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HomeMy WebLinkAbout0516.093•• ... >-,::". " ,>,,-< ~:: < ":./' ,.-", G) . . . '~" ";" -, octo~r 7, 199J THE HONORABLE CITY COUNCIL Palo ~tO, California conduit Qec~Daney License Agreement yith Digital Equipment ~ Members of the council: Report in Brief This report requests that Council ratify a conduit Occupancy License Aqreement between the City and Oiqital Equipment Corporation (Digital). This aqreement establishes the terms and conditions wherein Diqltal may use conduits installed and owned by the Utilities Department in downtown Palo Alto ~or operation of a Oigital fiber optics communications syste.. A simila~ agreement exists between the city and Cable Co-op for use of conduits tor camsunity antenna television service (CATV~) BaPkqround Diqital currently occupies facilities at 250 University Avenue, 130 Lytton Avenue and 529 Bryant Stree.t that are linked by a microwave syste.~ An additional link. ties Digital to the Mer facility at 525 University Avenlle~ From their 250 University AvenUe facility. Digital also operates a central communication facility for several large international networks~ CJOt: 515.93 .---._._-- ,-. '~ o A new Diqitel work qroup is beinq relocated to Palo Alto from the East Coast. They will occupy 181 Lytton Avenue. As part of their relocation, Digital recognized the need to shift from a microwave system to a fiber optics system capable of greater data communications speeds and capacities. Because of tbe extensively built-up nature of the downtown are.a, it would be very expensive tor Digital to install its own conduit facilities. As an alternative. Oiqital considered cont~actin9 tor fiber op,tics services from Pacific Bell. The terms and cost .for that service were considered to be excessive by Digital. Diqital approached the City through the city Manager's oft ice about establishinq an improved communications system, linking its facilities in downtown Palo Alto. Because the Utilities .Department owns many underground conduits in the downtown area, some ~f w~ich are already being leased for CATV use, staff finds it acceptable .for Diqital to use available conduits for its fiber optics netwo!"k. staff was also interested in working with Digital to encouraqe retention of a major employer. Digital hired a fiber optics installation firm to investiqate the existinq conduits. The firm \:Iorked with Utilities Department staff to locate mutually acceptable conduits for the pr~posed system. A license agreement was drawn up to cover the terms and conditions of Digital's use of the conduits. The agreement incl~~es a $1.00 per year per toot rental cost for their use. This amount is comparable to the fee established with PacBell, whose rate is slightly lower, but which will cover the City's cost. Approximately 7,000 feet of conduit will be leased. Due to the critical timing of the relocation of Digital's work group, the ftgreement was executed by the City Manager and Diqital to permit Oiqital to proceed with tiber optics cable installation in a timely fashion~ By the time this report reaches the council, the fiber optics system should be in and operatinq. CIIR.5UU3 ".; t. Recopendatioo Staft recommends that Council: Ratify the execution of a Conduit Occupancy Liceniiie Ag"t'6teJllcnt between the City and Diqital Equip.ent Corporation, and au~~or~ze the Mayor to execute this Aqreement. Respectfully submitted, n L.~j"y)~~ Ii' HI CllAEL BEANLAND Electrical Engineering Manager L (/PI. -_I Er:~~~':r Interis Director of Utilities BERNARD M. STROJNY Assistant City Manager Attachments: Contract CJIIl.5U • ., .. . . j I CONDUIT OCCUPANCY LICIIIISl! AGf<BBMEIIT .Jhis C~dricu.pancy License A9~eement ("Agreement·), dated ~ of VlA. • 19~1. is entered into by and b~tween the City of Palo Alto, a chartered city and a California municipal corporation {"City"} and Digital Equipment CorpoI."ation, a Massachusetts corporation, 'With offic!?s at 250 UnivE!z-sity Avenue, Palo Alto. California (ftLicensee~). WHEREAS, in the city of Palo Alto, City owns and opera~es an underground system of conduits ana accessory bOXE:s located within its streets, roadways, and other public rights of way ("System"); and WHEREAS, Licensee wishes to gain acc:ess to City's System in order that it ~ay lay and place fully-dielectric fiber optic cable '·Cable"); and WHEREAS. City wishes to grant license to use and occupy a p::.rtion prescribed ter.ms and conditions; Licensee a non-exclusive of Cit.y;s Syste!'n under NOW; THER~FORE. in consideration of the following covenants; terms; and conditIons, the parties agree: 1.(1 l:REM. The initial term of this license shall commence upon its execution by City, and shall continue for a period of five (5) y-ears. The initial term may be extended by Licensee for Buccessive five-year periods, provided: 1.1 City receives from Licensee, in writing, not less than 30 days prior to the expiration of the initial tenn, a declarat::'on that Licensee intends to extend, the term of this Agreement for additional f_ive-year terms !.!pon t!le covenants, terms, conditions of this Agreement and such other covenant~, te~, and conditions as may be established by City; _1.:2 City agrees, in writjng, to such extension by executing a modification to this Agreement, as necessary; 1.3 Licensee is not in default of any provision ot this Agreement; and 1.4 Tnis Agreement has not been terminated by City. 2.0 GRANT OF LICENSE;. City grants to Licensee, and Licensee accepts from City, subject to all cover~nts; terms, and conditions hereof. a non-exclusive. revocable license to access and lay. place. and maintain its cable; and Licenge~ covenants that no other form of cable; including, but not limited to. coaxial signal cable and any other cable or ather means of communication by cable, now or hereafter lTUIlufactured, shall be located within City's 1 o System during the initial term and any extended tenn of this Agreement. locatioo writing, 2.1 Subject of Licensee's as more fully to City's prior written approval, the Cable shall be designat.ed by Licensee, in descr~bed in Exhibit -A-. 2.2 Nothing in this Agreement shall be construed as a grant of or a creation of a franchise right in Licensee. ::2.3 This grant of license sha.ll not be assigned by Licensee. and any assignment of or attempt to assign such Agreement is void. 2.4 In consideration of thi.s grant of non-exclusive, revocable license by City, during the initial term, Licensee shall pay a license fee to City~ which shall be due and payable on the dates of completion of any installation of its cabla. Such license fee shall be equal to the product of the rate of one dollar ($1.00) per lineal foot per year of Cable installed by or caused to be installed by Licensee and the length of Cable installed within City's System during the initial t~rm. The license fee shall not be reduced in the event th~t Licensee elects to reduce the length of its Cable at any ti~~ during the initial term. Such license fee shall be increased by City whenever Licensee installs: additional lengths of its Cable to City'S System, and an additional license fee shall be due and payable in accordance with che terms hereof. 2.5 Camm~ncing on the first day of any extended term, Licensee shall pay a license fee in an amount computed in accordance wit.h the rate set forth in Section 2.4, p~ovided. however, the rate per linear foot shall be adjusted annually. and such adjustment shall be equal to the lesser of {il t.en percent (lOt) of the annual rate per linear foot in effect for the last year of the applicable init ial term or extended term, Dr part thereof .. or (ii) a rate adjustmeut. established in accordance with a change in the Consumer Price Index [All Urban Consumers] (base years 1982-1984 = 100) for the San Francisco-Oakland-San Jose CSMA (~CPI-) published by the United States Department of Labor, Bureau of Labor Statistics (·Index~J. which is published most immediately preceding the anniversary date of any extended term (-Extension Index") _ If the Extension Index has increased over the Beginning Index, the rate adjusted by the cpr shall be set by multiplying the rate per linear foot in effect for the ~~diately preceding year by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. In no case shall any Cpr-adjusted rate per linear foot be lower than the rate in effect for the immediately preceding year. The license fee shall not be reduced in the event that Licensee elects to reduce the length of its Cable at any time during an extended term. 2.6 As additional consideration to City for this grant of Don-exclusive, rev~able license. at City's election and upon City's request.. Licensee shall install or shall caused to be installed in City's System such lengths of coaxial signaL fiber 2 •• . , , . o optic, or other cable owned by City whenever Licensee installs or causes to be installed its Cable in City's System. The costs and expenses of the concurrent inst-allation of City's cable :t,y Licen­ see or Licensee's contractor shall be borne solely by City. 3.0 LICENSBE'S RI.GHTS M"D OBL:J: __ GATIONS. I .. icensee. at its sole cost and expense, shall exercise the following rights and perfDrm the following obligations set forth below. 3.1 Licensee shall request. in ..... rieing. City's permission to install its Cable in City's System. Licensee shall intorm City's Director oE utilities. in writing, of the length and size of any s~ch Cable, and shall further inform City's Director of Utilities, five (5) days in advance, of the proposed dates for the completion of installation of its Cable. 3.2 Licensee shall identify its Cable with durable, visible tags tr~t describe the number, color~ size, and manufacture of the cable and an}" other criteria as may be established or agreed to by City~ S Director of Utilities or a designated representative. 3.3 Licensee shall be pfJ.'rmitted to make any and all necessary rearrangements, maintenance, and repairs to its Cable without giving prior written notice to Cit:y in the event that Licensee is the sole occupant of any portion of City's System within which its Cable is located, p=ovided, however, Licensee shall obtain and .maintain any required permits or licenses prior to initiating aDY work of rearrangement, maintenance, or repair. Any such rearrangements, maintenance, or repairs shall be performed with due care by Licensee or one acting on behalf of Licensee, including Licensee's employees, agenr.s, or representatives. 3.4 Licensee shall give 30 days' prior written notice to City's Director of Utilities and any other licensee whenever Licensee elects to, is requir8d to, or is requested by City to, make any and all necessary rea !'rangernents, mainte~ance, or repairs to its Cable~ or whenever Licensee's Cable concurrently occupies any portion of City'S System with City or any other licensee of City~s System4 Any such rearrangements, rr~intenance, or repairs required by City shall be performed with due care by Licensee or one acting on behalf of Licensee~ including Lic~nsee'S employees, agents~ or representatives. 3.5 Licensee sc~ll install its Cable with due care~ and shall ensure that no damage is caused to any other cable or conduit in City'S System not owned, leased C.t-licensed by Licensee. Any damage or destruction which is caused by Licensee or one acting on behalf of Licensee shall be reported within 24 hours to City's Director of Utilities, or a designa.ted representative~ and any other licensee which may be directly affected by such damage or destruction4 Licensee covenants to reill'1burse any person, upon demand, for any damage or destruction caused by License or one acting on behalf of Licensee, including Licensee's employees, agents, or representatives. 3 .. , < .,., . """ c/' " r -------~- o 3.6 Licensee ~y remove its Cable from City's System on a pe~nent basis l provided chat Licensee gives City and any other affected licer.see not less than 30 days' prior w4itten notice of Licensee's i~tent to ~emove its Cable. Licensee shall obtain all re~~ired permits and licenses prier to the commencemer.~ of such removal. Licensee may elect to transfer ownership of its Cable tu City, provided that City agrees. in .... riting. to accept title to Licensee's Cable. Within thirty OJ} days aftEr Licensee abandons its Cable or ctherwise fails to remove the same upon the termination or expiration of this Agreement, City, at it.s option. shall be deemed the owner of Licensee'~ Cable or City may arrange for the removal of Licensee's Cable at Licens~e's sole cost and expense. Upon the demand of City. Licensee shall imm.ediately reimburse City for the costs of removal. 3.7 Licensee covenants to remove 0= relocate its Cable within City's system within 90 days aEter Licensee's receipt of written notice by City that Licensee ~hall remove or relocate its Cable to another desigru">ted locat.ion wit.hin City"s System. In th.e event that Licensee is required by City to permanently remove its Cable from City's System, Licensee shall remove such Cable ~ithin six (6) months of receipt of City's written notice, 3.9 Licensee shall obtain and maintain the insut"ance coverage that is required by City, and such insurance requirements az'e more fully set forth in :sxhibit liS". 4.0 CITY'S RIGHTS AND OBLIGATIONS. 44~ City. acting in its complete ana l.lnfettered discretion, shall designate, in writing, those 8ecti~ns of City's System which will be made available to Licensee to lay, place, and maintain its Cable. 4.2 t-he covenants, parties. City may accept oynership of Licensee's Cable upon terms" and condiLions :mutually agreed to by the 4.3 City may require Licensee to make rearrangements, maintenance, or repairs in respec~ of its Cable should City elect to grant a non-exclusive. revocable license t.o occupy City's System to any other party, and, in such event, City shall give rea~onable vritten notice to Licensee. 4.4 In the event that City elects to franchise the right to access, use, and occupy City'S System, City shall give Licensee not less t.nan 60 days' prior written notice of its intention to engage in such action. 5.0 RIGHTS AND REMEDIES OF PARTIES. 5.1 In the event that Licensee fails to timely remove ies Cable from City's System or to timely r~~ove its Cable to a designated part of City'S system at the request of City, Li~ensee acl(:noll'ledges that City shall suffer damages. and, because such 4 ~< .", :; • • < ,r­X, c<c J_ < -c< ___ ~-""-_-'-'-""" damages will be difficult to ascer'tain, Licensee shall pay to City as liquidated damageE' and not as a penalty the surn of ':mE'! hundred dollars ($ 100.00) for each day that Licensee fails to timel}~ remove its Cable as require~ by City. 5.2 IN THE E'VE:r.,"T TI!AT DW.r..c:E IS CAUSED TO A PARTY'S CABLE OR CONDUIT BY THE OTHER PARTY, Tn£ PARTIES AGREE THAT THE P;U<TY CAUSING THE DAloIAGE Sl!l\LL NOT BE L~l\BLE TO THE DAMAGED PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES< ;;;.0 INDEMNIFICATION AND WAIYKR. 6.1 Bach party agrees to indemnify, defend, and :bold harmless the other party, its officers, employees, and agents, including Council Members, against any and all claims, demands, liability~ losses, damages, costs, or expenses (including reasonable attorneys' fees) (·Liabilities·). arising, in whole or in part, directly or indirectly, from any injury to or wrongful death of any person and f~r any damage to or destruction of any property of any person (including damage tc· any third person' 5 cable or conduit lying within City's System) as a result of the willful or negligent act or omission of that party, except to the extent such Liabilities arise from the active negligence or w:!..llful misconduct of the other party. 6.2 The waiver by City of any breach of this Agreement by Licensee shall not be dea.emed a waiver or continuing waiver of any subseque~t breach of the same Qr any other provisicDk nor shall any custom or practice which may arise between tne parties in the administration of any part of ~his Agreement be construed to waive or lessen the right of City to insist upon the p~rformance of Licensee in strict accordance with the te~ of this Agreement. 7.0 DBPAUL~Y LICENSER. The occurrence of any of the following shall constitute a defaUlt by Licensee and a breach of this AgreemenL and. at City's opti on, this Agreement may be terminated after 30 days' prior written notice to Licensee. 7.l The failure to pay the license fee within 30 days after the due date. 7.2 The general assignment of L1censee's assets for the benefit of Licensee's creditors. 7.3 ~be assignment of this Agreement by Licensee. 7.4 An order, judg!Oent, or dp.cree of Licensee as a bankrupt or insolvent person, or the filing of a petitio,n of reorganization of Licensee, or the appointment of a rece~ver, trustee, or assignee of Licensee, or the winding up or liquidation of Licensee. and such order or decree continues for a period of 90 days. 7.5 Any action or inaction of Licensee which is expressly made a default under this Agreement 5 ....... _--._--- o 8.0 NOTICES. All notices, statements, demands, app~ovalBI agreements, and designations hereunder given by either party to the other, shall be given in wr~t1ng and shall be served upon the other party by {a} personal delivery. tb) delivered by private express delivery Bervice~ or (el dep~sited in the U~ited Statea mail. postage prepaid, and delivered as follows: CITY: Copy to: City of Palo ~to 250 Hamilton Avenue Palo Alto~ CA 94301 Attn: City Clerk Directcr of Utilities City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 ATTN: Electrical Engineering Manager Digital Equipment Corporation 250 Universi ty Avenue Palo Alto k CA 94301 ATTN: Group Manager, DEC Director~ Western Research Labs &.1 For the purposes of this Agreement. the City Manager of City is hereby authorized and designated to act on behalf of the City and take any and all necessary action, including. but to l~~ted to, approving any modification to this Agreement, or any term or conditioD thereof, and approving the extensions of the initial term hereof. 9. 0 ~EI'LANEQIJS. 9.1 This Agreement shall be governed by and construed in accordance with the laws of the State of California. 9.2 This Agreereent may be executed in any number of counterparts, each of which shall be ~n original, but all of which cogether shall constitute one and the same agreement. 9".3 All exhibits referred to herein and any addenda, attachments. and exhibits which may, from time to time, be referred to :3.n any duly executed amendment hereto are by such reference incorporated in this Agreement and shall be deemed to be part of t.his Agreement. 9.5 This Agreement c:onsti tutes the entire agreement between the parties concerning its subject matter, and there are no ather oral or written agreements between the parties not incorporated in this Agreement. 9.6 This Agreement shall not he modified. unless the parties first agree to and approve of such modification in writing. 6 .. . , · . 9.6 Licensee shall submit a copy of any corporate resolution which authorizes cr provide written evidence of the authority of any individual executing this Agree~ent on behalf of Licensee. 9.7 If a court of competent jurisdiction finds or rules that any provisicD of this ~greement is void or unenforceable, the unaffected portions shall remain in effect~ 9. a Nothing in this Agreement shall be constr..led to create a relationship of principal and agent, partnership, joint venture~ or other relationship betwee~ City and Licensee. 9~9 In the event that suit is brought to enforce the provisions of this Agreement; the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Santa Clara or in the United States District Court for the Northern District of California~ IN WITNESS WHEREOF. the parties have executed this Agree~ent in Palo Alto. California. on the date first above stated. A'ITl!ST: City Clerk APPROVED AS TO FORM: <6 i ~ J,;'3--->, "s"e:::n"i":o"r::-As st. C1 t Y At t orney ~Ci yManag Director of Utilities Director of Info~~tion Resources Director of Finance Risk Manager 7 CIn OF PALO ALTO Mo.yor DIGITAL EQUI~r CORPORATION BY:.~ Name~ /taA._.PI'" T-S,7'."V:-:A-=-t\/7'.· :::1~~~2 JanJ Sukrau ='--- Ass.j,~ bi3Aeral eOdttsel /t ttZUC';14f.. '( ~ ~ta.l lr;uipmc-nl ~jUf' '':'/es[~m Resctrch l~oon(on 250 [:niHrsi.T)' Itv('n~ P:&Io AJIU, Callfomt.3 9 ... ;\01 415,61~,.'H(JO August 23, 1993 City of 1'>110 Alto 250 Hamihoo Avenue PaloAlto.~94301 EXH[BIT "A" AIteatioo: Mr. MiclJaeJ BeanJancl,l!Iectrica1 Enginc.oring Manager kter.oc.: DigiW Fiber Optic Cable in City of Palo A110 Conduil Dear Mr. Beanland: As st'puJuM in our conduit occupaIl<'y license agt'''''ment, dated August 23, 1993, we are be:eby ad\'isi."!g you that we will commence with the City approved project witltin 3() day.. We will be issuing our internal put<:hase order to CPW Conununicafions 10 provide and inIitaIl "'" fiber optic cable. as outlined in "'" ~...-.ement. CPW Conuuunicarions will be responsible for securing all pemUts and City procedures to penonn !his wOIk. Also, they will be issuing to yoo any required certificales of insurance Sincmly, . , '--, CS-1:d3 llWM fEC;! D1Gl(5 PENSION 1:-1'1' EXHUlIT >lB' m.II!D-CERTIFICA.TE OF INSURANCE Thlt 10 tv CIttIHY"'; CITY OF PAW ALTO Attn. Hr. Michael B~.nlend 250 ~ilton Ava. :11610 Alt.o, CA 94301 As :'.dd.1tional R&: Conduit Occupen~y l1clr.st Agf't(t(1Jent Ie. at lht dJII. oj' \til. ~rtl!att.lMu_ b11ht Cam~ tor thetypel of ""u,.~ /II aa:Drd.~ wlth1r.. ilmj1e ~ Illbilty, aWv.;O' .... , ~"rllohI ana Ottt.r tJorrM of 1-". pole_ hfr.lnl1Wr ~ .~ 1m apitt of 'PlY rt<jl.li"rMm, I.rm tlr tondlllot'l cf any telnlfld Of ofha, docvmtm wtrh ~ tD whictllhlt ~ 1M)' ~~. Tn .. certl!1cate d tn.lollanet " n01I111 Irtslli'llncl' )X'lir.y 11"1(1 doa$ not Imard, ~rW or ..... fhl ~. &'tord.a bf 1t'I. poIdn J.iIIWd below. WOIIKSM_nOll we, .",-0042"-05 CONTINUOUS SfaMOry Cove~ rOf me 1U95 01: .. Other S1ala-t Cowr. WC2·111-0G4211·06 UNTH. CANOEu..eO AK, AJ., Al, AR, CA. CO, CT, DE, b. U.S. ~rtrMnt & ~r WorQrs 1\'0:·',1<>04211"'" DC, F" GA. ~I, ID, 11., IN, IA. KS, Co Ulr/limt KY, LA, ...... MO, MI, MN. US, MO. l!. 0-1 • .,.. 8au Act IAT, NE, NH. NJ, NM.NY,NG.Ot<. •• ~ Cor$MIn18f $hIr 00. p" Be, SO, TN, 1)(, l/1', 'IT, t \iQ!U!I!Iry CornponlOlloo VA,WI .. Fc'~n eo~ion !MPi.OUR'& UAl!IUTY WC1"t'~'1--05 CONTINUOUS $500,000 Se4i]yTn;Ul)' W02~' 11..oo.t:llr .(Ii IJtjTII. CAHCEU.EO H011~.rd By_on! WC2·111.Q04211~ ~.OOO Bodi~ fttuty PChlmplovw By-- 16M,Coo 9od;~ Injury po,<\, lim, By 0;0.., 11'1 sta\$i wh6tt. tW.r.A«y ClDYtrIQ. ~"""", •• !ln: NC, HV, OH. WA.. WI. 'IN "~GEHEIW. RGH11-OOC211..09 CO~UOUS $2,0(\0.000 fad! OccurT.~ IndudliIO PlR8OIW. IN./UIIY • Citl of PI' 0 UrN"" CANCElS) -~~J"'Y "'OfIIEJItTY OAl&.\CI£ for. '2,000,000 AoQftQaI • •. ..... "'1000·000_ Alto as Bodio/ I"r~ry t. EJlmart' Ho.'I11 AdditioMl $.2,000,000 &ch Cccu!~ c, rMept~1l'It ContrIIc::tar lnsured P-rty~. 4. Cont!Uto&l Uab311y $2,QW,OOO AQ~..g.a •• Oo":'.pIPLIcI Op*1lrtIons • PtodlJ.Ct5 t Explosion. UlIdoIglOUrO & CoJIopoo ~n;OamlGo (xcu)_s 3. AU'IOIIIOII!LE UUU,/!Y • PHYSICAL ASl -n '-G0421t-A.c CONTltJIJOUS Bod~ly Injury/P'roplilny Oamo DA .... Ge/_g; UNTIl. CANCEllED ComblMd Singl. ~kn ~ a. owntd' 'II.nk:IeI 12,000,000 Per ~rr.nee b. !MItd wl\lclu c, ;"I!ed ..,.hk*. A.c11.1t.1 C8,h Value Ptlj&ic&I Olm~ d. MII--owned vtl'lQ~ 01"1 Ownad or "Ufi<! v.t\lde .. 4.. UMr.t"EUA iJA 81LITV ltH"..Q042"!H~8 CONTV!VO'JS 11,000,000 Combined S~:'l\.mft UNllL CANC£lllO bQH& 01 Prir1llr)' JrfOnCe", CANC£UAWH: B6for.lhe abg~ ~ ,;c~ratiOn c1,te [.beny Mlltilal will J'!O!' ~ Qr r.fdUC& the lnluranot affcordlH! ,,,. .aboye IUU1IlHred poiIciu prior to.1Krr' (60) I1I1l'I af:'.r.uc1I note. of ce~licr~ I'W btl,!) ma~.d ~ tn. abofi, eertifJC.11i noJcMr.