HomeMy WebLinkAboutContract 40076CITY SECRETARY j �6�
CONTRACT NO.. i
SETTLEMENT AGREEMENT
1. This Settlement Agreement ("Agreement") is entered into this V� `-� day of
April, 2010 (the "Effective Date"), by and among the City of Fort Worth, Texas (the
y"), Strategic Cable Technologies, L.P. ("SCT"), and Lennar Corporation ("Lennar").
The City, SCT and Lennar sometimes are referred to individually as a "Party" and
collectively as the "Parties."
2. Effective December 30, 2003, the City, in Ordinance No. 15760, granted
SCT a franchise to construct, install, operate, and maintain a cable television system in
the area of Fort Worth, Texas, known as Sendera Ranch (the "Franchise"). Lennar, the
parent of SCT, guaranteed SCT's performance of its obligations under the Franchise.
On November 30, 2009, SCT sold all the assets used and useful for this cable television
system (the "System Sale") to Marcus Cable Associates, L.L.C. dba Charter
Communications ("Charter"). Charter is authorized to operate a cable television system
and to provide cable services to Sendera Ranch pursuant to its State -Issued Certificate
of Franchise Authority granted by the Public Utility Commission of Texas.
3. The Parties, without admitting any facts or liability on any claim or cause
of action, but continuing to deny the same, in order to avoid the cost, inconvenience and
burdens associated with contested litigation, desire to compromise and settle certain
outstanding claims between them on the terms. set forth herein. Therefore, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
and in consideration of the promises and covenants set forth in this Agreement, the
Parties agree as follows:
%jrVICIA L Kt: t7RD
CITY SECRETARY
FT: WORTH, TX
SETTLEMENT AGREEMENT
DALLAS 2111495v.1
Page 1
4. System Sale Approval and Termination of Franchise. The City hereby
approves the System Sale and hereby terminates the Franchise effective as of the
Effective Date.
5. SCT Payment. On the Effective Date, SCT shall pay the City the amount
of $60,000.00.
6. Covenant Not to Sue. The City unconditionally covenants that it shall not
commence or maintain any suit or assert any claim, including, but not limited to, a claim
for a temporary restraining order; temporary, preliminary or permanent injunction;
damages; or other legal or equitable relief that is reasonably calculated to enjoin,
obstruct, or otherwise interfere in any manner with the System Sale.
7. Mutual Releases. For and in consideration of the agreements and
releases set forth herein, effective as of the Effective Date, and except for any breach of
this Agreement, SCT and Lennar, for themselves and on behalf of their former, present,
and future parents, subsidiaries, predecessors, successors, shareholders, partners,
members, directors, officers, managers, employees, agents, representatives, insurers,
affiliates, associated entities of every kind and nature, and assigns (collectively, the
"SCT Parties"), hereby release, acquit, and forever discharge the City and its former,
present and future officials, employees, agents, representatives, insurers, associated
entities of every kind and nature, and assigns (collectively, the "City Parties") from all
claims, causes of action, liabilities, demands, defenses, controversies, actions, or debts,
of whatever nature or character, fixed or contingent, liquidated or unliquidated, known or
unknown (collectively, the "Claims"), which SCT or Lennar has or may have in the future
arising from or relating in any manner to the Franchise or the System Sale, arising at
any time from the beginning of time to the Effective Date,
SETTLEMENT AGREEMENT
DALLAS 2111495v.1 Page 2
8. For and in consideration of the agreements and releases set forth herein,
effective upon the Effective Date, and except for any breach of this Agreement, the City,
for itself and on behalf of the City Parties, hereby releases, acquits Cl"d forever
discharges SCT, Lennar, and all other SCT Parties from all Claims which the City has or
may have in the future arising from or relating in any manner to the Franchise or the
System Sale, arising at any time from the beginning of time to the Effective Date.
9. Representations and Warranties. As a material inducement to the Parties'
entry into this Agreement, each Party unconditionally represents and warrants at the
signing of this Agreement and delivery of any documents hereunder:
(a) that it has carefully read this Agreement, that it has had an
opportunity to discuss its effect with counsel of its choice and that it
fully understands its final and binding effect;
(b) that it has the necessary authority to settle this matter fully on
behalf of itself and all parties whose interests it purports to release
in accordance with the terms of this Agreement, and that the
individuals who execute this Agreement on its behalf are fully
authorized to execute the Agreement and to bind the releasing
parties;
(c) that it has not assigned to others, but is the owner of the Claims
released herein Cl" that it has the entire and exclusive authority to
settle them on the terms herein set forth;
(d) that it has executed this Agreement as its free and voluntary act,
without any fraudulent inducement, duress, coercion or undue
influence exerted by or on behalf of any other Party; and
(e) that no promise, representation, conduct, or consideration by any
other Party to this Agreement, its owners, agents, servants,
employees, attorneys or persons in privity with it has induced the
execution of this Agreement except for those representations and
agreements specifically set forth herein.
10. Miscellaneous. The provisions of this Agreement comprise all the terms,
conditions, agreements, and representations of any of the Parties respecting the
SETTLEMENT AGREEMENT
DALLAS 21 ll495v.1
Page 3
settlement and compromise of this dispute, the matters relative thereto and the matters
respecting this Agreement. This Agreement may not be amended, supplemented or
otherwise modified except by further written agreement of the Parties.
11. This Agreement shall be binding upon and inure to the benefit %J the
Parties and their respective successors, insurers, creditors, agents, representatives,
associated entities and assigns.
12. Neither this instrument, the agreements evidenced hereby, nor any related
evidence will be admissible in evidence against any of the Parties in any lawsuit, claim
or arbitration proceeding of any nature, except in an action for breach of, to enforce, or
to construe, the Agreement.
13. This Agreement may be executed in multiple counterparts and transmitted
via facsimile or electronic mail, any and all of which shall be construed and enforceable
as the Agreement.
14. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term hereof, such
provision shall be fully severable, and the remaining provisions thereof shall remain in
full force and effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance therefrom.
15. This Agreement shall be construed under the laws of the State of Texas.
Venue for any action under this Agreement shall lie exclusively in state courts located in
Tarrant County, Texas or the United States District Court for the Northern District of
Texas —Fort Worth Division.
16. This Agreement shall not be construed against any Party as the drafting
party.
SETTLEMENT AGREEMENT
DALLAS 2ll 1495v.1 Page 4
1 to Each Party will pay its own costs and attorneys' fees incurred in
connection with the preparation of this Agreement. In the event that any Party
materially breaches its obligations under this Agreement, and such failure continues
uncured for a period of 30 days after written notice to cure from another Party, then
each non -breaching Party shall be entitled to recover any and all costs and expenses
associated with any litigation required to enforce this Agreement, including reasonable
and necessary attorneys' fees.
SIGNATURE PAGES FOLLOW
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
SETTLEMENT AGREEMENT
DALLAS 2111495v.1
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date.
CITY OF FORT WORTH, TEXAS
AS51�`�AN
Attested by.
STRATEGIC
By:
Date:
LENNAR CO
By:
Date:
TION
HNOLOGIES, L.P.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
DALLAS 2111495v.1
city of Fort Worth, Texas
Mayor and councii u
unication
COUNCIL ACTION: Approved on 4/6/2010 —Ord. No. 19091-04-2010 & 19092-04-2010
DATE: Tuesday, Apri106, 2010 REFERENCE NO.: **G-16878
LOG NAME: 12CABLE SALE
SUBJECT:
Adopt Ordinance Terminating Cable Television Franchise with Strategic Cable Technologies, L.P., and
Consenting to the Sale of Cable System to Charter Communications, Authorize Execution of Related
Settlement Agreement and Adopt Appropriation Ordinance
RECOMMENDATION:
It is recommended that the City Council:
1. Adopt the attached Ordinance terminating the cable television franchise granted to Strategic Cable
Technologies, L.P.,(SCT) and consenting to the sale of SCT's cable system to Charter Communications;
2. Authorize the City Manager to execute a settlement agreement with SCT pursuant to which both the City
and SCT release one another from all legal claims regarding the sale of SCT's system to Charter
Communications in return for a payment by SCT to the City of $60,000.00; and
3. Adopt the attached Appropriation Ordinance increasing estimated receipts and appropriations in the Cable
Communications Section of the Special Trust Fund in the amount of $60,000.00.
DISCUSSION:
On December 2, 2003, the City Council adopted Ordinance No. 15790 (M&C G-14166) granting SCT a
franchise (the Franchise) to use public rights —of —way in the City for the operation of a cable television
system. SCT serves approximately 1,800 customers in the Sendera Ranch area of north Fort Worth. The
Franchise requires SCT to obtain the City's consent prior to any sale or transfer of SCT's cable system to
another party.
In December 2009, SCT notified the City that it intended to sell its system to Charter Communications
(Charter) and to terminate the Franchise. Charter is authorized to provide cable television services in the City
of Fort Worth under a permit issued by the Texas Public Utility Commission and, in accordance with Chapter
66 of the Texas Utilities Code, is not subject to local franchising authority as SCT is. The City is willing to
consent to the termination of the Franchise and the sale of SCT's system to Charter in return for a payment by
SCT of $60,000.00, which City staff believes is reasonable compensation for the loss of certain regulatory
rights under the Franchise that are not available under state law.
FISCAL INFORMATION:
The Financial Management Services Director certifies that the Community Relations Department is
responsible for the collection and deposit of funds due to the City.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
FE72 481306 002500100000
�•/ 111 11
CERTIFICATIONS:
Submitted for City Manager's Office by: ALL ACMs (6222)
Originating Department Head: David Yett (7623)
Additional Information Contact: Peter Vaky (7601)
ATTACHMENTS
1. 12CABLE SALE AO.doc
2. FAC VERIFICATION.doc
3. STI Franchise Termination Ordinance.DOC