TCI Cablevision
MOUNTAIN DIVISION
CABLE SIGNAL DELIVERY AGREEMENT
SHARED TENANT SERVICES
THIS AGREEMENT ("Agreement") is made and entered into this 1ST day of SEPTEMBER,
1996 by and between TCI Cablevision of Oregon, Inc, hereafter referred to as
"Company" and FirstLink hereafter referred to as the "Operator"
WITNESSETH:
WHEREAS, Company owns and operates a cable television system in the City of
Portland, county of Multnomah, state of Oregon, and receives at its "Headend"
certain off-air television broadcast signals and satellite cable signals all of
which are more fully described in EXHIBIT A attached hereto and which may
include any other set of signals that Company may, from time to time, offer to
the subscribers in the local franchise area (the "Signals"); and
WHEREAS, Operator owns and operates shared tenant services Systems in
certain private property multiple-family systems in Portland, state of Oregon
(the "Systems") and desires to obtain from Company the Signals for distribution
on the System; and
WHEREAS, Operator understands that it has sole responsibility for securing
and retransmitting the Signals in compliance with applicable laws, rules and
regulations and is responsible for obtaining any other approvals necessary to
lawfully retransmit the Signals on the Systems.
NOW, THEREFORE, in consideration of the following agreements, covenants,
promises and other good and valuable consideration , the parties hereto, hereby
agree as follows;
1. SIGNAL DELIVERY
The multiple family residential properties, as more fully set out in
EXHIBIT C, which Exhibit may from time to time be amended (the
"Properties"), within the geographical boundaries of the Company's
franchised area, lists the Systems for which the Company will deliver the
Signals.
3-96 1 t/f/g
TCI Cablevision
MOUNTAIN DIVISION
2. SIGNAL RECEPTION
Operator shall, at its sole cost and expense, connect the Systems to the
demarcation point or other mutually agreeable location on the multiple
dwelling unit premises (the "Demarcation Point"), See Exhibit "C", for the
purpose of receiving Company's signal. Company agrees that all equipment
for transporting the Signals to the Demarcation Point and all Signals so
transported shall be of a high quality, shall comply with the standards for
cable television equipment prescribed by the Federal Communications
Commission of the United States (the "FCC") and shall be constructed and
maintained at all times in a manner which will not cause interference with
other frequency usage in and around the surrounding area. Operator agrees
that the connection to the Company's equipment at the Demarcation Point and
all other feeder and drop cable comprising the System shall be maintained
to provide a high quality signal and comply with the standards for cable
television equipment prescribed by the FCC and shall be maintained at all
times in a manner which will not cause interference with other frequency
usage in and around the surrounding area.
3. SIGNAL DISTRIBUTION
Operator agrees that distribution of the Signals over the Systems shall be
provided only to Operator's subscribers located on the Properties and shall
not be used for any other purpose. Operator further agrees that certain
Signals over the Systems must be "blacked out pursuant to Company's
obligation to follow syndication regulations or other contractual, legal or
regulatory obligations (see EXHIBIT A).
4. MANDATORY APPROVALS
Prior to delivering the Signals to subscribers Operator for distribution on
the Properties, the Company must, at a minimum, obtain written agreements
from the respective owner(s) of the Properties (the "Right of Entry
Agreement"), granting Operator the right to construct, install, operate,
maintain, repair, and remove cable, wiring and other related equipment on
such properties.
5. PROGRAMMING CONTENT OF THE SIGNALS
Company shall in no way be held responsible for, nor liable to, Operator's
subscribers or any other person with respect to the content and material of
the Signals supplied by Company to the Systems otherwise in compliance with
this Agreement. Signals supplied by Company are subject to change Company
reserves the right, after 30 days written notice to Operator to modify, add
to and/or delete any of the Signals or combinations thereof, so long as and
only to the extent that such modifications and/or deletions are consistent
with changes made generally to the Signals in the Company's corresponding
franchise area; provided, however, that the monthly fee payable to the
Company shall be proportionately reduced if the total number of the
channels or signals decrease from that set forth in EXHIBIT A. The Signals
supplied by the Company pursuant to this Agreement are subject to the
Company's and/or its affiliate's agreements with applicable programmers
and/or program suppliers. The Company agrees to provide at all times during
the term hereof all of the signals provided by the Company in the franchise
area in which each Property is located, however, so long as Operator or the
property owner maintains adequate monitoring of on demand or pay-per-view
signal.
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TCI Cablevision
MOUNTAIN DIVISION
6. PAYMENT FOR BASIC SIGNAL DELIVERY
(a) Operator agrees to pay to Company monthly, during the term of this
Agreement the rate per EXHIBIT B, for broadcast and satellite basic and
expanded cable Signals multiplied by the number of subscribers at the
Properties, prorated for any partial month.
(b) All payments due Company shall be due on or before the 30th day of
each month after inception of basic and expanded cable Signals by Company
to such Properties. The initial rates described herein are guaranteed not
to increase for twelve (12) months from the inception of broadcast and
satellite basic and expanded cable Signals by Company to such Properties.
(c) Paragraph (a) above not withstanding but subject to paragraph (b)'s
requirements that the initial rates shall not increase for twelve (12)
months, should C6mpany be required to change its rates, pursuant to rules,
regulations, or guidelines issued by the FCC, Operator agrees that it will
cooperate in amending this Agreement to such extent as required for Company
to remain in compliance with such rules, regulations, or guidelines.
(d) Commencing on the 13th month after inception of broadcast and
satellite basic Signals and annually thereafter, during the term of this
Agreement, the rates may be increased by Company by the same percentage
base as the monthly charge for cable television service is increased
generally to other customer in Company's local franchise area, not to
exceed five percent (5%). The Company's' delay or failure to implement a
rate increase in any year is not a waiver of the right to implement an
increase or an aggregate increase subsequently.
7. PAYMENT FOR PREMIUM SIGNALS
Operator agrees to pay to Company monthly, during the term of this
Agreement the individual rate applicable to each premium signal set forth
in EXHIBIT A for each subscriber of such service(s), and further agrees to
report to Company, no later than the 30th day after the end of each month
during the term hereof, the total number of premium signal subscribers per
each respective service per Property (see EXHIBIT D). The initial premium
rates described herein are guaranteed not to increase for twelve (12)
months from the inception of broadcast and satellite of premium signals by
Company to each Property. Ml payments and rate increases for premium signal
shall be subject to the rate increase limitations described in Section six
above.
8. WIRE MAINTENANCE
Operator will provide the initial response to requests for repair and to
trouble reports made by residents in each Property. If Operator determines
that the source of the service problem is not on the Operators side of the
mutually agreed upon demarcation point, See Exhibit "C", then Operator will
refer the service call to the Company. The Company will respond to the
request for service from the Operator within the time provided by federal
regulation, or by local franchise or regulation if the local franchise area
has a service call response standard that applies to Operator.
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TCI Cablevision
MOUNTAIN DIVISION
If Company determines that Operator is not maintaining facilities or
responding to residents' requests for service or repair in a reasonably
satisfactory manner, Company may respond to requests for repair and to
trouble reports. In that event, Operator will pay Company's then-prevailing
rate for such services.
9. CUSTOMER INFORMATION
Company will provide channel cards and other similar customer literature in
sufficient quantities to allow Operator to distribute such information to
residents of the Properties. Operator agrees to distribute promptly such
information as may apply to Services provided to the Properties.
10. CONVERTERS
Company will provide converters to Operator for distribution to residents
on the Properties. Operator acknowledges and understands the signal
security issues inherent in the possession and distribution of Company's
converters and agrees to:
(a) pay a reasonable deposit for each converter it distributes or has in
its possession;
(b) maintain accurate records of residents' names, addresses and the serial
number of the converter issued to them;
(c) to use its best efforts to recover converters from residents who no
longer are receiving Services, said efforts to include but not be limited
to providing information to Operator to allow Operator to pursue recovery
of the converter; and
(d) after Services are established initially in each Property to maintain
in its possession for distribution no more than three converters per
Property, any surplus converters to be returned to Operator expeditiously.
11. TERM
This Agreement shall remain in effect for an initial term of sixty (60)
months from September 1, 1996 and shall be automatically renewed for
subsequent successive twelve month terms unless terminated by either party
by written notice given to the other party at the address shown herein (or
such other address as is subsequently provided by writing to the notifying
party by the other party) by certified or registered mail at least ninety
(90) days prior to the expiration of the then existing term.
12. CREDITS FOR NON-DELIVERY
In the event that the Signals to the Demarcation Point are interrupted or
significantly impaired for 24-consecutive hours (the "Interrupted Period")
Company shall provide Operator credit equal to 1/30th of the total monthly
service fee due from Operator for each such Interruption Period, applicable
to the Property or Properties which suffered such an interruption or
significant impairment of the Signals.
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TCI Cablevision
MOUNTAIN DIVISION
13. REPRESENTATIONS AND WARRANTIES
Operator represents and warrants that it is a Corporation in good standing
and validly existing under the laws of the State of * , that it owns,
operates, and controls the Systems on the Properties and that it holds and
maintains all necessary governmental permits required to own and operate
the System. Company represents and warrants to Operator that it is an
Oregon corporation in good standing and validly existing under the laws of
the State of Oregon, that it owns, operates, and controls the Headend and
that it holds and maintains all necessary governmental permits and
contractual rights required to own and operate the Headend and to receive
and transmit the Signal to the Demarcation Point. Each party represents
that the person signing below on its behalf has full power and authority to
enter into this Agreement.
14. INDEMNIFICATION
(a) Operator agrees to indemnify, defend and hold harmless Company, its
officers, employees, subsidiaries and affiliates from and against any and
all claims, demands, suits, and judgments for any and all damages, losses,
and expenses (including attorney's fees) representation, warranty, or
agreement made by Operator herein and/or (ii) retransmission of the Signals
to Operator's subscribers, unless caused by or arising out of a breach by
Company of this Agreement.
(b) Without limiting the foregoing, Operator agrees that it shall
indemnify, defend and hold harmless Company from and against any liability
arising out of any failure by Operator to maintain the Systems in
accordance with FCC signal leakage standards.
(c) Company agrees to indemnify, defend, and hold harmless Operator, its
subsidiaries and affiliates, and their respective officers, directors, and
employees from and against any and all claims, demands, suits and judgments
for any and all damages losses, and expenses (including attorney's fees)
arising from or relating to a breach of any representation, warranty, or
agreement made by Company herein, without limiting and foregoing Company
agrees to indemnify, defend or hold harmless Operator from or against any
liability arising out of any failure by Company to operate and maintain the
Headend and the transmission of the Signals in accordance with FCC
Regulations or requirements and/or to obtain the mandatory approvals
required in section four hereof
(d) In the event Company, in its sole discretion, determines that it is
subject to additional copyright and/or performance rights liability as a
result of this Agreement, Operator shall deliver to Company within ten (10)
days after receipt of a detailed statement from Company setting forth such
additional copyright liability and/or music performances rights liability,
the amounts reflected therein.
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TCI Cablevision
MOUNTAIN DIVISION
15. SECURITY CHANNEL INDEMNIFICATION
If applicable, Operator agrees to indemnify, defend, and hold harmless
Company, its subsidiaries and affiliates, and their respective officers,
directors and employees from and against any and all claims, demands, suits
and judgments for any and all damages, losses, liabilities and expenses
(including attorney's fees) arising from or relating to the installation,
training and subsequent use of a security camera system and security
channel(s) by Operator expressly for Operator's subscribers located on the
Properties.
Company shall in no way be held responsible for, nor liable to, Operator,
Operator's subscribers or any other person with respect to the operation or
failure of any security channel(s), cameras, related equipment or devices
that may be installed by Company, Operator or third parties and operated on
the System.
Such indemnification of Company by Operator shall, without limitation,
extend to:
prohibition by Company's cable programmers against programming deletion or
interruption; interruption of the Emergency Alert System channel or
channels as required by the Federal Communications Commission; and to
claims by third parties.
Operator must, at the direction of Company, reposition security channels or
channels and, suspend or discontinue provision of security channel(s) if,
in the sole opinion of Company, such continued provision affects Company's
Signal delivery, or in any way affects Company's compliance with any
applicable federal law or regulation.
In the event a security channel is used on the System for the benefit of
Operator's subscribers, Operator shall obtain and maintain in full force
and effect throughout the initial term and any renewal term, with reputable
insurers qualified to do business in the state in which the Properties are
located, general liability insurance in amounts of not less than $500,000
for injury to any one person, $500,000 aggregate for any single occurrence,
and $500,000 for property damage. Such policies shall name Company as
additional insured. Operator shall provide Company a certificate of
insurance at the commencement of this Agreement and annually thereafter
evidencing such coverages.
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TCI Cablevision
MOUNTAIN DIVISION
16. TERMINATION
(a) Either party hereto shall have the right to terminate this Agreement
in Accordance with the following:
(i) Upon default of any provision set forth herein, if such
default is not cured within thirty (30) days after receipt of written
notice from the none defaulting party of the nature of such default;
or
(ii) Immediately upon at least ninety (90) days written notice to
the other party, if, in either party's sole reasonable opinion, the
service contemplated herein is deemed to violate any existing or
future law, rule or regulation of the United States or the State of
Oregon, or there is any materially negative action taken or threatened
action against either party by any other party whatsoever arising out
of the performance, by either party of the terms and conditions of
this Agreement provided that prior to any such determination the
parties shall cooperated in good faith to amend this Agreement, if
reasonably possible so as to avoid such violation or negative action;
or
(iii) By Operator upon at least thirty (30) days written notice to
Company if Company is no longer providing hereunder Signals that are
competitive in the market where the Properties are located, or
(b) It is understood and agreed that the indemnification provided pursuant
to Section 11 above, shall survive the expiration or earlier termination of
this Agreement.
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TCI Cablevision
MOUNTAIN DIVISION
17. NOTICES
(a) Each party agrees, it shall promptly notify the other if any station,
network, sports league, music licensing organization, performer,
representative, government entity, or other party objects to or contests
the right of Company to deliver the Signals to Operator or the right of
Operator to retransmit the Signals to the System subscribers.
(b) Any notices required pursuant to this Agreement shall be validly given
or served if in writing and sent by overnight courier, registered or
certified mail, postage prepaid, to the following addresses:
If to Company:
XXX Xxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Division President
With copies to:
XXX Xxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Legal Department
System Address and Contact:
Xxxxxx Xxxxxx
0000 X. X. Xxxx Xxxxxx
Xxxxxxxx, XX. 00000
If to Operator:
Xxxxx Xxxxx c/o FirstLink:
000 X. X. Xxxxxxxx, Xxxxx x-X
Xxxxxxxx, XX. 00000
or to such other addresses as either party may designate to the other in
writing. delivery of any notice shall be deemed to be effective upon
receipt if sent by overnight courier or on the date set forth on the
receipt of the registered or certified, mail, sent as stated above.
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TCI Cablevision
MOUNTAIN DIVISION
18. MISCELLANEOUS
(a) WAIVER
The waiver by either party of a breach or violation of any provision
of this agreement shall not operate or be constructed as a waiver of
any subsequent or continued breach or violation.
(b) INTEGRATION
This writing represents the entire agreement of the parties hereto
with respect to the subject matter hereof, and may not be altered or
amended except by an agreement in writing signed by both parties.
(c) APPLICABLE LAW
This Agreement shall be governed by and be construed in accordance
with the laws of the State of Oregon and federal laws of the United
States of America.
(d) ASSIGNMENT
This agreement may be assigned by either party with the prior written
consent of the other, which consent shall not be unreasonably
withheld.
(e) SEVERABILITY
If any provision of this Agreement or the application thereof to any
person or circumstance is, to any extent, held in any proceeding to be
invalid or unenforceable, the remainder of this Agreement, or
circumstances other than those to which it was held to be invalid or
unenforceable, shall not be affected thereby; provided, however, that
Company many immediately terminate the Agreement and its obligations
thereunder if the indemnification provisions set forth in section
twelve (12) are rendered invalid or unenforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
TCI CABLEVISION OF OREGON, INC. FIRSTLINK COMMUNICATIONS, INC.
By: By: /s/ A. Xxxxx Xxxxx
--------------------------------- --------------------------------
Name: Name: A. Xxxxx Xxxxx
------------------------------- ------------------------------
Title: Title: CEO
------------------------------ -----------------------------
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TCI Cablevision
MOUNTAIN DIVISION
NOTARIZATION OF OPERATOR/AUTHORIZED AGENT SIGNATURE
SEAL
STATE OF OREGON * )
)SS
COUNTY OF MULTNOMAH * )
On AUGUST 15, 1996, before me, a Notary Public in and for said State,
personally appeared, A. XXXXX XXXXX known to me to be the C.E.O. of the
corporation that executed the within Instrument, known to me to be the person
who executed the within Instrument on behalf of the corporation therein named as
Owner and acknowledged to me that such corporation executed the within
Instrument pursuant to its by-laws or resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
Notary Public: /s/ Xxxxxxx X. Xxxx
--------------------------------
Residing In: Oregon
----------------------------------
My Commission Expires: Dec. 11, 1999
-------------------------
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TCI Cablevision
MOUNTAIN DIVISION
NOTARIZATION OF TCI CABLEVISION OF OREGON, INC. ("COMPANY")
*
STATE OF )
)SS
*
COUNTY OF )
On_________________________1996, before Me, a Notary Public in and for said
State, personally appeared Xxxxx X. Xxxxxxxx, known to me to be the Division
President of the West Division of the corporation that executed the within
Instrument, known to me to be the person who executed the within Instrument on
behalf of the corporation therein named as COMPANY and acknowledged to me that
such corporation executed the within Instrument pursuant to its by-laws or a
resolution of its board of directors.
WITNESS my hand and official seal.
Notary Public:
-----------------------------
Residing in:
-------------------------------
My Commission Expires:
---------------------
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TCI Cablevision
MOUNTAIN DIVISION
EXHIBIT A
2 QVC
3 KBSP (HSN)
4 KATU (ABC)
5 HBO
6 KOIN (CBS)
7 C-SPAN II
8 KGW (NBC)
9 C-SPAN
10 KOPB (PBS)
11 ACCESS: Community
12 KPTV
13 KPDX (Fox)
14 SHOWTIME
15 THE MOVIE CHANNEL
16 HEADLINE NEWS
17 CNN
18 CNBC
19 THE WEATHER CHANNEL
20 fX
21 THE DISNEY CHANNEL
22 NICKELODEON
23 ARTS & ENTERTAINMENT
24 PRIME SPORTS NW
25 ESPN
26 TNT
27 USA
28 STARZ!
29 ENCORE
30 ACCESS: Government
31 ACCESS: Education
32 KEBN
33 ACCESS: Community
34 TBS (Atlanta)
35 WGN (Chicago)
36 MTV
37 VH-1
38 LIFETIME
39 THE FAMILY CHANNEL
40 THE NASHVILLE NETWORK
41 COMEDY CENTRAL
42 COURT TV
43 THE DISCOVERY CHANNEL
44 THE LEARNING CHANNEL
45 NORTHWEST CABLE NEWS
46 INTRO TELEVISION
47 AMERICAN MOVIE CLASSICS
48 KNMT (TBN)
49 FAITH & VALUES
50 SCI-FI CHANNEL
51 UNIVISION
52 TCI LOCAL PROGRAMMING
53 ACCESS: Education
54 BLACK ENTERTAINMENT TV
55
56
57
58 SNEAK PREVUE
59 TV GUIDE/ON SCREEN
60 CINEMAX
* 63 ESPN2
*64 CARTOON NETWORK
*65 E!
*66 INTERNATIONAL CHANNEL
*67 COUNTRY MUSIC TELEVISION
69 THE BOX
70 HOME AND GARDEN NETWORK
71 AMERICA'S TALKING
72 LIBERTY SPORTS SHOWCASE
73 THE HISTORY CHANNEL
74 TV FOOD NETWORK
75 THE TRAVEL CHANNEL
77 LEASED ACCESS
* A la Carte Service (Not available in these zip code areas: 97201, 204, 205,
209 210, 219, 221.) Channels 69 - 77 not available in non-graded areas.
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TCI Cablevision
MOUNTAIN DIVISION
EXHIBIT B
Notwithstanding anything to the contrary contained in this Agreement, all cable
programming and television off air broadcasting along with respective channel
locations thereof below, are subject to change, addition, deletion and/or
modification by the Operator in accordance with Operator notification procedures
in the community.
RATES PER UNIT
BASIC & EXPANDED BASIC $ 13.55
PREMIUMS
HOME BOX OFFICE $ 8.50
CINEMAX $ 8.50
SHOWTIME $ 8.50
THE MOVIE CHANNEL $ 8.50
THE DISNEY CHANNEL $ 8.50
ENCORE $ 1.50
STARZ! $ 3.50
DELETED PROGRAMMING
DIGITAL MUSIC EXPRESS
THE SEGA GAME CHANNEL
FRANCHISE FEES & TAXES
ALL RATES ARE INCLUSIVE OF LOCAL FRANCHISE FEES AND TAXES.
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TCI Cablevision
MOUNTAIN DIVISION
EXHIBIT C
The Properties
Vista St. Clair
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
248 Units
Demarcation Point: Company and Operator agree that the demarcation point shall
be the tap box located on each building. Operator shall be responsible from the
tap to the inside of the unit.
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TCI Cablevision
MOUNTAIN DIVISION
EXHIBIT D
PREMIUM PAY CHANNEL MONTHLY REPORT
Name of Operator:
--------------------------------------------------------------
Service Month:
-----------------------------------------------------------------
Year:
--------------------------------------------------------------------------
Name of Complex:
---------------------------------------------------------------
Address:
-----------------------------------------------------------------------
City, State:
-------------------------------------------------------------------
Total Number of Units:
---------------------------------------------------------
NUMBER OF UNITS OBTAINING SERVICE TYPE OF SERVICE
HOME BOX OFFICE
CINEMAX
SHOWTIME
THE MOVIE CHANNEL
THE DISNEY CHANNEL
ENCORE
STARZ
CERTIFICATION AS TO ABOVE INFORMATION:
THE UNDERSIGNED, a duly authorized officer or representative
of__________________, does hereby certify and represent that the above
information is true and correct, and further understands that any false or
misleading information or intentional mis-reporting herein, may be grounds for
termination of the above referenced Cable Signal Delivery Agreement.
Date: By:
----------------------- ------------------------------
Its:
-----------------------------
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