Resolution No. 93040
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 9304
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION
OF AN AGREEMENT NO. 05 OPTICAL FIBER USE
AGREEMENT AND SHORT FORM IRU-05.1 INDEFEASIBLE
RIGHT OF USE AGREEMENTS BY AND BETWEEN THE CITY
OF VERNON AND HUXTABLE'S KITCHEN RELATING TO THE
CITY'S FIBER OPTIC PROGRAM
WHEREAS, the City of Vernon (`City") has installed a fiber-
optic cable network around the perimeter of the City and has studied
the feasibility of providing excess unactiviated or dark fibers to
businesses in the City to enable such businesses to have access to
voice, data and/or video services; and
WHEREAS, the City has determined that taking advantage of
the existing fiber-optic network provides businesses in the City with
access to enhanced communication services; and
WHEREAS, the City has developed a program to provide
businesses with building -to -building fiber-optic connections; and
WHEREAS, the City and Huxtable's Kitchen ("'Huxtable's") have
Inegotiated agreements to provide Huxtable's with the use of fiber optic
Ilaterals to connect two buildings of Huxtable's, 2100 E. 49th Street and
12080 E. 49th Street, with strands of the City's dark fiber; and
WHEREAS, Huxtable's has requested the interconnection of two
Ibuildings for building -to -building fiber-optic connection services for
fits computer and telephone network system; and
WHEREAS, the Director of Light & Power has recommended that
Ian Optical Fiber Use Agreement No. 5 and Short Form IRU-05.1
Indefeasible Right of Use Agreement be approved with Huxtable's.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
1 CITY OF VERNON AS FOLLOWS:
2 SECTION 1: The City Council of the City of Vernon hereby
3 finds and determines that the recitals contained hereinabove are true
4 and correct.
5 SECTION 2: The City Council of the City of Vernon hereby
6 approves the Optical Fiber Use Agreement No. 5 and the Short Form IRU-
7 05.1 Indefeasible Right of Use Agreement with Huxtable's, in
8 substantially the same form as the copies which are attached hereto as
9 Exhibit A and incorporated by reference.
10 SECTION 3: The City Council of the City of Vernon hereby
11 authorizes the Mayor or Mayor Pro-Tem to execute the Agreements for,
12 and on behalf of, the City of Vernon and the City Clerk is hereby
13 authorized to attest thereto.
14 SECTION 4: The City Council of the City of Vernon hereby
15 authorizes the City Administrator, or his designee, to make whatever
16 nonsubstantive, administrative and/or text changes, upon advice of
17 counsel, to the Agreements.
18 SECTION 5: The City Council of the City of Vernon hereby
19 directs the City Clerk, or his designee, to send one of each of the
20 two fully executed Agreements to:
21 Huxtable's Kitchen
Attn. Luis P. Santos, Controller
22 2100 E. 49th Street
23 Vernon, CA 90058
24
25
26
27
28
_ 2 _
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SECTION 6: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 7th day of May, 2007.
ATTEST:
t
MA UELA GIRON, Ci y Clerk
HILARIO GONZALES,• ' •
- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby
certify that the foregoing Resolution, being Resolution No. 9304, was
duly adopted by the City Council of the City of Vernon at a regular
meeting of the City Council duly held on Monday, May 7, 2007, and
thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of
Vernon.
((SEAL)
NUELA GI N, City Clerk
- 4 -
EXHIBIT
W
AGREEMENT NO.05
OPTICAL FIBER USE AGREEMENT
By and Between
THE CITY OF VERNON
and
HUXTABLE' S KITCHEN, INC.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
TABLE OF CONTENTS
Page
DEFINITIONS........................................................................................................................ l
TERM.....................................................................................................................................2
TAXES....................................................................................................................................2
MAINTENANCE AND CREDIT ALLOWANCE................................................................3
FREEDOMOF ACTION....................................................................................................4
COMPLIANCEWITH LAWS..............................................................................................4
RELOCATION OF THE FACILITIES..................................................................................4
EVENTS OF TERMINATION AND EFFECT OF TERMINATION..................................4
ADMINISTRATION OF THIS AGREEMENT....................................................................8
INDEMNIFICATION AND LIMITATION OF LIABILITY...............................................8
DEFAULT............................................................................................................................10
FORCEMAJEURE..............................................................................................................10
ASSIGNMENT..................................................................................................................... I I
WAIVER.............................................................................................................................. I I
RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY..........................................I I
NO THIRD -PARTY BENEFICIARIES . ............................................................................. I I
NOTICES..............................................................................................................................12
GOVERNING LAW AND FORUM SELECTION.............................................................12
NOWARRANTIES.............................................................................................................12
USE OF THE CUSTOMER SYSTEM................................................................................13
PLURALS.............................................................................................................................13
PARTS OF AGREEMENT..................................................................................................13
COUNTERPARTS...............................................................................................................13
ACCEPTANCETESTING...................................................................................................13
BILLING AND PAYMENT................................................................................................14
TITLE...................................................................................................................................14
ENTIRE AGREEMENT.......................................................................................................14
SURVIVAL OF TERMS......................................................................................................15
DISPUTERESOLUTION....................................................................................................15
SEVERABILITY................................................................................................................17
EXHIBIT A: Short Form IRU Agreement
EXHIBIT B: Trouble Reporting Procedure
(i)
i . 1
AGREEMENT
OPTICAL FIBER USE AGREEMENT
THIS OPTICAL FIBER USE AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into and executed in duplicate originals, either copy of
which may be considered and used as the original hereof for all purposes, as of the
day of May, 2007, between the THE CITY OF VERNON (hereinafter
referred to as the "CITY"), having its offices at 4305 Santa Fe Avenue, Vernon, '
California 90058, and HUXTABLE'S KTICHEN, INC. (hereinafter referred to as
"CUSTOMER"), a corporation, having an office at 2100 E. 49TH Street, Vernon,
California 90058, and which are sometimes referred to individually as "Party" and
collectively as "Parties."
RECITALS
WHEREAS, the CITY has an existing optical fiber cable system or "Cable
System" (as hereinafter defined) throughout the City of Vernon, State of California; and
WHEREAS, the CITY has excess unactivated or dark fibers in the Cable System
and is willing, from time to time, to provide such dark fibers to CUSTOMER and to grant
CUSTOMER an Indefeasible Right of Use or IRU (as hereinafter defined) in and to such
dark fibers for the purpose of providing voice, data, or video services; and
WHEREAS, in connection with the grant to CUSTOMER of an IRU in and to
such dark fibers, the CITY is willing to allow CUSTOMER to use certain other specified
CITY -owned property, including, but not limited to, the CITY's Cable System; and
WHEREAS, the CITY will provide fibers in the Cable System to CUSTOMER in
connection with undertaking one or more projects; and
WHEREAS, the Parties have agreed to enter into this Agreement which embodies
the mutual covenants and agreements for the longterm relationship between the Parties
hereto and for each such project; and
WHEREAS, the Parties have agreed to enter into separate Short Form IRU
Agreement(s) as hereinafter defined.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth in this Agreement, the Parties hereto do hereby agree as follows:
DEFINITIONS.
1.1 The following terms, whether in the singular or in the plural, when in this
Agreement and initially capitalized, shall have the meaning specified below:
a. Short Form IRU Agreement: Any number of short form
agreements between the CITY and CUSTOMER which identify the specific optical fiber
strands and facilities to be provided to CUSTOMER and which set forth the associated
fees, terms and conditions for CUSTOMER'S use of such optical fiber strands and
facilities. When executed, each Short Form IRU Agreement shall be attached hereto as
Exhibit "A" and made a part hereof
b. CUSTOMERSystem: The optical fiber strands, innerduct,
conduit, building entrance facilities and associated appurtenances, to be provided to
CUSTOMER under the terms of this Agreement and the applicable Short Form IRU
Agreement(s) and the associated rights to access such fiber strands at demarcation points
as specified in the applicable Short Form IRU Agreement(s).
C. Cable System: All hardware, including but not limited to, fiber
cable, poles, pole attached hardware, conduit, innerduct, enclosures, building and
facilities owned and operated by the CITY for its use.
2. TERM.
2.1 Unless terminated sooner in accordance with the terms and conditions of
this Agreement, the duration of this Agreement is five (5) years (hereinafter referred to
as the "Term"), commencing on the date of this Agreement. The duration of each Short
Form IRU Agreement, and any renewal or extension thereof, shall be set forth in the
applicable Short Form IRU Agreement for each portion of the CUSTOMER System;
provided, however, that in no event shall the term of a Short Form IRU Agreement
extend beyond the termination of this Agreement. Each Short Form IRU Agreement
shall automatically, and without further notice or action required, terminate on the
termination of this Agreement. If CUSTOMER has entered into more than one Short
Form IRU Agreements, and despite the termination of one or more, others remain in
effect, and this Agreement remains in effect, then the Short Form IRU Agreements then
in effect shall remain in effect until the earlier of their termination date or the termination
of this Agreement.
3. TAXES.
3.1 The CITY shall be responsible for all taxes and fees based on the physical
location of the Cable System and the construction thereof in, on, across, along or through
public or private roads, highways or rights -of -way.
3.2 The CUSTOMER shall pay all local, state, and federal taxes, and
franchise, license and permit fees (hereinafter collectively referred to as "Taxes") levied
upon the sale, installation, use, or provision of the CUSTOMER System and any
equipment provided hereunder, as well as any Taxes assessed against it for the conduct of
its business, during the Term of this Agreement.
2
4. MAINTENANCE AND CREDIT ALLOWANCE.
4.1 All scheduled and emergency maintenance to and repair of the Cable
System, and all facilities through which the Cable System passes, shall be performed by
or under the direction of the CITY with reasonable notice to CUSTOMER at CITY's sole
cost, except as otherwise provided below in connection with services provided at
CUSTOMER's request.
Except as otherwise provided in the Short Form IRU Agreement, CUSTOMER is
prohibited from performing any maintenance or repair on the Cable System or
CUSTOMER System. CUSTOMER shall have the right to have an employee or
representative available to assist the CITY in any maintenance or repair of the
CUSTOMER System. The CITY shall maintain the CUSTOMER System substantially
in accordance with the technical specifications (hereinafter referred to as the
"Specifications") attached to and made a part of the Short Form IRU Agreement as its
Schedule-D.
a. Emergency Maintenance: The CITY shall use commercially
reasonable efforts to respond to any unscheduled failure, interruption or impairment in
the operation of the CUSTOMER System within four (4) hours, measured from the time
the CITY receives a report of any such unscheduled failure, interruption or impairment
until the time a qualified technician arrives at the site of the reported problem. The CITY
shall use its commercially reasonable efforts to perform emergency maintenance and
repair to correct any unscheduled failure, interruption or impairment in the operation of
the CUSTOMER System when reported by CUSTOMER in accordance with the
procedures set forth in Exhibit `B" attached hereto and made a part hereof.
b. Scheduled Maintenance:
CITY's Option. The CITY from time to time may schedule and perform periodic
maintenance to protect the integrity of the Cable System or CUSTOMER System to
maintain dark fibers within Specification at CITY's sole cost. If routine, scheduled
maintenance of the Cable System or CUSTOMER System is expected to result in any
interruption of the CUSTOMER System, the CITY shall so notify CUSTOMER in
writing at least three (3) business days prior to commencing such routine maintenance.
The CITY shall schedule major maintenance of the Cable System at a time selected by
the CITY to limit adverse user impacts.
CUSTOMER's Request. The CITY will perform changes or modifications to the
Cable System or CUSTOMER System at CUSTOMER'S request. CUSTOMER may
request Scheduled Maintenance by delivering to the CITY a statement of work detailing
the service CUSTOMER desires to have performed, including the time schedule for such
services. Upon receipt of such statement of work, the CITY will provide an estimate of
the price and timing of such Scheduled Maintenance. Following CUSTOMER's
acceptance of such estimate and time schedule, the CITY will schedule and perform such
Scheduled Maintenance. The CITY will perform CUSTOMER requested Scheduled
Maintenance on a time -and -materials basis at the standard CITY rates in effect at the time
services are performed. CITY rates in effect will be those identified in Schedule -A of the
most recent Short Form IRU Agreement. Such rates are subject to change at a rate not to
exceed the cumulative CPI rates of previous years since the last rate change.
4.2 Credit Allowance. In the event of Total Service Interruption as described
in the Short Form IRU Agreement, CUSTOMER shall be entitled to the Credit
Allowance described in the applicable Short Form IRU Agreement.
FREEDOM OF ACTION.
Nothing in this Agreement shall restrict the CITY's right to conduct its business
and it may, without limitation, construct and install additional optical fiber cable systems
for any purpose whatsoever, and it may enter into other Optical Fiber Use Agreements
with any other party on any other terms acceptable to the CITY in its sole and absolute
discretion.
6. COMPLIANCE WITH LAWS.
CUSTOMER, at its sole cost, shall comply with all applicable federal, state, and
local laws, ordinances and regulations pertaining to this Agreement, the use of the Cable
System, and the use of the CUSTOMER System. CUSTOMER acknowledges that any
products, software and technical information provided under this Agreement are subject
to U.S. export laws and regulations and any use or transfer of such products, software and
technical information must be authorized under those regulations. CUSTOMER agrees
that it will not use, distribute, transfer or transmit the products, software or technical
information, except in compliance with U.S. export regulations.
7. RELOCATION OF THE FACILITIES.
CUSTOMER recognizes that, from time to time, the CITYmay elect or be
required to relocate all or a portion of the Cable System or the CUSTOMER System, or
both. The CITY shall be solely responsible for all costs incurred in relocating the Cable
System and the CUSTOMER System (unless the relocation is accompanied by additions
or other work to benefit CUSTOMER and for which CUSTOMER agrees in writing to
pay). The CITY shall use its commercially reasonable efforts to do so in a manner that is
intended to minimize interruption in CUSTOMER'S use thereof; provided, however, that
the CITY shall have the sole right to determine the extent and timing of and the methods
to be used for such relocation. Unless the circumstances make such notice impractical,
the CITY shall give CUSTOMER at least thirty (30) days prior written notice of any
scheduled relocation plans, and as much notice as possible of any unscheduled relocation.
EVENTS OF TERMINATION AND EFFECT OF TERMINATION.
8.1 Termination by CITY or CUSTOMER.
a. Condemnation. If all or any significant portion of the Cable
System or the CUSTOMER System shall be taken for any public or quasi public purpose
by any lawful power or authority by the exercise of the right of condemnation or eminent
domain, either Party may elect, by 30 days' prior written notice to the other Party, to
terminate the affected Short Form IRU Agreement (and this Agreement if all Short Form
IRU Agreements are affected). Notice of intended condemnation shall be delivered to
CUSTOMER at least 60 days prior to the date of the taking. Termination shall be
effective upon the date of the taking.
b. Damaize or Destruction. If either Party gives notice to the other
that the Cable System or the CUSTOMER System has been substantially damaged or
destroyed by force majeure (an outside force beyond either Party's control), and the
Cable System or the CUSTOMER System is not repaired within 30 days following
receipt of such notice, this Agreement shall terminate on the last day of the 30 day cure
period.
C. Bankruptcy. If CUSTOMER or the CITY, as the case may be,
shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to
any present or future federal or state bankruptcy law or under any similar federal or state
law, or shall be adjudicated as bankrupt or insolvent, or shall make a general assignment
for the benefit of its creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or if any involuntary petition proposing the adjudication of
CUSTOMER or the CITY, as the case may be, as a bankrupt or its reorganization under
any present or future federal or state bankruptcy law or any similar federal or state law
shall be filed in any court and such petition shall not be discharged or denied within
ninety (90) days after the filing thereof, or if a receiver, trustee or liquidator of
CUSTOMER or the CITY, as the case may be, of all or substantially all of the assets of
CUSTOMER or the CITY, as the case may be, and shall consent to or acquiesce in such
appointment, then the other Party hereto may, at its sole option, immediately terminate
this Agreement, with termination to be effective upon delivery of written notice of
termination.
8.2 Termination by CITY.
a. Default by CUSTOMER. If CUSTOMER has failed to pay any
costs due hereunder or is otherwise in breach of any provision of this Agreement, and
such breach is not cured within the time periods described in Section 11.1 below, CITY
may terminate this Agreement effective as of the last day of the required notice period.
b. Need by CITY. Notwithstanding any provision contained in this
Agreement to the contrary, the CITY shall have the right to terminate any Short Form
IRU Agreement upon three (3) months written notice to CUSTOMER if the
CUSTOMER System provided by such Short Form IRU Agreement is needed in
connection with the CITY's telecommunications needs related to CITY business. At the
time of such notice of termination, the CITY shall waive the remaining annual payment
of the Short Form IRU Agreement that the CITY elects to terminate. If the CITY
terminates, it will use its commercially reasonable efforts to relocate CUSTOMER
System or any segment under the affected Short Form IRU Agreement, and if a
satisfactory relocation reroute can be identified, CUSTOMER and CITY shall enter into a
new Short Form IRU Agreement.
5
8.3 Termination by CUSTOMER.
a. Relocation. If the CITY has exercised its relocation rights in
accordance with Section 7, and within 15 days after the relocation, CUSTOMER delivers
to the CITY written notice that the CUSTOMER System or affected portion thereof has
not been relocated in a manner that allows for appropriate usage by CUSTOMER, and
services are not restored within 30 days of the date of CUSTOMER'S notice,
CUSTOMER may terminate the applicable Short Form IRU Agreement (or this
Agreement) effective as of the last day of the 30 day period.
b. Failure to Meet Specifications/Non-Acceptance.
i) If at any time following the completion and acceptance of
the acceptance test, as described in Section 24, for a specific Short Form IRU Agreement,
CUSTOMER delivers notice to the CITY that specifically identifies the Specifications
with which CUSTOMER contends that the portion of the Cable System utilized in the
Short Form IRU Agreement does not conform to Specifications and demonstrates to the
CITY's satisfaction that such portion of the Cable System fails to perform in accordance
with the Specifications set forth in Schedule-D of the affected Short Form IRU
Agreement, and the CITY does not restore the affected portion of the Cable System to the
required Specifications within 90 days after receipt of notice, then the CUSTOMER has
the right to terminate affected Short Form IRU Agreement(s) by notice delivered within
15 days following the last day of the 90 period.
ii) If CUSTOMER delivers notice to the CITY within seven
(7) days of completion of the acceptance test described in Section 24 that specifically
identifies a nonconformity with the acceptance testing plan and demonstrates to the
CITY's satisfaction such nonconformity, and the CITY does not cure such nonconformity
within 90 days after receipt of notice, then the CUSTOMER has the right to terminate the
affected Short Form IRU Agreement by notice delivered within 15 days following the
last day of the 90 period.
iii) No Credit Allowance shall be provided in the event of
failure to conform to the acceptance testing plan, and no Credit Allowance shall be
provided in the event of failure to meet Specifications following the completion of the
acceptance testing plan unless the failure to meet Specifications results in Continued
Total Service Interruptions as defined in clause (d) below, in which case the terms of
clause (d) and Section 4.2 shall control.
C. CUSTOMER Sole Discretion. CUSTOMER shall have the option,
in its sole discretion and for any reason, to terminate this Agreement or any Short Form
IRU Agreement upon three (3) months prior written notice to the CITY, subject to
payment of the Termination Settlement Charges described below.
d. Continued Total Service Interruptions. If there shall occur, within
any period of 12 consecutive months, four Total Service Interruptions, as defined in the
Short Form IRU Agreement ("Continued Total Service Interruptions") caused by factors
Cl
within the CITY's reasonable control, CUSTOMER may, upon the occurrence of the next
Total Service Interruption that is within the CITY's reasonable control, terminate the
Short Form IRU Agreement affected by the Continued Total Service Interruptions.
e. Default by City. If the CITY is in breach of any provision of this
Agreement for a reason other than as described in Section 8.3 (a), (b), or (d) above, and
such breach is not cured within the time periods described in Section 11.2 below,
CUSTOMER may terminate this Agreement effective as of the last day of the required
notice period.
8.4 Rights upon Termination.
a. If this Agreement or any Short Form IRU Agreement is terminated
by either Party in accordance with the terms of Section 8.1 or 8.2(b), CUSTOMER shall
pay all required sums under each Short Form IRU Agreement and all applicable Taxes
through the effective date of the termination. This right of termination shall be
CUSTOMER's sole and exclusive remedy in the event of a termination pursuant to
Section 8.1 or Section 8.2(b).
b. If this Agreement is terminated by the CITY in accordance with
the terms of Section 8.2(a), CUSTOMER shall pay all required sums under each Short
Form IRU Agreement and all applicable Taxes through the last day of each Short Form
IRU Agreement then in effect, and shall be liable for any damages for other uncured
breaches.
C. If this Agreement is terminated by CUSTOMER in accordance
with the terms of Section 8.3 (a), (b)(i), (d), or (e), CUSTOMER shall pay all required
sums under each Short Form IRU Agreement and all applicable Taxes through the
effective date of the termination. If this Agreement is terminated by CUSTOMER in
accordance with the terms of Section 8.3(b) (ii), no fees shall be due or payable by
CUSTOMER. This right of termination shall be CUSTOMER's sole and exclusive
remedy in the event of a termination pursuant to Section 8.3 (a), (b)(i), (b)(ii), (d), and
(e), except that any Credit Allowances earned pursuant to clause (d) shall be applicable to
fees owed by CUSTOMER.
d. If this Agreement is terminated by CUSTOMER in accordance
with the terms of Section 8.3(c), the annual payments shall be recalculated to reflect the
termination date and, therefore, the new Term of the Agreement. The recalculated annual
payments shall use the appropriate discount or premium and shall be retroactive to all
CUSTOMER payments from commencement to the termination of each Short Form IRU
Agreement. The cumulated difference between the annual payments made by the
CUSTOMER to the CITY under the CUSTOMER's originally selected Term of the
Agreement (including any discounts) and the recalculated payments applicable for the
effective Term of the Agreement shall hereinafter be known as "Termination Adjustment
Charge" or "TAC". The TAC shall be included in the "Termination Settlement Charges"
or "TSC", as defined in clause (e) below.
7
e. Furthermore, in the event CUSTOMER elects to terminate any
Short Form IRU Agreement under the terms of the provisions of Section 8.3(c), a
termination charge of half the remaining payments due if the Short Form IRU Agreement
were to reach its full Term shall apply as part of the TSC. The TSC shall be calculated as
follows: TSC = TAC + %2 multiplied by the remaining payments due under original Short
Form IRU Agreement.
f. CITY shall transfer the ownership of the demarcation patch panels
at end of the Term. The CITY shall remove CUSTOMER system from CITY Cable
System by physically removing optical fiber cables from the splicing enclosure on public
rights -of -way to the demarcation point leaving the patch panel in place at CUSTOMER's
request.
9. ADMINISTRATION OF THIS AGREEMENT.
9.1 Within thirty (30) calendar days after the effective date of this Agreement,
CUSTOMER and the City Administrator shall designate, by written notice to the other, a
representative who is authorized to act in the respective Party's behalf with respect to
those matters delegated to the authorized representatives. Each Party may designate an
alternate representative with full authority to act in the absence of the authorized
representative. Each Party shall have the right to change its representative or alternate by
written notice.
9.2 The authorized representatives shall have the following responsibilities,
among others:
a. Perform those functions and duties assigned to them in this
Agreement.
b. Review and attempt to resolve any disputes between the Parties
arising under this Agreement.
C. Arrange for the development and completion of procedures to
implement the provisions of this Agreement.
9.3 Any expenses incurred by the authorized representative in connection with
his/her duties shall be paid by the Party he/she represents.
9.4 The authorized representative shall have no authority to modify this
Agreement.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY.
10.1 The CUSTOMER shall indemnify, defend and hold harmless the CITY,
the Department of Light & Power, the City Council of the CITY, and all of the CITY's
boards, elected officials, agents, representatives, employees, assigns, and successors in
interest (collectively, the "Indemnified Parties") from and against any and all suits and
causes of action, claims, charges (including, without limitation, all costs of defense, such
as reasonable attorneys' fees and cost, costs of witnesses and professional analysts),
damages, demands, judgments, civil fines and penalties, or losses or any kind or nature
whatsoever, arising out of or in connection with CUSTOMER's use of the Cable System
or CUSTOMER System, including, but not limited to: (a) claims arising from any
failure, breakdown, interruption or deterioration of the Cable System or service
components provided by the CITY to CUSTOMER or service provided by CUSTOMER
to third parties; and (b) claims of patent infringement arising from combining or using
services or equipment furnished by CUSTOMER in connection with services or
equipment furnished by others; and (c) death, bodily injury, or personal injury to any
person or damage or destruction to any property, except to the extent such damage or
injury is due to the gross negligence or willful misconduct of any of the Indemnified
Parties.
10.2 EXCEPT FOR THE CREDIT ALLOWANCE FOR TOTAL SERVICE
INTERRUPTIONS, AS DESCRIBED IN THE SHORT FORM IRU AGREEMENT,
THE LIABILITY OF THE CITY ASSOCIATED WITH THE INSTALLATION,
PROVISION, USE, MAINTENANCE, REPAIR, TERMINATION OR RESTORATION
OF THE CABLE SYSTEM PROVIDED PURSUANT TO THIS AGREEMENT SHALL
NOT EXCEED AN AMOUNT EQUAL TO THE PRORATED PORTION OF
CHARGES FOR THE AFFECTED SHORT FORM IRU AGREEMENT FOR THE
PERIOD DURING WHICH THAT SHORT FORM IRU AGREEMENT WAS
AFFECTED.
10.3 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT OR
ANY SHORT FORM IRU AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES, (INCLUDING, BUT NOT LIMITED TO, ANY CLAIM FOR LOSS OF
SERVICES), WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN
CONNECTION WITH, TRANSMISSION INTERRUPTIONS OR PROBLEMS,
INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY OR
EQUIPMENT, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, COST OF
REPLACEMENT SERVICES, OR CLAIMS OF CUSTOMERS, WHETHER
OCCASIONED BY ANY REPAIR OR MAINTENANCE PERFORMED BY, OR
FAILED TO BE PERFORMED BY, A PARTY OR ANY OTHER CAUSE
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY.
THE CUSTOMER SHALL INCLUDE IN ANY AGREEMENT WITH ANY THIRD
PARTY RELATING TO THE USE OF THE CABLE SYSTEM OR THE CUSTOMER
SYSTEM A WAIVER (USING THE ABOVE LANGUAGE) BY SUCH THIRD
PARTY OF ANY CLAIM FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY
CLAIM FROM ANY CUSTOMER FOR LOSS OF SERVICES). 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
W
ALL REGULATORY OR OTHER LEGAL LIMITATIONS, AS WELL AS
APPLICABLE TARIFFS.
11. DEFAULT.
11.1 CUSTOMER shall not be in default under this Agreement or in breach of
any provision hereof unless and until the CITY shall have given CUSTOMER written
notice of a breach and CUSTOMER shall have failed to cure the same within thirty (30)
days after receipt of a notice, other than any default in payment which must be cured
within ten (10) 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 commence to cure the same within the thirty (30) day period and to
prosecute such cure with due diligence, the time for curing such breach shall be extended
for a reasonable period of time to complete such cure. Upon the failure by CUSTOMER
to timely cure any such breach after notice thereof from the CITY, the CITY shall have
the right to take such action as it may determine, in its sole discretion, to be necessary to
cure the breach or terminate this Agreement or pursue such other remedies as may be
provided by law or in equity.
11.2 The CITY shall not be in default under this Agreement or in breach of any
provision hereof unless and until CUSTOMER shall have given the CITY written notice
of such breach and the CITY shall have failed to cure the same within thirty (30) days
after receipt of such notice; provided, however, that where such breach cannot reasonably
be cured within such thirty (30) day period, if the CITY shall commence to cure the same
within the thirty (30) day period and to prosecute such cure with due diligence, the time
for curing such breach shall be extended for a reasonable period of time to complete such
cure; and provided further that if the breach is one described in Section 8.3 (a), (b), or (c),
the time period for cure shall be as specified in such Paragraph. Upon the failure by the
CITY to timely cure any such breach after applicable notice (as described in Section 8.3
and herein) thereof from CUSTOMER, CUSTOMER shall have the right to terminate
this Agreement or the affected Short Form IRU Agreement.
12. FORCE MAJEURE.
Neither Party shall be considered to be in default in any of its non -monetary
obligations under this Agreement when a failure of performance shall be due to an
uncontrollable force; provided, however, that an uncontrollable force shall not relieve a
monetary default. The terms "uncontrollable force" shall mean any cause beyond the
control of the Party affected, including, but not restricted to, flood, earthquake, storm,
fire, lightening, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor
material shortage, sabotage, federal, state, or municipal action, statute, ordinance, or
regulation, embargoes of the United States Government or any other government, which
by exercise of due diligence such Party could not reasonably have been expected to avoid
and by exercise of due diligence has been unable to overcome. Either Party rendered
unable to fulfill any of its obligations under this Agreement by reason of an
uncontrollable force, shall give written notice within five (5) business days of such fact to
10
the other Party and shall exercise due diligence to perform its obligations when upon the
removal or termination of the uncontrollable force.
13. ASSIGNMENT.
13.1 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.
13.2 In the event of any assignment or Transfer by either Party undertaken
pursuant to Section 13.1 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.
Any waiver at any time by either Party of its rights with respect to a default under
this Agreement, or with respect to any other matters arising in connection with this
Agreement, shall not be deemed a waiver with respect to subsequent default or other
matter.
15. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY.
Except where specifically stated in this Agreement to be otherwise, the duties,
obligations, and liabilities of the Parties are intended to be several and not joint or
collective. Nothing contained in this Agreement shall be construed to create an
association, trust, partnership, or joint venture or impose a trust or partnership duty,
obligation, or liability on or with regard to either Party. Each Party shall be individually
and severally liable for its own obligations under this Agreement.
16. NO THIRD -PARTY BENEFICIARIES.
This Agreement shall not be construed to create rights in, or to grant remedies to,
any third party as a beneficiary to this Agreement or of any duty, obligation or
undertaking established herein.
11
17. NOTICES.
Any written notice under this agreement shall be deemed properly given if sent by
registered or certified mail, postage prepaid, or by nationally recognized overnight
delivery service or by facsimile or electronic mail to the address specified below, unless
otherwise provided for in this Agreement. Notices shall be deemed given upon receipt or
refusal to accept receipt if sent by U.S. mail, messenger, or overnight delivery service,
and on the date delivered by facsimile if there is machine confirmation of delivery, and
on the date delivered by electronic mail, if, in the case of facsimile or electronic mail, the
notice is followed within 24 hours by U.S. mail or overnight delivery.
CITY: THE CITY OF VERNON
ATTN: ALI R. NOUR
ENGINEERING MANAGER
4305 SANTA FE AVENUE
VERNON, CA 90058-0805
Fax: (323) 826-1425
Email: anour@ci.vemon.ca.us
CUSTOMER: HUXTABLE'S KITCHEN, INC.
ATTN: LUIS P. SANTOS
CONTROLLER
2100 E. 49TH STREET
VERNON, CA 90058
Fax: (323) 584-7885
Email: luiss@huxtables.com
18. GOVERNING LAW AND FORUM SELECTION.
The validity, interpretation, performance, and enforcement of this Agreement
shall be controlled and construed under the internal laws of the State of California. Any
action brought relating to this Agreement shall be brought and held exclusively in the
County of Los Angeles, California.
19. NO WARRANTIES.
THE CITY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER
THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE CITY
DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR
ERROR -FREE, OR THAT THE SERVICES WILL MEET CUSTOMER'S
REQUIREMENTS OR THAT THE SERVICES WILL PREVENT UNAUTHORIZED
ACCESS BY THIRD PARTIES.
12
20. USE OF THE CUSTOMER SYSTEM.
CUSTOMER shall have exclusive control over its provisioning of voice, data,
and/or other video services and other services including, without limitation, CUSTOMER
premise and nodal electronics, electronics installation, configuration, operation,
maintenance and monitoring.
21. PLURALS.
In construction of this Agreement, words used in the singular shall include the
plural and the plural the singular, and/or is used in the inclusive sense, in all cases where
such meanings would be appropriate.
22. PARTS OF AGREEMENT.
All Short Form IRU Agreements, attachments, exhibits and appendices attached
hereto shall be deemed a part of this Agreement, and shall have full force and effect.
Short Form IRU Agreements shall be identified and named with a numeric designator by
chronological date of execution, e.g., -01, Short Form IRU Agreement, and attached
chronologically following this Agreement and its exhibits and made a part of this
Agreement.
23. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each and all of
which shall be deemed for all purposes to be one agreement. However, this Agreement
shall not become effective unless and until all Parties hereto have executed either the
original or a counterpart of the Agreement.
24. ACCEPTANCE TESTING.
The CITY will submit an acceptance testing plan to CUSTOMER for approval
within thirty (30) days following the mutual execution of any Short Form IRU
Agreement. CUSTOMER will review and provide comments within twenty (20) days of
its receipt of the acceptance testing plan, and CUSTOMER's failure to provide comments
within such twenty (20) day period shall be deemed to be CUSTOMER's approval of the
CITY's acceptance testing plan. If CUSTOMER provides comments to the CITY's
proposed acceptance plan within the twenty (20) day period, the CITY and CUSTOMER
will use good faith efforts to agree to the terms of a mutually acceptable acceptance plan
within thirty (30) days following the CITY's receipt of the CUSTOMER's comments,
such final acceptance testing plan to include non-destructive attenuation tests and optical
time domain reflectometer tests on each segment. If the Parties fail to reach agreement
on the terms of an acceptance testing plan, the Short Form IRU that is the subject of the
acceptance test plan that is in dispute shall be terminated, and neither Party shall have any
further obligation or liability to the other. If the Parties reach agreement on the
acceptance testing plan, then CUSTOMER shall deliver to the CITY written notice of
disapproval of any aspect of the Cable System that does not nonconfonm to the
requirements set forth in the final acceptance testing plan within seven (7) days of
13
completion of the acceptance test. CUSTOMER's failure to deliver such notice of
disapproval within such seven (7) day period shall be deemed acceptance of the Cable
System in conformity with the acceptance testing plan. If CUSTOMER delivers notice of
nonconformity with the acceptance testing plan, CITY shall use its commercially
reasonable efforts to cure such nonconformity within 90 days after the CITY's receipt of
the CUSTOMER's notice of nonconformity. The terms of Section 8.3 (b)(ii) and the
remedies described in Section 8.4 (c) above shall apply if CUSTOMER notifies CITY
within 15 days following the last day of the 90 day notice period that the Cable System
still does not conform to the testing plan criteria.
25. BILLING AND PAYMENT.
25.1 The CITY shall invoice CUSTOMER for all fees and charges hereunder
as determined by the Short Form IRU Agreement(s) and this Agreement as follows:
a. CITY shall invoice CUSTOMER per Short Form IRU Agreement
upon CUSTOMER acceptance of each deliverable.
b. CUSTOMER shall submit payment in full within thirty (30) days
after receipt of the CITY's invoice.
C. CUSTOMER agrees to pay the CITY the fees set forth in the Short
Form IRU Agreement payable on a quarterly basis of the calendar year. Payment shall be
made in advance by the 15th day of the month preceding the beginning of the quarter.
26. TITLE.
CUSTOMER agrees that all right, title, and interest in all the CUSTOMER
System provided by the CITY hereunder and as specified in the Short Form IRU
Agreement shall at all times remain exclusively with the CITY. The CITY agrees that all
right, title and interest in CUSTOMER System associated equipment provided by
CUSTOMER as specified in the Short Form IRU Agreements shall at all times remain
exclusively with CUSTOMER. The CITY acknowledges that CUSTOMER has
contracted for the indefeasible right to use the CUSTOMER System at the time
CUSTOMER executes each Short Form IRU Agreement and agrees that it will not take
any action which shall be inconsistent with CUSTOMER's IRU interest.
27. ENTIRE AGREEMENT.
This Agreement constitutes the complete and final expression of the agreement of
the Parties and is intended as a complete and exclusive statement of the terms of their
agreement and supersedes all prior and contemporaneous offers, promises,
representations, negotiations, discussions, communications and agreements which may
have been made in connection with the subject matter hereof. All exhibits and schedules
are incorporated by reference. CUSTOMER represents that in entering into this
Agreement it has not relied on any previous representations or understandings of any
kind or nature.
14
28. SURVIVAL OF TERMS.
Notwithstanding anything to the contrary set forth in this Agreement or the Short
Form IRU Agreement, no termination of this Agreement or any Short Form IRU
Agreement shall affect the rights or obligations of any Party hereto with respect to any
payment hereunder for services rendered prior to the date of termination and the terms of
Sections 8, 10, 18, 19, 26, 27, and 29 shall survive the termination of this Agreement.
29. DISPUTE RESOLUTION.
29.1 USE OF JAMS. THE PARTIES AGREE THAT ANY DISPUTE OR
CONTROVERSY ARISING OUT OF OR RELATING TO ANY INTERPRETATION,
CONSTRUCTION, PERFORMANCE, TERMINATION OR BREACH OF THIS
AGREEMENT OR THE USE OF THE CABLE SYSTEM WILL BE SETTLED BY
FINAL AND BINDING ARBITRATION BY A PANEL OF ARBITRATORS TO BE
HELD IN LOS ANGELES COUNTY, CALIFORNIA, IN ACCORDANCE WITH THE
RULES OF THE JUDICIAL ARBITRATION & MEDIATION SERVICES, INC.
("JAMS'). WITHOUT LIMITING ANY OTHER PROVISION HEREIN, THIS
SECTION 29 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND
WILL APPLY TO ANY CLAIM, DISPUTE, OR CONTROVERSY THAT ARISES
DURING OR AFTER THE TERMINATION OF THIS AGREEMENT.
29.2 PROCEDURE. THE ARBITRATION SHALL TAKE PLACE BEFORE
A PANEL OF THREE RETIRED JUDGES OF THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA (THE "ARBITRATORS") UNDER THE AUSPICES OF
JAMS. SUCH ARBITRATION SHALL BE INITIATED BY THE PARTIES, OR
EITHER OF THEM, WITHIN TEN (10) CALENDAR DAYS AFTER EITHER PARTY
SENDS NOTICE OF A DEMAND TO ARBITRATE (THE "ARBITRATION
NOTICE") TO THE OTHER PARTY AND TO JAMS. THE ARBITRATION NOTICE
SHALL CONTAIN A DESCRIPTION OF THE SUBJECT MATTER OF THE
ARBITRATION, THE DISPUTE WITH RESPECT THERETO, THE AMOUNT
INVOLVED, IF ANY, AND THE REMEDY OR DETERMINATION SOUGHT.
29.3 SELECTION OF ARBITRATORS. EACH PARTY SHALL SELECT A
RETIRED JUDGE FROM THE JAMS PANEL, AND THE TWO SELECTED JUDGES
SHALL MUTUALLY AGREE ON THE THIRD RETIRED JUDGE FROM THE JAMS
PANEL. IF ONE OF THE PARTIES DOES NOT SELECT A RETIRED JUDGE
FROM THE JAMS PANEL WITHIN 14 CALENDAR DAYS AFTER RECEIPT OF
THE ARBITRATION NOTICE, JAMS WILL SELECT THE SECOND JUDGE, AND
THE JUDGE SELECTED BY JAMS AND THE JUDGE SELECTED BY THE OTHER
PARTY WILL SELECT THE THIRD JUDGE FOR THE PANEL. THE THIRD
JUDGE IS TO BE SELECTED WITHIN 10 CALENDAR DAYS FOLLOWING THE
SELECTION OF THE FIRST TWO JUDGES. THE THREE JUDGES WILL
TOGETHER SERVE AS THE ARBITRATORS. IN THE EVENT OF ANY
SUBSEQUENT VACANCIES OR INABILITIES TO PERFORM AMONG THE
ARBITRATORS APPOINTED, THE ARBITRATORS INVOLVED SHALL BE
REPLACED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 29.3
15
AS IF SUCH REPLACEMENT WAS AN INITIAL APPOINTMENT TO BE MADE
UNDER THIS SECTION 29.3 WITHIN THE TIME CONSTRAINTS SET FORTH IN
THIS SECTION 29.3, MEASURED FROM THE DATE OF NOTICE OF SUCH
VACANCY OR INABILITY TO THE PERSON OR PERSONS REQUIRED TO
MAKE SUCH APPOINTMENT.
29.4 THE DECISION. ANY PARTY MAY BE REPRESENTED BY
COUNSEL OR OTHER AUTHORIZED REPRESENTATIVE. IN RENDERING A
DECISION(S), THE ARBITRATORS SHALL DETERMINE THE RIGHTS AND
OBLIGATIONS OF THE PARTIES ACCORDING TO THE SUBSTANTIVE AND
PROCEDURAL LAWS OF THE STATE OF CALIFORNIA AND THE TERMS OF
THIS AGREEMENT. THE DECISION OF THE ARBITRATORS SHALL BE BASED
ON THE EVIDENCE INTRODUCED AT THE HEARING, AND SHALL BE BASED
ON, AND ACCOMPANIED BY, A WRITTEN STATEMENT OF DECISION
EXPLAINING THE FACTUAL AND LEGAL BASIS FOR THE DECISION AS TO
EACH OF THE PRINCIPAL CONTROVERTED ISSUES. THE AGREEMENT OF
TWO OF THE THREE ARBITRATORS AS TO THE RESOLUTION OF THE
DISPUTE SHALL BE A CONCLUSIVE RESOLUTION. THE ARBITRATORS
SHALL DELIVER THE WRITTEN DECISION TO THE PARTIES WITHIN 30
CALENDAR DAYS FOLLOWING THE DATE OF THE SELECTION OF THE LAST
OF THE ARBITRATORS. THE DECISION SHALL BE CONCLUSIVE AND
BINDING, AND IT MAY THEREAFTER BE CONFIRMED AS A JUDGMENT BY
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, SUBJECT ONLY TO
CHALLENGE ON THE GROUNDS SET FORTH IN THE CALIFORNIA CODE OF
CIVIL PROCEDURE SECTION 1286.2. THE VALIDITY AND ENFORCEABILITY
OF THE DECISION OF THE ARBITRATORS IS TO BE DETERMINED
EXCLUSIVELY BY THE CALIFORNIA COURTS. THE ARBITRATORS SHALL
HAVE THE AUTHORITY TO GRANT EITHER PARTY ALL REMEDIES
OTHERWISE AVAILABLE BY LAW, INCLUDING INJUNCTIONS.
29.5 PAYMENT OF ARBITRATORS. THE NON -PREVAILING PARTY
SHALL PAY THE COSTS OF ALL ARBITRATORS AND THE ARBITRATION
PROCESS.
29.6 NOTICE OF WAIVER. EACH PARTY IS AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION
OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS
PROVIDED BY CALIFORNIA LAW AND EACH PARTY IS GIVING UP ANY
RIGHTS IT MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT
OR JURY TRIAL. EACH PARTY IS GIVING UP ITS JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION. IF A PARTY
REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURES. EACH
PARTY'S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
16
30. SEVERABILITY.
If any portion of this Agreement shall be held by a court of competent jurisdiction
to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain
enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each portion of
this Agreement containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or enforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, void, or unenforceable.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of this day and year first
above written.
CITY OF VERNON
LEONIS C. MALBURG, Mayor
ATTEST:
MANUELA GIRON,
Acting City Clerk
APPROVED AS TO FORM:
JEFF A. HARRISON, City Attorney
CUSTOMER
By:
Print Name:
Title:
By:
Print Name:
Title:
17
EXHIBIT "A"
ALL SHORT FORM IRU AGREEMENTS
EXHIBIT "A"
SHORT FORM IRU-05.1
Indefeasible Right of Use Agreement
THIS SHORT FORM IRU-05.1 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein
referred to as "IRU-05.1 Agreement") is made, entered into and executed in duplicate originals,
either copy of which may be considered as the original hereof for all purposes, as of this
day of May, 2007 (the "Effective Date"), between the City of Vernon (hereinafter referred to as
the "CITY") having its offices at 4305 Santa Fe Avenue, Vernon, California 90058, and
Huxtable's Kitchen, Inc. (hereinafter referred to as "CUSTOMER"), a corporation with its
office at 2100 E. 49`h Street, Vernon, California 90058, and upon execution shall be a part of the
master agreement entitled CUSTOMER Optical Fiber Use Agreement ("Agreement") dated May
, 2007. Each initially capitalized term used in this IRU-05.1 Agreement not defined herein shall
have the meaning ascribed to such term in the Agreement. All of the terms and conditions of the
Agreement shall apply to this IRU-05.1 Agreement, and govern and control each Party's rights
and obligations hereunder.
RECITALS
WHEREAS, the CITY leases to commercial users certain optical dark fiber strands and
associated facilities in the CITY's Cable System for voice, data, and other video services; and
WHEREAS, CUSTOMER desires to lease such Cable System components and to use the
CUSTOMER System for its business.
THEREFORE, in consideration of the mutual agreements herein, the Parties agree as
follows:
1. Grant of Cable System and CUSTOMER System. The CITY hereby grants to
CUSTOMER an Indefeasible Right of Use (IRU) of the following CITY Cable System
components:
Fiber strand numbers 01 and 02 of the CITY Cable System terminating in each
CUSTOMER facility and dedicated for CUSTOMER exclusive use, as identified in
IRU-05.1-Schedule—E.
The above -described individual CITY Cable System components collectively shall be the
CUSTOMER System for this IRU-05.1 Agreement. The CUSTOMER System shall be
inclusive of the CITY'S fiber optic Cable System between and including the CITY'S
sides of the originating and terminating demarcation points.
2. Project Schedule. 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-05.1 Agreement. The CITY shall use commercially reasonable efforts to comply
with the project schedule that is mutually agreed by both Parties and attached hereto as
IRU-05.1-Schedule-F; provided, however, that CITY's failure to comply with the project
schedule shall not constitute a breach or default hereunder, and CITY shall have no
liability to CUSTOMER for any damages, including, without limitation, any
consequential or incidental damages, loss of use, loss of profits, or other claims in the
event the CITY does not comply with the dates set forth in the project schedule. As
CUSTOMER's sole and exclusive remedy in the event of CITY's failure to comply with
the project schedule, CUSTOMER may terminate this IRU-05.1 Agreement by delivering
written notice to CITY within fifteen days following the CITY's failure to comply with
the project schedule, and if the CITY fails to cure the identified failure in the project
schedule within 30 days following receipt of CUSTOMER's notice, CUSTOMER shall
have the right to terminate this IRU-05.1 Agreement; provided, however, that to the
extent that the failure to comply with the project schedule is directly or indirectly affected
by acts or omissions of CUSTOMER, its employees, agents, or representatives
(collectively, a "CUSTOMER Delay"), the project schedule shall be extended on a day
for day basis for each day of delay wholly or partially caused by CUSTOMER Delay.
3. Commencement and Length of Term. CUSTOMER'S indefeasible right of use in each
component of the CUSTOMER System shall commence on the date that CUSTOMER
accepts or is deemed to have accepted, in accordance with the Section 24 of the
Agreement, the portion of the Cable System covered by this IRU-05.1 Agreement as
meeting the specifications set forth in the attached IRU-05.1-Schedule-D, determined in
accordance with the acceptance testing plan as described in Section 24 of the Agreement
(the "Commencement Date"). The length of the Term for this IRU-05.1 shall be five
years from the Commencement Date.
4. Obligations of the CITY. The CITY shall provide the following items for the
CUSTOMER System:
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. Obligations of the CUSTOMER. CUSTOMER, at its sole cost, and in a manner
acceptable to CITY, shall provide the following items for the CUSTOMER System:
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 for CITY's access to 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-05.1 Agreement.
6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-
05.1 Agreement is attached hereto as IRU-05.1-Schedule-B. , The payments and charges
shall be in accordance with Section 25 of the Agreement and as specifically identified in
the following subparagraphs:
6.1 CUSTOMER shall pay a one time advanced engineering fee of (waived).
6.2 CUSTOMER shall pay a one time construction and installation charge of
(waived)
6.3 CUSTOMER shall pay a one-time connection charge of (waive!Q
6.4 CUSTOMER shall pay quarterly IRU fee payments of $1,530.00 based on a
monthly base rate of $510.00 with first quarterly payment due to the CITY upon
CUSTOMER execution of this IRU-05.1 Agreement, to cover the period from
June 1, 2007 through August 30, 2007.
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, or rearrangement of a ring or concentrator
operation. The charges and application rules are identified in IRU-05.1-Schedule
—C.
6.6 CUSTOMER shall be charged with any false maintenance calls on a time -and -
materials basis at the standard CITY rates in effect at the time services are
performed. The CITY'S rates in effect at the time of execution of this IRU-05.1
Agreement are set forth in Schedule -A hereto and are subject to increase at a rate
not to exceed the cumulative increase in the CPI (as defined below) since the last
rate change.
3
6.7 During the Term, the CITY reserves the right, on an annual basis, to increase the
recurring IRU fees at a rate not to exceed the Consumer Price Index, All Urban
Consumers (CPI), 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 this IRU-05.1 Agreement by the increase, if
any, in the CPI 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.
7. Credit Allowance.
The CITY will grant a Credit Allowance to be credited against monthly recurring IRU
charges for Total Service Interruptions calculated. The Credit Allowances will be
aggregated during a calendar year and credited in one (1) hour increments. The value of a
Credit Allowance for an hour of Total Service Interruption is the monthly recurring IRU
charge divided by 720 (the number of hours in a month, using 30 days per month). For
example, if the IRU charge is $510 per month, each hour of Total Service Interruption
during a month is valued at $0.71. A Total Service Interruption will be deemed to have
occurred only if:
7.1 Service becomes unusable to CUSTOMER as a result of failure of CITY
equipment, facilities, or personnel used to provide the service; and
7.2 The interruption is not wholly or partially the result of:
7.2.,1 The acts or omissions of CUSTOMER or its agents, employees, suppliers
or contractors;
7.2.2 The failure or malfunction of non -CITY equipment, facilities, or system;
7.2.3 Any circumstances or causes beyond the control of the CITY; or
7.2.4 Caused by scheduled maintenance, alteration, or completion of such
maintenance or alteration beyond normal time requirements.
7.3 All of the Credit Allowances will accumulate during a calendar year and be
credited against the CUSTOMER invoiced monthly recurring IRU service charge
for the first quarter of the next calendar year; provided, however, that Credit
Allowances will be paid in cash if any are outstanding at the end of the Term.
Credit Allowances will apply only to those segments experiencing the Total
Service Interruption.
8. This IRU-05.1 Agreement, including IRU-05.1-Schedule-A, IRU-05.1-Schedule-B, IRU-
05.1-Schedule-C, IRU-05.1-Schedule-D, IRU-05.1-Schedule-E, and IRU-05.1-Schedule-
a
F, which are attached are hereby incorporated into the Agreement, dated May ,
2007 and all of which constitutes the entire agreement between the Parties with respect to
the subject matter hereof. This IRU-05.1 Agreement cannot be modified except in
writing signed by both Parties.
IN WITNESS HEREOF the Parties have executed and delivered this IRU-05.1
Agreement effective the day and year first above written:
ATTEST:
MANUELA GIRON, Acting City Clerk
APPROVED AS TO FORM:
JEFF A. HARRISON, City Attorney
CITY OF VERNON
By:
LEONIS C. MALBURG, Mayor
CUSTOMER
By:
Print Name:
Title:
By:
Print Name:
Title:
5
IRU-05.1-SCHEDULE-A
IRU-05.1-Schedule-A
MAINTENANCE AND REPAIR
Charges for Time and Material Service
The CITY shall perform maintenance service at the rates established below,
which rates are subject to change not more than once per calendar year. Rates may be
increased in an amount not to exceed the cumulative increase in the CPI since the last
rate change. Unless specifically authorized by the CUSTOMER, no scheduled
maintenance will be performed outside of normal working hours.
Normal Working Hours Hourly Rate
7:00 a.m. to 3:30 p.m., $ 85.00
Monday through Friday (except for
CITY observed holidays)
Overtime Hours Hourly Rate
6:00 a.m. to 7:00 a.m., and $ 105.00
3:30 p.m. to 12:00 midnight,
Monday through Friday (except for
CITY observed holidays)
Holiday Hours and Special Call out Hourly Rate
Any time during a CITY observed holiday $ 130.00
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
Charges will be made for travel time to the location where maintenance is to be
performed. Charges will also be made for travel time from the said location (a) in the
event that maintenance carries over after 3:30 p.m., or (b) for any maintenance performed
during holiday hours of special call out. 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
Martin Luther King Day
Memorial Day
Thanksgiving Day and Day After
Christmas Day
Cesar Chavez Day
A- 1
IRU-05.1-Schedule-A (Continued)
All rates, charges, and holiday schedule are subject to change on each anniversary of the
Effective Date of this IRU-05.1 Agreement. Rates may be increased by the increase, if
any, in the CPI 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.
A-2
IRU-05.1-Schedule-B
SUMMARY
IRU-05.1 Agreement INVOICE
The summary IRU-05.1 Agreement Invoice provides a summary of all
transactions of this IRU-05.1 Agreement.
Fiber Optic connections between 2100 E. 49th Street and 2080 E. 49th Street
B.1 Transactions Invoice:
ITEM Description IRU Fees
1 One-time Advanced Engineering Fee Waived
2 One-time Construction and Installation Fee Waived
3 One time Connection Fee Waived
4 Quarterly IRU-05.1 Base Charges $ 1,530.00
(June 2007 through August 2007)
($5 1 0.00/month x 3 months = $1,530.00)
Total IRU-05.1 Agreement Fees $1,530.00
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. If applicable,
taxes shall be added or invoiced separately.
Im
IRU-05.1-SCHEDULE-C
IRU-05.1-Schedule-C
DARK FIBER PRICING
1.0 FEES:
1.1 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 CUSTOMER's dark fiber connectivity.
If the project is constructed, the advanced engineering fee will be credited against
the connection fee.
Advanced Engineering Fee $500.00
Special Conditions By Estimate
1.2 Dark Fiber Price Ranize:
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:
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-05.1 Agreement, a "Route" is that portion of the
Cable System that extends between the CUSTOMER points of
connections. The Route will include lateral extension into the
CUSTOMER building, as identified in IRU-05.1-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-1
IRU-05.1-Schedule-C (Continued)
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.
1.3 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.
2.0 One -Time Connection/Disconnection/Rearrangement Fees
2.1. 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
added or deleted, or rearranged subsequent to the cutover date and shall pay for
all connection services.
2.2 Building Service
The following one -rime 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:
Fiber Count Charge/Fiber
Each $400
B. Service Deletion:
Fiber Count I Charge/Fiber
Each $200
C-2
IRU-05.1-Schedule-C (Continued)
2.3 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-05.1-SCHEDULE-D
IRU-05.1-Schedule-D
CABLE SYSTEM SPECIFICATIONS
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 use commercially reasonable efforts to meet the Specifications as
detailed below for all cable installed for the Term of this Short Form IRU Agreement. If
any of the following Specifications (optical, splice loss, and end to end attenuation test
criteria) or any other Specifications set forth in this Short Form IRU Agreement are not
met following the notice and cure periods set forth in the Agreement, CUSTOMER shall
have the remedies set forth in the Agreement, subject to all limitations on remedies and
damages set forth in the Agreement. Nothing set forth herein constitutes a
representation or warranty or guarantee that the Cable System or CUSTOMER System
will meet the Specifications set forth below, and failure to meet the Specifications shall
not be the basis for any claim by CUSTOMER for damages or other remedies, except
for those remedies specifically provided for in the Agreement.
3.1 Single Mode Fiber:
Parameter Specifications Units
Maximum attenuation, 1314nm
Maximum attenuation, 1550nm
Cladding diameter
Core diameter
Cutoff Wavelength
Zero dispersion wavelength
Maximum dispersion (1285-1330 nm)
3.2 dice Loss
0.5 dB/Km
0.4 dB/Km
125 +/- 3
um
8.3
um
1250 +/- 100
nm
1310 +/- 12
nm
3.5 ps/ (nm-km)
Splice loss on CITY cables will average less than or equal to 0.15 dB for all
splices the CITY makes under this IRU-05.1 Agreement. The 0.15 dB splice average
will only apply to splices between cables of identical physical and optical properties
D-1
IRU-05.1-Schedule-D (Continued)
(i.e., core and cladding dimensions, reflective index and optical loss characteristics). All
splices shall be measured using bi-directional methods and averages.
3.3 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-05.1
Agreement:
Single Mode Fiber 1310 nm and 1550 nm
The end -to -end attenuation test criteria will be based on the following formula:
Maximum acceptable end -to -end attenuation = (A X Lx) + (0.15 X Nsp) + C
Where:
A = Max. attenuation at each wavelength as specified in Section 3 above
Lx = Installed length of cable in kilometers (km)
Nsp = Number of fiber splices in the cable sysem
C = Connector/pigtail loss. The attenuation contribution of each pigtail with
associated connector is considered to be 1.0 dB comprised of 0.85 dB
connector loss and 0.15 dB splice loss (pigtail to OSP cable splice).
Therefore, C = 1.0 dB if the span is connectorized on one end and 2.0 dB if
connectorized on both ends.
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-05.1-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-05.1-SCHEDULE-E
r
.o®
m
n D
0
W
D p
A{®
a w
C X
w
n 0
m
D O A
r f m
a
� Z
Pi
> _
i z D
®
C O x
z n
O
p
01
i
= _
19 p
Prl
z
p 0
am
O i n
O r
o
� m
C n O
z
A
a°
c
O m
p O
i3 n
{ 9
x
D
D r
z O
yy
D i
r
z W
O
3
9
O
®
z
z
i
n
r
R
n
5
m
z
°
3
-M44
N
O
r
C13
F
a
w
>
o
c
o
c�
a
a
c
='
C
o
c^A
m�
-<o
r
x>m
®Mq
3p
1 pZ
O
z
W
IRU-05.1-SCHEDULE-F
IRU-05.1-Schedule-F
PROJECT SCHEDULE
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-05.1
Agreement. The CITY shall use commercially reasonable efforts to comply with the
project schedule that is mutually agreed by both Parties and attached hereto as IRU-05.1-
Schedule-F.
Construction Start Date: May 22, 2007
Construction Completion Date: May 24, 2007
System Testing: May 25, 2007
CUSTOMER system use: May 25, 2007
F-1
«B99
TROUBLE -REPORTING
PROCEDURE
EXHIBIT `B"
EXHIBIT `B"
TROUBLE -REPORTING PROCEDURE
The CITY maintains its fiber optic network (Cable System) in accordance with
industry standards. Should a problem or trouble with the service arise, please call 323-
826-1461 (24 hours) to report trouble. This is the number of the CITY'S Technical
Control Center (TCC). The TCC will inform the maintenance and management group of
all trouble calls. The acting Maintenance Supervisor will initiate the indicated trouble
into the restoral action and coordinate all restoration activity. The CUSTOMER can
obtain the name and telephone number of the acting Maintenance Supervisor from the
TCC at the time of trouble reporting. Upon clearance of the trouble, the TCC will notify
the trouble -reporting location of clearance and reason for trouble.
The CITY shall use commercially reasonable efforts to be on site and begin
investigating and correcting the reported condition within four (4) hours of receipt of
report of the trouble. The CITY shall use commercially reasonable efforts to provide the
CUSTOMER a report of progress or lack thereof in restoring the system to operation, at
four-hour intervals, shall otherwise use commercially reasonable efforts to perform in
accordance with the Customer System/Cable System Specifications of the Short Form
IRU Agreement's Schedule-D.
EXHIBIT `B"
SUPPORTING
DOCUMENTS
May 10, 2007
Huxtable's Kitchen
Attn: Luis P. Santos, Controller
2100 E. 49th Street
Vernon, CA 90058
Re: Agreement No. 05 Optical Fiber Use Agreement and Short Form IRU-
05.1 Indefeasible Right of Use Agreements Relating to the City's
Fiber Optic Program
Dear Mr. Santos:
Transmitted herewith are the fully executed agreements as referenced
above, approved by City Council on May 7, 2007, through Resolution No.
9304.
If you have any questions regarding this matter, please call Mr. Ali
Nour, at (323) 583-8811 ext. 316.
Very truly yours,
City Clerk
NG:dr
c: Donal O'Callaghan
Ali Nour
Resolution No. 9304
Agreement File No. 07-048
E Ccfusivefy fndustriaf