HomeMy WebLinkAboutStaff Report 2407-3227CITY OF PALO ALTO
CITY COUNCIL
Special Meeting
Monday, October 07, 2024
Council Chambers & Hybrid
5:30 PM
Agenda Item
7.Approval of Dark Fiber License Agreement No. S24189080 with Adobe Creek Networks to
Build and License Dark Fiber in the Foothills, and Approval of a Fiscal Year 2025 Budget
Amendment in the Fiber Fund; CEQA Status – Exempt under CEQA Guidelines Section
15301 and 15303.
City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Utilities
Meeting Date: October 7, 2024
Report #:2407-3227
TITLE
Approval of Dark Fiber License Agreement No. S24189080 with Adobe Creek Networks to Build
and License Dark Fiber in the Foothills, and Approval of a Fiscal Year 2025 Budget Amendment
in the Fiber Fund; CEQA Status – Exempt under CEQA Guidelines Section 15301 and 15303.
RECOMMENDATION
Staff recommends that the City Council:
1. Approve and authorize the City Manager or their designee to execute the 10-year Dark
Fiber License Agreement (Please see Attachment A) with Adobe Creek Networks with a
new effective date starting 10/7/2024
2. Amend the Fiscal Year 2025 Budget Appropriation for the Fiber Fund (requires a 2/3
vote) by:
a. Increasing the Fiber Fund Revenue by $184,898; and
b. Increasing the Fiber Optic System Rebuild CIP (FO-16000) by $184,898.
EXECUTIVE SUMMARY
Adobe Creek Networks (ACN) is a non-profit founded in 2022 to provide fiber broadband
internet to Upper Page Mill Road in Palo Alto, and adjacent areas. To best meet the needs of
the public and the City, ACN and City are proposing a public-private partnership to be
implemented through a Dark Fiber License Agreement. ACN will execute a dark fiber project
“DFP” #1140 to lease dark fiber optic cables from the City of Palo Alto under this agreement,
reaching unserved fiber internet residents in the foothills area.
ACN will fund $184,898 of the City’s Fiber Optic System Rebuild Capital Improvement Project
(CIP) (FO-16000), which includes extending the City’s fiber backbone to the Foothills. The
$184,898 was calculated based on the standard dark fiber project rates for construction
material, labor, and administrative overhead costs. While construction is underway and for the
10 years of the agreement, ACN will receive a monthly bill reduction of $1,185 to the monthly
dark fiber licensing fee, decreasing the fee from $4,982 to $3,797. The total bill reduction
received by ACN over this 10-year term shall not exceed $142,200 for the material costs
invested by ACN for assets in the public-right-of-way that will be owned by the City at the end
of construction.
BACKGROUND
In 2023, as part of the City’s wildfire mitigation plan1, the City began coordinating the existing
Foothills Rebuild CIP (EL-21001) and Fiber Optics Network System Rebuild CIP (FO-16000) to
strengthen critical City infrastructure between Dahl Reservoir to Montebello Reservoir in the
foothills area and to serve critical water, advanced metering infrastructure, and emergency
preparedness facilities. Existing fiber would be undergrounded alongside sections of electric,
increasing the fiber capacity for existing facilities and becoming more future resilient.
Coordinating these two projects presented a unique opportunity to extend the City’s dark fiber
backbone network. Fiber connections are limited to areas within reach of the dark fiber
backbone and it is often cost-prohibitive to extend the network and build miles of fiber
infrastructure along major transit corridors (the “middle mile“) and local streets (the ”last
mile”). By coordinating the Foothills Rebuild and Fiber Rebuild, it became more feasible to
increase fiber capacity and expand the City's dark fiber backbone in a cost-effective way.
In the same year, the City and ACN executed a Dark Fiber License Agreement on the City’s
standard template that serves mostly commercial businesses and has a standard 10-year term
(see Attachment A. Dark Fiber License Agreement Packet with City’s template language). These
License Agreements allow the Licensees (here, ACN) to execute multiple Dark Fiber Projects
(DFPs) to connect various service locations (e.g., homes or businesses) via ”drops” on the City’s
dark fiber optical backbone network. The Licensees remain responsible for securing the internet
service provider (ISP) and any equipment to provide fiber broadband internet services at the
service locations.
With the coordination between the City’s existing CIPs resulting in an anticipated expanded
commercial dark fiber backbone presence, it became possible for ACN to offer fiber broadband
internet service for up to 25 residents in the foothills area, by ACN leasing over 12 miles of the
City’s newly extended dark fiber (see Exhibit B in Attachment A. Dark Fiber License Agreement
Packet), and then ACN building the ”last mile” fiber infrastructure to reach the residents. To
help facilitate the City’s foothills fiber expansion work, ACN will fund $184,898 of the Fiber
Optics Network System Rebuild CIP (FO-16000) and pre-pay $142,200 which will be reimbursed
by the City over a 10-year period on the monthly recurring licensing fee (see Fiscal/Resource
Impact section of this report). The Adobe Creek Networks Dark Fiber License Agreement No.
S24189080 will be amended to extend the term and add Dark Fiber Project # 1140 (see
Attachment B. Proposal for 12.15 miles of backbone; seven drops; and one 48 fiber strand
custom cable). DFP #1140 will have a start date of 10/7/24, and the entire agreement will be in
effect through 10/6/33.
1 Wildfire Mitigation Plan https://www.cityofpaloalto.org/files/assets/public/v/1/utilities/safety-
information/cpau-wildfire-mitigation-plan-2024-update.pdf
ANALYSIS
Summary of responsibilities
Under the City’s Dark Fiber License Agreements, and in accordance with the City of Palo Alto
Utilities Rules and Regulations, the City is responsible for maintaining the dark fiber backbone
infrastructure from the data center, Equinix, up to a demarcation point (DEMARC), and
Licensees are responsible from the DEMARC to the service premises as indicated in the final As-
Builts (aka blueprints) furnished by the City. The Licensee is responsible for providing an
updated Network Diagram (with fiber assignments, DEMARC, Points of Service ”POS” clearly
documented). Only the City is authorized to access and maintain the dark fiber backbone.
For DFP #1140, the Points of Service will be CPAU communication boxes installed in the public-
right-of-way, and the Demarcation Points will be the Licensee's communication boxes installed
on private property (see figure 1 below). Both the POS and DEMARC will be indicated in the As-
Builts. All structural work outside the public-right-of-way on non-City property, and
substructure installed from the POS to the DEMARC points, will be the sole responsibility of the
Licensee. CPAU will furnish the drop cable from the POS to the DEMARC and be responsible for
the installation and maintenance of the drop cable.
Figure 1. Example diagram of POS, DEMARC, Final premise (residents). Green indicates public-right-of-way “PROW.” Not to
scale.
ACN will be responsible for managing communications with their end users and troubleshooting
their fiber broadband internet services. However, ACN may submit service requests to the City
to help test connectivity between the DEMARCs, provided the City has an updated Network
Diagram from ACN reflecting the fiber assignments, DEMARC points, and service locations.
FISCAL/RESOURCE IMPACT
Staff recommends increasing the Fiscal Year 2025 CIP FO-16000 revenues and expenses in the
amount of $184,898 to reflect ACN’s funding contribution and construction costs. In exchange,
for ACN's prepayment, the monthly dark fiber licensing fee of $4,982 will be reduced to $3,797
over the 10 years of this Agreement.
STAKEHOLDER ENGAGEMENT
This project is located in the Palo Alto foothills area. ACN independently began developing a
plan to bring fiber broadband internet to unserved residents in the foothills and in 2022
engaged the City to initiate a dark fiber project. City staff held discussions with ACN beginning
2023 informing them of the City’s electric underground conversion and dark fiber expansion
projects. By coordinating the needs of all three projects, the City, ACN, and residents will
benefit from new fiber capacity and resiliency in the unserved foothills area.
ENVIRONMENTAL REVIEW
The leasing of dark fiber to the Licensee is not subject to the California Environmental Quality
Act (CEQA) as existing fiber facilities are exempt from review under Title 14 of the California
Code of Regulations Section 15301 and any new City fiber facilities are “small facilities” exempt
from review under Section 15303.
ATTACHMENTS
Attachment A: Dark Fiber License Agreement with Adobe Creek Networks (Agreement and
Exhibits A-F)
APPROVED BY:
Dean Batchelor, Director of Utilities
Staff: Alexandra Harris, Telecom Program Manager
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DARK OPTICAL FIBER BACKBONE
LICENSE AGREEMENT
Agreement No. ________________
THIS DARK OPTICAL FIBER BACKBONE
LICENSE AGREEMENT (“Agreement”) is made
on ___________________, _____ (“Commencement
Date”) by and between:
CITY OF PALO ALTO (“CITY”)
A California chartered city
250 Hamilton Avenue
Palo Alto, CA 94301
and
(“CUSTOMER”)
A
(individually, “Party” and, collectively, “Parties”).
IN CONSIDERATION OF the mutual covenants,
terms and conditions set forth in the Agreement, the
Parties agree, as follows:
1.DEFINITIONS. The capitalized terms that are
used in the Agreement and the Exhibits shall have the
meanings set forth in the Palo Alto Municipal Code
and/or the City of Palo Alto Utilities Rules and
Regulations (“Rules and Regulations”), Rule and
Regulation 26, and/or Utility Rate Schedules EDF-2
and EDF-3, which are incorporated herein by
reference and made a part hereof, unless the context
otherwise clearly indicates a different meaning.
2.EXHIBITS TO AGREEMENT. The following
Exhibits are incorporated herein by reference and
made a part hereof:
A Special Terms
B Proposal for Dark Fiber Services
[Proposals shall be numbered consecutively,
e.g., Proposal #B-1, Proposal #B-2, … Proposal
#B-n]
C Fiber License Agreement Investigation Request
Form
D Insurance Requirements
E Fiber License Agreement Information Request
Form
F Acknowledgement of Receipt of City of Palo
Alto Utilities Rules and Regulations
3.TERM AND TERMINATION.
(a)Commencement Date, Term, Extension,
Renewal. The Agreement shall commence on the
Commencement Date and shall continue until the
Agreement expires or is sooner terminated in
accordance with the covenants, terms and conditions
of the Agreement; provided, however, (i) the initial
term shall be one (1) year, (ii) the initial term may be
extended automatically for not more than nine (9)
consecutive one-year terms, and (iii) the term of the
last approved Proposal shall not extend beyond a date
more than ten (10) years after the Commencement
Date.
(b) Termination. A Party may terminate the
Agreement without cause, provided that Party gives
to the other Party ninety (90) days’ prior written
notice of termination. A Party may terminate the
Agreement for cause, provided that Party gives to the
other Party the specified prior written notice, or if
none is stated, thirty days’ prior written notice.
(c)Early Termination Fee.
If the CUSTOMER chooses to terminate for
convenience the Agreement or the term of any
project covered by a Proposal under the Agreement,
then the CUSTOMER shall pay the applicable
termination payment, equal to the net present value of
the remaining fees of the project term as indicated in
each Proposal.
4.TELECOMMUNICATIONS
INFRASTRUCTURE.
(a)Warranties. The CITY makes no
representations, warranties, covenants or assurances:
(1) with respect to the design, construction, durability
or suitability of the telecommunications
infrastructure, or any part thereof, whether express or
implied, and the CITY specifically disclaims any
implied warranty of merchantability and any implied
warranty of fitness for a particular purpose; (2) with
respect to the nature or accuracy of the description,
location or measurement of the telecommunications
infrastructure, the telecommunications pathway, or
any part thereof; (3) that the CITY will increase or
decrease the number of dark fibers constituting a part
of the telecommunications infrastructure at any time
during the term hereof; or (4) that the CITY will
obtain the legal right to locate, maintain or use the
telecommunications infrastructure, or any part
thereof, in the Peninsula Corridor Joint Powers Board
(“PCJPB”) right-of-way by means of a license
October7 2024
S24189080
AdobeCreekNetworks
CalifornialMutualBenefitCoporation
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agreement, an easement agreement or other written
instrument.
(b)Relocation, Repair or Removal of
Telecommunications Infrastructure. The CITY, at
its sole cost and expense, may upon reasonable notice
to the CUSTOMER, or, in the event of an
emergency, upon 24 hours’ prior oral notice, relocate,
repair, replace or remove the telecommunications
infrastructure.
(c)Access. The CUSTOMER is prohibited
from accessing the telecommunications infrastructure
(other than accessing that portion of the conduit,
which the CUSTOMER is obligated to maintain), the
transmission pathway, or any CITY electric or other
utility facility. Only personnel authorized by the
CITY will be allowed to connect the CUSTOMER’s
service to, or disconnect CUSTOMER’s service
from, the fiber optic system on the CITY side of the
demarcation point.
5.GRANT OF LICENSE.
(a) The CITY grants the CUSTOMER a license
to use the Licensed Fibers identified in each
Proposal, on condition that the CUSTOMER shall
timely pay all applicable fees, rates, charges and
applicable taxes (“Fees”), and shall be in compliance
with all other covenants, terms and conditions of the
Agreement. All connections to CITY fiber shall be
within the jurisdictional boundaries of the CITY.
This grant is subject to the CITY’S right to occupy
and use the public rights-of-way [including the
PCJPB rights-of-way], public utility easements,
private property and any other property in and on
which the CITY’s dark optical fiber backbone is
located, which right may be delineated in any
contract, dedication, deed, easement, license or other
similar form of document. Nothing in the Agreement
shall be deemed to grant, convey, create, or vest an
interest or estate in land, including but not limited to
any fee, leasehold, easement or franchise, in the
CUSTOMER. The CITY shall not be liable to the
CUSTOMER on account of the PCJPB’s termination
of the CITY’s right to occupy the PCJPB’s rights-of-
way, except as provided herein.
(b) No Exclusivity. Nothing in this Agreement
limits the City’s right of use of, or right to lease
either Telecommunications infrastructure or Fiber not
leased in this Agreement to others.
6.LIMITATIONS ON USE. If the CUSTOMER
uses the Licensed Fibers and/or any other portion of
the Backbone to provide, in whole or in part, services
subject to AB 2987 (Ch. 700, Stats. 2006) and/or
Chapters of the Palo Alto Municipal Code relating to
the provision of video services as defined in AB
2987, the CUSTOMER shall apply for a franchise
and pay the franchise fee as required by applicable
law.
7.FEES.
(a)Types of Fees. The CUSTOMER shall pay
to the CITY the current fees that are identified in
each Proposal and referred to in Utility Rate
Schedules EDF-2 and EDF-3, including the Dark
Fiber Backbone License Fees, Drop Cable
Management Fees, Custom Cable Management Fees,
and any applicable administrative and miscellaneous
charges. The CUSTOMER shall pay the fees
identified in each Proposal without set-off or
recoupment, in accordance with the covenants, terms
and conditions of the Agreement. The CUSTOMER
shall pay, upon the execution of the Proposal, the
Interconnection Fee.
(b)Method of Payment. The CUSTOMER at
its election shall pay the total Drop Cable
Management Fees (excluding the Interconnection
Fee) either in a lump sum at the commencement of
the term of a Proposal or in equal monthly
installments, as they shall become due and payable
20 days following issuance of the bill statement. The
CITY shall issue to the CUSTOMER, upon request, a
monthly billing statement for the fees (excluding the
Interconnection Fee). If the CUSTOMER elects the
monthly installment payment option, then the
CUSTOMER shall pay the first monthly installment
on or before the execution date of the Agreement and
Proposal #B-1.
(c)Result of Untimely Payment. The CITY
reserves the right to charge the CUSTOMER interest
on the lump sum or any monthly installment at a rate
not to exceed the maximum rate allowable by law if
the CUSTOMER fails to timely pay the lump sum or
any monthly installment. The CUSTOMER shall
timely pay any and all undisputed portions of the fees
in the event the CUSTOMER disputes in good faith
any other portion of the fees. The CITY, upon two
(2) days’ prior written notice, reserves the right to
temporarily suspend or terminate services to the
CUSTOMER until the CUSTOMER has paid any
and all undisputed fees. An administrative charge of
two hundred dollars ($200) or such other charges as
may be established by CITY by law shall be due and
payable by the CUSTOMER for the cost of
processing and handling the CUSTOMER’s failure to
pay any of the fees required by this Agreement and/or
the Proposal. The CITY reserves the right to modify
the administrative charge by law and charge the
CUSTOMER interest on the administrative charge if
payment is not made within thirty (30) days of its
assessment.
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8.INSURANCE. Within five (5) Days after the
CUSTOMER executes the Agreement and initiates
Service with its submission of Proposal B-1 and pays
the fees, the CUSTOMER shall obtain and maintain
the policies of insurance described in Exhibit D. The
CUSTOMER shall maintain these policies of
insurance during the term of the Agreement and any
and all unexpired Proposals.
9.INDEMNITY. To the fullest extent permitted by
law and without limitation by the provisions of
Section 8, relating to insurance, the CUSTOMER
shall indemnify, defend and hold harmless CITY, its
Council members, officers, employees and agents
from and against any and all demands, claims,
injuries, losses, or liabilities of any nature, including
death or injury to any person, property damage or any
other loss and including without limitation all
damages, penalties, fines and judgments, associated
investigation and administrative expenses and
defense costs, including, but not limited to reasonable
attorney’s fees, courts costs and costs of alternative
dispute resolution, arising out of, or resulting in any
way from or in connection with the performance of
this Agreement. The CUSTOMER’s obligations
under this Section apply regardless of whether or not
a liability is caused or contributed to by any negligent
(passive or active) act or omission of CITY, except
that the CUSTOMER shall not be obligated to
indemnify for liability arising from the sole
negligence or willful misconduct of the CITY. The
provisions of this Section survive the expiration or
termination of this Contract.
10.DESTRUCTION.
(a)CUSTOMER’s Property. In the event of a
total or partial destruction of substantially all of the
CUSTOMER’s Property, or any part thereof, where
such casualty occurs as a result of an event of Force
Majeure, whether or not such casualty is covered
under a policy of insurance carried by the
CUSTOMER, this Agreement may be terminated at
the option of the CUSTOMER, or the LICENSEE, at
its sole cost and expense, may commence and
complete as soon as practicable the repair or
restoration of the damaged CUSTOMER’s Property,
or any part thereof, to substantially the same
condition immediately before the event of
destruction.
(b)Telcommunications Infrastructure. In the
event of a total or partial destruction of the
Telecommunications Infrastructure, or any part
thereof, including the Licensed Fibers, where such
casualty occurs as a result of an event of Force
Majeure, whether or not such casualty is self-insured
or covered under a policy of insurance carried by the
CITY, this Agreement may be terminated at the
option of the CITY, or the CITY, at its sole cost and
expense, may commence and complete as soon as
practicable the repair or restoration of the damaged
Telecommunications Infrastructure, or any part
thereof, including the Licensed Fibers, to
substantially their same condition immediately before
the event of destruction. If the CITY elects to
terminate this Agreement, the CITY shall be relieved
of any obligation to the CUSTOMER, and the
CUSTOMER shall be released from its obligations
under this Agreement.
11.CONDEMNATION. The Party receiving a
notice of condemnation promptly shall give to the
other Party a copy of the notice of condemnation.
(a)Total Condemnation. If the property or
premises of a Party is totally taken by condemnation,
this Agreement shall terminate as of the date title to
that Party’s property or premises is taken by the
condemnor.
(b)Partial Condemnation. If the property or
premises of a Party is partially taken by condemnation, this Agreement shall not terminate,
provided, however, the Party whose property or
premises is partially taken, at its option, may terminate this Agreement for cause if all or
substantially all of the property or premises cannot be
used for the purposes for which the Party entered into
this Agreement.
(c)Termination; Award and Payment. If the
Party whose property or premises is partially taken
elects to terminate this Agreement, the notice of
termination shall become effective within thirty (30)
Days after the other Party has received notice of
termination. An award and any other payment on
account of a total or partial taking of the
Telecommunications Infrastructure, or any part
thereof, including the Licensed Fibers, shall be made
and paid to the CITY.
12.DEFAULT. The non-defaulting Party may
terminate the Agreement and any and all unexpired
Proposals upon the occurrence of an event of default
caused by the defaulting Party, if the defaulting Party
fails to cure the event of default within the period of
time specified below. In an event of default of a
financial nature, the defaulting Party shall cure the
default within two (2) days of receipt of the notice of
default. In the event of default of a non-financial
nature, the defaulting Party shall cure the default
within ten (10) days of receipt of the notice of
default. A failure to cure an event of default within
the specified period of time shall constitute a material
breach of the Agreement.
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(a)Events of Default. The occurrence of any
of the following shall constitute a material default by
the CUSTOMER:
(i) Failure to pay any fee, when due, unless
the CUSTOMER, in good faith, disputes all or any
portion of the fee, in which event the CUSTOMER
shall pay only that portion of the fee that it does not
dispute.
(ii) Failure to perform, observe or comply
with any other covenant, term or condition of the
Agreement that the CUSTOMER is required to
observe or perform.
(iii) Assignment or transfer of the
CUSTOMER’s interest in the Agreement, voluntarily
or by operation of law.
(iv) Assignment or transfer of the
CUSTOMER’s assets for the benefit of the
CUSTOMER’s creditors.
(v) Filing of a petition in bankruptcy or a
petition for reorganization or other arrangement
relating to the bankruptcy, insolvency, or
receivership of the CUSTOMER and/or its assets,
unless the same is dismissed within 180 days of the
filing thereof.
(vi) Any representation or warranty of the
CUSTOMER that shall prove to have been incorrect,
false, or misleading in any material respect when
made.
(b)Obligation to Perform; Payment. The
termination of the Agreement and any and all
unexpired Proposals shall not relieve the defaulting
Party of its obligation to perform its obligations,
including the payment of the fees, prior to the
effective date of termination.
(c)Remedies for Default. The CITY shall
have the following rights and remedies, in addition to
all other rights and remedies provided by applicable
law, to which the CITY may resort cumulatively, or
in the alternative, the CITY may:
(i) Keep the Agreement in effect and
enforce all rights and remedies that it enjoys under
the Agreement, including but not limited to the right
to payment of all fees as they shall become due, by
appropriate legal action.
(ii) Seek specific performance of the
Agreement in addition to other rights and remedies
that available at law or in equity.
(iii) Terminate the Agreement for cause.
(d) DAMAGES. NOTWITHSTANDING
ANY OTHER PROVISION OF THIS
AGREEMENT, NEITHER THE CITY NOR THE
CUSTOMER SHALL BE LIABLE TO THE
OTHER FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, LIQUIDATED, OR
SPECIAL DAMAGES, OR FOR LOST REVENUES
OR LOST PROFITS TO ANY PERSON ARISING
OUT OF THIS AGREEMENT OR THE
PERFORMANCE OR NONPERFORMANCE OF
ANY PROVISION OF THIS AGREEMENT, EVEN
IF SUCH PARTY HAS BEEN INFORMED OF
THE POSSIBILITY OF SUCH DAMAGES. THE
CITY’S TOTAL LIABILITY FOR ANY CLAIM
OR DEMAND OF THE CUSTOMER ARISING
OUT OF THIS AGREEMENT SHALL NOT
EXCEED THE AMOUNT OF THE FEES PAID BY
THE CUSTOMER TO THE CITY PRIOR TO THE
DATE OF CLAIM OR DEMAND.
13.REPRESENTATIONS; WARRANTIES. The
CUSTOMER represents and warrants that (i) it is in
compliance with all applicable laws, rules,
regulations and tariffs relating to its activities covered
by the Agreement, (ii) it is not in delinquency for
payment of any CITY fees, taxes or charges for
electricity and other utilities and services, (iii) it has
the requisite power and authority to carry on the
business it now conducts, (iv) it is a sole
proprietorship or a corporation, partnership, or
limited liability company, duly formed, validly
existing and in good standing under the laws of the
State of , (v) it has the power to enter
into and perform its obligations under the Agreement,
which constitutes a legal, valid and binding
obligation of the CUSTOMER and enforceable
against it in accordance with its covenants, terms and
conditions, (vi) the execution, delivery and
performance of its obligations under the Agreement
have been duly authorized, and (vii) there is no
pending or threatened action or proceeding before
any court or agency affecting the financial condition
or operation of the CUSTOMER or its ability to
perform its obligations under the Agreement.
14. WAIVER. The consent of a Party to any act or
omission of the other Party shall not be deemed to
imply consent to or constitute a waiver of a default or
breach of any term or condition of the Agreement or
a continuing waiver of a subsequent default or breach
of the same or different term or condition, nor shall
any custom or practice which may arise between the
Parties in the administration of the Agreement be
construed to waive or lessen the right of a Party to
insist upon full performance of the other Party in
strict compliance with the covenants, terms and
conditions of the Agreement.
15.NOTICE. All notices which shall or may be
given pursuant to this Agreement shall be in writing
and delivered by the United States Postal Service, or
by registered mail or certified mail, postage prepaid,
by commercial overnight delivery service, by
facsimile transmission, or by electronic transmission,
California
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to the address of any Party set forth in the
introductory paragraph of the Agreement and to the
person(s) described below:
CITY: City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: City Clerk
Telephone: 650-329-2571
Facsimile: 650-328-3631
CUSTOMER:
16.MISCELLANEOUS.
A. The Agreement and all Exhibits contain the
entire understanding between the Parties as to the
subject matter herein. There are no representations or
warranties, oral or in writing, between the Parties
pertaining to the subject matter hereof that are not
fully expressed in the Agreement.
B. The Agreement shall be binding upon and
inure to the benefit of the successors and permitted
assigns of the Parties.
C. The Agreement may not be amended, unless
the Parties first sign a written instrument that amends
the Agreement. No amendment of the Agreement
will be deemed effective, unless and until the City
Manager has first approved the amendment, in
writing, and the City Attorney has approved as to
form. A Proposal may be amended by any
designated representative of either Party.
D. The Agreement is governed by and
construed in accordance with the California law
without regard to its conflicts of laws, rules or
principles.
E. Trial of any action regarding any dispute
concerning the Agreement and/or any Proposal will
be vested in the state courts of California, County of
Santa Clara, or in the United States District Court,
Northern District of California, in the county of Santa
Clara, as appropriate.
F. Each Party and its counsel have reviewed
the Agreement. Accordingly, the normal rules of
construction to the effect that any ambiguity will be
resolved against the drafting party will not be
employed in the construction and interpretation of the
Agreement.
G. The CUSTOMER acknowledges that Fibers
licensed pursuant to this Agreement are subject to the
Rules and Regulations, and acknowledges receipt of
a copy of the Rules and Regulations in electronic
form, effective as of the Commencement Date.
Copies of the Rules and Regulations are available to
the public at the Utilities Customer Service Center,
Second Floor, 250 Hamilton Avenue, Palo Alto,
California 94301, or online at
https://www.cityofpaloalto.org/Departments/Utilities/
Utilities-Services-Safety/Utility-Rules-and-
Regulations
H. Each Party will comply with all lawful
federal, state and local laws, ordinances, resolutions,
rate schedules, rules and regulations that may affect
its rights and obligations under the Agreement.
I. The Agreement is subject to the fiscal
provisions of the Charter of the City of Palo Alto and
the Palo Alto Municipal Code. The Agreement will
terminate without any penalty (i) at the end of any
fiscal year in the event that funds are not appropriated
for the following fiscal year, or (ii) at any time within
a fiscal year in the event that funds are only
appropriated for a portion of the fiscal years and
funds for the CITY’s obligations are no longer made
available. This provision will take precedence in the
event of a conflict with any other term or condition of
the Agreement.
J. No payment, partial payment, acceptance or
partial acceptance by the CITY will operate as a
waiver on the part of the CITY of any of its rights
under the Agreement.
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Page 6 of 6
230822 027338
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IN WITNESS WHEREOF, the Parties have executed
the Agreement by their duly appointed
representatives on the date first above stated at Palo
Alto, Santa Clara County, California.
CITY OF PALO ALTO
_______________________________________
City Manager or designee
APPROVED AS TO FORM:
_______________________________________
Assistant City Attorney
_______________________________________
Director of Utilities
CUSTOMER
By: ___________________________________
Title: __________________________________
Taxpayer I.D. Number:
230725 dm 6050126
EXHIBIT “A”: SPECIAL TERMS
“Backbone” means the high-density portion of the Telecommunications Infrastructure consisting of the
Dark Fibers, which is designed to serve as the telecommunications paths at different locations within the
jurisdictional boundaries of Palo Alto.
“Commencement Date” means the day on which this Agreement is approved by the CITY.
“Condemnation” means the right of an Agency, including the CITY, to take property for public use, and it
shall include a voluntary sale or transfer by the CITY to the condemnor Agency under a threat of a taking under the
power of condemnation or during the pendency of formal condemnation proceedings.
“Drop Cable” means any CITY-owned and CITY-installed Fiber cable, one end of which is attached at a
Junction Site by the CITY, and the other end of which is attached to the CUSTOMER’s property by the
CUSTOMER.
“Drop Cable Management Fee” means the annual fee paid in advance by the CUSTOMER to the CITY
for each drop cable licensed by the CITY to the CUSTOMER. This fee may be waived, in writing, for any period
of time by the Utilities Director, acting on behalf of the CITY, for any Drop Cable less than one hundred (100) feet
in length.
“Fiber” means a solid core of optical transmission material.
“Fiber-Miles” means a unit of measurement of the product of the number of Licensed Fibers and the
number of Route-Miles for any element.
“Force Majeure” means the occurrence of any event that has, had or may have an adverse effect on the
design, construction, installation, management, operation, testing, use or enjoyment of the Telecommunications
Infrastructure, the CUSTOMER’s Property, or the Licensed Fibers, which is beyond the reasonable control of the
parties and which event includes, but is not limited to, an Act of God, an irresistible superhuman cause, an act of a
superior governmental authority, an act of a public enemy, a labor dispute or strike or a boycott which could not be
reasonably contemplated by the Party affected thereby, a defect in manufactured equipment (including, but not
limited to, the Dark Fibers), fire, floods, earthquakes, or any other similar cause.
“Telecommunications Infrastructure” means the Poles, boxes, handholes, manholes, vaults, conduits,
innerducts, surface location markers, cables (including coaxial cables, Custom Cables, Drop Cables, Fiber cables
and messenger cables), Fibers, wires (including copper wire), circuits, conductors, Splice enclosures, patch panels,
cabinets, converters, generators, amplifiers, receivers, switches, wireless transmitters and receivers, and all other
equipment or facilities containing the Dark Fibers or to which the Dark Fibers are attached, owned, controlled or
used by the CITY, in existence either at the Commencement Date or during the Term hereof and located overhead
or underground within the Public Right-of-Way, the Public Utility Easements and Licensed Service Properties.
“Term” means the initial term or the extension term, as defined in Section 3(a), or both, whichever may be
applicable.
“Transmission Pathway” means those areas of the Public Right-of-Way, the Public Utility Easements and
the Licensed Service Properties in which the Telecommunications Infrastructure is located.
In additional to the foregoing, other terms are defined throughout this Agreement.
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1
230829 syn 6050128
EXHIBIT “C”: FIBER LICENSE AGREEMENT INVESTIGATION REQUEST FORM
REQUEST SUBMITTED BY: FIELD INVESTIGATION CONTACT:
Name: Name:
Title: Title:
Company: Company:
Street Address: Street Address:
City, State, Zip: City, State, Zip:
Telephone Number: Cell Phone:
Fax Number: Fax Number:
Email Address: Email Address:
Today’s Date: ____/____/____
Project Description:
Example:
1. 4 fibers from 123 Alma to PAIX
2. Miscellaneous investigation (Attach drawing if applicable)
1.
2.
Desired completion date: __/____/__
NOTE: Please budget 6-8 weeks from installation payment (not this investigation payment) to completion.
FIBER LICENSE AGREEMENT INVESTIGATION REQUEST CONDITIONS:
I am submitting this advance engineering request with the full understanding of the following conditions:
1. The advance engineering fee is a non-refundable fee required to cover the cost of preparing a detailed
estimate.
2. The detailed proposal will establish an interconnection fee that must be paid in full prior to the start of
construction.
3. The advance engineering fee will be credited against the interconnection fee.
Please Note: You will be invoiced for $650 or by estimate for special conditions, per Utilities Rate Schedule
EDF-2. Please do not remit until you receive an invoice.
Signature: ____________________________________ Date:___/______/____
Please see following page for contact information.
EX
A
M
P
L
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F
O
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PleaseseeExhibitC-Attachment1forprojectdescription
2
230829 syn 6050128
Please submit the completed form with authorized signature and direct questions to:
Utilities Marketing Services
City of Palo Alto Utilities
250 Hamilton Avenue
Palo Alto, CA 94301
Phone: (650) 329-2241
Fax: (650) 617-3140
Email: darkfiber@cityofpaloalto.org
Note that all inquires of a legal nature must be directed to:
Office of the City Attorney
8th Floor City Hall
250 Hamilton Avenue
Palo Alto, CA 94301
Phone; (650) 329-2171
EX
A
M
P
L
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F
O
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Form version 2024.03.21
City of Palo Alto Dark Fiber Optics
Exhibit C – Attachment 1: Project Description
Project Description
܆ Point-To-Point
(Location A to Location Z)
Location A
Location Z*
* Location Z is typically Equinix unless connecting Palo Alto buildings,
adding properties to a ring, etc. Customers are responsible for
coordinating with their ISP for the ISP to cross connect to the City of
Palo Alto (CPA) at Equinix. The Equinix DEMARC is CPAs patch
panel.տ Other
(Provide quick description)
Fiber Strand Count
(ex: 1F vs 2F for redundancy)
MPOE Panel տ Wall mounted/ տ Rack mounted
Site Location Info
(If Location Z is different than Equinix, please provide info for both locations)
Multi-tenant building? ܆ Yes ܆ No
Please provide directions to access MPOE at the site:
Site Contact Name
Site Contact Phone
Site Contact Email
Notes:
1. CPA works primarily in the Public Right-of-Way “PROW” within the boundaries of Palo Alto. Aside
from work to pull fiber in existing infrastructure to complete a connection, CPA is not responsible
for and does not perform infrastructure work on private property such as, but not limited to,
substructure construction of conduit.
2. SC/UPC is the standard CPA connector type at the DEMARC.
3.Customers are required to sign and fulfill the conditions of a Proposal for Dark Fiber Services
and/or a new Dark Fiber License Agreement (DFLA) to license CPA Dark Fiber.
4. Installation dates average 6-8 weeks upon fulfillment of the signed Proposal, per Rules &
Regulations Rule 26. Service requests are based on a simple queue, and estimated completion
dates will be provided as the project progresses. CPA does not reserve installation dates.
Please attach this document to the Exhibit “C” Fiber License Agreement Investigation
Request Form to provide information for the Project Description
EX
A
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P
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F
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230725v2
EXHIBIT “D”: INSURANCE REQUIREMENTS
1. During the Term hereof, the CUSTOMER, at its sole cost and expense, shall obtain and
maintain or cause to be obtained and maintained the following policies of insurance in the
amounts specified herein:
a. Commercial general liability insurance policy with a minimum limit of not less
than one million dollars ($1,000,000) per occurrence (combined single limit) for
bodily injury and property damage, and not less than one million dollars
($1,000,000) aggregate, for each personal injury liability, products-completed
operations, premises operations, blanket contractual, and owners’ and
Contractors’ protective, and each accident;
b. Workers’ Compensation and Employers’ Liability insurance policy providing
statutory coverage (Coverage A and Coverage B) written in accordance with the
Laws of the State of California, providing coverage for all employees of the
CUSTOMER, and requiring an “ALL STATES” endorsement if the CUSTOMER
is domiciled outside the State of California and the policy is written outside the
State of California.
c. The CUSTOMER shall furnish the CITY with a certificate showing proof of such
coverage, and naming the CITY as the certificate holder.
CUSTOMER is additionally recommended to obtain a Business Interruption insurance
policy in amounts adequate to CUSTOMER’s needs.
2. The CUSTOMER shall file the required original certificate(s) of insurance with the
CITY’s Utilities Department, Dark Fiber Services, subject to the CITY’s prior approval,
which shall clearly state:
a. Policy number; name of insurance company; name, address and telephone number
of the agent or authorized representative; name, address and telephone number of
insured; project name and address; policy expiration date; and specific coverage
amounts;
b. If the policy is canceled before its expiration date for any reason other than the
non-payment of premium, the CUSTOMER shall ensure that the insurance
company provides CITY at least thirty (30) days written notice before the
effective date of insurance cancellation; and
3. The certificate(s) of insurance and notices shall be mailed prior to the establishment of
fiber optic service, to City of Palo Alto, Department of Utilities, Palo Alto, CA 94301,
Attn.: Utilities Department, Dark Fiber Services, 3rd Floor.
4. These insurance requirements shall be subject to the review, annually performed, by the
CITY’s Utilities Department and/or Risk Manager. If the CITY requires any change in
coverage, notice thereof shall be given to the CUSTOMER, in writing, and the
CUSTOMER shall comply with such notice within thirty (30) Days of receipt thereof.
5. Prior to the execution hereof, any deductibles or self-insured retentions must be stated on
the certificate(s) of insurance, which shall be sent to and approved by the CITY.
230725 syn 6050153
EXHIBIT “E”: FIBER LICENSE AGREEMENT INFORMATION REQUEST FORM
1. Official business name:
2. Is Company certified as a Competitive Local Exchange Carrier (CLEC)?
R No
R Yes
[If yes, does the Company intent to offer CLEC services over the Licensed Fiber optic
lines of the CITY? ]
Check this box if you intend to offer commercial video services.
Yes No
If commercial video services are to be offered, the applicant must consult with the Cable Franchise
Manager, Administrative Services Department, (650) 329-2208 to discuss obtaining a franchise with
the City of Palo Alto.
Attach copy of Articles of Incorporation, Fictitious Business Name Certificate, or Limited Liability
Partnership Certificate of Registration, if applicable.
Attach Insurance certificate in the amounts specified in Exhibit D with the City of Palo Alto named
asan additional insured.
Address(es) to which notices should be sent:
MAIN NOTICE: COPY TO (optional):
. Company Company
Street Address Street Address
Attention (Name and Title) Attention (Name and Title)
Phone Number (with area code) Phone Number (with area code)
Fax Number (with area code) Fax Number (with area code)
7. Taxpayer I.D. Number: _____________
N/A
Adobe Creek Networks
3995 Page Mill Road
Los Altos, CA 94022
ATTN: President
415-329-3614
87-4375605
Adobe Creek Networks
Adobe Creek Networks
c/o Thoits Law
400 Main St # 250
Los Altos CA 94022
No
✔
230725 syn 6050132
EXHIBIT “F”: ACKNOWLEDGEMENT OF RECEIPT OF CITY OF PALO ALTO
UTILITIES RULES AND REGULATIONS
The City of Palo Alto Utilities Rules and Regulations, and any amendments thereto, are approved
and adopted by resolution of the Palo Alto City Council. Copies are available to the public at the
Utilities Customer Service Center, Second Floor, 250 Hamilton Avenue, Palo Alto, CA 93401.
In addition, the Rules and Regulations are available online via the City of Palo Alto website at
http://www.cpau.com/docs/rules/rulesindex.html.
By signing this receipt I hereby acknowledge receipt of a copy of the City of Palo Alto Utilities
Rules and Regulations, effective date ___________, 20___.
_______________________________________________
Signature
Company
Street Address
Attention (Name and Title)
Phone Number (with area code)
Fax Number (with area code)
August 1st
Adobe Creek Networks
3995 Page Mill Rd
Los Altos CA 94022
Daniel Dulitz, President
415-329-3614
23
230828 syn 6050132
EXHIBIT “F”: ACKNOWLEDGEMENT OF RECEIPT OF CITY OF PALO ALTO
UTILITIES RULES AND REGULATIONS
The City of Palo Alto Utilities Rules and Regulations, and any amendments thereto, are approved
and adopted by resolution of the Palo Alto City Council. Copies are available to the public at the
Utilities Customer Service Center, Second Floor, 250 Hamilton Avenue, Palo Alto, CA 93401.
In addition, the Rules and Regulations are available online via the City of Palo Alto website at
http://www.cpau.com/docs/rules/rulesindex.html.
By signing this receipt I hereby acknowledge receipt of a copy of the City of Palo Alto Utilities
Rules and Regulations, effective date _____August 1st______, 2023___.
_______________________________________________
Signature
Adobe Creek Networks
Company
3995 Page Mill Road
Street Address Los Alto, CA 94022
City, State, ZIP, Country Daniel Dulitz, President
Attention (Name & Title) 415-329-3614
Phone Number (with area code)
Fax Number (with area code)
Email/Website