HomeMy WebLinkAbout26 AT&T (PROJECT LIGHTSPEED) 09-05-06
AGENDA REPORT
MEETING DATE: SEPTEMBER 5, 2006
TO: WilLIAM A. HUSTON, CITY MANAGER
FROM: CITY ATTORNEY
SUBJECT:
AGREEMENT WITH PACIFIC BELL D.BA AT&T CALIFORNIA
REGARDING VIDEO SERVICES (PROJECT L1GHTSPEED)
SUMMARY:
AT&T has launched a project in the City to upgrade its communications facilities to
provide video services. The City Code requires providers of video services to obtain a
franchise, pay a franchise fee, and comply with other regulations. AT&T claims that its
video service is a telecommunications service that is not subject to regulation by the
City under its cable franchising regulations. Instead of a franchise agreement, AT&T
proposes to enter into the attached Video Services Agreement, which preserves the
rights of the parties in the event legislation in the State or the U.S. Congress affects the
terms of the Agreement.
RECOMMENDATION:
Reject the proposed agreement unless AT&T agrees to provide sufficient support to
carry the City's local governmental programming on their video services system.
FISCAL IMPACT:
In the proposed agreement and impending State and Federal legislation, AT&T will be
responsible for paying 5% of gross video service revenues to the City. The City
currently collects approximately $500,000 per year in cable television franchise fees
from Cox Communications and Time Warner based on a 5% franchise fee on the cable
companies' gross cable services receipts. The cable companies further provide
equipment support to carry the City's live governmental programming in their systems,
which AT&T is not fully willing to do.
BACKGROUND:
SBC, now merged with AT&T and using the AT&T brand, has launched a project in the
City to upgrade its communications facilities to provide video services.
The City Code requires providers of video services to obtain a franchise, pay a
franchise fee, and comply with other regulations pertaining to customer service
standards, support for governmental programming, and the extension of facilities
throughout all residential areas (anti-red lining or anti-cherry picking).
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AT&T claims that its video service, which will be delivered on demand through the
Internet networking protocol, or "IP," which it calls an "IP-enabled Video Service," is a
telecommunications service that is not subject to regulation by the City under its cable
franchising regulations.
After months of discussion, AT&T is proposing to enter into the attached Video Services
Agreement, which addresses many of the City's issues with respect to its management
of the public rights-of-way, while preserving the parties' rights in the event that
legislation currently being reviewed by the State Legislature and the U.S. Congress
affects the proposed agreement. However, staff is not supportive of the proposed
support for local governmental programming, and AT&T is not willing to consider the
support requested by staff.
DISCUSSION:
On June 19,2006, the City Attorney provided the City Council information pertaining to
AT&T's Project Lightspeed and on the proposed legislation that would preempt the
City's regulatory authority over the phone company's entry into the video programming
market using facilities in the City's right-of-way. After some discussion and a
presentation by AT&T representatives, the City Council directed City staff to come back
with a proposed agreement.
The attached agreement addresses the issues outlined for the City Council in the City
Attorney's June 19, 2006 report as follows:
o Under Section 3(a) AT&T agrees to provide compensation to the City in an
amount of 5% of the gross revenues collected by AT&T for its IP Video service.
The proposed agreement incorporates the definition of "gross revenue"
applicable to the Comcast Cable Television franchise.
o Under Section 3(b), AT&T agrees to carry the City's noncommercial educational
and governmental programming (EG), which include the carriage of televised
Council meetings. AT&T and the City will work together to develop the
technology necessary to convert the City's programming to work within AT&T's
video protocol. AT&T will provide a one time cash grant to cover the City's initial
costs of purchasing the necessary equipment to convert its EG content into a
form that can be carried by AT&T's system. However, this may not be sufficient
to support the carriage of the City's programming in AT&T's video services
system as more fully explained below. Additionally, the City would be
responsible for programming content.
o Under Section 5(a), A T& T agrees' to refrain from discriminating between or
among City residents, but AT&T would not agree to a firm date for build-out of
their system in the City. Instead, AT&T agrees to provide its IP Video service to
all areas of the City through satellite or other alternative technology that provides
comparable content, service and functionality.
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. Under Section 5(b), AT&T agrees to comply with the customer service standards
adopted by the FCC, the State of California, and any additional standards
mutually agreed upon between the City and AT&T.
. Under Section 8, AT&T agrees to indemnify the city for any claims, injuries or
damages arising out of their physical use of the City's right-of-way or the
installation and maintenance of its facilities in the right-of-way.
While the proposed agreement addresses most of the City's initial concerns, EG
support is still an issue. AT&T proposes a one-time cash grant in an unspecified
amount that cannot be negotiated at this time because AT&T has not disclosed the type
of equipment which the City would need to deliver the City's programming content to
AT&T for inclusion in AT&T's system. Furthermore, a one-time cash grant that only
covers the initial acquisition cost of equipment will not be sufficient to support the
ongoing carriage of governmental programming by the City in AT&T's system. Not only
does the City currently not know what type of equipment it would need, but if the
equipment includes computers or computerized systems, it may become obsolete in a
relatively short time (computerized equipment is normally amortized over a three-year
period).
By way of contrast, Comcast (now Time Warner) and Cox provided the City with
$100,000 each to purchase equipment and upgrade the video facilities in the Council
chambers. The $200,000 was spent quickly. Furthermore, Time Warner and Cox
agreed in their franchises to train City staff on the use of the equipment, and agreed to
replace it during the term of the franchise should the equipment become obsolete or
inoperable. In addition, Cox extended a fiber optic connection between City Hall and its
service area to properly carry the City's governmental programming in their system at a
substantial cost. This on-going support has proved vital to the City's ability to continue
to carry live programming on the City's governmental channels over the cable television
systems operated by Time Warner and Cox.
The City has proposed to AT&T that the agreement substitute the following language at
Section 3(b) of the attached agreement (the sentences in bold differ from the language
in the attached agreement):
(b) Public. Educational and Governmental Proarammina. GRANTEE shall
designate and allow sufficient capacity on its network and GRANTEE will
carry CITY's noncommercial, public, educational and governmental (EG)
programming made available and delivered by CITY to GRANTEE.
GRANTEE and CITY will coordinate to develop the technology
necessary to convert CITY's EG programming to work within
GRANTEE's IP enabled communications network video protocol.
CITY will be solely responsible for all EG programming content.
However, GRANTEE will provide and maintain all equipment
necessary to enable the delivery of CITY's live EG programming to
GRANTEE's network, including the carriage of televised Council
meetings. CITY and GRANTEE agree that the cost of equipment
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provided herein shall not be treated as, included in, or part of, the
compensation provided for in Subsection (a) above.
However, AT&T's counsel has advised us that they cannot agree to the language staff
has proposed above.
The Council should further note that the proposed legislation at the State and the COPE
Bill at the Federal level would include a payment to the City of 1 % gross receipts fee (in
addition to the 5% franchise fee) for Public, Educational and Governmental
programming support, which may not be sufficient to pay for the costs of financing the
initial purchase of necessary equipment, and ongoing maintenance, depending on the
number of subscribers AT&T is able to sign up and maintain in the City.
For the foregoing reasons, staff recommends that the Council reject AT&T's proposed
agreement unless AT&T agrees to provide sufficient support to carry the City's local
governmental programming on their video services system.
Respectfully Submitted,
OMAR SANDOVAL
DEPUTY CITY ATTORNEY
Enclosure
cc: William A. Huston, City Manager
Tim D. Serlet, Public Works Director
Elizabeth A. Binsack, Director of Community Development
Joe Meyers, Administrative Services Manager
Douglas C. Holland, City Attorney
CITY OF TUSTIN
AT&T VIDEO SERVICES AGREEMENT
THIS RIGHT OF WAY AGREEMENT, dated , is between the CITY OF
TUSTIN, a municipal corporation of the State of California ("CITY"), and PACIFIC BELL
TELEPHONE COMPANY, a California corporation doing business as AT&T California
("GRANTEE").
RECITALS
WHEREAS, GRANTEE is in the process of upgrading its existing telecommunications
network to provide an integrated Internet Protocol ("IP") enabled broadband platform of
voice, data and video services, the video component of which is a switched, two-way,
point-to-point and interactive service ("IP-enabled Video Service"). This network
upgrade will involve the use of the CITY's public rights-of-way."); and
WHEREAS, GRANTEE believes that the franchise it has from the state pursuant to
Public Utilities Code 9 7901 ("Section 7901") encompasses this network upgrade, and
that GRANTEE is not required to obtain a franchise or other authorization from the CITY
to offer IP-enabled services including IP-enabled Video Services over its network within
the CITY limits; and
WHEREAS, CITY believes that the provision of IP-enabled Video Services by
GRANTEE is beyond the scope of Section 7901 and is subject to CITY's local
franchising authority; and
WHEREAS, CITY wishes to conserve the limited physical capacity of the public right-of-
way held in trust by it, and wishes to establish terms and conditions with respect to the
use of the public right-of-way by GRANTEE; and
WHEREAS, Both parties agree that the deployment of the network upgrade and the
provision of IP-enabled Video Services should not be delayed by litigation to establish
the scope of Section 7901 or the application of the CITY's franchise ordinance to IP-
enabled Video Services; and
WHEREAS, CITY and GRANTEE further agree that litigation to resolve this issue would
be complex and protracted, and that it is in the best interests of both Parties and the
residents of the CITY to reach a compromise of each other's positions and claims.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
CONDITIONS SET FORTH HEREIN, THE PARTIES ENTER INTO THIS
AGREEMENT.
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AT&T Video Services Agreement
SECTION 1.
TERM.
The term of this Agreement is five (5) years, commencing on ,
unless it is terminated earlier as provided for below or in Section 20. The term may be
extended for a period not to exceed five (5) additional years upon mutual agreement of
the Parties, and is subject to the following:
(a)
(b)
The parties agree to consult in the event that, after the Effective Date, any court,
agency, commission, legislative body, or other authority of competent
jurisdiction issues a finding that limits the validity or enforceability of this
Agreement, in whole or in part. Should the finding be final, non-appealable and
binding upon either CITY or GRANTEE, this Agreement shall be deemed
modified or limited to the extent necessary to address the subject of the finding
unless either party, within thirty (30) days of receipt of the ruling, provides written
notice to the other party of election to terminate, in which case this Agreement
shall terminate within six (6) months or such earlier period as the parties mutually
may agree. Where the effect of a finding is a modification, the parties shall enter
into good faith negotiations to modify this Agreement in the manner which best
effectuates its overall purposes and the intentions of the parties. Failure to reach
a mutually satisfactory modification within ninety (90) days of the commencement
of such efforts shall entitle either party to terminate the Agreement on the
provision of thirty (30) days' written notice.
Either party may request to negotiate a modification to this Agreement that shall
take effect immediately after the thirty-sixth (36th) month of the term of this
Agreement if at any time any action by a court, agency, commission, legislative
body, or other authority of competent jurisdiction repeals, modifies or clarifies
state or federal law with respect to the rights, duties, privileges, exemptions,
immunities and or authority of either CITY or AT&T California as it existed on the
Effective Date of this Agreement, in whole or in part, relative to the provision of
the IP-enabled Video Services product which is the subject of this Agreement. In
the event a party requests modification to the Agreement as provided in this
paragraph, should the parties be unable to reach a mutually satisfactory
modification within ninety (90) days of the commencement of such efforts, either
party may terminate the Agreement on the provision of thirty (30) days' written
notice.
SECTION 2.
RIGHTS GRANTED.
CITY grants to GRANTEE a non-exclusive right, subject to the recitals, reservations,
covenants, and conditions herein contained, for the construction, installation,
maintenance, operation and removal of the IP-enabled communications network within
the CITY's public rights-of-way that are located within the corporate limits of the CITY,
subject to obtaining all required permits and approvals.
SECTION 3.
CONSIDERATION.
(a) Compensation. During the term of this Agreement, GRANTEE shall pay to CITY
a fee of 5% of the gross revenues from fees collected from each subscriber to
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GRANTEE's IP-enabled Video Services product delivered over the IP-enabled
communications network in the CITY's rights of way; such product to be defined
by GRANTEE prior to GRANTEE's marketing and offering it to subscribers in the
CITY. The fee does not apply to non-video revenues or the non-video revenues
of a bundled product containing IP video and non-video offerings. The fee will be
identified and passed through on any subscriber bill by GRANTEE and all such
fees collected will be forwarded to CITY quarterly on the last day of each quarter
after collection. For purposes of this section, "Gross Revenues" shall mean all
revenues received by GRANTEE, directly or indirectly, for IP-enabled Video
Services provided to Subscribers in the City of Tustin using the Public Rights-of-
way, excluding taxes, regulatory fees or other assessments collected for
governmental authorities, bad debt expense, subscriber deposits and other
amounts that may be excluded by applicable law.
(b) Public. Education and Governmental Proqramminq. GRANTEE shall designate
and allow sufficient capacity on its network and GRANTEE will carry CITY's
noncommercial, educational and governmental (EG) programming made
available and delivered by CITY to GRANTEE, including the carriage of televised
Council meetings in a format compatible with GRANTEE's system. GRANTEE
and CITY will work together to develop the technology necessary to convert
CITY's EG programming to work within GRANTEE's IP enabled communications
network video protocol. GRANTEE shall provide CITY a one time cash grant to
cover the initial costs of converting CITY's EG content into a form that can be
placed on the internet and uploaded onto GRANTEE's system. At its election
GRANTEE may pass the grant amount onto its subscribers. CITY will be solely
responsible for all EG programming content.
(c) Emergency Message. GRANTEE will retransmit emergency alerts on its IP-
enabled Video Services consistent with federal standards and in the event the
CTIY declares a public safety emergency.
SECTION 4.
INSTAllATION CONCURRENT WITH SCHEDULED
PROJECTS; DAMAGE/RESTORATION PAYMENT.
GRANTEE shall make a good faith effort to perform any excavation or boring and
installation of it IP Network facilities in coordination with the CITY's street improvement
projects.
SECTION 5.
SERVICE STANDARDS.
(a) Service Area. GRANTEE shall not discriminate between or among any group of
individuals in the provision of its I P enabled Video Service because of the income
of such group and will offer video services to all residential areas of the CITY
within GRANTEE's service territory through the use of its network or (i) direct-to-
home satellite service or (ii) another alternative technology that provides
comparable content, service, functionality, within twelve (12) months of the
effective date of this Agreement, except:
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AT&T Video Services Agreement
(1) for periods during events reasonably beyond the ability of GRANTEE to
anticipate and control, such as acts of God, incidences of terrorism, war or
riots, labor strikes or civil disturbances, floods, earthquakes, fires, or
explosions;
(2) for periods of delays caused by the CITY;
(3) in areas where developments or buildings are subject to claimed exclusive
arrangements with other video services providers;
(4) in developments or buildings that the GRANTEE cannot access under
reasonable terms and conditions after good faith negotiation;
(5) in developments or buildings that GRANTEE is unable to provide service
for technical reasons or which require facilities that are not available on a
commercially reasonable basis; and
(6) in areas where the occupied residential household density is less than
thirty (30) households per mile in areas passed by overhead facilities or
fifty (50) households per mile in areas passed by underground facilities,
provided that permission as may be required from the owner of the
property is reasonably available, and provided that service to multiple
dwelling units need be provided only on terms acceptable to Grantee
consistent with the exceptions herein.
(b) Customer Service. GRANTEE shall meet the customer service standards
adopted by the Federal Communications Commission (FCC) (CFR 76.309), the
State of California (Government Code sections 53054 et seq. (Cable Television
and Video Provider Customer Service and Information Act) and 53088 et seq.
(Video Customer Service Act)), and any additional standard mutually agreed
upon between GRANTEE and the CITY.
SECTION 6.
INSTAllATION AND USE STANDARDS.
(a) Conformance with Applicable Law. GRANTEE shall place, construct, install,
own, control, operate, manage, maintain, or use its facilities in the public right-of-
way by first obtaining all necessary or required permits, agreements, or
approvals from CITY and all other governmental entities with jurisdiction over the
facility or public right-of-way. GRANTEE shall maintain its facilities in compliance
with such permits, agreements, or approvals, and all applicable statutes,
ordinances, rules, regulations, orders, and decisions issued by any federal, state,
or local governmental body, agency, or court.
(b) Time. Place and Manner. GRANTEE's facilities shall be located, constructed,
operated, and maintained in the time, place, and manner that causes the least
interference with the public's use of the public right-of-way, and the rights or
reasonable convenience of property owners who adjoin the public right-of-ways,
all as determined by and approved by the City Engineer in conformance with the
Tustin City Code, including, but not limited to, encroachment permits for street
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515776.2
work, street excavation, use, removal and relocation of property within a street,
and other street work, and design review of above ground cabinets and/or other
similar facilities pursuant to Ordinance No. 1213, codified at Part 6 of Chapter 2
of Article 7 of the Tustin City Code.
(c) Relocation/Removal. GRANTEE shall remove or relocate, without cost or
expense to CITY, any facilities if and when made necessary by any change of
grade, alignment or width of any street, sidewalk or other public facility, or other
governmental use of the right of way. In addition, in the event all or any portion
of said public right-of-way shall be needed by CITY or in the event the existence
of GRANTEE's facilities shall be considered detrimental to the public health,
safety, welfare, or convenience or to governmental activities, or is in conflict
vertically and/or horizontally with any proposed CITY installation (for a
governmental purpose), GRANTEE shall remove and relocate said facilities at
their sole expense to such other location or locations on said public right-of-way
as may reasonably be designated by the CITY in consultation with GRANTEE.
Said removal or relocation shall be completed within a reasonable time frame as
mutually determined by CITY and GRANTEE. In the event said facilities are not
removed or relocated within the agreed-upon time frame, CITY may cause the
same to be done at the sole expense of GRANTEE.
(d) [Reserved]
(e) Correction of Plans. Approval by CITY of the plans and specifications shall not
release GRANTEE from the responsibility for or the correction of any errors,
omissions or other mistakes that may be contained in the plans and
specifications.
(f) Malfunctionina Eauioment. GRANTEE shall remove and replace or repair any
non-functioning or malfunctioning equipment within forty-eight (48) hours of
receiving notice of the malfunctioning or nonfunctioning equipment as determined
by the City Engineer.
(g) Restoration Uoon Comoletion. Upon the completion of each installation or
removal of equipment or facilities by GRANTEE under this Agreement,
GRANTEE shall promptly restore all affected areas to a clean and safe condition,
normal wear and tear excepted, and to new construction standards. The
provisions of this section shall survive the expiration, completion or earlier
termination of this Agreement.
(h) Standard of Care. GRANTEE shall use and exercise due care, caution, skill and
expertise in performing all work under this Agreement and shall take all
reasonable steps to safeguard work site areas, including without limitation
existing facilities and property.
(i) Protection of Traffic. GRANTEE shall plan, organize and perform its work under
this Agreement in the manner that results in the least amount of traffic disruption.
GRANTEE shall provide all signs, barricades, arrowboards, lights, high-level flag
trees, flag personnel and other devices, materials or personnel that may be
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needed in connection with the safe and careful performance of the work allowed
under this Agreement.
0) Protection of Other Utilities. GRANTEE shall not disturb or disrupt the operation
or maintenance of any sanitary sewers, storm drains, gas or water mains, or
other underground conduits, cables or mains in connection with the work to be
performed or services to be provided by GRANTEE under this Agreement.
(k) Repair or Replacements. GRANTEE agrees to repair or replace at GRANTEE's
sole expense and to City Engineer's satisfaction any facilities or property that
CITY reasonably determines has been damaged, destroyed, defaced or
otherwise injured as a result of the work performed or services provided by
GRANTEE under this Agreement.
(I) Contact Number. GRANTEE agrees to provide a local or toll free public
information telephone number to CITY for referral of any inquiries that may arise
regarding the installation of GRANTEE's facilities.
(m) Performance by CITY. In the event GRANTEE fails to perform any of its
obligations under this Agreement within a reasonable period after delivery of
written notice of such failure and CITY performs any work including, but not
limited to repairing or maintaining the street improvements, CITY shall only be
obligated to perform such work in a manner consistent with the standard
practices of the CITY in performing street work and construction. CITY shall not
be obligated to repair or replace any materials or improvements in a form or
manner consistent with GRANTEE's plans and specifications, and CITY shall not
be responsible for any damages to GRANTEE as a result of CITY performing
such work, including, but not limited to, severance damages. GRANTEE shall
reimburse CITY for its reasonable costs, including allocated overhead, of any
work performed by CITY pursuant to this subsection.
SECTION 7.
SECURITY.
Prior to the commencement of any work hereunder, GRANTEE shall furnish or cause to
be furnished to CITY a good and sufficient bond, in the form approved by the City
Attorney, entitled Performance Bond, for the minimum amount of One Hundred
Thousand Dollars ($100,000.00), or such other comparable security instrument as
approved by the City Attorney, securing the faithful performance by GRANTEE of all the
terms and conditions of this Agreement; provided, however, that CITY shall not require
GRANTEE to obtain a performance bond so long as (i) GRANTEE is not in default of
any terms and conditions of this agreement or any permit issued by CITY; (ii)
GRANTEE's contractors are adequately insured and bonded; and (iii) GRANTEE
maintains its self-insurance retentions at levels reasonably satisfactory to CITY.
SECTION 8.
INDEMNITY.
GRANTEE agrees to and shall defend, indemnify and hold CITY, its officers, agents,
employees, and representatives harmless from all suits and causes of action, claims,
charges, damages, demands, judgments, civil fines, and penalties or losses of any kind
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or nature whatsoever, arising out of GRANTEE's physical use of the CITY's rights-of-
way or GRANTEE's installation and maintenance of its facilities within CITY's right-of-
way for all claims of any kind including without limitation, for damage or claims for
damage for personal injury, including death, and claims for property damage that may
arise directly or indirectly from this Agreement, GRANTEE's installation and
maintenance of its facilities within CITY's right-of-way or damage to GRANTEE's
facilities, except and to the extent caused by CITY's negligence, willful misconduct or
criminal acts, including but not limited to those that arise out of : (1) the performance or
the failure to perform the obligations in this Agreement by GRANTEE, or its contractors,
subcontractors, agents, employees, or other persons acting on GRANTEE's behalf and,
(2) the design, placement, maintenance, repair, or condition of GRANTEE's installation
of its facilities within CITY's right-of-way. This indemnity and obligation to hold harmless
shall apply regardless of whether or not CITY prepared, supplied, or approved plans or
specifications or inspected any of the work or improvements installed and constructed
pursuant to this Agreement. Specifically, and without limiting the foregoing, GRANTEE
agrees to defend, indemnify and hold harmless CITY, and its officers, agents and
employees and representatives from the following damages or claims for damages,
except and to the extent caused by CITY's negligence, willful misconduct or criminal
acts, including but not limited to those that arise out of: (1) any damage or claims for
damage to GRANTEE's facilities caused by any excavation or work performed by CITY
at or near the location of GRANTEE's facilities, (2) any indirect, special, punitive or
consequential damages (including, but not limited to, any claim for loss of services) to
GRANTEE, or any other person arising from any damage to GRANTEE's facilities, and
(3) any damage or claims for damages resulting from damage to GRANTEE's facilities
caused by third persons.
SECTION 9.
LIMITS OF CITY LIABILITY.
In no event shall CITY be liable, under any theory, to GRANTEE for any damage to
GRANTEE's facilities caused by any excavation or work performed by CITY at or near
the location of GRANTEE's facilities except and to the extent caused by CITY's
negligence, willful misconduct or criminal acts. Neither party shall be liable, under any
theory, to GRANTEE for any indirect, special, punitive or consequential damages
(including, but not limited to, any claim for loss of services).
SECTION 10.
INSURANCE.
GRANTEE, at its sole cost and expense, for the full term of this Agreement, shall obtain
and maintain at minimum all of the following insurance coverage:
(a)
Tvpes of Insurance and Minimum Limits. The coverage may be satisfied by any
combination of specific liability and excess liability policies.
(1) Workers' Compensation and Employee Liability Insurance in conformance
with the laws of the State of California for the statutory limits.
(2) GRANTEE's vehicles, including owned, non-owned (e.g. owned by
Grantee's employees and used in the course and scope of employment),
leased or hired vehicles, shall each be covered with Automobile Liability
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(b)
(c)
(d)
(e)
(3)
Insurance in the minimum amount of One Million Dollars ($1,000,000.00)
combined single limit per accident for bodily injury and property damage.
GRANTEE shall obtain and maintain comprehensive or commercial
General Liability Insurance coverage and shall include, but not be limited
to, coverage for premises operation, explosion and collapse hazard,
underground hazards, contractual insurance, broad form property
damage, independent contractors, and personal injury liability. The limit of
such insurance shall be at least One Million Dollars ($1,000,000.00)
combined single limit liability for personal injury and property damage.
CITY may, by resolution, from time to time, reasonably increase said
insurance to the amounts which other contractors operating within the
public right-of-way in a manner similar to GRANTEE and operating in the
jurisdiction of CITY are required to provide so long as said increased
coverage is reasonably available.
(4)
CITY and its officers and employees shall be named as additionally insured by
endorsement (except for workers' compensation) at no cost to CITY.
Prior to commencement of any work, GRANTEE shall furnish proof to CITY that
satisfactory policies of insurance described above are in place issued by
companies licensed in California rated Grade "A" or better and Class VII or better
by the latest edition of Best's Kev Ratina Guide. A Grade B will be accepted for
workers' compensation.
All insurance policies shall provide that in the event of material change,
reduction, cancellation, or non-renewal by the insurance carrier for any reason,
not less than thirty (30) days notice will be given to the CITY by registered mail of
one (1) copy of a written notice of such intent to cancel or not to renew the
coverage. An authorized agent of such insurance carrier shall provide to CITY,
on such schedule as is reasonably requested by CITY, a certification that all
insurance premiums have been paid and all coverage are in force. If for any
reason GRANTEE fails to obtain or keep my of such insurance in force, CITY
may, but shall not be required to, obtain such insurance, in which event
GRANTEE shall promptly reimburse CITY's premium cost therefor plus one and
one-half percent (1-%%) monthly interest thereon until paid.
Upon evidence of financial capacity reasonably satisfactory to CITY,
GRANTEE'S insurance coverage obligations hereunder may be established in
whole or in part by an established self-insurance program.
SECTION 11.
CITY'S OBLIGATIONS.
(a) CITY agrees to review the construction and installation of the network upgrades
subject to the same process it applies to the installation and construction of
GRANTEE's existing telecommunications infrastructure.
(b) City agrees to process all applicable permits for the installation, construction,
maintenance, repair, removal and other activities associated with the network
upgrade in a timely and prompt manner.
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SECTION 12.
[RESERVED]
SUBORDINATE USE OF RIGHTS OF WAY.
SECTION 13.
Any privilege claimed by GRANTEE in the public right-of-way shall be subordinate to
any prior lawful occupancy of the public right-of-way.
SECTION 14.
DISCLAIMER OF GUARANTEES.
(a) Nothing in this Agreement shall be deemed to be a representation or guarantee
by CITY that its interest or other right to control the use of the property that is the
subject herein is sufficient to permit its use for the purposes specified in this
Agreement. This Agreement shall be deemed to grant no more than the rights
that CITY may have the authority to grant.
(b) GRANTEE acknowledges that CITY has made no warranties or representations
regarding the fitness or suitability of any of CITY's property for the installation of
GRANTEE's facilities or for this project and that any performance of work or
costs incurred by GRANTEE or provision of services contemplated under this
Agreement by GRANTEE is at GRANTEE's sole risk. GRANTEE acknowledges
that CITY has made no warranties or representations that GRANTEE shall be
provided uninterrupted power service.
(c) GRANTEE acknowledges and agrees that GRANTEE bears all risk of loss or
damage of its facilities, equipment and material installed on CITY property or in
CITY's public right-of-way pursuant to this Agreement except to the extent said
loss or damage was caused by the acts or omissions of CITY, its employees or
agents.
SECTION 15.
NONEXCLUSIVE USE.
The rights to GRANTEE allowed hereunder shall be for the nonexclusive use of the
public right-of-way. By executing this Agreement, CITY does not agree to restrict the
number of right-of-way agreements to be executed that cover all or any part of CITY for
any person in the same business, a competing business, or a related business as
GRANTEE.
SECTION 16.
RIGHTS RESERVED TO THE CITY.
(a) This Agreement shall not contract away, modify, abridge, impair, or affect, in any
way, to any extent, the right of CITY to acquire any facility located in the public
right-of-way through the exercise of the right of eminent domain.
(b) There is reserved to CITY every right and power which is required to be reserved
or provided by any ordinance of CITY, and GRANTEE, by the use of the public
right-of-way, agrees to be bound thereby and to comply with any lawful action or
requirements of CITY in its exercise of such rights or power, heretofore or
hereafter enacted or established.
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(c) This Agreement shall not constitute a waiver or bar to the exercise of any
governmental right or power of CITY, including CITY's authority to make any
proper public use of the public right-of-way.
(d) CITY shall have the right to supervise all construction or installation work
performed subject to the provisions of this chapter and make such inspections as
it finds necessary to ensure compliance with the terms hereunder, or any other
local, state, or federal law, regulation, permit, or standard.
SECTION 17.
INDEPENDENT CONTRACTOR.
GRANTEE is acting as an independent contractor performing work under this
Agreement and is not an agent, servant or employee of CITY. Nothing in this
Agreement shall be interpreted or construed as creating or establishing the relationship
of employer and employee between CITY and GRANTEE. GRANTEE is responsible for
paying all required state and federal taxes.
SECTION 18.
NOTICES.
All notices hereunder must be in writing and, unless otherwise provided herein, shall be
deemed validly given on the date either personally delivered to the address indicated
below; or when received by certified mail, return receipt requested via U.S. Mail; or
when sent via facsimile to a party at the facsimile number set forth below or to such
other or further facsimile number provided in a notice sent under the terms of this
paragraph, on the date of transmission of that facsimile. Should CITY or GRANTEE
have a change of address, the other party shall immediately be notified in writing of
such change, provided, however, that each address for notice must include a street
address and not merely a post office box. All notices, demands or requests from
GRANTEE to CITY shall be given to CITY addressed as follows:
To CITY:
Tim Serlet, Director of Public Works/City Engineer
City of Tustin
300 Centennial Way
Tustin, CA 92780-3767
Fax No. (714) 734-8991
To GRANTEE:
AT&T California
Area Manager C&E Support
Alln: Virginia Becker
1265 N. Van Buren Street
Anaheim, CA 92807
Fax No. (714) 630-6617
ASSIGNMENT.
SECTION 19.
GRANTEE may not assign or transfer any interest in this Agreement, without the prior
wrillen consent of CITY, which consent shall not be unreasonably withheld; provided
however that such consent shall not be required for GRANTEE to assign or transfer an
interest in this Agreement to an affiliate of GRANTEE that is controlled by, controlling, or
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under common control with GRANTEE. Notwithstanding the above, the lease or grant
of indefeasible rights of use in existing fiber optic lines, or other network elements shall
not require the prior written consent of the CITY as long as GRANTEE remains solely
responsible for maintaining, removing, and relocating the facilities pursuant to this
Agreement.
SECTION 20.
TERMINATION.
(a) If GRANTEE defaults in the performance of this Agreement, materially breaches
any of its provisions, or if the California Public Utilities Commission finds
GRANTEE's telecommunications services or facilities not to be sanctioned by
any federal or state regulatory requirement, CITY reserves the right to terminate
this Agreement subject to reasonable prior notice and an opportunity to cure any
breach or default.
(b) Notwithstanding the foregoing, either party may terminate this Agreement at any
time by providing one hundred eighty (180) days written notice of said
termination to the other party. CITY agrees that it shall terminate this Agreement
only in the event it determines GRANTEE's facilities and GRANTEE's use
thereof create a public nuisance or otherwise cause jeopardy to the public health,
welfare or safety.
(c) Upon expiration or termination,GRANTEE shall discontinue providing video
services and shall remove any facility used solely for delivery of video services
within a mutually agreeable timeframe. The provisions of this subsection shall
survive the expiration or termination of this Agreement.
SECTION 21.
[RESERVED]
ENTIRE AGREEMENT; AMENDMENTS.
SECTION 22.
This Agreement, including the exhibits referenced herein and incorporated herein,
constitutes the entire Agreement between the parties relating to the rights of the parties
hereunder. No modification of this Agreement shall be effective unless and until such
modification is evidenced in writing signed by all parties.
SECTION 23.
TIME OF ESSENCE.
Time shall be of the essence in this Agreement.
SECTION 24.
NON-WAIVER.
A waiver by CITY of any breach of any term covenant, or condition contained in this
Agreement shall not be deemed to be a waiver of any subsequent breach of the same
or any other term, covenant, or condition contained in this Agreement whether of the
same or different character.
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SECTION 25.
GOVERNING LAW/EXCLUSIVE VENUE.
This Agreement shall be governed and construed in accordance with the laws of the
State of California and exclusive venue shall be in the County of Orange, whether
litigation ensues in State or Federal court.
SECTION 26.
SEVERABILITY.
If any part of this Agreement is held invalid, the remaining terms and conditions shall not
be affected unless their enforcement under these circumstances would be
unreasonable, inequitable, or otherwise frustrate the purposes of this Agreement.
SECTION 27.
PROPERTY TAXES.
In no event shall CITY be liable for any taxes owed as a result of this Agreement or
California Revenue and Taxation Code section 107.6.
SECTION 28.
DEFAULT.
In the event of default by either party to this Agreement, CITY, but not GRANTEE, shall
have available all remedies at law or in equity not otherwise provided for herein,
including by way of illustration but not limitation, suits for injunctive or declaratory relief,
specific performance, relief in the nature of mandamus, or action for damages.
GRANTEE shall possess all remedies with the exception of an action for damages,
which will not be available against CITY or any related person or entity except and to
the extent of CITY's sole negligence, willful misconduct or criminal acts. All remedies,
including the remedies specified in this Agreement, shall be cumulative and not
exclusive of one another, and the exercise of anyone or more of said remedies shall
not constitute a waiver or election with respect to other available remedy.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day first above written.
CITY
City of Tustin
GRANTEE
AT&T California
William A. Huston
City Manager
By:
Its:
APPROVED AS TO FORM:
Douglas C. Holland
City Attorney
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