HomeMy WebLinkAboutDigital West Networks, Inc 09.20.11AGREEMENT FOR INSTALLATION OF CONDUIT AND CONDUIT USE
THIS AGREEMENT ( "Agreement ") is made, entered into, and effective as of the 20`h
day of September, 2011, by and between the City of San Luis Obispo (the "City ") and Digital
West Networks, Inc. ( "Digital West ").
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 Digital 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
following 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.
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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 " Innerduct" 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.
2.0 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 shall 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 former 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 West 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
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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 conduit(s) 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 Innerducts 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 easements 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.
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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
In 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 terms 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 (NESC), and the
California Electric Code (CEC), each of which are incorporated by reference in this Agreement,
and the rules and regulations of the Occupational Safety and Health Act of 1970 (OSHA) 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. If 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
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bill Digital West for the cost of the work. The City will attempt to notify Digital West 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 performance 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 System must 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
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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 Cable 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.
6.0 ACCESS
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 rooms and Manholes for purposes of
ingress and egress to splices and terminations.
6.2 In the event of an emergency, unless otherwise 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
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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 costs 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
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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.
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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 West 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 parties 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
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY
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OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED OR
STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY,
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 shall 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.
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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 forms 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.
16.0 ASSIGNMENTS OF RIGHTS
16.1 The City shall have the right to assign or transfer this Agreement at its sole
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
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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.
17.0 FAILURE TO ENFORCE
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 Agreement 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 If 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
18.2.4 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 written notice that the cited condition(s) has(have) ceased or been corrected. If Digital West
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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 shall 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
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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. If 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
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 MAJEURE
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 be 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
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.
28.0 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:
Ja . Marx, Mayor
ATTEST:
Elaina Cano, tlify Clerk
APPROVED AS TO
Christine Dietrick, City Attorney
15
Digital West Ne rks:
by: / t w" V :\\
Title: GC O
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OIGITALWEST
Exhibit B
Hosted Services
Digital West Networks, Inc.
Quote of Services
Customer: City of SLO Date: 9/9/11
Term: 5 -year Quote #: 090911- SLOQ -TW
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 GB Additional LUN Storage
$50.00 -
$0.00
1
5 TB Archival Storage - SLO
$750.00
$0.00
1
FastE Metro Fiber IP Transit Failover Connection
$1,800.00
$1,500.00
1
GigE 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 GHz vCPU, 60 Gig Storage,1 Gig RAM
• Platinum Level VHS Includes 2x 2.66 GHz vCPU, 80 Gig Storage, 2 Gig RAM
• LUN Storage via iSCSI connection and is fully redundant across 2 local SANS and one out -of- region SAN
k
• Archival Storage provided on RAID reliable 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 FastEthernet provides a -full 100Mbps IP transit connection to Digital West's Internet -
Backbone. This circuit will be setup with BGP for failover 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 Fiber 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
MOU between Digital West and the City of SLO.
1st Month Setup Total
VALUE OF SERVICES: - $5,975.00 $2,190.00 $8,165.00
Quote was created by Tim Williams and is valid for 30 days from the date above
Digital West 805.781.9378 www.digitalwest.net
Initial:
Exhibit C
Page 1 of 3
Insurance Requirements
1.5 General Liability and AAu omobile Liability Insurance : The Contractor shall maintain
in full force and effect for the duration of this contract, bodily and personal injury,
(including death resulting therefrom), property damage, and automobile liability
insurance with an insurance carrier satisfactory to City.. This insurance shall include,
but not be limited to, protection against claims arising from bodily and personal
injury, including death resulting therefrom, and damage to property, resulting from
any act or occurrence arising out of Contractor's operations in the performance of this
contract, including, without limitation, acts involving vehicles.
A. Minimum Scope of Insunme�
Coverage shall beat least as broad as:
• Insurance Services Office Commercial General Liability. coverage (occurrence
form CG 20 10 prior to 1993 or CG 20 10 07 04 with CG 20 37 10 01 or the
exact equivalent as determined by the City) .
• Insurance Services Office form number CA 0001 (ed. 1/87) covering
Automobile Liability, code 1(any auto).
B, Minimum Limits of Insurance
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 general aggregate limit shall apply
separately to this project/location 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 either: (1) 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 subcontractors in his own policy.
1.6 Endorsement Requirements: The following endorsements must be submitted with
certificates of insurance.
A. If the insurance policy covers on an "accident" basis, it must be changed to
"occurrence ".
B. The policy must cover PERSONAL INJURY 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 being performed 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 shall be called upon
Insurance Requirements
Page 1
Exhibit C
Page 2 of 3
ail I 'qx la g nt x% "ie .
Policy Number: COMMERCIAL GENERAL LIABILITY
THIS ENDORSMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED- OWNERS, LESSEES OR
CONTRACTORS (FORM B)
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY
Name of Person or Organization:
SCHEDULE
(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 E) 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 by this policy to the Additional Insureds) shown in the Schedule
shall be primary Insurance and any other insurance maintained by the Additional
Insureds) shall be excess and non - contributory, but only if required of the Named
Insured and by written contract.
CG 20 1011 85 Copyright Insurance Services Office, Inc. 1984
Insurance Requirements
Page 2
Certificate # 2032
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1
,7
Exhibit C
Page 3 of 3
Policy Number: COMMERCIAL GENERAL LIABILITY
THIS ENDORSMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS (FORM B)
- This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY
Name of Person or Organization:
SCHEDULE
(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 11) 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 by this policy to the Additional Insured(s) shown in the Schedule
shall be primary Insurance and any other insurance maintained by the Additional
Insured(s) shall be excess and non - contributory, but only if required of the Named
Insured and by written contract.
CG 20 10 11 85 Copyright Insurance Services Office, Inc. 1484
Insurance Requirements
Page 3
CerMcate # 2032