Loading...
HomeMy WebLinkAboutAgr 2008-01-11 (Comcast) (Somcast fij)~ ~... ~ ~ w ~rn1 I1lJ JAN 1 a 2008 lW TOWN AITORNEY'S OFFICE TOWN OF TIBURON Comeast Cable PO. Box 5147 San Ramon, CA 94583 Office: 925.973.7000 Fax: 925.901.7015 www.eomeast.eom January 9,2008 Ann R. Danforth, Town Attorney Town of Tiburon 1505 Tiburon Avenue Tiburon, CA 94920 Dear Ms. Danforth: Please see enclosed two (2) original signed documents of the following agreements between Comcast of California V, Inc. and the Town of Tiburon: 1. Clarification Letter between Comcast of California V, Inc. and the Town of Tiburon 2. Settlement Agreement between Comcast of California V, Inc. and the Town of Tiburon Please return one (1) signed original of each document to my attention. Please feel free to contact me at with any questions at (408) 426-7698. Thank you. Eddl Garcl Vice President of Government Affairs - Bay Area (Somcast Comeast Cable PO. Box 5147 San Ramon, CA 94583 Office: 925.973.7000 Fax: 925.901.7015 www.eomeast.eom January 8, 200i Margaret A. Curran Town Manager Town of Tiburon 1505 Tiburon Boulevard Tiburon, California 94920 Dear Ms Curran: The purpose of this Clarification Letter is to memorialize certain understandings and clarifications between Comcast of California V, Inc., a California corporation, (hereinafter, "Comcast") and the Town of Tiburon (hereinafter, "the Town") regarding reimbursement and compensation for Rule 20B undergrounding projects. This letter shall become effective upon its execution by Comcast and the Town, and apply to all Rule 20B undergrounding projects that Town has initiated, or will initiate during the term of the June 16, 2006 franchise agreement between Comcast and the Marin Telecommunications Association, including those the Lyford Cove project and the Del Mar project. The parties agree as follows: 1. Comcast shall not be responsible for any trenching costs associated with undergrounding projects, in the same manner as other users of affected utility poles. 2. For Town placement of substructure and associated facilities, including conduit for Comcast's exclusive use and benefit, completed and billed before June 16, 2006 as part of a Rule 20B undergrounding project, Comcast shall pay the Town the fair and reasonable cost of providing said substructure and associated facilities. 3. With respect to substructure and conduit costs associated with undergrounding districts incurred and billed on or after June 16, 2006, Comcast shall be treated in the same manner as utility providers of utility poles, currently AT&T and PG&E, as expressly provided by the Franchise Agreement between the Marin Telecommunications Authority and Comcast, dated June 16, 2006. 4. In settlement of the parties disagreement regarding their respective rights and obligations regarding the cost of undergrounding Comcast's facilities, Comcast agrees to pay the Town the sum of ONE HUNDRED NINETY FIVE THOUSAND DOLLARS AND NO CENTS ($195,000.00), per the terms of the Settlement Agreement executed by the parties. This sum includes reimbursement for expenses incurred prior to June 26, 2006, as set forth in paragraph 2. 5. Pursuant to Comcast' s franchise referenced in Paragraph 3 above, the Town will not seek reimbursement from Comcast for any undergrounding costs unless it also charges other utility providers using the utility poles in the project area for the same costs. 113 73-0002\895778v l.doc 6. Comcast will not seek reimbursement from the Town for any expense incurred In connection with the Lyford Cove and Del Mar projects prior to the date of this letter. Nothing in this letter is intended to supersede or modify any provision of the Franchise Agreement in effect between the parties. I trust that this letter accurately represents our discussions and resolutions on this matter. If the Town concurs with the representations made herein, please so indicate by executing this letter below. Very truly yours, <:1.: c.~ Comcast of California V, Inc. Accepted this L day of Town of Tiburon .,.-.--- 0~ , 200t BY:~ Its: {fX,U!J M~~L- 2 113 73-0002\895778v l.doc SETTLEMENT AGREEMENT This Agreement is made and entered into this lL day of:r ~~, 200S, by and between the City of Tiburon, California (hereinafter referred to as "Tiburon"), and Comcast of California V, Inc., a California corporation (hereinafter referred to as "Com cast") . 1.0 Recitals. This Agreement is made expressly with reference to the following agreed facts, among others: 1.1 Comcast currently operates a cable system under the terms and conditions of a franchise granted by the Marin Telecommunications Association ("MT A"). 1.2 MTA is a joint powers authority, consisting of the County of Marin, California and the following cities and towns in Marin County: Belvedere, Corte Madera, Fairfax, Larkspur, Mill Valley, Ross, San Anselmo, San Rafael, Sausalito, and Tiburon. MT A is vested by law with the authority to enter into franchise agreements with cable operators for the use of the public right of way of its member public agencies. 1.3 Tiburon is engaged in Lyford Cove and Del Mar Undergrounding Projects (the "Undergrounding Projects") that will result in certain utility lines being relocated off of existing poles. The Undergrounding Projects are classified as Rule 20B projects under rules promulgated by the California State Public Service Commission. Tiburon and Comcast have disagreed over Comcast's financial responsibility for relocating its facilities off of existing utility poles pursuant to its franchise agreements. Comcast and Tiburon have resolved their disagreements, and their resolution is reflected in a Clarification Letter executed by the parties. NOW, THEREFORE, Comcast and Tiburon, in consideration of the promises contained herein and subject to the terms and conditions set forth below, agree as follows: 2.0 Compromise and Release. This Settlement Agreement is entered into in compromise of disputed claims and rights. Specifically, Tiburon and Comcast desire to compromise, settle and discharge all disputes, claims, demands, actions or causes of action whatsoever of every kind and nature that pertain to, or arise out of, the Lyford Cove and Del Mar Undergrounding Projects, except to the extent that the parties retain certain rights and obligations as set forth in their jointly-executed Clarification Letter. Each party, therefore, hereby forever discharges and mutually releases the other party, including the other party's agents, employees, officers, and assigns of and from any and all claims, demands, rights, liability, suits, debts, liens, actions and causes of action, of every kind and nature whatsoever, at law or in equity, known and unknown, suspected and unsuspected, disclosed and undisclosed which the releasing party ever had, now has or hereafter may have by reason or any act, omission, matter, cause or thing, arising out of the allegations and assertions arising from the Lyford Cove and Del Mar Undergrounding Projects, except as specifically set forth in the Clarification Letter. It is understood and agreed that this is a compromise of disputed claims and shall not be construed as an admission of any liability of either releasing party to the other. 3.0 Payment to Tiburon. In full settlement of all claims arising from those alleged violations described in the preceding paragraph, Comcast agrees to pay Tiburon the sum of ONE HUNDRED NINETY FIVE THOUSAND DOLLARS AND NO CENTS ($195,000.00), which amount is due and payable within thirty (30) days of final execution of this Agreement. This amount is understood and agreed to represent a compromise of disputed claims and shall not be construed as an admission of any liability. 4.0 Attorney's and Consultants' Fees and Costs. Comcast and Tiburon shall each bear their own attorneys' and consultants' fees and costs. 5.0 Explained by Counsel and No Coercion. Comcast and Tiburon each acknowledge, covenant, and warrant that the contents of this Agreement have been explained to each of them by their counsel, that they are each free from any duress or coercion, economic or otherwise in connection with this matter, and that this Agreement is executed voluntarily and with full knowledge of its significance. 6.0 Only Aareements. This Agreement and the jointly executed Clarification Letter dated _, 2007 constitute the only existing and binding agreements among the parties regarding the subject matter of this Agreement, and the parties acknowledge that there are no warranties, promises or representations of any kind, express or implied, upon which the parties have relied in entering into this Agreement, or as to the future relationships of the parties, except as expressly set forth herein. 7.0 Governina Law. This Agreement shall be interpreted, governed by, and construed under the laws of the State of California. 8.0 Construction of Aareement. This Agreement is the product of negotiation and preparation by and among parties represented by counsel. Both sides and their counsel have reviewed and have had the opportunity to revise this Agreement. The parties waive the provisions of Section 1654 of the Civil Code of California and any other rule of construction to the effect that ambiguities are to be resolved against the drafting party, and the parties warrant and agree that the language of this Agreement shall neither be construed for nor against any party hereto. 9.0 Modification. No modification or change to this Agreement shall be binding or effective unless executed in writing by both sides. No oral statement shall in any manner modify or affect the terms and conditions set forth herein. 10.0 Nonwaiver. The waiver by either party of any breach of any term, covenant or condition contained in this Agreement, or any default in the performance of any obligation under this Agreement, shall not be deemed to be a waiver of any other breach or default of the same or any other term, covenant, condition or obligation. Nor shall any waiver of any incident of breach or default constitute a continuing waiver of the same. 11.0 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 12.0 Authorization. Each person executing this Agreement warrants to the other party that he or she is fully authorized to enter into this Agreement in the capacity indicated by his or her signature. COMCAST OF CALIFORNIA V, INC., Dated: " ,r~! By: sfrC wJir ftq~ ~t'VII.1l - ~r,(lj- Title: Town of Tiburon BY:~ Title: ,&-oJ ~ MA:-^I~~ ATTEST: /~/ ~: ~f/ ~ ./ t/ V ;/ (C/' . / . /. 4~ . ??cy1/t TOWN CLERK APPROVED AS TO FORM: ~ /!' ~---- ~., TOWN ATTORNEY