HomeMy WebLinkAboutC2009-407 - 10/13/2009 - ApprovedFIBER OPTIC USE AGREEMENT BETWEEN
CITY OF CORPUS CHRISTI
AND
TELWEST NETWORK SERVICES
THIS FIBER OPTIC USE AGREEMENT is by and betweenthe City of Corpus Christi,
Texas, ("City") and TelWest Network Services Corporation ("TelWest" or "Lessee").
- _ -_ - - - RECi3'A~~ ----- -
l. The City of Corpus Christi, Texas ("City") is constructing and operating aCity-wide
Integrated WiFi Network for various City purposes.
- - ~, - - Tire £-ity desires to enter into an agreerne~t with...Lessee to der-mit the use--of p~tians_ of
the City owned or controlled Fiber Network by Lessee as set forth below and in Appendices A
and B attached hereto:
3. In exchange for Lessee's use of the City's Fiber Network, the Lessee agrees to provide
the City 120 mb of bandwidth from within the Lessee's serving area or on City Fiber Network
locations that are agreed upon by the Lessee and the City.
4. In consideration of the mutual covenants herein contained and for other good and
valuable consideration, the City and Lessee, the "Parties," agree as follows:
ARTICLE 1. RECITALS AND DEFII~TITIONS
1.1 The above stated recitals are true and correct and are by this reference incorporated herein
and made a part hereof.
1.2 For the purpose of this Use Agreement, unless otherwise provided herein, the terms,
phrases, words, abbreviations and their derivations shall have the meaning set forth
below. Words used in the present tense include the future tense, words in the single
number include the plural number, and words in the plural number include the singular.
The words "shall" and "will" aze mandatory, and "may" is permissive. Words not
defined shall be given their common and ordinary meaning.
Fiber Acceptance Date means the day that Lessee accepts the City's Fiber Optic Strands
as set forth herein.
Fiber Network means City owned or controlled Fiber Optic Strands, cable jacket,
conduit, manholes and handholes, and all associated wires cable and hazdwaze, extending
to the .Points of Demazcation specified in Appendix A, but does not include any of the
necessazy electronics to "light" the fibers, nor does it include fiber optic termination
equipment or regenerators.
Fiber Optic Strands or City Fibers means all fiber optic strands owned or controlled by
the City which may or may not be provide for use by TelWest depending upon the
context.
Point of Demarcation means site location where fiber terminates.
Right-Of-Way means the public and private rights-of-way within the City, including
streets, alleys, and public thoroughfazes, as the same now exist or may be hereafter
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10/13/09
TelWest Network Svcs.
extended or altered, and any location on, over or under, and any portion thereof, where
Fiber Network Facilities can be located.
ARTICLE 2. SCOPE OF AGREEMENT
2.1 Lessee shall have the exclusive use of two City Fiber Optic Strands in locations as set
forth in Exhibit A. The Fiber Optic Strands shall be used exclusively by Lessee from
within the City's existing fiber optic cable or City will construct new fiber optic cable and
shall provide the Lessee with additional City Fiber Optic Strands in the newly constructed
fiber optic cable as set out in Appendix A. Provided, however, nothing herein shall be
interpreted as requiring the City to construct or install new fiber facilities or equipment
other than as specified Appendix A.
2.2 Nothing in this Agreement shall be construed as preventing the City from continuing to
utilize and lease City Fiber Optic Strands other than those provided to Lessee.
AR PICLE 3: TERM= R~NE~VAL_
3.1. Term. This Agreement shall commence on day date of execution by City Manager,
(hereinafter "Effective Date") and shall continue for a period of five (5) years, unless
__ suoner_ _termirrated as _provided in this Agreement: The. Effective Date is
2010.
ARTICLE 4.
4.1 Required Rights. Lessee shall be responsible for (i) obtaining all required building
entrance permissions and inside building utilities to the extent not part of the Fiber
Network and except as otherwise provided in Appendix A, and (ii) obtaining any and all
permits, licenses, franchises and other governmental approvals that are specifically
required for Lessee's (as opposed to City's) use and operation of the Fiber Strands
following the Acceptance Date.
4.2 City shall be responsible for obtaining or causing to be obtained any rights,
authorizations, consents, necessary permits, certificates, licenses, franchises,
Rights-Of--Way, railroad, waterway, street and highway crossing rights or permits, and
other governmental approvals (or private approvals, as the case may be for
Rights-Of--Way) that are required or associated with its construction and operation of the
Fiber Network; (ii) that are required or necessary for the proper occupancy by the Fiber
Network of real property or fixtures (such as conduit, bridges or river crossings)
applicable not only to City or the underlying facility owner, but also to Lessee with
respect to the Lessee's use of City Fibers and its use of the Fiber Network; (iii) that
enable City to grant the use of City Fibers Strands to Lessee hereunder and perform its
obligations under this Agreement; and (iv) that allow for the use and operation by Lessee
of the Fiber Strands specified under this Agreement and associated Appendices; subject
to all terms and conditions set forth in this Agreement.
4.3 In the event that any portion of the Fiber Network, or the ducts, poles, trenches, or
Rights-Of--Way iri or upon which it shall have been installed is abandoned or becomes the
subject of a condemnation proceeding by any governmental agency or other party with the
power of eminent domain for public purpose or use, City shall pursue an award for its
interest and that of Lessee in such proceedings and the parties hereto agree to have any
such condemnation awards specifically allocated between the parties in a fair and
equitable manner. Upon its receipt of formal notice of condemnation or taking, City shall
notify Lessee immediately of any condemnation proceeding filed against the Fiber
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Network or the said ducts, poles, trenches, or Rights-Of--Way in or upon which said Fiber
Network shall be installed. City shall also notify Lessee of any similar threatened
condemnation proceeding and agrees not to sell the Fiber Network or such ducts, poles,
trenches or Rights-Of--Way to such acquiring agency, authority or other party in lieu of
condemnation without prior written notice to Lessee. .
4.4 In the event that the City needs to reclaim portions of the Fiber Network in a particular
location where the Lessee has been granted use of City's Fiber Network pursuant to this
Agreement, in order to meet public safety or other City requirements, the City shall
provide equivalent services provisioned as wavelengths or lit services on alternate fibers
of the Fiber Network after giving the Lessee at least ninety (90) days prior notice. In this
instance, City will make every attempt to provision other technologies available to avoid
disruption of the Lessee's service. Such events are rare and will only cause such action
: after all other avenues are exhausted, proper justification is provided;--arid authorization
by the City Manager, and Tel West authorized personnel are in agreement. It is expressly
recognized and understood by City that any costs incurred as a. result of providing
alternativ~anzt equivalent provisioned services will be born~by..the City....
ARTICLE 5. DELIVERY, ACCEPTANCE, WARRANTY
5.1 City shall complete all work necessary to deliver to Lessee all Fiber Optics Strands
provided pursuant to this Agreement. Such work shall include connecting the Fiber Optic
Strands to all access/connecting points described in Appendix A, perform .acceptance
testing of the Fiber Optic Strands in accordance with mutually agreed upon testing
specifications and deliver test results showing satisfaction of all testing specifications
agreed to by the parties.. Lessee shall have the right to review such test results and/or
conduct its own testing at its own expense, and reasonably object to any failure of the
Fibers to meet the applicable specifications in which case City will correct any noted
deficiencies, retest and provide new test results for Lessee's review and approval. The
date of Lessee's approval of the provided test results shall be the "Acceptance Date."
5.2 City warrants that the Fiber Optic Strands and Fiber Network have been or shall be
designed, engineered, installed and constructed (i) in compliance with any and all
applicable governmental laws, codes, ordinances, statutes and regulations; (ii) in
accordance with the terms, conditions and specifications set forth in this Agreement and
the attachments attached hereto; and (iii) in accordance with generally accepted industry
standards and practices.
ARTICLE 6. BILLING
6.1 The Parties acknowledge and agree, that in lieu of a fee as typically paid by Lessees for
the rights to use Fiber Optic Strands and the Fiber Network, and the performance of
installation, maintenance, and restoration services, the consideration for such rights and
services by City will be Lessee's provision of bandwidth services as detailed in Appendix
A to the City. Such provision of services from the Lessee to the City shall be deemed as
payment in full for the Fiber Optic Strands and maintenance services provided by City.
6.2 Where applicable, the agreed services provided by the Lessee will be verified via reports
the Lessee shall provide to City..
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6.3 City reserves the right to dispute reports from the Lessee which do not report outages
incurred.
ARTICLE 7. DISCLAIMER OF LIABILITY
7.1 Except as provided in Articles 5 and 12, the Lessee and City acknowledge that all
products and services provided by the other party aze provided on an "As Is" basis and
that neither the City, with respect to the Fiber Optic Strands provided by it to Lessee, nor
Lessee, with respect to the bandwidth provided by it to City, make any warranty of any
kind, expressed or implied, including, but not limited to, any warranty regazding the
reliability or suitability of any product or service for a particular purpose. City and
Lessee disclaim any warranty of merchantability or fitness for a particulaz purpose with
respect to the products or services provided by each of them, respectively.
7.2 No oral advice or written information provided by City or Lessee shall create or expand
-any representation or warranty nor shall the other party be entitled to rely on any such
information or advice.
7.3 Each party acknowledges and understands that neither City, with respect to the provided
-Fiber Optic Strands,- nor- Lessee, withrespect to the provided bandwidth, exereise~ny --
control over the nature, content, or reliability of the information delivered to the other
party from the Internet or vice versa.
7.4 Under no circumstances shall either party be held responsible for damages or loss
suffered by the other party, including but not limited to special, incidental, consequential,
or punitive damages, as a result of such other party's direct or indirect use of the Fiber,
bandwidth or other products or services provided by such pazty hereunder including, but
not limited to, errors, delays, loss of information, or interruptions in service caused by the
Lessee's or City's or a third parry's acts or failure to act.
7.5 The Lessee acknowledges that any connectivity service may be temporarily unavailable
for scheduled or unscheduled maintenance, and for other reasons within and without the
control of the City. City will notify Lessee in advance of planned intrusive activities on
the Fiber Network that may impair or eliminate signal continuity. Intrusive cable
activities aze those, which will require City to directly handle a fiber, ribbon or buffer
tube and aze scheduled during the "off-peak" hours, typically 8 PM to 6 AM local time.
City will use commercially reasonable efforts to perform planned intrusive activities
during of off-peak hours, but reserves the right to perform planned intrusive activities at
any time with Fourteen (14) calendar days prior notice if commercially necessary. Non-
intrusive cable activities and all other maintenance measures, which do not physically
expose a buffer tube, ribbon, or fiber, may be performed during regulaz business hours
without notice. Emergency repairs are not planned intrusive activities and aze not subject
to the terms of this paragraph. City will perform such scheduled. and unscheduled
maintenance in a manner which minimizes disruption of services and in accordance with
standazd industry practices.
7.6 Any extended outage or damage caused by negligent work or actions or improper
practices during such schedule or unscheduled maintenance shall not be considered a
temporary cessation due to scheduled or unscheduled maintenance under this Section.
Under no circumstances do any such errors, delays, loss of information, or interruptions
in service nullify or modify this agreement or any other agreement or contract entered into
by the City and the Lessee.
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ARTICLE 8. INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 Lessee will indemnify and hold City harmless against any and all claims, loss,
liability, damage and expense (including reasonable attorney's fees) arising out of (i) any
demand, claim, suit of judgment for damages to any property or bodily injury to or death
of any persons, including, without limitation, Lessee's agents and employees (including
payment under any workers' compensation law or under any plan for employee disability
and death benefits) which may arise out of or be caused by Lessee's use of the Fiber
Optic Strands and/or Fiber Network, or (ii) any claim made by a third party claiming
through Lessee or to whom Lessee may provide services using the Fiber Network,
including, but not limited to those claims arising out of any malfunctioning or failure of
the Fiber Network for any reason, including, but not limited to, any act or failure of City
or its agents, employees or contractors in the maintenance of the Fiber Network or
otherwise, or arising from any interruption or restriction of the fiber Network resulting
from any ordinance, rule, regulation or law or administrative or judicial order or decree.
- $.~ In -ail instances in which one Parry ("Indemnitar") -is obligated to indemnify atlot~er- ---
("Indemnitee") asprovided for in this Agreement, (i) Indemnitee shall give Indemnitor
written notice of all claims, damage, losses, suits, and any other event which is in any
way related to or asserted by Indemnitee as a basis for such obligation, which notice shall
be given immediately after Indemnitee becomes aware thereof, (ii) Indemnitor shall have
the sole right to control the defense of such matter and the sole right to determine the
disposition of such matter, (iii) Indemnitee shall furnish such available information and
assistance as may be reasonably required by the Indemnitor to assist in the disposition of
such matter and no disposition or settlement shall be made by Indemnitee of any matter
for which a claim of indemnification or to be held harmless will be made, without the
prior written consent of Indemnitor, which shall not be unreasonably withheld, delayed or
denied.
8.3 Limitation of Liability. Notwithstanding any provision of this Agreement to the contrary,
neither party shall be liable to the other for any special, incidental, indirect, punitive or
consequential damages, whether foreseeable or not, arising out of, or in connection with
such party's failure to perform its respective obligations or breach of its respective
representations hereunder, including, but not limited to, damage or loss of property or
equipment, loss of profits or revenue, cost of capital, cost of replacement services
(whether arising out of transmission interruptions or problems, .any interruption or
degradation of service or otherwise), or claims of Lessees, in each case whether
occasioned by any construction, reconstruction, relocation, .repair or maintenance
performed by, or failed to be performed by, the other party or any other cause whatsoever,
including breach of contract, breach of warranty, negligence, or strict liability, all claims
with respect to which such special, incidental, indirect, punitive or consequential damages
are hereby specifically waived.
ARTICLE 9. LESSEE RESPONSIBILITY -
9.1 The Lessee is responsible for protecting all account passwords (if applicable) and for any
authorized or unauthorized use made of Lessee's account and access. The Lessee agrees
to comply with the rules appropriate to any network to which Lessee may gain access via
the products and services of the City. The Lessee acknowledges that any proprietary,
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confidential, or otherwise valuable information that the Lessee desires to keep
confidential should not be transmitted over any part of the City of Corpus Christi Intranet,
nor reside on computers connected to the City of Corpus Christi Intranet (if applicable).
The Intranet is defined as any PC or resource that is part of the City of Corpus Christi
network and/or transmits City data. The Lessee will not transmit or make available
through the Intranet any material that is illegal, libelous, tortuous, or likely to result in
action against the City of Corpus Christi.
9.2 Where applicable, the Lessee agrees that under no circumstances will the Lessee use City
products or services, including, but not limited to electronic mail, in connection with the
sending of unsolicited electronic mail messages, commercial or otherwise, including, but
not limited to, the sending of unsolicited mass mailings from another service which in
any way implicates the use of the City of Corpus Christi products or services, or any City
of Corpus Christi electronic mail address. The Lessee assumes the risl;C of all amages
and injury associated with the use of City fiber provisioning services and products. The
Lessee agrees not to use fiber provisioning services or any products or services provided,
leased, rented, traded, or purchased from the City in a manner prohibited Iiy any federal,
state, county, or local law. Likewise, City assumes the risk of all damages and injury
associated with the use of Lessee provided bandwidth and agrees not to use such
bandwidth in a manner prohibited by any federal, state, county, or local law.
9.3 City warrants that all reasonable measures within its resources shall be taken to ensure the
performance, availability and integrity of the fiber provisioning services or products
covered in this agreement. City assumes responsibility for the fiber provisioning services
or products it provides between two designated sites and, where applicable, the sites
themselves which are City of Corpus Christi demarcations and are required to execute
this Agreement, as well as for the actions of City .
9.4 The Lessee agrees to maintain their networks such that they do not compromise the
performance or integrity of the City of Corpus Christi Fiber Network infrastructure, nor
violate security or other applicable policies. The Lessee also agrees to have all fiber
service for fiber connected to the Fiber Network performed by the City authorized
personnel, engineers, technicians, certified staff or third party contractors or vendors
approved by the City. If service is performed by others, the Lessee agrees that the City or
the City of Corpus Christi shall not be held liable for any problems that result, whether
directly or indirectly. If service is performed by others, the Lessee agrees that any
problems that result, whether directly or indirectly, which affect the integrity or otherwise
compromise the security and usability of the City of Corpus Christi Fiber Network will be
the Lessee's responsibility subject to the terms of this Section. City shall provide written
notice to Lessee detailing any problem caused by the performance of such ,service by
others. If Lessee fails to perform any repair of the problem which was caused by Lessee
(excepting any .such failure caused by the occurrence of a Force Majeure Event) within
ten (10) business days after receiving written notice from City of the existence of such
problem, then City will have the right (but not the obligation), upon written notification to
Lessee, to perform Lessee's obligations at Lessee's cost by using a Lessee approved
contractor. City shall provide Lessee with the name of the proposed contractor and any
additional information as reasonably requested by Lessee concerning such proposed
contractor. Lessee shall not unreasonably withhold approval of such proposed contractor
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and Lessee's failure to respond within two (2) business days after receipt of such
information shall constitute Lessee's approval. Repair costs incurred for will be charged
back to the Lessee on a per incident basis. The Lessee assumes responsibility for any
misuse of the network by users, will remedy such situations, and will be responsible for
any expenses related to misuse by network users. Lessee and City agree to cooperate and
coordinate with each other concerning the rights and obligations as set forth in this
Section.
9.5 Miscellaneous City Responsibilities. The City, will assume the following
responsibilities:
9.5.1 Comply with service level standards as described in this Agreement and
associated exhibits.
9.5.2 Provide a map with the names of the buildings and sites that are specified per this
__ ___--
__ _ _ - __
Agreement showing fiber links, fiber lengths, and fiber characteristics.
9.5.3 Engineer, connect, and maintain a fiber path between the fiber patch panel access
(FPPA) points in required and requested buildings (sites that are City of Corpus
___
Christi owns or operates). Provide all appropriate fiber patch cables between the
end FPPA points as requested on the applicable Service Order.
9.5.4 Upon request, on a Service Order, provide fiber patch cables at one or both ends.
Also, upon request, provide transceiver electronics.
9.5.5 Test the connection to ensure it meets the Lessee specified parameters.
9.5.6 On an ongoing basis, inform the Lessee Project Manager or designated point of
contact when there are problems with the fiber plant that will affect service.
9.5.7 Engineer, purchase, and install or arrange for all construction and associated costs
to achieve a secure site for the (FPPA).
9.5.8 Provide detailed plans for a fiber provisioning service plan to the Lessee.
9.5.9 Provide contact information for problem resolution on agreed upon links and
services to the Lessee.
9.5.10 Provide a venue for informing the Lessee of issues arising from use and/or access
of the fiber provisioning service or products provided.
9.5.11 Provide an escalation contact list with the names and contact numbers of
individuals responsible for engineering, maintenance, and restoration of the Fiber
Network.
9.6 Miscellaneous Lessee Responsibilities. The Lessee will assume the following
responsibilities:..
9.6.1 Submit a Service Order to the City with an authorized signature.
9.6.2 Provide the name of the person who will be the contact for the installation and/or
name of the Project Manager who will be the contact for applicable ongoing
maintenance and services with regard to Lessee side installations. City is agreeing
to provide the initial fiber provisioning described in this agreement and may not
reject the initial Service Order provided by Lessee to provide the contact and/or
Project, Manager information. Such Service Orders may also be submitted by
Lessee to request additional fiber provisioning in the future.
9.6.3 Specify the two sites the fiber provisioning service is to extend between in
connection with additional fiber provisioning requests.
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9.6.4 Specify the performance characteristics of the fiber provisioning service required
in connection with additional fiber provisioning requests.
9.6.5 If requesting City to attach devices at either end, insure the devices are installed
before City is to connect the links. Clearly identify the devices to be connected.
9.6.6 If requesting City to provide electronics, such as transceivers on either end of the
link, indicate on the Service Order what type of ports are to be attached, e.g. AUI,
l OBase-T.
9.6.7 If requesting City to provide end fiber patch cable(s), indicate on the Service
Order the type of connectors that should be provided on the cables, e.g. ST, SC,
FDDI.
9.6.8 For any Lessee personnel, where access to a City of Corpus Christi site is
requested, as necessary, handle violations of system security and take appropriate
security measures, including user education, City Poficy review and compliance
forms, background checks, and other measures as required by any federal, state,
county, or local law. All Lessee personnel who desire access to a City of Corpus
Christi site must first comply with- background- checks and- other security measures
as required by any Federal, State, County, or Local law or regulation. Pre-
authorization from the City Director of Municipal Information Systems is
required every time for access to a City site.
9.6.9 Notify City of any change in Project Manager or management one week before the
change occurs, and include the name of the temporary or permanent replacement.
Ariy new person appointed must redo provisions in item 9.6.8.
9.6.10 Notify City of any change in use of the link that will affect or interrupt in any way
the network services of the City of Corpus Christi .
9.6.11 If the Lessee requires access to fibers or technologies which provision for fiber
connectivity as in Cisco equipment or Enclosure assemblies, such personnel,
when granted authorized access, are certified for fiber and Cisco (minimum of
CCNA and FOT, where applicable).
9.6.12 Supply City with business hour and non-business hour contacts.
9.7 Lessee may at any time during .the term of this agreement request additional fiber
provisioning or other services and City may request additional bandwidth. Each party
shall make commercially reasonable efforts to accommodate such requests subject to
mutual agreement as to the consideration (either monetary or in kind) for such additional
Fiber Optic Strands, bandwidth or other services and other terms and conditions
pertaining thereto. Upon mutual agreement for any such additional fibers, bandwidth or
additional services, the parties shall enter into an amendment to this Agreement to
memorialize such agreement.
ARTICLE 10. SERVICE PLAN AND TERM COMMITMENT
10.1 Early termination of this Agreement is available by mutual written agreement between
duly authorized representatives from the Lessee and the City, those of the City being the
City Manager. Services would continue uninterrupted until an agreed upon termination
date is established. Once this contract is executed, any required new construction of the
Fiber Optic Strands will commence as set out in Exhibit A or Exhibit B or otherwise
agreed by the parties. Depending on several factors, the installation phase may take up to
60 days to complete. Data services and/or expected delivery of services from the Lessee
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will start once the circuit has been installed or at an agreed upon time between the City
and the Lessee. The term of data services from the Lessee will start for each individual
data service provision, the total of such provisions not to exceed 120Mb
10.2 Transfer of any service, either of fiber provision by the City or data services by the Lessee
to another entity except in accordance with the terms and conditions of herein constitutes
breach of this Agreement and will subsequently be viewed as a request for termination.
ARTICLE 11. SERVICE LEVEL AGREEMENT
11.1 In the event Lessee experiences a service outage on a Fiber Optic Strand and Lessee
notifies the City immediately of such event and City determines that such outage was
caused by City's failure to provide said services for reasons within reasonable control and
not as a result of any actions or inaction's of the Lessee or any third parties (including
failure of third party products), and such inability is not a result of scheduled or
unscheduled maintenance of the City~s products or services performed in accordance-with
Article 7 above, City will, upon the Lessee's request, make commercially reasonable
efforts and shall cooperate fully with Lessee to provide access to the affected portion of
-- --the Fiber l~etwork. _ _ _ __
11.2. Except in the case of emergencies and regularly scheduled maintenance, availability will
only be changed by negotiation between the Lessee and the City. In the rare circumstance
that the City must alter system availability, City will notify the Lessee five (5) working
days in advance of planned intrusive activities on the Fiber Network that may impair or
eliminate signal continuity. Intrusive cable activities are those, which will require the
City to directly handle a fiber, ribbon or buffer tube. A maintenance window for planned
events occurs on every Wednesday from 8:00 PM to 12:00 AM, however; such planned
events fall under the guidelines and principles of the MIS Change Review boazd and
require a 2 week notice and communication plan. Change Management review board
meetings are held every Thursday. Approved changes aze not required to fall into a
maintenance window and aze subject to being scheduled during the "off-peak" hours,
typically 12:00 AM to 6:00 AM local time or an agreed upon time set forth by mutual
agreement of affected parties to help eliminate disruption of services. Changes brought
forward to the MIS Change Review board shall include Lessee for notification,
communication, and contact, as standazd practice, whenever such request includes
changes to the Fiber .Network containing Lessee's Fiber Optic Strands as further
described in Appendix A and Exhibits A and B.
11.3 In the event of a discovery of a failure, the City may invoke an emergency repair without
prior notification. If the discovered problem is the responsibility of the City, there will be
no chazge for repair. If the discovered problem was caused by the Lessee, there will be an
hourly chazge to Lessee as specified in Appendix A. Discovered failures and
emergencies (e.g., vandalism and fire) will be handled to the best of the City's ability.
City will continue to work on the problem until it is resolved.
11.4 The City of Corpus Christi maintains a twenty four (24) hour help desk ("Network
Operations Center") to service requests made under this Agreement. The Lessee has the
right to use of the City of Corpus Christi NOC for any service request that falls under the
scope of this Agreement. To help determine the existence and scope of a possible
problem or request, the Lessee designee or Project Manager may call the NOC at 361-
826-3766, and/or. send email to Servicedesk@cctexas.com. Similazly, the City will
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contact the Lessee by phone or email to address any problem with the Lessee's fiber
provisioning service. When performance measures, where applicable, do not meet the
specified standards, the Lessee and the City will jointly work to:
11.4.1 Identify the cause of the problem.
11.4.2 Resolve the problem as quickly as possible.
11.4.3 If resolution is not achieved within 8 hours, the Lessee and the City may escalate
the problem to the appropriate level or designated Customer Relationship
Manager (CRM).
11.4.4 If a resolution is not achieved within 16 hours, the signer of the Service Order and
the Director of CITY and MIS will be notified.
11.4.5 In any failure that breaches 16 hours, alternative fiber routes or comparative
services may be employed to restore services temporarily.
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11.4.6 The Lessee reserves the right to request alternative connectivity options at any
time during a connectivity failure. Such requests are subject to connectivity
option availability, resource limitations, and are automatically invoked after any
_ __
_ _ ~4hour outage..... _
11.5 The City will perform routine maintenance (i.e. maintenance not made necessary by
natural disasters, impairment of the Fiber Network or other emergency situations) on the
Fiber Network. Elements of routine maintenance include inspections of the Fiber
Network, maintenance on the general construction of the Fiber Network, changes to the
manholes or hand-holes appurtenant to the Fiber Network and general upkeep of the Fiber
Network. Inspections of the Fiber Network include inspection of the manholes/hand-
holes, pole footings, loose or damaged hardware, and checking for code violations and
change-outs. In addition, City inspects the Fiber Network path at least quarterly by
walking or driving the route to ensure that potentially harmful activities do not cross or
parallel the Fiber Network.
11.6 The City of Corpus Christi may, and City shall to the extent the City does not, maintain
sign posts along the Fiber Network path with clear identification and contact information.
These markers shall clearly identify the route and are typically placed near splice
locations, points where the route changes direction, and typically within 1,000 feet of the
previous marker or where applicable. The City of Corpus Christi and City are also
limited in the types of signage that the governing jurisdiction permits or requires.
11.7 The City of Corpus Christi subscribes and City shall subscribe to local utility "One Call"
services for underground systems. The City of Corpus Christi and City maintains contact
with local utility companies and economic development planners to obtain accurate,
current information about street widening and pole change-out projects. City will
respond to local, state, or federal authorities for compliance or cooperation with utility
locate services. Upon notification, City will mark the Fiber Network for utility
development, general construction, and landscaping in the area and will coordinate, and
execute routine and emergency locates (regardless of how they are received-by
telephone, facsimile, computer, actual observation, etc.).
11.8 Upon notification by Lessee, detection by the City or a local emergency authority that
any portion of the Fiber provision to the Lessee is damaged, impaired, or not functioning,
the City will make commercially reasonable efforts to respond to requests for emergency
restoration within thirty (30) minutes, after which escalation and failure resolution as
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detailed in Article 11 begins immediately. Response times may be adversely affected by
conditions outside of the control of City, including, but not limited to Force Majeure
events as described below. The City will ensure that specific preparations are made to
maintain the readiness and accessibility of the personnel, materials, and equipment
required for response to emergency restoration conditions. City will coordinate all
aspects of both temporary and permanent restoration activities. From time to time, City
will provide to Lessee current emergency personnel escalation lists with contact
information. When a temporary cable is used for repair, City will make commercially
reasonable efforts to restore all "assigned" fibers as a priority.
11.9 The Lessee typically has access to the FPPA(s) in their building(s) and should keep doors
to it secured as required by the City. FPPA boxes are regularly locked. Only certified
staff may access the FPPA and Lessee access onto site premises and FPPA boxes may
require escorted services from authorized City of Corpus Christi staff. The City will take
appropriate steps to provide physically secure access to the FPPA in their central
locations. This does not apply to Lessee or their designated customer sites nor will City
or -City of Corpus Christi staff have access to -such sites. Requests from the Lessee- or
City or City of Corpus Christi staff to enter or work in such sites constitutes a request for
work and will incur hourly charges as specified in Appendix A.
11.10 Data services provided by the Lessee to the City will meet applicable Service Level
Agreements as specified in RFP No. BI-0175-08, based on Proposal No. CG-27200B
dated August lst, 2008 and passed through City board approval, Tel West Master Services
Agreement unless expressly otherwise agreed upon by the parties in this SLA and/or
agreed to between the Lessee and the City with applicable signed documentation.
ARTICLE 12. TRANSMISSION SPEED WARRANTY
Fiber-Optic Circuit Fixed Transmission Speed is guaranteed 24/7 and specified in bits per second
(bps). The Lessee understands Ethernet and that underlying protocols such asTCP/IP add
overhead to the guaranteed Transmission Speed and will result in a throughput less than the
Circuit Speed. The Lessee understands burstable speeds are not guaranteed and are limited by
the current network traffic conditions.
ARTICLE 13. EQUIPMENT AND CABLING
13.1 The Fiber-Optic Edge Router and Switch (or Switching Fabric) and Fiber-Optic Cabling
is owned by the City of Corpus Christi and warranted for the duration of service and will
be repaired or replaced at no charge to the Lessee. Any equipment with exception to that
which the Lessee has permission to implement for their own identified needs, and; which
the Lessee has informed the City of, and; which is properly tagged, secured, approved,
.and installed, is the property of the City of Corpus Christi.
13.2 At the termination of service, the City will remove any Optical devices or Switching
Fabric owed by Lessee as required, and may elect to leave in place any facilities or
equipment owned or controlled by the City, including installed fiber-optic cables. The
decision to remove or leave in place the Fiber Optic Strands will be made solely by the
City of Corpus Christi.
13.3 Service into a requested building for an additional connecting point will not be installed if
adequate conduit, raceway or riser space is not available and/or such service cannot be
installed due to security, policy, or connectivity is not available. The Lessee may elect to
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have conduit or access installed at his own expense. Formal easement documentation
may be required in some cases.
ARTICLE 14.OTHER ONE-TIME FEES (WHERE APPLICABLE)
An installation fee for equipment and site readiness for the fibers, circuits and services initially
agreed to be provided by the parties to each other under this Agreement will be waived from both
Lessee and City regardless of number of circuits ordered, per site. A fee for other services may
be negotiated between the Lessee and the City, however; any such fee must be agreed to prior to
a signed order and start date for such order. Said fee may be identified as services in kind.
ARTICLE 15. DISPUTE RESOLUTION; CHOICE OF LAW; VENUE
The parties shall attempt to resolve any disputes between them without resort to litigation in
court. The Lessee's remedies are limited as set forth herein. This agreement shall be construed
in accordance with and governed by the internal laws of the State of Texas without given effect
to choice of law. Any legal action or other legal proceeding relating to this agreement or the
enforcement of any provision of this agreement shall be brought or otherwise commenced in a
state or federal court located in the County of Nueces, Texas.
__
__ _.
.ARTICLE lb. TAXATION_ __
If the City of Corpus Christi's provision of the services to the Lessee results in a property tax,
sales tax, use tax, or similar charge to the Lessee or City of Corpus Christi, Lessee will pay the
amount of such tax. Lessee shall be responsible for all such taxes and shall pay to or reimburse
City for any such taxes paid by City Such taxes, if any, shall be paid by Lessee thirty (30) days
after date of issuance of invoice by City as applicable.. The City of Corpus Christi may be tax
exempt based on applicable law and regulation.
ARTICLE 17. FORCE MAJEURE
Neither party shall be in defdult for non-performance under this Agreement to the extent such
non-performance is the result of any accidents, acts of God, fire, flood, adverse weather
conditions, strikes, work stoppage, equipment, material, or facilities shortages, governmental acts
or directives, war, riot or civil commotion, or any other force not resulting from the non-
performing Party's failure to timely place orders therefore; lack of transportation not resulting
from the non-performing Party's failure to timely place orders therefore; change in governmental
codes, ordinances, laws, rules, or regulations; condemnation or exercise of rights of eminent
domain; war or civil disorder; acts of terrorism or any other cause beyond the reasonable control
of such party (individually or collectively, "Force Majeure Events"). A party seeking to invoke
force majeure to avoid default under this SLA shall provide prompt written notice of the
existence of a Force Majeure Event to the other party and shall use all commercially reasonable
efforts to mitigate and avoid continuation of the Force Majeure Event so as to recommence
timely performance as soon as practicable. If a Force Majeure Event occurs, the time for
performance or delay will be extended for the duration of the condition and a reasonable period
of time thereafter according to the nature of the event.
ARTICLE 18. ASSIGNMENT
Neither party shall assign this agreement or transfer its rights or obligations under this agreement
to any third party without the prior written consent of the other Parry, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, either Parry may assign or transfer this
Agreement to legal successors of such party provided that written notification is provided to the
other Party within ten (10) days of the assignment For the purposes of this Agreement, the term
"legal successors" shall include the affiliates, subsidiaries, parent companies, or purchasers of all
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or substantially all of a parry's assets. Any assignee for which such consent may be granted or
which is a legal successor shall be subject to all terms and conditions of this Agreement. .
ARTICLE 19. TERMINATION; DEFAULT
19.1 This Agreement shall automatically terminate upon the expiration of the Term or upon
termination of this Agreement or upon event of uncured default pursuant to the terms
hereof. Upon the expiration/termination of this Agreement, all rights of Lessee to use the
Fibers Optic Strands and Fiber Network and all liability for the Lessee to provide data
services as detailed in Appendix A to the City shall cease. City shall not owe Lessee any
additional duties or consideration with respect to such Fiber Optics Strands or use of
Fiber Network, and Lessee shall not owe City any additional duties or consideration with
respect to such data services as detailed in Appendix A. Promptly thereupon, Lessee
shall remove all of Lessee's equipment and other property from such Fiber Network at its
sole cost.
19.2 A party shall not be in default under this Agreement unless and until the non-defaulting
party provides it written notice of such default and the defaulting party fails to cure the
same within thirty (30) calendar- days after receipt of such notice (or, with respect to
monetary defaults, within ten (10) business days after receipt of such notice); provided,
however, that where anon-monetary default cannot reasonably be cured within such
thirty (30) day period, if the defaulting party proceeds promptly to cure the default with
due diligence, the time for curing such default shall be extended upon mutual agreement
for such period of time as may be reasonably necessary to complete such curing. Any
event of default may be waived at the non-defaulting party's option. Upon the failure of a
party to timely cure any such default after notice thereof from the other party and
expiration of the above cure periods, then the non-defaulting party may pursue any legal
remedies it may have under applicable law or principles of equity relating to such default.
Either party may seek equitable remedies prior to expiration of the above cure period to
prevent irreparable harm.
ARTICLE 20. INSURANCE
20.1- Lessee shall carry commercial general liability insurance together with coverage for
contractual liability, said policy to be issued by an insurance carrier satisfactory to City.
The amounts of such insurance shall be in the amount of not less than $1,000,000 as to
any one occurrence and $2,000,000 general aggregate.
20.2 Lessee shall also carry such insurance as will protect it from all claims under any
Workers' Compensation Law in effect that may be applicable to it.
20.3 Lessee shall submit to City certificates by each company insuring Lessee to the effect that
it has insured Lessee for all liabilities of Lessee covered by this Agreement.
20.4 The required minimum limits of coverage shown above do not limit or diminish Lessee's
liability under this Agreement.
20.5 Lessee shall submit to City a standard "Accord" insurance certificate (or comparable. form
acceptable to City) signed by an authorized representative of its insurance company,
certifying that the insurance coverage required hereunder is in effect for the purposes of
this SLA Agreement. Said insurance certificate shall certify that no material alteration,
modification or termination of such coverage shall be effective without at least thirty (30)
days' advance written notice to City and shall include a waiver of subrogation
endorsement.
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20.6 Lessee's policy for commercial general liability shall name City and its subsidiaries and
affiliates, including the City, as additional insureds.
20.7 Lessee shall permit any authorized representative of City to examine Lessee's original
insurance policies should City so reasonably request. Should Lessee at any time neglect
or refuse to provide the insurance required herein, or should such insurance be canceled
or non-renewed, City shall have the right to terminate this Agreement or secure substitute
coverage and Lessee shall reimburse City for all expenses and premiums paid in
connection therewith.
20.8 A combination of primary and excess/umbrella liability policies will be acceptable as a
means to meet the limits required under this Agreement.
ARTICEL 21. FUNDS APPROPRIATION
Lessee acknowledges that the City of Corpus Christi is a governmental entity, and therefore
certain obligations and responsibilities of the City pursuant to this Agreement are based upon the
availability of public funding .under its authority.. In the_eyent that public funds_aze_unavailable __
__
and not appropriated for the performance of the City's obligations under this Agreement, City
will provide written notification to the Lessee regarding unavailability and non-appropriation of
public funds. After written notice to the Lessee regarding unavailability and non-appropriation
of public funds, providing that such non-appropriation has detrimental impact to the ability of the
City to execute its obligations under this Agreement, Lessee shall at its option elect to maintain
the use of the Fiber Optic Strands within the Fiber Network that aze available. All other
obligations or restrictions that prevent Lessee from doing work or maintaining that portion of the
system aze waived. It is expressly agreed that the City of Corpus Christi shall not activate this
non-appropriation provision for its convenience or to circumvent the requirements of this SLA,
but only as an emergency fiscal measure.
ARTICLE 22. ENFORCEABILITY
If any provision of this Agreement is held to be invalid or unenforceable pursuant to judicial
decree or decision, the remainder of this Agreement shall remain valid and enforceable according
to its terms.
ARTICLE 23. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto with respect to the
subject matter of this Agreement and collectively constitute the entire agreement and supersede
all agreements previous to this Agreement with regard to the subject matter of this Agreement,
whether written or oral, between City and Lessee. This Agreement may not be amended or
otherwise altered except by written agreement between the parties hereto. In the event that the
terms of this SLA Agreement conflict with any terms contained in an attachment hereto, the
terms of this Agreement shall control.
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Agreed to by:
City of Cows Christi
`Ang scobar, City Manager
Attest by:
City Secretary
Approved as to form
By:
Lisa Aguilar, a 'm
TelWest ork
Name: ~
Tifle: ~ iir..~i _
(Qe-~'• S. X05
City Attorney
' ~D3~ AUTHORI~E~J
E;T G~fURCiI...~„~,,~
SECR~RY~
~'
~~
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF NUECES
This instrument was acknowledged before me on , 2009 by
as the for TelWest Network
Serivices, Inc. on behalf of said corporation.
Notary Public, State of Texas
Printed Name:
Seal:
Expiration Date:
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APPENDIX A
I. DESCRIPTION OF FIBER PAIRS PROVIDED BY CITY for LESSEE'S USE:
Ring 1: Two (2) fibers along the route described below and further described in
Exhibit A attached to this agreement:
Route Description
(Start) City Hall - to Lipan, to S.Alameda and Lipan, down S. Alameda to Ayers St.
Junction, down Ayers to Holly and Ayers, down Holly towards Staples and Holly,
down Staples St, under SPID continuing down Staples to Staples and Louisiana,
down Louisiana to Shoreline, down shoreline to Power St., from Power and
Shoreline to Mesquite, down Mesquite into Junction for Municipal Court - (End)
Initial Access/Connecting Points:
__
(i) Fiber patch panel in at
(ii) Fiber patch panel in at
;and
(iii) Fiber patch panel in at
Ring 2: Two (2) fibers along the routes described below and further described in
Exhibit A attached to this agreement:
Route Description [2 routes]
Route 1: (Start) City Hall - to Lipan, to S.Alameda and Lipan, down S.
Alameda to Ayers St. Junction, down Ayers to Holly and Ayers, down Holly
towards Kostoryz and Holly, down Kostoryz St, to S. Staples and Kostoryz, down S.
Staples to Staples and Louisiana, down Louisiana to Shoreline, down shoreline to
Power St., from Power and Shoreline to Mesquite, down. Mesquite into Junction for
Municipal Court -(End)
Route 2: (Start) Holly/Kostoryz Junction -down Holly towards Staples and
Holly, down Staples St, under SPID continuing down Staples to Staples and
Kostoryz, down Kostoryz back to Holly/Kostoryz Junction -(End)
Initial Access/Connecting Points:
(i) Fiber patch panel in at
(ii) Fiber patch panel in at
,and
(iii) Fiber patch panel in at
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Lessee shall be entitled to connect to the Lessee Fiber Optic Strands at the initial connecting
points described in Appendix A. Lessee shall be entitled to request the establishment of
additional connecting points in addition to those described in Appendix A, at (i) any manhole or
handhole or other points where the cable containing the Lessee Fibers is spliced along the Fiber
Network, or (ii) at other appropriate points as requested by Lessee. City may decline to make a
requested connection if City determines, in its reasonable discretion, that there is a significant
likelihood that (i) Lessee's use of a proposed connection would cause a material and adverse
effect on the Fiber Network or the use thereof; (ii) use of a particulaz location will cause a
significant technical impediment; or (iii) the making or existence of the connection presents an
unreasonable risk of creating an interruption of transmission. All work required to establish any
connection requested by Lessee shall be performed by Lessee pursuant to Appendix E.
II DESCRIPTION OF BANDWIDTH TO BE PROVIDED BY LESSEE TO CITY:
T~0 Mb bandwidth. Service options include but are not Iimited to the following:
1. SHDSL in approved bandwidth increments.
2. Internet DIA in approved bandwidth increments.
3. Tl PTP data services in any grouping.
4. DSO connections used for data transport services
5. ISDN data services.
III. DESCRIPTION OF HOURLY RATES:
In cases of requested work from Lessee to the City which aze to be chazged pursuant to the terms
of the agreement, such costs will be based on hourly chazges as defined below:
Labor, non-technical Labor and/or Consulting, Technical
Hourly rate = $75.00/hour Hourly rate = $120.00/hour
The hourly rate may increase yeazly to reflect inflation. Any increase in rates will have prior
notice and confirmation to and from the. Lessee within 30 days from start of billing.
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.-- - --,-
APPENDIX B
NETWORK PLANS AND DIAGRAMS
Fiber map as issued to the Lessee by CITY for the specified route identification.
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DRAFT
APPENDIX C
FIBER PERFORMANCE CHARACTERISTICS
Single Mode Fiber Optic Cable
Primarily used as aninter-building backbone cable. At distances up to 3 km., single mode fiber
will deliver data rates up to 10 Gbps. with a bandwidth of 20Ghz. Its operating wavelengths are
1310 nm and 1550 nm. Single mode fiber's primary uses are long distance applications, full
motion video, and any applications requiring extremely high bandwidth.
Multimode Fiber Optic Cable 62.5/135um)
As aninter-building backbone cable at distances of under 2 km, multimode fiber optic cable will
deliver data rates up to 200 Mbps. Its operating wavelengths are 850 nm and 1300 nm. In
addition, multimode fiber optic cable can be used in intra-building distribution. For distances of
TOU m or less -the bandwidth- is-virtually unlimited:- At an operatmg wavelen~li of 85~ rim,
62.5/125 um multimode fiber has a bandwidth of 100-200 MHz/km., with an attenuation of 3.0
to 5.0. At an operating wavelength of 1300 nm, 62.5/125 um multimode fiber has a bandwidth
of 200-800 MHz1km., with an attenuation of 0.9 to 3.0. Multimode fiber is used for voice, data,
security and video systems.
CITY will always follow the manufacturer's electronic equipment specifications for fiber core
size when designing a fiber optic system. However, CITY will contact a manufacturer's
representative if the specifications differ from 62.5/125 um. In most cases 62.5/125 um will be
acceptable.
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APPENDIX D
SITE ACCESS
NOTE: The following applies to agreements between the Lessee identified in signed and
authorized SLAs and and/or the City of Corpus Christi.
Lessee will have access to all sites as defined in the Fiber Optics Licensing Agreement between
the Lessee and the City of Corpus Christi except where Federal, State, Nueces County, or City of
Corpus Christi regulations apply.
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APPENDIX E
ADDITIONAL SERVICES AND OPERATIONS
The following aze services CITY may perform, but which aze not covered by the Maintenance
Fee waived pursuant to the terms of the agreement and will be subject to additional fees. Said
fees may be negotiated for services as payments in kind.
Tie-In Services.
CITY's tie-in services include planning, support and project management and cable
splicing services. CITY's approvals for all tie-in services aze required for all customers that want
to connect fiber cables from laterals into the CITY backbone. Tie in Services will not be
performed until Lessee has accepted the Fiber Network. CITY will provide basic planning
support for lateral connection operations. The routine tie-in service does not cover conditions
relating to emergency outages of service or routine Locate and maintenance,-unless CITY owns
the lateral connection. CITY or Lessee will engineer and design the most efficient location for
demarcation between the Fiber Network and Lessee's network. CITY will coordinate the
placement of a demazcation manhole/hand-hole or a building demazcation point for fiber lateral
connections. Fee and negotiation for in kind payment will be handled on an ICB basis, both
companies will work together to help minimize out of pocket expenses.
S lp icing.
Cable splicing services at the backbone include accessing the cable, preparing the splice
enclosure, preparing the fibers for splicing, fusion splicing the fibers, installing and dressing the
fibers and splices in the splice trays. CITY is responsible for all setup and closing activities of
the work area including securing access to the manhole or hand-hole, closure of equipment in the
hand-hole or manhole, and cleanup and removal of any debris. Each fiber spliced is tested bi-
directionally at 1550nm, with an OTDR capable of long range and high resolution testing. The
maximum allowable individual splice loss is .35 dB bi-directionally averaged, and will be re-
spliced up to 2 times, if the splice still exceeds .35dB, but the average bi-directional splice loss of
all splices across the entire tested span is .2 dB or less, then the individual splice loss of .35 dB or
greater will be acceptable. CITY uses an OTDR capable of reading to the .OS dB loss level,
produces fiber test documentation, and stores the test data. The dB loss per kilometer of fiber
will vary with the type and chazacteristics of the fiber and the average and number of splices.
CITY provides splicing services, including planning support, project management, and
cable splicing services. CITY requires a minimum of ten (10) days advance notice to perform
any splicing activity. When multiple locations and reconfigurations aze involved, CITY will
perform the work in a diligent manner and timeframe. Splicing services are required for all
lateral connects into the CITY backbone.
CITY will answer all questions and provide basic planning support for lateral connection
operations. The routine splicing service does not cover conditions relating to emergency outages
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of service or routine locate and maintenance, unless CITY owns the lateral connection. CITY
will engineer and design the most efficient location for demazcation between the Fiber Network
and Lessee's network. CITY will coordinate the placement of a demazcation manhole/hand-hole
or a building demazcation point for fiber lateral connections. All splicing, terminating, and
connection onto the backbone will be performed by CITY. Cable splicing services at the°
backbone include accessing the cable, prepazing the splice enclosure, preparing the fibers for
splicing, fusion splicing the fibers, installing and dressing the fibers and splices in the splice
trays. CITY is responsible for all set up and closing activities of the work area including
securing access to the manhole or hand-hole, closure of the equipment in the manhole or hand-
hole, and clean up and removal of any debris.
Notwithstanding the foregoing, cable splicing or tie-ins performed in connection with
CITY's delivery of the fiber pairs and termination thereof at the access/connecting points
described in Appendix A shall not be subject to chazges pursuant to this Appendix.
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Exhibit A
Lessee Fiber route re uest.
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Exhibit B
Lessee Fiber route request.
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24