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HomeMy WebLinkAbout10-20-2015 Item 11 - Amendment No 2 to the City Digital West Fiber Optic Infrastructure Agreement 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. DISCUSSION 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): 11 Packet Pg. 73 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 exits at Montalban St and Hathway, extending along Montalban to Oak St. at Lemon St. 3. Chorro St. – The Chorro 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. ALTERNATIVE 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 b - 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 11 Packet Pg. 74 1 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 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, 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: 1. 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, Attachment 1 11.a Packet Pg. 75 At t a c h m e n t : a - D i g i t a l W e s t . F i r s t A m e n d m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 2 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 Attachment 1 11.a Packet Pg. 76 At t a c h m e n t : a - D i g i t a l W e s t . F i r s t A m e n d m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 3 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. 6. 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 DIGITAL WEST NETWORKS, INC. By:_____________________________ Tim Williams Its: CEO Attachment 1 11.a Packet Pg. 77 At t a c h m e n t : a - D i g i t a l W e s t . F i r s t A m e n d m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 4 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 Montalban 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. Attachment 1 11.a Packet Pg. 78 At t a c h m e n t : a - D i g i t a l W e s t . F i r s t A m e n d m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 5 Exhibit “B” Attachment 1 11.a Packet Pg. 79 At t a c h m e n t : a - D i g i t a l W e s t . F i r s t A m e n d m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 6 Attachment 1 11.a Packet Pg. 80 At t a c h m e n t : a - D i g i t a l W e s t . F i r s t A m e n d m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 0 0.5 10.25 Miles SLO Comm Phase 1 Phase 1 Map created on 2/23/2015 Attachment 2 11.b Packet Pg. 81 At t a c h m e n t : b - M a p ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Revised 9/07 (2010 exhibit d - rates.doc) EXHIBIT D / APPENDIX 1 Pacific Bell ANNUAL FEES FOR POLE ATTACHMENTS AND CONDUIT OCCUPANCY Year Pole Attachment Rate 2010 $4.87 Year Conduit Occupancy Rate 2010 (Innerduct) $0.45/ft. 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. D-1 Attachment 3 11.c Packet Pg. 82 At t a c h m e n t : c - P r i c i n g ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 83 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 84 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 85 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 86 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 87 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 88 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 89 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 90 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 91 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 92 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 93 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 94 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 95 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 96 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 97 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 98 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 99 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 100 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 101 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 102 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 103 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Attachment 4 11.d Packet Pg. 104 At t a c h m e n t : d - O r i g i n a l C i t y - D i g i t a l W e s t A g r e e m e n t ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Digital West Networks. Inc. 3620 Sacramento Dr. #102 888.781.9378 TEL www.digitalwest.net San Luis Obispo, CA 93401 805.781.9379 FAX 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. 11.e Packet Pg. 105 At t a c h m e n t : e - C o n d u i t S h a r e P r o p o s a l p h a s e 2 a n d 3 ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) Digital West Networks. Inc. 3620 Sacramento Dr. #102 888.781.9378 TEL www.digitalwest.net San Luis Obispo, CA 93401 805.781.9379 FAX  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 St. 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. 11.e Packet Pg. 106 At t a c h m e n t : e - C o n d u i t S h a r e P r o p o s a l p h a s e 2 a n d 3 ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 1 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. 11.f Packet Pg. 107 At t a c h m e n t : f - S e c o n d A m e n d m e n t D W L i c e n s e 9 - 3 0 - 1 5 ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 2 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 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 ($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. 11.f Packet Pg. 108 At t a c h m e n t : f - S e c o n d A m e n d m e n t D W L i c e n s e 9 - 3 0 - 1 5 ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 3 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 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 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 substantially 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 _____________________________ Jan H. Marx, Mayor Attest: _____________________________ Jon Ansolabehere, Interim City Clerk APPROVED AS TO FORM: DIGITAL WEST NETWORKS, INC. By:_____________________________ Tim Williams Its: CEO 11.f Packet Pg. 109 At t a c h m e n t : f - S e c o n d A m e n d m e n t D W L i c e n s e 9 - 3 0 - 1 5 ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 4 _____________________________ J. Christine Dietrick, City Attorney 11.f Packet Pg. 110 At t a c h m e n t : f - S e c o n d A m e n d m e n t D W L i c e n s e 9 - 3 0 - 1 5 ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t ) 11.g Packet Pg. 111 At t a c h m e n t : g - S L O K E Y M P - P r o g r e s s ( 1 0 9 4 : A m e n d m e n t N o . 2 - D i g i t a l W e s t )