HomeMy WebLinkAbout0470.095I~
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City of Palo Alto
City Manager's Report
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TO, HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: CITY MANAGER
AGENDA DATE: October 30,1995 CMR!470:9S
SUBJECT:
BEQVEST
Req .. est (rom Cable CommlDkatiollJ Cooperative of
Palo Aho, IDC. (Cable C<>-op) (or. p.,"Ii< He.ring all
tile Appnlval or Disapproval .. r 11>. TCG/Cable Co-op
Facilities A:reeme.t
Coble Co-op bas petitioned !he City by Jetter (see Attachment A) for its approval of an
A~ with TOO San Frarx;isco, Inc. (TOO) under which Cable Co-op will participate in
• majcr project with TOO 10 instalJ and construct fiber optic cable, and associated facilities and
equipment, for the provision of telephone and data services on Cable Co-op'. right of way.
RECOMMENDATIONS
Staff recommends lIIat the City Cooncil take action 00 such petition by setting. public bearing
OIl November 20, 1995, for !he purpose of determining wbethet it shaD grant its coosenllO the
Facilities A~ between Cable Co-op and TOO.
POLICY IMPUCAIlONS
This Facilities Agreement contemplates new const.ovction which is not expressly perrrutted
under the Franchise Agreement. Also, policy issues involving the City's future ability 10
jIfOvide telecommunications services either by itself or in partnership with Cable Co-op could
be impacted by this agreement
EXEClITM SUMMARY
Cable Co-op bas proposed 10 enter into an agreement with TOO to have TCG install and
coostruct fibeI optic cable and associated fucilities and equipment for !he prO">ision of telepbone
and data services on Cable Co-op'. right of way, in the City of Palo Alto only, using
underground conduits and aerial fucilities at TCG's cost. TCG will then seek reimbursement
from Cable Co-op for one-half 6ftbese costs out olCable Co-op's share ofnet reveDue received
from the services provided .. These facilities, called "Shared Facilities,~ will be shared, and
within these Shared Facilities, TOO also will in;,1all dark (uoactivated) fibeI foe Cable Co-op's
exclusive use.
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Also, during the Iern! of!his agreement, either party may construct and install additional fiber
optic facilities in Cable Co-op'. cooduits in any \ocaL"" in !he Sen.ice Are. at TCO', cost. If
both parties agree 10 the constroction of these • AdditiorulJ Shared Facilities," TCO.MIl ir.staU
additiooa\ dark fiber lOr Cable Co-op', exclusive 1lSe.
In essence this agre..'!11ept provides TCG with the ability 10 enter the Competitive Access
Provider lelepbooe lIlJId:etplac. in the Sonic. Area by using Cable Co-op', underground and
oaiaI inftasttucture. In exchange, Cable C<Klp receives new fiber optic cable infrastructure thai
permits them 10 offer new sonice. 10 their customers without incurring up-ftoot capital costs.
At the November 20, 1995 public bearing, staff ,.i!1 provide recommendations 10 the City
Cooncil regaramg this request.
FISCAL IMPAcr
None.
ENVIRONMENTAL ASSF£5MENT
Staff's recommendaticn that. pubJi<: bearing be held on Cable Co-op', peliticn does no!
constitute a pro jed under the Calif<Jrnia Enviroomental Quality Act. Tberefun:, no
environmentalossessment is required.
ATIACHMENTS
AtIlICbment k Letter of pelitioo from Cooley Godward lOr approval of
TCGlCable Co-op facilities Agreement
PREPARED BY, Bernard M. Strojny. Assistant City Manager
CITY MANAGER APPROVAL: at
City Manager
cc: Gloria Young, City Cieri,;
Brad Anderson, General Maoager, Cable Co-op
John KeUey, President, Cable C<Klp Board of DireclOrs
. Joint Powers Cable Woding Group
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August 30. 1995
Bernard M. Strojny
Aosistatt Cily Mmaget
Cily 0( Pal<> Alto
250 HamiItou A.e"""
Palo Alto, CA 94301
Re: CIty Re>lew of Tt.'GICable C<H!p Facilities Auoement
Dear Me. Strojny:
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Please COilSidor this IeUer as • pe<ilion 10 restart the Cily 0( Palo Alto Ie.iew process for
approval o(!be atta.:bed TCGlCable Co-op Facilities Agreement.
On January n. pursuanI 10 Section 14 0( !be Fr.mcl!ls< Agreement between Coble
Cootmunications Cooperati .. 0( Palo Alto and the Cily 0( Palo Aho, Brad Anderson petitiooed
IIW the miew process begin regarJing the TeG Agreement; bow ... ,. during the drafting
process !be parties spenI more time (ban anticipated negotiating certain business terms prompling
Coble Co-op 10 notify die Cily IIW official re>iew should be postpooed until such ternlS could
be asre<d upon. We !lOW believe IIW the atlacbed contract is substantiaJly in !be form in WbieR
iI wiI! be execiIted by the parties and we would like the off"",iaI re>iew process 10 begin anew
f<x City Council approval. .
I ha .. also attached I copy 0( &ad Ande""u', com:spondence 10 your office IIW explains the
strategic IeISODS f<x the relationship with TOO.
Please feel free 10 can me with any questions or comments IIW you may have.
Very truly'!.'T'tiL /Z S)I4i----'
Dan S. Johnston
AttacluneIllS
cc: Brad Anderson
Gran! Kolling, Esq.
AnIbooy lCJein. Esq.
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THIS FACiLITIES AGREEMEN7 is made as of
l:JISlS .. by and between Cable Communications Cooperative of Palo
Alto .. Inc'r a California consumer cooperative corporation, having
its principal place of business at 3200 Park Boulevard, Palo
~to~ CA '4306 (-Cable Co-op-), and TCG San Francisco~ Inc. a New
York general partnership, having its principal place of busines~
at One BUsh Street. SUite 510, San Francisco, CA (~TCG-).
RECITALS
Cable Co-op has construc~ed and operates fiber ~ic
telecommunications facilities as part of its cable television
syste~ (the ·System-) ~ithin its franchise area deacribed in
Exhibit A attached hereto and incorporatec herein~ (the ·Service
Ar~a-)* In addition .. Cable Co-op may extena or expand its
existing fiber O?tic telec~~unications facilities in the Service
Area. TOG desires to provide telecommunications services ~ithin
the Service Area by construction and installing fiber ~ic
telecommunications facilities within Cable Co-op'-s right of way
facilities includir~ conduit an~ aerial runs located in the
Service Area. Subjec~ to the terms and conditions set forth
below, Cable Co-op and TOG desire to construct and operate
additional fiber ~ic telecommunications facilities within the
~rvice ;..rea.
AGREEHE!lTS
In consideration of the foregoing. and of the promises
and covenants cO!ltained in this Agreement. the parties agree as
follows:
1 . ~h.ared Fae iIi ties
raj ,;tnitiaJ, construction. TCG sball install and
construct fiber ~ic cable and associated facilities and
eql.J.ipment for the provision of tele?hone and data so:!rvices on
Cable Co-op"s right of '-lay including corlduit and aerial runs in
the Service Area for the shared use of Cable Co-op and TOG in the
a:nount and in the locations to be jointly determined by the
parties an4 set forth in a SChedule 1 to be incorporated herein ..
(tb~ ·Shared Facilities·J. TOG and Cable Co-op shall equally
share the costs of construction and installation of the Shared
Fa=ilities. TOG shall pay the costs of installation and
construction cf thE: Shared Facilities and Cable co-op shal.1
reimburse TCG for its share of the costs of construction ar~
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installation out of Cable Co-op's share of net revenues as
defined herein from the Shared Facilities as more fully described
in Paragraph ) herein. A~ no time will Cable Co-op be required to
pay TOG. for any applicable pay period. more than the amount
Cable Co-op has received from the Shared Facilities during such
pay period. Cable Co-op sball not be forced into a negati~e cash
flov position. cable CO-OP. at its option. may accelerate
payment of the constru~tion costs with funds other than the
operating revenues from the Shared Facilities~ Cable co-op shall
not be charged interest on its share of the cor.struction and
installation costs for the Shared Facilities.
{b} Cable CQ-op Fa~ilities4 Concurrent with the
construction and installation of the Shared Facilities l TOG shall
install addition~l dark fiber for Cable Co-cp's exclusive use
<the ·Cable Co-op Facilities·) in conjunction with the Shared
Facilities of up to a maximurn of' ~ fibers at TCG1s
sole ~t. In the event Co-op determines that it nee~s in excess
of ... , dark fibers. Cable Co"op shall pay all
incremental costs associated with the additional fibers
includingl but not limited to, the costs of fiber l materials i
installation and constru-ction. Cable Co··op sball pay TCG all
s·.l-ch incremental costs within thirty (30J days from the receipt
of an invoice from TOG. Cable Co-op shall r~ify TOG ~thin
thirty i30) days prior ~o the commencement of construction-of the
amount of fibers it desires. TOG shall have no responsibility for
any costs l expenses I claims l damages i or any liabilities of any
kind whatsoever. associated with the Cable Co-op Facilities other
than those d,escribed in this paragraph 1 {b) or directly related
to the const.ru-ction and installation .of su-ch Cable co-op
facilities as required by this Agreement and ~ caused by the
negligent or int.ecti.onal acts of Cable Co-op.
eel Additional Facilit.ies.
(1) At any time d~ring the term of this Agreement.
either party m~y~ but is not required to# n~ify the other that
it vishes to const~t an~ install additional fiber ~ic
facilities ,·Additional Shared Facilities·} in Cable Co-op~s
conduit in any loc~tion in the Service Area. Each su-ch request
shall contain such inform8tion~ su~h as the routes, the location
of splice points l net.work architecture and diversity
requirements p and the proposed commencement of construction date.
A party can decide not to participate in the installation and
construction of the other party's request for Additional Shared
Facilities in which case ~he provisions of paragraph c (iii.
s~~ll apply. For each Additional Shared Facilities, the parties
shall eJII:ecute Supplemental Schedules to Schedule 1 setting forth
the same sort of information regarding su~h Additional Shared
Facilities as is set forth on Schedule 1 attached hereto with
~~S9~ct to tbe Shared Facilities~ TOG shall pay all costs of
c~~struction and in5t~llation of the Additional Shared Facilities
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including fiber and other Inaterials. All terms and provisions of
this Agreement, including but not limited to fees and payments l
shall apply' to any Additional Shared Facilities installed and fo~
purposes of this Agreement the term Shared Facilities shall
include Additional Sh~red Facilities.
(ii) Should the parties jointly agree to proceed ~itb
the installation and construction of Additional Shared
Facilities l TOO shall inst.all additional dark cable for Cable Co
op's exclusive use# (the -Additional Cable Co-op Facilities·)
along tbe sa~e route as the Additional Shared Facilities and
under the same terms and conditions as Cable Co-op facilities
covered under section l{b) of this Agreement. For purposes of
this Agreement, the term Cable Co-op Facilities shall include the
Additional Ca~le Co-op Facilities.
(iiil In the event. t.h1$t. -eit~~ 'Party~determines t.hat
ccnstruction ar~ installat.ion of any Additional Shared Facilities
j s'.:Qot in the best interest of that party .. a decision not to
participate in such constru~tion and installa~ion shall in no way
prevent the other party from itself oonstru~ting such additional
fiber ~ic facilities (the ·Separate Facilities-). The parties
2gree ~bat construction of Separate Facilities ~ill not be
covered under this Agreement and any costs, fees~ and
liabilities, of installing and constructing th~ Separate
facilities are to be borne by the party electing to construct and
install the Separate Facilities and all ~evenue from the use of
the Separate Facilities shall belong to that party constructing
the Separate Facility. The term Separate Facilities sb~ll also
include fiber that either party ~booses to extend from splice
points on the Shared Facilities~ Additional Shared Facilities or
t.he: Cable Co-op Facilities to its residential customers.
Cd) Subcontractor. TOG may utilize Cable Co-op as
its subcontractor f~r purposes of performing any construc~ion and
installation required under this Agree~ent. Any subcontracting
services to be provided shall be by separate agreement bet ... ·een
the parties.
Cel Testing of S~ared Facilities. TOG snaIl
perform testing on the Shared Facilities.. the Additional Shared
Faci lities and the Cable Co-op Facilities at no charge during the
installation ~f su~h facilities and in accordance ~ith the
prcx;edures set fcrth en Exhibit D attached hereto. The parties
acknowledge that the test provided on Exhibit D is based on the
technical aDd performance specifications set forth in the
TEleport Communications Group Inc. volume of technical and
~rformance specifications~ a copy of ~hich has been provided to
Cable Co-op and TCG Cas the same may be modified or revised from
time to time, the ·Specifications-J. Exhibit. D shall he amended
fro~ time to time to ccnform to the Specifications .. as modified
~~ revised from time to time. Cable Co-op shall have the ri9ht
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to 't·e present during and to partiC'ipate in such test. If Cable
Co-op chooses to have TOG perform ongoing testing on the Shared
facilities. Additional Shared Facilities, or the Cable CO-op
Facilities. TOG shall perform su~h ongoing teating at its current
ratES.
2. Term. This Agreement shall commence on the date
hereof and tertflinate upon the occurrence of the earlier of the
following: CiJ The date that Cable Co-cp~s {or its successors' or
assigns') franchise to operate the Shared Facilities in the
Service Area. tez:minates. or (ii. the date tbis Agreement
terutinates pursuant to sections 1.e .. 15, 21 or 22 nl!;reof.
Conditioned upon Cable Co-cp's franchise agreement being renewed,
~his agreement shall automatically renew for an additional
fifteen (15) year period (a -Renewal Term-) unless earlier
terminated. Cable CO-op shall use best efforts to renew its
franchise in the Service area upon its expiration. Should Cable
Co-op lose its franchise rights in the Service Areas Cable Co-op
agrees to use best efforts and operate in good faith to assist
TOG in ~ai~ing the rights to maintains use and occupy the
cor~uit containing the Shared Facilities or Additional Shared
Facilities to insure there is no interruption in TOG's business.
{a) Ii) TCG shall
receive Net Revenues as defined
below telephone and data services
provided on tbe Shared Facilities and Additional Shared
iF.a~e.i.111~·itjiie.siiQ.si a managernent fee. The remainIng of the Net Revenues received from. pri .... ate line
telepboae and data services~ vhich are defined as any point to
point telecommunications service that is separate and independent
of the public switch net~ork~ provided on the Shared facilities
and Additional Shared Facilities$ shall be divided
~tween TOG and Cable Co-op. TOG shall pay Cable Co-op its share
of Net P.evenlles from. tbe Shared Facilities and Additional Shared
Facilities quarterly within from the last day of
each calendar quarter. (iii Net Revenues shall be defined as all
receipts from the provisIon of private line telephone and daca
services~ as defined aoo"Je, on the Shared Facilities and
Additional Shared Facilities~ less bad de~a. uncollectible
accounts, taxes (except those taxes attributable to a party~s
income), and customer specific installation costs {hereinafter
referred to as the ·Shared Revenues·J. In no event shall Net
Revenues iriclude revenoe received by TOG for services provided by
TCG outside of the Service Area {except to the extent a portion
of that revenue is the resul t of services provided to a custOG'.er
~ithin tbe Service ~rea) or fees from services ~her than private
line telephone and data s€rvices.
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<b} ~ction~f~ Records. TCG agrees that it
'Will, for a pe-,~:!od of three years after (i) the construction
and installation of the Shared Facilities. Cable Co-op Facilities
and Additional Shared Facilities; and (ii) the payment of ea.ch
quarterly payment of Cable Co-op·s share of net revenues;
maintain detailed comprehensive records relating to the cost of
const~~tin9 and installing such Shared Facilities~ Cable Co-op
Facilities, Additional Shared Facilities and the calculation of
each party·s share of net revenues from the Shared Facilities and
Additional Shared Facilities~ TOG will permit Cable Co-op at any
time upon reasonable notice to exa~ine all of such records, to
~ake copies and extracts therefrom and to discuss such records
and ~her matters relating to the Shared Facilities, the Cable
Co-op Facilities and the Additional Shared Facil ities with the_
respective officers, employees and independent public accountants
of TCG~ If any discrepan~y is found in such records which calls
into question the accuracy of the computation of any payment, the
parties shall ne~iace in good faith to revise the affected
pajf1I',ent. If it is determined that TOO has underpaid amounts o'wed
to Cable Co-op, then TCG shall immediately make pal~ent of such
amounts ow-ed to Cable Co-op-.
4 _ EXDenses.
for the payment of all pole attachment fees and conduit rental
for the Shared Facilities, Additional Shared Facilities and the
Cable Co-op Facilities in the public ~y_ Further$
FaCilitfe~e:~n~~i~i!~~lC~~~!~ ~:~i~iti::~ fO~o~~t~~~~~ing
the foregoing, in the event TOG elects to rent and use conduit
sp~ce not provided or made available by Cabl~ Co-~~ or ~
already rented or used by Cable Co-op then ~~~III![Iii~'.~iII~
shall be responsible for its respective portion of such ne·". or
additional conduit le:nt to the ratio set. forth
in Section a ia) hereof~ shall ~ be responsible for
pole attachments or condu are related to the
Separate Facilities of TOG.
S. US_~_---.9f Sh~r_.gd Facilities. {a} The parties shall
not use the Shared Facilities or Additional Shared Facilities in
violation of this Agreement. any la~, rule. regulation or order
of any governmental authority having jurisdiction. or any
fraochise~ license, agreement or certificate ... unless the .....-alidity
thereof is being contested in good faith and by appropriate
proceedings (but o~ly so long as such proceedings do nee involve
any risk of the sale, forfeiture ... or loss of the Shared
Facil ities or Additional ShaI-ed Facilities <:or any part thereof or
any interest thereinl~ Nei~her party shall do or permit anything
to be done ... ·ith respect to tbe Shared Facilities or Additional
Shared Facilities tl-.at. 'Would invalidate or conflict with any
i,'.s'.lrance policies maintained by Cable Co-op or TCG -covering the
S:".3:::-ed Facilities or Additional Shared Facilities. {bl SUbject to
"::--.~ foregoing. TCG may use t.he Shared Facilities or Jodditional
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S~ared Facilities for the transm;,ssiou of telecormnu.nications
services and for any other la\lr'ful purpose; TCG shall ha ... ·e
exclusive coctrol over its providing of voice and data
telecommunications services to customers on the Shared Facilities
and Additional Shared Facilities l includi~, without limitation I
customer premise and nodal electronics~ sales and marketin9r
electronics maintenan~e and monitoring, and billing and
coll~ction. (cl To tbe extent reasonable~ reG a~d Cable Co-op
~ill sbare in the cost of installation and any revenue from the
installation when a ~ customer 'Want.s service from Cable Co-op
and such split of revenue ~ill be negot.iated on a case by case
basis~ ~~ is ~ obligated to participate with Cable Co-op in
,the sharing of installation costs and split of revenue for any
such customer.
6. Non-Exclusivity: ConnectiQQs to Shared Facilities.
N~hing in ~his Agreement to the contrary shall be construed to
re"quire one party t.o be t.he provider of, or contractor with
respect to~ the ~her's fiber opt.ic~ or any other~ facilities in
the service Area or to limit in any way a party's right in its
o·wn name to apply for and obtain municipal franchises,
authorizations and permits, to construct. maintain~ operate and
own fiber optic or other facilities, provide ~her services
thereon .. and to apply for and obtain pole attachment agreements l
conduit licenses or other rights-of-vay agreemen~s from ~her
rignts-of~way providers .. In the event that a party does elect to
own.o,r construct it.s own fiber optic or Qther facilities. the
party vill be 9iven access to the Shared Facilities and
Aqditional S~are~Facilitie6 .. at times mutually agreed to by th~'~
parties, at the splice points mutually agreed upon or designated
subsequen~ly in ~riting by a party from time to time. TOG and
Cable Co-op shall each retain sole and edlusive ti-tJle to its
Separate Facilities pursuant to Section 1 c [iii' of this
Agreement. and each shall have~ fr~ the point of splicing, 24
hour. 365 day access to each splice point for the purpose of
maintaining cables and splices. For purposes of this Section 6
the term Separate Facilities shall include all facilities of a
party that are not Shared Facilities or Additional Shared
Facilities.
1 ~ Ot.'b.er Faciliti,g? to be Provided
Ca} Cable Co-op shall permit 7CG to build a
"cage'll" of approx.imately one hundred nOO} square feet. in Cable
Co-cp's Head-End (the "TOG Space-) to house TOG's equipment and
racks at no charge. TOG agrees to allow Cable Co-op reasonable
s~ared access to the TOG Space. TOG shall have twenty four (24)
hour~ seven f7) day per week access to the Cable Co-op Head-End
a:-o,j TCG Spac~. TCG .... ill install at its sole cost~ a pass card
s~curit.y system to be used by TOG and Cable Co-op to monitor
~=C~5S. Cable Co-op will c~~erate and assist TOG in
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facilitating the pass card security system installation with its
present security syste;u v"!!ndor {Hone::,. ....... ell).
(b) TOG will be responsible for all electrical
power necessary for its equipment in the TOG Space and a separate
meter will be install~d for this ~~rpose4
{c} cable Co-op shall pay for all pole
attachments and conduit rentals as set forth in· Section ~ hereof,
of the trunk and distribution facilities for the Shared
Facilities a~d Additional Shared Facilities and for any
incremental electrical pcwer associated with facilities that are
not located on TOG~s, TOG's customers' premises. Cable Co-op
shall not be responsible for pole attachments or conduit rentals
that are l."elated to Separate Facilities of TCG.
(d) TOG shall b~ responsible for all installation
costs to connect a customer and may charge a customer for such
installation costs. Any revenue received by TOG for installation
costs from a cust~r will not shared by Cable Co-cpo
S. Performance and Maintenancer ra) Cable Co·op
shall either itself maintain i or have maintained on its behalf~
by oontractors approved 9Y TOG, ~hich approval snaIl not be
unreasonably ~thheld~ tbe Shared Facilities and Additional
Shared Facilities in accordance with industry star~ards and the
maintenance standards set forth in Exhibit D attached hereto and
incorpo!ated herein so that at all times such portion of the
Shared Facilities and Additional Shared Facilities perform in
accordance with the Specifications in effect as of such date. In
consid~ration of the performance of such maintenance i TOG shall
pay to Cable Co-op one half of all mair.·tenance costs incurred by
Cable Co-op in providing such maintenance on the Shared
Facilities and Additional Shared Facilitiesr Except as ~he~~se
provided in Section 6 hereof~ inspection and maintenance of the
Shared Facilities and Additional Shared Facilities will be
conducted by Cable Co-op or its subcontractors unless prior
arrangements have been made bet .... een Cable Co·op and TCG. fb) TCG
shall maintain its equipment in the TCG Space~ In the event that
TCG fails to maintain its eq'J.ipment, Cable Co·op may perform su<:h
ll'.aintenance -on the TCG equipment after prior notice to TOG and
TOG vili reimburse Cable Co-op for the actual cost of such
maintenance. tc) Cable C040P ....-i11 ·~itaintain or have maintained
the trunk and distributio~ system subject to reimbursemen~ of
maintenance costs as set forth in Section Sea). Cd} TOG ....-ill
s'.1pply at its expense,. a:lY test or repair equipment necessary for
Cable Co·op to conduct routine maintenance. (e) In the event
e~~rgency restoration is r.ecessary to the Shared Facilities. the
A&jltional Shared Facilities i or the Cable Co-op Facilities~
Cable Co-~ shall perform err.ergency maintenance and TeG shall
reimburse Cable Co-op for its prcrata share of such costs based
c:: the number of fibers in t.he Shared Facilities versus the
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number of fibers in the Cable Co-op Facili ties. Cable Co-op • .... ill
have~ or ~~ll cause, technicia~s to be available twenty four (2.)
hours a day, three hunered and sixty five 1365) days per year to
perform emergency maintenance. NOT.~al response time will be one
411 hour or less from receipt of notice of a problem. Cable Co
op will provide TOG ~ith pagers or Cable Co-~ dispatch numbers
in the event of an emergency. The parties agree to comply with
the emergency restoration procedures set for~h in Exhibit C
attached hereto and incorporated herein.
9. ~. All rightr title and interest in the
co~duit and Cable Co-op Facilities~ Shared Facilities and
Additional Shared Facilities shall at all times remain
exclusively with Cable Co-op. JUI right .. title and interest in
TOGiS head-end equipment installed in the TOG Space and its
facilities and associated equipment provided by TOG and installed
in t.he TCG Space or at TCG's customers' premises shall at all
times re~ain exclusively with TOG. Except as expressly provided
elsewhere in this Agreement. Cable co-op shall continue to hold
and be solely responsible for all operating authority with regard
to the Shared Facilities and Additional Shared Facilities. TOG
shall hold and be respon~ible for all operating autr~rity for the
provision of telecommunications services by it. Should TOG
abandon its equipment and/or facilities~ it shall become the
property of Cable Co-op at Cable. Co-op-s option.
10. Liens and Encumbrances. Neither party~ directly
or indirectly, shall create or impose any lien on the property of
th~ ~h~r~ or on the righ~s or title relating thereto~ or any
interest ~berein~ or in this Agreement. Each party vill
prompot.ly .. at its own expense i take such action. as may be
necessary to duly discharge a~y lien created by it on the
property of the other.
11. Representations and Covenants Regar.ding
AlJtoorizatigM.
Ca) Cable Co-op hereby represents~ warrants ar~
covenants t.o TCG as fol10""s:
(i) Cable eo-C? has made available to TCG
tnle and correct copies of each governmental or muniCipal
approval. franchise and authoriz.ation~ right-of-way agreement.
pole attachment agreement~ conduit agreement and lease, license~
consent or other agreement relating to the Shared Facilities
(all of ~hich are hereinafter collectively cal1e~ ~he
·}!o.uthorizations·J obtained by it , and Ca.ble Co-op has fully
disclosed to TOG any material facts known to Cable CO-CPo which,
in each case, relate to Cable Co-cp's ability to own and operate
tb~ Shared Facilities and perform Cable Co-opts obligations under
':.~is Agreem.ent.
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{ii) Subject to approval by the City of Palo
Alto as already disclosed by Cable Co-op to TOG, Cable Co-op,
exercising its reasonable judgment based upon information
currently available, interprets the Authorizations ~ained by it
as lawfully permitting it to consummate the trartsactions and
p.er(orm. its obligati.ons provided for in this Agreement.
{iii) Cable Co-c~ will use commercially
reasonable efforts throughout the term of this Agreement to
obtain and maint.ain all Authorizations reasonably necessary to
permit it to lease the Leased Facilities to TOG and perform its
obligations under this Agreement.
fiv) Cable Co-op is duly organi%ed, validly
existing and in good standing under the laws of the State of its
incorporation or organi~ation and has full power and authority to
execute, deliver and perform the terms of this Agreement.
(vi There is no litigation. proceeding or
90vernmental investigation to which Cable Co-op is a party which
could result in any material adverse effect on its ability to
pe~form its obligations under this Agreement.
ib} TOG hereby represents, ~rrants and covenants
to Cable Co-op as follows~
(1) Tee has made available to Cable Co-op
true and correct copies of each Authorization ObCained by it. and
TOG bas fully disclosed to Cable Co-op any material facts known
to TCG~ which~ in ea-::h case .. relate to TCG" s ability to use the
Snared Facilities and perform TCG's obligations under this
}I_greement _
{ii) TCG~ exercls~n9 its reasonable judgirle::J.·t
based upon information currently available, interprets the
Authorizations Obcained by it as lawfully permitting it to
consummate the transactions and perior& its obligations provided
f'::lr in this Agreement.
(iii) Tt...."'G ... ill use -commercially reasor.able
efforts throughout the term of this Agreement to ~ain and
maintain all Authorizations reasonably necessary to permit it to
p~rform its obligations under this Agreement.
(iv) TCG is duly organized and validly
e:(isting-under the la'lo.'s of its state of organization and has full
p:)' .. '-;r and authority to execute, deliver and perform 'he terms of
this Agreemer.t.
(v) There is no litigation. proceeding or
g~vernnental investigation to which TOG is a party which could
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result in any material adverse effect on its ability to perform
its obligations under this Agreement.
12. Coqpli~D~e with Lav. Each party shall perform its
:::-espect1ve rights and obligations here',mder in accordance ... ith
the Authorizations obtained by it and all applicable laws 1 rules
and regulations imposed by any governmental authority~
13. Relocation of the Facilities. TC~ recognites
that~ f~ time to time l Cable Co-op may ~lect or be required to
relocate the Shared Facilities and Additional Shared Facilities.
where s~ch relocation is for the convenience of Cable Co-op or a
third party (not to include a government authorityll and Cable
co-op is not required to make such relocation by law or existing
contract~ Cable Co-op sha11 be solely responsible for all costs
incurred to relocate the Shared Facilities and Additional Shared
Facilities. Whel~ such relocation is not fo~ the convenience of
Cable Co-op or a third party. and Cable Co-op is required to make
su~h relocation by la~ or e~isting contract or by the loss of a
rignt-of-waYr TOG shall pay its share~ eased cn the ratio that
the number of fibers included in the Shared Facilities bears to
the total number of fibers in the cable being relocated. of the
direct¥ out-of-pocket costs of such relocation to the extent such
costs cannot be recovered from such third party Cable Co-op will
use ~~~ercially reasonable efforts to effect any relocation in a
manner that will ~ cause any interruption to TC~;s use of the
S~ared Facilities. Cable Co-op shall use commercially reasonable
efforts to give TOG at least six months prior ~ice. if
possible. of any relocation or of any sovernmental proceedings
wl1ich might result in a relocation l and TCG shall have the right:
to participate: at its o~~ expense$ in any su~h governmental
p~oceedingsl if applicable. TOG understands that Cable Co-op may
be required to place any aerial facilities which are a part of
the Shared Facilities underground. TCG agrees to pay its prorata
share of the il'.-cremental costs of placing the aerial portion of
tbe Shared Facilities underground.
14. Condemnatiog and Casualty.
(a) QQndemnatjJ2n. If all or any portion of the
Sha1:ed Facilities or Additional Shared Facilities are taken for
any public or quasi-~blic purpose by any lawful power or
authority by the exercise of the right of condemnation or eminent
domain~ TOG shall be entitled to terminate this Agreement with
respect to such Shared Facilities and Additional Shared
Facilities. In such eventl both parties shall be entitled, to
th~ extent possible under applicable la~. to participate in any
condemnation proceedings to seek to ~ain compensation by either
joint or separate awards for the economic value of their
respective interests in the Shared Facilities and Additional
Shared Facilities and will equitably share any awards as their
~c~nomic interests appear.
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(b) Casualty. If all or any portion of the
Shared Facilities and Additional Shared Facilities are made
inoperable and be}~d feasible repair due t~ a casualty or ¢ther
force majeure event (as thac term is defined in section 20
below)r TOG shall be entitled to terminate this Agreereent with
respect to the Shared Facilities or Additional Shared Facilities
a.ffect.ed. by E',J.cn casua.lty or other force majeure event:. In such
event. ~h parties shall be entitled to s~ek to recover the
economic value of their respective interests in the Shared
Facilities or Additional Shared Facilities (i) under any
insurance policy carried by either par~y or any third party~ or
{i1J in either joint or sep~rate actions~ from any third party
~hich may be legally responsible for causing such casualtYr The
parties will equitably share any recoveries as their economic
interests appear.
IS. ~etary Information. tach party acknowledges
. that~ in the course of the performance of this Agreement, it may
have access to privileged and proprietary infor/l:'.a.tion claimed to
be unique, secret and confidential, and .. -hleb constitutes t.he
exclusive property or trade secrets of the ~her, and the parties
ac~~wledge that they are in a co~fidential relationship with
each other. This informati~~ may be presented in documents
marked with a.festrictive notice or ~herwise tangibly designated
as, proprietary or confidential, or during oral discussions, at
which time representatives of the disclosing party will specify
that the informat.ion is proprietary or confidential and will
reduce such oral disclosure t.o a written document., marked
confiden,tial .. Slnd deliver such document to the receiving party
within ten flO) days of such oral disclosure~ Each party agrees
to maintain t.he confidentiality o,f t.he proprietary information
and to use the same degree of ~are as it uses with regard to its
own proprietary information to prevent the disclosure~
publication or unauthori~ed use of the proprietary information.
Neither party may duplicate or copy proprietary information of
the ~her party other than to the extent necessary for legitimate
business uses in connection ~ith this Agreement. A party shall
be excused from these nondisclos~re provisions if the proprietary
information has b€en., or is subsequently, made public by the
~ber party or is independently developed by sueh party or if the
other party gives its express~ prior written coosent to the
disclosure of the proprietary information or if the disclosure is
required by la~ or regul~tion. NCtwithstanding anything to tbe
contrarf in this Agreernentr this proviSion shall survive the
termination or expiration of this Agreerr.ent.
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16~ Inde~~ification~
(a) lnaennification by~~ TCG will indemnify.
and hold harmless Cable CO-OP. its affiliates~ and all officers,
directors 4 employees~ s~cckholders, partners and a9~nte of Cable
Co-op and its affiliates from and against any and all claims,
dem~nds~ costs 6 damages, lossesr liabilities, joint and/or
several. expenses of any nature (including reasonable attorneysr7
accOuntants' and experts' fees and disbursements) 6 judgments.
fines, settlements and other amounts (collectively. -Damages-J
.rising from any and all claims, demands, actions, suits or
proceedings. civil. criminal, administrative or investigative
{collectively ·Claims-} relating to or arising out of:
(i) The installation and constrJc~ion of
the Shared Facilities, Additional Shared Facilities and the Cable
Co-op Facilities~ and the installation, maintenance or operation
of TOG's connections to the Shared Facilities or Additional
Shared Facilities or the condu.c:t or managemer~t of TCG's busin-ess
with regard to the Shared Facilities or Additional Shared
Facilities or the connections thereto... except to the extent such
Damages are caused or contributed to by Cable Co-op or its
agents;
(ii. 7>.ny breach by TCG of any obligation or
covenant under this Agreement;
(iii) Any failure of any representation or
warranty made by TOG herein to be true in any ~aterial respect as
of the date made or deemed made;
(iv}
relating to the provision
to such customer over the
Facilities; and
Any Claim by any customer of TOG
by TOG of telecorr~unications services
Shared Facilities or Additional Shared
(vJ Any Claim of any third party resulting
from the negligence or wilful misconduct of TCG~
Any indsmnification hereunder vill be satisfied solely out of the
assets of TCG.
(b) rndemp.ificatiQn by C2l.ble_~. Cable Co-op
~11 indemnify and hold harmless TCG~ its affiliates. and all
officers, directors, employees, stockholders; partners and agents
of TOG and its affiliates from and against any and all Camages
a~isin9 from a~y and all Claims relating to or arising out of:
(i) The maintenance or operation by Cable
Co-op of the Shared Facilities; Additional Shared Facilities or
th-!: Cable Co-op Facilities or the conduct or management of Cable
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Co-op~s business~ exce~t to the extent such Losses Are caused or
contributed to by TOG or its agents;
(ii) Any breach by Cable Co-op of any
obligation or covenant under this Agree~ent:
(iii) Any fail~re of any repr~ser.tation or
warranty made by Caqle Co-op herein to b€ true in any material
respect as of th~ date made or deemed made;
(iv) Any Claim by any customer of Cable Co
op relating to Cable Co-op's provision of services (~her than
services provided by TC~, or otherwise attributable to TCG) over
the Shared Facilities~ Additional Shared Facilities or Cable Co
op Facilities; and
~vj Any Claim of any third party resulting
from -the negligence or wilful misco-nd,uct of Cable Co-op.
Any indemnification hereunder will be satisfied solely out of the
assets of Cable Co-op.
{cl Procedure. No clai~s (or indemnification
( shall be made by eitber party against the ~her unless the
aggregate amount. of such claim .. togetber W"itb any othe.r
indemnifia.ble claims of such party .. exceeds t.he amount of $5 .. OOO~
Any reasonable expenses incurred by any indemnified person
pursuant to -this Section 16 in defending any civil ¢r criminal
action~ suit or proceeding {or the threat thereofJ~ ~her than a
claim z action~ suit or proceeding brought by the indemnifying
party. shall be borne and paid by the inde~~ifying party in
aovance of the final disposition of such action.. suit or
proceeding {or the threat thereof] upon receipt of an undertaking
by or on behalf of the indemnified person to repay to the
indemnifying party the amount of su~h expenses if it shall
ultimately be determined -chat such person is not. entitled to the
indemnification provided fo~ ~nder this Section 1~. Any person
asserting a right to indemnification under this section 16 shall
so n~ify the inde~~ifying party in ~iting" If the facts giving
rise to such indemnification involve any actual or threatened
claim or demand by or against a third party, the indemnifying
party shall be entitled to control the defense or prosecution of
such claim or demand in the name of the inde~~ified person, if
the indemnifying party ~iti~s the indemnified pers~~ in writing
of its intention to do so within twenty days of the receipt. of
su~h notice by the indemnified person. The indemnified person
shall have the right .. however~ to participate in such proceeding
through cO:.J.nsel of its O"\IIIIIl cboosing. 'Whicb participation shall be
at its sole expense. Whether or not tbe inde~~ifyiDg party
chooses to defend or prosecute such cl~im. each inderr~ified
person and Cable Co-op or TCG, ~hichever is not the indemnifying
party~ shall~ ~o the extent requested by the indemnifying party
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and at the indemnifying party's expense, cooperate in the
prosecution or defense of such claim and shall furnish su~h
records, information and tes~imony and attend such ~onferences.
discovery proceedings, hearings, trials and appeals as may
reasonably be requested in connection there~ith. The
indemnifying party shall not e;ompromise or settle any claip'. or
action without the inderr~ified party's prior written consent that
does ~ u~~iticnally release the indemnified party from all
claims of liability thereunder, sa.:::h consent not to be
unreasonably witb-~eld.
(d) SUrvival~ The prov2s10ns of this section 16
shall survive the terminatiO!l of this Agreetnent~
(e) The indemnifying party may satisfy the
indemnification requirements out of insurance a~ards.
11. Provision of Insurance Coverage. Each party
or its affiliates shall, at its own expense. secure and maintain
in force, throughout the term of this Agreement# General
Liability Insurance, with competent and qualified issuing
insurance companies. including the foll~ing coverage: Product
Liability~ Hazard of Premises/Operations (including explosion r
collapse and underground coverage]; Independeo·t Contractors;
Products and Completed Operations; Blanke~ Contractual Liability
{covering the liability assumed in this Agreement}; Personal
Injury (including death}; and Broad Form Property Damage in
policy cr policies of insurance such that the t~al available
limits t.o all insureds -.rill not be less than. CQ(1lbined
Single Limit fer each ¢ccurrence and I aggregated for
each annual period. Such insurance may be provided in policy or
policies~ primary and excess. including the so-called umbrella or
Catastrophe forms~ In addition .. TCG shall main·tain in effect,
with insurance companies of recognized responsibility, at its own
expense, additional insurance covering its use of the System of
the type and in amounts as may be standard in the industry and as
may be required by any pole attachment or conduit license
agreements~ as aP9licable~ ~hich insurance shall, among ~her
tbings~ insure against any loss or damage resulting fr~~ TOG's
use of the System. All policies required by this Section ~1
shall be endorsed to sho~ the other party. its parent and
affiliates and its and their directors. officers, agents,
servants, employees and independent contractors as additional
insureds; require the insuran~e companies to notify the other
party at least thirty days prior to the effective date of any
cancellation or material modification of such poli~ies; ~aive all
rights of recovery for property damage to party's property, under
s'...:brogation or othervise, against the other party~ its paZ"ent and
affiliates and its and their directors. officers, agents,
s~rvants, employees and independent contractors; and shall
sp~cify that the policy is primary and shall apply without
consideration for other policies separately carried and shall
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s~ate that each insured is provided coverage as though a separate
. policy had been issued to each. except the insurer's liability
shall not be increased beyond the amount for which the insurer
~uld have been liable had only one insured been covered and only
one dedu-ceible shall apply regardless of the number of insl1reds
eovere.d.
lB~ Eve~ts pf Default~ Each of the following events
shall constitute an event of default (hereinafter 'Event of
oetault-J(wbether any su~h even~ shall be voluntary or
involun~ary ~r occur by operation of law or purauant to any
judgmen~. decree. ord~r, rule or regulation of any court or
a"drnil-.istrative or governmental body):.
(a) the failu~e of a party to make any pa~nt
due hereunder within fifteen days after receipt of notice from a
party that such payment is due~
(b) the failure of either party to carry and
maintain insurance in compliance ... ith all provisions of Section
17 hereof and S'-.lch failure shall continue unremedied for a period
of thirty t30) days after such failure to carry and main~ain such
insu.rance;
(c) the failure of either party to perform or
Observe any material covenant or agreement to be performed or
Obs~rved by it hereunder, and such failure shall continue
unremedied for a period of thirty (30} days after written n~ice
is given to the defaulting party;
{d) a court or governmental authority of
cornpeten't jurisdiction shall enter an order appointing, ....-ithout
consent by either party~ a custodian ... receiver ... trustee ...
interveno~~ or other officer with similar po~eIs with respect to
it O~ ~th respect to any substantial part of its prcpe~ty~ or
-constituting an order for relief or approving a pet.ition in
ba~~ruptcy or insolvency law of any jurisdiction. or ordering the
dissol~tion, winding uP. or liquidation of either party. or if
any su~h petition shall be filed against either party and shall
not be dismissed within sixty (60) days thereafter, or an order
shall have been issued granting either party a suspension of
pay:nen,ts under applicable laW' and any such order is not dismissed
within sixty d3yS thereafter; or
(e) either party shall cease to have any of the
~aterial franchises~ licenses, agreements# certificates,
concessions~ permits, rights or privileges required for the
conduct of its business and operations which loss is not. remedied
by the ~aioing of a replacement franchise. license, agreement~
certificate, concession. permit, right or privilege ~ithin sixty
(50) days of the loss thereof, if such loss would have a material
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ad.-.;r2;r!Ee effect upon t}-.e ability of the partf suffering such loss
to perform its obligations hereunder.
19. Remedies. Upon the occurrence and during the
continuance of any Event of Default~ the non·defaulting party
may. at its option~ declare this Agreement to be in d~fault and
~,ay .. in addition to any other remedies provided h-erein" te't1l\inate
tbis Agreement upon providing three (3) months prior written
notice. No remedy is intended to be exclu$ive~ but eaen sb~11 be
cumulative and in addit ion to ar:.-d rna)!' be exercised concllrren-tly
with any other remedy available to cable Co·op or TOG at law or
in equity_ In addition to all other remedi~s contained herein,
Cable Co-op and TOG agree that if any representation in Section
11 is untrue in any material respect when made and the non
d~faulting party elects ~ to terminate this Agreement, the
parties shall negotiate in good faith an equitable adjustment to
the payment ter~~ hereto ~th the intention of reasonably
compensating the ~her party for any damages it may have
sustained as a result of such representation being untrue \Io'hen
made. I.N NO E"iEN"l' Stu.!.L Elrn::'R PARTY BE LXULE FOR. SPECIAL ..
CONSEQlJElII'"TIAL ... EXEMPLARY OR .PUNITIVE DAMAGES AS A RESUI..'I' OF THE
PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS ONDER THIS
AGREEMENT ..
20. Force Yta;eu.re Events. Neither party shall be
liable to-the ot.her fer any failure of performance ur..der t.his
Agreement due to causes beyond its control.. including but not
limited ~o: acts of God .. fire~ flood or o<her catastropbes; any
laW'." order ~ regulation~ direction .. action or request o.f the
United States Government~ or of any other government .. including
state and local governments -having or claiming jurisdiction over
such party, or of any department:~ agen-cy .. com.-,dssicn, bureau ...
corporation or otber inst.rumentality of anyone or more of these
federal~ stat:.e o-r local governments .. or of any civil or military
authority; natio~al emergeocies; unavailability of materials or
rights-of-way; insurrections; riots; wars; or strikes .. lock·outs"
work stoppages or other labor difficulties (collectively. -force
majeure eVents-].
21. Orderly Termination. Upon -termination of this
Agreement in ~hole or with respect to any Shared Facilities or
~dditional Shared Facilities .. Cable Cv·op and TOG agree to
cooperate in good faith to effect an orderly transition of any
telecommunications services provided over the Shared Facilities
or Additional Shared Facilities. Without limitation. Cable ~o-op
hereby agrees that notwithstanding such termination it ~ill. to
tee extent permitted by applicable law and regulation" til
CO:1t in-ue to make available to TCG any portions of the Shared
facilities or Additional Shared Facilities vhich TOG reasonably
~equires to fulfill its obligations under existing customer
agreements for a period up to three months after such termination
~-the case of a termination for TOG"s default r or twelve months
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after such termination in all other cases. (ii) negot iate
agreements ~ith TCG~ which are reasonable in the independ~nt
judgmer.t of both parties i pursuant to ~hich Cable Co-op w111
provide fiber ~ic facilities to TOG in order for it to provide
telecommunications services in the Service Area~ and (iii) assist
~. at TOG's expense~ in obtaining any Authorizations necessary
for TOG to continue to ~rovide telec~~ications services in the
Service Area.
22. Building Acce.ss cooper.;,;tion. Cable Co-op and TCG
shall cp6perate w1th each ~her in all reasonable respects to
~ain access by each party to building locations anywhere in the
Service Area and with regard to any joint construction and/or use
of any cable installed in any building or other custorrler location
vithin the Service Area.
23.. Network Architecture and Diversitv. Cable Co-op
and TCG shall consult and cooperi'.te with each other 'With regard
to all technical matters relating to network architecture,
diversity and related matters. without limitation, Cable Co-op
and TOG ~ll each designate a technical engineering
representative and each agrees to inform the other of all its
~onstruction plans as in effect fr~~ ti~e to time.
24. Obligations of TOG. In addition to the
obligations o,e TOO set forth elsel/.·here in this Agreement. TCG
snaIl.
(a) have full and complete control.
ras~onsibility and liability for the signals distributed over the
fiber ~ic components of the Shared Facilities and Additional
Shared Facilities by TOG or for its benefit;
(b) have full and <'OIT'tplete control,
responsibility and liability for the purchase~ installation,
construct.ion and tr.aintenance of the terminals and peripheral
equipment connec-teo. to tbe fiber optic components of t.he Shared
Facilities and Additional Shared Facilities used by TOG;
ec) employ its O~ employees~ agents and/or
independent contractors in the handling~ storage~ retrieval,
processing, transmitting~ and/or re~eivin9 of any electronic
signals distributed eyer the fiber ~ic component.s of the Shared
Facilities and }I.dditional Shared Facilities;
{d} provide all commercial or ether power
s'Jpplies for the operation of the fiber optic compor..ents of the
S~a~ed Facilities and Additional Shared Facilities. terminals and
peripheral eq~ipment or facilities used ~th or connected to the
Shared Facilities and Additional Shared Facilities and located on
7CG's~ or its 'Customer's, pr-emises;
11
te) except for local cable fran~bising authority,
have full and complete control~ responsibility and liability for
j3,cquiring and maint.aining any operating autho:city frO<Il any
federal .. state or local gove=r.mental body or agency that. z'elates
t.o the activities of TCG under this Agreement ..
25. ~nments. Neither party shall assign l
transfer, delegate or in any other manner dispose of~ any of its
rights, privileges or obligations under this Agreement ~ithoct
the other partyls consent in ~iting which shall not be
unreasonably withheld I except a party m~y assign this Agreement
without the other party~s consent: (i) to an affiliated entity
controlling, controlled by cr under corr~ control of their
respective parents; (ii) in the case of TOG, to an entity that
has entered into a management contract with or is ~herwise
vested with the right to exercise managerial control over the
provision of telecommunications ser~ices in the Service Area; and
(iii) in connection ~~th a transaction pursuant to which a party
sells all or substantially all of its business, assets or equity
interests. ~y attem~ to make any such assignrnent l transfer or
disposition without consent shall be null and void.
26r Miscellaneous.
Ca}-CQUnterparts. This Agreement may be executed
in coun,terparts each of which shall be deemed an origiI!al and all
of which together shall oonstitute one and the same instrument~
and in pleading or proving any provision of this Agreement~ it
shall n~ be necessary to produ~e more than one complete set of
su~h counterparts.
(b) Captions; Gender~ Article and section
h!adings contained in this Agreement are for reference purposes
only a-nd-shall not in any way affect the meaning or
interpretation of this Agree~ent. Whenever used herein the
singular number shall include the plural, the pllJral shall
include the singular l . and the use of any gender shall include all
genders.
(c) Governipg La~ and Binding Effect. This
Agree~ot shall be governed by and ~onstrued and enforced in
accordance ~th the law tother ~han the law governing conflicts
of law questions) and decisions of tbe State of California
applicable to cootrac~S made and to be performed entirely
thereill~ This Agreement shall bind and inure to the benefit of
each of the parties and their successo':lrs and permitted assigns.
(d) waivers and Amendments. This Agreement may
not be am'ended nor shall any waiver l change, modification~
consent or qischarge be effected, except by an instrument in
writing adopted, in the ,case of an amendment. by each party and~
in the case of a ~aiver~ consent or discharge. by the party
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against: whom enforcement of S'.lch instrument is sought. Any
consent by either party to~ or waiver of, a breach by the other
party shall r~ cons~itute a waiver or consent to any subsequent
or different bl'each. If either pa.rty shall fail to enforce a
breach of this Agreement by the other party. su~h failure to
enforce shall not be considered a consent to or a waiver of said
breach or any subsequent breach for any purpose whatsoever.
(ei Relationship Not a partnership~n Agency.
The relationship bet .. "een TCG and Cable Co-op shall not be that of
partners or agents for one another and nothing c~~tained in this
Agreement shall be deemed ~o constitute a partr.ership, joint
venture or agency agreement between the~~
(f) ~ices. All notices~ requests, demands,
statements, reports and ~her communications under this Agreement
snall be in writing and deemed to be duly delivered, if delivered
in person6 by overnight courier or by certified or registered
mail:
iiI If to TCG. to,
TOG San Francisco
One Bush St.
San Francisco 6 CA
Attn: General Manager
vi th a copy t.o:
Teleport Communications Group Inc.
ODe Teleporc Drive~ Suite 301
Staten lsland 6 Ne''''' York 10311
Attention:. General C~nsel
(ii) If to Cable CO-OP. to:
Cable Communications Cooperative of Palo Alto
3200 Park Boulevard
Palo Alto; CA 94306
with a copy to:
Cooley Godward Castro Huddleson & Tatum
Five Palo Alto Square
3000 E1 Candno Real
Palo Alto. CA 94)05-2155
Attn: Dan Johnston
Either party hereto may" chanse its mail ing adci:-ess by giving
notice to the ~her pursuant to the provisions of this Paragraph.
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(g} Disclaimers. TNERE k~Z NO AGREEMEN7S~
WAlUUNTIES Oil I<.!!PRESEN'EATIONS. EXPRESS OR IKPLIED EITli"R IN FACT
Oil BY OPERA'rION OF LAW. STAT\JT;)RY OR OTHERWISE. INCLUDING
WAAAA.'!TIES OF J<ERC!i>.N'l'A!lUI'l'Y ANI> FITNESS FOil A PAR'l'ICOLAR
PURPOSE Oil OSE. EXCEPT THOSE EXPBXSSLY SET FORTH HEREIN.
{h} Entire Agreement. This Agreement, including
the exhibits T schedules and annex~s hereto~ which are hereby
incorporated by reference and made a part of this Agreement as if
t.hey were set fo-rtb "herein hi their' entirety .. constit-utes the
entire &greement bet .... es.n Cable Co.-op and T03 ..,ith respect to the
subject mat.ter hereof and supersedes all prior agreements and
~nderstandings between them as to such subject matter, and there
are no restrictions, agreements~ arrangements or undertakings~
oral or writte~i bet~een cable Co-op and TOG relating to the
transactions contemplated hereby which are n~ fully expressed or
referred to he~ein.
(i) Severability. If any term.. or other provi.sion
of this Agreement is invalid.. illegal or incapable of being
enforced by any rule of la~ or public policy# all ~her
conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the eoonomic or legal
substance of the transactions contemplated hereby is ~ affected
in any ~anner adverse to either party. upon s~ch determination
that any term or Qther provision is invalid l illegal or incap3ble
of being enforced~ ~he parties hereto shall ne~iate in good
faith to modify this Agreement so as to effect ~he original
intent of the parties as closely as possible in an acceptable
manner to the enc that transactions contemplated hereby are
fulfilled to the greatest extent possible.
(j) further Assurances. Each party agrees to
execute all such further instruments and documents and to take
all such further actions as the other party ~ay reasonably
request in order to effectuate the terms and purposes of this
Agree-reer~t .
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the date first above 'Written.
TOG San Francisco
By, ____ _
Title~ _______________ _
Cable Communications Cooperative
of Palo Alto .. Inc.
By, ____ _
Title: _____________ _
20
-"
.; :;
-. ~~ ~ ~ ~~:~"\~ ... ;"~~-:~,
-~ --<
SCHEOO'LE 1
pe$cri~ion of Shared Facilities:
[Attach As-Built Drawings]
Initial Build:
Location Identifier:
Street Address~
Node:
Termination Point:
Number of Fibers:
Route Fee~ {Miles):
Splice Points:
Pest :Basis:
Total COSt to Build: $'------
Total Fibers:
Incremental Cost to Build: Ie $_---
Allocated Cost: AC $,---
• I •
I ,
I Exhibit"
~phic Area serywd by shared Faciljti~
/~::~
~,:-~ ;;
g4ibit II o
Facilities Maintenan>e
U£!Lt:l'1ES MAIlITENhNCS:
Cabl~ Co-op $hall be ~e.ponsible tor the preventive
m~intenance of the Shared Facilities. Generally su~h mainte~Ance
i$ expectea to in~lude pole and manhole maintenance~ pole
transfers as r~qui~ed and r~ute in$pectlons~
TOG $hall rei~r$e Cable Co-op for it sh~re of
m#inten~nc~ and re$t¢~ation at ~he foll~ing rat~s:
7hese ~~tes are subject to ,easonable i~reases over time and in
accord~nce with industry standards.
2.
3.
..
>.
TOG will perform the following tests:
• Bi -directional splice 1055 4 for each splice.
• Overall attenuation end-to-end to be conducted
from distribution frame to distri~tion frame at
each customer location as app1ica.ble.
• TOG s~all use the attached forms for testing as
app1icable·~ Cable Co-op may request a6d.itioc.al
tests as it deems necessary~
Upon comp1etioc of all acceptance testing, TOG will
submit to cable Co-op all test data sh~ets~ and ~ical
records via OTDR for review of correctness and
completeness +
TOG will be required at time of data review to $ubmit
ooe set of as-built working drawings for all facilities
covered un~er these acceptance testing criteria.
As part of the turnover as-built documentation package,
TCG ""ill supply the follo"lliing detailed documents:
• Cable routing dra~i09s inclu~ing cable splicing
detail and cable cross section.
• Manhole ana duct assignments as ~pplicable~
• Aerial pole assignments ~ere applicable.
• Cabl~ termination dra~ings and assi9nm~nts~
• Copies of permits and construction approvals from
appropriate authorities~
Cable Co-op may request additional tests and
documentation as reas~~ably necessary.
-. • Cable Co-op
aarnord M. Strojny
Assi.tant City Kan&q.r
City of Palo Alto
~50 HuUton A_.
Palo Alto, CA 94101
!leu 1Ir. strojny:
1 w~t to thank yau and Oi.nab .ert for takl~ the time to
_t vith Toay ICId" an4 lie earUer this veH. As.
r_y,lt of that. ... 1:109, we are _srre..tlle ti;) plaa. our
pet! tion of J.""ary U OIl toporuy holel 1n oreler Cor the
Cl~y aftd cable CO-op'. attornay. to 4eteraln. Wbl~h i. ~e
beet vay to proceed. 111>110> the 1'CG oqu ... nt b of
crIt1cal 1IIportanc. for "0, an4 YO atUI .eH timely
cesol~tlon, •• V&ftt to avoid the cantu.lon that lurtacad
reqarelin9 tho earlIer Tel .~ • .aont.
A.8 .tatild 1". the :January 13 letter, the pg.rposa of tlIe TCG
aqr.'lI!e1!t {a to allow Cal:>l. CO-op to enter into the
~etitlve aeeea. provider tnd".try under t.rsa which
vill prl)t.act our exi.tinq rat. payer.. lie a110 ••• the
~ azr~."t •• th. first .tep In upqra4inq our -.'
eal:>le to • hybriel fi~r to • nod. vith coaxial
4i.tributlo~ 4eolqft.
We ueoqnl .. that. Cabl. Co-op'. planning and lJIpl_ntaUon of libel' optic tRChtloloqy __ t
paraltel. the City'. p~oc ••• ~ cable Co-op reaains
. ., ...... It_ to vorki~ "ith U.s City An4 both eneourag_ An4
v.l~o.ea City partiCipation in our .yates. Wothift9~. ~e
6C1~. or have planned. will ,tand in tho vay of the city
vork1ng vlth caI:Ile co-op. we vie" our .ffort. a. a :m4ans
of Iaprovi~ our ccwzon co.pet1tive position.
3200 Park BouleVArd
POllr, Attn, CaIiforn i<a. 94306
n5·~·SI';1
cP3.) =.!""!S'1:)
.'.-:
,-
·-.
1111 you 1tnov. Cul. co-cp b unlqu. in tho opln .. Mar ir>
whleb it c:onduc::t. it. blain.... W. looll fot"VUIS to
): ..... l"'l' you., other city .taff and the councll fully
,,,roBeIS ot our plan. 1n tho hope that you Ifill eboose to
partIcIpate v1th ua.
ce, AEi.l COlonna (tala Alto)
Ron And........ (talo Uto)
Dianah •• ff (Palo AltO)
Glori. y""nq (Palo Uto)
Tony Xlaln (Cooley Gcdward)
. Chula. X. Levin. ('l'CG)
Brad An4er.on
CEO/_rol Xanaqar
,
Barnard K. Strojny
Aa.latant City Manaqar
City ot Palo Alto
2~ Baallton Av ••
Palo Alto, CA "301
Dear Hr. Strol~y:
.'.-.
\ 'r
Janu&ry 1', 1995
'l8&se con.ider thl1 l.tter •• a petition pu?5uant to
section 14 ot our franehl •• for approvIl z if necessary.
of an aqrea •• nt ~t.".n C'a.bl. Co-op .nd '%'CC San IT&neiaco.
To .vo14 confuaion, l~ 1. isportant to note that thi&
reqy •• t 1. antirely 8apar.te froa our request tor approval
of the •• curlty int.rest by Tel C3bl.vl.ion Of CalIfornia,
Inc. 1n • liaited amount o~ fibor optie eable bUilt within
our franehia. area.
l'ha pw-po •• of the TCG ''P' .. "",nt ,. to 8110w cable Co-op
'to enter into the oospetltlva acceas provlc!er induatry
under term5 Which will protect our e~l.tlnq rate p6y.r.~
The .r.c10 •• ~ aqre ... nt le • fitlt draft prov1de4 by TCG~
~1. notIce i. int.nd.4 to start the City'a review process
und.r our ~ranchi •• Vbil. allowinq v. to Include any City
requlr.-ents In the tinal yer.l~n. Pl •• se hOte ~.t a
ii.lted a.ount of financial information ha. been blacXeQ
out. J WOUld be ha.ppy to .bare the all!olling-intonation
with you orally and explaia any other aspect of the
propoo'" .~e ... nt IIl>oUt Vbich you .... y hav. q\>"UC>lls.
our attorneys .re wo~king wi~ reG'. 1agal ~~.l to
tinell~Q thl. agre ••• n~~ Tb.r.fore~ yo~r timely c!.ci.i~n
on wI-.ether Council approv&l i. needed: en6" It so. your
facilitAtion of that 1. appreciated.
Sincer.ly.
/'J/lL ..
Brad. ~e.r&On
CEO/General M&naqer
'.
. ·
~c~ ~1.~ Ca~onn~ (Palo Alto)
ROn Ander.on (Palo ~lto)
nl&.~h H.~f (Palo Alto)
Gl~i. Y~9 (Palo Alto)
TOny lU.e1n (Cooley Godwarcl) w/o onclooure
Charles II. Levin. ('I'cGl "/0 enclosure