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1997-0929_COX COM, INC._Settlement Agreement0) W DUPLICATE ORIGINAL SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT is intended to effectuate a complete settlement and resolution of the Petitioners' challenge Wand claims against the Respondents and Intervenor in City of Irvine et al v Federal Communications Commission, et al., Case No. 96- 70058, pending before the United States Court of Appeals for the Ninth Circuit (the "Appeal"), and to foreclose litigation over any matters relating to the Appeal arising prior to the date of this Settlement Agreement between the parties to this Settlement Agreement (the "Parties"), who are defined as follows: City of Irvine, City of Laguna Bills, City of Laguna -Niguel, City of Lake Forest, City of Mission Viejo, City of San Clemente, and City of San Juan Capistrano (collectively, the "Cities"), and Cox Communications, Inc. ("Cox"), 0914"i .9 WHEREAS, the Cities are local franchising authorities in Orange County, California, and Cox, through one or more subsidiaries, operates cable television systems in Orange County, California; WHEREAS, on or about December 1, 1995, the Commission released a Final Order in In the Matter of Cox Communications Inc and Times Mirror Cable Television Inc - Rate Complaints, 1995 FCC LEXIS 7712, FCC 95-483, resolving rate complaints filed against cable television systems owned by Cox and its subsidiaries, including systems formerly owned by subsidiaries of Times Mirror Cable Television, Inc., regarding the rates charged for cable programming services; WHEREAS, on or about January 26, 1996, the Cities filed the Appeal, i.e., a petition for review in the United States Court of Appeals for the Ninth Circuit of the Final Order of the Commission, challenging, among other things, the authority of the Commission to enter into and issue the Final Order; WHEREAS, on or about February 23, 1996, Cox filed a motion for leave to intervene as of right in the Appeal, which the Ninth Circuit granted on or about March 11, 1996; WHEREAS, on or about July 31, 1996, the Commission filed a motion for a limited remand of the record, which the Ninth Circuit granted on or about August 22, 1996; WHEREAS, Cox believes that the Commission acted within the scope of its authority in issuing the Final Order and resolving all the complaints pending against the Cox and former Times Mirror systems, and that the Final Order is fully supported by the record in the matter, but the Cities take a contrary view; WHEREAS, the Cities and Cox wish to resolve this dispute without further litigation and without the substantial costs such litigation would entail; 0) WHEREAS, it would be in the best interests of the subscribers residing within the Cities for the Appeal to be resolved and to avoid the cost, delay and uncertainty of this litigation; WHEREAS, the Cities and Cox, voluntarily and with full knowledge of their rights, and without any admission of improper or unreasonable cable television rates or charges, liability for refunds, or any other wrongdoing, now desire to settle, compromise, and dispose of the Appeal and any other claims the Cities may have against Cox relating to the matters raised in the Appeal, on the terms set forth herein; WHEREAS, the Cities have agreed to dismiss the Appeal with prejudice and to release any and all claims against Cox relating to the subject matter herein, arising prior to this Settlement Agreement, and the Cities and Cox have further agreed that this will constitute a full and final settlement; NOW, THEREFORE, in consideration of the prior recitals and of the promises and mutual obligations stated below, and other valuable consideration, the Cities and Cox, intending to be legally bound, agree as follows: 1. Release by the Cities. The Cities, and each of them individually, for themselves, their representatives, officers, agents and employees, and for any predecessors in interest, successors and assigns of any of the above, hereby forever and fully release, remise, acquit and discharge Cox and any of its subsidiaries, parents, affiliates, divisions, officers, directors, agents, contractors, representatives, employees, partners, attorneys, insurers, and their successors and assigns, from all actions, causes of action, suits, torts, damages, claims, charges, demands, or other liability or relief of any nature whatsoever arising under any federal, state, or local law, occurring on or prior to the date of this Settlement Agreement and arising out of, or which may arise out of, or in any way relate to the matters alleged or raised in the Appeal or which relate to the same subject matters and could have been alleged or raised in the Appeal, except that this release shall have no effect on the issues surrounding the possessory interest surcharge, by whatever name, collected by Cox, and the potential refund thereof. 2. Dismissal of AAp eal The Cities agree to take any and all actions necessary to effect the dismissal with prejudice of the Appeal in accordance with the Federal Rules of Appellate Procedure and the Local Rules of the Ninth Circuit, including, but not limited to, taking all actions necessary to cooperate in obtaining the agreement of the Commission to the dismissal with prejudice of the Appeal, filing an agreement of dismissal in a form substantially similar to Exhibit A, or filing a motion, if required, under Rule 42(b) of the Federal Rules of Appellate Procedure. If costs of the appeal are assessed by the Ninth Circuit, Cox, on the one hand, and the Cities, on the other, agree each to pay fifty percent (50%) of said costs. 0) 0) 3. Payment of Settlement Amount Cox agrees to pay to the Cities the amount of One Million Fifty Thousand Dollars ($1,050,000.00), inclusive of interest, attorney's fees and costs, to be paid after both the full execution of the Settlement Agreement and the dismissal with prejudice of the Appeal. The sum of Fifty Thousand Dollars ($50,000.00) will be paid to counsel -of -record for the Cities within ten (10) days of the last of the execution of the Settlement Agreement and the entry of the dismissal with prejudice of the appeal. For administrative convenience, distribution of One Million Dollars ($1,000,000.00) (the "Settlement Amount") will be made in the form of one -rime credits on the cable bills of Eligible Subscribers. The Settlement Amount will be allocated and apportioned to Eligible Subscribers in each of the Cities according to the written allocation formula provided to Cox within thirty (30) days of the date of execution of this agreement by the Cities (the "Allocation Formula'). The Allocation Formula shall specify the total dollar amount to be allocated to each City for distribution in equal amounts to all Eligible Subscribers in that City. If a written Allocation Formula is not provided to Cox within the stated time period of thirty (30) days (the "Default Period"), Cox will distribute the Settlement Amount equally among all Eligible Subscribers in all Cities. Eligible Subscribers shall mean subscribers of record to Cox's cable television systems in the Cities as of the last day of the month in which all the conditions in the first sentence of this paragraph are satisfied, and shall include only the following: a. Individually billed residential customers - one credit per account; b. Bulk billed residential customers - the master account will receive one credit per unit billed; the individual accounts within the bulk will not receive credits; C. Commercial customers - one credit per account; and d. Hotels - one credit per account, i.e., not one credit per room. Credits will be provided to Eligible Subscribers during the first billing cycle to occur after sixty (60) days of Cox's receipt of the Allocation Formula or, if the Allocation Formula is not conveyed to Cox within the Default Period, then during the first billing cycle to occur after sixty (60) days subsequent to the Default Period. Promotional accounts will not receive credits. The amount of each credit per Eligible Subscriber will be calculated by dividing the number of Eligible Subscribers into the total amount to be distributed. Cox shall notify the Cities of payment of the credits within ninety (90) days of receipt of the Allocation Formula or, if the Allocation Formula is not conveyed to Cox within the Default Period, then within ninety (90) days subsequent to the Default Period. 4. No Admission of Liability for Refunds or Otherwise The Cities and Cox expressly understand and agree that the distribution of funds under this Settlement Agreement constitutes a payment in settlement and compromise of disputed and doubtful claims, including costs and attorney's fees, in order to resolve litigation and potential litigation and does not constitute, nor shall it be construed to constitute, an admission or determination of refund liability or an agreement for the payment of rate refunds to subscribers. Cox expressly denies liability or wrongdoing, denies the validity of the Cities' claims, and by entering this Settlement Agreement 0) intends merely to avoid further litigation or potential litigation with respect to the Cities' claims and potential claims. 5. Public Statements. The parties acknowledge that the Settlement Agreement is a public document which must be approved in public session. Other than publication required by the Cities in order to effectuate the approval of this Settlement Agreement, the Cities and Cox agree to use reasonable efforts not to publicize, communicate, disclose, or reveal in any manner, either by themselves or through counsel or any other agent, any of the terms of this Settlement Agreement to any person or entity not a Party to this Settlement Agreement without prior written permission from the other Parties. The Cities and Cox agree that, if anyone makes inquiry of them regarding this matter, they may make a public statement in accordance with Exhibit B or provide the information contained therein, and shall make no further comment on the subject except to provide, if requested, the dollar amount of refunds allocated to each City. Nothing in this Settlement Agreement shall prevent disclosure of the terms of this Settlement Agreement pursuant to applicable law or an order of any court of competent jurisdiction or to any taxing authority. 6. Entire Agreement. The Cities and Cox understand and agree that this Settlement Agreement, including exhibits, embodies their entire agreement and understanding with respect to the matters addressed. This Settlement Agreement supersedes any prior agreements and understandings between the Parties hereto, whether written or oral, with respect to the matters addressed by this Settlement Agreement, and the Settlement Agreement may not be changed, amended, extended, terminated, modified, waived, or discharged except by a written instrument signed by all parties hereto. 7. Authority to Enter Into Settlement Agreement. Each of the undersigned represents and warrants that he or she has the full authority to bind the Party on whose behalf he or she executes this Settlement Agreement. S. Binding on Assignees. This Settlement Agreement shall be binding upon and shall inure to the benefit of the Cities and Cox, their representatives, agents, employees, successors and assigns. 9. Settlement A;reement Will Not Be Challenged Each Party to this Settlement Agreement agrees that it will take no action (including, but not limited to, institution of a separate lawsuit) which seeks to challenge any provision of this Settlement Agreement or any documents provided for in this Settlement Agreement. 10. SeverabilitX If any portion of this Settlement Agreement is found to be unenforceable, the Cities and Cox desire and agree that all other portions that can be separated from it or appropriately limited in scope shall remain fully valid and enforceable. 11. Waivers. No waiver by any Party of any default by another Party in the strict and literal performance of or compliance with any term, condition, provision or requirement contained in this Settlement Agreement shall be deemed a waiver of strict and literal performance of any other ny term, condition, provision or requirement, nor shall delay or omission on the part of any Party after default by another party constitute a waiver of compliance with any other term, condition, provision or requirement contained in this Settlement Agreement. 12. Choice of Law. This Settlement Agreement shall be governed by the laws of California without regard to the principles of conflicts of laws. 13. CountgW arts. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, and which together shall constitute one and the same instrument. 14. Effective Date. This Settlement Agreement shall become effective on the last date of signature by the Parties hereto. IN WITNESS WHEREOF, the Cities and Cox have executed this Settlement Agreement: Cox Communications, Inc By: Title: City By: Titl( City of Laguna Hills By: Title: Date Date Date Gir�ci<-r of: CQM'WY�t_V1lFEl�<V� �,.C> term, condition, provision or requirement, nor shall delay or omission on the part of any Party after default by another Party constitute a waiver of compliance with any other term, condition, provision or requirement contained in this Settlement Agreement. 12. Choice of Law. This Settlement Agreement shall be governed by the laws of California without regard to the principles of conflicts of laws. 13. Counterparts. This Settlement Agreement maybe executed in counterparts, each of which shall be deemed an original, and which together shall constitute one and the same instrument. 14. Effective Date. This Settlement Agreement shall become effective on the last date of signature by the Parties hereto. IN WITNESS WHEREOF, the Cities and Cox have executed this Settlement Agreement: Cox Communications, Inc. By: Title: City of Irvine By: Title: City of By: Title: Attest: Mary A. C -1s8—)n City C1e Date Date 4z Date Approved as to Form: Lois E. Jeff City Attorney City of Laguna Niguel / By: Jr�Gl4 Title: CITY HA WF2 City of Lake Forest By: Title: City of Mission Viejo By: Title: City of San Clemente By: Titic: City of San Juan Capistrano By: Title: 6 I MEWFA Y, I9W Date Date Date Date Date City of Laguna Niguel By: Date Title: City of Lake Forest By: (CJ Title: City of Mission Viejo By: Title: City of San Clemente By: Title: City of San Juan Capistrano By: Title: 2 Date ATTEST: ately, CMC *itylerk. City of L ke Forest Date Date Date City of Laguna Niguel By: Title: City of Lake Forest By: Title: City of Mission Viejo By: Title: City of San Ctemente By: Title: City of San Juan Capistrano By: Title: ri Date Date Date Date Date Wi City of Laguna Niguel By: Date Title: City of Lake Forest By: Date Title: City of Mission Viejo By: Date Title: City of San Clemente Date Title:VD� City of San Juan Capistrano By: _ Date Title: W) r City of Laguna Niguel By: Title: City of Lake Forest By: Title: City of Mission Viejo By: Title: City of San Clemente By: Title: City of San Juan Capistrano By: Title: David M. Swerdlin, Mayor N W Date Date Date Date September 2, 1997 Date EXHIBIT A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CITY OF IRVINE, et al. Petitioners, V. FEDERAL COMMUNICATIONS COMMISSION, AND THE UNITED STATES OF AMERICA Respondents, and COX COMMUNICATIONS, INC. Intervenor Case Number: 96-70058 AGREEMENT FOR DISMISSAL WITH PREJUDICE Pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, the Petitioners City of Irvine, City of Laguna Hills, City of Laguna Niguel, City of Lake Forest, City of Mission Viejo, City of San Clemente, and City of San Juan Capistrano, Respondents Federal Communications Commission and The United States, and Intervenor Cox Communications, Inc. hereby notify the Court of their mutual agreement that the above -captioned proceeding be dismissed with prejudice, costs to be paidjointly by Petitioners and Intervenor. To the extent the Court determines that a joint motion is required, the parties hereto request that this be considered 0) be considered a joint motion for dismissal with prejudice and that the Court issue an order dismissing the proceeding with prejudice. Respectfully submitted, William M. Marticorena, Esq. Kara S. Carlson, Esq. Rutan & Tucker 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Counsel for P 'ttoners Dani . Arms ong, Associate deneral Counsel C. drey Pash, Jr., Counsel Federal Communications Commission Washington, D.C. 20554 Counsel for Respondent Federal Communication Commission CatVrine G. O'Sullivan, Esq./ Ro ert B. Nicholson, Esq. Robert J. Wiggers, Esq. Antitrust Division United States Department of Justice Counsel for Respondent United States of America -2- •N SO ORDERED AND APPROVED this _ day of October, 1997: United States Circuit Judge a David E. Mills, Esq. Peter H. Feinberg, Esq. Dow, Lohnes & Albertson Suite 800 1200 New Hampshire Ave., N.W. Washington, D.C. 20036 Counsel for intervenor -3- PUBLIC ATEM NT In December 1995, the Federal Communications Commission approved a settlement of all the outstanding complaints that had been filed against cable systems owned by subsidiaries of Cox Communications, Inc. and Times Mirror Cable Television, Inc., regarding the rates charged for cable programming services. The Federal Communications Commission determined that it was in the best interests of all the subscribers and the cable operators to resolve all the pending "rate complaints in a single global settlement. In January, 1996, seven Cities, all of which are local franchising authorities in Orange County, California, appealed the Commission's decision to approve the settlement of the rate complaints against the former Times Mirror systems. The Commission and Cox each believe that the Commission had the authority to approve the settlement, but the Cities believe that the Commission acted beyond its authority. The parties continue to maintain their positions, and there has been no determination that the Commission or Cox acted improperly, that the cable rates in question were improper or unreasonable or that cable rate. refunds are owed. The Cities have determined that it is in the best interests of the cable subscribers to resolve the case and to avoid the cost, delay and uncertainty of this litigation. Cox, too, would like to put the dispute behind it and continue to provide service to its subscribers. Accordingly, the Cities and Cox have agreed to a settlement in which Cox will distribute a sum of money to the Cities, and the Cities will dismiss the case. The specific amount to be allocated to each City will be available shortly. The distribution of the settlement amount will be in the form of credits to current subscribers, which Cox will arrange for the convenience of the parties. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CITY OF IRVINE, et al. Petitioners, V. FEDERAL COMMUNICATIONS COMMISSION, AND THE UNITED STATES OF AMERICA Respondents, COX COMMUNICATIONS, INC. Intervenor Case Number: 96-70058 R F c��Fn AGREEMENT FOR DISMISSAL WITH PREJUDICE Pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, the Petitioners City of Irvine, City of Laguna Hills, City of Laguna Niguel, City of Lake Forest, City of Mission Viejo, City of San Clemente, and City of San Juan Capistrano, Respondents Federal Communications Commission and The United States, and Intervenor Cox Communications, Inc. hereby notify the Court of their mutual agreement that the above -captioned proceeding be dismissed with prejudice, costs to be paid jointly by Petitioners and Intervenors. To the extent the Court determines that a joint motion is required, the parties hereto request that this 11 0) be considered a joint motion for dismissal with prejudice and that the Court issue an order dismissing the proceeding with prejudice. Respectfully submitted, W. a�'.�..�..-:- William M. Marticorena, Esq. Kara S. Carlson, Esq. Rutan & Tucker 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Counsel for Pe itioners Dani9rM. Armstrong, Associate afeneral Counsel C. (frey Pash, Jr., Counsel Federal Communications Commission Washington, D.C. 20554 Counsel for Respondent Federal Communication Commission lG & Catyrine G. O'Sullivan, Esq./ Robert B. Nicholson, Esq. Robert J. Wiggers, Esq. Antitrust Division United States Department of Justice Counsel for Respondent United States of America -2- 0 SO ORDERED AND APPROVED this _ day of October, 1997: United States Circuit Judge 0 I David E. Mills, Esq. Peter H. Feinberg, Esq. Dow, Lohnes & Albertson Suite 800 1200 New Hampshire Ave., N.W. Washington, D.C. 20036 Counsel for Intervenor -3- io: �J ins/ Wi c)ivcl(z� �i2i ytr t.ee� [ktwr� Ow'oy�cjeehas never reeetved a �OR Cox C'o�I�u�v ��.sr�o�,s jor phi's ag �Perne.c�r. WO" you./olease oheee on tht's. CHAn/K 4OU J y 7SETTLEMENT AGREEMENT C.L�� This SETTLEMENT AGREEMENT is intended to effectuate a complete settlement and resolution of the Petitioners' challenge to and claims against the Respondents and Intervenor in City of Irvine et al. v. Federal Communications Commission. et al., Case No. 96- 70058, pending before the United States Court of Appeals for the Ninth Circuit (the "Appeal"), and to foreclose litigation over any matters relating to the Appeal arising prior to the date of this Settlement Agreement between the parties to this Settlement Agreement (the "Parties"), who are defined as follows: City of Irvine, City of Laguna Hills, City of Laguna Niguel, City of Lake Forest, City of Mission Viejo, City of San Clemente, and City of San Juan Capistrano (collectively, the "Cities"), and Cox Communications, Inc. ("Cox"). I O(q RECITALS�- WHEREAS, the Cities are local franchising authorities i v\ `d4 `' -" "Co California, and Cox, through one or more subsidiaries, operates cable t, ,� Orange County, California; pro l� WHEREAS, on or about December 1, 1995, the Commission released a Final Order in In the Matter of Cox Communications_ Inc. and Times Mirror Cable Television Inc.. -- Rate Complaints, 1995 FCC LEXIS 7712, FCC 95-483, resolving rate complaints filed against cable television systems owned by Cox and its subsidiaries, including systems formerly owned by subsidiaries of Times Mirror Cable Television, Inc., regarding the rates charged for cable programming services; WHEREAS, on or about January 26, 1996, the Cities filed the Appeal, ie., a petition for review in the United States Court of Appeals for the Ninth Circuit of the Final Order of the Commission, challenging, among other things, the authority of the Commission to enter into and issue the Final Order; WHEREAS, on or about February 23, 1996, Cox filed a motion for leave to intervene as of right in the Appeal, which the Ninth Circuit granted on or about March 11, 1996; WHEREAS, on or about July 31, 1996, the Commission filed a motion for a limited remand of the record, which the Ninth Circuit granted on or about August 22, 1996; WHEREAS, Cox believes that the Commission acted within the scope of its authority in issuing the Final Order and resolving all the complaints pending against the Cox and former Times Mirror systems, and that the Final Order is fully supported by the record in the matter, but the Cities take a contrary view; WHEREAS, the Cities and Cox wish to resolve this dispute without further litigation and without the substantial costs such litigation would entail; 9 0 WHEREAS, it would be in the best interests of the subscribers residing within the Cities for the Appeal to be resolved and to avoid the cost, delay and uncertainty of this litigation; WHEREAS, the Cities and Cox, voluntarily and with full knowledge of their rights, and without any admission of improper or unreasonable cable television rates or charges, liability for refunds, or any other wrongdoing, now desire to settle, compromise, and dispose of the Appeal and any other claims the Cities may have against Cox relating to the matters raised in the Appeal, on the terms set forth herein; WHEREAS, the Cities have agreed to dismiss the Appeal with prejudice and to release any and all claims against Cox relating to the subject matter herein, arising prior to this Settlement Agreement, and the Cities and Cox have further agreed that this will constitute a full and final settlement; NOW, THEREFORE, in consideration of the prior recitals and of the promises and mutual obligations stated below, and other valuable consideration, the Cities and Cox, intending to be legally bound, agree as follows: F.DrIfiff NUMMI 1. Release by the Cities. The Cities, and each of them individually, for themselves, their representatives, officers, agents and employees, and for any predecessors in interest, successors and assigns of any of the above, hereby forever and fully release, remise, acquit and discharge Cox and any of its subsidiaries, parents, affiliates, divisions, officers, directors, agents, contractors, representatives, employees, partners, attorneys, insurers, and their successors and assigns, from all actions, causes of action, suits, torts, damages, claims, charges, demands, or other liability or relief of any nature whatsoever arising under any federal, state, or local law, occurring on or prior to the date of this Settlement Agreement and arising out of, or which may arise out of, or in any way relate to the matters alleged or raised in the Appeal or which relate to the same subject matters and could have been alleged or raised in the Appeal, except that this release shall have no effect on the issues surrounding the possessory interest surcharge, by whatever name, collected by Cox, and the potential refund thereof. 2. Dismissal of Appeal. The Cities agree to take any and all actions necessary to effect the dismissal with prejudice of the Appeal in accordance with the Federal Rules of Appellate Procedure and the Local Rules of the Ninth Circuit, including, but not limited to, taking all actions necessary to cooperate in obtaining the agreement of the Commission to the dismissal with prejudice of the Appeal, filing an agreement of dismissal in a form substantially similar to Exhibit A, or filing a motion, if required, under Rule 42(b) of the Federal Rules of Appellate Procedure. If costs of the appeal are assessed by the Ninth Circuit, Cox, on the one hand, and the Cities, on the other, agree each to pay fifty percent (50%) of said costs. 0 0 3. payment of Settlement Amount, Cox agrees to pay to the Cities the amount of One Million Fifty Thousand Dollars ($1,050,000.00), inclusive of interest, attorney's fees and costs, to be paid after both the full execution of the Settlement Agreement and the dismissal with prejudice of the Appeal. The sum of Fifty Thousand Dollars ($50,000.00) will be paid to counsel -of -record for the Cities within ten (10) days of the last of the execution of the Settlement Agreement and the entry of the dismissal with prejudice of the appeal. For administrative convenience, distribution of One Million Dollars ($1,000,000.00) (the "Settlement Amount") will be made in the form of one-time credits on the cable bills of Eligible Subscribeis. The Settlement Amount will be allocated and apportioned to Eligible Subscribers in each of the Cities according to the written allocation formula provided to Cox within thirty (30) days of the date of execution of this agreement by the Cities (the "Allocation Formula"). The Allocation Formula shall specify the total dollar amount to be allocated to each City for distribution in equal amounts to all Eligible Subscribers in that City. If a written Allocation Formula is not provided to Cox within the stated time period of thirty (30) days (the "Default Period"), Cox will distribute the Settlement Amount equally among all Eligible Subscribers in all Cities. Eligible Subscribers shall mean subscribers of record to Cox's cable television systems in the Cities as of the last day of the month in which all the conditions in the first sentence of this paragraph are satisfied, and shall include only the following: a. Individually billed residential customers - one credit per account; b. Bulk billed residential customers - the master account will receive one credit per unit billed; the individual accounts within the bulk will not receive credits; C. Commercial customers - one credit per account; and d. Hotels - one credit per account, i.e., not one credit per room. Credits will be provided to Eligible Subscribers during the first billing cycle to occur after sixty (60) days of Cox's receipt of the Allocation Formula or, if the Allocation Formula is not conveyed to Cox within the Default Period, then during the first billing cycle to occur after sixty (60) days subsequent to the Default Period. Promotional accounts will not receive credits. The amount of each credit per Eligible Subscriber will be calculated by dividing the number of Eligible Subscribers into the total amount to be distributed. Cox shall notify the Cities of payment of the credits within ninety (90) days of receipt of the Allocation Formula or, if the Allocation Formula is not conveyed to Cox within the Default Period, then within ninety (90) days subsequent to the Default Period. 4. No Admission of Liability for Refunds or Otherwise. The Cities and Cox expressly understand and agree that the distribution of funds under this Settlement Agreement constitutes a payment in settlement and compromise of disputed and doubtful claims, including costs and attorney's fees, in order to resolve litigation and potential litigation and does not constitute, nor shall it be construed to constitute, an admission or determination of refund liability or an agreement for the payment of rate refunds to subscribers. Cox expressly denies liability or wrongdoing, denies the validity of the Cities' claims, and by entering this Settlement Agreement 0 intends merely to avoid further litigation or potential litigation with respect to the Cities' claims and potential claims. 5. Public Statements. The parties acknowledge that the Settlement Agreement is a public document which must be approved in public session. Other than publication required by the Cities in order to effectuate the approval of this Settlement Agreement, the Cities and Cox agree to use reasonable efforts not to publicize, communicate, disclose, or reveal in any manner, either by themselves or through counsel or any other agent, any of the terms of this Settlement Agreement to any person or entity not a Party to this Settlement Agreement without prior written permission from the other Parties. The Cities and Cox agree that, if anyone makes inquiry of them regarding this matter, they may make a public statement in accordance with Exhibit B or provide the information contained therein, and shall make no further comment on the subject except to provide, if requested, the dollar amount of refunds allocated to each City. Nothing in this Settlement Agreement shall prevent disclosure of the terms of this Settlement Agreement pursuant to applicable law or an order of any court of competent jurisdiction or to any taxing authority. 6. Entire Agreement. The Cities and Cox understand and agree that this Settlement Agreement, including exhibits, embodies their entire agreement and understanding with respect to the matters addressed. This Settlement Agreement supersedes any prior agreements and understandings between the Parties hereto, whether written or oral, with respect to the matters addressed by this Settlement Agreement, and the Settlement Agreement may not be changed, amended, extended, terminated, modified, waived, or discharged except by a written instrument signed by all parties hereto. 7. Authority to Enter Into Settlement A,ereement. Each of the undersigned represents and warrants that he or she has the full authority to bind the Party on whose behalf he or she executes this Settlement Agreement. 8. Binding on Assignees. This Settlement Agreement shall be binding upon and shall inure to the benefit of the Cities and Cox, their representatives, agents, employees, successors and assigns. 9. Settlement A¢reement Will Not Be Challenged, Each Party to this Settlement Agreement agrees that it will take no action (including, but not limited to, institution of a separate lawsuit) which seeks to challenge any provision of this Settlement Agreement or any documents provided for in this Settlement Agreement. 10. Severability. If any portion of this Settlement Agreement is found to be unenforceable, the Cities and Cox desire and agree that all other portions that can be separated from it or appropriately limited in scope shall remain fully valid and enforceable. 11. Waivers. No waiver by any Party of any default by another Party in the strict and literal performance of or compliance with any term, condition, provision or requirement contained in this Settlement Agreement shall be deemed a waiver of strict and literal performance of any other 0 Ll term, condition, provision or requirement, nor shall delay or omission on the part of any Party after default by another Parry constitute a waiver of compliance with any other term, condition, provision or requirement contained in this Settlement Agreement. 12. Choice of Law. This Settlement Agreement shall be governed by the laws of California without regard to the principles of conflicts of laws. 13. Counterparts. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, and which together shall constitute one and the same instrument. 14. Effective Date. This Settlement Agreement shall become effective on the last date of signature by the Parties hereto. IN WITNESS WHEREOF, the Cities and Cox have executed this Settlement Agreement: Cox Communications, Inc. 6"T ► l k X l S S 1 PJS By: Title: City of Irvine By: Title: City of Laguna By: Title: 5 Date Date Date 0 City of Laguna Niguel By: Title: City of Lake By: Title: City of Mission Viejo By: Title: City of San Clemente By: Title: City of San Juan Capistrano By: Title: David M. Swerdlin, Mayor 2 0 Date Date Date Date September 2, 1997 Date UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CITY OF IRVINE, et al. Petitioners, V. FEDERAL COMMUNICATIONS COMMISSION, AND THE UNITED STATES OF AMERICA Respondents, and COX COMMUNICATIONS, INC. Intervenor Case Number: 96-70058 i1y_r:� Pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, the Petitioners City of Irvine, City of Laguna Hills, City of Laguna Niguel, City of Lake Forest, City of Mission Viejo, City of San Clemente, and City of San Juan Capistrano, Respondents Federal Communications Commission and The United States, and Intervenor Cox Communications, Inc. hereby notify the Court of their mutual agreement that the above -captioned proceeding be dismissed with prejudice, costs to be paid jointly by Petitioners and Intervenor. To the extent the Court determines that a joint motion is required, the parties hereto request that this be considered 0 0 a joint motion for dismissal with prejudice and that the Court issue an order dismissing the proceeding with prejudice. Respectfully submitted, William M. Marticorena, Esq. Kara S. Carlson, Esq. Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Counsel for Petitioners William E. Kennard, General Counsel Daniel M. Armstrong, Associate General Counsel C. Grey Pash, Jr., Counsel Federal Communications Commission Washington, D.C. 20554 Counsel for Respondent Federal Communications Commission Catherine G. O'Sullivan, Esq. Robert B. Nicholson, Esq. Robert J. Wiggers, Esq. Antitrust Division United States Department of Justice Counsel for Respondent United States of America z David E. Mills, Esq. Peter H. Feinberg, Esq. Dow, Lohnes & Albertson Suite 800 1200 New Hampshire Ave., N.W. Washington, D.C. 20036 Counsel for Intervenor SO ORDERED AND APPROVED this _ day of September, 1997: United States Circuit Judge La 1 13 if LWIVIN 0 aNWIM In December 1995, the Federal Communications Commission approved a settlement of all the outstanding complaints that had been filed against cable systems owned by subsidiaries of Cox Communications, Inc. and Times Mirror Cable Television, Inc., regarding the rates charged for cable programming services. The Federal Communications Commission determined that it was in the best interests of all the subscribers and the cable operators to resolve all the pending rate complaints in a single global settlement. In January, 1996, seven Cities, all of which are local franchising authorities in Orange County, California, appealed the Commission's decision to approve the settlement of the rate complaints against the former Times Mirror systems. The Commission and Cox each believe that the Commission had the authority to approve the settlement, but the Cities believe that the Commission acted beyond its authority. The parties continue to maintain their positions, and there has been no determination that the Commission or Cox acted improperly, that the cable rates in question were improper or unreasonable or that cable rate refunds are owed. The Cities have determined that it is in the best interests of the cable subscribers to resolve the case and to avoid the cost, delay and uncertainty of this litigation. Cox, too, would like to put the dispute behind it and continue to provide service to its subscribers. Accordingly, the Cities and Cox have agreed to a settlement in which Cox will distribute a sum of money to the Cities, and the Cities will dismiss the case. The specific amount to be allocated to each City will be available shortly. The distribution of the settlement amount will be in the form of credits to current subscribers, which Cox will arrange for the convenience of the parties.