Resolution No. 2010-044RESOLUTION NO. 2010-44
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION
OF AN OPTICAL FIBER USE AGREEMENT AND SHORT FORM
IRU-06.1 INDEFEASIBLE RIGHT OF USE AGREEMENT BY
AND BETWEEN THE CITY OF VERNON AND PWP
INDUSTRIES, INC. FOR THE USE OF THE CITY'S FIBER
OPTIC' NETWORK
WHEREAS, the City of Vernon ("City") has installed a fiber-
optic cable network in the City and has studied the feasibility of
providing excess unactivated 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 developed a program to provide
businesses with building -to -building fiber-optic connections; and
WHEREAS, the City and PWP Industries, Inc. ("PWP Industries")
have negotiated an Optical Fiber Use Agreement to establish the terms
and conditions by which the City will provide PWP Industries with the
use of fiber optic strands ("Optical Fiber Use Agreement") and a Short
Form IRU-06.1 Agreement to allow PWP Industries the specific use of
Strands 13 and 14 to connect buildings located at 5500 S. Boyle Avenue
and 3751 Seville Avenue ("Short Form IRU-06.1 Agreement"), collectively
referred to herein as the "Agreements"; and
WHEREAS, by memo dated March 23, 2010, the Director of Light
& Power has recommended that the City Council approve the Optical Fiber
Use Agreement and Short Form IRU-06.1 Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct..
SECTION 2: The City Council of the City of Vernon hereby
approves the Optical Fiber Use Agreement and the Short Form IRU-06.1
Agreement with PWP Industries, copies of which are attached hereto as
Exhibit A.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor or Mayor Pro-Tem to execute the Agreements for,
and on behalf of, the City of Vernon and the City Clerk, or Deputy
City Clerk, is hereby authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to take whatever
actions are deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this resolution and the
transactions herein approved or authorized.
SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or the City Clerk's designee, to send one of
each of the two fully executed Agreements to:
PWP Industries, Inc.
Attn. John Morrison
V.P. - Information Technology
5500 Boyle Avenue
Vernon, CA 90058
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SECTION 6: The City Clerk of the City of Vernon shall
certify to the passage, approval and adoption of this resolution, and
the City Clerk of the City of Vernon shall cause this resolution and
the City Clerk's certification to be entered in the File of Resolutions
of the Council of this City.
ATTXST:
Wil
APPROVED AND ADOPTED this 29th day of March, 2010.
City Clerk
Name: Hilario Gonzales
Title: Mayor /
_3_
STATE OF CALIFORNIA )
) sS
COUNTY OF LOS ANGELES )
I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution
No. 2010-44, was duly passed, approved and adopted by the City Council
of the City of Vernon at a regular meeting of the City Council duly
held on Monday, March 29, 2010, and thereafter was duly signed by the
Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this day of March, 2010, at Vernon, California.
(SEAL)
Willard G.
City Clerk
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EXHIBIT A
OPTICAL FIBER USE AGREEMENT
By and Between
THE CITY OF VERNON
and
PWP INDUSTRIES, INC.
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TABLE OF CONTENTS
Page
1. DEFINITIONS...:...............................................................................................................2
2. TERM...................................................:....................................:.......................................4
3. TAXES..............................................................................................................................4
4. MAINTENANCE AND CREDIT ALLOWANCE.............................................................4
5. FREEDOM OF ACTION...................................................................................................6
6. COMPLIANCE WITH LAWS...........................................................................................6
7. RELOCATION OF THE FACILITIES..............................................................................6
8. CUSTOMER COVENANTS.......................................................................:...:..................7
9. EVENTS OF TERMINATION AND EFFECT OF
TERMINATION................................................................................................................ 8
10. ADMINISTRATION OF THIS AGREEMENT............................................................... I I
11. INDEMNIFICATION AND LIMITATION OF LIABILITY...........................................12
12. CONFIDENTIALITY......................................................................................................13
13. DEFAULT.......................................................................................................................13
14. FORCE MAJEURE..........................................................................................................14
15. ASSIGNMENT................................................................................................................14
16. SUBCONTRACTING BY CITY.....................................................................................15
17. WAIVER.........................................................................................................................15
18. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY........................................15
19. NO THIRD -PARTY BENEFICIARIES...........................................................................15
20. NOTICES........................................................................................................................ 15
21. GOVERNING LAW AND FORUM SELECTION..........................................................16
22. NO WARRANTIES.........................................................................................................16
23. USE OF THE CUSTOMER SYSTEM . ...................... ................:.......:.............. ................ 16
24. PLURALS........................................................................................................................16
25.. PARTS OF AGREEMENT..............................................................................................16
26. COUNTERPARTS...........................................................................................................17
27. ACCEPTANCE TESTING:..............................................................................................17
28. BILLING AND PAYMENT.............................................................................................17
29. TITLE..............................................................................................................................18
30. ENTIRE AGREEMENT..................................................................................................18
31. SURVIVAL OF TERMS..................................................................................................18
32. AMENDMENT................................................................................................................18
33. CONFLICTING TERMS.................................................................................................18
34. HEADINGS..................................................................................................................... 18
35. SEVERABILTTY.............................................................................................................18
EXHIBIT A: Short Form IRU Agreements
EXHIBIT B: Trouble Reporting Procedure
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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 29 th
day of March , 2010 ("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 PWP INDUSTRIES, INC. (hereinafter referred to as
"CUSTOMER"), a California corporation, having an office at 5500 Boyle Avenue,
Vernon, California 90058, and which are sometimes referred to individually as "Party"
and collectively as "Parties."
RECITALS
WHEREAS, the CITY -has an existing optical fiber cable system or "Cable
System" (as hereinafter defined) throughout the City of Vernon, California; and
WHEREAS, the CITY has excess inactivated 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 andr to
such dark fibers, the CITY is willing to allow CUSTOMER to use certain other specified
CITY -owned property, including, but not limited to, the CITY's Cable System; and
WHEREAS, the CITY will provide fibers in the Cable System to CUSTOMER in
connection with undertaking one or more projects; and
WHEREAS, the Parties have agreed to enter into this Agreement which embodies
the mutual covenants and agreements for the long term relationship between the Parties
hereto and for each such project; and.
WHEREAS, the Parties have agreed to enter into separate Short Form IRU
Agreement(s) as hereinafter defined.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the Parties do hereby agree as follows:
DEFINITIONS.
1.1 For the purposes of this Agreement and the Short Form IRU Agreements,
the following terms, whether in the singular or in the plural, shall have the meaning
specified below:
a. Backbone: The physical location of the Cable System.
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b. Backbone Extension: A new addition to the Backbone that would
benefit potential lessees and that the CITY will own and construct. In general, a
Backbone Extension travels to a location that many other potential lessees also desire; it
does not travel to a location that is solely used by the CUSTOMER, which constitutes a
Service Drop.
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.
d. Customer Infrastructure: Any conduit, fiber, premises, buildings,
boxes, or other equipment or facilities belonging to CUSTOMER.
e. Customer System: The optical fiber strands, innerduct, conduit,
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).
f. Demarcation Points: The specific points where the Cable System
connects to the Customer Infrastructure and ownership of such infrastructure changes.
The Demarcation Points are marked by the City -furnished patch panels in each of the
relevant Customer facilities.
g. False Maintenance Call: A request by the CUSTOMER for
maintenance with respect to the Customer System to which the CITY responds, where the
CITY, in its sole discretion, later determines that the problem leading to the maintenance
request resulted from deficiencies in the Customer Infrastructure, not the Cable System.
h. Indefeasible Right of Use: The CUSTOMER's right to use a
certain portion of the Cable System and Customer -System pursuant to this Agreement
and any Short Form IRU Agreements.
i. Service Drop: An extension of the Cable System from the
Backbone to a Demarcation Point in the Customer's Facilities, desired only by the
CUSTOMER, paid for by the CUSTOMER, and used only by CUSTOMER.
j. Short Form IRU Agreement: An agreement between the CITY and
CUSTOMER which identifies the specific optical fiber strands and facilities to be
provided to CUSTOMER and which sets 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.
k. Specifications: The technical specifications described further in
Section 4.2 of this Agreement.
1. Term: The duration of this Agreement as described further in
Section 2 of this Agreement.
2. TERM,
2.1 Unless terminated sooner in accordance with the terms and conditions of
this Agreement, the duration of this Agreement is three (3) years (hereinafter referred to
as the "Term"), commencing on the date of this Agreement. 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. Notwithstanding any provision in the
Short Forum IRU Agreement to the contrary, 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, construction, or provision of a Service Drop and
the Customer System. The CUSTOMER shall also pay all Taxes levied upon the sale,
installation, use, construction or provision of any equipment provided hereunder, as
well as any Taxes assessed against it for the conduct of its business, during the Term of
this Agreement.
4. MAINTENANCE AND CREDIT ALLOWANCE.
4.1 All scheduled and emergency maintenance to and repair of the Cable
System or any facilities through which the Cable System passes, shall be performed by
or under the direction of the CITY at CITY's sole cost, except as otherwise provided
below in connection with services provided at CUSTOMER's request. If such work
would materially impact the CUSTOMER's use of the Cable System or Customer
System, the CITY shall provide CUSTOMER with reasonable notice of scheduled
maintenance.
4.2 Except as otherwise provided in this Agreement or in a 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
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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.
4.3 Emer envy 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, pursuant to the procedures set forth in Exhibit B, 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 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.
4.4 Scheduled Maintenance.
4.4.1 CITY's Option. The CITY from time to time may schedule and
perform periodic maintenance to the Cable System or Customer System, including work
to maintain dark fibers within Specification, at CITY's sole cost. If 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
generally limit adverse user impacts.
4.4.2 CUSTOMER's Request. The CITY will perform changes or
modifications to the Customer System at CUSTOMER'S request. CUSTOMER may
also request scheduled maintenance by delivering to the CITY a statement of work
detailing the service CUSTOMER desires to have performed, including a proposed 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, as adjusted by
the City. The adjustment in rates shall be in the discretion of the City, but shall not
exceed the cumulative increase in the CPI-U for the Los Angeles -Riverside -Orange
County, CA area between the effective date of the Short Form IRU Agreement and the
date of adjustment.
4.5 CUSTOMER is responsible for all maintenance and repairs on
CUSTOMER's side of the Demarcation Points.
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4.6 Access to CUSTOMER's property and Customer System. CUSTOMER
agrees to provide CITY, its officers, employees, agents, representatives, and
contractors access to Customer's Infrastructure and CUSTOMER's property when
reasonably necessary for repairs to the Customer System and the Cable System.
Except in the case of an emergency, CITY shall provide CUSTOMER with forty-eight
(48) hours advanced notice of any required access to Customer's Infrastructure.
4.7 Credit Allowance. In the event of Total Service Interruption as defined in
the Short Form IRU Agreement, CUSTOMER shall be entitled to the Credit
Allowance described in the applicable Short Form IRU Agreement.
5. FREEDOM OF ACTION.
Nothing in this Agreement shall restrict the CITY's right to conduct its business
and it may, without limitation, construct and install additional optical fiber cable systems
for any purpose whatsoever, 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 CITY may elect or be
required to relocate all or a portion of the Cable System or the Customer System, or both.
As between the CITY and the CUSTOMER, 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 pursuant to
a CUSTOMER request). The CITY shall use 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 reasonably
practicable of any other relocation.
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8. CUSTOMER COVENANTS.
8.1 CUSTOMER shall not interfere in any manner with the existence and
operation of any and all public and private rights -of -way, sanitary sewers, water mains,
storm drains, gas mains, poles, aerial and underground electric and telephone wires,
electroliers, cable television, and other telecommunications, utility, and municipal
property without the express written approval of the owner or owners of the affected
property or properties. CUSTOMER shall not do or permit anything to be done by
anyone under its direct control or doing work on its behalf. (i) within the public right-of-
way; (ii) that would in any way obstruct or interfere with the rights of, or injure, any
person located within the public right-of-way, or (iii) use the public right-of-way for any
improper or unlawful purpose. Notwithstanding the foregoing, this shall not be construed
to prohibit CUSTOMER from installing infrastructure in the public right-of-way with the
prior written consent of the CITY in accordance with this Agreement.
8.2 CUSTOMER shall keep all parts of the Customer System free of any liens
that may be created or which may attach as the result of the acts or omissions of
CUSTOMER, its employees, subcontractors or agents. If any such lien is filed,
CUSTOMER shall indemnify and hold harmless CITY from any and all costs to remove
such lien including but not limited to reasonable attorneys' fees.
8.3 CUSTOMER shall not be permitted to pledge its rights under this
Agreement as an asset for purposes of. obtaining financing without the prior written
consent of the CITY. The CITY reserves the right to impose conditions on such consent,
including, without limitation, the requirement that the entity to whom this Agreement
would be pledged comply with the provisions of Section 15 ("Assignment").
CUSTOMER may not, under any -circumstances, pledge the actual dark fiber or Customer
System as an asset to anyone for any purpose. The Customer System is public property
owned by the CITY and shall not be pledged to any party.
8.4 CUSTOMER shall not, in connection with its use of the Customer System,
commit, cause, maintain or permit, nor suffer or allow to be committed, caused,
maintained or permitted by anyone under its direct control or doing work on its behalf,
any waste, abuse or destructive use within the public right-of-way, nor any public or
private nuisance, nor any other act or thing which may disturb the quiet enjoyment of any
other person lawfully using the public right-of-way.
8.5 CUSTOMER shall be solely and fully responsible for the reporting of all
hazardous materials releases to the appropriate agencies, when such releases are caused
by, or result from, CUSTOMER's activities or those of anyone under its direct control or
doing work on its behalf. CUSTOMER shall take all necessary precautions to prevent
any hazardous materials used by CUSTOMER or by anyone under its direct control or
doing work on its behalf from entering into any storm or sewage drain system or from
being released within the public right-of-way.
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9. EVENTS OF TERMINATION AND EFFECT OF TERMINATION.
9.1 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 Parry may elect, by at least 30 days' prior written notice to the other Parry,
to terminate the affected Short Form IRU Agreement (and this Agreement if all Short
Form IRU Agreements are affected) upon the effective date of the taking.
b. Damage or Destruction. If either Parry 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 Parry'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 Parry hereto may, at its sole option, immediately terminate
this Agreement, with termination to be effective upon delivery of written notice of
termination.
9.2 Tenmination b, CITY.
9.2.1 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 13.1 below, CITY
may terminate this Agreement effective as of the last day of the required notice period.
9.2.2 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
1RU Agreement that the CITY elects to terminate. If the CITY terminates, it will use
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commercially reasonable efforts to relocate the 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.
9.3 Termination by CUSTOMER.
9.3.1 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 use 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 effective as of the last day of the 30
day period.
9.3.2 Failure to Meet SpecificationsJNon-Acceptance.
i) If at any time following the completion and acceptance of
the acceptance test, as described in Section 27, 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 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 the affected Short Form IRU Agreement(s) by notice delivered within 15
days following the last day of the 90 day period:
ii) If CUSTOMER delivers notice to the CITY within seven
(7) days of completion of the acceptance test described in Section 27 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 day 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 Section 9.3.4 below, in which case the terms of
Section 9.3.4 and Section 4.7 shall control.
9.3.3 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 defined below in Section 9.4.4.
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9.3,4 Continued Total Service Interruptions. If there shall occur, within
any period of 12 consecutive months, five Total Service Interruptions, as that term is
defined in the Short Form IRU Agreement ("Continued Total Service Interruptions")
caused by factors within the CITY's reasonable control, CUSTOMER may, upon the
occurrence of the fifth Total Service Interruption that is within the CITY's reasonable
control, immediately terminate the Short Form IRU Agreement affected by the Continued
Total Service Interruptions.
9.3.5 Default by City. If the CITY is in breach of any provision of this
Agreement for a reason other than as described in this Section 9.3 above, and such breach
is not cured within the time periods described in Section 13.2 below, CUSTOMER may
terminate this Agreement effective as of the first day following the cure period.
9.4 Rights upon Termination.
9.4.1 If this Agreement or any Short Form IRU Agreement is terminated
by either Party in accordance with the terms of Section 9.1 or 9.2.2, 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 the
CUSTOMER's sole and exclusive remedy in the event of a termination pursuant to
Section 9.1 or Section 9.2.2.
9.4.2 If this Agreement is terminated by the CITY in accordance with
the terms of Section 9.2.1, 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 from uncured
breaches.
9.4.3 If this Agreement is terminated by CUSTOMER in accordance
with the terms of Section 9.3.1, 9.3.2(i), 9.3.4, or 9.3:5, 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 9.3.2(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 9.3.1, 9.3.2(i), 9.3.2(ii), 9.3.4,
and 9.3.5, except that any Credit Allowances earned pursuant to clause 4.7 shall be
applicable to fees owed by CUSTOMER.
9.4.4 If this Agreement is terminated by CUSTOMER in accordance
with the terms of Section 9.3.3, 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
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Charge" or "TAC". The TAC shall be included in the "Termination Settlement Charges"
or "TSC", as defined in 9.4.5 below.
9.4.5 Furthermore, in the event CUSTOMER elects, to terminate any
Short Form IRU Agreement under the terms of the provisions of Section 9.3.3, 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.
9.4.6 CITY shall transfer the ownership of the demarcation patch panels
at the end of the Term. The CITY shall remove the Customer System from the 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.
10. ADMINISTRATION OF THIS AGREEMENT.
10.1 Each parry shall designate a representative who is authorized to act on the
respective Party's behalf with respect to those matters delegated to the authorized
representatives. The CITY's representative shall be Ali Nour, or such other person
designated in writing by the City Administrator. CUSTOMER shall advise CITY of its
designated representative by providing written notice to the CITY within thirty (30) days
of the Effective Date of this Agreement. Each Party shall have the right to designate
alternate representatives and to change its representative or alternate by written notice to
the other Party.
10.2 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.
10.3 Any expenses incurred by the authorized representative in connection with
his/her duties shall be paid by the Party he/she represents.
10.4 The authorized representative shall have no authority to modify this
Agreement.
11
11. INDEMNIFICATION AND LIMITATION OF LIABILITY.
11.1 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.
11.2 Except for the Credit Allowance for Total Service Interruptions, as
described in the Short Fonn 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.
11.3 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. 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
1.2
consequential damages in any agreement with any third party shall be subject to any
and all regulatory or other legal limitations, as well as applicable tariffs.
12. CONFIDENTIALITY.
12.1 Confidential Status; Disclosure of Information. All data, floor plans,
designs, maps, surveys, drawings, models, reports, logs, documents, materials or other
information developed or created by CUSTOMER, received by CUSTOMER, or
provided to CUSTOMER in connection with this Agreement ("Confidential
Information") are deemed confidential and shall not be disclosed by CUSTOMER to any
third party without CITY's prior written consent. CITY shall grant consent if disclosure
is legally required. All Confidential Information shall be returned to CITY upon the
termination of this Agreement. CUSTOMER's covenant under this section shall survive
the termination of this Agreement. CITY may disclose to third parties any Confidential
Information at its sole discretion.
12.2 CUSTOMER' S obligation not to disclose any Confidential Information
shall not extend to information that:
12.2.1 Was in the possession of or was rightfully known by, the
CUSTOMER without an obligation to maintain its confidentiality prior to receipt from
CITY;
12.2.2 Is or becomes generally known to the public without violation of
this Agreement;
12.2.3 Is obtained without an obligation of confidentiality by the
CUSTOMER in good faith from a third party having the right to disclose it without an
obligation of confidentiality; or
12.2.4 Information which is required to be disclosed pursuant to any court
order or directive having the force of law.
12.3 The provisions of this section shall survive the termination of this
Agreement.
13. DEFAULT.
13.1 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
13
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.
13.2 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 9.3.1, 9.3.2, or 9.3.4, 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 thereof from CUSTOMER (as described in Section 9.3 and herein),
CUSTOMER shall have the right to terminate this Agreement or the affected Short
Form IRU Agreement.
14. 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
the other Party and shall exercise due diligence to perform its obligations upon the
removal or termination of the uncontrollable force.
15. ASSIGNMENT.
15.1 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.
15.2 In the event of any assignment or Transfer by either Party undertaken
pursuant to Section 15.1 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,
14
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.
16. SUBCONTRACTING BY CITY.
CITY may subcontract any or all of the maintenance, emergency or construction
services required of it under this Agreement, provided that CITY shall require the
subcontractor(s) to perform in accordance with the requirements and procedures set forth
herein. The use of any such subcontractor shall not relieve CITY of any of its obligations
hereunder.
17. WAIVER.
Any waiver at any time by either Party of its rights with respect to a default under
this Agreement, or with respect to any other matter arising in connection with this
Agreement, shall not be deemed a waiver with respect to a subsequent default or other
matter.
18. 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.
19. NO THIlZD-PARTY BENEFICIARIES.
This Agreement shall not be construed to create rights in, or to grant remedies to,
any third parry as a beneficiary to this Agreement or of any duty, obligation or
undertaking established herein.
20. NOTICES.
Any written notice under this agreement shall be deemed properly given if sent by
registered or certified mail, postage prepaid, return receipt requested, or by nationally
recognized overnight delivery service 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.
CITY: City of Vernon
Attn: Ali R Nour
Engineering Manager
4305 Santa Fe Avenue
Vernon, CA 90058-0805
15
CUSTOMER: PWP Industries, Inc.
Attn: John Morrison
V.P. — Information Technology
5500 Boyle Avenue
Vernon, CA 90058
21. 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 a court
of competent jurisdiction in the County of Los Angeles, California.
22. 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 the CUSTOMER's requirements or that the services will prevent unauthorized
access by third parties.
23. USE OF THE CUSTOMER SYSTEM
CUSTOMER shall have exclusive control over and responsibility for the
installation, enabling, configuration, operation and monitoring of voice, data, and/or other
video services across the Customer System, including, without limitation, CUSTOMER
premise and nodal electronics, and any other electronics, hardware or software on the
CUSTOMER's side of the Demarcation Points.
24. 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.
25. 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 for
administrative purposes, and each Short Form IRU Agreement shall be attached
chronologically as part of Exhibit "A" to this Agreement and thereby made a part of this
Agreement.
10
26. 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.
27. 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 within such thirty (30) day period, then the
Short Form IRU Agreement 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 conform to the requirements set forth in the final acceptance
testing plan within seven (7) days of 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, the
terms of Section 9.3.2(ii) and the remedies described in Section 9.4.3 above shall apply.
28. BILLING AND PAYMENT.
28.1 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 on a quarterly basis pursuant to
the terms of the appropriate Short Form IRU Agreement. If CUSTOMER requests
additional connections, disconnections or other services, CITY shall invoice
CUSTOMER within 30 days of completing such requested service.
b. CUSTOMER shall submit payment in full within thirty (30) days
after receipt of the CITY's invoice.
17
29. TITLE.
CUSTOMER agrees that all right, title, and interest in the Cable System and 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 the Customer Infrastructure 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.
30. 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. CUSTOMER represents
that in entering into this Agreement it has not relied on any previous representations or
understandings of any kind or nature.
31. 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 9, 11, 21, 22, 29, and 30 shall survive the termination of this Agreement.
32. AMENDMENT.
This Agreement may not be amended except pursuant to a written instrument
signed by each of the Parties.
33. CONFLICTING TERMS.
In case of conflict between this Agreement and any Short Form IRU Agreement,
the terms and conditions of this Agreement shall control.
34. HEADINGS:
Section headings used in this Agreement are for convenience of reference only
and shall not affect the interpretation or construction of the Agreement.
35. 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
18
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.
[Signatures begin on the next page]
19
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the day and year first
above written.
ATTEST:
City Clerk
Willard G. Yamaguchi
APPROVED AS TO FORM:
Laurence S. Weiner, City Attorney
20
CITY OF VERNON
Mayor /Mayor Pro-Tem
CUSTOMER
�1M
Print Name: V� �"
Print Name -
Title:
EXHIBIT A
EXHIBIT "A"
ALL SHORT FORM IRU AGREEMENTS
EXHIBIT "A"
SHORT FORM IRU-06.1
Indefeasible Right of Use Agreement
THIS SHORT FORM IRU-06.1 INDEFEASIBLE RIGHT OF USE AGREEMENT
(herein referred to as "IRU-06.1 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 29th day of _March , 2010 (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 PWP INDUSTRIES, INC.
(hereinafter referred to as "CUSTOMER"), a California corporation with offices at 5500
Boyle Avenue, Vernon, California 90058, which are sometimes referred to individually
as "Party" and collectively as "Parties." Upon execution, this IRU-06.1 Agreement shall
become a part of the master agreement entitled Optical Fiber Use Agreement
("Agreement") dated __, 20 . Each term used in this IRU-06.1
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-
06.1 Agreement, and govern and control each Party's rights and obligations hereunder.
RECITALS
WHEREAS, the CITY has constructed a fiber optic infrastructure within the
jurisdictional boundaries of the CITY, known as the "Cable System," in the general route
set forth in Exhibit G "Map of Cable System'; and .
WHEREAS, title to the Cable System is vested exclusively in the CITY; and
WHEREAS, the CITY grants an indefeasible right of use to various commercial
users in the City to use certain optical dark fiber strands and associated facilities in the
Cable System for voice, data, and other video services; and
WHEREAS, the CITY desires to grant to CUSTOMER an indefeasible right to
use certain optical dark fiber strands and associated facilities for CUSTOMER's
exclusive use; and
WHEREAS, CUSTOMER desires to lease roughly 1.66 fiber strand miles of
certain Cable System components between CUSTOMER's buildings located at 5500
Boyle Avenue and 3751 Seville Avenue (referred to individually as "Customer Facility"
and collectively as "Customer Facilities").
THEREFORE, in consideration of the mutual agreements herein, the Parties agree
as follows:
Recitals. The Parties to this IRU-06.1 Agreement agree and attest to the truth and
accuracy of the recitals set forth above, which are hereby incorporated and made a
part of this IRU-06.1 Agreement by this reference.
2. Grant of Indefeasible Right of Use. The CITY hereby grants to CUSTOMER an
Indefeasible Right of Use (1RU) of the following Cable System components:
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Fiber strand numbers 13 and 14 of the Cable System terminating in each
Customer Facility and dedicated for CUSTOMER's exclusive use, as
identified in IRU-06.1-Schedule—E.
The above -described individual Cable System components collectively shall be
the Customer System for this IRU-06.1 Agreement. The Customer System shall
be inclusive of the above described Cable System components between and
including the CITY'S sides of the originating and terminating Demarcation Points
at the Customer Facilities. The Customer System does not include any conduit,
fiber, premises, buildings, boxes, or other equipment or facilities on the
CUSTOMEWs side of the Demarcation Points.
Project Schedule. The CITY will construct and install any necessary Backbone
Extensions or Service Drops as may be necessary to provide the Customer System
for CUSTOMER'S use in accordance with the terms of the Agreement and this
IRU-06.1 Agreement. The CITY shall use commercially reasonable efforts to
comply with the project schedule that is attached hereto as IRU-06.1-Schedule-F
or as otherwise determined by the Parties in writing; 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 deliver written notice of
intent to terminate to CITY within five (5) days following the CITY's failure to
meet the Construction End Date, as set forth in Schedule-F or as otherwise
determined by the Parties in writing. If the CITY fails to complete construction
within 10 days following receipt of CUSTOMER's notice, CUSTOMER shall
have the right to terminate this ][FLU-06.1 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 Section
27 of the Agreement, the portion of the Cable System covered by this IRU-06.1
Agreement as meeting the specifications set forth in the attached IRU-06.1-
Schedule-D, determined in accordance with the acceptance testing plan as
described in Section 27 of the Agreement (the "Commencement Date"). The
length of the Term for this IRU-06.1 shall be three years from the
Commencement Date.
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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 the Customer Facilities,
essentially the construction of a Service Drop; 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 Facilities;
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 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-06.1 Agreement.
6. Costs and Fees. An invoice setting forth a summary of the transactions under the
IRU-06.1 Agreement is attached hereto as IRU-06.1-Schedule-B. The payments
and charges shall be in accordance with Section 28 of the Agreement and as
specifically identified in the following subparagraphs:
6.1 CUSTOMER shall pay a one time construction and installation charge of
(waived
6.2 CUSTOMER shall pay quarterly IRU fee payments of $2,946.00 based on
a monthly base rate of $982.00 with the first quarterly payment due to the
CITY upon CUSTOMER execution of this IRU-06.1 Agreement. The
first payment shall cover the period April 8, 2010 through June 30, 2010
and shall be prorated accordingly.
-3-
6.3 If CUSTOMER requests additional connection or disconnection services
in writing, CUSTOMER shall pay for each additional service the fees
stated in Section 2.2 of IRU-06.1-Schedule—C. 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.
6.4 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-06.1 Agreement are set forth in IRU-06.1-
Schedule-A hereto and are subject to increase at a rate not to exceed the
cumulative increase in the Consumer Price Index (as defined below) since
the last rate change.
6.5 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-U), published by the United States
Department of Labor, Bureau of Labor Statistics (1982-84=100). The
recurring fee may be increased at any time or after the yearly anniversary
of the Effective Date of this IRU-06.1 Agreement by the cumulative
increase, if any, in the CPI-U for the Los Angeles -Riverside -Orange
County, CA area 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.
For any Total Service Interruptions, the CITY will grant CUSTOMER a "Credit
Allowance" to be credited against the CUSTOMER's monthly charges. Credit
Allowances will be calculated in one (1) hour increments, with partial hours
rounded up to a full hour. Each hour of Total Service Interruption is valued at
$1.36 (equal to the monthly charge, $982, divided by the total number of hours in
an average month, 120). A "Total Service Interruption" will be deemed to have
occurred only if:
7.1 Service becomes unusable to CUSTOMER as a result of the 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;
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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 Scheduled maintenance or alteration, or the 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's invoice 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.
8. This IRU-06.1 Agreement, including all Schedules and Exhibits which are
attached hereto, are hereby incorporated into the Agreement, dated
as Exhibit "A" to the Agreement. The Agreement, this IRU-06.1
Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement
between the Parties with respect to the subject matter hereof.
9. This IRU-06.1 Agreement cannot be modified except by written instrument
signed by both Parties.
[Signatures begin on the next page]
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IN WITNESS WHEREOF the Parties have executed and delivered this IRU-06.1
Agreement effective the day and year first above written:
ATTEST:
City Clerk
Willard G. Yamaguchi
APPROVED AS TO FORM:
Laurence S. Weiner, City Attorney
-6-
CITY OF VERNON
UM
Mayor or Mayor Pro -Tern
CUSTOMER
By:
Print Name:
Title:
y:
Print Name:
Title:-
IRU-06.1-Schedule-A
MAINTENANCE AND REPAIR RATES
Charges for Time and Material Service
Where applicable, the CITY shall perform maintenance or installation service at
the rates established below. Unless specifically authorized by the CUSTOMER in
writing, no scheduled maintenance will be performed outside of normal working hours.
Normal Working Hours
7:00 a.m. to 3:30 p.m.,
Monday through Friday (except for
CITY observed holidays)
Overtime Hours
6:00 a.m. to 7:00 a.m., and
3:30 p.m. to 12:00 midnight,
Monday through Friday (except for
CITY observed holidays)
Holiday Hours and Special Call Out
Any time during a CITY observed holiday
or any time during Saturday or Sunday, or
any time between the hours of 12:00 Midnight
and 6:00 a.m., Monday through Friday
Hourly Rate
$ 85.00
Hourly Rate
$ 105.00
Hourly Rate
$ 130.00
Charges will be made for travel time to the location where maintenance is to be
performed. 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
Evil
IRU-06.1-Schedule-B
SAMPLE QUARTERLY INVOICE
This sample IRU-06.1 Agreement Invoice provides a summary of the quarterly
charges under this IRU-06.1 Agreement at the time of execution.
Customer Facilities: 5500 Boyle Avenue and 3751 Seville Avenue, Vernon, CA
Approximate Length of Fiber Optic Strand: (8,800' or 1.66 Fiber strand miles)
ITEM . Description IRU Fees
Quarterly IRU-06.1 Base Charges $ 2 946.00
(April 2010 through June 2010)
($982.00/month x 3 months = $2,946.00)
(2) Fiber strands x 1.66 strand miles x $180/mile = $600.00
(4) Fiber ports x $50/port = $200.00
(2) Fiber Strands x 1.66 strand miles x $55/mile = $182.00
$982.00
Note: The length of strand miles has been rounded to two decimal places in the above -
stated figures, which explains any minor discrepancies in the calculation of the
total quarterly fee.
Total Quarterly IRU-06.1 Agreement Fees
$ 2,946.00
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.
B-1
IRV-06.1-Schedule-C
DARK FIBER PRICING
1.0 FEES:
1.2 1.1 Monthly Dark Fiber Services Fees:
CUSTOMER shall pay the CITY in quarterly installments for the use of the first
two Fiber strands. The total quarterly charge for the City's services under this IRU-06.1
Agreement are $2,946,00. That amount is calculated on the basis of the following
rounded costs:
A. $ 180.00 per Fiber strand mile (1.66) per month (3) for the first
two Fiber strands (2); plus
B. $ 55.00 per Fiber strand mile (1.66) per month (3) for construction
and maintenance fees for the first two Fiber strands (2); plus
C. $ 50.00 per Fiber port (4) per month (3).
2.0 Additional Services and Connection/Disconnection/Rearran ement Fees
2.1. General
If the CUSTOMER requests the use of additional fiber strands, the CITY will
charge CUSTOMER an additional $ 120.00 use fee per Fiber strand mile per month per
each additional fiber. The Parties shall amend this Agreement in writing upon the
CUSTOMER's request to add additional Fibers.
2.2 Building Service
If the CUSTOMER requests the use of additional fiber strands or requests the
deletion of the use of certain fibers, the CITY will charge CUSTOMER a one-time
service connection (or deletion) fee for the initial establishment and cutover of a
CUSTOMER'S point-to-point or distribution Cable System (ring or segment). The
following one-time fees apply if the CUSTOMER requests the addition or deletion of
building service to/from a CUSTOMER point-to-point or distribution Cable System and
for all building service connections:
A. Service Addition:
Fiber Count Char
Each $400
B. Service Deletion:
Fiber Count char,
$200
C-2
2.3 Major Requests by CUSTOMER
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 in
accordance with the rates set forth in IRU-06.1-Schedule-A plus a fifteen (15) percent
overhead charge. The parties shall agree in writing before proceeding with such work.
C-3
HW-06.1-Schedule-D
CUSTOMER 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 stated herein.
2. Design Criteria
The CITY will endeavor to keep the number of splices in a span to a minimum.
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 IRU-06.1 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 IRU-06.1 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, 1310nm
Maximum attenuation, 1550nm
Cladding diameter
Core diameter
Cutoff Wavelength
Zero dispersion wavelength
Maximum dispersion (1285-1330 nm)
3.2 Splice Loss
0.5 dB/Km
0.4 dB/Km
125 +/- 3 um
8.3 um
1250 +/- 100 nm
1310 +/- 12 nm
3.5 ps/ (nm-km)
Splice loss on CITY cables will average less than or equal to 0.15 dB for all
splices the CITY makes under this IRU-06.1 Agreement. The 0.15 dB splice average
will only apply to splices between cables of identical physical and optical properties
D-1
(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 1RU-06.1
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 system
C = Connector/pigtail loss. The attenuation contribution of each pigtail with
associated connector is considered to be 1.0 dB comprised of 0.85 dB
connector loss and 0.15 dB splice loss (pigtail to OSP cable splice).
Therefore, C = 1.0 dB if the span is connectorized on one end and 2.0 dB if
connectorized on both ends.
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 a request by the CUSTOMER, to ensure that the
attenuation values conform to the Specifications set forth in this 1RU-06.1-Schedule—D.
AnalogVideo
ideo
The CITY will not warrant CUSTOMER analog video transmission within the
foregoing system parameters.
D-2
1RU-06.1-Schedule-E
MAP OF CUSTOMER SYSTEM
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IRU-06.1-Schedule-F
Construction Start Date:
Construction Completion Date:
System Testing:
PROJECT SCHEDULE
March 30, 2010
April 5, 2010
April 7, 2010
Available for Customer System Use: April 8, 2010
IRU-06.1-Schedule-G
CITY' S CABLE SYSTEM MAP
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LIGHT & POWER DEPARTMENT
LOCA71Dk SYSTEM
FlBER OPTIC SYSTEM
VERNON BACKBONE
o ism FOB 1"m x ie 10 M GAS OPTICAL NETWORK
NO. REVISION DATE APP D CHK BY E—S4T-109-0
EXHIBIT B
EXHIBIT "B"
TROUBLE -REPORTING
PROCEDURE
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 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, and 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.
s — .
March 30, 2010
PWP Industries, Inc.
Attn: John Morrison
V.P. — Information Technology
5500 Boyle Avenue
Vernon, CA 90058
Re: Optical Fiber Use Agreement and Short Form IRU-06.1 Indefeasible Right of Use
Agreement
Dear Mr. Morrison:
Transmitted herewith is one each of the original fully executed agreements as referenced above,
approved by City Council on March 29, 2010, through Resolution No. 2010-44.
If you have any questions regarding this matter, please call Mr. Ali Nour, at (323) 583-8811 ext.
316.
Very ly yours,
WILLA D G. YAM G CHI
City Clerk
WY:dj
c: Donal O'Callaghan
Ali Nour
Resolution No. 2010-44
Agreement File No. 10-023
E,i(cfusivefy Industr&f
OPTICAL FIBER USE AGREEMENT
By and Between
THE CITY OF VERNON
and
PWP INDUSTRIES, INC.
TABLE OF CONTENTS
l. DEFINITIONS .......... ........................ .................................................................... .......... 2
2.
TEI�y��------------------'�-----'--.'-------.^------'
4
3'
TAXES ........................................................ ............ ........................................................
*
4.
MAINTENANCE AND CREDIT ALLOWANCE .............................................................
*
5.
FREEDOM OF ACTION ...................................................................................................
o
0.
COMPLIANCE WITH LAWS ...........................................................................................
6
7.
RELOCATION OF THE ------------.-------------.M
0.
CUSTOMER COVENANTS ..............................................................................................
/
0.
EVENTS OF TERMINATION AND EFFECT O�
TERMINATION . ________________/ _____________-------..0
10.
ADMINISTRATION OF THIS ..................... .......
................................ ll
U.
INDEMNIFICATION AND LIMITATION OF --------------l2
l�1
13
�---------------------------------''
13.
3�fIPA�J�.7.----.----------------------------------'
l�
14.
FORCE M[AJEURDl---------........................................................
.................... l4
15.
ASSIGNMENT ...................................................--------------------
l4
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SUBCONTRACTING BY CITY ........................................... .........................................
l5
17,
��/�IlJEIR.----------------------------------------
l5
10.
RELATIONSHIP NOT PARTNERSHIP Om»AN AGENCY .
....................................... l5
19.
NO THIRD -PARTY BENEFICIARIES ..----------------_-------.
l5
30.
]���7[K�ES.----------------------------_----------..
l�
2L
GOVERNING LAW AND FORUM SELECTION. -------------.-----l8
22.
NO.---________________________^_______
WARRANTIES
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23.
USE OFTHE CUSTOMER SYSTEM .............................................................................
l6
34.
I�~�DXJ���-----'----------------_----.~—,----------..
ld
25.
P�d03'S O�/ .C.-------------------------------
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COUNTERPARTS --------.--------------------^------'
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27.
/�K�K�E3r[/�NCEll�SIlN��----------------------------.---
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20.
D�I[LIN0|/�2�D P/�Y]�UE2NT-------------------------------
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TITLE -------------__—_--_—____________________..
lQ
` 30.
ENTIRE `.------.-------------------------''
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31.
SURVIVAL OFTERMS ..................................................................................................
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32.
AMENDMENT ---.—^--------------------------------
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33.
IK�R��S .---------_______________________
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34.
�8E����U�K�S .--------------------------------------..
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35.
`�.------------------------------------
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EXHIBIT A: Short Form IRIJ Agreements
EXHIBIT B: Trouble Reporting Procedure
l
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 29 th
day of March , 2010 ("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 PWP INDUSTRIES, INC. (hereinafter referred to as
"CUSTOMER"), a California corporation, having an office at 5500 Boyle Avenue,
Vernon, California 90058, and which are sometimes referred to individually as "Party"
and collectively as "Parties."
RECITALS
WHEREAS, the CITY has an existing optical fiber cable system or "Cable
System" (as hereinafter defined) throughout the City of Vernon, California; and
WHEREAS, the CITY has excess inactivated 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 long term relationship between the Parties
hereto and for each such project; and
WHEREAS, the Parties have agreed to enter into separate Short Form IRU
Agreement(s) as hereinafter defined.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the Parties do hereby agree as follows:
1. DEFINITIONS.
1.1 For the purposes of this Agreement and the Short Form IRU Agreements,
the following terms, whether in the singular or in the plural, shall have the meaning
specified below:
a. Backbone: The physical location of the Cable System.
2
b. Backbone Extension: A new addition to the Backbone that would
benefit potential lessees and that the CITY will own and construct. In general, a
Backbone Extension travels to a location that many other potential lessees also desire; it
does not travel to a location that is solely used by the CUSTOMER, which constitutes a
Service Drop.
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.
d. Customer Infrastructure: Any conduit, fiber, premises, buildings,
boxes, or other equipment or facilities belonging to CUSTOMER.
e. Customer System: The optical fiber strands, innerduct, conduit,
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).
f. Demarcation Points: The specific points where the Cable System
connects to the Customer Infrastructure and ownership of such infrastructure changes.
The Demarcation Points are marked by the City -furnished patch panels in each of the
relevant Customer facilities.
g, False Maintenance Call A request by the CUSTOMER for
maintenance with respect to the Customer System to which the CITY responds, where the
CITY, in its sole discretion, later determines that the problem leading to the maintenance
request resulted from deficiencies in the Customer Infrastructure, not the Cable System.
h. Indefeasible Right of Use: The CUSTOMER's right to use a
certain portion of the Cable System and Customer System pursuant to this Agreement
and any Short Form IRU Agreements.
i. Service Drop: An extension of the Cable System from the
Backbone to a Demarcation Point in the Customer's Facilities, desired only by the
CUSTOMER, paid for by the CUSTOMER, and used only by CUSTOMER.
j. Short Form IRU Agreement: An agreement between the CITY and
CUSTOMER which identifies the specific optical fiber strands and facilities to be
provided to CUSTOMER and which sets 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.
k. Specifications: The technical specifications described further in
Section 4.2 of this Agreement.
1. Term: The duration of this Agreement as described further in
Section 2 of this Agreement.
2. TERM.
2.1 Unless terminated sooner in accordance with the terms and conditions of
this Agreement, the duration of this Agreement is three (3) years (hereinafter referred to
as the "Term"), commencing on the date of this Agreement. 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. Notwithstanding any provision in the
Short Forum IRU Agreement to the contrary, 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, construction, or provision of a Service Drop and
the Customer System. The CUSTOMER shall also pay all Taxes levied upon the sale,
installation, use, construction or provision of any equipment provided hereunder, as
well as any Taxes assessed against it for the conduct of its business, during the Term of
this Agreement.
4. MAINTENANCE AND CREDIT ALLOWANCE.
4.1 All scheduled and emergency maintenance to and repair of the Cable
System or any facilities through which the Cable System passes, shall be performed by
or under the direction of the CITY at CITY's sole cost, except as otherwise provided
below in connection with services provided at CUSTOMER's request. If such work
would materially impact the CUSTOMER's use of the Cable System or Customer
System, the CITY shall provide CUSTOMER with reasonable notice of scheduled
maintenance.
4.2 Except as otherwise provided in this Agreement or in a 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
El
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.
4.3 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, pursuant to the procedures set forth in Exhibit B, 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 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.
4.4 Scheduled Maintenance.
4A.1 CITY's Option. The CITY from time to time may schedule and
perform periodic maintenance to the Cable System or Customer System, including work
to maintain dark fibers within Specification, at CITY's sole cost. If 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
generally limit adverse user impacts.
4.4.2 CUSTOMER's Request. The CITY will perform changes or
modifications to the Customer System at CUSTOMER'S request. CUSTOMER may
also request scheduled maintenance by delivering to the CITY a statement of work
detailing the service CUSTOMER desires to have performed, including a proposed 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, as adjusted by
the City. The adjustment in rates shall be in the discretion of the City, but shall not
exceed the cumulative increase in the CPI-U for the Los Angeles -Riverside -Orange
County, CA area between the effective date of the Short Form IRU Agreement and the
date of adjustment.
4.5 CUSTOMER is responsible for all maintenance and repairs on
CUSTOMER's side of the Demarcation Points.
4.6 Access to CUSTOMER's property and Customer System. CUSTOMER
agrees to provide CITY, its officers, employees, agents, representatives, and
contractors access to Customer's Infrastructure and CUSTOMER's property when
reasonably necessary for repairs to the Customer System and the Cable System.
Except in the case of an emergency, CITY shall provide CUSTOMER with forty-eight
(48) hours advanced notice of any required access to Customer's Infrastructure.
4.7 Credit Allowance. In the event of Total Service Interruption as defined in
the Short Form IRU Agreement, CUSTOMER shall be entitled to the Credit
Allowance described in the applicable Short Form IlLU 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 CITY may elect or be
required to relocate all or a portion of the Cable System or the Customer System, or both.
As between the CITY and the CUSTOMER, 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 pursuant to
a CUSTOMER request). The CITY shall use 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 reasonably
practicable of any other relocation.
8. CUSTOMER COVENANTS.
8.1 CUSTOMER shall not interfere in any manner with the existence and
operation of any and all public and private rights -of -way, sanitary sewers, water mains,
storm drains, gas mains, poles, aerial and underground electric and telephone wires,
electroliers, cable television, and other telecommunications, utility, and municipal
property without the express written approval of the owner or owners of the affected
property or properties. CUSTOMER shall not do or permit anything to be done by
anyone under its direct control or doing work on its behalf. (i) within the public right-of-
way; (ii) that would in any way obstruct or interfere with the rights of, or injure, any
person located within the public right-of-way, or (iii) use the public right-of-way for any
improper or unlawful purpose. Notwithstanding the foregoing, this shall not be construed
to prohibit CUSTOMER from installing infrastructure in the public right-of-way with the
prior written consent of the CITY in accordance with this Agreement.
8.2 CUSTOMER shall keep all parts of the Customer System free of any liens
that may be created or which may attach as the result of the acts or omissions of
CUSTOMER, its employees, subcontractors or agents. If any such lien is filed,
CUSTOMER shall indemnify and hold harmless CITY from any and all costs to remove
such lien including but not limited to reasonable attorneys' fees.
8.3 CUSTOMER shall not be permitted to pledge its rights under this
Agreement as an asset for purposes of obtaining financing without the prior written
consent of the CITY. The CITY reserves the right to impose conditions on such consent,
including, without limitation, the requirement that the entity to whom this Agreement
would be pledged comply with the provisions of Section 15 ("Assignment').
CUSTOMER may not, under any circumstances, pledge the actual dark fiber or Customer
System as an asset to anyone for any purpose. The Customer System is public property
owned by the CITY and shall not be pledged to any party.
8.4 CUSTOMER shall not, in connection with its use of the Customer System,
commit, cause, maintain or permit, nor suffer or allow to be committed, caused,
maintained or permitted by anyone under its direct control or doing work on its behalf,
any waste, abuse or destructive use within the public right-of-way, nor any public or
private nuisance, nor any other act or thing which may disturb the quiet enjoyment of any
other person lawfully using the public right-of-way.
8.5 CUSTOMER shall be solely and fully responsible for the reporting of all
hazardous materials releases to the appropriate agencies, when such releases are caused
by, or result from, CUSTOMER's activities or those of anyone under its direct control or
doing work on its behalf. CUSTOMER shall take all necessary precautions to prevent
any hazardous materials used by CUSTOMER or by anyone under its direct control or
doing work on its behalf from entering into any storm or sewage drain system or from
being released within the public right-of-way.
7
9. EVENTS OF TERMINATION AND EFFECT OF TERMINATION.
9.1 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 at least 30 days' prior written notice to the other Parry,
to terminate the affected Short Form IRU Agreement (and this Agreement if all Short
Form IRU Agreements are affected) upon the effective date of the taking.
b. Damage 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.
9.2 Termination by CITY.
9.2.1 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 13.1 below, CITY
may terminate this Agreement effective as of the last day of the required notice period.
9.2.2 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
N.
commercially reasonable efforts to relocate the 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.
9.3 Termination by CUSTOMER.
9.3.1 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 use 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 effective as of the last day of the 30
day period.
9.3.2 Failure to Meet Specifications/Non-Acceptance.
i) If at any time following the completion and acceptance of
the acceptance test, as described in Section 27, 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 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 the affected Short Form IRU Agreement(s) by notice delivered within 15
days following the last day of the 90 day period.
ii) If CUSTOMER delivers notice to the CITY within seven
(7) days of completion of the acceptance test described in Section 27 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 day 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 Section 9.3.4 below, in which case the terms of
Section 9.3.4 and Section 4.7 shall control.
9.3.3 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 defined below in Section 9.4.4.
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9.3.4 Continued Total Service Interruptions. If there shall occur, within
any period of 12 consecutive months, five Total Service Interruptions, as that term is
defined in the Short Form IRU Agreement ("Continued Total Service Interruptions")
caused by factors within the CITY's reasonable control, CUSTOMER may, upon the
occurrence of the fifth Total Service Interruption that is within the CITY's reasonable
control, immediately terminate the Short Form IRU Agreement affected by the Continued
Total Service Interruptions.
9.3.5 Default by City. If the CITY is in breach of any provision of this
Agreement for a reason other than as described in this Section 9.3 above, and such breach
is not cured within the time periods described in Section 13.2 below, CUSTOMER may
terminate this Agreement effective as of the first day following the cure period.
9.4 Rights upon Termination.
9.4.1 If this Agreement or any Short Form IRU Agreement is terminated
by either Party in accordance with the terms of Section 9.1 or 9.2.2, 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 the
CUSTOMER's sole and exclusive remedy in the event of a termination pursuant to
Section 9.1 or Section 9.2.2.
9.4.2 If this Agreement is terminated by the CITY in accordance with
the terms of Section 9.2.1, 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 from uncured
breaches.
9.4.3 If this Agreement is terminated by CUSTOMER in accordance
with the terms of Section 9.3.1, 9.3.2(i), 9.3.4, or 9.3.5, 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 9.3.2(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 9.3.1, 9.3.2(i), 9.3.2(ii), 9.3.4,
and 9.3.5, except that any Credit Allowances earned pursuant to clause 4.7 shall be
applicable to fees owed by CUSTOMER.
9.4.4 If this Agreement is terminated by CUSTOMER in accordance
with the terms of Section 9.3.3, 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
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Charge" or "TAC". The TAC shall be included in the "Termination Settlement Charges"
or "TSC", as defined in 9.4.5 below.
9.4, 5 Furthermore, in the event CUSTOMER elects to terminate any
Short Form IRU Agreement under the terms of the provisions of Section 9,3.3, 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 +'/z multiplied by the remaining payments due under original Short
Form IRU Agreement.
9.4.6 CITY shall transfer the ownership of the demarcation patch panels
at the end of the Term. The CITY shall remove the Customer System from the 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.
10. ADMINISTRATION OF THIS AGREEMENT.
10.1 Each party shall designate a representative who is authorized to act on the
respective Party's behalf with respect to those matters delegated to the authorized
representatives. The CITY's representative shall be Ali Nour, or such other person
designated in writing by the City Administrator. CUSTOMER shall advise CITY of its
designated representative by providing written notice to the CITY within thirty (30) days
of the Effective Date of this Agreement. Each Party shall have the right to designate
alternate representatives and to change its representative or alternate by written notice to
the other Party.
10.2 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.
10.3 Any expenses incurred by the authorized representative in connection with
his/her duties shall be paid by the Party he/she represents.
10.4 The authorized representative shall have no authority to modify this
Agreement.
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11. INDEMNIFICATION AND LIIVIITATION OF LIABILITY.
11.1 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.
11.2 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.
11.3 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. 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
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consequential damages in any agreement with any third parry shall be subject to any
and all regulatory or other legal limitations, as well as applicable tariffs.
12. CONFIDENTIALITY.
12.1 Confidential Status; Disclosure of Information. All data, floor plans,
designs, maps, surveys, drawings, models, reports, logs, documents, materials or other
information developed or created by CUSTOMER, received by CUSTOMER, or
provided to CUSTOMER in connection with this Agreement ("Confidential
Information") are deemed confidential and shall not be disclosed by CUSTOMER to any
third party without CITY's prior written consent. CITY shall grant consent if disclosure
is legally required. All Confidential Information shall be returned to CITY upon the
termination of this Agreement. CUSTOMER's covenant under this section shall survive
the termination of this Agreement. CITY may disclose to third parties any Confidential
Information at its sole discretion.
12.2 CUSTOMER'S obligation not to disclose any Confidential Information
shall not extend to information that:
12.2.1 Was in the possession of, or was rightfully known by, the
CUSTOMER without an obligation to maintain its confidentiality prior to receipt from
CITY;
12.2.2 Is or becomes generally known to the public without violation of
this Agreement;
12.2.3 Is obtained without an obligation of confidentiality by the
CUSTOMER in good faith from a third party having the right to disclose it without an
obligation of confidentiality; or
12.2.4 Information which is required to be disclosed pursuant to any court
order or directive having the force of law.
12.3 The provisions of this section shall survive the termination of this
Agreement.
13. DEFAULT.
13.1 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
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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.
13.2 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 9.3.1, 9.3.2, or 9.3.4, 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 thereof from CUSTOMER (as described in Section 9.3 and herein),
CUSTOMER shall have the right to terminate this Agreement or the affected Short
Form IRU Agreement.
14. 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 Parry could not reasonably have been expected to avoid
and by exercise of due diligence has been unable to overcome. Either Party rendered
unable to fulfill any of its obligations under this Agreement by reason of an
uncontrollable force, shall give written notice within five (5) business days of such fact to
the other Party and shall exercise due diligence to perform its obligations upon the
removal or termination of the uncontrollable force.
15. ASSIGNMENT.
15.1 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.
15.2 In the event of any assignment or Transfer by either Party undertaken
pursuant to Section 15.1 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,
14
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.
16. SUBCONTRACTING BY CITY.
CITY may subcontract any or all of the maintenance, emergency or construction
services required of it under this Agreement, provided that CITY shall require the
subcontractor(s) to perform in accordance with the requirements and procedures set forth
herein. The use of any such subcontractor shall not relieve CITY of any of its obligations
hereunder.
17. WAIVER.
Any waiver at any time by either Party of its rights with respect to a default under
this Agreement, or with respect to any other matter arising in connection with this
Agreement, shall not be deemed a waiver with respect to a subsequent default or other
matter.
18. 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.
19. 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.
20. NOTICES.
Any written notice under this agreement shall be deemed properly given if sent by
registered or certified mail, postage prepaid, return receipt requested, or by nationally
recognized overnight delivery service 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.
CITY: City of Vernon
Attn: Ali R. Nour
Engineering Manager
4305 Santa Fe Avenue
Vernon, CA 90058-0805
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CUSTOMER: PWP Industries, Inc.
Attn: John Morrison
V.P. — Information Technology
5500 Boyle Avenue
Vernon, CA 90058
21. 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 a court
of competent jurisdiction in the County of Los Angeles, California.
22. 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 the CUSTOMER's requirements or that the services will prevent unauthorized
access by third parties.
23. USE OF THE CUSTOMER SYSTEM.
CUSTOMER shall have exclusive control over and responsibility for the
installation, enabling, configuration, operation and monitoring of voice, data, and/or other
video services across the Customer System, including, without limitation, CUSTOMER
premise and nodal electronics, and any other electronics, hardware or software on the
CUSTOMER's side of the Demarcation Points.
24. 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.
25. 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 for
administrative purposes, and each Short Form IRU Agreement shall be attached
chronologically as part of Exhibit "A" to this Agreement and thereby made a part of this
Agreement.
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26. 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.
27. 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. within such thirty (30) day period, then the
Short Form IRU Agreement 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 conform to the requirements set forth in the final acceptance
testing plan within seven (7) days of 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, the
terms. of Section 9.3.2(ii) and the remedies described in Section 9.4.3 above shall apply.
28. BILLING AND PAYMENT.
28.1 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 on a quarterly basis pursuant to
the terms of the appropriate Short Form IRU Agreement. If CUSTOMER requests
additional connections, disconnections or other services, CITY shall invoice
CUSTOMER within 30 days of completing such requested service.
b. CUSTOMER shall submit payment in full within thirty (30) days
after receipt of the CITY's invoice.
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29. TITLE.
CUSTOMER agrees that all right, title, and interest in the Cable System and 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 the Customer Infrastructure 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.
30. 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. CUSTOMER represents
that in entering into this Agreement it has not relied on any previous representations or
understandings of any kind or nature.
31. 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 9, 11, 21, 22, 29, and 30 shall survive the termination of this Agreement.
32. AMENDMENT.
This Agreement may not be amended except pursuant to a written instrument
signed by each of the Parties.
33, CONFLICTING TERMS.
In case of conflict between this Agreement and any Short Form IRU Agreement,
the terms and conditions of this Agreement shall control.
34. HEADINGS.
Section headings used in this Agreement are for convenience of reference only
and shall not affect the interpretation or construction of the Agreement.
35. 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
18
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.
[Signatures begin on the next page]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the day and year first
above written.
CITY OF VERNON
By:-��—
ATTEST:
4, "�Z
City C erk
Willard G. Yamag chi
APP D AS TO FORM:
our c S. Weiner, City Attorney
WE
CUSTOMER
By:
Print Name
Title: V P — 7— I
Print Name:
Title:
EXHIBIT A
EXHIBIT "A"
ALL SHORT FORM IRU AGREEMENTS
EXHIBIT "A"
SHORT FORM IRU-06.1
Indefeasible Right of Use Agreement
THIS SHORT FORM IRU-06.1 INDEFEASIBLE RIGHT OF USE AGREEMENT
(herein referred to as "IRU-06.1 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 29 th day of March , 2010 (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 PWP INDUSTRIES, INC.
(hereinafter referred to as "CUSTOMER"), a California corporation with offices at 5500
Boyle Avenue, Vernon, California 90058, which are sometimes referred to individually
as "Party" and collectively as "Parties." Upon execution, this IRU-06.1 Agreement shall
become a part of the master agreement entitled Optical Fiber Use Agreement
("Agreement") dated _, 20 . Each term. used in this IRU-06.1
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-
06.1 Agreement, and govern and control each Party's rights and obligations hereunder.
RECITALS
WHEREAS, the CITY has constructed a fiber optic infrastructure within the
jurisdictional boundaries of the CITY, known as the "Cable System," in the general route
set forth in Exhibit G "Map of Cable System"; and
WHEREAS, title to the Cable System is vested exclusively in the CITY; and
WHEREAS, the CITY grants an indefeasible right of use to various commercial
users in the City to use certain optical dark fiber strands and associated facilities in the
Cable System for voice, data, and other video services; and
WHEREAS, the CITY desires to grant to CUSTOMER an indefeasible right to
use certain optical dark fiber strands and associated facilities for CUSTOMER's
exclusive use; and
WHEREAS, CUSTOMER desires to lease roughly 1.66 fiber strand miles of
certain Cable System components between CUSTOMER's buildings located at 5500
Boyle Avenue and 3751 Seville Avenue (referred to individually as "Customer Facility"
and collectively as "Customer Facilities").
THEREFORE, in consideration of the mutual agreements herein, the Parties agree
as follows:
Recitals. The Parties to this IRU-06.1 Agreement agree and attest to the truth and
accuracy of the recitals set forth above, which are hereby incorporated and made a
part of this IRU-06.1 Agreement by this reference.
2. Grant of Indefeasible Right of Use. The CITY hereby grants to CUSTOMER an
Indefeasible Right of Use (IRU) of the following Cable System components:
4.
Fiber strand numbers 13 and 14 of the Cable System terminating in each
Customer Facility and dedicated for CUSTOMER's exclusive use, as
identified in l RU-06.1-Schedule—E.
The above -described individual Cable System components collectively shall be
the Customer System for this IRU-06.1 Agreement. The Customer System shall
be inclusive of the above described Cable System components between and
including the CITY'S sides of the originating and terminating Demarcation Points
at the Customer Facilities. The Customer System does not include any conduit,
fiber, premises, buildings, boxes, or other equipment or facilities on the
CUSTOMER's side of the Demarcation Points.
Project Schedule. The CITY will construct and install any necessary Backbone
Extensions or Service Drops as may be necessary to provide the Customer System
for CUSTOMER'S use in accordance with the terms of the Agreement and this
IRU-06.1 Agreement. The CITY shall use commercially reasonable efforts to
comply with the project schedule that is attached hereto as IRU-06.1-Schedule-F
or as otherwise determined by the Parties in writing; 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 deliver written notice of
intent to terminate to CITY within five (5) days following the CITY's failure to
meet the Construction End Date, as set forth in Schedule-F or as otherwise
determined by the Parties in writing. If the CITY fails to complete construction
within 10 days following receipt of CUSTOMER's notice, CUSTOMER shall
have the right to terminate this IRU-06.1 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 Section
27 of the Agreement, the portion of the Cable System covered by this IRU-06.1
Agreement as meeting the specifications set forth in the attached IRU-06.1-
Schedule-D, determined in accordance with the acceptance testing plan as
described in Section 27 of the Agreement (the "Commencement Date"). The
length of the Term for this IRU-06.1 shall be three years from the
Commencement Date.
&A
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 the Customer Facilities,
essentially the construction of a Service Drop; 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.
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 Facilities,
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 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-06.1 Agreement.
6. Costs and Fees. An invoice setting forth a summary of the transactions under the
IRU-06.1 Agreement is attached hereto as IRU-06.1-Schedule-B. The payments
and charges shall be in accordance with Section 28 of the Agreement and as
specifically identified in the following subparagraphs:
6.1 CUSTOMER shall pay a one time construction and installation charge of
(waived)
6.2 CUSTOMER shall pay quarterly IRU fee payments of $2,946.00 based on
a monthly base rate of $982.00 with the first quarterly payment due to the
CITY upon CUSTOMER execution of this IRU-06.1 Agreement. The
first payment shall cover the period April 8, 2010 through June 30, 2010
and shall be prorated accordingly.
-3-
6.3 If CUSTOMER requests additional connection or disconnection services
in writing, CUSTOMER shall pay for each additional service the fees
stated in Section 2.2 of IRU-06.1-Schedule—C. 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.
6.4 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-06.1 Agreement are set forth in IRU-06.1-
Schedule-A hereto and are subject to increase at a rate not to exceed the
cumulative increase in the Consumer Price Index (as defined below) since
the last rate change.
6.5 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-U), published by the United States
Department of Labor, Bureau of Labor Statistics (1982-84=100). The
recurring fee may be increased at any time or after the yearly anniversary
of the Effective Date of this IRU-06.1 Agreement by the cumulative
increase, if any, in the CPI-U for the Los Angeles -Riverside -Orange
County, CA area 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.
For any Total Service Interruptions, the CITY will grant CUSTOMER a "Credit
Allowance" to be credited against the CUSTOMER's monthly charges. Credit
Allowances will be calculated in one (1) hour increments, with partial hours
rounded up to a full hour. Each hour of Total Service Interruption is valued at
$1.36 (equal to the monthly charge, $982, divided by the total number of hours in
an average month, 720). A "Total Service Interruption" will be deemed to have
occurred only if
7.1 Service becomes unusable to CUSTOMER as a result of the 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;
-4-
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 Scheduled maintenance or alteration, or the 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's invoice 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.
8. This IRU-06.1 Agreement, including all Schedules and Exhibits which are
attached hereto, are hereby incorporated into the Agreement, dated
as Exhibit "A to the Agreement. The Agreement, this IRU-06.1
Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement
between the Parties with respect to the subject matter hereof.
9. This IRU-06.1 Agreement cannot be modified except by written instrument
signed by both Parties.
[Signatures begin on the next page]
-5.
IN WITNESS WHEREOF the Parties have executed and delivered this IRU-06.1
Agreement effective the day and year first above written:
AT ST:
City Clerk
Willard G. Yam u i
APPROVED AS TO FORM:
r7-<a
Lad6nPds. Weiner, City Atto ey
152
CITY OF VERNON
CUSTOMER
By:
Print Name: ,--��,,,
Title:
Print Name: l Waal�
yI,
Title: (� ul�' t�
IRU-06.1-Schedule-A
MAINTENANCE AND REPAIR RATES
Charges for Time and Material Service
Where applicable, the CITY shall perform maintenance or installation service at
the rates established below. Unless specifically authorized by the CUSTOMER in
writing, no scheduled maintenance will be performed outside of normal working hours.
Normal Working Hours
7:00 a.m. to 3:30 p.m.,
Monday through Friday (except for
CITY observed holidays)
Overtime Hours
6:00 a.m. to 7:00 a.m., and
3:30 p.m. to 12:00 midnight,
Monday through Friday (except for
CITY observed holidays)
Holiday Hours and Special Call Out
Any time during a CITY observed holiday
or any time during Saturday or Sunday, or
any time between the hours of 12:00 Midnight
and 6:00 a.m., Monday through Friday
Hourly Rate
$ 85.00
Hourly Rate
$ 105.00
Hourly Rate
$ 130.00
Charges will be made for travel time to the location where maintenance is to be
performed. 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
-7-
IRU-06.1-Schedule-B
SAMPLE OUARTERLY INVOICE
This sample IRU-06.1 Agreement Invoice provides a summary of the quarterly
charges under this IRU-06.1 Agreement at the time of execution.
Customer Facilities: 5500 Boyle Avenue and 3751 Seville Avenue, Vernon, CA
Approximate Length of Fiber Optic Strand: (8,800' or 1.66 Fiber strand miles)
ITEM Description IRU Fees
Quarterly IRU-06.1 Base Charges $ 2,946.00
(April 2010 through June 2010)
($982.00/month x 3 months = $2,946.00)
(2) Fiber strands x 1.66 strand miles x $180/mile = $600.00
(4) Fiber ports x $50/port = $200.00
(2) Fiber Strands x 1.66 strand miles x $SS/mile = $182.00
$982.00
Note: The length of strand miles has been rounded to two decimal places in the above -
stated figures, which explains any minor discrepancies in the calculation of the
total quarterly fee.
Total Quarterly IRU-06.1 Agreement Fees
$ 2,946.00
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.
IRU-06.1-Schedule-C
DARK FIBER PRICING
1.0 FEES:
1.2 1.1 Monthl�Dark Fiber Services Fees:
CUSTOMER shall pay the CITY in quarterly installments for the use of the first
two Fiber strands. The total quarterly charge for the City's services under this IRU-06.1
Agreement are $2,946.00. That amount is calculated on the basis of the following
rounded costs:
A. $ 180.00 per Fiber strand mile (1.66) per month (3) for the first
two Fiber strands (2); plus
B. $ 55.00 per Fiber strand mile (1.66) per month (3) for construction
and maintenance fees for the first two Fiber strands (2); plus
C. $ 50.00 per Fiber port (4) per month (3).
2,0 Additional Services and Connection/Disconnection/Rearrangement Fees
2.1. General
If the CUSTOMER requests the use of additional fiber strands, the CITY will
charge CUSTOMER an additional $ 120.00 use fee per Fiber strand mile per month per
each additional fiber. The Parties shall amend this Agreement in writing upon the
CUSTOMER's request to add additional Fibers.
2.2 Building Service
If the CUSTOMER requests the use of additional fiber strands or requests the
deletion of the use of certain fibers, the CITY will charge CUSTOMER a one-time
service connection (or deletion) fee for the initial establishment and cutover of a
CUSTOMER'S point-to-point or distribution Cable System (ring or segment). The
following one-time fees apply if the CUSTOMER requests the addition or deletion of
building service to/from a CUSTOMER point-to-point or distribution Cable System and
for all building service connections:
A. Service Addition:
Fiber Count I Charge/Fiber
Each $400
B. Service Deletion:
Fiber Count Charge/Fiber
Each $200
C-2
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2.3 Major Requests by CUSTOMER
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 in
accordance with the rates set forth in IRU-06.1-Schedule-A plus a fifteen (15) percent
overhead charge. The parties shall agree in writing before proceeding with such work.
C-3
l RU-06.1-Schedule-D
CUSTOMER 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 stated herein,
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 IRU-06.1 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 IRU-06.1 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, 1310nm
Maximum attenuation, 1550nm
Cladding diameter
Core diameter
Cutoff Wavelength
Zero dispersion wavelength
Maximum dispersion (1285-1330 nm)
3.2 Splice Loss
0.5 dB/Km
0.4 dB/Km
125 +/- 3 um
8.3 um
1250 +/- 100 nm
1310 +/- 12 nm
3.5 ps/ (nm-km)
Splice loss on CITY cables will average less than or equal to 0.15 dB for all
splices the CITY makes under this IRU-06.1 Agreement. The 0.15 dB splice average
will only apply to splices between cables of identical physical and optical properties
D-1
(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-06.1
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 system
C = Connector/pigtail loss. The attenuation contribution of each pigtail with
associated connector is considered to be 1.0 dB comprised of 0.85 dB
connector loss and 0.15 dB splice loss (pigtail to OSP cable splice).
Therefore, C = 1.0 dB if the span is connectorized on one end and 2.0 dB if
connectorized on both ends.
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 a request by the CUSTOMER, to ensure that the
attenuation values conform to the Specifications set forth in this IRU-06.1-Schedule—D.
Analog Video
The CITY will not warrant CUSTOMER analog video transmission within the
foregoing system parameters.
D-2
IRU-06.1-S�hedute-E
MAP OF CUSTOMER SYSTEM
FIBER STRANDS LEASED TO
n I mmmn my uvv v imnitim I AWN I c10PWP INDUSTRY
Construction Start Date:
Construction Completion Date:
System Testing:
IRU-06.1-Schedule-F
PROJECT SCHEDULE
March 30, 2010
April 5, 2010
April 7, 2010
Available for Customer System Use: April 8, 2010
IRU-06.1-Schedule-G
CITY' S CABLE SYSTEM MAP
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LIGHT & POWER DEPARTMENT
LOCATION:: SYSTEM
FIBER OPTIC SYSTEM
VERNON BACKBONE
0 INUED FUR RE9[BN 2 10 ID GAB OPTICAL NETWORK
NO. REVISION DA APP D CHK BY E-S4T-109-0
EXHIBIT B
EXHIBIT "B"
TROUBLE -REPORTING
PROCEDURE
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 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, and 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.
STAFF REPORT
LIGHT & POWER
DATE: March 23, 2010
TO: Honorable Mayor and City Council .��J
FROM: Donal O'Callaghan, Director of Light & Power
RE: OPTICAL FIBER USE AGREEMENT No. 6 —
P W P INDUSTRIES, INC. — 5500 S. BOYLE AVENUE
Purpose:
MAR 2 4 2010
CITY CLERK'S OFFICE
To enter into a three year term service agreement with P W P
Industries, Inc. to deliver fiber optic connection services between
customer buildings for their exclusive communication use for a fee.
Recommendation:
I am recommending the approval of the Optical Fiber Use Agreement
No. 6 with P W P Industries, Inc., and the related Short Form IRU-
06.1 Indefeasible Right of Use Agreement and the Agreements be
addressed on the March 29, 2010 City Council. Agenda. Upon approval,
the construction will commence.
Fiscal Impact:
The Optical Fiber Use Agreement with P W P Industries will generate
$35,352 in the first three years. The City's initial cost for the
lateral extensions is $5,200. Customer's monthly fee includes City's
initial cost to construct, anticipated future maintenance and
administrative expenses and the City's investment in the fiber
backbone infrastructure.
DO: an
C: Ali Nour
Project Control
Document Control- Fiber Optics - -
MAR 2 4 2010
CITY ATTORNEY'S OFFICE
MEMORANDUM
TO: Ali Nour, Engineering Manager
FROM: Diana H. Varat, Assistant City Attorney
cc: Laurence S. Wiener, City Attorney
Gena M. Stinnett, Assistant City Attorney
DATE: March 23, 2010
SUBjEcT: Optical Fiber Use Agreement with PWP Industries, Inc. - Approved as to Form
The City Attorney's Office has reviewed the Optical Fiber Use Agreement with PWP Industries,
Inc,, and the related Short Form IRU-06.1 Indefeasible Right of Use Agreement, and has
approved them as to form.
12720-0007\1216778v1.doc
DATE: February 17, 2010 � ��O
TO: Donal O'Callaghan, Director of Light & Power
21 a ----
FROM: Ali Nour, Engineering Manager
SUBJECT: Optical Fiber Use Agreement —
P W P Industries -5500 S. Boyle Avenue
The initial investment to the City to interconnect PWP's two buildings is $5,200. The
customer has agreed to increase the monthly fees for the service from $800 per month to
$985 per month to cover the construction charges with a three years minimum contract.
The additional $185 per month amounts to $6,660 in a three years span.
Majority of the path between PWP's two buildings are already in place since they will be
on City's existing fiber backbone. The payback period for the initial construction cost is
less than six months. The cost to ensure a maintenance program is in place for emergency
response adds another four months to the payback period. The initial cost to construct
backbone and now allocate 1/48a' of the City's network to PWP increases the total
payback period to 12 months. In three years span to serve PWP, the City will incur
$11,500 of expenses and capital expenditure and in return the City will receive $35,460
in total payments.
Dark fiber services customers have not yet cancelled any services. CR Laurence has been
a customer for the past seven years; Farmer John is in its fifth year; Huxtable's in its
fourth year and US Growers also in its fourth year.
PWP has also requested Internet Services and will be billed an additional $775 per month
for this service. The construction for the Internet link is included in the construction cost
for the dark fiber services. I estimate in three years span, PWP will compensate the City
$27,900 for Internet service and our cost to deliver Internet including network monitoring
and the purchase of the bandwidth for PWP amounts to $11,500 yielding a 14 months
payback period.
With your consent, I request that the attached agreement which has been used in the past
for other dark fiber use customers be reviewed by the City Attorney for as to form and be
placed in the City Council Agenda for review and approval as soon as possible.
MAR ''
Should you need additional information, please let me know.
ARN/
C: Project Control
Document Control —
Dark Fiber Lease Agreements
DATE: February 16, 2010
TO: Donal O'Callag�-iYn, Director of Light & Power
yql, • A�.�
FROM: Ali Nour, Engineering Manager
SUBJECT: Optical Fiber Use Agreement —
P W P Industries -5500 S. Boyle Avenue
The Light and Power Department Engineering has been approached by P W P Industries
to interconnect their computer networks or telephone systems across multiple locations
within the City limits using the City's Dark Fiber Network. P W P is the eighth largest
electric user in Vernon with two buildings approximately two miles apart.
The City can enter into a minimum three year term agreement with the customer to
provide the Dark Fiber Interconnection and Internet Services similar to the agreements
made with C. R. Laurence, Inc., Farmer John, Huxtable's and U.S. Growers.
The Dark Fiber Service revenue for the first three year term will be $35,460 and the
Internet revenue will be $27,900. Both projects will generate $63,360 gross revenue
during the first three year term.
With your consent, I request that the attached agreement which has been used in the past
for other dark fiber use customers be reviewed by the City Attorney for as to form and be
placed in the City Council Agenda for review and approval as soon as possible.
Should you need additional information, please let me know.
ARN/
C: Project Control '
Document Control — �Cnr
Dark Fiber Lease Agreements
FEB 1 7 2010
Y:_&�