Resolution No. 83851
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RESOLUTION NO. 8385
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON.
APPROVING AND AUTHORIZING THE EXECUTION OF AN
AGREEMENT NO. 02 OPTICAL FIBER USE AGREEMENT AND SHORT
FORM IRU-02.1 INDEFEASIBLE RIGHT OF USE AGREEMENT BY
AND BETWEEN THE CITY OF VERNON AND CLOUGHERTY PACKING
COMPANY FOR PILOT FIBER OPTIC PROGRAM
WHEREAS, the City of Vernon ("City") has installed a fiber-
optic cable network around the perimeter of the City and has studied
the feasibility of providing excess unactiviated or dark fibers to
businesses in the City to enable such businesses to have access to
voice, data and/or video services; and
WHEREAS, the City has determined that taking advantage of
the existing fiber-optic network provides businesses in the City with
access to enhanced communication services; and
WHEREAS, the City has developed a pilot program to provide
businesses with building -to -building fiber-optic connections; and
WHEREAS, the City and Clougherty Packing Company
("Clougherty") have negotiated agreements to provide Clougherty with
the use of four new fiber optic laterals to connect two buildings of
Clougherty with strands of the City's dark fiber; and
WHEREAS, Clougherty has requested the interconnection of
three additional buildings, for a total of five buildings, and the City
and Clougherty are in the process of conducting an advanced engineering
study to interconnect the three additional buildings; and
WHEREAS, by letter dated February 11, 2004, Bruce V.
Malkenhorst, the City Administrator/City Clerk, has recommended that an
Optical Fiber Use Agreement and Short Form Indefeasible Right of Use
Agreement be approved and executed with Clougherty.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Optical Fiber Use Agreement and Short Form Indefeasible
Right of Use Agreement with Clougherty Packing Company, a copy which
is attached hereto as Exhibit "A" and made a part hereof.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor and the City Clerk to execute said Agreement for,
and on behalf of, the City of Vernon.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send one fully executed
Agreement to:
Clougherty Packing Company
Attn. James B. Stephenseon, Vice President, Finance
3049 Vernon Avenue
Vernon, CA 90058
SECTION 5: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 18th day of February, 2004.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
r
CLEONIS C. MALBURG, M yor
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8385, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday,
February 18, 2004, and thereafter was duly signed by the Mayor of the
City of Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
AGREEMENT NO. 02
OPTICAL FIBER USE AGREEMENT
By and Between
THE CITY OF VERNON
and
CLOUGHERTY PACKING COMPANY
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TABLE OF CONTENTS
Page
1. DEFINITIONS:...........................................................:...........................................................1
2.
TERM:......................................................................................................................................2
3.
TAXES:.............................................................................................................................2
4.
MAINTENANCE: .................................................................................................................. 2
5.
FREEDOM OF ACTION: ....................................................................................................... 3
6.
COMPLIANCE WITH LAWS:.............................................................................................. 4
7.
RELOCATION OF THE FACILITIES:................................................................................. 4
8.
EVENTS OF TERMINATION: .............................................................................................. 4
9.
ADMINISTRATION OF THIS AGREEMENT:................................................................... 7
10.
INDEMNIFICATION: ....................................................................................................... 7
11.
INSURANCE: .............................................................................................. ........................... 8
12.
DEFAULT:............................................................................................................................8
13.
FORCE NWEURE:................................................................................... ......................... 9
14.
ASSIGNMENT: ........................................................................................... .........................
10
15.
WAIVER: .............................................................................................................................
10
16.
RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY: .........................................
10
17.
NO THIRD -PARTY BENEFICIARIES:............................................................................
11
18.
NOTICES:.............................................................................................................................11
19.
GOVERNING LAW: ............................................................................................................
11
20.
FORUM SELECTION: ........................................................................................................
11
21.
USE OF THE CUSTOMER SYSTEM: ...............................................................................
11
22.
PLURALS:............................................................................................................................12
23.
PARTS OF AGREEMENT:................................................................................................
12
24.
COUNTERPARTS:.............................................................................................................12
25.
ACCEPTANCE TESTING: ..................................................................................................
12
26.
BILLING AND PAYMENT:..............................................................................................
12
27.
TITLE:.................................................................................................................................13
28.
ENTIRE AGREEMENT:.....................................................................................................
13
29.
RECITALS:.........................................................................................................................13
30.
SEVERABILITY:................................................................................................................13
EXHIBIT A: Short Form IRU Agreement
EXHIBIT B: Trouble Reporting Procedure
EXHIBIT C: Insurance
(i)
AGREEMENT NO. 02
OPTICAL FIBER USE AGREEMENT
THIS OPTICAL FIBER USE AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into and executed in duplicate originals, either copy of
which may be considered and used as the original hereof for all purposes, as of the
day of , 2004, between the THE CITY OF VERNON
(hereinafter referred to as the "CITY"), having its offices at 4305 Santa Fe Avenue,
Vernon, California 90058, and CLOUGHERTY PACKING COMPANY (hereinafter
referred to as "CUSTOMER"), a corporation, having an office at 3049 Vernon Avenue,
Vernon, California 90058, and which are sometimes referred to individually as "Party"
and collectively as "Parties."
RECITALS
WHEREAS, the CITY has an existing optical fiber cable system or "Cable
System" (as hereinafter defined) throughout the City of Vernon, State of California; and
WHEREAS, the CITY has excess unactivated or dark fibers in the Cable System
and is willing, from time to time, to provide such dark fibers to CUSTOMER and to grant
CUSTOMER an Indefeasible Right of Use or IRU (as hereinafter defined) in and to such
dark fibers for the purpose of providing voice, data, and/or video services; and
WHEREAS, in connection with the grant to CUSTOMER of an IRU in and to
such dark fibers, the CITY is willing to allow CUSTOMER to use certain other specified
CITY -owned property, including, but not limited to, the CITY's Cable System; and
WHEREAS, the CITY will provide fibers in the Cable System to CUSTOMER in
connection with undertaking one or more projects; and
WHEREAS, the Parties have agreed to enter into this Agreement which embodies
the mutual covenants and agreements for the long term relationship between the Parties
hereto and for each such project; and
WHEREAS, the Parties have agreed to enter into separate Short Form IRU
Agreement(s) as hereinafter defined.
NOW, THEREFORE, for and in consideration of the mutual 'covenants and
agreements set forth in this Agreement, the Parties hereto do hereby agree as follows:
1. DEFINITIONS:
1.1 The following terms, whether in the singular or in the plural, when in this Agreement
and initially capitalized, shall be the meaning specified:
a. Agreement: This Optical Fiber Use Agreement.
b. Short Form IRU Agreement: Any number of short form agreements
between the CITY and CUSTOMER which identify the specific optical
fiber strands and facilities to be provided to CUSTOMER and which set
forth the associated fees, terms and conditions for CUSTOMER'S use of
such optical fiber strands and facilities. When executed, each Short Form
IRU Agreement shall be attached hereto as Exhibit "A" and made a part
hereof.
C. CUSTOMER System: The optical fiber strands, innerduct, conduit,
building entrance facilities and associated appurtenances, to be provided to
CUSTOMER under the terms of this Agreement and the applicable Short
Form IRU Agreement(s) and the associated rights to access such fiber
strands at demarcation points as specified in the applicable Short Form
IRU Agreement(s).
d. Cable System: All hardware, including but not limited to, fiber cable,
poles, pole attached hardware, conduit, innerduct, enclosures, building and
facilities owned and operated by the CITY for its use.
2. TERM:
2.1 Unless terminated sooner in accordance with the terms and conditions of this
Agreement, the duration of this Agreement is three (3) years (hereinafter
referred to as the "Term"), commencing on the date of this Agreement
(hereinafter referred to as the "Commencement Date"). The duration of each
Short Form IRU Agreement, and any renewal or extension thereof, shall be set
forth in the applicable Short Form IRU Agreement for each portion of the
CUSTOMER System. With the written mutual consent of the two parties, this
Agreement can be renewed for two additional three (3) years terms.
3. TAXES:
3.1 The CITY shall be responsible for all taxes and fees based on the physical
location of the Cable System and/or the construction thereof in, on, across, along
or through public or private roads, highways or rights -of -way.
3.2 The CUSTOMER shall be responsible for paying all taxes, and franchise, license
and permit fees (hereinafter collectively referred to as "Tames") assessed against it
for the conduct of its business and for its use of the CUSTOMERSystem during
the Term of this Agreement.
4. MAINTENANCE:
4.1 All scheduled and emergency maintenance to and repair of the Cable System, and
all facilities through which the Cable System passes, shall be performed by or
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under the direction of the CITY with reasonable notice to CUSTOMER at CITY's
sole cost.
Except as otherwise provided in the Short Form IRU Agreement, CUSTOMER is
prohibited from performing any maintenance or repair on the Cable System or
CUSTOMER System. CUSTOMER shall have the right to have an employee or
representative available to assist the CITY in any maintenance or repair of the
CUSTOMER System. The CITY shall maintain the CUSTOMER System in
accordance with the technical specifications (hereinafter referred to as the
"Specifications") attached to and made a part of the Short Form IRU Agreement
as its Schedule-D.
a. Emergency Maintenance: The CITY shall respond to any failure,
interruption or impairment in the operation of the CUSTOMER System
within four (4) hours after receiving a report of any such failure, interruption
or impairment. The CITY shall use its best efforts to perform emergency
maintenance and repair to correct any failure, interruption or impairment in
the operation of the CUSTOMER System when reported by CUSTOMER in
accordance with the procedures set forth in Exhibit `B" attached hereto and
made a part hereof.
b. Scheduled Maintenance: The CITY from time to time will schedule and
perform periodic maintenance to protect the integrity of the Cable System
and/or CUSTOMER System to maintain dark fibers within Specification at
City's sole cost. The City will perform changes or modifications to the Cable
System and/or CUSTOMER System at CUSTOMER'S request.
CUSTOMER may request Scheduled Maintenance by delivering to the CITY
a statement of work detailing the service CUSTOMER desires to have
performed, including the time schedule for such services. Upon receipt of
such statement of work, the CITY will provide an estimate of the price and
timing of such Scheduled Maintenance. Following CUSTOMER's
acceptance of such estimate, the CITY will schedule and perform such
Scheduled Maintenance. The CITY will perform CUSTOMER requested
Scheduled Maintenance on a time -and -materials basis at the standard CITY
rates in effect at the time services are performed. CITY rates in effect will be
those identified in Schedule -A of the most recent Short Form IRU
Agreement. Such rates are subject to change at a rate not to exceed the
cumulative CPI rates of previous years since the last rate change.
5. FREEDOM OF ACTION:
Nothing in this Agreement shall restrict the CITY's right to conduct its business and
it may, without limitation, construct and install additional optical fiber cable systems
for any purpose whatsoever.
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6. COMPLIANCE WITH LAWS:
CUSTOMER shall comply with all applicable federal, state, and local laws,
ordinances and regulations pertaining to this Agreement.
7. RELOCATION OF THE FACILITIES:
CUSTOMER recognizes that, from time to time, the CITY may elect or be required
by parties other than the CUSTOMER to relocate the Cable System and/or the
CUSTOMER System, or a portion thereof The CITY shall be solely.., responsible for
all costs incurred in relocating the Cable System and/or the CUSTOMER System and
shall use its best efforts to do so in a manner that will not cause any material
interruption in CUSTOMER'S use thereof. The CITY agrees to give CUSTOMER at
least thirty (30) days prior written notice of any relocation plans.
8. EVENTS OF TERMINATION:
8.1 Condemnation
a. If at any time during the Term of this Agreement, all or any
significant portion of the Cable System or the CUSTOMER
System shall be taken for any public or quasi publicpurpose by
any lawful power or authority by the exercise of the right of
condemnation or eminent domain, either party may elect to
terminate this Agreement and/or the affected Short Form IRU
Agreement upon giving the other parry sixty (60) days prior
written notice. In the event this Agreement and/or the affected
Short Form IRU Agreement is terminated in accordance with this
section, both parties shall be entitled to participate in any
condemnation proceedings to seek to obtain compensation via
separate awards for the economic value of their respective interest
in the Cable System or CUSTOMER System.
b. Upon its receipt of a formal notice of condemnation', or taking, the
CITY shall notify CUSTOMER immediately of any condemnation
proceeding filed against the Cable System, including the
CUSTOMER System. The CITY shall also notify CUSTOMER of
any similar threatened condemnation proceeding and agrees not to
sell the CUSTOMER System to such acquiring agency, or other
party in lieu of condemnation without prior written notice to
CUSTOMER.
8.2 Damage or Destruction of the Cable System or the CUSTOMER System:
If at any time during the Term of this Agreement and/or specific Short
Form IRU Agreement all or any significant portion of the Cable System
and/or CUSTOMER System provided by specific Short Form IRU
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Agreement shall be made inoperable and beyond feasiblerepair, a party
may terminate the specific Short Form IRU Agreement upon giving (30)
days written notice to the other Party. In the event this Agreement and/or
specific Short Form IRU Agreement is terminated under this section, both
Parties shall be entitled to seek to recover the economic value of their
respective interest in the Cable System or the CUSTOMER System (1)
under any insurance policy carried by either Party, or (2) seek recovery
from any third party which may be legally responsible for causing such
damage or destruction.
8.3 Catastrophic Outage: If at any time during the Term of this Agreement,
the ability of the Cable System and/or CUSTOMER System, provided by
specific Short Form IRU Agreement, to transmit voice, data, and/or video
services is interrupted or degraded below the specifications in the Short
Form IRU Agreement Schedule-D by (1) a force majeure event that lasts
for thirty (30) consecutive days, or (2) a non -force majeure event that lasts
for five (5) consecutive days, then either Party may elect to terminate the
specific Short Form IRU Agreement upon giving thirty (30) days written
notice to the other Party. In the case of non -force majeure event, each
Party shall be entitled to seek legal remedies that may be available.
8.4- Relocation: If the CITY, in accordance with Section 7, after using its best
efforts to undertake such relocation, cannot relocate the CUSTOMER
System or affected portion thereof, CUSTOMER may terminate the
applicable Short Form IRU Agreement upon giving at least thirty (30)
days written notice to the CITY.
8.5 Obsolete Cable System: If at any time during the Term of this Agreement,
CUSTOMER can demonstrate to the CITY's satisfactionthat the Cable
System and/or any portion or portions thereof have become technically
obsolete, the CUSTOMER shall have the right to elect to terminate this
Agreement or the affected Short Form IRU Agreement by giving at least
thirty (30) days written notice to the CITY.
8.6 Poor Service: If at any time during the Term of this Agreement or a
specific Short Form IRU Agreement, CUSTOMER can demonstrate to the
CITY's satisfaction the Cable System and/or any portions thereof, fail to
perform in accordance with the specifications set forth in',Schedule-D of
the affected Short Form IRU Agreement over a period of at least three (3)
consecutive months, and the CITY's efforts during this period have failed
to restore the Cable System to the required Specifications, then the
CUSTOMER has the right to terminate this Agreement or the affected
Short Form IRU Agreements by giving at least thirty (30) days written
notice to the CITY.
Notwithstanding any provision contained in this Agreement to the
contrary, the CITY shall have the right to terminate any Short Form IRU
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Agreement upon three (3) months written notice to CUSTOMER if the
CUSTOMER System provided by such Short Form IRU Agreement is
needed in connection with the CITY's telecommunications needs related
to CITY business. At the time of such notice of termination, the CITY
shall waive the remaining annual payment of the Short Form IRU
Agreement that the CITY elects to terminate. If the CITY terminates, it
will use its best efforts to relocate CUSTOMER System or any segment
under the affected Short Form IRU Agreement, and if a satisfactory
relocation reroute can be identified, CUSTOMER and CITY shall enter
into a new Short Form IRU Agreement.
8.7 CUSTOMER Sole Discretion: Notwithstanding any provision contained in
this Agreement to the contrary, at any time after the effective date of this
Agreement, CUSTOMER shall have the option, in its sole discretion and
for any reason, to terminate this Agreement or any Short Form IRU
Agreement upon three (3) months prior written notice to the CITY.
8.8 Termination Settlement Charges:
a. No termination, as provided for in the Agreement, shall be
effective until the CUSTOMER has paid all required sums due
under any affected Short Form IRU Agreement up to and including
the effective date of termination and Termination Settlement
Charges, if any, as defined in Sections 8.8.b, 8.8.c and 8.8.d.
b. In the event CUSTOMER elects to terminate this Agreement
and/or any Short Form IRU Agreement under the terms of the
provisions of Section 8.7, the annual payments shall be
recalculated to reflect the termination date and, therefore, the new
Term of the Agreement. The recalculated annual payments shall
use the appropriate discount or premium and shall be retroactive to
all CUSTOMER IRU payments from commencement to the
termination of each Short Form IRU Agreement. The cumulated
difference between the annual IRU payments made by the
CUSTOMER to the CITY under the CUSTOMER's originally
selected Term of the Agreement (including any discounts) and the
recalculated payments applicable for the effective Term of the
Agreement shall hereinafter be known as "Termination Adjustment
Charge." The Termination Adjustment Charge shall apply as part
of the Termination Settlement Charges.
C. Furthermore, in the event CUSTOMER elects to terminate any
Short Form IRU Agreement under the terms of the provisions of
Section 8.7, a termination charge of half the remaining payments
due if the Short Form IRU Agreement were to reach its full Term
shall apply as part of the Termination Settlement Charges.
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d. The Termination Settlement Charges shall be calculated as
follows: TSC = TAC + %2 (remaining $ of original Short Form
IRU Agreement).
e. CITY shall transfer the ownership of the demarcation patch panels
at end of the initial Term. The CITY shall remove CUSTOMER
system from CITY cable system by physically removing optical
fiber cables from the splicing enclosure on public rights -of -way to
the demarcation point leaving the patch panel in place at
CUSTOMER's request.
9. ADMINISTRATION OF THIS AGREEMENT:
9.1 Within thirty (30) calendar days after the effective date of this Agreement,
CUSTOMER and the City Administrator shall designate, by written notice
to the other, a representative who is authorized to act in the respective
Party's behalf with respect to those matters delegated to the authorized
representatives. Each Party may designate an alternate representative with
full authority to act in the absence of the authorized representative. Each
Party shall have the right to change its representative or alternate by
written notice.
9.2 The authorized representatives shall have the following responsibilities,
among others:
a. Perform those functions and duties assigned to them in this
Agreement.
b. Review and attempt to resolve any disputes between the Parties
arising under this Agreement.
C. Arrange for the development and completion of procedures to
implement the provisions of this Agreement.
9.3 Any expenses incurred by the authorized representative in connection with
his/her duties shall be paid by the Party he/she represents.
9.4 The authorized representative shall have no authority to modify this
Agreement.
10. INDEMNIFICATION:
10.1 The CUSTOMER undertakes and agrees to indemnify, defend and hold
harmless the CITY, the Department of Community Services & Water, the
City Council of the CITY, and all of its officers and employees, and, at the
option of the CITY, defend the CITY, and any and all of its Boards,
officers, agents, representatives, employees, assigns and successors in
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interest from and against any and all suits and causes of action, claims,
charges, damages, demands, judgments, civil fines and penalties, or losses
or any kind or nature whatsoever, for death, bodily injury or personal
injury to any person, including CUSTOMER's employees and agents, or
damage or destruction to any property of either party hereto, or third
persons in any manner arising by reason of the negligent acts, errors,
omissions or willful misconduct incident to the performance of this
Agreement on the part of the CUSTOMER, or the CUSTOMER's officers,
agents, employees or subcontractors of any tier, except for the active
negligence or willful misconduct of the CITY, its officers, agents,
representatives or employees.
10.2 Except for any payment due to the CITY in accordance with Section 25 of
this Agreement, neither party shall be liable for any indirect, special,
punitive or consequential damages, (including, but not limited to, any
claim for loss of services) arising under this Agreement or from any
breach or partial breach of the provisions of this Agreement or arising out
of any act or omission hereto, its employees, contractors and/or agents.
The CUSTOMER shall include in any agreement with any third party
relating to the use of the Cable System or the CUSTOMER System a
waiver by such third party of any claim for indirect, special, punitive or
consequential damages (including, but not limited to, any claim from any
CUSTOMER for loss of services) arising out of or as a result of any act or
omission by either party hereto, its employees, contractors and/or agents.
The parties' respective obligations to include such a provision waiving
indirect, special, punitive or consequential damages in any agreement with
any third party shall be subject to any and all regulatory or other legal
limitations, as well as applicable tariffs.
11. INSURANCE:
CUSTOMER agrees to provide insurance in the amounts and forms specified in Exhibit
" C," which is attached hereto and made a part hereof by reference. CUSTOMER shall
submit to the CITY documentation indicating compliance with these minimum
requirements no less than one (1) day prior to the beginning of performance under this
Agreement.
12. DEFAULT:
12.1 CUSTOMER shall not be in default under this Agreement or in breach of
any provision hereof unless and until the CITY shall have given
CUSTOMER written notice of a breach and CUSTOMER shall have
failed to cure the same within thirty (30) days after receipt of a notice,
other than any default in payment which must be cured within fifteen (15)
business days after receipt of a notice; provided, however, that where such
non -monetary breach cannot reasonably be cured within such thirty (30)
H.,
day period, if CUSTOMER shall proceed promptly to cure the same and
prosecute such curing with due diligence, the time for curing such breach
shall be extended for a reasonable period of time to complete such curing.
Upon the failure by CUSTOMER to timely cure any such breach after
notice thereof from the CITY, the CITY shall have the right to take such
action as it may determine, in its sole discretion, to be necessary to cure
the breach or terminate this Agreement or pursue such other remedies as
may be provided by law or in equity.
12.2 The CITY shall not be in default under this Agreement or in breach of any
provision hereof unless and until CUSTOMER shall have given the CITY
written notice of such breach and the CITY shall have failed to cure the
same within thirty (30) days after receipt of such notice; provided,
however, that where such breach cannot reasonably be cured within such
thirty (30) day period, if the CITY shall proceed promptly to cure the same
and prosecute such curing with due diligence, the time for curing such
breach shall be extended fora reasonable period of time to complete such
curing. Upon the failure by the CITY to timely cure any such breach after
notice thereof from CUSTOMER, CUSTOMER shall have the right to
take such action as it may determine, in its sole discretion, to be necessary
to cure the breach or terminate this Agreement or pursue such other
remedies as may be provided at law or in equity.
12.3 If CUSTOMER or the CITY, as the case may be, shall file a petition in
bankruptcy or for reorganization or for an arrangement pursuant to any
present or future federal or state bankruptcy law or under any similar
federal or state law, or shall be adjudicated as bankrupt or insolvent, or
shall make a general assignment for the benefit of its creditors, or shall
admit in writing its inability to pay its debts generally as they become due,
or if any involuntary petition proposing the adjudication of CUSTOMER
or the CITY, as the case may be, as a bankrupt or its reorganization under
any present or future federal or state bankruptcy law or any similar federal
or state law shall be filed in any court and such petition shall not be
discharged or denied within ninety (90) days after the filing thereof, or if a
receiver, trustee or liquidator of CUSTOMER or the CITY, as the case
may be, of all or substantially all of the assets of CUSTOMER or the
CITY, as the case may be, and shall consent to or acquiesce in such
appointment, then the other party hereto may, at its sole option,
immediately terminate this Agreement upon written notice.
13. FORCE MAJEURE:
Neither party shall be considered to be in default in any of its obligations under this
Agreement when a failure of performance shall be due to an uncontrollable force. The
terms "uncontrollable force" shall mean any cause beyond the control of the party
affected, including, but not restricted to, flood, earthquake, storm, fire, lightening,
epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor material
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shortage, sabotage, federal, state, or municipal action, statute, ordinance, or regulation,
embargoes of the United States Government or any other government, which by exercise
of due diligence such party could not reasonably have been expected to avoid and by
exercise of due diligence has been unable to overcome. Either party rendered unable to
fulfill any of its obligations under this Agreement by reason of an uncontrollable force,
shall give written notice within five (5) business days of such fact to the other party and
shall exercise due diligence to remove such inability with all reasonable dispatch.
14. ASSIGNMENT:
14.1 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors or assigns; provided,
however, that no assignment hereof or sublease, assignment or licensing
(hereinafter collectively referred to as a "Transfer") of any rights or
obligations hereunder shall be valid for any purpose without the prior
written consent of each party hereto, provided, further, however, that
without such consent, CUSTOMER shall have the right to assign this
Agreement to any parent, subsidiary or affiliate of CUSTOMER or to any
person, firm or corporation which shall control, be under the control of, or
be under common control with CUSTOMER or to any person, firm or
corporation into or with which CUSTOMER may be merged or
consolidated or which purchases all or substantially all of the assets or
stock of CUSTOMER.
14.2 In the event of any assignment or Transfer by either party undertaken
pursuant to Section 14.1 herein, the assigning or transferring party shall
remain liable for all its obligations under this Agreement, unless: (a) the
other party consents to release by written instrument, the assigning or
transferring party from such obligations, and (b) the assignee or transferee
shall have affirmatively assumed in writing all of the obligations of the
assigning or transferring party under this Agreement.
15. WAIVER:
Any waiver at any time by either Party of its rights with respect to a default under this
Agreement, or with respect to any other matters arising in connection with this
Agreement, shall not be deemed a waiver with respect to subsequent default or other
matter.
16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY:
Except where specifically stated in this Agreement to be otherwise, the duties,
obligations, and liabilities of the Parties are intended to be several and not joint or
collective. Nothing contained in this Agreement shall be construed to create an
association, trust, partnership, or joint venture or impose a trust or partnership duty,
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obligation, or liability on or with regard to either Party. Each Party shall be individually
and severally liable for its own obligations under this Agreement.
17. NO THIRD -PARTY BENEFICIARIES:
This Agreement shall not be construed to create rights in, or to grant remedies to, any
third party (except as specified herein) as a beneficiary to this Agreement or of any duty,
obligation or undertaking established herein.
18. NOTICES:
Any written notice under this agreement shall be deemed properly given if sent by
registered or certified snail, postage prepaid, or by nationally recognized overnight
delivery service or by facsimile to the address specified below, unless otherwise provided
for in this Agreement:
CITY: THE CITY OF VERNON
ATTN: BRUCE V. MALKENHORST
CITY ADMINISTRATOR
4305 SANTA FE AVENUE
VERNON, CA 90058-0805
CUSTOMER:
19. GOVERNING LAW:
The validity, interpretation and performance of this Agreement shall be controlled and
construed under the laws of the State of California.
20. FORUM SELECTION:
Any action brought relating to this Agreement shall be brought and held exclusively in a
State Court in the County of Los Angeles, California.
21. USE OF THE CUSTOMER SYSTEM:
CUSTOMER shall have exclusive control over its provisioning of voice, data, and/or
other video services and other services including, without limitation, CUSTOMER
premise and nodal electronics, electronics installation, configuration, operation,
maintenance and monitoring.
11
22. PLURALS:
In construction of this Agreement, words used in the singular shall include the plural and
the plural the singular, and/or is used in the inclusive sense, in all cases where such
meanings would be appropriate.
23. PARTS OF AGREEMENT:
All Short Form IRU Agreements, attachments, exhibits and appendices attached hereto
shall be deemed a part of this Agreement, and shall have full force and effect. Short
Form IRU Agreements shall be identified and named with a numeric designator by
chronological date of execution, e.g., -01, Short Form IRU Agreement, and attached
chronologically following this Agreement and its exhibits and made a part of this
Agreement.
24. COUNTERPARTS:
This Agreement may be executed in any number of counterparts, each and all of which
shall be deemed for all purposes to be one agreement. However, this Agreement shall not
become effective unless and until all Parties hereto have executed either the original or a
counterpart of the Agreement.
25. ACCEPTANCE TESTING:
The CITY will submit an acceptance testing plan to CUSTOMER for approval within
thirty (30) days of signing any Short Form IRU Agreement. CUSTOMER will review
and provide comments within twenty (20) days of receipt. The CITY and CUSTOMER
will jointly agree on the final acceptance testing plan, such plan to include non-
destructive attenuation tests and optical time domain reflectometer tests on each segment.
CUSTOMER shall accept each deliverable in writing within seven (7) days of successful
completion of the final acceptance testing plan.
26. BILLING AND PAYMENT:
26.1 The CITY shall invoice CUSTOMER for all fees and charges hereunder
as determined by the Short Form IRU Agreement(s) and this Agreement
as follows:
a. CITY shall invoice CUSTOMER per Short Form IRU upon
CUSTOMER acceptance of each deliverable.
b. CUSTOMER shall submit payment in full within thirty (30) days
after receipt of the CITY's invoice.
C. CUSTOMER agrees to pay the CITY the fees set forth in the Short
Form IRU Agreement payable on a quarterly basis of the calendar
12
year. Payment shall be made in advance by the 15th day of the
month preceding the beginning of the quarter.
d. Notwithstanding any provision contained in this Agreement to the
contrary, CUSTOMER shall have the right to dispute any fees,
charges, costs, expenses or payments for which it is invoiced by
the CITY. In the event CUSTOMER disputes any invoice, or
portion thereof, received from the CITY, CUSTOMER shall
promptly pay that portion of the invoice which is undisputed.
CUSTOMER shall have the right to withhold payment of any
disputed amount, provided that CUSTOMER gives written notice
to the CITY of the amount so disputed and the reason for the
dispute on or before the due date of the invoice.
27. TITLE:
CUSTOMER agrees that all right, title, and interest in all the CUSTOMER System
provided by the CITY hereunder and as specified in the Short Form IRU Agreement shall
at all times remain exclusively with the CITY. The CITY agrees that all right, title and
interest in CUSTOMER System associated equipment provided by CUSTOMER as
specified in the Short Form IRU Agreements shall at all times remain exclusively with
CUSTOMER. The CITY acknowledges that CUSTOMER has contracted for the
indefeasible right to use the CUSTOMER System at the time CUSTOMER executes each
Short Form IRU Agreement and agrees that it will not take any action which shall be
inconsistent with CUSTOMER's IRU interest.
28. ENTIRE AGREEMENT:
This Agreement constitutes the complete and final expression of the agreement of the
Parties and is intended as a complete and exclusive statement of the terms of their
agreement and supersedes all prior and contemporaneous offers, promises,
representations, negotiations, discussions, communications and agreements which may
have been made in connection with the subject matter hereof. All exhibits and schedules
are incorporated by reference. CUSTOMER represents that in entering into this
Agreement it has not relied on any previous representations or understandings of any
kind or nature.
29. RECITALS:
All recitals are incorporated by reference.
30. SEVERABILITY:
If any portion of this Agreement shall be held by a court of competent jurisdiction to be
invalid, void, or otherwise unenforceable, the remaining provisions shall remain
enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each portion of
13
this Agreement containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or enforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, void, or unenforceable.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of this day and year first above
written.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
ERIC T. FRESCH, City Attorney
LI-A
CITY OF VERNON
LEONIS C. MALBURG, Mayor
CUS' *Y'E
By:
Print Name: A the RqAkksC�
Title: Ili E10 T Fi(i)4AJe —<'
i
By:
Print Name D1.
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Title:i�
14
EXHIBIT
EXHIBIT "A"
ALL SHORT FORM IRU AGREEMENTS
AN is :�
SHORT FORM IRU-02.1
Indefeasible Right of Use Agreement
THIS SHORT FORM IRU-02.1 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein
referred to as "IRU-02.1 Agreement") is made, entered into and executed in duplicate originals,
either copy of which may be considered as the original hereof for all purposes, as of this
day of , 2004, between the City of Vernon (hereinafter referred to
as the "CITY") having its offices at 4305 Santa Fe Avenue, Vernon, California 90058, and
Clougherty Packing Company (hereinafter referred to as "CUSTOMER"), a corporation with
its office at 3049 Vernon Avenue, Vernon, California 90058, and upon execution shall be a
part of the CUSTOMER Optical Fiber Use Agreement ("Agreement") dated
RECITALS
WHEREAS, the CITY leases certain optical dark fiber strands and associated facilities in
its Cable System for voice, data, and/or other video services, and CUSTOMER desires to lease
such Cable System components for its business; and
WHEREAS, the CITY optical fiber strands and facilities used by CUSTOMER are
identified in the Agreement as CUSTOMER System and likewise shall be referred to as
"CUSTOMER System" in this IRU-02.1 Agreement.
THEREFORE, in consideration of the mutual agreements herein, the parties agree as
follows:
The CITY hereby grants to CUSTOMER an Indefeasible Right of Use (IRU) of the
following CITY Cable System components:
Fiber strand numbers 1 through 4 of the CITY Cable System terminating in each
CUSTOMER facility and dedicated for CUSTOMER exclusive use, as identified in
IRU-02.1-Schedule—E; and
These individual CITY Cable System components collectively shall be the CUSTOMER
System for this IRU-02.1 Agreement. The CUSTOMER System shall be inclusive of the
CITY'S fiber optic Cable System between and including the CITY'S sides of the
originating and terminating demarcation points.
2. The CITY will construct, install, and/or provide the CUSTOMER System for
CUSTOMER'S use in accordance with the terms of the Agreement and this IRU-02.1
Agreement. The CITY shall use reasonable efforts to comply with the project schedule
that is mutually agreed by both Parties.
3. CUSTOMER'S indefeasible right of use in each component of the CUSTOMER System
shall commence when CUSTOMER notifies the CITY that it accepts, in accordance with
the Section 25 of the Agreement, that component of the CUSTOMER System that meets
the specifications set forth in the attached IRU-02.1-Schedule-D and operating
effectively, and shall be valid for the remainder of the Term.
During the Term, the CITY reserves the right to increase the recurring IRU fees at a rate
not to exceed the Consumer Price Index, All Urban Consumers (CPI-U), published by the
United States Department of Labor, Bureau of Labor Statistics (1982-84=100). The
recurring fee may be increased on each anniversary of the effective date of the IRU-02.1
Agreement in which CUSTOMER will receive the IRU, by the increase, if any, in the
CPI-U for the preceding twelve (12) month period. In the event such index shall cease to
be computed or published, CITY may, in its reasonable discretion, designate a successor
index to be used in determining any increase to the recurring fee.
4. The CITY shall provide the following items for the CUSTOMER System service:
4.1 A demarcation point at each CUSTOMER access location. The demarcation
points consist of City furnished and installed patch panels on the
CUSTOMER's existing 19" racks;
4.2 Optical fiber cable extension segments from splice enclosure in the public
Right of Way to the demarcation point in CUSTOMER access location; and
4.3 One innerduct which will house fiber optic cable extension segments, inside
the CUSTOMER furnished conduit, where applicable, from the conduit
entry to the demarcation point.
5. CUSTOMER shall provide the following items for the CUSTOMER System service:
5.1 Provide the CITY access to the CUSTOMER's existing conduit system
leading to the demarcation point inside the CUSTOMER location(s);
5.2 Provide the CITY access to the demarcation room for placement of necessary
demarcation accessories and perform Scheduled or Emergency maintenance;
5.3 Bring its connecting optical fiber patch cords to the demarcation connection
points;
5.4 Specify the type of optical connector needed at the demarcation termination
point. The CITY shall install ultra SC type connector unless otherwise
specified by the CUSTOMER; and
5.5 CUSTOMER shall be responsible for purchase, installation and maintenance
of any and all electronic, optronic and other equipment, materials and
facilities used by CUSTOMER on the CUSTOMER side of the demarcation
points in connection with the operation of the CUSTOMER System, none of
which is included in this IRU-02.1 Agreement.
2
6. The charges and application rules are identified in IRU-02.1-Schedule —B. A pro forma
invoice setting forth a summary of the one-time non -recurring fee elements and the base
charges for the monthly recurring fee elements under the IRU-02.1 Agreement is attached
hereto as IRU-02.1-Schedule-C. The payments and charges shall be in accordance with
Section 26 of the Agreement and as specifically identified in the following
subparagraphs:
6.1 CUSTOMER shall pay a one time advanced engineering fee of (waived)
which payment is due upon receipt of CUSTOMER's written request for service
and shall be credited against the connection fee.
6.2 CUSTOMER shall pay a one time construction and installation fee of
(waived) which payment is due upon CUSTOMER acceptance.
6.3 One-time lateral connection charge of (waived_ which payment is due
upon CUSTOMER acceptance.
6.4 CUSTOMER shall pay quarterly IRU fee payments based on a monthly base rate
of $680.00 with first quarterly payment due to the CITY upon CUSTOMER
acceptance.
6.5 CUSTOMER shall pay one-time building or external network service connection
and disconnection charges for each building service added or deleted after the
initial establishment and cutover of a CUSTOMER System cable segment. One-
time CUSTOMER service charges also apply if the CUSTOMER requires
installation of a new distribution ring or concentrator in an already established
Cable System or Customer System distribution cable segment, rearrangement of
existing service connections, and rearrangement of a ring or concentrator
operation.
6. All maintenance and repair functions on the CUSTOMER System and all facilities
through which the CUSTOMER System passes, including, but not limited to, the CITY's
Cable System, shall be performed by the CITY.
7.1 Section 4 of the Agreement applies.
7.2 CITY shall maintain the CUSTOMER System to the specifications provided in
IRU-02.1-Schedule—D.
7.3 CITY shall provide to the CUSTOMER a twenty-four (24) hour a day, three
hundred sixty-five (365) days per year, trouble -reporting telephone number.
CUSTOMER shall provide the CITY a twenty-four (24) hour a day trouble
coordination telephone number.
7.4 Any impairment or outage reasonably suspected to be caused by CUSTOMER
System components on the CITY'S side of the demarcation point shall require a
response from the CITY. During CUSTOMER System impairments or outages
affecting CUSTOMER'S service, CITY shall keep CUSTOMER advised and
updated. The CITY'S personnel will be on site no later than four (4) hours from
notification by CUSTOMER of an impairment or outage materially affecting
service.
7.5 CUSTOMER shall be charged with any false maintenance call outs at the
standard CITY rate in effect at the time services are performed. The CITY'S
rates in effect at the time of execution of this IRU-02.1-Schedule-A and are
subject to change.
7.6 CUSTOMER shall be responsible for all installation, configuration, monitoring
and maintenance associated with any CUSTOMER owned active electronics
operating on the dark fiber leased strands located on the CUSTOMER side of the
demarcation points.
7. The CITY will grant a credit allowance on monthly recurring IRU charges for service
interruption calculated and credited in one (1) hour increments. A service interruption
will be deemed to have occurred only if.
8.1 Service becomes unusable to CUSTOMER as a result of failure of CITY
equipment, facilities, or personnel used to provide the service; and
8.2 The interruption is not the result of:
8.2.1 The negligence or acts of CUSTOMER or its agents, employees suppliers
or contractors;
8.2.2 The failure or malfunction of non -CITY equipment, facilities, or system;
8.2.3 Any circumstances or causes beyond the control of the CITY; or
8.2.4 A service interruption caused by scheduled maintenance, alteration, or
completion of such maintenance or alteration beyond normal time
requirements.
8.3 Such credits will accumulate during a calendar year and be credited against the
CUSTOMER invoiced service charge for the next quarter and will apply only to
those segments experiencing the service interruption.
9. This IRU-02.1 Agreement, including IRU-02.1-Schedule-A, IRU-02.1-Schedule-B, IRU-
02.1-Schedule-C, IRU-02.1-Schedule-D, IRU-02.1-Schedule-E, which are attached are
hereby incorporated into the Agreement, dated , 2004 and all of
which constitutes the entire agreement between the Parties with respect to the subject
matter. This IRU-02.1 Agreement cannot be modified except in writing signed by both
Parties.
4
IN WITNESS HEREOF the Parties have executed and delivered this IRU-02.1 .
Agreement effective the day and year first above written:
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
ERIC T. FRESCH, City Attorney
CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
CUSTO R
?tName S 56 C.8&J
Title: k C ,F S 1 17�iEAF1 / i •C� gAkE
By:L W60.
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Print Name:
Title:
5
IRU-02.1-SCHEDULE A
IRU-02.1-SCHEDULE B
DARK FIBER PRICING
1.0 APPLICABILITY:
IRU-02.1-Schedule-B
The schedule specifies that connection fees must be agreed upon by the customer prior
to connection of its facilities or buildings to the City's dark fiber network Cable
System. The schedule also specifies the monthly usage fees in return for the
privilege of using the Cable System.
2.0 TERRITORTY:
Within the limits of the City of Vernon.
3.0 FEES:
The IRU Agreement Fees consist of:
A) One-time non -recurring fee elements. They include:
1) Advanced Engineering Fees:
The advanced engineering fee is a non-refundable fee required for
preparing an engineering study, which produces a detailed estimate of the
cost and time required for the City to provide customers dark fiber
connectivity. If the project is constructed, the advanced engineering fee
will be credited against the connection fee.
Advanced Engineering Fee $ 500.00
Special Condition By Estimate
2) Dark Fiber Lateral Connection Fees:
The dark fiber lateral connection fee includes the cost of installing lateral
connections and associated equipment as identified in the advanced
engineering study. The lateral connection starts from an aerial or
underground splice enclosure on the fiber backbone and terminates at the
customer demarcation point. At the demarcation point, the City will place
an accessible patch panel where the customer can have access to the
terminated IRU dark fiber strands.
3) Construction and Installation Fees:
If the point to point connection between the customer buildings cannot be
installed in existing conduit, or attached to existing poles from the first
demarcation point to the second demarcation point, then the customer may
RM
IRU-02.1-Schedule-B
request that the City install new poles, conduit and cable at the customer's
sole expense.
4) Future re -configuration Fees requested by the customer:
The reconfiguration fee includes the costs associated with the
connection/disconnection/re-arrangement of the CUSTOMER System.
The fee shall apply for the initial establishment and cutover of a
customer's point-to-point or distribution Cable System (ring or segment).
The customer shall pay for all services added or deleted, or rearranged
subsequent to the cutover date and shall pay for all connection services.
The fees are:
Service Addition: $300.00 per strand
Service Deletion: $150.00 per strand
Service Re -arrangement: Project specific.
5) Other Fees:
5.1 Early Termination Fees:
Early termination of the Agreement is subject to the Termination
Settlement Charges described in Section 8.8 of the Optical Fiber Use
Agreement.
5.2 Annual Fee Adjustments:
All fees are subject to annual consumer price index (CPI) adjustments
at each anniversary of the effective date of the IRU Agreement.
B) Monthly recurring fee elements. They include:
1) Building Entry Management Fees:
The Building Entry Management Fee is a monthly recurring fee
associated with the lateral cable management practices. It covers the
routine and preventive maintenance practices associated with the lateral
connections. The monthly fees are $100.00 per building entry.
2) Dark Fiber backbone IRU Fees:
The table below describes the City Fiber Optic Backbone strand pricing
for a point-to-point building connections. The monthly rate per strand
varies depending on the system availability and other factors such as
quantity of fiber strands requested, the length of the fiber path, and the
topology.
IRU-02.1-Schedule-B
PRIMARY
PATH -
PROTECT (REDUNDANT)PATH
Fiber
Quantities
First Mile per strand per
month
Additional miles per
strand per month
First Mile per
strand per month
Additional miles per
strand per month
1-2
$ 180
$ 90
$ 90
$ 45
3-4
$ 140
$ 70
$ 70
$ 35
5-6
$ 100
$ 50
$ 50
$ 25
7-12
$ 40
$ 20
$ 20
$ 10
The discounted pricing applies when a customer signs up for more than
one pair of fiber strands. Customer can sign up for a protect path point-to-
point circuit to obtain physical redundancy in the Cable System for its
primary path point-to-point circuit. The primary and protect path circuit
end points terminate in the same demarcation point at each customer site.
A complete circuit consists of two strands of a fiber optic cable terminated
at each customer site demarcation point, there shall be two ports available
each for the primary and protect paths for the customer to use.
The following discounts apples
a) Route Length Discount: The Route length discount ranges from $0 to
$90.00 per fiber mile per month. For the purpose of this IRU-02.1
Agreement, a "Route" is that portion of the Cable System that extends
between the customer points of connections. The Route will include
lateral extension into the customer building, as identified in IRU-02.1-
Schedule-E. Route miles shall be actual number of fiber strand miles
connecting customer connection points, identified as customer System.
b) Fiber quantity discount: The discount for quantities of fiber leased on a
specific Route ranges from $0 to $140.00.
c) Ring topology discount: The ring topology discount ranges from $0 to
$135.00 per fiber mile per month.
I: c
IRU-02.1-SCHEDULE C
IRU-02.1-Schedule-C
SUMMARY
IRU-02.1 Agreement INVOICE
The summary IRU-02.1 Agreement Invoice provides a summary of all
transactions of this IRU-02.1 Agreement.
C.1 Transactions Invoice:
ITEM Description IRU Fees
1 One-time Advanced Engineering Fee Waived
2 One-time Construction and Installation Fee Waived
3 One time Connection Fee Waived
4 Quarterly IRU-02.1 Base Charges $ 2,040.00
(March 2004 through May 2004)
Total IRU-02.1 Agreement Fees
$ 2,040.00
Note: Transaction invoices reflect the services purchased from the CITY by the
CUSTOMER and shall be the amount due the CITY upon CUSTOMER
acceptance. This invoice reflects no federal, state, or local taxes. Taxes, as may
be appropriate, shall be added or invoiced separately.
C-1
IRU-02.1-SCHEDULE D
IRU-02.1-Schedule-D
CABLE SYSTEM SPECIFICATIONS
1. General
The CITY shall install and maintain the CUSTOMER System within the CITY'S
Cable System in accordance with the criteria and specifications that follows:
2. Design Criteria
The CITY will endeavor to keep the number of splices in a span to a minimum.
3. Optical Fiber Specifications
The CITY will meet the optical specifications as detailed below for all cable
installed for the Term of this Short Form IRU Agreement:
Single Mode Fiber:
Parameter Specifications Units
Maximum attenuation, 1310nm
Maximum attenuation, 1550nm
Cladding diameter
Core diameter
Cutoff Wavelength
Zero dispersion wavelength
Maximum dispersion (1285-1330 nm)
4. Splice Loss
0.5
dB/Km
0.4
dB/Km
125 +/- 3
um
8.3
um
1250 +/- 100
nm
1310 +/- 12
nm
3.5
ps/(nm-km)
Splice loss on CITY cables will average less than or equal to 0.15 dB for all
splices the CITY makes under this IRU-02.1 Agreement. The 0.15 dB splice average
will only apply to splices between cables of identical physical and optical properties
(i.e., core and cladding dimensions, reflective index and optical loss characteristics). All
splices shall be measured using bi-directional methods and averages.
5. End -to -End Attenuation Test Criteria
The CUSTOMER System will be tested at both wavelengths specified for the
installed cable type as specified below unless , otherwise stated in this IRU-02.1
Agreement:
D-1
K • • i � y
IRU-02.1-Schedule—D (Continued)
Single Mode Fiber 1310 nm and 1550 nm
The end -to -end attenuation test criteria will be based on the following formula:
Maximum acceptable end -to -end attenuation = (A X Lx) + (0.15 X Nsp) + C
Where:
A = Max. attenuation at each wavelength as specified in Section 3 above
Lx = Installed length of cable in kilometers (km)
Nsp = Number of fiber splices in the cable sysem
C = Connector/pigtail loss. The attenuation contribution of each pigtail with
associated connector is considered to be 1.0 dB comprised of 0.85 dB
connector loss and 0.15 dB splice loss (pigtail to OSP cable splice).
Therefore, C = 1.0 dB if the span is connectorized on one end and 2.0 dB if
connectorized on both ends.
5.1 The parameters above are guaranteed unless otherwise specified.
5.2 In the event that the fiber measured attenuation values change after the
cable is installed and is degraded by 2db or greater than specified above, the CITY will
perform corrective maintenance pursuant to IRU-02. 1 -Schedule — D of this original
specified attenuation values.
AnalogVideo
The CITY will not warrant CUSTOMER analog video transmission within the
foregoing system parameters.
D-2
IRU-02.1-SCHEDULE E
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EXHIBIT
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TROUBLE -REPORTING
PROCEDURE
Exhibit `B"
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TROUBLE -REPORTING PROCEDURE
The CITY maintains its fiber .optic network (Cable System) in accordance with
industry standards. Should a problem or trouble with the service arise, please call 323-
826-1461 (24 hours) to report trouble. This is the number of the CITY'S Technical
Control Center (TCC). The TCC will inform the maintenance and management group of
all trouble calls. The acting Maintenance Supervisor will initiate the indicated trouble
into the restoral action and coordinate all restoration activity. The CUSTOMER can
obtain the name and telephone number of the acting Maintenance Supervisor from the
TCC at the time of trouble reporting. Upon clearance of the trouble, the TCC will notify
the trouble -reporting location of clearance and reason for trouble.
The CITY shall within four (4) hours of notification of the trouble -reporting be on
site and begin investigating and correcting the reported condition. The CITY, at four-
hour intervals, shall provide the CUSTOMER a report of progress or lack thereof in
restoring the system to operation in accordance with the Customer System/Cable System
Specifications of the Short Form IRU Agreement's Schedule-D.
Exhibit `B"
EXHIBIT
C
(06C99
INSURANCE ENDORSEMENT FORMS
EXHIBIT "C"
EXHIBIT C
INSURANCE SCHEDULE
Customer shall provide proof of insurance, including a standard certificate of insurance, in at
least the following amounts and coverage (combined single limit permitted):
I. Coverage and Limits
Bodily jury Property Damag
Hazards Each Person Each Accident Each Accident
Automobile Liability
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -Owned Automobiles $ 500,000 $1,000,000 $ 500 000
Workers' Compensation $ Statutory
Employers' Liability $1,000,000 per employer
II. Liability
General Liability
$1,000,000
$2,000,000
$1,000,000
Premises Operations
$1,000,000
$2,000,000
$1,000,000
Elevators (If Applicable)
$1,000,000
$2,000,000
$1,000,000
Independent Contractors
$1,000,000
$2,000,000
$1,000,000
Products - Completed Operations
$1,000,000
$2,000,000
$1,000,000
Contractual Liability
$1,000,000
$2,000,000
$1,000,000
Umbrella Liability
$2,000,000
$2,000,000
$2,000,000
a . The general liability policy shall contain the following special endorsements which shall be
noted on or attached to the standard certificate of insurance:
1. An endorsement naming the City of Vernon, its officers, and employees as additional
insureds under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or
material reduction of coverage.
3. An endorsement providing coverage for all operations under this Agreement.
4. Such other endorsement as may be required by addendum hereto.
b. In addition to the standard certificate of insurance, proof of liability coverage shall be
furnished in the form checked below.
X For each policy, a notarized letter from the underwriter or carrier certifying that the
coverage and statements in the standard certificate of insurance (attached thereto) are true
and correct and that the signator is an officer authorized to so certify.
OR
A copy of each policy certified by an officer of the underwriter or carrier and notarized.
City will not accept the above proofs of insurance when certified by an insurance agent or
broker.
19MOVII-Y&M
SUPPORTING
DOCUMENTS
� w �
AGREEMENT NO.02
OPTICAL FIBER USE AGREEMENT
By and Between
THE CITY OF VERNON
and
CLOUGHERTY PACKING COMPANY
I-
TABLE OF CONTENTS
1.
DEFINITIONS: --_------.----..-------_--.^----------.-.---.--------------'.l
2' '�IB0�'
----'----'----'---^'''-'-------'--------------.------.-----------'2
3' TAXES: --...----..----.----.-_----------------.---------.-------'-----
zi z°uANTzNAnCE.'
--------.---.----..-.--_-----------,--'------------''--2
5��I��I�K����������I�0��
' ..........................................................-----'—.---_--------3
6' COMPLIANCE WITH LAWS: .............................................................................................. 4
7' RELOCATION OF THEFACILITIES: ................................................................................. 4
8' EVENTS OF __---_-----------'--''-----------------'----'
9' ADMINISTRATION OF THISAGREEMENT: ................................................................... 7
10. ^mDExuN/rICATION:-----_----.,---___-___,___------------------_--_-'7
11.
uNmurANCo' -------_-_-----.---------------_-----------------------'8
12. DEFgkTJLI:-----_----.-_--�.-.--...--------'-----'-'-----'-------------'-'
13. FORCE MAJEJRE:.---_--.-.---__---------_----.-'--'---'----''--------''-9
14. ASSIGNMENT: ..................................................................................................................... l0
15. WAIVER:
--'—'-------------'-'---------------__-_-_.---.----------l0
16. RELATIONSHIP NOT PARTNERSHIP OR ANAGENCY: ......................................... l0
17. NO '
THIRD -PARTY BENEFICIARIES: ............................................................................. ll
10' 'y�K��I���'
--'-------'---''--------''-''-'-----'-------_---------------_-'ll
19. GOVERNING IAW-----__—__—___--__-___--_._-------.--------------'}l
20. FORUM SELECTIOrv:------..--_—_----------_----..--_----.----------...11
Zy' USE OFTHE CUSTOMERSYSTEM: ............................................................................... ll
22' PLURALS:
-''-''-------'---'-------'-'-----------_-_-----------.-----_..l2
23. PARTS OFAGREEMENT: ................................................................................................. l2
24' COUNTERPARTS: .............................................................................................................. l2
25' ACCEPTANCE TESTING: .................................................................................................. l2
26' BILLING AND PAYMENT:
27' '�3�I�I'
--'''--'----------------------------.--_----_------------------l3
28' ENTIRE
AGREEMENT: ...................................................................................................... l3
29' RECITALS: .......................................................................................................................... l3
30. '
�' ���+��n���KT ��-------- -- ~^~~^^~~`~~~~~~Agreement
EXHIBIT B: Trouble Reporting Procedure
EXHIBIT C: Insurance
6\
,,
A
t
b. Short Form IRU Al eement: Any number of short form agreements
between the CITY and CUSTOMER which identify the specific optical
fiber strands and facilities to be provided to CUSTOMER and which set
forth the associated fees, terms and conditions for CUSTOMER'S use of
such optical fiber strands and facilities. When executed, each Short Form
IRU Agreement shall be attached hereto as Exhibit "A" and made a part
hereof.
C. CUSTOMER System: The optical fiber strands, innerduct, conduit,
building entrance facilities and associated appurtenances, to be provided to
CUSTOMER under the terms of this Agreement and the applicable Short
Form IRU Agreement(s) and the associated rights to access such fiber
strands at demarcation points as specified in the applicable Short Form
IRU Agreement(s).
d. Cable System: All hardware, including but not limited to, fiber cable,
poles, pole attached hardware, conduit, innerduct, enclosures, building and
facilities owned and operated by the CITY for its use.
2. TERM:
2.1 Unless terminated sooner in accordance with the terms and conditions of this
Agreement, the duration of this Agreement is three (3) years (hereinafter
referred to as the "Term"), commencing on the date of this Agreement
(hereinafter referred to as the "Commencement Date'). The duration of each
Short Form IRU Agreement, and any renewal or extension thereof, shall be set
forth in the applicable Short Form IRU Agreement for each portion of the
CUSTOMER System. With the written mutual consent of the two parties, this
Agreement can be renewed for two additional three (3) years terms.
3. TAXES:
3.1 The CITY shall be responsible for all taxes and fees based on the physical
location of the Cable System and/or the construction thereof in, on, across, along
or through public or private roads, highways or rights -of -way.
3.2 The CUSTOMER shall be responsible for paying all taxes, and franchise, license
and permit fees (hereinafter collectively referred to as "Taxes") assessed against it
for the conduct of its business and for its use of the CUSTOMER System during
the Term of this Agreement.
4. MAINTENANCE:
4.1 All scheduled and emergency maintenance to and repair of the Cable System, and
all facilities through which the Cable System passes, shall be performed by or
2
under the direction of the CITY with reasonable notice to CUSTOMER at CITY's
sole cost.
Except as otherwise provided in the, Short Form IRU Agreement, CUSTOMER is
prohibited from performing any maintenance or repair on the Cable System or
CUSTOMER System. CUSTOMER shall have the right to have an employee or
representative available to assist the CITY in any maintenance or repair of the
CUSTOMER System. The CITY shall maintain the CUSTOMER System in
accordance with the technical specifications (hereinafter referred :to as the
"Specifications") attached to and made a part of the Short Form IRU Agreement
as its Schedule-D.
a. Emergency Maintenance: The CITY shall respond to any failure,
interruption or impairment in the operation of the CUSTOMER System
within four (4) hours after receiving a report of any such failure, interruption
or impairment. The CITY shall use its best efforts to perform emergency
maintenance and repair to correct any failure, interruption or impairment in
the operation of the CUSTOMER System when reported by CUSTOMER in
accordance with the procedures set forth in Exhibit `B" attached hereto and
made a part hereof.
b. Scheduled Maintenance: The CITY from time to time will schedule and
perform periodic maintenance to protect the integrity of the Cable System
and/or CUSTOMER System to maintain dark fibers within Specification at
City's sole cost. The City will perform changes or modifications to the Cable
System and/or CUSTOMER System at CUSTOMER'S request.
CUSTOMER may request Scheduled Maintenance by delivering to the CITY
a statement of work detailing the service CUSTOMER desires to have
performed, including the time schedule for such services. Upon receipt of
such statement of work, the CITY will provide an estimate of the price and
timing of such Scheduled Maintenance. Following CUSTOMER's
acceptance of such estimate, the CITY will schedule and perform such
Scheduled Maintenance. The CITY will perform CUSTOMER requested
Scheduled Maintenance on a time -and -materials basis at the standard CITY
rates in effect at the time services are performed. CITY rates in effect will be
those identified in Schedule -A of the most recent Short Form IRU
Agreement. Such rates are subject to change at a rate not to exceed the
cumulative CPI rates of previous years since the last rate change.
5. FREEDOM OF ACTION:
Nothing in this Agreement shall restrict the CITY's right to conduct its business and
it may, without limitation, construct and install additional optical fiber cable systems
for any purpose whatsoever.
3
6. COMPLIANCE WITH LAWS:
CUSTOMER shall comply with all applicable federal, state, and local laws,
ordinances and regulations pertaining to this Agreement.
7. RELOCATION OF THE FACILITIES•
CUSTOMER recognizes that, from time to time, the CITY may elect or be required
by parties other than the CUSTOMER to relocate the Cable System and/or the
CUSTOMER System, or a portion thereof. The CITY shall be solely responsible for
all costs incurred in relocating the Cable System and/or the CUSTOMER System and
shall use its best efforts to do so in a manner that will not cause any material
interruption in CUSTOMER'S use thereof The CITY agrees to give CUSTOMER at
least thirty (30) days prior written notice of any relocation plans.
8. EVENTS OF TERMINATION:
8.1 Condemnation
a. If at any time during the Term of this Agreement, all or any
significant portion of the Cable System or the CUSTOMER
System shall be taken -for any public or quasi public purpose by
any lawful power or authority by the exercise of the right of
condemnation or eminent domain, either party may elect to
terminate this Agreement and/or the affected Short Form IRU
Agreement upon giving the other party sixty (60) days prior
written notice. In the event this Agreement and/or the affected
Short Form IRU Agreement is terminated in accordance with this
section, both parties shall be entitled to participate in any
condemnation proceedings to seek to obtain compensation via
separate awards for the economic value of their respective interest
in the Cable System or CUSTOMER System.
b. Upon its receipt of a formal notice of condemnation or taking, the
CITY shall notify CUSTOMER immediately of any condemnation
proceeding filed against the Cable System, including the
CUSTOMER System. The CITY shall also notify CUSTOMER of
any similar threatened condemnation proceeding and agrees not to
sell the CUSTOMER System to such acquiring agency, or other
party in lieu of condemnation without prior written notice to
CUSTOMER.
8.2 Damage or Destruction of the Cable System or the CUSTOMER System:
If at any time during the Term of this Agreement and/or specific Short
Form IRU Agreement all or any significant portion of the Cable System
and/or CUSTOMER System provided by specific Short Form IRU
4
Agreement shall be made inoperable and beyond feasible repair, a party
may terminate the specific Short Form IRU Agreement upon giving (30)
days written notice to the other Party. In the event this Agreement and/or
specific Short Form IRU Agreement is terminated under this section, both
Parties shall be entitled to seek to recover the economic value of their
respective interest in the Cable System or the CUSTOMER System (1)
under any insurance policy carried by either Party, or (2) seek recovery
from any third party which may be legally responsible for causing such
damage or destruction.
8.3 Catastrophic Outage: If at any time during the Term of this Agreement,
the ability of the Cable System and/or CUSTOMER System, provided by
specific Short Form IRU Agreement, to transmit voice, data, and/or video
services is interrupted or degraded below the specifications in the Short
Form IRU Agreement Schedule-D by (1) a force majeure event that lasts
for thirty (30) consecutive days, or (2) a non -force majeure event that lasts
for five (5) consecutive days, then either Party may elect to terminate the
specific Short Form IRU Agreement upon giving thirty (30) days written
notice to the other Party. In the case of non -force majeure event, each
Party shall be entitled to seek legal remedies that may be available.
8.4 Relocation: If the CITY, in accordance with Section 7, after using its best
efforts to undertake such relocation, cannot relocate the CUSTOMER
System or affected portion thereof, CUSTOMER may terminate the
applicable Short Form IRU Agreement upon giving at least thirty (30)
days written notice to the CITY.
8.5 Obsolete Cable System: If at any time during the Term of this Agreement,
CUSTOMER can demonstrate to the CITY's satisfaction that the Cable
System and/or any portion or portions thereof have become technically
obsolete, the CUSTOMER shall have the right to elect to terminate this
Agreement or the affected Short Form IRU Agreement by giving at least
thirty (30) days written notice to the CITY.
8.6 Poor Service: If at any time during the Term of this Agreement or a
specific Short Form IRU Agreement, CUSTOMER can demonstrate to the
CITY's satisfaction the Cable System and/or any portions thereof, fail to
perform in accordance with the specifications set forth in Schedule-D of
the affected Short Form IRU Agreement over a period of at least three (3)
consecutive months, and the CITY's efforts during this period have failed
to restore the Cable System to the required Specifications, then the
CUSTOMER has the right to terminate this Agreement or the affected
Short Form IRU Agreements by giving at least thirty (30) days written
notice to the CITY.
Notwithstanding any provision contained in this Agreement to the
contrary, the CITY shall have the right to terminate any Short Form IRU
5
Agreement upon three (3) months written notice to CUSTOMER if the
CUSTOMER System provided by such Short Form IRU Agreement is
needed in connection with the CITY's telecommunications needs related
to CITY business. At the time of such notice of termination, the CITY
shall waive the remaining annual payment of the Short Form IRU
Agreement that the CITY elects to terminate. If the CITY terminates, it
will use its best efforts to relocate CUSTOMER System or any segment
under the affected Short Form IRU Agreement, and if a satisfactory
relocation reroute can be identified, CUSTOMER and CITY shall enter
into a new Short Form IRU Agreement.
8.7 CUSTOMER Sole Discretion: Notwithstanding any provision contained in
this Agreement to the contrary, at any time after the effective date of this
Agreement, CUSTOMER shall have the option, in its sole discretion and
for any reason, to terminate this Agreement or any Short Form IRU
Agreement upon three (3) months prior written notice to the CITY.
8.8 1Termination Settlement Charges:
a. No termination, as provided for in the Agreement, shall be
effective until the CUSTOMER has paid all required sums due
under any affected Short Form IRU Agreement up to and including
the effective date of termination and Termination Settlement
Charges, if any, as defined in Sections 8.8.b, 8.8.c and 8.8.d.
b. In the event CUSTOMER elects to terminate this Agreement
and/or any Short Form IRU Agreement under the terms of the
provisions of Section 8.7, the annual payments shall be
recalculated to reflect the termination date and, therefore, the new
Term of the Agreement. The recalculated annual payments shall
use the appropriate discount or premium and shall be retroactive to
all CUSTOMER IRU payments from commencement to the
termination of each Short Form IRU Agreement. The cumulated
difference between the annual IRU payments made.by the
CUSTOMER to the CITY under the CUSTOMER's originally
selected Term of the Agreement (including any discounts) and the
recalculated payments applicable for the effective Term of the
Agreement shall hereinafter be known as "Termination Adjustment
Charge." The Termination Adjustment Charge shall apply as part
of the Termination Settlement Charges.
C. Furthermore, in the event CUSTOMER elects to terminate any
Short Form IRU Agreement under the terms of the provisions of
Section 8.7, a termination charge of half the remaining payments
due if the Short Form IRU Agreement were to reach its full Term
shall apply as part of the Termination Settlement Charges.
0
d. The Termination Settlement Charges shall be calculated as
follows: TSC = TAC + % (remaining $ of original Short Form
IRU Agreement).
e. CITY shall transfer the ownership of the demarcation patch panels
at end of the initial Term. The CITY shall remove CUSTOMER
system from CITY cable system by physically removing optical
fiber cables from the splicing enclosure on public rights -of -way to
the demarcation point leaving the patch panel in place at
CUSTOMER's request.
9. ADMINISTRATION OF THIS AGREEMENT:
9.1 Within thirty (30) calendar days after the effective date of this Agreement,
CUSTOMER and the City Administrator shall designate, by written notice
to the other, a representative who is authorized to act in the respective
Party's behalf with respect to those matters delegated to the authorized
representatives. Each Party may designate an alternate representative with
full authority to act in the absence of the authorized representative. Each
Party shall have the right to change its representative or alternate by
written notice.
9.2 The authorized representatives shall have the following responsibilities,
among others:
a. Perform those functions and duties assigned to them in this
Agreement.
b. Review and attempt to resolve any disputes between the Parties
arising under this Agreement.
C. Arrange for the development and completion of procedures to
implement the provisions of this Agreement.
9.3 Any expenses incurred by the authorized representative in connection with
his/her duties shall be paid by the Party he/she represents.
9.4 The authorized representative shall have no authority to modify this
Agreement.
10. INDEMNIFICATION:
10.1 The CUSTOMER undertakes and agrees to indemnify, defend and hold
harmless the CITY, the Department of Community Services & Water, the
City Council of the CITY, and all of its officers and employees, and, at the
option of the CITY, defend the CITY, and any and all of its Boards,
officers, agents, representatives, employees, assigns and successors in
7
interest from and against any and all suits and causes of action, claims,
charges, damages, demands, judgments, civil fines and penalties, or losses
or any kind or nature whatsoever, for death, bodily injury or personal
injury to any person, including CUSTOMER's employees and agents, or
damage or destruction to any property of either party hereto, or third
persons in any manner arising by reason of the negligent acts, errors,
omissions or willful misconduct incident to the performance of this
Agreement on the part of the CUSTOMER, or the CUSTOMER's officers,
agents, employees or subcontractors of any tier, except for the active
negligence or willful misconduct of the CITY, its officers, agents,
representatives or employees.
10.2 Except for any payment due to the CITY in accordance with Section 26 of
this Agreement, neither party shall be liable for any indirect, special,
punitive or consequential damages, (including, but not limited to, any
claim for loss of services) arising under this Agreement or from any
breach or partial breach of the provisions of this Agreement or arising out
of any act or omission hereto, its employees, contractors and/or agents.
The CUSTOMER shall include in any agreement with any third party
relating to the use of the Cable System or the CUSTOMER System a
waiver by such third party of any claim for indirect, special, punitive or
consequential damages (including, but not limited to, any claim from any
CUSTOMER for loss of services) arising out of or as a result of any act or
omission by either party hereto, its employees, contractors and/or agents.
The parties' respective obligations to include such a provision waiving
indirect, special, punitive or consequential damages in any agreement with
any third party shall be subject to any and all regulatory or other legal
limitations, as well as applicable tariffs.
I L INSURANCE:
CUSTOMER agrees to provide insurance in the amounts and forms specified in Exhibit
" C," which is attached hereto and made a part hereof by reference. CUSTOMER shall
submit to the CITY documentation indicating compliance with these minimum
requirements no less than one (1) day prior to the beginning of performance under this
Agreement.
12. DEFAULT:
12.1 CUSTOMER shall not be in default under this Agreement or in breach of
any provision hereof unless and until the CITY shall have given
CUSTOMER written notice of a breach and CUSTOMER shall have
failed to cure the same within thirty (30) days after receipt of a notice,
other than any default in payment which must be cured within fifteen (15)
business days after receipt of a notice; provided, however, that where such
non -monetary breach cannot reasonably be cured within such thirty (30)
day period, if CUSTOMER shall proceed promptly to cure the same and
prosecute such curing with due diligence, the time for curing such breach
shall be extended for a reasonable period of time to complete such curing.
Upon the failure by CUSTOMER to timely cure any such breach after
notice thereof from the CITY, the CITY shall have the right to take such
action as it may determine, in its sole discretion, to be necessary to cure
the breach or terminate this Agreement or pursue such other remedies as
may be provided by law or in equity.
12.2 The CITY shall not be in default under this Agreement or in breach of any
provision hereof unless and until CUSTOMER shall have given the CITY
written notice of such breach and the CITY shall have failed to cure the
same within thirty (30) days after receipt of such notice; provided,
however, that where such breach cannot reasonably be cured within such
thirty (30) day period, if the CITY shall proceed promptly to cure the same
and prosecute such curing with due diligence, the time for curing such
breach shall be extended for a reasonable period of time to complete such
curing. Upon the failure by the CITY to timely cure any such breach after
notice thereof from CUSTOMER, CUSTOMER shall have the right to
take such action as it may determine, in its sole discretion, to be necessary
to cure the breach or terminate this Agreement or pursue such other
remedies as may be provided at law or in equity.
12.3 If CUSTOMER or the CITY, as the case may be, shall file a petition in
bankruptcy or for reorganization or for an arrangement pursuant to any
present or future federal or state bankruptcy law or under any similar
federal or state law, or shall be adjudicated as bankrupt or insolvent, or
shall make a general assignment for the benefit of its creditors, or shall
admit in writing its inability to pay its debts generally as they become due,
or if any involuntary petition proposing the adjudication of CUSTOMER
or the CITY, as the case may be, as a bankrupt or its reorganization under
any present or future federal or state bankruptcy law or any similar federal
or state law shall be filed in any court and such petition shall not be
discharged or denied within ninety (90) days after the filing thereof, or if a
receiver, trustee or liquidator of CUSTOMER or the CITY, as the case
may be, of all or substantially all of the assets of CUSTOMER or the
CITY, as the case may be, and shall consent to or acquiesce in such
appointment, then the other party hereto may, at its sole option,
immediately terminate this Agreement upon written notice.
13. FORCE MAJEURE:
Neither party shall be considered to be in default in any of its obligations under this
Agreement when a failure of performance shall be due to an uncontrollable force. The
terms "uncontrollable force" shall mean any cause beyond the control of the party
affected, including, but not restricted to, flood, earthquake, storm, fire, lightening,
epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor material
0
shortage, sabotage, federal, state, or municipal action, statute, ordinance, or regulation,
embargoes of the United States Government or any other government, which by exercise
of due diligence such party could not reasonably have been expected to avoid and by
exercise of due diligence has been unable to overcome. Either party rendered unable to
fulfill any of its obligations under this Agreement by reason of an uncontrollable force,
shall give written notice within five (5) business days of such fact to the other party and
shall exercise due diligence to remove such inability with all reasonable dispatch.
14. ASSIGNMENT:
14.1 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors or assigns; provided,
however, that no assignment hereof or sublease, assignment or licensing
(hereinafter collectively referred to as a "Transfer") of any rights or
obligations hereunder shall be valid for any purpose without the prior
written consent of each party hereto, provided, further, however, that
without such consent, CUSTOMER shall have the right to assign this
Agreement to any parent, subsidiary or affiliate of CUSTOMER or to any
person, firm or corporation which shall control, be under the control of, or
be under common control with CUSTOMER or to any person, firm or
corporation into or with which CUSTOMER may be merged or
consolidated or which purchases all or substantially all of the assets or
stock of CUSTOMER.
14.2 In the event of any assignment or Transfer by either party undertaken
pursuant to Section 14.1 herein, the assigning or transferring party shall
remain liable for all its obligations under this Agreement, unless: (a) the
other party consents to release by written instrument, the assigning or
transferring party from such obligations, and (b) the assignee or transferee
shall have affirmatively assumed in writing all of the obligations of the
assigning or transferring party under this Agreement.
15. WAIVER:
Any waiver at any time by either Party of its rights with respect to a default under this
Agreement, or with respect to any other matters arising in connection with this
Agreement, shall not be deemed a waiver with respect to subsequent default or other
matter.
16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY:
Except where specifically stated in this Agreement to be otherwise, the duties,
obligations, and liabilities of the Parties are intended to be several and not joint or
collective. Nothing contained in this Agreement shall be construed to create an
association, trust, partnership, or joint venture or impose a trust or partnership duty,
10
obligation, or liability on or with regard to either Party. Each Party shall be individually
and severally liable for its own obligations under this Agreement.
17. NO THIRD -PARTY BENEFICIARIES:
This Agreement shall not be construed to create rights in, or to grant remedies to, any
third party (except as specified herein) as a beneficiary to this Agreement or of any duty,
obligation or undertaking established herein.
18. NOTICES:
Any written notice under this agreement shall be deemed properly given if sent by
registered or certified mail, postage prepaid, or by nationally recognized overnight
delivery service or by facsimile to the address specified below, unless otherwise provided
for in this Agreement`.
CITY: THE CITY OF VERNON
ATTN: BRUCE V. MALKENHORST
CITY ADMINISTRATOR
4305 SANTA FE AVENUE
VERNON, CA 90058-0805
CUSTOMER:
ATTN: �a _S H E,tii s o.c7
v
19. GOVERNING LAW:
The validity, interpretation and performance of this Agreement shall be controlled and
construed under the laws of the State of California.
20. FORUM SELECTION:
Any action brought relating to this Agreement shall be brought and held exclusively in a
State Court in the County of Los Angeles, California.
21. USE OF THE CUSTOMER SYSTEM:
CUSTOMER shall have exclusive control over its provisioning of voice, data, and/or
other video services and other services including, without limitation, CUSTOMER
premise and nodal electronics, electronics installation, configuration, operation,
maintenance and monitoring.
11
22. PLURALS:
In construction of this Agreement, words used in the singular shall include the plural and
the plural the singular, and/or is used in the inclusive sense, in all cases where such
meanings would be appropriate.
23. PARTS OF AGREEMENT:
All Short Form IRU Agreements, attachments, exhibits and appendices attached hereto
shall be deemed a part of this Agreement, and shall have full force and effect. Short
Form IRU Agreements shall be identified and named with a numeric designator by
chronological date of execution, e.g., -01, Short Form IRU Agreement, and attached
chronologically following this Agreement and its exhibits and made a part of this
Agreement.
24. COUNTERPARTS:
This Agreement may be executed in any number of counterparts, each and all of which
shall be deemed for all purposes to be one agreement. However, this Agreement shall not
become effective unless and until all Parties hereto have executed either the original or a
counterpart of the Agreement.
25. ACCEPTANCE TESTING:
The CITY will submit an acceptance testing plan to CUSTOMER for approval within
thirty (30) days of signing any Short Form IRU Agreement. CUSTOMER will review
and provide comments within twenty (20) days of receipt. The CITY and CUSTOMER
will jointly agree on the final acceptance testing plan, such plan to include non-
destructive attenuation tests and optical time domain reflectometer tests on each segment.
CUSTOMER shall accept each deliverable in writing within seven (7) days of successful
completion of the final acceptance testing plan.
26. BILLING AND PAYMENT:
26.1 The CITY shall invoice CUSTOMER for all fees and charges hereunder
as determined by the Short Form IRU Agreement(s) and this Agreement
as follows:
a. CITY shall invoice CUSTOMER per Short Form IRU upon
CUSTOMER acceptance of each deliverable.
b. CUSTOMER shall submit payment in full within thirty,(30) days
after receipt of the CITY's invoice.
C. CUSTOMER agrees to pay the CITY the fees set forth in the Short
Form IRU Agreement payable on a quarterly basis of the calendar
12
year. Payment shall be made in advance by the 15a' day of the
month preceding the beginning of the quarter.
d. Notwithstanding any provision contained in this Agreement to the
contrary, CUSTOMER shall have the right to dispute any fees,
charges, costs, expenses or payments for which it is invoiced by
the CITY. In the event CUSTOMER disputes any invoice, or
portion thereof, received from the CITY, CUSTOMER shall
promptly pay that portion of the invoice which is undisputed.
CUSTOMER shall have the right to withhold payment of any
disputed amount, provided that CUSTOMER gives written notice
to the CITY of the amount so disputed and the reason for the
dispute on or before the due date of the invoice.
27. TITLE:
CUSTOMER agrees that all right, title, and interest in all the CUSTOMER System
provided by the CITY hereunder and as specified in the Short Form IRU Agreement shall
at all times remain exclusively with the CITY. The CITY agrees that all right, title and
interest in CUSTOMER System associated equipment provided by CUSTOMER as
specified in the Short Form IRU Agreements shall at all times remain exclusively with
CUSTOMER. The CITY acknowledges that CUSTOMER has contracted for the
indefeasible right to use the CUSTOMER System at the time CUSTOMER executes each
Short Form IRU Agreement and agrees that it will not take any action which shall be
inconsistent with CUSTOMER's IRU interest.
28. ENTIRE AGREEMENT:
This Agreement constitutes the complete and final expression of the agreement of the
Parties and is intended as a complete and exclusive statement of the terms of their
agreement and supersedes all prior and contemporaneous offers, promises,
representations, negotiations, discussions, communications and agreements which may
have been made in connection with the subject matter hereof. All exhibits and schedules
are incorporated by reference. CUSTOMER represents that in entering into this
Agreement it has not relied on any previous representations or understandings of any
kind or nature.
29. RECITALS:
All recitals are incorporated by reference.
30. SEVERABILITY:
If any portion of this Agreement shall be held by a court of competent jurisdiction to be
invalid, void, or otherwise unenforceable, the remaining provisions shall remain
enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each portion of
13
this Agreement containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or enforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, void, or unenforceable.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of this day and year first above
written.
CITY OF VERNON
By:
�ON�ISC.MALBUR Mayor
ATTEST•
BRUCE V. MALKENHORST, City Clerk
APPROVED AS RM:
ERIC T. FRES H, City Attorney
14
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By:
Print Name: S
Title: V-Lr e y-ces moGJ FlAanee IC
By:
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EXHIBIT "A"
ALL SHORT FORM IRU AGREEMENTS
SHORT FORM IRU-02.1
Indefeasible Right of Use Agreement
THIS SHORT FORM IRU-02.1 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein
referred to as "IRU-02.1 Agreement") is made, entered into and executed in duplicate originals,
either copy of which may be considered as the original hereof for all purposes, as of this
day of , 2004, between the City of Vernon (hereinafter referred to
as the "CITY") having its offices at 4305 Santa Fe Avenue, Vernon, California 90058, and
Clougherty Packing Company (hereinafter referred to as "CUSTOMER'), a corporation with
its office at 3049 Vernon Avenue, Vernon, California 90058, and upon execution shall be a
part of the CUSTOMER Optical Fiber Use Agreement ("Agreement") dated
RECITALS
WHEREAS, the CITY leases certain optical dark fiber strands and associated facilities in
its Cable System for voice, data, and/or other video services, and CUSTOMER desires to lease
such Cable System components for its business; and
WHEREAS, the CITY optical fiber strands and facilities used by CUSTOMER are
identified in the Agreement as CUSTOMER System and likewise shall be referred to as
"CUSTOMER System" in this IRU-02.1 Agreement.
THEREFORE, in consideration of the mutual agreements herein, the parties agree as
follows:
1. The CITY hereby grants to CUSTOMER an Indefeasible Right of Use (IRU) of the
following CITY Cable System components:
Fiber strand numbers 1 through 4 of the CITY Cable System terminating in each
CUSTOMER facility and dedicated for CUSTOMER exclusive use, as identified in
IRU-02.1-Schedule—E; and
These individual CITY Cable System components collectively shall be the CUSTOMER
System for this IRU-02.1 Agreement. The CUSTOMER System shall be inclusive of the
CITY'S fiber optic Cable System between and including the CITY'S sides of the
originating and terminating demarcation points.
2. The CITY will construct, install, and/or provide the CUSTOMER System for
CUSTOMER'S use in accordance with the terms of the Agreement and this IRU-02.1
Agreement. The CITY shall use reasonable efforts to comply with the project .schedule
that is mutually agreed by both Parties.
3. CUSTOMER'S indefeasible right of use in each component of the CUSTOMER System
shall commence when CUSTOMER notifies the CITY that it accepts, in accordance with
the Section 25 of the Agreement, that component of the CUSTOMER System that meets
the specifications set forth in the attached IRU-02.1-Schedule-D and operating
effectively, and shall be valid for the remainder of the Term.
During the Term, the CITY reserves the right to increase the recurring IRU fees at a rate
not to exceed the Consumer Price Index, All Urban Consumers (CPI-U), published by the
United States Department of Labor, Bureau of Labor Statistics (1982-84=100). The
recurring fee may be increased on each anniversary of the effective date of the IRU-02.1
Agreement in which CUSTOMER will receive the IRU, by the increase, if any, in the
CPI-U for the preceding twelve (12) month period. In the event such index shall cease to
be computed or published, CITY may, in its reasonable discretion, designate a successor
index to be used in determining any increase to the recurring fee.
4. The CITY shall provide the following items for the CUSTOMER System service:
4.1 A demarcation point at each CUSTOMER access location. The demarcation
points consist of City furnished and installed patch panels on the
CUSTOMER's existing 19" racks;
4.2 Optical fiber cable extension segments from splice enclosure in the public
Right of Way to the demarcation point in CUSTOMER access location; and
4.3 One innerduct which will house fiber optic cable extension segments, inside
the CUSTOMER furnished conduit, where applicable, from the conduit
entry to the demarcation point.
CUSTOMER shall provide the following items for the CUSTOMER System service:
5.1 Provide the CITY access to the CUSTOMER's existing conduit system
leading to the demarcation point inside the CUSTOMER location(s);
5.2 Provide the CITY access to the demarcation room for placement of necessary
demarcation accessories and perform Scheduled or Emergency maintenance;
5.3 Bring its connecting optical fiber patch cords to the demarcation connection
points;
5.4 Specify the type of optical connector needed at the demarcation termination
point. The CITY shall install ultra SC type connector unless otherwise
specified by the CUSTOMER; and
5.5 CUSTOMER shall be responsible for purchase, installation and maintenance
of any and all electronic, optronic and other equipment, materials and
facilities used by CUSTOMER on the CUSTOMER side of the demarcation
points in connection with the operation of the CUSTOMER System, none of
which is included in this IRU-02.1 Agreement.
2
6. The charges and application rules are identified in IRU-02.1-Schedule —B. A pro forma
invoice setting forth a summary of the one-time nori-recurring fee elements and the base
charges for the monthly recurring fee elements under the IRU-02.1 Agreement is attached
hereto as IRU-02.1-Schedule-C. The payments and charges shall be in accordance with
Section 26 of the Agreement and as specifically identified in the following
subparagraphs:
6.1 CUSTOMER shall pay a one time advanced engineering fee of (waived)
which payment is due upon receipt of CUSTOMER's written request for service
and shall be credited against the connection fee.
6.2 CUSTOMER shall pay a one time construction and installation fee of
(waived) which payment is due upon CUSTOMER acceptance.
6.3 One-time lateral connection charge of (waived) which payment is due
upon CUSTOMER acceptance.
6.4 CUSTOMER shall pay quarterly IRU fee payments based on a monthly base rate
of $680.00 with first quarterly payment due to the CITY upon CUSTOMER
acceptance.
6.5 CUSTOMER shall pay one-time building or external network service connection
and disconnection charges for each building service added or deleted after the
initial establishment and cutover of a CUSTOMER System cable segment. One-
time CUSTOMER service charges also apply if the CUSTOMER requires
installation of a new distribution ring or concentrator in an already established
Cable System or Customer System distribution cable segment, rearrangement of
existing service connections, and rearrangement of a ring or concentrator
operation.
6. All maintenance and repair functions on the CUSTOMER System and all facilities
through which the CUSTOMER System passes, including, but not limited to, the CITY's
Cable System, shall be performed by the CITY.
7.1 Section 4 of the Agreement applies.
7.2 CITY shall maintain the CUSTOMER System to the specifications provided in
IRU-02.1-Schedule—D.
7.3 CITY shall provide to the CUSTOMER a twenty-four (24) hour a day, three
hundred sixty-five (365) days per year, trouble -reporting telephone number.
CUSTOMER shall provide the CITY a twenty-four (24) hour a day _trouble
coordination telephone number.
7.4 Any impairment or, outage reasonably suspected to be caused by CUSTOMER
System components on the CITY'S side of the demarcation point shall require a
response from the CITY. During CUSTOMER System impairments or outages
affecting CUSTOMER'S service, CITY shall keep CUSTOMER advised and
updated. The CITY'S personnel will be on site no later than four (4) hours from
notification by CUSTOMER of an impairment or outage materially affecting
service.
7..5 CUSTOMER shall be charged with any false maintenance call outs at the
standard CITY rate in effect at the time services are performed. The CITY'S
rates in effect at the time of execution of this IRU-02.1-Schedule-A and are
subject to change.
7.6 CUSTOMER shall be responsible for all installation, configuration, monitoring
and maintenance associated with any CUSTOMER owned active electronics
operating on the dark fiber leased strands located on the CUSTOMER side of the
demarcation points.
7. The CITY will grant a credit allowance on monthly recurring IRU charges for service
interruption calculated and credited in one (1) hour increments. A service interruption
will be deemed to have occurred only if.
8.1 Service becomes unusable to CUSTOMER as a result of failure of CITY
equipment, facilities, or personnel used to provide the service; and
8.2 The interruption is not the result of.
8.2.1 The negligence or acts of CUSTOMER or its agents, employees suppliers
or contractors;
8.2.2 The failure or malfunction of non -CITY equipment, facilities, or system;
8.2.3 Any circumstances or causes beyond the control of the CITY; or
8.2.4 A service interruption caused by scheduled maintenance, alteration, or
completion of such maintenance or alteration beyond normal time
requirements.
8.3 Such credits will accumulate during a calendar year and be credited against the
CUSTOMER invoiced service charge for the next quarter and will apply only to
those segments experiencing the service interruption.
9. This IRU-02.1 Agreement, including IRU-02.1-Schedule-A IRU-02.1-Schedule-B IRU-
02.1-Schedule-C IRU-02.1-Schedule-D IRU-02.1-Schedule-E, which are attached are
hereby incorporated into the Agreement, dated , 2004 and all of
which constitutes the entire agreement between the Parties with respect to the subject
matter. This IRU-02.1 Agreement cannot be modified except in writing signed by both
Parties.
4
IN WITNESS HEREOF the Parties have executed and delivered this IRU-02.1
Agreement effective the day and year first above written:
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
ERIC T. FRESCH, City Attorney
CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
CUSTOnR
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Title:_dC [c E'S 1 1�)IF� /-i.CjAAkE
By: 1,19AD. 19"66
Print Name bw. o,-F�
Title: &en5 Q�
IRU-02.1-SCHEDULE A
IRU-02.1-Schedule-A
MAINTENANCE AND REPAIR
Charges for Time and Material Service
The CITY shall perform maintenance service at the rates established below,
which rates are subject to change. Unless specifically authorized by the CUSTOMER,
no scheduled Maintenance will be performed outside of normal working hours, detailed
below:
Normal Working Hours
7:00 am. to 3:30 p.m.,
Monday through Friday (except for
CITY observed holidays)
Overtime Hours
6:00 a.m. to 7:00 a.m., and
3:30 p.m. to 12:00 midnight,
Monday through Friday (except for
CITY observed holidays)
Holiday Hours and Special Call out
Any time during a CITY observed holiday
or any time during Saturday or Sunday, or
any time between the hours of 12:00 Midnight
and 6:00 a.m., Monday through Friday
Hourly Rate
$ 85.00
Hourly Rate
$ 105.00
Hourly Rate
$ 130.00
Charges will be made for travel time to the location where maintenance is to be
performed. If maintenance carries over after 3:30 p.m. or any maintenance during
holiday hours of special call out, charges will also be made for travel time from the said
location. Charges will be for a minimum of two (2) hours for normal and overtime hours
and for a minimum of four (4) hours for holiday hours and special call out.
CITY Holiday Schedule:
New Year's Day
President's Day
Veterans Day
Independence Day
Labor Day
Lincoln's Birthday
Columbus Day
Memorial Day
Thanksgiving Day and Day After
Christmas Day
Admission's Day
All rate, charges, and holiday schedule are subject to change.
A-1
IRU-02.1-SCHEDULE B
IRU-02.1-Schedule-B
DARK FIBER PRICING
1.0 APPLICABILITY:
The schedule specifies that connection fees must be agreed upon by the customer prior
to connection of its facilities or buildings to the City's dark fiber network Cable
System. The schedule also specifies the monthly usage fees in return for the
privilege of using the Cable System.
2.0 TERRITORTY:
Within the limits of the City of Vernon.
3.0 FEES:
The IRU Agreement Fees consist of:
A) One-time non -recurring fee elements. They include:
1) Advanced En 'neerin Fees:
The advanced engineering fee is a non-refundable fee required for
Preparing an engineering study, which produces a detailed estimate of the
cost and time required for the City to provide customers dark fiber
connectivity. If the project is constructed, the advanced engineering fee
will be credited against the connection fee.
Advanced Engineering Fee $ 500.00
Special Condition By Estimate
2) Dark Fiber Lateral Connection Fees:
The dark fiber lateral connection fee includes the cost of installing lateral
connections and associated equipment as identified in the advanced
engineering study. The lateral connection starts from an aerial or
underground splice enclosure on the fiber backbone and terminates at the
customer demarcation point. At the demarcation point, the City will place
an accessible patch panel where the customer can have access to the
terminated IRU dark fiber strands.
3) Construction and Installation Fees:
If the point to point connection between the customer buildings cannot be
installed in existing conduit, or attached to existing poles from the first
demarcation point to the second demarcation point, then the customer may
B4
IRU-02.1-Schedule-B
request that the City install new poles, conduit and cable at the customer's
sole expense.
4) Future re -configuration Fees requested by the customer:
The reconfiguration fee includes the costs associated with the
connection/disconnection/re-arrangement of the CUSTOMER System.
The fee shall apply for the initial establishment and cutover of a
customer's point-to-point or distribution Cable System (ring or segment).
The customer shall pay for all services added or deleted, or rearranged
subsequent to the cutover date and shall pay for all connection services.
The fees are:
Service Addition: $300.00 per strand
Service Deletion: $150.00 per strand
Service Re -arrangement: Project specific.
5) Other Fees..
5.1 Early Termination Fees:
Early termination of the Agreement is subject to the Termination
Settlement Charges described in Section 8.8 of the Optical Fiber Use
Agreement.
5.2 Annual Fee Adjustments:
All fees are subject to annual consumer price index (CPI) adjustments
at each anniversary of the effective date of the IRU Agreement.
B) Monthly recurring fee elements. They include:
1) Building Entry Management Fees:
The Building Entry Management Fee is a monthly recurring fee
associated with the lateral cable management practices. It covers the
routine and preventive maintenance practices associated with the lateral
connections. The monthly fees are $100.00 per building entry.
2) Dark Fiber backbone IRU Fees:
The table below describes the City Fiber Optic Backbone strand pricing
for a point-to-point building connections. The monthly rate per strand
varies depending on the system availability and other factors such as
quantity of fiber strands requested, the length of the fiber path, and the
topology.
IRU-02.1-Schedule-B
PRIMARY
PATH
PROTECT
DUNDANT) PATH
Fiber
Ouantities
First Mile per strand per
month
Additional miles per
strand per month
First Mile per
strand per month
Additional miles per
strand per month
1-2
$ 180
$ 90
$ 90
$ 45
34
$ 140
$ 70
$ 70
$ 35
5-6
$ 100
$ 50
$ 50
$ 25
7-12
$ 40
$ 20
$ 20
$ 10
The discounted pricing applies when a customer signs up for more than
one pair of fiber strands. Customer can sign up for a protect path point-to-
point circuit to obtain physical redundancy in the Cable System for its
primary path point-to-point circuit. The primary and protect path circuit
end points terminate in the same demarcation point at each customer site.
A complete circuit consists of two strands of a fiber optic cable terminated
at each customer site demarcation point, there shall be two ports available
each for the primary and protect paths for the customer to use.
The following discounts aDplv:
a) Route Length Discount: The Route length discount ranges from $0 to
$90.00 per fiber mile per month. For the purpose of this IRU-02.1
Agreement, a "Route" is that portion of the Cable System that extends
between the customer points of connections. The Route will include
lateral extension into the customer building, as identified in IRU-02.1-
Schedule-E. Route miles shall be actual number of fiber strand miles
connecting customer connection points, identified as customer System.
b) Fiber quantity discount: The discount for quantities of fiber leased on a
specific -Route ranges from $0 to $140.00.
c) Ring topology discount: The ring topology discount ranges from $0 to
$135.00 per fiber mile per month.
M
IRU-02.1-SCHEDULE C
IRU-02.1-Schedule-C
SUMMARY
IRU-02.1 Agreement INVOICE
The summary IRU-02.1 Agreement Invoice provides a summary of all
transactions of this IRU-02.1 Agreement.
C.1 Transactions Invoice:
ITEM Description IRU Fees
I One-time Advanced Engineering Fee Waived
2 One-time Construction and Installation Fee Waived
3 One time Connection Fee Waived
4 Quarterly IRU-02.1 Base Charges $ 2,040.00
(March 2004 through May 2004)
Total IRU-02.1 Agreement Fees
$ 2,040.00
Note: Transaction invoices reflect the services purchased from the CITY by the
CUSTOMER and shall be the amount due the CITY upon CUSTOMER
acceptance. This invoice reflects no federal, state, or local taxes. Taxes, as may
be appropriate, shall be added or invoiced separately.
C-1
IRU-02.1-SCHEDULE D
IRU-02.1-Schedule-D
CABLE SYSTEM SPECIFICATIONS
1. General
The CITY shall install and maintain the CUSTOMER System within the CITY'S
Cable System in accordance with the criteria and specifications that follows:
2. Design Criteria
The CITY will endeavor to keep the number of splices in a span to a minimum.
3. Optical Fiber Specifications
The CITY will meet the optical specifications as detailed below for all cable
installed for the Term of this Short Form IRU Agreement:
Single Mode Fiber:
Parameter_ Specifications Units
Maximum attenuation, 1310nm 0.5 dB/Km
Maximum attenuation, 1550nm 0.4 dB/Km
Cladding diameter 125 +/- 3 um
Core diameter 8.3 um
Cutoff Wavelength 1250 +/- 100 mn
Zero dispersion wavelength 1310 +/- 12 nm
Maximum dispersion (1285-1330 run) 3.5 ps/(nm-km)
4. dice Loss
Splice loss on CITY cables will average less than or equal to 0.15 dB for all
splices the CITY makes under this IRU-02.1 Agreement. The 0.15 dB splice average
will only apply to splices between cables of identical physical and optical properties
(i.e., core and cladding dimensions, reflective index and optical loss characteristics). All
splices shall be measured using bi-directional methods and averages.
5. End -to -End Attenuation Test Criteria
The CUSTOMER System will be tested at both wavelengths specified for the
installed cable type as specified below unless . otherwise stated in this IRU-02.1
Agreement:
D-1
IRU-02.1-Schedule-D (Continued)
Single Mode Fiber 1310 nm and 1550 nm
The end -to -end attenuation test criteria will be based on the following formula:
Maximum acceptable end -to -end attenuation = (A X Lx) + (0.15 X Nsp) + C
Where:
A = Max. attenuation at each wavelength as specified in Section 3 above
Lx = Installed length of cable in kilometers (km)
Nsp = Number of fiber splices in the cable sysem
C = Connector/pigtail loss. The attenuation contribution of each pigtail with
associated connector is considered to be 1.0 dB comprised of 0.85 dB
connector loss and 0.15 dB- splice loss (pigtail to OSP cable splice).
Therefore, C = 1.0 dB if the span is connectorized on one end and 2.0 dB if
connectorized on both ends.
5j The parameters above are guaranteed unless otherwise specified
5.2 In the event that the fiber measured attenuation values change after the
cable is installed and is degraded by 2db or greater than specified above, the CITY will
perform corrective maintenance pursuant to IRU-02.1-Schedule - D of this original
specified attenuation values.
Analo2 Video
The CITY will not warrant CUSTOMER analog video transmission within the
foregoing system parameters.
D-2
IRU-02.1-SCHEDULE E
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EXHIBIT B
«B"
TROUBLE -REPORTING
PROCEDURE
Exhibit `B"
EXHIBIT `B"
TROUBLE -REPORTING PROCEDURE
The CITY maintains its fiber optic network (Cable System) in accordance with
industry standards. Should a problem or trouble with the service arise, please call 323-
826-1461 (24 hours) to report trouble. This is the number of the CITY'S Technical
Control Center (TCC). The TCC will inform the maintenance and management group of
all trouble calls. The acting Maintenance Supervisor will initiate the indicated trouble
into the restoral action and coordinate all restoration activity. The CUSTOMER can
obtain the name and telephone number of the acting Maintenance Supervisor from the
TCC at the time of trouble reporting. Upon clearance of the trouble, the TCC will notify
the trouble -reporting location of clearance and reason for trouble.
The CITY shall within four (4) hours of notification of the trouble -reporting be on
site and begin investigating and correcting the reported condition. The CITY, at four-
hour intervals, shall provide the CUSTOMER a report of progress or lack thereof in
restoring the system to operation in accordance with the Customer System/Cable System
Specifications of the Short Form IRU Agreement's Schedule-D.
Exhibit "B"
EXHIBIT C
6GC99
INSURANCE ENDORSEMENT FORMS
EXHIBIT "C"
A
EXHIBIT C
INSURANCE SCHEDULE
Customer shall provide proof of insurance, including a standard certificate of insurance, in at
least the following amounts and coverage (combined single limit permitted):
I. Coverage and Limits
Bodilv Iniury P_ ropgU Damage
Hazards Each Person Each Accident Each Accident
Automobile Liability
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -Owned Automobiles $ 500 000 $1 000 000 $ 500 000
Workers' Compensation $ Statutory
Employers' Liabiliiv $1 000 000 per employer
11. Liabili
General Liability
$1,000,000
$2,000,000
$1,000,000
Premises Operations
$1,000,000
$2,000,000
$1,000,000
Elevators (If Applicable)
$1,000,000
$2,000,000
$1,000,000
Independent Contractors
$1,000,000
$2,000,000
$1,000,000
Products - Completed Operations
$1,000,000
$2,000,000
$1,000,000
Contractual Liabilitv
$1 000 000
$2 000 000
$1,000,000
Umbrella Liability
$2 Al 000
$2 000,000
$2,000,000
a . The general liability policy shall contain the following special endorsements which shall be
noted on or attached to the standard certificate of insurance:
I. An endorsement naming the City of Vernon, its officers, and employees as additional
insureds under the policy.
2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or
material reduction of coverage.
3. An endorsement providing coverage for all operations under this Agreement.
4. Such other endorsement as may be required by addendum hereto.
b. In addition to the standard certificate of insurance, proof of liability coverage shall be
furnished in the form checked below.
X For each policy, a notarized letter from the underwriter or carrier certifying that the
coverage and statements in the standard certificate of insurance (attached thereto) are true
and correct and that the signator is an officer authorized to so certify.
OR
A copy of each policy certified by an officer of the underwriter or carrier and notarized.
City will not accent the above proofs of insurance when certified by an insurance agent or
broker.
EXHIBIT "C"