HomeMy WebLinkAbout027222 ORD - 04/17/2007ORDINANCE
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
A TEN YEAR RECIPROCAL FIBER LICENSE AGREEMENT WITH
GRANDE COMMUNICATIONS NETWORKS, INC., ("GRANDE") FOR THE
CITY TO RECEIVE USE OF APPROXIMATELY 82.9 MILES OF GRANDE
FIBER, AND GRANDE TO RECEIVE USE OF APPROXIMATELY 18.9
MILES OF CITY FIBER; PROVIDING FOR REFUND OF $100,000
SECURITY DEPOSIT ESTABLISHED IN THE GRANDE CABLE
FRANCHISE
BE IT ORDAINED BY THE CITY COUNCIL OF CORPUS CHRISTI, TEXAS:
SECTION 1. That the City Manager, or his designee, is authorized to execute a
ten year Reciprocal Fiber License Agreement with Grande Communications Networks,
Inc ("Grande") A copy of the Agreement in substantial form is attached. The
Agreement contains a provision for refund of the $100,000 security deposit established
in the Grande Cable franchise.
027222.
I DEy
Reciprocal Fiber License Agreement
THIS Reciprocal Fiber License Agreement (this "Agreement" or "License") is made and
entered into as of 2007 (the "Effective Date") by and between City of Corpus
Christi, `'exas ("Cit. ") and Grande Communications Networks. Inc., a Delaware corporation
( irancl
RECITALS
Cit) and Grande each owns a fiber optic communication system in the City of
('orpus ( hristi, referred to ,is the Ciiv System Route and Grande System Route, respectively.
I3 Cit) desires to he granted the right to use, and Grande is willing to grant to City
the right to use certain dark fibers :-tnd associated property in the Grande System Route, on the
terms and conditions set forth below,
Grande desires to he granted the right to use, and City is willing to grant to
Grande the right to use cer! ain dark fibers and associated property in the City System Route, on
the terms and conditions se forth below
1) Each defined term shall have the meaning set forth in this Agreement where such
term is first used. or. if no meaning is so set forth, the meaning ascribed to such term in the
t: ilossary or Terms which is attached hereto and incorporated herein by this reference.
.AeLordingly_ in consideration of the mutual promises set forth below, and other good and
auable consideration. the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follow's�
ARTICLE 1
Licensed Fiber
Grande hereby grant; to City, and City hereby accepts from Grande:
(a) the exclusive right and license (the "City Fiber License") to use certain
communications dark fibers (the `Grande Fibers") which will be specifically identified
by Grande in the Grande System Route as depicted on Exhibit A attached hereto and
incorporated herein and
(b) the none'(clusiy e right and license to use the tangible and intangible property
needed for the use of the Grande Fibers (collectively. the "Grande Associated Property"),
including but not lir'lited to•
R DE
the associated conduit; and
Grande's rights in all Grande Underlying Rights.
\1ML!\I( \ f !Or.c\ ?TW( )Rh ; 1
CONFIDENTIAL AND PROPRIETARY
1 ? City hereby grants to Grande, and Grande hereby accepts from City:
(a) the exclusive right and license (the "Grande Fiber License") to use certain
communications dark fibers (the "City Fibers") which will be specifically identified by
City in the City System Route as depicted on the attached Exhibit Al attached hereto and
incorporated here; n; and
(b) the nonexclus ve right and license to use the tangible and intangible City
property needed for the use of the City Fibers (collectively the "City Associated
Property") including but riot limited to:
(1 a the associated conduit; and
( City's rights in all City Underlying Rights.
1 3 Neither party has the right to own, control, maintain, modify or revise the Fibers
or Associated Property of the other party
1 4 Neither party has the right of physical access to, the right to encumber in any
manner, or other use of the System Route of the other party, except as expressly set forth herein.
1 5 Each party shall have full and complete control and responsibility for determining
any network and service configuration or designs, routing configurations, rearrangement or
consolidation of channe s or circuits and all related functions with regard to the use of that
party's fiber.
1 6 Each party ackno\ledges and agrees that the other party is not supplying nor is
obligated to supply an optronics or electronics or optical or electrical equipment or other
facilities. including without limitation, generators, batteries, air conditioners, fire protection and
monitoring and testing equipment. all of which are the sole responsibility of the using party, nor
+s any party responsible for performing any work other than as specified in this Agreement.
ARTICLE 2.
ADDITIONAL CONSIDERATION FOR GRANTS
2 1 City shall pay directly or reimburse Grande for the costs and expenses described
Article 7.
2 2 L pon the earlier et (a) 90 days after the execution of this License; or (b) City's
receipt of notice from the Dir. of MIS that the Grande Fibers have been delivered to City, the
City shall immediately refund to Grande the $100,000 security deposit previously provided by
Grande to City pursuant to the terms and conditions of that certain Franchise Agreement, dated
March 1 ), 2000 and entered into by and between the parties hereto.
ARTICLE 3.
CONSTRUCTION OF THE GRANDE FIBER SYSTEM
2
ANI E =:'OMMUNI(1 T10 , NETWORKS, ,( CONFIDENTIAL AND PROPRIETARY
1 Grande shall construct he Grande System Route as described on the attached
Exhibit .\. The Grande System Route and the Grande Fibers therein shall meet or exceed the
specifications set forth in Exhibit H.
3 2 Except as may be provided herein. Grande shall, at Grande's sole cost and
expense. procure all materials to be incorporated in and to become a permanent part of the
Grande System Route.
ARTICLE 3A
CONSTRUCTION OF THE CITY FIBER SYSTEM
3A.1 City has constructed the City System Route as described on the attached Exhibit
NI The City System Route and the City Fibers therein shall meet or exceed the specifications
set forth in Exhibit B.
,ARTICLE 4.
TESTING
4 1 Grande shall test all Grande Fibers in accordance with the procedures specified in
Exhibit B ("Fiber Testing"). Fiber Testing shall proceed span by span along each Segment as
cable splicing progresses, so that test results may be reviewed in a timely manner. Grande shall
Dromptly provide City with a cope of the test results,
4,2 Grande dA ill provide City reasonable advance notice of the date and time of each
Fiber Testing so the Cite shall have the opportunity to have a representative present to observe
the Fiber Testing
ARTICLE 5.
TERM
l The grants of the City Fiber License and the Grande Fiber License shall each
become effective on the Effective Date and shall each extend for a period of ten (10) years
thereafter. The period o the fiber licenses granted herein is defined as the "Term."
(a Al the expiration or other termination of this Agreement, the fiber licenses
granted herein shall each immediately terminate, and all rights of either party to use the other
party .\ssociated Property. or any part thereof, shall cease.
's.2 If at any time City determines that, with respect to any Segment, the Grande
Fibers have reached the end of their useful life (as determined by City in its sole discretion), or
City otherwise desires not to retain this Agreement, City shall have the right to abandon the use
of the Grande Fibers by notice to Grande. In the case of abandonment, this Agreement shall
terminate as to such Segment and City shall not be entitled to a refund of any of the
consideration paid.
�RANI7F COMMLNI( ATI0S NETWORKS 1 CONFIDENTIAL AND PROPRIETARY
5 3 It is understood and agreed that Grande must and does maintain legal title to the
entire Grande System Route, subject to the Grande Fiber License granted hereunder. The parties
agree to file their respective income tax returns, property tax returns, and other returns and
reports for their respecti\ e Impositions on such basis and, except as otherwise required by law,
not to take any positions 'nconsistent therewith.
5 4 The term of this .\greement shall extend for two additional periods of five (5)
years each, by agreement of the Parties, not later than twelve (12) months preceding the
expiration of the Term (or the extended Term).
ARTICLE 6.
NETWORK ACCESS
6 I (a) Grande shall provide City with access to the Grande Fibers by cable stub
taken by Grande from the Grande System Route in the public right of way adjacent to City
facilities identified on Exhibit A
(al) City shall provide Grande with access to the City Fibers by cable stub taken by
City from the City System Route in the public right of way adjacent to Grande facilities
identified on Exhibit Al
(h) If either party desires additional Connecting Points on the System Route
of the other party, the parties will negotiate in good faith the terms and conditions for such
additional Connecting Points. :All. Cormecting Points shall be placed at splice points.
(c) Ai connections to the Grande System Route shall be performed by
Errande, in accordance with Grande's applicable specifications and operating procedures. The
Cost of such connections will be borne by Grande. It is the responsibility of City to obtain all
governmental and other approvals and consents necessary for the delivery of the cable stub.
(c'') A connections to the City System Route shall be performed by City. The
ost of such connections will be borne by City.
(di In order to schedule a Connection, each party shall request and coordinate
such work with the other party not less than thirty (30) days in advance of the date the
connection is requested `o be completed. Neither Grande nor City shall have any limitations on
the types of electronics or technologies employed to utilize its fibers, subject to applicable safety
procedures and so long as such electronics or technologies do not interfere with the use of or
present a risk of damage to any portion of the other party's system.
ARTICLE 7.
MAINTENANCE AND REPAIR OF THE FIBER SYSTEM
1 Each Party shall be responsible for maintenance and repair of its own Fiber
System. The parties agree to maintain their respective System Route in accordance with the
maintenance requirements and procedures set forth in Exhibit D hereto.
4
KANDE COMMLNICATIONS NETW(�KKS. (ti== CONFIDENTIAL AND PROPRIETARY
7 2 If Grande determines that the fiber optic cable is technically or functionally
obsolete and should be replaced on the Grande System Route or any Segment thereof, then
(rrande may, on not less than one hundred twenty (120) days' written notice to City, substitute
for the Grande Fibers on the Grande System Route an equal number of alternative fibers along
the same or an alternate, e route: provided that in any such event, such substitution (a) shall be
without interruption of service .ind use by City: and (b) shall not adversely affect the use,
operation: or performance of City s network or business or change any Connecting Points. In the
t -v ent of a fiber substitution, Grande w i ll use all commercially reasonable efforts to reconnect to
the Grande System Route without •nterruption or service along the Grande System Route.
2A If City determines that the tiber optic cable is technically or functionally obsolete
and should be replaced on the City System Route or any Segment thereof, then City may, on not
less than one hundred twenty (120) da\ s' written notice to Grande, substitute for the City Fibers
on the Cly System Route an equal number of alternative fibers along the same or an alternative
route; provided that in any such event, such substitution (a) shall be without interruption of
service and use by Grande; and (h) shall not adversely affect the use, operation or performance
of Grande's network or business or Change any Connecting Points. In the event of a fiber
substitution, City will use all commercially reasonable efforts to reconnect to the City System
Route without interruption of sere ice along the City System Route.
7 3 In the e' ent of .r fiber substitution under Section 7.2, all costs of such
substitution, including, ' ithout limitation, all disconnect and reconnect costs, fees and expenses,
shall be shared by the parties in the following order and amounts (the "Allocable Shares"):
(a) First, if the affected portion of the Grande System Route includes any
eondui. other than the . onduit housing the Grande Fibers, the total Costs shall be allocated
equall` among all of the affectedconduits; and
(b) Second. the Costs related to the conduit carrying the Grande Fibers plus
the Costs specifically related to the fibers within such conduit shall be allocated between City
and Grande and other users based on the ratio to which the number of Grande Fibers bears to the
Yotal number of fibers in such conduit
7.3A In the ex ent of a fiber substitution under Section 7.2A, all costs of such
substitution, including, without limitation, all disconnect and reconnect costs, fees and expenses,
shall be shared b the parties in the following order and amounts (the "Allocable Shares"):
(a) First, if the affected portion of the City System Route includes any conduit
other than the conduit housing the City Fibers, the total Costs shall be allocated equally among
all of the affected conduits; and
(b) Second, the Costs related to the conduit carrying the City Fibers plus the
Costs specifically related to the fibers within such conduit shall be allocated between City and
C�R.ANDE .'OMNI JNIC \TIO\S NETWORKS, >NC CONFIDENTIAL AND PROPRIETARY
Grande and other users based on the ratio to which the number of City Fibers bears to the total
number of fibers in such .ionduit
ARTICLE 8.
GRANDE PERMITS; UNDERLYING RIGHTS; RELOCATION
8 1 Grande has obtained or will obtain certain rights of way for construction and
operation of the Grande System Route (the "Grande Underlying Rights"). This Agreement is
subject to the terms of the Grande Underlying Rights, and subject to the terms under which the
right of way is owned or held by the grantor of the Grande Underlying Rights, including, but not
limited to, covenants. conditions, restrictions, easements, reversionary interests, bonds,
mortgages and indentures, and other matters, whether or not of record, and to the rights of
tenants and licensees in possession. The rights and license granted to City hereunder are further
subject and subordinate o the prior right of the grantor of the Grande Underlying Rights to use
the right of way tbr other business activities, including railroad operations, telecommunications
tses, pipeline operations or any other purposes, and to the prior right of Grande to use its rights
granted under the Grande Underlv ing Rights. The rights and license granted herein are expressly
made subject to each and every limitation, restriction or reservation affecting the Underlying
Rights Nothing herein shall be construed as to be a representation, warranty or covenant of
Trande' s right, title or interests w ith respect to the right of way or the Grande Underlying Rights.
2 Or City't written request, Grande shall make available for inspection by City, at
;irande's offices, copies of all information, documents, agreements, reports, permits, drawings
and specifications that are material to the grant of the rights hereunder to City, including, without
limitation, the Grande 1 nderlving, Rights, to the extent that their terms or other legal restrictions
permit disclosure Grande may redact confidential or proprietary business terms.
* .3 11 during the Term, Grande undertakes a relocation of any part of the Grande
System Route, including any of the facilities used or required in providing the rights hereunder,
Grande shall proceed with such relocation, including, but not limited to, the right, in good faith,
to reasonably determine the extent of the timing of, and methods to be used for such relocation;
provided that (a) if the relocation is at Grande's discretion, Grande shall maintain the same
endpoints of the Grande System Route; and (b) the relocation shall be conducted in accordance
with the procedures set forth in Exhibit D
8.4 Upon the expiration or other termination of an Grande Underlying Right that is
necessary in order to grant, continue of maintain any rights granted hereunder in accordance with
the terms and conditions hereof or any relocation of the Grande System Route, Grande shall use
all reasonable efforts tc obtain an alternate right of way. The parties shall share the costs of
obtaining an alternate ight of way and the costs of relocation according to their Allocable
Shares.
ts'.5 Grande shall deliver to City updated As-Builts with respect to the relocated
segment not later than ninety (9C;1 days following the completion of such relocation.
KANDE COMM
6
ICATIONS NETW RKS. INC CONFIDENTIAL AND PROPRIETARY
ARTICLE 8A.
CITY PERMITS; UNDERLYING RIGHTS; RELOCATION
S N.1 City has obtained or will obtain certain rights of way for construction and
operatior:, of the City System Route (the '`City Underlying Rights"). This Agreement is subject
to he terms of the City t underlying Rights, and subject to the terms under which the right of way
)s owned or held by the grantor of the City Underlying Rights, including, but not limited to,
c o enants, conditions, restrictioFls, easements. reversionary interests, bonds, mortgages and
indentures, and other matters, whether or not of record, and to the rights of tenants and licensees
10 possession. The rights and license granted to Grande hereunder are further subject and
subordinate to the prior right of the grantor of the City Underlying Rights to use the right of way
other business actin 4ties, including railroad operations, telecommunications uses, pipeline
operations or anv other purposes. and to the prior right of City to use its rights granted under the
(lily Underlying Rights The rights and license granted herein are expressly made subject to
each and every limitation, restriction or reservation affecting the City Underlying Rights.
\othing herein shall be onstruec as to he a representation, warranty or covenant of City's right,
title or interests with respect to the right of way or the City Underlying Rights.
8 A.2 On Grande's written request, City shall make available for inspection by Grande,
at,ti ity s offices. copies of all information, documents, agreements, reports, permits, drawings
and specifications that are material to the grant of the rights hereunder to Grande, including,
without :imitation, the City Underlying Rights, to the extent that their terms or other legal
restrictions permit disclosure Ci -v may redact confidential or proprietary business terms.
8A.3 If during the Term. Cit,,, undertakes a relocation of any part of the City System
Route. including any of the facilities used or required in providing the rights hereunder, City
shall proceed with such relocation, including, but not limited to, the right, in good faith, to
reasonably determine the extent of the timing of, and methods to be used for such relocation;
provided that (a) if the relocation is at City's discretion, City shall maintain the same endpoints
:if the City System Route; and b) the relocation shall be conducted in accordance with the
;procedures set forth in Exhibit D
SA.4 Upon the expiration or other termination of an City Underlying Right that is
necessary in order to grant, continue or maintain any rights granted hereunder in accordance with
the terms and conditions hereof or any relocation of the City System Route, City shall use all
reasonable efforts to obtain an alternate right of way. The parties shall share the costs of
obtaining an alternate right of A -ay and the costs of relocation according to their Allocable
Shares
8 A.5 City shall deliver to Grande updated As-Builts with respect to the relocated
segment not later than ninety (90 ► days following the completion of such relocation.
ARTICLE 9.
USE OF FIBER SYSTEM
GRANDE COMMUNICATIONS NETWORKS. i"4(' CONFIDENTIAL AND PROPRIETARY
Intentionally Deleted.
9 ? Each parts represents. .warrants and covenants that it will use the other party's
Fibers and Associated Property n compliance with and subject to all applicable government
codes, ordinances, laws, rules and regulations.
.3 Subject to the limitations set forth in this Agreement, each party may use the
Fibers and the Associated Property of the other party for any lawful purpose. City agrees and
acknowledges that it has no righ. to use any of the fibers that are part of the Grande System,
other than the Grande Fibers. Grande agrees and acknowledges that it has no right to use any of
the fibers that are part of the City System, other than the City Fibers. Each party shall keep any
and all of the other parte" System. free from any liens, rights or claims of any third party.
9 4 Grande agrees and acknowledges that it has no right to use the Grande Fibers
during the Term hereof. From and after the Effective Date, Grande shall keep the City's rights in
the Grande Fibers and the Grande Associated Property granted hereunder, other than any
Associated Property as te. which (.irande shall have provided to City a nondisturbance agreement,
tree from any liens, rights or claims of any third party attributable to Grande. Grande shall
obtain from any entity in favor -' f which Grande in its discretion shall have granted after the
Effective Date a security interes or lien on all or part of the Grande System Route a written
nondisturbance agreement in which such lien holder acknowledges City's rights and interests in
and to the Grande Fibers, the Grande Associated Property and the rights granted hereunder, and
agrees that City shall not be diminished, disturbed, impaired or interfered with in any adverse
respect by such lien holder. City agrees and acknowledges that it has no right to use the City
f=ibers during the Term hereof 1 rorn and after the Effective Date, City shall keep the Grande's
fights in the Cite Fibers and the ('ity Associated Property granted hereunder, other than any City
\ssoci ated Property as a= which t ity shall have provided to Grande a nondisturbance agreement,
' ee from: any liens, rights or claims of any third party attributable to City. City shall obtain from
an entity in favor of which Cite- in its discretion shall have granted after the Effective Date a
Security interest or lien on all or part of the City System Route a written nondisturbance
agreement in which such lien holder acknowledges Grande's rights and interests in and to the
City Fibers, the City Associated Property and the rights granted hereunder, and agrees that
tIirande shall not be diminished. disturbed, impaired or interfered with in any adverse respect by
such lien holder
9 5 Each party shall promptly notify each other of any matters pertaining to, or the
occurrence (or impending occun-ence) of, any event which would be reasonably likely to give
rise to any damage or impending damage to or loss of the other party's System that are known to
such reporting party.
6 Neither party shall use its System in a way that interferes in any way with or
adversely affects the use of the fibers or cable of any other person using the other party's
System. The parties acknowledge that each party's System may include other participants.
8
(Ii ANDS COMMUNICATIONS NETWCR.KS. SNC CONFIDENTIAL AND PROPRIETARY
The parties agree o cooperate with and support the other in complying with any
requirements applicable to their respective rights and obligations hereunder.
ARTICLE 10
INDEMNIFICATION AND LIMITATION OF LIABILITY
1 ).l Subject tc the protiisions of Section 11.5, Grande hereby releases and agrees to
ndemnity, defend, protect and hold harmless City, its Affiliates, and its and their employees,
officers, directors. agents, contractors. and shareholders ("Indemnified Persons"), from and
against any third party claims, suits, proceedings and actions ("Claims") for:
(a) Any injure. death, loss or damage to any person, tangible property or
facilities of any person or entity (including reasonable attorney fees and costs at trial and appeal)
to the extent arising out of or resulting from the negligence or willful misconduct of Grande, its
officers, employees, seri ants, agents or contractors in connection with its performance under this
Agreement; and
(h) Any liabihties or damages (including reasonable attorneys fees and costs
at trial and appeal) arising out of any violation by Grande of regulations, rules, statutes or court
orders of any local, state or federal governmental agency, court or body in connection with its
performance under this .Agreement.
10.2 Nothing contained herein shall operate as a limitation on the right of either User
or Grande to bring an action for damages against any third party, including indirect, special, or
consequential damages, based on any acts or omissions of such third party as such acts or
omissions may affect the construction operation or use of the User Fibers or the System Route
or any portion thereof; provided, however, the above limitation of liability shall apply to indirect
liability including Claims against third parties who, directly or through one or more other parties,
have a right of indemnification, impleader, cross-claim, contribution or other right of recovery
against a Party to this Agreement. Each of User and Grande shall assign such rights or claims,
execute such documents and do Ir hate\ er else may be reasonably necessary to enable the other to
pursue any such action against such third party.
0.3 Notwithstanding any provision of this Agreement to the contrary, NEITHER
PARTY SHALL BF LIABLE TO THE OTHER FOR SPECIAL, PUNITIVE,
EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR
DAMAGES AS A RESULT OF THE PERFORMANCE OR NONPERFORMANCE OF
ITS OBLIGATIONS UNDER THIS AGREEMENT, OR ITS ACTS OR OMISSIONS
RELATED TO THIS AGREEMENT, WHETHER OR NOT ARISING FROM SOLE,
JOINT OR CONCURRENT NEGLIGENCE: OR STRICT LIABILITY OR OTHERWISE.
THE ABOVE LIMITATION OF LIABILITY SHALL APPLY TO INDIRECT
LIABILITY INVOLVING SUITS BROUGHT AGAINST THIRD PARTIES WHO,
DIRECTLY OR THROUGH ONE OR MORE OTHER PARTIES, HAVE A RIGHT OF
INDEMNIFICATION, IMPLEADER, CROSS-CLAIM, CONTRIBUTION, OR OTHER
RIGHT OF RECOVERY AGAINST A PARTY TO THIS AGREEMENT (e.g., if an
9
_;:;tAN1)I COMML MCA IONS NETW( )RKS INC CONFIDENTIAL AND PROPRIETARY
affiliate of Party A sues Party B's contractor under circumstances in which the contractor
has a right of indemnity against Party B).
ARTICLE 11.
INSURANCE
At all times during the Term each party shall procure and maintain in force, at its
own expense:
tai not less than $2,000,000 combined single limit liability insurance, on an
occurrence basis, for personal injury and property damage, including, without limitation, injury
or damage arising from the operation of vehicles or equipment and liability for completed
operations:
(bp workers" compensation insurance in amounts required by applicable law
and employers' liability insurance with a limit of at least $1,000,000 per occurrence;
(c ) automobile liability insurance covering death or injury to any person or
persons, or damage to property arising from the operation of vehicles or equipment, with limits
of not less than $2,000,000 per occurrence; and
(d 1 ani: other insurance coverages specifically required of such party pursuant
to (rrande's right-of-way agreements with railroads or other third parties.
1 .2 Both parties expressly acknowledge that a party shall be deemed to be in
compliance with the provisions o':' this Article if it maintains a self-insurance program providing
for a retention of up to $ 2,000,00.. If either party provides any of the foregoing coverages on a
claims -made basis, such policy 01 policies shall be for at least a three-year extended reporting or
discover period. Unless otherwise agreed, User's and Grande's insurance policies shall be
obtained and maintained with companies rated "A" or better by Best's Key Rating Guide and
each party shall provide the other with an insurance certificate confirming compliance with this
requirement for each policy providing such required coverage.
13 If either party fails to obtain the required insurance or fails to obtain the required
certificates from any contractor and a claim is made or suffered, such party shall indemnify and
hold harmless the other party from any and all claims for which the required insurance would
have provided coverage Further, an the event of any such failure which continues after seven (7)
days' written notice thereof by the other party, such other party may, but shall not be obligated
to, obtain such insurance and wit have the right to be reimbursed for the cost of such insurance
by the party failing to obtain such insurance.
1 1.4 In the event coverage is denied or reimbursement of a properly presented claim is
disputed by the carrier for insurance provided above, the party carrying such coverage shall
make good -faith efforts to pursue such claim with its carrier.
1 1.5 City and i Jrande hereby mutually waive their respective rights of recovery against
0
KANDE TOMMLMCATIO\SNETWO,ZKS.I`% CONFIDENTIAL AND PROPRIETARY
each other and the officers, directors, snareholders, partners, joint venturers, employees, agents,
customers, invitees. or business visitors of either party, for any loss arising from any cause
coN ered or that would be covered b , fire, extended coverage, All Risks or other insurance
required to be carred under this Agreement or now or hereafter existing for the benefit of the
respective party, City and Grande will cause from time to time their respective insurers to issue
appropriate waiver of subrogation rights endorsements to all property insurance policies carried
in connection with their respectiv,; property.
ARTICLE 12.
TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS
' 2 1 City is not responsible frr payment of any taxes for City's use of any part of Grande
S vstem .
ARTICLE 13.
NOTICES
All notices and other communications required or permitted under this Agreement shall
be in writing and shall be given by United States first class mail, postage prepaid, registered or
certified, return receipt requested. or by hand delivery (including by means of a professional
messenger service or overnight mail) addressed as follows:
All notices and other communications shall be given to Grande at:
Grande Communications Networks, Inc.
401 Carsor Circle
San Marcos. TX '8666
Attn: President
Wthacop 4to
Grande Communications Networks, Inc.
401 Carson Circle
San Marcos. TX 78666
Attn: General Counsel
All notices and other communications shall be given to User at:
City of Corpus Christi
1201 Leopard Street
Corpus Christi, Texas 78401
Attention: City Manager
With a copy to:
City of Corpus Christi
lI
JRANDE COMMUNRCATIONS NETWOR KS. t CONFIDENTIAL AND PROPRIETARY
1-2.01 Leopard Street
Corpus Christi, Texas 78401
Attention: City Attorney
Any such notice or other communication shall be deemed to be effective when
actually received or refused. Ether party may by similar notice given change the address to
which future notices or other communications shall be sent.
ARTICLE 14.
CONFIDENTIALITY
4.1 As used herein, '-Confidential Information" shall mean this Agreement and all
materials, maps, and other documents that are marked confidential and disclosed by one party to
the other in fulfilling the provisions and intent of this Agreement, as well as confidential or
proprietary information that is orally disclosed, provided that, for information that is orally
disclosed, the disclosing party indicates to recipient at the time of disclosure the confidential or
proprietary nature of the information and confirms in writing to the recipient within 30 days after
such disclosure that such information is confidential. Each party agrees to hold the Confidential
Information of the other party it confidence. Neither party shall divulge or otherwise disclose
the provisions of this Agreement to any third party without the prior written consent of the other
party, except that either party may make disclosure to those required for the implementation of
this Agreement, and to customers and prospective customers, purchasers and prospective
purchasers, auditors, attorneys, financial advisors, lenders and prospective lenders, investors and
prospective investors, provided that in each case the recipient agrees in writing to be bound by
the confidentiality provisions set forth in this section. In addition, either party may make
disclosure as required by a court order or as otherwise required by law or in any legal or
arbitration proceeding relating to this Agreement. If either party is required by law or by
interrogatories, requests for information or documents, subpoena, civil investigative demand or
sirnilar process to disclose the provisions of this Agreement or the design information referred to
in this Section, it will orovidc the other party with prompt written notice of such request or
requirement so that such parte may seek an appropriate protective order and/or waive
compliance with this Section. The party whose consent to disclose information is requested shall
respond to such request, in writing. within ;give (5) working days of the request by either
authorizing the disclosure or advising of its election to seek a protective order, or if such party
fails to respond vv ithin the prescribed period the disclosure shall be deemed approved.
a N=othing herein shall be construed as granting any right or license under
any copyrights, inventions, or patents now or hereafter owned or controlled by Grande.
(b Upon termination of this Agreement for any reason or upon request of
Grande, City shall return all Confidential Information, together with any copies of same, to
Grande. The requirements of confidentiality set forth herein shall survive return of such
Confidential Information.
(c City shall not, without first obtaining written consent of Grande, use any
trademark or trade name of Grande or refer to the subject matter of this Agreement or Grande in
12
iR ANDE COMMI ti NETWC RKS.INC'CONFIDENTIAL AND PROPRIETARY
any promotional activity or otherwise. nor disclose to others any specific information about the
subject matter of this Agreement.
14.2 The provisions 01 this Article are subject to the Texas Public Information
Ac: If City receives a request for any of Grande's Confidential
Information. City shall notify Grande of the request, so that Grande may
present its written arguments to the Texas Attorney General. The City
shall release Grande's Confidential Information if directed to do so by the
Te Kas Attorney General.
a.3 The provisions of this Article shall survive expiration or other termination
of his Agreement.
ARTICLE 15.
DEFAULT
A default shall be deemed to have occurred under this Agreement if:
(a) in he case a failure to pay any amount when due under this Agreement,
a party fails to pay such amount within ten (10) days after receipt of notice specifying such
breach, or
(b) in the case of any other material breach of this Agreement, a party fails to
cure such within thirty (0) days after receipt of notice specifying such breach, provided that if
the breach is of a nature that cannot be cured within thirty (30) days, a default shall not have
occurred so long as the breaching party has commenced to cure within said time period and
thereafter diligently pursues such cure to completion.
15.2 The foregoing notwithstanding, if the default consists of a failure to pay any part
of the License Fee. nonpaying party shall forfeit its license and its rights in the other party's
Fibers, and non -defaulting party may terminate any and all of its obligations under this
Agreement and apply any and all amounts previously paid by defaulting party hereunder toward
the payment of any other amounts then or thereafter payable by defaulting party hereunder. In
the event of any other default hereunder, the non -defaulting party may avail itself of one or more
of the following remedies: (a) take such action as it determines, in its sole discretion, to correct
the default; and (b) pursue any legal remedies if: may have under applicable law or principles of
equity, including specific performance
15.3 A waiver by either party at any time of any of its rights as to anything herein
contained shall not be deemed to be a waiver of any breach of covenant or other matter
subsequently occurring.
ARTICLE 16.
TERMINATION
This Agreement shall automatically terminate on the expiration of the Term or earlier as
provided in this Agreement t pon the expiration of the Term or other termination of this
R AMIE 'OMMI NtC 4TMO\ 5 NE s WOkKS, ;\C CONFIDENTIAL AND PROPRIETARY
\greement for default, the defaulting party shall immediately terminate and all rights to use the
non -defaulting party's Sti stem Route and the Associated Property, shall cease, all rights to use of
the System Route shall evert to non -defaulting party, and the non -defaulting party shall owe
defaulting party no further duties or consideration. Upon termination at expiration of the Term,
each party shall promptly remove all of its electronics, equipment, and other property from the
other party's System Route and facilities at its sole cost and under other party's supervision.
i ermination of this Agreement shall not affect he rights or obligations of either party that have
arisen before the date of - erminatlon or expiration.
ARTICLE 17.
FORCE MAJEURE
Neither party shall be liable to the other party, and each party's performance under this
Agreement shall be excused, it and to the extent that any failure or delay in such party's
performance of one or more of its obligations hereunder is caused by any of the following
conditions, and such party's performance of such obligation or obligations shall be excused and
extended for and during the period of any such delay: act of God; fire; flood; fiber, Cable, or
other material failures, shortages or unavailability or other delay in delivery not resulting from
the responsible party's failure to timely place orders therefor; lack of or delay in transportation;
government codes, ordinances. laws, rules, regulations or restrictions (collectively,
-Regulations"), war or .civil disorder. strikes or other labor disputes; failure of a third party to
arrant or recognize an !. nderlying Right (provided that party seeking an Underlying Right has
made timely and reasonable commercial efforts to obtain the same); inability of either party to
obtain track time or access to thear System; or any other cause beyond the reasonable control of
such party. The party claiming relief under this Article shall notify the other in writing of the
existence of the event relied on and the cessation or termination of said event, and the party
;_laimtn, relief shall exercise reasonable commercial efforts to minimize the time of any such
delay
ARTICLE 18.
INTENTIONALLY DELETED
ARTICLE 19.
ASSIGNMENT AND USER FIBER TRANSFERS
Neither Party shall have the right to assign or otherwise transfer this Agreement without
the prior written consent of the other Party, which shall not be unreasonably withheld.
ARTICLE 20.
REPRESENTATIONS WARRANTIES AND ACKNOWLEDGMENTS
20.1 Each party represents and warrants that:
(a) it has the full right and authority to enter into, execute, deliver and
perform its obligations under this Agreement;
14
GRANDE' COMMINIC.ATIO'S NETWORKS, INC CONFIDENTIAL AND PROPRIETARY
(b) thi Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency,
creditors rights and general equitable principles and
(ci its execution of and performance under this Agreement shall not violate
anv applicable existing regulations, rules, statutes or court orders of any local, state or federal
government agency, court or bode
2( ).2 Each part, represents and warrants to other party that:
(a) Each party has obtained or will obtain all permits and other governmental
approvals required for the installation of the System Route.
(b) In its ownership, operation and maintenance of the Grande System,
Grande will comply with all applicable local. municipal, state or federal laws, orders and
regulations.
20.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
GRANDE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE USER FIBERS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE
HEREBY EXPRESSI.Y DISCLAIMED. IN ADDITION, GRANDE MAKES NO
WARRANTIES OR REPRESENTATIONS OF ANY TYPE CONCERNING THE
INTEGRITY OR PERFORMANCE OF THE MATERIALS FURNISHED OR
DESIGNATED BY USER.
ARTICLE 21.
GENERAL
21,1 Binding Effect. This Agreement and each of the parties' respective rights and
obligations under this Agreement, shall be binding on and shall inure to the benefit of the parties
hereto and each of their respective„ permitted successors and assigns.
21.2 Waiver. rhe failure of either party hereto to enforce any of the provisions of this
Agreement, or the waiver thereof in any instance, shall not be construed as a general waiver or
relinquishment on its part of any such provision. but the same shall nevertheless be and remain in
'ull force and effect.
21.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Texas, without reference to its choice of law
principles,
21.4 Rules of Construction. The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement or as amplifying or
limiting any of its content. Words in this Agreement which import the singular connotation shall
aNI)E'OMMUNICAT[ONS NETWO,ZKS.
CONFIDENTIAL AND PROPRIETARY
be interpreted as plural, and words which import the plural connotation shall be interpreted as
singular. as the identity at the parties or objects referred to may require.
t > Unless expressly defined herein, words having well known technical or
trade meanings shall be so construed. All listing of items shall not be taken to be exclusive, but
shall include other items, whether similar or dissimilar to those listed, as the context reasonably
require!,
(b> Except as set forth to the contrary herein, any right or remedy of User or
Grande shall be cumulative and without prejudice to any other right or remedy, whether
contained herein or not.
(c t Nothing in this Agreement is intended to provide any legal rights to
anyone not an executing party of this Agreement.
(d) Thks Agreement has been fully negotiated between and jointly drafted by
the parties.
(e) Al actionsactivities, consents, approvals and other undertakings of the
parties in this Agreement shall he performed in a reasonable and timely manner, it being
expressly acknowledged and understood that time is of the essence in the performance of
obligations required to be performed by a date expressly specified herein. Except as specifically
set forth herein. for the purpose of this Agreement the standards and practices of performance
Within the telecommunications industry in the relevant market shall be the measure of a party's
performance.
21.5 Entire Agreement. This Agreement, together with any Confidentiality Agreement
entered into in connection herewith, constitutes the entire and final agreement and understanding
between the parties with respect to the subject matter hereof and supersedes all prior agreements
relating to the subject matter hereof. which are of no further force or effect. The Exhibits
referred to herein are integral parts hereof and are hereby made a part of this Agreement. To the
extent that any of the provisions of any Exhibit hereto are inconsistent with the express terms of
!his Agreement. the terms of this .Agreement shall prevail. This Agreement may only be
modified or amended bY an inst°-ument in writing executed by each party and delivered to the
Party relying on the writing.
1.6 No Personal Liability Each action or claim against any party arising under or
relating to this Agreement shat be made only against such party as a corporation, and any
liability relating thereto shall be enforceable only against the corporate assets of such party. No
party shall seek to pierce the corporate veil or otherwise seek to impose any liability relating to,
or arising from, this Agreement against any shareholder, employee, officer or director of the
other party. Notwithstanding anything in this Agreement to the contrary, each of such persons is
an intended beneficiary of the mutual promises set forth in this Article and shall be entitled to
enforce the obligations cf this Article
16
=:iRAN[)F COMMU'NIC'ATIONS NETWORKS IliiI CONFIDENTIAL AND PROPRIETARY
21.7 Relationship of the Parties. The relationship between the parties shall not be that
of partners, agents, or jcxint venturers far one another, and nothing contained in this Agreement
shall be deemed to constitute a partnership or agency agreement between them for any purposes,
Including, but not limited to federal income tax purposes. The parties, in performing any of their
obligations hereunder, shall hr independent contractors or independent parties and shall
discharge their contractaal obligations at their own risk subject, however, to the terms and
onditons hereof
21.8 Severability. If any termcovenant or condition contained herein is, to any extent,
held invalid or unenforceable in any respect under the laws governing this Agreement, the
remainder of this Agreement shall not be affected thereby, and each term, covenant or condition
of this Agreement shall he valid and enforceable to the fullest extent permitted by law.
21.9 Counterparts. This Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one and the same instrument.
1 n confirmation , if their consent and agreement to the terms and conditions contained in
this Agreement and intending to he legally bound hereby, the parties have executed this
Agreement as of the date first above written.
GRANDE:
Grande Communications Networks, Inc.
Bv:
Name:
Title:
Date:
CFir>
giZ.o/yoc7
CITY:
City of Corpus Christi
Bv
Name:
Title:
Date:
17
=RANi)F COMMUNICATIoyIS NETWORKS_ INC CONFIDENTIAL AND PROPRIETARY
GLOSSARY" OF TERMS
The following terms shall have the stated definitions in this Agreement.
"Allocable Shares is defined in section 7.3.
``As -Built," is defined in section 5.01
"Cable" ineans the fiber optic cable and the fibers contained therein, and
associated splicing connections, splice boxes, and vaults to be installed by GRANDE as part of
the Grande System
"Costs" means al? actual, direct costs paid or payable in accordance with the
established accounting procedures generally used by Grande and which it utilizes in billing third
parties for reimbursable projects which costs shall include, without limitation, the following:
ti) internal labor costs. including wages and salaries, and benefits, and (ii) other direct costs and
out-of-pocket expenses on a pass-through basis (e g., equipment, materials, supplies, contract
services. etc.).
Effective Date" i . defined in the introductory paragraph to this Agreement.
"Planned System Work Period" or "PSWP" means a prearranged period of time
reserved for performing certain work on the GRANDE System that may potentially impact
traffic Generally, this w ill be restricted to weekends, avoiding the first and last weekend of each
month and high -traffic weekends The PSWP shall be agreed upon pursuant to Exhibit D.
"Grande System" ".hall have the rneaning ascribed thereto in Exhibit A.
City Sysem" shalt have the meaning ascribed thereto in Exhibit Al.
"Segment " shall mean a pair described in Exhibit A or Exhibit A-1.
"Underlying Rights" is defined in Section 9.1.
1 -Best efforts"] ['`L"easonable commercial efforts"], when used herein in
connection with a covenant of a party to this Agreement, shall not obligate such
party, unless otherwise specifically required by the operative covenant, to make
unreimbur sed expenditures (other than costs or expenditures that would have been
required (,f such party in the absence of the requirements of such covenant) that
are material in amount. in light of the circumstances to which the requirement to
use hest efforts applies
t8
tR ANG;E OMMUNICATIO\S NETWORKS, `\(
CONFIDENTIAL AND PROPRIETARY
EXHIBIT A
TO RECIPROCAL FIBER LICENSE AGREEMENT
GRANDE SYSTEM ROUTE
Grande will pro\ ide four dark fibers (except as noted), from the City Service Center to the public
ROW adjacent tcthe folio v ging city facilities:
2300 Rodd Field (F-
2 5805 Williams ( Clin.c )
3 5901 S Staples ( F-1.4 )
4 Yorktown & Staples S.0
5 Cedar Pass & Everhar S.( i
6 6713 Weber ( F- 6 )
7 3202 Cabrrtas Prkw. t Natatorium )
8 Alameda & Ocean ( " C.
9 5601 S. Alameda ( Oso Golf Course
10 910 Airline- (F-1 1 1
11 1025 Carmel Prkw, ( S.C. *18 fibers)
12 4639 Kostoryz ( F- 8
13. 3722 S. Staples (F- "
14. 4225 S. Port ( Gas D<:partment
15. Gollihar & Weber
16. Saratoga & Weber
17 Saratoga & Everhardt
18. Saratoga & Staples
19. Saratoga &. Cimarron,
20 Saratoga & Airline
21. Saratoga & Rodd Field
22 Service Center to Saratoga & Rodd Field **(2
fibers)
Grande will provide 30 dark fibers from the City Service Center to the intersection of Sacky Drive and Richter
Street, and 36 dark fibers on Saratoga from Weber Road to Rodd Field.
19
f<ANI)E COMMUN1CATIONSNETW(RKS N(
CONFIDENTIAL AND PROPRIETARY
EXHIBIT Al
TO RECIPROCAL. FIBER LICENSE AGREEMENT
CITY SYSTEM ROUTE
Tie City will provide two dark fibers from the existing fiber interconnect at the intersection of Ayers and
Holly to the f'oIlowinw facilities
I- 1201 Leopard (City Hall)
2 KZTV, 30 Artesian 't
3 Del Mar East, 3209 S. Staples
4 KEDT. 44.5 S. Pada Island Dr., Suite 38
20
GR AND E COMMC N RI AT1OS NETWORKS.: N( CONFIDENTIAL AND PROPRIETARY
EXHIBIT B
TO RECIPROCAL FIBER LICENSE AGREEMENT
Fiber Cable Splicing, Testing and Acceptance Procedures
All splices will be performed with an industry -accepted fusion splicing machine. Testing
will be documented on diskettes in Laser Precision format and on trace analysis sheets reflecting
hi-direct.onal losses by fiber and Installed span loss by fiber. One copy of trace diskettes and
)nc cope of trace analysis sheets .gill he submitted. All testing will be performed at 1550 nm.
During initial uni-directional OTDR testing, a general indicator of the quality of each
splice will be an objective loss 01 0.14) dB or less. If, after three attempts, Grande is not able to
produce a loss value of ess than 0.10 dB, then 0.20 dB will become the objective. If, after two
additional attempts. a value of less than 0.20 is not achievable, then the splice will be marked as
-Out—of -Spec" (OOS) on a field data sheet. fhe parties recognize that uni-directional OTDR
crest data is not an acceptanceirejection criterion
The installed span loss (span shall be IDP to FDP) shall be a bi-directional average of
t.0 dB km or less, as .;alculated using an industry -accepted optical loss test set at 1550 nm.
The installed span loss includes the inherent attenuation of the glass, the backbone splice losses,
the pigtail splice losses. the inherent loss in the pigtails, and the connector losses.
(,)ptical Return Loss (ORL) be recorded on the testing documentation, for
information only-
l'he entire Liber optic cab e system shall be properly protected from foreign voltage and
grounded with an industry-accep.ed system. The current systems in use by Grande are the ACT
4400- 50 and the Norscan 2'45 'SGL
fhe fibers shall be terminated to the FDP with Ultra FC -PC connectors, unless another
Type of eonnector is specified.
21
()RAN )t COMM t N1CAU()\SNETWORKS, INC
CONFIDENTIAL AND PROPRIETARY
EXHIBIT C
TO RECIPROCAL_ FIBER LICENSE AGREEMENT
Connecting Points
Delivery dates vol`: be individually determined jointly by Grande and City but in no
instance shall be less than 30 days for a splice point or 90 days for a shared manhole or handhole.
On phase completion, both timelines will be based on accessing existing Grande splice points
and cooperation from any and all third party or governmental entities that may require oversight.
All times will be measured from the date City provides to Grande detailed connection plans for a
specific connecting point.
Timelines are based on ('.ty obtaining permits, licenses and cooperation from any and all third
party or governmental entities that may require oversight to City's access to the splice points,
and City shall bear all costs associated therewith" Grande's sole responsibility shall be the
splicing of City's cable to the City Fibers or constructing the handhole.
2
Pricing for connections is as follows:
Grande will provide all fiber for the Grande System Route and the City shall provide the
labor and other materials -iecessarr to establish the connections to the adjacent City facilities.
City shall provide all fiber for the City System Route and the labor and other materials necessary
to establish the connections to the adjacent Grande facilities.
"2
=.•RANDS 'OMMUNICaTIONS NETWORKS. IN : CONFIDENTIAL AND PROPRIETARY
EXHIBIT D
TO RECIPROCAL, FIBER LICENSE AGREEMENT
Grande System Maintenance Specifications and Procedures
Any party responsible for providing maintenance of the Grande System hereunder shall be
referred to herein as the "Service Provider." The Party receiving maintenance services from the
Service Provider hereunder shall be referred to herein as the "Service Recipient". All other
capitalized terms not otherwise defined herein shall have their respective meanings as set forth in
the IRI. Supplement of which this Exhibit forms a part.
Maintenance.
(a) Scheduled Maintenance. Routine maintenance and repair of the Grande
System described in this section ("Scheduled Maintenance") shall be performed by or under the
direction of Service Provider. at Service Provider's reasonable discretion or at Service
Recipient's request. Scheduled Maintenance shall commence with respect to each Segment upon
the effective date of the grant of the IRE.` therein. as provided in the IRU Supplement. Scheduled
Maintenance shall include the following activities:
(i Patrol of Grande System route on a regularly scheduled basis,
which will be weekly unless hyrai I access is necessary, in which case, it will be quarterly;
(i1 Maintenance of a "Call -Before -You -Dig" program and all required
anu related cable locates_
(b) Unscheduled Maintenance. Non -routine maintenance and repair of the
Grande System which is not included as Scheduled Maintenance ("Unscheduled Maintenance"),
shall be performed by or under the direction of Service Provider. Unscheduled Maintenance
shall commence with respect to each Segment upon the effective date of the grant of the IRU
therein, as provided in the IRU Supplement. Unscheduled Maintenance shall consist of:
(i; "Emergency Unscheduled Maintenance" in response to an alarm
identification by Service Provider's Operations Center, notification by Service Recipient or
notification by any third party of any failure, interruption or impairment in the operation of the
Grande System, or any event imminently likely to cause the failure, interruption or impairment in
the operation of the Grande System,
(ii '-Non-Emergency Unscheduled Maintenance" in response to any
potential service -affecting situation to prevent any failure, interruption or impairment in the
operation of the Grande System.
Service Recipient shall immediately report the need for Unscheduled Maintenance to
Service Provider in accordance with procedures promulgated by Service Provider from time to
time. Service Provider will log the time of Service Recipient's report, verify the problem and
R ANILE -'OMMU"NIC ATIONS NETWORKS, INC CONFIDENTIAL AND PROPRIETARY
dispatch personnel immediately to take corrective action.
Operations Center
Service Provider shall operate and maintain an Operations Center ("OC") staffed
twenty-four (24) hours a day, seven (7) days a week by trained and qualified personnel. Service
Provider s maintenance employees shall be available for dispatch twenty-four (24) hours a day,
seven (7) days a week. Service Provider shall have its first maintenance employee at the site
requiring Emergency Unscheduled Maintenance activity within two (2) hours after the time
Service Provider becomes aware c F an event requiring Emergency Unscheduled Maintenance,
unless delayed by circumstances beyond the reasonable control of Service Provider. Service
Provider shall maintain a toll-free telephone number to contact personnel at the OC. Service
Provider s OC personnel shall dispatch maintenance and repair personnel along the system to
handle and repair problems detected in the Grande System, (i) through the Service Recipient's
remote surveillance equipment and upon notification by Service Recipient to Service Provider,
or ii) upon notification by a third party
Cooperation and Coordination.
(a) Service Recipient shall utilize an Operations Escalation List, as updated
from time to time. to report and seek immediate initial redress of exceptions noted in the
performance of Service Provider n meeting maintenance service objectives.
(b) Service Recipient will, as necessary, arrange for unescorted access for
Service Provider to all sites of the Grande System, subject to applicable contractual, underlying
real property and other third -party limitations and restrictions.
(c) In performng its services hereunder, Service Provider shall take
workmanlike care to prevent impairment to the signal continuity and performance of the Grande
System. The precautions to be taken by Service Provider shall include notifications to Service
Recipient. In addition, Service Provider shall reasonably cooperate with Service Recipient in
sharing information and analyzing the disturbances regarding the cable and/or fibers. In the
event that any Scheduled or Unscheduled Maintenance hereunder requires a traffic roll or
reconfiguration involving cable, fiber, electronic equipment, or regeneration or other facilities of
the Service Recipient, then Service Recipient shall, at Service Provider's reasonable request,
make such personnel of Service Recipient available as may be necessary in order to accomplish
such maintenance, which personnel shall coordinate and cooperate with Service Provider in
performing such maintenance as required of Service Provider hereunder.
(d) Service Provider shall notify Service Recipient at least ten (10) business
days prior to the date in connection with any PSWP of any Scheduled Maintenance and as soon
as possible after becoming aware of the need for Unscheduled Maintenance. Service Recipient
shall have the right to be present during the performance of any Scheduled Maintenance or
1'nscheduled Maintenance so long as this requirement does not interfere with Service Provider's
ability to perform its obligations under this Supplement. In the event that Scheduled
Maintenance is canceled or delayed for whatever reason as previously notified, Service Provider
24
;k
AN I* COMMI1N ATIOS NETW( i:KS :N(1' CONFIDENTIAL AND PROPRIETARY
shall notify Service Recipient at Service Provider's earliest opportunity, and will comply with
the provisions of the previous sentence to reschedule any delayed activity.
4 Facilities
(a) Service Provider shall maintain the Grande System in a manner which will
permit Service Recipient- s use, in accordance with the terms and conditions of the Reciprocal
Fiber License Agreement. the User Fibers and the Associated Property required to be provided
under the terms of the Reciprocal Fiber License Agreement.
(b) Except to the extent otherwise expressly provided in the Reciprocal Fiber
License .Agreement, Service Recipient will be solely responsible for providing and paying for
any and all maintenance of all electronic, optrontc and other equipment, materials and facilities
used by Service Recipient in connection with the operation of the Dark Fibers, none of which is
included in the maintenance services to be provided hereunder.
C able/Fibers.
(a) Service Provider shall perform appropriate Scheduled Maintenance on the
Cable contained in the Grande System in accordance with Service Provider's then current
preventative maintenance procedures as agreed to by Service Recipient, which shall not
substantially deviate from standard industry practice.
(b) Service Provider shall have qualified representatives on site any time
Service Provider has reasonable advance knowledge that another person or entity is engaging in
construction activities or otherwise digging within five (5) feet of the Cable.
(c) Service Provider shall maintain sufficient capability to teleconference with
Service Recipient during an Emergency Unscheduled Maintenance in order to provide regular
communications during the repair process. When correcting or repairing Cable discontinuity or
damage. including but not limited to in the event of Emergency Unscheduled Maintenance,
Service Provider shall use reasonable efforts to repair traffic -affecting discontinuity within four
41 hours after the Service Provider maintenance employee's arrival at the problem site. In order
to accomplish such objective, it is acknowledged that the repairs so effected may be temporary in
nature In such event, within twenty-four (24) hours after completion of any such Emergency
l ;rescheduled Maintenance, Service Provider shall commence its planning for permanent repair,
and thereafter promptly shall notify Service Recipient of such plans, and shall implement such
permanent repair within an appropriate time thereafter. Restoration of open fibers on fiber
strands not immediately required For service shall be completed on a mutually agreed-upon
schedule. If the fiber is required for immediate service, the repair shall be scheduled for the next
available Planned Service Work Period (PSWP)
(d) Ir perforniing repairs, Service Provider shall comply with the splicing
specifications as set forth in Exhibit B. Service Provider shall provide to Service Recipient any
modifications to these specifications as may be necessary or appropriate in any particular
nstance for Service Recipient's approval. which approval shall not be unreasonably withheld.
25
JRANDI C.'OMMCNItMATIONSNE"lwWRKS.IyICCONFIDENTIAL AND PROPRIETARY
Service Pro vider`s representatives that are responsible for initial
restoration of a cut Cable shall carry on their vehicles the typically appropriate equipment that
would enable a temporary splice, 1kith the objective of restoring operating capability in as little
time as possible. Service Provider shall maintain and supply an inventory of spare Cable in
storage facilities supplied and maintained by Service Provider at strategic locations to facilitate
tamely restoration,
Planned Service Work Period (PSWP).
Scheduled Maintenance which is reasonably expected to produce any signal
discontinuity must be coordinated between the parties. Generally, this work should be scheduled
after midnight and before 6:00 a.m. local time. Major system work, such as fiber rolls and hot
cuts, will be scheduled for PSWP weekends. A calendar showing approved PSWP will be
agreed upon in the last quarter of even year for the year to come. The intent is to avoid jeopardy
work on the first and last weekends of the month and high -traffic holidays.
Restoration.
(a) Service Provider shall respond to any interruption of service or a failure of
the Dark Fibers to operate (in any event. an "Outage") as quickly as possible (allowing for delays
caused by circumstances beyond the reasonable control of Service Provider) in accordance with
the procedures set forth herein.
(b) When restoring a cut Cable in the Grande System, the parties agree to
work together to restore all traffic as quickly as possible. Service Provider, promptly upon
arriving on the site of the cut, shall determine the course of action to be taken to restore the Cable
and shall begin restoration efforts Sen ice Provider shall splice fibers tube by tube or ribbon by
ribbon or fiber bundle by fiber bundle, rotating between tubes or ribbons operated by the separate
interest Holders (as defined in paragraph 9(a)), including Service Recipient, in accordance with
the following described priority and rotation mechanics; provided that, lit fibers in all buffer
tubes or ribbons or fiber bundles shall have priority over any dark fibers in order to allow
transmission systems to ome back on line; and provided further that, Service Provider will
continue such restoration efforts until all lit fibers in all buffer tubes or ribbons are spliced and
all traffic restored. In general, priority among Interest Holders affected by a cut shall be
determined on a rotating restoration-bv-restoration and Segment -by -Segment basis, to provide
rair and equitable restoration priority to. all Interest Holders, subject only to such restoration
priority to which Grande is contractually obligated prior to the date of the Supplement. Service
Provider shall use all reasonable ...fforts to implement a Grande System -wide rotation mechanism
.)n a Segment -by -Segment basis so that the initial rotation order of the Interest Holders in each
Segment is varied (from earlier to later in the order), such that as restorations occur, each Interest
Holder has approximately equivalent rotation order positions across the Grande System.
kdditional participants in the Grande System that become Interest Holders after the date hereof
shall be added to the restoration rotation mechanism.
The goal of emergency restoration splicing shall be to restore service as
26
RANI)E COMMUNKC'ATIO' SNETWCRKS. (
CONFIDENTIAL AND PROPRIETARY
quickly; as possible This may require the use of some type of mechanical splice, such as the
..7,M Fiber Lock" to complete the temporary restoration. Permanent restorations will take place
as soon as possible after the temporary splice is complete.
Subcontractinc..
Service Provider may subcontract any of the maintenance services hereunder;
provided that Service Provider shall require the subcontractor(s) to perform in accordance with
the requirement and procedures set forth herein. The use of any such subcontractor shall not
relieve Service Provider of any of its obligations hereunder.
9 Fees and Costs.
(a) Unscheduled Maintenance Fees. For any Unscheduled Maintenance, the
Costs thereof shall be allocated among the various Interest Holders in the conduit, cable an/or
fibers affected thereby as follows (i) Costs of Unscheduled Maintenance solely to or affecting a
conduit or cable which houses fibers of a single Interest Holder shall be borne 100% by such
Interest Holder; tit) Costs of Unscheduled Maintenance to or affecting a conduit which houses
multiple innerduci conduits, not including such Costs attributable to the repair or replacement of
Liber therein, shall he borne proportionately by the Interest Holds in each of the affected
nnerduct conduits based on the ratio that such affected conduit bears to the total number of
affected tnnerduct conduits, and (Ili) Costs of Unscheduled Maintenance attributable to the repair
or replacement of fiber, including the acquisition, installation, inspection, testing and splicing
thereof, shall be borne proportionately by the Interest Holders in the affected fiber, based on the
ratio that the number of affected fibers subject to the interest of each such Interest Holder bears
o the total number of affected fibers. A]I such Costs which are allocated to Service Recipient
pursuant to the foregoing provisions shall be the responsibility of and paid by Service Recipient
vithin thirty (30 s days atter its receipt from Service Provider of an invoice therefor.
(h) Costs. "Costsmeans the actual, direct costs paid or payable in
accordance with the established accounting procedures generally used by each party, as the case
maybe, and which it utilizes in billing third parties for reimbursable projects, which costs shall
,nclude, without limitation, the following: (i) labor costs, including wages and salaries, and
benefits and overhead allocable to such labor costs (overhead allocation percentage shall not
xceed the lesser of (x) the percentage Service Provider typically allocates to its internal projects
r (y) thirty -percent (30°0), and (i) other direct costs and out-of-pocket expenses on a pass-
through basis (e.g.. equipment, materials, supplies, contract services, etc.).
Term.
Service Provider's obligation to perform maintenance on the relevant portion of
the Grande System shall be for an initial term expiring one (1) year from contract execution, and
unless a different Service Provider is selected by the Interest Holders under a mutually agreed
selection process, then Grande shall be the Service Provider. Thereafter, Grande shall have no
obligation to provide Scheduled or Unscheduled Maintenance hereunder, but shall be entitled to
participate in any process selected by the Interest Holders as a potential Service Provider.
ANI?E { OMMUN CATIQN,SNETWC RKS. Ni CONFIDENTIAL AND PROPRIETARY
That the foregoing . ,. finance a ad for the first time and passed to its second
reading on this the t+�•rad
ay of (\i 2007, by the following vote:
Henry Garrett
Brent Chesney
John E Marez
Melody Cooper
Jerry Garcia
Bill Kelly
Rex A. Kinnison
Jesse Noyola
Mark Scott
That Itm,foregoing Qrdinance was read for the second time and passed finally on this
the rim
day of F- i -la 2007. by the following vote:
Henry Garrett
Brent Chesney
John E Marez
Melody Cooper
Jerry Garcia
17
APPROVED AND PASSED on this I
ATTEST
Bill Kelly
Rex A. Kinnison
Jesse Noyola
Mark Scott
Armando Chapa. City Secretary
Approved d�\-04•1 , I `,
Lisa Aguilar L
Assistant City Attorney
for City Attorney
day of
, 2007.
f r)r) ► f)
• ._
EFFECTIVE DATE
State! or Texas
County a Nueces
PUBLISHER'S AFFIDAVIT
CITY OF CORPUS CHRISTI
ss. Ad # 5722321
PO #
Before me, the undersigned, a Notary Public. this day personally came Sandra
Orurn, ho being first duly- sworn, according to law, says that she is Legal
Sales Representative of the Corpus Christi Caller -Times, a daily newspaper
oubiishel at Corpus Christ, in said City and State, generally circulated in
Aransas. Bee. Brooks Duva's Jim Hogg. Jim Wells, Karnes, Kenedy, Kleberg,
ivt' Oak. Nueces. Refugio, San Patricio, Victoria and Webb Counties, and that
the publication 1)1, NOTICE OF PUBLIC HEARING TO which the annexed is a
true cop=y, was inser! ed in he Corpus Christi Caller -Times and on the World
Wide Web on the C_allfer-Times Interactive on the 23RD day(s) of APRIL, 2007.
$262.62
0111-1-406-ct, 04,64)-vt..J
Legal Sales Representative
TWO (2 ) Time(s)
Subsib:.dd sworn to me on the date of
410%
N tare Public, Nueces County, Texas
PATRICK C. SAUCIEP
MY COMMISSION EXPIRES
Jemmy 3, 2011
MI -
Sunday April 22, 2007
OTICE OF PASSAGE
OF ORDINANCE NO.
027222
Authorizing the City
Manager or his
designee to execute a
ten-year reciprocal
f'ber license
agreement with
3 r n d e
Cotnmanications
Networks, Inc.
("Grande') for the City
to receive use of
approximately 82.9
miles of Grande fiber,
and Grande to receive
use of approximately
18.9 miles of City fiber;
providing for refund of
$700,000 security
deposit established in
the Grande cable
'ranchise. his
ordinance was passed
on its second reading
by the City Council of
the City cif Corpus
Christi ori April 17
2007
'si Armando Chapa
City Secretary
'711v of Cornus Christi
State of Texas
County o4 Nueces
PUBLISHER'S AFFIDAVIT
CITY OF C )RPLS C )P
ss: Ad # 370 ") 1 9
PO #
Before me, the undersigned, a Notary Public, 1 -us (lac p r s, = ,alis i to SLi. �c<
Orum, who being first duly sworn, accordin4 t; - rm: �f
Sales Representative of the Corpus Christi ( :-vier- Tim
dal
published at Corpus Christi in said City an State ei alh, c •att ,
Aransas, Bee, Brooks, Duval, Jim Hogg, Jim YV'eells Ka kr' ,ic
Live Oak Nueces, Refugio, San Patricio, Victoi it and W
the publication of, NOTICE OF PASSAGE LF ORDI\-
annexed is a true copy, was inserted in the Cclpus Chr
the World Wide Web on the Caller -Times In Eluctwe
MARCH, 2007.
$120.67
C&C.tyleLc,�
Legal Sales Rep, esentativ
TWO (2 ) Time(s
zlier rte -
Subscribed and sworn to 1(
Notary Public, I\ ueces Co ; n Tex
. March 2512007
NICEOF
Ordinance
the City M
designee to
ten-yearial
fiber te
agreement tih
Grand e
Communications
Networks, inc
("Grande") for the City
to receive ua o',
approximatrAy $2.G
mites of Gr
and Grande
use of
18.9 miles
providing for d of
$100,00Q ecurity
deposit it
the Grande cable
franchise. This
ordinance p ssee
on first re by the
City Counolk the Cite
of Corpus sti or
March 20, 2307.
is/ Amtantto Chape
Cttylsc retar,
City of Cotes Christ
A