Loading...
HomeMy WebLinkAboutMINUTES - 04242001 - C.8 TO: BOARD OF SUPERVISORS FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR DATE: APRIL 24, 2001 SUBJECT: CONSENT TO ASSIGNMENT OF INTEREST IN A COMMON USE AGREEMENT TO TIME WARNER TELECOM, INC. Work Order No. 5080 SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION I. Recommended Action: AUTHORIZE the Public Works Director, or his designee, to EXECUTE, on behalf of the Contra Costa County, the Contra Costa County Flood Control and Water Conservation District, and the Redevelopment Agency of Contra Costa County (referred to together as the Agencies), letters consenting to GST Telecom Inc. (GST) assigning GST's interest in the Common-Use Agreement between GST, the Agencies, and the Central Contra Costa Sanitary District (Sanitary) to Time Warner Telecom, Inc. (Time Warner). II. Financial Impact: There will be no financial impact from this action. Continued on Attachment: X SIGNATURE: c.,_ _RECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON April 24, 2001 APPROVED AS RECOMMENDED x OTHER VOTE OF SUPERVISORS x UNANIMOUS (ABSENT IV ) AYES: NOES:- ABSENT:— ABS AIN: OES:ABSENT: ABSTAIN: ' I hereby certify that this is a true and correct DRA:bj copy of an action taken and entered on the G:\GrpData\RealProp\2001-Files\BOs&RES\BO2GST Telecominc.doc minutes of the Board of Supervisors on the date shown. Orig. Div: Public Works(R/P–Dick R. Awenius) ATTESTED:_April 24. 2001 Contact: Dick Awenius (313-2227) cc: County Administrator John Sweeten, Clerk of the Board of Auditor-Controller(via R/P) Supervisors and County Administrator Jim Kennedy, Redevelopment(via R/P) By Deputy Dean Eckerson, Flood Control (via R/P) Phillip S.Althoff, Deputy County Counsel P. W.Accounting SUBJECT: CONSENT TO ASSIGNMENT OF INTEREST IN A COMMON USE AGREEMENT TO TIME WARNER TELECOM, INC. DATE: APRIL 24, 2001 PAGE: 2 III. Background and Reasons for Recommendations: Over the years, the Agencies have entered into various non-exclusive easement agreements with Sanitary to locate pipelines within the Agencies' property formerly known as the Southern Pacific Right of Way. Those easement agreements provide that if the Agencies allow other users to use portions of those easement areas conveyed to Sanitary, then those entities will enter into a Common Use Agreement with Sanitary. GST entered into such a Common Use Agreement with the Agencies and Sanitary on September 5, 1996. In 1999, GST declared bankruptcy under Chapter 11 in the United States Bankruptcy Court for the District of Delaware (Court). On September 21, 2000, the Court ordered the sale of substantially all the assets of GST, and of its subsidiaries, to Time Warner. GST's assets included the Agencies' and Sanitary's Common Use Agreement with GST. GST now desires to assign its interest in that Agreement to Time Warner. Upon review of the documents, the Agencies' consent to GST assigning its interest in the Common Use Agreement to Time Warner is warranted. IV. Consequences of Negative Action: The Agencies will not consent to the assignment of GST's interest in the Common Use Agreement to Time Warner, and will not be in accordance with the Court's order. n AFTER RECORDING, RETURN TO: RECORDED AT REQUESTDR4NALL Central Contra Costa Sanitary District Central Contra Costa Sanitary District Engineering Department Infrastructure Division 5019 Imhoff Place Martinez, CA 94553 Attention: Ricardo Hernandez COMMON USE AGREEMENT 1. DATE AND PARTIES: Effective on 9/5/96 Central Contra Costa Sanitary District, a special district in the State of California (hereinafter called "DISTRICT"), the County of Contra Costa (hereinafter called "COUNTY"), the Redevelopment Agency of Contra Costa County (hereinafter called "AGENCY), the Contra Costa County Flood Control and Water Conservation District (hereinafter called "FLOOD CONTROL DISTRICT" and hereinafter jointly, along with DISTRICT, COUNTY and AGENCY called "PUBLIC ENTITIES"), and GST TELECOM INC. (hereinafter called "USER") hereby mutually agree, consent, promise and enter into this Common Use Agreement (hereafter called "Agreement") as follows. 2. FACTS: DISTRICT agreed to purchase certain property rights and upgrade certain existing property rights from Contra Costa County and the Contra Costa County Redevelopment Agency in two separate Agreements to Purchase Property dated December 3, 1985. Flowing from such Agreements, DISTRICT owns and possesses certain property rights described in the Grants of Easement recorded in, among other places, the following Books and Pages of Official Records of Contra Costa County: 4042 OR 31, 3378 OR 506, 12652 OR 593, 12911 OR 849, 13085 OR 922, 13352 OR 324, 13358 OR 498, and Document No. 94-164411. COUNTY, AGENCY, and FLOOD CONTROL DISTRICT also have their own facilities within and without the land subject to the foregoing Grants of Easement. For the purposes of this Agreement, the term "Easements" and "DISTRICT's Easements" shall be deemed to include all of the following: (i) the property described in the recorded easements, referenced in this Section except as and until modified by subsection (ii) of this Section; (ii) the property within six (6) feet of the centerline of any DISTRICT sewer pipeline where such sewer pipelines are located outside the above s1a24%a:1common6.agm August 23. 1996 referenced recorded easements and were intended to be easement acquisitions or subject to easement corrections, as provided for in the Purchase Agreements referenced in this Section. USER desires to construct and has begun construction of a telecommunications system through property owned by COUNTY, AGENCY and FLOOD CONTROL DISTRICT and commonly referred to as the Southern Pacific Railroad Company's former right of way. Said telecommunications system is to consist of a conduit system and necessary appurtenances and fiber optic cables installed within the conduit system. The telecommunications system overlaps or overlays certain property which is the subject of DISTRICT's above referenced Easements. 3. DISTRICT hereby consents to the construction, use and maintenance by USER,COUNTY AND AGENCY of a telecommunications system consisting of conduits, cables, wires, and associated appliances (hereinafter called "Fiber Optic Facilities") within a portion of said DISTRICT's Easements, subject to DISTRICT's and other PUBLIC ENTITIES' paramount rights, as applicable, to use their property interests for all of the purposes for which they were acquired, namely, the maintenance, repair, construction, alteration, replacement, operation, reconstruction and removal of DISTRICT's and other PUBLIC ENTITIES' facilities and appurtenances thereto, and subject to the terms and conditions herein contained. DISTRICT and other PUBLIC ENTITIES by this Agreement do not, and shall not be deemed to, subordinate their rights to any use which USER or any other person or entity constructing, maintaining or using the Fiber Optic Facilities shall make of said Easements. 4. PUBLIC ENTITIES and USER will use their-best efforts-to coordinate work in-the--area subject to this Agreement, to accomplish any works of construction, reconstruction, maintenance, repairs or modifications to their respective facilities with a minimum of disruption to the others. In furtherance of this agreement, PUBLIC ENTITIES and USER agree to the following: a. Except in the case of an emergency, prior to any construction, relocation, reconstruction or major modifications within the Easements or immediately adjacent thereto, any PUBLIC ENTITY working in the Easements will provide USER, and other PUBLIC ENTITIES with notice sufficient to enable USER to protect the Fiber Optic Facilities prior to commencing such work. In the case of an emergency, the PUBLIC sla2COcommon6.agm 2 August 23, 1996 ENTITY performing the emergency work will provide USER and the other PUBLIC ENTITIES with such prior notice as is reasonable under the emergency circumstances. Provided that the PUBLIC ENTITIES comply with the foregoing, PUBLIC ENTITIES shall not be held responsible or liable for protecting in place USER's Fiber Optic Facilities when PUBLIC ENTITIES find it necessary to accomplish work for the maintenance, construction, repair, reconstruction, alteration, replacement, removal or operation of any of their respective facilities. b. Except in the case of an emergency, prior to any construction, relocation; reconstruction or major modifications within the Easements or immediately adjacent thereto, USER shall provide PUBLIC ENTITIES with specific plans and specifications for review and written approval. PUBLIC ENTITIES shall review and comment on the plans and specifications within thirty (30) calendar days of its receipt. USER shall modify the plans and specifications to incorporate PUBLIC ENTITIES' comments and resubmit them for PUBLIC ENTITIES' approval. The approval by PUBLIC ENTITIES shall not be unreasonably withheld. In the case of an emergency, the prior submission of plans and specifications shall not be required, however USER shall give PUBLIC ENTITIES such notice as is reasonable under the emergency circumstances. C. In the event either any PUBLIC ENTITY or USER identifies an emergency situation, said party shall use its best efforts to notify the other party immediately of said emergency situation. Emergency shall be defined as a situation which causes discontinuation of the operations of DISTRICT's pipelines, any other facilities of PUBLIC ENTITIES, or of the operation of USER's Fiber Optic Facilities, or a situation which presents an immediate threat to the operation of DISTRICT's pipelines, any other facilities of PUBLIC ENTITIES, or the operation of USER's Fiber Optic Facilities. An emergency shall additionally include any rupture, leakage or other damage to the sewer system or other facility which creates a present or immediate threat of creating a health hazard or dangerous condition. 5. Any damage done to DISTRICT's facilities by USER or any other person or entity constructing, maintaining or using the Fiber Optic Facilities under USER's direction and control sia241a:1common6.agm 3 August 23, 1996 shall be repaired by DISTRICT, and all reasonable costs and expenses shall be paid for by USER. Any damage to the Fiber Optic Facilities caused by the direct negligence of DISTRICT, its agents, contractor or employees shall be repaired by USER and, subject to the limitations on liability contained in Sections 8.and 9 herein, all reasonable costs and expenses attributable to the DISTRICT's negligence shall be paid for by DISTRICT. 6. USER shall relocate at USER's sole expense any or all of the Fiber Optic Facilities within the Easements in a timely manner and at no cost to DISTRICT as reasonably necessary to accommodate DISTRICT's construction, relocation, removal, alteration, replacement, enlargement, repair, maintenance, and operation of DISTRICT's pipelines. 7. When DISTRICT determines to undertake a project which shall necessitate the relocation of any or all of the Fiber Optic Facilities within DISTRICT's Easements, DISTRICT shall notify USER of the need to relocate said facility. USER shall submit a relocation plan to DISTRICT within thirty (30) calendar days of receipt of notice to do so. DISTRICT shall review and comment on the plan within thirty (30) calendar days of its receipt. USER shall modify the plan to incorporate DISTRICT's comments and resubmit the plan for DISTRICT's approval. The approval by DISTRICT shall not be unreasonably withheld. 8. USER shall defend, indemnify, save, and hold harmless the PUBLIC ENTITIES and their respective boards, directors, officers, and employees from any and all claims, costs, and liabilities for any damages, including inverse condemnation damages, and injury or death arising from or connected with the maintenance, construction, repair, reconstruction, alteration, replacement, removal or use of any or all of the Fiber Optic Facilities by USER or by any other person or entity including, but not limited to, liability arising from injury or death to members of the public using the property subject to this Agreement, except that any PUBLIC ENTITIES whose sole negligence or willful misconduct resulted in the applicable claim, costs or liabilities shall reimburse or pay USER for USER'S reasonable costs and expenses in repairing or replacing any portion of the Fiber Optic Facilities which is damaged or destroyed by any such act or omission. USER shall make good to and reimburse PUBLIC ENTITIES for any expenditures, including reasonable attorneys' fees, any of PUBLIC ENTITIES may make by reason of such aforementioned matters. s1a241a:1common6.agm 4 August 23, 1996 9. Under no circumstance shall PUBLIC ENTITIES have any liability to USER or to any other person or entity, for consequential or special damages, or for any damages based on loss of use, revenue, profits or business opportunities arising from or in any way relating to, any damage or destruction of any portion of the Fiber Optic Facilities. USER hereby forever waives and releases PUBLIC ENTITIES, and each of them, from any and all claims to consequential or special damages, and for any damages based on loss of use, revenue, profits or business opportunities arising from or in any way related to, any damage or destruction of any portion of the Fiber Optics Facilities, and hereby acknowledges that its sole remedy for any damage or destruction of any portion of the Fiber Optic Facilities by any of the PUBLIC ENTITIES, to the extent the responsible PUBLIC ENTITY is otherwise so liable under this Agreement, shall be to require the specific PUBLIC ENTITY that caused such damage or destruction to reimburse or pay USER for USER'S reasonable costs and expenses in repairing or replacing the damaged or destroyed portion. Further, USER hereby covenants to require all of its sublicensees (of whatever tier) and end users to waive and release the PUBLIC ENTITIES, and each of them, from any and all claims to consequential and special damages, and for any damages based on loss of use, revenue, profits or business opportunities arising from or related to any damage or destruction of any portion of the Fiber Optic Facilities, and to acknowledge that their sole remedy arising from or relating to any damage or destruction of any portion of the Fiber Optic Facilities by any of the PUBLIC ENTITIES shall be, to the extent the responsible PUBLIC ENTITY is otherwise so liable under this Agreement, to require the specific PUBLIC ENTITY which caused such damage or destruction to reimburse or pay USER for USER'S reasonable costs and expenses in repairing or replacing the damaged or destroyed portion. USER hereby agrees to defend, indemnify, save, and hold harmless the PUBLIC ENTITIES and their respective boards, directors, officers, and employees from any and all claims, costs, and liabilities arising from any claim which either USER or any of its sublicensees (of whatever tier) or end users has waived and released hereunder, or is required to be waived and released hereunder. USER expressly waives all rights provided by section 1542 of the California Civil Code, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. In the event that PUBLIC ENTITIES agree to the installation by DISTRICT of any future additional trunk lines, main lines or laterals which connect to DISTRICT's facilities within the slaN4 a:1common6.agm 5 August 23, 1996 Easement area, the limitation of liability for consequential or special damages, or for any damages based on loss of use, revenue, profits or business opportunities accorded to PUBLIC ENTITIES under this section shall also apply to the agreed upon future trunk lines, main lines or laterals within the Easement area. 10. USER's use of the Easements pursuant to this Agreement, and the exercising of any rights hereunder shall in no way interfere with DISTRICT's use of said lands including, but not limited to, the maintenance, repair, construction, alteration, replacement, operation, reconstruction, and removal of DISTRICT's facilities and appurtenances thereto. Nothing herein contained shall be construed as a release or waiver of any claim for compensation or damage which DISTRICT may have resulting from the construction of facilities or the alteration of facilities by USER in such a manner as to interfere with DISTRICT's use of said Easements. 11. All facilities, structures, or improvements installed or located by USER within DISTRICT's Easements shall at all times be maintained in good, safe and orderly condition to the reasonable satisfaction of DISTRICT at USER's sole cost and expense. USER hereby agrees to defend, indemnify, save, and hold harmless the PUBLIC ENTITIES and their directors, officers, and employees from any and all claims, costs, and liabilities arising from or relating to any breach or claimed breach of this section. 12. USER agrees to procure and constantly maintain in force at its expense a comprehensive general liability and vehicle insurance policy that provides protection from claims which may arise from operations or performance in the Easements. If any of the work undertaken by USER is sublet to a contractor, the USER shall require the contractor to provide evidence of the same liability insurance coverage. For all insurance, the amounts of insurance shall not be less than the following: single limit coverage applying to bodily and personal injury liability and property damage, one million dollars per occurrence. USER shall furnish PUBLIC ENTITIES with evidence of such coverage, naming PUBLIC ENTITIES, their respective boards, officers and employees as additional insureds under the policy as to the work and operations being performed in the Easements. The coverage shall not be cancelled or materially altered unless thirty (30) days written notice is first given to PUBLIC ENTITIES. slaMaAcommon6.agm 6 August 23, 1996 13. This Agreement and all of the terms and conditions herein contained shall inure to the benefit of and be binding upon the heirs, successors, and assigns of the respective parties hereto. Any revision to this Agreement will not be effective unless in writing, executed by both parties. 14. Within two years following provision by COUNTY to DISTRICT of complete and accurate records of survey of the property underlain by the DISTRICT Easements, DISTRICT hereby agrees to provide COUNTY with maps and legal descriptions, to be used in accordance with customary practice, of all of DISTRICT's current trunk lines, main lines and laterals to the DISTRICT's interceptor line, as well as may be necessary to effect the easement corrections and easement acquisitions referenced in Section 2 above. 15. Except as provided herein or in Section 9 above, this Agreement is intended to only address issues related to DISTRICT's permission concerning the construction, use and maintenance of the Fiber Optic Facilities within the DISTRICT's Easements and to no other act or use by USER or others within such Easements. In the event of a conflict between the provisions of this Agreement and the terms of the "License for the Construction and Operation of Telecommunications Systems on Specified Contra Costa County Properties," made and entered into on February 21, 1996 between USER, COUNTY, FLOOD CONTROL DISTRICT and AGENCY, the provisions of this Agreement shall control. This Agreement shall not be construed to amend or modify the COUNTY'S and DISTRICT's rights under the Easements or the Agreements to Purchase Property described in Section 2 hereof. 16. All notices (including requests, demands, approvals or other communications) under this Agreement shall be in writing. a. Notice shall be sufficiently given for all purposes as follows: (1) When delivered by first class mail, postage prepaid, notice shall be deemed delivered three (3) business days after deposit in the United States Mail. (2) When mailed by certified mail with return receipt requested, -notice is effective on receipt if delivery is confirmed by a return receipt. s1a241a:\common6.agm 7 August 23. 1996 (3) When delivered by overnight delivery by a nationally recognized overnight courier, notice shall be deemed delivered one (1) business day after deposit with that courier. (4) When delivered by telecopy or similar means, notice shall be deemed delivered one (1) business day after the day it was transmitted by telecopier or similar means, provided that a transmission report is generated by reflecting the accurate transmission of the notices. (5) When personally delivered to the recipient, notice shall be deemed delivered on the date personally delivered. b. The place for delivery of all notices given under this Agreement shall be as follows: DISTRICT: Mr. Jay McCoy Infrastructure Division Manager Central Contra Costa Sanitary District 5019 Imhoff Place Martinez, CA 94553 Telephone - (510) 228-9500 Facsimile - (510) 228-4624 COUNTY, AGENCY AND FLOOD CONTROL DISTRICT: Contra Costa County Attn: Real Property Division 255 Glacier Drive Martinez, CA 94553 Telephone - (510) 313-2220 Facsimile - (510) 313-2333 USER: GST Telecom Inc. 4511 Willow Road, Suite 2 Pleasanton, CA 94588 Attn: Arthur Ammon Vice President and General Manager Telephone - (510) 468-6405 Facsimile - (510) 468-6401 or to such other addresses and facsimile numbers as any party may respectively designate by written notice to the others. s1a241a:1common6.agm 8 August 23, 1996 17. PUBLIC ENTITIES agree that, in the event COUNTY or AGENCY enters into a direct license agreement with a user of the Fiber Optic Facility other than the USER specified in this agreement (i.e., GST TELECOM INC.,), said other user to be identified hereinafter "SUBSEQUENT FIBER OPTIC USER,"and said SUBSEQUENT FIBER OPTIC USER'sfacilities will overlay or overlap the DISTRICT's Easement, and said SUBSEQUENT FIBER OPTIC USER is neither a sub-user nor an end-user nor operating under the direction or control of GST TELECOM INC., the SUBSEQUENT FIBER OPTIC USER and DISTRICT shall enter into a Common Use Agreement in the same form as this Agreement and, absent the SUBSEQUENT FIBER OPTIC USER's execution of such Agreement, neither COUNTY nor AGENCY shall permit the SUBSEQUENT FIBER OPTIC USER to use the Fiber Optic Facility . SIGNATURES ON PAGE FOLLOWING s1a24%a1common6.agm 9 August 23, 1996 GST TELECOM INC. CENTRAL CONTRA COSTA SANITARY DISTRICT President of the Board of Directors . By: Se e a of the Distr ct COUNTY OF CONTRA COSTA RECOMMENDED FOR APPROVAL By: r� By: Dist t ns 1 H. Jame lfsberg LEM ES/& WULF ;P IF SSIONAL CORP. REDEVELOPMENT AGENCY • OF CONTRA COSTA COUTY By: ! ,..,..�.�. p. \j CONTRA COSTA COUNTY FLOOD CONTROL AND WATER. CONSERVATION DISTRICT. - r� r LT RECOMMENDED FOR APPROVAL: APPROVED AS TO FORM: Public Works Department Victor J. Westman, County Counsel By: ?11�ziy�16r DI1U J. Michael Walford, Director oun ns I ALL PARTIES MUST ATTACH APPROPRIATE ACKNOWLEDGEMENTS sla241aAcommon6.agm 10 August 23, 1996 State of Washington ) County of Clark ) Signed or attested before me oil August 26, 1996 by Earl C. Kamsky and Clifford V. Sander. 9�ENE C��ii4 Notary Public �vr�? a,\SSIQH+�G`rF� My Commission Expires: May 24, 1999 !� 'A't AOTA R Y' 1 = ' f P_UBO 40 r� 24 SH CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of a -Gr Nit ci. County.of Mt; 0 ck On ` v �clrT before me, Llfr u riy A• f'e to5: 1)7Zg1V P1(4? Date NamelI a__nd Title of Officer(e.g..'Jane Doe,Notary Public") personally appeared Gl1l" L�("-) Lt S ALL-Y,i Names)of Signers) 1t7J'personally known to me–OR–i:J proved to me on the basis of satisfactory evidence to be the person(s) whose name(s,) is/aro subscribed to the within instrument and acknowledged to me that he/s4e/t4ay executed the same in hisftter/thet-authorized capacity(aes),and that by ■ his/her/their signature(, on the instrument the person(s), BVMYX FM or the entity upon behalf of which the person(.) acted, Coma sh0�d1 executed the instrument. U1 -40TAW Pt KO-OAS"" .. mAmnAcmwtY WITNESS my hand and official seal. Wh�omrtdsston Etcplres Decertlber 28,t96s ^ 14. Signatur4hf Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached.Document Title or Type of Document: 0IL Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: I Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): CI Partner—❑ Limited I] General ❑ Partner—❑ Limited ❑ General CJ Attorney-in-Fact ❑ Attorney-in-Fact Cl Trustee ❑ Trustee 1 Viciiii ❑ Guardian or Conservator - ❑ Guardian or Conservator ❑ Other: Top of thumb here ❑ Other: Top of thumb here Signer Is Representing: Signer Is Representing: 01994 National Notary Association•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309.7184 Prod.No.5907 Reorder.Call Toll-Free t-800-876.6827 CALIFORNIA ALL-PURPOSE . CKNOWLEDGMENT No.5907 f State of CALIFORNIA County of CONTRA COSTA WM. W. GREGORY, NOTARY PUBLIC On � � �i , �I �' before me, , DATE i NAME,TITLE OF OFFICER-E.G..'JANE DOE.NOTARY PUBLIC' personally appeared MARIO M. MENESINI and JOYCE E. MURPHY NAME(S)OF SIGNER(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence / to be the person(s) whose name(s) Is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their Wm. W. Gregory K signature(s) on the instrument the person(s), oComm #1022694 () or the entity upon behalf of which the _�� ,•. :'NOTARY PU9LIC CALIFORNIA"' C •• CONTRA COSTA COUNTY C� G ,, Comm EapresADn170 1998 � person(s) acted, executed the instrument. WITNESS my hand and official seal. SIGNAT E N AR OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL 0 CORPORATE OFFICER �t�tLovt �/ ren PRESIDENT AND SECRETARY _ TITLE OR TYP F DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IES) CENIRAL CONTRA COSTA SANITARY DISTRICT SIGNER(S)OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 RESOLUTION NU. Ub- 1L4 ' A RESOLUTION AUTHORIZING EXECUTION OF A COMMON USE AGREEMENT WITH GST TELCOM, INC., CONTRA COSTA COUNTY, REDEVELOPMENT AGENCY OF CONTRA COSTA COUNTY, AND CONTRA COSTA COUNTY WATER CONSERVATION AND FLOOD CONTROL DISTRICT FOR JOINT USE OF EASEMENTS IN FORMER SOUTHERN PACIFIC RIGHT-OF-WAY BE IT RESOLVED by the Board of Directors of the Central Contra Costa Sanitary District as follows: THAT, there is hereby authorized to be executed a Common Use Agreement with GST Telecom, Inc., Contra Costa County, Redevelopment Agency of Contra Costa County, and Contra Costa County Water Conservation and Flood Control District for joint use of easements in former Southern Pacific Right-of-Way and that the President and the Secretary of the District are hereby authorized and directed to execute said agreement for and on behalf of the District; and THAT staff is authorized and directed to record said common use agreement. PASSED AND ADOPTED this 5th day of September, 1996, by the following vote:. AYES: Members: Boneysteele, Dalton, Hockett, Rainey, Menesini NOES: Members: None ABSENT: Members: None President of the Board of Directors, Central Contra Costa Sanitary District, County of Contra Costa, State of California COUNTERSIGNED: 40"u Staqry of the Centra( ontra CSanitary District, County of Contra Costa, State of California Approved as to Form: Kenton L. Alm District Counsel I, Joyce E. Murphy, Secretary of the Central Contra Costa Sanitary District, of the County of Contra Costa, State of California, do hereby certify that the foregoing is a full , true, and correct copy of Resolution No. 96-124, passed and adopted by said District Board on September 5, 1996. Le Dated: September 6, 1996 tary of thEr Di trict L From The Desk(Jf...... Dick Awemus RECEIVED JUN 2 7 2001 CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. i MAILING ADDRESS: 4001 MAIN STREET VANCOUVER.WA 98663-1896 January 22, 2001 Connie Simon Curt Swanson Senior Manager, Regulatory Central Contra Costa Sanitary District Time Warner Telecom Inc. 5019 Imhoff Place 10475 Park Meadows Drive Martinez CA 94553 Littleton, CO 80124 Re: Common Use Agreement between GST Telecom, Inc. and Central Costa County Sanitary District ("District"), the County of Contra Costa ("County"), the Redevelopment Agency of Contra Costa County ("Agency"), the Contra Costa County Flood Control and Water Conservation District ("Flood Control District"), hereinafter jointly called "Public Entities", dated September 5, 1996. Dear Mr. Swanson and Ms. Simon, On September 21, 2000, the United States Bankruptcy Court for the District of Delaware approved the sale in bankruptcy of substantially all the assets of GST Telecommunications, Inc., and its subsidiaries ("GST") to Time Warner Telecom Inc. Among those GST assets being acquired by Time Warner Telecom Inc. pursuant to the bankruptcy sale are those located in California, including GST Telecom Inc.'s rights under the Common Use Agreement dated September 5, 1996 granted to GST by "Public Entities". GST and Time Warner Telecom Inc. consummated this sale on January 10, 2001. Time Warner Telecom Inc. operates in the State of California under the name "Time Warner Telecom of California, L.P." Pursuant to the rules of bankruptcy, Central Contra Costa Sanitary District was provided with notification of the hearing to consider the sale of CST's assets to Time Warner Telecom Inc. and was afforded an opportunity to file an objection with the District Court to the assignment of the Common Use Agreement to Time Warner Telecom Inc. No such objection was submitted to the Court. Accordingly, the order entered by the Court provides that no consent to the assignment of GST Telecom Inc.'s rights under the above-referenced Common Use Agreement is required. By this letter, GST Telecom, Inc. notifies Public Entities that the Court has now approved the acquisition of its assets, including rights under said Common Use Agreement, by Time Warner Telecom Inc. By accepting assignment of the Agreement, Time Warner Telecom Inc. will assume all of GST Telecom, Inc.'s obligations and rights under the Common Use Agreement. Please indicate your acknowledgment of this assignment of the Common Use Agreement to Time Warner Telecom lnc.'s California operating entity Time Warner Telecom of California, L.P. by signing this letter in the space below and returning one original in the enclosed, stamped envelope to: www.gstcorp.com 1 GST Telecommunications. Inc. trades on the Nasdaq National Market under the symbol GSTX. 4317 NE THURSTON WAY.VANCOUVER,WA 98662 • 360-356-4700 • 360-356-2075 FAX • 4001 MAIN STREET.VANCOUVER.WA 98663 • 360-356-7100 360-356-7225 FAX 5411 E.MILL PLAIN,VANCOUVER,WA 98661 • 360-356-7400 • 360-356-7719 FAX Bruce Becker President and CEO GST Telecommunications 9300 NE Oak View Drive Vancouver, Washington 98662 The second original should be mailed, in the enclosed, stamped envelope to: Connie Simon Senior Manager, Regulatory 10475 Park Meadows Drive Littleton, CO 80124 Alternatively, you may fax the signed letter to me at 360-356-7165. Future communications regarding the above-referenced Common Use Agreement may be directed to: - - . .._...-._. .. .-. -Connie-Sirnon .._. Senior Manager, Regulatory 10475 Park Meadows Drive Littleton, CO 80124 Thank you for your cooperation in this matter. Sincerely, GST Telecommunications, Inc. By.lflazt " Senior Vice President, External Affairs Acknowledged and Agreed Acknowledged and Agreed Central Contra Costa Sanitary,District Time Warner Telecom Inc. may? Time Wainer Telecom of California LP Printed: Barbara D. Hockett Printed: Tina Davis Date: March 1, 2001 Date: Title: Board President Title: U. F. d, Cr�'�( P� G�'i�c�FQ CC06el Date: March 1 , 2001 2 • R Acknowledged and Agreed County of Contra Costa Contra Costa County Flood Control and Water Conservation District Redevelopment Agency of Contra Costa County By: -14*&r Zee--- /S,� Printed: t / TC A� AV/}Go,✓ Title: /� i ��,•,��,r Date:_ / 6 .0 UO/ 3