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Resolution No. 8935 . 1 2 3 4 5 6 RESOLUTION NO. 8935 A RESOLUTION OF THE CITY COUNCIL'OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SHORT FORM IRU-02.4 INDEFEASIBLE RIGHT OF USE AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND CLOUGHERTY PACKING COMPANY FOR FIBER OPTIC PROGRAM 7 WHEREAS, the City of Vernon (~City") has developed a pilot 8 program to provide businesses with building-to-building fiber-optic 9 connections; and 10 WHEREAS, on February 18, 2004, the City Council of the City 11 of Vernon adopted Resolution No. 8385 approving an Agreement No. 02 12 Optical Fiber Use Agreement (~Agreement No.2") and Short Form IRU- 13 02.1 Indefeasible Right of Use Agreement with Clougherty Packing 14 Company (~Clougherty") for the use of fiber optic laterals to connect 15 two buildings of Clougherty with strands of the City's dark fiber; and 16 WHEREAS, on September 1, 2004, the City Council of the City 17 of Vernon adopted Resolution No. 8527 approving a Short Form IRU-02.2 18 Indefeasible Right of Use Agreement with Clougherty for additional 19 building-to-building fiber optic connection to be used for computer 20 networking; and 21 WHEREAS, on November 2, 2005, the City Council of the City 22 of Vernon adopted Resolution No. 8881 approving a Short Form IRU-02.3 23 Indefeasible Right of Use Agreement with Clougherty for additional 24 building fiber optic connection for a fourth building to transport 25 voice, data and video using their own equipment; and 26 WHEREAS, Clougherty has requested addit~onal building-to- 27 building fiber optic connection for a fourth building to transport 28 voice, data and video using their own equipment; and 1 WHEREAS, Agreement No. 02 provides for the use of 2 chronological numeric designator Short Form Indefeasible Right of Use 3 Agreements to identify additional specific optical fiber strands and 4 facilities to be provided to Clougherty and the associated fees, terms 5 and conditions under which such additional optical fiber strands and 6 facilities will be provided; and 7 WHEREAS, Agreement No. 02 also provides a mechanism whereby 8 all executed Short Form Indefeasible Right of Use Agreements are deemed 9 a part of Agreement No. 02 and attached as Exhibit A in chronological 10 order; and 11 WHEREAS, the Fiber Optic and Gas Systems Manager has 12 recommended that Short Form IRU-02.4 Indefeasible Right of Use 13 Agreement with Clougherty be approved and executed. 14 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE 15 CITY OF VERNON AS FOLLOWS: 16 SECTION 1: The City Council of the City of Vernon hereby 17 finds and determines that the recitals contained hereinabove are true 18 and correct. 19 SECTION 2: The City Council of the City of Vernon hereby 20 approves Short Form IRU-02.4 Indefeasible Right of Use Agreement with 21 Clougherty Packing Company, in substantially the form attached hereto 22 as Exhibit A and incorporated by reference. 23 SECTION 3: The City Council of the City of Vernon hereby 24 authorizes the Mayor to execute said Agreement for, and on behalf of, 25 the City of Vernon and the Acting City Clerk is hereby authorized to 26 attest thereto. 27 SECTION 4: The City Council of the City of Vernon hereby 28 directs the Acting City Clerk, or his designee, to send one fully ~ 2 - 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 executed Agreement to: 2 3 4 5 Clougherty Packing Company Attn. James B. Stephenson, Vice President, Finance 3049 Vernon Avenue Vernon, CA 90058 SECTION 5: The City Council of the City of Vernon hereby 6 instructs the Acting City Clerk to file in chronological order the 7 original Short Form IRU-02.4 Indefeasible Right of Use Agreement as 8 Exhibit A to Agreement No. 02 Optical Fiber Use Agreement. 9 SECTION 6: The Acting City Clerk of the City of Vernon 10 shall certify to the passage of this resolution, and thereupon and 11 thereafter the same shall be in full force and effect. 12 APPROVED AND ADOPTED this 21st day of December, 2005. ~' .~ .~. . -LEONIS c. ~~or ATTEST: ;f~---- JR. , - 3 - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 STATE OF CALIFORNIA 2 ss COUNTY OF LOS ANGELES 3 4 I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of 5 Vernon, do hereby certify that the foregoing Resolution, being 6 Resolution No. 8935, was duly adopted by the City Council of the City 7 of Vernon at a regular meeting of the City Council duly held on 8 Wednesday, December 21, 2005, and thereafter was duly signed by the 9 Mayor of the City of Vernon. ~ r BRUCE V. MALKENHORST, JR. Acting City Clerk (SEAL) - 4 - EXHIBIT A , SHORT FORM IRU-02.4 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-2.4 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-02.4 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 21 st day of December, 2005, 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 February 26. 2004. 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-02.4 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: Four fiber strands identified as strand numbers 37, 38, 39 and 40 of the CITY Cable System terminating in CUSTOMER main facility (Building A) and intercepting City backbone Cable System at Splice Enclosure No.5, and continue on strand numbers 37, 38, 39, 40 and terminate in the Customer facility (Building E located at 5215 S. Boyle Avenue, Vernon California) via a new City furnished Splice Enclosure No. 37 and continue on strand numbers 1, 2, 3,and 4 dedicated for CUSTOMER exclusive use, as identified in IRU-02.4-Schedule-E; and These individual CITY Cable System components collectively shall be the CUSTOMER System for this IRU-02.4 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 demarcat,ion 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-02.4 Agreement. The CITY shall use reasonable efforts to comply with the project schedule that is mutually agreed by both Parties. 1 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-02.4-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-02.4 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; 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 Where applicable, place one inner-duct, which will house fiber optic cable extension segments, inside the CUSTOMER furnished conduit, 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 a suitable 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-02.4 Agreement. 2 , 6. An invoice setting forth a summary of the transactions under the IRU-02.4 AgreeIbent is attached hereto as IRU-02.4-Schedule-B. The payments and charges shalt 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 charge of $4.500.00 which payment is due upon CUSTOMER acceptance. 6.3 One-time connection charge of CUSTOMER acceptance. (waived) which payment is due upon 6.4 CUSTOMER shall pay quarterly IRU fee payments of $3,840.00 based on a monthly base rate of $1 ,280.00 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. The charges and application rules are identified in IRU-02.4-Schedule -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, 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-02.4-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 3 updated. The CITY'S personnel will be on site no later than four (4) hO\il'5 11M notification by CUSTOMER of an impairment or outage materially affecdaa 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-02.4-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. 8. 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-02.4 Agreement, including IRU-02.4-Schedule-A, IRU-02.4-Schedu1e-B, IRU- 02.4-Schedule-C, IRU-02.4-Schedule-D, IRU-02.4-Schedule-E, which are attached are hereby incorporated into the Agreement, dated December 21, 2005 and all of which constitutes the entire agreement between the Parties with respect to the subject matter. This IRU-02.4 Agreement cannot be modified except in writing signed by both Parties. III 4 , IN WITNESS HEREOF the Parties have executed and delivered this IRU-02.4 Agreement effective the day and year first above written: CITY OF VERNON By: LEONIS C. MALBURG, Mayor ATTEST: BRUCE MALKENHORST, JR., City Clerk APPROVED AS TO FORM: ERIC T. FRESCH, City Attorney CUSTOMER By: Print Name: Title: By: Print Name: Title: 5 l IRU-02.3-SCHEDULE A . IRU-02.4-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 Hourly Rate 7:00 a.m. to 3:30 p.m., Monday through Friday (except for CITY observed holidays) $ 85.00 Overtime Hours Hourly Rate 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) $ 105.00 Holiday Hours and Special Call out Hourly Rate 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 $ 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 Columbus Day Memorial Day Thanksgiving Day and Day After Christmas Day Lincoln's Birthday All rate, charges, and holiday schedule are subject to change. A-I , IRU-02.3-SCHEDULE B IRU-02.4-Schedute-B SUMMARY IRU-02.4 Agreement INVOICE The summary IRU-02.4 Agreement Invoice provides a summary of all transactions of this IRU-02.4 Agreement. 8.1 Transactions Invoice: ITEM Description IRU Fees 1 One-time Advanced Engineering Fee Waived 2 One-time Construction and Installation Fee $4,500.00 3 One time Connection Fee Waived 4 Quarterly IRU-02.4 Base Charges $ 3,840.00 (February 2006 through April 2006) ($1,280.00/month x 3 months = $3,840.00) Total IRU-02.4 Agreement Fees (Item 2 and 4) $ 8,340.00 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. B-1 IRU-02.3-SCHEDULE C IRU-02.4-Schedule-C DARK FillER PRICING 1.0 APPLICABILITY: This rate schedule applies to various customers receiving dark fiber services from the City of Vernon. 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 annual usage fees in return for the privilege of using the Cable System. 2.0 TERRITORY: Within the limits of the City of Vernon. 3.0 FEES: 3.1 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. Advances Engineering Fee Special Conditions $ 500.00 By Estimate 3.2 Dark Fiber Price Range: The minimum rate is $ 180.00 per fiber mile per month The maximum rate is $ 540.00 per fiber mile per month Under no circumstances shall monthly recurring IRU charges for a complete primary path point-to-point circuit be less than $560.00, and no less than $380.00 for a complete protect path point-to-point circuit. 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. At each demarcation point, there shall be two ports available each for the primary and protect paths for the CUSTOMER to use. The following discounts apply: C - 1 IRU-02.4-Schedule-C (Continued) a) Fiber quantity discount: The discount for quantities of fiber leased on a specific Route ranges from $0 to $360.00 per fiber mile per month. For the purpose of this IRU-02.4 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-02.4-Schedu1e-E. Route miles shall be the actual number of fiber strand miles connecting CUSTOMER connection points, identified as CUSTOMER System. b) Route length discount: The Route length discount ranges from $0 to $360.00 per fiber mile per month. c) Ring topology discount: The ring topology discount ranges from $0 to $450.00 per fiber mile per month. d) Length of Term discount: The discount for contracting for terms of greater than one year ranges from $0 to $360.00 per fiber mile per month. 3.3 Dark Fiber Extension Connections: If the Cable System extension requested by the customer 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 request that the City install new conduit and cable at the customer's sole expense. In either case, the customer shall pay a monthly recurring charges of $50.00 per fiber per building entry. A complete point-to-point connection consists of four fiber entries per circuit. 4.0 Dark Fiber Pricing Methodology: The City will lease dark fiber to all interested Parties who are willing to agree to the terms and conditions associated with the City Council by an approved Agreement. Access and pricing will be offered in a competitively neutral, non-discriminatory manner. Actual prices paid by the customer will be established on a case-by-case basis in accordance with a consistent set of pricing principles that will be used to determine the pricing for all customers. 5.0 One-Time CoonectionlDisconnectionlRearrangement Fees 5.1. General This one-time service connection charges 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 C-2 IRU-02.4-Schedule-C (Continued) added or deleted, or rearranged subsequent to the cutover date and. shall pay for all connection services. 5.2 Building Service The following one-time charges apply for the addition or deletion of building service to/from a CUSTOMER 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: I Fiber Count Each I Charge/Fiber $400 B. Service Deletion: I Fiber Count Each I Charge/Fiber $200 5.3 Other For services such as adding a new ring, changing a segment into a primary path/protect path (ring), adding or changing a demarcation point, rearranging multiple service connections, and rearranging a ring(s), the CUSTOMER shall submit a request and service description to the CITY. The CITY shall return to the CUSTOMER a cost estimate for the necessary work' and materials within 14 days of receipt of the service request. The CITY'S charge to the CUSTOMER shall be based on time and materials and a fifteen (15) percent overhead charge. c- 3 IRU-02.3-SCHEDULE D IRU-02.4-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) 0.5 0.4 125 +/- 3 8.3 1250 +/- 100 1310 +/- 12 3.5 dB/Km dB/Km um um nm nm ps/(nm-km) 4. Splice 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-02.4 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-directiona1 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-02.4 Agreement: D-l IRU-02.4-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 asp 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-02.4-Schedule - D of this original specified attenuation values. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 , . IRU-02.3-SCHEDULE E " . . UI N - l/I - !II Ii - - Ii Ii m !" D N !" N -< w 1- r ... ~ ... Z I: ... i i ocr. I ~ I I 0 tzj (I)~ ;; ,,<0 s (I)" d -1< - I 1'1'" OJ ~~ - 0 0 t-3 !" z tzj ~ · o iii ~ !! ~ .. ~ ... ..II ~ .. .. ., ., ,-< .NO-.3m~ ..O:a:!~:ill. ... ~ II Z ., CI OZ. Gl III !" III III .. ~a~!!~~~~< 1l..IIZ~:u=og ...DGI~Z;IllZ ~~~~~~~H ~3~~~~H~ ZC:O!:OPll'1l1if 1'1 . Z 2 0 PI ~ =~~~~~~ D z.O::-S'U ~ ~: ~ ~. ~ ~ ~ II DDlDaGJOD 3 ~~~~~Ei: D :aoc"rzl Z PIce-gill ~ ~ ~ ~ ~ ~ i ..r- Ii iF G ... z c 51 Z II ~ Q Ii ~ II 1I:a !':: ~ C !! ;II i: Ii IC N C t !' ~ ~ Z o Z o t'tj ~. - n E= Z tI;j ~ o ~ ~ a:: ~ . , . .. 1. . , . ~;,... -Y-:.~',* '~-,~ SUPPORTING DOCUMENTS ~- ~, SHORT FORM IRU-02.4 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-2.4 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-02.4 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 21 st day of December, 2005, 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 V ernon Avenue, Vernon, California 90058, and upon execution shall be a part of the CUSTOMER Optical Fiber Use Agreement ("Agreement") dated February 26. 2004. 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-02.4 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: Four fiber strands identified as strand numbers 37, 38, 39 and 40 ofthe CITY Cable System terminating in CUSTOMER main facility (Building A) and intercepting City backbone Cable System at Splice Enclosure No.5, and continue on strand numbers 37, 38, 39, 40 and terminate in the Customer facility (Building E located at 5215 S. Boyle Avenue, Vernon California) via a new City furnished Splice Enclosure No. 37 and continue on strand numbers 1, 2, 3 and 4 dedicated for CUSTOMER exclusive use, as identified in IRU-02.4-Schedul~E; and These individual CITY Cable System components collectively shall be the CUSTOMER System for this IRU-02.4 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-02.4 Agreement. The CITY shall use reasonable efforts to comply with the project schedule that is mutually agreed by both Parties. 1 ~ I! 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-02.4-Schedule-D and operating effectively, and shall be valid for the remainder ofthe 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-02.4 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; 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 Where applicable, place one inner-duct, which will house fiber optic cable extension segments, inside the CUSTOMER furnished conduit, 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 a suitable 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-02.4 Agreement. 2 ~ 6. An invoice setting forth a summary of the transactions under the IRU-02.4 Agreement is attached hereto as IRU-02.4-Schedule-B. 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 charge of $4.500.00 which payment is due upon CUSTOMER acceptance. 6.3 One-time connection charge of CUSTOMER acceptance. (waived) which payment is due upon 6.4 CUSTOMER shall pay quarterly IRU fee payments of $3,840.00 based on a monthly base rate of $1 ,280.00 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. The charges and application rules are identified in IRU-02.4-Schedule -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, 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-02.4-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 3 d; 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-02.4-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. ' 8. 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-02.4 Agreement, including IRU-02.4-Schedule-A, IRU-02.4-Schedule-B, IRU- 02.4-Schedule-C, IRU-02.4-Schedule-D, IRU-02.4-Schedule-E, which are attached are hereby incorporated into the Agreement, dated December 21, 2005 and all of which constitutes the entire agreement between the Parties with respect to the subject matter. This IRU-02.4 Agreement cannot be modified except in writing signed by both Parties. //1 4 ~ IN WITNESS HEREOF the Parties have executed and delivered this IRU-02.4 Agreement effective the day and year first above written: CITY OF VERNON ~~;;y' B~ -::) lG?IJ&W&XJ de ~ Titi!S /J)fiAJI H~e:. Title: By: Print Name: Title: 5 ~.,~ { . \ IRU-02.3-SCHEDULE A ~ - IRU-02.4-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 Hourly Rate 7:00 a.m. to 3:30 p.m., Monday through Friday (except for CITY observed holidays) $ 85.00 Overtime Hours Hourly Rate 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) $ 105.00 Holiday Hours and Special Call out Hourly Rate 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 $ 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 Columbus Day Memorial Day Thanksgiving Day and Day After Christmas Day Lincoln's Birthday All rate, charges, and holiday schedule are subject to change. A-I ~ IRU-02.3-SCHEDULE B ~ IRU-02.4-Schedule- B SUMMARY IRU-02.4 Agreement INVOICE The summary IRU-02.4 Agreement Invoice provides a summary of all transactions of this IRU-02.4 Agreement. RI Transactions Invoice: ITEM Description IRU Fees 1 One-time Advanced Engineering Fee Waived 2 One-time Construction and Installation Fee $4,500.00 3 One time Connection Fee Waived 4 Quarterly IRU-02.4 Base Charges (February 2006 through April 2006) ($1,280.00/month x 3 months::: $3,840.00) $ 3,840.00 Total IRU-02.4 Agreement Fees (Item 2 and 4) $ 8,340.00 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. B-1 ~ IRU-02.3-SCHEDULE C ~ IRU-02.4-Schedule-C DARK FIBER PRICING ,1.0 APPLICABILITY: This rate schedule applies to various customers receiving dark fiber services from the City of Vernon. 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 annual usage fees in return for the privilege of using the Cable System. 2.0 TERRITORY: Within the limits of the City of Vernon. 3.0 FEES: 3.1 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. Advances Engineering Fee Special Conditions $ 500.00 By Estimate 3.2 Dark Fiber Price Range: The minimum rate is $ 180.00 per fiber mile per month The maximum rate, is $ 540.00 per fiber mile per month Under no circumstances shall monthly recurring IRU charges for a complete primary path point-to-point circuit be less than $560.00, and no less than $380.00 for a complete protect path point-to-point circuit. 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. At each demarcation point, there shall be two ports available each for the primary and protect paths for the CUSTOMER to use. The following discounts apply: C - 1 ~ IRU-02.4-Schedule-C (Continued) a) Fiber quantity discount: The discount for quantities of fiber leased on a specific Route ranges from $0 to $360.00 per fiber mile per month. For the purpose of this IRU-02.4 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-02.4-Schedule-E. Route miles shall be the actual number of fiber strand miles connecting CUSTOMER connection points, identified as CUSTOMER System. b) Route length discount: The Route length discount ranges from $0 to $360.00 per fiber mile per month. c) Ring topology discount: The ring topology discount ranges from $0 to $450.00 per fiber mile per month. d) Length of Term discount: The discount for contracting for terms of greater than one year ranges from $0 to $360.00 per fiber mile per month. 3.3 Dark Fiber Extension Connections: If the Cable System extension requested by the customer 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 request that the City install new conduit and cable at the customer's sole expense. In either case, the customer shall pay a monthly recurring charges of $50.00 per fiber per building entry. A complete point-to-point connection consists of four fiber entries per circuit. 4.0 Dark Fiber Pricing Methodology: The City will lease dark fiber to all interested Parties who are willing to agree to the terms and conditions associated with the City Council by an approved Agreement. Access and pricing will be offered in a competitively neutral, non-discriminatory manner. Actual prices paid by the customer will be established on a case-by-case basis in accordance with a consistent set of pricing principles that will be used to determine the pricing for all customers. 5.0 One-Time ConnectionlDisconnectionlRearrangement Fees 5.1. General This one-time service connection charges 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 C-2 ,~ IRU-02.4-Schedule-C (Continued) added or deleted, or rearranged subsequent to the cutover date and shall pay for all connection services. 5.2 Building Service The following one-time charges apply for the addition or deletion of building service to/from a CUSTOMER 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: I Fiber Count Each I Charge/Fiber $400 B. Service Deletion: I Charge/Fiber $200 I Fiber Count Each 5.3 Other F or services such as adding a new ring, changing a segment into a primary path/protect path (ring), adding or changing a demarcation point, rearranging multiple service connections, and rearranging a ring(s), the CUSTOMER shall submit a request and service description to the CITY. The CITY shall return to the CUSTOMER a cost estimate for the necessary work and materials within 14 days of receipt of the service request. The CITY'S charge to the CUSTOMER shall be based on time and materials and a fifteen (15) percent overhead charge. C-3 r$ IRU-02.3-SCHEDULE D ~ IRU-02.4-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) 0.5 0.4 125 +/- 3 8.3 1250 +/- 100 1310 +/- 12 3.5 dBIKm dBlKm um urn nm nm ps/(nm-km) 4. Splice 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-02.4 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-02.4 Agreement: D-l ~ IRU-02.4-Schedule-D (Continued) Single Mode Fiber 1310nmand 1550nm 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 (Ian) 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-02.4-Schedule - D of this original specified attenuation values. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 in IRU-02.3-SCHEDULE E ~ · o iii ~ II ::! PI - II ill ~ PI ) 0 ill r :l: II oj Z ~ o PI II CD: Z 'I 0 D ~ Z : E PI GI !: II ill ::! 'II o PI !: C II II Z PI D PI oj Z ill 0 ~ r Z 0 II II - C ::! ill o PI Z 'II o Z oj II PI tJl ~. ~ = ~ ~ " oil oj II l> ~ ~ l> J: : = Z II l" ~ 0 . GI m < >> oj ~ fI 0 PI = a .. Z ~ ~ -I UI ~ GI MO' il z ~~z~=~ I~~07~ g ~ ~. : 0 ~. PI ' C D "D III ~~~:~~ · 0 - II :I '1J fII .m ~ zg 0 ~ C . 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