HomeMy WebLinkAboutStaff Report 2289
City of Palo Alto (ID # 2289)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 11/5/2012
City of Palo Alto Page 1
Summary Title: I-Net Agreement with Comcast
Title: Approval of Agreement Between the City of Palo Alto on Behalf of the
Cable Joint Powers Agency and Comcast Corporation of California IX, Inc. For
The Use of Fiber; Approval of Agreement Between the City of Palo Alto on
Behalf of the Joint Powers and the Cities of Palo Alto, East Palo Alto and
Menlo Park, and the Town of Atherton for Storage and Operation of I-Net
Equipment; and Approval of Agreement Between the City of Palo Alto on
Behalf of the Joint Powers and the Palo Alto Unified School District, the
Ravenswood City School District, the Menlo Park City School District, the Las
Lomitas Elementary School District, and the Sequoia Union High School
District Covering Shared I-Net Responsibilities; and Approval of Agreement
Between the City of Palo Alto on Behalf of the Joint Powers and Internet
Systems Consortium, Inc. Covering the Provision of Internet Services to I-Net
Connected Institutions
From: City Manager
Lead Department: IT Department
Recommendation
Staff recommends that Council:
1) Approve an agreement between the City of Palo Alto on behalf of the Cable Joint Powers
Agency and Comcast of California IX, Inc. for the use of fiber in the amount of $29,148.24
per year for a period of five years.
2) Approve an agreement between the Cable Joint Powers Agency and the cities of Palo Alto,
East Palo Alto and Menlo Park, and the Town of Atherton for storage and operation of
institutional network equipment.
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3) Approve five agreements between the City of Palo Alto on behalf of the Cable Joint Powers
Agency and the Palo Alto Unified School District, the Ravenswood City School District, the
Menlo Park City School District, the Las Lomitas Elementary School District, and the Sequoia
Union High School District, respectively, covering shared institutional network
responsibilities.
4) Approve an agreement between the City of Palo Alto on behalf of the Cable Joint Powers
Agency and Internet Systems Consortium, Inc. covering the provision of Internet Services to
institutional network connected institutions.
Background
In July 1983, the cities of Palo Alto, Menlo Park, East Palo Alto, the Town of Atherton, and
portions of the County of San Mateo and the County of Santa Clara created a Joint Powers
Agency (JPA) for the purpose of obtaining cable television service within these jurisdictions.
The parties gave the City of Palo Alto the sole authority to act as the administrative agency for
the JPA.
In 2000, the City entered into a franchise agreement with AT&T. In 2002, the franchise was
transferred to Comcast Corporation. The 2000 franchise agreement required Comcast to
complete an upgrade of the cable system, which included the construction of a dark fiber optic
institutional network (I-Net). This network connects 70 public schools, public buildings and
community centers in the JPA service area for delivery of data, video and voice services.
Comcast finalized construction of the I-Net at the end of 2005.
In 2006, the JPA designed the network architecture and purchased equipment (in the amount
of $1.1 million) for the I-Net. At the present time, the following I-Net connections are active (or
being activated), as follows:
City of Palo Alto: hub connection
City of Menlo Park: 3 site connections & hub connection
City of East Palo Alto: 3 site connections & hub connection
Town of Atherton: 2 site connections to be activated & hub connection
Palo Alto Unified School District: 17 site connections
Ravenswood City School District: 9 site connections
Menlo Park City School District: 4 site connections
Las Lomitas Elementary School District: 3 site connections
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Sequoia Union High School District: 1 site connection
Media Center: public, education, and government channel connections
The heaviest users of the I-Net are the schools in the JPA service territory, with approximately
80 percent of the active connections. The I-Net has given schools significantly greater
bandwidth and network performance, and schools utilize the I-Net as their primary
telecommunications network. Community members use the I-Net to create and distribute
programs on the local area public channels that promote and celebrate individual expression,
local achievements, education, cultural exchange, arts appreciation, and civic engagement.
The I-Net also supports the broadcast capabilities of the local area Media Center. The Media
Center is responsible for operating and managing the JPA’s public, education, and
governmental channels (channel numbers 26, 27, 28, 29, 30, 75, and 76) and facilities.
Discussion
On January 1, 2007, the Digital Infrastructure and Video Competition Act of 2006 (DIVCA) went
into effect. This new law permanently changed the franchising and regulatory structure for the
provision of cable television services in California. Under DIVCA, franchises are granted by the
California Public Utilities Commission (CPUC) rather than by local governments. On January 2,
2008, Comcast was granted a state franchise by the CPUC. As a state franchisee, Comcast is not
obligated to provide I-Net facilities or services, after July 24, 2010, the date the local cable
franchise expired.
Since December 2009, City staff representatives have negotiated with Comcast for the
continued provision of the I-Net fiber. Staff has reached a proposed fiber use agreement with
Comcast (Attachment A). The key terms of the agreement are discussed below.
Term: The agreement is effective for a period of 5 years (through 2017).
Rate: The fiber will be charged at a rate of $75 per fiber mile per month.
Amount: The total annual cost is $29,148.24, for a total cost not-to-exceed $145,741.20.
Core Fiber: The agreement covers I-Net core fiber that is shared by all of the I-Net users.
This fiber connects the four I-Net hubs (located in the City of Palo Alto, the City of East
Palo Alto, the City of Menlo Park and the Town of Atherton). A drawing of the I-Net
fiber, including the core fiber, is provided in Attachment D.
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Site Fiber: The agreement covers site fiber that serves JPA sites in the City of East Palo
Alto (Corporation Yard, Housing and Community Service Department, Police
Department), the City of Menlo Park (Onetta Harris Community Center/Belle Haven
Senior Center, Belle Haven Police Substation, Belle Haven Child Development Center)
and the Town of Atherton (Library, Holbrook-Palmer Park). The City of Palo Alto does
not utilize any site fiber. The site fiber that serves the schools is not covered in this
agreement. The School Districts have executed separate agreements with Comcast
covering their use of I-Net site fiber.
PEG Fiber: DIVCA contains provisions designed to preserve and protect the continued
provision of local public, education, and governmental (PEG) programming. Comcast
has agreed to provide the PEG fiber that serves the connections to the Media Center at
no charge.
Agreement for Storage and Operation of I-Net Equipment
The JPA has routing and switching equipment located at the four I-Net hubs as follows: 1) the
City of Palo Alto hub; 2) in the City of Menlo Park hub; 3) in the City of East Palo Alto hub; and
4) Town of Atherton hub. The proposed Agreement for Storage and Operation of the I-Net
Equipment (Attachment B) grants the JPA the right to store and operate this equipment within
each JPA member’s jurisdictional boundary and to install, maintain, repair and remove the
equipment as needed.
Agreement with JPA-area School Districts
Because of the uncertainty regarding the future of the I-Net, the I-Net users made a decision
not to develop long-term plans for network operations, maintenance, and replacement needs.
Following approval of the I-Net Agreement with Comcast, long-term plans will be developed.
The proposed Agreement with JPA-area School Districts makes it clear that any costs associated
with operation and maintenance of the I-Net would be shared by I-Net participants. The
Agreement also delineates ownership and responsibility for I-Net equipment. This agreement
has already been signed by the five JPA-area School Districts. A representative agreement for
the Palo Alto Unified School District is attached (Attachment C).
Agreement with ISC for the Provision of Internet Services
At the present time, Internet Systems Consortium (ISC) provides fee free Internet Service to
JPA-area School Districts and the Media Center via the I-Net. The Schools and the Media Center
would like to enter into formal agreements with ISC for this Service. The JPA plans to use its
best efforts to facilitate written agreements between the parties. The JPA makes no
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commitment that its efforts will be successful. In the meantime, the proposed agreement with
ISC (Attachment E) covers the provision of Internet Services to I-Net connected institutions.
Resource Impact
The JPA members have set aside money, in a Cable Fiduciary Fund, to sustain I-Net
functionality. These funds total approximately $725,000 and will be used to pay for the fiber
use agreement with Comcast. These funds will also be used to pay the JPA’s share of I-Net
operational and maintenance costs. The JPA receives franchise fees of $1.6 million annually,
should additional funds be needed in the future to support the I-Net.
Attachments:
Attachment A - Agreement with Comcast for Use of Fiber (PDF)
Attachment B - Agreement for Storage & Operation of INET Equipment (PDF)
Attachment C - Letter Agreement with Schools (PDF)
Attachment D - I-Net Drawing (PDF)
Attachment E - Letter Agreement with ISC (PDF)
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ATTACHMENT B
AGREEMENT FOR STORAGE AND OPERATION OF
INSTITUTIONAL NETWORK EQUIPMENT
This Agreement for Storage and Operation of Institutional Network
Equipment (the “Agreement”), dated as of _________, 2012 (the “Effective Date”), is
entered into by _______________________________________, a _____________ (the
“JPA Member”), and the Cable Joint Powers, a California joint action agency organized
and existing under the Joint Exercise of Powers Act, California Government Code section
6500 et seq. (the “JPA”)(individually, a “Party” and, collectively, the “Parties”), in
regard to the following facts and circumstances:
RECITALS:
A. In 1983, the cities of Palo Alto, East Palo Alto and Menlo Park, the town
of Atherton, and the counties of San Mateo and Santa Clara executed a joint powers
agreement (the “JPA Agreement”) for the purpose of creating a joint powers agency,
charged with issuing a community antenna television franchise agreement (the
“Franchise Agreement”) and facilitating the provision of cable services in a service area,
covering the jurisdictional boundaries of the JPA Members.
B. In 2000, the JPA granted a Franchise Agreement to TCI Cablevision of
California, Inc., now Comcast of California IX, Inc. (“Comcast”). Under the Franchise
Agreement, provision is made for an institutional network (“I-Net”), consisting of public,
education and government (“PEG”) head-end links and I-Net links. The JPA required
Comcast to provide funding to acquire and support the I-Net equipment and to provide
for the distribution of PEG programming to subscribers over the I-Net. The Franchise
Agreement authorizes the City of Palo Alto (the “City”), as administrator for the JPA, to
designate a community access organization (the “CAO”) to manage the PEG channels.
C. The I-Net connects public schools, public buildings and community
centers in the JPA’s service area. The heaviest users of the I-Net are the public schools.
The public schools utilize the I-Net as their primary telecommunications network and, as
a consequence, public schools located in the JPA service area were afforded the
opportunity to avoid leased line telecommunications costs, and gain significantly greater
bandwidth and network performance. Community members use the I-Net to create and
distribute programs on the PEG channels that promote and celebrate individual
expression, local achievements, education, cultural exchange, arts appreciation, and civic
engagement.
D. Each JPA Member has certain I-Net routing and switching equipment (the
“I-Net Equipment”) that are owned by the JPA, yet are located within the JPA Member’s
jurisdictional boundary. The JPA wishes to receive from each JPA Member the right and
permission to store and operate (including install, maintain, repair, remove and replace)
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the JPA’s I-Net Equipment within each JPA Member’s jurisdictional boundary, and
enjoy the right of ingress and egress to install, maintain, repair and remove the I-Net
Equipment located within each JPA Member’s jurisdictional boundary.
IN CONSIDERATION OF the recitals and following covenants, terms and
conditions, the Parties agree, as follows:
AGREEMENT:
1. The Recitals of this Agreement constitute a part of and are integrated in to
this Agreement.
2. The term of this Agreement shall commence on _______________, ____,
and shall continue for a term of five years.
3. The JPA Member hereby grants to the JPA and its representatives, agents
and contractors, including, without limitation, the City, as the JPA administrator, (A) the
right of ingress and egress to any building of structure owned by the JPA Member, which
houses the I-Net Equipment, upon reasonable prior notice to the JPA Member, and (B)
the right to install, maintain, repair, remove and/or perform other work in connection
with the I-Net Equipment within the JPA Member’s jurisdictional boundary. The JPA
Member agrees to maintain connectivity of the I-Net Equipment with Comcast’s dark
fiber optic backbone located within the JPA Member’s jurisdictional boundary, and
furnish power to the I-Net Equipment at the JPA Member’s sole cost and expense.
4. By acceptance of this Agreement, the Parties expressly understand and
agree that the JPA will not indemnify, defend and hold harmless the undersigned JPA
Member from and against any and all liability, loss, or damage, which may be suffered or
incurred by the JPA Member in connection with the Parties’ exercise of rights and
performance of obligations under this Agreement, except to the extent such liability, loss
or damage arises as a result of the JPA’s negligence or willful misconduct.
5. Except as otherwise provided herein, neither the JPA nor the JPA Member
shall be required to provide insurance coverage which extends to acts and omissions of
each Party hereto in connection with this Agreement, and each Party represents and
warrants that it does self-insure against any and all liability, loss and damage in the
ordinary course and scope of conducting its business.
6. The duties of a Party shall be not assigned or transferred to any third party
without the express written approval of the other Party. Any unapproved assignment or
transfer will be null and void.
7. A waiver by a Party of any breach or violation of any covenant, term or
condition of this Agreement or of the provisions of any ordinance or law shall not be
construed to be a waiver of performance of any other covenant, term, condition,
ordinance or law, or of any subsequent breach or violation of the same. The acceptance
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by a Party of any payment or damages which may become due hereunder will not be
deemed to be a waiver of any subsequent breach or violation by the other Party of any
covenant, term, condition, ordinance or law.
8. This Agreement may be terminated upon the occurrence of an “event of
default” by a Party (the “Defaulting Party”). An “event of default” will constitute a
material breach of this Agreement, if it is not cured in a timely manner.
8.1 The term “event of default” means the occurrence of any of the following:
(a) the failure to perform any material covenant, or obligation set forth in this Agreement
or any Exhibit, if such failure can be readily remedied and is not remedied within thirty
(30) days after written notice of default is given; (b) a Party files a petition or otherwise
commences or acquiesces in the commencement of a proceeding under any bankruptcy,
insolvency, reorganization or similar law, makes an assignment for the benefit of its
creditors, has an administrator, receiver, trustee, conservator or similar official appointed
with respect to it or any substantial portion of its property or assets, or is generally unable
to pay its debts as they fall due; (c) the transfer of this Agreement or any material
obligation arising under this Agreement and the Exhibits, whether voluntarily or by
operation of law, without the consent of the other Party; and (d) the failure to make, when
due, any payment required by this Agreement if such failure is not remedied within ten
(10) business days after written notice of default is given.
8.2 If an event of default occurs and is continuing with respect to the
Defaulting Party, the other Party (the “Non-Defaulting Party”) will have an election of
rights and remedies, in addition to all other rights and remedies afforded or provided by
law or in equity or as otherwise provided in this Agreement, to which the non-defaulting
Party may resort cumulatively, or in the alternative: (a) the right to terminate this
Agreement by giving thirty (30) days’ prior notice of termination, in which event this
Agreement will terminate on the date set forth in the notice of termination; (b) the right
to demand performance of an act which otherwise cure the violation or any breach; and
(c) the right to suspend performance of any of its material obligations, including, without
limitation, the right to withhold any payments due to the Defaulting Party under this
Agreement.
9. A Party will be temporarily excused from the performance or further
performance of any of its covenants or agreements hereunder and such Party’s
nonperformance shall not be deemed an event of default under this Agreement for any
period to the extent that such Party is prevented, hindered or delayed for any period of
time not in excess of thirty (30) days from performing any of its covenants or
agreements, in whole or in part, as a result of an act of God, war, civil disturbance, court
order, or other cause beyond that Party’s reasonable control, including, without
limitation, any denial of access to the City’s facilities in order to perform the Services
and complete the Project. The Parties hereby agree to use reasonable efforts to remedy
the effects caused by the occurrence of the event giving rise to a Party’s temporary
nonperformance of its covenants or agreements under this Section. A Party will provide
notice promptly to the other Party to the extent that Party relies on the provisions of this
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Section to temporarily excuse its failure to perform any of its covenants or agreements
hereunder.
10. All notices required to be given hereunder shall be, in writing, and mailed,
postage prepaid, by certified mail, addressed, or e-mailed, as follows:
To JPA: JPA Administrator
c/o City of Palo Alto
Post Office Box 10250
Palo Alto, CA 94303
ATTN: Melissa Cavallo, Cable Coordinator
Melissa.Cavallo@CityofPaloAlto.org
To JPA MEMBER:
ATTN:
11. In the exercise of rights and performance of obligations, each Party acts at
all times as an independent contractor and not as an employee of the other Party.
Nothing in this Agreement shall be construed to establish a partnership, joint venture,
group, pool, syndicate or agency between the JPA and the JPA Member. No provision
contained herein shall be construed as authorizing or empowering either Party to assume
or create any obligation or responsibility whatsoever, express or implied, on behalf, or in
the name of, the other Party in any manner, or to make any representation, warranty or
commitment on behalf of the other Party. In no event will either Party be liable for (i)
any loss incurred by the other Party in the course of its performance hereunder, or (ii) any
debts, obligations or liabilities of the other Party, whether due or to become due.
12. If a dispute between the Parties arises under this Agreement, the Parties
will endeavor to resolve informally at a meeting of each Party’s designated
representatives who may be responsible for and exercise the appropriate authority to
resolve all disputes hereunder; and (b) if the Dispute remains unresolved after thirty (30)
days, the Parties agree that the dispute shall be submitted to the Franchise Review Board,
as such body is designated in the Franchise Agreement, which shall render a final
decision regarding such dispute.
13. The following miscellaneous provisions shall apply under this Agreement:
13.1 This Agreement will be governed by and construed in accordance with the
laws of the State of California. The Parties will comply with applicable laws pertaining
to their obligations arising under this Agreement.
13.2 In the event that an action is brought, the Parties agree that trial of such
action will be vested exclusively in the state courts of California or in the United States
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District Court for the Northern District of California in the County of Santa Clara, State
of California.
13.3 The prevailing party in any action brought to enforce the provisions of this
Agreement may recover its reasonable costs and attorneys' fees expended in connection
with that action.
13.4 If a court of competent jurisdiction finds or rules that any provision of this
Agreement, the Exhibits, or any amendment thereto is void or unenforceable, the
unaffected provisions of this Agreement, the Exhibits, or any amendment thereto will
remain in full force and effect.
13.5 All Exhibits referred to in this Agreement and any addenda, appendices,
attachments, and schedules that, from time to time, may be referred to in any duly
executed amendment hereto are by such reference incorporated in this Agreement and
will be deemed to be a part of this Agreement.
13.6 This Agreement may be executed in any number of counterparts, each of
which will be an original, but all of which together will constitute one and the same
instrument.
13.7 This Agreement represents the entire understanding and agreement
between the Parties and they supersede all prior negotiations, representations, and
contracts, either written or oral. This Agreement may be amended only by a written
instrument, which is signed by the Parties.
13.8 The Parties agree that the normal rule of construction to the effect that any
ambiguity is to be resolved against the drafting party will not be employed in the
interpretation of this Agreement or any Exhibit or any amendment thereof.
13.9 On the Effective Date, each Party represents and warrants to the other
Party that: (a) it is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its formation; (b) the execution, delivery and performance of this
Agreement and the Exhibits are within its powers, have been duly authorized by all
necessary action and do not violate any of its governing documents, any contracts to
which it is a party or any law, rule, regulation, or order; (c) the Agreement and the
Exhibits and any other document executed and/or delivered in accordance with this
Agreement constitutes its legally valid and binding obligation enforceable against it in
accordance with its covenants, terms, conditions and provisions; (d) it has not filed and it
is not now contemplating the filing for bankruptcy protection or, to its knowledge,
threatened against it which would result in it being or becoming bankrupt; (e) there is not
pending or, to its knowledge, threatened against it or any of its affiliates any legal
proceedings that could materially adversely affect its ability to perform its obligations
under this Agreement and the Exhibits; and (f) no event of default or potential event of
default with respect to it has occurred and is continuing and no such event or
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circumstance would occur as a result of its entering into or performing its obligations
under this Agreement and the Exhibits.
IN WITNESS WHEREOF, the Parties have by their duly authorized
representatives executed this Agreement and certain Exhibits, as appropriate, as of the
Effective Date.
JPA
________________________________
Name:
Title:
APPROVED AS TO FORM:
__________________________
APPROVED:
__________________________
Assistant City Manager
__________________________
Director of Administrative
Services
JPA MEMBER
________________________________
Name:
Title:
APPROVED AS TO FORM:
________________________________
Name:___________________________
Title:____________________________