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Resolution No. 2010-055RESOLUTION NO. 2010-55 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-07.1 AND IRU-07.2 INDEFEASIBLE RIGHT OF USE AGREEMENTS BY AND BETWEEN THE CITY OF VERNON AND C.R. LAURENCE INTERNATIONAL, 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, on September 3, 2003, the City Council of the City of Vernon adopted Resolution No. 8279 approving and authorizing the execution of an Agreement No. 01 Optical Fiber Use Agreement ("Agreement No. 1") and Short Form IRU-01.1 with C.R. Laurence International, Inc. ("C.R. Laurence"); and WHEREAS, Agreement No. 1 and Short Form IRU-01.1 have expired; and WHEREAS, C.R. Laurence has requested a new master agreement and new Short Form Indefeasible Right of Use Agreements so it may continue to use fiber-optic connections provided by the City; and WHEREAS, the City and C.R. Laurence have negotiated an Optical Fiber Use Agreement to establish the terms and conditions by which the City will provide C.R. Laurence with the use of fiber optic strands ("Optical Fiber Use Agreement") and the Short Form IRU-07.1 and IRU-07.2 Agreements to allow C.R. Laurence the specific use of 1.51 and 0.50 fiber strand miles of certain Cable System components between C.R. Laurence buildings located at 2503 Vernon Avenue and 2810 Ross Street ("Short Form IRU-07.1 Agreement") and between C.R. Laurence buildings located at 2503 Vernon Avenue and 2450 Vernon Avenue ("Short Form IRU- 07.2 Agreement"), collectively referred to herein as the "Agreements"; and WHEREAS, by memo dated April 29, 2010, the Director of Light & Power has recommended that the City Council approve the Optical Fiber Use Agreement and the Short Form IRU-07.1 and IRU-07.2 Agreements. 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-07.1 and Short Form IRU-07.2 Agreements with C.R. Laurence, 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 - 2 - directs the City Clerk, or the City Clerk's designee, to send one of each of the two fully executed Agreements to: C.R. Laurence Attn. Larry Komar, Director of Telecommunications 2503 Vernon Avenue Vernon, CA 90058 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. APPROVED AND ADOPTED this 10th day of May, 2010. Z. I i.- 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. 2010-55, 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, May 10, 2010, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of May, 201,Q, at Vernon, California. (SEAL) Willard G kG'^ i, City Clerk - 4 - EXHIBIT A OPTICAL FIBER USE AGREEMENT By and Between THE CITY OF VERNON and C. R. LAURENCE INTERNATIONAL, INC. TABLE OF CONTENTS Page 1. DEFINITIONS..........................................................................................................I........2 2. TERM. .................. .........._..................................................................................................4 3. TAXES..............................................................................................................................4 4. MAINTENANCE AND CREDIT ALLOWANCE . ................... :........................................ 4 5. FREEDOM OF ACTION...................................................................................................6 6. COMPLIANCE WITH LAWS ................................. 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. SEVERABILITY.............................................................................................................18 EXHIBIT A: Short Form IRU- Agreements EXHIBIT B: Trouble Reporting Procedure 1 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 10 th day of May , 2010 ("Effective Date"), between the CITY OF VERNON (hereinafter referred to as the "CITY"), having its offices at 4305 Santa Fe Avenue, Vernon, California 900581, and C.R. LAURENCE INTERNATIONAL, INC. (hereinafter referred to as "CUSTOMER"), a California corporation, having an office at 2503 Vernon Avenue, Vernon, California 90058, and which are sometimes referred to individually as "Party" and collectively as "Parties." RECITALS WHEREAS, the CITY has an existing optical fiber cable system or "Cable System" (as hereinafter defined) throughout the City of Vernon, 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 Ag eement: 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'W 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 five (5) years (hereinafter referred to as the "Term"), commencing on the date of this Agreement. The duration of each Short Form IRU Agreement, and any renewal or extension thereof, shall be set forth in the applicable Short Form IRU Agreement for each portion of the Customer System; provided, however, that in no event shall the term of a Short Form IRU Agreement extend beyond the termination of this Agreement. 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. 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 4 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 parthereof. 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. 5 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. rol 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 Party, 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 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 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 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 TRU 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. 2 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)2' 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 10 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 + 1/2 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. 1,0.1 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. 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 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 LMTATION, 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 12 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 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 15 CUSTOMER: C. R. LAURENCE INTERNATIONAL INC. Attn: Larry Komar Director of Telecommunications 2503 Vernon 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 RvIPLIED, 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. 16 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: Willard Yamaguchi, City Clerk APPROVED AS TO FORM: Laurence S. Weiner, City Attorney 20 CITY OF VERNON By: Mayor / Mayor Pro-Tem ST MER By: - Print Name: Ar P(e Title: By: Print Name: Title: EXHIBIT A EXHIBIT "A" ALL SHORT FORM IRU AGREEMENTS EXHIBIT "A" SHORT FORM IRU-07.1 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-07.1 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-07.1 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 10 th day of May , 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 C. IL LAURENCE INTERNATIONAL, INC. (hereinafter referred to as "CUSTOMER"), a California corporation with offices at 2503 Vernon Avenue, Vernon, California 90058, which are sometimes referred to individually as "Party" and collectively as "Parties." Upon execution, this IRU-07.1 Agreement shall become a part of the master agreement entitled Optical Fiber Use Agreement ("Agreement") dated May _Q, 2010. Each term used in this IRU-07.1 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-07.1 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 1.51 fiber strand miles of certain Cable System components between CUSTOMER's buildings located at 2503 Vernon Avenue and 3810 Ross Street (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-07.1 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-07.1 Agreement by this reference. -1- 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: Fiber strand numbers 95 and 96 of the Cable System terminating in each Customer Facility and dedicated for CUSTOMER's exclusive use, as identified in l RU-O7.1-Schedule-E. The above -described individual Cable System components collectively shall be the Customer System for this IRU-07.1 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. 3. Proiect 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-07.1 Agreement. The CITY shall use commercially reasonable efforts to comply with the project schedule that is attached hereto as IRU-07.1-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 LMTATION, 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-07.1 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. 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-07.1 Agreement as meeting the specifications set, forth in the attached IRUIRU-07.1- Schedule-D, determined in accordance with the acceptance testing plan as described in Section 27 of the Agreement (the "Commencement Date"). The -2- length of the Term for this IRU-07.1 shall be three years from the Commencement Date. 4. Obligations of the CITY. The CITY shall provide the following items for the Customer System: 4.1 A Demarcation Point at each CUSTOMER access location; 4.2 Optical fiber cable extension segments from splice enclosure in the public right-of-way to the Demarcation Point in 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-07.1 Agreement. 6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-07.1 Agreement is attached hereto as IRU-07.1-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 (Not Applicable) . 6.2 CUSTOMER shall pay quarterly IRU fee payments of $2,230.80 based on a monthly base rate of $743.60 with the first quarterly payment due to the -3- CITY upon CUSTOMER execution of this IRU-07.1 Agreement. However, the first payment shall be prorated and cover the period May 1, 2010 through June 30, 2010. 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-07.1-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-07.1 Agreement are set forth in 1RU-07.1- 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-07.1 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. 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 $1.03 (equal to the monthly charge, $743.60, 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. Ca 7.2.1 The acts or omissions of CUSTOMER or its agents, employees, suppliers or contractors; 7.2.2 The failure or malfunction of non -CITY equipment, facilities, or system; 7.2.3 Any circumstances or causes beyond the control of the CITY; or 7.2.4 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-07.1 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-07.1 Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof. 9. This IRU-07.1 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-07.1 Agreement effective the day and year first above written: ATTEST: Willard Yamaguchi, City Clerk APPROVED AS TO FORM: Laurence S. Weiner, City Attorney -6- CITY OF VERNON By: Mayor or Mayor Pro-Tem CUSTOMER By:- a�' Print Name:� Title: a14- UU LIM Print Name: Title: l RU-07.1-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-07.1-Schedule-B SAMPLE QUARTERLY INVOICE This sample IRU-07.1 Agreement Invoice provides a summary of the quarterly charges under this IRU-07.1 Agreement at the time of execution. Customer Facilities: 2503 Vernon Avenue and 3810 Ross Street, Vernon, CA Approximate Length of Fiber Optic Strand: (7,992' or 1.51 Fiber strand miles) ITEM Description IRU Fees 1 Quarterly IRU-07.1 Base Charges $ 2,230.80 (May 2010 through July 2010) ($743.60/month x 3 months = $2,230.80) (2) Fiber strands x 1.51 strand miles x $180/mile = $543.60 (4) Fiber ports x $50/port = $200.00 0143.OV 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-07.1 Agreement Fees $ 2,230.80 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 IRU-07.1-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-07.1 Agreement are $2,230.80. That amount is calculated on the basis of the following rounded costs: A. $ 180.00 per Fiber strand mile (1.51) per month (3) for the first two Fiber strands (2); plus B. $ 50.00 per Fiber port (4) per month (3). 2.0 Additional Services and Connection/Disconnection/Reairanizement 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 Charge/Fiber Each $400 B. Service Deletion: Fiber Count Charge/Fiber Each 1$200 2.3 Major Requests by CUSTOMER C-2 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-07.I-Schedule-A plus a fifteen (15) percent overhead charge. The parties shall agree in writing before proceeding with such work. C-3 IRU-07.1-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-07.1 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-07.1 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, 131 Onm 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-07.1 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-07.1 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-07.1-Schedule—D. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 IRU-07.1-Schedule-E MAP OF CUSTOMER SYSTEM r m O•®a m A Z 0 �.� � p AL4NEOA�-ET r a �4o m < z m P my z a gTREET m IwR 9 m HAWHORNE RD95 y L- Z e AiERO � m u 24-S ww z m F m C] m r i m QQ m N 9T. OHARLE9 BACD 9T. ]I ® IRVYN BT a m fo 6ANTA FE AVENUE m W G n a N OD p I = L J m ' OD z m G m J W cn s n L7 m 1� y r x N � a Z A p C mSEVILLE W AVENU W VENUE ~ n n O p A r r eb m a .1 � d [/� C W < 13 A STREET 0 sOT. d Z 'c 0 o a \� Z 1 < z A z m o n _ z s� A C AVFNUE t Q C V r m• A p H p m A < SIERRq PINE AVENUE m LIGHT k POVa DEPARTMENT LOCATION; FIBER OPTION SYSTEM RU-7.1 •i'�� FlBER STR NDS LEASED TO C.R. LAURENCE CO., INC. 0 189M FOR10 NO. REVISION DATE APPVD CHK BY —S —10— IRU-07.1-Schedule-F PROJECT SCHEDULE Construction Start Date: Construction Completion Date: System Testing: Available for Customer System Use: Not Applicable (Existing system) Not Applicable (Existing system) Not Applicable (Existing system) System in Use IRU-07.1-Schedule-G CITY' S CABLE SYSTEM MAP r Z O� �o>o3rw� ;$■'r �.E:3 Be a. i w iOeA{ _ =icO O ■ �00 0�6�� C■ n wo a } e ■ o c z 71 o n o a ^ I r� o o � � _ n K ® I iV I W co a C rn I UGHT & POWER DEPARTMENT LO nat SYSTEM FIBER OPTIC SYSTEM VERNON BACKBONE nis= m RS EW 21181ju M GAR OPTICAL NETWORK NO. REVISION DATE APPYD CHK BY E-S4T-110-0 SHORT FORM IRU-07.2 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-07.2 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-07.2 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 1Qth day of May , 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 C. R. LAURENCE INTERNATIONAL, INC. (hereinafter referred to as "CUSTOMER"), a California corporation with offices at 2503 Vernon Avenue, Vernon, California 90058, which are sometimes referred to individually as "Party" and collectively as "Parties." Upon execution, this IRU-07.2 Agreement shall become a part of the master agreement entitled Optical Fiber Use Agreement ("Agreement") dated May i n , 201o. Each term used in this IRU-07.2 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-07.2 Agreement, and govern and control each Parry'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 less than 0.50 fiber strand miles of certain Cable System components between CUSTOMER's buildings located at 2503 Vernon Avenue and 2450 Vernon 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: 1. Recitals. The Parties to this IRU-07.2 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-07.2 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: Fiber strand numbers 3 and 4 of the Cable System terminating in each Customer Facility and dedicated for CUSTOIVIER's exclusive use, as identified in l RU-07.2-Schedule—E. The above -described individual Cable System components collectively shall be the Customer System for this IRU-07.2 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 maybe necessary to provide the Customer System for CUSTOMER'S use in accordance with the terms of the Agreement and this IRU-07.2 Agreement. The CITY shall use commercially reasonable efforts to comply with the project schedule that is attached hereto as IRU-07.2-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-07.2 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. 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-07.2 Agreement as meeting the specifications set forth in the attached IRU-07.2- Schedule-D, determined in accordance with the acceptance testing plan as described in Section 27 of the Agreement (the "Commencement Date"). The -2- length of the Term for this IRU-07.2 shall be three years from the Commencement Date. 4. Obligations of the CITY. The CITY shall provide the following items for the Customer System: 4.1 A Demarcation Point at each CUSTOMER access location; 4.2 Optical fiber cable extension segments from splice enclosure in the public right-of-way to the Demarcation Point in 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-07.2 Agreement. 6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-07.2 Agreement is attached hereto as IRU-07.2-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 Construction and installation charges shall be added to the invoice for the first, quarterly payment or prorated portion thereof. CUSTOMER shall pay a onetime construction and installation charge of 4 500.00. -3- 6.2 CUSTOMER shall pay quarterly IRU fee payments of $1,140.00 based on a monthly base rate of $380.00 with the first quarterly payment due to the CITY upon CUSTOMER execution of this IRU-07.2 Agreement. However, the first payment shall be prorated and cover the period May 1, 2010 through June 30, 2010. 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-07.2-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-07.2 Agreement are set forth in IRU-07.2-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-07.2 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 $0.53 (equal to the monthly charge, $380.00, 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 -4- 7.2 The interruption is not wholly or partially the result of: 7.2.1 The acts or omissions of CUSTOMER or its agents, employees, suppliers or contractors; 7.2.2 The failure or malfunction of non -CITY equipment, facilities, or system; 7.2.3 Any circumstances or causes beyond the control of the CITY; or 7.2.4 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 CUSTOM[ER'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-07.2 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-07.2 Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof. 9. This IRU-07.2 Agreement cannot be modified except by written instrument signed by both Parties. [Signatures begin on the next page] -5- IN WITNESS WBEREOF the Parties have executed and delivered this IRU-07.2 Agreement effective the day and year first above written: ATTEST: Willard Yamaguchi, City Clerk APPROVED AS TO FORM: Laurence S. Weiner, City Attorney -6- CITY OF VERNON Mayor or Mayor Pro-Tem CUSTOMER By: Print Name: A fe(.er Title: 1. k eI T na-gen LIM Print Name: Title: IRU-07.2-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 Hourly Rate 7:00 a.m. to 3:30 p.m., $ 85.00 Monday through Friday (except for CITY observed holidays) Overtime Hours Hourly Rate 6:00 a.m. to 7:00 a.m., and $ 105.00 3:30 p.m. to 12:00 midnight, Monday through Friday (except for CITY observed holidays) Holiday Hours and Special Call Out Hourly Rate Any time during a CITY observed holiday $ 130.00 or any time during Saturday or Sunday, or any time between the hours of 12:00 Midnight and 6:00 a.m., Monday through Friday Charges will be made for travel time to the location where maintenance is to be performed. Charges will also be made for travel time from the said location (a) in the event that maintenance carries over after 3:30 p.m., or (b) for any maintenance performed during holiday hours of special call out. Charges will be for a minimum of two (2) hours for normal and overtime hours and for a minimum of four (4) hours for holiday hours and special call out. CITY Holiday Schedule: New Year's Day President's Day Veterans Day Independence Day Labor Day Martin Luther King Day Memorial Day Thanksgiving Day and Day After Christmas Day Cesar Chavez Day -7- IRU-07.2-Schedule-B SAMPLE QUARTERLY INVOICE This sample IRU-07.2 Agreement Invoice provides a summary of the quarterly charges under this IRU-07.2 Agreement at the time of execution. miles) Customer Facilities: 2503 Vernon Avenue and 2450 Vernon, Vernon, CA Approximate Length of Fiber Optic Strand: (Less than 0.50 (0.32) Fiber strand ITEM Description IRU Fees Quarterly IRU-07.2 Base Charges $ 1,140.00 (July 2010 through September 2010) ($380.00/month x 3 months = $1,140.00) (2) Fiber strands x 0.50 strand miles x $180/mile = $180. 00 (4) Fiber ports x $50/port = $200.00 $380.00 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-07.2 Agreement Fees $ 1,140.00 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 IRU-07.2-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-07.2 Agreement are $1,140.00. That amount is calculated on the basis of the following rounded costs: A. $ 180.00 per Fiber strand mile (0.50) per month (3) for the first. two Fiber strands (2); plus B. $ 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. For any service agreement, the backbone monthly Services charge is based on a minimum length of 0.5 miles of fiber strand which corresponds to $380.00 per month. 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 Charge/Fiber Each $400 B. Service Deletion: Fiber Count Charge/Fiber Each 1 $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-07.2-Schedule-A plus a fifteen (15) percent overhead charge. The parties shall agree in writing before proceeding with such work. C-3 l RU-07.2-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-07.2 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-07.2 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 0.5 dB/Km Maximum attenuation, 1550mn 0.4 dB/Km Cladding diameter 125 +/- 3 um Core diameter 8.3 um Cutoff Wavelength 1250 +/- 100 nm Zero dispersion wavelength 1310 +/ 12 mn Maximum dispersion (1285-1330 nm) 3.5 ps/ (nm-km) 3.2 Splice Loss Splice loss on CITY cables will average less than or equal to 0.15 dB for all splices the CITY makes under this IRU-07.2 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 I1LU-07.2 Agreement: Single Mode Fiber 1310 nm and 1550 nin 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-07.2-Schedule—D. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 IRU-07.2-Schedule-E MAP OF CUSTOMER SYSTEM r n Z a� O Ir��j pLAMEOA ❑TREET G J m N G m Z y i a ,rl > m y � H—HORNS Z R009 BTREET n ~ n H Q N y - 9T, pHARlE6 BACn 9T. y� N m� A p � IRVING GT. 9 n m -1 W 9ANTA FE AVENUE A]. � °n L/] ❑ = m I m y 0 ENUE n I ➢� A Ix 5� L1 n —RO �r o a r N `r CrJ N I A m y N Z yA n CA n [ m mN 1 eEVIEIE AVENU ENUE 5 C+7 p p N r OIaa, O a 0 w ;0- A` n STREET ..TO 2 I G 13 z Z \� < � n Z ' m i m p L1 - i = A A r AVENU£ O 0 C m r N p C m F-1 SIERRA PINE .AVENU-1 n � F m i UGHT do PON4t DEPARTMENT lOCA M FlBER OPTION SYSIEM RU-07,2 FIBER STANDS LEASED TO C.R. LAURENCE CO., INC. 0 MM FOR 10 2 o4 dlQi seB NO. REVISION A APP D CHK BY E-S4-T-094-0 Construction Start Date: Construction Completion Date: System Testing: l RU-07.2-Schedule-F PROJECT SCHEDULE May 11, 2010 May 13, 2010 May 13, 2010 Available for Customer System Use: May 14, 2010 IRU-07.2-Schedule-E MAP OF CUSTOMER SYSTEM M 6ArrrA r-E AVENUE R 4� EN❑E ❑ PN � a A AAA m C.11 `i a LEVARO N P r -I Ln = N � m m _ F L E � fiEV1uLE AVENU •1 a ` eaTG STREET m i i v z z AVENue LIGHT k ot POMER OEPENT knFIBER OPTION SYSIEAIMTM RU-07.2 FIBER STANDS LEASED TO C.R. LAURENCE CO., INC. S4T-094-0 EXHIBIT "B" TROUBLE -REPORTING PROCEDURE EXIT "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. W-4:11,51yovall OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 May 11, 2010 C.R. Laurence Attn: Larry Komar Director of Telecommunications 2503 Vernon Avenue Vernon, CA 90058 Re: Optical Fiber Use Agreement and Short Form IRU-07.1 and IRU-07.2 Indefeasible Right of Use Agreements Dear Mr. Komar: Transmitted herewith is one each of the original fully executed agreements as referenced above, approved by City Council on May 10, 2010, through Resolution No. 2010-55. If you have any questions regarding this matter, please call Mr. Ali Nour, at (323) 583-8811 ext. 316. Very ly yours, WILLARD G. Y G I City Clerk WY:dj c: Donal O'Callaghan Ali Nour Resolution No. 2010-55 Agreement File No. 10-028 Excfusivefy IndustriaC OPTICAL FIBER USE AGREEMENT By and Between THE CITY OF VERNON and C. R. LAURENCE INTERNATIONAL, INC. 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 MAJELTRE..........................................................................................................14 15. ASSIGNMENT................................................................................................................14 16. SUBCONTRACTING BY CITY.....................................................................................15 17. WAIVER.........................................................................................................................1.5 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..; .................................................................................................... 6 ...................... 18 30. ENTIRE AGREEMENT.......................................................................................... :....... 18 31. SURVIVAL OF TERMS..................................................................................................18 32. AMENDMENT................................................................................................................18 33. CONFLICTING TERMS.................................................................................................18 34. HEADINGS......................................................................................................................18 35. SEVERABILITY.............................................................................................................. 18 EXHIBIT A: Short Form IRU Agreements EXHIBIT B: Trouble Reporting Procedure 1 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 10 th day of May , 20-1-o ("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 C.R. LAURENCE INTERNATIONAL, INC. (hereinafter referred to as "CUSTOMER"), a California corporation, having an office at 2503 Vernon Avenue, Vernon, California 90058, and which are sometimes referred to individually as "Party" and collectively as "Parties." RECITALS WHEREAS, the CITY has an existing optical fiber cable system or "Cable System" (as hereinafterrdefined) 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: 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 five (5) years (hereinafter referred to as the "Term"), commencing on the date of this Agreement. The duration of each Short Form IRU Agreement, and any renewal or extension thereof, shall be set forth in the applicable Short Form IRU Agreement for each portion of the Customer System; provided, however, that in no event shall the term of a Short Form IRU Agreement extend beyond the termination of this Agreement. 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. 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. 5 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. rol 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 Party, 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 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 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. 92.2 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 1RU 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 E. 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 anew 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. 0 i 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 fora 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 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. 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 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 LI IITATION, 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 12 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 Parry 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. RELATIONSHIl' 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 15 CUSTOMER: C. R. LAURENCE INTERNATIONAL INC. Attn: Larry Komar Director of Telecommunications 2503 Vernon 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 RVIPLIED, 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. 16 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 oilers, 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. CITY OF VERNON By: Mayor -Mayo, ATTE T: Willard Yamaguc , it Cl rk APP S TO F ren e . Weiner, City Attorney CU TOMER By: Upr Print Name: '4 ` (7de-s Title: LE Print Name: Title: EXHIBIT A EXHIBIT "A" ALL SHORT FORM IRU AGREEMENTS EXHIBIT "A" SHORT FORM IRU-07.1 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-07.1 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-07.1 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 10 th day of May 201 o (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 C. R. LAURENCE INTERNATIONAL, INC. (hereinafter referred to as "CUSTOMER"), a California corporation with offices at 2503 Vernon Avenue, Vernon, California 90058, which are sometimes referred to individually as "Party" and collectively as "Parties." Upon execution, this IRU-07.1 Agreement shall become a part of the master agreement entitled Optical Fiber Use Agreement ("Agreement") dated May __L(L, 201 a Each term used in this IRU-07.1' 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-07.1 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 1.51 fiber strand miles of certain Cable System components between CUSTOMER's buildings located at 2503 Vernon Avenue and 3810 Ross Street (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-07.1 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-07.1 Agreement by this reference. -I- 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: Fiber strand numbers 95 and 96 of the Cable System terminating in each Customer Facility and dedicated for CUSTOMER's exclusive use, as identified in IRU-07.1-Schedule—E. The above -described individual Cable System components collectively shall be the Customer System for this IRU-07.1 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. 3. 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-07.1 Agreement. The CITY shall use commercially reasonable efforts to comply with the project schedule that is attached hereto as IRU-07.1-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 LI IITATION, 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 CUSTOMEW s notice, CUSTOMER shall have the right to terminate this IRU-07.1 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-07.1 Agreement as meeting the specifications set. forth in the attached IRU-07.1- Schedule-D, determined in accordance with the acceptance testing plan as described in Section 27 of the Agreement (the "Commencement Date"). The. -2- length of the Term for this IRU-07.1 shall be three years from the Commencement Date, 4. Obligations of the CITY. The CITY shall provide the following, items for the Customer System: 4.1 A Demarcation Point at each CUSTOMER access location; 4.2 Optical fiber cable extension segments from splice enclosure in the public right-of-way to the Demarcation Point in 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-07.1 Agreement. 6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-07.1 Agreement is attached hereto as IRU-07.1-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 (Not Applicable). 6.2 CUSTOMER shall pay quarterly IRU fee payments of $2,230.80 based on a monthly base rate of $743.60 with the first quarterly payment due to the -3- CITY upon CUSTOMER execution of this IRU-07.1 Agreement. However, the first payment shall be prorated and cover the period May 1, 2010 through June 30, 2010. 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-07.1-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-07.1 Agreement are set forth in IRU-07.1- 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-07.1 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 $1.03 (equal to the monthly charge, $743.60, 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: -4- 7.2.1 The acts or omissions of CUSTOMER or its agents, employees, suppliers or contractors; 7.2.2. The failure or malfunction of non -CITY equipment, facilities, or system; 7.2.3 Any circumstances or causes beyond the control of the CITY; or 7.2.4 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-07.1 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-07.1 Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof. 9. This IRU-07.1 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-07.1 Agreement effective the day and year first above written: ATTE Willard Yamaguchi, ity Cler APPR ,V TO FORM Laurence S. Weiner, City Attorney -6- CITY OF VERNON CUSTOMER By:- ay" Print Name: A �' Title: 0. I f&ICL-44,' UU Print Name: Title: l RU-07.1-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- l RU-07.1-Schedule-B SAMPLE QUARTERLY INVOICE This sample IRU-07.1 Agreement Invoice provides a summary of the quarterly charges under this IRU-07.1 Agreement at the time of execution. Customer Facilities: 2503 Vernon Avenue and 3810 Ross Street, Vernon, CA Approximate Length of Fiber Optic Strand: (7,992' or 1.51 Fiber strand miles) ITEM Description IRU Fees 1 Quarterly IRU-07.1 Base Charges $ 2,230.80 (May 2010 through July 2010) ($743.60/month x 3 months = $2,230.80) (2) Fiber strands x 1.51 strand miles x $I80/mile = $543.60 (4) Fiber ports x $50/port = $200.00 $743.60 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-07.1 Agreement Fees $ 2,230.80 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 IRU-07.1-Schedule-C DARK FIBER PRICING 1.0 FEES: 1.21.1 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-07.1 Agreement are $2,230.80. That amount is calculated on the basis of the following rounded costs: A. $ 180.00 per Fiber strand mile (1.51) per month (3) for the first two Fiber strands (2); plus B. $ 50.00 per Fiber port (4) per month (3). 2.0 Additional Services and Connection/Disconnection/Reafrangement 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 Charge/Fiber Each $400 B. Service Deletion: Fiber Count Charge/Fiber Each $200 2.3 Major Requests by CUSTOMER C-2 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-07.1-Schedule-A plus a fifteen (15) percent overhead charge. The parties shall agree in writing before proceeding with such work. C-3 j.. General IRU-07.1-Schedule-D CUSTOMER SYSTEM SPECIFICATIONS 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-07.1 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-07.1 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 Suecifications Units Maximum attenuation, 131Onm 0.5 dB/Km Maximum attenuation, 1550nm 0.4 dB/Km Cladding diameter 125 +/- 3 um Core diameter 8.3 um Cutoff Wavelength 1250 +/- 100 nm Zero dispersion wavelength 1310 +/- 12 nm Maximum dispersion (1285-1330 nm) 3.5 ps/ (nm-km) 3.2 Splice Loss Splice loss on CITY cables will average less than or equal to 0.15 dB for all splices the CITY makes under this IRU-07.1 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-07.1 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-07.1-Schedule—D. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 IRp-07 1 §chi u e £ MAP Of CUSTOMER SYSTEM y■ Imo $ ..y z - //��: A \ < /k7 ..HAWTHORNE.� {^ »2 v ƒg k $f & kw ST.... � . � | FIT ' \ ] . . . , ., . , 7 _E t \ \: m 9 §_ /Oo �§ 0 . § .. k § . � 14 * . la » 7 ;3 .»\/ m §/ \>MTEET � z - �. \< ! . ' � � m . .. \U r 9\ LER-ww ._« 2m &NIaPOWER DEmTMEr . LOCATION: FIBER OPTION s, +- l ƒb nK/&+TEM LEASED TO c:Jgh«";INC. 185M FOR RWW -ZF No REVISION DATE 9qD OK By SAT-1/-0 © i= Construction Start Date: Construction Completion Date System Testing: IRU-07.1-Schedule-F PROJECT SCHEDULE Not Applicable (Existing system) Not Applicable (Existing system) Not Applicable (Existing system) Available for Customer System Use: System in Use IRU-07.1-Schedule-G CITY' S CABLE SYSTEM MAP r Z i G> S G O t0 � t � Z IN O P [-3 -. � 33 _ n I- p zLl ... i.. 3_ y ' w l 1 a z u r S i m v opo � n u dr i � H tz - ® 'y 8 y H t4 _ `..4 s� r - N € I m ► a m LIGHT & POWER DEPARTMENT LOCOON. SYSTEM FIBER OPTIC SYSTEM VERNON BACKBONE o ISSUED FOE' to to ABN GAR OPTICAL NETWORK NO. REVISION A APP D CHK BY E—S4T-11O-0 SHORT FORM IRU-07.2 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-07.2 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-07.2 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 10 th day of May , 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 C. R. LAURENCE INTERNATIONAL, INC. (hereinafter referred to as "CUSTOMER"), a California corporation with offices at 2503 Vernon Avenue, Vernon, California 90058, which are sometimes referred to individually as "Party" and collectively as "Parties." Upon execution, this IRU-07.2 Agreement shall become a part of the master agreement entitled Optical Fiber Use Agreement ("Agreement") dated May __LQ, 2010. Each term used in this IRU-07.2 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-07.2 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 less than 0.50 fiber strand miles of certain Cable System components between CUSTOMER's buildings located at 2503 Vernon Avenue and 2450 Vernon 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-07.2 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-07.2 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: Fiber strand numbers 3 and 4 of the Cable System terminating in each Customer Facility and dedicated for CUSTOMER°s exclusive use, as identified in HtU-07.2-Schedule-E. The above -described individual Cable System components collectively shall be the Customer System for this IRU-07.2 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, 3. 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-07.2 Agreement. The CITY shall use commercially reasonable efforts to comply with the project schedule that is attached hereto as IRU-07.2-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-07.2 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-07.2 Agreement as meeting the specifications set forth in the attached IRU-07.2- Schedule-D, determined in accordance with the acceptance testing plan as described in Section 27 of the Agreement (the "Commencement Date"). The -2- length of the Term for this IRU-07.2 shall be three years from the Commencement Date. 4. Obligations of the CITY. The CITY shall provide the following items for the Customer System: 4.1 A Demarcation Point at each CUSTOMER access location; 4.2 Optical fiber cable extension segments from splice enclosure in the public right-of-way to the Demarcation Point in 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-07.2 Agreement. 6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-07.2 Agreement is attached hereto as IRU-07.2-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 Construction and installation charges shall be added to the invoice for the first quarterly payment or prorated portion thereof. CUSTOMER shall pay a onetime construction and installation charge of 4 500.00. -3- 6.2 CUSTOMER shall pay quarterly IRU fee payments of $1,140.00 based on a monthly base rate of $380.00 with the first quarterly payment due to the CITY upon CUSTOMER execution of this IRU-07.2 Agreement. However, the first payment shall be prorated and cover the period May 1, 2010 through June 30, 2010. 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-07.2-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-07.2 Agreement are set forth in IRU-07.2-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-07.2 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 $0.53 (equal to the monthly charge, $380,00, 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 -4- 7.2 The interruption is not wholly or partially the result of: 7.2.1 The acts or omissions of CUSTOMER or its agents, employees, suppliers or contractors; 7.2.2 The failure or malfunction of non -CITY equipment, facilities, or system; 7.2.3 Any circumstances or causes beyond the control of the CITY; or 7.2.4 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-07.2 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-07.2 Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof. 9. This IRU-07.2 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-07.2 Agreement effective the day and year first above written: AT�t-ST: Willard Yamaguc i, it Cl APP VE S TO FO 1 aurence S. Weiner, ii y Attorney -6- CITY OF VERNON M. M M M � I I � � _M- CUSTOMER By: - 6ZL Print Name: 4. &�� I. , Title: C `� (e f F.1 C , r,'d LIM Print Name: Title: IRU-07.2-Schedule-A MAINTENANCE AND REPAIR RATES Char eg_s 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-07.2-Schedule-B SAMPLE QUARTERLY INVOICE This sample IRU-07.2 Agreement Invoice provides a summary of the quarterly charges under this IRU-07.2 Agreement at the time of execution. miles) Customer Facilities: 2503 Vernon Avenue and 2450 Vernon, Vernon, CA Approximate Length of Fiber Optic Strand: (Less than 0.50 (0.32) Fiber strand ITEM Description IRU Fees 1 Quarterly IRU-07.2 Base Charges $1,140.00 (July 2010 through September 2010) ($3 80.00/month x 3 months = $1,140.00) (2) Fiber strands x 0.50 strand miles x $180/mile = $180.00 (4) Fiber ports x $50/port = $200.00 $380.00 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-07.2 Agreement Fees $ 1,140.00 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 IRU-07.2-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-07.2 Agreement are $1,140.00. That amount is calculated on the basis of the following rounded costs: A. $ 180.00 per Fiber strand mile (0.50) per month (3) for the first two Fiber strands (2); plus B. $ 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. For any service agreement, the backbone monthly Services charge is based on a minimum length of 0.5 miles of fiber strand which corresponds to $380.00 per month. 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 Charge/Fiber Each $400 B. Service Deletion: Fiber Count Charge/Fiber Each $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-07.2-Schedule-A plus a fifteen (15) percent overhead charge. The parties shall agree in writing before proceeding with such work. C-3 IRU-07.2-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. 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-07.2 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-07.2 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 0.5 dB/Km Maximum attenuation, 1550nni 0.4 dB/Km Cladding diameter 125 +/- 3 um Core diameter 8.3 um Cutoff Wavelength 1250 +/- 100 nm Zero dispersion wavelength 1310 +/- 12 nm Maximum dispersion (1285-1330 nm) 3.5 ps/ (nm-km) 3.2 Splice Loss Splice loss on CITY cables will average less than or equal to 0.15 dB for all splices the CITY makes under this IRU-07.2 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 ][FLU-07.2 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-07.2-Schedule—D. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 l RU-07.2-Schedule-E MAP OF CUSTOMER SYSTEM m jr m 0 mmm yy� ��PP5511 8 BTfiEET. 'V A C... 'AA y ALAM EOA ❑ 4 � a Ro❑E. p BTRec-r m rn m M ly1 Z HnYrtHORNE - � (�� y� O �1 mm o yy m �. �i gT. CFIAw LE6 BAOO BT. y � N m .p Ln � IRYING BT. m m � O Ca C 9P.NTA FE-AVENUE iV n rr n vENNE <N fl: D x A P W � � �EvaRp m n a x 4- I m N 1y !y Cq cn z m CA m a hej C7 � HVENUE epv.... A.VENu �. r m < m m B�YG 9TREE7 z z Z Z r O 0 Z Z �� Q d S m o n _ i - _. ,y m c AVENUE Q: 0: C re 6m N p C E 01 G 91ERRA PINE AVENU .m A y m LIGHT & POWER DEPARTMENT LOCAnaN FIBER OPTION SYSTEM RU-07.2 FIBER STANDS LEASED TO C.R. LAURENCE CO., INC. 0 Ri9DSD FOR'REVEW 1O Z7 09 ARN GAR NO. REVISION DATE APP D CHK BY E--S4T-094-0 Construction Start Date: Construction Completion Date System Testing: 1RU-07.2-Schedule-F PROJECT SCHEDULE May 11, 2010 May 13, 2010 May 13, 2010 Available for Customer System Use: May 14, 2010 IRU-07.2-Schedule-G CITY'S CABLE SYSTEM MAP r m � ; Z yeom■� .: � GL 0 6 ■ moo 0000 a 'IIr^III y Z w • � � 6-J 3. a O ! 0 G f � 0 t� r A (� f✓+ (DD 1 LIGHT & POWER DEPARTMENT LOCATION; SYSTEM FIBER OPTIC SYSTEM VERNON BACKBONE 0 TSSm FOR 2 18 10 ABN GA6 OPTICAL NETWORK N0. REVISIONA APP D CHK BY E—S4T-110-0 EXHIBIT B EXHIBIT "B" TROUBLE -REPORTING PROCEDURE M140.11b.111 . VICIMIT "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. RECEIVEO MAY 0 3 2010 STAFF REPORT LIGHT & POWER CITY CLERK'S OFFIGE DATE: April 29, 2010 TO: Honorable Mayor and City Council FROM: Donal O'Callaghan, Director of Light & Power RE: OPTICAL FIBER USE AGREEMENT No. 7 - C. R. Laurence International, Inc. - 2503 VERNON AVENUE Purpose: To enter into a five year term service agreement with C. R. Laurence International 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. 7 with C. R. Laurence International Inc., and the related Short Form IRU-07.1 and Short Form IRU-07.2 Indefeasible Right of Use Agreements and the Agreements are addressed on the May'10, 2010 City Council Agenda. Upon approval, the construction will commence. Fiscal Impact: The Optical Fiber Use Agreement with C. R. Laurence International Inc. will generate $67,416 in the first five years. The City's initial cost for the lateral extensions is $14,800. 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 3 APR 2 9 2010 SUPPLEMENTAL INFORMATION The following pages are not part of the agenda packet. 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: April 28, 2010 suBJECr: Agreements with C.R. Laurence International, Inc. for Use of Dark Fiber Optic Network — Approved as to Form The City Attorney's Office has reviewed the Optical Fiber Use Agreement between the City of Vernon and C.R. Laurence International, Inc., and the related Short Form IRU-07.1 and IRU- 07.2 Agreements, and has approved them as to form. 12720-0007\1225161v1.doe DATE: April 27, 2010 TO: Donal O'Callaghan, Director of Light & Power FROM: Ali Nour, Engineering Manager�2 SUBJECT: Optical Fiber Use Agreement — C.IL Laurence International Inc. -2503 Vernon Avenue The Light and Power Department Engineering Division has been approached by C. R. Laurence International Inc. to interconnect their computer networks or telephone systems across multiple locations within the City limits using the City's Dark Fiber Network. C. R. Laurence Company has an existing expired dark fiber lease agreement signed in 2004 for two existing buildings and now has requested a new master agreement covering three buildings. The existing expired Master Agreement term is on a month to month basis. The Dark Fiber Services revenue for this service in the first five year term covering three buildings interconnection will be $67,416 and the Internet revenue will be an additional $24,900. Both projects will generate $92,100 gross revenue during the first five year term. The construction cost to interconnect CRL's new building is $4,500 and will be fully billable. The other connection for their two existing buildings was built in 2004 and is currently fully functional. Should you need additional information, please let me know. ARN/ C: Project Control Document Control — Dark Fiber Lease Agreements APR 2, 9 2010 I