HomeMy WebLinkAboutItem 7c. Approve a Public-Private Partnership Agreement for Broadband Services Item 7c
Department: Information Technology
Cost Center: 1101
For Agenda of: 6/18/2024
Placement: Public Hearing
Estimated Time: 30 minutes
FROM: Greg Hermann, Deputy City Manager
Prepared By: Josh Erquiaga, Information Technology Manager
SUBJECT: APPROVE A PUBLIC-PRIVATE PARTNERSHIP AGREEMENT FOR
BROADBAND SERVICES
RECOMMENDATION
Authorize the City Manager to execute a Public-Private Partnership Agreement for
Broadband Services between the City of San Luis Obispo and Astound Broadband, LLC.
POLICY CONTEXT
The 2023-2025 Major City Goals call out specific tasks related to broadband.
Diversity, Equity, & Inclusion task
o 2.7a - Support the development and implementation of the Broadband
Strategic Plan to ensure access is equitable and pursue funding to fill gaps.
The City Council adopted the Broadband Plan on June 20, 2023, to facilitate work to
improve broadband access and affordability within the City. This public -private
partnership agreement is necessary to acquire grant funding, which is a key component
of the City’s Broadband Plan and delivery of broadband services in the City.
DISCUSSION
Background
As part of the adoption of the Broadband Plan on June 20, 2023, City staff recommended
that the City Council authorize the release of an RFP for a Broadband Private Partner to
work with the City to improve broadband access and affordability for City reside nts. The
Broadband Plan relies on the City identifying a private partner that will operate last mile
service to residents. Last mile services are the final connection between a provider
network and the person subscribing to broadband services. Through this agreement, the
provider will have the option to use the City backbone but will be responsible for building
the connections to individual homes or businesses. A private partner is also a requirement
of grant opportunities from the California Public Utilities Commissions (CPUC).
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City staff released the RFP in June 2023. The RFP sought a private partner that could
demonstrate experience and ability to perform the following roles:
Retail network operations, maintenance, and management
Network construction & permitting
Marketing & retail sales of symmetrical gigabit fiber-to-the-premises services
Financing and constructing service drops and laterals to subscribers
Customer services, billing, and retail network operations center (NOC) support
Technical field work, subscriber calls for service, and network repairs
Cash contributions toward match funding as required by various state and federal
grant applications
In-kind contributions of private broadband assets and/or services that would
expand or enhance the City’s network
These roles are critical to a partner being able to operate and build retail services within
the City which will improve access to broadband services for City residents. The City
received proposals from three separate firms. Staff from the Public Works, Community
Development, and Administration and IT evaluated each of the proposals and selected
Astound Broadband as the best candidate to meet the City’s goals outlined in the
Broadband Plan. Astound Broadband’s proposal demonstrated a clear u nderstanding of
the current state of fiber optic backbone deployment within the City and most closely
aligned with the City’s proposed method of increasing broadband infrastructure within the
City. Astound also committed to working with the City, including providing match funding
when feasible, for grant opportunities to build out the remaining sections of the City’s fiber
optic backbone. The two proposals which were not selected would have only operated
the network once built and required the City to provide funding and construct all of the
infrastructure to allow connections to individual neighborhoods and residences. Cost
estimates for this work in these proposals ranged from $40 - $80 million dollars and did
not include any private match. The proposals which were not selected also demonstrated
a lack of understanding of current economic conditions within the City and the existing
infrastructure available.
Staff has negotiated an agreement with Astound Broadband (Attachment A) with an initial
term of 20 years and two optional five-year renewals. This is a reasonable term given the
amount of time and planning involved in the installation of broadband infrastructure, and
is consistent with other infrastructure agreements the City has made. Additionally, as part
of the Broadband Plan staff and consultants created an analysis of likely operation costs
for a Public/Private partnership model which indicates that the private partner will not see
a return on investment until approximately year ten of an agreement. Given that the City
desires to have sustainable infrastructure, a longer term is needed for the partnership to
make business sense of a private partner. Staff believes that the agreement meets the
goals set forth in the Broadband Plan as well as direction of City Council, including
increasing access and affordability of broadband services for all residents of the City.
Some of the highlights of the agreement are:
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Item 7c
- Grant partnership (including a private match for applicable grants when feasible)
- Broadband pricing commitments (including subsidized rates for income qualified
households)
- Measurable buildout of fiber backbone to increase access to services
- Operation and maintenance of the City’s fiber backbone
Grant Partnership
Astound has agreed to work with the City to secure grant funding for broadband
infrastructure as part of the partnership, including providing matching grant funds or in -
kind contributions when feasible. Astound worked closely with the City to submit its Last
Mile Federal Funding Account grant application in September of 2023 and committed to
funding a 20% private match in the amount of $1,211,011 pending approval of this
agreement. Many of the other grants that fund broadband infrastructure also require the
City to have a private partner to apply for and receive grant funds which this agreement
would formalize. Astound also has staff who are experienced in grant writing that will
assist with these efforts.
Broadband Pricing Commitments
One of the key issues identified by the outreach conducted as part of the Broadband Plan
was the cost of broadband services within the City. The Broadband Plan identified that
City residents paid $0.32 per megabit (MB) on average, which is higher than the national
average, particularly for urban/metro areas where competitive rates should be in the
$0.15-0.25 per megabit range. Importantly, customers subscribing to plans providing less
than 100 Mbps pay, on average, $1.19 per Mbps, while customers subscribin g to higher
speed plans pay, on average, $0.23 per Mbps.
As part of the Last Mile Federal Funding Account (FFA) grant application (administered
by the California Public Utilities Commission), Astound committed to set pricing
commitments for their Internet Services, and the City has extended that to this agreement.
Astound has agreed to provide services at costs not to exceed the following:
100 Mbps/100 Mbps $40/month
1 Gbps/1Gbps $80/month
At these pricing commitments, Astound’s 1Gbps/1Gbps service is $0.08 per Mbps, and
its 100 Mbps/100 Mbps is $0.40 per Mbps, well below the average costs identified by the
Broadband Plan outreach. While these not to exceed prices are important, it is also
important to note that Astound’s current pricing is lower than these commitments (e.g. at
time of publishing, the current price for 1 Gbps/1Gbps service is $45/month , or $0.045
per Mbps). Astound understands that they are moving into a competitive market, a nd
endeavors to remain competitive amongst market incumbents. The pricing guarantees
here are important to secure these services for City residents at an affordable rate for the
long term.
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In addition to this pricing, Astound has agreed to continue to pro vide their Internet First
service, which provides a 50MB/50MB Internet connection for $10 per month for income -
qualified households. This is especially important given the Federal Affordable
Connectivity Program (ACP) ran out of funding at the end of April 2024 and has yet to be
funded by Congress.
Measurable Buildout
As a partnership, both the City and Astound are committed to expansion of affordable
broadband services within the City. Expansion of these services is an integral component
of the City’s expectations of Astound over the course of the agreement. The partnership
agreement lays out that Astound and the City will work together to create an initial set of
expansion metrics to improve community access to broadband services within the first
year of the agreement. Astound’s performance in meeting the agreed upon metrics will
be reviewed (and the metrics updated if necessary) every two years for the duration of
the agreement.
The Broadband Plan identified key areas of the City which the CPUC considers unserved
or underserved. These areas were further refined as part of the City’s FFA grant. This
provision for measurable build out gives the City the ability to ensure these areas are
addressed as part of Astound’s expansion plans. City Staff expects that the first set of
expansion metrics will be based on the FFA grant that the City and Astound filed together,
should the CPUC award to the City. Should the City not be awarded FFA grant money, it
will still have the opportunity to prioritize these areas while ensuring the total buildout is
sustainable.
Operation and Maintenance of the City’s Fiber Backbone
Astound has agreed to assume operation and maintenance of the City’s existing fiber
backbone and future build out per the Broadband Plan. One of the key responsibilities
Astound will assume as part of operation and maintenance is fiber location. Currently, the
City’s Utility locator position is responsible for locating all City fiber within the public right
of way. While the Utilities department is able to backup other responsibilities of the Utility
locator when they are unable to work (vacation, sick leave, etc.), there is currently no one
on City staff who can do fiber location in their absence, which leaves the City fiber network
vulnerable to accidental damage. Fiber location is part of the City’s responsibility to locate
underground City assets in response to an 811 inquiry. Anyone doing underground
excavation is encouraged to call 811 to have all Utilities marked to avoid damaging
underground assets. Given the importance of the fiber backbone to both City and Astound
operations, Astound assuming responsibility for fiber location will allow for consistent
location of fiber optic assets, preventing possible damage. Astound also has the ca pability
to perform repairs should accidental damage occur which will minimize service outages
for both the City and customers of Astound. The Information Technology division currently
pays only 5% of the cost of the Utility locator position ($4,173 in FY24 and $4,238 in
FY25). Should this agreement be approved, that 5% share would be redistributed
amongst the Utility departments that use the locators services.
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Finally, Astound will also have the responsibility to operate retail services that are built off
of the City’s fiber-optic backbone.
Additional Benefits to the City
As part of the agreement, the City will also retain access to leased dark fiber for
connections Astound has previously built to serve various City facilities. (Dark fiber refers
to fiber optic cable that is installed but unused, and is often leased by providers to third
parties). These dark fiber licenses were part of an existing conduit license and use
agreement between the City and Astound which will be superseded by the Private
Partnership agreement. Incorporating these leases ensures that the City has
uninterrupted use of existing connections. These are outlined in Exhibit C of the
agreement. Astound will also provide a 10Gbps internet connection for the City’s internal
business operations, and the ability to connect other City sites in the future as needed, if
Astound has infrastructure in the area. Finally, Astound will be the City’s partner in
operation of residential broadband services, which is a requirement of many of the grant
opportunities the City is likely to pursue. It is important to note that this agreement gives
Astound a non-exclusive right to City conduit and fiber, which allows the City to allow
other providers access to City conduit if the seems deems that beneficial to the City and
its residents, though it is unlikely that additional partners would come forward due to the
economics of the broadband market.
Benefits to Astound
Astound will continue to be able to use City conduit that is already in use by Astound, as
well as additional City conduit to help speed up deployment of broadband services at
lower cost. The conduit that is currently in use by Astound is part of the City’s previous
agreement with Astound which is superseded by the Private Partnership agreement. In
total, Astound is currently using approximately 55,000 feet of City conduit. Astound will
also have the option to use City dark fiber where it is available to increase backbone
availability.
Next Steps
Completion of this agreement is key to the City being prepared to accept grant awards
when they are announced. Currently, the City is awaiting the CPUC’s decision on its FFA
grant. One of the provisions of the grant is that the City have a partn er identified and
contracted that has experience operating commercial broadband services. This
agreement fulfills that requirement and gives the City an ideal partner in Astound.
The City is also in the process of awarding a contract for design and engineering services
for the entirety of the Broadband Plan using existing American Rescue Plan Act (ARPA)
funding. Staff expects to complete the contract award by mid-June. Taken together, this
agreement and the contract for design and engineering services put s the City in an
excellent position to accept grant funds, begin work quickly, and be prepared for future
grant opportunities.
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Item 7c
Previous Council Action
The City Council approved the Broadband Plan at the June 20, 2023 City Council
meeting.
Public Engagement
This item is on the agenda for the June 18, 2024 City Council meeting and will follow all
the required posting and notification. Public comment on the item can be provided to the
City Council through written correspondence prior to the meeting and through public
testimony at the meeting.
As part of the Broadband Plan preparation, City staff along with consultants from
Magellan Broadband, conducted five stakeholder meetings with constituents from various
sectors of the community: Business and Industry, Community-Based Non-Profit
Organizations, Education and Social Services, Real Estate and Land Use, and
Transportation and Utilities. A total of 31 different community groups participated in these
meetings. In addition, the City surveyed residents and business through an online survey
which received 283 responses. Key elements of the feedback received as a part of the
outreach including increasing access and affordability are reflected in the proposed
agreement.
CONCURRENCE
Staff from the Community Development Department, Public Works, City Attorneys Office,
Economic Development, and Diversity, Equity, and Inclusion were part of setting the
terms of the agreement and concur with the recommendation before Council.
ENVIRONMENTAL REVIEW
The California Environmental Quality Act (CEQA) does not apply to the recommended
action in this report, because the action does not constitute a “Project” under State CEQA
Guidelines Section 15378.
FISCAL IMPACT
Budgeted: N/A Budget Year: N/A
Funding Identified: N/A
Fiscal Analysis:
Funding
Sources
Total Budget
Available
Current
Funding
Request
Remaining
Balance
Annual
Ongoing
Cost
General Fund $ $0 $ $
State
Federal
Fees
Other:
Total $ $ $ $
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Item 7c
The agreement is structured in such a way that there is an exchange of services with a
net zero fiscal impact. Under the terms of the agreement Astound would perform
emergency repairs of the City’s fiber backbone. Generally, these repairs would be
charged to the negligent party that caused the damage. In a situation where a negligent
party can not be identified, the City would be responsible for the full cost of those repairs.
Under the agreement, there is a potential for unrealized savings within the term of the
agreement due to the City and Astound splitting the cost of emergency repairs to
infrastructure evenly. These types of repairs are generally rare occurrences, so staff is
unable to provide a definitive estimate of cost savings to the City. It should be noted that
additions to the City fiber backbone are dependent on grant funding as there is not an
otherwise funded project in the City’s Capital Improvement Plan.
ALTERNATIVES
1. Council could decide not to approve the Broadband Private Partnership
Agreement with Astound. Staff does not recommend this, as a private partner is
required for most grant funding opportunities. In addition, City staff does not have the
expertise to operate a residential broadband network and would be unable to do so
without a private partner.
2. Council could provide additional input to staff and direct them to return at a later
date with revisions to the agreement. Staff does not recommend this, as grant
funding decisions are expected at the end of June 2024 and a private partnership will
need to be in place to accept those grant funds.
ATTACHMENT
A - Public-Private Partnership Agreement for Broadband Services
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PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 1
City of San Luis Obispo / Astound Broadband, LLC
PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES
This PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES (the “Agreement”) is entered into as of the date
of last signature below (the “Effective Date”), by and between the CITY OF SAN LUIS OBISPO, a California municipal corporation (the
“City”), and ASTOUND BROADBAND, LLC, a Washington limited liability company, acting on behalf of itself and as agent for its Affiliates,
d/b/a Astound Business Solutions (collectively, “Astound”). Each of the City and Astound may be referred to in this Agreement as a
“Party,” and collectively as the “Parties.” With respect to either Party, the term “Affiliate” shall mean any person who directly or
indirectly controls, is controlled by, or is under common control with that Party. Affiliates of Digital West Networks, Inc. include, but
are not limited to (i) Wave Business Solutions, LLC, (ii) WaveDivision Holdings, LLC, and (iii) Astound Business Solutions, LLC.
RECITALS
A. The City and Digital West Networks, Inc. are the parties to that certain Agreement for Installation of Conduit and Conduit Use
Agreement dated September 20, 2011, as subsequently amended by that certain First Amendment to Agreement for Installation of
Conduit and Conduit Use dated April 15, 2015, and as amended by that certain Second Amendment to Agreement for Installation of
Conduit and Conduit Use dated February 10, 2016 (as amended, the “Old Contract”).
B. Pursuant to the Old Contract, the City granted Digital West Networks, Inc. (“Digital West”, an Affiliate of Astound Broadband,
LLC) a non-exclusive license to use portions of the City’s communications conduit for the installation of Digital West’s fiber optic cables
and related network facilities. In exchange, Digital West provided the City with a variety of consideration, including, but not limited
to, the performance of installation, maintenance and repair work related to the City’s conduit, the right to use certain fiber belonging
to Digital West, the provision of certain hosted services to the City, and the payment of annual license fees, all as more fully described
in the Old Contract.
C. In January of 2021, Digital West was acquired by the family of companies whose ultimate parent is Radiate Holdings, LP, and
which does business under the name “Astound”.
D. Astound owns, operates, or otherwise has rights in and to a fiber optic and HFC communications network, which Astound
uses to provide communications services, including Internet access, Ethernet transport, hosted voice, VoIP, IP transit, wavelengths,
dark fiber, video and related services to its commercial, governmental and residential customers.
E. Astound is in the process of expanding its network infrastructure within the City and nearby communities. In connection with
and to facilitate that network expansion, Astound and the City now desire to terminate the Old Contract and replace it with this
Agreement.
F. Pertinent to this Agreement, the City owns approximately 35 miles of installed communications conduit together with
associated vaults, manholes, hand holds and related facilities (collectively, the “Main City Conduit”). The approximate location of the
City Conduit is depicted on Exhibit A to this Agreement.
G. Also pertinent to this Agreement, the City is the owner, by Easement Deed recorded May 17, 2024 (San Luis Obispo County
Clerk Recorder Document No. 2024013311) (the “Easement Deed”) of certain communications conduit (the “Prado Road Conduit”)
that is installed on the real property located at 600 Hopkins Lane, San Luis Obispo, California 93401, having San Luis Obispo County
Assessor’s Parcel Nos. 053-431-002 and 053-431-003. Astound has communications facilities installed within the Prado Road Conduit,
pursuant to the Old Contract. The City now wishes to grant to Astound a non-exclusive license to use the Prado Road Conduit in
common with the City, for the purpose of installing, operating, maintaining, repairing, replacing and using Astound’s communications
cables and related networking facilities and equipment pursuant to this Agreement, subject to all terms, conditions, and limitations of
the Easement Deed. (The Main City Conduit and the Prado Road Conduit are referred to collectively as the “City Conduit”, and except
where or to the extent the Agreement treats either the Main City Conduit or the Prado Road Conduit differently, the Parties’ right and
obligations under this Agreement with respect to both the Main City Conduit and the Prado Road Conduit will be the same.)
H. As of the Effective Date of this Agreement, and pursuant to the rights granted to Astound under the Old Contract, Astound
has installed within portions of the City Conduit fiber optic cable and related networking facilities belonging to Astound (the “Existing
Astound Fiber”). The approximate locations in which the Existing Astound Fiber is installed are shown on Exhibit B to this Agreement.
I. As of the Effective Date of this Agreement, and pursuant to the rights granted to the City under the Old Contract, the City is
using certain dark fiber strands that constitute part of the Existing Astound Fiber to connect nine (9) City service sites along the routes
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PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 2
City of San Luis Obispo / Astound Broadband, LLC
set forth on Exhibit C to this Agreement (the “Licensed Dark Fibers”). The Licensed Dark Fibers form a part of the City’s internal
communications network.
J. The City now desires to grant Astound a non-exclusive license to use the City Conduit in common with the City and any other
persons authorized by the City (the “Authorized Users”), for the purposes of installing, maintaining, repairing, replacing, operating
Astound’s network facilities, including, but not limited to, the Existing Astound Fiber.
K. In exchange for the conduit license, Astound now desires to provide the following to the City:
(i) The continued right to use the Licensed Dark Fiber;
(ii) The right, in the future, as and when desired by the City, to expand the scope of the Licensed Dark Fibers to include
additional fiber strands belonging to Astound that are located within the City Conduit;
(iii) The performance of certain maintenance and repair activities with respect to City Conduit and Licensed Dark Fibers;
and
(iv) Whenever Astound installs new, replacement or additional fiber within any portion of the City Conduit, Astound will,
if desired by the City and at no charge to the City provide up to 24 fiber strands, unless the Parties agree otherwise
in writing.
(v) A 10 gigabit Internet connection, terminated at 990 Palm St (“City Hall”) and 1135 Roundhouse (“Emergency
Communications Center”). These terminations shall use geographically redundant paths.
L. The City and Astound now desire to enter into this Agreement to accomplish the foregoing, all as more fully described and in
accordance with the terms and conditions set forth below.
AGREEMENT
Now, therefore, in consideration of the mutual promises set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1: TERMINATION OF THE OLD CONTRACT
As of the Effective Date of this Agreement, the Old Contract shall terminate and have no further force or effect. The Old
Contract is replaced in all respects by the terms and conditions set forth in this Agreement.
ARTICLE 2: EQUIPMENT
2.1 Definition of Equipment. For purposes of this Agreement, the term “Equipment” means network infrastructure and
components including, but not limited to, gateway or edge electronic device, antenna, node, concentrator, bridge, receiver,
transmitter, transceiver, router, switch, hub, communications lines, cables and related facilities and software.
2.2 Astound Equipment. Any Equipment that is owned by or otherwise comprises a part of the Astound communications
network, including any Equipment supplied by Astound in connection with using the City Conduit, shall be referred to as the “Astound
Equipment.” Throughout the Term, the Astound Equipment shall remain the property of Astound and Astound shall be responsible
for all maintenance and repair of the Astound Equipment. Neither City nor any third party acting under City’s authority will relocate,
modify, tamper with, attempt to repair or otherwise interfere with the Astound Equipment.
2.3 City Equipment. Any Equipment that is owned by or otherwise comprises a part of the City communications network,
including any Equipment supplied by the City in connection with using the Licensed Dark Fibers shall be referred to as the “City
Equipment.” Throughout the Term, the City Equipment shall remain the property of the City and the City shall be responsible for all
maintenance and repair of the City Equipment. Neither Astound nor any third party acting under Astound’s authority will relocate,
modify, tamper with, attempt to repair or otherwise interfere with the City Equipment without City’s express authorization.
ARTICLE 3: CITY CONDUIT LICENSE
3.1 Grant of License.
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PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 3
City of San Luis Obispo / Astound Broadband, LLC
(a) Grant of License (Main City Conduit). Beginning on the Effective Date and continuing through the expiration or
earlier termination of the Term (Main City Conduit) specified in Article 8.1, the City grants to Astound a non-exclusive
license to use the Main City Conduit in common with the City and other Authorized Users (the “Conduit License
(Main City Conduit)”) for purposes of installing Astound’s fiber optic cable and related networking facilities and
Equipment (collectively, the “Astound Fiber”). While the term Astound Fiber includes the Existing Astound Fiber,
the Parties expressly intend for the term to have a broader meaning that shall include any and all additional,
substitute and/or replacement fiber optic cable and related networking facilities and Equipment that Astound
installs within the City Conduit during the Term.
(b) Grant of License (Prado Road Conduit). Beginning on the Effective Date and continuing through the expiration or
earlier termination of the Term (Prado Road Conduit) specified in Article 8.2, the City grants to Astound a non-
exclusive license to use the Prado Road Conduit in common with the City (the “Conduit License (Prado Road
Conduit)”) for the purpose of installing, operating, maintaining, repairing, replacing and using Astound Fiber, subject
to all terms, conditions, and limitations of the Easement Deed. Astound covenants to the City that, in using the
Prado Road Conduit, Astound shall coordinate and cooperate with the City to avoid disturbing the City Equipment
or any of the communications facilities. The City covenants to Astound that the City shall not disturb the Astound
Fiber installed within Prado Road Conduit.
3.2 Additional Access Points. Astound shall have the right, at any time and from time to time during the Term, to establish
additional break-out points along the route of any segment of the Main City Conduit, at which Astound will then be able to access the
Astound Fiber located within the City Conduit at issue. This right includes the right to install Astound-owned vaults, manholes, hand-
holes and/or splice boxes at said break-out points, and to establish intersection points (using wye splitters or other similar means) at
which Astound may interconnect the City Conduit with other communications conduit owned, operated or used by Astound so that
Astound may splice other fiber strands into any one or more of the cables containing the Astound Fiber. Demarcation of ownership
of break-out points shall be at the sidewalk, handhole, or pole attachment location (as is applicable). Astound shall provide the City
with reasonable advance notice of Astound’s desire to establish a new break-out or interconnection point. The Parties shall cooperate
in good faith to agree upon a design and implementation schedule for Astound’s new break-out or interconnection point that is
acceptable to both Parties with the objective of reasonably minimizing any disruption to the City’s and other Authorized Parties’ use
of the City Conduit at issue. Astound shall be responsible for obtaining, at Astound’s expense, any and all licenses, permits and/or
other approvals needed in connection with Astound’s activities described in this Section 3.2.
3.3 Joint Use. Astound understands that there are no innerducts installed within the City Conduit. Thus, Astound is not receiving
from the City the exclusive right to use a specific innerduct. Instead, Astound’s right to use the City Conduit is a right to use the City
Conduit in common with the City and the other Authorized Users. Astound covenants to the City that, in using the City Conduit,
Astound shall coordinate and cooperate with the City and any other Authorized Users to avoid disturbing any of the communications
facilities belonging to the City or the Authorized Users. The City covenants to Astound that neither the City nor any of the Authorized
Users shall disturb the Astound Fiber installed within the City Conduit.
ARTICLE 4: DARK FIBER LICENSE TO CITY
4.1 Grant of License. Beginning on the Effective Date and continuing through the expiration or earlier termination of the Term,
Astound grants to the City an exclusive license to use the Licensed Dark Fibers specified on Exhibit C (the “Dark Fiber License”) by
accessing same at the A Location and Z Location end points, as well as at any additional access points that may be specified in Exhibit C
(collectively, the “Dark Fiber Access Points”). The City is not permitted to access the Licensed Dark Fibers at any location other than
the Dark Fiber Access Points.
4.2 Additional Dark Fibers. At any time during the Term, the City shall have the right to add additional fibers to the Dark Fiber
License. Specifically, the City may use up to four (4) strands of the Astound Fiber that is installed within any segment of the City
Conduit for the purpose of connecting City service sites. If any lateral extension is required to connect the nearest access point of the
Astound Fiber to any City service site, Astound shall install such lateral extension; provided that if the cost of installing any such lateral
extension is in excess of Three Thousand and No/100 Dollars ($3,000.00), then the City shall reimburse Astound for its costs incurred
in performing the installation work. To exercise its right to add new fibers to the Dark Fiber License, the City shall provide Astound
with reasonable advance written notice of the service sites the City desires to connect using the Astound Fiber. The Parties shall work
cooperatively to agree upon installation plans and an implementation timeline pursuant to which the new fiber(s) will be installed at
the City’s service sites. Astound shall perform all splicing of the Astound Fibers at issue. Once the new fiber(s) have been delivered
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PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 4
City of San Luis Obispo / Astound Broadband, LLC
to the City by Astound, said fiber(s) shall constitute a part of the Licensed Dark Fibers, and the Parties shall amend Exhibit C to include
the new fiber routes and the Dark Fiber Access Points for same.
4.3 Equipment. Astound shall have no obligation to provide the City with any optronics, electronics, cabling or other Equipment
in connection with the Dark Fiber License. Instead, the City shall be responsible for providing, installing, operating and maintaining
any and all Equipment needed in order for the City to make use of the Licensed Dark Fibers.
4.4 Use of Licensed Dark Fibers. The City may use the Licensed Dark Fibers as a part of the City’s internal communications network
and for other governmental purposes. The Licensed Dark Fibers may not be used for any non-governmental purpose or use
whatsoever, and in particular may not be leased, licensed, or otherwise in any form conveyed or permitted to be used by entities that
provide communications services or facilities in competition with Astound. The City’s use of the Licensed Dark Fibers shall at all times
comply with applicable law. Should the City violate the provisions of this Section 4.4, Astound shall give the City written notice it has
done so and reasonable opportunity to cure (no less than thirty (30) days), and if the City fails to cure in that period, Astound shall
have the right to immediately terminate the Dark Fiber License.
4.5 No Transfer or Sub-Licensing. The Licensed Dark Fibers provided to the City pursuant to this Agreement are for the sole
benefit of the City. The City shall not grant to any third party the right to use any of the Licensed Dark Fibers, regardless of whether
such grant were to take the form of a license, sublicense, lease, sublease, shared use agreement, services swap, or any other form.
Instead, the right to use the Licensed Dark Fibers is personal to the City and is not assignable, delegable, divisible or transferable.
Should the City violate the restrictions contained in this Section 4.5, Astound shall give the City written notice it has done so and
reasonable opportunity to cure (no less than thirty (30) days), and if the City fails to cure in that period, Astound shall have the right
to immediately terminate the Dark Fiber License.
4.6 Availability. At all times during the Term, Astound shall use commercially reasonable efforts in keeping with normal industry
standards to ensure that the Licensed Dark Fibers are available to the City twenty-four (24) hours per day, seven (7) days per week,
three hundred and sixty five (365) days a year. It is possible, however, that there will be interruptions in the availability of the Licensed
Dark Fibers. The City understands and agrees that some or all of the Licensed Dark Fibers, may be unavailable from time to time either
for scheduled or unscheduled maintenance, due to fiber cuts or other reasons beyond Astound’s reasonable control. Temporary
interruptions in the availability of the Licensed Dark Fibers for such reasons, as well as interruptions or outages caused by the City, its
agents and employees, or by Force Majeure Events, will not constitute failures by Astound to perform its obligations under this
Agreement.
ARTICLE 4A: DARK FIBER LICENSE TO ASTOUND
4A.1 Grant of License. Beginning on the Effective Date and continuing through the expiration or earlier termination of the Term,
the City grants to Astound the option to obtain an exclusive license to use City-owned Dark Fiber existing on the Effective Date (the
“Existing City Dark Fiber License”) at no cost, as available, for non-wholesale subscribers. Should Astound sell to wholesale users,
Astound shall pay to the City $65/strand mile MRC, or a price otherwise agreed upon in writing. Exhibit C shall be amended at such
time or times as Astound leases from the City any City-owned Dark Fiber pursuant to this Section 4A.1.
4A.2 Use of Existing City Dark Fibers. Astound may use the Existing City Dark Fibers as a part of Astound’s backbone and/or internal
communications network(s). Astound may convey use of the Existing City Dark Fibers according to the terms set forth in Section 4A.1
above. Astound’s use of the Existing City Dark Fibers shall at all times comply with applicable law. Should Astound violate the
provisions of this Article 4A, the City shall give Astound written notice it has done so and reasonable opportunity to cure (no less than
thirty (30) days), and if Astound fails to cure in that period, City shall have the right to immediately terminate the Existing City Dark
Fiber License.
4A.3 Grant-Funded Dark Fibers. If at any time during the Term the City obtains grant-funded dark fiber (“Grant-Funded Fiber”),
Astound shall (unless otherwise agreed upon by the Parties in connection with the grant request) be issued an IRU on 48 strands of
the Grant-Funded Fiber for the full Term of the Agreement, including any extensions (the “Grant-Funded Fiber License.”) Astound’s
use of Grant-Funded Fiber shall be in furtherance the purposes of the grant and shall comply with all terms, conditions, and limitations
imposed by the grantor. The Grant-Funded Fibers provided to Astound pursuant to this Article 4A are for the sole use of fulfilling the
grant purpose. Astound shall not grant to any third party the right to use any of the Grant-Funded Fiber, regardless of whether such
grant were to take the form of a license, sublicense, lease, sublease, shared use agreement, services swap, or any other form. Instead,
the right to use the Grant-Funded Fiber is personal to Astound and conditional upon compliance with this section 4A.3. Should Astound
violate the restrictions contained in this Section 4A.3, the City shall give Astound written notice it has done so and reasonable
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opportunity to cure (no less than thirty (30) days), and if Astound fails to cure in that period, City shall have the right to immediately
terminate the Grant-Funded Fiber License.
ARTICLE 5: ASTOUND’S MAINTENANCE AND REPAIR OBLIGATIONS
5.1 In General. During the Term, Astound shall be responsible for performing both routine scheduled maintenance and
emergency maintenance with respect to: (i) City Conduit identified in Exhibit A (provided that Astound shall not be responsible for
routine scheduled maintenance and emergency maintenance with respect to Fiber that has been licensed to or authorized by the City
for use by any non-governmental agency); and (ii) the Licensed Dark Fibers.
5.2 Routine Scheduled Maintenance. During the Term, Astound shall perform the same type, frequency and quality of regular,
routine scheduled maintenance and repair with respect to the City Conduit that Astound performs with respect to Astound’s own
communications conduit systems, which shall not materially deviate from industry standards. Such routine maintenance shall
include maintenance of a “call-before-you-dig” program and performance of all related locates associated with same.
5.3 Emergency Repairs. During the Term, Astound shall perform any necessary emergency or other unscheduled repairs with
respect to the City Conduit and/or the Licensed Dark Fibers and/or Unlicensed Dark Fibers (see definition in Section 5.3(c) below).
Astound’s network operations center is staffed twenty-four (24) hours per day, seven (7) days per week to accept notifications from
the City regarding any problems with the City Conduit and/or the Licensed Dark Fibers.
(a) Emergency Repair of City Conduit. The Parties agree that Astound’s priority in the event of damage to the City
Conduit is the repair of signal discontinuity in damaged or cut active fibers. Accordingly, if the City Conduit is damaged, but the fiber
within the City Conduit is not damaged and is not in immediate danger of becoming damaged, Astound shall use commercially
reasonable efforts to repair or replace the damaged City Conduit as soon as reasonably feasible, but such work may be performed
during normal business hours and will receive a lower priority than maintenance or repair involving signal discontinuity.
(b) Emergency Repair of Licensed Dark Fibers. If any one or more of the Licensed Dark Fibers is damaged or in imminent
danger of suffering damage, Astound shall immediately commence repair and restoration of same and complete said repair and
restoration as soon as possible. In the event of damage to the Licensed Dark Fibers, Astound shall use reasonable efforts to have its
personnel at the site requiring emergency maintenance within four (4) hours after Astound becomes aware of the need for emergency
maintenance. Astound shall use reasonable efforts to repair traffic-affecting fiber discontinuity within eight (8) hours after Astound’s
maintenance personnel arrive at the problem site. Periods of Excused Outage shall be excluded from the timelines set forth above.
The term “Excused Outage” means any disruption to or unavailability of the Licensed Dark Fibers that is caused by or due to any one
or more of the following: (i) Force Majeure Events, (ii) the acts or omissions of City personnel or the City’s agents, contractors, or end
users, (iii) the failure or malfunction of Equipment not belonging to Astound, (iv) Astound’s inability, due to no fault on the part of
Astound, to access the location of the fiber cut, or (v) other causes beyond the reasonable control of Astound. Astound shall provide
the City with regular status updates during the restoration process. Restoration of inactive fibers not immediately required for service
shall be completed on a mutually agreed-upon schedule. Astound’s representatives that are responsible for initial restoration of a cut
fiber optic cable shall carry on their vehicles the typical appropriate equipment that would enable a temporary splice, with the
objective of restoring operating capability in as little time as possible.
(c) Repair of Dark Fiber that is not Licensed Fiber. If any one or more of the dark fibers that is not a Licensed Dark Fiber
(each an “Unlicensed Dark Fiber”) is damaged or in imminent danger of suffering damage, Astound shall, immediately after receipt of
notification from the City of the same, commence repair and restoration of same and complete said repair and restoration as soon as
possible. In the event of damage to the Unlicensed Dark Fibers, Astound shall use reasonable efforts to have its personnel at the site
requiring emergency maintenance within four (4) hours after Astound becomes aware of the need for emergency maintenance.
Astound shall use reasonable efforts to repair traffic-affecting fiber discontinuity within eight (8) hours after Astound’s maintenance
personnel arrive at the problem site. Periods of Excused Outage shall be excluded from the timelines set forth above. The term
“Excused Outage” means any disruption to or unavailability of the Unlicensed Dark Fibers that is caused by or due to any one or more
of the following: (i) Force Majeure Events, (ii) the acts or omissions of City personnel or the City’s agents, contractors, or end users,
(iii) the failure or malfunction of Equipment not belonging to Astound, (iv) Astound’s inability, due to no fault on the part of Astound,
to access the location of the fiber cut, or (v) other causes beyond the reasonable control of Astound. Astound shall provide the City
with regular status updates during the restoration process. Restoration of inactive fibers not immediately required for service shall
be completed on a mutually agreed-upon schedule. Astound’s representatives that are responsible for initial restoration of a cut fiber
optic cable shall carry on their vehicles the typical appropriate equipment that would enable a temporary splice, with the objective of
restoring operating capability in as little time as possible. The City acknowledges and agrees that the obligations on Astound as set
forth in this Section 5(c) will apply only to Unlicensed Dark Fiber that Astound has been able to inventory. The City will provide an
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inventory of existing Unlicensed Dark Fiber and a list of known faults or issues with the Unlicensed Dark Fiber.
5.4 Allocation of Repair Costs.
(a) Costs of Routine Scheduled Maintenance (City Conduit). Except for routine maintenance or repairs necessitated due
to the City’s or another Authorized User’s negligence or intentional misconduct, for which the City shall reimburse Astound, the costs
of routine, scheduled maintenance and repair (as described in Section 5.2 above) performed pursuant to this Article 5 shall be borne
by Astound.
(b) Costs of Repairs (City Conduit). Except for the costs of repairs necessitated due to the negligence or intentional
misconduct of a Party, for which that Party shall be solely responsible, the costs of repairs performed pursuant to Sections 5.3(a) will
be divided evenly between Astound and the City.
(c) Costs of Repairs (Unlicensed Fiber). Except for the costs of repairs necessitated due to the negligence or intentional
misconduct of a Party, for which that Party shall be solely responsible, the costs of repairs performed by Astound on Unlicensed Dark
Fiber (regardless of the reason for the repair) will be borne solely by the City.
5.5 Manner of Performance. Astound will perform all construction, installation, maintenance and repair work under this
Agreement in a safe manner consistent with generally accepted standards in the communications industry, and in such a way as to
reasonably minimize interference with the operation and use of the property on which the City Conduit at issue is installed. Astound
shall not allow any materialman’s or mechanic’s liens to attach to the City Conduit, any City Equipment, or any other property
belonging to the City. Astound shall provide and install suitable safeguards, consistent with applicable industry practice and approved
by the City, to protect City property from injury or damage. After completing any maintenance or repair work on the City Conduit,
Astound shall repair and restore any damage caused by Astound to the property, street, sidewalk, curbs, landscaping or other impacted
areas, to the condition existing immediately prior to Astound's maintenance or repair work, reasonable wear and tear excepted.
5.6 Use of Contractors. The City expressly understands and agrees that Astound may use contractors to perform some or all of
the work described in this Agreement. Astound shall be fully liable for the actions of its contractors, and Astound shall require its
contractors to agree to and abide by obligations substantially similar to those set forth in Section 5.5 above.
ARTICLE 6: CITY FIBER ALLOCATION
At all times during the Term, if Astound is planning to install fiber within a new portion of the City Conduit, Astound shall
inform the City of the planned installation work. Astound may exercise its rights under this Article 6 in all City Conduit, and when
doing so, Astound shall (unless Astound and the City have agreed otherwise with respect to specific installation or construction of new
fiber) allocate to the City up to 24 fiber strands in every new conduit-span pull. The City and Astound will mutually agree to the fiber
count to be allocated to the City up to 24 fibers prior to the installation of the Astound fiber cable. After completion of the installation
of City-allocated fiber, Astound will ensure the fiber conforms to its applicable specifications as of the turn-up date of services Astound
agrees to provide to the City.
ARTICLE 7: RELOCATION
The Parties recognize that, at one or more times during the Term, one or more portions of the City Conduit (as that term is
defined in Section 5.1 above) may need to be relocated, under any of the following circumstances: (i) the City is required to relocate
the conduit by a third party with the legal authority to so require; (ii) in the City’s reasonable judgment, relocation will be beneficial
to the City or its citizens; or (iii) Astound and the City jointly desire to relocate. Should any of the foregoing occur with respect to City
Conduit, Astound shall, unless otherwise directed by the City, perform the desired or required relocation. In the event of any such
relocation, Astound and the City shall cooperate in good faith to minimize any service interruptions by or to either Party. In the event
of relocation due to (i) or (iii) above, the City shall reimburse Astound for fifty percent (50%) of Astound’s costs incurred in performing
the relocation. In the event of relocation due to (ii) above, the City shall reimburse Astound one hundred percent (100%) of Astound’s
costs incurred in performing the relocation.
ARTICLE 7A: COMPLIANCE WITH LAW; PERMITTING
7A.1 Astound’s Compliance with Applicable Law. When performing its obligations under Articles 3, 5, 6, and 7 of this Agreement,
Astound shall comply with all governmental laws, rules, regulations, codes, and ordinances applicable to such obligations, and shall
obtain from the City any permits or permissions required from the City and applicable to such obligations (collectively, “City Permits”).
At all times during the term of this Agreement, Astound shall have in full force and effect, all licenses required of it by law for the
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performance of this Agreement. Astound’s failure to comply with applicable law, rules, regulations, codes, ordinances, and/or licensing
requirements may constitute Default as defined in Section 9.1 below.
7A.2 City’s Cooperation in Permitting Process. In recognition of the benefits to both the City and Astound of Astound’s ability to
perform its obligations under Articles 3, 5, 6, and 7 of this Agreement as quickly as possible and at the lowest cost, the City agrees that
at all times during the Term, it shall: (i) use reasonable efforts to streamline the processes and procedures applicable to requesting
and obtaining City Permits (and in particular to reduce the time and cost of obtaining City Permits); and (ii) cooperate with Astound
during the process of Astound’s requesting and obtaining City Permits where necessary for performance of Astound’s obligations
under Articles 3, 5, 6, and 7.
7A.3 Prevailing Wage. Where Applicable Law requires Astound to pay prevailing wage when performing its obligations under
Articles 3, 5, 6, and 7 of this Agreement, Astound will do so.
7A.4 Payment of Taxes and Fees. Astound shall be responsible for payment of any applicable taxes and fees for Astound assets
and Astound’s performance under this Agreement.
ARTICLE 7B: ASTOUND’S SERVICES; MARKETING
7B.1 VOIP Services. Astound affirms that its VOIP phone services that residents of the City may (but are not obliged) to purchase
from Astound comply with requirements imposed on such services by the State of California and the FCC, including requirements for
e911 calls.
7B.2 Marketing of Astound’s Services. Astound is solely responsible for marketing its services available to residential and business
customers in the City (the “Astound Services”). In materials advertising or promoting the Astound Services, Astound may use the
City’s name only where the City expressly gives Astound advance written permission to do so, and only in the manner authorized by
the City. The City retains the right to modify or require withdrawal of any marketing campaign or message made or sent on behalf of
the City.
7B.3 Community Benefit. For Astound Services available to residential customers in the City, Astound agrees to honor its pricing
commitments outlined in the Last Mile FFA Grant application as set forth on Exhibit D of this Agreement.
7B.4 Broadband Expansion. The Parties recognize that, as of the Effective Date, it is infeasible to set metrics by which Astound
must expand broadband availability within the City. However, because expansion of broadband availability is a material policy
objective adopted by the City’s legislative body in approving this Agreement, the Parties agree to meet and confer in good faith one
(1) year after the Effective Date, and every two (2) years thereafter for the duration of the Term, to evaluate Astound’s performance
in expanding broadband availability. Should the City determine, in its reasonable discretion, that Astound is failing to meaningfully
expand broadband availability within the City, the Parties will work together in good faith to agree upon metrics by which Astound
must expand broadband availability (the “Broadband Expansion Metrics”). Astound will have one (1) year (or any other period agreed
upon by the Parties) after the date the Broadband Expansion Metrics are agreed, to complete the broadband expansion, and if Astound
fails to do so, the City may terminate this Agreement.
Upon Assignment pursuant to Article 16, Successor and the City shall meet and confer in good faith pursuant to this Section
7B.4 within six (6) months of Successor’s assumption of the Agreement, regardless of the date of the most recent conference between
the Parties pursuant to this Section.
ARTICLE 7C: RESIDENTIAL NETWORK
Should the City and Astound submit a request for grant funding and should the City receive any grant funding that requires
the City to partner with a private entity with experience in operating residential and/or business broadband networks, Astound shall
be responsible for such operations for the City. Astound shall operate all grant-built facilities and shall be responsible for constructing
any additional Central Office Facilities necessary to serve end-user customers as required by this Article 7C. (The obligations in this
Article 7C will only apply where Astound and the City have partnered for the submission of the grant request.)
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ARTICLE 8: TERM OF AGREEMENT
8.1 Term (Main City Conduit).
(a) Initial Term (Main City Conduit). The initial term of this Agreement with respect to the Main City Conduit (the “Initial
Term (Main City Conduit)”) shall be for twenty (20) years, beginning on the Effective Date and expiring on the date
that is one day prior to the twentieth (20th) anniversary of the Effective Date (the “Initial Term Expiration Date (Main
City Conduit)”).
(b) Renewal Terms. There shall be two (2) renewal options for this Agreement with respect to the Main City Conduit,
each of which is for a renewal term of five (5) years (respectively, the “First Renewal Term (Main City Conduit)” and
the “Second Renewal Term (Main City Conduit)”). Upon expiration of the Initial Term (Main City Conduit), unless
either Party elects to forgo the First Renewal Term by delivering written notice of termination to the other Party no
later than one hundred eighty (180) days prior to the Initial Term Expiration Date, this Agreement shall automatically
renew for the First Renewal Term. The First Renewal Term (if any) shall expire on the date that is one day prior to
the twenty-fifth (25th) anniversary of the Effective Date (the “First Renewal Term Expiration Date (Main City
Conduit)”). Upon expiration of the First Renewal Term (Main City Conduit) (if any), unless either Party elects to forgo
the Second Renewal Term by delivering written notice of termination to the other Party no later than one hundred
eighty (180) days prior to the First Renewal Term Expiration Date (Main City Conduit), this Agreement shall
automatically renew for the Second Renewal Term (Main City Conduit). This Agreement shall automatically expire
on the date that is one day prior to the thirtieth (30th) anniversary of the Effective Date. The total period of time this
Agreement is in effect with respect to the Main City Conduit shall be referred to as the “Term (Main City Conduit)”.
8.2 Term (Prado Road Conduit). The initial term (“Initial Term (Prado Road Conduit)”) of this Agreement with respect to the
(Prado Road Conduit) shall be for thirty (30) years, beginning on the Effective Date. Upon the expiration of the Initial Term (Prado
Road Conduit), with respect to the Prado Road Conduit, the Agreement will begin to renew automatically for successive periods of
one (1) year (each, a “Renewal Term (Prado Road Conduit)”). During any Renewal Term (Prado Road Conduit), either Party may
terminate the Agreement with respect to the Prado Road Conduit at the end of the then-current Renewal Term (Prado Road Conduit)
by giving written notice of termination to the other Party not less than one-hundred-eighty (180) days prior to the end of the then-
current Renewal Term (Prado Road Conduit). The total period of time this Agreement is in effect with respect to the Prado Road
Conduit shall be referred to as the “Term (Prado Road Conduit)”).
8.3 Effect of Expiration. The total period of time this Agreement is in effect, comprising both the Term (Main City Conduit) and
the Term (Prado Road Conduit), shall be referred to as the “Term” of this Agreement. Upon expiration or earlier termination of the
Term, the Conduit License, the Dark Fiber License, the Existing City Dark Fiber License, and the Grant-Funded Fiber License shall
automatically terminate. Astound shall have a period of one-hundred-eighty (180) days following the expiration or earlier termination
of the Term (other than for default by Astound) in which Astound may remove all or any portion of the Astound Fiber and any
associated Astound Equipment from the City Conduit. Any personal property belonging to Astound that remains in the City Conduit
after that one-hundred-eighty (180) days period shall be deemed abandoned by Astound and title to same shall automatically transfer
to and vest in the City. Upon expiration or earlier termination of the Term, where the City and Astound have partnered in the
application for and receipt of grant funds to install conduit and/or fiber pursuant to this Agreement, title to all grant-built assets, if
not already property of the City, shall automatically transfer to and vest in the City.
8.4 No Termination for Convenience. Neither Party may unilaterally terminate this Agreement, other than for Default as
discussed in Article 9 below, with respect to the Main City Conduit or Prado Road Conduit during its respective initial term.
ARTICLE 9: DEFAULT
9.1 Definition. A “Default” shall be deemed to have occurred under this Agreement under the following circumstances:
(a) in the case of a failure to pay any amount when due under this Agreement, a Party fails to pay such amount within
fifteen (15) days after written notice from the other Party specifying such breach; or
(b) in the case of any other material breach of this Agreement, a Party fails to cure such breach within thirty (30) days after
written notice from the other Party specifying such breach, provided that if the breach is of a nature that cannot reasonably be cured
within said thirty (30) day time period, a Default shall not have occurred so long as the breaching Party has commenced cure within
said thirty (30) day time period and thereafter diligently pursues cure to completion within ninety (90) days of receiving the original
written notice regarding the breach.
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9.2 Remedies. In the event of any Default hereunder, the non-Defaulting Party may do any one or more of the following: (i) take
such actions as it deems reasonably necessary to correct the Default and charge the costs to the Defaulting Party; (ii) terminate this
Agreement by delivering written notice of termination to the Defaulting Party; and/or (iii) pursue any other remedies available to it
under this Agreement, at law or in equity.
9.3 Disposition of Property Upon Default.
(a) Upon termination of the Agreement because of default by Astound, all Astound fiber cables within City conduit shall
automatically become property of the City.
(b) Upon termination of the Agreement because of default by the City, Astound shall retain an IRU as to all existing dark
fiber licenses and conduit occupancy rights granted to Astound pursuant to this Agreement, for the full Term of the
Agreement.
9.4 No Waiver. A waiver by either Party at any time of any of its rights regarding a particular breach or Default of the other Party
under this Agreement shall not be deemed a permanent waiver of such rights, nor shall any such waiver be deemed a waiver of any
subsequent breach or Default.
ARTICLE 10: DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY COVENANTS, REPRESENTATIONS OR WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND/OR ANY
EXHIBIT(S) ATTACHED HERETO, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DESCRIPTION,
QUALITY, MERCHANTABILITY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE OR USE OF ANY OF THE SERVICES OR THE
CONDUIT OR RELATED FACILITIES PROVIDED PURSUANT TO THIS AGREEMENT, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.
ARTICLE 11: INDEMNIFICATION BY ASTOUND
To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), Astound shall
indemnify, defend, and hold harmless the City, and its elected officials, officers, employees, volunteers, and agents (“City
Indemnitees”) from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including
reasonable legal counsels’ fees and costs of litigation (collectively, “Claims”), to the extent arising out of (i) Astound’s failure to perform
its obligations under this Agreement or (ii) Astound’s negligence or willful misconduct in the performance of its obligations or the
conduct of its operations under this Agreement. In the event of a Claim, Astound shall provide a defense of and against such Claim to
the City Indemnitees, or at the City’s option, reimburse the City Indemnitees their costs of defense, including reasonable legal fees, as
reasonably documented and actually incurred by the City in defense of such Claim.
ARTICLE 12: INSURANCE
12.1 Required Insurance. During the Term, each Party shall procure and maintain in force, at its own expense, insurance coverage
in amounts that a reasonably prudent business person would maintain considering the obligations of the Parties hereunder, but in no
event less than coverage of the types and limits detailed in Exhibit E:
12.2 Insurance Providers. Each Party shall maintain the required insurance coverage with insurers authorized to conduct business
in the applicable jurisdiction(s) and having an AM Best Rating of A – /VII, or equivalent from another recognized rating agency, and
each Party shall, upon request, provide the other Party with an insurance certificate confirming compliance with the requirements of
this Article.
12.3 Failure to Carry. In the event either Party fails to maintain the required insurance coverage and a claim is made or suffered,
such Party shall defend, indemnify and hold harmless the other Party from any and all claims for which the required insurance would
have provided coverage.
ARTICLE 13: FORCE MAJEURE EVENTS
Neither Party shall be liable for any delay in or failure of performance hereunder due to causes beyond such Party’s
reasonable control including, but not limited to, acts of God, fire, flood, earthquake, ice storms, wind storms, or other sever weather
events, explosion, vandalism, cable cut, terrorist acts, insurrection, riots or other civil unrest, national or regional emergency,
unavailability of rights-of-way, a governmental authority’s failure to timely act, inability to obtain equipment, material or other
supplies due to strike, lockout or work stoppage, or any law, order, regulation, direction, action or request of any civil or military
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governmental authority (each, a “Force Majeure Event”). This Article shall only excuse delay in or failure of performance if the Party
seeking excuse provides a showing of impossibility of timely performance and the other Party agrees that such obligation can be
excused or delayed because of a Force Majeure Event. The excused Party shall resume performance of the obligation at the conclusion
of the Force Majeure Event.
ARTICLE 14: CONFIDENTIALITY
14.1 Definition of Confidential Information. “Confidential Information” shall mean all information regarding the
telecommunications systems and business operations of the Parties which is disclosed by one Party (“Disclosing Party”) to the other
Party (“Receiving Party”), to the extent that such information is marked or identified as confidential or proprietary or would be
reasonably deemed confidential or proprietary given the circumstances surrounding its disclosure. Notwithstanding the foregoing, all
written or oral negotiations between the Parties shall be deemed Confidential Information, whether or not so designated. Information
shall not be deemed Confidential Information if (i) it is independently developed by or for the Receiving Party, (ii) it is lawfully received
by the Receiving Party free of any obligation to keep it confidential, (iii) it becomes generally available to the public other than by
breach of this Agreement, or (iv) it was known to the Receiving Party prior to the Disclosing Party’s disclosure of same.
14.2 Protection of Confidential Information. Confidential Information is the property of the Disclosing Party and shall be returned
to the Disclosing Party upon request. Receiving Party, including its officers, directors, employees, partners, affiliates, agents and
representatives, shall hold all Confidential Information in confidence. The Receiving Party: (i) shall use such Confidential Information
only for the purposes of performing its obligations and/or enforcing its rights under this Agreement; (ii) shall reproduce such
Confidential Information only to the extent necessary for such purposes; (iii) shall restrict disclosure of such Confidential Information
to employees or contractors that have a need to know for such purposes (with disclosure to contractors being limited to contractors
that have signed a non-disclosure agreement to protect the Confidential Information of third parties); (iv) shall not disclose
Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in this
Agreement or as required by law, by court order, by administrative order of an agency having jurisdiction, or in the enforcement of its
rights under this Agreement; and (v) shall use at least the same degree of care (in no event less than reasonable care) as it uses with
regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential
Information. Neither Party shall take any action, including intentional memorization of the other Party’s Confidential Information,
with the intent or purpose of evading obligations contained in this Article 14. In the event a Receiving Party is required to disclose
Confidential Information of the Disclosing Party pursuant to law, court order or administrative order of an agency having jurisdiction,
the Receiving Party will, if such notice is permitted by law, notify the Disclosing Party of the required disclosure with sufficient time
for the Disclosing Party to seek judicial relief from the required disclosure, and reasonably cooperate with the Disclosing Party in any
efforts the Disclosing Party may take to obtain protective measures in respect to the required disclosure. The Parties agree that breach
of this Article 14 may cause irreparable injury for which monetary damages are not an adequate remedy; accordingly, each
Party may seek injunctive relief and any other available equitable remedies to enforce the provisions of this Article 14.
14.3 California Public Records Act. Notwithstanding anything to the contrary contained elsewhere in this Article 14, the Parties
understand and acknowledge that the City is a governmental entity, and that California law limits the ability of the City to shield from
public disclosure any information given to the City. In the event that the City receives a request pursuant to the Public Records Act
(or other similar law) to disclose Confidential Information belonging to Astound, the City’s sole obligations to Astound shall be: (i) to
promptly notify Astound; and (ii) to refrain from disclosing such records for a period of up to ten (10) business days to allow Astound
an opportunity to seek legal protection against disclosure from a court of competent jurisdiction. The City will not be required to
withhold requested records beyond the ten (10) business days unless it may do so based on good faith reliance upon an exception to
disclosure under the Public Records Act, or unless the City is ordered to withhold disclosure by the order of a court having competent
jurisdiction. The City may, but shall not be required, to join in any legal proceedings relating to the requested disclosure. In the event
that Astound initiates legal proceedings, or the City initiates legal proceedings or withholds requested records at Astound’s request,
Astound shall indemnify and hold the City harmless from and against all costs, attorneys’ fees, expenses, liabilities, damages or other
liabilities the City may incur due to the legal proceedings initiated at and/or the City’s withholding of records at Astound’s request.
The City shall not be liable to Astound for any loss, cost or expense relating to the disclosure of requested records if Astound fails to
obtain legal protection against disclosure and the City releases the records in good faith.
ARTICLE 15: DISPUTE RESOLUTION
15.1 Good Faith Negotiations. Except for actions seeking a temporary restraining order or injunction, in the event any controversy,
disagreement or dispute (each, a “Dispute”) arises between the Parties in connection with this Agreement, the Parties shall use good
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faith efforts to resolve the Dispute through negotiation. In the event of a Dispute, either Party may give the other Party written notice
of the Dispute (each, a “Dispute Notice”). The parties will meet and attempt to resolve the Dispute within ninety (90) days of the date
on which the Dispute Notice is delivered. All discussions occurring and documents exchanged during negotiations under this Section
are confidential and inadmissible for any purpose in any legal proceeding involving the Parties; provided that evidence that is
otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation
process. If the Parties do not resolve the Dispute within the ninety (90) day period, either of the Parties may pursue any remedy
available to it under this Agreement, at law or in equity.
15.2 Governing Law. Any action arising out of this Agreement shall be brought in the Superior Court of San Luis Obispo County,
California, regardless of where else venue may lie. The validity, interpretation, construction and performance of this Agreement, and
all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and
interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
ARTICLE 16: ASSIGNMENT
Neither Party shall assign its rights under this Agreement; provided, however, that Astound may, after providing notice to the City,
assign its interest in and to this Agreement to any entity acquiring Astound, either in whole or in part (a “Successor”) or to an Affiliate
of Astound that has the rights and powers necessary to carry out Astound’s obligations under the Agreement or in the event of a
change in control. Any Successor will be required to assume in writing all terms of this Agreement.
ARTICLE 17: REPRESENTATIONS AND COVENANTS
Each Party represents and covenants to the other Party as follows: (i) the execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly authorized; (ii) this Agreement is a valid and legal agreement binding on
such Party and enforceable in accordance with its terms; (iii) it has the power and authority to grant the rights it purports to grant and
perform the obligations it undertakes to perform pursuant to this Agreement; (iv) to the best of its knowledge and belief, it is in
material compliance with all laws, rules and regulations and court and governmental orders related to its operations; and (v) it shall
comply with all applicable laws and regulations when exercising its rights and performing its obligations under this Agreement.
ARTICLE 18: NOTICES
Notices under this Agreement shall be in writing and transmitted to the Party’s addresses specified below, or such other
addresses as the Party may specify by written notice, and will be considered given (i) when delivered in person to the recipient; (ii) five
(5) days after being deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; (iii) when delivered
by a nationally recognized courier service; or (iv) when receipt of email delivery is confirmed by the recipient:
If to the City:
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
ATTN: Information Technology Manager
Email: jerquia@slocity.org
If to Astound:
Astound Broadband, LLC
650 College Road East, Suite 3100
Princeton, NJ 08540
ATTN: Business Solutions
With a Copy to:
ATTN:
Email:
With a Copy to:
Astound Broadband, LLC
650 College Road East, Suite 3100
Princeton, NJ 08540
ATTN: Legal Department
A Party may change its address and point of contact by notifying the other Party in writing in accordance with this Article.
ARTICLE 19: GENERAL PROVISIONS
19.1 Warranty of Authority. Each of the signatories hereto warrants and represents that he or she has been duly authorized to
execute this Agreement on behalf of the Party for whom he or she purports to sign this Agreement, and that this Agreement is binding
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on such Party in accordance with its terms.
19.2 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties regarding the subject
matter hereof, and supersedes any and all prior oral or written agreements between the Parties regarding the subject matter
contained herein. Any amendment, modification, or variation from the terms of this Agreement and/or to Exhibit C shall be in writing
and shall be effective only upon mutual, written agreement of the parties. The City Manager shall have authority to approve such
amendments on behalf of the City.
19.3 Interpretation. This Agreement and each of the terms and provisions of it are deemed to have been explicitly negotiated by
the Parties, and the language in all parts of this Agreement shall, in all cases, be construed according to its fair meaning and not strictly
for or against either of the Parties hereto. The captions and headings in this Agreement are used only for convenience and are not
intended to affect the interpretation of the provisions of this Agreement. This Agreement shall be construed so that wherever
applicable the use of the singular number shall include the plural number, and vice versa, and the use of any gender shall be applicable
to all genders.
19.4 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall, for any reason
and to any extent, be found invalid or unenforceable, the remainder of this Agreement and the application of that provision to other
persons or circumstances shall not be affected thereby, but shall instead continue in full force and effect, to the extent permitted by
law.
19.5 No Joint Venture. The relationship between Astound and the City shall not be that of partners, agents, or joint venturers for
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 personnel performing this Agreement on behalf
of Astound shall at all times be under Astound’s exclusive direction and control and shall at no time be considered an employee of the
City. Neither Party shall incur nor have the power to incur any debt, obligation, or liability whatsoever against the other Party, or bind
the other Party in any manner.
19.6 No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of Astound and the City. No third
party shall be deemed to have any rights under this Agreement; there are no third party beneficiaries to this Agreement.
19.7 Survival. Those provisions of this Agreement that by their nature and import must survive the expiration or earlier
termination of this Agreement in order to be given their full force and effect shall so survive.
19.8 Standard of Performance. All actions, activities, consents, approvals and other undertakings of the Parties in this Agreement
shall be performed in a reasonable and timely manner. 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.
19.9 Exhibits. The following Exhibits are attached to this Agreement and incorporated herein by this reference:
EXHIBIT A - Map Depicting Approximate Location of City Conduit
EXHIBIT B - Map Depicting Approximate Location of Existing Astound Fiber
EXHIBIT C - Description of Licensed Dark Fibers
EXHIBIT D - Last Mile FFA Grant Application
EXHIBIT E - Insurance Requirements
19.10 Execution in Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, and all of which shall constitute one and the same instrument. Any executed documents sent
to the other Parties in portable document format (pdf) images via email will be considered the same as an original document. The
Parties consent to the use of electronic signatures
19.11 Nondiscrimination. In the performance of this Agreement, Astound agrees that it will not engage in, nor permit such
contractors as it may employ, to engage in discrimination in employment or in services offered against persons because of age, race,
color, sex, national origin or ancestry, sexual orientation, or religion of such persons.
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IN WITNESS WHEREOF, the City and Astound, intending to be legally bound hereby, have duly executed this Agreement as of the dates
set forth below.
CITY:
City of San Luis Obispo, a California municipal corporation
By
Name:
Title:
Date:
ASTOUND:
Astound Broadband, LLC, a Washington limited liability company
By
Name:
Title:
Date:
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EXHIBIT A to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES
Map Depicting Approximate Location of City Conduit
Hold for map depicting approximate location of City conduit.
Withheld from public disclosure under California Government Code §§ 7922.000 and 7929.200.
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EXHIBIT B to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES
Map Depicting Approximate Location of Existing Astound Fiber within City Conduit
Hold for map depicting approximate location of existing Astound Fiber within City conduit.
Withheld from public disclosure under California Government Code §§ 7922.000 and 7929.200.
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EXHIBIT C to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES
Description of Licensed Dark Fibers
As of the Effective Date, the Licensed Dark Fibers consist of the following fiber routes:
Name of
Segment
A Location
End Point
Z Location
End Point
Description of
Fiber
Approx.
Distance
Segment 1
[NAME OF BUILDING]
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
Police Station
1042 Walnut
SLO, CA 93401
Lat: 35.28603572971857
Long: -120.66338778923841
2 strands single
mode dark fiber approx. ___ km
Segment 2
[NAME OF BUILDING]
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
Senior Center
1455 Santa Rosa
SLO, CA 93401
Lat: 35.27914120054818
Long: -120.65702747342957
2 strands single
mode dark fiber approx. ___ km
Segment 3
[NAME OF BUILDING]
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
Fire Station 4
1395 Madonna
SLO, CA 93401
Lat: 35.25738850802565
Long: -120.69020788833546
2 strands single
mode dark fiber approx. ___ km
Segment 4
[NAME OF BUILDING]
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
Fire Station 3
1280 Laurel Lane
SLO, CA 93401
Lat: 35.266943295627414
Long: -120.63979881575827
2 strands single
mode dark fiber approx. ___ km
Segment 5
SLO Swim Center
900 Southwood Drive
SLO, CA 93401
Lat: 35.26672143468056
Long: -120.64523990677016
Fire Station 3
1280 Laurel Lane
SLO, CA 93401
Lat: 35.266943295627414
Long: -120.63979881575827
2 strands single
mode dark fiber
approx.
1.5 km
Segment 6
[NAME OF BUILDING]
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
City Hall Annex
880 Palm Street
SLO, CA 93401
Lat: 35.28267295102646
Long: -120.66313229802573
2 strands single
mode dark fiber approx. ___ km
Segment 7
[NAME OF BUILDING]
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
City Hall
990 Palm St
SLO, CA 93401
Lat: 35.28302327349759
Long: -120.66276751760837
2 strands single
mode dark fiber approx. ___ km
Segment 8 [NAME OF BUILDING] Human Resources 2 strands single approx. ___ km
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City of San Luis Obispo / Astound Broadband, LLC
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
994 Mill Street
Ste 200
SLO, CA 93401
Lat: 35.28380706670408
Long: -120.66319947569666
mode dark fiber
Segment 9
Parking Offices
1260 Chorro Street
SLO, CA 93401
Lat: 35.27870613353161
Long: -120.66152847336923
County Datacenter
976 Osos St
Fourth Floor
SLO, CA 93401
Lat: 35.28328297282323
Long: -120.66245931575781
24 strands single
mode dark fiber
approx.
1 km
Segment 9
[NAME OF BUILDING]
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
PD Annex
1106 Walnut St.
SLO, CA 93401
Lat:
Long:
__ strands single
mode dark fiber approx. ___ km
Additional Access Points:
In addition to accessing the accessing the Dark Fiber at the End Points set forth above, the City shall also have the right to access the
Licensed Dark Fibers at the additional access points listed below:
Name of Segment Additional Access Point #1 Additional Access Point #2
Segment 1
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
N/A
Segment 2
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
N/A
Segment 3
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
N/A
Segment 4
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
Long:
N/A
Segment 5
[STREET ADDRESS 1]
[STREET ADDRESS 2]
[CITY, STATE ZIP]
Lat:
N/A
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Long:
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EXHIBIT D to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES
City of San Luis Obispo Last Mile Federal Funding Grant Application
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EXHIBIT E to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES
Insurance Requirements
Without limiting Astound’s indemnification of City, Astound shall obtain, provide, and maintain at its own expense during the
term of this Agreement, policies of insurance of the type, amounts and characteristics described below and in a form
satisfactory to the City.
Workers’ Compensation Insurance as required by applicable law(s); Astound shall submit to City, along with the certificate
of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
Employer’s Liability Insurance with minimum limits of $1,000,000 each accident; Astound shall submit to City, along with the
certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
Commercial General Liability Insurance including with coverage at least as broad as Insurance Services Office form CG 00 01,
in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and
property damage related to (i) premises/operations, (ii) independent contractors, (iii) products/completed operations, (iv)
personal injury, (v) contractual liability, and (vi) explosion, collapse and underground hazards. The policy must include
contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will
not be accepted.
Automobile Liability Insurance with minimum limits of $1,000,000 each accident; and
Excess or Umbrella Liability Insurance, applicable to items (b), (c) and (d), with minimum limits of $5,000,000, per occurrence.
Proof of insurance. Astound shall provide certificates of insurance and required endorsements to City as evidence of the
insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior
to commencement of performance. Current certification of insurance shall be kept on file with City for the contract period
and any additional length of time required thereafter. City reserves the right to require certificates of insurance as evidence
that Astound has in place all required insurance policies, at any time.
Duration of coverage. Astound shall procure and maintain for the contract period, and any additional length of time required
thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or
in connection with performance by Astound, their agents, representatives, employees, or subconsultants.
Primary/noncontributing. Coverage provided by Astound shall be primary and any insurance or self-insurance procured or
maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to
contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before
the City’s own insurance or self- insurance shall be called upon to protect it as a named insured.
Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance
Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California,
with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as
a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance.
Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If Astound
maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher
limits maintained by Astound. Any available insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the City.
Notice of cancellation. Astound agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty
(30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage
for each required coverage. If any of Astound’s insurers are unwilling to provide such notice, then Astound shall have the
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responsibility of notifying the City immediately in the event of Astound’s failure to renew any of the required insurance
coverages or insurer’s cancellation or non-renewal.
Additional insured status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide
or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds
under such policies.
Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of
in writing.
Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Astound’s
insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the
insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass-through clause. Astound agrees to ensure that its subconsultants, subcontractors, and any other party who is brought
onto or involved in the project/service by Astound (hereinafter collectively “subcontractor”), provide the substantially the
same minimum insurance coverage and endorsements required of Astound. Astound agrees to monitor and review all such
coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of
this section. However, in the event Astound’s subcontractor cannot comply with this requirement, which proof must be
submitted to the City, Astound shall be required to ensure that its subcontractor provide and maintain insurance coverage
and endorsements sufficient to the specific risk of exposure involved with subcontractor’s scope of work and services, with
limits less than required of Astound, but in all other terms consistent with Astound’s requirements under this agreement.
This provision does not relieve Astound of its contractual obligations under the agreement and/or limit its liability to the
amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Astound with the
ability to utilize a subcontractor who may be otherwise qualified to perform the work or services but may not carry the same
insurance limits as required of the Astound under this agreement given the limited scope of work or services provided by the
subcontractor.
Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to
require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay
losses and related investigations, claim administration, and defense expenses within the retention through confirmation from
the underwriter.
Timely notice of claims. Astound shall give City prompt and timely notice of claims made or suits instituted that arise out of
or result from Astound’s performance under this Agreement, and that involve or may involve coverage under any of the
required liability policies.
Additional insurance. Astound shall also procure and maintain, at its own cost and expense, any additional kinds of insurance,
which in its own judgment may be necessary for its proper protection. Astound’s personal property, fixtures, equipment,
inventory, and vehicles are not insured by City against loss or damage due to fire, theft, vandalism, rain, water, criminal or
negligent acts of others, or any other cause.
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1
Item 7C: Approve Broadband Public-
Private Partnership Agreement
2
Recommendation
Authorize the City Manager to execute a
Public-Private Partnership Agreement
For Broadband Services between the
City of San Luis Obispo and Astound
Broadband, LLC.
3
How We Got Here
4
Agreement Considerations
Key issues identified through Broadband Plan community outreach and
direction from Council included:
1.Affordability and Access –Making sure broadband is available to all at
affordable pricing.
2.Funding –Utilizing grants, including private match funding, for projects
due to limited General Fund budgets.
3.Accountability –Ensuring that expansion happens in unserved or
underserved areas of the City.
5
Agreement Overview
1.Establishes a Public-Private Partnership (P3) with Astound Broadband.
2.Gives Astound access to City communications conduits and fiber to
accelerate the installation of broadband services in the City.
3.Term of 20 years, plus two optional five-year extensions.
4.Agreement is a necessary requirement for many of the broadband
infrastructure grants available to the City.
5.Grants the City the ability to use Astound fiber where available to
connect City facilities.
6
Agreement Highlights
Grant Partnership Broadband Pricing Commitments
Measurable Buildout Operation & Maintenance of City’s Fiber Ring
7
Grant Partnership
1.The City currently has no General Fund dollars committed to
broadband infrastructure, so grants are necessary to fund the work.
2.Most infrastructure grants require the City to have a partner with a
demonstrated ability to operate broadband services.
3.Astound has agreed to work with the City to secure grant funding for
broadband infrastructure as part of the partnership.
4.Astound has also agreed to provide match funding when feasible.
5.Astound agreed to provide a 20% match as part of our Last Mile
Federal Funding Account application in the amount of $1,211,011.
8
Broadband Pricing Commitments
Affordability was a key concern identified by the Broadband Plan
outreach and the Council.
9
Broadband Pricing Commitments
Astound has agreed to abide by their Last Mile Federal Funding Account
commitments of pricing not to exceed the following:
Astound’s current pricing is lower than this –
1Gbps/1Gbps service is $45/month ($0.045 per Mbps)
Astound offers an income-qualified program (Internet First) –
50 Mbps/50 Mbps for $10/month ($0.20 per Mbps)
100 Mbps/100 Mbps $40/month $0.40 per Mbps
1 Gbps/1Gbps $80/month $0.08 per Mbps
10
Measurable Buildout
Expanding access in underserved and unserved
neighborhoods was another key concern. Provisions have
been added that allow the City to be involved in planning
expansion and includes accountability for increasing access.
1.Astound and the City will work together to create an initial
set of expansion metrics to improve community access to
broadband services within the first year of the agreement.
2.Astound’s performance in meeting the agreed upon metrics
will be reviewed (and the metrics updated if necessary)
every two years for the duration of the agreement.
11
Operation and Maintenance of
City Fiber Ring
Fiber location services are key component to the successful
operations and maintenance of a fiber ring. This work is highly
specialized and there is not currently redundancy on the City
team for these services.
1.Astound will assume responsibility for marking City conduit
and fiber for 811 purposes.
2.Will relieve this duty from the City Utilities Locator.
3.Will result in quicker resolution of fiber breaks/cuts.
12
Next Steps
Complete Design and Engineering work
Receive notification of California Public Utilities Commission (CPUC) Last Mile Federal Funding Account Grant status
Apply for additional grants as they become available
13
Last Mile Federal Funding
Account Grant
1.CPUC announced the first round of recommended
awardees for last mile broadband projects on June 7, 2024.
2.CPUC announcement kicks off a rolling process that will
continue throughout the summer and fall.
3.Initial awardees are in Imperial, Lassen, and Plumas
Counties as well as Cities of Oakland and Fremont, the City
and County of San Francisco, and Plumas Sierra Telecom
in the counties of Alameda, San Francisco, and Sierra.
14
Recommendation
Authorize the City Manager to execute a
Public-Private Partnership Agreement
For Broadband Services between the
City of San Luis Obispo and Astound
Broadband, LLC.
15
Alternatives
1. Council could decide not to approve the Broadband Private Partnership Agreement with Astound.
Staff does not recommend this, as a private partner is required for most grant funding opportunities.
In addition, City staff does not have the expertise to operate a residential broadband network and would be unable to do so without a private partner.
2. Council could provide additional input to staff and direct them to return at a later date with revisions to the agreement.
Staff does not recommend this, as grant funding decisions are expected at the end of June 2024 and a private partnership will need to be in place to accept those grant funds.