04-0907_COX COMMUNICATIONS_Cooperative AgreementCOOPERATIVE AGREEMENT
This COOPERATIVE AGREEMENT is made and entered into on this 7th day of
September 2004, by and between the City of San Juan Capistrano, California
(hereinafter "CITY") and CoxCom, Inc. dba Cox Communications (hereinafter "COX").
RECITALS
WHEREAS, in the course of its cable television franchise renewal activities, the City
conducted an ascertainment study comprising of a citizens survey and
financial review; and
WHEREAS, the City participated in a "Agreed Upon Procedures Review" (hereinafter
"Review") conducted by Diehl, Evans, & Co., LLP, which reviewed, among
other things, the franchise fees paid to the City by Cox for the calendar
years 1997 through 2001 and identified certain discrepancies in such
franchise fee payments to the City; and
WHEREAS, the City participated in scientific Survey of Cable subscribers and non -
subscribers to identify community needs and interests as they relate to
cable television services (hereinafter "Survey"); and
WHEREAS, City and Cox are entering into this cooperative agreement in order to
resolve those franchise fee discrepancies and the other findings from the
ascertainment study; and
WHEREAS, City and Cox are entering the cooperative agreement in order to
reimburse the City for its portion of the expense of the Survey as part of
the franchise renewal process:
NOW, THEREFORE, in consideration of the promises and undertakings herein, and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties do hereby agree as follows:
1. Cox will pay the City the sum of fifty-seven thousand six hundred dollars
($57,600.00) within 30 days of the full and complete execution of this
agreement. Such payment will be made by Cox to resolve any and all
outstanding issues under the Franchise Agreement and the Review and not
as an admission of any liability or wrongdoing on the part of Cox. Such
payment shall not be deducted from any franchise fee payments owing to the
City or be passed through to subscribers or itemized on a subscriber's bill.
2. Except as otherwise provided herein, the City hereby releases all known and
unknown liabilities, claims, and causes of action which were or could have
been asserted against Cox or its officers, directors, employees, agents,
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parents, subsidiaries and affiliated companies, with regard to events or
occurrences related to the Review conducted on behalf of the City covering
periods up to and including December 31, 2001.
3. This Agreement shall bind and benefit the parties hereto and their respective
heirs, beneficiaries, administrators, executors, receivers, trustees, successors
and assigns.
4. This Agreement is freely and voluntarily given by each party, without any
duress or coercion, and after each party has consulted with its counsel. Each
party has carefully and completely read all of the terms and provisions of this
Agreement.
6. This Agreement shall be governed and construed in accordance with the laws
of the State of California and exclusive venue shall be in the County of
Orange whether Federal or State Court as may be appropriate.
IN WITNESS WHEREOF the parties hereto certify that they have read and understand
all of the terms and conditions herein and have duly authorized and caused this
Agreement to be executed as of September 7, 2004.
ATTEST:
R. Monahan, City Clerk
fornia
CoxCom, Inc. dba Cox Communications
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APPROVED AS TO FORM: Leo Brennan, Vice President/Region Manager
"William Marli&oreW Special Counsel
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