HomeMy WebLinkAbout2016-06-28 - AGENDA REPORTS - DARK FIBER LEASE AGMT (2)7�l
Agenda Item: 8
CITY OF SANTA CLARITA
Q) AGENDA REPORT
CONSENT CALENDAR
i,
CITY MANAGER APPROVAL: fAI
DATE: June 28, 2016
SUBJECT: DARK FIBER LEASE AGREEMENT WITH WILCON
DEPARTMENT: Administrative Services
PRESENTER: Benny Ives
RECOMMENDED ACTION
City Council:
1. Approve a ten-year contract with three successive periods of five years each at Wilcon's
option, allowing Wilcon to lease City dark fiber that will generate initial estimated annual
revenues for the City of Santa Clarita (City) in the amount of $72,256.
2. Authorize the City Manager or designee to execute all contracts and associated documents,
subject to City Attorney approval.
BACKGROUND
The City maintains a fiber optic (fiber) network that travels under most of the major roadways
throughout the City. This network has been incrementally constructed over the past ten years.
Much of the fiber cabling consists of 96 individual strands of fiber, of which many are used for
City operations. Any unused strands are referred to as dark fiber. Fiber is presently the fastest
medium for transmitting data.
The original purpose for the fiber network was to interconnect and manage all traffic signals and
traffic cameras in the City from the Traffic Operation Center at City Hall. However, over the
years, the reliability, performance, cost savings, and abundance of dark fiber allowed the City to
interconnect its major facilities as well, including City Hall, Transit Maintenance Facility,
Corporate Yard, Sports Complex, Central Park, and the Santa Clarita Public Libraries. By doing
so, the City streamlined key operations that service the public every day including recreation
services, transit services, building and safety services, records management, library services, and
online and voice communications. It has also allowed the City to establish a robust disaster
recovery and business continuity strategy for its data centers.
Page 1
PacketPg. 95
In 2011, City staff was approached by Freedom Telecommunications, Inc. (FTI), a dark fiber
supplier, to lease City dark fiber to close a gap in its private fiber network that traversed Santa
Clarita on its way to connect the Antelope Valley to various locations in Southern California.
Ultimately, the City and FTI agreed to a short-term "proof -of -concept" contract that the City
Council approved at its July 10, 2012, meeting.
Since the initial agreement was executed, the City has received revenues of $113,653.80, in-kind
Internet service of $67,200, and in-kind construction valued at $102,821 for expansion of the
City's fiber infrastructure. Indirectly, City residents also benefited from the contract because
FTI used the dark fiber it leased from the City to enhance the capacity and performance of
cellular service provided by cellular carriers in Santa Clarita.
In October 2013, FTI was acquired by Wilcon, a premier West Coast provider of fiber optic and
data center infrastructure. As a result of this sale, all parties agreed a new contract with Wilcon
was more appropriate.
Finalizing a new agreement will promote two of the City Council's Santa Clarita 2020 goals: 1)
Establish a revenue -generating program that utilizes existing fiber infrastructure to leverage
resources and potentially promote greater bandwidth access to the Community, and 2) Work
with the Economic Development Corporation to provide recommendations and strategies on how
to ensure high-speed Internet access to business parks. This dark fiber lease agreement has the
potential to introduce new Internet service providers, including Wilcon, who have an interest in
servicing the business communities in Santa Clarita.
Furthermore, the original fiber lease agreement proved to be successful; the lease of dark fiber
brought additional revenue to the City while not impacting the operation of the City's fiber optic
network.
Highlights of the Dark Fiber Lease Agreement
• Initial anticipated annual revenues of $72,256 based on $840 per year per fiber mile.
• Annual fiber lease rate adjustment based on CPI for the Los Angeles area.
• Initial anticipated lease of 86.02 total fiber miles.
• City maintains control and ownership of all fiber at all times.
• Lease of dark fiber is not exclusive to Wilcon.
• City may opt out of the contract without cause after ten (10) years.
ALTERNATIVE ACTIONS
1) Do not approve contract with Wilcon.
2) Other action as determined by the City Council.
Page 2
Packet Pg. 96
FISCAL IMPACT
An increase in estimated revenues for the upcoming fiscal year is forecasted to be $72,256.
However, this amount can fluctuate, dependent upon the total fiber miles leased by Wilcon.
ATTACHMENTS
Wilcon and City Dark Fiber Lease Agreement
Page 3
Packet Pg. 97
8.a
DARK FIBER LEASE AGREEMENT BETWEEN
THE CITY OF SANTA CLARITA AND
FREEDOM TELECOMMUNICATIONS, LLC DBA WILCON
This dark fiber lease agreement ("Agreement") is made and executed this day of June,
2016 ("Effective Date") between the CITY OF SANTA CLARITA, a municipal corporation
("City") and Freedom Telecommunications LLC, a Delaware limited liability company doing
business as Wilcon ("Wilcon").
RECITALS:
A. City has constructed and continues to augment and enhance within the City of Santa
Clarita an optical fiber backbone network ("Fiber Optic Network") to facilitate the provision of
high-speed, state-of-the-art telecommunications services by prospective users in both the public
and private sectors.
B. City desires to provide to Wilcon exclusive rights of use in and to certain strands of
dark fiber optic cable ("Dark Fiber"), which are defined as unused fiber optic strands in various
portions of the City's Fiber Optic Network, upon the terms and conditions set forth below.
C. City and Wilcon desire to enter into this Agreement to set forth their mutual
understanding and agreement for Wilcon's use of Dark Fiber in City's Fiber Optic Network.
THE PARTIES AGREE AS FOLLOWS:
1. CONVEYANCE OF LEASE
A. Conveyance. City hereby grants to Wilcon a lease ("Lease") to use the number of
strands of Dark Fiber along specified routes in the Fiber Optic Network between the two
demarcation points ("Assigned Fibers") set forth in the Dark Fiber Addendum attached hereto as
Exhibit A. As used in this Agreement, the term "demarcation points" shall be defined as the
connection points between City -owned dark fiber and Wilcon-owned fiber optic cable or
peripheral equipment.
B. Route Orders. Wilcon may request additional Assigned Fibers subject to City's sole
discretion and the mutual execution and delivery of a Route Order substantially in the form
attached hereto as Exhibit B (`Route Order"). Each Route Order shall identify the route,
specify the number of Assigned Fibers, and total mileage of the Route Order. Each Route Order
shall incorporate the terms and conditions of this Agreement.
2. USE OF PROPERTY
Wilcon may, during the term of this Agreement, use the Assigned Fibers, as set forth in
Section 1(A) above or obtained under Section 1(B) above, for any lawful purpose. Wilcon will
use the Assigned Fibers in compliance with all applicable government statutes, codes, ordinances,
laws, regulations, and orders of every kind and description ("Laws").
P Packet Pg. 98
8.a
3. INSTALLATION OF WILCON'S SYSTEM
A. Network Integrity. The parties expressly acknowledge and agree that, in order to
protect and maintain the integrity of the City's Fiber Optic Network, the City will plan check,
permit, and oversee the installation of all aspects of Wilcon's interconnection to the City's Fiber
Optic Network.
B. Access. Upon the Effective Date of this Agreement, City grants to Wilcon a right of
entry to City's premises to install Wilcon's fiber optic cable network and interconnection facilities
("System"). Wilcon's exercise of this right of entry is subject to such advance notification as
may be mutually agreed upon by the parties hereto. Wilcon System will be connected to Assigned
Fiber via spliced conduit in locations set forth in the applicable Route Order.
C. Permits. Prior to the start of work, Wilcon is responsible for acquiring all permits,
inclusive of encroachment permits and other agency permits, associated with this Agreement or
any interconnect plan as required by City, and must pay any and all fees associated with such
permits prior to any work being performed. Wilcon shall not proceed with any work without a
permit from the City. All fees will be according to the most current Development Services Fees
schedule.
D. Design and Construction Fiber Integration. Any or all fiber integration and fiber
splicing, including all necessary permitting and payment of inspection -related costs, must be
completed by Wilcon or subcontractor(s) in possession of a C-10 license in good standing with
the State of California and in possession of all necessary permits, licenses, inspections,
certificates, or authorizations required by any governing body or entity. A City representative
shall be present at the time of the fiber integration work and shall be notified ten (10) days prior
to any work.
4. ACCEPTANCE
A. Fiber Acceptance Testing. Prior to acceptance, Wilcon shall test the Assigned Fibers
in accordance with procedures attached hereto as Exhibit C ("Fiber Splicing and Testing
Standards, Specifications, and Procedures (FSTSSP)") to verify the Assigned Fibers are
installed and operating in accordance with specifications described in FSTSSP. Wilcon shall
provide City at least fifteen (15) days advance notice of the date and time of final end-to-end
testing for a Route Order. City shall have the opportunity to have a person or persons present to
participate in and observe Wilcon's final end-to-end testing. Within fifteen (15) days following
the conclusion of final end-to-end testing, Wilcon shall provide City with certified test results as
set forth in FSTSSP. "Acceptance Date" shall be deemed to occur upon written acceptance by
City confirming Assigned Fibers meet FSTSSP.
B. Acceptance Date Obligations. As of the Acceptance Date for each Route Order,
City shall have obtained all rights, agreements, authorizations, easements, leases, fee interests, or
agreements that provide for the occupancy of the associated route of real property or fixtures
(such as conduit, bridges, river crossings, or transmission towers) on which the route of the
Assigned Fibers is located. In the event City does not own a portion of the Assigned Fibers, City
shall have obtained (by IRU agreement, lease, or otherwise) the right to occupy the real property
or fixtures along any portion of the route it does not own. The rights City is required to obtain
P Packet Pg. 99
8.a
pursuant to this Section 4(B) are referred to as (`Required Right.") City shall maintain the
Required Right throughout the Initial Term and any extension thereof.
C. Provision of As -Built Drawings. Solely as it pertains to Route Orders that may be
entered into following the Effective Date, unless otherwise stated in each Route Order, within
fifteen (15) days after the Acceptance Date for each Route Order, Wilcon will provide City with
engineered as -built drawings.
5. TERM
A. Agreement. The term of this Agreement shall commence on the Effective Date and,
except as otherwise provided in this Agreement, shall continue in effect for a period of ten (10)
years (the "Initial Term"). Wilcon may extend the term of this Agreement, subject to
Termination as stated in Section 6, on the same terms and conditions as in effect just before the
then -current end of the term, for up to three (3) successive periods of five (5) years ("Additional
Term") each by providing written notice to City no later than one hundred eighty (180) days
before the then -current end of the term unless and until terminated pursuant to the terms of this
Agreement. If all of these extensions are exercised, this Agreement will end on Dec 31, 2041.
B. Route Orders. Notwithstanding the foregoing, the term of a Route Order shall begin
on the Acceptance Date for such Route Order. The term of a Route Order will continue until the
expiration of this Agreement.
6. TERMINATION
A. For Cause: This Agreement may be terminated without further liability on ninety (90)
days' prior written notice in the event either party fails to perform the material obligations set forth
in this Agreement or fails to maintain any license, permit, or other approval necessary for the
construction, use, or operation of the Assigned Fibers; provided that the non -defaulting party must
provide written notice of such default including reasonable detail of the default, and thirty (30)
days to cure the default. Upon the failure by the defaulting party to cure any such default, the non -
defaulting party may do any or all of the following:
(i) Terminate this Agreement and any Route Orders immediately upon written notice of
its desire to terminate;
(ii) Perform or cause to be performed such unfulfilled material obligations of the
defaulting party. The defaulting party shall reimburse the non -defaulting party of
the reasonable cost thereof, within thirty (30) days after delivery to the defaulting
party of written receipts reflecting the costs and evidencing the fulfillment of such
obligations; and/or
(iii)Pursue any legal remedies it may have under this Agreement, as well as applicable
law or principles of equity, subject to the limitations set forth in this Agreement.
B. Without Cause: This Agreement, and/or portions of particular Route Orders may be
terminated without cause as follows:
(i) By Wilcon: Notwithstanding anything in this Agreement to the contrary, in the
event that Wilcon overbuilds along any Assigned Fiber route or otherwise acquires
operational or ownership rights in another network that Wilcon may utilize to fulfill its
P Packet Pg. 100
8.a
operational requirements, Wilcon may terminate all or any portion (i.e., segments) of
any Route Order at any time upon one hundred twenty (120) days' prior written notice
to City. In the event that Wilcon exercises its right of early termination under this
Paragraph, Wilcon shall pay all Lease Fees (as defined below) due through the date of
termination for the terminated Route Order or any portion (it seeks to terminate) of the
applicable Route Order with no further liability except as otherwise provided for in this
Agreement. In addition, Wilcon will return all Assigned Fibers to a satisfactory
condition and remove any Wilcon insignia used to identify Assigned Fibers.
(ii) By Cites Notwithstanding anything in this Agreement to the contrary, the City may
terminate all or any portion (i.e., segments) of any Route Order at any time (i) upon
one hundred twenty (120) days' prior written notice to Wilcon in the event it becomes
technologically, or legally infeasible in City's commercially reasonable judgment to
maintain such Route Order; or (ii) at any time without restriction during the Additional
Terms upon one hundred eighty (180) days' notice.
7. PRICING AND PAYMENT TERMS
A. Fiber Pricing. During the Initial Term, the monthly recurring charge ("MR(") for
fiber segments leased under this Agreement and applicable Route Orders shall be
$70/Fiber Mile/Month. With respect to the Assigned Fibers leased by Wilcon, which
is identified in Exhibit A hereto, beginning on the second year anniversary of the
Effective Date of this Agreement and every year thereafter, the MRC shall be adjusted
by the annual percent change for the Consumer Price Index -All Urban Consumers
("CPI U„) for the Los Angeles -Riverside -Orange County area based on April every
year. Notwithstanding the foregoing, if CPI -U is negative in any given year, the MRC
shall not be reduced. However, City grants Wilcon's request to prepay the CPI -U for
Year 2 through Year 5, attached hereto as Exhibit D ("Calculation of Prepav CPI -
U"), according to a fixed rate of 1.5% per annum for the total fiber miles identified in
Exhibit A. In recognition of the Parties agreement to establishing a fixed rate for the
pre -payment of CPI -U, such prepayment shall be non-refundable and due within thirty
(30) days of the Effective Date of this Agreement
B. "Payment Terms." Wilcon will pay City the MRC and non-recurring fees, if any,
that are specified in the applicable Route Order and Dark Fiber Addendum
(collectively, the "Lease Fees") for the applicable term of this Agreement, subject to
Section 6. Non-recurring fees are due and payable within thirty (30) days of the
execution and delivery of the Route Order. The first month's recurring Lease Fees are
due and payable on the 30"' day after the Acceptance Date of a Route Order. All
subsequent monthly recurring Lease Fees for a Route Order or Dark Fiber Addendum
are due and payable in advance on the first of each month. Failure to make payment
per the Payment Terms defined, shall result in a 1.5% late fee. Penalty and bank
charges will also be assessed for any payments returned by the bank
8. TAXES AND ASSESSMENTS
Wilcon shall pay all possessory interest taxes and other taxes, fees, and assessments
attributable to Wilcon's use of the Assigned Fiber.
P Packet Pg. 101
8.a
9. ACTIVATION
Wilcon has sole responsibility for the activation of the Assigned Fiber and interconnection
facilities and payment of all utilities that are required for such operation.
10. REPAIR AND MAINTENANCE
A. If any portion of the Assigned Fibers is damaged during Wilcon or the City's use, it
is Wilcon's responsibility to repair and restore the Assigned Fibers at no cost to the City.
B. If any emergency or unscheduled repairs to City's Fiber Optic Network utilized by
Wilcon are determined to be attributable to the fault of Wilcon, or of its employees or agents,
Wilcon shall repair or pay all such repair costs incurred by Wilcon or the City.
C. City shall provide to Wilcon, its employees, agents, contractors, and
subcontractors, access to its premises to the extent required to inspect, maintain, and repair the
Assigned Fiber and interconnection facilities located within the City's right-of-way provided that
Wilcon shall avoid performing maintenance between 0600-2000 local time, unless otherwise approved
in advance by the City. The preceding sentence does not apply to restoration of continuity to a severed
or partially severed fiber optic cable or correction of any potential jeopardy conditions. Wilcon shall
provide City with written notice of all non -emergency planned maintenance no later than fourteen (14)
business days prior to performing maintenance.
D. City shall provide Wilcon at least fourteen (14) business day's prior written
notice of any preventative, routine, or scheduled maintenance by City on any fiber optic cable
and/or conduit/innerduct that may contain Assigned Fibers. City shall avoid performing
maintenance between 0600 — 2000 local time.
E. City shall contact Wilcon in the event of accidental or unscheduled service
disruption to coordinate emergency repair work and/or to inform Wilcon of the nature, extent, and
expected duration of that work. At no time shall the City reimburse or credit Wilcon for any
downtime or loss of revenue caused by City's planned or unplanned maintenance related to fiber
construction or relocation.
11. RELOCATION OF CITY'S FIBER OPTIC NETWORK
A. Should all or any portion of the City's Fiber Optic Network be relocated during the
term of this Agreement, in all circumstances Wilcon shall be responsible for relocating Wilcon's
interconnected facilities used in connection with the use of the Assigned Fibers. City will be
responsible for all costs to relocate City's Fiber Optic Network (and therefore any Assigned
Fibers).
B. In all non -emergency situations, City will give Wilcon a minimum of sixty (60) days
notice of City's intention to relocate its Fiber Optic Network.
12. TITLE TO THE FIBER OPTIC NETWORK
Wilcon acknowledges and agrees that title to City's Fiber Optic Network, including the
Assigned Fiber and associated City -owned interconnection facilities, will at all times remain
P Packet Pg. 102
8.a
exclusively with the City. Wilcon shall assert no adverse claim to such title. Any and all fibers,
cables, conduits, pullboxes, and related infrastructure constructed/installed by Wilcon as set forth in
Section 3 will be owned by the City. At City's discretion, Wilcon may be reimbursed for the said
construction costs.
13. ASSIGNMENT
Wilcon will not be permitted to assign this Agreement or any interest therein without the
prior written consent of City. Notwithstanding the foregoing, Wilcon shall have the right, without
the City's consent, but with prior written notice to the City, to assign or otherwise transfer this
Agreement and any Route Order hereunder (i) as collateral to any institutional lender of Wilcon
subject to the prior rights and obligations of Wilcon hereunder; and (ii) to any affiliate of Wilcon, or
to any entity into which Wilcon may be merged or consolidated or which purchases all or
substantially all of the assets of Wilcon.
14. INDEMNIFICATION
Wilcon agrees to and shall defend, indemnify, and hold City, its officers, agents,
employees, and representatives harmless from all suits and causes of action, claims, charges,
damages, demands, judgments, civil fines, and penalties or losses of any kind or nature whatsoever,
arising out of this Agreement for all claims of any kind including without limitation, for damage
or claims for damage for personal injury, including death, and claims for property damage which
may arise directly or indirectly from this Agreement or damage to Wilcon's fiber optic lines and
cables, except and to the extent caused by City's willful misconduct or criminal acts.
This indemnity and obligation to hold harmless shall apply regardless of whether or not City
prepared, supplied, or approved plans or specifications or inspected any of the work or
improvements installed and constructed pursuant to this Agreement. Specifically, Wilcon agrees to
defend, indemnify, and hold harmless City and its officers, agents, employees, and
representatives from the following damages or claims for damages, including any damages or
claims for damages resulting from: (1) any damage or claims for damage to Wilcon's fiber optic
lines and/or cables caused by any excavation or work performed by City at or near the location of
Wilcon's facilities, (2) any indirect, special, punitive, or consequential damages (including, but not
limited to, any claim for loss of services or loss of revenue) to Wilcon, or any other person arising
from any damage to Wilcon's fiber optic lines and/or cables; and, (3) any damage or claims for
damages resulting from damage to Wilcon's fiber optic lines and/or cables caused by third persons.
In no event shall City be liable, under any theory, to Wilcon for any damage to Wilcon's
fiber optic lines and/or cables caused by any excavation or work performed by City at or near the
location of Wilcon's facilities except and to the extent caused by City's willful misconduct or
criminal acts. City shall not be liable, under any theory, to Wilcon for any indirect, special
punitive, or consequential damages (including, but not limited to, any claim for loss of services)
nor shall City be liable, under any theory, for damage to the fiber optic lines and/or cables caused
by any other persons. The provisions of this section shall survive the termination of this Agreement.
15. INSURANCE
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, Wilcon will procure and maintain the following types of insurance with
P Packet Pg. 103
8.a
coverage limits complying, at a minimum, with the limits set forth below:
Type of Insurance Limits (Combined Single)
Commercial General Liability $1,000,000
Workers Compensation Statutory limits
B. Commercial general liability insurance will meet or exceed the requirements of the
most current ISO Forms. The amount of insurance set forth above will be a combined single
limit per occurrence for bodily injury, personal injury, and property damage for the policy
coverage. Liability policies must be endorsed to name City, its officials, and employees as
"additional insureds" under said insurance coverage and to state that such insurance will be
deemed "primary" such that any other insurance that may be carried by City will be excess
thereto. Such insurance will be on an "occurrence," not a "claims made," basis and will not be
cancelable except upon thirty (30) days' prior written notice to City, except for nonpayment of
premiums which may be cancelable upon ten (10) days' notice.
C. Wilcon will furnish to City duly authenticated Certificates of Insurance and
Endorsements evidencing maintenance of the insurance required under this Agreement and such
other evidence of insurance or copies of policies on an annual basis and as may be reasonably
required by City from time to time. Insurance must be placed with insurers with a current A.M.
Best Company Rating equivalent to at least a Rating of "A: VII." Certificate(s) must reflect that
the insurer will provide thirty (30) days' notice of any cancellation of coverage. Wilcon will
require its insurer to modify such certificates to delete any exculpatory wording stating that
failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete
the word "endeavor" with regard to any notice provisions.
D. Should Wilcon, for any reason, fail to obtain and maintain the insurance required
by this Agreement, City may obtain such coverage at Wilcon's expense and deduct the cost of
such insurance from payments due to Wilcon under this Agreement or terminate. In the
alternative, should Wilcon fail to meet any of the insurance requirements under this Agreement,
City may cancel the Agreement immediately with no penalty.
E. Should Wilcon's insurance required by this Agreement be cancelled at any point
prior to expiration of the policy, Wilcon must notify City within 24 hours of receipt of
notice of cancellation. Furthermore, Wilcon must obtain replacement coverage that meets
all contractual requirements within ten (10) days of the prior insurer's issuance of notice of
cancellation. Wilcon must ensure that there is no lapse in coverage.
16. WAIVER OF DAMAGES
In no event will a party be liable to the other party for any direct, consequential, incidental,
indirect, liquidated, or special damages, or for lost revenues, lost profits, or inconvenience
incurred by a party, attributable to or arising out of the performance or nonperformance of any
provisions of this Agreement, even if the party seeking to impose liability has informed the other
party of the possibility of those damages.
17. FORCE MAJEURE
If either City or Wilcon is delayed in or prevented from the performance of any act
required under this Agreement by reason of acts of God, governmental restrictions, regulations,
P Packet Pg. 104
8.a
or controls, or by any other cause that is without fault and beyond the control of the party
obligated (excluding financial incapacity), then the performance of that act will be excused for
the period of the delay, and the period for the performance of that act will be extended for a
period equivalent to the period of that delay; provided, however, that the party claiming such delay
notifies the other party in writing of such cause of delay within ten (10) days of the commencement
of the delay. Nothing in this section shall excuse Wilcon from the prompt payment of any
installation costs, license and maintenance fees, taxes, or any other charges that are required of
Wilcon under this Agreement
18. PROHIBITED ACTIVITIES
Wilcon is prohibited from engaging in any of the following activities during the term of
this Agreement and City shall have the power to terminate this Agreement in the event any of the
following occur:
A. Any unpermitted activity that encroaches upon or interferes with the City's rights-of-
way, public utility easements, or public service easements that are used in connection with the
operation of the City's Fiber Optic Network including the Assigned Fiber and interconnection
facilities; and/or
B. Any activity that interferes with the City's rights and obligations to design, construct,
operate, monitor, manage, maintain, repair, or modify the Fiber Optic Network.
19. BREACH OF AGREEMENT
In the event either party fails to perform the obligations set forth in this Agreement, the non -
defaulting party must provide written notice of such default, including reasonable detail of the
default and thirty (30) days to cure the default. Upon the failure by the defaulting party to cure any
default in accordance with this Section, the non -defaulting party may do any or all of the following:
A. Terminate this Agreement and any and all Dark Fiber Addendums and Route Orders
immediately upon written notice of its desire to terminate;
B. Perform or cause to be performed such unfulfilled obligations of the defaulting party. The
defaulting party shall reimburse the non -defaulting party of the reasonable cost thereof,
plus interest at the rate of ten percent (10%) per annum, within thirty (30) days after
delivery to the defaulting party of written receipts reflecting the costs and evidencing the
fulfillment of such obligations; and/or
C. Pursue any legal remedies it may have under this Agreement, as well as applicable law or
principles of equity, subject to the limitations set forth in this Agreement.
20. WAIVER OF BREACH
Any express or implied waiver of a breach of any term of this Agreement will not constitute
a waiver of any further breach of the same or other term of this Agreement.
P Packet Pg. 105
8.a
21. ENTRY BY CITY AND PUBLIC
This Agreement does not convey any property interest to Wilcon. Except for areas restricted
because of safety concerns, City and the general public will have unrestricted access upon property
for all lawful acts.
22. NOTICES
Except as otherwise expressly provided by law, all notices or other communications required
or permitted by this Agreement or by law to be served on or given to either party to this
Agreement by the other party will be in writing and deemed served when personally delivered to the
party to whom they are directed, or in lieu of the personal service, upon deposit in the United States
mail, certified or registered mail, return receipt requested, postage prepaid, addressed to:
IF TO WILCON:
FREEDOM TELECOMMUNICATIONS LLC DBA WILCON
624 South Grand Avenue, Suite 2500
Los Angeles, CA 90017
Attention: Legal Department
With a copy to:
FREEDOM TELECOMMUNICATIONS LLC DBA WILCON
624 South Grand Avenue, Suite 2500
Los Angeles, CA 90017
Attention: Network Operations
IF TO CITY:
CITY OF SANTA CLARITA
23920 Valencia Boulevard, Suite 290
Santa Clarita, CA 91355
Attention: Technology Services Manager
With a copy to:
CITY OF SANTA CLARITA
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attention: City Traffic Engineer
Either party may change its address for the purpose of this Section by giving written
notice of the change to the other party.
23. ACCEPTANCE OF FACSIMILE SIGNATURES
The Parties agree that agreements ancillary to this Agreement and related documents to be
entered into in connection with this Agreement will be considered signed when the signature of a
P Packet Pg. 106
party is delivered by facsimile transmission. Such facsimile signature will be treated in all respects
as having the same effect as an original signature.
24. GOVERNING LAW
This Agreement has been made in and will be construed in accordance with the laws of the
State of California and exclusive venue, for any action involving this Agreement will be in Los
Angeles County.
25. PARTIAL INVALIDITY
Should any provision of this Agreement be held by a court of competent jurisdiction to be
either invalid or unenforceable, the remaining provisions of this Agreement will remain in effect,
unimpaired by the holding.
26. ENTIRE AGREEMENT
This instrument and its exhibits constitute the sole Agreement between City and Wilcon
respecting property, the use of property by Wilcon, and the specified Agreement term, and correctly
sets forth the obligations of City and Wilcon. Any agreement or representations respecting
property or its licensing by City to Wilcon not expressly set forth in this instrument are void.
27. CONSTRUCTION
The language of each part of this Agreement will be construed simply and according to its fair
meaning, and this Agreement will never be construed either for or against either party.
28. AUTHORITY/MODIFICATION
The Parties represent and warrant that all necessary action has been taken by the Parties to
authorize the undersigned to execute this Agreement and to engage in the actions described herein.
This Agreement may be modified by written agreement. City's City Manager, or designee, may
execute any such amendment on behalf of City.
29. CONFLICT OF INTEREST
Wilcon will comply with all conflict of interest laws and regulations including, without
limitation, City's conflict of interest regulations.
30. COUNTERPARTS
This Agreement may be executed in any number or counterparts, each of which will be an
original, but all of which together will constitute one instrument executed on the same date.
[SIGNATURES ON NEXT PAGE]
8.a
Pa Packet Pg. 107
IN WITNESS WHEREOF, the parties hereto have executed this contract the day and year
first hereinabove written.
FOR WILCON:
Glenn Nieves, Vice President - Government Affairs and Corporate Secretary
Date
FOR CITY OF SANTA CLARITA:
By:
Kenneth W. Striplin, City Manager
Date:
APPROVED AS TO FORM:
By:
Joseph M. Montes, Esq., City Attorney
Date:
8.a
P Packet Pg. 108
8.a
EXHIBIT
DARK FIBER ADDENDUM
Packet Pg. 109
MONTHLY
SEGMENT
SEOMENTID#
MAINSTREET
BETWEEN
ROUTE
FIBER
FIBER
FIBER
MBERMILE
MONTHLYLEASE
INRJALTERM
FOOTAGE
ASSIGNMENTS
COUNT
FOOTAGE
RATE
FEE
10 years from
SegmmtID No. 001
SIERRA CRY
FRIENDLY VALLEY & SOLDAD
9,428
73,74,75,76,77,78
6
56,568
$70
$74995
Elfedive Date of
CANYONROAD
A,,I,amt
10 years from
SegmmtID No. 002
SOLEDAD
SIERRA HIGHWAY & SUCKLING
1,018
62,68,69,70,71,72
6
6,108
$70
$81
Elfedive Date of
ROAD
Agreanmt
10 years from
SegmmtID No. O03
SOLEDAD
SUCKLING ROAD & SAND
10,341
73,74,75,76,77,78
6
62,0.46
$70
$823
Elfedive Date of
CANYON ROAD
Agre.mt
10yearsUom
SegmmtID No. 00.4
SAFE CANYON
SOLEDAD CANYONROAD&
5,045
73,74,75,76,77,78
6
30,270
$70
$401
Elfedive Date of
ROAD
THOMPSONRANCH
Agre.mt
10 years from
Segmmt ID. No. O05
LYONS
VTEY&60O ,C)AVE ROTELLA
4,596
49,50
2
9,192
$70
$122
Elfedive Date of
Agre.mt
10yearsfrom
Segment ID. No. 006
LYONS
600 ,C) AVE ROTELLA TO
5,847
49,50
2
11,694
$70
$155
Elfedive Date of
RAILROAD & 13TH STREET
Agreanmt
10 years from
13TH STREET (LYONS) &OAK
Segment ID. No. O07
RAILROADRIDGE
6,4&4
49,50
2
12,968
$]0
$172
Elfedive Date of
Agre.mt
10 years from
Segmmt ID. No. 008
ORCHARD
WILEY&PIC BEAR
2,902
49,50
2
5,804
$70
$77
Elfedive Date of
Agre.mt
10 years from
Segmmt ID. No. 009
PIC BEAR
ORCHARD&ROCKWELL
3,671
49,5 0,51,52
4
14,684
$70
$195
Elfedive Date of
Agre.mt
10 years from
Segmmt ID. No. 010
PIC BEAR
ORCHARD&VALENCIA
6,923
49,50
2
13,&46
$70
$1&4
Elfedive Date of
Agre.mt
10 years from
Segmmt ID. No. 011
VALENCIA
MCBEAN TO CASO VALENCIA
1,550
49,5 0,51,52
4
6,200
$70
$82
Elfedive Date of
Agre.mt
10 years from
Segmmt ID. No. 012
RYECANYON
600 ITO CROCKER to DECORO
6,813
49,50
2
13,626
$70
$181
Elfedive Date of
Agre.mt
Segmmt ID. No. 013
DECORO
COPPER HILL DRIVE &MCBEAN
4,817
49,50
2
9,634
$70
$128
Elfedive Date of
10 years from
Segmmt ID. No. 014
PIC BEAR
DECORO & FAIRVIEW
3,830
49,50
2
7,660
$70
$102
Elfedive Date of
Agreemmt
10 years from
Segmmt ID. No. 015
PIC BEAR
FAIRVIEW &NEWHALL RANCH
1,334
49,50
2
2,668
$70
$35
Elfedive Date of
Agreemmt
10 years from
Segmmt ID. No. 016
NEWHALL
PIC BEAR &BRIDGEVIEW LANE
1,160
49,50
2
2,320
$70
$31
Elfedive Date of
RANCH
Agreemmt
10 years from
Segmmt ID. No. 017
NERNALD
BOUQUET&EIRLHOUSE
2,724
49,50
2
5,448
$70
$72
Elfedive Date of
RANCHROAD
Agreemmt
10 years from
Segmmt ID. No. O18
NEWHALL
RANCHROAD
MILLHOUSE TO VALLEY CENTER
8,161
49,50
2
16,322
$70
$216
Elfedive Date of
Agreemmt
10 years from
Segmmt ID. No. 019
VALLEY
GOLDEN VALLEY ROAD &
1,748
49,50
2
3,496
$70
$46
Elfedive Date of
CENTER
SOLEDAD (BB)
Agreement
10 years from
Segmmt ID. No. O20
GOLDEN
VALLEY CENTER & CENTRE
4,272
49,50,51,52
4
17,088
$70
$227
Elfedive Date of
VALLEY ROAD
POINT
Agreemmt
10 years from
Segmmt ID. No. 021
SOLEDAD
VALLEY CENTER &RUETHER
1,769
49,50
2
3,538
$70
$47
Elfedive Date of
Agreemmt
10 years from
Segmmt ID. No. O22
SOLEDAD
RUETHER&WHTTES CANYON
9,051
49,50
2
18,102
$70
$240
Elfedive Date of
Agreemmt
10 years from
Segmmt ID. No. 023
WHTTESCYN
SOLEDAD RICO ASHBORO
10,490
51,52
2
20,980
$70
$278
Elfedive Date of
A,,emmt
10 years from
Segmmt ID. No. 024
SOLEDAD
WHTTESCYN & SIERRA CRY
5,053
49,50
2
10,106
$70
$134
Elfedive Date of
Agreemmt
10years Uom
Segmmt ID. No. 025
VIA
VIA PRINCESSA &TO'N/O SOUTH
21226
49,50,51,52
4
8,904
$70
$118
Elfedive Date of
pRINCESSA
BOUND 14O0UVO
Agreemmt
Packet Pg. 109
8.a
EXHIBIT
DARK FIBER ADDENDUM
FIBER FIBER
COUNT I FOOTAGE MBERMILE SEGMENT- TOTAL FIBER
*5,280 feet — I mile TOTAL TOTAL RATE LEASEFEE MILES
MONTHLY TOTALS: 108 959,180 $70 $ 6,021.38 86.02
YEARLY TOTALS: 108 050,180 $800 $ 72,256.55 86.02
Packet Pg. 110
MONTHLY
SEGMENT
SEGMENTID#
MAINSTREET
BETWEEN
ROUTE
FIBER
FIBER
FIBER
MBERMILE
MONTHLYLEASE
INITIALTERM
FOOTAGE
ASSIGNMENTS
COUNT
FOOTAGE
RATE
FEE
10 years from
Segment ID. No. 026
SIERRA HWY
FRIENDLY VALLEY & SOLEDAD
9,428
79,80
2
18,856
$70
$250
Effedive Date of
CANYON ROAD
Agreement
10 years from
Segment ID. No. OZ]
SAND CANYON
SOLEDAD CANYON ROAD &
5,045
79,80
2
10,090
$70
$134
Effective Date of
ROAD
THOIVIPSON RANCH
Agreement
10 years from
SegmmLID. No. 028
EWHALL
IT
RYE CANYON AND RYE CANYON
822
49,50,51,52
4
3,288
$70
MY
Effective Date of
RANCHROAD
POINT
Agreement
10 years from
Segment ID. No. 029
SCVNINE 12
VIA PRINCESSA AND OAK RIDGE
M
1,2
2
128
$70
$2
Effective Date of
Agreement
10 years from
Segment ID. No. 030
SCVNINE 13
VTEY AND VIA PACIFICA
139
1,2
2
278
$70
$4
Effective Date of
Agreement
10 years from
Segment ID. No. 031
SCVNINE 14
WILEY AND ORCHARD
143
1,2
2
286
$70
$4
Effective Date of
Agreement
10years from
Segment ID. No. 032
OAKRIDOE
RAILROAD AVE &WILEY
1,630
1,2
2
3,260
$70
$43
Effective Date of
DRIVE
CANYON
Agreement
10years from
Sagmen[ID. NO G33
WILEY
(CADENCE DRIVE &VIA
21843
1,2
2
5,686
$70
$75
Effective Date of
CANYON
PACIFICA
Agreement
10 years from
Sagmen[ID. NO 034
WILEY
VIA PACIFICA & ORCHARD
1,848
1,2
2
3,696
$70
$49
Effective Date of
CANYON
Agreement
10years from
Sagmen[ID. NO G35
NEWHALL
BRIDGEVIEW LANE&BOUQUET
5,226
49,50
2
10,452
$70
$139
Effective Date of
RANCHROAD
CANYON
Agreement
10 years from
Segment ID. No 036
NEWHALL
RYE CYN & DICKERSON
5,357
49,50,51,52
4
21,428
$70
$284
Effective Date of
RANCHROAD
Agreement
10 years from
Sagmen[ID. NO G37
DICKERSON
IT
EWHALL RANCH RD & SMYTH
1,075
49,50,51,52
4
41300
$70
$57
Effective Date of
DR
Agreement
10yearsfrom
SegmentID. NO G38
RYECYN
NEWHALL RANCH RD&KELLY
791
49,50,51,52
4
3,161
$70
$42
Effective Date of
POINT
JOHNSON PKWY
Agreement
FIBER FIBER
COUNT I FOOTAGE MBERMILE SEGMENT- TOTAL FIBER
*5,280 feet — I mile TOTAL TOTAL RATE LEASEFEE MILES
MONTHLY TOTALS: 108 959,180 $70 $ 6,021.38 86.02
YEARLY TOTALS: 108 050,180 $800 $ 72,256.55 86.02
Packet Pg. 110
ax
/
vr_
at.
a
sy
^
to,tlen v%ay
i
I.
II
Ha
Qa
vho
_
e
I
EXHIBIT B
ROUTE ORDER FORM
ROUTE ORDER NO. [--]
Customer: Freedom Telecommunications. LLC dba Wilcon
Service: Dark Fiber
Order Date: 120
This Route Order (`Route Order") is entered into pursuant to that certain Dark Fiber Lease Agreement by and
between the City of Santa Clarita and Freedom Telecommunications, LLC dba Wilcon (the "Agreement'). Capitalized terms
used but not otherwise defined herein shall have the meanings set forth in the Agreement.
1. Description of Assigned Fibers:
[Insert number of fiber strands] (_) strands of single mode fiber terminating at the following demarcation points
A -LOC
Z -LOC
Site Name:
Site Name:
Street Address:
Street Address:
Note:
Note:
2. Total Route Miles:
3. Total Fiber Miles:
4. MRC:
5. Route Order Term:
6. Preliminary Route Map.
[to be inserted]
3. Schedule of Estimated Completion Dates: [insert number of days] Days from execution of this Route Order
7. Additional Terms: [insert if any]
Freedom Telecommunications, LLC dba Wilcon
By:
Name:
Title:
Date:
City of Santa Clarita
By:
Name:
Title:
Date:
8.a
P Packet Pg. 112
8.a
EXHIBIT C
FIBER SPLICING AND TESTING STANDARDS,
SPECIFICATIONS, AND PROCEDURES
1. Fiber and Connector Standards
1.1 Connector Standards
City shall use connectors with a UPC polish. The loss value of any pigtail connector and
any associated fiber jumper or pigtail with matching mode field diameters will not exceed
0.5dB at 1550 nm. The loss value of a connector and its associated jumper with
mismatched mode field diameters should not exceed 0.8 dB.
1.2 Field Splice Standards
All splices shall be fusion splices. The objective for each splice is an averaged loss value `w
of 0.1 dB or less when measured bi-directionally with an OTDR at 1550 nm. In the event a
of damage and subsequent restoration of the Fibers, commercially reasonable efforts will
be made to restore the Fibers to this standard. If after 3 restoration splicing attempts, City p
is not able to produce a loss value of 0.1 dB or less bi-directionally at 1550 nm, then 0.5 v
dB or less bi-directionally at 1550 nm will be acceptable. Fibers not meeting the 0.1 dB
or less specification will be identified as Out o f Specification (OOS). Documentation of
the three attempts (reburns) to bring the OOS fiber within specification will be provided. w
1.3 Span Loss
It is City's responsibility to ensure proper continuity of all fibers at the fiber level, not
just the pigtail level. Any "frogs" or fibers that cross in the route will be remedied by
City. The attenuation as measured by a light source and power meter shall not exceed the
following:
Maximum Allowable Attenuation per Fiber Span = (A * L) + (0.1 * N) + (0.5 * C)
A = 0.3 dB per kilometer (at 1550 nm)
L = Optical length of cable measured in kilometers (from OTDR trace)
N = Number of splices in the span
C = Number of mated connector pairs in the span. The connector loss will not exceed
0.5dB per mated pair.
1.4 Reflectance
The maximum reflectance per event, as measured by an OTDR, shall not exceed —4OdB.
P Packet Pg. 113
8.a
2. Naming of Traces
OTDR traces taken for bi-directional testing, and the OTDR traces of the pigtail splice must be
recorded on floppy diskette and provided to Lessee. To name the traces, each party will provide
alpha abbreviations for the sites. The 8 -character file name plus 3 -character file extension name
should follow this example:
First four letters = source point
Letters 5, 6, 7 = Destination point
8t' letter = wavelength
Extension = fiber number
Examples:
Springfield to Lebanon at 1550 nm, fiber 96 = sgfdlbn5.096
Springfield to Monett pigtail trace on fiber 1 = sgfdmntp.001
>NOTE: ALL HEADER INFORMATION ON OTDR
TRACE MUST BE COMPLETED.
3. Test Packages
Wilcon shall provide a package containing the following test data for each fiber. All data
provided should be provided to Lessee in digital format.
A. Bi-directional OTDR span traces taken at 1550 nm.
B. An Excel spreadsheet containing the power meter and light source data for both directions at
1550 nm. Should also include the average for each fiber.
C. A document identifying splice points with OOS test results. Should also include
documentation supporting the three reburn attempts.
D. The test data shall not include any test of third party connections or any other connections
than the Dark Fiber identified in the applicable Route Order.
E. An electronic GIS map file, such as a KMZ or shapefile, depicting the Route Order.
P Packet Pg. 114
8.a
EXHIBIT D
CALCULATION OF PREPAY CPI -U
Year
MRC
*TFM
Monthly Fiber
Miles x MRC
Annual Total
CPI Escalator Rate
Year 1
$
70.00
86.02
$
6,021.40
$72,256.80
1.5%
Year 2
$
71.05
86.02
$
6,111.72
$73,340.65
1.5%
Year
$
72.12
86.02
$
6,203.40
$74,440.76
1.5%
Year
$
73.20
86.02
$
6,296.45
$75,557.37
1.5%
Year 5
1 $
74.30
86.02
$
6,390.89
$76,690.73
1.5%
*Based on Exhibit A
Year 1i i Total Prepay Amount
5 Year 5 Year in Due
Base Rate 1 Base Rate Total Escalator Total (Difference of 5 Yr
Total 1
Totals)
---------------h--------------------------i------------------------ --------- ------------------
$72,256.80 ; $361,284.00 $372,286.32 $11,002.32
v
N
w
r
Packet Pg. 115