent the Franchise
Documents are amended pursuant to this Agreement) and under the Cable Ordinance.
1.2 Assumption of Obligations - Company agrees that neither the Transfer nor the City's
approval of the Transfer shall in any respect relieve it of responsibility for past acts or omissions, kno�un
or unknown; and Company hereby reaffirms that it shall be liable for and accepts the consequences of, any
such acts and omissions,known and unknown, including liability for any and all previously accrued but
unfulfilled obligations to the City under the Franchise Documents and applicable law to the same extent as
if the Transfer had not taken place, for all purposes, including revie�v of past performance for purposes of
determining whether its Franchise should be renewed..
1.3 Citv's Reliance U,pon Companies' Representations -The Transfer Parties acknow]edge and
agree that: the City's consent to the Transfer is made in reliance upon the representations, documents, and
information provided by the Transfer Parties in connection with the Transfer Application; each of the -
Transfer Parties is jointly and severally liable for the representations and warranties; and that the
representations and warranties include, vvithout limitation the following:
1.3.1 The Transfer Parties represent and warrant that the transfer does not require the
prior approval of the landlords of the building known as the"Union Depot"or in any respect affect the
lease or leases for the facility including any lease for any property in that building occupied by Cable
Access St. Paul.
1.3.2 The Transfer Parties represent and warrant that they understand that the franchise
is scheduled to expire on May 11, 1999 unless renewed or extended, and further represent and warrant that
the transfer is not based on any assumption that the franchise will be renewed or extended; and further
represent and warrant that,they take all financial risks associated��=ith the non-renewal or non-extension
of the franchise.
1.3.3 1�-ie Transfer Parties represent and warrant that they understand that, in approving
this transfer, St. Paul is not agreeing to approve any future transfer, and the Transfer Parties assume all
, 2
.� . � q�- ��g
risks and consequences associated with any. future transfer proceedings. . -
1.3.4 The Transfer Parties represent and warrant that the Transfer will not adversely
afFect the financial position of Company, or result in the System serving the City directly or indirectly
having responsibility for any additional debt. The parties further represent and warrant that the Company
will not in any respect reduce the quality of customer service in St. Paul, including by reducing the
number of customer service representatives,technicians or technical managers serving St. Paul.
1.3.5 The Transfer Parties represent and warrant that the Transfer will not result in any
increase in subscriber rates.
1.3.6 The Transfer Parties each hereby represent and warrant that: (a)the execution and
delivery of this Agreement do not contravene, result in a breach of, or constitute a default under, any
contract or agreement to which any of them is a party or by which any of them or any of their properties
may be bound (nor would such execution and delivery constitute such a default with the passage of time
or the giving of notice or both), and to the best of their knowledge do not violate or contravene any 1aw,
order, decree, rule, regulation or restriction to which any of them is subject; (b) each of the Transfer
Parties is duly organized, legally existing and in good standing under the laws of the states of their
respective organization; (c)this Agreement constitutes a legal,valid and binding obligation of each of the
Transfer Parties; and (d)the execution and delivery of, and performance under,this Agreement and the
Merger are within each of the Transfer Parties' respective power and authority without the joinder or
consent of any other party and have been duly authorized by all requisite action and are not in
contra��ention of their respective charters,bylaws, or other organizational documents, or of any indenture,
agreement or undertaking to which either of them is a party or by which they aze bound.
Section 2. Promise of USVJEST. .
2.1 Compliance with Franchise. USWEST agrees that, from and after the consummation of
the Transfer, it will not take any action that«�ould be a violation of this Agreement (when executed and
delivered),the Franchise Documents or the Cable Ordinance if the action had been taken by the Company
instead of USWEST. USVJEST shall comply and cause Company to fully comply with all of the terms
and coriditions set forth in the Franchise Documents,this Agreement(when executed and delivered), and
the Cable Ordinance.
Section 3. 1�TO Waiver. By its consent to the Transfer and execution of this Agreement,the City
waives none of its rights or prospective rights with respect to the Company's compliance with the terms,
conditions, requirements and obligations set forth in the Franchise Documents or the Cable Ordinance.
Without limiting the foregoing:
3.1 Future Transfers. The Transfer Parties hereby agree that a�ly future transfer of the Franchise
and/or the System, or transfer of control of the Franchise and/or the System, are subject to t]-,e review and
approval of the City in accordance with applicable federal, state and local laws including,without
' � 3
�� � � � q� - � ��
limitation, 47 U.S.C. § 537, and the Franchise Documents. •
3.2 Qualifications. Any consent given by the City to the Transfer is made without prejudice to,
or waiver of, any right of the City to fully investigate and consider the Company's financial,technical, and
legal qualifications and any other lawful considerations during any future franchise renewal or transfer
process.
3.3 Assi2nor's Defaults At no time will the Transfer Parties contend,either directly or
indirectly (including, without limitation, through the Company),that the City is barred,by reason of the
Transfer, from considering, or raising clauns based on, Company's defaults, or its failure to comply with
the terms and conditions of the Franchise Documents or with Applicable Law, including, without
limitation, any claim raised by the City against the Company for issues previously settled based upon a
failure to comply with all the terms of the Settlement Agreement.
3.4 Companv's Com.pliance. The City's approval of the Transfer s17a11 in no way be deemed a
representation by the City that the Grantee is in compliance with all of its obligations under the Franchise
Documents.
Section 4. � Conditions Upon Consent.
4.1 Institutional I�Teh�vork. Without limiting the provisions of Sections 1-3,the City
and Company agree to jointly undertake a review of the institutional network("I-Net"), for the purposes
set forth in this section. The Company shall take the actions required to conect the deficiencies to the
reasonable satisfaction of the City, pursuant to a corrective plan as set forth below, and, unless otherwise
approved by the City, must complete such actions by August 15, 1997.
4.1.1 The City and Company shall meet and attempt to agree on testing
issues. It is agreed that, tests shall be performed to address all the matters described in Section 4.1.3. It
is agreed that, test measurements shall be made in accordance with the NCTA Recommended Practices
for Measurements on Cable Television Systems, 2d Ed. November 1989 (as revised), to the extent that
document sets out a measurement procedure for a particular parameter (the measurement procedures
include, without limitations procedures for operating testing equipment). If the NCTA Recommended
Practices do not set out procedures for measuring a particular parameter or parameters the pan�eS �,,,��1
attempt to agree upon a measurement procedure. Whether or not there is an agreement on all testing
issues, after meeting, the City and Company shall together test the entire I-Net, and such portions of
the subscriber network as it may be necessary to test to fully understand and evaluate the performance
of the I-I�Tet. The tests will be performed using any agreed testing techniques, but if there h�.s been no
agreement, or if the agreement was incomplete, then tests shall be performed as part of the joint testing
using both techniques proposed by the City and techniques proposed by the Company (the term
"techniques" shall be intrepreted broadly to include testing procedures, test locations, what plant should
be tested, and so on). The parties shall meet to discuss testing procedures by December 15, 1996 and
' 4
.� � � � q� - i�I�
shall commence testing by January 15, 1997. The test program shall be designed so that testing is�
completed by February 1, 1997. Test results and analysis of test results shall be exchanged by
February 28, 1997. Each party shall promptly advise the other as to its conclusions with respect to
those tests. The City shall bear its own costs, and the Company shall bear its own costs associated with
the testing.
4.1.2 The Company shall provide the City with any information requested to
enable the City to develop its proposed testing procedures, or to carry out its responsibilities under this
Section 4 including,without limitation, maps showing the location of the I-Net and subscriber networks.
The Company shall also shall provide access to its facilities so that City may perform the testing.
4.1.3 The tests shall be designed to determine whether:
' 4.1.3.1 the I-I�Tet complies with:
4.1.3.1.1 the requirements set forth in the Franchise Documents,
including the technical performance standards under the
Settlement Agreement,��vhich requires that the I-Net at all
� times meets or exceeds the technical performance standards
in Section XV of the Company's application, as amended;
4.1.3.1.2 the FCC standards and guidelines (those standards shall be
applied as if the FCC standards applied to an I-Net, and as if
the standards were to be applied assuming that the point at
which the signal originates on the institutional network to the
point at which the signal is received by other institutional '
network locations is the appropriate path to measure for
purposes of determining wl-:ether the standards have been
satisfied); and
4.1.3.1.3 applicable industry standards given the nature of the services
that are to be provided over the I-I�Tet consistent with the
Franchise Docunients.
4.1.3.2 the I-I�Tet satisfies the Company's commitment in the Franchise Documents
��vith respect to the I-Net, including its obligation to provide an I-Net that can be reliably used to provide
high-quality bi-directional voice,video and data transmissions (including packet-switched data) among
multiple users; that can support expansion of services and transinission capabilities as contemplated by the
Franchise Documents, including need for reliable higher data rates and current and emerging technologies.
4.1.3.3 the Company has complied with its obligations under the Franchise
' S
�� q��- l 3��
Documents to build, extend,test and maintain the I-Net. .
4.1.4 By March 15, 1997,the Company shall submit a corrective plan to ensure
that the I-Net complies with the Company's obligations under the Franchise Documents and tests
hereunder. If appropriate,the corrective plan may require the Company to rebuild, replace or upgrade the
I-Net. The City shall conduct a hearing of the City Council to determine the adequacy of the corrective
plan. Such hearing shall be concluded within 30 days of submission of the plan, and the City shall make a
determination as to the adequacy of the plan within 30 days after the hearing.
4.1.5 After the City Council hearing, if the City finds that the corrective plan is
adequate, it shall direct the company to cany it out, and the plan shall be implemented and corrections to
the plant completed by August 15, 1997. If the City finds that the corrective plan is inadequate, or if
the City finds that the plan is adequate but the corrections are not made by August 15, 1997,the Company
shall be in default of its obligations under this agreement and under the Franchise Documents. However,
before implementing any remedies based upon the inadequacy of the plan due March 15,the City shall
provide the company 10 business days to revise the plan to make it adequate. Costs associated with
implementing the corrective plan shall be borne by the Company. In addition, Company agrees to pay the
City $100,000 no later than January 15, 1997, for the City's development of the I-Net Any action taken
pursuant to this section shall be considered a resolution of an outstanding obligation. I�'othing in tllis
Section prevents the parties from agreeing on a corrective plan.
4.2 Svstem Capacitv, The Company shall activate and file a certificafe that it has activated 550
MHz capacity on the System by January 1, 1997. Company acknowledges its obligation under Franchise
Article III, Section 1(e)that if the System is upgraded to seventy-eight(78) channels or more, Company
will add one (1) channel, in addition to the six(6) channels already required by that section,upon demand
by City, for public access, as provided therein. .
4.3 Reimbursement. The Company agrees to pay the City $30,000 in conjunction with City's
review of the change of control from Continental to USVJEST. The payment shall be due I�Tovember 30,
1996, and in any case within five days of the Closing Date for the transfer.
4.4 Parent Guarantv. Company agrees to provide a parent company guaranty from U S WEST
acceptable to City assuring compliance by the Company with all the obligations of the Franchise
Documents, including as amended. The signed guaranty need not be effective before Closing,but must be
provided���ithin 30 days of the date this Agreement is signed, and in any case���ithin five days of ihe
Ctosing Date for the transfer.
4.� Franchise Amendments. The Company agrees to accept mutually-agreed upon Franchise
Ordinance amendments that may be adopted by the City and will accept amendments to the following
effect:
; 6
,� q� - l �' �
� 4.5.1 The Franchise Documents may be amended so that any future transferee is
required to assume all obligations under this Transfer Agreement, in addition to assuming all obligations
under the Franchise Documents.
4.5.2 The Franchise Documents may be amended as necessary to reflect the Transfer.
4.5.3 The Franchise Documents may be amended to reflect that the payments hereunder
be construed in the same manner as payments under the Settlement Agreement dated September 15, 1992
with respct to franchise fee payments under federal law.
4.6 Obli�ations not Francllise Fees. The Transfer Parties agree that not to initiate any
proceedings claiming that payments under this Areement constitute franchise fees subject to federal
franchise fee limitation it will not raise any claim or defense to the contrary, in any forum. Without
limiting the materiality of any other provision, is agreed that the City would not have approved the
Transfer without this provision.
Section 5. Effect of Failure to omplv«�ith this Agreement. The City may exercise any remedy that
is available to it at law or at equity, or under the Franchise Documents if the Transfer Parties fail to
comply with each and every provision of this Agreement, and in addition, without limiting the foregoing:
5.1 Failure to comniti with conditions that must be satisfied before the Closin Date. If the
Transfer Parties fail to comply with any requirement that must be completed before the Closing Date of
the transfer, then the City's consent shall be deemed of no effect and the request for transfer shall be
deemed timely denied. Further,without limiting the foregoing, in the event that a claim or defense is
raised at any time that would affect the enforceability of a material term of this Agreement,the Transfer
approval may be declared void. .
5.2 Failure to comnlv with conditions that are to be completed after the Closing Date• fa�t�;��i
representations and warrant�es . In addition to obtaining such damages or equitable relief as may be
appropriate, if the Transfer Parties fail to comply with any requirement that is to be completed after the
Closing Date of the transfer, or if the representations or warranties are false or misleading in any material
respect; the parties deem the same to be substantial and material violations of the Franchise and subject to
remedies therefor. The Transfer Parties each agree to indemnify and hold the City harmless against any
loss, claim, damage, liability or expense (including, without limitation,reasonable attorneys' fees)
incurred as a result of any representation or���arranty made by any of them herein��vhich proves to be
untrue or inaccurate in any respect.
Section 6. Sunset In the event the transfer does not close by June 30, 1997, or closes on terms that are
in any material respect different from the ternls disclosed to the City in writing, then any City approval of
the Transfer shall be deemed revoked, and the Transfer approval request deemed timely denied.
Section 7. A�proval of Transfer.
, 7
. ql� - ���
7.1 Approval Assuming that the following conditions are satisfied, the City shall be deemed
to have approved the Transfer as of the date it passes a Resolution authorizing the City to enter into this
contract: (a) the Transfer Parties must sign this Agreement within 15 days of passage of a resolution
authorizing the City to sign this Agreement; and (b)the Transfer Parties must satisfy the conditions set out
in Sections 4.3 - 4.4; and (c)the Transfer Parties must not have violated the conditions described in
Sections 5.1 or 6 . Otherwise,the City shall be deemed to have denied the Transfer as of the date of the
Resolution authorizing the City to sign this Agreement. The Transfer Parties hereby waive any and all
claims that they may have that any denial of the Transfer Application that results from the foregoing fails
to satisfy the deadlines established by applicable law including, vvithout limitation, claims based on,
arising out of, or relating to section 617(e) of the Cable Television Consumer Protection and Competition
Act of 1992, Pub. L. I�TO. 102-385, 106 Stat. 1460 (1992), as amended, and agree that they shall be deemed
to have agreed to an extension of the time to act on the Transfer Application as required to make any
denial effective.
7.2 �pnroval not Endorsement of Terms of Transfer• Subordination of Transfer Termc. The
City,by any approval of this Transfer, is not approving or endorsing the terms of any terms of any
document related to the Transfer; without limiting the foregoing, to the extent that there is a conflict
between(1)the terms and conditions of the Franchise Documents and this Agreement; and (2) any
-contract related to the Transfer, or any contract that may affect St. Paul as a result of the Transfer, the
Transfer Parties agree that the terms of the latter shall be expressly subordinate to the terms and conditions
of the former. '
Section 8. Miscellaneous Provisions.
8.1 Acceptance of Agreement. By accepting this Agreement, (i) the Transfer Parties accept, -
and agree to comply with, each provision hereof; (ii)the Transfer Parties acknowledge and accept the
City's right to consent to the Transfer pursuant to the Franchise Documents, and to enter into this
Agreement; and (iii) each of the Transfer Parties waive any claim that the Transfer was granted pursuant
to processes and procedures inconsistent��-ith Applicable Law and each agrees it will not raise any claim
or defense to the contrary.
8.2 Representations Warranties Material. Any representations aild wananties made in this
Agreement are material. It is a material breach of this Agreement if any representation or v,�arranty proves
to be untrue, inaccurate or incomplete in any material respects.
8.3 I�TO harm to renewa�rocess To minimize the harni that may otherwise occur�s a result of
City approval of this transaction near the end of the Franchise Tern�:
8.3.1 This Transfer has no effect on renewal rights Any rene���al rights of the City and
the Transfer Parties shall not be affected by this Transfer; the City may review the past performance and
. 8
. . � ln- I3��
qualifications of the Company, and the fut�re needs of the community, as if the Transfer had not occurred.
8.3.2 Condition on future transfers. The Transfer Parties agree that a condition of any
subsequent agreement that would result in a transfer between now and the scheduled end of the Franchise
term will contain the following condition: to the extent that any renewal ascertainment has occurred; a
renewal proposal has been filed; any rene�;�al hearing has been held; or any proceeding has been
conducted with respect to renewal; the transferee shall be bound thereby as if it had bee n present and
participated in the conduct of the same; transferee may not on any ground require a reconsideration of a
decision or any aspect of a decision on renewal if the Company would not have been able to do so if the
transfer had not occurred.
8.3.3 No inconsistent contract. The Transfer Parties will not enter into any contract that
would prevent or have the effect of preventing them from making a renewal proposal, or entering into a
renewal franchise, or othen�vise participating in any renewal proceeding.
8.4 Bindin�Agreement This Agreement shall bind and benefit the parties hereto and their
respective heirs,beneficiaries, administrators, executors, receivers,trustees, successors and assigns; the
representations and warranties contained herein survive the effective date hereof.
8.5 GoverninQ Law . Tlus Agreement shall be governed in all respects by the law of the State
of Minnesota.
8.6 Draftine . This Agreement is the product of common negotiations among the Parties and
shall not be construed against any Party on any grounds related to drafting, revision, review, or
recommendation by any agent or representative of any Party.
8.7 Time of the Essence . In determining whether a party has complied with this Agreement,
the parties agree that time is of the essence.
8.8 Counterparts . This document may be executed in multiple counterparts, and by the parties
hereto on separate counterparts, and each counterpart, when executed and delivered, shall constitute an
original agreement enforceable against all who signed it without production of, or accounting for, any
other counterpart, and all separate counterparts shall constitute the sanie agreement.
8.9 Captions . The captions and headings of this Agreement are for convenience ar,d reference
purposes only, and shall not affect in any�a�ay the meaning and interpretation of any provisions of this
Agreement.
' 9
� . , � " _ � ��
.� � I � � 3 9 �
Continental Cablevision aul, Inc. Date
Continental Cablevision,Inc. Date •
Continental Merger Corporation Date
US �WEST, Iiic Date
Director, Finance and Management Services Date
City of Saint Paul .
Mayor, City of Saint Paul Date
, 10
NOU-19-1996 12�26 . CONTINENTAL CRBLEUISION 617 742 0530 P.02
, Nev. 1'l: 1996'p 2: 1$PM ROBINS, KAPLAN, MILLEE�CIxESi 6 No, 0435 P. l4/2a
, . , , •
`�I�" l� I�
Contincatal Ca6lcvisiaa Saia�t Paul,Iac, Date '
%� .1�.._._'�'" �- �1 c. L l-s, c�1� }� U/ l3 � Q 1
Coati.ncntsl Cablevisio�Iac_ Date
Ccun***�P^�� Mt.tge�Corporation . Daie
US WEST,Tac � Date
D'uecoor.Fiaaace aad Msaagem�eat Savixs . D� .
City of Saiat Paul � '
Mayo=.City of Saiat Paul Date •
10
1 , iOTf� P.li
TOTf� p,ez
Nov. 13. ]996' 3: 06PM RGBINS, Y,r.PI.r.N, 1Ji�?�E�CIRESI 6 No, 0486 P. l3/l3
� Q
� ��� ��0
Continental Cablc'vision Saiat Paul,Inc. Dau '
Coatiamtal Cablevision,Inc. pate
� '�
� ` : ' ��..-�3 5`1;�
Coaflae�tal Merger Corporation Date
5?t r'e tcwy
� . :.-- �3 i%f.�
US WF,ST Inc Date
v-P -��►�
�
�
a. _ ��e�v. 2�F (1�],,�,
Director,Finance aad Management Services Date .
i of Saiat Pa
' ��1�✓( 5
5C
Mayor,City of Sai.nt P . Date • ,
� 10
� TOTi� P.11
From:Joseph Van Eaton Miller,Canheld Faz;201•185•1134 Voice:101d85-0600 To;Gerry Saap�man Page 2 of 10 Monday,October 28,1996 6:39;53 PM
��_� 3��
DRAFT
FOR SETTLEMFNT DICSi1SSIONS ONL.Y
TRANSFER AND FRANCHISE
1VIODIFICATION AGREEMENT
THE CITY OF ST. PAUL, MINNESOTA("CITY"), CONTINENTAL CABLEVISION OF ST. PAUL,
INC. ("COMPANY), CONTINENTAL CABLEVISION, INC. AND US WEST, INC. DO HEREBY
AGREE AS FOLLOWS:
RECITALS
WHEREAS:the Company is the holder of a franohise to provide oable servioe in the City of St. Paul,
subject to the provisions of that certain franchise agreement between the City and Company dated November
10, 1983,�s amended, inoluding by that oertain 5ettleme�Agreeme:rt dated September 15, 1992 (oolleotively,
the Franchise Documents"); and subject further to Ordinance No. 16661 (the"Cable Ordinance");and
WHEREAS: on May 3, 1996, Continerital Cableviaion, Ino., and U S WEST, Ino. submitted to the
City an FCC Fonn 394 Application for Consern requesting City consent to the change of cornrol of Company
from Continental Cablevision, Ino.to U S WEST, Ino. or a oertain wholly-owned subsidiary thereof
("USWEST")1; and
WHEREAS: while the control of Company will change,after the transaction,the Company will remain
the holder of the Franohise;
WHEREAS: under the Franchise Documents and the Cable Ordinance,the proposed transaction
(hereinafter referred to as the"Transfer")requires approval from the City, and the Company,USWEST and
Continental(collectively,the"Transfer Parties")desire that the City grant that approval; and
WHEREAS:the City has determined that, in light of the faots available to it, it would not be
appropriate to approve the tra,nsfer absent certain guarar�tees and agreements,binding upon the Transfer Parties,
inoluding oertain promises to ensure oomplianoe with the provisions of the Franohiae Doouments; and
WHEREAS:the City of St. Paul,by agreement,has until November 8, 1996 to approve or disapprove
of the proposed transfer;and
WHEREA5:the Company and USWEST agree that it is appropriate to make suoh guarantees and
agreements,subject to the City's approval of the transfer; and
' The City needs to know to whom it is transferring the franchise; Continental proposed any
subsidiary of U.S. West.
From:Joseph Van Eaton Miller,Can6eld Faz:20218�•1134 Voice:20118�-0600 To:Gerry SStra�man Page 3 of 10 Monday,October 28,1996 6:40,28 PM
`� � -� 3�t8�
DRAFT
FOR SETTLEMENT DICSUSSI4NS ONLY
NOW T�IEREFORE,IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL
CONSENTS SET FORTH HEREIN,THE CITY,COMPANY AND USWE5T AGREE AS
FOLLOWS:
Section 1. Affirmation of Franchise Obli�ations.
1.1 Accentance-Company hereby accepts, acknowledges, and agrees that, after the Transfer, it will
oontinue to be bound by all of the oommitmeYrts, duties and obligations,prese�t, oontinuing and future,that it
had prior to the Transfer under the Franchise Documer�ts(except to the extent the Franchise Documents are
amended pursuant to this Agreement)and under the Cable Ordinance.
1.2 Assumntion of ObliQations-Company agrees that neither the Transfer nor the City's approval
of the Transfer sha11 in any respeot relieve it of responsibility for past aots or omissions,known or unknown; and
Company hereby rea�rms that it shall be liable for and accepts the consequences of, any such acts and
omissions,known and unknown, inolud,ing liability for any and all previously aoorued but unfulfilled
obligations to the City under the Franchise Documents and applicable law,for all puiposes, including review of
past performanoe for purposea of determining whether its Franohise should be renewed..
1.3 Citv's Relianoe U�on Com�anies'Re�resentations-The Transfes�Partiea aoknowledge and
agree that:the City's consent to the Transfer is made in reliance upon the representations, documents, and
information provided by the Tra.nsfer Part,iea in oonneotson with the Transfer Applioation; eaoh of the Transfer
Parties is jointly and severally liable for the representations and wazraaties;and that the representations and
warranties include,without limitation the following:
1.3.1 The Transfer Parties represent and warrant that the transfer does not require the prior
approval of the landlord of the [Union Depot] or in any respeot affeot the lease or leases for the [Union Depot:
need official name] including any lease for any property in that building occupied by Cable Access St. Paul.
1.3.2 The Transfer Parties represerrt and warrant that they understand thax the franchise is
soheduled to ea•pire on May 11, 1999 unless renewed or eatended,and fiuther represe�t and warrant that the
Tra,nsfer is not based on any assumption that the franchise will be renewed or extended;and further represent
and warr�srt that,they take a11 finanoial risks assooiated with the non-renewal or non-extension of the franohise.
1.3.3 The Transfer Parties repreaerrt and warrant that they understand that, in approving this
transfer, St. Paul is not agreeing to approve any future transfer,whether required to comply with a duty to divest
or not,and the Transfer Parties assume all risks and consequences associated with any decision by the City to
deny a future request for a transfer.
1.3.4 The Tranafer Parties represent and warrant that the Transfer will not adversely affeot
the financial position of Company,or result in the Company having responsibility for any additional debt, in
any respeot. The parties fiuther represent and warrant that the Company will not in any reapeot reduoe oustomer
service in St. Paul, either by reducing the number of customer service representatives,technicians or technical
2
From:Joseph Van Eaton�iller,Can6eld Fax:20118�•1234 Yoice:202185-0600 To:Geny Sha�man Page 4 of 10 Monday,October 28,1996 6:41:OB PM
q� - �3��
DRAFT
FOR S .TT . .M .NT DI IONS ON ,Y
managers in St. Paul, or by oonsolidating the St. Paul oustomer aervioe operations with other oustomer aervioe
operations.
1.3.S The Transfer Parties represent and warrant that the Transfer will not result in any
inorease in subsoriber rates.
1.3.6 The Transfer Parties eaoh hereby repreaent and warrarit that: (a)the exeoution and
delivery of this Agreement do not contravene,result in a breach of, or constitute a default under,any comract or
agreement to which any of them is a party or by which any of them or any of their prope-rties may be bound(nor
would auoh exeoution and delivery oonstitute suoh a default with the passage of time or the giving of notioe or
both),and do not violate or contravene any law, order,decree,rule,regulation or restriction to which any of
them ia subjeot; (b)eaoh of the Transfer Parties ia duly organized, legally e�sting and in good standing under
the laws of the states of their respective organization;(c)this Agreement and the Merger A�reement constitute
the legal,valid and binding obligations of eaoh of the Transfer Parties, enforoeable in a000rdanoe with their
terms;and(d)the execution and delivery of, and performance under,this Agreement and the Merger aze within
eaoh of the Transfer Parties'respeotive power and authority without the joinder or oonsent of any other party
and have been duly authorized by all requisite action and are not in contravention of their respective charters,
bylaws, or other organizational dooumeirts, or of any indenture, agreement or undertalcing to whioh either of
them is a party or by which they aze bound.
Section 2. Prorrise of L7.S. West.
2.1 Com�lianoe with Franohise-USWEST agrees that,from and after the oonsummation of the
Transfer, it will not take any action inconsistent with the promises contained in the Franchise Documents or the
Cable Ordinanoe, and shall oomply and oause Company to fully oomply with all of the terms and oonditions set
forth in the Franchise Documerns,this Ag�reeme�t(when executed and delivered), and the Cable Ordinance. To
the exteirt that any provisions of any dooument assooiated with the Transfer, or any other oontraot oonfliots with
the Franchise Documents,this A�eement or applicable federal,state or local laws,the parties agree they are not
approved, and the Tranafer ia aubjeot to the oondition that suoh provisions, if any, aha11 be of no foroe or effeot
with respect to the Cable System serving the City.
Section 3. .No Waiver. By its consent to the Transfer and execution of this Agreement,the City waives
none of its ri;hts or proapeotive rights with respeot to the Company's oomplianoe with the terms, oonditions,
requirements and obligations set forth in the Franchise Documerns or the Cable Ordinance. Without limiting
the foregoing:
3.1 �ture Transfers. The Transfer Parties hereby agree that any future transfer of the Franchise
and/or the System, or transfer of oontrol of the Franohise and/or the System inoluding,without limitation,any
subsequent tra,nsfer to an affiliate of USWEST, are subject to the review and approval of the City in accordance
with applioable federal,state and looallaws inoluding,without limitation, 47 U.S.C. § 537, and the Franohise
Documents.
3
From:Joseph Van Eaton Miller,Can6eld Faz:202 785•1234 Voice;202•185-0600 To:Gerry 55haathman Page 5 of 10 Monday,October2B,1996 6:41;41 PM
-l lo — � .� � a
DRAFT
FOR S .TT � .M .NT DI .S 4 IONS ONL.Y
3.2 Oualifioations. Any oonse�given by the City to the Tranafer is made without prejudioe to, or
waiver of,the City's right to fully investigate and consider the Company's financial,technical, and legal
qualifioations and any other relevant oonsiderations during any future franohise renewal or transfer prooess.
3.3 Assi�or's Defaults At no time will the Transfer Parties ooYrtend, either direotly or indireotly
(including,without limitation,through the Company),that the City is bazred,by reason of the Transfer,from
oonsidering, or raising olaims based on, Company's defaults, its failure to provide reasonable servioe in light of
the community's needs,or its failure to comply with the terms and conditions of the Franchise Documents or
with Applicable Law, including,without limitation,any claim raised by the City against the Company for issues
previously setkled based upon a failure to oomply with a11 the terms of the Settlemeirt Agreement.
3.4 Com�an, 's� Com�lianoe. The City waives none of its rights with respeot to the Crrantee's
compliance with the tenns, conditions,requirements and obligations set forth in the Franchise Documents,
inoluding the City's right to oompel Grantee to oomply with the Franohise Doouments. The City's approval of
the Transfer shall in no way be deemed a represer�tation by the City that the Cnamee is in compliance with all of
its obligations under the Franohise Doouments.
Seotion 4. Conditions U�on Conserrt.
4.1 Institutional Network. Without limiting the provisions of Seotions 1-3,the City and Company
agree to jointly undertalce a review of the institutional network("I-Net"),for the purposes set forth in this
section. If the City concludes that the review shows that corrective ac�ion is required,the Company shall take
the required aotions to oorreot the defioienoies to the satisfaotion of the City, and must oomplete auoh aotions by
August 1 S, 1997.
4.1.1 The City and Company shall meet and attempt to agree on tes�ting techniques. Whether
or not there is an agreeme:rt on testing teohniquea,after meeting,the City and Company shall together test the
entire I-Net, and such portions of the subscriber network as it may be appropriate to test to fully understand and
evaluate the performanoe of the I-Net and to determine possible solutions to any defioienoies in I-Net
perFormance. The tests will be performed using any agreed testing techniques,but if there has been no
adreeme�st, or if the agreement was inoomplete,then tests sha.11 be perFormed as part of the jourt teating using
both techniques proposed by the City and techniques proposed by the Company(the ternn"techniques"sha11 be
i�trepreted broadly to inolude testing prooedures,test looations,what plant should be tested, and so on). The
parties sha11 meet to discuss testing procedures by December 1 S, 1996 and shall commence testing by January
1 S, 1997. The test program shall be designed so that testing is completed by February 1, 1997. Test results
and analysie of tests reaults shall be exohanged by Maroh 31, 1997,and eaoh party shall advise the other in what
respects it concludes that the I-Net passes or fails the tests. The City shall bear its own costs, and the Company
ahall beax all other oosts assooiated with the testing.
4.1.2 The Company sha11 provide the City with any information requested to enable the City
to develop its proposed testing procedures, or to carry out its responsibilities under this Section 4 includinc3,
without limitation,mapa showing the looation of the I-Net and subsoriber networks. 'The Company shall also
4
From:Joseph Van Eaton Miller,Can6eld Faz:202•185•1234 Voice;202d85-0600 To:Gerry S'hatl�man Page 6 of 10 Monday,October2B,1996 6:42:18 PM
�� �� ���
DRAFT
FOR S .TT , .M .NT DI _ 1SSiONS ONLY
shall provide aooess to all of its faoilities so that City may perform testing.
4.1.3 The tests shall be designed to determine whether:
4.1.3.1 the I-Net complies with each and every one of the technical performance
standards and other requirements set forth in the Franohise Doouments, inoluding Seotion XV of the Company's
application to the City; FCC standards and guidelines(those standards shall be applied as if the FCC standards
applied to an I-Net,and as if the standards were to be applied assuming that the point at which the signal
originates on the institutional network to the pouzt at whioh the signal is reoeived by other institutional network
locations is the appropriate path to measure for pwposes of determining whether the s�tandards have been
satisfied); and applioable industry sta.ndards given the nature of the servioes that are to be provided over the I-
Net;
4.1.3.2 the I-Net satisfies the Company's commitrnent in the Franchise Docume�ts with
respeot to the I-Net, inoluding its obligation to provide an I-Net that oan be reliably used to provide high-quality
bi-directional voice,video and data transmissions(including packet-switched data)among multiple users;that
oan support ea-pansion of servioes and transmiasion oapabilities, inoluding need for reliable higher data rates a.nd
cusrent and emerging technologies(�., Ethernet,high-speed Ethernet, ATM, FDDI and HDT�.
4.1.3.3 the Company has fully satisfied its obligations under the Franchise Documents
to build,extend,test and maintain the I-Net.
4.1.4 If the City determines that the I-Net: does not meet each and every one of the technical
standards set out in Seotion 4.1.3.1; is not designed or oannot reasonably be maintained or operated to satisfy
each and every one of the Company's commitments under the Franchise Documents,as further described in
Seotion 4.1.3.2; or that the Company has not built, extended,tested or mainta.ined the I-Net properly;then the
City may direct the Company to develop a corrective plan,that will result in an I-Net that satisfies the
Company's obligations under the Franohise Doouments and oan pass the tests desoribed in Seotion 4.1.3. The
corrective plan shall be submitted to the City within 30 days of the date the City requests the company to
provide it.
4.1.5 If the City finds that the oorreotive plan is adequate, it sha11 direot the oompany to oarry
it out, and the plan shall be implemented and corrections to the plant completed by August 1 S, 1997. If
appropriate,the Company may be required to rebuild,replace or upgrade the I-Net as part of the corrective
plan. If the City finds that the oorreotive plan is inadequate, or if the City finds that the plan ia adequate but the
corrections are not made by August 15, 1997,the Company sha11 be in default of its obligations under this
agreemerrt and under the Franohise Doouments. Any action taken purauant to this seotion shall be oonsidered a
correction of a past perforniance obligation,and sha11 not result in any additional charges to subscribers.
4.2 ��tem Capacitv. The Company shall activate and file a certificate that it has activated SSO
MHz oapaoity on the System by January 1, 1997. Company aoknowledges its obligation under Franohise
5
From:Joseph Van Eaton Miller,Canfield Faz:202d8�•1234 Voice:202185-0600 To;Gerry Sha�man Page 1 of 10 Monday,October28,1996 6;43:01 PM
�� � � ���
DRAFT
FOR SETTL.EMFNT DIGSLTSSIONS ONLY
Artiole III, 5eotion 1(e)that if the System is upgraded to seventy-eight(78)ohannela or more, Company will
add one(1)channel, in addition to the six(6)channels already required by that section,upon demand by City,
for publio aooess,as provided therein.
4.3 Reimbursemeirt. The Company agrees to pay the City$30,000 in oonjunotion with City's
review of the change of cornrol from Continental to USWEST. The paymerrt shall be due 10 days after the
passage of a City ordinanoe that provides for approval of the Transfer.
4.4 Parent Guarantv. Company agrees to provide a parent company guaranty from U S WEST
aooeptable to City assuring oomplianoe with the Company with a11 the obligations of the Franohise Doouments,
including as amended. The signed guaranty must be provided within 10 days of the date the Transfer closes.
4.5 FranclLise Extension.
4.5.1 City and Company agree to amend the Franchise by City Ordinance and Company
aooeptanoe:
4.5.1.1 Artiole I, Seotion 8 ahall be amended to provide that the City may
extend the Franchise at its option so that the Franchise expires on May 11, 2002.
4.5.1.2 Article III, Section 6, s�ha11 be amended so that during any extension
tesm(May 11, 1999 -May 11, 2002)the Company shall be required to provide the City or its designee an
amount equal to $1 per month,per subsoriber for publio, eduoational and governmental use(inoluding I-Net
use)of the cable system. The first payment is due May 15, 1999, and the number of subscribers shall be the
number of subaoribers on Apri130. Subsequent paymerrts shall be made on the 15th day of every auooeeding
month,with the number of subscribers based upon the number of subscribers on the last day of the preceding
mo�th. The last payme�for the ea-tension term shall be due on April 15, 2002. The City may allow the
Company to offset any amounts it owes under this paragraph,up to an amowrt specified by the City,for
paymeYrts the Company makea puraua�to an enforoeable agreeme:rt with the entity or entities reaponsible for
managing PEG channels or other entity approved by the City.
4.5.1.3 Article III, Section 6 shall be further amended to reflect that, in addition
to the foregoing, the Company shall be required to provide the City or its designated entity grants for oapital
equipment and facilities totaling one hundred thousand($100,000)on May 11, 1999, and one hundred
thousand dollars($100,000)on May 11, 2001.
4.5.1.4 Article III, Section 6, sha11 be amended to reflect that,all of Company's
obligations with respeot to faoilities a.nd equipme:rt sha11 oontinue throu;h and inoluding the expiration date of
any extension term. Without limiting the foregoing,the Company shall provide access studio and related access
faoility spaoe at or equivale:rt to the spaoe and terms(other than any time term nuuiing aga.inst the City or the
designee for the access operations)being provided by the Company as of August 1, 1996. The Franchise shall
fiuther be amended so that, if the apaoe now being used by Cable Aooess of St. Paul is no longer available for
6
From:Joseph Van Eaton Miller,Can6eld Fa�c:202•185•1134 Voice:202•185-0600 To;Gerry Shatl�man Page B of 10 Monday,October28,1996 6;43:45 PM
�� - � �`��
DRAFT
FOR SETTL.EMFNT DIGSLTSSIONS ONLY
its use or aooessible, Company sha11 bear a11 ea-penses assooiated with moving the aooess faoility to a differerrt
location(including modifications to the new facilities and extension of plant to it)acceptable to the City,and
shall do so at a time and in a manner so that there is no urterruption of aooess servioes.
4.5.1.5 The Franohiae Doouments shall be amended so that any future
Transferee is required to assume all obligations under this Transfer A�reemerrt, in addition to assw�ning all
obligations under the Franohise Doouments.
4.5.1.6 [We are checking to detennine whether there are any other provisions
that need to be amended so that any other obligation or duty of the Company that would otherwise ea-pire as of
the current scheduled date for the extension extends throughout any extension term.]
4.6 ��ations not Franchise Fees. The Transfer Parties agree that none of the costs it must incur,
or payme�rts that it must make under this Transfer Agreement oonstitute franohise fees, and instead fa11 within
one or more of the exceptions set out in 47 U.S.C. §54_. ,and each of the Transfer Paskies further agrees it will
not raise any olaim or defense to the oontrary, in any forum. Without limiting the materiality of any other
provision, is agreed that the City would not have approved the Transfer without this provision.
Section S. Effect of Failure to Complv with this A�. The City may exercise any remedy that it
available to it at law or at equity, or under the Franohise Dooumeats if the Trans.fer Partiea fail to oomply with
each and every provision of this Agreement, and in addition,without limiting the foregoing:
5.1 Failure to oom�v with oonditions�reoedent. If the Tranafer Parties fail to oomply with any
requirement that must be completed before the Closing Date of the Tra.nsfer, then the request for Tra.nsfer shall
be deemed timely denied;
5.2 Failure to oom�lv with oonditions subsequent. If the Transf'er Parties fail to oomply with any
requirement that is to be completed after the Closing Date of the Transfer,the parties agree that the City may
deolaxe the Transfer void; or may refuse to approve any additional transfer unless and until any fa.ilure to
comply has been corrected;or may declare the Franchise and any renewal rights that may have been invoked
forfeited,and terminate the Franohise. In no everrt sha11 the Franohise term be eatended by the City unless the
Transfer Parties are in full compliance with each and every provision hereof.
5.3 Failure of renresentations and warranties. If any of the representations or warranties is false or
misleading,the City may, at its option,revoke any approval of the Transfer(which denial the parties agree sha11
be deemed timely), or may deolare the Transfer void; or may refuse to approve any additional transfer unless
and wYtil any failure to comply has been corrected;or may declaze the Franchise and any renewal rights that
may have been invoked forfeited,and terminate the Franohise. In no eve�ahall the Franohise term be extended
by the City unless the Tra.nsfer Parties represerrtations and warranties are true and accurate in every respect.
The Transfer Partiea eaoh agree to indemnify and hold the City harmless against any loss, olaim, damage,
liability or expense(including,without limitation,reasonable attorneys'fees)incurred as a result of any
representation or warranty made by any of them herein whioh proves to be untrue or inaoourate in any respeot.
7
From:JosephVan�aton Miller,Can6eld faz:202•185•1234 Voice;2021&�-0600 To:Gerry S'�athman P�qe 9 of 10 Monday,October2B,1996 6:44:16 PM
��(�- I�q �'
DRAFT
FOR S .TT . .M .NT DI . 4iONS ONL.Y
Section 6. �j�g� In the event the transfer does not close by December 31, 1996, or closes on tenns that
are in any material respeot different from the terms disolosed to the City in writing,then any City oonsent to the
Transf�r shall be deemed revoked, and the Tra.nsfer timely denied.
Section 7. Waiver of Claims. The Transfer Parties hereby waive any and a11 claims that they may have
that any denial of the Transfer Applioation that results from Seotions 1-6 fa.ils to satisfy the deadlinea
established by applicable law including,without limitation,claims based on,arising out of,or relating to section
617(e)ofthe Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106
Stat. 1460 (1992), as amended, and agree that they shall be deemed to have agreed to an ea�tension of the time
to act on the Tra,nsfer Application as required to make any denial effective.
Section 8. Miscellaneous Provisions.
8.1 Obli�ations of Transfer Parties. The obligations of the Transfer Parties under Section
3 are oontingent upon City passage of an ordinanae under whioh the Transfer would be deemed approved, on or
before November 8, 1996.
8.2 Accentance of Aareement-By accepting this Agreement, (i)the Transfer Parties accept, and
agree to oomply with, eaoh provision hereof, subjeot to Seotion 8.1; (ii)the Transfer Parties aoknowledge and
accept the City's right to consent to the Transfer pursuant to the Franchise Docume�ts,and to enter into this
A.greement; (iii)each of the Transfer Parties agrees that it will not, directly or indirectly,oppose intervention by
the City in any prooeeding afFeoting the System; and(iv)eaoh of the Transfer Patties agrees that the Transfer
was granted pursuant to processes and procedures consistent with Applicable Law,and that it will not raise, and
hereby eapressly waive, a11 olaims to the ooirtrary.
8.3 Re�rese�a,tions Warranties Material. Any repreaerrtations and warranties made in this
A�reement are material. It is a material breach of this Agreement if any representation or warranty proves to be
untrue, inaoourate or inoomplete in any material respeots.
8.4 Rate Re�ulation. Notwithstanding the oonsummation of the Transfer,the Company shall
remain obligated,to the same exte�nt as if the Transfer had not occurred,to provide documents and other
information requested by the City in a timely manner so that the City may oomplete any review of the
Company's pending rate filings. Notwithstanding the Tra.nsfer,refunds owed, if any, shall be implemented in
accordance with FCC rules,47 C.F.R. § 76.942;and rate reductions that would otherwise accrue are not
waived as a reault of this Transfer.
8.5 Bindin�A e,�r ement This Agreeme�nt shall bind and bcnefit the paxties hereto and their
respective heirs,beneficiaries,administrators,executors,receivers,trustees,successors and assi�ns, and the
promises and obligations herein sha11 ausvive the effeotive date hereof.
8.6 Governin�aw-This Agreemeirt shall be governed in all respects by the law of the State of
8
From;Joseph Van Ea�on Miller,Cauu�eld Faz:202•1&�•1234 Voice;102•18�-0600 To:Gerry S�a�man Page 10 of 10 Monday,Oc�ober28,1996 6;4�:04 PM
�( (� - 13 �P'
DRAFT
FOR SETTLEMENT DICSUSSIONS ONLY
Minneaota.
8.7 Drafting This Agreement is the produot of oommon negotiations among the Parties and ahall
not be construed against any Party on any grounds related to drafting,revision,review, or recommendation by
any ageirt or representative of any Party.
8.8 Time of the Easenoe In determining whether a party has oomplied with this Agreemerrt,the
parties agree that time is of the essence.
8.9 Couister�arts Thia dooument may be exeouted in multiple oounterparts, and by the parties
hereto on sepazate counte�rparts,and each counterpaR,when executed and delivered,shall constitute an original
agreeme�enforoeable aga.inst all who si�ned it without produotion of, or a000unting for, any other oounterpart,
and all sepazate counteiparts shall constitute the same agreement.
8.10 ��-The captions and headings of this Agreement are for convenience and reference
purposes only, and aha11 not affeot in any way the meaning and interpretation of any provisions of this
Agreement.
[signature blocks]
9
{
' t `" � �� - 13��
TRANSFER AND FRANCHISE . �
MODIFICATION AGREEMENT
THE CITY OF ST. PAUL, MINNESOTA("CITY") , CONTINENTAL CABLEVISION OF ST. PAUL,
INC. ("COMPAN�, CONTINENTAL CABLEVISION, INC. AND US WEST,INC. DO HEREBY
AGREE AS OF THE 13TH DAY OF NOVEMBER, 1996,AS FOLLOWS:
RECITALS .
WHEREAS: the Company is the holder of a franchise to provide cable service in the City of St.
Paut, subject to the provisions of that certain franchise agreement between the City and Company dated
November 10, 1983 (and the application incorporated therein), as amended, including by that certain
Settlement Agreement dated September 15, 1992 (collectively,the Franchise Docuinents"); and subject
further to Ordinance No. 16661 (the"Cable Ordinance"); and
WHEREAS: on May 3, 1996, Continental Cablevision, Inc., and U S WEST, Inc. submitted to
the City an FCC Form 394 Application for Consent requesting City consent to the change of control of
Company from Continental Cablevision, Inc. to U S WEST, Inc. or its wholly-owned subsidiary
Continental Merger Corporation(references to USWEST would refer to both companies if Continental
Merger Corporation becomes the entity or one of the entities controlling the Company, directly or
indirectly; otherwise,the term USWEST refers to US West, Inc.); and
WHEREAS: pursuant to the requests of the City, Company has provided supplemental A
information in support of the Form 394 Application for Consent, including representations that the
Company does not expect the Transfer to have any effect on subscriber rates; and
WHEREAS: while the control of Company will change, after the transaction,the Company will
remain the holder of the Franchise;
VVHEREAS: under the Franchise Documents and the Cable Ordinance,the proposed transaction
(hereinafter referred to as the"Transfer")requires approval from the City, and the Company, USWEST,
and Continental (collectively, the"Transfer Parties") desire that the City grant that approval; and
WHEREAS: the City has determined that, in light of the facts available to it, it would not be
appropriate to approve the transfer absent certain guarantees and agreements, binding upon the Transfer
Parties, including certain promises to ensure compliance with the provisions of the Franchise Documents;
and
WHEREAS: the City of St. Paul,by agreement, has through and including November 13, 1996 to
approve or disapprove of the proposed transfer; and
� . .� , ?� r�a ��
WHEREAS: the Transfer Parties agree that it is appropriate to make such guarantees and "
agreements, subject to the City's approval of the transfer; and
NOW THEREFORE,IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL
CONSENTS SET FORTH HEREIN,THE CITY AND THE TRANSFER PARTIES AGREE AS
FOLLOWS:
Section 1. Affirmation of Franchise Obli at,g ions.
1.1 Acceptance - Company hereby accepts, acknowledges, and agrees that, after the Transfer, it
will continue to be bound by all of the commitments, duties and obligations,present, continuing and
future,that it had prior to the Transfer under the Franchise Documents (except to the extent the Franchise
Documents are amended pursuant to this Agreement) and under the Cable Ordinance.
1.2 Assum�tion of Obligations- Company agrees that neither the Transfer nor the City's
approval of the Transfer shall in any respect relieve it of responsibility for past acts or omissions, known
or unknown; and Company hereby reaffirms that it shall be liable for and accepts the consequences of, any
such acts and omissions, known and unknown, including liability for any and all previously accrued but
unfulfilled obligations to the City under the Franchise Documents and applicable law to the same extent as
if the Transfer had not taken place, for all purposes, including review of past performance for purposes of
determining whether its Franchise should be renewed.. �
1.3 Citv's Reliance Upon Companies' Representations -The Transfer Parties acknowledge and
agree that: the City's consent to the Transfer is made in reliance upon the representations, documents, and
inforxnation provided by the Transfer Parties in connection with the Transfer Application; each of the -
Transfer Parties is jointly and severally liable for the representations and warranties; and that the
representations and warranties include, without limitation the following:
1.3.1 The Transfer Parties represent and warrant that the transfer does not require the
prior approval of the landlords of the building known as the "Union Depot"or in any respect affect the
lease or leases for the facility including any lease for any property in that building occupied by Cable
Access St. Paul.
1.3.2 The Transfer Parties represent and warrant that they understand that the franchise
is scheduled to expire on May 11, 1999 unless renewed or extended, and further represent and warrant that
the transfer is not based on any assumption that the franchise will be renewed or extended; and further
represent and warrant that, they take all financial risks associated with the non-renewal or non-extension
of the franchise.
1.3.3 The Transfer Parties represent and warrant that they understand that, in approving
this transfer, St. Paul is not agreeing to approve any future transfer, and the Transfer Parties assume all
2
� � � � . ���� - j3 9'�
risks and consequences associated with any, future transfer proceedings. . �
1.3.4 The Transfer Parties represent and warrant that the Transfer will not adversely
affect the financial position of Company,or result in the System serving the City directly or indirectly
having responsibility for any additional debt. The parties further represent and warrant that the Company
will not in any respect reduce the quality of customer service in St. Paul, including by reducing the
number of customer service representatives,technicians or technical managers serving St. Paul.
1.3.5 The Transfer Parties represent and warrant that the Transfer will not result in any
increase in subscriber rates.
1.3.6 The Transfer Parties each hereby represent and warrant that: (a)the execution and
delivery of this Agreement do not contravene,result in a breach of, or constitute a default under, any
contract or agreement to which any of them is a party or by which any of them or any of their properties
may be bound(nor would such execution and delivery constitute such a default with the passage of time
or the giving of notice or both), and to the best of their knowledge do not violate or contravene any law,
order, decree, rule,regulation or restriction to which any of them is subject; (b)each of the Transfer
Parties is duly organized, legally existing and in good standing under the laws of the states of their
respective organization; (c)this Agreement constitutes a legal, valid a.nd binding obligation of each of the
Transfer Parties; and(d)the execution and delivery of, and performance under,this Agreement and the
Merger are within each of the Transfer Parties' respective power and authority without the joinder or
consent of any other party and have been duly authorized by all requisite action and are not in
contravention of their respective charters,bylaws, or other organizational documents, or of any indenture,
agreement or undertaking to which either of them is a party or by which they are bound.
Section 2. Promise of USWEST. -
2.1 Com�liance with Franchise. USWEST agrees that, from and after the consummation of
the Transfer, it will not take any action that would be a violation of this Agreement(when executed and
delivered),the Franchise Documents or the Cable Ordinance if the action had been taken by the Company
instead of USWEST. USWEST shall comply and cause Company to fully comply with all of the terms
and conditions set forth in the Franchise Documents,this Agreement(when executed and delivered), and
the Cable Ordinance.
Section 3. No Waiver. By its consent to the Transfer and execution of this Agreement, the City
waives none of its rights or prospective rights with respect to the Company's compliance with the terms,
conditions, requirements and obligations set forth in the Franchise Documents or the Cable Ordinance.
Without limiting the foregoing:
3.1 Future Transfers. The Transfer Parties hereby agree that any future transfer of the Franchise
andlor the System, or transfer of control of the Franchise and/or the System, are subject to the review and
approval of the City in accordance with applicable federal, state and local laws including, without
3
� - � , �;�� - i:��1�
limitation, 47 U.S.C. § 537, and the Franchise Documents. � �
3.2 Qualifications. Any consent given by the City to the Transfer is made without prejudice to,
or waiver of, any right of the City to fully investigate and consider the Company's financial, technical, and
legal qualifications and any other lawful considerations during any future franchise renewal or transfer
process.
33 Assignor's Defaults At no time will the Transfer Parties contend, either directly or
indirectly(including, without limitation, through the Company), that the City is barred, by reason of the
Transfer, from considering, or raising claims based on, Company's defaults, or its failure to comply with
the terms and conditions of the Franchise Documents or with Applicable Law, including,without
limitation, any claim raised by the City against the Company for issues previously settled based upon a
failure to comply with all the terms of the Settlement Agreement.
3.4 Comnanv's Compliance. The City's approval of the Transfer shall in no way be deemed a
representation by the City that the Grantee is in compliance with all of its obligations under the Franchise
Documents.
Section 4. Conditions Upon Consent.
4.1 Instiiutional Network. Without limiting the provisions of Sections 1-3, the City
and Company agree to jointly undertake a review of the institutional network("I-Net"), for the purposes
set forth in this section. The Company shall take the actions required to correct the deficiencies to the
reasonable satisfaction of the City,pursuant to a corrective plan as set forth below, and, unless otherwise
approved by the City, must complete such actions by August 15, 1997.
4.1.1 The City and Company shall meet and attempt to agree on testing
issues. It is agreed that, tests shall be performed to address all the matters described in Section 4.1.3. It
is agreed that, test measurements shall be made in accordance with the NCTA Recommended Practices
for Measurements on Cable Television Systems, 2d Ed. November 1989 (as revised), to the extent that
document sets out a measurement procedure for a particular parameter (the measurement procedures
include, without limitations procedures for operating testing equipment). If the NCTA Recommended
Practices do not set out procedures for measuring a particular parameter or parameters the parties will
attempt to agree upon a measurement procedure. Whether or not there is an agreement on all testing
issues, after meeting, the City and Company shall together test the entire I-Net, and such portions of
the subscriber network as it may be necessary to test to fully understand and evaluate the performance
of the I-Net. The tests will be performed using any agreed testing techniques, but if there has been no
agreement, or if the agreement was incomplete, then tests shall be performed as part of the joint testing
using both techniques proposed by the City and techniques proposed by the Company (the term
"techniques" shall be intrepreted broadly to include testing procedures, test locations, what plant should
be tested, and so on). The parties shall meet to discuss testing procedures by December 15, 1996 and
4
: . 9��- i�9�
shall commence testing by January 15, 1997. The test program shall be designed so that testing is�
completed by February 1, 1997. Test results and analysis of test results shall be exchanged by
February 28, 1997. Each party shall promptly advise the other as to its conclusions with respect to
those tests. The City shall bear its own costs, and the Company shall bear its own costs associated with
the testing.
4.1.2 The Company shall provide the City with any information requested to
enable the City to develop its proposed testing procedures, or to carry out its responsibilities under tkus
Section 4 including, without limitation,maps showing the location of the I-Net and subscriber networks.
The Company shall also shall provide access to its facilities so that City may perform the testing.
4.1.3 The tests shall be designed to determine whether:
' 4.1.3.1 the I-Net complies with:
4.1.3.1.1 the requirements set forth in the Franchise Documents,
including the technical performance standards under the
Settlement Agreement,which requires that the I-Net at a11
times meets or exceeds the technical performance standards
in Section XV of the Company's application, as amended;
4.1.3.1.2 the FCC standards and guidelines (those standards shall be
applied as if the FCC standards applied to an I-Net, and as if
the standards were to be applied assuming that the point at
which the signal originates on the institutional network to the
point at which the signal is received by other institutional '
network locations is the appropriate path to measure for
purposes of determining whether the standards have been
satisfied); and
4.1.3.1.3 applicable industry standards given the nature of the services
that are to be provided over the I-Net consistent with the
Franchise Documents.
4.1.3.2 the I-Net satisfies the Company's commitment in the Franchise Documents
with respect to the I-Net, including its obligation to provide an I-Net that can be reliably used to provide
high-quality bi-directional voice, video and data transmissions (including packet-switched data) among
multiple users; that can support expansion of services and transmission capabilities as contemplated by the
Franchise Documents, including need for reliable higher data rates and current and emerging technologies.
4.1.3.3 the Company has complied with its obligations under the Franchise
5
• � . y6 - �3�g
Documents to build, extend,test and maintain the I-Net. _ �
4.1.4 By March 15, 1997,the Company shall submit a corrective plan to ensure
that the I-Net complies with the Company's obligations under the Franchise Documents and tests
hereunder. If appropriate,the corrective plan may require the Company to rebuild,replace or upgrade the
I-Net. The City shall conduct a hearing of the City Council to determine the adequacy of the corrective
plan. Such hearing shall be concluded within 30 days of submission of the plan, and the City shall make a
determination as to the adequacy of the plan within 30 days after the hearing.
4.1.5 After the City Council hearing, if the City finds that the corrective plan is
adequate, it shall direct the company to carry it out, and the plan shall be implemented and corrections to
the plant completed by August 15, 1997. If the City finds that the corrective plan is inadequate, or if
the City finds that the plan is adequate but the corrections are not made by August 15, 1997,the Company
shall be in default of its obligations under this agreement and under the Franchise Documents. However,
before implementing any remedies based upon the inadequacy of the plan due March 15,the City shall
provide the company 10 business days to revise the plan to make it adequate. Costs associated with
implementing the corrective plan shall be borne by the Company. In addition, Company agrees to pay the
City $100,000 no later than January 15, 1997, for the City's development of the I-Net Any action taken
pursuant to this section shall be considered a resolution of an outstanding obligation. Nothing in this
Section prevents the parties from agreeing on a corrective plan.
4.2 �stem Capacitv. The Company shall activate and file a certificate that it has activated 550
MHz capacity on the System by January 1, 1997. Company acknowledges its obligation under Franchise
Article III, Section 1(e)that if the System is upgraded to seventy-eight(78) channels or more, Company
will add one (1) channel, in addition to the six(6)channels already required by that section, upon demand
by City, for public access, as provided therein. °
4.3 Reimbursement. The Company agrees to pay the City $30,000 in conjunction with City's
review of the change of control from Continental to USWEST. The payment shall be due November 30,
1996, and in any case within five days of the Closing Date for the transfer.
4.4 Parent Guarantv. Company agrees to provide a parent company guaranty from U S WEST
acceptable to City assuring compliance by the Company with all the obligations of the Franchise
Documents, including as amended. The signed guaranty need not be effective before Closing,but must be
provided within 30 days of the date this Agreement is signed, and in any case within five days of the
Closing Date for the transfer.
4.5 Franchise Amendments. The Company agrees to accept mutually-agreed upon Franchise
Ordinance amendments that may be adopted by the City and will accept amendments to the following
effect:
6
3�8"
�, � . �� �/
4.5.1 The Franchise Doc�aments may be amended so that any future transferee is �
required to assume all obligations under this Transfer Agreement, in addition to assuming all obligations
under the Franchise Documents.
4.5.2 The Franchise Documents may be amended as necessary to reflect the Transfer.
4.5.3 The Franchise Documents may be amended to reflect that the payments hereunder
be construed in the same manner as payments under the Settlement Agreement dated September 15, 1992
with respct to franchise fee payments under federal law.
4.6 Obligations not Franchise Fees. The Transfer Parties agree that not to initiate any
proceedings claiming that payments under this Areement constitute franchise fees subject to federal
franchise fee limitation it will not raise any claim or defense to the contrary, in any forum. Without
limiting the materiality of any other provision, is agreed that the City would not have approved the
Transfer without this provision.
Section 5. Effect of Failure to Com�lv with this A�reement. The City may exercise any remedy that
is available to it at law or at equity, or under the Franchise Documents if the Transfer Parties fail to
comply with each and every provision of this Agreement, and in addition, without limiting the foregoing:
5.1 Failure to complv with conditions that must be satisfied before the Closing; Date. If the
Transfer Parties fail to comply with any requirement that must be completed before the Closing Date of
the transfer, then the City's consent shall be deemed of no effect and the request for transfer shall be
deemed timely denied. Further,without limiting the foregoing, in the event that a claim or defense is
raised at any time that would affect the enforceability of a material term of this Agreement, the Transfer
approval may be declared void. '
5.2 Failure to complv with conditions that are to be com�leted after the Closing Date• failure of
representations and warranties.. In addition to obtaining such damages or equitable relief as may be
appropriate, if the Transfer Parties fail to comply with any requirement that is to be completed after the
Closing Date of the transfer, or if the representations or warranties are false or misleading in any material
respect, the parties deem the same to be substantial and material violations of the Franchise and subject to
remedies therefor. The Transfer Parties each agree to indemnify and hold the City harmless against any
loss, claim, damage, liability or expense (including, without limitation,reasonable attorneys' fees)
incurred as a result of any representation or warranty made by any of them herein which proves to be
untrue or inaccurate in any respect.
Section 6. Sunset In the event the transfer does not close by June 30, 1997, or closes on terms that are
in any material respect different from the terms disclosed to the City in writing, then any City approval of
the Transfer shall be deemed revoked, and the Transfer approval request deemed timely denied.
Section 7. Approval of Transfer.
7
�� - . �jG - i:3��"
7.1 Approval Assuming that the following conditions are satisfied,the City shall be deemed
to have approved the Transfer as of the date it passes a Resolution authorizing the City to enter into this
contract: (a) the Transfer Parties must sign this Agreement within 15 days of passage of a resolution
authorizing the City to sign this Agreement; and(b)the Transfer Parties must satisfy the conditions set out
in Sections 4.3 -4.4; and(c)the Transfer Parties must not have violated the conditions described in
Sections 5.1 or 6 . Otherwise,the City sha11 be deemed to have denied the Transfer as of the date of the
Resolution authorizing the City to sign this Agreement. The Transfer Parties hereby waive any and all
claims that they may have that any denial of the Transfer Application that results from the foregoing fails
to satisfy the deadlines established by applicable law including,without limitation, claims based on,
arising out of, or relating to section 617(e) of the Cable Television Consumer Protection and Competition
Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992), as amended, and agree that they shall be deemed
to have agreed to an extension of the time to act on the Transfer Application as required to make any
denial effective.
7.2 A�proval not Endorsement of Terms of Transfer: Subordination of Transfer Terms. The
City,by any approval of this Transfer, is not approving or endorsing the terms of any terms of any
document related to the Transfer; without limiting the foregoing, to the extent that there is a conflict
between(1)the terms and conditions of the Franchise Documents and this Agreement; and(2) any
contract related to the Transfer, or any contract that may affect St. Paul as a result of the Transfer, the
Transfer Parties agree that the terms of the latter shall be expressly subordinate to the terms and conditions
of the former. �
Section 8. Miscellaneous Provisions.
8.1 Acceptance of A,�reement. By accepting this Agreement, (i)the Transfer Parties accept, �
and agree to comply with, each provision hereof; (ii)the Transfer Parties acknowledge and accept the
City's right to consent to the Transfer pursuant to the Franchise Documents, and to enter into this
Agreement; and(iii) each of the Transfer Parties waive any claim that the Transfer was granted pursuant
to processes and procedures inconsistent with Applicable Law and each agrees it will not raise any claim
or defense to the contrary.
8.2 Representations Warranties Material. Any representations and warranties made in this
Agreement aze material. It is a material breach of this Agreement if any representation or warranty proves
to be untrue, inaccurate or incomplete in any material respects.
8.3 No harm to renewal�rocess. To minimize the harm that may otherwise occur as a result of
City approval of this transaction near the end of the Franchise Term:
8.3.1 This Transfer has no effect on renewal rights• Any renewal rights of the City and
the Transfer Parties shall not be affected by this Transfer; the City may review the past performance and
8
. �. , a� ._ i�9g
qualifications of the Company, and the fut�re needs of the community, as if the Transfer had not occurred.
8.3.2 Condition on future transfers. The Transfer Parties agree that a condition of any
subsequent agreement that would result in a transfer between now and the scheduled end of the Franchise
term will contain the following condition: to the extent that any renewal ascertainment has occurred; a
renewal proposal has been filed; any renewal hearing has been held; or any proceeding has been
conducted with respect to renewal; the transferee shall be bound thereby as if it had bee n present and
participated in the conduct of the same;transferee may not on any ground require a reconsideration of a
decision or any aspect of a decision on renewal if the Company would not have been able to do so if the
transfer had not occurred.
8.3.3 No inconsistent contract. The Transfer Parties will not enter into any contract that
would prevent or have the effect of preventing them from making a renewal proposal, or entering into a
rene�val franchise, or otherwise participating in any renewal proceeding.
8.4 Bindin�Agreement This Agreement shall bind and benefit the parties hereto and their
respective heirs, beneficiaries, administrators, executors,receivers,trustees, successors and assigns; the
representa.tions and warranties contained herein survive the effective date hereof.
8.5 Governing Law . This Agreement shall be governed in all respects by the law of the State
of Minnesota.
8.6 Draftin� . This Agreement is the product of common negotiations among the Parties and
shall not be construed against any Party on any grounds related to drafting,revision, review, or
recommendation by any agent or representative of any Party.
8.7 Time of the Essence . In determining whether a party has complied with this Agreement,
the parties agree that time is of the essence.
8.8 Counter�arts . This document may be executed in multiple counterparts, and by the parties
hereto on separate counterparts, and each counterpart, when executed and delivered, shall constitute an
original agreement enforceable against all who signed it without production of, or accounting for, any
other counterpart, and all separate counterparts shall constitute the same agreement.
8.9 Captions . The captions and headings of this Agreement are for convenience and reference
purposes only, and shall not affect in any way the meaning and interpretation of any provisions of this
Agreement.
9
.F � � °���- ��..�9�'
.� .� I � � 3 9 �
Continental Cablevision aul, Inc. Date
Continental Cablevision, Inc. Date •
Continental Merger Corporation Date
US WEST, Inc Date
Director, Finance and Management Services Date
City of Saint Paul '
Mayor, CiTy of Saint Paul Date
10
NOW-19-1996 12�26 CONTINENTAL CAHLEUISION 61? 742 0530 P.02
~ hn�.' 12 1996'° 2:18P�t xOBINS. KAPLAN, �fILLEB&CIRESI 6 No, 0435 P. l4/24
- ' - • � 13qg
� � ' �'(-
co�c��s�r�,�, nu� .
/Z ,�..-.--�- �. f�.�Cs, �S'J }� u� �3 s t
Co�atia�ental Ceblevis7on,Iaa Date
��C�Po�atian . Ds�
US WE3T,Iac � Date
Di�v000z.Fiaaa�ce amd M�aa�Seevioes , D�s �
City a�Sai�Panl , ;
Mayor,�'of Sa�at Pwi D�s • :
lo
TOTFlL P.1i .
TOTAL P.02
' Nov, 13. 1996' 3: 06PM ROBINS, KAPI.AN, MII,I,ER&CIRESI 6 No, 0486 P, 13/13
a �, _ �
� �'��13q8�
Continental Cabl�visioa Saint Paul,Inc. Date �
Coatinmtai Cablevision,Tnc. Date
��� �
l /3 �9�
Coat�a�la1 Merger Corporation Date
S et,v'e�furY
� � �3 y���
US T Inc Date
V— —�aw
�
,
% � _ ��. 2�, f���,
� n�,F��a��t s�� �� .
� ofs�P
?��IY✓� �
SC
Mayor,City of Saiat P , Date • ,
' 10
� TOTF� P.i i
- ..�. - --- .�_--
'� �� 13. i996 3: 02PM ROBINS, KAPI,AN, Mii,i,ER&GIRESI 6 No. 0486 :. �/13
�: �.
. . . �� �"��`��
CORPORATE GUARANTY
OF
U.S.WEST,INC.
Tltis Corporate C�aranry("Guaranty")is execute�as of N�-�- � � , 1996, by U.S.
WEST, Inc. ("Guaratrtor"), for the benefit of the municipality of St. Paul("Authority"),
WITNESSETH
WHEREAS, pursuarrt to the cable franchise (the "Franchise") between the Authority and
Continental Cablevision of St. Paul, Inc. ("Grantee), and certain agreements, understandings and
Franchise amendments related thereto, Cnantee has certain obligations related to the provision of
cable television and related services for the Authority's citizens; and
WHEREAS, Guarantor has proposed a merger whereby Continental Cablevisioq Inc.
("Continental") wtll merge into Guara�or or a subsidiary theteof and the merger will result in
, Guarantor or a subsidiary thereof owrung and controllin�Grantee; and
VVHEREAS, the Authority's consent is required to the change of conVol of Gra:rtee which
w;q result from the merger; and
WHEREAS,the Authority is not willing to consent to the chan�e of control of Crrantee which
will result from the me,rger unless the Guarantor unconditionally guarantees the payment, obligations
and peiformance of Grantee pursuant to the terms of the Franchise and certain agreemmts,
. understandings and Franchise amendrnents related thereto.
NOW, THEREFORE, as a condition of Authority's consent to the change of control of
Grantee, the parties do hereby agree as follows:
1. Guarantor irrcvocably and uncoiciditionally guarantee.s to the Authority or its successor
and assigns prompt and satisfactory paymer►t and performance by Cnantee of the Franchise and those
certain agreements� understandings and Franchise amendments related thereto, and all appficable
, federal, state and local laws, ordinanccs and regul�dons.
2. This Ouaranty shall be effective upon the opening of business on the date when the
merger of Continental and Guarantor or a subsidiary thereof is closed, and shall run throughout the
, term ofthe Franchise and any renewal or extension thereof, except that this Guaranty shaII terminate
at such earlier time that Guarantor Iawfully transf�rs own�rship or control of Grantee in accordance
with the Franchise and applicable federal, state and local law, including receipt of consent from
Authority for such transfer.
108`836-1
�
N,�v. 13. 1996 �:02FM ROBINS, KAPI,AN, MII.i,ER&i,IRESI 6 No. GY�b r, 3/13
��t'• ,�
. ` �� � �<���.
.
3. In the event that Guatantor should breach or fail to timely perform eny provisions of
this Guaraaty, Guarantor shall pay Authority all costs and acpenses (including court cvsts and
attomeys' fces) incurred by Authority in the successful enforcement hereof.
4. Guarantor represents and warrants that the acecution, delivery and performaace by �
Cuarantor of this Guaranty and the consummation of the transacCtions contemplated here,under do not,
and will not, wntravene or conflict with any law, statute or regulation whatsoever to which
Guarantor is subject or constitute a default (or an event which with notice or lapse of time or both
would constitute a default) under, or result in the breach o� any indenture, mortgage, deed of trust,
charge, lieq or any contract, agreement or other insmiment to which Guarantor is a party or which
may bc appbcable to Guarantor. This Guaranty is a legal and binding obligation of Guarantor and is
e�orceable in $ccordance witb its terms, except as limitcd by bankruptcy, insolvency or other laws
of general application relating to the enforcement of creditors' rights.
5. The Gvarantor agrees that no faiiure to exerciso, and no delay in exercising, on the
� part of the Authority, any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the eacercise of any other
right. The rights of the Authority hereunder shall be in addition to all other rights provided by law.
No modification or waiver of any provision of this Guaracrty, nor consent to departute therefrom,
shall be effective unless in writing and no such consent or waiver shall extend beyoad the particular
case and purpose involved. No notice or demand �ven in any case shall constitute a waiver of the
right to take other action in the same, similar or other instances without such notice or demand.
. 6. This Guaranty shall be governed by snd construed in accordance with the laws of the
State of M'innesota and the applicable laws of the United States of America.
7. This Guaranty may be acnended only by an ir�stniment in writing executed by the parry
or ar►authori�representative of the party against whom such amendment is sought to be enforced.
IN WI?NESS WHEREOF, Gvarantor has caused this Grua�•anty to be duly exxuted by its
authorized officers as of the day and year first above writtea
YJ.S. WEST, INC.
/j�� �
. By �?-�� -
T1t1C Vice President - Public Policy
t0848Sfr1 2