Resolution No. 8710
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RESOLUTION NO. 8710
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON
APPROVING AND AUTHORIZING THE EXECUTION OF AGREEMENT
NO. FO-344-01/2005 OPTICAL FIBER USE LEASE AGREEMENT
BY AND BETWEEN THE CITY OF VERNON AND THE DEPARTMENT
QF WATER AND POWER OF THE CITY OF LOS ANGELES
7 WHEREAS, the City of Vernon ("Vernon") has installed a
8 fiber-optic cable network around the perimeter of the City and is
9 providing excess unactivated or dark fibers to businesses in the City
10 to enable such businesses to have access to voice, data and/or video
11 services; and
12 WHEREAS, the Department of Water and Power of the City of
13 Los Angeles ("LADWP") has an existing optical fiber cable system
14 throughout the City of Los Angeles and is willing from time to time to
15 provide excess fibers in the Cable System to Vernon as well as provide
16 the use of certain other property owned by LADWP, including, but not
17 limited to, innerduct, conduit, building entrance facilities and
18 associated appurtenances (collectively, the "Cable System"); and
19 WHEREAS, the City has determined that interconnecting
20 Vernon's fiber optic backbone to two telecommunications central
21 offices in downtown Los Angeles via LADWP's fiber optic backbone and
22 taking advantage of the existing Cable System provides businesses in
23 the City with access to enhanced communication services; and
24 WHEREAS, the City and LADWP have negotiated an Optical Fiber
25 Use Lease Agreement No. FO-344-1/2005 and a Short Form IRU-Ol Lease
26 Agreement No. FO-345-01/2005 for the use of the Cable System; and
27 WHEREAS, by letter dated March 31, 2005, Bruce V.
28 Malkenhorst, the City Administrator/City Clerk, has recommended that an
1 Optical Fiber Use Lease Agreement and a Short Form Indefeasible Right
2 of Use Lease Agreement with LADWP be approved and executed.
3 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
4 CITY OF VERNON AS FOLLOWS:
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SECTION 1:
The City Council of the City of Vernon hereby
6 finds and determines that the recitals contained hereinabove are true
7 and correct.
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SECTION 2:
The City Council of the City of Vernon hereby
9 approves Agreement No. FO-344-01/2005 Optical Fiber Use Lease
10 Agreement and Agreement No. FO-345-01/2005 Short Form IRU-01 Lease
11 Agreement with LADWP, a copy which is attached hereto as Exhibit "A"
12 and incorporated by this reference.
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SECTION 3:
The City Council of the City of Vernon hereby
14 authorizes the Mayor to execute said Agreements for, and on behalf of,
15 the City of Vernon and the City Clerk is hereby authorized to attest
16 thereto.
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SECTION 4:
The City Council of the City of Vernon hereby
18 directs the City Clerk, or his designee, to send two fully executed
19 Agreements to LADWP.
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SECTION 5:
The City Clerk of the City of Vernon shall
21 certify to the passage of this resolution, and thereupon and
22 thereafter the same shall be in full force and effect.
23 APPROVED AND ADOPTED this 13th day of April, 2005.
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w~~~
./ ~LEONIS C. MA RG, ayor
ATTEST:
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BRUCE V. MALKENHORST, City Clerk
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STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
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I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8710, was duly adopted by the City Council of the City of Vernon at a
special meeting of the City Council duly held on Wednesday, April 13,
thereafter was duly signed by the Mayor of the City of
8 2005, and
9 Vernon.
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13 ( SEAL)
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BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
A
AGREEMENT NO. FO-344-01/2005
OPTICAL FIBER USE LEASE AGREEMENT
BETWEEN
THE DEPARTMENT OF WATER AND POWER OF THE CITY OF LOS ANGELES
AND
CITY OF VERNON
TABLE OF CONTENTS
1.0 Definitions................. .............. ................ ...... ................ ...... ................. .................... 4
2.0 Term.. .................................. ................................. ...... ..... .............. ........ ........... ....... 5
3.0 Taxes............... ............................. .... ................ ..... ........... ........... .......... ...... ..... ...... 5
4.0 Maintenance................................................................ ........................... ...... .......... 6
5.0 Safety........... ....... .......... ..... ............................ ..................................... .......... ......... 8
6.0 Representations Regarding Authorizations ............................................................. 9
7.0 Freedom of Action .................... ........... .... ............................. ..... ............................. 9
8.0 Compliance with Law... ................. ...... ............................ ............................. ........... 10
9.0 Relocations of the Facilities ............. ........................... ................. ..... ...................... 10
10.0 Events of Termination ... ...................... ................................. ........... ........................ 10
11.0 Administration of this Agreement ............................................................................ 12
12.0 Indemnification... ................ ...... ................ ..... ...... ..... ....... .................... ........... ......... 13
13.0 Insurance. ........... ...................................... ....... .......... .......... ...... ........... ........... ....... 14
14.0 Default. .......... ....................... .......... ........... ...... ..... ...... ..... ...... ........... ...... ..... ..... ...... 16
15.0 Force Majeure .................. ............. ........... ..... ...................... ...... ........... ................... 18
16.0 Assignment ................. ..... ...... ..... ...... ................ ...... ..... ...... ..... ...... ........... ..... .......... 18
17.0 Waiver of Terms or Consent to Breach ................................................................... 18
18.0 Relationship Not a Partnership or an Agency ......................................................... 19
19.0 No Third-Party Beneficiaries ................... ...... ..... ........ ............... ........... ................... 19
20.0 Effect of Section Headings ........ .............................................................................. 19
21.0 Notices..... ...... ........ ...... ..... ...... ......................... .......... ......... ...... ................ .............. 19
22.0 Severability............. ........... ..........................................~..... ........ ........ ...... ..... .......... 20
23.0 Governing Law..... ................ ...... ..... ...................... ...... ..... ........... ...... ..~......... ........... 20
24.0 Use of the Leased CUSTOMER SYSTEM ....~......................................................... 21
25.0 Plurals.................... ..... ........... ........... ............ ..... ...... ........... ............ .... .............. ...... 21
26.0 Parts of Agreement ................... ...... ......... ..., ......... ...... ...... ........ ......... ..... ...... .......... 22
27.0 Counterparts..... ..... ........ ......... .......... ............ ..... ..... ........ ............. ..... ...... ...... .... ...... 22
28.0 Acceptance Testing ...................... ...... ..... ...... ................. ...... .................................. 22
29.0 Billing and Payment ......... ..... ...... ..... ....... ..... ..... ............................. ...... ................... 22
30.0 Title ....... .................... ............ ........................... ................ ........... ........... ...... ..... ...... 23
31.0 Entire Agreement ............ ...... ..... ...... ....... .......... ...... ............................ .................... 24
Appendix A - Agreement No. FO-345-01/2005 (IRU-01)................................................... 26
IRU-01-Exhibit A - Approved Optical Fiber Rings and Building/Premise Optical
Fiber Entries
IRU-01-Exhibit B - Summery IRU/Agreement Invoice
IRU-01-Exhibit.C - Connect/Disconnect/Rearrange Charges
IRU-01-Exhibit 0 - Cable System Specifications
IRU-01-Exhibit E -Maintenance/Repair Charges
Appendix B - Trouble-Reporting Escalation Procedure..................................................... 39
Appendix C -Insurance Endorsement Fonns .................................................................. 41
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AGREEMENT NO. FO-344-1/2005
CITY OF VERNON
OPTICAL FIBER USE LEASE AGREEMENT
THIS OPTICAL FIBER USE AGREEMENT (hereinafter referred to as the "Agreementj
made and entered into as of the _day of , 2005, between the
DEPARTMENT OF WATER AND POWER OF THE CITY OF LOS ANGELES
(hereinafter referred to as the "Department" or "Owner"), acting by and through the
Board of Water and Power Commissioners, having an office at 111 North Hope Street,
Los Angeles, California 90012, and. City of Vernon (hereinafter referred to as "Vernon"
or "CUSTOMER"), a municipal corporation, with its principal office at 4305 Santa Fe
Avenue, Vernon, CA 90058, and which are sometimes referred to individually as "party"
and collectively as "Parties."
WHEREAS, the Department has an existing optical fiber cable system
(hereinafter referred to as the "Cable Systemj throughout the City of Los Angeles,
State of California; and
WHEREAS, the Department has excess fibers in the Cable System and is wiNing,
from time to time, to provide such fibers to CUSTOMER and to grant CUSTOMER an
Indefeasible Right of Use or IRU (as hereinafter defined) in and to such fibers for the
purpose of providing telephone, telecommunications, data, and/or video services, and
WHEREAS, in connection With the grant to CUSTOMER of an IRU in and to such
fibers, the Department is willing to allow CUSTOMER to use certain other property
owned by the Department, including, but not limited to, innerduct, conduit. building
entrance facilities and associated appurtenances; and
WHEREAS, in connection with undertaking one or more projects for which the
Department Will provide fibers in the Cable System to CUSTOMER, the parties have
agreed to enter into this Agreement which embodies the mutual covenants and
agreements for the long tenn relationship between the Parties hereto and for each sucl1
project; and
WHEREAS, the Parties have agreed to enter into separate short form
Agreement(s) (hereinafter referred to, collectively or separately as the "Short Fonn IRU
Agreement") which Will incorporate the covenants and agreements of this Agreement
and which wHl also set forth the terms and provisions unique to each specific project;
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:
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1. DEFINITIONS:
1.1 The following terms, whether in the singular or in the plural, when used in
this Agreement and initially capitalized, shall have the meaning specified:
a. Acceptance Date: The date, pursuant to the procedures set forth in
Section 28.1 herein, on which CUSTOMER finds the fiber(s) to be
in conformance with the technical specifications.
b. AQreement: This Optical Fiber Use Lease Agreement.
c. Demarcation Point: A point on one side of which is the
CUSTOMER's responsibility for liabilities, ensuring connections,
and paying for and installing Equipment; the other side of the
Demarcation Point is the Department's responsibility for liabilities,
ensuring connections, and paying for and instalting equipment.
d. Short Form IRU Lease AQreement: Any number of short form
agreements, in the general form attached hereto as Appendix A,
between the Department and CUSTOMER which identify the
specific optical fiber strands and facilities to be as 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 and made a part hereof.
e. Leased CUSTOMER SYSTEM: The optical fiber strands,
innerduct, conduit, building entrance facilities and associated
appurtenances; collocation space, auxiliary power and standby
generator capacity; and space on building tops, towers and other
structures made available by the Department for the purpose of
installing wireless communications antennas and associated
equipment, 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 space and fiber strands at
demarcation points as specified in the applicable Short Form IRU
Agreement(s).
f. Termination Settlement Chames: Any payment for services
rendered owed to the Department by CUSTOMER pursuant to an
applicable Short Form IRU Agreement(s).
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2. TERM:
2.1 Unless sooner terminated in accordance with the terms of this Agreement,
the term of this Agreement is five (5) years (hereinafter referred to as the
"Term"), commencing on the date of this Agreement (hereinafter referred
to as the "Commencement Date"). The term of each Short Form IRU
Agreement, and any renewal or extension terms thereof, shall be set forth
in the applicable Short Form IRU Agreement for each portion of the
Leased CUSTOMER SYSTEM, but in no event shall the term exceed the
term of this Agreement.
3. TAXES:
3.1 The Department shall be responsible for and shall timely pay any and all
taxes and franchise, license and permit fees based on the physical
location of the Cable System and/or the Leased CUSTOMER SYSTEM
and/or the construction thereof in, on, across, along or through public or
private roads, highways or rights-of-way. .
3.2 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 as a
telecommunications services provider in the City of Los Angeles and other
California locations and for its use of the Leased CUSTOMER SYSTEM
during the Term of this Agreement. In the event any such Taxes are
imposed on or assessed against CUSTOMER, including, but not limited
to, Taxes assessed on the basis of revenue received by CUSTOMER due
solely to its use of the Leased CUSTOMER SYSTEM and/or based solely
on the physical location of the Leased CUSTOMER SYSTEM,
CUSTOMER shall have the right to protest, by appropriate proceedings,
the imposition or assessment of any such Taxes. In such event,
CUSTOMER shall indemnify and hold the Department harmless from any
expense, legal action or cost, including reasonable attorney's fees,
resulting from the exercise of its rights under this Section 3.2. In the event
of any refund, rebate, reduction or abatement to CUSTOMER of any such
Taxes, CUSTOMER shall be entitled to receive the entire benefit of such
refund, rebate, reduction or abatement.
4. MAINTENANCE:
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4.1 All maintenance and repair functions on the Cable System and all facilities
through which the Cable System passes, including, but not limited to,
conduit, innerduct, poles, and equipment shall be performed by or under
the direction of the Department with reasonable notice to CUSTOMER.
Except as otherwise provided for in Sections 4.1, 4.2, 4.3, and 4.4, herein,
CUSTOMER is prohibited from performing any maintenance or repair on
the Cable System or leased CUSTOMER SYSTEM. CUSTOMER shall
have the right to have an employee or representative available to assist
the Department in any maintenance or repair of the leased CUSTOMER
SYSTEM. The Department shall maintain the leased 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 Exhibit D.
a. Emeraency Maintenance: The Department shall undertake and
provide for or pay for emergency maintenance and repair activities
for the leased CUSTOMER SYSTEM at the Department's sole cost
and expense. The Department shall respond to any failure,
interruption or impairment in the operation of the leased
CUSTOMER SYSTEM within four (4) hours after receiving a report-
of any such failure, interruption or impairment. The Department .
shall use its best efforts to perform maintenance and repair to
correct any failure, interruption or impairment in the operation of the
leased CUSTOMER SYSTEM when reported by CUSTOMER in
accordance with the procedures set forth in Appendix B attached
hereto and made a part hereof. In the event the Department fails to
perform any necessary Emergency Maintenance in accordance
with the procedures set forth in Appendix B, CUSTOMER shall
have the right, but not the obligation, to undertake such Emergency
Maintenance of the leased CUSTOMER SYSTEM, at the
Department's sole cost and expense, provided that CUSTOMER
complies with the notification and approval process in Section 4.4.
b. Scheduled Maintenance: The Department from time to
time will schedule and perform specific periodic
maintenance to protect the integrity of the Cable System
and/or leased CUSTOMER SYSTEM and perform
changes or modifications to the Cable System and/or
leased CUSTOMER SYSTEM at CUSTOMER's request.
CUSTOMER may request Scheduled Maintenance by
delivering to the Department a Statement of Work
detailing the service CUSTOMER desires to be
performed, including the time schedule for such services.
Upon receipt of such a Statement of Work, the
Department will provide an estimate of the price and
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timing of such Scheduled Maintenance. Following
CUSTOMER's acceptance of such estimate, the
Department will schedule and perform such Scheduled
Maintenance. The Department will perform Scheduled
Maintenance on a time-and-materials basis at the
standard Department rates in effect at the
time services are performed. Department rates in effect
will be those identified in Exhibit A of the most recent
Short Form IRU Agreement and such rates are subject to
change at a rate not to exceed the cumulativ~ CPI rates of
previous years since the last rate change.
4.2 In the event the Department, or others acting in the Department's behalf,
at any time during the Term of this Agreement, discontinues maintenance
and/or repair of the Leased CUSTOMER SYSTEMS, CUSTOMER, or
others acting in CUSTOMER's behalf, shall have the right, but not the
obligation, to thereafter provide for the previously Department provided
no-cost maintenance and repair of the Leased CUSTOMER SYSTEM, at
the Department's sole cost and expense. In the event the Department
discontinues and CUSTOMER implements the maintenance, CUSTOMER
agrees that the maintenance labor costs charged the Department shall be
no greater than those Department rates identified in Exhibit A of the most
recent Short Form IRU Agreement. Any such discontinuance shall be
upon not less than six (6) months prior written notice to CUSTOMER. In
the event of such discontinuance, the Department shall obtain for
CUSTOMER, or others acting in CUSTOMER's behalf, approval for
adequate access to the rights-of-way on or within which the Leased
CUSTOMER SYSTEM is located, for the purpose of permitting
CUSTOMER, or others acting in CUSTOMER's behalf, to undertake such
maintenance and repair of the Leased CUSTOMER SYSTEM provided
that CUSTOMER complies with the notification and approval procedure in
Section 4.4.
4.3 In the event any failure, interruption or impairment adversely affects both
the Department's electrical service capacity and the Leased CUSTOMER
SYSTEM, restoration of the Leased CUSTOMER SYSTEM shall at all
times be subordinate to restoration of the Department's electrical service
cap~city, unless otherwise agreed to in advance by the parties hereto. In
such event or in the event the Department is unable to provide timely
repair service to the Leased CUSTOMER.SYSTEM, the Department shall
permit CUSTOMER to make repairs to restore the Leased CUSTOMER
SYSTEM as long as such restoration efforts do not interfere with the
Department's restoration activities and provided that CUSTOMER
complies with the notification and approval procedure in Section 4.4.
CUSTOMER agrees that CUSTOMER's repair and restorallabor costs
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charged the Department shall be no greater than those Department rates
identified in Exhibit A of the most recent Short Form IRU Agreement.
4.4 Any CUSTOMER subcontractors or employees who undertake repair or
maintenance work on the Leased CUSTOMER SYSTEM shall first be
approved by the Department to work in the Department's high voltage
electrical environment. Prior to CUSTOMER's undertaking Emergency
Maintenance or entering a Department's facility for repair, CUSTOMER
shall first notify the Department of the contemplated action and receive the
Department's concurrence decision, a decision that the Department shall
provide to CUSTOMER no later than four hours from CUSTOMER's
notification to Department of contemplated action. When CUSTOMER
undertakes Emergency Maintenance of the Leased CUSTOMER
SYSTEM, CUSTOMER shall have a Department employee or
representative ,available to assist the CUSTOMER in any repair of the
Leased CUSTOMER SYSTEM.
5. SAFETY:
5.1 When CUSTOMER assumes maintenance or repair responsibility, the
CUSTOMER shall comply with all safety requirements, including but not
limited to those set forth in Sections 5.2, 5.3, 5.4,5.5, and 5.6.
5.2, The CUSTOMER shall comply and require that all subcontractors or ,
employees comply with all federal, state, and local regulations pertaining
to safety and health, including but not limited to Construction Safety Order
1509 and General Industry Safety Order 3203 of Title 8 of the California
Code of Regulations, as said regulations relate to the work to be
performed under this contract.
5.3 The CUSTOMER, employees, and subcontractors shall possess and have
available on the job site, at all times, for inspection by the Department, an
Injury and Illness Prevention Program (IIPP) conforming to Cal OSHA
regulations.
5.4 The CUSTOMER, at no expense to the Department, shall furnish and
require all subcontractors or employees to furnish all necessary safety
.equipment, including but not limited to personal protective equipment,
safety devices, and safeguards.
5.5 The Department reserves the right to review safety programs and
practices and make recommendations to the CUSTOMER. Any such
review or recommendation by the Department shall not increase the
Department's liability or responsibility and shall not relieve the
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CUSTOMER from providing a safe work environment and complying with
legal requirements.
5.6 If the Department confirms that there is a material deviation from any
regulatory agency's requirements or the IIPP that could result in serious
injury, the CUSTOMER may be ordered to stop work. Successive failures
by the CUSTOMER to comply with any regulatory agency's requirements
or the CUSTOMER's IIPP may result in termination of this Agreement.
6. REPRESENTATIONS REGARDING AUTHORIZATIONS:
6.1 The Department hereby represents, warrants and covenants to
CUSTOMER that:
a. The Department is a Proprietary Department of the City of Los
Angeles, a municipal corporation of the State of California. The
Department, organized and existing under the Charter of the City of
Los Angeles, has the power and authority to posses, manage,
control, operate and lease the Cable System and the Leased
CUSTOMER SYSTEM and perform the obligations required of the
Department under the terms of this Agreement.
6.2 CUSTOMER hereby represents, warrants and covenants to the
Department that:
a. CUSTOMER has obtained and will use its best efforts to maintain
throughout the Term of the Agreement, each and every
authorization necessary for CUSTOMER to offer its telephone,
telecommunications, data, Internet, cable television or other video
services in the State of California and the City of Los Angeles.
b. CUSTOMER has full right and authority under its authorizations to
enter into this Agreement and the execution and performance of
this Agreement by CUSTOMER shall not conflict with, or constitute
a default under, or constitute an event of termination under, any of
, its authorizations.
7. FREEDOM OF ACTION:
7.1 Nothing in this Agreement shall be construed to restrict either Party's
conduct of its business. Department, without limitation, may construct and
install additional optical fiber cables systems for any purpose whatsoever
outside this agreement.
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8. COMPLIANCE WITH LAW:
8.1 Each Party hereto agrees that it will perform its respective rights and
obligations hereunder in accordance with all applicable laws, rules and
regulations of the city 9f Los Angeles, state of California, and federal
government.
9. RELOCATION OF THE FACILITIES:
9.1 CUSTOMER recognizes that, from time to time, the Department may elect
or be required by parties other than the CUSTOMER to relocate the Cable
System and/or the Leased CUSTOMER SYSTEM, or a portion thereof.
The Department shall be solely responsible for all costs incurred in
relocating the Cable System and/or the Leased 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 Department
agrees to give CUSTOMER at least three (3) months prior written notice of
any elected relocation. The Department agrees to give CUSTOMER
reasonable notice of any governmental proceedings which might result in
a relocation and CUSTOMER shall have the right to participate in any
such proceedings.
10. EVENTS OF TERMINATION:
10.1 Condemnation:
10.1.1
10.1.2
If at any time during the Term of this Agreement, all or any
significant portion of the Cable System or the Leased
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 or the affected Short
Form IRU Agreement upon giving the other party sixty (60)
days prior written notice. In the event this Agreement or the
affected Short Form IRU Agreement is terminated in
accordance with this Section 10.1.1, 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 Leased
CUSTOMER SYSTEM.
Upon its receipt of a formal notice of condemnation or taking,
the Department shall notify CUSTOMER immediately of any
condemnation proceeding filed against the Cable System,
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including the Leased CUSTOMER SYSTEM, or the
Authorizations in or upon which the Leased CUSTOMER
SYSTEM shall have been installed.
The Department shall also notify CUSTOMER of any similar
threatened condemnation proceeding and agrees not to sell the
Leased CUSTOMER SYSTEM or Authorizations to such
acquiring agency, authority or other Party in lieu of
condemnation without prior written notice to CUSTOMER.
10.2 Damaae or Destruction of Leased CUSTOMER SYSTEM: If at any time
during the term of this Agreement or specific Short Form IRU Agreement
all or any significant portion of the Cable System or Leased CUSTOMER
SYSTEM provided by the specific Short Term IRU Agreement shall be
made inoperable and beyond feasible repair, CUSTOMER may terminate
the specific Short Form IRU Agreement upon giving thirty (30) days written
notice to the-Department. In the event this Agreement 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 (i) under any insurance policy carried by either Party
or any third Party, or (ii) seek recovery from any third party which may be
legally responsible for causing such damage or destruction.
10.3 Catastrophic Outaae: If at any time during the term of this Agreement the
ability of the Cable System or Leased CUSTOMER SYSTEM, provided by
specific Short Form IRU Agreement, to transmit telephone,
telecommunications, data, internet or video services shall be interrupted or
degraded below the specifications in the Short Form IRU Agreement
Exhibit D (i) in the case of a force majeure event, for thirty (3D)
consecutive days, or (ii) in the case of a non-force majeure event, for five
(5) consecutive days, then either Party may elect to terminate the specific
Short Form IRU Agreement upon giving thirty (3D) days written notice to
the other Party. In the case of a non-force majeure event, each Party
shall be entitled to recover the economic value of their respective interest
in the cable (i) under any insurance policy carried by either party or any
third party, or (ii) seek recovery from any third party which may be legally
responsible for causing such damage or destruction.
10.4 Relocation: If the Department, in accordance with Section 9.1, after using
its best efforts to undertake such relocation, cannot relocate the Leased
CUSTOMER SYSTEM or affected portion thereof, CUSTOMER may
terminate the applicable Short Term IRU Agreement upon giving at least
thirty (30) days written notice to the Department.
10.5 Obsolete Cable System: If at any time during the term of this Agreement,
CUSTOMER can demonstrate that the Cable System and/or any portion
or portions thereof have become technically obsolete, then the
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CUSTOMER shall have the right to mutually elect to terminate this
Agreement or the affected Short Form IRU Agreement upon giving thirty
(30) days written notice to the Department.
10.6 Poor Service: If at any time during the term of this Agreement or specific
Short Form IRU Agreement, CUSTOMER determines that the Cable
System and/or any portions thereof, fails to perform in accordance with the
Specifications set forth in Exhibit D of the affected Short Form IRU
Agreement over a period of at least three (3) consecutive months, and the
Department's efforts during this period have failed to restore the Cable
System to the required Specifications, then the CUSTOMER shall have
the right to terminate this Agreement or the affected Short Form IRU
Agreement(s) upon giving thirty (30) days written notice to the Department
without penalty.
10.7 Department Need: Notwithstanding any provision contained in this
Agreement to the contrary, the Department shall have the right to
terminate any Short Form IRU Agreement upon twelve (12) months written
notice to CUSTOMER if the Leased CUSTOMER SYSTEM provided by
such Short Form IRU Agreement is needed in connection with the
Department's telecommunications needs related to its electric utility
business. At the time of such notice of termination, the Department shall
waive half the annual payment of the Short Form IRU Agreement that the
Department elects to terminate. If the Department terminates, it will use
its best efforts to relocate leased CUSTOMER SYSTEM or any segment
under the affected Short Form IRU Agreement, and if a satisfactory
relocation reroute can be identified, CUSTOMER and Department shall
enter into a new Short Form IRU Agreement. In addition, the Department
shall have the right to terminate this Agreement upon one hundred twenty
(120) days written notice to CUSTOMER if this Agreement creates an
adverse impact upon the status of the Department's tax-exempt bonds.
10.8 Termination Settlement:
10.8.1
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.
11. ADMINISTRATION OF THIS AGREEMENT:
11.1 Within thirty (30) calendar days after the Commencement Date of this
Agreement, CUSTOMER and the Department shall each designate, by
written notice to the other, a representative who is authorized to act in the
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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 authorized
representative or alternate by written notice.
11.2 The authorized representatives shall provide liaison between the Parties in
order to provide effective cooperation, exchange of information and
consultation in a prompt and orderly basis concerning the various matters
which may arise, from time to time, in connection with this Agreement.
11.3 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.
11.4 All actions, agreements, resolutions, determinations or reports made by
the authorized representatives, shall be in writing and shall become
effective when signed by both authorized representatives. In the event
that the authorized representative is unable to sign any document
contemplated under this Section 11.4, he/she shall obtain the signature of
the appropriate individual, official or officer of his/her respective
organization.
11.5 Any expenses incurred by the authorized representative in connection with
his/her duties shall be paid by the Party he/she represents.
11.6 The authorized representatives shall have no authority to amend, modify,
or extend this Agreement.
12. INDEMNIFICATION:
12.1 The CUSTOMER undertakes and agrees to indemnify and hold harmless
the City of Los Angeles, the Department of Water and Power, the Board of
Water and Power Commissioners of the City of Los Angeles, and all of
their officers and employees, and, at the option of the Department, defend
them, and any and all of their Boards, officers, agents, representatives,
employees, assigns and successors in interest from and against any and
13
all suits and causes of action, claims, charges, damages, demands,
judgments, civil fines and penalties, or losses of 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 Department, its Board, officers, agents, representatives
or employees.
12.2 Except for any payment due to the Department in accordance with Section
29 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, servants, 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 Leased 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, servants
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.
13. INSURANCE:
13.1 During the Term of this Agreement, unless otherwise agreed to in writing
by the authorized representatives, CUSTOMER shall at its own expense,
maintain in effect, insurance coverage with limits not less than those set
forth in Section 13.8, 13.9, 13.10, and 13.11 ,herein.
13.2 The CUSTOMER shall furnish the Department's authorized representative
within thirty (30) days after the commencement date of the Agreement or
of the applicable Short Form IRU Agreement, with insurance
endorsements on the appropriate Department endorsement form(s) as
found in Appendix C of this Agreement. The endorsements shall be
evidence that policies providing coverages and limits of insurance are in
full force and effect. Such insurance shall be maintained by the
CUSTOMER at the CUSTOMER's sole cost and expense.
14
13.3 The CUSTOMER endorsements shall name the City of Los Angeles, the
Board of Water and Power Commissioners of the City of Los Angeles, the
Department of Water and Power of the City of Los Angeles and their
officers, agents and employees, while acting within the scope of their
employment, as additional insureds. The endorsements shall also contain
a provision that the policy cannot be canceled or reduced in coverage or
amount without first giving thirty (30) calendar days written notice thereof
(ten (10) days for non-payment of premium) by registered mail to the
Department at the following address:
Office of the City Attorney
Department of Water and Power of the City of Los Angeles
111 North Hope Street
P. O. Box 111, Room 340
Los Angeles, California 90051-0100
13.4 Such insurance shall not limit or qualify the obligations of the CUSTOMER
assumed under the Agreement. The Department shall not by reason of its
inclusion under these policies incur liability to the insurance carrier for
payment of the premium for these policies.
13.5 Any insurance carried by the Department which may_be applicable shall
be deemed to be excess insurance and the CUSTOMER's insurance is
primary for all purposes despite any conflicting provision in the
CUSTOMER's policies to the contrary.
13.6 CUSTOMER shall be responsible for all CUSTOMER contractors' or
_ subcontractors' compliance with the insurance requirements.
13.7 Failure of the CUSTOMER to maintain such insurance, or to provide such
endorsements to the Department when due, shall be an event of default
under the provisions of this Agreement.
13.8 The CUSTOMER shall obtain and maintain Commercial General Liability
Insurance, including the following coverages: Premises/Operations;
Independent Contractors; Products and Completed Operations; Blanket
Contractual Liability; Personal Injury; and Broad Form Property Damage.
Such coverage shall provide coverage for total limits actually arranged by
the CUSTOMER but not less than $1 million combined single limit. Should
the policy have an aggregate limit, such aggregate limits should not be
less than double the combined single limit and be specific for this
Agreement. Umbrella or Excess Liability coverages may be used to
supplement primary coverages to meet the required limits. Evidence of
such coverage shall be on the Department's additional insured
endorsement form of Appendix C or on an endorsement to the policy
acceptable to the Department's Risk Management Section.
15
13.9 The CUSTOMER shall provide Commercial Automobile Liability insurance
which shall include coverages for liability arising out of the use of owned,
non-owned, and hired vehicles for performance of the CUSTOMER's work
as required to be licensed under the California or any other applicable
state vehicle code. The Commercial Automobile Liability insurance shall
have not less than $1 million combined single limit per occurrence and
shall apply to all operations of the CUSTOMER. Evidence of such
coverage shall be on the Department's additional insured endorsement
form of Appendix C.
13.10 The CUSTOMER shall provide Workers' Compensation insurance
covering all of the CUSTOMER's employees in accordance with the laws
of any state in which the CUSTOMER's work is to be performed and
including Employer's Liability insurance. The limit for Employer's Liability
coverage shall be not less than $1 million each accident and shall be a
separate policy if not included with Workers' Compensation coverage.
Evidence of such insurance shall be in the form of the special
endorsement of insurance of Appendix C and shall include a Waiver of
Subrogation against the Department, its officers, agents, and employees.
Workers' Compensation/Employee's liability exposure may be self-insured
provided that the Department is furnished a copy of the certificate issued
by the State of California authorizing the CUSTOMER to self-insure.
13.11 The CUSTOMER may use an Umbrella or Excess Liability coverage to net
coverage limits specified in the Agreement. Evidence of Excess Liability
shall be in the form of the Department's Excess Liability-Additional Insured
Endorsement form of Appendix C. The CUSTOMER shall require the
carrier for Excess Liability to properly schedule and to identify the
underlying policies as provided for on the Additional Insured Endorsement
form including as appropriate, Commercial General Liability, Commercial
Automobile Liability, Employer's Liability or other applicable insurance
coverage.
13.12 The foregoing insurance requirements are not intended to and shall not in
any manner limit or qualify the liabilities and obligations assumed by the
CUSTOMER under this Agreement.
13.13 The CUSTOMER has the right and option to self-insure all insurance
coverage in this section.
14. DEFAULT:
14.1 CUSTOMER shall not be in default under this Agreement, or in breach of
any provision hereof unless and until the Department shall have given
16
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 Department, the Department 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.
14.2 The Department shall not be in default under this Agreement or in breach
of any provision hereof unless and until CUSTOMER shall have given the
Department written notice of such breach and the Department shall have
failed to cure the same within thirty (30) days after receipt of such notice;
provided, however, that where such breach cannot be reasonably be
cured within such thirty (30) day period, if the Department 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 Department 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 orin
equity.
14.3 If CUSTOMER or the Department, 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
fec;teral or state law, or shall be adjudicated a 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 Department, 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 Department, as the
case may be, of all or substantially all of the assets of CUSTOMER or the
Department, as the case may be, shall be appointed in any proceeding
brought by CUSTOMER or the Department, as the case may be, and shall
consent to or acquiesce in such appointment, then the other Party hereto
. 17
..
may, at its sole option, immediately terminate this Agreement upon written
notice.
15. FORCE MAJEURE:
15.1 Neither Party shall be liable to the other for any failure of performance
under this Agreement due to causes beyond its control (except for the
fulfillment of payment obligations as set forth herein), including, but not
limited to: acts of God, fire, flood, earthquake or other catastrophes;
adverse weather conditions; material or facility shortages or unavailability
not resulting from such Party's failure to timely place orders therefor; lack
of transportation; the imposition of any governmental codes, ordinances,
laws, rules, regulations or restrictions; national emergencies;
insurrections; riots, wars; or strikes, lockouts, work stoppages or other
labor difficulties (collectively, "force majeure events").
16. ASSIGNMENT:
16.1 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.
16.2 In the event of any assignment or Transfer by either Party undertaken
pursuant to Section 16.1 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.
17. WAIVER OF TERMS OR CONSENT TO BREACH:
18
17.1 No term or provision of this Agreement shall be waived and no breach
excused, unless such waiver or consent shall be in writing and signed by a
duly authorized officer of the Party claimed to have waived or consented
to such breach. Any consent by either Party to, or waiver of, a breach by
the other Party shall not constitute a waiver of or consent to any
subsequent or different breach. If either Party shall fail to enforce a
breach of this Agreement by the other Party, such failure to enforce shall
not be considered a consent to or a waiver of said breach or any
subsequent breach for any purpose whatsoever.
18. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY:
. 18.1 The relationship between CUSTOMER and the Department shall not be
that of partners or agents for one another and nothing contained in this
Agreement shall be deemed to constitute a partnership, joint venture or
agency Agreement between the Parties hereto.
19. NO THIRD-PARTY BENEFICIARIES:
19.1 This Agreement is for the sole benefit of the Parties hereto and their
respective permitted successors and assigns, and shall not be construed
as granting rights to any person or entity other than the Parties or
imposing on either Party obligations to any person or entity other than a
Party .
20. EFFECT OF SECTION HEADINGS:
20.1 Section headings appearing in this Agreement are inserted for
convenience only and shall not be construed as interpretations of text.
21. NOTICES:
21.1 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:
If to CUSTOMER: (One copy to each)
City of Vernon
4305 Santa Fe Avenue
19
Vernon, CA 90058
Attn: Bruce V. Malkenhorst
Telephone No.: (323) 583-8811
Fax No.: (323) 826-1438
And if for Billing related correspondence, a copy to:
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Attn: Bruce V. Malkenhorst
Telephone No.: (323) 583-8811
Fax No.: (323) 826-1438
If to the Department:
Department of Water and Power,
of the City of Los Angeles
Attention: Director of Fiber Optic Enterprise
111 North Hope Street, Room 1155
Los Angeles, California 90012
21.2 Either Party may, by written notice to the other Party, change the name or
address of the person to receive notices pursuant to this Agreement.
22. SEVERABILITY:
22.1 In the event any term, covenant or condition of this Agreement, or the
application of such term, covenant or condition, shall be held invalid as to
any person or circumstance by any court having jurisdiction, all other
terms, covenants and conditions of this Agreement and their application
shall not be affected thereby, but shall remain in force and effect unless a
court holds that the invalid term, covenant or condition is not separable
from all other terms, covenants and conditions of this Agreement.
23. GOVERNING LAW:
23.1 This Agreement shall be interpreted in accordance with the Charter of the
City of Los Angeles, as amended, the laws of the State of Califomia, and
. all applicable federal laws, rules and regulations as if this Agreement were
executed and performed wholly within the State of California. Venues for
any litigation arising from the interpretation or enforcement of this
Agreement shall be in the Superior Court, ,County of Los Angeles,
California. Each party shall pay for its own legal fees.
20
Child Support Policv: The CUSTOMER and any Subcontractor(s) must
fully comply with all applicable State and Federal employment reporting
requirements for the CUSTOMER's employees. The CUSTOMER and
any Subcontractor( s) must fully comply with all lawfully served Wage and
Earnings Assignment Orders and Notices of Assignment in accordance
with the California Family Code. The CUSTOMER and any
subcontractor(s) must certify that the principal owner(s) thereof (any
person who owns an interest of 10 percent or more) are in compliance
with any Wage and Earnings Assignment Orders or Notices of Assignment
applicable to them personally. The CUSTOMER and any Subcontractor(s)
must certify that such compliance will be maintained throughout the term
of this Agreement.
Failure of the CUSTOMER and any Subcontractor(s) to fully comply with
all applicable reporting requirements or to implement lawfully served Wage
and Earnings Assignments or Notices of Assignment or failure of the
principal owner(s) to comply with any Wage and Earnings Assignment or
Notices of Assignment applicable to them personally shall constitute a
default under this Agreement. Failure of the CUSTOMER and any
Subcontractor(s) or principal owner(s) thereof to cure the default within
90 days of notice of such default by the City shall subject this Agreement,
and all Short Form IRU Agreements between the Department and the
CUSTOMER, to termination.
RecvclinQ Policv: The Department supports the use of recycled-content
products of all types. Recycled-content products help conserve natural
resources, including water and energy, and reduce demands upon
landfills.
The contractor shall submit all written documents on paper with a
minimum of 30 percent post-consumer recycled content. Existing
company/corporate letterhead/stationery that accompanies these
documents is exempt from this requirement. Documents of two or more
pages in length shall be duplex-copied (double-sided pages). Neon or
fluorescent paper shall not be used in any written documents submitted to
the Department.
24. USE OF THE LEASED CUSTOMER SYSTEM:
24.1 CUSTOMER shall have exclusive control over its provisioning of
telephone, telecommunications, data, internet, cable television, or other
video services and other services including, without limitation,
CUSTOMER premise and nodal electronics, sales and marketing,
electronics maintenance and monitoring, and billing and collection..
21
24.2 CUSTOMER hereby certifies that it is authorized or will be authorized on
the effective date of any Short Form IRU Agreements to provide its
telephone, telecommunications, data, internet, cable television or other
video services within the State of California and the City of Los Angeles
and that such services can be provided on fiber optic cable systems such
as that owned and operated by the Department.
25. PLURALS:
25.1 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.
26. PARTS OF AGREEMENT:
26.1 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. Each
new or subsequent Short Form IRU Agreement and its Exhibits thereto
shall provide an annual invoice of all billable services that the Department
is providing CUSTOMER under that Short Form IRU Agreement and for
which CUSTOMER is expected to remit annual payment on January 15 of
each year of the Term of the Short Form IRU Agreement.
27. COUNTERPARTS:
27.1 This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and
any of the Parties hereto may execute this Agreement by signing any such
counterparts.
28. ACCEPTANCE TESTING:
28.1 The Department will perform Acceptance Testing. At the conclusion of
such testing, customer shall be presented with testing results. Upon
receipt of said results, CUSTOMER shall have seven (7) calendar days to
provide written acceptance of the tested segment(s) as meeting those
specifications set forth in Exhibit D of said IRU Agreement. Acceptance
22
shall be given, in writing, by using an Acceptance Form. In the absence of
written acceptance within said seven days, CUSTOMER shall be deemed
to have accepted such segment(s) on the day following the seventh day,
provided that the test results support the specifications 'contained in
Exhibit D of the IRU Agreement.
29. BILLING AND PAYMENT:
29.1 The Department shall invoice CUSTOMER for all fees and charges
hereunder as determined by the Short Form IRU Agreement(s) and this
Agreement as follows:
a. CUSTOMER shall pay to the Department the initial fee, as
stipulated in the Short Form IRU, within thirty (30) days of the IRU
execution date.
b. Upon acceptance of each deliverable, the Department shall invoice
CUSTOMER and CUSTOMER shall pay to the Department any
annual recurring and nonrecurring charges then due and as
specified in the authorizing Short Form IRU Agreement (the
"Recurring Fee"). CUSTOMER shall submit payment in full within
thirty (30) days after receipt of the of the Department's invoice.
c. The Recurring Fee shall be payable in advance by the 15th day of
January of each year of the Term of this Agreement; provided,
however, that no such Recurring Fee shall be due for a segment
that has not yet successfully completed the Acceptance Testing
procedures.
d. The first Recurring Fee payment, in addition to any nonrecurring
fees, shall be due upon the Acceptance Date and shall be prorated
through the end of the calendar year.
e. 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 Department. In the event CUSTOMER disputes any invoice, or
portion thereof, received from the Department, 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 Department of the amount so disputed and the reason for the
dispute on or before the due date of the invoice.
23
30. TITLE:
30.1 CUSTOMER agrees that all right, title, and interest in all the Leased
CUSTOMER SYSTEM provided by the Department hereunder and as
specified in the Short Form IRU Agreement shall at all times remain
exclusively with the Department. The Department agrees that all right,
title and interest in Leased CUSTOMER SYSTEM associated equipment
provided by CUSTOMER as specified in the Short Form IRU Agreements
shall at all times remain exclusively with CUSTOMER. The Department
acknowledges that CUSTOMER has contracted for the purchase of an
IRU in the Leased 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.
31. ENTIRE AGREEMENT:
31.1 This Agreement and any subsequent Short Form IRU Agreements entered
into by the parties hereto constitute the entire Agreement between
CUSTOMER and the Department with respect to the subject matter
hereof; all prior agreements, representations, statements, negotiations
and undertakings are hereby superseded.
31.2 The Department and CUSTOMER acknowledge that they are currently
engaged in negotiations to enter into one or more IRU's which may
include the specific terms, conditions and obligations of this Agreement. If
such IRU's are entered into by the Department and CUSTOMER during
the term of this Agreement, the Department and CUSTOMER agree to the
extend they are inconsistent, this agreement shall be superseded by the
terms and conditions of said IRU's, unless otherwise stated in said IRU.
31.3 Each party was represented by legal counsel during the negotiation and
execution of this Agreement and each party will be responsible for its own
attorney fees and costs in any relevant litigation.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized representatives on the day and year written below.
DEPARTMENT OF WATER AND POWER OF
THE CITY OF LOS ANGELES BY
BOARD OF WATER AND POWER COMMISSIONERS OF
THE CITY OF LOS ANGELES
Date:
By:
And:
Secretary
CITY OF VERNON
Date:
By:
LEONIS C. MALBURG, Mayor
~~~
ATTEST:
~ By:
Bruce V. Malkenhorst
Title: City Clerk
APPROVED AS TO FORM
By:
Date: J.lQ1RJ :
Eric. T. Fresch
Title: City Attorney
25
APPENDIX A
All SHORT FORM IRU AGREEMENTS
26
AGREEMENT NO. FO-345-01/2005
CITY OF VERNON
SHORT FORM IRU-01 LEASE AGREEMENT
This Short FormlRU Agreement is made this _day of , 2005;
between the Department of Water and Power of the City of Los Angeles (hereinafter
referred to as the "Department" or "Owner"), acting by and through the Board of Water
and Power Commissioners, having an office at 111 North Hope Street, Los Angeles, CA
90012, and City of Vernon (hereinafter referred to as "Vernon" or "CUSTOMER"), a
corporation, with its principal office at 4305 Santa Fe Avenue, Vernon, CA 90058, and
upon execution shall be a part of the CUSTOMER Optical Fiber Use Agreement No.
FO-344-01/2005 (Agreement) dated ,2005, and subject to all the terms and
conditions therein.
WHEREAS, the Department provides optical fiber strands and facilities in its Cable
System for telephone, telecommunications, data, cable television or other video
services, and CUSTOMER desires to use such Cable System components for its
business in providing telephone, telecommunications, data, cable television or other
video services. The Department optical fiber strands and facilities used by CUSTOMER
are identified in the Agreement as Leased CUSTOMER SYSTEM and likewise shall be
referred to as "CUSTOMER SYSTEM" in this Short Form IRU Agreement.
THEREFORE in consideration of the mutual agreements herein, the parties agree as
follows:
1. The Department hereby grants to CUSTOMER an Indefeasible Right of Use
(IRU) of the following Department Cable System components:
A. Optical fiber strands and Building/Premise Entry to buildings that are listed
in the attached IRU-01 Exhibit A.-Approved Optical Fiber Circuits and
Building/Premise Optical Fiber Entries.
These individual Department cable system components collectively shall be the
CUSTOMER SYSTEM for this Short Form IRU Agreement. The CUSTOMER
SYSTEM shall be inclusive of the Department's fiber optic cable system between
and including the Department's sides of the originating and terminating
demarcation points.
2. The Department will construct, install, and/or provide the CUSTOMER SYSTEM
for CUSTOMER'S use in accordance with the terms of the Agreement and this
Short Form IRU Agreement. The Department 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 the CUSTOMER SYSTEM shall
commence when CUSTOMER notifies the Department that it accepts
CUSTOMER SYSTEM as meeting specifications and operating effectively and
shall be valid for an initial term of three (3) years. The Agreement will
1
automatically renew on a year-to-year basis after the initial term expires, up to a
maximum term of five (5) years, unless notice is given by Customer within thirty
(30) days of the expiration date. The duration of the IRU- 01 will not exceed the
term of the CUSTOMER Optical Fiber Use Agreement No. FO-344-01/2005
(Agreement) dated , 2005. Acceptance period shall not exceed ten (10)
working days beyond cutover date.
4. The Department shall provide the following items for the CUSTOMER SYSTEM
Service:
A. Not Applicable.
5. CUSTOMER shall provide the following items for the CUSTOMER SYSTEM
service:
A. Not Applicable.
6. The payments and charges shall be in accordance with Section 29 of the Optical
Fiber Use Agreement and as specifically identified in the following
subparagraphs:
6.1 Invoiced Charges
6.1.1 Invoiced charges are as stipulated in Exhibit B - Summary IRU.
6.1.2 As included in Exhibit C, 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 acceptance 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. The charges and application rules are
identified in Exhibit C.
7. All maintenance and repair functions on the CUSTOMER SYSTEM and all
facilities through which the CUSTOMER SYSTEM passes, including, but not
limited to, conduit, innerduct, poles and equipment, shall be performed by or
under the direction of the Department.
7.1 Section 4 of the Fiber Use Agreement applies.
7.2 Department shall maintain the CUSTOMER SYSTEM pursuant to the
specifications provided in Exhibit D.
2
7.3 Department shall provide to CUSTOMER a twenty-four (24) hour a day,
trouble-reporting telephone number. CUSTOMER shall provide to
Department 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 Department's side of the
demarcation point shall require a response from the Department. During
CUSTOMER SYSTEM impairments or outages affecting CUSTOMER'S
service, Department shall keep CUSTOMER advised and updated. The
Department's personnel shall respond within 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 Department rate in effect at the time services are performed.
The Department's rates in effect at the time of execution of this Short
Form IRU Agreement are set forth in Exhibit E and are subject to change.
8. . The Department will grant a credit allowance 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
Department 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-Department equipment,
facilities, or system;
8.2.3 Any circumstances or causes beyond the control of the
Department; or
8.2.4 A serviqe 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 (Exhibit B) for the next
year and will apply only to those segments experiencing the service
interruption, except for the final year of the term of this Agreement, in
which DWP will directly reimburse CUSTOMER for any service
interruption credits.
3
9. Ttlis Short Form iRU Agreement, including Exhibits A. B. C. D. and E, which
are attached, are hereby incorporated into the CUSTOMER Optical Fiber Use
No. FO-344-01/2005 dated January, 2005, and all of which constitutes the entire
agreement between the parties with respect to the subject matter. This Short
Form IRU Agreement cannot be modified except in writing signed by both
parties.
10. This Agreement shall be interpreted and enforced in accordance with the Charter
of the City of Los Angeles, as amended, the laws of the State of California, and
all applicable federal laws, rules and regulations as if this Agreement were
executed and performed wholly within the State of California. Venue for any
litigation arising from the interpretation or enforcement of this Agreement shall be
in Los Angeles, California.
11. Each party was represented by legal counsel during the negotiation and
execution of this agreement and each party will be responsible for its own
attorney fees and costs in any relevant litigation.
12. Earlv Contract Cancellation. This Agreement may be cancelled by the Customer,
without cause, on 30 calendar days' written notice and with payment to DWP of a
cancellation fee in the amount of half of the total full payments remaining in the
term, paid in advance of cancellation. This Agreement may be canceled by
DWP, without cause, on 30 calendar days' written notice. Notwithstanding the
above, neither the Customer nor DWP can cancel this Agreement without cause
within the first twelve months of the term.
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their authorized representatives on the day and
year written below.
Date:
Date:
Xhit2X
Date:
By:
And:
By:
Title:
By:
mn:
Title:
DEPARTMENT OF WATER AND POWER OF
THE CITY OF LOS ANGELES BY
BOARD OF WATER AND POWER COMMISSIONERS OF
THE CITY OF LOS ANGELES
Secretary
CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
~J(JDt~
ATTEST:
Bruce V. Malkenhorst
City Clerk
APPROVED AS TO FORM:
Eric. T. Fresch
City Attorney
5
IRU-01 EXHIBIT A
APPROVED OPTICAL FIBER RINGS AND BUILDING/PREMISE
OPTICAL FIBER ENTRIES
A.1 Fiber Building Sites:
LOCATION
NUMBER OF
OPTICAL STRAND ENTRIES
4
Floor Equinix, Los
2
2
6
--..--
. ,
IRU-01 EXHIBIT B
SUMMARY IRU
This Summary IRU provides a summary of all adjusted transactions of the Vernon Short Form
IRU-01 Agreement.
A.1 Fiber Charges:
DESCRIPTION Annual Charges
1 Two (2) Single Mode Dark Optical Fibers originating at $20,196
a demarcation splice or breakout point designated as
Department Splice Canister 377375M, and terminating
at a demarcation splice or breakout point at 1200 W.
7th Street, Room L2-240D.
2 Two (2) Single Mode Dark Optical Fibers originating at $20,196
a demarcation splice or breakout point designated as
Department Splice Canister 377375M, and terminatin~
at a demarcation splice or breakout point at 818 W. 7
Street, 6th floor EQuinix.
TOTAL ANNUAL FEES: $40,392
I TOTAL NON-RECURRING FEES: I $8.7161
NOTE: This invoice reflects no federal, state, or local taxes. Taxes, as appropriate, shall
be added or invoiced separately.
7
IRU-01 EXHIBIT B (Cont.)
SUMMARY IRU
B. Future Pricing: not applicable
8
IRU-01 EXHIBIT C
FIBER SYSTEM
ONE-TIME CONNECT/DISCONNECT/REARRANGE CHARGES
I. General
This one-time service connection charges shall apply for the initial establishment
and cutover of a CUSTOMER's point-to-point cable system 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.
II. BuildinQ Service
The following one-time charges apply for the addition or deletion of building
service to/from a CUSTOMER's point-to-point or distribution Cable System and
for all building service connections. These are based on the number of building
entry fibers involved in the service. Connection is required both in-building and
in-street:
A.
Service Addition
Fiber Count
Charoe/Fiber
1. 0-6
2. 7-12
3. 13-Up
$400
$250
$150
B.
Service Deletion
Fiber Count
Charoe/Fiber
1. 0-6
2. 7-12
3. 13-Up
$200
$125
$ 75
III. Network Service
The CUSTOMER may choose to establish a network connection to the
Department's Cable System at a demarcation point in a
Department maintenance hole or other off-premises location
rather than within a building or on building grounds. Such network connection
9
may involve either a distribution system or a point-to-point system. The following
one-time charges apply to all network service connections and to all additions or
deletions of network service after initial implementation and acceptance
(including all final service terminations):
A.
Service Addition
Fiber Count
Charae/Fiber
1. 0-6
2. 7-12
3. 13-Up
$400
$250
$150
B.
Service Deletion
Fiber Count
Charae/Fiber
1. 0-6
2. 7-12
3. 13-Up
$200
$125
$ 75
IV. Other
For services such as adding a new ring, adding or changing a concentrator
location, rearranging multiple service connections, and rearranging a ring(s), the
CUSTOMER shall submit a request and service. description to the Department.
The Department shall return to the CUSTOMER a cost estimate for the
necessary work and materials within 30 days of receipt of the service request.
The Department's charge to the CUSTOMER shall be based on time and
materials and overhead involved plus a fifteen (15) percent surcharge.
V. Chanaes
Rates and charges are not subject to change during the five (5) year term of this
agreement.
10
IRU-01 EXHIBIT D
CABLE SYSTEM SPECIFICATIONS
I. General
The Department shall install and maintain the CUSTOMER SYSTEM within the
Department's cable system in accordance with the criteria and specifications that
follows:
II. Desiqn Criteria
The Department will endeavor to keep the number of splices in a span to a
minimum.
III. Ootical Fiber Specifications
The Department will meet the optical specifications as detailed below for all new
cable installed:
A. Single Node Fiber
Parameter
Maximum attenuation, 1310 nm
Maximum attenuation, 1550 nm
Cladding diameter
Cutoff Wavelength
Zero dispersion wavelength
Maximum dispersion
(1285-1330 nm)
B. Multimode Fiber
Parameter
Maximum attenuation 850 nm
Maximum attenuation 1300 nm
Cladding diameter
Core diameter
Minimum Modal Bandwidth (850 nm)
(1310 nm)
IV. Splice Loss
Specifications
Units
0.50
0.40
125 :t 3
1250:t 100
1310:t 12
3.5
dB/Km
dB/Km
J.!m
nm
nm
ps/(nm-km)
Specifications
Units
3.75
1.50
125 :t 3
62.5
160
500
dB/Km
dB/Km
J.!m
J.!m
MHz-km
MHz-km
Splice loss on Department cables will average less than or equal to 0.15 db for
all splices the Department makes under this Short Form IRU Agreement. The
0.15 db splice average will only apply to splices between cables of identical
11
physical and optical properties (i.e., core and cladding dimensions refractive
index and optical loss characteristics). All splices shall be measured using
bi-directional methods and averages.
V. 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 Short Form
IRU Agreement:
Single-mode fiber - 1310 nm. and 1550 nm
Multimode fiber - 850 nm and 1300 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 III above.
Lx = Installed length of cable in kilometers (km)
Nsp = Number of fiber splices in the cable system.
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.
The parameters above are guaranteed unless otherwise specified.
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 Department
will perform corrective maintenance pursuant to Exhibit E of this Short Form IRU
Agreement to attempt to restore the fiber to its original specified attenuation
values.
VI. Analoa Video
The Department will not warrant CUSTOMER analog video transmission within
the foregoing system parameters.
12
IRU-01 EXHIBIT E
MAINTENANCE AND REPAIR
Charoes for Time and Material Service
The Department 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 Workina Hours
7:00 a.m. to 3:30 p.m.,
Monday through Friday
(Except Departm~nt observed holiday)
Hourlv Rate
$ 110.00
Overtime Hours
6:00 a.m. to 7:00 a.m., and
3:30 p.m. to 12:00 midnight,
Monday through Friday
(Except Department observed holiday)
$ 135.00
Holidav Hours and Special Call Out:
Any time during a Department observed
holiday or any time during a Saturday or
Sunday, or any time between the hours
of 12:00 Midnight and 6:00 a.m.,
Monday through Friday.
$ 145.00
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.
Department Holidav Schedule:
New Year's Day
Martin Luther King, Jr. Day
Presidents' Day
Memorial Day (Observed)
Independence Day
Labor Day
Columbus Day (Observed)
Veterans Day (Observed)
Thanksgiving Day and Day After
Christmas Day
All rates, charges, and holiday schedule are subject to change.
13
APPENDIX B
TROUBLE-REPORTING ESCALATION PROCEDURE
The Department maintains its fiber optic network (cable System) in accordance with
industry standards. Should a problem or trouble with the service arise, please call the
following number to report trouble:
Department Telecommunications Trouble Number:
(213) 367-2225 (367-CABL) (24 hours)
This is the number of the Department's Telecommunications Voice Operations
Center (VOC). The VOC will escalate continuing troubles up through the
Telecommunications maintenance and management chain.
Upon clearance of the trouble, the VOC will notify the trouble-reporting location of
clearance and reason for trouble.
The Department shall within four (4) hours of notification of the trouble-reporting be
on site and begin investigating and correcting the reported condition. The Department, 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 Leased CUSTOMER
SYSTEM/Cable System Specifications of the Short Form IRU Agreement's Exhibit D.
If for some reason the TCF trouble number does not answer or respond, the
CUSTOMER may report the trouble to the Department Electric Trouble Number:
(800) 821-5278
(800) 821-5279
Electric Trouble will contact the TCF and report the trouble. The TCF shall
immediately contact the CUSTOMER at the CUSTOMER's number to verify the trouble
and obtain additional information as required.
APPENDIX C
INSURANCE ENDORSEMENT FORMS
The City of Vemon is self insured for the initial $2 million of every claim.
The City possesses 2 additional Excess Liability policies: The Insurance Co. of the
State of Pennsylvania, 70 Pine Street, NY, NY, 10270, policy number 42041938, is for
next $10 million.
Gulf Underwriters Insurance Co., 1 State Street Plaza, 9th Floor, NY,NY, 10004,
policy number GU5958826, provides an additional $10 million of coverage, for a total of
$22 million of insurance.
AGREEMENT NOT
RECEIVED -LIGHT &
POWER DOES NOT
HAVE A COPY ON FILE
Page 1 of 1
Juarez, Debbie
From: Juarez, Debbie
Sent: Monday, October 04, 2010 9:23 AM
To: Tolmasoff, Tania
Subject: RE: Resolution No. 8710 -LADWP Agreement No. FO-344-01/2005 Optical Fiber Use Lease
Agreement
Thanks for checking. I guess we never received a fully executed document.
~e6oraFi yuarez
1~cords ~YlanagementAssT:rtant
City of Vernon -City C~er(Z's Office
4305 Santa ~Fe Avenue
~erno'n, CA 90058
(323 583-8811
From: Tolmasoff, Tania
Sent: Monday, October 04, 2010 9:18 AM
To: Juarez, Debbie
Subject: FW: Resolution No. 8710 -LADWP Agreemeht No. FO-344-01/2005 Optical Fiber Use Lease Agreement
I did not, is the one you sent me fully executed?
From: Juarez, Debbie
Sent: Thursday, September 30, 2010.11:32 AM
To: Tolmasoff, Tania
Subject: FW: Resolution No. 8710 -LADWP Agreement No. FO-344-01/2005 Optical Fiber Use Lease Agreement
Hi Tania. Please let me know if you have a fully executed agreement in your files. Thank you.
1~e6oraFi Suarez
12,ecords 91~LanagementAssistant
City of Vernon -City CCerk's Office
4305 Santa rFeAvenue
Vernon, CA 90058
(323 583-8811
From: Juarez, Debbie
Sent: Tuesday, September 14, 2010 10:52 AM
To: Mermis, Michelle
Subject: Resolution No. 8710 -LADWP Agreement No. FO-344-01/2005 Optical Fiber Use Lease Agreement
Hi Michelle. When you get a chance, please cheek your files to see if you have the fully executed agreement. If
you do, please send. it to me. Thank you.
10/7/2010
CITY ADMINISTRATOR/CITY CLERK'S OFFICE
INTER-DEPARTMENT MEMORANDUM
R:E~~SED`
DATE: .April 18, -2005.
TO: Jorge Somoano, Engineering Operations Manager
FRO Nelly Giron, Deputy City Clerk
RE: Agreement No. FO-344-01f2005 and FO-345-0,1/2005
Optical Fiber Use Lease Agreement
Transmitted herewith are two originals of each of ,the above-referenced
agreements fob you to submit to the Department of Water and
Power of the City of. Los Angele's for their execution. Please ensure
that a fully executed agreement is submitted to this office.
Thank you.
cc: ~~em~n~t~~ File Na._ 05-~0~4
Resolution No. 8710