HomeMy WebLinkAboutCity-Cal Poly Fiber Optic MOU 10-15-2002City of San Luis Obispo
and
California Polytechnic State University
MEMORANDUM OF UNDERSTANDING
FIBER OPTIC INFRASTRUCTURE PARTNERSHIP
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The Parties, the City of San Luis Obispo (City) and the California Polytechnic State
University, San Luis Obispo (Cal Poly) through this Memorandum of Understanding
(MOU), desire to create a working relationship between the two public entities which will
enable the development of a mutually beneficial Fiber optic network (ERL Project)
within the City of San Luis Obispo.
Whereas, the City has an existing Fiber Conduit which runs substantially throughout San
Luis Obispo; and
Whereas, the City has agreed to utilize its Conduit for development of a City -wide Fiber
optic network by installing Fiber optic cable within the Conduit; and
Whereas, Cal Poly has agreed to use its technical expertise and resources through the
CSU and its affiliated organizations to design, install and maintain a Fiber optic network
within the city of San Luis Obispo; and
Whereas, Cal Poly has agreed to create an Educational Redundant Loop (ERL) for the
purposes of creating a carrier neutral facility infrastructure for the benefit of the state and
in fulfillment of its mission as a public higher education institution; and
Whereas, Cal Poly as part of the California State University (CSU) is a point of presence
(POP) on the state wide network known as 4CNet administered by CENIC, an affiliated
CSU organization, and as such would benefit from an ERL; and
Whereas, the City has agreed to grant Cal Poly an irrevocable right to use the Conduit
necessary to create the ERL for an initial term of fifty (50) years; and
Whereas, Cal Poly has agreed to install a 144- strand Fiber optic Cable within the existing
Conduit network of the ERL and to grant an irrevocable right to the City to use 24 strands
of that Cable.
Therefore, in consideration of the mutual agreements contained herein, the Parties agree
as follows:
1. Definitions
For purposes of this MOU, the following terms are defined:
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A. "Cable" means the Fiber optic Cable, the Fiber contained therein, and associated
splicing connections and enclosures, each to be installed by or on behalf of Cal
Poly as part of the optical Fiber network and the ERL.
B. "Conduit" means a tube especially constructed for the purpose of placing and
enclosing Fiber optic Cable.
C. "Dark Fiber" means one or more strands of Fiber through which no associated
light, signal or light communication transmission is provided to furnish service.
D. "Fiber" means filaments of dielectric material designed for the purpose of light -
wave transmission.
E. "Lit Fiber" means Strands with respect to which an associated light, signal or
light communication transmission has been provided.
F. "Party" means either Cal Poly or City, with the plural ( "Parties ") meaning both
Cal Poly and City.
G. "Strands" means individual Fiber optic strands.
2. Responsibilities
2.1. The Cily shall:
A. Authorize Cal Poly to act as the primary contact to complete the design of the
ERL network to be integrated within the City's network of Conduit.
B. Issue required permits at no cost to Cal Poly for the ERL Project, which includes
installation of Fiber optic Cable and construction to fill in gaps in the existing
Conduit and pull Cable for the network.
C. Pay $40,000.00 towards the Fiber and the total incremental cost of construction
and installation for Fiber optic Cable that is for the sole benefit of the City and its
network. Payment for this work shall be made by City to Cal Poly upon
completion of the work described in the Scope of Work, attached hereto as
Exhibits A and B.
2.2. Cal Poles:
A. Design, furnish, install and construct the ERL Fiber optic Cable at its sole cost
and responsibility.
B. Install a 144 - strand Fiber optic Cable within the existing Conduit network of the
ERL and provide an irrevocable license to the City to use 24 Strands of that
Cable, as set forth in Exhibits A and B. Cal Poly agrees to complete the work
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associated with the City's 24 Strands of Fiber within 120 days after the full
execution of the awarded contract.
C. In accordance with applicable law, provide high -speed Internet and
communication access to the City facilities within 180 days after full execution of
this MOU.
D. For City utilized Fiber runs on Cal Poly campus lands, Cal Poly will perform the
installation of the Fiber and maintain the Fiber in accordance with the
requirements of this MOU and campus policy.
3. Scope of Work
In general, the ERL Project will create a redundant loop consisting of 120 strands of
Fiber to provide connectivity for communication and high -speed data between the Cal
Poly campus and its service providers' facilities, and a 24 Fiber strand redundant loop for
City purposes and facilities, for a total of the 144 Fibers. Any Non -ERL pathways for the
City and the 24 strands of Fiber to be installed in them are optional installations at the
City's discretion and cost. The anticipated Network including the ERL network and
attendant facilities is described in Exhibits A and B attached to this MOU.
Cal Poly and the CSU shall be responsible for the construction portion of the ERL
Proj ect.
4. Term
The term of this MOU shall commence on October 15, 2002 and expire on October 15,
2052 (Term), with such rights of termination as may be hereinafter set forth. The MOU
may be renewed upon mutual agreement of the Parties.
5. Termination
The Parties may terminate this MOU upon:
A. Mutual agreement of the Parties prior to the intended termination date; or
B. Urgent necessity in the event of a State or national emergency, as determined by
Cal Poly or the City; or
C. A material breach of any substantial provision of this MOU, which breach
remains uncured for 60 days after the breaching Party's receipt of written notice
of the breach from the other Party; except that if the breach cannot, in a
practicable manner, be cured within such 60 day period, the breaching Party shall
have such additional time as is reasonably necessary to cure the breach.
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D. In the event construction costs exceed available resources, this MOU may be
terminated by Cal Poly without penalty of any kind prior to construction or within
30 days of full execution of this MOU.
All 144 Strands of Fiber optic Cable not located on Cal Poly property shall become the
property of the City without demand or further action by the City at the expiration of the
Term of this MOU unless otherwise mutually agreed to by the Parties during the Term of
this MOU. With respect to the 144 Strands of Fiber optic Cable located on Cal Poly
property, 24 strands shall remain the City's property and 120 shall become Cal Poly
property at the expiration of the Term of this MOU. Cal Poly will not be obligated to
remove the Fiber optic Cable at the expiration of the Term. However, if this MOU is
terminated for cause by either Party prior to the expiration of the Term, the value of the
Fiber and its disposition shall be determined as part of the Termination.
6. Ownership and Licenses.
City agrees to provide to Cal Poly the irrevocable license to use the Conduit necessary to
create the ERL for the Term of this MOU and Cal Poly agrees that its use of City's
Conduit must not interfere with the operations of City. The Conduit is and shall remain
the property of the City for the Term of this MOU.
After Cal Poly's installation of 144 Strands of Fiber optic Cable pursuant to the terms of
this MOU, Cal Poly agrees to provide an irrevocable license to the City to use 24 Strands
of that Cable as set forth in Exhibits A and B for the Term of this MOU. The 24 Strands
of Fiber provided by Cal Poly to City shall be Dark Fiber. If City desires Lit Fiber, it
shall be City's exclusive responsibility at City's sole cost to light these 24 Strands of
Fiber. City agrees that its use of the 24 Strands of Fiber must not interfere with the
operations of Cal Poly. All 144 Strands of Fiber optic Cable shall remain the property of
Cal Poly for the Term of this MOU.
If during the Term of this MOU, Cal Poly extends any Conduit located within the City
limits and/or the geographical area reflected on map attached hereto as Exhibit A that
connects to and/or makes use of the system of Conduit and Fiber described in the Scope
of Work (Exhibits A and B), but excluding land owned by the CSU, Cal Poly shall allow
the City the option of licensing air space at no cost in the Conduit for up to 24 Strands of
Fiber.
If during the Term of this MOU, the City extends any Conduit located within the City
limits and/or the geographical area reflected on map attached hereto as Exhibit A that
connects to and /or makes use of the system of Conduit and Fiber described in the Scope
of Work (Exhibits A and B), the City shall allow Cal Poly the option of licensing air
space at no cost in the Conduit for up to 120 Strands of Fiber.
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Each Party agrees to take all necessary precautions to protect the other Party's property
from any physical damage and to keep such property in the same manner as such Party
protects its own similar property. Each Party agrees to keep the property free and clear of
all claims or liabilities of any nature whatsoever which arise from, or as a result of, the
any work performed by such Party.
7. Maintenance and Restoration.
7.1. City's Responsibilities:
For the duration of this MOU and any extensions thereof and at no cost to Cal Poly, City
agrees to:
A. Maintain the ERL Project Conduit;
B. Maintain all Underground Service Alert (USA) marking and notifications for the
ERL network as part of its USA network; and
C. Maintain City's GIS Conduit shape files and upon completion of task 7.2 (D)
below, maintain City's Conduit database.
7.2. Cal Poly's Responsibilities:
For the duration of this MOU and any extensions thereof and at no additional cost to
City, Cal Poly agrees to:
A. Contract for and administer a contract to install conduit, junction boxes, pull fiber
optic cable, signal interconnect cable, splice and terminate fiber optic cable in
various locations within the City of San Luis Obispo City Limits and the Cal Poly
Campus as shown and described in the Scope of Work as Exhibits A and B; or to
complete this work with Cal Poly staff.
B. Maintain and manage the ERL Fiber optic Cable.
C. Maintain all Fiber optic Cable, including the 24 Strands licensed to City residing
in the ERL.
D. Provide and maintain high -speed Internet and communication access to City
facilities with Cal Poly Fiber, not to exceed two Strands, in accordance with all
applicable law. (Cal Poly has no obligation to provide or maintain active
electronic devices at the City site of connectivity.)
E. Complete the data entry to the City's GIS Conduit database of all City Conduit
within the City limits in accordance with the timeframe set forth in section 2.2
(B).
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The Parties shall be responsible for performing, by themselves or with subcontractors
reasonably acceptable to both Parties, all construction, maintenance and repairs as
delineated above. Such maintenance and repairs shall be performed in a good and
workmanlike manner in accordance with the National Electrical Safety Code, the
National Electrical Code, applicable industry standards and regulations of applicable
Governmental Authorities.
The Parties agree to develop a mutually agreeable written Operational Management Plan
to address issues including scheduled maintenance, expected service levels, length of
outages, unscheduled outages, and commitments to restoration in accordance with the
timeframe set forth in section 2.2 (B).
8. Access.
The Parties and their subcontractor(s) as the case may be shall have access to the Conduit
and Fiber on a 24 -hours per day, 7 -days per week basis 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 as designated in the
applicable Scope of Work as shown in Exhibits A and B and as described specifically in
the Route description, attached hereto as Exhibit B. Both Parties shall have equal access
to vaulting, termination rooms, junction rooms and manholes for purposes of ingress and
egress to splices and terminations for all boxes shown on Routes 1 and 2 on Exhibit B.
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.
9. Relocation
9.1. Caused By Another Governmental Agency. In the event that another governmental
agency requires the transfer, rearrangement or relocation of any portion of the ERL
Project, each Party shall pay its respective share of all reasonable costs of the transfer,
rearrangement or relocation in accordance with the allocation set forth in the Scope of
Work attached hereto as Exhibits A and B, assuming that both Parties are required to
relocate. Unless otherwise mutually agreed to, relocation costs shall be shared based on
the proportionate use of Fiber Strands:
Cal Poly: 120 Strands (83 %)
City: 24 Strands (17 %)
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The Parties shall use their best efforts to identify an alternate location for the ERL
Project. In the event the Parties are unable to agree on a suitable alternate location for the
ERL Project, then either Party may terminate this MOU as outlined under Section 5
(Termination).
9.2. Initiated by the Parties. Unless otherwise mutually agreed to, 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 for their mutual benefit, they shall pay their respective share of costs as agreed
upon at that time.
9.3. 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 Parities in ensuring minimal disruption to their operations.
10. Additions and Changes.
In the event that a Party seeks changes in, additions to, or deletions from the Scope of
Work as shown in Exhibits A and B, the Party seeking changes, additions or deletions
shall promptly notify the other Party of (i) the proposed changes, additions or deletions;
(ii) the estimated cost of the proposed changes, additions or deletions; (iii) the effect, if
any, of the proposed changes, additions or deletions upon the scheduled completion of
the Work; (iv) whether additional Authorizations are required as a result of the proposed
changes, additions or deletions; and (v) the effect of the proposed changes, additions or
deletions upon the other Party's share of Project Costs. If both Parties agree in writing to
the proposed changes, additions or deletions, the Parties shall promptly proceed with the
performance of the work as so modified. The Project Costs and time for performance of
the work shall be equitably adjusted as necessary to reflect the impact of the agreed upon
changes, additions or deletions on the work and/or any Scope of Work.
11. Taxes.
If applicable, each Party shall pay its respective share of any present or future taxes, fees,
charges or assessments that either Party is required or obligated to pay by reason of the
construction, installation or operation of the ERL Project.
12. Condemnation.
Upon receipt of a formal notice of condemnation or other taking by eminent domain,
each Party shall notify the other Party immediately of any such proceeding threatened or
filed against any portion of the ERL Project. In the event and to the extent of any
condemnation or other taking by eminent domain of all or any part of the ERL Project, or
any property or rights relating thereto, then the proceeds thereof shall be equitably
apportioned between the Parties.
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13. Waiver of Compliance.
Failure of either Party to enforce or insist upon compliance with any of the terms or
conditions of this MOU shall not constitute a waiver or relinquishment of any such terms
or conditions. To the contrary, the same shall remain at all times in full force and effect.
14. Assi rng went.
Either Party may assign this MOU to another governmental agency or non - profit
organization with a consistent mission of that Party without the prior written consent of
the other. However, either Party must give the other Party thirty (30) days prior written
notice of any such assignment. The terms and provisions of this MOU shall extend to
and be binding upon and inure to the benefit of the successors and assigns of the
respective Parties hereto.
15. Sublease.
Nothing shall in any way restrict, modify, or alter either Party's right to lease, sublease,
license, sell, dispose of or utilize, in its sole discretion, its respective portion of the ERL
Project, subject to this MOU. All sublessees and licensees shall use the ERL Project in a
manner consistent with this MOU and the agreement between such Party and the
proposed subtenant or licensee (which agreement is hereinafter referred to as the "Lease ",
the said subtenant or licensee being hereinafter referred to as "Lessee ") shall in all
respects be subject to the terms and conditions of this MOU. For purposes of this MOU,
all acts and omissions of the Lessee shall be deemed acts and omissions of the Party who
owns or controls such portion of the ERL Project. Notwithstanding the foregoing, the
rights of the Parties to grant Leases shall be subject to the restrictions, contractual or
otherwise, imposed by any governmental authority or other third Party which owns or
controls the real property rights of way upon which the relevant portion of the ERL
Project is constructed.
16. Relationship of Parties.
City and the agents and employees of City in the performance of this MOU shall act in an
independent capacity and not as officers or employees or agents of Cal Poly and/or the
CSU, except as expressly provided by Cal Poly and/or the CSU. The employees of Cal
Poly and/or the CSU who participate in the performance of this MOU are not agents of
the City.
17. Severability.
If any one or more of the terms, provisions, covenants or conditions of this MOU shall to
any extent be declared invalid, unenforceable, void or voidable for any reason by a court
of competent jurisdiction, the finding or order or decree of which becomes final, none of
the remaining terms, provisions, covenants or conditions of this MOU shall be affected
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thereby, and each provision of this MOU shall be valid and enforceable to the fullest
extent permitted by law.
18. Notices.
All notices herein which are to be given or which may be given by either Party to the
other, shall be in writing and shall be deemed to have been given three (3) business days
after deposit in the United States Mail, certified and postage prepaid, return receipt
requested and addressed as follows:
To City: City Clerk
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
To Cal Poly: California Polytechnic State University,
San Luis Obispo, CA 93407
Attn: Matthew Roberts,
Director of Contract and Procurement Services
Nothing herein contained shall preclude the giving of any such written notice by personal
service, in which event notice shall be deemed given when actually received. The
address to which notices shall be mailed as aforesaid to either Party may be changed by
written notice given by such Party to the other as herein above provided.
19. Indemnity
Both Parties to this MOU shall indemnify, defend, protect, and save harmless the other,
and their directors, officers, employees, agents, and volunteers from any and all losses,
damages, or liabilities that may be suffered or incurred or which may arise out of or are in
any way connected with their respective acts, operations, or performance hereunder,
provided that any such losses, damages, or liabilities do not arise out of the sole
negligence or willful or intentional acts or omissions of the other Party or its directors,
officers, employees, agents or volunteers.
In the event a written request for indemnification and defense is made against a Party
hereto, the Party requesting indemnification and or defense shall promptly notify the
other Party and the notified Party shall assume the indemnification and defense thereof,
including the employment of legal counsel and payment of all related expenses. Once a
Party has been notified that the other Party has accepted tender, and it shall be
indemnified and defended under this paragraph, it shall have the right to employ separate
legal counsel and to participate in the defense of any legal action or proceeding, but the
indemnifying and or defending Party shall not be required to pay the fees or expenses of
such separate legal counsel. Nothing in this section precludes a Party from employing
legal counsel and defending itself against any claim prior to receiving written notification
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from the Party from whom indemnification and defense is sought that it shall be
indemnified and defended, but no legal costs encumbered prior to notification shall be, or
become, the responsibility of the notified Party.
20. Contractor's Indemnification of City
Cal Poly agrees to include in any construction contract that it enters into pursuant to this
MOU a provision which requires the contractor to indemnify and name the City as an
additional insured, as a third party beneficiary of that contract, on the same terms and
conditions that the contractor agrees to indemnify Cal Poly.
21. Dispute Resolution.
Any dispute arising under the terms of this MOU that is not resolved within a reasonable
period of time by authorized representatives of the City and Cal Poly shall be brought to
the attention of the City Administrative Officer (or designated representative) of the City
and the Vice President for Administration and Finance (or designee) of Cal Poly for joint
resolution. At the request of either Party, the CSU shall provide a forum for discussion of
the disputed item(s), at which time the Vice Chancellor, Business and Finance (or
designated representative) of the CSU shall be available to assist in the resolution by
providing advice to both Parties. If resolution of the dispute through these means is
pursued without success, either Party may seek resolution employing whatever remedies
exist in law or equity beyond this MOU. Despite an unresolved dispute, the Parties shall
continue without delay to perform their respective responsibilities under this MOU.
22. Governing Law and Venue.
This MOU is to be performed in San Luis Obispo County and shall be governed
exclusively by the provisions hereof and by the laws of the State of California. Any
action brought to enforce the MOU or in connection with this MOU shall be brought in a
court of competent jurisdiction in San Luis Obispo County, California.
23. Joint Work Product.
This MOU is the joint work product of both Parties hereto, accordingly, in the event of
ambiguity no presumption shall be imposed against either Party by reason of document
preparation.
24. Force Majeure.
Neither Party shall be liable to the other for any failure of performance under this MOU
due to causes beyond its control, including, but not limited to: acts of God, fire, flood or
other catastrophes; adverse weather conditions; material or facility shortages or
unavailability not resulting from such Party's failure to timely place orders therefor; lack
Memorandum of Understanding: Fiber Optic Infrastructure Partnership Page 10 of 11
of transportation; the imposition of any governmental codes, ordinances, laws, rules,
regulations or restrictions; national emergencies; insurrections; riots, wars; or strikes,
lock -outs, work stoppages or other labor difficulties; provided however, that said time
period shall be extended for only the actual amount of time said Party is so delayed. An
act or omission shall not be deemed to be "beyond its control" if committed, omitted or
caused by such Party, or its employees, officers, agents or affiliates, or by any
corporation or other business entity that holds a controlling interest in said Party, whether
held directly or indirectly.
By signing below the duly authorized Parties to this MOU agree to these terms and
conditions and agree to act in good faith. This MOU is not meant to circumvent any law
or requirement for either Party.
Ot
City of San Luis Obis o:
I "en Settle, ay r
Date: / G/ Z/ �
ATT b T:
Lee Price, City Clerk
APPROVED AS TO FORM:
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ATTACHMENTS: SCOPE OF WORK
Exhibit A: ERL Map
Exhibit B: Route Description
California Polytechnic State University:
atthew Roberts, Director
Contract and Procurement Services
Date: _ I 119110PI
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