HomeMy WebLinkAboutReso - CC - 022-2001RESOLUTION NO. 22-2001
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME
APPROVING CONSTRUCTION AGREEMENT WITH
TCI AMERICAN CABLE HOLDINGS H, L.P. [AT&T CABLE] FOR
FIBER OPTIC SYSTEM BETWEEN CITY BUILDINGS
RESOLVED, by the City Council of the City of Burlingame:
WHEREAS, TCI American Cable Holdings U, L.P. is willing to install optical fiber cable to
connect City of Burlingame and public school buildings pursuant to its cable televisions franchise;
and
WHEREAS, this cable till allow the City to replace leased telephone lines, increase the speed
of data transmission, and increase competition for City telecommunications needs; and
WHEREAS, the proposed agreement is fair and reasonable,
NOW; THEREFORE, IT IS RESOLVED AND ORDERED:
1. The City Manager is authorized and directed to execute the Construction Agreement for
Fiber Optic Systems with TCI American Cable Holdings H, L.P. as generally contained in
Attachment A hereto.
2. The Clerk is directed to attest to the signature of the Manager.
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I, ANN T. MUSSO, City Clerk ofthe City ofBurlingame, do hereby certify that theforegoing
resolution was introduced at a regular meeting of the City Council held on the 5th day of March
2001, and was adopted thereafter by the following vote:
AYES: COUNCILMEMBERS: COFFEY, GALLIGAN, JANNEY, OWAHONY, SPINELLI
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
1 i
DEPUTY CITY CLERK
CONSTRUCTION AGREEMENT FOR PROVISION, REPAIR AND
MAINTENANCE OF OPTICAL FIBER SYSTEM
This Construction Agreement (hereinafter "the Agreement") is made and
entered into this I day of 1clx , 2001, by and between the City of Burlingame,
California, a municipal corporation of the State of California, and TCI American
Cable Holding, II, L.P.
FINDINGS
The City of Burlingame (hereinafter "the City") entered into a Cable
System Franchise Agreement, dated October 23, 1998, with TCI American
Cable Holdings II, L.P., a California limited partnership, which
subsequently was acquired by AT&T Corp ("TCI").
2. The Cable System Franchise Agreement required Grantee to provide
interactive communications capability to selected City Buildings. The City
and TCI have agreed that provision, repair and maintenance by TCI of
"dark fiber" (optical fiber without activation electronics) to the City buildings
designated herein, under the terms and conditions of this Agreement, will
satisfy TCI's obligations under Exhibit C, Paragraph 4 of the Cable System
Franchise Agreement.
AGREEMENT
Section A. Scope of Work
TCI shall install a network of "dark fiber" between the following nine (9)
City locations:
Building
City Hall
Library
Library — Easton Branch
Recreation Center
Police Station
Public Works Yard
Fire Station 36
Fire Station 34
Fire Station 35
Address
501 Primrose Rd.
450 Primrose Rd.
1800 Easton Dr.
850 Burlingame Ave.
1111 Trousdale Dr.
1361 N. Carolan Ave.
1399 Rollins Rd.
799 California Dr.
2832 Hillsdale Dr.
2. The network shall be configured as indicated in Figure 1 of Exhibit A
herein. Six (6) single -mode optical fibers shall be installed between each
pair of buildings.
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3. The optical fibers shall terminate at a Point of Demarcation outside each
building to be specified by the City. The City also shall specify the type of
connector(s) that shall be utilized to terminate the fibers at each location.
4. The City shall be responsible for the acquisition, installation, operation and
maintenance of all electronic and electro -optical equipment necessary to
utilize the optical fibers in a functional telecommunications network.
5. TCI shall be responsible for maintaining the integrity of the optical fiber
paths on TCI's side of the Point of Demarcation for the duration of the
Cable System Franchise Agreement with the City. In the event of any
break, failure or discontinuity in any fiber path, TCI shall repair the break,
failure or discontinuity promptly at no charge to the City.
6. TCI, in its construction, shall meet all applicable City construction codes,
including all relevant permit and inspection requirements.
If space in any City -owned conduit is available along the path of the
optical fibers, and if TCI desires to utilize such space, the City and TCI
shall negotiate the terms and conditions of such use.
Section B. Completion Schedule
TCI shall complete the dark fiber installation no later than six (6) months
after the execution of this Agreement. TCI shall submit to the City a
written status report on the progress of the installation at two (2) months
and four (4) months after the date of execution of this Agreement.
2. Within thirty (30) days after the date of execution of this Agreement, TCI
shall post a construction performance bond in the face amount of One
Hundred Thousand Dollars ($100,000), as surety for timely completion of
construction. The format of the bond shall be subject to approval of the
City Attorney. The bond shall be subject to forfeit if the completion date of
Section B(1) is not met, and TCI is not excused by reason of the Force
Majeure provisions of Section C(1) below. The bond shall be released
upon the City's written acceptance of verification by TCI that the dark fiber
network has been completed in accordance with the requirements of this
Agreement.
Section C. Force Majeure
In the event TCI's performance of any of the obligations required by this
Agreement is prevented by a cause or event not within TCI's control, such
inability to perform shall be deemed excused and no penalties or
sanctions shall be imposed as a result thereof. Causes or events not
within the control of TCI shall included without limitation, acts of God, war,
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sabotage, riots or civil disturbances, restraints imposed by order of a
governmental agency or court, explosions, acts of public enemies, and
natural disasters such as floods, earthquakes, landslides, and fires, but
shall not include the financial inability of TCI to perform or failure of TCI to
obtain any necessary permits or licenses from governmental agencies or
the right to use the facilities of any public utility where such failure is due
solely to the acts or omissions of TCI, or the failure of TCI to secure
supplies, services or equipment necessary for the installation of the optical
fiber network where TCI has failed to exercise reasonable diligence to
secure such supplies, services or equipment.
Section D. Cost
The City shall pay to TCI, as indicated in Figure 2 of Exhibit A herein, the
sum of One Hundred Forty-nine Thousand Three Hundred Sixty Two
Dollars ($149,362) for construction and satisfactory completion of the
optical fiber network.
2. TCI may invoice the City the sum of Fifty Thousand Dollars ($50,000)
concurrent with its submission of the two (2) month status report specified
in B(1) above, and an additional Fifty Thousand Dollars ($50,000)
concurrent with its submission of the four (4) month status report specified
in B(1) above. The final payment of Forty Nine Thousand Three Hundred
Sixty Two Dollars ($49,362) shall be invoiced upon completion of
installation of the network and written acceptance by the City. If TCI
completes construction and installation prior to six (6) months after the
execution of this Agreement, TCI may invoice the City for any outstanding
balance at that time.
Section E. Waiver
The parties agree that a waiver by one party of any breach or violation of
any term or condition of this Agreement by the other party shall not be
deemed to be a waiver of any other term or condition contained herein, or
a waiver of any subsequent breach or violation of the same or any other
term or condition. The acceptance by the City of the performance of any
work or services by TCI shall not be deemed to be a waiver of any term or
condition of this Agreement.
Section F. Indemnity
Indemnity. In addition to indemnification required pursuant to other
Agreement Documents, TCI shall to the fullest extent permitted by law
protect, defend, indemnify and hold harmless City from and against
liability, claims, damages, losses, and expenses, including attorneys' fees,
arising out of or resulting from performance of the work required under this
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agreement, provided that such liability, claims, damages, loss or expense
is attributable to bodily injury, sickness, disease or death, or to injury or to
destruction of tangible property (other than that required to complete the
work required under this agreement) including loss of use resulting
therefrom, but only to the extent caused in whole or part by negligent acts
or omissions of TCI, a subcontractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable,
regardless of whether or not such liability, claim, damage, loss or expense
is caused in part by a party indemnified hereunder.
2. Limitations on Warranties and Liability. In no event will either party be
liable to the other party for any indirect, special, incidental, punitive or
consequential damages, whether or not foreseeable, including but not
limited to, loss of revenue, loss of customers or clients, loss of goodwill, or
loss of profits arising out of or in relation to this agreement or the
performance or nonperformance of any obligation herein, whether arising
out of contract or tort; provided, however, that the foregoing shall not limit
TCI's obligation to indemnify the City pursuant to the requirements of
section F(1). TCI disclaims all warranties, whether express, implied or
statutory, including without limitation, any implied warranties of
merchantability or fitness for a particular purpose and non -infringement of
third party rights. Except as specifically provided in this agreement, and
subject to the limitations set forth in this section, TCI specifically disclaims
any responsibility for any damages suffered by City or any third party,
except for those caused by TCI's gross negligence, or reckless action, or
willful, orwonton misconduct.
Section G. Governing Law
1. California Law Applies. Except as to matters that are governed solely by
federal law, this Agreement will be governed by and construed in
accordance with the laws of the State of California, and this Agreement is
deemed to have been executed in the City of Burlingame, California.
Section H. Commercial Use Restriction
1. The dark fiber network is a private communications network governed by
the TCI Franchise and the Cable Act. The dark fiber network may be used
by the City to provide any technically and legally compatible, non-
commercial service. The City agrees to require all users of the dark fiber
network to stipulate and agree to this limitation. "Technically compatible"
includes, but is not limited to, the understanding that the dark fiber network
will not be used in any way that will intentionally or unreasonably interfere
with the signal quality and the normal operation of TCI's Subscriber
Network. "Legally compatible' includes, but is not limited to, the
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understanding that the dark fiber network may not be used for
Telecommunications Services unless by separate agreement between the
TCI and the user, and that the dark fiber network users will not resell
access to the dark fiber network; provided, however, that the dark fiber
network users shall have the right to provide for the internal switching,
routing and/or cross connection to Telecommunications carriers of their
choice, for their normal voice and data communications operations, unless
expressly prohibited by State or federal law. In addition, TCI and the City
shall at all times provide such management of the dark fiber network as
applicable to ensure the necessary protection of proprietary dark fiber
network signals.
Executed this day of , 2001.
Appr ved as to Form: City of Burlingame
4 J By. 14-t
City Attorney City Manager
Date: 3 q ool Date 3 7
Attest:
Deputy
City Clerk TCI
0
Date
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EXHIBIT A
FIGURE 1. FIBER NETWORK CONFIGURATION
FIGURE 2. COST BREAKDOWN
FIGURE 1
OPTICAL FIBER NETWORK CONFIGURATION
Main Police Station
I -Net List of City
9. Fire Statlor
7. Public War
3. Library EM
1 OFire Sister
11 Fire Statior
6. Parks Yard
4. Recreation
Strantls�----��
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City of Burlingame Fiber Optic Network Layout proposed by AT&T
City Hall
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