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HomeMy WebLinkAbout10-20 -2015 Second Amendment - Digital WestCouncil Agenda Report ra U Meeting Date: 10/20/2015 FROM: Derek Johnson, Interim Director of Finance & Information Technology Prepared By: Steve Schmidt, Information Technology Manager SUBJECT: AMENDMENT NO. 2 TO THE CITY/DIGITAL WEST FIBER OPTIC INFRASTRUCTURE AGREEMENT RECOMMENDATION Approve of and authorize the Mayor to execute the Second Amendment (Attachment A) to the City/Digital West Fiber Optic Infrastructure Agreement to allow Digital West to expand its fiber optic network. ❑ISCUSSION Background In April of 2011, City staff released a Request for Proposals ("RFP") to lease portions of the City's conduit system to private communications companies. Digital West was the only company that responded to the City's RFP. On September 20, 2011, the City and Digital West entered into the City/Digital West Fiber Optic Infrastructure Agreement (the "Agreement") to facilitate the installation of conduit and conduit use. Through the Agreement the City agreed to provide a nonexclusive license to a portion of the City's conduit system for use by Digital West in exchange for web hosting and other related technology services. On March 31, 2015 the Council approved Amendment No. 1 to the Agreement which allowed Digital West to expand its fiber optic network within City owned conduits by granting Digital West an expanded license to designated portions of the City's conduit system. Proposed Second Amendment Digital West has completed their conduit work in Phase one of the project which was addressed in the first Amendment to the agreement and is now ready to begin proofing City conduits and pulling their fiber cables. Amendment two includes phases two and three of the Digital West project which includes the entire downtown area of the City. As proposed, Digital West agrees to pay to the City, $0.45 per linear foot for 22,090 linear feet of space within existing City conduits as a "Conduit License Fee" for a total fee of $9,940 per year. This fee is equivalent to the amount shown in Attachment C from AT&T and is the industry standard pricing for equivalent access. The City conduits already contain cabling for City services and will not be affected by Digital West placing an additional fiber cable. The 22,090 linear feet of fiber cable that Digital West will be placing for its needs is proposed to involve the following City conduits (Attachment B): Packet Pg. 73 1'1 I . Mill to Foothill — Entering at the City vault at Mill and Johnson, continuing on Johnson under Highway 101 to California St, to Foothill Rd and south to Ferrini Rd. 2. Hathway to Oak -- Adjacent the 101 South exits at Montalban St and Hathway, extending along Montalban to Oak St. at Lemon St. 3. Chorro St. — The Chonro St. conduits between Walnut St. and Pacific St. 4. Madonna Rd — From Elks Rd under Highway 101, extending the length of El Mercado to Madonna Rd, south to Los Osos Valley Road and west to Diablo Dr. By licensing this additional conduit to Digital West the City's fiber optic infrastructure will be significantly expanded. FISCAL IMPACT There is no cost to the City as a result of the Second Amendment. There will be a positive fiscal impact of approximately $9,940 per year associated with the increase in revenue to the City as a result of this amendment. Do not approve the amendment. Council may choose to not approve the amendment to the existing City/Digital West Agreement. This is not recommended due to the increasing need for fiber continuity in the City that will be met with these and additional future conduit licensing agreements. Attachments: a - Digital West.First Amendment h - Map c - Pricing d - Original City -Digital West Agreement e - Conduit Share Proposal phase 2 and 3 f - Second Amendment DW License 9-30-15 g - SLOKEYMP- Progress Packet Pg. 74 Attachment 1 t�'a FIRST AMENDMENT TO AGREEMENT FOR INSTALLATION OF CONDUIT AND CONDUIT USE This First Amendment to Agreement for Installation of Conduit and Conduit Use ("First Amendment") is made, entered and effective as of this day of , 2015 (the "Effective Date") by and between the City of San Luis Obispo, a municipal corporation and charter city ("City") and Digital West Networks, Inc., a California corporation ("Digital West"). RECITALS WHEREAS, the City awns a conduit system located in certain portions of the City's right-of- way; WHEREAS, in April of 2011, City issued a Request for Proposals ("RFP") to lease portions of the City's conduit system to private communications companies. Digital West was the only company that responded to the City's RFP or otherwise showed any interest in leasing the City's conduit system; WHEREAS, on September 20, 2011, City and Digital West entered into that certain Agreement for Installation of Conduit and Conduit Use ("Agreement") whereby City agreed to provide a nonexclusive license to a portion of the City's conduit system for use by Digital West in exchange for web hosting services and other related services (the "Prado Conduit Project"). A copy of the Agreement is attached hereto as Exhibit "A" and incorporated herein by this reference; WHEREAS, by this First Amendment, City desires to allow Digital West to expand its fiber optic network within the City by granting Digital West with a nonexclusive license to additional portions of the City's conduit system subject to certain terms and conditions; and WHEREAS, for purposes of efficiency, the terms and conditions of this new project will be added to the Agreement pursuant to this First Amendment. AGREEMENT NOW THEREFORE, in consideration of their mutual promises, City and Digital West agree as follows: Recitals. The recitals above are true and correct and are incorporated into the body of this Agreement by this reference. 2. Capitalized Terms. All capitalized terms not defined herein shall have that same meaning as set forth in the Agreement. 3. Term. Unless otherwise agreed in writing between City and Digital West, the term of this First Amendment shall run concurrent with the term of the Agreement as set forth in Section 19, and may be independently extended for two (2) additional five (5) year terms, Packet Pg. 75 Attachment 1 t�'a subject to the notification procedures set forth in Section 19.1 of the Agreement and mutual agreement of the parties. 4. Scope of Agreement. Section 2 of the Agreement is hereby amended to add the following subsections regarding the new project: 2.4 Pursuant to this First Amendment, the scope of services is hereby amended to include the additional scope described below: 2.4.2 City hereby grants to Digital West a nonexclusive license to use additional portions of the City's Conduit System to install, operate and maintain Cable and Innerducts at the locations depicted in Attachment 2 to this First Amendment attached hereto and incorporated herein by this reference (the "Conduit License"). City and Digital West each acknowledge and agree that the Conduit License entails approximately 22090 linear feet of Conduit. City and Digital West each acknowledge and agree that Sections 2.3.1 — 2.3.6 of the Agreement apply to Digital West's use of this portion of the City's Conduit System as provided in this First Amendment. 5. Fees and Compensation, Section 3 of the Agreement is hereby amended to add the following subsection. 3.1 In consideration of City granting to Digital West the Conduit License pursuant to this First Amendment, Digital West shall pay to City during the Initial Term, or any extension thereof or during any Successive Term, an annual Conduit license fee ("Conduit License Fee") in the amount of forty five cents ($0.45) per linear foot ($9,940 total) of Conduit licensed to Digital West under this First Amendment. The Conduit License Fee shall be paid on an annual basis with each payment due and payable on the beginning of each year, and prorated for partial years. The AT&T pricing guide was used to depict the industry standard. 3.1.1 The Conduit License Fee provided for in Section 3.1 above shall be subject to an adjustment every term anniversary following the Effective Date as follows: The base for computing the adjustment is the Consumer Price Index for All Urban Consumers — Los Angeles published by the United States Department of Labor, Bureau of Labor Statistics (the "Index"), which is published for the month nearest the commencement date for each annual term (the "Beginning Index"). If the Index published nearest the adjustment date (the "Extension Index") has increased over the Beginning Index, the basic annual rent until the next rent adjustment shall be set by multiplying the Conduit License Fee set forth in Section 3.1 above by a fraction, the numerator of which is the Extension Index and the denominator ►A Packet Pg. 76 Attachment 1 t�'a of which is the Beginning Index. In no case shall the basic annual rent be less than the basic annual rent set forth in Section 3.1 above. If the Index is discontinued or revised during the Lease term, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. G. Incorporation of Terms and Conditions of Agreement. All provisions in the Agreement shall apply to this First Amendment. Except as modified herein, all terms and conditions of the Agreement shall remain in full force and effect. To the extent there is a conflict between terms and conditions between the Agreement and this First Amendment, the term or condition of this First Amendment shall control. IN WITNESS WHEREOF, City and Digital West have caused this First Amendment to be executed the day and year first written above. CITY OF SAN LUIS OBISPO Jan H. Marx, Mayor Attest: Anthony Mejia, City Clerk APPROVED AS TO FORM. J. Christine Dietrick, City Attorney 3 DIGITAL WEST NETWORKS, INC. M. Tim Williams Its: CEO Packet Pg. 77 Attachment 1 1t'a Exhibit "A" Location of Network Project Phase 1 — The sections of City conduit to be used by Digital West in Phase 1 are as follows: 1. Mill to Foothill — Entering at the City vault at Mill and Johnson, continuing on Johnson under Highway 101 to California St, to Foothill Rd and south to Ferrini Rd. 2. Hathway to Oak — Adjacent the 101 South exit at Montalhan St and Hathway, extending along Montalban to Oak St. at Lemon St. 3. Chorro St. — The Chorro St. conduit between Walnut St. and Pacific St. 4. Madonna Rd — From Elks Rd under Highway 101, extending the length of El Mercado to Madonna Rd, south to Los Osos Valley Road and west to Diablo Dr. Packet Pg. 78 Attachment 1 11.a Exhibit "B" G Packet Pg. 79 Attachment 1 11.a G Packet Pg. 80 A##a��lment 2 11'b SLO Comm Phase 1 �i 0 n "a a F0 Phase 1 Laguna Lake Park [r iTi N 0. 3� 'a E Foothill Blvd %mmmew Ramona Dr Luneta DV Serrano Dr O°rn4 101 5 Pe�lne�e� Ji k � t Mccol Fredericks 5 9 San Luis spo \ r o ti o 3e/ rf �r of°'�` cati y�5r �� rjr�Y nfi u 5andercock St branch St v y lvleadow Park Margarita Ave Prado Rd r Iiind Rd Mitchell ❑t Lawrence ❑r Ip N Miles -� 0 0.25 0.5 1 VJ F. 5 Map created on 2/23/2015 DIGITALIA". et Pg. 81 Attachment 3 t&t EXHIBIT D 1 APPENDIX 1 Pacific Sell ANNUAL FEES FOR POLE ATTACHMENTS AND CONDUIT OCCUPANCY Year Pole Attachment Rate 2010 $4.87 Year Conduit Occupancy Rate a 2010 (Innerduct) $0.451ft. o M .0 All pole and conduit license fees are for a period of one year from January 1 through December 31, effective January 1, 2010 and billable semiannually in advance in January and July of each year. E s D_ 1 a Revised 9/07 (2010 exhibit d - ratcs.doc) Packet Pg. 82 Attachment 4 1 AGREEMENT FOR INSTALLATION OF CONDUIT AND CONDUIT USE THIS AGREEMENT ("Agreement") is made, entered into, and effective as of the 20`}' day of September, 2011, by and between the City of San Luis Obispo (the "City") and Digital West Networks, Inc. ("Digital Vilest"). BACKGROUND A. The City has existing conduit infrastructure that runs substantially throughout the City's corporate boundaries and is used for a City-wide fiber optic network, as well as street and signal lights. B. A portion of the conduit currently lacks fiber optic cable resulting in a gap in the fiber optic loop desired by the City. The City desires to install fiber to close this gap. C. The City also desires the construction of additional conduit to connect certain portions of its City-wide fiber optic network in order to complete the desired fiber optic loop in the City. D. Digital West provides commercial fiber optic services to portions of the City and seeks to expand its coverage within the City. E. The City and Digital West desire to create a working relationship which will enable mutually beneficial conduit occupancy within portions of the City and the County of San Luis Obispo. F. The City has agreed to grant to Digital West a nonexclusive license to certain specified conduit for the purpose of installing fiber optic cables for use by both the City and Digital West. Digital West has agreed to install City -owned fiber optic cable within the specified conduit for use by the City. G. The City has further agreed to grant to Digital West a nonexclusive license to a portion of the City's conduit system for use by Di gi tal West. NOW, THEREFORE, in consideration of their mutual promises, the Parties agree as follows: 1.0 DEFINITIONS For the purpose of this Agreement, the following terms when used herein shall have the fallowing meanings: 1.1 "Cable" means the fiber optic cable, the fiber contained therein, and associated splicing connections and enclosures. 1.2 "Conduit" means a structure, usually underground, which may contain, among other things, one or more Innerducts. I Packet Pg. 83 Attachment 4 it'd 1.3 "City Conduit System" means the conduits constructed by the City including any combination of Innerducts, Conduits, Manholes, hand holes, and vaults joined to form an integrated whole. 1.4 "Fiber" means filaments of dielectric material designed for the purpose of light - wave transmission. 1.5 "Innearduct" means a single enclosed raceway within a single Conduit within which the Cable will be placed. 1.6 "Manhole" means a subsurface enclosure which the City's qualified personnel may enter and use for the purpose of installing, operating and maintaining Cable in the Conduit System. 1.7 "Party" means either Digital West or the City, with the plural ("Parties") meaning both Digital West and the City. 1.8 "Strands" means individual fiber optic strands. 10 SCOPE OF AGREEMENT 2.1 Subject to the provisions of this Agreement, City agrees to issue to Digital West a nonexclusive license authorizing the placement of Digital West's Cable in the City's Conduit System in locations specified in Exhibit A. Digital West will also provide access to additional Conduit and will install Fiber to complete a redundant loop of Fiber to the City's Corporation Yard on Prado Road. Digital West will further provide virtual hosted servers and support service to the computer room at Damon Garcia. This entire project shalt be referred to as the "Prado Conduit Project". Any future projects will be negotiated on a case -by -case basis. 2.1.1 The Prado Conduit Project will require Digital West to intercept the City's vacant Conduit on the West side of Broad Street at Damon Garcia Maintenance Road. Digital West will provide the City with access to approximately 120' of Digital West vacant Conduit to cross Broad Street. Digital West will intercept existing City Conduit on the west side of Broad Street and install a new Conduit between the Digital West hand hole and the farmer Caltrans conduit on the East side of Broad Street. Digital West will install, terminate, and test 12,000 feet of 168 Strand Fiber from the City's Corporation Yard on Prado Road and will splice the Fiber at the City hand hole at the South side of Level 3 on Sacramento Drive. Digital West will place the City owned 24 strand lateral cable from the existing City Man Hole shown on page 3 of 3 of Exhibit A. to the computer room at Damon Garcia. Where possible, Digital Vilest will install appropriately sized Innerducts to fit into the Conduit System to accomplish the Prado Conduit Project. Digital West will terminate and perform end -to -end testing on the completed Fiber segment to the City's satisfaction and will splice a point-to-point circuit between the City hand hole at the South side of Level 3 at Sacramento Drive and Digital West hand hole. All other assumptions and cost estimates are set forth in Exhibit A. 2.1.2 The City will issue required permits at no cost to Digital West for the Prado Conduit Project, which includes installation of Cable and construction to fill in gaps in the 2 Packet Pg. 84 i Attachment 4 City's Conduit System. The City will, at its expense, apply for and secure any other required permits from other agencies for the Prado Conduit Project, if any. 2.1.3 Digital West, or its contractors, shall be solely responsible for the design, installation, construction and testing of the Prado Conduit Project. Digital West shall be solely responsible for all costs and expenses associated with the Prado Conduit Project, except as stated in 2.1.2. Costs associated with correcting any preexisting conditions that prevent successful installation of fiber cable shall be shared equally between both parties. 2.1.4 All existing Conduit shall remain and all Conduit constructed pursuant to this Agreement shall become the property of the City. The City shall be responsible for the maintenance of the Conduit and compliance with all Underground Service Alert (USA) marking and notifications as part of its USA network. The City shall further be required to maintain GIS Conduit shape files and maintain the City's Conduit database by noting the conduits) subject to the terms of this Agreement. 2.1.5 Digital West shall be responsible for performing, by themselves or with subcontractors reasonably acceptable to both Parties, maintenance and management of the Digital West Cable installed in the Conduit. The City shall be responsible for performing maintenance and management of the City Cable installed in the Conduit. 2.2 In addition to completion of the conduit installation as described above, Digital West has agreed to provide certain hosted services that will benefit the City, as described in Exhibit B. These services will be reviewed by the City periodically, not less than every five years, and services of like value will be agreed upon as appropriate. 2.3 The City hereby grants to Digital West a nonexclusive license to use the City's Conduit System to install, operate and maintain Cable and required Tnnerducts as part of. the Prado Conduit Project as specified herein and in Exhibit A. 2.3.1 No use, however extended, of Conduit Systems or payment of any fees or charges required under this Agreement shall create or vest in Digital West any casements or any other ownership of property rights of any nature in the Conduit System. 2.3.2 Neither this Agreement; nor any license granted hereunder shall constitute an assignment of any of the City's rights to use the public or private property containing the Conduit System. 2.3.3 Nothing in this Agreement shall be construed as granting Digital West any right to occupy any specific part of the City's Conduit System or to compel the City to grant Digital West the right to occupy any specific part of the City's Conduit System except as specified herein. 2.3.4 The Parties agree that the City's right to locate and maintain its Conduit System and to operate its Conduit System in conjunction therewith in such a manner as will best enable the City to fulfill its own service requirements is in no manner limited by this Agreement. 3 Packet Pg. 85 Attachment 4 2.3.5 Nothing contained in this Agreement is intended by the Parties to require the City to construct, reconstruct, retain, extend, place or maintain any Conduit, Manhole or other facility for use by Digital West when such facility is not needed for the City's own service requirements. 2.3.6 The Parties intend that nothing contained in this Agreement should act as a limitation, restriction, or prohibition against the City with respect to any agreement or arrangement which the City has heretofore entered into, or may in the future enter into, with others not Parties to this Agreement regarding the Conduit System covered by this Agreement. If such an agreement with a third party makes rearrangements of Digital West's Cable necessary, Digital West agrees to cooperate in such rearrangement work. 3.0 FEES AND CHARGES Tn consideration of being permitted to occupy space in the City's Conduit System, Digital West shall provide the City with the services to complete the redundant City loop of Fiber as described herein and the hosted services set forth in Exhibit B. The hosted services shall be reviewed by the City periodically, not less than every five years, and services of like value shall be agreed upon as appropriate. Whenever Digital West is obligated by any terns of this Agreement to reimburse the City for costs, such costs will be determined by the City using the City's cost accounting systems used for recording capital and expense activities. 4.0 PRACTICES 4.1 All Cable installed in the Conduit System by Digital West shall be installed and maintained in accordance with the requirements and specifications of the then current editions of the National Electrical Code (NEC}, the National Electrical Safety Code (NESQ, and the California Electric Code (CEC), each of which w-c incorporated by reference in this Agreement, and the rules and regulations of the Occupational Safety and Health Act of 1970 (OSTTA) and in compliance with any lawful rules or orders now in effect or that may hereafter be issued by the City or any other authority having jurisdiction. 4.2 If Digital West's Cable extends from the City's Conduit System to the system of another party, Digital West will comply with the same safety and engineering requirements and specifications as set forth in this Agreement in any such connecting section(s). 4.3 The location of Digital West's Cable_ in each Conduit will be subject to approval of the City. 4.4 Digital West and its employees, agents and contractors are prohibited from entering any portion of the City's Conduit System not specifically authorized under this Agreement. 4.5 Digital West shall be responsible for the maintenance of its Cable. H Digital West's Cable, or any part thereof, is not maintained in accordance with the requirements of this Agreement and Digital West has not corrected the violation within 60 days from receipt of written notice thereof from the City, the City may at its own option correct said conditions and 4 Packet Pg. 86 Attachment 4 bill Digital West for the cost of the work. The City will attempt to notify Digital Vilest in writing prior to performing such work whenever practicable. 4.6 The City shall cooperate with Digital West in good faith to assist in maintenance of Digital West's Cable to the extent such maintenance requires access to the City's Conduit System. The City will attempt to notify Digital West in writing prior to performing work pursuant to Sections 4.5 or 4.6 whenever practicable. When the City reasonably believes, however, that conditions pose an immediate threat to the safety of the City's employees or the public, interfere with the perfon-nonce of the City's service obligations, or pose an immediate threat to the physical integrity of the City's Conduit System, the City may perform such work and/or take such action at Digital West's expense that it deems necessary without first giving written notice to Digital West and the City shall be indemnified by Digital West for such work in accordance with Article 13.4 of this Agreement. As soon as practicable thereafter, City will advise Digital West in writing of the work performed or the action taken and endeavor to arrange for re -accommodation of Digital West's Cable so affected. Digital West shall be responsible for paying the City for all costs incurred by the City in taking action under this subsection. 4.7 Digital West's Cable placed in the City's Conduit Systems roust meet all of the following physical design specifications: 4.7.1 All cables must be electrically non-conductive cable; provided, Digital West shall be entitled to install as part of its Cable a tracer cable to enable the location of such Cable; 4.7.2 New construction splices in Digital West's Cables shall be located in Manholes, pull boxes or handholds; and 4.7.3 The maximum permissible diameter of any cable of Digital West and the number of Digital West's Cables to be placed in any of City's Conduits shall be determined by City based on the size and shape of the Conduit or Innerduct as more fully set forth in Exhibit A. 4.8 If Digital West constructs a Conduit which is to be connected to any of the City's Manholes, such Conduit shall be sealed against the entry of gases or liquids at the opening to the Manhole, and if Digital West's Conduit enters a building it shall also be sealed where it enters the building. 4.9 The City may rearrange Digital West's Cable to accommodate the placing of the City's Cables in the Conduit System. The City shall be indemnified by Digital West for such work in accordance with Article 13.4. 4.10 The City's service restoration requirements shall take precedence over any and all work operations of Digital West in the City's Conduit System. 5.0 REGULATORY COMPLIANCE 5.1 Digital West shall be responsible for obtaining from the appropriate persons any 5 Packet Pg. 87 Attachment 4 11.d required authorization to construct, operate and/or maintain its Cable on public and/or private property before it occupies any portion of a Conduit System located on such property. The City agrees to cooperate with Digital West at Digital West's request to obtain such authorizations. The City retains the right to require evidence that appropriate authorization has been obtained before any prelicense survey work is commenced by the City. Digital West's obligation under this Section includes, but is not limited to, its obligation to obtain all necessary approvals to occupy rights -of -way, and to pay all costs associated therewith, except as specified in Section 2 herein. 5.2 Cable installed by Digital West in the City's Conduit System must serve a lawful purpose, and the use of such Conduit System must comply with applicable regulatory rulings, local, state and federal law. 5.3 No license granted under this Agreement shall extend to any portion of a Conduit System in which the placement of Digital West's Cable would result in a forfeiture of rights of the City to occupy the property on which such Conduit System(s) are located. If the existence of Digital West's Cablc in a Conduit System would cause such a forfeiture, Digital West understands that its Cable will be removed after receipt of written notification from the City. The City will perform such removal at Digital West's expense after the expiration of 60 days from the receipt of said written notification and the City shall be indemnified by Digital West for such work in accordance with Article 13.4 of this Agreement; and Digital West agrees to pay the City the cost thereof in accordance and for all losses and damages that may result. G'x11•►T$101 DMI 6.1 The Parties and their subcontractor(s) as the case may be shall have access to the Conduit and fiber 24-hours per day, 7-days per week as necessary for the proper maintenance and/or restoration; provided, however, such access shall be coordinated with the other Party. Before beginning any non -emergency, scheduled maintenance, each Party or its subcontractor shall give the other Parties at least 24 hours advance notice. Notwithstanding the foregoing, each Party shall have unlimited access (and without prior notice to the other Party) to its individually owned Access Points, vaulting, termination rooms, junction morns and Manholes for purposes of ingress and egress to splices and terminations. 6.2 In the event of an emergency, unless other wise agreed upon, the Party responsible for maintenance and repairs shall perform maintenance and/or restoration of the Conduit or Fiber and shall notify the other Party as soon as practicable. Each Party shall agree to mutually support each other during restoration activities and endeavor to restore each Party's "Lit" or "active" fibers in alternating groups, before performing any other maintenance required. hereunder. 7.0 RELOCATION 7.1 Caused By Others. In the event that another entity requires the transfer, rearrangement or relocation of any portion of the Conduit, each Party shall pay its respective share of all reasonable costs of the transfer, rearrangement or relocation in accordance with the allocation set forth and assuming that both Parties are required to relocate. Unless otherwise 6 Packet Pg. 88 Attachment 4 mutually agreed , relocation costs shall be shared based on the proportionate number of fiber Strands within the Cable(s), for example two cables will be calculated: Digital West: 288 Strands (63%) City: 168 Strands (37%) 7.2. Initiated by the Parties. Unless otherwise mutually agreed, in the event that both Parties are required to relocate for reasons initiated by one of the other Parties, then the initiating Party shall be responsible for and shall pay for or reimburse the other Party for its reasonable costs of relocation. In the event that both Parties jointly want to initiate a relocation project for their mutual benefit, they shall pay their respective share of casts as agreed upon at that time. 7.3. Relocation Plan. Regardless of the reason for the relocation, the Parties shall work cooperatively together in developing and implementing a relocation plan that best meets the needs of both Parties in ensuring minimal disruption to their operations. The Parties shall use their best efforts to identify an alternate location for the Cable. In the event the Parties are unable to agree on a mutually suitable alternate location for the Cable, then either Party may relinquish its rights to any of the benefits of this Agreement for that portion of the Cable subject to relocation. 8.0 REMOVAL OF CABLE At the expiration or other termination of this Agreement, the City shall have the right to require the removal of Digital West's Cable at Digital West's expense. If Digital West does not remove its Cable within 60 days following service of written notice by the City, the City may remove the Cable and the City shall be indemnified by Digital West for such work in accordance with Article 13.4 of this Agreement. 9.0 AUTOMATIC TERMINATION OF LICENSE Any license issued pursuant to this Agreement shall automatically terminate when Digital West ceases to have authority to construct and operate its Cable on public or private property at the location of the particular Conduit covered by the license. 10.0 INSPECTION OF DIGITAL WEST'S CONDUIT SYSTEM 10.1 The City reserves the right to make periodic inspections at any time of any part of Digital West's Cable occupying the City's Conduit System. 10.2 The City will give Digital West reasonable advance written notice of such inspections, except in those instances where safety considerations justify the need for such inspection without delay. 10.3 The making of periodic inspections or the failure to do so shall not operate to impose upon the City any liability of any kind whatsoever or relieve Digital West of any responsibility, obligations or liability whether assumed under this Agreement or otherwise 7 Packet Pg. 89 Attachment 4 existing. 11.0 UNAUTHORIZED OCCUPANCY OR ACCESS 11.1 If any of Digital West's Cable are found occupying any portion of any of the City's Conduit System for which no City approval has been issued and remains in effect, then the City, without prejudice to its other rights or remedies under this Agreement, may give written notice to Digital West of such discovery, and if, within thirty (30) days of such notice, Digital West has not either caused the removal of such Cable as provided under this Agreement or Obtained approval from the City for the placement and maintenance of such Cable, then the City may terminate this Agreement and remove Digital West's Cable at Digital West's expense, and the City shall be indemnified by Digital West for such work in accordance with Article 13.4 of this Agreement. 11.2 No act or failure to act by the City with regard to said unlicensed use shall be deemed as ratification of the unlicensed use and any license issued shall not constitute a waiver by the City of any of its rights or privileges under this Agreement or otherwise; provided, however, that Digital West shall be subject to all liabilities, obligations and responsibilities of this Agreement in regards to said unauthorized use from its inception. 12.0 TAXES 12.1 As used in this Section 12, "Tax" or "Taxes" shall mean any and all taxes, fees, assessments, charges, levies, together with any penalties, fines, or interest thereon (hereinafter collectively referred to as "Taxes") imposed by any authority having the power to tax, including any city, county, state, or federal government or quasi -governmental agency or taxing authority. 12.2 Digital West shall be responsible for any and all sales, use, income, gross receipts or other Tax assessed on the basis of revenues received by Digital West pursuant to its use of the Conduit System and Digital West shall be solely responsible for any personal property Taxes relating in any way to the Digital West Cable located in the Conduit System. If applicable, Digital Vilest shall reimburse the City for Digital West's proportionate share of Taxes attributable to the Digital West Cable (determined as the fraction of the single Digital West Cable over the total number of Cables), if the City is assessed and pays any Tax; provided Digital West shall not be liable for payment of any penalties, fines or interest payable with respect to such Taxes paid by the City, except to the extent any penalty, fine or interest is payable as a result of any negligent action or omission of Digital West. The patties shall cooperate to minimize adverse tax consequences and may mutually amend this Agreement to improve their respective company's tax positions. 13.0 LIABILITY AND DAMAGES 13.1 EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMLNT, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY 8 Packet Pg. 90 Attachment 4 11'd OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, rvIPLIBD OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCRANTABI1LFFY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY CABLES, FIBERS, CONDUIT OR ANY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALl_ OF WHICH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED. THIS SECTION SHALL NOT APPLY TO HOSTED SERVICES PORTION OF THIS AGREEMENT. 13.2 The City shalt exercise reasonable precaution to avoid damaging Digital West Cable and shall make an immediate report to the Digital West of the occurrence of any such damage caused by its employees, agents or contractors. The City agrees to reimburse the Digital West for all reasonable costs incurred by Digital West for the physical repair of such Cable damaged by the negligence of the City, however, the City shall not be liable to Digital West for any interruption of Digital West's service or for interference with the operation of Digital. West's Cable, or for any other special, indirect, or consequential damages arising in any manner whatsoever out of the use of Conduit System or the City's actions or omissions in regards thereto and Digital West shall indemnify and hold harmless the City, its employees, agents and contractors from and against any and all claims, demands causes of action, costs, and attorneys' fees of whatever kind resulting therefrom. 13.3 Digital West shall exercise reasonable precaution to avoid damaging the City Cable and shall make an immediate report to the City of the occurrence of any such damage caused by its employees, agents or contractors. Digital West agrees to reimburse the City for all reasonable costs incurred by the City for the physical repair of such Cable damaged by the negligence of Digital West, however, Digital West shall not be liable to the City for any interruption of the City's service or for interference with the operation of the City's Cable, or for any other special, indirect, or consequential damages arising in any manner whatsoever out of the use of Conduit System or Digital West's actions or omissions in regards thereto and the City shall indemnify and hold harmless Digital West, its employees, agents and contractors from and against any and all claims, demands causes of action, costs, and attorneys' fees of whatever kind resulting therefrom, 13.4 Digital West shall indemnify, protect and hold harmless the City from any and all claims, demands, causes of action and costs, including reasonable attorneys' fees, which arise directly or indirectly from the construction and operation of Digital West's Cable, including but not limited to, taxes, special charges by others, claims and demands for damages or loss from intellectual property infringement, for libel and slander, for trespass, for unauthorized use of television or radio broadcast programs and other program material and from and against all claims, demands and costs including attorneys' fees for infringement of patents with respect to the manufacture, use and operation of Digital West's Cable in combination with the Conduit System or otherwise. 13.5 Digital West shall indemnify, defend, and hold harmless the City from any and all claims, demands, causes of action and costs, including reasonable attorneys' fees, which arise directly or indirectly from any work performed by the City that may be necessitated by the installation, maintenance, presence, use or removal of Digital West's Cable. 9 Packet Pg. 91 J Attachment 4 `j 14.0 INSURANCE 14.1 Without limiting any obligations or liabilities of Digital West under this Agreement, Digital West shall provide and maintain for the term of this Agreement, at its own expense, without reimbursement, insurance coverage in farms and amounts prescribed by the City in Exhibit C. 14.2 Digital West's insurance policies shall include the City as an additional insured. Digital West hereby waives all rights of recourse, including any right to which another may be subrogated, against the City for personal injury, including death, and property damage. Digital West's policies of insurance required by subparagraphs 14.1. through 14.3 shall be primary insurance and non-contributing with any other insurance maintained by the City. All policies are to provide the City with 30 days` prior written notice of cancellation or any material adverse change in conditions. Digital West shall provide the City with Certificates of Insurance issued to the City and additional insured endorsements evidencing coverage currently in effect upon execution of and for the duration of this Agreement. 14.3 Digital West shall be fully responsible for any deductible or self -insured retention amounts contained in its insurance program or for any deficiencies in the amounts of insurance maintained. 15.0 AUTHORIZATION NOT EXCLUSIVE The City shall have the right to grant, renew and extend rights and privileges to others not parties to this Agreement, by contract or otherwise, to use the Conduit System covered by this Agreement. 1.6.0 ASSIGNMENTS OF RIGHTS 16.1 The City shall have the right to assign or transfer this Agreement at its solc discretion. 16.2 Except to Digital West's Affiliates, Digital West shall not assign or transfer this Agreement, any license issued pursuant to this Agreement or any authorization granted by this Agreement, and this Agreement shall not inure to the benefit of Digital West's successors or assigns, without the prior written consent of the City which consent shall not be unreasonably withheld. No assignment will be granted (or reasonably withheld) without 60 days' prior written notice furnished by Digital West to the City. 16.3 In the event such consent or consents are granted by the City, then the provisions of this Agreement shall apply to the assignee and Digital West agrees to bind such successor and provide proof of the successor's assumption of the obligations of this Agreement. 16.4 Digital West shall not sub -license to a third party the City's Conduit System, provided this Section shall not affect Digital West's right to use or offer capacity of Digital 10 Packet Pg. 92 Attachment 4 West's Cable, nor its ability to grant rights of use to individual fibers in Digital West's Cable. Such action shall constitute a material breach of this Agreement. Fri V.-VIR Il :11 * ICI W11 all] 11,0 1 Failure of the City or Digital West to take action to enforce compliance with any of the terms of conditions of this Agreement or to give notice or declare this Agrecment or any authorization granted hereunder terminated shall not constitute a waiver or relinquishment of any term or condition of this Agreement, but the same shall be and remain at all times in full force and effect. 18.0 TERMINATION OF AGREEMENT 18.1 This Agreement shall automatically cease and terminate whenever there is filed either by Digital West or against Digital West in any court pursuant to any statute, either of the United States or any state, a petition in bankruptcy or insolvency, or for reorganization, or for the appointment of a receiver or a trustee of all or substantially all of Digital West's property, or whenever Digital West makes a general assignment for the benefit of creditors; provided, however, the City shall have the discretion to allow Digital West a reasonable period of time within which to settle, compromise, resolve or cure the circumstances leading to such termination. 18.2 Notwithstanding anything contained in Article 11.0, City shall have the right to terminate this entire Agreement or any license issued hereunder whenever Digital West is in default of any term of this Agreement, including but not limited to the following conditions: 18.2.1 If Digital. West's Cable is used or maintained in violation of law or in aid of any unlawful act or undertaking; or 18.2.2 ff any authorization which is required of Digital West by any governmental or private authority for the construction, operation and maintenance of Digital West's Cable is denied or revoked; or 18.2.3 If the insurance carrier shall at any time notify the City or Digital West that the policy or policies of insurance, required under Article 14.0 hereof, will be canceled or changed and if a new policy meeting the requirements of Article 14.0 has not been provided, this Agreement shall terminate upon the effective date of such cancellation or change, unless the City elects to take such action necessary to keep the policy in effect; or 1.8.2.4 If any occurrence such as act of war, government action, Force Majeure or act of God causes either party, without fault or negligence, to be unable to meet any or all provisions of this Agreement. 18.3 The City will promptly notify Digital West in writing of any condition(s) arising under Article 18.2 above. Digital West agrees to take immediate corrective action to eliminate any such condition(s) and shall confirm in writing to the City within 30 days following receipt of such wri tten notice that the cited condition(s) has(have) ceased or been con ected. if Digi tal West 11 Packet Pg. 93 Attachment 4 it'd fails to discontinue or correct such condition(s) and/or fails to give the required confirmation within a reasonable period of time, dispute resolution shall be pursued. If resolution of the dispute is pursued without success, either party may immediately terminate this Agreement. In the event of termination of this Agreement or any of Digital West's rights, privileges or authorizations hereunder, the City may remove Digital West's Cable within six (6) months of written notice of its intention to do the same, provided, however, that Digital West shall be liable for and pay all fees and charges pursuant to terms of this Agreement to the City until Digital West's Cable are actually removed from the City's Conduit System, and Digital West shall indemnify the City for such work in accordance with Article 13.4. 19.0 TERM OF AGREEMENT 19.1 This Agreement shall continue in effect for a term of five (5) years ("Initial Term"). Subject to applicable laws and regulations, either Party may terminate this Agreement at the end of the Initial Term by giving to the other Party written notice of an intention to terminate the Agreement at least six (6) months prior to the end of the Initial Term, Alternatively, this Agreement may be extended for up to six additional five (5) year terms upon the request and mutual agreement of the Parties. At least 6 months prior to any extension of this Agreement, the Parties shalt review the terms and conditions of the Agreement and identify in writing any modifications that either party may propose. The Parties will confer over any proposed changes and attempt in good faith to reach agreement on any modifications. Any modifications must be approved by the City Council. Upon failure to give notice of termination or of request for extension, this Agreement shall automatically continue in force upon the same terms and conditions on a yearly basis ("Successive Term") subject to the same notice and termination procedure as the Initial Term. 19.2 Even after the termination of this Agreement, Digital West's responsibility and indemnity obligations shall continue with respect to any claims or demands arising from Digital West's occupation of the City's Conduit System or otherwise arising by Digital West's actions during the term of this Agreement. 20.0 AMENDING AGREEMENT; CHANGES IN LAW 20.1 Notwithstanding other provisions of this Agreement, the terms and condition of this Agreement shall not be amended, changed or altered except in writing and with approval by authorized representatives of both Parties. 20.2 If any legislative, regulatory, judicial or other governmental decision, order, determination or action, or any change in applicable law, materially affects any material provision of this Agreement, the rights or obligations of a Party hereunder, or the ability of a Party to perform any material provision of this Agreement, at Digital West's request, the Parties shall promptly renegotiate in good faith and amend in writing this Agreement in order to make such mutually acceptable revisions to this Agreement as may be required in order to conform the Agreement to applicable law. 21.0 NOTICES 12 Packet Pg. 94 Attachment 4 21.1 Unless otherwise provided herein, all notices and communications concerning this Agreement shall be in writing and addressed as follows: If to the City: City Manager City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 If to Digital West: 3620 Sacramento Dr, Suite 102 San Luis Obispo, CA 93401 Attn: Bob Fasulkey, Vice President of Engineering Email: metrofiber@digitalwest.net 21.2 Unless otherwise provided herein, notices shall be sent by certified U.S. Mail, return receipt requested, or by commercial overnight delivery service which provides acknowledgement of delivery. Such notices shall be deemed delivered: if sent by U.S. Mail, ten (10) calendar days after deposit, or if sent by commercial overnight delivery service, upon verification of receipt. 22.0 ENTIRE AGREEMENT This Agreement supersedes all previous agreements, whether written or oral, between the City and Digital West for placement and maintenance of Digital West's Cable in Conduit Systems within the geographical area covered by this Agreement; and there are no other provisions, terms or conditions to this Agreement except as expressed herein. 23.0 SEVERABILITY No provision of this Agreement shall be interpreted to require any unlawful action by either Party. ff any Section of this Agreement is held to be invalid or unenforceable, then the meaning of that Section shall be construed so as to render it enforceable to the extent feasible. If no feasible interpretation would save the Section, it shall be severed from this Agreement with respect to the matter in question, and the remainder of the Agreement shall remain in full force and effect. However, in the event such a Section is an essential element of the Agreement, the parties shall promptly negotiate a replacement Section that will achieve the intent of such unenforceable Section to the extent permitted by law. 24.0 GOVERNING LAW 13 Packet Pg. 95 j Attachment 4 The validity, performance and all matters relating to the effect of this Agreement and any amendment hereto shall be governed by the laws of the State of California. Any action brought to enforce this Agreement or in connection with this Agreement shall be brought in a court of competent jurisdiction in San Luis Obispo County, California. 25.0 FORCE MAJEllRE Neither Party shall be in default under this Agreement if any failure or delay in performance is caused by strike or other labor dispute; accidents; acts of God; fire; flood; earthquake; lightning; unusually severe weather; material or facility shortages or unavailability not resulting from such Party's failure to timely place orders therefor; legal inability to access property; condemnation or the exercise of rights of eminent domain; war or civil disorder; or any other cause beyond the reasonable control of either Party hereto. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. Notification shall be given by the excused Party to the other Party, of the cause and of the estimated duration, when possible. 26.0 INDEPENDENT CONTRACTOR The performance by the City and/or Digital West of all duties and obligations under this Agreement shall he as independent contractors and not as agents of the other Party, and no persons employed or utilized by a performing Party shall be considered the employees or agents of the other. Neither Party shall have the authority to enter into any agreement purporting to bind the other without its specific written authorization. The Parties agree that this Agreement does not create a partnership between, or a joint venture of the City and Digital West. 27.0 MISCELLANEOUS 27.1 The headings of the Articles in this Agreement are strictly for convenience and shall not in any way be construed as amplifying or limiting any of the terms, provisions or conditions of this Agreement. 27.2 In construction of this Agreement, words used in the singular shall include the plural and the plural the singular, and "or" is used in the inclusive sense, in all cases where such meanings would be appropriate. 27.3 This Agreement may be amended only by a written instrument executed by both Parties to this Agreement. 27.4 No failure to exercise and no delay in exercising, on the part of either Party hereto, any right, power or privilege hereunder shall operate as a waiver hereof, except as expressly provided herein. Any waiver by either Party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless and until agreed to in 14 Packet Pg. 96 i Attachment 4 writing by both Parties. 27.5 In the event of a conflict or difference between the provisions of this Agreement and any Exhibit, this Agreement shall prevail. 29.0 COUNTERPARTS This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in duplicate on the day and year first written above. City of San Luis Obispo: ify. Marx, :Mayor ATTEST: oe Elaina Cana, bfty Clerk I41».IGIV:4DIF-My . Christine Dietrick, City Attorney Digital Rest 1\e rks: by: 1 w► �--� :�1 :O.w• S Title: �, p 15 Packet Pg. 97 86 '6d IMMd 193nn,vllolo 0 N .¢ N Q. Q] O y 41 m "D C V4' Z3 r. m �- tis n c ❑ �' ❑ _. c Q m 41 m .a M ra ev bz- 4 -C7 H ro q r0 M v+ E W Q] y y L Q CL — C - 12 ..0 = Lo "� m -00, di > 03 av a] w $i 3 c ar c O C Q 6 Q *r Q % 03 L u m 41 `q ro 4 O Q 7 rr7 id C 16 m is p r99 q��� N d 2Z y L 6 o ym'v m o ra c aai ro a- ❑N'y nNsa UJ 4D c v� v y [rj y � L N Q) N tl] i a7 v �l C ai 4 ro O C +' Ga +' 0 pG ?� +��• L O, 0 am � Q Q Q @ Ql L 'R_D y C) VI. v Q µ IIJ 03 y i3 7 d Q t to -qt-1 �i l.1 % C7 M W ❑ Y Q�•� Li yQ _ O V} ro Z 4- N N Q a_+ ❑ O tia Q 47 7 N C 3 ,n I q� U u wbaa` .D to M m ❑ C �, 91 u pro' Q O C M ' 0 rii °' CD Q V Cl 1,04 u ry V w +�+ OJ (4 i m ro o L o` L4 �' n Ar 4+ C ❑ a y 'C3 im+ r'ss L � Yt C ;;• U .� W C T g' o s o Nto bio 7 7+ C C di OCL E 7 Q + id C ❑ p a] 4•- vi p Q n 4 +A aQ+ 41 dl 4 ' , Q fp L+ ,Qj [O Ln 3 y N L7 rG ECyyL ra Q❑ rip X ❑ m ❑ ` L1 Ly C [ 7 N x Q y 0La y5y�� V ro ri C i ni ui kc r: co ui id r: oG Oi v� 3 rr-+ 12 2 E So I aged b llq!4x3 ® ffir-AtIMAILO � 66 'Bd 10)13Ld ub,su 3 po's 00614 V llgl4x3 i - S W 004 '15d TOADed E kanal aL c � rr v jr7B.ljrj peoAq �C E JO E RSed b IMMX3 13 E z u a 0 � O E 9 Ll Exhibit B Hosted Services 12- DIGITALWEST Digital West Networks, Inc. Quote of Services Customer: City of SLO Date: 9/9/11 Term: 5-year QuoteM 090911-SLOQTW Qty Description Monthly Setup 1 Virtual Hosted Server, Gold Level $150.00 $75.00 1 Virtual Hosted Server, Platinum Level $225.00 $115.00 1 250 G8 Additional LUN Storage $50,00 $0.00 1 5 TB Archival Storage - SLO $750,00 $0.00 1 FastE Metro Fiber IP Transit Fa€lover Connection $1,800.00 $1,500.00 1 G€gE Metro Fiber Private Pipe to DW Data Storage $3,000.00 $500.00 1 Server/System/Network Monitoring Included 1 IP's supplied as needed Included $5,975.00 $2,190.00 Additional Terms: • Virtual Hosted Servers are supported with the Digital West Cloud Infrastructure, fully redundant and secure. ■ DWNi will provide redundant power, HVAC, bandwidth and security, 24/7/365, • Gold Level VHS includes 1x 2.66 GHx vCPU, 60 Gig Storage,1 Gig RAM ■ Platinum Level VHS includes 2x 2.66 GHx vCPLI, SO Gig Storage, 2 Gig RAM • LUN Storage via iSC51 connection and is fully redundant across 2 local SANS and one out-af-region SAN • Archival Storage provided on RAID rellabie SAN with Near -line SAS drives, up to 5TB of monthly transfer. Additional storage can be added at $.15/GB per month. DW-Metro Fiber Fastlither net provides a full 100Mbps IP transit connection to Dig€taI West's Internet Backbone. This circuit will be setup with SGP for fallover scenarios when the City's main IP Transit line is unavailable. ' DW Point to point GigE Metro Fiber pipe will connect your network directly to the Digital West Data Storage for a clean 1Gbps connection to your off -site data. ' Included with the VHS and Metro Finer is the DWNI System/Network/Security Monitoring. All monthly and setup charges listed within this Quote will be offset under the terms and conditions of the MOLL between Digital West and the City of SLO. 1st Month Setup Total VALUE OF SERVICES: $5,975.00 $2,190.00 $9,165.06 Quote was created by Tim Williams and is valid for 30 days from the date above Wgital West 805.781.9378 www.digitalwest.net Initial: Packet Pg. 101 Attachment 4 Exhibit C Page 1 of 3 Insurance Requirements 1.5 Gonerd LiabiJi en to ile iab' i Insuranc :The Contractor shall maintain is full force and effect for the duration of this contract, bodily and personal injury, (including death resulting therefrom), property damage, and autornobile liability insurance with an insurance carrier satisfactory to City.. This insurance shall include, but not be limited to, protection against claims arising fmm bodily and personal injury, including death resulting therefrom, and damage to property, resulting from any act or occurmnee'arising out of Contractor's operations in the perbramance of this contract, including, without ]imitation, acts involving vehicles. A. Minimums-Sc000pe of Insurance Coverage shall be at least as broad as: • Insurance Services Office Commercial General Liability. coverage (occurrence form -COIQ 1_0_Vnior.to. 1993 or CG 20.2Q 47 b4 R2!h_CG_ 20 37 I4�1 or the exact giya_1 t _ deterruined byjhtp • htsumnce Services Office form number CA 0001 (ed. II$7) covering Automobile Liability, coda I (any auto). 13. Minimum Limits of Mirance Contractor shall maintain limits no -less than: • General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage, If Commercial General Liability or other form with a general aggregate limit is used, either the gezacrA aggregate limit shall apply separately to this projectllocation or the general aggregate limit shall be twice the required occurrence limit. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. The Contractor shall tither: (I) require each of his subcontractors to procure and to maintain during -the life of his subcontract bodily and personal injury liability and property damage insurance of the type and in the same amounts as specified above, or (2) insure the activities of his subcontrmetors in his own policy. 1.6 Endorsement Regitirements: ne following endorsements must he submitted with certificates of insurance. A. If the insurance policy covers on an "accident" basis, it must be charged to "occurrence". B. The policy must cover PERSONAL INRaY as well as bodily injury. C. BROAD FORM Property Damage Liability must be afforded. D. City must be named as an additional insured under the coverage afforded with respect to the work beingperforrned under the contract. City's officials, officers, directors and employees and agents or volunteers shall also be included as additional insured. E. An endorsement shall be attached which states that the coverage is PRIMARY INSURANCE and that no other insurance maintained. by City shaft be called upon insurance Requirements Page 1 Packet Pg. 102 Attachment 4 Exhibit C Page 2 of 3 Policy Number: COMMERCIAL GENERAL LIAB=y THIS ENDORSMENT CHANGES THE POLICY, PLEASE REAM IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS- (FORM B) This endorsement modifica insurance provided under the following. COMMERCIAL GENERAL LIABIL n y 8CHEUULE Nance of Person or Organization. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section H) is amended to include as an insured the person or organization shown. in the Sohedule, but Only with respect to liability arising out- of "your work' for that insured by or for you_ Coverage prodded by this policy to the Additional Insured(s) shown in the Schedule shall be primary Insurance and any other iasurance maintained by the Additional lusutrcd(s) shall be excess and non-contributory, but only if required of the Named Insured and by written contract. C G 20 10 1185 Copyright Insuraztce Services Office, Inn. 1984 Certificate # 2032 insurance Requirements Page Z �,f fri r N M LM 0 rr c z m E C a a� c r c m E m m L CD a N p1 i 'o v �L 0 a c s c� a Packet Pg. 103 Exhibit C Attachment 4 Page 3 of 3 }� �}` policy Number: COMMERCIAL GEihiUM L1011 ITY THIS ENDORSMENT CHANGES THE POLICY. PLEASE READ IT CAREF, ULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS (FORM B) T Ms endorsement modifies insurance provided under the following. CON MERCIAL GENERAL LIABILITY SCUMULE Nacre of Person or Organization: (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section R) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of"your work" for that insured by or for you. Coverage provided iby this poliey to the Additional Insureds) shown In the Schedule shall be primary Insurance and any other insurance maintained by the Additional Insured(s) shall be excess and non-coutributory, but only if requtred of the Named Insured and by written contract. CG 24 10 1185 Copyright Insurance Services Office, Inc. 1984 Insurance Requirements Page 3 C-Crd&ate # 2032 Packet Pg. 1 704 7A OIGITALWEST 11.e Digital west Networks. Inc. 3620 Sacramento or, #102 888.781.9378 www.digitalwest.net San Luis Obispo, CA 93401 805,781,9379 City of San Luis Obispo — Digital West — Network Infrastructure Proposal — Phases 2 & 3 Objectives • Connect City of San Luis Obispo buildings to the Digital West Metro Fiber Network. • Add redundancy to existing City of San Luis Obispo buildings. • Connect gaps in the City of San Luis Obispo's existing fiber network. • Expand Digital West's use of existing city communications conduit. Proposed Construction by Digital West for the City of San Luis Obispo ■ Place 1200' of aerial fiber along Walnut St. from Chorro St. to 1042 Walnut St. • Place 1900' of aerial fiber from Toro St. at the Montereypalm Alley north to Walnut St then west to 1106 Walnut St. ■ Place 4350' of underground conduit and fiber along the south side of Los Osos Valley Rd. from Foothill Rd. to just west of Diablo Dr. ■ Place 4600' of aerial fiber from the corner of Johnson St. & Bishop St. south to the corner of Johnson St. & Laurel Ln. Requested Air Space Share in City Communications Conduit ■ From the corner of South St. & Beebee St. south along Beebee St. then west on Bridge then south along Higuera to Elks Ln. at the El Mercado Ln. crossing. Utilize 4790' of City conduit. From the corner of South St. & S. Higuera St. north on Higuera to the corner of Marsh St & Broad St. Utilize 2590' of City conduit. • From Chorro St. at Hwy 101 south along Chorro to Santa Barbara St. then south to the corner of Santa Barbara St. and Broad St. Utilize 6200' of City conduit. ■ From Johnson St. at Hwy 101 south along Johnson St. to the corner of Johnson St. and Marsh St. Utilize 2825' of City conduit. Connectivity Colocation Cloud Services Packet Pg. 105 7A OIGITALWEST 11.e Digital west Networks. Inc. 3620 Sacramento or, #102 888.781.9378 www.digitalwest.net San Luis Obispo, CA 93401 805,781,9379 • The greater downtown area as shown on the highlighted map. Utilize 7080' of City conduit, ■ Chorro St. from Foothill Rd. to Palm St. Utilize 4800' of City conduit. ■ From the corner of Johnson St. & Marsh St. south on Johnson St. to the corner of Johnson St. & Bishop 5t. Utilize 2685' of City conduit. ■ From the corner of Johnson St. & Laurel Ln. south on Laurel Ln. to Orcutt Rd. then west to Sacramento Dr. then south to the vault at Sacramento Dr. & Capitolo Rd. Utilize 6770' of City conduit. • From the corner of Southwood Ln. & Laurel Ln. west to Sinsheimer Park. Utilize 1145' of City conduit. Connectivity Cnlocation Cloud Services Packet Pg. 106 SECOND AMENDMENT TO AGREEMENT FOR INSTALLATION OF CONDUIT AND CONDUIT USE This Second Amendment to Agreement for Installation of Conduit and Conduit Use ("Second Amendment") is made, entered and effective as of this day of , 2015 (the "Effective Date") by and between the City of San Luis Obispo, a municipal corporation and charter city ("City") and Digital West Networks, Inc., a California corporation ("Digital West"). RECITALS WHEREAS, the City owns a conduit system located in certain portions of the City's right-of- way; WHEREAS, in April of 2011, City issued a Request for Proposals ("RFP") to lease portions of the City's conduit system to private communications companies. Digital West was the only company that responded to the City's RFP or otherwise showed any interest in leasing the City's conduit system; WHEREAS, on September 20, 2011, City and Digital West entered into that certain Agreement for Installation of Conduit and Conduit Use ("Agreement") whereby City agreed to provide a nonexclusive license to a portion of the City's conduit system for use by Digital West in exchange for web hosting services and other related services (the "Prado Conduit Project"). A copy of the Agreement is attached hereto as Exhibit "A" and incorporated herein by this reference; WHEREAS, on March 31, 2015, City and Digital West entered into that certain First Amendment to Agreement for Installation of Conduit and Conduit Use (the "First Amendment") whereby City granted a nonexclusive license to Digital West to utilize a portion of the City's conduit system subject to certain terms and conditions. The term Agreement as utilized herein shall refer to the Agreement for Installation of Conduit and Conduit Use and the First Amendment Agreement for Installation of Conduit and Conduit Use; WHEREAS, by this Second Amendment, City desires to allow Digital West to further expand its fiber optic network within the City by granting Digital West a nonexclusive license to additional portions of the City's conduit system subject to certain terms and conditions; and WHEREAS, for purposes of efficiency, the terms and conditions of this new project will be added to the Agreement pursuant to this Second Amendment. AGREEMENT NOW THEREFORE, in consideration of their mutual promises, City and Digital West agree as follows: 1. Recitals. The recitals above are true and correct and are incorporated into the body of this Second Amendment by this reference. Packet Pg. 107 2. Capitalized Terms. Except as set forth herein, all capitalized terms not defined herein shall have that same meaning as set forth in the Agreement. 3. Term. Unless otherwise agreed in writing between City and Digital West, the term of this Second Amendment shall run concurrent with the term of the Agreement as set forth in Section 19, and may be independently extended for two (2) additional five (5) year terms, subject to the notification procedures set forth in Section 19.1 of the Agreement and mutual agreement of the parties. 4. Scope of Agreement. Section 2 of the Agreement is hereby amended to add the following subsections regarding the new project: 2.5 Pursuant to this Second Amendment, the scope of services is hereby amended to include the additional scope described below: 2.5.1 City hereby grants to Digital West a nonexclusive license to use additional portions of the City's Conduit System to install, operate and maintain Cable and Innerducts at the locations depicted in Attachment 2 to this Second Amendment attached hereto and incorporated herein by this reference (the "Conduit License"). City and Digital West each acknowledge and agree that the Conduit License entails approximately 71,224 linear feet of Conduit. City and Digital West each acknowledge and agree that Sections 2.3.1 — 2.3.6 of the Agreement apply to Digital West's use of this portion of the City's Conduit System as provided in this Second Amendment. 5. Fees and Compensation. Section 3 of the Agreement is hereby amended to add the following subsection. 3.2 In consideration of City granting to Digital West the Conduit License pursuant to this Second Amendment, Digital West shall pay to City during the Initial Tenn, or any extension thereof or during any Successive Term, an annual Conduit license fee ("Conduit License Fee") in the amount of forty five cents ($0.45) per linear foot ($32,050.80 total) of Conduit licensed to Digital West under this Second Amendment. Digital West acknowledges and agrees that this Conduit License Fee shall be in addition to and on top of the Conduit License Fee due under the First Amendment. For the sake of clarity, Digital West acknowledges that the total Conduit License Fee under the First Amendment and this Second Amendment is $41,990.80 per year, subject to any CPI increases. The Conduit License Fee shall be paid on an annual basis with each payment due and payable on the beginning of each year, and prorated for partial years. The AT&T pricing guide was used to depict the industry standard. ►a Packet P9. 108 3.2.1 The Conduit License Fee provided for in Section 3.1 above shall be subject to an adjustment every term anniversary following the Effective Date as follows: The rase for computing the adjustment is the Consumer Price Index for All Urban Consumers — Los Angeles published by the United States Department of Labor, Bureau of Labor Statistics (the "Index"), which is published for the month nearest the commencement date for each annual term (the "Beginning Index"). If the Index published nearest the adjustment date (the "Extension Index") has increased over the Beginning Index, the basic annual rent until the next rent adjustment shall be set by multiplying the Conduit License Fee set forth in Section 3.1 above by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. In no case shall the basic annual Conduit License Fee be less than the amount set forth in Section 3.1 above. If the Index is discontinued or revised during the term, such other government index or computation with which it is replaced shall be used in order to obtain substantialIy the same result as would be obtained if the Index had not been discontinued or revised. 6. Incorporation of Terms and Conditions of Agreement. All provisions in the Agreement shall apply to this Second Amendment. Except as modified herein, all terms and conditions of the Agreement shall remain in full force and effect. To the extent there is a conflict between terms and conditions between the Agreement and this Second Amendment, the term or condition of this Second Amendment shall control. IN WITNESS WHEREOF, City and Digital West have caused this Second Amendment to be executed the day and year first written above. CITY OF SAN LUIS OBISPO DIGITAL WEST NETWORKS, INC. L-02 Jan H. Marx, Mayor Tim Williams Its: CEO Attest: Jon Ansolabehere, Interim City Clerk APPROVED AS TO FORM: 3 Packet Pg. 109 J. Christine Dietrick, City Attorney V. 0 z w E .0 w ►4 Packet Pg. 110 M'Od 4W to e » \ ) U.!\ k ¥E \/ � � | � � | ; #■ ƒ go— •:. m ::.: PM �. . � � Q � f b LL- © e c j! \ \ � lop ]]| | � ! a a © ;«■ c & � --�1 ;||| \-D