ADOPT ORDINANCE APPROVING DEVELOPMENT AGREEMENT WITH SIFI NETWORKS DOWNET,
LLC FOR IMPLEMENTATION OF A CITYWIDE FIBER OPTIC NETWORK SYSTEM FEBRUARY 8, 2022
SiFi is a privately -owned business which is funding and implementing competitive 100 percent fiber optic network systems in several cities across the country. SiFi is proposing Downey to n
and construction of a Citywide fiber optic network infrastructure in the public right-of-way.
The development agreement is the culmination of six months of negotiations between the City and SiFi and outlines the process for design, review, approval, permitting, construction and maintenance of a Citywide fiber optic network for an initial term of 30 years. The development agreement provides for a one-time automatic renewal of another 30-year term for a total of 60 years. The fiber optic network will consist of approximately 450 miles of fiber optic cable at a total cost of more than 100 million with the expectation of providing fiber optic -ready access to every resident and business in the City. SiFi will lease the fiber lines to multiple ISIPs to whom residents and businesses may subscribe. SiFi will own and maintain the fiber optic infrastructure at no cost to the City. Through expedited design, approval and installation processes, the implementation timeline is estimated to be four years.
[41611111111111: Ik Fk(;&l NN a I IRM I a R Moil R1 I a I IN I P 11T4;M I a L P111 M I M IMMU 114 11 R FAM V911V I - 27TAWrer= 114016 IN: 10111110111111M., 0
"01
Piywgie 'IDer opfic networK SY51L-M5 51 expanal -,Ing Iluer Irm][11,11LAIle anu purri, a similar service. This will allow for competitive pricing as residents and businesses will have the option to receive high-speed interest service from multiple ISPs. From an economic development standpoint, the concept of a privately -owned and maintained Citywide fiber optic network will be a great opportunity to strengthen Downey's competitive advantage in retaining and attracting businesses, jobs and private investment in the community.
More importantly, the fiber optic infrastructure will be able to accommodate future expansion and innovative opportunities such as free WiFi access at City buildings and public spaces; 5G; autonomous vehicles; and Smart City applications including automated traffic control system, streetlights, electric vehicle charging stations, building and energy management systems, sanitation, water and wastewater, parking, etc. This will make the City of Downey a Smart City.
FISCAL IMPACT
• uzil -
112 royi Me a rem 111 NXIIII fi IN W10116
IMM=M 101191*1,1_01169 OWN - -
anu puterimmm"ns in FL'TenUdb TIUI
and sales taxes that may arise from stimulus of economic activity generated by attraction to a Citywide fiber optic network.
EV11111MI11111T,14641111i
Attachment A - Ordinance
0 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY
APPROVING A DEVELOPMENT AGREEMENT WITH SIM NETWORKS
DOWNEY, LLC FOR IMPLEMENTATION OF A CITYWIDE FIBER OPTIC
NETWORK SYSTEM
rasialaill 11V "M
%Z3104-norugg Mk - 11 F 0 0
WHEREAS, SiFi Networks Downey, LLC owns the rights to the FOCUS proprietary WHEREAS, SiFi Networks Downey, LLC and the City wish to enter into an agreement for a 30-year term with one automatic renewal term of 30 years to allow for the use of the City's infrastructure and right-of-way for the implementation of a Citywide fiber optic network system; and
WHEREAS, the City is willing to grant a license to SiFi Networks Downey, LLC to system and City -owned land including up to two specific locations for installation of SiFi Networks Downey, LLC's shelters and facilities upon the terms, conditions and other considerations set forth in the Development Agreement, and F.WUNIM I -
i :1 :4 g-gim narn
UMTff9nUT%'Mcessar,y for Me a
Downey, LLC attached hereto as Exhibit " 1 given that the term of the agreement will be for a period exceeding 10 years.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES ORDAIN AS FOLLOWS:
SECTION 1. Based on the recitals which are incorporated by reference herein, the City Council hereby approves a Development Agreement with SiFi Networks Downey, LLC which is attached hereto as Exhibit "l " and authorizes the Mayor to execute the agreement on behalf of the City in a form approved by the City Attorney.
41 ffiffi�
I-EIRIT61,9111y "s
MARIA ALICIA DUARTE, CIVIC
City Clerk
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES) ss'
CITY OF DOWNEY
I HEREBY CERTIFY that the foregoing Ordinance No. 21--Was introduced ata regular meeting of the City Council of the City of Downey held On the — 2510 day of January- and adopted at a regular meeting of the City Cooe uncil f thCity of Downey held on the 8 th day of February, by the following vote, to wit:
AYES:
Council Members:
NOES:
Council Member:
ABSENT:
Council Member:
ABSTAIN:
Council Member:
I FURTHER CERTIFY that a Summary of the foregoing Ordinance No.21 - was published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on 20_ (after introduction), and on
, 20 (after adoption, including the vote thereon). It was also posted in t1i re--g- ular p—osting—places in the City of Downey on the same dates.
MARIA ALICIA DUARTE, CIVIC
City Clerk
DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is made this 8th day of February, 2022 ("Effective Date"), by and between the City of Downey ("City") California, municipal corporation and charter city and SiFi Networks Downey LLC, a Delaware limited liability company ("SiFi") (each of City and SiFi, a "Party" and collectively, the "Parties").
WHEREAS, the City desires to implement a fiber optic network System (as defined below) for community benefit in the City and SiFi desires to install such a System; WHEREAS, SiFi owns the rights to the FOCUS (as defined below) proprietary fiber optic cable System technology;
WHEREAS, the City has agreed to grant to SiFi all necessary rights to access and use the Public Way to install, operate, and maintain the System; and NOW, THEREFORE, in consideration of the mutual obligations of the Parties, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties covenant and agree as follows:
1. Definition of Terms.
1.1 Terms. For the purpose of this Agreement, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. "Access" means facilitation of all necessary City permits, encroachments, and/or license and/or lease agreements for specified areas within the Public Way. "Boundary" means the legal boundaries of the City as of the Effective Date, and any additions or subtractions to the City legal boundaries, by annexation or other legal means. "Cabinets" means above ground enclosures placed within the Public Way for the protection of active and passive equipment for the provision of Service throughout the System and as her described in Exhibit A.
"Chambers" means underground enclosures placed within the Public Way facilitating access to the active and passive equipment for the provision of Service throughout the System. "Commencement Date" means the date that Substantial Completion, as that to is defined herein, of the System has been achieved.
"Construction" means breaking ground for the installation of the System.
"Construction Contractor" or "Contractor" means the construction company(ies) performing the physical work.
"Drop" means the fiber optic cable run from the edge of the Public Way (as defined below) to the Premises Wall.
"Facility" means the secure spaces that the City agrees to make available to SiFi during the Term for the installation of Shelters and Cabinets. "FOCUS" means SiFi's trademarked FOCUSTM system, know-how and other proprietary rights, comprising, among other things a combination of to fiber, aerial, and other conventional techniques to enable multi gigabit technologies. "FON" means SiFi's fiber optic network built by utilizing a combination of blown fiber, aerial, and/or other conventional techniques, which may also include FOCUSTm design, as well as electronics to enable multi gigabit technologies.
"Hazardous Materials" means (i) any hazardous or toxic wastes, substances, or materials, and any other pollutants or contaminants, which are regulated by any applicable local, state or federal laws.
"Home" means a residential single-family dwelling, or a residential single dwelling unit located within a Multiple Dwelling Unit, located within the Boundary. "Multiple Dwelling Unit" means an apartment building or other building containing more than four dwelling units located within the Boundary.
I'Microtrenching" means the process of cutting a trench with a dry cut machine and reinstated with cementitious slurry fill as further described in Section 4.1.1. "Pass" or "Passes" means the duct or Chamber as parts of the System has reached to the curbside of a residential Primary Premise, or the engineered point at or near a commercial Premises from which a Drop can be connected.
"Person" means any natural person or any association, firm, partnership, joint venture, corporation, limited liability company, or other legally recognized entity, whether for profit or not for profit, but shall not mean the City or SiFi.
"Premises" means a Home, Multiple Dwelling Unit, office or other building located within the Boundary.
"Premises Wall" means the exterior of an outside wall of a Premises to which the fiber optic cable can be terminated.
"Primary Premises" means the Premises within the Boundary as of the Effective Date but excluding any Premises which SiFi cannot connect (i) because of a lack of a right to access and use the Public Way due to the City not possessing the right, title, interest or authority to ZMEM
"Subscriber" means any Person (which for purposes of this definition shall include flyi City) that has entered into an agreement to receive or otherwise lawfully receives Service. "Substantial Completion" means the date on which, the System has been installed such that it Passes the addresses of each of the Primary Premises and the System is capable of providing Service to each such Primary Premises (but for the lack of a Drop) or four (4) years post Construction being commenced, whichever event occurs first; provided, however In the event that Substantial Completion is deemed to have occurred due to the expiration of • ) years post Construction being commenced, SiFi shall use commercially reasonable efforts to
complete, subject to the conditions in the proviso above, such construction as is necessary to provide service to all Primary Premises within a commercially reasonable time. "System" means all parts of the FON system under and above ground in the City that is designed to support the delivery of Service to Subscribers, including the fiber optic cable and its component parts and appurtenances, and the other cables, wires, components, facilities, Cabinets, ducts, conduits, connectors, Shelters, Chambers, manholes, manhole covers, pedestals, appliances, splitters, attachments, and other property, equipment, components, materials, a•►ai. and .•i to the FON system.
2. Grant of License.
2.1 Grant of Licensefor System in Public Wa.
I gig
rOTOTI
3 SLO111 is EUMpt I1Wr LIM riIQIIILIC�
but that upon issuance of the applicable permit, the area specified therein shall be exclusive for the System, subject to the terms and conditions of this Agreement.
Further, SiFi's rights granted under this Agreement are irrevocable until the
expiration or sooner termination of this Agreement and/or the permit as provided .'terein or therein.
Abandonment of the Nntem upon Termination, of Agreemen .
Upon the expiration or termination of this Agreement, SiFi shall have the right, but not the obligation, to remove from or abandon in place all or any part of the System in the Public Way. Any part of the System abandoned by SiFi as described in this agreement shall become the property of the City. Within ninety (90) days or as soon as possible of the expiration or termination of this Agreement, SiFi must notify the City in writing of its intent not to abandon the System. Failure to provide such written notice within the time specified will be deemed an abandonment of the System.
Removal or Relocation for Safe!j Reasons. M in the reasonab discretion of the City Public Works Director, any above ground portion of the Syste is installed, operated and/or maintained in material non-compliance with t and/or written (email) notice and SiFi shall promptly, within the applicable timefr specified in Section 8. 1. 1, repair such portion of the System within the time requir by the City Public Works Director. If SiFi fails to timely repair such portion of t System as required, the City Public Works Director may, at SiFi's expense to be pa upon invoice by the City, (i) cause the removal immediately, if necessary, to prote against imminent harm to life or property, or (ii) cause such portion of the System constitutes a public nuisance to be abated consistent with the provisions of t Municipal Code. Notwithstanding the foregoing, if, in the reasonable discretion of t City Public Works Director, any above ground portion of the System becomes a safe hazard at any time during the Term, the City Public Works Director may, at SiFi expense to be paid upon invoice by the City, cause the immediate removal of su portion of the System without prior notice to SiFi, if necessary to protect again imminent harm to life or property.
2.2 Term of Agreemen . This Agreement shall become effective upon the execution and delivery of this Agreement by the Parties (the "Effective Date"). The term of this Agreement shall commence on Commencement Date and run until midnight on the date that is thirty (30) years after the Commencement Date (the "Initial Term"). Following the Initial Term, this Agreement shall, so long as SiFi remains in material compliance with this Agreement as reasonably determined by City, automatically renew for one additional term of thirty (30) years commencing on the thirtieth (30th) anniversary of the Commencement Date (a "Renewal Term)," and, collectively with the Initial Term, the "Term") unless SiFi provides written notice to the City of its intent not to renew at least one hundred eighty (180) days prior to end of the Initial Term. If SiFi elects to not renew this Agreement the system will be deemed abandoned and shall become the property of the City.
2.3 License to Occupy Cijj_Land for Shelter/Facilifies.
(i) City hereby grants to SiFi, and its licensees, successors, lessees, transferees, and assigns, an additional license to enter and occupy portions of the City's Public Way and/or City - owned land including for up to two (2) specific locations for Shelters and Facilities as further described in Section 4.2 (Location of Shelters/Facilities), subject to a separate mutual written lease agreement between the parties at market rate which locations will be mutually agreed upon in good faith between the City and SiFi (the "Shelters License Area"), for the purposes of erecting, installing, constructing, operating, repairing, replacing, reconstructing, removing, • using and retaining said Shelters and Facilities, including, without limitation, wires, cables, ducts, conduits, connectors, vaults, handholes, handhole covers, fencing, pedestals, appliances, splitters, attachments, and other property, equipment, components, materials, apparatus and appurtenances to the System and the Shelters (the "Improvements"). This License is subiect to easements. covenants. conditions, and revulations in existence as of the date • �
(vii) City, its agents, or assigns, or any utility company or City franchisee may at any time, enter upon the Shelters License Area, except for the Shelter locations, covered by this
Agreement for the purpose of installing, maintaining, relocating, altering, enlarging, repairing, or inspecting any utility, facility, or public work thereon. provided that, except in emergencies, City will be liable to and will indemnity SiFi for any damages to the System, Improvements and Facilities.
(viii) SiFi shall restore damaged or disturbed surfaces or underground utilities at or adjacent to the Shelters License Area to substantially the same as the original condition.
Restoration shall be carried out immediately after construction. Any damage not repaired to the satisfaction of the City shall be a cause to suspend any operations within the City's limits by the party causing the damage until the repairs are satisfactory to the City. (ix) The Improvements and all of the parts and components of the System which ar* installed and constructed by SiFi in the Shelters License Area shall at all times be and remain t4s property of SiFi.
(x) City shall not install or construct, or permit the installation or construction of, any structures, improvements or obstructions on, over, or under, the Shelters License Area that interfere with SiFi Network' access to, use and possession of the Shelters License Area, nor shall City otherwise impede, disturb, interfere with, or restrict, SiFi's access to, use and possession of, the Shelters License Area.
FEA [RESERyhw
2.5.1 During the Term, and so long as SiFi has made the Monthly Reimbursable Amounts as defined below the City shall provide efficient an-i diligent good faith review of all applications for permits by SiFi and/or its contractors, to the extent reasonably possible and to the extent permits arc necessary, including permits or other necessary items for construction work on the System within the Public Way. The City acknowledges and agrees that in order for SiFi to perform its obligations under this Agreement, time is of the essence in connection with permitting, licensing, and approval of the System. Accordingly, once SiFi has submitted a preliminary design for construction work on the improvements in the Public Way, including Shelters License Area, to the City, the City agrees to the extent reasonably possible to process within the timeframes below in connection with all applications for permits by SiFi and/or its contractors in connection with this Agreement:
(i) The City shall within two (2) business days of submittal by SiFi and/or its contractors of an application or other request for a pennit in connection with this Agreement provide written acknowledgment to SiFi and/or its contractor confirming receipt of such submittal; and -Nu or gulp I
connection with this Agreement acknowledge in writing that such application is properly submitted and complete, or in the event such application is not properly submitted and complete, provide SiFi and/or its contractors with a detailed written explanation of any deficiencies. Upon curing any such deficiencies, the City shall undertake an expedited review of the application per the timelines specified herein or other request for permit by SiFi and/or its contractors in order to comply with this Section
2.4.1. (iii) The City shall within fifteen (15) business days of a reasonably sufficient submittal by SiFi and/or its contractors of an application or other request for a permit in connection with this Agreement provide written notification of initial review and provide in writing to SiFi and/or its contractors a detailed explanation of any additional information and/or correction(s) needed for the City to complete its review process and the timelines specified in this Section
2.5.1 shall reset upon submittal of such required information. In the event rio additional information is needed, the City shall within such fifteen (1* day period so notify SiFi and/or its contractors in writing. (iv) The City shall within ten (10) business days of a properly submitted and complete application by SiFi and/or its contractors of an application or other request for a permit in connection with this Agreement provide final approval and issue any necessary approval or permits to SiFi and/or its contractors.
2.5.2 Permit applications shall be submitted by SiFi in substantially the standard form published on the City's official website. The engineering details provided in Exhibit A are the typical details that will be primarily used to construct the System.
2.5.3 Nothing herein shall be construed as a promise, warranty, or guarantee of approval of any permit, license, or other land use approval which may be required. No permit, license, or other land use approval of any other approval requested by or required if SiFi shall be unreasonably withheld, conditioned or delayed. Furthermore, SiFi shall have no liability for and shall not be deemed to be in breach of any of its obligations hereunder, if the necessary permits, licenses or approvals are not issued or are issued but not timely by the City, unless the failure to issue or delay in issuing is the fault of SiFi. SiFi is solely responsible for any ptermit or approval from any other public agency that may be required for the work.
This Section 2.5.3 does not apply to any discretionary land use approval from the City which may be required as a result of the final design for SiFi's work in the Public Way, which cannot be ascertained as of the Effective Date due to the lack of a final design.
2.6 Invoices and Pfffflen:ts —Monthly Wittibunablo Antounts. Beginning with the first business day of the month following the first permit application submitted by SiFi, City will invoice SiFi on the first business day of each month for actual City fees incurred by the City during the previous month including administration of the Efficient Permitting Process described in Section 2.5 above, plan check fees, encroachment permit fees, inspection fees, and any other applicable fees, including staff time and consultant costs of processing and reviewing all applications by SiFi and/or its contractors (collectively, the "Monthly Reimbursable Amounts").
City represents and warrants that such Monthly Reimbursable Amounts are and will be a fair market value of all City costs incurred by the City in fulfilling its obligations under the Agreement. City will continue to invoice SiFi for the Monthly Reimbursable Amounts until Substantial Completion. Each such monthly invoice shall be payable within thirty (30) days of receipt.
2.7 Pecs, E�Mensys and other CbatMs. Except as expressly set forth herein, each Party shall bear and be responsible for all of its own costs, fees and expenses incurred in executing and performing this Agreement. For the avoidance of doubt, because of the payment of the Monthly Reimbursable Amounts, City agrees (i) that SiFi shall not be responsible and liable for any other or additional fees or payments to the City in connection with this Agreement or the permitting process in excess of the Monthly Reimbursable Amounts, including any assessment or fees that otherwise would or might be levied by the City separately for use of the Public Way, provided that SiFi shall be responsible for Federal, State and local taxes in connection with the System. The City agrees that this Agreement shall not require SiFi to comply with or otherwise be subject to any obligations or liabilities as a grantee of a franchise under the City's municipal code, ordinances or similar laws. However, any Service Providers may be subject to franchise fees, including but not limited to a City required, of which requirement SiFi shall notify each Service Provider as a separate line item to any such Service Provider's active Subscriber and subject to a separate agreement between the City and such Service Provider. The City agrees that City bonding and insurance requirements will be satisfied by bonds and insurance coverage provided as part of the encroachment permit application and supplied by the Construction Contractor (as principal) performing the construction of the System. Such bonds and insurance documentation to be supplied prior to the start of Construction. Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section
2.7 will survive expiration or termination of this Agreement. SiFi shall, at its own expense, obtain and maintain in full effect throughout the Tenn a City business license, and shall require that each of its contractors and subcontractors obtain 'a City business license if required based on the work in the City.
2.8 RO�vaOon, Modificafio% or AIWraji2ns. Excluding relocations requested by the City pursuant to this Agreement and repairs or maintenance to the System, SiFi may not relocate, materially modify, or materially alter the System components any time after issuance of the permit(s) for the System, except upon City's written approval which approval will not be
unreasonably withheld, delayed, or conditioned, except as necessary to protect the public health and safety.
3. The S stem.
y _
3.1 System Description. SiFi will install the System within the Boundary using the Public Way. The System shall use fiber optic cable emanating from the Shelter to the applicable Cabinet in the Public Way and then to the private Premises Wall for each applicable Primary Premise. The City acknowledges and agrees that SiFi has the right to install the System within the Boundary using the Public Way in order to make the delivery of Service over the System available to all Premises within the Boundary. The Parties acknowledge and agree that there is no agreed design or configuration of the actual location of the System within the Public Way at this time and that SiFi shall submit such designs specification, plan and associated details to the City for approval within 180 days of the Effective Date of the Agreement. The City will work with SiFi to approve the physical location of the fiber it cable and other equipment and components of the System in, on, over, under, upon, across, or along the Public Way and from the Public Way to the Premises Wall.
3.2 PermiU and Genera! Obligaligg �. Following SiFi's submittal of designs, plans and specifications for the System and City's reasonable review thereof, SiFi shall obtain applicable permits as provided herein including but not limited to encroachment, licenses, or other forms of plan review and approval or authorization necessary to construct, install, operate, maintain, replace, reconstruct or repair the System, or any part thereof, during the term of this Agreement and any extension. SiFi shall provide plans to the City for City approval for the issuance of permits to construct the System. The City shall issue such permits in accordance with the timelines specified in Section 2.5, with associated costs covered by the Monthly Reimbursable Amounts. Construction and installation of the System shall be performed in a safe manner compliant with all applicable laws and regulations, using materials of good quality. All permits shall provide for and allow work on residential streets between 7 AM and 5 PM, Mondays to Fridays and on arterial highways between 9 AM and 4 PM, Mondays to Fridays. All transmission and distribution structures and equipment installed by SiFi for use in the System in accordance with the terms and conditions of this Agreement shall be located so as to minimize interference with the proper use of the Public Way and the rights of property owners who own property that adjoin any such Public Way. Except for the approved construction techniques specified in Section 4. 1.1 and the specifications listed in Exhibit A, SiFi shall adhere to all then -current and applicable Municipal and Building Code requirements, and SiFi acknowledges that, during the Term, applicable laws (including the City of Downey) are likely to change and such amendments shall apply to SiFi and the System.
I I I I to VIM
4.1 SiFi will use commercially reasonable efforts to commence Construction on or before a date that is twenty-four (24) months after the Effective Date (the "Construction Commencement Deadline"); provided however, in the event of a Force Majeure Event or if all Shelter locations have not been agreed upon within twenty-four (24) months from the Effective Date, the Construction Commencement Deadline shall be extended by the time impact resulting from the (i) Force Majeure Event or (ii) delay in agreeing on all Shelter locations. In addition, SiFi will use commercially reasonable efforts to complete construction of the System on or after the Construction Commencement Deadline fthe "Construction Completion Deadline"); provided however, in the event of a Force Majeure Event or if all Shelter locations have not been agreed upon within twenty-four (24) months from the Effective Date, the Construction Completion Deadline shall be extended by the time impact resulting from (i) the Force Majeure Event or (ii) delay in agreeing on all Shelter locations. The timeline shall also be extended due to and for the length of any delay by the City in performing its obligations hereunder or issuing the permits, licenses and approvals to SiFi or its contractors.
Both Parties recognize and agree that SiFi cannot guarantee the Construction Commencement Deadline or the Construction Completion Deadline as many elements are outside of its control.
SiFi will keep the City informed of the progress of its schedule at reasonable intervals.
4.1.1 The City acknowledges and agrees that SiFi and its contractors intend to use varying construction techniques for the System Construction and deployment, which may include, any of the following:
(ii) slot cut Microtrenching as set forth in the specifications set forth in Exhibit A to this Agreement;
(iii) In addition to notification of DigAlert and potholing, the use of a ground penetration radar system as the primary method for identifying underground utilities prior to any Microtrenching; and/or (iv) aerial cables (shall only be permitted where other aerial facilities and poles exist and existing poles are used) as allowed in the permit.
To the extent consistent with the City's building codes, the City hereby approves each of the above referenced construction methods and the specifications in Exhibit A to this Agreement and agrees to work cooperatively with SiFi in reviewing all other potential construction methods.
4.1.2 SiFi shall be solely responsible for all repairs, maintenance, and adjustments, and damage to the System, not caused by City's active negligence or willful misconduct. The City shall be liable to the extent any loss or damages to the System or other property and equipment results from the sole active negligence or sole willful misconduct of acts or omissions by the City or its agents.
MIMM��=M
MEHIM
4.2.1 ",eilities. During the Tenn, the City shall provide SiFi, as needed, with access to and use of the Facilities for the installation and operation of up to two (2) SiFi's Shelters (approximately 1,000 square feet per location for each Shelter) subject to a separate lease agreement to be negotiated in good faith between the parties including payment by SiFi of fair market value for the use and occupancy of each such Shelters Lease Area on City -owned land.
4.2.2 Shelters and Cabinets Locations. SiFi agrees to provide engineering designs including intended locations of the Shelters and Cabinets required for the System to the City prior to Construction in accordance with City's permitting process. The City and SiFi agree to cooperate in the selection of suitable sites for the Shelters and Cabinets. However, City has sole and absolute discretion to reject a proposed location; provided that, the City will use reasonable efforts to offer suitable alternative locations.
4.3 S"tcm, Connections to the Premis" Wall,. SiFi will provide a terminated fiber to each Subscriber's Premises receiving a Drop in a manner to be determined by SiFi. The location and the method of the Drop will vary depending on the circumstances of the location of the Subscriber's Premises. For the avoidance of doubt, in the event SiFi cannot install fiber oGwtic cable or other necessarp ment on (i
Miyate (iro(iertg because of a lack of a 4UNht to
access the property, SiFi shall not be required to make the System available to such Premises when private easement has not been granted.
5. Ove,rsi -ght and Regulation by Ciy.
5.1 Oversight ofConstruction. The City shall have the right to oversee and inspect the Construction of the System in the Pu I c Way.
5.2 Compliance with Appligb1to Laws. SiFi and the City shall, at all times during the Term, be subject to and comply in all material respects with all applicable federal, state laws and local laws regarding the Construction of the System in the Public Way.
5.3 Treatment of Confidential NArmation. Except for local, state and federal law, including without limitation, the State's California Public Records Act ("CPRA") and open meeting laws, , subpoenas and court orders, the City agrees that, without the prior written consent of SiFi, all information regarding the System, including plans, drawings, designs, conceptual renderings, specifications, photographs, reports, manuals, and other documents ("Confidential Information") and so labeled as confidential, is proprietary and shall be kept confidential and shall not be disclosed to any Persons other than the City's authorized employees, representatives, staff and consultants (collectively, "Representatives") with a need to know such information as determined by the City. The City shall cause its Representatives to observe the confidentiality obligations described herein and shall be responsible for any breach of these obligations by any of its Representatives. The City agrees to promptly notify SiFi if the City receives a CPRA request relating to SiFi or the System so that SiFi, at its sole cost and
expense, may take any appropriate steps to protect disclosure of Confidential Information. As permitted by law, City shall promptly upon the written request of SiFi or the termination of this Agreement, return to SiFi or destroy (any such destruction shall be subject to the City's Records Retention and Destruction Policy or other applicable laws, and certified in writing by an officer of the City) all copies of the Confidential Information and all other documents prepared by the City that contain or reflect the Confidential Information. Notwithstanding anything to the contrary contained in this Agreement, the City's obligations set forth in this Section 5.3 will survive expiration or termination of this Agreement.
MRITIff-MMM.
Without limiting liability hereunder, SiFi shall procure and maintain from the date of start of Construction for the duration of the term of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the SiFi, its agents, representatives, employees, or subcontractors. �1;J11111 11111111111111111111 1� 1 11111111111 1
i': J1vlrl1 �!
A. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. Coverage shall include blanket contractual liability and broad form property damage, premises, operations, explosion, collapse, underground hazard (commonly referred to as 6XI, "C" and "U" coverages
B. Automobile Liability: Insurance Services Office Form CA 0001 covering Code I (any auto), with limits no less than $2,000,000 per accident and $4,000,000 in the aggregate for bodily injury and property damage.
C. Workers' Compensation insurance as required by the State, with Statutory Limits, and Employers' Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
D. Builder's Risk (Course of Construction) insurance utilizing an "All Risk" (Special Perils) coverage form, with limits equal to the greater of the completed value of the project or five million dollars ($5,000,000) and no coinsurance penalty provisions.
E. Professional Liability with limits no less than $2,000,000 per occurrence or claim, and $5,000,000 policy in the aggregate. The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after
completion of contract work. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the contract effective, or start of work date, the SiFi must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work. A copy of the claims reporting requirements must be submitted to the City for review.
F. Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $2,000,000 per occurrence or claim, and $5,000,000 policy aggregate. If the services involve lead -based paint or asbestos identification/remediation, the Pollution Liability policy shall not contain lead -based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
If the Contractor or SiFi maintains broader coverage and/or higher limits than the minimums shown above for all policies, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor or SiFi. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City to the extent necessary to cover any actual damages suffered by the City. ':1 _M- tfllm= in
Self -insured retentions must be declared to and approved by the City in its sole and absolute discretion. At the option of the City, SiFi shall cause the insurer to reduce or eliminate such self - insured retentions as respects the City, its officers, officials, employees, and volunteers; or SiFi shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City.
A. Additional Insured. The City of Downey, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of SiFi including materials, parts, or obiles ownedje�
hired, or borrowed by or on behalf of SiFi. General liability coverage can be provided in the .'orm of an endorsement to the SiFi's insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
B. Primary Insurance. For any claims related to this project, SiFi's insurance coverage vkWl _?%L?_s broad as ISO CG 20 0104 13 as respects the City; its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the SiFi's insurance and shall not contribute with it.
1 1 1 s" i F, f. .f •
i i i# i '1 i
•f .'; `f . • •' f' • • • •f`, •f +>i . is i i i
' I � I' 1 li i` •' `i F `f Ii i ;i
. ` f . i i
i i • i• "�. i � i _ i • - . -f .; • i ice. • !
1 1 i ' . . i k�
• • • i i •. i i i{ f� i ` f
i` •j s
1 1 I i i .f i . • i . i
.f• i "il i . `f -f i ► i . i i • .+` •, • ''i
1. Special Risks or Circumstances. City reserves the right to modify, at any time, thes7l; requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.
J. Contractor's Performance Bond. SiFi will require its general contractor or general contractor's affiliate to provide as of the start date of Construction to City a performance bond during the construction of the System in the amount of one million dollars ($1,000,000) in accordance with the City's bonding requirements.
K. SiFi's Maintenance Bond. As of the date of completion of construction of the System and on the first business day of each anniversary thereafter in order to support SiFi's obligations to restore the condition of the Public Way directly impacted by the construction of the System, SiFi will provide to the City and maintain or substitute throughout the Term of this Agreement, either of the following, at SiFi's sole option by providing ninety (90) days advanced written notice: (i) a maintenance bond in accordance with the City's bonding requirements, (ii) letter of credit from a bank of SiFi's choosing, or (iii) cash in escrow, subject to a mutually agreed escrow agreement, in an aggregate annual amount not to exceed five hundred thousand dollars ($500,000.00).
7.1 0bligations of the !LLq.. In addition to all other duties and obligations containe4l elsewhere in this Agreement, City has the following duties and obligations:
(i) Provide a single point of contact ("SPOC") for SiFi, which SPOC will be responsible to address all issues related to the System, providing coordination with and act as a liaison to City departments, ani serving as a communication and troubleshooting resource for SiFi. (ii) Offer the reasonable cooperation of all City departments with respect to relevant issues with respect to the System. Such cooperation will be supervised by the SPOC.
(iii) Subject to Section 3.2, provide SiFi and its representatives with access to all City property and all City assets and infrastructure for which a permit has been issued to SiFi for the installation, inspection, and maintenance of the System and for any other reasonable business purpose with respect to the System, following Substantial Completion, SiFi and/or any contractors it hires will be required to obtain encroachment permits and pay any related permit and inspection fees and comply with all other standard encroachment permit conditions of approval for future maintenance and/or repairs and/or alterations to its System located within the Public Way.
(iv) Participate in regular status meetings for the coordination of all matters related to the System.
(v) Provide efficient and diligent, as specified in Section 2.5, good faith review of all applications for permits submitted by SiFi or its representatives or contractors, including permits or other necessary items for construction work on the System within the Public Way. (vi) In the event of emergency repairs by the City or its contractors in the Public Way are necessary, coordinate the repairs with SiFi, any utilities or other users of the Public Way, in order to facilitate prompt repairs, such coordination to be supervised by the SPOC and the SPOC shall keep SiFi continually apprised of the status of such repairs. (vii) When reasonably able, City will provide SiFi with a least thirty (30) days advance notice of any work in the Public Way that requires the relocation of the System. In addition, where necessary, the City will provide SiFi with an opportunity to access the System at the time of the excavation in the Public Way by others. City shall, indemnify SiFi for any damage to the System caused by work by City employees in the Public Way.
7.2 OWiotions of SiFi. In addition to all other duties and obligations contained elsewhere in this Agreement, SiFi has the following duties and obligations:
(i) Work closely with the SPOC of the City and relevant City departments with respect to the construction of the System. (ii) Comply with all requirements of City for permit and Public Way use applications, to the extent they may be required. (iii) Maintain or provide for the maintenance of the System. (iv) SiFi and its contractors shall register with the State's Dig Alert safe excavation notification system; and
(v) SiFi shall not be required to relocate for any routine curb and gutter and sidewalk maintenance and repair including without limitation repair of potholes, milling and repaving of roadways; provided that, City and City's contractors shall exercise reasonable care and shall be liable to SiFi for any damages to the System.
Except for the above paragraph and when work to be performed by the City or its contractors is reasonably required to be within two inches (2") radius from the SiFi System in accordance with industry standards ("ConflictCity shall provide SiFi with not less than thirty (30) days written notice of such Conflict and City shall provide all reasonable
accommodations including excavating to the SiFi impacted facilities as reasonably requested by SiFi to allow and facilitate coordination with the City contractor in order for SiFi to protect, or to temporarily or permanently relocate the impacted portion of the System; provided that, SiFi shall bear the direct reasonable cost for (i) relocating the affected portion of the SiFi System; and (ii) additional delays or costs incurred by the City for such Conflict work. If SiFi fails to act on such notice of Conflict within thirty (30 days from receipt, City will not be liable to SiFi for any resulting damages to the System. If the City receives less than 30 days' notice of work that needs to be performed, including but not limited to emergency, exigent or reasonably necessary work, City shall provide notice to SiFi of such in a reasonable timeframe, including but not to limited to those situations set forth in this subsection (iv). SiFi will endeavor to facilitate an introductory meeting between the City and Service Provider(s) who use the Network to provide services to residential and business, and further will advise any such Service Provider(s) that the City may require fees as required by law or regulation. (vi) Provide response times in connection with repairs to be undertaken by SiFi and/or contractors retained by SiFi to establish the necessary personnel levels for required dispatch, repair, inventory, maintenance, and service of the System commencing upon
commencement of Construction as follows:
(i) Depending upon the type of fault or the method of
identification, the City shall notify SiFi of a suspected fault and the generation of a service ticket. The City shall issue to SiFi one of the following service ticket(s), for which SiFi shall provide the corresponding response time:
MMMUUM�
a) Description: Construction in
progress, capital improvement and other such
projects impacting or potentially impacting the SiFi
System and/or may impact the SiFi System, about
which the City is aware of in advance. Examples of
such projects include mill and fill projects, side
relocations, road reclamation projects, and other
similar projects, provided that any such
STANDARD repair is subject to the then current
State's DigAlert safe excavation laws and
regulations.
b) SiFi's contractor's response timi
On -site within thirty (30) calendar days
WMEUM
C8 Non -life -threatening Emergency Response
�
` -�_'�____--/
a) Description: Curb and gutter
projects, and utility (including telecommunications)
projects requiring relocation, repair, or replacemeni
that are impacted by the SiFi System and/or may
impact the SiFi System, provided that any such
NON-LTER repair is subject to the then current
State's DigAlert safe excavation laws and
*In -site within forty-eight (48) hours.
(3) Life Threatening Emergency Response
a) Description: Break or hit in the main
gas, main electric, main water, or main sewer or
storm line in the Public Way that has an immediate
and direct impact to the traveling safety of the
public in or around the Public Way, and wherein the
City's ability to implement repairs are impacted by
the SiFi System and/or City repairs may impact the
SiFi System.
b) SiFi's contractor's response time -
On -site within four (4) hours
(ii) Upon receipt of a service ticket as set forth herein, SiFi will use reasonable efforts to dispatch a technician to the specified fault location as identified by the City. SiFi, working with the City, will then make the determination as to whether the technician will proceed with the repair(s) if possible, wait for arrival of a City contractor, if necessary, for investigation and/or repair of work, or leave the site.
8.1. SiFi Breach or Default. In the event the City believes that SiFi has not complied with or is otherwise in default with regard to any material term of this Agreement, the City shall promptly notify SiFi in writing with specific details regarding the exact nature of the alleged noncompliance or default (a "City Breach Notice"). City agrees that it shall not issue a City Breach Notice and shall not raise any claims for breach against SiFi, if such breach would not
have occurred or such claim would not have been raised had the City issued a permit(s) required and when required, when SiFi has provided the reasonably required information for such a permit, to construct the System or any part thereof to SiFi or its contractor(s), or if City's breach of this Agreement or conduct by City, excluding a legitimate stop notice or similar notice by City, causing such alleged breach that materially interferes with SiFi's ability to perform its obligations under the Agreement.
8.1.1 Siffs 1�kht to Care q"k�p�. SiFi shall have thirty (30) calendar days from its receipt of a City Breach Notice (the "Initial SiFi Cure Period") to:
(i) respond to the City, contesting the assertion of
noncompliance or default and in such event, the Parties shall use commercially reasonable efforts to promptly resolve such contest and to the extent the Parties are unable to resolve such contest within thirty (30) calendar days of SiFi's response, each Party shall be entitled to seek any and all rights and remedies available to it at law or in equity to resolve such contest; or
(ii) cure an actual default or noncompliance; provided, however, in the event that the default is curable but due to the nature of the default or noncompliance, such default or noncompliance cannot be cured within the Initial SiFi Cure Period, so long as SiFi initiates reasonable steps to remedy and continuously and diligently uses all reasonable efforts to cure such default or noncompliance promptly and notifies the City of the steps being taken and the projected date that they will be completed, the Initial SiFi Cure Period shall be extended for a reasonable amount of time to permit such cure, but not to exceed sixty (60) days from SiFi's receipt of a City Breach Notice (the "Extended SiFi Cure Period" and together with the Initial SiFi Cure Period, the "SiFi Cure Period").
W4104"IMS M-
(i) Except as provided in Sections 8.1.2(ii), (iii) and (iv) below which shall control in connection with the events described therein, if SiFi fails to cure any actual noncompliance or default as provided in Section 8. 1.1 (ii) above within the SiFi's Cure Period, the City may:
(a) seek specific performance of any provision
of this Agreement which lends itself to such remedy as an alternative to money damages;
M-3��
(c) hire a contractor to complete repairs/work
and SiFi to pay actual market costs plus overhead; or
(d) in the event of the breach of, noncompliance
with or default under any material term of this Agreement, terminate this Agreement and seek any and all rights and remedies available to it at law or in equity.
Subject to Section 10.2 below, in the event SiFi fails to commen Construction on or before the Construction Commencement Deadline accordance with Section 4.1 above and subsequently fails to commen Construction within the SiFi Cure Period, the City may ternmninate th Agreement by written notice to Sil'i and neither Party shall have a liability or obligation under this Agreement.
(iii) Subject to Section 10.2 below, in the event SiFi fails to complete construction of the System by the Construction Completion Deadline in accordance with Section 4.1 above and subsequently fails to complete said construction within the SiFi Cure Period, the City may (i) terminate this Agreement by written notice to SiFi, in which event neither Party shall have any liability or obligation under this Agreement; or (ii) permit SiFi to continue all network operations necessary to maximize use of the existing FON in accordance with this Agreement; provided, however the City shall have authority over all extensions of the FON in the Public Way. In the event City elects to permit SiFi to continue all network operations, such permission may include mutually agreed and executed amendments of this Agreement. In addition, prior to such termination by City, the City and SiFi shall meet in person or by video meeting, and both SiFi and the City shall both utilize good faith efforts to resolve any dispute. SiFi shall at all times retain ownership of the System unless abandoned under Section 2.2.2.
(iv) Subject to Section 10.2 below, at any time after Partial Operation is achieved, in the event no internet, voice, data, or video service of any kind is capable of being provided over the System for a period, but excluding the duration of any Force Majeure per Section 10.2, in excess of ten (10) consecutive days and SiFi fails to restore such capability within the SiFi Cure Period, the City may terminate this Agreement by written notice to SiFi. In addition, prior to such termination by City, the City and SiFi shall meet in person or by video meeting, and both SiFi and the City shall utilize good faith efforts to resolve any dispute. SiFi shall at all times retain ownership of the System unless Z!��
(v) Notwithstanding anything to the contrary in this Agreement, in no event shall the City be permitted to terminate this Agreement if the City is in breach of or default under this Agreement.
(vi) Require SiFi to remove any above ground infrastructure and restore pavement to its original condition
8.2 Cily Breach or Default. In the event SiFi believes that the City has not complied with or is otherwise in default with regard to any term of this Agreement, SiFi shall promptly notify the City in writing with specific details regarding the exact nature of the alleged noncompliance or default (a "SiFi Breach Notice"). The failure to promptly provide such notice, however, shall not act as a waiver of any rights and remedies of SiFi hereunder unless and only to the extent that the City is materially prejudiced by such failure.
8.2.1 ' Citv's Right to Cure or Respond. The City shall have (30) days from its receipt of a SiFi Breach Notice (the "City Cure Period"); provided that the City Cure Period for a failure of the City to review permit 9iLv-y-nk issue a yermit(s) necessary, to construct the System as reQuim A - under Sections 3.2 and 7.2.1(iv) (a "Permit Issuance Breach") shall be ten (10) business days from its receipt of a SiFi Breach Notice to:
(i) respond to SiFi, contesting the assertion of noncompliance or default and in such event, the Parties shall use commercially reasonable efforts to promptly resolve such contest and to the extent the Parties are unable to resolve such contest within thirty (30) calendar days of the City's response, each Party shall be entitled to seek any and all rights and remedies available to it at law or in equity to resolve such contest; or (ii) cure an actual default or noncompliance; provided, however, in the event that the default is curable, but due to the nature of the default or noncompliance, such default or noncompliance cannot be cured within the City Cure Period, so long as the City initiates reasonable steps to remedy and continuously and diligently uses all reasonable efforts to cure such default or noncompliance promptly and notifies SiFi of the steps being taken and the projected date that they will be completed, the City Cure Period shall be extended for a reasonable amount of time to permit such cure, but not to exceed sixty ( 60) days from the City's receipt of a SiFi Breach Notice (the "Extended City Cure Period"); provided further, however, no Extended City Cure Period shall apply to a Permit Issu,,?.nce Breach.
8.2.2 SiFi JUAhk "d Remedies. If the City fails to cure any actual noncompliance or default as provided in Section 8.2.1(ii) above within the applicable City Cure Period, SiFi may:
ZMERM
(i) seek specific performance of any provision of this Agreemelm which • itself to such remedv as an alternative to monev damaee.V (ii) in the event of the breach of, noncompliance with or default under any material term of this Agreement, terminate this Agreement • seek any and all rights and remedies available to it at law or in equity.
8.3.1 At any time prior to commencing Construction or in the event the City fails to comply with the requirements of the Agreement, SiFi shall have the immediate right, at its option, upon written notice to the City to terminate this Agreement and shall be entitled to any and all other rights and remedies available to it at law or in equity.
8.3.2 • Party shall have the right, at its option, •i notice to tIM other Party to tenninate this Agreement if the other Party becomes ( insolvent, admits in writing its inability to pay its debts as they matur makes an assignment for the benefit of creditors, or becomes subject direct control of a trustee, receiver or similar authority, or (ii) subject to a, It.1t
bankruptcy or • proceeding •" federal, state • • sta u
which is not rescinded or dismissed within thirty (30) days. ------------ M
8.4.1 The City agrees to indemnify, defend, and hold harmless SiFi and its affiliates and their respective directors, officers, managers, members, equity and debt holders, partners, employees, contractors, agents and representatives and their heirs, successors and assigns at the City's sole expense • and •• any and all claims, suits, and demands • (collectively, "Damages"), arising out of third party claims resulting from (i) • • this • in any material respect by the City • (ii) the City's willful misconduct or gross negligence in its performance of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the indemnity obligations set forth herein will survive expiration or termination of this Agreement. The defense obligation shall be required whenever any claim, action, complaint, or suit asserts as its basis the acts or omissions of the City, its officers, agents, and/or employees, whether or not the City, its officers, agents, and/or employees are specifically named or otherwise asserted to be liable. Notwithstanding the foregoing, the City shall not be liable for the defense or indemnification of the SiFi Indemnitees for claims, actions, complaints or suits to the extent arising solely out of the negligence or willful misconduct of the SiFi Indemnitees.
EMEOM
8.4.2 SiFi shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner which actually or allegedly arise out of or are incident to any alleged acts, omissions, negligence or willful misconduct of SiFi, its officials, officers, employees, agents, and contractors/subcontractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including and expenses except where caused by the active negligence, sole negligence, or willful misconduct of the City its officers, officials, employees and volunteers. SiFi shall defend, at its own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, representatives, consultants, agents or volunteers. SiFi shall pay and satisfy any judgment, award or decree that may be rendered against the City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. SiFi shall reimburse the City, its officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. SiFi's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City its officials, officers, employees, agents or volunteers. In no event shall City be liable for any damage or cost arising out of the failure of the System to provide Services except for failures directly caused by City's acts or omissions. via 17-1111RAMM
-7,14 gPC reemem SHU11 11111ILe(0 I 1L11C 111glicu0U0a r l Irm 111111111 11l-STs available applicable insurance coverage. Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 8.5 will survive expiration or termination of this Agreement.
a—KOA-610MIA
9.1 If the Parties fail to mutually and promptly resolve, all claims, disputes or controversies arising out of, or in connection with, the breach, interpretation, application, or enforcement of this Agreement, or arising out of, or in connection with, the System, shall be decided in a court • law. The sole and exclusive venue for all claims, disputes or controversies arising out of, or in connection within the breach, interpretation, application, or enforcement of this Agreement, or arising out of, or in connection with, the System, shall be the United States District Court in Los •' County.
10. Miscellaneous Provisions
10.2 Force Majeurg. Except as otherwise expressly set forth in this Agreement, SiFi will not be held in default under, or in breach or noncompliance with, the provisions of this Agreement, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of this Agreement), where such noncompliance or alleged defaults occurred or were caused by any of the following events (each a "Force Majeure Event"): failure by the City to issue permit(s) required to construct the System or any part thereof to SiFi or its contractor(s), failure by the City to comply with this Agreement, conduct by the City that materially interferes with SiFi's ability to perform, labor strike, riot, war, earthquake, flood, hurricane, pandemic, drought, tornado, or other act of nature that interferes with SiFi's ability to perform, labor disputes, failure of utility service necessary to construct the System, governmental, administrative or judicial order, or other event that is beyond SiFi's reasonable control. Force Ma eure Events also include work delays caused by j
waiting for (i) utility providers to service or monitor their own utility infrastructure on which SiFi's fiber optic cable and/or equipment may be deployed, as well as unavailability of materials and/or reasonably qualified labor to perforin the work or (ii) third parties' acts or omissions within the Public Way which materially interfere with SiFi's ability to perform its obligations under this Agreement.
10.3 Notice. All notices and communications hereunder shall be in writing and shall be served upon the other party by hand delivery, nationally recognized overnight delivery service, United States certified mail, return receipt requested, or by electronic mail and addressed ?s follows:
IF TO THE CITY:
City of Downey,
City Hall
11111 Brookshire Avenue,
Downey, CA 90241
An: Delfino R. Consunji
Email: [email protected]
WMEEMSMIERM
City of Downey
ATTN: City Attorney
I I I I I Brookshire Averati,
Downey, CA 90241
Raffiel-=
SiFi Networks Downey LLC
103 Foulk Road, Suite 500
Wilmington, DE 19803
gff!, •�
WMERM
10.10 No Rights to the System�. The City • agrees that, • as expressly set forth in this Agreement, it does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the System, throughout the term of this Agreement. Except as provided in Section 8.1.2 (iii) and Section 8.1.2 (iv) above, SiFi shall, at all times, retain title to and ownership of the System and all future extensions of the System, and shall have the right to lease the System or parts thereof to a provider of internet, data, voice, video and other services.
10.11.1 The City represents and warrants to SiFi that: (a) it has full authority (including the authority required by any applicable law, ordinance, rule or regulation) to enter into and perform this Agreement and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby are within the right, power and authority of the City and have been duly authorized by all necessary action on the part of City, (b) this Agreement has • duly executed and delivered • the City and it constitutes a legal, valid and binding agreement • the City enforceable against the City in accordance with its terms (except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity) and (c) the execution and delivery of this Agreement by the City and its performance hereunder and thereunder will not violate any law, ordinance, rule, or regulation applicable to the City.
10.11.2 SiFi represents and warrants to the City that: (a) it has full authority to enter into and perform this Agreement and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated • and • are within the power and authority • SiFi and have been duly authorized by all necessary action on the part of SiFi, (b) this Agreement has been duly executed and delivered by SiFi and it constitutes a legal, valid and binding agreement of SiFi enforceable against SiFi in accordance with its terms (except as • may be limited • applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' • •- and • •- principles of equity); (c) the execution and delivery of this Agreement • SiFi and its performance hereunder and thereunder will not violate any law, rule, or regulation applicable to SiFi; and (d) prior to commencement of Construction, SiFi will provide to City a letter for SiFi's financial partners evidencing financial • to achieve Substantial Completion.
I M I a 1 -141, W, I Fa
ZMEOM
a 0 L1 W M TO UT ra-4 L,
OW-197,011M NYF#Tma I mi-
10.13 No Partnership. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the City and SiFi or any other relationship other than a contractual relationship as expressly set forth in this Agreement.
Neither Party shall in any manner act or indicate to any third party that is acting as the agent of the other Party. SiFi shall at all times remain an independent contractor. Neither Party shall control or direct the day-to-day affairs of the other Party, or their mode or method of performing their respective obligations hereunder.
10.14 11gA4jgg& The headings and captions of this Agreement are solely for ths convenience of the Parties and shall not be deemed to modify or vary any of the substanti-V-i terms thereof.
10.15 Construction. Each of the Parties acknowledge that each Party to this Agreement has been represented by counsel in connection with this Agreement. Legal or equitable (wcrinci%les that mi - ht require the construction of this A-greement or ankwcrovision hereof against the party drafting this greement shall not apply in any construction or interpretation of this Agreement and is expressly waived. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. The words "hereof', "herein" and "hereunder" and words of like import used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. References to Articles, Sections, and clauses are to Articles, Sections and clauses of this Agreement unless otherwise specified.
Any singular term in this Agreement will be deemed to include the plural, and any plural term the singular. Whenever the words "include", "includes" or "including" are used in this Agreement, they will be deemed to be followed by the words "without limitation", whether or not they are in fact followed by those words or words of like import. "Writing", "written" and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. 00��
10.16 Cotjftterpart�. This Agreement may be signed in any number of counterparts, each of which will be deemed an original, with the same effect as if the signatures were upon the . instrument. a signed copy of Agreement delivered by •csimile, e-mail or other of electronic transmission (including PDF) shall be deemed to have the same legal effect as delivery of original signed copy of Agreement.
10.17 Further Assurances. Each Party agrees that it will execute and deliver such other documents and take such other action as may be reasonably requested by the other Party to effectuate the purposes and intention of this Agreement.
10.18 2jo Y# r. No provision of this Agreement may be waived unless such waiver is in writing and signed by the Party against whom the waiver is to be effective. No failure or delay by Party in exercising any • power or privilege hereunder shalloperate as _' thereof,nor shallany singleor partial exercise. .• preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach. • . rr•. • •
IN WITNESS WHEREOF, the Parties have caused this Development Agreement to ty's executed as of the day and year stated above.
CITY OF DOWNEY, a California
Municipal Corporation and Charter City
Dated: 2022
By:
Blanca Pacheco, Mayor
FEITUIR"
City Clerk
1UWiK9jK91"
a Delaware limited liability company Dated: 2022
By:
Its:
Wmaf
l i �
[W4,41111-189, MV
SPECIFICATIONS -SHELTERS -CABINETS
UIBER CITY TYPICAL SPECIFICATION%
2/9/2021 1
� � ��}
..� � <
2.� � ©
Networ ;,� \� � : <�
Name:
Name:
Position:
Position:
Date:
Date:
Signature:
Signature:
ROADWAY WITH A CURB RETURN
RAN \\ RAN
2x-. _ VARfE&' 1-21
S/W S/W
EOP EOP
FOC FOC
a
a a
I A.C. PAVEMENT I
( (
A
MICROTRENCH PATHWAY (TYP.)
CATCH BASIN (STORM DRAIN) PlAN I
EW
TREATED AS UTILITY CROSSING SCALE: NTS
SEE NOTE BELOW.
FASTPATCH 8400
WITH A COLOR
MATCHING
SAND FINISH
ROADWAY CONCRETE CURS & CUTTER
TOTAL
REINSTATEMENT
COVER:8"
TRENCH DEPTH
12" MAX.. REINSTATEMENT MATERIAL -CTF
OR EQUIVALENT
Vl"-2" SAND COVER
1.25" (TYP) - 2" (MAX) �--
6-01161tollml714��1
t�
ROADWAY.�
WITH '\ CURB
RETURN . .
lkirlicam i
ROADWAY WITHGUTTER - VARIANT
RAN
VARIES
SAWN I GL SAN
EOP EOP
FOC FOC
I I'
A.C. PAVEMENT
G`a
t
WITH A COLOR
MATCHING
SAND FINISH
CONCRETE CURB & GUTTER
i i1
NCA DEPTH
12 pci<., "REINSTATEMENT MATERIAL-CTF
OR EQUIVALENT
p -1"-2" SAND COVER
i 25" (TYP) - 2" (MAX)
SECTION VIEW A -A
MICROTRENCH PATHWAY (TYP.) -/
FASTPATCH 8400
WITH A COLOR
'.MATCHING
SAND FINISH
DEPTH
A� -REINSTATEMENT MATERIAL -CTF
OR EQUIVALENT
6.1\,"-2" SAND COVER
1,25"(FYP)-2"(MAX)
i'. NO. RENSIONS
ANY z RELEAM
WITH A CURB
STD DRAWING
RETURNA A A NOT TO SCALE
RA li/11�2020 '.
11 /11 /2020 1 (p)
ROADWAY WITH CURB AND GUTTER - VARIANT B
v A
RM--*-� 2'— —VARIES—i J-2' RAN
I
sfW S[W
EOP 4- ,—EOP
FOC FOC
A.C. PAVEMENT
8 12.5'MINIMUM RADIUS
41 2'xl'LATCH
�
PLAN VIEW A— MICROTRENCH PATHWAY (TYP.)
.FA
ST
P
AT
CH
9 40
0 WITH A COLOR
MATCHING SAND FINISH
AAM
rONCREM C DAOUTTER
To ALJ—
REINSTTEMENT .
fRENC DEPTH REINSTATEMENT MATERIAL -CTF
OR EQUIVALENT
1 '-2" SAND COVER
1,2 (Typ)_21. (MAX)—1
SECTION VIEW A -A
FASTPATCH 8400
WITH A COLOR
OR
SAND FINISH
MAY ROADWAY
'o u
REINSTATEMENT
TPENC DEPTH
12" MAX REINSTATEMENT MATERIAL -CTF
OR EQUIVALENT
1`2" SAND COVER
1,25" (TYP) - 2" (MAX) 4 1_
SECTION VIEW B-B
Na REwsms By I DALE
Jm 0 ROADWAY 2 ARM10 REIE" RA 1 /11/2.020
WITH A CURB STD DWG
Networle, RETURN VARIANT B INOT TO SCALE-
I J loin;
" '\
s
EOP^--_
A . PAVEMENT
4PATC�H
12,5°MINIMUM RADIUS2'x1° PATCH 2'x
PLAN I
FASTPATCH 8400
WITH A COLOR
MATCHING
SAND FINISH
.°
CONCRETE CLIRO4 GUTF ER
REINSTATEMENT
,N09 DEPTH
921 --REINSTATEMENT MATERIAL-CTF
OR EQUIVALENT
'1"-2" SAND COVER
1.25" (TYP) - T' (MAX) —1 I—
R
S[W
EOP
MICROTRENCH PATHWAY (TYP.)
12.5' MINIMUM RADIUS
FASTPATCH 9400-
WITH A COLOR
MATCHING
SAND FINISH
.NCA DEPTH
12• aREINSTATEMENT MATERIAL-CTF
OR EQUIVALENT
$ q p 1"-2"SAND COVER
T 1.25"(TYP)-2"(MAx)^-.w-1 { .
SECTION VIEW B-B
mom
ROADWAY
WITH l I I; l I I:
r�
,RETURN
h' I ' I ,
ROADWAY CROSSING
SSA
12.5° MINIMUM RADIUS
12.5° MINIMUM RADIUS 2 VARIES r2
R t R/W
S/W I S/W
EOP EOP
FOC FOG
cm
M
3 A.C. PAVEMENT
i MICROTRENCH PATHWAY (IYP.)
� PLAN VIEW
FASTPATCH 8400.-
WITH A COLOR
MATCHING
SAND FINISH
It m
CONCRETE cuka b DLAmp
J
TO "AL
REINSTATEMENT
CO ®FE 8"
;A DEPTH
12• AX- `REINSTATEMENT MATERIAL-CTF
OR EQUIVALENT
I'•2`° SAND COVER
1 25" (TYP) - 2' (MAX) SECTION VIEW A -A
-
FASTPATCH 8400
WITH A COLOR
MATCHING
SAND FINISH
W DEPTH
IAAX REINSTATEMENT MATERIAL -CTF
CR EQUIVALENT
1 "-2" SAND COVER
1,25" (TYP) - 2" (MAX) —,.A
I —
FUSIONS BY 'DATE
ROADWAY
'�[�y� 2 i RA 11/11/2020
1 1l_ 1 �l JL
CROSSINGSTD DWG
NOT TO SCALE "/'1/20200 1 D
STANDARD CHAMBER/INLET PROTECTION
fEATURES'.
• 24' X 36" X 24' (open floor) (actual dimensions on drawing) • CHAMBER — SHIELD X COVER- Tier 22 Load Rated
(ANSI/SCTE 77: 2013)
- (2) Cover locking Auger bolts, Hex (9/16") or Penta
(7/8") head with washer
• (2) Non -Seizing Fastening System, Field Replaceable
• (4) Embedded Composite Rack Support
• (2) Lifting slot equipped with stainless steel pin (slot is approximately 2 Y.'xY")
• (2) Winterized Cable Drop slide (I V X 1 Y.")
(1) Logo Disk
WEIGHT 4_SHIPPING*
• Cover Weight: 47 lbs
• Box Weight: 55 lbs
• Assembly Weight: 102 lbs
PERFORMANCE TESTING:
• ANSI/SCTE 77; 2013 - TIER 22 Rated (33,750 lbs)
• A53996 — Class C
• EN 124 Class 8125
• ASTM C1028-07 & AS-4586 (Slip Resistance)
• 10,000 Hour Xenon -Arc Exposure (No fiber -bloom)
• ASTM D635-06 (Flammability)
CURB
OPENING
OVERFLnW
AGGREGATE
POUCH -
CURB FILTER
MANHOLE
Inside Dimensions
Length VAdth Depth
34 %" i 22 Y." 2r
[873] i [578] [533]
Anti -Slip Tread Pattern
murimm
EXCESS SOXX MATERIAL
TO BE DRAWN IN AND TIED OFF TO
2X2 WOODEN STAKE (TYR)
CURB
STORM GRATE
FILTREXX SOXX
CURBSIDE OPTION "A" PLAN CURBSIDE OPTION "B" PLAN
[11LET PROTECTION
C30fl:vl" l(.11,11, - - ----- - - - -----
STANDARD
CHAMBER/INLET
PROTECTION
C��
TYPICAL AGGREGATION
SHELTER
3'
PLAN VIEW
----------------
®AGGREGATE WALL PANEL -ALL SIDES (TYP.)
T � i �
__1 _. r __
1.1 V,.-.
FUTURE
NVAG
UNIT
*. no
FUTURE
UNIT
UNIT
mop
ft REMSIONS BY I DATE
TYPITYPICAL APPRDWD FELAM RA 11/11/2020
AL
AGGREGATION STD DWG UGG
SHELTER 11/11/2020
NOT TO SCALE
Q
t
NO.REVISMS
2 APPROVIM RELEASE
TYPICAL
AGGREGATIONSHELTER STD DWG
NOT TO SCALE
4LL
CRUSHED ROCK
SURFACING OR GRASS
FEATURES:
• 30" X 46" X 36" (open floor) (actual dimensions on drawing) • CHAMBER — SHIELD X Split COVER- Tier 22 Load
Rated (ANSI/SCTE 77: 2013)
• (4) Cover locking Auger bolts, Hex (9/16") or Penta
(7/8") head with washer
• (4) Non -Seizing Fastening System, Field Replaceable
• (4) Embedded Composite Rack Support
• (1) Lifting slot equipped with stainless steel pin (slot is approximately 2 %"x%")
• (4) Winterized Cable Drop slide (1 Y." X I Y..")
• (1) Galvanized Center Ream
• (2) Logo Disk
WEWbL SiiIPPIUG
• Cover Weight: 50 Ibs (Per Half)
• Box Weight: 129 Ibs
• Assembly Weight: 229 Ibs
PERFORMANCE TESTING:
ANSI/SCTE 77: 2013 -TIER 22 Rated (33,750 Ibs)
• AS3996 — Class C
• EN124 Class B125
• ASTM C1028-07 & AS-4586 (Slip Resistance)
• 10,000 Hour Xenon -Arc Exposure (No fiber -bloom)
• ASTM D635-06 (Flammability)
Covered Lift Pin
30 �]Gll
1; oew
CHAMBER [1314)
CABINET &
AGGREGATION
SHELTER
Inside Dimensions
Q00®UDUo
QUQ®nn��Unn�
o QQUUUQ
Anti -Slip Tread Pattern
Immam
I NU 4
FAB DETAILS
Hardscape Lateral Typical With FAB Installed
t ROW Obstruction
Satarat duct NUAM460n can afther be krrstgfiod by
(,,,,,,',,FAB (Fiber Access Be.)
cutting a narrow micro Ieach from above, across ..
the gutter pan curb & sidewalk & cold joint, or -
boa. •.,. "
ROW
boring from the street beneath the gutter pan, curb
& sjdawatlt. An at 6V "M cut at the odge of ROMaa
10'deep will allow FAB (Fiber Access Box) to be
Insfaged toe base ofdoct totriosAf on W'A 1N' .....
Installs. This core cut would allow the FAB to be
Installed neatly with minimum reinstatement and
.:
would maintain the Integrity and asphetic look of
q)
the sidewalk without the need to replace whole
concrete sidewalk sections.
6" diameter core an 10" deep with
5.4"diametor pedestrian rated FAB (Fiber
Access Boa) with slurry fill seal and
Micro Trench
Curb Marker secured with cast Iron bolted access i with r o�. tetnniAtod ",
Commercial In Confidence NTS iF
FAB AT ROW
Hardscape Lateral Typical With FAB Installed c
Curb & Conduit Installed Obstruction
Lateral duct Is Installation can either be installed by cutting a narrow micro trench from above, across the
FAB (Fiber Access Be.)
gutter pan curb & sidewalk & cold Joint, or boring from the street beneath the gutter pan, curb. A neat 6"core
cut a% If* ba4ka9eeaabAO"'d4CPwilt Allow FAB pF61@x
t WW��
p
Access Box{ to be Installed for ease of duct retrieval on servke installs. To reach the ROW a slot cut would be
N
made to just below the concrete base. A small conduit
would then be installed to the ROW from the FAB with
1 q
slow bend and cap for future use on drop installs when
extending the Lateral duct to the property through the
SSS
Pm installed conduit. This slot cut would be reinstated with and suitable fill In approval with DPW. This
c
d
FAO be
method wo4NPd Aftow Ohe and torrdaatt M
Installed neatly with minimum reinstatement and
"'�—
would maintain the Integrity and asphetic look of the
6" diameter core cut 10" deep
sidewalk without the need to replace whole concrete
with 5.4"diameter pedestrian
N'
sidewalk sections.
rated FAB (Fiber Access Reel Conduit installed In 1"
1 with slurry fill seal and slot cut across
CotB f4tatka:.
*,
sacut4d wftPr east ltaxa baked sidewalk cold joint or
gg
ti J
Micro Trench
reinstated with R" cover
Ac,t"%c t. seamtojust below
^�.,, ;onsf&tlebase
! I
r
1 {
( :
Commercial In Confidence NTS
FAB AT BOC
N0...,REMSIONS BY I DATE
2 "APPROMVM RA 111/11/2020
F]ETAILLS STD DWG
INOT TO SCALE "/"/2oz°