HomeMy WebLinkAbout2025-05-13 - AGENDA REPORTS - LIT FIBER TRANSPORT SERVICE AGMTO
Agenda Item: 9
CITY OF SANTA CLARITA
AGENDA REPORT
CONSENT CALENDAR
CITY MANAGER APPROVAL: Li
DATE: May 13, 2025
SUBJECT: LIT FIBER TRANSPORT SERVICE AGREEMENT FOR THE
MASTER'S UNIVERSITY
DEPARTMENT: Administrative Services
PRESENTER: Benny Ives
RECOMMENDED ACTION
City Council:
Approve a three-year agreement, with two one-year renewal options, that will allow the City
to provide lit transport service to The Master's University.
2. Authorize an increase of $10,000 in Fiscal Year 2024-25 to revenue account 100-431111
Dark Fiber Lease.
3. Authorize an increase of $9,000 annually in Fiscal Year 2025-26 through Fiscal Year 2027-
28 to revenue account 100-431111 Dark Fiber Lease.
4. Authorize the City Manager or designee to execute all contracts and associated documents,
subject to City Attorney approval.
BACKGROUND
The City of Santa Clarita (City) has made significant progress in finding ways to utilize its vast
fiber optic network (FON) to promote and facilitate high-speed internet access to local
businesses. Key milestones in this endeavor include securing a middle -mile dark fiber
connection from Santa Clarita to Downtown Los Angeles (DTLA), the procurement of high -
capacity fiber equipment, and an agreement with at least one internet Service Provider (ISP) to
provide high-speed internet service via fixed wireless.
Additionally, organizations with a need for Dedicated Internet Access (DIA) of 1 Gigabit per
second (Gbps) or higher, who possess their own technical experts, and are within striking
distance of the City's FON, may be a candidate to utilize the City's new connection and obtain
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DIA from an ISP located in DTLA.
The Master's University (Master's) is a prime example of such an organization. City staff
approached Master's to discuss the prospects of partnering on a project that would yield mutual
benefits - cost savings and redundant, fault -tolerant internet access for Master's and revenue
generation for the City. However, in order to move forward, Master's needs the City's robust
FON and its physical connection to DTLA.
City staff recommends entering into a three-year agreement whereby the City would provide
"lit" transport service of 2 Gbps to Master's. This transport service will utilize the City's active,
also known as "lighted," fiber equipment to enable Master's to traverse the City's FON to DTLA
and access the resources it will need to achieve robust internet service for its campus. The "lit"
service poses no security concerns to the City because Master's connection will be designed as a
virtual connection operating on its own unique optical wavelength, analogous to a private lane on
a multi -lane highway.
The agreement will generate one-time revenue of $10,000 towards necessary fiber equipment
plus $9,000 per year for "lit" service for each year of the three-year agreement, for a cumulative
contract total of $37,000. It will also enable Master's to obtain competitive prices for DIA while
achieving a fault tolerant path to the internet. If approved, the City anticipates Master's will be
able to utilize the connection within six to eight weeks.
ALTERNATIVE ACTION
Other action as determined by the City Council.
FISCAL IMPACT
Approval of the recommended action will increase Fiscal Year 2024-25 revenue account 100-
431111 by $10,000, and $9,000 annually from Fiscal Year 2025-26 through Fiscal Year 2027-
28.
ATTACHMENTS
CoSC MASTERS LitSvcs Agreement
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LIT SERVICES AGREEMENT
by and between
CITY OF SANTA CLARITA
and
THE MASTER'S UNIVERSITY
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LIT SERVICES AGREEMENT
THIS LIT SERVICES AGREEMENT ("Agreement"), made effective as of
, 2024 (the "Effective Date"), by and between the CITY OF SANTA
CLARITA, a municipal corporation with primary offices at 23920 Valencia Blvd, Santa Clarita,
CA 91355 ("City"), and THE MASTER'S UNIVERSITY, with primary offices at 21726
Placerita Canyon Rd, Santa Clarita, CA 91321 ("MASTER'S" or "Subscriber") with respect to
the following:
RECITALS:
A. The City has constructed a fiber optic infrastructure, including but not limited to
the dark fiber, conduit, handholes, manholes, equipment, and other dark fiber -related
appurtenances and components ("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 owns and operates fiber equipment and telecommunications facilities and is
in the business of providing certain lit transport services ("Lit Services") described herein.
C. Subscriber wishes to utilize City's facilities to subscribe to Lit Services as more
particularly described herein, between 22421 Market St, Newhall, CA 91321 ("Newhall
Community Center") and 624 S Grand Ave, Los Angeles, CA 90017 ("One Wilshire Building")
and along third party owned dark fiber ("Third Party Fiber"), subject to the terms and conditions
set forth in this Agreement.
D. City and Subscriber seek to enter into this Agreement for Subscriber to subscribe
to Lit Services, on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises set forth below, the
parties hereby agree as follows:
SECTION 1. LIT SERVICES.
1.1 Services Ordered.
City shall provide Lit Services ordered by Subscriber along the route set forth in Exhibit
"A". From time to time the parties may incorporate additional Lit service routes subject to City's
sole discretion. To the extent the City agrees to provide any additional Lit service routes, the
parties may amend and replace Exhibit "A". Lit Services consist of the following:
A. Lit Services are linear, bi-directional, point to point, optical transport
circuits enabled by equipment between two (2) sites over a shared optical
fiber infrastructure.
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B. Lit services are offered at 2 Gbps, but may be upgraded, as mutually
agreed upon in the future.
C. Lit Services will be dedicated to Subscriber's sole use and will originate or
terminate at the City's points of presence at City owned or leased
facilities.
D. Lit Services do not include any cross -connects, except to the extent
required at the demarcation point in Santa Clarita. It is Subscriber's
responsibility to procure and pay for any cross -connects.
E. Lit Services do not include any physical space for equipment except as
noted on Exhibit "A".
1.2 Service Delivery and Acceptance.
Prior to delivering Lit Services to Subscriber, the City shall conduct acceptance testing
("Acceptance Testing") to verify that the Lit Services conform with the specifications for the
services ordered under this Agreement (the "Specifications"). The City shall notify Subscriber on
the date when the Lit Services have been successfully installed and are performing in accordance
with the applicable Specifications and are available for Subscriber's use ("Service Date").
Subscriber shall have seven (7) calendar days to verify the Lit Services are performing in
accordance with the applicable Specifications (the "Verification Period") and provide the City
notice of any rejection of Lit Services to the City. Subscriber's use of the Lit Services, other than
for verification testing, or Subscriber's failure to reject the Lit Services within the Verification
Period shall be deemed an automatic acceptance of the Lit Services.
SECTION 2. TERM.
2.1 Initial Agreement Term.
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 three (3) years (the
"Initial Term").
2.2 Extension Term.
Provided that Subscriber is in full compliance with the terms of this Agreement, the term
of this Agreement shall be automatically extended for up to two (2) successive periods of one (1)
year (each an "Extension Term"), on the same terms and conditions as in effect just before the
then -current end of the term. Either Party shall have the right to terminate this Agreement after
the Initial Term by providing the other Party with sixty (60) days advance notice of its intent to
terminate the Agreement.
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SECTION 3. LIT SERVICES FEES.
3.1 Lit Services Fee.
In exchange for a dedicated Lit Service, Subscriber shall pay to City the applicable Lit
Services Fee ("Services Fee") outlined in Exhibit "A."
3.2 Fee During Any Extension Term, If Any.
In the event of an exercise of the Extension Term, the amount set forth in Exhibit A as
"Annual Recurring Charge" (ARC) shall be subject to a five percent increase effective on the
anniversary date of the Execution Date ("Adjustment Date") for the Extension Term.
3.3 Rates and Form of Payments.
The Lit Services Fee (the "Services Fees") shall be paid, without any prior demand,
setoff, counterclaim or deduction for any reason, by check or money order payable to the CITY
OF SANTA CLARITA, and shall be mailed or delivered to the following address:
CITY OF SANTA CLARITA
Attention: Finance Division - Accounts Receivable
23920 Valencia Blvd, Suite 295
Santa Clarita, CA 91355
3.4 Proration.
In the event any portion of the Lit Services is in effect for less than a full calendar year,
Subscriber shall pay a pro rata portion of the Services Fee for the fraction of the calendar year
that the Lit Services are in effect.
3.5 Payments and Invoices.
The Services Fees shall be paid in accordance with the following payment schedule:
A. Monthly Recurring Charge (MRQ Lit Service. During the Initial Term
and any Extension Terms, the City shall invoice Subscriber on a monthly
basis in advance for the Monthly Recurring Charge. The City will
endeavor to invoice Subscriber within thirty (30) days following the
Service Date and each anniversary thereof. Subscriber shall pay such
invoiced amount within thirty (30) days of receipt of the City's invoice.
B. Non -Recurring Charge (NRC). The City shall invoice Subscriber for the
Non -Recurring Charge following the Service Date set forth in Section 1.2.
Subscriber shall pay such amount within thirty (30) days of receipt of the
City's invoice.
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3.6 Nonpayment.
If Subscriber fails to pay the undisputed portion of the Fees when due, the City may
exercise its remedies after compliance with the notice provision set forth in Section 16, below.
Additionally, the City may assess a late fee of five percent (5%) per month (or the maximum rate
allowed under state law, whichever is less) on all amounts payable under this Agreement if not
paid when due.
3.7 Payment Disputes.
In the event Subscriber disputes any invoice by City, Subscriber will (a) pay all charges
not disputed, and (b) notify City of the dispute in writing, providing the invoice number and an
explanation of the issue in dispute. Payment will not prejudice Subscriber's right to dispute
charges, so long as they are disputed in the manner specified in this Section. The parties will
cooperate in good faith to resolve any such disputes within a sixty (60) day period after the
dispute is submitted to City. If the dispute is not resolved during this period, then either party
may seek dispute resolution in accordance with Section 13. If both parties agree that a disputed
amount is a legitimate charge, Subscriber will pay such amount within ten (10) calendar days of
such determination.
SECTION 4. TAXES AND ASSESSMENTS
4.1 Definition of Taxes.
The term "Taxes" as used herein shall mean and refer to any and all taxes, fees,
surcharges and other related charges that may be imposed or levied on Subscriber or City by any
federal, state, county and local governmental agency, including, but not limited to, possessory
interest tax, business or occupation tax (assessed on Subscriber), commercial, deaf, district,
excise, high cost fund, lease, lifeline assistance, low income, occupational, privilege, Public
Utility Commission, sales, telecommunications relay service, telephone assistance, universal
service funding, use, utility user, value-added, 911, or other similar taxes, fees and surcharges as
is or may be levied against City and passed through to its customers.
4.2 Obligation to Pay Taxes.
Subscriber shall be obligated to pay any all Taxes assessed, levied or imposed in
connection with this Agreement and identified herein. Notwithstanding the foregoing,
Subscriber is not responsible for the payment of any type of tax levied on City based upon (a)
City's net profit, net income or payroll, or (b) franchise taxes measured by City's capital, capital
stock or net worth, or (c) City's property or assets not used in connection with this Agreement, or
(d) right-of-way fees, or (e) any business or occupation tax assessed on the City.
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4.3 Agreement to Cooperate.
Subscriber and City agree to make commercially reasonable efforts to cooperate with
each other and coordinate their mutual efforts concerning audits, or other such inquiries, filings,
reports, etc., as may relate solely to the provision, sale or use of purchases, activities or
transactions arising from or under this Agreement, which may be required or initiated from or by
Subscriber, City or any duly authorized governmental authority relating to Taxes.
SECTION 5. REQUIRED RIGHTS.
City represents and warrants that it has secured the rights necessary for the installation
and maintenance of the Fiber Optic Network ("Required Rights"). City shall maintain the
Required Rights and will, at its cost, exercise any renewal right thereunder, and will use its best
efforts to acquire extensions, additions or replacements as are necessary to cause the Required
Rights to continue through the Initial Term and any Extension Terms.
SECTION 6. ACCESS AND USE OF THE FIBER OPTIC NETWORK.
6.1 Interconnection at the Demarcation Points.
Subscriber shall install, or cause to be installed, at its sole cost and expense, fiber optic
cabling and any associated infrastructure from the Subscriber's network ("Subscriber Fibers") to
the Demarcation Points. To the extent that the City is required to specially construct, relocate, or
acquire from third parties any fiber optic cabling or associated infrastructure to provide the Lit
Services for Subscriber, whether Subscriber cancels or terminates the Agreement prior to the
Service Date, Subscriber shall be responsible for the actual and documented costs for such
construction, relocation or acquisition.
6.2 No Access to Other Parts of Fiber Optic Network.
Except as required for the Lit Service, which is the subject of this Agreement, Subscriber
shall not have access to any part of the Fiber Optic Network without the prior written consent of
City, and then only subject to the terms and conditions specified by City.
6.3 Compliance with Applicable Law.
Subscriber warrants that its use of the Lit Services shall comply with all applicable
governmental codes, ordinances, laws, rules, regulations, orders, policies and restrictions.
Subscriber may not (i) tamper with other accounts or commit unauthorized intrusion into the
City's Fiber Optic Network;(ii) use Lit Services with the intent to breach or evaluate the City's
network security; (iii) use Lit Services to make deliberate attempts to overload the Fiber Optic
Network; or (iv) use Lit Services to transmit viruses, malware or other destructive programming
code with the intent to interfere with the Fiber Optic Network or related services. Nothing in this
Agreement shall be construed to create a public forum and the City shall not be held liable or
responsible for any Subscriber or third -party content or data transmitted over the Lit Services.
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6.4 City Equipment.
The telecommunications devices, apparatus and associated equipment owned, leased, or
otherwise obtained by City to provide Lit Services ("City Equipment"), shall remain the sole and
exclusive property of the City notwithstanding that it may be or become attached or affixed to
real property, and nothing contained herein grants or conveys to Subscriber any right, title or
interest in any City Equipment. Subscriber may not, and may not permit others to, alter, adjust,
encumber, tamper, repair, rearrange, change, remove, relocate, or damage any City Equipment or
the Fiber Optic Network without the prior written consent of City. Subscriber may not cause any
liens to be placed on any City Equipment or the Fiber Optic Network. Subscriber shall be liable
to City for any loss or damage to City Equipment or Fiber Optic Network caused by Subscriber
or Subscriber's employees, contractors, agents or end users. Nothing herein shall prevent City
from using the Fiber Optic Network and City Equipment to provide services or grant a license to
other customers.
6.5 Subscriber Equipment.
Subscriber shall, at its sole cost and expense, procure any equipment necessary to
implement or receive Lit Services ("Subscriber Equipment"). Subscriber Equipment shall be
compatible with the City's requirements and subject to the City's approval prior to installation.
City shall have the right to inspect and approve the installation of all Subscriber Equipment prior
to commencing any Lit Services. Subscriber shall coordinate with the City to install, maintain, or
repair Subscriber Equipment. Promptly upon notice from City, Subscriber shall eliminate any
hazard, interference or obstruction that any such Subscriber Equipment is causing or may cause
as reasonably determined by City. Subject to the City's consent, which the City may withhold in
its sole discretion. Subscriber may install Subscriber Equipment in City owned or leased
facilities.
6.6 Damage.
If Subscriber or any of its agents, invitees, employees, representatives, contractors,
subcontractors or consultants damage the City's Fiber Optic Network or any other property
owned by the City, Subscriber shall reimburse the City for all of its reasonable and documented
costs of repairing the Fiber Optic Network or other property. Total amounts City may be eligible
for upon determination of fault caused by Subscriber is limited to 2 years of the ARC.
SECTION 7. MAINTENANCE.
7.1 Maintenance of Structural Aspects.
City shall maintain the Lit Services such that they at all times conform to the applicable
specifications. The City's maintenance responsibilities under this Agreement shall only apply to
network elements under the City's exclusive control and shall not apply beyond Subscriber's
demarcation points. Subscriber shall not perform or access the Fiber Optic Network to conduct
maintenance or repairs without the express written authorization of the City.
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7.2 Delegation of Maintenance Services.
City may subcontract for testing, maintenance, repair, restoration, relocation, or other
operational and technical services for the maintenance of the Fiber Optic Network; however, any
delegation or subcontracting by City shall not operate to relieve City of its responsibilities under
this Agreement.
7.3 Notification of Problems.
Subscriber shall promptly notify City of any matters pertaining to any damage or
impending damage to or loss of the use of Lit Services that are known to it and that could
reasonably be expected to adversely affect the Fiber Optic Network. City shall promptly notify
Subscriber of any matters pertaining to any damage or impending damage to or loss of Lit
Services that are known to it and that could reasonably be expected to adversely affect
Subscriber's use thereof.
7.4 Third Party Fiber Problems.
Subscriber acknowledges that Lit Services will traverse across the Fiber Optic Network
and Third Party Fiber that the City possesses the legal right to use, the latter of which shall be
subject to the availability and maintenance terms set forth by the owner of the Third Party Fiber.
The City does not warrant or guarantee any particular data distortion rate along Third Party
Fiber. Subscriber shall promptly notify City of any matters pertaining to any loss of Lit Services
that are known to it and that could reasonably be expected to adversely affect Lit Services. City
shall promptly notify Subscriber of any matters pertaining to any damage or impending damage
to or loss of Lit Services that are known to it and that could reasonably be expected to adversely
affect the Lit Services or Subscriber's use thereof.
SECTION 8. WARRANTY.
8.1 City warrants and represents that it possesses and will maintain all applicable
licenses, approvals, registrations and certifications required under all applicable governmental
laws, codes, ordinances, statutes and regulations in order to perform its obligations under this
Agreement.
8.2 Subscriber warrants and represents that all network traffic handled by the City is
compliant with applicable governmental laws, codes, ordinances, statues and regulations and
those established in this Agreement.
8.3 EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES ARE
PROVIDED AS -IS AND THE CITY EXPRESSLY DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANTY WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT. THE WARRANTIES AND REMEDIES SET FORTH ABOVE CONSTITUTE
THE ONLY WARRANTIES AND REMEDIES WITH RESPECT TO THIS AGREEMENT
AND ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY,
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EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE CITY
FURTHER DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR THE CONTENT
OF ANY COMMUNICATION TRANSMITTED BY SUBSCRIBER OR OTHERS AND
DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR
MISUSE OF THE LIT SERVICES.
SECTION 9. INDEMNIFICATION.
Subscriber shall indemnify, defend and hold harmless City, its City Council, boards and
commissions, employees, and agents from and against all third -party liability, loss, cost, damage,
expense, claims or cause of action of any nature whatsoever, including, but not limited to,
reasonable attorneys' fees, arising out of or resulting from Subscriber's use of Lit Services under
this Agreement; provided, however, that Subscriber shall not have any obligation to indemnify,
defend or hold harmless for any claims arising from the sole active negligence or willful
misconduct of the City.
SECTION 10. LIMITATION OF LIABILITY.
10.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, OR
PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT
NOT LIMITED TO ANY LOST PROFITS, LOST REVENUES, LOST SAVINGS, OR HARM
TO SUBSCRIBER'S BUSINESS OR SUBSCRIBER'S CUSTOMERS IN CONNECTION
WITH THE USE OF LIT SERVICES OR THIS AGREEMENT. EACH PARTY HEREBY
RELEASES THE OTHER PARTY FROM ANY SUCH CLAIM.
10.2. Disclaimer of Internet Performance. City does not and cannot control the now of
data to and from the City via the internet. Such flow depends in large part on the performance of
internet services provided or controlled by third parties. At times, actions or inactions of third
parties can impair and disrupt the Lit Services. City will use commercially reasonable efforts to
remedy and avoid such events but cannot guarantee that such events will not occur.
Accordingly, City disclaims any and all liability resulting from or relating to such events.
10.3. Limitation of Damages. In addition to the limitations set forth above, Subscriber
agrees that in the event of any claim or cause of action by Subscriber arising out of connected
with this Agreement, the maximum amount of City's liability of loss to Subscriber, regardless of
the amount of loss Subscriber may have suffered, shall be the amount of Fees paid by Subscriber
to City within the prior year.
10.4. No Personal Liability for City Personnel. In no event will any City board, agency,
member, officer, employee, agent, director, contractor, subcontractor or representative be
personally liable to Subscriber, its successors or assigns, for any default, breach, other
nonperformance or sum unpaid sum by the City. The provisions in this Section 10.4 shall survive
this Agreement's revocation, termination or expiration.
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SECTION It. INSURANCE.
Upon the Execution Date, Subscriber shall maintain insurance in compliance with the
terms set forth in the Insurance Requirements attached hereto as Exhibit "C" and shall provide
evidence of such coverage to the City upon written request. In addition, throughout the Term of
this Agreement, Subscriber shall also maintain sufficient property insurance to cover any
Subscriber Equipment and that Subscriber shall look solely to its own insurance policies for any
recovery of damages to Subscriber's Equipment.
SECTION 12. DEFAULT AND TERMINATION.
12.1 Notice of Breach.
In the event either party fails to perform the obligations set forth in this Agreement, the
nondefaulting party must provide written notice of such default including reasonable detail of the
default, and thirty (30) days to cure the default.
12.2 Remedies Available Upon Default.
Upon the failure by the defaulting party to cure any default in accordance with Section
12.1, the nondefaulting party may do any or all of the following:
A. Terminate this Agreement immediately upon written notice of its desire to
terminate;
B. Subject to Section 10.3 as applied to Subscriber, pursue any legal
remedies it may have under this Agreement, as well as applicable law or principles of
equity.
12.3 Survival of Remedies.
Notwithstanding the foregoing, no termination of this Agreement shall affect the rights or
obligations of any party hereto with respect to any payment hereunder for services rendered prior
to the date of termination.
12.4 Obligation to Remove Subscriber Equipment Upon Termination.
Upon termination, Subscriber will promptly disconnect and remove the Subscriber
Equipment in a neat and orderly manner, and repair all damage directly caused by such removal
at Subscriber's sole expense, excluding normal wear and tear.
12.5 Survival of Terms.
Notwithstanding the provisions of this Section, the expiration or termination of this
Agreement shall not affect the rights or obligations of either party hereto with respect to any
payment for services rendered prior to the date of termination, or pursuant to the Sections of this
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Agreement entitled Indemnification, Limitation of Liability, Insurance and Taxes with respect to
matters or claims arising or accruing prior to expiration or termination hereof, or pursuant to any
other provisions of this Agreement that, by their sense and context, are intended to survive
termination of this Agreement.
SECTION 13. DISPUTE RESOLUTION.
Any claim, dispute or controversy arising from or relating to this Agreement, which
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would otherwise require or allow resort to any court, shall be determined exclusively by final and
binding arbitration as set forth in this Section. This Section shall apply to all claims and disputes,
whether the disputes or claims arise in tort, contract, or pursuant to a statute, regulation, or
ordinance now in existence or which may in the future be enacted or recognized. The aggrieved
party must submit a written demand for arbitration to the other party within the time prescribed
by the state or federal statute of limitations applicable to the claim asserted. Failure to submit
and serve a written demand for arbitration within the applicable statutory period shall constitute a
waiver and an absolute bar to the raising or prosecution of that claim in any form. The arbitration
shall be conducted in accordance with the California Arbitration Act (as set forth in Title 9 of the
California Code of Civil Procedure (sections 1280 et seq.) and the rules and procedures for
employment disputes set forth by the Employment Arbitration Rules and Procedures (the
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"Rules") of the Judicial Arbitration and Mediation Services ("JAMS"). The arbitration shall take
place before a single arbitrator selected in accordance with the Rules. The final decision of the
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arbitrator shall be binding on the parties and shall not be subject to appellate review.
Notwithstanding the foregoing, either party shall be entitled to obtain immediate equitable relief,
such as by temporary restraining order or injunction, in Superior Court for the County of Los
Angeles to prevent any violation of any covenants, conditions or provisions contained in this
Agreement.
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SECTION 14. GOVERNING LAWS.
Any action related to this Agreement will be governed the laws of the State of California
without regard to choice of laws principles and exclusive venue for any action involving this
Agreement must be in accordance with Section 13.
SECTION 15. RELATIONSHIP OF THE PARTIES.
The relationship between the parties shall not be that of partners, agents or joint venturers
for one another, and nothing contained in this Agreement shall be deemed to constitute a
partnership or agency agreement between them for any purposes, including, but not limited to
federal income tax purposes. In performing any of their obligations hereunder, the parties shall be
independent contractors or independent parties and shall discharge their contractual obligations at
their own risk. Subscriber acknowledges that the City enters into and performs its obligations under
this Agreement solely in its proprietary capacity, and that the City cannot and shall not in any
manner guarantee the granting of any regulatory approvals or entitlements pertaining to this
Agreement.
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SECTION 16. NOTICES.
Any notice, demand or other correspondence required to be given in connection with or
pursuant to this Agreement shall be in writing and shall be delivered by personal service or by
United States certified or registered mail, with postage prepaid, or by facsimile addressed as
follows:
To the City:
CITY OF SANTA CLARITA
Attention: City Manager
23920 VALENCIA BLVD
SANTA CLARITA, CA 91355
With a copy to (which copy shall not constitute notice):
CITY OF SANTA CLARITA
Attention: Technology Services Division - Manager
23920 VALENCIA BLVD
SANTA CLARITA, CA 91355
CITY OF SANTA CLARITA
Attention: City Attorney
23920 VALENCIA BLVD
SANTA CLARITA, CA 91355
To THE MASTER'S UNIVERSITY:
THE MASTER'S UNIVERSITY
Attention: XXXXXX
XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
Either party, by similar written notice, may change the address to which notices shall be
sent.
SECTION 17. WAIVER.
No failure, forbearance, neglect, or delay by either party in regard to enforcing this
Agreement or exercising any rights contained in this Agreement shall affect or limit such party's
right to strictly enforce same, and shall not constitute or be implied as a waiver of any right to
enforce same in the future.
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SECTION 18. ASSIGNMENT.
Subscriber shall not resell or redistribute access to the Lit Services in any manner, or
assign or transfer its rights and obligations under this Agreement or any interest therein, directly
or indirectly, by operation of law or otherwise, without the prior written consent of City which
may be withheld in the City's sole discretion. Any attempt to do so without the City's consent
shall be null and void and be a material default by Subscriber under this Agreement without a
requirement for notice and a right to cure. Any assignee or transferee, shall acquire no right by
reason of such attempted assignment or transfer. Notwithstanding the foregoing provisions to
the contrary, Subscriber may, without City's consent but with notice to the City, assign this
Agreement to any entity controlling, controlled by, or under common control with, Subscriber, or
to a successor by merger or the purchaser of substantially all of the assets of Subscriber (each a
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"Permitted Assignment"). Notwithstanding anything in this Agreement to the contrary, a
Permitted Assignment will be subject to all the following conditions: (i) the assignee may use the
Lit Services only for the uses permitted under this Agreement and for no other purpose
whatsoever; (ii) Subscriber provides the City with notice as soon as reasonably practicable
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before the effective date of such Permitted Assignment, stating the contact information for the
proposed assignee and providing financial information establishing that the proposed assignee
has the capital and fiscal qualifications greater than or equal to Subscriber's as it existed on the
Effective Date; (iii) Subscriber is in good standing under this Agreement; (iv) the assignee shall
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covenant to perform all Subscriber's obligations under this Agreement and Subscriber will be
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and remain liable jointly and severally with the assignee for all obligations to be performed by
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assignee; and (v) within 30 days after Subscriber receives a written demand from the City,
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Subscriber shall reimburse the City for all reasonable and documented costs incurred by the City
in connection with the Permitted Assignment.
SECTION 19. FORCE MAJEURE.
If either City, Subscriber or third party under Section 7.4 is delayed in or prevented from
the performance of any act required under this Agreement by reason of acts of God, severe
weather and storms, earthquakes or other natural occurrences, strikes or other labor unrest, power
failures, nuclear or other civil or military emergencies, or acts of legislative, judicial, executive
or administrative authorities, 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 Subscriber from the prompt payment of any
installation costs, license and maintenance fees, taxes, or any other charges that are required of
Subscriber under this Agreement.
SECTION 20. MISCELLANEOUS.
20.1 The covenants, undertakings, and agreements set forth in this Agreement are
solely for the benefit of and enforceable by the parties or their respective successors or permitted
assigns.
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20.2 Except as otherwise expressly provided, the rights and remedies set forth in this
Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity.
20.3 The headings in this Agreement are strictly for convenience and do not amplify or
limit any of the terms, provisions or conditions hereof.
20.4 In the event any term of this Agreement is held invalid, illegal or unenforceable,
in whole or in part, neither the validity of the remaining part of such term nor the validity of the
remaining terms of this Agreement will be in any way affected.
20.5 This Agreement may be amended only by a written instrument executed by the
parties.
20.6 No failure to exercise and no delay in exercising, on the part of either party, any
right, power or privilege hereunder will operate as a waiver, except as expressly provided herein.
20.7 This Agreement may be executed in multiple counterparts, all of which taken
together constitute one and the same instrument
20.8 If any conflict or contradiction exists between the Agreement and an Addendum,
the terms of the Addendum shall control.
20.9 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.
20.10 This Agreement is not intended to (and shall not be construed to) give any third
party, which includes without limitation Subscriber's customers or any other third -party
beneficiaries, any right, title or interest in this Agreement or the real or personal property(ies)
that may be affected by the same.
SECTION 21. 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
party is delivered by facsimile transmission. Such facsimile signature will be treated in all respects
as having the same effect as an original signature.
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SECTION 22. ENTIRE AGREEMENT.
This Agreement supersedes any and all other agreements and representations respecting
the subject matter contained herein and contains all the terms, conditions and obligations of the
parties with respect to this Agreement. This Agreement may only be amended or modified in a
writing signed by both parties. If any provision of this Agreement is held to be invalid or
unenforceable, the remainder of this Agreement shall remain in full force and effect.
SECTION 23. 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.
SECTION 24. CONFLICT OF INTEREST.
Subscriber will comply with all applicable conflict of interest laws and regulations
including, without limitation, City's Purchasing Standards of Conduct to the extent applicable to
this Agreement.
SECTION 25. RECITALS AND EXHIBITS.
The Recitals set forth above and the following Exhibits are incorporated as a term of this
Agreement:
Exhibit "A" Lit Services Addendum
Exhibit "B" Maintenance and Operations Specifications
Exhibit "C" Insurance Requirements
In the event of any conflict between or among the provisions of this Agreement or the Exhibits to
the Agreement, such conflict shall be resolved in the following order of precedence: (i) Lit
Services Addendum; (ii) the Agreement; and (iii) Insurance Requirements; and (iv) remaining
Exhibits.
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed on the
date set above by its duly authorized representative.
APPROVED AS TO FORM:
Date:
Joseph Montes
City Attorney
CITY OF SANTA CLARITA
a municipal corporation
Ken Striplin
City Manager
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Date:
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THE MASTER'S UNIVERSITY
By: Date:
Name
Title:
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EXHIBIT "A"
LIT SERVICES ADDENDUM
LIT SERVICES ADDENDUM — LIT FEE
Demarcation Points
Non -Recurring
Monthly Recurring
Annual Recurring
Service
Charge
Charge
Charge
A -Location
G-Location
(NRC)
(MRC)
(ARC)
22421 Market St,
624 S Grand Ave,
Lit Services
Santa Clarita, CA
16 Floor,
$10,000
$750
$9,000
2 Gbps
91321
Los Angeles, CA
(12 x $750)
90017
NRC Total:
$10,000
MRC Total:
$750
ARC Total:
$9,000
INITIAL 3 YEAR TERM AGREEMENT TOTALS
Annual Fees
Total Three (3) Year
Annual Recurring
Total
Non-
Recurring
Three (3) Year
Agreement
Lit Services Fee
Charge
(ARC)
Charge
Total:
(NRC)
$9,000
$27,000
$10,000
$37,000
NOTES
1. Non -recurring charge shall consist of fees necessary to conduct all fiber splices,
inspection, device procurement and configuration, and setup.
2. ARC = Monthly Recurring Charge (MRQ x 12 months.
3. Invoices shall be payable for MRC each month.
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EXHIBIT `B"
MAINTENANCE AND OPERATIONS SPECIFICATIONS AND PROCEDURES
1. Defined Terms
a. "Routine Maintenance" is all preventive maintenance activities, upgrades and
repairs, including but not limited to those activities outlined in this Exhibit.
b. "Non -Routine Maintenance" is all efforts and activities in response to an
emergency circumstance which requires restoration.
2. General
a. City shall provide a means for Subscriber to report trouble with Lit Services to
trained and qualified personnel on a twenty-four (24) hours a day, (7) seven days a week basis,
which may include a City contractor or consultant ("Technician"). Subscriber shall report trouble
to the City at 661-255-4388. Helpdesk during normal business hours as defined herein and
outside normal business hours in accordance with the escalation list "City Escalation List"
described in this Section 2(c). The normal business hours shall mean and refer to the hours
between 8:00 a.m. to 5:00 p.m. Pacific Standard Time, Mondays through Fridays, except for City
observed holidays. The City shall dispatch a Technician along the Fiber Optic Network to
handle and repair problems reported by Subscriber or otherwise discovered by the City.
b. The Technician shall be available for dispatch twenty-four (24) hours a day, seven
(7) days a week. City shall use best efforts to have its Technician at the site requiring a non -
routine maintenance activity within four (4) hours from notification by Subscriber or other
discovery by the City, whichever occurs first. In the event that the non -routine maintenance
activity involves third party networks, response times and remediation will depend on the third
party and the City provides no representation or warranty as to third party response times;
provided, however, that the City will provide Subscriber notice as soon as reasonably practicable
that the non -routine maintenance activity involves a third party and whether such party has
responded to the issue.
C. Subscriber shall utilize the City Escalation List provided by City, to report and
seek immediate initial redress of exceptions noted in the performance of City in meeting
maintenance service objectives. City may update the Operations Escalation List from time to
time.
CITY OF SANTA CLARITA Escalation Contact List
Tier
Contact Title
Tel. #
Email Address
1
City Helpdesk
661-255-4388
helpdesk@santa-clarita.com
2
City Fiber Team
661-286-4070
scfiber@santa-clarita.com
3
Information Services Manager
661-373-1616
bivesAsanta-clarita.com
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d. City shall take workmanlike care to prevent impairment to the signal continuity
and performance of the Lit Services. The precautions to be taken by City shall include
notification to Subscriber. In addition, City shall reasonably cooperate with Subscriber in sharing
information and analyzing the disturbances regarding the Lit Services.
e. City shall notify Subscriber at least seven (7) days prior to the date of any planned
routine maintenance activity. In the event that a City -planned activity is canceled or delayed for
any reason as previously notified, City shall notify Subscriber at City's earliest opportunity and
will comply with the provisions of the previous sentence to reschedule any delayed activity.
f. Routine maintenance work that is reasonably expected to produce any signal
discontinuity must be coordinated between the parties, and performed in accordance with
Scheduled Maintenance Procedures. "Scheduled Maintenance Procedures" or "SMP" means a
pre -arranged period of time reserved for performing certain work on City's Fiber Optic Network
that may impact communication services. Unless otherwise agreed by Subscriber, SMP will be
completed after 10:00 p.m. and before 6:00 a.m., local time. Major Fiber Optic Network work
such as fiber rolls, relocations, and hot cuts will also be scheduled utilizing SMP.
g. Subscriber shall provide and maintain titles and telephone numbers of primary
and secondary contact personnel "The Master's University" who are trained in trouble -shooting
network problems. These personnel will diagnose potential problems with Subscriber's
equipment and determine there are no problems with such equipment prior to making a Non -
Routine Maintenance request to City.
THE MASTER's UNIVERSITY Escalation Contact List
Tier
Contact Title
Tel. #
Email Address
Brian Pam — Director of IT
1
Operations
661-362-2345
b am masters.edu
Gianna Bisares — Director of
IT Service Management and
2
Security
661-362-2206
bisares masters.edu
Paul Sedy — Chief
3
Information Officer
661-362-2340
sed masters.edu
3. Fiber Optic Network.
City shall maintain the Fiber Optic Network in good and operable condition and
shall repair the fiber in workmanlike manner to the extent necessary to provide Lit
Services.
b. City shall perform appropriate routine maintenance on the Fiber Optic Network in
accordance with City's then current preventative maintenance procedures to the
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extent necessary to provide Lit Services. City's maintenance procedures shall not
substantially deviate from industry practice.
City responsibility ends at demarcation point. Testing would take place from
demarcation point A to demarcation location Z.
4. Restoration
r
a. When restoring a cut fiber, the parties agree to work together to restore all traffic
as quickly as possible. City, upon arriving on the site of the cut, shall determine the best course
of action to be taken to restore the fiber and shall begin restoration efforts as required in the
Agreement.
b. It will be the responsibility of City and Subscriber to report to one another
respectively of any known environmental hazards that would restrict or jeopardize any
maintenance work activities in shelters or right of way areas of operations.
C. Upon notification of interruption of fiber service, disrepair, impairment or other
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need for repair or restoration of the Lit Services, City shall pursue commercially reasonable
efforts to mobilize technicians to achieve necessary repair or restoration, including, but without
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limitation, to have maintenance personnel at the affected site within four (4) hours after receipt
of such notice with the required restoration material and equipment. If Subscriber's use of the Lit
Services is interrupted due to the occurrence of a Force Majeure event, repairs and restoration
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will be made as expeditiously as possible under the circumstances.
d. For purposes of this section, "commercially reasonable efforts" means activities
and performances consistent with prudent utility practice, existing contract provisions for City
hourly employees, preserving Fiber Optic Network integrity, and response times that do not
jeopardize the health and safety of the employees and agents of City and Subscriber.
e. City maintenance employees or contractors shall be responsible for correcting or
repairing fiber discontinuity or damage, including, but not limited to, the non -routine repair
necessary to provide the Lit Services. City shall use commercially reasonable efforts to resume
Lit Services after traffic -affecting discontinuity as soon as possible after learning of the
discontinuity or the service affecting situation.
5. Network Availability
a. City will, to the best of its ability, provide uninterrupted service to Subscriber.
b. Network availability of Lit services will be available to Subscriber 99.9% of the
available time each month.
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6.
c. Network availability is the number of minutes in a calendar month during which the
service is available to exchange data between the two (2) demares and shall be
determined as follows:
(Total Minutes in Calendar month — Total Minutes of Non -Availability) / Total
Minutes in Calendar Month
d. Total Minutes in Calendar Month means 30 days x 24 hours x 60 minutes = 43,200
minutes, which equates to 100% Availability
L
e. Total Minutes of Non -Availability means the total of all minutes of network non -
availability in a calendar month. This shall be measured from the time Subscriber's
report of service trouble is determined to constitute a service outage until the time;
service is restored.
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Credit Allowances
a. Service Outage Credit - If Lit Service suffers an outage exhibiting less than 99.9%
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Network Availability (Service Outage), Subscriber will be entitled to a credit as (-
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follows, calculated as a percentage of MRC, which is simply ARC / 12 months; and is .0
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subject to the requirements and limitations of this agreement:
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Network Availability in a Month
From
To
Service Outage Credit Amount
100%
99.9%
0% of the MRC
<99.9%
99.7%
5% of the MRC
<99.7%
99.2%
10% of the MRC
<99.2%
98.2%
15% of the MRC
<98.2%
0% 4
25% of the MRC
b. Subscriber's total service outage credit(s) in any one (1) month will not exceed one
(1) month's MRC and no credits will be applied to future MRC's.
Subscriber must notify City and request credit within thirty (30) days after the Service
Outage, or will waive its right to such credit allowance for such event. Additionally,
to be eligible for service outage credits, Subscriber must be in good standing with the
City and current in all of its obligations.
Chronic Trouble (as defined below) Subscriber may disconnect Lit Services with
thirty (30) days' prior written notice without incurring early termination fees and is
released from all contract liability. "Chronic Trouble" is defined as: (i) a single
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service outage in excess of twenty-four (24) hours; or (ii) more than four (4) outages
of less than 98.2% Network Availability in any consecutive thirty (30) day period.
d. Events Excepted from Service Outage Credit - Subscriber shall not receive any
Service Outage Credit for any Service Outage, arising from or caused, in whole or in
part, by any of the following events:
i. Subscriber's (including its agents, contractors and vendors) acts or
omissions;
ii. Failure on the part of Subscriber's equipment,
iii. Failure of electrical power at the Newhall Community Center
iv. City's inability to obtain access required to remedy a defect due to any
safety restrictions;
V. Scheduled, routine maintenance periods;
vi. Scheduled upgrade of Lit Services;
vii. Third -party fiber problems
viii. Force Majeure Event; or
ix. Disconnection or suspension of Lit Services by City pursuant to a right
provided under this Agreement.
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EXHIBIT "C"
INSURANCE REQUIREMENTS
Contractor's Insurance
Prior to commencing work, the Contractor shall procure and maintain at Contractor's own
cost and expense for the duration of the Contract insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the
performance of the work or services hereunder by the Contractor, his agents,
representatives, employees, or subcontractors. The cost of such insurance shall be included
in Contractor's bid.
Without in any way affecting the indemnity provided, the Contractor shall secure before
commencement of the work and throughout the contract the following types and amounts
ofinsurance:
Minimum Limits of Insurance
Contractor shall obtain insurance of the types and in the amounts described below:
1) Commercial General Liability Insurance
Contractor shall maintain commercial general liability (CGL) with a limit of not
less than $1,000,000 each occurrence/$2,000,000 in the annual aggregate.
2) Business Auto and Umbrella Liability Insurance
Contractor shall maintain business auto liability with a limit of not less than
$1,000,000 each accident.
3) Workers' Compensation and Employer's Liability Insurance
Contractor shall maintain workers' compensation insurance as required by the State
of California and Employer's Liability Insurance in the amount of $1,000,000 per
accident for bodily injury or disease.
Minimum Scope of Insurance
1) CGL insurance shall be written on Insurance Services Office form CG 00 01 (or a
substitute form providing equivalent coverage) and shall cover liability arising from
premises, operations, independent contractors, products -completed operations,
personal injury and advertising injury liability assumed under an insured contract
(including the tort liability of another assumed in a business contract), and
explosion, collapse and underground hazards.
2) Business Auto Insurance shall cover liability arising out of any auto (including
owned, hired, and non -owned autos). Coverage shall be written on Insurance
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Services Office form CA 00 01, CA 00 05, CA 00 12, CA 00 20, or a substitute
form providing equivalent liability coverage. If necessary, the policy shall be
endorsed to provide contractual liability coverage equivalent to that provided in the
1990 and later editions of CA 00 01.
Deductibles and Self -Insured Retentions
Any deductibles or self -insured retentions must be declared to the CITY OF SANTA
CLARITA. Contractor shall guarantee that their deductibles do not limit their liability (if
any) under this agreement.
Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to
contain, the following provisions:
1) CITY OF SANTA CLARITA, its officers, officials, employees, and volunteers are
to be covered as additional insureds with respect to liability arising out of
automobiles owned, leased, hired, or borrowed by or on behalf of the contractor;
and with respect to liability arising out of work or operations performed by or on
behalf of the Contractor including materials, parts or equipment furnished in
connection with such work or operations. Under the CGL policy, using the
Insurance Services Office additional insured endorsement form CG 20 10 or a
substitute providing equivalent coverage, and under the commercial umbrella, if
any. City and other additional insureds mentioned in this paragraph shall not, by
reason of their inclusion as additional insureds, become liable for any payment of
premiums to carriers for such coverage.
2) For any claims related to this project, the Contractor's insurance coverage shall be
primary as respects the CITY OF SANTA CLARITA, its officers, officials,
employees, and volunteers. Any insurance or self-insurance maintained by the
CITY OF SANTA CLARITA, its officers, officials, employees, or volunteers shall
be excess of the Contractor's insurance and shall not contribute with it.
3) Coverage shall not extend to any indemnity coverage for the active negligence of
the additional insured in any case where an agreement to indemnify the additional
insured would be invalid under subdivision (b) of Section 2782 of the Civil Code.
General Liability, Workers' Compensation and Employer's Liability
The insurer shall agree to waive all rights of subrogation against the CITY OF SANTA
CLARITA, its officers, officials, employees, and volunteers for losses arising from
activities and operations of Contractor in the performance of services under the contract.
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All Coverages
1) Each insurance required by this clause shall be endorsed to state that coverage shall
not be canceled except after thirty (30) days prior written notice by certified mail,
return receipt requested, has been given (add user department and specify specific
individual and title) to the City.
2) If Contractor, for any reason, fails to maintain insurance coverage which is required
pursuant to this Contract, the same shall be deemed a material breach of contract.
City, at its sole option, may terminate this Contract and obtain damages from the
Contractor resulting from said breach. Alternatively, City may purchase such
coverage (but has no special obligation to do so), and without further notice to the
Contractor, City may deduct from sums due to the Contractor any premium costs
advanced by the City for such insurance.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than
A:6 unless otherwise approved by the City's Risk Manager.
Verification of Coverage
Contractor shall furnish the CITY OF SANTA CLARITA with original certificates and
amendatory endorsements effecting coverage required by this section. The certificates and
endorsements for each policy are to be signed by a person authorized by the insurer to bind
coverage on its behalf. The certificates and endorsements should be on forms approved by
the CITY OF SANTA CLARITA. All certificates and endorsements are to be received
and approved by the CITY OF SANTA CLARITA before work commences. The CITY
OF SANTA CLARITA reserves the right to require complete, certified copies of all
required insurance policies, including endorsements effecting the coverage required by
these specifications at any time.
Subcontractors
Contractor shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
Contractor will have the right to select the contractors/subcontractors who will perform
work for Contractor under the Agreement, subject to the prior approval of City, which
approval will not be unreasonably withheld.
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