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Resolution No. 2011-044RESOLUTION NO. 2011-44 A RESOLUTION OF THE CITY COUNCIL OF THE'CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SHORT FORM IRU-07.3 AND IRU-07.4 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, Inca ("C.R. Laurence"); and WHEREAS, on May 10, 2010, the City Council of the City of Vernon adopted Resolution No. 2010-55 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 with C.R. Laurence; and WHEREAS, C.R. Laurence has requested to expand their leased fiber optic network; and WHEREAS, the City and C.R. Laurence have negotiated Short Form IRU-07.3 and IRU-074 Agreements to allow C.R. Laurence the specific use of 2.41 and 1.82 fiber strand miles of certain Cable System components between C.R. Laurence buildings located at 2450 Vernon Avenue and 2200 E. 55th Street ("Short Form IRU-07.3 Agreement") and between C.R. Laurence buildings located at 3810 Ross Street and 2200 E. 55th Street ("Short Form IRU-07.4 Agreement"), collectively referred to herein as the "Agreements"; and WHEREAS, by memo dated March 23, 2011, the Director of Light & Power has recommended that the City Council approve the Short Form IRU-07.3 and IRU-07.4 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 Short Form IRU-07.3 and Short Form IRU-07.4 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. 2 SECTION 5: The City Council of the City of Vernon hereby directs the City Clerk, or the City Clerk's designee, to send one of each of the two fully executed Agreements to: 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 5th day of April, 2011. d 9 Name: Hilario Gonzales Title: Mayorpro— , _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. 2011-44, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, April 5, 2011, and thereafter was duly signed by the Mayor or Mayor Pro-Te of the City of Vernon. Executed this day of April, 2011, at Vernon, California. illar G. t uchVCity Clerk (SEAL) 4 EXHIBIT A SHORT FORM IRU-07.3 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-07.3 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-07.3 Agreement") is made, entered into and executed in duplicate originals, either copy of which may be considered as the original hereof for all purposes, as of this day of , 20_ (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 COMPANY (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-07.3 Agreement shall become a part of the master agreement entitled Optical Fiber Use Agreement ("Agreement") dated , 20_. Each term used in this IRU-07.3 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- 07.3 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 2.41 fiber strand miles of certain Cable System components between CUSTOMER's buildings located at 2450 Vernon Avenue and 2200 E. 55TH 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: , 1. Recitals. The Parties to this IRU=07.3 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-07.3 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: -1- Fiber strand numbers 7 and 8 of the Cable System terminating in each Customer Facility and dedicated for CUSTOMER's exclusive use, as identified in IRU-07.3-Schedule—E. The above -described individual Cable System components collectively shall be the Customer System for this IRU-07.3 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-07.3 Agreement. The CITY shall use commercially reasonable efforts to comply with the project schedule that is attached hereto as IRU-07.3-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-07.3 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-67.3 Agreement as meeting the specifications set forth in the attached IRU-07.3- Schedule-D, determined in accordance with the acceptance testing plan as described in Section 27 of the Agreement (the "Commencement Date"). The length of the Term for this IRU-07.3 shall be three years from the Commencement Date. -2- 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 fber 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-07.3 Agreement. 6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-07.3 Agreement is attached hereto as IRU-07.3-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 onetime construction and installation charge of $7,800.00. 6.2 CUSTOMER shall.pay quarterly IRU fee payments of $3,202.80 based on a monthly base rate of $1,067.60 with the first quarterly payment due to the CITY upon CUSTOMER execution of this IRU-07.3 Agreement. -3- 6.3 If CUSTOMER requests additional connection or disconnection services in writing, CUSTOMER shall pay for each additional service the fees stated in Section 2.2 of IRU-07.3-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-07.3 Agreement are set forth in IRU-07.3-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-07.3 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 $1.48 (equal to the monthly charge, $1,067.60, 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. 7.2.1 The acts or omissions of CUSTOMER or its agents, employees; suppliers or contractors; -4- 7.2.2 The failure or malfunction of non -CITY equipment, facilities, or system; 7.2.3 Any circumstances or causes beyond the control of the CITY; or 7.2.4 Scheduled maintenance or alteration, or the completion of such maintenance or alteration beyond normal time requirements. 7.3 All of the Credit Allowances will accumulate during a calendar year and be credited against. the CUSTOMER's invoice for the first quarter of the next calendar year; provided, however, that Credit Allowances will be paid in cash if any are outstanding at the end of the Term. 8. This IRU-07.3 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-07.3 Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof. 9. This IRU-07.3 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-07.3 Agreement effective the day and year first above written: ATTEST: WILLARD G. YAMAGUCHI, City Clerk AS TO FORM: 11 AMLARD G: Interim City J R L- CITY OF VERNON Un HII.ARIO GONZALES Mayor CUSTOMER Print Name: E . F►,<<'9 P Title: By: Print Name: 41" .0 ('1pV- Title: C FC)' IRU-07.3-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 anytime 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-07.3-Schedule-B SAMPLE QUARTERLY INVOICE This sample IRU-07.3 Agreement Invoice provides a summary of the quarterly charges under this IRU-07.3 Agreement at the time of execution. Customer Facilities: 2450 Vernon Avenue and 2200 E. 55TH Street, Vernon, CA Approximate Length of Fiber Optic Strand: (12,720' or 2.41 Fiber strand miles) ITEM Description IRU Fees 1 Quarterly IRU-07.3 Base Charges $ 3,202.80 (April 2011 through June 2011) ($1,067.60/month x 3 months = $35202.80) (2) Fiber strands x 2.41 strand miles x $180/mile = $867.60 (4) Fiber ports x $50/port = $200.00 $1, 067.60 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-07.3 Agreement Fees $ 3,202.80 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. Emil IRU-07.3-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-07.3 Agreement are $3,202.80. That amount is calculated on the basis of the following rounded costs: A. $ 180.00 per Fiber strand mile (2.41) 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. 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-07.3-Schedule-A plus a fifteen (15) percent overhead charge. The parties shall agree in writing before proceeding with such work. C-3 IRU-07.3-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-07.3 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-07.3 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, 1550nm 0.4 dB/Km Cladding diameter 125 +/- 3 um Core diameter Cutoff Wavelength Zero dispersion wavelength Maximum dispersion (1285-1330 nm) 3.2 Splice Loss 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-07.3 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-07.3 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 OSF 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-07.3-Schedule-D. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 IRU-07.3-Schedule-E MAP OF CUSTOMER SYSTEM Construction Start Date: Construction Completion Date: System Testing: IRU-07.3-Schedule-F PROJECT SCHEDULE April 18, 2011 April 22, 2011 April 22, 2011 Available for Customer System Use: April 29, 2011 Ir IRU-07.3—Schedule—G O O® m CITY'S CABLE SYSTEM MAP Z m d p C I" N N 1 I I ; �S r m r p m m Im zrn c��_..--_ a 1 Fn � n I 24.a w a' a � m i m m; m @n dh r� m V X? 9 g'` 0 a {° LIGHT & POWER DEPARTMENT LOCAMN: CITY OF VERNON FIBER OPTIC SYSTEM 1 REV DIG TO SHOD ERU-7.3 & 7.4 3 3 11 ARN GAR VERNON BACKBONE 0 ISSUED FOR REM 2 16 10 ARN GAR OPTICAL NETWORK NO. REVISION DATE APPV D CHK BY E-S4T-110-1 SHORT FORM IRU-07.4 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-07.4 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-07.4 Agreement") is made, entered into and executed in duplicate originals, either copy of which may be considered as the original hereof for all purposes, as of this day of , 20_ (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 COMPANY (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-07.4 Agreement shall become a part of the master agreement entitled Optical Fiber Use Agreement ("Agreement") dated , 20_. Each term used in this IRU-07.4 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- 07.4 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 1.82 fiber strand miles of certain Cable System components between CUSTOMER's buildings located at 3810 Ross Street and 2200 E. 55TH 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: 1. Recitals. The Parties to this IRU-07.4 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-07.4 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: 6! Fiber strand numbers 86 and 87 of the Cable System terminating in each Customer Facility and dedicated for CUSTOMER's exclusive use, as identified in IRU-07.4-Schedule—E. The above -described individual Cable System components collectively shall be the Customer System for this IRU-07,4 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-07.4 Agreement. The CITY shall use commercially reasonable efforts to comply with the project schedule, that is attached hereto as IRU-07.4-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-07.4 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-07.4 Agreement as meeting the specifications set forth in the attached IRU-07.4- Schedule-D, determined in accordance with the acceptance testing plan as described in Section 27 of the Agreement (the "Commencement Date"). The length of the Term for this IRU-07.4 shall be three years from the Commencement Date. -2- 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-07.4 Agreement. 6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-07.4 Agreement is attached hereto as IRU-07.4-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 onetime construction and installation charge of $3,200.00. 6.2 CUSTOMER shall pay quarterly IRU fee payments of $2,565.60 based on a monthly base rate of $855.20 with the first quarterly payment due to the CITY upon CUSTOMER execution of this IRU-07.4 Agreement. -3- 6.3 If CUSTOMER requests additional connection or disconnection services in writing, CUSTOMER shall pay for each additional service the fees stated in Section 2.2 of IRU-07.4-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-07.4 Agreement are set forth in IRU-07.4-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-07.4 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 $1.19 (equal to the monthly charge, $855.20, divided by the total number of hours in an average month, 720). A "Total Service Interruption" will be -deemed to have occurred only if: 7.1 Service becomes unusable to CUSTOMER as a result of the failure of CITY equipment, facilities, or personnel used to provide the service; and 7.2 The interruption is not wholly or partially the result of. 7.2.1 The acts or omissions of CUSTOMER or its agents, employees, suppliers or contractors; -4- 7.2.2 The failure or malfunction of non -CITY equipment, facilities, or system; 7.2.3 Any circumstances or causes beyond the control of the CITY; or 7.2.4 Scheduled maintenance or alteration, or the completion of such maintenance or alteration beyond normal time requirements. 7.3 All of the Credit Allowances will accumulate during a calendar year and be credited against the CUSTOMER'S invoice for the first quarter of the next calendar year; provided, however, that Credit Allowances will be paid in cash if any are outstanding at the end of the Term. 8. This IRU-07.4 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-07.4 Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof. 9. This IRU-07.4 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-07.4 Agreement effective the day and year first above written: ATTEST: WILLARD G. YAMAGUCHI, City Clerk AS TO FORM: WILLARD G. Interim City A -6- CITY OF VERNON HILARIO GONZALES Mayor CUSTOMER h By. Print Name: i! ov g 1j F. 4::rPe5e Title: JA,Ct,,e F del koe By: — �2 Print Name: r �, E ��� Title: IRU-07.4-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-07.4-Schedule-B SAMPLE QUARTERLY INVOICE This sample IRU-07.4 Agreement Invoice provides a summary of the quarterly charges under this IRU-07.4 Agreement at the time of execution. Customer Facilities: 3810 Ross Street and 2200 E. 55TH Street, Vernon, CA Approximate Length of Fiber Optic Strand: (9,615'or 1.82 Fiber strand miles) ITEM Description IRU Fees 1 Quarterly IRU-07.4 Base Charges $ 2,565.60 (April 2011 through June 2011) ($855.20/month x 3 months = $2,565.60) (2) Fiber strands x 1.82 strand miles x $180/mile = $655.20 (4) Fiber ports x $50/port = $200.00 $855.20 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-07.4 Agreement Fees $ 2,565.60 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. R-Im IRU-07.4-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-07.4 Agreement are $2,565.60. That amount is calculated on the basis of the following rounded costs: A. $ 180.00 per Fiber strand mile (1.82) 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. 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 1 $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-07.4-Schedule-A plus a fifteen (15) percent overhead charge. The parties shall agree in writing before proceeding with such work. C-3 IRU-07.4-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-07.4 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-07.4 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, 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 inn) 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-07.4 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-07.4 Agreement: Single Mode Fiber 1310 nm and 1550 rim 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-07.4-Schedule—D. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 l RU-07.4-Schedule-E MAP OF CUSTOMER SYSTEM 0° 0 ®®I ,m Ir 0 aerri I Z O RD66 3TREk-f trQ�^f M ® 3DTH BTRE ET z W D 1 m nt ?.'TTH N m 6TREET 3'/TH um z � +„� aeni � erReEr p4 p� a288-SM �_ m g z m CRL3 Q YERNOH **,� aTTV�� AVENNE PACIFIC DDIJ LEVARD lV VERNOH 0 a w N j O tt aeTH DT. o � z M LJ Y > Q a � _ u � W 45TH 9iREET H q OHA F�y 4—H STREET vJ z y w � H ..TH O 1F�L�jj1, 49TH BT- 00 L=J r 8 © o "d n n 'A 518T STREET = rCr^) N G1 _ cRurt�.wNo VI m a 59N0 m rA 58ND erREET _ PI ,a a �4 T Q.1 a m m —RID 6TREET 0� I m 54TH STREET O 55TH STREET CRL4nc �'1G STH STREET a I I 55TH eTREEf ®TREEi STTH STREET H 298-91 � ❑ � w m � r L Q = A yu F Q 5HTH STREET m C W p D ANDER9DN IIf�I�I fr I II or C V - R m A m LIGHT h POWER DEPARTWNT LOCATION: F®ER OPTION SYSTEM ��ppRU-7:4 FIBER STRJ1NDS LEASED TO C.R. LAURENCE CO., INC. 0 ts9m FOR BE91BR OB 11w cAe NO. REVISION ..'.DATE APPV D Clij BY -S4 -1 IRU-07.4-Schedule-F PROJECT SCHEDULE Construction Start Date: Construction Completion Date: System Testing: Available for Customer System Use: April 18, 2011 April 22, 2011 April 22, 2011 April 29, 2011 m IRU-07.4—Schedule—G o 0 o® i m CITY'S CABLE SYSTEM MAP z 3 _m(Azv r-m �0a,a i � � (A o N- A O D co � Znf 'O C g O Z Oe I� 04, rn m R N D - ND° Lt I G C Z y 1y Z so Z mN� I 11 I — o S 1 1®----1 , I" I z rJ°_,::._ a $ 1 I 9 ------ - m N H 24-9 m J� f6 m m a 9d P N I � 0 t1 I s r � N 1 oo= Dy f m 9 0d '4 O d LIGHT & POWER DEPARTMENT LOCATION: CITY OF VERNON FIBER OPTIC SYSTEM I REV D11G TO SHOW 1RU-7.3 & 7.4 3 9 it ARN GAR VERNON BACKBONE 0 ISSUED FOR REVIEII 2 i 10 ARN GAR OPTICAL NETWORK NO. REVISION DATE APPV D CHK BY E-S4T-110-1 OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 April 6, 2011 C.R. Laurence Attn: Larry Komar Director of Telecommunications 2503 Vernon Avenue Vernon, CA 90058 Re: Optical Fiber Use Agreement and Short Form IRU-07.3 and IRU-07.4 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 April 5, 2011, through Resolution No. 2011-44. If you have any questions regarding this matter, please call Mr. Ali Nour, at (323) 583-8811 ext. 316. Ver truly yours, W LARD G. Y AGU I City Clerk WY:dj Enclosures c: Carlos Fandino Ali Nour Resolution No. 2011-44 Agreement File No. 11-035 F,,Cchtsivefy Industriaf SHORT FORM IRU-07.3 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-07.3 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-07.3 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 5th day of April , 2011 (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 COMPANY (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-07.3 Agreement shall become a part of the master agreement entitled Optical Fiber Use Agreement ("Agreement") dated May _10 ; 20 la Each term used in this IRU-07.3 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- 07.3 Agreement, and govern and control each Party's rights and obligations hereunder. RRCTTAT.0 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 2.41 fiber strand miles of certain Cable System components between CUSTOMER's buildings located at 2450 Vernon Avenue and 2200 E. 55TH 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: 1. Recitals. The Parties to this IRU-07.3 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-07.3 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: -1- Fiber strand numbers 7 and 8 of the Cable System terminating in each Customer Facility and dedicated for CUSTOMER's exclusive use, as identified in IRU-07.3-Schedule—E. The above -described individual Cable System components collectively shall be the Customer System for this IRU-07.3 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-07.3 Agreement. The CITY shall use commercially reasonable efforts to comply with the project schedule that is attached hereto as IRU-07.3-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-07.3 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-07.3 Agreement as meeting the specifications set forth in the attached IRU-07.3- Schedule-D, determined in accordance with the acceptance testing plan as described in Section 27 of the Agreement (the "Commencement Date"). The length of the Term for this IRU-07.3 shall be three years from the Commencement Date. -2- 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-07.3 Agreement. 6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-07.3 Agreement is attached hereto as IRU-07.3-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 onetime construction and installation charge of $7,800.00. 6.2 CUSTOMER shall pay quarterly IRU fee payments of $3,202.80 based on a monthly base rate of $1,067.60 with the first quarterly payment due to the CITY upon CUSTOMER execution of this IRU-07.3 Agreement. -3- 6.3 If CUSTOMER requests additional connection or disconnection services in writing, CUSTOMER shall pay for each additional service the fees stated in Section 2.2 of IRU-07.3-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-07.3 Agreement are set forth in IRU-07.3-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-07.3 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 $1.48 (equal to the monthly charge, $1,067.60, 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 o£ 7.2.1 The acts or omissions of CUSTOMER or its agents, employees, suppliers or contractors; -4- 7.2.2 The failure or malfunction of non -CITY equipment, facilities, or system; 7.2.3 Any circumstances or causes beyond the control of the CITY; or 7.2.4 Scheduled maintenance or alteration, or the completion of such maintenance or alteration beyond normal time requirements. 7.3 All of the Credit Allowances will accumulate during a calendar year and be credited against the CUSTOMER'S invoice for the first quarter of the next calendar year; provided, however, that Credit Allowances will be paid in cash if any are outstanding at the end of the Term. 8. This 1RU-07.3 Agreement, including all Schedules and Exhibits which attached hereto, are hereby incorporated into the Agreement, dated, J as Exhibit "A" to the Agreement. The Agreement, this IRU-07.3 Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof. 9. This IRU-07.3 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-07.3 Agreement effective the day and year first above written: AT ST: LARD G. GU City Clerk AS TO FORM: NILLARI) G. Interim City E CITY OF VERNON By:C/� /�..- HILARIO GON ALES Mayor CUSTOMER By: ► > c�� ..�.12�..�L Print Name: J k a r-- �t en ;' Title: By: Print Name: Title: C Fy IRU-07.3-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 ere IRU-07.3-Schedule-B SAMPLE QUARTERLY INVOICE This sample IRU-07.3 Agreement Invoice provides a summary of the quarterly charges under this IRU-07.3 Agreement at the time of execution. Customer Facilities: 2450 Vernon Avenue and 2200 E. 55"H Street, Vernon, CA Approximate Length of Fiber Optic Strand: (12,720' or 2.41 Fiber strand miles) ITEM Description IRU Fees Quarterly IRU-07.3 Base Charges $ 3,202.80 (April 2011 through June 2011) ($1,067.60/month x 3 months = $31202.80) (2) Fiber strands x 2.41 strand miles x $180/mile = $867.60 (4) Fiber ports x $50/port = $200.00 $1, 067.60 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-07.3 Agreement Fees $ 3,202.80 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. e IRU-07.3-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-07.3 Agreement are $3,202.80. That amount is calculated on the basis of the following rounded costs: A. $ 180.00 per Fiber strand mile (2.41) 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. 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-07.3-Schedule-A plus a fifteen (15) percent overhead charge. The parties shall agree in writing before proceeding with such work. C-3 IRU-07.3-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-07.3 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-07.3 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, 1310nrn 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 nm Maximum dispersion (1285-1330 nm) 3.5 ps/ (nrn-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-07.3 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-07.3 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-07.3-Schedule—D. AnalogVideo ideo The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 IRU-07.3-Schedule-E MAP OF CUSTOMER SYSTEM Construction Start Date: Construction Completion Date: System Testing: IRU-07.3-Schedule-F PROJECT SCHEDULE April 18, 2011 April 22, 2011 April 22, 2011 Available for Customer System Use: April 29, 2011 r m ono® m I Z 0 m O z o IT, N o � A AOmu. y. A m.InmNn g'=Dz z m m z w 5 2z o z N. -.0_ - 0. A ; z m Oo A -o m._- z :3 m - O A O D m r r - T 1 IREV DWG TO S 0 1 ISSUED NO. I RE IRU-07.3—Schedule —G CITY'S CABLE SYSTEM MAP LIGHT & POWER DEPARTMENT LOCATION: CITY OF VERNON FIBER OPTIC SYSTEM '.3 & 7.4 3 3 11 ARN GAR VERNON BACKBONE v 2 1 10 ARN GAR OPTICAL NETWORK DATE APPV D CHK BY I E-S4T-110-1 SHORT FORM IRU-07.4 Indefeasible Right of Use Agreement THIS SHORT FORM IRU-07.4 INDEFEASIBLE RIGHT OF USE AGREEMENT (herein referred to as "IRU-07.4 Agreement") is made, entered into and executed in duplicate originals, either copy of which may be considered as the original hereof for all purposes, as of this 5th day of April , 2011 (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 COMPANY (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-07.4 Agreement shall become a part of the master agreement entitled Optical Fiber Use Agreement ("Agreement") dated May _ 10 , 2010. Each term used in this IRU-07.4 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- 07.4 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 1.82 fiber strand miles of certain Cable System components between CUSTOMER's buildings located at 3810 Ross Street and 2200 E. 55TH 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: 1. Recitals. The Parties to this IRU-07.4 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-07.4 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: -I- Fiber strand numbers 86 and 87 of the Cable System terminating in each Customer Facility and dedicated for CUSTOMER's exclusive use, as identified in IRU-07.4-Schedule—E. The above -described individual Cable System components collectively shall be the Customer System for this IRU-07.4 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-07.4 Agreement. The CITY shall use commercially reasonable efforts to comply with the project schedule that is attached hereto as IRU-07.4-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-07.4 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-07.4 Agreement as meeting the specifications set forth in the attached IRU-07.4- Schedule-D, determined in accordance with the acceptance testing plan as described in Section 27 of the Agreement (the "Commencement Date"). The length of the Term for this IRU-07.4 shall be three years from the Commencement Date. da 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-07.4 Agreement. 6. Costs and Fees. An invoice setting forth a summary of the transactions under the IRU-07.4 Agreement is attached hereto as IRU-07.4-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 onetime construction and installation charge of $3,200.00. 6.2 CUSTOMER shall pay quarterly IRU fee payments of $2,565.60 based on a monthly base rate of $855.20 with the first quarterly payment due to the CITY upon CUSTOMER execution of this IRU-07.4 Agreement. -3- 6.3 If CUSTOMER requests additional connection or disconnection services in writing, CUSTOMER shall pay for each additional service the fees stated in Section 2.2 of IRU-07.4-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-07.4 Agreement are set forth in IRU-07.4-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-07.4 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 $1.19 (equal to the monthly charge, $855.20, divided by the total number of hours in an average month, 720). A "Total Service Interruption" will be deemed to have occurred only if: 7.1 Service becomes unusable to CUSTOMER as a result of the failure of CITY equipment, facilities, or personnel used to provide the service; and 7.2 The interruption is not wholly or partially the result of 7.2.1 The acts or omissions of CUSTOMER or its agents, employees, suppliers or contractors; -4- 7.2.2 The failure or malfunction of non -CITY equipment, facilities, or system; 7.2.3 Any circumstances or causes beyond the control of the CITY; or 7.2.4 Scheduled maintenance or alteration, or the completion of such maintenance or alteration beyond normal time requirements. 7.3 All of the Credit Allowances will accumulate during a calendar year and be credited against the CUSTOMER'S invoice for the first quarter of the next calendar year; provided, however, that Credit Allowances will be paid in cash if any are outstanding at the end of the Term. 8. This IRU-07.4 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-07.4 Agreement, and all Schedules and Exhibits hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof. 9. This IRU-07.4 Agreement cannot be modified except by written instrument signed by both Parties. [Signatures begin on the next page] Irbil IN WITNESS WHEREOF the Parties have executed and delivered this IRU-07.4 Agreement effective the day and year first above written: CITY OF VERNON By: HILARIO GONZXLES Mayor CUSTOMER -By,.� Print Name: bmgU e• j:-tvke Title: C �i e ( 6,-,e, P 212 By: — -(�O Print Name: Title: c ) , -6- IRU-07.4-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-07.4-Schedule-B SAMPLE QUARTERLY INVOICE This sample IRU-07.4 Agreement Invoice provides a summary of the quarterly charges under this IRU-07.4 Agreement at the time of execution. Customer Facilities: 3810 Ross Street and 2200 E. 55TH Street, Vernon, CA Approximate Length of Fiber Optic Strand: (9,615'or 1.82 Fiber strand miles) ITEM Description IRU Fees 1 Quarterly IRU-07.4 Base Charges $ 2,565.60 (April 2011 through June 2011) ($855.20/month x 3 months = $2,565.60) (2) Fiber strands x 1.82 strand miles x $180/mile = $655.20 (4) Fiber ports x $50/port = $200.00 $855.20 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-07.4 Agreement Fees $ 2,565.60 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. i� IRU-07.4-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-07.4 Agreement are $2,565.60. That amount is calculated on the basis of the following rounded costs: A. $ 180.00 per Fiber strand mile (1.82) 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. 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-07.4-Schedule-A plus a fifteen (15) percent overhead charge. The parties shall agree in writing before proceeding with such work. C-3 IRU-07.4-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-07.4 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-07.4 Agreement are not met following the notice and cure periods set forth in the Agreement, CUSTOMER shall have the remedies set forth in the Agreement, subject to all limitations on remedies and damages set forth in the Agreement. NOTHING SET FORTH HEREIN CONSTITUTES A REPRESENTATION OR WARRANTY OR GUARANTEE THAT THE CABLE SYSTEM OR CUSTOMER SYSTEM WILL MEET THE SPECIFICATIONS SET FORTH BELOW, and failure to meet the Specifications shall not be the basis for any claim by CUSTOMER for damages or other remedies, except for those remedies specifically provided for in the Agreement. 3.1 Single Mode Fiber: Parameter Specifications Units Maximum attenuation, 1310nm Maximum attenuation, 1550nm Cladding diameter Core diameter Cutoff Wavelength Zero dispersion wavelength Maximum dispersion (1285-1330 run) 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-07.4 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-07.4 Agreement: Single Mode Fiber 1310 nm and 1550 inn 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-07.4-Schedule—D. Analog Video The CITY will not warrant CUSTOMER analog video transmission within the foregoing system parameters. D-2 IRU-07.4-Schedule-E MAP OF CUSTOMER SYSTEM r m 4 *Egg m ° 8 .yQ -D � � Y RN69 STREET i �y1 L] lybR( �.O 4 a F. a 30TH STREET + U1a16 m' W G N 9'iH N N STREET 34TH � C 12 iQ STREET z 9®TH r� J -per y ZO 9 8 9 e F 26 -iM 34 N 5 w. CRL3 YERN9N 0 *T,, CY YERN- AVENUE ppCI FID SO ULEYRRD a a a w N Q 4eTH ST. L-1 x < w a u w x 45TN -TRM- Z 4 DHFI �{ 4HTH STREET 9 yJ 13 Z Q � O aeTH 49TW. STREET CA Z 0 6�7 n A n A. a 51 ST BTREET O iRtI ITLANQ '^ m ° m 52N❑ Q I^ q G saND STREET m A g u �m Q saRD 6TREET oC�m 2 m 5TREET C54TH 55TH STREET. ,I-H - STREET GRL4[]c C56TH STREET I IIIJ a � 1 1 STREET r-S'TTH @TAFFY ti sea- � ❑ � a I_ u � Q' � SS'fH STREET m IIf m ° = p m C ° o O - .4NDERSDN , •- n m A m LIGHT & POWER DEPARTMENT LMION: FIBER OPTION SYSTEM RU-1.1 FIBER STRNDS LEASED TO C.R. LAURENCE CO., INC 0 I89M FOR 02 00 11 9 GAB NO. REVISION A APPV D CHK BY -S4T-118-0 Construction Start Date: Construction Completion Date System Testing: IRU-07.4-Schedule-F PROJECT SCHEDULE April 18, 2011 April 22, 2011 April 22, 2011 Available for Customer System Use: April 29, 2011 m IRU-07.4- Schedule -G a • o® i m CITY'S CABLE SYSTEM MAP z o Amzo -�' c A xmcAm ll cormc>rnmw �[ ]I 1 - I; I I ;u ru Z Z AP ZZ - N �gMW 0;p A qa -- z� a 0�® ., ., ._. ,. ire`- Z =1 m 1 , full mr za-a A �. 1*1 O- JL` m y m �a. P N 1 A LIGHT & POWER DEPARTMENT LocnnoN: CITY OF VERNON FIBER OPTIC SYSTEM - VERNON BACKBONE 1 REV DWG TO SHOW IRU-7.3 & 7.4 3 3 11 ARN GAR OPTICAL NETWORK 0 ISSUEDFOR REVIEIf 2 1 10 ARN GAR NO. REVISION DATE APPV D CHK BY E-S4T-110-1 RECEIVED MAR .2 4 2011 ��- RECEIVED CITY CLERK'S OFFICE STAFF REPORT LIGHT & POWER DATE: March 23, 2011 TO: Honorable Mayor and City Council FROM: Carlos R. Fandino, Jr., Director of Light & Power 01, RE: Optical Fiber Use Agreement C. R. Laurence International, Inc. — 2503 Vernon Avenue PURPOSE: MAR 2 3 2011 CITY ADMINISTRATION C. R. Laurence has requested the Light & Power Department Engineering Division to expand their leased fiber optic network to a new building on 55t" Street. The existing Master Agreement has the provisions for building connection additions in the form of IRU form approvals. RECOMMENDATION: C. R. Laurence has accepted the terms and conditions of the attached two new Short Forms IRU-07.3 and IRU-07-.4. The two new forms have been reviewed and approved to form by the City's Legal Department, and recommend City Council approval at the April 5, 2011 council meeting. FISCAL IMPACT: The new addition will generate $22,339.20 annual revenue in monthly fees and the construction cost will be invoiced directly to C. R. Laurence. CRF:ARN:ah Attachments fJ i:c "A y,• "% GSFF'F:CY IMOVg CITY ATTORNEY'S OFFICE INTER -DEPARTMENT MEMORANDUM DATE: March 22, 2011 TO: Carlos Fandino, Director of Light &Power FROM: Willard G. Yamaguchi, Interim City Attorney RE: Optical Fiber Use Agreement C.R. Laurence International, Inc. - 2503 Vernon Avenue I have received and reviewed your Memorandum dated March 15, 2011, and the attachments thereto. The Short Form IRU-07.3 and IRU-07.4 Agreements are approved as to form. WY:em 9 a �j V E INTEROFFICE 4 �{ O•A ��1AR 15 2011 DATE: March 15, 2011 TO: Willard Yamaguchi, Interim City Attorney FROM: Carlos Fandino, Director of Light & Power SUBJECT:_ Optical Fiber Use Agreement — C.R, Laurence International Inc. -2503 Vernon Avenue On May 1&, 2010, the City Council adapted Resolution No. 2010-55 approving and authorizing the execution of an Optical Fiber Use Agreement and Short Forms IRU-07.1 and IRU-07.2 with C. R. Laurence International, Inc. "CRL'. The Master Agreement and the IRUs cover CRL leasing building to building fiber optic cabling system connections owned and operated by the City. C. R. Laurence has asked the Light and Power Department Engineering Division to expand their leased fiber optic network to a new building on 55TH Street. The customer has agreed to the cost and is prepared to sign two new Short Form IRU-07.3 and IRU- 07.4 Agreements. The existing Master Agreement has the provisions for building connection additions in the form of these IRU form approvals. The new addition will generate $22,339.20 annual revenue in monthly fees and the construction cost will be invoiced directly to the C. R. Laurence. Attached are two new IRUs for your review and approval as to. form. CRL has accepted the terms and conditions of these new IRUs and would like the new extensions to be completed by end of April, 2011. In order to meet their timeline request, the IRU-07.3 and IRU-07.4 must be presented and hopefully be approved on April 5', 2011 City Council meeting. Should you need additional information, please let me know. ARN/ C: Project Control Document Control — Dark Fiber Lease Agreements INTEROFFICE MEMORANDUM Light & Power Department DATE: March 7, 2011 TO: Carlos Fandino, Director of Light & Power � / 1 Engineering Manager FROM. Ali Nour, g g SUBJECT: Optical Fiber Use Agreement — C.R. Laurence International Inc. -2503 Vernon Avenue On May l&, 2010, the City Council adapted Resolution No. 2010-55 approving and authorizing the execution of an Optical Fiber Use Agreement and Short Forms IRU-07.1 and IRU-07.2 with C. R. Laurence International, Inc. "CRL". The Master Agreement and the IRUs cover CRL leasing building to building fiber optic cabling system connections owned and operated by the City. C. R. Laurence has asked the Light and Power Department Engineering Division to expand their leased fiber optic network to a new building on 55TH Street. The Division has determined that the City can expand its fiber optic network to CRL's new building and prepared a construction cost estimate and service monthly fees. The customer has agreed to the cost and is prepared to sign two new IRU-07.3 and IRU-07.4. The existing Master Agreement has the provisions for building connection additions and changes in the form of IRU form approvals. The new addition will.generate $22,339.20 annual revenue in monthly fees and the construction cost will be invoiced directly to the C. R. Laurence. Attached are two new IRUs for the City Attorney's review and approval. CRL has accepted the terms and conditions of these new IRUs and would like the new extensions to be completed by April1, 2011. In order to meet their timeline request, the IRU-07.3 and IRU-07.4 must be presented and hopefully be approved in March 15th, 2011 City Council meeting. At this point, I recommend forwarding the attached IRU-07.3 and IRU-07.4 to the City Attorney's office for review and request to place the two items for approval in the march 15th, 2011 Council Agenda. Should you need additional information, please let me know. ARN/ C: Project Control Document Control — Dark Fiber Lease Agreements