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HomeMy WebLinkAboutContract 42705City Secretary Contract No. q d-1 c), MASTER FIBER AGREEMENT Between City of Fort Worth And Marcus Cable Associates, LLC 12/13/2011 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX MASTER FIBER AGREEMENT This Master Fiber Agreement (the "Agreement ") is made as of the last date signed below ( "Effective Date "), by and between Marcus Cable Associates, LLC, a Delaware limited liability company and a subsidiary of Charter Communications, Inc., ( "Charter Business" or "Charter" or "Provider "), on behalf of itself and any of its Affiliates and the City of Fort Worth ( "City" or "Recipient "), a Texas municipal corporation, individually each a "Party;" collectively, the "Parties." RECITALS WHEREAS, Recipient and Provider wish to establish an agreement under which Recipient has previously obtained from Provider a license to exclusively use dark fibers along such route of Provider for Recipient's use, each as specified in Exhibit A. The form of consideration paid shall be set forth in Exhibit A. With respect to all matters in which Provider is providing fibers or other associated rights to Recipient, Provider shall be referred to as "Provider" and the Recipient receiving those fibers shall be referred to as "Recipient ". NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows: ARTICLE1. DEFINITIONS As used in this Agreement, the following terms shall have the following meanings ascribed to them "Affiliate" shall mean any Person that directly or indirectly controls or is controlled by or is under common control with, or is managed by, the specified Person. For purposes of this definition only, "control" means (i) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50 %) of the stock or participating shares entitled to vote for the election of directors, and (ii) in the case of non - corporate entities, direct or indirect ownership of at least fifty percent (50 %) of the equity interest with the power to participate in the management and policies of such non - corporate entity. "FORCE MAJEURE EVENT" MEANS AN UNFORESEEN EVENT BEYOND THE REASONABLE CONTROL OF A PARTY. "Cable" shall mean all Provider fiber optic cable now or hereafter containing the Licensed Fiber(s). "Claims" shall mean causes of action, losses, claims, liabilities, costs (including reasonable attorneys' fees and related necessary legal costs), damages for injury to or death of Persons, impairment to the environment, and loss of or damage to property. "Costs" shall mean one hundred and fifteen percent (115 %) of all direct internal and third party costs incurred by Provider in performing the services or work and which it utilizes in billing third parties for reimbursable projects. "Imposition" shall mean all taxes, fees, levies, imposts, duties, charges or withholdings of any nature (including, without limitation, gross receipts taxes and franchises, license, and /or permit fees) together with any penalties, fines, assessments or interest thereon, arising out of the transactions contemplated by this Agreement and /or imposed upon the Licensed Fiber(s) by any federal, state, or local government or other public taxing authority of competent jurisdiction. "Person" shall mean any individual, partnership, corporation, limited liability company, joint venture, trust, business trust, cooperative or association, and the heirs, executors, administrators, legal representatives, successors and assigns of such Person where the context so admits. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 2 of 24 "Licensed Fiber(s)" shall mean the fibers in the number and of the type specified in Exhibit A along the System Route and licensed to Recipient. "Rights of Way" shall mean the land and other rights granted to Provider by a third party through or by way of the Underlying Rights. "Institutional Network" shall mean the Recipient's use of the Licensed Fibers and further subject to Exhibit A attached hereto. "Specifications" shall mean the specifications set forth in Exhibit B attached hereto with respect to the Licensed Fiber(s). "System" shall mean the fiber optic communication system along the System Route. "System Route" shall mean the route of the Licensed Fiber(s) set forth in Exhibit A. "Term" shall mean a time period of three (3) years from the Effective Date of this Agreement. Recipient shall have the right to renew this Agreement for up to two additional one year terms at the Parties mutual discretion. Recipient shall provide Provider with thirty (30) days written notice of its intent to renew and Provider's consent to such renewal. "Underlying Rights" shall mean all deeds, leases, easements, rights of way, licenses, franchises, permits and other rights, titles or interests pertaining to the underlying real property and /or rights -of -way over and /or within which the Licensed Fiber(s) shall be located, as are necessary for the construction, installation, operation, maintenance or repair of the System, including all uses of the System by Recipient hereunder. ARTICLE 2. GRANT OF LICENSE 2.1. Grant of License to Recipient. In exchange for the consideration referenced in Exhibit A, and subject to the conditions hereinafter set forth, Provider grants to Recipient a license to use the Licensed Fiber(s) for the Term ( "License "); Recipient acknowledges that this grant of License expressly excludes the grant by Provider to Recipient of any rights or interest in the Underlying Rights. Provider agrees to use commercially reasonable efforts to maintain all Underlying Rights through the Term. 2.3 Legal Title. Legal title to the System, including fiber and cable sheathing and any bridge attachments, conduits, brackets, insulators, fixtures, guy wires, anchors, splice boxes, fiber distribution centers and other hardware needed or used to fasten or support the Cable, shall remain with and be held by Provider. Neither anything contained in this Agreement, nor any use, however extended, of the Licensed Fiber(s), nor any placement of Recipient's facilities on or in the System shall create or vest (or be construed as creating or vesting) in Recipient any right, title or interest in or to any real or personal property owned by Provider other than the rights specified herein with regard to the Licensed Fiber(s). 2.4 No Liens /Encumbrances. Recipient shall keep the System free from any encumbrances, liens, rights or claims of any third party attributable to Recipient that adversely affects or impairs directly or indirectly Provider's exclusive ownership and use of the System. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 3 of 24 2.5 Permits; Physical Plant and Required Rights. Provider shall obtain (and cause to remain effective throughout the Term) all Underlying Rights. Notwithstanding anything in this Agreement to the contrary, it is expressly understood that Recipient shall be solely responsible for compliance with all legal and regulatory requirements associated with its business, operation or use of the Licensed Fiber(s) including maintaining all required franchises, permits, authorizations, licenses, approvals or other consents (other than the Underlying Rights), and Provider shall have no responsibility or liability whatsoever in connection therewith, provided, however, that except for any increases in pole attachment rates that may be predicated, based upon, or caused by Recipient's use of the Licensed Fiber(s), which Provider shall be entitled to pass through to Recipient and, subject to Section 5.1.1 herein, Recipient shall pay to Provider within forty -five (45) days of Recipient's receipt of an invoice therefor, Provider shall remain responsible for obtaining and maintaining during the Term for Recipient, at Provider's sole cost and expense, all Underlying Rights to freely use without additional permissions of any kind, the Licensed Fiber(s) to which Recipient is granted the License. ARTICLE3. ACCEPTANCE and MAINTENANCE 3.1 Maintenance. (a) Provider shall maintain and repair the Licensed Fiber(s) pursuant to the specifications set forth in Exhibit B so as to assure the continuing conformity of the Licensed Fiber(s) with their respective specifications. Notwithstanding any provision in this Agreement to the contrary, the Costs of procurement, installation, splicing, splice testing and other Costs associated with the replacement or restoration of the Cable for Provider facilities in excess of $10,000 for any event or series of closely related events shall be shared pro -rata among Provider and Recipient according to the total number of fibers each has /is using in the same route as the Cable which is to be restored or replaced provided that such restoration or repair is not the result of the negligence or willful misconduct of one of the parties hereto, in which case the damage- causing party shall bear the entire cost thereof (proportionate to such party's responsibility if both respective parties are at fault). Provider, at Recipient's sole expense and at Provider's then - prevailing rates, shall perform maintenance and repair necessitated by Recipient's negligence or willful misconduct or upon Recipient's elective maintenance or repair requests. For cases where pro -rata cost of repair /replacement of the Licensed Fiber(s) exceeds $25,000 unless the same was caused by the negligence or willful misconduct of the Recipient, in which case Recipient shall reimburse Provider for the entire cost thereof (proportionate to such Recipient's responsibility if other parties are at fault), Recipient may choose to not pay such expenses and consequently forfeit all rights to the Licensed Fiber(s) requiring replacement or restoration, and Provider shall have no obligations with respect to such affected Licensed Fiber(s). Recipient shall not be responsible for any maintenance or repair of any Provider equipment except as set forth above. (b) Provider shall respond to any interruption of service or failure of the Licensed Fiber(s) to operate in accordance with this Agreement in accordance with the procedures set forth in Exhibit C. (c) Work and associated costs of such work outside of that described herein shall be agreed to by the parties and documented in an Amendment to this Agreement (and signed by Recipient and Provider). (d) Provider shall be responsible for routine maintenance of Cable and costs thereof not specifically due to requirements of Recipient as set forth in Exhibit C, including Cable locates. City of Fort Worth Marcus Cable Assoaates, LLC Master Fiber Agreement Page 4 of 24 3.2 Relocation. If, (i) Provider is required by a governmental or other authority to relocate any portion of the System (including, without limitation, the grantor of the Underlying Rights if such relocation is not being required as a result of Provider's failure to observe and perform its obligations under such Underlying Rights or this Agreement), including any of the facilities used or required in providing the License in the Licensed Fiber(s), including any condemnation or taking under the power of eminent domain of all or any portion of the System, or (ii) with Recipient's concurrence upon Provider's request, Provider may relocate such portion of the System, then Provider shall give Recipient sixty (60) days prior notice of any such relocation, if possible, and shall proceed with such relocation, including, but not limited to, the right to determine the extent of, the timing of, and methods to be used for such relocation; provided that any such relocation shall entail construction and testing in accordance with the Specifications and requirements set forth herein. Provider shalt deliver to Recipient updated as- builts or building plans, as applicable, with respect to any relocated facilities not later than one hundred eighty (180) days following the completion of such relocation. The cost of any relocation not reimbursed by such governmental or other authority shall be allocated pro -rata pursuant to Section 3.1(a) unless the allocated pro rata costs of such relocation exceed $10,000.00, in which case Recipient shalt have the right to elect in its sole discretion not pay such expenses within six (6) months after having received notice from Provider of such planned relocation and consequently forfeit all rights to the Licensed Fiber(s) to be relocated. ARTICLE4. DELIVERY, USE AND CONNECTION 4.1 Access. Provider will provide Recipient with access to the Licensed Fiber(s) at such hand holes and splice points with existing slack coils on the System Route ( "Connecting Points ") as reasonably requested by Recipient, subject only to the requirements in the Underlying Rights and provided that such access points do not materially interfere with any Provider facilities. For Licensed Fiber(s) terminating on and /or traversing across Recipient's (or its contractor's or agent's) property, Recipient will provide Provider with access to the Licensed Fiber(s) at any point along the fiber up to and including the splice point and /or demarcation. 4.2 Use of Facilities. Recipient may use the Licensed Fiber(s) for its internal uses to provide any lawful communications services provided, however, that Recipient shall not resell, re- License, or permit a third party to use or otherwise convey in any manner, directly or indirectly, the Licensed Fiber(s) it receives herein. Recipient may not use the Licensed Fiber(s) for any non -City, revenue producing, competitive purposes. Recipient shall not lease or sell any portion of the Licensed Fiber(s), including any bandwidth provided by it, nor engage or allow any party authorized by Recipient to engage in any activities that would result in business competition between the Recipient and Provider, or that may result in loss of business opportunity for Provider. Violation of any part of this section is grounds for immediate termination if the Recipient's right to use the Licensed Fiber(s) and allows Provider to exercise other rights or remedies Provider may have under the law. 4.3 Connection. (a) If Recipient desires to connect other fiber optic cables to the Licensed Fiber(s) or create connections with buildings or other structures along the System Route, Recipient shall make known such details, in writing, to Provider and Provider will then have the option to agree to such connections. Should Provider agree, Provider will cooperate with Recipient to the extent necessary to enable Recipient to acquire rights to connect to the Licensed Fiber(s) via available Rights of Way and Provider will place connecting facilities on the Rights of Way between the Licensed Fiber(s) and such adjoining properties, subject to (i) the ability to do so pursuant to the Underlying Rights and (ii) Recipient's agreement to pay any incremental increase in Costs arising from or otherwise due to Recipient's proposed use thereof. Such additional connections activity shall be at Recipient's sole cost and expense (including Costs incurred by Provider in providing oversight of any contractors excavating on the Rights of Way or near the Cable to make such connection). Each connection to the Licensed Fiber(s) requiring a Cable to be connected will be performed by Provider at Recipient's sole expense. In order to schedule a connection of this type, Recipient shall contact Provider to undertake the work at least fourteen (14) days in advance of the date the connection is requested to be completed. Such work will be at times mutually agreed to by the parties or as otherwise agreed to in writing for specific projects. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 5 of 24 (b) If Recipient desires to construct fiber to connect to the Licensed Fiber(s) and Provider has agreed to such connection in writing and subject to (i) restrictions affecting the same as mandated by the Underlying Rights and Provider's advance written approval thereof, not to be unreasonably withheld, Provider will allow Recipient or Recipient's agent provided they meet Provider's reasonable contractor qualification standards to perform such construction, provided, however, that an agent of Provider is present during such construction (and Recipient pays for the cost of such Provider agent overseeing such construction on the Rights of Way or near the Cable) and that agent shall have the absolute ability to direct the activities of that contractor when performing construction activities on the Underlying Rights or in areas adjacent to the facilities of Provider. ARTICLES. CONSIDERATION 5.1 License Fee. The consideration paid by Recipient to Provider for the grant of the License to the Licensed Fiber(s) is set forth in Exhibit A. All fees shall be due and payable within thirty (30) days of Recipient's receipt of invoice, receipt shall be considered within 5 business days of U.S. postmark date. 5.1.1 Non - appropriations – All payments for expenses, fees, or other expenditures shall be subject to Recipient's appropriation of funding to meet such financial obligations. In the event no funds or insufficient funds are appropriated by the Recipient in any fiscal period for any payments due hereunder, Recipient will notify Provider of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the Recipient of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 5.2 Late Payments. Past due amounts bear interest at a rate of one and one half percent (1.5 %) per month beginning from the date first due until paid in full. A past due payment shall be (i) any payment received after the period specified herein for such payment, and /or (ii) any payment of disputed amounts that is received more than forty —five days after the date such payment is determined to have been due in a final resolution of such dispute in accordance with Article 11 hereof. 5.3 Fees. In the event Charter's costs increase in providing service due to reasons beyond Charter's control, Charter shall give written notice to Customer not less than thirty (30) days in advance of when such increase is to take effect. Any increase in fees shall be subject to Section 5. 1.1 above. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 6 of 24 ARTICLE6. WARRANTIES, RISK ALLOCATION, INDEMNIFICATION AND REPRESENTATIONS 6.1 Disclaimer of Warranties. Except as may be otherwise provided herein, Provider disclaims any and all warranties, express or implied, as to the use or condition of the Licensed Fiber(s) or any other matter hereunder, including without limitation warranties of merchantability, workmanship, quality or fitness for a particular purpose and Recipient agrees to look solely to the manufacturer of all materials and equipment subject to the grant of any license or other rights to Recipient hereunder for any recovery for Claims of Recipient relating to such materials and equipment. Provider shall provide reasonable assistance to Recipient in good faith in the event a warranty claim arises with the manufacturer of the materials or equipment. 6.2 Warranty Acknowledgment. By executing this Agreement, Recipient acknowledges that, except as may be otherwise provided herein, Provider has made no warranty or representation with respect to the Licensed Fiber(s) and Recipient agrees to assume all risk of conducting Recipient's activities using the Licensed Fiber(s) or associated services. 6.3 Third Party Warranties. In the event any maintenance or repairs to facilities provided to Recipient are required as a result of a breach of any warranty made by any third party manufacturers, contractors or vendors and such breach of a warranty had a material adverse affect on Recipient's use of the Licensed Fiber(s), Provider shall share with Recipient on an equitable basis any recovery from any such manufacturers, contractors or vendors should Provider elect to pursue the same in its reasonable discretion. 6.4 Insurance. Within 30 days of execution of this Agreement, the City shall provide Charter with a letter of self insurance. 6.5 Provider's Indemnity. Provider shall indemnify and hold harmless Recipient, any corporation, partnership, limited liability company or other legal entity affiliated with Recipient and any stockholder, partner, member, director, officer, employee or agent of any of them, in his, her or its capacity as such, from and against all Claims brought by third parties which any such Indemnified Party (defined below) is required to pay or to assume to the full extent that such have resulted from Provider's breach of any duty or obligation imposed by the provisions of this Agreement or applicable by law, including statutes, ordinances, regulations, orders, decrees, judgments and the law of torts, up to and including damage to tangible property and personal injury, including death (including without limitation negligence, gross negligence, strict liability, or willful misconduct). City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 7 of 24 6.6 Recipient's Indemnity. To the extent not prohibited by law, Recipient shall indemnify and hold harmless Provider, any corporation, partnership, limited liability company or other legal entity affiliated with Provider and any stockholder, partner, member, director, officer, employee or agent of any of them, in his, her or its capacity as such, from and against all Claims brought by third parties which any such Indemnified Party (defined below) is required to pay or to assume to the full extent that such have resulted from (i) Recipient's breach of any duty or obligation imposed by the provisions of this Agreement or by the provisions of applicable law, including without limitation that of applicable statutes, ordinances, regulations, orders, decrees, judgments, the law of torts, up to an including damage to tangible property and personal injury, including death (including without limitation negligence, gross negligence, strict liability, or willful misconduct) or (ii) the violation, misappropriation, or infringement of /upon the intellectual property rights (including without limitation patent, copyright, and /or trademark rights) of any third party by Recipient or any Recipient downstream customer, licensee, or otherwise an end user of the Licensed Fiber(s) gaining access thereto or using capacity thereof through facilities controlled or operated by Recipient (with or without Recipient's authorization.) Notwithstanding the foregoing, both Parties acknowledge that the Texas Constitution prohibits Recipient from agreeing to or accepting any obligations of indemnity or any obligations that would create a future debt unless Recipient has first established a sinking fund to meet such obligations, and the Parties understand, agree and acknowledge that Recipient has not and will not establish any sinking fund to meet any obligations of indemnity or future debt under this Agreement. 6.7 Notice and Defense of Third -Party Actions. Each Person entitled to indemnification under this Article 6 (an "Indemnified Party ") shall give prompt written notice to each Person that is obligated to provide such indemnification (an "Indemnifying Party ") of the commencement or assertion of any Claim by a third party (collectively, a "third -party action ") in respect of which an Indemnified Party will seek indemnification hereunder, which notice shall state, to the extent known to the Indemnified Party, the basis on which the claim for indemnification is made, the facts giving rise to or the alleged basis of the third -party action, and the amount (which may be estimated) of liability asserted by reason of the Claim; such notice shall also include a copy of the document (if any) by or in which the third -party action is commenced or asserted. Any failure so to notify the Indemnifying Party shall not relieve it from any obligation that it may have to the Indemnified Party under this Article 6 unless the failure to give such notice materially and adversely prejudices the Indemnifying Party and then only to the extent of such prejudice. The Indemnifying Party shall have the right to assume control of the defense of or settle or otherwise dispose of such third -party action on such terms as the Indemnifying Party deems appropriate; provided, however, that: (a) The Indemnified Party shall be entitled, at its own expense, and without unreasonable interference with the actions of the Indemnifying Party, to participate in the defense of third -party actions; (b) The Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement or compromise requiring the admission or any acknowledgment of facts or any liability in respect thereof or the affirmative obligation of the Indemnified Party, which consent shall not be unreasonably withheld; (c) No Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by each claimant or plaintiff to each Indemnified Party of a release from all liability in respect of such third -party action; and (d) The Indemnifying Party shall not be entitled to control (but shall be entitled to participate at its own expense in the defense of) and the Indemnified Party shall be entitled to have sole control over, the defense or settlement, compromise, admission or other acknowledgment of any third -party action (i) as to which the Indemnifying Party fails to assume the defense within a reasonable length of time or (ii) to the extent the third -party action seeks an order, injunction or other equitable relief against the Indemnified Party which, if successful, would have a material adverse effect on the business, financial condition, operations or properties of the Indemnified Party; provided, however, that the Indemnified Party shall make no settlement or compromise requiring the admission or other acknowledgment which would give rise to liability on the part of the Indemnifying Party or affirmative obligation of the Indemnified Party City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 8 of 24 without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. 6.8 Cooperation. The Parties and their Affiliates shall cooperate with each other in the defense of any third -party action that is the subject of this Article 6 and shall furnish each other all such further information that they have the right and power to furnish as may reasonably be necessary to defend such third -party action. 6.9 Representations and Warranties. In addition to any other representations and warranties contained in this Agreement, each Party hereto represents and warrants to the other that: (a) It has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (b) It has taken all requisite corporate or company action to approve the execution, delivery and performance of this Agreement; (c) This Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms; and (d) Its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes, or court orders of any local, state or federal government agency, court, or body. ARTICLE7. DELAYS AND LIMITATION OF LIABILITY 7.1 Outage Liability; Restoration Delays. Under no circumstances shall either Provider or Recipient ever be liable for any delay in restoring any service or Licensed Fiber(s) or any operational aspect of the System containing such Licensed Fiber(s) which has been subjected to an outage, interference or interruption, unless and to the limited extent such outage, interference or interruption arises out of the gross negligence or willful misconduct of Provider or Recipient, or unless and to the limited extent Provider's delay in restoration arises out of its gross negligence or willful misconduct. 7.2 Limitation of Liability. No claims for damages with respect to this Agreement may be made more than two (2) years after the date that the event giving rise to such claim is known or reasonably should have been known to the person or entity making such claim; and no claim for indemnity under the provisions of Section 6 hereof may be made more than two (2) years after the first notice of any claim received by the Party claiming under such indemnity provision. (a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR THE OTHER PARTY'S END -USERS FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND /OR FAILURES), UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. (b) THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION AND CLAIMS SUFFERED BY THE OTHER, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, BUT SHALL NOT APPLY WITH RESPECT TO: (a) breaches of confidentiality, (b) indemnification obligations set forth in this Agreement, (c) injury or death to an individual, (d) grossly negligent conduct, or (e) willful misconduct. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 9 of 24 ARTICLE& CONFIDENTIALITY 8.1 Confidential Information. "Confidential Information" shall mean any and all information provided by one Party to this Agreement to the other Party for use in connection with the investigation, negotiation or performance of this Agreement. "Confidential Information" excludes any information that (i) the subject Party notifies the recipient in writing is not confidential, (ii) is or becomes available to the recipient on a non - confidential basis from a source other than the subject Party, any Person acting on behalf of the subject Party, or any Person who has confidentiality obligations (whether to the subject Party or otherwise) provided that such disclosure was not itself a breach of a confidentiality obligation running to the subject Party, (iii) is or becomes generally available to the public other than as a result of a disclosure by the recipient or any Person to whom such recipient disclosed the information, or (iv) is required to be disclosed by law, rule, regulation or court order, specifically, requirements under Chapter 552 of the Texas Government Code, the Texas Public Information Act, subject to the provisions of Section 8.3 hereof. . Confidential Information may take the form of documentation, drawings, specifications, software, technical or engineering data, business information, the identity of Parties to a possible business transaction, the status and existence of discussions or negotiations among the Parties, the terms and conditions of any business transaction, plans and proposals relating thereto, and information concerning a Party's financial condition, results of operations, financial forecasts and projections, capital projects, research and development, design plans, management plans, business plans, marketing plans, and feasibility plans, markets, business, products, services, contracts, customers, suppliers, trade secrets, operating procedures, material and labor costs, sources and requirements, and technological means, methods and processes, as well as every study, report, analysis, notation, summary, synopsis, compilation and other document (collectively, "Work Product ") containing, analyzing or otherwise reflecting any Confidential Information described above, and may be communicated orally, in writing, by electronic or magnetic media, by visual observation, or by other means. 8.2 Confidentiality. Each Party agrees to provide to the other Party such information (including Confidential Information) as shall be necessary to permit the performance of their respective obligations hereunder provided that in the event a Party is not at liberty to disclose such necessary information due to a confidentiality obligation running to a third party, the party to whom disclosure is not permitted but is otherwise necessary to permit the performance of its respective obligations hereunder, shall have the right to terminate the affected fibers in Exhibit A. Except as otherwise provided in Section 8.3, neither Party hereto will, without the prior written consent of the Party providing such Confidential Information, (i) use any portion of such Confidential Information for any purpose other than performance pursuant to this Agreement, or (ii) disclose any portion of such Confidential Information to any persons or entities other than the Affiliates of such Party and to the officers, employees and contractors of such Party who reasonably need to have access to such Confidential Information for purposes of performance under this Agreement and have agreed to comply with confidentiality terms no less stringent that those set forth in this Agreement in order to preserve the disclosing party's expectation of confidentiality hereunder. Each recipient Party agrees to guard Confidential Information utilizing the same degree of care utilized by such recipient Party in protecting its own Confidential Information, but in any event not less than a reasonable degree of care. The obligations of a recipient Party with respect to Confidential Information shall remain in effect during and after the Term of this Agreement. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 10 of 24 8.3 Permitted Use. Confidential Information provided by Provider may be used by Recipient in connection with Recipient's use of the Licensed Fiber(s). If the receiving Party is compelled to disclose Confidential Information through lawful process in judicial or administrative proceedings or otherwise by law (other than under any securities laws and events covered by Section 8.5), the receiving Party shall, if possible, give written notice within a reasonable period of time to permit the disclosing Party the opportunity to seek suitable protective arrangements before the Confidential Information is disclosed, and the receiving Party shall cooperate fully in all reasonable respects with the disclosing Party's efforts to obtain such protective arrangements; provided, however, that if the receiving Party would otherwise be required to disclose Confidential Information under any securities law, the receiving Party shall use its reasonable efforts to take such steps as are available under such law (such as by providing a summary or synopsis) to avoid disclosure of such Confidential Information. 8.4 Return or Destruction. Confidential Information shall remain the property of the disclosing Party and shall, upon written request, if written or in other tangible form, including any copies thereof, be promptly returned to the disclosing Party or, in the case of the recipient's Work Product, be promptly destroyed at the recipient's option, such destruction to be promptly certified in writing to the disclosing Party. 8.5 Required Disclosures. The provisions of this Article 8 shall not apply to reasonably necessary disclosures in or in connection with filings under any securities laws, regulatory filings or proceedings, financial disclosures which in the good faith judgment of the disclosing Party are required by law, disclosures required by court or tribunal or competent jurisdiction, or disclosures that may be reasonably necessary in connection with the performance or enforcement of this Agreement or any of the obligations hereof. Both Parties understand and acknowledge that upon final execution of this Agreement by both Parties, the terms and conditions herein become subject to release in accordance with Chapter 552 of the Texas Government Code, the Texas Public Information Act. ARTICLE9. PUBLICITY AND ADVERTISING Neither Party hereto shall use any advertising, sales promotions, or other publicity materials that use the other Party's logo, trademarks, or service marks without that Party's consent. ARTICLE10. FORCE MAJEURE Notwithstanding any other provision of this Agreement, the performance of the obligations set forth in this Agreement, other than obligations to pay money for services rendered (except as provided below), shall be suspended or excused in the event and only to the extent that such performance is prevented by an event of Force Majeure or its adverse effects. If the performance of a Party's obligations under this Agreement is suspended or excused by an event of Force Majeure or its adverse effects, such Party shall use commercially reasonable diligence to cause such event or effects to cease or be reduced. "Force Majeure" shall mean the occurrence or nonoccurrence of any act or event beyond the reasonable control of the Party relying thereon as justification for not performing an obligation or complying with any condition required of such Party pursuant to this Agreement, including, but not limited to, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority. The Party whose obligations are suspended or excused as described above shall, as soon as practicable, give written notice to the other Party specifying the nature and anticipated duration of the Force Majeure event and outlining its recover plan, if any. To the extent the Licensed Fiber(s) are unavailable for use due to a Force Majeure event and Provider's obligations are suspended in accordance herewith, then Recipient's obligation to pay for the Licensed Fiber(s) shall be suspended, on a pro -rata basis, during such time Provider's obligations are also suspended. Either Party may terminate the affected fibers in City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 11 of 24 Exhibit A if a Force Majeure event continues for more than one hundred eighty (180) days. In the event of such termination, Provider will reimburse Recipient a pro -rata amount of any pre -paid recurring fees for the services not received for the unexpired Term of the respective fibers in Exhibit A. ARTICLE11. DISPUTE RESOLUTION 11.1 Submission to Dispute Committee. Each Party to this Agreement agrees to use good faith efforts to negotiate and resolve any controversy or claim between the Parties hereto arising out of or relating to this Agreement or any breach thereof (hereinafter referred to as a "Dispute "). If a Dispute cannot be resolved through such efforts, then either Party may seek resolution of the Dispute by submitting such Dispute to a "Dispute Committee ", consisting of one designee of each Party who is fully authorized to make binding decisions on behalf of that entity, by a written submission delivered to the other Party. The Dispute Committee shall consider the Dispute within the thirty (30) day period following the date of such submission. If the Dispute Committee is unable to resolve the matter with thirty (30) days, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute, subject to any other rights or remedies herein. 11.2 Other Remedies. It is not the intention of the Parties that relief sought through preliminary injunctions, temporary restraining orders or other similar temporary procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution, shall be in lieu of, or cause substantial delay to, any arbitration proceeding to which the parties may agree as a means of resolving any dispute. ARTICLE 12. TAXES 12.1 Taxes. Recipient is a tax exempt entity and shall not be liable for any taxes pursuant to this Agreement. Recipient shall provide Provider with sufficient evidence of such tax exemption upon request satisfactory to Provider. ARTICLE 13. TERMINATION AND DEFAULT 13.1 Termination. This Agreement with respect to the fibers in Exhibit A shall automatically terminate at the end of the Term, unless renewed by the Parties' agreement according to the definition of Term in accordance with this Agreement. Upon such termination, Provider shall owe Recipient no additional duties or consideration with respect to the respective Licensed Fiber(s) or Recipient Building Spaces including no longer having the obligation to maintain the Underlying Rights to provide the right of Recipient to hold a License to the Licensed Fiber(s) or use or maintain the Licensed Fiber(s). To the extent that Provider has title to the Licensed Fiber(s) and Recipient continues to use the Licensed Fiber(s) after the termination of this Agreement, and to the extent not prohibited by law and subject to Section 6.6 herein, Recipient shall indemnify, defend and hold Provider harmless from and against all Claims by third parties arising from or related to such continued use. 13.2 Default. A Party shall be in default under this Agreement upon the occurrence of an event in which such Party has failed to comply with any of its obligations as set forth in this Agreement (each an Event of Default; see Section 13.2 (b) below). (a) Upon the occurrence of an Event of Default, other than an Event of Default based upon non- payment of any undisputed amounts owed under this Agreement, the defaulting Party shall have thirty (30) days after receipt of a notice of the Event of Default to cure the Event of Default ( "cure period ") City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 12 of 24 (unless the Event of Default is waived in writing by the non - defaulting party within the thirty (30) day period). However, in such cases where an Event of Default cannot reasonably be cured within such thirty (30) day period, the Parties may mutually agree upon an extended period of time as may be necessary to complete such curing. Notwithstanding the foregoing, in no event shall the cure period extend beyond ninety (90) days, in which case the non - defaulting party shall have the right to terminate this Agreement without further liability at the expiration of such 90 day - period. (b) Events of Default shall include, but not be limited to, the making by a Party of a general assignment for the benefit of its creditors, the filing of a voluntary petition in bankruptcy or the filing of a petition in bankruptcy or other insolvency protection against a Party which is not dismissed within ninety (90) days thereafter, or the filing by a Party of any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution, or similar relief (collectively, an "Insolvency Default "). (c) Any Event of Default by a Party may be waived under the terms of this Agreement at the other Party's sole option. Upon the failure by a Party to timely cure any such Event of Default after written notice thereof, the other Party may (i) take such action as it determines, in its sole discretion, to be necessary to correct the Event of Default (except that neither Party shall perform any work on the other Party's fiber /network/system without the other Party's explicit consent), (ii) terminate this Agreement, and (iii) pursue any legal remedies it may have under applicable law or principles of equity relating to such Event of Default. When a party fails to pay any undisputed amounts owed hereunder by their due date, an Event of Default shall occur if the party owing such amount fails to cure same within ten (10) days after receipt of written notice thereof. ARTICLE 14. GENERAL PROVISIONS 14.1 Amendments. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by both Parties. 14.2 Assignment. Neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party; provided however, that any Party may assign its rights or obligations hereunder pursuant to a merger or sale of all or substantially all of its assets or its underlying System to an Affiliate, in each said instance upon providing written notice to, but without the consent of, the other Party, and the use restrictions of Section 4.3 and all other terms herein shall apply to any assignee. 14.3 Limitation of Benefits. It is the explicit intention of the Parties hereto that no Person other than the Parties hereto is or shall be entitled to bring any action to enforce any provision of this Agreement against any Party hereto, and that covenants, undertakings, and agreements set forth in this Agreement shall be enforceable only by the Parties hereto or their respective successors or permitted assigns. 14.4 Notices. Unless otherwise provided in this Agreement, all notices, demands, requests, approvals or other communications which may be or are required to be given, served or sent pursuant to this Agreement shall be in writing and shall be mailed by registered or certified mail, return receipt requested, postage prepaid, or delivered by nationally recognized overnight courier addressed as follows: If to Recipient: City of Fort Worth Attn: Pete Anderson Information Technology Solutions Director 1000 Throckmorton Street Fort Worth, Texas 76102 City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 13 of 24 with a copy to: City Attorney At the same address If to Provider: Charter Business Attn: Sales Manager 15100 Trinity Blvd. #500 Fort Worth, TX 76155 817.298.3564 with copies to: Charter Communications Attn: Contracts Manager — CB Corp. 12405 Powerscourt Drive St. Louis, MO 63131 Phone: 314 - 288 -3470 Charter Communications Attn: Legal Department - Operations 12405 Powerscourt Drive St. Louis, MO 63131 Phone: 314 - 543 -2415 Each Party may designate by notice in writing a new address to which any notice, demand, request, report, approval or communication may thereafter be so given, served or sent. Each notice, demand, request, report, approval or communication which shall be mailed or delivered in the manner described above, shall be deemed sufficiently given, served, sent or received for all purposes at such time as it is delivered to the addressee (with the return receipt or the delivery receipt being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation. 14.5 Severability. If any part of any provision of this Agreement or any other agreement, document or writing given pursuant to or in connection with this Agreement shall be held to be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity or enforceability only, without in any way affecting the remaining parts of said provision or the remaining provisions of said agreement; provided, however, that if any such ineffectiveness or unenforceability of any provision of this Agreement, in the good faith judgment of either Party, renders the benefits to such Party of this Agreement as a whole uneconomical in light of the obligations of such Party under this Agreement as a whole, then Provider and Recipient shall negotiate in good faith in an effort to restore insofar as possible the economic benefits of the transaction to the Parties. 14.6 Independent Contractors. In all matters pertaining to this Agreement, the relationship of Provider and Recipient shall be that of independent contractors, and neither Provider nor Recipient shall make any representations or warranties that their relationship is other than that of independent contractors. This Agreement is not intended to create nor shall it be construed to create any partnership, joint venture, employment or agency relationship between Provider and Recipient; and no Party hereto shall be liable for the payment or performance of any debts, obligations, or liabilities of the other Party, unless expressly assumed in writing herein or otherwise. Each Party retains full control over the employment, direction, compensation and discharges of its employees, and will be solely responsible for all compensation of such employees, including social security, tax withholding and worker's compensation responsibilities. 14.7 Labor Relations. Intentionally Omitted City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 14 of 24 14.8 Exercise of Rights. No failure or delay on the part of either Party hereto in exercising any right, power or privilege hereunder and no course of dealing between the Parties shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. 14.9 Additional Actions and Documents. Each of the Parties hereto hereby agrees to take or cause to be taken such further actions, to execute, acknowledge, deliver and file or cause to be executed, acknowledged, delivered and filed such further documents and instruments, and to use its commercially reasonable efforts to obtain such consents, as may be necessary or as may be reasonably requested in order to fully effectuate the purposes, terms and conditions of this Agreement, whether at or after the execution of this Agreement. 14.10 Survival. The obligations of the Parties under Article 6 (Warranties, Risk Allocation And Indemnification), Article 7 (Delays and Limitation of Liability), Article 8 (Confidentiality), Article 9 (Publicity and Advertising), Article 11 (Dispute Resolution), Article 12 (Taxes), Section 14.5 (Severability), and Section 14.13 (Governing Law) shall survive any termination of this Agreement. 14.11 Headings. Article headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof. 14.12 Incorporation of Exhibits. The Exhibits referenced in and attached to this Agreement shall be deemed an integral part hereof to the same extent as if written at length herein. 14.13 Governing Law. This Agreement and each of its provisions shall be governed by and construed and interpreted according to the substantive laws of the State of Texas without regard to its conflicts of law or choice of law provisions. 14.14 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original but all of which taken together shall constitute one and the same instrument. 14.15 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the transaction contemplated herein, and supersedes all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein. 14.16 Performance. Except as specifically set forth herein, for the purpose of this Agreement, the normal standards of performance within the communications industry in the relevant market shall be the measure of whether a Party's performance is reasonable under the circumstances and in accordance with generally accepted industry standards of performance for the required level of skill necessary to perform the perspective duty or obligation. 14.17 No Third Party Beneficiaries. The Parties agree that the terms of this Agreement and the Parties' respective performance of obligations hereunder are not intended to benefit any person or entity not a party to this Agreement, that the consideration provided by each under this Agreement only runs to the respective Parties hereto, and that no person or entity not a Party to this Agreement shall have any rights hereunder nor the right to require the performance hereunder by either of the respective Parties hereto. [SIGNATURE PAGE FOLLOWS] City of Fort Worth Marcus Cable Assoaates. LLC Master Fiber Agreement Page 15 of 24 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the last date written below. PROVIDER: Marcus Cable Associates, LLC By: Charter Communi ations, Inc., i Manager B: V Name: JUI E. Stark :cc resident er usiness Title: Vice President Date: 42 � RECIPIENT: City of Fort Worth 1 B :� NaML51n Alanis Title: Assistant City Manager Date:I I l l ATTEST: oa" OF Aq� ATTEST- B y: �, fd I��p ,� OpG°OUpOV i`uJ 1�w if e C� �r' Name: d *a oe: �L� I�tc�i1 o 0 0 � Title: A` °l 0 0 +p jr Secretary: °00000 ° °G ICY ICY APPROVED TO F RM AND LEG LITY: B Maleshia B. Farmer Senior Assistant City Attorney Contract Authorization: M &C: Date Approved: 112 43 ` OFFICIAL RECORD CITY SECRETARY FT WORTH, TX City of Fort Worth Marcus Cable Assouates, LLC Master Fiber Agreement Page 16 of 24 EXHIBIT A This Exhibit A represents those Licensed Fibers which Provider has granted specific license for use to Recipient and the monthly fees to be paid by Recipient to Provider in consideration of such license. System A -Loc License License Term Route Delivery Term (if Renewals (if Length Date applicable applicable) feet Strand- Feet Costl Foot Total Link Cost 1'552,,58 June 21, 60 1000 Throckmorton SL 3.94 2011 Months N/A feet $2,08.158 2 City Services 1013 Cherry Street City of Fort Worth Pricing For Leased Fiber A -Loc Z -Loc M of Strand s * Name Location Kaltea Location Dist- Miles I Dist- Feet Strand- Feet Costl Foot Total Link Cost 1 Botanic Gardens 3220 Botanic Garden Blvd Citj Hal 1000 Throckmorton SL 3.94 20,822 6 124,929 $0.02 $2,08.158 2 City Services 1013 Cherry Street Cito Had 1000 Throokmorton St 0.44 2,339 6 14.036 $0.02 $280.73 4 Cjt§ Services 2201 W. Daggett City Had 1000 Throckmorton St 2.26 11,927 6 7062 20.02 $1.431.23 5 Fire Station 42 715 Tesas City Hal 1000 Throokmorton SL 0.43 2,293 6 13,759 $0.02 75.18 6 Holly Water Treatment 150011h Avenue City Hal 1000 Tlwookmorton St 2.54 13,419 6 80,514 $0.02 SL610.28 6 ITlTelecom 1515116 Avenue City Hal I 1000 71vockmorton St 2.35 12,416 6 74,498 1 $0.02 $1,489.96 7A POIFire Comm Center 3000 Bolt Street City Hal 1000 Throckmorton St 8.14 42,967 6 257,802 50.02 1 $5,1%.05 78 PD1FIre Comm Center 3000 Bolt Street City Hal 1100 Thockmorton SL 7.54 39,821 6 238.928 $0.02 $4,778.55 8 PcicelFire TtrainiN 1000 Calvert City Hal 1000 Throckmorton SL 1.86 1 9,825 6 58,949 $0.02 $1,178.98 9 Polices West Division 3525 Mr uita cit, Hal 1000 Throckmorton St 7.14 37,679 8 301,434 $0.02 $6,028.68 10 Will Rogers 3401 W. Lancaster city Hal 1000 Throokmorton St 325 17,175 6 W3 049 $0.02 $2,060.98 11 Fire Equipment 2920 W. Bok Street Ave POIFke Comm Center 30M Bok Street 0.19 1,008 6 6,048 $0.02 5120.96 12 James Ave Center 5001 Janes Ave PDIFlre Comm Cents 3000 Bok Street 1.90 10,007 2 20,013 $0.02 $400.26 13 La Grand Plaza 4200 S. Freeway PDIFwe Comm Cent 3000 Bolt Street 3.01 15,867 6 95,199 $0.02 $1,803.99 14 Police South Division 3128 Bolt Street F'DIFke Comm Gnt 3000 Bok Street 0.18 971 6 5,828 50.02 $116.55 15 NPD 8 7650 McCart E u errs SerWces 4100 Columbus Tral 0.65 3,427 2 1 6,854 50.02 137.09 16 E services 4100 Coknibus Tral La Grand Plaza 4200 S. Fr 7.50 39,589 2 79,178 0.02 583.57 Totals: 1 53 -32 1 281.552 1 9 11,552,5801 1.552.580 $0.02 $31LOS1.61 City of Ft Worth Pricieg for Fiber Maintenance A -Loc ZAAX k of Strand * llama Location Name Laytlpa Dist- Miles Dist- Feet Strand. Feet Costl Foot Total Link Cost 1 Botanic Gardens 3220 Botanic Garden Ely Hall 1000 Throckmorton SL 3.94 20,822 6 124,929 $0.0035 $437.25 2 City Services 1013 Cherry Street City Hap 1000 Throckmorton SL 0.44 2,339 6 14,036 $0.0035 $49.13 4 City Services 2201 W. DMgett CRI Hal 1000 Throokmorton SL 2.26 11,927 6 7062 $0.0035 $260.47 5 Fire Station k2 715 Tomas Citj Hai 1000 Throckmorton St 0.43 2,293 6 13,759 $0.0035 $48.16 6 Holly Water Treatment 150011th Avenue City Hai 1000 Throokmorton St. 2.54 13,419 6 80,514 $0.0035 $281.80 6 ITITelecom 151511hAvenue City Hai 1000 Throokmorton St 2.36 12,416 1 6 74,498 $0.0036 $260.74 7A PDIFlre Comm Center 3000 Bok Street City Hai 1000 Thookmaton SL 8.14 42.967 6 1 257,802 20.0035 $90231 78 PDIFire Comm Center 3000 Bolt Street City Hap 1000 Throckmorton SL 7.54 39,821 6 238,928 $0.0035 $836.25 8 PolicelFire Ttraining 1000 Calvert Cits Hall 1700 Throokmorton SL 1.86 9,825 6 58,949 $0.0035 $206.32 9 Poices West Division 3525 Mar uita City Hal 1000 Throckmorton SL 7.14 37,679 8 301,434 $0.0035 $1,055.02 10 W81 Rogers 3401 W. Lancaster Citj Hai 1000 Throokmorton SL 3.25 17,175 6 103,049 $0.0035 $360.67 11 Fire Equipment 2920 W. Bolt Street Ave PDIFire Comm Comm 3000 Bok Street 0.19 t008 6 6,048 $0.0035 221.17 12 James Ave Center 5001 James Ave PDIFk# Comm CwR21 3000 Bok Street 1 1.90 10,007 2 20,013 $0.0035 $70.05 13 La Grand Plaza 4200 S. Freeway PDIFke Comm Cant 3000 Bok Street 3.01 15,867 6 95,199 0.0035 333.20 14 Police South Division 3128 Bolt Street PDIF" Comm Cant 3000 Bok Street 0.16 971 6 5 626 0.0035 $20.40 15 NPD 8 7650 McCrt E Services 4100 Coksnbvs Tral 0.65 1 3,427 1 2 6,854 1 12 .0035 $23.99 16 Services 4100 Cokwnbus Tral La Grand Plaza 4200 S. Frew 1 7.50 39,589 2 79,178 50.0035 $277.12 Totals: 53.32 1 281.552 1 92 1.552.580 .0035 1 M434.83 The difference in price between Charters' pricing for Leased Fiber per month at $31,051.61 and the pricing for Charter's Fiber maintenance at $ 5434.03 represents a discount to you of 83 %. This discount reduces your monthly rate by $25,617.58. City of Fort Worth Marcus Cable Associates. LLC Master Fiber Agreement Page 17 of 24 Consideration Paid for Fiber: Payment Amount: $ 5,434.03 per month Installation: $0.00 Payment Schedule: monthly Provider Marcus Cable Associates, LLC Charter Communi atio s, Inc., its Manager B Name: j4I TR g -rk Title: Yc,� president Charter Business Recipient City of Fort Worth By: aL--- L) Name: Title: Date: /O)Izy —/z Date: APPROVED AS TO FORM AND LEGALITY: S Assistant City A torney OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 18 of 24 EXHIBIT B CONSTRUCTION & FIBER SPECIFICATIONS A. CONSTRUCTION SPECIFICATIONS [RESERVED] B. FIBER SPECIFICATIONS OPTICAL SPECIFICATIONS Attenuation Uncabled Fiber Attenuation Cells Wavelength nm Attenuation Cells dB /km Premium Standard 1310 <0.35 <0.40 1550 <0.25 <_0.30 Attenuation vs. Wavelength Range (nm) Ref. (nm) Max Increase a dB /km 1285-1330 1310 0.05 1525-1575 1550 0.05 Attenuation With Bending Mandrel Diameter mm Number of Turns Wavelengt h nm Induced Attenuation dB 32 1 1550 < 0.50 75 100 1310 < 0.05 75 100 1550 < 0.10 Point Discontinuity No point discontinuity greater than 0.10 dB at either 1310 nm or 1550 nm. The attenuation in a given wavelength range does not exceed the attenuation of the reference wavelength a, by more than the value a The induced attenuation due to fiber wrapped around a mandrel of a specified diameter. Cable Cutoff Wavelength (Xccf) Mode -Field Diameter a,ccf < 1260 nm 9.30 +/- 0.50 pm at 1310 nm 10.50 +/- 1.00 pm at 1550 nm Dispersion Zero Dispersion Wavelength (Ao): 1301.5 nm <_ ,\o <_ 1321.5 nm Zero Dispersion Slope (So): <_ 0.092 ps /(nm2 • km) _ Fiber Polarization Mode Dispersion Coefficient (PMD): <_ 0.5 psN km Dispersion Calculation City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 19 of 24 SO _ k0 4 Dispersion= D (k): 4 x3 ps /(nm * km), for 1200 nm < k:5 1600 nm (k = Operating Wavelength) ENVIRONMENTAL SPECIFICATION *reference temperature = +23 °C DIMENSIONAL SPECIFICATIONS Standard Length (km /reel): 2.2 — 25.2 *longer spliced lengths available at a premium. Operating Temperature Range -60° C to +85° C Glass Geometry Coating Geometry Fiber Curl: >_ 4.0 m radius of curvature Coating Diameter: 245 ± 10 pm Cladding Diameter: 125.0 ± 1.0 pm Coating — Cladding Concentricity < 12 pm Core -Clad Concentricity: <_ 0.6 pm Cladding Non - Circularity: <_ 1.0% Defined as: [ Min. C 1 _ iq Diameter ] x 100 Max. Cladding Diameter MECHANICAL SPECIFICATIONS Proof Test: The entire length of fiber is subjected to a tensile proof stress >_ 100 kpsi (0.7 GN /m2) *. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 20 of 24 Induced Environmental Test Attenuation d6 /km 1310 nm 1550 nm Condition Temperature Dependence <_0.05 <_0.05 -60° C to +85° C* Temperature- Humidity Cycling <_0.05 <_0.05 10° C to +85 0C *, up to 98% RH Water Immersion, 23 °C <0.05 <_0.05 Heat Aging, 85 °C <_0.05 <_0.05 *reference temperature = +23 °C DIMENSIONAL SPECIFICATIONS Standard Length (km /reel): 2.2 — 25.2 *longer spliced lengths available at a premium. Operating Temperature Range -60° C to +85° C Glass Geometry Coating Geometry Fiber Curl: >_ 4.0 m radius of curvature Coating Diameter: 245 ± 10 pm Cladding Diameter: 125.0 ± 1.0 pm Coating — Cladding Concentricity < 12 pm Core -Clad Concentricity: <_ 0.6 pm Cladding Non - Circularity: <_ 1.0% Defined as: [ Min. C 1 _ iq Diameter ] x 100 Max. Cladding Diameter MECHANICAL SPECIFICATIONS Proof Test: The entire length of fiber is subjected to a tensile proof stress >_ 100 kpsi (0.7 GN /m2) *. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 20 of 24 EXHIBIT C OPERATIONS AND MAINTENANCE I. PREVENTATIVE, DEMAND AND EMERGENCYMAINTENANCE A. Preventative Maintenance: Preventative Maintenance refers to upgrades, and or routine maintenance or necessary alteration /repair of hardware or software or upgrades to increase capacity. Preventative Maintenance may temporarily degrade the quality of the service, including possible outages. Preventative Maintenance shall be undertaken only between the hours of 01:00:00 and 05:00:00 Local Time. The Party performing such maintenance shall provide at least three (3) days prior notice to the other Party of Preventative Maintenance. Preventative Maintenance performed by Provider shall commence with respect to the Licensed Fiber(s) upon the commencement of the grant of License hereunder. Preventative Maintenance performed by Provider shall include the following activities: (i) Patrol of System route on a regularly scheduled basis; (ii) Maintenance of a "Call - Before- You -Dig" program and all required and related cable locates; (iii) Maintenance of sign posts along the System right -of -way with the number of the local "Call- Before - You -Dig" organization and the "B00" number for the appropriate "Call- Before - You -Dig" program; and (iv) Assignment of maintenance technicians to locations along the route of the System at approximately 200 -mile intervals dependent upon terrain and accessibility. (ii) Recipient shall immediately report the need for Unscheduled Maintenance to Provider in accordance with procedures promulgated by Provider from time to time. Provider will log the time of Recipient's report, verify the problem and dispatch personnel immediately to take corrective action. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 21 of 24 B. Emergency Maintenance (Unscheduled Maintenance or Repair): Emergency Maintenance shall be performed by or under the direction of Provider in response to an alarm identification by Provider's Network Operations Center ( "NOC "), notification by Recipient or notification by any third party of any failure, interruption or impairment in the operation of a Recipient Fiber, or any event imminently likely to cause the failure, interruption or impairment in the operation of a Recipient Fiber. Work to address an Emergency Maintenance situation may degrade the quality of or cause outages. Provider may undertake Emergency Maintenance at any time deemed necessary but shall make commercially reasonable efforts to perform such maintenance within the hours identified for Preventative Maintenance if possible. Provider shall provide notice of Emergency Maintenance to Recipient as soon as is commercially practicable under the circumstance but when reasonably possible; provide notice twenty -four (24) hours in advance. Whenever prior notice is given, Recipient agrees to acknowledge notice of the emergency event in a reasonable period of time and in all events, Recipient will take necessary steps to notify key personnel internally in order for the Provider to correct or repair the affected area. C. Demand Maintenance: "Demand" maintenance is work necessary to restore service to one or more end -users of Provider and /or maintenance work required when a deficiency is found when performing Preventative Maintenance work. Provider may undertake Demand Maintenance immediately. Provider shall provide notice of Demand Maintenance to Recipient as soon as is commercially practicable under the circumstances. D. Notification: Provider shall provide Recipient with notice of Preventative Maintenance or as soon as possible in the case of Emergency or Demand Maintenance to the following by means of electronic mail notification and telephone: Recipient: City of Fort Worth IT Solutions Data Operations Center Phone: 817 - 392 -8489 Email: ComputerOperationsServices (cDfortworthtexas.gov Recipient shall notify Provider of any failure, interruption or impairment in the operation of a Recipient Fiber, or any event imminently likely to cause the failure, interruption or impairment in the operation of a Recipient Fiber. Provider: Charter Business Network Operations Center (CB NOC): Fiber Support One Call Phone: (866) 603 -3199 Email: CBNOC(&chartercom.com Recipient shall have the right to be present, at its sole cost and expense, during the performance of any Maintenance so long as this requirement does not interfere with Provider's ability to perform its obligations under this Agreement. In the event that Maintenance is canceled or delayed for whatever reason as previously notified, Provider shall notify Recipient at Provider's earliest opportunity, and will comply with the provisions of the previous sentence to reschedule any delayed activity. II. CHARTER BUSINESS NETWORK OPERATIONS CENTER. Provider operates and maintains an operations center, Charter Business Network Operations Center (CB NOC), which is staffed twenty -four (24) hours a day, seven (7) days a City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 22 of 24 week. Provider shall have a maintenance employee at the site requiring Emergency or Demand Maintenance activity within four (4) hours after the time Provider becomes aware of an event requiring Emergency or Demand Maintenance, unless delayed by circumstances beyond the reasonable control of Provider. III. COOPERATION AND COORDINATION. Recipient shall utilize the Charter Business Performance Center Escalation List, as updated from time to time, to report and seek immediate initial redress of exceptions noted in the performance of Provider in meeting maintenance service objectives. The following is the initial Charter Business Network Operations Center Escalation List. Charter Business Network Operations Center Escalation List The purpose of escalations is to ensure that adequate resources are mobilized quickly, tracked appropriately and the issue is resolved in the shortest possible time. To that end, the Charter Business NOC performs internal and external escalations within Charter and provides this escalation list to our customers and service partners for the purpose of escalations within the CB NOC. Escalation Contact Level Charter Business NOC: 1- 866 - 603 -3199 Numbers Name/Title /Email 1St Level Charter Business NOC Lead Engineer 1- 866 - 603 -3199 1 Hour 2" Level Charter Business NOC Supervisor 1- 866 - 603 -3199 2 Hours 3 rd Charter Business NOC Manager 502 - 420 -7467 Level Tony Barcellona office tbarcellonaCcDchartercom.com 502 - 442 -4494 3 Hours cell 4 th Level Charter Business NOC Director 502 - 420 -7419 Dan Davidson office 4 Hours 502 - 619 -2799 daniel.davidsonachartercom.com cell 5 th Level VP Network Ops & Engineer Services 303 - 323 -1347 Keith Hayes office 6 Hours keith.hayes(ab_chartercom.com 770 - 378 -3595 cell (a) TROUBLE REPORTING PROCEDURES To report suspected problems on the Recipient Fiber please call our CBNOC: Fiber Support One Call at (866) 603 -3199. We will request the following information related to the problem you are reporting: 1. Company name 2. Your name City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 23 of 24 3. Your phone number 4. Customer Contact name and number 5. Customer account number 6. Customer trouble ticket number 7. Fiber origination and termination locations 8. Time of trouble onset 9. Nature of observed trouble 10. Is Licensed Fiber(s) released to Recipient for testing? Once our CBNOC representative has received all of this information a Customer Trouble Ticket will be assigned and investigation of your report will begin. Once the status of your report has been determined the CBNOC will contact your designated contact individual at the appropriate number to discuss the findings. In any circumstance the initial response to Recipient will be within two (2) hours of the completion of the trouble reporting procedure. (b) Provider will, as necessary, arrange for unescorted access for Recipient to all sites of the System, subject to applicable contractual, underlying real property and other third -party limitations and restrictions. (c) In the event that any Maintenance hereunder requires a traffic roll or reconfiguration involving cable, fiber, electronic equipment, or regeneration or other facilities of the Recipient, then Recipient shall, at Provider's reasonable request, make such personnel of Recipient available as may be necessary in order to accomplish such maintenance, which personnel shall coordinate and cooperate with Provider in performing such maintenance as required of Provider hereunder. IV. Facilities. Provider shall maintain the System in a manner which will permit Recipient's use, in accordance with the terms and conditions provided under the terms of the Agreement. V. Cable /Fibers. (a) Provider shall perform appropriate Preventative Maintenance on the System in accordance with Provider's then current preventative maintenance procedures, which shall not substantially deviate from standard industry practice. (b) Provider shall have qualified representatives on site any time 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. VI. Subcontracting. Provider may subcontract any of the maintenance services hereunder; provided that 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 Provider of any of its obligations hereunder. City of Fort Worth Marcus Cable Associates, LLC Master Fiber Agreement Page 24 of 24 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 12/13/2011 DATE: Tuesday, December 13, 2011 LOG NAME: 13P11 -0315 - CHARTER SERVICES LW REFERENCE NO.: * *C -25344 SUBJECT: Authorize Execution of a Sole Source Master Fiber Agreement with Marcus Cable Associates, LLC, a Subsidiary of Charter Communications, Inc., for the Exclusive Use of Charter's Dark Fiber for an Annual Amount of $66,000.00 for the First Year (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize execution of a sole source Master Fiber Agreement with Marcus Cable Associates, LLC, a subsidiary of Charter Communications, Inc., Charter Business for the exclusive use of Charter's Dark Fiber for an amount of $66,000.00 for the first year, with maintenance included and payments due 30 after receipt of invoices. DISCUSSION: The City of Fort Worth will use this Agreement with Charter Business to maintain access to Charter's dark fiber network used by the City. Charter Business will perform continuous maintenance of Charter's dark fiber and provide maintenance on fiber used by City buildings. The Information Technology Solutions Department (ITS) will supervise and administer the Agreement. The Public Utility Regulatory Act of September 1, 2007 allows cable service providers the ability to be compensated by municipalities for the actual cost of the cable capacity (See Texas Utilities Code Section 66.006). This year, Charter Business began this process to invoice their clients for this access including the City of Fort Worth. Currently, the Charter Business fiber provides primary network connectivity to 18 City locations and provides two network connections (one primary and one failover) to Bolt Street Communications from City Hall for the 911 Communications Center. ITS estimates a first year expenditure of $66,000.00. Charter Business is the documented sole source vendor for maintaining Charter's dark fiber network and service provider to perform ongoing maintenance for the dark fiber used in City buildings. PRICE ANALYSIS - The City has no recent purchasing history for this type of service. Overall, prices are considered fair and reasonable. CONTRACT TERM - Upon City Council's approval, the Contract will be executed for a period of three years. M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office because the purchase of goods and services is from sources where subcontracting or supplier opportunities are negligible. I,ogname: 13P1 1 -0315 - C 14ARTF.R RFRVTC FR T.W PanP 1 nf7 RENEWAL OPTIONS - This Agreement may be renewed for up to two additional one -year terms upon mutual consent of both parties. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. FISCAL INFORMATION / CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Information Technology Solutions Department. FUND CENTERS: TO Fund /Account/Centers CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS 1. Sole. Source. Charter. pd (CFW Internal) 2. Waiver. 1 1-0315.pdf (CFW Internal) FROM Fund /Account/Centers Thomas Higgins (6192 ) Lena Ellis (8517) Marilyn Marvin (6689) Jack Dale (8357) Logname: 13P11 -0315 - C".HARTF.R RFRVTC FC VW pa"P 7 of 7